I

103D CONGRESS

1ST SESSION H. R. 3624

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to establish a program for assigning shares of

liability to liable parties at Superfund sites, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 22, 1993

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

which was referred jointly to the Committees on Energy and Commerce

and Public Works and Transportation

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to establish a program for assigning shares of liability to liable parties

at Superfund sites, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

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

5 Reform Act’’.

6 SEC. 2. DEFINITIONS.

7 Section 101 of the Comprehensive Environmental Re8 sponse, Compensation, and Liability Act of 1980 (42
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1 U.S.C. 9601), is amended by adding at the end the

2 following:

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

4 means any person identified as potentially liable

5 under section 107, potentially responsible to perform

6 any response action under sections 104 or 106, or

7 potentially liable for contribution under section 113.

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

9 potentially responsible party who is a generator or

10 transporter who contributed only a minuscule

11 amount of hazardous substances to a National Pri12 ority List site, as determined by an allocation panel

13 under title V.

14 ‘‘(41) The term ‘de minimis party’ means a lia15 ble party whose assigned share of liability is deter16 mined to be 1.0 percent or less in a final binding al17 location of responsibility decision under title V.

18 ‘‘(42) The term ‘liable party’ means any poten19 tially responsible party determined by an allocation

20 panel or a court to be liable under section 107, re21 sponsible to perform any action under sections 104

22 or 106, or liable for contribution under section 113.

23 ‘‘(43) The term ‘assigned share’ means the per24 centage of liability assigned, in accordance with the

25 factors set forth in section 503(f)(2), to a liable
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1 party by an allocation panel in a binding allocation

2 of responsibility or by a court of law.

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

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

5 or whose assigned share has been subject to dis6 charge or limitation in bankruptcy, or who is other7 wise financially unable to pay all or part of its as8 signed share.

9 ‘‘(45) The term ‘creditor party’ means the Ad10 ministrator, a State, or any person who is deter11 mined to be a liable party with respect to a National

12 Priority List site and who incurs or has incurred

13 costs with respect to the site that are not inconsist14 ent with the National Contingency Plan.

15 ‘‘(46) The term ‘debtor party’ means the Haz16 ardous Substance Superfund and any person who is

17 determined to be a liable party with respect to a Na18 tional Priority List site.

19 ‘‘(47) The term ‘binding allocation of respon20 sibility’ means a final binding determination by an

21 allocation panel pursuant to title V.

22 ‘‘(48) The term ‘orphan share’ means the total

23 of the assigned shares of all orphan parties at a site.

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

25 ‘guardian’ means the person appointed by the Ad-
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1 ministrator to represent the Environmental Protec2 tion Agency in a binding allocation of responsibility

3 proceeding.

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

5 means any site or facility that the Administrator has

6 listed on, or proposed for listing on, the list estab7 lished pursuant to section 105(a)(8)(B).’’.

8 SEC. 3. ASSIGNMENT OF SHARES OF LIABILITY FOR COSTS

9 OF RESPONSE ACTIONS AT NATIONAL PRIOR10 ITY LIST SITES.

11 Section 107(a) of the Comprehensive Environmental

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

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

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

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

16 who accepts the results of the allocation of responsibility

17 process under title V or who successfully appeals the re18 sults of such process shall be liable only for its assigned

19 share of the costs incurred pursuant to subparagraphs

20 (A), (B), and (D) of this section. The orphan share of

21 a National Priority List site shall be paid out of the Haz22 ardous Substance Superfund or by a liable party who un23 successfully appeals a final binding allocation of respon24 sibility decision under section 507.’’.
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1 SEC. 4. ENFORCEMENT OF RESPONSE ACTIONS THROUGH

2 JOINT AND SEVERAL LIABILITY.

3 Section 107 of the Comprehensive Environmental Re4 sponse, Compensation, and Liability Act of 1980 (42

5 U.S.C. 9607) is amended by adding at the end the follow6 ing: 

7 ‘‘(n) JOINT AND SEVERAL LIABILITY OF PARTIES

8 WHO FAIL TO PERFORM RESPONSE ACTIONS.—In any

9 case in which no liable party or potentially responsible

10 party agrees to perform a response action at a National

11 Priority List site, or a liable party or potentially respon12 sible party agrees to perform a response action but the

13 party fails to perform such response action, as determined

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

15 located, the following provisions apply:

16 ‘‘(1) The party is considered to have not re17 solved its liability to the United States, notwith18 standing the party’s acceptance of the results of the

19 binding allocation of responsibility process under

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

21 of such process.

22 ‘‘(2) The party is subject to civil action under

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

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

25 the response action and all costs of the response ac26 tion with respect to the National Priority List site.
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1 ‘‘(o) PAYMENT OF CERTAIN RESPONSE COSTS BY

2 FUND.—A potentially responsible party who performs and

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

4 shall be reimbursed by the Hazardous Substance

5 Superfund.

6 ‘‘(p) AUTHORITY TO COLLECT RESPONSE COSTS

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

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

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

10 and may recover its response costs in accordance with that

11 section.’’.

12 SEC. 5. CLARIFICATION OF LIABILITY WITH RESPECT TO

13 RECYCLING TRANSACTIONS.

14 The Comprehensive Environmental Response, Com15 pensation, and Liability Act of 1980 is amended by adding

16 at the end of title I the following new section:

17 ‘‘SEC. 127. RECYCLING TRANSACTIONS.

18 ‘‘(a) LIABILITY CLARIFICATION.—A recycling trans19 action meeting the requirements of subsection (b) shall not

20 be construed as arrangement for the treatment or disposal

21 of a hazardous substance under subsection (a) of section

22 107.

23 ‘‘(b) RECYCLING TRANSACTION.—(1) For purposes

24 of subsection (a), a recycling transaction is a transaction

25 in which a material is being used or sold to make a new
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1 product, and the following conditions are met at the time

2 of the transaction:

3 ‘‘(A) The material being used in the transaction

4 meets a specification grade (hereinafter referred to

5 as a ‘specification grade secondary material’).

6 ‘‘(B) Such specification grade secondary mate7 rial is used to manufacture a new product and con8 tains elements necessary to manufacture such prod9 uct.

10 ‘‘(C) Such specification grade secondary mate11 rial competes with virgin material.

12 ‘‘(D) The production of the specification grade

13 secondary material results in a substantial amount

14 of the input material being available for use as a

15 feedstock to make a new product.

16 ‘‘(E) There is evidence of a market for the

17 specification grade secondary material.

