I

104TH CONGRESS

1ST SESSION H. R. 2256

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to make comprehensive improvements in provisions

relating to liability and funding.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 4, 1995

Mr. ZELIFF introduced the following bill; which was referred to the Committee

on Commerce, and in addition to the Committees on Transportation and

Infrastructure, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions

as fall within the jurisdiction of the committee concerned

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to make comprehensive improvements in provisions relating to liability and

funding.

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

3 SECTION 1. SHORT TITLE.

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

5 Equity and Acceleration Act’’.

6 SEC. 2. TABLE OF CONTENTS.

7 The table of contents for this Act is as follows:
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Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—LIABILITY

Sec. 101. Release of evidence.

Sec. 102. Elimination of retroactive liability.

Sec. 103. Limitation on liability of certain owners and operators.

Sec. 104. Contribution protection.

Sec. 105. Contiguous properties.

Sec. 106. Lender and fiduciary liability.

Sec. 107. Definitions.

Sec. 108. Assignment of shares of liability for costs of response actions at national priority list sites.

Sec. 109. Enforcement of response actions through joint and several liability.

Sec. 110. Establishment of binding allocation of responsibility process.

Sec. 111. Site redevelopment.

Sec. 112. Liability of response action contractors.

TITLE II—FUNDING

Sec. 201. Hazardous Substance Revolving Fund.

1 TITLE I—LIABILITY

2 SEC. 101. RELEASE OF EVIDENCE.

3 (a) TIMELY ACCESS TO INFORMATION FURNISHED

4 UNDER SECTION 104(e).—Section 104(e)(7)(A) of the

5 Comprehensive Environmental Response, Compensation,

6 and Liability Act of 1980 (42 U.S.C. 9604(e)(7)(A)) is

7 amended by inserting after ‘‘shall be available to the pub8 lic’’ the following: ‘‘not later than 14 days after the

9 records, reports, or information is obtained’’.

10 (b) REQUIREMENT TO PROVIDE PRPS EVIDENCE OF

11 LIABILITY.—(1) Subsection (a) of section 106 of the Com12 prehensive Environmental Response, Compensation, and

13 Liability Act of 1980 (42 U.S.C. 9607(a)) is amended by

14 adding at the end the following: ‘‘In any case in which

15 the President issues an order to a person under this sub-
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1 section, the President shall provide information concerning

2 the evidence that indicates that each element of liability

3 contained in subparagraph (A), (B), (C), or (D) of section

4 107(a)(1) is present.’’.

5 (2) Section 122(e)(1) of such Act is amended by in6 serting after subparagraph (C) the following:

7 ‘‘(D) For each potentially responsible

8 party, the evidence that indicates that each ele9 ment of liability contained in subparagraph (A),

10 (B), (C), or (D) of section 107(a)(1) is

11 present.’’.

12 SEC. 102. ELIMINATION OF RETROACTIVE LIABILITY.

13 Section 107 of the Comprehensive Environmental Re14 sponse, Compensation, and Liability Act of 1980 (42

15 U.S.C. 9607(a)) is amended by adding at the end the fol16 lowing new subsection:

17 ‘‘(n) RETROACTIVE LIABILITY CUT-OFF DATE; COST

18 REIMBURSEMENT PROVISIONS.—

19 ‘‘(1) RETROACTIVE LIABILITY CUT-OFF

20 DATE.—Subject to the provisions in this subsection,

21 a person is liable under this section only for actions

22 occurring after December 31, 1986.

23 ‘‘(2) EXCEPTION FOR ILLEGAL ACTIONS.—

24 Paragraph (1) does not apply to actions occurring

25 on or before December 31, 1986, which were con-
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1 trary to law at the time of the actions. For purposes

2 of this paragraph, actions shall be considered to be

3 contrary to law at the time of the actions if the ac4 tions are determined by a court before, on, or after

5 the date of the enactment of this subsection to have

6 been illegal at the time the actions occurred.

7 ‘‘(3) REIMBURSEMENT.—Reimbursement or

8 payment for costs incurred under this Act for ac9 tions for which a person is not liable under this sec10 tion by reason of paragraph (1) shall be made from

11 the Hazardous Substance Revolving Fund in accord12 ance with paragraphs (4) and (5).

13 ‘‘(4) PRE-1987 SITES.—For a site or facility

14 with respect to which all actions occurred before

15 January 1, 1987, the following reimbursement rules

16 apply:

17 ‘‘(A) NO REIMBURSEMENT FOR COSTS IN18 CURRED BEFORE DATE OF ENACTMENT OF

19 SUBSECTION FOR CERTAIN SITES.—In the case

20 of such a site or facility that was discovered be21 fore June 1, 1995, no reimbursement may be

22 made from the Hazardous Substance Revolving

23 Fund to the potentially responsible parties con24 cerned for costs incurred before the date of the

25 enactment of this subsection for construction or
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1 operation and maintenance of a response action

2 at such a site or facility.

3 ‘‘(B) REIMBURSEMENT FOR CERTAIN

4 COSTS.—The President shall use amounts from

5 the Hazardous Substance Revolving Fund to

6 pay—

7 ‘‘(i) in the case of such a site or facil8 ity where construction was completed by

9 June 1, 1995, any costs of operation and

10 maintenance incurred on or after the date

11 of the enactment of this subsection;

12 ‘‘(ii) in the case of such a site or facil13 ity where construction was not completed

14 by June 1, 1995, any costs of construction

15 or operation and maintenance incurred on

16 or after such date of enactment; and

17 ‘‘(iii) in the case of such a site or fa18 cility that is discovered after June 1, 1995,

19 all costs of the response action (including

20 construction and operation and mainte21 nance) incurred on or after the date of the

22 enactment of this subsection, except that

23 such costs shall not include attorneys’ fees

24 or other costs associated with litigation re25 lated to the response action.
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1 ‘‘(5) STRADDLE SITES.—For a site or facility

2 with respect to which actions occurred both before

3 and after January 1, 1987 (hereinafter in this sub4 section referred to as a ‘straddle site or facility’), the

5 following reimbursement rules apply:

6 ‘‘(A) NO REIMBURSEMENT FOR COSTS IN7 CURRED BEFORE DATE OF ENACTMENT OF

8 SUBSECTION FOR CERTAIN SITES.—In the case

9 of a straddle site or facility that was discovered

10 before June 1, 1995, no reimbursement may be

11 made from the Hazardous Substance Revolving

12 Fund to the potentially responsible parties con13 cerned for costs incurred before the date of the

14 enactment of this subsection for construction or

15 operation and maintenance of a response action

16 at the site or facility.

17 ‘‘(B) REIMBURSEMENT FOR CERTAIN

18 COSTS.—The President shall use amounts from

19 the Hazardous Substance Revolving Fund to

20 pay—

21 ‘‘(i) in the case of a straddle site or

22 facility where construction was completed

23 by June 1, 1995, any costs of operation

24 and maintenance incurred on or after the

25 date of the enactment of this subsection
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1 that are attributable to pre-1987 actions

2 (as determined pursuant to an allocation

3 for which a petition is granted under para4 graph (6) of this subsection);

5 ‘‘(ii) in the case of a straddle site or

6 facility where construction was not com7 pleted by June 1, 1995, any costs of con8 struction or operation and maintenance in9 curred on or after such date of enactment

10 that are attributable to pre-1987 actions

11 (as determined pursuant to an allocation

12 for which a petition is granted under para13 graph (6) of this subsection); and

14 ‘‘(iii) in the case of a straddle site or

15 facility that is discovered on or after June

16 1, 1995, all costs of the response action

17 (including construction and operation and

18 maintenance) incurred on or after the date

19 of the enactment of this subsection that

20 are attributable to pre-1987 actions (as de21 termined pursuant to an allocation in ac22 cordance with title V), except that such

23 costs shall not include attorneys’ fees or

24 other costs associated with litigation relat25 ed to the response action.
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1 ‘‘(6) PETITION FOR ALLOCATION.—A poten2 tially responsible party of a straddle site or facility

3 that was discovered before June 1, 1995, may peti4 tion the President for an allocation in accordance

5 with title V of the construction and operation and

6 maintenance costs attributable to pre-1987 actions.

7 In the case of a straddle site or facility where con8 struction was completed by June 1, 1995, any such

9 petition must be made not later than 90 days after

10 the date of the enactment of this subsection. In the

11 case of a straddle site or facility where construction

12 was not completed by June 1, 1995, any such peti13 tion must be made not later than 90 days after the

14 date on which the construction is completed. The

15 President shall grant any petition for an allocation

16 of pre-1987 costs incurred at a straddle site or facil17 ity upon determining that the site or facility is in

18 fact a straddle site or facility.

19 ‘‘(7) EFFECT ON CONCLUDED ACTIONS.—This

20 subsection shall not affect any judicial or adminis21 trative action from which all direct appeals have

22 been made and finally acted upon, or with respect to

23 which the time for filing such appeals has passed

24 and no appeals have been filed, as of the date of the

25 enactment of this subsection.
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1 ‘‘(8) DEFINITIONS.—In this subsection:

2 ‘‘(A) The term ‘action’ means any action

3 for which a person is liable under paragraph

4 (1), (2), (3), or (4) of subsection (a).

5 ‘‘(B) The term ‘person’ has the meaning

6 provided in section 101(21) but does not in7 clude the United States Government.’’.

8 SEC. 103. LIMITATION ON LIABILITY OF CERTAIN OWNERS

9 AND OPERATORS.

10 (a) EXEMPTION FOR GRANTEES OF CERTAIN EASE11 MENTS.—Subsection (a) of section 107 of the Comprehen12 sive Environmental Response, Compensation, and Liabil13 ity Act of 1980 (42 U.S.C. 9607(a)) is amended—

14 (1) in paragraph (4), by striking out ‘‘shall be

15 liable for—’’ and inserting in lieu thereof ‘‘shall be

16 liable, except as provided in paragraph (5), for—’’;

17 and

18 (2) by adding at the end the following new

19 paragraph:

20 ‘‘(5) In the case of a person who is a qualified organi21 zation under section 170(h)(3) of the Internal Revenue

22 Code of 1986 and who is the grantee of a conservation

23 easement with respect to real property on which a facility

24 is located, the person shall not be considered an owner

25 or operator of the facility under paragraph (1) or (2) un-
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1 less the person, by any act or omission, causes or contrib2 utes to the release or threatened release of a hazardous

3 substance that causes the incurrence of response costs.

4 For purposes of this paragraph, the term ‘‘conservation

5 easement’’ means a restriction on the use of land for pur6 poses of protecting in perpetuity a conservation purpose

7 listed in section 170(h)(4) of the Internal Revenue Code

8 of 1986.’’.

