I

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.

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.

4 This Act may be cited as the ‘‘Superfund Liability

5 Allocation Act of 1994’’.
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1 SEC. 2. ALLOCATION PROCEDURES.

2 The Comprehensive Environmental Response, Com3 pensation and Liability Act of 1980 (Superfund) is

4 amended by inserting after section 126 the following new

5 section:

6 ‘‘SEC. 127. ALLOCATION AT MULTIPARTY FACILITIES.

7 ‘‘(a) SCOPE.—

8 ‘‘(1) POST-INTRODUCTION RODS.—For each

9 non-federally owned facility listed on the National

10 Priorities List involving 2 or more potentially re11 sponsible parties for which the President selects a

12 remedial action on or after February 3, 1994, the

13 Administrator shall initiate the allocation process

14 under this section. This paragraph shall not apply to

15 response actions selected prior to such date.

16 ‘‘(2) PRE-INTRODUCTION RODS.—For each non17 federally owned facility listed on the National Prior18 ities List involving 2 or more potentially responsible

19 parties, for any remedial action selected by the

20 President before February 3, 1994, the Adminis21 trator shall initiate the allocation process under this

22 section, if requested to do so by a potentially respon23 sible party which has resolved its liability to the

24 United States with respect to the remedial action or

25 which is performing the remedial action pursuant to

26 an order issued under section 106(a).
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1 ‘‘(3) OTHER FACILITIES.—The Administrator,

2 as the Administrator deems appropriate, may initi3 ate the allocation process under this section for any

4 facility other than a facility referred to in paragraph

5 (1) or (2) involving 2 or more potentially responsible

6 parties.

7 ‘‘(4) EXCLUDED FACILITIES.—The allocation

8 process under this section shall not apply to any of

9 the following:

10 ‘‘(A) A facility for which there has been a

11 final settlement, decree, or order that deter12 mines all liability or allocated shares of all po13 tentially responsible parties.

14 ‘‘(B) A facility for which the response ac15 tion is being carried out by a State pursuant to

16 the authority of this Act.

17 ‘‘(C) A facility at which all of the poten18 tially responsible parties are facility owners or

19 operators.

20 ‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An allo21 cation under this section, shall apply to all remedial

22 actions selected by the President for a facility on or

23 after February 3, 1994 (but not to those remedial

24 actions described in paragraph (2)), unless the allo-
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1 cator determines that the allocation should address

2 only one or more of such remedial actions.

3 ‘‘(6) MULTIPLE FACILITIES.—An allocation

4 under this section may address more than 1 facility

5 where appropriate. Where appropriate, the Adminis6 trator may combine allocations performed pursuant

7 to this subsection for separate remedial actions at

8 the same facility, or for different facilities.

9 ‘‘(7) EFFECT OF ALLOCATION.—An allocation

10 performed pursuant to paragraph (2) or (3) of this

11 section shall not be construed to require—

12 ‘‘(A) payment of an orphan share pursuant

13 to this section; or

14 ‘‘(B) the conferral of reimbursement rights

15 pursuant to this section.

16 ‘‘(8) SETTLEMENT OFFERS AFTER COMMENCE17 MENT OF LITIGATION.—The provisions of this sec18 tion shall not apply to any offer of settlement made

19 after expiration of the moratorium period under sub20 section (b).

21 ‘‘(b) MORATORIUM ON COMMENCEMENT OR CON22 TINUATION OF SUITS.—

23 ‘‘(1) MORATORIUM ON COMMENCEMENT.—No

24 person may assert any claim pursuant to section 107

25 of this Act or commence any civil action seeking re-
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1 covery of any response costs in connection with a re2 sponse action for which an allocation is required

3 under subsection (a)(1) or (2), or for which the Ad4 ministrator has initiated an allocation under sub5 section (a)(3), until 90 days after issuance of the

6 allocator’s report under subsections (h) or (m),

7 whichever is later.

8 ‘‘(2) STAY OF EXISTING ACTIONS.—If a claim

9 under section 107 of this Act or an action seeking

10 recovery of response costs in connection with a re11 sponse action for which an allocation is to be per12 formed under this section is pending—

13 ‘‘(A) upon the date of enactment of the

14 Superfund Reform Act of 1994, or

15 ‘‘(B) upon initiation of an allocation,

16 the action or claim shall be stayed until 90 days

17 after the issuance of the allocator’s report, unless

18 the court determines that a stay will result in mani19 fest injustice.

20 ‘‘(3) STATUTE OF LIMITATIONS.—Any applica21 ble limitations period with respect to a cause of ac22 tion subject to paragraph (1) shall be tolled from the

23 earlier of the following until 180 days after the allo24 cation report required by this section has been is25 sued by the allocator:
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1 ‘‘(A) The date of listing of the facility on

2 the National Priorities List.

3 ‘‘(B) The commencement of the allocation

4 process pursuant to this section.

5 ‘‘(c) COMMENCEMENT OF ALLOCATION.—

6 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa7 cilities subject to this section, the Administrator

8 shall, as soon as practicable, but not later than 60

9 days after the commencement of the remedial inves10 tigation, initiate a thorough investigation and search

11 for all potentially responsible parties, using his au12 thorities under section 104. Any person may submit

13 information to the Administrator concerning any po14 tentially responsible party at the facility, and the

15 Administrator shall consider such information in

16 carrying out the responsible party search.

17 ‘‘(2) NOTIFICATION OF DE MINIMIS PARTIES.—

18 As soon as practicable after receipt of sufficient in19 formation, but not more than 12 months after the

20 commencement of the remedial investigation, the

21 Administrator shall take each of the following

22 actions:

23 ‘‘(A) The Administrator shall notify any

24 potentially responsible party who the Adminis25 trator determines is eligible for an expedited
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1 final settlement in accordance with section

2 122(g)(1)(A) of its eligibility, based on informa3 tion available to the Administrator at the time

4 the determination is made.

