I

104TH CONGRESS

1ST SESSION H. R. 1616

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to provide a process for the allocation of liability

among potentially responsible parties at Superfund sites.

IN THE HOUSE OF REPRESENTATIVES

MAY 11, 1995

Mr. UPTON (for himself and Mr. BOUCHER) introduced the following bill;

which was referred to the Committee on Commerce, and in addition to

the Committee on Transportation and Infrastructure, for a period to be

subsequently determined by the Speaker, in each case for consideration

of such provisions as fall within the jursidiction of the committee concerned

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to provide a process

for the allocation of liability among potentially responsible parties at Superfund sites.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. ALLOCATION OF LIABILITY AT MULTIPARTY

2 FACILITIES UNDER SUPERFUND.

3 The Comprehensive Environmental Response, Com4 pensation, and Liability Act of 1980 is amended by insert5 ing the following new section after section 126:

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

7 ‘‘(a) SCOPE.—

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

9 non-federally owned facility listed on the National

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

12 remedial action on or after February 3, 1995, the

13 Administrator shall initiate the allocation process

14 under this section. This paragraph shall not apply to

15 response actions selected prior to such date.

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

19 parties, for any remedial action selected by the

20 President before February 3, 1995, the Adminis21 trator shall initiate the allocation process under this

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

24 United States with respect to the remedial action or

25 which is performing the remedial action pursuant to

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

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

4 facility other than a facility referred to in paragraph

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

6 parties.

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

8 process under this section shall not apply to any of

9 the following:

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

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

14 ‘‘(B) A facility at which all of the poten15 tially responsible parties are liable or potentially

16 liable as facility owners or operators pursuant

17 to section 107(a)(1) or (2).

18 ‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An allo19 cation under this section, shall apply to all remedial

20 actions selected by the President on or after Feb21 ruary 3, 1995, for a facility (but not to those reme22 dial actions described in paragraph (2)), unless the

23 allocator determines that the allocation should ad24 dress only one or more of such remedial actions.
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1 ‘‘(6) MULTIPLE FACILITIES.—Where appro2 priate, the Administrator may initiate a single allo3 cation process under this section for more than 1 fa4 cility.

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

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

7 section shall not be construed to require—

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

9 to this section; or

10 ‘‘(B) the conferral of reimbursement rights

11 pursuant to this section.

12 ‘‘(8) SETTLEMENT OFFERS AFTER COMMENCE13 MENT OF LITIGATION.—The provisions of this sec14 tion shall not apply to any offer of settlement made

15 after expiration of the moratorium period under sub16 section (b).

17 ‘‘(b) MORATORIUM ON COMMENCEMENT OR CON18 TINUATION OF SUITS.—

19 ‘‘(1) MORATORIUM.—No person may assert any

20 claim for response costs pursuant to section 107 of

21 this Act or commence any civil action seeking recov22 ery of any response costs in connection with a re23 sponse action for which an allocation is required

24 under subsection (a)(1) or (2), or for which the Ad25 ministrator has initiated an allocation under sub-
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1 section (a)(3), until 90 days after issuance of the

2 allocator’s report under subsection (h) or (m),

3 whichever is later.

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

5 for response costs pursuant to section 107 of this

6 Act or an action seeking recovery of response costs

7 in connection with a response action for which an al8 location is to be performed under this section is

9 pending—

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

11 Superfund Reform Act of 1994, or

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

13 the action or claim shall be stayed until 90 days

14 after the issuance of the allocator’s report under

15 subsection (h) or (m), unless the court determines

16 that a stay will result in manifest injustice.

17 ‘‘(3) STATUTE OF LIMITATIONS.—Any applica18 ble limitations period with respect to a cause of ac19 tion subject to paragraph (1) shall be tolled from the

20 earlier of the following until 180 days after the issu21 ance of the allocator’s report under subsection (h) or

22 (m) has been issued by the allocator:

23 ‘‘(A) The date of listing of the facility on

24 the National Priorities List.
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1 ‘‘(B) The commencement of the allocation

2 process pursuant to this section.

3 ‘‘(c) COMMENCEMENT OF ALLOCATION.—

4 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa5 cilities subject to this section, the Administrator

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

7 days after the commencement of the remedial inves8 tigation, initiate a thorough investigation and search

9 for all potentially responsible parties, using his au10 thorities under section 104. Any person may submit

11 information to the Administrator concerning any po12 tentially responsible party at the facility, and the

13 Administrator shall consider such information in

14 carrying out the responsible party search.

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

16 As soon as practicable after receipt of sufficient in17 formation, but not more than 12 months after the

18 commencement of the remedial investigation, the

19 Administrator shall take each of the following ac20 tions:

21 ‘‘(A) The Administrator shall notify any

22 potentially responsible party who the Adminis23 trator determines is eligible for an expedited

24 final settlement in accordance with section

25 122(g)(1)(A) of its eligibility, based on informa-
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1 tion available to the Administrator at the time

2 the determination is made. Any such informa3 tion that is not confidential shall, to the extent

4 practicable, be made available by the Adminis5 trator to the party at the time of the settlement

6 offer.

7 ‘‘(B) The Administrator shall submit a

8 written settlement offer to each party notified

9 under subparagraph (A) no later than 60 days

10 after such notification.