9 (b) SAFE HARBOR FOR INNOCENT LANDOWNER DE10 FENSE.—(1) Section 101(35) of the Comprehensive Envi11 ronmental Response, Compensation and Liability Act of

12 1980 (42 U.S.C. 9601 et seq.) is amended by redesignat13 ing subparagraphs (C) and (D) as subparagraphs (D) and

14 (E), respectively and inserting after subparagraph (B),

15 the following:

16 ‘‘(C)(i) A defendant who has acquired real

17 property shall have established a rebuttable pre18 sumption that he has made all appropriate inquiry

19 within the meaning of subparagraph (B) if he estab20 lishes that, immediately prior to or at the time of ac21 quisition, he obtained an environmental assessment

22 of the real property which meets the requirements of

23 this subparagraph.

24 ‘‘(ii) For purposes of this subparagraph, the

25 term ‘environmental professional’ means an individ-
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1 ual, or an entity managed or controlled by such indi2 vidual who, through academic training, occupational

3 experience and reputation (such as engineers, envi4 ronmental consultants and attorneys), can objec5 tively conduct one or more aspects of an environ6 mental assessment. For purposes of this subpara7 graph, the term ‘environmental assessment’ means

8 an investigation of the real property, conducted by

9 environmental professionals, to determine or discover

10 the likelihood of the presence or substantial reason

11 to suspect the presence of a release or threatened re12 lease of hazardous substances on the real property

13 and which consists of a review of each of the follow14 ing sources of information concerning the previous

15 ownership and uses of the real property:

16 ‘‘(I) Recorded chain of title documents re17 garding the real property, including all deeds,

18 easements, leases, restrictions, and covenants

19 for a period of 50 years.

20 ‘‘(II) Aerial photographs which may reflect

21 prior uses of the real property and which are

22 reasonably accessible through State or local

23 government agencies.

24 ‘‘(III) Determination of the existence of re25 corded environmental cleanup liens against the
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1 real property which have arisen pursuant to

2 Federal, State, and local statutes.

3 ‘‘(IV) Reasonably obtainable Federal,

4 State, and local government records of sites or

5 facilities where there has been a release of haz6 ardous substances and which are likely to cause

7 or contribute to a release or threatened release

8 of hazardous substances on the real property,

9 including investigation reports for such sites or

10 facilities; reasonably obtainable Federal, State,

11 and local government environmental records of

12 activities likely to cause or contribute to a re13 lease or a threatened release of hazardous sub14 stances on the real property, including landfill

15 and other disposal location records, under16 ground storage tank records, hazardous waste

17 handler and generator records and spill report18 ing records; and such other reasonably obtain19 able Federal, State, and local government envi20 ronmental records which report incidents or ac21 tivities which are likely to cause or contribute

22 to a release or threatened release of hazardous

23 substances on the real property. A record is

24 considered to be reasonably obtainable for pur25 poses of this subclause if a copy or reasonable
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1 facsimile of the record is obtainable from the

2 government agency by request.

3 ‘‘(V) A visual site inspection of the real

4 property and all facilities and improvements on

5 the real property, and a visual inspection of im6 mediately adjacent properties from the real

7 property, including an investigation of any

8 chemical use, storage, treatment and disposal

9 practices on the property.

10 ‘‘(iii) No presumption shall arise under clause

11 (i) unless the defendant has maintained a compila12 tion of the information reviewed in the course of the

13 environmental assessment.

14 ‘‘(iv) Notwithstanding any other provision of

15 this paragraph, if the environmental assessment dis16 closes the presence or likely presence of a release or

17 threatened release of hazardous substances on the

18 real property to be acquired, no presumption shall

19 arise under clause (i) with respect to such release or

20 threatened release unless the defendant has taken

21 reasonable steps, in accordance with current tech22 nology available, existing regulations, and generally

23 acceptable engineering practices, as may be nec24 essary to confirm the absence of such release or

25 threatened release.’’.
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1 (2) Subparagraph (C) of section 101(35) of the Com2 prehensive Environmental Response, Compensation, and

3 Liability Act of 1980, as added by paragraph (1), shall

4 take effect on the date of the enactment of this Act.

5 SEC. 104. CONTRIBUTION PROTECTION.

6 Section 113(f)(2) of the Comprehensive Environ7 mental Response, Compensation, and Liability Act of

8 1980 (42 U.S.C. 9613(f)(2)) is amended in the first sen9 tence by inserting ‘‘or cost recovery’’ after ‘‘contribution’’.

10 SEC. 105. CONTIGUOUS PROPERTIES.

11 Section 107(a) of the Comprehensive Environmental

12 Response, Compensation, and Liability Act of 1980 (42

13 U.S.C. 9607(a)), as amended by section 103(a), is further

14 amended by adding at the end the following new para15 graph:

16 ‘‘(6) A person who owns or operates real prop17 erty that is contiguous to or otherwise situated with

18 respect to real property on which there has been a

19 release of a hazardous substance and that is or may

20 be contaminated by such release shall not be consid21 ered an owner or operator of a facility under para22 graph (1) solely by reason of such contamination.

23 The President may issue assurances of no enforce24 ment action under this Act to any such person and

25 may grant any such person protection against cost
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1 recovery and contribution actions pursuant to sec2 tion 113(f)(2).’’.

3 SEC. 106. LENDER AND FIDUCIARY LIABILITY.

4 (a) RULEMAKING AUTHORITY FOR SECURITY INTER5 EST EXEMPTION.—Section 115 of the Comprehensive En6 vironmental Response, Compensation, and Liability Act of

7 1980 (15 U.S.C. 9615) is amended—

8 (1) by redesignating the text of the section as

9 subsection (a); and

10 (2) by adding at the end the following:

11 ‘‘(b)(1) Pursuant to the authority conferred by this

12 section, the President shall issue, within 30 days after the

13 date of enactment of the Superfund Liability Equity and

14 Acceleration Act, regulations to define the terms of this

15 Act as they apply to lenders and other financial services

16 providers. These regulations shall clarify the definition of

17 the term ‘owner or operator’ contained in section

18 101(20)(A) by—

19 ‘‘(A) defining the terms ‘indicia of ownership’,

20 ‘security interest’, ‘primarily to protect a security in21 terest’, and ‘participation in management’; and

22 ‘‘(B) specifying the types of activities that may

23 be undertaken without voiding the exemption to li24 ability provided by section 101(20)(A).
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1 ‘‘(2) The following clarifications shall be included

2 among the provisions in the regulations issued under para3 graph (1):

4 ‘‘(A) The term ‘participation in management’

5 does not include—

6 ‘‘(i) the mere capacity to influence, or abil7 ity to influence, or the unexercised right to con8 trol facility operations; or

9 ‘‘(ii) any act of the security interest holder

10 to require another person or itself, to comply

11 with applicable laws or to respond lawfully to

12 disposal of any hazardous substance.

13 ‘‘(B) A security interest holder will not be

14 deemed to be participating in management of a facil15 ity unless the security interest holder—

16 ‘‘(i) has undertaken responsibility for the

17 facility’s hazardous substance handling or dis18 posal practices; or

19 ‘‘(ii) has undertaken overall management

20 of the facility encompassing day-to-day deci21 sionmaking over either environmental compli22 ance or over the operational, as opposed to fi23 nancial and administrative, aspects of the facil24 ity.
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1 ‘‘(C) Legal or equitable title acquired by a secu2 rity interest holder through foreclosure or its equiva3 lents will be deemed to be held primarily to protect

4 a security interest provided that the holder under5 takes to sell, re-lease, or otherwise divest the prop6 erty in a reasonably expeditious manner on commer7 cially reasonable terms.’’.

8 (b) PROTECTION FOR FIDUCIARIES FROM INDIVID9 UAL LIABILITY.—(1) Section 101(20) of the Comprehen10 sive Environmental Response, Compensation, and Liabil11 ity Act of 1980 (42 U.S.C. 9601(20)) is amended by add12 ing at the end the following new subparagraph:

13 ‘‘(E)(i) The term ‘owner or operator’ does not

14 include a fiduciary who holds legal title to, is the

15 mortgagee or secured party with respect to, controls,

16 or manages, directly or indirectly, any facility or ves17 sel for purposes of administering an estate or trust

18 of which such facility or vessel is a part.

19 ‘‘(ii) For purposes of clause (i), the term ‘fidu20 ciary’ means a person who is acting in any of the

21 following representative capacities, but only to the

22 extent such person is acting in such representative

23 capacity:
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1 ‘‘(I) An executor or administrator of an es2 tate, including a voluntary executor or a vol3 untary administrator.

4 ‘‘(II) A guardian.

5 ‘‘(III) A conservator.

6 ‘‘(IV) A trustee under a will under which

7 the trustee takes title to, or otherwise controls

8 or manages, property for the purpose of pro9 tecting or conserving such property under the

10 ordinary rules applied in State courts.

11 ‘‘(V) A court-appointed receiver.

12 ‘‘(VI) A trustee appointed in proceedings

13 under Federal bankruptcy laws.

14 ‘‘(VII) An assignee or a trustee acting

15 under an assignment made for the benefit of

16 creditors.

17 ‘‘(VIII) A trustee, or any successor there18 to, pursuant to an indenture agreement, trust

19 agreement, lease, or similar financing agree20 ment, for debt securities, certificates of interest

21 of participation in any such debt securities, or

22 other forms of indebtedness as to which it is

23 not, in its capacity as trustee, the lender.’’.

24 (2) Section 107 of the Comprehensive Environmental

25 Response, Compensation, and Liability Act of 1980 (42
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1 U.S.C. 9607), as amended by section 102, is further

2 amended by adding at the end the following new sub3 section:

4 ‘‘(o) FIDUCIARY LIABILITY.—(1) Except as provided

5 in paragraph (3), a fiduciary (as defined in section

6 101(20)) shall not be liable in its individual capacity under

7 this section.

8 ‘‘(2) Nothing in this paragraph may be construed as

9 preventing claims under this Act against—

10 ‘‘(A) the assets of the estate or trust adminis11 tered by a fiduciary; or

12 ‘‘(B) non-employee agents or independent con13 tractors retained by a fiduciary.

14 ‘‘(3) Nothing in this paragraph may be construed as

15 preventing claims under this Act against a fiduciary in its

16 individual capacity whose negligent acts or intentional

17 misconduct caused a release or threatened release of haz18 ardous substances at a facility or vessel. A fiduciary shall

19 not be attributed with the negligence or intentional mis20 conduct of non-employee agents or independent contrac21 tors if the fiduciary has conducted itself without neg22 ligence or intentional misconduct with regard to its rela23 tionship with such agents or contractors.’’.
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1 SEC. 107. DEFINITIONS.

2 Section 101 of the Comprehensive Environmental Re3 sponse, Compensation, and Liability Act of 1980 (42

4 U.S.C. 9601), is amended by adding at the end the

5 following:

6 ‘‘(39) The term ‘potentially responsible party’

7 means any person identified as potentially liable

8 under section 107, potentially responsible to perform

9 any response action under sections 104 or 106, or

10 potentially liable for contribution under section 113.

