I

106TH CONGRESS

2D SESSION H. R. 5175

To provide relief to small businesses from liability under the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 14, 2000

Mr. OXLEY (for himself, Mr. BOEHLERT, Mr. HOLDEN, Mr. CRAMER, Mr.

BLILEY, Mr. STENHOLM, Mr. SHIMKUS, Mr. LIPINSKI, Mr. GREENWOOD,

Mr. CONDIT, Mr. SHERWOOD, Mr. BARCIA, and Mr. UPTON) introduced

the following bill; which was referred to the Committee on Commerce,

and in addition to the Committee on Transportation and Infrastructure,

for a period to be subsequently determined by the Speaker, in each case

for consideration of such provisions as fall within the jurisdiction of the

committee concerned

A BILL

To provide relief to small businesses from liability under

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Small Business Liabil5 ity Relief Act’’.
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1 SEC. 2. SMALL BUSINESS LIABILITY RELIEF.

2 (a) LIABILITY EXEMPTIONS.—Section 107 of the

3 Comprehensive Environmental Response, Compensation,

4 and Liability Act of 1980 (42 U.S.C. 9607) is amended

5 by adding at the end the following:

6 ‘‘(o) SMALL BUSINESS DE MICROMIS EXEMPTION.—

7 ‘‘(1) IN GENERAL.—Except as provided in para8 graphs (2) and (3), a business entity that, during its

9 3 taxable years preceding the date on which the

10 business entity first receives or received written noti11 fication from the President of its potential liability

12 under this section, (A) employed on average not

13 more than 100 full-time individuals (notwithstanding

14 fluctuations resulting from seasonal employment) or

15 the equivalent thereof, and (B) had, on average, an16 nual revenues of $3,000,000 or less, as reported to

17 the Internal Revenue Service, shall be liable under

18 paragraph (3) or (4) of subsection (a) to the United

19 States or any other person (including liability for

20 contribution) for any response costs incurred with

21 respect to a facility only if the total of material con22 taining a hazardous substance that the business en23 tity arranged for disposal or treatment of, arranged

24 with a transporter for transport for disposal or

25 treatment of, or accepted for transport for disposal

26 or treatment, at the facility, was greater than 110
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1 gallons of liquid material or greater than 200

2 pounds of solid material.

3 ‘‘(2) EXCEPTION.—Paragraph (1) shall not

4 apply if the President determines that—

5 ‘‘(A) the material containing a hazardous

6 substance referred to in paragraph (1) contrib7 uted or could contribute significantly, individ8 ually or in the aggregate, to the cost of the re9 sponse action with respect to the facility; or

10 ‘‘(B) the business entity has failed to com11 ply with an administrative subpoena or any rea12 sonable request for information issued by the

13 President under this Act, or has impeded or is

14 impeding the performance of a response action

15 with respect to the facility.

16 ‘‘(3) TIME PERIOD COVERED.—Paragraph (1)

17 shall only apply to material that a business entity

18 arranged for disposal or treatment of, arranged with

19 a transporter for transport for disposal or treatment

20 of, or accepted for transport for disposal or treat21 ment, at a facility before the date of the enactment

22 of the Small Business Liability Relief Act.

23 ‘‘(p) MUNICIPAL SOLID WASTE EXEMPTION.—

24 ‘‘(1) IN GENERAL.—Except as provided in para25 graph (2), a person may be liable for response costs
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1 under paragraph (3) or (4) of subsection (a) for mu2 nicipal solid waste at a facility only if the person is

3 not—

4 ‘‘(A) an owner, operator, or lessee of resi5 dential property from which all of the person’s

6 municipal solid waste was generated with re7 spect to the facility;

8 ‘‘(B) a business entity that—

9 ‘‘(i) during its 3 taxable years pre10 ceding the date on which the business enti11 ty first receives or received written notifi12 cation from the President of its potential

13 liability under this section, employed on av14 erage not more than 100 full-time individ15 uals (notwithstanding significant fluctua16 tions resulting from seasonal employment),

17 or the equivalent thereof; and

18 ‘‘(ii) generated all of its municipal

19 solid waste with respect to the facility; or

20 ‘‘(C) an organization described in section

21 501(c)(3) of the Internal Revenue Code of 1986

22 and exempt from tax under section 501(a) of

23 such Code that, during its taxable year pre24 ceding the date on which the organization first

25 receives or received written notification from
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1 the President of its potential liability under this

2 section, employed not more than 100 paid indi3 viduals at the location from which was gen4 erated all of the municipal solid waste attrib5 utable to the organization with respect to the

6 facility.

