109
box cars), which when worn or superfluous can be
recycled, except for scrap metals that the Adminis-
trator excludes from this definition by regulation
and steel shipping containers of a capacity from 30
liters to and including 3,000 liters, whether intact or
not, having any hazardous substance (but not metal
bits or pieces) contained in or adhering thereto.
‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—
‘‘(1) Transactions involving spent lead-acid bat-
teries, spent nickel-cadmium batteries, or other
spent batteries shall be deemed to be arranging for
recycling if the person who arranged for the trans-
action (by selling recyclable material or otherwise ar-
ranging for the recycling of recyclable material) can
demonstrate by a preponderance of the evidence that
at the time of the transaction—
‘‘(A) the person met the criteria set forth
in subsection (c) with respect to the spent lead-
acid batteries, spent nickel-cadmium batteries,
or other spent batteries, but did not recover the
valuable components of such batteries; and
‘‘(B)(i) with respect to transactions involv-
ing lead-acid batteries, the person was in com-
pliance with applicable Federal environmental
regulations or standards, and any amendments
110
thereto, regarding the storage, transport, man-
agement, or other activities associated with the
recycling of spent lead-acid batteries;
‘‘(ii) with respect to transactions involving
nickel-cadmium 
batteries, 
Federal 
environ-
mental regulations or standards are in effect re-
garding the storage, transport, management, or
other activities associated with the recycling of
spent nickel-cadmium batteries, and the person
was in compliance with applicable regulations or
standards or any amendments thereto; or
‘‘(iii) with respect to transactions involving
other spent batteries, Federal environmental
regulations or standards are in effect regarding
the storage, transport, management, or other
activities associated with the recycling of such
batteries, and the person was in compliance
with applicable regulations or standards or any
amendments thereto.
‘‘(2) For purposes of paragraph (1)(A), a per-
son who, by contract, arranges or pays for process-
ing of batteries by an unrelated third person and re-
ceives from such third person materials reclaimed
from such batteries shall not thereby be deemed to
recover the valuable components of such batteries.
111
‘‘(f) EXCLUSIONS.—
‘‘(1) The exemptions set forth in subsections
(c), (d), and (e) shall not apply if—
‘‘(A) the person had an objectively reason-
able basis to believe at the time of the recycling
transaction—
‘‘(i) that the recyclable material would
not be recycled;
‘‘(ii) that the recyclable material
would be burned as fuel, or for energy re-
covery or incineration; or
‘‘(iii) for transactions occurring before
90 days after the date of the enactment of
this section, that the consuming facility
was not in compliance with a substantive
(not procedural or administrative) provi-
sion of any Federal, State, or local envi-
ronmental law or regulation, or compliance
order or decree issued pursuant thereto,
applicable to the handling, processing, rec-
lamation, or other management activities
associated with the recyclable material;
‘‘(B) the person had reason to believe that
hazardous substances had been added to the re-
112
cyclable material for purposes other than proc-
essing for recycling;
‘‘(C) the person failed to exercise reason-
able care with respect to the management and
handling of the recyclable material (including
adhering to customary industry practices cur-
rent at the time of the recycling transaction de-
signed to minimize, through source control, con-
tamination of the recyclable material by hazard-
ous substances); or
‘‘(D) with respect to any item of a recycla-
ble material, the item—
‘‘(i) 
contained 
polychlorinated
biphenyls at a concentration in excess of
50 parts per million or any new standard
promulgated pursuant to applicable Fed-
eral laws; or
‘‘(ii) is an item of scrap paper con-
taining at the time of the recycling trans-
action a concentration of a hazardous sub-
stance that has been determined by the
Administrator, after notice and comment,
to present a significant risk to human
health or the environment in light of the
113
nature of scrap paper management and re-
cycling.
‘‘(2) For purposes of this subsection, an objec-
tively reasonable basis for belief shall be determined
using criteria that include (but are limited to) the
size of the person’s business, customary industry
practices (including customary industry practices
current at the time of the recycling transaction de-
signed to minimize, through source control, contami-
nation of the recyclable material by hazardous sub-
stances), the price paid in the recycling transaction,
and the ability of the person to detect the nature of
the consuming facility’s operations concerning its
handling, processing, reclamation, or other manage-
ment activities associated with the recyclable mate-
rial.
‘‘(3) For purposes of this subsection, a require-
ment to obtain a permit applicable to the handling,
processing, reclamation, or other management activi-
ties associated with recyclable material shall be
deemed to be a substantive provision.
