IB

103D CONGRESS

2D SESSION H. R. 4916

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 8, 1994

Mr. SWIFT (for himself, Mr. DINGELL, Mr. MINETA, Mr. GIBBONS, Mr. APPLEGATE, and Mr. BOEHLERT) introduced the following bill; which was

referred jointly to the Committees on Energy and Commerce, Public

Works and Transportation, and Ways and Means

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 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 Reform Act

5 of 1994’’.

6 SEC. 2. TABLE OF CONTENTS.

7 The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.
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Sec. 3. References to Comprehensive Environmental Response, Compensation,

and Liability Act of 1980.

TITLE I—COMMUNITY PARTICIPATION AND HUMAN HEALTH

Sec. 101. Public participation.

Sec. 102. Community working groups.

Sec. 103. Hazard ranking system.

Sec. 104. Disease registry and medical care providers.

Sec. 105. Substance profiles.

Sec. 106. Determining health effects.

Sec. 107. Public health at NPL facilities.

Sec. 108. Health studies.

Sec. 109. Distribution of materials to health professionals and medical centers.

Sec. 110. Grant awards, contracts, and community assistance activities.

Sec. 111. Public health recommendations in remedial actions.

Sec. 112. Clarification of ATSDR authority.

Sec. 113. Recruitment and training demonstration program.

Sec. 114. Transition.

TITLE II—STATE ROLES

Sec. 201. Contracts or cooperative agreements with States.

Sec. 202. State cost share.

Sec. 203. Siting.

Sec. 204. The State registry.

Sec. 205. Conforming and miscellaneous amendments.

Sec. 206. Study of authorization of States to carry out Superfund.

Sec. 207. State role at Federal facilities.

TITLE III—VOLUNTARY RESPONSE

Sec. 301. Voluntary response program.

TITLE IV—LIABILITY AND ALLOCATION

Sec. 401. Information gathering and access.

Sec. 402. Compliance with administrative orders.

Sec. 403. Limitations to liability for response costs.

Sec. 404. Liability.

Sec. 405. Civil proceedings.

Sec. 406. Limitations on contribution actions.

Sec. 407. Scope of rulemaking authority.

Sec. 408. Response action contractors.

Sec. 409. Enhancement of settlement authorities.

Sec. 410. Professional services.

Sec. 411. Final convenants.

Sec. 412. Expedited final settlements.

Sec. 413. Allocation procedures.

Sec. 414. Recycling transactions.

TITLE V—REMEDY SELECTION AND CLEANUP STANDARDS

Sec. 501. Cleanup standards.

Sec. 502. Remedy selection.

Sec. 503. Miscellaneous amendments to section 121.

Sec. 504. Response authorities.
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Sec. 505. Removal actions.

Sec. 506. Hazardous substance property use.

Sec. 507. Transition.

TITLE VI—MISCELLANEOUS

Sec. 601. Interagency agreements at mixed ownership and mixed responsibility

facilities.

Sec. 602. Contents of certain deeds.

Sec. 603. Transfers of uncontaminated property.

Sec. 604. Agreements to transfer by deed.

Sec. 605. Alternative or innovative treatment technologies.

Sec. 606. Definitions.

Sec. 607. Response claims procedures.

Sec. 608. Small business ombudsman.

Sec. 609. Consideration of local government cleanup priorities.

Sec. 610. Consistent application among regional offices.

Sec. 611. Study of participants.

Sec. 612. Public comment.

Sec. 613. Certification of environmental training and certification organizations.

Sec. 614. Savings clause.

Sec. 615. Federal entities and facilities.

Sec. 616. Worker training and education grants.

Sec. 617. Report and oversight requirements.

Sec. 618. Remedial technologies.

Sec. 619. Reimbursement to State and local governments.

Sec. 620. Study of small disadvantaged business goals.

Sec. 621. Conforming amendment.

TITLE VII—FUNDING

Sec. 701. Authorization of appropriations.

Sec. 702. Orphan share funding.

Sec. 703. Agency for Toxic Substances and Disease Registry.

Sec. 704. Limitations on research, development, and demonstration programs.

Sec. 705. Authorization of appropriations from general revenues.

Sec. 706. Additional limitations.

Sec. 707. Uses of the fund.

TITLE VIII—ENVIRONMENTAL INSURANCE RESOLUTION FUND

Sec. 801. Short title.

Sec. 802. Definitions.

Sec. 803. Environmental Insurance Resolution Fund.

Sec. 804. Resolution offers.

Sec. 805. Documentation of claims and insurance coverage.

Sec. 806. Amount of resolution offers.

Sec. 807. Acceptance of resolution offer.

Sec. 808. Resolution payments.

Sec. 809. Rejection of resolution offer and reimbursement to insurer.

Sec. 810. Financial Statements, audits, investigations, and inspections.

Sec. 811. Stay of pending litigation.

Sec. 812. Regulations.

Sec. 813. Court jurisdiction and penalties.

Sec. 814. Miscellaneous provisions.
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Sec. 815. Reports.

Sec. 816. Effective date.

Sec. 817. Termination of authority to offer and accept resolution.

Sec. 818. Termination of fund.

TITLE IX—TAXES

Sec. 901. Amendments to the Internal Revenue Code of 1986.

Sec. 902. Environmental fees and assessments on insurance companies.

Sec. 903. Funding provisions for Environmental Insurance Resolution Fund.

Sec. 904. Resolution Fund not subject to tax.

1 SEC. 3. REFERENCES TO COMPREHENSIVE ENVIRON2 MENTAL RESPONSE, COMPENSATION, AND LI3 ABILITY ACT OF 1980.

4 Except as otherwise expressly provided, whenever in

5 this Act an amendment or repeal is expressed in terms

6 of an amendment to, or repeal of, a section or other provi7 sion, the reference shall be considered to be made to a

8 section or other provision of the Comprehensive Environ9 mental Response, Compensation, and Liability Act of

10 1980 (commonly known as ‘‘Superfund’’) (42 U.S.C. 9601

11 and following).

12 TITLE I—COMMUNITY PARTICI13 PATION AND HUMAN HEALTH

14 SEC. 101. PUBLIC PARTICIPATION.

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

16 subsection (e) and inserting the following:

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

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

19 promulgated by the Administrator, the Adminis20 trator may make grants available to any group of in-
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1 dividuals which may be affected by the release or

2 threatened release of hazardous substances, pollut3 ants, or contaminants at any facility on the State

4 Registry or the National Priorities List. Such grants

5 shall be known as Technical Assistance Grants. To

6 ensure that the application process is accessible to

7 all affected citizens, the Administrator shall periodi8 cally review such process and, based on such review,

9 shall implement appropriate changes to the applica10 tion process to improve access.

11 ‘‘(2) SPECIAL RULES.—No matching contribu12 tion shall be required for a Technical Assistance

13 Grant. The Administrator shall make a portion of

14 the grant available to the grant recipient, in advance

15 of the expenditures to be covered by the grant, in

16 $5,000 installments.

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

18 The Administrator shall publish guidance for deter19 mining that the recipient of any Technical Assist20 ance Grant award is a legitimate representative of

21 the community affected by the facility.

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

23 grant may be made under this subsection with re24 spect to a single facility, but the grant may be re25 newed to facilitate public participation at all stages
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1 of response action. Limits shall be established with

2 respect to the number of years for which grants may

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

4 of response activity at a facility.

5 ‘‘(5) FUNDING AVAILABILITY.—Subject to the

6 limitations provided in paragraph (6), grants shall

7 be made available to affected citizens who live in

8 communities containing facilities in the State Reg9 istry not listed on the National Priorities List.

10 ‘‘(6) FUNDING LIMIT.—Not more than 4 per11 cent of the funds made available for carrying out

12 this Act for any fiscal year may be used for grants

13 under this subsection in that fiscal year and not

14 more than one-eighth of the funds under this sub15 section may be used for grants with respect to facili16 ties not listed on the National Priorities List. If

17 such one-eighth portion is not needed for such facili18 ties, such portion may be used for grants with re19 spect to facilities listed on the National Priorities

20 List.

21 ‘‘(7) FUNDING AMOUNT.—The initial amount of

22 any grant under this subsection may not exceed

23 $50,000 for a single grant recipient. However, the

24 Administrator shall increase the amount of the ini25 tial grant, as appropriate, to reflect the complexity
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1 of response action, the nature and extent of con2 tamination at the facility, the level of facility activ3 ity, projected total needs as requested by the grant

4 recipient, the size and diversity of the affected popu5 lation, and the ability of the grant recipient to iden6 tify and raise funds from other sources.

7 ‘‘(8) AUTHORIZED GRANT ACTIVITIES.—

8 ‘‘(A) INTERPRETATION OF INFORMA9 TION.—Grants awarded under this subsection

10 may be used to obtain technical assistance in

11 interpreting information with regard to (i) the

12 nature of the hazard at a facility; (ii) the reme13 dial investigation and feasibility study; (iii) the

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

15 construction of the remedial action; (v) oper16 ation and maintenance; or (vi) removal activi17 ties at such facility.

18 ‘‘(B) ADDITIONAL ACTIVITIES.—Grants

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

20 to obtain technical assistance in gathering and

21 interpreting information used to rank facilities

22 according to the Hazard Ranking System, (ii)

23 for gathering information to assess a remedy

24 selection decision, (iii) to hire health and safety

25 experts to advise affected residents on health
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1 assessment and contamination data gathering

2 efforts and response activities, (iv) to hire a

3 community liaison to potentially responsible

4 parties and government agencies, (v) to hire ex5 perts to file comments with governmental agen6 cies and generate other documents as necessary

7 to ensure full participation by the grant recipi8 ent, (vi) to hire experts to provide input to the

9 design of any health studies that a government

10 agency performs, and (vii) for training funds

11 for interested affected community members to

12 enable them to more effectively participate in

13 the remedy selection process.

14 ‘‘(C) LIMITATION.—Grants awarded under

15 this section may not be used for the purposes

16 of collecting field sampling data.

17 ‘‘(9) USE OF EXPERTS.—Technical or other ex18 perts hired by grant recipients under this subsection

19 shall be hired by such recipients pursuant to guide20 lines developed by the Administrator.

21 ‘‘(10) NON-SITE-SPECIFIC GRANTS.—In accord22 ance with the rules promulgated by the Adminis23 trator, the Administrator may make Technical As24 sistance Grant funds available to nonprofit organiza25 tions and citizens groups to enhance their participa-
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1 tion in consensus-based rulemaking processes carried

2 out in accordance with this Act. Total funding for

3 all such grants shall not exceed $100,000.

4 ‘‘(f) IMPROVING CITIZEN AND COMMUNITY PARTICI5 PATION IN THE SUPERFUND DECISIONMAKING PROC6 ESS.—(1)(A) In order to provide an opportunity for mean7 ingful public participation in every significant phase of re8 sponse activities under this Act, the President shall pro9 vide the opportunity for public meetings and publish a no10 tice of such meetings before or during performance of each

11 of the following:

12 ‘‘(i) The health assessment and the preliminary

13 assessment and site inspection, as appropriate.

14 Where the President determines a meeting is not ap15 propriate at the preliminary assessment and site in16 spection stage, the President shall provide adequate

17 public notice of that decision.

18 ‘‘(ii) The Remedial Investigation and Feasibility

19 Study (RI/FS).

20 ‘‘(iii) The announcement of the preferred reme21 dial alternative.

22 ‘‘(iv) The completion of the work plan for the

23 RI/FS, Remedial Design and Remedial Action.

24 ‘‘(B) Public meetings shall be designed to obtain in25 formation from the community and disseminate informa-
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1 tion to the community concerning the President’s facility

2 activities and pending decisions.

3 ‘‘(2) The President also shall provide reasonable no4 tice of an opportunity for public participation in meetings

5 in which—

6 ‘‘(A) the participants include Federal officials,

7 or State officials where the State is conducting re8 sponse activities, with authority to make significant

9 decisions affecting a response action, and any other

10 person or persons, unless the other person or per11 sons are all coregulators that are not potentially re12 sponsible parties, or government contractors; and

13 ‘‘(B) the subject of the meeting involves the de14 velopment of the work plan for the preliminary as15 sessment and site inspection, the RI/FS, Remedial

16 Design or Remedial Action, or any other phase of

17 the remedial process for facilities on the National

18 Priorities List or in the State Registry.

19 ‘‘(3) To the extent practicable, before or during the

20 health assessments and site inspection, the President shall

21 solicit and evaluate concerns, interests, and information

22 from the community likely affected by the facility. The

23 evaluation shall include, as appropriate, face-to-face com24 munity surveys to identify the location of private drinking

25 water wells, historic and current or potential use of water,
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1 and other environmental resources in the community; a

2 public meeting; written responses to significant concerns;

3 and other appropriate participatory activities.

4 ‘‘(4) During the remedial investigation and feasibility

5 study, the President shall solicit the views and preferences

6 of the affected community on the remediation and disposi7 tion of hazardous substances, pollutants, or contaminants

8 at the facility. The views and preferences of affected com9 munity members shall be described in the remedial inves10 tigation and feasibility study and considered in the screen11 ing of remedial alternatives for the facility.

12 ‘‘(5) Members of the affected community may pro13 pose remedial alternatives to the President, and the Presi14 dent shall consider such alternatives in the same manner

15 as the President considers alternatives proposed by poten16 tially responsible parties.

17 ‘‘(6) The President, with the assistance of the Citizen

18 Information and Access Office (as provided for in sub19 section (h)), shall provide information to the community

20 and seek comment from affected citizens throughout all

21 significant phases of the response action at the facility.

22 The President shall ensure that information gathered from

23 affected citizens during community outreach efforts

24 reaches appropriate technical staff in a timely and effec25 tive manner. The President also shall ensure reasonable
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1 written or other appropriate responses to such informa2 tion.

3 ‘‘(7) The President shall make all nonprivileged infor4 mation available to the public throughout all phases of re5 sponse action at the facility. Such information shall be

6 made available to the public for inspection and copying

7 without the need to file a formal request subject to reason8 able service charges as appropriate.

9 ‘‘(8)(A) The President, in carrying out responsibil10 ities under this Act, shall ensure that the presentation of

11 information on risk is unbiased and informative. To the

12 extent feasible, documents made available to the general

13 public which purport to describe the degree of risk to

14 human health shall, at a minimum, state—

15 ‘‘(i) the population or populations addressed by

16 any risk estimates;

17 ‘‘(ii) the expected risk or central estimate of

18 risk for the specific population;

19 ‘‘(iii) any appropriate upperbound and lower20 bound estimates; and

21 ‘‘(iv) the reasonable range or other description

22 of uncertainties in the assessment process.

23 ‘‘(B) To the extent practical and appropriate, the Ad24 ministrator shall provide comparisons of the level of risk

25 from hazardous substances found at facilities to com-
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1 parable levels of risk from hazardous substances ordinarily

2 encountered by the general public through other routes of

3 exposure.

4 ‘‘(9) Notwithstanding any other provision of this sub5 section, in the case of a removal action taken in accord6 ance with section 104 which is expected to extend beyond

7 180 days, the President shall comply with the require8 ments of this section. Whenever the planning period for

9 a removal action is expected to be greater than 6 months,

10 the Administrator shall provide the community with notice

11 of the anticipated removal action and a public comment

12 period of no less than 30 days.’’.

13 SEC. 102. COMMUNITY WORKING GROUPS.

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

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

16 new subsections:

17 ‘‘(g) COMMUNITY WORKING GROUPS.—

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

19 President shall provide the opportunity for the es20 tablishment of a representative public forum, known

21 as a Community Working Group (CWG), to achieve

22 direct, regular, and meaningful consultation with all

23 interested parties throughout all stages of a response

24 action whenever—
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1 ‘‘(A) the President determines such a

2 group will be helpful; or

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

4 the population of a locality in which the Na5 tional Priorities List facility is located, petition

6 for a Community Working Group to be estab7 lished.

8 ‘‘(2) DUTIES.—Each Community Working

9 Group shall provide information and views to the

10 President, and, as appropriate, any or all of the fol11 lowing: the Agency for Toxic Substances and Dis12 ease Registry, State regulatory agencies, Federal

13 and State natural resource trustees, and potentially

14 responsible parties conducting response actions. The

15 information and views reported shall include the var16 ious subjects related to facility remediation, includ17 ing facility health studies, potential remedial alter18 natives, and selection and implementation of reme19 dial and removal actions. The Community Working

20 Group shall attempt to achieve consensus among its

21 members before reporting positions to agencies or

22 potentially responsible parties. In cases in which

23 consensus cannot be reached, the Community Work24 ing Group shall allow the presentation of divergent

25 views.
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1 ‘‘(3) LAND USE RECOMMENDATIONS.—To ob2 tain greater community support for remedial deci3 sions affecting future land use, the President shall

4 consult with the CWG on a regular basis throughout

5 the remedy selection process regarding the reason6 ably anticipated future use of land at the facility

7 and any institutional controls required to assure that

8 land use determinations remain in effect. The CWG

9 may offer recommendations on the reasonably antici10 pated future use of land at the facility to the Presi11 dent at any time prior to the selection of a remedy

12 at the facility. The land use recommendation shall

13 consider at a minimum future facility waste manage14 ment needs and the criteria in section 121(b)(2).

15 The President shall not be bound by any rec16 ommendation of the CWG. However, the President

17 shall give substantial weight to the CWG’s land use

18 recommendation when the CWG achieves consensus

19 on the reasonably anticipated future use of land at

20 the facility. In cases in which there is substantive

21 disagreement within the CWG over a recommenda22 tion regarding the reasonably anticipated future use

23 of land at the facility, the President shall make rea24 sonable efforts to reconcile the differences. In the

25 event of continued substantive disagreement, sub-
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1 stantial weight shall be given to the views of the

2 residents in the affected community. Should the

3 President make a determination that is inconsistent

4 with a consensus CWG recommendation on the rea5 sonably expected future use of land at the facility,

6 the President shall issue a written explanation for

7 the inconsistency.

8 ‘‘(4) COMMUNITY WORKING GROUP INPUT.—

9 With the exception of land use recommendations,

10 input received from the Community Working Groups

11 shall be considered by the President to be of equal

12 weight with the advice received from the Technical

13 Assistance Grant recipients and other affected com14 munity members.

15 ‘‘(5) COMMUNITY WORKING GROUP MEM16 BERS.—Members shall serve on the Community

17 Working Group without pay. Membership on the

18 Community Working Group shall not exceed 20 per19 sons. The President shall solicit and accept nomina20 tions for the Community Working Group member21 ship. Ultimate selection of CWG members shall be

22 made by the President after consultation with the

23 Citizen Information and Access Office as provided

24 for in subsection (h). The President shall also pro25 vide notice and opportunity to participate to persons
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1 who are or historically have been disproportionately

2 affected by facility contamination in their commu3 nity. Each Community Working Group shall, to the

4 extent practicable, reflect the composition of the

5 community near the facility and the diversity of in6 terest. Local residents shall comprise no less than

7 50 percent of the total membership of the CWG. In

8 general, the President shall allow members of the

9 following groups representation on a CWG:

10 ‘‘(A) Persons residing or owning residen11 tial property near the facility or persons who

12 may be directly affected by the releases from

13 the facility. At least one person in this group

14 shall represent the Technical Assistance Grant

15 recipient if such a grant has been awarded

16 under subsection (e).

17 ‘‘(B) Persons who, although not residing

18 or owning property near the facility, may be po19 tentially affected by releases from the facility.

20 ‘‘(C) Members of the local medical commu21 nity practicing in the community.

22 ‘‘(D) Representatives of local Indian tribes

23 or Indian communities.
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1 ‘‘(E) Local representatives of citizen, envi2 ronmental, or public interest groups with mem3 bers residing in the community.

4 ‘‘(F) Local government which may include

5 pertinent city or county governments, or both,

6 and any other governmental unit which regu7 lates land use in the vicinity of the facility.

8 ‘‘(G) Workers at the facility who will be in9 volved in actual response operations.

10 ‘‘(H) Workers employed at the facility dur11 ing facility operation.

12 ‘‘(I) Facility owners and local representa13 tives of the significant Potentially Responsible

14 Parties (PRPs), who represent, wherever prac15 ticable, a balance of PRP interests.

16 ‘‘(J) Members of the local business com17 munity.

18 ‘‘(6) TECHNICAL AND ADMINISTRATIVE SUP19 PORT FOR COMMUNITY WORKING GROUPS.—The

20 President shall provide administrative services and

21 meeting facilities for Community Working Groups.

22 The Administrator of Environmental Protection

23 Agency, the Administrator of the Agency for Toxic

24 Substances and Disease Registry and the State, as

25 appropriate, shall participate in Community Work-
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1 ing Group meetings to provide information and tech2 nical expertise, but shall not be members of the

3 Community Working Group.

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

5 of a CWG shall not diminish any other obligation of

6 the President to consider the views of any person in

7 selecting response actions under this Act.

8 ‘‘(h) CITIZEN INFORMATION AND ACCESS OF9 FICES.—

10 ‘‘(1) ESTABLISHMENT OF CITIZEN INFORMA11 TION AND ACCESS OFFICES.—Within 18 months

12 after the date of enactment of the Superfund Re13 form Act of 1994, a Citizen Information and Access

14 Office (CIAO) shall be established within each State

15 to perform the functions provided in this subsection.

16 The CIAO shall be an independent special purpose

17 unit of the government, subject to the administrative

18 laws of the State, including any sunshine laws. If a

19 CIAO has not been established in a State within

20 such 18 months, the Administrator shall establish an

21 office within the Agency to perform the functions of

22 the CIAO in that State until such time as a CIAO

23 is established.
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1 ‘‘(2) PRIMARY FUNCTIONS.—Each Citizen In2 formation and Access Office shall have the following

3 primary functions:

4 ‘‘(A) The Citizen Information and Access

5 Office shall inform citizens and elected officials

6 at all levels of government of the existence of

7 State Registry and National Priorities List fa8 cilities in the State.

9 ‘‘(B) The Citizen Information and Access

10 Office shall provide citizens with a description

11 of the identification and response process under

12 this Act and citizens’ legal rights within that

13 process. It may include identification of re14 sources, including Technical Assistance Grants,

15 that are available to assist affected citizens in

16 participating effectively in the Superfund proc17 ess. Information shall be disseminated in a

18 manner that is easily understood by the com19 munity, considering any unique cultural needs

20 of the community, including presentation of in21 formation orally and distribution of information

22 in languages other than English as appropriate.

23 Other information that the CIAO shall provide

24 to the public may include the following:
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1 ‘‘(i) The possibility, where relevant,

2 that a community may qualify to receive

3 an alternative water supply or relocation

4 assistance.

5 ‘‘(ii) The potential for or existence of

6 a Community Working Group.

7 ‘‘(iii) A description of the facility’s lo8 cation and characteristics, the hazardous

9 substances, pollutants or contaminants

10 present, the known exposure pathways,

11 and the steps being taken to assess the

12 risk presented by the facility. The Citizen

13 Information and Access Office shall dis14 seminate information characterizing the

15 risks presented by a facility. Where a

16 CIAO receives conflicting information from

17 the President and the Community Working

18 Group, the CIAO will make every effort to

19 resolve any apparent difference in informa20 tion on the risks present at the facility be21 fore it distributes that information to the

22 public. Where no agreement is reached

23 among the Citizen Information and Access

24 Office, the President, and the Community

25 Working Group, the Citizen Information
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1 and Access Office shall disseminate such

2 information reflecting the differing views

3 about the risk presented by the facility.

4 The Citizen Information and Access Office

5 shall seek to ensure that the information it

6 disseminates is based on the most current

7 technical and scientific data in its posses8 sion for any State Registry or National

9 Priorities List facility.

10 ‘‘(C) The Citizen Information and Access

11 Office shall serve as an information clearing12 house in each State. Its functions also shall in13 clude maintaining records of each facility’s sta14 tus and any health data generated concerning

15 National Priorities List facilities in each State.

16 The facility data maintained by the Citizen In17 formation and Access Office shall also in18 clude—

19 ‘‘(i) a record of any institutional con20 trols at all facilities in the State;

21 ‘‘(ii) any annual health data generated

22 in connection with the facility;

23 ‘‘(iii) the location of each facility on

24 the State Registry;
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1 ‘‘(iv) to the extent available, the haz2 ardous substances or pollutants or con3 taminants present at each facility in the

4 State, including the volume of the hazard5 ous substances or pollutants or contami6 nants;

7 ‘‘(v) the exposure pathways, current

8 exposure (if any), potential future expo9 sure, and risks to human health or the en10 vironment, after seeking to resolve any dis11 crepancies as provided in subparagraph

12 (B)(iii);

13 ‘‘(vi) protective concentration levels

14 established for the facility;

15 ‘‘(vii) the biennial Environmental Jus16 tice Report prepared pursuant to this sec17 tion; and

18 ‘‘(viii) any report generated during

19 the review conducted in accordance with

20 section 121(c).

21 ‘‘(D) The Citizen Information and Access

22 Office shall assist the Administrator in the Ad23 ministrator’s efforts to disseminate information,

24 notify citizens of public meetings, notify poten-
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1 tial Community Working Group members, and

2 other tasks, as appropriate.

3 ‘‘(E) The Citizen Information and Access

4 Office shall collect available information from

5 the Administrator or other Federal or State

6 agencies regarding the continued effectiveness

7 of removal and remedial actions taken in the

8 State.

9 ‘‘(F) The Citizen Information and Access

10 Office shall conduct outreach activities and pro11 vide information to small disadvantaged busi12 nesses about Federal and State contracting and

13 (to the extent available) subcontracting oppor14 tunities at facilities in the State.

15 ‘‘(3) FUNDING.—Funding for all Citizen Infor16 mation and Access Offices, collectively, shall not ex17 ceed $50,000,000 per year. The Administrator shall

18 publish guidelines establishing a formula for deter19 mining the actual amount of funding for each Citi20 zen Information and Access Office and procedures

21 for awarding grants to any CIAO. The formula shall

22 include factors such as the number and complexity

23 of State Registry and National Priorities List facili24 ties in the State. The funding shall be available di25 rectly to each Citizen Information and Access Office
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1 or, in States where no CIAO is established, the

2 funding shall be made available to the Administrator

3 to carry out the responsibilities of this subsection in

4 that State or for the use of the entity with whom the

5 Administrator contracts to perform the functions of

6 the CIAO.

7 ‘‘(4) CITIZEN INFORMATION AND ACCESS OF8 FICE GOVERNING BOARD.—

9 ‘‘(A) ESTABLISHMENT.—Each Citizen In10 formation and Access Office shall establish a

11 volunteer Citizen Governing Board which shall

12 have the ultimate responsibility for ensuring

13 that the Citizen Information and Access Office

14 is properly managed.

15 ‘‘(B) CITIZEN INFORMATION AND ACCESS

16 OFFICE GOVERNING BOARD MEMBERS.—

17 ‘‘(i) NOMINATIONS.—Citizens active

18 in State Registry and National Priorities

19 List facility communities shall nominate

20 persons for board membership.

21 ‘‘(ii) APPOINTMENTS.—The Governor

22 of each State shall appoint, from those

23 nominees put forward, between 7 and 15

24 citizens to serve as board members.
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1 ‘‘(iii) MEMBERS QUALIFICATIONS.—

2 Where possible, the Governor shall ensure

3 that one-half of the appointees reside in

4 communities affected by a variety of Na5 tional Priorities List facilities in the State,

6 and the other half reside in communities

7 affected by a variety of non-NPL State

8 Registry facilities in the State. Board

9 members shall have a demonstrated com10 mitment to the needs of the citizens in

11 these communities, and shall reasonably

12 reflect the racial and ethnic composition of

13 these communities. Special efforts shall be

14 made to nominate citizens who are or his15 torically have been disproportionately ad16 versely affected by facility contamination.

17 ‘‘(iv) EXPERIENCE.—Where possible,

18 Board members should have a background

19 in a field of study related to the scientific

20 and technical issues common to Superfund

21 facilities, or have practical experience relat22 ed to the Superfund program.

23 ‘‘(v) TERMS.—Board members shall

24 serve for limited, staggered terms.
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1 ‘‘(5) CITIZEN INFORMATION AND ACCESS OF2 FICE STAFF.—Each Citizen Information and Access

3 Office shall have a permanent staff to assist in car4 rying out its functions. Staff shall have dem5 onstrated qualifications for working with citizens in

6 communities located near State Registry or National

7 Priorities List facilities, and shall also meet other

8 criteria established by the President in consultation

9 with the Citizen Information and Access Office Citi10 zen Governing Board. An Executive Director or

11 President, selected by the full Governing Board,

12 shall be responsible for all Citizen Information and

13 Access Office staffing decisions.

14 ‘‘(6) FEDERAL OVERSIGHT OF CITIZEN INFOR15 MATION AND ACCESS OFFICE.—

16 ‘‘(A) REPORT.—The Citizens Information

17 and Access Office shall report annually to the

18 Administrator regarding performance of its du19 ties and shall provide a detailed accounting of

20 its use of funds under this section.

21 ‘‘(B) VERIFICATION BY INSPECTOR GEN22 ERAL.—The Inspector General of the Environ23 mental Protection Agency shall periodically re24 view the programs and reports made under this

25 section.
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1 ‘‘(C) CONSEQUENCES OF FAILURE.—The

2 Administrator may withhold any funding au3 thorized under this section if the Administrator

4 determines, after notice to the affected CIAO,

5 that the CIAO has expended funds in a manner

6 inconsistent with this section.

7 ‘‘(7) CITIZEN INFORMATION AND ACCESS OF8 FICES AND COMMUNITY WORKING GROUPS FOR

9 TRIBAL PEOPLES.—Members of Indian tribes af10 fected by a facility on the National Priorities List

11 may petition the Administrator to form a body that

12 is the equivalent of a State Citizen Information and

13 Access Office. Notwithstanding the creation of a

14 tribal Citizen Information and Access Office, the

15 State Citizen Information and Access Office shall be

16 responsible for providing information and expertise

17 to tribal members as well as other citizens in the

18 State. Tribal members may establish Community

19 Working Groups under subsection (g) regardless of

20 whether there exists a tribal Citizen Information and

21 Access Office or other tribal program relating to this

22 Act.

23 ‘‘(i) ENVIRONMENTAL JUSTICE STUDY.—

24 ‘‘(1) REPORT BY THE ADMINISTRATOR.—The

25 Administrator shall prepare and submit to Congress
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1 an Environmental Justice Study two years after the

2 date of enactment of the Superfund Reform Act of

3 1994 and every 2 years thereafter. Such study also

4 shall be provided to the Citizen Information Access

5 Offices. The Administrator and Citizen Information

6 Access Offices shall ensure that copies of such stud7 ies are made available to the public.

8 ‘‘(2) CONTENT OF THE REPORT.—The Admin9 istrator’s report shall include an analysis of each fa10 cility which shall compare information on priority

11 setting, response actions, and public participation re12 quirements conducted under this Act to the popu13 lation, race, ethnicity, and income characteristics of

14 each community affected by each facility.

15 ‘‘(3) EVALUATION.—The Administrator shall

16 evaluate the information in the study to determine

17 whether priority setting, response actions, and public

18 participation requirements were conducted in a fair

19 and equitable manner and identify program areas

20 that require improvements or modification.

21 ‘‘(4) ACTIONS BASED ON EVALUATION.—The

22 Administrator shall institute the necessary improve23 ments or modifications to address any deficiencies

24 identified in the study prepared under this section.’’.
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1 SEC. 103. HAZARD RANKING SYSTEM AND REVISION OF NA2 TIONAL CONTINGENCY PLAN.

3 (a) IN GENERAL.—Section 105 (42 U.S.C. 9605(a))

4 is amended as follows:

5 (1) By inserting after subsection (g) the follow6 ing new subsections:

7 ‘‘(h) HAZARD RANKING SYSTEM.—In setting prior8 ities under subsection (a)(8), the President—

9 ‘‘(1) shall group facilities together, even if they

10 are not adjacent or geographically juxtaposed, and

11 score them as a single facility where more than one

12 facility listed on the State Registry results in haz13 ardous substances exposures to the same population;

14 ‘‘(2) may take into account to the maximum ex15 tent technically feasible any history of exposure to

16 hazardous substances in the community regardless

17 of the source of exposure, in placing facilities on the

18 National Priorities List;

19 ‘‘(3) shall take into account the use of land or

20 waterways for subsistence, religious, spiritual, or cul21 tural practices where such use results in additional

22 exposures, in placing facilities on the National Prior23 ities List;

24 ‘‘(4) shall conduct interviews with persons af25 fected by the facility and living in the community
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•HR 4916 IH

1 and solicit their input and information in the hazard

2 ranking system evaluation; and

3 ‘‘(5) shall place highest priority on facilities

4 with releases of hazardous substances which result

5 in actual ongoing human exposures at levels result6 ing in demonstrated adverse health effects as identi7 fied in a health assessment conducted by the Agency

8 for Toxic Substances and Disease Registry.

9 ‘‘(i) ENVIRONMENTAL JUSTICE FACILITY SCOR10 ING.—The Administrator shall evaluate major urban areas

11 and any other areas where environmental justice concerns

12 may warrant special attention (such as tribal lands or poor

13 rural communities) and identify 5 facilities in each region

14 of the Environmental Protection Agency that are, or that

15 should be, on the State Registry and that are likely to

16 warrant inclusion on the National Priorities List. These

17 facilities shall be accorded a priority in evaluation for

18 NPL listing and scoring, and shall be evaluated for listing

19 within 2 years after the date of enactment of the

20 Superfund Reform Act of 1994.’’.

21 (2) By striking the period at the end of para22 graph (10) of subsection (a) and inserting a semi23 colon and by adding the following new paragraphs

24 after such paragraph (10):
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1 ‘‘(11) a process and procedure for reviewing pe2 titions to reevaluate a facility not on the National

3 Priorities List for inclusion on the National Prior4 ities List where paragraphs (1), (2), and (3) of sub5 section (h) are relevant.’’.

6 (3) By inserting ‘‘(1)’’ after ‘‘PLAN.—’’ in sub7 section (b) and by adding at the end of that sub8 section the following new paragraph:

9 ‘‘(2) The Administrator shall undertake an effort to

10 review new procedures for conducting remedial investiga11 tions and feasibility studies in an efficient, cost-effective

12 and timely manner. Such review shall take into consider13 ation a results-oriented approach in order to minimize the

14 time required to conduct such investigations and studies.

15 The Administrator shall, as part of the next proposed revi16 sion of the National Contingency Plan after the enactment

17 of this paragraph, propose, as appropriate, to incorporate

18 the new procedures for conducting the remedial investiga19 tions and feasibility studies.

20 SEC. 104. DISEASE REGISTRY AND MEDICAL CARE PROVID21 ERS.

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

23 as follows:

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

25 follows:
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1 ‘‘(A) in cooperation with the States, for sci2 entific purposes and public health purposes, estab3 lish and maintain a national registry of persons ex4 posed to toxic substances;’’.

5 (2) In subparagraph (E), by striking ‘‘admis6 sion to hospitals and other facilities and services op7 erated or provided by the Public Health Service’’

8 and inserting ‘‘referral to accredited medical care

9 providers’’.

10 SEC. 105. SUBSTANCE PROFILES.

11 Section 104(i)(3) (42 U.S.C. 9604(i)(3)) is amended

12 as follows:

13 (1) By inserting ‘‘(A)’’ after ‘‘(3)’’.

14 (2) By redesignating subparagraphs (A), (B),

15 and (C) as clauses (i), (ii), and (iii), respectively.

16 (3) By striking out the matter beginning with

17 ‘‘Any toxicological profile or revision thereof’’ and all

18 that follows through the end of such paragraph and

19 inserting in lieu thereof the following:

20 ‘‘(B) Any toxicological profile or revision thereof shall

21 reflect the Administrator of ATSDR’s assessment of all

22 relevant toxicological testing which has been peer re23 viewed. The profiles prepared under this paragraph shall

24 be for those substances highest on the list of priorities

25 under paragraph (2) for which profiles have not previously
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1 been prepared or for substances not on the listing but

2 which have been found at non-National Priorities List fa3 cilities and which have been determined by ATSDR to be

4 of critical health concern. Profiles required under this

5 paragraph shall be revised and republished as necessary,

6 based on scientific need. Such profiles shall be provided

7 to the States and made available to other interested par8 ties.’’.

9 SEC. 106. DETERMINING HEALTH EFFECTS.

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

11 amended as follows:

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

13 health effects (and techniques for development of

14 methods to determine such health effects) of such

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

16 means such as cooperative agreements and grants

17 with appropriate public and nonprofit institutions.

18 The research shall be designed to determine the

19 health effects (and techniques for development of

20 methods to determine such health effects) of the

21 substance’’.

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

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

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

25 new clause:
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1 ‘‘(iv) laboratory and other studies which can

2 lead to the development of innovative techniques for

3 predicting organ-specific, site-specific, and system4 specific acute and chronic toxicity; and’’.

5 SEC. 107. PUBLIC HEALTH AT NPL FACILITIES.

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

7 as follows:

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

9 follows:

10 ‘‘(A) The Administrator of ATSDR shall perform a

11 public health assessment for each facility, including those

12 facilities owned by any department, agency, or instrumen13 tality of the United States, on the National Priorities List

14 established under section 105 of this Act. The public

15 health assessment shall be commenced as soon as prac16 ticable after each facility is proposed for inclusion on the

17 National Priorities List and shall be completed not later

18 than the date of issuance of a remedial investigation and

19 feasibility study for the facility to allow full consideration

20 in selecting the remedial action of the public health

21 implicaitons of any release.’’.

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

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

24 of the subparagraph: ‘‘The Administrator and the

25 Administrator of ATSDR shall develop strategies to
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•HR 4916 IH

1 obtain relevant on-site and off-site characterization

2 data for use in the health assessment. The Adminis3 trator shall, to the maximum extent practicable, pro4 vide the Administrator of ATSDR with the data and

5 information necessary to make public health assess6 ments sufficiently prior to the initiation of remedial

7 actions to allow ATSDR to complete these assess8 ments. Where deemed appropriate, the Adminis9 trator of ATSDR shall provide to the Administrator

10 as soon as practicable after site discovery, rec11 ommendations for sampling environmental media for

12 hazardous substances of public health concern. To

13 the extent feasible, the Administrator shall incor14 porate such recommendations into its site investiga15 tion activities.

16 ‘‘(ii) In order to improve community involvement in

17 health assessments, the Administrator of ATSDR shall

18 carry out each of the following duties:

19 ‘‘(I) The Administrator of ATSDR shall ac20 tively collect data from Community Working Groups

21 (‘Community Working Groups’) and from other

22 sources in communities affected or potentially af23 fected by releases of hazardous substances, pollut24 ants, or contaminants regarding exposure, relevant

25 human activities, and other factors.
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1 ‘‘(II) The Administrator of ATSDR shall design

2 health assessments that take into account the needs

3 and conditions of the affected community. Commu4 nity-based research models, building links to local

5 expertise and local health resources should be used.

6 Each Community Working Group (or affected com7 munity where no Community Working Group exists)

8 shall be permitted to play an active and early role

9 in reviewing health assessment designs. In preparing

10 such designs, emphasis shall be placed on collection

11 of actual exposure data and sources of multiple ex12 posure shall be considered.’’.

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

14 assessment’’ each place it appears and inserting

15 ‘‘public health assessment’’.

16 SEC. 108. HEALTH STUDIES.

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

18 9604(i)(7)) is amended to read as follows: ‘‘(A) Whenever

19 in the judgment of the Administrator of ATSDR it is ap20 propriate on the basis of the results of a public health

21 assessment or on the basis of other appropriate informa22 tion, the Administrator of ATSDR shall conduct a human

23 health study of exposure or other health effects for se24 lected groups or individuals in order to determine the de-
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•HR 4916 IH

1 sirability of conducting full scale epidemiologic or other

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

3 SEC. 109. DISTRIBUTION OF MATERIALS TO HEALTH PRO4 FESSIONALS AND MEDICAL CENTERS.

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

6 is amended to read as follows:

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

8 health-related provisions of this Act in cooperation with

9 the States, the Administrator of ATSDR shall—

10 ‘‘(A) assemble, develop as necessary, and dis11 tribute to the States, medical colleges, physicians,

12 nursing institutions, nurses, and other health profes13 sionals and medical centers, appropriate educational

14 materials (including short courses) on the medical

15 surveillance, screening, and methods of prevention,

16 diagnosis, and treatment of injury or disease related

17 to exposure to hazardous substances (giving priority

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

19 Administrator of ATSDR considers appropriate; and

20 ‘‘(B) assemble, develop as necessary, and dis21 tribute to the general public and to at-risk popu22 lations appropriate educational materials and other

23 information on human health effects of hazardous

24 substances.’’.
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1 SEC. 110. GRANT AWARDS, CONTRACTS, AND COMMUNITY

2 ASSISTANCE ACTIVITIES.

3 Section 104(i)(15) (42 U.S.C. 6904(i)(15)) is amend4 ed as follows:

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

6 (2) In the first sentence, by striking ‘‘coopera7 tive agreements with States (or political subdivisions

8 thereof)’’ and inserting ‘‘grants, cooperative agree9 ments, or contracts with States (or political subdivi10 sions thereof), other appropriate public authorities,

11 public or private institutions, colleges, universities,

12 and professional associations giving consideration to

13 those colleges and universities that are historically

14 black colleges and universities and to other edu15 cational institutions that primarily serve minorities

16 or represent the interests of affected communities’’.

17 (3) In the second sentence, by inserting ‘‘pub18 lic’’ before ‘‘health assessments’’.

19 (4) By adding at the end the following new sub20 paragraphs:

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

22 at a facility on the National Priorities List, or a release

23 is being evaluated for inclusion on the National Priorities

24 List, the Administrator of ATSDR may provide the assist25 ance specified in this paragraph to public or private non26 profit entities, individuals, and community-based groups
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1 that may be affected by the release or threatened release

2 of hazardous substances in the environment.