7 ‘‘(2) EXCEPTION.—Notwithstanding paragraph

8 (1), a person may be liable under this section if the

9 President determines that the person has failed to

10 substantially comply with an administrative sub11 poena or any reasonable request for information

12 issued by the President under this Act, or has im13 peded or is impeding the performance of a response

14 action with respect to the facility.

15 ‘‘(3) DEFINITION OF MUNICIPAL SOLID

16 WASTE.—

17 ‘‘(A) IN GENERAL.—For purposes of this

18 subsection, the term ‘municipal solid waste’

19 means waste material—

20 ‘‘(i) generated by a household (includ21 ing a single or multifamily residence, hotel,

22 or motel); and

23 ‘‘(ii) generated by a commercial, insti24 tutional, or industrial source, to the extent

25 that the waste material—
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1 ‘‘(I) is essentially the same as

2 waste normally generated by a house3 hold; or

4 ‘‘(II) is collected and disposed of

5 with other municipal solid waste as

6 part of normal municipal solid waste

7 collection services and, with respect to

8 each source from which the waste ma9 terial is collected, qualifies for a small

10 business de micromis exemption under

11 subsection (o).

12 ‘‘(B) EXAMPLES.—Examples of municipal

13 solid waste under subparagraph (A) include

14 food and yard waste, paper, clothing, appli15 ances, consumer product packaging, disposable

16 diapers, office supplies, cosmetics, glass and

17 metal food containers, elementary or secondary

18 school science laboratory waste, and household

19 hazardous waste.

20 ‘‘(C) EXCLUSIONS.—The term ‘municipal

21 solid waste’ does not include—

22 ‘‘(i) combustion ash generated by re23 source recovery facilities or municipal in24 cinerators; or
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1 ‘‘(ii) waste material from manufac2 turing or processing operations (including

3 pollution control operations) that is not es4 sentially the same as waste normally gen5 erated by households.

6 ‘‘(4) COSTS AND FEES.—A person that com7 mences a contribution action under section 113 shall

8 be liable to the defendant for all reasonable costs of

9 defending the action, including all reasonable attor10 ney’s fees and expert witness fees, if the defendant

11 is not liable for contribution based on an exemption

12 under this subsection or subsection (o).’’.

13 (b) EXPEDITED SETTLEMENT FOR DE MINIMIS CON14 TRIBUTIONS AND LIMITED ABILITY TO PAY.—

15 (1) PARTIES ELIGIBLE.—Section 122(g) of

16 such Act (42 U.S.C. 9622(g)) is amended—

17 (A) in paragraph (1) by redesignating sub18 paragraph (B) as subparagraph (E);

19 (B) by striking ‘‘(g)’’ and all that follows

20 through the period at the end of paragraph

21 (1)(A) and inserting the following:

22 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—

23 ‘‘(1) PARTIES ELIGIBLE.—

24 ‘‘(A) IN GENERAL.—The President shall,

25 as expeditiously as practicable, notify of eligi-
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1 bility for a settlement, and offer to reach a final

2 administrative or judicial settlement with, each

3 potentially responsible party that, in the judg4 ment of the President, meets 1 or more of the

5 conditions set forth in subparagraphs (B), (C),

6 and (E).