‘‘(g) EFFECT
ON OTHER LIABILITY.—Nothing in
this section shall be deemed to affect the liability of a per-
son under paragraph (1) or (2) of section 107(a).
114
‘‘(h) REGULATIONS.—The Administrator has the au-
thority, under section 115, to promulgate additional regu-
lations concerning this section.
‘‘(i) EFFECT
ON PENDING
OR CONCLUDED AC-
TIONS.—The exemptions provided in this section shall not
affect any concluded judicial or administrative action or
any pending judicial action initiated by the United States
prior to enactment of this section.
‘‘(j) LIABILITY FOR ATTORNEY’S FEES FOR CERTAIN
ACTIONS.—Any person who commences an action in con-
tribution against a person who is not liable by operation
of this section shall be liable to that person for all reason-
able costs of defending that action, including all reason-
able attorney’s and expert witness fees.
‘‘(k) RELATIONSHIP TO LIABILITY UNDER OTHER
LAWS.—Nothing in this section shall affect—
‘‘(1) liability under any other Federal, State, or
local statute or regulation promulgated pursuant to
any such statute, including any requirements pro-
mulgated by the Administrator under the Solid
Waste Disposal Act; or
‘‘(2) the ability of the Administrator to promul-
gate regulations under any other statute, including
the Solid Waste Disposal Act.’’.
115
TITLE III—BROWNFIELDS
SEC. 301. SHORT TITLE.
This title may be cited as the ‘‘Land Recycling Act
of 1997’’.
SEC. 302. FINDINGS.
(a) FINDINGS.—Congress finds the following:
(1) Brownfields are parcels of land that contain
or contained abandoned or under used commercial
or industrial facilities, the expansion or redevelop-
ment of which is complicated by the actual or poten-
tial presence of hazardous substances, pollutants, or
contaminants.
(2) Brownfields, which may number in the hun-
dreds of thousands nationwide, threaten the environ-
ment, devalue surrounding property, erode State and
local tax bases, and prevent job growth.
(3) The primary environmental reason that cur-
rent owners and prospective developers do not rede-
velop brownfields is their legitimate fears about the
potential liability under environmental laws associ-
ated with the cleanup and redevelopment of these
sites.
(4) Current Federal law poses a barrier to the
cleanup and redevelopment of brownfields, leading
instead to the development of so-called greenfields,
116
contributing to urban sprawl, creating infrastructure
problems, and reducing recreational and agricultural
opportunities.
(5) Cleanup and redevelopment of brownfields
will reduce environmental contamination, encourage
job growth, enhance State and local tax bases, and
curb the development of greenfields.
(6) Many States have enacted voluntary clean-
up programs to address the brownfields problem by
allowing for the consideration of future land use in
deciding appropriate cleanup standards and provid-
ing clear releases of liability upon completion of
cleanups.
(7) State voluntary response programs have
been very effective in promoting the cleanup and re-
development of brownfields while ensuring the ade-
quate protection of human health and the environ-
ment.
(b) PURPOSES AND OBJECTIVES.—The purposes and
objectives of this section are—
(1) to increase significantly the pace of re-
sponse activities at contaminated sites by promoting
and encouraging the creation, development, and en-
hancement of State voluntary response programs;
and
117
(2) to remove existing Federal barriers to the
cleanup of brownfield sites; and
(3) to benefit the public health, welfare, and the
environment by cleaning up and returning contami-
nated sites to economically productive or other bene-
ficial uses.
SEC. 303. CLEANUPS PURSUANT TO STATE VOLUNTARY RE-
SPONSE PROGRAM.
(a) PROHIBITION
ON ENFORCEMENT.—Except as
otherwise provided in this section, neither the President
nor any other person (other than a State) may use any
authority of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.) or of the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.) to commence an administrative or judicial
action under either of those Acts with respect to any re-
lease or threatened release at a facility that is, or has
been, the subject of a voluntary response plan in a State
that meets the requirements of subsection (b).
(b) STATE REQUIREMENTS.—The prohibition in sub-
section (a) applies with respect to a facility in a State only
if the State submits to the Administrator of the Environ-
mental Protection Agency a certification that the State
has enacted into law a voluntary response program, that
the State has committed the financial and personnel re-
118
sources necessary to carry out such program, and that
such program will be implemented in a manner protective
of human health and the environment.