18 ‘‘(F) The specification grade secondary material

19 does not include unnecessary hazardous substances

20 introduced during recycling.

21 ‘‘(G) The specification grade secondary material

22 consists primarily of one or more of the following:

23 metal, paper, plastic, glass, textiles, or rubber.

24 ‘‘(H) Effective after the promulgation of man25 agement standards under subsection (c), the second-
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1 ary materials are sold to a facility that meets the

2 management standards promulgated under sub3 section (c).

4 ‘‘(2) A recycling transaction does not include a trans5 action that leads to the burning of material, even for the

6 recovery of energy, or the use of material in a manner

7 determined by the Administrator to constitute a disposal.

8 ‘‘(c) MANAGEMENT STANDARDS.—Not later than 24

9 months after the date of enactment of the Superfund Li10 ability Reform Act, the Administrator shall promulgate

11 regulations containing management standards applicable

12 to persons which produce in a facility or transfer through

13 a facility specification grade secondary materials for use

14 as a feedstock to make a new product.’’.

15 SEC. 6. ESTABLISHMENT OF BINDING ALLOCATION OF RE16 SPONSIBILITY PROCESS.

17 The Comprehensive Environmental Response, Com18 pensation, and Liability Act of 1980 (42 U.S.C. 9601 et

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

20 title:

21 ‘‘TITLE V—BINDING ALLOCA22 TION OF RESPONSIBILITY

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

‘‘Sec. 502. Qualifications and powers of administrative law judges and allocation panels

‘‘Sec. 503. Specific rules and procedures.

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

documents.
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‘‘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) GENERAL.—The Administrator shall appoint

4 panels of administrative law judges to perform expedited

5 administrative proceedings, to be known as ‘binding allo6 cations of responsibility’, for purposes of determining the

7 liability of potentially responsible parties at National Pri8 ority List sites. Each such panel shall be composed of

9 three administrative law judges appointed by the Adminis10 trator under section 3105 of title 5, United States Code,

11 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 ‘‘(c) RELATIONSHIP TO NATURAL RESOURCES DAM17 AGE.—Binding allocations of responsibility shall not ad18 dress or affect the liability of any person with respect to

19 damage to natural resources under section 107(a)(4)(C).
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1 ‘‘SEC. 502. QUALIFICATIONS AND POWERS OF ADMINISTRA2 TIVE LAW JUDGES AND ALLOCATION PANELS.

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

4 may not be appointed to an allocation panel under section

5 501 unless the judge completes at least 40 hours of edu6 cation and training, as specified by the Administrator, in

7 the following subject areas:

8 ‘‘(1) The operation of this Act and the regula9 tions promulgating this Act.

10 ‘‘(2) The science of soil and groundwater con11 tamination and the technology for treating such con12 tamination.

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

14 have the power and authority to perform all functions nec15 essary to administer and perform the binding allocations

16 of responsibility, including the power to—

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

18 production of documents to any person;

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

20 concerned to provide all information relevant to a

21 binding allocation of responsibility, including the

22 production of copies of all documents and informa23 tion obtained pursuant to section 104(e) or pursuant

24 to similar State law;
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1 ‘‘(3) rule upon motions, requests, and offers of

2 proof, dispose of procedural requests, and issue all

3 necessary orders;

4 ‘‘(4) administer oaths and affirmations and

5 take affidavits;

6 ‘‘(5) examine witnesses and receive documen7 tary or other evidence;

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

9 parties as the allocation panel deems appropriate

10 and consistent with the expedited nature of the bind11 ing allocation of responsibility process;

12 ‘‘(7) admit or exclude evidence;

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

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

15 and the guardian of the Fund, to attend conferences

16 for the settlement or simplification of the issues or

17 the expedition of the proceedings;

18 ‘‘(10) require, at any time, that potentially re19 sponsible parties wishing to present similar legal or

20 factual arguments use a common spokesman or con21 solidated briefing for the presentation of such facts

22 and legal positions;

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

24 are necessary to conduct the binding allocation of re25 sponsibility, including secretarial and clerical serv-
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1 ices, investigative services, and computer information

2 and database management services;

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

4 documents associated with the binding allocation of

5 responsibility shall be maintained and made avail6 able to all parties to the binding allocation of re7 sponsibility in accordance with section 506; and

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

9 necessary for the maintenance of order and for the

10 efficient, fair, and impartial adjudication of issues

11 arising in the binding allocation of responsibility.

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

13 have the power of subpoena to collect information nec14 essary or appropriate for conducting the binding allocation

15 of responsibility or for otherwise implementing this sec16 tion. This authority shall include the power to compel the

17 attendance and testimony of witnesses and the production

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

19 other information that the allocation panel deems nec20 essary. Witnesses shall be paid the same fees and mileage

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

22 In the event of contumacy or failure or refusal of any per23 son to obey any such subpoena, any district court of the

24 United States in which venue is proper shall have jurisdic-
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1 tion to order any such person to comply with such

2 subpoena.

3 ‘‘(d) INFORMAL RULES OF EVIDENCE.—In conduct4 ing the binding allocation of responsibility, an allocation

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

6 but shall instead use such informal rules of evidence and

7 evidentiary procedures, such as those set forth at sections

8 22.22 and 22.23 of title 40 of the Code of Federal Regula9 tions, as will promote the expeditious completion of the

10 proceeding.

11 ‘‘(e) NATIONWIDE SERVICE OF PROCESS.—Any docu12 ment required to be served on a party under this title may

13 be served in any district where the person is found, re14 sides, transacts business, or has appointed an agent for

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

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

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

18 if the party is not represented by counsel.

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

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

21 ‘‘(1) IN GENERAL.—A binding allocation of re22 sponsibility with respect to a National Priority List

23 site shall be initiated by filing a petition with the Of24 fice of the Administrative Law Judges of the Envi25 ronmental Protection Agency. Such a petition may
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1 be filed by the Administrator or the State where the

2 National Priority List site is located.

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

4 a State shall file a petition to initiate a binding allo5 cation of responsibility at a National Priority List

6 site not later than 30 days after initiating the reme7 dial investigation study (or its equivalent) for the

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

9 than 30 days after initiation of the remedial inves10 tigation study (or its equivalent), all governmental

11 response costs incurred or contracted for prior to the

12 filing of the petition shall be allocated entirely to the

13 orphan share.