11 ‘‘(3) PRELIMINARY NOTICE TO OTHER PAR12 TIES.—As soon as practicable after receipt of suffi13 cient information, but not later than 18 months

14 after commencement of the remedial investigation,

15 the Administrator shall—

16 ‘‘(A) notify any party not previously noti17 fied under paragraph (2) who the Adminis18 trator determines is eligible for an expedited

19 final settlement in accordance with section

20 122(g)(1)(A) of its eligibility, based on informa21 tion available to the Administrator at the time

22 the determination is made and submit a written

23 settlement offer to each party notified pursuant

24 to this subparagraph no later than 60 days

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

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

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

8 ‘‘(D) make available all responses to the

9 Administrator’s information requests, as well as

10 other relevant information concerning the facil11 ity and potentially responsible parties, to the

12 notified parties, to the extent it is available to

13 the Administrator.

14 The Administrator shall not make available any

15 privileged or confidential information, except as oth16 erwise authorized by law. The Administrator shall

17 take the actions specified in this paragraph within 9

18 months after the date of enactment of this section

19 for all facilities eligible for allocation under sub20 section (a)(1) or (a)(2) for which the responsible

21 party search required by a paragraph (1) was sub22 stantially complete prior to the date of the enact23 ment of this section.
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1 ‘‘(4) STATUS OF PARTIES.—At the time of pro2 posing the list of potentially responsible parties

3 under paragraph (3), the Administrator shall—

4 ‘‘(A) identify parties that are eligible for

5 expedited settlement pursuant to section

6 122(g);

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

8 for such expedited settlement; or

9 ‘‘(C) determine that there is insufficient

10 information to ascertain whether or not the

11 party is entitled to such expedited settlement.

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

13 days after information has been made available pur14 suant to paragraph (3), the parties identified by the

15 Administrator and members of the affected commu16 nity shall have the opportunity to identify and nomi17 nate additional potentially responsible parties or oth18 erwise provide information relevant to the facility or

19 such potentially responsible parties. This period may

20 be extended by the Administrator for an additional

21 30 days upon request of any person.

22 ‘‘(B) Any proposal for the addition of any po23 tentially responsible party shall be supported by full

24 disclosure to the Administrator of all available infor-
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1 mation concerning that party’s liability and con2 tribution of hazardous substances to the site.

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

4 Within 60 days after the end of the period specified

5 in paragraph (5)(A) for the proposal of additional

6 parties, the Administrator shall—

7 ‘‘(i) issue a list of parties subject to the al8 location process (hereinafter referred to in this

9 section as the ‘allocation parties’);

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

11 proposed additional parties, which parties the

12 Administrator has determined, in the Adminis13 trator’s sole discretion:

14 ‘‘(I) to be eligible for expedited settle15 ment pursuant to section 122(g),

16 ‘‘(II) not to be eligible for such expe17 dited settlement, and

18 ‘‘(III) for whom insufficient informa19 tion exists to determine whether or not the

20 party is eligible for such expedited settle21 ment; and

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

23 brief explanation) those parties as to which the

24 Administrator has determined, in the Adminis25 trator’s sole discretion, that there is an inad-
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1 equate basis in law or fact to determine that

2 the party is potentially liable.

3 For each party identified under clause (iii), the Ad4 ministrator shall further identify whether that party,

5 if liable, would be eligible for an expedited settle6 ment.

7 ‘‘(B) At the time of issuance of the list of par8 ties provided for in subparagraph (A), the Adminis9 trator shall provide the potentially responsible par10 ties who received notice under this paragraph with

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

12 United States and who the Administrator deter13 mines, in the Administrator’s sole discretion, are

14 qualified to perform an allocation at the facility.

15 ‘‘(C) De minimis parties the Administrator

16 identifies as potentially liable but entitled to expe17 dited settlement pursuant to this section, shall not

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

19 (except to the extent required to determine the or20 phan share pursuant to subsection (h)), unless that

21 party fails to reach an agreement with the President

22 on settlement terms within 30 days after the offer.

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

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

25 a party is liable based on the information presented
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1 by the nominating party or otherwise available to

2 the Administrator, the determination shall have the

3 following effect:

4 ‘‘(i) With respect to a party that the Ad5 ministrator has determined to be—

6 ‘‘(I) exempt from liability pursuant to

7 section 107(a)(6)(A) or (B); or

8 ‘‘(II) not liable on some other basis

9 but who, if liable, would be eligible for an

10 expedited settlement,

11 the Administrator’s determination shall mean

12 that the party shall not be subject to, and shall

13 not be assigned a share in, the allocation.

14 ‘‘(ii) With respect to all other parties, the

15 Administrator’s determination shall be accorded

16 deference by the allocator. For such parties the

17 allocator shall consider the Administrator’s de18 termination together with the allocation factors

19 listed in subsection (h)(2).

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

21 purposes of this subsection shall not be subject to

22 judicial review, nor shall any determination or expla23 nation provided for purposes of the allocation be ad24 missible for any purpose in an action commenced by
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1 the United States against the party that is the sub2 ject of the determination or any other party.

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

4 any party the allocator deems should receive such a

5 share in consideration of the allocation factors in6 cluding the Administrator’s determinations under

7 subparagraph (C).

