[House Report 107-70]
[From the U.S. Government Publishing Office]





107th Congress                                             Rept. 107-70
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
                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. Tauzin, from the Committee on Energy and Commerce, 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 Energy and Commerce, 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.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for Legislation..............................     2
Hearings.........................................................     2
Committee Consideration..........................................     2
Committee Votes..................................................     3
Committee Oversight Findings.....................................     3
Statement of General Performance Goals and Objectives............     3
New Budget Authority, Entitlement Authority, and Tax Expenditures     3
Committee Cost Estimate..........................................     3
Congressional Budget Office Estimate.............................     3
Federal Mandates Statement.......................................     6
Advisory Committee Statement.....................................     6
Constitutional Authority Statement...............................     6
Applicability to Legislative Branch..............................     6
Section-by-Section Analysis of the Legislation...................     6
Changes in Existing Law Made by the Bill, as Reported............     8

                          Purpose and Summary

    H.R. 1831, the Small Business Liability Protection Act, 
amends the Comprehensive Environmental Response, Compensation 
and Liability Act of 1980 (CERCLA) for the purpose of exempting 
certain parties from liability under the Act, and for other 
purposes.
    First, H.R. 1831 exempts from liability for response costs 
under Section 107 of CERCLA, at a facility on the National 
Priorities List (NPL), a person who disposed of, or arranged 
for disposal of, materials containing hazardous substances if 
they consisted of less than 110 gallons of liquid or less than 
200 pounds of solid materials and they were disposed of before 
April 1, 2001. Second, H.R. 1831 exempts from liability for 
response costs under Section 107 of CERCLA at a facility on the 
NPL a residential property owner, a small business concern, or 
a small non-profit organization for disposal of municipal solid 
waste. Third, H.R. 1831 provides that any party commencing a 
new action against a party who is not liable due to the 
exemptions in the Act must pay that party's reasonable 
attorney's fees and court costs. Finally, H.R. 1831 authorizes 
the President to reduce the amount of a settlement for response 
costs for a person who demonstrates to the President an 
inability or limited ability to pay for the cleanup and who 
otherwise fully cooperates with the government in its cleanup 
efforts.

                  Background and Need for Legislation

    In an effort to clean up the Nation's most polluted toxic 
waste sites, Congress enacted the Comprehensive Environmental 
Response, Compensation and Liability Act of 1980 (CERCLA). This 
law, commonly known as ``Superfund,'' has been interpreted by 
the courts to have established responsibility for cleanups 
based upon a retroactive, strict, joint and several liability 
scheme. This means that in order to hold someone liable for 
cleanup costs, the government must show that a person falls in 
one of the categories of liable parties under Superfund (owner, 
operator, generator, or transporter) at a facility at which 
there has been a release of hazardous substances. Superfund 
also provided the Environmental Protection Agency (EPA) or a 
third party with the authority to clean up a site and later 
seek contribution from other liable parties for their portions 
of cleanup costs.
    Small businesses that have disposed of minor quantities of 
hazardous waste or municipal solid waste can be held liable 
under Superfund. In previous Congresses, the Committee has 
received testimony from small businesses, such as restaurant 
owners, about the unfairness of Superfund's liability regime 
when used by third parties to threaten or sue small businesses 
or homeowners for disposing of municipal solid waste. H.R. 
1831, the Small Business Liability Protection Act, is intended 
to address this unfairness by creating certain liability 
exemptions for parties that disposed of municipal solid waste 
or disposed of very small quantities of materials containing 
hazardous substances.

                                Hearings

    The Committee on Energy and Commerce has not held hearings 
during the 107th Congress on the legislation.

                        Committee Consideration

    On May 16, 2001, the Subcommittee on Environment and 
Hazardous Materials met in open markup session and approved 
H.R. 1831, for Full Committee consideration, without amendment, 
by a voice vote. On May 17, 2001, the Energy and Commerce 
Committee met in open markup session and ordered H.R. 1831, 
reported to the House, without amendment, by a voice vote.

                            Committee Votes

    There were no record votes taken in connection with 
ordering H.R. 1831 reported. A motion by Mr. Tauzin to order 
H.R. 1831 reported to the House, without amendment, was agreed 
to by a voice vote.

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has not held oversight 
or legislative hearings on this legislation.