(c) LIMITATION ON PROHIBITION.—The prohibition
under subsection (a) and the exemption under subsection
(f) shall not apply with respect to—
(1) any facility listed on the National Priorities
List, unless the Administrator, on a facility-by-facil-
ity basis and pursuant to an agreement with the
State concerned, makes a finding that a facility list-
ed on the National Priorities List is eligible to par-
ticipate in a State voluntary cleanup program meet-
ing the requirements of subsection (b);
(2) any facility for which the Governor of a
State has requested Environmental Protection Agen-
cy assistance to perform a response action;
(3) any facility owned or operated by a depart-
ment, agency, or instrumentality of the United
States; or
(4) a release or threatened release to the extent
that a response action is required pursuant to an ad-
ministrative order or judicial order or decree entered
into by the United States under any of the following
laws:
119
(A) The Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.).
(B) The Solid Waste Disposal Act (42
U.S.C. 6901 et seq.).
(C) The Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.).
(D) The Toxic Substances Control Act (15
U.S.C. 2601 et seq.).
(E) Title XIV of the Public Health Service
Act (commonly known as the Safe Drinking
Water Act) (42 U.S.C. 300f et seq.).
(d) AUTHORITY TO GATHER INFORMATION.—The
prohibition in subsection (a) shall not affect the authority
of the Administrator to carry out investigations, monitor-
ing, surveys, testing, or other information gathering au-
thorized under section 104(b) of the Comprehensive Envi-
ronmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9604(b)) at facilities where there may
be an imminent and substantial endangerment to human
health or the environment, but only for purposes of deter-
mining whether the facility qualifies for listing on the Na-
tional Priorities List pursuant to section 105 of that Act.
120
(e) PRIOR ACTIONS.—Nothing in this section shall
affect administrative or judicial action commenced prior
to the date of enactment of this section.
(f) PERMITS AND OTHER REQUIREMENTS.—No Fed-
eral permit or permit revision shall be required for re-
sponse actions conducted entirely onsite to respond to re-
leases that are subject to the prohibition under subsection
(a).
(g) DEFINITIONS.—For purposes of this section:
(1) VOLUNTARY
RESPONSE
PROGRAM.—The
term ‘‘voluntary response program’’ means a pro-
gram established by a State specifically to allow a
person to respond voluntarily to the release or
threatened release of hazardous substances at facili-
ties in the State.
(2) VOLUNTARY
RESPONSE
PLAN.—The term
‘‘voluntary response plan’’ means a plan for re-
sponding to the release or threatened release of haz-
ardous substances at a particular facility under a
State voluntary response program.
(h) ASSISTANCE
TO STATES.—The Administrator
shall provide technical, financial, and other assistance to
States to establish and enhance voluntary response pro-
grams. The Administrator shall encourage the States to
develop risk sharing pools, indemnity pools, or insurance
121
mechanisms to provide financing for response actions
under their voluntary response programs.
(i) EFFECT OF RESPONSE.—Performance of a vol-
untary response action pursuant to this section shall not
constitute an admission of liability under any Federal,
State, or local law or regulation or in any citizens suit
or other private action.
SEC. 304. INNOCENT LANDOWNERS.
(a) IN GENERAL.—Section 107 (42 U.S.C. 9607) is
further amended by adding at the end the following new
subsection:
‘‘(q) INNOCENT LANDOWNERS.—
‘‘(1) CONDUCT
OF
ENVIRONMENTAL
ASSESS-
MENT.— A person who has acquired real property
shall have made all appropriate inquiry within the
meaning of subparagraph (B) of section 101(35) if
he establishes that, within 180 days prior to the
time of acquisition, an environmental site assess-
ment of the real property was conducted which
meets the requirements of this subsection.
‘‘(2) DEFINITION OF ENVIRONMENTAL SITE AS-
SESSMENT.—For purposes of this subsection, the
term ‘environmental site assessment’ means an as-
sessment conducted in accordance with the stand-
ards set forth in the American Society for Testing
122
and Materials (ASTM) Standard E1527–94, titled
‘Standard Practice for Environmental Site Assess-
ments: Phase I Environmental Site Assessment
Process’ or with alternative standards issued by rule
by the Administrator or promulgated or developed
by others and designated by rule by the Adminis-
trator. Before issuing or designating alternative
standards, the Administrator shall first conduct a
study of commercial and industrial practices con-
cerning environmental site assessments in the trans-
fer of real property in the United States. Any such
standards issued or designated by the Administrator
shall also be deemed to constitute commercially rea-
sonable and generally accepted standards and prac-
tices for purposes of this paragraph. In issuing or
designating any such standards, the Administrator
shall consider requirements governing each of the
following:
‘‘(A) Interviews of owners, operators, and
occupants of the property to determine informa-
tion regarding the potential for contamination.