5 ‘‘(B) The Administrator shall submit a

6 written settlement offer to each party notified

7 under subparagraph (A) no later than 60 days

8 after such notification.

9 ‘‘(3) PRELIMINARY NOTICE TO OTHER PAR10 TIES.—As soon as practicable after receipt of suffi11 cient information, but not later than 18 months

12 after commencement of the remedial investigation,

13 the Administrator shall—

14 ‘‘(A) notify any party not previously noti15 fied under paragraph (2) who the Adminis16 trator determines is eligible for an expedited

17 final settlement in accordance with section

18 122(g)(1)(A) of its eligibility, based on informa19 tion available to the Administrator at the time

20 the determination is made and submit a written

21 settlement offer to each party notified pursuant

22 to this subparagraph no later than 60 days

23 after such notification;
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1 ‘‘(B) issue a list of all potentially respon2 sible parties preliminarily identified by the Ad3 ministrator to all such parties;

4 ‘‘(C) notify the public, in accordance with

5 section 117(d), of the list of potentially respon6 sible parties identified pursuant to subpara7 graphs (A) and (B) by the Administrator; and

8 ‘‘(D) make available all responses to infor9 mation requests, as well as other relevant infor10 mation concerning the facility and potentially

11 responsible parties, to the notified parties, to

12 the extent it is available to the Administrator.

13 The Administrator shall not make available any

14 privileged or confidential information, except as

15 otherwise authorized by law.

16 The Administrator shall take the actions specified in

17 this paragraph within 9 months after the date of en18 actment of this section for all facilities eligible for

19 allocation under subsection (a)(1) or (a)(2) for

20 which the responsible party search required by a

21 paragraph (1) was substantially complete prior to

22 the date of the enactment of this section.

23 ‘‘(4) STATUS OF PARTIES.—At the time of pro24 posing the list of potentially responsible parties

25 under paragraph (3), the Administrator shall—
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1 ‘‘(A) identify parties that are eligible for

2 expedited settlement pursuant to section

3 122(g);

4 ‘‘(B) identify parties who are not eligible

5 for such expedited settlement; or

6 ‘‘(C) determine that there is insufficient

7 information to ascertain whether or not the

8 party is entitled to such expedited settlement.

9 ‘‘(5) NOMINATION OF PARTIES.—(A) For 60

10 days after information has been made available pur11 suant to paragraph (3), the parties identified by the

12 Administrator and members of the affected commu13 nity shall have the opportunity to identify and nomi14 nate additional potentially responsible parties or oth15 erwise provide information relevant to the facility or

16 such potentially responsible parties. This period may

17 be extended by the Administrator for an additional

18 30 days upon request of any person.

19 ‘‘(B) Any proposal for the addition of any po20 tentially responsible party shall be supported by full

21 disclosure to the Administrator of all available infor22 mation concerning that party’s liability and con23 tribution of hazardous substances to the site.

24 ‘‘(6) LIST OF ALLOCATION PARTIES.—(A)

25 Within 60 days after the end of the period specified
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1 in paragraph (5)(A) for the proposed additional par2 ties, the Administrator shall—

3 ‘‘(i) issue a list of parties subject to the al4 location process (hereinafter referred to in this

5 section as the ‘allocation parties’);

6 ‘‘(ii) identify in writing, as to each of the

7 proposed additional parties, which parties the

8 Administrator has determined, in the Adminis9 trator’s sole discretion:

10 ‘‘(I) to be eligible for expedited settle11 ment pursuant to section 122(g),

12 ‘‘(II) not to be eligible for such expe13 dited settlement, and

14 ‘‘(III) for whom insufficient informa15 tion exists to determine whether or not the

16 party is eligible for such expedited settle17 ment; and

18 ‘‘(iii) identify (in writing supported by

19 brief explanation) those parties as to which the

20 Administrator has determined, in the Adminis21 trator’s sole discretion, that there is an inad22 equate basis in law or fact to determine that

23 the party is potentially liable.

24 For each party identified under clause (iii), the Ad25 ministrator shall further identify whether that party
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1 if liable, would be eligible for an expedited settle2 ment.

3 ‘‘(B) At the time of issuance of the list of par4 ties provided for in subparagraph (A), the Adminis5 trator shall provide the potentially responsible par6 ties who received notice under this paragraph with

7 a list of neutral parties who are not employees of the

8 United States and who the Administrator deter9 mines, in the Administrator’s sole discretion, are

10 qualified to perform an allocation at the facility.

11 ‘‘(C) De minimis parties the Administrator

12 identifies as potentially liable but entitled to expe13 dited settlement pursuant to this section, shall not

14 be subject to, or assigned a share in, the allocation

15 (except to the extent required to determine the or16 phan share pursuant to subsection (h)), unless that

17 party fails to reach an agreement with the President

18 on settlement terms within 30 days after the offer.

19 ‘‘(D) If the Administrator determines that there

20 is an inadequate basis in law or fact to conclude that

21 a party is liable based on the information presented

22 by the nominating party or otherwise available to

23 the Administrator, and if the Administrator has de24 termined the party to be eligible for an expedited

25 settlement, the party shall not be subject to, and
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1 shall not be assigned a share in, the allocation. With

2 respect to all other parties, the Administrator’s de3 termination shall be accorded deference by the allo4 cator. For such parties the allocator shall consider

5 the Administrator’s determination together with the

6 allocation factors listed in subsection (h)(2).

7 ‘‘(E) The Administrator’s determinations for

8 purposes of this subsection shall not be subject to

9 judicial review, nor shall any determination or expla10 nation provided for purposes of the allocation be ad11 missible for any purpose in an action commenced by

12 the United States against the party that is the sub13 ject of the determination or any other party.

