Texas 2021 - 87th Regular

Texas Senate Bill SB1818 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	S.B. No. 1818
	1	+	By: Zaffirini S.B. No. 1818
	2	+	(Landgraf)
2	3
3	4
	5	+	A BILL TO BE ENTITLED
4	6		AN ACT
5	7		relating to a defense under the Solid Waste Disposal Act for persons
6	8		engaged in certain scrap metal recycling transactions.
7	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	10		SECTION 1. Section 361.275(a), Health and Safety Code, is
9	11		amended to read as follows:
10	12		(a) Except as provided by Section 361.2755, a [A] person
11	13		responsible for solid waste under Section 361.271 is liable under
12	14		Section 361.272 or 361.273 unless the person can establish by a
13	15		preponderance of the evidence that the release or threatened
14	16		release was caused solely by:
15	17		(1) an act of God;
16	18		(2) an act of war;
17	19		(3) an act or omission of a third person; or
18	20		(4) any combination of Subdivisions (1), (2), and (3).
19	21		SECTION 2. Subchapter I, Chapter 361, Health and Safety
20	22		Code, is amended by adding Section 361.2755 to read as follows:
21	23		Sec. 361.2755. SCRAP METAL RECYCLING TRANSACTIONS; DEFENSE.
22	24		(a) In this section:
23	25		(1) "Consuming facility" means the facility where the
24	26		scrap metal was handled, processed, reclaimed, stored,
25	27		transported, or otherwise managed by a person other than the person
26	28		who arranged for recycling of the scrap metal.
27	29		(2) "Scrap metal" means bits and pieces of metal
28	30		parts, such as bars, turnings, rods, sheets, or wire, or metal
29	31		pieces that may be combined together with bolts or soldering, such
30	32		as radiators, scrap automobiles, or railroad boxcars, which when
31	33		worn or superfluous can be recycled. The term does not include:
32	34		(A) a shipping container, whether intact or not,
33	35		that:
34	36		(i) has a capacity of not less than 30
35	37		liters and not more than 3,000 liters; and
36	38		(ii) has any hazardous substance contained
37	39		in or adhering to the container, other than metal bits and pieces or
38	40		a hazardous substance that forms an integral part of the container;
39	41		(B) any item of material that contained
40	42		polychlorinated biphenyls at a concentration in excess of 50 parts
41	43		per million or any new standard adopted pursuant to applicable
42	44		federal laws;
43	45		(C) any material excluded from this definition by
44	46		commission rule; or
45	47		(D) any material excluded from the definition of
46	48		scrap metal under 42 U.S.C. Section 9627(d) by a federal
47	49		regulation.
48	50		(b) This section:
49	51		(1) applies only to a scrap metal transaction that
50	52		occurs on or after November 29, 1999; and
51	53		(2) does not apply to any material that is not scrap
52	54		metal.
53	55		(c) A person who arranges for recycling of scrap metal,
54	56		other than a person described by Subsection (f), is not responsible
55	57		for the scrap metal under Section 361.271(a)(3) or (4) if the person
56	58		can establish by a preponderance of the evidence that the following
57	59		criteria were met at the time of the recycling transaction:
58	60		(1) the scrap metal met a commercial specification
59	61		grade;
60	62		(2) a market existed for the scrap metal;
61	63		(3) a substantial portion of the scrap metal was made
62	64		available for use as feedstock for the manufacture of a new saleable
63	65		product;
64	66		(4) the scrap metal could have been a replacement or
65	67		substitute for a virgin raw material, or the product to be made from
66	68		the scrap metal could have been a replacement or substitute for a
67	69		product made, in whole or in part, from a virgin raw material;
68	70		(5) the person was in compliance with any applicable
69	71		regulations or standards regarding the handling, processing,
70	72		reclamation, storage, transport, or management of the scrap metal
71	73		or other activities associated with the recycling of scrap metal;
72	74		(6) the person did not melt the scrap metal prior to
73	75		the transaction; and
74	76		(7) the person exercised reasonable care to determine
75	77		that the consuming facility was in compliance with the substantive
76	78		provisions of any:
77	79		(A) federal, state, or local environmental law or
78	80		regulation applicable to the handling, processing, reclamation,
79	81		storage, or transport of scrap metal or other management activities
80	82		associated with scrap metal; or
81	83		(B) compliance order or decree issued pursuant to
82	84		a law or regulation described by Paragraph (A).
83	85		(d) For purposes of Subsection (c)(6), thermal separation
84	86		of two or more materials due to differences in melting points of the
85	87		materials does not constitute melting.