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

6 paragraph, is authorized and directed to provide, where

7 appropriate, health services to communities affected by the

8 release of hazardous substances. Such health services may

9 include diagnostic services, specialized treatment, health

10 data registries and preventative public health education.’’.

11 SEC. 111. PUBLIC HEALTH RECOMMENDATIONS IN REME12 DIAL ACTIONS.

13 Section 121(c) (42 U.S.C. 9621(c)) is amended in the

14 first sentence by inserting after ‘‘remedial action’’ the sec15 ond time it appears the following: ‘‘, including public

16 health recommendations and decisions resulting from ac17 tivities under section 104(i),’’.

18 SEC. 112. CLARIFICATION OF ATSDR AUTHORITY.

19 Section 111(c)(4) (42 U.S.C. 9611(c)(4)) is amended

20 by inserting ‘‘and health services,’’ after ‘‘assessments,’’.

21 SEC. 113. RECRUITMENT AND TRAINING DEMONSTRATION

22 PROGRAM.

23 (a) IN GENERAL.—The Administrator of the Envi24 ronmental Protection Agency is authorized to carry out

25 a demonstration program to assist in the recruitment and
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1 training of individuals from areas affected by National

2 Priorities List facilities for employment in remediation ac3 tivities conducted at such facilities.

4 (b) INCENTIVES TO PARTIES.—As an element of the

5 demonstration program, the President shall encourage

6 parties conducting response actions under the Comprehen7 sive Environmental Response, Compensation, and Liabil8 ity Act of 1980 to have their contractors train minorities

9 and other disadvantaged persons from the affected com10 munity in remediation skills directly and in conjunction

11 with historically black colleges and universities and other

12 educational institutions that primarily serve minorities.

13 (c) FUNDING.—Of the amounts made available from

14 the Hazardous Substance Response Fund by section

15 111(q) of the Comprehensive Environmental Response,

16 Compensation, and Liability Act of 1980, $2,000,000

17 shall be available to carry out this section.

18 SEC. 114. TRANSITION.

19 (a) EFFECTIVE DATE IN GENERAL.—Except as pro20 vided in subsection (b), this title and the amendments

21 made by this title shall become effective upon the date of

22 enactment of this Act.

23 (b) SPECIAL RULE.—The requirements of para24 graphs (1) through (4) of section 117(f) and paragraph

25 (1) of section 117(g) of the Comprehensive Environmental
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1 Response, Compensation, and Liability Act of 1980, as

2 added by sections 101 and 102, shall become effective 180

3 days after the date of enactment of this Act.

4 TITLE II—STATE ROLES

5 SEC. 201. CONTRACTS OR COOPERATIVE AGREEMENTS

6 WITH STATES.

7 Title I is amended by adding after section 126 the

8 following new section:

9 ‘‘SEC. 127. CONTRACTS OR COOPERATIVE AGREEMENTS

10 WITH STATES.

11 ‘‘(a) IN GENERAL.—

12 ‘‘(1) APPLICATION FOR AUTHORITY TO TAKE

13 PREREMEDIAL ACTION AT NON-NPL FACILITIES.—A

14 State may apply to the Administrator to take or re15 quire preremedial actions (including removal actions)

16 under a contract or cooperative agreement as pro17 vided in this section at any non-federally owned or

18 operated facility within the boundaries of the State

19 that is not listed on the National Priorities List

20 (NPL).

21 ‘‘(2) APPLICATION FOR AUTHORITY TO TAKE

22 RESPONSE ACTION AT NPL FACILITIES.—A State

23 may apply to the Administrator to take or require

24 response actions, including selection and enforce25 ment of remedial actions and use of allocation proce-
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1 dures under section 130, under a contract or cooper2 ative agreement as provided in this section at any

3 non-federally owned or operated facility within the

4 boundaries of the State that is listed on the National

5 Priorities List (NPL) or to take or require removal

6 actions at any facility proposed for listing on the

7 National Priorities List.

8 ‘‘(3) APPROVAL OF APPLICATION.—The Admin9 istrator shall enter into a contract or cooperative

10 agreement under this section if the Administrator

11 determines that the State—

12 ‘‘(A) meets the qualification requirements

13 set forth in the regulations promulgated pursu14 ant to subsection (b); and

15 ‘‘(B) with respect to authority to select re16 medial actions and use allocation procedures,

17 meets the qualification requirements set forth

18 in subsection (c).

19 ‘‘(b) REGULATIONS.—The Administrator, in con20 sultation with the States, shall promulgate regulations to

21 implement this section. The regulations shall provide such

22 additional qualifications for a contract or cooperative

23 agreement under this section as the Administrator consid24 ers reasonable, including qualifications applicable to par25 ticular types of preremedial or response actions. The regu-
44

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1 lations shall include a requirement that, in order for a

2 State to qualify for a contract or cooperative agreement

3 with respect to a facility under this section, the State may

4 not be a major potentially responsible party with respect

5 to that facility.

6 ‘‘(c) QUALIFICATION REQUIREMENTS WITH RE7 SPECT TO SELECTION OF REMEDIAL ACTION AND USE

8 OF ALLOCATION PROCEDURES.—For purposes of sub9 section (a)(3)(B), with respect to a contract or cooperative

10 agreement under this section for authority to select reme11 dial action or to use the allocation procedures under sec12 tion 130, the Administrator also shall make each of the

13 following determinations:

14 ‘‘(1) The State has the capability to select re15 medial actions or to use the allocation procedures

16 under section 130, including adequate legal author17 ity, financial and personnel resources, organization,

18 and expertise.

19 ‘‘(2) The State meets any other qualifications

20 set forth in the regulations promulgated under sub21 section (b) for selecting remedial actions or using

22 the allocation procedures.

23 ‘‘(3) The State demonstrates a historical record

24 of performing similar response actions.
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1 ‘‘(d) REQUIREMENTS FOR SELECTION OF REMEDIAL

2 ACTION.—In any contract or cooperative agreement that

3 allows a State to select remedial actions, the State shall

4 agree to select such remedial actions in accordance with

5 all of the procedures and requirements set forth in sec6 tions 117 and 121 of this Act, the National Contingency

7 Plan, and any other relevant regulations and guidelines

8 adopted by the Administrator.

9 ‘‘(e) STATE AUTHORITY REGARDING ENFORCEMENT

10 OF SELECTED REMEDIAL ACTION.—(1) A State that se11 lects a remedial action pursuant to a contract or coopera12 tive agreement entered into under subsection (a) shall

13 have the authority to enforce the requirements of such re14 medial action pursuant to section 121(f)(4).

15 ‘‘(2) Such State also shall have the authority to en16 force compliance with any standard, regulation, condition,

17 requirement, order, or final determination of the State

18 with respect to the remedial action. Such State also may

19 seek civil penalties not to exceed $25,000 per day for any

20 violation of such standard, regulation, condition, require21 ment, order, or final determination. Such State may com22 mence an action seeking such relief unless the standard,

23 regulation, condition, requirement, order, or final deter24 mination is arbitrary, capricious, or contrary to law when
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1 reviewed upon the administrative record presented by the

2 State.

3 ‘‘(3) In addition, if expressly provided in the contract

4 or cooperative agreement, such State may waive a Federal

5 requirement applicable to the remedial action in accord6 ance with section 121.

7 ‘‘(f) REQUIREMENTS FOR ENFORCEMENT AND ALLO8 CATION.—

9 ‘‘(1) ENFORCEMENT.—In the case of a contract

10 or cooperative agreement providing for a State to

11 initiate an enforcement action with respect to a facil12 ity for purposes of recovering costs or compelling

13 performance of a remedy at the facility, the contract

14 or cooperative agreement shall require the State to

15 provide for expedited settlements under section 122.

16 ‘‘(2) USE OF ALLOCATION PROCEDURES.—(A)

17 In the case of a contract or cooperative agreement

18 providing for a State to initiate an enforcement ac19 tion with respect to a facility subject to mandatory

20 allocation pursuant to section 130(a)(1), the con21 tract or cooperative agreement shall require the

22 State to use allocation procedures with respect to

23 the facility. The contract or cooperative agreement

24 shall require the State to initiate the allocation proc25 ess by certifying each of the following:
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1 ‘‘(i) The State has completed a potentially

2 responsible party search substantially consistent

3 with subsection (c) of section 130 and will make

4 the results of that search available to the allo5 cator and the parties.

6 ‘‘(ii) The State has notified Federal, State,

7 and tribal natural resource trustees of the com8 mencement of the allocation process and, pursu9 ant to section 104(b)(2), of potential damages

10 to natural resources.

11 ‘‘(iii) The facility would be subject to man12 datory allocation under section 130(a)(1) if the

13 President were conducting the response action.

14 ‘‘(B) After the State has made a certification

15 under subparagraph (A), the Administrator shall ini16 tiate an allocation in accordance with the terms of

17 section 130. The Administrator may assign to the

18 State, by cooperative agreement or otherwise, any

19 responsibilities to conduct the allocation, except that

20 the Administrator and Attorney General shall retain

21 their authority relating to orphan share funding as

22 provided by this paragraph and in section 130, in23 cluding the timing and terms of payment.

24 ‘‘(C) The State may accept or reject the alloca25 tion report on the same basis as provided in section
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1 130(l). If the State does not reject the allocation, it

2 shall use the allocator’s report as the basis of State

3 settlements. The State may recover the costs of the

4 allocation pursuant to State law or the provisions of

5 this Act.

6 ‘‘(D) The President, through either the Admin7 istrator or the Attorney General, or both, may par8 ticipate in any phase of an allocation proceeding

9 where an orphan share is identified according to the

10 factors set forth in section 130.

11 ‘‘(E) If the State accepts an allocation report

12 as the basis for its settlements, and the allocation

13 report identifies an orphan share subject to Federal

14 funding, the State shall apply for such funding by

15 certifying each of the following to the Administrator

16 and the Attorney General:

17 ‘‘(i) The allocation presents a reasonable

18 basis for resolving responsibility for the facility.

19 ‘‘(ii) The assignment of an orphan share

20 shall be in accordance with section 130.

21 ‘‘(F) The Administrator and the Attorney Gen22 eral shall accept a State’s request for orphan share

23 funding supported by an allocation report and the

24 certification described in subparagraph (E), unless

25 the Administrator and Attorney General determine,
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1 within 120 days after the request by the State, that

2 the allocation does not meet the standards set forth

3 in section 130. Such determination shall be made in

4 the same manner, and shall be subject to the same

5 limitations, as set forth in section 130.

6 ‘‘(G) The contract or cooperative agreement

7 shall provide the following:

8 ‘‘(i) The Administrator may deduct from

9 orphan share funding the costs incurred in con10 ducting the allocation.

11 ‘‘(ii) The State may use the orphan share

12 funding only to fund response actions through

13 settlement or to reimburse parties performing

14 work in excess of the share assigned to them in

15 allocation. No such reimbursement may exceed

16 the reimbursement level available under section

17 130.

18 ‘‘(H) The State may recover funds provided

19 through orphan share funding from nonsettling re20 sponsible parties pursuant to State law or the provi21 sions of this Act. Seventy-five percent of such recov22 eries shall be returned to the Fund. The remaining

23 25 percent shall be used for any other response ac24 tion by the recovering State.
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1 ‘‘(3) COVENANTS.—(A) In a case in which ei2 ther the President, acting under the authority of this

3 Act, or a State, acting pursuant to a contract or co4 operative agreement under this section, has respon5 sibility for selecting a response action at a facility

6 listed or proposed for listing on the National Prior7 ities List and enters an administrative or judicial

8 settlement to resolve the liability of responsible par9 ties at the facility, the President or the State may

10 confer, in accordance with requirements relating to

11 covenants of sections 122 and 130, a covenant that

12 will preclude some or all administrative or judicial

13 action by both the President and the State to re14 cover response costs or to compel response actions at

15 the facility with respect to matters addressed in the

16 settlement, except that such covenants shall not be

17 binding on the governmental entity that did not con18 fer the covenant to the extent that—

19 ‘‘(i) the covenant purports to address natu20 ral resource damages; or

21 ‘‘(ii) the President or the State has not

22 been provided notice of, and an opportunity to

23 participate in, the settlement concerning the re24 sponse action; or
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1 ‘‘(iii) the President or the State objects to

2 the settlement within 120 days of the date of

3 signature for the record of decision or receipt of

4 notice of the settlement, whichever is later.

5 ‘‘(B) The covenants described by this para6 graph may be conferred by either the Administrator

7 or the State with respect to a facility owned or oper8 ated by any department, agency, or instrumentality

9 of the United States (including the executive, legisla10 tive, and judicial branches of government). The Ad11 ministrator may confer a covenant in an administra12 tive order, consent decree, or an interagency agree13 ment. The State may confer a covenant in an ad14 ministrative order or a consent decree.

15 ‘‘(g) TERMS AND CONDITIONS; ENFORCEMENT.—

16 ‘‘(1) IN GENERAL.—A contract or cooperative

17 agreement under this section shall be subject to such

18 terms and conditions as the Administrator may pre19 scribe. If a State fails to comply with a requirement

20 of a contract or cooperative agreement, the Adminis21 trator, after 90 days notice to the affected State,

22 may seek in the appropriate United States district

23 court to ensure performance of the response action,

24 or to recover any funds advanced or any costs in25 curred because of the breach.
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1 ‘‘(2) SPECIFIC TERMS.—A contract or coopera2 tive agreement under this section shall include the

3 following requirements:

4 ‘‘(A) A requirement that the State shall

5 exercise any authority conferred by this section

6 or the contract or cooperative agreement on be7 half of the State, and not on behalf of or in the

8 name of the Administrator, the President, or

9 the United States.

10 ‘‘(B) A requirement that the State have

11 and maintain sufficient legal authority under

12 applicable State law to enter into the contract

13 or cooperative agreement.

14 ‘‘(C) A requirement that the Administrator

15 retain authority to terminate and recoup fund16 ing, and to terminate the contract or coopera17 tive agreement, if the State fails to perform the

18 contract or cooperative agreement in a manner

19 consistent with this Act. At least 90 days before

20 terminating any contract or cooperative agree21 ment with a State, the Administrator shall pro22 vide to the State a written explanation of the

23 reasons for the proposed termination and afford

24 an opportunity to the State to discuss the ter-
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1 mination and to propose actions to correct any

2 deficiencies.

3 ‘‘(D) A requirement imposing a non4 discretionary duty on the Administrator to per5 form or compel expeditious performance of re6 sponse actions under the contract or cooperative

7 agreement if the State fails to comply with the

8 terms of the contract or cooperative agreement.

9 ‘‘(h) SAVINGS CLAUSE.—Nothing in this section shall

10 affect the exercise by a State of any other authorities that

11 may be applicable to facilities in such State.’’.

12 SEC. 202. STATE COST SHARE.

13 Section 104(c) is amended by adding at the end the

14 following new paragraphs:

15 ‘‘(10) EXISTING CONTRACTS AND COOPERATIVE

16 AGREEMENTS.—The requirements of paragraphs (3), (6),

17 and (7) of this subsection shall apply only to contracts

18 and cooperative agreements pursuant to section 104(d)

19 entered into prior to the enactment of the Superfund Re20 form Act of 1994.

21 ‘‘(11) STATE COST SHARE.—After the date of enact22 ment of the Superfund Reform Act of 1994, the Adminis23 trator shall not provide any funding under this subsection

24 or section 127, or any response action pursuant to this

25 section, except for emergency removal actions, unless the
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1 State in which the release or threatened release occurs has

2 entered into a contract or cooperative agreement pursuant

3 to this subsection or section 127 that provides assurances,

4 deemed adequate by the Administrator, that—

5 ‘‘(A) the State will pay or assure payment of 15

6 percent of the cost of such response action or fund7 ing, including 15 percent of orphan share funding

8 and operation and maintenance costs; and

9 ‘‘(B) the State will assure oversight of any op10 eration and maintenance of funded response ac11 tions.’’.

12 SEC. 203. SITING.

13 Section 104(c)(9) is amended to read as follows:

14 ‘‘(9) SITING.—Effective 1 year after the date of en15 actment of the Superfund Reform Act of 1994, the Presi16 dent shall not provide any remedial actions pursuant to

17 this section or section 127 unless the State in which the

18 release occurs submits a report describing its plans for

19 adequate treatment, storage, and disposal capacity of haz20 ardous wastes generated within the State, in accordance

21 with guidelines issued by the Administrator.’’.

22 SEC. 204. THE STATE REGISTRY.

23 Section 105(a)(8) of the Act (42 U.S.C. 9605(a)(8))

24 is amended by adding after subparagraph (B) the follow25 ing new subparagraph:
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1 ‘‘(C) STATE REGISTRY.—Each State shall

2 maintain and make available to the public a list of

3 facilities in the State that are believed to present a

4 current or potential hazard to human health or the

5 environment due to the release or threatened release

6 of hazardous substances or pollutants or contami7 nants. Each State, in consultation with the Adminis8 trator and other appropriate Federal agencies, shall

9 update such listing on an annual basis.’’.

10 SEC. 205. CONFORMING AND MISCELLANEOUS AMEND11 MENTS.

12 (a) TRANSFER OF SECTION 121(e)(2).—(1) Section

13 121(e) is amended—

14 (A) by striking out paragraph (2); and

15 (B) by striking out ‘‘PERMITS AND ENFORCE16 MENT.—(1)’’ and inserting ‘‘PERMITS.—’’.

17 (2) Section 121(f) is amended by adding at the end

18 the following new paragraphs:

19 ‘‘(4) A State may enforce any Federal or State stand20 ard, requirement, criteria, or limitation to which the reme21 dial action is required to conform under this Act in the

22 United States district court for the district in which the

23 facility is located.

24 ‘‘(5) The President shall provide to any State within

25 a 50-mile radius of a remedial action at a Federal facility
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1 a reasonable opportunity to review and comment on each

2 of the following:

3 ‘‘(A) The remedial investigation and feasibility

4 study and all data and technical documents leading

5 to its issuance.

6 ‘‘(B) The planned remedial action identified in

7 the remedial investigation and feasibility study.

8 ‘‘(C) The engineering design following selection

9 of the final remedial action.

10 ‘‘(D) Other technical data and reports relating

11 to implementation of the remedy.

12 ‘‘(E) Any proposed finding or decision by the

13 President to exercise the authority of subsection

14 (d)(7)(e).’’.

15 (b) SECTION 126(a).—Section 126(a) is amended by

16 adding after ‘‘section 104(i) (regarding health authori17 ties)’’ the following: ‘‘, section 127 (regarding contracts

18 and cooperative agreements), section 128 (regarding vol19 untary response actions), subsection (f) of section 121 (re20 lating to cleanup standards), section 122(d)(1)(D) (relat21 ing to compliance with consent decrees),’’.

22 (c) SECTION 310(a).—Section 310(a) is amended by

23 inserting ‘‘(including any State)’’ after ‘‘person’’.
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1 (d) TRANSITION.—Subsection (d) of section 104 is

2 amended by adding at the end the following new para3 graph:

4 ‘‘(5) TERMINATION.—This subsection shall cease to

5 be in effect on the effective date of regulations promul6 gated to implement section 127, as added by the

7 Superfund Reform Act of 1994.’’.

8 SEC. 206. STUDY OF AUTHORIZATION OF STATES TO CARRY

9 OUT SUPERFUND.

10 The Administrator of the Environmental Protection

11 Agency shall conduct a study of the feasibility of authoriz12 ing States to use their own laws to carry out the provisions

13 of the Comprehensive Environmental Response, Com14 pensation, and Liability Act of 1980 in lieu of the Federal

15 program established under such Act.

16 SEC. 207. STATE ROLE AT FEDERAL FACILITIES.

17 Subsection (g) of section 120 is amended to read as

18 follows:

19 ‘‘(g) TRANSFER OF AUTHORITIES.—

20 ‘‘(1) STATE APPLICATION FOR TRANSFER OF

21 AUTHORITIES.—A State may apply to the Adminis22 trator to exercise the authorities vested in the Ad23 ministrator under subsections (e) and (h)(other than

24 (h)(2)) of this section at any or all facilities owned

25 or operated by any department, agency, or instru-
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1 mentality of the United States (including the execu2 tive, legislative, and judicial branches of govern3 ment), including the authority—

4 ‘‘(A) to publish a timetable and deadlines

5 for completion of any remedial investigation

6 and feasibility study;

7 ‘‘(B) to review and approve all documents

8 prepared in connection with any such investiga9 tion and study;

10 ‘‘(C) to review and select remedies pursu11 ant to subsection (e)(4)(A); and

12 ‘‘(D) to enter into agreements with depart13 ments, agencies, and instrumentalities of the

14 United States in accordance with subsection

15 (e)(2), and to enter into consent decrees with

16 other potentially responsible parties in accord17 ance with subsection (e)(6).

18 ‘‘(2) TRANSFER OF AUTHORITIES.—The Ad19 ministrator shall enter into a contract or cooperative

20 agreement to transfer the authorities described in

21 paragraph (1) if the Administrator determines the

22 following:

23 ‘‘(A) The State has the ability to exercise

24 such authorities in accordance with this Act, in25 cluding adequate legal authority, financial and
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1 personnel resources, organization, and exper2 tise.

3 ‘‘(B) The State demonstrates experience in

4 exercising similar authorities.

5 ‘‘(3) EFFECT OF AUTHORIZATION UNDER SOLID

6 WASTE DISPOSAL ACT.—In the review by the Admin7 istrator of an application of a State for transfer of

8 authorities under this subsection, if the State is au9 thorized to implement a State hazardous waste pro10 gram pursuant to section 3006 of the Solid Waste

11 Disposal Act (42 U.S.C. 6926), the following provi12 sions apply:

13 ‘‘(A) With respect to a State that is a sig14 natory to an interagency agreement under sub15 section (e)(2) that is in effect on the effective

16 date of the Superfund Reform Act of 1994, the

17 Administrator, in making the determinations

18 referred to in paragraph (2), shall accord sub19 stantial weight to the State’s hazardous waste

20 program authorization and the Administrator’s

21 findings in approving such authorization.

22 ‘‘(B) With respect to a State whose au23 thorization under such section 3006 includes

24 authorization to implement the corrective action

25 provisions of the Solid Waste Disposal Act, the
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1 Administrator shall approve the application and

2 provide for the orderly transfer of authorities as

3 expeditiously as possible, but in no case later

4 than 6 months after the date of receipt of the

5 application, unless the parties agree to another

6 deadline.

7 ‘‘(4) EFFECT OF TRANSFER.—Any State to

8 which authorities are transferred under this sub9 section shall not be deemed to be an agent of the

10 President but shall exercise such authorities in its

11 own name, and the Administrator may transfer to a

12 State only those authorities of the Administrator

13 identified in this subsection.

14 ‘‘(5) DEADLINES.—Except as provided in para15 graph (3)(B), the Administrator shall make a deter16 mination on an application from a State under this

17 subsection not later than 90 days after the date the

18 Administrator receives the application.

19 ‘‘(6) WITHDRAWAL OF AUTHORITIES.—(A) The

20 Administrator may withdraw the authorities trans21 ferred under this subsection in whole or in part if

22 the Administrator determines—

23 ‘‘(i) that the State, in whole or in part, is

24 exercising such authorities in a manner clearly
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1 inconsistent with the requirements of this Act;

2 or

3 ‘‘(ii) in the case of a State that was ap4 proved under paragraph (3)(B), that the State

5 is no longer authorized to implement the correc6 tive action provisions of the Solid Waste Dis7 posal Act.

8 ‘‘(B) At least 90 days before withdrawing any

9 such transferred authorities from a State, the Ad10 ministrator shall provide to the State a written ex11 planation of the reasons for the proposed withdrawal

12 and afford an opportunity to the State to discuss the

13 withdrawal and to propose actions to correct any de14 ficiencies.

15 ‘‘(7) ENFORCEMENT AND REMEDY SELEC16 TION.—(A) An interagency agreement under this

17 section between a State (including States which are

18 parties to such agreements through the exercise of

19 the Administrator’s authorities pursuant to a coop20 erative agreement or contract under this subsection)

21 and any department, agency, or instrumentality of

22 the United States, shall be enforceable by the State

23 or the Federal department, agency, or instrumental24 ity in the United States district court for the district

25 in which the facility is located. The district court
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1 shall have the jurisdiction to enforce compliance with

2 any provision, standard, regulation, condition, re3 quirement, order, or final determination which has

4 become effective under such agreement, and to im5 pose any appropriate civil penalty provided for any

6 violation of the agreement, not exceed $25,000 per

7 day.

8 ‘‘(B) At Federal facilities where the Adminis9 trator’s authorities under subsection (e)(4) have

10 been transferred to the State pursuant to this sec11 tion, and the State does not concur in the remedy

12 selection proposed by the Federal agency, the parties

13 shall enter into dispute resolution as provided in the

14 interagency agreement, provided that the final level

15 for such disputes concerning remedy selection shall

16 be to the head of the Federal department, agency,

17 or instrumentality and the Governor of the State. If

18 no agreement is reached between the head of the

19 Federal department, agency, or instrumentality and

20 the Governor, the State may issue the final deter21 mination. In order to compel implementation of the

22 State’s selected remedy, the State must bring a civil

23 action in the appropriate Federal district court. The

24 district court shall have jurisdiction as provided in

25 subparagraph (A) to issue any relief that may be
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1 necessary to implement the remedial action, to im2 pose appropriate civil penalties not to exceed

3 $25,000 per day from the date the selected remedy

4 becomes final, and to review any challenges to the

5 State’s final determination consistent with the

6 standards set forth in section 113(j) of this Act.

7 ‘‘(8) LIMITATION.—Except for authorities that

8 are transferred by the Administrator to a State pur9 suant to this subsection, or that are transferred by

10 the Administrator to an officer or employee of the

11 Environmental Protection Agency, no authority vest12 ed in the Administrator under this section may be

13 transferred, by executive order of the President or

14 otherwise, to any other officer or employee of the

15 United States or to any other person. Except as nec16 essary to specifically implement the transfer of the

17 Administrator’s authorities to a State pursuant to

18 this subsection, nothing in this subsection shall be

19 construed as altering, modifying, or impairing in any

20 manner, or authorizing the unilateral modification

21 of, any terms of any agreement, permit, administra22 tive, or judicial order, decree, or interagency agree23 ment existing on the effective date of the Superfund

24 Reform Act of 1994. Any other modifications or re25 visions of an interagency agreement entered into
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1 under this section shall require the consent of all

2 parties to such agreement, and absent such consent

3 the agreement shall remain changed. Nothing in this

4 subsection shall affect the exercise by a State of any

5 other authorities that may be applicable to facilities

6 in such State.’’.

7 TITLE III—VOLUNTARY

8 RESPONSE

9 SEC. 301. VOLUNTARY RESPONSE PROGRAM.

10 Title I is amended by adding the following new sec11 tion after section 127:

12 ‘‘SEC. 128. VOLUNTARY RESPONSE PROGRAM.

13 ‘‘(a) PURPOSES AND OBJECTIVES.—The purposes

14 and objectives of this section are to—

15 ‘‘(1) significantly increase the pace of response

16 activities at contaminated sites by promoting and

17 encouraging the creation, development, and expan18 sion of State voluntary response programs; and

19 ‘‘(2) benefit the public health, welfare, and the

20 environment by returning contaminated sites to eco21 nomically productive or other beneficial uses.

22 ‘‘(b) ESTABLISHMENT OF PROGRAM.—The Adminis23 trator shall establish a program to provide technical, fi24 nancial, and other assistance, including grants, to States

25 to establish and expand voluntary response programs.
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1 ‘‘(c) EPA ASSISTANCE TO STATES FOR STATE VOL2 UNTARY RESPONSE PROGRAMS.—The Administrator shall

3 assist States in the establishment and administration of

4 State voluntary response programs that—

5 ‘‘(1) provide opportunities for technical assist6 ance for voluntary response actions;

7 ‘‘(2) provide adequate opportunities for public

8 participation in selecting response actions, including

9 prior notice and opportunity for comment in appro10 priate circumstances;

11 ‘‘(3) provide streamlined procedures to ensure

12 expeditious voluntary response actions;

13 ‘‘(4) provide adequate oversight and enforce14 ment authorities to ensure that voluntary response

15 actions are protective of human health and the envi16 ronment, are conducted in accordance with an ap17 propriate response action plan and ensure comple18 tion of response actions if the person conducting the

19 response action fails or refuses to complete the nec20 essary response activities, including operation and

21 maintenance or long-term monitoring activities;

22 ‘‘(5) provide mechanisms for the approval of a

23 response action plan; and

24 ‘‘(6) provide for a certification or similar docu25 mentation from the State to the person conducting
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1 the response action indicating that the response is

2 complete.

3 ‘‘(d) EPA REVIEW OF STATE PROGRAMS.—At any

4 time after the enactment of this Act, a State may submit,

5 for review by the Administrator, documents the State

6 deems appropriate to describe a State voluntary response

7 program, together with a certification that the program

8 is consistent with the elements set forth in subsection (c).

9 ‘‘(e) QUALIFICATION OF STATE PROGRAM.—

10 ‘‘(1) APPROVAL OR DISAPPROVAL.—A State vol11 untary response program submitted under sub12 section (d) shall be a qualified program under this

13 Act beginning on the date 120 days after the sub14 mittal of the certification under subsection (d) un15 less the Administrator determines before that date

16 that the State’s submittal is not consistent with the

17 elements set forth in subsection (c). The Adminis18 trator shall seek public comment on the submittal of

19 a State voluntary response program under this sec20 tion and shall publish in the Federal Register the

21 reasons for the approval or disapproval of any such

22 program.

23 ‘‘(2) WITHDRAWAL OF APPROVAL.—Whenever

24 the Administrator determines after public hearing

25 that a State is not administering and enforcing a
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1 qualified program in accordance with subsection (c),

2 the Administrator shall notify the State in writing of

3 such determination. If appropriate corrective action

4 is not taken by the State within 120 days after re5 ceipt of the notice, the Administrator shall withdraw

6 approval of the program and publish a notice of such

7 withdrawal in the Federal Register, after which the

8 State program shall cease to be a qualified program

9 under this section. If the State subsequently under10 takes corrective measures, the Administrator shall

11 reinstate the program as a qualified program under

12 this section. The Administrator shall not withdraw

13 approval of any such program unless the Adminis14 trator provides to the State in writing and publishes

15 in the Federal Register the reasons for such with16 drawal.

17 ‘‘(f) NPL LISTING.—No portion of a facility subject

18 to a response action plan approved under a qualified pro19 gram under this section shall be proposed for listing on

20 the National Priorities List so long as substantial and con21 tinual response activities are being undertaken pursuant

22 to such plan to complete the response action in a timely

23 manner as set forth in the response action plan. Nothing

24 in this section shall be construed to limit the Administra25 tor’s ability to list on the National Priorities List facilities
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1 that have been proposed for listing, or to compel response

2 action under section 106 of the Act.

3 ‘‘(g) CONDUCT OF RESPONSE.—The Administrator

4 shall, after consultation with the State, and notice and op5 portunity for public comment, promulgate regulations de6 scribing circumstances in which any State having a quali7 fied program, and also authorized to issue permits under

8 Federal environmental statutes, may waive such permit re9 quirements with respect to activities conducted pursuant

10 to an approved voluntary response plan if (1) such State

11 has the authority under its own statutes or regulations

12 to grant such waivers, (2) the State waiver authority is

13 used in no less stringent a manner than allowed under

14 Federal permit waiver authority, and (3) the response ac15 tion plan requires compliance with the relevant substantive

16 requirements of the statute concerned.

17 ‘‘(h) EFFECT OF RESPONSE.—Performance of a vol18 untary response action pursuant to this section shall not

19 constitute an admission of liability under any Federal,

20 State, or local law or regulation or in any citizens suit

21 or other private action.

22 ‘‘(i) COMPLIANCE WITH NCP.—Response actions

23 conducted pursuant to a qualified program shall be pre24 sumed to be consistent with the National Contingency
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1 Plan for the purposes of private cost recovery claims under

2 this Act.

3 ‘‘(j) ANNUAL REPORTING.—

4 ‘‘(1) REPORT BY STATE.—States with qualified

5 programs under this section shall report to the Ad6 ministrator at the end of each calendar year on the

7 status of their programs. Each such report shall in8 clude a statement regarding whether the program

9 continues to be consistent with the elements set

10 forth in subsection (c).

11 ‘‘(2) REPORT BY ADMINISTRATOR.—The Ad12 ministrator shall report, not later than one year

13 after the enactment of this section, and annually

14 thereafter, to the Congress on the status of State

15 voluntary response program. The report shall in16 clude an analysis of whether qualified State vol17 untary response action programs continue to be con18 sistent with the elements set forth in subsection (c).

19 ‘‘(k) STATUTORY CONSTRUCTION.—(1) This section

20 is not intended to impose any requirement on a State vol21 untary response program existing on or after the date of

22 the enactment of the Superfund Reform Act of 1994.

23 ‘‘(2) This section is not intended to affect the liability

24 of any person or to affect other response authorities af25 forded under any law or regulation relating to environ-
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1 mental contamination, including this Act, the Solid Waste

2 Disposal Act, the Clean Water Act, the Toxic Substances

3 Control Act, and title XIV of the Public Health Service

4 Act (the Safe Drinking Water Act), except that the suc5 cessful completion of a response action at a facility pursu6 ant to a qualified program under this section shall be con7 sidered for purposes of section 107(a)(6)(C) as evidence

8 that a person acquiring ownership of the facility is a bona

9 fide prospective purchaser of the facility within the mean10 ing of section 101(39).

11 ‘‘(3) Nothing in this section shall be construed to re12 quire any person to participate in a qualified voluntary

13 response program under this section or in any other vol14 untary response program in order to qualify as a bona

15 fide purchaser for purposes of section 107(a)(6)(C).’’.

16 TITLE IV—LIABILITY AND

17 ALLOCATION

18 SEC. 401. INFORMATION GATHERING AND ACCESS.

19 (a) ADDITIONAL INFORMATION.—Section 104(e)(2)

20 (42 U.S.C. 9604(e)(2)) is amended—

21 (1) by striking subparagraph (C) and inserting:

22 ‘‘(C) The ability of a person to pay for or

23 to perform a response action.’’; and

24 (2) by inserting after subparagraph (C) the fol25 lowing:
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1 ‘‘(D) The identity of any persons engaged

2 in, responsible for, controlling, or having the

3 ability to control activities or operations at a

4 vessel or facility giving rise to liability under

5 this Act.

6 ‘‘(E) The potential liability or responsibil7 ity of any person to perform or pay for a re8 sponse action.

9 ‘‘(F) For a person conducting a response

10 action, an accounting of direct and indirect

11 costs the person has incurred in conducting

12 such response action.

13 ‘‘(G) Information that is otherwise relevant

14 to enforce the provisions of this Act.’’.

15 (b) CERTIFICATIONS.—Section 104(e) (42 U.S.C.

16 9604(e)) is amended—

17 (1) by redesignating paragraphs (3), (4), (5),

18 (6), and (7) as paragraphs (4), (5), (6), (7), and

19 (8), respectively; and

20 (2) by inserting after paragraph (2) the follow21 ing:

22 ‘‘(3) CERTIFICATION.—The President may re23 quire respondents to requests made pursuant to this

24 subsection to certify that—
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1 ‘‘(A) the responses are true, accurate, and

2 complete to the best of the respondent’s knowl3 edge;

4 ‘‘(B) the responses are based on a diligent,

5 good faith search of records in the possession or

6 control of the person to whom the request was

7 directed;

8 ‘‘(C) the responses are based on a reason9 able inquiry of the current and former officers,

10 directors, employees, and agents of the person

11 to whom the request was directed;

12 ‘‘(D) the responses accurately and com13 pletely reflect information obtained in the

14 course of conducting such search and inquiry;

15 ‘‘(E) the respondent understands that

16 there is a continuing obligation to supplement

17 the response if any additional, new, or different

18 information relevant to the matters addressed

19 in the request or the response thereto becomes

20 known or available to the respondent; and

21 ‘‘(F) the respondent understands that

22 there are significant penalties for knowingly

23 and willfully submitting false information, in24 cluding the possibility of fine and imprison25 ment.’’.
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1 (c) ADMINISTRATIVE SUBPOENAS.—Section 104(e)

2 (42 U.S.C. 9604(e)) is further amended by inserting after

3 paragraph (8) (as redesignated by subsection (b)) the fol4 lowing new paragraph:

5 ‘‘(9) ADMINISTRATIVE SUBPOENAS.—When it

6 would assist in the collection of information nec7 essary or appropriate for the purposes of implement8 ing this Act, the Administrator may by subpoena re9 quire the attendance and testimony of witnesses and

10 the production of reports, papers, documents, an11 swers to questions, and other information listed in

12 paragraph (2) that the Administrator considers nec13 essary. Witnesses shall be paid the same fees and

14 mileage that are paid witnesses in the courts of the

15 United States. In the event of contumacy or failure

16 or refusal of any person to obey any such subpoena,

17 any district court of the United States in which

18 venue is proper shall have jurisdiction to order any

19 such person to comply with such subpoena. Any fail20 ure to obey such an order of the court is punishable

21 by the court as a contempt thereof.’’.

22 (d) CONFIDENTIALITY OF INFORMATION.—Subpara23 graph (A) of section 104(e)(8) (as redesignated by sub24 section (b)), is amended to read as follows:
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1 ‘‘(A) Any records, reports, documents, or infor2 mation obtained from any person under this section

3 (including records, reports, documents, or informa4 tion obtained by representatives of the President (or

5 the State as the case may be) and records, reports,

6 documents, or information obtained pursuant to a

7 contract, grant, or other agreement to perform work

8 pursuant to this section) shall be available to the

9 public not later than 45 days after the records, re10 ports, or information is obtained, except as follows:

11 ‘‘(i) Upon a showing satisfactory to the

12 President (or the State, as the case may be) by

13 any person that records, reports, documents, or

14 information, or any particular part thereof

15 (other than health or safety effects data), to

16 which the President (or the State, as the case

17 may be) or any officer, employee, or representa18 tive has access under this section if made public

19 would divulge information entitled to protection

20 under section 1905 of title 18, United States

21 Code, such information or particular portion

22 thereof shall be considered confidential in ac23 cordance with the purposes of that section, ex24 cept as otherwise provided in this clause. Any

25 such record, report, document, or information
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1 may be disclosed to other officers, employees, or

2 authorized representatives of the United States

3 carrying out this Act, when relevant in any pro4 ceeding under this Act, including any allocator

5 appointed pursuant to section 130. If such

6 records, reports, documents, or information are

7 obtained or submitted to the United States (or

8 the State, as the case may be) pursuant to a

9 contract, grant, or other agreement to perform

10 work pursuant to this section, such record, re11 port, document, or information may be dis12 closed to persons from whom the President

13 seeks to recover costs pursuant to this Act.

14 ‘‘(ii) This section does not require that in15 formation which is exempt from disclosure pur16 suant to section 552(a) of title 5, United States

17 Code, by reason of subsection (b) of such sec18 tion, be available to the public. The disclosure

19 of any such information pursuant to this sec20 tion shall not authorize disclosure to other par21 ties or be deemed to waive any confidentiality

22 privilege available under any Federal or State

23 law.’’.

24 (e) CONFIDENTIALITY REQUIREMENTS FOR CON25 TRACTORS.—Paragraph (8) of section 104(e) (as redesig-
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1 nated by subsection (b)) is amended by adding at the end

2 the following new subparagraph:

3 ‘‘(G)(i) No person described in clause (ii) may

4 disclose any record, report, document, or other infor5 mation referred to in subparagraph (A)(i) without

6 the permission of the President (or the State, as the

7 case may be).

8 ‘‘(ii) A person described in this clause is any

9 person—

10 ‘‘(I) who is not an employee of the United

11 States Government; and

12 ‘‘(II) who, by virtue of the person’s duties

13 under a contract or cooperative agreement with

14 the United States under this section to perform

15 work for the United States Government or im16 plement the requirements of this Act, has re17 ceived information obtained under this section

18 (or any record, report, or document containing

19 such information) which, if requested from the

20 United States Government pursuant to section

21 552 of title 5, United States Code, would be ex22 empt from disclosure by reason of subsection

23 (b) of such section.’’.
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1 (f) AVAILABILITY OF INFORMATION TO CONGRESS.—

2 Subsection 104(e) is further amended by adding after

3 paragraph (9) the following new paragraph:

4 ‘‘(10) AVAILABILITY OF INFORMATION TO CON5 GRESS.—Nothing in this subsection shall be con6 strued to authorize any person, including any allo7 cator appointed pursuant to section 130, to withhold

8 any documents or information from Congress, or any

9 duly authorized Committee thereof, or limit in any

10 manner the right of Congress, or any duly author11 ized Committee thereof, to obtain such documents or

12 information.’’.

13 SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.

14 (a) ADDITIONAL AUTHORITY TO ISSUE ADMINISTRA15 TIVE ORDERS.—Section 106(a) (42 U.S.C. 9606(a)) is

16 amended by adding at the end the following: ‘‘The Presi17 dent may amend such administrative orders and issue ad18 ditional orders relating to the facility, as appropriate,

19 without a subsequent finding of an imminent and substan20 tial endangerment, to complete all response actions nec21 essary to respond to an actual or threatened release or

22 to require additional response actions that are necessary

23 or appropriate to respond to the actual or threatened re24 lease that was the subject of the original administrative

25 order.’’.
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1 (b) REQUIREMENT TO PROVIDE PRPS EVIDENCE OF

2 LIABILITY.—Section 106(a) (42 U.S.C. 9606(a)) is fur3 ther amended by adding at the end the following: ‘‘In any

4 case in which the President issues an order to a person

5 under this subsection, the President shall provide informa6 tion concerning the evidence that indicates that each ele7 ment of liability contained in section 107(a) is present.’’.

