Union Calendar No. 392

103D CONGRESS

2D SESSION H. R. 3800

[Report No. 103–582, Parts I, II, and III]

A BILL

To amend the Comprehensive Environmental Reand for other purposes. sponse, Compensation, and Liability Act of 1980,

AUGUST 26, 1994

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 392

103D CONGRESS

2D SESSION H. R. 3800

[Report No. 103–582, Parts I, II, and III]

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 3, 1994

Mr. SWIFT, by request (for himself, Mr. DINGELL, Mr. MINETA, Mr. ROSTENKOWSKI, and Mr. APPLEGATE) introduced the following bill; which was

divided and referred as follows: titles I through VIII jointly to the Committees on Energy and Commerce and Public Works and Transportation;

and title IX to the Committee on Ways and Means

JUNE 30, 1994

Reported from the Committee on Energy and Commerce with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

AUGUST 8, 1994

Reported from the Committee on Public Works and Transportation with an

amendment

[Strike out all after the enacting clause and insert the part printed in bold face roman]

AUGUST 26, 1994

Reported from the Committee on Ways and Means with an amendment, committed to the Committee of the Whole House on the State of the Union,

and ordered to be printed

[Strike out title IX of the introduced bill and insert the part printed in bold face italic]

[For text of introduced bill, see copy of bill as introduced on February 3, 1994]
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A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

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

5 of 1994’’.

6 SEC. 2. TABLE OF CONTENTS.

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

Sec. 1. Short title.

Sec. 2. Table of contents.

Sec. 3. References to Comprehensive Environmental Response, Compensation, and

Liability Act of 1980.

TITLE I—COMMUNITY PARTICIPATION AND HUMAN HEALTH

Sec. 101. Public participation.

Sec. 102. Community working groups.

Sec. 103. Hazard ranking system.

Sec. 104. Disease registry and medical care providers.

Sec. 105. Substance profiles.

Sec. 106. Determining health effects.

Sec. 107. Public health at NPL facilities.

Sec. 108. Health studies.

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

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

Sec. 111. Public health recommendations in remedial actions.

Sec. 112. Transition.

TITLE II—STATE ROLES

Sec. 201. Contracts or cooperative agreements with States.

Sec. 202. State cost share.

Sec. 203. Siting.

Sec. 204. The National Priorities List.

Sec. 205. The State registry.

Sec. 206. Conforming and miscellaneous amendments.

Sec. 207. Study of authorization of States to carry out Superfund.

Sec. 208. State role at Federal facilities.
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TITLE III—VOLUNTARY RESPONSE

Sec. 301. Voluntary response program.

TITLE IV—LIABILITY AND ALLOCATION

Sec. 401. Information gathering and access.

Sec. 402. Compliance with administrative orders.

Sec. 403. Limitations to liability for response costs.

Sec. 404. Liability.

Sec. 405. Civil proceedings.

Sec. 406. Limitations on contribution actions.

Sec. 407. Scope of rulemaking authority.

Sec. 408. Enhancement of settlement authorities.

Sec. 409. Professional services.

Sec. 410. Final covenants.

Sec. 411. Expedited final settlements.

Sec. 412. Allocation procedures.

Sec. 413. Recycling transactions.

TITLE V—REMEDY SELECTION AND CLEANUP STANDARDS

Sec. 501. Cleanup standards.

Sec. 502. Remedy selection.

Sec. 503. Miscellaneous amendments to section 121.

Sec. 504. Response authorities.

Sec. 505. Removal actions.

Sec. 506. Transition.

TITLE VI—MISCELLANEOUS

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

facilities.

Sec. 602. Transfers of uncontaminated property.

Sec. 603. Agreements to transfer by deed.

Sec. 604. Alternative or innovative treatment technologies.

Sec. 605. Definitions.

Sec. 606. Response claims procedures.

Sec. 607. Small business ombudsman.

Sec. 608. Consideration of local government cleanup priorities.

Sec. 609. Consistent application among regional offices.

Sec. 610. Study of participants.

Sec. 611. Public comment.

Sec. 612. Certification of environmental training and certification organizations.

Sec. 613. Savings clause.

Sec. 614. Federal entities and facilities.

TITLE VII—FUNDING

Sec. 701. Authorization of appropriations.

Sec. 702. Orphan share funding.

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

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

Sec. 705. Authorization of appropriations from general revenues.

Sec. 706. Additional limitations.

Sec. 707. Uses of the fund.
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TITLE VIII—ENVIRONMENTAL INSURANCE RESOLUTION FUND

Sec. 801. Short title.

Sec. 802. Definitions.

Sec. 803. Environmental Insurance Resolution Fund.

Sec. 804. Resolution offers.

Sec. 805. Documentation of claims and insurance coverage.

Sec. 806. Amount of resolution offers.

Sec. 807. Acceptance of resolution offer.

Sec. 808. Resolution payments.

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

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

Sec. 811. Stay of pending litigation.

Sec. 812. Regulations.

Sec. 813. Court jurisdiction and penalties.

Sec. 814. Miscellaneous provisions.

Sec. 815. Reports.

Sec. 816. Effective date.

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

Sec. 818. Termination of fund.

TITLE IX—TAXES

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

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

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

Sec. 904. Resolution Fund not subject to tax.

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

4 Except as otherwise expressly provided, whenever in

5 this Act an amendment or repeal is expressed in terms of

6 an amendment to, or repeal of, a section or other provision,

7 the reference shall be considered to be made to a section or

8 other provision of the Comprehensive Environmental Re9 sponse, Compensation, and Liability Act of 1980 (com10 monly known as ‘‘Superfund’’) (42 U.S.C. 9601 and follow11 ing).
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1 TITLE I—COMMUNITY PARTICI2 PATION AND HUMAN HEALTH

Sec. 101. Public participation.

Sec. 102. Community working groups.

Sec. 103. Hazard ranking system.

Sec. 104. Disease registry and medical care providers.

Sec. 105. Substance profiles.

Sec. 106. Determining health effects.

Sec. 107. Public health at NPL facilities.

Sec. 108. Health studies.

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

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

Sec. 111. Public health recommendations in remedial actions.

Sec. 112. Transition.

3 SEC. 101. PUBLIC PARTICIPATION.

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

5 subsection (e) and inserting the following:

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

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

8 promulgated by the Administrator, the Administrator

9 may make grants available to any group of individ10 uals which may be affected by the release or threat11 ened release of hazardous substances, pollutants, or

12 contaminants at any facility on the State Registry or

13 the National Priorities List. Such grants shall be

14 known as Technical Assistance Grants. To ensure that

15 the application process is accessible to all affected

16 citizens, the Administrator shall periodically review

17 such process and, based on such review, shall imple18 ment appropriate changes to the application process

19 to improve access.
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1 ‘‘(2) SPECIAL RULES.—No matching contribu2 tion shall be required for a Technical Assistance

3 Grant. The President shall make a portion of the

4 grant available to the grant recipient, in advance of

5 the expenditures to be covered by the grant, in $5,000

6 installments.

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

8 The President shall publish guidance for determining

9 that the recipient of any Technical Assistance Grant

10 award is a legitimate representative of the commu11 nity affected by the facility.

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

13 grant may be made under this subsection with respect

14 to a single facility, but the grant may be renewed to

15 facilitate public participation at all stages of response

16 action. Limits shall be established with respect to the

17 number of years for which grants may be available

18 based on the duration, type, and extent of response

19 activity at a facility.

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

21 limitations provided in paragraph (6), grants shall be

22 made available to affected citizens who live in com23 munities containing facilities in the State Registry

24 not listed on the National Priorities List.
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1 ‘‘(6) FUNDING LIMIT.—Not more than 4 percent

2 of the funds made available for carrying out this Act

3 for any fiscal year may be used for grants under this

4 subsection in that fiscal year and not more than one5 eighth of the funds under this subsection may be used

6 for grants with respect to facilities not listed on the

7 National Priorities List. If such one-eighth portion is

8 not needed for such facilities, such portion may be

9 used for grants with respect to facilities listed on the

10 National Priorities List.

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

12 any grant under this subsection may not exceed

13 $50,000 for a single grant recipient. However, the Ad14 ministrator shall increase the amount of the initial

15 grant, as appropriate, to reflect the complexity of re16 sponse action, the nature and extent of contamination

17 at the facility, the level of facility activity, projected

18 total needs as requested by the grant recipient, the

19 size and diversity of the affected population, and the

20 ability of the grant recipient to identify and raise

21 funds from other sources.

22 ‘‘(8) AUTHORIZED GRANT ACTIVITIES.—

23 ‘‘(A) INTERPRETATION OF INFORMATION.—

24 Grants awarded under this subsection may be

25 used to obtain technical assistance in interpret-
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1 ing information with regard to (i) the nature of

2 the hazard at a facility; (ii) the remedial inves3 tigation and feasibility study; (iii) the record of

4 decision; (iv) the selection, design, and construc5 tion of the remedial action; (v) operation and

6 maintenance; or (vi) removal activities at such

7 facility.

8 ‘‘(B) ADDITIONAL ACTIVITIES.—Grants

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

10 to obtain technical assistance in gathering and

11 interpreting information used to rank facilities

12 according to the Hazard Ranking System, (ii)

13 for gathering information to assess a remedy se14 lection decision, (iii) to hire health and safety

15 experts to advise affected residents on health as16 sessment and contamination data gathering ef17 forts and response activities, (iv) to hire a com18 munity liaison to potentially responsible parties

19 and government agencies, (v) to hire experts to

20 file comments with governmental agencies and

21 generate other documents as necessary to ensure

22 full participation by the grant recipient, (vi) to

23 hire experts to provide input to the design of any

24 health studies that a government agency per25 forms, and (vii) for training funds for interested
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1 affected community members to enable them to

2 more effectively participate in the remedy selec3 tion process.

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

5 this section may not be used for the purposes of

6 collecting field sampling data.

7 ‘‘(9) USE OF EXPERTS.—Technical or other ex8 perts hired by grant recipients under this subsection

9 shall be hired by such recipients pursuant to guide10 lines developed by the Administrator.

11 ‘‘(10) NON-SITE-SPECIFIC GRANTS.—In accord12 ance with the rules promulgated by the Adminis13 trator, the Administrator may make Technical Assist14 ance Grant funds available to nonprofit organizations

15 and citizens groups to enhance their participation in

16 consensus-based rulemaking processes carried out in

17 accordance with this Act. Total funding for all such

18 grants shall not exceed $100,000.

19 ‘‘(f) IMPROVING CITIZEN AND COMMUNITY PARTICIPA20 TION IN THE SUPERFUND DECISIONMAKING PROCESS.—

21 (1)(A) In order to provide an opportunity for meaningful

22 public participation in every significant phase of response

23 activities under this Act, the President shall provide the op24 portunity for public meetings and publish a notice of such
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1 meetings before or during performance of each of the follow2 ing:

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

4 assessment and site inspection, as appropriate. Where

5 the President determines a meeting is not appropriate

6 at the preliminary assessment and site inspection

7 stage, the President shall provide adequate public no8 tice of that decision.

9 ‘‘(ii) The Remedial Investigation and Feasibility

10 Study (RI/FS).

11 ‘‘(iii) The announcement of the preferred reme12 dial alternative.

13 ‘‘(iv) The completion of the work plan for the RI/

14 FS, Remedial Design and Remedial Action.

15 ‘‘(B) Public meetings shall be designed to obtain infor16 mation from the community and disseminate information

17 to the community concerning the President’s facility activi18 ties and pending decisions.

19 ‘‘(2) The President also shall provide reasonable notice

20 of an opportunity for public participation in meetings in

21 which—

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

23 or State officials where the State is conducting re24 sponse activities, with authority to make significant

25 decisions affecting a response action, and any other
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1 person or persons, unless the other person or persons

2 are all coregulators that are not potentially respon3 sible parties, or government contractors; and

4 ‘‘(B) the subject of the meeting involves the devel5 opment of the work plan for the preliminary assess6 ment and site inspection, the RI/FS, Remedial Design

7 or Remedial Action, or any other phase of the reme8 dial process for facilities on the National Priorities

9 List or in the State Registry.

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

11 health assessments and site inspection, the President shall

12 solicit and evaluate concerns, interests, and information

13 from the community likely affected by the facility. The eval14 uation shall include, as appropriate, face-to-face commu15 nity surveys to identify the location of private drinking

16 water wells, historic and current or potential use of water,

17 and other environmental resources in the community; a

18 public meeting; written responses to significant concerns;

19 and other appropriate participatory activities.

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

21 study, the President shall solicit the views and preferences

22 of the affected community on the remediation and disposi23 tion of hazardous substances, pollutants, or contaminants

24 at the facility. The views and preferences of affected commu25 nity members shall be described in the remedial investiga-
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1 tion and feasibility study and considered in the screening

2 of remedial alternatives for the facility.

3 ‘‘(5) Members of the affected community may propose

4 remedial alternatives to the President, and the President

5 shall consider such alternatives in the same manner as the

6 President considers alternatives proposed by potentially re7 sponsible parties.

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

9 Information and Access Office (as provided for in sub10 section (h)), shall provide information to the community

11 and seek comment from affected citizens throughout all sig12 nificant phases of the response action at the facility. The

13 President shall ensure that information gathered from af14 fected citizens during community outreach efforts reaches

15 appropriate technical staff in a timely and effective man16 ner. The President also shall ensure reasonable written or

17 other appropriate responses to such information.

18 ‘‘(7) The President shall make all nonprivileged infor19 mation available to the public throughout all phases of re20 sponse action at the facility. Such information shall be

21 made available to the public for inspection and copying

22 without the need to file a formal request subject to reason23 able service charges as appropriate.

24 ‘‘(8)(A) The President, in carrying out responsibilities

25 under this Act, shall ensure that the presentation of infor-
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1 mation on risk is unbiased and informative. To the extent

2 feasible, documents made available to the general public

3 which purport to describe the degree of risk to human health

4 shall, at a minimum, state—

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

6 any risk estimates;

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

8 for the specific population;

9 ‘‘(iii) any appropriate upperbound and lower10 bound estimates; and

11 ‘‘(iv) the reasonable range or other description of

12 uncertainties in the assessment process.

13 ‘‘(B) To the extent practical and appropriate, the Ad14 ministrator shall provide comparisons of the level of risk

15 from hazardous substances found at facilities to comparable

16 levels of risk from hazardous substances ordinarily encoun17 tered by the general public through other routes of exposure.

18 ‘‘(9) Notwithstanding any other provision of this sub19 section, in the case of a removal action taken in accordance

20 with section 104 which is expected to extend beyond 180

21 days, the President shall comply with the requirements of

22 this section. Whenever the planning period for a removal

23 action is expected to be greater than 6 months, the Adminis24 trator shall provide the community with notice of the an-
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1 ticipated removal action and a public comment period of

2 no less than 30 days.’’.

3 SEC. 102. COMMUNITY WORKING GROUPS.

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

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

6 subsections:

7 ‘‘(g) COMMUNITY WORKING GROUPS.—

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

9 President shall provide the opportunity for the estab10 lishment of a representative public forum, known as

11 a Community Working Group (CWG), to achieve di12 rect, regular, and meaningful consultation with all

13 interested parties throughout all stages of a response

14 action whenever—

15 ‘‘(A) the President determines such a group

16 will be helpful; or

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

18 the population of a locality in which the Na19 tional Priorities List facility is located, petition

20 for a Community Working Group to be estab21 lished.

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

23 Group shall provide information and views to the

24 President, and, as appropriate, any or all of the fol25 lowing: the Agency for Toxic Substances and Disease
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1 Registry, State regulatory agencies, Federal and State

2 natural resource trustees, and potentially responsible

3 parties conducting response actions. The information

4 and views reported shall include the various subjects

5 related to facility remediation, including facility

6 health studies, potential remedial alternatives, and se7 lection and implementation of remedial and removal

8 actions. The Community Working Group shall at9 tempt to achieve consensus among its members before

10 reporting positions to agencies or potentially respon11 sible parties. In cases in which consensus cannot be

12 reached, the Community Working Group shall allow

13 the presentation of divergent views.

14 ‘‘(3) LAND USE RECOMMENDATIONS.—To obtain

15 greater community support for remedial decisions af16 fecting future land use, the President shall consult

17 with the CWG on a regular basis throughout the rem18 edy selection process regarding the reasonably antici19 pated future use of land at the facility and any insti20 tutional controls required to assure that land use de21 terminations remain in effect. The CWG may offer

22 recommendations on the reasonably anticipated fu23 ture use of land at the facility to the President at any

24 time prior to the selection of a remedy at the facility.

25 The land use recommendation shall consider at a
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1 minimum future facility waste management needs

2 and the criteria in section 121(b)(2). The President

3 shall not be bound by any recommendation of the

4 CWG. However, the President shall give substantial

5 weight to the CWG’s land use recommendation when

6 the CWG achieves consensus on the reasonably antici7 pated future use of land at the facility. In cases in

8 which there is substantive disagreement within the

9 CWG over a recommendation regarding the reason10 ably anticipated future use of land at the facility, the

11 President shall make reasonable efforts to reconcile the

12 differences. In the event of continued substantive dis13 agreement, substantial weight shall be given to the

14 views of the residents in the affected community.

15 Should the President make a determination that is

16 inconsistent with a consensus CWG recommendation

17 on the reasonably expected future use of land at the

18 facility, the President shall issue a written expla19 nation for the inconsistency.

20 ‘‘(4) COMMUNITY WORKING GROUP INPUT.—With

21 the exception of land use recommendations, input re22 ceived from the Community Working Groups shall be

23 considered by the President to be of equal weight with

24 the advice received from the Technical Assistance
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1 Grant recipients and other affected community mem2 bers.

3 ‘‘(5) COMMUNITY WORKING GROUP MEMBERS.—

4 Members shall serve on the Community Working

5 Group without pay. Membership on the Community

6 Working Group shall not exceed 20 persons. The

7 President shall solicit and accept nominations for the

8 Community Working Group membership. Ultimate

9 selection of CWG members shall be made by the Presi10 dent after consultation with the Citizen Information

11 and Access Office as provided for in subsection (h).

12 The President shall also provide notice and oppor13 tunity to participate to persons who are or histori14 cally have been disproportionately affected by facility

15 contamination in their community. Each Community

16 Working Group shall, to the extent practicable, reflect

17 the composition of the community near the facility

18 and the diversity of interest. Local residents shall

19 comprise no less than 50 percent of the total member20 ship of the CWG. In general, the President shall allow

21 members of the following groups representation on a

22 CWG:

23 ‘‘(A) Persons residing or owning residential

24 property near the facility or persons who may be

25 directly affected by the releases from the facility.
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1 At least one person in this group shall represent

2 the Technical Assistance Grant recipient if such

3 a grant has been awarded under subsection (e).

4 ‘‘(B) Persons who, although not residing or

5 owning property near the facility, may be poten6 tially affected by releases from the facility.

7 ‘‘(C) Members of the local medical commu8 nity practicing in the community.

9 ‘‘(D) Representatives of local Indian tribes

10 or Indian communities.

11 ‘‘(E) Local representatives of citizen, envi12 ronmental, or public interest groups with mem13 bers residing in the community.

14 ‘‘(F) Local government which may include

15 pertinent city or county governments, or both,

16 and any other governmental unit which regulates

17 land use in the vicinity of the facility.

18 ‘‘(G) Workers at the facility who will be in19 volved in actual response operations.

20 ‘‘(H) Workers employed at the facility dur21 ing facility operation.

22 ‘‘(I) Facility owners and local representa23 tives of the significant Potentially Responsible

24 Parties (PRPs), who represent, wherever prac25 ticable, a balance of PRP interests.
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1 ‘‘(J) Members of the local business commu2 nity.

3 ‘‘(6) TECHNICAL AND ADMINISTRATIVE SUPPORT

4 FOR COMMUNITY WORKING GROUPS.—The President

5 shall provide administrative services and meeting fa6 cilities for Community Working Groups. The Admin7 istrator of Environmental Protection Agency, the Ad8 ministrator of the Agency for Toxic Substances and

9 Disease Registry and the State, as appropriate, shall

10 participate in Community Working Group meetings

11 to provide information and technical expertise, but

12 shall not be members of the Community Working

13 Group.

14 ‘‘(7) OTHER PUBLIC COMMENT.—The existence of

15 a CWG shall not diminish any other obligation of the

16 President to consider the views of any person in se17 lecting response actions under this Act.

18 ‘‘(h) CITIZEN INFORMATION AND ACCESS OFFICES.—

19 ‘‘(1) ESTABLISHMENT OF CITIZEN INFORMATION

20 AND ACCESS OFFICES.—Within 18 months after the

21 date of enactment of the Superfund Reform Act of

22 1994, a Citizen Information and Access Office

23 (CIAO) shall be established within each State to per24 form the functions provided in this subsection. The

25 CIAO shall be an independent special purpose unit of
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1 the government, subject to the administrative laws of

2 the State, including any sunshine laws. If a CIAO

3 has not been established in a State within such 18

4 months, the Administrator shall establish an office

5 within the Agency to perform the functions of the

6 CIAO in that State until such time as a CIAO is es7 tablished.

8 ‘‘(2) PRIMARY FUNCTIONS.—Each Citizen Infor9 mation and Access Office shall have the following pri10 mary functions:

11 ‘‘(A) The Citizen Information and Access

12 Office shall inform citizens and elected officials

13 at all levels of government of the existence of

14 State Registry and National Priorities List fa15 cilities in the State.

16 ‘‘(B) The Citizen Information and Access

17 Office shall provide citizens with a description of

18 the identification and response process under

19 this Act and citizens’ legal rights within that

20 process. It may include identification of re21 sources, including Technical Assistance Grants,

22 that are available to assist affected citizens in

23 participating effectively in the Superfund proc24 ess. Information shall be disseminated in a man25 ner that is easily understood by the community,
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1 considering any unique cultural needs of the

2 community, including presentation of informa3 tion orally and distribution of information in

4 languages other than English as appropriate.

5 Other information that the CIAO shall provide

6 to the public may include the following:

7 ‘‘(i) The possibility, where relevant,

8 that a community may qualify to receive an

9 alternative water supply or relocation as10 sistance.

11 ‘‘(ii) The potential for or existence of a

12 Community Working Group.

13 ‘‘(iii) A description of the facility’s lo14 cation and characteristics, the hazardous

15 substances, pollutants or contaminants

16 present, the known exposure pathways, and

17 the steps being taken to assess the risk pre18 sented by the facility. The Citizen Informa19 tion and Access Office shall disseminate in20 formation characterizing the risks presented

21 by a facility. Where a CIAO receives con22 flicting information from the President and

23 the Community Working Group, the CIAO

24 will make every effort to resolve any appar25 ent difference in information on the risks
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1 present at the facility before it distributes

2 that information to the public. Where no

3 agreement is reached among the Citizen In4 formation and Access Office, the President,

5 and the Community Working Group, the

6 Citizen Information and Access Office shall

7 disseminate such information reflecting the

8 differing views about the risk presented by

9 the facility. The Citizen Information and

10 Access Office shall seek to ensure that the

11 information it disseminates is based on the

12 most current technical and scientific data

13 in its possession for any State Registry or

14 National Priorities List facility.

15 ‘‘(C) The Citizen Information and Access

16 Office shall serve as an information clearing17 house in each State. Its functions also shall in18 clude maintaining records of each facility’s sta19 tus and any health data generated concerning

20 National Priorities List facilities in each State.

21 The facility data maintained by the Citizen In22 formation and Access Office shall also include—

23 ‘‘(i) a record of any institutional con24 trols at all facilities in the State;
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1 ‘‘(ii) any annual health data generated

2 in connection with the facility;

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

4 the State Registry;

5 ‘‘(iv) to the extent available, the haz6 ardous substances or pollutants or contami7 nants present at each facility in the State,

8 including the volume of the hazardous sub9 stances or pollutants or contaminants;

10 ‘‘(v) the exposure pathways, current ex11 posure (if any), potential future exposure,

12 and risks to human health or the environ13 ment, after seeking to resolve any discrep14 ancies as provided in subparagraph

15 (B)(iii);

16 ‘‘(vi) protective concentration levels es17 tablished for the facility;

18 ‘‘(vii) the biennial Environmental Jus19 tice Report prepared pursuant to this sec20 tion; and

21 ‘‘(viii) any report generated during the

22 review conducted in accordance with section

23 121(c).

24 ‘‘(D) The Citizen Information and Access

25 Office shall assist the Administrator in the Ad-
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1 ministrator’s efforts to disseminate information,

2 notify citizens of public meetings, notify poten3 tial Community Working Group members, and

4 other tasks, as appropriate.

5 ‘‘(E) The Citizen Information and Access

6 Office shall collect available information from

7 the Administrator or other Federal or State

8 agencies regarding the continued effectiveness of

9 removal and remedial actions taken in the State.

10 ‘‘(F) The Citizen Information and Access

11 Office shall conduct outreach activities and pro12 vide information to small disadvantaged busi13 nesses about Federal and State contracting and

14 (to the extent available) subcontracting opportu15 nities at facilities in the State.

16 ‘‘(3) FUNDING.—Funding for all Citizen Infor17 mation and Access Offices, collectively, shall not ex18 ceed $50,000,000 per year. The Administrator shall

19 publish guidelines establishing a formula for deter20 mining the actual amount of funding for each Citizen

21 Information and Access Office and procedures for

22 awarding grants to any CIAO. The formula shall in23 clude factors such as the number and complexity of

24 State Registry and National Priorities List facilities

25 in the State. The funding shall be available directly
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1 to each Citizen Information and Access Office or, in

2 States where no CIAO is established, the funding shall

3 be made available to the Administrator to carry out

4 the responsibilities of this subsection in that State or

5 for the use of the entity with whom the Administrator

6 contracts to perform the functions of the CIAO.

7 ‘‘(4) CITIZEN INFORMATION AND ACCESS OFFICE

8 GOVERNING BOARD.—

9 ‘‘(A) ESTABLISHMENT.—Each Citizen In10 formation and Access Office shall establish a vol11 unteer Citizen Governing Board which shall have

12 the ultimate responsibility for ensuring that the

13 Citizen Information and Access Office is prop14 erly managed.

15 ‘‘(B) CITIZEN INFORMATION AND ACCESS

16 OFFICE GOVERNING BOARD MEMBERS.—

17 ‘‘(i) NOMINATIONS.—Citizens active in

18 State Registry and National Priorities List

19 facility communities shall nominate persons

20 for board membership.

21 ‘‘(ii) APPOINTMENTS.—The Governor

22 of each State shall appoint, from those

23 nominees put forward, between 7 and 15

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

2 Where possible, the Governor shall ensure

3 that one-half of the appointees reside in

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

6 and the other half reside in communities af7 fected by a variety of non-NPL State Reg8 istry facilities in the State. Board members

9 shall have a demonstrated commitment to

10 the needs of the citizens in these commu11 nities, and shall reasonably reflect the ra12 cial and ethnic composition of these commu13 nities. Special efforts shall be made to

14 nominate citizens who are or historically

15 have been disproportionately adversely af16 fected by facility contamination.

17 ‘‘(iv) EXPERIENCE.—Where possible,

18 Board members should have a background

19 in a field of study related to the scientific

20 and technical issues common to Superfund

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

23 ‘‘(v) TERMS.—Board members shall

24 serve for limited, staggered terms.
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1 ‘‘(5) CITIZEN INFORMATION AND ACCESS OFFICE

2 STAFF.—Each Citizen Information and Access Office

3 shall have a permanent staff to assist in carrying out

4 its functions. Staff shall have demonstrated qualifica5 tions for working with citizens in communities lo6 cated near State Registry or National Priorities List

7 facilities, and shall also meet other criteria established

8 by the President in consultation with the Citizen In9 formation and Access Office Citizen Governing Board.

10 An Executive Director or President, selected by the

11 full Governing Board, shall be responsible for all Citi12 zen Information and Access Office staffing decisions.

13 ‘‘(6) FEDERAL OVERSIGHT OF CITIZEN INFORMA14 TION AND ACCESS OFFICE.—

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

16 and Access Office shall report annually to the

17 Administrator regarding performance of its du18 ties and shall provide a detailed accounting of

19 its use of funds under this section.

20 ‘‘(B) VERIFICATION BY INSPECTOR GEN21 ERAL.—The Inspector General of the Environ22 mental Protection Agency shall periodically re23 view the programs and reports made under this

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

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

4 determines, after notice to the affected CIAO,

5 that the CIAO has expended funds in a manner

6 inconsistent with this section.

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

9 PEOPLES.—Members of Indian tribes affected by a fa10 cility on the National Priorities List may petition the

11 Administrator to form a body that is the equivalent

12 of a State Citizen Information and Access Office. Not13 withstanding the creation of a tribal Citizen Informa14 tion and Access Office, the State Citizen Information

15 and Access Office shall be responsible for providing

16 information and expertise to tribal members as well

17 as other citizens in the State. Tribal members may es18 tablish Community Working Groups under subsection

19 (g) regardless of whether there exists a tribal Citizen

20 Information and Access Office or other tribal program

21 relating to this Act.

22 ‘‘(i) ENVIRONMENTAL JUSTICE STUDY.—

23 ‘‘(1) REPORT BY THE ADMINISTRATOR.—The Ad24 ministrator shall prepare and submit to Congress an

25 Environmental Justice Study two years after the date
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1 of enactment of the Superfund Reform Act of 1994

2 and every 2 years thereafter. Such study also shall be

3 provided to the Citizen Information Access Offices.

4 The Administrator and Citizen Information Access

5 Offices shall ensure that copies of such studies are

6 made available to the public.

7 ‘‘(2) CONTENT OF THE REPORT.—The Adminis8 trator’s report shall include an analysis of each facil9 ity which shall compare information on priority set10 ting, response actions, and public participation re11 quirements conducted under this Act to the popu12 lation, race, ethnicity, and income characteristics of

13 each community affected by each facility.

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

15 evaluate the information in the study to determine

16 whether priority setting, response actions, and public

17 participation requirements were conducted in a fair

18 and equitable manner and identify program areas

19 that require improvements or modification.

20 ‘‘(4) ACTIONS BASED ON EVALUATION.—The Ad21 ministrator shall institute the necessary improve22 ments or modifications to address any deficiencies

23 identified in the study prepared under this section.’’.

24 SEC. 103. HAZARD RANKING SYSTEM.

25 Section 105 (42 U.S.C. 9605(a)) is amended as follows:
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1 (1) By inserting after subsection (g) the follow2 ing new subsections:

3 ‘‘(h) HAZARD RANKING SYSTEM.—In setting priorities

4 under subsection (a)(8), the President—

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

6 are not adjacent or geographically juxtaposed, and

7 score them as a single facility where more than one

8 facility listed on the State Registry results in hazard9 ous substances exposures to the same population;

10 ‘‘(2) may take into account to the maximum ex11 tent technically feasible any history of exposure to

12 hazardous substances in the community regardless of

13 the source of exposure, in placing facilities on the Na14 tional Priorities List;

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

16 waterways for subsistence, religious, spiritual, or cul17 tural practices where such use results in additional

18 exposures, in placing facilities on the National Prior19 ities List; and

20 ‘‘(4) shall conduct interviews with persons af21 fected by the facility and living in the community

22 and solicit their input and information in the hazard

23 ranking system evaluation.

24 ‘‘(i) ENVIRONMENTAL JUSTICE FACILITY SCORING.—

25 The Administrator shall evaluate major urban areas and
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1 any other areas where environmental justice concerns may

2 warrant special attention (such as tribal lands or poor

3 rural communities) and identify 5 facilities in each region

4 of the Environmental Protection Agency that are, or that

5 should be, on the State Registry and that are likely to war6 rant inclusion on the National Priorities List. These facili7 ties shall be accorded a priority in evaluation for NPL list8 ing and scoring, and shall be evaluated for listing within

9 2 years after the date of enactment of the Superfund Reform

10 Act of 1994.’’.

11 (2) By striking the period at the end of para12 graph (10) of subsection (a) and inserting ‘‘; and’’

13 and by adding the following new paragraph after

14 such paragraph (10):

15 ‘‘(11) a process and procedure for reviewing peti16 tions to reevaluate a facility not on the National Pri17 orities List for inclusion on the National Priorities

18 List where paragraphs (1), (2), and (3) of subsection

19 (h) are relevant.’’.

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

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

23 as follows:

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

25 follows:
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1 ‘‘(A) in cooperation with the States, for scientific

2 purposes and public health purposes, establish and

3 maintain a national registry of persons exposed to

4 toxic substances;’’.

5 (2) In subparagraph (E), by striking ‘‘admission

6 to hospitals and other facilities and services operated

7 or provided by the Public Health Service’’ and insert8 ing ‘‘referral to accredited medical care providers’’.

9 SEC. 105. SUBSTANCE PROFILES.

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

11 as follows:

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

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

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

15 (3) By striking out the matter beginning with

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

17 that follows through the end of such paragraph and

18 inserting in lieu thereof the following:

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

20 reflect the Administrator of ATSDR’s assessment of all rel21 evant toxicological testing which has been peer reviewed.

22 The profiles prepared under this paragraph shall be for

23 those substances highest on the list of priorities under para24 graph (2) for which profiles have not previously been pre25 pared or for substances not on the listing but which have
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1 been found at non-National Priorities List facilities and

2 which have been determined by ATSDR to be of critical

3 health concern. Profiles required under this paragraph shall

4 be revised and republished as necessary, based on scientific

5 need. Such profiles shall be provided to the States and made

6 available to other interested parties.’’.

7 SEC. 106. DETERMINING HEALTH EFFECTS.

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

9 amended as follows:

10 (1) By striking ‘‘designed to determine the health

11 effects (and techniques for development of methods to

12 determine such health effects) of such substance’’ and

13 inserting ‘‘conducted directly or by means such as co14 operative agreements and grants with appropriate

15 public and nonprofit institutions. The research shall

16 be designed to determine the health effects (and tech17 niques for development of methods to determine such

18 health effects) of the substance’’.

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

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

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

22 new clause:

23 ‘‘(iv) laboratory and other studies which can

24 lead to the development of innovative techniques for
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1 predicting organ-specific, site-specific, and system2 specific acute and chronic toxicity; and’’.

3 SEC. 107. PUBLIC HEALTH AT NPL FACILITIES.

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

5 as follows:

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

7 follows:

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

9 public health assessment for each facility, including those

10 facilities owned by any department, agency, or instrumen11 tality of the United States, on the National Priorities List

12 established under section 105 of this Act. The public health

13 assessment shall be commenced as soon as practicable after

14 each facility is proposed for inclusion on the National Pri15 orities List and shall be completed not later than the date

16 of issuance of a remedial investigation and feasibility study

17 for the facility to allow full consideration in selecting the

18 remedial action of the public health implications of any re19 lease.’’.

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

21 ‘‘(D)’’ and by adding the following at the end of the

22 subparagraph: ‘‘The Administrator and the Adminis23 trator of ATSDR shall develop strategies to obtain

24 relevant on-site and off-site characterization data for

25 use in the health assessment. The Administrator shall,
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1 to the maximum extent practicable, provide the Ad2 ministrator of ATSDR with the data and informa3 tion necessary to make public health assessments suf4 ficiently prior to the initiation of remedial actions to

5 allow ATSDR to complete these assessments. Where

6 deemed appropriate, the Administrator of ATSDR

7 shall provide to the Administrator as soon as prac8 ticable after site discovery, recommendations for sam9 pling environmental media for hazardous substances

10 of public health concern. To the extent feasible, the

11 Administrator shall incorporate such recommenda12 tions into its site investigation activities.

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

14 health assessments, the Administrator of ATSDR shall

15 carry out each of the following duties:

16 ‘‘(I) The Administrator of ATSDR shall actively

17 collect data from Community Working Groups (‘Com18 munity Working Groups’) and from other sources in

19 communities affected or potentially affected by re20 leases of hazardous substances, pollutants, or contami21 nants regarding exposure, relevant human activities,

22 and other factors.

23 ‘‘(II) The Administrator of ATSDR shall design

24 health assessments that take into account the needs

25 and conditions of the affected community. Commu-
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1 nity-based research models, building links to local ex2 pertise and local health resources should be used.

3 Each Community Working Group (or affected com4 munity where no Community Working Group exists)

5 shall be permitted to play an active and early role in

6 reviewing health assessment designs. In preparing

7 such designs, emphasis shall be placed on collection of

8 actual exposure data and sources of multiple exposure

9 shall be considered.’’.

10 (3) In subparagraph (H), by striking ‘‘health as11 sessment’’ each place it appears and inserting ‘‘public

12 health assessment’’.

13 SEC. 108. HEALTH STUDIES.

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

15 9604(i)(7)) is amended to read as follows: ‘‘(A) Whenever

16 in the judgment of the Administrator of ATSDR it is ap17 propriate on the basis of the results of a public health assess18 ment or on the basis of other appropriate information, the

19 Administrator of ATSDR shall conduct a human health

20 study of exposure or other health effects for selected groups

21 or individuals in order to determine the desirability of con22 ducting full scale epidemiologic or other health studies of

23 the entire exposed population.’’.
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1 SEC. 109. DISTRIBUTION OF MATERIALS TO HEALTH PRO2 FESSIONALS AND MEDICAL CENTERS.

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

4 is amended to read as follows:

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

6 health-related provisions of this Act in cooperation with the

7 States, the Administrator of ATSDR shall—

8 ‘‘(A) assemble, develop as necessary, and distrib9 ute to the States, medical colleges, physicians, nursing

10 institutions, nurses, and other health professionals

11 and medical centers, appropriate educational mate12 rials (including short courses) on the medical surveil13 lance, screening, and methods of prevention, diag14 nosis, and treatment of injury or disease related to

15 exposure to hazardous substances (giving priority to

16 those listed in paragraph (2)), through means the Ad17 ministrator of ATSDR considers appropriate; and

18 ‘‘(B) assemble, develop as necessary, and distrib19 ute to the general public and to at-risk populations

20 appropriate educational materials and other informa21 tion on human health effects of hazardous sub22 stances.’’.

23 SEC. 110. GRANT AWARDS, CONTRACTS, AND COMMUNITY

24 ASSISTANCE ACTIVITIES.

25 Section 104(i)(15) (42 U.S.C. 6904(i)(15)) is amended

26 as follows:
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1 (1) By inserting ‘‘(A)’’ before ‘‘The activities’’.

2 (2) In the first sentence, by striking ‘‘cooperative

3 agreements with States (or political subdivisions

4 thereof)’’ and inserting ‘‘grants, cooperative agree5 ments, or contracts with States (or political subdivi6 sions thereof), other appropriate public authorities,

7 public or private institutions, colleges, universities,

8 and professional associations’’.

9 (3) In the second sentence, by inserting ‘‘public’’

10 before ‘‘health assessments’’.

11 (4) By adding at the end the following new sub12 paragraph:

13 ‘‘(B) When a public health assessment is conducted at

14 a facility on the National Priorities List, or a release is

15 being evaluated for inclusion on the National Priorities

16 List, the Administrator of ATSDR may provide the assist17 ance specified in this paragraph to public or private non18 profit entities, individuals, and community-based groups

19 that may be affected by the release or threatened release of

20 hazardous substances in the environment.’’.

21 SEC. 111. PUBLIC HEALTH RECOMMENDATIONS IN REME22 DIAL ACTIONS.

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

24 first sentence by inserting after ‘‘remedial action’’ the sec25 ond time it appears the following: ‘‘, including public health
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1 recommendations and decisions resulting from activities

2 under section 104(i),’’.

3 SEC. 112. TRANSITION.

4 (a) EFFECTIVE DATE IN GENERAL.—Except as pro5 vided in subsection (b), this title and the amendments made

6 by this title shall become effective upon the date of enact7 ment of this Act.

8 (b) SPECIAL RULE.—The requirements of paragraphs

9 (1) through (4) of section 117(f) and paragraph (1) of sec10 tion 117(g) of the Comprehensive Environmental Response,

11 Compensation, and Liability Act of 1980, as added by sec12 tions 101 and 102, shall become effective 180 days after the

13 date of enactment of this Act.

14 TITLE II—STATE ROLES

Sec. 201. Contracts or cooperative agreements with States.

Sec. 202. State cost share.

Sec. 203. Siting.

Sec. 204. The National Priorities List.

Sec. 205. The State registry.

Sec. 206. Conforming and miscellaneous amendments.

Sec. 207. Study of authorization of States to carry out Superfund.

Sec. 208. State role at Federal facilities.

15 SEC. 201. CONTRACTS OR COOPERATIVE AGREEMENTS

16 WITH STATES.

17 Title I is amended by adding after section 126 the fol18 lowing new section:

19 ‘‘SEC. 127. CONTRACTS OR COOPERATIVE AGREEMENTS

20 WITH STATES.

21 ‘‘(a) IN GENERAL.—
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1 ‘‘(1) APPLICATION FOR AUTHORITY TO TAKE

2 PREREMEDIAL ACTION AT NON-NPL FACILITIES.—A

3 State may apply to the Administrator to take or re4 quire preremedial actions (including removal actions)

5 under a contract or cooperative agreement as pro6 vided in this section at any non-federally owned or

7 operated facility within the boundaries of the State

8 that is not listed on the National Priorities List

9 (NPL).

10 ‘‘(2) APPLICATION FOR AUTHORITY TO TAKE RE11 SPONSE ACTION AT NPL FACILITIES.—A State may

12 apply to the Administrator to take or require response

13 actions, including selection and enforcement of reme14 dial actions and use of allocation procedures under

15 section 130, under a contract or cooperative agree16 ment as provided in this section at any non-federally

17 owned or operated facility within the boundaries of

18 the State that is listed on the National Priorities List

19 (NPL) or to take or require removal actions at any

20 facility proposed for listing on the National Priorities

21 List.

22 ‘‘(3) APPROVAL OF APPLICATION.—The Adminis23 trator shall enter into a contract or cooperative agree24 ment under this section if the Administrator deter25 mines that the State—
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1 ‘‘(A) meets the qualification requirements

2 set forth in the regulations promulgated pursu3 ant to subsection (b); and

4 ‘‘(B) with respect to authority to select re5 medial actions and use allocation procedures,

6 meets the qualification requirements set forth in

7 subsection (c).

8 ‘‘(b) REGULATIONS.—The Administrator, in consulta9 tion with the States, shall promulgate regulations to imple10 ment this section. The regulations shall provide such addi11 tional qualifications for a contract or cooperative agreement

12 under this section as the Administrator considers reason13 able, including qualifications applicable to particular types

14 of preremedial or response actions. The regulations shall in15 clude a requirement that, in order for a State to qualify

16 for a contract or cooperative agreement with respect to a

17 facility under this section, the State may not be a major

18 potentially responsible party with respect to that facility.

19 ‘‘(c) QUALIFICATION REQUIREMENTS WITH RESPECT

20 TO SELECTION OF REMEDIAL ACTION AND USE OF ALLOCA21 TION PROCEDURES.—For purposes of subsection (a)(3)(B),

22 with respect to a contract or cooperative agreement under

23 this section for authority to select remedial action or to use

24 the allocation procedures under section 130, the Adminis25 trator also shall make each of the following determinations:
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1 ‘‘(1) The State has the capability to select reme2 dial actions or to use the allocation procedures under

3 section 130, including adequate legal authority, fi4 nancial and personnel resources, organization, and

5 expertise.

6 ‘‘(2) The State meets any other qualifications set

7 forth in the regulations promulgated under subsection

8 (b) for selecting remedial actions or using the alloca9 tion procedures.

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

11 of performing similar response actions.

12 ‘‘(d) REQUIREMENTS FOR SELECTION OF REMEDIAL

13 ACTION.—In any contract or cooperative agreement that al14 lows a State to select remedial actions, the State shall agree

15 to select such remedial actions in accordance with all of

16 the procedures and requirements set forth in sections 117

17 and 121 of this Act, the National Contingency Plan, and

18 any other relevant regulations and guidelines adopted by

19 the Administrator.

20 ‘‘(e) STATE AUTHORITY REGARDING ENFORCEMENT

21 OF SELECTED REMEDIAL ACTION.—(1) A State that selects

22 a remedial action pursuant to a contract or cooperative

23 agreement entered into under subsection (a) shall have the

24 authority to enforce the requirements of such remedial ac25 tion pursuant to section 121(f)(4).
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1 ‘‘(2) Such State also shall have the authority to enforce

2 compliance with any standard, regulation, condition, re3 quirement, order, or final determination of the State with

4 respect to the remedial action. Such State also may seek

5 civil penalties not to exceed $25,000 per day for any viola6 tion of such standard, regulation, condition, requirement,

7 order, or final determination. Such State may commence

8 an action seeking such relief unless the standard, regula9 tion, condition, requirement, order, or final determination

10 is arbitrary, capricious, or contrary to law when reviewed

11 upon the administrative record presented by the State.

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

13 or cooperative agreement, such State may waive a Federal

14 requirement applicable to the remedial action in accordance

15 with section 121.

16 ‘‘(f) REQUIREMENTS FOR ENFORCEMENT AND ALLOCA17 TION.—

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

19 or cooperative agreement providing for a State to ini20 tiate an enforcement action with respect to a facility

21 for purposes of recovering costs or compelling per22 formance of a remedy at the facility, the contract or

23 cooperative agreement shall require the State to pro24 vide for expedited settlements under section 122.
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1 ‘‘(2) USE OF ALLOCATION PROCEDURES.—(A) In

2 the case of a contract or cooperative agreement pro3 viding for a State to initiate an enforcement action

4 with respect to a facility subject to mandatory alloca5 tion pursuant to section 130(a)(1), the contract or co6 operative agreement shall require the State to use al7 location procedures with respect to the facility. The

8 contract or cooperative agreement shall require the

9 State to initiate the allocation process by certifying

10 each of the following:

11 ‘‘(i) The State has completed a potentially

12 responsible party search substantially consistent

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

14 the results of that search available to the allo15 cator and the parties.

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

17 and tribal natural resource trustees of the com18 mencement of the allocation process and, pursu19 ant to section 104(b)(2), of potential damages to

20 natural resources.

21 ‘‘(iii) The facility would be subject to man22 datory allocation under section 130(a)(1) if the

23 President were conducting the response action.

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

25 under subparagraph (A), the Administrator shall ini-
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1 tiate an allocation in accordance with the terms of

2 section 130. The Administrator may assign to the

3 State, by cooperative agreement or otherwise, any re4 sponsibilities to conduct the allocation, except that the

5 Administrator and Attorney General shall retain

6 their authority relating to orphan share funding as

7 provided by this paragraph and in section 130, in8 cluding the timing and terms of payment.

9 ‘‘(C) The State may accept or reject the alloca10 tion report on the same basis as provided in section

11 130(l). If the State does not reject the allocation, it

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

13 settlements. The State may recover the costs of the al14 location pursuant to State law or the provisions of

15 this Act.

16 ‘‘(D) The President, through either the Adminis17 trator or the Attorney General, or both, may partici18 pate in any phase of an allocation proceeding where

19 an orphan share is identified according to the factors

20 set forth in section 130.

21 ‘‘(E) If the State accepts an allocation report as

22 the basis for its settlements, and the allocation report

23 identifies an orphan share subject to Federal funding,

24 the State shall apply for such funding by certifying
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1 each of the following to the Administrator and the At2 torney General:

3 ‘‘(i) The allocation presents a reasonable

4 basis for resolving responsibility for the facility.

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

6 shall be in accordance with section 130.

7 ‘‘(F) The Administrator and the Attorney Gen8 eral shall accept a State’s request for orphan share

9 funding supported by an allocation report and the

10 certification described in subparagraph (E), unless

11 the Administrator and Attorney General determine,

12 within 120 days after the request by the State, that

13 the allocation does not meet the standards set forth in

14 section 130. Such determination shall be made in the

15 same manner, and shall be subject to the same limita16 tions, as set forth in section 130.

17 ‘‘(G) The contract or cooperative agreement shall

18 provide the following:

19 ‘‘(i) The Administrator may deduct from

20 orphan share funding the costs incurred in con21 ducting the allocation.

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

23 funding only to fund response actions through

24 settlement or to reimburse parties performing

25 work in excess of the share assigned to them in
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1 allocation. No such reimbursement may exceed

2 the reimbursement level available under section

3 130.

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

5 through orphan share funding from nonsettling re6 sponsible parties pursuant to State law or the provi7 sions of this Act. Seventy-five percent of such recover8 ies shall be returned to the Fund. The remaining 25

9 percent shall be used for any other response action by

10 the recovering State.

11 ‘‘(3) COVENANTS.—(A) In a case in which either

12 the President, acting under the authority of this Act,

13 or a State, acting pursuant to a contract or coopera14 tive agreement under this section, has responsibility

15 for selecting a response action at a facility listed or

16 proposed for listing on the National Priorities List

17 and enters an administrative or judicial settlement to

18 resolve the liability of responsible parties at the facil19 ity, the President or the State may confer, in accord20 ance with requirements relating to covenants of sec21 tions 122 and 130, a covenant that will preclude some

22 or all administrative or judicial action by both the

23 President and the State to recover response costs or

24 to compel response actions at the facility with respect

25 to matters addressed in the settlement, except that
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1 such covenants shall not be binding on the govern2 mental entity that did not confer the covenant to the

3 extent that—

4 ‘‘(i) the covenant purports to address natu5 ral resource damages; or

6 ‘‘(ii) the President or the State has not been

7 provided notice of, and an opportunity to par8 ticipate in, the settlement concerning the re9 sponse action; or

10 ‘‘(iii) the President or the State objects to

11 the settlement within 120 days of the date of sig12 nature for the record of decision or receipt of no13 tice of the settlement, whichever is later.

14 ‘‘(B) The covenants described by this paragraph

15 may be conferred by either the Administrator or the

16 State with respect to a facility owned or operated by

17 any department, agency, or instrumentality of the

18 United States (including the executive, legislative,

19 and judicial branches of government). The Adminis20 trator may confer a covenant in an administrative

21 order, consent decree, or an interagency agreement.

22 The State may confer a covenant in an administra23 tive order or a consent decree.

24 ‘‘(g) TERMS AND CONDITIONS; ENFORCEMENT.—
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1 ‘‘(1) IN GENERAL.—A contract or cooperative

2 agreement under this section shall be subject to such

3 terms and conditions as the Administrator may pre4 scribe. If a State fails to comply with a requirement

5 of a contract or cooperative agreement, the Adminis6 trator, after 90 days notice to the affected State, may

7 seek in the appropriate United States district court to

8 ensure performance of the response action, or to re9 cover any funds advanced or any costs incurred be10 cause of the breach.

11 ‘‘(2) SPECIFIC TERMS.—A contract or coopera12 tive agreement under this section shall include the fol13 lowing requirements:

14 ‘‘(A) A requirement that the State shall ex15 ercise any authority conferred by this section or

16 the contract or cooperative agreement on behalf

17 of the State, and not on behalf of or in the name

18 of the Administrator, the President, or the Unit19 ed States.

20 ‘‘(B) A requirement that the State have and

21 maintain sufficient legal authority under appli22 cable State law to enter into the contract or co23 operative agreement.

24 ‘‘(C) A requirement that the Administrator

25 retain authority to terminate and recoup fund-
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1 ing, and to terminate the contract or cooperative

2 agreement, if the State fails to perform the con3 tract or cooperative agreement in a manner con4 sistent with this Act. At least 90 days before ter5 minating any contract or cooperative agreement

6 with a State, the Administrator shall provide to

7 the State a written explanation of the reasons for

8 the proposed termination and afford an oppor9 tunity to the State to discuss the termination

10 and to propose actions to correct any defi11 ciencies.

12 ‘‘(D) A requirement imposing a non13 discretionary duty on the Administrator to per14 form or compel expeditious performance of re15 sponse actions under the contract or cooperative

16 agreement if the State fails to comply with the

17 terms of the contract or cooperative agreement.

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

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

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

21 SEC. 202. STATE COST SHARE.

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

23 following new paragraphs:

24 ‘‘(10) EXISTING CONTRACTS AND COOPERATIVE

25 AGREEMENTS.—The requirements of paragraphs (3), (6),
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1 and (7) of this subsection shall apply only to contracts and

2 cooperative agreements pursuant to section 104(d) entered

3 into prior to the enactment of the Superfund Reform Act

4 of 1994.

5 ‘‘(11) STATE COST SHARE.—After the date of enact6 ment of the Superfund Reform Act of 1994, the Adminis7 trator shall not provide any funding under this subsection

8 or section 127, or any response action pursuant to this sec9 tion, except for emergency removal actions, unless the State

10 in which the release or threatened release occurs has entered

11 into a contract or cooperative agreement pursuant to this

12 subsection or section 127 that provides assurances, deemed

13 adequate by the Administrator, that—

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

15 percent of the cost of such response action or funding,

16 including 15 percent of orphan share funding and op17 eration and maintenance costs; and

18 ‘‘(B) the State will assure oversight of any oper19 ation and maintenance of funded response actions.’’.

20 SEC. 203. SITING.

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

22 ‘‘(9) SITING.—Effective 1 year after the date of enact23 ment of the Superfund Reform Act of 1994, the President

24 shall not provide any remedial actions pursuant to this sec25 tion or section 127 unless the State in which the release
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1 occurs submits a report describing its plans for adequate

2 treatment, storage, and disposal capacity of hazardous

3 wastes generated within the State, in accordance with

4 guidelines issued by the Administrator.’’.

5 SEC. 204. THE NATIONAL PRIORITIES LIST.

6 Section 105(a)(8)(B) is amended by striking ‘‘as part

7 of the plan’’.

8 SEC. 205. THE STATE REGISTRY.

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

10 amended by adding after subparagraph (B) the following

11 new subparagraph:

12 ‘‘(C) STATE REGISTRY.—Each State shall main13 tain and make available to the public a list of facili14 ties in the State that are believed to present a current

15 or potential hazard to human health or the environ16 ment due to the release or threatened release of haz17 ardous substances or pollutants or contaminants.

18 Each State, in consultation with the Administrator

19 and other appropriate Federal agencies, shall update

20 such listing on an annual basis.’’.

21 SEC. 206. CONFORMING AND MISCELLANEOUS AMEND22 MENTS.

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

24 121(e) is amended—

25 (A) by striking out paragraph (2); and
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1 (B) by striking out ‘‘PERMITS AND ENFORCE2 MENT.—(1)’’ and inserting ‘‘PERMITS.—’’.

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

4 the following new paragraph:

5 ‘‘(4) A State may enforce any Federal or State stand6 ard, requirement, criteria, or limitation to which the reme7 dial action is required to conform under this Act in the

8 United States district court for the district in which the

9 facility is located.’’.

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

11 adding after ‘‘section 104(i) (regarding health authorities)’’

12 the following: ‘‘, section 127 (regarding contracts and coop13 erative agreements), section 128 (regarding voluntary re14 sponse actions), subsection (f) of section 121 (relating to

15 cleanup standards), section 122(d)(1)(D) (relating to com16 pliance with consent decrees),’’.

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

18 inserting ‘‘(including any State)’’ after ‘‘person’’.

19 (d) TRANSITION.—Subsection (d) of section 104 is

20 amended by adding at the end the following new paragraph:

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

22 in effect on the effective date of regulations promulgated to

23 implement section 127, as added by the Superfund Reform

24 Act of 1994.’’.
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1 SEC. 207. STUDY OF AUTHORIZATION OF STATES TO CARRY

2 OUT SUPERFUND.

3 The Administrator of the Environmental Protection

4 Agency shall conduct a study of the feasibility of authoriz5 ing States to use their own laws to carry out the provisions

6 of the Comprehensive Environmental Response, Compensa7 tion, and Liability Act of 1980 in lieu of the Federal pro8 gram established under such Act.

9 SEC. 208. STATE ROLE AT FEDERAL FACILITIES.

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

11 follows:

12 ‘‘(g) TRANSFER OF AUTHORITIES.—

13 ‘‘(1) STATE APPLICATION FOR TRANSFER OF AU14 THORITIES.—A State may apply to the Adminis15 trator to exercise the authorities vested in the Admin16 istrator under this section at any or all facilities

17 owned or operated by any department, agency, or in18 strumentality of the United States (including the ex19 ecutive, legislative, and judicial branches of govern20 ment), including the authority—

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

22 for completion of any remedial investigation and

23 feasibility study;

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

25 prepared in connection with any such investiga26 tion and study;
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1 ‘‘(C) to select and approve remedies; and

2 ‘‘(D) to enter into and enforce, through ju3 dicial or administrative means, agreements, or4 ders, and consent decrees entered into pursuant

5 to this Act.

6 ‘‘(2) TRANSFER OF AUTHORITIES.—The Admin7 istrator shall enter into a contract or cooperative

8 agreement to transfer the authorities described in

9 paragraph (1) if the Administrator determines the

10 following:

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

12 such authorities in accordance with this Act, in13 cluding adequate legal authority, financial and

14 personnel resources, organization, and expertise.

15 ‘‘(B) The State demonstrates experience in

16 exercising similar authorities.

17 ‘‘(3) EFFECT OF AUTHORIZATION UNDER SOLID

18 WASTE DISPOSAL ACT.—In the review by the Admin19 istrator of an application of a State for transfer of

20 authorities under this subsection, if the State is au21 thorized to implement a State hazardous waste pro22 gram pursuant to section 3006 of the Solid Waste

23 Disposal Act (42 U.S.C. 6926), the following provi24 sions apply:
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1 ‘‘(A) With respect to a State that is a signa2 tory to an interagency agreement under sub3 section (e)(2) that is in effect on the effective date

4 of the Superfund Reform Act of 1994, the Ad5 ministrator, in making the determinations re6 ferred to in paragraph (2), shall accord substan7 tial weight to the State’s hazardous waste pro8 gram authorization and the Administrator’s

9 findings in approving such authorization.

10 ‘‘(B) With respect to a State whose author11 ization under such section 3006 includes author12 ization to implement the corrective action provi13 sions of the Solid Waste Disposal Act, the Ad14 ministrator shall approve the application and

15 provide for the orderly transfer of authorities as

16 expeditiously as possible, but in no case later

17 than 6 months after the date of receipt of the ap18 plication, unless the parties agree to another

19 deadline.

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

21 which authorities are transferred under this sub22 section shall not be deemed to be an agent of the

23 President but shall exercise such authorities in its

24 own name.
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1 ‘‘(5) DEADLINES.—Except as provided in para2 graph (3)(B), the Administrator shall make a deter3 mination on an application from a State under this

4 subsection not later than 90 days after the date the

5 Administrator receives the application.

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

7 Administrator may withdraw the authorities trans8 ferred under this subsection in whole or in part if the

9 Administrator determines—

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

11 exercising such authorities in a manner clearly

12 inconsistent with the requirements of this Act; or

13 ‘‘(ii) in the case of a State that was ap14 proved under paragraph (3)(B), that the State is

15 no longer authorized to implement the corrective

16 action provisions of the Solid Waste Disposal

17 Act.

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

19 such transferred authorities from a State, the Admin20 istrator shall provide to the State a written expla21 nation of the reasons for the proposed withdrawal and

22 afford an opportunity to the State to discuss the with23 drawal and to propose actions to correct any defi24 ciencies.
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1 ‘‘(7) LIMITATION.—Except for authorities that

2 are transferred by the Administrator to a State pur3 suant to this subsection, or that are transferred by the

4 Administrator to an officer or employee of the Envi5 ronmental Protection Agency, no authority vested in

6 the Administrator under this section may be trans7 ferred, by executive order of the President or other8 wise, to any other officer or employee of the United

9 States or to any other person. Except as necessary to

10 implement the transfer of the Administrator’s au11 thorities to a State pursuant to this subsection, noth12 ing in this subsection shall be construed as altering,

13 modifying, or impairing in any manner any agree14 ment, permit, administrative or judicial order, decree,

15 or interagency agreement existing on the effective date

16 of the Superfund Reform Act of 1994. Nothing in this

17 subsection shall affect the exercise by a State of any

18 other authorities that may be applicable to facilities

19 in such State.’’.

20 TITLE III—VOLUNTARY

21 RESPONSE

Sec. 301. Voluntary response program.

22 SEC. 301. VOLUNTARY RESPONSE PROGRAM.

23 Title I is amended by adding the following new section

24 after section 127:
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1 ‘‘SEC. 128. VOLUNTARY RESPONSE PROGRAM.

2 ‘‘(a) PURPOSES AND OBJECTIVES.—The purposes and

3 objectives of this section are to—

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

5 activities at contaminated sites by promoting and en6 couraging the creation, development, and expansion of

7 State voluntary response programs; and

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

9 environment by returning contaminated sites to eco10 nomically productive or other beneficial uses.

11 ‘‘(b) ESTABLISHMENT OF PROGRAM.—The Adminis12 trator shall establish a program to provide technical, finan13 cial, and other assistance, including grants, to States to es14 tablish and expand voluntary response programs.

15 ‘‘(c) EPA ASSISTANCE TO STATES FOR STATE VOL16 UNTARY RESPONSE PROGRAMS.—The Administrator shall

17 assist States in the establishment and administration of

18 State voluntary response programs that—

19 ‘‘(1) provide opportunities for technical assist20 ance for voluntary response actions;

21 ‘‘(2) provide adequate opportunities for public

22 participation in selecting response actions, including

23 prior notice and opportunity for comment in appro24 priate circumstances;

25 ‘‘(3) provide streamlined procedures to ensure ex26 peditious voluntary response actions;
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1 ‘‘(4) provide adequate oversight and enforcement

2 authorities to ensure that voluntary response actions

3 are protective of human health and the environment,

4 are conducted accordance with an appropriate re5 sponse action plan and ensure completion of response

6 actions if the person conducting the response action

7 fails or refuses to complete the necessary response ac8 tivities, including operation and maintenance or

9 long-term monitoring activities;

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

11 response action plan; and

12 ‘‘(6) provide for a certification or similar docu13 mentation from the State to the person conducting the

14 response action indicating that the response is com15 plete.

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

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

18 for review by the Administrator, documents the State deems

19 appropriate to describe a State voluntary response pro20 gram, together with a certification that the program is con21 sistent with the elements set forth in subsection (c).

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

23 ‘‘(1) APPROVAL OR DISAPPROVAL.—A State vol24 untary response program submitted under subsection

25 (d) shall be a qualified program under this Act begin-
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1 ning on the date 120 days after the submittal of the

2 certification under subsection (d) unless the Adminis3 trator determines before that date that the State’s sub4 mittal is not consistent with the elements set forth in

5 subsection (c). The Administrator shall seek public

6 comment on the submittal of a State voluntary re7 sponse program under this section and shall publish

8 in the Federal Register the reasons for the approval

9 or disapproval of any such program.

10 ‘‘(2) WITHDRAWAL OF APPROVAL.—Whenever the

11 Administrator determines after public hearing that a

12 State is not administering and enforcing a qualified

13 program in accordance with subsection (c), the Ad14 ministrator shall notify the State in writing of such

15 determination. If appropriate corrective action is not

16 taken by the State within 120 days after receipt of the

17 notice, the Administrator shall withdraw approval of

18 the program and publish a notice of such withdrawal

19 in the Federal Register, after which the State pro20 gram shall cease to be a qualified program under this

21 section. If the State subsequently undertakes corrective

22 measures, the Administrator shall reinstate the pro23 gram as a qualified program under this section. The

24 Administrator shall not withdraw approval of any

25 such program unless the Administrator provides to
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1 the State in writing and publishes in the Federal

2 Register the reasons for such withdrawal.

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

4 to a response action plan approved under a qualified pro5 gram under this section shall be proposed for listing on the

6 National Priorities List so long as substantial and contin7 ual response activities are being undertaken pursuant to

8 such plan to complete the response action in a timely man9 ner as set forth in the response action plan. Nothing in this

10 section shall be construed to limit the Administrator’s abil11 ity to list on the National Priorities List facilities that have

12 been proposed for listing, or to compel response action

13 under section 106 of the Act.

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

15 shall, after consultation with the State, and notice and op16 portunity for public comment, promulgate regulations de17 scribing circumstances in which any State having a quali18 fied program, and also authorized to issue permits under

19 Federal environmental statutes, may waive such permit re20 quirements with respect to activities conducted pursuant to

21 an approved voluntary response plan if (1) such State has

22 the authority under its own statutes or regulations to grant

23 such waivers, (2) the State waiver authority is used in no

24 less stringent a manner than allowed under Federal permit

25 waiver authority, and (3) the response action plan requires
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1 compliance with the relevant substantive requirements of

2 the statute concerned.

3 ‘‘(h) EFFECT OF RESPONSE.—Performance of a vol4 untary response action pursuant to this section shall not

5 constitute an admission of liability under any Federal,

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

7 other private action.

8 ‘‘(i) COMPLIANCE WITH NCP.—Response actions con9 ducted pursuant to a qualified program shall be presumed

10 to be consistent with the National Contingency Plan for the

11 purposes of private cost recovery claims under this Act.

12 ‘‘(j) ANNUAL REPORTING.—

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

14 programs under this section shall report to the Ad15 ministrator at the end of each calendar year on the

16 status of their programs. Each such report shall in17 clude a statement regarding whether the program con18 tinues to be consistent with the elements set forth in

19 subsection (c).

20 ‘‘(2) REPORT BY ADMINISTRATOR.—The Admin21 istrator shall report, not later than one year after the

22 enactment of this section, and annually thereafter, to

23 the Congress on the status of State voluntary response

24 program. The report shall include an analysis of

25 whether qualified State voluntary response action
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1 programs continue to be consistent with the elements

2 set forth in subsection (c).

3 ‘‘(k) STATUTORY CONSTRUCTION.—(1) This section is

4 not intended to impose any requirement on a State vol5 untary response program existing on or after the date of

6 the enactment of the Superfund Reform Act of 1994.

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

8 of any person or to affect other response authorities afforded

9 under any law or regulation relating to environmental con10 tamination, including this Act, the Solid Waste Disposal

11 Act, the Clean Water Act, the Toxic Substances Control Act,

12 and title XIV of the Public Health Service Act (the Safe

13 Drinking Water Act), except that the successful completion

14 of a response action at a facility pursuant to a qualified

15 program under this section shall be considered for purposes

16 of section 107(a)(6)(C) as evidence that a person acquiring

17 ownership of the facility is a bona fide prospective pur18 chaser of the facility within the meaning of section 101(39).

19 ‘‘(3) Nothing in this section shall be construed to re20 quire any person to participate in a qualified voluntary

21 response program under this section or in any other vol22 untary response program in order to qualify as a bona fide

23 purchaser for purposes of section 107(a)(6)(C).’’.
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1 TITLE IV—LIABILITY AND

2 ALLOCATION

Sec. 401. Information gathering and access.

Sec. 402. Compliance with administrative orders.

Sec. 403. Limitations to liability for response costs.

Sec. 404. Liability.

Sec. 405. Civil proceedings.

Sec. 406. Limitations on contribution actions.

Sec. 407. Scope of rulemaking authority.

Sec. 408. Enhancement of settlement authorities.

Sec. 409. Professional services.

Sec. 410. Final covenants.

Sec. 411. Expedited final settlements.

Sec. 412. Allocation procedures.

Sec. 413. Recycling transactions.

3 SEC. 401. INFORMATION GATHERING AND ACCESS.

4 (a) ADDITIONAL INFORMATION.—Section 104(e)(2) (42

5 U.S.C. 9604(e)(2)) is amended—

6 (1) by striking ‘‘cleanup’’ in subparagraph (C)

7 and inserting ‘‘response action’’; and

8 (2) by inserting after subparagraph (C) the fol9 lowing:

10 ‘‘(D) The identity of any persons engaged

11 in, responsible for, controlling, or having the

12 ability to control activities or operations at a

13 vessel or facility giving rise to liability under

14 this Act.

15 ‘‘(E) Information relating to the potential

16 liability or responsibility of any person to per17 form or pay for a response action.

18 ‘‘(F) Information that is otherwise relevant

19 to enforce the provisions of this Act.
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1 ‘‘(G) For a person conducting a response

2 action, an accounting of direct and indirect costs

3 the person has incurred in conducting such re4 sponse action.’’.

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

6 9604(e)) is amended—

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

8 (6), and (7) as paragraphs (4), (5), (6), (7), and (8),

9 respectively; and

10 (2) by inserting after paragraph (2) the follow11 ing:

12 ‘‘(3) CERTIFICATION.—The President may re13 quire respondents to requests made pursuant to this

14 subsection to certify that—

15 ‘‘(A) the responses are true, accurate, and

16 complete to the best of the respondent’s knowl17 edge;

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

19 good faith search of records in the possession or

20 control of the person to whom the request was di21 rected;

22 ‘‘(C) the responses are based on a reasonable

23 inquiry of the current and former officers, direc24 tors, employees, and agents of the person to

25 whom the request was directed;
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1 ‘‘(D) the responses accurately and com2 pletely reflect information obtained in the course

3 of conducting such search and inquiry;

4 ‘‘(E) the respondent understands that there

5 is a continuing obligation to supplement the re6 sponse if any additional, new, or different infor7 mation relevant to the matters addressed in the

8 request or the response thereto becomes known or

9 available to the respondent; and

10 ‘‘(F) the respondent understands that there

11 are significant penalties for submitting false in12 formation, including the possibility of fine and

13 imprisonment.’’.

14 (c) ADMINISTRATIVE SUBPOENAS.—Section 104(e) (42

15 U.S.C. 9604(e)) is further amended by inserting after para16 graph (8) (as redesignated by subsection (b)) the following

17 new paragraph:

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

19 would assist in the collection of information necessary

20 or appropriate for the purposes of implementing this

21 Act, the Administrator may by subpoena require the

22 attendance and testimony of witnesses and the pro23 duction of reports, papers, documents, answers to

24 questions, and other information listed in paragraph

25 (2) that the Administrator considers necessary. Wit-
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1 nesses shall be paid the same fees and mileage that

2 are paid witnesses in the courts of the United States.

3 In the event of contumacy or failure or refusal of any

4 person to obey any such subpoena, any district court

5 of the United States in which venue is proper shall

6 have jurisdiction to order any such person to comply

7 with such subpoena. Any failure to obey such an

8 order of the court is punishable by the court as a con9 tempt thereof.’’.

10 (d) CONFIDENTIALITY OF INFORMATION.—Subpara11 graph (A) of section 104(e)(8) (as redesignated by sub12 section (b)), is amended to read as follows:

13 ‘‘(A) Any records, reports, documents, or infor14 mation obtained from any person under this section

15 (including records, reports, documents, or information

16 obtained by representatives of the President and

17 records, reports, documents, or information obtained

18 pursuant to a contract, grant, or other agreement to

19 perform work pursuant to this section) shall be avail20 able to the public, except as follows:

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

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

23 any person that records, reports, documents, or

24 information, or any particular part thereof

25 (other than health or safety effects data), to
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1 which the President (or the State, as the case

2 may be) or any officer, employee, or representa3 tive has access under this section if made public

4 would divulge information entitled to protection

5 under section 1905 of title 18, United States

6 Code, such information or particular portion

7 thereof shall be considered confidential in accord8 ance with the purposes of that section, except

9 that such record, report, document, or informa10 tion may be disclosed to other officers, employees,

11 or authorized representatives of the United

12 States carrying out this Act, or when relevant in

13 any proceeding under this Act, or, if such

14 records, reports, documents, or information are

15 obtained or submitted to the United States (or

16 the State, as the case may be) pursuant to a con17 tract, grant, or other agreement to perform work

18 pursuant to this section, to persons from whom

19 the President seeks to recover costs pursuant to

20 this Act.

21 ‘‘(ii) This section does not require that in22 formation which is exempt from disclosure pur23 suant to section 552(a) of title 5, United States

24 Code, by reason of subsection (b)(5), subsection

25 (b)(6), or subsection (b)(7) of such section, be
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1 available to the public, nor shall the disclosure of

2 any such information pursuant to this section

3 authorize disclosure to other parties or be deemed

4 to waive any confidentiality privilege available

5 to the President under any Federal or State

6 law.’’.