         Statement of General Performance Goals and Objectives

    The goal of H.R. 1831 is to exempt certain parties from 
Superfund liability and authorizing the President to take into 
account a person's inability or limited ability to pay for 
response costs in reaching settlements.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
1831, The Small Business Liability Protection Act, would result 
in no new or increased budget authority, entitlement authority, 
or tax expenditures or revenues.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 17, 2001.
Hon. W. J. ``Billy'' Tauzin,
Committee on Energy and Commerce,
House on Representative, 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.

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 and 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 micromis'' 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 as 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 CBO 
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 was 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 
Transportation and Infrastructure on May 16, 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.

                       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.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 3, which grants Congress the power 
to regulate commerce with foreign nations, among the several 
States, and with the Indian tribes.

                  Applicability to 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.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section provides the short title of the bill, the 
``Small Business Liability Protection Act.''

Section 2. Small business liability relief

    Section 2(a) of this Act amends Section 107 of CERCLA by 
adding new subsection 107(o) creating a de micomis exemption 
and new subsection 107(p) creating a municipal solid waste 
exemption.
    New subsection 107(o) of CERCLA exempts from liability for 
response costs under Section 107 of CERCLA, at a facility on 
the NPL, a person who disposed of, or arranged for disposal of, 
waste materials containing hazardous substances if they 
consisted of less than 110 gallons of liquid or less than 200 
pounds of solid materials and they were disposed of before 
April 1, 2001.
    New subsection 107(o)(2)(A)(ii) provides that the President 
may determine that a person who otherwise qualifies for the de 
micromis exemption shall not receive the exemption if the 
person fails to comply with an information request or 
administrative subpoena issued by the President. The Committee 
intends that the determination lies 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.
    New subsection 107(o)(4) provides that in the case of a 
contribution action, with respect to response costs at a 
facility on the NPL, 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 specified conditions have not been met.
    New subsection 107(p) of CERCLA exempts from liability for 
response costs under Section 107 of CERCLA at a facility on the 
NPL, a residential property owner, a small business concern, or 
a small non-profit organization for disposal of municipal solid 
waste. Municipalsolid 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. 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.
    The municipal solid waste exemption does not apply to a 
party if the President determines that party's wastes have 
contributed or could contribute significantly, either 
individually or in the aggregate, to cleanup costs or natural 
resource damages with respect to the facility. The Committee 
intends that the phrase ``in the aggregate'' in new section 
107(p)(2)(A) refer to all of the municipal solid waste 
generated by that owner, operator, or lessee, business entity 
or charitable organization and sent to the facility which 
otherwise qualifies 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 
persons or business entities. Similarly, the de micromis 
exemption does not apply to a party if the President determines 
that party's wastes have contributed or could contribute 
significantly, either individually or in the aggregate, to 
cleanup costs or natural resource damages with respect to the 
facility, and in new section 107(o)(2)(A), the Committee does 
not intend that the phrase ``in the aggregate'' be interpreted 
to encompass all waste materials containing hazardous 
substances disposed of at the facility by different persons or 
business entities.
    New subsection 107(p)(5) provides that in the case of an 
action with respect to response costs at a facility on the NPL, 
brought under section 107 or 113 of CERCLA 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 specified 
conditions have not been met.
    This subsection also provides that a non-governmental 
entity that commences, after the date of the enactment, 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 new subsection 107(o) and 107(p) of CERCLA.
    Section 2(b) of this Act amends Section 122(g) of CERCLA by 
authorizing the President to reduce the amount of a settlement 
for response costs with a person who demonstrates to the 
President an inability or limited financial ability to pay for 
the cleanup and who otherwise fully cooperates with the 
government in its cleanup efforts. In addition, the Federal 
government is given the ability to weigh non- financial 
contributions towards a person's cleanup payments.
    The Committee does not intend that this 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 NPL, the Committee 
does not intend to affect the authority of the President to 
reach settlements with other potentially responsible parties 
under CERCLA.

Section 3. Effect on concluded actions

    Section 3 provides that the amendments made by this Act 
shall not apply to or in any way affect any settlement lodged 
in, or judgment issued by, a United States District Court, or 
any administrative settlement or order entered into or issued 
by the United States or any State, before the date of the 
enactment of this Act.

         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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