[House Report 107-70]
[From the U.S. Government Publishing Office]
107th Congress Rept. 107-70
HOUSE OF REPRESENTATIVES
1st Session Part 2
======================================================================
SMALL BUSINESS LIABILITY PROTECTION ACT
_______
May 21, 2001.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Transportation and
Infrastructure, submitted the following
R E P O R T
[To accompany H.R. 1831]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 1831) to provide certain relief for
small businesses from liability under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
Summary and Purpose
H.R. 1831, the ``Small Business Liability Protection Act''
amends the Superfund statute to provide an exemption from
Superfund liability for ``de micromis'' parties and households,
small businesses, and small nonprofit organizations that sent
only ``municipal solid waste'' to a Superfund site.
Background and Need for Legislation
Under the Comprehensive Environmental Response,
Compensation and Liability Act (commonly referred to as
Superfund), persons can be held liable for the costs of
cleaning up a Superfund site if they sent any material
containing hazardous substances to that site. As a result,
under Superfund, a person can be held liable for cleanup costs
even if they sent only a miniscule amount of waste to the site
or if the hazardous substances they sent to the site were
contained in ordinary household garbage.
Too often, small volume contributors of wastes at a
Superfund site, and households, small businesses, and small
nonprofit organizations that sent ordinary trash to a Superfund
site have been sued to contribute to Superfund cleanups. Absent
legislation, the only way to protect these entities from
lawsuits is for the Environmental Protection Agency (EPA) to
first sue, and then reach a settlement, with each party on a
case-by-case basis. Under its Superfund program administrative
reforms, EPA has tried to get smaller parties out of Superfund
litigation through de minimis settlements. However, this
approach can consume a great deal of agency resources and can
cause these small parties to incur attorneys' fees. In
addition, many small parties do not understand that the legal
process to obtain protection from further lawsuits, a de
minimis settlement, requires that a lawsuit be filed that names
them as a party. In testimony before the Water Resources and
Environment Subcommittee in the 106th Congress, a
representative of the National Federation of Independent
Business described this process, as utilized at the Quincy
Landfill Superfund Site, as an ``ongoing nightmare for small
businesses, their families, friends, and neighbors in Quincy,
Illinois.''
This legislation addresses this matter by providing
statutory exemptions from liability for certain parties, and by
adjusting the burden of proof in actions against these parties,
as described below in the section-by-section analysis of the
bill.
Discussion of Committee Bill and Section-by-Section Analysis
Section 1. Short title
Section 1 of the bill specifies that the short title is the
``Small Business Liability Protection Act.''
Section 2. Small business liability relief
Section 2 of the bill makes amendments to section 107 and
section 122 of the Comprehensive Environmental Response,
Compensation, and Liability Act.
(a) Exemptions.--Subsection (a) of the bill amends section
107 of the Comprehensive Environmental Response, Compensation,
and Liability Act by adding a new subsection (o) ``De Micromis
Exemption,'' and a new subsection (p) ``Municipal Solid Waste
Exemption.''
New subsection (o) exempts persons from Superfund liability
for generating or transporting only a ``de micromis'' volume of
waste disposed of at a facility on the National Priorities List
(a Superfund site).
Paragraph (1) of new subsection (o) specifies that a person
is not liable for response costs for generating or transporting
wastes that are disposed of at a Superfund site under section
107(a)(3) or section 107(a)(4) if a person can demonstrate that
the person sent only 110 gallons (the equivalent of two drums
of liquid waste) or 200 pounds of material containing hazardous
substances to the facility. This exemption only applies to
activities that occurred before April 1, 2001.
Paragraph (2)(A)(i) specifies that the exemption in
paragraph (1) does not apply if the President determines that a
party's wastes have contributed or could contribute
significantly, either individually or in the aggregate, to
response costs or natural resource damages with respect to the
facility. The Committee intends that the phrase ``in the
aggregate'' refer to all of the material containing hazardous
substances that is generated and sent to the facility by the
party that is otherwise eligible for the ``de micromis''
exemption. The Committee does not intend that the phrase ``in
the aggregate'' be interpreted to encompass all of the material
containing hazardous substances disposed of at the facility by
different parties.
Paragraph (2)(A)(ii) specifies that the exemption in
paragraph (1) does not apply if the President determines that a
party has failed to comply with an information request or
subpoena issued by the President under the Comprehensive
Environmental Response, Compensation, and Liability Act. The
Committee intends that this determination lie solely within the
discretion of the President and that the President will
exercise this discretion as appropriate to the facts and
circumstances presented in each case.