8 (c) SUFFICIENT CAUSE.—Section 106(b)(1) (42

9 U.S.C. 9606(b)(1)) is amended—

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

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

12 (3) by inserting before the period ‘‘, or be re13 quired to comply with such order, or both, even if

14 another person has complied, or is complying, with

15 the terms of the same order or another order per16 taining to the same facility and release or threatened

17 release’’; and

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

19 ‘‘(B) For purposes of this subsection, a ‘sufficient

20 cause’ requires—

21 ‘‘(i) an objectively reasonable belief by the per22 son to whom the order is issued that the person is

23 not liable for any response costs under section 107;

24 or
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1 ‘‘(ii) that the action to be performed pursuant

2 to the order is inconsistent with the national contin3 gency plan.

4 ‘‘(C) The existence or results of an allocation process

5 pursuant to section 130 shall not affect or constitute a

6 basis for a determination of ‘sufficient cause’ under this

7 paragraph or under section 107(c)(3).’’.

8 (d) REIMBURSEMENT.—Subsection (b) of section 106

9 (42 U.S.C. 9606(b)) is further amended in the first sen10 tence of paragraph (2)(A) by striking ‘‘completion of’’ and

11 inserting ‘‘the President determines that such person has

12 completed’’.

13 SEC. 403. LIMITATIONS TO LIABILITY FOR RESPONSE

14 COSTS.

15 (a) LIMITATIONS ON LIABILITY.—Section 107(a) (42

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

17 (1) In paragraph (1), by striking ‘‘and’’ and in18 serting ‘‘or’’.

19 (2) In paragraph (3), by striking ‘‘person,’’ and

20 inserting ‘‘person or’’.

21 (3) In paragraph (4)(A), by inserting ‘‘, includ22 ing the costs of overseeing response actions con23 ducted by potentially responsible parties,’’ before

24 ‘‘incurred by the United States’’.

25 (4) In paragraph (4)(B)—
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1 (A) by striking ‘‘other’’ both places it ap2 pears; and

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

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

5 phrase ‘‘consistent with the national contin6 gency plan’’.

7 (5) In paragraph (4), by striking ‘‘by such per8 son,’’ and all that follows through ‘‘shall be liable

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

10 ‘‘by such person—

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

12 causes the incurrence of response costs, of a hazardous

13 substance, shall be liable for—’’.

14 (6) By designating the text beginning with

15 ‘‘The amounts recoverable’’ and ending with ‘‘this

16 subsection commences.’’ as paragraph (5) and align17 ing the margin of such text with paragraph (4).

18 (7) By adding the following new paragraphs

19 after paragraph (5):

20 ‘‘(6) Notwithstanding paragraphs (1) through

21 (4) of this subsection, a person who does not impede

22 the performance of a response action or natural re23 source restoration at a facility shall not be liable:

24 ‘‘(A)(i) To the extent liability at such facil25 ity is based solely on paragraph (3) or (4) of
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1 this subsection, and the person arranged for

2 disposal, treatment, or transport for disposal or

3 treatment, or accepted for transport for dis4 posal or treatment of only municipal solid waste

5 or sewage sludge owned or possessed by such

6 person, and the person is—

7 ‘‘(I) the owner, operator, or lessee of

8 residential property;

9 ‘‘(II) a small business; or

10 ‘‘(III) a small non-profit organization.

11 ‘‘(ii) This subparagraph shall have no ef12 fect on the liability of any other person.

13 ‘‘(B) To the extent liability at such facility

14 is based solely on paragraph (3) or (4) of this

15 subsection, and the person can demonstrate

16 that it arranged for disposal or treatment, or

17 transport for disposal or treatment or accepted

18 for transport for disposal or treatment, 55 gal19 lons or less of liquid materials containing haz20 ardous substances or pollutants or contami21 nants or less, 100 pounds or less of solid mate22 rials containing hazardous substances or pollut23 ants or contaminants, or such greater or lesser

24 amount as the Administrator may determine by

25 regulation, except where—
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1 ‘‘(i) the Administrator has determined

2 that such material contributed or could

3 contribute significantly to the costs of re4 sponse at the facility, or

5 ‘‘(ii) the person has failed to respond

6 fully and completely to information re7 quests or administrative subpoenas by the

8 United States.

9 ‘‘(C) To the extent liability at such facility

10 is based solely on paragraph (1) of this sub11 section for a release or threat of release from

12 the facility, and the person is a bona fide pro13 spective purchaser of the facility. Not later than

14 18 months after the date of the enactment of

15 the Superfund Reform Act of 1994, the Admin16 istrator shall issue guidelines explaining criteria

17 by which a person may qualify as a bona fide

18 prospective purchaser. Such guidelines shall be

19 made readily available to the public.

20 ‘‘(D) To the extent liability at such facility

21 is based solely on the person’s status as owner

22 under paragraph (1) for a release or threat of

23 release from the facility, and the person ac24 quired the facility by inheritance or bequest if

25 the person—
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1 ‘‘(i) acquired the real property on

2 which the facility concerned is located after

3 disposal or placement of the hazardous

4 substance took place;

5 ‘‘(ii) did not cause or contribute to the

6 release or threat of release; and

7 ‘‘(iii) exercised due care with respect

8 to the hazardous substance concerned, in9 cluding precautions against foreseeable

10 acts of third parties, taking into consider11 ation the characteristics of such hazardous

12 substance, in light of all relevant facts and

13 circumstances.

14 ‘‘(E) To the extent the liability of a Fed15 eral or State governmental entity or municipal16 ity at such facility is based solely on its—

17 ‘‘(i) ownership of a road, street, or

18 other right of way or public transportation

19 route (other than railroad rights of way

20 and railroad property) over which hazard21 ous substances are transported; or

22 ‘‘(ii) granting of a license or permit to

23 conduct business.

24 ‘‘(F) To the extent the liability of a de25 partment, agency, or instrumentality of the
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1 United States at such facility is based on ac2 tions of such department, agency, or instrumen3 tality taken in response to a natural disaster

4 pursuant to the Act of August 18, 1941 (33

5 U.S.C. 701n) or The Robert T. Stafford Disas6 ter Relief and Emergency Act (42 U.S.C. 5121

7 and following).

8 ‘‘(7) Notwithstanding paragraphs (1) through

9 (4), a person shall not be liable for more than 10

10 percent of total response costs at a facility, in aggre11 gate, to the extent the person is liable solely under

12 paragraph (3) or (4) of this subsection, and the ar13 rangement for disposal, treatment, or transport for

14 disposal or treatment, or the acceptance for trans15 port for disposal or treatment, involved only munici16 pal solid waste or sewage sludge. In any case in

17 which more than one person at a facility comes with18 in the coverage of this paragraph, the 10 percent

19 limitation on liability shall apply to the aggregate li20 ability of all such persons. Such limitation on liabil21 ity shall apply only if either the acts or omissions

22 giving rise to liability occurred before the date occur23 ring 36 months after enactment of this paragraph,

24 or the person asserting the limitation institutes or

25 participates in a qualified household hazardous
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1 waste collection program within the meaning of sec2 tion 101(43).

3 ‘‘(8)(A) Notwithstanding paragraphs (1)

4 through (4) of this subsection, the liability of a per5 son who does not impede the performance of re6 sponse actions or natural resource restoration with

7 respect to a release or threatened release from a ves8 sel or facility shall be limited to the lesser of the fair

9 market value of the vessel or facility or the actual

10 proceeds of the sale of the vessel or facility received

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

12 solely on the person’s status under paragraph (1) as

13 owner of the vessel or facility if the person—

14 ‘‘(i) holding title, either outright or in

15 trust, to the vessel or facility is an organization

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

17 Revenue Code of 1986 and exempt from tax

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

19 such title as a result of a charitable donation

20 that qualifies under sections 170, 2055, or

21 2522 of such Code;

22 ‘‘(ii) exercised due care with respect to the

23 hazardous substance concerned, including pre24 cautions against foreseeable acts of third par25 ties, taking into consideration the characteris-
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1 tics of such hazardous substance, in light of all

2 relevant facts and circumstances;

3 ‘‘(iii) did not cause or contribute to the re4 lease or threat of release; and

5 ‘‘(iv) acquired the real property on which

6 the facility concerned is located, or acquired the

7 vessel, after disposal or placement of the haz8 ardous substance took place.

9 ‘‘(B) At any facility to which the provisions of

10 this paragraph apply, the owner or operator of the

11 vessel or facility within the meaning of paragraph

12 (1) shall include any person who owned or operated

13 the facility immediately prior to the person described

14 in subparagraph (A).

15 ‘‘(9) A person who owns or operates real prop16 erty that is contiguous to or otherwise situated with

17 respect to real property on which there has been a

18 release of a hazardous substance and that is or may

19 be contaminated by the release shall not be consid20 ered an owner or operator of a facility under para21 graph (1)(A) solely by reason of such contamination

22 if such person establishes by a preponderance of the

23 evidence that—

24 ‘‘(A) such person exercised due care with

25 respect to the hazardous substance, taking into
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1 consideration the characteristics of such haz2 ardous substance, in light of all relevant facts

3 and circumstances;

4 ‘‘(B) such person took precautions against

5 foreseeable acts or omissions that resulted in

6 the release and the consequences that could

7 foreseeably result from such acts or omissions;

8 ‘‘(C) such person did not cause or contrib9 ute to the release; and

10 ‘‘(D) such person provides full cooperation,

11 assistance, and facility access to persons au12 thorized to conduct response actions at the fa13 cility, including the cooperation and access nec14 essary for the installation, integrity, operation,

15 and maintenance of any complete or partial re16 sponse action at the facility.

17 The President may issue assurances of no enforce18 ment action under this Act to such person and may

19 grant such person protection against cost recovery

20 and contribution actions pursuant to section

21 113(f).’’.

22 (b) PROSPECTIVE PURCHASER AND WINDFALL

23 LIEN.—Section 107 is amended by inserting after sub24 section (m) the following new subsection:
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1 ‘‘(n) PROSPECTIVE PURCHASER AND WINDFALL

2 LIEN.—(1) In any case in which there are unrecovered

3 response costs at a facility for which an owner of the facil4 ity is not liable by reason of subsection (a)(6)(C), and the

5 conditions described in paragraph (2) are met, the United

6 States shall have a lien upon such facility for such unre7 covered costs. Such lien—

8 ‘‘(A) shall not exceed the increase in fair mar9 ket value of the property attributable to the response

10 action at the time of a subsequent sale or other dis11 position of property;

12 ‘‘(B) shall arise at the time costs are first in13 curred by the United States with respect to a re14 sponse action at the facility;

15 ‘‘(C) shall be subject to the requirements for

16 notice and validity established in paragraph (3) of

17 subsection (l); and

18 ‘‘(D) shall continue until the earlier of satisfac19 tion of the lien or recovery of all response costs in20 curred at the facility.

21 ‘‘(2) The conditions referred to in paragraph (1) are

22 the following:

23 ‘‘(A) A response action for which there are un24 recovered costs is carried out at the facility.
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1 ‘‘(B) Such response action increases the fair

2 market value of the facility above the fair market

3 value of the facility that existed within six months

4 before the response action was taken.’’.

5 ‘‘(3) No lien under this section shall arise (A) with

6 respect to property for which the property owner preceding

7 the first bona fide prospective purchaser is not a liable

8 party or has resolved its liability under this Act, or (B)

9 where an audit or inquiry required under section

10 101(39)(B) by an environmental professional certified

11 under section 612 of the Superfund Reform Act of 1994

12 gives the bona fide prospective purchaser no knowledge or

13 reason to know of the release of hazardous substances.’’.

14 SEC. 404. LIABILITY.

15 (a) LIABILITY.—Section 107(a) (42 U.S.C. 9607(a))

16 (as amended by section 403) is further amended by adding

17 the following new paragraph at the end thereof:

18 ‘‘(10) The Administrator shall calculate the En19 vironmental Protection Agency response action over20 sight costs for which potentially responsible parties

21 are liable under this section (pursuant to paragraph

22 (4)(A)) on a national basis as a percentage of total

23 response costs incurred by potentially responsible

24 parties (in this paragraph referred to as the ‘na25 tional oversight rate’). The calculation shall be based
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1 on data comparing oversight expenditures of the En2 vironmental Protection Agency to estimated or ac3 tual response costs incurred by potentially respon4 sible parties. The Administrator shall periodically re5 view and update the national oversight rate. In no

6 case shall the rate exceed 10 percent of total re7 sponse costs incurred by potentially responsible par8 ties. The national oversight rate shall be applied to

9 all settlements under section 130.’’.

10 (b) POLLUTANT AND CONTAMINANT LIABILITY.—(1)

11 Section 107(a) (42 U.S.C. 6907A(a)) (as amended by sub12 section (a)) is further amended by adding at the end the

13 following new paragraph:

14 ‘‘(11) When the President responds under the

15 authority of section 104(a)(1)(B) at facilities on the

16 National Priorities List, liability for response costs

17 under this section for pollutants and contaminants

18 shall be identical to that for hazardous substances

19 only if such pollutants and contaminants (A) con20 stitute an imminent and substantial danger to

21 human health, and (B) are not associated with the

22 production or extraction of any hydrocarbon, includ23 ing natural gas, petroleum, crude oil, or any fraction

24 thereof.’’.
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1 (2) Such section is further amended by inserting ‘‘or

2 pollutant or contaminant’’ after ‘‘hazardous substance’’

3 and ‘‘hazardous substances’’ each place they appear in

4 subsection (b), paragaphs (1) and (2) of subsection (c),

5 paragraphs (1) and (2) of subsection (d), subsection (i),

6 subsection (j), and paragraph (1)(B) of subsection (k).

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

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

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

10 any response costs incurred by the United States as

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

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

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

14 follows through the end of the sentence and insert15 ing ‘‘up to three times the amount of such response

16 costs.’’.

17 (d) CLARIFICATION OF COMMON CARRIER LIABIL18 ITY.—Section 107(b)(3) is amended by striking out ‘‘from

19 a published tariff and acceptance for’’ and inserting ‘‘ex20 clusively from a contract for’’.

21 (e) SMALL BUSINESS CONSTRUCTION CONTRAC22 TORS.—Section 107 is amended by adding at the end the

23 following:

24 ‘‘(o) SMALL BUSINESS CONSTRUCTION CONTRAC25 TORS.—There shall be no liability under subsection (a) of
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1 this section based solely on a person’s construction activi2 ties at a facility if such person can demonstrate by a pre3 ponderance of evidence that—

4 ‘‘(1) such construction activities were specifi5 cally directed by and carried out in accordance with

6 a contract with an owner or operator of the facility;

7 and

8 ‘‘(2) the person is a small business construction

9 contractor as defined by section 101(49).’’.

10 SEC. 405. CIVIL PROCEEDINGS.

11 (a) PETITIONS.—Section 113(a) (42 U.S.C. 9613(a))

12 is amended as follows:

13 (1) By striking ‘‘upon application by any inter14 ested person’’ and inserting ‘‘by any interested per15 son through the filing of a petition for review’’.

16 (2) By striking ‘‘application shall be made’’,

17 and inserting ‘‘petition shall be filed’’.

18 (b) PERIOD IN WHICH ACTION MAY BE BROUGHT.—

19 Section 113(g) (42 U.S.C. 9613(g)) is amended by strik20 ing paragraphs (2) and (3) and inserting in lieu thereof

21 the following:

22 ‘‘(2) ACTIONS FOR RECOVERY OF COSTS.—(A)

23 Except as provided in subparagraph (C), an initial

24 action for recovery of costs referred to in section

25 107 must be commenced—
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1 ‘‘(i) for a removal action, within 3 years

2 after completion of all removal action taken

3 with respect to the facility, including off-site

4 disposal of any removed materials, except that

5 if physical on-site construction of the remedial

6 action is initiated within 3 years after the com7 pletion of all removal action taken with respect

8 to the facility, costs incurred for removal action

9 may be recovered in a cost recovery action

10 brought under clause (ii); and

11 ‘‘(ii) for a remedial action, within 6 years

12 after initiation of physical on-site construction

13 of the remedial action.

14 ‘‘(B) In any such action described in this para15 graph, the court shall enter a declaratory judgment

16 on liability for response costs or damages that will

17 be binding in such action or in any subsequent ac18 tion or actions to recover further response costs or

19 damages. A subsequent action or actions under sec20 tion 107 for further response costs at the vessel or

21 facility may be maintained at any time during the

22 response action, but must be commenced no later

23 than 3 years after the date of completion of all re24 sponse action. Except as otherwise provided in this

25 paragraph, an action may be commenced under sec-
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1 tion 107 for recovery of costs at any time after such

2 costs have been incurred.

3 ‘‘(C) An action by any potentially responsible

4 party against another potentially responsible party

5 for recovery of any response costs or damages must

6 be commenced within the later of—

7 ‘‘(i) the time limitations set forth in sub8 paragraph (A); or

9 ‘‘(ii) where recovery is sought for costs or

10 damages paid pursuant to a judgment or settle11 ment, 3 years after—

12 ‘‘(I) the date of judgment in any ac13 tion under this Act for recovery of such

14 costs or damages, or

15 ‘‘(II) the date of any administrative

16 order or judicial settlement for recovery of

17 the costs or damages paid or incurred pur18 suant to such a settlement.

19 ‘‘(3) CLAIMS BY THE UNITED STATES OR

20 STATES.—Claims by the United States under section

21 106 and claims by the United States or a State

22 under section 107(a) shall not be deemed compul23 sory counterclaims in an action against the United

24 States or a State seeking response costs, contribu-
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1 tion, damages, or any other claim by any person

2 under this Act.’’.

3 (c) JUDICIAL REVIEW.—Section 113(j)(1) (42 U.S.C.

4 9613(j)(1)) is amended by striking ‘‘or ordered by the

5 President’’ and inserting ‘‘or selected by the President

6 pursuant to this Act, or ordered or sought by the Presi7 dent,’’.

8 SEC. 406. LIMITATIONS ON CONTRIBUTION ACTIONS.

9 Section 113(f) (42 U.S.C. 9613(f)) is amended as fol10 lows:

11 (1) By amending paragraph (1) as follows:

12 (A) By striking ‘‘Any person’’ in the first

13 sentence and inserting ‘‘Except as provided in

14 paragraph (4), any person who is liable or po15 tentially liable under section 107(a)’’.

16 (B) By striking ‘‘, during or following any

17 civil action under section 106 or under section

18 107(a).’’ and inserting ‘‘in a claim asserted

19 under section 107(a).’’.

20 (C) In the second sentence, by striking

21 ‘‘this section’’ and inserting ‘‘section 107(a),

22 this section,’’.

23 (D) By striking the sentence beginning

24 with ‘‘Nothing in this subsection’’.
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1 (2) By amending paragraph (2) to read as fol2 lows:

3 ‘‘(2) SETTLEMENTS.—A person who has re4 solved its liability to the United States in an admin5 istrative or judicially approved settlement shall not

6 be liable for contribution or any other claims by any

7 person other than a State acting under section

8 107(a)(4)(A) (and not as a potentially responsible

9 party) regarding response actions, response costs, or

10 damages addressed in the settlement. A person who

11 has resolved its liability to a State or an Indian tribe

12 in an administrative or judicially approved settle13 ment shall not be liable for contribution or any other

14 claims by persons other than the United States Gov15 ernment acting under section 107(a)(4)(A) (and not

16 as a potentially responsible party) regarding re17 sponse costs or damages addressed in the settlement

18 for which the State or Indian tribe has a claim

19 under this title. Such settlement does not discharge

20 any other potentially responsible persons unless its

21 terms so provide, but it reduces the potential liabil22 ity of such other persons by the amount of the set23 tlement. The protection afforded by this subsection

24 shall include protection against claims, under Fed25 eral or State law, that may be asserted against the
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1 settling party for recovery of response costs or dam2 ages incurred or paid by another person, if such

3 costs or damages are addressed in the settlement,

4 but shall not include protection against claims based

5 on contractual indemnification or other express con6 tractual agreements to pay such costs or damages.’’.

7 (3) By adding at the end the following new

8 paragraph:

9 ‘‘(4) LIMITATIONS ON CONTRIBUTION AC10 TIONS.—(A) There shall be no right of contribution

11 under this subsection in any of the following cir12 cumstances:

13 ‘‘(i) The person asserting the right of con14 tribution has waived the right in a settlement

15 pursuant to this Act.

16 ‘‘(ii) The person from whom contribution

17 is sought is not liable under this Act.

18 ‘‘(iii) The person from whom contribution

19 is sought has entered into a settlement with the

20 United States pursuant to section 122(g), with

21 respect to matters addressed in that settlement.

22 ‘‘(B) Any person who commences an action for

23 contribution shall be liable to the person against

24 whom the claim of contribution is brought for all

25 reasonable costs of defending against the claim, in-
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1 cluding all reasonable attorneys’ and expert witness

2 fees, if—

3 ‘‘(i) the action is barred by subparagraph

4 (A);

5 ‘‘(ii) the action is brought against a person

6 who is protected from such suits pursuant to

7 section 113(f)(2) by reason of a settlement with

8 the United States; or

9 ‘‘(iii) the action is brought during the mor10 atorium pursuant to section 130.’’.

11 SEC. 407. SCOPE OF RULEMAKING AUTHORITY.

12 (a) IN GENERAL.—Section 115 (42 U.S.C. 9615) is

13 amended to read as follows:

14 ‘‘SEC. 115. PRESIDENTIAL DELEGATION AND ASSIGNMENT

15 OF DUTIES OR POWERS AND PROMULGATION

16 OF REGULATIONS.

17 ‘‘The President (or the Administrator where applica18 ble) is authorized to promulgate such regulations as the

19 President (or the Administrator where applicable) deems

20 necessary to carry out the provisions of this Act, and to

21 delegate and assign any duties or powers imposed upon

22 or assigned to him by this Act, including the authority

23 to promulgate regulations. The preceding sentence in24 cludes authority to clarify or interpret all terms and to

25 implement any provision of this Act.’’.
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1 (b) LENDER LIABILITY RULE.—(1) Effective on the

2 date of enactment of this section, the final rule issued by

3 the Administrator of the Environmental Protection Agen4 cy on April 29, 1992 (57 Fed. Reg. 18344), shall be

5 deemed to have been validly issued pursuant to the author6 ity of the Comprehensive Environmental Response, Com7 pensation, and Liability Act of 1980, and to have been

8 effective according to the final rule’s terms. No additional

9 administrative or judicial proceedings shall be necessary

10 with respect to such final rule.

11 (2) Notwithstanding section 113(a) of the Com12 prehensive Environmental Response, Compensation and

13 Liability Act of 1980, no court shall have jurisdiction to

14 review the final rule issued by the Administrator of the

15 Environmental Protection Agency on April 29, 1992 (57

16 Fed. Reg. 18344).

17 (3) Nothing in this subsection shall be construed to

18 limit the authority of the President or his delegate to

19 amend the final rule issued by the Administrator of the

20 Environmental Protection Agency on April 29, 1992 (57

21 Fed. Reg. 18344), in accordance with applicable provi22 sions of law.

23 SEC. 408. RESPONSE ACTION CONTRACTORS.

24 (a) CLARIFICATION OF RESPONSE ACTION CONTRAC25 TOR LIABILITY.—Section 119(a) (42 U.S.C. 9619(a)) is
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1 amended by inserting after paragraph (4) the following

2 new paragraph:

3 ‘‘(5) LIABILITY.—Any liability of a person

4 under this Act as a response action contractor aris5 ing solely from the performance by such person of

6 a response action contract at any facility shall be de7 termined solely in accordance with this section with

8 respect to such facility.’’.

9 (b) IMPLEMENTATION OF ALTERNATIVE OR INNOVA10 TIVE TECHNOLOGIES.—Section 119(a) (42 U.S.C.

11 9619(a)) is further amended by adding at the end the fol12 lowing:

13 ‘‘(6) IMPLEMENTATION OF ALTERNATIVE OR

14 INNOVATIVE TECHNOLOGIES.—No response action

15 contractor shall be liable under this Act solely as a

16 result of such contractor’s testing or implementation

17 of alternative or innovative treatment technologies

18 (as defined in section 311(b)) or alternative or inno19 vative containment technologies with respect to a re20 sponse action if use of the technology in connection

21 with the response action has been approved by the

22 authorized Federal regulatory agency or State regu23 latory agency acting under a contract or cooperative

24 agreement with the Administrator pursuant to sec25 tion 127. This paragraph shall not apply in the case
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1 of negligence, gross negligence, or intentional mis2 conduct by such contractor in implementing the ap3 proved technology, including any noncompliance with

4 the approved process for implementing the tech5 nology.’’.

6 (c) INDEMNIFICATION CLARIFICATION.—Section

7 119(c)(1) (42 U.S.C. 9619(c)(1)) is amended by inserting

8 ‘‘under Federal, State, or common law’’ after ‘‘any liabil9 ity’’.

10 (d) INDEMNIFICATION FOR THREATENED RE11 LEASES.—Section 119(c)(5)(A) (42 U.S.C.

12 9619(c)(5)(A)) is amended by inserting ‘‘or threatened re13 lease’’ after ‘‘release’’ each place it appears.

14 (e) CONSIDERATIONS.—Section 119(c) (42 U.S.C.

15 9619(c)) is amended by redesignating paragraphs (5), (6),

16 (7), and (8) as paragraphs (6), (7), (8), and (9), respec17 tively, and by inserting after paragraph (4) the following

18 new paragraph:

19 ‘‘(5) CONSIDERATIONS.—In exercising the

20 President’s discretion under this subsection whether

21 to provide an indemnification agreement, the Presi22 dent should consider the adequacy of competition in

23 response to solicitations, the availability of adequate

24 insurance at a fair and reasonable price (including

25 consideration of premium, policy terms, deductibles,
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1 policy coverage, limits, and renewal terms), applica2 ble statutes of limitation that may apply to actions

3 against response action contractors, and any other

4 factors the President considers relevant.’’.

5 (f) EXTENSION.—Section 119 (42 U.S.C. 9619) is

6 amended—

7 (1) in subsection (e)(2)(C) by striking ‘‘1996’’

8 and inserting ‘‘2000’’; and

9 (2) in subsection (g)(5) by striking ‘‘1995’’ and

10 inserting ‘‘1999’’.

11 SEC. 409. ENHANCEMENT OF SETTLEMENT AUTHORITIES.

12 Section 122 (42 U.S.C. 9622) is amended as follows:

13 (1) In subsection (b) by striking paragraph (3)

14 and redesignating paragraph (4) as paragraph (3).

15 (2) By adding the following new subparagraph

16 at the end of subsection (d)(1):

17 ‘‘(D) COMPLIANCE.—Any consent decree

18 shall require the parties to attempt expedi19 tiously to resolve disagreements concerning im20 plementation of the remedial action informally

21 with the appropriate Federal and State agen22 cies. Where the parties agree, the consent de23 cree may provide for administrative enforce24 ment. Each consent decree shall also contain

25 stipulated penalties for violations of the decree
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1 in an amount not to exceed $25,000 per day,

2 which may be enforced by either the President

3 or the State. Such stipulated penalties shall not

4 be construed to impair or affect the authority

5 of the court to order compliance with the spe6 cific terms of any such decree.’’.

7 (3) By amending subsection (e)—

8 (A) By inserting after paragraph (1)(C)

9 the following:

10 ‘‘(D) For each potentially responsible

11 party, the evidence that indicates that each ele12 ment of liability contained in section 107(a) is

13 present.’’.

14 (B) By striking paragraph (3).

15 (C) By redesignating paragraphs (4) and

16 (5) as paragraphs (3) and (4), respectively.

17 (4) By adding at the end of subsection (g)(1)

18 the following: ‘‘The President may waive any condi19 tion or requirement of subparagraph (B), for a per20 son liable as an owner under section 107(a)(1), if

21 not more than a de minimus amount of any hazard22 ous substance was released as a result of the genera23 tion, transportation, storage, treatment, or disposal

24 of hazardous substances at the facility by the owner

25 and persons affiliated with the owner after the
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1 owner took title, or if the owner and persons affili2 ated with the owner caused or contributed to the re3 lease or threat of release of not more than a de

4 minimus amount of any hazardous substance at the

5 facility through any action or omission after the

6 owner took title.’’.

7 (5)(A) By transferring paragraph (6) of sub8 section (e) to the end of the section and redesignat9 ing such paragraph as subsection (o).

10 (B) In subsection (o) (as so transferred and re11 designated), by striking ‘‘remedial action’’ in both

12 places it appears and inserting ‘‘response action’’,

13 and by inserting ‘‘or the State under applicable law’’

14 before the period at the end.

15 (C) By adding the following new subsections at

16 the end thereof:

17 ‘‘(p) RETENTION OF FUNDS.—(1) If, as part of any

18 settlement agreement under this Act, a potentially respon19 sible party will be paying amounts to the President for

20 carrying out any response action, the President may retain

21 such amounts in interest bearing accounts, and use such

22 amounts, together with accrued interest, to conduct or en23 able other persons to conduct such response action.

24 ‘‘(2) If, as part of any settlement agreement for car25 rying out a response action under this Act, a potentially
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1 responsible party will be paying amounts to the President,

2 the Administrator is authorized to accept ownership of a

3 financial instrument running irrevocably to the benefit of

4 the United States to conduct, or enable other persons to

5 conduct, such response actions. For the purposes of this

6 paragraph, the term ‘financial instrument’ means an an7 nuity contract, funding agreement, or similar instrument

8 acceptable to the Secretary of the Treasury, that is pur9 chased by one or more potentially responsible parties, and

10 has a defined schedule of periodic payments which coin11 cides with the obligations set forth in the settlement agree12 ment. Periodic payments under such a financial instru13 ment will be made to the owner, or as the owner directs,

14 for response costs at the facility which is the subject of

15 the settlement agreement.

16 ‘‘(q) CHALLENGE TO COST RECOVERY COMPONENT

17 OF SETTLEMENT.—Notwithstanding the limitations on re18 view in section 113(h), and except as provided in sub19 section (g) of this section, a person whose potential claim

20 for response costs or contribution is limited as a result

21 of contribution protection afforded by an administrative

22 settlement under this section may challenge the cost recov23 ery component of such settlement. Such a challenge may

24 be made only by filing a complaint against the Adminis25 trator in the United States District Court within 60 days
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1 after such settlement becomes final. Venue shall lie in the

2 district in which the principal office of the appropriate re3 gion of the Environmental Protection Agency is located.

4 Any review of an administrative settlement shall be limited

5 to the administrative record, and the settlement shall be

6 upheld unless the objecting party can demonstrate on that

7 record that the decision of the President to enter into the

8 administrative settlement was arbitrary, capricious, or

9 otherwise not in accordance with law.

10 ‘‘(r) UNSUCCESSFUL CHALLENGERS LIABLE FOR

11 ATTORNEY’S FEES.—Any party who challenges any settle12 ment entered into between the President and any poten13 tially responsible party under this Act, and who is not suc14 cessful in overturning or modifying the settlement, shall

15 be liable to the United States and any settling party for

16 all reasonable attorneys’ fees and costs incurred in defend17 ing the settlement.’’.

18 SEC. 410. PROFESSIONAL SERVICES.

19 Section 122 is amended by adding after subsection

20 (r) the following new subsection:

21 ‘‘(s) PROFESSIONAL SERVICES.—The Administrator

22 has the authority to use the procedures set forth in section

23 109(e) to obtain the services of neutral professionals to

24 assist in the conduct of settlement negotiations under this
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1 section, whether or not the neutral professional actually

2 participates in such negotiations.’’.

3 SEC. 411. FINAL COVENANTS.

4 Section 122(f) is amended as follows:

5 (1) By amending paragraph (1) to read as fol6 lows:

7 ‘‘(1) FINAL COVENANTS.—The President shall

8 offer potentially responsible parties who enter into

9 settlement agreements that are in the public interest

10 a final covenant not to sue concerning any liability

11 to the United States under this Act, including a cov12 enant with respect to future liability, for response

13 actions or response costs addressed in the settle14 ment, if all of the following conditions are met:

15 ‘‘(A) The settling party agrees to perform,

16 or there are other adequate assurances of the

17 performance of, a final remedial action author18 ized by the Administrator for the release or

19 threat of release that is the subject of the set20 tlement.

21 ‘‘(B) The remedial action does not provide

22 that any hazardous substances will remain at

23 the facility at concentrations above the protec24 tive concentration levels established pursuant to
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1 section 121(d) after the final remedial action is

2 completed.

3 ‘‘(C) The settlement agreement has been

4 reached prior to the commencement of litigation

5 against the settling party under section 106 or

6 107 of this Act with respect to this facility.

7 ‘‘(D) The settling party waives all con8 tribution rights against other potentially re9 sponsible parties at the facility.

10 ‘‘(E) The settling party pays a premium

11 that compensates for the risks of remedy fail12 ure; future liability resulting from unknown

13 conditions; unanticipated increases in the cost

14 of any uncompleted response action, unless the

15 settling party is performing the response action;

16 and, where applicable, the United States litiga17 tion risk as provided in section 130 with respect

18 to persons who have not resolved their liability

19 to the United States under this Act, unless all

20 parties have settled their liability to the United

21 States, or the settlement covers 100 percent of

22 the United States response costs. The President

23 shall have sole discretion to determine the ap24 propriate amount of any such premium, and

25 such determinations are committed to the
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1 President’s discretion. The President has dis2 cretion to waive or reduce the premium pay3 ment for persons who demonstrate an inability

4 to pay such a premium.

5 ‘‘(F) The settlement is otherwise accept6 able to the United States.’’.

7 (2) Paragraph (3) is amended to read as fol8 lows:

9 ‘‘(3) DISCRETIONARY COVENANTS.—For settle10 ments under this Act for which covenants under sec11 tion 122(f)(1) are not available, the President may,

12 in his discretion, provide any person with a covenant

13 not to sue concerning any liability to the United

14 States under this Act, if the covenant not to sue is

15 in the public interest. Such covenants shall be sub16 ject to the requirements of section 122(f)(5). The

17 President may include any conditions in such cov18 enant not to sue, including the additional condition

19 referred to in paragraph (5). In determining whether

20 such conditions or covenants are in the public inter21 est, the President shall consider the nature and

22 scope of the commitment by the settling party under

23 the settlement, the effectiveness and reliability of the

24 response action, the nature of the risks remaining at

25 the facility, the strength of evidence, the likelihood
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1 of cost recovery, the reliability of any response ac2 tion or actions to restore, replace, or acquire the

3 equivalent of injured natural resources, the extent to

4 which performance standards are included in the

5 order or decree, the extent to which the technology

6 used in the response action is demonstrated to be ef7 fective, and any other factors relevant to the protec8 tion of human health and the environment.’’.

9 (3) Such subsection (f) is amended by striking

10 paragraph (4) and redesignating paragraphs (5) and

11 (6) as paragraphs (4) and (5), respectively.

12 (4) Paragraph (2) is amended by striking ‘‘re13 medial’’ each place it appears and inserting ‘‘re14 sponse’’.

15 (5) Subparagraph (A) of paragraph (5) (as so

16 redesignated) is amended—

17 (A) by striking ‘‘remedial’’ and inserting

18 ‘‘response’’;

19 (B) by striking ‘‘paragraph (2)’’ in the

20 first sentence and inserting ‘‘paragraph (1) or

21 (2)’’;

22 (C) by striking ‘‘de minimis settlements’’

23 and inserting ‘‘de minimis and other expedited

24 settlements pursuant to subsection (g) of this

25 section’’; and
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1 (D) by striking ‘‘the President certifies

2 under paragraph (3) that remedial action has

3 been completed at the facility concerned’’, and

4 inserting ‘‘that the response action that is the

5 subject of the settlement agreement is se6 lected’’.

7 (6) Subparagraph (B) of paragraph (5) (as so

8 redesignated) is amended as follows:

9 (i) By striking ‘‘In extraordinary cir10 cumstances, the’’ and inserting ‘‘The’’.

11 (ii) By striking ‘‘those referred to in

12 paragraph (4) and’’.

13 (iii) By striking ‘‘if other terms,’’ and

14 inserting ‘‘, if the agreement containing

15 the covenant not to sue provides for pay16 ment of a premium to address possible

17 remedy failure or any releases that may re18 sult from unknown conditions, and if other

19 terms,’’.

20 (iv) By inserting at the end the fol21 lowing: ‘‘The President may, in his discre22 tion, waive or reduce the premium pay23 ment for persons who demonstrate an in24 ability to pay such a premium.’’.
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1 SEC. 412. EXPEDITED FINAL SETTLEMENTS.

2 Section 122 is amended as follows:

3 (1) Subsection (g) is amended by striking ‘‘(g)’’

4 and all that follows through the end of subparagraph

5 (A) of paragraph (1) and inserting in lieu thereof

6 the following:

7 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—

8 ‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET9 TLEMENT.—The President shall, as promptly as pos10 sible, offer to reach a final administrative or judicial

11 settlement with potentially responsible parties who,

12 in the judgment of the President, meet one or more

13 of the following conditions for eligibility for an expe14 dited settlement—

15 ‘‘(A) The potentially responsible party’s in16 dividual contribution of hazardous substances

17 at the facility is de minimis. The contribution

18 of hazardous substance to a facility by a poten19 tially responsible party is de minimis if both of

20 the following conditions are met:

21 ‘‘(i) The potentially responsible par22 ty’s volumetric contribution of materials

23 containing hazardous substances is mini24 mal in comparison to the total volumetric

25 contributions of materials containing haz26 ardous substances at the facility; such indi-
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1 vidual contribution is presumed to be mini2 mal if it is one percent or less of the total

3 volumetric contribution at the facility, un4 less the Administrator identifies a different

5 threshold based on site-specific factors.

6 ‘‘(ii) The potentially responsible par7 ty’s hazardous substances do not present

8 toxic or other hazardous effects that are

9 significantly greater than those of other

10 hazardous substances at the facility.’’.

11 (2) Subsection (g) is further amended by insert12 ing after subparagraph (B) of paragraph (1) the fol13 lowing:

14 ‘‘(C) The potentially responsible party’s li15 ability is based solely on paragraph (3) or (4)

16 of section 107(a), and the arrangement for dis17 posal, treatment, or transport for disposal or

18 treatment, or the acceptance for transport for

19 disposal or treatment, involved only municipal

20 solid waste or sewage sludge. The Adminis21 trator may offer to settle the aggregate liability

22 of generators and transporters of municipal

23 solid waste or sewage sludge whose liability is

24 limited pursuant to paragraph (7) of section
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1 107(a) for up to 10 percent of the total re2 sponse costs at the facility.

3 ‘‘(D)(i) The potentially responsible party is

4 a natural person, a small business, or a munici5 pality and can demonstrate to the United

6 States an inability or limited ability to pay re7 sponse costs. A party who enters into a settle8 ment pursuant to this subparagraph shall be

9 deemed to have resolved its liability under this

10 Act to the United States for all matters ad11 dressed in the settlement.

12 ‘‘(ii) For purposes of this subparagraph,

13 the following provisions apply:

14 ‘‘(I) In the case of a small business,

15 the President shall take into consideration

16 the ability to pay of the business, if re17 quested by the business. The term ‘ability

18 to pay’ means the President’s reasonable

19 expectation of the ability of the small busi20 ness to pay its total settlement amount

21 and still maintain its basic business oper22 ations. Such consideration shall include the

23 business’s overall financial condition and

24 demonstrable constraints on its ability to

25 raise revenues.
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1 ‘‘(II) Any business requesting such

2 consideration shall promptly provide the

3 President with all relevant information

4 needed to determine the business’s ability

5 to pay.

6 ‘‘(III) The business shall demonstrate

7 the amount of its ability to pay. If the

8 business employs fewer than 20 employees,

9 and has annual gross revenues of less than

10 $1,800,000 or a net profit margin of less

11 than 2 percent, the President shall perform

12 any analysis that may be required to dem13 onstrate the business’s ability to pay. The

14 President, in his discretion, may perform

15 such analysis for any other party or re16 quire such other party to perform the anal17 ysis.

18 ‘‘(IV) If the President determines that

19 a small business is unable to pay its total

20 settlement amount immediately, the Presi21 dent shall consider alternative payment

22 methods as may be necessary or appro23 priate. The methods to be considered may

24 include installment payments to be paid
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1 during a period of not to exceed 10 years

2 and the provision of in-kind services.

3 ‘‘(iii) For purposes of this subparagraph,

4 in the case of a municipal owner or operator of

5 a facility, the President shall consider, to the

6 extent that information is provided by the mu7 nicipality, the following factors:

8 ‘‘(I) the municipality’s general obliga9 tion bond rating and information about the

10 most recent bond issue for which the rat11 ing was prepared;

12 ‘‘(II) the amount of total available

13 funds (other than dedicated funds and

14 State assistance payments for remediation

15 of inactive hazardous waste sites);

16 ‘‘(III) the amount of total operating

17 revenues (other than obligated or encum18 bered revenues);

19 ‘‘(IV) the amount of total expenses;

20 ‘‘(V) the amounts of total debt and

21 debt service;

22 ‘‘(VI) per capita income;

23 ‘‘(VII) real property values;

24 ‘‘(VIII) unemployment information;

25 and
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1 ‘‘(IX) population information.

2 ‘‘(iv) Any municipality which is a

3 potantially responsible party may submit for

4 consideration by the President an evaluation of

5 the potential impact of the settlement on essen6 tial services that the municipality must provide,

7 and the feasibility of making delayed payments

8 or payments over time. If a municipality asserts

9 that it has additional environmental obligations

10 besides its potential liability under this Act,

11 then the municipality may create a list of the

12 obligations, including an estimate of the costs

13 of complying with such obligations.

14 ‘‘(v) Any municipality which is a

15 potantially responsible party may establish an

16 inability to pay through an affirmative showing

17 that such payment of its liability under this Act

18 would either—

19 ‘‘(I) create a substantial demonstrable

20 risk that the municipality would default on

21 existing debt obligations, be forced into

22 bankruptcy, be forced to dissolve, or be

23 forced to make budgetary cutbacks that

24 would substantially reduce current levels of

25 protection of public health and safety; or
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1 ‘‘(II) necessitate a violation of legal

2 requirements or limitations of general ap3 plicability concerning the assumption and

4 maintenance of fiscal municipal obliga5 tions.

