I

104TH CONGRESS

1ST SESSION H. R. 2500

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 18, 1995

Mr. OXLEY (for himself, Mr. BLILEY, Mr. SHUSTER, Mr. BOEHLERT, Mr.

TAUZIN, Mr. UPTON, Mr. GILLMOR, Mr. ROEMER, Mr. BURR, Mr. HORN,

Mr. PARKER, Mr. WAMP, Mr. DUNCAN, Mr. YOUNG of Arkansas, Mr.

QUINN, Mr. PETRI, Mr. BACHUS, and Mr. CRAPO) introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committees on Transportation and Infrastructure and Ways

and Means, for a period to be subsequently determined by the Speaker,

in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

4 This Act may be cited as the ‘‘Reform of Superfund

5 Act of 1995’’.

TITLE I—REMEDY SELECTION AND COMMUNITY PARTICIPATION

Sec. 101. Objective and unbiased risk assessment standards.

Sec. 102. Remedy selection.
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Sec. 103. Public participation.

Sec. 104. Community Assistance Groups.

Sec. 105. Hazard ranking system and revision of National Contingency Plan.

Sec. 106. Disease registry and medical care providers.

Sec. 107. Determining health effects.

Sec. 108. Public health at NPL facilities.

Sec. 109. Health studies.

Sec. 110. Distribution of materials to health professionals and medical centers.

Sec. 111. Grant awards, contracts, and community assistance activities.

Sec. 112. Removal actions.

Sec. 113. Hazardous substance property use.

Sec. 114. Judicial review of remedy.

Sec. 115. Effective date and transition rules.

TITLE II—LIABILITY

Sec. 201. Retroactive liability discount.

Sec. 202. Reimbursement for certain retroactive municipal landfill liability.

Sec. 203. Additional liability exemptions and limitations.

Sec. 204. Clarifications of certain liability.

Sec. 205. Illegal activities.

Sec. 206. Amendments to section 106.

Sec. 207. Allocation procedures.

Sec. 208. Civil proceedings.

Sec. 209. Limitations on contribution actions.

Sec. 210. Liability of response action contractors.

Sec. 211. Enhancement of settlement authorities.

Sec. 212. Professional services.

Sec. 213. Final covenants.

Sec. 214. Expedited final settlements.

Sec. 215. Clarification of liability for recycling transactions.

Sec. 216. Information gathering and access.

TITLE III—BROWNFIELDS AND VOLUNTARY CLEANUPS

Sec. 301. State voluntary response programs.

Sec. 302. Lender and fiduciary liability.

Sec. 303. Innocent landowners.

Sec. 304. Limitation on Federal enforcement actions under CERCLA for

States with approved remedial action programs.

Sec. 305. Bona fide prospective purchaser liability.

TITLE IV—NATURAL RESOURCE DAMAGES

Sec. 401. Natural resource damages.

TITLE V—STATE ROLE

Sec. 501. Authorization of State programs at national priorities list facilities.

Sec. 502. National priorities list cap.

Sec. 503. State and local reimbursement for response actions.

TITLE VI—FEDERAL FACILITIES

Sec. 601. State role at Federal facilities.

Sec. 602. Innovative technologies for remedial action at Federal facilities.

Sec. 603. Contents of certain deeds.
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Sec. 604. Transfers of uncontaminated property.

Sec. 605. Federal entities and facilities.

Sec. 606. Factor to be applied in criteria for determining listing of Federal facilities on national priorities list.

Sec. 607. Notification regarding uncontaminated property at Federal facilities.

Sec. 608. Annual studies of priorities at Federal facilities.

Sec. 609. Judicial removals.

TITLE VII—MISCELLANEOUS

Sec. 701. Definitions.

Sec. 702. Response claims procedures.

Sec. 703. Small business ombudsman.

Sec. 704. Consideration of local government cleanup priorities.

Sec. 705. Savings clause.

Sec. 706. Report and oversight requirements.

Sec. 707. Response authorities.

TITLE VIII—AMENDMENTS TO OIL POLLUTION ACT OF 1990

Sec. 801. Ensuring cost-effective restoration, rehabilitation, replacement, or acquisition of natural resources.

Sec. 802. Measure of natural resource damages.

Sec. 803. Damage assessment regulations.

Sec. 804. Definitions.

TITLE IX—REMEDIATION WASTE MANAGEMENT

Sec. 901. Remediation waste.

Sec. 902. Underground storage tank remediation.

Sec. 903. Limitation of liability under Solid Waste Disposal Act.

TITLE X—FUNDING

Subtitle A—Expenditures from the Hazardous Substance Superfund

Sec. 1001. Expenditures from the hazardous substance superfund.

Sec. 1002. Authorization of appropriations from general revenues.

Subtitle B—5–Year Extension of Hazardous Substance Superfund

Sec. 1011. 5-year extension of hazardous substance superfund.

1 TITLE I—REMEDY SELECTION

2 AND COMMUNITY PARTICIPA3 TION

4 SEC. 101. OBJECTIVE AND UNBIASED RISK ASSESSMENT

5 STANDARDS.

6 Title I is amended by adding the following new sec7 tion at the end thereof:
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1 ‘‘SEC. 127. NATIONAL RISK PROTOCOL.

2 ‘‘(a) IN GENERAL.—Risk assessments conducted

3 under this Act shall—

4 ‘‘(1) provide scientifically objective and unbi5 ased estimates and characterizations which neither

6 minimize nor exaggerate the nature and magnitude

7 of risks to human health and the environment;

8 ‘‘(2) distinguish scientific findings from other

9 considerations;

10 ‘‘(3) be based on relevant and current scientific,

11 technical and exposure-related information, including

12 available or reasonably obtainable epidemiologic

13 data, data on bioavailability, and site-specific infor14 mation.’’.

15 ‘‘(b) GUIDELINES.—(1) The President shall evaluate

16 and publish guidelines that, to the degree appropriate and

17 practicable—

18 ‘‘(A) define the use of probabilistic modeling;

19 ‘‘(B) identify criteria for the selection and ap20 plication of transport and fate models;

21 ‘‘(C) define the use of population risk estimates

22 in addition to individual risk estimates;

23 ‘‘(D) define appropriate approaches for address24 ing cumulative potential risks posed by multiple con25 taminants or multiple exposure pathways;
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1 ‘‘(E) establish appropriate sampling approaches

2 and data quality requirements; and

3 ‘‘(F) establish policy and procedures for inde4 pendent and external peer review for significant risk

5 assessments, models, or methodologies.

6 ‘‘(2) The guidelines under paragraph (1) shall also

7 provide methodology or guidance for establishing protec8 tive exposure levels that are set, to the extent feasible and

9 scientifically appropriate, at the final 90th percentile of

10 the exposure probability distribution. For parameters

11 based on assumptions without a statistical distribution,

12 the President shall use the most plausible assumptions

13 given the weight of the scientific information available to

14 the President.

15 ‘‘(3) Final guidelines under this subsection shall be

16 established after independent and external peer review and

17 notice and opportunity for comment on draft guidelines.

18 The publication of final guidelines shall be considered final

19 agency action.

20 ‘‘(c) REVIEW OF SUBSTANCES.—(1) The President,

21 in consultation with the Administrator and the Adminis22 trator of the ATSDR, shall conduct a review of the health

23 effects values and toxicological profiles of 25 hazardous

24 substances listed under paragraph (2) of section 104(i)

25 that the President considers to be carcinogens and that
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1 pose the most significant risk at National Priorities List

2 sites and publish an assessment of such health effects val3 ues. The President shall not include substances in the re4 view under this subsection if such substance is currently

5 under scientific reevaluation pursuant to title XIV of the

6 Public Health Service Act (the Safe Drinking Water Act).

7 For purposes of such review and assessment, within 30

8 days after the date of the enactment of the Reform of

9 Superfund Act of 1995, the President shall publish an ad10 vance notice of proposed rulemaking to obtain public com11 ments on such review and assessment. Not later than 15

12 months after the date of the enactment of the Reform of

13 Superfund Act of 1995, the President shall publish a draft

14 of such assessment. After receiving such comments on

15 such draft assessment, and after independent and external

16 peer review, but within 2 years after the date of the enact17 ment of the Reform of Superfund Act of 1995, the Presi18 dent shall complete the review and publish the assessment

19 under this subsection. The publication of the final assess20 ment shall be considered final agency action.

21 ‘‘(2) The review and assessment under this sub22 section shall include a discussion, to the extent relevant,

23 of both laboratory and epidemiological data of sufficient

24 quality which finds, or fails to find, a significant correla25 tion between health risks and a potential toxin. Where
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1 conflicts among such data appear to exist, or where animal

2 data are used as a basis to assess human health, the re3 view and assessment shall, where appropriate, include dis4 cussion of reconciliation of conflicting information, and as

5 appropriate, differences in study designs, comparative

6 physiology, routes of exposure, bioavailability,

7 pharmacokinetics, and any other relevant factor.

8 ‘‘(3) Where the review and assessment involve selec9 tion of any significant assumption, inference, or model, the

10 President shall—

11 ‘‘(A) present a representative list and expla12 nation of plausible and alternative assumptions, in13 ferences, or models;

14 ‘‘(B) explain the basis for any choices;

15 ‘‘(C) identify any policy or value judgments;

16 ‘‘(D) fully describe any model used in the risk

17 assessment and make explicit the assumptions incor18 porated in the model; and

19 ‘‘(E) indicate the extent to which any signifi20 cant model has been validated by, or conflicts with,

21 empirical data.

22 ‘‘(4) If numerical estimates of risk or health effects

23 values are provided, the President shall specify the popu24 lation that is the subject of the estimate. To the extent

25 feasible and scientifically appropriate, the President shall
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1 include, among other estimates, central estimates of risk

2 or health effects values using the most plausible assump3 tions, given the weight of the scientific information avail4 able to the President. Where significant assumptions have

5 substantially similar scientific support, the President shall

6 provide a description of the range of estimates. The Presi7 dent also shall provide a description of scientific uncertain8 ties that accompany such estimates.

9 ‘‘(d) UPDATING OF HEALTH EFFECTS VALUES.—

10 The President shall determine an appropriate approach

11 and schedule for reviewing the health effects values of

12 chemicals on the hazardous substances list to ensure that

13 such values remain current with emerging science and rel14 evant Agency policy.’’.

15 SEC. 102. REMEDY SELECTION.

16 Section 121 (42 U.S.C. 9621) is amended to read as

17 follows:

18 ‘‘SEC. 121. REMEDY SELECTION.

19 ‘‘(a) IN GENERAL.—The President shall select appro20 priate remedial actions determined to be necessary to be

21 carried out under section 104 or secured under section

22 106 in accordance with this section.

23 ‘‘(b) GENERAL STANDARDS.—(1) Remedies selected

24 at individual facilities shall be those necessary to protect

25 human health and the environment from realistic and sig-
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1 nificant risks through cost-effective and cost-reasonable

2 means.

3 ‘‘(2) Remedies shall prevent or eliminate any actual

4 human ingestion of drinking water containing any hazard5 ous substance at levels—

6 ‘‘(A) in excess of the maximum contaminant

7 level established under title XIV of the Public

8 Health Service Act (the Safe Drinking Water Act),

9 or

10 ‘‘(B) if no such maximum contaminant level has

11 been established, in excess of those levels needed to

12 protect human health from realistic and significant

13 risks.

14 ‘‘(3) With respect to non-threshold carcinogens, a

15 remedy shall be deemed protective of human health if the

16 remedy limits cumulative, lifetime additional cancer risk

17 from exposure to hazardous substances from releases at

18 the facility to within the range of one in 10,000 to one

19 in 1,000,000 for the affected population, as determined

20 by the President, based upon the actual or reasonably an21 ticipated future uses of land, water, and other resources.

22 Nothing in this paragraph shall require remedies to in23 crease net risks to human health when considering sub24 section (f)(1)(C).
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1 ‘‘(4) Where available, the President shall use infor2 mation on actual ingestion, inhalation, dermal contact, or

3 blood or tissue toxin levels at the site. Where the President

4 uses estimates, protective exposure levels shall be based,

5 to the extent feasible and scientifically appropriate, at the

6 final 90th percentile of the exposure probability distribu7 tion for the population that is the subject of the specific

8 estimate. For exposure and bioavailability parameters

9 based on assumptions without a statistical distribution, in10 cluding those in any relevant model, the President shall

11 use the most plausible assumptions, given the weight of

12 the scientific information available to the President.

13 ‘‘(5) A remedial action shall be deemed protective of

14 the environment if, based on the actual or reasonably an15 ticipated future use of the land, water, or other resources,

16 it will protect against realistic and significant risks to eco17 logical resources that are necessary to the sustainability

18 of a significant ecosystem and will not interfere with a

19 sustainable functional ecosystem.

20 ‘‘(6) In evaluating and selecting remedial actions, the

21 President shall take into account the potential for injury

22 to, destruction of, or loss of a natural resource resulting

23 from such action.

24 ‘‘(7) Remedial actions requiring point source dis25 charges into navigable waters of the United States shall
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1 comply with applicable State standards respecting those

2 point source discharges.

3 ‘‘(c) METHOD OF REMEDIATION.—A remedial action

4 may achieve protection of human health and the environ5 ment through treatment that reduces the toxicity, mobil6 ity, or volume of hazardous substances; stabilization;

7 source control; natural attenuation over a reasonable pe8 riod of time; containment or other engineering controls to

9 limit exposure; institutional controls; point of use treat10 ment; provision of alternative water supply or other meth11 ods; or a combination of any of the preceding methods.

12 No preference or bias shall apply to any specific method

13 of remediation. The method or methods of remediation ap14 propriate for a given facility shall be determined through

15 the evaluation of remedial alternatives and the selection

16 process under subsections (d), (e), and (f).

17 ‘‘(d) ANTICIPATED USE OF LAND, WATER AND

18 OTHER RESOURCES.—(1) In selecting a remedy, the

19 President shall take into account the current and reason20 ably anticipated future uses of land, water, and other re21 sources at a facility and the timing of such uses. Such

22 reasonably anticipated uses may include current uses or

23 potential future uses that have a substantial probability

24 of occurring, based on the administrative record and the

25 information to be considered under this paragraph. In
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1 identifying such reasonably anticipated future uses, the

2 President shall consider relevant factors, which generally

3 shall include the following:

4 ‘‘(A) Any consensus recommendation of the

5 Community Assistance Group and any other views

6 expressed by members of the affected community,

7 except that, with respect to a Federal facility sched8 uled for closure or realignment, the President shall

9 consider any joint consensus recommendation of the

10 Community Assistance Group and a redevelopment

11 authority which has been established for such facil12 ity.

13 ‘‘(B) The historical land, water, and other re14 sources of the facility and surrounding properties,

15 the current uses of the facility and surrounding

16 properties, recent development patterns in the area

17 where the facility is located, and population projec18 tions for that area.

19 ‘‘(C) Federal or State land use designations, in20 cluding Federal facilities and national parks, State

21 ground water or surface water recharge areas estab22 lished under a State’s comprehensive protection plan

23 for ground water or surface water, and recreational

24 areas.
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1 ‘‘(D) The current land use zoning and future

2 land use plans of the local government with land use

3 regulatory authority.

4 ‘‘(E) The potential for economic redevelopment.

5 ‘‘(F) Current plans for the facility by the prop6 erty owner or owners.

7 ‘‘(G) The availability of alternative sources of

8 drinking water.

9 ‘‘(2) In developing its recommendation, the Commu10 nity Assistance Group shall consider factors listed in sub11 paragraphs (B) through (G) of paragraph (1).

12 ‘‘(3) All information considered by the President in

13 evaluating reasonably anticipated future land uses under

14 this subsection shall be included in the administrative

15 record under section 113(k).

16 ‘‘(e) SITE SPECIFIC RISK ASSESSMENT.—The Presi17 dent shall use site-specific risk assessment consistent with

18 section 127 to—

19 ‘‘(1) determine the nature and extent of risk to

20 human health and the environment;

21 ‘‘(2) determine whether a response action is

22 needed at the facility; and

23 ‘‘(3) evaluate alternative remedial actions for

24 the facility to determine their risk reduction benefits
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1 and assist in selecting the remedial action for the fa2 cility that meets the criteria of subsection (f).

3 ‘‘(f) APPROPRIATE REMEDIAL ACTION.—

4 ‘‘(1) ALTERNATIVES CONSIDERED AND FAC5 TORS BALANCED.—The President shall identify an

6 appropriate mix of remedial alternatives, including

7 significant options provided by interested parties.

8 Appropriate remedies shall be based on the current

9 and reasonably anticipated future uses of land,

10 water, and other resources, and the timing of such

11 uses. The President shall select an appropriate rem12 edy by considering and balancing, under paragraph

13 (2), the following factors:

14 ‘‘(A) The effectiveness of the remedy, in15 cluding its implementability and technical prac16 ticability and the ability to reduce risks.

17 ‘‘(B) The reliability of the remedy over the

18 short and long term.

19 ‘‘(C) Risks to the affected community, to

20 those engaged in the cleanup effort, and to the

21 environment arising from offsite transportation

22 and subsequent management of the hazardous

23 substances involved and short-term risks posed

24 by the implementation of the remedy.
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1 ‘‘(D) The acceptability of the remedy to

2 the affected community, as represented by the

3 elected officials of the affected local govern4 ment.

5 ‘‘(E) The reasonableness of the costs of

6 the remedy in relation to other significant reme7 dial options.

8 ‘‘(2) EVALUATION OF COST-EFFECTIVENESS.—

9 The President shall demonstrate and certify that the

10 selected remedy represents a cost-effective risk re11 duction and that the incremental cost of the chosen

12 alternative is justified and reasonably related to the

13 incremental risk reduction benefits of the remedy.

14 The assessment of incremental costs and incremen15 tal risk reduction benefits shall include evaluation of

16 the difference in costs and benefits between signifi17 cant remedial options. Incremental costs and risk re18 duction benefit shall be quantified to the maximum

19 extent practicable and appropriate and shall other20 wise be qualitatively described. To the extent fea21 sible, costs and benefits should be determined on a

22 net present value basis. The President shall give a

23 preference to the most cost-effective remedial option

24 that adequately protects human health and the envi25 ronment from realistic and significant risks consider-
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1 ing both short-term and long-term costs over the

2 life-cycle of the remedy.

3 ‘‘(g) GENERIC REMEDIES.—(1) To expedite and in4 crease the efficiency of the remedy selection process, the

5 President may, after notice and opportunity for comment,

6 establish generic remedies where such remedies are dem7 onstrated to be effective in protecting human health and

8 the environment from realistic and significant risk in a

9 cost-effective and cost-reasonable manner. The President

10 shall not establish generic remedies for mining and min11 eral processing facilities or related areas of contamination.

12 Generic remedies may provide for consideration of a mix

13 of site-specific factors along with generic approaches for

14 particular categories of sites. Such demonstration shall—

15 ‘‘(A) be based on the record from a number of

16 comparable sites,

17 ‘‘(B) evaluate an appropriate mix of remedial

18 options, and

19 ‘‘(C) show that the generic remedy will not pre20 vent consideration of site-specific factors which vary

21 significantly from site to site in a manner that could

22 significantly impact protection of human health or

23 the environment or the costs of the remedy.

24 ‘‘(2) Where a generic remedy applies the President

25 need not perform a site specific risk assessment or evalua-
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1 tion of alternatives under this section. The President shall

2 publish a notice of intention to utilize and opportunity to

3 comment on the applicability of any generic remedy for

4 the site.

5 ‘‘(3) An interested party may seek a waiver from a

6 generic remedy. The request for a waiver shall include suf7 ficient site-specific and other information to demonstrate

8 that the generic remedy is not appropriate or that another

9 alternative can protect human health and the environment

10 through significantly less costly means. The President

11 shall consider the request for a waiver within 90 days and

12 grant requests meeting the demonstration in this para13 graph.

14 ‘‘(h) EARLY EVALUATION AND PHASED REMEDIAL

15 ACTION.—(1) The President shall consider new proce16 dures for conducting remedial investigations and feasibil17 ity studies in an efficient, cost-effective and timely man18 ner. Such new procedures shall take into consideration a

19 results-oriented approach in order to minimize the time

20 required to conduct such investigations and studies. The

21 President shall, as part of the next proposed revision of

22 the National Contingency Plan after the enactment of this

23 paragraph, propose, as appropriate, to incorporate the new

24 procedures for conducting the remedial investigations and

25 feasibility studies. The President shall, as appropriate,
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1 employ a phased approach to site characterization and re2 mediation in which remedies are arrived at through a se3 quence of investigations and actions. Information gathered

4 in one phase shall be used to inform each successive phase

5 until final remediation goals are determined and attained.

6 ‘‘(2) To facilitate efficient and effective site charac7 terization that promotes early evaluation of remedial alter8 natives and to prevent ground water contamination prob9 lems from worsening, the President shall ensure, to the

10 extent practicable, that hydrogeologic and contaminant-re11 lated information necessary to select final ground water

12 remedial actions, including findings of technical imprac13 ticability, shall be collected as part of site characterization

14 activities prior to and during the remedial investigation.

15 ‘‘(i) INSTITUTIONAL CONTROLS.—Whenever the

16 President selects a remedial action which relies on restric17 tions on the use of land, water, or other resources to

18 achieve protection of human health and the environment,

19 the President shall specify the nature of the restrictions

20 required to achieve such protections, including restrictions

21 on the permissible uses of land, prohibitions on specified

22 activities upon the property, restrictions on the drilling of

23 wells or other use of ground water, or restrictions on the

24 use of surface water, and may ensure that such restric25 tions are incorporated into a hazardous substance ease-
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1 ment, as provided by section 104(k). In reviewing remedial

2 action alternatives that would require the use of such re3 strictions and providing opportunity for public comment

4 on those alternatives, the President shall identify the na5 ture of any institutional controls that would be required

6 to implement such restrictions, known or anticipated af7 fected persons, the likely duration of such restrictions, and

8 the anticipated costs of acquiring any appropriate hazard9 ous substance easements and enforcing the appropriate re10 strictions.

11 ‘‘(j) TECHNICAL IMPRACTICABILITY.—The President

12 shall, for purposes of section 121(f)(1)(A), make findings

13 of technical impracticability from an engineering perspec14 tive on the basis of projections, modeling, or other analysis

15 on a site specific basis (including the consideration of in16 formation presented by responsible parties at such facility)

17 without a requirement that the remedial measure for

18 which a finding of technical impracticability is under con19 sideration be first constructed or installed and operated

20 and its performance over time reviewed, unless such pro21 jection, modeling, measure, or other analysis are insuffi22 cient or inadequate to make such a finding.

23 ‘‘(k) PROCEDURAL REQUIREMENTS FOR ON-SITE

24 ACTIONS.—Procedural requirements of Federal and State

25 standards, requirements, criteria, or limitations, including
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1 permitting requirements, shall not apply to response ac2 tions conducted on-site. No Federal, State, or local permit

3 shall be required for the portion of any removal or reme4 dial action conducted entirely onsite, where such action is

5 selected and carried out in compliance with this section.

6 ‘‘(l) EXCLUSIVE STANDARDS.—For any facility to

7 which they apply, the standards set forth in this section

8 shall govern the degree of cleanup, remedy selection, and

9 on-site management of hazardous substances in lieu of any

10 other Federal, State, or local standards.

11 ‘‘(m) DISPOSAL STANDARDS.—(1) Except as pro12 vided in paragraph (2), a State standard, requirement, cri13 teria, or limitation (including any State siting standard

14 or requirement) which could effectively result in the state15 wide prohibition of land disposal of hazardous substances

16 shall not apply.

17 ‘‘(2) Any State standard, requirement, criteria, or

18 limitation referred to in paragraph (1) shall apply offsite

19 where each of the following conditions is met:

20 ‘‘(A) The State standard, requirement, criteria,

21 or limitation is of general applicability and was

22 adopted by formal means.

23 ‘‘(B) The State standard, requirement, criteria,

24 or limitation was adopted on the basis of hydrologic,

25 geologic, or other relevant considerations and was
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1 not adopted for the purpose of precluding onsite re2 medial actions or other land disposal for reasons un3 related to protection of human health and the envi4 ronment.

5 ‘‘(C) The State arranges for, and assures pay6 ment of the incremental costs of utilizing, a facility

7 for disposition of the hazardous substances con8 cerned.

9 ‘‘(n) STATE INVOLVEMENT.—The President shall

10 promulgate regulations providing for substantial and

11 meaningful involvement by each State in initiation, devel12 opment, and selection of remedial actions to be undertaken

13 in that State. The regulations, at a minimum, shall in14 clude each of the following:

15 ‘‘(1) State involvement in decisions whether to

16 perform a preliminary assessment and site inspec17 tion.

18 ‘‘(2) Allocation of responsibility for hazard

19 ranking system scoring.

20 ‘‘(3) State concurrence in deleting facilities

21 from or adding facilities to the National Priorities

22 List.

23 ‘‘(4) State participation in the long-term plan24 ning process for all remedial sites within the State.
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1 ‘‘(5) A reasonable opportunity for States to re2 view and comment on each of the following:

3 ‘‘(A) The remedial investigation and fea4 sibility study and all data and technical docu5 ments leading to its issuance.

6 ‘‘(B) The planned remedial action identi7 fied in the remedial investigation and feasibility

8 study.

9 ‘‘(C) The engineering design following se10 lection of the final remedial action.

11 ‘‘(D) Other technical data and reports re12 lating to implementation of the remedy.

13 ‘‘(E) Notice to the State of negotiations

14 with potentially responsible parties regarding

15 the scope of any response action at a facility in

16 the State and an opportunity to participate in

17 such negotiations and be a party to any settle18 ment.

19 ‘‘(F) Notice to the State and an oppor20 tunity to comment on the President’s proposed

21 plan for remedial action as well as on alter22 native plans under consideration. The Presi23 dent’s proposed decision regarding the selection

24 of remedial action shall be accompanied by a re25 sponse to the comments submitted by the State.
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1 A copy of such response shall also be provided

2 to the State.

3 ‘‘(G) Prompt notice and explanation of

4 each proposed action to the State in which the

5 facility is located.

6 Prior to the promulgation of such regulations, the Presi7 dent shall provide notice to the State of negotiations with

8 potentially responsible parties regarding the scope of any

9 response action at a facility in the State, and such State

10 may participate in such negotiations and any settlements.

11 ‘‘(o) STATES ADJOINING CERTAIN FACILITIES.—(1)

12 The President shall provide to any adjoining State those

13 opportunities for review and comment regarding any re14 sponse action at a facility owned or operated by the De15 partment of Energy that are provided to the State in

16 which such facility is located pursuant to paragraph (5)

17 of subsection (n).

18 ‘‘(2) The State in which a facility owned or operated

19 by the Department of Energy is located may enter into

20 a Memorandum of Understanding with an adjoining State

21 addressing issues of mutual concern regarding response

22 actions at the facility.

23 ‘‘(3) Whenever the State in which a facility owned

24 or operated by the Department of Energy is located brings

25 an action under this Act to compel the implementation of
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1 a remedial action pursuant to this Act at such facility,

2 any adjoining State may intervene as a matter of right

3 in such action.

4 ‘‘(4) For purposes of this subsection, the term ‘ad5 joining State’ means any State (other than the State in

6 which a facility owned or operated by the Department of

7 Energy is located) that is located within 50 miles of a fa8 cility owned or operated by a department, agency, or in9 strumentality of the United States.’’.

10 SEC. 103. PUBLIC PARTICIPATION.

11 Section 117 (42 U.S.C. 9617) is amended by striking

12 subsection (e) and inserting the following:

13 ‘‘(e) GRANTS FOR TECHNICAL ASSISTANCE.—

14 ‘‘(1) AUTHORITY.—In accordance with the rules

15 promulgated by the President, the President may

16 make grants available to any group of individuals

17 which may be affected by the release or threatened

18 release of hazardous substances at any facility on

19 the National Priorities List. Such grants shall be

20 known as Technical Assistance Grants. To ensure

21 that the application process is accessible to all af22 fected citizens, the President shall periodically re23 view such process and, based on such review, shall

24 implement appropriate changes to the application

25 process to improve access.
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1 ‘‘(2) SPECIAL RULES.—No matching contribu2 tion shall be required for a Technical Assistance

3 Grant. The President shall make a portion of the

4 grant available to the grant recipient, in advance of

5 the expenditures to be covered by the grant, in

6 $5,000 installments.

7 ‘‘(3) REPRESENTATIVE OF THE COMMUNITY.—

8 The President shall publish guidance for determin9 ing that the recipient of any Technical Assistance

10 Grant award is a legitimate representative of the

11 community affected by the facility.

12 ‘‘(4) LIMIT PER FACILITY.—Not more than one

13 grant may be made under this subsection with re14 spect to a single facility, but the grant may be re15 newed to facilitate public participation at all stages

16 of response action. Limits shall be established with

17 respect to the number of years for which grants may

18 be available based on the duration, type, and extent

19 of response activity at a facility.

20 ‘‘(5) FUNDING LIMIT.—Not more than

21 $20,000,000 may be used for grants under this sub22 section in any one fiscal year.

23 ‘‘(6) FUNDING AMOUNT.—The initial amount of

24 any grant under this subsection may not exceed

25 $50,000 for a single grant recipient. However, the
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1 President shall increase the amount of the initial

2 grant, as appropriate, to reflect the complexity of re3 sponse action, the nature and extent of contamina4 tion at the facility, the level of facility activity, pro5 jected total needs as requested by the grant recipi6 ent, the size and diversity of the affected population,

7 and the ability of the grant recipient to identify and

8 raise funds from other sources.

9 ‘‘(7) AUTHORIZED GRANT ACTIVITIES.—

10 ‘‘(A) INTERPRETATION OF INFORMA11 TION.—Grants awarded under this subsection

12 may be used to obtain technical assistance in

13 interpreting information with regard to (i) the

14 nature of the hazard at a facility; (ii) the reme15 dial investigation and feasibility study; (iii) the

16 record of decision; (iv) the selection, design, and

17 construction of the remedial action; (v) oper18 ation and maintenance; (vi) removal activities

19 at such facility; or (vii) natural resource dam20 age assessments that have been conducted.

21 ‘‘(B) ADDITIONAL ACTIVITIES.—Grants

22 awarded under this section also may be used (i)

23 to obtain technical assistance in interpreting in24 formation used to rank facilities according to

25 the Hazard Ranking System, (ii) for assessing
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1 a remedy selection decision, (iii) to hire health

2 and safety experts to advise affected residents

3 on health assessment and contamination data

4 gathering efforts and response activities, and

5 (iv) to generate documents as necessary to en6 sure full participation by the grant recipient.

7 ‘‘(C) LIMITATIONS.—Grants awarded

8 under this section may not be used for the pur9 poses of conducting soil or ground water sam10 pling or laboratory analysis at an affected facil11 ity.

12 ‘‘(8) USE OF EXPERTS.—Technical or other ex13 perts hired by grant recipients under this subsection

14 shall be hired by such recipients pursuant to guide15 lines developed by the President.

16 ‘‘(f) IMPROVING CITIZEN AND COMMUNITY PARTICI17 PATION IN THE SUPERFUND DECISIONMAKING PROC18 ESS.—(1) The President shall take such steps as nec19 essary to provide for meaningful public participation in

20 significant phases of response actions under this Act, to

21 the extent warranted by the public interest.

22 ‘‘(2) To the extent practicable, before or during the

23 health assessments and site inspection, the President shall

24 solicit and evaluate concerns, interests, and information

25 from the community likely affected by the facility. The
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1 evaluation shall include, as appropriate, face-to-face com2 munity surveys to identify the location of private drinking

3 water wells, historic and current or potential use of water,

4 and other environmental resources in the community; a

5 public meeting; written responses to significant concerns;

6 and other appropriate participatory activities.

7 ‘‘(3) During the remedial investigation and feasibility

8 study, the President shall solicit the views and preferences

9 of the affected community on the remediation and disposi10 tion of hazardous substances at the facility. The views and

11 preferences of affected community members shall be de12 scribed in the remedial investigation and feasibility study

13 and considered in the screening of remedial alternatives

14 for the facility.

15 ‘‘(4) Members of the affected community may pro16 pose remedial alternatives to the President, and the Presi17 dent shall consider such alternatives in the same manner

18 as the President considers alternatives proposed by poten19 tially responsible parties.

20 ‘‘(5) The President shall make all nonprivileged infor21 mation available to the public throughout all phases of re22 sponse action at the facility. Such information shall be

23 made available to the public for inspection and copying

24 without the need to file a formal request subject to reason25 able service charges as appropriate.
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1 ‘‘(6)(A) The President, in carrying out responsibil2 ities under this Act, shall ensure that the presentation of

3 information on risk is unbiased and informative. The re4 sults of any facility-specific risk evaluation shall contain

5 an explanation that clearly communicates the risks at the

6 facility, and shall—

7 ‘‘(i) identify and explain all significant assump8 tions used in the evaluation, as well as alternative

9 assumptions, the policy or value judgments used in

10 choosing the assumptions, and whether empirical

11 data conflict with or validate the assumptions;

12 ‘‘(ii) present a range and distribution of expo13 sure and risk estimates and, if numerical estimates

14 are provided—

15 ‘‘(I) central estimates of exposure and risk

16 using the most plausible assumptions given the

17 weight of current scientific information avail18 able to the President, and

19 ‘‘(II) a statement of the nature and mag20 nitude of the scientific uncertainties associated

21 with such estimates;

22 ‘‘(iii) include the size of the population poten23 tially at risk from releases from the facility, the ex24 posure scenario used, and the likelihood that such

25 potential exposures will occur based on the current
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1 or reasonably anticipated future uses of the land,

2 water, or other resources; and

3 ‘‘(iv) compare risks with estimates of greater,

4 lesser, and substantially equivalent risks that are fa5 miliar to and routinely encountered by the general

6 public as well as other risks, and, where appropriate

7 and meaningful, comparison of those risks with

8 other similar risks regulated by the Federal agency

9 resulting from comparable activities and exposure

10 pathways.

11 ‘‘(B) To the maximum extent practicable, documents

12 made available to the general public which purport to de13 scribe the degree of risk to human health shall, at a mini14 mum, provide information specified in subparagraph (A)

15 or a meaningful reference to such information in another

16 document reasonably available to the public.’’.

17 SEC. 104. COMMUNITY ASSISTANCE GROUPS.

18 Section 117 (42 U.S.C. 9617) is amended by adding

19 after subsection (f) (as added by this Act) the following

20 new subsection:

21 ‘‘(g) COMMUNITY ASSISTANCE GROUPS.—

22 ‘‘(1) CREATION AND RESPONSIBILITIES.—The

23 President shall provide the opportunity for the es24 tablishment of a representative public forum, known

25 as a Community Assistance Group (CAG), to achieve
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1 direct and meaningful consultation with all inter2 ested parties on a regular basis throughout all

3 stages of a response action whenever—

4 ‘‘(A) the President determines such a

5 group will be helpful; or

6 ‘‘(B) 50 citizens, or at least 20 percent of

7 the population of a locality in which the Na8 tional Priorities List facility is located, submit

9 a petition to the President requesting that a

10 Community Assistance Group to be established.

11 ‘‘(2) DUTIES.—Each Community Assistance

12 Group shall provide information and views to the

13 President, and, as appropriate, any or all of the fol14 lowing: the Agency for Toxic Substances and Dis15 ease Registry, State regulatory agencies, Federal

16 and State natural resource trustees, and potentially

17 responsible parties conducting response actions. The

18 information and views reported shall include the var19 ious subjects related to facility remediation, includ20 ing facility health studies, potential remedial alter21 natives, and selection and implementation of reme22 dial and removal actions. The Community Assistance

23 Group shall attempt to achieve consensus among its

24 members before reporting positions to agencies or

25 potentially responsible parties. In cases in which
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1 consensus cannot be reached, the Community Assist2 ance Group shall allow the presentation of divergent

3 views.