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

9 pursuant to the nomination of a potentially respon10 sible party pursuant to subsection (c)(5), but as11 signed a zero share by the allocator, that party’s

12 costs of participating in the allocation (including

13 reasonable attorneys’ fees) shall be borne by the

14 party who proposed the addition of the party to the

15 allocation.

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

17 30 days after the final list of parties is issued pursuant

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

19 submit a written settlement offer to any party identified

20 as a potentially responsible party pursuant to this section

21 who the Administrator has determined to be eligible for

22 an expedited final settlement in accordance with section

23 122(g)(1)(A), and who has not entered into a settlement

24 with the United States regarding the matters being ad25 dressed by the allocation.
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1 ‘‘(2) The President shall not include any premia pur2 suant to section 122(g) in a settlement offer made pursu3 ant to paragraph (1) more than 60 days after the date

4 the offer is required to be made pursuant to paragraph

5 (1) to a party that is a small business, as defined in sec6 tion 101(47).

7 ‘‘(e) SELECTION OF ALLOCATOR.—

8 ‘‘(1) PROPOSAL OF ADDITIONAL CAN9 DIDATES.—Any party identified by the Adminis10 trator under subsection (c) may propose any person

11 whom such party deems qualified for selection as an

12 allocator in addition to those proposed from the list

13 provided under subsection (c)(6)(B).

14 ‘‘(2) SELECTION OF ALLOCATOR BY ALLOCA15 TION PARTIES.—(A) The allocation parties shall se16 lect an allocator from the list of allocators proposed

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

18 following voting method with each allocation party

19 having a single vote:

20 ‘‘(i) Each allocation party, with the Ad21 ministrator voting for the identified but insol22 vent or defunct parties, shall numerically rank

23 the individuals on the final list of proposed

24 allocators, with a ranking of 1 indicating first

25 preference, and forward its vote to the Adminis-
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1 trator within 30 days of the issuance of the

2 final list of allocators pursuant to subsection

3 (c)(6)(B).

4 ‘‘(ii) The proposed allocator who receives

5 the lowest combined numerical score, taking

6 into account all votes submitted to the Adminis7 trator pursuant to clause (i), and who agrees to

8 serve as allocator, shall be determined to be the

9 allocator.

10 ‘‘(B) The Administrator may cast the votes of

11 identified but insolvent or defunct parties.

12 ‘‘(3) PEREMPTORY STRIKE.—The Adminis13 trator may reject any allocator selected by the allo14 cation parties if the proposed allocator is not on the

15 list provided under paragraph (6)(B) of subsection

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

17 parties shall select the allocator in order of numeri18 cal ranking in accordance with this subsection.

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

20 the allocation parties do not select an allocator pur21 suant to this subsection within 30 days after receipt

22 of the list provided under paragraph (2), the Admin23 istrator shall select the allocator, except that if the

24 Administrator rejects 4 or more allocators selected

25 by the allocation parties, the Administrator shall ini-
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1 tiate a new allocator selection process under this sec2 tion.

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

4 the Administrator shall enter into a contract with the se5 lected allocator for the provision of allocation services, and

6 immediately make available all responses to information

7 requests, as well as other relevant information concerning

8 the facility and potentially responsible parties, to the allo9 cator. The Administrator has the authority to use the pro10 cedures set forth in section 109(e) to obtain the services

11 of a neutral professional for use in conducting allocation

12 procedures under this section, whether or not the neutral

13 professional actually conducts such allocation procedures.

14 ‘‘(g) POTENTIALLY RESPONSIBLE PARTY SETTLE15 MENT.—At any time prior to the issuance of an allocation

16 report as described in subsection (h), any group of poten17 tially responsible parties may submit to the allocator a pri18 vate allocation for the remedial action. If such private allo19 cation meets all of the following criteria, the allocator shall

20 promptly adopt it as the allocation report:

21 ‘‘(1) The private allocation is a binding alloca22 tion of 100 percent of the past, present, and future

23 recoverable costs of the remedial action or operable

24 unit.
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1 ‘‘(2) The private allocation does not allocate

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

3 a signatory to the proposed private allocation or, in

4 the case of any orphan share, unless the United

5 States is a signatory to the proposed private alloca6 tion.

7 ‘‘(3) The signatories to the proposed private al8 location waive their contribution rights with respect

9 to the remedial action against all other potentially

10 responsible parties at the facility.

11 ‘‘(h) ALLOCATION DETERMINATION.—

12 ‘‘(1) SETTLEMENT AND ALLOCATION RE13 PORT.—Following issuance of the final list of alloca14 tion parties pursuant to subsection (c)(6)(A)(i), the

15 allocator shall initiate and conduct an allocation

16 process that shall culminate in the issuance of a

17 written report, with a nonbinding, equitable alloca18 tion of the percentage shares of responsibility of all

19 allocation parties, including the orphan share, for

20 the facility, and provide such report to the allocation

21 parties and the Administrator. The allocator shall

22 provide the report to the allocation parties and the

23 Administrator within 180 days of the issuance of the

24 list of allocation parties pursuant to subsection

25 (c)(6) or the date of the contract for allocation serv-
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1 ice pursuant to subsection (f), whichever is later.

2 Upon request, for good cause shown, the Adminis3 trator may grant the allocator additional time to

4 complete the allocation, not to exceed 90 days.