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

15 initiate the binding allocation of responsibility pro16 ceeding shall identify the petitioner and shall include

17 all relevant information reasonably available con18 cerning—

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

20 status, and environmental condition of the Na21 tional Priority List site;

22 ‘‘(B) the identity and address of each per23 son believed by the petitioner to be a liable

24 party and the basis for such belief;
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1 ‘‘(C) any proposed questions and document

2 requests that the petitioner believes should be

3 included in the allocation panel’s first informa4 tion request and document request; and

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

6 that the petitioner believes may be raised in the

7 binding allocation of responsibility.

8 ‘‘(4) SERVICE.—A copy of the petition shall be

9 served by mail, publication, or otherwise on the Ad10 ministrator, the State where the site is located, and

11 each potentially responsible party identified in the

12 petition. Within 20 days after the filing of the peti13 tion, the Hearing Clerk of the Office of Administra14 tive Law Judges shall cause a notice of the filing of

15 the petition, together with a brief description of the

16 site and a list of all potentially responsible parties

17 identified in the petition, to be published in the Fed18 eral Register. The petitioner shall cause a similar

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

20 newspaper of general circulation within the State

21 where the site is located.

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

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

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

25 investigation and search, under section 104(e) or
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1 any other relevant Federal or State statutory or reg2 ulatory authority, for all potentially responsible par3 ties. All information, answers, and documents dis4 covered in such investigation or search and relevant

5 to any aspect of the binding allocation of responsibil6 ity shall, simultaneously with the filing of the peti7 tion, be filed in the document repository for the

8 binding allocation of responsibility. If the allocation

9 panel determines that the Administrator or the

10 State failed to conduct a diligent search for poten11 tially responsible parties in accordance with this

12 paragraph, and if another party performs additional

13 investigations and successfully identifies additional

14 potentially responsible parties, then the allocation

15 panel may, in its discretion, credit all or part of the

16 costs of such additional search against the assigned

17 share, if any, of the party that performed such addi18 tional investigation or search.

19 ‘‘(6) APPOINTMENT OF GUARDIAN FOR THE

20 HAZARDOUS SUBSTANCE SUPERFUND.—Any petition

21 filed by the Administrator shall include the name

22 and address of the person appointed to serve as the

23 guardian for the Hazardous Substance Superfund

24 for that binding allocation of responsibility. In any

25 case where a petition is initiated by a State, the Ad-
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1 ministrator shall notify the Hearing Clerk of the Of2 fice of the Administrative Law Judges within 10

3 days after the petition is filed of the name and ad4 dress of the person designated by the Administrator

5 as the guardian for the Hazardous Substance

6 Superfund. If the Environmental Protection Agency

7 is also a potentially responsible party or a liable

8 party with respect to the National Priority List site

9 concerned, then the agency may participate in the

10 binding allocation of responsibility with regard to

11 such liability, but the person designated as the

12 guardian shall not represent the agency with regard

13 to the agency’s status as a potentially responsible

14 party or liable party.

15 ‘‘(b) IDENTIFICATION OF POTENTIALLY RESPON16 SIBLE PARTIES.—

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

18 30 days after receipt of a copy of a petition or after

19 publication in the Federal Register of a notice of the

20 filing of an initial petition (whichever is earlier)

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

22 any potentially responsible party may file an initial

23 statement setting forth—

24 ‘‘(i) any defenses to liability;
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1 ‘‘(ii) any equitable considerations pertain2 ing to any party’s potential liability;

3 ‘‘(iii) any additional facts and issues rel4 evant to the binding allocation of responsibility;

5 ‘‘(iv) any proposed questions or document

6 requests that the person filing the statement

7 believes should be included in the first informa8 tion request issued by the allocation panel; and

9 ‘‘(v) the name and address of any addi10 tional person or persons that the person filing

11 the statement believes may be a liable party at

12 the National Priority List site and all reason13 ably available information as to the relationship

14 between each proposed additional party and the

15 site.

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

17 the Hearing Clerk and served on all parties named

18 in the petition and named in such initial statement.

19 ‘‘(2) INFORMATION REQUESTS AND REQUESTS

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

21 than 30 days after the filing of the petition, the allo22 cation panel shall mail initial information requests

23 and requests for production of documents to the

24 guardian, the State, all potentially responsible par25 ties identified in the petition, and all additional par-
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1 ties identified in the initial statements. Responses to

2 such requests shall be made in accordance with this

3 paragraph and section 504.

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

5 any information request or request for production of

6 documents, such person shall file a response with the

7 Hearing Clerk. For good cause shown, the allocation

8 panel may grant a single 45-day extension for the

9 filing of any such response. Each party shall have a

10 continuing obligation to supplement its response

11 upon the receipt of additional relevant information.

12 ‘‘(3) ADDITIONAL NOMINATIONS OF POTEN13 TIALLY RESPONSIBLE PARTIES.—The parties may

14 identify and nominate additional potentially respon15 sible parties until the expiration of the 120-day pe16 riod beginning on the date of filing of the petition.

17 Any nominations received by the Hearing Clerk after

18 that period may be disregarded by the allocation

19 panel. Each nomination shall include all reasonably

20 available information supporting the assertion that

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

22 the earliest possible time. Any party making an ad23 ditional nomination shall serve notice of such nomi24 nation on the nominated party and file a copy of

25 such notice with the Hearing Clerk. The nominated
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1 party may file its initial response not later than 30

2 days after receipt of the notice. The allocation panel

3 may issue information requests and requests for the

4 production of documents to any nominated party at

5 any time.

6 ‘‘(4) INITIAL LIST OF ALL POTENTIALLY RE7 SPONSIBLE PARTIES.—Within six months after the

8 filing of the petition, the allocation panel shall cause

9 to be published in the Federal Register and a news10 paper of general circulation in the State where the

11 site is located a list identifying all parties that the

12 allocation panel preliminarily deems to be potentially

13 responsible parties with respect to the site. The allo14 cation panel also shall attempt to mail a copy of the

15 list to all parties to the binding allocation of respon16 sibility. The allocation panel shall reject the nomina17 tion of any person as a liable party or potentially re18 sponsible party if it finds that the nomination al19 leges no connection between the nominated person

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

21 on its own motion or the motion of a potentially re22 sponsible party, additional potentially responsible

23 parties at any time before issuance of the final bind24 ing allocation of responsibility.
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1 ‘‘(c) DE MICROMIS SETTLEMENTS.—(1) Not later

2 than six months after the filing of the petition, the alloca3 tion panel shall issue a list identifying all potentially re4 sponsible parties that the allocation panel determines con5 tributed only a minuscule amount of hazardous substances

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

7 micromis parties’. The allocation panel shall base the de8 termination on an evaluation of all evidence received at

9 the time of the issuance of the list with respect to the

10 amount of hazardous substances contributed by poten11 tially responsible parties.