6 ‘‘(vi) This subparagraph does not limit or

7 affect the President’s authority to evaluate any

8 person’s ability to pay or to enter into settle9 ments with any person based on that person’s

10 inability to pay.’’.

11 (3) Paragraphs (2) and (3) of subsection (g)

12 are amended to read as follows:

13 ‘‘(2) BASIS OF DETERMINATION.—Any person

14 who enters into a settlement pursuant to this sub15 section shall provide any information requested by

16 the President or by an allocator in accordance with

17 section 130(i)(1) or section 104(e) of this Act. The

18 determination of whether a person is eligible for an

19 expedited settlement shall be made on the basis of

20 all information available to the President at the time

21 the determination is made. Neither the President’s

22 determination as to the eligibility of a party that is

23 not a department, agency, or instrumentality of the

24 United States for settlement pursuant to this sec25 tion, nor the terms of the final settlement with such
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1 a party, shall be subject to judicial review. If the

2 President determines that a party is not eligible for

3 a settlement pursuant to this section, the President

4 shall explain the basis for that determination in

5 writing to any person who requests such a settle6 ment.

7 ‘‘(3) ADDITIONAL FACTORS RELEVANT TO SET8 TLEMENTS WITH MUNICIPALITIES.—In any settle9 ment with a municipality pursuant to this Act, the

10 President may take additional equitable factors into

11 account in determining an appropriate settlement

12 amount, including the limited resources available to

13 that party, and any in-kind services that the party

14 may provide to support the response action at the

15 facility. In considering the value of in-kind services,

16 the President shall consider the fair market value of

17 those services.’’.

18 (4) Subsection (g) is further amended—

19 (A) in paragraph (4), by striking

20 ‘‘$500,000’’ and inserting ‘‘$2,000,000’’; and

21 (B) by striking paragraph (5).

22 (5) Subsection (h) is amended as follows:

23 (A) By amending the heading to read as

24 follows: ‘‘AUTHORITY TO SETTLE CLAIMS FOR
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1 FINES, CIVIL PENALTIES, PUNITIVE DAMAGES,

2 AND COST RECOVERY.—’’.

3 (B) In paragraph (1)—

4 (i) In the first sentence, by striking

5 ‘‘costs incurred’’ and inserting ‘‘past and

6 future costs incurred or that may be in7 curred’’.

8 (ii) In the first sentence, by inserting

9 after ‘‘if the claim has not been referred to

10 the Department of Justice for further ac11 tion.’’ the following: ‘‘The head of any de12 partment or agency with the authority to

13 seek fines, civil penalties, or punitive dam14 ages under this Act may consider, com15 promise, and settle claims for any such

16 fines, civil penalties, or punitive damages

17 which may otherwise be assessed in civil

18 administrative or judicial proceedings if

19 the claim has not been referred to the De20 partment of Justice for further action. If

21 the total claim for fines, civil penalties, or

22 punitive damages exceeds $300,000, such

23 claim may be compromised and settled

24 only with the prior written approval of the

25 Attorney General.’’.
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1 (iii) In the second sentence, by strik2 ing ‘‘$500,000 (excluding interest), any

3 claim referred to in the preceding sen4 tence’’ and inserting ‘‘$2,000,000 (exclud5 ing interest), any claim for response costs

6 referred to in this subsection’’.

7 (C) By striking paragraph (4).

8 SEC. 413. ALLOCATION PROCEDURES.

9 Insert after section 129 the following new section:

10 ‘‘SEC. 130. ALLOCATION AT MULTIPARTY FACILITIES.

11 ‘‘(a) SCOPE.—

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

13 non-federally owned facility listed on the National

14 Priorities List involving 2 or more potentially re15 sponsible parties for which the President selects a

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

17 Administrator shall initiate the allocation process

18 under this section. This paragraph shall not apply to

19 remedial actions selected prior to such date.

20 ‘‘(2) PRE-INTRODUCTION RODS.—For each non21 federally owned facility listed on the National Prior22 ities List involving 2 or more potentially responsible

23 parties, for any remedial action selected by the

24 President before February 3, 1994, the Adminis25 trator shall initiate the allocation process under this
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1 section, if requested to do so by a potentially respon2 sible party which has resolved its liability to the

3 United States with respect to the remedial action or

4 which is performing the remedial action pursuant to

5 an order issued under section 106(a).

6 ‘‘(3) OTHER FACILITIES.—The Administrator,

7 as the Administrator deems appropriate, may initi8 ate the allocation process under this section for any

9 facility involving 2 or more potentially responsible

10 parties.

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

12 process under this section shall not apply to either

13 of the following:

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

15 final settlement, decree, or order that deter16 mines all liability or allocated shares of all po17 tentially responsible parties.

18 ‘‘(B) A facility at which all of the poten19 tially responsible parties are liable or potentially

20 liable as facility owners or operators pursuant

21 to section 107(a)(1) or (2).

22 ‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An allo23 cation under this section, shall apply to all remedial

24 actions selected by the President on or after Feb25 ruary 3, 1994, for a facility (but not to those reme-
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1 dial actions described in paragraph (2)), unless the

2 allocator determines that the allocation should ad3 dress only one or more of such remedial actions.

4 ‘‘(6) MULTIPLE FACILITIES.—Where appro5 priate, the Administrator may initiate a single allo6 cation process under this section for more than 1 fa7 cility.

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

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

10 section shall not be construed to require—

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

12 to this section; or

13 ‘‘(B) the conferral of reimbursement rights

14 pursuant to this section.

15 ‘‘(8) SETTLEMENT OFFERS AFTER COMMENCE16 MENT OF LITIGATION.—The provisions of this sec17 tion shall not apply to any offer of settlement made

18 after expiration of the moratorium period under sub19 section (b).

20 ‘‘(b) MORATORIUM ON COMMENCEMENT OR CON21 TINUATION OF SUITS.—

22 ‘‘(1) MORATORIUM.—No person may assert any

23 claim for response costs pursuant to section 107 of

24 this Act or commence any civil action seeking recov25 ery of any response costs in connection with a re-
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1 sponse action for which an allocation is required

2 under subsection (a)(1) or (2), or for which the Ad3 ministrator has initiated an allocation under sub4 section (a)(3), until 90 days after issuance of the

5 allocator’s report under subsection (h) or (m),

6 whichever is later.

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

8 for response costs pursuant to section 107 of this

9 Act or an action seeking recovery of response costs

10 in connection with a response action for which an al11 location is required under subsection (a)(1) or

12 (a)(2), or for which the Administrator has initiated

13 an allocation under subsection (a)(3), is pending—

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

15 Superfund Reform Act of 1994, or

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

17 the action or claim shall be stayed until 90 days

18 after the issuance of the allocator’s report under

19 subsection (h) or (m), unless the court determines

20 that a stay will result in manifest injustice.

21 ‘‘(3) STATUTE OF LIMITATIONS.—Any applica22 ble limitations period with respect to a cause of ac23 tion subject to paragraph (1) shall be tolled from the

24 earlier of the following until 180 days after the issu-
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1 ance of the allocator’s report under subsection (h) or

2 (m):

3 ‘‘(A) The date of listing of the facility on

4 the National Priorities List.

5 ‘‘(B) The commencement of the allocation

6 process pursuant to this section.

7 ‘‘(c) COMMENCEMENT OF ALLOCATION.—

8 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa9 cilities subject to this section, the Administrator

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

11 days after the commencement of the remedial inves12 tigation, initiate a thorough investigation and search

13 for all potentially responsible parties, using his au14 thorities under section 104. Any person may submit

15 information to the Administrator concerning any po16 tentially responsible party at the facility, and the

17 Administrator shall consider such information in

18 carrying out the responsible party search.

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

20 As soon as practicable after receipt of sufficient in21 formation, but not more than 12 months after the

22 commencement of the remedial investigation, the

23 Administrator shall take each of the following ac24 tions:
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1 ‘‘(A) The Administrator shall notify any

2 potentially responsible party who the Adminis3 trator determines is eligible for an expedited

4 final settlement in accordance with section

5 122(g)(1)(A) of its eligibility, based on informa6 tion available to the Administrator at the time

7 the determination is made. Any such informa8 tion that is not confidential shall, to the extent

9 practicable, be made available by the Adminis10 trator to the party at the time of the settlement

11 offer.

12 ‘‘(B) The Administrator shall submit a

13 written settlement offer to each party notified

14 under subparagraph (A) no later than 60 days

15 after such notification. The Administrator shall,

16 at the same time, make available to such party

17 upon request any nonconfidential information

18 related to the party’s settlement upon which the

19 Administrator based the settlement offer. If the

20 settlement offer is based in whole or in part on

21 confidential information, the Administrator

22 shall so advise such party.

23 ‘‘(3) PRELIMINARY NOTICE TO OTHER PAR24 TIES.—As soon as practicable after receipt of suffi25 cient information, but not later than 18 months
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1 after commencement of the remedial investigation,

2 the Administrator shall—

3 ‘‘(A) notify any party not previously noti4 fied under paragraph (2) who the Adminis5 trator determines is eligible for an expedited

6 final settlement in accordance with section

7 122(g)(1)(A) of its eligibility, based on informa8 tion available to the Administrator at the time

9 the determination is made;

10 ‘‘(B) issue a list of all potentially respon11 sible parties preliminarily identified by the Ad12 ministrator to all such parties;

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

14 section 117(d), of the list of potentially respon15 sible parties identified pursuant to subpara16 graphs (A) and (B) by the Administrator; and

17 ‘‘(D) make available all responses to the

18 Administrator’s information requests, as well as

19 other relevant information concerning the facil20 ity and potentially responsible parties, to the

21 notified parties, to the extent it is available to

22 the Administrator.

23 The Administrator shall not make available any

24 privileged or confidential information, except as oth25 erwise authorized by law. The Administrator shall
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1 take the actions specified in this paragraph within 9

2 months after the date of enactment of this section

3 for all facilities eligible for allocation under sub4 section (a)(1) or (a)(2) for which the responsible

5 party search required by a paragraph (1) was sub6 stantially complete prior to the date of the enact7 ment of this section.

8 ‘‘(4) STATUS OF PARTIES.—At the time of pro9 posing the list of potentially responsible parties

10 under paragraph (3), the Administrator shall—

11 ‘‘(A) identify parties that are eligible for

12 expedited settlement pursuant to section

13 122(g);

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

15 for such expedited settlement; or

16 ‘‘(C) determine that there is insufficient

17 information to ascertain whether or not the

18 party is eligible for such expedited settlement.

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

20 days after information has been made available pur21 suant to paragraph (3), the parties identified by the

22 Administrator and members of the affected commu23 nity shall have the opportunity to identify and nomi24 nate additional potentially responsible parties or oth25 erwise provide information relevant to the facility or
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1 such potentially responsible parties. This period may

2 be extended by the Administrator for an additional

3 30 days upon request of any person.

4 ‘‘(B) Any proposal for the addition of any po5 tentially responsible party with respect to a facility

6 shall be supported by a statement setting forth the

7 basis in law and fact for the nominating party’s be8 lief that the additional nominated party is poten9 tially liable under this Act and by full disclosure to

10 the Administrator and to the nominated party at the

11 same time of all available information concerning

12 that party’s liability under this Act and that party’s

13 contribution of hazardous substances to the facility.

14 The nominated party may submit to the Adminis15 trator information relating to its inclusion as an ad16 ditional potentially responsible party within 45 days

17 of the receipt of such information.

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

19 Within 60 days after the end of the period specified

20 in paragraph (5)(A) for the proposal of additional

21 parties, the Administrator shall—

22 ‘‘(i) issue a list of parties subject to the al23 location process (hereinafter referred to in this

24 section as the ‘allocation parties’);
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1 ‘‘(ii) identify in writing, as to each of the

2 proposed additional parties, which parties the

3 Administrator has determined, in the Adminis4 trator’s sole discretion—

5 ‘‘(I) to be eligible for expedited settle6 ment pursuant to section 122(g),

7 ‘‘(II) not to be eligible for such expe8 dited settlement, and

9 ‘‘(III) for whom insufficient informa10 tion exists to determine whether or not the

11 party is eligible for such expedited settle12 ment; and

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

14 brief explanation) those parties as to which the

15 Administrator has determined, in the Adminis16 trator’s sole discretion, that there is an inad17 equate basis in law or fact to determine that

18 the party is liable under this Act.

19 The Administrator shall consider, when making de20 terminations under this subparagraph, all available

21 information provided pursuant to section

22 130(c)(5)(B). For each party identified under clause

23 (iii), the Administrator shall further identify whether

24 that party, if liable, would be eligible for an expe25 dited settlement.
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1 ‘‘(B) At the time of issuance of the list of par2 ties provided for in subparagraph (A), the Adminis3 trator shall provide the potentially responsible par4 ties who received notice under this paragraph with

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

6 United States and who the Administrator deter7 mines, in the Administrator’s sole discretion, are

8 qualified to perform an allocation at the facility.

9 ‘‘(C) De minimis parties the Administrator

10 identifies as potentially liable but eligible for expe11 dited settlement pursuant to this section, shall not

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

13 (except to the extent required to determine the or14 phan share pursuant to subsection (h)), unless that

15 party fails to reach an agreement with the President

16 on settlement terms within 30 days after the offer.

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

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

19 a party is liable based on the information presented

20 by the nominating party or otherwise available to

21 the Administrator, the determination shall have the

22 following effect:

23 ‘‘(i) With respect to a party that the Ad24 ministrator has determined to be—
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1 ‘‘(I) exempt from liability pursuant to

2 section 107(a)(6)(A) or (B); or

3 ‘‘(II) not liable on some other basis

4 but who, if liable, would be eligible for an

5 expedited settlement,

6 the Administrator’s determination shall mean

7 that the party shall not be subject to, and shall

8 not be assigned a share in, the allocation.

9 ‘‘(ii) With respect to all other parties, the

10 Administrator’s determination shall be accorded

11 deference by the allocator. For such parties the

12 allocator shall consider the Administrator’s de13 termination together with the allocation factors

14 listed in subsection (h)(2).

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

16 purposes of this subsection shall not be subject to

17 judicial review, nor shall any determination or expla18 nation provided for purposes of the allocation be ad19 missible for any purpose in an action commenced by

20 the United States against the party that is the sub21 ject of the determination or any other party.

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

23 any party the allocator determines should receive

24 such a share in consideration of the allocation fac-
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1 tors including the Administrator’s determinations

2 under subparagraph (C).

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

4 pursuant to the nomination of a potentially respon5 sible party pursuant to subsection (c)(5), but as6 signed a zero share by the allocator, that party’s

7 costs of participating in the allocation (including

8 reasonable attorneys’ fees) shall be borne by the

9 party who proposed the addition of the party to the

10 allocation.

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

12 30 days after the final list of parties is issued pursuant

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

14 submit a written settlement offer to any party identified

15 as a potentially responsible party pursuant to this section

16 who the Administrator has determined to be eligible for

17 an expedited final settlement in accordance with section

18 122(g)(1)(A), and who has not entered into a settlement

19 with the United States regarding the matters being ad20 dressed by the allocation. The Administrator shall, at the

21 same time, make available to such party upon request any

22 nonconfidential information related to the party’s settle23 ment.

24 ‘‘(2) The President shall not include any premia pur25 suant to section 122(g) in a settlement offer made pursu-
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1 ant to paragraph (1) more than 60 days after the date

2 the offer is required to be made pursuant to paragraph

3 (1) to a party that is a small business, as defined in sec4 tion 101(47).

5 ‘‘(3) If a party is a small business which the Presi6 dent has determined is eligible for a settlement pursuant

7 to section 122(g)(1)(A), and the party is not offered a set8 tlement by the President within 120 days after the date

9 the offer is required to be made pursuant to paragraph

10 (1), the party shall have no further liability under this Act

11 for the costs of response actions at the facility for which

12 the allocation is being performed, unless the President de13 termines that there is just cause for the delay and such

14 delay is due to factors outside the President’s control.

15 ‘‘(e) SELECTION OF ALLOCATOR.—

16 ‘‘(1) PROPOSAL OF ADDITIONAL CAN17 DIDATES.—Any party identified by the Adminis18 trator under subsection (c) may propose any person

19 whom such party deems qualified for selection as an

20 allocator in addition to those proposed from the list

21 provided under subsection (c)(6)(B).

22 ‘‘(2) SELECTION OF ALLOCATOR BY ALLOCA23 TION PARTIES.—The allocation parties shall select

24 an allocator from the list of allocators proposed by

25 the Administrator or under paragraph (1) by the fol-
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1 lowing voting method with each allocation party hav2 ing a single vote:

3 ‘‘(A) Each allocation party, with the Ad4 ministrator voting for the identified but insol5 vent or defunct parties, shall numerically rank

6 the individuals on the final list of proposed

7 allocators, with a ranking of 1 indicating first

8 preference, and forward its vote to the Adminis9 trator within 30 days of the issuance of the

10 final list of allocators pursuant to subsection

11 (c)(6)(B).

12 ‘‘(B) The proposed allocator who receives

13 the lowest combined numerical score, taking

14 into account all votes submitted to the Adminis15 trator pursuant to clause (i), and who agrees to

16 serve as allocator, shall be the allocator.

17 ‘‘(3) PEREMPTORY STRIKE.—The Adminis18 trator may reject any allocator selected by the allo19 cation parties if the proposed allocator is not on the

20 list provided under paragraph (6)(B) of subsection

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

22 parties shall select the allocator in order of numeri23 cal ranking in accordance with this subsection.

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

25 the allocation parties do not select an allocator pur-
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1 suant to this subsection within 30 days after receipt

2 of the list provided under paragraph (2), the Admin3 istrator shall select the allocator, except that if the

4 Administrator rejects 4 or more allocators selected

5 by the allocation parties, the Administrator shall ini6 tiate a new allocator selection process under this sec7 tion.

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

9 the Administrator shall enter into a contract with the se10 lected allocator for the provision of allocation services for

11 the facility concerned, and immediately make available all

12 responses to information requests, as well as other rel13 evant information concerning the facility and potentially

14 responsible parties, to the allocator. The Administrator

15 has the authority to use the procedures set forth in section

16 109(e) to obtain the services of a neutral professional for

17 use in conducting allocation procedures under this section,

18 whether or not the neutral professional actually conducts

19 such allocation procedures.

20 ‘‘(g) POTENTIALLY RESPONSIBLE PARTY SETTLE21 MENT.—At any time prior to the issuance of an allocation

22 report as described in subsection (h), any group of poten23 tially responsible parties may submit to the allocator a pri24 vate allocation. If such private allocation meets all of the
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1 following criteria, the allocator shall promptly adopt it as

2 the allocation report:

3 ‘‘(1) The private allocation is a binding alloca4 tion of 100 percent of the past, present, and future

5 recoverable response costs at issue under subsection

6 (a).

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

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

9 a signatory to the proposed private allocation or, in

10 the case of any orphan share, unless the United

11 States (and, where applicable, the State) is a signa12 tory to the proposed private allocation.

13 ‘‘(3) The signatories to the proposed private al14 location waive their contribution rights with respect

15 to the remedial action against all other potentially

16 responsible parties at the facility.

17 ‘‘(h) ALLOCATION DETERMINATION.—

18 ‘‘(1) SETTLEMENT AND ALLOCATION RE19 PORT.—Following issuance of the list of allocation

20 parties pursuant to subsection (c)(6)(A)(i), the allo21 cator shall initiate and conduct an allocation process

22 that shall culminate in the issuance of a written re23 port, with a nonbinding, equitable allocation of the

24 percentage shares of responsibility of all allocation

25 parties, including the orphan share, for response
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1 costs at the facility, and provide such report to the

2 allocation parties and the Administrator. The allo3 cator shall provide the report to the allocation par4 ties and the Administrator within 180 days of the is5 suance of the list of allocation parties pursuant to

6 subsection (c)(6) or the date of the contract for allo7 cation service pursuant to subsection (f), whichever

8 is later. Upon request, for good cause shown, the

9 Administrator may grant the allocator additional

10 time to complete the allocation, not to exceed 90

11 days.

12 ‘‘(2) FACTORS IN THE ALLOCATION.—The allo13 cator shall prepare a nonbinding, equitable allocation

14 of percentage shares for the facility based on the fol15 lowing factors:

16 ‘‘(A) The amount of hazardous substances

17 contributed by each allocation party.

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

19 substances contributed by each allocation party.

20 ‘‘(C) The mobility of hazardous substances

21 contributed by each allocation party.

22 ‘‘(D) The degree of involvement of each al23 location party in the generation, transportation,

24 treatment, storage, or disposal of the hazardous

25 substance.
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1 ‘‘(E) The degree of care exercised by each

2 allocation party with respect to the hazardous

3 substance, taking into account the characteris4 tics of the hazardous substance.

5 ‘‘(F) The cooperation of each allocation

6 party in contributing to the response action and

7 in providing complete and timely information

8 during the allocation process.

9 ‘‘(G) Such other factors that the Adminis10 trator determines are appropriate by published

11 guidance. Any such guidance shall be consistent

12 with this Act and shall be published only after

13 notice and opportunity for public comment. An

14 alleged failure of the allocator to consider 1 or

15 more additional factors set forth in such guid16 ance shall not be deemed unlawful conduct or

17 procedural error for purposes of subsection

18 (l)(2) or (3).

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

20 allocator shall conduct the allocation process and

21 render a decision based solely on the provisions of

22 this section, including the allocation factors specified

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

24 be afforded an opportunity to be heard (either orally

25 or in writing, at the allocator’s discretion), and an
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1 opportunity to comment on a draft allocation report.

2 The allocator shall not be required to respond to

3 comments.

4 ‘‘(4) IDENTIFICATION OF ORPHAN SHARES.—

5 ‘‘(A) COMPONENTS OF ORPHAN SHARE.—

6 The allocator may determine that a percentage

7 share for the facility is specifically attributable

8 to an orphan share. The orphan share shall

9 consist only of the following:

10 ‘‘(i) Shares attributable to hazardous

11 substances that the allocator determines,

12 on the basis of information presented, to

13 be specifically attributable to identified but

14 insolvent or defunct allocation parties who

15 are not affiliated with any viable allocation

16 party.

17 ‘‘(ii) The difference between the ag18 gregate shares that the allocator deter19 mines, on the basis of the information pre20 sented, is specifically attributable to alloca21 tion parties that are contributors of munic22 ipal solid waste subject to the limitations

23 in section 107(a)(7), and the share actu24 ally assumed by those parties in any settle25 ments with the United States pursuant to
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1 section 122(g), including the fair market

2 value of in-kind services provided by a mu3 nicipality.

4 ‘‘(iii) The difference between the ag5 gregate share that the allocator deter6 mines, on the basis of information pre7 sented, to be specifically attributable to al8 location parties with a limited ability to

9 pay response costs and the share actually

10 assumed by those parties in any settle11 ments with the United States pursuant to

12 section 122(g).

13 ‘‘(iv) Shares that the allocator deter14 mines, on the basis of the information pre15 sented, are specifically attributable to par16 ties that, solely due to the operation of

17 subsection (d)(3), have no liability under

18 this Act for the costs of response actions

19 at the facility for which the allocation is

20 being performed.

21 ‘‘(B) UNATTRIBUTABLE SHARES.—Shares

22 attributable to hazardous substances that the

23 allocator cannot attribute to any identified

24 party shall be distributed among the allocation

25 parties, including the orphan share.
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1 ‘‘(i) ANSWERS AND CERTIFICATIONS TO

2 ALLOCATOR’S INFORMATION REQUESTS.—

3 ‘‘(1) SUBPOENAS AND INFORMATION RE4 QUESTS.—Where necessary to assist in determining

5 the allocation of shares, the allocator may request

6 information or documents from any allocation party

7 in accordance with paragraphs (2) or (5) of section

8 104(e), and require by subpoena the attendance of

9 persons or the production of documents, or other in10 formation in accordance with section 104(e)(7). Any

11 allocation party to whom a request is directed shall

12 include in the response a certification by a respon13 sible representative or authorized representative that

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

15 allocator may also request the Administrator to uti16 lize the authorities of paragraph (2) and to exercise

17 any information-gathering authority of the Adminis18 trator under this Act.

19 ‘‘(2) POWERS OF THE ALLOCATOR.—In addi20 tion to the information-gathering authority set forth

21 in paragraph (1), the allocator shall have the au22 thority to schedule meetings and require the attend23 ance of allocation parties at such meetings; to re24 quire that allocation parties wishing to present simi25 lar legal or factual positions consolidate their pres-
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1 entations; to obtain or employ support services, in2 cluding secretarial and clerical services, computer

3 support services, and legal and investigative services;

4 and to take any other actions necessary to conduct

5 a fair, efficient, and impartial allocation process.

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

7 ‘‘(1) CIVIL PENALTIES.—Where the allocator is8 sues an administrative subpoena or information re9 quest pursuant to subsection (i), a party who unrea10 sonably fails to comply with the subpoena or request

11 shall be subject to a civil penalty not to exceed

12 $25,000 for each day of noncompliance.

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

14 enforcement of an administrative subpoena or infor15 mation request pursuant to subsection (i)(1), and

16 shall seek such enforcement by requesting that the

17 Attorney General commence an action to enforce the

18 subpoena or request. The Attorney General, within

19 30 days after receiving such request from the allo20 cator, shall—

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

22 General will commence an action to enforce the

23 subpoena or information request;

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

25 General will not seek enforcement of the sub-
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1 poena or request because the subpoena or re2 quest is barred by law or would result in annoy3 ance, embarrassment, oppression, or undue bur4 den or expense to the party to whom it was is5 sued; or

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

7 General has insufficient information on which

8 to determine whether an enforcement action is

9 appropriate.

10 ‘‘(3) FAILURE OF ATTORNEY GENERAL TO RE11 SPOND.—If the Attorney General fails to provide

12 any response to the allocator within 30 days of a re13 quest for enforcement of a subpoena or information

14 request, the allocator may retain counsel to com15 mence a civil action to enforce the subpoena or in16 formation request.

17 ‘‘(4) PENALTY.—If the Attorney General or al18 locator prevails in an action to enforce an allocator’s

19 subpoena or information request, the party who

20 failed to comply shall be subject to a sanction that

21 may include civil penalties as provided in paragraph

22 (1). The court shall require such party to pay the

23 reasonable expenses, including attorney’s fees,

24 caused by the failure to comply, unless the court

25 finds that the failure was substantially justified or
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1 that other circumstances make an award of expenses

2 unjust.

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

4 and willfully makes any false material statement or

5 representation in the response to an allocator’s in6 formation request or subpoena issued pursuant to

7 subsection (i) shall be deemed to have made a false

8 statement on a matter within the jurisdiction of the

9 United States within the meaning of section 1001 of

10 title 18, United States Code.

11 ‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIALITY.—

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

13 shall establish and maintain a document repository

14 containing copies of all documents and informa15 tion—

16 ‘‘(A) provided by the Administrator pursu17 ant to this section,

18 ‘‘(B) provided or generated by the alloca19 tion parties, or

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

21 allocation.

22 The documents and information in the document re23 pository shall be available only to the parties to the

24 allocation process for review and copying at their

25 own expense, subject to the confidentiality provisions
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1 of paragraph (2). The Administrator shall provide to

2 the allocator all information obtained under section

3 104(e), including information entitled to protection

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

5 or exempt from disclosure pursuant to section

6 552(a) of title 5, United States Code. An allocation

7 party shall not assert any privilege as a basis for

8 withholding any information from the allocator.

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

10 materials submitted to the allocator or placed in the

11 document repository, together with the record of any

12 information generated or obtained during the alloca13 tion process, shall be confidential. The allocator,

14 each allocation party, the Administrator, and the At15 torney General shall maintain such documents and

16 materials, together with the record of any informa17 tion generated or obtained during the allocation, as

18 confidential and are prohibited from using any such

19 material in any other matter or proceeding, and

20 shall not be subject to disclosure under section 552

21 of title 5, United States Code. Such material shall

22 not be discoverable or admissible in any other Fed23 eral, State, or local judicial or administrative pro24 ceedings, except—
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1 ‘‘(A) a new allocation pursuant to sub2 section (m) or (n) for the same remedial action,

3 or

4 ‘‘(B) an initial allocation for a different re5 medial action at the same facility.

6 Nothing in this section shall be construed to author7 ize any person, including the allocator, to withhold

8 any documents or information from Congress, or any

9 duly authorized Committee thereof, or limit in any

10 manner the right of Congress, or any duly author11 ized Committee thereof, to obtain such documents or

12 information. Any person disclosing such documents

13 or information to Congress shall notify the person

14 who produced such documents or information of the

15 fact of such disclosure pursuant to paragraph (5).

16 ‘‘(3) DISCOVERABILITY AND ADMISSIBILITY.—

17 Notwithstanding the foregoing, if the original of any

18 document or material submitted to the allocator or

19 placed in the document repository was, in the hands

20 of the party which provided it, otherwise discover21 able or admissible, then such original document, if

22 subsequently sought from such party, shall remain

23 so. If a fact generated or obtained during the alloca24 tion was, in the hands of a witness, otherwise discov-
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1 erable or admissible, then such fact, if subsequently

2 sought from such other party, shall remain so.

3 ‘‘(4) NO WAIVER OF PRIVILEGE.—The submis4 sion of, documents, or information pursuant to the

5 allocation process shall not be deemed to be a waiver

6 of any privilege, applicable to such documents or in7 formation under any Federal or State law or rule of

8 discovery or evidence.

9 ‘‘(5) PROCEDURE WHEN DISCOVERY IS

10 SOUGHT.—Any person, including the United States

11 and any Federal, State, or local agency, department

12 or instrumentality, receiving any request for a state13 ment, document, or material submitted, or for the

14 record of any allocation proceeding, shall promptly

15 notify the person who originally submitted such item

16 and, except in the case of a request from the Con17 gress or a duly authorized committee thereof, shall

18 provide such submitting person the opportunity to

19 assert and defend the confidentiality of such item.

20 No person shall release or provide a copy of the item

21 to any person not a party to such allocation, other

22 than the Congress or a duly authorized committee

23 thereof, except as may be required by court order.

24 ‘‘(6) CIVIL PENALTY FOR VIOLATION OF CON25 FIDENTIALITY.—Any person who fails to maintain
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1 the confidentiality of any statements, documents or

2 information generated or obtained during an alloca3 tion proceeding, or who releases any such informa4 tion in violation of this section shall be subject to

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

6 penalties may be sought in a civil action initiated by

7 the Attorney General on behalf of the United States,

8 or any allocation party adversely affected by the fail9 ure to maintain confidentiality.

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

11 Administrator and the Attorney General of the United

12 States may reject the allocator’s report if they jointly de13 termine that—

14 ‘‘(1) no rational interpretation of the facts be15 fore the allocator, in light of the factors required to

16 be considered, would form a reasonable basis for the

17 shares assigned to the parties;

18 ‘‘(2) the allocation was affected by bias, fraud,

19 or unlawful conduct; or

20 ‘‘(3) the allocation was substantially and di21 rectly affected by procedural error.

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

23 States has accepted a settlement offer (excluding de

24 minimis or other expedited settlements under section

25 122(g)) based on the allocation. The Administrator and
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1 the Attorney General shall make any such determination

2 within 180 days after the receipt of the first offer based

3 on the allocator’s report. The determinations of the Ad4 ministrator and the Attorney General under this sub5 section shall not be judicially reviewable. No such deter6 mination may be delegated to any officer or employee of

7 the Environmental Protection Agency or the Department

8 of Justice below the level of an Assistant Secretary or Act9 ing Assistant Secretary with authority for implementing

10 this Act at the Environmental Protection Agency or the

11 Department of Justice.

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

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

14 allocator pursuant to subsection (e) to perform, on an ex15 pedited basis, a new allocation based on the same record

16 available to the first allocator. The moratorium on com17 mencement of litigation and tolling of statutes of limita18 tion set forth in subsection (b) shall be extended until 90

19 days after the issuance of the second allocation report. If

20 the United States rejects the second allocation the Presi21 dent may, following the expiration of the moratorium on

22 commencement of litigation, commence an action under

23 section 107.

24 ‘‘(n) NEW INFORMATION.—Any settling party, in25 cluding the United States, may seek a new allocation pur-
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1 suant to subsection (h), where that party presents clear

2 and convincing information or the United States otherwise

3 determines on the basis of clear and convincing informa4 tion that—

5 ‘‘(1) the allocator did not have information con6 cerning 35 percent or more of the materials contain7 ing hazardous substances at the facility, and that

8 this information has been discovered subsequent to

9 the issuance of the allocator’s report; or

10 ‘‘(2) the allocator did not have information con11 cerning a person not subject to the allocation who

12 contributed 15 percent or more of materials contain13 ing hazardous substances at the facility, and that

14 this information has been discovered subsequent to

15 the issuance of the allocator’s report.

16 Determinations by the United States pursuant to this sub17 section shall not be subject to judicial review.

18 ‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—

19 ‘‘(1) ACCEPTANCE OF OFFERS.—If, within 90

20 days after issuance of the allocator’s report for an

21 allocation conducted under subsection (a)(1), an al22 location party—

23 ‘‘(A) makes a written offer to settle with

24 respect to the response action based on the per25 centage share specified by the allocator and on
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1 the additional terms and conditions of settle2 ment (other than the allocated percentage

3 share) that are acceptable to the President, and

4 ‘‘(B) is not in default on any information

5 requests under this Act,

6 then the President shall not seek a higher percent7 age share other than the premia authorized by this

8 section, unless the President has rejected the offer

9 on a basis other than the percentage share, or unless

10 the Administrator and the Attorney General have re11 jected the allocation report pursuant to subsection

12 (l).

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

14 If the Administrator and the Attorney General de15 termine not to settle on the basis of the allocation,

16 they shall provide the allocation parties and mem17 bers of the affected community with a written expla18 nation of the Administrator’s determination.

19 ‘‘(3) SETTLEMENT PROVISIONS.—Settlements

20 based on allocated shares shall include each of the

21 following:

22 ‘‘(A) A waiver of contribution rights

23 against all parties who are potentially respon24 sible parties for the response action, as well as

25 a waiver of any rights to challenge any settle-
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1 ment the President enters into with any other

2 potentially responsible party.

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

4 section 122(f), and provisions regarding per5 formance or adequate assurance of performance

6 of response actions addressed in the settlement.

7 ‘‘(C) A premium determined on a site spe8 cific basis and subject to the limitations set

9 forth in paragraph (4), that compensates for

10 the United States litigation risk with respect to

11 potentially responsible parties who have not re12 solved their liability to the United States, ex13 cept that no such premium shall apply if all

14 parties settle or the settlement covers 100 per15 cent of response costs.

16 ‘‘(D) Contribution protection, consistent

17 with section 113(f), regarding matters ad18 dressed in the settlement. Such settlement does

19 not discharge any of the other potentially re20 sponsible parties unless its terms so provide,

21 but it reduces the potential liability of the oth22 ers by the amount of the settlement.

23 ‘‘(E) Provisions through which the settling

24 parties shall receive reimbursement from the

25 Fund for any response costs incurred by such
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1 parties in excess of the aggregate of their allo2 cated share and any premia required by the set3 tlement. Such right to reimbursement shall not

4 be contingent on the United States recovery of

5 response costs from any responsible person not

6 a party to any settlement with the United

7 States.

8 ‘‘(4) PREMIUM LIMITATIONS.—The premium

9 authorized by paragraph (3)(C) for litigation risk

10 shall not exceed the following:

11 ‘‘(A) Five percent of the total costs as12 sumed by a settling party, where settlements

13 (and any orphan share identified by the allo14 cator) account for 80 percent or more of re15 sponsibility at the facility.

16 ‘‘(B) Ten 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 more than 60 percent and

20 less than 80 percent of responsibility at the fa21 cility.

22 ‘‘(C) Fifteen percent of the total costs as23 sumed by a settling party, where settlements

24 (and any orphan share identified by the allo25 cator) account for more than 40 percent and
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1 less than 60 percent of responsibility at the fa2 cility.

3 ‘‘(D) Twenty 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 40 percent or less of respon7 sibility at the facility.

8 The Administrator shall have authority to promul9 gate regulations to modify the premia percentages

10 established in this subsection. The Administrator

11 may not propose a rule before the date 36 months

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

13 may take effect before the date 48 months after the

14 enactment of this section. Such rule must be based

15 upon an administrative record establishing that such

16 modification is necessary to reflect actual experience

17 regarding the litigation risk faced by the United

18 States in proceeding against nonsettling parties

19 under this section.

20 ‘‘(5) AUTHORIZATION OF REIMBURSEMENT.—

21 In any settlement in which a party agrees to per22 form response work in excess of its share, the Ad23 ministrator shall have authority to carry out his

24 duty to reimburse settling parties under this section
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1 pursuant to such reasonable procedures as the Ad2 ministrator may prescribe.

3 ‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis4 trator shall require all claims for reimbursement to

5 be supported by—

6 ‘‘(A) documentation of actual costs in7 curred; and

8 ‘‘(B) sufficient information to enable the

9 Administrator to determine whether such costs

10 were reasonable.

11 ‘‘(7) SETTLEMENTS WITH SMALL BUSINESS

12 PARTIES.—In connection with any small business al13 location party that makes a written offer to settle14 ment pursuant to paragraph (1), and that the Presi15 dent determines has a limited ability or inability to

16 pay its allocated share, the President shall apply the

17 provisions of section 122(g)(1)(D)(ii).

18 ‘‘(8) INDEPENDENT AUDITING.—The Adminis19 trator may require independent auditing of any

20 claim for reimbursement.

21 ‘‘(p) POST-ALLOCATION LITIGATION.—

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

23 commence an action under section 107 against any

24 person liable under that section who has not resolved

25 its liability to the United States following allocation,
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1 on or after 90 days following issuance of the

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

3 shall be liable in accordance with section 107 for all

4 response costs not recovered through settlements

5 with other persons. Such recoverable costs shall in6 clude any federally funded orphan share identified in

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

8 any shares allocated to Federal, State, or local gov9 ernmental agencies, departments, or instrumental10 ities. Defendants in any such action may implead

11 only allocation parties who did not resolve their li12 ability to the United States. The Administrator and

13 the Attorney General shall issue guidelines to ensure

14 that the relief sought against de minimis parties

15 under principles of joint and several liability will not

16 be grossly disproportionate to their contribution to

17 the facility. The application of such guidelines is

18 committed to the discretion of the Administrator

19 and the Attorney General.

20 ‘‘(2) CERTIFICATION.—In commencing any ac21 tion under section 107 following allocation, the At22 torney General must certify, in the complaint, that

23 the United States has been unable to reach a settle24 ment that would be in the best interests of the
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1 United States. This certification shall not be subject

2 to judicial review.

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

4 an action under section 107 or otherwise seek con5 tribution against any person who was not identified

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

7 subsequently identified as a potentially liable party

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

9 ‘‘(4) ADMISSIBILITY OF ALLOCATOR’S RE10 PORT.—The allocator’s report shall not be admissi11 ble in any court for any purpose, except as set forth

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

13 rules and discretion of the court, may be admissible

14 solely for the purpose of assisting the court in mak15 ing an equitable allocation of response costs among

16 the relative shares of nonsettling liable parties.

17 ‘‘(5) COSTS OF ALLOCATION PROCEDURE ON

18 ORPHAN SHARE.—

19 ‘‘(A) INCLUDED AS COSTS OF RE20 SPONSE.—The costs of implementing the alloca21 tion procedure set forth in this section, includ22 ing reasonable fees and expenses of the allo23 cator, shall be considered necessary costs of re24 sponse for purposes of this Act.
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1 ‘‘(B) ORPHAN SHARE.—The costs attrib2 utable to any funding of orphan shares identi3 fied by the allocator pursuant to subsection

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

5 of response for purposes of this Act, and shall

6 be recoverable from liable parties who do not

7 resolve their liability on the basis of the alloca8 tion.

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

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

11 if the United States has rejected an offer of settle12 ment that is consistent with subsection (o) and that

13 was presented to the United States prior to the expi14 ration of the moratorium period set forth in sub15 section (b), the offeror shall be entitled to recover

16 from the United States the offeror’s reasonable costs

17 of defending the action after the making of the offer

18 (including reasonable attorneys’ fees) if the ultimate

19 resolution of liability or allocation of costs with re20 spect to the offeror (taking into account all settle21 ments and reimbursements with respect to the facil22 ity other than those attributable to insurance or in23 demnification), is as, or more, favorable to the

24 offeror than the offer based on the allocation.

25 ‘‘(q) REIMBURSEMENT FOR UAO PERFORMANCE.—
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1 ‘‘(1) REIMBURSEMENT.—Parties who satisfac2 torily perform work under an administrative order

3 issued under section 106(a) with respect to a reme4 dial action for which an allocation is required by

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

6 for the reasonable and necessary costs of work they

7 perform in excess of the share assigned to them in

8 the allocation in accordance with the provisions of

9 this section, provided that the allocation report is

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

11 end of the moratorium following the allocation, the

12 performing party, in consideration of such reim13 bursement—

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

15 response costs not inconsistent with the Na16 tional Contingency Plan to the extent of the al17 located share;

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

19 ‘‘(C) agrees that its reimbursement shall

20 be reduced by an amount equal to the maxi21 mum litigation risk premium provided for in

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

23 shares of the allocation parties who have not

24 reached settlements with the United States by
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1 the end of the moratorium on commencement of

2 actions provided in subsection (b); and

3 ‘‘(D) waives contribution rights against all

4 parties who are potentially responsible parties

5 for the response action, as well as waives any

6 rights to challenge any settlement the President

7 enters into with any other potentially respon8 sible party.