5 ‘‘(2) FACTORS IN THE ALLOCATION.—The allo6 cator shall prepare a nonbinding, equitable allocation

7 of percentage shares for the facility based on the fol8 lowing factors:

9 ‘‘(A) The amount of hazardous substances

10 contributed by each allocation party.

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

12 substances contributed by each allocation party.

13 ‘‘(C) The mobility of hazardous substances

14 contributed by each allocation party.

15 ‘‘(D) The degree of involvement of each al16 location party in the generation, transportation,

17 treatment, storage, or disposal of the hazardous

18 substance.

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

20 allocation party with respect to the hazardous

21 substance, taking into account the characteris22 tics of the hazardous substance.

23 ‘‘(F) The cooperation of each allocation

24 party in contributing to the response action and
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1 in providing complete and timely information

2 during the allocation process.

3 ‘‘(G) Such other factors that the Adminis4 trator determines are appropriate by published

5 guidance. Any such guidance shall be consistent

6 with this Act and shall be published only after

7 notice and opportunity for public comment. An

8 alleged failure of the allocator to consider 1 or

9 more additional factors set forth in such guid10 ance shall not be deemed unlawful conduct or

11 procedural error for purposes of subsection

12 (l)(2) or (3).

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

14 allocator shall conduct the allocation process and

15 render a decision based solely on the provisions of

16 this section, including the allocation factors specified

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

18 be afforded an opportunity to be heard (either orally

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

20 opportunity to comment on a draft allocation report.

21 The allocator shall not be required to respond to

22 comments.

23 ‘‘(4) IDENTIFICATION OF ORPHAN SHARES.—

24 ‘‘(A) COMPONENTS OF ORPHAN SHARE.—

25 The allocator may determine that a percentage
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1 share for the facility is specifically attributable

2 to an orphan share. The orphan share shall

3 consist only of the following:

4 ‘‘(i) Shares attributable to hazardous

5 substances that the allocator determines,

6 on the basis of information presented, to

7 be specifically attributable to identified but

8 insolvent or defunct allocation parties who

9 are not affiliated with any viable allocation

10 party.

11 ‘‘(ii) The difference between the ag12 gregate shares that the allocator deter13 mines, on the basis of the information pre14 sented, is specifically attributable to alloca15 tion parties that are contributors of munic16 ipal solid waste subject to the limitations

17 in section 107(a)(6), and the share actu18 ally assumed by those parties in any settle19 ments with the United States pursuant to

20 section 122(g), including the fair market

21 value of in-kind services provided by a mu22 nicipality.

23 ‘‘(iii) The difference between the ag24 gregate share that the allocator deter25 mines, on the basis of information pre-
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1 sented, to be specifically attributable to al2 location parties with a limited ability to

3 pay response costs and the share actually

4 assumed by those parties in any settle5 ments with the United States pursuant to

6 section 122(g).

7 ‘‘(B) UNATTRIBUTABLE SHARES.—Shares

8 attributable to hazardous substances that the

9 allocator cannot attribute to any identified

10 party shall be distributed among the allocation

11 parties, including the orphan share.

12 ‘‘(i) ANSWERS AND CERTIFICATIONS TO

13 ALLOCATOR’S INFORMATION REQUESTS.—

14 ‘‘(1) SUBPOENAS AND INFORMATION RE15 QUESTS.—Where necessary to assist in determining

16 the allocation of shares, the allocator may request

17 information or documents from any allocation party

18 in accordance with paragraphs (2) or (5) of section

19 104(e), and require by subpoena the attendance of

20 persons or the production of documents, or other in21 formation in accordance with section 104(e)(7). Any

22 allocation party to whom a request is directed shall

23 include in the response a certification by a respon24 sible representative or authorized representative that

25 satisfies the requirement of section 104(e)(3). The
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1 allocator may also request the Administrator to uti2 lize the authorities of paragraph (2) and to exercise

3 any information-gathering authority of the Adminis4 trator under this Act.

5 ‘‘(2) POWERS OF THE ALLOCATOR.—In addi6 tion to the information-gathering authority set forth

7 in paragraph (1), the allocator shall have the au8 thority to schedule meetings and require the attend9 ance of allocation parties at such meetings; to re10 quire that allocation parties wishing to present simi11 lar legal or factual positions consolidate their pres12 entations; to obtain or employ support services, in13 cluding secretarial and clerical services, computer

14 support services, and legal and investigative services;

15 and to take any other actions necessary to conduct

16 a fair, efficient, and impartial allocation process.

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

18 ‘‘(1) CIVIL PENALTIES.—Where the allocator is19 sues an administrative subpoena or information re20 quest pursuant to subsection (i), a party who unrea21 sonably fails to comply with the subpoena or request

22 shall be subject to a civil penalty not to exceed

23 $25,000 for each day of noncompliance.

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

25 enforcement of an administrative subpoena or infor-
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1 mation request pursuant to subsection (i)(1), and

2 shall seek such enforcement by requesting that the

3 Attorney General commence an action to enforce the

4 subpoena or request. The Attorney General, within

5 30 days after receiving such request from the allo6 cator, shall—

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

8 General will commence an action to enforce the

9 subpoena or information request;

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

11 General will not seek enforcement of the sub12 poena or request because the subpoena or re13 quest is barred by law or would result in annoy14 ance, embarrassment, oppression, or undue bur15 den or expense to the party to whom it was is16 sued; or

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

18 General has insufficient information on which

19 to determine whether an enforcement action is

20 appropriate.