Paragraph (2)(A)(iii) also specifies that the exemption in
paragraph (1) does not apply if the President determines that a
party has impeded or is impeding the response action or natural
resource restoration with respect to the facility.
Finally, paragraph (2)(B) specifies that the exemption in
paragraph (1) does not apply if a party's waste disposal
activities are the basis for a criminal conviction that has not
been vitiated on appeal or otherwise.
Paragraph (3) of new subsection (o) provides that any
determinations made by the President under paragraph (2)(A) are
not subject to judicial review.
Paragraph (4) of new subsection (o) specifies where the
burden of proof lies in third-party contribution actions. Under
paragraph (1), the burden of demonstrating that a party is
eligible for an exemption generally falls on the party seeking
the exemption, where the plaintiff is a Federal, State, or
local government. Under paragraph (4) the burden shall be on
all other plaintiffs in contribution actions to demonstrate
that a party is not eligible for the exemption.
New subsection (p) exempts certain persons from Superfund
liability for generating ``municipal solid waste'' disposed of
at a Superfund site.
Paragraph (1) of new subsection (p) specifies that a person
is not liable for response costs under section 107(a)(3) for
generating municipal solid waste disposed of at a Superfund
site if the person can demonstrate that the person is a
household (and the waste came from the household), a business
with not more than 100 employees (and the waste came from the
small business), or a nonprofit organization with not more than
100 employees (at the location that generated the waste).
Paragraph (2)(A) of new subsection (p) specifies that the
exemption in paragraph (1) does not apply if the President
determines that a party's municipal solid waste has contributed
or could contribute significantly, either individually or in
the aggregate, to response costs or natural resource damages
with respect to the facility. The Committee intends that the
phrase ``in the aggregate'' refer to all of the municipal solid
waste that is generated and sent to the facility by the party
that is otherwise eligible for the ``municipal solid waste''
exemption. The Committee does not intend that the phrase ``in
the aggregate'' be interpreted to encompass all of the
municipal solid waste contained in a landfill disposed of by
different parties.
Paragraph (2)(B) specifies that the exemption in paragraph
(1) does not apply if the President determines that a party has
failed to comply with an information request or subpoena issued
by the President under the Comprehensive Environmental
Response, Compensation, and Liability Act. The Committee
intends that this determination lie solely within the
discretion of the President and that the President will
exercise this discretion as appropriate to the facts and
circumstances presented in each case.
Paragraph (2)(C) specifies that the exemption in paragraph
(1) does not apply if the President determines that a party has
impeded or is impeding the response action or natural resource
restoration with respect to the facility.
Paragraph (3) of new subsection (p) provides that any
determinations made by the President under paragraph (2) are
not subject to judicial review.
Paragraph (4) of new subsection (p) defines ``municipal
solid waste'' as waste material that is generated by a
household or waste that is generated by a commercial,
industrial, or institutional entity that is essentially the
same as household waste, is collected and disposed as part of
normal municipal solid waste collection services, and contains
a relative quantity of hazardous substances no greater than the
relative quantity of hazardous substances contained in waste
material generated by a typical single-family household. The
relative quantity refers to the percentage of hazardous
substances to total municipal solid waste. The Committee
intends that the percentage of hazardous substances in the
municipal solid waste for commercial, institutional and
industrial entities that qualify for this exemption should be
no greater than the percentage of hazardous substances in
municipal solid waste that a typical single-family household
generates and sends to a landfill.
Paragraph (5) of new subsection (p) specifies where the
burden of proof lies for certain actions. Under paragraph (1),
the burden of demonstrating that a party is eligible for the
exemption generally falls on the party seeking the exemption.
However, paragraph (5) specifies when this general rule does
not apply. First, it does not apply to actions for response
costs brought under section 107 or actions for contribution to
response costs under 113 relating to wastes disposed of on or
after April 1, 2001, if a party (other than a Federal, State,
or local government) brings the action. Second, it does not
apply to any action for response costs under section 107 or
action for contribution to response costs under section 113
relating to wastes disposed of before April 1, 2001. In these
actions, the plaintiff has the burden of demonstrating that a
defendant is not eligible for the municipal solid waste
exemption.
Paragraph (6) of new subsection (p) prohibits contribution
actions, other than actions brought by a Federal, State, or
local government, against households for municipal solid waste
disposal.