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

13 micromis party of its inclusion on the list issued under

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

15 ‘‘(3) Any de micromis party may resolve its liability

16 to the United States by paying $1,000 by certified check

17 to the Hazardous Substance Superfund not later than 60

18 days after receiving notification under paragraph (2). A

19 copy of the canceled certified check is conclusive proof of

20 payment. Such settlement may not be reopened after pay21 ment is made, except on grounds of fraud.

22 ‘‘(4) De micromis parties that make the settlement

23 payment referred to in paragraph (3) shall have no other

24 liability, under Federal or State law, to any person for
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1 response actions or for any past, present, or future costs

2 incurred at the site.

3 ‘‘(5) All proceeds from de micromis settlements under

4 this subsection shall be earmarked in the Hazardous Sub5 stance Superfund to be used specifically for costs of re6 sponse action at the site concerned. Any amounts of such

7 settlements remaining in the Superfund after completion

8 of the response action at the site concerned shall be avail9 able in the Superfund for general use.

10 ‘‘(6) Not later than three years after the date of the

11 enactment of this title, the Administrator shall submit to

12 Congress a study that estimates the average cleanup cost

13 at National Priority List sites for purposes of determining

14 whether the $1,000 de micromis settlement amount under

15 this section needs adjustment.

16 ‘‘(d) IDENTIFICATION OF LIABLE PARTIES AND DE17 TERMINATION OF ASSIGNED SHARES.—

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

19 Unless the allocation panel determines that it would

20 unduly delay the process, the guardian, the State,

21 and any potentially responsible party may file an al22 location advocacy paper with the Hearing Clerk not

23 later than 30 days after the publication of the initial

24 list of potentially responsible parties in the Federal

25 Register. Any such allocation advocacy paper, which
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1 shall be served on the guardian, the State, and each

2 potentially responsible party, shall be a concise

3 statement, together with citations to relevant sup4 porting evidence and law, of the party’s position

5 with regard to—

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

7 should be used in determining whether a poten8 tially responsible party at the site is a liable

9 party; and

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

11 subsection (f)(2) should be applied to determine

12 the assigned share of each liable party.

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

14 days after the publication of the initial list of poten15 tially responsible parties in the Federal Register, the

16 allocation panel shall issue its first allocation report

17 tentatively specifying the criteria to be used in iden18 tifying the liable parties, tentatively specifying how

19 the allocation factors will be applied to the case to

20 determine assigned shares, and setting forth the

21 process and schedule that will be used to allow par22 ties the opportunity to present written evidence and

23 argument regarding how such criteria and factors

24 apply to the case. The first allocation report shall be
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1 served on the guardian, on the State, and on each

2 potentially responsible party.

3 ‘‘(3) SECOND ALLOCATION ADVOCACY PAPER.—

4 The guardian, the State, and each potentially re5 sponsible party may file an allocation advocacy

6 paper with the Hearing Clerk not later than 60 days

7 after receipt of the first allocation report. The allo8 cation advocacy paper, which shall be served on the

9 guardian, the State, and each potentially responsible

10 party, shall be the primary opportunity for the

11 guardian, the State, and each potentially responsible

12 party to present evidence and argument regarding

13 how the liability criteria and the allocation factors

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

15 the person filing the paper, how those criteria and

16 factors should be applied to other potentially respon17 sible parties at the site.

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

19 party may request a hearing on the determination

20 that such party is a liable party and on the deter21 mination of its assigned share. The allocation panel

22 may hold such a hearing if the allocation panel de23 termines that it would expedite or materially assist

24 in the resolution of disputed factual or legal issues.

25 The allocation panel shall have broad discretion in
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1 managing the conduct of any such hearing, including

2 limiting the time available to each party and requir3 ing that parties with generally similar interests be

4 represented by a single spokesperson or common

5 counsel. The allocation panel may allow or prohibit

6 the cross-examination of witnesses.

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

8 present written evidence or argument on whether it,

9 or any other potentially responsible party, is a liable

10 party and on the appropriate assigned share for it11 self or any other potentially responsible party. A po12 tentially responsible party shall be deemed a liable

13 party if the allocation panel determines that the pre14 ponderance of the evidence supports the conclusion

15 that such party is liable.

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

17 the submission of advocacy papers and at the con18 clusion of any hearings, the allocation panel shall

19 issue a second allocation report identifying all liable

20 parties at the site and specifying the assigned share

21 of each liable party. If the second allocation report

22 changes or expands the list of potentially responsible

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

24 allocation report, then the second report shall so

25 specify and provide a brief explanation of any such
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1 change. The second allocation report shall be served

2 on the guardian, the State, all potentially responsible

3 parties, and all liable parties.

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

5 ‘‘(1) ORPHAN SHARE ADVOCACY PAPER.—Un6 less the allocation panel determines that it would un7 duly delay the process, the guardian, the State, and

8 each liable party may file an orphan share advocacy

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

10 day period beginning on the date of issuance of the

11 second allocation report. The orphan share advocacy

12 paper shall be the primary opportunity for the

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

14 written evidence and argument as to which liable

15 parties are orphan parties whose assigned share

16 should, in whole or in part, be assigned to the or17 phan share.

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

19 expiration of the 30-day period referred to in para20 graph (1), the allocation panel shall issue an orphan

21 share allocation report identifying the orphan share.

22 The orphan share report shall be served on the

23 guardian, the State, all potentially responsible par24 ties, and all liable parties.
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1 ‘‘(f) DETERMINATION OF NONLIABLE PARTIES.—(1)

2 At any time during the period beginning six months after

3 the filing of the petition and ending 18 months after the

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

5 identifying all potentially responsible parties that the allo6 cation panel determines did not contribute any amount of

7 hazardous substances to the National Priority List site.

8 The allocation panel shall base the determination on an

9 evaluation of all evidence received at the time of the issu10 ance of the list with respect to the amount of hazardous

11 substances contributed by potentially responsible parties.

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

13 party of its inclusion on the list issued under paragraph

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

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

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

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

18 at the site.

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 decision shall include a

2 list of all potentially responsible parties, a list of all

3 liable parties and the assigned share for each (in4 cluding all de minimis parties as determined under

5 paragraph (3)), a list of all orphan parties and the

6 portion of the assigned share of each orphan party

7 that is assigned to the orphan share, and the total

8 orphan share. Where an orphan party is able to pay

9 only a portion of its assigned share, the allocation

10 panel shall to the orphan share the portion of the

11 assigned share that the party is unable to pay and

12 require the party to pay the remainder. The final

13 BAR decision shall provide a concise explanation of

14 the basis for the decision. The decision may consist,

15 in whole or in part, of a compilation of the first allo16 cation report, the second allocation report, and the

17 orphan share report.