14 ‘‘(F) The allocator may assign a zero share to

15 any party the allocator deems should receive such a

16 share in consideration of the allocation factors in17 cluding the Administrator’s determinations under

18 subparagraph (C).

19 ‘‘(G) If a party is included in the allocation

20 pursuant to the nomination of a potentially respon21 sible party pursuant to subsection (c)(5), but as22 signed a zero share by the allocator, that party’s

23 costs of participating in the allocation (including

24 reasonable attorneys’ fees) shall be borne by the
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1 party who proposed the addition of the party to the

2 allocation.

3 ‘‘(d) DE MINIMIS SETTLEMENT OFFER.—(1) Within

4 30 days after the final list of parties is issued pursuant

5 to paragraph (6) of subsection (c), the Administrator shall

6 submit a written settlement offer to any party identified

7 as a potentially responsible party pursuant to this section

8 who the Administrator has determined to be eligible for

9 an expedited final settlement in accordance with section

10 122(g)(1)(A), and who has not entered into a settlement

11 with the United States regarding the matters being ad12 dressed by the allocation.

13 ‘‘(2) The President shall not include any premia pur14 suant to section 122(g) in a settlement offer made pursu15 ant to paragraph (1) more than 60 days after the date

16 the offer is required to be made pursuant to paragraph

17 (1) to a party that is a small business.

18 ‘‘(e) SELECTION OF ALLOCATOR.—

19 ‘‘(1) PROPOSAL OF ADDITIONAL CAN20 DIDATES.—Any party identified by the Adminis21 trator under subsection (c) may propose any person

22 whom such party deems qualified for selection as an

23 allocator in addition to those proposed from the list

24 provided under subsection (c)(6)(B).
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1 ‘‘(2) SELECTION OF ALLOCATOR BY ALLOCA2 TION PARTIES.—(A) The allocation parties shall se3 lect an allocator from the list of allocators proposed

4 by the Administrator or under paragraph (1) by the

5 following voting method with each allocation party

6 having a single vote:

7 ‘‘(i) Each allocation party and the Admin8 istrator voting for the identified but insolvent or

9 defunct parties shall numerically rank the indi10 viduals on the final list of proposed allocators,

11 with a ranking of 1 indicating first preference,

12 and forward its vote to the Administrator with13 in 30 days of the issuance of the final list of

14 allocators pursuant to subsection (c)(6)(B).

15 ‘‘(ii) The proposed allocator who receives

16 the lowest combined numerical score, taking

17 into account all votes submitted to the Adminis18 trator pursuant to subparagraph (i), and who

19 agrees to serve as allocator, shall be determined

20 to be the allocator.

21 The Administrator may cast the votes of identified

22 but insolvent or defunct parties.

23 ‘‘(3) PEREMPTORY STRIKE.—The Adminis24 trator may reject any allocator selected by the allo25 cation parties if the proposed allocator is not on the
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1 list provided under paragraph (3)(D) of subsection

2 (c). In the case of any such rejection, the allocation

3 parties shall select the allocator in order of numeri4 cal ranking in accordance with this subsection.

5 ‘‘(4) SELECTION OF ALLOCATOR BY EPA.—If

6 the allocation parties do not select an allocator pur7 suant to paragraph (3) within 30 days after receipt

8 of the list provided under paragraph (2), the Admin9 istrator shall select the allocator.

10 ‘‘(f) CONTRACT.—Following selection of the allocator,

11 the Administrator shall enter into a contract with the se12 lected allocator for the provision of allocation services, and

13 immediately make available all responses to information

14 requests, as well as other relevant information concerning

15 the facility and potentially responsible parties, to the allo16 cator. The Administrator has the authority to use the pro17 curement procedures set forth in section 109(e) to procure

18 the services of a neutral professional for use in conducting

19 allocation procedures under this section, whether or not

20 the neutral professional actually conducts such allocation

21 procedures.

22 ‘‘(g) POTENTIALLY RESPONSIBLE PARTY SETTLE23 MENT.—At any time prior to the issuance of an allocation

24 report as described in subsection (h), any group of poten25 tially responsible parties may submit to the allocator a pri-
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1 vate allocation for the remedial action or operable unit.

2 If such private allocation meets all of the following cri3 teria, the allocator shall promptly adopt it as the allocation

4 report:

5 ‘‘(1) The private allocation is a binding alloca6 tion of 100 percent of the past, present, and future

7 recoverable costs of the remedial action or operable

8 unit.

9 ‘‘(2) The private allocation does not allocate

10 any share of response costs to any person who is not

11 a signatory to the proposed private allocation or, in

12 the case of any orphan share, unless the United

13 States is a signatory to the proposed private alloca14 tion.

15 ‘‘(3) The signatories to the proposed private al16 location waive their contribution rights with respect

17 to the remedial action or operable unit thereof

18 against all other potentially responsible parties at

19 the facility.

20 ‘‘(h) ALLOCATION DETERMINATION.—

21 ‘‘(1) SETTLEMENT AND ALLOCATION RE22 PORT.—Following issuance of the final list of alloca23 tion parties pursuant to subsection (c)(6)(A)(i), the

24 allocator shall initiate and conduct an allocation

25 process that shall culminate in the issuance of a
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1 written report, with a nonbinding, equitable alloca2 tion of the percentage shares of responsibility of all

3 allocation parties, including the orphan share, for

4 the facility, and provide such report to the allocation

5 parties and the Administrator. The allocator shall

6 provide the report to the allocation parties and the

7 Administrator within 180 days of the issuance of the

8 list of parties pursuant to subsection (c)(6) or the

9 date of the contract for allocation service pursuant

10 to subsection (f), whichever is later. Upon request,

11 for good cause shown, the Administrator may grant

12 the allocator additional time to complete the alloca13 tion, not to exceed 90 days.