4 ‘‘(3) RECOMMENDATIONS FOR USE OF RE5 SOURCES.—To obtain greater community support

6 for remedial decisions affecting future use of land,

7 water, and other resources, the President shall con8 sult with the CAG regarding the current and reason9 ably anticipated future use of such resources at the

10 facility and any institutional controls required to as11 sure that resource use determinations remain in ef12 fect. The CAG may offer recommendations on the

13 current and reasonably anticipated future uses of

14 land, water, and other resources at the facility to the

15 President at any time prior to the selection of a

16 remedy at the facility but may not impair the

17 progress of the remedial action. The recommenda18 tion shall consider at a minimum future facility

19 waste management needs and the criteria in section

20 121(b)(2). The President shall not be bound by any

21 recommendation of the CAG. Should the President

22 make a determination that is inconsistent with a

23 consensus CAG recommendation, the President shall

24 issue a written explanation for the inconsistency.
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1 ‘‘(4) COMMUNITY ASSISTANCE GROUP MEM2 BERS.—Members shall serve on the Community As3 sistance Group without pay. Membership on the

4 Community Assistance Group shall not exceed 20

5 persons. The President shall solicit and accept nomi6 nations for the Community Assistance Group mem7 bership. Final selection of CAG members shall be

8 made by the President. The CAG shall be chaired by

9 a representative of the local community where prac10 tical. Each Community Assistance Group shall, to

11 the extent practicable, reflect the composition of the

12 community near the facility. Local residents shall

13 comprise no less than 50 percent of the total mem14 bership of the CAG. Where relevant, the President

15 shall allow members of the following groups rep16 resentation on a CAG:

17 ‘‘(A) Persons residing or owning residen18 tial property near the facility or persons who

19 may be directly affected by the releases from

20 the facility. At least one person in this group

21 shall represent the Technical Assistance Grant

22 recipient if such a grant has been awarded

23 under subsection (e).
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1 ‘‘(B) Persons who, although not residing

2 or owning property near the facility, may be po3 tentially affected by releases from the facility.

4 ‘‘(C) Members of the local medical commu5 nity practicing in the community or local public

6 health officials.

7 ‘‘(D) Representatives of local Indian tribes

8 or Indian communities.

9 ‘‘(E) Local government which may include

10 pertinent city or county governments, or both,

11 and any other governmental unit which regu12 lates land use in the vicinity of the facility.

13 ‘‘(F) Workers at the facility who will be in14 volved in actual response operations.

15 ‘‘(G) Workers employed at the facility dur16 ing facility operation.

17 ‘‘(H) Facility owners.

18 ‘‘(I) Potentially Responsible Parties

19 (PRPs) who represent, wherever practicable, a

20 balance of PRP interests.

21 ‘‘(J) Members of the local business com22 munity.

23 ‘‘(5) TECHNICAL AND ADMINISTRATIVE SUP24 PORT FOR COMMUNITY ASSISTANCE GROUPS.—

25 Where practical, the President shall provide adminis-
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1 trative services and meeting facilities for Community

2 Assistance Groups. The Administrator of the Envi3 ronmental Protection Agency, the Administrator of

4 the Agency for Toxic Substances and Disease Reg5 istry and the State, as appropriate, shall participate

6 in Community Assistance Group meetings to provide

7 information and technical expertise, but shall not be

8 members of the Community Assistance Group.

9 ‘‘(6) TECHNICAL ASSISTANCE GRANTS.—If a

10 community assistance group exists for a facility, it

11 shall be the sole entity eligible for technical assist12 ance grants specified in this subsection. Wherever a

13 technical assistance grant concerning a facility has

14 been awarded, the recipients of such grant shall co15 ordinate their activities and share their information

16 and technical expertise with the Community Assist17 ance Group. In such cases, one person representing

18 the grantee shall serve on the Community Assistance

19 Group.

20 ‘‘(7) OTHER PUBLIC COMMENT.—The existence

21 of a CAG shall not diminish any other obligation of

22 the President to consider the views of any person in

23 selecting response actions under this Act.’’.
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1 SEC. 105. HAZARD RANKING SYSTEM AND REVISION OF NA2 TIONAL CONTINGENCY PLAN.

3 (a) IN GENERAL.—Section 105(c) (42 U.S.C.

4 9605(c)) is amended by inserting after paragraph (4) the

5 following new paragraphs:

6 ‘‘(5) RISK PRIORITIZATION.—In setting prior7 ities under subsection (a)(8), the President shall

8 place highest priority on facilities with releases of

9 hazardous substances which result in actual ongoing

10 human exposures at levels of public health concern

11 or demonstrated adverse health effects as identified

12 in a health assessment conducted by the Agency for

13 Toxic Substances and Disease Registry.

14 ‘‘(6) PRIOR RESPONSE ACTION.—Any evalua15 tion under this section shall take into account all

16 prior response actions taken at the facility.’’.

17 SEC. 106. DISEASE REGISTRY AND MEDICAL CARE PROVID18 ERS.

19 Section 104(i)(1) (42 U.S.C. 9604(i)(1)) is amended

20 as follows:

21 (1) By amending subparagraph (A) to read as

22 follows:

23 ‘‘(A) in cooperation with the States, for sci24 entific purposes and public health purposes, estab25 lish and maintain a national registry of persons ex26 posed to toxic substances;’’.
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1 (2) In subparagraph (E), by striking ‘‘admis2 sion to hospitals and other facilities and services op3 erated or provided by the Public Health Service’’

4 and inserting ‘‘referral to accredited medical care

5 providers’’.

6 SEC. 107. DETERMINING HEALTH EFFECTS.

7 Section 104(i)(5)(A) (42 U.S.C. 9604(i)(5)(A)) is

8 amended as follows:

9 (1) By striking ‘‘designed to determine the

10 health effects (and techniques for development of

11 methods to determine such health effects) of such

12 substance’’ and inserting ‘‘conducted directly or by

13 means such as cooperative agreements and grants

14 with appropriate public and nonprofit institutions.

15 The research shall be designed to determine the

16 health effects (and techniques for development of

17 methods to determine such health effects) of the

18 substance’’.

19 (2) By redesignating clause (iv) as clause (v).

20 (3) By striking ‘‘and’’ at the end of clause (iii).

21 (4) By inserting after clause (iii) the following

22 new clause:

23 ‘‘(iv) laboratory and other studies which can

24 lead to the development of innovative techniques for
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1 predicting organ-specific, site-specific, and system2 specific acute and chronic toxicity; and’’.

3 SEC. 108. PUBLIC HEALTH AT NPL FACILITIES.

4 Section 104(i)(6) (42 U.S.C. 9604(i)(6)) is amended

5 as follows:

6 (1) By amending subparagraph (A) to read as

7 follows:

8 ‘‘(A)(i) The Administrator of ATSDR shall perform

9 a preliminary public health assessment for each facility,

10 including those facilities owned by any department, agen11 cy, or instrumentality of the United States, on the Na12 tional Priorities List and those sites that are the subject

13 of a petition under section 104(i)(6)(B). The preliminary

14 public health assessment shall be commenced as soon as

15 practicable after each facility is proposed for inclusion on

16 the National Priorities List or ATSDR accepts a petition

17 for a health assessment. Where indicated by the prelimi18 nary public health assessment, ATSDR shall conduct a

19 public health assessment of those sites posing a health

20 hazard which should be considered in selecting the reme21 dial action.

22 ‘‘(ii) The Administrator of ATSDR shall design pub23 lic health assessments that take into account the needs

24 and conditions of the affected community, in cooperation

25 with States.
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1 ‘‘(iii) The Administrator of the Environmental Pro2 tection Agency shall place highest priority on facilities

3 with releases of hazardous substances which result in ac4 tual ongoing human exposures at levels of public health

5 concern or adverse health effects as identified in a public

6 health assessment conducted by the Agency for Toxic Sub7 stances and Disease Registry.’’.

8 (2) In subparagraph (D), by inserting ‘‘(i)’’

9 after ‘‘(D)’’ and by adding the following at the end

10 of the subparagraph: ‘‘the President and the Admin11 istrator of ATSDR shall develop strategies to obtain

12 relevant on-site and off-site characterization data for

13 use in the health assessment, the President shall, to

14 the maximum extent practicable, provide the Admin15 istrator of ATSDR with the data and information

16 necessary to make public health assessments suffi17 ciently prior to the initiation of remedial actions to

18 allow ATSDR to complete these assessments. Where

19 deemed appropriate, the Administrator of ATSDR

20 shall provide to the President as soon as practicable

21 after site discovery, recommendations for sampling

22 environmental media for hazardous substances of

23 public health concern. To the extent feasible, the

24 President shall incorporate such recommendations

25 into its site investigation activities.
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1 ‘‘(ii) In order to improve community involvement in

2 health assessments, the Administrator of ATSDR shall

3 carry out each of the following duties:

4 ‘‘(I) The Administrator of ATSDR shall ac5 tively collect from Community Assistance Groups

6 (‘CAGs’) and from other sources in communities af7 fected or potentially affected by releases of hazard8 ous substances data regarding exposure, relevant

9 human activities, and other factors.

10 ‘‘(II) The Administrator of ATSDR shall design

11 health assessments that take into account the needs

12 and conditions of the affected community. Commu13 nity-based research models, building links to local

14 expertise and local health resources should be used.

15 In preparing such designs, emphasis shall be placed

16 on collection of actual exposure data and sources of

17 multiple exposure shall be considered.’’.

18 (3) In subparagraph (H), by striking ‘‘health

19 assessment’’ each place it appears and inserting

20 ‘‘public health assessment’’.

21 SEC. 109. HEALTH STUDIES.

22 Subparagraph (A) of section 104(i)(7) (42 U.S.C.

23 9604(i)(7)) is amended to read as follows: ‘‘(A) Whenever

24 in the judgment of the Administrator of ATSDR it is ap25 propriate on the basis of the results of a public health
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1 assessment or on the basis of other appropriate informa2 tion, the Administrator of ATSDR shall conduct a human

3 health study of exposure or other health effects for se4 lected groups or individuals in order to determine the de5 sirability of conducting full scale epidemiologic or other

6 health studies of the entire exposed population.’’.

7 SEC. 110. DISTRIBUTION OF MATERIALS TO HEALTH PRO8 FESSIONALS AND MEDICAL CENTERS.

9 Paragraph (14) of section 104(i) (42 U.S.C. 9604(i))

10 is amended to read as follows:

11 ‘‘(14) In implementing this subsection and other

12 health-related provisions of this Act in cooperation with

13 the States, the Administrator of ATSDR shall—

14 ‘‘(A) assemble, develop as necessary, and dis15 tribute to the States, medical colleges, physicians,

16 nursing institutions, nurses, and other health profes17 sionals and medical centers, appropriate educational

18 materials (including short courses) on the medical

19 surveillance, screening, and methods of prevention,

20 diagnosis, and treatment of injury or disease related

21 to exposure to hazardous substances (giving priority

22 to those listed in paragraph (2)), through means the

23 Administrator of ATSDR considers appropriate; and

24 ‘‘(B) assemble, develop as necessary, and dis25 tribute to the general public and to at-risk popu-
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1 lations appropriate educational materials and other

2 information on human health effects of hazardous

3 substances.’’.

4 SEC. 111. GRANT AWARDS, CONTRACTS, AND COMMUNITY

5 ASSISTANCE ACTIVITIES.

6 Section 104(i)(15) (42 U.S.C. 6904(i)(15)) is amend7 ed as follows:

8 (1) By inserting ‘‘(A)’’ before ‘‘The activities’’.

9 (2) In the first sentence, by striking ‘‘coopera10 tive agreements with States (or political subdivisions

11 thereof)’’ and inserting ‘‘grants, cooperative agree12 ments, or contracts with States (or political subdivi13 sions thereof), other appropriate public authorities,

14 public or private institutions, colleges, universities,

15 and professional associations’’.

16 (3) In the second sentence, by inserting ‘‘pub17 lic’’ before ‘‘health assessments’’.

18 (4) By adding at the end the following new sub19 paragraphs:

20 ‘‘(B) When a public health assessment is conducted

21 at a facility on the National Priorities List, or a facility

22 is being evaluated for inclusion on the National Priorities

23 List, the Administrator of ATSDR may provide the assist24 ance specified in this paragraph to public or private non25 profit entities, individuals, and community-based groups
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1 that may be affected by the release or threatened release

2 of hazardous substances in the environment.

3 ‘‘(C) the Administrator of the Agency for Toxic Sub4 stances and Disease Registry, pursuant to the grants, co5 operative agreements and contracts referred to in this

6 paragraph, is authorized and directed to provide, where

7 appropriate, diagnostic services, health data registries and

8 preventative public health education to communities af9 fected by the release of hazardous substances.’’.

10 SEC. 112. REMOVAL ACTIONS.

11 Section 104(c)(1) (42 U.S.C. 9604(c)(1)) is amend12 ed—

13 (1) by striking ‘‘consistent with the remedial

14 action to be taken’’ and inserting ‘‘not inconsistent

15 with any remedial action that has been selected or

16 is anticipated at the time of the removal action,’’;

17 (2) by striking ‘‘$2,000,000’’ and inserting

18 ‘‘$3,000,000’’; and

19 (3) by striking ‘‘12 months’’ and inserting ‘‘two

20 years’’.

21 SEC. 113. HAZARDOUS SUBSTANCE PROPERTY USE.

22 Section 104 (42 U.S.C. 9604) is amended by adding

23 at the end the following:

24 ‘‘(k) HAZARDOUS SUBSTANCE PROPERTY USE.—
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1 ‘‘(1) AUTHORITY OF PRESIDENT TO ACQUIRE

2 EASEMENTS.—In order to prevent exposure to, re3 duce the likelihood of, or otherwise respond to a re4 lease or threatened release of a hazardous substance,

5 the President may acquire, at fair market value, or

6 for other consideration as agreed to by the parties,

7 a hazardous substance easement which restricts, lim8 its, or controls the use of land, water, or other natu9 ral resources, including specifying permissible or im10 permissible uses of land, prohibiting specified activi11 ties upon property, prohibiting the drilling of wells

12 or use of ground water, or restricting the use of sur13 face water.

14 ‘‘(2) USE OF EASEMENTS.—A hazardous sub15 stance easement and notice of a property use restric16 tion under this subsection may be used wherever in17 stitutional controls have been selected as a compo18 nent of a removal or remedial action in accordance

19 with this Act and the National Contingency Plan.

20 Such easements and notices shall not be used in

21 cases in which institutional controls are not relied

22 upon in a removal or remedial action. Whenever

23 such controls are selected as a component of a re24 moval or remedial action, the President shall ensure

25 that the terms of the controls and, as appropriate,
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1 the easement are specified in all appropriate decision

2 documents, enforcement orders, and public informa3 tion regarding the site.

4 ‘‘(3) PERSONS SUBJECT TO EASEMENTS.—A

5 hazardous substance easement shall be enforceable

6 for 20 years and may be renewed for additional 20-

7 year periods (unless terminated and released as pro8 vided for in this section) against any owner of the

9 affected property and all persons who subsequently

10 acquire interest in the property or rights to use the

11 property, including lessees, licensees, and any other

12 person with an interest in the property, without re13 spect to privity or lack of privity of estate or con14 tract, lack of benefit running to any other property,

15 assignment of the easement to another party, or any

16 other circumstance which might otherwise affect the

17 enforceability of easements or similar deed restric18 tions under the laws of the State. The easement

19 shall be binding upon holders of any other interests

20 in the property regardless of whether such interests

21 are recorded or whether they were recorded prior or

22 subsequent to the easement, and shall remain in ef23 fect notwithstanding any foreclosure or other asser24 tion of such interests.
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1 ‘‘(4) CONTENTS OF EASEMENTS.—A hazardous

2 substance easement shall contain, at a minimum—

3 ‘‘(A) a legal description of the property af4 fected;

5 ‘‘(B) the name or names of any current

6 owner or owners of the property as reflected in

7 public land records;

8 ‘‘(C) a description of the release or threat9 ened release; and

10 ‘‘(D) a statement as to the nature of the

11 restriction, limitation, or control created by the

12 easement.

13 ‘‘(5) USE RESTRICTION NOTICE.—Whenever the

14 President acquires a hazardous substance easement

15 or assigns a hazardous substance easement to an16 other party, the President shall record a notice of

17 property use restriction in the public land records

18 for the jurisdiction in which the affected property is

19 located. Such a notice shall specify restrictions, limi20 tations, or controls on the use of land, water, or

21 other natural resources provided for in the hazard22 ous substance easement.

23 ‘‘(6) FILING OF NOTICE.—Wherever recording

24 in the public land records is required under this sub25 section, the President shall file the notice or other
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1 instrument in the appropriate office within the State

2 (or governmental subdivision) in which the affected

3 property is located, as designated by State law. If

4 the State has not by law designated one office for

5 the recording of interests in real property or claims

6 or rights burdening real property, the document or

7 notice shall be filed in the office of the clerk of the

8 United States district court for the district in which

9 the affected property is located.

10 ‘‘(7) METHODS OF ACQUIRING EASEMENTS.—

11 The President may acquire a hazardous substance

12 easement by purchase or other agreement, by con13 demnation, or by any other means permitted by law.

14 Compensation for such easement shall be at fair

15 market value, or for other consideration as agreed to

16 by the parties, for the interest acquired. The direct

17 cost of such easements, ensuring adequate public no18 tice of such easements, and otherwise tracking and

19 maintaining the protections afforded by the ease20 ments shall be considered response costs which are

21 recoverable under this Act.

22 ‘‘(8) ASSIGNMENT OF EASEMENTS TO PARTIES

23 OTHER THAN THE PRESIDENT.—

24 ‘‘(A) AUTHORITY TO ASSIGN.—The Presi25 dent may assign an easement acquired under
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1 this subsection to a State or other governmental

2 entity that has the capability of effectively en3 forcing the easement over the period of time

4 necessary to achieve the purposes of the ease5 ment. In the case of any assignment, the ease6 ment shall be fully enforceable by the assignee.

7 Any assignment of such an easement by the

8 President may be made by following the same

9 procedures as are used for the transfer of an

10 interest in real property to a State under sec11 tion 104(j).

12 ‘‘(B) EFFECT OF ASSIGNMENT.—Any in13 terest in property granted to a State or other

14 governmental entity which restricts, limits, or

15 controls the use of land, water, or other natural

16 resources in order to prevent exposure to, re17 duce the likelihood of, or otherwise respond to,

18 a release or threatened release of a hazardous

19 substance, and which is expressly designated in

20 writing as a hazardous substance easement

21 within the meaning of this paragraph, shall cre22 ate the same rights, have the same legal effect,

23 and be enforceable in the same manner as a

24 hazardous substance easement held by the

25 President regardless of whether the interest in
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1 property is otherwise denominated as an ease2 ment, covenant, or any other form of property

3 right.

4 ‘‘(9) PUBLIC NOTICE.—Not later than 180 days

5 after the date of the enactment of this subsection,

6 the President shall issue regulations regarding the

7 procedures to be used for public notice of proposed

8 property use restrictions. Such regulations shall en9 sure that before acquiring a hazardous substance

10 easement, and before recording any notice of such

11 easement, the President will give notice and an op12 portunity to comment to the owner of the affected

13 property, all other persons with recorded interests in

14 the property, any lessees or other authorized occu15 pants of the property known to the President, the

16 State and any municipalities in which the property

17 is located, any relevant community assistance group

18 established under section 117, the affected commu19 nity, and the general public.

20 ‘‘(10) TERMINATION OF EASEMENTS.—An ease21 ment acquired under this subsection shall remain in

22 force until it expires by its terms or until the holder

23 of the easement executes and records a termination

24 and release in accordance with the terms of the ease25 ment and approved by the Administrator of the En-
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1 vironmental Protection Agency or the relevant as2 signee. Such termination shall be recorded in the

3 same manner as the easement.

4 ‘‘(11) ENFORCEMENT.—

5 ‘‘(A) EFFECT OF VIOLATIONS.—Violation

6 of any restriction, limitation, or control imposed

7 under a hazardous substance easement shall

8 have the same effect as failure to comply with

9 an order issued under section 106 and relief

10 may be sought either in enforcement actions

11 under section 106(b)(1), section 120(g), or sec12 tion 127(e) or in citizens suits under section

13 310. No citizens suit under section 310 to en14 force such a notice may be commenced if the

15 holder of the easement has commenced and is

16 diligently prosecuting an action in court to en17 force the easement.

18 ‘‘(B) ENFORCEMENT ACTIONS.—The

19 President may take appropriate enforcement ac20 tions to ensure compliance with the terms of

21 the easement whenever the Administrator of the

22 Environmental Protection Agency determines

23 that the terms set forth in the easement are

24 being violated. If the easement has been as25 signed to a party other than the President and
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1 that party has not taken appropriate enforce2 ment actions, the President may notify the as3 signee of the violation. If the party does not

4 take appropriate enforcement actions within 30

5 days of such notification, or sooner in the case

6 of an imminent hazard, the President may initi7 ate such enforcement actions.

8 ‘‘(12) APPLICABILITY OF OTHER PROVISIONS.—

9 Holding a hazardous substance easement shall not

10 subject either the holder thereof or the owner of the

11 affected property to liability under section 107. Any

12 such easement acquired by the President shall not

13 be subject to the requirements of section 104(j) or

14 120(h).’’.

15 SEC. 114. JUDICIAL REVIEW OF REMEDY.

16 Section 113(h) (42 U.S.C. 9613(h)) is amended by

17 adding the following new paragraph at the end thereof:

18 ‘‘(6) Any action to review a final record of deci19 sion regarding the selection of a remedy under this

20 Act.’’.

21 SEC. 115. EFFECTIVE DATE AND TRANSITION RULES.

22 (a) EFFECTIVE DATE.—The amendments made by

23 this title shall become effective upon the date of enactment

24 of this Act for facilities where no final record of decision

25 under section 121 of the Comprehensive Environmental
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1 Response, Compensation, and Liability Act of 1980 has

2 been published.

3 (b) REVIEW OF ONGOING REMEDIAL ACTIONS.—(1)

4 Not later than 270 days after the date of the enactment

5 of this Act, any person with a substantial interest at a

6 facility or any State or any Federal official overseeing a

7 federally-funded remediation at a site where a final record

8 of decision under section 121 of the Comprehensive Envi9 ronmental Response, Compensation, and Liability Act of

10 1980 has been published, but remedial action has not been

11 completed (including operations and maintenance), may

12 petition the President for review of the selected remedial

13 action and request that an alternative remedy consistent

14 with the amendments made by this title be selected. Not

15 later than 180 days after receipt of such a request, the

16 President shall issue a written determination regarding

17 the request in accordance with this subsection.

18 (2) As part of a review conducted under paragraph

19 (1) with respect to ongoing remedial measures, if the

20 President determines that selection of an alternative rem21 edy consistent with the amendments made by this title will

22 result in a total life-cycle cost savings relative to the rem23 edy selected in the applicable record of decision of at least

24 $1,000,000 and the alternative remedy would protect

25 human health and the environment from realistic and sig-
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1 nificant risks, the President shall select such an alter2 native and modify the record of decision accordingly. In

3 determining life-cycle cost savings, the President shall de4 duct administrative and other costs to States, Federal

5 agencies, and other parties encumbered by changing rem6 edies.

7 (3) Decisions on petitions submitted under this sub8 section shall be subject to judicial review if acceptance of

9 such petition is refused or approval of such petition is de10 nied.

11 (4) At any site where a petition to review the selected

12 remedial action is accepted by the President, the President

13 shall provide an opportunity for public notice and com14 ment and an opportunity to establish a Community Assist15 ance Group as provided for in section 117(g) of the Com16 prehensive Environmental Response, Compensation, and

17 Liability Act of 1980.

18 (5) Nothing in this section shall prohibit the Presi19 dent from modifying records of decision under other appli20 cable authority or procedures.

21 TITLE II—LIABILITY

TITLE II—LIABILITY

Sec. 201. Retroactive liability discount.

Sec. 202. Reimbursement for certain retroactive municipal landfill liability.

Sec. 203. Additional liability exemptions and limitations.

Sec. 204. Clarifications of certain liability.

Sec. 205. Illegal activities.

Sec. 206. Amendments to section 106.

Sec. 207. Allocation procedures.
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Sec. 208. Civil proceedings.

Sec. 209. Limitations on contribution actions.

Sec. 210. Liability of response action contractors.

Sec. 211. Enhancement of settlement authorities.

Sec. 212. Professional services.

Sec. 213. Final covenants.

Sec. 214. Expedited final settlements.

Sec. 215. Clarification of liability for recycling transactions.

Sec. 216. Information gathering and access.

1 SEC. 201. RETROACTIVE LIABILITY DISCOUNT.

2 (a) LIABILITY DISCOUNT.—Section 112 (42 U.S.C.

3 9612) is amended by adding the following new subsection

4 at the end:

5 ‘‘(g) REIMBURSEMENT FOR RETROACTIVE LIABIL6 ITY.—(1) In the case of a facility or vessel not owned by

7 the United States listed on the National Priorities List,

8 a person (other than the United States or any department,

9 agency, or instrumentality of the United States) shall be

10 eligible for reimbursement from the Fund for 50 percent

11 of any costs referred to in section 107(a) paid or incurred

12 by such person after October 18, 1995, to the extent

13 that—

14 ‘‘(A) such person’s liability under section 107 is

15 attributable to a status or activity of such person (as

16 described in paragraph (1), (2), (3), or (4) of sub17 section (a)) that existed or occurred prior to Janu18 ary 1, 1987, and

19 ‘‘(B) such costs are attributable to response ac20 tivities carried out after October 18, 1995.
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1 ‘‘(2) Any person eligible for reimbursement under

2 this subsection may apply to the President for such reim3 bursement in accordance with subsection (i). This sub4 section shall apply to judicial and administrative orders

5 issued, and settlements entered into, under section 107 or

6 section 106 before, on, or after the enactment of this sub7 section.’’

8 SEC. 202. REIMBURSEMENT FOR CERTAIN RETROACTIVE

9 MUNICIPAL LANDFILL LIABILITY.

10 Section 112 (42 U.S.C. 9612) is amended by adding

11 the following new subsection at the end:

12 ‘‘(h) MUNICIPAL LANDFILLS.—Any person (other

13 than the United States or any department, agency, or in14 strumentality of the United States) incurring costs for the

15 performance of a response action after October 18, 1995,

16 in compliance with an order issued under section 106 or

17 pursuant to a settlement with the United States or with

18 any State or otherwise shall complete the person’s obliga19 tions under such order or settlement. Such person shall

20 be eligible for reimbursement from the fund for any por21 tion of the costs incurred for the performance of such re22 sponse action if such person is not liable for such costs

23 by reason of the municipal landfill exemption under sec24 tion 107(n)(2). Any person eligible for reimbursement
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1 under this subsection may apply to the President for such

2 reimbursement in accordance with subsection (i).’’.

3 (b) RULES FOR REIMBURSEMENT UNDER SUB4 SECTIONS (g) and (h).—Section 112 (42 U.S.C. 9612) is

5 amended by adding the following new subsection at the

6 end:

7 ‘‘(i) APPLICATION FOR REIMBURSEMENT; RULES.—

8 Reimbursement under subsections (g) and (h) shall be

9 made upon receipt by the President of an application from

10 the person requesting reimbursement. Such reimburse11 ment shall be made pursuant to such rules as may be es12 tablished by the President under this subsection. The

13 President shall promulgate such rules within 6 months

14 after the enactment of the Reform of Superfund Act of

15 1995. Such rules shall, at a minimum, require that an ap16 plication for reimbursement contain such documentation

17 of costs and expenditures as the President deems nec18 essary to assure compliance with this subsection. In the

19 case of persons obligated to make more than one payment

20 under section 107 or section 106 after the enactment of

21 this subsection and persons obligated to incur response

22 costs under section 106 after the enactment of this sub23 section, such an application may be made no more fre24 quently than every 6-months after such payments are

25 made or such costs are incurred, commencing 6 months
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1 after the enactment of this subsection. The President shall

2 develop and implement such procedures as may be nec3 essary to provide reimbursement to such persons in an ex4 peditious manner. No reimbursement shall be made under

5 this subsection unless the President determines that such

6 costs are consistent with the National Contingency Plan.’’.

7 SEC. 203. ADDITIONAL LIABILITY EXEMPTIONS AND LIMI8 TATIONS.

9 (a) IN GENERAL.—Section 107 is amended by adding

10 the following at the end thereof:

11 ‘‘(n) EXEMPTIONS AND LIMITATIONS OF LIABIL12 ITY.—

13 ‘‘(1) DE MINIMIS CONTRIBUTOR EXEMPTION

14 FROM RETROACTIVE LIABILITY.—In the case of a fa15 cility or vessel not owned by the United States listed

16 on the National Priorities List, no person described

17 in paragraph (3) or (4) of subsection (a) (other than

18 the United States or a department, agency or instru19 mentality of the United States) shall be liable under

20 subsection (a) for any costs under this section if no

21 activity of such person described in such paragraph

22 (3) or (4)—

23 ‘‘(A) occurred after January 1, 1987, and

24 ‘‘(B) resulted in the disposal or treatment

25 of more than 1 percent of the volume of mate-
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1 rials containing hazardous substances at such

2 facility or vessel.

3 ‘‘(2) MUNICIPAL LANDFILLS.—

4 ‘‘(A) EXEMPTION FROM LIABILITY.—Sub5 ject to subparagraph (B), no person (other than

6 the United States or a department, agency or

7 instrumentality of the United States) shall be

8 liable for costs or damages referred to in sub9 section (a) with respect to a release or threat10 ened release of a hazardous substance from a

11 facility that—

12 ‘‘(i) on June 15, 1995, was listed on

13 the National Priorities List; and

14 ‘‘(ii) on or before June 15, 1995, was

15 authorized by the appropriate State or

16 local government authority to accept, and

17 did accept for disposal household waste

18 (from single and multiple dwellings, hotels,

19 motels, and other residential sources).

20 ‘‘(B) LIMITATION.—The exemption pro21 vided by subparagraph (A) shall not apply with

22 respect to a release or threatened release of a

23 hazardous substance from—

24 ‘‘(i) a facility owned or operated by a

25 department, agency, or instrumentality of
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1 the United States (including the executive,

2 legislative, and judicial branches of govern3 ment); or

4 ‘‘(ii) a facility that is subject to regu5 lation under subtitle C of the Solid Waste

6 Disposal Act (42 U.S.C. 6921–6939e).

7 ‘‘(3) MUNICIPAL SOLID WASTE AND SEWAGE

8 SLUDGE.—No person (other than the United States

9 or a department, agency or instrumentality of the

10 United States) shall be liable under this section for

11 costs or damages at any facility not owned by the

12 United States listed on the National Priorities List

13 to the extent liability at such facility is based solely

14 on paragraph (3) or (4) of this subsection if such

15 person—

16 ‘‘(A) arranged for disposal, treatment, or

17 transport for disposal or treatment, or accepted

18 for transport for disposal or treatment of only

19 municipal solid waste or sewage sludge owned

20 or possessed by such person, and

21 ‘‘(B) is (i) the owner, operator, or lessee of

22 residential property, (ii) a small business; or

23 (iii) a small non-profit organization.

24 This paragraph shall have no effect on the liability

25 of any other person.
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1 ‘‘(4) DE MICROMIS EXEMPTION.—No person

2 (other than the United States or a department,

3 agency or instrumentality of the United States) shall

4 be liable under this section for costs or damages at

5 any facility not owned by the United States listed on

6 the National Priorities List to the extent liability at

7 such facility is based solely on paragraph (3) or (4)

8 of subsection (a), and the person can demonstrate

9 that it arranged for disposal or treatment, or trans10 port for disposal or treatment or accepted for trans11 port for disposal or treatment, 110 gallons or less of

12 liquid materials containing hazardous substances or

13 pollutants or contaminants or less, 200 pounds or

14 less of solid materials containing hazardous sub15 stances or pollutants or contaminants, or such great16 er or lesser amount as the Administrator may deter17 mine by regulation. The exemption provided by this

18 paragraph shall not apply where—

19 ‘‘(A) such material has contributed or

20 could contribute significantly to the costs of re21 sponse at the facility, or

22 ‘‘(B) the person has failed to respond fully

23 and completely to information requests or ad24 ministrative subpoenas by the United States or
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1 by the allocator in an allocation proceeding

2 under this Act.

3 ‘‘(5) FACILITIES ACQUIRED BY INHERITANCE

4 OR BEQUEST.—No person shall be liable under this

5 section for costs or damages at any facility listed on

6 the National Priorities List to the extent liability at

7 such facility is based solely on the person’s status as

8 an owner under paragraph (1) of subsection (a) for

9 a release or threat of release from the facility, and

10 the person acquired the facility by inheritance or be11 quest if the person—

12 ‘‘(A) acquired the real property on which

13 the facility concerned is located after disposal

14 or placement of the hazardous substance took

15 place;

16 ‘‘(B) did not cause or contribute to the re17 lease or threat of release; and

18 ‘‘(C) exercised due care with respect to the

19 hazardous substance concerned, including pre20 cautions against foreseeable acts of third par21 ties, taking into consideration the characteris22 tics of such hazardous substance, in light of all

23 relevant facts and circumstances.

24 ‘‘(6) FEDERAL OR STATE GOVERNMENTAL EN25 TITIES.—No Federal or State governmental entity
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1 or municipality shall be liable under this section for

2 costs or damages at any facility listed on the Na3 tional Priorities List to the extent the liability at

4 such facility is based solely on its—

5 ‘‘(A) ownership of a road, street, or other

6 right of way or public transportation route

7 (other than railroad rights of way and railroad

8 property) over which hazardous substances are

9 transported; or

10 ‘‘(B) granting of a license or permit to

11 conduct business.

12 ‘‘(7) 10 PERCENT LIMITATION FOR MSW AND

13 SEWAGE SLUDGE.—No person (other than the Unit14 ed States or a department, agency or instrumental15 ity of the United States) shall be liable for more

16 than 10 percent of total response costs at a facility

17 listed on the National Priorities List, in the aggre18 gate, to the extent the person is liable solely under

19 paragraph (3) or (4) of subsection (a), and the ar20 rangement for disposal, treatment, or transport for

21 disposal or treatment, or the acceptance for trans22 port for disposal or treatment, involved only munici23 pal solid waste or sewage sludge. In any case in

24 which more than one person at a facility comes with25 in the coverage of this paragraph, the 10 percent
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1 limitation on liability shall apply to the aggregate

2 liability of all such persons. The provisions of para3 graph (1) of section 203(c) of the Reform of

4 Superfund Act of 1995 shall not apply with respect

5 to any person exempt from liability under this para6 graph.

7 ‘‘(8) LIMITATION FOR CERTAIN TAX EXEMPT

8 ORGANIZATIONS.—A person’s liability under this sec9 tion with respect to a release or threatened release

10 from a vessel or facility listed on the National Prior11 ities List shall be limited to the lesser of the fair

12 market value of the vessel or facility or the actual

13 proceeds of the sale of the vessel or facility received

14 by the person, to the extent such liability is based

15 solely on the person’s status under paragraph (1) of

16 subsection (a) as owner of the vessel or facility if the

17 person—

18 ‘‘(A) holding title, either outright or in

19 trust, to the vessel or facility is an organization

20 described in section 501(c)(3) of the Internal

21 Revenue Code of 1986 and exempt from tax

22 under section 501(a) of such Code and holds

23 such title as a result of a charitable donation

24 that qualifies under sections 170, 2055, or

25 2522 of such Code;
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1 ‘‘(B) exercised due care with respect to the

2 hazardous substance concerned, including pre3 cautions against foreseeable acts of third par4 ties, taking into consideration the characteris5 tics of such hazardous substance, in light of all

6 relevant facts and circumstances;

7 ‘‘(C) did not cause or contribute to the re8 lease or threat of release; and

9 ‘‘(D) acquired the real property on which

10 the facility concerned is located, or acquired the

11 vessel, after disposal or placement of the haz12 ardous substance took place.

13 ‘‘(9) CONSTRUCTION CONTRACTOR EXEMP14 TION.—There shall be no liability under subsection

15 (a) of this section based solely on a person’s con16 struction activities at a facility if such person can

17 demonstrate by a preponderance of evidence that

18 such construction activities were specifically directed

19 by and carried out in accordance with a contract

20 with an owner or operator of the facility.

21 ‘‘(10) CONTIGUOUS PROPERTIES.—A person

22 (other than the United States or a department,

23 agency or instrumentality of the United States) who

24 owns or operates real property that is contiguous to

25 or otherwise similarly situated with respect to real
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1 property on which there has been a release or

2 threatened release of a hazardous substance and

3 that is or may be contaminated by such release shall

4 not be liable under subsection (a)(1) or (2) by rea5 son of such ownership or operation solely by reason

6 of such contamination if such person—

7 ‘‘(A) did not cause, contribute, or consent

8 to the release or threatened release, and

9 ‘‘(B) provides full cooperation, assistance,

10 and facility access to persons authorized to con11 duct response actions at the facility.

12 The President may issue an assurance of no enforce13 ment action under this Act to any such person and

14 may grant any such person protection against cost

15 recovery and contribution actions pursuant to sec16 tion 113(f)(2). Such person may also petition the

17 President to exclude from the description of a Na18 tional Priorities List site such contiguous real prop19 erty, if such property is or may be contaminated

20 solely by ground water that flows under such prop21 erty and is not used as a source of drinking water.

