```

[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4351 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 4351

  To amend the Comprehensive Environmental Response, Compensation and 
   Liability Act of 1980 (Superfund) to provide a mechanism for the 
allocation of liability among potentially responsible parties, and for 
                            other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                              May 5, 1994

 Mr. Boucher (for himself, Mr. Upton, and Ms. Lambert) introduced the 
following bill; which was referred jointly to the Committees on Energy 
            and Commerce and Public Works and Transportation

_______________________________________________________________________

                                 A BILL

 
  To amend the Comprehensive Environmental Response, Compensation and 
   Liability Act of 1980 (Superfund) to provide a mechanism for the 
allocation of liability among potentially responsible parties, and for 
                            other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Superfund Liability Allocation Act 
of 1994''.

SEC. 2. ALLOCATION PROCEDURES.

    The Comprehensive Environmental Response, Compensation and 
Liability Act of 1980 (Superfund) is amended by inserting after section 
126 the following new section:

``SEC. 127. ALLOCATION AT MULTIPARTY FACILITIES.

    ``(a) Scope.--
            ``(1) Post-introduction rods.--For each non-federally owned 
        facility listed on the National Priorities List involving 2 or 
        more potentially responsible parties for which the President 
        selects a remedial action on or after February 3, 1994, the 
        Administrator shall initiate the allocation process under this 
        section. This paragraph shall not apply to response actions 
        selected prior to such date.
            ``(2) Pre-introduction rods.--For each non-federally owned 
        facility listed on the National Priorities List involving 2 or 
        more potentially responsible parties, for any remedial action 
        selected by the President before February 3, 1994, the 
        Administrator shall initiate the allocation process under this 
        section, if requested to do so by a potentially responsible 
        party which has resolved its liability to the United States 
        with respect to the remedial action or which is performing the 
        remedial action pursuant to an order issued under section 
        106(a).
            ``(3) Other facilities.--The Administrator, as the 
        Administrator deems appropriate, may initiate the allocation 
        process under this section for any facility other than a 
        facility referred to in paragraph (1) or (2) involving 2 or 
        more potentially responsible parties.
            ``(4) Excluded facilities.--The allocation process under 
        this section shall not apply to any of the following:
                    ``(A) A facility for which there has been a final 
                settlement, decree, or order that determines all 
                liability or allocated shares of all potentially 
                responsible parties.
                    ``(B) A facility for which the response action is 
                being carried out by a State pursuant to the authority 
                of this Act.
                    ``(C) A facility at which all of the potentially 
                responsible parties are facility owners or operators.
            ``(5) Multiple remedial actions.--An allocation under this 
        section, shall apply to all remedial actions selected by the 
        President for a facility on or after February 3, 1994 (but not 
        to those remedial actions described in paragraph (2)), unless 
        the allocator determines that the allocation should address 
        only one or more of such remedial actions.
            ``(6) Multiple facilities.--An allocation under this 
        section may address more than 1 facility where appropriate. 
        Where appropriate, the Administrator may combine allocations 
        performed pursuant to this subsection for separate remedial 
        actions at the same facility, or for different facilities.
            ``(7) Effect of allocation.--An allocation performed 
        pursuant to paragraph (2) or (3) of this section shall not be 
        construed to require--
                    ``(A) payment of an orphan share pursuant to this 
                section; or
                    ``(B) the conferral of reimbursement rights 
                pursuant to this section.
            ``(8) Settlement offers after commencement of litigation.--
        The provisions of this section shall not apply to any offer of 
        settlement made after expiration of the moratorium period under 
        subsection (b).
    ``(b) Moratorium on Commencement or Continuation of Suits.--
            ``(1) Moratorium on commencement.--No person may assert any 
        claim pursuant to section 107 of this Act or commence any civil 
        action seeking recovery of any response costs in connection 
        with a response action for which an allocation is required 
        under subsection (a)(1) or (2), or for which the Administrator 
        has initiated an allocation under subsection (a)(3), until 90 
        days after issuance of the allocator's report under subsections 
        (h) or (m), whichever is later.
            ``(2) Stay of existing actions.--If a claim under section 
        107 of this Act or an action seeking recovery of response costs 
        in connection with a response action for which an allocation is 
        to be performed under this section is pending--
                    ``(A) upon the date of enactment of the Superfund 
                Reform Act of 1994, or
                    ``(B) upon initiation of an allocation,
        the action or claim shall be stayed until 90 days after the 
        issuance of the allocator's report, unless the court determines 
        that a stay will result in manifest injustice.
            ``(3) Statute of limitations.--Any applicable limitations 
        period with respect to a cause of action subject to paragraph 
        (1) shall be tolled from the earlier of the following until 180 
        days after the allocation report required by this section has 
        been issued by the allocator:
                    ``(A) The date of listing of the facility on the 
                National Priorities List.
                    ``(B) The commencement of the allocation process 
                pursuant to this section.
    ``(c) Commencement of Allocation.--
            ``(1) Responsible party search.--At all facilities subject 
        to this section, the Administrator shall, as soon as 
        practicable, but not later than 60 days after the commencement 
        of the remedial investigation, initiate a thorough 
        investigation and search for all potentially responsible 
        parties, using his authorities under section 104. Any person 
        may submit information to the Administrator concerning any 
        potentially responsible party at the facility, and the 
        Administrator shall consider such information in carrying out 
        the responsible party search.