9 ‘‘(2) OFFSET.—Any and all reimbursement pro10 vided to a performing party for work in excess of its

11 share is subject to equitable offset or reduction by

12 the Administrator upon a finding of a failure to per13 form any aspect of the remedy in a proper and time14 ly manner.

15 ‘‘(3) TIME OF PAYMENT.—Any and all reim16 bursement to a performing party for work in excess

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

18 but no sooner than completion of the construction of

19 the remedial action.

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

21 amount of orphan share funding available to the

22 performing party shall be further limited as follows:

23 ‘‘(A) Performing parties who fully waive

24 their right to challenge remedy selection at the

25 end of the moratorium following allocation shall
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1 be entitled to full reimbursement of costs in ex2 cess of the party’s share and attributable by the

3 allocator to the orphan share paid in nominal

4 dollars after the work is completed, but no

5 sooner than completion of the construction of

6 the remedial action.

7 ‘‘(B) Performing parties who retain their

8 right to challenge the remedy shall be reim9 bursed for 90 percent of orphan share funding,

10 paid in nominal dollars after the work is com11 pleted, but no sooner than completion of the

12 construction of the remedial action, unless the

13 orphan share is less than 20 percent of respon14 sibility at the site, in which case such parties

15 shall be reimbursed only 80 percent of the or16 phan share.

17 For purposes of this subsection ‘nominal dollars’

18 means actual dollars spent by the performing party,

19 without increase for interest or inflation.

20 ‘‘(5) NONORPHAN SHARE REIMBURSEMENT.—

21 Reimbursement for work in excess of the performing

22 party’s allocated share but that is not attributable to

23 the orphan share shall be paid in nominal dollars

24 after work is completed, but no sooner than comple25 tion of the construction of the remedial action, pro-
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1 vided that the performing party is entitled to all in2 terest (prejudgment and post judgment, whether re3 covered from a party or earned in a site account)

4 that has accrued on money recovered by the United

5 States from other parties for such work at the time

6 construction of the remedy is completed.

7 ‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis8 trator shall require that all claims for reimburse9 ment be supported by—

10 ‘‘(A) documentation of actual costs in11 curred; and

12 ‘‘(B) sufficient information to enable the

13 Administrator to determine whether such costs

14 were reasonable.

15 ‘‘(7) INDEPENDENT AUDITING.—The Adminis16 trator may require independent auditing of any

17 claim for reimbursement.

18 ‘‘(r) FUNDING OF ORPHAN SHARES.—

19 ‘‘(1) LIMITATION ON OBLIGATIONS.—For each

20 settlement agreement entered into pursuant to sub21 section (o) that includes an orphan share, and for

22 each unilateral administrative order where the per23 son satisfies the requirements of subsection (q), the

24 United States shall reimburse the allocation parties,

25 including any Federal agency, for costs incurred and
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1 equitably attributable to the orphan share. In no

2 case shall the United States obligate for such costs

3 and interest determined under paragraph (3) in ex4 cess of $300,000,000 in any fiscal year, plus any re5 maining unobligated balance of funds made available

6 under paragraph (2) from previous fiscal years. The

7 mandate to the United States to make obligations

8 and payments under this paragraph constitutes an

9 entitlement to those parties eligible to receive those

10 payments.

11 ‘‘(2) There are authorized to be appropriated

12 from the Fund not to exceed $300,000,000 per year

13 for fiscal year 1996 and each succeeding fiscal year

14 for payments required by paragraph (1), to remain

15 available until expended.

16 ‘‘(3) REIMBURSEMENT DELAYS.—Notwith17 standing section 1341 of title 31, United States

18 Code, any sums found to be due and owing in excess

19 of amounts appropriated for agreements entered into

20 pursuant to subsection (o) and for unilateral admin21 istrative orders pursuant to subsection (q), shall be

22 paid from amounts made available under paragraph

23 (2) for subsequent fiscal years. Such sums shall in24 clude payment of interest on the unpaid balances in
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1 an amount equal to the rate of interest on 1-year

2 Treasury bills, except as provided in subsection (q).

3 ‘‘(s) PROCEDURES.—The Administrator, after con4 sultation with the Attorney General, may promulgate rules

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

6 practices but shall not have additional authority, except

7 as specifically set forth in this section, to promulgate rules

8 or publish guidance to restrict the allocator’s discretion

9 in the conduct of the allocation.

10 ‘‘(t) ROLE OF FEDERAL AGENCIES.—Federal depart11 ments, agencies, or instrumentalities that are identified as

12 potentially responsible parties shall be subject to, and be

13 entitled to the benefits of, the allocation process provided

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

15 ‘‘(u) REPRESENTATION OF THE UNITED STATES

16 AND AFFECTED STATES.—The Administrator and the At17 torney General, and a representative of any State that

18 may be responsible for a portion of the orphan share, shall

19 be entitled to review all documents and participate in any

20 phase of the allocation proceeding.

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

22 annually to Congress on the administration of the alloca23 tion scheme under this section, and provide information

24 comparing allocation results with actual settlements at

25 multiparty facilities.
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1 ‘‘(w) SAVINGS PROVISIONS.—(1) Nothing in this sec2 tion shall in any way limit or affect the President’s author3 ity to exercise the powers conferred by section 103, 104,

4 105, 106, or 122 of this title, or to commence an action

5 against a party where there is a contemporaneous filing

6 of a judicial consent decree resolving that party’s liability;

7 or to file a proof of claim or take other action in a proceed8 ing under title 11 of the United States Code.

9 ‘‘(2) The procedures established in this section shall

10 not be construed to modify or affect in any way the prin11 ciples of retroactive, strict, joint and several liability under

12 this title.

13 ‘‘(3) Nothing in this section shall limit or affect—

14 ‘‘(A) the Administrator’s obligation to perform

15 an allocation for facilities that have been the subject

16 of partial or expedited settlements;

17 ‘‘(B) the ability of a potentially responsible

18 party at a facility to resolve its liability to the Unit19 ed States or other parties at any time before initi20 ation or completion of the allocation process;

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

22 merits of any judicial or administrative order, judg23 ment, or decree that is issued, signed, lodged, or en24 tered with respect to liability under this Act or that
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1 authorizes modification of any such order, judgment

2 or decree; or

3 ‘‘(D) the validity, enforceability, finality or mer4 its of any preexisting contract or agreement relating

5 to any allocation of responsibility or any sharing of

6 response costs under this Act.

7 ‘‘(x) RESPONSE ACTION CONTRACTOR.—A person

8 who is potentially liable under this Act solely as a response

9 action contractor with respect to a facility in accordance

10 with section 119 shall not be named as an allocation party

11 under this section with respect to that facility.’’.

12 SEC. 414. RECYCLING TRANSACTIONS.

13 (a) PURPOSES.—The purposes of this section are—

14 (1) to promote the reuse and recycling of scrap

15 material in furtherance of the goals of waste mini16 mization and natural resource conservation while

17 protecting human health and the environment;

18 (2) to level the playing field between the use of

19 virgin materials and recycled materials; and

20 (3) to remove the disincentives and impedi21 ments to recycling because of potential liability.

22 (b) CLARIFICATION OF LIABILITY UNDER CERCLA

23 FOR RECYCLING TRANSACTIONS.—Title I is amended by

24 adding after section 128 the following new section:
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1 ‘‘SEC. 129. RECYCLING TRANSACTIONS.

2 ‘‘(a) LIABILITY CLARIFICATION.—As provided in

3 subsections (b), (c), (d) and (e), a person who arranged

4 for the recycling of recyclable material shall not be liable

5 under section 107(a)(3) or 107(a)(4).

6 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur7 poses of this section, the term ‘recyclable material’ means

8 scrap paper, scrap plastic, scrap glass, scrap textiles,

9 scrap rubber (other than whole tires), scrap metal, or

10 spent lead-acid, spent nickel-cadmium and other spent

11 batteries, as well as minor amounts of material incident

12 to or adhering to the scrap material as a result of its nor13 mal and customary use prior to becoming scrap.

14 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER,

15 PLASTIC, GLASS, TEXTILES, OR RUBBER.—Transactions

16 involving scrap paper, scrap plastic, scrap glass, scrap tex17 tiles, or scrap rubber (other than whole tires) shall be

18 deemed to be arranging for recycling if the person who

19 arranged for the transaction (by selling recyclable material

20 or otherwise arranging for the recycling of recyclable ma21 terial) can demonstrate by a preponderance of the evi22 dence that all of the following criteria were met at the

23 time of the transaction:

24 ‘‘(1) The recyclable material met a commercial

25 specification grade.
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1 ‘‘(2) A market existed for the recyclable mate2 rial.

3 ‘‘(3) A substantial portion of the recyclable ma4 terial was made available for use as a feedstock for

5 the manufacture of a new saleable product.

6 ‘‘(4) The recyclable material could have been a

7 replacement or substitute for a virgin raw material,

8 or the product to be made from the recyclable mate9 rial could have been a replacement or substitute for

10 a product made, in whole or in part, from a virgin

11 raw material.

12 ‘‘(5) For transactions occurring 90 days or

13 more after the date of enactment of this section, the

14 person exercised reasonable care to determine that

15 the facility where the recyclable material would be

16 handled, processed, reclaimed, or otherwise managed

17 by another person (hereinafter in this section re18 ferred to as a ‘consuming facility’) was in compli19 ance with substantive (not procedural or administra20 tive) provisions of any Federal, State, or local envi21 ronmental law or regulation, or compliance order or

22 decree issued pursuant thereto, applicable to the

23 handling, processing, reclamation, storage, or other

24 management activities associated with the recyclable

25 material.
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1 ‘‘(6) For purposes of this subsection, ‘reason2 able care’ shall be determined using criteria that in3 clude (but are not limited to) (A) the price paid in

4 the recycling transaction; (B) the ability of the per5 son to detect the nature of the consuming facility’s

6 operations concerning its handling, processing, rec7 lamation, or other management activities associated

8 with the recyclable material; and (C) the result of

9 inquiries made to the appropriate Federal, State, or

10 local environmental agency (or agencies) regarding

11 the consuming facility’s past and current compliance

12 with substantive (not procedural or administrative)

13 provisions of any Federal, State, or local environ14 mental law or regulation, or compliance order or de15 cree issued pursuant thereto, applicable to the han16 dling, processing, reclamation, storage, or other

17 management activities associated with the recyclable

18 material. For the purposes of this paragraph, a re19 quirement to obtain a permit applicable to the han20 dling, processing, reclamation, or other management

21 activity associated with the recyclable materials shall

22 be deemed to be a substantive provision.

23 ‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—

24 ‘‘(1) Transactions involving scrap metal shall be

25 deemed to be arranging for recycling if the person
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1 who arranged for the transaction (by selling recycla2 ble material or otherwise arranging for the recycling

3 of recyclable material) can demonstrate by a prepon4 derance of the evidence that at the time of the

5 transaction—

6 ‘‘(A) the person met the criteria set forth

7 in subsection (c) with respect to the scrap

8 metal;

9 ‘‘(B) the person was in compliance with

10 any applicable regulations or standards regard11 ing the storage, transport, management, or

12 other activities associated with the recycling of

13 scrap metal that the Administrator promulgates

14 under the Solid Waste Disposal Act subsequent

15 to the enactment of this section and with re16 gard to transactions occurring after the effec17 tive date of such regulations or standards; and

18 ‘‘(C) the person did not melt the scrap

19 metal prior to the transaction.

20 ‘‘(2) For purposes of paragraph (1)(C), melting

21 of scrap metal does not include the thermal separa22 tion of 2 or more materials due to differences in

23 their melting points (referred to as ‘sweating’).

24 ‘‘(3) For the purposes of this subsection, the

25 term ‘scrap metal’ means bits and pieces of metal
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1 parts (e.g. bars, turnings, rods, sheets, wire) or

2 metal pieces that may be combined together with

3 bolts or soldering (e.g. radiators, scrap automobiles,

4 railroad box cars), which when worn or superfluous

5 can be recycled, except for scrap metals that the Ad6 ministrator excludes from this definition by regula7 tion and steel shipping containers of a capacity from

8 30 liters to and including 3,000 liters, whether in9 tact or not, having any hazardous substance (but

10 not metal bits or pieces) contained in or adhering

11 thereto.

12 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—(1)

13 Transactions involving spent lead-acid batteries, spent

14 nickel-cadmium batteries or other spent batteries shall be

15 deemed to be arranging for recycling if the person who

16 arranged for the transaction (by selling recyclable material

17 or otherwise arranging for the recycling of recyclable ma18 terial) can demonstrate by a preponderance of the evi19 dence that at the time of the transaction—

20 ‘‘(A) the person met the criteria set forth in

21 subsection (c) with respect to the spent lead-acid

22 batteries, spent nickel-cadmium batteries, or other

23 spent batteries but did not recover the valuable com24 ponents of such batteries; and
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1 ‘‘(B)(i) with respect to transactions involving

2 lead-acid batteries, the person was in compliance

3 with applicable Federal environmental regulations or

4 standards, and any amendments thereto, regarding

5 the storage, transport, management, or other activi6 ties associated with the recycling of spent lead-acid

7 batteries;

8 ‘‘(ii) with respect to transactions involving nick9 el-cadmium batteries, Federal environmental regula10 tions or standards are in effect regarding the stor11 age, transport, management, or other activities asso12 ciated with the recycling of spent nickel-cadmium

13 batteries, and the person was in compliance with ap14 plicable regulations or standards or any amendments

15 thereto; or

16 ‘‘(iii) with respect to transactions involving

17 other spent batteries, Federal environmental regula18 tions or standards are in effect regarding the stor19 age, transport, management, or other activities asso20 ciated with the recycling of such batteries, and the

21 person was in compliance with applicable regulations

22 or standards or any amendments thereto.

23 ‘‘(2) For purposes of paragraph (1)(A) of this sub24 section, a person who, by contract, arranges or pays for

25 processing of batteries by an unrelated third person and
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1 receives from such third person materials reclaimed from

2 such batteries shall not thereby be deemed to recover the

3 valuable components of such batteries, provided, however,

4 that (A) for transactions occurring more than 90 days

5 after the date of enactment of the Superfund Reform Act

6 of 1994, such person exercised due diligence in determin7 ing that such third person was in compliance with all Fed8 eral, State, and local environmental laws and regulations

9 applicable to the storage, transport, management, or other

10 activities associated with the recycling of spent batteries;

11 and (B) such person had no knowledge or reason to know

12 of the release or threatened release.

13 ‘‘(f) EXCLUSIONS.—(1) The exemptions set forth in

14 subsections (c), (d), and (e) shall not apply if—

15 ‘‘(A) the person had an objectively reasonable

16 basis to believe at the time of the recycling trans17 action—

18 ‘‘(i) that the recyclable material would not

19 be recycled,

20 ‘‘(ii) that the recyclable material would be

21 burned as fuel, or for energy recovery or incin22 eration, or

23 ‘‘(iii) for transactions occurring before 90

24 days after the date of the enactment of this sec25 tion, that the consuming facility was not in
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1 compliance with a substantive (not a procedural

2 or administrative) provision of any Federal,

3 State, or local environmental law or regulation,

4 or compliance order or decree issued pursuant

5 thereto, applicable to the handling, processing,

6 reclamation, or other management activities as7 sociated with the recyclable material; or

8 ‘‘(B) the person added hazardous substances to

9 the recyclable material for purposes other than proc10 essing for recycling; or

11 ‘‘(C) the person failed to exercise reasonable

12 care with respect to the management and handling

13 of the recyclable material.

14 ‘‘(2) For purposes of this subsection, an objectively

15 reasonable basis for belief shall be determined using cri16 teria that include (but are not limited to) the size of the

17 person’s business, customary industry practices, the price

18 paid in the recycling transaction, and the ability of the

19 person to detect the nature of the consuming facility’s op20 erations concerning its handling, processing, reclamation

21 or other management activities associated with the recy22 clable material.

23 ‘‘(3) For purposes of this subsection, a requirement

24 to obtain a permit applicable to the handling, processing,

25 reclamation, or other management activities associated
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1 with recyclable material shall be deemed to be a sub2 stantive provision.

3 ‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing in

4 this section shall be deemed to affect the liability of a per5 son under paragraph (1) or (2) of section 107(a).

6 ‘‘(h) PCBS.—An exemption under this section does

7 not apply if the recyclable material contained poly8 chlorinated biphenyls in excess of 50 parts per million or

9 any new standard promulgated pursuant to applicable

10 Federal laws.

11 ‘‘(i) REGULATIONS.—The Administrator has the au12 thority, under section 115, to promulgate additional regu13 lations concerning this section.

14 ‘‘(j) EFFECT ON PENDING OR CONCLUDED AC15 TIONS.—The exemptions provided in this section shall not

16 affect any concluded judicial or administrative action or

17 any pending judicial action initiated by the United States

18 prior to enactment of this section.

19 ‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR CER20 TAIN ACTIONS.—Any person who commences an action for

21 contribution against a person who is not liable by oper22 ation of this section shall be liable to that person for all

23 reasonable costs of defending that action, including all

24 reasonable attorney’s and expert witness fees.
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1 ‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER

2 LAWS.—Nothing in this section shall affect—

3 ‘‘(1) liability under any other Federal, State, or

4 local statute or regulation promulgated pursuant to

5 any such statute, including any requirements pro6 mulgated by the Administrator under the Solid

7 Waste Disposal Act; or

8 ‘‘(2) the ability of the Administrator to promul9 gate regulations under any other statute, including

10 the Solid Waste Disposal Act.’’.

11 TITLE V—REMEDY SELECTION

12 AND CLEANUP STANDARDS

13 SEC. 501. CLEANUP STANDARDS.

14 Section 121(d) (42 U.S.C. 9621(d)) is amended as

15 follows:

16 (1) In paragraph (3), by inserting ‘‘or 4010(c)

17 if appropriate’’ after ‘‘3005’’.

18 (2) By redesignating pargraphs (3) and (4) as

19 paragraphs (9) and (10), respectively.

20 (3) By striking out the subsection heading and

21 designation and all that follows through the end of

22 paragraph (2) and inserting in lieu thereof the fol23 lowing:

24 ‘‘(d) ESTABLISHMENT OF PROTECTIVE CONCENTRA25 TION LEVELS.—
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1 ‘‘(1) NATIONAL GOALS FOR THE PROTECTION

2 OF HUMAN HEALTH AND THE ENVIRONMENT.—In

3 order to provide consistent and equivalent protection

4 of human health and the environment to all commu5 nities, within 18 months after the enactment of the

6 Superfund Reform Act of 1994, the Administrator

7 shall promulgate national goals to be applied at all

8 facilities subject to remedial action under this Act.

9 National goals for human health shall be expressed

10 as a single, numerical level for chemical carcinogens

11 and a single, numerical level for noncarcinogens, re12 spectively. The national goals shall provide the basis

13 for protective concentration levels unless the achieve14 ment of such goals is technically infeasible or unrea15 sonably costly pursuant to subsection (b). In a case

16 in which the President selects a remedy that does

17 not achieve the national goals, the President shall

18 publish an explanation of the basis for that decision.

19 The national goals shall be developed and promul20 gated in accordance with sections 561 through 570

21 of title 5, United States Code (commonly referred to

22 as the ‘Negotiated Rulemaking Act’).

23 ‘‘(2) SCOPE AND PURPOSE OF NATIONAL RISK

24 PROTOCOL.—The Administrator shall promulgate a

25 national risk protocol for conducting risk assess-
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1 ments under this Act. The national risk protocol

2 shall be used for risk assessments underlying deter3 minations of the need for remedial action, the estab4 lishment of protective concentration levels of chemi5 cals, and the evaluation of remedial alternatives. The

6 goal of the national risk protocol is to promote real7 istic estimates that neither minimize nor exaggerate

8 the risks or potential risks posed by a facility at

9 which hazardous substances have been disposed of or

10 otherwise come to be located. The national risk pro11 tocol shall be developed and promulgated in accord12 ance with sections 561 through 570 of title 5, Unit13 ed States Code, to the extent the Administrator

14 deems appropriate. The national risk protocol shall

15 establish, to the extent appropriate and practicable,

16 the following:

17 ‘‘(A) Standardized exposure scenarios de18 fining exposure pathways for a range of unre19 stricted and restricted land uses.

20 ‘‘(B) Standardized formulae or methodolo21 gies for—

22 ‘‘(i) evaluating the exposure pathways

23 of concern under the standardized expo24 sure scenarios established under subpara25 graph (A); and
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1 ‘‘(ii) developing, consistent with the

2 national goals under paragraph (1), chemi3 cal concentration levels protective of recep4 tors currently and reasonably anticipated

5 to be exposed via the pathways included in

6 such scenarios for the 100 contaminants

7 most frequently occurring at facilities ad8 dressed under this Act for which adequate

9 toxicity information is available.

10 ‘‘(C) Methodologies for facility-specific

11 evaluations of ecological risks.

12 ‘‘(3) STANDARDIZED FORMULAE OR METH13 ODOLOGIES.—Standardized formulae or methodolo14 gies established under subparagraphs (A) and (B) of

15 paragraph (2) shall include the following:

16 ‘‘(A) National constants for specific char17 acteristics of individual chemicals not expected

18 to vary from facility to facility.

19 ‘‘(B) Facility-specific variables for physical

20 characteristics of the facility and other factors.

21 Criteria for identifying such variables shall in22 clude the following:

23 ‘‘(i) Whether a characteristic or factor

24 can be objectively measured based on ac25 tual facility data or reasonably estimated
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•HR 4916 IH

1 based on credible scientific studies when

2 facility-measured data cannot be reason3 ably obtained.

4 ‘‘(ii) Whether the effects of a char5 acteristic or factor are scientifically well6 understood.

7 ‘‘(iii) Whether the impact of the char8 acteristic or factor on estimations of risk

9 or protective concentration levels is signifi10 cant.

11 ‘‘(C) Exposure factors related to demo12 graphics (including separate exposure factors

13 for sensitive subpopulations to be applied where

14 relevant), activity patterns, and natural con15 straints. Defaults or ranges of default values

16 shall be established for such factors and used

17 unless verifiable data are presented that the de18 faults are significantly different from actual fa19 cility conditions. In such cases, the values shall

20 be determined on a site-specific basis after con21 sideration of any views expressed by the Com22 munity Working Group, if available, and the af23 fected community.

24 ‘‘(4) APPLICATION OF NATIONAL RISK PROTO25 COL.—(A) The President shall conduct an analysis
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1 at each facility to determine which exposure sce2 narios, pathways, and contaminants are relevant to

3 that facility. Where standardized formulae or meth4 odologies for addressing such relevant scenarios,

5 pathways, and contaminants are available, they shall

6 be used.

7 ‘‘(B) Standardized formulae or methodologies

8 for exposure pathways that do not exist or are not

9 reasonably anticipated to exist in the future at a fa10 cility shall not be applied in establishing protective

11 concentration levels for the facility.

12 ‘‘(C) Where standardized formulae or meth13 odologies for particular exposure scenarios, exposure

14 pathways, or chemicals are unavailable, facility-spe15 cific risk assessment shall be used.

16 ‘‘(5) CONSIDERATIONS IN ESTABLISHING THE

17 NATIONAL RISK PROTOCOL.—(A) In developing the

18 national risk protocol under paragraph (2), the Ad19 ministrator shall evaluate and, to the degree appro20 priate and practicable—

21 ‘‘(i) identify appropriate sources of toxicity

22 information;

23 ‘‘(ii) define the use of probabilistic model24 ing;
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•HR 4916 IH

1 ‘‘(iii) identify criteria for the selection and

2 application of transport and fate models;

3 ‘‘(iv) define the use of high end and central

4 tendency exposure cases and assumptions;

5 ‘‘(v) define the use of population risk esti6 mates in addition to individual risk estimates;

7 ‘‘(vi) define appropriate approaches for ad8 dressing cumulative risks posed by multiple

9 contaminants or multiple exposure pathways;

10 and

11 ‘‘(vii) establish appropriate sampling ap12 proaches and data quality requirements.

13 ‘‘(B) The national risk protocol shall establish

14 guidelines for all risk assessments conducted under

15 paragraph (2), including those by which protective

16 concentration levels are established, which result in

17 final protection at the 90th exposure percentile of

18 the affected population defined by the President.

19 ‘‘(6) PHASING AND UPDATING OF THE NA20 TIONAL RISK PROTOCOL.—The national risk protocol

21 shall be developed in accordance with a schedule pro22 mulgated by the Administrator within 90 days after

23 the date of enactment of the Superfund Reform Act

24 of 1994. The national risk protocol may be devel25 oped and promulgated in phases as determined ap-
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•HR 4916 IH

1 propriate by the Administrator. The final protocol

2 shall be promulgated within 18 months after the en3 actment of such Act. The Administrator also shall

4 determine an appropriate approach and schedule for

5 ensuring that the national risk protocol remains cur6 rent with emerging science and relevant Agency pol7 icy.

8 ‘‘(7) FEDERAL AND STATE LAWS.—(A) A reme9 dial action shall be required to—

10 ‘‘(i) comply with the substantive require11 ments of any promulgated standard, require12 ment, criterion, or limitation under any Fed13 eral, or more stringent State, environmental or

14 facility siting law that is applicable to the con15 duct or operation of the remedial action;

16 ‘‘(ii) attain any promulgated protective

17 concentration levels applicable to determining

18 the level of cleanup for remedial actions con19 ducted under any State environmental law

20 where such levels are more stringent than those

21 established under subparagraph (C)(i) or the

22 concentration levels determined to be protective

23 for a given facility in accordance with the re24 quirements of paragraph (2); and
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•HR 4916 IH

1 ‘‘(iii) comply with or attain any other pro2 mulgated standard, requirement, criterion, or

3 limitation under any State environmental or fa4 cility siting law that the State demonstrates is

5 consistently applied to remedial actions under

6 State law, and that the State determines,

7 through a promulgation process which includes

8 public notice, comment, and written response

9 thereto, and opportunity for judicial review,

10 apply to remedial actions under the Act.

11 ‘‘(B) Compliance with any State standard, cri12 terion, requirement, or limitation under subpara13 graph (A) shall be required at a given facility if it

14 has been identified by the State to the President in

15 a timely manner as applicable at that facility. In ad16 dition, each State shall publish a comprehensive list

17 of the promulgated standards, criteria, requirements,

18 or limitations that the State may apply to remedial

19 actions under this Act and revise such list periodi20 cally. The State shall also revise such list as re21 quested by the President.

22 ‘‘(C)(i) A goal of this Act is to restore any con23 taminated ground water and surface water that may

24 be used for drinking water to—
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1 ‘‘(I) the level of any maximum contami2 nant level or non-zero maximum contaminant

3 level goal for any hazardous substance, pollut4 ant, or contaminant which has been established

5 under title XIV of the Public Health Service

6 Act (the Safe Drinking Water Act), and

7 ‘‘(II) a protective concentration level that

8 attains the goal in paragraph (1) for any other

9 hazardous substance, pollutant, or contaminant.

10 Attainment of such levels shall satisfy the require11 ments of paragraph (1). Each total remedy selected

12 under this Act and each protective concentration

13 level established under this subsection shall achieve

14 the goal of this subparagraph in the ground water

15 or surface water unless the President makes a find16 ing which is published with an explanation and ap17 propriate documentation that the achievement of the

18 goal is technically impracticable from an engineering

19 perspective or, in the case of ground water that

20 meets the requirements of subsection (b)(4)(C) and

21 has low levels of contamination relative to such goal,

22 compliance with or attainment of such goal is unrea23 sonably costly considering the factors under sub24 section (b)(4)(A). Upon making such a finding, the
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•HR 4916 IH

1 President shall publish the alternative remedial

2 strategy and its goals.

3 ‘‘(ii) For the purpose of this section, the phrase

4 ‘ground water that may be used for drinking water’

5 shall not include ground waters (I) containing more

6 than 10,000 milligrams per liter total dissolved sol7 ids, (II) that are so contaminated by naturally oc8 curring conditions or by the effects of broad-scale

9 human activity unrelated to a specific activity that

10 restoration of drinking water quality is impractica11 ble, or (III) the potential source of drinking water

12 is physically incapable of yielding a quantity of 150

13 gallons per day of water to a well or spring without

14 adverse environmental consequences.

15 ‘‘(iii) Remedial actions for contaminated ground

16 water (other than ground water that may be used

17 for drinking water) shall attain levels appropriate for

18 the current or reasonably anticipated future use of

19 such ground water, or levels appropriate considering

20 the current use of any ground water or surface

21 water to which such contaminated ground water dis22 charges.

23 ‘‘(iv) Concentration levels other than those re24 quired under clause (i) may be established for

25 ground water that may be used for drinking water
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1 in any case in which the following conditions are

2 met:

3 ‘‘(I) The President determines that the use

4 of alternate concentration levels is appropriate.

5 ‘‘(II) There are known and projected

6 points of entry of such ground water into sur7 face water.

8 ‘‘(III) On the basis of measurements or

9 projections, there is or will be no increase of

10 such constituents that would pose a threat to

11 human health or the environment from such

12 ground water in such surface water.

13 ‘‘(IV) The remedial action includes en14 forceable measures that will preclude human ex15 posure to the contaminated ground water within

16 the facility and up to all known and projected

17 points of entry of such ground water into sur18 face water.

19 ‘‘(V) Monitoring to ensure attainment of

20 the alternative concentration level is conducted

21 in ground water at a point or points imme22 diately prior to where the ground water enters

23 into surface water. In such cases, the point of

24 human exposure may be assumed to be at such

25 known and projected points of entry.
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1 ‘‘(v) Not later than 18 months after the date of

2 the enactment of the Superfund Reform Act of

3 1994, after notice and comment, the President shall

4 publish guidance as to determinations of technical

5 impracticability from an engineering perspective to

6 achieve the goal of this subparagraph, for use in the

7 selection of remedies for contaminated ground water

8 under subsection (b). Such guidance shall identify

9 certain hazardous substances, pollutants, or con10 taminants and certain geological or hydrological

11 characteristics of facilities with ground water con12 tamination, or combinations thereof, for which res13 toration in accordance with subclauses (I) and (II)

14 of clause (i) may be from an engineering perspective

15 technically impracticable or technically practicable.

16 Such guidance shall be taken into consideration

17 under subsection (b)(4)(A)(vii) and this subpara18 graph.

19 ‘‘(vi) The President shall make findings of tech20 nical impracticability from an engineering perspec21 tive (including findings under this subparagraph or

22 subparagraph (E) or subsection (b)(4)(A) on the

23 basis of projections, modeling, measures undertaken

24 under subsection (b)(4)(B), or other analysis on a

25 site specific basis (including the consideration of in-
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•HR 4916 IH

1 formation presented by responsible parties at such

2 facility) without a requirement that the remedial

3 measure for which a finding of technical imprac4 ticability is under consideration be first constructed

5 or installed and operated and its performance over

6 time reviewed, unless such projection, modeling,

7 measure, or other analysis are insufficient or inad8 equate to make such a finding.

9 ‘‘(D) Procedural requirements of Federal and

10 State standards, requirements, criteria, or limita11 tions, including permitting requirements, shall not

12 apply to response actions conducted on-site. Compli13 ance with subparagraph (A) shall not be required

14 with respect to return, replacement, or disposal of

15 contaminated media or residuals of contaminated

16 media into the same medium in or very near existing

17 areas of contamination on-site.

18 ‘‘(E)(i) The President may select a remedial ac19 tion meeting the requirements of paragraph (1) that

20 does not comply with or attain a Federal or State

21 standard, requirement, criterion, or limitation as re22 quired by subparagraphs (A) and (C), if the Presi23 dent finds any of the following:

24 ‘‘(I) The remedial action selected is only

25 part of a total remedial action that will comply
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1 with or attain the applicable requirements of

2 subparagraphs (A) and (C) of this paragraph

3 when completed.

4 ‘‘(II) Compliance with or attainment of

5 such requirement at that facility will result in

6 greater risk to human health and the environ7 ment than alternative options.

8 ‘‘(III) Compliance with or attainment of

9 such requirement is technically impracticable

10 from an engineering perspective.

11 ‘‘(IV) The remedial action selected will at12 tain a standard of performance that is equiva13 lent to that required under a standard, require14 ment, criterion, or limitation identified under

15 subparagraph (A) through use of another ap16 proach.

17 ‘‘(V) With respect to a State standard, re18 quirement, criterion, or limitation under clauses

19 (i), (ii), and (iii) of subparagraph (A), the State

20 has not consistently applied (or demonstrated

21 the intention to consistently apply) the stand22 ard, requirement, criterion, or limitation in

23 similar circumstances at other remedial actions

24 within the State.
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•HR 4916 IH

1 ‘‘(VI) In the case of a remedial action to

2 be undertaken solely under section 104 using

3 the Fund, a selection of a remedial action that

4 complies with or attains standards, criteria, re5 quirements, or limitations will not provide a

6 balance between the need for protection of pub7 lic health and welfare and the environment at

8 the facility under consideration, and the avail9 ability of amounts from the Fund to respond to

10 other facilities that present or may present a

11 threat to public health or welfare or the envi12 ronment, taking into consideration the relative

13 immediacy of such threat.

14 ‘‘(ii) The President shall publish any findings

15 made under clause (i), together with an explanation

16 and appropriate documentation.

17 ‘‘(8)(A) Except as provided in subparagraph

18 (B), a State standard, requirement, criteria, or limi19 tation (including any State siting standard or re20 quirement) which could effectively result in the

21 statewide prohibition of land disposal of hazardous

22 substances, pollutants, or contaminants shall not

23 apply.
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1 ‘‘(B) Any State standard, requirement, criteria,

2 or limitation referred to in subparagraph (A) shall

3 apply where each of the following conditions is met:

4 ‘‘(i) The State standard, requirement, cri5 teria, or limitation is of general applicability

6 and was adopted by formal means.

7 ‘‘(ii) The State standard, requirement, cri8 teria, or limitation was adopted on the basis of

9 hydrologic, geologic, or other relevant consider10 ations and was not adopted for the purpose of

11 precluding onsite remedial actions or other land

12 disposal for reasons unrelated to protection of

13 human health and the environment.

14 ‘‘(iii) The State arranges for, and assures

15 payment of the incremental costs of utilizing, a

16 facility for disposition of the hazardous sub17 stances, pollutants, or contaminants con18 cerned.’’.

19 SEC. 502. REMEDY SELECTION.

20 Section 121(b) (42 U.S.C. 9621(b)) is amended to

21 read as follows:

22 ‘‘(b) GENERAL RULES. —

23 ‘‘(1) SELECTION OF PROTECTIVE REMEDIES.—

24 Remedies selected at individual facilities shall be

25 protective of human health and the environment and
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1 provide long-term reliability at reasonable cost. A re2 medial action may achieve protection of human

3 health and the environment through treatment that

4 reduces the toxicity, mobility, or volume of hazard5 ous substances, pollutants, or contaminants; contain6 ment or other engineering controls to limit exposure;

7 a combination of treatment and containment; or

8 other methods of protection. The method or methods

9 of remediation appropriate for a given facility shall

10 be determined through the evaluation of remedial al11 ternatives and the selection process under para12 graphs (2) and (3). When determining the appro13 priate remedial method, treatment is to be preferred

14 for hot spots as defined under paragraph (3)(B).

15 This preference shall not apply to materials that do

16 not constitute hot spots.

17 ‘‘(2) LAND USE.—(A) In selecting a remedy,

18 the President shall take into account the reasonably

19 anticipated future uses of land at a facility as re20 quired by this Act. In identifying reasonably antici21 pated future land uses the President shall consider

22 factors, which generally shall include the following:

23 ‘‘(i) Any consensus recommendation of the

24 Community Working Group and any other

25 views expressed by members of the affected
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1 community except that, with respect to a Fed2 eral facility scheduled for closure or realign3 ment, the President shall consider any joint

4 concensus recommendation of the Community

5 Working Group and a redevelopment authority

6 which has been established for such facility.

7 ‘‘(ii) The land use history of the facility

8 and surrounding properties, the current land

9 uses of the facility and surrounding properties,

10 recent development patterns in the area where

11 the facility is located, and population projec12 tions for that area.

13 ‘‘(iii) Federal or State land use designa14 tions, including Federal facilities and national

15 parks, State ground water or surface water re16 charge areas established under a State’s com17 prehensive protection plan for ground water or

18 surface water, and recreational areas.

19 ‘‘(iv) The current land use zoning and fu20 ture land use plans of the local government

21 with land use regulatory authority.

22 ‘‘(v) The potential for economic redevelop23 ment.

24 ‘‘(vi) The proximity of the contamination

25 to residences, sensitive populations or
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1 ecosystems, natural resources, or areas of

2 unique historic or cultural significance.

3 ‘‘(vii) Current plans for the facility by the

4 property owner or owners, not including poten5 tial voluntary remedial measures.

6 ‘‘(B) In developing its recommendation, the

7 Community Working Group shall consider factors

8 (ii) through (vii) of subparagraph (A), and the

9 President shall give substantial weight to that rec10 ommendation where consensus is reached, or sub11 stantial weight to the views of the affected commu12 nity where the Community Working Group does not

13 reach consensus in accordance with section 117(g).

14 ‘‘(C) All information considered by the Presi15 dent in evaluating reasonably anticipated future land

16 uses under this paragraph shall be included in the

17 administrative record under section 113(k).

18 ‘‘(3) APPROPRIATE REMEDIAL ACTION.—(A)

19 The President shall identify and select an appro20 priate remedy that prevents exposures in excess of

21 protective concentration levels established under sub22 section (d) by balancing the following factors:

23 ‘‘(i) The effectiveness of the remedy, in24 cluding its implementability.
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1 ‘‘(ii) The long-term reliability of the rem2 edy, that is, its capability to achieve long-term

3 protection of human health and the environ4 ment considering the preference for treatment

5 of hot spots.

6 ‘‘(iii) Any short-term risk posed by the im7 plementation of the remedy to the affected com8 munity, to those engaged in the cleanup effort,

9 and to the environment.

10 ‘‘(iv) The acceptability of the remedy to

11 the affected community.

12 ‘‘(v) The reasonableness of the cost of the

13 remedy.

14 ‘‘(B) HOT SPOTS.—The following shall apply to

15 the remediation of hot spots:

16 ‘‘(i) For purposes of this section, the term

17 ‘hot spot’ means a discrete area within a facility

18 that contains hazardous substances, pollutants

19 or contaminants that are present in high con20 centrations, are highly mobile, or cannot be reli21 ably contained, that would present a significant

22 risk to human health or the environment should

23 exposure occur. The President shall develop

24 guidelines for the identification of hot spots.

25 Such guidelines shall recommend appropriate
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1 field investigations that will not require extraor2 dinarily complex or costly measures.

3 ‘‘(ii) In determining an appropriate remedy

4 for hot spots, the President shall consider the

5 factors under subparagraph (A). With respect

6 to the factor in clause (v), the President shall

7 use a higher threshold for evaluating the rea8 sonableness of costs for hot spot treatment rel9 ative to the remediation of non-hot spot mate10 rials.

11 ‘‘(iii) The President shall select a remedy

12 requiring treatment of materials constituting

13 hot spots unless an appropriate treatment tech14 nology is unavailable or is available only at un15 reasonable cost. In such instances, the Presi16 dent shall select an interim containment remedy

17 for such hot spot subject to adequate monitor18 ing and public reporting to ensure its continued

19 integrity and shall review the interim contain20 ment remedy in accordance with subsection (c).

21 When the appropriate treatment technology be22 comes available, as determined by the Presi23 dent, that remedy shall be considered in accord24 ance with this section.
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•HR 4916 IH

1 ‘‘(iv) Notwithstanding the presence of a

2 hot spot, the President may select a final con3 tainment remedy for hot spots at landfills and

4 mining sites or similar facilities under the fol5 lowing circumstances:

6 ‘‘(I) The hot spot is small relative to

7 the overall volume of waste or contamina8 tion being addressed, the hot spot is not

9 readily identifiable and accessible, and

10 without the presence of the hot spot con11 tainment would have been selected as the

12 appropriate remedy under subparagraph

13 (A) for the larger body of waste or area of

14 contamination in which the hot spot is lo15 cated.

16 ‘‘(II) The volume and areal extent of

17 the hot spot is extraordinary compared to

18 other facilities, and it is highly unlikely

19 due to the size and other characteristics of

20 the hot spot that any treatment technology

21 will be developed that could be imple22 mented at reasonable cost.

23 Where final containment for a hot spot is selected,

24 the President shall publish an explanation of the

25 basis for that decision.
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1 ‘‘(4) SELECTION OF RESPONSE ACTIONS FOR

2 GROUND WATER CONTAMINATION.—

3 ‘‘(A) FACTORS.—The President shall iden4 tify and select an appropriate remedy for con5 taminated ground water that achieves protec6 tion of human health and the environment pur7 suant to subsection (d)(1) and the goal as de8 termined pursuant to subsection (d)(7)(C) by

9 balancing the following factors:

10 ‘‘(i) The effectiveness of the remedy in

11 achieving the goal under subsections (d)(1)

12 and (d)(7)(C).

13 ‘‘(ii) The long-term reliability of the

14 remedy, that is, its capability to achieve

15 long-term protection of human health and

16 the environment.

17 ‘‘(iii) Any short-term risk posed by

18 the implementation of the remedy to the

19 affected community, to those engaged in

20 the cleanup effort, and to the environment.

21 ‘‘(iv) The acceptability of the remedy

22 to the affected community.

23 ‘‘(v) The reasonableness of the cost of

24 the remedy.
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1 ‘‘(vi) The timeframe in which the goal

2 of any such remedy will be achieved in re3 lation to the urgency of the need and the

4 timing of the use of such ground water

5 ‘‘(vii) The implementability of the

6 remedy.

7 ‘‘(B) EARLY EVALUATION AND PHASED

8 REMEDIAL ACTION.—(i) The President shall, as

9 appropriate, employ a phased approach to site

10 characterization and remediation in which rem11 edies are arrived at through a sequence of in12 vestigations and actions. Information gathered

13 in one phase shall be used to inform each suc14 cessive phase until final remediation goals are

15 determined and attained.