21 ‘‘(3) FAILURE OF ATTORNEY GENERAL TO RE22 SPOND.—If the Attorney General fails to provide

23 any response to the allocator within 30 days of a re24 quest for enforcement of a subpoena or information

25 request, the allocator may retain counsel to com-
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1 mence a civil action to enforce the subpoena or in2 formation request.

3 ‘‘(4) PENALTY.—If the Attorney General or al4 locator prevails in an action to enforce an allocator’s

5 subpoena or information request, the party who

6 failed to comply shall be subject to a sanction that

7 may include civil penalties as provided in paragraph

8 (1). The court shall require such party to pay the

9 reasonable expenses, including attorney’s fees,

10 caused by the failure to comply, unless the court

11 finds that the failure was substantially justified or

12 that other circumstances make an award of expenses

13 unjust.

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

15 makes any false material statement or representa16 tion in the response to an allocator’s information re17 quest or subpoena issued pursuant to subsection (i)

18 shall be deemed to have made a false statement on

19 a matter within the jurisdiction of the United States

20 within the meaning of section 1001 of title 18, Unit21 ed States Code.

22 ‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIALITY.—

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

24 shall establish and maintain a document repository
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1 containing copies of all documents and informa2 tion—

3 ‘‘(A) provided by the Administrator pursu4 ant to this section,

5 ‘‘(B) provided or generated by the alloca6 tion parties, or

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

8 allocation.

9 The documents and information in the document re10 pository shall be available only to the parties to the

11 allocation process for review and copying at their

12 own expense, subject to the confidentiality provisions

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

14 the allocator all information obtained under section

15 104(e), including information entitled to protection

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

17 or exempt from disclosure pursuant to section

18 552(a) of title 5, United States Code. An allocation

19 party shall not assert any privilege as a basis for

20 withholding any information from the allocator.

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

22 materials submitted to the allocator or placed in the

23 document repository, together with the record of any

24 information generated or obtained during the alloca25 tion process, shall be confidential. The allocator,
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1 each allocation party, the Administrator, and the At2 torney General shall maintain such documents and

3 materials, together with the record of any informa4 tion generated or obtained during the allocation, as

5 confidential and are prohibited from using any such

6 material in any other matter or proceeding, and

7 shall not be subject to disclosure under section 552

8 of title 5, United States Code. Such material shall

9 not be discoverable or admissible in any other Fed10 eral, State, or local judicial or administrative pro11 ceedings, except—

12 ‘‘(A) a new allocation pursuant to sub13 section (m) or (n) for the same remedial action,

14 or

15 ‘‘(B) an initial allocation for a different re16 medial action at the same facility.

17 Nothing in this section shall be construed to author18 ize any person, including the allocator, to withhold

19 any documents or information from Congress, or any

20 duly authorized Committee thereof, or limit in any

21 manner the right of Congress, or any duly author22 ized Committee thereof, to obtain such documents or

23 information. Any person disclosing such documents

24 or information to Congress shall notify the person
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1 who produced such documents or information of the

2 fact of such disclosure pursuant to paragraph (5).

3 ‘‘(3) DISCOVERABILITY AND ADMISSIBILITY.—

4 Notwithstanding the foregoing, if the original of any

5 document or material submitted to the allocator or

6 placed in the document repository was, in the hands

7 of the party which provided it, otherwise discover8 able or admissible, then such original document, if

9 subsequently sought from such party, shall remain

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

13 sought from such other party, shall remain so.

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

16 allocation process shall not be deemed to be a waiver

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

19 discovery or evidence.

20 ‘‘(5) PROCEDURE WHEN DISCOVERY IS

21 SOUGHT.—Any person, including the United States

22 and any Federal, State, or local agency, department

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

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

2 and, except in the case of a request from the Con3 gress or a duly authorized committee thereof, shall

4 provide such submitting person the opportunity to

5 assert and defend the confidentiality of such item.

6 No person shall release or provide a copy of the item

7 to any person not a party to such allocation, other

8 than the Congress or a duly authorized committee

9 thereof, except as may be required by court order.

10 ‘‘(6) CIVIL PENALTY FOR VIOLATION OF CON11 FIDENTIALITY.—Any person who fails to maintain

12 the confidentiality of any statements, documents or

13 information generated or obtained during an alloca14 tion proceeding, or who releases any such informa15 tion in violation of this section shall be subject to

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

17 penalties may be sought in a civil action initiated by

18 the Attorney General on behalf of the United States,

19 or any allocation party adversely affected by the fail20 ure to maintain confidentiality.

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

22 Administrator and the Attorney General of the United

23 States may reject the allocator’s report if they jointly de24 termine that—
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1 ‘‘(1) no rational interpretation of the facts be2 fore the allocator, in light of the factors required to

3 be considered, would form a reasonable basis for the

4 shares assigned to the parties;

5 ‘‘(2) the allocation was affected by bias, fraud,

6 or unlawful conduct; or

7 ‘‘(3) the allocation was substantially and di8 rectly affected by procedural error.

