By: Zaffirini S.B. No. 1818
 
  (Landgraf)
 
   
 
 
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,
  transported, 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, such as bars, turnings, rods, sheets, or wire, or metal
  pieces that may be combined together with bolts or soldering, such
  as radiators, scrap automobiles, or railroad boxcars, 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;
                     (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,
  storage, or transport 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, reclamation, storage, or transport 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, reclamation, storage, or transport 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, reclamation, storage, or
  transport 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 handling, processing, reclamation, storage, transport, and
  management 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, reclamation, storage, or transport of scrap
  metal or other management activities associated with scrap metal.
         (h)  The commission may adopt rules as necessary to
  administer this section.
         (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 responsibility of a person for solid
  waste 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 Texas Commission on Environmental Quality
  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.