I
103D CONGRESS
1ST SESSION
H. R. 2137
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 to provide relief to local taxpayers, municipalities,
and small businesses regarding the cleanup of hazardous substances,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 17, 1993
Mr. TORRICELLI (for himself and Mr. DREIER) introduced the following bill;
which was referred jointly to the Committees on Energy and Commerce
and Public Works and Transportation
A BILL
To amend the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 to provide relief
to local taxpayers, municipalities, and small businesses
regarding the cleanup of hazardous substances, and for
other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Toxic Cleanup Equity
Act of 1993’’.
SEC. 2. FINDINGS.
Consistent with the policies under the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA) (42 U.S.C. 9601 et seq.), the Con-
gress finds that—
(1) the polluter should pay for cleanup, and
cleanups must fully protect human health and the
environment;
(2) municipalities have traditionally performed
the public service of helping their citizens dispose of
ordinary garbage and sewage, and have at times
been required to perform this function under State
law;
(3) municipalities did not operate their waste
disposal services for the purpose of receiving a
profit;
(4) many municipal landfills used to dispose of
garbage and sewage sludge also have been used to
dispose of industrial hazardous waste, which has
contaminated the sites and created the need for
Superfund cleanups;
(5) the vast majority of the hazardous sub-
stances that are causing threats to human health
and the environment at Superfund sites were pro-
duced by non-municipal operations;
(6) third-party contribution suits based on the
generation or transportation of municipal solid waste
and sewage sludge distort the intent of CERCLA
and drain the precious resources of municipalities,
small businesses, and nonprofit associations;
(7) many of the Nation’s local governments are
facing a financial crisis, and their ability to provide
essential public services is being threatened;
(8) municipalities are facing expensive man-
dates imposed by the Federal and State govern-
ments, including some related to environmental pro-
tection; and
(9) municipalities that own Superfund sites
bear a double burden: their citizens live near the
sites and these local governments may be forced to
cut back on important public health and safety serv-
ices to help pay for the cleanup.
SEC. 3. MUNICIPALITIES, MUNICIPAL SOLID WASTE, AND
SEWAGE SLUDGE.
(a) Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601) is amended by adding the following new
paragraphs at the end thereof:
‘‘(39) The term ‘municipal solid waste’ means
all waste materials generated by households, includ-
ing single and multiple residences, and hotels and
motels. The term also includes waste materials gen-
erated by commercial, institutional, and industrial
sources (A) when such waste materials are essen-
tially the same as waste normally generated by
households, or (B) when such waste materials were
collected and disposed of with other municipal solid
waste or sewage sludge and, regardless of when gen-
erated, would be considered conditionally exempt
small quantity generator waste under section
3001(d) of the Solid Waste Disposal Act (42 U.S.C.
6921(d)). Examples of municipal solid waste include
food and yard waste, paper, clothing, appliances,
consumer product packaging, disposable diapers, of-
fice supplies, cosmetics, glass and metal food con-
tainers, school science laboratory waste, and house-
hold hazardous waste (such as painting, cleaning,
gardening, and automotive supplies). For the pur-
poses of this Act, the term ‘municipal solid waste’
does not include combustion ash generated by re-
source recovery facilities or municipal incinerators,
or waste from manufacturing or processing (includ-
ing pollution control) operations not essentially the
same as waste normally generated by households.
‘‘(40) The term ‘sewage sludge’ refers to any
solid, semisolid, or liquid residue removed during the
treatment of municipal waste water, domestic sew-
age, or other waste waters at or by a publicly-owned
treatment works.
‘‘(41) The term ‘municipality’ means any politi-
cal subdivision of a State and may include cities,
counties, villages, towns, townships, boroughs, par-
ishes, schools, school districts, sanitation districts,
water districts, and other local governmental enti-
ties. The term also includes any natural person act-
ing in his or her official capacity as an official, em-
ployee, or agent of a municipality.’’.
(b) Section 113 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9613) is amended by adding the following new sub-
sections at the end thereof:
‘‘(m) CONTRIBUTION ACTIONS
FOR GENERATORS
AND TRANSPORTERS OF MUNICIPAL SOLID WASTE AND
SEWAGE SLUDGE.—No municipality or other person shall
be liable to any person other than the President for claims
of contribution under this section or for other response
costs, penalties, or damages under this Act for the genera-
tion, transportation, or arrangement for the transpor-
tation, treatment, or disposal of municipal solid waste or
sewage sludge.