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

10 States has accepted a settlement offer (excluding de

11 minimis or other expedited settlements under section

12 122(g)) based on the allocation. The Administrator and

13 the Attorney General shall make any such determination

14 within 180 days after the receipt of the first offer based

15 on the allocator’s report. The determinations of the Ad16 ministrator and the Attorney General under this sub17 section shall not be judicially reviewable. No such deter18 mination may be delegated to any officer or employee of

19 the Environmental Protection Agency or the Department

20 of Justice below the level of an Assistant Secretary or Act21 ing Assistant Secretary with authority for implementing

22 this Act at the Environmental Protection Agency or the

23 Department of Justice.

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

25 rejects an allocator’s report, the parties shall select a new
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1 allocator pursuant to subsection (e) to perform, on an ex2 pedited basis, a new allocation based on the same record

3 available to the first allocator. The moratorium on com4 mencement of litigation and tolling of statutes of limita5 tion set forth in subsection (b) shall be extended until 90

6 days after the issuance of the second allocation report. If

7 the United States rejects the second allocation the Presi8 dent may, following the expiration of the moratorium on

9 commencement of litigation, commence an action under

10 section 107.

11 ‘‘(n) NEW INFORMATION.—Any settling party, in12 cluding the United States, may seek a new allocation pur13 suant to subsection (h), where that party presents clear

14 and convincing information or the United States otherwise

15 determines on the basis of clear and convincing informa16 tion that—

17 ‘‘(1) the allocator did not have information con18 cerning 35 percent or more of the materials contain19 ing hazardous substances at the facility, and that

20 this information has been discovered subsequent to

21 the issuance of the allocator’s report; or

22 ‘‘(2) the allocator did not have information con23 cerning a person not subject to the allocation who

24 contributed 15 percent or more of materials contain25 ing hazardous substances at the facility, and that
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1 this information has been discovered subsequent to

2 the issuance of the allocator’s report.

3 Determinations by the United States pursuant to this sub4 section shall not be subject to judicial review.

5 ‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—

6 ‘‘(1) ACCEPTANCE OF OFFERS.—If, within 90

7 days after issuance of the allocator’s report for an

8 allocation conducted under subsection (a)(1), an al9 location party—

10 ‘‘(A) makes a written offer to settle with

11 respect to the response action based on the per12 centage share specified by the allocator and on

13 the additional terms and conditions of settle14 ment (other than the allocated percentage

15 share) that are acceptable to the President, and

16 ‘‘(B) is not in default on any information

17 requests under this Act,

18 then the President shall not seek a higher percent19 age share other than the premia authorized by this

20 section, unless the President has rejected the offer

21 on a basis other than the percentage share, or unless

22 the Administrator and the Attorney General have re23 jected the allocation report pursuant to subsection

24 (l).
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1 ‘‘(2) EXPLANATION OF REFUSAL TO SETTLE.—

2 If the Administrator and the Attorney General de3 termine not to settle on the basis of the allocation,

4 they shall provide the allocation parties and mem5 bers of the affected community with a written expla6 nation of the Administrator’s determination.

7 ‘‘(3) SETTLEMENT PROVISIONS.—Settlements

8 based on allocated shares shall include each of the

9 following:

10 ‘‘(A) A waiver of contribution rights

11 against all parties who are potentially respon12 sible parties for the response action, as well as

13 a waiver of any rights to challenge any settle14 ment the President enters into with any other

15 potentially responsible party.

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

17 section 122(f), and provisions regarding per18 formance or adequate assurance of performance

19 of response actions addressed in the settlement.

20 ‘‘(C) A premium determined on a site spe21 cific basis and subject to the limitations set

22 forth in paragraph (4), that compensates for

23 the United States litigation risk with respect to

24 potentially responsible parties who have not re25 solved their liability to the United States, ex-
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1 cept that no such premium shall apply if all

2 parties settle or the settlement covers 100 per3 cent of response costs.

4 ‘‘(D) Contribution protection, consistent

5 with section 113(f), regarding matters ad6 dressed in the settlement. Such settlement does

7 not discharge any of the other potentially re8 sponsible parties unless its terms so provide,

9 but it reduces the potential liability of the oth10 ers by the amount of the settlement.

11 ‘‘(E) Provisions through which the settling

12 parties shall receive reimbursement from the

13 Fund for any response costs incurred by such

14 parties in excess of the aggregate of their allo15 cated share and any premia required by the set16 tlement. Such right to reimbursement shall not

17 be contingent on the United States recovery of

18 response costs from any responsible person not

19 a party to any settlement with the United

20 States.

21 ‘‘(4) The premium authorized by paragraph

22 (3)(C) for litigation risk shall not exceed the follow23 ing:

24 ‘‘(A) Five percent of the total costs as25 sumed by a settling party, where settlements
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1 (and any orphan share identified by the allo2 cator) account for 80 percent or more of re3 sponsibility at the facility.

4 ‘‘(B) Ten percent of the total costs as5 sumed by a settling party, where settlements

6 (and any orphan share identified by the allo7 cator) account for more than 60 percent and

8 less than 80 percent of responsibility at the fa9 cility.

10 ‘‘(C) Fifteen percent of the total costs as11 sumed by a settling party, where settlements

12 (and any orphan share identified by the allo13 cator) account for more than 40 percent and

14 less than 60 percent of responsibility at the fa15 cility.