7 (e) CONFIDENTIALITY REQUIREMENTS FOR CONTRAC8 TORS.—Paragraph (8) of section 104(e) (as redesignated by

9 subsection (b)) is amended by adding at the end the follow10 ing new subparagraph:

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

12 disclose such record, report, document, or other infor13 mation without the permission of the President.

14 ‘‘(ii) A person referred to in clause (i) is any

15 person—

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

17 States Government; and

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

19 under a contract or cooperative agreement with

20 the United States under this section to perform

21 work for the United States Government or imple22 ment the requirements of this Act, has received

23 information obtained under this section (or any

24 record, report, or document containing such in25 formation) which, if requested from the United
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1 States Government pursuant to section 552 of

2 title 5, United States Code, would be exempt

3 from disclosure by reason of subsection (b) of

4 such section.’’.

5 (f) AVAILABILITY OF INFORMATION TO CONGRESS.—

6 Subsection 104(e) is further amended by adding after para7 graph (9) the following new paragraph:

8 ‘‘(10) AVAILABILITY OF INFORMATION TO CON9 GRESS.—Nothing in this subsection shall be construed

10 to authorize any person, including the allocator, to

11 withhold any documents or information from Con12 gress, or any duly authorized Committee thereof, or

13 limit in any manner the right of Congress, or any

14 duly authorized Committee thereof, to obtain such

15 documents or information.’’.

16 SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.

17 (a) ADDITIONAL AUTHORITY TO ISSUE ORDERS.—

18 Section 106(a) (42 U.S.C. 9606(a)) is amended by adding

19 at the end the following: ‘‘The President may amend such

20 orders and issue additional orders relating to the facility,

21 as appropriate, without a subsequent finding of an immi22 nent and substantial endangerment, to complete all re23 sponse actions necessary to respond to an actual or threat24 ened release or to require additional response actions that

25 are necessary or appropriate to respond to the actual or
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1 threatened release that was the subject of the original

2 order.’’.

3 (b) SUFFICIENT CAUSE.—Section 106(b)(1) (42 U.S.C.

4 9606(b)(1)) is amended—

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

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

7 (3) by inserting before the period ‘‘, or be re8 quired to comply with such order, or both, even if an9 other person has complied, or is complying, with the

10 terms of the same order or another order pertaining

11 to the same facility and release or threatened release’’;

12 and

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

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

15 cause’ requires—

16 ‘‘(i) an objectively reasonable belief by the person

17 to whom the order is issued that the person is not lia18 ble for any response costs under section 107; or

19 ‘‘(ii) that the action to be performed pursuant to

20 the order is inconsistent with the national contin21 gency plan, as determined by a Federal court that has

22 jurisdiction over such order.

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

24 pursuant to section 130 shall not affect or constitute a basis
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1 for a determination of ‘sufficient cause’ under this para2 graph or under section 107(c)(3).’’.

3 (c) REIMBURSEMENT.—Subsection (b) of section 106

4 (42 U.S.C. 9606(b)) is further amended in the first sentence

5 of paragraph (2)(A) by striking ‘‘completion of’’ and insert6 ing ‘‘the President determines that such person has com7 pleted’’.

8 SEC. 403. LIMITATIONS TO LIABILITY FOR RESPONSE

9 COSTS.

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

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

12 (1) In paragraph (1), by striking ‘‘and’’ and in13 serting ‘‘or’’.

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

15 inserting ‘‘person or’’.

16 (3) In paragraph (4)(A), by inserting ‘‘, includ17 ing the costs of overseeing response actions conducted

18 by potentially responsible parties,’’ before ‘‘incurred

19 by the United States’’.

20 (4) In paragraph (4)(B)—

21 (A) by striking ‘‘other’’ both places it ap22 pears; and

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

24 States, a State, or an Indian tribe,’’ before the
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1 phrase ‘‘consistent with the national contingency

2 plan’’.

3 (5) In paragraph (4), by striking ‘‘by such per4 son,’’ and all that follows through ‘‘shall be liable

5 for—’’ and inserting in lieu thereof the following: ‘‘by

6 such person—

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

8 causes the incurrence of response costs, of a hazardous sub9 stance, shall be liable for—’’.

10 (6) By designating the text beginning with ‘‘The

11 amounts recoverable’’ and ending with ‘‘this sub12 section commences.’’ as paragraph (5) and aligning

13 the margin of such text with paragraph (4).

14 (7) By adding the following new paragraphs

15 after paragraph (5):

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

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

18 the performance of response actions or natural re19 source restoration shall not be liable:

20 ‘‘(A)(i) To the extent liability is based solely

21 on paragraph (3) or (4) of this subsection, and

22 the person arranged for disposal, treatment, or

23 transport for disposal or treatment, or accepted

24 for transport for disposal or treatment of only
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1 municipal solid waste or sewage sludge owned or

2 possessed by such person, and the person is—

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

4 residential property;

5 ‘‘(II) a small business; or

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

7 ‘‘(ii) This subparagraph shall have no effect

8 on the liability of any other person.

9 ‘‘(B) To the extent liability is based solely

10 on paragraph (3) or (4) of this subsection, and

11 the person can demonstrate that it arranged for

12 disposal or treatment, or transport for disposal

13 or treatment or accepted for transport for dis14 posal or treatment, 55 gallons or less of liquid

15 materials containing hazardous substances or

16 pollutants or contaminants or less than 100

17 pounds of solid materials containing hazardous

18 substances or pollutants or contaminants, or

19 such greater or lesser amount as the Adminis20 trator may determine by regulation, except in a

21 case in which—

22 ‘‘(i) the Administrator has determined

23 that such material contributed or could con24 tribute significantly to the costs of response

25 at the facility, or
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1 ‘‘(ii) the person has failed to respond

2 fully and completely to information requests

3 or administrative subpoenas by the United

4 States.

5 ‘‘(C) To the extent liability is based solely

6 on paragraph (1) of this subsection for a release

7 or threat of release from a facility, and the per8 son is a bona fide prospective purchaser of the

9 facility.

10 ‘‘(D) To the extent liability is based solely

11 on the person’s status as owner under paragraph

12 (1) for a release or threat of release from a facil13 ity, and the person acquired the facility by in14 heritance or bequest if the person—

15 ‘‘(i) acquired the real property on

16 which the facility concerned is located after

17 disposal or placement of the hazardous sub18 stance took place;

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

20 release or threat of release; and

21 ‘‘(iii) exercised due care with respect to

22 the hazardous substance concerned, includ23 ing precautions against foreseeable acts of

24 third parties, taking into consideration the

25 characteristics of such hazardous substance,
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1 in light of all relevant facts and cir2 cumstances.

3 ‘‘(E) To the extent the liability of a Federal

4 or State governmental entity or municipality is

5 based solely on its—

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

7 other right of way or public transportation

8 route (other than railroad rights of way

9 and railroad property) over which hazard10 ous substances are transported; or

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

12 conduct business.

13 ‘‘(F) To the extent the liability of a depart14 ment, agency, or instrumentality of the United

15 States is based on actions of such department,

16 agency, or instrumentality taken in response to

17 a natural disaster pursuant to the Act of August

18 18, 1941 (33 U.S.C. 701n) or The Robert T.

19 Stafford Disaster Relief and Emergency Act (42

20 U.S.C. 5121 and following).

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

22 (4), a person shall not be liable for more than 10 per23 cent of total response costs at a facility, in aggregate,

24 to the extent the person’s liability is based solely on

25 paragraph (3) or (4) of this subsection, and the ar-
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1 rangement for disposal, treatment, or transport for

2 disposal or treatment, or the acceptance for transport

3 for disposal or treatment, involved only municipal

4 solid waste or sewage sludge. In any case in which

5 more than one person at a facility comes within the

6 coverage of this paragraph, the 10 percent limitation

7 on liability shall apply to the aggregate liability of

8 all such persons. Such limitation on liability shall

9 apply only if either the acts or omissions giving rise

10 to liability occurred before the date occurring 36

11 months after enactment of this paragraph, or the per12 son asserting the limitation institutes or participates

13 in a qualified household hazardous waste collection

14 program within the meaning of section 101(43).’’.

15 (b) PROSPECTIVE PURCHASER AND WINDFALL

16 LIEN.—Section 107 is amended by inserting after sub17 section (m) the following new subsection:

18 ‘‘(n) PROSPECTIVE PURCHASER AND WINDFALL

19 LIEN.—(1) In any case in which there are unrecovered re20 sponse costs at a facility for which an owner of the facility

21 is not liable by reason of subsection (a)(6)(C), and the con22 ditions described in paragraph (2) are met, the United

23 States shall have a lien upon such facility for such unre24 covered costs. Such lien—
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1 ‘‘(A) shall not exceed the increase in fair market

2 value of the property attributable to the response ac3 tion at the time of a subsequent sale or other disposi4 tion of property;

5 ‘‘(B) shall arise at the time costs are first in6 curred by the United States with respect to a response

7 action at the facility;

8 ‘‘(C) shall be subject to the requirements for no9 tice and validity established in paragraph (3) of sub10 section (l); and

11 ‘‘(D) shall continue until the earlier of satisfac12 tion of the lien or recovery of all response costs in13 curred at the facility.

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

15 the following:

16 ‘‘(A) A response action for which there are unre17 covered costs is carried out at the facility.

18 ‘‘(B) Such response action increases the fair

19 market value of the facility above the fair market

20 value of the facility that existed within six months be21 fore the response action was taken.

22 ‘‘(C) A sale or other disposition of all or a por23 tion of the facility has occurred.’’.

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

25 respect to property for which the property owner preceding
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1 the first bona fide prospective purchaser is not a liable

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

3 where an audit or inquiry required under section

4 101(39)(B) by an environmental professional certified

5 under section 612 of the Superfund Reform Act of 1994

6 gives the bona fide prospective purchaser no knowledge or

7 reason to know of the release of hazardous substances.

8 SEC. 404. LIABILITY.

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

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

11 the following new paragraph at the end thereof:

12 ‘‘(8) The Administrator shall calculate the Envi13 ronmental Protection Agency response action over14 sight costs for which potentially responsible parties

15 are liable under this section (pursuant to paragraph

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

17 response costs incurred by potentially responsible par18 ties (in this paragraph referred to as the ‘national

19 oversight rate’). The calculation shall be based on

20 data comparing oversight expenditures of the Envi21 ronmental Protection Agency to estimated or actual

22 response costs incurred by potentially responsible par23 ties. The Administrator shall periodically review and

24 update the national oversight rate. In no case shall

25 the rate exceed 10 percent of total response costs in-
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1 curred by potentially responsible parties. The na2 tional oversight rate shall be applied to all settlements

3 under section 130.’’.

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

5 Section 107(a) (42 U.S.C. 6907A(a)) (as amended by sub6 section (a)) is further amended by adding after paragraph

7 (8) the following new paragraph:

8 ‘‘(9) When the President responds under the au9 thority of section 104(a)(1)(B), liability for response

10 costs under this section for pollutants and contami11 nants shall be identical to that for hazardous sub12 stances only if such pollutants and contaminants con13 stitute an imminent and substantial danger to

14 human health.’’.

15 (2) Such section is further amended by inserting ‘‘or

16 pollutant or contaminant’’ after ‘‘hazardous substance’’ and

17 ‘‘hazardous substances’’ each place they appear in sub18 section (b), subsection (c), paragraphs (1) and (2) of sub19 section (d), subsection (i), subsection (j), and paragraph

20 (1)(B) of subsection (k).

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

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

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

24 any response costs incurred by the United States as
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1 a result of such failure to take proper action,’’ after

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

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

4 follows through the end of the sentence and inserting

5 ‘‘up to three times the amount of such response

6 costs.’’.

7 (d) CLARIFICATION OF COMMON CARRIER LIABIL8 ITY.—Section 107(b)(3) is amended by striking out ‘‘from

9 a published tariff and acceptance for’’ and inserting ‘‘exclu10 sively from a contract for’’.

11 SEC. 405. CIVIL PROCEEDINGS.

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

13 is amended—

14 (1) by striking ‘‘upon application by any inter15 ested person’’ and inserting ‘‘by any interested person

16 through the filing of a petition for review’’; and

17 (2) by striking ‘‘application shall be made’’, and

18 inserting ‘‘petition shall be filed’’.

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

20 Section 113(g) (42 U.S.C. 9613(g)) is amended by striking

21 paragraphs (2) and (3) and inserting in lieu thereof the

22 following:

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

24 Except as provided in subparagraph (C), an initial
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1 action for recovery of costs referred to in section 107

2 must be commenced—

3 ‘‘(i) for a removal action, within 3 years

4 after completion of all removal action taken with

5 respect to the facility, including off-site disposal

6 of any removed materials, except that if physical

7 on-site construction of the remedial action is ini8 tiated within 3 years after the completion of all

9 removal action taken with respect to the facility,

10 costs incurred for removal action may be recov11 ered in a cost recovery action brought under

12 clause (ii); and

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

14 after initiation of physical on-site construction

15 of the remedial action.

16 ‘‘(B) In any such action described in this para17 graph, the court shall enter a declaratory judgment

18 on liability for response costs or damages that will be

19 binding in such action or in any subsequent action

20 or actions to recover further response costs or dam21 ages. A subsequent action or actions under section 107

22 for further response costs at the vessel or facility may

23 be maintained at any time during the response ac24 tion, but must be commenced no later than 3 years

25 after the date of completion of all response action. Ex-
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1 cept as otherwise provided in this paragraph, an ac2 tion may be commenced under section 107 for recov3 ery of costs at any time after such costs have been in4 curred.

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

6 party against another potentially responsible party

7 for recovery of any response costs or damages must be

8 commenced within the later of—

9 ‘‘(i) the time limitations set forth in sub10 paragraph (A); or

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

12 damages paid pursuant to a judgment or settle13 ment, 3 years after—

14 ‘‘(I) the date of judgment in any ac15 tion under this Act for recovery of such

16 costs or damages, or

17 ‘‘(II) the date of any administrative

18 order or judicial settlement for recovery of

19 the costs or damages paid or incurred pur20 suant to such a settlement.

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

22 STATES.—Claims by the United States under section

23 106 and claims by the United States or a State under

24 section 107(a) shall not be deemed compulsory coun25 terclaims in an action against the United States or
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1 a State seeking response costs, contribution, damages,

2 or any other claim by any person under this Act.’’.

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

4 9613(j)(1)) is amended by striking ‘‘or ordered by the Presi5 dent’’ and inserting ‘‘or selected by the President pursuant

6 to this Act, or ordered or sought by the President,’’.

7 SEC. 406. LIMITATIONS ON CONTRIBUTION ACTIONS.

8 Section 113(f) (42 U.S.C. 9613(f)) is amended as fol9 lows:

10 (1) Paragraph (1) is amended—

11 (A) by striking ‘‘Any person’’ in the first

12 sentence and inserting ‘‘Except as provided in

13 paragraph (4), any person who is liable or po14 tentially liable under section 107(a)’’;

15 (B) by striking ‘‘, during or following any

16 civil action under section 106 or under section

17 107(a).’’ and inserting ‘‘in a claim asserted

18 under section 107(a).’’;

19 (C) in the second sentence, by striking ‘‘this

20 section’’ and inserting ‘‘section 107(a), this sec21 tion,’’; and

22 (D) by striking the sentence beginning with

23 ‘‘Nothing in this subsection’’.

24 (2) Paragraph (2) is amended to read as follows:
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1 ‘‘(2) SETTLEMENTS.—A person who has resolved

2 its liability to the United States in an administrative

3 or judicially approved settlement shall not be liable

4 for contribution or any other claims by any person

5 other than a State acting under section 107(a)(4)(A)

6 (and not as a potentially responsible party) regarding

7 response actions, response costs, or damages addressed

8 in the settlement. A person who has resolved its liabil9 ity to a State or an Indian tribe in an administra10 tive or judicially approved settlement shall not be lia11 ble for contribution or any other claims by persons

12 other than the United States Government acting

13 under section 107(a)(4)(A) (and not as a potentially

14 responsible party) regarding response costs or dam15 ages addressed in the settlement for which the State

16 or Indian tribe has a claim under this title. Such set17 tlement does not discharge any other potentially re18 sponsible persons unless its terms so provide, but it

19 reduces the potential liability of such other persons by

20 the amount of the settlement. The protection afforded

21 by this subsection shall include protection against

22 claims, under Federal or State law, that may be as23 serted against the settling party for recovery of re24 sponse costs or damages incurred or paid by another

25 person, if such costs or damages are addressed in the
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1 settlement, but shall not include protection against

2 claims based on contractual indemnification or other

3 express contractual agreements to pay such costs or

4 damages.’’.

5 (3) Such section is amended by adding at the

6 end the following new paragraph:

7 ‘‘(4) LIMITATIONS ON CONTRIBUTION AC8 TIONS.—(A) There shall be no right of contribution

9 under this subsection in any of the following cir10 cumstances:

11 ‘‘(i) The person asserting the right of con12 tribution has waived the right in a settlement

13 pursuant to this Act.

14 ‘‘(ii) The person from whom contribution is

15 sought is not liable under this Act.

16 ‘‘(iii) The person from whom contribution

17 is sought has entered into a settlement with the

18 United States pursuant to section 122(g), with

19 respect to matters addressed in that settlement.

20 ‘‘(B) Any person who commences an action for

21 contribution shall be liable to the person against

22 whom the claim of contribution is brought for all rea23 sonable costs of defending against the claim, including

24 all reasonable attorneys’ and expert witness fees, if—
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1 ‘‘(i) the action is barred by subparagraph

2 (A);

3 ‘‘(ii) the action is brought against a person

4 who is not liable under this Act;

5 ‘‘(iii) the action is brought against a person

6 who is protected from such suits pursuant to sec7 tion 113(f)(2) by reason of a settlement with the

8 United States; or

9 ‘‘(iv) the action is brought during the mora10 torium pursuant to section 130.’’.

11 SEC. 407. SCOPE OF RULEMAKING AUTHORITY.

12 (a) IN GENERAL.—Section 115 (42 U.S.C. 9615) is

13 amended to read as follows:

14 ‘‘SEC. 115. PRESIDENTIAL DELEGATION AND ASSIGNMENT

15 OF DUTIES OR POWERS AND PROMULGATION

16 OF REGULATIONS.

17 ‘‘The President (or the Administrator where applica18 ble) is authorized to promulgate such regulations as the

19 President (or the Administrator where applicable) deems

20 necessary to carry out the provisions of this Act, and to

21 delegate and assign any duties or powers imposed upon or

22 assigned to him by this Act, including the authority to pro23 mulgate regulations. The preceding sentence includes au24 thority to clarify or interpret all terms and to implement

25 any provision of this Act.’’.
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1 (b) LENDER LIABILITY RULE.—(1) Effective on the

2 date of enactment of this section, the final rule issued by

3 the Administrator of the Environmental Protection Agency

4 on April 29, 1992 (57 Fed. Reg. 18344), shall be deemed

5 to have been validly issued pursuant to the authority of the

6 Comprehensive Environmental Response, Compensation,

7 and Liability Act of 1980, and to have been effective accord8 ing to the final rule’s terms. No additional administrative

9 or judicial proceedings shall be necessary with respect to

10 such final rule.

11 (2) Notwithstanding section 113(a) of the Comprehen12 sive Environmental Response, Compensation and Liability

13 Act of 1980, no court shall have jurisdiction to review the

14 final rule issued by the Administrator of the Environmental

15 Protection Agency on April 29, 1992 (57 Fed. Reg. 18344).

16 (3) Nothing in this subsection shall be construed to

17 limit the authority of the President or his delegate to amend

18 the final rule issued by the Administrator of the Environ19 mental Protection Agency on April 29, 1992 (57 Fed. Reg.

20 18344), in accordance with applicable provisions of law.

21 SEC. 408. ENHANCEMENT OF SETTLEMENT AUTHORITIES.

22 Section 122 (42 U.S.C. 9622) is amended as follows:

23 (1) Subsection (b) is amended by striking para24 graph (3) and redesignating paragraph (4) as para25 graph (3).
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1 (2) Section 122(d)(1) is amended by adding at

2 the end the following new subparagraph:

3 ‘‘(D) COMPLIANCE.—Any consent decree

4 shall require the parties to attempt expeditiously

5 to resolve disagreements concerning implementa6 tion of the remedial action informally with the

7 appropriate Federal and State agencies. Where

8 the parties agree, the consent decree may provide

9 for administrative enforcement. Each consent de10 cree shall also contain stipulated penalties for

11 violations of the decree in an amount not to ex12 ceed $25,000 per day, which may be enforced by

13 either the President or the State. Such stipulated

14 penalties shall not be construed to impair or af15 fect the authority of the court to order compli16 ance with the specific terms of any such decree.’’.

17 (3) Subsection (e) is amended—

18 (A) by striking paragraph (3); and

19 (B) by redesignating paragraphs (4) and

20 (5) as paragraphs (3) and (4), respectively.

21 (4) The section is amended—

22 (A) by transferring paragraph (6) to the

23 end of the section and redesignating such para24 graph as subsection (o);
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1 (B) in such subsection (o) (as so transferred

2 and redesignated), by striking ‘‘remedial action’’

3 and inserting ‘‘response action’’, and by insert4 ing ‘‘or the State under applicable law’’ before

5 the period at the end; and

6 (C) by adding after such subsection (o) (as

7 so transferred and redesignated) the following

8 new subsections:

9 ‘‘(p) RETENTION OF FUNDS.—(1) If, as part of any

10 settlement agreement under this Act, the potentially respon11 sible parties will be paying amounts to the President for

12 carrying out any response action, the President may retain

13 such amounts in interest bearing accounts, and use such

14 amounts, together with accrued interest, to conduct or en15 able other persons to conduct such response action.

16 ‘‘(2) If, as part of any settlement agreement for carry17 ing out a response action under this Act, a potentially re18 sponsible party or parties will be paying amounts to the

19 United States, the Administrator is authorized to accept

20 ownership of a financial instrument running irrevocably

21 to the benefit of the United States to conduct, or enable other

22 persons to conduct, such response actions. For the purposes

23 of this paragraph, the term ‘financial instrument’ means

24 an annuity contract, funding agreement, or similar instru25 ment acceptable to the Secretary of the Treasury, that is
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1 purchased by one or more potentially responsible parties,

2 and has a defined schedule of periodic payments which co3 incides with the obligations set forth in the settlement agree4 ment. Periodic payments under such a financial instrument

5 will be made to the owner, or as the owner directs, for re6 sponse costs at the facility which is the subject of the settle7 ment agreement.

8 ‘‘(q) CHALLENGE TO COST RECOVERY COMPONENT OF

9 SETTLEMENT.—Notwithstanding the limitations on review

10 in section 113(h), and except as provided in subsection (g)

11 of this section, a person whose potential claim for response

12 costs or contribution is limited as a result of contribution

13 protection afforded by an administrative settlement under

14 this section may challenge the cost recovery component of

15 such settlement. Such a challenge may be made only by fil16 ing a complaint against the Administrator in the United

17 States District Court within 60 days after such settlement

18 becomes final. Venue shall lie in the district in which the

19 principal office of the appropriate region of the Environ20 mental Protection Agency is located. Any review of an ad21 ministrative settlement shall be limited to the administra22 tive record, and the settlement shall be upheld unless the

23 objecting party can demonstrate on that record that the de24 cision of the President to enter into the administrative set-
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1 tlement was arbitrary, capricious, or otherwise not in ac2 cordance with law.

3 ‘‘(r) UNSUCCESSFUL CHALLENGERS LIABLE FOR AT4 TORNEY’S FEES.—Any party who challenges any settlement

5 entered into between the President and any potentially re6 sponsible party under this Act, and who is not successful

7 in overturning or modifying the settlement, shall be liable

8 to the United States and any settling party for all reason9 able attorneys’ fees and costs incurred in defending the set10 tlement.’’.

11 SEC. 409. PROFESSIONAL SERVICES.

12 Section 122 is amended by adding after subsection (r),

13 as added by section 408, the following new subsection:

14 ‘‘(s) PROFESSIONAL SERVICES.—The Administrator

15 has the authority to use the procedures set forth in section

16 109(e) to obtain the services of neutral professionals to as17 sist in the conduct of settlement negotiations under this sec18 tion, whether or not the neutral professional actually par19 ticipates in such negotiations.’’.

20 SEC. 410. FINAL CONVENANTS.

21 Section 122(f) is amended as follows:

22 (1) Paragraph (1) is amended to read as follows:

23 ‘‘(1) FINAL COVENANTS.—The President shall

24 offer potentially responsible parties who enter into

25 settlement agreements that are in the public interest
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1 a final covenant not to sue concerning any liability

2 to the United States under this Act, including a cov3 enant with respect to future liability, for response ac4 tions or response costs addressed in the settlement, if

5 all of the following conditions are met:

6 ‘‘(A) The settling party agrees to perform,

7 or there are other adequate assurances of the per8 formance of, a final remedial action authorized

9 by the Administrator for the release or threat of

10 release that is the subject of the settlement.

11 ‘‘(B) The remedial action does not provide

12 that any hazardous substances will remain at

13 the facility at concentrations above the protective

14 concentration levels established pursuant to sec15 tion 121(d) after the final remedial action is

16 completed.

17 ‘‘(C) The settlement agreement has been

18 reached prior to the commencement of litigation

19 against the settling party under section 106 or

20 107 of this Act with respect to this facility.

21 ‘‘(D) The settling party waives all contribu22 tion rights against other potentially responsible

23 parties at the facility.

24 ‘‘(E) The settling party pays a premium

25 that compensates for the risks of remedy failure;
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1 future liability resulting from unknown condi2 tions; unanticipated increases in the cost of any

3 uncompleted response action, unless the settling

4 party is performing the response action; and the

5 United States litigation risk as provided in sec6 tion 130 with respect to persons who have not re7 solved their liability to the United States under

8 this Act, unless all parties have settled their li9 ability to the United States, or the settlement

10 covers 100 percent of the United States response

11 costs. The President shall have sole discretion to

12 determine the appropriate amount of any such

13 premium, and such determinations are commit14 ted to the President’s discretion. The President

15 has discretion to waive or reduce the premium

16 payment for persons who demonstrate an inabil17 ity to pay such a premium.

18 ‘‘(F) The settlement is otherwise acceptable

19 to the United States.’’.

20 (2) Paragraph (3) is amended to read as follows:

21 ‘‘(3) DISCRETIONARY COVENANTS.—For settle22 ments under this title for which covenants under sec23 tion 122(f)(1) are not available, the President may,

24 in his discretion, provide any person with a covenant

25 not to sue concerning any liability to the United
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1 States under this title, if the covenant not to sue is

2 in the public interest. Such covenants shall be subject

3 to the requirements of section 122(f)(5). The President

4 may include any conditions in such covenant not to

5 sue, including the additional condition referred to in

6 paragraph (5). In determining whether such condi7 tions or covenants are in the public interest, the

8 President shall consider the nature and scope of the

9 commitment by the settling party under the settle10 ment, the effectiveness and reliability of the response

11 action, the nature of the risks remaining at the facil12 ity, the strength of evidence, the likelihood of cost re13 covery, the reliability of any response action or ac14 tions to restore, replace, or acquire the equivalent of

15 injured natural resources, the extent to which per16 formance standards are included in the order or de17 cree, the extent to which the technology used in the re18 sponse action is demonstrated to be effective, and any

19 other factors relevant to the protection of human

20 health and the environment.’’.

21 (3) Such subsection (f) is amended by striking

22 paragraph (4) and redesignating paragraphs (5) and

23 (6) as paragraphs (4) and (5), respectively.

24 (4) Paragraph (2) is amended by striking ‘‘reme25 dial’’ each place it appears and inserting ‘‘response’’.
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1 (5) Subparagraph (A) of paragraph (5) (as so

2 redesignated) is amended—

3 (A) by striking ‘‘remedial’’ and inserting

4 ‘‘response’’;

5 (B) by striking ‘‘paragraph (2)’’ in the first

6 sentence and inserting ‘‘paragraph (1) or (2)’’;

7 (C) by striking ‘‘de minimis settlements’’

8 and inserting ‘‘de minimis and other expedited

9 settlements pursuant to subsection (g) of this sec10 tion’’; and

11 (D) by striking ‘‘the President certifies

12 under paragraph (3) that remedial action has

13 been completed at the facility concerned’’, and

14 inserting ‘‘that the response action that is the

15 subject of the settlement agreement is selected’’.

16 (6) Subparagraph (B) of paragraph (5) (as so

17 redesignated) is amended—

18 (i) by striking ‘‘In extraordinary cir19 cumstances, the’’ and inserting ‘‘The’’;

20 (ii) by striking ‘‘those referred to in

21 paragraph (4) and’’;

22 (iii) by striking ‘‘if other terms,’’ and

23 inserting ‘‘, if the agreement containing the

24 covenant not to sue provides for payment of

25 a premium to address possible remedy fail-
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1 ure or any releases that may result from

2 unknown conditions, and if other terms,’’;

3 and

4 (iv) by inserting at the end the follow5 ing: ‘‘The President may, in his discretion,

6 waive or reduce the premium payment for

7 persons who demonstrate an inability to

8 pay such a premium.’’.

9 SEC. 411. EXPEDITED FINAL SETTLEMENTS.

10 Section 122 is amended as follows:

11 (1) Subsection (g) is amended by striking ‘‘(g)’’

12 and all that follows through the end of subparagraph

13 (A) of paragraph (1) and inserting in lieu thereof the

14 following:

15 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—

16 ‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET17 TLEMENT.—Whenever practicable and in the public

18 interest as determined by the President, the President

19 shall, as promptly as possible, offer to reach a final

20 administrative or judicial settlement with potentially

21 responsible parties who, in the judgment of the Presi22 dent, meet one or more of the following conditions for

23 eligibility for an expedited settlement—

24 ‘‘(A) The potentially responsible party’s in25 dividual contribution of hazardous substances at
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1 the facility is de minimis. The contribution of

2 hazardous substance to a facility by a poten3 tially responsible party is de minimis if both of

4 the following conditions are met:

5 ‘‘(i) The potentially responsible party’s

6 volumetric contribution of materials con7 taining hazardous substances is minimal in

8 comparison to the total volumetric contribu9 tions of materials containing hazardous

10 substances at the facility; such individual

11 contribution is presumed to be minimal if

12 it is one percent or less of the total volu13 metric contribution at the facility, unless

14 the Administrator identifies a different

15 threshold based on site-specific factors.

16 ‘‘(ii) The potentially responsible par17 ty’s hazardous substances do not present

18 toxic or other hazardous effects that are sig19 nificantly greater than those of other haz20 ardous substances at the facility.’’.

21 (2) Subsection (g) is further amended by insert22 ing after subparagraph (B) of paragraph (1) the fol23 lowing:

24 ‘‘(C) The potentially responsible party’s li25 ability is based solely on paragraph (3) or (4)
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1 of section 107(a), and the arrangement for dis2 posal, treatment, or transport for disposal or

3 treatment, or the acceptance for transport for

4 disposal or treatment, involved only municipal

5 solid waste or sewage sludge. The Administrator

6 may offer to settle the liability of generators and

7 transporters of municipal solid waste or sewage

8 sludge whose liability is limited pursuant to

9 paragraph (7) of section 107(a) for up to 10 per10 cent of the total response costs at the facility.

11 ‘‘(D)(i) The potentially responsible party is

12 a natural person, a small business, or a munici13 pality and can demonstrate to the United States

14 a limited ability to pay response costs.

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

16 following provisions apply:

17 ‘‘(I) In the case of a small business, the

18 President shall take into consideration the

19 ability to pay of the business, if requested

20 by the business. The term ‘ability to pay’

21 means the President’s reasonable expecta22 tion of the ability of the small business to

23 pay its total settlement amount and still

24 maintain its basic business operations.

25 Such consideration shall include the
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1 business’s overall financial condition and

2 demonstrable constraints on its ability to

3 raise revenues.

4 ‘‘(II) Any business requesting such con5 sideration shall promptly provide the Presi6 dent with all relevant information needed to

7 determine the business’s ability to pay.

8 ‘‘(III) The business shall demonstrate

9 the amount of its ability to pay. If the busi10 ness employs fewer than 20 employees, and

11 has annual gross revenues of less than

12 $1,800,000 or a net profit margin of less

13 than 2 percent, the President shall perform

14 any analysis that may be required to dem15 onstrate the business’s ability to pay. The

16 President, in his discretion, may perform

17 such analysis for any other party or require

18 such other party to perform the analysis.

19 ‘‘(IV) If the President determines that

20 a small business is unable to pay its total

21 settlement amount immediately, the Presi22 dent shall consider alternative payment

23 methods as may be necessary or appro24 priate. The methods to be considered may
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1 include installment payments and the pro2 vision of in-kind services.

3 ‘‘(iii) For purposes of this subparagraph, in

4 the case of a municipal owner or operator, the

5 President shall consider, to the extent that infor6 mation is provided by the municipality, the fol7 lowing factors:

8 ‘‘(I) the municipality’s general obliga9 tion bond rating and information about the

10 most recent bond issue for which the rating

11 was prepared;

12 ‘‘(II) the amount of total available

13 funds (other than dedicated funds);

14 ‘‘(III) the amount of total operating

15 revenues (other than obligated or encum16 bered revenues);

17 ‘‘(IV) the amount of total expenses;

18 ‘‘(V) the amounts of total debt and debt

19 service;

20 ‘‘(VI) per capita income;

21 ‘‘(VII) real property values;

22 ‘‘(VIII) unemployment information;

23 and

24 ‘‘(IX) population information.
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1 ‘‘(iv) A municipality may also submit for

2 consideration by the President an evaluation of

3 the potential impact of the settlement on essen4 tial services that the municipality must provide,

5 and the feasibility of making delayed payments

6 or payments over time. If a municipality asserts

7 that it has additional environmental obligations

8 besides its potential liability under this Act, then

9 the municipality may create a list of the obliga10 tions, including an estimate of the costs of com11 plying with such obligations.

12 ‘‘(v) A municipality may establish an in13 ability to pay through an affirmative showing

14 that such payment of its liability under this Act

15 would either—

16 ‘‘(I) create a substantial demonstrable

17 risk that the municipality would default on

18 existing debt obligations, be forced into

19 bankruptcy, be forced to dissolve, or be

20 forced to make budgetary cutbacks that

21 would substantially reduce current levels of

22 protection of public health and safety; or

23 ‘‘(II) necessitate a violation of legal re24 quirements or limitations of general appli-
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1 cability concerning the assumption and

2 maintenance of fiscal municipal obligations.

3 ‘‘(vi) This subparagraph does not limit or

4 affect the President’s authority to evaluate any

5 person’s ability to pay or to enter into settle6 ments with any person based on that person’s in7 ability to pay.’’.

8 (3) Paragraphs (2) and (3) of subsection (g) are

9 amended to read as follows:

10 ‘‘(2) BASIS OF DETERMINATION.—Any person

11 who enters into a settlement pursuant to this sub12 section shall provide any information requested by the

13 President or by an allocator in accordance with sec14 tion 130(d)(2) or section 104(e) of this Act. The deter15 mination of whether a person is eligible for an expe16 dited settlement shall be made on the basis of all in17 formation available to the President at the time the

18 determination is made. Such determination, and the

19 settlement, are committed to the President’s discre20 tion. If the President determines not to apply these

21 provisions for expedited settlements at a facility, the

22 President shall explain the basis for that determina23 tion in writing to any person who requests such a set24 tlement.
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1 ‘‘(3) ADDITIONAL FACTORS RELEVANT TO SET2 TLEMENTS WITH MUNICIPALITIES.—In any settlement

3 with a municipality pursuant to this title, the Presi4 dent may take additional equitable factors into ac5 count in determining an appropriate settlement

6 amount, including the limited resources available to

7 that party, and any in-kind services that the party

8 may provide to support the response action at the fa9 cility. In considering the value of in-kind services, the

10 President shall consider the fair market value of those

11 services.’’.

12 (4) Subsection (g) is further amended—

13 (A) in paragraph (4), by striking

14 ‘‘$500,000’’ and inserting ‘‘$2,000,000’’; and

15 (B) by striking paragraph (5).

16 (5) Subsection (h) is amended—

17 (A) by amending the heading to read as fol18 lows: ‘‘AUTHORITY TO SETTLE CLAIMS FOR

19 FINES, CIVIL PENALTIES, PUNITIVE DAMAGES,

20 AND COST RECOVERY.—’’;

21 (B) in paragraph (1)—

22 (i) in the first sentence, by striking

23 ‘‘costs incurred’’ and inserting ‘‘past and

24 future costs incurred or that may be in25 curred’’;
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1 (ii) in the first sentence, by inserting

2 after ‘‘if the claim has not been referred to

3 the Department of Justice for further ac4 tion.’’ the following: ‘‘The head of any de5 partment or agency with the authority to

6 seek fines, civil penalties, or punitive dam7 ages under this Act may consider, com8 promise, and settle claims for any such

9 fines, civil penalties, or punitive damages

10 which may otherwise be assessed in civil ad11 ministrative or judicial proceedings if the

12 claim has not been referred to the Depart13 ment of Justice for further action. If the

14 total claim for fines, civil penalties, or pu15 nitive damages exceeds $300,000, such claim

16 may be compromised and settled only with

17 the prior written approval of the Attorney

18 General.’’; and

19 (iii) in the second sentence, by striking

20 ‘‘$500,000 (excluding interest), any claim

21 referred to in the preceding sentence’’ and

22 inserting ‘‘$2,000,000 (excluding interest),

23 any claim for response costs referred to in

24 this subsection’’; and

25 (C) by striking paragraph (4).
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1 SEC. 412. ALLOCATION PROCEDURES.

2 Insert after section 129 the following new section:

3 ‘‘SEC. 130. ALLOCATION AT MULTIPARTY FACILITIES.

4 ‘‘(a) SCOPE.—

5 ‘‘(1) POST-INTRODUCTION RODS.—For each non6 federally owned facility listed on the National Prior7 ities List involving 2 or more potentially responsible

8 parties for which the President selects a remedial ac9 tion on or after February 3, 1994, the Administrator

10 shall initiate the allocation process under this section.

11 This paragraph shall not apply to response actions

12 selected prior to such date.

13 ‘‘(2) PRE-INTRODUCTION RODS.—For each non14 federally owned facility listed on the National Prior15 ities List involving 2 or more potentially responsible

16 parties, for any remedial action selected by the Presi17 dent before February 3, 1994, the Administrator shall

18 initiate the allocation process under this section, if re19 quested to do so by a potentially responsible party

20 which has resolved its liability to the United States

21 with respect to the remedial action or which is per22 forming the remedial action pursuant to an order is23 sued under section 106(a).

24 ‘‘(3) OTHER FACILITIES.—The Administrator, as

25 the Administrator deems appropriate, may initiate

26 the allocation process under this section for any facil-
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1 ity other than a facility referred to in paragraph (1)

2 or (2) involving 2 or more potentially responsible

3 parties.

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

5 process under this section shall not apply to any of

6 the following:

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

8 final settlement, decree, or order that determines

9 all liability or allocated shares of all potentially

10 responsible parties.

11 ‘‘(B) A facility at which all of the poten12 tially responsible parties are liable or potentially

13 liable as facility owners or operators pursuant to

14 section 107(a)(1) or (2).

15 ‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An alloca16 tion under this section, shall apply to all remedial ac17 tions selected by the President on or after February

18 3, 1994, for a facility (but not to those remedial ac19 tions described in paragraph (2)), unless the allocator

20 determines that the allocation should address only one

21 or more of such remedial actions.

22 ‘‘(6) MULTIPLE FACILITIES.—Where appro23 priate, the Administrator may initiate a single allo24 cation process under this section for more than 1 fa25 cility.
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1 ‘‘(7) EFFECT OF ALLOCATION.—An allocation

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

3 section shall not be construed to require—

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

5 to this section; or

6 ‘‘(B) the conferral of reimbursement rights

7 pursuant to this section.

8 ‘‘(8) SETTLEMENT OFFERS AFTER COMMENCE9 MENT OF LITIGATION.—The provisions of this section

10 shall not apply to any offer of settlement made after

11 expiration of the moratorium period under subsection

12 (b).

13 ‘‘(b) MORATORIUM ON COMMENCEMENT OR CONTINU14 ATION OF SUITS.—

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

16 claim for response costs pursuant to section 107 of

17 this Act or commence any civil action seeking recov18 ery of any response costs in connection with a re19 sponse action for which an allocation is required

20 under subsection (a)(1) or (2), or for which the Ad21 ministrator has initiated an allocation under sub22 section (a)(3), until 90 days after issuance of the

23 allocator’s report under subsection (h) or (m), which24 ever is later.
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1 ‘‘(2) STAY OF EXISTING ACTIONS.—If a claim for

2 response costs pursuant to section 107 of this Act or

3 an action seeking recovery of response costs in connec4 tion with a response action for which an allocation

5 is to be performed under this section is pending—

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

7 Superfund Reform Act of 1994, or

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

9 the action or claim shall be stayed until 90 days after

10 the issuance of the allocator’s report under subsection

11 (h) or (m), unless the court determines that a stay

12 will result in manifest injustice.

13 ‘‘(3) STATUTE OF LIMITATIONS.—Any applicable

14 limitations period with respect to a cause of action

15 subject to paragraph (1) shall be tolled from the ear16 lier of the following until 180 days after the issuance

17 of the allocator’s report under subsection (h) or (m)

18 has been issued by the allocator:

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

20 the National Priorities List.

21 ‘‘(B) The commencement of the allocation

22 process pursuant to this section.

23 ‘‘(c) COMMENCEMENT OF ALLOCATION.—

24 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa25 cilities subject to this section, the Administrator shall,
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1 as soon as practicable, but not later than 60 days

2 after the commencement of the remedial investigation,

3 initiate a thorough investigation and search for all

4 potentially responsible parties, using his authorities

5 under section 104. Any person may submit informa6 tion to the Administrator concerning any potentially

7 responsible party at the facility, and the Adminis8 trator shall consider such information in carrying out

9 the responsible party search.

10 ‘‘(2) NOTIFICATION OF DE MINIMIS PARTIES.—As

11 soon as practicable after receipt of sufficient informa12 tion, but not more than 12 months after the com13 mencement of the remedial investigation, the Admin14 istrator shall take each of the following actions:

15 ‘‘(A) The Administrator shall notify any

16 potentially responsible party who the Adminis17 trator determines is eligible for an expedited

18 final settlement in accordance with section

19 122(g)(1)(A) of its eligibility, based on informa20 tion available to the Administrator at the time

21 the determination is made. Any such informa22 tion that is not confidential shall, to the extent

23 practicable, be made available by the Adminis24 trator to the party at the time of the settlement

25 offer.
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1 ‘‘(B) The Administrator shall submit a

2 written settlement offer to each party notified

3 under subparagraph (A) no later than 60 days

4 after such notification.

5 ‘‘(3) PRELIMINARY NOTICE TO OTHER PAR6 TIES.—As soon as practicable after receipt of suffi7 cient information, but not later than 18 months after

8 commencement of the remedial investigation, the Ad9 ministrator shall—

10 ‘‘(A) notify any party not previously noti11 fied under paragraph (2) who the Administrator

12 determines is eligible for an expedited final set13 tlement in accordance with section 122(g)(1)(A)

14 of its eligibility, based on information available

15 to the Administrator at the time the determina16 tion is made and submit a written settlement

17 offer to each party notified pursuant to this sub18 paragraph no later than 60 days after such noti19 fication;

20 ‘‘(B) issue a list of all potentially respon21 sible parties preliminarily identified by the Ad22 ministrator to all such parties;

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

24 section 117(d), of the list of potentially respon-
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1 sible parties identified pursuant to subpara2 graphs (A) and (B) by the Administrator; and

3 ‘‘(D) make available all responses to the Ad4 ministrator’s information requests, as well as

5 other relevant information concerning the facil6 ity and potentially responsible parties, to the no7 tified parties, to the extent it is available to the

8 Administrator.

9 The Administrator shall not make available any priv10 ileged or confidential information, except as otherwise

11 authorized by law. The Administrator shall take the

12 actions specified in this paragraph within 9 months

13 after the date of enactment of this section for all fa14 cilities eligible for allocation under subsection (a)(1)

15 or (a)(2) for which the responsible party search re16 quired by a paragraph (1) was substantially complete

17 prior to the date of the enactment of this section.

18 ‘‘(4) STATUS OF PARTIES.—At the time of pro19 posing the list of potentially responsible parties under

20 paragraph (3), the Administrator shall—

21 ‘‘(A) identify parties that are eligible for ex22 pedited settlement pursuant to section 122(g);

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

24 for such expedited settlement; or
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1 ‘‘(C) determine that there is insufficient in2 formation to ascertain whether or not the party

3 is entitled to such expedited settlement.

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

5 after information has been made available pursuant

6 to paragraph (3), the parties identified by the Admin7 istrator and members of the affected community shall

8 have the opportunity to identify and nominate addi9 tional potentially responsible parties or otherwise

10 provide information relevant to the facility or such

11 potentially responsible parties. This period may be

12 extended by the Administrator for an additional 30

13 days upon request of any person.

14 ‘‘(B) Any proposal for the addition of any poten15 tially responsible party shall be supported by full dis16 closure to the Administrator of all available informa17 tion concerning that party’s liability and contribu18 tion of hazardous substances to the site.

19 ‘‘(6) LIST OF ALLOCATION PARTIES.—(A) Within

20 60 days after the end of the period specified in para21 graph (5)(A) for the proposal of additional parties,

22 the Administrator shall—

23 ‘‘(i) issue a list of parties subject to the allo24 cation process (hereinafter referred to in this sec25 tion as the ‘allocation parties’);
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1 ‘‘(ii) identify in writing, as to each of the

2 proposed additional parties, which parties the

3 Administrator has determined, in the Adminis4 trator’s sole discretion:

5 ‘‘(I) to be eligible for expedited settle6 ment pursuant to section 122(g),

7 ‘‘(II) not to be eligible for such expe8 dited settlement, and

9 ‘‘(III) for whom insufficient informa10 tion exists to determine whether or not the

11 party is eligible for such expedited settle12 ment; and

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

14 brief explanation) those parties as to which the

15 Administrator has determined, in the Adminis16 trator’s sole discretion, that there is an inad17 equate basis in law or fact to determine that the

18 party is potentially liable.

19 For each party identified under clause (iii), the Ad20 ministrator shall further identify whether that party,

21 if liable, would be eligible for an expedited settlement.

22 ‘‘(B) At the time of issuance of the list of parties

23 provided for in subparagraph (A), the Administrator

24 shall provide the potentially responsible parties who

25 received notice under this paragraph with a list of
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1 neutral parties who are not employees of the United

2 States and who the Administrator determines, in the

3 Administrator’s sole discretion, are qualified to per4 form an allocation at the facility.

5 ‘‘(C) De minimis parties the Administrator iden6 tifies as potentially liable but entitled to expedited

7 settlement pursuant to this section, shall not be sub8 ject to, or assigned a share in, the allocation (except

9 to the extent required to determine the orphan share

10 pursuant to subsection (h)), unless that party fails to

11 reach an agreement with the President on settlement

12 terms within 30 days after the offer.

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

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

15 a party is liable based on the information presented

16 by the nominating party or otherwise available to the

17 Administrator, the determination shall have the fol18 lowing effect:

19 ‘‘(i) With respect to a party that the Ad20 ministrator has determined to be—

21 ‘‘(I) exempt from liability pursuant to

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

23 ‘‘(II) not liable on some other basis but

24 who, if liable, would be eligible for an expe25 dited settlement,
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1 the Administrator’s determination shall mean

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

3 not be assigned a share in, the allocation.

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

5 Administrator’s determination shall be accorded

6 deference by the allocator. For such parties the

7 allocator shall consider the Administrator’s de8 termination together with the allocation factors

9 listed in subsection (h)(2).

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

11 purposes of this subsection shall not be subject to judi12 cial review, nor shall any determination or expla13 nation provided for purposes of the allocation be ad14 missible for any purpose in an action commenced by

15 the United States against the party that is the subject

16 of the determination or any other party.

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

18 any party the allocator deems should receive such a

19 share in consideration of the allocation factors includ20 ing the Administrator’s determinations under sub21 paragraph (C).

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

23 pursuant to the nomination of a potentially respon24 sible party pursuant to subsection (c)(5), but assigned

25 a zero share by the allocator, that party’s costs of par-
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1 ticipating in the allocation (including reasonable at2 torneys’ fees) shall be borne by the party who pro3 posed the addition of the party to the allocation.

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

5 30 days after the final list of parties is issued pursuant

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

7 submit a written settlement offer to any party identified

8 as a potentially responsible party pursuant to this section

9 who the Administrator has determined to be eligible for an

10 expedited final settlement in accordance with section

11 122(g)(1)(A), and who has not entered into a settlement

12 with the United States regarding the matters being ad13 dressed by the allocation.

14 ‘‘(2) The President shall not include any premia pur15 suant to section 122(g) in a settlement offer made pursuant

16 to paragraph (1) more than 60 days after the date the offer

17 is required to be made pursuant to paragraph (1) to a party

18 that is a small business, as defined in section 101(47).

19 ‘‘(e) SELECTION OF ALLOCATOR.—

20 ‘‘(1) PROPOSAL OF ADDITIONAL CANDIDATES.—

21 Any party identified by the Administrator under sub22 section (c) may propose any person whom such party

23 deems qualified for selection as an allocator in addi24 tion to those proposed from the list provided under

25 subsection (c)(6)(B).
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1 ‘‘(2) SELECTION OF ALLOCATOR BY ALLOCATION

2 PARTIES.—(A) The allocation parties shall select an

3 allocator from the list of allocators proposed by the

4 Administrator or under paragraph (1) by the follow5 ing voting method with each allocation party having

6 a single vote:

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

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

11 with a ranking of 1 indicating first preference,

12 and forward its vote to the Administrator within

13 30 days of the issuance of the final list of

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

15 ‘‘(ii) The proposed allocator who receives the

16 lowest combined numerical score, taking into ac17 count all votes submitted to the Administrator

18 pursuant to clause (i), and who agrees to serve

19 as allocator, shall be determined to be the allo20 cator.

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

22 identified but insolvent or defunct parties.

23 ‘‘(3) PEREMPTORY STRIKE.—The Administrator

24 may reject any allocator selected by the allocation

25 parties if the proposed allocator is not on the list pro-
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1 vided under paragraph (6)(B) of subsection (c). In the

2 case of any such rejection, the allocation parties shall

3 select the allocator in order of numerical ranking in

4 accordance with this subsection.

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

6 allocation parties do not select an allocator pursuant

7 to this subsection within 30 days after receipt of the

8 list provided under paragraph (2), the Administrator

9 shall select the allocator, except that if the Adminis10 trator rejects 4 or more allocators selected by the allo11 cation parties, the Administrator shall initiate a new

12 allocator selection process under this section.

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

14 the Administrator shall enter into a contract with the se15 lected allocator for the provision of allocation services, and

16 immediately make available all responses to information re17 quests, as well as other relevant information concerning the

18 facility and potentially responsible parties, to the allocator.

19 The Administrator has the authority to use the procedures

20 set forth in section 109(e) to obtain the services of a neutral

21 professional for use in conducting allocation procedures

22 under this section, whether or not the neutral professional

23 actually conducts such allocation procedures.

24 ‘‘(g) POTENTIALLY RESPONSIBLE PARTY SETTLE25 MENT.—At any time prior to the issuance of an allocation
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1 report as described in subsection (h), any group of poten2 tially responsible parties may submit to the allocator a pri3 vate allocation for the remedial action. If such private allo4 cation meets all of the following criteria, the allocator shall

5 promptly adopt it as the allocation report:

6 ‘‘(1) The private allocation is a binding alloca7 tion of 100 percent of the past, present, and future re8 coverable costs of the remedial action or operable unit.

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

10 share of response costs to any person who is not a sig11 natory to the proposed private allocation or, in the

12 case of any orphan share, unless the United States is

13 a signatory to the proposed private allocation.

14 ‘‘(3) The signatories to the proposed private allo15 cation waive their contribution rights with respect to

16 the remedial action against all other potentially re17 sponsible parties at the facility.

18 ‘‘(h) ALLOCATION DETERMINATION.—

19 ‘‘(1) SETTLEMENT AND ALLOCATION REPORT.—

20 Following issuance of the final list of allocation par21 ties pursuant to subsection (c)(6)(A)(i), the allocator

22 shall initiate and conduct an allocation process that

23 shall culminate in the issuance of a written report,

24 with a nonbinding, equitable allocation of the percent25 age shares of responsibility of all allocation parties,
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1 including the orphan share, for the facility, and pro2 vide such report to the allocation parties and the Ad3 ministrator. The allocator shall provide the report to

4 the allocation parties and the Administrator within

5 180 days of the issuance of the list of allocation par6 ties pursuant to subsection (c)(6) or the date of the

7 contract for allocation service pursuant to subsection

8 (f), whichever is later. Upon request, for good cause

9 shown, the Administrator may grant the allocator ad10 ditional time to complete the allocation, not to exceed

11 90 days.

12 ‘‘(2) FACTORS IN THE ALLOCATION.—The allo13 cator shall prepare a nonbinding, equitable allocation

14 of percentage shares for the facility based on the fol15 lowing factors:

16 ‘‘(A) The amount of hazardous substances

17 contributed by each allocation party.

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

19 substances contributed by each allocation party.

20 ‘‘(C) The mobility of hazardous substances

21 contributed by each allocation party.

22 ‘‘(D) The degree of involvement of each allo23 cation party in the generation, transportation,

24 treatment, storage, or disposal of the hazardous

25 substance.
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1 ‘‘(E) The degree of care exercised by each al2 location party with respect to the hazardous sub3 stance, taking into account the characteristics of

4 the hazardous substance.

5 ‘‘(F) The cooperation of each allocation

6 party in contributing to the response action and

7 in providing complete and timely information

8 during the allocation process.

9 ‘‘(G) Such other factors that the Adminis10 trator determines are appropriate by published

11 guidance. Any such guidance shall be consistent

12 with this Act and shall be published only after

13 notice and opportunity for public comment. An

14 alleged failure of the allocator to consider 1 or

15 more additional factors set forth in such guid16 ance shall not be deemed unlawful conduct or

17 procedural error for purposes of subsection (l)(2)

18 or (3).

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

20 allocator shall conduct the allocation process and

21 render a decision based solely on the provisions of this

22 section, including the allocation factors specified in

23 paragraph (2). Each party to the allocation shall be

24 afforded an opportunity to be heard (either orally or

25 in writing, at the allocator’s discretion), and an op-
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1 portunity to comment on a draft allocation report.

2 The allocator shall not be required to respond to com3 ments.

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

5 ‘‘(A) COMPONENTS OF ORPHAN SHARE.—

6 The allocator may determine that a percentage

7 share for the facility is specifically attributable

8 to an orphan share. The orphan share shall con9 sist only of the following:

10 ‘‘(i) Shares attributable to hazardous

11 substances that the allocator determines, on

12 the basis of information presented, to be

13 specifically attributable to identified but in14 solvent or defunct allocation parties who are

15 not affiliated with any viable allocation

16 party.

17 ‘‘(ii) The difference between the aggre18 gate shares that the allocator determines, on

19 the basis of the information presented, is

20 specifically attributable to allocation parties

21 that are contributors of municipal solid

22 waste subject to the limitations in section

23 107(a)(6), and the share actually assumed

24 by those parties in any settlements with the

25 United States pursuant to section 122(g),
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1 including the fair market value of in-kind

2 services provided by a municipality.

3 ‘‘(iii) The difference between the aggre4 gate share that the allocator determines, on

5 the basis of information presented, to be

6 specifically attributable to allocation parties

7 with a limited ability to pay response costs

8 and the share actually assumed by those

9 parties in any settlements with the United

10 States pursuant to section 122(g).

11 ‘‘(B) UNATTRIBUTABLE SHARES.—Shares

12 attributable to hazardous substances that the al13 locator cannot attribute to any identified party

14 shall be distributed among the allocation parties,

15 including the orphan share.

16 ‘‘(i) ANSWERS AND CERTIFICATIONS TO ALLOCATOR’S

17 INFORMATION REQUESTS.—

18 ‘‘(1) SUBPOENAS AND INFORMATION RE19 QUESTS.—Where necessary to assist in determining

20 the allocation of shares, the allocator may request in21 formation or documents from any allocation party in

22 accordance with paragraphs (2) or (5) of section

23 104(e), and require by subpoena the attendance of

24 persons or the production of documents, or other in25 formation in accordance with section 104(e)(7). Any
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1 allocation party to whom a request is directed shall

2 include in the response a certification by a respon3 sible representative or authorized representative that

4 satisfies the requirement of section 104(e)(3). The al5 locator may also request the Administrator to utilize

6 the authorities of paragraph (2) and to exercise any

7 information-gathering authority of the Administrator

8 under this Act.

9 ‘‘(2) POWERS OF THE ALLOCATOR.—In addition

10 to the information-gathering authority set forth in

11 paragraph (1), the allocator shall have the authority

12 to schedule meetings and require the attendance of al13 location parties at such meetings; to require that allo14 cation parties wishing to present similar legal or fac15 tual positions consolidate their presentations; to ob16 tain or employ support services, including secretarial

17 and clerical services, computer support services, and

18 legal and investigative services; and to take any other

19 actions necessary to conduct a fair, efficient, and im20 partial allocation process.

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

22 ‘‘(1) CIVIL PENALTIES.—Where the allocator is23 sues an administrative subpoena or information re24 quest pursuant to subsection (i), a party who unrea25 sonably fails to comply with the subpoena or request
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1 shall be subject to a civil penalty not to exceed

2 $25,000 for each day of noncompliance.

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

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

6 shall seek such enforcement by requesting that the At7 torney General commence an action to enforce the

8 subpoena or request. The Attorney General, within 30

9 days after receiving such request from the allocator,

10 shall—

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

12 General will commence an action to enforce the

13 subpoena or information request;

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

15 General will not seek enforcement of the sub16 poena or request because the subpoena or request

17 is barred by law or would result in annoyance,

18 embarrassment, oppression, or undue burden or

19 expense to the party to whom it was issued; or

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

21 General has insufficient information on which to

22 determine whether an enforcement action is ap23 propriate.

24 ‘‘(3) FAILURE OF ATTORNEY GENERAL TO RE25 SPOND.—If the Attorney General fails to provide any
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1 response to the allocator within 30 days of a request

2 for enforcement of a subpoena or information request,

3 the allocator may retain counsel to commence a civil

4 action to enforce the subpoena or information request.

5 ‘‘(4) PENALTY.—If the Attorney General or allo6 cator prevails in an action to enforce an allocator’s

7 subpoena or information request, the party who failed

8 to comply shall be subject to a sanction that may in9 clude civil penalties as provided in paragraph (1).

10 The court shall require such party to pay the reason11 able expenses, including attorney’s fees, caused by the

12 failure to comply, unless the court finds that the fail13 ure was substantially justified or that other cir14 cumstances make an award of expenses unjust.

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

16 makes any false material statement or representation

17 in the response to an allocator’s information request

18 or subpoena issued pursuant to subsection (i) shall be

19 deemed to have made a false statement on a matter

20 within the jurisdiction of the United States within

21 the meaning of section 1001 of title 18, United States

22 Code.

23 ‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIALITY.—
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1 ‘‘(1) DOCUMENT REPOSITORY.—The allocator

2 shall establish and maintain a document repository

3 containing copies of all documents and information—

4 ‘‘(A) provided by the Administrator pursu5 ant to this section,

6 ‘‘(B) provided or generated by the allocation

7 parties, or

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

9 allocation.

10 The documents and information in the document re11 pository shall be available only to the parties to the

12 allocation process for review and copying at their

13 own expense, subject to the confidentiality provisions

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

15 the allocator all information obtained under section

16 104(e), including information entitled to protection

17 under section 1905 of title 18, United States Code, or

18 exempt from disclosure pursuant to section 552(a) of

19 title 5, United States Code. An allocation party shall

20 not assert any privilege as a basis for withholding

21 any information from the allocator.

22 ‘‘(2) CONFIDENTIALITY.—All documents and ma23 terials submitted to the allocator or placed in the doc24 ument repository, together with the record of any in25 formation generated or obtained during the allocation
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1 process, shall be confidential. The allocator, each allo2 cation party, the Administrator, and the Attorney

3 General shall maintain such documents and mate4 rials, together with the record of any information gen5 erated or obtained during the allocation, as confiden6 tial and are prohibited from using any such material

7 in any other matter or proceeding, and shall not be

8 subject to disclosure under section 552 of title 5, Unit9 ed States Code. Such material shall not be discover10 able or admissible in any other Federal, State, or

11 local judicial or administrative proceedings, except—

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

14 or

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

17 Nothing in this section shall be construed to authorize

18 any person, including the allocator, to withhold any

19 documents or information from Congress, or any duly

20 authorized Committee thereof, or limit in any manner

21 the right of Congress, or any duly authorized Com22 mittee thereof, to obtain such documents or informa23 tion. Any person disclosing such documents or infor24 mation to Congress shall notify the person who pro-
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1 duced such documents or information of the fact of

2 such disclosure pursuant to paragraph (5).

3 ‘‘(3) DISCOVERABILITY AND ADMISSIBILITY.—

4 Notwithstanding the foregoing, if the original of any

5 document or material submitted to the allocator or

6 placed in the document repository was, in the hands

7 of the party which provided it, otherwise discoverable

8 or admissible, then such original document, if subse9 quently sought from such party, shall remain so. If a

10 fact generated or obtained during the allocation was,

11 in the hands of a witness, otherwise discoverable or

12 admissible, then such fact, if subsequently sought from

13 such other party, shall remain so.

14 ‘‘(4) NO WAIVER OF PRIVILEGE.—The submission

15 of, documents, or information pursuant to the alloca16 tion process shall not be deemed to be a waiver of any

17 privilege, applicable to such documents or informa18 tion under any Federal or State law or rule of discov19 ery or evidence.

20 ‘‘(5) PROCEDURE WHEN DISCOVERY IS

21 SOUGHT.—Any person, including the United States

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

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

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

2 and, except in the case of a request from the Congress

3 or a duly authorized committee thereof, shall provide

4 such submitting person the opportunity to assert and

5 defend the confidentiality of such item. No person

6 shall release or provide a copy of the item to any per7 son not a party to such allocation, other than the

8 Congress or a duly authorized committee thereof, ex9 cept as may be required by court order.

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

12 the confidentiality of any statements, documents or

13 information generated or obtained during an alloca14 tion proceeding, or who releases any such information

15 in violation of this section shall be subject to civil

16 penalties of up to $25,000 per violation. Such pen17 alties may be sought in a civil action initiated by the

18 Attorney General on behalf of the United States, or

19 any allocation party adversely affected by the failure

20 to maintain confidentiality.

21 ‘‘(l) REJECTION OF ALLOCATOR’S REPORT.—The Ad22 ministrator and the Attorney General of the United States

23 may reject the allocator’s report if they jointly determine

24 that—
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1 ‘‘(1) no rational interpretation of the facts before

2 the allocator, in light of the factors required to be con3 sidered, would form a reasonable basis for the shares

4 assigned to the parties;

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

6 unlawful conduct; or

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

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

10 States has accepted a settlement offer (excluding de minimis

11 or other expedited settlements under section 122(g)) based

12 on the allocation. The Administrator and the Attorney Gen13 eral shall make any such determination within 180 days

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

15 report. The determinations of the Administrator and the At16 torney General under this subsection shall not be judicially

17 reviewable. No such determination may be delegated to any

18 officer or employee of the Environmental Protection Agency

19 or the Department of Justice below the level of an Assistant

20 Secretary or Acting Assistant Secretary with authority for

21 implementing this Act at the Environmental Protection

22 Agency or the Department of Justice.

23 ‘‘(m) SECOND ALLOCATION.—If the United States re24 jects an allocator’s report, the parties shall select a new allo25 cator pursuant to subsection (e) to perform, on an expedited
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1 basis, a new allocation based on the same record available

2 to the first allocator. The moratorium on commencement

3 of litigation and tolling of statutes of limitation set forth

4 in subsection (b) shall be extended until 90 days after the

5 issuance of the second allocation report. If the United States

6 rejects the second allocation the President may, following

7 the expiration of the moratorium on commencement of liti8 gation, commence an action under section 107.

9 ‘‘(n) NEW INFORMATION.—Any settling party, includ10 ing the United States, may seek a new allocation pursuant

11 to subsection (h), where that party presents clear and con12 vincing information or the United States otherwise deter13 mines on the basis of clear and convincing information

14 that—

15 ‘‘(1) the allocator did not have information con16 cerning 35 percent or more of the materials contain17 ing hazardous substances at the facility, and that this

18 information has been discovered subsequent to the is19 suance of the allocator’s report; or

20 ‘‘(2) the allocator did not have information con21 cerning a person not subject to the allocation who

22 contributed 15 percent or more of materials contain23 ing hazardous substances at the facility, and that this

24 information has been discovered subsequent to the is25 suance of the allocator’s report.
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1 Determinations by the United States pursuant to this sub2 section shall not be subject to judicial review.

3 ‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—

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

5 days after issuance of the allocator’s report for an al6 location conducted under subsection (a)(1), an alloca7 tion party—

8 ‘‘(A) makes a written offer to settle with re9 spect to the response action based on the percent10 age share specified by the allocator and on the

11 additional terms and conditions of settlement

12 (other than the allocated percentage share) that

13 are acceptable to the President, and

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

15 requests under this Act,

16 then the President shall not seek a higher percentage

17 share other than the premia authorized by this sec18 tion, unless the President has rejected the offer on a

19 basis other than the percentage share, or unless the

20 Administrator and the Attorney General have rejected

21 the allocation report pursuant to subsection (l).

22 ‘‘(2) EXPLANATION OF REFUSAL TO SETTLE.—If

23 the Administrator and the Attorney General deter24 mine not to settle on the basis of the allocation, they

25 shall provide the allocation parties and members of
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1 the affected community with a written explanation of

2 the Administrator’s determination.

3 ‘‘(3) SETTLEMENT PROVISIONS.—Settlements

4 based on allocated shares shall include each of the fol5 lowing:

6 ‘‘(A) A waiver of contribution rights

7 against all parties who are potentially respon8 sible parties for the response action, as well as

9 a waiver of any rights to challenge any settle10 ment the President enters into with any other

11 potentially responsible party.

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

13 section 122(f), and provisions regarding perform14 ance or adequate assurance of performance of re15 sponse actions addressed in the settlement.

16 ‘‘(C) A premium determined on a site spe17 cific basis and subject to the limitations set forth

18 in paragraph (4), that compensates for the Unit19 ed States litigation risk with respect to poten20 tially responsible parties who have not resolved

21 their liability to the United States, except that

22 no such premium shall apply if all parties settle

23 or the settlement covers 100 percent of response

24 costs.
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1 ‘‘(D) Contribution protection, consistent

2 with section 113(f), regarding matters addressed

3 in the settlement. Such settlement does not dis4 charge any of the other potentially responsible

5 parties unless its terms so provide, but it reduces

6 the potential liability of the others by the

7 amount of the settlement.

8 ‘‘(E) Provisions through which the settling

9 parties shall receive reimbursement from the

10 Fund for any response costs incurred by such

11 parties in excess of the aggregate of their allo12 cated share and any premia required by the set13 tlement. Such right to reimbursement shall not

14 be contingent on the United States recovery of

15 response costs from any responsible person not a

16 party to any settlement with the United States.

17 ‘‘(4) The premium authorized by paragraph

18 (3)(C) for litigation risk shall not exceed the follow19 ing:

20 ‘‘(A) Five percent of the total costs assumed

21 by a settling party, where settlements (and any

22 orphan share identified by the allocator) account

23 for 80 percent or more of responsibility at the fa24 cility.
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1 ‘‘(B) Ten percent of the total costs assumed

2 by a settling party, where settlements (and any

3 orphan share identified by the allocator) account

4 for more than 60 percent and less than 80 per5 cent of responsibility at the facility.

6 ‘‘(C) Fifteen percent of the total costs as7 sumed by a settling party, where settlements

8 (and any orphan share identified by the allo9 cator) account for more than 40 percent and less

10 than 60 percent of responsibility at the facility.

11 ‘‘(D) Twenty percent of the total costs as12 sumed by a settling party, where settlements

13 (and any orphan share identified by the allo14 cator) account for 40 percent or less of respon15 sibility at the facility.

16 The Administrator shall have authority to promulgate

17 regulations to modify the premia percentages estab18 lished in this subsection. The Administrator may not

19 propose a rule before the date 36 months after the en20 actment of this section, and no such rule may take ef21 fect before the date 48 months after the enactment of

22 this section. Such rule must be based upon an admin23 istrative record establishing that such modification is

24 necessary to reflect actual experience regarding the
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1 litigation risk faced by the United States in proceed2 ing against nonsettling parties under this section.

3 ‘‘(5) AUTHORIZATION OF REIMBURSEMENT.—In

4 any settlement in which a party agrees to perform re5 sponse work in excess of its share, the Administrator

6 shall have authority to carry out his duty to reim7 burse settling parties under this section pursuant to

8 such reasonable procedures as the Administrator may

9 prescribe.

10 ‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis11 trator shall require all claims for reimbursement to be

12 supported by—

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

15 ‘‘(B) sufficient information to enable the

16 Administrator to determine whether such costs

17 were reasonable.

18 The Administrator may require independent auditing of

19 any claim for reimbursement.

20 ‘‘(p) POST-ALLOCATION LITIGATION.—

21 ‘‘(1) IN GENERAL.—The United States may com22 mence an action under section 107 against any per23 son liable under that section who has not resolved its

24 liability to the United States following allocation, on

25 or after 90 days following issuance of the allocator’s
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1 report. In any such action, such person shall be liable

2 in accordance with section 107 for all response costs

3 not recovered through settlements with other persons.

4 Such recoverable costs shall include any federally

5 funded orphan share identified in accordance with

6 subsection (h), but shall not include any shares allo7 cated to Federal, State, or local governmental agen8 cies, departments, or instrumentalities. Defendants in

9 any such action may implead only allocation parties

10 who did not resolve their liability to the United

11 States. The Administrator and the Attorney General

12 shall issue guidelines to ensure that the relief sought

13 against de minimis parties under principles of joint

14 and several liability will not be grossly disproportion15 ate to their contribution to the facility. The applica16 tion of such guidelines is committed to the discretion

17 of the Administrator and the Attorney General.

18 ‘‘(2) CERTIFICATION.—In commencing any ac19 tion under section 107 following allocation, the Attor20 ney General must certify, in the complaint, that the

21 United States has been unable to reach a settlement

22 that would be in the best interests of the United

23 States. This certification shall not be subject to judi24 cial review.
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1 ‘‘(3) DEFENDANTS.—No person may commence

2 an action under section 107 or otherwise seek con3 tribution against any person who was not identified

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

5 subsequently identified as a potentially liable party

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

7 ‘‘(4) ADMISSIBILITY OF ALLOCATOR’S REPORT.—

8 The allocator’s report shall not be admissible in any

9 court for any purpose, except as set forth in this sec10 tion. The allocator’s report, subject to the rules and

11 discretion of the court, may be admissible solely for

12 the purpose of assisting the court in making an equi13 table allocation of response costs among the relative

14 shares of nonsettling liable parties.

15 ‘‘(5) COSTS OF ALLOCATION PROCEDURE ON OR16 PHAN SHARE.—

17 ‘‘(A) INCLUDED AS COSTS OF RESPONSE.—

18 The costs of implementing the allocation proce19 dure set forth in this section, including reason20 able fees and expenses of the allocator, shall be

21 considered necessary costs of response for pur22 poses of this Act.

23 ‘‘(B) ORPHAN SHARE.—The costs attrib24 utable to any funding of orphan shares identified

25 by the allocator pursuant to subsection (e)(4)
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1 also shall be considered necessary costs of re2 sponse for purposes of this Act, and shall be re3 coverable from liable parties who do not resolve

4 their liability on the basis of the allocation.