‘‘(B) Review of historical sources as nec-
essary to determine previous uses and occupan-
cies of the property since the property was first
developed. For purposes of this subclause, the
123
term ‘historical sources’ means any of the fol-
lowing, if they are reasonably ascertainable: re-
corded chain of title documents regarding the
real property, including all deeds, easements,
leases, restrictions, and covenants, aerial photo-
graphs, fire insurance maps, property tax files,
USGS 7.5 minutes topographic maps, local
street directories, building department records,
zoning/land use records, and any other sources
that identify past uses and occupancies of the
property.
‘‘(C) Determination of the existence of re-
corded environmental cleanup liens against the
real property which have arisen pursuant to
Federal, State, or local statutes.
‘‘(D) Review of reasonably ascertainable
Federal, State, and local government records of
sites or facilities that are likely to cause or con-
tribute to contamination at the real property,
including, as appropriate, investigation reports
for such sites or facilities; records of activities
likely to cause or contribute to contamination at
the real property, including landfill and other
disposal location records, underground storage
tank records, hazardous waste handler and gen-
124
erator records and spill reporting records; and
such other reasonably ascertainable Federal,
State, and local government environmental
records which could reflect incidents or activi-
ties which are likely to cause or contribute to
contamination at the real property.
‘‘(E) A visual site inspection of the real
property and all facilities and improvements on
the real property and a visual inspection of im-
mediately adjacent properties, including an in-
vestigation of any hazardous substance use,
storage, treatment, and disposal practices on
the property.
‘‘(F) Any specialized knowledge or experi-
ence on the part of the defendant.
‘‘(G) The relationship of the purchase
price 
to 
the 
value 
of 
the 
property 
if
uncontaminated.
‘‘(H) Commonly known or reasonably as-
certainable information about the property.
‘‘(I) The obviousness of the presence or
likely presence of contamination at the prop-
erty, and the ability to detect such contamina-
tion by appropriate investigation.
125
A record shall be considered to be ‘reasonably ascer-
tainable’ for purposes of this paragraph if a copy or
reasonable facsimile of the record is publicly avail-
able by request (within reasonable time and cost
constraints) and the record is practically reviewable.
‘‘(3) MAINTENANCE
OF
INFORMATION.—No
presumption shall arise under paragraph (1) unless
the defendant has maintained a compilation of the
information reviewed and gathered in the course of
the environmental site assessment.’’.
(b) CROSS REFERENCE.—Section 101(35)(B) (42
U.S.C. 9601(35)(B)) is amended by inserting after ‘‘all
appropriate inquiry’’ the following: ‘‘(as specified in sec-
tion 107(o))’’.
SEC. 305. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.
(a) LIABILITY.—Section 107 (42 U.S.C. 9607) is fur-
ther amended by adding at the end the following new sub-
sections:
‘‘(r) BONA FIDE PROSPECTIVE PURCHASER.—(1)
Notwithstanding paragraphs (1) through (4) of subsection
(a), a person who does not impede the performance of a
response action or natural resource restoration at a facil-
ity shall not be liable to the extent liability at such facility
is based solely on paragraph (1) of subsection (a) for a
126
release or threat of release from the facility, and the per-
son is a bona fide prospective purchaser of the facility.
‘‘(2) For purposes of this subsection, the term ‘bona
fide prospective purchaser’ means a person who acquires
ownership of a facility after the date of enactment of this
subsection, or a tenant of such a person, who can establish
each of the following by a preponderance of the evidence:
‘‘(A) All active disposal of hazardous substances
at the facility occurred before that person acquired
the facility.
‘‘(B) The person made all appropriate inquiry
into the previous ownership and uses of the facility
and its real property in accordance with generally
accepted commercial and customary standards and
practices. Standards described in subsection (q)(2)
(relating to innocent landowners) shall satisfy the
requirements of this subparagraph. In the case of
property for residential or other similar use, pur-
chased by a nongovernmental or noncommercial en-
tity, a site inspection and title search that reveal no
basis for further investigation satisfy the require-
ments of this subparagraph.
‘‘(C) The person provided all legally required
notices with respect to the discovery or release of
any hazardous substances at the facility.