14 ‘‘(2) FACTORS IN THE ALLOCATION.—The allo15 cator shall prepare a nonbinding, equitable allocation

16 of percentage shares for the facility based on the fol17 lowing factors:

18 ‘‘(A) The amount of hazardous substances

19 contributed by each allocation party.

20 ‘‘(B) The degree of toxicity of hazardous

21 substances contributed by each allocation party.

22 ‘‘(C) The mobility of hazardous substances

23 contributed by each allocation party.

24 ‘‘(D) The degree of involvement of each al25 location party in the generation, transportation,
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1 treatment, storage, or disposal of the hazardous

2 substance.

3 ‘‘(E) The degree of care exercised by each

4 allocation party with respect to the hazardous

5 substance, taking into account the characteris6 tics of the hazardous substance.

7 ‘‘(F) The cooperation of each allocation

8 party in contributing to the response action and

9 in providing complete and timely information

10 during the allocation process.

11 ‘‘(G) Such other factors that the Adminis12 trator determines are appropriate by published

13 guidance. Any such guidance shall be consistent

14 with this Act and shall be published only after

15 notice and opportunity for public comment.

16 ‘‘(3) CONDUCT OF ALLOCATION PROCESS.—The

17 allocator shall conduct the allocation process and

18 render a decision based solely on the provisions of

19 this section, including the allocation factors specified

20 in paragraph (2). Each party to the allocation shall

21 be afforded an opportunity to be heard (either orally

22 or in writing, at the allocator’s discretion), and an

23 opportunity to comment on a draft allocation report.

24 The allocator shall not be required to respond to

25 comments.
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1 ‘‘(4) IDENTIFICATION OF ORPHAN SHARES.—

2 ‘‘(A) COMPONENTS OF ORPHAN SHARE.—

3 The allocator may determine that a percentage

4 share for the facility is specifically attributable

5 to an orphan share. The orphan share shall

6 consist only of the following:

7 ‘‘(i) Shares attributable to hazardous

8 substances that the allocator determines,

9 on the basis of information presented, to

10 be specifically attributable to identified but

11 insolvent or defunct allocation parties who

12 are not affiliated with any viable allocation

13 party.

14 ‘‘(ii) The difference between the ag15 gregate shares that the allocator deter16 mines, on the basis of the information pre17 sented, is specifically attributable to alloca18 tion parties that are contributors of munic19 ipal solid waste, and the share actually as20 sumed by those parties in any settlements

21 with the United States pursuant to sub22 section 122(g), including the fair market

23 value of in-kind services provided by a

24 municipality.
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1 ‘‘(iii) The difference between the ag2 gregate share that the allocator deter3 mines, on the basis of information pre4 sented, to be specifically attributable to al5 location parties with a limited ability to

6 pay response costs and the share actually

7 assumed by those parties in any settle8 ments with the United States pursuant to

9 subsection 122(g).

10 ‘‘(B) NOT INCLUDED IN ORPHAN SHARE.—

11 Shares attributable to hazardous substances

12 that the allocator cannot attribute to any iden13 tified party shall be distributed among the allo14 cation parties, including the orphan share.

15 ‘‘(i) ANSWERS AND CERTIFICATIONS TO

16 ALLOCATOR’S INFORMATION REQUESTS.—

17 ‘‘(1) SUBPOENAS AND INFORMATION RE18 QUESTS.—Where necessary to assist in determining

19 the allocation of shares, the allocator may request

20 information or documents from any allocation party

21 in accordance with paragraph (2) or (5) of section

22 104(e), and require by subpoena the attendance of

23 persons or the production of documents, or other in24 formation in accordance with section 104(e)(7). Any

25 allocation party to whom a request is directed shall
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1 include in the response a certification by a respon2 sible representative or authorized representative that

3 satisfies the requirement of section 104(e)(3). The

4 allocator may also request the Administrator to uti5 lize the authorities of paragraph (2) and to exercise

6 any information-gathering authority of the Adminis7 trator under this Act.

8 ‘‘(2) POWERS OF THE ALLOCATOR.—In addi9 tion to the information-gathering authority set forth

10 in paragraph (1), the allocator shall have the au11 thority to schedule meetings and require the attend12 ance of allocation parties at such meetings; to re13 quire that allocation parties wishing to present simi14 lar legal or factual positions consolidate their pres15 entations; to obtain or employ support services, in16 cluding secretarial and clerical services, computer

17 support services, and legal and investigative services;

18 and to take any other actions necessary to conduct

19 a fair, efficient, and impartial allocation process.

20 ‘‘(j) CIVIL AND CRIMINAL PENALTIES.—

21 ‘‘(1) CIVIL PENALTIES.—Where the allocator is22 sues an administrative subpoena or information re23 quest pursuant to subsection (i), a party who unrea24 sonably fails to comply with the subpoena or request
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1 shall be subject to a civil penalty not to exceed

2 $25,000 for each day of noncompliance.

3 ‘‘(2) ENFORCEMENT.—The allocator may seek

4 enforcement of an administrative subpoena or infor5 mation request pursuant to subsection (i)(1), and

6 shall seek such enforcement by requesting that the

7 Attorney General commence an action to enforce the

8 subpoena or request. The Attorney General, within

9 30 days after receiving such request from the allo10 cator, shall—

11 ‘‘(A) notify the allocator that the Attorney

12 General will commence an action to enforce the

13 subpoena or information request;

14 ‘‘(B) notify the allocator that the Attorney

15 General will not seek enforcement of the sub16 poena or request because the subpoena or re17 quest is barred by law or would result in annoy18 ance, embarrassment, oppression, or undue bur19 den or expense to the party to whom it was

20 issued;

21 ‘‘(C) notify the allocator that the Attorney

22 General has insufficient information on which

23 to determine whether an enforcement action is

24 appropriate.
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1 ‘‘(3) FAILURE OF ATTORNEY GENERAL TO RE2 SPOND.—If the Attorney General fails to provide

3 any response to the allocator within 30 days of a re4 quest for enforcement of a subpoena or information

5 request, the allocator may retain counsel to com6 mence a civil action to enforce the subpoena or in7 formation request.