86	88		(e) For purposes of Subsection (c)(7), reasonable care
87	89		shall be determined using criteria that include:
88	90		(1) the price paid for the scrap metal in the recycling
89	91		transaction;
90	92		(2) the ability of the person to detect the nature of
91	93		the consuming facility's operations concerning the facility's
92	94		handling, processing, reclamation, storage, or transport of scrap
93	95		metal or other management activities associated with the scrap
94	96		metal; and
95	97		(3) the result of inquiries made by the person to the
96	98		appropriate federal, state, or local environmental agency
97	99		regarding the consuming facility's past and current compliance
98	100		with:
99	101		(A) substantive provisions of any law,
100	102		regulation, order, or decree described by Subsection (c)(7); and
101	103		(B) any requirement to obtain a permit applicable
102	104		to the handling, processing, reclamation, storage, or transport of
103	105		scrap metal or other management activity associated with scrap
104	106		metal.
105	107		(f) Subsection (c) does not apply to a person who arranges
106	108		for the recycling of scrap metal if the person:
107	109		(1) had an objectively reasonable basis to believe at
108	110		the time of the scrap metal transaction that:
109	111		(A) the scrap metal would not be recycled;
110	112		(B) the scrap metal would be burned as fuel or for
111	113		energy recovery or incineration; or
112	114		(C) the consuming facility was not in compliance
113	115		with:
114	116		(i) a substantive provision of any law,
115	117		regulation, order, or decree described by Subsection (c)(7); or
116	118		(ii) a requirement to obtain a permit
117	119		applicable to the handling, processing, reclamation, storage, or
118	120		transport of the scrap metal or other management activity
119	121		associated with the scrap metal;
120	122		(2) had reason to believe that hazardous substances
121	123		had been added to the scrap metal for purposes other than processing
122	124		for recycling; or
123	125		(3) failed to exercise reasonable care with respect to
124	126		the handling, processing, reclamation, storage, transport, and
125	127		management of the scrap metal, including adhering to customary
126	128		industry practices current at the time of the recycling transaction
127	129		designed to minimize, through source control, contamination of the
128	130		scrap metal by hazardous substances.
129	131		(g) For purposes of Subsection (f)(1), an objectively
130	132		reasonable basis for belief shall be determined using criteria that
131	133		include:
132	134		(1) the size of the person's business;
133	135		(2) customary industry practices, including customary
134	136		industry practices current at the time of the recycling transaction
135	137		designed to minimize, through source control, contamination of the
136	138		scrap metal by hazardous substances;
137	139		(3) the price paid for the scrap metal in the recycling
138	140		transaction; and
139	141		(4) the ability of the person to detect the nature of
140	142		the consuming facility's operations concerning the facility's
141	143		handling, processing, reclamation, storage, or transport of scrap
142	144		metal or other management activities associated with scrap metal.
143	145		(h) The commission may adopt rules as necessary to
144	146		administer this section.
145	147		(i) A person who commences an action for contribution
146	148		against a person who is not responsible for the scrap metal under
147	149		this section is liable to that person for all reasonable costs
148	150		incurred in defending that action, including reasonable attorney's
149	151		fees and expert witness fees.
150	152		(j) This section may not be construed to:
151	153		(1) affect any defenses or liabilities of any person
152	154		to whom Subsection (c) does not apply;
153	155		(2) create any presumption of liability against any
154	156		person to whom Subsection (c) does not apply; or
155	157		(3) affect the responsibility of a person for solid
156	158		waste under Section 361.271(a)(1) or (2).
157	159		SECTION 3. The change in law made by this Act:
158	160		(1) does not apply to any judicial or administrative
159	161		action initiated by the Texas Commission on Environmental Quality
160	162		that is pending or on appeal on the effective date of this Act; and
161	163		(2) does not affect any final decision in a judicial or
162	164		administrative action that exists on the effective date of this
163	165		Act.
164	166		SECTION 4. This Act takes effect September 1, 2021.
165		-	______________________________ ______________________________
166		-	President of the Senate Speaker of the House
167		-	I hereby certify that S.B. No. 1818 passed the Senate on
168		-	April 21, 2021, by the following vote: Yeas 31, Nays 0.
169		-	______________________________
170		-	Secretary of the Senate
171		-	I hereby certify that S.B. No. 1818 passed the House on
172		-	May 11, 2021, by the following vote: Yeas 132, Nays 11, two
173		-	present not voting.
174		-	______________________________
175		-	Chief Clerk of the House
176		-	Approved:
177		-	______________________________
178		-	Date
179		-	______________________________
180		-	Governor