‘‘(n) CONTRIBUTION ACTIONS FOR MUNICIPAL OWN-
ERS AND OPERATORS.—No eligible municipality as de-
fined in section 122(p) shall be liable to any person other
than the President for claims of contribution under this
section or for other response costs, penalties, or damages
under this Act for the ownership or operation of a facility
to the extent that the municipality is an eligible municipal-
ity under section 122(p)(1).
‘‘(o) PUBLIC RIGHT-OF-WAY.—In no event shall a
municipality incur liability under this Act for the acts of
owning or maintaining a public right-of-way over which
hazardous substances are transported, or of granting a
business license to a private party for the transportation,
treatment, or disposal of municipal solid waste or sewage
sludge. For the purposes of this subsection, ‘public right-
of-way’ includes, but is not limited to, roads, streets, flood
control channels, or other public transportation routes,
and pipelines used as a conduit for sewage or other liquid
or semiliquid discharges.’’.
(c) Section 122 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9622) is amended by adding the following new sub-
sections at the end thereof:
‘‘(n) SETTLEMENT PROCEDURES FOR GENERATORS
AND TRANSPORTERS OF MUNICIPAL SOLID WASTE OR
SEWAGE SLUDGE.—
‘‘(1) ELIGIBLE
PERSONS.—The term ‘eligible
person’ under this subsection means any person
against whom an administrative or judicial action is
brought, or to whom notice is given of potential li-
ability under this Act, for the generation, transpor-
tation, or arrangement for the transportation, treat-
ment, or disposal of municipal solid waste or sewage
sludge. An eligible person who may be liable under
paragraph (1) or (2) of section 107(a) or for sub-
stances other than municipal solid waste or sewage
sludge is covered by this subsection to the extent
that the person is liable for the generation, transpor-
tation, or arrangement for the transportation, treat-
ment, or disposal of municipal solid waste or sewage
sludge.
‘‘(2) NEGOTIATION OF SETTLEMENTS; MORATO-
RIUM.—Eligible persons under this subsection may
offer to settle their potential liability with the Presi-
dent by stating in writing their ability and willing-
ness to settle their potential liability in accordance
with this subsection. Upon receipt of such good faith
offer to settle, no further administrative or judicial
action shall be taken against the eligible person, un-
less the President determines that the eligible per-
son’s offer or position during negotiations is not in
good faith or otherwise not in accordance with this
subsection or that the matters addressed include li-
ability not related to the generation, transportation,
or arrangement for the transportation, treatment, or
disposal of municipal solid waste or sewage sludge.
Nothing in this subsection shall limit or modify the
President’s authority under section 104(e).
‘‘(3) TIMING.—Eligible persons may tender of-
fers under this subsection within 180 days after re-
ceiving a notice of potential liability or becoming
subject to administrative or judicial action, or within
180 days after a record of decision is issued for the
portion of the response action that is the subject of
the person’s settlement offer, whichever is later. If
the President notifies an eligible person that he or
she may be a potentially responsible party, no fur-
ther administrative or judicial action may be taken
by any party for 120 days against such person.
‘‘(4) EXPEDITED
FINAL
SETTLEMENT.—The
President shall make a good faith effort to reach
final settlements as promptly as possible under this
subsection, and such settlements shall—
‘‘(A) allocate to all generation, transpor-
tation, or arrangement for the transportation,
treatment, or disposal of municipal solid waste
or sewage sludge a combined total of no more
than four percent (4%) of the total response
costs for the facility: Provided, however, That
the President shall reduce this percentage when
the volume of municipal solid waste and sewage
sludge present at the facility is not significant;
‘‘(B) require an eligible person under this
subsection to pay only for his or her equitable
share of the maximum four percent (4%) por-
tion of response costs described in subpara-
graph (A);
‘‘(C) reduce an eligible person’s payments
based on such person’s inability to pay,
litigative risks, public interest considerations,
precedential value, and equitable factors;
‘‘(D) permit an eligible person to provide
appropriate in-kind services with regard to the
response action in lieu of cash contributions
and to be credited at market rates for such
services;
‘‘(E) reduce a publicly owned treatment
works’ payments if it has promoted the bene-
but the settlement reduces the potential liability of
the other parties by the amount of the settlement.
‘‘(7) DE MINIMIS SETTLEMENTS.—Nothing in
this subsection shall alter or diminish a person’s
ability to reach a settlement with the President
under subsection (g).
