On November 29, 1999, President Clinton signed the "Superfund Recycling Equity Act" into law, exempting generators and transporters of "Recyclable Material" from liability under the federal Superfund law. The provision was contained in the omnibus spending bill of the 106th Congress, S.1528, introduced by Senators Lott, Daschel, Chafee, Lincoln, Warner and Baucus. Exempted materials include: scrap paper, scrap plastic, scrap glass, scrap textiles, scrap rubber (other than whole tires), scrap metal, or spent lead - acid, spent nickel - cadmium, and other spent batteries. Shipping containers from 30 liters to 3,000 liters are not exempt.
The law places the burden on the recycler to prove by a preponderance of the evidence that the transaction meets certain specific criteria. These criteria include requirements that, at the time of the transaction: (1) the recyclable met a commercial specification grade; (2) a market existed for the recyclable; (3) a substantial portion of the recyclable was made available for use as a feedstock for a new saleable product; (4) the recyclable could have been a replacement or substitute for a virgin raw material, or the product to be made from the recyclable could have been a replacement or substitute for a product made, in whole or in part, from a virgin raw material; and, (5) for transactions occurring more than 90 days after enactment of the law, the person exercised reasonable care to determine that the consuming facility was in compliance with substantive provisions of applicable laws and regulations, compliance orders or decrees. (Guidelines for demonstrating "reasonable care" are set out in the law.)
In addition, for different materials supplemental requirements apply. For instance, for transactions involving scrap metal, the recycler must also show that the recycler was in compliance with applicable law regarding the storage, transport, management or other activities associated with the recycling, and that the recycler did not melt the scrap metal (although "sweating" metal is allowed) prior to the recycling transaction. For transactions involving spent lead - acid batteries, the recycler must also show that it did not recover the valuable components of such batteries, and was in compliance with applicable law regarding the storage, transport, management or other activities associated with the recycling.
A recycler loses the exemption if, at the time of the transaction: (1) it had an objective reason to believe that the material would not be recycled, or that the recyclable material would be burned for fuel, or, for transactions occurring before 90 days after the law's enactment, that the facility was not in compliance with substantive law; (2) it had reason to believe that a hazardous substance had been added to the recyclable for purposes other than recycling; (3) the person failed to exercise reasonable care with respect to the management and handling of the recyclable; and (4) the recyclable contained PCB's in excess of 50 parts/billion.
Furthermore, the law states that the exemptions provided shall not affect any concluded judicial or administrative action or any pending judicial action initiated by the United States prior to enactment. Finally, the law awards attorneys and expert witness fees to a recycler who is brought into any action and establishes its defense under this law.
Because the law has specific affirmative burdens of proof for recyclers, it may take some time to see its effect and how the courts will interpret the evidentiary prerequisites. Also, it is likely that private parties and the government will seek judicial guidance on the law's effect on pending or concluded actions.