8 ‘‘(4) PENALTY.—If the Attorney General or al9 locator prevails in an action to enforce an allocator’s

10 subpoena or information request, the party who

11 failed to comply shall be subject to a sanction that

12 may include civil penalties as provided in subpara13 graph (B). The court shall require such party to pay

14 the reasonable expenses, including attorney’s fees,

15 caused by the failure to comply, unless the court

16 finds that the failure was substantially justified or

17 that other circumstances make an award of expenses

18 unjust.

19 ‘‘(5) CRIMINAL.—Any person who knowingly

20 makes any false material statement or representa21 tion in the response to an allocator’s information re22 quest or subpoena issued pursuant to subsection (i)

23 shall be deemed to have made a false statement on

24 a matter within the jurisdiction of the United States

25 within the meaning of 18 U.S.C. 1001.
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1 ‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIALITY.—

2 ‘‘(1) DOCUMENT REPOSITORY.—The allocator

3 shall establish and maintain a document repository

4 containing copies of all documents and informa5 tion—

6 ‘‘(A) provided by the Administrator pursu7 ant to this section,

8 ‘‘(B) provided or generated by the alloca9 tion parties, or

10 ‘‘(C) generated by the allocator during the

11 allocation.

12 The documents and information in the document re13 pository shall be available only to the parties to the

14 allocation process for review and copying at their

15 own expense, subject to the confidentiality provisions

16 of paragraph (2). The Administrator shall provide to

17 the allocator all information obtained under section

18 104(e), including information entitled to protection

19 under section 1905 of title 18, United States Code,

20 or exempt from disclosure pursuant to section

21 552(a) of title 5, United States Code. An allocation

22 party shall not assert any privilege as a basis for

23 withholding any information from the allocator.

24 ‘‘(2) CONFIDENTIALITY.—All documents and

25 materials submitted to the allocator or placed in the
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1 document repository, together with the record of any

2 information generated or obtained during the alloca3 tion process, shall be confidential. The allocator,

4 each allocation party, the Administrator, and the At5 torney General shall maintain such documents and

6 materials, together with the record of any informa7 tion generated or obtained during the allocation, as

8 confidential and are prohibited from using any such

9 material in any other matter or proceeding, and

10 shall not be subject to disclosure under section 552

11 of title 5. Such material shall not be discoverable or

12 admissible in any other Federal, State, or local judi13 cial, administrative, or legislative proceedings, ex14 cept—

15 ‘‘(A) a new allocation pursuant to sub16 sections (m) or (n) for the same remedial action

17 or operable unit, or

18 ‘‘(B) an initial allocation for a different

19 remedial action or operable unit at the same

20 facility.

21 Nothing in this section shall be construed to author22 ize any person, including the allocator, to withhold

23 any documents or information from Congress, or any

24 duly authorized Committee thereof, or limit in any

25 manner the right of Congress, or any duly author-
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1 ized Committee thereof, to obtain such documents or

2 information.

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 which provided it, otherwise discover8 able or admissible, then such original document, if

9 subsequently sought from such party, shall remain

10 so. If a fact generated or obtained during the alloca11 tion was, in the hands of a witness, otherwise discov12 erable or admissible, then such fact, if subsequently

13 sought from such other party, shall remain so.

14 ‘‘(4) NO WAIVER OF PRIVILEGE.—The submis15 sion of, documents, or information pursuant to the

16 allocation process shall not be deemed to be a waiver

17 of any privilege, applicable to such documents or in18 formation under any Federal or State law or rule of

19 discovery or evidence.

20 ‘‘(5) PROCEDURE WHEN DISCOVERY IS

21 SOUGHT.—Any person, including the United States

22 and any Federal, State or local agency, department

23 or instrumentality, receiving any request for a state24 ment, document, or material submitted, or for the

25 record of any allocation proceeding, shall promptly
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1 notify the person who originally submitted such item

2 and shall provide such submitting person the oppor3 tunity to assert and defend the confidentiality of

4 such item. No person shall release or provide a copy

5 of the item to any person not a party to such alloca6 tion, except as may be required by court order.

7 ‘‘(6) CIVIL PENALTY FOR VIOLATION OF CON8 FIDENTIALITY.—Any person who fails to maintain

9 the confidentiality of any statements, documents or

10 information generated or obtained during an alloca11 tion proceeding, or who releases any such informa12 tion in violation of this section shall be subject to

13 civil penalties of up to $25,000 per violation. Such

14 penalties may be sought in a civil action initiated by

15 the Attorney General on behalf of the United States,

16 or any allocation party adversely affected by the fail17 ure to maintain confidentiality.

18 ‘‘(l) REJECTION OF ALLOCATOR’S REPORT.—The

19 Administrator and the Attorney General of the United

20 States may reject the allocator’s report if they jointly de21 termine that—

22 ‘‘(1) no rational interpretation of the facts be23 fore the allocator, in light of the factors required to

24 be considered, would form a reasonable basis for the

25 shares assigned to the parties;
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1 ‘‘(2) the allocation was affected by bias, fraud,

2 or unlawful conduct; or

3 ‘‘(3) the allocation was substantially and di4 rectly affected by procedural error.