‘‘(8) JUDICIAL REVIEW.—Any judicial review of
a settlement reached with the President under this
subsection shall be limited to the administrative
record. Otherwise applicable principles of adminis-
trative law shall govern whether any supplemental
materials may be considered by the court. In consid-
ering objections raised to such a settlement, the
court shall uphold the President’s decision to enter
into the settlement unless the objecting party can
demonstrate, on the administrative record, that the
decision was arbitrary, capricious, or otherwise not
in accordance with law.
‘‘(o) FUTURE
DISPOSAL
PRACTICES.—This sub-
section applies only to the generation, transportation, or
arrangement for the transportation, treatment, or disposal
of municipal solid waste or sewage sludge occurring 36
months after the date of enactment of this subsection or
thereafter. Beginning at such time and with regard to
such future municipal solid waste or sewage sludge, eligi-
ble persons who are municipalities or operators of publicly
owned treatment works may assert the provisions of sub-
section (n) only under the following circumstances:
‘‘(1) If liability arises from municipal solid
waste collected and disposed of 36 months or later
after the date of enactment of this subsection and
the eligible person is a municipality, a qualified
household hazardous waste collection program must
have been operating while such municipal solid waste
was collected and disposed.
‘‘(2) If liability arises from sewage sludge gen-
erated 36 months or later after the date of enact-
ment of this subsection and the eligible person is an
owner or operator of a publicly owned treatment
works, a qualified publicly owned treatment works
must have been operating while such sewage sludge
was generated at such treatment works.
‘‘(3) The term ‘qualified household hazardous
waste collection program’ means a program that in-
cludes—
‘‘(A) at least semiannual, well-publicized
collections at conveniently located collection
points with an intended goal of participation by
ten percent of community households;
‘‘(B) a public education program that iden-
tifies potentially hazardous household products,
safer substitutes (source reduction), and proper
use and disposal of consumer products;
‘‘(C) efforts to collect hazardous waste
from conditionally exempt small quantity gen-
erators under section 3001(d) of the Solid
Waste Disposal Act (42 U.S.C. 6921(d)), with
an intended goal of collecting wastes from twen-
ty percent of such generators doing business
within the jurisdiction of the municipality; and
‘‘(D) a comprehensive plan, which may in-
clude regional compacts or joint ventures, that
outlines how the program will be accomplished.
‘‘(4) To satisfy the criterion of having a quali-
fied household hazardous waste collection program
in operation, a municipality may operate its own
program or may certify that other persons are, joint-
ly or individually, operating each of the elements of
a qualified program which serves the municipality’s
jurisdiction, and such other persons may include,
but are not limited to, private contractors and busi-
nesses, other municipalities, and States.
‘‘(5) A person that operates a ‘qualified house-
hold hazardous waste collection program’ and col-
lects hazardous waste from conditionally exempt
small quantity generators under section 3001(d) of
the Solid Waste Disposal Act (42 U.S.C. 6921(d))
must transport or arrange to transport such waste
in accordance with the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.) and must dispose of such waste
at a hazardous waste treatment, storage, or disposal
facility with a permit under section 3005 of the
Solid Waste Disposal Act (42 U.S.C. 6925), but
such person is otherwise deemed to be handling only
household waste under the Solid Waste Disposal Act
when the person operates a qualified household haz-
ardous waste collection program.
‘‘(6) Nothing in this Act is intended to prohibit
a person from assessing fees to persons whose waste
is accepted during household hazardous waste collec-
tions, or shall prohibit a person from refusing to ac-
cept waste that the person believes is being disposed
of in violation of the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.).
‘‘(7) The term ‘qualified publicly owned treat-
ment works’ means a publicly owned treatment
works that complies with section 405 of the Federal
Water Pollution Control Act (33 U.S.C. 1345).
‘‘(8) The President may determine that a
household hazardous waste collection program or a
publicly owned treatment works is not qualified
under this subsection. Minor instances of noncompli-
ance do not render a household hazardous waste col-
lection program or publicly owned treatment works
unqualified under this subsection.
‘‘(9) If the President determines that a house-
hold hazardous waste collection program is not
qualified, the provisions of subsection (n) shall not
apply, but only with regard to the municipal solid
waste disposed of during the period of disqualifica-
tion.
‘‘(10) If a municipality or operator of a publicly
owned treatment works is notified by the President
or by a State with a program approved under sec-
tion 402(b) of the Federal Water Pollution Control
Act (33 U.S.C. 1342(b)) that the publicly owned
treatment works of the municipality or operator is
not in compliance with the requirements of para-
graph (7), and if such noncompliance is not rem-
edied within twelve months, the provisions of sub-
section (n) shall not apply, but only with regard to
the sewage sludge generated or disposed of during
the period of noncompliance.