16 ‘‘(ii) To facilitate efficient and effective

17 site characterization that promotes early evalua18 tion of remedial alternatives and to prevent the

19 ground water contamination problems from

20 worsening, the President shall ensure, to the ex21 tent practicable, that hydrogeologic and con22 taminant-related information necessary to select

23 final ground water remedial actions, including

24 findings of technical impracticability, shall be

25 collected as part of site characterization activi-
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•HR 4916 IH

1 ties prior to and including the remedial inves2 tigation. Such data shall include information

3 from actions under clause (iii).

4 ‘‘(iii) To facilitate efficient and effective

5 site characterization that promotes early evalua6 tion of remedial alternatives and to prevent the

7 ground water contamination problems from

8 worsening, the President shall, as appropriate,

9 consistent with the factors in subparagraph (A),

10 and to the extent technically practicable from

11 an engineering perspective, implement phased

12 remedial actions to minimize further contami13 nant migration and reduce the risk of exposure

14 to contaminated ground water. Such actions

15 shall be based on sufficient site characterization

16 to ensure achievement of the intended goal of

17 such actions, shall prevent exacerbation of the

18 contamination problem, and shall be monitored

19 to collect detailed information on site character20 ization and potential remedial alternatives.

21 ‘‘(C) MINIMUM REQUIREMENTS.—The

22 President shall select an appropriate remedy for

23 contaminated ground water that may be used

24 for drinking water, subject to subsection
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1 (d)(7)(C), which includes, at a minimum, the

2 following requirements:

3 ‘‘(i) Prevention or elimination of any

4 actual human ingestion of drinking water

5 containing any hazardous substance, pol6 lutant or contaminant at levels in excess of

7 the maximum contaminant level or non8 zero maximum contaminant level goal es9 tablished under title XIV of the Public

10 Health Service Act (the Safe Drinking

11 Water Act) including, as appropriate, the

12 provision of an alternate water supply;

13 ‘‘(ii) Prevention or elimination of any

14 actual human exposure through water that

15 may be used for drinking to any hazardous

16 substances, pollutants, or contaminants at

17 levels in excess of those levels needed to

18 protect human health.

19 ‘‘(iii) Unless technically impracticable

20 from an engineering perspective, prevent

21 impairment of any surface water des22 ignated use established under section 303

23 of the Federal Water Pollution Control Act

24 caused by such hazardous substance, pol25 lutant, or contaminant in any surface
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1 water body into which such contaminated

2 ground water is known or projected to

3 enter.

4 ‘‘(iv) Assurance that source areas in

5 ground water containing hazardous sub6 stances, pollutants, or contaminants shall

7 be contained to the extent technically fea8 sible. Treatment which reduces contamina9 tion shall be applied to the degree nec10 essary to ensure the long-term reliability of

11 such containment remedy. Such decision

12 shall be based on a balancing of the factors

13 in subparagraph (A).

14 ‘‘(v) Assurance that, unless technically

15 impracticable from an engineering perspec16 tive, the contamination exceeding the goals

17 of subsection (d)(7)(C)(i) shall be con18 tained, except as provided in subsection

19 (d)(7)(C)(iv).

20 ‘‘(vi) Provision for long-term monitor21 ing of such ground water, as appropriate

22 (including any information needed for the

23 purposes of review under subsection (c)).

24 ‘‘(D) PERIODIC REVIEW.—Each remedial

25 action conducted pursuant to subsection
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1 (d)(7)(E)(i)(III) shall be reviewed by the Presi2 dent within 10 years after completion of all

3 physical on-site construction, and no less often

4 than every 5 years thereafter as provided in

5 subsection (c). If the President determines that

6 remedial alternatives have become available to

7 attain the goal of subsection (d)(7)(C), the

8 President shall select a new remedy in accord9 ance with this section.

10 ‘‘(5) GENERIC REMEDIES.—In order to stream11 line the remedy selection process and to facilitate

12 rapid voluntary action, the President shall establish,

13 taking into account the factors enumerated in para14 graph (3)(A), cost-effective generic remedies for cat15 egories of facilities, and expedited procedures that

16 include community involvement for selecting generic

17 remedies at an individual facility. To be eligible for

18 selection at a facility, a generic remedy shall be pro19 tective of human health and the environment at that

20 facility. In appropriate cases, the President may se21 lect a generic remedy without considering alter22 natives to the generic remedy.

23 ‘‘(6) INSTITUTIONAL CONTROLS.—Whenever

24 the President selects a remedial action which relies

25 on restrictions on the use of land, water, or other re-
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•HR 4916 IH

1 sources to achieve protection of human health and

2 the environment, the President shall specify the na3 ture of the restrictions required to achieve such pro4 tections, including restrictions on the permissible

5 uses of land, prohibitions on specified activities upon

6 the property, restrictions on the drilling of wells or

7 the use of ground water, or restrictions on the use

8 of surface water, and may ensure that such restric9 tions are incorporated into a hazardous substance

10 easement, as provided by section 104(k). In review11 ing remedial action alternatives which would require

12 the use of such restrictions and providing oppor13 tunity for public comment on those alternatives, the

14 President shall identify the nature of any institu15 tional controls that would be required to implement

16 such restrictions, known or anticipated affected per17 sons, the likely duration of such restrictions, and the

18 anticipated costs of acquiring any appropriate haz19 ardous substance easements and enforcing the ap20 propriate restrictions.’’.

21 SEC. 503. MISCELLANEOUS AMENDMENTS TO SECTION 121.

22 (a) REVIEW.—Section 121(c) (42 U.S.C. 9621(c)) is

23 amended—
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1 (1) in the first sentence, by striking out ‘‘initi2 ation’’ and inserting in lieu thereof ‘‘completion of

3 all physical on-site construction,’’;

4 (2) in the second sentence, by inserting ‘‘(1)’’

5 after ‘‘it is the judgment of the President that’’; and

6 (3) in the second sentence, by inserting after

7 ‘‘section 104 or 106,’’ the following: ‘‘or (2) an in8 terim containment remedy was selected for such site

9 and an appropriate final remedial action is available

10 under subsection (b)(3)(B)(iii) and appropriate to

11 select in accordance with subsection (b)(3)(A) of this

12 section,’’.

13 (b) Section 121(e)(1) (42 U.S.C. 9621(e)(1)) is

14 amended by adding at the end thereof the following: ‘‘Fur15 thermore, no Federal, State, or local permit or permit ap16 plication shall be required for on-site or off-site activities

17 conducted under section 311(b).’’.

18 SEC. 504. RESPONSE AUTHORITIES.

19 (a) STUDIES AND INVESTIGATIONS.—Section

20 104(b)(1) (42 U.S.C. 9604(b)(1)) is amended in the sec21 ond sentence by striking ‘‘studies’’ and all that follows

22 through the end of the sentence and inserting in lieu

23 thereof the following: ‘‘actions, studies, or investigations

24 as he may deem necessary or appropriate to plan and di-
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1 rect response actions or to enforce the provisions of this

2 Act and shall be entitled to recover the costs thereof.’’.

3 (b) DISPOSAL AUTHORITY.—Section 104(j) (42

4 U.S.C. 9604(j)) is amended—

5 (1) in paragraph (1), by striking ‘‘remedial’’ in

6 the first sentence and inserting ‘‘response’’;

7 (2) by striking paragraph (2);

8 (3) by redesignating paragraph (3) as para9 graph (2) and in that paragraph by striking ‘‘es10 tate’’ and inserting ‘‘property’’; and

11 (4) by inserting after paragraph (2) (as redesig12 nated) the following new paragraph:

13 ‘‘(3) DISPOSAL AUTHORITY.—The President is

14 authorized to dispose of any interest in real property

15 acquired for use by the Administrator under this

16 subsection by sale, exchange, donation, or otherwise

17 and any such interest in real property shall not be

18 subject to any of the provisions of section 120 except

19 the notice provisions of section 120(h)(1). Any mon20 eys received by the President pursuant to this para21 graph shall be deposited in the Fund.’’.

22 (c) PRIVATE PARTY REMOVAL LIMITATIONS.—Sec23 tion 104(a)(2) (42 U.S.C. 9604(a)(2)) is amended by add24 ing at the end the following: ‘‘In any case in which imple25 mentation of a removal action is expected to obviate or
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1 in fact does obviate the need to conduct a long-term reme2 dial action, such removal action must—

3 ‘‘(A) comply with the protective concentra4 tion levels and other standards in subsections

5 (b) and (d) of section 121; and

6 ‘‘(B) allow for public participation in ac7 cordance with seciton 117 to the maximum ex8 tent practicable.’’.

9 SEC. 505. REMOVAL ACTIONS.

10 (a) OBLIGATIONS FROM FUND.—Section 104(c)(1)

11 (42 U.S.C. 9604(c)(1)) is amended—

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

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

14 with any remedial action that has been selected or

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

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

17 ‘‘$4,000,000’’; and

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

19 years’’.

20 (b) NON-EMERGENCY REMOVALS.—Section 120(e)

21 (42 U.S.C. 9620(e)) is amended by adding at the end the

22 following new paragraph:

23 ‘‘(7) NOTIFICATION OF AND CONCURRENCE

24 FROM EPA OR STATE FOR NON-EMERGENCY RE25 MOVAL ACTIONS.—(A) Before the commencement of
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1 any non-emergency removal action by a department,

2 agency, or instrumentality of the United States,

3 such department, agency, or instrumentality shall—

4 ‘‘(i) notify the Environmental Protection

5 Agency and the State of the planned removal

6 action; and

7 ‘‘(ii) obtain, in the case of facilities which

8 are listed or proposed for listing on the Na9 tional Priorities List, concurrence in the

10 planned removal action from the Environmental

11 Protection Agency or the State, as applicable.

12 ‘‘(B) The lack of concurrence under clause (ii)

13 shall not delay the commencement of the remedial

14 investigation and feasibility study in accordance with

15 the time requirements of this section. The require16 ments of this paragraph relating to notification and

17 concurrence shall not affect, alter, or supplant, di18 rectly or indirectly, the applicability of any State law

19 to the removal action concerned. Within a reasonable

20 period of time after any emergency removal action is

21 carried out by a department, agency, or instrumen22 tality of the United States, the department, agency,

23 or instrumentality shall notify the Environmental

24 Protection Agency or the State, as appropriate, of

25 the removal action.’’.
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1 SEC. 506. HAZARDOUS SUBSTANCE PROPERTY USE.

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

3 at the end the following:

4 ‘‘(k) HAZARDOUS SUBSTANCE PROPERTY USE.—

5 ‘‘(1) AUTHORITY OF PRESIDENT TO ACQUIRE

6 EASEMENTS.—In order to prevent exposure to, re7 duce the likelihood of, or otherwise respond to a re8 lease or threatened release of a hazardous substance,

9 pollutant, or contaminant, the President may ac10 quire, at fair market value, or for other consider11 ation as agreed to by the parties, a hazardous sub12 stance easement which restricts, limits, or controls

13 the use of land or other natural resources, including

14 specifying permissible or impermissible uses of land,

15 prohibiting specified activities upon property, prohib16 iting the drilling of wells or use of ground water, or

17 restricting the use of surface water.

18 ‘‘(2) USE OF EASEMENTS.—A hazardous sub19 stance easement and notice of a property use restric20 tion under this subsection may be used wherever in21 stitutional controls have been selected as a compo22 nent of a removal or remedial action in accordance

23 with this Act and the National Contingency Plan.

24 Such easements and notices shall not be used in

25 cases in which institutional controls are not relied

26 upon in a removal or remedial action. Whenever
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1 such controls are selected as a component of a re2 moval or remedial action, the President shall ensure

3 that the terms of the controls and, as appropriate,

4 the easement are specified in all appropriate decision

5 documents, enforcement orders, and public informa6 tion regarding the site.

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

8 hazardous substance easement shall be enforceable

9 in perpetuity (unless terminated and released as pro10 vided for in this section) against any owner of the

11 affected property and all persons who subsequently

12 acquire interest in the property or rights to use the

13 property, including lessees, licensees, and any other

14 person with an interest in the property, without re15 spect to privity or lack of privity of estate or con16 tract, lack of benefit running to any other property,

17 assignment of the easement to another party, or any

18 other circumstance which might otherwise affect the

19 enforceability of easements or similar deed restric20 tions under the laws of the State. The easement

21 shall be binding upon holders of any other interests

22 in the property regardless of whether such interests

23 are recorded or whether they were recorded prior or

24 subsequent to the easement, and shall remain in ef-
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1 fect notwithstanding any foreclosure or other asser2 tion of such interests.

3 ‘‘(4) CONTENTS OF EASEMENTS.—A hazardous

4 substance easement shall contain, at a minimum—

5 ‘‘(A) a legal description of the property af6 fected;

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

8 owner or owners of the property as reflected in

9 public land records;

10 ‘‘(C) a description of the release or threat11 ened release; and

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

13 restriction, limitation, or control created by the

14 easement.

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

16 President acquires a hazardous substance easement

17 or assigns a hazardous substance easement to an18 other party, the President shall record a notice of

19 property use restriction in the public land records

20 for the jurisdiction in which the affected property is

21 located. Such a notice shall specify restrictions, limi22 tations, or controls on the use of land or other natu23 ral resources provided for in the hazardous sub24 stance easement.
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1 ‘‘(6) FILING OF NOTICE.—Wherever recording

2 in the public land records is required under this sub3 section, the President shall file the notice or other

4 instrument in the appropriate office within the State

5 (or governmental subdivision) in which the affected

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

7 the State has not by law designated one office for

8 the recording of interests in real property or claims

9 or rights burdening real property, the document or

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

11 United States district court for the district in which

12 the affected property is located.

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

14 The President may acquire a hazardous substance

15 easement by purchase or other agreement, by con16 demnation, or by any other means permitted by law.

17 Compensation for such easement shall be at fair

18 market value, or for other consideration as agreed to

19 by the parties, for the interest acquired. The costs

20 of obtaining such easements, ensuring adequate pub21 lic notice of such easements, and otherwise tracking

22 and maintaining the protections afforded by the

23 easements shall be considered response costs which

24 are recoverable under this Act.
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1 ‘‘(8) ASSIGNMENT OF EASEMENTS TO PARTIES

2 OTHER THAN THE PRESIDENT.—

3 ‘‘(A) AUTHORITY TO ASSIGN.—The Presi4 dent may assign an easement acquired under

5 this subsection to a State or other governmental

6 entity that has the capability of effectively en7 forcing the easement over the period of time

8 necessary to achieve the purposes of the ease9 ment. In the case of any assignment, the ease10 ment shall be fully enforceable by the assignee.

11 Any assignment of such an easement by the

12 President may be made by following the same

13 procedures as are used for the transfer of an

14 interest in real property to a State under sec15 tion 104(j).

16 ‘‘(B) EFFECT OF ASSIGNMENT.—Any in17 terest in property granted to a State or other

18 governmental entity which restricts, limits, or

19 controls the use of land or other natural re20 sources in order to prevent exposure to, reduce

21 the likelihood of, or otherwise respond to, a re22 lease or threatened release of a hazardous sub23 stance, pollutant, or contaminant, and which is

24 expressly designated in writing as a hazardous

25 substance easement within the meaning of this
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1 paragraph, shall create the same rights, have

2 the same legal effect, and be enforceable in the

3 same manner as a hazardous substance ease4 ment acquired by the President regardless of

5 whether the interest in property is otherwise de6 nominated as an easement, covenant, or any

7 other form of property right.

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

9 after the date of the enactment of this subsection,

10 the President shall issue regulations regarding the

11 procedures to be used for public notice of proposed

12 property use restrictions. Such regulations shall en13 sure that before acquiring a hazardous substance

14 easement, and before recording any notice of such

15 easement, the President will give notice and an op16 portunity to comment to the owner of the affected

17 property, all other persons with recorded interests in

18 the property, any lessees or other authorized occu19 pants of the property known to the President, the

20 State and any municipalities in which the property

21 is located, any relevant community work group es22 tablished under section 117, the affected community,

23 and the general public.

24 ‘‘(10) TERMINATION OF EASEMENTS.—An ease25 ment acquired under this subsection shall remain in
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1 force until the holder of the easement executes and

2 records a termination and release in accordance with

3 the terms of the easement and approved by the Ad4 ministrator of the Environmental Protection Agency

5 or the relevant assignee. Such termination shall be

6 recorded in the same manner as the easement.

7 ‘‘(11) ENFORCEMENT.—

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

9 of any restriction, limitation, or control imposed

10 under a hazardous substance easement shall

11 have the same effect as failure to comply with

12 an order issued under section 106 and relief

13 may be sought either in enforcement actions

14 under section 106(b)(1), section 120(g), or sec15 tion 127(e) or in citizens suits under section

16 310. No citizens suit under section 310 to en17 force such a notice may be commenced if the

18 holder of the easement has commenced and is

19 diligently prosecuting an action in court to en20 force the easement.

21 ‘‘(B) ENFORCEMENT ACTIONS.—The

22 President may take appropriate enforcement ac23 tions to ensure compliance with the terms of

24 the easement whenever the Administrator of the

25 Environmental Protection Agency determines
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1 that the terms set forth in the easement are

2 being violated. If the easement has been as3 signed to a party other than the President and

4 that party has not taken appropriate enforce5 ment actions, the President may notify the

6 party of the violation. If the party does not take

7 appropriate enforcement actions within 30 days

8 of such notification, or sooner in the case of an

9 imminent hazard, the President may initiate

10 such enforcement actions.

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

12 Holding a hazardous substance easement shall not

13 subject either the holder thereof or the owner of the

14 affected property to liability under section 107. Any

15 such easement acquired by the President shall not

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

17 120(h).’’.

18 SEC. 507. TRANSITION.

19 (a) EFFECTIVE DATE.—This title, and the amend20 ments made by this title, shall become effective 180 days

21 after the date of enactment of this Act. Remedies selected

22 under the Comprehensive Environmental Response, Com23 pensation, and Liability Act of 1980 following that effec24 tive date shall be selected as provided in section 121(b)

25 of that Act (as amended by this Act) and subject to the
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1 Federal and State requirements specified in section

2 121(d)(7) of that Act (as amended by this Act).

3 (b) CONTINUED EFFECTIVENESS OF REGULATIONS

4 AND GUIDANCE.—Until promulgation of the national

5 goals and the national risk protocol under section 121(d),

6 the President may continue to rely on current regulations

7 and guidance with regard to acceptable risk levels and the

8 conduct of risk assessments.

9 (c) PRIOR RODS.—(1) Nothing in this Act shall

10 place upon the President an obligation to reopen a record

11 of decision signed prior to the effective date of this title.

12 (2) If, pursuant to section 117 of the Comprehensive

13 Environmental Response, Compensation, and Liability Act

14 of 1980, the President determines that a change to a

15 record of decision signed prior to the effective date of this

16 title is necessary, the President may apply the rules in

17 effect at the time the original record of decision was

18 signed.

19 TITLE VI—MISCELLANEOUS

20 SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNER21 SHIP AND MIXED RESPONSIBILITY FACILI22 TIES.

23 Section 120(e) (42 U.S.C. 9620(e)) is amended—

24 (1) by inserting at the end of paragraph (4) the

25 following new subparagraph:
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1 ‘‘(D) A provision allowing for the partici2 pation of other responsible parties (if any) in

3 the response action.’’; and

4 (2) by inserting after paragraph (7) the follow5 ing new paragraphs:

6 ‘‘(8) EXCEPTION TO REQUIRED ACTION.—(A) A

7 department, agency, or instrumentality of the United

8 States that owns or operates a facility at which the

9 department, agency, or instrumentality exercised no

10 regulatory or other control over activities that di11 rectly or indirectly resulted in a release or threat of

12 a release of a hazardous substance shall be subject

13 to the requirements of paragraphs (1) through (6),

14 other than subparagraphs (F) and (G) of paragraph

15 (5), unless and to the extent the department, agen16 cy, or instrumentality demonstrates to the satisfac17 tion of the Administrator that—

18 ‘‘(i) no department, agency, or instrumen19 tality was the primary or sole source or cause

20 of a release or threat of release of a hazardous

21 substance at the facility;

22 ‘‘(ii) the activities either directly or indi23 rectly resulting in a release or threat of a re24 lease of a hazardous substance at the facility
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1 were pursuant to a statutory authority and oc2 curred before 1976; and

3 ‘‘(iii) the person or persons primarily or

4 solely responsible for such release or threat of

5 release are financially viable and are capable of

6 performing or financing all or a portion of the

7 response action at the facility.

8 ‘‘(B) If the conditions listed in clauses (i)

9 through (iii) of subparagraph (A) are not met, the

10 applicable terms of this subsection apply to the de11 partment, agency, or instrumentality of the United

12 States at the facility. Upon determination by the

13 Administrator that a department, agency, or instru14 mentality qualifies for the exception provided by this

15 paragraph, the head of such department, agency, or

16 instrumentality may exercise enforcement authority

17 under section 106. To the extent a person who has

18 been issued an order under the authority of this

19 paragraph seeks reimbursement under the provisions

20 of section 106, the relevant department, agency, or

21 instrumentality, and not the Fund, shall be the

22 source of any appropriate reimbursement. If the rel23 evant department, agency, or instrumentality has

24 failed to obtain the performance of response actions

25 by responsible parties pursuant to an order or con-
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1 sent decree within 12 months after the facility has

2 been listed on the National Priorities List, the ex3 ception provided by this paragraph shall be void and

4 the department, agency, or instrumentality shall, in

5 consultation with the Administrator and appropriate

6 State authorities, commence a remedial investigation

7 and feasibility study for such facility within six

8 months after the expiration of the 12-month period.

9 ‘‘(9) An interagency agreement under this sec10 tion shall in no way impair or diminish the obliga11 tion of any department, agency, or instrumentality

12 of the United States to comply with requirements of

13 applicable law, unless such requirements have been

14 specifically—

15 ‘‘(A) addressed; or

16 ‘‘(B) waived;

17 without objection from the State prior to or at the

18 time the response action is selected pursuant to sec19 tion 121.’’.

20 SEC. 602. CONTENTS OF CERTAIN DEEDS.

21 Section 120(h)(3) (42 U.S.C. 9620(h)(3)) is amend22 ed in the matter following subparagraph (C) by inserting

23 after ‘‘the Administrator’’ both places it appears the fol24 lowing: ‘‘or, in the case of real property that is not part
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1 of a facility on the National Priorities List, to the Gov2 ernor of the affected State’’.

3 SEC. 603. TRANSFERS OF UNCONTAMINATED PROPERTY.

4 Section 120(h)(4)(A) (42 U.S.C. 9620(h)(4)(A)) is

5 amended by striking ‘‘stored for one year or more,’’ in

6 the first sentence.

7 SEC. 604. AGREEMENTS TO TRANSFER BY DEED.

8 Section 120(h) (42 U.S.C. 9620(h)) is amended by

9 adding after paragraph (5) the following new paragraph:

10 ‘‘(6) AGREEMENTS TO TRANSFER BY DEED.—

11 Nothing in this subsection shall be construed to pro12 hibit the head of the department, agency, or instru13 mentality of the United States from entering into an

14 agreement to transfer by deed real property or facili15 ties prior to the entering of such deed.’’.

16 SEC. 605. ALTERNATIVE OR INNOVATIVE TREATMENT

17 TECHNOLOGIES.

18 Section 111(a) is amended by adding after paragraph

19 (6) the following new paragraph:

20 ‘‘(7) ALTERNATIVE OR INNOVATIVE TREAT21 MENT TECHNOLOGIES.—Payment of no more than

22 50 percent of response costs incurred by a poten23 tially liable party in taking actions approved by the

24 Administrator to achieve required levels of response

25 under this Act after employing an alternative or in-
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1 novative technology that fails to achieve a level of re2 sponse required under this Act pursuant to an ad3 ministrative order or consent decree. The Adminis4 trator shall issue guidance on the procedures for the

5 appropriate level of funding for response activities

6 using alternative innovative technologies as defined

7 in section 311(b)(10) that are necessary to achieve

8 a level of response required under this Act. The Ad9 ministrator shall review and update such guidance,

10 as appropriate.’’.

11 SEC. 606. DEFINITIONS.

12 Section 101 (42 U.S.C. 9601) is amended as follows:

13 (1) Paragraph (10)(H) is amended by striking

14 ‘‘subject to’’ and inserting ‘‘in compliance with’’.

15 (2) Paragraph (14) is amended by adding at

16 the end the following: ‘‘The term includes methane,

17 but only when a response action undertaken to ad18 dress a release or threat of release of a hazardous

19 substance (as otherwise defined in this paragraph)

20 at a landfill or similar site also addresses methane.’’.

21 (3) Paragraph (20) is amended—

22 (A) in subparagraph (A), by inserting ‘‘the

23 United States or’’ after ‘‘similar means to’’;

24 (B) in subparagraph (D)—
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1 (i) in the first sentence by inserting

2 ‘‘the United States or’’ after ‘‘does not in3 clude’’;

4 (ii) in the second sentence, by insert5 ing ‘‘any department, agency, or instru6 mentality of the United States or’’ before

7 ‘‘any State’’; and

8 (iii) in the second sentence, by strik9 ing ‘‘a’’ after ‘‘such’’ and inserting ‘‘de10 partment, agency, or instrumentality of the

11 United States or’’; and

12 (C) by adding after subparagraph (D) the

13 following new subparagraphs:

14 ‘‘(E)(i) The term ‘owner or operator’ includes a

15 trust or estate or a person who holds title to a vessel

16 or facility, or otherwise is affiliated with the vessel

17 or facility solely in a fiduciary capacity. Subject to

18 clauses (ii) and (iii), a fiduciary holding such title or

19 having such affiliation shall be personally subject to

20 the obligations and liabilities of an owner or opera21 tor to the same extent as if the vessel or facility

22 were held by the fiduciary free of trust.

23 ‘‘(ii) The personal obligations and liabilities of

24 a fidicuary referred to in clause (i) shall be limited

25 to the extent to which the assets of the trust or es-
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1 tate are sufficient to indemnify the fiduciary, un2 less—

3 ‘‘(I) the obligations and liabilities would

4 have arisen even if the person had not served

5 as fiduciary;

6 ‘‘(II) the fiduciary’s own failure to exercise

7 due care with respect to a vessel or facility

8 caused or contributed to the release of hazard9 ous substances following establishment of the

10 trust, estate, or fiduciary relationship;

11 ‘‘(III) the fiduciary had a role in establish12 ing the trust, estate, or fiduciary relationship,

13 and such trust, estate, or fiduciary relationship

14 has no objectively reasonable or substantial pur15 pose apart from the avoidance or limitation of

16 liability under this Act; or

17 ‘‘(IV) the fiduciary has not complied with

18 such other requirements as the Administrator

19 may set forth by regulation.

20 ‘‘(iii) A fiduciary shall not be personally liable

21 for undertaking or directing another to undertake a

22 response action under section 107(d)(1).

23 ‘‘(F) The term ‘owner or operator’ shall not in24 clude the United States or any department, agency,

25 or instrumentality of the United States or a con-
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1 servator or receiver appointed by a department,

2 agency, or instrumentality of the United States if

3 the United States or the conservator or receiver

4 meets both of the following conditions:

5 ‘‘(i) The United States, conservator, or re6 ceiver acquired ownership or control of a vessel

7 or facility (or any right or interest therein)—

8 ‘‘(I) in connection with the exercise of

9 receivership or conservatorship authority

10 or the liquidation or winding up of the af11 fairs of any entity subject to a receivership

12 or conservatorship, including any subsidi13 ary thereof; and

14 ‘‘(II) in connection with the exercise

15 of any seizure or forfeiture authority.

16 ‘‘(ii) The United States, conservator, or re17 ceiver does not participate in the management

18 of the vessel or facility operations that result in

19 a release or threat of release of hazardous sub20 stances and complies with such other require21 ments as the Administrator may set forth by

22 regulation.’’.

23 (4) Paragraph (23) (relating to the terms ‘‘re24 move’’ and ‘‘removal’’) is amended—

25 (A) in the first sentence—
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1 (i) by striking ‘‘terms’’ and inserting

2 ‘‘term’’;

3 (ii) by striking ‘‘necessary’’ the first

4 place it appears and inserting ‘‘nec5 essarily’’; and

6 (iii) by inserting after ‘‘environment,

7 such actions’’ the phrase ‘‘or combination

8 of such actions’’;

9 (B) in the second sentence by striking

10 ‘‘term includes’’ and inserting ‘‘terms include’’;

11 and

12 (C) by adding at the end the following:

13 ‘‘The term ‘remove’ or ‘removal’ is not limited

14 to emergency situations and includes actions to

15 address future or potential exposures.’’.

16 (5) Paragraph (25) (relating to the terms ‘‘re17 spond’’ and ‘‘response’’) is amended—

18 (A) by striking ‘‘terms’’ and inserting

19 ‘‘term’’;

20 (B) by striking the comma after ‘‘remedial

21 action;’’; and

22 (C) by striking ‘‘related thereto’’ and in23 serting ‘‘(including attorneys’ fees and expert

24 witness fees) and oversight activities related
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1 thereto when such activities are undertaken by

2 the President, a State or Indian Tribe’’.

3 (6) Paragraph (29) (relating to the terms ‘‘dis4 posal’’, ‘‘hazardous waste’’, and ‘‘treatment’’) is

5 amended by inserting before the period the follow6 ing: ‘‘, except that the term ‘hazardous substance’

7 shall be substituted for the term ‘hazardous waste’

8 in the definitions of ‘disposal’ and ‘treatment’ ’’.

9 (7) Paragraph (33) (relating to the term ‘‘pol10 lutant or contaminant’’) is amended by striking ‘‘;

11 except that the’’ and inserting ‘‘. The’’.

12 (8) Paragraph (35) (relating to the term ‘‘con13 tractual relationship’’) is amended—

14 (A) in subparagraph (A)—

15 (i) by striking out clause (iii); and

16 (ii) in the matter preceding clause (i),

17 by striking out ‘‘clause (i), (ii), or (iii)’’

18 and inserting ‘‘clause (i) or (ii)’’;

19 (B) by amending subparagraph (B) to read

20 as follows:

21 ‘‘(B)(i) To establish that the defendant had no

22 reason to know, as provided in clause (i) of subpara23 graph (A) of this paragraph, the defendant must

24 have undertaken, at the time of the acquisition, all

25 appropriate inquiry into the previous ownership and
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1 uses of the facility and its real property in accord2 ance with generally accepted good commercial and

3 customary standards and practices. For the pur4 poses of the preceding sentence and until the Ad5 ministrator issues or designates standards and prac6 tices as provided in clause (ii) of this subparagraph,

7 the court shall take into account any specialized

8 knowledge or experience on the part of the defend9 ant, the relationship of the purchase price to the

10 value of the property if uncontaminated, commonly

11 known or reasonably ascertainable information about

12 the property, the obviousness of the presence or like13 ly presence of contamination at the property, and

14 the ability to detect such contamination by appro15 priate investigation.

16 ‘‘(ii) The Administrator may, by regulation,

17 promulgate standards and practices or, by regula18 tion, designate standards and practices promulgated

19 or developed by others, that satisfy the requirements

20 of this subparagraph. In issuing or designating such

21 standards and practices, the Administrator shall

22 consider factors for the inquiry, including the follow23 ing:

24 ‘‘(I) Conduct of the inquiry by an environ25 mental professional.
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1 ‘‘(II) Inclusion of interviews with past and

2 present owners, operators, and occupants of the

3 facility and its real property for the purpose of

4 gathering information regarding the potential

5 for contamination at the facility and its real

6 property.

7 ‘‘(III) Inclusion of a review of historical

8 sources, such as chain of title documents, aerial

9 photographs, building department records, and

10 land use records, to determine previous uses

11 and occupancies of the real property since it

12 was first developed.

13 ‘‘(IV) Inclusion of a search for recorded

14 environmental cleanup liens, filed under Fed15 eral, State, or local law, against the facility or

16 its real property.

17 ‘‘(V) Inclusion of a review of Federal,

18 State, and local government records, such as

19 waste disposal records; underground storage

20 tank records; and hazardous waste handling,

21 generation, treatment, disposal, and spill

22 records, concerning contamination at or near

23 the facility or its real property.
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1 ‘‘(VI) Inclusion of a visual inspection of

2 the facility and its real property and of adjoin3 ing properties.

4 ‘‘(VII) Any specialized knowledge or expe5 rience on the part of the defendant.

6 ‘‘(VIII) The relationship of the purchase

7 price to the value of the property if

8 uncontaminated.

9 ‘‘(IX) Commonly known or reasonably as10 certainable information about the property.

11 ‘‘(X) The obviousness of the presence or

12 likely presence of contamination at the prop13 erty, and the ability to detect such contamina14 tion by appropriate investigation.

15 ‘‘(iii) In the case of property for residential use

16 or other similar use, purchased by a nongovern17 mental or noncommercial entity, a site inspection

18 and title search that reveal no basis for further in19 vestigation satisfy the requirements of this subpara20 graph.’’; and

21 (C) By adding the following new subpara22 graph at the end thereof:

23 ‘‘(E) The term ‘contractual relationship’ shall

24 not include the initial filing by a claimant of an
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1 unpatented mining claim or the issuance of a patent

2 for any such claim.’’.

3 (9) The following new paragraphs are added

4 after paragraph (38):

5 ‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—

6 The term ‘bona fide prospective purchaser’ means a

7 person who acquires ownership of a facility after the

8 date of enactment of the Superfund Reform Act of

9 1994, or a tenant of such a person, who can estab10 lish each of the following by a preponderance of the

11 evidence:

12 ‘‘(A) All active disposal of hazardous sub13 stances at the facility occurred before that per14 son acquired the facility.

15 ‘‘(B) The person made all appropriate in16 quiry into the previous ownership and uses of

17 the facility and its real property in accordance

18 with generally accepted good commercial and

19 customary standards and practices. The regula20 tions promulgated by the Administrator pursu21 ant to paragraph (35)(B)(ii) shall satisfy the

22 requirements of this subparagraph. In the case

23 of property for residential or other similar use,

24 purchased by a nongovernmental or non25 commercial entity, a site inspection and title
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1 search that reveal no basis for further inves2 tigation satisfy the requirements of this sub3 paragraph.

4 ‘‘(C) The person provided all legally re5 quired notices with respect to the discovery or

6 release of any hazardous substances at the fa7 cility.

8 ‘‘(D) The person exercised appropriate

9 care with respect to hazardous substances

10 found at the facility by taking reasonable steps

11 to stop on-going releases, prevent threatened

12 future releases of hazardous substances, and

13 prevent or limit human or natural resource ex14 posure to hazardous substances previously re15 leased into the environment.

16 ‘‘(E) The person provides full cooperation,

17 assistance, and facility access to persons au18 thorized to conduct response actions at the fa19 cility, including the cooperation and access nec20 essary for the installation, integrity, operation,

21 and maintenance of any complete or partial re22 sponse action at the facility.

23 ‘‘(F) The person is not affiliated with any

24 other person liable for response costs at the fa25 cility, through any direct or indirect familial re-
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1 lationship, or any contractual, corporate, or fi2 nancial relationship other than that created by

3 the instruments by which title to the facility is

4 conveyed or financed.

5 ‘‘(40) FIDUCIARY.—

6 ‘‘(A) Except as provided in subparagraph

7 (B), the term ‘fiduciary’ means a person who

8 owns or controls property—

9 ‘‘(i) as a fiduciary within the meaning

10 of section 3(31) of the Employee Retire11 ment Income Security Act of 1974, or as

12 a trustee, executor, administrator, custo13 dian, guardian, conservator, or receiver

14 acting for the exclusive benefit of another

15 person; and

16 ‘‘(ii) who has not previously owned or

17 operated the property in a non-fiduciary

18 capacity.

19 ‘‘(B) The term ‘fiduciary’ does not include

20 any person described in subparagraph (A)—

21 ‘‘(i) who acquires ownership or control

22 of property to avoid the liability of such

23 person or any other person under this Act;

24 or
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1 ‘‘(ii) who owns or controls property on

2 behalf of or for the benefit of a holder of

3 a security interest.

4 ‘‘(41) MUNICIPAL SOLID WASTE.—The term

5 ‘municipal solid waste’ means all waste materials

6 generated by households, including single and multi7 family residences, and hotels and motels. The term

8 also includes waste materials generated by commer9 cial, institutional, and industrial sources, to the ex10 tent such wastes (A) are essentially the same as

11 waste normally generated by households, or (B) are

12 collected and disposed of with other municipal solid

13 waste or sewage sludge as part of normal municipal

14 solid waste collection services, and, regardless of

15 when generated, would be considered conditionally

16 exempt small quantity generator waste under regula17 tion issued pursuant to section 3001(d) of the Solid

18 Waste Disposal Act (42 U.S.C. 6921(d)). Examples

19 of municipal solid waste include food and yard

20 waste, paper, clothing, appliances, consumer product

21 packaging, disposable diapers, office supplies, cos22 metics, glass and metal food containers, elementary

23 or secondary school science laboratory waste, and

24 household hazardous waste. The term does not in25 clude combustion ash generated by resource recovery
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1 facilities or municipal incinerators, or waste from

2 manufacturing or processing (including pollution

3 control) operations not essentially the same as waste

4 normally generated by households.

5 ‘‘(42) MUNICIPALITY.—The term ‘municipality’

6 means a political subdivision of a State, including a

7 city, county, village, town, township, borough, par8 ish, school district, sanitation district, water district,

9 or other public entity performing local governmental

10 functions. The term also includes a natural person

11 acting in the capacity of an official, employee, or

12 agent of any entity referred to in the preceding sen13 tence in the performance of governmental functions.

14 ‘‘(43) QUALIFIED HOUSEHOLD HAZARDOUS

15 WASTE COLLECTION PROGRAM.—The term ‘qualified

16 household hazardous waste collection program’

17 means a program established by an entity of the

18 Federal Government, a State, a municipality, or an

19 Indian tribe that provides, at a minimum, for semi20 annual collection of household hazardous wastes at

21 accessible, well-publicized collection points within the

22 relevant jurisdiction.

23 ‘‘(44) SEWAGE SLUDGE.—The term ‘sewage

24 sludge’ means solid, semisolid, or liquid residue re25 moved during the treatment of municipal waste
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1 water, domestic sewage, or other waste water at or

2 by publicly owned or federally owned treatment

3 works.

4 ‘‘(45) SITE CHARACTERIZATION.—The term

5 ‘site characterization’ means an investigation that

6 determines the nature and extent of a release or po7 tential release of a hazardous substance, pollutant,

8 or contaminant, and that includes an on site evalua9 tion and sufficient testing, sampling, and other field

10 data gathering activities to analyze whether there

11 has been a release or threat of a release of a hazard12 ous substance, pollutant, or contaminant, and the

13 health and environmental risks posed by such a re14 lease or threat of release. The investigation also may

15 include review of existing information (available at

16 the time of the review), an off-site evaluation, or

17 other measures that the Administrator considers ap18 propriate.

19 ‘‘(46) OWNER, OPERATOR, OR LESSEE OF RESI20 DENTIAL PROPERTY.—The term ‘owner, operator, or

21 lessee of residential property’ refers to a person who

22 owns, operates, manages, or leases residential prop23 erty and who uses or allows the use of the residen24 tial property exclusively for residential purposes. The

25 term ‘residential property’ refers to single or multi-
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1 family residences, including accessory land, build2 ings, or improvements incidental to such dwellings,

3 which are exclusively for residential use.

4 ‘‘(47) SMALL BUSINESS.—The term ‘small busi5 ness’ refers to any business entity that employs no

6 more than 100 individuals and is a ‘small business

7 concern’ as defined under the Small Business Act

8 (15 U.S.C. 631 et seq.).

9 ‘‘(48) SMALL NONPROFIT ORGANIZATION.—The

10 term ‘small nonprofit organization’ means any orga11 nization that does not distribute any part of its in12 come or profit to its members, directors, or officers,

13 employs no more than 100 paid individuals at the

14 involved chapter, office, or department, and was rec15 ognized as a non-profit organization under section

16 501(c)(3) of the Internal Revenue Code of 1986.

17 ‘‘(49) SMALL BUSINESS CONSTRUCTION CON18 TRACTOR.—The term ‘small business construction

19 contractor’ means a person who—

20 ‘‘(A) is a small business as defined by

21 paragraph (47);

22 ‘‘(B) is not—

23 ‘‘(i) taking or required to take any re24 sponse action under this Act or any other
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1 Federal or State law at the facility con2 cerned,

3 ‘‘(ii) taking or required to take any

4 corrective action under the Solid Waste

5 Disposal Act (42 U.S.C. 6901 et seq.) at

6 the facility concerned, or

7 ‘‘(iii) otherwise responding to a re8 lease or threatened release of a hazardous

9 substance, pollutant, or contaminant at the

10 facility concerned;

11 ‘‘(C) did not know or have reason to know

12 of the presence of hazardous substances at the

13 facility concerned before beginning construction

14 activities;

15 ‘‘(D) provided all legally required notices

16 with respect to the discovery or release of any

17 hazardous substances at the facility; and

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

19 hazardous substances discovered in the course

20 of performing the construction activity, includ21 ing precautions against foreseeable acts of third

22 parties, taking into consideration the character23 istics of such hazardous substance, in light of

24 all relevant facts and circumstances.’’.
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1 SEC. 607. RESPONSE CLAIMS PROCEDURES.

2 (a) AMENDMENT OF SECTION 111.—Section

3 111(a)(2) (42 U.S.C. 9611(a)(2)) is amended by inserting

4 after ‘‘under said plan’’ the phrase ‘‘, reasonable in

5 amount based on open and free competition or fair market

6 value for similar available goods and services,’’.