5 The allocator’s report may not be rejected after the United

6 States has accepted a settlement offer (excluding de

7 minimis or other expedited settlements) based on the allo8 cation. The Administrator and the Attorney General shall

9 seek to make any such determination within 180 days

10 after the receipt of the first offer based on the allocator’s

11 report. The determinations of the Administrator and the

12 Attorney General under this subsection shall not be judi13 cially reviewable. No such determination may be delegated

14 to any officer or employee of the Environmental Protection

15 Agency or the Department of Justice below the level of

16 an Assistant Secretary or Acting Assistant Secretary with

17 authority for implementing this Act at the Environmental

18 Protection Agency or the Department of Justice.

19 ‘‘(m) SECOND ALLOCATION.—If the United States

20 rejects an allocator’s report, the parties shall select a new

21 allocator pursuant to subsection (e) to perform, on an ex22 pedited basis, a new allocation based on the same record

23 available to the first allocator. The moratorium on com24 mencement of litigation and tolling of statutes of limita25 tion set forth in subsection (b) shall be extended until 90
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1 days after the issuance of the second allocation report. If

2 the United States rejects the second allocation the Presi3 dent may, following the expiration of the moratorium on

4 commencement of litigation, commence an action under

5 section 107.

6 ‘‘(n) NEW INFORMATION.—Any settling party, in7 cluding the United States, may seek a new allocation pur8 suant to subsection (h), where that party presents clear

9 and convincing information or the United States otherwise

10 determines on the basis of clear and convincing informa11 tion that—

12 ‘‘(1) the allocator did not have information con13 cerning 35 percent or more of the materials contain14 ing hazardous substances at the facility, and that

15 this information has been discovered subsequent to

16 the issuance of the allocator’s report; or

17 ‘‘(2) the allocator did not have information con18 cerning a person not subject to the allocation who

19 contributed 15 percent or more of materials contain20 ing hazardous substances at the facility, and that

21 this information has been discovered subsequent to

22 the issuance of the allocator’s report.

23 Determinations by the United States pursuant to this sub24 section shall not be subject to judicial review.

25 ‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—
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1 ‘‘(1) OBLIGATIONS OF THE UNITED STATES.—

2 If, within 90 days after issuance of the alloctor’s re3 port, an allocation party (A) makes a written offer

4 to settle with respect to the response action based on

5 the percentage share specified by the allocator and

6 on the additional terms and conditions of settlement

7 (other than the percentage share of liability) that

8 are acceptable to the President, and (B) is not in de9 fault on any information requests under this Act,

10 then the President shall not seek a higher percent11 age share of response costs other than the premia

12 authorized by this section, unless the President has

13 rejected the offer on a basis other than the percent14 age share of liability, or unless the Administrator

15 and the Attorney General have rejected the alloca16 tion report pursuant to subsection (l).

17 ‘‘(2) EXPLANATION OF REFUSAL TO SETTLE.—

18 If the Administrator and the Attorney General de19 termine not to settle on the basis of the allocation,

20 they shall provide the allocation parties and mem21 bers of the affected community with a written expla22 nation of the Administrator’s determination.

23 ‘‘(3) SETTLEMENT PROVISIONS.—Settlements

24 based on allocated shares shall include each of the

25 following:
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1 ‘‘(A) A waiver of contribution rights

2 against all parties who are potentially respon3 sible parties for the response action, as well as

4 a waiver of any rights to challenge any settle5 ment the President enters into with any other

6 potentially responsible party.

7 ‘‘(B) Covenants not to sue, consistent with

8 section 122(f), and provisions regarding per9 formance or adequate assurance of performance

10 of response actions addressed in the settlement.

11 ‘‘(C) A premium determined on a site spe12 cific basis and subject to the limitations set

13 forth in paragraph (4), that compensates for

14 the United States litigation risk with respect to

15 potentially responsible parties who have not re16 solved their liability to the United States, ex17 cept that no such premium shall apply if all

18 parties settle or the settlement covers 100 per19 cent of response costs.

20 ‘‘(D) Contribution protection, consistent

21 with section 113(f), regarding matters ad22 dressed in the settlement. Such settlement does

23 not discharge any of the other potentially re24 sponsible parties unless its terms so provide,
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1 but it reduces the potential liability of the oth2 ers by the amount of the settlement.

3 ‘‘(E) Provisions through which the settling

4 parties shall receive reimbursement from the

5 Fund for any response costs incurred by such

6 parties in excess of the aggregate of their allo7 cated share and any premia required by the set8 tlement. Such right to reimbursement shall not

9 be contingent on the United States recovery of

10 response costs from any responsible person not

11 a party to any settlement with the United

12 States.

13 ‘‘(4) The premia authorized by paragraph

14 (3)(C) for litigation risk shall not exceed the follow15 ing:

16 ‘‘(A) Five percent of the total costs as17 sumed by a settling party, where settlements

18 (and any orphan share identified by the allo19 cator) account for 80 percent or more of re20 sponsibility at the facility.

21 ‘‘(B) Ten percent of the total costs as22 sumed by a settling party, where settlements

23 (and any orphan share identified by the allo24 cator) account for more than 60 percent and
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1 less than 80 percent of responsibility at the

2 facility.

3 ‘‘(C) Fifteen percent of the total costs as4 sumed by a settling party, where settlements

5 (and any orphan share identified by the allo6 cator) account for more than 40 percent and

7 less than 60 percent of responsibility at the

8 facility.

9 ‘‘(D) Twenty percent of the total costs as10 sumed by a settling party, where settlements

11 (and any orphan share identified by the allo12 cator) account for 40 percent or less of respon13 sibility at the facility.

