I

105TH CONGRESS

1ST SESSION H. R. 873

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to limit Federal authority for response action

for releases subject to State voluntary response programs, to provide

protection for prospective purchasers of land, and for innocent landowners, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 27, 1997

Mr. GREENWOOD (for himself and Mr. KLINK) 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 amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to limit Federal

authority for response action for releases subject to State

voluntary response programs, to provide protection for

prospective purchasers of land, and for innocent landowners, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•HR 873 IH

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Land Recycling Act

3 of 1997’’.

4 SEC. 2. CLEANUPS PURSUANT TO STATE VOLUNTARY RE5 SPONSE PROGRAM.

6 (a) PROHIBITION ON ENFORCEMENT.—Subject to

7 subsection (c), neither the President nor any other person

8 (other than a State) may use any authority of the Com9 prehensive Environmental Response, Compensation, and

10 Liability Act of 1980 (42 U.S.C. 9601 et seq.) or of the

11 Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) to com12 mence an administrative or judicial action under either of

13 those Acts with respect to any release or threatened re14 lease at a facility that is, or has been, the subject of a

15 voluntary response plan in a State that meets the require16 ments of subsection (b).

17 (b) STATE REQUIREMENTS.—The prohibition in sub18 section (a) applies with respect to a facility in a State only

19 if the State—

20 (1) submits to the Administrator of the Envi21 ronmental Protection Agency a certification that the

22 State has enacted into law a voluntary response pro23 gram and that the State has committed the financial

24 and personnel resources necessary to carry out such

25 program; and
3

•HR 873 IH

1 (2) notifies the Administrator that a voluntary

2 response plan is being implemented at the facility

3 under that State program after such implementation

4 begins.

5 (c) LIMITATION ON PROHIBITION.—The prohibition

6 in subsection (a) and the exemption under subsection (f)

7 shall not apply with respect to a facility in a State if—

8 (1) the facility is listed on the National Prior9 ities List;

10 (2) the facility is proposed for listing on the

11 National Priorities List, based on a determination

12 by the Administrator that the facility qualifies for

13 listing pursuant to section 105 of the Comprehensive

14 Environmental Response, Compensation, and Liabil15 ity Act of 1980 (42 U.S.C. 9605);

16 (3) the facility is owned or operated by a de17 partment, agency, or instrumentality of the United

18 States; or

19 (4) an administrative order on consent or judi20 cial consent decree requiring response action has

21 been entered into by the United States with respect

22 to the facility under any of the following laws:

23 (A) The Comprehensive Environmental Re24 sponse, Compensation, and Liability Act of

25 1980 (42 U.S.C. 9601 et seq.).
4

•HR 873 IH

1 (B) The Solid Waste Disposal Act (42

2 U.S.C. 6901 et seq.).

3 (C) The Federal Water Pollution Control

4 Act (33 U.S.C. 1251 et seq.).

5 (D) The Toxic Substances Control Act (15

6 U.S.C. 2601 et seq.).

7 (E) Title XIV of the Public Health Service

8 Act (commonly known as the Safe Drinking

9 Water Act) (42 U.S.C. 300f et seq.)

10 (d) AUTHORITY TO GATHER INFORMATION.—The

11 Administrator may carry out investigations, monitoring,

12 surveys, testing, or other information gathering authorized

13 under section 104(b) of the Comprehensive Environmental

14 Response, Compensation, and Liability Act of 1980 (42

15 U.S.C. 9604(b)) with respect to facilities that are subject

16 to a State voluntary response program, but only for pur17 poses of determining whether the facility qualifies for list18 ing on the National Priorities List pursuant to section 105

19 of that Act.

20 (e) PRIOR ACTIONS.—Nothing in this section shall

21 affect administrative or judicial action commenced prior

22 to the date of enactment of this section.

23 (f) PERMITS AND OTHER REQUIREMENTS.—No Fed24 eral permit or permit revision shall be required for remedi25 ation activities undertaken on a site subject to, or being
5

•HR 873 IH

1 addressed pursuant to, a voluntary response plan under

2 a State voluntary response program if the plan and State

3 program are in compliance with this section.

4 (g) DEFINITIONS.—For purposes of this section:

5 (1) VOLUNTARY RESPONSE PROGRAM.—The

6 term ‘‘voluntary response program’’ means a pro7 gram established by a State specifically to allow a

8 person to respond voluntarily to the release or

9 threatened release of hazardous substances at facili10 ties in the State.