‘‘(p) SETTLEMENT PROCEDURES
FOR MUNICIPAL
OWNERS AND OPERATORS.—
‘‘(1) ELIGIBLE MUNICIPALITIES.—The term ‘el-
igible municipality’ under this subsection means any
municipality against which an administrative or judi-
cial action is brought, or to which notice is given of
potential liability, under paragraph (1) or (2) of sec-
tion 107(a) with respect to a facility that does not
contain, by overall volume, predominantly wastes
produced by municipal operations that are wastes
other than municipal solid waste or sewage sludge,
and which meets all of the following conditions:
‘‘(A) Before the date of enactment of this
subsection, the municipality owned or operated
the facility or an identifiable unit at such
facility.
‘‘(B) Such facility or identifiable unit at
such facility was or is subject to a response
action.
‘‘(C) Such facility or identifiable unit at
such facility, with respect to which the munici-
pality seeks to resolve its liability under this
subsection, does not receive any waste after the
date of enactment of this subsection.
A municipality that may be liable under paragraph
(3) or (4) of section 107(a) is covered by this sub-
section to the extent that the municipality is eligible
under this paragraph.
‘‘(2) NEGOTIATION OF SETTLEMENTS; MORATO-
RIUM.—Eligible municipalities under this subsection
may offer to settle their potential liability with the
President by stating in writing their ability and will-
ingness to settle their potential liability in accord-
ance with this subsection. Upon receipt of such good
faith offer to settle, no further administrative or ju-
dicial action shall be taken against the eligible mu-
nicipality, unless the President determines that the
eligible municipality’s offer or position during nego-
tiations is not in good faith or otherwise not in ac-
cordance with this subsection. Nothing in this sub-
section shall limit or modify the President’s author-
ity under section 104(e).
‘‘(3) TIMING.—Eligible municipalities may ten-
der offers under this subsection within 180 days
after receiving a notice of potential liability or be-
coming subject to administrative or judicial action,
or within 180 days after a record of decision is is-
sued for the portion of the response action that is
the subject of the municipality’s settlement offer,
whichever is later. If the President notifies an eligi-
ble municipality that it may be a potentially respon-
sible party, no further administrative or judicial ac-
tion may be taken by any party for 120 days against
such municipality.
‘‘(4) EXPEDITED
FINAL
SETTLEMENT.—The
President shall make a good faith effort to reach
final settlements as promptly as possible under this
subsection, and such settlements shall conform to
the following criteria:
‘‘(A) Such settlements shall take into ac-
count the public interest factors normally con-
sidered by the President in formulating settle-
ments under this Act.
‘‘(B) The amount demanded in settlement
shall not exceed the municipality’s ability to
pay. The municipality’s ‘ability to pay’ shall be
determined by the President through a consid-
eration of factors, including but not limited to
the following: (i) the ratio of debt service to op-
erating revenues, other than obligated or en-
cumbered revenues, (ii) the ratio of total funds,
other than dedicated funds, to total expenses,
(iii) the ratio of total revenues, other than obli-
gated or encumbered revenues, to total ex-
penses, (iv) the ratio of debt service to popu-
lation, (v) the ratio of operating revenues, other
than obligated or encumbered revenues, to pop-
ulation, (vi) the ratio of total expenses to popu-
lation, (vii) the ratio of total funds, other than
dedicated funds, to total revenues, (viii) the
ratio of total funds, other than dedicated funds,
to population, (ix) the impact of the settlement
on essential services the municipality must pro-
vide, and (x) the feasibility of making delayed
payments and payments over time.
‘‘(C) A municipality shall not be deemed to
possess the ability to pay to the extent that
such payment would create a significant, de-
monstrable risk that the municipality will de-
fault on existing debt obligations, be forced into
bankruptcy, be forced to dissolve, or be forced
to make budgetary cutbacks that unduly impede
the protection of public health and safety by the
municipality. Municipal activities that protect
‘public health and safety’ include all operations
that can protect the environment, human and
animal health, and public safety, including but
not limited to environmental protection and res-
toration, police and fire protection, hospitals
and medical services, human services, and
water, sewage, and solid waste services. Such
municipal activities do not include operations
that are primarily intended to provide rec-
reational activities or aesthetic civic improve-
ments.