7 (b) AMENDMENT OF SECTION 112.—Section 112(a)

8 (42 U.S.C. 9612(a)(2)) is amended—

9 (1) in the first sentence, by adding after ‘‘un10 less such claim is’’ the following: ‘‘(1) accompanied

11 by an audit prepared by an independent, certified

12 public accountant, and (2)’’; and

13 (2) by inserting after the first sentence the fol14 lowing: ‘‘The Administrator reserves the right to re15 view such audits to determine that the costs for

16 which the claimant is seeking reimbursement are

17 consistent with section 111(a) and, where necessary,

18 withhold claims or a portion thereof which are incon19 sistent with section 111(a).’’.

20 SEC. 608. SMALL BUSINESS OMBUDSMAN.

21 The Administrator of the Environmental Protection

22 Agency shall establish a small business Superfund assist23 ance section within the small business ombudsman office

24 at the Environmental Protection Agency. Such section

25 shall carry out the following functions:
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1 (1) Act as a clearinghouse of information for

2 small businesses regarding the Comprehensive Envi3 ronmental Response, Compensation, and Liability

4 Act of 1980. Such information shall be comprehen5 sible to a lay person and shall include information

6 regarding the allocation process under section 130 of

7 such Act, requirements and procedures for expedited

8 settlements pursuant to section 122(g) of such Act,

9 de minimis and de micromis status, and ability-to10 pay procedures.

11 (2) Provide general advice and assistance to

12 small businesses as to their questions and problems

13 concerning the allocation and settlement processes,

14 except that such advice and assistance shall not in15 clude any legal advice as to liability or any other

16 legal representation. The ombudsman shall not par17 ticipate in the allocation process.

18 (3) Develop proposals and make recommenda19 tions for changes in policies and activities of the En20 vironmental Protection Agency which would better

21 fulfill the goals of title IV of the Superfund Reform

22 Act of 1994 in ensuring equitable, simplified, and

23 expedited allocations and settlements for small busi24 nesses.
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1 SEC. 609. CONSIDERATION OF LOCAL GOVERNMENT

2 CLEANUP PRIORITIES.

3 Section 104(c)(2) is amended—

4 (1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and

5 (2) by adding at the end the following new sub6 paragraph:

7 ‘‘(B) In setting priorities for scheduling work and al8 locating oversight resources for a remedial action at a fa9 cility at which a potentially responsible party that is a

10 State or local government proposes to carry out the reme11 dial action (or a portion thereof), the Administrator

12 should give higher priority to such remedial action (or por13 tion thereof) if the State or local government demonstrates

14 that the remedial action (i) will have a public benefit; and

15 (ii) will result in the property on or adjacent to the facility

16 being returned to productive use. A private potentially re17 sponsible party may request similar consideration, in the

18 Administrator’s discretion. Nothing in this subparagraph

19 shall affect the responsibility of the Administrator to

20 schedule and oversee the conduct of remedial action so as

21 to assure protection of human health and the environ22 ment.’’.

23 SEC. 610. CONSISTENT APPLICATION AMONG REGIONAL

24 OFFICES.

25 Section 115 (42 U.S.C. 9615), as amended by section

26 407, is further amended as follows:
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1 (1) By inserting the following immediately be2 fore ‘‘The President’’: ‘‘(a) PRESIDENTIAL RULE3 MAKING AND DELEGATION AUTHORITY.—’’.

4 (2) By inserting at the end thereof the follow5 ing new subsection:

6 ‘‘(b) CONSISTENT APPLICATION AMONG REGIONAL

7 OFFICES.—Each Regional Administrator should imple8 ment, execute, and enforce this Act and regulations, guid9 ance, and policies established in accordance with this Act

10 by (1) the President (or by the Administrator pursuant

11 to a delegation from the President), or (2) the Adminis12 trator (or by the Deputy Administrator or an Assistant

13 Administrator pursuant to a delegation from the Adminis14 trator).’’.

15 SEC. 611. STUDY OF PARTICIPANTS.

16 (a) STUDY.—The Administrator shall undertake a

17 study of current Environmental Protection Agency proce18 dures for suspension and debarment of persons and busi19 ness entities, particularly response action contractors and

20 to assess the feasibility and cost of creating a nationwide

21 data base to track such persons. The study shall include,

22 but shall not be limited, to the following items:

23 (1) Whether the certification process pursuant

24 to 40 CFR 32 regarding debarment and suspensions

25 is sufficient to uncover those persons who have pre-
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1 viously served as a principal of a business entity af2 filiated or unaffiliated with the certifying entity.

3 (2) Whether the 3-year period for certification

4 is a sufficient length of time to uncover past activi5 ties.

6 (3) Whether the process under Federal regula7 tions for determining false certification is sufficient,

8 particularly for those persons who are attempting to

9 hide past debarment or suspension.

10 (4) The effectiveness of the current debarment

11 and suspension procedures.

12 (5) The practicability of coordination, through

13 a central data base, with other Federal agencies the

14 tracking and sharing of data on such persons who

15 have been debarred or suspended.

16 (6) The effectiveness of debarment and suspen17 sion on the future conduct of persons or business en18 tities with regard to compliance with Federal and

19 State environmental laws.

20 (7) The extent of sharing data within the Envi21 ronmental Protection Agency and among its regional

22 offices.

23 (8) The cost of creating a central data base.

24 (b) REPORT AND RECOMMENDATIONS.—The Admin25 istrator shall report the findings of this study to Congress
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1 within 12 months after the enactment of this Act. The

2 Administrator shall also make a recommendation to Con3 gress whether statutory language or further regulations

4 are necessary to correct any problems or deficiencies that

5 may be uncovered.

6 SEC. 612. PUBLIC COMMENT.

7 Nothing in this Act or any amendments made by this

8 Act shall limit the obligations of the President or the Ad9 ministrator to fully consider and respond to public com10 ments during any available comment period or otherwise

11 abridge the requirements of subchapter II of chapter 5

12 of title 5, United States Code (commonly referred to as

13 the Administrative Procedures Act).

14 SEC. 613. CERTIFICATION OF ENVIRONMENTAL TRAINING

15 AND CERTIFICATION ORGANIZATIONS.

16 (a) REGULATIONS.—(1) Not later than 2 years after

17 enactment of this Act, the Administrator of the Environ18 mental Protection Agency shall publish guidelines, in ac19 cordance with subsection (b), for a model State program

20 for organizations that train and certify individuals to per21 form Phase I Environmental Site Assessments.

22 (2) The guidelines published under paragraph (1)

23 may include, but not be limited to, minimum standards

24 relating to—

25 (A) formal environmental training;
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1 (B) continuing environmental education;

2 (C) environmental certification and testing pro3 cedures;

4 (D) revocation and disciplinary procedures;

5 (E) establishment of a code of ethics;

6 (F) consumer education;

7 (G) certification renewal procedures; and

8 (H) annual reporting of program activities.

9 (b) ESTABLISHMENT OF THE ENVIRONMENTAL CER10 TIFICATION BOARD.—(1) Not later than 60 days after en11 actment of this Act, the Administrator of the Environ12 mental Protection Agency shall establish a certification

13 advisory board to be known as the ‘‘Environmental Certifi14 cation Board’’ (hereafter in this section referred to as the

15 ‘‘Board’’).

16 (2) The Board shall consist of a minimum of 6 mem17 bers, appointed by the Administrator, with a demonstrated

18 knowledge in the environmental field. The Board may in19 clude representatives from the Environmental Protection

20 Agency, environmental interest organizations, the chemi21 cal/manufacturing industry, the environmental consulting

22 service industry, the insurance industry, the banking/in23 vestment industry, professional societies, private sector ac24 creditation organizations, State government, and other ap-
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1 propriate representatives with a knowledge in the environ2 mental field.

3 (3) All members of the Board shall serve on a vol4 untary basis, except those members from the Environ5 mental Protection Agency.

6 (4) The Board shall appoint 1 member to serve as

7 Chairman of the Board who shall exercise the executive

8 and administrative functions of the Board.

9 (5) Not later than 6 months after the date of enact10 ment of this Act, the Board shall issue recommendations

11 to the Administrator which shall include, but not be lim12 ited to, the minimum standards to be established under

13 subsection (a).

14 (c) STATE ADOPTION OF REGULATIONS.—(1) After

15 the publication of the guidelines under subsection (a), any

16 State may adopt regulations identical (except as provided

17 in paragraph (2) of this subsection) to the guidelines pro18 mulgated by the Administrator under subsection (a)(1).

19 (2) Nothing in this section shall be construed to pre20 empt any State from issuing and enforcing, at any time,

21 additional or more stringent guidelines and regulations re22 garding the training and certification of Phase I environ23 mental professionals.

24 (3) Nothing in this section shall be construed to re25 quire a profession or occupation licensed by a State au-
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1 thority and whose scope of practice, as defined by State

2 law, includes Phase I Environmental Site Assessments to

3 obtain certification as a ‘‘certified Phase I Environmental

4 Site Professional’’ as a condition for performing Phase I

5 Environmental Site Assessments.

6 (4) Nothing in this section shall be construed to per7 mit a certified Phase I Environmental Professional to

8 practice within the scope of practice of a licensed profes9 sion or occupation, as defined by State law, unless that

10 individual also meets the requirements of the State licens11 ing statute.

12 (d) DETERMINATION OF COMPLIANCE.—(1) If a

13 State adopts the guidelines issued by the Administrator,

14 any organization that seeks to obtain a determination of

15 compliance with the regulations set forth in subsection (c)

16 may submit to any such State, in which the organization

17 is located, information documenting such compliance.

18 (2) Such State shall make the determination of such

19 organization’s compliance or noncompliance with such reg20 ulations.

21 (3) Upon a determination of compliance under para22 graph (2), the State shall issue notice in writing to such

23 organization, indicating that such organization is an ‘‘Ap24 proved Phase I Environmental Training and Certification

25 Organization’’ in accordance with this Act. Such approval
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1 shall be valid for a term to be set by the State, but no

2 longer than 5 years.

3 (4) A State may charge a reasonable fee, equal to

4 the cost of determining compliance under paragraph (2),

5 to each organization that applies for such determination.

6 Any such fees shall be listed as part of the regulations

7 promulgated under subsection (c).

8 (5) Any organization that has received notice of a de9 termination of compliance from a State under paragraph

10 (3), may issue a diploma, certification, or other form of

11 degree, to any individual who has completed to its satisfac12 tion such organization’s curriculum and training program

13 signifying that the recipient is a ‘‘Certified Phase I Envi14 ronmental Professional’’ qualified to perform Phase I En15 vironmental Site Assessments.

16 (6) A State may periodically, or upon expiration of

17 a notification of a determination of compliance under

18 paragraph (3), review the program, curriculum, facilities,

19 and training methods of any such organization to deter20 mine such organizations continued compliance with the

21 regulations promulgated under subsection (c).

22 (e) DEFINITIONS.—For purposes of this section:

23 (1) PHASE I ENVIRONMENTAL SITE ASSESS24 MENT.—The term ‘‘Phase I Environmental Site As25 sessment’’ means the process by which a person or
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1 entity seeks to determine whether a particular parcel

2 of real property is subject to recognized environ3 mental conditions. These conditions indicate the

4 presence or likely presence of a hazardous substance

5 or pollutant or contaminant on a property under

6 conditions that indicate the existence of a release or

7 threatened release at the facility into structures on

8 the property or into the ground, ground water or

9 surface water of the property.

10 (2) CERTIFIED PHASE I ENVIRONMENTAL PRO11 FESSIONAL.—The term ‘‘Certified Phase I Environ12 mental Professional’’ means any person receiving

13 certification to perform Phase I Environmental Site

14 Assessments from an approved environmental train15 ing and certification organization in accordance with

16 this section.

17 (3) APPROVED PHASE I ENVIRONMENTAL

18 TRAINING AND CERTIFICATION ORGANIZATION.—The

19 term ‘‘Approved Phase I Environmental Training

20 and Certification Organization’’ means Phase I En21 vironmental Training and Certification Organization

22 whose curriculum, program, facilities, training, and

23 testing methods comply with the regulations adopted

24 by a State under this section.
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1 SEC. 614. SAVINGS CLAUSE.

2 Nothing in this Act or any amendment made by this

3 Act shall affect the application of the Atomic Energy Act

4 of 1954 to any facility licensed by the Nuclear Regulatory

5 Commission.

6 SEC. 615. FEDERAL ENTITIES AND FACILITIES.

7 Section 120 (42 U.S.C. 9620) is amended as follows:

8 (1) By amending the heading to read as follows:

9 ‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’.

10 (2) By amending paragraph (1) of subsection

11 (a) to read as follows:

12 ‘‘(1)(A) Each department, agency, and instru13 mentality of the executive, legislative, and judicial

14 branches of the United States shall be subject to,

15 and comply with, all Federal, State, interstate and

16 local requirements, both substantive and procedural

17 (including any requirements for permits, reporting,

18 or any provisions for injunctive relief and such sanc19 tions as may be imposed by a court to enforce such

20 relief), regarding response actions related to, or

21 management of, hazardous substances, pollutants, or

22 contaminants in the same manner, and to the same

23 extent, as any nongovernmental entity is subject to

24 such requirements, including enforcement and liabil25 ity under sections 106 and 107 of this title and the

26 payment of reasonable service charges.
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1 ‘‘(B) The Federal, State, interstate, and local

2 substantive and procedural requirements referred to

3 in subparagraph (A) include, but are not limited to,

4 all administrative orders and all civil and adminis5 trative penalties and fines, regardless of whether

6 such penalties and fines are punitive or coercive in

7 nature or are imposed for isolated, intermittent, or

8 continuing violations. The United States hereby ex9 pressly waives any immunity otherwise applicable to

10 the United States with respect to any such sub11 stantive or procedural requirement (including, but

12 not limited to, any injunctive relief, administrative

13 order or civil or administrative penalty or fine re14 ferred to in the preceding sentence, or reasonable

15 service charge).

16 ‘‘(C) The reasonable service charges referred to

17 in this paragraph include, but are not limited to,

18 fees or charges assessed in connection with the proc19 essing and issuance of permits, renewal of permits,

20 amendments to permits, review of plans, studies,

21 and other documents, and inspection and monitoring

22 of facilities, as well as any other nondiscriminatory

23 charges that are assessed in connection with a State,

24 interstate, or local response program.
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1 ‘‘(D) Neither the United States, nor any agent,

2 employee, or officer thereof, shall be immune or ex3 empt from any process or sanction of any State or

4 Federal court with respect to the enforcement of any

5 injunctive relief.

6 ‘‘(E) No agent, employee, or officer of the Unit7 ed States shall be personally liable for any civil pen8 alty under any Federal or State response law with

9 respect to any act or omission within the scope of

10 their official duties. An agent, employee, or officer of

11 the United States shall be subject to any criminal

12 sanction (including, but not limited to, any fine or

13 imprisonment) under any Federal or State response

14 law, but no department, agency, or instrumentality

15 of the executive, legislative, or judicial branch of the

16 United States shall be subject to any such sanctions.

17 ‘‘(F) The waiver of sovereign immunity pro18 vided in this paragraph shall not apply to the extent

19 a State law would apply any standard or require20 ment to such Federal department, agency, or instru21 mentality in a manner which is more stringent than

22 such standard or requirement would be applied to

23 any other person.

24 ‘‘(G) Nothing in this section shall be construed

25 to affect the liability of any person or entity other
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1 than a department, agency, or instrumentality of the

2 United States under sections 106 and 107 of this

3 Act.

4 ‘‘(H)(i) The Administrator may issue an order

5 under section 106 of this Act to any department,

6 agency, or instrumentality of the executive, legisla7 tive, or judicial branch of the United States. The

8 Administrator shall initiate an administrative en9 forcement action against such a department, agency,

10 or instrumentality in the same manner and under

11 the same circumstances as action would be initiated

12 against any other person.

13 ‘‘(ii) No administrative order issued to such de14 partment, agency, or instrumentality shall become

15 final until such department, agency, or instrumental16 ity has had the opportunity to confer with the Ad17 ministrator.

18 ‘‘(iii) Unless a State law in effect on the effec19 tive date of the Superfund Reform Act of 1994, or

20 a State Constitution, requires the funds to be used

21 in a different manner, all funds collected by a State

22 from the Federal Government from penalties and

23 fines imposed for violation of any substantive or pro24 cedural requirement referred to in subsection (a) of

25 this section shall be used by the State only for
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1 projects designed to improve or protect the environ2 ment or to defray the costs of environmental protec3 tion or enforcement.

4 ‘‘(I) Each such department, agency, and instru5 mentality shall have the right to contribution protec6 tion set forth in section 113, when such department,

7 agency, or instrumentality resolves its liability under

8 this Act.’’.

9 (3) By striking paragraph (4) of subsection (a).

10 (4) By inserting ‘‘(other than the indemnifica11 tion requirements of section 119)’’ after ‘‘respon12 sibility’’ in subsection (a)(3).

13 SEC. 616. WORKER TRAINING AND EDUCATION GRANTS.

14 Section 111(c)(12) (42 U.S.C. 9611(c)(12)) is

15 amended—

16 (1) by striking ‘‘$10,000,000’’ and inserting

17 ‘‘$20,000,000’’; and

18 (2) by inserting before the period at the end

19 ‘‘and $30,000,000 for each of fiscal years 1995,

20 1996, 1997, 1998, and 1999’’.

21 SEC. 617. REPORT AND OVERSIGHT REQUIREMENTS.

22 (a) SUBMISSION TO STATE GOVERNORS.—Section

23 301(h)(1) (42 U.S.C. 9651(h)(1)) is amended in the mat24 ter preceding subparagraph (A) by striking ‘‘to Congress
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1 of such Agency’’ and inserting ‘‘of such Agency to Con2 gress and the Governor of each State’’.

3 (b) PROGRESS REPORT.—Section 301(h)(1)(A) is

4 amended to read as follows:

5 ‘‘(A) A progress report of accomplishments

6 and expenditures on a State-by-State basis, in7 cluding—

8 ‘‘(i) a statement of the number of

9 completed record of decisions, removal ac10 tions, remedial actions, and enforcement

11 actions; and

12 ‘‘(ii) a statement of—

13 ‘‘(I) the aggregate amount ex14 pended in each State;

15 ‘‘(II) the amount expended in

16 each State for site investigation and

17 cleanup activities;

18 ‘‘(III) the amount expended in

19 each State for non site-specific costs;

20 and

21 ‘‘(IV) the amount expended for

22 enforcement actions and cost recovery

23 activities.’’.

24 (c) OTHER REPORT CONTENTS.—Section 301(h)(1)

25 is amended—
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1 (1) in subparagraph (B) by striking the period

2 at the end and inserting ‘‘and removal or remedial

3 action.’’; and

4 (2) in subparagraph (C) by inserting ‘‘, removal

5 action, and remedial action’’ after ‘‘study’’.

6 (d) RESPONSE TO STATE COMMENTS BY EPA.—Sec7 tion 301(h) is amended by adding at the end the following:

8 ‘‘(4) RESPONSE TO STATE COMMENTS BY

9 EPA.—The Administrator of the Environmental Pro10 tection Agency shall respond in writing to any com11 ments submitted to the Administrator by a State re12 garding reports developed under this subsection.’’.

13 SEC. 618. REMEDIAL TECHNOLOGIES.

14 Section 311 (42 U.S.C. 9660) is amended by adding

15 at the end the following:

16 ‘‘(h) REMEDIAL TECHNOLOGIES.—

17 ‘‘(1) REPORT.—Not later than 18 months after

18 the date of the enactment of this subsection, the Ad19 ministrator shall publish a report which—

20 ‘‘(A) identifies existing remedial technology

21 demonstration and development programs con22 ducted by the Administrator, the States, and

23 Federal agencies;
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1 ‘‘(B) identifies and prioritizes remedial

2 technology needs at National Priorities List fa3 cilities; and

4 ‘‘(C) to the extent information is available

5 to the Administrator, identifies and prioritizes

6 remedial technology needs identified through

7 the performance of removal actions at facilities

8 not on the National Priorities List.

9 ‘‘(2) STATE INVOLVEMENT.—In preparing the

10 report pursuant to paragraph (1), the Administrator

11 shall solicit State involvement.’’.

12 SEC. 619. REIMBURSEMENT TO STATE AND LOCAL GOVERN13 MENTS.

14 (a) AMENDMENT OF SECTION 123.—Section 123 (42

15 U.S.C. 9623) is amended to read as follows:

16 ‘‘SEC. 123. REIMBURSEMENT TO STATE AND LOCAL GOV17 ERNMENTS.

18 ‘‘(a) APPLICATION.—Any State or general purpose

19 unit of local government for a political subdivision of a

20 State that is affected by a release or threatened release

21 at any facility may apply to the President for reimburse22 ment under this section.

23 ‘‘(b) REIMBURSEMENT.—

24 ‘‘(1) EMERGENCY RESPONSE ACTIONS.—The

25 President is authorized to reimburse States and local
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1 community authorities for expenses incurred (before

2 or after the enactment of the Superfund Reform Act

3 of 1994) in carrying out emergency response actions

4 necessary to prevent or mitigate injury to human

5 health or the environment associated with the re6 lease or threatened release of any hazardous sub7 stance or pollutant or contaminant. Such actions

8 may include, where appropriate, security fencing to

9 limit access, cleanup of illicit drug laboratories, re10 sponse to fires and explosions, and other measures

11 that require immediate response at the State or local

12 level.

13 ‘‘(2) STATE OR LOCAL FUNDS NOT SUP14 PLANTED.—Reimbursement under this section shall

15 not supplant State or local funds normally provided

16 for response.

17 ‘‘(c) AMOUNT.—(1) The amount of any reimburse18 ment to a local authority under subsection (b)(1) may not

19 exceed $25,000 for a single response. The reimbursement

20 under this section with respect to a single facility shall

21 be limited to the units of local government having jurisdic22 tion over the political subdivision in which the facility is

23 located.

24 ‘‘(2) The amount of any reimbursement to a State

25 under subsection (b)(1) may not exceed $50,000 for a sin-
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1 gle response. The reimbursement under this section with

2 respect to a single facility shall be limited to the State

3 in which the facility is located.

4 ‘‘(3) The total amount made available to State and

5 local governments under subsection (b)(1) may not exceed

6 $50,000 for a single response.

7 ‘‘(d) PROCEDURE.—Reimbursements authorized pur8 suant to this section shall be in accordance with rules pro9 mulgated by the Administrator.’’.

10 (b) AMENDMENT OF SECTION 111.—Paragraph (11)

11 of section 111(c) of such Act is amended—

12 (1) by striking out ‘‘LOCAL GOVERNMENT RE13 IMBURSEMENT.—’’ and inserting in lieu thereof

14 ‘‘STATE AND LOCAL GOVERNMENT REIMBURSE15 MENT.—(A)’’; and

16 (2) by adding at the end the following new sub17 paragraph:

18 ‘‘(B) Reimbursements to States under section

19 123, except that no State may receive more than

20 $2,000,000 in any one fiscal year.’’.

21 (c) DEADLINE FOR REGULATIONS.—The Adminis22 trator of Environmental Protection Agency shall promul23 gate any regulations necessary to implement section 123

24 of the Comprehensive Environmental Response, Com25 pensation, and Liability Act of 1980 (42 U.S.C. 9623),
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1 as amended by subsection (a), not later than 24 months

2 after the date of the enactment of this Act.

3 SEC. 620. STUDY OF SMALL DISADVANTAGED BUSINESS

4 GOALS.

5 The Administrator of the Environmental Protection

6 Agency shall study the advisability and feasibility of insti7 tuting a small disadvantaged business goal program for

8 all contracts entered into by the Federal Government

9 under the Comprehensive Environmental Response, Com10 pensation, and Liability Act of 1980 and shall report the

11 Administrator’s recommendations to Congress within 1

12 year after the date of the enactment of this Act. In carry13 ing out the study, the Administrator shall give due consid14 eration to the small disadvantaged business goals estab15 lished under section 2323 of title 10, United States Code,

16 for the Department of Defense and to the implementation

17 of such goals by a State in any case in which a State is

18 authorized to carry out such Act.

19 SEC. 621. CONFORMING AMENDMENT.

20 Section 104(g)(1) (42 U.S.C. 9604(g)(1)) is amended

21 by striking ‘‘section’’ and inserting in lieu thereof ‘‘Act’’.

22 TITLE VII—FUNDING

23 SEC. 701. AUTHORIZATION OF APPROPRIATIONS.

24 Section 111(a) is amended by striking

25 ‘‘$8,500,000,000 for the 5-year period beginning on the
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1 date of enactment of the Superfund Amendments and Re2 authorization Act of 1986, and not more than

3 $5,100,000,000 for the period commencing October 1,

4 1991, and ending September 30, 1994’’ and inserting

5 ‘‘$9,600,000,000 for the period commencing October 1,

6 1994, and ending September 30, 1999’’.

7 SEC. 702. ORPHAN SHARE FUNDING.

8 Section 111(a) is amended by adding after paragraph

9 (7) (as added by this Act) the following new paragraph:

10 ‘‘(8) ORPHAN SHARE FUNDING.—Payment of

11 orphan shares pursuant to section 130(e) of this

12 Act.’’.

13 SEC. 703. AGENCY FOR TOXIC SUBSTANCES AND DISEASE

14 REGISTRY.

15 Section 111(m) (relating to ATSDR) is amended to

16 read as follows:

17 ‘‘(m) AGENCY FOR TOXIC SUBSTANCES AND DIS18 EASE REGISTRY.—There shall be directly available to the

19 Agency for Toxic Substances and Disease Registry to be

20 used for the purpose of carrying out activities described

21 in subsection (c)(4) of this section and section 104(i) of

22 this Act not less than $100,000,000 per fiscal year for

23 each of fiscal years 1995, 1996, 1997, 1998, and 1999

24 of which $20,000,000 per fiscal year shall be available for

25 the purposes of section 104(i)(15)(C). Any funds so made
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1 available which are not obligated by the end of the fiscal

2 year in which made available shall be turned back to the

3 Fund.’’.

4 SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT,

5 AND DEMONSTRATION PROGRAMS.

6 Section 111(n) is amended to read as follows:

7 ‘‘(n) LIMITATIONS ON RESEARCH, DEVELOPMENT,

8 AND DEMONSTRATION PROGRAM.—

9 ‘‘(1) SECTION 311(a).—From the amounts

10 available in the Fund, not more than the following

11 amounts may be used for the purposes of section

12 311(a) of this title (relating to hazardous substance

13 research, demonstration, and training activities):

14 ‘‘(A) For fiscal year 1995 $40,000,000.

15 ‘‘(B) For fiscal year 1996 $50,000,000.

16 ‘‘(C) For fiscal year 1997 $55,000,000.

17 ‘‘(D) For fiscal year 1998 $55,000,000.

18 ‘‘(E) For fiscal year 1999 $55,000,000.

19 No more than 10 percent of such amounts shall be

20 used for training under section 311(a) of this title

21 for any fiscal year.

22 ‘‘(2) SECTION 311(d).—For each of the fiscal

23 years 1995, 1996, 1997, 1998, and 1999, not more

24 than $5,000,000 of the amounts available in the

25 Fund may be used for the purposes of section
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1 311(d) of this title (relating to university hazardous

2 substance research centers).’’.

3 SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM

4 GENERAL REVENUES.

5 Section 111(p)(1) is amended to read as follows:

6 ‘‘(1) IN GENERAL.—The following sums are au7 thorized to be appropriated, out of any money in the

8 Treasury not otherwise appropriated, to the Hazard9 ous Substance Superfund:

10 ‘‘(A) For fiscal year 1995, $250,000,000.

11 ‘‘(B) For fiscal year 1996, $250,000,000.

12 ‘‘(C) For fiscal year 1997, $250,000,000.

13 ‘‘(D) For fiscal year 1998, $250,000,000.

14 ‘‘(E) For fiscal year 1999, $250,000,000.

15 In addition there is authorized to be appropriated to

16 the Hazardous Substance Superfund for each fiscal

17 year an amount equal to so much of the aggregate

18 amount authorized to be appropriated under this

19 subsection (and paragraph (2) of section 131(b) of

20 this title) as has not been appropriated before the

21 beginning of the fiscal year involved.’’.

22 SEC. 706. ADDITIONAL LIMITATIONS.

23 Section 111 is amended by adding after subsection

24 (p) the following new subsections:
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1 ‘‘(q) CITIZEN INFORMATION AND ACCESS OF2 FICES.—For each of the fiscal years 1995, 1996, 1997,

3 1998, and 1999, not more than $50,000,000 of the

4 amounts available in the Fund may be used for the pur5 poses of section 117(h) of this Act (relating to citizen in6 formation and access offices).

7 ‘‘(r) VOLUNTARY RESPONSE PROGRAMS.—For each

8 of the fiscal years 1995 through 1999, not more than

9 $20,000,000 of the amounts available in the Fund may

10 be used for the purposes of section 128 of this Act (relat11 ing to State voluntary cleanup programs).’’.

12 SEC. 707. USES OF THE FUND.

13 Section 111(a) is amended by adding after paragraph

14 (8) the following new paragraph:

15 ‘‘(9) REIMBURSEMENT OF POTENTIALLY RE16 SPONSIBLE PARTY COSTS.—If a potentially respon17 sible party and the Administrator enter into a settle18 ment under this Act in which the Administrator is

19 reimbursed for its response costs, and if the Admin20 istrator determines, through a Federal audit of re21 sponse the costs, that costs for which the Adminis22 trator was reimbursed:

23 ‘‘(A) are unallowable due to contractor

24 fraud, or
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1 ‘‘(B) are unallowable under the Federal

2 Acquisition Regulations, or

3 ‘‘(C) should be adjusted due to routine

4 contract and Environmental Protection Agency

5 response cost audit procedures,

6 then the Administrator is authorized to use the fund

7 to reimburse a potentially responsible party for any

8 costs identified under subparagraph (A), (B), or (C)

9 of this paragraph.’’.

10 TITLE VIII—ENVIRONMENTAL

11 INSURANCE RESOLUTION FUND

12 SEC. 801. SHORT TITLE.

13 This title may be cited as the ‘‘Environmental Insur14 ance Resolution and Equity Act of 1994’’.

15 SEC. 802. DEFINITIONS.

16 For purposes of this title:

17 (1) APPLICABLE COSTS.—The term ‘‘applicable

18 costs’’ means applicable National Priorities List

19 (NPL) facility costs or applicable non-NPL facility

20 costs. Costs of removal shall be treated as applicable

21 costs only if the removal is conducted in accordance

22 with section 104, 106 or 122 of CERCLA or under

23 the regulations of the Administrator governing re24 moval actions (40 CFR 300.415 or any successor

25 regulations).
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1 (2) APPLICABLE NPL FACILITY COSTS.—The

2 term ‘‘applicable NPL facility costs’’ means the

3 costs for an eligible NPL facility—

4 (A) of response (as defined in section

5 101(25) of CERCLA);

6 (B) for natural resources damages under

7 section 107 of CERCLA; or

8 (C) to defend potential liability for the

9 costs described in subparagraph (A) or (B) or

10 both, including, but not limited to, attorney’s

11 fees, costs of suit, consultant and expert fees

12 and costs, and expenses for testing and mon13 itoring.

14 (3) APPLICABLE NON-NPL FACILITY COSTS.—

15 The term ‘‘applicable non-NPL facility costs’’ means

16 the costs for a non-NPL facility—

17 (A) of removal (as defined in section

18 101(23) of CERCLA); and

19 (B) to defend potential liability for such

20 costs of removal, including, but not limited to,

21 attorney’s fees, costs of suit, consultant and ex22 pert fees and costs, and expenses for testing

23 and monitoring.

24 (4) BOARD.—The term ‘‘Board’’ means the

25 Board of Trustees of the Fund.
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1 (5) CERCLA.—The term ‘‘CERCLA’’ means

2 the Comprehensive Environmental Response, Com3 pensation and Liability Act of 1980 (42 U.S.C.

4 9601 et seq.).

5 (6) ELIGIBLE COSTS.—The term ‘‘eligible

6 costs’’ means the applicable costs incurred with re7 spect to a hazardous substance disposed of at an eli8 gible facility for which an eligible person either (A)

9 has not been reimbursed or (B) has been reimbursed

10 and that are the subject of a dispute between the eli11 gible person and an insurer. The term eligible costs

12 shall not include any costs paid by the United

13 States.

14 (7) ELIGIBLE FACILITY.—The term ‘‘eligible fa15 cility’’ means an eligible NPL facility or an eligible

16 non-NPL facility.

17 (8) ELIGIBLE NPL FACILITY.—The term ‘‘eligi18 ble NPL facility’’ means any facility placed on the

19 National Priority List at any time, at which a haz20 ardous substance was disposed of on or before De21 cember 31, 1985.

22 (9) ELIGIBLE NON-NPL FACILITY.—The term

23 ‘‘eligible non-NPL facility’’ means any site or facility

24 where a removal (as defined in section 101(23) of

25 CERCLA) was conducted pursuant to governmental
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1 direction or oversight under CERCLA and the Na2 tional Contingency Plan at any time, at which a haz3 ardous substance was disposed of on or before De4 cember 31, 1985.

5 (10) ELIGIBLE PERSON.—The term ‘‘eligible

6 person’’ means any person that demonstrates, to the

7 satisfaction of the Resolution Fund, that such per8 son either—

9 (A) has received a notice at any time that

10 it may be a potentially responsible party pursu11 ant to CERCLA with respect to an eligible

12 NPL facility, which notice requests or demands

13 that such party perform response actions or pay

14 response costs or natural resource damages for

15 such facility; or

16 (B) is or was liable, or alleged to be liable,

17 at any time for a removal (as defined in section

18 101(23) of CERCLA) at any eligible facility,

19 and had entered into a valid insurance contract for

20 qualified insurance.

21 (11) FACILITY.—The term ‘‘facility’’ has the

22 same meaning as provided in section 101(9) of

23 CERCLA.

24 (12) FUND.—The term ‘‘Fund’’ means the En25 vironmental Insurance Resolution Fund.
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1 (13) NPL.—The term ‘‘NPL’’ means the Na2 tional Priorities List.

3 (14) PERSON.—The term person means an in4 dividual, firm, corporation, association, partnership,

5 consortium, joint venture, commercial entity or gov6 ernmental unit (including any predecessor in interest

7 or any subsidiary thereof).

8 (15) QUALIFIED INSURANCE.—The term

9 ‘‘qualified insurance’’ means insurance for com10 prehensive general liability or commercial multi-peril

11 insurance coverage for any period prior to January

12 1, 1986. For purposes of this paragraph, com13 prehensive general liability insurance includes broad

14 form liability, general liability, commercial general li15 ability, and excess or umbrella coverage; and com16 mercial multi-peril insurance includes broad form

17 property, commercial package, special multi-peril,

18 and excess or umbrella coverage. Such term shall

19 not include any other insurance, such as environ20 mental impairment liability insurance, whether

21 found in primary, excess, or umbrella coverage.

22 (16) VALID INSURANCE CONTRACT.—The term

23 ‘‘valid insurance contract’’ means a contract for

24 qualified insurance other than any of the following:
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1 (A) An insurance contract with respect to

2 which a person has entered into a settlement

3 with an insurer providing, or where a final

4 judgment has provided, that the contract has

5 been satisfied and that such person has no

6 right to make any further claims under such

7 contract.

8 (B) An insurance contract which covers

9 only a time period prior to the earliest date of

10 the action or status of the insured person which

11 resulted in liability or potential liability under

12 section 107 of CERCLA.

13 (C) An insurance contract with an insur14 ance company which is insolvent or in insol15 vency proceedings.

16 (D) An insurance contract which is the

17 subject of a settlement between the insurance

18 company and the insured pursuant to which the

19 policy has been reformed to include an absolute

20 exclusion for pollution liability (‘‘absolute pollu21 tion exclusion’’).

22 (17) STATE.—The term ‘‘State’’ has the same

23 meaning as provided in section 101(27) of

24 CERCLA.
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1 SEC. 803. ENVIRONMENTAL INSURANCE RESOLUTION

2 FUND.

3 (a) ENVIRONMENTAL INSURANCE RESOLUTION

4 FUND ESTABLISHED.—There is hereby established the

5 Environmental Insurance Resolution Fund.

6 (b) OFFICES.—The principal office of the Fund shall

7 be in the District of Columbia or at such other place as

8 the Fund may from time to time prescribe.

9 (c) STATUS OF RESOLUTION FUND.—Except as ex10 pressly provided in this title, the Fund shall not be consid11 ered an agency or establishment of the United States. The

12 members of the Board of Trustees shall not, by reason

13 of such membership, be deemed to be officers or employees

14 of the United States.

15 (d) BOARD OF TRUSTEES.—

16 (1) IN GENERAL.—The Fund shall be adminis17 tered by a Board of Trustees.

18 (2) MEMBERSHIP.—The Board shall consist of

19 the following:

20 (A) GOVERNMENTAL MEMBERS.—

21 (i) The Administrator of the Environ22 mental Protection Agency or the Adminis23 trator’s designee.

24 (ii) The Attorney General of the Unit25 ed States or the Attorney General’s des26 ignee.
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1 (B) PUBLIC MEMBERS.—Five public mem2 bers appointed by the President not later than

3 60 days after the date of enactment of this

4 title, not less than two of whom shall represent

5 insurers subject to section ll of the Internal

6 Revenue Code of 1986, and not less than two

7 of whom shall represent eligible persons as de8 fined in section 802(10). The public members

9 shall be citizens of the United States.

10 (C) EX-OFFICIO MEMBER.—The Secretary

11 of the Treasury shall serve as an ex officio

12 member of the Board.

13 (3) CHAIR.—The Chair of the Board shall be

14 designated by the President from time to time from

15 among the members described in paragraph (2)(A).

16 No expenditure may be made, or other action taken,

17 by the Fund without the concurrence of the Chair

18 of the Board.

19 (4) COMPENSATION.—Governmental members

20 of the Board shall serve without additional com21 pensation. Public members of the Board shall, while

22 attending meetings of the Board or while engaged in

23 duties related to such meetings or other activities of

24 the Board pursuant to this title, be entitled to re25 ceive compensation at the rate of $200 per day, in-
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1 cluding travel time. While away from their homes or

2 regular places of business, members of the Board

3 shall be allowed travel and actual, reasonable and

4 necessary expenses to the same extent as officers of

5 the United States.

6 (5) TERM OF PUBLIC MEMBERS.—Public mem7 bers of the Board shall serve for a term of 5 years,

8 except that such members may be removed by the

9 President for any reason at any time. A public mem10 ber whose term has expired may continue to serve

11 on the Board until such time as the President ap12 points a successor. The President may reappoint a

13 public member of the Board, but no such member

14 may consecutively serve more than two terms.

15 (6) VACANCIES.—A vacancy on the Board shall

16 be filled in the same manner as the original appoint17 ment, except that such appointment shall be for the

18 balance of the unexpired term of the vacant position.

19 (7) QUORUM.—Four members of the Board

20 shall constitute a quorum for the conduct of busi21 ness.

22 (8) MEETINGS.—The Board shall meet not less

23 than quarterly at the call of the Chair. Meetings of

24 the Board shall be open to the public unless the

25 Board, by a majority vote of members present in
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1 open session, determines that it is necessary or ap2 propriate to close a meeting. The Chair shall provide

3 at least 10 days notice of a meeting by publishing

4 a notice in the Federal Register and such notice

5 shall indicate whether it is expected that the Board

6 will consider closing all or a portion of the meeting.

7 Nothing in this paragraph shall be construed to

8 apply to informal discussions or meetings among

9 Board members.

10 (e) OFFICERS AND EMPLOYEES.—

11 (1) CHIEF EXECUTIVE OFFICER; CHIEF FINAN12 CIAL OFFICER.—(A) The Fund shall have a Chief

13 Executive Officer appointed by the Board who shall

14 exercise any authority of the Fund under such terms

15 and conditions as the Board may prescribe.

16 (B) The Fund shall have a Chief Financial Of17 ficer appointed by the Board.

18 (2) COMPENSATION.—No officer or employee of

19 the Fund may be compensated by the Fund at an

20 annual rate of pay which exceeds the rate of basic

21 pay in effect from time to time for level I of the Ex22 ecutive Schedule under section 5312 of title 5, Unit23 ed States Code. No officer or employee of the Fund,

24 other than a member of the Board, may receive any

25 salary or other compensation from any source other
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1 than the Fund for services rendered during the pe2 riod of employment by the Fund.

3 (3) POLITICAL TEST OR QUALIFICATION.—No

4 political test or qualification shall be used in select5 ing, appointing, promoting, or taking other person6 nel actions with respect to officers, agents, and em7 ployees of the Fund.

8 (4) ASSISTANCE BY FEDERAL AGENCIES.—The

9 Attorney General, the Secretary of the Treasury,

10 and the Administrator of the Environmental Protec11 tion Agency, may to the extent practicable and fea12 sible, and in their sole discretion, make personnel

13 and other resources available to the Fund. Such per14 sonnel and resources may be provided on a reim15 bursable basis, and any personnel so provided shall

16 not be considered employees of the Fund for pur17 poses of paragraph (2).

18 (f) POWERS OF RESOLUTION FUND.—Notwithstand19 ing any other provision of law, except as provided in this

20 title or as may be hereafter enacted by the Congress ex21 pressly in limitation of the provisions of this subsection,

22 the Fund shall have the power—

23 (1) to have succession until dissolved by Act of

24 Congress;
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1 (2) to make and enforce such bylaws, rules and

2 regulations as may be necessary or appropriate to

3 carry out the purposes of this title;

4 (3) to make and perform contracts, agreements,

5 and commitments;

6 (4) to settle, adjust, and compromise, and with

7 or without consideration or benefit to the Fund re8 lease or waive in whole or in part, in advance or

9 otherwise, any claim, demand, or right of, by, or

10 against the Fund;

11 (5) to sue and be sued, complain and defend, in

12 any State, Federal or other court;

13 (6) to determine its necessary expenditures and

14 appoint, employ, and fix and provide for the duties,

15 compensation and benefits of officers, employees, at16 torneys, and agents, all of whom shall serve at the

17 pleasure of the Board; except that all amounts with18 drawn from the Treasury of the United States by or

19 on behalf of the Resolution Fund shall be certified

20 by a federally authorized certifying officer who is an

21 employee of the Federal agency represented by the

22 chair of the Resolution Fund;

23 (7) to hire or accept the voluntary services of

24 consultants, experts, advisory boards, and panels to
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1 aid the Fund in carrying out the purposes of this

2 title; and

3 (8) to take such other actions as may be nec4 essary to carry out the responsibilities of the Fund

5 under this title.

