IB

Union Calendar No. 39

107TH CONGRESS

1ST SESSION H. R. 1831

[Report No. 107–70, Parts I and II]

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

MAY 21, 2001

Additional sponsors: Mr. OXLEY, Mr. GANSKE, Ms. MCCARTHY of Missouri,

Mr. BRADY of Texas, Mr. PICKERING, Mr. RADANOVICH, Mr. COSTELLO,

Mr. BORSKI, Mr. BAIRD, Mr. GREEN of Texas, Mr. HALL of Texas, Mr.

BURR of North Carolina, Mr. UPTON, Mr. LUTHER, Mr. STEARNS, Mr.

TURNER, Mrs. ROUKEMA, and Mr. CONDIT
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MAY 21, 2001

Reported from the Committee on Energy and Commerce

MAY 21, 2001

Reported from the Committee on Transportation and Infrastructure; referred

to the Committee of the Whole House on the State of the Union and ordered to be printed

A BILL

To provide certain relief for 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 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
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1 person, except as provided in paragraph (4) of this

2 subsection, can demonstrate that—

3 ‘‘(A) the total amount of the material con4 taining hazardous substances that the person

5 arranged for disposal or treatment of, arranged

6 with a transporter for transport for disposal or

7 treatment of, or accepted for transport for dis8 posal or treatment, at the facility was less than

9 110 gallons of liquid materials or less than 200

10 pounds of solid materials (or such greater or

11 lesser amounts as the Administrator may deter12 mine by regulation); and

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

14 or transport concerned occurred before April 1,

15 2001.

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

17 apply in a case in which—

18 ‘‘(A) the President determines that—

19 ‘‘(i) the materials containing haz20 ardous substances referred to in paragraph

21 (1) have contributed significantly or could

22 contribute significantly, either individually

23 or in the aggregate, to the cost of the re24 sponse action or natural resource restora25 tion with respect to the facility; or
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1 ‘‘(ii) the person has failed to comply

2 with an information request or administra3 tive subpoena issued by the President

4 under this Act or has impeded or is imped5 ing, through action or inaction, the per6 formance of a response action or natural

7 resource restoration with respect to the fa8 cility; or

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

10 criminal violation for the conduct to which the

11 exemption would apply, and that conviction has

12 not been vitiated on appeal or otherwise.

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

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

15 be subject to judicial review.

16 ‘‘(4) NONGOVERNMENTAL THIRD-PARTY CON17 TRIBUTION ACTIONS.—In the case of a contribution

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

19 the National Priorities List, brought by a party,

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

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

22 party bringing the action to demonstrate that the

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

24 this subsection are not met.

25 ‘‘(p) MUNICIPAL SOLID WASTE EXEMPTION.—
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1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (2) of this subsection, a person shall not be

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

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

5 subsection (a) for municipal solid waste disposed of

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

7 paragraph (5) of this subsection, can demonstrate

8 that the person is—

9 ‘‘(A) an owner, operator, or lessee of resi10 dential property from which all of the person’s

11 municipal solid waste was generated with re12 spect to the facility;

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

14 subsidiary, or affiliate of the entity) that, dur15 ing its 3 taxable years preceding the date of

16 transmittal of written notification from the

17 President of its potential liability under this

18 section, employed on average not more than

19 100 full-time individuals, or the equivalent

20 thereof, and that is a small business concern

21 (within the meaning of the Small Business Act

22 (15 U.S.C. 631 et seq.)) from which was gen23 erated all of the municipal solid waste attrib24 utable to the entity with respect to the facility;

25 or
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1 ‘‘(C) an organization described in section

2 501(c)(3) of the Internal Revenue Code of 1986

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

4 such Code that, during its taxable year pre5 ceding the date of transmittal of written notifi6 cation from the President of its potential liabil7 ity under this section, employed not more than

8 100 paid individuals at the location from which

9 was generated all of the municipal solid waste

10 attributable to the organization with respect to

11 the facility.

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

13 has the meaning of that term provided in the defini14 tion of ‘small business concern’ in regulations pro15 mulgated by the Small Business Administration in

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

17 631 et seq.).

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

19 apply in a case in which the President determines

20 that—

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

22 in paragraph (1) has contributed significantly

23 or could contribute significantly, either individ24 ually or in the aggregate, to the cost of the re-
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1 sponse action or natural resource restoration

2 with respect to the facility;

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

4 an information request or administrative sub5 poena issued by the President under this Act;

6 or

7 ‘‘(C) the person has impeded or is imped8 ing, through action or inaction, the performance

9 of a response action or natural resource res10 toration with respect to the facility.

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

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

13 subject to judicial review.

14 ‘‘(4) DEFINITION OF MUNICIPAL SOLID

15 WASTE.—

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

17 subsection, the term ‘municipal solid waste’

18 means waste material—

19 ‘‘(i) generated by a household (includ20 ing a single or multifamily residence); and

21 ‘‘(ii) generated by a commercial, in22 dustrial, or institutional entity, to the ex23 tent that the waste material—
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1 ‘‘(I) is essentially the same as

2 waste normally generated by a house3 hold;

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

8 ‘‘(III) contains a relative quan9 tity of hazardous substances no great10 er than the relative quantity of haz11 ardous substances contained in waste

12 material generated by a typical single13 family household.