            ``(2) Notification of de minimis parties.--As soon as 
        practicable after receipt of sufficient information, but not 
        more than 12 months after the commencement of the remedial 
        investigation, the Administrator shall take each of the 
        following actions:
                    ``(A) The Administrator shall notify any 
                potentially responsible party who the Administrator 
                determines is eligible for an expedited final 
                settlement in accordance with section 122(g)(1)(A) of 
                its eligibility, based on information available to the 
                Administrator at the time the determination is made.
                    ``(B) The Administrator shall submit a written 
                settlement offer to each party notified under 
                subparagraph (A) no later than 60 days after such 
                notification.
            ``(3) Preliminary notice to other parties.--As soon as 
        practicable after receipt of sufficient information, but not 
        later than 18 months after commencement of the remedial 
        investigation, the Administrator shall--
                    ``(A) notify any party not previously notified 
                under paragraph (2) who the Administrator determines is 
                eligible for an expedited final settlement in 
                accordance with section 122(g)(1)(A) of its 
                eligibility, based on information available to the 
                Administrator at the time the determination is made and 
                submit a written settlement offer to each party 
                notified pursuant to this subparagraph no later than 60 
                days after such notification;
                    ``(B) issue a list of all potentially responsible 
                parties preliminarily identified by the Administrator 
                to all such parties;
                    ``(C) notify the public, in accordance with section 
                117(d), of the list of potentially responsible parties 
                identified pursuant to subparagraphs (A) and (B) by the 
                Administrator; and
                    ``(D) make available all responses to information 
                requests, as well as other relevant information 
                concerning the facility and potentially responsible 
                parties, to the notified parties, to the extent it is 
                available to the Administrator. The Administrator shall 
                not make available any privileged or confidential 
                information, except as otherwise authorized by law.
        The Administrator shall take the actions specified in this 
        paragraph within 9 months after the date of enactment of this 
        section for all facilities eligible for allocation under 
        subsection (a)(1) or (a)(2) for which the responsible party 
        search required by a paragraph (1) was substantially complete 
        prior to the date of the enactment of this section.
            ``(4) Status of parties.--At the time of proposing the list 
        of potentially responsible parties under paragraph (3), the 
        Administrator shall--
                    ``(A) identify parties that are eligible for 
                expedited settlement pursuant to section 122(g);
                    ``(B) identify parties who are not eligible for 
                such expedited settlement; or
                    ``(C) determine that there is insufficient 
                information to ascertain whether or not the party is 
                entitled to such expedited settlement.
            ``(5) Nomination of parties.--(A) For 60 days after 
        information has been made available pursuant to paragraph (3), 
        the parties identified by the Administrator and members of the 
        affected community shall have the opportunity to identify and 
        nominate additional potentially responsible parties or 
        otherwise provide information relevant to the facility or such 
        potentially responsible parties. This period may be extended by 
        the Administrator for an additional 30 days upon request of any 
        person.
            ``(B) Any proposal for the addition of any potentially 
        responsible party shall be supported by full disclosure to the 
        Administrator of all available information concerning that 
        party's liability and contribution of hazardous substances to 
        the site.
            ``(6) List of allocation parties.--(A) Within 60 days after 
        the end of the period specified in paragraph (5)(A) for the 
        proposed additional parties, the Administrator shall--
                    ``(i) issue a list of parties subject to the 
                allocation process (hereinafter referred to in this 
                section as the `allocation parties');
                    ``(ii) identify in writing, as to each of the 
                proposed additional parties, which parties the 
                Administrator has determined, in the Administrator's 
                sole discretion:
                            ``(I) to be eligible for expedited 
                        settlement pursuant to section 122(g),
                            ``(II) not to be eligible for such 
                        expedited settlement, and
                            ``(III) for whom insufficient information 
                        exists to determine whether or not the party is 
                        eligible for such expedited settlement; and
                    ``(iii) identify (in writing supported by brief 
                explanation) those parties as to which the 
                Administrator has determined, in the Administrator's 
                sole discretion, that there is an inadequate basis in 
                law or fact to determine that the party is potentially 
                liable.
        For each party identified under clause (iii), the Administrator 
        shall further identify whether that party if liable, would be 
        eligible for an expedited settlement.
            ``(B) At the time of issuance of the list of parties 
        provided for in subparagraph (A), the Administrator shall 
        provide the potentially responsible parties who received notice 
        under this paragraph with a list of neutral parties who are not 
        employees of the United States and who the Administrator 
        determines, in the Administrator's sole discretion, are 
        qualified to perform an allocation at the facility.
            ``(C) De minimis parties the Administrator identifies as 
        potentially liable but entitled to expedited settlement 
        pursuant to this section, shall not be subject to, or assigned 
        a share in, the allocation (except to the extent required to 
        determine the orphan share pursuant to subsection (h)), unless 
        that party fails to reach an agreement with the President on 
        settlement terms within 30 days after the offer.