11 ‘‘(40) The term ‘de micromis party’ means a

12 potentially responsible party who is a generator or

13 transporter who contributed less than one hundred

14 pounds or one hundred liters of material containing

15 hazardous substances at a facility, or such greater

16 or lesser amount as the Administrator may deter17 mine by regulation.

18 ‘‘(41) The term ‘de minimis party’ means a lia19 ble party whose assigned share of liability is deter20 mined to be 1.0 percent or less in a final binding al21 location of responsibility decision under title V.

22 ‘‘(42) The term ‘liable party’ means any poten23 tially responsible party determined by an allocation

24 panel or a court to be liable under section 107, re25 sponsible to perform any action under sections 104

26 or 106, or liable for contribution under section 113.
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1 ‘‘(43) The term ‘assigned share’ means the per2 centage of liability assigned, in accordance with the

3 factors set forth in section 503(g)(2), to a liable

4 party by an allocation panel in a binding allocation

5 of responsibility or by a court of law.

6 ‘‘(44) The term ‘orphan party’ means a liable

7 party at a site who is defunct, unknown, insolvent,

8 or whose assigned share has been subject to dis9 charge or limitation in bankruptcy, or who is other10 wise financially unable to pay all or part of its as11 signed share.

12 ‘‘(45) The term ‘creditor party’ means the Ad13 ministrator, a State, or any person who is deter14 mined to be a liable party with respect to a National

15 Priority List site and who incurs or has incurred

16 costs with respect to the site that are not inconsist17 ent with the National Contingency Plan.

18 ‘‘(46) The term ‘debtor party’ means the Haz19 ardous Substance Revolving Fund and any person

20 who is determined to be a liable party with respect

21 to a National Priority List site.

22 ‘‘(47) The term ‘binding allocation of respon23 sibility’ means a final binding determination by an

24 allocation panel pursuant to title V.
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1 ‘‘(48) The term ‘orphan share’ means the total

2 of the assigned shares of all orphan parties at a site,

3 including all shares eligible for reimbursement or

4 payment pursuant to section 107(n).

5 ‘‘(49) The term ‘guardian of the fund’ or

6 ‘guardian’ means the person appointed by the Ad7 ministrator to represent the Environmental Protec8 tion Agency in a binding allocation of responsibility

9 proceeding.

10 ‘‘(50) The term ‘National Priority List site’

11 means any site or facility that the Administrator has

12 listed on, or proposed for listing on, the list estab13 lished pursuant to section 105(a)(8)(B).’’.

14 SEC. 108. ASSIGNMENT OF SHARES OF LIABILITY FOR

15 COSTS OF RESPONSE ACTIONS AT NATIONAL

16 PRIORITY LIST SITES.

17 Section 107(a) of the Comprehensive Environmental

18 Response, Compensation, and Liability Act of 1980 (42

19 U.S.C. 9607(a)), is amended by inserting before the

20 phrase ‘‘The amounts recoverable’’ the following: ‘‘With

21 respect to any National Priority List site, each liable party

22 who accepts the results of the allocation of responsibility

23 process under title V or who successfully appeals the re24 sults of such process shall be liable only for its assigned

25 share of the costs incurred pursuant to subparagraphs
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1 (A), (B), and (D) of this subsection. The orphan share

2 of a National Priority List site shall be paid out of the

3 Hazardous Substance Revolving Fund, as determined by

4 final binding allocation of liability.’’.

5 SEC. 109. ENFORCEMENT OF RESPONSE ACTIONS

6 THROUGH JOINT AND SEVERAL LIABILITY.

7 Section 107 of the Comprehensive Environmental Re8 sponse, Compensation, and Liability Act of 1980 (42

9 U.S.C. 9607), as amended by section 106, is further

10 amended by adding at the end the following: 

11 ‘‘(p) JOINT AND SEVERAL LIABILITY OF PARTIES

12 WHO FAIL TO PERFORM RESPONSE ACTIONS.—In any

13 case in which no liable party or potentially responsible

14 party agrees to perform a response action at a National

15 Priority List site, or a liable party or potentially respon16 sible party agrees to perform a response action but the

17 party fails to perform such response action, as determined

18 by the Administrator or the State in which the site is

19 located, the following provisions apply:

20 ‘‘(1) The party is considered to have not re21 solved its liability to the United States, notwith22 standing the party’s acceptance of the results of the

23 binding allocation of responsibility process under

24 title V or the party’s successful appeal of the results

25 of such process.
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1 ‘‘(2) The party is subject to civil action under

2 section 106, subparagraphs (A), (B), and (D) of

3 subsection (a) of this section, and section 113 for

4 the response action and all costs of the response ac5 tion with respect to the National Priority List site.

6 ‘‘(q) PAYMENT OF CERTAIN RESPONSE COSTS BY

7 FUND.—A potentially responsible party who performs and

8 pays for a response action at a National Priority List site

9 shall be reimbursed by the Hazardous Substance Revolv10 ing Fund.

11 ‘‘(r) AUTHORITY TO COLLECT RESPONSE COSTS

12 FROM OTHERS.—A liable party who performs and pays

13 for a response action at a National Priority List site is

14 a creditor party under section 508 with respect to the site

15 and may recover its response costs in accordance with that

16 section.’’.

17 SEC. 110. ESTABLISHMENT OF BINDING ALLOCATION OF

18 RESPONSIBILITY PROCESS.

19 The Comprehensive Environmental Response, Com20 pensation, and Liability Act of 1980 (42 U.S.C. 9601 et

21 seq.) is amended by adding at the end the following new

22 title:

23 ‘‘TITLE V—BINDING ALLOCA24 TION OF RESPONSIBILITY

‘‘Sec. 501. General rules governing binding allocations of responsibility.

‘‘Sec. 502. Qualifications and powers of administrative law judges and allocation panels.
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‘‘Sec. 503. Specific rules and procedures.

‘‘Sec. 504. Duty to answer information requests and requests for production of

documents.

‘‘Sec. 505. Civil and criminal penalties.

‘‘Sec. 506. Document repository; confidentiality; no waiver.

‘‘Sec. 507. Final agency action and judicial review.

‘‘Sec. 508. Collection, enforcement, and implementation.

‘‘Sec. 509. Transition provisions.

‘‘Sec. 510. Voluntary settlements.

‘‘Sec. 511. New binding allocations of responsibility.

1 ‘‘SEC. 501. GENERAL RULES GOVERNING BINDING ALLOCA2 TIONS OF RESPONSIBILITY.

3 ‘‘(a) ALLOCATION PANELS.—The Administrator shall

4 appoint panels of administrative law judges to perform ex5 pedited administrative proceedings, to be known as ‘bind6 ing allocations of responsibility’, for purposes of determin7 ing the liability of potentially responsible parties at Na8 tional Priority List sites. Each such panel shall be com9 posed of three administrative law judges appointed by the

10 Administrator under section 3105 of title 5, United States

11 Code, and shall be known as an ‘allocation panel’.

12 ‘‘(b) RULES OF DECISION.—The decisions of alloca13 tion panels under this title shall be rendered based on the

14 provisions of this Act and the court decisions interpreting

15 such provisions.

16 ‘‘SEC. 502. QUALIFICATIONS AND POWERS OF ALLOCATION

17 PANELS.

18 ‘‘(a) QUALIFICATIONS.—An administrative law judge

19 may not be appointed to an allocation panel under section

20 501 unless the judge completes at least 40 hours of edu-
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1 cation and training, as specified by the Administrator, in

2 the following subject areas:

3 ‘‘(1) The operation of this Act and the regula4 tions promulgating this Act.

5 ‘‘(2) The science of soil and groundwater con6 tamination and the technology for treating such con7 tamination.

8 ‘‘(b) GENERAL POWERS.—An allocation panel shall

9 have the power and authority to perform all functions nec10 essary to administer and perform the binding allocations

11 of responsibility, including the power to—

12 ‘‘(1) issue information requests and requests for

13 production of documents to any person;

14 ‘‘(2) require the Administrator and the State

15 concerned to provide all information relevant to a

16 binding allocation of responsibility, including the

17 production of copies of all documents and informa18 tion obtained pursuant to section 104(e) or pursuant

19 to similar State law;

20 ‘‘(3) rule upon motions, requests, and offers of

21 proof, dispose of procedural requests, and issue all

22 necessary orders;

23 ‘‘(4) administer oaths and affirmations and

24 take affidavits;
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1 ‘‘(5) examine witnesses and receive documen2 tary or other evidence;

3 ‘‘(6) grant and manage such discovery by the

4 parties as the allocation panel deems appropriate

5 and consistent with the expedited nature of the bind6 ing allocation of responsibility process;

7 ‘‘(7) admit or exclude evidence;

8 ‘‘(8) hear and decide questions of fact and law;

9 ‘‘(9) require the parties, including the State

10 and the guardian of the Fund, to attend conferences

11 for the settlement or simplification of the issues or

12 the expedition of the proceedings;

13 ‘‘(10) require, at any time, that potentially re14 sponsible parties wishing to present similar legal or

15 factual arguments use a common spokesman or con16 solidated briefing for the presentation of such facts

17 and legal positions;

18 ‘‘(11) obtain or employ such support services as

19 are necessary to conduct the binding allocation of re20 sponsibility, including secretarial and clerical serv21 ices, investigative services, and computer information

22 and database management services;

23 ‘‘(12) establish a document repository where all

24 documents associated with the binding allocation of

25 responsibility shall be maintained and made avail-
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1 able to all parties to the binding allocation of re2 sponsibility in accordance with section 506; and

3 ‘‘(13) do all other acts and take all measures

4 necessary for the maintenance of order and for the

5 efficient, fair, and impartial adjudication of issues

6 arising in the binding allocation of responsibility.

7 ‘‘(c) SUBPOENA POWER.—Allocation panels shall

8 have the power of subpoena to collect information nec9 essary or appropriate for conducting the binding allocation

10 of responsibility or for otherwise implementing this sec11 tion. This authority shall include the power to compel the

12 attendance and testimony of witnesses and the production

13 of reports, papers, documents, answers to questions, and

14 other information that the allocation panel deems nec15 essary. Witnesses shall be paid the same fees and mileage

16 that are paid witnesses in the courts of the United States.

17 In the event of contumacy or failure or refusal of any per18 son to obey any such subpoena, any district court of the

19 United States in which venue is proper shall have jurisdic20 tion to order any such person to comply with such

21 subpoena.

22 ‘‘(d) INFORMAL RULES OF EVIDENCE.—In conduct23 ing the binding allocation of responsibility, an allocation

24 panel shall not be bound by the Federal Rules of Evidence,

25 but shall instead use such informal rules of evidence and
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1 evidentiary procedures, such as those set forth at sections

2 22.22 and 22.23 of title 40 of the Code of Federal Regula3 tions, as will promote the expeditious completion of the

4 proceeding.

