By: Landgraf H.B. No. 4333
A BILL TO BE ENTITLED
AN ACT
relating to a defense under the Solid Waste Disposal Act for persons
engaged in certain scrap metal recycling transactions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 361.275(a), Health and Safety Code, is
amended to read as follows:
(a) Except as provided by Section 361.2755, a [A] person
responsible for solid waste under Section 361.271 is liable under
Section 361.272 or 361.273 unless the person can establish by a
preponderance of the evidence that the release or threatened
release was caused solely by:
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third person; or
(4) any combination of Subdivisions (1), (2), and (3).
SECTION 2. Subchapter I, Chapter 361, Health and Safety
Code, is amended by adding Section 361.2755 to read as follows:
Sec. 361.2755. SCRAP METAL RECYCLING TRANSACTIONS;
DEFENSE. (a) In this section:
(1) "Consuming facility" means the facility where the
scrap metal was handled, processed, reclaimed, stored, or otherwise
managed by a person other than the person who arranged for recycling
of the scrap metal.
(2) "Scrap metal" means bits and pieces of metal parts
(e.g., bars, turnings, rods, sheets, or wire) or metal pieces that
may be combined together with bolts or soldering (e.g., radiators,
scrap automobiles, railroad box cars), which when worn or
superfluous can be recycled. The term does not include:
(A) a shipping container, whether intact or not,
that:
(i) has a capacity of not less than 30
liters and not more than 3,000 liters; and
(ii) has any hazardous substance contained
in or adhering to the container, other than metal bits and pieces or
a hazardous substance that forms an integral part of the container;
or
(B) any item of material that contained
polychlorinated biphenyls at a concentration in excess of 50 parts
per million or any new standard adopted pursuant to applicable
federal laws;
(C) any material excluded from this definition by
commission rule; or
(D) any material excluded from the definition of
scrap metal under 42 U.S.C. Section 9627(d) by a federal
regulation.
(b) This section:
(1) applies only to a scrap metal transaction that
occurs on or after November 29, 1999; and
(2) does not apply to any material that is not scrap
metal.
(c) A person who arranges for recycling of scrap metal,
other than a person described by Subsection (f), is not responsible
for the scrap metal under Section 361.271(a)(3) or (4) if the person
can establish by a preponderance of the evidence that the following
criteria were met at the time of the recycling transaction:
(1) the scrap metal met a commercial specification
grade;
(2) a market existed for the scrap metal;
(3) a substantial portion of the scrap metal was made
available for use as feedstock for the manufacture of a new saleable
product;
(4) the scrap metal could have been a replacement or
substitute for a virgin raw material, or the product to be made from
the scrap metal could have been a replacement or substitute for a
product made, in whole or in part, from a virgin raw material;
(5) the person was in compliance with any applicable
regulations or standards regarding the handling, processing,
reclamation, storage, transport, or management of the scrap metal
or other activities associated with the recycling of scrap metal;
(6) the person did not melt the scrap metal prior to
the transaction; and
(7) the person exercised reasonable care to determine
that the consuming facility was in compliance with the substantive
provisions of any:
(A) federal, state, or local environmental law or
regulation applicable to the handling, processing, reclamation,
transport, or storage of scrap metal or other management activities
associated with scrap metal; or
(B) compliance order or decree issued pursuant to
a law or regulation described by Paragraph (A).
(d) For purposes of Subsection (c)(6), thermal separation
of two or more materials due to differences in melting points of the
materials does not constitute melting.
(e) For purposes of Subsection (c)(7), reasonable care
shall be determined using criteria that include:
(1) the price paid for the scrap metal in the recycling
transaction;
(2) the ability of the person to detect the nature of
the consuming facility's operations concerning the facility's
handling, processing, storage, transport, or reclamation of scrap
metal or other management activities associated with the scrap
metal; and
(3) the result of inquiries made by the person to the
appropriate federal, state, or local environmental agency
regarding the consuming facility's past and current compliance
with:
(A) substantive provisions of any law,
regulation, order, or decree described by Subsection (c)(7); and
(B) any requirement to obtain a permit applicable
to the handling, processing, storage, transport, or reclamation of
scrap metal or other management activity associated with scrap
metal.
(f) Subsection (c) does not apply to a person who arranges
for the recycling of scrap metal if the person:
(1) had an objectively reasonable basis to believe at
the time of the scrap metal transaction that:
(A) the scrap metal would not be recycled;
(B) the scrap metal would be burned as fuel or for
energy recovery or incineration; or
(C) the consuming facility was not in compliance
with:
(i) a substantive provision of any law,
regulation, order, or decree described by Subsection (c)(7); or
(ii) a requirement to obtain a permit
applicable to the handling, processing, transport, storage, or
reclamation of the scrap metal or other management activity
associated with the scrap metal;
(2) had reason to believe that hazardous substances
had been added to the scrap metal for purposes other than processing
for recycling; or
(3) failed to exercise reasonable care with respect to
the management, processing, storage, transport, reclamation, and
handling of the scrap metal, including adhering to customary
industry practices current at the time of the recycling transaction
designed to minimize, through source control, contamination of the
scrap metal by hazardous substances.
(g) For purposes of Subsection (f)(1), an objectively
reasonable basis for belief shall be determined using criteria that
include:
(1) the size of the person's business;
(2) customary industry practices, including customary
industry practices current at the time of the recycling transaction
designed to minimize, through source control, contamination of the
scrap metal by hazardous substances;
(3) the price paid for the scrap metal in the recycling
transaction; and
(4) the ability of the person to detect the nature of
the consuming facility's operations concerning the facility's
handling, processing, or reclamation of scrap metal or other
management activities associated with scrap metal.
(h) The commission may adopt rules as necessary to
administer this section, including rules excluding additional
materials from the definition of scrap metal.
(i) A person who commences an action for contribution
against a person who is not responsible for the scrap metal under
this section is liable to that person for all reasonable costs
incurred in defending that action, including reasonable attorney's
fees and expert witness fees.
(j) This section may not be construed to:
(1) affect any defenses or liabilities of any person
to whom Subsection (c) does not apply;
(2) create any presumption of liability against any
person to whom Subsection (c) does not apply; or
(3) affect the liability of a person under Section
361.271 (a)(1) or (2).
SECTION 3. The change in law made by this Act:
(1) does not apply to any judicial or administrative
action initiated by the commission that is pending or on appeal on
the effective date of this Act; and
(2) does not affect any final decision in a judicial or
administrative action that exists on the effective date of this
Act.
SECTION 4. This Act takes effect September 1, 2021.