6 (g) BORROWING AUTHORITY.—Nothing in this title

7 shall be construed to permit the Fund to issue any evi8 dence of indebtedness or otherwise borrow money.

9 SEC. 804. RESOLUTION OFFERS.

10 (a) IN GENERAL.—The Fund shall offer one com11 prehensive resolution to each eligible person. The offer

12 shall be for a percentage of all the eligible costs of such

13 eligible person incurred in connection with all eligible fa14 cilities. The amount of the offer shall be determined pur15 suant to section 806.

16 (b) REQUESTS FOR RESOLUTION OFFERS.—

17 (1) IN GENERAL.—An eligible person may, at

18 any time after the promulgation of the interim final

19 regulations under section 812(a), file a request for

20 a resolution offer from the Fund.

21 (2) RESPONSE TO REQUEST.—Not later than

22 180 days after the receipt of a complete request as

23 determined by the Fund, the Fund shall in writ24 ing—
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1 (A) make a resolution offer to each eligible

2 person that has filed a request for a resolution

3 offer; or

4 (B) notify a person filing such a request

5 that such person is not an eligible person.

6 (c) JOINT VENTURES AND SUBSIDIARIES.—A joint

7 venture shall not be aggregated with any individual joint

8 venturer for purposes of this section but shall be treated

9 as a distinct entity for such purposes. All claims by sub10 sidiaries shall be included in a single claim by the cor11 porate parent for purposes of this Act.

12 SEC. 805. DOCUMENTATION OF CLAIMS AND INSURANCE

13 COVERAGE.

14 (a) SCREENING OF CLAIMS.—

15 (1) DENIAL BY REASON OF FELONY.—The

16 Fund may deny a resolution offer to an otherwise el17 igible person for a specific facility if the eligible per18 son has been convicted of a felony under any Fed19 eral or State statute which has a material effect on

20 the response costs or natural resource damage in21 curred at the facility.

22 (2) FILING AND ACTIVE PURSUIT OF CLAIMS.—

23 The Fund may decide not to make an offer to an

24 eligible person unless the eligible person has filed a

25 claim and is actively pursuing the claim. The Fund
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1 may also decide that an offer should be made to any

2 such person.

3 (b) FILING OF CLAIMS.—For the purposes of sub4 section (a), an eligible person shall be deemed to have filed

5 a claim if the eligible person has notified one or more of

6 its insurers of the existence of a claim, or has engaged

7 in active investigation and preparation of a claim, or has

8 filed a lawsuit seeking coverage for eligible costs. Failure

9 to have filed a claim or to have engaged in settlement dis10 cussions before January 1, 1994, shall not be deemed to

11 preclude an eligible person from receiving an offer from

12 the Fund if the eligible person had not received any notice

13 letter from a governmental authority or one or more po14 tentially responsible parties asserting its potential liability

15 under CERCLA at any eligible facility until after January

16 1, 1993.

17 (c) ACTIVE PURSUIT OF CLAIMS.—For purposes of

18 this section, an eligible person shall be considered to be

19 actively pursuing a claim if—

20 (1) the person has filed a lawsuit against an in21 surer, or has filed a motion or another pleading in

22 a lawsuit against an insurer, or has engaged in any

23 discovery in a lawsuit against an insurer between

24 January 1, 1993, and December 31, 1993 regarding

25 eligible costs at an eligible facility;
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1 (2) the person has engaged in settlement dis2 cussions with an insurer between January 1, 1993,

3 and December 31, 1993 regarding eligible costs at

4 an eligible facility;

5 (3) the person has engaged in active investiga6 tion and preparation of a claim before January 1,

7 1994;

8 (4) if the person has received a letter from an

9 insurer rejecting coverage or reserving its rights to

10 reject coverage regarding eligible costs at an eligible

11 facility, the person has sent within 1 year thereafter

12 an additional status report or letter apprising an in13 surer of activities regarding an eligible facility; or

14 (5) the eligible person has sent a letter to an

15 insurer notifying an insurer of the potential exist16 ence of a claim regarding eligible costs at an eligible

17 facility and has received no response from the in18 surer.

19 (d) DOCUMENTATION OF COVERAGE.—

20 (1) EFFECT OF DOCUMENTATION.—Coverage of

21 an eligible person for policy years prior to 1986 and

22 the applicable deductibles and limits on coverage

23 shall be confirmed to the satisfaction of the Fund by

24 the terms of the policies or other documentary proof
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1 of insurance provided by, or for, the eligible person

2 in accordance with this subsection.

3 (2) SUBMISSION OF DOCUMENTARY EVI4 DENCE.—After promulgation of regulations govern5 ing documentation requirements, an eligible person

6 requesting an offer shall submit: copies of its insur7 ance policies, or other documentary evidence suffi8 cient to establish the following six terms of coverage:

9 insurance company, policy number, type of policy,

10 duration of policy, deductible or self-insured reten11 tion, and limit of coverage. Documentary evidence

12 may consist of any documents from an insurance

13 company or broker or documents of the eligible per14 son or other party which are generally contempora15 neous with the term of the policy or with subsequent

16 retrospective rating under the policy. Where docu17 mentary evidence (other than a policy) is relied upon

18 as the proof of coverage, an eligible person must cer19 tify that it has undertaken a good faith investigation

20 of its records, that its submission is complete and

21 accurate to the best of its information and belief,

22 and that it does not have a copy of the insurance

23 policy. If an eligible person submits documentary

24 evidence which does not establish all six terms of

25 coverage but which does establish the name of the
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1 insurance company and one or more other terms evi2 dencing coverage, the named insurance company

3 shall undertake an investigation for any policy or

4 other relevant documents evidencing the eligible per5 son’s coverage. At the conclusion of the investiga6 tion, the named insurance company shall—

7 (A) produce to the Fund any policies or

8 other documents relevant to the eligible per9 son’s claim of coverage; or

10 (B) certify that it has undertaken a good

11 faith investigation of its records and that it has

12 produced any and all policies or documents

13 available to the insurer and relevant to the eli14 gible person’s claim of coverage.

15 Subsequent to the named insurance company’s pro16 duction or certification, the Fund shall decide

17 whether a person has provided adequate proof of in18 surance based on the evidence presented. Submission

19 of the six terms of coverage referred to in this para20 graph shall be treated as adequate proof of insur21 ance.

22 (e) PRIOR SETTLEMENTS.—

23 (1) DISCLOSURE.—Each eligible person shall be

24 required to disclose and certify the amounts and

25 terms of any settlement reached with an insurer for
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1 eligible costs at eligible facilities. In the event that

2 the terms of such a settlement are subject to a pro3 tective order or are otherwise confidential, the eligi4 ble person may provide evidence of the confidential

5 nature of the settlement information to the Fund.

6 Upon receipt of such evidence, the Fund shall be ob7 ligated to preserve the confidentiality of all such set8 tlement information.

9 (2) EFFECT OF TITLE ON PRIOR SETTLE10 MENTS.—This title shall have no effect on prior set11 tlements between eligible persons and an insurer.

12 SEC. 806. AMOUNT OF RESOLUTION OFFERS.

13 (a) RESOLUTION OFFERS.—The Fund shall make

14 resolution offers to each eligible person equal to the appli15 cable percentage (determined under this section) of the

16 lesser of the following:

17 (1) The eligible costs actually incurred by an el18 igible person.

19 (2) The available coverage, as determined under

20 this section.

21 (b) APPLICABLE PERCENTAGE.—

22 (1) IN GENERAL.—For each eligible person that

23 has not established a litigation venue pursuant to

24 subsection (d), the applicable percentage shall be

25 equal to the facility location percentage for that per-
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1 son. For each eligible person that has established

2 one or more litigation venues pursuant to subsection

3 (d), the applicable percentage shall be comprised of

4 one-half of the facility location percentage for that

5 person plus one-half of the venue percentage for that

6 person.

7 (2) FACILITY LOCATION PERCENTAGE.—

8 (A) ONE OR MORE ELIGIBLE NPL FACILI9 TIES.—For each eligible person, the Fund shall

10 establish a facility location percentage. The per11 centage shall be equal to the weighted average

12 of the State percentages for each eligible NPL

13 facility for which such person has been identi14 fied as a potentially responsible party. In deter15 mining such weighted average, each such eligi16 ble facility shall be accorded equal value, except

17 as provided in paragraph (4).

18 (B) NO ELIGIBLE NPL FACILITIES.—For

19 each person not identified as a potentially re20 sponsible party at one or more eligible NPL fa21 cilities but who is, or is alleged to be, liable at

22 any time for removal (as defined in section

23 101(23) of CERCLA) at one or more eligible

24 non-NPL facilities, the Fund shall establish a

25 facility location percentage equal to the weight-
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1 ed average of the State percentages for each

2 such eligible non-NPL facility. In determining

3 such weighted average, each such facility shall

4 be accorded equal value.

5 (3) LITIGATION VENUE PERCENTAGE.—

6 (A) ONE OR MORE ELIGIBLE NPL FACILI7 TIES.—For each eligible person that has estab8 lished one or more litigation venues pursuant to

9 subsection (d) with respect to one or more eligi10 ble NPL facilities, the Fund shall establish a

11 litigation venue percentage. The percentage

12 shall be equal to the weighted average of the

13 State percentages for each eligible NPL facility

14 in each State in which such eligible person has

15 established a litigation venue. In determining

16 such weighted average, each eligible NPL facil17 ity with respect to which such person has estab18 lished a litigation venue shall be accorded equal

19 value.

20 (B) NO ELIGIBLE NPL FACILITIES.—For

21 each eligible person that does not have one or

22 more eligible NPL facilities and has established

23 litigation venue with respect to one or more eli24 gible non-NPL facilities pursuant to subsection

25 (d), the Fund shall establish a litigation venue
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1 percentage equal to the weighted average of the

2 State percentages for each eligible non-NPL fa3 cility in each State in which such eligible person

4 has established a litigation venue. In determin5 ing such weighted average, each eligible non6 NPL facility with respect to which litigation

7 venue has been established shall be accorded

8 equal value.

9 (4) EXTRA WEIGHTING OF LARGE SITES.—In

10 determining the facility location percentage under

11 paragraph (2)(A), the Fund shall count a facility

12 twice for weighting purposes if—

13 (A) the facility is located in the same State

14 as the State in which litigation venue has been

15 established;

16 (B) the facility is included in the eligible

17 person’s coverage litigation in that venue; and

18 (C) total response costs incurred plus esti19 mated response costs exceed $50,000,0000, as

20 established by governmental cost summaries or

21 demands, records or decision, or evidence satis22 factory to the Fund of costs actually incurred.

23 (c) STATE PERCENTAGE.—

24 (1) CONGRESSIONAL FINDINGS.—The Congress

25 finds that as of January 1, 1994, State law gen-
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1 erally is more favorable to eligible persons that pur2 sue claims concerning eligible costs against insurers

3 in some States, that State law generally is more fa4 vorable to insurers with respect to such claims in

5 some States, and that in some States the law gen6 erally favors neither insurers nor eligible persons

7 with respect to such claims or that there is insuffi8 cient information to determine whether such law

9 generally favors insurers or eligible persons with re10 spect to such claims. The Congress further finds

11 that considerations of equity and fairness require

12 that resolution offers made by the Fund must vary

13 to reflect the relative state of the law among the sev14 eral States.

15 (2) STATE PERCENTAGE CATEGORIES.—The

16 States are hereby classified into the following per17 centage categories:

18 (A) 20 PERCENT.—The State percentage

19 shall be 20 percent for: Florida, Maine, Mary20 land, Massachusetts, Michigan, New York,

21 North Carolina, and Ohio.

22 (B) 60 PERCENT.—The State percentage

23 shall be 60 percent for: California, Colorado,

24 Georgia, Illinois, New Jersey, Washington,

25 West Virginia, and Wisconsin.
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1 (C) 40 PERCENT.—For all other States the

2 State percentage shall be 40 percent.

3 (d) LITIGATION VENUE.—For purposes of this sec4 tion, litigation venue is considered established with respect

5 to an eligible person if—

6 (1) on or before December 31, 1993, the eligi7 ble person had pending in a court of competent ju8 risdiction a complaint against an insurer with re9 spect to eligible costs at an eligible facility; and

10 (2) no motion to change venue with respect to

11 such complaint was pending on or before January

12 31, 1994.

13 (e) AVAILABLE COVERAGE.—

14 (1) IN GENERAL.—The Fund shall determine

15 the available coverage for each eligible person by

16 adding the limits of liability contained in all valid in17 surance contracts of insurance (including per occur18 rence, aggregate, primary, excess or other limits)

19 and then by subtracting the total of all deductibles

20 and self-insured retentions applicable to those poli21 cies. In calculating the available coverage and the

22 average deductible pursuant to section 808(c), the

23 Fund shall exclude any deductible or self-insured re24 tention contained in a policy which has already been

25 paid by the eligible person.
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1 (2) PER OCCURRENCE BASIS POLICIES.—For

2 insurance policies with limits or deductibles ex3 pressed on a per occurrence basis without an aggre4 gate limit, the limit or deductible shall be an amount

5 equal to the limit or deductible in the policy multi6 plied by the number of eligible facilities of the eligi7 ble person and by the number of years the policy

8 was in effect. Per occurrence limits or deductibles

9 may be adjusted by the Fund whenever there is an

10 increase in the eligible facilities attributable to an el11 igible party.

12 (f) ADJUSTMENT FOR OWNED PROPERTY SITES.—

13 (1) ADJUSTMENT.—If an eligible person seeks

14 payment of eligible costs for an owned property site,

15 only 70 percent of such eligible costs (including eligi16 ble costs for off site contamination attributable to

17 the owned property) shall be taken into account in

18 making payments under this section.

19 (2) DEFINITIONS.—For purposes of this sub20 section—

21 (A) OWNED PROPERTY SITE.—A facility

22 shall be considered an owned property site if—

23 (i) an eligible person owned or leased

24 the facility at the time of initial disposal or

25 a predecessor company owned or leased the
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1 facility at the time of initial disposal and

2 the predecessor company merged into an

3 eligible person or became the wholly owned

4 subsidiary of an eligible person;

5 (ii) the property owned or leased by

6 the eligible person or predecessor company

7 represents all or a portion of the facility as

8 specifically designated on the NPL or as

9 subject to a removal covered by this title;

10 (iii)(I) an eligible person or prede11 cessor company generated all of the haz12 ardous substances which were disposed of

13 during the period such person or prede14 cessor owned or leased the facility, or (II)

15 an eligible person or predecessor company

16 owned a landfill which is part of the prop17 erty on which a manufacturing or indus18 trial facility is situated, the landfill was

19 used for the treatment, storage, or disposal

20 of waste generated from the manufacturing

21 or industrial facility and from third par22 ties, and the landfill contains waste that is

23 not primarily municipal solid waste or sew24 age sludge as defined in title VI of this

25 Act; and
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1 (iv) the hazardous substances associ2 ated with the owned property constitute

3 the basis for liability at the facility.

4 (B) PROPERTY NOT CONSIDERED OWNED

5 PROPERTY.—A facility shall not be considered

6 owned property of an eligible person for pur7 poses of this section when the eligible person

8 acquired the facility from, or acquired the as9 sets of, a company which engaged in initial dis10 posal of hazardous substances at the facility

11 and the eligible person did not engage in initial

12 disposal of hazardous substances at the facility

13 during its period of ownership. An owned prop14 erty site shall not include a public or commer15 cial landfill primarily used for disposal, storage,

16 or treatment of municipal solid waste or sewage

17 sludge as defined in title VI of this Act.

18 (C) INITIAL DISPOSAL.—For purposes of

19 this paragraph, the term initial disposal means

20 the spilling, pumping, pouring, emitting,

21 emptying, discharging, injecting, dumping, dis22 posing, placing, or leaking of hazardous sub23 stances into the environment caused by the fa24 cility owner but does not include—
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1 (i) any continuing or further leaking,

2 escaping, or leaching of hazardous sub3 stances into the environment during subse4 quent periods of ownership which was not

5 caused by the acts of a subsequent owner;

6 or

7 (ii) any activities undertaken by an

8 owner related to response at the facility.

9 SEC. 807. ACCEPTANCE OF RESOLUTION OFFER.

10 (a) ACCEPTANCE.—

11 (1) ELECTION TO ACCEPT.—An eligible person

12 may, when submitting a request for a resolution to

13 the Fund, make a written irrevocable election to ac14 cept any resolution to be made by the Fund.

15 (2) NOTIFICATION.—An eligible person that

16 does not make an election pursuant to paragraph (1)

17 shall, within 60 days of the receipt of a resolution

18 offer from the Fund, notify the Fund in writing of

19 its irrevocable acceptance or rejection of such offer.

20 An eligible person who does not so accept or reject

21 a resolution offer within 60 days shall be deemed to

22 have made an irrevocable election to reject the offer.

23 (b) ACCEPTANCE OR REJECTION PRIOR TO

24 OFFER.—Upon expiration of the 60-day period imme25 diately following the enactment of this Act, any eligible
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1 person may notify the Fund that such eligible person ac2 cepts or rejects any offer to be issued by the Fund under

3 this title. Any such notice shall be signed by a duly author4 ized officer of the eligible person, as certified by the sec5 retary of the eligible person or by a person with equivalent

6 authority.

7 (c) WAIVER OF INSURANCE CLAIMS.—Any eligible

8 person accepting a resolution offer from the Fund shall

9 agree in writing, subject to reinstatement described in sub10 section (d) to waive, stay, or dismiss any of its existing

11 and future claims against any insurer for eligible costs,

12 including bad faith claims pertaining to actions to recover

13 eligible costs.

14 (d) REINSTATEMENT OF INSURANCE CLAIMS.—If the

15 Fund fails to timely fulfill its obligations to an eligible per16 son under the terms of an accepted resolution offer, such

17 eligible person shall be entitled to reinstate any of its exist18 ing and future claims under a contract for insurance with

19 respect to eligible costs. A shortfall provided for in section

20 808(f) shall not be considered a failure of the Fund to

21 timely fulfill its obligations.

22 SEC. 808. RESOLUTION PAYMENTS.

23 (a) TIME OF PAYMENT; PRE-RESOLUTION COSTS.—

24 The Fund shall make equal annual payments over a period

25 of 10 years for the applicable percentage of eligible costs
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1 incurred by an eligible person on or before the date such

2 person accepts a resolution offer. The Fund may, in its

3 sole discretion, make such payments over a shorter period

4 if the aggregate eligible costs do not exceed $50,000. An

5 eligible person shall submit to the Fund documentation

6 of such costs as the Fund may require. The initial pay7 ment to an eligible person under this paragraph shall be

8 made not later than 60 days after the receipt of docu9 mentation satisfactory to the Fund. Interest shall not ac10 crue on amounts payable pursuant to a resolution offer

11 during the 5-year period beginning on the date of the en12 actment of this Act. In each year thereafter, interest shall

13 accrue on the unpaid balance of the pre-resolution costs

14 in an amount equal to the rate of interest on one year

15 Treasury bills issued on the anniversary of such date of

16 enactment, or if no bills were issued on such date, on the

17 last date such bills were issued prior to such anniversary.

18 (b) TIME OF PAYMENT; POST-RESOLUTION COSTS.—

19 The Fund shall make payments for eligible costs incurred

20 by an eligible person after the date such person accepts

21 a resolution offer to the eligible person, or to a contractor

22 or other person designated by the eligible person, subject

23 to such documentation as the Fund may require. Pay24 ments under this title shall be made not later than 60
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1 days after the receipt of documentation (satisfactory to

2 the Fund) with respect to such costs.

3 (c) ADJUSTMENT FOR DEDUCTIBLE OR SELF INSUR4 ANCE.—In the case of an eligible person that has submit5 ted to the Fund, as proof of status as an eligible person,

6 a valid insurance contract subject to a self-insured reten7 tion or a deductible, payment to such eligible person pur8 suant to a resolution shall be reduced once by an amount

9 equal to the average of the amounts of self-insured reten10 tions and deductibles in all valid insurance contracts of

11 insurance of the eligible person. For purposes of determin12 ing such average in the case of a per occurrence deductible

13 or self-insured retention, the Fund shall only count such

14 deductible or self-insured retention once for each policy

15 year.

16 (d) ADJUSTMENT FOR CERTAIN DUTY-TO-DEFEND

17 COSTS.—If an insurer has incurred and paid costs pursu18 ant to a duty-to-defend clause contained in a contract for

19 insurance, and such costs are the subject of a dispute be20 tween the eligible person and an insurer, the Fund shall

21 reduce payment of a resolution to an eligible person by

22 such amount and pay such amount to the insurer. If such

23 costs were paid by the insurer on or before the date the

24 eligible person accepted a resolution offer made by the

25 Fund, payment to an insurer under this section shall be
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1 made in equal annual installments over a period of 10

2 years, and interest shall not accrue with respect to such

3 costs. The Fund may, in its sole discretion, make such

4 payments over a shorter period if the aggregate costs do

5 not exceed $50,000.

6 (e) EFFECT OF PAYMENTS.—(1) Payments made to

7 an eligible person by the Fund pursuant to a resolution

8 offer shall be treated as payments made by an insurer in

9 satisfaction of the terms and conditions of a contract of

10 insurance. Such payments shall be allocated pro rata to

11 each year in which proof of insurance has been estab12 lished. The amount allocated to each coverage year shall

13 be allocated 100 percent to the primary coverage until it

14 is exhausted and then 100 percent to each successively

15 higher layer of coverage until each such layer is exhausted.

16 (2) No insurer shall be allowed to collect recovery

17 pursuant to a reinsurance contract on the basis of a pay18 ment by the Fund unless such reinsurer is not subject to

19 the fees under section lll of the Internal Revenue

20 Code or has not satisfied its obligations pursuant to such

21 fees.

22 (f) SHORTFALL.—If, in any year during the first 10

23 years after enactment, the Fund does not have sufficient

24 funds available to pay all eligible costs of resolution offers

25 accepted by eligible persons, the Fund shall determine the
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1 amount of the costs which cannot be paid in that year

2 (the ‘‘shortfall’’). The Fund shall allocate the shortfall to

3 the eligible persons in proportion to the size of their pend4 ing claims for reimbursement from the Fund. This short5 fall shall be paid to the eligible person and shall be amor6 tized over the next 5 years, and the amortized amount

7 shall be paid with interest at the rate specified for the

8 amortization of past costs. A shortfall which is being am9 ortized hereunder shall not be considered a default by the

10 Fund, triggering the reinstatement of claims.

11 (g) INTERIM ALLOCATIONS.—An eligible person ac12 cepting an offer of resolution shall be entitled to receive

13 payment of all eligible costs which have been incurred. If

14 an eligible person obtains reimbursement of such eligible

15 costs as a result of a final allocation, contribution action,

16 or otherwise, the eligible person must notify the Fund of

17 the amount of the reimbursement and must either (1) re18 duce its next claim to the Fund for payment of eligible

19 costs by the amount of the reimbursement, or (2) refund

20 the amount of the reimbursement.

21 SEC. 809. REJECTION OF RESOLUTION OFFER AND REIM22 BURSEMENT TO INSURER.

23 If an eligible person rejects a resolution offer (includ24 ing a rejection pursuant to section 807(b)), litigates a

25 claim with respect to eligible costs against 1 or more in-
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1 surers, and obtains a final judgment against, or enters

2 into a settlement with, any such insurer, the Fund—

3 (1) shall reimburse to such insurer or insurers

4 the lesser of the amount of the resolution offer made

5 to the eligible person (or, in the case of a rejection

6 pursuant to section 807(b), the amount which the

7 Fund would have offered) or the final judgment or

8 settlement; and

9 (2) may, if the resolution offer exceeded the

10 final judgment or settlement, reimburse the insurer

11 or insurers for unrecovered reasonable costs and

12 legal fees, except that the total reimbursement under

13 this subsection may not exceed the amount of the

14 resolution offer to the eligible person (or, in the case

15 of a rejection pursuant to section 807(b), the

16 amount which the Fund would have offered).

17 Reimbursements pursuant to this subsection shall be sub18 ject to such documentation as the Fund may require and

19 shall be made by the Fund not later than 60 days after

20 receipt by the Fund of a complete request for reimburse21 ment satisfactory to the Fund.

22 SEC. 810. FINANCIAL STATEMENTS, AUDITS, INVESTIGA23 TIONS, AND INSPECTIONS.

24 (a) IN GENERAL.—The financial statements of the

25 Fund shall be prepared in accordance with generally ac-
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1 cepted accounting principles and shall be audited annually

2 by an independent certified public accountant in accord3 ance with the auditing standards issued by the Comptrol4 ler General. Such auditing standards shall be consistent

5 with the private sector’s generally accepted auditing

6 standards.

7 (b) INVESTIGATIONS AND OTHER AUDITS.—The In8 spector General of the Environmental Protection Agency

9 is authorized to conduct audits and investigations as the

10 Inspector General deems necessary or appropriate.

11 SEC. 811. STAY OF PENDING LITIGATION.

12 (a) ENACTMENT OPERATES AS STAY.—Except as

13 provided in this section, enactment of this title shall oper14 ate as a stay, applicable to all persons other than the Unit15 ed States, of the commencement or continuation, including

16 the issuance or employment of process or service of any

17 pleading, motion, or notice, of any judicial, administrative,

18 or other action with respect to claims for indemnity or

19 other claims arising from a valid insurance contract of

20 qualified insurance concerning insurance coverage for eli21 gible costs.

22 (b) ACTIONS NOT AFFECTED.—Nothing in this title

23 shall be construed to authorize a stay of any action involv24 ing claims that do not concern eligible costs or a valid

25 insurance contract of qualified insurance. Any such claim
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1 shall be severed by operation of law from claims involving

2 eligible costs or valid contracts of insurance of qualified

3 insurance, and the insured party may proceed with the

4 prosecution of the severed claims not involving eligible

5 costs or not involving qualified insurance.

6 (c) TERMINATION OF STAY.—(1) The stay estab7 lished by subsection (a) shall terminate with respect to an

8 eligible person upon the earlier of the following:

9 (A) The rejection of a resolution offer (includ10 ing an early rejection) by such eligible person pursu11 ant to section 807.

12 (B) A determination by the Fund that an offer

13 will not be made to such eligible person or that such

14 person is not an eligible person.

15 (C) A determination by the Fund pursuant to

16 section 816(b) that the minimum participation level

17 has not been achieved.

18 (D) A failure by the Fund at any time after the

19 date 10 years after the enactment of this Act to

20 timely pay to such eligible person a resolution pay21 ment equal to the total amount of eligible costs (in22 cluding shortfalls from prior years) required to be

23 paid to such person under a resolution offer in any

24 year after such date.
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1 (2) The stay established by subsection (a) shall termi2 nate on the date that is 10 years after the enactment of

3 this Act with respect to:

4 (A) A person that becomes an eligible person on

5 or after such date.

6 (B) An eligible person that has not filed a re7 quest for a resolution offer and has not rejected a

8 resolution offer pursuant to section 807(b) before

9 such date.

10 (d) AUTHORITY OF UNITED STATES UNAF11 FECTED.—Nothing in this section shall be construed to

12 limit or affect in any way the discretion or authority of

13 the United States or any party to commerce or continue

14 any allocation process, cost recovery, or other action pur15 suant to the authority of sections 101 through 122a of

16 CERCLA.

17 (e) STATUTE OF LIMITATION TOLLED.—Notwith18 standing any other provision of Federal or State law, any

19 Federal or State statute of limitation concerning the filing

20 or prosecution of an action by an eligible person against

21 an insurer, or by an insurer against an eligible person,

22 with respect to eligible costs shall be tolled during the

23 pendency of the stay of pending litigation established by

24 this title.
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1 SEC. 812. REGULATIONS.

2 (a) PROCEDURES AND DOCUMENTATION.—Not later

3 than 120 days after the date of enactment of this title,

4 the Fund shall publish in the Federal Register for public

5 comment of not more than 60 days interim final regula6 tions concerning procedures and documentation for the

7 submission of requests for resolution offers and the pay8 ment of accepted resolution offers. Not later than 60 days

9 after the close of the public comment period, the Fund

10 shall publish in the Federal Register final regulations con11 cerning such procedures and documentation, which may

12 be amended by the Fund from time to time. The Fund

13 in its discretion may require that requests for resolution

14 offers made before the issuance of final regulations pursu15 ant to this subsection be revised to conform to the require16 ments of such final regulations.

17 (b) OTHER REGULATIONS.—The Fund may prescribe

18 such other regulations, rules and procedures as the Fund

19 deems appropriate from time to time.

20 (c) JUDICIAL REVIEW.—No regulation, rule or proce21 dure prescribed by the Fund shall be subject to review by

22 any court except to the extent such regulation, rule or pro23 cedure is not consistent with a provision of this title. No

24 resolution offer made by the Fund shall be subject to re25 view by any court.
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1 SEC. 813. COURT JURISDICTION AND PENALTIES.

2 (a) JURISDICTION OF FEDERAL COURTS.—Notwith3 standing section 1349 of title 28, United States Code:

4 (1) The Fund shall be deemed to be an agency

5 of the United States for purposes of sections 1345

6 and 1442 of title 28, United States Code.

7 (2) All civil actions to which the Fund is a

8 party shall be deemed to arise under the laws of the

9 United States, and the district courts of the United

10 States shall have original jurisdiction of all such ac11 tions, without regard to amount or value.

12 (3) Any civil or other action, case or con13 troversy in a court of a State, or in any court other

14 than a district court of the United States, to which

15 the Fund is a party may at any time before the trial

16 thereof be removed by the Fund, without the giving

17 of any bond or security, to the district court of the

18 United States for the district and division embracing

19 the place where the same is pending, or, if there is

20 no such district court, to the district court of the

21 United States for the district in which the principal

22 office of the Fund is located, by following any proce23 dure for removal of causes in effect at the time of

24 such removal.
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1 (4) No attachment or execution shall be issued

2 against the Fund or any of its property before final

3 judgment in any State, Federal, or other court.

4 (b) FALSE OR FRAUDULENT STATEMENTS OR

5 CLAIMS.—

6 (1) CRIMINAL PENALTIES.—(A) For purposes

7 of section 287 of title 18, United States Code (relat8 ing to false claims), the Fund shall be considered an

9 agency of the United States and any officer or em10 ployee of the Fund shall be considered a person in

11 the civil service of the United States.

12 (B) For purposes of section 1001 of title 18,

13 United States Code (relating to false statements or

14 entries), the Fund shall be considered an agency of

15 the United States.

16 (2) CIVIL PENALTIES.—Officers and employees

17 of the Fund shall be considered officers and employ18 ees of the United States for purposes of section

19 3729 of title 31, United States Code (relating to

20 false claims).

21 SEC. 814. MISCELLANEOUS PROVISIONS.

22 (a) ADMISSIBILITY OF RESOLUTION OFFER.—No

23 resolution offered by the Fund shall be admissible in any

24 legal action brought by an eligible person against an in25 surer or by an insurer against an eligible person.
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1 (b) RESOLUTION PROCESS NOT ADMISSION OF LI2 ABILITY.—No provision of this title, and no action by an

3 eligible person undertaken in connection with any provi4 sion of this title shall in any way constitute an admission

5 of liability in connection with the disposal of a hazardous

6 substance.

7 (c) PRECEDENTIAL EFFECT.—No provision of this

8 title shall affect or be construed to establish a precedent

9 with respect to any insurance dispute between any person

10 and insurer not subject to a stay under this title.

11 (d) SOVEREIGN IMMUNITY OF THE UNITED

12 STATES.—No obligation or liability of the Fund shall con13 stitute an obligation or liability of the United States, or

14 of any department, agency, instrumentality, officer, or em15 ployee thereof. No person shall have a cause of action of

16 any kind against the United States, or any department

17 agency, instrumentality, officer, or employee thereof with

18 respect to any obligation, liability, or activity of the Fund.

19 SEC. 815. REPORTS.

20 (a) REPORT ON POTENTIAL FOR ESCALATION OF

21 EIRF LIABILITY.—Not later than the end of the 5th year

22 after enactment of this title, the President shall submit

23 a report to Congress assessing the potential liability of the

24 Fund over the next 5-year period. The report shall include

25 recommendations for amendments to address any short-
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1 falls between the projected potential liability of the Fund

2 and the amounts authorized to be raised over such 5-year

3 period.

4 (b) REPORT ON NON-NPL FACILITIES.—The Presi5 dent shall conduct a study of the number of non-NPL fa6 cilities and the average cleanup cost per non-NPL facility

7 and shall report his findings not later than 3 years after

8 the date of enactment.

9 (c) ANNUAL REPORTS.—The Fund shall report annu10 ally to the President and the Congress not later than Jan11 uary 15 of each year on its activities for the prior fiscal

12 year. The report shall include—

13 (1) a financial statement audited by an inde14 pendent auditor; and

15 (2) a determination of whether the fees and as16 sessments imposed by section ll of the Internal

17 Revenue Code of 1986 will be sufficient to meet the

18 anticipated obligations of the Fund.

19 (d) SPECIAL REPORTS.—The Fund shall promptly

20 report to the President and the Congress at any time the

21 Fund determines that the fees and assessments imposed

22 by section ll of the Internal Revenue Code of 1986 will

23 be insufficient to meet the anticipated obligations of the

24 Fund.
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1 SEC. 816. EFFECTIVE DATE.

2 (a) IN GENERAL.—This title shall take effect on the

3 date of enactment of this Act.

4 (b) MINIMUM PARTICIPATION LEVEL BY ELIGIBLE

5 PERSONS.—

6 (1) IDENTIFICATION OF LITIGATING ELIGIBLE

7 PERSONS.—Each insurance company providing in8 surance coverage to eligible persons shall submit to

9 the Fund, within 30 days after the enactment of this

10 Act, a list of all eligible persons which filed suit

11 against that company for eligible costs prior to the

12 enactment of this Act and shall notify each eligible

13 person which is on the list.

14 (2) REQUESTS FOR APPLICABLE PERCENT15 AGE.—Each eligible person identified on a list under

16 paragraph (1) shall file a request for its applicable

17 percentage (as determined under section 806(b))

18 with the Fund within 60 days after the enactment

19 of this Act. The Fund shall determine the applicable

20 percentage of the eligible person and notify the eligi21 ble person of such percentage within 90 days of en22 actment. Each eligible person receiving such notifi23 cation shall decide whether to accept or reject the

24 applicable percentage determination within 135 days

25 of enactment. An eligible person which has made an

26 early acceptance or rejection pursuant to section
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1 807(b) shall be deemed to have accepted or rejected

2 its applicable percentage, as the case may be. Any

3 eligible person which does not file such a request

4 within such period, and any eligible person which

5 files such a request and does not reject the applica6 ble percentage determination within 135 days after

7 the enactment of this Act, shall be deemed to have

8 accepted the determination solely for the purposes of

9 this section.

10 (3) MINIMUM PARTICIPATION LEVEL.—Within

11 150 days after enactment, the Fund shall deter12 mine—

13 (A) the number of eligible persons on the

14 list under paragraph (1), and

15 (B) the weighted average (as determined

16 under paragraph (4)) of such eligible persons,

17 which have accepted or rejected applicable percent18 age determinations under this subsection. If more

19 than 15 percent of the eligible persons on such list

20 or more than a weighted average of 15 percent of

21 such eligible persons have rejected such determina22 tions, the provisions of this title and the insurance

23 fee provisions of title IX shall cease to have any

24 force and effect, and any fees paid by insurance

25 companies which have not been utilized for adminis-
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1 tration of the Fund shall be refunded to those com2 panies.

3 (4) WEIGHTED AVERAGE.—The weighted aver4 age of eligible persons accepting or rejecting applica5 ble percentage determinations shall be determined by

6 multiplying the acceptances or rejections by eligible

7 persons listed under paragraph (1) times the num8 ber of each such person’s eligible facilities (without

9 regard to whether or not any such is the subject of

10 any lawsuit).

11 SEC. 817. TERMINATION OF AUTHORITY TO OFFER AND AC12 CEPT RESOLUTION.

13 (a) AUTHORITY TO ACCEPT REQUEST FOR RESOLU14 TION.—The authority of the Fund to accept requests for

15 resolution shall terminate on the date 10 years after the

16 enactment of this Act.

17 (b) AUTHORITY TO OFFER RESOLUTIONS.—The au18 thority of the Fund to offer resolutions to eligible persons

19 shall terminate after the date 10 years and 180 days after

20 the date of the enactment of this Act.

21 (c) CONTINUING OBLIGATIONS.—Until termination

22 of the Fund, the Fund shall continue to—

23 (1) make payments pursuant to resolution of24 fers for any eligible facility which is identified at the
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1 time of acceptance of the resolution offer or within

2 10 years after the enactment of this Act; or

3 (2) reimburse insurers with respect to litigation

4 commenced or continued in connection with a resolu5 tion offer made on or before the date 10 years after

6 the date of the enactment of this Act, where the res7 olution offer was rejected by an eligible person or

8 not acted upon by an eligible person.

9 SEC. 818. TERMINATION OF FUND.

10 If, during any two-year calendar period commencing

11 after the date 10 years after the date of the enactment

12 of this Act, no eligible person makes a claim to the Fund

13 for payment of eligible costs, the Fund shall terminate,

14 and all amounts remaining in the Fund shall be deposited

15 in the General Fund of the Treasury.

16 TITLE IX—TAXES

17 SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE CODE

18 OF 1986.

19 (a) Section 59A(e)(1) of the Internal Revenue Code

20 of 1986 (26 U.S.C. 59A(e)(1)) is amended by striking

21 ‘‘January 1, 1996’’ and inserting instead ‘‘January 1,

22 2001’’.

23 (b) Section 4611(e) of the Internal Revenue Code of

24 1986 (26 U.S.C. 4611(e)) is amended—
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1 (1) in paragraph (1), by striking ‘‘December

2 31, 1986’’ and inserting instead ‘‘December 31,

3 1995’’;

4 (2) in paragraph (2)—

5 (A) by striking ‘‘December 31, 1993 or

6 December 31, 1994’’ and inserting instead

7 ‘‘December 31, 1998 or December 31, 1999’’;

8 (B) by striking ‘‘December 31, of 1994 or

9 1995, respectively’’ and inserting instead ‘‘De10 cember 31 of 1999 or 2000, respectively’’; and

11 (C) by striking ‘‘1994 or 1995’’ the last

12 place it appears and inserting instead ‘‘1999 or

13 2000’’;

14 (3) in paragraph (3)(A), by striking ‘‘January

15 1, 1987, and ending December 31, 1995’’ and in16 serting instead ‘‘January 1, 1996, and ending De17 cember 31, 2000’’; and

18 (4) in paragraph (3)(B)—

19 (A) in the title thereof, by striking ‘‘Janu20 ary 1, 1996’’ and inserting ‘‘January 1, 2001’’;

21 and

22 (B) by striking ‘‘Fund before January 1,

23 1996’’ and inserting instead ‘‘Fund before Jan24 uary 1, 2001’’.
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1 SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON IN2 SURANCE COMPANIES.

3 (a) IN GENERAL.—The Internal Revenue Code of

4 1986 is amended by inserting after section ll the fol5 lowing new section:

6 ‘‘SEC. . ENVIRONMENTAL FEES AND ASSESSMENTS ON

7 INSURANCE COMPANIES.

8 ‘‘[RESERVED]’’.

9 (b) CLERICAL AMENDMENTS.—The table of sections

10 for chapter ll of the Internal Revenue Code of 1986

11 is amended by inserting after the item relating to section

12 ll the following:

‘‘Sec. . Environmental fees and assessments on insurance

companies.’’.

13 SEC. 903. FUNDING PROVISIONS FOR ENVIRONMENTAL IN14 SURANCE RESOLUTION FUND.

15 (a) IN GENERAL.—

16 (1) Except as provided in section 802(f)(7) of

17 this Act, all expenditures of the Resolution Fund

18 shall be paid out of the fees and assessments im19 posed by section ll of the Internal Revenue Code.

20 (2) Except as may be expressly authorized by

21 the Secretary of the Treasury, all funds of the Reso22 lution Fund shall be maintained in the Treasury of

23 the United States. The Secretary may provide for

24 the disbursement of such funds to the Resolution
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1 Fund or on behalf of the Resolution Fund under

2 such procedures, terms and conditions as the Sec3 retary may prescribe.

4 (b) TRANSFER TO RESOLUTION FUND.—The Sec5 retary of the Treasury shall transfer to the Resolution

6 Fund on October 1 of fiscal year 1995, 1996, 1997, 1998

7 and 1999, an amount equal to the fees and assessments

8 anticipated to be collected pursuant to section ll of the

9 Internal Revenue Code of 1986 during the then current

10 fiscal year.

11 (c) ADJUSTMENTS.—In each succeeding fiscal year

12 the Secretary of the Treasury shall adjust the amounts

13 transferred pursuant to paragraph (2) to reflect actual

14 collections of fees and assessments during the prior fiscal

15 year, except that with respect to the transfer made on Oc16 tober 1, 1999, the Resolution Fund shall reimburse the

17 Secretary the amount of such transfer subsequently deter18 mined by the Secretary to have exceeded actual collections

19 of fees and assessments during such fiscal year.

20 SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.

21 The Resolution Fund, including its capital, reserves,

22 surplus, security holdings, and income shall be exempt

23 from all taxation now or hereafter imposed by the United

24 States (including any territory, dependency or possession
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1 thereof) or any State, county, municipality or local taxing

2 authority.

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