II

107TH CONGRESS

1ST SESSION S. 1064

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to provide certain relief from liability for small

businesses.

IN THE SENATE OF THE UNITED STATES

JUNE 19, 2001

Mr. BOND (for himself, Mr. REID, Mr. SMITH of New Hampshire, Mr.

KERRY, Mr. WARNER, Mr. CHAFEE, Mr. WYDEN, Mr. CLELAND, Mr.

ENSIGN, and Ms. LANDRIEU) introduced the following bill; which was

read twice and referred to the Committee on Environment and Public

Works

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to provide certain

relief from liability for small businesses.

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 Protection Act’’.

6 SEC. 2. SMALL BUSINESS LIABILITY RELIEF.

7 (a) EXEMPTIONS.—Section 107 of the Comprehen8 sive Environmental Response, Compensation, and Liabil-
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1 ity Act of 1980 (42 U.S.C. 9607) is amended by adding

2 at the end the following new subsections:

3 ‘‘(o) DE MICROMIS EXEMPTION.—

4 ‘‘(1) IN GENERAL.—Except as provided in para5 graph (2), a person shall not be liable, with respect

6 to response costs at a facility on the National Prior7 ities List, under this Act if liability is based solely

8 on paragraph (3) or (4) of subsection (a), and the

9 person, except as provided in paragraph (4) of this

10 subsection, can demonstrate that—

11 ‘‘(A) the total amount of the material con12 taining hazardous substances that the person

13 arranged for disposal or treatment of, arranged

14 with a transporter for transport for disposal or

15 treatment of, or accepted for transport for dis16 posal or treatment, at the facility was less than

17 110 gallons of liquid materials or less than 200

18 pounds of solid materials (or such greater or

19 lesser amounts as the Administrator may deter20 mine by regulation); and

21 ‘‘(B) all or part of the disposal, treatment,

22 or transport concerned occurred before April 1,

23 2001.

24 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not

25 apply in a case in which—
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1 ‘‘(A) the President determines that—

2 ‘‘(i) the materials containing haz3 ardous substances referred to in paragraph

4 (1) have contributed significantly or could

5 contribute significantly, either individually

6 or in the aggregate, to the cost of the re7 sponse action or natural resource restora8 tion with respect to the facility; or

9 ‘‘(ii) the person has failed to comply

10 with an information request or administra11 tive subpoena issued by the President

12 under this Act or has impeded or is imped13 ing, through action or inaction, the per14 formance of a response action or natural

15 resource restoration with respect to the fa16 cility; or

17 ‘‘(B) a person has been convicted of a

18 criminal violation for the conduct to which the

19 exemption would apply, and that conviction has

20 not been vitiated on appeal or otherwise.

21 ‘‘(3) NO JUDICIALREVIEW.—A determination

22 by the President under paragraph (2)(A) shall not

23 be subject to judicial review.

24 ‘‘(4) NONGOVERNMENTALTHIRD-PARTY CON25 TRIBUTION ACTIONS.—In the case of a contribution
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1 action, with respect to response costs at a facility on

2 the National Priorities List, brought by a party,

3 other than a Federal, State, or local government,

4 under this Act, the burden of proof shall be on the

5 party bringing the action to demonstrate that the

6 conditions described in paragraph (1)(A) and (B) of

7 this subsection are not met.

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

9 ‘‘(1) IN GENERAL.—Except as provided in para10 graph (2) of this subsection, a person shall not be

11 liable, with respect to response costs at a facility on

12 the National Priorities List, under paragraph (3) of

13 subsection (a) for municipal solid waste disposed of

14 at a facility if the person, except as provided in

15 paragraph (5) of this subsection, can demonstrate

16 that the person is—

17 ‘‘(A) an owner, operator, or lessee of resi18 dential property from which all of the person’s

19 municipal solid waste was generated with re20 spect to the facility;

21 ‘‘(B) a business entity (including a parent,

22 subsidiary, or affiliate of the entity) that, dur23 ing its 3 taxable years preceding the date of

24 transmittal of written notification from the

25 President of its potential liability under this
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1 section, employed on average not more than

2 100 full-time individuals, or the equivalent

3 thereof, and that is a small business concern

4 (within the meaning of the Small Business Act

5 (15 U.S.C. 631 et seq.)) from which was gen6 erated all of the municipal solid waste attrib7 utable to the entity with respect to the facility;

8 or

9 ‘‘(C) an organization described in section

10 501(c)(3) of the Internal Revenue Code of 1986

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

12 such Code that, during its taxable year pre13 ceding the date of transmittal of written notifi14 cation from the President of its potential liabil15 ity under this section, employed not more than

16 100 paid individuals at the location from which

17 was generated all of the municipal solid waste

18 attributable to the organization with respect to

19 the facility.