22 The President may grant such a petition pursuant

23 to such procedures as he deems appropriate.

24 ‘‘(11) LIMITATION.—This subsection shall not

25 apply to any person who impedes the performance of
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1 a response action or natural resource restoration at

2 the facility concerned.

3 ‘‘(12) LIMITATION ON LIABILITY OF RAILROAD

4 OWNERS.—Notwithstanding section 107(a)(1), a

5 person that does not impede the performance of a

6 response action or natural resource restoration shall

7 not be liable under this Act to the extent that liabil8 ity is based solely on the status of the person as a

9 railroad owner or operator of a spur track, including

10 a spur track over land subject to an easement, to a

11 facility that is owned or operated by a person that

12 is not affiliated with the railroad owner or operator,

13 if—

14 ‘‘(A) the spur track provides access to a

15 main line or branch line track that is owned or

16 operated by the railroad;

17 ‘‘(B) the spur track is 10 miles long or

18 less; and

19 ‘‘(C) the railroad owner or operator does

20 not cause or contribute to a release or threat21 ened release at the spur track.’’.

22 (b) CONFORMING AMENDMENT.—Section 107(a) is

23 amended by striking ‘‘, and subject only to the defenses

24 set forth in subsection (b) of this section’’.
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1 (c) EFFECTIVE DATE AND TRANSITION RULES.—

2 The amendments made by this section shall take effect

3 with respect to actions under section 106 or 107 of the

4 Comprehensive Environmental Response, Compensation,

5 and Liability Act of 1980 which become final on or after

6 the date of the enactment of this Act, except that such

7 amendments shall not apply in the following:

8 (1) Any action brought by any person other

9 than the United States under section 107 of such

10 Act for contribution to costs or damages incurred by

11 such person before October 18, 1995.

12 (2) Any action seeking indemnity, rights of de13 fense or other rights under any contract of indem14 nification or insurance.

15 SEC. 204. CLARIFICATIONS OF CERTAIN LIABILITY.

16 (a) AMOUNT OF LIABILITY.—Section 107(c)(3) (42

17 U.S.C. 9607(c)(3)) is amended in the first sentence—

18 (1) by inserting ‘‘, in addition to liability for

19 any response costs incurred by the United States as

20 a result of such failure to take proper action,’’ after

21 ‘‘person’’ the second time it appears; and

22 (2) by striking ‘‘at least equal to,’’ and all that

23 follows through the end of the sentence and insert24 ing ‘‘up to three times the amount of such response

25 costs.’’.
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1 (b) CLARIFICATION OF COMMON CARRIER LIABIL2 ITY.—Section 107(b)(3) is amended by striking out ‘‘from

3 a published tariff and acceptance for’’ and inserting ‘‘ex4 clusively from a contract for’’.

5 (c) OTHER CLARIFICATIONS.—Section 107(a) (42

6 U.S.C. 9607(a)) is amended as follows:

7 (1) In paragraph (1), by striking ‘‘and’’ and in8 serting ‘‘or’’.

9 (2) In paragraph (4)(B)—

10 (A) by striking ‘‘other’’ both places it ap11 pears; and

12 (B) by inserting ‘‘, other than the United

13 States, a State, or an Indian tribe,’’ before the

14 phrase ‘‘consistent with the national contin15 gency plan’’.

16 (3) In paragraph (4), by striking ‘‘by such per17 son,’’ and all that follows through ‘‘shall be liable

18 for—’’ and inserting in lieu thereof the following:

19 ‘‘by such person—

20 from which there is a release, or a threatened release, that

21 causes the incurrence of response costs, of a hazardous

22 substance, shall be liable for—’’.

23 (4) By designating the text beginning with

24 ‘‘The amounts recoverable’’ and ending with ‘‘this
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1 subsection commences.’’ as paragraph (5) and align2 ing the margin of such text with paragraph (4).

3 SEC. 205. ILLEGAL ACTIVITIES.

4 Title III is amended by adding the following new sec5 tion at the end thereof:

6 ‘‘SEC. 313. ILLEGAL ACTIVITIES.

7 ‘‘Section 107(n) and section 112(g) shall not apply

8 to any person whose liability under section 107(a) is based

9 on any act, omission, or status that is determined by a

10 court of competent jurisdiction, within the applicable stat11 ute of limitation, to have been illegal at the time the act

12 or omission occurred or the status existed.’’.

13 SEC. 206. AMENDMENTS TO SECTION 106.

14 (a) ADMINISTRATIVE ORDERS.—Section 106(a) (42

15 U.S.C. 9606(a)) is amended by adding at the end the fol16 lowing: ‘‘The President may not amend such administra17 tive orders or issue additional orders relating to the facil18 ity without a subsequent finding of an imminent and sub19 stantial endangerment. No order may be issued under this

20 section against any person who would not be liable for

21 costs or damages referred to in section 107(a). In any case

22 in which the President issues an order to a person under

23 this subsection, the President shall provide information

24 concerning the evidence that indicates that each element

25 of liability contained in section 107(a) is present.’’.
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1 (b) SUFFICIENT CAUSE.—Section 106(b)(1) (42

2 U.S.C. 9606(b)(1)) is amended—

3 (1) by inserting ‘‘(A)’’ after ‘‘(b)(1)’’;

4 (2) by striking ‘‘to enforce such order’’;

5 (3) by inserting before the period ‘‘, or be re6 quired to comply with such order, or both, even if

7 another person has complied, or is complying, with

8 the terms of the same order or another order per9 taining to the same facility and release or threatened

10 release’’; and

11 (4) by inserting at the end the following:

12 ‘‘(B) For purposes of this subsection and section

13 107(c)(3), a ‘sufficient cause’ includes, without limitation,

14 an objectively reasonable belief by the person to whom the

15 order is issued that—

16 ‘‘(i) the person is not liable for any response

17 costs under section 107; or

18 ‘‘(ii) that the action to be performed pursuant

19 to the order is inconsistent with the national contin20 gency plan.

21 (c) REIMBURSEMENT.—Subsection (b) of section 106

22 (42 U.S.C. 9606(b)) is further amended in the first sen23 tence of paragraph (2)(A) by striking ‘‘completion of’’ and

24 inserting ‘‘the President determines that such person has

25 completed’’.
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1 (d) LIMITATION ON AUTHORITY FOR PRE-ENACT2 MENT RELEASES.—Section 106 is amended by adding the

3 following new subsection at the end thereof:

4 ‘‘(d) LIMITATION ON AUTHORITY FOR PRE-ENACT5 MENT RELEASES AT NON-NPL FACILITIES.—

6 ‘‘(1) POST-ENACTMENT ORDERS.—Except in

7 the case of a facility listed on the National Priorities

8 List, no orders issued under this section on or after

9 the date of enactment of this subsection addressing

10 individual or cumulative releases of hazardous sub11 stances from a facility before the enactment of this

12 subsection, may require:

13 ‘‘(A) aggregate expenditures to be made at

14 such facility pursuant to this section in excess

15 of $3,000,000; or

16 ‘‘(B) response actions to be taken after the

17 date 2 years after the date on which the order

18 is issued.

19 ‘‘(2) PRE-ENACTMENT ORDERS.—Except in the

20 case of a facility listed on the National Priorities

21 List, any order issued under this section before the

22 enactment of this subsection addressing individual or

23 cumulative releases of hazardous substances from a

24 facility before the enactment of this subsection shall

25 cease to have any force and effect after the date on
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1 which aggregate expenditures made at such facility

2 after the enactment of this subsection pursuant to

3 such order have reached $3,000,000.’’

4 SEC. 207. ALLOCATION PROCEDURES.

5 Title I is amended by adding after section 127 (as

6 added by section 101) the following new section:

7 ‘‘SEC. 128. ALLOCATIONS AT MULTI-PARTY FACILITIES.

8 ‘‘(a) TRIGGERING OF ALLOCATION PROCESS.—

9 ‘‘(1) MANDATORY ALLOCATIONS.—Except as

10 provided in paragraph (3) of this subsection, the

11 President shall initiate the allocation process estab12 lished under this section—

13 ‘‘(A) for any response action involving two

14 or more potentially responsible parties for which

15 total costs exceed $1,000,000 in the aggregate

16 when such an allocation is requested in writing

17 by any potentially responsible party who has (i)

18 incurred response costs with respect to a re19 sponse action, (ii) resolved its liability to the

20 United States with respect to a response action,

21 or (iii) received an order pursuant to section

22 106 of this Act; and

23 ‘‘(B) for any response action involving two

24 or more potentially responsible parties for which
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1 there is a Fund reimbursable share under sub2 section (n).

3 ‘‘(2) DISCRETIONARY ALLOCATIONS.—For any

4 response action involving two or more potentially re5 sponsible parties other than a response action de6 scribed in subparagraph (A) or (B) of paragraph

7 (1), the President may, at the request in writing of

8 any potentially responsible party, initiate the alloca9 tion process established under this section if the

10 President deems it appropriate.

11 ‘‘(3) EXCLUDED FACILITIES.—The allocation

12 process established under this section shall not apply

13 to any response action for which there has been a

14 final settlement, decree, or order that determines the

15 allocated shares of all potentially responsible parties

16 with respect to such response action as of the date

17 of the enactment of this section.

18 ‘‘(4) SCOPE OF ALLOCATIONS.—Each allocation

19 under this section shall apply to the costs of all re20 sponse actions at a facility that are selected by the

21 President after the date of the enactment of this

22 section unless the allocator determines, in his sole

23 discretion, that it should apply only to one or more

24 of such response actions at the facility.
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1 ‘‘(5) OTHER MATTERS.—Except as otherwise

2 expressly provided, nothing in this section shall limit

3 or affect—

4 ‘‘(A) the President’s obligation to initiate

5 the allocation process for response actions at fa6 cilities that have been the subject of partial or

7 expedited settlements;

8 ‘‘(B) the ability of any person to resolve its

9 liability at a facility to any other person at any

10 time before initiation or completion of the allo11 cation process;

12 ‘‘(C) the validity, enforceability, finality or

13 merits of any judicial or administrative order,

14 judgment, or decree issued prior to the date of

15 enactment of this Act with respect to liability

16 under this Act; or

17 ‘‘(D) the validity, enforceability, finality or

18 merits of any pre-existing contract or agree19 ment relating to any allocation of responsibility

20 or any indemnity for, or sharing of, any re21 sponse costs under this Act.

22 ‘‘(b) MORATORIUM ON LITIGATION AND ENFORCE23 MENT.—(1) No person may commence any civil action or

24 assert any claim under this Act seeking recovery of any

25 response costs, or contribution toward such costs, in con-
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1 nection with any response action for which the President

2 has initiated an allocation, until 180 days after issuance

3 of the allocator’s report under subsection (i)(5), or of a

4 second or subsequent report under subsection (p).

5 ‘‘(2) If any such action or claim under this Act is

6 pending (A) upon the date of enactment of the Reform

7 of Superfund Act of 1995, or (B) upon initiation of an

8 allocation, then such action or claim, including any pend9 ent claim under State law over which a court is exercising

10 jurisdiction, shall be stayed until 90 days after the issu11 ance of the allocator’s report under subsection (i)(5), or

12 of a second or subsequent report under subsection (p), un13 less the court determines that a stay will result in manifest

14 injustice.

15 ‘‘(3) Any applicable limitations period with respect to

16 actions subject to paragraph (1) shall be tolled from the

17 earlier of (A) the date of listing of the facility on the Na18 tional Priorities List, where such listing occurs after the

19 date of enactment of this Act, or (B) the commencement

20 of the allocation process pursuant to this section, until 90

21 days after the issuance of the allocator’s report under sub22 section (i)(5), or of a second or subsequent report under

23 subsection (p).

24 ‘‘(4) After the date of enactment of the Reform of

25 Superfund Act of 1995, the Administrator shall not issue
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1 any order under section 106 of this Act to any persons

2 or at any facility that is the subject of an allocation under

3 subsection (a) until 90 days after the issuance of the

4 allocator’s report under subsection (i)(5), or of a second

5 or subsequent report under subsection (p), except an order

6 in which the Administrator requires the performance of

7 a removal action that is necessary to address a situation

8 at the facility that actually presents substantial danger to

9 public health or welfare or the environment.

10 ‘‘(5) Except as otherwise expressly provided in this

11 Act, nothing in this section shall in any way limit or affect

12 the President’s authority to exercise the powers conferred

13 by sections 103, 104, 105, 106, or 122 of this Act, or

14 to commence an action against a party where there is a

15 contemporaneous filing of a judicial consent decree resolv16 ing that party’s liability, or to file a proof of claim or take

17 other action in a proceeding under title 11 of the United

18 States Code.

19 ‘‘(6) Except as otherwise expressly provided, the allo20 cation process established in this section shall not be con21 strued to modify or affect in any way the principles of

22 liability under this title as determined by the courts of the

23 United States.

24 ‘‘(c) ALLOCATION PROCESS.—
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1 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At each

2 facility that is the subject of an allocation under

3 subsection (a), the President shall, as soon as prac4 ticable but no later than 60 days after the receipt

5 of a request for allocation, initiate the allocation

6 process by commencing a comprehensive search for

7 all potentially responsible parties at the facility

8 under the authority of section 104 of this Act. Any

9 person may submit information to the President con10 cerning any potentially responsible party at the facil11 ity, and the President shall consider such informa12 tion in carrying out the search.

13 ‘‘(2) INITIAL LIST OF PARTIES.—As soon as

14 practicable, but not later than 120 days after the

15 commencement of the potentially responsible party

16 search, the President shall issue a list of all poten17 tially responsible parties preliminarily identified at

18 the facility and provide each person named on the

19 list with (A) a copy of the list, along with all infor20 mation then available to the President concerning

21 the basis or potential basis for each party’s liability

22 at the facility and whether such person is eligible for

23 an exemption from liability under section 107(n) and

24 (B) a list of at least 10 neutral parties (i) who are

25 not employees of the United States, (ii) who are, in
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1 the judgment of the President, qualified to perform

2 an allocation at the facility, and (iii) to the extent

3 possible, who maintain an office in the general geo4 graphic area of the facility.

5 ‘‘(d) SELECTION OF ALLOCATOR.—As soon as prac6 ticable after the receipt of the initial list specified in sub7 section (c)(2), the potentially responsible parties prelimi8 narily identified by the President, voting on a per capita

9 basis, shall (1) select by plurality vote a person to serve

10 as allocator and then (2) promptly notify the President

11 of such selection. The allocator shall be selected from ei12 ther (A) the list of neutral parties provided by the Presi13 dent, or (B) a current list of neutrals maintained by the

14 American Arbitration Association, the Center for Public

15 Resources, the Administrative Conference of the United

16 States, or other non-profit or governmental organizations

17 of comparable standing. If the President determines that

18 the person selected is unqualified to serve, he shall

19 promptly notify all persons preliminarily identified as po20 tentially responsible parties at the facility, who shall then

21 select another person: Provided, however, That the Presi22 dent may make no more than two such determinations at

23 any facility. If the President does not receive notice that

24 an allocator has been selected within 60 days of the issu25 ance of the initial list specified in subsection (c)(2), or of
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1 the receipt of notice of a determination under the preced2 ing sentence, then the President shall promptly designate

3 and select the person to serve as allocator. Any action

4 taken by the President under this paragraph shall not be

5 subject to judicial review.

6 ‘‘(e) RETENTION OF ALLOCATOR.—Upon selection of

7 the allocator, the President shall promptly—

8 ‘‘(1) contract with the selected allocator for the

9 provision of allocation services in accordance with

10 the provisions of this section, provided that such

11 contract shall not restrict the allocator’s broad dis12 cretion to conduct the allocation process in a fair, ef13 ficient, and impartial manner; and

14 ‘‘(2) notify all persons preliminarily identified

15 as potentially responsible parties at the facility that

16 the allocator has been retained, and make available

17 to them, as well as to the allocator, within 30 days

18 of the selection of the allocator, all responses to in19 formation requests, as well as all other potentially

20 relevant information, concerning the facility and the

21 potentially responsible parties. The President shall

22 not make available any privileged or confidential in23 formation, except as otherwise authorized by law.

24 ‘‘(f) ADDITIONAL PARTIES.—Within 60 days after

25 the later of (1) the issuance of the initial list specified
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1 in subsection (c)(2), or (2) the retention of the allocator

2 under subsection (e), any person may propose to the allo3 cator the names of additional potentially responsible par4 ties at the facility, or otherwise provide the allocator with

5 information pertaining to the facility or to the allocation.

6 Any such proposal of additional parties shall include infor7 mation regarding the nexus between each additional po8 tentially responsible party and the facility, including such

9 information as would establish that such additional poten10 tially responsible party may not avail itself of the defenses

11 and exemptions set forth in section 107. The allocator

12 shall issue a final list of all parties that will be subject

13 to the allocation process, referred to in this section as the

14 ‘‘allocation parties,’’ no later than 180 days after issuance

15 of the initial list specified in subsection (c)(2). The allo16 cator shall include in the final list of allocation parties

17 each additional party proposed pursuant to this para18 graph, unless the allocator reasonably determines that

19 such party is not potentially responsible under section 107

20 of this Act.

21 ‘‘(g) FEDERAL, STATE, AND LOCAL AGENCIES.—

22 Notwithstanding any other provision of law, all Federal,

23 State, and local governmental departments, agencies, or

24 instrumentalities that are identified as potentially respon25 sible parties or allocation parties shall be subject to, and
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1 be entitled to the benefits of, the allocation process and

2 allocation determination provided by this section to the

3 same extent as any other party.

4 ‘‘(h) POTENTIALLY RESPONSIBLE PARTY SETTLE5 MENT.—At any time prior to the issuance of an allocation

6 report as described in subsection (i)(5), or of a second or

7 subsequent report as described in subsection (p), any

8 group of potentially responsible parties at the facility may

9 submit to the allocator a private allocation for the re10 sponse action(s) that are within the scope of the allocation

11 under subsection (a)(3). If such private allocation meets

12 the following criteria, the allocator shall promptly adopt

13 it as the allocation report:

14 ‘‘(1) the private allocation is a binding alloca15 tion of 100 percent of the past, present, and future

16 costs of the response action(s);

17 ‘‘(2) the private allocation does not allocate any

18 share to any person who is not a signatory to the

19 private allocation, unless the representative of the

20 Fund is a signatory to the private allocation; and

21 ‘‘(3) the signatories to the private allocation

22 waive their rights to seek recovery of response costs

23 or contribution under this Act with respect to the re24 sponse action(s) from any other potentially respon25 sible parties at the facility.
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1 ‘‘(i) ALLOCATION DETERMINATION.—

2 ‘‘(1) ALLOCATION PROCESS.—The allocator

3 shall conduct an allocation process culminating in

4 the allocator’s issuance of a written report with a

5 nonbinding equitable allocation of percentage shares

6 of responsibility for the response action(s) that are

7 within the scope of the allocation under subsection

8 (a)(3), and shall provide such report to the alloca9 tion parties and the President.

10 ‘‘(2) INFORMATION-GATHERING AUTHORI11 TIES.—The allocator may request information from

12 any person, either on his own initiative or upon a

13 timely request by any person, in order to assist in

14 the efficient completion of the allocation process.

15 Subject to subsection (k), the allocator is authorized

16 to exercise the information-gathering authority con17 ferred upon the President under section 104(e) of

18 this Act. Notwithstanding any other provision of

19 law, the allocator shall not be considered an agency

20 of the United States Government subject to the re21 quirements of section 552 of title 5, United States

22 Code.

23 ‘‘(3) ADDITIONAL AUTHORITIES.—The allocator

24 shall have the authority to schedule meetings and re25 quire the attendance of allocation parties at such
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1 meetings; to impose sanctions against allocation par2 ties for failure to cooperate with the orderly conduct

3 of the allocation process; to require that allocation

4 parties wishing to present similar legal or factual po5 sitions consolidate their presentations; to obtain or

6 employ support services, including secretarial and

7 clerical services, computer support services, and legal

8 and investigative services; and to take any other ac9 tions necessary to conduct a cost-effective, fair, effi10 cient, and impartial allocation process.

11 ‘‘(4) CONDUCT OF ALLOCATION PROCESS.—The

12 allocator shall conduct the allocation process and

13 render a decision based solely on the provisions of

14 this section, including the allocation factors specified

15 in subsection (j), in accordance with the decisions of

16 the courts of the United States. Each allocation

17 party shall be afforded an opportunity to be heard

18 (orally and/or in writing), and an opportunity to

19 comment on a draft allocation report. The allocator

20 shall not be required to respond to comments.

21 ‘‘(5) ALLOCATION REPORT.—The allocator shall

22 provide the written allocation report to the allocation

23 parties and the President within 180 days of the is24 suance of the final list of allocation parties pursuant

25 to subsection (f). At the request of any allocation
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1 party, for good cause shown, the allocator may ex2 tend the time to complete the report by up to 90

3 days.

4 ‘‘(j) EQUITABLE FACTORS FOR ALLOCATION.—The

5 allocator shall prepare a nonbinding allocation of percent6 age shares of responsibility to all allocation parties in ac7 cordance with the provisions of this section and without

8 regard to any theory of joint and several liability, based

9 on the following equitable factors:

10 ‘‘(1) The amount of hazardous substances con11 tributed by each allocation party.

12 ‘‘(2) The degree of toxicity of the hazardous

13 substances contributed by each allocation party.

14 ‘‘(3) The mobility of the hazardous substances

15 contributed by each allocation party.

16 ‘‘(4) The degree of involvement of each alloca17 tion party in the generation, transportation, treat18 ment, storage, or disposal of the hazardous sub19 stances it contributed.

20 ‘‘(5) The degree of care exercised by each allo21 cation party with respect to the hazardous sub22 stances it contributed, taking into account the char23 acteristics of the hazardous substances.

24 ‘‘(6) In the case of an owner or operator, the

25 degree to which the allocation party caused, contrib-
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1 uted to, or consented to the release or threat of re2 lease of hazardous substances at the facility.

3 ‘‘(7) In the case of an owner or operator, the

4 degree of care exercised with respect to hazardous

5 substances released at the facility, taking into ac6 count the characteristics of such hazardous sub7 stances.

8 ‘‘(8) The cooperation of each allocation party in

9 performing the response action(s) and in providing

10 complete and timely information to the allocator.

11 ‘‘(9) Such other equitable factors as the allo12 cator determines are appropriate.

13 ‘‘(k) ALLOCATOR’S INFORMATION REQUESTS.—

14 ‘‘(1) DUTY TO ANSWER.—Each person who re15 ceives any information request from the allocator

16 must provide a full and timely response thereto.

17 ‘‘(2) CERTIFICATION.—Answers to the

18 allocator’s information requests shall include a cer19 tification by a representative of the person to whom

20 the request was directed who meets the criteria es21 tablished in section 270.11(a) of title 40 of the Code

22 of Federal Regulations that—

23 ‘‘(A) the answers are true and correct to

24 the best of the representative’s knowledge,
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1 ‘‘(B) the answers are based on a diligent,

2 good faith search of records in the possession or

3 control of the person to whom the request was

4 directed,

5 ‘‘(C) the answers are based on a reason6 able inquiry of the current and, when prac7 ticable and when reasonably expected to have

8 relevant knowledge, former officers, directors,

9 employees, and agents of the person to whom

10 the request was directed,

11 ‘‘(D) the answers accurately reflect infor12 mation obtained in the course of conducting

13 such search and such inquiry,

14 ‘‘(E) the representative executing the cer15 tification understands that there is a duty to

16 supplement any such answers if, during the al17 location process, any significant additional, new,

18 or different information becomes known to the

19 person to whom the request was directed, and

20 ‘‘(F) the representative executing the cer21 tification understands that there are significant

22 penalties for submitting false information, in23 cluding the possibility of fine and imprisonment

24 for knowing violations.
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1 ‘‘(3) ALLOCATOR TO INFORM RECIPIENTS.—

2 Each information request issued by the allocator

3 must be accompanied by—

4 ‘‘(A) a cover letter (i) that explains the ob5 ligation of the person to provide a full and

6 timely response to the request, (ii) that briefly

7 summarizes each of the elements of the re8 quired certification, and (iii) that summarizes

9 the defenses to liability that may be available to

10 the person, and

11 ‘‘(B) a printed form that sets forth the re12 quired certification and provides a space for the

13 recipient to sign and date the form before re14 turning it to the allocator.

15 ‘‘(l) PENALTIES.—

16 ‘‘(1) CIVIL.—Any person who willfully fails to

17 submit a complete and timely answer to an

18 allocator’s information request or request for pro19 duction of documents, or who submits a response

20 that lacks the certification required under subsection

21 (k)(2), or who knowingly makes any false or mis22 leading material statement or representation in any

23 statement, submission or testimony during the allo24 cation process, including statements or representa25 tions in connection with the nomination of another
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1 potentially responsible party, may be subject to civil

2 penalties of up to $10,000 per day of violation. The

3 violation shall be deemed a continuing one until such

4 time as the request is answered or the necessary cer5 tification is submitted or the false or misleading

6 statement or representation is corrected. Such pen7 alties may be assessed by the President in accord8 ance with section 109 of this Act.

9 ‘‘(2) CRIMINAL.—Any person who knowingly

10 and willfully makes any false material statement or

11 representation in response to an allocator’s informa12 tion request issued pursuant to subsection (k) shall

13 be deemed to have made a false statement on a mat14 ter within the jurisdiction of the United States with15 in the meaning of section 1001 of title 18, United

16 States Code.

17 ‘‘(m) DOCUMENT REPOSITORY; CONFIDENTIALITY.—

18 ‘‘(1) DOCUMENT REPOSITORY.—The allocator

19 shall establish and maintain a document repository

20 containing copies of all documents and information

21 provided by the President or any allocation party

22 pursuant to this section or generated by the allo23 cator during the allocation. The documents and in24 formation in the document repository shall be avail25 able only to the allocation parties for review and
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1 copying at their own expense, subject to the con2 fidentiality provisions of paragraph (2).

3 ‘‘(2) CONFIDENTIALITY.—Except for docu4 ments and materials contained in the administrative

5 record established pursuant to section 113(k), all

6 documents and materials submitted to the allocator

7 or placed in the document repository, together with

8 the record of any information generated or obtained

9 during the allocation process, shall be confidential.

10 The allocator, each allocation party, the Adminis11 trator, and the Attorney General shall maintain such

12 documents and materials, together with the record

13 of any depositions or testimony adduced during the

14 allocation, as confidential, and they are prohibited

15 from using any such material in any other matter or

16 proceeding or for any purpose other than the alloca17 tion process itself. Notwithstanding any other provi18 sion of law, the documents, materials, and records

19 described in the previous sentence shall not be sub20 ject to disclosure to any person under section 552 of

21 title 5, United States Code. Such material shall not

22 be discoverable or admissible in any other Federal,

23 State, or local judicial or administrative proceeding,

24 except (A) a new allocation pursuant to subsection

25 (o) or (s) for the same response action(s), and (B)
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1 an initial allocation pursuant to this section for a

2 different response action at the same facility.

3 ‘‘(3) DISCOVERABILITY AND ADMISSIBILITY.—

4 Notwithstanding the foregoing, if the original of any

5 document or material submitted to the allocator or

6 placed in the document repository was, in the hands

7 of the party that provided it, otherwise discoverable

8 or admissible, then such original document, if subse9 quently sought from such party, shall remain so. If

10 a fact generated or obtained during the allocation

11 was, in the hands of a witness, otherwise discover12 able or admissible, then such testimony, if subse13 quently sought from such other party, shall remain

14 so.

15 ‘‘(4) NO WAIVER OF PRIVILEGE.—The submis16 sion of testimony, documents, or information pursu17 ant to the allocation process shall not constitute a

18 waiver of any privilege applicable to the testimony,

19 documents, or information under any Federal or

20 State law or rule of discovery or evidence.

21 ‘‘(5) PROCEDURE IF DISCLOSURE SOUGHT.—

22 Any person receiving any request for a statement,

23 document, or material submitted, or for the record

24 of any allocation proceeding, shall promptly notify

25 the person who originally submitted such item or
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1 testimony in the allocation proceeding, and shall pro2 vide such submitter the opportunity to assert and

3 defend the confidentiality of such item. No person

4 shall release or provide a copy of the item to any

5 person not a party to such allocation, except with

6 the written consent of the submitter or as may be

7 required by court order.

8 ‘‘(6) CIVIL PENALTY.—Any person who fails to

9 maintain the confidentiality of any statements, docu10 ments, or information generated or obtained during

11 an allocation proceeding, or who releases any such

12 information in violation of this section, may be sub13 ject to civil penalties of up to $25,000 per violation.

14 Such penalties may be assessed by the President in

15 accordance with section 109 of this Act. In any such

16 administrative or judicial proceeding, it shall be a

17 complete defense that the statements, documents, or

18 information at issue (A) was in, or subsequently has

19 become part of, the public domain and not as a re20 sult of any violation of this subsection, (B) was al21 ready known by lawful means to the person receiving

22 such information in connection with the allocation

23 process, or (C) became known to such person after

24 disclosure in connection with the allocation process,
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1 and not as a result of any violation of this sub2 section.

3 ‘‘(n) FUND REIMBURSABLE SHARE.—The allocator

4 shall determine the percentage of responsibility, if any, for

5 the response action(s) that is allocable to the fund reim6 bursable share. The fund reimbursable share shall consist

7 of the difference between the aggregate share that the allo8 cator determines is attributable to the following categories

9 of allocation parties and the aggregate share actually as10 sumed by those parties in any settlements with the United

11 States with respect to the response action(s)—

12 ‘‘(A) any person entitled to a de minimis con13 tributor exemption from retroactive liability under

14 section 107(n)(1).

15 ‘‘(B) Any person entitled to a reimbursement

16 for retroactive liability under section 112(g).

17 ‘‘(C) Any person entitled to any other exemp18 tion from or limitation of liability under section

19 107(n).

20 ‘‘(o) REJECTION OF ALLOCATION REPORT.—The Ad21 ministrator and the Attorney General of the United States

22 may jointly reject an allocator’s report only if they jointly

23 publish in the Federal Register, within 120 days after re24 ceipt of the report, a written determination that—
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1 ‘‘(1) no reasonable interpretation of the facts

2 before the allocator, in light of the factors required

3 to be considered, would form a reasonable basis for

4 the shares assigned to the parties; or

5 ‘‘(2) the allocation process was directly and

6 substantially affected by bias, procedural error,

7 fraud, or unlawful conduct.

8 The Administrator and the Attorney General may not re9 ject the allocator’s report after the 180th day following

10 its issuance or after the United States has accepted a set11 tlement offer based on the allocation. The determinations

12 of the Administrator and the Attorney General under this

13 subsection shall not be subject to judicial review unless

14 two successive allocation reports relating to the same re15 sponse action(s) are rejected, in which case any allocation

16 party may obtain judicial review of the second rejection

17 pursuant to chapter 7 of title 5, United States Code, in

18 the United States district court for the district in which

19 the facility is located. The authority to make such deter20 minations may not be delegated to any officer or employee

21 below the level of an Assistant Secretary or Acting Assist22 ant Secretary with authority for implementing this Act at

23 the Environmental Protection Agency or the Department

24 of Justice.
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1 ‘‘(p) SECOND AND SUBSEQUENT ALLOCATIONS.—If

2 the United States rejects an allocator’s report in accord3 ance with subsection (n), then the allocation parties shall

4 select an allocator pursuant to subsection (d) to perform,

5 on an expedited basis, a new allocation based on the same

6 record available to the previous allocator. In such a case,

7 the moratorium and tolling provisions of subsection (b)

8 shall be extended until 90 days after the issuance of the

9 second or subsequent allocation report. The allocation par10 ties may select an allocator that performed one or more

11 previous allocations at the same facility, except that the

12 President may determine pursuant to subsection (d) that

13 an allocator whose previous report at the same facility has

14 been rejected under subsection (n) is unqualified to serve.

15 ‘‘(q) SETTLEMENTS BASED ON ALLOCATIONS.—(1)

16 Any allocation party or group of allocation parties that,

17 within 90 days after issuance of the allocator’s report, (A)

18 offers to settle with the United States based on the per19 centage share specified by the allocator, and (B) agrees

20 to the other terms and conditions set forth in this sub21 section, shall then be entitled to resolve its liability to the

22 United States on that basis, unless the allocation report

23 is rejected in accordance with subsection (o), in which case

24 the provisions of subsection (p) shall apply. If any alloca25 tion party described in the previous sentence receives an
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1 administrative order to perform the response action(s),

2 then it shall be entitled to resolve its liability to the United

3 States in accordance with the provisions of subsection (r)

4 instead.

5 ‘‘(2) Settlements based on allocations under this sec6 tion may consist either of cash-out settlements or agree7 ments for the performance of the response action(s), and

8 shall include—

9 ‘‘(A) a waiver of contribution rights against all

10 persons who are potentially responsible parties for

11 the response action(s);

12 ‘‘(B) covenants not to sue, consistent with the

13 provisions of section 122(f) of this Act, and, except

14 in the case of cash-out settlements, provisions re15 garding performance or adequate assurance of per16 formance of the response action(s) addressed in the

17 settlement;

18 ‘‘(C) a premium, calculated on a site-specific

19 basis and subject to the limitations set forth in para20 graph (3), that reflects the United States’ actual

21 risk of not collecting its unrecovered response costs

22 for the response action(s) despite the diligent pros23 ecution of litigation against all viable allocation par24 ties that have not resolved their liability to the Unit25 ed States, except that no premium shall apply if all
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1 allocation parties settle or if the settlement covers

2 100 percent of such response costs; and

3 ‘‘(D) protection from all claims for contribution

4 regarding the response action(s).

5 ‘‘(3) In each settlement pursuant to this section, the

6 premium authorized by this subsection shall be determined

7 on a case-by-case basis to reflect the actual litigation risk

8 faced by the United States with respect to the response

9 action(s) addressed in the settlement, but in any event

10 shall not exceed—

11 ‘‘(A) 5 percent of the total costs assumed by a

12 settling party, where settlements account for more

13 than 80 percent and less than 100 percent of re14 sponsibility for such response action(s);

15 ‘‘(B) 10 percent of the total costs assumed by

16 a settling party, where settlements account for more

17 than 60 percent and no more than 80 percent of re18 sponsibility for such response action(s);

19 ‘‘(C) 15 percent of the total costs assumed by

20 a settling party, where settlements account for more

21 than 40 percent and no more than 60 percent of re22 sponsibility for such response action(s); and

23 ‘‘(D) 20 percent of the total costs assumed by

24 a settling party, where settlements account for 40
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1 percent or less of responsibility for such response

2 action(s).

3 The President shall have no authority to modify the per4 centages established herein.

5 ‘‘(r) ADMINISTRATIVE ORDERS; REIMBURSEMENT.—

6 Upon the expiration of the moratorium period under sub7 section (b)(5), the President may issue orders under sec8 tion 106 of this Act to persons at the facility only if the

9 aggregate of their allocated percentage shares of respon10 sibility exceeds 50 percent. Any allocation party that is

11 ordered to perform, and does perform, any response action

12 that is the subject of an allocation under this section to

13 an extent that exceeds its percentage share (as determined

14 by the allocator) shall be entitled to prompt reimburse15 ment of the excess from the Fund unless the allocation

16 report is rejected pursuant to subsection (o). Such right

17 to reimbursement shall not be contingent on the United

18 States’ recovery of any response costs from any other per19 son. The following terms and conditions shall apply to

20 such reimbursement:

21 ‘‘(1) The reimbursement shall be reduced by

22 the amount of the litigation risk premium under

23 subsection (q)(4) that would apply to the allocation

24 party’s settlement concerning the response action(s),

25 based on the total allocated shares of the parties
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1 that have not yet reached settlements with the

2 United States.

3 ‘‘(2) The reimbursement shall be paid out dur4 ing the course of the response action(s) that were

5 the subject of the allocation. Reimbursement for the

6 construction portion of the work shall be paid out no

7 later than 120 days after completion of said con8 struction.

9 ‘‘(3) The reimbursement is subject to equitable

10 offset or recoupment by the President at any time

11 if the allocation party fails to perform the work in

12 a proper and timely manner.

13 ‘‘(4) The President may require independent

14 auditing of the claim for reimbursement.

15 ‘‘(5) The allocation party waives its rights to

16 seek recovery of response costs in connection with

17 the response action(s), or contribution toward those

18 response costs, from any other person.

19 ‘‘(6) The completion or the continuing satisfac20 tory performance of the response action required

21 under the administrative order shall bar any judicial

22 or administrative action by the United States or any

23 other person against the allocation party for matters

24 addressed in the administrative order unless the

25 United States or such person can establish that the
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1 allocation party is in violation of the administrative

2 order.