            ``(D) If the Administrator determines that there is an 
        inadequate basis in law or fact to conclude that a party is 
        liable based on the information presented by the nominating 
        party or otherwise available to the Administrator, and if the 
        Administrator has determined the party to be eligible for an 
        expedited settlement, the party shall not be subject to, and 
        shall not be assigned a share in, the allocation. With respect 
        to all other parties, the Administrator's determination shall 
        be accorded deference by the allocator. For such parties the 
        allocator shall consider the Administrator's determination 
        together with the allocation factors listed in subsection 
        (h)(2).
            ``(E) The Administrator's determinations for purposes of 
        this subsection shall not be subject to judicial review, nor 
        shall any determination or explanation provided for purposes of 
        the allocation be admissible for any purpose in an action 
        commenced by the United States against the party that is the 
        subject of the determination or any other party.
            ``(F) The allocator may assign a zero share to any party 
        the allocator deems should receive such a share in 
        consideration of the allocation factors including the 
        Administrator's determinations under subparagraph (C).
            ``(G) If a party is included in the allocation pursuant to 
        the nomination of a potentially responsible party pursuant to 
        subsection (c)(5), but assigned a zero share by the allocator, 
        that party's costs of participating in the allocation 
        (including reasonable attorneys' fees) shall be borne by the 
        party who proposed the addition of the party to the allocation.
    ``(d) De Minimis Settlement Offer.--(1) Within 30 days after the 
final list of parties is issued pursuant to paragraph (6) of subsection 
(c), the Administrator shall submit a written settlement offer to any 
party identified as a potentially responsible party pursuant to this 
section who the Administrator has determined to be eligible for an 
expedited final settlement in accordance with section 122(g)(1)(A), and 
who has not entered into a settlement with the United States regarding 
the matters being addressed by the allocation.
    ``(2) The President shall not include any premia pursuant to 
section 122(g) in a settlement offer made pursuant to paragraph (1) 
more than 60 days after the date the offer is required to be made 
pursuant to paragraph (1) to a party that is a small business.
    ``(e) Selection of Allocator.--
            ``(1) Proposal of additional candidates.--Any party 
        identified by the Administrator under subsection (c) may 
        propose any person whom such party deems qualified for 
        selection as an allocator in addition to those proposed from 
        the list provided under subsection (c)(6)(B).
            ``(2) Selection of allocator by allocation parties.--(A) 
        The allocation parties shall select an allocator from the list 
        of allocators proposed by the Administrator or under paragraph 
        (1) by the following voting method with each allocation party 
        having a single vote:
                    ``(i) Each allocation party and the Administrator 
                voting for the identified but insolvent or defunct 
                parties shall numerically rank the individuals on the 
                final list of proposed allocators, with a ranking of 1 
                indicating first preference, and forward its vote to 
                the Administrator within 30 days of the issuance of the 
                final list of allocators pursuant to subsection 
                (c)(6)(B).
                    ``(ii) The proposed allocator who receives the 
                lowest combined numerical score, taking into account 
                all votes submitted to the Administrator pursuant to 
                subparagraph (i), and who agrees to serve as allocator, 
                shall be determined to be the allocator.
        The Administrator may cast the votes of identified but 
        insolvent or defunct parties.
            ``(3) Peremptory strike.--The Administrator may reject any 
        allocator selected by the allocation parties if the proposed 
        allocator is not on the list provided under paragraph (3)(D) of 
        subsection (c). In the case of any such rejection, the 
        allocation parties shall select the allocator in order of 
        numerical ranking in accordance with this subsection.
            ``(4) Selection of allocator by epa.--If the allocation 
        parties do not select an allocator pursuant to paragraph (3) 
        within 30 days after receipt of the list provided under 
        paragraph (2), the Administrator shall select the allocator.
    ``(f) Contract.--Following selection of the allocator, the 
Administrator shall enter into a contract with the selected allocator 
for the provision of allocation services, and immediately make 
available all responses to information requests, as well as other 
relevant information concerning the facility and potentially 
responsible parties, to the allocator. The Administrator has the 
authority to use the procurement procedures set forth in section 109(e) 
to procure the services of a neutral professional for use in conducting 
allocation procedures under this section, whether or not the neutral 
professional actually conducts such allocation procedures.
    ``(g) Potentially Responsible Party Settlement.--At any time prior 
to the issuance of an allocation report as described in subsection (h), 
any group of potentially responsible parties may submit to the 
allocator a private allocation for the remedial action or operable 
unit. If such private allocation meets all of the following criteria, 
the allocator shall promptly adopt it as the allocation report:
            ``(1) The private allocation is a binding allocation of 100 
        percent of the past, present, and future recoverable costs of 
        the remedial action or operable unit.
            ``(2) The private allocation does not allocate any share of 
        response costs to any person who is not a signatory to the 
        proposed private allocation or, in the case of any orphan 
        share, unless the United States is a signatory to the proposed 
        private allocation.
            ``(3) The signatories to the proposed private allocation 
        waive their contribution rights with respect to the remedial 
        action or operable unit thereof against all other potentially 
        responsible parties at the facility.