5 ‘‘(e) NATIONWIDE SERVICE OF PROCESS.—Any docu6 ment required to be served on a party under this title may

7 be served in any district where the person is found, re8 sides, transacts business, or has appointed an agent for

9 service of process. Any such document is deemed to be

10 served on a party if it is mailed to the counsel of record

11 for the party or to the address designated by the party

12 if the party is not represented by counsel.

13 ‘‘SEC. 503. SPECIFIC RULES AND PROCEDURES.

14 ‘‘(a) INITIATION OF ALLOCATION PROCESS.—

15 ‘‘(1) IN GENERAL.—A binding allocation of re16 sponsibility with respect to a National Priority List

17 site shall be initiated by filing a petition with the Of18 fice of the Administrative Law Judges of the Envi19 ronmental Protection Agency. Such a petition may

20 be filed by the Administrator or the State where the

21 National Priority List site is located.

22 ‘‘(2) WHEN INITIATED.—The Administrator or

23 a State shall file a petition to initiate a binding allo24 cation of responsibility at a National Priority List

25 site not later than 30 days after initiating the reme-
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1 dial investigation study (or its equivalent) for the

2 site. In any case where the petition is filed more

3 than 30 days after initiation of the remedial inves4 tigation study (or its equivalent), all governmental

5 response costs incurred or contracted for prior to the

6 filing of the petition shall be allocated entirely to the

7 orphan share.

8 ‘‘(3) CONTENTS OF PETITION.—The petition to

9 initiate the binding allocation of responsibility pro10 ceeding shall identify the petitioner and shall include

11 all relevant information reasonably available con12 cerning—

13 ‘‘(A) the identity, location, history, current

14 status, and environmental condition of the Na15 tional Priority List site;

16 ‘‘(B) the identity and address of each per17 son believed by the petitioner to be a liable

18 party and the basis for such belief;

19 ‘‘(C) any proposed questions and document

20 requests that the petitioner believes should be

21 included in the allocation panel’s first informa22 tion request and document request; and

23 ‘‘(D) a list of any legal or technical issues

24 that the petitioner believes may be raised in the

25 binding allocation of responsibility.
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1 ‘‘(4) SERVICE.—A copy of the petition shall be

2 served by mail, publication, or otherwise on the Ad3 ministrator, the State where the site is located, and

4 each potentially responsible party identified in the

5 petition. Within 20 days after the filing of the peti6 tion, the Hearing Clerk of the Office of Administra7 tive Law Judges shall cause a notice of the filing of

8 the petition, together with a brief description of the

9 site and a list of all potentially responsible parties

10 identified in the petition, to be published in the Fed11 eral Register. The petitioner shall cause a similar

12 notice, description, and list to be published in a

13 newspaper of general circulation within the State

14 where the site is located.

15 ‘‘(5) PRIOR INVESTIGATION AND SEARCH.—The

16 Administrator or the State, as the case may be,

17 shall, prior to filing a petition, conduct a thorough

18 investigation and search, under section 104(e) or

19 any other relevant Federal or State statutory or reg20 ulatory authority, for all potentially responsible par21 ties. All information, answers, and documents dis22 covered in such investigation or search and relevant

23 to any aspect of the binding allocation of responsibil24 ity shall, simultaneously with the filing of the peti25 tion, be filed in the document repository for the
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1 binding allocation of responsibility. If the allocation

2 panel determines that the Administrator or the

3 State failed to conduct a diligent search for poten4 tially responsible parties in accordance with this

5 paragraph, and if another party performs additional

6 investigations and successfully identifies additional

7 potentially responsible parties, then the allocation

8 panel shall credit all of the reasonable costs of such

9 additional search against the assigned share, if any,

10 of the party that performed such additional inves11 tigation or search.

12 ‘‘(6) APPOINTMENT OF GUARDIAN FOR THE

13 HAZARDOUS SUBSTANCE SUPERFUND.—Any petition

14 filed by the Administrator shall include the name

15 and address of the person appointed to serve as the

16 guardian for the Hazardous Substance Superfund

17 for that binding allocation of responsibility. In any

18 case where a petition is initiated by a State, the Ad19 ministrator shall notify the Hearing Clerk of the Of20 fice of the Administrative Law Judges within 10

21 days after the petition is filed of the name and ad22 dress of the person designated by the Administrator

23 as the guardian for the Hazardous Substance

24 Superfund. If the Environmental Protection Agency

25 is also a potentially responsible party or a liable
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1 party with respect to the National Priority List site

2 concerned, then the agency may participate in the

3 binding allocation of responsibility with regard to

4 such liability, but the person designated as the

5 guardian shall not represent the agency with regard

6 to the agency’s status as a potentially responsible

7 party or liable party.

8 ‘‘(b) IDENTIFICATION OF POTENTIALLY RESPON9 SIBLE PARTIES.—

10 ‘‘(1) INITIAL STATEMENT.—(A) Not later than

11 30 days after receipt of a copy of a petition or after

12 publication in the Federal Register of a notice of the

13 filing of an initial petition (whichever is earlier)

14 under subsection (a)(4), the guardian, the State and

15 any potentially responsible party may file an initial

16 statement setting forth—

17 ‘‘(i) any defenses to liability;

18 ‘‘(ii) any equitable considerations pertain19 ing to any party’s potential liability;

20 ‘‘(iii) any additional facts and issues rel21 evant to the binding allocation of responsibility;

22 ‘‘(iv) any proposed questions or document

23 requests that the person filing the statement

24 believes should be included in the first informa25 tion request issued by the allocation panel; and
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1 ‘‘(v) the name and address of any addi2 tional person or persons that the person filing

3 the statement believes may be a liable party at

4 the National Priority List site and all reason5 ably available information as to the relationship

6 between each proposed additional party and the

7 site.

8 ‘‘(B) Any initial statement shall be filed with

9 the Hearing Clerk and served on all parties named

10 in the petition and named in such initial statement.

11 ‘‘(2) INFORMATION REQUESTS AND REQUESTS

12 FOR PRODUCTION OF DOCUMENTS.—(A) Not later

13 than 30 days after the filing of the petition, the allo14 cation panel shall mail initial information requests

15 and requests for production of documents to the

16 guardian, the State, all potentially responsible par17 ties identified in the petition, and all additional par18 ties identified in the initial statements. Responses to

19 such requests shall be made in accordance with this

20 paragraph and section 504.

21 ‘‘(B) Within 45 days after a person receives

22 any information request or request for production of

23 documents, such person shall file a response with the

24 Hearing Clerk. For good cause shown, the allocation

25 panel may grant a single 45-day extension for the
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1 filing of any such response. Each party shall have a

2 continuing obligation to supplement its response

3 upon the receipt of additional relevant information.

4 ‘‘(3) ADDITIONAL NOMINATIONS OF POTEN5 TIALLY RESPONSIBLE PARTIES.—The parties may

6 identify and nominate additional potentially respon7 sible parties until the expiration of the 120-day pe8 riod beginning on the date of filing of the petition.

9 Any nominations received by the Hearing Clerk after

10 that period may be disregarded by the allocation

11 panel. Each nomination shall include all reasonably

12 available information supporting the assertion that

13 the nominee is a liable party and shall be made at

14 the earliest possible time. Any party making an ad15 ditional nomination shall serve notice of such nomi16 nation on the nominated party and file a copy of

17 such notice with the Hearing Clerk. The nominated

18 party may file its initial response not later than 30

19 days after receipt of the notice. The allocation panel

20 may issue information requests and requests for the

21 production of documents to any nominated party at

22 any time.

23 ‘‘(4) INITIAL LIST OF ALL POTENTIALLY RE24 SPONSIBLE PARTIES.—Within six months after the

25 filing of the petition, the allocation panel shall cause
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1 to be published in the Federal Register and a news2 paper of general circulation in the State where the

3 site is located a list identifying all parties that the

4 allocation panel preliminarily deems to be potentially

5 responsible parties with respect to the site. The allo6 cation panel also shall attempt to mail a copy of the

7 list to all parties to the binding allocation of respon8 sibility. The allocation panel shall reject the nomina9 tion of any person as a liable party or potentially re10 sponsible party if it finds that the nomination al11 leges no connection between the nominated person

12 and the site. The allocation panel may also identify,

13 on its own motion or the motion of a potentially re14 sponsible party, additional potentially responsible

15 parties at any time before issuance of the final bind16 ing allocation of responsibility.

17 ‘‘(c) DE MICROMIS PARTIES.—(1) Not later than six

18 months after the filing of the petition, the allocation panel

19 shall issue a list identifying all potentially responsible par20 ties that the allocation panel determines contributed only

21 one hundred pounds or one hundred liters of material con22 taining hazardous substances at the facility (or such

23 greater or lesser amount as the Administrator may deter24 mine by regulation), to be known as ‘de micromis parties’.

25 The allocation panel shall base the determination on an
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1 evaluation of all evidence received at the time of the issu2 ance of the list with respect to the amount of hazardous

3 substances contributed by potentially responsible parties.

4 ‘‘(2) The allocation panel shall notify each de

5 micromis party of its inclusion on the list issued under

6 paragraph (1) not later than 20 days after issuing the list.

7 ‘‘(3) Any person included on the list of de micromis

8 parties is exempt from liability to the United States and

9 shall have no other liability (including liability for con10 tribution), under Federal or State law, to any person for

11 response actions or for any past, present, or future costs

12 incurred at the site, provided that the person takes no

13 other actions after being included on the list that would

14 give rise to a separate basis for liability under this Act.

15 ‘‘(d) IDENTIFICATION OF LIABLE PARTIES AND DE16 TERMINATION OF ASSIGNED SHARES.—

17 ‘‘(1) FIRST ALLOCATION ADVOCACY PAPER.—

18 Unless the allocation panel determines that it would

19 unduly delay the process, the guardian, the State,

20 and any potentially responsible party may file an al21 location advocacy paper with the Hearing Clerk not

22 later than 30 days after the publication of the initial

23 list of potentially responsible parties in the Federal

24 Register. Any such allocation advocacy paper, which

25 shall be served on the guardian, the State, and each
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1 potentially responsible party, shall be a concise

2 statement, together with citations to relevant sup3 porting evidence and law, of the party’s position

4 with regard to—

5 ‘‘(A) the legal and factual criteria that

6 should be used in determining whether a poten7 tially responsible party at the site is a liable

8 party; and

9 ‘‘(B) how the allocation factors set forth in

10 subsection (g)(2) should be applied to deter11 mine the assigned share of each liable party.