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

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

7 if the United States has rejected an offer of settlement

8 that is consistent with subsection (o) and that was

9 presented to the United States prior to the expiration

10 of the moratorium period set forth in subsection (b),

11 the offeror shall be entitled to recover from the United

12 States the offeror’s reasonable costs of defending the

13 action after the making of the offer (including reason14 able attorneys’ fees) if the ultimate resolution of li15 ability or allocation of costs with respect to the offeror

16 (taking into account all settlements and reimburse17 ments with respect to the facility other than those at18 tributable to insurance or indemnification), is as, or

19 more, favorable to the offeror than the offer based on

20 the allocation.

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

22 ‘‘(1) REIMBURSEMENT.—Parties who satisfac23 torily perform work under an administrative order

24 issued under section 106(a) with respect to a remedial

25 action for which an allocation is required by sub-
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1 section (a)(1), shall be entitled to reimbursement for

2 the reasonable and necessary costs of work they per3 form in excess of the share assigned to them in the al4 location in accordance with the provisions of this sec5 tion, provided that the allocation report is not re6 jected by the United States and, that, at the end of

7 the moratorium following the allocation, the perform8 ing party, in consideration of such reimbursement—

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

10 response costs not inconsistent with the National

11 Contingency Plan to the extent of the allocated

12 share;

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

14 ‘‘(C) agrees that its reimbursement shall be

15 reduced by an amount equal to the maximum

16 litigation risk premium provided for in sub17 section (o)(4) based on the total allocated shares

18 of the allocation parties who have not reached

19 settlements with the United States by the end of

20 the moratorium on commencement of actions

21 provided in subsection (b);

22 ‘‘(D) waives contribution rights against all

23 parties who are potentially responsible parties

24 for the response action, as well as waives any

25 rights to challenge any settlement the President
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1 enters into with any other potentially responsible

2 party.

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

5 share is subject to equitable offset or reduction by the

6 Administrator upon a finding of a failure to perform

7 any aspect of the remedy in a proper and timely

8 manner.

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

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

12 no sooner than completion of the construction of the

13 remedial action.

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

15 amount of orphan share funding available to the per16 forming party shall be further limited as follows:

17 ‘‘(A) Performing parties who fully waive

18 their right to challenge remedy selection at the

19 end of the moratorium following allocation shall

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

22 allocator to the orphan share paid in nominal

23 dollars after the work is completed, but no sooner

24 than completion of the construction of the reme25 dial action.
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1 ‘‘(B) Performing parties who retain their

2 right to challenge the remedy shall be reimbursed

3 for 90 percent of orphan share funding, paid in

4 nominal dollars after the work is completed, but

5 no sooner than completion of the construction of

6 the remedial action, unless the orphan share is

7 less than 20 percent of responsibility at the site,

8 in which case such parties shall be reimbursed

9 only 80 percent of the orphan share.

10 For purposes of this subsection ‘nominal dollars’

11 means actual dollars spent by the performing party,

12 without increase for interest or inflation.

13 ‘‘(5) NONORPHAN SHARE REIMBURSEMENT.—Re14 imbursement for work in excess of the performing

15 party’s allocated share but that is not attributable to

16 the orphan share shall be paid in nominal dollars

17 after work is completed, but no sooner than comple18 tion of the construction of the remedial action, pro19 vided that the performing party is entitled to all in20 terest (prejudgment and post judgment, whether recov21 ered from a party or earned in a site account) that

22 has accrued on money recovered by the United States

23 from other parties for such work at the time construc24 tion of the remedy is completed.
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1 ‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis2 trator shall require that all claims for reimbursement

3 be supported by—

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

6 ‘‘(B) sufficient information to enable the

7 Administrator to determine whether such costs

8 were reasonable.

9 The Administrator may require independent auditing

10 of any claim for reimbursement.

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

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

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

15 incurred and equitably attributable to orphan shares deter16 mined pursuant to this section, provided that Fund financ17 ing of orphan shares shall not exceed $300,000,000 in any

18 fiscal year. Reimbursements made under this subsection

19 shall be subject to such terms and conditions as the Presi20 dent may prescribe.

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

23 (or guidance) of Agency organization, procedure, and prac24 tices but shall not have additional authority, except as spe25 cifically set forth in this section, to promulgate rules or pub-
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1 lish guidance to restrict the allocator’s discretion in the con2 duct of the allocation.

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

5 potentially responsible parties shall be subject to, and be

6 entitled to the benefits of, the allocation process provided

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

8 ‘‘(u) REPRESENTATION OF THE UNITED STATES AND

9 AFFECTED STATES.—The Administrator and the Attorney

10 General, and a representative of any State that may be re11 sponsible for a portion of the orphan share, shall be entitled

12 to review all documents and participate in any phase of

13 the allocation proceeding.

14 ‘‘(v) ANNUAL REPORT.—The President shall report an15 nually to Congress on the administration of the allocation

16 scheme under this section, and provide information com17 paring allocation results with actual settlements at

18 multiparty facilities.

19 ‘‘(w) SAVINGS PROVISIONS.—(1) Nothing in this sec20 tion shall in any way limit or affect the President’s author21 ity to exercise the powers conferred by section 103, 104, 105,

22 106, or 122 of this title, or to commence an action against

23 a party where there is a contemporaneous filing of a judi24 cial consent decree resolving that party’s liability; or to file
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1 a proof of claim or take other action in a proceeding under

2 title 11 of the United States Code.

3 ‘‘(2) The procedures established in this section shall not

4 be construed to modify or affect in any way the principles

5 of retroactive, strict, joint and several liability under this

6 title.

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

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

9 an allocation for facilities that have been the subject

10 of partial or expedited settlements;

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

12 party at a facility to resolve its liability to the Unit13 ed States or other parties at any time before initi14 ation or completion of the allocation process;

15 ‘‘(C) the validity, enforceability, finality, or mer16 its of any judicial or administrative order, judgment,

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

18 with respect to liability under this Act or that author19 izes modification of any such order, judgment or de20 cree; or

21 ‘‘(D) the validity, enforceability, finality or mer22 its of any preexisting contract or agreement relating

23 to any allocation of responsibility or any sharing of

24 response costs under this Act.’’.
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1 SEC. 413. RECYCLING TRANSACTIONS.

2 (a) PURPOSES.—The purposes of this section are—

3 (1) to promote the reuse and recycling of scrap

4 material in furtherance of the goals of waste mini5 mization and natural resource conservation while

6 protecting human health and the environment;

7 (2) to level the playing field between the use of

8 virgin materials and recycled materials; and

9 (3) to remove the disincentives and impediments

10 to recycling because of potential liability.

11 (b) CLARIFICATION OF LIABILITY UNDER CERCLA

12 FOR RECYCLING TRANSACTIONS.—Title I is amended by

13 adding after section 128 the following new section:

14 ‘‘SEC. 129. RECYCLING TRANSACTIONS.

15 ‘‘(a) LIABILITY CLARIFICATION.—As provided in sub16 sections (b), (c), (d) and (e), a person who arranged for

17 the recycling of recyclable material shall not be liable under

18 section 107(a)(3) or 107(a)(4).

19 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur20 poses of this section, the term ‘recyclable material’ means

21 scrap paper, scrap plastic, scrap glass, scrap textiles, scrap

22 rubber (other than whole tires), scrap metal, or spent lead23 acid, spent nickel-cadmium and other spent batteries, as

24 well as minor amounts of material incident to or adhering

25 to the scrap material as a result of its normal and cus26 tomary use prior to becoming scrap.
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1 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER, PLAS2 TIC, GLASS, TEXTILES, OR RUBBER.—Transactions involv3 ing scrap paper, scrap plastic, scrap glass, scrap textiles,

4 or scrap rubber (other than whole tires) shall be deemed to

5 be arranging for recycling if the person who arranged for

6 the transaction (by selling recyclable material or otherwise

7 arranging for the recycling of recyclable material) can dem8 onstrate by a preponderance of the evidence that all of the

9 following criteria were met at the time of the transaction:

10 ‘‘(1) The recyclable material met a commercial

11 specification grade.

12 ‘‘(2) A market existed for the recyclable material.

13 ‘‘(3) A substantial portion of the recyclable mate14 rial was made available for use as a feedstock for the

15 manufacture of a new saleable product.

16 ‘‘(4) The recyclable material could have been a

17 replacement or substitute for a virgin raw material,

18 or the product to be made from the recyclable mate19 rial could have been a replacement or substitute for

20 a product made, in whole or in part, from a virgin

21 raw material.

22 ‘‘(5) For transactions occurring 90 days or more

23 after the date of enactment of this section, the person

24 exercised reasonable care to determine that the facility

25 where the recyclable material would be handled, proc-
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1 essed, reclaimed, or otherwise managed by another

2 person (hereinafter in this section referred to as a

3 ‘consuming facility’) was in compliance with sub4 stantive (not procedural or administrative) provisions

5 of any Federal, State, or local environmental law or

6 regulation, or compliance order or decree issued pur7 suant thereto, applicable to the handling, processing,

8 reclamation, storage, or other management activities

9 associated with the recyclable material.

10 ‘‘(6) For purposes of this subsection, ‘reasonable

11 care’ shall be determined using criteria that include

12 (but are not limited to) (A) the price paid in the re13 cycling transaction; (B) the ability of the person to

14 detect the nature of the consuming facility’s oper15 ations concerning its handling, processing, reclama16 tion, or other management activities associated with

17 the recyclable material; and (C) the result of inquiries

18 made to the appropriate Federal, State, or local envi19 ronmental agency (or agencies) regarding the consum20 ing facility’s past and current compliance with sub21 stantive (not procedural or administrative) provisions

22 of any Federal, State, or local environmental law or

23 regulation, or compliance order or decree issued pur24 suant thereto, applicable to the handling, processing,

25 reclamation, storage, or other management activities
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1 associated with the recyclable material. For the pur2 poses of this paragraph, a requirement to obtain a

3 permit applicable to the handling, processing, rec4 lamation, or other management activity associated

5 with the recyclable materials shall be deemed to be a

6 substantive provision.

7 ‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—

8 ‘‘(1) Transactions involving scrap metal shall be

9 deemed to be arranging for recycling if the person

10 who arranged for the transaction (by selling recycla11 ble material or otherwise arranging for the recycling

12 of recyclable material) can demonstrate by a prepon13 derance of the evidence that at the time of the trans14 action—

15 ‘‘(A) the person met the criteria set forth in

16 subsection (c) with respect to the scrap metal;

17 ‘‘(B) the person was in compliance with

18 any applicable regulations or standards regard19 ing the storage, transport, management, or other

20 activities associated with the recycling of scrap

21 metal that the Administrator promulgates under

22 the Solid Waste Disposal Act subsequent to the

23 enactment of this section and with regard to

24 transactions occurring after the effective date of

25 such regulations or standards; and
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1 ‘‘(C) the person did not melt the scrap

2 metal prior to the transaction.

3 ‘‘(2) For purposes of paragraph (1)(C), melting

4 of scrap metal does not include the thermal separa5 tion of 2 or more materials due to differences in their

6 melting points (referred to as ‘sweating’).

7 ‘‘(3) For the purposes of this subsection, the term

8 ‘scrap metal’ means bits and pieces of metal parts

9 (e.g. bars, turnings, rods, sheets, wire) or metal pieces

10 that may be combined together with bolts or soldering

11 (e.g. radiators, scrap automobiles, railroad box cars),

12 which when worn or superfluous can be recycled, ex13 cept for scrap metals that the Administrator excludes

14 from this definition by regulation.

15 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—Trans16 actions involving spent lead-acid batteries, spent nickel-cad17 mium batteries or other spent batteries shall be deemed to

18 be arranging for recycling if the person who arranged for

19 the transaction (by selling recyclable material or otherwise

20 arranging for the recycling of recyclable material) can dem21 onstrate by a preponderance of the evidence that at the time

22 of the transaction—

23 ‘‘(1) the person met the criteria set forth in sub24 section (c) with respect to the spent lead-acid bat25 teries, spent nickel-cadmium batteries, or other spent
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1 batteries but did not recover the valuable components

2 of such batteries; and

3 ‘‘(2)(A) with respect to transactions involving

4 lead-acid batteries, the person was in compliance with

5 applicable Federal environmental regulations or

6 standards, and any amendments thereto, regarding

7 the storage, transport, management, or other activities

8 associated with the recycling of spent lead-acid bat9 teries;

10 ‘‘(B) with respect to transactions involving nick11 el-cadmium batteries, Federal environmental regula12 tions or standards are in effect regarding the storage,

13 transport, management, or other activities associated

14 with the recycling of spent nickel-cadmium batteries,

15 and the person was in compliance with applicable

16 regulations or standards or any amendments thereto;

17 or

18 ‘‘(C) with respect to transactions involving other

19 spent batteries, Federal environmental regulations or

20 standards are in effect regarding the storage, trans21 port, management, or other activities associated with

22 the recycling of such batteries, and the person was in

23 compliance with applicable regulations or standards

24 or any amendments thereto.
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1 ‘‘(f) EXCLUSIONS.—(1) The exemptions set forth in

2 subsections (c), (d), and (e) shall not apply if—

3 ‘‘(A) the person had an objectively reasonable

4 basis to believe at the time of the recycling trans5 action—

6 ‘‘(i) that the recyclable material would not

7 be recycled,

8 ‘‘(ii) that the recyclable material would be

9 burned as fuel, or for energy recovery or inciner10 ation, or

11 ‘‘(iii) for transactions occurring before 90

12 days after the date of the enactment of this sec13 tion, that the consuming facility was not in com14 pliance with a substantive (not a procedural or

15 administrative) provision of any Federal, State,

16 or local environmental law or regulation, or

17 compliance order or decree issued pursuant

18 thereto, applicable to the handling, processing,

19 reclamation, or other management activities as20 sociated with the recyclable material; or

21 ‘‘(B) the person added hazardous substances to

22 the recyclable material for purposes other than proc23 essing for recycling; or
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1 ‘‘(C) the person failed to exercise reasonable care

2 with respect to the management and handling of the

3 recyclable material.

4 ‘‘(2) For purposes of this subsection, an objectively rea5 sonable basis for belief shall be determined using criteria

6 that include (but are not limited to) the size of the person’s

7 business, customary industry practices, the price paid in

8 the recycling transaction, and the ability of the person to

9 detect the nature of the consuming facility’s operations con10 cerning its handling, processing, reclamation or other man11 agement activities associated with the recyclable material.

12 ‘‘(3) For purposes of this subsection, a requirement to

13 obtain a permit applicable to the handling, processing, rec14 lamation, or other management activities associated with

15 recyclable material shall be deemed to be a substantive pro16 vision.

17 ‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing in this

18 section shall be deemed to affect the liability of a person

19 under paragraph (1) or (2) of section 107(a).

20 ‘‘(h) PCBS.—An exemption under this section does not

21 apply if the recyclable material contained polychlorinated

22 biphenyls in excess of 50 parts per million or any new

23 standard promulgated pursuant to applicable Federal laws.
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1 ‘‘(i) REGULATIONS.—The Administrator has the au2 thority, under section 115, to promulgate additional regula3 tions concerning this section.

4 ‘‘(j) EFFECT ON PENDING OR CONCLUDED ACTIONS.—

5 The exemptions provided in this section shall not affect any

6 concluded judicial or administrative action or any pending

7 judicial action initiated by the United States prior to en8 actment of this section.

9 ‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR CERTAIN

10 ACTIONS.—Any person who commences an action in con11 tribution against a person who is not liable by operation

12 of this section shall be liable to that person for all reasonable

13 costs of defending that action, including all reasonable at14 torney’s and expert witness fees.

15 ‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER

16 LAWS.—Nothing in this section shall affect—

17 ‘‘(1) liability under any other Federal, State, or

18 local statute or regulation promulgated pursuant to

19 any such statute, including any requirements promul20 gated by the Administrator under the Solid Waste

21 Disposal Act; or

22 ‘‘(2) the ability of the Administrator to promul23 gate regulations under any other statute, including

24 the Solid Waste Disposal Act.’’.
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1 TITLE V—REMEDY SELECTION

2 AND CLEANUP STANDARDS

Sec. 501. Cleanup standards.

Sec. 502. Remedy selection.

Sec. 503. Miscellaneous amendments to section 121.

Sec. 504. Response authorities.

Sec. 505. Removal actions.

Sec. 506. Transition.

3 SEC. 501. CLEANUP STANDARDS.

4 Section 121(d) (42 U.S.C. 9621(d)) is amended as fol5 lows:

6 (1) In paragraph (3), by inserting ‘‘or 4010(c)

7 if appropriate’’ after ‘‘3005’’.

8 (2) By redesignating paragraphs (3) and (4) as

9 paragraphs (9) and (10), respectively.

10 (3) By striking out the subsection heading and

11 designation and all that follows through the end of

12 paragraph (2) and inserting in lieu thereof the follow13 ing:

14 ‘‘(d) ESTABLISHMENT OF PROTECTIVE CONCENTRA15 TION LEVELS.—

16 ‘‘(1) NATIONAL GOALS FOR THE PROTECTION OF

17 HUMAN HEALTH AND THE ENVIRONMENT.—In order

18 to provide consistent and equivalent protection of

19 human health and the environment to all commu20 nities, within 18 months after the enactment of the

21 Superfund Reform Act of 1994, the Administrator

22 shall promulgate national goals to be applied at all
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1 facilities subject to remedial action under this Act.

2 National goals for human health shall be expressed as

3 a single, numerical level for chemical carcinogens and

4 noncarcinogens, respectively. The national goals shall

5 provide the basis for protective concentration levels

6 unless the achievement of such goals is technically in7 feasible or unreasonably costly pursuant to subsection

8 (b). In a case in which the President selects a remedy

9 that does not achieve the national goals, the President

10 shall publish an explanation of the basis for that deci11 sion. The national goals shall be developed and pro12 mulgated in accordance with sections 561 through

13 570 of title 5, United States Code (commonly referred

14 to as the ‘Negotiated Rulemaking Act’).

15 ‘‘(2) SCOPE AND PURPOSE OF NATIONAL RISK

16 PROTOCOL.—The Administrator shall promulgate a

17 national risk protocol for conducting risk assessments

18 under this Act. The national risk protocol shall be

19 used for risk assessments underlying determinations

20 of the need for remedial action, the establishment of

21 protective concentration levels of chemicals, and the

22 evaluation of remedial alternatives. The national risk

23 protocol shall be developed and promulgated in ac24 cordance with sections 561 through 570 of title 5,

25 United States Code, to the extent the Administrator
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1 deems appropriate. The national risk protocol shall

2 establish, to the extent appropriate and practicable,

3 the following:

4 ‘‘(A) Standardized exposure scenarios defin5 ing exposure pathways for a range of unre6 stricted and restricted land uses.

7 ‘‘(B) Standardized formulae or methodolo8 gies for—

9 ‘‘(i) evaluating the exposure pathways

10 of concern under the standardized exposure

11 scenarios established under subparagraph

12 (A); and

13 ‘‘(ii) developing, consistent with the

14 national goals under paragraph (1), chemi15 cal concentration levels protective of recep16 tors currently and reasonably anticipated to

17 be exposed via the pathways included in

18 such scenarios for the 100 contaminants

19 most frequently occurring at facilities ad20 dressed under this Act for which adequate

21 toxicity information is available.

22 ‘‘(C) Methodologies for facility-specific eval23 uations of ecological risks.

24 ‘‘(3) STANDARDIZED FORMULAE OR METHODOLO25 GIES.—Standardized formulae or methodologies estab-
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1 lished under subparagraphs (A) and (B) of paragraph

2 (2) shall include the following:

3 ‘‘(A) National constants for specific charac4 teristics of individual chemicals not expected to

5 vary from facility to facility.

6 ‘‘(B) Facility-specific variables for physical

7 characteristics of the facility and other factors.

8 Criteria for identifying such variables shall in9 clude the following:

10 ‘‘(i) Whether a characteristic or factor

11 can be objectively measured based on actual

12 facility data or reasonably estimated based

13 on credible scientific studies when facility14 measured data cannot be reasonably ob15 tained.

16 ‘‘(ii) Whether the effects of a char17 acteristic or factor are scientifically well18 understood.

19 ‘‘(iii) Whether the impact of the char20 acteristic or factor on estimations of risk or

21 protective concentration levels is significant.

22 ‘‘(C) Exposure factors related to demo23 graphics (including separate exposure factors for

24 sensitive subpopulations to be applied where rel25 evant), activity patterns, and natural con-
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1 straints. Defaults or ranges of default values

2 shall be established for such factors and used un3 less verifiable data are presented that the de4 faults are significantly different from actual fa5 cility conditions. In such cases, the values shall

6 be determined on a site-specific basis after con7 sideration of any views expressed by the Commu8 nity Working Group, if available, and the af9 fected community.

10 ‘‘(4) APPLICATION OF NATIONAL RISK PROTOCOL.

11 —(A) The President shall conduct an analysis at

12 each facility to determine which exposure scenarios,

13 pathways, and contaminants are relevant to that fa14 cility. Where standardized formulae or methodologies

15 for addressing such relevant scenarios, pathways, and

16 contaminants are available, they shall be used.

17 ‘‘(B) Standardized formulae or methodologies for

18 exposure pathways that do not exist or are not rea19 sonably anticipated to exist in the future at a facility

20 shall not be applied in establishing protective con21 centration levels for the facility.

22 ‘‘(C) Where standardized formulae or methodolo23 gies for particular exposure scenarios, exposure path24 ways, or chemicals are unavailable, facility-specific

25 risk assessment shall be used.
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1 ‘‘(5) CONSIDERATIONS IN ESTABLISHING THE

2 NATIONAL RISK PROTOCOL.—(A) In developing the

3 national risk protocol under paragraph (2), the Ad4 ministrator shall evaluate and, to the degree appro5 priate and practicable—

6 ‘‘(i) identify appropriate sources of toxicity

7 information;

8 ‘‘(ii) define the use of probabilistic model9 ing;

10 ‘‘(iii) identify criteria for the selection and

11 application of transport and fate models;

12 ‘‘(iv) define the use of high end and central

13 tendency exposure cases and assumptions;

14 ‘‘(v) define the use of population risk esti15 mates in addition to individual risk estimates;

16 ‘‘(vi) define appropriate approaches for ad17 dressing cumulative risks posed by multiple con18 taminants or multiple exposure pathways; and

19 ‘‘(vii) establish appropriate sampling ap20 proaches and data quality requirements.

21 ‘‘(B) The national risk protocol shall establish

22 guidelines for all risk assessments conducted under

23 paragraph (2), including those by which protective

24 concentration levels are established, which result in
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1 final protection at the 90th exposure percentile of the

2 affected population defined by the President.

3 ‘‘(6) PHASING AND UPDATING OF THE NATIONAL

4 RISK PROTOCOL.—The national risk protocol shall be

5 developed in accordance with a schedule promulgated

6 by the Administrator within 90 days after the date of

7 enactment of the Superfund Reform Act of 1994. The

8 national risk protocol may be developed and promul9 gated in phases as determined appropriate by the Ad10 ministrator. The final protocol shall be promulgated

11 within 18 months after the enactment of such Act.

12 The Administrator also shall determine an appro13 priate approach and schedule for ensuring that the

14 national risk protocol remains current with emerging

15 science and relevant Agency policy.

16 ‘‘(7) FEDERAL AND STATE LAWS.—(A) A reme17 dial action shall be required to—

18 ‘‘(i) comply with the substantive require19 ments of any promulgated standard, require20 ment, criterion, or limitation under any Federal,

21 or more stringent State, environmental or facil22 ity siting law that is applicable to the conduct

23 or operation of the remedial action;

24 ‘‘(ii) attain any promulgated protective

25 concentration levels applicable to determining
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1 the level of cleanup for remedial actions con2 ducted under any State environmental law

3 where such levels are more stringent than those

4 established under subparagraph (C)(i) or the

5 concentration levels determined to be protective

6 for a given facility in accordance with the re7 quirements of paragraph (2); and

8 ‘‘(iii) comply with or attain any other pro9 mulgated standard, requirement, criterion, or

10 limitation under any State environmental or fa11 cility siting law that the State demonstrates is

12 consistently applied to remedial actions under

13 State law, and that the State determines,

14 through a promulgation process which includes

15 public notice, comment, and written response

16 thereto, and opportunity for judicial review,

17 apply to remedial actions under the Act.

18 ‘‘(B) Compliance with any State standard, cri19 terion, requirement, or limitation under subpara20 graph (A) shall be required at a given facility if it

21 has been identified by the State to the President in

22 a timely manner as applicable at that facility. In ad23 dition, each State shall publish a comprehensive list

24 of the promulgated standards, criteria, requirements,

25 or limitations that the State may apply to remedial
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1 actions under this Act and revise such list periodi2 cally. The State shall also revise such list as requested

3 by the President.

4 ‘‘(C)(i) Remedial actions for contaminated

5 ground water and surface water that may be used for

6 drinking water shall attain Federal Maximum Con7 taminant Levels and non-zero Maximum Contami8 nant Level Goals where available under the title XIV

9 of the Public Health Service Act (the Safe Drinking

10 Water Act) in the ground water or surface water, ex11 cept where the provisions of clause (ii) apply. Attain12 ment of such levels shall satisfy the requirements of

13 paragraph (1).

14 ‘‘(ii) Concentration levels other than those re15 quired under clause (i) may be established for ground

16 water that may be used for drinking water in any

17 case in which the following conditions are met:

18 ‘‘(I) The President determines that the use

19 of alternate concentration levels is appropriate.

20 ‘‘(II) There are known and projected points

21 of entry of such ground water into surface water.

22 ‘‘(III) On the basis of measurements or pro23 jections, there is or will be no increase of such

24 constituents that would pose a threat to human
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1 health or the environment from such ground

2 water in such surface water.

3 ‘‘(IV) The remedial action includes enforce4 able measures that will preclude human exposure

5 to the contaminated ground water within the fa6 cility and up to all known and projected points

7 of entry of such ground water into surface water.

8 ‘‘(V) Monitoring to ensure attainment of the

9 alternative concentration level is conducted in

10 ground water at a point or points immediately

11 prior to where the ground water enters into sur12 face water. In such cases, the point of human ex13 posure may be assumed to be at such known and

14 projected points of entry.

15 ‘‘(D) Procedural requirements of Federal and

16 State standards, requirements, criteria, or limita17 tions, including permitting requirements, shall not

18 apply to response actions conducted on-site. Compli19 ance with subparagraph (A) shall not be required

20 with respect to return, replacement, or disposal of

21 contaminated media or residuals of contaminated

22 media into the same medium in or very near existing

23 areas of contamination on-site.

24 ‘‘(E)(i) The President may select a remedial ac25 tion meeting the requirements of paragraph (1) that
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1 does not comply with or attain a Federal or State

2 standard, requirement, criterion, or limitation as re3 quired by subparagraphs (A) and (C), if the President

4 finds any of the following:

5 ‘‘(I) The remedial action selected is only

6 part of a total remedial action that will comply

7 with or attain the applicable requirements of

8 subparagraphs (A) and (C) of this paragraph

9 when completed.

10 ‘‘(II) Compliance with or attainment of

11 such requirement at that facility will result in

12 greater risk to human health and the environ13 ment than alternative options.

14 ‘‘(III) Compliance with or attainment of

15 such requirement is technically impracticable

16 from an engineering perspective.

17 ‘‘(IV) The remedial action selected will at18 tain a standard of performance that is equiva19 lent to that required under a standard, require20 ment, criterion, or limitation identified under

21 subparagraph (A) through use of another ap22 proach.

23 ‘‘(V) With respect to a State standard, re24 quirement, criterion, or limitation under clauses

25 (i), (ii), and (iii) of subparagraph (A), the State
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1 has not consistently applied (or demonstrated the

2 intention to consistently apply) the standard, re3 quirement, criterion, or limitation in similar

4 circumstances at other remedial actions within

5 the State.

6 ‘‘(VI) In the case of a remedial action to be

7 undertaken solely under section 104 using the

8 Fund, a selection of a remedial action that com9 plies with or attains standards, criteria, require10 ments, or limitations will not provide a balance

11 between the need for protection of public health

12 and welfare and the environment at the facility

13 under consideration, and the availability of

14 amounts from the Fund to respond to other fa15 cilities that present or may present a threat to

16 public health or welfare or the environment, tak17 ing into consideration the relative immediacy of

18 such threat.

19 ‘‘(ii) The President shall publish any findings

20 made under clause (i), together with an explanation

21 and appropriate documentation.

22 ‘‘(8)(A) Except as provided in subparagraph (B), a

23 State standard, requirement, criteria, or limitation (includ24 ing any State siting standard or requirement) which could

25 effectively result in the statewide prohibition of land dis-
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1 posal of hazardous substances, pollutants, or contaminants

2 shall not apply.

3 ‘‘(B) Any State standard, requirement, criteria, or

4 limitation referred to in subparagraph (A) shall apply

5 where each of the following conditions is met:

6 ‘‘(i) The State standard, requirement, criteria, or

7 limitation is of general applicability and was adopt8 ed by formal means.

9 ‘‘(ii) The State standard, requirement, criteria,

10 or limitation was adopted on the basis of hydrologic,

11 geologic, or other relevant considerations and was not

12 adopted for the purpose of precluding onsite remedial

13 actions or other land disposal for reasons unrelated to

14 protection of human health and the environment.

15 ‘‘(iii) The State arranges for, and assures pay16 ment of the incremental costs of utilizing, a facility

17 for disposition of the hazardous substances, pollut18 ants, or contaminants concerned.’’.

19 SEC. 502. REMEDY SELECTION.

20 Section 121(b) (42 U.S.C. 9621(b)) is amended to read

21 as follows:

22 ‘‘(b) GENERAL RULES. —

23 ‘‘(1) SELECTION OF PROTECTIVE REMEDIES.—

24 Remedies selected at individual facilities shall be pro25 tective of human health and the environment and pro-
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1 vide long-term reliability at reasonable cost. A reme2 dial action may achieve protection of human health

3 and the environment through treatment that reduces

4 the toxicity, mobility, or volume of hazardous sub5 stances, pollutants, or contaminants; containment or

6 other engineering controls to limit exposure; a com7 bination of treatment and containment; or other

8 methods of protection. The method or methods of re9 mediation appropriate for a given facility shall be de10 termined through the evaluation of remedial alter11 natives and the selection process under paragraphs

12 (2) and (3). When determining the appropriate reme13 dial method, treatment is to be preferred for hot spots

14 as defined under paragraph (3)(B). This preference

15 shall not apply to materials that do not constitute hot

16 spots.

17 ‘‘(2) LAND USE.—(A) In selecting a remedy, the

18 President shall take into account the reasonably an19 ticipated future uses of land at a facility as required

20 by this Act. In identifying reasonably anticipated fu21 ture land uses the President shall consider factors,

22 which generally shall include the following:

23 ‘‘(i) Any consensus recommendation of the

24 Community Working Group and any other views

25 expressed by members of the affected community.
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1 ‘‘(ii) The land use history of the facility

2 and surrounding properties, the current land

3 uses of the facility and surrounding properties,

4 recent development patterns in the area where

5 the facility is located, and population projections

6 for that area.

7 ‘‘(iii) Federal or State land use designa8 tions, including Federal facilities and national

9 parks, State ground water or surface water re10 charge areas established under a State’s com11 prehensive protection plan for ground water or

12 surface water, and recreational areas.

13 ‘‘(iv) The current land use zoning and fu14 ture land use plans of the local government with

15 land use regulatory authority.

16 ‘‘(v) The potential for economic redevelop17 ment.

18 ‘‘(vi) The proximity of the contamination to

19 residences, sensitive populations or ecosystems,

20 natural resources, or areas of unique historic or

21 cultural significance.

22 ‘‘(vii) Current plans for the facility by the

23 property owner or owners, not including poten24 tial voluntary remedial measures.
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1 ‘‘(B) In developing its recommendation, the

2 Community Working Group shall consider factors (ii)

3 through (vii) of subparagraph (A), and the President

4 shall give substantial weight to that recommendation

5 where consensus is reached, or substantial weight to

6 the views of the affected community where the Com7 munity Working Group does not reach consensus in

8 accordance with section 117(g).

9 ‘‘(C) All information considered by the President

10 in evaluating reasonably anticipated future land uses

11 under this paragraph shall be included in the admin12 istrative record under section 113(k).

13 ‘‘(3) APPROPRIATE REMEDIAL ACTION.—(A) The

14 President shall identify and select an appropriate

15 remedy that prevents exposures in excess of protective

16 concentration levels established under subsection (d)

17 by balancing the following factors:

18 ‘‘(i) The effectiveness of the remedy.

19 ‘‘(ii) The long-term reliability of the rem20 edy, that is, its capability to achieve long-term

21 protection of human health and the environment

22 considering the preference for treatment of hot

23 spots.

24 ‘‘(iii) Any short-term risk posed by the im25 plementation of the remedy to the affected com-
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1 munity, to those engaged in the cleanup effort,

2 and to the environment.

3 ‘‘(iv) The acceptability of the remedy to the

4 affected community.

5 ‘‘(v) The reasonableness of the cost of the

6 remedy.

7 ‘‘(B) HOT SPOTS.—The following shall apply to

8 the remediation of hot spots:

9 ‘‘(i) For purposes of this section, the term

10 ‘hot spot’ means a discrete area within a facility

11 that contains hazardous substances, pollutants or

12 contaminants that are present in high concentra13 tions, are highly mobile, or cannot be reliably

14 contained, that would present a significant risk

15 to human health or the environment should expo16 sure occur. The President shall develop guidelines

17 for the identification of hot spots. Such guide18 lines shall recommend appropriate field inves19 tigations that will not require extraordinarily

20 complex or costly measures.

21 ‘‘(ii) In determining an appropriate remedy

22 for hot spots, the President shall consider the fac23 tors under subparagraph (A). With respect to the

24 factor in clause (v), the President shall use a

25 higher threshold for evaluating the reasonableness
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1 of costs for hot spot treatment relative to the re2 mediation of non-hot spot materials.

3 ‘‘(iii) The President shall select a remedy

4 requiring treatment of materials constituting hot

5 spots unless an appropriate treatment technology

6 is unavailable or is available only at unreason7 able cost. In such instances, the President shall

8 select an interim containment remedy for such

9 hot spot subject to adequate monitoring and pub10 lic reporting to ensure its continued integrity

11 and shall review the interim containment rem12 edy in accordance with subsection (c). When the

13 appropriate treatment technology becomes avail14 able, as determined by the President, that rem15 edy shall be considered in accordance with this

16 section.

17 ‘‘(iv) Notwithstanding the presence of a hot

18 spot, the President may select a final contain19 ment remedy for hot spots at landfills and min20 ing sites or similar facilities under the following

21 circumstances:

22 ‘‘(I) The hot spot is small relative to

23 the overall volume of waste or contamina24 tion being addressed, the hot spot is not

25 readily identifiable and accessible, and
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1 without the presence of the hot spot contain2 ment would have been selected as the appro3 priate remedy under subparagraph (A) for

4 the larger body of waste or area of contami5 nation in which the hot spot is located.

6 ‘‘(II) the volume and areal extent of

7 the hot spot is extraordinary compared to

8 other facilities, and it is highly unlikely due

9 to the size and other characteristics of the

10 hot spot that any treatment technology will

11 be developed that could be implemented at

12 reasonable cost.

13 Where final containment for a hot spot is selected, the

14 President shall publish an explanation of the basis for

15 that decision.

16 ‘‘(4) GENERIC REMEDIES.—In order to stream17 line the remedy selection process and to facilitate

18 rapid voluntary action, the President shall establish,

19 taking into account the factors enumerated in para20 graph (3)(A), cost-effective generic remedies for cat21 egories of facilities, and expedited procedures that in22 clude community involvement for selecting generic

23 remedies at an individual facility. To be eligible for

24 selection at a facility, a generic remedy shall be pro25 tective of human health and the environment at that
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1 facility. In appropriate cases, the President may se2 lect a generic remedy without considering alternatives

3 to the generic remedy.’’.

4 SEC. 503. MISCELLANEOUS AMENDMENTS TO SECTION 121.

5 (a) REVIEW.—Section 121(c) (42 U.S.C. 9621(c)) is

6 amended—

7 (1) in the first sentence, by striking out ‘‘initi8 ation’’ and inserting in lieu thereof ‘‘completion of all

9 physical on-site construction,’’;

10 (2) in the second sentence, by inserting ‘‘(1)’’

11 after ‘‘it is the judgment of the President that’’; and

12 (3) in the second sentence, by inserting after

13 ‘‘section 104 or 106,’’ the following: ‘‘or (2) an in14 terim containment remedy was selected for such site

15 and an appropriate final remedial action is available

16 under subsection (b)(3)(B)(iii) and appropriate to se17 lect in accordance with subsection (b)(3)(A) of this

18 section,’’.

19 (b) Section 121(e)(1) (42 U.S.C. 9621(e)(1)) is amend20 ed by adding at the end thereof the following: ‘‘Furthermore,

21 no Federal, State, or local permit or permit application

22 shall be required for on-site or off-site activities conducted

23 under section 311(b).’’.
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1 SEC. 504. RESPONSE AUTHORITIES.

2 (a) STUDIES AND INVESTIGATIONS.—Section 104(b)(1)

3 (42 U.S.C. 9604(b)(1)) is amended in the second sentence

4 by striking ‘‘studies’’ and all that follows through the end

5 of the sentence and inserting in lieu thereof the following:

6 ‘‘actions, studies, or investigations as he may deem nec7 essary or appropriate to plan and direct response actions

8 or to enforce the provisions of this Act and shall be entitled

9 to recover the costs thereof.’’.

10 (b) DISPOSAL AUTHORITY.—Section 104(j) (42 U.S.C.

11 9604(j)) is amended—

12 (1) in paragraph (1), by striking ‘‘remedial’’ in

13 the first sentence and inserting ‘‘response’’;

14 (2) by striking paragraph (2);

15 (3) by redesignating paragraph (3) as para16 graph (2) and in that paragraph by striking ‘‘estate’’

17 and inserting ‘‘property’’; and

18 (4) by inserting after paragraph (2) (as redesig19 nated) the following new paragraph:

20 ‘‘(3) DISPOSAL AUTHORITY.—The President is

21 authorized to dispose of any interest in real property

22 acquired for use by the Administrator under this sub23 section by sale, exchange, donation, or otherwise and

24 any such interest in real property shall not be subject

25 to any of the provisions of section 120 except the no26 tice provisions of section 120(h)(1). Any moneys re-
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1 ceived by the President pursuant to this paragraph

2 shall be deposited in the Fund.’’.

3 (c) PRIVATE PARTY REMOVAL LIMITATIONS.—Section

4 104(a)(2) (42 U.S.C. 9604(a)(2)) is amended by adding at

5 the end the following: ‘‘In any case in which implementa6 tion of a removal action is expected to obviate or in fact

7 does obviate the need to conduct a long-term remedial ac8 tion, such removal action must—

9 ‘‘(A) comply with the protective concentra10 tion levels and other standards in subsections (b)

11 and (d) of section 121; and

12 ‘‘(B) allow for public participation in ac13 cordance with section 117 to the maximum ex14 tent practicable.’’.

15 SEC. 505. REMOVAL ACTIONS.

16 (a) OBLIGATIONS FROM FUND.—Section 104(c)(1) (42

17 U.S.C. 9604(c)(1)) is amended—

18 (1) by striking ‘‘consistent with the remedial ac19 tion to be taken’’ and inserting ‘‘not inconsistent with

20 any remedial action that has been selected or is an21 ticipated at the time of the removal action,’’;

22 (2) by striking ‘‘$2,000,000’’ and inserting

23 ‘‘$4,000,000’’; and

24 (3) by striking ‘‘12 months’’ and inserting ‘‘two

25 years’’.
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1 (b) NON-EMERGENCY REMOVALS.—Section 120(e) (42

2 U.S.C. 9620(e)) is amended by adding at the end the follow3 ing new paragraph:

4 ‘‘(7) NOTIFICATION OF AND CONCURRENCE FROM

5 EPA OR STATE FOR NON-EMERGENCY REMOVAL AC6 TIONS.—(A) Before the commencement of any non7 emergency removal action by a department, agency,

8 or instrumentality of the United States, such depart9 ment, agency, or instrumentality shall—

10 ‘‘(i) notify the Environmental Protection

11 Agency and the State of the planned removal ac12 tion; and

13 ‘‘(ii) obtain, in the case of facilities which

14 are listed or proposed for listing on the National

15 Priorities List, concurrence in the planned re16 moval action from the Environmental Protection

17 Agency or the State, as applicable.

18 ‘‘(B) The lack of concurrence under clause (ii)

19 shall not delay the commencement of the remedial in20 vestigation and feasibility study in accordance with

21 the time requirements of this section. The require22 ments of this paragraph relating to notification and

23 concurrence shall not affect, alter, or supplant, di24 rectly or indirectly, the applicability of any State law

25 to the removal action concerned. Within a reasonable
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1 period of time after any emergency removal action is

2 carried out by a department, agency, or instrumen3 tality of the United States, the department, agency, or

4 instrumentality shall notify the Environmental Pro5 tection Agency or the State, as appropriate, of the re6 moval action.’’.

7 SEC. 506. TRANSITION.

8 (a) EFFECTIVE DATE.—This title, and the amend9 ments made by this title, shall become effective 180 days

10 after the date of enactment of this Act. Remedies selected

11 under the Comprehensive Environmental Response, Com12 pensation, and Liability Act of 1980 following that effective

13 date shall be selected as provided in section 121(b) of that

14 Act (as amended by this Act) and subject to the Federal

15 and State requirements specified in section 121(d)(7) of

16 that Act (as amended by this Act).

17 (b) CONTINUED EFFECTIVENESS OF REGULATIONS

18 AND GUIDANCE.—Until promulgation of the national goals

19 and the national risk protocol under section 121(d), the

20 President may continue to rely on current regulations and

21 guidance with regard to acceptable risk levels and the con22 duct of risk assessments.

23 (c) PRIOR RODS.—(1) Nothing in this Act shall place

24 upon the President an obligation to reopen a record of deci25 sion signed prior to the effective date of this title.
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1 (2) If, pursuant to section 117 of the Comprehensive

2 Environmental Response, Compensation, and Liability Act

3 of 1980, the President determines that a change to a record

4 of decision signed prior to the effective date of this title is

5 necessary, the President may apply the rules in effect at

6 the time the original record of decision was signed.

7 TITLE VI—MISCELLANEOUS

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

facilities.

Sec. 602. Transfers of uncontaminated property.

Sec. 603. Agreements to transfer by deed.

Sec. 604. Alternative or innovative treatment technologies.

Sec. 605. Definitions.

Sec. 606. Response claims procedures.

Sec. 607. Small business ombudsman.

Sec. 608. Consideration of local government cleanup priorities.

Sec. 609. Consistent application among regional offices.

Sec. 610. Study of participants.

Sec. 611. Public comment.

Sec. 612. Certification of environmental training and certification organizations.

Sec. 613. Savings clause.

Sec. 614. Federal entities and facilities.

8 SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNER9 SHIP AND MIXED RESPONSIBILITY FACILI10 TIES.

11 Section 120(e) (42 U.S.C. 9620(e)) is amended—

12 (1) by inserting at the end of paragraph (4) the

13 following new subparagraph:

14 ‘‘(D) A provision allowing for the partici15 pation of other responsible parties (if any) in the

16 response action.’’; and

17 (2) by inserting after paragraph (7) the follow18 ing new paragraphs:
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1 ‘‘(8) EXCEPTION TO REQUIRED ACTION.—(A) A

2 department, agency, or instrumentality of the United

3 States that owns or operates a facility over which the

4 department, agency, or instrumentality exercised no

5 regulatory or other control over activities that directly

6 or indirectly resulted in a release or threat of a re7 lease of a hazardous substance shall be subject to the

8 requirements of paragraphs (1) through (6), other

9 than subparagraphs (F) and (G) of paragraph (5),

10 unless and to the extent the department, agency, or

11 instrumentality demonstrates to the satisfaction of the

12 Administrator that—

13 ‘‘(i) no department, agency, or instrumen14 tality was the primary or sole source or cause of

15 a release or threat of release of a hazardous sub16 stance at the facility;

17 ‘‘(ii) the activities either directly or indi18 rectly resulting in a release or threat of a release

19 of a hazardous substance at the facility were

20 pursuant to a statutory authority and occurred

21 before 1976; and

22 ‘‘(iii) the person or persons primarily or

23 solely responsible for such release or threat of re24 lease are financially viable and are capable of
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1 performing or financing all or a portion of the

2 response action at the facility.

3 ‘‘(B) If the conditions listed in clauses (i)

4 through (iii) of subparagraph (A) are not met, the

5 applicable terms of this subsection apply to the de6 partment, agency, or instrumentality of the United

7 States at the facility. Upon determination by the Ad8 ministrator that a department, agency, or instrumen9 tality qualifies for the exception provided by this

10 paragraph, the head of such department, agency, or

11 instrumentality may exercise enforcement authority

12 under section 106. To the extent a person who has

13 been issued an order under the authority of this para14 graph seeks reimbursement under the provisions of

15 section 106, the relevant department, agency, or in16 strumentality, and not the Fund, shall be the source

17 of any appropriate reimbursement. If the relevant de18 partment, agency, or instrumentality has failed to ob19 tain the performance of response actions by respon20 sible parties pursuant to an order or consent decree

21 within 12 months after the facility has been listed on

22 the National Priorities List, the exception provided by

23 this paragraph shall be void and the department,

24 agency, or instrumentality shall, in consultation with

25 the Administrator and appropriate State authorities,
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1 commence a remedial investigation and feasibility

2 study for such facility within six months after the ex3 piration of the 12-month period.

4 ‘‘(9) An interagency agreement under this sec5 tion shall in no way impair or diminish the obliga6 tion of any department, agency, or instrumentality of

7 the United States to comply with requirements of ap8 plicable law, unless such requirements have been spe9 cifically—

10 ‘‘(A) addressed; or

11 ‘‘(B) waived;

12 without objection from the State prior to or at the

13 time the response action is selected pursuant to sec14 tion 121.’’.

15 SEC. 602. TRANSFERS OF UNCONTAMINATED PROPERTY.

16 Section 120(h)(4)(A) (42 U.S.C. 9620(h)(4)(A)) is

17 amended by striking ‘‘stored for one year or more,’’ in the

18 first sentence.

19 SEC. 603. AGREEMENTS TO TRANSFER BY DEED.

20 Section 120(h) (42 U.S.C. 9620(h)) is amended by

21 adding after paragraph (5) the following new paragraph:

22 ‘‘(6) AGREEMENTS TO TRANSFER BY DEED.—

23 Nothing in this subsection shall be construed to pro24 hibit the head of the department, agency, or instru25 mentality of the United States from entering into an
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1 agreement to transfer by deed real property or facili2 ties prior to the entering of such deed.’’.

3 SEC. 604. ALTERNATIVE OR INNOVATIVE TREATMENT TECH4 NOLOGIES.

5 Section 111(a) is amended by adding after paragraph

6 (6) the following new paragraph:

7 ‘‘(7) ALTERNATIVE OR INNOVATIVE TREATMENT

8 TECHNOLOGIES.—Payment of no more than 50 per9 cent of response costs incurred by a potentially liable

10 party in taking actions approved by the Adminis11 trator to achieve required levels of response under this

12 Act after employing an alternative or innovative tech13 nology that fails to achieve a level of response re14 quired under this Act pursuant to an administrative

15 order or consent decree. The Administrator shall issue

16 guidance on the procedures for the appropriate level

17 of funding for response activities using alternative in18 novative technologies as defined in section 311(b)(10)

19 that are necessary to achieve a level of response re20 quired under this Act. The Administrator shall review

21 and update such guidance, as appropriate.’’.

22 SEC. 605. DEFINITIONS.

23 Section 101 (42 U.S.C. 9601) is amended as follows:

24 (1) Paragraph (10)(H) is amended by striking

25 ‘‘subject to’’ and inserting ‘‘in compliance with’’.
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1 (2) Paragraph (14) is amended by adding at the

2 end the following: ‘‘The term includes methane, but

3 only when a response action undertaken to address a

4 release or threat of release of a hazardous substance

5 (as otherwise defined in this paragraph) at a landfill

6 or similar site also addresses methane.’’.

7 (3) Paragraph (20) is amended—

8 (A) in subparagraph (A), by inserting ‘‘the

9 United States or’’ after ‘‘similar means to’’;

10 (B) in subparagraph (D)—

11 (i) in the first sentence by inserting

12 ‘‘the United States or’’ after ‘‘does not in13 clude’’;

14 (ii) in the second sentence, by inserting

15 ‘‘any department, agency, or instrumental16 ity of the United States or’’ before ‘‘any

17 State’’; and

18 (iii) in the second sentence, by striking

19 ‘‘a’’ after ‘‘such’’ and inserting ‘‘depart20 ment, agency, or instrumentality of the

21 United States or’’; and

22 (C) by adding after subparagraph (D) the

23 following new subparagraphs:

24 ‘‘(E)(i) The term ‘owner or operator’ includes a

25 trust or estate or a person who holds title to a vessel
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1 or facility, or otherwise is affiliated with the vessel or

2 facility solely in a fiduciary capacity. Subject to

3 clauses (ii) and (iii), a fiduciary holding such title or

4 having such affiliation shall be personally subject to

5 the obligations and liabilities of an owner or operator

6 to the same extent as if the vessel or facility were held

7 by the fiduciary free of trust.

8 ‘‘(ii) The personal obligations and liabilities of a

9 fidicuary referred to in clause (i) shall be limited to

10 the extent to which the assets of the trust or estate are

11 sufficient to indemnify the fiduciary, unless—

12 ‘‘(I) the obligations and liabilities would

13 have arisen even if the person had not served as

14 fiduciary;

15 ‘‘(II) the fiduciary’s own failure to exercise

16 due care with respect to a vessel or facility

17 caused or contributed to the release of hazardous

18 substances following establishment of the trust,

19 estate, or fiduciary relationship;

20 ‘‘(III) the fiduciary had a role in establish21 ing the trust, estate, or fiduciary relationship,

22 and such trust, estate, or fiduciary relationship

23 has no objectively reasonable or substantial pur24 pose apart from the avoidance or limitation of

25 liability under this Act; or
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1 ‘‘(IV) the fiduciary has not complied with

2 such other requirements as the Administrator

3 may set forth by regulation.

4 ‘‘(iii) A fiduciary shall not be personally liable

5 for undertaking or directing another to undertake a

6 response action under section 107(d)(1).

7 ‘‘(F) The term ‘owner or operator’ shall not in8 clude the United States or any department, agency,

9 or instrumentality of the United States or a conserva10 tor or receiver appointed by a department, agency, or

11 instrumentality of the United States if the United

12 States or the conservator or receiver meets both of the

13 following conditions:

14 ‘‘(i) The United States, conservator, or re15 ceiver acquired ownership or control of a vessel

16 or facility (or any right or interest therein)—

17 ‘‘(I) in connection with the exercise of

18 receivership or conservatorship authority or

19 the liquidation or winding up of the affairs

20 of any entity subject to a receivership or

21 conservatorship, including any subsidiary

22 thereof; and

23 ‘‘(II) in connection with the exercise of

24 any seizure or forfeiture authority.
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1 ‘‘(ii) The United States, conservator, or re2 ceiver does not participate in the management of

3 the vessel or facility operations that result in a

4 release or threat of release of hazardous sub5 stances and complies with such other require6 ments as the Administrator may set forth by reg7 ulation.’’.

8 (4) Paragraph (23) (relating to the terms ‘‘re9 move’’ and ‘‘removal’’) is amended—

10 (A) in the first sentence—

11 (i) by striking ‘‘terms’’ and inserting

12 ‘‘term’’;

13 (ii) by striking ‘‘necessary’’ the first

14 place it appears and inserting ‘‘nec15 essarily’’; and

16 (iii) by inserting after ‘‘environment,

17 such actions’’ the phrase ‘‘or combination of

18 such actions’’;

19 (B) in the second sentence by striking ‘‘term

20 includes’’ and inserting ‘‘terms include’’; and

21 (C) by adding at the end the following:

22 ‘‘The term ‘remove’ or ‘removal’ is not limited to

23 emergency situations and includes actions to ad24 dress future or potential exposures.’’.
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1 (5) Paragraph (25) (relating to the terms ‘‘re2 spond’’ and ‘‘response’’) is amended—

3 (A) by striking ‘‘terms’’ and inserting

4 ‘‘term’’;

5 (B) by striking the comma after ‘‘remedial

6 action;’’; and

7 (C) by striking ‘‘related thereto’’ and insert8 ing ‘‘(including attorneys’ fees and expert wit9 ness fees) and oversight activities related thereto

10 when such activities are undertaken by the Presi11 dent’’.

12 (6) Paragraph (29) (relating to the terms ‘‘dis13 posal’’, ‘‘hazardous waste’’, and ‘‘treatment’’) is

14 amended by inserting before the period the following:

15 ‘‘, except that the term ‘hazardous substance’ shall be

16 substituted for the term ‘hazardous waste’ in the defi17 nitions of ‘disposal’ and ‘treatment’ ’’.

18 (7) Paragraph (33) (relating to the term ‘‘pollut19 ant or contaminant’’) is amended by striking ‘‘; ex20 cept that the’’ and inserting ‘‘. The’’.

21 (8) Paragraph (35) (relating to the term ‘‘con22 tractual relationship’’) is amended—

23 (A) in subparagraph (A)—

24 (i) by striking out clause (iii); and
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1 (ii) in the matter preceding clause (i),

2 by striking out ‘‘clause (i), (ii), or (iii)’’

3 and inserting ‘‘clause (i) or (ii)’’;

4 (B) by amending subparagraph (B) to read

5 as follows:

6 ‘‘(B)(i) To establish that the defendant had no

7 reason to know, as provided in clause (i) of subpara8 graph (A) of this paragraph, the defendant must have

9 undertaken, at the time of the acquisition, all appro10 priate inquiry into the previous ownership and uses

11 of the facility and its real property in accordance

12 with generally accepted good commercial and cus13 tomary standards and practices. For the purposes of

14 the preceding sentence and until the Administrator is15 sues or designates standards and practices as pro16 vided in clause (ii) of this subparagraph, the court

17 shall take into account any specialized knowledge or

18 experience on the part of the defendant, the relation19 ship of the purchase price to the value of the property

20 if uncontaminated, commonly known or reasonably

21 ascertainable information about the property, the ob22 viousness of the presence or likely presence of con23 tamination at the property, and the ability to detect

24 such contamination by appropriate investigation.
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1 ‘‘(ii) The Administrator may, by regulation, pro2 mulgate standards and practices or, by regulation,

3 designate standards and practices promulgated or de4 veloped by others, that satisfy the requirements of this

5 subparagraph. In issuing or designating such stand6 ards and practices, the Administrator shall consider

7 factors for the inquiry, including the following:

8 ‘‘(I) Conduct of the inquiry by an environ9 mental professional.

10 ‘‘(II) Inclusion of interviews with past and

11 present owners, operators, and occupants of the

12 facility and its real property for the purpose of

13 gathering information regarding the potential

14 for contamination at the facility and its real

15 property.

16 ‘‘(III) Inclusion of a review of historical

17 sources, such as chain of title documents, aerial

18 photographs, building department records, and

19 land use records, to determine previous uses and

20 occupancies of the real property since it was first

21 developed.

22 ‘‘(IV) Inclusion of a search for recorded en23 vironmental cleanup liens, filed under Federal,

24 State, or local law, against the facility or its real

25 property.
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1 ‘‘(V) Inclusion of a review of Federal, State,

2 and local government records, such as waste dis3 posal records; underground storage tank records;

4 and hazardous waste handling, generation, treat5 ment, disposal, and spill records, concerning con6 tamination at or near the facility or its real

7 property.

8 ‘‘(VI) Inclusion of a visual inspection of the

9 facility and its real property and of adjoining

10 properties.

11 ‘‘(VII) Any specialized knowledge or experi12 ence on the part of the defendant.

13 ‘‘(VIII) The relationship of the purchase

14 price to the value of the property if

15 uncontaminated.

16 ‘‘(IX) Commonly known or reasonably as17 certainable information about the property.

18 ‘‘(X) The obviousness of the presence or like19 ly presence of contamination at the property,

20 and the ability to detect such contamination by

21 appropriate investigation

22 ‘‘(iii) In the case of property for residential use

23 or other similar use, purchased by a nongovernmental

24 or noncommercial entity, a site inspection and title
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1 search that reveal no basis for further investigation

2 satisfy the requirements of this subparagraph.’’; and

3 (C) By adding the following new subpara4 graph at the end thereof:

5 ‘‘(E) The term ‘contractual relationship’ shall

6 not include the initial filing by a claimant of an

7 unpatented mining claim or the issuance of a patent

8 for any such claim.’’.

9 (9) The following new paragraphs are added

10 after paragraph (38):

11 ‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—

12 The term ‘bona fide prospective purchaser’ means a

13 person who acquires ownership of a facility after the

14 date of enactment of the Superfund Reform Act of

15 1994, or a tenant of such a person, who can establish

16 each of the following by a preponderance of the evi17 dence:

18 ‘‘(A) All active disposal of hazardous sub19 stances at the facility occurred before that person

20 acquired the facility.

21 ‘‘(B) The person made all appropriate in22 quiry into the previous ownership and uses of

23 the facility and its real property in accordance

24 with generally accepted good commercial and

25 customary standards and practices. The regula-
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1 tions promulgated by the Administrator pursu2 ant to paragraph (35)(B)(ii) shall satisfy the re3 quirements of this subparagraph. In the case of

4 property for residential or other similar use,

5 purchased by a nongovernmental or noncommer6 cial entity, a site inspection and title search that

7 reveal no basis for further investigation satisfy

8 the requirements of this subparagraph.

9 ‘‘(C) The person provided all legally re10 quired notices with respect to the discovery or re11 lease of any hazardous substances at the facility.

12 ‘‘(D) The person exercised appropriate care

13 with respect to hazardous substances found at the

14 facility by taking reasonable steps to stop on15 going releases, prevent threatened future releases

16 of hazardous substances, and prevent or limit

17 human or natural resource exposure to hazard18 ous substances previously released into the envi19 ronment.

20 ‘‘(E) The person provides full cooperation,

21 assistance, and facility access to persons author22 ized to conduct response actions at the facility,

23 including the cooperation and access necessary

24 for the installation, integrity, operation, and
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1 maintenance of any complete or partial response

2 action at the facility.

3 ‘‘(F) The person is not affiliated with any

4 other person liable for response costs at the facil5 ity, through any direct or indirect familial rela6 tionship, or any contractual, corporate, or finan7 cial relationship other than that created by the

8 instruments by which title to the facility is con9 veyed or financed.

10 ‘‘(40) FIDUCIARY.—

11 ‘‘(A) Except as provided in subparagraph

12 (B), the term ‘fiduciary’ means a person who

13 owns or controls property—

14 ‘‘(i) as a fiduciary within the meaning

15 of section 3(31) of the Employee Retirement

16 Income Security Act of 1974, or as a trust17 ee, executor, administrator, custodian,

18 guardian, conservator, or receiver acting for

19 the exclusive benefit of another person; and

20 ‘‘(ii) who has not previously owned or

21 operated the property in a non-fiduciary

22 capacity.

23 ‘‘(B) The term ‘fiduciary’ does not include

24 any person described in subparagraph (A)—
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1 ‘‘(i) who acquires ownership or control

2 of property to avoid the liability of such

3 person or any other person under this Act;

4 or

5 ‘‘(ii) who owns or controls property on

6 behalf of or for the benefit of a holder of a

7 security interest.

8 ‘‘(41) MUNICIPAL SOLID WASTE.—The term ‘mu9 nicipal solid waste’ means all waste materials gen10 erated by households, including single and multi-fam11 ily residences, and hotels and motels. The term also

12 includes waste materials generated by commercial, in13 stitutional, and industrial sources, to the extent such

14 wastes (A) are essentially the same as waste normally

15 generated by households, or (B) are collected and dis16 posed of with other municipal solid waste or sewage

17 sludge as part of normal municipal solid waste collec18 tion services, and, regardless of when generated, would

19 be considered conditionally exempt small quantity

20 generator waste under section 3001(d) of the Solid

21 Waste Disposal Act (42 U.S.C. 6921(d)). Examples of

22 municipal solid waste include food and yard waste,

23 paper, clothing, appliances, consumer product pack24 aging, disposable diapers, office supplies, cosmetics,

25 glass and metal food containers, elementary or sec-
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1 ondary school science laboratory waste, and household

2 hazardous waste. The term does not include combus3 tion ash generated by resource recovery facilities or

4 municipal incinerators, or waste from manufacturing

5 or processing (including pollution control) operations

6 not essentially the same as waste normally generated

7 by households.

8 ‘‘(42) MUNICIPALITY.—The term ‘municipality’

9 means a political subdivision of a State, including a

10 city, county, village, town, township, borough, parish,

11 school district, sanitation district, water district, or

12 other public entity performing local governmental

13 functions. The term also includes a natural person

14 acting in the capacity of an official, employee, or

15 agent of any entity referred to in the preceding sen16 tence in the performance of governmental functions.

17 ‘‘(43) QUALIFIED HOUSEHOLD HAZARDOUS

18 WASTE COLLECTION PROGRAM.—The term ‘qualified

19 household hazardous waste collection program’ means

20 a program established by an entity of the Federal

21 Government, a State, a municipality, or an Indian

22 tribe that provides, at a minimum, for semiannual

23 collection of household hazardous wastes at accessible,

24 well-publicized collection points within the relevant

25 jurisdiction.
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1 ‘‘(44) SEWAGE SLUDGE.—The term ‘sewage

2 sludge’ means solid, semisolid, or liquid residue re3 moved during the treatment of municipal waste

4 water, domestic sewage, or other waste water at or by

5 publicly owned or federally owned treatment works.

6 ‘‘(45) SITE CHARACTERIZATION.—The term ‘site

7 characterization’ means an investigation that deter8 mines the nature and extent of a release or potential

9 release of a hazardous substance, pollutant, or con10 taminant, and that includes an on site evaluation

11 and sufficient testing, sampling, and other field data

12 gathering activities to analyze whether there has been

13 a release or threat of a release of a hazardous sub14 stance, pollutant, or contaminant, and the health and

15 environmental risks posed by such a release or threat

16 of release. The investigation also may include review

17 of existing information (available at the time of the

18 review), an off-site evaluation, or other measures that

19 the Administrator considers appropriate.

20 ‘‘(46) OWNER, OPERATOR, OR LESSEE OF RESI21 DENTIAL PROPERTY.—The term ‘owner, operator, or

22 lessee of residential property’ refers to a person who

23 owns, operates, manages, or leases residential prop24 erty and who uses or allows the use of the residential

25 property exclusively for residential purposes. The
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1 term ‘residential property’ refers to single or multi2 family residences, including accessory land, buildings,

3 or improvements incidental to such dwellings, which

4 are exclusively for residential use.

5 ‘‘(47) SMALL BUSINESS.—The term ‘small busi6 ness’ refers to any business entity that employs no

7 more than 100 individuals and is a ‘small business

8 concern’ as defined under the Small Business Act (15

9 U.S.C. 631 et seq.).

10 ‘‘(48) SMALL NONPROFIT ORGANIZATION.—The

11 term ‘small nonprofit organization’ means any orga12 nization that, at the time of disposal, did not distrib13 ute any part of its income or profit to its members,

14 directors, or officers, employed no more than 100 paid

15 individuals at the involved chapter, office, or depart16 ment, and was recognized as a non-profit organiza17 tion under section 501(c) of the Internal Revenue

18 Code of 1986.’’.

19 SEC. 606. RESPONSE CLAIMS PROCEDURES.

20 (a) AMENDMENT OF SECTION 111.—Section 111(a)(2)

21 (42 U.S.C. 9611(a)(2)) is amended by inserting after

22 ‘‘under said plan’’ the phrase ‘‘, reasonable in amount based

23 on open and free competition or fair market value for simi24 lar available goods and services,’’.
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1 (b) AMENDMENT OF SECTION 112.—Section 112(a) (42

2 U.S.C. 9612(a)(2)) is amended—

3 (1) in the first sentence, by adding after ‘‘unless

4 such claim is’’ the following: ‘‘(1) accompanied by an

5 audit prepared by an independent, certified public

6 accountant, and (2)’’; and

7 (2) by inserting after the first sentence the fol8 lowing: ‘‘The Administrator reserves the right to re9 view such audits to determine that the costs for which

10 the claimant is seeking reimbursement are consistent

11 with section 111(a) and, where necessary, withhold

12 claims or a portion thereof which are inconsistent

13 with section 111(a).’’.

14 SEC. 607. SMALL BUSINESS OMBUDSMAN.

15 The Administrator of the Environmental Protection

16 Agency shall establish a small business assistance section

17 within the small business ombudsman office at the Environ18 mental Protection Agency. This section shall—

19 (1) act as a clearinghouse of information for

20 small businesses on the Comprehensive Environmental

21 Response, Compensation and Liability Act of 1980,

22 including without limitation the allocation process in

23 section 130 of the Comprehensive Environmental Re24 sponse, Compensation and Liability Act of 1980 and

25 expedited settlements under section 122(g)(1); and
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1 (2) provide general advice and assistance to

2 small businesses as to the allocation and settlement

3 processes, except that such advice and assistance shall

4 not include any legal advice as to liability or any

5 other legal representation. The ombudsman shall not

6 participate in the allocation process.

7 SEC. 608. CONSIDERATION OF LOCAL GOVERNMENT CLEAN8 UP PRIORITIES.

9 Section 104(c)(2) is amended—

10 (1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and

11 (2) by adding at the end the following new sub12 paragraph:

13 ‘‘(B) In setting priorities for scheduling work and allo14 cating oversight resources for a remedial action at a facility

15 at which a potentially responsible party that is a State or

16 local government proposes to carry out the remedial action

17 (or a portion thereof), the Administrator should give higher

18 priority to such remedial action (or portion thereof) if the

19 State or local government demonstrates that the remedial

20 action (i) will have a public benefit; and (ii) will result

21 in the property on or adjacent to the facility being returned

22 to productive use. A private potentially responsible party

23 may request similar consideration, in the Administrator’s

24 discretion. Nothing in this subparagraph shall affect the re25 sponsibility of the Administrator to schedule and oversee
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1 the conduct of remedial action so as to assure protection

2 of human health and the environment.’’.

3 SEC. 609. CONSISTENT APPLICATION AMONG REGIONAL OF4 FICES.

5 Section 115 (42 U.S.C. 9615), as amended by section

6 407, is further amended as follows:

7 (1) By inserting the following immediately before

8 ‘‘The President’’: ‘‘(a) PRESIDENTIAL RULEMAKING

9 AND DELEGATION AUTHORITY.—’’.

10 (2) By inserting at the end thereof the following

11 new subsection:

12 ‘‘(b) CONSISTENT APPLICATION AMONG REGIONAL OF13 FICES.—Each Regional Administrator should implement,

14 execute, and enforce this Act and regulations, guidance, and

15 policies established in accordance with this Act by (1) the

16 President (or by the Administrator pursuant to a delegation

17 from the President), or (2) the Administrator (or by the

18 Deputy Administrator or an Assistant Administrator pur19 suant to a delegation from the Administrator).’’.

20 SEC. 610. STUDY OF PARTICIPANTS.

21 (a) STUDY.—The Administrator shall undertake a

22 study of current Environmental Protection Agency proce23 dures for suspension and debarment of persons and business

24 entities, particularly response action contractors and to as25 sess the feasibility and cost of creating a nationwide data
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1 base to track such persons. The study shall include, but shall

2 not be limited, to the following items:

3 (1) Whether the certification process pursuant to

4 40 CFR 32 regarding debarment and suspensions is

5 sufficient to uncover those persons who have pre6 viously served as a principal of a business entity af7 filiated or unaffiliated with the certifying entity.

8 (2) Whether the 3-year period for certification is

9 a sufficient length of time to uncover past activities.

10 (3) Whether the process under Federal regula11 tions for determining false certification is sufficient,

12 particularly for those persons who are attempting to

13 hide past debarment or suspension.

14 (4) The effectiveness of the current debarment

15 and suspension procedures.

16 (5) The practicability of coordination, through a

17 central data base, with other Federal agencies the

18 tracking and sharing of data on such persons who

19 have been debarred or suspended.

20 (6) The effectiveness of debarment and suspen21 sion on the future conduct of persons or business enti22 ties with regard to compliance with Federal and

23 State environmental laws.
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1 (7) The extent of sharing data within the Envi2 ronmental Protection Agency and among its regional

3 offices.

4 (8) The cost of creating a central data base.

5 (b) REPORT AND RECOMMENDATIONS.—The Adminis6 trator shall report the findings of this study to Congress

7 within 12 months after the enactment of this Act. The Ad8 ministrator shall also make a recommendation to Congress

9 whether statutory language or further regulations are nec10 essary to correct any problems or deficiencies that may be

11 uncovered.

12 SEC. 611. PUBLIC COMMENT.

13 Nothing in this Act or any amendments made by this

14 Act shall limit the obligations of the President or the Ad15 ministrator to fully consider and respond to public com16 ments during any available comment period or otherwise

17 abridge the requirements of subchapter II of chapter 5 of

18 title 5, United States Code (commonly referred to as the

19 Administrative Procedures Act).

20 SEC. 612. CERTIFICATION OF ENVIRONMENTAL TRAINING

21 AND CERTIFICATION ORGANIZATIONS.

22 (a) REGULATIONS.—(1) Not later than 2 years after

23 enactment of this Act, the Administrator of the Environ24 mental Protection Agency shall publish guidelines, in ac25 cordance with subsection (b), for a model State program
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1 for organizations that train and certify individuals to per2 form Phase I Environmental Site Assessments.

3 (2) The guidelines published under paragraph (1) may

4 include, but not be limited to, minimum standards relating

5 to—

6 (A) formal environmental training;

7 (B) continuing environmental education;

8 (C) environmental certification and testing pro9 cedures;

10 (D) revocation and disciplinary procedures;

11 (E) establishment of a code of ethics;

12 (F) consumer education;

13 (G) certification renewal procedures; and

14 (H) annual reporting of program activities.

15 (b) ESTABLISHMENT OF THE ENVIRONMENTAL CER16 TIFICATION BOARD.—(1) Not later than 60 days after en17 actment of this Act, the Administrator of the Environ18 mental Protection Agency shall establish a certification ad19 visory board to be known as the ‘‘Environmental Certifi20 cation Board’’ (hereafter in this section referred to as the

21 ‘‘Board’’).

22 (2) The Board shall consist of a minimum of 6 mem23 bers, appointed by the Administrator, with a demonstrated

24 knowledge in the environmental field. The Board may in25 clude representatives from the Environmental Protection
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1 Agency, environmental interest organizations, the chemical/

2 manufacturing industry, the environmental consulting

3 service industry, the insurance industry, the banking/in4 vestment industry, professional societies, private sector ac5 creditation organizations, State government, and other ap6 propriate representatives with a knowledge in the environ7 mental field.

8 (3) All members of the Board shall serve on a vol9 untary basis, except those members from the Environmental

10 Protection Agency.

11 (4) The Board shall appoint 1 member to serve as

12 Chairman of the Board who shall exercise the executive and

13 administrative functions of the Board.

14 (5) Not later than 6 months after the date of enactment

15 of this Act, the Board shall issue recommendations to the

16 Administrator which shall include, but not be limited to,

17 the minimum standards to be established under subsection

18 (a).

19 (c) STATE ADOPTION OF REGULATIONS.—(1) After the

20 publication of the guidelines under subsection (a), any

21 State may adopt regulations identical (except as provided

22 in paragraph (2) of this subsection) to the guidelines pro23 mulgated by the Administrator under subsection (a)(1).

24 (2) Nothing in this section shall be construed to pre25 empt any State from issuing and enforcing, at any time,
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1 additional or more stringent guidelines and regulations re2 garding the training and certification of Phase I environ3 mental professionals.