    ``(h) Allocation Determination.--
            ``(1) Settlement and allocation report.--Following issuance 
        of the final list of allocation parties pursuant to subsection 
        (c)(6)(A)(i), the allocator shall initiate and conduct an 
        allocation process that shall culminate in the issuance of a 
        written report, with a nonbinding, equitable allocation of the 
        percentage shares of responsibility of all allocation parties, 
        including the orphan share, for the facility, and provide such 
        report to the allocation parties and the Administrator. The 
        allocator shall provide the report to the allocation parties 
        and the Administrator within 180 days of the issuance of the 
        list of parties pursuant to subsection (c)(6) or the date of 
        the contract for allocation service pursuant to subsection (f), 
        whichever is later. Upon request, for good cause shown, the 
        Administrator may grant the allocator additional time to 
        complete the allocation, not to exceed 90 days.
            ``(2) Factors in the allocation.--The allocator shall 
        prepare a nonbinding, equitable allocation of percentage shares 
        for the facility based on the following factors:
                    ``(A) The amount of hazardous substances 
                contributed by each allocation party.
                    ``(B) The degree of toxicity of hazardous 
                substances contributed by each allocation party.
                    ``(C) The mobility of hazardous substances 
                contributed by each allocation party.
                    ``(D) The degree of involvement of each allocation 
                party in the generation, transportation, treatment, 
                storage, or disposal of the hazardous substance.
                    ``(E) The degree of care exercised by each 
                allocation party with respect to the hazardous 
                substance, taking into account the characteristics of 
                the hazardous substance.
                    ``(F) The cooperation of each allocation party in 
                contributing to the response action and in providing 
                complete and timely information during the allocation 
                process.
                    ``(G) Such other factors that the Administrator 
                determines are appropriate by published guidance. Any 
                such guidance shall be consistent with this Act and 
                shall be published only after notice and opportunity 
                for public comment.
            ``(3) Conduct of allocation process.--The allocator shall 
        conduct the allocation process and render a decision based 
        solely on the provisions of this section, including the 
        allocation factors specified in paragraph (2). Each party to 
        the allocation shall be afforded an opportunity to be heard 
        (either orally or in writing, at the allocator's discretion), 
        and an opportunity to comment on a draft allocation report. The 
        allocator shall not be required to respond to comments.
            ``(4) Identification of orphan shares.--
                    ``(A) Components of orphan share.--The allocator 
                may determine that a percentage share for the facility 
                is specifically attributable to an orphan share. The 
                orphan share shall consist only of the following:
                            ``(i) Shares attributable to hazardous 
                        substances that the allocator determines, on 
                        the basis of information presented, to be 
                        specifically attributable to identified but 
                        insolvent or defunct allocation parties who are 
                        not affiliated with any viable allocation 
                        party.
                            ``(ii) The difference between the aggregate 
                        shares that the allocator determines, on the 
                        basis of the information presented, is 
                        specifically attributable to allocation parties 
                        that are contributors of municipal solid waste, 
                        and the share actually assumed by those parties 
                        in any settlements with the United States 
                        pursuant to subsection 122(g), including the 
                        fair market value of in-kind services provided 
                        by a municipality.
                            ``(iii) The difference between the 
                        aggregate share that the allocator determines, 
                        on the basis of information presented, to be 
                        specifically attributable to allocation parties 
                        with a limited ability to pay response costs 
                        and the share actually assumed by those parties 
                        in any settlements with the United States 
                        pursuant to subsection 122(g).
                    ``(B) Not included in orphan share.--Shares 
                attributable to hazardous substances that the allocator 
                cannot attribute to any identified party shall be 
                distributed among the allocation parties, including the 
                orphan share.
    ``(i) Answers and Certifications to Allocator's Information 
Requests.--
            ``(1) Subpoenas and information requests.--Where necessary 
        to assist in determining the allocation of shares, the 
        allocator may request information or documents from any 
        allocation party in accordance with paragraph (2) or (5) of 
        section 104(e), and require by subpoena the attendance of 
        persons or the production of documents, or other information in 
        accordance with section 104(e)(7). Any allocation party to whom 
        a request is directed shall include in the response a 
        certification by a responsible representative or authorized 
        representative that satisfies the requirement of section 
        104(e)(3). The allocator may also request the Administrator to 
        utilize the authorities of paragraph (2) and to exercise any 
        information-gathering authority of the Administrator under this 
        Act.
            ``(2) Powers of the allocator.--In addition to the 
        information-gathering authority set forth in paragraph (1), the 
        allocator shall have the authority to schedule meetings and 
        require the attendance of allocation parties at such meetings; 
        to require that allocation parties wishing to present similar 
        legal or factual positions consolidate their presentations; to 
        obtain or employ support services, including secretarial and 
        clerical services, computer support services, and legal and 
        investigative services; and to take any other actions necessary 
        to conduct a fair, efficient, and impartial allocation process.
    ``(j) Civil and Criminal Penalties.--
            ``(1) Civil penalties.--Where the allocator issues an 
        administrative subpoena or information request pursuant to 
        subsection (i), a party who unreasonably fails to comply with 
        the subpoena or request shall be subject to a civil penalty not 
        to exceed $25,000 for each day of noncompliance.
            ``(2) Enforcement.--The allocator may seek enforcement of 
        an administrative subpoena or information request pursuant to 
        subsection (i)(1), and shall seek such enforcement by 
        requesting that the Attorney General commence an action to 
        enforce the subpoena or request. The Attorney General, within 
        30 days after receiving such request from the allocator, 
        shall--
                    ``(A) notify the allocator that the Attorney 
                General will commence an action to enforce the subpoena 
                or information request;
                    ``(B) notify the allocator that the Attorney 
                General will not seek enforcement of the subpoena or 
                request because the subpoena or request is barred by 
                law or would result in annoyance, embarrassment, 
                oppression, or undue burden or expense to the party to 
                whom it was issued;
                    ``(C) notify the allocator that the Attorney 
                General has insufficient information on which to 
                determine whether an enforcement action is appropriate.