12 ‘‘(2) FIRST ALLOCATION REPORT.—Within 90

13 days after the publication of the initial list of poten14 tially responsible parties in the Federal Register, the

15 allocation panel shall issue its first allocation report

16 tentatively specifying the criteria to be used in iden17 tifying the liable parties, tentatively specifying how

18 the allocation factors will be applied to the case to

19 determine assigned shares, and setting forth the

20 process and schedule that will be used to allow par21 ties the opportunity to present written evidence and

22 argument regarding how such criteria and factors

23 apply to the case. The first allocation report shall be

24 served on the guardian, on the State, and on each

25 potentially responsible party.
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1 ‘‘(3) SECOND ALLOCATION ADVOCACY PAPER.—

2 The guardian, the State, and each potentially re3 sponsible party may file an allocation advocacy

4 paper with the Hearing Clerk not later than 60 days

5 after receipt of the first allocation report. The allo6 cation advocacy paper, which shall be served on the

7 guardian, the State, and each potentially responsible

8 party, shall be the primary opportunity for the

9 guardian, the State, and each potentially responsible

10 party to present evidence and argument regarding

11 how the liability criteria and the allocation factors

12 should be applied to such party and, if desired by

13 the person filing the paper, how those criteria and

14 factors should be applied to other potentially respon15 sible parties at the site.

16 ‘‘(4) HEARING.—Any potentially responsible

17 party may request a hearing on the determination

18 that such party is a liable party and on the deter19 mination of its assigned share. The allocation panel

20 may hold such a hearing if the allocation panel de21 termines that it would expedite or materially assist

22 in the resolution of disputed factual or legal issues.

23 The allocation panel shall have broad discretion in

24 managing the conduct of any such hearing, including

25 limiting the time available to each party and requir-
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1 ing that parties with generally similar interests be

2 represented by a single spokesperson or common

3 counsel. The allocation panel may allow or prohibit

4 the cross-examination of witnesses.

5 ‘‘(5) RULE OF DECISION.—Any party may

6 present written evidence or argument on whether it,

7 or any other potentially responsible party, is a liable

8 party and on the appropriate assigned share for it9 self or any other potentially responsible party. A po10 tentially responsible party shall be deemed a liable

11 party if the allocation panel determines that the pre12 ponderance of the evidence supports the conclusion

13 that such party is liable.

14 ‘‘(6) SECOND ALLOCATION REPORT.—Following

15 the submission of advocacy papers and at the con16 clusion of any hearings, the allocation panel shall

17 issue a second allocation report identifying all liable

18 parties at the site and specifying the assigned share

19 of each liable party. If the second allocation report

20 changes or expands the list of potentially responsible

21 parties or the criteria or factors set forth in the first

22 allocation report, then the second report shall so

23 specify and provide a brief explanation of any such

24 change. The second allocation report shall be served
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1 on the guardian, the State, all potentially responsible

2 parties, and all liable parties.

3 ‘‘(e) DETERMINATION OF ORPHAN SHARE.—

4 ‘‘(1) ORPHAN SHARE ADVOCACY PAPER.—Un5 less the allocation panel determines that it would un6 duly delay the process, the guardian, the State, and

7 each liable party may file an orphan share advocacy

8 paper with the Hearing Clerk not later than the 30-

9 day period beginning on the date of issuance of the

10 second allocation report. The orphan share advocacy

11 paper shall be the primary opportunity for the

12 guardian, the State, and each liable party to present

13 written evidence and argument as to which liable

14 parties are orphan parties whose assigned share

15 should, in whole or in part, be assigned to the

16 orphan share.

17 ‘‘(2) ORPHAN SHARE REPORT.—Following the

18 expiration of the 30-day period referred to in para19 graph (1), the allocation panel shall issue an orphan

20 share allocation report identifying the orphan share.

21 The orphan share report shall be served on the

22 guardian, the State, all potentially responsible par23 ties, and all liable parties.

24 ‘‘(f) DETERMINATION OF NONLIABLE PARTIES.—(1)

25 At any time during the period beginning six months after
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1 the filing of the petition and ending 18 months after the

2 filing of the petition, the allocation panel shall issue a list

3 identifying all potentially responsible parties that the allo4 cation panel determines did not contribute any amount of

5 hazardous substances to the National Priority List site.

6 The allocation panel shall base the determination on an

7 evaluation of all evidence received at the time of the issu8 ance of the list with respect to the amount of hazardous

9 substances contributed by potentially responsible parties.

10 ‘‘(2) The allocation panel shall notify each nonliable

11 party of its inclusion on the list issued under paragraph

12 (1) not later than 20 days after issuing the list.

13 ‘‘(3) Nonliable parties shall have no other liability,

14 under Federal or State law, to any person for response

15 actions or for any past, present, or future costs incurred

16 at the site, provided that they take no other actions after

17 making such settlement payment that would give risk to

18 a separate basis for their liability under this Act.

19 ‘‘(g) FINAL BINDING ALLOCATION OF RESPONSIBIL20 ITY DECISION.—

21 ‘‘(1) DECISION.—(A) Not later than the dead22 line set forth in subparagraph (B), the allocation

23 panel shall issue a final binding allocation of respon24 sibility decision (in this subsection referred to as the

25 ‘final BAR decision’) based on the allocation factors
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1 listed in paragraph (2). The panel shall include the

2 Government’s costs of carrying out the allocation as

3 part of the response costs to be included in the final

4 BAR decision. The decision shall include a list of

5 all potentially responsible parties, a list of all liable

6 parties and the assigned share for each (including

7 all de minimis parties as determined under para8 graph (3)), a list of all orphan parties and the por9 tion of the assigned share of each orphan party that

10 is assigned to the orphan share, and the total or11 phan share assigned to the Revolving Fund. Where

12 an orphan party is able to pay only a portion of its

13 assigned share, the allocation panel shall allocate to

14 the orphan share the portion of the assigned share

15 that the party is unable to pay and require the party

16 to pay the remainder. The final BAR decision shall

17 provide a concise explanation of the basis for the de18 cision. The decision may consist, in whole or in part,

19 of a compilation of the first allocation report, the

20 second allocation report, and the orphan share re21 port.

22 ‘‘(B) The final BAR decision shall be issued not

23 later than 18 months after the date of publication

24 under section 503(a)(4) of notice that a petition for

25 a binding allocation of responsibility has been filed,
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1 except that, in a case of exceptional complexity, the

2 final decision shall be issued not later than 24

3 months after such date.

4 ‘‘(2) ALLOCATION FACTORS.—An allocation

5 panel shall determine the assigned share of each lia6 ble party based on the following factors:

7 ‘‘(A) The degree to which the liable party’s

8 contribution to a discharge, release, or disposal

9 of a hazardous substance can be distinguished.

10 ‘‘(B) The amount of hazardous substances

11 contributed by the liable party at the site con12 cerned, compared to the total amount of haz13 ardous substances at that site. The amount of

14 nonhazardous substances contributed by the lia15 ble party may not be considered.

16 ‘‘(C) The degree of toxicity of the hazard17 ous substance contributed by the liable party.

18 ‘‘(D) The degree of involvement by the lia19 ble party in the generation, transportation,

20 treatment, storage, or disposal of the hazardous

21 substance.

22 ‘‘(E) The degree of care exercised by the

23 liable party with respect to the hazardous sub24 stance concerned, taking into account the char25 acteristics of such hazardous substance, and the
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1 relative culpability of that party for the threat

2 to human health and the environment associ3 ated with the hazardous substance.

4 ‘‘(F) The degree of cooperation by the lia5 ble party with Federal, State, or local officials

6 to prevent any harm to the public health or the

7 environment.

8 ‘‘(G) The weight of the evidence as to the

9 liability and the appropriate share of the liable

10 party.

11 ‘‘(3) DE MINIMIS SETTLEMENTS.—(A) As part

12 of the final BAR decision, or at any time before the

13 issuance of the final BAR decision, the allocation

14 panel shall issue a list identifying all potentially re15 sponsible parties that the allocation panel deter16 mines contributed only 1.0 percent or less of the

17 total quantity of hazardous substances present at

18 the National Priority List site, to be known as ‘de

19 minimis parties’.

20 ‘‘(B) Not later than 60 days after issuance of

21 the final BAR decision or the issuance of the list of

22 de minimis parties under subparagraph (A), which23 ever is earlier, the Administrator shall make a firm

24 written offer of settlement to all de minimis parties.

25 The amount of the settlement offer for a de minimis
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1 party shall be stated in dollars, not a percentage

2 share of the cleanup costs, and shall be based on the

3 Environmental Protection Agency’s estimate of the

4 total cleanup cost at the site multiplied by the de

5 minimis party’s allocated share as determined by the

6 allocation panel and may be increased by a reason7 able premium (not exceeding 100 per cent of the de

8 minimis party’s allocated share) to reflect the benefit

9 of an early and complete resolution of liability, in10 cluding consideration of whether the remedy at the

11 site will entail multiple phases or operable units. All

12 settlement offers by the Administrator to de minimis

13 parties at the same site shall be based on the same

14 estimate of cleanup costs and the same premium.

15 The settlement offer under this subparagraph is not

16 subject to judicial review.

17 ‘‘(C) A de minimis party may accept or decline

18 a settlement offer, but any acceptance of the offer

19 must be made within 60 days after receipt of the

20 offer. A de minimis party that accepts the offer may

21 resolve its liability to the United States by paying

22 the amount of the offer to the Hazardous Substance

23 Revolving Fund. Such settlement may not be re24 opened after payment is made, except on grounds of

25 fraud.
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1 ‘‘(D) De minimis parties that accept the settle2 ment offer and pay the amount of the offer shall

3 have no other liability, under Federal or State law,

4 to any person for response actions or for any past,

5 present, or future costs incurred at the site, provided

6 that they take no other actions after making such

7 settlement payment that would give rise to a sepa8 rate basis for their liability under this Act.

9 ‘‘(E) All proceeds from de minimis settlements

10 under this paragraph that represent the allocated

11 shares of de minimis parties at a site shall be held

12 by the Administrator for timely payment directly to

13 the person performing the response action at the

14 site. All proceeds from de minimis settlements under

15 this paragraph that represent premiums paid by de

16 minimis parties at the site shall be earmarked in the

17 Hazardous Substance Revolving Fund to be used

18 specifically for costs of response action at the site.

19 Any amounts of such settlements remaining in the

20 Revolving Fund after completion of the response ac21 tion shall be available in the Revolving Fund for

22 general use.

23 ‘‘(4) SERVICE AND PUBLICATION.—The binding

24 allocation of responsibility decision shall be served

25 on the guardian, the State, and all liable parties.
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1 The Hearing Clerk shall cause a notice of the bind2 ing allocation of responsibility decision to be pub3 lished in the Federal Register and in a newspaper of

4 general publication in the State where the site is

5 located.

6 ‘‘(5) BINDING EFFECT.—The binding allocation

7 of responsibility decision shall be binding as to all

8 past, present, or future liability (i) for response

9 costs incurred under section 107(a)(4)(A), (B), or

10 (D), and (ii) for contribution under section 113. The

11 binding allocation of responsibility decision shall be

12 binding on all persons, including, without limitation,

13 the United States, any affected State or local gov14 ernmental agency or Indian Tribe, any alleged or

15 nominated potentially responsible party (regardless

16 of whether such party participates in the binding al17 location of responsibility), and the public.