14 The Administrator shall have authority to promul15 gate regulations to modify the premia percentages

16 established in this subsection. The Administrator

17 may not propose a rule before the date 36 months

18 after the enactment of this section, and no such rule

19 may take effect before the date 48 months after the

20 enactment of this section. Such rule must be based

21 upon an administrative record establishing that such

22 modification is necessary to reflect actual experience

23 regarding the litigation risk faced by the United

24 States in proceeding against nonsettling parties

25 under this section.
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1 ‘‘(5) AUTHORIZATION OF REIMBURSEMENT.—

2 In any settlement in which a party agrees to per3 form response work in excess of its share, the Ad4 ministrator shall have authority to carry out his

5 duty to reimburse settling parties under this section

6 pursuant to such reasonable procedures as the Ad7 ministrator may prescribe.

8 ‘‘(6) FINANCIAL CONTROLS ON REIMBURSE9 MENT.—The Administrator shall require all claims

10 for reimbursement to be supported by—

11 ‘‘(A) documentation of actual costs in12 curred; and

13 ‘‘(B) sufficient information to enable the

14 Administrator to determine whether such costs

15 were reasonable.

16 The Administrator may require independent auditing

17 of any claim for reimbursement.

18 ‘‘(p) POST-SETTLEMENT LITIGATION.—

19 ‘‘(1) IN GENERAL.—The United States may

20 commence an action under section 107 against any

21 person liable under that section who has not resolved

22 its liability to the United States following allocation,

23 on or after 90 days following issuance of the

24 allocator’s report. In any such action, such person

25 shall be liable in accordance with section 107 for all
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1 response costs not recovered through settlements

2 with other persons. Such recoverable costs shall in3 clude any federally funded orphan share identified in

4 accordance with subsection (h), but shall not include

5 any shares allocated to Federal, State, or local gov6 ernmental agencies, departments, or instrumental7 ities. Defendants in any such action may implead

8 only allocation parties who did not resolve their li9 ability to the United States. The Administrator and

10 the Attorney General shall issue guidelines to ensure

11 that the relief sought against de minimis parties

12 under principles of joint and several liability will not

13 be grossly disproportionate to their contribution to

14 the facility. The application of such guidelines is

15 committed to the discretion of the Administrator

16 and the Attorney General.

17 ‘‘(2) CERTIFICATION.—In commencing any ac18 tion under section 107 following allocation, the At19 torney General must certify, in the complaint, that

20 the United States has been unable to reach a settle21 ment that would be in the best interests of the Unit22 ed States. This certification shall not be subject to

23 judicial review.

24 ‘‘(3) DEFENDANTS.—No person may commence

25 an action under section 107 or otherwise seek con-
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1 tribution against any person who was not identified

2 as an allocation party pursuant to subsection (c) or

3 subsequently identified as a potentially liable party

4 under subsection (n) (relating to new information).

5 ‘‘(4) ADMISSIBILITY OF ALLOCATOR’S RE6 PORT.—The allocator’s report shall not be admissi7 ble in any court for any purpose, except as set forth

8 in this section. The allocator’s report, subject to the

9 rules and discretion of the court, may be admissible

10 solely for the purpose of assisting the court in mak11 ing an equitable allocation of response costs among

12 the relative shares of nonsettling liable parties.

13 ‘‘(5) COSTS OF ALLOCATION PROCEDURE ON

14 ORPHAN SHARE.—

15 ‘‘(A) INCLUDED AS COSTS OF RE16 SPONSE.—The costs of implementing the alloca17 tion procedure set forth in this section, includ18 ing reasonable fees and expenses of the allo19 cator, shall be considered necessary costs of re20 sponse for purposes of this Act.

21 ‘‘(B) ORPHAN SHARE.—The costs attrib22 utable to any funding of orphan shares identi23 fied by the allocator pursuant to subsection

24 (e)(4) also shall be considered necessary costs

25 of response for purposes of this Act, and shall
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1 be recoverable from liable parties who do not

2 resolve their liability on the basis of the alloca3 tion.

4 ‘‘(6) REJECTION OF SHARE DETERMINATION.—

5 In any action by the United States under this title,

6 if the United States has rejected an offer of settle7 ment that is consistent with subsection (o) and that

8 was presented to the United States prior to the com9 mencement of the action, the offeror shall be entitled

10 to recover from the United States the offeror’s rea11 sonable costs of defending the action after the mak12 ing of the offer (including reasonable attorneys’ fees)

13 if the ultimate resolution of liability or allocation of

14 costs with respect to the offeror (taking into account

15 all settlements and reimbursements with respect to

16 the facility other than those attributable to insur17 ance or indemnification), is as, or more, favorable to

18 the offeror than the offer based on the allocation.

19 ‘‘(q) REIMBURSEMENT FOR UAO PERFORMANCE.—

20 ‘‘(1) REIMBURSEMENT.—Parties who satisfac21 torily perform work under an administrative order

22 issued under section 106(a) with respect to a reme23 dial action for which an allocation is required by

24 subsection (a)(1), shall be entitled to reimbursement

25 for the reasonable and necessary costs of work they
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1 perform in excess of the share assigned to them in

2 the allocation in accordance with the provisions of

3 this section, provided that the allocation report is

4 not rejected by the United States and, that, at the

5 end of the moratorium following the allocation, the

6 performing party, in consideration of such reim7 bursement—

8 ‘‘(A) agrees not to contest liability for all

9 response costs not inconsistent with the Na10 tional Contingency Plan to the extent of the al11 located share;

12 ‘‘(B) receives no covenant not to sue;

13 ‘‘(C) agrees that its reimbursement shall

14 be reduced by an amount equal to the maxi15 mum litigation risk premium provided for in

16 subsection (o)(4) based on the total allocated

17 shares of the allocation parties who have not

18 reached settlements with the United States by

19 the end of the moratorium on commencement of

20 actions provided in subsection (b);

21 ‘‘(D) waives contribution rights against all

22 parties who are potentially responsible parties

23 for the response action, as well as waives any

24 rights to challenge any settlement the President
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1 enters into with any other potentially respon2 sible party.