11 (2) VOLUNTARY RESPONSE PLAN.—The term

12 ‘‘voluntary response plan’’ means a plan for re13 sponding to the release or threatened release of haz14 ardous substances at a particular facility under a

15 State voluntary response program.

16 SEC. 3. INNOCENT LANDOWNERS.

17 Section 107 of the Comprehensive Environmental Re18 sponse, Compensation, and Liability Act of 1980 (42

19 U.S.C. 9607) is amended by adding at the end the follow20 ing new subsection:

21 ‘‘(n) INNOCENT LANDOWNERS.—

22 ‘‘(1) CONDUCT OF ENVIRONMENTAL ASSESS23 MENT.— A person who has acquired real property

24 shall have made all appropriate inquiry within the

25 meaning of subparagraph (B) of section 101(35) if
6

•HR 873 IH

1 he establishes that, within 180 days prior to the

2 time of acquisition, an environmental site assess3 ment of the real property was conducted which

4 meets the requirements of this subsection.

5 ‘‘(2) DEFINITION OF ENVIRONMENTAL SITE AS6 SESSMENT.—For purposes of this subsection, the

7 term ‘environmental site assessment’ means an as8 sessment conducted in accordance with the stand9 ards set forth in the American Society for Testing

10 and Materials (ASTM) Standard E1527–94, titled

11 ‘Standard Practice for Environmental Site Assess12 ments: Phase I Environmental Site Assessment

13 Process’ or with alternative standards issued by rule

14 by the Administrator or promulgated or developed

15 by others and designated by rule by the Adminis16 trator. Before issuing or designating alternative

17 standards, the Administrator shall first conduct a

18 study of commercial and industrial practices con19 cerning environmental site assessments in the trans20 fer of real property in the United States. Any such

21 standards issued or designated by the Administrator

22 shall also be deemed to constitute commercially rea23 sonable and generally accepted standards and prac24 tices for purposes of this paragraph. In issuing or

25 designating any such standards, the Administrator
7

•HR 873 IH

1 shall consider requirements governing each of the

2 following:

3 ‘‘(A) Interviews of owners, operators, and

4 occupants of the property to determine informa5 tion regarding the potential for contamination.

6 ‘‘(B) Review of historical sources as nec7 essary to determine previous uses and occupan8 cies of the property since the property was first

9 developed. For purposes of this subclause, the

10 term ‘historical sources’ means any of the fol11 lowing, if they are reasonably ascertainable: re12 corded chain of title documents regarding the

13 real property, including all deeds, easements,

14 leases, restrictions, and covenants, aerial photo15 graphs, fire insurance maps, property tax files,

16 USGS 7.5 minutes topographic maps, local

17 street directories, building department records,

18 zoning/land use records, and any other sources

19 that identify past uses and occupancies of the

20 property.

21 ‘‘(C) Determination of the existence of re22 corded environmental cleanup liens against the

23 real property which have arisen pursuant to

24 Federal, State, or local statutes.
8

•HR 873 IH

1 ‘‘(D) Review of reasonably ascertainable

2 Federal, State, and local government records of

3 sites or facilities that are likely to cause or con4 tribute to contamination at the real property,

5 including, as appropriate, investigation reports

6 for such sites or facilities; records of activities

7 likely to cause or contribute to contamination at

8 the real property, including landfill and other

9 disposal location records, underground storage

10 tank records, hazardous waste handler and gen11 erator records and spill reporting records; and

12 such other reasonably ascertainable Federal,

13 State, and local government environmental

14 records which could reflect incidents or activi15 ties which are likely to cause or contribute to

16 contamination at the real property.

17 ‘‘(E) A visual site inspection of the real

18 property and all facilities and improvements on

19 the real property and a visual inspection of im20 mediately adjacent properties, including an in21 vestigation of any hazardous substance use,

22 storage, treatment, and disposal practices on

23 the property.

24 ‘‘(F) Any specialized knowledge or experi25 ence on the part of the defendant.
9

•HR 873 IH

1 ‘‘(G) The relationship of the purchase

2 price to the value of the property if

3 uncontaminated.

4 ‘‘(H) Commonly known or reasonably as5 certainable information about the property.

6 ‘‘(I) The obviousness of the presence or

7 likely presence of contamination at the prop8 erty, and the ability to detect such contamina9 tion by appropriate investigation.

10 A record shall be considered to be ‘reasonably ascer11 tainable’ for purposes of this paragraph if a copy or

12 reasonable facsimile of the record is publicly avail13 able by request (within reasonable time and cost

14 constraints) and the record is practically reviewable.

15 ‘‘(3) MAINTENANCE OF INFORMATION.—No

16 presumption shall arise under paragraph (1) unless

17 the defendant has maintained a compilation of the

18 information reviewed and gathered in the course of

19 the environmental site assessment.

20 ‘‘(4) DEFINITION OF CONTAMINATION.—For

21 the purposes of this subsection and section 101(35),

22 the term ‘contamination’ means an existing release,

23 a past release, or the material threat of a release of

24 a hazardous substance, other than de minimis condi25 tions that generally do not present a material risk
10

•HR 873 IH

1 of harm to public health or welfare or the environ2 ment.’’.