18 ‘‘(6) EFFECT ON OTHER PROCEEDINGS.—A de19 termination that a person is a liable party under a

20 binding allocation of responsibility proceeding is ap21 plicable only with respect to liability being assigned

22 in the proceeding and not with respect to liability

23 being determined in any other criminal, civil, or ad24 ministrative proceeding.
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1 ‘‘SEC. 504. DUTY TO ANSWER INFORMATION REQUESTS AND

2 REQUESTS FOR PRODUCTION OF DOCU3 MENTS.

4 ‘‘(a) DUTY TO ANSWER.—Each person who receives

5 any information request or request for production of docu6 ments from the allocation panel during a binding alloca7 tion of responsibility must provide full and timely re8 sponses to the request.

9 ‘‘(b) CERTIFICATION OF DOCUMENTS.—Answers to

10 information requests and requests for production of docu11 ments shall include a certification by a responsible rep12 resentative who meets the criteria established in section

13 270.11(a) of title 40 of the Code of Federal Regulations

14 that the answers—

15 ‘‘(1) are true and correct to the best of their

16 knowledge;

17 ‘‘(2) are based on a diligent good faith search

18 of records in the possession or control of the person

19 to whom the request was directed;

20 ‘‘(3) are based on a reasonable inquiry of the

21 current and former officers, directors, employees,

22 and agents of the person to whom the request was

23 directed;

24 ‘‘(4) accurately reflect information obtained in

25 the course of conducting such search and such

26 inquiry;
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1 ‘‘(5) that the person executing the certification

2 understands that there is a duty to supplement any

3 such answers if, during the binding allocation of re4 sponsibility, any significant additional, new, or dif5 ferent information becomes known or available to

6 the answerer; and

7 ‘‘(6) that the person executing the certification

8 understands that there are significant penalties for

9 submitting false information, including the possibil10 ity of fine and imprisonment for knowing violations.

11 ‘‘(c) SANCTION.—In addition to any other penalty or

12 sanction, any person who fails to answer an information

13 request or request for production of documents, and who

14 is determined to be a liable party, shall be assigned an

15 assigned share of up to 500 percent of whatever its as16 signed share would otherwise have been, or up to 50 per17 cent of the total liability at the site, whichever is greater.

18 If this results in a binding allocation of responsibility that

19 allocates more than 100 percent of the total liability, then

20 the excess shall be deposited into the Hazardous Sub21 stance Revolving Fund.

22 ‘‘SEC. 505. CIVIL AND CRIMINAL PENALTIES.

23 ‘‘(a) CIVIL PENALTIES.—Any person who fails to

24 submit a complete and timely answer to an allocation pan25 el’s information request or request for production of docu-
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1 ments or other discovery request, or who submits (after

2 being notified of the requirement for a certification) a re3 sponse that lacks the certification required under section

4 504(b), or who makes any false or misleading material

5 statement or representation in any submission to the allo6 cation panel during the binding allocation of responsibility

7 process, including statements or representations in con8 nection with the nomination of another potentially respon9 sible party, shall be subject to civil penalties of up to

10 $10,000 per day of violation. The violation shall be

11 deemed a continuing one until such time as the request

12 is answered or the necessary certification is submitted or

13 the false or misleading statement or representation is cor14 rected. Such penalties may be assessed by the President

15 in accordance with section 109.

16 ‘‘(b) CRIMINAL PENALTIES.—Any person who know17 ingly makes any false material statement or representation

18 in the response to an allocation panel’s information re19 quest or request for the production of documents or other

20 discovery request, or in any other submission to the alloca21 tion panel during the binding allocation of responsibility,

22 including statements or representations in connection with

23 the nomination of another potentially responsible party,

24 may be fined under title 18, United States Code, impris25 oned for not more than 2 years, or both.
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1 ‘‘SEC. 506. DOCUMENT REPOSITORY; CONFIDENTIALITY; NO

2 WAIVER.

3 ‘‘(a) DOCUMENT REPOSITORY.—The allocation panel

4 shall establish and maintain a document repository where

5 copies of all petitions, initial statements, advocacy papers,

6 reports, answers to information requests and requests for

7 production of documents by the allocation panel, answers

8 to Federal or State information requests or requests for

9 the production of documents issued prior to the filing of

10 the petition, produced documents, and all other similar

11 material shall be maintained and organized. The docu12 ments and information in the document repository shall

13 be available only to the parties to the binding allocation

14 of responsibility for review and copying at their own ex15 pense, subject only to the confidentiality provisions of sub16 section (b). All responses to any information request or

17 request for production of documents by the allocation

18 panel shall be filed with the clerk for the document reposi19 tory and need not be served on other potentially respon20 sible parties, the State, or the guardian.

21 ‘‘(b) CONFIDENTIALITY.—(1) All pleadings, docu22 ments, and materials submitted to the allocation panel or

23 placed in the document repository, together with the

24 record of any depositions or testimony adduced during the

25 binding allocation of responsibility, shall be confidential

26 and shall not be subject to release under section 552 of
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1 title 5, United States Code (the Freedom of Information

2 Act). The Hearing Clerk and each party to the binding

3 allocation of responsibility proceeding shall maintain such

4 pleadings, documents, and materials, together with the

5 record of any depositions or testimony adduced during the

6 binding allocation of responsibility, as confidential. Such

7 material shall not be discoverable or admissible in any

8 other Federal, State or local judicial, administrative, or

9 legislative proceeding of any kind whatsoever, except—

10 ‘‘(A) to the extent necessary to collect or other11 wise enforce in court the assigned share of a liable

12 party as determined by the binding allocation of

13 responsibility;

14 ‘‘(B) in a proceeding for judicial review of the

15 binding allocation of responsibility;

16 ‘‘(C) in any new binding allocation of respon17 sibility proceeding concerning the same site; and

18 ‘‘(D) in any binding allocation of responsibility

19 involving a different site where the allocation panel

20 determines that the sites are related and that speci21 fied documents from the first binding allocation of

22 responsibility could materially assist the second

23 binding allocation of responsibility.

24 ‘‘(2) Notwithstanding paragraph (1)(D), if the origi25 nal of any document or material submitted to the alloca-
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1 tion panel or placed in the document repository during the

2 binding allocation of responsibility was, while in the pos3 session of the party which provided it, otherwise discover4 able or admissible, then such original document, if subse5 quently sought from such party, shall remain discoverable

6 or admissible. If a fact covered in any deposition or testi7 mony adduced during the binding allocation of responsibil8 ity was, in the knowledge of the witness or deponent, oth9 erwise discoverable or admissible, then such testimony, if

10 subsequently sought from such other party, shall remain

11 discoverable or admissible.

12 ‘‘(c) NO WAIVER OF PRIVILEGE.—The submission of

13 documents or information pursuant to the binding alloca14 tion of responsibility proceeding shall not be deemed to

15 be a waiver of any privilege, applicable to the original doc16 ument or fact, under any Federal or State law, regulation,

17 or rule of discovery or evidence.

18 ‘‘(d) DISCOVERY.—In any case where a party to a

19 binding allocation of responsibility receives any request for

20 any pleading, document, or material, or for the record of

21 any depositions or testimony adduced in a binding alloca22 tion of responsibility, such party shall promptly notify the

23 person who originally submitted such item and shall pro24 vide such submitting person the opportunity to assert and

25 defend the confidentiality of such item. No party to the
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1 binding allocation of responsibility shall release or provide

2 a copy of any pleading, document, or material, or the

3 record of any depositions or testimony adduced therein,

4 to any person not a party to such binding allocation of

5 responsibility, except in compliance with an order from a

6 court.

7 ‘‘(e) CIVIL PENALTY FOR VIOLATION OF CONFIDEN8 TIALITY REQUIREMENTS.—Any person who fails to main9 tain the confidentiality of any pleadings, documents, or

10 materials, or the record of any deposition or testimony ad11 duced during the binding allocation of responsibility, or

12 who releases any such information in violation of this sec13 tion, shall be subject to a civil penalty of up to $25,000

14 per violation. Such a penalty may be assessed by the Presi15 dent in accordance with section 109.

16 ‘‘SEC. 507. FINAL AGENCY ACTION AND JUDICIAL REVIEW.

17 ‘‘(a) FINAL AGENCY ACTION.—The binding alloca18 tion of responsibility decision of the allocation panel shall

19 constitute final agency action pursuant to section 706 of

20 title 5, United States Code, subject only to review by the

21 Administrator in situations of fraud or gross misconduct.

22 ‘‘(b) JUDICIAL REVIEW.—

23 ‘‘(1) IN GENERAL.—No Federal or State court

24 shall have jurisdiction to review, modify, or enjoin

25 any aspect of any binding allocation of responsibility
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1 proceeding except as expressly set forth in this sub2 section. No aspect of any action, decision, ruling, or

3 determination by an allocation panel in any binding

4 allocation of responsibility proceeding shall be sub5 ject to administrative or judicial review in any Fed6 eral or State court until after the final binding allo7 cation of responsibility decision (in this subsection

8 referred to as the ‘final BAR decision’) is issued by

9 the allocation panel. Any person determined by the

10 allocation panel to be a liable party, other than the

11 Administrator and the guardian, may obtain judicial

12 review of a final BAR decision by filing a petition

13 for review with the United States Court of Appeals

14 for the Circuit in which the facility is located or for

15 the District of Columbia.

16 ‘‘(2) PETITION.—Any such petition for review

17 must be filed within 60 days after the date of the

18 final BAR decision by the allocation panel. The peti19 tion shall set forth either the specific assigned share

20 of liability that the petitioner believes should have

21 been assigned to it (or, in the case of a petition filed

22 by the guardian, the assigned share that the guard23 ian believes should have been assigned to the orphan

24 share) in the binding allocation of responsibility, or

25 stating specifically that the petitioner believes it
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1 should not have been found to have any liability at

2 all.

3 ‘‘(3) REVIEW.—Judicial review of the final

4 BAR decision shall be conducted on the administra5 tive record, which shall include all materials relating

6 to the issues raised on appeal by the petitioner that

7 are contained in the document repository described

8 in section 506(a). The court shall set aside the bind9 ing allocation of responsibility only if it is found to

10 be unsupported by substantial evidence.

11 ‘‘(4) PAYMENT DURING PENDENCY OF RE12 VIEW.—During the pendency of a petition for review

13 under this section, the petitioner shall pay any de14 mand notices rendered for its assigned share in ac15 cordance with the binding allocation of responsibility

16 decision, subject to later refund if the petitioner pre17 vails in the litigation.

18 ‘‘(5) CONDUCT OF RESPONSE ACTION DURING

19 PENDENCY OF REVIEW.—During the pendency of a

20 petition for review under this section, response ac21 tion with respect to the site may occur, but only as

22 provided in section 121(b)(7).