16 ‘‘(D) Twenty 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 40 percent or less of respon20 sibility at the facility.

21 The Administrator shall have authority to promul22 gate regulations to modify the premia percentages

23 established in this subsection. The Administrator

24 may not propose a rule before the date 36 months

25 after the enactment of this section, and no such rule
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1 may take effect before the date 48 months after the

2 enactment of this section. Such rule must be based

3 upon an administrative record establishing that such

4 modification is necessary to reflect actual experience

5 regarding the litigation risk faced by the United

6 States in proceeding against nonsettling parties

7 under this section.

8 ‘‘(5) AUTHORIZATION OF REIMBURSEMENT.—

9 In any settlement in which a party agrees to per10 form response work in excess of its share, the Ad11 ministrator shall have authority to carry out his

12 duty to reimburse settling parties under this section

13 pursuant to such reasonable procedures as the Ad14 ministrator may prescribe.

15 ‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis16 trator shall require all claims for reimbursement to

17 be supported by—

18 ‘‘(A) documentation of actual costs in19 curred; and

20 ‘‘(B) sufficient information to enable the

21 Administrator to determine whether such costs

22 were reasonable.

23 The Administrator may require independent auditing of

24 any claim for reimbursement.

25 ‘‘(p) POST-ALLOCATION LITIGATION.—
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1 ‘‘(1) IN GENERAL.—The United States may

2 commence an action under section 107 against any

3 person liable under that section who has not resolved

4 its liability to the United States following allocation,

5 on or after 90 days following issuance of the

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

7 shall be liable in accordance with section 107 for all

8 response costs not recovered through settlements

9 with other persons. Such recoverable costs shall in10 clude any federally funded orphan share identified in

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

12 any shares allocated to Federal, State, or local gov13 ernmental agencies, departments, or instrumental14 ities. Defendants in any such action may implead

15 only allocation parties who did not resolve their li16 ability to the United States. The Administrator and

17 the Attorney General shall issue guidelines to ensure

18 that the relief sought against de minimis parties

19 under principles of joint and several liability will not

20 be grossly disproportionate to their contribution to

21 the facility. The application of such guidelines is

22 committed to the discretion of the Administrator

23 and the Attorney General.

24 ‘‘(2) CERTIFICATION.—In commencing any ac25 tion under section 107 following allocation, the At-
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1 torney General must certify, in the complaint, that

2 the United States has been unable to reach a settle3 ment that would be in the best interests of the Unit4 ed States. This certification shall not be subject to

5 judicial review.

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

7 an action under section 107 or otherwise seek con8 tribution against any person who was not identified

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

10 subsequently identified as a potentially liable party

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

12 ‘‘(4) ADMISSIBILITY OF ALLOCATOR’S RE13 PORT.—The allocator’s report shall not be admissi14 ble in any court for any purpose, except as set forth

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

16 rules and discretion of the court, may be admissible

17 solely for the purpose of assisting the court in mak18 ing an equitable allocation of response costs among

19 the relative shares of nonsettling liable parties.

20 ‘‘(5) COSTS OF ALLOCATION PROCEDURE ON

21 ORPHAN SHARE.—

22 ‘‘(A) INCLUDED AS COSTS OF RE23 SPONSE.—The costs of implementing the alloca24 tion procedure set forth in this section, includ25 ing reasonable fees and expenses of the allo-
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1 cator, shall be considered necessary costs of re2 sponse for purposes of this Act.

3 ‘‘(B) ORPHAN SHARE.—The costs attrib4 utable to any funding of orphan shares identi5 fied by the allocator pursuant to subsection

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

7 of response for purposes of this Act, and shall

8 be recoverable from liable parties who do not

9 resolve their liability on the basis of the alloca10 tion.

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

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

13 if the United States has rejected an offer of settle14 ment that is consistent with subsection (o) and that

15 was presented to the United States prior to the expi16 ration of the moratorium period set forth in sub17 section (b), the offeror shall be entitled to recover

18 from the United States the offeror’s reasonable costs

19 of defending the action after the making of the offer

20 (including reasonable attorneys’ fees) if the ultimate

21 resolution of liability or allocation of costs with re22 spect to the offeror (taking into account all settle23 ments and reimbursements with respect to the facil24 ity other than those attributable to insurance or in-
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1 demnification), is as, or more, favorable to the

2 offeror than the offer based on the allocation.

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

4 ‘‘(1) REIMBURSEMENT.—Parties who satisfac5 torily perform work under an administrative order

6 issued under section 106(a) with respect to a reme7 dial action for which an allocation is required by

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

9 for the reasonable and necessary costs of work they

10 perform in excess of the share assigned to them in

11 the allocation in accordance with the provisions of

12 this section, provided that the allocation report is

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

14 end of the moratorium following the allocation, the

15 performing party, in consideration of such reim16 bursement—

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

18 response costs not inconsistent with the Na19 tional Contingency Plan to the extent of the al20 located share;

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

22 ‘‘(C) agrees that its reimbursement shall

23 be reduced by an amount equal to the maxi24 mum litigation risk premium provided for in

25 subsection (o)(4) based on the total allocated
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1 shares of the allocation parties who have not

2 reached settlements with the United States by

3 the end of the moratorium on commencement

4 of actions provided in subsection (b);

5 ‘‘(D) waives contribution rights against all

6 parties who are potentially responsible parties

7 for the response action, as well as waives any

8 rights to challenge any settlement the President

9 enters into with any other potentially respon10 sible party.