3 ‘‘(s) POST-SETTLEMENT LITIGATION.—

4 ‘‘(1) IN GENERAL.—Subject to subsections (p)

5 and (q), and beginning after 90 days following issu6 ance of the allocator’s report, the United States may

7 commence an action under this Act against any allo8 cation party that has not resolved its liability to the

9 United States following an allocation, seeking to re10 cover response costs not recovered through settle11 ments with other persons. All such actions shall be

12 governed by the principles of liability under this title

13 as determined by the courts of the United States.

14 ‘‘(2) GOVERNMENT ACTIONS.—In commencing

15 any action under section 107 against an allocation

16 party after the expiration of the time period de17 scribed in paragraph (1) of this subsection, the At18 torney General must certify in the complaint that

19 the defendant has failed or refused to settle the mat20 ter based on the share that the allocation report as21 signed to such party.

22 ‘‘(3) RESPONSE COSTS.—The costs of imple23 menting the allocation procedure set forth in this

24 section, including reasonable fees and expenses of

25 the allocator, shall be considered response costs.
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1 ‘‘(t) NEW INFORMATION.—Allocations under this sec2 tion shall be final, except that any settling party, including

3 the United States, may seek a new allocation with respect

4 to the response action(s) that were the subject of the set5 tlement by presenting the President with clear and con6 vincing evidence that—

7 ‘‘(1) the allocator did not have information con8 cerning—

9 ‘‘(A) 35 percent or more of the materials

10 containing hazardous substances at the facility;

11 ‘‘(B) one or more persons not previously

12 named as allocation parties who contributed 15

13 percent or more of the materials containing

14 hazardous substances at the facility; or

15 ‘‘(C) other matters that, if known prior to

16 the issuance of the allocator’s report, could

17 have served as the basis for rejecting the report

18 under subsection (o)(1); and

19 ‘‘(2) such information has been discovered sub20 sequent to the issuance of the allocator’s report.

21 Any new allocation of responsibility shall proceed in ac22 cordance with the provisions of this section, shall be effec23 tive only after the date of the new allocation report, and

24 shall not alter or affect the original allocation with respect

25 to response costs previously incurred.
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1 ‘‘(u) ALLOCATOR’S DISCRETION.—The President

2 shall not issue any regulations, rules, or other documents

3 that limit an allocator’s discretion in the conduct of an

4 allocation proceeding.’’.

5 SEC. 208. CIVIL PROCEEDINGS.

6 (a) PETITIONS.—Section 113(a) (42 U.S.C. 9613(a))

7 is amended as follows:

8 (1) By striking ‘‘upon application by any inter9 ested person’’ and inserting ‘‘by any interested per10 son through the filing of a petition for review’’.

11 (2) By striking ‘‘application shall be made’’,

12 and inserting ‘‘petition shall be filed’’.

13 (b) PERIOD IN WHICH ACTION MAY BE BROUGHT.—

14 Section 113(g) (42 U.S.C. 9613(g)) is amended by strik15 ing paragraphs (2) and (3) and inserting in lieu thereof

16 the following:

17 ‘‘(2) ACTIONS FOR RECOVERY OF COSTS.—(A)

18 Except as provided in subparagraph (C), an initial

19 action for recovery of costs referred to in section

20 107 must be commenced—

21 ‘‘(i) for a removal action, within 3 years

22 after completion of all removal action taken

23 with respect to the facility, including off-site

24 disposal of any removed materials, except that

25 if physical on-site construction of the remedial
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1 action is initiated within 3 years after the com2 pletion of all removal action taken with respect

3 to the facility, costs incurred for removal action

4 may be recovered in a cost recovery action

5 brought under clause (ii); and

6 ‘‘(ii) for a remedial action, within 6 years

7 after initiation of physical on-site construction

8 of the remedial action.

9 ‘‘(B) In any such action described in this para10 graph, the court shall enter a declaratory judgment

11 on liability for response costs or damages that will

12 be binding in such action or in any subsequent ac13 tion or actions to recover further response costs or

14 damages. A subsequent action or actions under sec15 tion 107 for further response costs at the vessel or

16 facility may be maintained at any time during the

17 response action, but must be commenced no later

18 than 3 years after the date of completion of all re19 sponse action. Except as otherwise provided in this

20 paragraph, an action may be commenced under sec21 tion 107 for recovery of costs at any time after such

22 costs have been incurred.

23 ‘‘(C) An action by any potentially responsible

24 party against another potentially responsible party
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1 for recovery of any response costs or damages must

2 be commenced within the later of—

3 ‘‘(i) the time limitations set forth in sub4 paragraph (A); or

5 ‘‘(ii) where recovery is sought for costs or

6 damages paid pursuant to a judgment or settle7 ment, 3 years after—

8 ‘‘(I) the date of judgment in any ac9 tion under this Act for recovery of such

10 costs or damages, or

11 ‘‘(II) the date of any administrative

12 order or judicial settlement for recovery of

13 the costs or damages paid or incurred pur14 suant to such a settlement.’’.

15 SEC. 209. LIMITATIONS ON CONTRIBUTION ACTIONS.

16 Section 113(f) (42 U.S.C. 9613(f)) is amended as fol17 lows:

18 (1) By amending paragraph (1) as follows:

19 (A) By striking ‘‘Any person’’ in the first

20 sentence and inserting ‘‘Except as provided in

21 paragraph (4), any person who is liable or po22 tentially liable under section 107(a)’’.

23 (B) By striking ‘‘, during or following any

24 civil action under section 106 or under section
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1 107(a).’’ and inserting ‘‘in a claim asserted

2 under section 107(a).’’.

3 (C) In the second sentence, by striking

4 ‘‘this section’’ and inserting ‘‘section 107(a),

5 this section,’’.

6 (D) By striking the sentence beginning

7 with ‘‘Nothing in this subsection’’.

8 (2) By amending paragraph (2) to read as fol9 lows:

10 ‘‘(2) SETTLEMENTS.—A person who has re11 solved its liability to the United States in an admin12 istrative or judicially approved settlement shall not

13 be liable for contribution or any other claims by any

14 person other than a State acting under section

15 107(a)(4)(A) (and not as a potentially responsible

16 party) regarding response actions, response costs, or

17 damages addressed in the settlement. A person who

18 has resolved its liability to a State or an Indian tribe

19 in an administrative or judicially approved settle20 ment shall not be liable for contribution or any other

21 claims by persons other than the United States Gov22 ernment acting under section 107(a)(4)(A) (and not

23 as a potentially responsible party) regarding re24 sponse actions, response costs or damages addressed

25 in the settlement for which the State or Indian tribe
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1 has a claim under this title. Such settlement does

2 not discharge any other potentially responsible per3 sons unless its terms so provide, but it reduces the

4 potential liability of such other persons by the

5 amount of the settlement. The protection afforded

6 by this subsection shall include protection against

7 claims, under Federal or State law, that may be as8 serted against the settling party for recovery of re9 sponse costs or damages incurred or paid by another

10 person, if such costs or damages are addressed in

11 the settlement, but shall not include protection

12 against claims based on contractual indemnification

13 or other express contractual agreements to pay such

14 costs or damages.’’.

15 (3) By adding at the end the following new

16 paragraph:

17 ‘‘(4) LIMITATIONS ON CONTRIBUTION AC18 TIONS.—(A) There shall be no right of contribution

19 under this subsection in any of the following cir20 cumstances:

21 ‘‘(i) The person asserting the right of con22 tribution has waived the right in a settlement

23 pursuant to this Act.

24 ‘‘(ii) The person from whom contribution

25 is sought is not liable under this Act.
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1 ‘‘(iii) The person from whom contribution

2 is sought has entered into a settlement with the

3 United States pursuant to section 122(g), with

4 respect to matters addressed in that settlement.

5 ‘‘(B) Any person who commences an action for

6 contribution shall be liable to the person against

7 whom the claim of contribution is brought for all

8 reasonable costs of defending against the claim, in9 cluding all reasonable attorneys’ and expert witness

10 fees, if—

11 ‘‘(i) the action is barred by subparagraph

12 (A);

13 ‘‘(ii) the action is brought against a person

14 who is protected from such suits pursuant to

15 section 113(f)(2) by reason of a settlement with

16 the United States; or

17 ‘‘(iii) the action is brought during the mor18 atorium pursuant to section 128 (relating to al19 location).’’.

20 SEC. 210. LIABILITY OF RESPONSE ACTION CONTRACTORS.

21 (a) EXTENSION OF NEGLIGENCE STANDARD.—Sub22 section (a) of section 119 (42 U.S.C. 9619(a)) is amended

23 as follows:

24 (1) In paragraph (1), by striking out ‘‘title or

25 under any other Federal law’’ and inserting in lieu
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1 thereof ‘‘title, under any other Federal law or under

2 the law of any State or political subdivision of a

3 State’’.

4 (2) by adding at the end of paragraph (1) the

5 following: ‘‘Notwithstanding the preceding sentence,

6 this section shall not apply in determining the liabil7 ity of a response action contractor under the law of

8 any State or political subdivision thereof if the State

9 has adopted, after enactment of the Reform of

10 Superfund Act of 1995, a law determining the liabil11 ity of a response action contractor.’’.

12 (3) By adding at the end of paragraph (2) the

13 following: ‘‘Such conduct shall be evaluated based on

14 the generally accepted standards and practices in ef15 fect at the time and place that the conduct oc16 curred.’’.

17 (b) EXTENSION OF INDEMNIFICATION AUTHOR18 ITY.—Section 119(c) is amended by adding at the end of

19 paragraph (1) the following: ‘‘Any such agreement may

20 apply to claims for negligence arising under Federal law

21 or under the law of any State or political subdivision of

22 a State.’’.

23 (c) INDEMNIFICATION FOR THREATENED RE24 LEASES.—Section 119(c)(5) is amended in subparagraph
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1 (A) by inserting ‘‘or threatened release’’ after ‘‘release’’

2 both places it appears.

3 (d) CLARIFICATION OF LIABILITY.—Section 119(a)

4 (42 U.S.C. 9219(a)) is amended by inserting after para5 graph (4) the following new paragraph:

6 ‘‘(5) LIABILITY.—Notwithstanding any other

7 provision of this Act, any liability of a response ac8 tion contractor under this Act shall be determined

9 solely in accordance with this section.’’.

10 (e) LIMITATION ON ACTIONS.—Section 119 is

11 amended by adding at the end the following new sub12 section:

13 ‘‘(g) LIMITATION ON ACTIONS AGAINST RESPONSE

14 ACTION CONTRACTORS.—No action to recover for any in15 jury to property, real or personal, or for bodily injury or

16 wrongful death, or any other expenses or costs arising out

17 of the performance of services under a response action

18 contract, nor any action for contribution or indemnity for

19 damages sustained as a result of such injury, shall be

20 brought against any response action contractor more than

21 6 years after the completion of work at any site under

22 such contract. Notwithstanding the preceding sentence,

23 this section shall not—
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1 ‘‘(1) bar recovery for a claim caused by the con2 duct of the response action contractor that is grossly

3 negligent or that constitutes intentional misconduct;

4 ‘‘(2) affect any right of indemnification that

5 such response action contractor may have under this

6 section or may acquire by written agreement with

7 any party; or

8 ‘‘(3) apply in any State or political subdivision

9 thereof it the State has adopted, after enactment of

10 the Reform of Superfund Act of 1995, a statute of

11 repose determining the liability of a response action

12 contractor.’’.

13 (f) EXTENSION RELATING TO SURETIES.—(1) Sec14 tion 119(e)(2) is amended in subparagraph (C) by striking

15 ‘‘and before January 1, 1996,’’.

16 (2) Section 119(g)(5) is amended by striking out ‘‘,

17 or after December 31, 1995’’.

18 (g) EXTENSION OF COVERAGE TO ALL RESPONSE

19 ACTIONS.—Section 119(e)(1) is amended as follows:

20 (1) By striking ‘‘carrying out an agreement

21 under section 106 or 122’’.

22 (2) By striking ‘‘any remedial action under this

23 Act at a facility listed on the National Priorities

24 List, or any removal action under this Act,’’ and in-
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1 serting in lieu thereof ‘‘any response as defined by

2 section 101(25),’’.

3 SEC. 211. ENHANCEMENT OF SETTLEMENT AUTHORITIES.

4 Section 122 (42 U.S.C. 9622) is amended as follows:

5 (1) In subsection (b) by striking paragraph (3)

6 and redesignating paragraph (4) as paragraph (3).

7 (2) By adding the following new subparagraph

8 at the end of subsection (d)(1):

9 ‘‘(D) DISPUTE RESOLUTION.—Any consent

10 decree shall require the parties to attempt expe11 ditiously to resolve disagreements concerning

12 implementation of the remedial action infor13 mally with the appropriate Federal and State

14 agencies. Each consent decree shall provide au15 thority for the Federal district court with juris16 diction over the decree to resolve any disagree17 ments not resolved by the parties.’’.

18 (3) By amending subsection (e)—

19 (A) By inserting after paragraph (1)(C)

20 the following:

21 ‘‘(D) For each potentially responsible

22 party, the evidence that indicates that each ele23 ment of liability contained in section 107(a) is

24 present.’’.

25 (B) By striking paragraph (3).
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1 (C) By redesignating paragraphs (4) and

2 (5) as paragraphs (3) and (4), respectively.

3 (4) By adding at the end of subsection (g)(1)

4 the following: ‘‘The President may waive any condi5 tion or requirement of subparagraph (B), for a per6 son liable as an owner under section 107(a)(1), if

7 not more than a de minimis amount of any hazard8 ous substance was released as a result of the genera9 tion, transportation, storage, treatment, or disposal

10 of hazardous substances at the facility by the owner

11 and persons affiliated with the owner after the

12 owner took title, or if the owner and persons affili13 ated with the owner caused or contributed to the re14 lease or threat of release of not more than a de

15 minimis amount of any hazardous substance at the

16 facility through any action or omission after the

17 owner took title.’’.

18 (5)(A) By transferring paragraph (6) of sub19 section (e) to the end of the section and redesignat20 ing such paragraph as subsection (o).

21 (B) In subsection (o) (as so transferred and re22 designated), by striking ‘‘remedial action’’ in both

23 places it appears and inserting ‘‘response action’’,

24 and by inserting ‘‘or the State under applicable law’’

25 before the period at the end.
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1 (C) By adding the following new subsections at

2 the end thereof:

3 ‘‘(p) RETENTION OF FUNDS.—(1) If, as part of any

4 settlement agreement under this Act, a potentially respon5 sible party will be paying amounts to the President for

6 carrying out any response action, the President may retain

7 such amounts in interest bearing accounts, and use such

8 amounts, together with accrued interest, to conduct or en9 able other persons to conduct such response action.

10 ‘‘(2) If, as part of any settlement agreement for car11 rying out a response action under this Act, a potentially

12 responsible party will be paying amounts to the President,

13 the Administrator is authorized to accept ownership of a

14 financial instrument running irrevocably to the benefit of

15 the United States to conduct, or enable other persons to

16 conduct, such response actions. For the purposes of this

17 paragraph, the term ‘financial instrument’ means an an18 nuity contract, funding agreement, or similar instrument

19 acceptable to the Secretary of the Treasury, that is pur20 chased by one or more potentially responsible parties, and

21 has a defined schedule of periodic payments which coin22 cides with the obligations set forth in the settlement agree23 ment. Periodic payments under such a financial instru24 ment will be made to the owner, or as the owner directs,
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1 for response costs at the facility which is the subject of

2 the settlement agreement.

3 ‘‘(q) CHALLENGE TO COST RECOVERY COMPONENT

4 OF SETTLEMENT.—Notwithstanding the limitations on re5 view in section 113(h), and except as provided in sub6 section (g) of this section, a person whose potential claim

7 for response costs or contribution is limited as a result

8 of contribution protection afforded by an administrative

9 settlement under this section may challenge the cost recov10 ery component of such settlement. Such a challenge may

11 be made only by filing a complaint against the Adminis12 trator in the United States District Court within 60 days

13 after such settlement becomes final. Venue shall lie in the

14 district in which the principal office of the appropriate re15 gion of the Environmental Protection Agency is located.

16 Any review of an administrative settlement shall be limited

17 to the administrative record, and the settlement shall be

18 upheld unless the objecting party can demonstrate on that

19 record that the decision of the President to enter into the

20 administrative settlement was arbitrary, capricious, or

21 otherwise not in accordance with law.

22 ‘‘(r) UNSUCCESSFUL CHALLENGERS LIABLE FOR AT23 TORNEY’S FEES.—Any party who challenges any settle24 ment entered into between the President and any poten25 tially responsible party under this Act, and who is not suc-
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1 cessful in overturning or modifying the settlement, shall

2 be liable to the United States and any settling party for

3 all reasonable attorneys’ fees and costs incurred in defend4 ing the settlement.’’.

5 SEC. 212. PROFESSIONAL SERVICES.

6 Section 122 is amended by adding after subsection

7 (r) the following new subsection:

8 ‘‘(s) PROFESSIONAL SERVICES.—The Administrator

9 has the authority to use the procedures set forth in section

10 109(e) to obtain the services of neutral professionals to

11 assist in the conduct of settlement negotiations under this

12 section.’’.

13 SEC. 213. FINAL COVENANTS.

14 Section 122(f) is amended as follows:

15 (1) By amending paragraph (1) to read as fol16 lows:

17 ‘‘(1) FINAL COVENANTS.—The President shall

18 offer potentially responsible parties who enter into

19 settlement agreements that are in the public interest

20 a final covenant not to sue concerning any liability

21 to the United States under this Act, including a cov22 enant with respect to future liability, for response

23 actions or response costs addressed in the settle24 ment, if all of the following conditions are met:
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1 ‘‘(A) The settling party agrees to perform,

2 or there are other adequate assurances of the

3 performance of, a final remedial action author4 ized by the Administrator for the release or

5 threat of release that is the subject of the set6 tlement.

7 ‘‘(B) The settlement agreement has been

8 reached prior to the commencement of litigation

9 against the settling party under section 106 or

10 107 of this Act with respect to this facility.

11 ‘‘(C) The settling party waives all contribu12 tion rights against other potentially responsible

13 parties at the facility.

14 ‘‘(D) The settling party pays a premium

15 that compensates for the risks of remedy fail16 ure; future liability resulting from unknown

17 conditions; unanticipated increases in the cost

18 of any uncompleted response action, unless the

19 settling party is performing the response action;

20 and, where applicable, the United States litiga21 tion risk as provided in section 128 (relating to

22 allocation) with respect to persons who have not

23 resolved their liability to the United States

24 under this Act, unless all parties have settled

25 their liability to the United States, or the settle-
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1 ment covers 100 percent of the United States

2 response costs. The President shall have sole

3 discretion to determine the appropriate amount

4 of any such premium, and such determinations

5 are committed to the President’s discretion.

6 The President has discretion to waive or reduce

7 the premium payment for persons who dem8 onstrate an inability to pay such a premium.’’.

9 (2) Paragraph (3) is amended to read as fol10 lows:

11 ‘‘(3) DISCRETIONARY COVENANTS.—For settle12 ments under this Act for which covenants under sec13 tion 122(f)(1) are not available, the President may,

14 in his discretion, provide any person with a covenant

15 not to sue concerning any liability to the United

16 States under this Act, if the covenant not to sue is

17 in the public interest. Such covenants shall be sub18 ject to the requirements of section 122(f)(5). The

19 President may include any conditions in such cov20 enant not to sue, including the additional condition

21 referred to in paragraph (5). In determining whether

22 such conditions or covenants are in the public inter23 est, the President shall consider the nature and

24 scope of the commitment by the settling party under

25 the settlement, the effectiveness and reliability of the
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1 response action, the nature of the risks remaining at

2 the facility, the strength of evidence, the likelihood

3 of cost recovery, the reliability of any response ac4 tion or actions to restore, replace, or acquire the

5 equivalent of injured natural resources, the extent to

6 which performance standards are included in the

7 order or decree, the extent to which the technology

8 used in the response action is demonstrated to be ef9 fective, and any other factors relevant to the protec10 tion of human health and the environment.’’.

11 (3) Such subsection (f) is amended by striking

12 paragraph (4) and redesignating paragraphs (5) and

13 (6) as paragraphs (4) and (5), respectively.

14 (4) Paragraph (2) is amended by striking ‘‘re15 medial’’ each place it appears and inserting ‘‘re16 sponse’’.

17 (5) Subparagraph (A) of paragraph (5) (as so

18 redesignated) is amended—

19 (A) by striking ‘‘remedial’’ and inserting

20 ‘‘response’’;

21 (B) by striking ‘‘paragraph (2)’’ in the

22 first sentence and inserting ‘‘paragraph (1) or

23 (2)’’;

24 (C) by striking ‘‘de minimis settlements’’

25 and inserting ‘‘de minimis and other expedited
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1 settlements pursuant to subsection (g) of this

2 section’’; and

3 (D) by striking ‘‘the President certifies

4 under paragraph (3) that remedial action has

5 been completed at the facility concerned’’, and

6 inserting ‘‘that the response action that is the

7 subject of the settlement agreement is se8 lected’’.

9 (6) Subparagraph (B) of paragraph (5) (as so

10 redesignated) is amended as follows:

11 (i) By striking ‘‘In extraordinary cir12 cumstances, the’’ and inserting ‘‘The’’.

13 (ii) By striking ‘‘those referred to in para14 graph (4) and’’.

15 (iii) By striking ‘‘if other terms,’’ and in16 serting ‘‘, if the agreement containing the cov17 enant not to sue provides for payment of a pre18 mium to address possible remedy failure or any

19 releases that may result from unknown condi20 tions, and if other terms,’’.

21 (iv) By inserting at the end the following:

22 ‘‘The President may, in his discretion, waive or

23 reduce the premium payment for persons who

24 demonstrate an inability to pay such a pre25 mium.’’.
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1 SEC. 214. EXPEDITED FINAL SETTLEMENTS.

2 Section 122 is amended as follows:

3 (1) Subsection (g) is amended by striking ‘‘(g)’’

4 and all that follows through the end of subparagraph

5 (A) of paragraph (1) and inserting in lieu thereof

6 the following:

7 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—

8 ‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET9 TLEMENT.—The President shall, as promptly as pos10 sible, offer to reach a final administrative or judicial

11 settlement with potentially responsible parties who,

12 in the judgment of the President, meet one or more

13 of the following conditions for eligibility for an expe14 dited settlement:

15 ‘‘(A) The potentially responsible party’s in16 dividual contribution of hazardous substances

17 at the facility is de minimis. The contribution

18 of hazardous substances to a facility by a po19 tentially responsible party is de minimis if both

20 of the following conditions are met:

21 ‘‘(i) The potentially responsible par22 ty’s volumetric contribution of materials

23 containing hazardous substances is mini24 mal in comparison to the total volumetric

25 contributions of materials containing haz26 ardous substances at the facility; such indi-
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1 vidual contribution is presumed to be mini2 mal if it is one percent or less of the total

3 volumetric contribution at the facility, un4 less the Administrator identifies a different

5 threshold based on site-specific factors.

6 ‘‘(ii) The potentially responsible par7 ty’s hazardous substances do not present

8 toxic or other hazardous effects that are

9 significantly greater than those of other

10 hazardous substances at the facility.’’.

11 (2) Subsection (g) is further amended by insert12 ing after subparagraph (B) of paragraph (1) the fol13 lowing:

14 ‘‘(C) The potentially responsible party’s li15 ability is based solely on paragraph (3) or (4)

16 of section 107(a), and the arrangement for dis17 posal, treatment, or transport for disposal or

18 treatment, or the acceptance for transport for

19 disposal or treatment, involved only municipal

20 solid waste or sewage sludge. The Adminis21 trator may offer to settle the aggregate liability

22 of generators and transporters of municipal

23 solid waste or sewage sludge whose liability is

24 limited pursuant to paragraph (7) of section
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1 107(a) for up to 10 percent of the total re2 sponse costs at the facility.

3 ‘‘(D)(i) The potentially responsible party is

4 a natural person, a small business, or a munici5 pality and can demonstrate to the United

6 States an inability or limited ability to pay re7 sponse costs. A party who enters into a settle8 ment pursuant to this subparagraph shall be

9 deemed to have resolved its liability under this

10 Act to the United States for all matters ad11 dressed in the settlement.

12 ‘‘(ii) For purposes of this subparagraph,

13 the following provisions apply:

14 ‘‘(I) In the case of a small business,

15 the President shall take into consideration

16 the ability to pay of the business, if re17 quested by the business. The term ‘ability

18 to pay’ means the President’s reasonable

19 expectation of the ability of the small busi20 ness to pay its total settlement amount

21 and still maintain its basic business oper22 ations. Such consideration shall include the

23 business’s overall financial condition and

24 demonstrable constraints on its ability to

25 raise revenues.
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1 ‘‘(II) Any business requesting such

2 consideration shall promptly provide the

3 President with all relevant information

4 needed to determine the business’s ability

5 to pay.

6 ‘‘(III) The business shall demonstrate

7 the amount of its ability to pay. If the

8 business employs fewer than 20 employees,

9 and has annual gross revenues of less than

10 $1,800,000 or a net profit margin of less

11 than 2 percent, the President shall perform

12 any analysis that may be required to dem13 onstrate the business’s ability to pay. The

14 President, in his discretion, may perform

15 such analysis for any other party or re16 quire such other party to perform the anal17 ysis.

18 ‘‘(IV) If the President determines that

19 a small business is unable to pay its total

20 settlement amount immediately, the Presi21 dent shall consider alternative payment

22 methods as may be necessary or appro23 priate. The methods to be considered may

24 include installment payments to be paid
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1 during a period of not to exceed 10 years

2 and the provision of in-kind services.

3 ‘‘(iii) Any municipality which is a poten4 tially responsible party may submit for consid5 eration by the President an evaluation of the

6 potential impact of the settlement on essential

7 services that the municipality must provide, and

8 the feasibility of making delayed payments or

9 payments over time. If a municipality asserts

10 that it has additional environmental obligations

11 besides its potential liability under this Act,

12 then the municipality may create a list of the

13 obligations, including an estimate of the costs

14 of complying with such obligations.

15 ‘‘(iv) Any municipality which is a poten16 tially responsible party may establish an inabil17 ity to pay through an affirmative showing that

18 such payment of its liability under this Act

19 would either—

20 ‘‘(I) create a substantial demonstrable

21 risk that the municipality would default on

22 existing debt obligations, be forced into

23 bankruptcy, be forced to dissolve, or be

24 forced to make budgetary cutbacks that
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1 would substantially reduce current levels of

2 protection of public health and safety; or

3 ‘‘(II) necessitate a violation of legal

4 requirements or limitations of general ap5 plicability concerning the assumption and

6 maintenance of fiscal municipal obliga7 tions.

8 ‘‘(v) This subparagraph does not limit or

9 affect the President’s authority to evaluate any

10 person’s ability to pay or to enter into settle11 ments with any person based on that person’s

12 inability to pay.’’.

13 (3) Paragraphs (2) and (3) of subsection (g)

14 are amended to read as follows:

15 ‘‘(2) BASIS OF DETERMINATION.—Any person

16 who enters into a settlement pursuant to this sub17 section shall provide any information requested by

18 the President or by an allocator in accordance with

19 section 128(i)(2) (relating to allocation information20 gathering authority) or section 104(e) of this Act.

21 The determination of whether a person is eligible for

22 an expedited settlement shall be made on the basis

23 of all information available to the President at the

24 time the determination is made. Neither the Presi25 dent’s determination as to the eligibility of a party
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1 that is not a department, agency, or instrumentality

2 of the United States for settlement pursuant to this

3 section, nor the terms of the final settlement with

4 such a party, shall be subject to judicial review. If

5 the President determines that a party is not eligible

6 for a settlement pursuant to this section, the Presi7 dent shall explain the basis for that determination in

8 writing to any person who requests such a settle9 ment.

10 ‘‘(3) ADDITIONAL FACTORS RELEVANT TO SET11 TLEMENTS WITH MUNICIPALITIES.—In any settle12 ment with a municipality pursuant to this Act, the

13 President may take additional equitable factors into

14 account in determining an appropriate settlement

15 amount, including the limited resources available to

16 that party, and any in-kind services that the party

17 may provide to support the response action at the

18 facility. In considering the value of in-kind services,

19 the President shall consider the fair market value of

20 those services.’’.

21 (4) Subsection (g) is further amended—

22 (A) in paragraph (4), by striking

23 ‘‘$500,000’’ and inserting ‘‘$2,000,000’’; and

24 (B) by striking paragraph (5).

25 (5) Subsection (h) is amended as follows:
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1 (A) By amending the heading to read as

2 follows: ‘‘AUTHORITY TO SETTLE CLAIMS FOR

3 FINES, CIVIL PENALTIES, PUNITIVE DAMAGES,

4 AND COST RECOVERY.—’’.

5 (B) In paragraph (1):

6 (i) In the first sentence, by striking

7 ‘‘costs incurred’’ and inserting ‘‘past and

8 future costs incurred or that may be in9 curred’’.

10 (ii) In the first sentence, by inserting

11 after ‘‘if the claim has not been referred to

12 the Department of Justice for further ac13 tion.’’ the following: ‘‘The head of any de14 partment or agency with the authority to

15 seek fines, civil penalties, or punitive dam16 ages under this Act may consider, com17 promise, and settle claims for any such

18 fines, civil penalties, or punitive damages

19 which may otherwise be assessed in civil

20 administrative or judicial proceedings if

21 the claim has not been referred to the De22 partment of Justice for further action. If

23 the total claim for response costs, fines,

24 civil penalties, or punitive damages exceeds

25 $2,000,000, such claim may be com-
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1 promised and settled only with the prior

2 written approval of the Attorney General.’’.

3 (C) By striking paragraph (4).

4 SEC. 215. CLARIFICATION OF LIABILITY FOR RECYCLING

5 TRANSACTIONS.

6 Title I is amended by adding after section 128, as

7 added by section 207, the following new section:

8 ‘‘SEC. 129. RECYCLING TRANSACTIONS.

9 ‘‘(a) LIABILITY CLARIFICATION.—As provided in

10 subsections (b), (c), (d) and (e), a person who arranged

11 for the recycling of recyclable material shall not be liable

12 under section 107(a)(3) or 107(a)(4).

13 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur14 poses of this section, the term ‘recyclable material’ means

15 scrap paper, scrap plastic, scrap glass, scrap textiles,

16 scrap rubber (other than whole tires), scrap metal, or

17 spent lead-acid, spent nickel-cadmium and other spent

18 batteries, as well as minor amounts of material incident

19 to or adhering to the scrap material as a result of its nor20 mal and customary use prior to becoming scrap.

21 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER,

22 PLASTIC, GLASS, TEXTILES, OR RUBBER.—Transactions

23 involving scrap paper, scrap plastic, scrap glass, scrap tex24 tiles, or scrap rubber (other than whole tires) shall be

25 deemed to be arranging for recycling if the person who
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1 arranged for the transaction (by selling recyclable material

2 or otherwise arranging for the recycling of recyclable ma3 terial) can demonstrate by a preponderance of the evi4 dence that all of the following criteria were met at the

5 time of the transaction:

6 ‘‘(1) The recyclable material met a commercial

7 specification grade.

8 ‘‘(2) A market existed for the recyclable mate9 rial.

10 ‘‘(3) A substantial portion of the recyclable ma11 terial was made available for use as a feedstock for

12 the manufacture of a new saleable product.

13 ‘‘(4) The recyclable material could have been a

14 replacement or substitute for a virgin raw material,

15 or the product to be made from the recyclable mate16 rial could have been a replacement or substitute for

17 a product made, in whole or in part, from a virgin

18 raw material.

19 ‘‘(5) For transactions occurring 90 days or

20 more after the date of enactment of this section, the

21 person exercised reasonable care to determine that

22 the facility where the recyclable material would be

23 handled, processed, reclaimed, or otherwise managed

24 by another person (hereinafter in this section re25 ferred to as a ‘consuming facility’) was in compli-
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1 ance with substantive (not procedural or administra2 tive) provisions of any Federal, State, or local envi3 ronmental law or regulation, or compliance order or

4 decree issued pursuant thereto, applicable to the

5 handling, processing, reclamation, storage, or other

6 management activities associated with the recyclable

7 material.

8 ‘‘(6) For purposes of this subsection, ‘reason9 able care’ shall be determined using criteria that in10 clude (but are not limited to) (A) the price paid in

11 the recycling transaction; (B) the ability of the per12 son to detect the nature of the consuming facility’s

13 operations concerning its handling, processing, rec14 lamation, or other management activities associated

15 with the recyclable material; and (C) the result of

16 inquiries made to the appropriate Federal, State, or

17 local environmental agency (or agencies) regarding

18 the consuming facility’s past and current compliance

19 with substantive (not procedural or administrative)

20 provisions of any Federal, State, or local environ21 mental law or regulation, or compliance order or de22 cree issued pursuant thereto, applicable to the han23 dling, processing, reclamation, storage, or other

24 management activities associated with the recyclable

25 material. For the purposes of this paragraph, a re-
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1 quirement to obtain a permit applicable to the han2 dling, processing, reclamation, or other management

3 activity associated with the recyclable materials shall

4 be deemed to be a substantive provision.

5 ‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—(1)

6 Transactions involving scrap metal shall be deemed to be

7 arranging for recycling if the person who arranged for the

8 transaction (by selling recyclable material or otherwise ar9 ranging for the recycling of recyclable material) can dem10 onstrate by a preponderance of the evidence that at the

11 time of the transaction—

12 ‘‘(A) the person met the criteria set forth in

13 subsection (c) with respect to the scrap metal; and

14 ‘‘(B) the person was in compliance with any ap15 plicable regulations or standards regarding the stor16 age, transport, management, or other activities asso17 ciated with the recycling of scrap metal that the Ad18 ministrator promulgates under the Solid Waste Dis19 posal Act subsequent to the enactment of this sec20 tion and with regard to transactions occurring after

21 the effective date of such regulations or standards.

22 ‘‘(2) For purposes of this section, the term ‘scrap

23 metal’ means—

24 ‘‘(A) bits and pieces of metal parts (e.g., bars,

25 turnings, fines, rods, sheets, wire) or metal pieces
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1 that may be combined together with bolts or solder2 ing (e.g., radiators, scrap automobiles, railroad box

3 cars), which when worn or superfluous can be recy4 cled; and

5 ‘‘(B) metal byproducts that are not one of the

6 primary products of a production process and are

7 not solely or separately produced by the production

8 process (e.g., slag, skimmings, drosses).

9 The term does not include any steel shipping container

10 with a capacity of 30 liters to 3,000 liters, whether intact

11 or not, having any hazardous substance (but not metal

12 bits or pieces) in or adhering to the container.

13 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—(1)

14 Transactions involving spent lead-acid batteries, spent

15 nickel-cadmium batteries or other spent batteries shall be

16 deemed to be arranging for recycling if the person who

17 arranged for the transaction (by selling recyclable material

18 or otherwise arranging for the recycling of recyclable ma19 terial) can demonstrate by a preponderance of the evi20 dence that at the time of the transaction—

21 ‘‘(A) the person met the criteria set forth in

22 subsection (c) with respect to the spent lead-acid

23 batteries, spent nickel-cadmium batteries, or other

24 spent batteries but did not recover the valuable com25 ponents of such batteries; and
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1 ‘‘(B)(i) with respect to transactions involving

2 lead-acid batteries, the person was in compliance

3 with applicable Federal environmental regulations or

4 standards, and any amendments thereto, regarding

5 the storage, transport, management, or other activi6 ties associated with the recycling of spent lead-acid

7 batteries;

8 ‘‘(ii) with respect to transactions involving nick9 el-cadmium batteries, Federal environmental regula10 tions or standards are in effect regarding the stor11 age, transport, management, or other activities asso12 ciated with the recycling of spent nickel-cadmium

13 batteries, and the person was in compliance with ap14 plicable regulations or standards or any amendments

15 thereto; or

16 ‘‘(iii) with respect to transactions involving

17 other spent batteries, Federal environmental regula18 tions or standards are in effect regarding the stor19 age, transport, management, or other activities asso20 ciated with the recycling of such batteries, and the

21 person was in compliance with applicable regulations

22 or standards or any amendments thereto.

23 ‘‘(2) For purposes of paragraph (1)(A) of this sub24 section, a person who, by contract, arranges or pays for

25 processing of batteries by an unrelated third person and
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1 receives from such third person materials reclaimed from

2 such batteries shall not thereby be deemed to recover the

3 valuable components of such batteries.