23 ‘‘(6) LIABILITY OF SUCCESSFUL PETITIONER.—

24 If the petitioner is a liable party and the court

25 adopts the assigned share proposed by the peti-
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1 tioner, then the difference between that share and

2 the share originally assigned to the petitioner shall

3 be added to the orphan share.

4 ‘‘(7) LIABILITY OF UNSUCCESSFUL PETI5 TIONER.—(A) In the case of a petitioner who is a

6 liable party petitioning for a change in the petition7 er’s assigned share, and the court does not adopt the

8 assigned share proposed by the petitioner, the fol9 lowing provisions apply:

10 ‘‘(i) The petitioner shall reimburse all

11 other parties that participated in the appeal for

12 the actual attorneys’ fees and costs that they

13 incurred in defending the binding allocation of

14 responsibility decision.

15 ‘‘(ii) The petitioner may participate in the

16 settlement based on its assigned share if the pe17 titioner notifies the court of such intention

18 within 10 days after the court’s decision on the

19 petition.

20 ‘‘(iii) If the petitioner does not give notice

21 as described in clause (ii), the petitioner is con22 sidered to have not resolved its liability to the

23 United States and is subject to civil action

24 under section 106, 107(a), and 113 for the fol-
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1 lowing response costs with respect to the Na2 tional Priority List site concerned:

3 ‘‘(I) The assigned share of the peti4 tioner, as determined in the final BAR de5 cision, plus

6 ‘‘(II) the orphan share for that site.

7 ‘‘(iv) A petitioner covered by clause (ii) is

8 subject to claims for contribution from, and

9 may make claims for contribution against, other

10 unsuccessful petitioners with respect to the Na11 tional Priority List site concerned.

12 ‘‘(B) In the case of a petitioner who is a liable

13 party petitioning for a determination that the peti14 tioner is not liable with respect to the site concerned

15 (for reasons such as the fact that the petitioner is

16 a successor to, or a parent or subsidiary of, a com17 pany which the petitioner believes should be assigned

18 liability instead), and the court denies the petition,

19 the petitioner is liable for its assigned share as de20 termined in the final BAR decision.

21 ‘‘SEC. 508. COLLECTION, ENFORCEMENT, AND IMPLEMEN22 TATION.

23 ‘‘(a) COLLECTION.—

24 ‘‘(1) AMOUNT RECOVERABLE.—After a final

25 binding allocation of responsibility decision is made
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1 with respect to a National Priority List site, any

2 creditor party may, in accordance with paragraph

3 (2), recover from any debtor party the following:

4 ‘‘(A) With respect to a debtor party who is

5 a liable party, that party’s assigned share, as

6 determined under the binding allocation of re7 sponsibility.

8 ‘‘(B) With respect to a debtor party which

9 is the Hazardous Substance Revolving Fund,

10 the orphan share, as determined under the

11 binding allocation of responsibility.

12 ‘‘(C) With respect to a debtor party who is

13 either a liable party or the Hazardous Sub14 stance Revolving Fund, any attorneys’ fees in15 curred by the creditor party in a judicial action

16 seeking to recover costs from the debtor party.

17 ‘‘(2) PROCEDURES FOR RECOVERY.—Recovery

18 by a creditor party from a debtor party shall be car19 ried out in accordance with the following provisions:

20 ‘‘(A) The creditor party shall file a cer21 tified copy of the final decision of the binding

22 allocation of responsibility in the United States

23 District Court for the district in which the site

24 is located.
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1 ‘‘(B) The creditor party shall file a verified

2 statement with the same court specifying the

3 actions taken and the costs incurred by the

4 creditor party, and stating that such actions

5 and costs are not inconsistent with the National

6 Contingency Plan.

7 ‘‘(C) The creditor party shall serve a de8 mand notice to each debtor party against whom

9 enforcement is sought and shall deliver a copy

10 of each such notice to the Administrator and

11 the State in which the site is located. The de12 mand notice shall specify the total amount of

13 costs covered by the notice, state a demand

14 amount (consisting of the debtor party’s as15 signed share or, with regard to the Revolving

16 Fund, the orphan share), and demand that the

17 debtor party pay such demand amount within

18 30 days after receipt of the notice. Any demand

19 notice served by a creditor party shall provide

20 that a debtor party may pay the demand

21 amount over a period of time in installment

22 payments. A copy of the demand notice shall be

23 filed with the United States District Court for

24 the district in which the site is located.
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1 ‘‘(D) With respect to any response actions

2 or expenditures of a continuing nature, verified

3 statements and demand notices shall be filed

4 with the court and delivered to the debtor par5 ties and the guardian quarterly.

6 ‘‘(E) Where several liable parties, or a lia7 ble party and the Administrator or the State,

8 each take actions or incur costs not inconsistent

9 with the National Contingency Plan, different

10 demand notices may be issued concurrently.

11 ‘‘(b) PENALTIES AND DAMAGES.—Except in the case

12 of a challenge to collection duly filed in accordance with

13 subsection (c), if a liable party, including any Federal,

14 State, or local governmental agency, fails to pay the sum

15 specified in a demand notice within 30 days after receipt

16 of the notice (or, in the case of a debtor party paying by

17 installments, within 30 days after an installment payment

18 is due), such party shall be liable for the interest thereon,

19 civil penalties of up to $10,000 per day, and damages of

20 up to an amount equal to 3 times the sum specified in

21 the demand notice. In the case of the orphan share, if the

22 Hazardous Substance Revolving Fund fails to pay the sum

23 specified in a demand notice within 30 days after receipt

24 of the notice, the Revolving Fund shall be liable for inter-
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1 est thereon and damages of up to the amount equal to

2 2 times the sum specified in the demand notice.

3 ‘‘(c) CHALLENGES TO ENFORCEMENT.—There shall

4 be no administrative or judicial review of any aspect of

5 a demand notice filed and delivered pursuant to subsection

6 (a) except in accordance with this subsection. Within 30

7 days after receipt of a demand notice, a liable party or,

8 in the case of the orphan share, the guardian may file

9 a petition with the allocation panel that issued the binding

10 allocation of responsibility decision contending that the

11 costs reflected in the demand notice were incurred for ac12 tions inconsistent with the National Contingency Plan. If

13 such a petition is filed, the allocation panel shall conduct

14 an expedited review of the matter. The review shall be lim15 ited solely to the issue of the alleged inconsistency of the

16 response actions and costs with the National Contingency

17 Plan. The person challenging the demand notice shall have

18 the burden of proof that such actions and the claimed

19 costs are inconsistent with the National Contingency Plan.

20 The allocation panel’s decision shall not be subject to judi21 cial review. Payment need not be made, and no interest

22 shall accrue, pending the allocation panel’s decision.

23 ‘‘(d) SUBSEQUENT ADDITIONS TO ORPHAN

24 SHARE.—If good faith collection and enforcement efforts,

25 whether by the Federal or State government or by any
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1 other creditor party, against a liable party results in a ju2 dicial or administrative determination that such liable

3 party is an orphan party, then such liable party’s share

4 will be added to the orphan share amount and will be re5 coverable from the Hazardous Substance Revolving Fund.

6 ‘‘(e) CONTRIBUTION PROTECTION.—Liable parties

7 that pay their assigned share and comply with the binding

8 allocation of responsibility decision shall have no other li9 ability, under Federal or State law, to any person for costs

10 incurred at the site, and shall be granted covenants not

11 to sue by the Federal Government and the State govern12 ment concerned, except that the binding allocation of re13 sponsibility decision shall not affect any contract for insur14 ance or indemnification.

15 ‘‘SEC. 509. TRANSITION PROVISIONS.

16 ‘‘(a) IN GENERAL.—Except as provided in subsection

17 (b), no person may initiate any administrative or judicial

18 action under section 106, subparagraph (A), (B), or (D)

19 of section 107(a)(4), or section 113, or under any other

20 Federal or State law or regulation, for the recovery of re21 sponse costs, contribution, or performance of response ac22 tions regarding any National Priority List site until 90

23 days after a final binding allocation of responsibility is

24 issued.
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1 ‘‘(b) EXCEPTIONS.—Subsection (a) is subject to only

2 the following exceptions:

3 ‘‘(1) ADMINISTRATIVE ORDERS FOR EMER4 GENCY REMOVAL ACTIONS.—The President may

5 issue an order under section 106, prior to the issu6 ance of a final binding allocation of responsibility, if

7 the order is limited to those actions required to im8 plement immediate risk reduction measures pending

9 the issuance of the final binding allocation of re10 sponsibility decision.

11 ‘‘(2) CONTINUATION OF PENDING RESPONSE

12 ACTIONS.—In any case where, as of the date of en13 actment of this title, the Administrator or a State

14 has already issued a binding contract for the per15 formance of a remedial investigation/feasibility study

16 or has issued an administrative order or executed a

17 consent decree for the performance of any response

18 action, the binding allocation of responsibility proc19 ess shall not affect the timing or manner of imple20 mentation of such response actions.

21 ‘‘(c) STAY OF EXISTING ACTIONS.—

22 ‘‘(1) STAY OF PENDING ENFORCEMENT AC23 TIONS.—In any case where, as of the date of enact24 ment of this title, the Administrator or the State has

25 already initiated any administrative or judicial en-
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1 forcement action regarding the liability of any party

2 under section 106, subparagraph (A), (B), or (D) of

3 section 107(a)(4), or section 113, or under any other

4 Federal or State law or regulation for the response

5 costs, contribution, or performance of response ac6 tions, an allocation panel or court may issue a stay

7 of such action. Any such stay may last until 90 days

8 after a binding allocation of responsibility is issued,

9 any judicial review of such allocation is completed,

10 and a final administrative or judicial allocation deci11 sion is rendered.

12 ‘‘(2) STAY OF PENDING PRIVATE PARTY LITIGA13 TION.—In any case where, as of the date of enact14 ment of this title, any private person has initiated

15 any administrative or judicial action regarding the

16 liability of any party at a National Priority List site

17 under section 106, subparagraph (A), (B), or (D) of

18 section 107(a)(4), or section 113, or under any other

19 Federal or State law or regulation for the response

20 costs, contribution, or performance of response ac21 tions, such action shall be automatically stayed until

22 90 days after a binding allocation of responsibility is

23 issued, any judicial review of such allocation is com24 pleted, and a final administrative or judicial alloca25 tion decision is rendered.
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1 ‘‘(d) CREDIT FOR ACTIONS AND COSTS IN PENDING

2 MATTERS.—In the case of any response action performed

3 or cost incurred in any activity carried out pursuant to

4 subsection (b), the liability for such response action shall

5 be governed by, and the costs of implementing any such

6 response action or other activity carried out pursuant to

7 subsection (b), shall be included in the subsequently issued

8 binding allocation of responsibility for such National Pri9 ority List site. In conducting the binding allocation of re10 sponsibility, the allocation panel shall, to the extent rea11 sonably possible, give credit for any prior costs incurred

12 or response actions performed at the National Priority

13 List site.

14 ‘‘(e) LIMITATIONS ON EXISTING ACTIONS.—(1) The

15 time period described in paragraph (2) shall not be count16 ed in determining the statute of limitations applicable to

17 any administrative or judicial action under section 106,

18 subparagraph (A), (B), or (D) of section 107(a)(4), or sec19 tion 113, or under any other Federal or State law or regu20 lation, for the recovery of costs, for contribution, or for

21 the investigation, cleanup, or remediation of any National

22 Priority List site.

23 ‘‘(2) The time period referred to in paragraph (1) is

24 the period beginning on the date that any person first files

25 a petition for the initiation of a binding allocation of re-
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1 sponsibility for that site and ending on the date that a

2 binding allocation of responsibility is issued.