4 (3) Nothing in this section shall be construed to require

5 a profession or occupation licensed by a State authority

6 and whose scope of practice, as defined by State law, in7 cludes Phase I Environmental Site Assessments to obtain

8 certification as a ‘‘certified Phase I Environmental Site

9 Professional’’ as a condition for performing Phase I Envi10 ronmental Site Assessments.

11 (4) Nothing in this section shall be construed to permit

12 a certified Phase I Environmental Professional to practice

13 within the scope of practice of a licensed profession or occu14 pation, as defined by State law, unless that individual also

15 meets the requirements of the State licensing statute.

16 (d) DETERMINATION OF COMPLIANCE.—(1) If a State

17 adopts the guidelines issued by the Administrator, any or18 ganization that seeks to obtain a determination of compli19 ance with the regulations set forth in subsection (c) may

20 submit to any such State, in which the organization is lo21 cated, information documenting such compliance.

22 (2) Such State shall make the determination of such

23 organization’s compliance or noncompliance with such reg24 ulations.
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1 (3) Upon a determination of compliance under para2 graph (2), the State shall issue notice in writing to such

3 organization, indicating that such organization is an ‘‘Ap4 proved Phase I Environmental Training and Certification

5 Organization’’ in accordance with this Act. Such approval

6 shall be valid for a term to be set by the State, but no longer

7 than 5 years.

8 (4) A State may charge a reasonable fee, equal to the

9 cost of determining compliance under paragraph (2), to

10 each organization that applies for such determination. Any

11 such fees shall be listed as part of the regulations promul12 gated under subsection (c).

13 (5) Any organization that has received notice of a de14 termination of compliance from a State under paragraph

15 (3), may issue a diploma, certification, or other form of

16 degree, to any individual who has completed to its satisfac17 tion such organization’s curriculum and training program

18 signifying that the recipient is a ‘‘Certified Phase I Envi19 ronmental Professional’’ qualified to perform Phase I Envi20 ronmental Site Assessments.

21 (6) A State may periodically, or upon expiration of

22 a notification of a determination of compliance under para23 graph (3), review the program, curriculum, facilities, and

24 training methods of any such organization to determine
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1 such organizations continued compliance with the regula2 tions promulgated under subsection (c).

3 (e) DEFINITIONS.—For purposes of this section:

4 (1) PHASE I ENVIRONMENTAL SITE ASSESS5 MENT.—The term ‘‘Phase I Environmental Site As6 sessment’’ means the process by which a person or en7 tity seeks to determine whether a particular parcel of

8 real property is subject to recognized environmental

9 conditions. These conditions indicate the presence or

10 likely presence of a hazardous substance or pollutant

11 or contaminant on a property under conditions that

12 indicate the existence of a release or threatened release

13 at the facility into structures on the property or into

14 the ground, ground water or surface water of the

15 property.

16 (2) CERTIFIED PHASE I ENVIORNMENTAL PRO17 FESSIONAL.—The term ‘‘Certified Phase I Environ18 mental Professional’’ means any person receiving cer19 tification to perform Phase I Environmental Site As20 sessments from an approved environmental training

21 and certification organization in accordance with this

22 section.

23 (3) APPROVED PHASE I ENVIRONMENTAL TRAIN24 ING AND CERTIFICATION ORGANIZATION.—The term

25 ‘‘Approved Phase I Environmental Training and Cer-
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1 tification Organization’’ means Phase I Environ2 mental Training and Certification Organization

3 whose curriculum, program, facilities, training, and

4 testing methods comply with the regulations adopted

5 by a State under this section.

6 SEC. 613. SAVINGS CLAUSE.

7 Nothing in this Act or any amendment made by this

8 Act shall affect the application of the Atomic Energy Act

9 of 1954 to any facility licensed by the Nuclear Regulatory

10 Commission.

11 SEC. 614. FEDERAL ENTITIES AND FACILITIES.

12 Section 120 (42 U.S.C. 9620) is amended as follows:

13 (1) By amending the heading to read as follows:

14 ‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’.

15 (2) By amending paragraph (1) of subsection (a)

16 to read as follows:

17 ‘‘(1)(A) Each department, agency, and instru18 mentality of the executive, legislative, and judicial

19 branches of the United States shall be subject to, and

20 comply with, all Federal, State, interstate and local

21 requirements, both substantive and procedural (in22 cluding any requirements for permits, reporting, or

23 any provisions for injunctive relief and such sanc24 tions as may be imposed by a court to enforce such

25 relief), regarding response actions related to, or man-
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1 agement of, hazardous substances, pollutants, or con2 taminants in the same manner, and to the same ex3 tent, as any nongovernmental entity is subject to such

4 requirements, including enforcement and liability

5 under sections 106 and 107 of this title and the pay6 ment of reasonable service charges.

7 ‘‘(B) The Federal, State, interstate, and local

8 substantive and procedural requirements referred to

9 in subparagraph (A) include, but are not limited to,

10 all administrative orders and all civil and adminis11 trative penalties and fines, regardless of whether such

12 penalties and fines are punitive or coercive in nature

13 or are imposed for isolated, intermittent, or continu14 ing violations. The United States hereby expressly

15 waives any immunity otherwise applicable to the

16 United States with respect to any such substantive or

17 procedural requirement (including, but not limited to,

18 any injunctive relief, administrative order or civil or

19 administrative penalty or fine referred to in the pre20 ceding sentence, or reasonable service charge).

21 ‘‘(C) The reasonable service charges referred to in

22 this paragraph include, but are not limited to, fees or

23 charges assessed in connection with the processing

24 and issuance of permits, renewal of permits, amend25 ments to permits, review of plans, studies, and other
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1 documents, and inspection and monitoring of facili2 ties, as well as any other nondiscriminatory charges

3 that are assessed in connection with a State, inter4 state, or local response program.

5 ‘‘(D) Neither the United States, nor any agent,

6 employee, or officer thereof, shall be immune or ex7 empt from any process or sanction of any State or

8 Federal court with respect to the enforcement of any

9 injunctive relief.

10 ‘‘(E) No agent, employee, or officer of the United

11 States shall be personally liable for any civil penalty

12 under any Federal or State response law with respect

13 to any act or omission within the scope of their offi14 cial duties. An agent, employee, or officer of the Unit15 ed States shall be subject to any criminal sanction

16 (including, but not limited to, any fine or imprison17 ment) under any Federal or State response law, but

18 no department, agency, or instrumentality of the exec19 utive, legislative, or judicial branch of the United

20 States shall be subject to any such sanctions.

21 ‘‘(F) The waiver of sovereign immunity provided

22 in this paragraph shall not apply to the extent a

23 State law would apply any standard or requirement

24 to such Federal department, agency, or instrumental25 ity in a manner which is more stringent than such
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1 standard or requirement would be applied to any

2 other person.

3 ‘‘(G) Nothing in this section shall be construed

4 to affect the liability of any person or entity other

5 than a department, agency, or instrumentality of the

6 United States under sections 9606 and 9607 of this

7 title.

8 ‘‘(H)(i) The Administrator may issue an order

9 under section 106 of this Act to any department,

10 agency, or instrumentality of the executive, legislative,

11 or judicial branch of the United States. The Adminis12 trator shall initiate an administrative enforcement

13 action against such a department, agency, or instru14 mentality in the same manner and under the same

15 circumstances as action would be initiated against

16 any other person.

17 ‘‘(ii) No administrative order issued to such de18 partment, agency, or instrumentality shall become

19 final until such department, agency, or instrumental20 ity has had the opportunity to confer with the Ad21 ministrator.

22 ‘‘(iii) Unless a State law in effect on the effective

23 date of the Superfund Reform Act of 1994, or a State

24 Constitution, requires the funds to be used in a dif25 ferent manner, all funds collected by a State from the
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1 Federal Government from penalties and fines imposed

2 for violation of any substantive or procedural require3 ment referred to in subsection (a) of this section shall

4 be used by the State only for projects designed to im5 prove or protect the environment or to defray the costs

6 of environmental protection or enforcement.

7 ‘‘(I) Each such department, agency, and instru8 mentality shall have the right to contribution protec9 tion set forth in section 113, when such department,

10 agency, or instrumentality resolves its liability under

11 this Act.’’.

12 (3) By striking paragraph (4) of subsection (a).

13 (4) By inserting ‘‘(other than the indemnifica14 tion requirements of section 119)’’ after ‘‘responsibil15 ity’’ in subsection (a)(3).

16 TITLE VII—FUNDING

Sec. 701. Authorization of appropriations.

Sec. 702. Orphan share funding.

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

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

Sec. 705. Authorization of appropriations from general revenues.

Sec. 706. Additional limitations.

Sec. 707. Uses of the fund.

17 SEC. 701. AUTHORIZATION OF APPROPRIATIONS.

18 Section 111(a) is amended by striking ‘‘$8,500,000,000

19 for the 5-year period beginning on the date of enactment

20 of the Superfund Amendments and Reauthorization Act of

21 1986, and not more than $5,100,000,000 for the period com22 mencing October 1, 1991, and ending September 30, 1994’’
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1 and inserting ‘‘$9,600,000,000 for the period commencing

2 October 1, 1994, and ending September 30, 1999’’.

3 SEC. 702. ORPHAN SHARE FUNDING.

4 Section 111(a) is amended by adding after paragraph

5 (7) (as added by this Act) the following new paragraph:

6 ‘‘(8) ORPHAN SHARE FUNDING.—Payment of or7 phan shares pursuant to section 130(e) of this Act.’’.

8 SEC. 703. AGENCY FOR TOXIC SUBSTANCES AND DISEASE

9 REGISTRY.

10 Section 111(m) (relating to ATSDR) is amended to

11 read as follows:

12 ‘‘(m) AGENCY FOR TOXIC SUBSTANCES AND DISEASE

13 REGISTRY.—There shall be directly available to the Agency

14 for Toxic Substances and Disease Registry to be used for

15 the purpose of carrying out activities described in sub16 section (c)(4) of this section and section 104(i) of this Act

17 not less than $80,000,000 per fiscal year for each of fiscal

18 years 1995, 1996, 1997, 1998, and 1999. Any funds so made

19 available which are not obligated by the end of the fiscal

20 year in which made available shall be returned to the

21 Fund.’’.

22 SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT, AND

23 DEMONSTRATION PROGRAMS.

24 Section 111(n) is amended to read as follows:
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1 ‘‘(n) LIMITATIONS ON RESEARCH, DEVELOPMENT, AND

2 DEMONSTRATION PROGRAM.—

3 ‘‘(1) SECTION 311(a).—From the amounts avail4 able in the Fund, not more than the following

5 amounts may be used for the purposes of section

6 311(a) of this title (relating to hazardous substance

7 research, demonstration, and training activities):

8 ‘‘(A) For fiscal year 1995 $40,000,000.

9 ‘‘(B) For fiscal year 1996 $50,000,000.

10 ‘‘(C) For fiscal year 1997 $55,000,000.

11 ‘‘(D) For fiscal year 1998 $55,000,000.

12 ‘‘(E) For fiscal year 1999 $55,000,000.

13 No more than 10 percent of such amounts shall be

14 used for training under section 311(a) of this title for

15 any fiscal year.

16 ‘‘(2) SECTION 311(d).—For each of the fiscal

17 years 1995, 1996, 1997, 1998, and 1999, not more

18 than $5,000,000 of the amounts available in the Fund

19 may be used for the purposes of section 311(d) of this

20 title (relating to university hazardous substance re21 search centers).’’.

22 SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM

23 GENERAL REVENUES.

24 Section 111(p)(1) is amended to read as follows:
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1 ‘‘(1) IN GENERAL.—The following sums are au2 thorized to be appropriated, out of any money in the

3 Treasury not otherwise appropriated, to the Hazard4 ous Substance Superfund:

5 ‘‘(A) For fiscal year 1995, $250,000,000.

6 ‘‘(B) For fiscal year 1996, $250,000,000.

7 ‘‘(C) For fiscal year 1997, $250,000,000.

8 ‘‘(D) For fiscal year 1998, $250,000,000.

9 ‘‘(E) For fiscal year 1999, $250,000,000.

10 In addition there is authorized to be appropriated to

11 the Hazardous Substance Superfund for each fiscal

12 year an amount equal to so much of the aggregate

13 amount authorized to be appropriated under this sub14 section (and paragraph (2) of section 131(b) of this

15 title) as has not been appropriated before the begin16 ning of the fiscal year involved.’’.

17 SEC. 706. ADDITIONAL LIMITATIONS.

18 Section 111 is amended by adding after subsection (p)

19 the following new subsections:

20 ‘‘(q) CITIZEN INFORMATION AND ACCESS OFFICES.—

21 For each of the fiscal years 1995, 1996, 1997, 1998, and

22 1999, not more than $50,000,000 of the amounts available

23 in the Fund may be used for the purposes of section 117(h)

24 of this Act (relating to citizen information and access of25 fices).
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1 ‘‘(r) VOLUNTARY RESPONSE PROGRAMS.—For each of

2 the fiscal years 1995 through 1999, not more than

3 $20,000,000 of the amounts available in the Fund may be

4 used for the purposes of section 128 of this Act (relating

5 to State voluntary cleanup programs).’’.

6 SEC. 707. USES OF THE FUND.

7 Section 111(a) is amended by adding after paragraph

8 (8) the following new paragraph:

9 ‘‘(9) REIMBURSEMENT OF POTENTIALLY RESPON10 SIBLE PARTY COSTS.—If a potentially responsible

11 party and the Administrator enter into a settlement

12 under this Act in which the Administrator is reim13 bursed for its response costs, and if the Administrator

14 determines, through a Federal audit of response the

15 costs, that costs for which the Administrator was re16 imbursed—

17 ‘‘(A) are unallowable due to contractor

18 fraud, or

19 ‘‘(B) are unallowable under the Federal Ac20 quisition Regulations, or

21 ‘‘(C) should be adjusted due to routine con22 tract and Environmental Protection Agency re23 sponse cost audit procedures,

24 then the Administrator is authorized to use the fund

25 to reimburse a potentially responsible party for any
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1 costs identified under subparagraph (A), (B), or (C)

2 of this paragraph.’’.

3 TITLE VIII—ENVIRONMENTAL

4 INSURANCE RESOLUTION FUND

Sec. 801. Short title.

Sec. 802. Definitions.

Sec. 803. Environmental Insurance Resolution Fund.

Sec. 804. Resolution offers.

Sec. 805. Documentation of claims and insurance coverage.

Sec. 806. Amount of resolution offers.

Sec. 807. Acceptance of resolution offer.

Sec. 808. Resolution payments.

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

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

Sec. 811. Stay of pending litigation.

Sec. 812. Regulations.

Sec. 813. Court jurisdiction and penalties.

Sec. 814. Miscellaneous provisions.

Sec. 815. Reports.

Sec. 816. Effective date.

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

Sec. 818. Termination of fund.

5 SEC. 801. SHORT TITLE.

6 This title may be cited as the ‘‘Environmental Insur7 ance Resolution and Equity Act of 1994’’.

8 SEC. 802. DEFINITIONS.

9 For purposes of this title:

10 (1) APPLICABLE COSTS.—The term ‘‘applicable

11 costs’’ means applicable National Priorities List

12 (NPL) facility costs or applicable non-NPL facility

13 costs. Costs of removal shall be treated as applicable

14 costs only if the removal is conducted in accordance

15 with section 104, 106 or 122 of CERCLA or under

16 the regulations of the Administrator governing re-
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1 moval actions (40 CFR 300.415 or any successor reg2 ulations).

3 (2) APPLICABLE NPL FACILITY COSTS.—The term

4 ‘‘applicable NPL facility costs’’ means the costs for an

5 eligible NPL facility, —

6 (A) of response (as defined in section

7 101(25) of CERCLA);

8 (B) for natural resources damages under

9 section 107 of CERCLA; or

10 (C) to defend potential liability for the costs

11 described in subparagraph (A) or (B) or both,

12 including, but not limited to, attorney’s fees,

13 costs of suit, consultant and expert fees and costs,

14 and expenses for testing and monitoring.

15 (3) APPLICABLE NON-NPL FACILITY COSTS.—The

16 term ‘‘applicable non-NPL facility costs’’ means the

17 costs for a non-NPL facility—

18 (A) of removal (as defined in section

19 101(23) of CERCLA); and

20 (B) to defend potential liability for such

21 costs of removal, including, but not limited to,

22 attorney’s fees, costs of suit, consultant and ex23 pert fees and costs, and expenses for testing and

24 monitoring.
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1 (4) BOARD.—The term ‘‘Board’’ means the

2 Board of Trustees of the Fund.

3 (5) CERCLA.—The term ‘‘CERCLA’’ means the

4 Comprehensive Environmental Response, Compensa5 tion and Liability Act of 1980 (42 U.S.C. 9601 et

6 seq.).

7 (6) ELIGIBLE COSTS.—The term ‘‘eligible costs’’

8 means the applicable costs incurred with respect to a

9 hazardous substance disposed of at an eligible facility

10 for which an eligible person either (A) has not been

11 reimbursed or (B) has been reimbursed and that are

12 the subject of a dispute between the eligible person

13 and an insurer. The term eligible costs shall not in14 clude any costs paid by the United States.

15 (7) ELIGIBLE FACILITY.—The term ‘‘eligible fa16 cility’’ means an eligible NPL facility or an eligible

17 non-NPL facility.

18 (8) ELIGIBLE NPL FACILITY.—The term ‘‘eligible

19 NPL facility’’ means any facility placed on the Na20 tional Priority List at any time, at which a hazard21 ous substance was disposed of on or before December

22 31, 1985.

23 (9) ELIGIBLE NON-NPL FACILITY.—The term ‘‘el24 igible non-NPL facility’’ means any site or facility

25 where a removal (as defined in section 101(23) of
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1 CERCLA) was conducted pursuant to governmental

2 direction or oversight under CERCLA and the Na3 tional Contingency Plan at any time, at which a haz4 ardous substance was disposed of on or before Decem5 ber 31, 1985.

6 (10) ELIGIBLE PERSON.—The term ‘‘eligible per7 son’’ means any person that demonstrates, to the sat8 isfaction of the Resolution Fund, that such person ei9 ther—

10 (A) has received a notice at any time that

11 it may be a potentially responsible party pursu12 ant to CERCLA with respect to an eligible NPL

13 facility, which notice requests or demands that

14 such party perform response actions or pay re15 sponse costs or natural resource damages for such

16 facility; or

17 (B) is or was liable, or alleged to be liable,

18 at any time for a removal (as defined in section

19 101(23) of CERCLA) at any eligible facility,

20 and had entered into a valid insurance contract for

21 qualified insurance.

22 (11) FACILITY.—The term ‘‘facility’’ has the

23 same meaning as provided in section 101(9) of

24 CERCLA.
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1 (12) FUND.—The term ‘‘Fund’’ means the Envi2 ronmental Insurance Resolution Fund.

3 (13) NPL.—The term ‘‘NPL’’ means the Na4 tional Priorities List.

5 (14) PERSON.—The term person means an indi6 vidual, firm, corporation, association, partnership,

7 consortium, joint venture, commercial entity or gov8 ernmental unit (including any predecessor in interest

9 or any subsidiary thereof).

10 (15) QUALIFIED INSURANCE.—The term ‘‘quali11 fied insurance’’ means insurance for comprehensive

12 general liability or commercial multi-peril insurance

13 coverage for any period prior to January 1, 1986.

14 For purposes of this paragraph, comprehensive gen15 eral liability insurance includes broad form liability,

16 general liability, commercial general liability, and ex17 cess or umbrella coverage; and commercial multi-peril

18 insurance includes broad form property, commercial

19 package, special multi-peril, and excess or umbrella

20 coverage. Such term shall not include any other in21 surance, such as environmental impairment liability

22 insurance, whether found in primary, excess, or um23 brella coverage.
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1 (16) VALID INSURANCE CONTRACT.—The term

2 ‘‘valid insurance contract’’ means a contract for

3 qualified insurance other than any of the following:

4 (A) An insurance contract with respect to

5 which a person has entered into a settlement

6 with an insurer providing, or where a final

7 judgment has provided, that the contract has

8 been satisfied and that such person has no right

9 to make any further claims under such contract.

10 (B) An insurance contract which covers

11 only a time period prior to the earliest date of

12 the action or status of the insured person which

13 resulted in liability or potential liability under

14 section 107 of CERCLA.

15 (C) An insurance contract with an insur16 ance company which is insolvent or in insol17 vency proceedings.

18 (D) An insurance contract which is the sub19 ject of a settlement between the insurance com20 pany and the insured pursuant to which the pol21 icy has been reformed to include an absolute ex22 clusion for pollution liability (‘‘absolute pollu23 tion exclusion’’).

24 (17) STATE.—The term ‘‘State’’ has the same

25 meaning as provided in section 101(27) of CERCLA.
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1 SEC. 803. ENVIRONMENTAL INSURANCE RESOLUTION

2 FUND.

3 (a) ENVIRONMENTAL INSURANCE RESOLUTION FUND

4 ESTABLISHED.—There is hereby established the Environ5 mental Insurance Resolution Fund.

6 (b) OFFICES.—The principal office of the Fund shall

7 be in the District of Columbia or at such other place as

8 the Fund may from time to time prescribe.

9 (c) STATUS OF RESOLUTION FUND.—Except as ex10 pressly provided in this title, the Fund shall not be consid11 ered an agency or establishment of the United States. The

12 members of the Board of Trustees shall not, by reason of

13 such membership, be deemed to be officers or employees of

14 the United States.

15 (d) BOARD OF TRUSTEES.—

16 (1) IN GENERAL.—The Fund shall be adminis17 tered by a Board of Trustees.

18 (2) MEMBERSHIP.—The Board shall consist of

19 the following:

20 (A) GOVERNMENTAL MEMBERS.—

21 (i) The Administrator of the Environ22 mental Protection Agency or the Adminis23 trator’s designee.

24 (ii) The Attorney General of the

25 United States or the Attorney General’s des26 ignee.
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1 (B) PUBLIC MEMBERS.—Five public mem2 bers appointed by the President not later than

3 60 days after the date of enactment of this title,

4 not less than two of whom shall represent insur5 ers subject to section ll of the Internal Reve6 nue Code of 1986, and not less than two of whom

7 shall represent eligible persons as defined in sec8 tion 802(10). The public members shall be citi9 zens of the United States.

10 (C) EX-OFFICIO MEMBER.—The Secretary of

11 the Treasury shall serve as an ex officio member

12 of the Board.

13 (3) CHAIR.—The Chair of the Board shall be des14 ignated by the President from time to time from

15 among the members described in paragraph (2)(A).

16 No expenditure may be made, or other action taken,

17 by the Fund without the concurrence of the Chair of

18 the Board.

19 (4) COMPENSATION.—Governmental members of

20 the Board shall serve without additional compensa21 tion. Public members of the Board shall, while attend22 ing meetings of the Board or while engaged in duties

23 related to such meetings or other activities of the

24 Board pursuant to this title, be entitled to receive

25 compensation at the rate of $200 per day, including
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1 travel time. While away from their homes or regular

2 places of business, members of the Board shall be al3 lowed travel and actual, reasonable and necessary ex4 penses to the same extent as officers of the United

5 States.

6 (5) TERM OF PUBLIC MEMBERS.—Public mem7 bers of the Board shall serve for a term of 5 years,

8 except that such members may be removed by the

9 President for any reason at any time. A public mem10 ber whose term has expired may continue to serve on

11 the Board until such time as the President appoints

12 a successor. The President may reappoint a public

13 member of the Board, but no such member may con14 secutively serve more than two terms.

15 (6) VACANCIES.—A vacancy on the Board shall

16 be filled in the same manner as the original appoint17 ment, except that such appointment shall be for the

18 balance of the unexpired term of the vacant position.

19 (7) QUORUM.—Four members of the Board shall

20 constitute a quorum for the conduct of business.

21 (8) MEETINGS.—The Board shall meet not less

22 than quarterly at the call of the Chair. Meetings of

23 the Board shall be open to the public unless the

24 Board, by a majority vote of members present in open

25 session, determines that it is necessary or appropriate
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1 to close a meeting. The Chair shall provide at least

2 10 days notice of a meeting by publishing a notice in

3 the Federal Register and such notice shall indicate

4 whether it is expected that the Board will consider

5 closing all or a portion of the meeting. Nothing in

6 this paragraph shall be construed to apply to infor7 mal discussions or meetings among Board members.

8 (e) OFFICERS AND EMPLOYEES.—

9 (1) CHIEF EXECUTIVE OFFICER; CHIEF FINAN10 CIAL OFFICER.—(A) The Fund shall have a Chief Ex11 ecutive Officer appointed by the Board who shall exer12 cise any authority of the Fund under such terms and

13 conditions as the Board may prescribe.

14 (B) The Fund shall have a Chief Financial Offi15 cer appointed by the Board.

16 (2) COMPENSATION.—No officer or employee of

17 the Fund may be compensated by the Fund at an an18 nual rate of pay which exceeds the rate of basic pay

19 in effect from time to time for level I of the Executive

20 Schedule under section 5312 of title 5, United States

21 Code. No officer or employee of the Fund, other than

22 a member of the Board, may receive any salary or

23 other compensation from any source other than the

24 Fund for services rendered during the period of em25 ployment by the Fund.
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1 (3) POLITICAL TEST OR QUALIFICATION.—No po2 litical test or qualification shall be used in selecting,

3 appointing, promoting, or taking other personnel ac4 tions with respect to officers, agents, and employees of

5 the Fund.

6 (4) ASSISTANCE BY FEDERAL AGENCIES.—The

7 Attorney General, the Secretary of the Treasury, and

8 the Administrator of the Environmental Protection

9 Agency, may to the extent practicable and feasible,

10 and in their sole discretion, make personnel and other

11 resources available to the Fund. Such personnel and

12 resources may be provided on a reimbursable basis,

13 and any personnel so provided shall not be considered

14 employees of the Fund for purposes of paragraph (2).

15 (f) POWERS OF RESOLUTION FUND.—Notwithstanding

16 any other provision of law, except as provided in this title

17 or as may be hereafter enacted by the Congress expressly

18 in limitation of the provisions of this subsection, the Fund

19 shall have the power—

20 (1) to have succession until dissolved by Act of

21 Congress;

22 (2) to make and enforce such bylaws, rules and

23 regulations as may be necessary or appropriate to

24 carry out the purposes of this title;
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1 (3) to make and perform contracts, agreements,

2 and commitments;

3 (4) to settle, adjust, and compromise, and with

4 or without consideration or benefit to the Fund re5 lease or waive in whole or in part, in advance or oth6 erwise, any claim, demand, or right of, by, or against

7 the Fund;

8 (5) to sue and be sued, complain and defend, in

9 any State, Federal or other court;

10 (6) to determine its necessary expenditures and

11 appoint, employ, and fix and provide for the duties,

12 compensation and benefits of officers, employees, at13 torneys, and agents, all of whom shall serve at the

14 pleasure of the Board; except that all amounts with15 drawn from the Treasury of the United States by or

16 on behalf of the Resolution Fund shall be certified by

17 a federally authorized certifying officer who is an em18 ployee of the Federal agency represented by the chair

19 of the Resolution Fund;

20 (7) to hire or accept the voluntary services of

21 consultants, experts, advisory boards, and panels to

22 aid the Fund in carrying out the purposes of this

23 title; and
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1 (8) to take such other actions as may be nec2 essary to carry out the responsibilities of the Fund

3 under this title.

4 (g) BORROWING AUTHORITY.—Nothing in this title

5 shall be construed to permit the Fund to issue any evidence

6 of indebtedness or otherwise borrow money.

7 SEC. 804. RESOLUTION OFFERS.

8 (a) IN GENERAL.—The Fund shall offer one com9 prehensive resolution to each eligible person. The offer shall

10 be for a percentage of all the eligible costs of such eligible

11 person incurred in connection with all eligible facilities.

12 The amount of the offer shall be determined pursuant to

13 section 806.

14 (b) REQUESTS FOR RESOLUTION OFFERS.—

15 (1) IN GENERAL.—An eligible person may, at

16 any time after the promulgation of the interim final

17 regulations under section 812(a), file a request for a

18 resolution offer from the Fund.

19 (2) RESPONSE TO REQUEST.—Not later than 180

20 days after the receipt of a complete request as deter21 mined by the Fund, the Fund shall in writing—

22 (A) make a resolution offer to each eligible

23 person that has filed a request for a resolution

24 offer; or
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1 (B) notify a person filing such a request

2 that such person is not an eligible person.

3 (c) JOINT VENTURES AND SUBSIDIARIES.—A joint

4 venture shall not be aggregated with any individual joint

5 venturer for purposes of this section but shall be treated as

6 a distinct entity for such purposes. All claims by subsidi7 aries shall be included in a single claim by the corporate

8 parent for purposes of this Act.

9 SEC. 805. DOCUMENTATION OF CLAIMS AND INSURANCE

10 COVERAGE.

11 (a) SCREENING OF CLAIMS.—

12 (1) DENIAL BY REASON OF FELONY.—The Fund

13 may deny a resolution offer to an otherwise eligible

14 person for a specific facility if the eligible person has

15 been convicted of a felony under any Federal or State

16 statute which has a material effect on the response

17 costs or natural resource damage incurred at the fa18 cility.

19 (2) FILING AND ACTIVE PURSUIT OF CLAIMS.—

20 The Fund may decide not to make an offer to an eli21 gible person unless the eligible person has filed a

22 claim and is actively pursuing the claim. The Fund

23 may also decide that an offer should be made to any

24 such person.
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1 (b) FILING OF CLAIMS.—For the purposes of subsection

2 (a), an eligible person shall be deemed to have filed a claim

3 if the eligible person has notified one or more of its insurers

4 of the existence of a claim, or has engaged in active inves5 tigation and preparation of a claim, or has filed a lawsuit

6 seeking coverage for eligible costs. Failure to have filed a

7 claim or to have engaged in settlement discussions before

8 January 1, 1994, shall not be deemed to preclude an eligible

9 person from receiving an offer from the Fund if the eligible

10 person had not received any notice letter from a govern11 mental authority or one or more potentially responsible

12 parties asserting its potential liability under CERCLA at

13 any eligible facility until after January 1, 1993.

14 (c) ACTIVE PURSUIT OF CLAIMS.—For purposes of this

15 section, an eligible person shall be considered to be actively

16 pursuing a claim if—

17 (1) the person has filed a lawsuit against an in18 surer, or has filed a motion or another pleading in

19 a lawsuit against an insurer, or has engaged in any

20 discovery in a lawsuit against an insurer between

21 January 1, 1993, and December 31, 1993 regarding

22 eligible costs at an eligible facility;

23 (2) the person has engaged in settlement discus24 sions with an insurer between January 1, 1993, and
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1 December 31, 1993 regarding eligible costs at an eligi2 ble facility;

3 (3) the person has engaged in active investiga4 tion and preparation of a claim before January 1,

5 1994;

6 (4) if the person has received a letter from an in7 surer rejecting coverage or reserving its rights to reject

8 coverage regarding eligible costs at an eligible facility,

9 the person has sent within 1 year thereafter an addi10 tional status report or letter apprising an insurer of

11 activities regarding an eligible facility; or

12 (5) the eligible person has sent a letter to an in13 surer notifying an insurer of the potential existence

14 of a claim regarding eligible costs at an eligible facil15 ity and has received no response from the insurer.

16 (d) DOCUMENTATION OF COVERAGE.—

17 (1) EFFECT OF DOCUMENTATION.—Coverage of

18 an eligible person for policy years prior to 1986 and

19 the applicable deductibles and limits on coverage shall

20 be confirmed to the satisfaction of the Fund by the

21 terms of the policies or other documentary proof of in22 surance provided by, or for, the eligible person in ac23 cordance with this subsection.

24 (2) SUBMISSION OF DOCUMENTARY EVIDENCE.—

25 After promulgation of regulations governing docu-
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1 mentation requirements, an eligible person requesting

2 an offer shall submit: copies of its insurance policies,

3 or other documentary evidence sufficient to establish

4 the following six terms of coverage: insurance com5 pany, policy number, type of policy, duration of pol6 icy, deductible or self-insured retention, and limit of

7 coverage. Documentary evidence may consist of any

8 documents from an insurance company or broker or

9 documents of the eligible person or other party which

10 are generally contemporaneous with the term of the

11 policy or with subsequent retrospective rating under

12 the policy. Where documentary evidence (other than a

13 policy) is relied upon as the proof of coverage, an eli14 gible person must certify that it has undertaken a

15 good faith investigation of its records, that its submis16 sion is complete and accurate to the best of its infor17 mation and belief, and that it does not have a copy

18 of the insurance policy. If an eligible person submits

19 documentary evidence which does not establish all six

20 terms of coverage but which does establish the name

21 of the insurance company and one or more other

22 terms evidencing coverage, the named insurance com23 pany shall undertake an investigation for any policy

24 or other relevant documents evidencing the eligible
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1 person’s coverage. At the conclusion of the investiga2 tion, the named insurance company shall—

3 (A) produce to the Fund any policies or

4 other documents relevant to the eligible person’s

5 claim of coverage; or

6 (B) certify that it has undertaken a good

7 faith investigation of its records and that it has

8 produced any and all policies or documents

9 available to the insurer and relevant to the eligi10 ble person’s claim of coverage.

11 Subsequent to the named insurance company’s pro12 duction or certification, the Fund shall decide whether

13 a person has provided adequate proof of insurance

14 based on the evidence presented. Submission of the six

15 terms of coverage referred to in this paragraph shall

16 be treated as adequate proof of insurance.

17 (e) PRIOR SETTLEMENTS.—

18 (1) DISCLOSURE.—Each eligible person shall be

19 required to disclose and certify the amounts and

20 terms of any settlement reached with an insurer for

21 eligible costs at eligible facilities. In the event that the

22 terms of such a settlement are subject to a protective

23 order or are otherwise confidential, the eligible person

24 may provide evidence of the confidential nature of the

25 settlement information to the Fund. Upon receipt of
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1 such evidence, the Fund shall be obligated to preserve

2 the confidentiality of all such settlement information.

3 (2) EFFECT OF TITLE ON PRIOR SETTLE4 MENTS.—This title shall have no effect on prior settle5 ments between eligible persons and an insurer.

6 SEC. 806. AMOUNT OF RESOLUTION OFFERS.

7 (a) RESOLUTION OFFERS.—The Fund shall make reso8 lution offers to each eligible person equal to the applicable

9 percentage (determined under this section) of the lesser of

10 the following:

11 (1) The eligible costs actually incurred by an eli12 gible person.

13 (2) The available coverage, as determined under

14 this section.

15 (b) APPLICABLE PERCENTAGE.—

16 (1) IN GENERAL.—For each eligible person that

17 has not established a litigation venue pursuant to

18 subsection (d), the applicable percentage shall be equal

19 to the facility location percentage for that person. For

20 each eligible person that has established one or more

21 litigation venues pursuant to subsection (d), the ap22 plicable percentage shall be comprised of one-half of

23 the facility location percentage for that person plus

24 one-half of the venue percentage for that person.

25 (2) FACILITY LOCATION PERCENTAGE.—
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1 (A) ONE OR MORE ELIGIBLE NPL FACILI2 TIES.—For each eligible person, the Fund shall

3 establish a facility location percentage. The per4 centage shall be equal to the weighted average of

5 the State percentages for each eligible NPL facil6 ity for which such person has been identified as

7 a potentially responsible party. In determining

8 such weighted average, each such eligible facility

9 shall be accorded equal value, except as provided

10 in paragraph (4).

11 (B) NO ELIGIBLE NPL FACILITIES.—For

12 each person not identified as a potentially re13 sponsible party at one or more eligible NPL fa14 cilities but who is, or is alleged to be, liable at

15 any time for removal (as defined in section

16 101(23) of CERCLA) at one or more eligible

17 non-NPL facilities, the Fund shall establish a fa18 cility location percentage equal to the weighted

19 average of the State percentages for each such eli20 gible non-NPL facility. In determining such

21 weighted average, each such facility shall be ac22 corded equal value.

23 (3) LITIGATION VENUE PERCENTAGE.—

24 (A) ONE OR MORE ELIGIBLE NPL FACILI25 TIES.—For each eligible person that has estab-
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1 lished one or more litigation venues pursuant to

2 subsection (d) with respect to one or more eligible

3 NPL facilities, the Fund shall establish a litiga4 tion venue percentage. The percentage shall be

5 equal to the weighted average of the State per6 centages for each eligible NPL facility in each

7 State in which such eligible person has estab8 lished a litigation venue. In determining such

9 weighted average, each eligible NPL facility with

10 respect to which such person has established a

11 litigation venue shall be accorded equal value.

12 (B) NO ELIGIBLE NPL FACILITIES.—For

13 each eligible person that does not have one or

14 more eligible NPL facilities and has established

15 litigation venue with respect to one or more eli16 gible non-NPL facilities pursuant to subsection

17 (d), the Fund shall establish a litigation venue

18 percentage equal to the weighted average of the

19 State percentages for each eligible non-NPL fa20 cility in each State in which such eligible person

21 has established a litigation venue. In determin22 ing such weighted average, each eligible non-NPL

23 facility with respect to which litigation venue

24 has been established shall be accorded equal

25 value.
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1 (4) EXTRA WEIGHTING OF LARGE SITES.—In de2 termining the facility location percentage under para3 graph (2)(A), the Fund shall count a facility twice for

4 weighting purposes if—

5 (A) the facility is located in the same State

6 as the State in which litigation venue has been

7 established;

8 (B) the facility is included in the eligible

9 person’s coverage litigation in that venue; and

10 (C) total response costs incurred plus esti11 mated response costs exceed $50,000,000, as es12 tablished by governmental cost summaries or de13 mands, records or decision, or evidence satisfac14 tory to the Fund of costs actually incurred.

15 (c) STATE PERCENTAGE.—

16 (1) CONGRESSIONAL FINDINGS.—The Congress

17 finds that as of January 1, 1994, State law generally

18 is more favorable to eligible persons that pursue

19 claims concerning eligible costs against insurers in

20 some States, that State law generally is more favor21 able to insurers with respect to such claims in some

22 States, and that in some States the law generally fa23 vors neither insurers nor eligible persons with respect

24 to such claims or that there is insufficient informa25 tion to determine whether such law generally favors
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1 insurers or eligible persons with respect to such

2 claims. The Congress further finds that considerations

3 of equity and fairness require that resolution offers

4 made by the Fund must vary to reflect the relative

5 state of the law among the several States.

6 (2) STATE PERCENTAGE CATEGORIES.—The

7 States are hereby classified into the following percent8 age categories:

9 (A) 20 PERCENT.—The State percentage

10 shall be 20 percent for: Florida, Maine, Mary11 land, Massachusetts, Michigan, New York, North

12 Carolina, and Ohio.

13 (B) 60 PERCENT.—The State percentage

14 shall be 60 percent for: California, Colorado,

15 Georgia, Illinois, New Jersey, Washington, West

16 Virginia, and Wisconsin.

17 (C) 40 PERCENT.—For all other States the

18 State percentage shall be 40 percent.

19 (d) LITIGATION VENUE.—For purposes of this section,

20 litigation venue is considered established with respect to an

21 eligible person if—

22 (1) on or before December 31, 1993, the eligible

23 person had pending in a court of competent jurisdic24 tion a complaint against an insurer with respect to

25 eligible costs at an eligible facility; and
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1 (2) no motion to change venue with respect to

2 such complaint was pending on or before January 31,

3 1994.

4 (e) AVAILABLE COVERAGE.—

5 (1) IN GENERAL.—The Fund shall determine the

6 available coverage for each eligible person by adding

7 the limits of liability contained in all valid insurance

8 contracts of insurance (including per occurrence, ag9 gregate, primary, excess or other limits) and then by

10 subtracting the total of all deductibles and self-insured

11 retentions applicable to those policies. In calculating

12 the available coverage and the average deductible pur13 suant to section 808(c), the Fund shall exclude any

14 deductible or self-insured retention contained in a

15 policy which has already been paid by the eligible

16 person.

17 (2) PER OCCURRENCE BASIS POLICIES.—For in18 surance policies with limits or deductibles expressed

19 on a per occurrence basis without an aggregate limit,

20 the limit or deductible shall be an amount equal to

21 the limit or deductible in the policy multiplied by the

22 number of eligible facilities of the eligible person and

23 by the number of years the policy was in effect. Per

24 occurrence limits or deductibles may be adjusted by
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1 the Fund whenever there is an increase in the eligible

2 facilities attributable to an eligible party.

3 (f) ADJUSTMENT FOR OWNED PROPERTY SITES.—

4 (1) ADJUSTMENT.—If an eligible person seeks

5 payment of eligible costs for an owned property site,

6 only 70 percent of such eligible costs (including eligi7 ble costs for off site contamination attributable to the

8 owned property) shall be taken into account in mak9 ing payments under this section.

10 (2) DEFINITIONS.—For purposes of this sub11 section—

12 (A) OWNED PROPERTY SITE.—A facility

13 shall be considered an owned property site if—

14 (i) an eligible person owned or leased

15 the facility at the time of initial disposal or

16 a predecessor company owned or leased the

17 facility at the time of initial disposal and

18 the predecessor company merged into an eli19 gible person or became the wholly owned

20 subsidiary of an eligible person;

21 (ii) the property owned or leased by

22 the eligible person or predecessor company

23 represents all or a portion of the facility as

24 specifically designated on the NPL or as

25 subject to a removal covered by this title;
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1 (iii)(I) an eligible person or prede2 cessor company generated all of the hazard3 ous substances which were disposed of dur4 ing the period such person or predecessor

5 owned or leased the facility, or (II) an eligi6 ble person or predecessor company owned a

7 landfill which is part of the property on

8 which a manufacturing or industrial facil9 ity is situated, the landfill was used for the

10 treatment, storage, or disposal of waste gen11 erated from the manufacturing or industrial

12 facility and from third parties, and the

13 landfill contains waste that is not pri14 marily municipal solid waste or sewage

15 sludge as defined in title VI of this Act; and

16 (iv) the hazardous substances associ17 ated with the owned property constitute the

18 basis for liability at the facility.

19 (B) PROPERTY NOT CONSIDERED OWNED

20 PROPERTY.—A facility shall not be considered

21 owned property of an eligible person for purposes

22 of this section when the eligible person acquired

23 the facility from, or acquired the assets of, a

24 company which engaged in initial disposal of

25 hazardous substances at the facility and the eli-
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1 gible person did not engage in initial disposal of

2 hazardous substances at the facility during its

3 period of ownership. An owned property site

4 shall not include a public or commercial landfill

5 primarily used for disposal, storage, or treat6 ment of municipal solid waste or sewage sludge

7 as defined in title VI of this Act.

8 (C) INITIAL DISPOSAL.—For purposes of

9 this paragraph, the term initial disposal means

10 the spilling, pumping, pouring, emitting,

11 emptying, discharging, injecting, dumping, dis12 posing, placing, or leaking of hazardous sub13 stances into the environment caused by the facil14 ity owner but does not include—

15 (i) any continuing or further leaking,

16 escaping, or leaching of hazardous sub17 stances into the environment during subse18 quent periods of ownership which was not

19 caused by the acts of a subsequent owner; or

20 (ii) any activities undertaken by an

21 owner related to response at the facility.

22 SEC. 807. ACCEPTANCE OF RESOLUTION OFFER.

23 (a) ACCEPTANCE.—

24 (1) ELECTION TO ACCEPT.—An eligible person

25 may, when submitting a request for a resolution to
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1 the Fund, make a written irrevocable election to ac2 cept any resolution to be made by the Fund.

3 (2) NOTIFICATION.—An eligible person that does

4 not make an election pursuant to paragraph (1) shall,

5 within 60 days of the receipt of a resolution offer

6 from the Fund, notify the Fund in writing of its ir7 revocable acceptance or rejection of such offer. An eli8 gible person who does not so accept or reject a resolu9 tion offer within 60 days shall be deemed to have

10 made an irrevocable election to reject the offer.

11 (b) ACCEPTANCE OR REJECTION PRIOR TO OFFER.—

12 Upon expiration of the 60-day period immediately follow13 ing the enactment of this Act, any eligible person may no14 tify the Fund that such eligible person accepts or rejects

15 any offer to be issued by the Fund under this title. Any

16 such notice shall be signed by a duly authorized officer of

17 the eligible person, as certified by the secretary of the eligi18 ble person or by a person with equivalent authority.

19 (c) WAIVER OF INSURANCE CLAIMS.—Any eligible per20 son accepting a resolution offer from the Fund shall agree

21 in writing, subject to reinstatement described in subsection

22 (d) to waive, stay, or dismiss any of its existing and future

23 claims against any insurer for eligible costs, including bad

24 faith claims pertaining to actions to recover eligible costs.
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1 (d) REINSTATEMENT OF INSURANCE CLAIMS.—If the

2 Fund fails to timely fulfill its obligations to an eligible per3 son under the terms of an accepted resolution offer, such

4 eligible person shall be entitled to reinstate any of its exist5 ing and future claims under a contract for insurance with

6 respect to eligible costs. A shortfall provided for in section

7 808(f) shall not be considered a failure of the Fund to time8 ly fulfill its obligations.

9 SEC. 808. RESOLUTION PAYMENTS.

10 (a) TIME OF PAYMENT; PRE-RESOLUTION COSTS.—

11 The Fund shall make equal annual payments over a period

12 of 10 years for the applicable percentage of eligible costs

13 incurred by an eligible person on or before the date such

14 person accepts a resolution offer. The Fund may, in its sole

15 discretion, make such payments over a shorter period if the

16 aggregate eligible costs do not exceed $50,000. An eligible

17 person shall submit to the Fund documentation of such costs

18 as the Fund may require. The initial payment to an eligible

19 person under this paragraph shall be made not later than

20 60 days after the receipt of documentation satisfactory to

21 the Fund. Interest shall not accrue on amounts payable

22 pursuant to a resolution offer during the 5-year period be23 ginning on the date of the enactment of this Act. In each

24 year thereafter, interest shall accrue on the unpaid balance

25 of the pre-resolution costs in an amount equal to the rate
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1 of interest on one year Treasury bills issued on the anniver2 sary of such date of enactment, or if no bills were issued

3 on such date, on the last date such bills were issued prior

4 to such anniversary.

5 (b) TIME OF PAYMENT; POST-RESOLUTION COSTS.—

6 The Fund shall make payments for eligible costs incurred

7 by an eligible person after the date such person accepts a

8 resolution offer to the eligible person, or to a contractor or

9 other person designated by the eligible person, subject to

10 such documentation as the Fund may require. Payments

11 under this title shall be made not later than 60 days after

12 the receipt of documentation (satisfactory to the Fund) with

13 respect to such costs.

14 (c) ADJUSTMENT FOR DEDUCTIBLE OR SELF INSUR15 ANCE.—In the case of an eligible person that has submitted

16 to the Fund, as proof of status as an eligible person, a valid

17 insurance contract subject to a self-insured retention or a

18 deductible, payment to such eligible person pursuant to a

19 resolution shall be reduced once by an amount equal to the

20 average of the amounts of self-insured retentions and

21 deductibles in all valid insurance contracts of insurance of

22 the eligible person. For purposes of determining such aver23 age in the case of a per occurrence deductible or self-insured

24 retention, the Fund shall only count such deductible or self25 insured retention once for each policy year.
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1 (d) ADJUSTMENT FOR CERTAIN DUTY-TO-DEFEND

2 COSTS.—If an insurer has incurred and paid costs pursu3 ant to a duty-to-defend clause contained in a contract for

4 insurance, and such costs are the subject of a dispute be5 tween the eligible person and an insurer, the Fund shall

6 reduce payment of a resolution to an eligible person by such

7 amount and pay such amount to the insurer. If such costs

8 were paid by the insurer on or before the date the eligible

9 person accepted a resolution offer made by the Fund, pay10 ment to an insurer under this section shall be made in equal

11 annual installments over a period of 10 years, and interest

12 shall not accrue with respect to such costs. The Fund may,

13 in its sole discretion, make such payments over a shorter

14 period if the aggregate costs do not exceed $50,000.

15 (e) EFFECT OF PAYMENTS.—(1) Payments made to an

16 eligible person by the Fund pursuant to a resolution offer

17 shall be treated as payments made by an insurer in satis18 faction of the terms and conditions of a contract of insur19 ance. Such payments shall be allocated pro rata to each

20 year in which proof of insurance has been established. The

21 amount allocated to each coverage year shall be allocated

22 100 percent to the primary coverage until it is exhausted

23 and then 100 percent to each successively higher layer of

24 coverage until each such layer is exhausted.
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1 (2) No insurer shall be allowed to collect recovery pur2 suant to a reinsurance contract on the basis of a payment

3 by the Fund unless such reinsurer is not subject to the fees

4 under section lll of the Internal Revenue Code or has

5 not satisfied its obligations pursuant to such fees.

6 (f) SHORTFALL.—If, in any year during the first 10

7 years after enactment, the Fund does not have sufficient

8 funds available to pay all eligible costs of resolution offers

9 accepted by eligible persons, the Fund shall determine the

10 amount of the costs which cannot be paid in that year (the

11 ‘‘shortfall’’). The Fund shall allocate the shortfall to the eli12 gible persons in proportion to the size of their pending

13 claims for reimbursement from the Fund. This shortfall

14 shall be paid to the eligible person and shall be amortized

15 over the next 5 years, and the amortized amount shall be

16 paid with interest at the rate specified for the amortization

17 of past costs. A shortfall which is being amortized hereunder

18 shall not be considered a default by the Fund, triggering

19 the reinstatement of claims.

20 (g) INTERIM ALLOCATIONS.—An eligible person ac21 cepting an offer of resolution shall be entitled to receive pay22 ment of all eligible costs which have been incurred. If an

23 eligible person obtains reimbursement of such eligible costs

24 as a result of a final allocation, contribution action, or oth25 erwise, the eligible person must notify the Fund of the
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1 amount of the reimbursement and must either (1) reduce

2 its next claim to the Fund for payment of eligible costs by

3 the amount of the reimbursement, or (2) refund the amount

4 of the reimbursement.

5 SEC. 809. REJECTION OF RESOLUTION OFFER AND REIM6 BURSEMENT TO INSURER.

7 If an eligible person rejects a resolution offer (includ8 ing a rejection pursuant to section 807(b)), litigates a claim

9 with respect to eligible costs against 1 or more insurers,

10 and obtains a final judgment against, or enters into a set11 tlement with, any such insurer, the Fund—

12 (1) shall reimburse to such insurer or insurers

13 the lesser of the amount of the resolution offer made

14 to the eligible person (or, in the case of a rejection

15 pursuant to section 807(b), the amount which the

16 Fund would have offered) or the final judgment or

17 settlement; and

18 (2) may, if the resolution offer exceeded the final

19 judgment or settlement, reimburse the insurer or in20 surers for unrecovered reasonable costs and legal fees,

21 except that the total reimbursement under this sub22 section may not exceed the amount of the resolution

23 offer to the eligible person (or, in the case of a rejec24 tion pursuant to section 807(b), the amount which the

25 Fund would have offered).
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1 Reimbursements pursuant to this subsection shall be subject

2 to such documentation as the Fund may require and shall

3 be made by the Fund not later than 60 days after receipt

4 by the Fund of a complete request for reimbursement satis5 factory to the Fund.

6 SEC. 810. FINANCIAL STATEMENTS, AUDITS, INVESTIGA7 TIONS, AND INSPECTIONS.

8 (a) IN GENERAL.—The financial statements of the

9 Fund shall be prepared in accordance with generally ac10 cepted accounting principles and shall be audited annually

11 by an independent certified public accountant in accord12 ance with the auditing standards issued by the Comptroller

13 General. Such auditing standards shall be consistent with

14 the private sector’s generally accepted auditing standards.

15 (b) INVESTIGATIONS AND OTHER AUDITS.—The In16 spector General of the Environmental Protection Agency is

17 authorized to conduct audits and investigations as the In18 spector General deems necessary or appropriate.

19 SEC. 811. STAY OF PENDING LITIGATION.

20 (a) ENACTMENT OPERATES AS STAY.—Except as pro21 vided in this section, enactment of this title shall operate

22 as a stay, applicable to all persons other than the United

23 States, of the commencement or continuation, including the

24 issuance or employment of process or service of any plead25 ing, motion, or notice, of any judicial, administrative, or
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1 other action with respect to claims for indemnity or other

2 claims arising from a valid insurance contract of qualified

3 insurance concerning insurance coverage for eligible costs.

4 (b) ACTIONS NOT AFFECTED.—Nothing in this title

5 shall be construed to authorize a stay of any action involv6 ing claims that do not concern eligible costs or a valid in7 surance contract of qualified insurance. Any such claim

8 shall be severed by operation of law from claims involving

9 eligible costs or valid contracts of insurance of qualified in10 surance, and the insured party may proceed with the pros11 ecution of the severed claims not involving eligible costs or

12 not involving qualified insurance.

13 (c) TERMINATION OF STAY.—(1) The stay established

14 by subsection (a) shall terminate with respect to an eligible

15 person upon the earlier of the following—

16 (A) The rejection of a resolution offer (including

17 an early rejection) by such eligible person pursuant

18 to section 807.

19 (B) A determination by the Fund that an offer

20 will not be made to such eligible person or that such

21 person is not an eligible person.

22 (C) A determination by the Fund pursuant to

23 section 816(b) that the minimum participation level

24 has not been achieved.
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1 (D) A failure by the Fund at any time after the

2 date 10 years after the enactment of this Act to timely

3 pay to such eligible person a resolution payment

4 equal to the total amount of eligible costs (including

5 shortfalls from prior years) required to be paid to

6 such person under a resolution offer in any year after

7 such date.

8 (2) The stay established by subsection (a) shall termi9 nate on the date that is 10 years after the enactment of

10 this Act with respect to:

11 (A) A person that becomes an eligible person on

12 or after such date.

13 (B) An eligible person that has not filed a re14 quest for a resolution offer and has not rejected a res15 olution offer pursuant to section 807(b) before such

16 date.

17 (d) AUTHORITY OF UNITED STATES UNAFFECTED.—

18 Nothing in this section shall be construed to limit or affect

19 in any way the discretion or authority of the United States

20 or any party to commerce or continue any allocation proc21 ess, cost recovery, or other action pursuant to the authority

22 of sections 101 through 122a of CERCLA.

23 (e) STATUTE OF LIMITATION TOLLED.—Notwithstand24 ing any other provision of Federal or State law, any Fed25 eral or State statute of limitation concerning the filing or
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1 prosecution of an action by an eligible person against an

2 insurer, or by an insurer against an eligible person, with

3 respect to eligible costs shall be tolled during the pendency

4 of the stay of pending litigation established by this title.

5 SEC. 812. REGULATIONS.

6 (a) PROCEDURES AND DOCUMENTATION.—Not later

7 than 120 days after the date of enactment of this title, the

8 Fund shall publish in the Federal Register for public com9 ment of not more than 60 days interim final regulations

10 concerning procedures and documentation for the submis11 sion of requests for resolution offers and the payment of ac12 cepted resolution offers. Not later than 60 days after the

13 close of the public comment period, the Fund shall publish

14 in the Federal Register final regulations concerning such

15 procedures and documentation, which may be amended by

16 the Fund from time to time. The Fund in its discretion

17 may require that requests for resolution offers made before

18 the issuance of final regulations pursuant to this subsection

19 be revised to conform to the requirements of such final regu20 lations.

21 (b) OTHER REGULATIONS.—The Fund may prescribe

22 such other regulations, rules and procedures as the Fund

23 deems appropriate from time to time.

24 (c) JUDICIAL REVIEW.—No regulation, rule or proce25 dure prescribed by the Fund shall be subject to review by
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1 any court except to the extent such regulation, rule or proce2 dure is not consistent with a provision of this title. No reso3 lution offer made by the Fund shall be subject to review

4 by any court.

5 SEC. 813. COURT JURISDICTION AND PENALTIES.

6 (a) JURISDICTION OF FEDERAL COURTS.—Notwith7 standing section 1349 of title 28, United States Code:

8 (1) The Fund shall be deemed to be an agency

9 of the United States for purposes of sections 1345 and

10 1442 of title 28, United States Code.

11 (2) All civil actions to which the Fund is a

12 party shall be deemed to arise under the laws of the

13 United States, and the district courts of the United

14 States shall have original jurisdiction of all such ac15 tions, without regard to amount or value.

16 (3) Any civil or other action, case or controversy

17 in a court of a State, or in any court other than a

18 district court of the United States, to which the Fund

19 is a party may at any time before the trial thereof

20 be removed by the Fund, without the giving of any

21 bond or security, to the district court of the United

22 States for the district and division embracing the

23 place where the same is pending, or, if there is no

24 such district court, to the district court of the United

25 States for the district in which the principal office of
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1 the Fund is located, by following any procedure for

2 removal of causes in effect at the time of such re3 moval.

4 (4) No attachment or execution shall be issued

5 against the Fund or any of its property before final

6 judgment in any State, Federal, or other court.

7 (b) FALSE OR FRAUDULENT STATEMENTS OR

8 CLAIMS.—

9 (1) CRIMINAL PENALTIES.—(A) For purposes of

10 section 287 of title 18, United States Code (relating

11 to false claims), the Fund shall be considered an agen12 cy of the United States and any officer or employee

13 of the Fund shall be considered a person in the civil

14 service of the United States.

15 (B) For purposes of section 1001 of title 18,

16 United States Code (relating to false statements or en17 tries), the Fund shall be considered an agency of the

18 United States.

19 (2) CIVIL PENALTIES.—Officers and employees of

20 the Fund shall be considered officers and employees of

21 the United States for purposes of section 3729 of title

22 31, United States Code (relating to false claims).

23 SEC. 814. MISCELLANEOUS PROVISIONS.

24 (a) ADMISSIBILITY OF RESOLUTION OFFER.—No reso25 lution offered by the Fund shall be admissible in any legal
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1 action brought by an eligible person against an insurer or

2 by an insurer against an eligible person.

3 (b) RESOLUTION PROCESS NOT ADMISSION OF LIABIL4 ITY.—No provision of this title, and no action by an eligible

5 person undertaken in connection with any provision of this

6 title shall in any way constitute an admission of liability

7 in connection with the disposal of a hazardous substance.

8 (c) PRECEDENTIAL EFFECT.—No provision of this title

9 shall affect or be construed to establish a precedent with

10 respect to any insurance dispute between any person and

11 insurer not subject to a stay under this title.

12 (d) SOVEREIGN IMMUNITY OF THE UNITED STATES.—

13 No obligation or liability of the Fund shall constitute an

14 obligation or liability of the United States, or of any de15 partment, agency, instrumentality, officer, or employee

16 thereof. No person shall have a cause of action of any kind

17 against the United States, or any department agency, in18 strumentality, officer, or employee thereof with respect to

19 any obligation, liability, or activity of the Fund.

20 SEC. 815. REPORTS.

21 (a) REPORT ON POTENTIAL FOR ESCALATION OF

22 EIRF LIABILITY.—Not later than the end of the 5th year

23 after enactment of this title, the President shall submit a

24 report to Congress assessing the potential liability of the

25 Fund over the next 5-year period. The report shall include
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1 recommendations for amendments to address any shortfalls

2 between the projected potential liability of the Fund and

3 the amounts authorized to be raised over such 5-year period.

4 (b) REPORT ON NON-NPL FACILITIES.—The President

5 shall conduct a study of the number of non-NPL facilities

6 and the average cleanup cost per non-NPL facility and

7 shall report his findings not later than 3 years after the

8 date of enactment.

9 (c) ANNUAL REPORTS.—The Fund shall report annu10 ally to the President and the Congress not later than Janu11 ary 15 of each year on its activities for the prior fiscal

12 year. The report shall include—

13 (1) a financial statement audited by an inde14 pendent auditor; and

15 (2) a determination of whether the fees and as16 sessments imposed by section ll of the Internal

17 Revenue Code of 1986 will be sufficient to meet the

18 anticipated obligations of the Fund.

19 (d) SPECIAL REPORTS.—The Fund shall promptly re20 port to the President and the Congress at any time the

21 Fund determines that the fees and assessments imposed by

22 section ll of the Internal Revenue Code of 1986 will be

23 insufficient to meet the anticipated obligations of the Fund.
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1 SEC. 816. EFFECTIVE DATE.

2 (a) IN GENERAL.—This title shall take effect on the

3 date of enactment of this Act.

4 (b) MINIMUM PARTICIPATION LEVEL BY ELIGIBLE

5 PERSONS.—

6 (1) IDENTIFICATION OF LITIGATING ELIGIBLE

7 PERSONS.—Each insurance company providing in8 surance coverage to eligible persons shall submit to

9 the Fund, within 30 days after the enactment of this

10 Act, a list of all eligible persons which filed suit

11 against that company for eligible costs prior to the

12 enactment of this Act and shall notify each eligible

13 person which is on the list.

14 (2) REQUESTS FOR APPLICABLE PERCENTAGE.—

15 Each eligible person identified on a list under para16 graph (1) shall file a request for its applicable per17 centage (as determined under section 806(b)) with the

18 Fund within 60 days after the enactment of this Act.

19 The Fund shall determine the applicable percentage of

20 the eligible person and notify the eligible person of

21 such percentage within 90 days of enactment. Each

22 eligible person receiving such notification shall decide

23 whether to accept or reject the applicable percentage

24 determination within 135 days of enactment. An eli25 gible person which has made an early acceptance or

26 rejection pursuant to section 807(b) shall be deemed
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1 to have accepted or rejected its applicable percentage,

2 as the case may be. Any eligible person which does

3 not file such a request within such period, and any

4 eligible person which files such a request and does not

5 reject the applicable percentage determination within

6 135 days after the enactment of this Act, shall be

7 deemed to have accepted the determination solely for

8 the purposes of this section.

9 (3) MINIMUM PARTICIPATION LEVEL.—Within

10 150 days after enactment, the Fund shall determine—

11 (A) the number of eligible persons on the

12 list under paragraph (1), and

13 (B) the weighted average (as determined

14 under paragraph (4)) of such eligible persons,

15 which have accepted or rejected applicable percentage

16 determinations under this subsection. If more than 15

17 percent of the eligible persons on such list or more

18 than a weighted average of 15 percent of such eligible

19 persons have rejected such determinations, the provi20 sions of this title and the insurance fee provisions of

21 title IX shall cease to have any force and effect, and

22 any fees paid by insurance companies which have not

23 been utilized for administration of the Fund shall be

24 refunded to those companies.
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1 (4) WEIGHTED AVERAGE.—The weighted average

2 of eligible persons accepting or rejecting applicable

3 percentage determinations shall be determined by

4 multiplying the acceptances or rejections by eligible

5 persons listed under paragraph (1) times the number

6 of each such person’s eligible facilities (without regard

7 to whether or not any such is the subject of any law8 suit).

9 SEC. 817. TERMINATION OF AUTHORITY TO OFFER AND AC10 CEPT RESOLUTION.

11 (a) AUTHORITY TO ACCEPT REQUEST FOR RESOLU12 TION.—The authority of the Fund to accept requests for res13 olution shall terminate on the date 10 years after the enact14 ment of this Act.

15 (b) AUTHORITY TO OFFER RESOLUTIONS.—The au16 thority of the Fund to offer resolutions to eligible persons

17 shall terminate after the date 10 years and 180 days after

18 the date of the enactment of this Act.

19 (c) CONTINUING OBLIGATIONS.—Until termination of

20 the Fund, the Fund shall continue to—

21 (1) make payments pursuant to resolution offers

22 for any eligible facility which is identified at the time

23 of acceptance of the resolution offer or within 10

24 years after the enactment of this Act; or
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1 (2) reimburse insurers with respect to litigation

2 commenced or continued in connection with a resolu3 tion offer made on or before the date 10 years after

4 the date of the enactment of this Act, where the resolu5 tion offer was rejected by an eligible person or not

6 acted upon by an eligible person.

7 SEC. 818. TERMINATION OF FUND.

8 If, during any two-year calendar period commencing

9 after the date 10 years after the date of the enactment of

10 this Act, no eligible person makes a claim to the Fund for

11 payment of eligible costs, the Fund shall terminate, and all

12 amounts remaining in the Fund shall be deposited in the

13 General Fund of the Treasury.

14 TITLE IX—TAXES

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

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

Sec. 903. Funding provisions for environmental insurance resolution fund.

Sec. 904. Resolution Fund not subject to tax.

15 SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE CODE

16 OF 1986.

17 (a) Section 59A(e)(1) of the Internal Revenue Code of

18 1986 (26 U.S.C. 59A(e)(1)) is amended by striking ‘‘Janu19 ary 1, 1996’’ and inserting instead ‘‘January 1, 2001’’.

20 (b) Section 4611(e) of the Internal Revenue Code of

21 1986 (26 U.S.C. 4611(e)) is amended—

22 (1) in paragraph (1), by striking ‘‘December 31,

23 1986’’ and inserting instead ‘‘December 31, 1995’’;
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1 (2) in paragraph (2)—

2 (A) by striking ‘‘December 31, 1993 or De3 cember 31, 1994’’ and inserting instead ‘‘Decem4 ber 31, 1998 or December 31, 1999’’;

5 (B) by striking ‘‘December 31, of 1994 or

6 1995, respectively’’ and inserting instead ‘‘De7 cember 31 of 1999 or 2000, respectively’’; and

8 (C) by striking ‘‘1994 or 1995’’ the last

9 place it appears and inserting instead ‘‘1999 or

10 2000’’;

11 (3) in paragraph (3)(A), by striking ‘‘January

12 1, 1987, and ending December 31, 1995’’ and insert13 ing instead ‘‘January 1, 1996, and ending December

14 31, 2000’’; and

15 (4) in paragraph (3)(B)—

16 (A) in the title thereof, by striking ‘‘Janu17 ary 1, 1996’’ and inserting ‘‘January 1, 2001’’;

18 and

19 (B) by striking ‘‘Fund before January 1,

20 1996’’ and inserting instead ‘‘Fund before Janu21 ary 1, 2001’’.
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1 SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON IN2 SURANCE COMPANIES.

3 (a) IN GENERAL.—The Internal Revenue Code of 1986

4 is amended by inserting after section ll the following

5 new section:

6 ‘‘§ . Environmental fees and assessments on insur7 ance companies’’.

8 [RESERVED]

9 (b) CLERICAL AMENDMENTS.—The table of sections for

10 chapter ll of the Internal Revenue Code of 1986 is

11 amended by inserting after the item relating to section ll

12 the following:

13 ‘‘§ . Environmental fees and assessments on insur14 ance companies’’.

15 SEC. 903. FUNDING PROVISIONS FOR ENVIRONMENTAL IN16 SURANCE RESOLUTION FUND.

17 (A) IN GENERAL.—

18 (1) Except as provided in section 802(f)(7) of

19 this Act, all expenditures of the Resolution Fund shall

20 be paid out of the fees and assessments imposed by

21 section ll of the Internal Revenue Code.

22 (2) Except as may be expressly authorized by the

23 Secretary of the Treasury, all funds of the Resolution

24 Fund shall be maintained in the Treasury of the

25 United States. The Secretary may provide for the dis26 bursement of such funds to the Resolution Fund or on
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1 behalf of the Resolution Fund under such procedures,

2 terms and conditions as the Secretary may prescribe.

3 (b) TRANSFER TO RESOLUTION FUND.—The Secretary

4 of the Treasury shall transfer to the Resolution Fund on

5 October 1 of fiscal year 1995, 1996, 1997, 1998 and 1999,

6 an amount equal to the fees and assessments anticipated

7 to be collected pursuant to section ll of the Internal Rev8 enue Code of 1986 during the then current fiscal year.

9 (c) ADJUSTMENTS.—In each succeeding fiscal year the

10 Secretary of the Treasury shall adjust the amounts trans11 ferred pursuant to paragraph (2) to reflect actual collections

12 of fees and assessments during the prior fiscal year, except

13 that with respect to the transfer made on October 1, 1999,

14 the Resolution Fund shall reimburse the Secretary the

15 amount of such transfer subsequently determined by the

16 Secretary to have exceeded actual collections of fees and as17 sessments during such fiscal year.

18 SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.

19 The Resolution Fund, including its capital, reserves,

20 surplus, security holdings, and income shall be exempt from

21 all taxation now or hereafter imposed by the United States

22 (including any territory, dependency or possession thereof)

23 or any State, county, municipality or local taxing author24 ity.
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Superfund

3 Reform Act of 1994’’.

4 SEC. 2. TABLE OF CONTENTS.

5 The table of contents for this Act is as fol6 lows:

Sec. 1. Short title.

Sec. 2. Table of contents.

Sec. 3. References to Comprehensive Environmental Response,

Compensation, and Liability Act of 1980.

TITLE I—COMMUNITY PARTICIPATION AND HUMAN

HEALTH

Sec. 101. Public participation.

Sec. 102. Community working groups.

Sec. 103. Hazard ranking system.

Sec. 104. Disease registry and medical care providers.

Sec. 105. Substance profiles.

Sec. 106. Determining health effects.

Sec. 107. Public health at NPL facilities.

Sec. 108. Health studies.

Sec. 109. Distribution of materials to health professionals and

medical centers.

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

activities.

Sec. 111. Public health recommendations in remedial actions.

Sec. 112. Clarification of ATSDR authority.

Sec. 113. Recruitment and training demonstration program.

Sec. 114. Transition.

TITLE II—STATE ROLES

Sec. 201. Contracts or cooperative agreements with States.

Sec. 202. State cost share.

Sec. 203. Siting.

Sec. 204. The State registry.

Sec. 205. Conforming and miscellaneous amendments.

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

Superfund.

Sec. 207. State role at Federal facilities.

TITLE III—VOLUNTARY RESPONSE

Sec. 301. Voluntary response program.

TITLE IV—LIABILITY AND ALLOCATION

Sec. 401. Information gathering and access.

Sec. 402. Compliance with administrative orders.
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Sec. 403. Limitations to liability for response costs.

Sec. 404. Liability.

Sec. 405. Civil proceedings.

Sec. 406. Limitations on contribution actions.

Sec. 407. Scope of rulemaking authority.

Sec. 408. Response action contractors.

Sec. 409. Enhancement of settlement authorities.

Sec. 410. Professional services.

Sec. 411. Final convenants.

Sec. 412. Expedited final settlements.

Sec. 413. Allocation procedures.

Sec. 414. Recycling transactions.

Sec. 415. Release of evidence.

Sec. 416. Contiguous properties.

TITLE V—REMEDY SELECTION AND CLEANUP STANDARDS

Sec. 501. Cleanup standards.

Sec. 502. Remedy selection.

Sec. 503. Miscellaneous amendments to section 121.

Sec. 504. Response authorities.

Sec. 505. Removal actions.

Sec. 506. Hazardous substance property use.

Sec. 507. Transition.

TITLE VI—MISCELLANEOUS

Sec. 601. Interagency agreements at mixed ownership and

mixed responsibility facilities.

Sec. 602. Contents of certain deeds.

Sec. 603. Transfers of uncontaminated property.

Sec. 604. Agreements to transfer by deed.

Sec. 605. Alternative or innovative treatment technologies.

Sec. 606. Definitions.

Sec. 607. Response claims procedures.

Sec. 608. Small business ombudsman.

Sec. 609. Consideration of local government cleanup priorities.

Sec. 610. Consistent application among regional offices.

Sec. 611. Study of participants.

Sec. 612. Public comment.

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

Sec. 614. Savings clause.

Sec. 615. Federal entities and facilities.

Sec. 616. Worker training and education grants.

Sec. 617. Report and oversight requirements.

Sec. 618. Remedial technologies.

Sec. 619. Addition of States to governmental entities eligible

for reimbursement for emergency removal actions; clarification of authority to take emergency

response action at illicit drug laboratories.

Sec. 620. Incentives to managing parties.

Sec. 621. Study of small disadvantaged business goals.

Sec. 622. Incineration of dioxin at Times Beach, Missouri.

