USE OF RECYCLED PAVING MATERIAL.

SEC. 1038. USE OF RECYCLED PAVING MATERIAL. (a) Asphalt Pavement Containing Recycled Rubber Demonstration Program.— Notwithstanding any other provision of 105 STAT. 1988title 23, United States Code, or regulation or policy of the Department of Transportation, the Secretary (or a State acting as the Department’s agent) may not disapprove a highway project under chapter 1 of title 23, United States Code, on the ground that the project includes the use of asphalt pavement containing recycled rubber. Under this subsection, a patented application process for recycled rubber shall be eligible for approval under the same conditions that an unpatented process is eligible for approval. (b) Studies.— (1) In general.— The Secretary and the Administrator of the Environmental Protection Agency shall coordinate and conduct, in cooperation with the States, a study to determine— (A) the threat to human health and the environment associated with the production and use of asphalt pavement containing recycled rubber; (B) the degree to which asphalt pavement containing recycled rubber can be recycled; and (C) the performance of the asphalt pavement containing recycled rubber under various climate and use conditions. (2) Division of responsibilities.— The Administrator shall conduct the part of the study relating to paragraph (1)(A) and the Secretary shall conduct the part of the study relating to paragraph (1)(C). The Administrator and the Secretary shall jointly conduct the study relating to paragraph (1)(B). (3) Additional study.— The Secretary and the Administrator, in cooperation with the States, shall jointly conduct a study to determine the economic savings, technical performance qualities, threats to human health and the environment, and environmental benefits of using recycled materials in highway devices and appurtenances and highway projects, including asphalt containing over 80 percent reclaimed asphalt, asphalt containing recycled glass, and asphalt containing recycled plastic. (4) Additional elements.— In conducting the study under paragraph (3), the Secretary and the Administrator shall examine utilization of various technologies by States and shall examine the current practices of all States relating to the reuse and disposal of materials used in federally assisted highway projects. (5) Report.— Not later than 18 months after the date of the enactment of this Act, the Secretary and the Administrator shall transmit to Congress a report on the results of the studies conducted under this subsection, including a detailed analysis of the economic savings and technical performance qualities of using such recycled materials in federally assisted highway projects and the environmental benefits of using such recycled materials in such highway projects in terms of reducing air emissions, conserving natural resources, and reducing disposal of the materials in landfills. (c) DOT Guidance.— (1) Information gathering and distribution.— The Secretary shall gather information and recommendations concerning the use of asphalt containing recycled rubber in highway projects from those States that have extensively evaluated and experimented with the use of such asphalt and implemented such projects and shall make available such information and 105 STAT. 1989recommendations on the use of such asphalt to those States which indicate an interest in the use of such asphalt. (2) Encouragement of use.— The Secretary should encourage the use of recycled materials determined to be appropriate by the studies pursuant to subsection (b) in federally assisted highway projects. Procuring agencies shall comply with all applicable guidelines or regulations issued by the Administrator of the Environmental Protection Agency. (d) Use of Asphalt Pavement Containing Recycled Rubber.— (1) State certification.— Beginning on January 1, 1995, and annually thereafter, each State shall certify to the Secretary that such State has satisfied the minimum utilization requirement for asphalt pavement containing recycled rubber established by this section. The minimum utilization requirement for asphalt pavement containing recycled rubber as a percentage of the total tons of asphalt laid in such State and financed in whole or part by any assistance pursuant to title 23, United States Code, shall be— (A) 5 percent for the year 1994; (B) 10 percent for the year 1995; (C) 15 percent for the year 1996; and (D) 20 percent for the year 1997 and each year thereafter. (2) Other materials.— Any recycled material or materials determined to be appropriate by the studies under subsection (b) may be substituted for recycled rubber under the minimum utilization requirement of paragraph (1) up to 5 percent. (3) Increase.— The Secretary may increase the minimum utilization requirement of paragraph (1) for asphalt pavement containing recycled rubber to be used in federally assisted highway projects to the extent it is technologically and economically feasible to do so and if an increase is appropriate to assure markets for the reuse and recycling of scrap tires. The minimum utilization requirement for asphalt pavement containing recycled rubber may not be met by any use or technique found to be unsuitable for use in highway projects by the studies under subsection (b). (4) Penalty.— The Secretary shall withhold from any State that fails to make a certification under paragraph (1) for any fiscal year, a percentage of the apportionments under section 104 (other than subsection (b)(5)(A)) of title 23, United States Code, that would otherwise be apportioned to such State for such fiscal year under such section equal to the percentage utilization requirement established by paragraph (1) for such fiscal year. (5) Secretarial waiver.— The Secretary may set aside the provisions of this subsection for any 3-year period on a determination, made in concurrence with the Administrator of the Environmental Protection Agency with respect to subparagraphs (A) and (B) of this paragraph, that there is reliable evidence indicating— (A) that manufacture, application, or use of asphalt pavement containing recycled rubber substantially increases the threat to human health or the environment as compared to the threats associated with conventional pavement; (B) that asphalt pavement containing recycled rubber cannot be recycled to substantially the same degree as conventional pavement; or 105 STAT. 1990 (C) that asphalt pavement containing recycled rubber does not perform adequately as a material for the construction or surfacing of highways and roads. The Secretary shall consider the results of the study under subsection (b)(1) in determining whether a 3-year set-aside is appropriate. (6) Renewal of waiver.— Any determination made to set aside the requirements of this section may be renewed for an additional 3-year period by the Secretary, with the concurrence of the Administrator with respect to the determinations made under paragraphs (5)(A) and (5)(B). Any determination made with respect to paragraph (5)(C) may be made for specific States or regions considering climate, geography, and other factors that may be unique to the State or region and that would prevent the adequate performance of asphalt pavement containing recycled rubber. (7) Individual state reduction.— The Secretary shall establish a minimum utilization requirement for asphalt pavement containing recycled rubber less than the minimum utilization requirement otherwise required by paragraph (1) in a particular State, upon the request of such State and if the Secretary, with the concurrence of the Administrator of the Environmental Protection Agency, determines that there is not a sufficient quantity of scrap tires available in the State prior to disposal to meet the minimum utilization requirement established under paragraph (1) as the result of recycling and processing uses (in that State or another State), including retreading or energy recovery. (e) Definitions.— For purpose of this section— (1) the term “asphalt pavement containing recycled rubber” means any hot mix or spray applied binder in asphalt paving mixture that contains rubber from whole scrap tires which is used for asphalt pavement base, surface course or interlayer, or other road and highway related uses and— (A) is a mixture of not less than 20 pounds of recycled rubber per ton of hot mix or 300 pounds of recycled rubber per ton of spray applied binder; or (B) is any mixture of asphalt pavement and recycled rubber that is certified by a State and is approved by the Secretary, provided that the total amount of recycled rubber from whole scrap tires utilized in any year in such State shall be not less than the amount that would be utilized if all asphalt pavement containing recycled rubber laid in such State met the specifications of subparagraph (A) and subsection (d)(1); and (2) the term “recycled rubber” is any crumb rubber derived from processing whole scrap tires or shredded tire material taken from automobiles, trucks, or other equipment owned and operated in the United States.