7 ‘‘(B) DE MINIMIS CONTRIBUTION.—The

8 condition for settlement under this subpara9 graph is that the liability of the potentially re10 sponsible party is for response costs based on

11 paragraph (3) or (4) of subsection (a) of section

12 107 and the potentially responsible party’s con13 tribution of hazardous substances at a facility is

14 de minimis. For the purposes of this subpara15 graph, a potentially responsible party’s con16 tribution shall be considered to be de minimis

17 only if the President determines that each of

18 the following criteria are met:

19 ‘‘(i) The quantity of material con20 taining a hazardous substance contributed

21 by the potentially responsible party to the

22 facility is minimal relative to the total

23 quantity of material containing hazardous

24 substances at the facility. The quantity of

25 a potentially responsible party’s contribu-
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1 tion shall be presumed to be minimal if the

2 quantity is 1 percent or less of the total

3 quantity of material containing hazardous

4 substances at the facility, unless the Ad5 ministrator establishes a different thresh6 old based on site-specific factors.

7 ‘‘(ii) The material containing a haz8 ardous substance contributed by the poten9 tially responsible party does not present

10 toxic or other hazardous effects that are

11 significantly greater than the toxic or other

12 hazardous effects of other material con13 taining hazardous substances at the facil14 ity.

15 ‘‘(C) REDUCTION IN SETTLEMENT

16 AMOUNT BASED ON LIMITED ABILITY TO PAY.—

17 ‘‘(i) IN GENERAL.—The condition for

18 settlement under this subparagraph is that

19 the potentially responsible party is a nat20 ural person or a small business and dem21 onstrates to the President an inability or a

22 limited ability to pay response costs.

23 ‘‘(ii) CONSIDERATIONS.—In deter24 mining whether or not a demonstration is

25 made under clause (i) by a small business,
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1 the President shall take into consideration

2 the ability of the small business to pay re3 sponse costs and still maintain its basic

4 business operations, including consider5 ation of the overall financial condition of

6 the small business and demonstrable con7 straints on the ability of the small business

8 to raise revenues.

9 ‘‘(iii) INFORMATION.—A small busi10 ness requesting settlement under this sub11 paragraph shall promptly provide the

12 President with all relevant information

13 needed to determine the ability of the

14 small business to pay response costs.

15 ‘‘(iv) ALTERNATIVE PAYMENT METH16 ODS.—If the President determines that a

17 small business is unable to pay its total

18 settlement amount at the time of settle19 ment, the President shall consider such al20 ternative payment methods as may be nec21 essary or appropriate.

22 ‘‘(D) ADDITIONAL CONDITIONS FOR EXPE23 DITED SETTLEMENTS.—

24 ‘‘(i) WAIVER OF CLAIMS.—The Presi25 dent shall require, as a condition for settle-
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1 ment under this paragraph, that a poten2 tially responsible party waive all of the

3 claims (including a claim for contribution

4 under section 113) that the party may

5 have against other potentially responsible

6 parties for response costs incurred with re7 spect to the facility, unless the President

8 determines that requiring a waiver would

9 be unjust.

10 ‘‘(ii) FAILURE TO COMPLY.—The

11 President may decline to offer a settlement

12 to a potentially responsible party under

13 this paragraph if the President determines

14 that the potentially responsible party has

15 failed to comply with any request for ac16 cess or information or an administrative

17 subpoena issued by the President under

18 this Act or has impeded or is impeding the

19 performance of a response action with re20 spect to the facility.

21 ‘‘(iii) RESPONSIBILITY TO PROVIDE

22 INFORMATION AND ACCESS.—A potentially

23 responsible party that enters into a settle24 ment under this paragraph shall not be re25 lieved of the responsibility to provide any
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1 information or access requested in accord2 ance with subsection (e)(3)(B) or section

3 104(e).’’;

4 (C) in subparagraph (E) of paragraph (1)

5 (as redesignated by subparagraph (A))—

6 (i) by redesignating clauses (i)

7 through (iii) as subclauses (I) through

8 (III), respectively, and by moving such

9 subclauses and the matter following sub10 clause (III) (as so redesignated) 2 ems to

11 the right;

12 (ii) by striking ‘‘(E) The potentially

13 responsible party’’ and inserting the fol14 lowing:

15 ‘‘(E) OWNERS OF REAL PROPERTY.—

16 ‘‘(i) IN GENERAL.—The condition for

17 settlement this subparagraph is that the

18 potentially responsible party’’; and

19 (iii) by striking ‘‘This subparagraph

20 (B)’’ and inserting the following:

21 ‘‘(ii) APPLICABILITY.—Clause (i)’’;

22 and

23 (D) by adding at the end the following:

24 ‘‘(F) BASIS OF DETERMINATION.—If the

25 President determines that a potentially respon-
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1 sible party is not eligible for settlement under

2 this paragraph, the President shall provide the

3 reasons for the determination in writing to any

4 potentially responsible party that requests a

5 settlement under this paragraph.

6 ‘‘(G) NO JUDICIAL REVIEW.—A determina7 tion by the President under this paragraph

8 shall not be subject to judicial review.

9 ‘‘(H) DEFINITION OF SMALL BUSINESS.—

10 In this paragraph, the term ‘small business’

11 means a business entity that, during its 3 tax12 able years preceding the date on which the busi13 ness entity first receives or received written no14 tification from the President of its potential li15 ability under section 107, employed on average

16 not more than 100 full-time individuals (not17 withstanding fluctuations resulting from sea18 sonal employment) or the equivalent thereof.’’.

19 (2) SETTLEMENT OFFERS.—Such section

20 122(g) is further amended—

21 (A) by redesignating paragraph (6) as

22 paragraph (9); and

23 (B) by inserting after paragraph (5) the

24 following:

25 ‘‘(6) SETTLEMENT OFFERS.—
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1 ‘‘(A) NOTIFICATION AND OFFER.—As soon

2 as practicable after receipt of sufficient infor3 mation to make a determination, the President

4 shall—

5 ‘‘(i) notify any person that the Presi6 dent determines is eligible under para7 graph (1) of the person’s eligibility for an

8 expedited settlement; and

9 ‘‘(ii) submit a written settlement offer

10 to such person.

11 ‘‘(B) INFORMATION.—At the time at which

12 the President submits an offer under this sub13 section, the President shall make available, at

14 the request of the recipient of the offer, to the

15 recipient any information available under sec16 tion 552 of title 5, United States Code, on

17 which the President bases the settlement offer,

18 and if the settlement offer is based in whole or

19 in part on information not available under that

20 section, so inform the recipient.

21 ‘‘(7) LITIGATION MORATORIUM.—

22 ‘‘(A) IN GENERAL.—No person that has

23 received notification from the President under

24 paragraph (6) that the person is eligible for an

25 expedited settlement with respect to a facility
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1 under paragraph (1) shall be named as a de2 fendant in any action under this Act for recov3 ery of response costs (including an action for

4 contribution) with respect to the facility during

5 the period—

6 ‘‘(i) beginning on the date on which

7 the person receives from the President

8 written notice of the person’s potential li9 ability and notice that the person is a

10 party that may qualify for an expedited

11 settlement with respect to the facility; and

12 ‘‘(ii) ending on the earlier of—

13 ‘‘(I) the date that is 90 days

14 after the date on which the President

15 tenders a written settlement offer to

16 the person with respect to the facility;

17 or

18 ‘‘(II) the date that is 1 year after

19 receipt of notice from the President

20 that the person may qualify for an ex21 pedited settlement with respect to the

22 facility.

23 ‘‘(B) SUSPENSION OF PERIOD OF LIMITA24 TION.—The period of limitation under section

25 113(g) applicable to a claim against a person
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1 described in subparagraph (A) for response

2 costs, natural resource damages, or contribution

3 shall be suspended during the period described

4 in subparagraph (A).

5 ‘‘(8) NOTICE OF SETTLEMENT.—After a settle6 ment under this subsection becomes final with re7 spect to a facility, the President shall promptly no8 tify potentially responsible parties at the facility that

9 have not resolved their liability to the United States

10 of the settlement.’’.

Æ