11 ‘‘(2) OFFSET.—Any and all reimbursement pro12 vided to a performing party for work in excess of its

13 share is subject to equitable offset or reduction by

14 the Administrator upon a finding of a failure to per15 form any aspect of the remedy in a proper and time16 ly manner.

17 ‘‘(3) TIME OF PAYMENT.—Any and all reim18 bursement to a performing party for work in excess

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

20 but no sooner than completion of the construction of

21 the remedial action.

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

23 amount of orphan share funding available to the

24 performing party shall be further limited as follows:
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1 ‘‘(A) Performing parties who fully waive

2 their right to challenge remedy selection at the

3 end of the moratorium following allocation shall

4 be entitled to full reimbursement of costs in ex5 cess of the party’s share and attributable by the

6 allocator to the orphan share paid in nominal

7 dollars after the work is completed, but no

8 sooner than completion of the construction of

9 the remedial action.

10 ‘‘(B) Performing parties who retain their

11 right to challenge the remedy shall be reim12 bursed for 90 percent of orphan share funding,

13 paid in nominal dollars after the work is com14 pleted, but no sooner than completion of the

15 construction of the remedial action, unless the

16 orphan share is less than 20 percent of respon17 sibility at the site, in which case such parties

18 shall be reimbursed only 80 percent of the or19 phan share.

20 For purposes of this subsection ‘nominal dollars’

21 means actual dollars spent by the performing party,

22 without increase for interest or inflation.

23 ‘‘(5) NONORPHAN SHARE REIMBURSEMENT.—

24 Reimbursement for work in excess of the performing

25 party’s allocated share but that is not attributable to
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1 the orphan share shall be paid in nominal dollars

2 after work is completed, but no sooner than comple3 tion of the construction of the remedial action, pro4 vided that the performing party is entitled to all in5 terest (prejudgment and post judgment, whether re6 covered from a party or earned in a site account)

7 that has accrued on money recovered by the United

8 States from other parties for such work at the time

9 construction of the remedy is completed.

10 ‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis11 trator shall require that all claims for reimburse12 ment be supported by—

13 ‘‘(A) documentation of actual costs in14 curred; and

15 ‘‘(B) sufficient information to enable the

16 Administrator to determine whether such costs

17 were reasonable.

18 The Administrator may require independent auditing

19 of any claim for reimbursement.

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

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

22 further appropriation action, the President shall make re23 imbursements from the Fund, to eligible parties for costs

24 incurred and equitably attributable to orphan shares de25 termined pursuant to this section, provided that Fund fi-
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1 nancing of orphan shares shall not exceed $300,000,000

2 in any fiscal year. Reimbursements made under this sub3 section shall be subject to such terms and conditions as

4 the President may prescribe.

5 ‘‘(s) PROCEDURES.—The Administrator, after con6 sultation with the Attorney General, may promulgate rules

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

8 practices but shall not have additional authority, except

9 as specifically set forth in this section, to promulgate rules

10 or publish guidance to restrict the allocator’s discretion

11 in the conduct of the allocation.

12 ‘‘(t) ROLE OF FEDERAL AGENCIES.—Federal depart13 ments, agencies, or instrumentalities that are identified as

14 potentially responsible parties shall be subject to, and be

15 entitled to the benefits of, the allocation process provided

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

17 ‘‘(u) REPRESENTATION OF THE UNITED STATES

18 AND AFFECTED STATES.—The Administrator and the At19 torney General, and a representative of any State that

20 may be responsible for a portion of the orphan share, shall

21 be entitled to review all documents and participate in any

22 phase of the allocation proceeding.

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

24 annually to Congress on the administration of the alloca25 tion scheme under this section, and provide information
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1 comparing allocation results with actual settlements at

2 multiparty facilities.

3 ‘‘(w) SAVINGS PROVISIONS.—(1) Nothing in this sec4 tion shall in any way limit or affect the President’s author5 ity to exercise the powers conferred by section 103, 104,

6 105, 106, or 122 of this title, or to commence an action

7 against a party where there is a contemporaneous filing

8 of a judicial consent decree resolving that party’s liability;

9 or to file a proof of claim or take other action in a proceed10 ing under title 11 of the United States Code.

11 ‘‘(2) The procedures established in this section shall

12 not be construed to modify or affect in any way the prin13 ciples of retroactive, strict, joint and several liability under

14 this title.

15 ‘‘(3) Nothing in this section shall limit or affect—

16 ‘‘(A) the Administrator’s obligation to perform

17 an allocation for facilities that have been the subject

18 of partial or expedited settlements;

19 ‘‘(B) the ability of a potentially responsible

20 party at a facility to resolve its liability to the Unit21 ed States or other parties at any time before initi22 ation or completion of the allocation process;

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

24 merits of any judicial or administrative order, judg25 ment, or decree that is issued, signed, lodged, or en-
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1 tered with respect to liability under this Act or that

2 authorizes modification of any such order, judgment

3 or decree; or

4 ‘‘(D) the validity, enforceability, finality or mer5 its of any preexisting contract or agreement relating

6 to any allocation of responsibility or any sharing of

7 response costs under this Act.’’.

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