20 For purposes of this subsection, the term ‘affiliate’

21 has the meaning of that term provided in the defini22 tion of ‘small business concern’ in regulations pro23 mulgated by the Small Business Administration in

24 accordance with the Small Business Act (15 U.S.C.

25 631 et seq.).
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1 ‘‘(2) EXCEPTION.—Paragraph (1) shall not

2 apply in a case in which the President determines

3 that—

4 ‘‘(A) the municipal solid waste referred to

5 in paragraph (1) has contributed significantly

6 or could contribute significantly, either individ7 ually or in the aggregate, to the cost of the re8 sponse action or natural resource restoration

9 with respect to the facility;

10 ‘‘(B) the person has failed to comply with

11 an information request or administrative sub12 poena issued by the President under this Act;

13 or

14 ‘‘(C) the person has impeded or is imped15 ing, through action or inaction, the performance

16 of a response action or natural resource res17 toration with respect to the facility.

18 ‘‘(3) NO JUDICIALREVIEW.—A determination

19 by the President under paragraph (2) shall not be

20 subject to judicial review.

21 ‘‘(4) DEFINITION OF MUNICIPALSOLID

22 WASTE.—

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

24 subsection, the term ‘municipal solid waste’

25 means waste material—
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1 ‘‘(i) generated by a household (includ2 ing a single or multifamily residence); and

3 ‘‘(ii) generated by a commercial, in4 dustrial, or institutional entity, to the ex5 tent that the waste material—

6 ‘‘(I) is essentially the same as

7 waste normally generated by a house8 hold;

9 ‘‘(II) is collected and disposed of

10 with other municipal solid waste as

11 part of normal municipal solid waste

12 collection services; and

13 ‘‘(III) contains a relative quan14 tity of hazardous substances no great15 er than the relative quantity of haz16 ardous substances contained in waste

17 material generated by a typical single18 family household.

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

20 solid waste under subparagraph (A) include

21 food and yard waste, paper, clothing, appli22 ances, consumer product packaging, disposable

23 diapers, office supplies, cosmetics, glass and

24 metal food containers, elementary or secondary
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1 school science laboratory waste, and household

2 hazardous waste.

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

4 solid waste’ does not include—

5 ‘‘(i) combustion ash generated by re6 source recovery facilities or municipal in7 cinerators; or

8 ‘‘(ii) waste material from manufac9 turing or processing operations (including

10 pollution control operations) that is not es11 sentially the same as waste normally gen12 erated by households.

13 ‘‘(5) BURDEN OF PROOF.—In the case of an ac14 tion, with respect to response costs at a facility on

15 the National Priorities List, brought under section

16 107 or 113 by—

17 ‘‘(A) a party, other than a Federal, State,

18 or local government, with respect to municipal

19 solid waste disposed of on or after April 1,

20 2001; or

21 ‘‘(B) any party with respect to municipal

22 solid waste disposed of before April 1, 2001, the

23 burden of proof shall be on the party bringing

24 the action to demonstrate that the conditions

25 described in paragraphs (1) and (4) for exemp-
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1 tion for entities and organizations described in

2 paragraph (1)(B) and (C) are not met.

3 ‘‘(6) CERTAIN ACTIONS NOT PERMITTED.—No

4 contribution action may be brought by a party, other

5 than a Federal, State, or local government, under

6 this Act with respect to circumstances described in

7 paragraph (1)(A).