            ``(3) Failure of attorney general to respond.--If the 
        Attorney General fails to provide any response to the allocator 
        within 30 days of a request for enforcement of a subpoena or 
        information request, the allocator may retain counsel to 
        commence a civil action to enforce the subpoena or information 
        request.
            ``(4) Penalty.--If the Attorney General or allocator 
        prevails in an action to enforce an allocator's subpoena or 
        information request, the party who failed to comply shall be 
        subject to a sanction that may include civil penalties as 
        provided in subparagraph (B). The court shall require such 
        party to pay the reasonable expenses, including attorney's 
        fees, caused by the failure to comply, unless the court finds 
        that the failure was substantially justified or that other 
        circumstances make an award of expenses unjust.
            ``(5) Criminal.--Any person who knowingly makes any false 
        material statement or representation in the response to an 
        allocator's information request or subpoena issued pursuant to 
        subsection (i) shall be deemed to have made a false statement 
        on a matter within the jurisdiction of the United States within 
        the meaning of 18 U.S.C. 1001.
    ``(k) Document Repository; Confidentiality.--
            ``(1) Document repository.--The allocator shall establish 
        and maintain a document repository containing copies of all 
        documents and information--
                    ``(A) provided by the Administrator pursuant to 
                this section,
                    ``(B) provided or generated by the allocation 
                parties, or
                    ``(C) generated by the allocator during the 
                allocation.
        The documents and information in the document repository shall 
        be available only to the parties to the allocation process for 
        review and copying at their own expense, subject to the 
        confidentiality provisions of paragraph (2). The Administrator 
        shall provide to the allocator all information obtained under 
        section 104(e), including information entitled to protection 
        under section 1905 of title 18, United States Code, or exempt 
        from disclosure pursuant to section 552(a) of title 5, United 
        States Code. An allocation party shall not assert any privilege 
        as a basis for withholding any information from the allocator.
            ``(2) Confidentiality.--All documents and materials 
        submitted to the allocator or placed in the document 
        repository, together with the record of any information 
        generated or obtained during the allocation process, shall be 
        confidential. The allocator, each allocation party, the 
        Administrator, and the Attorney General shall maintain such 
        documents and materials, together with the record of any 
        information generated or obtained during the allocation, as 
        confidential and are prohibited from using any such material in 
        any other matter or proceeding, and shall not be subject to 
        disclosure under section 552 of title 5. Such material shall 
        not be discoverable or admissible in any other Federal, State, 
        or local judicial, administrative, or legislative proceedings, 
        except--
                    ``(A) a new allocation pursuant to subsections (m) 
                or (n) for the same remedial action or operable unit, 
                or
                    ``(B) an initial allocation for a different 
                remedial action or operable unit at the same facility.
        Nothing in this section shall be construed to authorize any 
        person, including the allocator, to withhold any documents or 
        information from Congress, or any duly authorized Committee 
        thereof, or limit in any manner the right of Congress, or any 
        duly authorized Committee thereof, to obtain such documents or 
        information.
            ``(3) Discoverability and admissibility.--Notwithstanding 
        the foregoing, if the original of any document or material 
        submitted to the allocator or placed in the document repository 
        was, in the hands of the party which provided it, otherwise 
        discoverable or admissible, then such original document, if 
        subsequently sought from such party, shall remain so. If a fact 
        generated or obtained during the allocation was, in the hands 
        of a witness, otherwise discoverable or admissible, then such 
        fact, if subsequently sought from such other party, shall 
        remain so.
            ``(4) No waiver of privilege.--The submission of, 
        documents, or information pursuant to the allocation process 
        shall not be deemed to be a waiver of any privilege, applicable 
        to such documents or information under any Federal or State law 
        or rule of discovery or evidence.
            ``(5) Procedure when discovery is sought.--Any person, 
        including the United States and any Federal, State or local 
        agency, department or instrumentality, receiving any request 
        for a statement, document, or material submitted, or for the 
        record of any allocation proceeding, shall promptly notify the 
        person who originally submitted such item and shall provide 
        such submitting person the opportunity to assert and defend the 
        confidentiality of such item. No person shall release or 
        provide a copy of the item to any person not a party to such 
        allocation, except as may be required by court order.
            ``(6) Civil penalty for violation of confidentiality.--Any 
        person who fails to maintain the confidentiality of any 
        statements, documents or information generated or obtained 
        during an allocation proceeding, or who releases any such 
        information in violation of this section shall be subject to 
        civil penalties of up to $25,000 per violation. Such penalties 
        may be sought in a civil action initiated by the Attorney 
        General on behalf of the United States, or any allocation party 
        adversely affected by the failure to maintain confidentiality.