3 (b) CROSS REFERENCE.—Section 101(35)(B) (42

4 U.S.C. 9601(35)(B)) is amended by inserting after ‘‘all

5 appropriate inquiry’’ the following: ‘‘(as specified in sec6 tion 107(n))’’.

7 SEC. 4. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.

8 (a) LIABILITY.—Section 107 of the Comprehensive

9 Environmental Response, Compensation, and Liability Act

10 of 1980 (42 U.S.C. 9607) is amended by after subsection

11 (n) the following new subsections:

12 ‘‘(o) BONA FIDE PROSPECTIVE PURCHASER.—(1)

13 Notwithstanding paragraphs (1) through (4) of subsection

14 (a), a person who does not impede the performance of a

15 response action or natural resource restoration at a facil16 ity shall not be liable to the extent liability at such facility

17 is based solely on paragraph (1) of subsection (a) for a

18 release or threat of release from the facility, and the per19 son is a bona fide prospective purchaser of the facility.

20 ‘‘(2) For purposes of this subsection, the term ‘bona

21 fide prospective purchaser’ means a person who acquires

22 ownership of a facility after the date of enactment of this

23 subsection, or a tenant of such a person, who can establish

24 each of the following by a preponderance of the evidence:
11

•HR 873 IH

1 ‘‘(A) All active disposal of hazardous substances

2 at the facility occurred before that person acquired

3 the facility.

4 ‘‘(B) The person made all appropriate inquiry

5 into the previous ownership and uses of the facility

6 and its real property in accordance with generally

7 accepted commercial and customary standards and

8 practices. Standards described in section 107(n)(2)

9 (relating to innocent landowners) shall satisfy the

10 requirements of this subparagraph. In the case of

11 property for residential or other similar use, pur12 chased by a nongovernmental or noncommercial en13 tity, a site inspection and title search that reveal no

14 basis for further investigation satisfy the require15 ments of this subparagraph.

16 ‘‘(C) The person provided all legally required

17 notices with respect to the discovery or release of

18 any hazardous substances at the facility.

19 ‘‘(D) The person exercised appropriate care

20 with respect to hazardous substances found at the

21 facility by taking reasonable steps to stop on-going

22 releases, prevent threatened future releases of haz23 ardous substances, and prevent or limit human or

24 natural resource exposure to hazardous substances

25 previously released into the environment.
12

•HR 873 IH

1 ‘‘(E) The person provides full cooperation, as2 sistance, and facility access to persons authorized to

3 conduct response actions at the facility, including

4 the cooperation and access necessary for the installa5 tion, integrity, operation, and maintenance of any

6 complete or partial response action at the facility.

7 ‘‘(F) The person is not affiliated with any other

8 person liable for response costs at the facility,

9 through any direct or indirect familial relationship,

10 or any contractual, corporate, or financial relation11 ship other than that created by the instruments by

12 which title to the facility is conveyed or financed.’’.

13 ‘‘(p) PROSPECTIVE PURCHASER AND WINDFALL

14 LIEN.—(1) In any case in which there are unrecovered

15 response costs at a facility for which an owner of the facil16 ity is not liable by reason of section 107(o), and the condi17 tions described in paragraph (2) are met, the United

18 States shall have a lien upon such facility for such unre19 covered costs. Such lien—

20 ‘‘(A) shall not exceed the increase in fair mar21 ket value of the property attributable to the response

22 action at the time of a subsequent sale or other dis23 position of property;
13

•HR 873 IH

1 ‘‘(B) shall arise at the time costs are first in2 curred by the United States with respect to a re3 sponse action at the facility;

4 ‘‘(C) shall be subject to the requirements for

5 notice and validity established in paragraph (3) of

6 subsection (l); and

7 ‘‘(D) shall continue until the earlier of satisfac8 tion of the lien or recovery of all response costs in9 curred at the facility.

10 ‘‘(2) The conditions referred to in paragraph (1) are

11 the following:

12 ‘‘(A) A response action for which there are un13 recovered costs is carried out at the facility.

14 ‘‘(B) Such response action increases the fair

15 market value of the facility above the fair market

16 value of the facility that existed within 6 months be17 fore the response action was taken.

18 ‘‘(3) No lien under this section shall arise—

19 ‘‘(A) with respect to property for which the

20 property owner preceding the first bona fide pro21 spective purchaser is not a liable party or has re22 solved its liability under this Act, or

23 ‘‘(B) where an environmental assessment gives

24 the bona fide prospective purchaser no knowledge or
14

•HR 873 IH

1 reason to know of the release of hazardous sub2 stances.’’.

Æ