4 ‘‘(f) EXCLUSIONS.—(1) The exemptions set forth in

5 subsections (c), (d), and (e) shall not apply if—

6 ‘‘(A) the person had an objectively reasonable

7 basis to believe at the time of the recycling trans8 action—

9 ‘‘(i) that the recyclable material would not

10 be recycled,

11 ‘‘(ii) that the recyclable material would be

12 burned as fuel, or for energy recovery or incin13 eration, or

14 ‘‘(iii) for transactions occurring before 90

15 days after the date of the enactment of this sec16 tion, that the consuming facility was not in

17 compliance with a substantive (not a procedural

18 or administrative) provision of any Federal,

19 State, or local environmental law or regulation,

20 or compliance order or decree issued pursuant

21 thereto, applicable to the handling, processing,

22 reclamation, or other management activities as23 sociated with the recyclable material; or
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1 ‘‘(B) the person added hazardous substances to

2 the recyclable material for purposes other than proc3 essing for recycling; or

4 ‘‘(C) the person failed to exercise reasonable

5 care with respect to the management and handling

6 of the recyclable material.

7 ‘‘(2) For purposes of this subsection, an objectively

8 reasonable basis for belief shall be determined using cri9 teria that include (but are not limited to) the size of the

10 person’s business, customary industry practices, the price

11 paid in the recycling transaction, and the ability of the

12 person to detect the nature of the consuming facility’s op13 erations concerning its handling, processing, reclamation

14 or other management activities associated with the recy15 clable material.

16 ‘‘(3) For purposes of this subsection, a requirement

17 to obtain a permit applicable to the handling, processing,

18 reclamation, or other management activities associated

19 with recyclable material shall be deemed to be a sub20 stantive provision.

21 ‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing in

22 this section shall be deemed to affect the liability of a per23 son under paragraph (1) or (2) of section 107(a).

24 ‘‘(h) PCBS.—An exemption under this section does

25 not apply if the recyclable material contained poly-
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1 chlorinated biphenyls in excess of 50 parts per million or

2 any new standard promulgated pursuant to applicable

3 Federal laws.

4 ‘‘(i) REGULATIONS.—The Administrator has the au5 thority, under section 115, to promulgate regulations con6 cerning this section.

7 ‘‘(j) EFFECT ON PENDING OR CONCLUDED AC8 TIONS.—The exemptions provided in this section shall not

9 affect any concluded judicial or administrative action or

10 any judicial action pending prior to the date of the enact11 ment of this section.

12 ‘‘(k) LIABILITY FOR ATTORNEYS’ FEES FOR CER13 TAIN ACTIONS.—Any person who commences an action in

14 contribution against a person who is not liable by oper15 ation of this section shall be liable to that person for all

16 reasonable costs of defending that action, including all

17 reasonable attorneys’ and expert witness fees.

18 ‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER

19 LAWS.—Nothing in this section shall affect—

20 ‘‘(1) liability under any other Federal, State, or

21 local statute or regulation promulgated pursuant to

22 any such statute, including any requirements pro23 mulgated by the Administrator under the Solid

24 Waste Disposal Act; or
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1 ‘‘(2) the ability of the Administrator to promul2 gate regulations under any other statute, including

3 the Solid Waste Disposal Act.’’.

4 SEC. 216. INFORMATION GATHERING AND ACCESS.

5 (a) ADDITIONAL INFORMATION.—Section 104(e)(2)

6 (42 U.S.C. 9604(e)(2)) is amended—

7 (1) by striking subparagraph (C) and inserting:

8 ‘‘(C) The ability of a person to pay for or

9 to perform a response action.’’.

10 (b) CONFIDENTIALITY REQUIREMENTS FOR CON11 TRACTORS.—Paragraph (7) of section 104(e) is amended

12 by adding at the end the following new subparagraph:

13 ‘‘(G)(i) No person described in clause (ii) may

14 disclose any record, report, document, or other infor15 mation referred to in subparagraph (A)(i) without

16 the permission of the President (or the State, as the

17 case may be).

18 ‘‘(ii) A person described in this clause is any

19 person—

20 ‘‘(I) who is not an employee of the United

21 States Government; and

22 ‘‘(II) who, by virtue of the person’s duties

23 under a contract or cooperative agreement with

24 the United States under this section to perform

25 work for the United States Government or im-
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1 plement the requirements of this Act, has re2 ceived information obtained under this section

3 (or any record, report, or document containing

4 such information) which, if requested from the

5 United States Government pursuant to section

6 552 of title 5, United States Code, would be ex7 empt from disclosure by reason of subsection

8 (b) of such section.’’.

9 (c) CONFIDENTIALITY IN GENERAL.—Subparagraph

10 (A) of section 104(e)(7) is amended to read as follows:

11 ‘‘(A) Any records, reports, documents, or infor12 mation obtained from any person under this section

13 (including records, reports, documents, or informa14 tion obtained by representatives of the President (or

15 the State as the case may be) and records, reports,

16 documents, or information obtained pursuant to a

17 contract, grant, or other agreement to perform work

18 pursuant to this section) shall be available to the

19 public not later than 45 days after the records, re20 ports, or information is obtained, except as follows:

21 ‘‘(i) Upon a showing satisfactory to the

22 President (or the State, as the case may be) by

23 any person that records, reports, documents, or

24 information, or any particular part thereof

25 (other than health or safety effects data), to
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1 which the President (or the State, as the case

2 may be) or any officer, employee, or representa3 tive has access under this section if made public

4 would divulge information entitled to protection

5 under section 1905 of title 18, United States

6 Code, such information or particular portion

7 thereof shall be considered confidential in ac8 cordance with the purposes of that section, ex9 cept as otherwise provided in this clause. Any

10 such record, report, document, or information

11 may be disclosed to other officers, employees, or

12 authorized representatives of the United States

13 carrying out this Act, when relevant in any pro14 ceeding under this Act, including any allocator

15 appointed pursuant to section 128. If such

16 records, reports, documents, or information are

17 obtained or submitted to the United States (or

18 the State, as the case may be) pursuant to a

19 contract, grant, or other agreement to perform

20 work pursuant to this section, such record, re21 port, document, or information may be dis22 closed to persons from whom the President

23 seeks to recover costs pursuant to this Act.

24 ‘‘(ii) This section does not require that in25 formation which is exempt from disclosure pur-
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1 suant to section 552(a) of title 5, United States

2 Code, by reason of subsection (b) of such sec3 tion, be available to the public. The disclosure

4 of any such information pursuant to this sec5 tion shall not authorize disclosure to other par6 ties or be deemed to waive any confidentiality

7 privilege available under any Federal or State

8 law.’’.

9 (d) AVAILABILITY OF INFORMATION TO CON10 GRESS.—Subsection 104(e) is further amended by adding

11 after paragraph (7) the following new paragraph:

12 ‘‘(8) AVAILABILITY OF INFORMATION TO CON13 GRESS.—Nothing in this subsection shall be con14 strued to authorize any person, including any allo15 cator appointed pursuant to section 128, to withhold

16 any documents or information from Congress, or any

17 duly authorized Committee thereof, or limit in any

18 manner the right of Congress, or any duly author19 ized Committee thereof, to obtain such documents or

20 information.’’.

21 TITLE III—BROWNFIELDS AND

22 VOLUNTARY CLEANUPS

TITLE III—BROWNFIELDS AND VOLUNTARY CLEANUPS

Sec. 301. State voluntary response programs.

Sec. 302. Lender and fiduciary liability.

Sec. 303. Innocent landowners.
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Sec. 304. Limitation on Federal enforcement actions under CERCLA for

States with approved remedial action programs.

Sec. 305. Bona fide prospective purchaser liability.

1 SEC. 301. STATE VOLUNTARY RESPONSE PROGRAMS.

2 (a) FINDINGS.—Congress finds the following:

3 (1) Brownfields are abandoned or underutilized

4 industrial sites that may contain environmental con5 tamination, often located in urban and economically

6 distressed areas.

7 (2) Brownfields, which may number in the hun8 dreds of thousands nationwide, devalue surrounding

9 property, erode local tax bases, and prevent job

10 growth.

11 (3) Despite potentially great productive value,

12 prospective developers avoid brownfields because of

13 the uncertainty of cleanup and development costs,

14 which leads to construction on undeveloped so-called

15 greenfield sites, contributing to urban sprawl, creat16 ing infrastructure problems, and reducing the

17 amount of open spaces.

18 (4) Lenders and fiduciaries hesitate to finance

19 or encourage projects to redevelop brownfields be20 cause of liability for environmental contamination

21 and the uncertainty of cleanup and development

22 costs, and therefore brownfields remain undeveloped

23 and the environmental contamination is not quickly

24 addressed.
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1 (5) Redevelopment and cleanup of brownfields

2 would reduce environmental contamination, encour3 age job growth, and curb the development of green4 fields.

5 (6) State voluntary programs to address envi6 ronmental contamination, and Federal liability re7 forms to encourage lenders and developers to invest

8 in brownfield sites, can be very effective in promot9 ing the redevelopment of brownfields.

10 (b) PURPOSES AND OBJECTIVES.—The purposes and

11 objectives of this section are to—

12 (1) significantly increase the pace of response

13 activities at contaminated sites by promoting and

14 encouraging the creation, development, and expan15 sion of State voluntary response programs; and

16 (2) benefit the public health, welfare, and the

17 environment by returning contaminated sites to eco18 nomically productive or other beneficial uses.

19 (c) STATE VOLUNTARY RESPONSE PROGRAMS.—

20 Title I is amended by adding after section 129, as added

21 by section 215, the following new section:

22 ‘‘SEC. 130. STATE VOLUNTARY RESPONSE PROGRAMS.

23 ‘‘(a) ASSISTANCE TO STATES.—The Administrator

24 shall provide technical and other assistance to States to
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1 establish and expand voluntary response programs to in2 clude any of the elements listed in subsection (b).

3 ‘‘(b) ELEMENTS OF VOLUNTARY RESPONSE PRO4 GRAM.—The elements of a voluntary response program eli5 gible for assistance under subsection (a) are the following:

6 ‘‘(1) Opportunities for technical assistance for

7 voluntary response actions.

8 ‘‘(2) Adequate opportunities for public partici9 pation, including prior notice and opportunity for

10 comment, in appropriate circumstances, in selecting

11 response actions.

12 ‘‘(3) Procedures to ensure expeditious voluntary

13 response actions.

14 ‘‘(4) Adequate oversight and enforcement au15 thorities to ensure that voluntary response actions

16 are protective of human health and the environment,

17 are conducted in accordance with an appropriate re18 sponse action plan and ensure, if necessary, comple19 tion of response actions if the person conducting the

20 voluntary response action fails or refuses to complete

21 the necessary response activities, including operation

22 and maintenance or long-term monitoring activities.

23 ‘‘(5) Mechanisms for the approval of a vol24 untary response action plan.
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1 ‘‘(6) A requirement for a certification or similar

2 documentation from the State to the person conduct3 ing the voluntary response action indicating that the

4 response is complete.’’.

5 SEC. 302. LENDER AND FIDUCIARY LIABILITY.

6 (a) LENDER LIABILITY.—(1) Section 107 (42 U.S.C.

7 9607) is amended by adding after subsection (n), as added

8 by section 203, the following new subsection:

9 ‘‘(o) LENDER LIABILITY.—

10 ‘‘(1) PARTICIPATION IN MANAGEMENT.—

11 ‘‘(A) IN GENERAL.—A person who holds

12 indicia of ownership primarily to protect the

13 person’s security interest in a vessel or facility

14 shall not be considered to have participated in

15 management, as that term is used in section

16 101(20), unless the person—

17 ‘‘(i) exercises decisionmaking control

18 over the borrower’s environmental compli19 ance, including undertaking responsibility

20 for the hazardous substance handling or

21 disposal practices of the vessel or facility;

22 or

23 ‘‘(ii) exercises control at a level com24 parable to that of a manager of the bor25 rower’s vessel or facility, including assum-
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1 ing or manifesting responsibility for the

2 overall management of the vessel or facility

3 encompassing day-to-day decisionmaking

4 over either environmental compliance or

5 over the operational, as opposed to finan6 cial and administrative, aspects of the ves7 sel or facility.

8 ‘‘(B) OPERATIONAL ASPECTS DEFINED.—

9 In subparagraph (A)(i), the term ‘operational

10 aspects’ includes functions such as those of a

11 facility or plant manager, operations manager,

12 chief operating officer, or chief executive officer.

13 ‘‘(2) EXCLUSIONS.—The term ‘participation in

14 management’, as used in section 101(20), does not

15 include any of the following:

16 ‘‘(A) The mere capacity to influence, or

17 ability to influence, or the unexercised right to

18 control vessel or facility operations.

19 ‘‘(B) Any act of a security interest holder

20 to require another person to comply with appli21 cable laws or to respond lawfully to disposal of

22 any hazardous substance.

23 ‘‘(C) Conducting an act or failing to act

24 prior to the time that a security interest is cre25 ated in a vessel or facility.
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1 ‘‘(D) Holding a security interest in a vessel

2 or facility or abandoning or releasing such a se3 curity interest.

4 ‘‘(E) Including in the terms of an exten5 sion of credit, or in a contract or security

6 agreement relating to such an extension, cov7 enants, warranties, or other terms and condi8 tions that relate to environmental compliance.

9 ‘‘(F) Monitoring or enforcing the terms

10 and conditions of the extension of credit or se11 curity interest.

12 ‘‘(G) Monitoring or undertaking 1 or more

13 inspections of the vessel or facility.

14 ‘‘(H) Under subsection (d) of this section,

15 conducting a response action or other lawful

16 means of addressing the release or threatened

17 release of a hazardous substance in connection

18 with the vessel or facility prior to, during, or

19 upon the expiration of the term of the extension

20 of credit.

21 ‘‘(I) Providing financial or other advice or

22 counseling in an effort to mitigate, prevent, or

23 cure default or diminution in the value of the

24 vessel or facility.
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1 ‘‘(J) Restructuring, renegotiating, or oth2 erwise agreeing to alter the terms and condi3 tions of the extension of credit or security inter4 est or exercising forbearance.

5 ‘‘(K) Exercising other remedies that may

6 be available under applicable law for the breach

7 of any term or condition of the extension of

8 credit or security agreement.

9 ‘‘(L) Holding legal or equitable title ac10 quired by a security interest holder through

11 foreclosure or its equivalents primarily to pro12 tect a security interest, provided that the holder

13 undertakes to sell, re-lease, or otherwise divest

14 the property in a reasonably expeditious man15 ner on commercially reasonable terms, taking

16 into account market conditions and legal and

17 regulatory requirements.

18 ‘‘(M) Conducting or directing another to

19 conduct a response action under section

20 107(d)(1), under the direction of an on-scene

21 coordinator or pursuant to a State plan under

22 section 114(e) or a State program under sub23 title K of the Solid Waste Disposal Act.

24 ‘‘(3) SECURITY INTEREST.—The term ‘security

25 interest’, as used in such section 101(20), includes
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1 rights under a mortgage, deed of trust, assignment,

2 judgment, lien, pledge, security agreement, factoring

3 agreement, lease, or any other right accruing to per4 son to secure the repayment of money, the perform5 ance of a duty, or some other obligation.’’.

6 (2) Section 101(20) of such Act is amended by add7 ing before the period at the end of the last sentence in

8 subparagraph (A) the following: ‘‘, as specified in section

9 107(o)’’.

10 (b) FIDUCIARY LIABILITY.—Section 107 is further

11 amended by adding at the end the following new sub12 sections:

13 ‘‘(p) LIABILITY OF FIDUCIARIES.—

14 ‘‘(1) EXCLUSION OF FIDUCIARY FROM OWNER

15 OR OPERATOR.—For purposes of this Act:

16 ‘‘(A) The term ‘owner or operator’, as used

17 in section 101(20), does not include a fiduciary

18 who holds legal title to, is the mortgagee or se19 cured party with respect to, controls, or man20 ages, directly or indirectly, any facility or vessel

21 for purposes of administering an estate or trust

22 of which such facility or vessel is a part.

23 ‘‘(B) The term ‘fiduciary’ does not include

24 any person who had a role in establishing a

25 trust, estate, or fiduciary relationship, and such
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1 trust, estate, or fiduciary relationship has no

2 objectively reasonable or substantial purpose

3 apart from the avoidance or limitation of liabil4 ity under this Act. The term means a person

5 who is acting in any of the following representa6 tive capacities:

7 ‘‘(i) An executor or administrator of

8 an estate, including a voluntary executor

9 or a voluntary administrator.

10 ‘‘(ii) A guardian.

11 ‘‘(iii) A conservator.

12 ‘‘(iv) A trustee under a will under

13 which the trustee takes title to, or other14 wise controls or manages, property for the

15 purpose of protecting or conserving such

16 property under the ordinary rules applied

17 in State courts.

18 ‘‘(v) A court-appointed receiver.

19 ‘‘(vi) A trustee appointed in proceed20 ings under Federal bankruptcy laws.

21 ‘‘(vii) An assignee or a trustee acting

22 under an assignment made for the benefit

23 of creditors.

24 ‘‘(viii) A trustee, or any successor

25 thereto, pursuant to an indenture agree-
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1 ment, trust agreement, lease, or similar fi2 nancing agreement, for debt securities, cer3 tificates of interest of participation in any

4 such debt securities, or other forms of in5 debtedness as to which it is not, in its ca6 pacity as trustee, the lender.

7 ‘‘(C) A person acts in a ‘fiduciary capacity’

8 with respect to property if the person holds title

9 to such property, or otherwise has control of or

10 an interest in such property, pursuant to the

11 exercise of such person’s responsibilities as a fi12 duciary.

13 ‘‘(2) AMOUNT OF LIABILITY.—The liability of a

14 fiduciary that is liable under any other provision of

15 this Act for the release or threatened release of a

16 hazardous substance at, from, or in connection with

17 property held in a fiduciary capacity, may not exceed

18 the assets held in such fiduciary capacity that are

19 available to indemnify the fiduciary.

20 ‘‘(3) EXEMPTION.—Except as provided in para21 graph (4), a fiduciary shall not be liable in its indi22 vidual capacity under this section.

23 ‘‘(4) EXCEPTIONS.—Nothing in this subsection

24 may be construed as preventing claims under this

25 Act against—
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1 ‘‘(A) the assets of the estate or trust ad2 ministered by a fiduciary; or

3 ‘‘(B) non-employee agents or independent

4 contractors retained by a fiduciary.

5 ‘‘(5) NEGLIGENCE OR INTENTIONAL MIS6 CONDUCT.—Nothing in this subsection may be con7 strued as preventing claims under this Act against

8 a fiduciary in its individual capacity whose negligent

9 acts or intentional misconduct caused a release or

10 threatened release of hazardous substances at a fa11 cility or vessel.

12 ‘‘(6) SAFE HARBOR.—A fiduciary shall not be

13 liable in its individual capacity under this Act—

14 ‘‘(A) for conducting or directing another to

15 conduct a response action under section

16 107(d)(1), under the direction of an on-scene

17 coordinator or pursuant to a State plan under

18 section 114(e) or a State program under sub19 title K of the Solid Waste Disposal Act;

20 ‘‘(B) for undertaking or directing another

21 to undertake any other lawful means of ad22 dressing hazardous substances in connection

23 with the property;

24 ‘‘(C) for terminating the fiduciary relation25 ship;
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1 ‘‘(D) for including in the terms of the fidu2 ciary agreement covenants, warranties, or other

3 terms and conditions that relate to compliance

4 with environmental laws, or monitoring or en5 forcing such terms;

6 ‘‘(E) for monitoring or undertaking inspec7 tions of the property;

8 ‘‘(F) for providing financial or other advice

9 or counseling to other parties to the fiduciary

10 relationship, including the settler or beneficiary;

11 ‘‘(G) for restructuring, renegotiating, or

12 otherwise altering the terms and conditions of

13 the fiduciary relationship;

14 ‘‘(H) for contamination that occurred be15 fore the fiduciary’s period of service began; or

16 ‘‘(I) for declining to take any of the ac17 tions described in subparagraphs (B) through

18 (G).

19 ‘‘(q) LIABILITY LIMITATIONS.—

20 ‘‘(1) ACTUAL BENEFIT.—The liability of a lend21 er that is liable under any other provision of this Act

22 for the release or threatened release of a hazardous

23 substance at, from, or in connection with property—

24 ‘‘(A) acquired through foreclosure;
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1 ‘‘(B) subject to a security interest held by

2 such lender;

3 ‘‘(C) held by a lessor pursuant to the

4 terms of an extension of credit; or

5 ‘‘(D) subject to financial control or finan6 cial oversight pursuant to the terms of an ex7 tension of credit;

8 shall be limited to the actual benefit conferred on

9 such lender by a removal, remedial, or other re10 sponse action undertaken by another person.

11 ‘‘(2) COMPUTATION OF ACTUAL BENEFIT.—For

12 purposes of this section, the actual benefit conferred

13 on a lender by a removal, remedial, or other re14 sponse action shall be equal to the net gain, if any,

15 realized by such lender due to such action. For pur16 poses of this subsection, the ‘net gain’ shall not ex17 ceed the amount realized by the lender on the sale

18 of property less acquisition, holding, and disposition

19 costs.

20 ‘‘(3) EXCLUSION.—Notwithstanding paragraph

21 (1), but subject to the provisions of section 107(d),

22 a lender that directly caused or contributed to the

23 release of a hazardous substance may be liable for

24 a response action pertaining to that release.
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1 ‘‘(4) DEFINITIONS.—For purposes of this Act,

2 the following definitions shall apply:

3 ‘‘(A) PROPERTY ACQUIRED THROUGH

4 FORECLOSURE.—

5 ‘‘(i) IN GENERAL.—The term ‘prop6 erty acquired through foreclosure’ means

7 property acquired, or the act of acquiring

8 property, from a nonaffiliated party by a

9 lender—

10 ‘‘(I) through purchase at sales

11 under judgment or decree, power of

12 sales, nonjudicial foreclosure sales, or

13 from a trustee, deed in lieu of fore14 closure, or similar conveyance, or

15 through repossession, if such property

16 was security for an extension of credit

17 previously contracted;

18 ‘‘(II) through conveyance pursu19 ant to an extension of credit pre20 viously contracted, including the ter21 mination of a lease agreement; or

22 ‘‘(III) through any other formal

23 or informal manner by which the lend24 er temporarily acquires, for subse-
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1 quent disposition, possession of collat2 eral in order to protect its interest.

3 ‘‘(ii) EXCLUSION.—Property is not ac4 quired through foreclosure if the lender

5 does not seek to sell or otherwise divest

6 such property in a reasonably expeditious

7 manner, on commercially reasonable terms,

8 taking into account market conditions and

9 legal and regulatory requirements.

10 ‘‘(B) LENDER.—The term ‘lender’

11 means—

12 ‘‘(i) a person that makes a bona fide

13 extension of credit to, or takes a security

14 interest from, another party;

15 ‘‘(ii) the Federal National Mortgage

16 Association, the Federal Home Loan Mort17 gage Corporation, the Federal Agricultural

18 Mortgage Corporation, or other entity that

19 in a bona fide manner is engaged in the

20 business of buying or selling loans or inter21 ests therein.

22 ‘‘(iii) any person engaged in the busi23 ness of insuring or guaranteeing against a

24 default in the repayment of an extension of

25 credit, or acting as a surety with respect to
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1 an extension of credit, to another party;

2 and

3 ‘‘(iv) any person regularly engaged in

4 the business of providing title insurance

5 who acquires the property as a result of

6 assignment or conveyance in the course of

7 underwriting claims and claims settlement.

8 ‘‘(C) EXTENSIONS OF CREDIT.—The term

9 ‘extension of credit’ includes a lease finance

10 transaction—

11 ‘‘(i) in which the lessor does not ini12 tially select the leased property and does

13 not during the lease term control the daily

14 operations or maintenance of the property;

15 or

16 ‘‘(ii) that conforms to any regulations

17 issued by the appropriate Federal banking

18 agency (as defined in section 3 of the Fed19 eral Deposit Insurance Act) or the appro20 priate State banking regulatory authority.

21 ‘‘(D) FORECLOSURE; FORECLOSE.—The

22 terms ‘foreclosure’ and ‘foreclose’ mean, respec23 tively, acquiring, and to acquire, a vessel or fa24 cility through—
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1 ‘‘(i) purchase at sale under a judg2 ment or decree, a power of sale, a

3 nonjudicial foreclosure sale, or from a

4 trustee, deed in lieu of foreclosure, or simi5 lar conveyance, or through repossession, if

6 such vessel or facility was security for an

7 extension of credit previously contracted;

8 ‘‘(ii) conveyance pursuant to an exten9 sion of credit previously contracted, includ10 ing the termination of a lease agreement;

11 or

12 ‘‘(iii) any other formal or informal

13 manner by which the person acquires, for

14 subsequent disposition, possession of collat15 eral in order to protect the security inter16 est of the person.–

17 ‘‘(r) SAVINGS CLAUSE.—Nothing in subsections (o),

18 (p), and (q) (relating to lender and fiduciary liability) shall

19 diminish the rights or immunities or other defenses that

20 are available under this section to any party subject to

21 the provisions of those subsections.’’.

22 SEC. 303. INNOCENT LANDOWNERS.

23 Section 107, as amended by section 302, is further

24 amended by adding at the end the following new sub25 section:
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1 ‘‘(s) INNOCENT LANDOWNERS.—

2 ‘‘(1) CONDUCT OF ENVIRONMENTAL ASSESS3 MENT.— A person who has acquired real property

4 shall have made all appropriate inquiry within the

5 meaning of subparagraph (B) of section 101(35) if

6 he establishes that, within 180 days prior to the

7 time of acquisition, an environmental site assess8 ment of the real property was conducted which

9 meets the requirements of this subparagraph.

10 ‘‘(2) DEFINITION OF ENVIRONMENTAL SITE AS11 SESSMENT.—For purposes of this subsection, the

12 term ‘environmental site assessment’ means an as13 sessment conducted in accordance with the stand14 ards set forth in the American Society for Testing

15 and Materials (ASTM) Standard E1527-94, titled

16 ‘Standard Practice for Environmental Site Assess17 ments: Phase I Environmental Site Assessment

18 Process’ or with alternative standards issued by rule

19 by the Administrator or promulgated or developed

20 by others and designated by rule by the Adminis21 trator. Before issuing or designating alternative

22 standards, the Administrator shall first conduct a

23 study of commercial and industrial practices con24 cerning environmental site assessments in the trans25 fer of real property in the United States. Any such
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1 standards issued or designated by the Administrator

2 shall also be deemed to constitute commercially rea3 sonable and generally accepted standards and prac4 tices for purposes of this paragraph. In issuing or

5 designating any such standards, the Administrator

6 shall consider requirements governing each of the

7 following:

8 ‘‘(A) Interviews of owners, operators, and

9 occupants of the property to determine informa10 tion regarding the potential for contamination.

11 ‘‘(B) Review of historical sources as nec12 essary to determine previous uses and occupan13 cies of the property since the property was first

14 developed. For purposes of this subclause, the

15 term ‘historical sources’ means any of the fol16 lowing, if they are reasonably ascertainable: re17 corded chain of title documents regarding the

18 real property, including all deeds, easements,

19 leases, restrictions, and covenants, aerial photo20 graphs, fire insurance maps, property tax files,

21 USGS 7.5 minutes topographic maps, local

22 street directories, building department records,

23 zoning/land use records, and any other sources

24 that identify past uses and occupancies of the

25 property.
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1 ‘‘(C) Determination of the existence of re2 corded environmental cleanup liens against the

3 real property which have arisen pursuant to

4 Federal, State, or local statutes.

5 ‘‘(D) Review of reasonably ascertainable

6 Federal, State, and local government records of

7 sites or facilities that are likely to cause or con8 tribute to contamination at the real property,

9 including, as appropriate, investigation reports

10 for such sites or facilities; records of activities

11 likely to cause or contribute to contamination at

12 the real property, including landfill and other

13 disposal location records, underground storage

14 tank records, hazardous waste handler and gen15 erator records and spill reporting records; and

16 such other reasonably ascertainable Federal,

17 State, and local government environmental

18 records which could reflect incidents or activi19 ties which are likely to cause or contribute to

20 contamination at the real property.

21 ‘‘(E) A visual site inspection of the real

22 property and all facilities and improvements on

23 the real property and a visual inspection of im24 mediately adjacent properties, including an in25 vestigation of any hazardous substance use,
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1 storage, treatment, and disposal practices on

2 the property.

3 ‘‘(F) Any specialized knowledge or experi4 ence on the part of the defendant.

5 ‘‘(G) The relationship of the purchase

6 price to the value of the property if

7 uncontaminated.

8 ‘‘(H) Commonly known or reasonably as9 certainable information about the property.

10 ‘‘(I) The obviousness of the presence or

11 likely presence of contamination at the prop12 erty, and the ability to detect such contamina13 tion by appropriate investigation.

14 A record shall be considered to be ‘reasonably ascer15 tainable’ for purposes of this paragraph if a copy or

16 reasonable facsimile of the record is publicly avail17 able by request (within reasonable time and cost

18 constraints) and the record is practically reviewable.

19 ‘‘(3) MAINTENANCE OF INFORMATION.—No

20 presumption shall arise under paragraph (1) unless

21 the defendant has maintained a compilation of the

22 information reviewed and gathered in the course of

23 the environmental site assessment.

24 ‘‘(4) DEFINITION OF CONTAMINATION.—For

25 the purposes of this subsection and section 101(35),
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1 the term ‘contamination’ means an existing release,

2 a past release, or the material threat of a release of

3 a hazardous substance, other than de minimis condi4 tions that generally do not present a material risk

5 of harm to public health or welfare or the environ6 ment.’’.

7 (b) CROSS REFERENCE.—Section 101(35)(B) (42

8 U.S.C. 9601(35)(B)) is amended by inserting after ‘‘all

9 appropriate inquiry’’ the following: ‘‘(as specified in sec10 tion 107(s))’’.

11 SEC. 304. LIMITATION ON FEDERAL ENFORCEMENT AC12 TIONS UNDER CERCLA FOR STATES WITH AP13 PROVED REMEDIAL ACTION PROGRAMS.

14 Section 114 is amended by adding at the end the fol15 lowing new subsection:

16 ‘‘(e) FACILITIES IN STATES WITH APPROVED REME17 DIAL ACTION PROGRAMS.—

18 ‘‘(1) ENFORCEMENT PROHIBITION.—

19 ‘‘(A) RELEASES SUBJECT TO STATE

20 PLANS.—For any facility at which there is a re21 lease or threatened release of hazardous sub22 stances subject to a State remedial action plan

23 adopted under a State program approved as

24 provided in this subsection, neither the Presi25 dent nor any other person may use any author-
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1 ity of this Act to take a new administrative or

2 judicial enforcement action, or to bring a pri3 vate civil action, against any person regarding

4 any matter that is within the scope of such

5 plan.

6 ‘‘(B) RELEASES NOT CURRENTLY SUBJECT

7 TO STATE PLANS.—For any facility at which

8 there is a release or threatened release of haz9 ardous substances that is not subject to a State

10 remedial action plan in a State with an ap11 proved program, the President shall provide no12 tice to the State within 48 hours after issuing

13 any order under section 106(a) addressing such

14 release or threatened release. Such an order in

15 an approved State shall cease to have any force

16 and effect 90 days after issuance unless the

17 State concurs in the continuation of such order.

18 ‘‘(C) COST OR DAMAGE RECOVERY AC19 TIONS.—No action brought by a State or In20 dian tribe for the recovery of costs or damages

21 under section 107 shall be treated as an admin22 istrative or judicial enforcement action or a pri23 vate civil action for purposes of subparagraph

24 (A).
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1 ‘‘(2) STATE REMEDIAL ACTION PROGRAMS.—

2 Any State may establish and submit to the Adminis3 trator for approval a remedial action program to

4 carry out remedial action plans pursuant to State

5 law with respect to releases or threatened releases of

6 hazardous substances at any category or categories

7 of facilities.

8 ‘‘(3) RELATIONSHIP TO SUBTITLE K.—In the

9 case of any remedial action program under subtitle

10 K of the Solid Waste Disposal Act for hazardous

11 substances covered by an authorized State program

12 under such subtitle, the authorization of such pro13 gram shall be treated as the approval of a program

14 under paragraph (2) of this subsection with respect

15 to such substances.

16 ‘‘(4) APPROVAL AND DISAPPROVAL OF APPLICA17 TION.—

18 ‘‘(A) IN GENERAL.—On the last day of the

19 60-day period beginning on the date the Admin20 istrator receives an application made in accord21 ance with paragraph (2), the application is

22 deemed to be approved unless within such 60-

23 day period the Administrator disapproves the

24 application. The Administrator may disapprove

25 the application only if the Administrator finds
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1 that the State does not have the legal authority

2 and the financial and personnel resources, orga3 nization, and expertise to carry out such reme4 dial action program. The Administrator may

5 not place any terms or conditions on an author6 ization made pursuant to this section.

7 ‘‘(B) EXPLANATION AND RESUBMITTAL.—

8 If the Administrator disapproves an application

9 by making one of the findings specified in sub10 paragraph (A), the Administrator shall notify

11 the Governor in writing of the disapproval and

12 explain the basis for such finding within 10

13 days after making such finding but in no event

14 later than 60 days after receiving the applica15 tion. A notification under this subparagraph is

16 final agency action for purposes of judicial re17 view. A State may submit a revised application

18 any time after receiving notice of disapproval.

19 ‘‘(5) WITHDRAWAL OF APPROVAL.—If the Ad20 ministrator finds that a State does not meet the re21 quirements for an approval of a program under this

22 subsection, the Administrator may withdraw the ap23 proval after providing notice and an opportunity to

24 correct deficiencies. The Administrator shall notify a

25 State in writing prior to withdrawing approval. If
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1 the State has not addressed the deficiencies listed in

2 the Administrator’s notification within 90 days after

3 receiving the notification, the approval may be with4 drawn.’’.

5 ‘‘(6) DEFINITION.—The term ‘remedial action

6 plan’ means a document, or portion of a document,

7 including any order, permit, or agreement, that is

8 entered into with, or subject to the approval and

9 oversight of a State with an approved program

10 under this subsection which describes—

11 ‘‘(A) the hazardous substances being man12 aged;

13 ‘‘(B) the manner in which the substance

14 will be managed; and

15 ‘‘(C) the schedule for implementation.’’.

16 SEC. 305. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.

17 (a) LIABILITY.—Section 107(n), as added by section

18 203, is amended by redesignating paragraph (11) as para19 graph (12) and by adding after paragraph (10) the follow20 ing new paragraph:

21 ‘‘(11) BONA FIDE PROSPECTIVE PURCHASER.—

22 (A) Notwithstanding paragraphs (1) through (4) of

23 subsection (a), a person who does not impede the

24 performance of a response action or natural resource

25 restoration at a facility shall not be liable to the ex-
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1 tent liability at such facility is based solely on para2 graph (1) of subsection (a) for a release or threat

3 of release from the facility, and the person is a bona

4 fide prospective purchaser of the facility.

5 ‘‘(B) For purposes of this paragraph, the term

6 ‘bona fide prospective purchaser’ means a person

7 who acquires ownership of a facility after the date

8 of enactment of the Reform of Superfund Act of

9 1995, or a tenant of such a person, who can estab10 lish each of the following by a preponderance of the

11 evidence:

12 ‘‘(i) All active disposal of hazardous sub13 stances at the facility occurred before that per14 son acquired the facility.

15 ‘‘(ii) The person made all appropriate in16 quiry into the previous ownership and uses of

17 the facility and its real property in accordance

18 with generally accepted commercial and cus19 tomary standards and practices. Standards de20 scribed in section 107(s)(2) (relating to inno21 cent landowners) shall satisfy the requirements

22 of this subparagraph. In the case of property

23 for residential or other similar use, purchased

24 by a nongovernmental or noncommercial entity,

25 a site inspection and title search that reveal no
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1 basis for further investigation satisfy the re2 quirements of this subparagraph.

3 ‘‘(iii) The person provided all legally re4 quired notices with respect to the discovery or

5 release of any hazardous substances at the fa6 cility.

7 ‘‘(iv) The person exercised appropriate

8 care with respect to hazardous substances

9 found at the facility by taking reasonable steps

10 to stop on-going releases, prevent threatened

11 future releases of hazardous substances, and

12 prevent or limit human or natural resource ex13 posure to hazardous substances previously re14 leased into the environment.

15 ‘‘(v) The person provides full cooperation,

16 assistance, and facility access to persons au17 thorized to conduct response actions at the fa18 cility, including the cooperation and access nec19 essary for the installation, integrity, operation,

20 and maintenance of any complete or partial re21 sponse action at the facility.