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

19 later than 18 months after the date of publication

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

21 a binding allocation of responsibility has been filed,

22 except that, in a case of exceptional complexity, the

23 final decision shall be issued not later than 24

24 months after such date.
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•HR 3624 IH

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

2 panel shall determine the assigned share of each lia3 ble party based on the following factors:

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

5 contribution to a discharge, release, or disposal

6 of a hazardous substance can be distinguished.

7 ‘‘(B) The amount of hazardous substances

8 contributed by the liable party at the site con9 cerned, compared to the total amount of haz10 ardous substances at that site.

11 ‘‘(C) The degree of toxicity of the hazard12 ous substance contributed by the liable party.

13 ‘‘(D) The degree of involvement by the lia14 ble party in the generation, transportation,

15 treatment, storage, or disposal of the hazardous

16 substance.

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

18 liable party with respect to the hazardous sub19 stance concerned, taking into account the char20 acteristics of such hazardous substance.

21 ‘‘(F) The degree of cooperation by the lia22 ble party with Federal, State, or local officials

23 to prevent any harm to the public health or the

24 environment.
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•HR 3624 IH

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

2 liability and the appropriate share of the liable

3 party.

4 ‘‘(H) Any other equitable factors deemed

5 appropriate.

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

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

8 issuance of the final BAR decision, the allocation

9 panel shall issue a list identifying all potentially re10 sponsible parties that the allocation panel deter11 mines contributed only 1.0 percent or less of the

12 total quantity of hazardous substances present at

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

14 minimis parties’.

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

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

17 de minimis parties under subparagraph (A), which18 ever is earlier, the Administrator shall make a firm

19 written offer of settlement to all de minimis parties.

20 The amount of the settlement offer for a de minimis

21 party shall be based on the Environmental Protec22 tion Agency’s estimate of the total cleanup cost at

23 the site multiplied by the de minimis party’s allo24 cated share as determined by the allocation panel

25 and increased by a reasonable premium (expressed
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•HR 3624 IH

1 as a percentage) to reflect the benefit of an early

2 and complete resolution of liability. All settlement

3 offers by the Administrator to de minimis parties at

4 the same site shall be based on the same estimate

5 of cleanup costs and the same premium percentage.

6 The settlement offer under this subparagraph is not

7 subject to judicial review.

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

9 a settlement offer, but any acceptance of the offer

10 must be made within 60 days after receipt of the

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

12 resolve its liability to the United States by paying

13 the amount of the offer to the Hazardous Substance

14 Superfund. Such settlement may not be reopened

15 after payment is made, except on grounds of fraud.

16 ‘‘(D) De minimis parties that accept the settle17 ment offer and pay the amount of the offer shall

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

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

20 present, or future costs incurred at the site.

21 (E) All proceeds from de minimis settlements

22 under this paragraph that represent the allocated

23 shares of de minimis parties at a site shall be paid

24 by the Administrator directly to the person perform25 ing the response action at the site. All proceeds from
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1 de minimis settlements under this paragraph that

2 represent premiums paid by de minimis parties at

3 the site shall be earmarked in the Hazardous Sub4 stance Superfund to be used specifically for costs of

5 response action at the site. Any amounts of such set6 tlements remaining in the Superfund after comple7 tion of the response action shall be available in the

8 Superfund for general use.

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

10 allocation of responsibility decision shall be served

11 on the guardian, the State, and all liable parties.

12 The Hearing Clerk shall cause a notice of the bind13 ing allocation of responsibility decision to be pub14 lished in the Federal Register and in a newspaper of

15 general publication in the State where the site is

16 located.

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

18 of responsibility decision shall be binding as to all

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

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

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

22 binding allocation of responsibility decision shall be

23 binding on all persons, including, without limitation,

24 the United States, any affected State or local gov25 ernmental agency or Indian Tribe, any alleged or
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1 nominated potentially responsible party (regardless

2 of whether such party participates in the binding al3 location of responsibility), and the public.

4 ‘‘(6) EFFECT ON OTHER PROCEEDINGS.—A de5 termination that a person is a liable party under a

6 binding allocation of responsibility proceeding is ap7 plicable only with respect to liability being assigned

8 in the proceeding and not with respect to liability

9 being determined in any other criminal, civil, or ad10 ministrative proceeding.

11 ‘‘SEC. 504. DUTY TO ANSWER INFORMATION REQUESTS AND

12 REQUESTS FOR PRODUCTION OF DOCU13 MENTS.

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

15 any information request or request for production of docu16 ments from the allocation panel during a binding alloca17 tion of responsibility must provide full and timely re18 sponses to the request.

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

20 information requests and requests for production of docu21 ments shall include a certification by a responsible rep22 resentative who meets the criteria established in section

23 270.11(a) of title 40 of the Code of Federal Regulations

24 that the answers—
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1 ‘‘(1) are true and correct to the best of their

2 knowledge;

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

4 of records in the possession or control of the person

5 to whom the request was directed;

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

7 current and former officers, directors, employees,

8 and agents of the person to whom the request was

9 directed;

10 ‘‘(4) accurately reflect information obtained in

11 the course of conducting such search and such

12 inquiry;

13 ‘‘(5) that the person executing the certification

14 understands that there is a duty to supplement any

15 such answers if, during the binding allocation of re16 sponsibility, any significant additional, new, or dif17 ferent information becomes known or available to

18 the answerer; and

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

20 understands that there are significant penalties for

21 submitting false information, including the possibil22 ity of fine and imprisonment for knowing violations.

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

24 sanction, any person who fails to answer an information

25 request or request for production of documents, and who
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1 is determined to be a liable party, shall be assigned a as2 signed share of up to 500 percent of whatever its assigned

3 share would otherwise have been, or up to 50 percent of

4 the total liability at the site, whichever is greater. If this

5 results in a binding allocation of responsibility that allo6 cates more than 100 percent of the total liability, then

7 the excess shall be deposited into the Hazardous Sub8 stance Superfund.