‘‘(D) A municipality shall not be deemed to
possess the ability to pay to the extent that the
President determines that raising the funds for
such payment would violate legal requirements
or limitations of general applicability concerning
the assumption and maintenance of municipal
fiscal obligations: Provided, That for the pur-
poses of this subparagraph, a legal requirement
or limitation of general applicability means a
legislative enactment that governs a municipal-
ity’s financial affairs generally and that is not
limited to the payment of claims for costs or
damages under this Act.
‘‘(E) If a municipality asserts that it has
obligations under any applicable environmental
law besides the municipality’s potential liability
under this Act, such municipality may create a
list of the obligations and estimate the costs of
complying with each obligation, and, if re-
quested by the municipality, the President shall
provide assistance with these tasks and shall
consider the total cost of these obligations in
determining whether the municipality has an
ability to pay.
‘‘(F) Once the appropriate settlement
amount has been determined, the President
shall permit an eligible municipality to provide
appropriate in-kind services with regard to the
response action in lieu of cash contributions
and to be credited at market rates for such
services.
‘‘(G) Notwithstanding the entry of consent
decrees by the President with other potentially
responsible parties, the provisions of this para-
graph shall apply to the remaining allocation of
response costs, penalties, and damages to eligi-
ble municipalities.
‘‘(5) EFFECT OF AGREEMENT.—An eligible mu-
nicipality that has resolved its liability to the United
States under this subsection shall not be liable for
claims of contribution or for other response costs,
penalties, or damages under this Act regarding mat-
ters addressed in the settlement. Such settlement
does not discharge any of the other potentially re-
sponsible parties unless the terms of the settlement
so provide, but the settlement reduces the potential
liability of the other parties by the amount of the
settlement.
‘‘(6) CONSOLIDATED SETTLEMENTS.—If a mu-
nicipality is an eligible municipality under this sub-
section and an eligible person under subsection (n)
with regard to the same facility, the President
should attempt to reach a single, expeditious settle-
ment with the municipality covering all liability that
may be addressed by settlements under subsection
(n) or (p).
‘‘(7) ONGOING WASTE DISPOSAL; BURDEN OF
PROOF.—If an eligible municipality receives waste
after the date of enactment of this subsection at
units adjacent to those units of the facility for which
the municipality is eligible under paragraph (1), and
if releases or threatened releases into the environ-
ment on or beneath the open units are threatened or
occur, then the municipality shall bear the burden of
proving that such releases are caused by the closed
units in any judicial or administrative proceeding in
which the municipality’s liability is at issue under
environmental law.
‘‘(8) JUDICIAL REVIEW.—Any judicial review of
a settlement reached with the President under this
subsection shall be limited to the administrative
record. Otherwise applicable principles of adminis-
trative law shall govern whether any supplemental
materials may be considered by the court. In consid-
ering objections raised to such a settlement, the
court shall uphold the President’s decision to enter
into the settlement unless the objecting party can
demonstrate, on the administrative record, that the
decision was arbitrary, capricious, or otherwise not
in accordance with law.’’.
(d) Section 122(g)(1)(A)(i) of the Comprehensive En-
vironmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9622(g)(1)(A)(i)) is amended by adding
the following new sentence at the end thereof: ‘‘The
amount of hazardous substances in municipal solid waste
and sewage sludge shall refer to the quantity of hazardous
substances which are constituents within municipal solid
waste and sewage sludge, not the overall volume of munici-
pal solid waste and sewage sludge present at the facility.’’.
(e) Nothing in this section or the amendments made
by this section shall modify the meaning or interpretation
of the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).
(f) Nothing in this section or the amendments made
by this section shall modify a State’s ability under the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.) to
carry out actions authorized in such Act and to enter into
a contract or cooperative agreement with the President to
carry out such actions.
(g) The settlement procedures and bar on judicial
and administrative proceedings addressed in this section
and the amendments made by this section shall apply even
if any constituent component of municipal solid waste or
sewage sludge may be considered a hazardous substance
under the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) when the constituent component exists apart from
municipal solid waste or sewage sludge.
(h) This section and the amendments made by this
section shall apply to each municipality and other person
against whom administrative or judicial action has been
commenced before the date of enactment of this Act, un-
less a final court judgment has been rendered against such
municipality or other person or final court approval of a
settlement agreement including such municipality or other
person as a party has been granted. If a final court judg-
ment has been rendered or court-approved settlement
agreement has been reached that does not resolve all con-
tested issues, this section and the amendments made by
this section shall apply to all contested issues not expressly
resolved by such court judgment or settlement agreement.
Æ
HR 2137 IH——2