    ``(l) Rejection of Allocator's Report.--The Administrator and the 
Attorney General of the United States may reject the allocator's report 
if they jointly determine that--
            ``(1) no rational interpretation of the facts before the 
        allocator, in light of the factors required to be considered, 
        would form a reasonable basis for the shares assigned to the 
        parties;
            ``(2) the allocation was affected by bias, fraud, or 
        unlawful conduct; or
            ``(3) the allocation was substantially and directly 
        affected by procedural error.
The allocator's report may not be rejected after the United States has 
accepted a settlement offer (excluding de minimis or other expedited 
settlements) based on the allocation. The Administrator and the 
Attorney General shall seek to make any such determination within 180 
days after the receipt of the first offer based on the allocator's 
report. The determinations of the Administrator and the Attorney 
General under this subsection shall not be judicially reviewable. No 
such determination may be delegated to any officer or employee of the 
Environmental Protection Agency or the Department of Justice below the 
level of an Assistant Secretary or Acting Assistant Secretary with 
authority for implementing this Act at the Environmental Protection 
Agency or the Department of Justice.
    ``(m) Second Allocation.--If the United States rejects an 
allocator's report, the parties shall select a new allocator pursuant 
to subsection (e) to perform, on an expedited basis, a new allocation 
based on the same record available to the first allocator. The 
moratorium on commencement of litigation and tolling of statutes of 
limitation set forth in subsection (b) shall be extended until 90 days 
after the issuance of the second allocation report. If the United 
States rejects the second allocation the President may, following the 
expiration of the moratorium on commencement of litigation, commence an 
action under section 107.
    ``(n) New Information.--Any settling party, including the United 
States, may seek a new allocation pursuant to subsection (h), where 
that party presents clear and convincing information or the United 
States otherwise determines on the basis of clear and convincing 
information that--
            ``(1) the allocator did not have information concerning 35 
        percent or more of the materials containing hazardous 
        substances at the facility, and that this information has been 
        discovered subsequent to the issuance of the allocator's 
        report; or
            ``(2) the allocator did not have information concerning a 
        person not subject to the allocation who contributed 15 percent 
        or more of materials containing hazardous substances at the 
        facility, and that this information has been discovered 
        subsequent to the issuance of the allocator's report.
Determinations by the United States pursuant to this subsection shall 
not be subject to judicial review.
    ``(o) Settlement Following Allocation.--
            ``(1) Obligations of the united states.--If, within 90 days 
        after issuance of the alloctor's report, an allocation party 
        (A) makes a written offer to settle with respect to the 
        response action based on the percentage share specified by the 
        allocator and on the additional terms and conditions of 
        settlement (other than the percentage share of liability) that 
        are acceptable to the President, and (B) is not in default on 
        any information requests under this Act, then the President 
        shall not seek a higher percentage share of response costs 
        other than the premia authorized by this section, unless the 
        President has rejected the offer on a basis other than the 
        percentage share of liability, or unless the Administrator and 
        the Attorney General have rejected the allocation report 
        pursuant to subsection (l).
            ``(2) Explanation of refusal to settle.--If the 
        Administrator and the Attorney General determine not to settle 
        on the basis of the allocation, they shall provide the 
        allocation parties and members of the affected community with a 
        written explanation of the Administrator's determination.
            ``(3) Settlement provisions.--Settlements based on 
        allocated shares shall include each of the following:
                    ``(A) A waiver of contribution rights against all 
                parties who are potentially responsible parties for the 
                response action, as well as a waiver of any rights to 
                challenge any settlement the President enters into with 
                any other potentially responsible party.
                    ``(B) Covenants not to sue, consistent with section 
                122(f), and provisions regarding performance or 
                adequate assurance of performance of response actions 
                addressed in the settlement.
                    ``(C) A premium determined on a site specific basis 
                and subject to the limitations set forth in paragraph 
                (4), that compensates for the United States litigation 
                risk with respect to potentially responsible parties 
                who have not resolved their liability to the United 
                States, except that no such premium shall apply if all 
                parties settle or the settlement covers 100 percent of 
                response costs.
                    ``(D) Contribution protection, consistent with 
                section 113(f), regarding matters addressed in the 
                settlement. Such settlement does not discharge any of 
                the other potentially responsible parties unless its 
                terms so provide, but it reduces the potential 
                liability of the others by the amount of the 
                settlement.
                    ``(E) Provisions through which the settling parties 
                shall receive reimbursement from the Fund for any 
                response costs incurred by such parties in excess of 
                the aggregate of their allocated share and any premia 
                required by the settlement. Such right to reimbursement 
                shall not be contingent on the United States recovery 
                of response costs from any responsible person not a 
                party to any settlement with the United States.
            ``(4) The premia authorized by paragraph (3)(C) for 
        litigation risk shall not exceed the following:
                    ``(A) Five percent of the total costs assumed by a 
                settling party, where settlements (and any orphan share 
                identified by the allocator) account for 80 percent or 
                more of responsibility at the facility.
                    ``(B) Ten percent of the total costs assumed by a 
                settling party, where settlements (and any orphan share 
                identified by the allocator) account for more than 60 
                percent and less than 80 percent of responsibility at 
                the facility.
                    ``(C) Fifteen percent of the total costs assumed by 
                a settling party, where settlements (and any orphan 
                share identified by the allocator) account for more 
                than 40 percent and less than 60 percent of 
                responsibility at the facility.