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

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

11 submit a complete and timely answer to an allocation pan12 el’s information request or request for production of docu13 ments or other discovery request, or who submits a re14 sponse that lacks the certification required under section

15 504(b), or who makes any false or misleading material

16 statement or representation in any submission to the allo17 cation panel during the binding allocation of responsibility

18 process, including statements or representations in con19 nection with the nomination of another potentially respon20 sible party, shall be subject to civil penalties of up to

21 $10,000 per day of violation. The violation shall be

22 deemed a continuing one until such time as the request

23 is answered or the necessary certification is submitted or

24 the false or misleading statement or representation is cor25 rected. Such penalties may be assessed by the President
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1 in accordance with section 109 or by any other party in

2 a citizen suit brought under section 310. A prevailing

3 plaintiff in such a citizen suit shall be awarded its attor4 neys fees and up to 50 percent of the penalty imposed

5 by the court.

6 ‘‘(b) CRIMINAL PENALTIES.—Any person who know7 ingly makes any false material statement or representation

8 in the response to an allocation panel’s information re9 quest or request for the production of documents or other

10 discovery request, or in any other submission to the alloca11 tion panel during the binding allocation of responsibility,

12 including statements or representations in connection with

13 the nomination of another potentially responsible party,

14 may be fined under title 18, United States Code, impris15 oned for not more than 2 years, or both.

16 ‘‘SEC. 506. DOCUMENT REPOSITORY; CONFIDENTIALITY; NO

17 WAIVER.

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

19 shall establish and maintain a document repository where

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

21 reports, answers to information requests and requests for

22 production of documents by the allocation panel, answers

23 to Federal or State information requests or requests for

24 the production of documents issued prior to the filing of

25 the petition, produced documents, and all other similar
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•HR 3624 IH

1 material shall be maintained and organized. The docu2 ments and information in the document repository shall

3 be available only to the parties to the binding allocation

4 of responsibility for review and copying at their own ex5 pense, subject only to the confidentiality provisions of sub6 section (b). All responses to any information request or

7 request for production of documents by the allocation

8 panel shall be filed with the clerk for the document reposi9 tory and need not be served on other potentially respon10 sible parties, the State, or the guardian.

11 ‘‘(b) CONFIDENTIALITY.—(1) All pleadings, docu12 ments, and materials submitted to the allocation panel or

13 placed in the document repository, together with the

14 record of any depositions or testimony adduced during the

15 binding allocation of responsibility, shall be confidential

16 and shall not be subject to release under section 552 of

17 title 5, United States Code (the Freedom of Information

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

19 allocation of responsibility proceeding shall maintain such

20 pleadings, documents, and materials, together with the

21 record of any depositions or testimony adduced during the

22 binding allocation of responsibility, as confidential. Such

23 material shall not be discoverable or admissible in any

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

25 legislative proceeding of any kind whatsoever, except—
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1 ‘‘(A) to the extent necessary to collect or other2 wise enforce in court the assigned share of a liable

3 party as determined by the binding allocation of

4 responsibility;

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

6 binding allocation of responsibility;

7 ‘‘(C) in any new binding allocation of respon8 sibility proceeding concerning the same site; and

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

10 involving a different site where the allocation panel

11 determines that the sites are related and that speci12 fied documents from the first binding allocation of

13 responsibility could materially assist the second

14 binding allocation of responsibility.

15 ‘‘(2) Notwithstanding paragraph (1)(D), if the origi16 nal of any document or material submitted to the alloca17 tion panel or placed in the document repository during the

18 binding allocation of responsibility was, while in the pos19 session of the party which provided it, otherwise discover20 able or admissible, then such original document, if subse21 quently sought from such party, shall remain discoverable

22 or admissible. If a fact covered in any deposition or testi23 mony adduced during the binding allocation of responsibil24 ity was, in the knowledge of the witness or deponent, oth25 erwise discoverable or admissible, then such testimony, if
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1 subsequently sought from such other party, shall remain

2 discoverable or admissible.

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

4 documents or information pursuant to the binding alloca5 tion of responsibility proceeding shall not be deemed to

6 be a waiver of any privilege, applicable to the original doc7 ument or fact, under any Federal or State law, regulation,

8 or rule of discovery or evidence .

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

10 binding allocation of responsibility receives any request for

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

12 any depositions or testimony adduced in a binding alloca13 tion of responsibility, such party shall promptly notify the

14 person who originally submitted such item and shall pro15 vide such submitting person the opportunity to assert and

16 defend the confidentiality of such item. No party to the

17 binding allocation of responsibility shall release or provide

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

19 record of any depositions or testimony adduced therein,

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

21 responsibility, except in compliance with an order from a

22 court.

23 ‘‘(e) CIVIL PENALTY FOR VIOLATION OF CONFIDEN24 TIALITY REQUIREMENTS.—Any person who fails to main25 tain the confidentiality of any pleadings, documents, or
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•HR 3624 IH

1 materials, or the record of any deposition or testimony ad2 duced during the binding allocation of responsibility, or

3 who releases any such information in violation of this sec4 tion, shall be subject to a civil penalty of up to $25,000

5 per violation. Such a penalty may be assessed by the Presi6 dent in accordance with section 109 or by any other party

7 in a citizen suit brought under section 310. A prevailing

8 plaintiff in such a citizen suit shall be awarded its attor9 neys fees and up to 50 percent of the penalty imposed

10 by the court.

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

12 ‘‘(a) FINAL AGENCY ACTION.—The binding alloca13 tion of responsibility decision of the allocation panel shall

14 constitute final agency action pursuant to section 706 of

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

16 Administrator in situations of fraud or gross misconduct.

17 ‘‘(b) JUDICIAL REVIEW.—

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

19 shall have jurisdiction to review, modify, or enjoin

20 any aspect of any binding allocation of responsibility

21 proceeding except as expressly set forth in this sub22 section. No aspect of any action, decision, ruling, or

23 determination by an allocation panel in any binding

24 allocation of responsibility proceeding shall be sub25 ject to administrative or judicial review in any Fed-
41

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1 eral or State court until after the final binding allo2 cation of responsibility decision (in this subsection

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

4 the allocation panel. Thereafter the Administrator,

5 the guardian, the State, or any person determined

6 by the allocation panel to be a liable party may ob7 tain judicial review of a final BAR decision by filing

8 a petition for review with the United States Court

9 of Appeals for the Circuit in which the facility is lo10 cated or for the District of Columbia.

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

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

13 final BAR decision by the allocation panel. The peti14 tion shall set forth either the specific assigned share

15 of liability that the petitioner believes should have

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

17 by the guardian, the assigned share that the guard18 ian believes should have been assigned to the orphan

19 share) in the binding allocation of responsibility, or

20 stating specifically that the petitioner believes it

21 should not have been found to have any liability at

22 all.