22 ‘‘(vi) The person is not affiliated with any

23 other person liable for response costs at the fa24 cility, through any direct or indirect familial re25 lationship, or any contractual, corporate, or fi-
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1 nancial relationship other than that created by

2 the instruments by which title to the facility is

3 conveyed or financed.’’.

4 (b) PROSPECTIVE PURCHASER AND WINDFALL

5 LIEN.—Section 107, as amended by section 303, is fur6 ther amended by inserting after subsection (s) the follow7 ing new subsection:

8 ‘‘(t) PROSPECTIVE PURCHASER AND WINDFALL

9 LIEN.—(1) In any case in which there are unrecovered

10 response costs at a facility for which an owner of the facil11 ity is not liable by reason of section 107(n)(11), and the

12 conditions described in paragraph (2) are met, the United

13 States shall have a lien upon such facility for such unre14 covered costs. Such lien—

15 ‘‘(A) shall not exceed the increase in fair mar16 ket value of the property attributable to the response

17 action at the time of a subsequent sale or other dis18 position of property;

19 ‘‘(B) shall arise at the time costs are first in20 curred by the United States with respect to a re21 sponse action at the facility;

22 ‘‘(C) shall be subject to the requirements for

23 notice and validity established in paragraph (3) of

24 subsection (l); and
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1 ‘‘(D) shall continue until the earlier of satisfac2 tion of the lien or recovery of all response costs in3 curred at the facility.

4 ‘‘(2) The conditions referred to in paragraph (1) are

5 the following:

6 ‘‘(A) A response action for which there are un7 recovered costs is carried out at the facility.

8 ‘‘(B) Such response action increases the fair

9 market value of the facility above the fair market

10 value of the facility that existed within six months

11 before the response action was taken.

12 ‘‘(3) No lien under this section shall arise (A) with

13 respect to property for which the property owner preceding

14 the first bona fide prospective purchaser is not a liable

15 party or has resolved its liability under this Act, or (B)

16 where an environmental assessment gives the bona fide

17 prospective purchaser no knowledge or reason to know of

18 the release of hazardous substances.’’.

19 TITLE IV—NATURAL RESOURCE

20 DAMAGES

Sec. 401. Natural resource damages.

21 SEC. 401. NATURAL RESOURCE DAMAGES.

22 (a) IN GENERAL.—Section 107(a)(4)(C) is amended

23 to read as follows:
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1 ‘‘(C) damages for measurable and ecologically

2 significant injury to, destruction of, or loss of natu3 ral resources, including the reasonable costs of as4 sessing such injury, destruction, or loss, caused by

5 an actual release, and’’.

6 (b) GENERAL LIMITATIONS ON LIABILITY.—

7 (1) IN GENERAL.—Section 107(c) is amended

8 as follows:

9 (A) By striking ‘‘(c)’’ and inserting ‘‘(c)

10 LIMITATIONS ON LIABILITY.—’’.

11 (B) By aligning paragraph (1) as a para12 graph below the heading for subsection (c) (as

13 added by subparagraph (A), by moving the

14 margin of such paragraph 2 ems to the right,

15 by inserting ‘‘IN GENERAL.—’’ after ‘‘(1)’’, and

16 by moving the margins of subparagraphs (A),

17 (B), and (C) of that paragraph 2 ems to the

18 right.

19 (C) By amending subparagraph (D) of

20 paragraph (1) to read as follows:

21 ‘‘(D) for any incineration vessel the total

22 of all costs of response plus $50,000,000 for

23 any damages under this title.’’.

24 (D) In paragraph (2), by striking ‘‘Not25 withstanding the limitations in paragraph (1)’’
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1 and inserting ‘‘EXCEPTIONS FOR WILLFUL MIS2 CONDUCT AND FAILURE TO COOPERATE.—Not3 withstanding the limitations in paragraphs (1)

4 and (4)’’ and by striking ‘‘or willful neg5 ligence’’.

6 (E) In paragraph (3), by inserting ‘‘PUNI7 TIVE DAMAGES.—’’ before ‘‘If any’’.

8 (F) By moving the margins of paragraphs

9 (2) and (3) 2 ems to the right.

10 (G) By adding the following new para11 graph at the end thereof:

12 ‘‘(4) NATURAL RESOURCE DAMAGE LIMITATION

13 FOR FACILITIES.—Except as provided in paragraphs

14 (1) and (2), the aggregate liability of all responsible

15 parties for damages under subsection (a)(4)(C)

16 caused by the cumulative releases from all facilities

17 shall not exceed $50,000,000 for the following:

18 ‘‘(A) Any area of contamination listed

19 under section 105(a)(8)(B).

20 ‘‘(B) The entire contiguous area of con21 tamination, in the case of any area not listed

22 under section 105(a)(8)(B).’’.

23 (c) NATURAL RESOURCE LIABILITY.—Section 107(f)

24 is amended to read as follows:

25 ‘‘(f) NATURAL RESOURCE LIABILITY.—
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1 ‘‘(1) DEFINITIONS.—For purposes of this sub2 section:

3 ‘‘(A) RESTORATION.— The term ‘restora4 tion’ means rehabilitation, natural recovery, or

5 replacement of an injured, destroyed, or lost

6 natural resource, or acquisition of a substitute

7 or alternative resource of similar type with a

8 reasonable proximity to the injured, destroyed

9 or lost natural resource, to reestablish the

10 measurable and ecologically significant func11 tions, including public use, that such natural

12 resource would have provided to the public

13 under the baseline condition.

14 ‘‘(B) REASONABLE RESTORATION MEAS15 URES.—The term ‘reasonable restoration meas16 ures’ means those restoration measures that are

17 cost-effective, cost-reasonable, and achieve res18 toration in a timely manner.

19 ‘‘(C) COST-EFFECTIVE.—The term ‘cost20 effective’ means the least costly of two or more

21 restoration alternatives or lost use replacement

22 or acquisition alternatives which provide the

23 same or a similar level of services to the public.

24 ‘‘(D) COST-REASONABLE.—The term ‘cost25 reasonable’ means that the costs of a restora-
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1 tion alternative or the costs of a lost use re2 placement or acquisition alternative do not ex3 ceed the value of the services that will be pro4 vided to the public by the selected alternative.

5 Cost-reasonableness shall be based upon a de6 termination of the incremental costs and the in7 cremental benefits of alternatives for reestab8 lishing various degrees of services up to base9 line.

10 ‘‘(E) TIMELY.—The term ‘timely’ means

11 the shortest period of time necessary to meet

12 restoration requirements that takes into ac13 count both cost-effective and cost-reasonable

14 criteria.

15 ‘‘(2) IN GENERAL.—(A) In the case of a meas16 urable and ecologically significant injury to, destruc17 tion of, or loss of natural resources under subpara18 graph (C) of subsection (a), liability shall be—

19 ‘‘(i) to the United States Government for

20 any natural resources that are owned or held in

21 trust by the United States Government or that

22 are selected for transfer (but not transferred as

23 of the date of the injury, destruction, or loss)

24 to an Alaska Native Corporation as part of its

25 acreage entitlement under the Alaska Native
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1 Claims Settlement Act (43 U.S.C. 1601 et

2 seq.);

3 ‘‘(ii) to any State for natural resources

4 within the State that are owned, managed, or

5 held in trust by such State or appertaining to

6 an interstate compact to which such State is a

7 signatory; and

8 ‘‘(iii) to any Indian tribe for natural re9 sources that are owned, managed, or held in

10 trust by or appertaining to such tribe or that

11 are owned by a member of such tribe if such re12 sources are subject to a trust restriction on

13 alienation.

14 ‘‘(B) Sums recovered by the United States Gov15 ernment as trustee under this subsection shall be re16 tained by the trustee, without further appropria17 tions, for use only for reasonable restoration meas18 ures for such natural resources. Sums recovered by

19 a State or Indian tribe as trustee under this sub20 section shall be available for use only for reasonable

21 restoration measures for such natural resources by

22 the State or Indian tribe.

23 ‘‘(3) CONDITIONS.—(A) The measure of dam24 ages in any action under subparagraph (C) of sub25 section (a) shall be limited to the costs of reasonable
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1 restoration, the costs of reasonable assessments of

2 damages, and the value of lost public use of the

3 services provided by the injured natural resources.

4 ‘‘(B) The value of lost public use of the services

5 provided by injured natural resources shall be lim6 ited to the cost of replacement of the lost services

7 with, or the acquisition of, similar services provided

8 by natural resources. The value of public use lost be9 fore December 11, 1980, shall not be recoverable. In

10 determining the value of lost public use, only com11 mitted uses may be used to measure the change

12 from the baseline condition that resulted from injury

13 to the natural resource. The baseline condition

14 means the condition or conditions that would have

15 existed had the release or releases of a hazardous

16 substance or substances that caused the injury, dis17 tribution, or loss not occurred.

18 ‘‘(C) There shall be no recovery under subpara19 graph (C) of subsection (a) for any impairment of

20 nonuse values.

21 ‘‘(D) There shall be no double recovery under

22 subparagraph (C) of subsection (a) for injury to, de23 struction of, or loss of natural resources, whether for

24 damages, natural resource damage response costs, or
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1 otherwise, including assessment costs, under this Act

2 or any other law.

3 ‘‘(E) No liability to the United States or State

4 or Indian tribe shall be imposed under subparagraph

5 (C) of subsection (a) where the party sought to be

6 charged has demonstrated that—

7 ‘‘(i) the damages to natural resources com8 plained of were specifically identified as an irre9 versible and irretrievable commitment of natu10 ral resources in an environmental impact state11 ment, other comparable environment analysis,

12 or the final record of decision; or

13 ‘‘(ii)(I) the decision to grant a permit or li14 cense authorized such commitment of natural

15 resources; and

16 ‘‘(II) the facility or project was otherwise

17 operating within the terms of its permit or li18 cense.

19 ‘‘(F) There shall be no recovery under the au20 thority of subparagraph (C) of subsection (a) where

21 such damages and the release of a hazardous sub22 stance from which such damages resulted have oc23 curred wholly before December 11, 1980.

24 ‘‘(4) DAMAGE ASSESSMENT.—(A) Any natural

25 resource damage assessment conducted for the pur-
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1 poses of this Act and paragraphs (4) and (5) of sec2 tion 311(f) of the Federal Water Pollution Control

3 Act made by a Federal, State, or tribal trustee shall

4 be performed in accordance with the regulations pro5 mulgated under section 301(c) of this Act, except

6 that other methods for assessing natural resource

7 damages may be used if such methods will yield a

8 more cost-effective and cost-reasonable plan for the

9 restoration of natural resources damaged by a par10 ticular discharge of hazardous substances. The party

11 proposing use of such other methods shall in all in12 stances have the burden of establishing that such

13 methods will yield a more cost-effective and cost-rea14 sonable plan for restoration than assessments per15 formed in accordance with the regulations. Injury

16 determination, restoration planning, and quantifica17 tion of restoration costs shall be based on an assess18 ment of actual site-specific conditions and restora19 tion requirements. Such assessments shall be based

20 on, and performed in accordance with, generally ac21 cepted scientific and technical standards, literature,

22 and methodologies that ensure the validity, reliabil23 ity, and cost-effectiveness of assessment results.

24 Such damage assessments may be used by a trustee

25 as the basis for a natural resource damage claim
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1 only if the assessment demonstrates that the hazard2 ous substance release in question was a substantial

3 contributing factor of the alleged natural resource

4 injuries.

5 ‘‘(B) As part of its claim, a trustee may recover

6 only those costs that were incurred directly or indi7 rectly to evaluate the site-specific conditions and to

8 implement restoration measures that are the subject

9 matter of the natural resource damage action.

10 ‘‘(5) SELECTION OF RESTORATION ALTER11 NATIVES.—When selecting reasonable restoration

12 measures, including natural recovery, or when select13 ing lost use replacement or acquisition alternatives a

14 trustee shall select cost-effective and cost-reasonable

15 methods for achieving restoration.’’.

16 (d) SECTION 113 LITIGATION.—The third sentence

17 of section 113(f)(1) is amended to read as follows: ‘‘In

18 resolving contribution claims, the court may allocate re19 sponse costs and natural resource damages among liable

20 parties using such equitable factors as the court deter21 mines are appropriate.’’.

22 (e) REPORTS AND STUDIES.—Section 301(c) is

23 amended to read as follows:

24 ‘‘(c) REPORTS AND STUDIES.—(1) The President,

25 acting through Federal officials designated by the Na-
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1 tional Contingency Plan published under section 105 of

2 this Act, shall promulgate regulations for the assessment

3 of natural resource damages and restoration costs for in4 jury to, destruction of, or loss of natural resources result5 ing from a release of oil or a hazardous substance for the

6 purposes of this Act and section 311(f)(4) and (5) of the

7 Federal Water Pollution Control Act.

8 ‘‘(2) Such regulations shall specify protocols for con9 ducting assessments in individual cases to determine

10 measurable and ecologically significant injury, destruction,

11 or loss. Such regulations shall identify the best available

12 procedures to determine damages for the costs of reason13 able restoration and reasonable assessment, and shall take

14 into consideration the ability of the natural resource to

15 recover naturally and the availability of replacement or al16 ternative resources.

17 ‘‘(3) The regulations shall require that, in the case

18 of a site where more than 1 Federal or State trustee in19 tends to conduct an assessment, the trustees shall des20 ignate a lead trustee at the site. Such designation shall

21 be done not later than 180 days after first notice to the

22 responsible parties that a natural resource damage assess23 ment will be made. Failure by a trustee to participate in

24 the designation of a lead trustee shall preclude the trustee

25 from seeking costs from a responsible party.’’.
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1 (f) SAVINGS CLAUSE.—Section 302 is amended by

2 adding at the end the following new subsection:

3 ‘‘(e) NATURAL RESOURCE DAMAGES.—Nothing in

4 this Act shall affect or modify in any way the rights of

5 any person under other Federal or State law, including

6 common law, to seek restitution for natural resource dam7 ages.’’.

8 TITLE V—STATE ROLE

TITLE V—STATE ROLE

Sec. 501. Authorization of State programs at national priorities list facilities.

Sec. 502. National Priorities List cap.

Sec. 503. State and local reimbursement for response actions.

9 SEC. 501. AUTHORIZATION OF STATE PROGRAMS AT NA10 TIONAL PRIORITIES LIST FACILITIES.

11 (a) STATE PROGRAMS.—Title I (42 U.S.C. 9601 et

12 seq.) is amended by adding after section 130, as added

13 by section 301, the following new section:

14 ‘‘SEC. 131. STATE DELEGATION AT NPL FACILITIES.

15 ‘‘(a) STATE AUTHORITY.—

16 ‘‘(1) ACTIONS FOR WHICH AUTHORITY MAY BE

17 DELEGATED.—The Administrator may, in accord18 ance with this section, delegate authority to a State

19 to take any or all of the following actions at any or

20 all facilities within the State that are listed on the

21 National Priorities List:

22 ‘‘(A) Response actions under section 104.
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1 ‘‘(B) Response actions under section

2 106(a) and enforcement under section 106(b).

3 ‘‘(C) Cost recovery actions under section

4 107.

5 ‘‘(D) Authority under subsections (e) and

6 (h) (other than (h)(2)) of section 120.

7 ‘‘(E) Remedy selections under section 121.

8 ‘‘(F) Settlements under section 122.

9 ‘‘(G) Allocations under section 128.

10 ‘‘(H) Community participation activities

11 under section 117.

12 ‘‘(2) APPLICATION FOR STATE AUTHORITY.—

13 (A) The Governor of a State may submit to the Ad14 ministrator an application for State delegation of

15 one or more of the authorities listed in paragraph

16 (1) with respect to one or more facilities, and may

17 periodically seek amendments to its delegated au18 thority to add or delete facilities or actions for which

19 authority is delegated, as follows:

20 ‘‘(i) STATES WITH RCRA CORRECTIVE AC21 TION AUTHORITY.—In the case of a State that

22 is authorized to administer and enforce correc23 tive action requirements pursuant to section

24 3006 of the Solid Waste Disposal Act, the ap25 plication shall contain the following:
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1 ‘‘(I) A list of facilities on the National

2 Priorities List within the State for which

3 authority is requested.

4 ‘‘(II) A list of the actions for which

5 delegated authority is requested.

6 ‘‘(III) A certification that the State

7 has adequate legal authority to request

8 and accept the authority requested.

9 ‘‘(IV) A certification that the State

10 has the legal authority to enforce the au11 thority requested.

12 ‘‘(V) If the delegation includes facili13 ties at which source, special nuclear, or by14 product materials have been releases or at

15 which there is a threat of such a release,

16 a demonstration that the State has exper17 tise in radionuclides.

18 ‘‘(ii) OTHER STATES.—In the case of a

19 State that is not authorized as described in

20 clause (i) pursuant to section 3006 of such Act,

21 the application shall contain the following:

22 ‘‘(I) A list of facilities on the National

23 Priorities List within the State for which

24 authority is requested.
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1 ‘‘(II) A list of the actions for which

2 authority is requested.

3 ‘‘(III) A certification that the State

4 has adequate legal authority to request

5 and accept the authority requested.

6 ‘‘(IV) A certification that the State

7 has the legal authority and the financial

8 and personnel resources, organization, and

9 expertise (including a demonstration of ex10 pertise in radionuclides for facilities at

11 which source, special nuclear, or byproduct

12 materials have been released or at which

13 there is a threat of such a release) to ad14 minister and enforce the authority re15 quested.

16 ‘‘(3) APPROVAL AND DISAPPROVAL OF APPLICA17 TION.—

18 ‘‘(A) IN GENERAL.—On the last day of the

19 60-day period beginning on the date the Admin20 istrator receives an application made in accord21 ance with paragraph (2), the application is

22 deemed to be approved unless within such 60-

23 day period the Administrator disapproves the

24 application by making one of the following find25 ings:
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1 ‘‘(i) In the case of an application sub2 mitted pursuant to paragraph (2)(A)(i), a

3 finding that the State does not have ade4 quate legal authority to request and accept

5 the authority requested.

6 ‘‘(ii) In the case of an application sub7 mitted pursuant to paragraph (2)(A)(ii), a

8 finding that the State does not have the fi9 nancial and personnel resources, organiza10 tion, or expertise to administer and enforce

11 the authority requested, or does not have

12 adequate legal authority to request and ac13 cept the authority requested.

14 ‘‘(B) TERMS AND CONDITIONS PROHIB15 ITED.—The Administrator may not place any

16 terms or conditions on a delegation made pur17 suant to this section.

18 ‘‘(C) EXPLANATION AND RESUBMITTAL.—

19 If the Administrator disapproves an application

20 by making one of the findings in clause (i) or

21 (ii) of subparagraph (A), the Administrator

22 shall notify the Governor in writing of the dis23 approval and explain the basis for such finding

24 within 10 days after making such finding but in

25 no event later than 60 days after receiving the
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1 application. A notification under this subpara2 graph is final agency action for purposes of ju3 dicial review. A Governor may submit a revised

4 application any time after receiving notice of

5 disapproval.

6 ‘‘(b) STATE RESPONSIBILITIES AND AUTHORITIES.—

7 ‘‘(1) PROCEDURES AND REQUIREMENTS.—

8 When selecting a remedy at a facility for which the

9 State has been delegated to take such action pursu10 ant to subsection (a), a State shall select a remedy

11 pursuant to section 121 of this Act. A State shall

12 determine liability for response costs and damages

13 at such facility pursuant to section 107 of this Act.

14 ‘‘(2) CERTIFICATION OF USE OF FUNDS.—Not

15 later than one year after a State receives funds pur16 suant to subsection (d), and annually thereafter for

17 as long as the State receives such funds, the Gov18 ernor of the State shall submit to the Administrator

19 the following:

20 ‘‘(A) A certification that the State has

21 used the funds in accordance with the require22 ments of this section and this Act.

23 ‘‘(B) Information describing the manner in

24 which the State has used the funds.
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1 ‘‘(C) Such other information about the use

2 of the funds as the Administrator considers

3 necessary.

4 ‘‘(3) DELISTING OF NATIONAL PRIORITIES LIST

5 FACILITIES.—After notice and an opportunity for

6 public comment, a State authorized pursuant to sub7 section (a) to take the action described in subpara8 graph (A), (B), or (E) of paragraph (1) of that sub9 section with respect to a facility may—

10 ‘‘(A) delist the facility, or portion thereof,

11 from the National Priorities List if the State

12 finds that no further action to address the con13 tamination at the facility (or portion thereof) is

14 necessary to adequately protect human health

15 and the environment from realistic and signifi16 cant risks; or

17 ‘‘(B) with the concurrence of the poten18 tially responsible parties, delist the facility, or

19 portion thereof, from the National Priorities

20 List if the State has an enforceable agreement

21 to clean up the facility or if cleanup will pro22 ceed at the facility under the Solid Waste Dis23 posal Act.

24 ‘‘(4) COST RECOVERY.—All response costs paid

25 by the State using funds from State funds recovered
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1 under section 107 by a State for costs incurred at

2 a facility for which the State has delegated authority

3 to take such action pursuant to subsection (a) shall

4 be retained by the State. All response costs paid by

5 funds from the Hazardous Substance Superfund es6 tablished under subchapter A of chapter 98 of the

7 Internal Revenue Code of 1986 recovered under sec8 tion 107 by a State for costs incurred at a facility

9 for which the State has delegated authority to take

10 such action pursuant to subsection (a) shall be de11 posited into such Superfund. Notwithstanding para12 graph (1), the Administrator may take actions under

13 section 107 to recover response costs at such a facil14 ity.

15 ‘‘(c) FEDERAL RESPONSIBILITIES AND AUTHORI16 TIES.—

17 ‘‘(1) REVIEW OF USE OF FUNDS.—The Admin18 istrator shall review the certification submitted by

19 the Governor pursuant to subsection (b)(2) within

20 120 days after its submission. If the Administrator

21 finds that funds were used in a manner that is clear22 ly inconsistent with the provisions of this Act, the

23 Administrator shall notify the Governor in writing

24 within 120 days after receiving the Governor’s cer25 tification. If the Governor fails to demonstrate with-
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1 in 30 days after receiving such notice that the Ad2 ministrator’s finding is in error, or that the misuse

3 or misapplication of funds is being corrected, the

4 Administrator may request reimbursement of such

5 sums as the Administrator has found to be mis6 applied or misused or bring an action in the appro7 priate United States district court to recover the

8 amount of funds used in a manner clearly inconsist9 ent with the provisions of this Act.

10 ‘‘(2) WITHDRAWAL OF DELEGATION.—

11 ‘‘(A) CERTIFIED STATES.—If the Adminis12 trator finds that a State does not meet the re13 quirements for a delegation of authority under

14 subsection (a)(2), or is exercising such author15 ity in a manner clearly inconsistent with the re16 quirements of this Act, the Administrator may

17 withdraw all of the State’s delegated authority

18 after providing notice and an opportunity to

19 correct deficiencies pursuant to subparagraph

20 (B).

21 ‘‘(B) NOTICE AND OPPORTUNITY TO REC22 TIFY.—The Administrator shall notify a State

23 in writing prior to withdrawing any delegated

24 authority approved pursuant to subsection (a).

25 If the State has not addressed the deficiencies
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1 listed in the Administrator’s notification within

2 90 days after receiving the notification, the au3 thority may be withdrawn.

4 ‘‘(3) PROHIBITED ACTIONS.—Except as pro5 vided in subsections (b)(4) and (e), the Adminis6 trator is prohibited from taking any actions under

7 sections 104, 106, 107, 117, 121, 122, and section

8 128 (relating to mandatory allocations at multiparty

9 facilities), and under subsections (e) and (h) (other

10 than subsection (h)(2)) of section 120, at any facil11 ity on the National Priorities List for which author12 ity to take such actions has been delegated to a

13 State under this section.

14 ‘‘(d) FUNDING.—

15 ‘‘(1) IN GENERAL.—The cost to a State of exer16 cising any delegated authorities shall be funded as

17 such costs arise, where such costs may be deter18 mined on a site-specific basis, except as provided in

19 paragraph (5). The Administrator shall publish a

20 list of the activities for which costs may and may

21 not be determined on a site-specific basis.

22 ‘‘(2) FORMULA.—The Administrator may estab23 lish a formula to allocate funds among States for

24 program activities for which costs cannot be deter25 mined on a site-specific basis. In establishing the
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1 formula by which funds may be allocated to a par2 ticular State, the Administrator shall consider the

3 following:

4 ‘‘(A) The cost of administering the dele5 gated authority.

6 ‘‘(B) The number of facilities for which the

7 State has been delegated authority.

8 ‘‘(C) The types of activities for which the

9 State has been delegated authority.

10 ‘‘(D) The number of facilities within the

11 State on the National Priorities List.

12 ‘‘(E) The number of other high priority fa13 cilities within the State.

14 ‘‘(F) The need for development of the

15 State program.

16 ‘‘(G) The need for additional personnel.

17 ‘‘(H) The amount of resources available

18 through State programs for the cleanup of con19 taminated facilities.

20 ‘‘(I) The benefit to human health and the

21 environment of providing the funding.

22 ‘‘(3) USE OF FUNDS.—A State may use funds

23 provided under this section to take any actions or

24 perform any duties necessary to implement its dele25 gated authority.
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1 ‘‘(4) COST SHARE.—A State may not use funds

2 provided under this section unless the State provides

3 assurances that it will pay the amount described in

4 section 104(c)(3). A State may not use funds appro5 priated to carry out the purposes of this section to

6 make such payments.

7 ‘‘(5) REIMBURSEMENT FOR REMOVAL ACTIONS

8 UNDER SECTION 104.—The cost to a State of exer9 cising any delegated removal authority under section

10 104 shall be reimbursed in accordance with section

11 123.

12 ‘‘(e) RELATIONSHIP TO COOPERATIVE AGREE13 MENTS.—Nothing in this section shall affect the authority

14 of the Administrator under section 104(d)(1) of this Act

15 to enter into a cooperative agreement with a State or polit16 ical subdivision or Indian Tribe.’’.

17 (b) STATE COST SHARE.—(1) Section 104(c) (42

18 U.S.C. 9604(c)) is amended by striking paragraph (3) and

19 inserting the following:

20 ‘‘(3)(A) Neither the Administrator, nor a State

21 at a facility for which the State has been delegated

22 authority pursuant to section 131(a) to take reme23 dial action, shall provide any remedial actions pursu24 ant to this section unless the State in which the re25 lease occurs first enters into a contract or coopera-
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1 tive agreement with the Administrator providing as2 surances deemed adequate by the Administrator that

3 the State will pay, in cash or through in-kind con4 tributions, a specified percentage of the costs of the

5 remedial action and operation and maintenance

6 costs. The specified percentage shall be 10 percent

7 except as provided in subparagraph (B).

8 ‘‘(B) Upon receiving a petition from a State,

9 the Director of the Office of Management and Budg10 et (hereinafter the ‘Director’) shall establish a lower

11 State cost share percentage to apply in lieu of the

12 10 percent cost share set forth in subparagraph (A)

13 for the costs of remedial action and operation and

14 maintenance costs in the State, and provide notice

15 and an opportunity for comment. For any petition,

16 the percentage of the cost share shall be uniform for

17 all facilities in the State for which a cost share is

18 required and for which a cost share is established

19 pursuant to such petition. The Director shall set the

20 cost share at the percentage rate at which total an21 ticipated payments by the State under the cost share

22 for all facilities in the State for which a cost share

23 is required most closely approximate the total esti24 mated cost share payments by the State for such fa25 cilities that would have been required under cost
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1 share requirements that were applicable prior to the

2 date of enactment of this subparagraph, adjusted to

3 reflect the extent to which the State’s ability to re4 cover costs under this Act have been reduced by rea5 son of the enactment of the Reform of Superfund

6 Act of 1995. If the cost share computed under this

7 subparagraph is higher than the cost share specified

8 in subparagraph (A), the cost share specified in sub9 paragraph (A) shall apply. The Director may adjust

10 a State’s cost share under this subsection not more

11 frequently than every 3 years.

12 ‘‘(C) In the case of remedial action to be taken

13 on land or water held by an Indian Tribe, held by

14 the United States in trust for Indians, held by a

15 member of an Indian Tribe (if such land or water

16 is subject to a trust restriction on alienation), or

17 otherwise within the borders of an Indian reserva18 tion, the requirements of this paragraph shall not

19 apply.’’.

20 (c) RELATIONSHIP TO OTHER LAWS.—Section

21 114(a) (42 U.S.C. 9614(a)) is amended by striking

22 ‘‘Nothing’’ and inserting the following: ‘‘Except as pro23 vided in paragraphs (1) and (2) of section 131(b), noth24 ing’’.
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1 (d) CONFORMING AMENDMENT.—Section 106(a) is

2 amended by inserting after ‘‘Attorney General of the Unit3 ed States’’ the following: ‘‘(or, in the case of a State dele4 gation under section 131, the appropriate State official)’’.

5 SEC. 502. NATIONAL PRIORITIES LIST CAP.

6 (a) CAP.—Section 105 is amended by adding at the

7 end the following new subsection:

8 ‘‘(h) CAP ON ADDITIONS TO NATIONAL PRIORITIES

9 LIST.—(1) Notwithstanding any other provision of this

10 section, the President may not add any facility to the Na11 tional Priorities List after December 31, 2002.

12 ‘‘(2) After the date of the enactment of the Reform

13 of Superfund Act of 1995 and subject to paragraph (3),

14 the President may add facilities to the National Priorities

15 List only in accordance with the following schedule:

16 ‘‘(A) No more than 30 facilities in 1996.

17 ‘‘(B) No more than 25 facilities in 1997.

18 ‘‘(C) No more than 20 facilities in 1998.

19 ‘‘(D) No more than 20 facilities in 1999.

20 ‘‘(E) No more than 10 facilities in 2000.

21 ‘‘(F) No more than 10 facilities in 2001.

22 ‘‘(G) No more than 10 facilities in 2002.

23 ‘‘(3) The President may add a facility in a State

24 under paragraph (2) only with the concurrence of the

25 State and the affected local government. For purposes of
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1 this paragraph, the term ‘affected local government’

2 means the elected officials of the city, town, township, bor3 ough, county, or parish exercising primary responsibility

4 for the use of land on which the facility is located or pro5 posed to be located.

6 ‘‘(4) In determining which facilities shall be added

7 to the National Priorities List, the President shall place

8 the highest priority on facilities with releases of hazardous

9 substances which result in actual ongoing human exposure

10 at levels resulting in demonstrated adverse health ef11 fects.’’.

12 (b) CROSS REFERENCE.—Subparagraph (B) of sec13 tion 105(a)(8) is amended by inserting after ‘‘shall revise

14 the list’’ the following: ‘‘, subject to subsection (h),’’.

15 SEC. 503. STATE AND LOCAL REIMBURSEMENT FOR RE16 SPONSE ACTIONS.

17 Section 123 is amended to read as follows:

18 ‘‘SEC. 123. REIMBURSEMENT TO STATE AND LOCAL GOV19 ERNMENTS.

20 ‘‘(a) APPLICATION.—Any State or general purpose

21 unit of local government for a political subdivision which

22 is affected by a release or threatened release at any facility

23 may apply to the President for reimbursement under this

24 section.

25 ‘‘(b) REIMBURSEMENT.—
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1 ‘‘(1) EMERGENCY RESPONSE.—The President is

2 authorized to reimburse general purpose units of

3 local government for expenses incurred in carrying

4 out emergency response actions necessary to prevent

5 or mitigate injury to human health or the environ6 ment associated with the release or threatened re7 lease of any hazardous substance or pollutant or

8 contaminant. Such actions may include, where ap9 propriate, security fencing to limit access, cleanup of

10 illicit drug laboratories, response to fires and explo11 sions, and other activities which require immediate

12 response at the State or local level.

13 ‘‘(2) REMOVAL ACTIONS.—The President is au14 thorized to reimburse States for expenses incurred in

15 carrying out removal actions under section 104. No

16 reimbursement may be provided under this para17 graph to any State for expenses incurred before the

18 date of the enactment of the Reform of Superfund

19 Act of 1995.

20 ‘‘(3) STATE OR LOCAL FUNDS NOT SUP21 PLANTED.—Reimbursement under this section shall

22 not supplant State or local funds normally provided

23 for response.

24 ‘‘(c) AMOUNT.—(1) The amount of any reimburse25 ment to any general purpose unit of local government
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1 under subsection (b)(1) may not exceed $25,000 for a sin2 gle response. The reimbursement under this section with

3 respect to a single facility shall be limited to the general

4 purpose units of local government having jurisdiction over

5 the political subdivision in which the facility is located.

6 ‘‘(2) The amount of any reimbursement to a State

7 under subsection (b)(2) may not exceed $50,000 for a sin8 gle response. The reimbursement under this section with

9 respect to a single facility shall be limited to the State

10 in which the facility is located.

11 ‘‘(3) The amounts allowed for the State and general

12 purpose units of local government may not be combined

13 for any single response action.

14 ‘‘(d) PROCEDURE.—Reimbursements authorized pur15 suant to this section shall be in accordance with rules pro16 mulgated by the Administrator within 1 year after the en17 actment of the Reform of Superfund Act of 1995.’’.

18 TITLE VI—FEDERAL FACILITIES

TITLE VI—FEDERAL FACILITIES

Sec. 601. State role at Federal facilities.

Sec. 602. Innovative technologies for remedial action at Federal facilities.

Sec. 603. Contents of certain deeds.

Sec. 604. Transfers of uncontaminated property.

Sec. 605. Federal entities and facilities.

Sec. 606. Factor to be applied in criteria for determining listing of Federal facilities on National Priorities List.

Sec. 607. Notification regarding uncontaminated property at Federal facilities.

Sec. 608. Annual studies of priorities at Federal facilities.

Sec. 609. Judicial removals.
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1 SEC. 601. STATE ROLE AT FEDERAL FACILITIES.

2 Subsection (g) of section 120 is amended to read as

3 follows:

4 ‘‘(g) STATE ROLE AT FEDERAL FACILITIES.—

5 ‘‘(1) ENFORCEMENT AND DISPUTE RESOLU6 TION.—(A) An interagency agreement under this

7 section between a State and any department, agen8 cy, or instrumentality of the United States shall be

9 enforceable by the State or the Federal department,

10 agency, or instrumentality in the United States dis11 trict court for the district in which the facility is lo12 cated. The district court shall have the jurisdiction

13 to enforce compliance with any provision, standard,

14 regulation, condition, requirement, order, or final de15 termination which has become effective under such

16 agreement, and to impose any appropriate civil pen17 alty provided for any violation of the agreement, not

18 to exceed $25,000 per day.

19 ‘‘(B) At a Federal facility in a State to which

20 the President’s authorities under subsection (e)(4)

21 have been transferred pursuant to section 131(a), if

22 the State does not concur in the remedy selection

23 proposed by the Federal department, agency, or in24 strumentality that owns or operates the facility, the

25 parties shall enter into dispute resolution as pro26 vided in the interagency agreement. If there is no
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1 interagency agreement, the State shall, not later

2 than 120 days after the transfer of authorities under

3 section 131(a), enter into an agreement with the

4 head of the department, agency, or instrumentality

5 on a process for resolving disputes regarding remedy

6 selection for the facility. If a dispute is unresolved

7 after using the process under the interagency agree8 ment or dispute resolution agreement, the head of

9 the Federal department, agency, or instrumentality

10 that owns the Federal facility and the Governor of

11 the State shall attempt to resolve such dispute by

12 consensus. If no agreement is reached between the

13 head of the Federal department, agency, or instru14 mentality and the Governor, the State may issue the

15 final determination. In order to compel implementa16 tion of the State’s selected remedy, the State must

17 bring a civil action in the appropriate United States

18 district court. The district court shall have jurisdic19 tion as provided in subparagraph (A) to issue any

20 relief that may be necessary to implement the reme21 dial action, to impose appropriate civil penalties not

22 to exceed $25,000 per day from the date the selected

23 remedy becomes final, and to review any challenges

24 to the State’s final determination consistent with the

25 standards set forth in section 113(j) of this Act.
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1 ‘‘(2) LIMITATION.—Except as necessary to im2 plement the transfer of the Administrator’s authori3 ties to a State pursuant to section 131(a), nothing

4 in this subsection shall be construed as altering,

5 modifying, or impairing in any manner, or authoriz6 ing the unilateral modification of, any terms of any

7 agreement, permit, administrative or judicial order,

8 decree, or interagency agreement existing on the ef9 fective date of the Reform of Superfund Act of

10 1995. Any other modifications or revisions of an

11 interagency agreement entered into under this sec12 tion shall require the consent of all parties to such

13 agreement, and absent such consent the agreement

14 shall remain unchanged.

15 ‘‘(3) EFFECT ON OTHER AUTHORITIES.—Noth16 ing in this subsection shall affect the exercise by a

17 State of any other authorities that may be applicable

18 to Federal facilities in the State.’’.

