[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 965 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 965

 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 SENATE OF THE UNITED STATES

                May 13 (legislative day, April 19), 1993

Mr. Lautenberg (for himself, Mr. Mitchell, Mrs. Boxer, Mrs. Feinstein, 
  Mr. Kennedy, Mr. Kerry, Mr. Kohl, Mr. Sarbanes, Mr. Simon, and Mr. 
  Wellstone) introduced the following bill; which was read twice and 
       referred to the Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
 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.

    Be it enacted by the Senate and House of Representatives 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 Congress 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 substances that are 
        causing threats to human health and the environment at 
        Superfund sites were produced 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 mandates imposed by 
        the Federal and State governments, including some related to 
        environmental protection; 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 services 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, including single and 
        multiple residences, and hotels and motels. The term also 
        includes waste materials generated by commercial, 
        institutional, and industrial sources (A) when such waste 
        materials are essentially 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 generated, 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, office supplies, cosmetics, 
        glass and metal food containers, school science laboratory 
        waste, and household hazardous waste (such as painting, 
        cleaning, gardening, and automotive supplies). For the purposes 
        of this Act, the term `municipal solid waste' does not include 
        combustion ash generated by resource recovery facilities or 
        municipal incinerators, or waste from manufacturing or 
        processing (including 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 sewage, or other waste waters 
        at or by a publicly-owned treatment works.
            ``(41) The term `municipality' means any political 
        subdivision of a State and may include cities, counties, 
        villages, towns, townships, boroughs, parishes, schools, school 
        districts, sanitation districts, water districts, and other 
        local governmental entities. The term also includes any natural 
        person acting in his or her official capacity as an official, 
        employee, 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 subsections 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 generation, 
transportation, or arrangement for the transportation, treatment, or 
disposal of municipal solid waste or sewage sludge.
    ``(n) Contribution Actions for Municipal Owners and Operators.--No 
eligible municipality as defined 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 municipality 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 subsections 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 liability under this Act, for the generation, 
        transportation, or arrangement for the transportation, 
        treatment, 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 substances other than 
        municipal solid waste or sewage sludge is covered by this 
        subsection to the extent that the person is liable for the 
        generation, transportation, or arrangement for the 
        transportation, treatment, or disposal of municipal solid waste 
        or sewage sludge.
            ``(2) Negotiation of settlements; moratorium.--Eligible 
        persons under this subsection may offer to settle their 
        potential liability with the President by stating in writing 
        their ability and willingness 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, 
        unless the President determines that the eligible person'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 liability 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 offers under 
        this subsection within 180 days after receiving 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 further 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, transportation, 
                or arrangement for the transportation, treatment, or 
                disposal of municipal solid waste or sewage sludge a 
                combined total of no more than 4 percent 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 4 percent portion of response costs 
                described in subparagraph (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 beneficial reuse of 
                sewage sludge through land application when the basis 
                of liability arises from sewage sludge generated 36 
                months after the date of enactment of this subsection 
                or thereafter; and
                    ``(F) be reached even in the event that an eligible 
                person may be liable under paragraph (1) or (2) of 
                section 107(a) or for substances other than municipal 
                solid waste or sewage sludge.
            ``(5) Covenant not to sue.--The President may provide a 
        covenant not to sue with respect to the facility concerned to 
        any person who has entered into a settlement under this 
        subsection unless such a covenant would be inconsistent with 
        the public interest as determined under subsection (f).
            ``(6) Effect of agreement.--A person that has resolved his 
        or her 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 
        matters addressed in the settlement. Such settlement does not 
        discharge any of the other potentially responsible 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.
            ``(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 administrative law shall govern whether any 
        supplemental materials may be considered by the court. In 
        considering 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 subsection 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, eligible persons who are 
municipalities or operators of publicly owned treatment works may 
assert the provisions of subsection (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 generated 36 
        months or later after the date of enactment 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 includes--
                    ``(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 identifies 
                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 generators under 
                section 3001(d) of the Solid Waste Disposal Act (42 
                U.S.C. 6921(d)), with an intended goal of collecting 
                wastes from 20 percent of such generators doing 
                business within the jurisdiction of the municipality; 
                and
                    ``(D) a comprehensive plan, which may include 
                regional compacts or joint ventures, that outlines how 
                the program will be accomplished.
            ``(4) To satisfy the criterion of having a qualified 
        household hazardous waste collection program in operation, a 
        municipality may operate its own program or may certify that 
        other persons are, jointly 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 
        businesses, other municipalities, and States.
            ``(5) A person that operates a `qualified household 
        hazardous waste collection program' and collects 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 hazardous 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 collections, or shall prohibit a 
        person from refusing to accept 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 treatment 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 noncompliance do not render a household hazardous 
        waste collection program or publicly owned treatment works 
        unqualified under this subsection.
            ``(9) If the President determines that a household 
        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 disqualification.
            ``(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 section 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 paragraph (7), and if such 
        noncompliance is not remedied within twelve months, the 
        provisions of subsection (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 `eligible 
        municipality' under this subsection means any municipality 
        against which an administrative or judicial action is brought, 
        or to which notice is given of potential liability, under 
        paragraph (1) or (2) of section 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 municipality 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 subsection to the extent that 
        the municipality is eligible under this paragraph.
            ``(2) Negotiation of settlements; moratorium.--Eligible 
        municipalities under this subsection may offer to settle their 
        potential liability with the President by stating in writing 
        their ability and willingness 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 
        municipality, unless the President determines that the eligible 
        municipality's offer or position during negotiations is not in 
        good faith or otherwise not in accordance with this subsection. 
        Nothing in this subsection shall limit or modify the 
        President's authority under section 104(e).
            ``(3) Timing.--Eligible municipalities may tender offers 
        under this subsection within 180 days after receiving 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 municipality's settlement offer, whichever is 
        later. If the President notifies an eligible municipality that 
        it may be a potentially responsible party, no further 
        administrative or judicial action 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 account the 
                public interest factors normally considered by the 
                President in formulating settlements 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 consideration of factors, 
                including but not limited to the following: (i) the 
                ratio of debt service to operating revenues, other than 
                obligated or encumbered revenues, (ii) the ratio of 
                total funds, other than dedicated funds, to total 
                expenses, (iii) the ratio of total revenues, other than 
                obligated or encumbered revenues, to total expenses, 
                (iv) the ratio of debt service to population, (v) the 
                ratio of operating revenues, other than obligated or 
                encumbered revenues, to population, (vi) the ratio of 
                total expenses to population, (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 provide, 
                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, demonstrable risk that the 
                municipality will default 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 restoration, 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 recreational 
                activities or aesthetic civic improvements.
                    ``(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 purposes of this subparagraph, a legal 
                requirement or limitation of general applicability 
                means a legislative enactment that governs a 
                municipality'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 requested 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 paragraph shall apply 
                to the remaining allocation of response costs, 
                penalties, and damages to eligible municipalities.
            ``(5) Effect of agreement.--An eligible municipality 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 matters addressed in the settlement. Such settlement 
        does not discharge any of the other potentially responsible 
        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 municipality is an 
        eligible municipality under this subsection and an eligible 
        person under subsection (n) with regard to the same facility, 
        the President should attempt to reach a single, expeditious 
        settlement 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 
        environment 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 administrative law shall govern whether any 
        supplemental materials may be considered by the court. In 
        considering 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 Environmental 
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 municipal 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, Compensation, 
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, unless 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 judgment has been rendered or court-
approved settlement agreement has been reached that does not resolve 
all contested 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.

                                 <all>

S 965 IS----2