8 ‘‘(7) COSTS AND FEES.—A nongovernmental

9 entity that commences, after the date of the enact10 ment of this subsection, a contribution action under

11 this Act shall be liable to the defendant for all rea12 sonable costs of defending the action, including all

13 reasonable attorney’s fees and expert witness fees, if

14 the defendant is not liable for contribution based on

15 an exemption under this subsection or subsection

16 (o).’’.

17 (b) EXPEDITED SETTLEMENT.—Section 122(g) of

18 such Act (42 U.S.C. 9622(g)) is amended by adding at

19 the end the following new paragraphs:

20 ‘‘(7) REDUCTION IN SETTLEMENT AMOUNT

21 BASED ON LIMITED ABILITY TO PAY.—

22 ‘‘(A) IN GENERAL.—The condition for set23 tlement under this paragraph is that the poten24 tially responsible party is a person who dem-
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1 onstrates to the President an inability or a lim2 ited ability to pay response costs.

3 ‘‘(B) CONSIDERATIONS.—In determining

4 whether or not a demonstration is made under

5 subparagraph (A) by a person, the President

6 shall take into consideration the ability of the

7 person to pay response costs and still maintain

8 its basic business operations, including consid9 eration of the overall financial condition of the

10 person and demonstrable constraints on the

11 ability of the person to raise revenues.

12 ‘‘(C) INFORMATION.—A person requesting

13 settlement under this paragraph shall promptly

14 provide the President with all relevant informa15 tion needed to determine the ability of the per16 son to pay response costs.

17 ‘‘(D) ALTERNATIVE PAYMENT METH18 ODS.—If the President determines that a per19 son is unable to pay its total settlement amount

20 at the time of settlement, the President shall

21 consider such alternative payment methods as

22 may be necessary or appropriate.

23 ‘‘(8) ADDITIONALCONDITIONS FOR EXPEDITED

24 SETTLEMENTS.—
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1 ‘‘(A) WAIVER OF CLAIMS.—The President

2 shall require, as a condition for settlement

3 under this subsection, that a potentially respon4 sible party waive all of the claims (including a

5 claim for contribution under this Act) that the

6 party may have against other potentially re7 sponsible parties for response costs incurred

8 with respect to the facility, unless the President

9 determines that requiring a waiver would be un10 just.

11 ‘‘(B) FAILURE TO COMPLY.—The Presi12 dent may decline to offer a settlement to a po13 tentially responsible party under this subsection

14 if the President determines that the potentially

15 responsible party has failed to comply with any

16 request for access or information or an adminis17 trative subpoena issued by the President under

18 this Act or has impeded or is impeding, through

19 action or inaction, the performance of a re20 sponse action with respect to the facility.

21 ‘‘(C) RESPONSIBILITY TO PROVIDE INFOR22 MATION AND ACCESS.—A potentially responsible

23 party that enters into a settlement under this

24 subsection shall not be relieved of the responsi25 bility to provide any information or access re-
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1 quested in accordance with subsection (e)(3)(B)

2 or section 104(e).

3 ‘‘(9) BASIS OF DETERMINATION.—If the Presi4 dent determines that a potentially responsible party

5 is not eligible for settlement under this subsection,

6 the President shall provide the reasons for the deter7 mination in writing to the potentially responsible

8 party that requested a settlement under this sub9 section.

10 ‘‘(10) NOTIFICATION.—As soon as practicable

11 after receipt of sufficient information to make a de12 termination, the President shall notify any person

13 that the President determines is eligible under para14 graph (1) of the person’s eligibility for an expedited

15 settlement.

16 ‘‘(11) NO JUDICIALREVIEW.—A determination

17 by the President under paragraph (7), (8), (9), or

18 (10) shall not be subject to judicial review.

19 ‘‘(12) NOTICE OF SETTLEMENT.—After a set20 tlement under this subsection becomes final with re21 spect to a facility, the President shall promptly no22 tify potentially responsible parties at the facility that

23 have not resolved their liability to the United States

24 of the settlement.’’.
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1 SEC. 3. EFFECT ON CONCLUDED ACTIONS.

2 The amendments made by this Act shall not apply

3 to or in any way affect any settlement lodged in, or judg4 ment issued by, a United States District Court, or any

5 administrative settlement or order entered into or issued

6 by the United States or any State, before the date of the

7 enactment of this Act.

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