3 ‘‘(2) OFFSET.—Any and all reimbursement pro4 vided to a performing party for work in excess of its

5 share is subject to equitable offset or reduction by

6 the Administrator upon a finding of a failure to per7 form any aspect of the remedy in a proper and time8 ly manner.

9 ‘‘(3) TIME OF PAYMENT.—Any and all reim10 bursement to a performing party for work in excess

11 of its share shall be paid after work is completed,

12 but no sooner than completion of the construction of

13 the remedial action.

14 ‘‘(4) LIMIT ON ORPHAN SHARE FUNDING.—The

15 amount of orphan share funding available to the

16 performing party shall be further limited as follows:

17 ‘‘(A) Performing parties who fully waive

18 their right to challenge remedy selection at the

19 end of the moratorium following allocation shall

20 be entitled to full reimbursement of costs in ex21 cess of the party’s share and attributable by the

22 allocator to the orphan share paid in nominal

23 dollars after the work is completed, but no

24 sooner than completion of the construction of

25 the remedial action.
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1 ‘‘(B) Performing parties who retain their

2 right to challenge the remedy shall be reim3 bursed for 90 percent of orphan share funding,

4 paid in nominal dollars after the work is com5 pleted, but no sooner than completion of the

6 construction of the remedial action, unless the

7 orphan share is less than 20 percent of respon8 sibility at the site, in which case such parties

9 shall be reimbursed only 80 percent of the or10 phan share.

11 For purposes of this subsection ‘nominal dollar’

12 means actual dollars spent by the performing party,

13 without increase for interest or inflation.

14 ‘‘(5) INTEREST.—Reimbursement for work in

15 excess of the performing party’s allocated share but

16 that is not attributable to the orphan share shall be

17 paid in nominal dollars after work is completed, but

18 no sooner than completion of the construction of the

19 remedial action, provided that the performing party

20 is entitled to all interest (prejudgment and post

21 judgment, whether recovered from a party or earned

22 in a site account) that has accrued on money recov23 ered by the United States from other parties for

24 such work at the time construction of the remedy is

25 completed.
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1 ‘‘(6) FINANCIAL CONTROLS ON REIMBURSE2 MENT.—The Administrator shall require that all

3 claims for reimbursement be supported by—

4 ‘‘(A) documentation of actual costs in5 curred; and

6 ‘‘(B) sufficient information to enable the

7 Environmental Protection Agency to determine

8 whether such costs were reasonable.

9 The Administrator may require independent auditing

10 of any claim for reimbursement.

11 ‘‘(r) FUNDING OF ORPHAN SHARES.—From funds

12 available in the Fund in any given fiscal year, and without

13 further appropriation action, the President shall make re14 imbursements from the Fund, to eligible parties for costs

15 incurred and equitably attributable to orphan shares de16 termined pursuant to this section, provided that Fund fi17 nancing of orphan shares shall not exceed $300,000,000

18 in any fiscal year. Reimbursements made under this sub19 section shall be subject to such terms and conditions as

20 the President may prescribe.

21 ‘‘(s) PROCEDURES.—The Administrator, after con22 sultation with the Attorney General, may promulgate rules

23 (or guidance) of Agency organization, procedure, and

24 practices but shall not have additional authority, except

25 as specifically set forth in this section, to promulgate rules
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1 or publish guidance to restrict the allocator’s discretion

2 in the conduct of the allocation.

3 ‘‘(t) ROLE OF FEDERAL AGENCIES.—Federal depart4 ments, agencies, or instrumentalities that are identified as

5 potentially responsible parties shall be subject to, and be

6 entitled to the benefits of, the allocation process provided

7 by this section to the same extent as any other party.

8 ‘‘(u) REPRESENTATION OF THE UNITED STATES.—

9 The Administrator and the Attorney General shall be enti10 tled to review all documents and participate in any phase

11 of the allocation proceeding.

12 ‘‘(v) ANNUAL REPORT.—The President shall report

13 annually to Congress on the administration of the alloca14 tion scheme under this section, and provide information

15 comparing allocation results with actual settlements at

16 multiparty facilities.

17 ‘‘(w) SAVINGS PROVISIONS.—Nothing in this section

18 shall in any way limit or affect the President’s authority

19 to exercise the powers conferred by section 103, 104, 105,

20 106, or 122 of this title, or to commence an action against

21 a party where there is a contemporaneous filing of a judi22 cial consent decree resolving that party’s liability; or to

23 file a proof of claim or take other action in a proceeding

24 under title 11 of the United States Code. The procedures

25 established in this section shall not be construed to modify
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1 or affect in any way the principles of retroactive, strict,

2 joint and several liability under this title. Nothing in this

3 section shall limit or affect—

4 ‘‘(1) the Administrator’s obligation to perform

5 an allocation for facilities that have been the subject

6 of partial or expedited settlements;

7 ‘‘(2) the ability of a potentially responsible

8 party at a facility to resolve its liability to the Unit9 ed States or other parties at any time before initi10 ation or completion of the allocation process;

11 ‘‘(3) the validity, enforceability, finality, or mer12 its of any judicial or administrative order, judgment,

13 or decree that is issued, signed, lodged, or entered

14 with respect to liability under this Act or that au15 thorizes modification of any such order, judgment or

16 decree; or

17 ‘‘(4) the validity, enforceability, finality or mer18 its of any preexisting contract or agreement relating

19 to any allocation of responsibility or any sharing of

20 response costs under this Act.’’.

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