                    ``(D) Twenty percent of the total costs assumed by 
                a settling party, where settlements (and any orphan 
                share identified by the allocator) account for 40 
                percent or less of responsibility at the facility.
        The Administrator shall have authority to promulgate 
        regulations to modify the premia percentages established in 
        this subsection. The Administrator may not propose a rule 
        before the date 36 months after the enactment of this section, 
        and no such rule may take effect before the date 48 months 
        after the enactment of this section. Such rule must be based 
        upon an administrative record establishing that such 
        modification is necessary to reflect actual experience 
        regarding the litigation risk faced by the United States in 
        proceeding against nonsettling parties under this section.
            ``(5) Authorization of reimbursement.--In any settlement in 
        which a party agrees to perform response work in excess of its 
        share, the Administrator shall have authority to carry out his 
        duty to reimburse settling parties under this section pursuant 
        to such reasonable procedures as the Administrator may 
        prescribe.
            ``(6) Financial controls on reimbursement.--The 
        Administrator shall require all claims for reimbursement to be 
        supported by--
                    ``(A) documentation of actual costs incurred; and
                    ``(B) sufficient information to enable the 
                Administrator to determine whether such costs were 
                reasonable.
        The Administrator may require independent auditing of any claim 
        for reimbursement.
    ``(p) Post-Settlement Litigation.--
            ``(1) In general.--The United States may commence an action 
        under section 107 against any person liable under that section 
        who has not resolved its liability to the United States 
        following allocation, on or after 90 days following issuance of 
        the allocator's report. In any such action, such person shall 
        be liable in accordance with section 107 for all response costs 
        not recovered through settlements with other persons. Such 
        recoverable costs shall include any federally funded orphan 
        share identified in accordance with subsection (h), but shall 
        not include any shares allocated to Federal, State, or local 
        governmental agencies, departments, or instrumentalities. 
        Defendants in any such action may implead only allocation 
        parties who did not resolve their liability to the United 
        States. The Administrator and the Attorney General shall issue 
        guidelines to ensure that the relief sought against de minimis 
        parties under principles of joint and several liability will 
        not be grossly disproportionate to their contribution to the 
        facility. The application of such guidelines is committed to 
        the discretion of the Administrator and the Attorney General.
            ``(2) Certification.--In commencing any action under 
        section 107 following allocation, the Attorney General must 
        certify, in the complaint, that the United States has been 
        unable to reach a settlement that would be in the best 
        interests of the United States. This certification shall not be 
        subject to judicial review.
            ``(3) Defendants.--No person may commence an action under 
        section 107 or otherwise seek contribution against any person 
        who was not identified as an allocation party pursuant to 
        subsection (c) or subsequently identified as a potentially 
        liable party under subsection (n) (relating to new 
        information).
            ``(4) Admissibility of allocator's report.--The allocator's 
        report shall not be admissible in any court for any purpose, 
        except as set forth in this section. The allocator's report, 
        subject to the rules and discretion of the court, may be 
        admissible solely for the purpose of assisting the court in 
        making an equitable allocation of response costs among the 
        relative shares of nonsettling liable parties.
            ``(5) Costs of allocation procedure on orphan share.--
                    ``(A) Included as costs of response.--The costs of 
                implementing the allocation procedure set forth in this 
                section, including reasonable fees and expenses of the 
                allocator, shall be considered necessary costs of 
                response for purposes of this Act.
                    ``(B) Orphan share.--The costs attributable to any 
                funding of orphan shares identified by the allocator 
                pursuant to subsection (e)(4) also shall be considered 
                necessary costs of response for purposes of this Act, 
                and shall be recoverable from liable parties who do not 
                resolve their liability on the basis of the allocation.
            ``(6) Rejection of share determination.--In any action by 
        the United States under this title, if the United States has 
        rejected an offer of settlement that is consistent with 
        subsection (o) and that was presented to the United States 
        prior to the commencement of the action, the offeror shall be 
        entitled to recover from the United States the offeror's 
        reasonable costs of defending the action after the making of 
        the offer (including reasonable attorneys' fees) if the 
        ultimate resolution of liability or allocation of costs with 
        respect to the offeror (taking into account all settlements and 
        reimbursements with respect to the facility other than those 
        attributable to insurance or indemnification), is as, or more, 
        favorable to the offeror than the offer based on the 
        allocation.
    ``(q) Reimbursement for UAO Performance.--
            ``(1) Reimbursement.--Parties who satisfactorily perform 
        work under an administrative order issued under section 106(a) 
        with respect to a remedial action for which an allocation is 
        required by subsection (a)(1), shall be entitled to 
        reimbursement for the reasonable and necessary costs of work 
        they perform in excess of the share assigned to them in the 
        allocation in accordance with the provisions of this section, 
        provided that the allocation report is not rejected by the 
        United States and, that, at the end of the moratorium following 
        the allocation, the performing party, in consideration of such 
        reimbursement--
                    ``(A) agrees not to contest liability for all 
                response costs not inconsistent with the National 
                Contingency Plan to the extent of the allocated share;
                    ``(B) receives no covenant not to sue;
                    ``(C) agrees that its reimbursement shall be 
                reduced by an amount equal to the maximum litigation 
                risk premium provided for in subsection (o)(4) based on 
                the total allocated shares of the allocation parties 
                who have not reached settlements with the United States 
                by the end of the moratorium on commencement of actions 
                provided in subsection (b);
                    ``(D) waives contribution rights against all 
                parties who are potentially responsible parties for the 
                response action, as well as waives any rights to 
                challenge any settlement the President enters into with 
                any other potentially responsible party.