Paragraph (7) of new subsection (p) specifies that
nongovernmental plaintiffs must pay the attorneys' fees and
expert witness fees if they bring a contribution action against
a person who is not liable for contribution based on the
``municipal solid waste'' exemption in new subsection (p) or
the ``de micromis'' exemption in new subsection (o).
(b) Expedited Settlement.--Subsection (b) of the bill
amends section 122(g) of the Comprehensive Environmental
Response, Compensation, and Liability Act to add provisions
concerning expedited settlements based on a limited ability to
pay.
Section 3. Effect on concluded actions
Section (3) of the bill provides that the amendments made
by this Act shall not apply to or affect any preexisting
settlement or administrative order.
The Committee does not intend that the Small Business
Liability Protection Act give rise to negative implications
with respect to the Agency's existing settlement authorities
for potentially responsible parties that are ineligible for the
Act's exemptions. In particular, although the ``de micromis''
and ``municipal solid waste'' exemptions do not apply at sites
that are not on the National Priorities List, the Committee
does not intend to affect the authority to reach settlements
with other potentially responsible parties under the Act.
Hearings
The Water Resources and Environment Subcommittee held
hearings on proposals to provide Superfund liability relief for
small businesses as part of broader Superfund reform proposals
in the 104th, 105th and 106th Congresses. On October 29, 1997,
the Subcommittee received testimony regarding third- and
fourth-party contribution actions brought against small
businesses at the Keystone Landfill Superfund site in
Pennsylvania. On May 12, 1999, the Subcommittee received
testimony regarding direct EPA actions against small businesses
at the Quincy Landfill Superfund site in Illinois.
Committee Consideration
On May 16, 2001, the Committee met in open session and
ordered the bill reported to the House by unanimous voice vote.
Rollcall Votes
Clause 3(b) of rule XIII of the House of Representatives
requires each Committee report to include the total number of
votes cast for and against on each rollcall vote on a motion to
report and on any amendment offered to the measure or matter,
and the names of those members voting for and against. There
were no recorded votes taken in connection with ordering H.R.
1831 reported. A motion to order H.R. 1831 reported to the
House, without amendment, was unanimously agreed to by voice
vote.
Committee Oversight Findings
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
Cost of Legislation
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to the filing of the
report and is included in the report. Such a cost estimate is
included in this report.
Compliance With House Rule XIII
1. With respect to the requirement of clause 3(c)(2) of
rule XIII of the Rules of the House of Representatives, and
308(a) of the Congressional Budget Act of 1974, the Committee
references the report of the Congressional Budget Office
included below.
2. With respect to the requirement of clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, the
Committee advises that H.R. 1831 contains no measure that
authorizes funding, so no statement of general performance and
objectives for which any measure authorizes funding is
required.
3. With respect to the requirement of clause 3(c)(3) of
rule XIII of the Rules of the House of Representatives and
section 402 of the Congressional Budget Act of 1974, the
Committee has received the following cost estimate for H.R.
1831 from the Director of the Congressional Budget Office.
U.S. Congress
Congressional Budget Office,
Washington, DC, May 17, 2001.
Hon. Don Young,
Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1831, the Small
Business Liability Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Susanne S.
Mehlman (for federal costs), Victoria Heid Hall (for the state
and local impact), and Lauren Marks (for the private-sector
impact).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
congressional budget office cost estimate
H.R. 1831--Small Business Liability Protection Act
Summary: H.R. 1831 would establish two new exemptions from
liability under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, commonly
known as the Superfund Act, which governs the cleanup of sites
contaminated with hazardous substances. A ``de micromis''
liability exemption would apply to those who generate or
transport very small volumes of waste; the second new exemption
would apply to certain small businesses and organizations that
dispose of municipal solid waste. A ``de minimus'' settlement
under CERCLA refers to a settlement between the Environmental
Protection Agency (EPA) and parties who are responsible for
only a comparatively small amount and comparatively low
toxicity of hazardous substances at a Superfund site. ``De
micromis'' settlements are a subset of de minimus settlements
that may be available to parties who are responsible for a
miniuscule amount of waste at a Superfund site.
CBO estimates that enacting H.R. 1831 would result in no
significant impact on the federal budget. Because enactment of
this bill could affect offsetting receipts (a form of direct
spending), pay-as-you-go procedures would apply, but CBS
estimates that any such effects would not be significant.