19 SEC. 602. INNOVATIVE TECHNOLOGIES FOR REMEDIAL AC20 TION AT FEDERAL FACILITIES.

21 (a) IN GENERAL.—Section 311 (42 U.S.C. 9660) is

22 amended by adding at the end the following:

23 ‘‘(h) FEDERAL FACILITIES.—

24 ‘‘(1) DESIGNATION.—The President may des25 ignate a facility that is owned or operated by any de-
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1 partment, agency, or instrumentality of the United

2 States, and that is listed or proposed for listing on

3 the National Priorities List, to facilitate the re4 search, development, and application of innovative

5 technologies for remedial action at the facility.

6 ‘‘(2) USE OF FACILITIES.—

7 ‘‘(A) IN GENERAL.—A facility designated

8 under paragraph (1) shall be made available to

9 Federal departments and agencies, State de10 partments and agencies, and public and private

11 instrumentalities, to carry out activities de12 scribed in paragraph (1).

13 ‘‘(B) COORDINATION.—The Adminis14 trator—

15 ‘‘(i) shall coordinate the use of the fa16 cilities with the departments, agencies, and

17 instrumentalities of the United States; and

18 ‘‘(ii) may approve or deny the use of

19 a particular innovative technology for re20 medial action at any such facility.

21 ‘‘(3) CONSIDERATIONS.—

22 ‘‘(A) EVALUATION OF SCHEDULES AND

23 PENALTIES.—In considering whether to permit

24 the application of a particular innovative tech25 nology for remedial action at a facility des-
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1 ignated under paragraph (1), the Administrator

2 shall evaluate the schedules and penalties appli3 cable to the facility under any agreement or

4 order entered into under section 120.

5 ‘‘(B) AMENDMENT OF AGREEMENT OR

6 ORDER.—If, after an evaluation under subpara7 graph (A), the Administrator determines that

8 there is a need to amend any agreement or

9 order entered into pursuant to section 120, the

10 Administrator shall comply with all provisions

11 of the agreement or order, respectively, relating

12 to the amendment of the agreement or order.’’.

13 (b) REPORT TO CONGRESS.—Section 311(e) (42

14 U.S.C. 9660(e)) is amended—

15 (1) by striking ‘‘At the time’’ and inserting the

16 following:

17 ‘‘(1) IN GENERAL.—At the time’’; and

18 (2) by adding at the end the following:

19 ‘‘(2) ADDITIONAL INFORMATION.—A report

20 under paragraph (1) shall include information on the

21 use of facilities described in subsection (h)(1) for the

22 research, development, and application of innovative

23 technologies for remedial activity, as authorized

24 under subsection (h).’’.
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1 SEC. 603. CONTENTS OF CERTAIN DEEDS.

2 Section 120(h)(3) (42 U.S.C. 9620(h)(3)) is amend3 ed in the matter following subparagraph (C) by inserting

4 after ‘‘the Administrator’’ both places it appears the fol5 lowing: ‘‘or, in the case of real property that is not part

6 of a facility on the National Priorities List, to the Gov7 ernor of the affected State’’.

8 SEC. 604. TRANSFERS OF UNCONTAMINATED PROPERTY.

9 Section 120(h)(4)(A) (42 U.S.C. 9620(h)(4)(A)) is

10 amended in the first sentence by striking ‘‘stored for one

11 year or more, ’’ and by striking the comma after ‘‘re12 leased’’.

13 SEC. 605. FEDERAL ENTITIES AND FACILITIES.

14 Section 120 (42 U.S.C. 9620) is amended as follows:

15 (1) By amending the heading to read as follows:

16 ‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’.

17 (2) By amending paragraph (1) of subsection

18 (a) to read as follows:

19 ‘‘(1)(A) Each department, agency, and instru20 mentality of the executive, legislative, and judicial

21 branches of the United States shall be subject to,

22 and comply with, all Federal, State, interstate and

23 local requirements, both substantive and procedural

24 (including any requirements for permits or report25 ing, or any provisions for injunctive relief and such

26 sanctions as may be imposed by a court to enforce
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1 such relief), regarding response actions related to, or

2 management of, hazardous substances, pollutants, or

3 contaminants in the same manner, and to the same

4 extent, as any nongovernmental entity is subject to

5 such requirements, including enforcement and liabil6 ity under sections 106 and 107 of this title and the

7 payment of reasonable service charges.

8 ‘‘(B) The Federal, State, interstate, and local

9 substantive and procedural requirements referred to

10 in subparagraph (A) include, but are not limited to,

11 all administrative orders and all civil and adminis12 trative penalties and fines, regardless of whether

13 such penalties and fines are punitive or coercive in

14 nature. The United States hereby expressly waives

15 any immunity otherwise applicable to the United

16 States with respect to any such substantive or proce17 dural requirement (including, but not limited to, any

18 injunctive relief, administrative order or civil or ad19 ministrative penalty or fine referred to in the preced20 ing sentence, or reasonable service charge).

21 ‘‘(C) The reasonable service charges referred to

22 in this paragraph include, but are not limited to,

23 fees or charges assessed in connection with the proc24 essing and issuance of permits, renewal of permits,

25 amendments to permits, review of plans, studies,
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1 and other documents, and inspection and monitoring

2 of facilities, as well as any other nondiscriminatory

3 charges that are assessed in connection with a State,

4 interstate, or local response program.

5 ‘‘(D) Neither the United States, nor any agent,

6 employee, or officer thereof, shall be immune or ex7 empt from any process or sanction of any State or

8 Federal court with respect to the enforcement of any

9 injunctive relief.

10 ‘‘(E) No agent, employee, or officer of the

11 United States shall be personally liable for any civil

12 penalty under any Federal or State response law

13 with respect to any act or omission within the scope

14 of their official duties. An agent, employee, or officer

15 of the United States shall be subject to any criminal

16 sanction (including, but not limited to, any fine or

17 imprisonment) under any Federal or State response

18 law, but no department, agency, or instrumentality

19 of the executive, legislative, or judicial branch of the

20 United States shall be subject to any such sanctions.

21 ‘‘(F) The waiver of sovereign immunity pro22 vided in this paragraph shall not apply to the extent

23 a State law would apply any standard or require24 ment to such Federal department, agency, or instru25 mentality in a manner which is more stringent than
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1 such standard or requirement would be applied to

2 any other person.

3 ‘‘(G) Nothing in this section shall be construed

4 to affect the liability of any person or entity other

5 than a department, agency, or instrumentality of the

6 United States under sections 106 and 107 of this

7 Act.

8 ‘‘(H)(i) The Administrator or a State with dele9 gated authority may issue an order under section

10 106 of this Act to any department, agency, or in11 strumentality of the executive, legislative, or judicial

12 branch of the United States. The Administrator or

13 a State with delegated authority shall initiate an ad14 ministrative enforcement action against such a de15 partment, agency, or instrumentality in the same

16 manner and under the same circumstances as action

17 would be initiated against any other person.

18 ‘‘(ii) No administrative order issued to such de19 partment, agency, or instrumentality shall become

20 final until such department, agency, or instrumental21 ity has had the opportunity to confer with the Presi22 dent or a State with delegated authority.

23 ‘‘(I) Each such department, agency, and instru24 mentality shall have the right to contribution protec25 tion set forth in section 113, when such department,
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1 agency, or instrumentality resolves its liability under

2 this Act.’’.

3 (3) By striking paragraph (4) of subsection (a).

4 (4) By inserting ‘‘(other than the indemnifica5 tion requirements of section 119)’’ after ‘‘respon6 sibility’’ in subsection (a)(3).

7 SEC. 606. FACTOR TO BE APPLIED IN CRITERIA FOR DE8 TERMINING LISTING OF FEDERAL FACILI9 TIES ON NATIONAL PRIORITIES LIST.

10 Subsection (d) of section 120 (42 U.S.C. 9620) is

11 amended by inserting after ‘‘persons.’’ the following: ‘‘An

12 appropriate factor as referred to in section 105(a)(8)(A)

13 may include the extent to which the Federal land manag14 ing agency has arranged with the Administrator or the

15 relevant State agency to respond to the release or threat16 ened release pursuant to other legal authority.’’.

17 SEC. 607. NOTIFICATION REGARDING UNCONTAMINATED

18 PROPERTY AT FEDERAL FACILITIES.

19 Subsection (d) of section 120 (42 U.S.C. 9620) is

20 amended by adding at the end the following: ‘‘Upon identi21 fication of parcels of uncontaminated property pursuant

22 to subsection (h)(4), the President may provide notice that

23 the listing does not include the identified clean parcels.’’.
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1 SEC. 608. ANNUAL STUDIES OF PRIORITIES AT FEDERAL

2 FACILITIES.

3 (a) STUDY REQUIREMENT.—The head of each Fed4 eral department, agency, or instrumentality each fiscal

5 year shall conduct a study to determine priorities among

6 environmental management activities, within the funds

7 available for such activities during such fiscal year, at fa8 cilities owned or operated by the department, agency, or

9 instrumentality and on the National Priorities List.

10 (b) USE OF STANDARD METHODOLOGIES.—In con11 ducting the study, the head of each department, agency,

12 or instrumentality shall develop and apply standard meth13 odologies for evaluating and ranking such priorities.

14 (c) MATTERS TO BE CONSIDERED.—In conducting

15 the study, the head of the department, agency, or instru16 mentality shall consider a range of issues, including the

17 following:

18 (1) Health, safety, and environmental risks.

19 (2) Reduction of infrastructure costs and life20 cycle cleanup costs.

21 (3) Economic development concerns.

22 (4) Views of affected citizens.

23 (d) PARTICIPATION.—In conducting the study, the

24 head of the department, agency, or instrumentality shall

25 provide for the participation, at a minimum, of the State

26 in which the facility is located; the Administrator of the
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1 Environmental Protection Agency or a State with author2 ized under section 131; the department, agency, or instru3 mentality being regulated; and any affected citizens or en4 tities.

5 (e) REPORT.—Not later than 90 days after the date

6 of the enactment of the annual appropriation Act provid7 ing funds for a Federal department, agency, or instrumen8 tality, the head of the department, agency, or instrumen9 tality shall submit to Congress a report on the results of

10 the study required by this section.

11 (f) EFFECT OF STUDY ON ENFORCEABLE AGREE12 MENTS.—A study conducted under this section shall in no

13 way impair or diminish the obligation of any department,

14 agency, or instrumentality of the United States to comply

15 with requirements agreed to under section 120 of the

16 Comprehensive Environmental Response, Compensation,

17 and Liability Act of 1980, unless such requirements have

18 been specifically—

19 (1) addressed; or

20 (2) waived;

21 without objection from the State or Federal regulating

22 agency.

23 SEC. 609. JUDICIAL REMOVALS.

24 Section 113(b) is amended by inserting after the first

25 sentence the following: ‘‘Any action initiated in any State
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1 or local court against the United States (or any depart2 ment, agency, instrumentality, officer, or employee of the

3 United States) regarding liability or response actions re4 lated to, or the release, disposal, or management of, haz5 ardous wastes or hazardous substances, may be removed

6 by the United States (or any department, agency, instru7 mentality, officer, or employee of the United States) to

8 the appropriate United States District Court in accord9 ance with section 1446 of title 28, United States Code.’’.

10 TITLE VII—MISCELLANEOUS

TITLE VII—MISCELLANEOUS

Sec. 701. Definitions.

Sec. 702. Response claims procedures.

Sec. 703. Small business ombudsman.

Sec. 704. Consideration of local government cleanup priorities.

Sec. 705. Savings clause.

Sec. 706. Report and oversight requirements.

Sec. 707. Response authorities.

11 SEC. 701. DEFINITIONS.

12 Section 101 (42 U.S.C. 9601) is amended as follows:

13 (1) Paragraph (10)(H) is amended by striking

14 ‘‘subject to’’ and inserting ‘‘in compliance with’’.

15 (2) Paragraph (11) is amended by striking out

16 ‘‘Response Fund established by section 221 of this

17 Act’’ and all that follows through the end of the

18 paragraph and inserting in lieu thereof ‘‘Superfund

19 established by section 9507 of the Internal Revenue

20 Code of 1986.’’.
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1 (3) Paragraph (14) is amended by adding at

2 the end the following: ‘‘Such term does not include

3 any naturally occurring radioactive materials.’’.

4 (4) Paragraph (20) is amended as follows:

5 (A) In subparagraph (A), by inserting ‘‘the

6 United States or’’ after ‘‘similar means to’’.

7 (B) In subparagraph (D)—

8 (i) in the first sentence by inserting

9 ‘‘the United States or’’ after ‘‘does not in10 clude’’;

11 (ii) in the second sentence, by insert12 ing ‘‘any department, agency, or instru13 mentality of the United States or’’ before

14 ‘‘any State’’; and

15 (iii) in the second sentence, by strik16 ing ‘‘a’’ after ‘‘such’’ and inserting ‘‘de17 partment, agency, or instrumentality of the

18 United States or’’.

19 (C) by adding after subparagraph (D) the

20 following new subparagraph:

21 ‘‘(E) The term ‘owner or operator’ shall not in22 clude the United States or any department, agency,

23 or instrumentality of the United States or a con24 servator or receiver appointed by a department,

25 agency, or instrumentality of the United States if
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1 the United States or the conservator or receiver

2 meets both of the following conditions:

3 ‘‘(i) The United States, conservator, or re4 ceiver acquired ownership or control of a vessel

5 or facility (or any right or interest therein)—

6 ‘‘(I) in connection with the exercise of

7 receivership or conservatorship authority

8 or the liquidation or winding up of the af9 fairs of any entity subject to a receivership

10 or conservatorship, including any subsidi11 ary thereof; and

12 ‘‘(II) in connection with the exercise

13 of any seizure or forfeiture authority.

14 ‘‘(ii) The United States, conservator, or re15 ceiver does not participate in the management

16 of the vessel or facility operations that result in

17 a release or threat of release of hazardous sub18 stances and complies with such other require19 ments as the Administrator may set forth by

20 regulation.’’.

21 (5) Paragraph (23) (relating to the terms ‘‘re22 move’’ and ‘‘removal’’) is amended—

23 (A) in the first sentence—

24 (i) by striking ‘‘terms’’ and inserting

25 ‘‘term’’;
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1 (ii) by striking ‘‘necessary’’ the first

2 place it appears and inserting ‘‘nec3 essarily’’; and

4 (iii) by inserting after ‘‘environment,

5 such actions’’ the phrase ‘‘or combination

6 of such actions’’;

7 (B) in the second sentence by striking

8 ‘‘term includes’’ and inserting ‘‘terms include’’;

9 and

10 (C) by adding at the end the following:

11 ‘‘The term ‘remove’ or ‘removal’ is not limited

12 to emergency situations and includes actions to

13 address future or potential exposures.’’.

14 (6) Paragraph (25) (relating to the terms ‘‘re15 spond’’ and ‘‘response’’) is amended—

16 (A) by striking ‘‘terms’’ and inserting

17 ‘‘term’’;

18 (B) by striking the comma after ‘‘remedial

19 action;’’; and

20 (C) by striking ‘‘related thereto’’ and in21 serting ‘‘(including attorneys’ fees and expert

22 witness fees) and oversight activities related

23 thereto when such activities are undertaken by

24 the President, a State or Indian Tribe’’.
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1 (7) Paragraph (29) (relating to the terms ‘‘dis2 posal’’, ‘‘hazardous waste’’, and ‘‘treatment’’) is

3 amended by inserting before the period the follow4 ing: ‘‘, except that the term ‘hazardous substance’

5 shall be substituted for the term ‘hazardous waste’

6 in the definitions of ‘disposal’ and ‘treatment’ ’’.

7 (8) Paragraph (33) (relating to the term ‘‘pol8 lutant or contaminant’’) is amended by striking ‘‘;

9 except that the’’ and inserting ‘‘. The’’ and by add10 ing the following at the end thereof: ‘‘Such term

11 does not include any naturally occurring radioactive

12 materials.’’.

13 (9) The following new paragraphs are added at

14 the end:

15 ‘‘(39) MUNICIPAL SOLID WASTE.—The term

16 ‘municipal solid waste’ means all waste materials

17 generated by households, including single and multi18 family residences, and hotels and motels. The term

19 also includes waste materials generated by commer20 cial, institutional, and industrial sources, to the ex21 tent such wastes (A) are essentially the same as

22 waste normally generated by households, or (B) are

23 collected and disposed of with other municipal solid

24 waste or sewage sludge as part of normal municipal

25 solid waste collection services, and, regardless of
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1 when generated, would be considered conditionally

2 exempt small quantity generator waste under regula3 tion issued pursuant to section 3001(d) of the Solid

4 Waste Disposal Act (42 U.S.C. 6921(d)). Examples

5 of municipal solid waste include food and yard

6 waste, paper, clothing, appliances, consumer product

7 packaging, disposable diapers, office supplies, cos8 metics, glass and metal food containers, elementary

9 or secondary school science laboratory waste, and

10 household hazardous waste. The term does not in11 clude combustion ash generated by resource recovery

12 facilities or municipal incinerators, or waste from

13 manufacturing or processing (including pollution

14 control) operations not essentially the same as waste

15 normally generated by households.

16 ‘‘(40) MUNICIPALITY.—The term ‘municipality’

17 means a political subdivision of a State, including a

18 city, county, village, town, township, borough, par19 ish, school district, sanitation district, water district,

20 or other public entity performing local governmental

21 functions. The term also includes a natural person

22 acting in the capacity of an official, employee, or

23 agent of any entity referred to in the preceding sen24 tence in the performance of governmental functions.
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1 ‘‘(41) QUALIFIED HOUSEHOLD HAZARDOUS

2 WASTE COLLECTION PROGRAM.—The term ‘qualified

3 household hazardous waste collection program’

4 means a program established by an entity of the

5 Federal Government, a State, a municipality, or an

6 Indian tribe that provides, at a minimum, for semi7 annual collection of household hazardous wastes at

8 accessible, well-publicized collection points within the

9 relevant jurisdiction.

10 ‘‘(42) SEWAGE SLUDGE.—The term ‘sewage

11 sludge’ means solid, semisolid, or liquid residue re12 moved during the treatment of municipal waste

13 water, domestic sewage, or other waste water at or

14 by publicly owned or federally owned treatment

15 works.

16 ‘‘(43) SMALL BUSINESS.—The term ‘small busi17 ness’ refers to any business entity that employs no

18 more than 100 individuals and is a ‘small business

19 concern’ as defined under the Small Business Act

20 (15 U.S.C. 631 et seq.).

21 ‘‘(44) SMALL NONPROFIT ORGANIZATION.—The

22 term ‘small nonprofit organization’ means any orga23 nization that does not distribute any part of its in24 come or profit to its members, directors, or officers,

25 employs no more than 100 paid individuals at the
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1 involved chapter, office, or department, and was rec2 ognized as a non-profit organization under section

3 501(c)(3) of the Internal Revenue Code of 1986.

4 ‘‘(45) CONSTRUCTION CONTRACTOR.—The term

5 ‘construction contractor’ means a person who—

6 ‘‘(A) is not—

7 ‘‘(i) taking or required to take any re8 sponse action under this Act or any other

9 Federal or State law at the facility con10 cerned,

11 ‘‘(ii) taking or required to take any

12 corrective action under the Solid Waste

13 Disposal Act (42 U.S.C. 6901 et seq.) at

14 the facility concerned, or

15 ‘‘(iii) otherwise responding to a re16 lease or threatened release of a hazardous

17 substance, pollutant, or contaminant at the

18 facility concerned;

19 ‘‘(B) did not know or have reason to know

20 of the presence of hazardous substances at the

21 facility concerned before beginning construction

22 activities;

23 ‘‘(C) provided all legally required notices

24 with respect to the discovery or release of any

25 hazardous substances at the facility; and
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1 ‘‘(D) exercised due care with respect to the

2 hazardous substances discovered in the course

3 of performing the construction activity, includ4 ing precautions against foreseeable acts of third

5 parties, taking into consideration the character6 istics of such hazardous substance, in light of

7 all relevant facts and circumstances.

8 ‘‘(46) NATURALLY OCCURRING RADIOACTIVE

9 MATERIALS.—The term ‘naturally occurring radio10 active materials’ means materials which are or con11 tain naturally occurring radionuclides and their re12 spective decay products unless such materials are

13 derived from substances processed exclusively for

14 their radionuclide content. Such term does not in15 clude source, special nuclear, or by-product material

16 regulated under the Atomic Energy Act of 1954 (42

17 U.S.C. 2011 and following).’’.

18 SEC. 702. RESPONSE CLAIMS PROCEDURES.

19 Section 112(a) (42 U.S.C. 9612(a)(2)) is amended—

20 (1) in the first sentence, by adding after ‘‘un21 less such claim is’’ the following: ‘‘(1) accompanied

22 by an audit prepared by an independent, certified

23 public accountant, and (2)’’; and

24 (2) by inserting after the first sentence the fol25 lowing: ‘‘The Administrator reserves the right to re-
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1 view such audits to determine that the costs for

2 which the claimant is seeking reimbursement are

3 consistent with section 111 and, where necessary,

4 withhold claims or a portion thereof which are incon5 sistent with section 111(a).’’.

6 SEC. 703. SMALL BUSINESS OMBUDSMAN.

7 The Administrator of the Environmental Protection

8 Agency shall establish a small business Superfund assist9 ance section within the small business ombudsman office

10 at the Environmental Protection Agency. Such section

11 shall carry out the following functions:

12 (1) Act as a clearinghouse of information for

13 small businesses regarding the Comprehensive Envi14 ronmental Response, Compensation, and Liability

15 Act of 1980. Such information shall be comprehen16 sible to a lay person and shall include information

17 regarding the allocation process under section 130 of

18 such Act, requirements and procedures for expedited

19 settlements pursuant to section 122(g) of such Act,

20 de minimis and de micromis status, and ability-to21 pay procedures.

22 (2) Provide general advice and assistance to

23 small businesses as to their questions and problems

24 concerning the allocation and settlement processes,

25 except that such advice and assistance shall not in-
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1 clude any legal advice as to liability or any other

2 legal representation. The ombudsman shall not par3 ticipate in the allocation process.

4 (3) Develop proposals and make recommenda5 tions for changes in policies and activities of the En6 vironmental Protection Agency which would better

7 fulfill the goals of title II of the Reform of

8 Superfund Act of 1995 in ensuring equitable, sim9 plified, and expedited allocations and settlements for

10 small businesses.

11 SEC. 704. CONSIDERATION OF LOCAL GOVERNMENT

12 CLEANUP PRIORITIES.

13 Section 104(c)(2) is amended—

14 (1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and

15 (2) by adding at the end the following new sub16 paragraph:

17 ‘‘(B) In setting priorities for scheduling work and al18 locating oversight resources for a remedial action at a fa19 cility at which a potentially responsible party that is a

20 State or local government proposes to carry out the reme21 dial action (or a portion thereof), the Administrator

22 should give higher priority to such remedial action (or por23 tion thereof) if the State or local government demonstrates

24 that the remedial action (i) will have a public benefit; and

25 (ii) will result in the property on or adjacent to the facility
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1 being returned to productive use. A private potentially re2 sponsible party may request similar consideration, in the

3 Administrator’s discretion.’’.

4 SEC. 705. SAVINGS CLAUSE.

5 Nothing in this Act or any amendment made by this

6 Act shall affect the application of the Atomic Energy Act

7 of 1954 to any facility licensed by the Nuclear Regulatory

8 Commission.

9 SEC. 706. REPORT AND OVERSIGHT REQUIREMENTS.

10 (a) SUBMISSION TO STATE GOVERNORS.—Section

11 301(h)(1) (42 U.S.C. 9651(h)(1)) is amended in the mat12 ter preceding subparagraph (A) by striking ‘‘to Congress

13 of such Agency’’ and inserting ‘‘of such Agency to Con14 gress and the Governor of each State’’.

15 (b) PROGRESS REPORT.—Section 301(h)(1)(A) is

16 amended to read as follows:

17 ‘‘(A) A progress report of accomplishments

18 and expenditures on a State-by-State basis, in19 cluding—

20 ‘‘(i) a statement of the number of

21 completed record of decisions, removal ac22 tions, remedial actions, and enforcement

23 actions; and

24 ‘‘(ii) a statement of—
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1 ‘‘(I) the aggregate amount ex2 pended in each State;

3 ‘‘(II) the amount expended in

4 each State for site investigation and

5 cleanup activities;

6 ‘‘(III) the amount expended in

7 each State for non site-specific costs;

8 and

9 ‘‘(IV) the amount expended for

10 enforcement actions and cost recovery

11 activities.’’.

12 (c) OTHER REPORT CONTENTS.—Section 301(h)(1)

13 is amended—

14 (1) in subparagraph (B) by striking the period

15 at the end and inserting ‘‘and removal or remedial

16 action.’’; and

17 (2) in subparagraph (C) by inserting ‘‘, removal

18 action, and remedial action’’ after ‘‘study’’.

19 (d) RESPONSE TO STATE COMMENTS BY EPA.—Sec20 tion 301(h) is amended by adding at the end the following:

21 ‘‘(4) RESPONSE TO STATE COMMENTS BY

22 EPA.—The Administrator of the Environmental Pro23 tection Agency shall respond in writing to any com24 ments submitted to the Administrator by a State re25 garding reports developed under this subsection.’’.
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1 SEC. 707. RESPONSE AUTHORITIES.

2 (a) DISPOSAL AUTHORITY.—Section 104(j) (42

3 U.S.C. 9604(j)) is amended as follows:

4 (1) In paragraph (1), by striking ‘‘remedial’’ in

5 the first sentence and inserting ‘‘response’’.

6 (2) By amending paragraph (2) to read as fol7 lows:

8 ‘‘(2) DISPOSAL AUTHORITY.—The President is

9 authorized to dispose of any interest in real property

10 acquired for use by the President under this sub11 section by sale, exchange, donation, or otherwise and

12 any such interest in real property shall not be sub13 ject to any of the provisions of section 120 except

14 the notice provisions of section 120(h)(1). Any mon15 eys received by the President pursuant to this para16 graph shall be deposited in the Fund.’’.

17 (3) In paragraph (3) by striking ‘‘estate’’ and

18 inserting ‘‘property’’.

19 TITLE VIII—AMENDMENTS TO

20 OIL POLLUTION ACT OF 1990

TITLE VIII—AMENDMENTS TO OIL POLLUTION ACT OF 1990

Sec. 801. Ensuring cost-effective restoration, rehabilitation, replacement, or acquisition of natural resources.

Sec. 802. Measure of natural resource damages.

Sec. 803. Damage assessment regulations.

Sec. 804. Definitions.
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1 SEC. 801. ENSURING COST-EFFECTIVE RESTORATION, RE2 HABILITATION, REPLACEMENT, OR ACQUISI3 TION OF NATURAL RESOURCES.

4 Section 1006(c) of the Oil Pollution Act of 1990 (33

5 U.S.C. 2706(c)) is amended—

6 (1) by striking ‘‘a plan for the restoration,’’

7 each place it appears and inserting ‘‘the most cost8 effective, cost-reasonable, and timely plan for the

9 restoration,’’; and

10 (2) by adding at the end the following new

11 paragraph:

12 ‘‘(6) NATURAL RECOVERY.—In developing plans

13 under this subsection, Federal, State, local, tribal,

14 and foreign trustees designated under subsection (b)

15 shall consider natural recovery to be a means of nat16 ural resource restoration.’’.

17 SEC. 802. MEASURE OF NATURAL RESOURCE DAMAGES.

18 Section 1006(d) of the Oil Pollution Act of 1990 (33

19 U.S.C. 2706(d)) is amended—

20 (1) by amending paragraph (1)(A) to read as

21 follows:

22 ‘‘(A) the cost of measures to restore, reha23 bilitate, replace, or acquire the equivalent of,

24 natural resources that are damaged as a direct

25 result of a discharge of oil, that are reasonable

26 and necessary to re-establish—
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1 ‘‘(i) the measurable and ecologically

2 significant functions that such natural re3 sources would have performed in the ab4 sence of the discharge; and

5 ‘‘(ii) the uses of the natural resources

6 by the public that would have occurred in

7 the absence of the discharge;’’;

8 (2) in paragraph (1)(B) by inserting before the

9 semicolon the following: ‘‘, other than any

10 dimunition in nonuse value’’;

11 (3) in paragraph (3) by inserting ‘‘or any other

12 law’’ after ‘‘under this Act’’.

13 SEC. 803. DAMAGE ASSESSMENT REGULATIONS.

14 Section 1006(e) of the Oil Pollution Act of 1990 (33

15 U.S.C. 2706(e)) is amended to read as follows:

16 ‘‘(e) DAMAGE ASSESSMENT REGULATIONS.—

17 ‘‘(1) IN GENERAL.—Not later than August 18,

18 1998, the President shall issue regulations imple19 menting solely this section and section

20 1002(b)(2)(A), that require that any assessments of

21 natural resource damages for purposes of section

22 1002(b)(2)(A) shall be performed—

23 ‘‘(A) at the location of the natural re24 sources concerned; and
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1 ‘‘(B) with respect to the specific discharge

2 of oil giving rise to the damages.

3 ‘‘(2) CONTENT, GENERALLY.—(A) The regula4 tions under this subsection shall—

5 ‘‘(i) enumerate cost-effective and generally

6 accepted scientific and technical methods and

7 protocols to ensure the validity and reliability of

8 natural resource damage assessments; and

9 ‘‘(ii) require that natural resource damage

10 assessments conducted for purposes of this Act

11 shall be performed in accordance with the regu12 lations.

13 ‘‘(B) Notwithstanding subparagraph (A)(ii),

14 other methods for assessing natural resource dam15 ages may be used if such methods will yield a more

16 cost-effective and cost-reasonable plan for the res17 toration of natural resources damaged by a particu18 lar discharge of oil. The party proposing use of such

19 other methods shall in all instances have the burden

20 of establishing that such methods will yield a more

21 cost-effective and cost-reasonable plan for restora22 tion than assessments performed in accordance with

23 the regulations.

24 ‘‘(3) DESIGNATION OF LEAD TRUSTEE.—The

25 regulations under this subsection shall require that,
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1 in the case of a site where more than 1 Federal or

2 State trustee intends to conduct an assessment, the

3 trustees shall designate a lead decisionmaking trust4 ee at the site. Such designation shall be done not

5 later than 180 days after first notice to the respon6 sible parties that a natural resource damage assess7 ment will be made. Failure by a trustee to partici8 pate in the designation of a lead trustee shall pre9 clude the trustee from seeking costs from a respon10 sible party.’’.

11 SEC. 804. DEFINITIONS.

12 Section 1006 of the Oil Pollution Act of 1990 (33

13 U.S.C. 2706) is amended by adding at the end the follow14 ing new subsection:

15 ‘‘(h) DEFINITIONS.—For purposes of this section, the

16 following definitions apply:

17 ‘‘(1) COST-EFFECTIVE.—The term ‘cost-effec18 tive’ means the least costly of two or more restora19 tion alternatives or lost use replacement or acquisi20 tion alternatives which provide the same or a similar

21 level of services to the public.

22 ‘‘(2) COST-REASONABLE.—The term ‘cost-rea23 sonable’ means that the costs of a restoration alter24 native or the costs of a lost use replacement or ac25 quisition alternative do not exceed the value of the
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1 services that will be provided to the public by the se2 lected alternative. Cost-reasonableness shall be based

3 upon a determination of the incremental costs and

4 the incremental benefits of alternatives for reestab5 lishing various degrees of services up to baseline.

6 ‘‘(3) TIMELY.—The term ‘timely’ means the

7 shortest period of time necessary to meet restoration

8 requirements that takes into account both cost-effec9 tive and cost-reasonable criteria.’’.

10 TITLE IX—REMEDIATION WASTE

11 MANAGEMENT

Sec. 901. Remediation waste.

Sec. 902. Underground storage tank remediation.

Sec. 903. Limitation of liability.

12 SEC. 901. REMEDIATION WASTE.

13 The Solid Waste Disposal Act (42 U.S.C. 6901 et

14 seq.) is amended by adding at the end the following new

15 subtitle:

16 ‘‘Subtitle K—Remediation waste

17 management

18 ‘‘PART 1—GENERAL PROVISIONS

19 ‘‘SEC. 12001. PURPOSES AND OBJECTIVES.

20 ‘‘The purposes and objectives of this subtitle are to—

21 ‘‘(1) significantly increase the environmental

22 protectiveness, cost effectiveness, and pace of re23 sponse activities at contaminated sites by promoting
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1 and encouraging the development and expansion of

2 State-lead remediation programs; and

3 ‘‘(2) benefit the public health, welfare, and the

4 environment by expediting cleanup of active indus5 trial facilities and returning contaminated sites to

6 economically productive or other beneficial uses.

7 ‘‘SEC. 12002. DEFINITIONS.

8 ‘‘(a) IN GENERAL.—For the purposes of this subtitle:

9 ‘‘(1) The term ‘remediation wastes’ means any

10 solid waste or any media (including ground water,

11 surface water, soils and sediments) that is actively

12 managed during implementation of a remedial action

13 plan which—

14 ‘‘(A) is a waste listed under section

15 3001(b) of this Act or is derived from a waste

16 listed under such section 3001(b);

17 ‘‘(B) exhibits a characteristic of hazardous

18 waste as defined by the Administrator under

19 section 3001(b) of this Act; or

20 ‘‘(C) contains or is mixed with waste listed

21 under section 3001(b) of this Act.

22 ‘‘(2) The term ‘remedial action plan’ means a

23 document, or portion of a document, including any

24 order, permit, or agreement, that is entered into

25 with, or subject to the approval and oversight of, the
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1 Administrator or a State with remediation waste

2 management programs authorized under this subtitle

3 which describes—

4 ‘‘(A) the remediation wastes being man5 aged;

6 ‘‘(B) the manner in which the remediation

7 wastes will be managed; and

8 ‘‘(C) the schedule for implementation.

9 ‘‘(b) SAVINGS PROVISION.—Nothing in this title shall

10 preclude a State or the Administrator from including or

11 addressing wastes or constituents.

12 ‘‘SEC. 12003. REQUIREMENTS NOT APPLICABLE TO REMEDI13 ATION WASTE.

14 ‘‘Upon enactment of this subtitle, remediation wastes

15 managed pursuant to an order, permit, or enforceable

16 agreement, or other remedial action plan issued by, en17 tered into with, or approved by, the Administrator or a

18 State shall not be subject to any of the following provisions

19 of subtitle C of this Act:

20 ‘‘(A) Any prohibitions under subsections (d),

21 (e), (f) or (g) of section 3004.

22 ‘‘(B) Any treatment standard promulgated

23 under subsection (m) of section 3004.
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1 ‘‘(C) Any minimum technological requirements

2 regarding land-based solid waste management units

3 promulgated under section 3004(o).

4 ‘‘(D) Any permit requirement for the treat5 ment, storage, or disposal of remediation wastes

6 where such activity is conducted entirely onsite.

7 ‘‘(E) Any requirement imposed pursuant to sec8 tion 3020.

9 The provisions of this section shall not be construed to

10 preclude the Administrator or a State from imposing any

11 treatment, design, or other requirements for remediation

12 wastes pursuant to other provisions of law.

13 ‘‘SEC. 12004. REMEDY SELECTION CRITERIA FOR CERTAIN

14 WASTE UNDER SUBTITLE C.

15 ‘‘All remedies required by this Act under sections

16 3004(u), 3004(v), or 3008(h) shall be as necessary to pro17 tect human health and the environment from realistic

18 risks in a cost-effective and cost-reasonable manner. No

19 preference or bias shall apply to any specific method of

20 remediation. In selecting such final remedies, the following

21 factors shall be balanced and the final remedy shall be

22 based upon the current use and reasonably anticipated fu23 ture uses of land, water and other resources at the reme24 dial action site:
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1 ‘‘(1) The effectiveness of the remedy, including

2 its implementability and technical practicability,

3 ability to reduce risk, and ability to prevent long4 term cost escalation.

5 ‘‘(2) The reliability of the remedy over the short

6 and long term.

7 ‘‘(3) Risks to the affected community, to those

8 engaged in the cleanup effort, and to the environ9 ment arising from offsite transportation and subse10 quent management of the hazardous wastes involved

11 and short-term risks posed by the implementation of

12 the remedy.

13 ‘‘(4) Where relevant, the acceptability of the

14 remedy to the affected community, as represented by

15 the elected officials of the affected local government.

16 ‘‘(5) The reasonableness of the costs of the

17 remedy in relation to other significant remedial op18 tions.