Sec. 623. Conforming amendment.
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TITLE VII—FUNDING

Sec. 701. Authorization of appropriations.

Sec. 702. Orphan share funding.

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

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

Sec. 705. Authorization of appropriations from general revenues.

Sec. 706. Additional limitations.

Sec. 707. Uses of the fund.

TITLE VIII—ENVIRONMENTAL INSURANCE RESOLUTION

FUND

Sec. 801. Short title.

Sec. 802. Definitions.

Sec. 803. Environmental Insurance Resolution Fund.

Sec. 804. Resolution offers.

Sec. 805. Documentation of claims and insurance coverage.

Sec. 806. Amount of resolution offers.

Sec. 807. Acceptance of resolution offer.

Sec. 808. Resolution payments.

Sec. 809. Rejection of resolution offer and reimbursement to

insurer.

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

Sec. 811. Stay of pending litigation.

Sec. 812. Regulations.

Sec. 813. Court jurisdiction and penalties.

Sec. 814. Miscellaneous provisions.

Sec. 815. Reports.

Sec. 816. Effective date.

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

Sec. 818. Termination of fund.

TITLE IX—TAXES

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

Sec. 902. Environmental fees and assessments on insurance

companies.

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

Sec. 904. Resolution Fund not subject to tax.

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

4 Except as otherwise expressly provided,

5 whenever in this Act an amendment or repeal
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1 is expressed in terms of an amendment to, or

2 repeal of, a section or other provision, the ref3 erence shall be considered to be made to a

4 section or other provision of the Comprehen5 sive Environmental Response, Compensation,

6 and Liability Act of 1980 (commonly known as

7 ‘‘Superfund’’) (42 U.S.C. 9601 and following).

8 TITLE I—COMMUNITY PARTICI9 PATION AND HUMAN HEALTH

10 SEC. 101. PUBLIC PARTICIPATION.

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

12 striking subsection (e) and inserting the fol13 lowing:

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

15 ‘‘(1) AUTHORITY.—In accordance with

16 the rules promulgated by the Adminis17 trator, the Administrator may make

18 grants available to any group of individ19 uals which may be affected by the release

20 or threatened release of hazardous sub21 stances, pollutants, or contaminants at

22 any facility on the State Registry or the

23 National Priorities List. Such grants shall

24 be known as Technical Assistance Grants.

25 To ensure that the application process is
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1 accessible to all affected citizens, the Ad2 ministrator shall periodically review

3 such process and, based on such review,

4 shall implement appropriate changes to

5 the application process to improve ac6 cess.

7 ‘‘(2) SPECIAL RULES.—No matching

8 contribution shall be required for a Tech9 nical Assistance Grant. The President

10 shall make a portion of the grant avail11 able to the grant recipient, in advance of

12 the expenditures to be covered by the

13 grant, in $5,000 installments.

14 ‘‘(3) REPRESENTATIVE OF THE COMMU15 NITY.—The President shall publish guid16 ance for determining that the recipient of

17 any Technical Assistance Grant award is

18 a legitimate representative of the commu19 nity affected by the facility.

20 ‘‘(4) LIMIT PER FACILITY.—Not more

21 than one grant may be made under this

22 subsection with respect to a single facil23 ity, but the grant may be renewed to fa24 cilitate public participation at all stages

25 of response action. Limits shall be estab-
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1 lished with respect to the number of

2 years for which grants may be available

3 based on the duration, type, and extent of

4 response activity at a facility.

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

6 the limitations provided in paragraph (6),

7 grants shall be made available to affected

8 citizens who live in communities contain9 ing facilities in the State Registry not

10 listed on the National Priorities List.

11 ‘‘(6) FUNDING LIMIT.—Not more than 4

12 percent of the funds made available for

13 carrying out this Act for any fiscal year

14 may be used for grants under this sub15 section in that fiscal year and not more

16 than one-eighth of the funds under this

17 subsection may be used for grants with

18 respect to facilities not listed on the Na19 tional Priorities List. If such one-eighth

20 portion is not needed for such facilities,

21 such portion may be used for grants with

22 respect to facilities listed on the National

23 Priorities List.

24 ‘‘(7) FUNDING AMOUNT.—The initial

25 amount of any grant under this sub-
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1 section may not exceed $50,000 for a sin2 gle grant recipient. However, the Admin3 istrator shall increase the amount of the

4 initial grant, as appropriate, to reflect

5 the complexity of response action, the na6 ture and extent of contamination at the

7 facility, the level of facility activity, pro8 jected total needs as requested by the

9 grant recipient, the size and diversity of

10 the affected population, and the ability of

11 the grant recipient to identify and raise

12 funds from other sources.

13 ‘‘(8) AUTHORIZED GRANT ACTIVITIES.—

14 ‘‘(A) INTERPRETATION OF INFORMA15 TION.—Grants awarded under this

16 subsection may be used to obtain

17 technical assistance in interpreting

18 information with regard to (i) the na19 ture of the hazard at a facility; (ii) the

20 remedial investigation and feasibility

21 study; (iii) the record of decision; (iv)

22 the selection, design, and construc23 tion of the remedial action; (v) oper24 ation and maintenance; or (vi) re25 moval activities at such facility.
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1 ‘‘(B) ADDITIONAL ACTIVITIES.—

2 Grants awarded under this section

3 also may be used (i) to obtain tech4 nical assistance in gathering and in5 terpreting information used to rank

6 facilities according to the Hazard

7 Ranking System, (ii) for gathering in8 formation to assess a remedy selec9 tion decision, (iii) to hire health and

10 safety experts to advise affected resi11 dents on health assessment and con12 tamination data gathering efforts and

13 response activities, (iv) to hire a com14 munity liaison to potentially respon15 sible parties and government agen16 cies, (v) to hire experts to file com17 ments with governmental agencies

18 and generate other documents as nec19 essary to ensure full participation by

20 the grant recipient, (vi) to hire ex21 perts to provide input to the design

22 of any health studies that a govern23 ment agency performs, and (vii) for

24 training funds for interested affected

25 community members to enable them
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1 to more effectively participate in the

2 remedy selection process.

3 ‘‘(C) LIMITATION.—Grants awarded

4 under this section may not be used

5 for the purposes of collecting field

6 sampling data.

7 ‘‘(9) USE OF EXPERTS.—Technical or

8 other experts hired by grant recipients

9 under this subsection shall be hired by

10 such recipients pursuant to guidelines

11 developed by the Administrator.

12 ‘‘(10) NON-SITE-SPECIFIC GRANTS.—In

13 accordance with the rules promulgated

14 by the Administrator, the Administrator

15 may make Technical Assistance Grant

16 funds available to nonprofit organiza17 tions and citizens groups to enhance

18 their participation in consensus-based

19 rulemaking processes carried out in ac20 cordance with this Act. Total funding for

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

22 ‘‘(f) IMPROVING CITIZEN AND COMMUNITY

23 PARTICIPATION IN THE SUPERFUND DECISION24 MAKING PROCESS.—(1)(A) In order to provide

25 an opportunity for meaningful public partici-
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1 pation in every significant phase of response

2 activities under this Act, the President shall

3 provide the opportunity for public meetings

4 and publish a notice of such meetings before

5 or during performance of each of the follow6 ing:

7 ‘‘(i) The health assessment and the

8 preliminary assessment and site inspec9 tion, as appropriate. Where the President

10 determines a meeting is not appropriate

11 at the preliminary assessment and site in12 spection stage, the President shall pro13 vide adequate public notice of that deci14 sion.

15 ‘‘(ii) The Remedial Investigation and

16 Feasibility Study (RI/FS).

17 ‘‘(iii) The announcement of the pre18 ferred remedial alternative.

19 ‘‘(iv) The completion of the work plan

20 for the RI/FS, Remedial Design and Re21 medial Action.

22 ‘‘(B) Public meetings shall be designed to

23 obtain information from the community and

24 disseminate information to the community
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1 concerning the President’s facility activities

2 and pending decisions.

3 ‘‘(2) The President also shall provide rea4 sonable notice of an opportunity for public

5 participation in meetings in which—

6 ‘‘(A) the participants include Federal

7 officials, or State officials where the

8 State is conducting response activities,

9 with authority to make significant deci10 sions affecting a response action, and any

11 other person or persons, unless the other

12 person or persons are all coregulators

13 that are not potentially responsible par14 ties, or government contractors; and

15 ‘‘(B) the subject of the meeting in16 volves the development of the work plan

17 for the preliminary assessment and site

18 inspection, the RI/FS, Remedial Design or

19 Remedial Action, or any other phase of

20 the remedial process for facilities on the

21 National Priorities List or in the State

22 Registry.

23 ‘‘(3) To the extent practicable, before or

24 during the health assessments and site in25 spection, the President shall solicit and evalu-
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1 ate concerns, interests, and information from

2 the community likely affected by the facility.

3 The evaluation shall include, as appropriate,

4 face-to-face community surveys to identify

5 the location of private drinking water wells,

6 historic and current or potential use of water,

7 and other environmental resources in the

8 community; a public meeting; written re9 sponses to significant concerns; and other ap10 propriate participatory activities.

11 ‘‘(4) During the remedial investigation

12 and feasibility study, the President shall so13 licit the views and preferences of the affected

14 community on the remediation and disposi15 tion of hazardous substances, pollutants, or

16 contaminants at the facility. The views and

17 preferences of affected community members

18 shall be described in the remedial investiga19 tion and feasibility study and considered in

20 the screening of remedial alternatives for the

21 facility.

22 ‘‘(5) Members of the affected community

23 may propose remedial alternatives to the

24 President, and the President shall consider

25 such alternatives in the same manner as the
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1 President considers alternatives proposed by

2 potentially responsible parties.

3 ‘‘(6) The President, with the assistance of

4 the Citizen Information and Access Office (as

5 provided for in subsection (h)), shall provide

6 information to the community and seek com7 ment from affected citizens throughout all

8 significant phases of the response action at

9 the facility. The President shall ensure that

10 information gathered from affected citizens

11 during community outreach efforts reaches

12 appropriate technical staff in a timely and ef13 fective manner. The President also shall en14 sure reasonable written or other appropriate

15 responses to such information.

16 ‘‘(7) The President shall make all

17 nonprivileged information available to the

18 public throughout all phases of response ac19 tion at the facility. Such information shall be

20 made available to the public for inspection

21 and copying without the need to file a formal

22 request subject to reasonable service charges

23 as appropriate.

24 ‘‘(8)(A) The President, in carrying out re25 sponsibilities under this Act, shall ensure that
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1 the presentation of information on risk is un2 biased and informative. To the extent feasible,

3 documents made available to the general pub4 lic which purport to describe the degree of

5 risk to human health shall, at a minimum,

6 state—

7 ‘‘(i) the population or populations ad8 dressed by any risk estimates;

9 ‘‘(ii) the expected risk or central esti10 mate of risk for the specific population;

11 ‘‘(iii) any appropriate upperbound

12 and lower-bound estimates; and

13 ‘‘(iv) the reasonable range or other

14 description of uncertainties in the assess15 ment process.

16 ‘‘(B) To the extent practical and appro17 priate, the Administrator shall provide com18 parisons of the level of risk from hazardous

19 substances found at facilities to comparable

20 levels of risk from hazardous substances ordi21 narily encountered by the general public

22 through other routes of exposure.

23 ‘‘(9) Notwithstanding any other provision

24 of this subsection, in the case of a removal ac25 tion taken in accordance with section 104
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1 which is expected to extend beyond 180 days,

2 the President shall comply with the require3 ments of this section. Whenever the planning

4 period for a removal action is expected to be

5 greater than 6 months, the Administrator

6 shall provide the community with notice of

7 the anticipated removal action and a public

8 comment period of no less than 30 days.’’.

9 SEC. 102. COMMUNITY WORKING GROUPS.

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

11 adding after subsection (f) (as added by this

12 Act) the following new subsections:

13 ‘‘(g) COMMUNITY WORKING GROUPS.—

14 ‘‘(1) CREATION AND RESPONSIBILITIES.—

15 The President shall provide the oppor16 tunity for the establishment of a rep17 resentative public forum, known as a

18 Community Working Group (CWG), to

19 achieve direct, regular, and meaningful

20 consultation with all interested parties

21 throughout all stages of a response action

22 whenever—

23 ‘‘(A) the President determines

24 such a group will be helpful; or
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1 ‘‘(B) 50 citizens, or at least 20 per2 cent of the population of a locality in

3 which the National Priorities List fa4 cility is located, petition for a Com5 munity Working Group to be estab6 lished.

7 ‘‘(2) DUTIES.—Each Community Work8 ing Group shall provide information and

9 views to the President, and, as appro10 priate, any or all of the following: the

11 Agency for Toxic Substances and Disease

12 Registry, State regulatory agencies, Fed13 eral and State natural resource trustees,

14 and potentially responsible parties con15 ducting response actions. The informa16 tion and views reported shall include the

17 various subjects related to facility reme18 diation, including facility health studies,

19 potential remedial alternatives, and se20 lection and implementation of remedial

21 and removal actions. The Community

22 Working Group shall attempt to achieve

23 consensus among its members before re24 porting positions to agencies or poten25 tially responsible parties. In cases in
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1 which consensus cannot be reached, the

2 Community Working Group shall allow

3 the presentation of divergent views.

4 ‘‘(3) LAND USE RECOMMENDATIONS.—To

5 obtain greater community support for re6 medial decisions affecting future land

7 use, the President shall consult with the

8 CWG on a regular basis throughout the

9 remedy selection process regarding the

10 reasonably anticipated future use of land

11 at the facility and any institutional con12 trols required to assure that land use de13 terminations remain in effect. The CWG

14 may offer recommendations on the rea15 sonably anticipated future use of land at

16 the facility to the President at any time

17 prior to the selection of a remedy at the

18 facility. The land use recommendation

19 shall consider at a minimum future facil20 ity waste management needs and the cri21 teria in section 121(b)(2). The President

22 shall not be bound by any recommenda23 tion of the CWG. However, the President

24 shall give substantial weight to the

25 CWG’s land use recommendation when
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1 the CWG achieves consensus on the rea2 sonably anticipated future use of land at

3 the facility. In cases in which there is

4 substantive disagreement within the

5 CWG over a recommendation regarding

6 the reasonably anticipated future use of

7 land at the facility, the President shall

8 make reasonable efforts to reconcile the

9 differences. In the event of continued

10 substantive disagreement, substantial

11 weight shall be given to the views of the

12 residents in the affected community.

13 Should the President make a determina14 tion that is inconsistent with a consensus

15 CWG recommendation on the reasonably

16 expected future use of land at the facility,

17 the President shall issue a written expla18 nation for the inconsistency.

19 ‘‘(4) COMMUNITY WORKING GROUP

20 INPUT.—With the exception of land use

21 recommendations, input received from

22 the Community Working Groups shall be

23 considered by the President to be of

24 equal weight with the advice received

25 from the Technical Assistance Grant re-
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1 cipients and other affected community

2 members.

3 ‘‘(5) COMMUNITY WORKING GROUP MEM4 BERS.—Members shall serve on the Com5 munity Working Group without pay.

6 Membership on the Community Working

7 Group shall not exceed 20 persons. The

8 President shall solicit and accept nomi9 nations for the Community Working

10 Group membership. Ultimate selection of

11 CWG members shall be made by the

12 President after consultation with the Cit13 izen Information and Access Office as

14 provided for in subsection (h). The Presi15 dent shall also provide notice and oppor16 tunity to participate to persons who are

17 or historically have been disproportion18 ately affected by facility contamination

19 in their community. Each Community

20 Working Group shall, to the extent prac21 ticable, reflect the composition of the

22 community near the facility and the di23 versity of interest. Local residents shall

24 comprise no less than 50 percent of the

25 total membership of the CWG. In general,
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1 the President shall allow members of the

2 following groups representation on a

3 CWG:

4 ‘‘(A) Persons residing or owning

5 residential property near the facility

6 or persons who may be directly af7 fected by the releases from the facil8 ity. At least one person in this group

9 shall represent the Technical Assist10 ance Grant recipient if such a grant

11 has been awarded under subsection

12 (e).

13 ‘‘(B) Persons who, although not

14 residing or owning property near the

15 facility, may be potentially affected

16 by releases from the facility.

17 ‘‘(C) Members of the local medical

18 community practicing in the commu19 nity.

20 ‘‘(D) Representatives of local In21 dian tribes or Indian communities.

22 ‘‘(E) Local representatives of citi23 zen, environmental, or public interest

24 groups with members residing in the

25 community.
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1 ‘‘(F) Local government which may

2 include pertinent city or county gov3 ernments, or both, and any other gov4 ernmental unit which regulates land

5 use in the vicinity of the facility.

6 ‘‘(G) Workers at the facility who

7 will be involved in actual response

8 operations.

9 ‘‘(H) Workers employed at the fa10 cility during facility operation.

11 ‘‘(I) Facility owners and local rep12 resentatives of the significant Poten13 tially Responsible Parties (PRPs),

14 who represent, wherever practicable,

15 a balance of PRP interests.

16 ‘‘(J) Members of the local business

17 community.

18 ‘‘(6) TECHNICAL AND ADMINISTRATIVE

19 SUPPORT FOR COMMUNITY WORKING

20 GROUPS.—The President shall provide ad21 ministrative services and meeting facili22 ties for Community Working Groups. The

23 Administrator of Environmental Protec24 tion Agency, the Administrator of the

25 Agency for Toxic Substances and Disease
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1 Registry and the State, as appropriate,

2 shall participate in Community Working

3 Group meetings to provide information

4 and technical expertise, but shall not be

5 members of the Community Working

6 Group.

7 ‘‘(7) OTHER PUBLIC COMMENT.—The ex8 istence of a CWG shall not diminish any

9 other obligation of the President to con10 sider the views of any person in selecting

11 response actions under this Act.

12 ‘‘(h) CITIZEN INFORMATION AND ACCESS OF13 FICES.—

14 ‘‘(1) ESTABLISHMENT OF CITIZEN INFOR15 MATION AND ACCESS OFFICES.—Within 18

16 months after the date of enactment of the

17 Superfund Reform Act of 1994, a Citizen

18 Information and Access Office (CIAO)

19 shall be established within each State to

20 perform the functions provided in this

21 subsection. The CIAO shall be an inde22 pendent special purpose unit of the gov23 ernment, subject to the administrative

24 laws of the State, including any sunshine

25 laws. If a CIAO has not been established
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1 in a State within such 18 months, the Ad2 ministrator shall establish an office with3 in the Agency to perform the functions of

4 the CIAO in that State until such time as

5 a CIAO is established.

6 ‘‘(2) PRIMARY FUNCTIONS.—Each Citi7 zen Information and Access Office shall

8 have the following primary functions:

9 ‘‘(A) The Citizen Information and

10 Access Office shall inform citizens

11 and elected officials at all levels of

12 government of the existence of State

13 Registry and National Priorities List

14 facilities in the State.

15 ‘‘(B) The Citizen Information and

16 Access Office shall provide citizens

17 with a description of the identifica18 tion and response process under this

19 Act and citizens’ legal rights within

20 that process. It may include identi21 fication of resources, including Tech22 nical Assistance Grants, that are

23 available to assist affected citizens in

24 participating effectively in the

25 Superfund process. Information shall
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1 be disseminated in a manner that is

2 easily understood by the community,

3 considering any unique cultural

4 needs of the community, including

5 presentation of information orally

6 and distribution of information in

7 languages other than English as ap8 propriate. Other information that the

9 CIAO shall provide to the public may

10 include the following:

11 ‘‘(i) The possibility, where rel12 evant, that a community may

13 qualify to receive an alternative

14 water supply or relocation assist15 ance.

16 ‘‘(ii) The potential for or exist17 ence of a Community Working

18 Group.

19 ‘‘(iii) A description of the fa20 cility’s location and characteris21 tics, the hazardous substances,

22 pollutants or contaminants

23 present, the known exposure

24 pathways, and the steps being

25 taken to assess the risk presented
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1 by the facility. The Citizen Infor2 mation and Access Office shall

3 disseminate information charac4 terizing the risks presented by a

5 facility. Where a CIAO receives

6 conflicting information from the

7 President and the Community

8 Working Group, the CIAO will

9 make every effort to resolve any

10 apparent difference in informa11 tion on the risks present at the fa12 cility before it distributes that in13 formation to the public. Where no

14 agreement is reached among the

15 Citizen Information and Access

16 Office, the President, and the

17 Community Working Group, the

18 Citizen Information and Access

19 Office shall disseminate such in20 formation reflecting the differing

21 views about the risk presented by

22 the facility. The Citizen Informa23 tion and Access Office shall seek

24 to ensure that the information it

25 disseminates is based on the most
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1 current technical and scientific

2 data in its possession for any

3 State Registry or National Prior4 ities List facility.

5 ‘‘(C) The Citizen Information and

6 Access Office shall serve as an infor7 mation clearinghouse in each State.

8 Its functions also shall include main9 taining records of each facility’s sta10 tus and any health data generated

11 concerning National Priorities List

12 facilities in each State. The facility

13 data maintained by the Citizen Infor14 mation and Access Office shall also

15 include—

16 ‘‘(i) a record of any institu17 tional controls at all facilities in

18 the State;

19 ‘‘(ii) any annual health data

20 generated in connection with the

21 facility;

22 ‘‘(iii) the location of each facil23 ity on the State Registry;

24 ‘‘(iv) to the extent available,

25 the hazardous substances or pol-
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1 lutants or contaminants present

2 at each facility in the State, in3 cluding the volume of the hazard4 ous substances or pollutants or

5 contaminants;

6 ‘‘(v) the exposure pathways,

7 current exposure (if any), poten8 tial future exposure, and risks to

9 human health or the environ10 ment, after seeking to resolve any

11 discrepancies as provided in sub12 paragraph (B)(iii);

13 ‘‘(vi) protective concentration

14 levels established for the facility;

15 ‘‘(vii) the biennial Environ16 mental Justice Report prepared

17 pursuant to this section; and

18 ‘‘(viii) any report generated

19 during the review conducted in

20 accordance with section 121(c).

21 ‘‘(D) The Citizen Information and

22 Access Office shall assist the Adminis23 trator in the Administrator’s efforts

24 to disseminate information, notify

25 citizens of public meetings, notify po-
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1 tential Community Working Group

2 members, and other tasks, as appro3 priate.

4 ‘‘(E) The Citizen Information and

5 Access Office shall collect available

6 information from the Administrator

7 or other Federal or State agencies re8 garding the continued effectiveness

9 of removal and remedial actions

10 taken in the State.

11 ‘‘(F) The Citizen Information and

12 Access Office shall conduct outreach

13 activities and provide information to

14 small disadvantaged businesses about

15 Federal and State contracting and (to

16 the extent available) subcontracting

17 opportunities at facilities in the

18 State.

19 ‘‘(3) FUNDING.—Funding for all Citizen

20 Information and Access Offices, collec21 tively, shall not exceed $50,000,000 per

22 year. The Administrator shall publish

23 guidelines establishing a formula for de24 termining the actual amount of funding

25 for each Citizen Information and Access
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1 Office and procedures for awarding

2 grants to any CIAO. The formula shall in3 clude factors such as the number and

4 complexity of State Registry and National

5 Priorities List facilities in the State. The

6 funding shall be available directly to

7 each Citizen Information and Access Of8 fice or, in States where no CIAO is estab9 lished, the funding shall be made avail10 able to the Administrator to carry out the

11 responsibilities of this subsection in that

12 State or for the use of the entity with

13 whom the Administrator contracts to per14 form the functions of the CIAO.

15 ‘‘(4) CITIZEN INFORMATION AND ACCESS

16 OFFICE GOVERNING BOARD.—

17 ‘‘(A) ESTABLISHMENT.—Each Citi18 zen Information and Access Office

19 shall establish a volunteer Citizen

20 Governing Board which shall have

21 the ultimate responsibility for ensur22 ing that the Citizen Information and

23 Access Office is properly managed.
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1 ‘‘(B) CITIZEN INFORMATION AND AC2 CESS OFFICE GOVERNING BOARD MEM3 BERS.—

4 ‘‘(i) NOMINATIONS.—Citizens

5 active in State Registry and Na6 tional Priorities List facility com7 munities shall nominate persons

8 for board membership.

9 ‘‘(ii) APPOINTMENTS.—The Gov10 ernor of each State shall appoint,

11 from those nominees put forward,

12 between 7 and 15 citizens to serve

13 as board members.

14 ‘‘(iii) MEMBERS QUALIFICA15 TIONS.— Where possible, the Gov16 ernor shall ensure that one-half of

17 the appointees reside in commu18 nities affected by a variety of Na19 tional Priorities List facilities in

20 the State, and the other half re21 side in communities affected by a

22 variety of non-NPL State Registry

23 facilities in the State. Board mem24 bers shall have a demonstrated

25 commitment to the needs of the
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1 citizens in these communities,

2 and shall reasonably reflect the

3 racial and ethnic composition of

4 these communities. Special efforts

5 shall be made to nominate citi6 zens who are or historically have

7 been disproportionately adversely

8 affected by facility contamina9 tion.

10 ‘‘(iv) EXPERIENCE.—Where pos11 sible, Board members should have

12 a background in a field of study

13 related to the scientific and tech14 nical issues common to Superfund

15 facilities, or have practical expe16 rience related to the Superfund

17 program.

18 ‘‘(v) TERMS.—Board members

19 shall serve for limited, staggered

20 terms.

21 ‘‘(5) CITIZEN INFORMATION AND ACCESS

22 OFFICE STAFF.—Each Citizen Information

23 and Access Office shall have a permanent

24 staff to assist in carrying out its func25 tions. Staff shall have demonstrated
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1 qualifications for working with citizens

2 in communities located near State Reg3 istry or National Priorities List facilities,

4 and shall also meet other criteria estab5 lished by the President in consultation

6 with the Citizen Information and Access

7 Office Citizen Governing Board. An Exec8 utive Director or President, selected by

9 the full Governing Board, shall be re10 sponsible for all Citizen Information and

11 Access Office staffing decisions.

12 ‘‘(6) FEDERAL OVERSIGHT OF CITIZEN IN13 FORMATION AND ACCESS OFFICE.—

14 ‘‘(A) REPORT.—The Citizens Infor15 mation and Access Office shall report

16 annually to the Administrator regard17 ing performance of its duties and

18 shall provide a detailed accounting of

19 its use of funds under this section.

20 ‘‘(B) VERIFICATION BY INSPECTOR

21 GENERAL.—The Inspector General of

22 the Environmental Protection Agency

23 shall periodically review the pro24 grams and reports made under this

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

2 The Administrator may withhold any

3 funding authorized under this section

4 if the Administrator determines, after

5 notice to the affected CIAO, that the

6 CIAO has expended funds in a man7 ner inconsistent with this section.

8 ‘‘(7) CITIZEN INFORMATION AND ACCESS

9 OFFICES AND COMMUNITY WORKING GROUPS

10 FOR TRIBAL PEOPLES.—Members of Indian

11 tribes affected by a facility on the Na12 tional Priorities List may petition the Ad13 ministrator to form a body that is the

14 equivalent of a State Citizen Information

15 and Access Office. Notwithstanding the

16 creation of a tribal Citizen Information

17 and Access Office, the State Citizen Infor18 mation and Access Office shall be respon19 sible for providing information and ex20 pertise to tribal members as well as other

21 citizens in the State. Tribal members may

22 establish Community Working Groups

23 under subsection (g) regardless of wheth24 er there exists a tribal Citizen Informa-
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1 tion and Access Office or other tribal pro2 gram relating to this Act.

3 ‘‘(i) ENVIRONMENTAL JUSTICE STUDY.—

4 ‘‘(1) REPORT BY THE ADMINISTRATOR.—

5 The Administrator shall prepare and sub6 mit to Congress an Environmental Jus7 tice Study two years after the date of en8 actment of the Superfund Reform Act of

9 1994 and every 2 years thereafter. Such

10 study also shall be provided to the Citi11 zen Information Access Offices. The Ad12 ministrator and Citizen Information Ac13 cess Offices shall ensure that copies of

14 such studies are made available to the

15 public.

16 ‘‘(2) CONTENT OF THE REPORT.—The Ad17 ministrator’s report shall include an anal18 ysis of each facility which shall compare

19 information on priority setting, response

20 actions, and public participation require21 ments conducted under this Act to the

22 population, race, ethnicity, and income

23 characteristics of each community af24 fected by each facility.
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1 ‘‘(3) EVALUATION.—The Administrator

2 shall evaluate the information in the

3 study to determine whether priority set4 ting, response actions, and public partici5 pation requirements were conducted in a

6 fair and equitable manner and identify

7 program areas that require improve8 ments or modification.

9 ‘‘(4) ACTIONS BASED ON EVALUATION.—

10 The Administrator shall institute the nec11 essary improvements or modifications to

12 address any deficiencies identified in the

13 study prepared under this section.’’.

14 SEC. 103. HAZARD RANKING SYSTEM.

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

16 9605(a)) is amended as follows:

17 (1) By inserting after subsection (g)

18 the following new subsections:

19 ‘‘(h) HAZARD RANKING SYSTEM.—In setting

20 priorities under subsection (a)(8), the Presi21 dent—

22 ‘‘(1) shall group facilities together,

23 even if they are not adjacent or geo24 graphically juxtaposed, and score them

25 as a single facility where more than one
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1 facility listed on the State Registry re2 sults in hazardous substances exposures

3 to the same population;

4 ‘‘(2) may take into account to the

5 maximum extent technically feasible any

6 history of exposure to hazardous sub7 stances in the community regardless of

8 the source of exposure, in placing facili9 ties on the National Priorities List;

10 ‘‘(3) shall take into account the use of

11 land or waterways for subsistence, reli12 gious, spiritual, or cultural practices

13 where such use results in additional ex14 posures, in placing facilities on the Na15 tional Priorities List;

16 ‘‘(4) shall conduct interviews with

17 persons affected by the facility and living

18 in the community and solicit their input

19 and information in the hazard ranking

20 system evaluation; and

21 ‘‘(5) shall place highest priority on fa22 cilities with releases of hazardous sub23 stances which result in actual ongoing

24 human exposures at levels resulting in

25 demonstrated adverse health effects as
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1 shown in a health assessment conducted

2 by the Agency for Toxic Substances and

3 Disease Registry.

4 ‘‘(i) ENVIRONMENTAL JUSTICE FACILITY

5 SCORING.—The Administrator shall evaluate

6 major urban areas and any other areas where

7 environmental justice concerns may warrant

8 special attention (such as tribal lands or poor

9 rural communities) and identify 5 facilities in

10 each region of the Environmental Protection

11 Agency that are, or that should be, on the

12 State Registry and that are likely to warrant

13 inclusion on the National Priorities List.

14 These facilities shall be accorded a priority in

15 evaluation for NPL listing and scoring, and

16 shall be evaluated for listing within 2 years

17 after the date of enactment of the Superfund

18 Reform Act of 1994.’’.

19 (2) By striking the period at the end

20 of paragraph (10) of subsection (a) and

21 inserting a semicolon and by adding the

22 following new paragraphs after such

23 paragraph (10):

24 ‘‘(11) a process and procedure for re25 viewing petitions to reevaluate a facility
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1 not on the National Priorities List for in2 clusion on the National Priorities List

3 where paragraphs (1), (2), and (3) of sub4 section (h) are relevant; and

5 ‘‘(12) alternative procedures for con6 ducting response measures, including re7 medial investigations, feasibility studies,

8 remedial designs, and remedial actions,

9 which procedures shall—

10 ‘‘(A) utilize a results-oriented ap11 proach in order to minimize the time

12 required to conduct response meas13 ures, and reduce the potential for ex14 posure to hazardous substances, in an

15 efficient, timely, and cost-effective

16 manner; and

17 ‘‘(B) be conducted in accordance

18 with specified methods and criteria,

19 including directives, standards, and

20 time limits, for the implementation of

21 the alternative procedures.’’.

22 (b) PROCEDURES.—The national contin23 gency plan shall be amended within 180 days

24 after the date of the enactment of this Act to

25 include procedures required by section
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1 105(a)(12) of the Comprehensive Environ2 mental Response, Compensation, and Liabil3 ity Act of 1980, after notice and opportunity

4 for public comment. Procedures described in

5 such section shall be subject to the require6 ments of section 117, section 120, section 121,

7 and any other provision of such Act in the

8 same manner and to the same degree as these

9 sections and provisions apply to such re10 sponse measures.

11 SEC. 104. DISEASE REGISTRY AND MEDICAL CARE PROVID12 ERS.

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

14 amended as follows:

15 (1) By amending subparagraph (A) to

16 read as follows:

17 ‘‘(A) in cooperation with the States,

18 for scientific purposes and public health

19 purposes, establish and maintain a na20 tional registry of persons exposed to

21 toxic substances;’’.

22 (2) In subparagraph (E), by striking

23 ‘‘admission to hospitals and other facili24 ties and services operated or provided by

25 the Public Health Service’’ and inserting
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1 ‘‘referral to accredited medical care pro2 viders’’.

3 SEC. 105. SUBSTANCE PROFILES.

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

5 amended as follows:

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

7 (2) By redesignating subparagraphs

8 (A), (B), and (C) as clauses (i), (ii), and

9 (iii), respectively.

10 (3) By striking out the matter begin11 ning with ‘‘Any toxicological profile or re12 vision thereof’’ and all that follows

13 through the end of such paragraph and

14 inserting in lieu thereof the following:

15 ‘‘(B) Any toxicological profile or revision

16 thereof shall reflect the Administrator of

17 ATSDR’s assessment of all relevant toxi18 cological testing which has been peer re19 viewed. The profiles prepared under this

20 paragraph shall be for those substances high21 est on the list of priorities under paragraph

22 (2) for which profiles have not previously

23 been prepared or for substances not on the

24 listing but which have been found at non-Na25 tional Priorities List facilities and which have
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1 been determined by ATSDR to be of critical

2 health concern. Profiles required under this

3 paragraph shall be revised and republished as

4 necessary, based on scientific need. Such pro5 files shall be provided to the States and made

6 available to other interested parties.’’.

7 SEC. 106. DETERMINING HEALTH EFFECTS.

8 Section 104(i)(5)(A) (42 U.S.C.

9 9604(i)(5)(A)) is amended as follows:

10 (1) By striking ‘‘designed to deter11 mine the health effects (and techniques

12 for development of methods to determine

13 such health effects) of such substance’’

14 and inserting ‘‘conducted directly or by

15 means such as cooperative agreements

16 and grants with appropriate public and

17 nonprofit institutions. The research shall

18 be designed to determine the health ef19 fects (and techniques for development of

20 methods to determine such health ef21 fects) of the substance’’.

22 (2) By redesignating clause (iv) as

23 clause (v).

24 (3) By striking ‘‘and’’ at the end of

25 clause (iii).
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1 (4) By inserting after clause (iii) the

2 following new clause:

3 ‘‘(iv) laboratory and other studies

4 which can lead to the development of in5 novative techniques for predicting organ6 specific, site-specific, and system-specific

7 acute and chronic toxicity; and’’.

8 SEC. 107. PUBLIC HEALTH AT NPL FACILITIES.

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

10 amended as follows:

11 (1) By amending subparagraph (A) to

12 read as follows:

13 ‘‘(A) The Administrator of ATSDR shall

14 perform a public health assessment for each

15 facility, including those facilities owned by

16 any department, agency, or instrumentality of

17 the United States, on the National Priorities

18 List established under section 105 of this Act.

19 The public health assessment shall be com20 menced as soon as practicable after each fa21 cility is proposed for inclusion on the Na22 tional Priorities List and shall be completed

23 not later than the date of issuance of a reme24 dial investigation and feasibility study for the

25 facility to allow full consideration in selecting
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1 the remedial action of the public health

2 implicaitons of any release.’’.

3 (2) In subparagraph (D), by inserting

4 ‘‘(i)’’ after ‘‘(D)’’ and by adding the follow5 ing at the end of the subparagraph: ‘‘The

6 Administrator and the Administrator of

7 ATSDR shall develop strategies to obtain

8 relevant on-site and off-site characteriza9 tion data for use in the health assess10 ment. The Administrator shall, to the

11 maximum extent practicable, provide the

12 Administrator of ATSDR with the data

13 and information necessary to make pub14 lic health assessments sufficiently prior

15 to the initiation of remedial actions to

16 allow ATSDR to complete these assess17 ments. Where deemed appropriate, the

18 Administrator of ATSDR shall provide to

19 the Administrator as soon as practicable

20 after site discovery, recommendations for

21 sampling environmental media for haz22 ardous substances of public health con23 cern. To the extent feasible, the Adminis24 trator shall incorporate such rec-
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1 ommendations into its site investigation

2 activities.

3 ‘‘(ii) In order to improve community in4 volvement in health assessments, the Admin5 istrator of ATSDR shall carry out each of the

6 following duties:

7 ‘‘(I) The Administrator of ATSDR

8 shall actively collect data from Commu9 nity Working Groups (‘Community Work10 ing Groups’) and from other sources in

11 communities affected or potentially af12 fected by releases of hazardous sub13 stances, pollutants, or contaminants re14 garding exposure, relevant human activi15 ties, and other factors.

16 ‘‘(II) The Administrator of ATSDR

17 shall design health assessments that take

18 into account the needs and conditions of

19 the affected community. Community20 based research models, building links to

21 local expertise and local health resources

22 should be used. Each Community Work23 ing Group (or affected community where

24 no Community Working Group exists)

25 shall be permitted to play an active and
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1 early role in reviewing health assessment

2 designs. In preparing such designs, em3 phasis shall be placed on collection of ac4 tual exposure data and sources of mul5 tiple exposure shall be considered.’’.

6 (3) In subparagraph (H), by striking

7 ‘‘health assessment’’ each place it appears

8 and inserting ‘‘public health assessment’’.

9 SEC. 108. HEALTH STUDIES.

10 Subparagraph (A) of section 104(i)(7) (42

11 U.S.C. 9604(i)(7)) is amended to read as fol12 lows: ‘‘(A) Whenever in the judgment of the

13 Administrator of ATSDR it is appropriate on

14 the basis of the results of a public health as15 sessment or on the basis of other appropriate

16 information, the Administrator of ATSDR

17 shall conduct a human health study of expo18 sure or other health effects for selected

19 groups or individuals in order to determine

20 the desirability of conducting full scale epi21 demiologic or other health studies of the en22 tire exposed population.’’.
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1 SEC. 109. DISTRIBUTION OF MATERIALS TO HEALTH PRO2 FESSIONALS AND MEDICAL CENTERS.

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

4 9604(i)) is amended to read as follows:

5 ‘‘(14) In implementing this subsection and

6 other health-related provisions of this Act in

7 cooperation with the States, the Adminis8 trator of ATSDR shall—

9 ‘‘(A) assemble, develop as necessary,

10 and distribute to the States, medical col11 leges, physicians, nursing institutions,

12 nurses, and other health professionals

13 and medical centers, appropriate edu14 cational materials (including short

15 courses) on the medical surveillance,

16 screening, and methods of prevention, di17 agnosis, and treatment of injury or dis18 ease related to exposure to hazardous

19 substances (giving priority to those listed

20 in paragraph (2)), through means the Ad21 ministrator of ATSDR considers appro22 priate; and

23 ‘‘(B) assemble, develop as necessary,

24 and distribute to the general public and

25 to at-risk populations appropriate edu26 cational materials and other information
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1 on human health effects of hazardous

2 substances.’’.

3 SEC. 110. GRANT AWARDS, CONTRACTS, AND COMMUNITY

4 ASSISTANCE ACTIVITIES.

5 Section 104(i)(15) (42 U.S.C. 6904(i)(15)) is

6 amended as follows:

7 (1) By inserting ‘‘(A)’’ before ‘‘The ac8 tivities’’.

9 (2) In the first sentence, by striking

10 ‘‘cooperative agreements with States (or

11 political subdivisions thereof)’’ and in12 serting ‘‘grants, cooperative agreements,

13 or contracts with States (or political sub14 divisions thereof), other appropriate pub15 lic authorities, public or private institu16 tions, colleges, universities, and profes17 sional associations giving consideration

18 to those colleges and universities that are

19 historically black colleges and univer20 sities and to other educational institu21 tions that primarily serve minorities or

22 represent the interests of affected com23 munities’’.

24 (3) In the second sentence, by insert25 ing ‘‘public’’ before ‘‘health assessments’’.
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1 (4) By adding at the end the following

2 new subparagraphs:

3 ‘‘(B) When a public health assessment is

4 conducted at a facility on the National Prior5 ities List, or a release is being evaluated for

6 inclusion on the National Priorities List, the

7 Administrator of ATSDR may provide the as8 sistance specified in this paragraph to public

9 or private nonprofit entities, individuals, and

10 community-based groups that may be affected

11 by the release or threatened release of haz12 ardous substances in the environment.

13 ‘‘(C) The Administrator of the Agency for

14 Toxic Substances and Disease Registry, pur15 suant to the grants, cooperative agreements

16 and contracts referred to in this paragraph,

17 is authorized and directed to provide for the

18 establishment of environmental health clin19 ics, or health services in existing clinics, serv20 ing communities affected by the release of

21 hazardous substances. Such clinics shall pro22 vide diagnostic services, specialized treat23 ment, health data registries and preventative

24 public health education.’’.
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1 SEC. 111. PUBLIC HEALTH RECOMMENDATIONS IN REME2 DIAL ACTIONS.

3 Section 121(c) (42 U.S.C. 9621(c)) is amend4 ed in the first sentence by inserting after ‘‘re5 medial action’’ the second time it appears the

6 following: ‘‘, including public health rec7 ommendations and decisions resulting from

8 activities under section 104(i),’’.

9 SEC. 112. CLARIFICATION OF ATSDR AUTHORITY.

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

11 amended by inserting ‘‘establishment of envi12 ronmental health clinics and health services,’’

13 after ‘‘assessments,’’.

14 SEC. 113. RECRUITMENT AND TRAINING DEMONSTRATION

15 PROGRAM.

16 (a) IN GENERAL.—The Administrator of the

17 Environmental Protection Agency is author18 ized to carry out a demonstration program to

19 assist in the recruitment and training of indi20 viduals from areas affected by National Prior21 ity List facilities for employment in remedi22 ation activities conducted at such facilities.

23 (b) FUNDING.—Amounts made available

24 from the Hazardous Substance Response

25 Fund by section 111(q) of the Comprehensive

26 Environmental Response, Compensation, and
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1 Liability Act of 1980 shall also be available to

2 carry out this section.

3 SEC. 114. TRANSITION.

4 (a) EFFECTIVE DATE IN GENERAL.—Except

5 as provided in subsection (b), this title and

6 the amendments made by this title shall be7 come effective upon the date of enactment of

8 this Act.

9 (b) SPECIAL RULE.—The requirements of

10 paragraphs (1) through (4) of section 117(f)

11 and paragraph (1) of section 117(g) of the

12 Comprehensive Environmental Response,

13 Compensation, and Liability Act of 1980, as

14 added by sections 101 and 102, shall become

15 effective 180 days after the date of enactment

16 of this Act.

17 TITLE II—STATE ROLES

18 SEC. 201. CONTRACTS OR COOPERATIVE AGREEMENTS

19 WITH STATES.

20 Title I is amended by adding after section

21 126 the following new section:

22 ‘‘SEC. 127. CONTRACTS OR COOPERATIVE AGREEMENTS

23 WITH STATES.

24 ‘‘(a) IN GENERAL.—
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1 ‘‘(1) APPLICATION FOR AUTHORITY TO

2 TAKE PREREMEDIAL ACTION AT NON-NPL FA3 CILITIES.—A State may apply to the Ad4 ministrator to take or require

5 preremedial actions (including removal

6 actions) under a contract or cooperative

7 agreement as provided in this section at

8 any non-federally owned or operated fa9 cility within the boundaries of the State

10 that is not listed on the National Prior11 ities List (NPL).

12 ‘‘(2) APPLICATION FOR AUTHORITY TO

13 TAKE RESPONSE ACTION AT NPL FACILITIES.—

14 A State may apply to the Administrator

15 to take or require response actions, in16 cluding selection and enforcement of re17 medial actions and use of allocation pro18 cedures under section 130, under a con19 tract or cooperative agreement as pro20 vided in this section at any non-federally

21 owned or operated facility within the

22 boundaries of the State that is listed on

23 the National Priorities List (NPL) or to

24 take or require removal actions at any fa-
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1 cility proposed for listing on the National

2 Priorities List.

3 ‘‘(3) APPROVAL OF APPLICATION.—The

4 Administrator shall enter into a contract

5 or cooperative agreement under this sec6 tion if the Administrator determines that

7 the State—

8 ‘‘(A) meets the qualification re9 quirements set forth in the regula10 tions promulgated pursuant to sub11 section (b); and

12 ‘‘(B) with respect to authority to

13 select remedial actions and use allo14 cation procedures, meets the quali15 fication requirements set forth in

16 subsection (c).

17 ‘‘(b) REGULATIONS.—The Administrator, in

18 consultation with the States, shall promulgate

19 regulations to implement this section. The

20 regulations shall provide such additional

21 qualifications for a contract or cooperative

22 agreement under this section as the Adminis23 trator considers reasonable, including quali24 fications applicable to particular types of

25 preremedial or response actions. The regula-
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1 tions shall include a requirement that, in

2 order for a State to qualify for a contract or

3 cooperative agreement with respect to a facil4 ity under this section, the State may not be a

5 major potentially responsible party with re6 spect to that facility.

7 ‘‘(c) QUALIFICATION REQUIREMENTS WITH

8 RESPECT TO SELECTION OF REMEDIAL ACTION

9 AND USE OF ALLOCATION PROCEDURES.—For

10 purposes of subsection (a)(3)(B), with respect

11 to a contract or cooperative agreement under

12 this section for authority to select remedial

13 action or to use the allocation procedures

14 under section 130, the Administrator also

15 shall make each of the following determina16 tions:

17 ‘‘(1) The State has the capability to se18 lect remedial actions or to use the alloca19 tion procedures under section 130, in20 cluding adequate legal authority, finan21 cial and personnel resources, organiza22 tion, and expertise.

23 ‘‘(2) The State meets any other quali24 fications set forth in the regulations pro25 mulgated under subsection (b) for select-
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1 ing remedial actions or using the alloca2 tion procedures.

3 ‘‘(3) The State demonstrates a histori4 cal record of performing similar response

5 actions.

6 ‘‘(d) REQUIREMENTS FOR SELECTION OF RE7 MEDIAL ACTION.—In any contract or coopera8 tive agreement that allows a State to select re9 medial actions, the State shall agree to select

10 such remedial actions in accordance with all

11 of the procedures and requirements set forth

12 in sections 117 and 121 of this Act, the Na13 tional Contingency Plan, and any other rel14 evant regulations and guidelines adopted by

15 the Administrator.

16 ‘‘(e) STATE AUTHORITY REGARDING EN17 FORCEMENT OF SELECTED REMEDIAL ACTION.—

18 (1) A State that selects a remedial action pur19 suant to a contract or cooperative agreement

20 entered into under subsection (a) shall have

21 the authority to enforce the requirements of

22 such remedial action pursuant to section

23 121(f)(4).

24 ‘‘(2) Such State also shall have the author25 ity to enforce compliance with any standard,
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1 regulation, condition, requirement, order, or

2 final determination of the State with respect

3 to the remedial action. Such State also may

4 seek civil penalties not to exceed $25,000 per

5 day for any violation of such standard, regula6 tion, condition, requirement, order, or final

7 determination. Such State may commence an

8 action seeking such relief unless the stand9 ard, regulation, condition, requirement,

10 order, or final determination is arbitrary, ca11 pricious, or contrary to law when reviewed

12 upon the administrative record presented by

13 the State.

14 ‘‘(3) In addition, if expressly provided in

15 the contract or cooperative agreement, such

16 State may waive a Federal requirement appli17 cable to the remedial action in accordance

18 with section 121.

19 ‘‘(f) REQUIREMENTS FOR ENFORCEMENT AND

20 ALLOCATION.—

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

22 contract or cooperative agreement pro23 viding for a State to initiate an enforce24 ment action with respect to a facility for

25 purposes of recovering costs or compel-
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1 ling performance of a remedy at the facil2 ity, the contract or cooperative agree3 ment shall require the State to provide

4 for expedited settlements under section

5 122.

6 ‘‘(2) USE OF ALLOCATION PROCEDURES.—

7 (A) In the case of a contract or coopera8 tive agreement providing for a State to

9 initiate an enforcement action with re10 spect to a facility subject to mandatory

11 allocation pursuant to section 130(a)(1),

12 the contract or cooperative agreement

13 shall require the State to use allocation

14 procedures with respect to the facility.

15 The contract or cooperative agreement

16 shall require the State to initiate the allo17 cation process by certifying each of the

18 following:

19 ‘‘(i) The State has completed a po20 tentially responsible party search

21 substantially consistent with sub22 section (c) of section 130 and will

23 make the results of that search avail24 able to the allocator and the parties.
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1 ‘‘(ii) The State has notified Fed2 eral, State, and tribal natural re3 source trustees of the commencement

4 of the allocation process and, pursu5 ant to section 104(b)(2), of potential

6 damages to natural resources.

7 ‘‘(iii) The facility would be subject

8 to mandatory allocation under sec9 tion 130(a)(1) if the President were

10 conducting the response action.

11 ‘‘(B) After the State has made a cer12 tification under subparagraph (A), the

13 Administrator shall initiate an allocation

14 in accordance with the terms of section

15 130. The Administrator may assign to the

16 State, by cooperative agreement or other17 wise, any responsibilities to conduct the

18 allocation, except that the Administrator

19 and Attorney General shall retain their

20 authority relating to orphan share fund21 ing as provided by this paragraph and in

22 section 130, including the timing and

23 terms of payment.

24 ‘‘(C) The State may accept or reject

25 the allocation report on the same basis as
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1 provided in section 130(l). If the State

2 does not reject the allocation, it shall use

3 the allocator’s report as the basis of State

4 settlements. The State may recover the

5 costs of the allocation pursuant to State

6 law or the provisions of this Act.

7 ‘‘(D) The President, through either

8 the Administrator or the Attorney Gen9 eral, or both, may participate in any

10 phase of an allocation proceeding where

11 an orphan share is identified according

12 to the factors set forth in section 130.

13 ‘‘(E) If the State accepts an allocation

14 report as the basis for its settlements,

15 and the allocation report identifies an or16 phan share subject to Federal funding,

17 the State shall apply for such funding by

18 certifying each of the following to the Ad19 ministrator and the Attorney General:

20 ‘‘(i) The allocation presents a rea21 sonable basis for resolving respon22 sibility for the facility.

23 ‘‘(ii) The assignment of an orphan

24 share shall be in accordance with sec25 tion 130.
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1 ‘‘(F) The Administrator and the Attor2 ney General shall accept a State’s request

3 for orphan share funding supported by

4 an allocation report and the certification

5 described in subparagraph (E), unless the

6 Administrator and Attorney General de7 termine, within 120 days after the re8 quest by the State, that the allocation

9 does not meet the standards set forth in

10 section 130. Such determination shall be

11 made in the same manner, and shall be

12 subject to the same limitations, as set

13 forth in section 130.

14 ‘‘(G) The contract or cooperative

15 agreement shall provide the following:

16 ‘‘(i) The Administrator may de17 duct from orphan share funding the

18 costs incurred in conducting the allo19 cation.

20 ‘‘(ii) The State may use the or21 phan share funding only to fund re22 sponse actions through settlement or

23 to reimburse parties performing work

24 in excess of the share assigned to

25 them in allocation. No such reim-
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1 bursement may exceed the reim2 bursement level available under sec3 tion 130.

4 ‘‘(H) The State may recover funds pro5 vided through orphan share funding from

6 nonsettling responsible parties pursuant

7 to State law or the provisions of this Act.

8 Seventy-five percent of such recoveries

9 shall be returned to the Fund. The re10 maining 25 percent shall be used for any

11 other response action by the recovering

12 State.

13 ‘‘(3) COVENANTS.—(A) In a case in

14 which either the President, acting under

15 the authority of this Act, or a State, act16 ing pursuant to a contract or cooperative

17 agreement under this section, has respon18 sibility for selecting a response action at

19 a facility listed or proposed for listing on

20 the National Priorities List and enters an

21 administrative or judicial settlement to

22 resolve the liability of responsible parties

23 at the facility, the President or the State

24 may confer, in accordance with require25 ments relating to covenants of sections
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1 122 and 130, a covenant that will pre2 clude some or all administrative or judi3 cial action by both the President and the

4 State to recover response costs or to com5 pel response actions at the facility with

6 respect to matters addressed in the set7 tlement, except that such covenants shall

8 not be binding on the governmental en9 tity that did not confer the covenant to

10 the extent that—

11 ‘‘(i) the covenant purports to ad12 dress natural resource damages; or

13 ‘‘(ii) the President or the State

14 has not been provided notice of, and

15 an opportunity to participate in, the

16 settlement concerning the response

17 action; or

18 ‘‘(iii) the President or the State

19 objects to the settlement within 120

20 days of the date of signature for the

21 record of decision or receipt of notice

22 of the settlement, whichever is later.

23 ‘‘(B) The covenants described by this

24 paragraph may be conferred by either

25 the Administrator or the State with re-
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1 spect to a facility owned or operated by

2 any department, agency, or instrumental3 ity of the United States (including the ex4 ecutive, legislative, and judicial branches

5 of government). The Administrator may

6 confer a covenant in an administrative

7 order, consent decree, or an interagency

8 agreement. The State may confer a cov9 enant in an administrative order or a

10 consent decree.

11 ‘‘(g) TERMS AND CONDITIONS; ENFORCE12 MENT.—

13 ‘‘(1) IN GENERAL.—A contract or coop14 erative agreement under this section

15 shall be subject to such terms and condi16 tions as the Administrator may prescribe.

17 If a State fails to comply with a require18 ment of a contract or cooperative agree19 ment, the Administrator, after 90 days no20 tice to the affected State, may seek in the

21 appropriate United States district court

22 to ensure performance of the response

23 action, or to recover any funds advanced

24 or any costs incurred because of the

25 breach.
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1 ‘‘(2) SPECIFIC TERMS.—A contract or

2 cooperative agreement under this section

3 shall include the following requirements:

4 ‘‘(A) A requirement that the State

5 shall exercise any authority con6 ferred by this section or the contract

7 or cooperative agreement on behalf of

8 the State, and not on behalf of or in

9 the name of the Administrator, the

10 President, or the United States.

11 ‘‘(B) A requirement that the State

12 have and maintain sufficient legal au13 thority under applicable State law to

14 enter into the contract or cooperative

15 agreement.

16 ‘‘(C) A requirement that the Ad17 ministrator retain authority to termi18 nate and recoup funding, and to ter19 minate the contract or cooperative

20 agreement, if the State fails to per21 form the contract or cooperative

22 agreement in a manner consistent

23 with this Act. At least 90 days before

24 terminating any contract or coopera25 tive agreement with a State, the Ad-
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1 ministrator shall provide to the State

2 a written explanation of the reasons

3 for the proposed termination and af4 ford an opportunity to the State to

5 discuss the termination and to pro6 pose actions to correct any defi7 ciencies.

8 ‘‘(D) A requirement imposing a

9 nondiscretionary duty on the Admin10 istrator to perform or compel expedi11 tious performance of response actions

12 under the contract or cooperative

13 agreement if the State fails to comply

14 with the terms of the contract or co15 operative agreement.

16 ‘‘(h) SAVINGS CLAUSE.—Nothing in this sec17 tion shall affect the exercise by a State of any

18 other authorities that may be applicable to fa19 cilities in such State.’’.

20 SEC. 202. STATE COST SHARE.

21 Section 104(c) is amended by adding at

22 the end the following new paragraphs:

23 ‘‘(10) EXISTING CONTRACTS AND COOPERA24 TIVE AGREEMENTS.—The requirements of para25 graphs (3), (6), and (7) of this subsection shall
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1 apply only to contracts and cooperative

2 agreements pursuant to section 104(d) en3 tered into prior to the enactment of the

4 Superfund Reform Act of 1994.

5 ‘‘(11) STATE COST SHARE.—After the date of

6 enactment of the Superfund Reform Act of

7 1994, the Administrator shall not provide any

8 funding under this subsection or section 127,

9 or any response action pursuant to this sec10 tion, except for emergency removal actions,

11 unless the State in which the release or

12 threatened release occurs has entered into a

13 contract or cooperative agreement pursuant

14 to this subsection or section 127 that provides

15 assurances, deemed adequate by the Adminis16 trator, that—

17 ‘‘(A) the State will pay or assure pay18 ment of 15 percent of the cost of such re19 sponse action or funding, including 15

20 percent of orphan share funding and op21 eration and maintenance costs; and

22 ‘‘(B) the State will assure oversight of

23 any operation and maintenance of funded

24 response actions.’’.
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1 SEC. 203. SITING.

2 Section 104(c)(9) is amended to read as

3 follows:

4 ‘‘(9) SITING.—Effective 1 year after the

5 date of enactment of the Superfund Reform

6 Act of 1994, the President shall not provide

7 any remedial actions pursuant to this section

8 or section 127 unless the State in which the

9 release occurs submits a report describing its

10 plans for adequate treatment, storage, and

11 disposal capacity of hazardous wastes gen12 erated within the State, in accordance with

13 guidelines issued by the Administrator.’’.

14 SEC. 204. THE STATE REGISTRY.

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

16 9605(a)(8)) is amended by adding after sub17 paragraph (B) the following new subpara18 graph:

19 ‘‘(C) STATE REGISTRY.—Each State

20 shall maintain and make available to the

21 public a list of facilities in the State that

22 are believed to present a current or po23 tential hazard to human health or the en24 vironment due to the release or threat25 ened release of hazardous substances or

26 pollutants or contaminants. Each State,
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1 in consultation with the Administrator

2 and other appropriate Federal agencies,

3 shall update such listing on an annual

4 basis.’’.

5 SEC. 205. CONFORMING AND MISCELLANEOUS AMEND6 MENTS.

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

8 Section 121(e) is amended—

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

10 (B) by striking out ‘‘PERMITS AND EN11 FORCEMENT.—(1)’’ and inserting ‘‘PER12 MITS.—’’.

13 (2) Section 121(f) is amended by adding at

14 the end the following new paragraphs:

15 ‘‘(4) A State may enforce any Federal or

16 State standard, requirement, criteria, or limi17 tation to which the remedial action is re18 quired to conform under this Act in the

19 United States district court for the district in

20 which the facility is located.

21 ‘‘(5) The President shall modify regula22 tions promulgated pursuant to paragraph (1)

23 to provide to any State within a 50-mile ra24 dius of a remedial action at a Federal facility

25 the same opportunity as is provided pursuant
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1 to paragraph (1)(E) to the State in which the

2 remedial action is to be undertaken.’’.

3 (b) SECTION 126(a).—Section 126(a) is

4 amended by adding after ‘‘section 104(i) (re5 garding health authorities)’’ the following: ‘‘,

6 section 127 (regarding contracts and coopera7 tive agreements), section 128 (regarding vol8 untary response actions), subsection (f) of sec9 tion 121 (relating to cleanup standards), sec10 tion 122(d)(1)(D) (relating to compliance with

11 consent decrees),’’.

12 (c) SECTION 310(a).—Section 310(a) is

13 amended by inserting ‘‘(including any State)’’

14 after ‘‘person’’.

15 (d) TRANSITION.—Subsection (d) of section

16 104 is amended by adding at the end the fol17 lowing new paragraph:

18 ‘‘(5) TERMINATION.—This subsection shall

19 cease to be in effect on the effective date of

20 regulations promulgated to implement sec21 tion 127, as added by the Superfund Reform

22 Act of 1994.’’.
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1 SEC. 206. STUDY OF AUTHORIZATION OF STATES TO CARRY

2 OUT SUPERFUND.

3 The Administrator of the Environmental

4 Protection Agency shall conduct a study of

5 the feasibility of authorizing States to use

6 their own laws to carry out the provisions of

7 the Comprehensive Environmental Response,

8 Compensation, and Liability Act of 1980 in

9 lieu of the Federal program established under

10 such Act.

11 SEC. 207. STATE ROLE AT FEDERAL FACILITIES.

12 Subsection (g) of section 120 is amended

13 to read as follows:

14 ‘‘(g) TRANSFER OF AUTHORITIES.—

15 ‘‘(1) STATE APPLICATION FOR TRANSFER

16 OF AUTHORITIES.—A State may apply to

17 the Administrator to exercise the authori18 ties vested in the Administrator under

19 this section at any or all facilities owned

20 or operated by any department, agency,

21 or instrumentality of the United States

22 (including the executive, legislative, and

23 judicial branches of government), includ24 ing the authority—

25 ‘‘(A) to publish a timetable and

26 deadlines for completion of any reme-
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1 dial investigation and feasibility

2 study;

3 ‘‘(B) to review and approve all

4 documents prepared in connection

5 with any such investigation and

6 study;

7 ‘‘(C) to select and approve rem8 edies; and

9 ‘‘(D) to enter into and enforce,

10 through judicial or administrative

11 means, agreements, orders, and con12 sent decrees entered into pursuant to

13 this Act.

14 ‘‘(2) TRANSFER OF AUTHORITIES.—The

15 Administrator shall enter into a contract

16 or cooperative agreement to transfer the

17 authorities described in paragraph (1) if

18 the Administrator determines the follow19 ing:

20 ‘‘(A) The State has the ability to

21 exercise such authorities in accord22 ance with this Act, including ade23 quate legal authority, financial and

24 personnel resources, organization,

25 and expertise.
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1 ‘‘(B) The State demonstrates expe2 rience in exercising similar authori3 ties.

4 ‘‘(3) EFFECT OF AUTHORIZATION UNDER

5 SOLID WASTE DISPOSAL ACT.—In the review

6 by the Administrator of an application of

7 a State for transfer of authorities under

8 this subsection, if the State is authorized

9 to implement a State hazardous waste

10 program pursuant to section 3006 of the

11 Solid Waste Disposal Act (42 U.S.C. 6926),

12 the following provisions apply:

13 ‘‘(A) With respect to a State that is

14 a signatory to an interagency agree15 ment under subsection (e)(2) that is

16 in effect on the effective date of the

17 Superfund Reform Act of 1994, the

18 Administrator, in making the deter19 minations referred to in paragraph

20 (2), shall accord substantial weight to

21 the State’s hazardous waste program

22 authorization and the Administrator’s

23 findings in approving such authoriza24 tion.
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1 ‘‘(B) With respect to a State whose

2 authorization under such section

3 3006 includes authorization to imple4 ment the corrective action provisions

5 of the Solid Waste Disposal Act, the

6 Administrator shall approve the ap7 plication and provide for the orderly

8 transfer of authorities as expedi9 tiously as possible, but in no case

10 later than 6 months after the date of

11 receipt of the application, unless the

12 parties agree to another deadline.

13 ‘‘(4) EFFECT OF TRANSFER.—Any State

14 to which authorities are transferred

15 under this subsection shall not be

16 deemed to be an agent of the President

17 but shall exercise such authorities in its

18 own name.

19 ‘‘(5) DEADLINES.—Except as provided

20 in paragraph (3)(B), the Administrator

21 shall make a determination on an appli22 cation from a State under this subsection

23 not later than 90 days after the date the

24 Administrator receives the application.
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1 ‘‘(6) WITHDRAWAL OF AUTHORITIES.—(A)

2 The Administrator may withdraw the au3 thorities transferred under this sub4 section in whole or in part if the Admin5 istrator determines—

6 ‘‘(i) that the State, in whole or in

7 part, is exercising such authorities in

8 a manner clearly inconsistent with

9 the requirements of this Act; or

10 ‘‘(ii) in the case of a State that

11 was approved under paragraph

12 (3)(B), that the State is no longer au13 thorized to implement the corrective

14 action provisions of the Solid Waste

15 Disposal Act.

16 ‘‘(B) At least 90 days before withdraw17 ing any such transferred authorities from

18 a State, the Administrator shall provide

19 to the State a written explanation of the

20 reasons for the proposed withdrawal and

21 afford an opportunity to the State to dis22 cuss the withdrawal and to propose ac23 tions to correct any deficiencies.

24 ‘‘(7) LIMITATION.—Except for authori25 ties that are transferred by the Adminis-
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1 trator to a State pursuant to this sub2 section, or that are transferred by the Ad3 ministrator to an officer or employee of

4 the Environmental Protection Agency, no

5 authority vested in the Administrator

6 under this section may be transferred, by

7 executive order of the President or other8 wise, to any other officer or employee of

9 the United States or to any other person.

10 Except as necessary to implement the

11 transfer of the Administrator’s authori12 ties to a State pursuant to this sub13 section, nothing in this subsection shall

14 be construed as altering, modifying, or

15 impairing in any manner any agreement,

16 permit, administrative or judicial order,

17 decree, or interagency agreement exist18 ing on the effective date of the Superfund

19 Reform Act of 1994. Nothing in this sub20 section shall affect the exercise by a

21 State of any other authorities that may

22 be applicable to facilities in such State.’’.
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1 TITLE III—VOLUNTARY

2 RESPONSE

3 SEC. 301. VOLUNTARY RESPONSE PROGRAM.

4 Title I is amended by adding the following

5 new section after section 127:

6 ‘‘SEC. 128. VOLUNTARY RESPONSE PROGRAM.

7 ‘‘(a) PURPOSES AND OBJECTIVES.—The pur8 poses and objectives of this section are to—

9 ‘‘(1) significantly increase the pace of

10 response activities at contaminated sites

11 by promoting and encouraging the cre12 ation, development, and expansion of

13 State voluntary response programs; and

14 ‘‘(2) benefit the public health, welfare,

15 and the environment by returning con16 taminated sites to economically produc17 tive or other beneficial uses.

18 ‘‘(b) ESTABLISHMENT OF PROGRAM.—The Ad19 ministrator shall establish a program to pro20 vide technical, financial, and other assistance,

21 including grants, to States to establish and ex22 pand voluntary response programs.

23 ‘‘(c) EPA ASSISTANCE TO STATES FOR STATE

24 VOLUNTARY RESPONSE PROGRAMS.—The Admin25 istrator shall assist States in the establish-
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1 ment and administration of State voluntary

2 response programs that—

3 ‘‘(1) provide opportunities for tech4 nical assistance for voluntary response

5 actions;

6 ‘‘(2) provide adequate opportunities

7 for public participation in selecting re8 sponse actions, including prior notice

9 and opportunity for comment in appro10 priate circumstances;

11 ‘‘(3) provide streamlined procedures

12 to ensure expeditious voluntary response

13 actions;

14 ‘‘(4) provide adequate oversight and

15 enforcement authorities to ensure that

16 voluntary response actions are protective

17 of human health and the environment,

18 are conducted in accordance with an ap19 propriate response action plan and en20 sure completion of response actions if the

21 person conducting the response action

22 fails or refuses to complete the necessary

23 response activities, including operation

24 and maintenance or long-term monitor25 ing activities;
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1 ‘‘(5) provide mechanisms for the ap2 proval of a response action plan; and

3 ‘‘(6) provide for a certification or

4 similar documentation from the State to

5 the person conducting the response ac6 tion indicating that the response is com7 plete.

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

9 any time after the enactment of this Act, a

10 State may submit, for review by the Adminis11 trator, documents the State deems appro12 priate to describe a State voluntary response

13 program, together with a certification that

14 the program is consistent with the elements

15 set forth in subsection (c).

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

17 ‘‘(1) APPROVAL OR DISAPPROVAL.—A

18 State voluntary response program sub19 mitted under subsection (d) shall be a

20 qualified program under this Act begin21 ning on the date 120 days after the sub22 mittal of the certification under sub23 section (d) unless the Administrator de24 termines before that date that the State’s

25 submittal is not consistent with the ele-
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1 ments set forth in subsection (c). The Ad2 ministrator shall seek public comment on

3 the submittal of a State voluntary re4 sponse program under this section and

5 shall publish in the Federal Register the

6 reasons for the approval or disapproval

7 of any such program.

8 ‘‘(2) WITHDRAWAL OF APPROVAL.—

9 Whenever the Administrator determines

10 after public hearing that a State is not

11 administering and enforcing a qualified

12 program in accordance with subsection

13 (c), the Administrator shall notify the

14 State in writing of such determination. If

15 appropriate corrective action is not

16 taken by the State within 120 days after

17 receipt of the notice, the Administrator

18 shall withdraw approval of the program

19 and publish a notice of such withdrawal

20 in the Federal Register, after which the

21 State program shall cease to be a quali22 fied program under this section. If the

23 State subsequently undertakes corrective

24 measures, the Administrator shall rein25 state the program as a qualified program
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1 under this section. The Administrator

2 shall not withdraw approval of any such

3 program unless the Administrator pro4 vides to the State in writing and pub5 lishes in the Federal Register the reasons

6 for such withdrawal.

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

8 subject to a response action plan approved

9 under a qualified program under this section

10 shall be proposed for listing on the National

11 Priorities List so long as substantial and con12 tinual response activities are being under13 taken pursuant to such plan to complete the

14 response action in a timely manner as set

15 forth in the response action plan. Nothing in

16 this section shall be construed to limit the Ad17 ministrator’s ability to list on the National

18 Priorities List facilities that have been pro19 posed for listing, or to compel response action

20 under section 106 of the Act.

21 ‘‘(g) CONDUCT OF RESPONSE.—The Adminis22 trator shall, after consultation with the State,

23 and notice and opportunity for public com24 ment, promulgate regulations describing cir25 cumstances in which any State having a
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1 qualified program, and also authorized to

2 issue permits under Federal environmental

3 statutes, may waive such permit require4 ments with respect to activities conducted

5 pursuant to an approved voluntary response

6 plan if (1) such State has the authority under

7 its own statutes or regulations to grant such

8 waivers, (2) the State waiver authority is used

9 in no less stringent a manner than allowed

10 under Federal permit waiver authority, and

11 (3) the response action plan requires compli12 ance with the relevant substantive require13 ments of the statute concerned.

14 ‘‘(h) EFFECT OF RESPONSE.—Performance

15 of a voluntary response action pursuant to

16 this section shall not constitute an admission

17 of liability under any Federal, State, or local

18 law or regulation or in any citizens suit or

19 other private action.

20 ‘‘(i) COMPLIANCE WITH NCP.—Response ac21 tions conducted pursuant to a qualified pro22 gram shall be presumed to be consistent with

23 the National Contingency Plan for the pur24 poses of private cost recovery claims under

25 this Act.
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1 ‘‘(j) ANNUAL REPORTING.—

2 ‘‘(1) REPORT BY STATE.—States with

3 qualified programs under this section

4 shall report to the Administrator at the

5 end of each calendar year on the status

6 of their programs. Each such report shall

7 include a statement regarding whether

8 the program continues to be consistent

9 with the elements set forth in subsection

10 (c).

11 ‘‘(2) REPORT BY ADMINISTRATOR.—The

12 Administrator shall report, not later than

13 one year after the enactment of this sec14 tion, and annually thereafter, to the Con15 gress on the status of State voluntary re16 sponse program. The report shall include

17 an analysis of whether qualified State

18 voluntary response action programs con19 tinue to be consistent with the elements

20 set forth in subsection (c).

21 ‘‘(k) STATUTORY CONSTRUCTION.—(1) This

22 section is not intended to impose any require23 ment on a State voluntary response program

24 existing on or after the date of the enactment

25 of the Superfund Reform Act of 1994.
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1 ‘‘(2) This section is not intended to affect

2 the liability of any person or to affect other

3 response authorities afforded under any law

4 or regulation relating to environmental con5 tamination, including this Act, the Solid

6 Waste Disposal Act, the Clean Water Act, the

7 Toxic Substances Control Act, and title XIV of

8 the Public Health Service Act (the Safe Drink9 ing Water Act), except that the successful

10 completion of a response action at a facility

11 pursuant to a qualified program under this

12 section shall be considered for purposes of

13 section 107(a)(6)(C) as evidence that a person

14 acquiring ownership of the facility is a bona

15 fide prospective purchaser of the facility

16 within the meaning of section 101(39).