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

24 BAR decision shall be conducted on the administra25 tive record, which shall include all materials relating
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1 to the issues raised on appeal by the petitioner that

2 are contained in the document repository described

3 in section 506(a). The court shall set aside the bind4 ing allocation of responsibility only if it is found to

5 be arbitrary, capricious, an abuse of discretion, or

6 contrary to constitutional right, power, privilege, or

7 immunity.

8 ‘‘(4) PAYMENT DURING PENDENCY OF RE9 VIEW.—During the pendency of a petition for review

10 under this section, the petitioner shall pay any de11 mand notices rendered for its assigned share in ac12 cordance with the binding allocation of responsibility

13 decision, subject to later refund if the petitioner pre14 vails in the litigation.

15 ‘‘(5) LIABILITY OF SUCCESSFUL PETITIONER.—

16 If the petitioner is a liable party and the court

17 adopts the assigned share proposed by the peti18 tioner, then the difference between that share and

19 the share originally assigned to the petitioner shall

20 be added to the orphan share. If the petitioner is the

21 guardian and the court adopts the orphan share pro22 posed by the petitioner, then the matter shall be re23 manded to the allocation panel for the issuance, as

24 soon as possible, of a revised binding allocation of
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1 responsibility decision in accordance with the deci2 sion of the court.

3 ‘‘(6) LIABILITY OF UNSUCCESSFUL PETI4 TIONER.—(A) In the case of a petitioner who is a

5 liable party petitioning for a change in the petition6 er’s assigned share, and the court does not adopt the

7 assigned share proposed by the petitioner, the fol8 lowing provisions apply:

9 ‘‘(i) The petitioner shall reimburse all

10 other parties that participated in the appeal for

11 the actual attorneys’ fees and costs that they

12 incurred in defending the binding allocation of

13 responsibility decision.

14 ‘‘(ii) The petitioner is considered to have

15 not resolved its liability to the United States

16 and is subject to civil action under section 106,

17 107(a), and 113 for the following response

18 costs with respect to the National Priority List

19 site concerned:

20 ‘‘(I) The assigned share of the peti21 tioner, as determined in the final BAR de22 cision, plus

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

24 ‘‘(iii) The petitioner is subject to claims for

25 contribution from other unsuccessful petitioners
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1 with respect to the National Priority List site

2 concerned.

3 ‘‘(iv) The petitioner may make claims for

4 contribution against other unsuccessful petition5 ers with respect to the National Priority List

6 site concerned.

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

8 party petitioning for a determination that the peti9 tioner is not liable with respect to the site concerned

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

11 a successor to, or a parent or subsidiary of, a com12 pany which the petitioner believes should be assigned

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

14 the petitioner is liable for its assigned share as de15 termined in the final BAR decision.

16 ‘‘SEC. 508. COLLECTION, ENFORCEMENT, AND IMPLEMEN17 TATION.

18 ‘‘(a) COLLECTION.—

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

20 binding allocation of responsibility decision is made

21 with respect to a National Priority List site, any

22 creditor party may, in accordance with paragraph

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

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

25 a liable party, that party’s assigned share, as
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1 determined under the binding allocation of re2 sponsibility.

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

4 is the Hazardous Substance Superfund, the or5 phan share, as determined under the binding al6 location of responsibility.

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

8 either a liable party or the Hazardous Sub9 stance Superfund, any attorneys’ fees incurred

10 by the creditor party in a judicial action seeking

11 to recover costs from the debtor party.

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

13 by a creditor party from a debtor party shall be car14 ried out in accordance with the following provisions:

15 ‘‘(A) The creditor party shall file a cer16 tified copy of the final decision of the binding

17 allocation of responsibility in the United States

18 District Court for the district in which the site

19 is located.

20 ‘‘(B) The creditor party shall file a verified

21 statement with the same court specifying the

22 actions taken and the costs incurred by the

23 creditor party, and stating that such actions

24 and costs are not inconsistent with the National

25 Contingency Plan.
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1 ‘‘(C) The creditor party shall serve a de2 mand notice to each debtor party against whom

3 enforcement is sought and shall deliver a copy

4 of each such notice to the Administrator and

5 the State in which the site is located. The de6 mand notice shall specify the total amount of

7 costs covered by the notice, state a demand

8 amount (consisting of the debtor party’s as9 signed share or, with regard to the Fund, the

10 orphan share), and demand that the debtor

11 party pay such demand amount within 30 days

12 after receipt of the notice. A copy of the de13 mand notice shall be filed with the United

14 States District Court for the district in which

15 the site is located.

16 ‘‘(D) With respect to any response actions

17 or expenditures of a continuing nature, verified

18 statements and demand notices shall be filed

19 with the court and delivered to the debtor par20 ties and the guardian quarterly.

21 ‘‘(E) Where several liable parties, or a lia22 ble party and the Administrator or the State,

23 each take actions or incur costs not inconsistent

24 with the National Contingency Plan, different

25 demand notices may be issued concurrently.
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1 ‘‘(b) PENALTIES AND DAMAGES.—Except in the case

2 of a challenge to collection duly filed in accordance with

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

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

5 specified in a demand notice within 30 days after receipt

6 of the notice, such party shall be liable for the interest

7 thereon, civil penalties of up to $10,000 per day, and dam8 ages of up to an amount equal to 3 times the sum specified

9 in the demand notice. In the case of the orphan share,

10 if the Hazardous Substance Superfund fails to pay the

11 sum specified in a demand notice within 30 days after re12 ceipt of the notice, the Fund shall be liable for interest

13 thereon and damages of up to the amount equal to 2 times

14 the sum specified in the demand notice.

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

16 be no administrative or judicial review of any aspect of

17 a demand notice filed and delivered pursuant to subsection

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

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

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

21 a petition with the allocation panel that issued the binding

22 allocation of responsibility decision contending that the

23 costs reflected in the demand notice were incurred for ac24 tions inconsistent with the National Contingency Plan. If

25 such a petition is filed, the allocation panel shall conduct
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1 an expedited review of the matter. The review shall be lim2 ited solely to the issue of the alleged inconsistency of the

3 response actions and costs with the National Contingency

4 Plan. The person challenging the demand notice shall have

5 the burden of proof that such actions and the claimed

6 costs are inconsistent with the National Contingency Plan.

7 The allocation panel’s decision shall not be subject to judi8 cial review. Payment need not be made, and no interest

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

10 ‘‘(d) SUBSEQUENT ADDITIONS TO ORPHAN

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

12 whether by the Federal or State government or by any

13 other creditor party, against a liable party results in a ju14 dicial or administrative determination that such liable

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

16 will be added to the orphan share amount and will be re17 coverable from the Hazardous Substance Superfund.

