I

107TH CONGRESS

1ST SESSION H. R. 1831

To provide certain relief for small businesses from liability under the Comprehensive Environmental Response, Compensation, and Liability Act

of 1980.

IN THE HOUSE OF REPRESENTATIVES

MAY 15, 2001

Mr. GILLMOR (for himself, Mr. PALLONE, Mr. DUNCAN, Mr. DEFAZIO, Mr.

SHIMKUS, Mr. DINGELL, Mr. YOUNG of Alaska, Mr. OBERSTAR, Mr.

TAUZIN, Mr. STUPAK, Mr. OTTER, Mr. PASCRELL, Mr. EHRLICH, Mr.

TOWNS, Mr. THUNE, Mr. BLUMENAUER, Mr. GREENWOOD, Mr. GORDON,

Mr. LOBIONDO, Mr. HOLDEN, Mr. LARGENT, Mr. DEUTSCH, Mr. FERGUSON, Mr. BARCIA, Mr. BILIRAKIS, Mr. SAWYER, Mr. PETRI, Mr.

SANDLIN, Mrs. BONO, Mr. JOHN, Mr. BOEHLERT, Mr. FILNER, Mr.

WALDEN, Mr. DOYLE, Mr. COOKSEY, Mr. MASCARA, Mrs. WILSON, Mrs.

CAPPS, Mr. BAKER, Mr. RAHALL, Mr. BASS, Mr. STRICKLAND, Mr.

JOHNSON of Illinois, Mr. BERRY, Mr. BLUNT, Mr. BROWN of Ohio, Mr.

GILCHREST, Mr. BARRETT of Wisconsin, Mr. BUYER, Mr. HORN, Mr.

EVANS, Mr. SIMMONS, Mr. KIND, Mr. EHLERS, Mr. SPRATT, Mr. SHERWOOD, Mr. LIPINSKI, Mr. BACHUS, Mr. SHOWS, Mr. SWEENEY, Mr.

GARY G. MILLER of California, Mr. REYNOLDS, Mr. CRAMER, and Mr.

MCHUGH) introduced the following bill; which was referred to the Committee on Energy and 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 certain relief for small businesses from liability

under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.
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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 Liabil9 ity Act of 1980 (42 U.S.C. 9607) is amended by adding

10 at the end the following new subsections:

11 ‘‘(o) DE MICROMIS EXEMPTION.—

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graph (2), a person shall not be liable, with respect

14 to response costs at a facility on the National Prior15 ities List, under this Act if liability is based solely

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

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

18 subsection, can demonstrate that—

19 ‘‘(A) the total amount of the material con20 taining hazardous substances that the person

21 arranged for disposal or treatment of, arranged

22 with a transporter for transport for disposal or

23 treatment of, or accepted for transport for dis24 posal or treatment, at the facility was less than

25 110 gallons of liquid materials or less than 200
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1 pounds of solid materials (or such greater or

2 lesser amounts as the Administrator may deter3 mine by regulation); and

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

5 or transport concerned occurred before April 1,

6 2001.

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

8 apply in a case in which—

9 ‘‘(A) the President determines that—

10 ‘‘(i) the materials containing haz11 ardous substances referred to in paragraph

12 (1) have contributed significantly or could

13 contribute significantly, either individually

14 or in the aggregate, to the cost of the re15 sponse action or natural resource restora16 tion with respect to the facility; or

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

18 with an information request or administra19 tive subpoena issued by the President

20 under this Act or has impeded or is imped21 ing, through action or inaction, the per22 formance of a response action or natural

23 resource restoration with respect to the fa24 cility; or
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1 ‘‘(B) a person has been convicted of a

2 criminal violation for the conduct to which the

3 exemption would apply, and that conviction has

4 not been vitiated on appeal or otherwise.

5 ‘‘(3) NO JUDICIAL REVIEW.—A determination

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

7 be subject to judicial review.

8 ‘‘(4) NONGOVERNMENTAL THIRD-PARTY CON9 TRIBUTION ACTIONS.—In the case of a contribution

10 action, with respect to response costs at a facility on

11 the National Priorities List, brought by a party,

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

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

14 party bringing the action to demonstrate that the

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

16 this subsection are not met.