17 ‘‘(3) Nothing in this section shall be con18 strued to require any person to participate in

19 a qualified voluntary response program

20 under this section or in any other voluntary

21 response program in order to qualify as a

22 bona fide purchaser for purposes of section

23 107(a)(6)(C).’’.
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1 TITLE IV—LIABILITY AND

2 ALLOCATION

3 SEC. 401. INFORMATION GATHERING AND ACCESS.

4 (a) ADDITIONAL INFORMATION.—Section

5 104(e)(2) (42 U.S.C. 9604(e)(2)) is amended—

6 (1) by striking ‘‘cleanup’’ in subpara7 graph (C) and inserting ‘‘response ac8 tion’’; and

9 (2) by inserting after subparagraph

10 (C) the following:

11 ‘‘(D) The identity of any persons

12 engaged in, responsible for, control13 ling, or having the ability to control

14 activities or operations at a vessel or

15 facility giving rise to liability under

16 this Act.

17 ‘‘(E) Information relating to the

18 potential liability or responsibility of

19 any person to perform or pay for a re20 sponse action.

21 ‘‘(F) Information that is otherwise

22 relevant to enforce the provisions of

23 this Act.

24 ‘‘(G) For a person conducting a re25 sponse action, an accounting of direct
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1 and indirect costs the person has in2 curred in conducting such response

3 action.’’.

4 (b) CERTIFICATIONS.—Section 104(e) (42

5 U.S.C. 9604(e)) is amended—

6 (1) by redesignating paragraphs (3),

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

8 (6), (7), and (8), respectively; and

9 (2) by inserting after paragraph (2)

10 the following:

11 ‘‘(3) CERTIFICATION.—The President

12 may require respondents to requests

13 made pursuant to this subsection to cer14 tify that—

15 ‘‘(A) the responses are true, accu16 rate, and complete to the best of the

17 respondent’s knowledge;

18 ‘‘(B) the responses are based on a

19 diligent, good faith search of records

20 in the possession or control of the

21 person to whom the request was di22 rected;

23 ‘‘(C) the responses are based on a

24 reasonable inquiry of the current and

25 former officers, directors, employees,
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1 and agents of the person to whom the

2 request was directed;

3 ‘‘(D) the responses accurately and

4 completely reflect information ob5 tained in the course of conducting

6 such search and inquiry;

7 ‘‘(E) the respondent understands

8 that there is a continuing obligation

9 to supplement the response if any ad10 ditional, new, or different informa11 tion relevant to the matters ad12 dressed in the request or the re13 sponse thereto becomes known or

14 available to the respondent; and

15 ‘‘(F) the respondent understands

16 that there are significant penalties

17 for submitting false information, in18 cluding the possibility of fine and im19 prisonment.’’.

20 (c) ADMINISTRATIVE SUBPOENAS.—Section

21 104(e) (42 U.S.C. 9604(e)) is further amended

22 by inserting after paragraph (8) (as redesig23 nated by subsection (b)) the following new

24 paragraph:
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1 ‘‘(9) ADMINISTRATIVE SUBPOENAS.—

2 When it would assist in the collection of

3 information necessary or appropriate for

4 the purposes of implementing this Act,

5 the Administrator may by subpoena re6 quire the attendance and testimony of

7 witnesses and the production of reports,

8 papers, documents, answers to questions,

9 and other information listed in para10 graph (2) that the Administrator consid11 ers necessary. Witnesses shall be paid the

12 same fees and mileage that are paid wit13 nesses in the courts of the United States.

14 In the event of contumacy or failure or

15 refusal of any person to obey any such

16 subpoena, any district court of the Unit17 ed States in which venue is proper shall

18 have jurisdiction to order any such per19 son to comply with such subpoena. Any

20 failure to obey such an order of the court

21 is punishable by the court as a contempt

22 thereof.’’.

23 (d) CONFIDENTIALITY OF INFORMATION.—

24 Subparagraph (A) of section 104(e)(8) (as re-
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1 designated by subsection (b)), is amended to

2 read as follows:

3 ‘‘(A) Any records, reports, documents,

4 or information obtained from any person

5 under this section (including records, re6 ports, documents, or information ob7 tained by representatives of the Presi8 dent and records, reports, documents, or

9 information obtained pursuant to a con10 tract, grant, or other agreement to per11 form work pursuant to this section) shall

12 be available to the public, except as fol13 lows:

14 ‘‘(i) Upon a showing satisfactory

15 to the President (or the State, as the

16 case may be) by any person that

17 records, reports, documents, or infor18 mation, or any particular part thereof

19 (other than health or safety effects

20 data), to which the President (or the

21 State, as the case may be) or any offi22 cer, employee, or representative has

23 access under this section if made

24 public would divulge information en25 titled to protection under section
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1 1905 of title 18, United States Code,

2 such information or particular por3 tion thereof shall be considered con4 fidential in accordance with the pur5 poses of that section, except that such

6 record, report, document, or informa7 tion may be disclosed to other offi8 cers, employees, or authorized rep9 resentatives of the United States car10 rying out this Act, or when relevant

11 in any proceeding under this Act, or,

12 if such records, reports, documents,

13 or information are obtained or sub14 mitted to the United States (or the

15 State, as the case may be) pursuant to

16 a contract, grant, or other agreement

17 to perform work pursuant to this sec18 tion, to persons from whom the Presi19 dent seeks to recover costs pursuant

20 to this Act.

21 ‘‘(ii) This section does not require

22 that information which is exempt

23 from disclosure pursuant to section

24 552(a) of title 5, United States Code,

25 by reason of subsection (b)(5), sub-
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1 section (b)(6), or subsection (b)(7) of

2 such section, be available to the pub3 lic, nor shall the disclosure of any

4 such information pursuant to this

5 section authorize disclosure to other

6 parties or be deemed to waive any

7 confidentiality privilege available to

8 the President under any Federal or

9 State law.’’.

10 (e) CONFIDENTIALITY REQUIREMENTS FOR

11 CONTRACTORS.—Paragraph (8) of section

12 104(e) (as redesignated by subsection (b)) is

13 amended by adding at the end the following

14 new subparagraph:

15 ‘‘(G)(i) No person described in clause

16 (ii) may disclose such record, report, doc17 ument, or other information without the

18 permission of the President.

19 ‘‘(ii) A person referred to in clause (i)

20 is any person—

21 ‘‘(I) who is not an employee of the

22 United States Government; and

23 ‘‘(II) who, by virtue of the per24 son’s duties under a contract or coop25 erative agreement with the United
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1 States under this section to perform

2 work for the United States Govern3 ment or implement the requirements

4 of this Act, has received information

5 obtained under this section (or any

6 record, report, or document contain7 ing such information) which, if re8 quested from the United States Gov9 ernment pursuant to section 552 of

10 title 5, United States Code, would be

11 exempt from disclosure by reason of

12 subsection (b) of such section.’’.

13 (f) AVAILABILITY OF INFORMATION TO CON14 GRESS.—Subsection 104(e) is further amended

15 by adding after paragraph (9) the following

16 new paragraph:

17 ‘‘(10) AVAILABILITY OF INFORMATION TO

18 CONGRESS.—Nothing in this subsection

19 shall be construed to authorize any per20 son, including the allocator, to withhold

21 any documents or information from Con22 gress, or any duly authorized Committee

23 thereof, or limit in any manner the right

24 of Congress, or any duly authorized Com-
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1 mittee thereof, to obtain such documents

2 or information.’’.

3 SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.

4 (a) ADDITIONAL AUTHORITY TO ISSUE OR5 DERS.—Section 106(a) (42 U.S.C. 9606(a)) is

6 amended by adding at the end the following:

7 ‘‘The President may amend such orders and

8 issue additional orders relating to the facility,

9 as appropriate, without a subsequent finding

10 of an imminent and substantial

11 endangerment, to complete all response ac12 tions necessary to respond to an actual or

13 threatened release or to require additional re14 sponse actions that are necessary or appro15 priate to respond to the actual or threatened

16 release that was the subject of the original

17 order.’’.

18 (b) SUFFICIENT CAUSE.—Section 106(b)(1)

19 (42 U.S.C. 9606(b)(1)) is amended—

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

21 (2) by striking ‘‘to enforce such

22 order’’;

23 (3) by inserting before the period ‘‘, or

24 be required to comply with such order, or

25 both, even if another person has com-
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1 plied, or is complying, with the terms of

2 the same order or another order pertain3 ing to the same facility and release or

4 threatened release’’; and

5 (4) by inserting at the end the follow6 ing:

7 ‘‘(B) For purposes of this subsection, a

8 ‘sufficient cause’ requires—

9 ‘‘(i) an objectively reasonable belief

10 by the person to whom the order is is11 sued that the person is not liable for any

12 response costs under section 107; or

13 ‘‘(ii) that the action to be performed

14 pursuant to the order is inconsistent with

15 the national contingency plan.

16 ‘‘(C) The existence or results of an alloca17 tion process pursuant to section 130 shall not

18 affect or constitute a basis for a determina19 tion of ‘sufficient cause’ under this paragraph

20 or under section 107(c)(3).’’.

21 (c) REIMBURSEMENT.—Subsection (b) of

22 section 106 (42 U.S.C. 9606(b)) is further

23 amended in the first sentence of paragraph

24 (2)(A) by striking ‘‘completion of’’ and insert-
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1 ing ‘‘the President determines that such per2 son has completed’’.

3 SEC. 403. LIMITATIONS TO LIABILITY FOR RESPONSE

4 COSTS.

5 (a) LIMITATIONS ON LIABILITY.—Section

6 107(a) (42 U.S.C. 9607(a)) is amended as fol7 lows:

8 (1) In paragraph (1), by striking ‘‘and’’

9 and inserting ‘‘or’’.

10 (2) In paragraph (3), by striking ‘‘per11 son,’’ and inserting ‘‘person or’’.

12 (3) In paragraph (4)(A), by inserting ‘‘,

13 including the costs of overseeing re14 sponse actions conducted by potentially

15 responsible parties,’’ before ‘‘incurred by

16 the United States’’.

17 (4) In paragraph (4)(B)—

18 (A) by striking ‘‘other’’ both places

19 it appears; and

20 (B) by inserting ‘‘, other than the

21 United States, a State, or an Indian

22 tribe,’’ before the phrase ‘‘consistent

23 with the national contingency plan’’.

24 (5) In paragraph (4), by striking ‘‘by

25 such person,’’ and all that follows
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1 through ‘‘shall be liable for—’’ and insert2 ing in lieu thereof the following: ‘‘by such

3 person—

4 from which there is a release, or a threatened

5 release, that causes the incurrence of re6 sponse costs, of a hazardous substance, shall

7 be liable for—’’.

8 (6) By designating the text beginning

9 with ‘‘The amounts recoverable’’ and end10 ing with ‘‘this subsection commences.’’ as

11 paragraph (5) and aligning the margin of

12 such text with paragraph (4).

13 (7) By adding the following new para14 graphs after paragraph (5):

15 ‘‘(6) Notwithstanding paragraphs (1)

16 through (4) of this subsection, a person

17 who does not impede the performance of

18 response actions or natural resource res19 toration shall not be liable:

20 ‘‘(A)(i) To the extent liability is

21 based solely on paragraph (3) or (4) of

22 this subsection, and the person ar23 ranged for disposal, treatment, or

24 transport for disposal or treatment,

25 or accepted for transport for disposal
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1 or treatment of only municipal solid

2 waste or sewage sludge owned or pos3 sessed by such person, and the per4 son is—

5 ‘‘(I) the owner, operator, or

6 lessee of residential property;

7 ‘‘(II) a small business; or

8 ‘‘(III) a small non-profit orga9 nization.

10 ‘‘(ii) This subparagraph shall have

11 no effect on the liability of any other

12 person.

13 ‘‘(B) To the extent liability is

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

15 this subsection, and the person can

16 demonstrate that it arranged for dis17 posal or treatment, or transport for

18 disposal or treatment or accepted for

19 transport for disposal or treatment,

20 55 gallons or less of liquid materials

21 containing hazardous substances or

22 pollutants or contaminants or less

23 than 100 pounds of solid materials

24 containing hazardous substances or

25 pollutants or contaminants, or such
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1 greater or lesser amount as the Ad2 ministrator may determine by regula3 tion, except in a case in which—

4 ‘‘(i) the Administrator has de5 termined that such material con6 tributed or could contribute sig7 nificantly to the costs of response

8 at the facility, or

9 ‘‘(ii) the person has failed to

10 respond fully and completely to

11 information requests or adminis12 trative subpoenas by the United

13 States.

14 ‘‘(C) To the extent liability is

15 based solely on paragraph (1) of this

16 subsection for a release or threat of

17 release from a facility, and the person

18 is a bona fide prospective purchaser

19 of the facility. Not later than 18

20 months after the date of the enact21 ment of the Superfund Reform Act of

22 1994, the Administrator shall issue

23 guidelines containing criteria for a

24 person to qualify as a bona fide pro25 spective purchaser. Such guidelines
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1 shall include provision for a person

2 to make a self-evaluation on whether

3 he or she qualifies as a bona fide pro4 spective purchaser under the criteria

5 established in the guidelines. Such

6 provision shall be made readily avail7 able to the public.

8 ‘‘(D) To the extent liability is

9 based solely on the person’s status as

10 owner under paragraph (1) for a re11 lease or threat of release from a facil12 ity, and the person acquired the facil13 ity by inheritance or bequest if the

14 person—

15 ‘‘(i) acquired the real property

16 on which the facility concerned is

17 located after disposal or place18 ment of the hazardous substance

19 took place;

20 ‘‘(ii) did not cause or contrib21 ute to the release or threat of re22 lease; and

23 ‘‘(iii) exercised due care with

24 respect to the hazardous sub25 stance concerned, including pre-
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1 cautions against foreseeable acts

2 of third parties, taking into con3 sideration the characteristics of

4 such hazardous substance, in

5 light of all relevant facts and cir6 cumstances.

7 ‘‘(E) To the extent the liability of

8 a Federal or State governmental en9 tity or municipality is based solely on

10 its—

11 ‘‘(i) ownership of a road,

12 street, or other right of way or

13 public transportation route (other

14 than railroad rights of way and

15 railroad property) over which

16 hazardous substances are trans17 ported; or

18 ‘‘(ii) granting of a license or

19 permit to conduct business.

20 ‘‘(F) To the extent the liability of

21 a department, agency, or instrumen22 tality of the United States is based on

23 actions of such department, agency,

24 or instrumentality taken in response

25 to a natural disaster pursuant to the
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1 Act of August 18, 1941 (33 U.S.C. 701n)

2 or The Robert T. Stafford Disaster

3 Relief and Emergency Act (42 U.S.C.

4 5121 and following).

5 ‘‘(7) Notwithstanding paragraphs (1)

6 through (4), a person shall not be liable

7 for more than 10 percent of total re8 sponse costs at a facility, in aggregate, to

9 the extent the person’s liability is based

10 solely on paragraph (3) or (4) of this sub11 section, and the arrangement for dis12 posal, treatment, or transport for dis13 posal or treatment, or the acceptance for

14 transport for disposal or treatment, in15 volved only municipal solid waste or sew16 age sludge. In any case in which more

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

19 percent limitation on liability shall apply

20 to the aggregate liability of all such per21 sons. Such limitation on liability shall

22 apply only if either the acts or omissions

23 giving rise to liability occurred before

24 the date occurring 36 months after enact25 ment of this paragraph, or the person as-
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1 serting the limitation institutes or par2 ticipates in a qualified household hazard3 ous waste collection program within the

4 meaning of section 101(43).

5 ‘‘(8)(A) Notwithstanding paragraphs

6 (1) through (4) of this subsection, the li7 ability of a person who does not impede

8 the performance of response actions or

9 natural resource restoration with respect

10 to a release or threatened release from a

11 vessel or facility shall be limited to the

12 lesser of the fair market value of the ves13 sel or facility or the actual proceeds of

14 the sale of the vessel or facility received

15 by the person, to the extent such liability

16 is based solely on the person’s status as

17 owner under paragraph (1) of the vessel

18 or facility if the person—

19 ‘‘(i) holding title, either outright

20 or in trust, to the vessel or facility is

21 an organization described in section

22 501(c)(3) of the Internal Revenue

23 Code of 1986 and exempt from tax

24 under section 501(a) of such Code and

25 holds such title as a result of a chari-
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1 table donation that qualifies under

2 section 170 of such Code; and

3 ‘‘(ii) exercised due care with re4 spect to the hazardous substance con5 cerned, including precautions against

6 foreseeable acts of third parties, tak7 ing into consideration the character8 istics of such hazardous substance, in

9 light of all relevant facts and cir10 cumstances.

11 ‘‘(B) The limitation on liability pro12 vided for by subparagraph (A) shall not

13 apply in any case in which the Adminis14 trator determines that the person—

15 ‘‘(i) acquired the real property on

16 which the facility is located, or ac17 quired the vessel, on or before dis18 posal or placement of the hazardous

19 substance took place; or

20 ‘‘(ii) caused or contributed to the

21 release or threat of release.’’.

22 (b) PROSPECTIVE PURCHASER AND WINDFALL

23 LIEN.—Section 107 is amended by inserting

24 after subsection (m) the following new sub25 section:
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1 ‘‘(n) PROSPECTIVE PURCHASER AND WIND2 FALL LIEN.—(1) In any case in which there are

3 unrecovered response costs at a facility for

4 which an owner of the facility is not liable by

5 reason of subsection (a)(6)(C), and the condi6 tions described in paragraph (2) are met, the

7 United States shall have a lien upon such fa8 cility for such unrecovered costs. Such lien—

9 ‘‘(A) shall not exceed the increase in

10 fair market value of the property attrib11 utable to the response action at the time

12 of a subsequent sale or other disposition

13 of property;

14 ‘‘(B) shall arise at the time costs are

15 first incurred by the United States with

16 respect to a response action at the facil17 ity;

18 ‘‘(C) shall be subject to the require19 ments for notice and validity established

20 in paragraph (3) of subsection (l); and

21 ‘‘(D) shall continue until the earlier of

22 satisfaction of the lien or recovery of all

23 response costs incurred at the facility.

24 ‘‘(2) The conditions referred to in para25 graph (1) are the following:
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1 ‘‘(A) A response action for which

2 there are unrecovered costs is carried

3 out at the facility.

4 ‘‘(B) Such response action increases

5 the fair market value of the facility above

6 the fair market value of the facility that

7 existed within six months before the re8 sponse action was taken.

9 ‘‘(C) A sale or other disposition of all

10 or a portion of the facility has occurred.’’.

11 ‘‘(3) No lien under this section shall arise

12 (A) with respect to property for which the

13 property owner preceding the first bona fide

14 prospective purchaser is not a liable party or

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

16 where an audit or inquiry required under sec17 tion 101(39)(B) by an environmental profes18 sional certified under section 612 of the

19 Superfund Reform Act of 1994 gives the bona

20 fide prospective purchaser no knowledge or

21 reason to know of the release of hazardous

22 substances.’’.

23 SEC. 404. LIABILITY.

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

25 9607(a)) (as amended by section 403) is further
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1 amended by adding the following new para2 graph at the end thereof:

3 ‘‘(9) The Administrator shall calculate

4 the Environmental Protection Agency re5 sponse action oversight costs for which

6 potentially responsible parties are liable

7 under this section (pursuant to para8 graph (4)(A)) on a national basis as a per9 centage of total response costs incurred

10 by potentially responsible parties (in this

11 paragraph referred to as the ‘national

12 oversight rate’). The calculation shall be

13 based on data comparing oversight ex14 penditures of the Environmental Protec15 tion Agency to estimated or actual re16 sponse costs incurred by potentially re17 sponsible parties. The Administrator

18 shall periodically review and update the

19 national oversight rate. In no case shall

20 the rate exceed 10 percent of total re21 sponse costs incurred by potentially re22 sponsible parties. The national oversight

23 rate shall be applied to all settlements

24 under section 130.’’.
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1 (b) AMOUNT OF LIABILITY.—Section

2 107(c)(3) (42 U.S.C. 9607(c)(3)) is amended in

3 the first sentence—

4 (1) by inserting ‘‘, in addition to liabil5 ity for any response costs incurred by the

6 United States as a result of such failure

7 to take proper action,’’ after ‘‘person’’ the

8 second time it appears; and

9 (2) by striking ‘‘at least equal to,’’ and

10 all that follows through the end of the

11 sentence and inserting ‘‘up to three times

12 the amount of such response costs.’’.

13 (c) CLARIFICATION OF COMMON CARRIER LI14 ABILITY.—Section 107(b)(3) is amended by

15 striking out ‘‘from a published tariff and ac16 ceptance for’’ and inserting ‘‘exclusively from

17 a contract for’’.

18 (d) SMALL BUSINESS CONSTRUCTION CON19 TRACTORS.—Section 107 is amended by adding

20 at the end the following:

21 ‘‘(o) SMALL BUSINESS CONSTRUCTION CON22 TRACTORS.—There shall be no liability under

23 subsection (a) of this section based solely on

24 a person’s construction activities at a facility
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1 if such person can demonstrate by a prepon2 derance of evidence that—

3 ‘‘(1) such construction activities were

4 specifically directed by and carried out

5 in accordance with a contract with an

6 owner or operator of the facility; and

7 ‘‘(2) the person is a small business

8 construction contractor as defined by

9 section 101(49).’’.

10 SEC. 405. CIVIL PROCEEDINGS.

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

12 9613(a)) is amended—

13 (1) by striking ‘‘upon application by

14 any interested person’’ and inserting ‘‘by

15 any interested person through the filing

16 of a petition for review’’; and

17 (2) by striking ‘‘application shall be

18 made’’, and inserting ‘‘petition shall be

19 filed’’.

20 (b) PERIOD IN WHICH ACTION MAY BE

21 BROUGHT.— Section 113(g) (42 U.S.C. 9613(g))

22 is amended by striking paragraphs (2) and (3)

23 and inserting in lieu thereof the following:

24 ‘‘(2) ACTIONS FOR RECOVERY OF

25 COSTS.—(A) Except as provided in sub-
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1 paragraph (C), an initial action for recov2 ery of costs referred to in section 107

3 must be commenced—

4 ‘‘(i) for a removal action, within 3

5 years after completion of all removal

6 action taken with respect to the facil7 ity, including off-site disposal of any

8 removed materials, except that if

9 physical on-site construction of the

10 remedial action is initiated within 3

11 years after the completion of all re12 moval action taken with respect to

13 the facility, costs incurred for re14 moval action may be recovered in a

15 cost recovery action brought under

16 clause (ii); and

17 ‘‘(ii) for a remedial action, within

18 6 years after initiation of physical on19 site construction of the remedial ac20 tion.

21 ‘‘(B) In any such action described in

22 this paragraph, the court shall enter a

23 declaratory judgment on liability for re24 sponse costs or damages that will be

25 binding in such action or in any subse-
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1 quent action or actions to recover further

2 response costs or damages. A subsequent

3 action or actions under section 107 for

4 further response costs at the vessel or fa5 cility may be maintained at any time dur6 ing the response action, but must be com7 menced no later than 3 years after the

8 date of completion of all response action.

9 Except as otherwise provided in this

10 paragraph, an action may be commenced

11 under section 107 for recovery of costs at

12 any time after such costs have been in13 curred.

14 ‘‘(C) An action by any potentially re15 sponsible party against another poten16 tially responsible party for recovery of

17 any response costs or damages must be

18 commenced within the later of—

19 ‘‘(i) the time limitations set forth

20 in subparagraph (A); or

21 ‘‘(ii) where recovery is sought for

22 costs or damages paid pursuant to a

23 judgment or settlement, 3 years

24 after—
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1 ‘‘(I) the date of judgment in

2 any action under this Act for re3 covery of such costs or damages,

4 or

5 ‘‘(II) the date of any adminis6 trative order or judicial settle7 ment for recovery of the costs or

8 damages paid or incurred pursu9 ant to such a settlement.

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

11 STATES.—Claims by the United States

12 under section 106 and claims by the Unit13 ed States or a State under section 107(a)

14 shall not be deemed compulsory counter15 claims in an action against the United

16 States or a State seeking response costs,

17 contribution, damages, or any other

18 claim by any person under this Act.’’.

19 (c) JUDICIAL REVIEW.—Section 113(j)(1) (42

20 U.S.C. 9613(j)(1)) is amended by striking ‘‘or

21 ordered by the President’’ and inserting ‘‘or

22 selected by the President pursuant to this Act,

23 or ordered or sought by the President,’’.
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1 SEC. 406. LIMITATIONS ON CONTRIBUTION ACTIONS.

2 Section 113(f) (42 U.S.C. 9613(f)) is amend3 ed as follows:

4 (1) Paragraph (1) is amended—

5 (A) by striking ‘‘Any person’’ in

6 the first sentence and inserting ‘‘Ex7 cept as provided in paragraph (4),

8 any person who is liable or poten9 tially liable under section 107(a)’’;

10 (B) by striking ‘‘, during or follow11 ing any civil action under section 106

12 or under section 107(a).’’ and insert13 ing ‘‘in a claim asserted under section

14 107(a).’’;

15 (C) in the second sentence, by

16 striking ‘‘this section’’ and inserting

17 ‘‘section 107(a), this section,’’; and

18 (D) by striking the sentence be19 ginning with ‘‘Nothing in this sub20 section’’.

21 (2) Paragraph (2) is amended to read

22 as follows:

23 ‘‘(2) SETTLEMENTS.—A person who has

24 resolved its liability to the United States

25 in an administrative or judicially ap26 proved settlement shall not be liable for
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1 contribution or any other claims by any

2 person other than a State acting under

3 section 107(a)(4)(A) (and not as a poten4 tially responsible party) regarding re5 sponse actions, response costs, or dam6 ages addressed in the settlement. A per7 son who has resolved its liability to a

8 State or an Indian tribe in an administra9 tive or judicially approved settlement

10 shall not be liable for contribution or any

11 other claims by persons other than the

12 United States Government acting under

13 section 107(a)(4)(A) (and not as a poten14 tially responsible party) regarding re15 sponse costs or damages addressed in the

16 settlement for which the State or Indian

17 tribe has a claim under this title. Such

18 settlement does not discharge any other

19 potentially responsible persons unless its

20 terms so provide, but it reduces the po21 tential liability of such other persons by

22 the amount of the settlement. The protec23 tion afforded by this subsection shall in24 clude protection against claims, under

25 Federal or State law, that may be as-
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1 serted against the settling party for re2 covery of response costs or damages in3 curred or paid by another person, if such

4 costs or damages are addressed in the

5 settlement, but shall not include protec6 tion against claims based on contractual

7 indemnification or other express contrac8 tual agreements to pay such costs or

9 damages.’’.

10 (3) Such section is amended by add11 ing at the end the following new para12 graph:

13 ‘‘(4) LIMITATIONS ON CONTRIBUTION AC14 TIONS.—(A) There shall be no right of con15 tribution under this subsection in any of

16 the following circumstances:

17 ‘‘(i) The person asserting the right

18 of contribution has waived the right

19 in a settlement pursuant to this Act.

20 ‘‘(ii) The person from whom con21 tribution is sought is not liable under

22 this Act.

23 ‘‘(iii) The person from whom con24 tribution is sought has entered into a

25 settlement with the United States
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1 pursuant to section 122(g), with re2 spect to matters addressed in that

3 settlement.

4 ‘‘(B) Any person who commences an

5 action for contribution shall be liable to

6 the person against whom the claim of

7 contribution is brought for all reasonable

8 costs of defending against the claim, in9 cluding all reasonable attorneys’ and ex10 pert witness fees, if—

11 ‘‘(i) the action is barred by sub12 paragraph (A);

13 ‘‘(ii) the action is brought against

14 a person who is not liable under this

15 Act;

16 ‘‘(iii) the action is brought against

17 a person who is protected from such

18 suits pursuant to section 113(f)(2) by

19 reason of a settlement with the Unit20 ed States; or

21 ‘‘(iv) the action is brought during

22 the moratorium pursuant to section

23 130.’’.
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1 SEC. 407. SCOPE OF RULEMAKING AUTHORITY.

2 (a) IN GENERAL.—Section 115 (42 U.S.C.

3 9615) is amended to read as follows:

4 ‘‘SEC. 115. PRESIDENTIAL DELEGATION AND ASSIGNMENT

5 OF DUTIES OR POWERS AND PROMULGATION

6 OF REGULATIONS.

7 ‘‘The President (or the Administrator

8 where applicable) is authorized to promul9 gate such regulations as the President (or the

10 Administrator where applicable) deems nec11 essary to carry out the provisions of this Act,

12 and to delegate and assign any duties or pow13 ers imposed upon or assigned to him by this

14 Act, including the authority to promulgate

15 regulations. The preceding sentence includes

16 authority to clarify or interpret all terms and

17 to implement any provision of this Act.’’.

18 (b) LENDER LIABILITY RULE.—(1) Effective

19 on the date of enactment of this section, the

20 final rule issued by the Administrator of the

21 Environmental Protection Agency on April 29,

22 1992 (57 Fed. Reg. 18344), shall be deemed to

23 have been validly issued pursuant to the au24 thority of the Comprehensive Environmental

25 Response, Compensation, and Liability Act of
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1 1980, and to have been effective according to

2 the final rule’s terms. No additional adminis3 trative or judicial proceedings shall be nec4 essary with respect to such final rule.

5 (2) Notwithstanding section 113(a) of the

6 Comprehensive Environmental Response,

7 Compensation and Liability Act of 1980, no

8 court shall have jurisdiction to review the

9 final rule issued by the Administrator of the

10 Environmental Protection Agency on April 29,

11 1992 (57 Fed. Reg. 18344).

12 (3) Nothing in this subsection shall be con13 strued to limit the authority of the President

14 or his delegate to amend the final rule issued

15 by the Administrator of the Environmental

16 Protection Agency on April 29, 1992 (57 Fed.

17 Reg. 18344), in accordance with applicable

18 provisions of law.

19 SEC. 408. RESPONSE ACTION CONTRACTORS.

20 (a) EXTENSION OF NEGLIGENCE STANDARD.—

21 Section 119(a)(1) (42 U.S.C. 9619(a)(1)) is

22 amended—

23 (1) by inserting ‘‘or under the law of

24 any State or political subdivision’’ after

25 ‘‘Federal law’’; and
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1 (2) by adding at the end the following

2 new sentence: ‘‘Notwithstanding the pre3 ceding sentence, this section shall not

4 apply in determining the liability of a re5 sponse action contractor under the law of

6 any State or political subdivision thereof

7 if the State has adopted by statute an al8 ternative process intended to promote

9 quality response actions and ensure max10 imum competition by professional compa11 nies of all sizes providing response ac12 tions.’’.

13 (b) NEGLIGENCE STANDARD.—Section

14 119(a)(2) (42 U.S.C. 9619(a)(2)) is amended by

15 inserting ‘‘(A)’’ before ‘‘Paragraph’’ and by

16 adding at the end the following:

17 ‘‘(B) For the purposes of this para18 graph, a response action contractor’s con19 duct shall not be deemed to be negligent

20 if—

21 ‘‘(i) such conduct is based on the

22 standard of skill and learning com23 monly possessed by members of the

24 profession in good standing as those

25 standards exist at the time that the
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1 conduct occurred and under the par2 ticular circumstances involved, or

3 ‘‘(ii) such conduct is carried out

4 in accordance with a plan which was

5 approved by the President.’’.

6 (c) CLARIFICATION OF RESPONSE ACTION

7 CONTRACTOR LIABILITY.—Section 119(a) (42

8 U.S.C. 9619(a)) is amended by inserting after

9 paragraph (4) the following new paragraph:

10 ‘‘(5) LIABILITY.—Notwithstanding any

11 other provision of this Act, any liability

12 of a response action contractor under

13 this Act shall be determined solely in ac14 cordance with this section.’’.

15 (d) INDEMNIFICATION FOR THREATENED RE16 LEASES.—Section 119(a) (42 U.S.C. 9619(a)) is

17 further amended by adding at the end the fol18 lowing:

19 ‘‘(6) IMPLEMENTATION OF TECH20 NOLOGIES.—No response action contractor

21 shall be liable under this title solely as a

22 result of such contractor’s testing or im23 plementation of an investigative or reme24 dial technology with respect to a re25 sponse action if use of the technology in
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1 connection with the response action has

2 been approved by the authorized Federal

3 or State regulatory agency. This para4 graph shall not apply in the case of neg5 ligence, gross negligence, or intentional

6 misconduct by such contractor in imple7 menting the approved technology, includ8 ing any noncompliance with the ap9 proved process for implementing the

10 technology.’’.

11 (e) INDEMNIFICATION CLARIFICATION.—Sec12 tion 119(c)(1) (42 U.S.C. 9619(c)(1)) is amended

13 by inserting ‘‘under Federal, State, or com14 mon law’’ after ‘‘any liability’’.

15 (f) INDEMNIFICATION FOR THREATENED RE16 LEASES.—Section 119(c)(5)(A) (42 U.S.C.

17 9619(c)(5)(A)) is amended by inserting ‘‘or

18 threatened release’’ after ‘‘release’’ each place

19 it appears.

20 (g) DETERMINATION TO INDEMNIFY.—Sec21 tion 119(c) (42 U.S.C. 9619(c)) is amended by

22 redesignating paragraphs (5), (6), (7), and (8)

23 as paragraphs (6), (7), (8), and (9), respec24 tively, and by inserting after paragraph (4)

25 the following new paragraph:
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1 ‘‘(5) DETERMINATION TO INDEMNIFY.—

2 Notwithstanding any guidelines or regu3 lations of this section, the President

4 shall, for each response action contract

5 for a facility or facilities, make a decision

6 whether to enter into an indemnification

7 agreement with a response action con8 tractor. The President shall enter into

9 such an agreement unless the President

10 determines there is insurance reasonably

11 available to such contractor upon fair

12 and reasonable terms (including consid13 eration of premium, policy terms, and

14 deductibles) that is likely to provide ade15 quate long-term protection to the public

16 for the potential liabilities involved in

17 the response action (including consider18 ation of policy coverage, limits, and re19 newal terms). The President’s determina20 tion shall be made a part of the invitation

21 for bids or the request for proposals for

22 each such response action contract.’’.

23 (h) EXTENSION OF SECTION 119 COVERAGE.—

24 Section 119(e)(1) (42 U.S.C. 9619(e)(1)) is

25 amended—
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1 (1) by striking ‘‘carrying out an agree2 ment under section 106 or 122’’;

3 (2) by striking ‘‘any remedial action

4 under this Act at a facility listed on the

5 National Priorities List, or any removal

6 under this Act,’’ and inserting ‘‘any re7 sponse action under this Act’’; and

8 (3) by inserting ‘‘or to undertake ap9 propriate actions necessary to protect

10 and restore any natural resources dam11 aged by such release or threatened re12 lease’’ before the period at the end.

13 (i) EXTENSION.—Section 119 (42 U.S.C.

14 9619) is amended—

15 (1) in subsection (e)(2)(C) by striking

16 ‘‘, and before January 1, 1996,’’; and

17 (2) in subsection (g)(5) by striking ‘‘,

18 or after December 31, 1995’’.

19 (j) STATUTE OF REPOSE.—Section 119 (42

20 U.S.C. 9619) is amended by adding at the end

21 the following new subsection:

22 ‘‘(h) LIMITATION ON ACTIONS AGAINST RE23 SPONSE ACTION CONTRACTORS.—No action to

24 recover for any injury to property, real or per25 sonal, or for bodily injury or wrongful death,
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1 or any other expenses or costs arising out of

2 the performance of services under a response

3 action contract, nor any action for contribu4 tion or indemnity for damages sustained as a

5 result of such injury, shall be brought against

6 any response action contractor more than 6

7 years after the completion of work at any site

8 under such contract. The limitation pre9 scribed in this subsection shall not affect any

10 right of indemnification which such response

11 action contractor may have under this section

12 or may acquire by written agreement with

13 any party. This subsection shall not apply if

14 a State adopts by statute an alternative proc15 ess intended to promote quality response ac16 tions and ensure maximum competition by

17 professional companies of all sizes providing

18 response actions.’’.

19 SEC. 409. ENHANCEMENT OF SETTLEMENT AUTHORITIES.

20 Section 122 (42 U.S.C. 9622) is amended as

21 follows:

22 (1) Subsection (b) is amended by

23 striking paragraph (3) and redesignating

24 paragraph (4) as paragraph (3).
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1 (2) Section 122(d)(1) is amended by

2 adding at the end the following new sub3 paragraph:

4 ‘‘(D) COMPLIANCE.—Any consent

5 decree shall require the parties to at6 tempt expeditiously to resolve dis7 agreements concerning implementa8 tion of the remedial action informally

9 with the appropriate Federal and

10 State agencies. Where the parties

11 agree, the consent decree may pro12 vide for administrative enforcement.

13 Each consent decree shall also con14 tain stipulated penalties for viola15 tions of the decree in an amount not

16 to exceed $25,000 per day, which may

17 be enforced by either the President

18 or the State. Such stipulated pen19 alties shall not be construed to im20 pair or affect the authority of the

21 court to order compliance with the

22 specific terms of any such decree.’’.

23 (3) Subsection (e) is amended—

24 (A) by striking paragraph (3); and
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1 (B) by redesignating paragraphs

2 (4) and (5) as paragraphs (3) and (4),

3 respectively.

4 (4) The section is amended—

5 (A) by transferring paragraph (6)

6 to the end of the section and redesig7 nating such paragraph as subsection

8 (o);

9 (B) in such subsection (o) (as so

10 transferred and redesignated), by

11 striking ‘‘remedial action’’ and insert12 ing ‘‘response action’’, and by insert13 ing ‘‘or the State under applicable

14 law’’ before the period at the end; and

15 (C) by adding after such sub16 section (o) (as so transferred and re17 designated) the following new sub18 sections:

19 ‘‘(p) RETENTION OF FUNDS.—(1) If, as part of

20 any settlement agreement under this Act, the

21 potentially responsible parties will be paying

22 amounts to the President for carrying out any

23 response action, the President may retain

24 such amounts in interest bearing accounts,

25 and use such amounts, together with accrued
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1 interest, to conduct or enable other persons to

2 conduct such response action.

3 ‘‘(2) If, as part of any settlement agree4 ment for carrying out a response action under

5 this Act, a potentially responsible party or

6 parties will be paying amounts to the United

7 States, the Administrator is authorized to ac8 cept ownership of a financial instrument run9 ning irrevocably to the benefit of the United

10 States to conduct, or enable other persons to

11 conduct, such response actions. For the pur12 poses of this paragraph, the term ‘financial in13 strument’ means an annuity contract, funding

14 agreement, or similar instrument acceptable

15 to the Secretary of the Treasury, that is pur16 chased by one or more potentially responsible

17 parties, and has a defined schedule of peri18 odic payments which coincides with the obli19 gations set forth in the settlement agreement.

20 Periodic payments under such a financial in21 strument will be made to the owner, or as the

22 owner directs, for response costs at the facil23 ity which is the subject of the settlement

24 agreement.
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1 ‘‘(q) CHALLENGE TO COST RECOVERY COMPO2 NENT OF SETTLEMENT.—Notwithstanding the

3 limitations on review in section 113(h), and

4 except as provided in subsection (g) of this

5 section, a person whose potential claim for re6 sponse costs or contribution is limited as a re7 sult of contribution protection afforded by an

8 administrative settlement under this section

9 may challenge the cost recovery component of

10 such settlement. Such a challenge may be

11 made only by filing a complaint against the

12 Administrator in the United States District

13 Court within 60 days after such settlement be14 comes final. Venue shall lie in the district in

15 which the principal office of the appropriate

16 region of the Environmental Protection Agen17 cy is located. Any review of an administrative

18 settlement shall be limited to the administra19 tive record, and the settlement shall be

20 upheld unless the objecting party can dem21 onstrate on that record that the decision of

22 the President to enter into the administrative

23 settlement was arbitrary, capricious, or other24 wise not in accordance with law.
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1 ‘‘(r) UNSUCCESSFUL CHALLENGERS LIABLE

2 FOR ATTORNEY’S FEES.—Any party who chal3 lenges any settlement entered into between

4 the President and any potentially responsible

5 party under this Act, and who is not success6 ful in overturning or modifying the settle7 ment, shall be liable to the United States and

8 any settling party for all reasonable attor9 neys’ fees and costs incurred in defending the

10 settlement.’’.

11 SEC. 410. PROFESSIONAL SERVICES.

12 Section 122 is amended by adding after

13 subsection (r), as added by section 408, the fol14 lowing new subsection:

15 ‘‘(s) PROFESSIONAL SERVICES.—The Admin16 istrator has the authority to use the proce17 dures set forth in section 109(e) to obtain the

18 services of neutral professionals to assist in

19 the conduct of settlement negotiations under

20 this section, whether or not the neutral pro21 fessional actually participates in such nego22 tiations.’’.

23 SEC. 411. FINAL CONVENANTS.

24 Section 122(f) is amended as follows:
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1 (1) Paragraph (1) is amended to read

2 as follows:

3 ‘‘(1) FINAL COVENANTS.—The President

4 shall offer potentially responsible parties

5 who enter into settlement agreements

6 that are in the public interest a final cov7 enant not to sue concerning any liability

8 to the United States under this Act, in9 cluding a covenant with respect to future

10 liability, for response actions or response

11 costs addressed in the settlement, if all of

12 the following conditions are met:

13 ‘‘(A) The settling party agrees to

14 perform, or there are other adequate

15 assurances of the performance of, a

16 final remedial action authorized by

17 the Administrator for the release or

18 threat of release that is the subject of

19 the settlement.

20 ‘‘(B) The remedial action does not

21 provide that any hazardous sub22 stances will remain at the facility at

23 concentrations above the protective

24 concentration levels established pur-
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1 suant to section 121(d) after the final

2 remedial action is completed.

3 ‘‘(C) The settlement agreement

4 has been reached prior to the com5 mencement of litigation against the

6 settling party under section 106 or

7 107 of this Act with respect to this fa8 cility.

9 ‘‘(D) The settling party waives all

10 contribution rights against other po11 tentially responsible parties at the fa12 cility.

13 ‘‘(E) The settling party pays a pre14 mium that compensates for the risks

15 of remedy failure; future liability re16 sulting from unknown conditions; un17 anticipated increases in the cost of

18 any uncompleted response action, un19 less the settling party is performing

20 the response action; and the United

21 States litigation risk as provided in

22 section 130 with respect to persons

23 who have not resolved their liability

24 to the United States under this Act,

25 unless all parties have settled their li-
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1 ability to the United States, or the

2 settlement covers 100 percent of the

3 United States response costs. The

4 President shall have sole discretion

5 to determine the appropriate amount

6 of any such premium, and such deter7 minations are committed to the Presi8 dent’s discretion. The President has

9 discretion to waive or reduce the pre10 mium payment for persons who dem11 onstrate an inability to pay such a

12 premium.

13 ‘‘(F) The settlement is otherwise

14 acceptable to the United States.’’.

15 (2) Paragraph (3) is amended to read

16 as follows:

17 ‘‘(3) DISCRETIONARY COVENANTS.—For

18 settlements under this title for which

19 covenants under section 122(f)(1) are not

20 available, the President may, in his dis21 cretion, provide any person with a cov22 enant not to sue concerning any liability

23 to the United States under this title, if

24 the covenant not to sue is in the public

25 interest. Such covenants shall be subject
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1 to the requirements of section 122(f)(5).

2 The President may include any condi3 tions in such covenant not to sue, includ4 ing the additional condition referred to

5 in paragraph (5). In determining whether

6 such conditions or covenants are in the

7 public interest, the President shall con8 sider the nature and scope of the commit9 ment by the settling party under the set10 tlement, the effectiveness and reliability

11 of the response action, the nature of the

12 risks remaining at the facility, the

13 strength of evidence, the likelihood of

14 cost recovery, the reliability of any re15 sponse action or actions to restore, re16 place, or acquire the equivalent of in17 jured natural resources, the extent to

18 which performance standards are in19 cluded in the order or decree, the extent

20 to which the technology used in the re21 sponse action is demonstrated to be effec22 tive, and any other factors relevant to the

23 protection of human health and the envi24 ronment.’’.
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1 (3) Such subsection (f) is amended by

2 striking paragraph (4) and redesignating

3 paragraphs (5) and (6) as paragraphs (4)

4 and (5), respectively.

5 (4) Paragraph (2) is amended by strik6 ing ‘‘remedial’’ each place it appears and

7 inserting ‘‘response’’.

8 (5) Subparagraph (A) of paragraph (5)

9 (as so redesignated) is amended—

10 (A) by striking ‘‘remedial’’ and in11 serting ‘‘response’’;

12 (B) by striking ‘‘paragraph (2)’’ in

13 the first sentence and inserting

14 ‘‘paragraph (1) or (2)’’;

15 (C) by striking ‘‘de minimis settle16 ments’’ and inserting ‘‘de minimis and

17 other expedited settlements pursuant

18 to subsection (g) of this section’’; and

19 (D) by striking ‘‘the President cer20 tifies under paragraph (3) that reme21 dial action has been completed at the

22 facility concerned’’, and inserting

23 ‘‘that the response action that is the

24 subject of the settlement agreement is

25 selected’’.
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1 (6) Subparagraph (B) of paragraph (5)

2 (as so redesignated) is amended—

3 (i) by striking ‘‘In extraor4 dinary circumstances, the’’ and

5 inserting ‘‘The’’;

6 (ii) by striking ‘‘those referred

7 to in paragraph (4) and’’;

8 (iii) by striking ‘‘if other

9 terms,’’ and inserting ‘‘, if the

10 agreement containing the cov11 enant not to sue provides for pay12 ment of a premium to address

13 possible remedy failure or any re14 leases that may result from un15 known conditions, and if other

16 terms,’’; and

17 (iv) by inserting at the end

18 the following: ‘‘The President

19 may, in his discretion, waive or

20 reduce the premium payment for

21 persons who demonstrate an in22 ability to pay such a premium.’’.

23 SEC. 412. EXPEDITED FINAL SETTLEMENTS.

24 Section 122 is amended as follows:
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1 (1) Subsection (g) is amended by

2 striking ‘‘(g)’’ and all that follows through

3 the end of subparagraph (A) of paragraph

4 (1) and inserting in lieu thereof the fol5 lowing:

6 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—

7 ‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED

8 SETTLEMENT.—The President shall, as

9 promptly as possible, offer to reach a

10 final administrative or judicial settle11 ment with potentially responsible parties

12 who, in the judgment of the President,

13 meet one or more of the following condi14 tions for eligibility for an expedited set15 tlement—

16 ‘‘(A) The potentially responsible

17 party’s individual contribution of

18 hazardous substances at the facility

19 is de minimis. The contribution of

20 hazardous substance to a facility by a

21 potentially responsible party is de

22 minimis if both of the following con23 ditions are met:

24 ‘‘(i) The potentially respon25 sible party’s volumetric contribu-
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1 tion of materials containing haz2 ardous substances is minimal in

3 comparison to the total volu4 metric contributions of materials

5 containing hazardous substances

6 at the facility; such individual

7 contribution is presumed to be

8 minimal if it is one percent or less

9 of the total volumetric contribu10 tion at the facility, unless the Ad11 ministrator identifies a different

12 threshold based on site-specific

13 factors.

14 ‘‘(ii) The potentially respon15 sible party’s hazardous sub16 stances do not present toxic or

17 other hazardous effects that are

18 significantly greater than those of

19 other hazardous substances at the

20 facility.’’.

21 (2) Subsection (g) is further amended

22 by inserting after subparagraph (B) of

23 paragraph (1) the following:

24 ‘‘(C) The potentially responsible

25 party’s liability is based solely on
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1 paragraph (3) or (4) of section 107(a),

2 and the arrangement for disposal,

3 treatment, or transport for disposal

4 or treatment, or the acceptance for

5 transport for disposal or treatment,

6 involved only municipal solid waste

7 or sewage sludge. The Administrator

8 may offer to settle the liability of gen9 erators and transporters of municipal

10 solid waste or sewage sludge whose

11 liability is limited pursuant to para12 graph (7) of section 107(a) for up to 10

13 percent of the total response costs at

14 the facility.

15 ‘‘(D)(i) The potentially responsible

16 party is a natural person, a small

17 business, or a municipality and can

18 demonstrate to the United States an

19 inability or limited ability to pay re20 sponse costs. A party who enters into

21 a settlement pursuant to this sub22 paragraph shall be deemed to have

23 resolved its liability under this Act to

24 the United States for all matters ad25 dressed in the settlement.
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1 ‘‘(ii) For purposes of this subpara2 graph, the following provisions apply:

3 ‘‘(I) In the case of a small busi4 ness, the President shall take into

5 consideration the ability to pay of

6 the business, if requested by the

7 business. The term ‘ability to pay’

8 means the President’s reasonable

9 expectation of the ability of the

10 small business to pay its total set11 tlement amount and still maintain

12 its basic business operations.

13 Such consideration shall include

14 the business’s overall financial

15 condition and demonstrable con16 straints on its ability to raise rev17 enues.

18 ‘‘(II) Any business requesting

19 such consideration shall promptly

20 provide the President with all rel21 evant information needed to de22 termine the business’s ability to

23 pay.

24 ‘‘(III) The business shall dem25 onstrate the amount of its ability
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1 to pay. If the business employs

2 fewer than 20 employees, and has

3 annual gross revenues of less

4 than $1,800,000 or a net profit

5 margin of less than 2 percent, the

6 President shall perform any anal7 ysis that may be required to dem8 onstrate the business’s ability to

9 pay. The President, in his discre10 tion, may perform such analysis

11 for any other party or require

12 such other party to perform the

13 analysis.

14 ‘‘(IV) If the President deter15 mines that a small business is un16 able to pay its total settlement

17 amount immediately, the Presi18 dent shall consider alternative

19 payment methods as may be nec20 essary or appropriate. The meth21 ods to be considered may include

22 installment payments to be paid

23 during a period of not to exceed

24 10 years and the provision of in25 kind services.
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1 ‘‘(iii) For purposes of this sub2 paragraph, in the case of a municipal

3 owner or operator, the President

4 shall consider, to the extent that in5 formation is provided by the munici6 pality, the following factors:

7 ‘‘(I) the municipality’s general

8 obligation bond rating and infor9 mation about the most recent

10 bond issue for which the rating

11 was prepared;

12 ‘‘(II) the amount of total avail13 able funds (other than dedicated

14 funds and State assistance pay15 ments for remediation of inactive

16 hazardous waste sites);

17 ‘‘(III) the amount of total op18 erating revenues (other than obli19 gated or encumbered revenues);

20 ‘‘(IV) the amount of total ex21 penses;

22 ‘‘(V) the amounts of total debt

23 and debt service;

24 ‘‘(VI) per capita income;

25 ‘‘(VII) real property values;
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1 ‘‘(VIII) unemployment infor2 mation; and

3 ‘‘(IX) population information.

4 ‘‘(iv) A municipality may also sub5 mit for consideration by the Presi6 dent an evaluation of the potential

7 impact of the settlement on essential

8 services that the municipality must

9 provide, and the feasibility of making

10 delayed payments or payments over

11 time. If a municipality asserts that it

12 has additional environmental obliga13 tions besides its potential liability

14 under this Act, then the municipality

15 may create a list of the obligations,

16 including an estimate of the costs of

17 complying with such obligations.

18 ‘‘(v) A municipality may establish

19 an inability to pay through an affirm20 ative showing that such payment of

21 its liability under this Act would ei22 ther—

23 ‘‘(I) create a substantial de24 monstrable risk that the munici25 pality would default on existing
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1 debt obligations, be forced into

2 bankruptcy, be forced to dissolve,

3 or be forced to make budgetary

4 cutbacks that would substantially

5 reduce current levels of protec6 tion of public health and safety;

7 or

8 ‘‘(II) necessitate a violation of

9 legal requirements or limitations

10 of general applicability concern11 ing the assumption and mainte12 nance of fiscal municipal obliga13 tions.

14 ‘‘(vi) This subparagraph does not

15 limit or affect the President’s author16 ity to evaluate any person’s ability to

17 pay or to enter into settlements with

18 any person based on that person’s in19 ability to pay.’’.

20 (3) Paragraphs (2) and (3) of sub21 section (g) are amended to read as fol22 lows:

23 ‘‘(2) BASIS OF DETERMINATION.—Any

24 person who enters into a settlement pur25 suant to this subsection shall provide any
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1 information requested by the President

2 or by an allocator in accordance with sec3 tion 130(d)(2) or section 104(e) of this Act.

4 The determination of whether a person is

5 eligible for an expedited settlement shall

6 be made on the basis of all information

7 available to the President at the time the

8 determination is made. Neither the Presi9 dent’s determination as to the eligibility

10 of a party for settlement pursuant to this

11 section, nor the terms of the final settle12 ment, shall be subject to judicial review.

13 If the President determines that a party

14 is not eligible for a settlement pursuant

15 to this section, the President shall ex16 plain the basis for that determination in

17 writing to any person who requests such

18 a settlement.

19 ‘‘(3) ADDITIONAL FACTORS RELEVANT TO

20 SETTLEMENTS WITH MUNICIPALITIES.—In

21 any settlement with a municipality pur22 suant to this title, the President may take

23 additional equitable factors into account

24 in determining an appropriate settlement

25 amount, including the limited resources
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1 available to that party, and any in-kind

2 services that the party may provide to

3 support the response action at the facil4 ity. In considering the value of in-kind

5 services, the President shall consider the

6 fair market value of those services.’’.

7 (4) Subsection (g) is further amend8 ed—

9 (A) in paragraph (4), by striking

10 ‘‘$500,000’’ and inserting ‘‘$2,000,000’’;

11 and

12 (B) by striking paragraph (5).

13 (5) Subsection (h) is amended—

14 (A) by amending the heading to

15 read as follows: ‘‘AUTHORITY TO SETTLE

16 CLAIMS FOR FINES, CIVIL PENALTIES,

17 PUNITIVE DAMAGES, AND COST RECOV18 ERY.—’’;

19 (B) in paragraph (1)—

20 (i) in the first sentence, by

21 striking ‘‘costs incurred’’ and in22 serting ‘‘past and future costs in23 curred or that may be incurred’’;

24 (ii) in the first sentence, by in25 serting after ‘‘if the claim has not
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1 been referred to the Department

2 of Justice for further action.’’ the

3 following: ‘‘The head of any de4 partment or agency with the au5 thority to seek fines, civil pen6 alties, or punitive damages under

7 this Act may consider, com8 promise, and settle claims for any

9 such fines, civil penalties, or pu10 nitive damages which may other11 wise be assessed in civil adminis12 trative or judicial proceedings if

13 the claim has not been referred to

14 the Department of Justice for fur15 ther action. If the total claim for

16 fines, civil penalties, or punitive

17 damages exceeds $300,000, such

18 claim may be compromised and

19 settled only with the prior writ20 ten approval of the Attorney Gen21 eral.’’; and

22 (iii) in the second sentence, by

23 striking ‘‘$500,000 (excluding in24 terest), any claim referred to in

25 the preceding sentence’’ and in-
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1 serting ‘‘$2,000,000 (excluding in2 terest), any claim for response

3 costs referred to in this sub4 section’’; and

5 (C) by striking paragraph (4).

6 SEC. 413. ALLOCATION PROCEDURES.

7 Insert after section 129 the following new

8 section:

9 ‘‘SEC. 130. ALLOCATION AT MULTIPARTY FACILITIES.

10 ‘‘(a) SCOPE.—

11 ‘‘(1) POST-INTRODUCTION RODS.—For

12 each non-federally owned facility listed

13 on the National Priorities List involving 2

14 or more potentially responsible parties

15 for which the President selects a reme16 dial action on or after February 3, 1994,

17 the Administrator shall initiate the allo18 cation process under this section. This

19 paragraph shall not apply to response ac20 tions selected prior to such date.

21 ‘‘(2) PRE-INTRODUCTION RODS.—For

22 each non-federally owned facility listed

23 on the National Priorities List involving 2

24 or more potentially responsible parties,

25 for any remedial action selected by the
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1 President before February 3, 1994, the

2 Administrator shall initiate the allocation

3 process under this section, if requested to

4 do so by a potentially responsible party

5 which has resolved its liability to the

6 United States with respect to the reme7 dial action or which is performing the re8 medial action pursuant to an order is9 sued under section 106(a).

10 ‘‘(3) OTHER FACILITIES.—The Adminis11 trator, as the Administrator deems appro12 priate, may initiate the allocation process

13 under this section for any facility other

14 than a facility referred to in paragraph

15 (1) or (2) involving 2 or more potentially

16 responsible parties.

17 ‘‘(4) EXCLUDED FACILITIES.—The alloca18 tion process under this section shall not

19 apply to any of the following:

20 ‘‘(A) A facility for which there has

21 been a final settlement, decree, or

22 order that determines all liability or

23 allocated shares of all potentially re24 sponsible parties.
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1 ‘‘(B) A facility at which all of the

2 potentially responsible parties are

3 liable or potentially liable as facility

4 owners or operators pursuant to sec5 tion 107(a) (1) or (2).

6 ‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An

7 allocation under this section, shall apply

8 to all remedial actions selected by the

9 President on or after February 3, 1994,

10 for a facility (but not to those remedial

11 actions described in paragraph (2)), un12 less the allocator determines that the al13 location should address only one or more

14 of such remedial actions.

15 ‘‘(6) MULTIPLE FACILITIES.—Where ap16 propriate, the Administrator may initiate

17 a single allocation process under this sec18 tion for more than 1 facility.

19 ‘‘(7) EFFECT OF ALLOCATION.—An allo20 cation performed pursuant to paragraph

21 (2) or (3) of this section shall not be con22 strued to require—

23 ‘‘(A) payment of an orphan share

24 pursuant to this section; or
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1 ‘‘(B) the conferral of reimburse2 ment rights pursuant to this section.

3 ‘‘(8) SETTLEMENT OFFERS AFTER COM4 MENCEMENT OF LITIGATION.—The provi5 sions of this section shall not apply to

6 any offer of settlement made after expira7 tion of the moratorium period under sub8 section (b).

9 ‘‘(b) MORATORIUM ON COMMENCEMENT OR

10 CONTINUATION OF SUITS.—

11 ‘‘(1) MORATORIUM.—No person may as12 sert any claim for response costs pursu13 ant to section 107 of this Act or com14 mence any civil action seeking recovery

15 of any response costs in connection with

16 a response action for which an allocation

17 is required under subsection (a)(1) or (2),

18 or for which the Administrator has initi19 ated an allocation under subsection

20 (a)(3), until 90 days after issuance of the

21 allocator’s report under subsection (h) or

22 (m), whichever is later.

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

24 claim for response costs pursuant to sec25 tion 107 of this Act or an action seeking
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1 recovery of response costs in connection

2 with a response action for which an allo3 cation is to be performed under this sec4 tion is pending—

5 ‘‘(A) upon the date of enactment

6 of the Superfund Reform Act of 1994,

7 or

8 ‘‘(B) upon initiation of an alloca9 tion,

10 the action or claim shall be stayed until

11 90 days after the issuance of the

12 allocator’s report under subsection (h) or

13 (m), unless the court determines that a

14 stay will result in manifest injustice.

15 ‘‘(3) STATUTE OF LIMITATIONS.—Any ap16 plicable limitations period with respect

17 to a cause of action subject to paragraph

18 (1) shall be tolled from the earlier of the

19 following until 180 days after the issu20 ance of the allocator’s report under sub21 section (h) or (m) has been issued by the

22 allocator:

23 ‘‘(A) The date of listing of the fa24 cility on the National Priorities List.
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1 ‘‘(B) The commencement of the al2 location process pursuant to this sec3 tion.

4 ‘‘(c) COMMENCEMENT OF ALLOCATION.—

5 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At

6 all facilities subject to this section, the

7 Administrator shall, as soon as prac8 ticable, but not later than 60 days after

9 the commencement of the remedial inves10 tigation, initiate a thorough investigation

11 and search for all potentially responsible

12 parties, using his authorities under sec13 tion 104. Any person may submit informa14 tion to the Administrator concerning any

15 potentially responsible party at the facil16 ity, and the Administrator shall consider

17 such information in carrying out the re18 sponsible party search.

19 ‘‘(2) NOTIFICATION OF DE MINIMIS PAR20 TIES.—As soon as practicable after receipt

21 of sufficient information, but not more

22 than 12 months after the commencement

23 of the remedial investigation, the Admin24 istrator shall take each of the following

25 actions:
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1 ‘‘(A) The Administrator shall no2 tify any potentially responsible party

3 who the Administrator determines is

4 eligible for an expedited final settle5 ment in accordance with section

6 122(g)(1)(A) of its eligibility, based on

7 information available to the Adminis8 trator at the time the determination

9 is made. Any such information that is

10 not confidential shall, to the extent

11 practicable, be made available by the

12 Administrator to the party at the

13 time of the settlement offer.

14 ‘‘(B) The Administrator shall sub15 mit a written settlement offer to each

16 party notified under subparagraph

17 (A) no later than 60 days after such

18 notification. The Administrator shall,

19 at the same time, make available to

20 such party upon request any

21 nonconfidential information related

22 to the party’s settlement upon which

23 the Administrator based the settle24 ment offer. If the settlement offer is

25 based in whole or in part on con-
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1 fidential information, the Adminis2 trator shall so advise such party.

3 ‘‘(3) PRELIMINARY NOTICE TO OTHER

4 PARTIES.—As soon as practicable after re5 ceipt of sufficient information, but not

6 later than 18 months after commence7 ment of the remedial investigation, the

8 Administrator shall—

9 ‘‘(A) notify any party not pre10 viously notified under paragraph (2)

11 who the Administrator determines is

12 eligible for an expedited final settle13 ment in accordance with section

14 122(g)(1)(A) of its eligibility, based on

15 information available to the Adminis16 trator at the time the determination

17 is made;

18 ‘‘(B) issue a list of all potentially

19 responsible parties preliminarily

20 identified by the Administrator to all

21 such parties;

22 ‘‘(C) notify the public, in accord23 ance with section 117(d), of the list of

24 potentially responsible parties identi-
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1 fied pursuant to subparagraphs (A)

2 and (B) by the Administrator; and

3 ‘‘(D) make available all responses

4 to the Administrator’s information re5 quests, as well as other relevant in6 formation concerning the facility and

7 potentially responsible parties, to the

8 notified parties, to the extent it is

9 available to the Administrator.

10 The Administrator shall not make avail11 able any privileged or confidential infor12 mation, except as otherwise authorized

13 by law. The Administrator shall take the

14 actions specified in this paragraph with15 in 9 months after the date of enactment

16 of this section for all facilities eligible for

17 allocation under subsection (a)(1) or

18 (a)(2) for which the responsible party

19 search required by a paragraph (1) was

20 substantially complete prior to the date

21 of the enactment of this section.

22 ‘‘(4) STATUS OF PARTIES.—At the time

23 of proposing the list of potentially re24 sponsible parties under paragraph (3),

25 the Administrator shall—
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1 ‘‘(A) identify parties that are eligi2 ble for expedited settlement pursuant

3 to section 122(g);

4 ‘‘(B) identify parties who are not

5 eligible for such expedited settle6 ment; or

7 ‘‘(C) determine that there is insuf8 ficient information to ascertain

9 whether or not the party is entitled

10 to such expedited settlement.

11 ‘‘(5) NOMINATION OF PARTIES.—(A) For

12 60 days after information has been made

13 available pursuant to paragraph (3), the

14 parties identified by the Administrator

15 and members of the affected community

16 shall have the opportunity to identify

17 and nominate additional potentially re18 sponsible parties or otherwise provide in19 formation relevant to the facility or such

20 potentially responsible parties. This pe21 riod may be extended by the Adminis22 trator for an additional 30 days upon re23 quest of any person.

24 ‘‘(B) Any proposal for the addition of

25 any potentially responsible party with re-
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1 spect to a facility shall be supported by a

2 statement demonstrating that there is an

3 adequate basis in law and fact to deter4 mine that the additional nominated party

5 is potentially liable under this Act and by

6 full disclosure to the Administrator and

7 to the nominated party at the same time

8 of all available information concerning

9 that party’s liability under this Act and

10 that party’s contribution of hazardous

11 substances to the site. The nominated

12 party may submit to the Administrator

13 information relating to its inclusion as an

14 additional potentially responsible party

15 within 45 days of the receipt of such in16 formation.

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

18 Within 60 days after the end of the period

19 specified in paragraph (5)(A) for the pro20 posal of additional parties, the Adminis21 trator shall—

22 ‘‘(i) issue a list of parties subject

23 to the allocation process (hereinafter

24 referred to in this section as the ‘allo25 cation parties’);
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1 ‘‘(ii) identify in writing, as to each

2 of the proposed additional parties,

3 which parties the Administrator has

4 determined, in the Administrator’s

5 sole discretion—

6 ‘‘(I) to be eligible for expe7 dited settlement pursuant to sec8 tion 122(g),

9 ‘‘(II) not to be eligible for such

10 expedited settlement, and

11 ‘‘(III) for whom insufficient in12 formation exists to determine

13 whether or not the party is eligi14 ble for such expedited settlement;

15 and

16 ‘‘(iii) identify (in writing sup17 ported by brief explanation) those

18 parties as to which the Administrator

19 has determined, in the Administra20 tor’s sole discretion, that there is an

21 inadequate basis in law or fact to de22 termine that the party is liable under

23 this Act.

24 The Administrator shall consider, when

25 making determinations under this sub-
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1 paragraph, all available information pro2 vided pursuant to section 130(c)(5)(B).

3 For each party identified under clause

4 (iii), the Administrator shall further iden5 tify whether that party, if liable, would

6 be eligible for an expedited settlement.

7 ‘‘(B) At the time of issuance of the list

8 of parties provided for in subparagraph

9 (A), the Administrator shall provide the

10 potentially responsible parties who re11 ceived notice under this paragraph with

12 a list of neutral parties who are not em13 ployees of the United States and who the

14 Administrator determines, in the Admin15 istrator’s sole discretion, are qualified to

16 perform an allocation at the facility.

17 ‘‘(C) De minimis parties the Adminis18 trator identifies as potentially liable but

19 entitled to expedited settlement pursuant

20 to this section, shall not be subject to, or

21 assigned a share in, the allocation (except

22 to the extent required to determine the

23 orphan share pursuant to subsection (h)),

24 unless that party fails to reach an agree-
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1 ment with the President on settlement

2 terms within 30 days after the offer.

3 ‘‘(D) If the Administrator determines

4 that there is an inadequate basis in law

5 or fact to conclude that a party is liable

6 based on the information presented by

7 the nominating party or otherwise avail8 able to the Administrator, the determina9 tion shall have the following effect:

10 ‘‘(i) With respect to a party that

11 the Administrator has determined to

12 be—

13 ‘‘(I) exempt from liability pur14 suant to section 107(a)(6)(A) or

15 (B); or

16 ‘‘(II) not liable on some other

17 basis but who, if liable, would be

18 eligible for an expedited settle19 ment,

20 the Administrator’s determination

21 shall mean that the party shall not be

22 subject to, and shall not be assigned a

23 share in, the allocation.

24 ‘‘(ii) With respect to all other par25 ties, the Administrator’s determina-
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1 tion shall be accorded deference by

2 the allocator. For such parties the al3 locator shall consider the Administra4 tor’s determination together with the

5 allocation factors listed in subsection

6 (h)(2).

7 ‘‘(E) The Administrator’s determina8 tions for purposes of this subsection shall

9 not be subject to judicial review, nor

10 shall any determination or explanation

11 provided for purposes of the allocation be

12 admissible for any purpose in an action

13 commenced by the United States against

14 the party that is the subject of the deter15 mination or any other party.

16 ‘‘(F) The allocator may assign a zero

17 share to any party the allocator deems

18 should receive such a share in consider19 ation of the allocation factors including

20 the Administrator’s determinations under

21 subparagraph (C).

22 ‘‘(G) If a party is included in the allo23 cation pursuant to the nomination of a

24 potentially responsible party pursuant to

25 subsection (c)(5), but assigned a zero
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1 share by the allocator, that party’s costs

2 of participating in the allocation (includ3 ing reasonable attorneys’ fees) shall be

4 borne by the party who proposed the ad5 dition of the party to the allocation.

6 ‘‘(d) DE MINIMIS SETTLEMENT OFFER.—(1)

7 Within 30 days after the final list of parties is

8 issued pursuant to paragraph (6) of sub9 section (c), the Administrator shall submit a

10 written settlement offer to any party identi11 fied as a potentially responsible party pursu12 ant to this section who the Administrator has

13 determined to be eligible for an expedited

14 final settlement in accordance with section

15 122(g)(1)(A), and who has not entered into a

16 settlement with the United States regarding

17 the matters being addressed by the allocation.

18 The Administrator shall, at the same time,

19 make available to such party upon request

20 any nonconfidential information related to

21 the party’s settlement.

22 ‘‘(2) The President shall not include any

23 premia pursuant to section 122(g) in a settle24 ment offer made pursuant to paragraph (1)

25 more than 60 days after the date the offer is
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1 required to be made pursuant to paragraph

2 (1) to a party that is a small business, as de3 fined in section 101(47).

4 ‘‘(3) If a party is a small business which

5 the President has determined is eligible for a

6 settlement pursuant to section 122(g)(1)(A),

7 and the party is not offered a settlement by

8 the President within 120 days after the date

9 the offer is required to be made pursuant to

10 paragraph (1), the party shall have no further

11 liability under this Act for the costs of re12 sponse actions at the facility for which the al13 location is being performed, unless the Presi14 dent determines that there is just cause for

15 the delay and such delay is due to factors out16 side the President’s control.

17 ‘‘(e) SELECTION OF ALLOCATOR.—

18 ‘‘(1) PROPOSAL OF ADDITIONAL CAN19 DIDATES.—Any party identified by the Ad20 ministrator under subsection (c) may pro21 pose any person whom such party deems

22 qualified for selection as an allocator in

23 addition to those proposed from the list

24 provided under subsection (c)(6)(B).
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1 ‘‘(2) SELECTION OF ALLOCATOR BY ALLO2 CATION PARTIES.—(A) The allocation par3 ties shall select an allocator from the list

4 of allocators proposed by the Adminis5 trator or under paragraph (1) by the fol6 lowing voting method with each alloca7 tion party having a single vote:

8 ‘‘(i) Each allocation party, with

9 the Administrator voting for the iden10 tified but insolvent or defunct par11 ties, shall numerically rank the indi12 viduals on the final list of proposed

13 allocators, with a ranking of 1 indi14 cating first preference, and forward

15 its vote to the Administrator within

16 30 days of the issuance of the final

17 list of allocators pursuant to sub18 section (c)(6)(B).

19 ‘‘(ii) The proposed allocator who

20 receives the lowest combined numeri21 cal score, taking into account all

22 votes submitted to the Administrator

23 pursuant to clause (i), and who

24 agrees to serve as allocator, shall be

25 determined to be the allocator.
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1 ‘‘(B) The Administrator may cast the

2 votes of identified but insolvent or de3 funct parties.

4 ‘‘(3) PEREMPTORY STRIKE.—The Admin5 istrator may reject any allocator selected

6 by the allocation parties if the proposed

7 allocator is not on the list provided under

8 paragraph (6)(B) of subsection (c). In the

9 case of any such rejection, the allocation

10 parties shall select the allocator in order

11 of numerical ranking in accordance with

12 this subsection.

13 ‘‘(4) SELECTION OF ALLOCATOR BY EPA.—

14 If the allocation parties do not select an

15 allocator pursuant to this subsection

16 within 30 days after receipt of the list

17 provided under paragraph (2), the Ad18 ministrator shall select the allocator, ex19 cept that if the Administrator rejects 4 or

20 more allocators selected by the allocation

21 parties, the Administrator shall initiate a

22 new allocator selection process under

23 this section.