3 ‘‘SEC. 510. VOLUNTARY SETTLEMENTS.

4 ‘‘Prior to the issuance of a binding allocation of re5 sponsibility decision, any group of potentially responsible

6 parties may submit a private allocation for the National

7 Priority List site (to be known as a ‘voluntary binding

8 allocation of responsibility’) to the allocation panel. If such

9 voluntary binding allocation of responsibility meets the fol10 lowing criteria, the allocation panel shall promptly adopt

11 it as the binding allocation of responsibility:

12 ‘‘(1) The voluntary binding allocation of respon13 sibility shall be a binding allocation of 100 percent

14 of past, present, and future recoverable response

15 costs at the site.

16 ‘‘(2) The voluntary binding allocation of respon17 sibility shall not allocate any costs or require18 ments—

19 ‘‘(A) to the orphan share, unless the

20 guardian agrees, in writing, to such allocation;

21 or

22 ‘‘(B) to any person who is not a signatory

23 to the voluntary binding allocation of respon24 sibility.
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1 ‘‘(3) Signatories to the voluntary binding alloca2 tion of responsibility shall be entitled to contribution

3 protection as specified in section 508(e). Such sig4 natories shall be prohibited from pursuing any cost

5 recovery action or contribution against any non-sig6 natory, but may seek additional recovery against

7 non-signatories based on a contract for insurance or

8 indemnification.

9 ‘‘(4) Signatories to the voluntary binding alloca10 tion of responsibility shall be entitled to enforce it in

11 the same manner as any binding allocation of re12 sponsibility final decision by the allocation panel.

13 ‘‘SEC. 511. NEW BINDING ALLOCATIONS OF RESPONSIBIL14 ITY.

15 ‘‘A binding allocation of responsibility shall constitute

16 a permanent determination of the assigned share of each

17 liable party and of the orphan share and, except for addi18 tions to the orphan share pursuant to section 508(d) and

19 judicially mandated changes pursuant to section 507(b),

20 the binding allocation of responsibility shall not be subject

21 to any change or revision for at least 5 years after the

22 date of the binding allocation of responsibility final deci23 sion. Thereafter a new binding allocation of responsibility

24 process shall be available only if the party requesting it

25 demonstrates that, due to new information not reasonably
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1 available during the first binding allocation of responsibil2 ity, a 35 percent or greater increase in total waste-in vol3 ume has been discovered. If such a request for a new bind4 ing allocation of responsibility is granted, the same rules

5 and procedures described for initial binding allocations of

6 responsibility apply to the new or revised binding alloca7 tion of responsibility. New binding allocations of respon8 sibility shall only apply to funds actually expended after

9 the effective date of the new binding allocation of respon10 sibility decision, with no credits for funds already ex11 pended. Subsequent new binding allocations of responsibil12 ity requests are prohibited until 5 years after the date of

13 issuance of the prior new binding allocation of responsibil14 ity.’’.

15 SEC. 111. SITE REDEVELOPMENT.

16 Section 107 of the Comprehensive Environmental Re17 sponse, Compensation, and Liability Act of 1980 (42

18 U.S.C. 9607), as amended by section 109, is further

19 amended by adding at the end the following:

20 ‘‘(s) SITE REDEVELOPMENT.—

21 ‘‘(1) EXEMPTION.—No person who is a quali22 fied redeveloper shall be liable under this title for

23 costs or damages with respect to the release of any

24 hazardous substance or the threat of any such re25 lease from any facility solely by reason of an agree-
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1 ment by such person to redevelop such facility after

2 a response action has been completed (as determined

3 by the President) at such facility.

4 ‘‘(2) QUALIFIED REDEVELOPER.—For purposes

5 of this subsection, the term ‘qualified redeveloper’

6 means a person who is not otherwise liable under

7 section 107 and did not cause or contribute to the

8 release or threat of release which necessitated the

9 response action referred to in paragraph (1).’’.

10 SEC. 112. LIABILITY OF RESPONSE ACTION CONTRACTORS.

11 (a) EXTENSION OF NEGLIGENCE STANDARD.—Sub12 section (a) of section 119 of the Comprehensive Environ13 mental Response, Compensation, and Liability Act of

14 1980 is amended—

15 (1) in paragraph (1) by striking out ‘‘title or

16 under any other Federal law’’ and inserting in lieu

17 thereof ‘‘title, under any other Federal law, or under

18 the law of any State or political subdivision of a

19 State’’; and

20 (2) by adding at the end of paragraph (2) the

21 following: ‘‘Such conduct shall be evaluated based on

22 the generally accepted standards and practices in ef23 fect at the time and place that the conduct

24 occurred.’’.
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1 (b) EXTENSION OF INDEMNIFICATION AUTHOR2 ITY.—Section 119(c) of such Act is amended by adding

3 at the end of paragraph (1) the following: ‘‘Any such

4 agreement may apply to claims for negligence arising

5 under Federal, State, or common law.’’.

6 (c) EXTENSION OF COVERAGE.—Section 119(e) of

7 such Act is amended in the text appearing after subpara8 graph (D)—

9 (1) by striking out ‘‘List, or any removal under

10 this Act,’’ and inserting in lieu thereof ‘‘List, any re11 moval under this Act, or any response action under

12 this Act at a facility using an alternative or innova13 tive technology,’’; and

14 (2) by inserting before the period the following:

15 ‘‘, or to undertake appropriate natural resource res16 toration actions necessary to protect and restore any

17 natural resources damaged by such release or threat18 ened release of a hazardous substance or pollutant

19 or contaminant’’.

20 (d) INDEMNIFICATION FOR THREATENED RE21 LEASES.—Section 119(c)(5) of such Act is amended in

22 subparagraph (A) by inserting ‘‘or threatened release’’

23 after ‘‘release’’ both places it appears.
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1 (e) CLARIFICATION OF LIABILITY.—Section 101 of

2 such Act, as amended by section 106, is further amended

3 by adding at the end of paragraph (20) the following:

4 ‘‘(F) The term ‘owner or operator’ does not in5 clude any person carrying out a written contract or

6 agreement with any Federal agency, any State (or

7 any political subdivision of a State), or any respon8 sible party to provide any response action or any

9 form of services or equipment ancillary to such re10 sponse action. Any such person shall not be consid11 ered to have caused or contributed to any release or

12 threatened release of, or to have arranged for dis13 posal or treatment of, or arranged with a trans14 porter for transport for disposal or treatment of, or

15 transported, hazardous substances or pollutants or

16 contaminants. This subparagraph shall not apply to

17 any person potentially responsible under section 106

18 or 107 other than those persons associated solely

19 with the provision of response action or any form of

20 ancillary services or equipment.’’.

21 (f) FEDERAL STATUTE OF REPOSE.—Section 119 of

22 such Act is further amended by adding at the end the fol23 lowing new subsection:

24 ‘‘(g) LIMITATION ON ACTIONS AGAINST RESPONSE

25 ACTION CONTRACTORS.—No action to recover for any in-
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1 jury to property, real or personal, or for bodily injury or

2 wrongful death, or any other expenses or costs arising out

3 of the performance of services under a response action

4 contract, nor any action for contribution or indemnity for

5 damages sustained as a result of such injury, shall be

6 brought against any response action contractor more than

7 6 years after the completion of work at any site under

8 such contract. The limitation prescribed in this subsection

9 shall not affect any right of indemnification that such re10 sponse action contractor may have under this section or

11 may acquire by written agreement with any party.’’.

12 TITLE II—FUNDING

13 SEC. 201. HAZARDOUS SUBSTANCE REVOLVING FUND.

14 (a) ESTABLISHMENT OF FUND.—There is estab15 lished in the Treasury of the United States a fund to be

16 known as the Hazardous Substance Revolving Fund (here17 inafter in this section referred to as the ‘‘Revolving

18 Fund’’), consisting of such amounts as may be—

19 (1) appropriated, credited, or transferred to the

20 Hazardous Substance Superfund; and

21 (2) credited or transferred to the Revolving

22 Fund.

23 (b) OFFSETTING COLLECTIONS.—For purposes of

24 the Congressional Budget Act of 1974 (2 U.S.C. 601 et

25 seq.) and part C of the Balanced Budget and Emergency
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1 Deficit Act of 1985 (2 U.S.C. 900 et seq.), all amounts

2 received in the Revolving Fund shall be treated as offset3 ting collections.

4 (c) USE OF REVOLVING FUND.—Amounts in the Re5 volving Fund shall be available, as provided in appropria6 tion Acts, only for purposes of making expenditures—

7 (1) to carry out the purposes of paragraphs (1)

8 and (2) of section 111(a) of the Comprehensive En9 vironmental Response, Compensation, and Liability

10 Act of 1980 (42 U.S.C. 9611(a));

11 (2) to carry out the purposes of paragraphs (3),

12 (4), (5), (6), (8), (9), and (11) of section 111(c) of

13 such Act;

14 (3) to carry out the purposes of section 111(m)

15 of such Act;

16 (4) for reimbursement as provided in section

17 107(n) of such Act (as added by section 102 of this

18 Act); and

19 (5) to carry out the purposes specified in title

20 V of such Act (as added by section 110 of this Act).

21 (d) INVESTMENT.—(1) It shall be the duty of the

22 Secretary of the Treasury to invest such portion of the

23 Revolving Fund as is not, in his judgment, required to

24 meet current withdrawals. Such investments may be made
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1 only in interest-bearing obligations of the United States.

2 For such purpose, such obligations may be acquired—

3 (A) on original issue at the issue price, or

4 (B) by purchase of outstanding obligations at

5 the market price.

6 (2) Any obligation acquired by the Revolving Fund

7 may be sold by the Secretary of the Treasury at the mar8 ket price.

9 (3) The interest on, and the proceeds from the sale

10 or redemption of, any obligation held in the Revolving

11 Fund shall be credited to and form a part of the Revolving

12 Fund.

13 (e) EFFECTIVE DATE.—This section shall take effect

14 on October 1, 1996.

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