H.R. 1831 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Major provisions: Under the de micromis exemption that
would be established under the bill, those who generate or
transport less than 200 pounds of waste, or 110 gallons of
material containing hazardous waste disposed of at a National
Priorities List (NPL) site before April 1, 2001, would be
released from Superfund liability. This exemption would not
apply to those whose waste could significantly contribute to
cleanup costs or natural resource damages, those who fail to
comply with government requests or subpoenas for information,
those who impede cleanup work at the site, or anyone who has
been convicted of a criminal violation related to waste
disposal activities at the site.
Under the municipal solid waste exemption that would be
established under the bill, households, and businesses or
nonprofit organizations with not more than 100 employees would
be released from Superfund liability for generating municipal
solid waste (which includes household waste and other waste
containing little or no hazardous substances) disposed of at a
NPL site. This exemption would not apply to those whose waste
could significantly contribute to cleanup costs or natural
resource damages, those who fail to comply with government
requests or subpoenas for information, or those who impede
cleanup work at the site. Unlike the de micromis exemption,
this exemption would apply regardless of when the waste was
generated.
Estimated cost to the Federal Government: The Environmental
Protection Agency's enforcement program attempts to recover any
costs the agency incurs at Superfund cleanup projects that are
the responsibility of private parties (known as potentially
responsible parties, or PRPs). Under H.R. 1831, CBO estimates
that such future cost recoveries could be reduced because the
Superfund liability of some PRPs would be eliminated. PRPs who
have generated or transported small volumes of waste or who
have generated municipal solid waste, however, are rarely
pursued to recover cleanup expenses under EPA's current
enforcement practices. EPA does not consider the pursuit of
these types of PRPs to be consistent with the intent of CERCLA,
nor a cost-effective use of government enforcement resources.
Based on information from EPA, CBO estimates that only a
negligible amount of funds are recovered by EPA each year from
generators of municipal solid waste who seek settlements with
EPA under CERCLA. Under EPA's current policy, such PRPs seeking
settlements with EPA can pay $5.30 per ton of municipal solid
waste disposed of at the site to the agency and be relieved of
any future liability. Enacting this bill would eliminate the
need for some PRPs to seek such a settlement. However, because
there are so few of these settlements and because EPA does not
pursue the recovery of costs from PRPs who generate or
transport very small amounts of waste disposed of at a site,
CBO estimates that any reduction in the amount of funds
recovered for the Treasury would be less than $500,000 each
year. Furthermore, to the extent EPA could recover the exempted
PRP's share of the costs from any other remaining PRPs at a
particular site, there would be no reduction in costs
recovered.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. Enacting
H.R. 1831 could affect direct spending, however, CBO estimates
any additional costs would be negligible.
Estimated impact on state, local, and tribal governments:
H.R. 1831 contains no intergovernmental mandates as defined in
UMRA and would have no significant impact on the budgets of
state, local, or tribal governments. The bill would amend
current law concerning the liability under CERCLA of persons
generating or transporting small amounts of waste. These
changes in liability are not preemptions of state law. They
could make it more difficult for any states that currently rely
on CERCLA to recover costs and damages under their own cleanup
programs from parties whose liability now would be eliminated
by the bill. However, these changes could benefit state, local,
and tribal governments if their liability would be eliminated.
On balance, because EPA's current policy under CERCLA is not to
pursue the small parties affected by this bill, such effects
would not be significant.
Estimated impact on the private sector: This bill contains
no new private-sector mandates as defined in UMRA.
Previous CBO estimate: On May 17, 2001, CBO transmitted a
cost estimate for H.R. 1831, the Small Business Liability
Protection Act, as ordered reported by the House Committee on
Energy and Commerce on May 17, 2001. The two versions of H.R.
1831 are identical, as are the cost estimates.
Estimate prepared by: Federal Costs: Susanne S. Mehlman.
Impact on State, Local, and Tribal Governments: Victoria Heid
Hall. Impact on the Private Sector: Lauren Marks.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause (3)(d)(1) of rule XIII of the Rules of
the House of Representatives, committee reports on a bill or
joint resolution of a public character shall include a
statement citing the specific powers granted to the Congress in
the Constitution to enact the measure. The Committee on
Transportation and Infrastructure finds that Congress has the
authority to enact this measure pursuant to its powers granted
under article I, section 8 of the Constitution.
Federal Mandates Statement
The Committee adopts as its own the estimate of federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act. (Public Law 104-4.)
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to the Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act. (Public Law
104-1.)