24 ‘‘(f) CONTRACT.—Following selection of the

25 allocator, the Administrator shall enter into a
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1 contract with the selected allocator for the

2 provision of allocation services, and imme3 diately make available all responses to infor4 mation requests, as well as other relevant in5 formation concerning the facility and poten6 tially responsible parties, to the allocator. The

7 Administrator has the authority to use the

8 procedures set forth in section 109(e) to ob9 tain the services of a neutral professional for

10 use in conducting allocation procedures

11 under this section, whether or not the neutral

12 professional actually conducts such allocation

13 procedures.

14 ‘‘(g) POTENTIALLY RESPONSIBLE PARTY SET15 TLEMENT.—At any time prior to the issuance of

16 an allocation report as described in sub17 section (h), any group of potentially respon18 sible parties may submit to the allocator a pri19 vate allocation for the remedial action. If such

20 private allocation meets all of the following

21 criteria, the allocator shall promptly adopt it

22 as the allocation report:

23 ‘‘(1) The private allocation is a bind24 ing allocation of 100 percent of the past,
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1 present, and future recoverable costs of

2 the remedial action or operable unit.

3 ‘‘(2) The private allocation does not

4 allocate any share of response costs to

5 any person who is not a signatory to the

6 proposed private allocation or, in the

7 case of any orphan share, unless the

8 United States is a signatory to the pro9 posed private allocation.

10 ‘‘(3) The signatories to the proposed

11 private allocation waive their contribu12 tion rights with respect to the remedial

13 action against all other potentially re14 sponsible parties at the facility.

15 ‘‘(h) ALLOCATION DETERMINATION.—

16 ‘‘(1) SETTLEMENT AND ALLOCATION RE17 PORT.—Following issuance of the final list

18 of allocation parties pursuant to sub19 section (c)(6)(A)(i), the allocator shall ini20 tiate and conduct an allocation process

21 that shall culminate in the issuance of a

22 written report, with a nonbinding, equi23 table allocation of the percentage shares

24 of responsibility of all allocation parties,

25 including the orphan share, for the facil-
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1 ity, and provide such report to the alloca2 tion parties and the Administrator. The

3 allocator shall provide the report to the

4 allocation parties and the Administrator

5 within 180 days of the issuance of the list

6 of allocation parties pursuant to sub7 section (c)(6) or the date of the contract

8 for allocation service pursuant to sub9 section (f), whichever is later. Upon re10 quest, for good cause shown, the Admin11 istrator may grant the allocator addi12 tional time to complete the allocation, not

13 to exceed 90 days.

14 ‘‘(2) FACTORS IN THE ALLOCATION.—The

15 allocator shall prepare a nonbinding, eq16 uitable allocation of percentage shares

17 for the facility based on the following fac18 tors:

19 ‘‘(A) The amount of hazardous

20 substances contributed by each allo21 cation party.

22 ‘‘(B) The degree of toxicity of haz23 ardous substances contributed by

24 each allocation party.
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1 ‘‘(C) The mobility of hazardous

2 substances contributed by each allo3 cation party.

4 ‘‘(D) The degree of involvement of

5 each allocation party in the genera6 tion, transportation, treatment, stor7 age, or disposal of the hazardous sub8 stance. For the purpose of carrying

9 out the preceding sentence, the allo10 cator shall assign a lower share to

11 any person where liability or poten12 tial liability is based on a party’s sta13 tus as an owner or operator and

14 where the allocation party did not en15 gage in the actual disposal of greater

16 than a de minimis quantity of hazard17 ous substances at a facility.

18 ‘‘(E) The degree of care exercised

19 by each allocation party with respect

20 to the hazardous substance, taking

21 into account the characteristics of

22 the hazardous substance.

23 ‘‘(F) The cooperation of each allo24 cation party in contributing to the re25 sponse action and in providing com-
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1 plete and timely information during

2 the allocation process.

3 ‘‘(G) Such other factors that the

4 Administrator determines are appro5 priate by published guidance. Any

6 such guidance shall be consistent

7 with this Act and shall be published

8 only after notice and opportunity for

9 public comment. An alleged failure of

10 the allocator to consider 1 or more

11 additional factors set forth in such

12 guidance shall not be deemed unlaw13 ful conduct or procedural error for

14 purposes of subsection (l) (2) or (3).

15 ‘‘(3) CONDUCT OF ALLOCATION PROC16 ESS.—The allocator shall conduct the allo17 cation process and render a decision

18 based solely on the provisions of this sec19 tion, including the allocation factors

20 specified in paragraph (2). Each party to

21 the allocation shall be afforded an oppor22 tunity to be heard (either orally or in

23 writing, at the allocator’s discretion), and

24 an opportunity to comment on a draft al-
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1 location report. The allocator shall not be

2 required to respond to comments.

3 ‘‘(4) IDENTIFICATION OF ORPHAN

4 SHARES.—

5 ‘‘(A) COMPONENTS OF ORPHAN

6 SHARE.—The allocator may determine

7 that a percentage share for the facil8 ity is specifically attributable to an

9 orphan share. The orphan share shall

10 consist only of the following:

11 ‘‘(i) Shares attributable to

12 hazardous substances that the al13 locator determines, on the basis

14 of information presented, to be

15 specifically attributable to identi16 fied but insolvent or defunct allo17 cation parties who are not affili18 ated with any viable allocation

19 party.

20 ‘‘(ii) The difference between

21 the aggregate shares that the allo22 cator determines, on the basis of

23 the information presented, is spe24 cifically attributable to allocation

25 parties that are contributors of
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1 municipal solid waste subject to

2 the limitations in section

3 107(a)(6), and the share actually

4 assumed by those parties in any

5 settlements with the United

6 States pursuant to section 122(g),

7 including the fair market value of

8 in-kind services provided by a

9 municipality.

10 ‘‘(iii) The difference between

11 the aggregate share that the allo12 cator determines, on the basis of

13 information presented, to be spe14 cifically attributable to allocation

15 parties with a limited ability to

16 pay response costs and the share

17 actually assumed by those parties

18 in any settlements with the

19 United States pursuant to section

20 122(g).

21 ‘‘(iv) Shares that the allocator

22 determines, on the basis of the in23 formation presented, are specifi24 cally attributable to parties that,

25 solely due to the operation of sub-
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1 section (d)(3), have no liability

2 under this Act for the costs of re3 sponse actions at the facility for

4 which the allocation is being per5 formed.

6 ‘‘(B) UNATTRIBUTABLE SHARES.—

7 Shares attributable to hazardous sub8 stances that the allocator cannot at9 tribute to any identified party shall

10 be distributed among the allocation

11 parties, including the orphan share.

12 ‘‘(i) ANSWERS AND CERTIFICATIONS TO

13 ALLOCATOR’S INFORMATION REQUESTS.—

14 ‘‘(1) SUBPOENAS AND INFORMATION RE15 QUESTS.—Where necessary to assist in de16 termining the allocation of shares, the al17 locator may request information or docu18 ments from any allocation party in ac19 cordance with paragraphs (2) or (5) of

20 section 104(e), and require by subpoena

21 the attendance of persons or the produc22 tion of documents, or other information

23 in accordance with section 104(e)(7). Any

24 allocation party to whom a request is di25 rected shall include in the response a cer-
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1 tification by a responsible representative

2 or authorized representative that satis3 fies the requirement of section 104(e)(3).

4 The allocator may also request the Ad5 ministrator to utilize the authorities of

6 paragraph (2) and to exercise any infor7 mation-gathering authority of the Admin8 istrator under this Act.

9 ‘‘(2) POWERS OF THE ALLOCATOR.—In

10 addition to the information-gathering au11 thority set forth in paragraph (1), the al12 locator shall have the authority to sched13 ule meetings and require the attendance

14 of allocation parties at such meetings; to

15 require that allocation parties wishing to

16 present similar legal or factual positions

17 consolidate their presentations; to obtain

18 or employ support services, including

19 secretarial and clerical services, com20 puter support services, and legal and in21 vestigative services; and to take any

22 other actions necessary to conduct a fair,

23 efficient, and impartial allocation proc24 ess.

25 ‘‘(j) CIVIL AND CRIMINAL PENALTIES.—
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1 ‘‘(1) CIVIL PENALTIES.—Where the allo2 cator issues an administrative subpoena

3 or information request pursuant to sub4 section (i), a party who unreasonably

5 fails to comply with the subpoena or re6 quest shall be subject to a civil penalty

7 not to exceed $25,000 for each day of non8 compliance.

9 ‘‘(2) ENFORCEMENT.—The allocator

10 may seek enforcement of an administra11 tive subpoena or information request

12 pursuant to subsection (i)(1), and shall

13 seek such enforcement by requesting that

14 the Attorney General commence an ac15 tion to enforce the subpoena or request.

16 The Attorney General, within 30 days

17 after receiving such request from the al18 locator, shall—

19 ‘‘(A) notify the allocator that the

20 Attorney General will commence an

21 action to enforce the subpoena or in22 formation request;

23 ‘‘(B) notify the allocator that the

24 Attorney General will not seek en25 forcement of the subpoena or request
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1 because the subpoena or request is

2 barred by law or would result in an3 noyance, embarrassment, oppression,

4 or undue burden or expense to the

5 party to whom it was issued; or

6 ‘‘(C) notify the allocator that the

7 Attorney General has insufficient in8 formation on which to determine

9 whether an enforcement action is ap10 propriate.

11 ‘‘(3) FAILURE OF ATTORNEY GENERAL TO

12 RESPOND.—If the Attorney General fails to

13 provide any response to the allocator

14 within 30 days of a request for enforce15 ment of a subpoena or information re16 quest, the allocator may retain counsel to

17 commence a civil action to enforce the

18 subpoena or information request.

19 ‘‘(4) PENALTY.—If the Attorney Gen20 eral or allocator prevails in an action to

21 enforce an allocator’s subpoena or infor22 mation request, the party who failed to

23 comply shall be subject to a sanction that

24 may include civil penalties as provided in

25 paragraph (1). The court shall require
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1 such party to pay the reasonable ex2 penses, including attorney’s fees, caused

3 by the failure to comply, unless the court

4 finds that the failure was substantially

5 justified or that other circumstances

6 make an award of expenses unjust.

7 ‘‘(5) CRIMINAL.—Any person who

8 knowingly makes any false material

9 statement or representation in the re10 sponse to an allocator’s information re11 quest or subpoena issued pursuant to

12 subsection (i) shall be deemed to have

13 made a false statement on a matter with14 in the jurisdiction of the United States

15 within the meaning of section 1001 of

16 title 18, United States Code.

17 ‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIAL18 ITY.—

19 ‘‘(1) DOCUMENT REPOSITORY.—The allo20 cator shall establish and maintain a doc21 ument repository containing copies of all

22 documents and information—

23 ‘‘(A) provided by the Adminis24 trator pursuant to this section,
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1 ‘‘(B) provided or generated by the

2 allocation parties, or

3 ‘‘(C) generated by the allocator

4 during the allocation.

5 The documents and information in the

6 document repository shall be available

7 only to the parties to the allocation proc8 ess for review and copying at their own

9 expense, subject to the confidentiality

10 provisions of paragraph (2). The Adminis11 trator shall provide to the allocator all

12 information obtained under section

13 104(e), including information entitled to

14 protection under section 1905 of title 18,

15 United States Code, or exempt from dis16 closure pursuant to section 552(a) of title

17 5, United States Code. An allocation party

18 shall not assert any privilege as a basis

19 for withholding any information from the

20 allocator.

21 ‘‘(2) CONFIDENTIALITY.—All documents

22 and materials submitted to the allocator

23 or placed in the document repository, to24 gether with the record of any informa25 tion generated or obtained during the al-
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1 location process, shall be confidential.

2 The allocator, each allocation party, the

3 Administrator, and the Attorney General

4 shall maintain such documents and mate5 rials, together with the record of any in6 formation generated or obtained during

7 the allocation, as confidential and are

8 prohibited from using any such material

9 in any other matter or proceeding, and

10 shall not be subject to disclosure under

11 section 552 of title 5, United States Code.

12 Such material shall not be discoverable

13 or admissible in any other Federal, State,

14 or local judicial or administrative pro15 ceedings, except—

16 ‘‘(A) a new allocation pursuant to

17 subsection (m) or (n) for the same re18 medial action, or

19 ‘‘(B) an initial allocation for a dif20 ferent remedial action at the same fa21 cility.

22 Nothing in this section shall be construed

23 to authorize any person, including the al24 locator, to withhold any documents or in25 formation from Congress, or any duly au-
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1 thorized Committee thereof, or limit in

2 any manner the right of Congress, or any

3 duly authorized Committee thereof, to

4 obtain such documents or information.

5 Any person disclosing such documents or

6 information to Congress shall notify the

7 person who produced such documents or

8 information of the fact of such disclosure

9 pursuant to paragraph (5).

10 ‘‘(3) DISCOVERABILITY AND ADMISSIBIL11 ITY.—Notwithstanding the foregoing, if

12 the original of any document or material

13 submitted to the allocator or placed in

14 the document repository was, in the

15 hands of the party which provided it, oth16 erwise discoverable or admissible, then

17 such original document, if subsequently

18 sought from such party, shall remain so.

19 If a fact generated or obtained during the

20 allocation was, in the hands of a witness,

21 otherwise discoverable or admissible,

22 then such fact, if subsequently sought

23 from such other party, shall remain so.

24 ‘‘(4) NO WAIVER OF PRIVILEGE.—The

25 submission of, documents, or information
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1 pursuant to the allocation process shall

2 not be deemed to be a waiver of any

3 privilege, applicable to such documents

4 or information under any Federal or

5 State law or rule of discovery or evi6 dence.

7 ‘‘(5) PROCEDURE WHEN DISCOVERY IS

8 SOUGHT.—Any person, including the

9 United States and any Federal, State, or

10 local agency, department or instrumen11 tality, receiving any request for a state12 ment, document, or material submitted,

13 or for the record of any allocation pro14 ceeding, shall promptly notify the person

15 who originally submitted such item and,

16 except in the case of a request from the

17 Congress or a duly authorized committee

18 thereof, shall provide such submitting

19 person the opportunity to assert and de20 fend the confidentiality of such item. No

21 person shall release or provide a copy of

22 the item to any person not a party to

23 such allocation, other than the Congress

24 or a duly authorized committee thereof,
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1 except as may be required by court

2 order.

3 ‘‘(6) CIVIL PENALTY FOR VIOLATION OF

4 CONFIDENTIALITY.—Any person who fails

5 to maintain the confidentiality of any

6 statements, documents or information

7 generated or obtained during an alloca8 tion proceeding, or who releases any

9 such information in violation of this sec10 tion shall be subject to civil penalties of

11 up to $25,000 per violation. Such pen12 alties may be sought in a civil action ini13 tiated by the Attorney General on behalf

14 of the United States, or any allocation

15 party adversely affected by the failure to

16 maintain confidentiality.

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

18 The Administrator and the Attorney General

19 of the United States may reject the allocator’s

20 report if they jointly determine that—

21 ‘‘(1) no rational interpretation of the

22 facts before the allocator, in light of the

23 factors required to be considered, would

24 form a reasonable basis for the shares as25 signed to the parties;
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1 ‘‘(2) the allocation was affected by

2 bias, fraud, or unlawful conduct; or

3 ‘‘(3) the allocation was substantially

4 and directly affected by procedural error.

5 The allocator’s report may not be rejected

6 after the United States has accepted a settle7 ment offer (excluding de minimis or other ex8 pedited settlements under section 122(g))

9 based on the allocation. The Administrator

10 and the Attorney General shall make any such

11 determination within 180 days after the re12 ceipt of the first offer based on the allocator’s

13 report. The determinations of the Adminis14 trator and the Attorney General under this

15 subsection shall not be judicially reviewable.

16 No such determination may be delegated to

17 any officer or employee of the Environmental

18 Protection Agency or the Department of Jus19 tice below the level of an Assistant Secretary

20 or Acting Assistant Secretary with authority

21 for implementing this Act at the Environ22 mental Protection Agency or the Department

23 of Justice.

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

25 States rejects an allocator’s report, the parties
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1 shall select a new allocator pursuant to sub2 section (e) to perform, on an expedited basis,

3 a new allocation based on the same record

4 available to the first allocator. The morato5 rium on commencement of litigation and toll6 ing of statutes of limitation set forth in sub7 section (b) shall be extended until 90 days

8 after the issuance of the second allocation re9 port. If the United States rejects the second

10 allocation the President may, following the

11 expiration of the moratorium on commence12 ment of litigation, commence an action under

13 section 107.

14 ‘‘(n) NEW INFORMATION.—Any settling

15 party, including the United States, may seek

16 a new allocation pursuant to subsection (h),

17 where that party presents clear and convinc18 ing information or the United States other19 wise determines on the basis of clear and con20 vincing information that—

21 ‘‘(1) the allocator did not have infor22 mation concerning 35 percent or more of

23 the materials containing hazardous sub24 stances at the facility, and that this infor25 mation has been discovered subsequent
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1 to the issuance of the allocator’s report;

2 or

3 ‘‘(2) the allocator did not have infor4 mation concerning a person not subject

5 to the allocation who contributed 15 per6 cent or more of materials containing haz7 ardous substances at the facility, and

8 that this information has been discovered

9 subsequent to the issuance of the

10 allocator’s report.

11 Determinations by the United States pursuant

12 to this subsection shall not be subject to judi13 cial review.

14 ‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—

15 ‘‘(1) ACCEPTANCE OF OFFERS.—If, with16 in 90 days after issuance of the allocator’s

17 report for an allocation conducted under

18 subsection (a)(1), an allocation party—

19 ‘‘(A) makes a written offer to set20 tle with respect to the response ac21 tion based on the percentage share

22 specified by the allocator and on the

23 additional terms and conditions of

24 settlement (other than the allocated
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1 percentage share) that are acceptable

2 to the President, and

3 ‘‘(B) is not in default on any infor4 mation requests under this Act,

5 then the President shall not seek a high6 er percentage share other than the

7 premia authorized by this section, unless

8 the President has rejected the offer on a

9 basis other than the percentage share, or

10 unless the Administrator and the Attor11 ney General have rejected the allocation

12 report pursuant to subsection (l).

13 ‘‘(2) EXPLANATION OF REFUSAL TO SET14 TLE.—If the Administrator and the Attor15 ney General determine not to settle on

16 the basis of the allocation, they shall pro17 vide the allocation parties and members

18 of the affected community with a written

19 explanation of the Administrator’s deter20 mination.

21 ‘‘(3) SETTLEMENT PROVISIONS.—Settle22 ments based on allocated shares shall in23 clude each of the following:

24 ‘‘(A) A waiver of contribution

25 rights against all parties who are po-
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1 tentially responsible parties for the

2 response action, as well as a waiver

3 of any rights to challenge any settle4 ment the President enters into with

5 any other potentially responsible

6 party.

7 ‘‘(B) Covenants not to sue, consist8 ent with section 122(f), and provisions

9 regarding performance or adequate

10 assurance of performance of response

11 actions addressed in the settlement.

12 ‘‘(C) A premium determined on a

13 site specific basis and subject to the

14 limitations set forth in paragraph (4),

15 that compensates for the United

16 States litigation risk with respect to

17 potentially responsible parties who

18 have not resolved their liability to the

19 United States, except that no such

20 premium shall apply if all parties set21 tle or the settlement covers 100 per22 cent of response costs.

23 ‘‘(D) Contribution protection, con24 sistent with section 113(f), regarding

25 matters addressed in the settlement.
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1 Such settlement does not discharge

2 any of the other potentially respon3 sible parties unless its terms so pro4 vide, but it reduces the potential li5 ability of the others by the amount of

6 the settlement.

7 ‘‘(E) Provisions through which the

8 settling parties shall receive reim9 bursement from the Fund for any re10 sponse costs incurred by such parties

11 in excess of the aggregate of their al12 located share and any premia re13 quired by the settlement. Such right

14 to reimbursement shall not be contin15 gent on the United States recovery of

16 response costs from any responsible

17 person not a party to any settlement

18 with the United States.

19 ‘‘(4) PREMIUM LIMITATIONS.—The pre20 mium authorized by paragraph (3)(C) for

21 litigation risk shall not exceed the follow22 ing:

23 ‘‘(A) Five percent of the total costs

24 assumed by a settling party, where

25 settlements (and any orphan share
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1 identified by the allocator) account

2 for 80 percent or more of responsibil3 ity at the facility.

4 ‘‘(B) Ten percent of the total costs

5 assumed by a settling party, where

6 settlements (and any orphan share

7 identified by the allocator) account

8 for more than 60 percent and less

9 than 80 percent of responsibility at

10 the facility.

11 ‘‘(C) Fifteen percent of the total

12 costs assumed by a settling party,

13 where settlements (and any orphan

14 share identified by the allocator) ac15 count for more than 40 percent and

16 less than 60 percent of responsibility

17 at the facility.

18 ‘‘(D) Twenty percent of the total

19 costs assumed by a settling party,

20 where settlements (and any orphan

21 share identified by the allocator) ac22 count for 40 percent or less of respon23 sibility at the facility.

24 The Administrator shall have authority

25 to promulgate regulations to modify the
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1 premia percentages established in this

2 subsection. The Administrator may not

3 propose a rule before the date 36 months

4 after the enactment of this section, and

5 no such rule may take effect before the

6 date 48 months after the enactment of

7 this section. Such rule must be based

8 upon an administrative record establish9 ing that such modification is necessary to

10 reflect actual experience regarding the

11 litigation risk faced by the United States

12 in proceeding against nonsettling parties

13 under this section.

14 ‘‘(5) AUTHORIZATION OF REIMBURSE15 MENT.—In any settlement in which a

16 party agrees to perform response work in

17 excess of its share, the Administrator

18 shall have authority to carry out his duty

19 to reimburse settling parties under this

20 section pursuant to such reasonable pro21 cedures as the Administrator may pre22 scribe.

23 ‘‘(6) REIMBURSEMENT CLAIMS.—The Ad24 ministrator shall require all claims for re25 imbursement to be supported by—
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1 ‘‘(A) documentation of actual

2 costs incurred; and

3 ‘‘(B) sufficient information to en4 able the Administrator to determine

5 whether such costs were reasonable.

6 ‘‘(7) SETTLEMENTS WITH SMALL BUSINESS

7 PARTIES.—In connection with any small

8 business allocation party that makes a

9 written offer to settlement pursuant to

10 paragraph (1), and that the President de11 termines has a limited ability or inability

12 to pay its allocated share, the President

13 shall apply the provisions of section

14 122(g)(1)(D)(ii).

15 ‘‘(8) INDEPENDENT AUDITING.—The Ad16 ministrator may require independent au17 diting of any claim for reimbursement.

18 ‘‘(p) POST-ALLOCATION LITIGATION.—

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

20 may commence an action under section

21 107 against any person liable under that

22 section who has not resolved its liability

23 to the United States following allocation,

24 on or after 90 days following issuance of

25 the allocator’s report. In any such action,
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1 such person shall be liable in accordance

2 with section 107 for all response costs not

3 recovered through settlements with other

4 persons. Such recoverable costs shall in5 clude any federally funded orphan share

6 identified in accordance with subsection

7 (h), but shall not include any shares allo8 cated to Federal, State, or local govern9 mental agencies, departments, or instru10 mentalities. Defendants in any such ac11 tion may implead only allocation parties

12 who did not resolve their liability to the

13 United States. The Administrator and the

14 Attorney General shall issue guidelines to

15 ensure that the relief sought against de

16 minimis parties under principles of joint

17 and several liability will not be grossly

18 disproportionate to their contribution to

19 the facility. The application of such

20 guidelines is committed to the discretion

21 of the Administrator and the Attorney

22 General.

23 ‘‘(2) CERTIFICATION.—In commencing

24 any action under section 107 following al25 location, the Attorney General must cer-
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1 tify, in the complaint, that the United

2 States has been unable to reach a settle3 ment that would be in the best interests

4 of the United States. This certification

5 shall not be subject to judicial review.

6 ‘‘(3) DEFENDANTS.—No person may

7 commence an action under section 107 or

8 otherwise seek contribution against any

9 person who was not identified as an allo10 cation party pursuant to subsection (c) or

11 subsequently identified as a potentially

12 liable party under subsection (n) (relat13 ing to new information).

14 ‘‘(4) ADMISSIBILITY OF ALLOCATOR’S RE15 PORT.—The allocator’s report shall not be

16 admissible in any court for any purpose,

17 except as set forth in this section. The

18 allocator’s report, subject to the rules

19 and discretion of the court, may be ad20 missible solely for the purpose of assist21 ing the court in making an equitable allo22 cation of response costs among the rel23 ative shares of nonsettling liable parties.

24 ‘‘(5) COSTS OF ALLOCATION PROCEDURE

25 ON ORPHAN SHARE.—
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1 ‘‘(A) INCLUDED AS COSTS OF RE2 SPONSE.—The costs of implementing

3 the allocation procedure set forth in

4 this section, including reasonable fees

5 and expenses of the allocator, shall be

6 considered necessary costs of re7 sponse for purposes of this Act.

8 ‘‘(B) ORPHAN SHARE.—The costs at9 tributable to any funding of orphan

10 shares identified by the allocator pur11 suant to subsection (e)(4) also shall be

12 considered necessary costs of re13 sponse for purposes of this Act, and

14 shall be recoverable from liable par15 ties who do not resolve their liability

16 on the basis of the allocation.

17 ‘‘(6) REJECTION OF SHARE DETERMINA18 TION.—In any action by the United States

19 under this title, if the United States has

20 rejected an offer of settlement that is

21 consistent with subsection (o) and that

22 was presented to the United States prior

23 to the expiration of the moratorium pe24 riod set forth in subsection (b), the

25 offeror shall be entitled to recover from
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1 the United States the offeror’s reasonable

2 costs of defending the action after the

3 making of the offer (including reasonable

4 attorneys’ fees) if the ultimate resolution

5 of liability or allocation of costs with re6 spect to the offeror (taking into account

7 all settlements and reimbursements with

8 respect to the facility other than those at9 tributable to insurance or indemnifica10 tion), is as, or more, favorable to the

11 offeror than the offer based on the alloca12 tion.

13 ‘‘(q) REIMBURSEMENT FOR UAO PERFORM14 ANCE.—

15 ‘‘(1) REIMBURSEMENT.—Parties who

16 satisfactorily perform work under an ad17 ministrative order issued under section

18 106(a) with respect to a remedial action

19 for which an allocation is required by

20 subsection (a)(1), shall be entitled to re21 imbursement for the reasonable and nec22 essary costs of work they perform in ex23 cess of the share assigned to them in the

24 allocation in accordance with the provi25 sions of this section, provided that the al-
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1 location report is not rejected by the

2 United States and, that, at the end of the

3 moratorium following the allocation, the

4 performing party, in consideration of

5 such reimbursement—

6 ‘‘(A) agrees not to contest liability

7 for all response costs not inconsistent

8 with the National Contingency Plan

9 to the extent of the allocated share;

10 ‘‘(B) receives no covenant not to

11 sue;

12 ‘‘(C) agrees that its reimburse13 ment shall be reduced by an amount

14 equal to the maximum litigation risk

15 premium provided for in subsection

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

17 shares of the allocation parties who

18 have not reached settlements with

19 the United States by the end of the

20 moratorium on commencement of ac21 tions provided in subsection (b); and

22 ‘‘(D) waives contribution rights

23 against all parties who are poten24 tially responsible parties for the re25 sponse action, as well as waives any
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1 rights to challenge any settlement the

2 President enters into with any other

3 potentially responsible party.

4 ‘‘(2) OFFSET.—Any and all reimburse5 ment provided to a performing party for

6 work in excess of its share is subject to

7 equitable offset or reduction by the Ad8 ministrator upon a finding of a failure to

9 perform any aspect of the remedy in a

10 proper and timely manner.

11 ‘‘(3) TIME OF PAYMENT.—Any and all re12 imbursement to a performing party for

13 work in excess of its share shall be paid

14 after work is completed, but no sooner

15 than completion of the construction of

16 the remedial action.

17 ‘‘(4) LIMIT ON ORPHAN SHARE FUND18 ING.—The amount of orphan share fund19 ing available to the performing party

20 shall be further limited as follows:

21 ‘‘(A) Performing parties who fully

22 waive their right to challenge remedy

23 selection at the end of the morato24 rium following allocation shall be en25 titled to full reimbursement of costs
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1 in excess of the party’s share and at2 tributable by the allocator to the or3 phan share paid in nominal dollars

4 after the work is completed, but no

5 sooner than completion of the con6 struction of the remedial action.

7 ‘‘(B) Performing parties who re8 tain their right to challenge the rem9 edy shall be reimbursed for 90 per10 cent of orphan share funding, paid in

11 nominal dollars after the work is

12 completed, but no sooner than com13 pletion of the construction of the re14 medial action, unless the orphan

15 share is less than 20 percent of re16 sponsibility at the site, in which case

17 such parties shall be reimbursed only

18 80 percent of the orphan share.

19 For purposes of this subsection ‘nominal

20 dollars’ means actual dollars spent by the

21 performing party, without increase for

22 interest or inflation.

23 ‘‘(5) NONORPHAN SHARE REIMBURSE24 MENT.—Reimbursement for work in ex25 cess of the performing party’s allocated
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1 share but that is not attributable to the

2 orphan share shall be paid in nominal

3 dollars after work is completed, but no

4 sooner than completion of the construc5 tion of the remedial action, provided that

6 the performing party is entitled to all in7 terest (prejudgment and post judgment,

8 whether recovered from a party or

9 earned in a site account) that has ac10 crued on money recovered by the United

11 States from other parties for such work

12 at the time construction of the remedy is

13 completed.

14 ‘‘(6) REIMBURSEMENT CLAIMS.—The Ad15 ministrator shall require that all claims

16 for reimbursement be supported by—

17 ‘‘(A) documentation of actual

18 costs incurred; and

19 ‘‘(B) sufficient information to en20 able the Administrator to determine

21 whether such costs were reasonable.

22 ‘‘(7) INDEPENDENT AUDITING.—The Ad23 ministrator may require independent au24 diting of any claim for reimbursement.
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1 ‘‘(r) CAPPED APPROPRIATED ENTITLEMENT.—

2 (1) The United States shall pay, subject to the

3 numerical limitation in paragraph (2), in the

4 fiscal year 1996, and in each fiscal year there5 after, reimbursements to eligible parties for

6 costs incurred and equitably attributable to

7 orphan shares in accordance with subsection

8 (h)(4)(A).

9 ‘‘(2) There are authorized to be appro10 priated to the President from the Fund not to

11 exceed $300,000,000 for the fiscal year 1996,

12 and for each fiscal year thereafter for the pay13 ments required by paragraph (1), to remain

14 available until expended.

15 ‘‘(s) PROCEDURES.—The Administrator,

16 after consultation with the Attorney General,

17 may promulgate rules (or guidance) of Agency

18 organization, procedure, and practices but

19 shall not have additional authority, except as

20 specifically set forth in this section, to pro21 mulgate rules or publish guidance to restrict

22 the allocator’s discretion in the conduct of the

23 allocation.

24 ‘‘(t) ROLE OF FEDERAL AGENCIES.—Federal

25 departments, agencies, or instrumentalities
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1 that are identified as potentially responsible

2 parties shall be subject to, and be entitled to

3 the benefits of, the allocation process pro4 vided by this section to the same extent as any

5 other party.

6 ‘‘(u) REPRESENTATION OF THE UNITED

7 STATES AND AFFECTED STATES.—The Adminis8 trator and the Attorney General, and a rep9 resentative of any State that may be respon10 sible for a portion of the orphan share, shall

11 be entitled to review all documents and par12 ticipate in any phase of the allocation pro13 ceeding.

14 ‘‘(v) ANNUAL REPORT.—The President shall

15 report annually to Congress on the adminis16 tration of the allocation scheme under this

17 section, and provide information comparing

18 allocation results with actual settlements at

19 multiparty facilities.

20 ‘‘(w) SAVINGS PROVISIONS.—(1) Nothing in

21 this section shall in any way limit or affect the

22 President’s authority to exercise the powers

23 conferred by section 103, 104, 105, 106, or 122

24 of this title, or to commence an action against

25 a party where there is a contemporaneous fil-
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1 ing of a judicial consent decree resolving that

2 party’s liability; or to file a proof of claim or

3 take other action in a proceeding under title

4 11 of the United States Code.

5 ‘‘(2) The procedures established in this

6 section shall not be construed to modify or af7 fect in any way the principles of retroactive,

8 strict, joint and several liability under this

9 title.

10 ‘‘(3) Nothing in this section shall limit or

11 affect—

12 ‘‘(A) the Administrator’s obligation to

13 perform an allocation for facilities that

14 have been the subject of partial or expe15 dited settlements;

16 ‘‘(B) the ability of a potentially re17 sponsible party at a facility to resolve its

18 liability to the United States or other par19 ties at any time before initiation or com20 pletion of the allocation process;

21 ‘‘(C) the validity, enforceability, final22 ity, or merits of any judicial or adminis23 trative order, judgment, or decree that is

24 issued, signed, lodged, or entered with re25 spect to liability under this Act or that
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1 authorizes modification of any such

2 order, judgment or decree; or

3 ‘‘(D) the validity, enforceability, final4 ity or merits of any preexisting contract

5 or agreement relating to any allocation of

6 responsibility or any sharing of response

7 costs under this Act.

8 ‘‘(x) RESPONSE ACTION CONTRACTOR.—Not9 withstanding any other provision of this sec10 tion, any liability of a response action con11 tractor under this Act shall be determined in

12 accordance with section 119, to the extent

13 such liability arises from a person’s activities

14 as a response action contractor.’’.

15 SEC. 414. RECYCLING TRANSACTIONS.

16 (a) PURPOSES.—The purposes of this sec17 tion are—

18 (1) to promote the reuse and recy19 cling of scrap material in furtherance of

20 the goals of waste minimization and nat21 ural resource conservation while protect22 ing human health and the environment;

23 (2) to level the playing field between

24 the use of virgin materials and recycled

25 materials; and
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1 (3) to remove the disincentives and

2 impediments to recycling because of po3 tential liability.

4 (b) CLARIFICATION OF LIABILITY UNDER

5 CERCLA FOR RECYCLING TRANSACTIONS.—Title

6 I is amended by adding after section 128 the

7 following new section:

8 ‘‘SEC. 129. RECYCLING TRANSACTIONS.

9 ‘‘(a) LIABILITY CLARIFICATION.—As pro10 vided in subsections (b), (c), (d) and (e), a per11 son who arranged for the recycling of recycla12 ble material shall not be liable under section

13 107(a)(3) or 107(a)(4).

14 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For

15 purposes of this section, the term ‘recyclable

16 material’ means scrap paper, scrap plastic,

17 scrap glass, scrap textiles, scrap rubber (other

18 than whole tires), scrap metal, or spent lead19 acid, spent nickel-cadmium and other spent

20 batteries, as well as minor amounts of mate21 rial incident to or adhering to the scrap mate22 rial as a result of its normal and customary

23 use prior to becoming scrap.

24 ‘‘(c) TRANSACTIONS INVOLVING SCRAP

25 PAPER, PLASTIC, GLASS, TEXTILES, OR RUBBER.—
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1 Transactions involving scrap paper, scrap

2 plastic, scrap glass, scrap textiles, or scrap

3 rubber (other than whole tires) shall be

4 deemed to be arranging for recycling if the

5 person who arranged for the transaction (by

6 selling recyclable material or otherwise ar7 ranging for the recycling of recyclable mate8 rial) can demonstrate by a preponderance of

9 the evidence that all of the following criteria

10 were met at the time of the transaction:

11 ‘‘(1) The recyclable material met a

12 commercial specification grade.

13 ‘‘(2) A market existed for the recycla14 ble material.

15 ‘‘(3) A substantial portion of the recy16 clable material was made available for

17 use as a feedstock for the manufacture of

18 a new saleable product.

19 ‘‘(4) The recyclable material could

20 have been a replacement or substitute for

21 a virgin raw material, or the product to

22 be made from the recyclable material

23 could have been a replacement or sub24 stitute for a product made, in whole or in

25 part, from a virgin raw material.
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1 ‘‘(5) For transactions occurring 90

2 days or more after the date of enactment

3 of this section, the person exercised rea4 sonable care to determine that the facil5 ity where the recyclable material would

6 be handled, processed, reclaimed, or oth7 erwise managed by another person (here8 inafter in this section referred to as a

9 ‘consuming facility’) was in compliance

10 with substantive (not procedural or ad11 ministrative) provisions of any Federal,

12 State, or local environmental law or regu13 lation, or compliance order or decree is14 sued pursuant thereto, applicable to the

15 handling, processing, reclamation, stor16 age, or other management activities asso17 ciated with the recyclable material.

18 ‘‘(6) For purposes of this subsection,

19 ‘reasonable care’ shall be determined

20 using criteria that include (but are not

21 limited to) (A) the price paid in the recy22 cling transaction; (B) the ability of the

23 person to detect the nature of the con24 suming facility’s operations concerning

25 its handling, processing, reclamation, or
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1 other management activities associated

2 with the recyclable material; and (C) the

3 result of inquiries made to the appro4 priate Federal, State, or local environ5 mental agency (or agencies) regarding

6 the consuming facility’s past and current

7 compliance with substantive (not proce8 dural or administrative) provisions of

9 any Federal, State, or local environ10 mental law or regulation, or compliance

11 order or decree issued pursuant thereto,

12 applicable to the handling, processing,

13 reclamation, storage, or other manage14 ment activities associated with the recy15 clable material. For the purposes of this

16 paragraph, a requirement to obtain a per17 mit applicable to the handling, process18 ing, reclamation, or other management

19 activity associated with the recyclable

20 materials shall be deemed to be a sub21 stantive provision.

22 ‘‘(d) TRANSACTIONS INVOLVING SCRAP

23 METAL.—

24 ‘‘(1) Transactions involving scrap

25 metal shall be deemed to be arranging for
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1 recycling if the person who arranged for

2 the transaction (by selling recyclable ma3 terial or otherwise arranging for the re4 cycling of recyclable material) can dem5 onstrate by a preponderance of the evi6 dence that at the time of the trans7 action—

8 ‘‘(A) the person met the criteria

9 set forth in subsection (c) with re10 spect to the scrap metal;

11 ‘‘(B) the person was in compliance

12 with any applicable regulations or

13 standards regarding the storage,

14 transport, management, or other ac15 tivities associated with the recycling

16 of scrap metal that the Administrator

17 promulgates under the Solid Waste

18 Disposal Act subsequent to the enact19 ment of this section and with regard

20 to transactions occurring after the ef21 fective date of such regulations or

22 standards; and

23 ‘‘(C) the person did not melt the

24 scrap metal prior to the transaction.
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1 ‘‘(2) For purposes of paragraph (1)(C),

2 melting of scrap metal does not include

3 the thermal separation of 2 or more mate4 rials due to differences in their melting

5 points (referred to as ‘sweating’).

6 ‘‘(3) For the purposes of this sub7 section, the term ‘scrap metal’ means bits

8 and pieces of metal parts (e.g. bars,

9 turnings, rods, sheets, wire) or metal

10 pieces that may be combined together

11 with bolts or soldering (e.g. radiators,

12 scrap automobiles, railroad box cars),

13 which when worn or superfluous can be

14 recycled, except for scrap metals that the

15 Administrator excludes from this defini16 tion by regulation and steel shipping con17 tainers of a capacity from 30 liters to and

18 including 3,000 liters, whether intact or

19 not, having any hazardous substance (but

20 not metal bits or pieces) contained in or

21 adhering thereto.

22 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—

23 (1) Transactions involving spent lead-acid

24 batteries, spent nickel-cadmium batteries or

25 other spent batteries shall be deemed to be ar-
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1 ranging for recycling if the person who ar2 ranged for the transaction (by selling recycla3 ble material or otherwise arranging for the

4 recycling of recyclable material) can dem5 onstrate by a preponderance of the evidence

6 that at the time of the transaction—

7 ‘‘(A) the person met the criteria set

8 forth in subsection (c) with respect to the

9 spent lead-acid batteries, spent nickel10 cadmium batteries, or other spent bat11 teries but did not recover the valuable

12 components of such batteries; and

13 ‘‘(B)(i) with respect to transactions in14 volving lead-acid batteries, the person

15 was in compliance with applicable Fed16 eral environmental regulations or stand17 ards, and any amendments thereto, re18 garding the storage, transport, manage19 ment, or other activities associated with

20 the recycling of spent lead-acid batteries;

21 ‘‘(ii) with respect to transactions in22 volving nickel-cadmium batteries, Fed23 eral environmental regulations or stand24 ards are in effect regarding the storage,

25 transport, management, or other activi-
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1 ties associated with the recycling of

2 spent nickel-cadmium batteries, and the

3 person was in compliance with applicable

4 regulations or standards or any amend5 ments thereto; or

6 ‘‘(iii) with respect to transactions in7 volving other spent batteries, Federal en8 vironmental regulations or standards are

9 in effect regarding the storage, transport,

10 management, or other activities associ11 ated with the recycling of such batteries,

12 and the person was in compliance with

13 applicable regulations or standards or

14 any amendments thereto.

15 ‘‘(2) For purposes of paragraph (1)(A) of

16 this subsection, a person who, by contract, ar17 ranges or pays for processing of batteries by

18 an unrelated third person and receives from

19 such third person materials reclaimed from

20 such batteries shall not thereby be deemed to

21 recover the valuable components of such bat22 teries.

23 ‘‘(f) EXCLUSIONS.—(1) The exemptions set

24 forth in subsections (c), (d), and (e) shall not

25 apply if—
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1 ‘‘(A) the person had an objectively

2 reasonable basis to believe at the time of

3 the recycling transaction—

4 ‘‘(i) that the recyclable material

5 would not be recycled,

6 ‘‘(ii) that the recyclable material

7 would be burned as fuel, or for en8 ergy recovery or incineration, or

9 ‘‘(iii) for transactions occurring

10 before 90 days after the date of the

11 enactment of this section, that the

12 consuming facility was not in compli13 ance with a substantive (not a proce14 dural or administrative) provision of

15 any Federal, State, or local environ16 mental law or regulation, or compli17 ance order or decree issued pursuant

18 thereto, applicable to the handling,

19 processing, reclamation, or other

20 management activities associated

21 with the recyclable material; or

22 ‘‘(B) the person added hazardous sub23 stances to the recyclable material for

24 purposes other than processing for recy25 cling; or
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1 ‘‘(C) the person failed to exercise rea2 sonable care with respect to the manage3 ment and handling of the recyclable ma4 terial.

5 ‘‘(2) For purposes of this subsection, an

6 objectively reasonable basis for belief shall be

7 determined using criteria that include (but

8 are not limited to) the size of the person’s

9 business, customary industry practices, the

10 price paid in the recycling transaction, and

11 the ability of the person to detect the nature

12 of the consuming facility’s operations con13 cerning its handling, processing, reclamation

14 or other management activities associated

15 with the recyclable material.

16 ‘‘(3) For purposes of this subsection, a re17 quirement to obtain a permit applicable to

18 the handling, processing, reclamation, or

19 other management activities associated with

20 recyclable material shall be deemed to be a

21 substantive provision.

22 ‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing

23 in this section shall be deemed to affect the

24 liability of a person under paragraph (1) or (2)

25 of section 107(a).
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1 ‘‘(h) PCBS.—An exemption under this sec2 tion does not apply if the recyclable material

3 contained polychlorinated biphenyls in ex4 cess of 50 parts per million or any new stand5 ard promulgated pursuant to applicable Fed6 eral laws.

7 ‘‘(i) REGULATIONS.—The Administrator has

8 the authority, under section 115, to promul9 gate additional regulations concerning this

10 section.

11 ‘‘(j) EFFECT ON PENDING OR CONCLUDED AC12 TIONS.—The exemptions provided in this sec13 tion shall not affect any concluded judicial or

14 administrative action or any pending judicial

15 action initiated by the United States prior to

16 enactment of this section.

17 ‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR

18 CERTAIN ACTIONS.—Any person who com19 mences an action in contribution against a

20 person who is not liable by operation of this

21 section shall be liable to that person for all

22 reasonable costs of defending that action, in23 cluding all reasonable attorney’s and expert

24 witness fees.
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1 ‘‘(l) RELATIONSHIP TO LIABILITY UNDER

2 OTHER LAWS.—Nothing in this section shall af3 fect—

4 ‘‘(1) liability under any other Federal,

5 State, or local statute or regulation pro6 mulgated pursuant to any such statute,

7 including any requirements promulgated

8 by the Administrator under the Solid

9 Waste Disposal Act; or

10 ‘‘(2) the ability of the Administrator

11 to promulgate regulations under any

12 other statute, including the Solid Waste

13 Disposal Act.’’.

14 SEC. 415. RELEASE OF EVIDENCE.

15 (a) TIMELY ACCESS TO INFORMATION FUR16 NISHED UNDER SECTION 104(e).—Section

17 104(e)(8)(A) (as redesignated by section

18 401(b)(1) of this Act) is further amended by in19 serting after ‘‘shall be available to the public’’

20 the following: ‘‘not later than 14 days after the

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

22 (b) REQUIREMENT TO PROVIDE PRPS EVI23 DENCE OF LIABILITY.—(1) Subsection (a) of sec24 tion 106 (42 U.S.C. 9606(a)), as amended by

25 section 402(a) of this Act, is further amended
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1 by adding at the end the following: ‘‘In any

2 case in which the President issues an order

3 to a person under this subsection, the Presi4 dent shall provide information concerning

5 the evidence that indicates that each element

6 of liability contained in section 107(a) is

7 present.’’.

8 (2) Section 122(e)(1) (42 U.S.C. 9622(e)(2))

9 is amended by inserting after subparagraph

10 (C) the following:

11 ‘‘(D) For each potentially respon12 sible party, information concerning

13 the evidence that indicates that each

14 element of liability contained in sec15 tion 107(a) is present.’’.

16 SEC. 416. CONTIGUOUS PROPERTIES.

17 Section 107(a) (42 U.S.C. 9607(a)) is

18 amended by adding at the end the following

19 new paragraph:

20 ‘‘(10) A person who owns or operates

21 real property that is contiguous to or oth22 erwise situated with respect to real prop23 erty on which there has been a release of

24 a hazardous substance and that is or may

25 be contaminated by the release shall not
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1 be considered an owner or operator of a

2 facility under paragraph (1)(A) solely by

3 reason of such contamination if such per4 son establishes by a preponderance of the

5 evidence that—

6 ‘‘(A) such person exercised due

7 care with respect to the hazardous

8 substance, in light of all relevant

9 facts and circumstances;

10 ‘‘(B) such person took precautions

11 against foreseeable acts or omissions

12 that resulted in the release and the

13 consequences that could foreseeably

14 result from such acts or omissions;

15 and

16 ‘‘(C) such person did not cause or

17 contribute to the release.

18 The President may issue assurances of no

19 enforcement action under this Act to

20 such person and may grant such person

21 protection against cost recovery and con22 tribution actions pursuant to section

23 113(f).’’.
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1 TITLE V—REMEDY SELECTION

2 AND CLEANUP STANDARDS

3 SEC. 501. CLEANUP STANDARDS.

4 Section 121(d) (42 U.S.C. 9621(d)) is

5 amended as follows:

6 (1) In paragraph (3), by inserting ‘‘or

7 4010(c) if appropriate’’ after ‘‘3005’’.

8 (2) By redesignating pargraphs (3)

9 and (4) as paragraphs (9) and (10), respec10 tively.

11 (3) By striking out the subsection

12 heading and designation and all that fol13 lows through the end of paragraph (2)

14 and inserting in lieu thereof the follow15 ing:

16 ‘‘(d) ESTABLISHMENT OF PROTECTIVE CON17 CENTRATION LEVELS.—

18 ‘‘(1) NATIONAL GOALS FOR THE PROTEC19 TION OF HUMAN HEALTH AND THE ENVIRON20 MENT.—In order to provide consistent and

21 equivalent protection of human health

22 and the environment to all communities,

23 within 18 months after the enactment of

24 the Superfund Reform Act of 1994, the

25 Administrator shall promulgate national
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1 goals to be applied at all facilities subject

2 to remedial action under this Act. Na3 tional goals for human health shall be ex4 pressed as a single, numerical level for

5 chemical carcinogens and a single, nu6 merical level for noncarcinogens, respec7 tively. The national goals shall provide

8 the basis for protective concentration lev9 els unless the achievement of such goals

10 is technically infeasible or unreasonably

11 costly pursuant to subsection (b). In a

12 case in which the President selects a

13 remedy that does not achieve the na14 tional goals, the President shall publish

15 an explanation of the basis for that deci16 sion. The national goals shall be devel17 oped and promulgated in accordance

18 with sections 561 through 570 of title 5,

19 United States Code (commonly referred

20 to as the ‘Negotiated Rulemaking Act’).

21 ‘‘(2) SCOPE AND PURPOSE OF NATIONAL

22 RISK PROTOCOL.—The Administrator shall

23 promulgate a national risk protocol for

24 conducting risk assessments under this

25 Act. The national risk protocol shall be
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1 used for risk assessments underlying de2 terminations of the need for remedial ac3 tion, the establishment of protective con4 centration levels of chemicals, and the

5 evaluation of remedial alternatives. The

6 goal of the national risk protocol is to

7 promote the use of best available sci8 entific information and promote realistic

9 estimates that neither minimize nor exag10 gerate the risks or potential risks posed

11 by a facility at which hazardous sub12 stances have been disposed of or other13 wise come to be located. The national

14 risk protocol shall be developed and pro15 mulgated in accordance with sections 561

16 through 570 of title 5, United States Code,

17 to the extent the Administrator deems ap18 propriate. The national risk protocol

19 shall establish, to the extent appropriate

20 and practicable, the following:

21 ‘‘(A) Standardized exposure sce22 narios defining exposure pathways

23 for a range of unrestricted and re24 stricted land uses.
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1 ‘‘(B) Standardized formulae or

2 methodologies for—

3 ‘‘(i) evaluating the exposure

4 pathways of concern under the

5 standardized exposure scenarios

6 established under subparagraph

7 (A); and

8 ‘‘(ii) developing, consistent

9 with the national goals under

10 paragraph (1), chemical con11 centration levels protective of re12 ceptors currently and reasonably

13 anticipated to be exposed via the

14 pathways included in such sce15 narios for the 100 contaminants

16 most frequently occurring at fa17 cilities addressed under this Act

18 for which adequate toxicity infor19 mation is available.

20 ‘‘(C) Methodologies for facility21 specific evaluations of ecological

22 risks.

23 ‘‘(3) STANDARDIZED FORMULAE OR METH24 ODOLOGIES.—Standardized formulae or

25 methodologies established under sub-
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1 paragraphs (A) and (B) of paragraph (2)

2 shall include the following:

3 ‘‘(A) National constants for spe4 cific characteristics of individual

5 chemicals not expected to vary from

6 facility to facility.

7 ‘‘(B) Facility-specific variables for

8 physical characteristics of the facility

9 and other factors. Criteria for identi10 fying such variables shall include the

11 following:

12 ‘‘(i) Whether a characteristic

13 or factor can be objectively meas14 ured based on actual facility data

15 or reasonably estimated based on

16 credible scientific studies when

17 facility-measured data cannot be

18 reasonably obtained.

19 ‘‘(ii) Whether the effects of a

20 characteristic or factor are sci21 entifically well-understood.

22 ‘‘(iii) Whether the impact of

23 the characteristic or factor on es24 timations of risk or protective

25 concentration levels is significant.
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1 ‘‘(C) Exposure factors related to

2 demographics (including separate ex3 posure factors for sensitive sub4 populations to be applied where rel5 evant), activity patterns, and natural

6 constraints. Defaults or ranges of de7 fault values shall be established for

8 such factors and used unless verifi9 able data are presented that the de10 faults are significantly different from

11 actual facility conditions. In such

12 cases, the values shall be determined

13 on a site-specific basis after consider14 ation of any views expressed by the

15 Community Working Group, if avail16 able, and the affected community.

17 ‘‘(4) APPLICATION OF NATIONAL RISK

18 PROTOCOL.—(A) The President shall con19 duct an analysis at each facility to deter20 mine which exposure scenarios, path21 ways, and contaminants are relevant to

22 that facility. Where standardized for23 mulae or methodologies for addressing

24 such relevant scenarios, pathways, and
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1 contaminants are available, they shall be

2 used.

3 ‘‘(B) Standardized formulae or meth4 odologies for exposure pathways that do

5 not exist or are not reasonably antici6 pated to exist in the future at a facility

7 shall not be applied in establishing pro8 tective concentration levels for the facil9 ity.

10 ‘‘(C) Where standardized formulae or

11 methodologies for particular exposure

12 scenarios, exposure pathways, or chemi13 cals are unavailable, facility-specific risk

14 assessment shall be used.

15 ‘‘(5) CONSIDERATIONS IN ESTABLISHING

16 THE NATIONAL RISK PROTOCOL.—(A) In de17 veloping the national risk protocol under

18 paragraph (2), the Administrator shall

19 evaluate and, to the degree appropriate

20 and practicable—

21 ‘‘(i) identify appropriate sources

22 of toxicity information;

23 ‘‘(ii) define the use of probabilistic

24 modeling;
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1 ‘‘(iii) identify criteria for the se2 lection and application of transport

3 and fate models;

4 ‘‘(iv) define the use of high end

5 and central tendency exposure cases

6 and assumptions;

7 ‘‘(v) define the use of population

8 risk estimates in addition to individ9 ual risk estimates;

10 ‘‘(vi) define appropriate ap11 proaches for addressing cumulative

12 risks posed by multiple contaminants

13 or multiple exposure pathways; and

14 ‘‘(vii) establish appropriate sam15 pling approaches and data quality re16 quirements.

17 ‘‘(B) The national risk protocol shall

18 establish guidelines for all risk assess19 ments conducted under paragraph (2), in20 cluding those by which protective con21 centration levels are established, which

22 result in final protection at the 90th ex23 posure percentile of the affected popu24 lation defined by the President.
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1 ‘‘(6) PHASING AND UPDATING OF THE NA2 TIONAL RISK PROTOCOL.—The national risk

3 protocol shall be developed in accord4 ance with a schedule promulgated by the

5 Administrator within 90 days after the

6 date of enactment of the Superfund Re7 form Act of 1994. The national risk proto8 col may be developed and promulgated in

9 phases as determined appropriate by the

10 Administrator. The final protocol shall be

11 promulgated within 18 months after the

12 enactment of such Act. The Administrator

13 also shall determine an appropriate ap14 proach and schedule for ensuring that

15 the national risk protocol remains cur16 rent with emerging science and relevant

17 Agency policy.

18 ‘‘(7) FEDERAL AND STATE LAWS.—(A) A

19 remedial action shall be required to—

20 ‘‘(i) comply with the substantive

21 requirements of any promulgated

22 standard, requirement, criterion, or

23 limitation under any Federal, or more

24 stringent State, environmental or fa25 cility siting law that is applicable to
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1 the conduct or operation of the reme2 dial action;

3 ‘‘(ii) attain any promulgated pro4 tective concentration levels applica5 ble to determining the level of clean6 up for remedial actions conducted

7 under any State environmental law

8 where such levels are more stringent

9 than those established under sub10 paragraph (C)(i) or the concentration

11 levels determined to be protective for

12 a given facility in accordance with

13 the requirements of paragraph (2);

14 and

15 ‘‘(iii) comply with or attain any

16 other promulgated standard, require17 ment, criterion, or limitation under

18 any State environmental or facility

19 siting law that the State dem20 onstrates is consistently applied to

21 remedial actions under State law, and

22 that the State determines, through a

23 promulgation process which includes

24 public notice, comment, and written

25 response thereto, and opportunity for
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1 judicial review, apply to remedial ac2 tions under the Act.

3 ‘‘(B) Compliance with any State

4 standard, criterion, requirement, or limi5 tation under subparagraph (A) shall be

6 required at a given facility if it has been

7 identified by the State to the President in

8 a timely manner as applicable at that fa9 cility. In addition, each State shall pub10 lish a comprehensive list of the promul11 gated standards, criteria, requirements,

12 or limitations that the State may apply to

13 remedial actions under this Act and re14 vise such list periodically. The State shall

15 also revise such list as requested by the

16 President.

17 ‘‘(C)(i) A goal of this Act is to restore

18 any contaminated ground water and sur19 face water that may be used for drinking

20 water to—

21 ‘‘(I) the level of any maximum

22 contaminant level or non-zero maxi23 mum contaminant level goal for any

24 hazardous substance, pollutant, or

25 contaminant which has been estab-
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1 lished under title XIV of the Public

2 Health Service Act (the Safe Drinking

3 Water Act), and

4 ‘‘(II) a protective concentration

5 level that attains the goal in para6 graph (1) for any other hazardous

7 substance, pollutant, or contaminant.

8 Each total remedy selected under this Act

9 and each protective concentration level

10 established under this subsection shall

11 achieve this goal in the ground water or

12 surface water unless the President makes

13 a finding which is published with an ex14 planation and appropriate documenta15 tion that the achievement of the goal is

16 technically impracticable from an engi17 neering perspective or, in the case of

18 ground water that meets the require19 ments of subsection (b)(4)(C) and has low

20 levels of contamination relative to such

21 goal, compliance with or attainment of

22 such goal is unreasonably costly. Upon

23 making such a finding, the President

24 shall publish the alternative remedial

25 strategy and its goals.
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1 ‘‘(ii) For the purpose of this section,

2 the phrase ‘ground water that may be

3 used for drinking water’ shall not include

4 ground waters (I) containing more than

5 10,000 milligrams per liter total dissolved

6 solids, (II) that are so contaminated by

7 naturally occurring conditions or by the

8 effects of broad-scale human activity un9 related to a specific activity that restora10 tion of drinking water quality is imprac11 ticable, or (III) the potential source of

12 drinking water is physically incapable of

13 yielding a quantity of 150 gallons per day

14 of water to a well or spring without ad15 verse environmental consequences.

16 ‘‘(iii) Remedial actions for contami17 nated ground water (other than ground

18 water that may be used for drinking

19 water) shall attain levels appropriate for

20 the current or reasonably anticipated fu21 ture use of such ground water, or levels

22 appropriate considering the current use

23 of any ground water or surface water to

24 which such contaminated ground water

25 discharges.
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1 ‘‘(iv) Concentration levels other than

2 those required under clause (i) may be

3 established for ground water that may be

4 used for drinking water in any case in

5 which the following conditions are met:

6 ‘‘(I) The President determines

7 that the use of alternate concentra8 tion levels is appropriate.

9 ‘‘(II) There are known and pro10 jected points of entry of such ground

11 water into surface water.

12 ‘‘(III) On the basis of measure13 ments or projections, there is or will

14 be no increase of such constituents

15 that would pose a threat to human

16 health or the environment from such

17 ground water in such surface water.

18 ‘‘(IV) The remedial action in19 cludes enforceable measures that will

20 preclude human exposure to the con21 taminated ground water within the

22 facility and up to all known and pro23 jected points of entry of such ground

24 water into surface water.
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1 ‘‘(V) Monitoring to ensure attain2 ment of the alternative concentration

3 level is conducted in ground water at

4 a point or points immediately prior to

5 where the ground water enters into

6 surface water. In such cases, the

7 point of human exposure may be as8 sumed to be at such known and pro9 jected points of entry.

10 ‘‘(v) Not later than 18 months after

11 the date of the enactment of the

12 Superfund Reform Act of 1994, after no13 tice and comment, the President shall

14 publish guidance as to determinations of

15 technical impracticability from an engi16 neering perspective to achieve the goal of

17 this subparagraph, for use in the selec18 tion of remedies for contaminated ground

19 water under subsection (b). Such guid20 ance shall identify certain hazardous sub21 stances, pollutants, or contaminants and

22 certain geological or hydrological charac23 teristics of facilities with ground water

24 contamination, or combinations thereof,

25 for which restoration in accordance with
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1 subclauses (I) and (II) of clause (i) may be

2 from an engineering perspective tech3 nically impracticable or technically prac4 ticable. Such guidance shall be taken into

5 consideration under subsection

6 (b)(4)(A)(x) and this subparagraph.

7 ‘‘(vi) The President shall make find8 ings of technical impracticability from an

9 engineering perspective (including find10 ings under this subparagraph or subpara11 graph (E) or subsection (b)(4)(A) on the

12 basis of projections, modeling, measures

13 undertaken under subsection (b)(4)(B), or

14 other analysis on a site specific basis (in15 cluding the consideration of information

16 presented by responsible parties at such

17 facility) without a requirement that the

18 remedial measure for which a finding of

19 technical impracticability is under con20 sideration be first constructed or in21 stalled and operated and its performance

22 over time reviewed, unless such projec23 tion, modeling, measure, or other analy24 sis are insufficient or inadequate to make

25 such a finding.
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1 ‘‘(D) Procedural requirements of Fed2 eral and State standards, requirements,

3 criteria, or limitations, including permit4 ting requirements, shall not apply to re5 sponse actions conducted on-site. Compli6 ance with subparagraph (A) shall not be

7 required with respect to return, replace8 ment, or disposal of contaminated media

9 or residuals of contaminated media into

10 the same medium in or very near existing

11 areas of contamination on-site.

12 ‘‘(E)(i) The President may select a re13 medial action meeting the requirements

14 of paragraph (1) that does not comply

15 with or attain a Federal or State stand16 ard, requirement, criterion, or limitation

17 as required by subparagraphs (A) and

18 (C), if the President finds any of the fol19 lowing:

20 ‘‘(I) The remedial action selected

21 is only part of a total remedial action

22 that will comply with or attain the

23 applicable requirements of subpara24 graphs (A) and (C) of this paragraph

25 when completed.
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1 ‘‘(II) Compliance with or attain2 ment of such requirement at that fa3 cility will result in greater risk to

4 human health and the environment

5 than alternative options.

6 ‘‘(III) Compliance with or attain7 ment of such requirement is tech8 nically impracticable from an engi9 neering perspective.

10 ‘‘(IV) The remedial action selected

11 will attain a standard of performance

12 that is equivalent to that required

13 under a standard, requirement, cri14 terion, or limitation identified under

15 subparagraph (A) through use of an16 other approach.

17 ‘‘(V) With respect to a State stand18 ard, requirement, criterion, or limita19 tion under clauses (i), (ii), and (iii) of

20 subparagraph (A), the State has not

21 consistently applied (or demonstrated

22 the intention to consistently apply)

23 the standard, requirement, criterion,

24 or limitation in similar circumstances
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1 at other remedial actions within the

2 State.

3 ‘‘(VI) In the case of a remedial ac4 tion to be undertaken solely under

5 section 104 using the Fund, a selec6 tion of a remedial action that com7 plies with or attains standards, cri8 teria, requirements, or limitations

9 will not provide a balance between

10 the need for protection of public

11 health and welfare and the environ12 ment at the facility under consider13 ation, and the availability of amounts

14 from the Fund to respond to other fa15 cilities that present or may present a

16 threat to public health or welfare or

17 the environment, taking into consid18 eration the relative immediacy of

19 such threat.

20 ‘‘(ii) The President shall publish

21 any findings made under clause (i),

22 together with an explanation and ap23 propriate documentation.

24 ‘‘(8)(A) Except as provided in subpara25 graph (B), a State standard, requirement, cri-
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1 teria, or limitation (including any State siting

2 standard or requirement) which could effec3 tively result in the statewide prohibition of

4 land disposal of hazardous substances, pollut5 ants, or contaminants shall not apply.

6 ‘‘(B) Any State standard, requirement, cri7 teria, or limitation referred to in subpara8 graph (A) shall apply where each of the fol9 lowing conditions is met:

10 ‘‘(i) The State standard, requirement,

11 criteria, or limitation is of general appli12 cability and was adopted by formal

13 means.

14 ‘‘(ii) The State standard, requirement,

15 criteria, or limitation was adopted on the

16 basis of hydrologic, geologic, or other rel17 evant considerations and was not adopt18 ed for the purpose of precluding onsite

19 remedial actions or other land disposal

20 for reasons unrelated to protection of

21 human health and the environment.

22 ‘‘(iii) The State arranges for, and

23 assures payment of the incremental costs

24 of utilizing, a facility for disposition of
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1 the hazardous substances, pollutants, or

2 contaminants concerned.’’.

3 SEC. 502. REMEDY SELECTION.

4 Section 121(b) (42 U.S.C. 9621(b)) is

5 amended to read as follows:

6 ‘‘(b) GENERAL RULES. —

7 ‘‘(1) SELECTION OF PROTECTIVE REM8 EDIES.—Remedies selected at individual

9 facilities shall be protective of human

10 health and the environment and provide

11 long-term reliability at reasonable cost. A

12 remedial action may achieve protection

13 of human health and the environment

14 through treatment that reduces the tox15 icity, mobility, or volume of hazardous

16 substances, pollutants, or contaminants;

17 containment or other engineering con18 trols to limit exposure; a combination of

19 treatment and containment; or other

20 methods of protection. The method or

21 methods of remediation appropriate for a

22 given facility shall be determined

23 through the evaluation of remedial alter24 natives and the selection process under

25 paragraphs (2) and (3). When determining
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1 the appropriate remedial method, treat2 ment is to be preferred for hot spots as

3 defined under paragraph (3)(B). This

4 preference shall not apply to materials

5 that do not constitute hot spots.

6 ‘‘(2) LAND USE.—(A) In selecting a rem7 edy, the President shall take into account

8 the reasonably anticipated future uses of

9 land at a facility as required by this Act.

10 In identifying reasonably anticipated fu11 ture land uses the President shall con12 sider factors, which generally shall in13 clude the following:

14 ‘‘(i) Any consensus recommenda15 tion of the Community Working

16 Group and any other views expressed

17 by members of the affected commu18 nity. The President shall consider the

19 consensus recommendation of a reuse

20 entity which has been established for

21 a Federal facility scheduled for clo22 sure or realignment instead of any

23 corresponding consensus rec24 ommendation of a Community Work25 ing Group if the reuse entity has been
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1 in existence for a period of at least 1

2 year and has a membership that is

3 representative of the community and

4 that is similar to the membership of a

5 Community Working Group.

6 ‘‘(ii) The land use history of the

7 facility and surrounding properties,

8 the current land uses of the facility

9 and surrounding properties, recent

10 development patterns in the area

11 where the facility is located, and pop12 ulation projections for that area.

13 ‘‘(iii) Federal or State land use

14 designations, including Federal facili15 ties and national parks, State ground

16 water or surface water recharge

17 areas established under a State’s

18 comprehensive protection plan for

19 ground water or surface water, and

20 recreational areas.

21 ‘‘(iv) The current land use zoning

22 and future land use plans of the local

23 government with land use regulatory

24 authority.
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1 ‘‘(v) The potential for economic

2 redevelopment.

3 ‘‘(vi) The proximity of the con4 tamination to residences, sensitive

5 populations or ecosystems, natural

6 resources, or areas of unique historic

7 or cultural significance.

8 ‘‘(vii) Current plans for the facil9 ity by the property owner or owners,

10 not including potential voluntary re11 medial measures.

12 ‘‘(B) In developing its recommenda13 tion, the Community Working Group

14 shall consider factors (ii) through (vii) of

15 subparagraph (A), and the President

16 shall give substantial weight to that rec17 ommendation where consensus is

18 reached, or substantial weight to the

19 views of the affected community where

20 the Community Working Group does not

21 reach consensus in accordance with sec22 tion 117(g).

23 ‘‘(C) All information considered by

24 the President in evaluating reasonably

25 anticipated future land uses under this
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1 paragraph shall be included in the ad2 ministrative record under section 113(k).

3 ‘‘(3) APPROPRIATE REMEDIAL ACTION.—

4 (A) The President shall identify and se5 lect an appropriate remedy that prevents

6 exposures in excess of protective con7 centration levels established under sub8 section (d) by balancing the following fac9 tors:

10 ‘‘(i) The effectiveness of the rem11 edy.

12 ‘‘(ii) The long-term reliability of

13 the remedy, that is, its capability to

14 achieve long-term protection of

15 human health and the environment

16 considering the preference for treat17 ment of hot spots.

18 ‘‘(iii) Any short-term risk posed by

19 the implementation of the remedy to

20 the affected community, to those en21 gaged in the cleanup effort, and to

22 the environment.

23 ‘‘(iv) The acceptability of the rem24 edy to the affected community.
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1 ‘‘(v) The reasonableness of the

2 cost of the remedy.

3 ‘‘(B) HOT SPOTS.—The following shall

4 apply to the remediation of hot spots:

5 ‘‘(i) For purposes of this section,

6 the term ‘hot spot’ means a discrete

7 area within a facility that contains

8 hazardous substances, pollutants or

9 contaminants that are present in high

10 concentrations, are highly mobile, or

11 cannot be reliably contained, that

12 would present a significant risk to

13 human health or the environment

14 should exposure occur. The President

15 shall develop guidelines for the iden16 tification of hot spots. Such guide17 lines shall recommend appropriate

18 field investigations that will not re19 quire extraordinarily complex or

20 costly measures.

21 ‘‘(ii) In determining an appro22 priate remedy for hot spots, the

23 President shall consider the factors

24 under subparagraph (A). With respect

25 to the factor in clause (v), the Presi-
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1 dent shall use a higher threshold for

2 evaluating the reasonableness of

3 costs for hot spot treatment relative

4 to the remediation of non-hot spot

5 materials.

6 ‘‘(iii) The President shall select a

7 remedy requiring treatment of mate8 rials constituting hot spots unless an

9 appropriate treatment technology is

10 unavailable or is available only at un11 reasonable cost. In such instances,

12 the President shall select an interim

13 containment remedy for such hot

14 spot subject to adequate monitoring

15 and public reporting to ensure its

16 continued integrity and shall review

17 the interim containment remedy in

18 accordance with subsection (c). When

19 the appropriate treatment technology

20 becomes available, as determined by

21 the President, that remedy shall be

22 considered in accordance with this

23 section.

24 ‘‘(iv) Notwithstanding the pres25 ence of a hot spot, the President may
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1 select a final containment remedy for

2 hot spots at landfills and mining sites

3 or similar facilities under the follow4 ing circumstances:

5 ‘‘(I) The hot spot is small rel6 ative to the overall volume of

7 waste or contamination being ad8 dressed, the hot spot is not read9 ily identifiable and accessible,

10 and without the presence of the

11 hot spot containment would have

12 been selected as the appropriate

13 remedy under subparagraph (A)

14 for the larger body of waste or

15 area of contamination in which

16 the hot spot is located.

17 ‘‘(II) The volume and areal ex18 tent of the hot spot is extraor19 dinary compared to other facili20 ties, and it is highly unlikely due

21 to the size and other characteris22 tics of the hot spot that any treat23 ment technology will be devel24 oped that could be implemented

25 at reasonable cost.
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1 Where final containment for a hot spot is

2 selected, the President shall publish an

3 explanation of the basis for that decision.

4 ‘‘(4) SELECTION OF RESPONSE ACTIONS

5 FOR GROUND WATER CONTAMINATION.—

6 ‘‘(A) FACTORS.—The President

7 shall identify and select an appro8 priate remedy for contaminated

9 ground water that achieves protec10 tion of human health and the envi11 ronment pursuant to subsection (d)(1)

12 and the goal as determined pursuant

13 to subsection (d)(7)(C) by taking into

14 consideration the following factors:

15 ‘‘(i) The effectiveness of the

16 remedy in achieving the goal

17 under subsections (d)(1) and

18 (d)(7)(C).

19 ‘‘(ii) The long-term reliability

20 of the remedy, that is, its capabil21 ity to achieve long-term protec22 tion of human health and the en23 vironment.

24 ‘‘(iii) Any short-term risk

25 posed by the implementation of
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1 the remedy to the affected com2 munity, to those engaged in the

3 cleanup effort, and to the envi4 ronment.

5 ‘‘(iv) The acceptability of the

6 remedy to the affected commu7 nity.

8 ‘‘(v) The urgency of the need

9 for the ground water.

10 ‘‘(vi) The reasonableness of

11 the cost of the remedy.

