I
106TH CONGRESS
1ST SESSION
H. R. 2940
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 to provide liability relief for small parties, innocent
landowners, and prospective purchasers.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 23, 1999
Mr. STUPAK introduced the following bill; which was referred to the Com-
mittee 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, Com-
pensation, and Liability Act of 1980 to provide liability
relief for small parties, innocent landowners, and pro-
spective purchasers.
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 ‘‘Common Sense Super-
fund Liability Relief Act of 1999’’.
SEC. 2. SMALL PARTY LIABILITY RELIEF UNDER SUPER-
FUND.
(a) LIABILITY EXEMPTION.—Section 107 of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9607) is amended
by adding at the end the following new subsection:
‘‘(o) SMALL PARTY LIABILITY RELIEF.—(1) Not-
withstanding 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 or vessel shall not be liable to the extent liability at
such facility or vessel is based solely on paragraph (3) or
(4) of subsection (a), and the person arranged for dis-
posal, treatment, or transport for disposal or treatment
of only municipal solid waste or sewage sludge owned or
possessed by such person, or accepted for transport for
disposal or treatment only municipal solid waste or sewage
sludge, and the person is—
‘‘(A) the owner, operator, or lessee of the resi-
dential property which is the source of the municipal
solid waste or sewage sludge;
‘‘(B) a small business; or
‘‘(C) a small non-profit organization.
‘‘(2) This subsection shall have no effect on the liabil-
ity of any other person.’’.
(b) SMALL BUSINESS DEFINED.—Section 101 of
such Act (42 U.S.C. 9601) is amended by adding at the
end the following new paragraph:
‘‘(39) SMALL BUSINESS.—The term ‘small busi-
ness’ refers to any business entity that employs no
more than 100 individuals and is a ‘small business
concern’ as defined under the Small Business Act
(15 U.S.C. 631 et seq.).’’.
SEC. 3. INNOCENT LANDOWNERS.
(a) ENVIRONMENTAL SITE ASSESSMENT.—Section
107 of the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 (42 U.S.C. 9607) is
further amended by adding at the end the following new
subsection:
‘‘(p) INNOCENT LANDOWNERS.—
‘‘(1) CONDUCT
OF
ENVIRONMENTAL
ASSESS-
MENT.—A person who has acquired real property
after April 15, 1994, shall have made all appropriate
inquiry within the meaning of subparagraph (B) of
section 101(35) only if such person establishes that,
within 180 days prior to the time of acquisition, an
environmental site assessment of the real property
was conducted which meets the requirements of
paragraph (2).
‘‘(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
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 title. In issuing or desig-
nating any such standards, the Administrator shall
consider requirements governing each of the fol-
lowing:
‘‘(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 subparagraph,
the term ‘historical sources’ means any of the
following, if they are reasonably ascertainable:
recorded 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-
‘‘(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.
If a copy or reasonable facsimile of a record is pub-
licly available by request (within reasonable time and
cost constraints) and the record is practically review-
able, the record shall be considered to be reasonably
ascertainable for purposes of this paragraph.
‘‘(3) APPROPRIATE
INQUIRY.—A person shall
not be treated as having made all appropriate in-
quiry under paragraph (1) unless—
‘‘(A) the person has maintained a compila-
tion of the information reviewed and gathered
in the course of the environmental site assess-
ment;
‘‘(B) the person exercised appropriate care
with respect to hazardous substances found at
the facility by taking reasonable steps to stop
on-going releases, prevent threatened future re-
leases of hazardous substances, and prevent or
limit human or natural resource exposure to
hazardous substances previously released into
the environment; and
‘‘(C) the person provides full cooperation,
assistance, and facility access to persons au-
thorized to conduct response actions or natural
resource restoration at the facility, including
the cooperation and access necessary for the in-
stallation, integrity, operation, and maintenance
of any complete or partial response action or
natural resource restoration at the facility.’’.
(b) EXCEPTION.—Section 107(b)(3)(a) of the Com-
prehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9606(b)(3)(a)) is amend-
ed by inserting ‘‘(except as provided in subsection (p))’’
after ‘‘exercised due care’’.
(c) CONFORMING AMENDMENTS.—Section 101(35)
of the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 (42 U.S.C. 9601(35))
is amended—
(1) in subparagraph (A), by striking ‘‘, unless
the real property’’ and inserting ‘‘. A defendant
owner or operator of a facility may only assert under
section 107(b)(3) that an act or ommission of a pre-
vious owner or operator of that facility did not occur
in connection with a contractual relationship if the
real property’’; and
(2) in subparagraph (B)—
(A) by inserting ‘‘(as specified in section
107(p))’’ after ‘‘all appropriate inquiry’’; and
(B) by striking ‘‘For purposes of the pre-
ceding sentence’’ and inserting ‘‘For purposes
of the application of the preceding sentence to
acquisitions occurring on or before April 15,
1994,’’.
SEC. 4. LIMITATIONS ON LIABILITY FOR RESPONSE COSTS
FOR PROSPECTIVE PURCHASERS.