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

18 ‘‘(1) IN GENERAL.—Except as provided in para19 graph (2) of this subsection, a person shall not be

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

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

22 subsection (a) for municipal solid waste disposed of

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

24 paragraph (5) of this subsection, can demonstrate

25 that the person is—
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1 ‘‘(A) an owner, operator, or lessee of resi2 dential property from which all of the person’s

3 municipal solid waste was generated with re4 spect to the facility;

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

6 subsidiary, or affiliate of the entity) that, dur7 ing its 3 taxable years preceding the date of

8 transmittal of written notification from the

9 President of its potential liability under this

10 section, employed on average not more than

11 100 full-time individuals, or the equivalent

12 thereof, and that is a small business concern

13 (within the meaning of the Small Business Act

14 (15 U.S.C. 631 et seq.)) from which was gen15 erated all of the municipal solid waste attrib16 utable to the entity with respect to the facility;

17 or

18 ‘‘(C) an organization described in section

19 501(c)(3) of the Internal Revenue Code of 1986

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

21 such Code that, during its taxable year pre22 ceding the date of transmittal of written notifi23 cation from the President of its potential liabil24 ity under this section, employed not more than

25 100 paid individuals at the location from which
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1 was generated all of the municipal solid waste

2 attributable to the organization with respect to

3 the facility.

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

5 has the meaning of that term provided in the defini6 tion of ‘small business concern’ in regulations pro7 mulgated by the Small Business Administration in

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

9 631 et seq.).

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

11 apply in a case in which the President determines

12 that—

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

14 in paragraph (1) has contributed significantly

15 or could contribute significantly, either individ16 ually or in the aggregate, to the cost of the re17 sponse action or natural resource restoration

18 with respect to the facility;

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

20 an information request or administrative sub21 poena issued by the President under this Act;

22 or

23 ‘‘(C) the person has impeded or is imped24 ing, through action or inaction, the performance
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1 of a response action or natural resource res2 toration with respect to the facility.

3 ‘‘(3) NO JUDICIAL REVIEW.—A determination

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

5 subject to judicial review.

6 ‘‘(4) DEFINITION OF MUNICIPAL SOLID

7 WASTE.—

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

9 subsection, the term ‘municipal solid waste’

10 means waste material—

11 ‘‘(i) generated by a household (includ12 ing a single or multifamily residence); and

13 ‘‘(ii) generated by a commercial, in14 dustrial, or institutional entity, to the ex15 tent that the waste material—

16 ‘‘(I) is essentially the same as

17 waste normally generated by a house18 hold;

19 ‘‘(II) is collected and disposed of

20 with other municipal solid waste as

21 part of normal municipal solid waste

22 collection services; and

23 ‘‘(III) contains a relative quan24 tity of hazardous substances no great25 er than the relative quantity of haz-
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1 ardous substances contained in waste

2 material generated by a typical single3 family household.

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

5 solid waste under subparagraph (A) include

6 food and yard waste, paper, clothing, appli7 ances, consumer product packaging, disposable

8 diapers, office supplies, cosmetics, glass and

9 metal food containers, elementary or secondary

10 school science laboratory waste, and household

11 hazardous waste.

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

13 solid waste’ does not include—

14 ‘‘(i) combustion ash generated by re15 source recovery facilities or municipal in16 cinerators; or

17 ‘‘(ii) waste material from manufac18 turing or processing operations (including

19 pollution control operations) that is not es20 sentially the same as waste normally gen21 erated by households.

22 ‘‘(5) BURDEN OF PROOF.—In the case of an ac23 tion, with respect to response costs at a facility on

24 the National Priorities List, brought under section

25 107 or 113 by—
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1 ‘‘(A) a party, other than a Federal, State,

2 or local government, with respect to municipal

3 solid waste disposed of on or after April 1,

4 2001; or

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

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

7 burden of proof shall be on the party bringing

8 the action to demonstrate that the conditions

9 described in paragraphs (1) and (4) for exemp10 tion for entities and organizations described in

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

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

13 contribution action may be brought by a party, other

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

15 this Act with respect to circumstances described in

16 paragraph (1)(A).