19 In determining reasonably anticipated future uses of re20 sources, the current uses of such resources shall be consid21 ered to be the reasonably anticipated future uses unless

22 the Administrator or State, as the case may be, deter23 mines, based upon the administrative record, that there

24 is a substantial probability of different future uses.
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1 ‘‘PART 2—STATE PROGRAMS

2 ‘‘SEC. 12011. CERTIFICATION OF STATE PROGRAMS FOR

3 STATES WITH AUTHORIZED HAZARDOUS

4 WASTE PROGRAMS.

5 ‘‘(a) CERTIFICATION.—At any time after the enact6 ment of this subtitle, a State that has a hazardous waste

7 program authorized under section 3006(b) of this Act may

8 submit to the Administrator a certification, supported by

9 such documentation as the State considers to be appro10 priate, demonstrating that the State has a State program

11 for the management of remediation wastes under this part

12 which includes each of the following:

13 ‘‘(1) Statutory and regulatory authority to con14 trol the management of remediation wastes from

15 generation to disposal in a manner that protects

16 human health and the environment from realistic

17 and significant risks.

18 ‘‘(2) Resources in place to administer and en19 force those authorities.

20 ‘‘(3) Procedures to ensure public notice and op21 portunity for comment on remedial action plans sub22 mitted to the State.

23 ‘‘(4) Procedures to ensure that where remedi24 ation wastes are moved to a State (‘importing

25 State’) other than the State in which the remedi-
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1 ation wastes are generated (‘exporting State’), the

2 exporting State will notify the importing State.

3 ‘‘(b) INTERIM AUTHORIZATION.—Beginning 60 days

4 after submission of a certification under subsection (a),

5 the State program that is the subject of such certification

6 shall be treated as a certified State program under this

7 subtitle until the Administrator issues a determination

8 under subsection (c).

9 ‘‘(c) DETERMINATION.—

10 ‘‘(1) IN GENERAL.—Not later than 18 months

11 after the date on which a State submits to the Ad12 ministrator a certification under subsection (a), after

13 public notice and opportunity for comment, the Ad14 ministrator shall issue to the State and publish in

15 the Federal Register a determination that—

16 ‘‘(A) the certification meets all of the cri17 teria in subsection (a), and the State program

18 is finally certified under this subtitle; or

19 ‘‘(B) the certification fails to meet one or

20 more of the criteria stated in subsection (a),

21 stating with particularity the elements of the

22 State program that are considered to be defi23 cient, and that the deficiency would likely result

24 in a State remediation waste management pro25 gram that does not protect human health and
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1 the environment from realistic and significant

2 risks.

3 ‘‘(2) DEFAULT.—Except as provided in section

4 12013, if the Administrator does not issue a deter5 mination under paragraph (1) within 18 months

6 after the date on which a State submits to the Ad7 ministrator a certification under subsection (a), the

8 certification shall be considered to meet all of the

9 criteria stated in subsection (a), and the State pro10 gram shall be treated as finally certified under this

11 subtitle.

12 ‘‘(d) EFFECT OF CERTIFICATION.—Upon the certifi13 cation of a State program for the management of remedi14 ation waste, the provisions of subtitle C of this Act and

15 section 6(e) of the Toxic Substances Control Act shall not

16 apply to the generation, transportation, treatment, storage

17 or disposal or other management of such waste and such

18 waste shall not be considered hazardous waste for pur19 poses of this Act or toxic waste for the purposes of section

20 6(e) of the Toxic Substances Control Act within the State

21 with the certification.

22 ‘‘SEC. 12012. STATES WITHOUT AUTHORIZED HAZARDOUS

23 WASTE PROGRAMS.

24 ‘‘(a) CERTIFICATION.—At any time after the enact25 ment of this part, a State that does not have a hazardous
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1 waste program authorized under section 3006(b) of this

2 Act may submit to the Administrator a certification, sup3 ported by such documentation that the State considers to

4 be appropriate, demonstrating that the State has a State

5 program for the management of remediation wastes which

6 includes each of the following:

7 ‘‘(1) Statutory and regulatory authority to con8 trol the management of remediation wastes from

9 generation to disposal in a manner that protects

10 human health and the environment from realistic

11 and significant risks.

12 ‘‘(2) Resources in place to administer and en13 force those authorities.

14 ‘‘(3) Procedures to ensure public notice and op15 portunity for comment on remedial action plans sub16 mitted to the State.

17 ‘‘(b) INTERIM AUTHORIZATION.—Beginning one year

18 after submission of a certification under subparagraph

19 (A), the State program that is the subject of such certifi20 cation shall be treated as a certified State program under

21 this subtitle until the Administrator issues a determina22 tion under subsection (c).

23 ‘‘(c) DETERMINATION.—

24 ‘‘(1) IN GENERAL.—Not later than 2 years

25 after the date on which a State submits to the Ad-
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1 ministrator a certification under subsection (a), after

2 public notice and opportunity for comment, the Ad3 ministrator shall issue to the State and publish in

4 the Federal Register a determination that—

5 ‘‘(A) the certification meets all of the cri6 teria in subsection (a), and the State program

7 is finally certified under this subtitle;

8 ‘‘(B) the certification fails to meet one or

9 more of the criteria stated in subsection (a),

10 stating with particularity the elements of the

11 State program that are considered to be defi12 cient.

13 ‘‘(2) DEFAULT.—Except as provided in section

14 12013, if the Administrator does not issue a deter15 mination under paragraph (1) within 2 years after

16 the date on which a State submits to the Adminis17 trator a certification under subsection (a), the cer18 tification shall be considered to meet all of the cri19 teria stated in subsection (a), and the State program

20 that is the subject of such certification shall be

21 treated as a certified State program under this sub22 title.
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1 ‘‘SEC. 12013. WITHDRAWAL OR DENIAL OF AUTHORIZATION.

2 ‘‘(a) EPA DETERMINATION.—Whenever the Admin3 istrator determines after public hearing and opportunity

4 for public notice and comment that—

5 ‘‘(1) a State is not administering and enforcing

6 a certified program in accordance with this part;

7 ‘‘(2) a State is not administering a certified

8 State program in a manner that protects human

9 health and the environment from realistic and sig10 nificant risks in a manner substantially equivalent to

11 the guidelines under section 12011; or

12 ‘‘(3) a State is not, where appropriate, admin13 istering a certified State program in a manner that

14 is substantially equivalent to the remedy selection

15 criteria set forth in section 12004,

16 the Administrator shall so notify the State, and if appro17 priate corrective action is not taken within a reasonable

18 time, not to exceed 90 days, the Administrator shall with19 draw certification of such program and establish a Federal

20 program pursuant to part 3 of this subtitle. The Adminis21 trator shall not withdraw certification of any such pro22 gram unless the Administrator shall first have notified the

23 State, and made public, in writing, the reasons for such

24 withdrawal.

25 ‘‘(b) DUTIES OF ADMINISTRATOR AFTER DENIAL OR

26 WITHDRAWAL OF CERTIFICATION.—If the Administrator
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1 denies final authorization of a State program or subse2 quently withdraws final authorization for a State remedi3 ation waste management program under this part, the Ad4 ministrator shall ensure completion of any ongoing reme5 dial action plan and establish a Federal remediation waste

6 management program in such State pursuant to part 3.

7 ‘‘SEC. 12014. ENFORCEMENT.

8 ‘‘Remedial actions plans that are adopted by a State

9 for remediation waste, other than remedial action plans

10 implementing section 3008(h), 3004(v) or 3004(u), shall

11 not be enforceable under section 3008 or 7002 of this Act

12 or section 6(e) or 7 of the Toxic Substances Control Act.

13 ‘‘PART 3—EPA REMEDIATION WASTE PROGRAMS

14 ‘‘SEC. 12021. ESTABLISHMENT OF EPA PROGRAM IN STATES

15 WITHOUT CERTIFIED PROGRAMS.

16 ‘‘(a) EPA RULES.—Not later than 24 months after

17 enactment of this subtitle, the Administrator shall, in con18 sultation with Federal and State authorities and after no19 tice and opportunity for comment, promulgate regulations

20 for management by the Administrator under this part of

21 remediation wastes in any State which does not have a

22 program certified under part 2 of this title. Such regula23 tions shall protect human health and the environment

24 from realistic risks in a cost-effective and cost-reasonable

25 manner and shall—
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1 ‘‘(1) maintain flexibility in decisionmaking re2 garding cost-effective remedial strategies; and

3 ‘‘(2) minimize disruption of existing, effective

4 State programs.

5 ‘‘(b) EPA PROGRAMS.—After the effective date of the

6 regulations under subsection (a), and after notice and op7 portunity for public comment, including not less than 60

8 days notice to the State,the Administrator shall commence

9 implementing such regulations in any State without a re10 mediation waste management program certified under

11 part 2 of this subtitle. Upon the commencement of such

12 implementation in any State, the provisions of subtitle C

13 of this Act shall not apply to the generation, transpor14 tation, treatment, storage or disposal or other manage15 ment of remediation wastes in such State and such waste

16 shall not be considered hazardous waste for purposes of

17 this Act.

18 ‘‘SEC. 12022. INSPECTIONS.

19 ‘‘(a) ACCESS ENTRY.—For purposes of developing or

20 assisting in the development of any regulation or enforcing

21 the provisions of this part, any person who generates,

22 stores, treats, transports, disposes of, or otherwise handles

23 or has handled remediation wastes shall, upon request of

24 any officer, employee or representative of the Environ25 mental Protection Agency, duly designated by the Admin-
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1 istrator, furnish information relating to remediation

2 wastes and permit such person at all reasonable times to

3 have access to, and to copy all records relating to such

4 remediation waste. For the purposes of developing or as5 sisting in the development of any regulation or enforcing

6 the provisions of this part, such officers, employees or rep7 resentatives are authorized—

8 ‘‘(1) to enter at reasonable times any establish9 ment or other place where remediation wastes are or

10 have been generated, stored, treated, disposed of, or

11 transported from; and

12 ‘‘(2) to inspect and obtain samples from any

13 person of any such remediation wastes and samples

14 of any containers or labelling for such wastes.

15 Each such inspection shall be commenced and completed

16 with reasonable promptness. If the officer, employee or

17 representative obtains any samples, prior to leaving the

18 premises, he shall give to the owner, operator, or agent

19 in charge a receipt describing the sample obtained and if

20 requested a portion of each such sample equal in volume

21 or weight to the portion retained. If any analysis is made

22 of such samples, a copy of the results of such analysis

23 shall be furnished promptly to the owner, operator, or

24 agent in charge.
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1 ‘‘(b) AVAILABILITY TO THE PUBLIC.—(1) Any

2 records, reports, or information (including records, re3 ports, or information obtained by representatives of the

4 Environmental Protection Agency) obtained from any per5 son under this subtitle shall be available to the public, ex6 cept that upon a showing satisfactory to the Administrator

7 by any person that records, reports, or information (in8 cluding records, reports, or information obtained by rep9 resentatives of the Environmental Protection Agency), or

10 particular part thereof, to which the Administrator or any

11 officer, employee or representative thereof has access

12 under this section if made public, would divulge informa13 tion (including records, reports, or information obtained

14 by representatives of the Environmental Protection Agen15 cy) entitled to protection under section 1905 of title 18

16 of the United States Code, such information or particular

17 portion thereof shall be considered confidential in accord18 ance with the purposes of that section and not available

19 to the public, except that such record, report, document,

20 or information may be disclosed to other officers, employ21 ees, or authorized representatives of the United States

22 concerned with carrying out this Act, or when relevant in

23 any proceeding under this Act.

24 ‘‘(2) Any person not subject to the provisions of sec25 tion 1905 of title 18 of the United States Code who know-
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1 ingly and willfully divulges or discloses any information

2 (including records, reports, or information obtained by

3 representatives of the Environmental Protection Agency)

4 entitled to protection under this subsection shall, upon

5 conviction, be subject to a fine of not more than $5,000

6 or to imprisonment not to exceed one year, or both.

7 ‘‘(3) In submitting data under this part, a person re8 quired to provide such data may—

9 ‘‘(A) designate the data which such person be10 lieves is entitled to protection under this paragraph,

11 and

12 ‘‘(B) submit such designated data separately

13 from other data submitted under this part.

14 A designation under this paragraph shall be made in writ15 ing and in such manner as the Administrator may pre16 scribe.

17 ‘‘(4) Notwithstanding any limitation contained in this

18 section or any other provision of law, all information (in19 cluding records, reports, or information obtained by rep20 resentatives of the Environmental Protection Agency) re21 ported to, or otherwise obtained by, the Administrator (or

22 any representative of the Administrator) under this Act

23 shall be made available, upon written request of any duly

24 authorized committee of the Congress, to such committee
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1 (including records, reports, or information obtained by

2 representatives of the Environmental Protection Agency.

3 ‘‘SEC. 12023. ENFORCEMENT.

4 ‘‘(a) COMPLIANCE ORDERS.—(1) Except as provided

5 in paragraph (2), whenever on the basis of any informa6 tion the Administrator determines that any person has

7 violated or is in violation of any requirement of this part,

8 the Administrator may issue an order assessing a civil

9 penalty for any past or current violation, requiring compli10 ance immediately or within a specified time period, or

11 both, or the Administrator may commence a civil action

12 in the United States district court in the district in which

13 the violation occurred for appropriate relief, including a

14 temporary or permanent injunction.

15 ‘‘(2) Any order issued pursuant to this subsection

16 may include a suspension or revocation of any permit is17 sued by the Administrator or a State under this part and

18 shall state with reasonable specificity the nature of the vio19 lation. Any penalty assessed in the order shall not exceed

20 $25,000 per day of noncompliance for each violation of

21 a requirement of this part. In assessing such a penalty,

22 the Administrator shall take into account the seriousness

23 of the violation and any good faith efforts to comply with

24 applicable requirements.
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1 ‘‘(b) PUBLIC HEARING.—Any order issued under this

2 section shall become final unless, no later than thirty days

3 after the order is served, the person or persons named

4 therein request a public hearing. Upon such request the

5 Administrator shall promptly conduct a public hearing. In

6 connection with any proceeding under this section the Ad7 ministrator may issue subpoenas for the attendance and

8 testimony of witnesses and the production of relevant pa9 pers, books, and documents, and may promulgate rules for

10 discovery procedures.

11 ‘‘(c) VIOLATION OF COMPLIANCE ORDERS.—If a vio12 lator fails to take corrective action within the time speci13 fied in a compliance order, the Administrator may assess

14 a civil penalty of not more than $25,000 for each day of

15 continued noncompliance with the order and the Adminis16 trator may suspend or revoke any remedial action plan

17 issued to the violator.

18 ‘‘(d) CRIMINAL PENALTIES.—Any person who—

19 ‘‘(1) knowingly transports or causes to be

20 transported or knowingly treats, stores, or disposes

21 of any remediation waste in knowing violation of any

22 material condition or requirement of any applicable

23 regulation under this part;

24 ‘‘(2) knowingly omits material information or

25 makes any false statement or representation in any
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1 document filed, maintained, or used for purposes of

2 compliance with regulations promulgated by the Ad3 ministrator under this part; or

4 ‘‘(3) knowingly handles any remediation waste

5 under this part (whether such activity took place be6 fore or takes place after the date of the enactment

7 of this paragraph) and who knowingly destroys, al8 ters, conceals, or fails to file any record, application,

9 manifest, report, or other document required to be

10 maintained or filed for purposes of compliance with

11 regulations promulgated by the Administrator under

12 this part;

13 shall, upon conviction, be subject to a fine of not more

14 than $50,000 for each day of violation, or imprisonment

15 not to exceed two years (five years in the case of a viola16 tion of paragraph (1) or (2)), or both. If the conviction

17 is for a violation committed after a first conviction of such

18 person under this paragraph, the maximum punishment

19 under the respective paragraph shall be doubled with re20 spect to both fine and imprisonment.

21 ‘‘(e) KNOWING ENDANGERMENT.—Any person who

22 knowingly handles and remediation wastes in violation of

23 paragraph (1), (2), or (3) of subsection (d) of this section

24 who knows at that time that he thereby places another

25 person in imminent danger of death or serious bodily in-
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1 jury, shall, upon conviction, be subject to a fine of not

2 more than $250,000 or imprisonment for not more than

3 fifteen years, or both. A defendant that is an organization

4 shall, upon conviction of violating this subsection, be sub5 ject to a fine of not more than $1,000,000.

6 ‘‘(f) SPECIAL RULES.—For the purposes of sub7 section (e)—

8 ‘‘(1) A person’s state of mind is knowing with

9 respect to—

10 ‘‘(A) his conduct, if he is aware of the na11 ture of his conduct;

12 ‘‘(B) an existing circumstance, if he is

13 aware or believes that the circumstance exists;

14 or

15 ‘‘(C) a result of his conduct, if he is aware

16 or believes that his conduct is substantially cer17 tain to cause danger of death or serious bodily

18 injury.

19 ‘‘(2) In determining whether a defendant who is

20 a natural person knew that his conduct placed an21 other person in imminent danger of death or serious

22 bodily injury—

23 ‘‘(A) the person is responsible only for ac24 tual awareness or actual belief that he pos25 sessed; and
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1 ‘‘(B) knowledge possessed by a person

2 other than the defendant but not by the defend3 ant himself may not be attributed to the de4 fendant:

5 Provided, That in proving the defendant’s possession

6 of actual knowledge, circumstantial evidence may be

7 used, including evidence that the defendant took af8 firmative steps to shield himself from relevant infor9 mation.

10 ‘‘(3) It is an affirmative defense to a prosecu11 tion that the conduct charged was consented to by

12 the person endangered and that the danger and con13 duct charged were reasonably foreseeable hazards

14 of—

15 ‘‘(A) an occupation, a business, or a pro16 fession; or

17 ‘‘(B) medical treatment or medical or sci18 entific experimentation conducted by profes19 sionally approved methods and such other per20 son had been made aware of the risks involved

21 prior to giving consent.

22 The defendant may establish an affirmative defense

23 under this subsection by a preponderance of the evi24 dence.
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1 ‘‘(4) All general defenses, affirmative defenses,

2 and bars to prosecution that may apply with respect

3 to other Federal criminal offenses may apply under

4 subsection (e) and shall be determined by the courts

5 of the United States according to the principles of

6 common law as they may be interpreted in the light

7 of reason and experience. Concepts of justification

8 and excuse applicable under this section may be de9 veloped in the light of reason and experience.

10 ‘‘(5) The term ‘organization’ means a legal en11 tity, other than a government, established or orga12 nized for any purpose, and such term includes a cor13 poration, company, association, firm, partnership,

14 joint stock company, foundation, institution, trust,

15 society, union, or any other association of persons.

16 ‘‘(6) The term ‘serious bodily injury’ means—

17 ‘‘(A) bodily injury which involves a sub18 stantial risk of death;

19 ‘‘(B) unconsciousness;

20 ‘‘(C) extreme physical pain;

21 ‘‘(D) protracted and obvious disfigurement;

22 or

23 ‘‘(E) protracted loss or impairment of the

24 function of a bodily member, organ, or mental

25 faculty.
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1 ‘‘(g) CIVIL PENALTY.—Any person who violates any

2 requirement of this part shall be liable to the United

3 States for a civil penalty in an amount not to exceed

4 $25,000 for each such violation. Each day of such viola5 tion shall, for purposes of this subsection, constitute a sep6 arate violation.

7 ‘‘SEC. 12024. RETENTION OF STATE AUTHORITY.

8 ‘‘Upon the effective date of regulations under this

9 part, no State or political subdivision may impose any re10 quirements less stringent than those authorized under this

11 part respecting the same matter as governed by such re12 quirements or regulations, except that if application of a

13 requirement or regulation with respect to any matter

14 under this part is postponed or enjoined by the action of

15 any court, no State or political subdivision shall be prohib16 ited from acting with respect to the same aspect of such

17 matter until such time as such requirement or regulation

18 takes effect. Nothing in this part shall be construed to

19 prohibit any State or political subdivision thereof from im20 posing any requirements which are more stringent than

21 those imposed by such regulations. This section shall not

22 apply in any State upon the certification of a State pro23 gram for that State under part 2. Nothing in this part

24 shall prevent a State from specifying or incorporating by
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1 reference regulations promulgated under subtitle C of this

2 Act as part of its State law.’’.

3 SEC. 902. UNDERGROUND STORAGE TANK REMEDIATION.

4 Section 9003 of the Solid Waste Disposal Act (42

5 U.S.C. 6991b) is amended by adding at the end the follow6 ing:

7 ‘‘(i) REMEDIATION WASTES.—Notwithstanding any

8 other provision of this Act, petroleum-contaminated media

9 and debris that fail the toxicity characteristic, issued by

10 the Administrator under section 3001 of this Act (42

11 U.S.C. 6921), due to organic constituents shall not be haz12 ardous wastes for the purposes of subtitle C of this Act

13 when managed pursuant to this section.’’.

14 SEC. 903. LIMITATION OF LIABILITY UNDER SOLID WASTE

15 DISPOSAL ACT.

16 The Solid Waste Disposal Act (42 U.S.C. 6901 et

17 seq.) is amended by adding at the end of section

18 9003(h)(9) the following sentence: ‘‘This definition shall

19 be construed to be parallel and comparable to that speci20 fied in section 107(o) of the Comprehensive Environ21 mental Response, Compensation, and Liability Act of

22 1980 (relating to lender liability).’’.

23 TITLE X—FUNDING

Subtitle A—Expenditures from the Hazardous Substance Superfund

Sec. 1001. Expenditures from the hazardous substance superfund.

Sec. 1002. Authorization of appropriations from general revenues.
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Subtitle B—5–Year Extension of Hazardous Substance Superfund

Sec. 1011. 5-year extension of hazardous substance superfund.

1 Subtitle A—Expenditures from the

2 Hazardous Substance Superfund

3 SEC. 1001. EXPENDITURES FROM THE HAZARDOUS SUB4 STANCE SUPERFUND.

5 (a) EXPENDITURES.—Section 111 (42 U.S.C. 9611)

6 is amended by striking out subsections (a), (b), (c), (d),

7 and (e) and inserting in lieu thereof the following:

8 ‘‘(a) EXPENDITURES FROM HAZARDOUS SUBSTANCE

9 SUPERFUND.—

10 ‘‘(1) SUBSECTION (b) EXPENDITURES.—

11 Amounts appropriated to the Hazardous Substance

12 Superfund after January 1, 1996, pursuant to sec13 tion 9507(b)(1) of the Internal Revenue Code of

14 1986 and amounts credited under section 9602(b) of

15 such Code with respect to those appropriated

16 amounts are available, may be used only for the pur17 poses specified in subsection (b) of this section, and

18 shall remain available until expended.

19 ‘‘(2) SUBSECTION (c) EXPENDITURES.—

20 Amounts appropriated to the Hazardous Substance

21 Superfund pursuant to paragraphs (2), (3), (4), (5),

22 or (6) of section 9507(b) of the Internal Revenue

23 Code of 1986 and amounts credited under section

24 9602(b) of such Code with respect to those appro-
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1 priated amounts shall be available as provided in ap2 propriations Acts and may be used for the purposes

3 specified in subsection (c) of this section.

4 ‘‘(b) RESPONSE, REMOVAL, AND REMEDIATION.—

5 The President shall use amounts in the Fund as made

6 available by subsection (a)(1) for costs of response, re7 moval, and remediation (and administrative costs directly

8 related to such costs), including the following:

9 ‘‘(1) GOVERNMENT RESPONSE COSTS.—Pay10 ment of governmental response costs incurred pursu11 ant to section 104 of this title, including costs in12 curred pursuant to the Intervention on the High

13 Seas Act.

14 ‘‘(2) PRIVATE RESPONSE COST CLAIMS.—Pay15 ment of any claim for necessary response costs in16 curred by any other person as a result of carrying

17 out the national contingency plan established under

18 section 105 of this title, if such costs are approved

19 under such plan, are reasonable in amount based on

20 open and free competition or fair market value for

21 similar available goods and services, and are cer22 tified by the responsible Federal official.

23 ‘‘(3) ACQUISITION COSTS UNDER SECTION

24 104(j).—The costs incurred by the President in ac-
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1 quiring real estate or interests in real estate under

2 section 104(j) (relating to acquisition of property).

3 ‘‘(4) STATE AND LOCAL GOVERNMENT REIM4 BURSEMENT.—Reimbursement to State and local

5 governments under section 123, except that during

6 any fiscal year not more than 0.1 percent of the

7 total amount made available for purposes of this sec8 tion may be used for reimbursements to local gov9 ernments and no State may receive reimbursement

10 of more than $2,000,000 in any fiscal year.

11 ‘‘(5) FUNDS FOR STATES WITH DELEGATED

12 AUTHORITY.—Payment of any funds to a State pur13 suant to section 131 (relating to State authoriza14 tion).

15 ‘‘(6) CONTRACTS AND COOPERATIVE AGREE16 MENTS.—Payment for the implementation of any

17 contract or cooperative agreement under section

18 104(d).

19 ‘‘(7) NATURAL RESOURCE DAMAGE ASSESS20 MENTS.—Subject to the limitation in paragraph (8),

21 the costs of assessing both short-term and long-term

22 injury to, destruction of, or loss of any natural re23 sources resulting from a release of a hazardous sub24 stance.
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1 ‘‘(8) NATURAL RESOURCE DAMAGES.—Any

2 damages and assessment costs in excess of amounts

3 specified in section 107(c)(1)(D). The aggregate of

4 expenditures from the Fund under the preceding

5 sentence may not exceed $50,000,000 for each of

6 fiscal years 1996, 1997, and 1998 and

7 $100,000,000 for any fiscal year thereafter.

8 ‘‘(9) PAYMENTS RELATED TO CERTAIN REDUC9 TIONS, LIMITATIONS, AND EXEMPTIONS.—Payment

10 of costs and reimbursement in accordance with the

11 following:

12 ‘‘(A) Section 107(n)(1), relating to de

13 minimis contributor exemption from retroactive

14 liability.

15 ‘‘(B) Section 112(g), relating to reduction

16 of retroactive liability.

17 ‘‘(C) Section 107(n), relating to other limi18 tations and exemptions from liability.

19 No payment or reimbursement under this paragraph

20 shall include payment of, or reimbursement for, any

21 portion of attorneys’ fees that do not constitute nec22 essary costs of response within the meaning of sec23 tion 107(a)(4)(B).’’.

24 ‘‘(10) Payment of any funds to a State pursu25 ant to section 131 (relating to State delegation).
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1 ‘‘(11) Payment for the implementation of any

2 contract or cooperative agreement under section

3 104(d).’’.

4 ‘‘(c) ADMINISTRATION, OVERSIGHT, RESEARCH, AND

5 OTHER COSTS.—The President shall use amounts in the

6 Fund as made available pursuant to subsection (a)(2) for

7 the following costs (and administrative costs directly relat8 ed to such costs):

9 ‘‘(1) INVESTIGATION AND ENFORCEMENT.—The

10 costs of identifying, investigating, and taking en11 forcement action against releases of hazardous sub12 stances.

13 ‘‘(2) OVERHEAD.—(A) The costs of providing

14 services, equipment, and other overhead related to

15 the purposes of this Act and needed to supplement

16 equipment and services available through contractors

17 and other non-Federal entities.

18 ‘‘(B) The costs of establishing and maintaining

19 damage assessment capability for any Federal agen20 cy involved in strike forces, emergency task forces,

21 or other response teams under the National Contin22 gency Plan.

23 ‘‘(3) EMPLOYEE SAFETY PROGRAMS.—The cost

24 of maintaining programs otherwise authorized by

25 this Act to protect the health and safety of employ-
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1 ees involved in response to hazardous substance re2 leases.

3 ‘‘(4) GRANTS FOR TECHNICAL ASSISTANCE.—

4 The cost of grants under section 117(e) (relating to

5 public participation grants for technical assistance).

6 ‘‘(5) WORKER TRAINING AND EDUCATION

7 GRANTS.—The cost of grants under section 126(g)

8 of the Superfund Amendments and Reauthorization

9 Act of 1986 for training and education of workers

10 to the extent that such costs do not exceed

11 $10,000,000 for each of the fiscal years 1987

12 through 2000.

13 ‘‘(6) ATSDR ACTIVITIES.— Any costs incurred

14 in accordance with subsection (m) of this section (re15 lating to ATSDR) and section 104(i), including the

16 costs of epidemiologic and laboratory studies, health

17 assessments and health services, and other activities

18 authorized by section 104(i).

19 ‘‘(7) EVALUATION COSTS UNDER PETITION

20 PROVISIONS OF SECTION 105(d).—Costs incurred by

21 the President in evaluation facilities pursuant to pe22 titions under section 105(d) (relating to petitions for

23 assessment of release).

24 ‘‘(8) CONTRACT COSTS UNDER SECTION

25 104(a)(1).—The costs of contracts or arrangements
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1 entered into under section 104(a)(1) to oversee and

2 review the conduct of remedial investigations and

3 feasibility studies undertaken by persons other than

4 the President and the costs of appropriate Federal

5 and State oversight of remedial activities at National

6 Priorities List sites resulting from consent orders or

7 settlement agreements.

8 ‘‘(9) RESEARCH, DEVELOPMENT, AND DEM9 ONSTRATION COSTS UNDER SECTION 311.—The cost

10 of carrying out section 311 (relating to research, de11 velopment, and demonstration).

12 ‘‘(10) AWARDS UNDER SECTION 109.—The costs

13 of any awards granted under section 109(d) (relat14 ing to providing information concerning violations).

15 ‘‘(d) LIMITATIONS ON NATURAL RESOURCES

16 CLAIMS.—(1) No claim for natural resource damages as

17 described in subsection (b)(8) may be paid from the Fund

18 unless the President determines that the claimant has ex19 hausted all administrative and judicial remedies to recover

20 the amount of such claim from persons who may be liable

21 under section 107.

22 ‘‘(2) No money in the Fund may be used for the pay23 ment of any claim under subsection (b)(7) or (b)(8) of

24 this section where such expenses are associated with injury

25 or loss resulting from long-term exposure to ambient con-
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1 centrations of air pollutants from multiple or diffuse

2 sources.

3 ‘‘(e) OTHER LIMITATIONS.—(1) Claims against or

4 presented to the Fund shall not be valid or paid in excess

5 of the total unobligated balance in the Fund at any one

6 time. Such claims become valid and are payable only when

7 additional money is collected, appropriated, or otherwise

8 added to the Fund. Should the total claims outstanding

9 at any time exceed the current balance of the Fund, the

10 President shall pay such claims, to the extent authorized

11 under this section, in full in the order in which they were

12 finally determined.

13 ‘‘(2) No money in the Fund shall be available for re14 medial action, other than actions specified in subsection

15 (c) of this section, with respect to federally owned facili16 ties, except that money in the Fund shall be available for

17 the provision of alternative water supplies (including the

18 reimbursement of costs incurred by a municipality) in any

19 case involving groundwater contamination outside the

20 boundaries of a federally owned facility in which the feder21 ally owned facility is not the only potentially responsible

22 party.’’.

23 (b) ADDITIONAL AMENDMENTS.—(1) Section 111

24 (42 U.S.C. 9611) is further amended by striking out sub25 sections (j) and (n).
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1 (2) Section 107 (42 U.S.C. 9607) is amended by

2 striking out subsection (k).

3 SEC. 1002. AUTHORIZATION OF APPROPRIATIONS FROM

4 GENERAL REVENUES.

5 (a) AUTHORIZATION.—Section 111(p)(1) is amended

6 to read as follows:

7 ‘‘(1) IN GENERAL.—The following sums are au8 thorized to be appropriated, out of any money in the

9 Treasury not otherwise appropriated, to the Hazard10 ous Substance Superfund:

11 ‘‘(A) For fiscal year 1996, $250,000,000.

12 ‘‘(B) For fiscal year 1997, $250,000,000.

13 ‘‘(C) For fiscal year 1998, $250,000,000.

14 ‘‘(D) For fiscal year 1999, $250,000,000.

15 ‘‘(E) For fiscal year 2000, $250,000,000.

16 In addition, there is authorized to be appropriated to

17 the Hazardous Substance Superfund for each fiscal

18 year an amount equal to so much of the aggregate

19 amount authorized to be appropriated under this

20 subsection (and paragraph (2) of section 131(b) of

21 this title) as has not been appropriated before the

22 beginning of the fiscal year involved.’’.

23 (b) REPEAL OF DUPLICATIVE AUTHORIZATION.—(1)

24 Subsection (b) of section 517 of the Superfund Amend-
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1 ments and Reauthorization Act (26 U.S.C. 9507 note) is

2 hereby repealed.

3 (2) Section 9507(a)(2) of the Internal Revenue Code

4 of 1986 is amended by striking out ‘‘section 517(b) of the

5 Superfund Revenue Act of 1986’’ and inserting in lieu

6 thereof ‘‘section 111(p) of the Comprehensive Environ7 mental Response, Compensation, and Liability Act of

8 1980 (42 U.S.C. 9611(p))’’.

9 Subtitle B—5-Year Extension of

10 Hazardous Substance Superfund

11 SEC. 1011. 5-YEAR EXTENSION OF HAZARDOUS SUBSTANCE

12 SUPERFUND.

13 (a) EXTENSION OF TAXES.—

14 (1) The following provisions of the Internal

15 Revenue Code of 1986 are each amended by striking

16 ‘‘January 1, 1996’’ each place it appears and insert17 ing ‘‘January 1, 2001’’:

18 (A) Section 59A(e)(1) (relating to applica19 tion of environmental tax).

20 (B) Paragraphs (1) and (3) of section

21 4611(e) (relating to application of Hazardous

22 Substance Superfund financing rate).

23 (2) Paragraph (2) of section 4611(e) of such

24 Code is amended—
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1 (A) by striking ‘‘1993’’ and inserting

2 ‘‘1998’’,

3 (B) by striking ‘‘1994’’ each place it ap4 pears and inserting ‘‘1999’’, and

5 (C) by striking ‘‘1995’’ each place it ap6 pears and inserting ‘‘2000’’.

7 (b) INCREASE IN AGGREGATE TAX WHICH MAY BE

8 COLLECTED.—Paragraph (3) of section 4611(e) of such

9 Code is amended by striking ‘‘$11,970,000,000’’ each

10 place it appears and inserting ‘‘$22,000,000,000’’ and by

11 striking ‘‘December 31, 1995’’ and inserting ‘‘December

12 31, 2000’’.

13 (c) EXTENSION OF REPAYMENT DEADLINE FOR

14 SUPERFUND BORROWING.—Subparagraph (B) of section

15 9507(d)(3) of such Code is amended by striking ‘‘Decem16 ber 31, 1995’’ and inserting ‘‘December 31, 2000’’.

17 (d) ADDITIONAL SOURCE OF FUNDS FOR

18 SUPERFUND.—Section 9507(a) of such Code is amend19 ed—

20 (1) by striking out ‘‘or’’ at the end of para21 graph (2);

22 (2) by striking out the period at the end of

23 paragraph (3) and inserting in lieu thereof ‘‘, or’’;

24 and
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1 (3) by adding at the end the following new

2 paragraph:

3 ‘‘(4) transferred to the Superfund pursuant to

4 section 111(q) of CERCLA.’’.

5 (e) OTHER AUTHORIZED TRANSFERS.—Section

6 9507(b) of such Code is amended—

7 (1) by striking out ‘‘and’’ at the end of para8 graph (4);

9 (2) by striking out the period at the end of

10 paragraph (5) and inserting in lieu thereof ‘‘, and’’;

11 and

12 (3) by adding at the end the following new

13 paragraph:

14 ‘‘(6) all moneys transferred from any depart15 ment, agency, or instrumentality of the United

16 States pursuant to section 111(q) of CERCLA.’’.

17 (f) TRUST FUND PURPOSES.—Paragraph (1) of sec18 tion 9507(c) of such Code is amended to read as follows:

19 ‘‘(1) IN GENERAL.—(A) Amounts appropriated

20 to the Superfund after January 1, 1996, pursuant

21 to subsection (b)(1) shall be available only for the

22 purposes specified in section 111(b) of CERCLA.

23 ‘‘(B) Amounts appropriated to the Superfund

24 pursuant to paragraphs (2), (3), (4), (5), or (6) of

25 subsection (b) shall be available, as provided in ap-
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1 propriations Acts, only for the purposes specified in

2 section 111.’’.

3 (g) COORDINATION WITH OTHER PROVISIONS.—

4 Paragraph (2) of section 9507(e) of the Internal Revenue

5 Code of 1986 is amended by striking ‘‘CERCLA’’ and all

6 that follows through ‘‘Acts’’ and inserting ‘‘CERCLA, the

7 Superfund Amendments and Reauthorization Act of 1986,

8 and the Reform of Superfund Act of 1995 (or in any

9 amendment made by any of such Acts)’’.

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