(a) LIMITATIONS ON LIABILITY.—Section 107 of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9607) is further
amended by adding at the end the following new sub-
section:
‘‘(q) LIMITATIONS ON LIABILITY FOR PROSPECTIVE
PURCHASERS.—To the extent the liability of a person,
with respect to a release or the threat of a release from
a facility, is based solely on subsection (a)(1), the person
shall not be liable under this Act if the person—
‘‘(1) is a bona fide prospective purchaser of the
facility or an operator of a facility owned by such a
bona fide prospective purchaser;
‘‘(2) does not impede the performance of any
response action or natural resource restoration at a
facility;
‘‘(3) provided all legally required notices with
respect to the discovery or release of any hazardous
substances at the facility;
‘‘(4) exercised appropriate care with respect to
hazardous substances found at the facility by taking
reasonable steps to—
‘‘(A) stop ongoing releases;
‘‘(B) prevent threatened future releases of
hazardous substances; and
‘‘(C) prevent or limit human or natural re-
source exposure to hazardous substances pre-
viously released into the environment;
‘‘(5) provides full cooperation, assistance, and
facility access to such persons as are authorized to
conduct response actions at the facility, including
the cooperation and access necessary for the installa-
tion, integrity, operation, and maintenance of any
complete or partial response action at the facility;
and
‘‘(6) is not liable, or is not affiliated with any
other person that is liable, for response costs at the
facility, through any direct or indirect familial rela-
tionship, or any contractual, corporate, or financial
relationship other than that created by the instru-
ments by which title to the facility is conveyed or fi-
nanced.’’.
(b) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—Section 107 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (as
amended by subsection (a)) is amended by adding after
subsection (q) the following new subsection:
‘‘(r) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—
‘‘(1) IN GENERAL.—In any case in which the
United States has incurred unrecovered costs of re-
sponse not inconsistent with the National Contin-
gency Plan at a facility for which an owner of the
facility is not liable by reason of subsection (q), and
the conditions described in paragraph (3) are met,
the United States shall have a lien on the facility,
or may obtain, from the appropriate responsible
party or parties, a lien on other property or other
assurances of payment satisfactory to the Adminis-
trator, for the unrecovered costs.
‘‘(2) AMOUNT; DURATION.—The lien—
‘‘(A) shall be for an amount not to exceed
the lesser of the amount of the United States
costs of response not inconsistent with the Na-
tional Contingency Plan or the amount of the
increase in fair market value of the property at-
tributable to the response action at the time of
a subsequent sale or other disposition of the
property;
‘‘(B) shall arise at the time costs are first
incurred by the United States with respect to a
response action at the facility;
‘‘(C) shall be subject to the requirements
for notice and validity specified in subsection
(l)(3); and
‘‘(D) shall continue until the earlier of sat-
isfaction of the lien or recovery of all United
States costs of response not inconsistent with
the National Contingency Plan incurred at the
facility, notwithstanding any statute of limita-
tions provided in section 113.
Nothing in this subsection prevents the United
States and a purchaser from entering into a settle-
ment at any time that extinguishes a lien under this
subsection.
‘‘(3) CONDITIONS.—The conditions referred to
in paragraph (1) are the following:
‘‘(A) RESPONSE
ACTION.—An action for
which the United States has incurred unre-
covered costs of response not inconsistent with
the National Contingency Plan is carried out at
the facility.
‘‘(B) FAIR MARKET VALUE.—The response
action increases the fair market value of the fa-
cility.’’.
(c) DEFINITION OF BONA FIDE PROSPECTIVE PUR-
CHASER.—Section 101 of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601) is amended by adding at the end
the following:
‘‘(40) BONA FIDE PROSPECTIVE PURCHASER.—
The term ‘bona fide prospective purchaser’ means a
person who acquires ownership of a facility after the
date of enactment of the Common Sense Superfund
Liability Relief Act of 1999 who can establish each
of the following by a preponderance of the evidence:
‘‘(A) DISPOSAL PRIOR TO ACQUISITION.—
All active disposal of hazardous substances at
the facility occurred before the person acquired
the facility.
‘‘(B) INQUIRY.—
‘‘(i) IN GENERAL.—The person made
all appropriate inquiry as provided in sec-
tion 101(35)(B) into the previous owner-
ship and uses of the facility in accordance
with generally accepted good commercial
and customary standards and practices.
‘‘(ii) STANDARDS.—The ASTM stand-
ards described in section 107(p)(2) or the
alternative standards issued or designated
by the President pursuant to that section
shall satisfy the requirements of this sub-
paragraph.
‘‘(iii) RESIDENTIAL
PROPERTY.—In
the case of property in residential or other
similar use at the time of purchase by a
nongovernmental or noncommercial entity,
a site inspection and title search that re-
veal no basis for further investigation shall
satisfy the requirements of this subpara-
graph.’’.
‘‘(C) NOTICES.—The person provided all
legally required notices with respect to the dis-
covery or release of any hazardous substances
at the facility.
‘‘(D) CARE.—The person exercised appro-
priate care with respect to hazardous sub-
stances found at the facility by taking reason-
able steps to—
‘‘(i) stop ongoing releases;
‘‘(ii) prevent threatened future re-
leases of hazardous substances; and
‘‘(iii) prevent or limit human or nat-
ural resource exposure to hazardous sub-
stances previously released into the envi-
ronment.
‘‘(E) COOPERATION, ASSISTANCE, AND AC-
CESS.—The person provides full cooperation,
assistance, and facility access to such persons
as are authorized to conduct response actions at
the facility, including the cooperation and ac-
cess necessary for the installation, integrity, op-
eration, and maintenance of any complete or
partial response action at the facility.
‘‘(F) RELATIONSHIP.—The person is not
liable, or is not affiliated with any other person
that is potentially liable, for response costs at
the facility, through any direct or indirect fa-
milial relationship, or any contractual, cor-
porate, or financial relationship other than that
created by the instruments by which title to the
facility is conveyed or financed.’’.
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