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

18 entity that commences, after the date of the enact19 ment of this subsection, a contribution action under

20 this Act shall be liable to the defendant for all rea21 sonable costs of defending the action, including all

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

23 the defendant is not liable for contribution based on

24 an exemption under this subsection or subsection

25 (o).’’.
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1 (b) EXPEDITED SETTLEMENT.—Section 122(g) of

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

3 the end the following new paragraphs:

4 ‘‘(7) REDUCTION IN SETTLEMENT AMOUNT

5 BASED ON LIMITED ABILITY TO PAY.—

6 ‘‘(A) IN GENERAL.—The condition for set7 tlement under this paragraph is that the poten8 tially responsible party is a person who dem9 onstrates to the President an inability or a lim10 ited ability to pay response costs.

11 ‘‘(B) CONSIDERATIONS.—In determining

12 whether or not a demonstration is made under

13 subparagraph (A) by a person, the President

14 shall take into consideration the ability of the

15 person to pay response costs and still maintain

16 its basic business operations, including consid17 eration of the overall financial condition of the

18 person and demonstrable constraints on the

19 ability of the person to raise revenues.

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

21 settlement under this paragraph shall promptly

22 provide the President with all relevant informa23 tion needed to determine the ability of the per24 son to pay response costs.
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1 ‘‘(D) ALTERNATIVE PAYMENT METH2 ODS.—If the President determines that a per3 son is unable to pay its total settlement amount

4 at the time of settlement, the President shall

5 consider such alternative payment methods as

6 may be necessary or appropriate.

7 ‘‘(8) ADDITIONAL CONDITIONS FOR EXPEDITED

8 SETTLEMENTS.—

9 ‘‘(A) WAIVER OF CLAIMS.—The President

10 shall require, as a condition for settlement

11 under this subsection, that a potentially respon12 sible party waive all of the claims (including a

13 claim for contribution under this Act) that the

14 party may have against other potentially re15 sponsible parties for response costs incurred

16 with respect to the facility, unless the President

17 determines that requiring a waiver would be un18 just.

19 ‘‘(B) FAILURE TO COMPLY.—The Presi20 dent may decline to offer a settlement to a po21 tentially responsible party under this subsection

22 if the President determines that the potentially

23 responsible party has failed to comply with any

24 request for access or information or an adminis25 trative subpoena issued by the President under
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1 this Act or has impeded or is impeding, through

2 action or inaction, the performance of a re3 sponse action with respect to the facility.

4 ‘‘(C) RESPONSIBILITY TO PROVIDE INFOR5 MATION AND ACCESS.—A potentially responsible

6 party that enters into a settlement under this

7 subsection shall not be relieved of the responsi8 bility to provide any information or access re9 quested in accordance with subsection (e)(3)(B)

10 or section 104(e).

11 ‘‘(9) BASIS OF DETERMINATION.—If the Presi12 dent determines that a potentially responsible party

13 is not eligible for settlement under this subsection,

14 the President shall provide the reasons for the deter15 mination in writing to the potentially responsible

16 party that requested a settlement under this sub17 section.

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

19 after receipt of sufficient information to make a de20 termination, the President shall notify any person

21 that the President determines is eligible under para22 graph (1) of the person’s eligibility for an expedited

23 settlement.
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1 ‘‘(11) NO JUDICIAL REVIEW.—A determination

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

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

4 ‘‘(12) NOTICE OF SETTLEMENT.—After a set5 tlement under this subsection becomes final with re6 spect to a facility, the President shall promptly no7 tify potentially responsible parties at the facility that

8 have not resolved their liability to the United States

9 of the settlement.’’.

10 SEC. 3. EFFECT ON CONCLUDED ACTIONS.

11 The amendments made by this Act shall not apply

12 to or in any way affect any settlement lodged in, or judg13 ment issued by, a United States District Court, or any

14 administrative settlement or order entered into or issued

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

16 enactment of this Act.

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