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

19 that pay their assigned share and comply with the binding

20 allocation of responsibility decision shall have no other li21 ability, under Federal or State law, to any person for costs

22 incurred at the site, except that the binding allocation of

23 responsibility decision shall not affect any contract for in24 surance or indemnification.
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1 ‘‘SEC. 509. TRANSITION PROVISIONS.

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

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

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

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

6 Federal or State law or regulation, for the recovery of re7 sponse costs, contribution, or performance of response ac8 tions regarding any National Priority List site until 90

9 days after a final binding allocation of responsibility is

10 issued.

11 ‘‘(b) EXCEPTIONS.—Subsection (a) is subject to only

12 the following exceptions:

13 ‘‘(1) ADMINISTRATIVE ORDERS FOR EMER14 GENCY REMOVAL ACTIONS.—The President may

15 issue an order under section 106, prior to the issu16 ance of a final binding allocation of responsibility, if

17 the order is limited to those actions required to pro18 tect human health and the environment pending the

19 issuance of the final binding allocation of respon20 sibility decision.

21 ‘‘(2) CONTINUATION OF PENDING RESPONSE

22 ACTIONS.—In any case where, as of the date of en23 actment of this title, the Administrator or a State

24 has already issued a binding contract for the per25 formance of a remedial investigation/feasibility study

26 or has issued an administrative order or executed a
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1 consent decree for the performance of any response

2 action, the binding allocation of responsibility proc3 ess shall not affect the timing or manner of imple4 mentation of such response actions.

5 ‘‘(c) STAY OF EXISTING ACTIONS.—

6 ‘‘(1) STAY OF PENDING ENFORCEMENT AC7 TIONS.—In any case where, as of the date of enact8 ment of this title, the Administrator or the State has

9 already initiated any administrative or judicial en10 forcement action regarding the liability of any party

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

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

13 Federal or State law or regulation for the response

14 costs, contribution, or performance of response ac15 tions, such action shall be automatically stayed until

16 90 days after a binding allocation of responsibility is

17 issued, any judicial review of such allocation is com18 pleted, and a final administrative or judicial alloca19 tion decision is rendered.

20 ‘‘(2) STAY OF PENDING PRIVATE PARTY LITIGA21 TION.—In any case where, as of the date of enact22 ment of this title, any private person has initiated

23 any administrative or judicial action regarding the

24 liability of any party under section 106, subpara25 graph (A), (B), or (D) of section 107(a)(4), or sec-
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1 tion 113, or under any other Federal or State law

2 or regulation for the response costs, contribution, or

3 performance of response actions, such action shall be

4 automatically stayed until 90 days after a binding

5 allocation of responsibility is issued, any judicial re6 view of such allocation is completed, and a final ad7 ministrative or judicial allocation decision is ren8 dered.

9 ‘‘(d) CREDIT FOR ACTIONS AND COSTS IN PENDING

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

11 or cost incurred in any activity carried out pursuant to

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

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

14 response action or other activity carried out pursuant to

15 subsection (b), shall be included in, the subsequently is16 sued binding allocation of responsibility for such National

17 Priority List site. In conducting the binding allocation of

18 responsibility, the allocation panel shall, to the extent rea19 sonably possible, give credit for any prior costs incurred

20 or response actions performed at the National Priority

21 List site.

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

23 time period described in paragraph (2) shall not be count24 ed in determining the statute of limitations applicable to

25 any administrative or judicial action under section 106,
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1 subparagraph (A), (B), or (D) of section 107(a)(4), or sec2 tion 113, or under any other Federal or State law or regu3 lation, for the recovery of costs, for contribution, or for

4 the investigation, cleanup, or remediation of any National

5 Priority List site.

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

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

8 a petition for the initiation of a binding allocation of re9 sponsibility for that site and ending on the date that a

10 binding allocation of responsibility is issued.

11 ‘‘SEC. 510. VOLUNTARY SETTLEMENTS.

12 ‘‘Prior to the issuance of a binding allocation of re13 sponsibility decision, any group of potentially responsible

14 parties may submit a private allocation for the National

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

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

17 voluntary binding allocation of responsibility meets the fol18 lowing criteria, the allocation panel shall promptly adopt

19 it as the binding allocation of responsibility:

20 ‘‘(1) The voluntary binding allocation of respon21 sibility shall be a binding allocation of 100 percent

22 of past, present, and future recoverable response

23 costs at the site.
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1 ‘‘(2) The voluntary binding allocation of respon2 sibility shall not allocate any costs or require3 ments—

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

5 guardian agrees, in writing, to such allocation;

6 or

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

8 to the voluntary binding allocation of respon9 sibility.

10 ‘‘(3) Signatories to the voluntary binding alloca11 tion of responsibility shall be entitled to contribution

12 protection as specified in section 508(e). Such sig13 natories shall be prohibited from pursuing any cost

14 recovery action or contribution against any non-sig15 natory, but may seek additional recovery against

16 non-signatories based on a contract for insurance or

17 indemnification.

18 ‘‘(4) Signatories to the voluntary binding alloca19 tion of responsibility shall be entitled to enforce it in

20 the same manner as any binding allocation of re21 sponsibility final decision by the allocation panel.

22 ‘‘SEC. 511. NEW BINDING ALLOCATIONS OF RESPONSIBIL23 ITY.

24 ‘‘A binding allocation of responsibility shall constitute

25 a permanent determination of the assigned share of each
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1 liable party and of the orphan share and, except for addi2 tions to the orphan share pursuant to section 508(d) and

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

4 the binding allocation of responsibility shall not be subject

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

6 date of the binding allocation of responsibility final deci7 sion. Thereafter a new binding allocation of responsibility

8 process shall be available only if the party requesting it

9 demonstrates that, due to new information not reasonably

10 available during first binding allocation of responsibility,

11 a 35 percent or greater increase in total waste-in volume

12 has been discovered. If such a request for a new binding

13 allocation of responsibility is granted, the same rules and

14 procedures described for initial binding allocations of re15 sponsibility apply to the new or revised binding allocation

16 of responsibility. New binding allocations of responsibility

17 shall only apply to funds actually expended after the effec18 tive date of the new binding allocation of responsibility de19 cision, with no credits for funds already expended. Subse20 quent new binding allocations of responsibility requests

21 are prohibited until 5 years after the date of issuance of

22 the prior new binding allocation of responsibility.’’.

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