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

15 solid waste under subparagraph (A) include

16 food and yard waste, paper, clothing, appli17 ances, consumer product packaging, disposable

18 diapers, office supplies, cosmetics, glass and

19 metal food containers, elementary or secondary

20 school science laboratory waste, and household

21 hazardous waste.

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

23 solid waste’ does not include—
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1 ‘‘(i) combustion ash generated by re2 source recovery facilities or municipal in3 cinerators; or

4 ‘‘(ii) waste material from manufac5 turing or processing operations (including

6 pollution control operations) that is not es7 sentially the same as waste normally gen8 erated by households.

9 ‘‘(5) BURDEN OF PROOF.—In the case of an ac10 tion, with respect to response costs at a facility on

11 the National Priorities List, brought under section

12 107 or 113 by—

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

14 or local government, with respect to municipal

15 solid waste disposed of on or after April 1,

16 2001; or

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

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

19 burden of proof shall be on the party bringing

20 the action to demonstrate that the conditions

21 described in paragraphs (1) and (4) for exemp22 tion for entities and organizations described in

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

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

25 contribution action may be brought by a party, other
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1 than a Federal, State, or local government, under

2 this Act with respect to circumstances described in

3 paragraph (1)(A).

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

5 entity that commences, after the date of the enact6 ment of this subsection, a contribution action under

7 this Act shall be liable to the defendant for all rea8 sonable costs of defending the action, including all

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

10 the defendant is not liable for contribution based on

11 an exemption under this subsection or subsection

12 (o).’’.

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

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

15 the end the following new paragraphs:

16 ‘‘(7) REDUCTION IN SETTLEMENT AMOUNT

17 BASED ON LIMITED ABILITY TO PAY.—

18 ‘‘(A) IN GENERAL.—The condition for set19 tlement under this paragraph is that the poten20 tially responsible party is a person who dem21 onstrates to the President an inability or a lim22 ited ability to pay response costs.

23 ‘‘(B) CONSIDERATIONS.—In determining

24 whether or not a demonstration is made under

25 subparagraph (A) by a person, the President
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1 shall take into consideration the ability of the

2 person to pay response costs and still maintain

3 its basic business operations, including consid4 eration of the overall financial condition of the

5 person and demonstrable constraints on the

6 ability of the person to raise revenues.

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

8 settlement under this paragraph shall promptly

9 provide the President with all relevant informa10 tion needed to determine the ability of the per11 son to pay response costs.

12 ‘‘(D) ALTERNATIVE PAYMENT METH13 ODS.—If the President determines that a per14 son is unable to pay its total settlement amount

15 at the time of settlement, the President shall

16 consider such alternative payment methods as

17 may be necessary or appropriate.

18 ‘‘(8) ADDITIONAL CONDITIONS FOR EXPEDITED

19 SETTLEMENTS.—

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

21 shall require, as a condition for settlement

22 under this subsection, that a potentially respon23 sible party waive all of the claims (including a

24 claim for contribution under this Act) that the

25 party may have against other potentially re-
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1 sponsible parties for response costs incurred

2 with respect to the facility, unless the President

3 determines that requiring a waiver would be un4 just.

5 ‘‘(B) FAILURE TO COMPLY.—The Presi6 dent may decline to offer a settlement to a po7 tentially responsible party under this subsection

8 if the President determines that the potentially

9 responsible party has failed to comply with any

10 request for access or information or an adminis11 trative subpoena issued by the President under

12 this Act or has impeded or is impeding, through

13 action or inaction, the performance of a re14 sponse action with respect to the facility.

15 ‘‘(C) RESPONSIBILITY TO PROVIDE INFOR16 MATION AND ACCESS.—A potentially responsible

17 party that enters into a settlement under this

18 subsection shall not be relieved of the responsi19 bility to provide any information or access re20 quested in accordance with subsection (e)(3)(B)

21 or section 104(e).

22 ‘‘(9) BASIS OF DETERMINATION.—If the Presi23 dent determines that a potentially responsible party

24 is not eligible for settlement under this subsection,

25 the President shall provide the reasons for the deter-
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1 mination in writing to the potentially responsible

2 party that requested a settlement under this sub3 section.

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

5 after receipt of sufficient information to make a de6 termination, the President shall notify any person

7 that the President determines is eligible under para8 graph (1) of the person’s eligibility for an expedited

9 settlement.

10 ‘‘(11) NO JUDICIAL REVIEW.—A determination

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

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

13 ‘‘(12) NOTICE OF SETTLEMENT.—After a set14 tlement under this subsection becomes final with re15 spect to a facility, the President shall promptly no16 tify potentially responsible parties at the facility that

17 have not resolved their liability to the United States

18 of the settlement.’’.

19 SEC. 3. EFFECT ON CONCLUDED ACTIONS.

20 The amendments made by this Act shall not apply

21 to or in any way affect any settlement lodged in, or judg22 ment issued by, a United States District Court, or any

23 administrative settlement or order entered into or issued

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

25 enactment of this Act.
Union Calendar No. 39

107TH CONGRESS

1ST SESSION H. R. 1831

[Report No. 107–70, Parts I and II]

A BILL

To provide certain relief for small businesses from

liability under the Comprehensive EnvironmentalResponse, Compensation, and Liability Act of1980.

MAY 21, 2001

Reported from the Committee on Energy and Commerce

MAY 21, 2001

Reported from the Committee on Transportation and Infrastructure; referred to the Committee of the Whole

House on the State of the Union and ordered to beprinted