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980
* * * * * * *
TITLE I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
* * * * * * *
liability
Sec. 107. (a) * * *
* * * * * * *
(o) De Micromis Exemption.--
(1) In general.--Except as provided in paragraph (2),
a person shall not be liable, with respect to response
costs at a facility on the National Priorities List,
under this Act if liability is based solely on
paragraph (3) or (4) of subsection (a), and the person,
except as provided in paragraph (4) of this subsection,
can demonstrate that--
(A) the total amount of the material
containing hazardous substances that the person
arranged for disposal or treatment of, arranged
with a transporter for transport for disposal
or treatment of, or accepted for transport for
disposal or treatment, at the facility was less
than 110 gallons of liquid materials or less
than 200 pounds of solid materials (or such
greater or lesser amounts as the Administrator
may determine by regulation); and
(B) all or part of the disposal, treatment,
or transport concerned occurred before April 1,
2001.
(2) Exceptions.--Paragraph (1) shall not apply in a
case in which--
(A) the President determines that--
(i) the materials containing
hazardous substances referred to in
paragraph (1) have contributed
significantly or could contribute
significantly, either individually or
in the aggregate, to the cost of the
response action or natural resource
restoration with respect to the
facility; or
(ii) the person has failed to comply
with an information request or
administrative subpoena issued by the
President under this Act or has impeded
or is impeding, through action or
inaction, the performance of a response
action or natural resource restoration
with respect to the facility; or
(B) a person has been convicted of a criminal
violation for the conduct to which the
exemption would apply, and that conviction has
not been vitiated on appeal or otherwise.
(3) No judicial review.--A determination by the
President under paragraph (2)(A) shall not be subject
to judicial review.
(4) Nongovernmental third-party contribution
actions.--In the case of a contribution action, with
respect to response costs at a facility on the National
Priorities List, brought by a party, other than a
Federal, State, or local government, under this Act,
the burden of proof shall be on the party bringing the
action to demonstrate that the conditions described in
paragraph (1)(A) and (B) of this subsection are not
met.
(p) Municipal Solid Waste Exemption.--
(1) In general.--Except as provided in paragraph (2)
of this subsection, a person shall not be liable, with
respect to response costs at a facility on the National
Priorities List, under paragraph (3) of subsection (a)
for municipal solid waste disposed of at a facility if
the person, except as provided in paragraph (5) of this
subsection, can demonstrate that the person is--
(A) an owner, operator, or lessee of
residential property from which all of the
person's municipal solid waste was generated
with respect to the facility;
(B) a business entity (including a parent,
subsidiary, or affiliate of the entity) that,
during its 3 taxable years preceding the date
of transmittal of written notification from the
President of its potential liability under this
section, employed on average not more than 100
full-time individuals, or the equivalent
thereof, and that is a small business concern
(within the meaning of the Small Business Act
(15 U.S.C. 631 et seq.)) from which was
generated all of the municipal solid waste
attributable to the entity with respect to the
facility; or
(C) an organization described in section
501(c)(3) of the Internal Revenue Code of 1986
and exempt from tax under section 501(a) of
such Code that, during its taxable year
preceding the date of transmittal of written
notification from the President of its
potential liability under this section,
employed not more than 100 paid individuals at
the location from which was generated all of
the municipal solid waste attributable to the
organization with respect to the facility.
For purposes of this subsection, the term ``affiliate''
has the meaning of that term provided in the definition
of ``small business concern'' in regulations
promulgated by the Small Business Administration in
accordance with the Small Business Act (15 U.S.C. 631
et seq.).
(2) Exception.--Paragraph (1) shall not apply in a
case in which the President determines that--
(A) the municipal solid waste referred to in
paragraph (1) has contributed significantly or
could contribute significantly, either
individually or in the aggregate, to the costof
the response action or natural resource restoration with respect to the
facility;
(B) the person has failed to comply with an
information request or administrative subpoena
issued by the President under this Act; or
(C) the person has impeded or is impeding,
through action or inaction, the performance of
a response action or natural resource
restoration with respect to the facility.
(3) No judicial review.--A determination by the
President under paragraph (2) shall not be subject to
judicial review.
(4) Definition of municipal solid waste.--
(A) In general.--For purposes of this
subsection, the term ``municipal solid waste''
means waste material--
(i) generated by a household
(including a single or multifamily
residence); and
(ii) generated by a commercial,
industrial, or institutional entity, to
the extent that the waste material--
(I) is essentially the same
as waste normally generated by
a household;
(II) is collected and
disposed of with other
municipal solid waste as part
of normal municipal solid waste
collection services; and
(III) contains a relative
quantity of hazardous
substances no greater than the
relative quantity of hazardous
substances contained in waste
material generated by a typical
single-family household.