            ``(2) Offset.--Any and all reimbursement provided to a 
        performing party for work in excess of its share is subject to 
        equitable offset or reduction by the Administrator upon a 
        finding of a failure to perform any aspect of the remedy in a 
        proper and timely manner.
            ``(3) Time of payment.--Any and all reimbursement to a 
        performing party for work in excess of its share shall be paid 
        after work is completed, but no sooner than completion of the 
        construction of the remedial action.
            ``(4) Limit on orphan share funding.--The amount of orphan 
        share funding available to the performing party shall be 
        further limited as follows:
                    ``(A) Performing parties who fully waive their 
                right to challenge remedy selection at the end of the 
                moratorium following allocation shall be entitled to 
                full reimbursement of costs in excess of the party's 
                share and attributable by the allocator to the orphan 
                share paid in nominal dollars after the work is 
                completed, but no sooner than completion of the 
                construction of the remedial action.
                    ``(B) Performing parties who retain their right to 
                challenge the remedy shall be reimbursed for 90 percent 
                of orphan share funding, paid in nominal dollars after 
                the work is completed, but no sooner than completion of 
                the construction of the remedial action, unless the 
                orphan share is less than 20 percent of responsibility 
                at the site, in which case such parties shall be 
                reimbursed only 80 percent of the orphan share.
        For purposes of this subsection `nominal dollar' means actual 
        dollars spent by the performing party, without increase for 
        interest or inflation.
            ``(5) Interest.--Reimbursement for work in excess of the 
        performing party's allocated share but that is not attributable 
        to the orphan share shall be paid in nominal dollars after work 
        is completed, but no sooner than completion of the construction 
        of the remedial action, provided that the performing party is 
        entitled to all interest (prejudgment and post judgment, 
        whether recovered from a party or earned in a site account) 
        that has accrued on money recovered by the United States from 
        other parties for such work at the time construction of the 
        remedy is completed.
            ``(6) Financial controls on reimbursement.--The 
        Administrator shall require that all claims for reimbursement 
        be supported by--
                    ``(A) documentation of actual costs incurred; and
                    ``(B) sufficient information to enable the 
                Environmental Protection Agency to determine whether 
                such costs were reasonable.
        The Administrator may require independent auditing of any claim 
        for reimbursement.
    ``(r) Funding of Orphan Shares.--From funds available in the Fund 
in any given fiscal year, and without further appropriation action, the 
President shall make reimbursements from the Fund, to eligible parties 
for costs incurred and equitably attributable to orphan shares 
determined pursuant to this section, provided that Fund financing of 
orphan shares shall not exceed $300,000,000 in any fiscal year. 
Reimbursements made under this subsection shall be subject to such 
terms and conditions as the President may prescribe.
    ``(s) Procedures.--The Administrator, after consultation with the 
Attorney General, may promulgate rules (or guidance) of Agency 
organization, procedure, and practices but shall not have additional 
authority, except as specifically set forth in this section, to 
promulgate rules or publish guidance to restrict the allocator's 
discretion in the conduct of the allocation.
    ``(t) Role of Federal Agencies.--Federal departments, agencies, or 
instrumentalities that are identified as potentially responsible 
parties shall be subject to, and be entitled to the benefits of, the 
allocation process provided by this section to the same extent as any 
other party.
    ``(u) Representation of the United States.--The Administrator and 
the Attorney General shall be entitled to review all documents and 
participate in any phase of the allocation proceeding.
    ``(v) Annual Report.--The President shall report annually to 
Congress on the administration of the allocation scheme under this 
section, and provide information comparing allocation results with 
actual settlements at multiparty facilities.
    ``(w) Savings Provisions.--Nothing in this section shall in any way 
limit or affect the President's authority to exercise the powers 
conferred by section 103, 104, 105, 106, or 122 of this title, or to 
commence an action against a party where there is a contemporaneous 
filing of a judicial consent decree resolving that party's liability; 
or to file a proof of claim or take other action in a proceeding under 
title 11 of the United States Code. The procedures established in this 
section shall not be construed to modify or affect in any way the 
principles of retroactive, strict, joint and several liability under 
this title. Nothing in this section shall limit or affect--
            ``(1) the Administrator's obligation to perform an 
        allocation for facilities that have been the subject of partial 
        or expedited settlements;
            ``(2) the ability of a potentially responsible party at a 
        facility to resolve its liability to the United States or other 
        parties at any time before initiation or completion of the 
        allocation process;
            ``(3) the validity, enforceability, finality, or merits of 
        any judicial or administrative order, judgment, or decree that 
        is issued, signed, lodged, or entered with respect to liability 
        under this Act or that authorizes modification of any such 
        order, judgment or decree; or
            ``(4) the validity, enforceability, finality or merits of 
        any preexisting contract or agreement relating to any 
        allocation of responsibility or any sharing of response costs 
        under this Act.''.

                                 <all>

HR 4351 IH----2
HR 4351 IH----3
HR 4351 IH----4
```