(B) Examples.--Examples of municipal solid
waste under subparagraph (A) include food and
yard waste, paper, clothing, appliances,
consumer product packaging, disposable diapers,
office supplies, cosmetics, glass and metal
food containers, elementary or secondary school
science laboratory waste, and household
hazardous waste.
(C) Exclusions.--The term ``municipal solid
waste'' does not include--
(i) combustion ash generated by
resource recovery facilities or
municipal incinerators; or
(ii) waste material from
manufacturing or processing operations
(including pollution control
operations) that is not essentially the
same as waste normally generated by
households.
(5) Burden of proof.--In the case of an action, with
respect to response costs at a facility on the National
Priorities List, brought under section 107 or 113 by--
(A) a party, other than a Federal, State, or
local government, with respect to municipal
solid waste disposed of on or after April 1,
2001; or
(B) any party with respect to municipal solid
waste disposed of before April 1, 2001, the
burden of proof shall be on the party bringing
the action to demonstrate that the conditions
described in paragraphs (1) and (4) for
exemption for entities and organizations
described in paragraph (1)(B) and (C) are not
met.
(6) Certain actions not permitted.--No contribution
action may be brought by a party, other than a Federal,
State, or local government, under this Act with respect
to circumstances described in paragraph (1)(A).
(7) Costs and fees.--A nongovernmental entity that
commences, after the date of the enactment of this
subsection, a contribution action under this Act shall
be liable to the defendant for all reasonable costs of
defending the action, including all reasonable
attorney's fees and expert witness fees, if the
defendant is not liable for contribution based on an
exemption under this subsection or subsection (o).
* * * * * * *
SEC. 122. SETTLEMENTS.
(a) * * *
* * * * * * *
(g) De Minimis Settlements.--
(1) * * *
* * * * * * *
(7) Reduction in settlement amount based on limited
ability to pay.--
(A) In general.--The condition for settlement
under this paragraph is that the potentially
responsible party is a person who demonstrates
to the President an inability or a limited
ability to pay response costs.
(B) Considerations.--In determining whether
or not a demonstration is made under
subparagraph (A) by a person, the President
shall take into consideration the ability of
the person to pay response costs and still
maintain its basic business operations,
including consideration of the overall
financial condition of the person and
demonstrable constraints on the ability of the
person to raise revenues.
(C) Information.--A person requesting
settlement under this paragraph shall promptly
provide the President with all relevant
information needed to determine the ability of
the person to pay response costs.
(D) Alternative payment methods.--If the
President determines that a person is unable to
pay its total settlement amount at the time of
settlement, the President shall consider such
alternative payment methods as may be necessary
or appropriate.
(8) Additional conditions for expedited
settlements.--
(A) Waiver of claims.--The President shall
require, as a condition for settlement under
this subsection, that a potentially responsible
party waive all of the claims (including a
claim for contribution under this Act) that the
party may have against other potentially
responsible parties for response costs incurred
with respect to the facility, unless the
President determines that requiring a waiver
would be unjust.
(B) Failure to comply.--The President may
decline to offer a settlement to a potentially
responsible party under this subsection if the
President determines that the potentially
responsible party has failed to comply with any
request for access or information or an
administrative subpoena issued by the President
under this Act or has impeded or is impeding,
through action or inaction, the performance of
a response action with respect to the facility.
(C) Responsibility to provide information and
access.--A potentially responsible party that
enters into a settlement under this subsection
shall not be relieved of the responsibility to
provide any information or access requested in
accordance with subsection (e)(3)(B) or section
104(e).
(9) Basis of determination.--If the President
determines that a potentially responsible party is not
eligible for settlement under this subsection, the
President shall provide the reasons for the
determination in writing to the potentially responsible
party that requested a settlement under this
subsection.
(10) Notification.--As soon as practicable after
receipt of sufficient information to make a
determination, the President shall notify any person
that the President determines is eligible under
paragraph (1) of the person's eligibility for an
expedited settlement.
(11) No judicial review.--A determination by the
President under paragraph (7), (8), (9), or (10) shall
not be subject to judicial review.
(12) Notice of settlement.--After a settlement under
this subsection becomes final with respect to a
facility, the President shall promptly notify
potentially responsible parties at the facility that
have not resolved their liability to the United States
of the settlement.
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