12 ‘‘(vii) The timing of the imple13 mentation of any such remedy or

14 potential achievement of such

15 goal in relation to the timing of

16 the use of such ground water.

17 ‘‘(viii) The ability of such rem18 edy to prevent human exposure to

19 such contaminated water.

20 ‘‘(ix) The ability of such rem21 edy to achieve the goal of restora22 tion.

23 ‘‘(x) The technical practicabil24 ity of the remedy (including any
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1 determinations as provided in

2 subsection (d)(7)(C)).

3 ‘‘(B) EARLY EVALUATION AND RE4 SPONSE MEASURES.—(i) To facilitate ef5 ficient and effective site characteriza6 tion that promotes early evaluation of

7 remedial alternatives and to prevent

8 the ground water contamination

9 problems from worsening, the Presi10 dent shall ensure, to the extent prac11 ticable, that hydrogeologic and con12 taminant-related information nec13 essary to select final ground water re14 medial actions, including findings of

15 technical impracticability, shall be

16 collected as part of site characteriza17 tion activities prior to and including

18 the remedial investigation. Such data

19 shall include information from re20 sponse actions under clause (ii).

21 ‘‘(ii) To facilitate efficient and ef22 fective site characterization that pro23 motes early evaluation of remedial al24 ternatives and to prevent the ground

25 water contamination problems from
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1 worsening, the President shall, as ap2 propriate, consistent with the factors

3 in subparagraph (A), and to the ex4 tent technically practicable from an

5 engineering perspective, implement

6 early response measures to minimize

7 further contaminant migration and

8 reduce the risk of exposure to con9 taminated ground water. Such meas10 ures may include containment of the

11 leading edge of the plume to prevent

12 further contamination of unaffected

13 portions of an aquifer, removal of

14 source material, remediation of high15 ly contaminated ground water, and

16 installation of physical barriers or

17 caps to contain releases from source

18 materials. Such measures shall be

19 monitored to collect detailed informa20 tion on site characterization and po21 tential remedial alternatives.

22 ‘‘(C) MINIMUM REQUIREMENTS.—

23 Subject to subsection (d)(7)(C), any

24 remedy for contaminated ground

25 water that may be used for drinking
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1 water selected under this paragraph

2 shall—

3 ‘‘(i) prevent or eliminate any

4 actual human exposure through

5 drinking water to any hazardous

6 substance, pollutant or contami7 nant at levels in excess of the

8 maximum contaminant level or

9 non-zero maximum contaminant

10 level goal established under title

11 XIV of the Public Health Service

12 Act (the Safe Drinking Water Act)

13 including, as appropriate, the

14 provision of an alternate water

15 supply;

16 ‘‘(ii) unless technically im17 practicable from an engineering

18 perspective, prevent impairment

19 of any surface water designated

20 use established under section 303

21 of the Federal Water Pollution

22 Control Act caused by such haz23 ardous substance, pollutant, or

24 contaminant in any surface water

25 body into which such contami-
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1 nated ground water is known or

2 projected to enter;

3 ‘‘(iii) assure that concentrated

4 areas of hazardous substances,

5 pollutants, or contaminants in the

6 ground water, including any

7 known source area within such

8 ground water, shall be contained

9 to the extent technically feasible

10 and to the extent technically

11 practicable from an engineering

12 perspective, and consistent with

13 effective containment, such haz14 ardous substance, pollutants, or

15 contaminants shall be treated;

16 ‘‘(iv) assure that unless tech17 nically impracticable from an en18 gineering perspective the spatial

19 extent of such contamination

20 shall not be allowed to increase

21 beyond that detected or known at

22 the time of the selection of reme23 dial action, except as provided in

24 subsection (d)(7)(C)(iv); and
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1 ‘‘(v) provide for long-term

2 monitoring of such ground water,

3 as appropriate (including any in4 formation needed for the pur5 poses of review under subsection

6 (c)).

7 ‘‘(D) PERIODIC REVIEW.—Each re8 medial action conducted pursuant to

9 subsection (d)(7)(E)(i)(III) shall be re10 viewed no less often than every 5

11 years as provided in subsection (c). If

12 the President determines that charac13 teristics at the facility have changed

14 or that remedial alternatives have be15 come available to attain the goal of

16 subsection (d)(7)(C), the President

17 shall select a new remedy in accord18 ance with this section.

19 ‘‘(5) GENERIC REMEDIES.—In order to

20 streamline the remedy selection process

21 and to facilitate rapid voluntary action,

22 the President shall establish, taking into

23 account the factors enumerated in para24 graph (3)(A), cost-effective generic rem25 edies for categories of facilities, and ex-
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1 pedited procedures that include commu2 nity involvement for selecting generic

3 remedies at an individual facility. To be

4 eligible for selection at a facility, a ge5 neric remedy shall be protective of

6 human health and the environment at

7 that facility. In appropriate cases, the

8 President may select a generic remedy

9 without considering alternatives to the

10 generic remedy.

11 ‘‘(6) INSTITUTIONAL CONTROLS.—When12 ever the President selects a remedial ac13 tion which relies on restrictions on the

14 use of land, water, or other resources to

15 achieve protection of human health and

16 the environment, the President shall

17 specify the nature of the restrictions re18 quired to achieve such protections, in19 cluding restrictions on the permissible

20 uses of land, prohibitions on specified ac21 tivities upon the property, restrictions on

22 the drilling of wells or the use of ground

23 water, or restrictions on the use of sur24 face water, and ensure that such restric25 tions are incorporated into a hazardous
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1 substance easement, as provided by sec2 tion 104(k). In reviewing remedial action

3 alternatives which would require the use

4 of such restrictions and providing oppor5 tunity for public comment on those alter6 natives, the President shall identify the

7 nature of any institutional controls that

8 would be required to implement such re9 strictions, known or anticipated affected

10 persons, the likely duration of such re11 strictions, and the anticipated costs for

12 acquiring hazardous substance ease13 ments and enforcing the appropriate re14 strictions.’’.

15 SEC. 503. MISCELLANEOUS AMENDMENTS TO SECTION 121.

16 (a) REVIEW.—Section 121(c) (42 U.S.C.

17 9621(c)) is amended—

18 (1) in the first sentence, by striking

19 out ‘‘initiation’’ and inserting in lieu

20 thereof ‘‘completion of all physical on-site

21 construction,’’;

22 (2) in the second sentence, by insert23 ing ‘‘(1)’’ after ‘‘it is the judgment of the

24 President that’’; and
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1 (3) in the second sentence, by insert2 ing after ‘‘section 104 or 106,’’ the follow3 ing: ‘‘or (2) an interim containment rem4 edy was selected for such site and an ap5 propriate final remedial action is avail6 able under subsection (b)(3)(B)(iii) and

7 appropriate to select in accordance with

8 subsection (b)(3)(A) of this section,’’.

9 (b) Section 121(e)(1) (42 U.S.C. 9621(e)(1))

10 is amended by adding at the end thereof the

11 following: ‘‘Furthermore, no Federal, State, or

12 local permit or permit application shall be re13 quired for on-site or off-site activities con14 ducted under section 311(b).’’.

15 SEC. 504. RESPONSE AUTHORITIES.

16 (a) STUDIES AND INVESTIGATIONS.—Section

17 104(b)(1) (42 U.S.C. 9604(b)(1)) is amended in

18 the second sentence by striking ‘‘studies’’ and

19 all that follows through the end of the sen20 tence and inserting in lieu thereof the follow21 ing: ‘‘actions, studies, or investigations as he

22 may deem necessary or appropriate to plan

23 and direct response actions or to enforce the

24 provisions of this Act and shall be entitled to

25 recover the costs thereof.’’.
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1 (b) DISPOSAL AUTHORITY.—Section 104(j)

2 (42 U.S.C. 9604(j)) is amended—

3 (1) in paragraph (1), by striking ‘‘re4 medial’’ in the first sentence and insert5 ing ‘‘response’’;

6 (2) by striking paragraph (2);

7 (3) by redesignating paragraph (3) as

8 paragraph (2) and in that paragraph by

9 striking ‘‘estate’’ and inserting ‘‘prop10 erty’’; and

11 (4) by inserting after paragraph (2)

12 (as redesignated) the following new para13 graph:

14 ‘‘(3) DISPOSAL AUTHORITY.—The Presi15 dent is authorized to dispose of any inter16 est in real property acquired for use by

17 the Administrator under this subsection

18 by sale, exchange, donation, or otherwise

19 and any such interest in real property

20 shall not be subject to any of the provi21 sions of section 120 except the notice pro22 visions of section 120(h)(1). Any moneys

23 received by the President pursuant to

24 this paragraph shall be deposited in the

25 Fund.’’.
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1 (c) PRIVATE PARTY REMOVAL LIMITATIONS.—

2 Section 104(a)(2) (42 U.S.C. 9604(a)(2)) is

3 amended by adding at the end the following:

4 ‘‘In any case in which implementation of a re5 moval action is expected to obviate or in fact

6 does obviate the need to conduct a long-term

7 remedial action, such removal action must—

8 ‘‘(A) comply with the protective

9 concentration levels and other stand10 ards in subsections (b) and (d) of sec11 tion 121; and

12 ‘‘(B) allow for public participation

13 in accordance with seciton 117 to the

14 maximum extent practicable.’’.

15 SEC. 505. REMOVAL ACTIONS.

16 (a) OBLIGATIONS FROM FUND.—Section

17 104(c)(1) (42 U.S.C. 9604(c)(1)) is amended—

18 (1) by striking ‘‘consistent with the

19 remedial action to be taken’’ and insert20 ing ‘‘not inconsistent with any remedial

21 action that has been selected or is antici22 pated at the time of the removal action,’’;

23 (2) by striking ‘‘$2,000,000’’ and insert24 ing ‘‘$4,000,000’’; and
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1 (3) by striking ‘‘12 months’’ and in2 serting ‘‘two years’’.

3 (b) NON-EMERGENCY REMOVALS.—Section

4 120(e) (42 U.S.C. 9620(e)) is amended by add5 ing at the end the following new paragraph:

6 ‘‘(7) NOTIFICATION OF AND CONCUR7 RENCE FROM EPA OR STATE FOR NON-EMER8 GENCY REMOVAL ACTIONS.—(A) Before the

9 commencement of any non-emergency re10 moval action by a department, agency, or

11 instrumentality of the United States, such

12 department, agency, or instrumentality

13 shall—

14 ‘‘(i) notify the Environmental Pro15 tection Agency and the State of the

16 planned removal action; and

17 ‘‘(ii) obtain, in the case of facili18 ties which are listed or proposed for

19 listing on the National Priorities List,

20 concurrence in the planned removal

21 action from the Environmental Pro22 tection Agency or the State, as appli23 cable.

24 ‘‘(B) The lack of concurrence under

25 clause (ii) shall not delay the commence-
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1 ment of the remedial investigation and

2 feasibility study in accordance with the

3 time requriements of this section. The

4 requriements of this paragraph relating

5 to notification and concurrence shall not

6 affect, alter, or supplant, directly or indi7 rectly, the applicability of any State law

8 to the removal action concerned. Within

9 a reasonable period of time after any

10 emergency removal action is carried out

11 by a department, agency, or instrumen12 tality of the United States, the depart13 ment, agency, or instrumentality shall no14 tify the Environmental Protection Agency

15 or the State, as appropriate, of the re16 moval action.’’.

17 SEC. 506. HAZARDOUS SUBSTANCE PROPERTY USE.

18 Section 104 (42 U.S.C. 9604) is amended by

19 adding at the end the following:

20 ‘‘(k) HAZARDOUS SUBSTANCE PROPERTY

21 USE.—

22 ‘‘(1) AUTHORITY OF PRESIDENT TO AC23 QUIRE EASEMENTS.—In order to prevent

24 exposure to, reduce the likelihood of, or

25 otherwise respond to a release or threat-
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1 ened release of a hazardous substance,

2 pollutant, or contaminant, the President

3 may acquire, at fair market value for the

4 interest acquired, a hazardous substance

5 easement which restricts, limits, or con6 trols the use of land or other natural re7 sources, including specifying permissible

8 or impermissible uses of land, prohibiting

9 specified activities upon property, pro10 hibiting the drilling of wells or use of

11 ground water, or restricting the use of

12 surface water.

13 ‘‘(2) USE OF EASEMENTS.—A hazardous

14 substance easement and notice of a prop15 erty use restriction under this subsection

16 shall be used wherever institutional con17 trols have been selected as a component

18 of a removal or remedial action in ac19 cordance with this Act and the National

20 Contingency Plan. Such easements and

21 notices shall not be used in cases in

22 which institutional controls are not re23 lied upon in a removal or remedial ac24 tion. Whenever such controls are selected

25 as a component of a removal or remedial
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1 action, the President shall ensure that

2 the terms of the controls and the ease3 ment are specified in all appropriate de4 cision documents, enforcement orders,

5 and public information regarding the

6 site.

7 ‘‘(3) PERSONS SUBJECT TO EASEMENTS.—

8 A hazardous substance easement shall be

9 enforceable in perpetuity (unless termi10 nated and released as provided for in this

11 section) against any owner of the affected

12 property and all persons who subse13 quently acquire interest in the property

14 or rights to use the property, including

15 lessees, licensees, and any other person

16 with an interest in the property, without

17 respect to privity or lack of privity of es18 tate or contract, lack of benefit running

19 to any other property, assignment of the

20 easement to another party, or any other

21 circumstance which might otherwise af22 fect the enforceability of easements or

23 similar deed restrictions under the laws

24 of the State. The easement shall be bind25 ing upon holders of any other interests in
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1 the property regardless of whether such

2 interests are recorded or whether they

3 were recorded prior or subsequent to the

4 easement, and shall remain in effect not5 withstanding any foreclosure or other as6 sertion of such interests.

7 ‘‘(4) CONTENTS OF EASEMENTS.—A haz8 ardous substance easement shall contain,

9 at a minimum—

10 ‘‘(A) a legal description of the

11 property affected;

12 ‘‘(B) the name or names of any

13 current owner or owners of the prop14 erty as reflected in public land

15 records;

16 ‘‘(C) a description of the release

17 or threatened release; and

18 ‘‘(D) a statement as to the nature

19 of the restriction, limitation, or con20 trol created by the easement.

21 ‘‘(5) USE RESTRICTION NOTICE.—When22 ever the President acquires a hazardous

23 substance easement or assigns a hazard24 ous substance easement to another party,

25 the President shall record a notice of
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1 property use restriction in the public

2 land records for the jurisdiction in which

3 the affected property is located. Such a

4 notice shall specify restrictions, limita5 tions, or controls on the use of land or

6 other natural resources provided for in

7 the hazardous substance easement. Fail8 ure to record such a notice shall not re9 lieve the affected persons from the re10 quirements of the easement.

11 ‘‘(6) FILING OF NOTICE.—Wherever re12 cording in the public land records is re13 quired under this subsection, the Presi14 dent shall file the notice or other instru15 ment in the appropriate office within the

16 State (or governmental subdivision) in

17 which the affected property is located, as

18 designated by State law. If the State has

19 not by law designated one office for the

20 recording of interests in real property or

21 claims or rights burdening real property,

22 the document or notice shall be filed in

23 the office of the clerk of the United

24 States district court for the district in

25 which the affected property is located.
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1 ‘‘(7) METHODS OF ACQUIRING EASE2 MENTS.—The President may acquire a

3 hazardous substance easement by pur4 chase or other agreement, by condemna5 tion, or by any other means permitted by

6 law. Compensation for such easement

7 shall be at fair market value for the inter8 est acquired. The costs of obtaining such

9 easements, ensuring adequate public no10 tice of such easements, and otherwise

11 tracking and maintaining the protections

12 afforded by the easements shall be con13 sidered response costs which are recover14 able under this Act.

15 ‘‘(8) ASSIGNMENT OF EASEMENTS TO PAR16 TIES OTHER THAN THE PRESIDENT.—

17 ‘‘(A) AUTHORITY TO ASSIGN.—The

18 President may assign an easement ac19 quired under this subsection to a

20 State or other governmental entity

21 that has the capability of effectively

22 enforcing the easement over the pe23 riod of time necessary to achieve the

24 purposes of the easement. In the case

25 of any assignment, the easement shall
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1 be fully enforceable by the assignee.

2 Any assignment of such an easement

3 by the President may be made by fol4 lowing the same procedures as are

5 used for the transfer of an interest in

6 real property to a State under section

7 104(j).

8 ‘‘(B) EFFECT OF ASSIGNMENT.—Any

9 interest in property granted to a

10 State or other governmental entity

11 which restricts, limits, or controls the

12 use of land or other natural resources

13 in order to prevent exposure to, re14 duce the likelihood of, or otherwise

15 respond to, a release or threatened

16 release of a hazardous substance, pol17 lutant, or contaminant, and which is

18 expressly designated in writing as a

19 hazardous substance easement within

20 the meaning of this paragraph, shall

21 create the same rights, have the same

22 legal effect, and be enforceable in the

23 same manner as a hazardous sub24 stance easement acquired by the

25 President regardless of whether the
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1 interest in property is otherwise de2 nominated as an easement, covenant,

3 or any other form of property right.

4 ‘‘(9) PUBLIC NOTICE.—Not later than

5 180 days after the date of the enactment

6 of this subsection, the President shall

7 issue regulations regarding the proce8 dures to be used for public notice of pro9 posed property use restrictions. Such reg10 ulations shall ensure that before acquir11 ing a hazardous substance easement, and

12 before recording any notice of such ease13 ment, the President will give notice and

14 an opportunity to comment to the owner

15 of the affected property, all other persons

16 with recorded interests in the property,

17 any lessees or other authorized occu18 pants of the property known to the Presi19 dent, the State and any municipalities in

20 which the property is located, any rel21 evant community work group established

22 under section 117, the affected commu23 nity, and the general public.

24 ‘‘(10) TERMINATION OF EASEMENTS.—An

25 easement acquired under this subsection
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1 shall remain in force until the holder of

2 the easement executes and records a ter3 mination and release in accordance with

4 the terms of the easement and approved

5 by the Administrator of the Environ6 mental Protection Agency or the relevant

7 assignee. Such termination shall be re8 corded in the same manner as the ease9 ment.

10 ‘‘(11) ENFORCEMENT.—

11 ‘‘(A) EFFECT OF VIOLATIONS.—Viola12 tion of any restriction, limitation, or

13 control imposed under a hazardous

14 substance easement shall have the

15 same effect as failure to comply with

16 an order issued under section 106 and

17 relief may be sought in the same man18 ner and to the same extent, including

19 penalties, as for failure to comply

20 with such an order. Such relief may

21 be sought either in enforcement ac22 tions under section 106 or in citizens

23 suits under section 310. No citizens

24 suit under section 310 to enforce such

25 a notice may be commenced if the
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1 holder of the easement has com2 menced and is diligently prosecuting

3 an action in court to enforce the ease4 ment.

5 ‘‘(B) ENFORCEMENT ACTIONS.—The

6 President shall take appropriate en7 forcement actions to ensure compli8 ance with the terms of the easement

9 whenever the Administrator of the

10 Environmental Protection Agency de11 termines that the terms set forth in

12 the easement are being violated. If

13 the easement has been assigned to a

14 party other than the President and

15 that party has not taken appropriate

16 enforcement actions, the President

17 shall notify the party of the violation.

18 If the party does not take appropriate

19 enforcement actions within 30 days of

20 such notification, or sooner in the

21 case of an imminent hazard, the

22 President shall initiate such enforce23 ment actions.

24 ‘‘(12) APPLICABILITY OF OTHER PROVI25 SIONS.—Holding a hazardous substance
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1 easement shall not subject either the

2 holder thereof or the owner of the af3 fected property to liability under section

4 107. Any such easement acquired by the

5 President shall not be subject to the re6 quirements of section 104(j) or 120(h).’’.

7 SEC. 507. TRANSITION.

8 (a) EFFECTIVE DATE.—This title, and the

9 amendments made by this title, shall become

10 effective 180 days after the date of enactment

11 of this Act. Remedies selected under the Com12 prehensive Environmental Response, Com13 pensation, and Liability Act of 1980 following

14 that effective date shall be selected as pro15 vided in section 121(b) of that Act (as amend16 ed by this Act) and subject to the Federal and

17 State requirements specified in section

18 121(d)(7) of that Act (as amended by this Act).

19 (b) CONTINUED EFFECTIVENESS OF REGULA20 TIONS AND GUIDANCE.—Until promulgation of

21 the national goals and the national risk proto22 col under section 121(d), the President may

23 continue to rely on current regulations and

24 guidance with regard to acceptable risk levels

25 and the conduct of risk assessments.
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1 (c) PRIOR RODS.—(1) Nothing in this Act

2 shall place upon the President an obligation

3 to reopen a record of decision signed prior to

4 the effective date of this title.

5 (2) If, pursuant to section 117 of the Com6 prehensive Environmental Response, Com7 pensation, and Liability Act of 1980, the Presi8 dent determines that a change to a record of

9 decision signed prior to the effective date of

10 this title is necessary, the President may

11 apply the rules in effect at the time the origi12 nal record of decision was signed.

13 TITLE VI—MISCELLANEOUS

14 SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNER15 SHIP AND MIXED RESPONSIBILITY FACILI16 TIES.

17 Section 120(e) (42 U.S.C. 9620(e)) is amend18 ed—

19 (1) by inserting at the end of para20 graph (4) the following new subpara21 graph:

22 ‘‘(D) A provision allowing for the

23 participation of other responsible

24 parties (if any) in the response ac25 tion.’’; and
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1 (2) by inserting after paragraph (7)

2 the following new paragraphs:

3 ‘‘(8) EXCEPTION TO REQUIRED ACTION.—

4 (A) A department, agency, or instrumen5 tality of the United States that owns or

6 operates a facility over which the depart7 ment, agency, or instrumentality exer8 cised no regulatory or other control over

9 activities that directly or indirectly re10 sulted in a release or threat of a release

11 of a hazardous substance shall be subject

12 to the requirements of paragraphs (1)

13 through (6), other than subparagraphs

14 (F) and (G) of paragraph (5), unless and

15 to the extent the department, agency, or

16 instrumentality demonstrates to the sat17 isfaction of the Administrator that—

18 ‘‘(i) no department, agency, or in19 strumentality was the primary or sole

20 source or cause of a release or threat

21 of release of a hazardous substance at

22 the facility;

23 ‘‘(ii) the activities either directly

24 or indirectly resulting in a release or

25 threat of a release of a hazardous
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1 substance at the facility were pursu2 ant to a statutory authority and oc3 curred before 1976; and

4 ‘‘(iii) the person or persons pri5 marily or solely responsible for such

6 release or threat of release are finan7 cially viable and are capable of per8 forming or financing all or a portion

9 of the response action at the facility.

10 ‘‘(B) If the conditions listed in clauses

11 (i) through (iii) of subparagraph (A) are

12 not met, the applicable terms of this sub13 section apply to the department, agency,

14 or instrumentality of the United States at

15 the facility. Upon determination by the

16 Administrator that a department, agency,

17 or instrumentality qualifies for the excep18 tion provided by this paragraph, the head

19 of such department, agency, or instru20 mentality may exercise enforcement au21 thority under section 106. To the extent a

22 person who has been issued an order

23 under the authority of this paragraph

24 seeks reimbursement under the provi25 sions of section 106, the relevant depart-
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1 ment, agency, or instrumentality, and not

2 the Fund, shall be the source of any ap3 propriate reimbursement. If the relevant

4 department, agency, or instrumentality

5 has failed to obtain the performance of

6 response actions by responsible parties

7 pursuant to an order or consent decree

8 within 12 months after the facility has

9 been listed on the National Priorities

10 List, the exception provided by this para11 graph shall be void and the department,

12 agency, or instrumentality shall, in con13 sultation with the Administrator and ap14 propriate State authorities, commence a

15 remedial investigation and feasibility

16 study for such facility within six months

17 after the expiration of the 12-month pe18 riod.

19 ‘‘(9) An interagency agreement under

20 this section shall in no way impair or di21 minish the obligation of any department,

22 agency, or instrumentality of the United

23 States to comply with requirements of ap24 plicable law, unless such requirements

25 have been specifically—
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1 ‘‘(A) addressed; or

2 ‘‘(B) waived;

3 without objection from the State prior to

4 or at the time the response action is se5 lected pursuant to section 121.’’.

6 SEC. 602. CONTENTS OF CERTAIN DEEDS.

7 Section 120(h)(3) (42 U.S.C. 9620(h)(3)) is

8 amended in the matter following subpara9 graph (C) by inserting after ‘‘the Adminis10 trator’’ both places it appears the following:

11 ‘‘or, in the case of real property that is not

12 part of a facility on the National Priorities

13 List, to the Governor of the affected State’’.

14 SEC. 603. TRANSFERS OF UNCONTAMINATED PROPERTY.

15 Section 120(h)(4)(A) (42 U.S.C.

16 9620(h)(4)(A)) is amended by striking ‘‘stored

17 for one year or more,’’ in the first sentence.

18 SEC. 604. AGREEMENTS TO TRANSFER BY DEED.

19 Section 120(h) (42 U.S.C. 9620(h)) is

20 amended by adding after paragraph (5) the

21 following new paragraph:

22 ‘‘(6) AGREEMENTS TO TRANSFER BY

23 DEED.—Nothing in this subsection shall

24 be construed to prohibit the head of the

25 department, agency, or instrumentality of
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1 the United States from entering into an

2 agreement to transfer by deed real prop3 erty or facilities prior to the entering of

4 such deed.’’.

5 SEC. 605. ALTERNATIVE OR INNOVATIVE TREATMENT

6 TECHNOLOGIES.

7 Section 111(a) is amended by adding after

8 paragraph (6) the following new paragraph:

9 ‘‘(7) ALTERNATIVE OR INNOVATIVE

10 TREATMENT TECHNOLOGIES.—Payment of

11 no more than 50 percent of response

12 costs incurred by a potentially liable

13 party in taking actions approved by the

14 Administrator to achieve required levels

15 of response under this Act after employ16 ing an alternative or innovative tech17 nology that fails to achieve a level of re18 sponse required under this Act pursuant

19 to an administrative order or consent de20 cree. The Administrator shall issue guid21 ance on the procedures for the appro22 priate level of funding for response ac23 tivities using alternative innovative tech24 nologies as defined in section 311(b)(10)

25 that are necessary to achieve a level of
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1 response required under this Act. The

2 Administrator shall review and update

3 such guidance, as appropriate.’’.

4 SEC. 606. DEFINITIONS.

5 Section 101 (42 U.S.C. 9601) is amended as

6 follows:

7 (1) Paragraph (10)(H) is amended by

8 striking ‘‘subject to’’ and inserting ‘‘in

9 compliance with’’.

10 (2) Paragraph (14) is amended by add11 ing at the end the following: ‘‘The term

12 includes methane, but only when a re13 sponse action undertaken to address a re14 lease or threat of release of a hazardous

15 substance (as otherwise defined in this

16 paragraph) at a landfill or similar site

17 also addresses methane.’’.

18 (3) Paragraph (20) is amended—

19 (A) in subparagraph (A), by in20 serting ‘‘the United States or’’ after

21 ‘‘similar means to’’;

22 (B) in subparagraph (D)—

23 (i) in the first sentence by in24 serting ‘‘the United States or’’

25 after ‘‘does not include’’;
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1 (ii) in the second sentence, by

2 inserting ‘‘any department, agen3 cy, or instrumentality of the Unit4 ed States or’’ before ‘‘any State’’;

5 and

6 (iii) in the second sentence, by

7 striking ‘‘a’’ after ‘‘such’’ and in8 serting ‘‘department, agency, or

9 instrumentality of the United

10 States or’’; and

11 (C) by adding after subparagraph

12 (D) the following new subparagraphs:

13 ‘‘(E)(i) The term ‘owner or operator’

14 includes a trust or estate or a person who

15 holds title to a vessel or facility, or other16 wise is affiliated with the vessel or facil17 ity solely in a fiduciary capacity. Subject

18 to clauses (ii) and (iii), a fiduciary hold19 ing such title or having such affiliation

20 shall be personally subject to the obliga21 tions and liabilities of an owner or opera22 tor to the same extent as if the vessel or

23 facility were held by the fiduciary free of

24 trust.
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1 ‘‘(ii) The personal obligations and li2 abilities of a fidicuary referred to in

3 clause (i) shall be limited to the extent to

4 which the assets of the trust or estate are

5 sufficient to indemnify the fiduciary, un6 less—

7 ‘‘(I) the obligations and liabilities

8 would have arisen even if the person

9 had not served as fiduciary;

10 ‘‘(II) the fiduciary’s own failure to

11 exercise due care with respect to a

12 vessel or facility caused or contrib13 uted to the release of hazardous sub14 stances following establishment of

15 the trust, estate, or fiduciary relation16 ship;

17 ‘‘(III) the fiduciary had a role in

18 establishing the trust, estate, or fidu19 ciary relationship, and such trust, es20 tate, or fiduciary relationship has no

21 objectively reasonable or substantial

22 purpose apart from the avoidance or

23 limitation of liability under this Act;

24 or
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1 ‘‘(IV) the fiduciary has not com2 plied with such other requirements

3 as the Administrator may set forth by

4 regulation.

5 ‘‘(iii) A fiduciary shall not be person6 ally liable for undertaking or directing

7 another to undertake a response action

8 under section 107(d)(1).

9 ‘‘(F) The term ‘owner or operator’

10 shall not include the United States or any

11 department, agency, or instrumentality of

12 the United States or a conservator or re13 ceiver appointed by a department, agen14 cy, or instrumentality of the United

15 States if the United States or the con16 servator or receiver meets both of the fol17 lowing conditions:

18 ‘‘(i) The United States, conserva19 tor, or receiver acquired ownership

20 or control of a vessel or facility (or

21 any right or interest therein)—

22 ‘‘(I) in connection with the ex23 ercise of receivership or

24 conservatorship authority or the

25 liquidation or winding up of the
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1 affairs of any entity subject to a

2 receivership or conservatorship,

3 including any subsidiary thereof;

4 and

5 ‘‘(II) in connection with the

6 exercise of any seizure or forfeit7 ure authority.

8 ‘‘(ii) The United States, conserva9 tor, or receiver does not participate

10 in the management of the vessel or

11 facility operations that result in a re12 lease or threat of release of hazard13 ous substances and complies with

14 such other requirements as the Ad15 ministrator may set forth by regula16 tion.’’.

17 (4) Paragraph (23) (relating to the

18 terms ‘‘remove’’ and ‘‘removal’’) is amend19 ed—

20 (A) in the first sentence—

21 (i) by striking ‘‘terms’’ and in22 serting ‘‘term’’;

23 (ii) by striking ‘‘necessary’’

24 the first place it appears and in25 serting ‘‘necessarily’’; and
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1 (iii) by inserting after ‘‘envi2 ronment, such actions’’ the phrase

3 ‘‘or combination of such actions’’;

4 (B) in the second sentence by

5 striking ‘‘term includes’’ and insert6 ing ‘‘terms include’’; and

7 (C) by adding at the end the fol8 lowing: ‘‘The term ‘remove’ or ‘re9 moval’ is not limited to emergency

10 situations and includes actions to ad11 dress future or potential exposures.’’.

12 (5) Paragraph (25) (relating to the

13 terms ‘‘respond’’ and ‘‘response’’) is

14 amended—

15 (A) by striking ‘‘terms’’ and insert16 ing ‘‘term’’;

17 (B) by striking the comma after

18 ‘‘remedial action;’’; and

19 (C) by striking ‘‘related thereto’’

20 and inserting ‘‘(including attorneys’

21 fees and expert witness fees) and

22 oversight activities related thereto

23 when such activities are undertaken

24 by the President’’.
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1 (6) Paragraph (29) (relating to the

2 terms ‘‘disposal’’, ‘‘hazardous waste’’, and

3 ‘‘treatment’’) is amended by inserting be4 fore the period the following: ‘‘, except

5 that the term ‘hazardous substance’ shall

6 be substituted for the term ‘hazardous

7 waste’ in the definitions of ‘disposal’ and

8 ‘treatment’ ’’.

9 (7) Paragraph (33) (relating to the

10 term ‘‘pollutant or contaminant’’) is

11 amended by striking ‘‘; except that the’’

12 and inserting ‘‘. The’’.

13 (8) Paragraph (35) (relating to the

14 term ‘‘contractual relationship’’) is

15 amended—

16 (A) in subparagraph (A)—

17 (i) by striking out clause (iii);

18 and

19 (ii) in the matter preceding

20 clause (i), by striking out ‘‘clause

21 (i), (ii), or (iii)’’ and inserting

22 ‘‘clause (i) or (ii)’’;

23 (B) by amending subparagraph

24 (B) to read as follows:
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1 ‘‘(B)(i) To establish that the defendant

2 had no reason to know, as provided in

3 clause (i) of subparagraph (A) of this

4 paragraph, the defendant must have un5 dertaken, at the time of the acquisition,

6 all appropriate inquiry into the previous

7 ownership and uses of the facility and its

8 real property in accordance with gen9 erally accepted good commercial and cus10 tomary standards and practices. For the

11 purposes of the preceding sentence and

12 until the Administrator issues or des13 ignates standards and practices as pro14 vided in clause (ii) of this subparagraph,

15 the court shall take into account any spe16 cialized knowledge or experience on the

17 part of the defendant, the relationship of

18 the purchase price to the value of the

19 property if uncontaminated, commonly

20 known or reasonably ascertainable infor21 mation about the property, the obvious22 ness of the presence or likely presence of

23 contamination at the property, and the

24 ability to detect such contamination by

25 appropriate investigation.
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1 ‘‘(ii) The Administrator may, by regu2 lation, promulgate standards and prac3 tices or, by regulation, designate stand4 ards and practices promulgated or devel5 oped by others, that satisfy the require6 ments of this subparagraph. In issuing or

7 designating such standards and prac8 tices, the Administrator shall consider

9 factors for the inquiry, including the fol10 lowing:

11 ‘‘(I) Conduct of the inquiry by an

12 environmental professional.

13 ‘‘(II) Inclusion of interviews with

14 past and present owners, operators,

15 and occupants of the facility and its

16 real property for the purpose of gath17 ering information regarding the po18 tential for contamination at the facil19 ity and its real property.

20 ‘‘(III) Inclusion of a review of his21 torical sources, such as chain of title

22 documents, aerial photographs, build23 ing department records, and land use

24 records, to determine previous uses
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1 and occupancies of the real property

2 since it was first developed.

3 ‘‘(IV) Inclusion of a search for re4 corded environmental cleanup liens,

5 filed under Federal, State, or local

6 law, against the facility or its real

7 property.

8 ‘‘(V) Inclusion of a review of Fed9 eral, State, and local government

10 records, such as waste disposal

11 records; underground storage tank

12 records; and hazardous waste han13 dling, generation, treatment, disposal,

14 and spill records, concerning con15 tamination at or near the facility or

16 its real property.

17 ‘‘(VI) Inclusion of a visual inspec18 tion of the facility and its real prop19 erty and of adjoining properties.

20 ‘‘(VII) Any specialized knowledge

21 or experience on the part of the de22 fendant.

23 ‘‘(VIII) The relationship of the

24 purchase price to the value of the

25 property if uncontaminated.
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1 ‘‘(IX) Commonly known or reason2 ably ascertainable information about

3 the property.

4 ‘‘(X) The obviousness of the pres5 ence or likely presence of contamina6 tion at the property, and the ability

7 to detect such contamination by ap8 propriate investigation

9 ‘‘(iii) In the case of property for resi10 dential use or other similar use, pur11 chased by a nongovernmental or non12 commercial entity, a site inspection and

13 title search that reveal no basis for fur14 ther investigation satisfy the require15 ments of this subparagraph.’’; and

16 (C) By adding the following new

17 subparagraph at the end thereof:

18 ‘‘(E) The term ‘contractual relation19 ship’ shall not include the initial filing by

20 a claimant of an unpatented mining claim

21 or the issuance of a patent for any such

22 claim.’’.

23 (9) The following new paragraphs are

24 added after paragraph (38):
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1 ‘‘(39) BONA FIDE PROSPECTIVE PUR2 CHASER.—The term ‘bona fide prospective

3 purchaser’ means a person who acquires

4 ownership of a facility after the date of

5 enactment of the Superfund Reform Act

6 of 1994, or a tenant of such a person, who

7 can establish each of the following by a

8 preponderance of the evidence:

9 ‘‘(A) All active disposal of hazard10 ous substances at the facility oc11 curred before that person acquired

12 the facility.

13 ‘‘(B) The person made all appro14 priate inquiry into the previous own15 ership and uses of the facility and its

16 real property in accordance with gen17 erally accepted good commercial and

18 customary standards and practices.

19 The regulations promulgated by the

20 Administrator pursuant to paragraph

21 (35)(B)(ii) shall satisfy the require22 ments of this subparagraph. In the

23 case of property for residential or

24 other similar use, purchased by a

25 nongovernmental or noncommercial
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1 entity, a site inspection and title

2 search that reveal no basis for fur3 ther investigation satisfy the require4 ments of this subparagraph.

5 ‘‘(C) The person provided all le6 gally required notices with respect to

7 the discovery or release of any haz8 ardous substances at the facility.

9 ‘‘(D) The person exercised appro10 priate care with respect to hazardous

11 substances found at the facility by

12 taking reasonable steps to stop on13 going releases, prevent threatened fu14 ture releases of hazardous sub15 stances, and prevent or limit human

16 or natural resource exposure to haz17 ardous substances previously re18 leased into the environment.

19 ‘‘(E) The person provides full co20 operation, assistance, and facility ac21 cess to persons authorized to conduct

22 response actions at the facility, in23 cluding the cooperation and access

24 necessary for the installation, integ25 rity, operation, and maintenance of
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1 any complete or partial response ac2 tion at the facility.

3 ‘‘(F) The person is not affiliated

4 with any other person liable for re5 sponse costs at the facility, through

6 any direct or indirect familial rela7 tionship, or any contractual, cor8 porate, or financial relationship other

9 than that created by the instruments

10 by which title to the facility is con11 veyed or financed.

12 ‘‘(40) FIDUCIARY.—

13 ‘‘(A) Except as provided in sub14 paragraph (B), the term ‘fiduciary’

15 means a person who owns or controls

16 property—

17 ‘‘(i) as a fiduciary within the

18 meaning of section 3(31) of the

19 Employee Retirement Income Se20 curity Act of 1974, or as a trustee,

21 executor, administrator, custo22 dian, guardian, conservator, or

23 receiver acting for the exclusive

24 benefit of another person; and
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1 ‘‘(ii) who has not previously

2 owned or operated the property

3 in a non-fiduciary capacity.

4 ‘‘(B) The term ‘fiduciary’ does not

5 include any person described in sub6 paragraph (A)—

7 ‘‘(i) who acquires ownership

8 or control of property to avoid

9 the liability of such person or any

10 other person under this Act; or

11 ‘‘(ii) who owns or controls

12 property on behalf of or for the

13 benefit of a holder of a security

14 interest.

15 ‘‘(41) MUNICIPAL SOLID WASTE.—The

16 term ‘municipal solid waste’ means all

17 waste materials generated by households,

18 including single and multi-family resi19 dences, and hotels and motels. The term

20 also includes waste materials generated

21 by commercial, institutional, and indus22 trial sources, to the extent such wastes

23 (A) are essentially the same as waste nor24 mally generated by households, or (B) are

25 collected and disposed of with other mu-
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1 nicipal solid waste or sewage sludge as

2 part of normal municipal solid waste col3 lection services, and, regardless of when

4 generated, would be considered condi5 tionally exempt small quantity generator

6 waste under section 3001(d) of the Solid

7 Waste Disposal Act (42 U.S.C. 6921(d)).

8 Examples of municipal solid waste in9 clude food and yard waste, paper, cloth10 ing, appliances, consumer product pack11 aging, disposable diapers, office supplies,

12 cosmetics, glass and metal food contain13 ers, elementary or secondary school

14 science laboratory waste, and household

15 hazardous waste. The term does not in16 clude combustion ash generated by re17 source recovery facilities or municipal in18 cinerators, or waste from manufacturing

19 or processing (including pollution con20 trol) operations not essentially the same

21 as waste normally generated by house22 holds.

23 ‘‘(42) MUNICIPALITY.—The term ‘mu24 nicipality’ means a political subdivision

25 of a State, including a city, county, vil-
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1 lage, town, township, borough, parish,

2 school district, sanitation district, water

3 district, or other public entity performing

4 local governmental functions. The term

5 also includes a natural person acting in

6 the capacity of an official, employee, or

7 agent of any entity referred to in the pre8 ceding sentence in the performance of

9 governmental functions.

10 ‘‘(43) QUALIFIED HOUSEHOLD HAZARD11 OUS WASTE COLLECTION PROGRAM.—The

12 term ‘qualified household hazardous

13 waste collection program’ means a pro14 gram established by an entity of the Fed15 eral Government, a State, a municipality,

16 or an Indian tribe that provides, at a

17 minimum, for semiannual collection of

18 household hazardous wastes at acces19 sible, well-publicized collection points

20 within the relevant jurisdiction.

21 ‘‘(44) SEWAGE SLUDGE.—The term ‘sew22 age sludge’ means solid, semisolid, or liq23 uid residue removed during the treat24 ment of municipal waste water, domestic

25 sewage, or other waste water at or by
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1 publicly owned or federally owned treat2 ment works.

3 ‘‘(45) SITE CHARACTERIZATION.—The

4 term ‘site characterization’ means an in5 vestigation that determines the nature

6 and extent of a release or potential re7 lease of a hazardous substance, pollutant,

8 or contaminant, and that includes an on

9 site evaluation and sufficient testing,

10 sampling, and other field data gathering

11 activities to analyze whether there has

12 been a release or threat of a release of a

13 hazardous substance, pollutant, or con14 taminant, and the health and environ15 mental risks posed by such a release or

16 threat of release. The investigation also

17 may include review of existing informa18 tion (available at the time of the review),

19 an off-site evaluation, or other measures

20 that the Administrator considers appro21 priate.

22 ‘‘(46) OWNER, OPERATOR, OR LESSEE OF

23 RESIDENTIAL PROPERTY.—The term ‘owner,

24 operator, or lessee of residential prop25 erty’ refers to a person who owns, oper-
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1 ates, manages, or leases residential prop2 erty and who uses or allows the use of

3 the residential property exclusively for

4 residential purposes. The term ‘residen5 tial property’ refers to single or multi6 family residences, including accessory

7 land, buildings, or improvements inciden8 tal to such dwellings, which are exclu9 sively for residential use.

10 ‘‘(47) SMALL BUSINESS.—The term

11 ‘small business’ refers to any business en12 tity that employs no more than 100 indi13 viduals and is a ‘small business concern’

14 as defined under the Small Business Act

15 (15 U.S.C. 631 et seq.).

16 ‘‘(48) SMALL NONPROFIT ORGANIZA17 TION.—The term ‘small nonprofit organi18 zation’ means any organization that, at

19 the time of disposal, did not distribute

20 any part of its income or profit to its

21 members, directors, or officers, employed

22 no more than 100 paid individuals at the

23 involved chapter, office, or department,

24 and was recognized as a non-profit orga-
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1 nization under section 501(c) of the Inter2 nal Revenue Code of 1986.

3 ‘‘(49) SMALL BUSINESS CONSTRUCTION

4 CONTRACTOR.—The term ‘small business

5 construction contractor’ means a person

6 who—

7 ‘‘(A) is a small business as defined

8 by paragraph (47);

9 ‘‘(B) is not a response action con10 tractor, as defined by section

11 119(e)(2), for the release or threat12 ened release concerned;

13 ‘‘(C) did not know or have reason

14 to know of the presence of hazardous

15 substances at the facility before be16 ginning construction activities; and

17 ‘‘(D) exercised due care with re18 spect to any hazardous substances

19 discovered during the course of per20 forming construction activities.’’.

21 SEC. 607. RESPONSE CLAIMS PROCEDURES.

22 (a) AMENDMENT OF SECTION 111.—Section

23 111(a)(2) (42 U.S.C. 9611(a)(2)) is amended by

24 inserting after ‘‘under said plan’’ the phrase

25 ‘‘, reasonable in amount based on open and
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1 free competition or fair market value for simi2 lar available goods and services,’’.

3 (b) AMENDMENT OF SECTION 112.—Section

4 112(a) (42 U.S.C. 9612(a)(2)) is amended—

5 (1) in the first sentence, by adding

6 after ‘‘unless such claim is’’ the following:

7 ‘‘(1) accompanied by an audit prepared

8 by an independent, certified public ac9 countant, and (2)’’; and

10 (2) by inserting after the first sen11 tence the following: ‘‘The Administrator

12 reserves the right to review such audits

13 to determine that the costs for which the

14 claimant is seeking reimbursement are

15 consistent with section 111(a) and, where

16 necessary, withhold claims or a portion

17 thereof which are inconsistent with sec18 tion 111(a).’’.

19 SEC. 608. SMALL BUSINESS OMBUDSMAN.

20 The Administrator of the Environmental

21 Protection Agency shall establish a small

22 business Superfund assistance section within

23 the small business ombudsman office at the

24 Environmental Protection Agency. Such sec25 tion shall carry out the following functions:
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1 (1) Act as a clearinghouse of informa2 tion for small businesses regarding the

3 Comprehensive Environmental Response,

4 Compensation, and Liability Act of 1980.

5 Such information shall be comprehen6 sible to a lay person and shall include in7 formation regarding the allocation proc8 ess under section 130 of such Act, re9 quirements and procedures for expedited

10 settlements pursuant to section 122(g) of

11 such Act, de minimis and de micromis

12 status, and ability-to-pay procedures.

13 (2) Provide general advice and assist14 ance to small businesses as to their ques15 tions and problems concerning the alloca16 tion and settlement processes, except

17 that such advice and assistance shall not

18 include any legal advice as to liability or

19 any other legal representation. The om20 budsman shall not participate in the allo21 cation process.

22 (3) Develop proposals and make rec23 ommendations for changes in policies

24 and activities of the Environmental Pro25 tection Agency which would better fulfill
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1 the goals of title IV of the Superfund Re2 form Act of 1994 in ensuring equitable,

3 simplified, and expedited allocations and

4 settlements for small businesses.

5 SEC. 609. CONSIDERATION OF LOCAL GOVERNMENT

6 CLEANUP PRIORITIES.

7 Section 104(c)(2) is amended—

8 (1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and

9 (2) by adding at the end the following

10 new subparagraph:

11 ‘‘(B) In setting priorities for scheduling

12 work and allocating oversight resources for a

13 remedial action at a facility at which a poten14 tially responsible party that is a State or local

15 government proposes to carry out the reme16 dial action (or a portion thereof), the Adminis17 trator should give higher priority to such re18 medial action (or portion thereof) if the State

19 or local government demonstrates that the re20 medial action (i) will have a public benefit;

21 and (ii) will result in the property on or adja22 cent to the facility being returned to produc23 tive use. A private potentially responsible

24 party may request similar consideration, in

25 the Administrator’s discretion. Nothing in
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1 this subparagraph shall affect the responsibil2 ity of the Administrator to schedule and over3 see the conduct of remedial action so as to as4 sure protection of human health and the envi5 ronment.’’.

6 SEC. 610. CONSISTENT APPLICATION AMONG REGIONAL

7 OFFICES.

8 Section 115 (42 U.S.C. 9615), as amended

9 by section 407, is further amended as follows:

10 (1) By inserting the following imme11 diately before ‘‘The President’’: ‘‘(a) PRESI12 DENTIAL RULEMAKING AND DELEGATION AU13 THORITY.—’’.

14 (2) By inserting at the end thereof the

15 following new subsection:

16 ‘‘(b) CONSISTENT APPLICATION AMONG RE17 GIONAL OFFICES.—Each Regional Adminis18 trator should implement, execute, and enforce

19 this Act and regulations, guidance, and poli20 cies established in accordance with this Act

21 by (1) the President (or by the Administrator

22 pursuant to a delegation from the President),

23 or (2) the Administrator (or by the Deputy Ad24 ministrator or an Assistant Administrator
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1 pursuant to a delegation from the Adminis2 trator).’’.

3 SEC. 611. STUDY OF PARTICIPANTS.

4 (a) STUDY.—The Administrator shall un5 dertake a study of current Environmental

6 Protection Agency procedures for suspension

7 and debarment of persons and business enti8 ties, particularly response action contractors

9 and to assess the feasibility and cost of creat10 ing a nationwide data base to track such per11 sons. The study shall include, but shall not be

12 limited, to the following items:

13 (1) Whether the certification process

14 pursuant to 40 CFR 32 regarding debar15 ment and suspensions is sufficient to un16 cover those persons who have previously

17 served as a principal of a business entity

18 affiliated or unaffiliated with the certify19 ing entity.

20 (2) Whether the 3-year period for cer21 tification is a sufficient length of time to

22 uncover past activities.

23 (3) Whether the process under Fed24 eral regulations for determining false

25 certification is sufficient, particularly for
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1 those persons who are attempting to hide

2 past debarment or suspension.

3 (4) The effectiveness of the current

4 debarment and suspension procedures.

5 (5) The practicability of coordination,

6 through a central data base, with other

7 Federal agencies the tracking and shar8 ing of data on such persons who have

9 been debarred or suspended.

10 (6) The effectiveness of debarment

11 and suspension on the future conduct of

12 persons or business entities with regard

13 to compliance with Federal and State en14 vironmental laws.

15 (7) The extent of sharing data within

16 the Environmental Protection Agency

17 and among its regional offices.

18 (8) The cost of creating a central data

19 base.

20 (b) REPORT AND RECOMMENDATIONS.—The

21 Administrator shall report the findings of this

22 study to Congress within 12 months after the

23 enactment of this Act. The Administrator

24 shall also make a recommendation to Con25 gress whether statutory language or further
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1 regulations are necessary to correct any prob2 lems or deficiencies that may be uncovered.

3 SEC. 612. PUBLIC COMMENT.

4 Nothing in this Act or any amendments

5 made by this Act shall limit the obligations of

6 the President or the Administrator to fully

7 consider and respond to public comments

8 during any available comment period or oth9 erwise abridge the requirements of sub10 chapter II of chapter 5 of title 5, United States

11 Code (commonly referred to as the Adminis12 trative Procedures Act).

13 SEC. 613. CERTIFICATION OF ENVIRONMENTAL TRAINING

14 AND CERTIFICATION ORGANIZATIONS.

15 (a) REGULATIONS.—(1) Not later than 2

16 years after enactment of this Act, the Admin17 istrator of the Environmental Protection

18 Agency shall publish guidelines, in accord19 ance with subsection (b), for a model State

20 program for organizations that train and cer21 tify individuals to perform Phase I Environ22 mental Site Assessments.

23 (2) The guidelines published under para24 graph (1) may include, but not be limited to,

25 minimum standards relating to—
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1 (A) formal environmental training;

2 (B) continuing environmental edu3 cation;

4 (C) environmental certification and

5 testing procedures;

6 (D) revocation and disciplinary pro7 cedures;

8 (E) establishment of a code of ethics;

9 (F) consumer education;

10 (G) certification renewal procedures;

11 and

12 (H) annual reporting of program ac13 tivities.

14 (b) ESTABLISHMENT OF THE ENVIRONMENTAL

15 CERTIFICATION BOARD.—(1) Not later than 60

16 days after enactment of this Act, the Adminis17 trator of the Environmental Protection Agen18 cy shall establish a certification advisory

19 board to be known as the ‘‘Environmental

20 Certification Board’’ (hereafter in this section

21 referred to as the ‘‘Board’’).

22 (2) The Board shall consist of a minimum

23 of 6 members, appointed by the Adminis24 trator, with a demonstrated knowledge in the

25 environmental field. The Board may include
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1 representatives from the Environmental Pro2 tection Agency, environmental interest orga3 nizations, the chemical/manufacturing indus4 try, the environmental consulting service in5 dustry, the insurance industry, the banking/

6 investment industry, professional societies,

7 private sector accreditation organizations,

8 State government, and other appropriate rep9 resentatives with a knowledge in the environ10 mental field.

11 (3) All members of the Board shall serve

12 on a voluntary basis, except those members

13 from the Environmental Protection Agency.

14 (4) The Board shall appoint 1 member to

15 serve as Chairman of the Board who shall ex16 ercise the executive and administrative func17 tions of the Board.

18 (5) Not later than 6 months after the date

19 of enactment of this Act, the Board shall issue

20 recommendations to the Administrator which

21 shall include, but not be limited to, the mini22 mum standards to be established under sub23 section (a).

24 (c) STATE ADOPTION OF REGULATIONS.—(1)

25 After the publication of the guidelines under
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1 subsection (a), any State may adopt regula2 tions identical (except as provided in para3 graph (2) of this subsection) to the guidelines

4 promulgated by the Administrator under sub5 section (a)(1).

6 (2) Nothing in this section shall be con7 strued to preempt any State from issuing and

8 enforcing, at any time, additional or more

9 stringent guidelines and regulations regard10 ing the training and certification of Phase I

11 environmental professionals.

12 (3) Nothing in this section shall be con13 strued to require a profession or occupation

14 licensed by a State authority and whose scope

15 of practice, as defined by State law, includes

16 Phase I Environmental Site Assessments to

17 obtain certification as a ‘‘certified Phase I En18 vironmental Site Professional’’ as a condition

19 for performing Phase I Environmental Site

20 Assessments.

21 (4) Nothing in this section shall be con22 strued to permit a certified Phase I Environ23 mental Professional to practice within the

24 scope of practice of a licensed profession or

25 occupation, as defined by State law, unless
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1 that individual also meets the requirements

2 of the State licensing statute.

3 (d) DETERMINATION OF COMPLIANCE.—(1) If

4 a State adopts the guidelines issued by the

5 Administrator, any organization that seeks to

6 obtain a determination of compliance with

7 the regulations set forth in subsection (c) may

8 submit to any such State, in which the organi9 zation is located, information documenting

10 such compliance.

11 (2) Such State shall make the determina12 tion of such organization’s compliance or non13 compliance with such regulations.

14 (3) Upon a determination of compliance

15 under paragraph (2), the State shall issue no16 tice in writing to such organization, indicat17 ing that such organization is an ‘‘Approved

18 Phase I Environmental Training and Certifi19 cation Organization’’ in accordance with this

20 Act. Such approval shall be valid for a term

21 to be set by the State, but no longer than 5

22 years.

23 (4) A State may charge a reasonable fee,

24 equal to the cost of determining compliance

25 under paragraph (2), to each organization
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1 that applies for such determination. Any such

2 fees shall be listed as part of the regulations

3 promulgated under subsection (c).

4 (5) Any organization that has received no5 tice of a determination of compliance from a

6 State under paragraph (3), may issue a di7 ploma, certification, or other form of degree,

8 to any individual who has completed to its

9 satisfaction such organization’s curriculum

10 and training program signifying that the re11 cipient is a ‘‘Certified Phase I Environmental

12 Professional’’ qualified to perform Phase I En13 vironmental Site Assessments.

14 (6) A State may periodically, or upon expi15 ration of a notification of a determination of

16 compliance under paragraph (3), review the

17 program, curriculum, facilities, and training

18 methods of any such organization to deter19 mine such organizations continued compli20 ance with the regulations promulgated under

21 subsection (c).

22 (e) DEFINITIONS.—For purposes of this sec23 tion:

24 (1) PHASE I ENVIRONMENTAL SITE AS25 SESSMENT.—The term ‘‘Phase I Environ-
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1 mental Site Assessment’’ means the proc2 ess by which a person or entity seeks to

3 determine whether a particular parcel of

4 real property is subject to recognized en5 vironmental conditions. These conditions

6 indicate the presence or likely presence

7 of a hazardous substance or pollutant or

8 contaminant on a property under condi9 tions that indicate the existence of a re10 lease or threatened release at the facility

11 into structures on the property or into

12 the ground, ground water or surface

13 water of the property.

14 (2) CERTIFIED PHASE I ENVIRONMENTAL

15 PROFESSIONAL.—The term ‘‘Certified

16 Phase I Environmental Professional’’

17 means any person receiving certification

18 to perform Phase I Environmental Site

19 Assessments from an approved environ20 mental training and certification organi21 zation in accordance with this section.

22 (3) APPROVED PHASE I ENVIRONMENTAL

23 TRAINING AND CERTIFICATION ORGANIZA24 TION.—The term ‘‘Approved Phase I Envi25 ronmental Training and Certification Or-
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1 ganization’’ means Phase I Environ2 mental Training and Certification Orga3 nization whose curriculum, program, fa4 cilities, training, and testing methods

5 comply with the regulations adopted by a

6 State under this section.

7 SEC. 614. SAVINGS CLAUSE.

8 Nothing in this Act or any amendment

9 made by this Act shall affect the application

10 of the Atomic Energy Act of 1954 to any facil11 ity licensed by the Nuclear Regulatory Com12 mission.

13 SEC. 615. FEDERAL ENTITIES AND FACILITIES.

14 Section 120 (42 U.S.C. 9620) is amended as

15 follows:

16 (1) By amending the heading to read

17 as follows:

18 ‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’.

19 (2) By amending paragraph (1) of sub20 section (a) to read as follows:

21 ‘‘(1)(A) Each department, agency, and

22 instrumentality of the executive, legisla23 tive, and judicial branches of the United

24 States shall be subject to, and comply

25 with, all Federal, State, interstate and
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1 local requirements, both substantive and

2 procedural (including any requirements

3 for permits, reporting, or any provisions

4 for injunctive relief and such sanctions

5 as may be imposed by a court to enforce

6 such relief), regarding response actions

7 related to, or management of, hazardous

8 substances, pollutants, or contaminants

9 in the same manner, and to the same ex10 tent, as any nongovernmental entity is

11 subject to such requirements, including

12 enforcement and liability under sections

13 106 and 107 of this title and the payment

14 of reasonable service charges.

15 ‘‘(B) The Federal, State, interstate,

16 and local substantive and procedural re17 quirements referred to in subparagraph

18 (A) include, but are not limited to, all ad19 ministrative orders and all civil and ad20 ministrative penalties and fines, regard21 less of whether such penalties and fines

22 are punitive or coercive in nature or are

23 imposed for isolated, intermittent, or con24 tinuing violations. The United States

25 hereby expressly waives any immunity
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1 otherwise applicable to the United States

2 with respect to any such substantive or

3 procedural requirement (including, but

4 not limited to, any injunctive relief, ad5 ministrative order or civil or administra6 tive penalty or fine referred to in the pre7 ceding sentence, or reasonable service

8 charge).

9 ‘‘(C) The reasonable service charges

10 referred to in this paragraph include, but

11 are not limited to, fees or charges as12 sessed in connection with the processing

13 and issuance of permits, renewal of per14 mits, amendments to permits, review of

15 plans, studies, and other documents, and

16 inspection and monitoring of facilities, as

17 well as any other nondiscriminatory

18 charges that are assessed in connection

19 with a State, interstate, or local response

20 program.

21 ‘‘(D) Neither the United States, nor

22 any agent, employee, or officer thereof,

23 shall be immune or exempt from any

24 process or sanction of any State or Fed-
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1 eral court with respect to the enforce2 ment of any injunctive relief.

3 ‘‘(E) No agent, employee, or officer of

4 the United States shall be personally lia5 ble for any civil penalty under any Fed6 eral or State response law with respect to

7 any act or omission within the scope of

8 their official duties. An agent, employee,

9 or officer of the United States shall be

10 subject to any criminal sanction (includ11 ing, but not limited to, any fine or impris12 onment) under any Federal or State re13 sponse law, but no department, agency,

14 or instrumentality of the executive, legis15 lative, or judicial branch of the United

16 States shall be subject to any such sanc17 tions.

18 ‘‘(F) The waiver of sovereign immu19 nity provided in this paragraph shall not

20 apply to the extent a State law would

21 apply any standard or requirement to

22 such Federal department, agency, or in23 strumentality in a manner which is more

24 stringent than such standard or require-
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1 ment would be applied to any other per2 son.

3 ‘‘(G) Nothing in this section shall be

4 construed to affect the liability of any

5 person or entity other than a department,

6 agency, or instrumentality of the United

7 States under sections 9606 and 9607 of

8 this title.

9 ‘‘(H)(i) The Administrator may issue

10 an order under section 106 of this Act to

11 any department, agency, or instrumental12 ity of the executive, legislative, or judi13 cial branch of the United States. The Ad14 ministrator shall initiate an administra15 tive enforcement action against such a

16 department, agency, or instrumentality

17 in the same manner and under the same

18 circumstances as action would be initi19 ated against any other person.

20 ‘‘(ii) No administrative order issued

21 to such department, agency, or instru22 mentality shall become final until such

23 department, agency, or instrumentality

24 has had the opportunity to confer with

25 the Administrator.
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1 ‘‘(iii) Unless a State law in effect on

2 the effective date of the Superfund Re3 form Act of 1994, or a State Constitution,

4 requires the funds to be used in a dif5 ferent manner, all funds collected by a

6 State from the Federal Government from

7 penalties and fines imposed for violation

8 of any substantive or procedural require9 ment referred to in subsection (a) of this

10 section shall be used by the State only for

11 projects designed to improve or protect

12 the environment or to defray the costs of

13 environmental protection or enforce14 ment.

15 ‘‘(I) Each such department, agency,

16 and instrumentality shall have the right

17 to contribution protection set forth in

18 section 113, when such department, agen19 cy, or instrumentality resolves its liabil20 ity under this Act.’’.

21 (3) By striking paragraph (4) of sub22 section (a).

23 (4) By inserting ‘‘(other than the in24 demnification requirements of section
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1 119)’’ after ‘‘responsibility’’ in subsection

2 (a)(3).

3 SEC. 616. WORKER TRAINING AND EDUCATION GRANTS.

4 Section 111(c)(12) (42 U.S.C. 9611(c)(12)) is

5 amended—

6 (1) by striking ‘‘$10,000,000’’ and in7 serting ‘‘$20,000,000’’; and

8 (2) by inserting before the period at

9 the end ‘‘and $40,000,000 for each of fiscal

10 years 1995, 1996, 1997, 1998, and 1999’’.

11 SEC. 617. REPORT AND OVERSIGHT REQUIREMENTS.

12 (a) SUBMISSION TO STATE GOVERNORS.—Sec13 tion 301(h)(1) (42 U.S.C. 9651(h)(1)) is amend14 ed in the matter preceding subparagraph (A)

15 by striking ‘‘to Congress of such Agency’’ and

16 inserting ‘‘of such Agency to Congress and the

17 Governor of each State’’.

18 (b) SITE-SPECIFIC PROGRESS REPORT.—Sec19 tion 301(h)(1)(A) is amended to read as fol20 lows:

21 ‘‘(A) A site-specific progress re22 port of accomplishments and expend23 itures on a State-by-State basis, in24 cluding—
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1 ‘‘(i) a statement of the number

2 of completed record of decisions,

3 removal actions, remedial actions,

4 and enforcement actions; and

5 ‘‘(ii) a statement of—

6 ‘‘(I) the aggregate amount

7 expended in each State;

8 ‘‘(II) the amount expended

9 in each State for site inves10 tigation and cleanup activi11 ties;

12 ‘‘(III) the amount ex13 pended in each State for non

14 site-specific costs; and

15 ‘‘(IV) the amount ex16 pended for enforcement ac17 tions and cost recovery activi18 ties.’’.

19 (c) OTHER REPORT CONTENTS.—Section

20 301(h)(1) is amended—

21 (1) in subparagraph (B) by striking

22 the period at the end and inserting ‘‘and

23 removal or remedial action.’’; and
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1 (2) in subparagraph (C) by inserting

2 ‘‘, removal action, and remedial action’’

3 after ‘‘study’’.

4 (d) RESPONSE TO STATE COMMENTS BY

5 EPA.—Section 301(h) is amended by adding at

6 the end the following:

7 ‘‘(4) RESPONSE TO STATE COMMENTS BY

8 EPA.—The Administrator of the Environ9 mental Protection Agency shall respond

10 in writing to any comments submitted to

11 the Administrator by a State regarding

12 reports developed under this sub13 section.’’.

14 SEC. 618. REMEDIAL TECHNOLOGIES.

15 Section 311 (42 U.S.C. 9660) is amended by

16 adding at the end the following:

17 ‘‘(h) REMEDIAL TECHNOLOGIES.—

18 ‘‘(1) REPORT.—Not later than 180 days

19 after the date of the enactment of this

20 subsection, the Administrator shall pub21 lish a report which—

22 ‘‘(A) identifies and prioritizes ex23 isting remedial technology dem24 onstration and development pro25 grams conducted by the Adminis-
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1 trator, the States, and Federal agen2 cies, including the Department of En3 ergy and the Department of Defense;

4 and

5 ‘‘(B) identifies and prioritizes re6 medial technology needs at National

7 Priority List, non-National Priority

8 List, and Federal facility sites.

9 ‘‘(2) STATE INVOLVEMENT.—In prepar10 ing the report pursuant to paragraph (1),

11 the Administrator shall solicit State in12 volvement.’’.

13 SEC. 619. ADDITION OF STATES TO GOVERNMENTAL ENTI14 TIES ELIGIBLE FOR REIMBURSEMENT FOR

15 EMERGENCY REMOVAL ACTIONS; CLARIFICA16 TION OF AUTHORITY TO TAKE EMERGENCY

17 RESPONSE ACTION AT ILLICIT DRUG LAB18 ORATORIES.

19 (a) AMENDMENT OF SECTION 123.—Section

20 123 (42 U.S.C. 9623) is amended to read as fol21 lows:

22 ‘‘SEC. 123. REIMBURSEMENT TO STATE AND LOCAL GOV23 ERNMENTS.

24 ‘‘(a) APPLICATION.—Any State or general

25 purpose unit of local government for a politi-
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1 cal subdivision of a State that is affected by

2 a release or threatened release at any facility

3 may apply to the President for reimburse4 ment under this section.

5 ‘‘(b) REIMBURSEMENT.—

6 ‘‘(1) EMERGENCY RESPONSE ACTIONS.—

7 The President is authorized to reimburse

8 States and local community authorities

9 for expenses incurred (before or after the

10 enactment of the Superfund Reform Act

11 of 1994) in carrying out emergency re12 sponse actions necessary to prevent or

13 mitigate injury to human health or the

14 environment associated with the release

15 or threatened release of any hazardous

16 substance or pollutant or contaminant.

17 Such actions may include, where appro18 priate, security fencing to limit access,

19 cleanup of illicit drug laboratories, re20 sponse to fires and explosions, and other

21 measures that require immediate re22 sponse at the State or local level.

23 ‘‘(2) STATE OR LOCAL FUNDS NOT SUP24 PLANTED.—Reimbursement under this sec-
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1 tion shall not supplant State or local

2 funds normally provided for response.

3 ‘‘(c) AMOUNT.—(1) The amount of any reim4 bursement to a local authority under sub5 section (b)(1) may not exceed $25,000 for a sin6 gle response. The reimbursement under this

7 section with respect to a single facility shall

8 be limited to the units of local government

9 having jurisdiction over the political subdivi10 sion in which the facility is located.

11 ‘‘(2) The amount of any reimbursement to

12 a State under subsection (b)(1) may not ex13 ceed $50,000 for a single response. The reim14 bursement under this section with respect to

15 a single facility shall be limited to the State

16 in which the facility is located.

17 ‘‘(3) The amounts allowed for State and

18 local governments under subsection (b)(1)

19 may not be combined for any single response

20 action.

21 ‘‘(d) PROCEDURE.—Reimbursements au22 thorized pursuant to this section shall be in

23 accordance with rules promulgated by the Ad24 ministrator.’’.
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1 (b) AMENDMENT OF SECTION 111.—Para2 graph (11) of section 111(c) of such Act is

3 amended—

4 (1) by striking out ‘‘LOCAL GOVERN5 MENT REIMBURSEMENT.—’’ and inserting in

6 lieu thereof ‘‘STATE AND LOCAL GOVERN7 MENT REIMBURSEMENT.—(A)’’; and

8 (2) by adding at the end the following

9 new subparagraph:

10 ‘‘(B) Reimbursements to States under

11 section 123, except that no State may re12 ceive more than $2,000,000 in any one fis13 cal year.’’.

14 (c) DEADLINE FOR REGULATIONS.—The Ad15 ministrator of Environmental Protection

16 Agency shall promulgate regulations to imple17 ment section 123 of the Comprehensive Envi18 ronmental Response, Compensation, and Li19 ability Act of 1980 (42 U.S.C. 9623), as amend20 ed by subsection (a), not later than one year

21 after the date of the enactment of this Act.

22 SEC. 620. INCENTIVES TO MANAGING PARTIES.

23 The President shall encourage managing

24 parties conducting response actions under

25 the Comprehensive Environmental Response,
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1 Compensation, and Liability Act of 1980 to

2 have their contractors train minorities and

3 other disadvantaged persons from the af4 fected community in remediation skills di5 rectly and in conjunction with historically

6 black colleges and universities and other edu7 cational institutions that primarily serve mi8 norities.

9 SEC. 621. STUDY OF SMALL DISADVANTAGED BUSINESS

10 GOALS.

11 The Administrator of the Environmental

12 Protection Agency shall study the advisability

13 and feasibility of instituting a small disadvan14 taged business goal program for all contracts

15 entered into by the Federal Government

16 under the Comprehensive Environmental Re17 sponse, Compensation, and Liability Act of

18 1980 and shall report the Administrator’s rec19 ommendations to Congress within 1 year after

20 the date of the enactment of this Act. In carry21 ing out the study, the Administrator shall give

22 due consideration to the small disadvantaged

23 business goals established under section 2323

24 of title 10, United States Code, for the Depart25 ment of Defense and to the implementation of
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1 such goals by a State in any case in which a

2 State is authorized to carry out such Act.

3 SEC. 622. INCINERATION OF DIOXIN AT TIMES BEACH, MIS4 SOURI.

5 The Administrator of the Environmental

6 Protection Agency may not incinerate dioxin

7 at the Times Beach site in the vicinity of St.

8 Louis, Missouri, until the General Accounting

9 Office and the Office of Technology Assess10 ment have completed a study on alternatives

11 to the incineration of dioxin at such site.

12 SEC. 623. CONFORMING AMENDMENT.

13 Section 104(g)(1) (42 U.S.C. 9604(g)(1)) is

14 amended by striking ‘‘section’’ and inserting

15 in lieu thereof ‘‘Act’’.

16 TITLE VII—FUNDING

17 SEC. 701. AUTHORIZATION OF APPROPRIATIONS.

18 Section 111(a) is amended by striking

19 ‘‘$8,500,000,000 for the 5-year period begin20 ning on the date of enactment of the

21 Superfund Amendments and Reauthorization

22 Act of 1986, and not more than $5,100,000,000

23 for the period commencing October 1, 1991,

24 and ending September 30, 1994’’ and inserting
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1 ‘‘$9,600,000,000 for the period commencing Oc2 tober 1, 1994, and ending September 30, 1999’’.

3 SEC. 702. ORPHAN SHARE FUNDING.

4 Section 111(a) is amended by adding after

5 paragraph (7) (as added by this Act) the fol6 lowing new paragraph:

7 ‘‘(8) ORPHAN SHARE FUNDING.—Pay8 ment of orphan shares pursuant to sec9 tion 130(e) of this Act.’’.

10 SEC. 703. AGENCY FOR TOXIC SUBSTANCES AND DISEASE

11 REGISTRY.

12 Section 111(m) (relating to ATSDR) is

13 amended to read as follows:

14 ‘‘(m) AGENCY FOR TOXIC SUBSTANCES AND

15 DISEASE REGISTRY.—There shall be directly

16 available to the Agency for Toxic Substances

17 and Disease Registry to be used for the pur18 pose of carrying out activities described in

19 subsection (c)(4) of this section and section

20 104(i) of this Act not less than $100,000,000 per

21 fiscal year for each of fiscal years 1995, 1996,

22 1997, 1998, and 1999 of which $20,000,000 per

23 fiscal year shall be available for the purposes

24 of section 104(i)(15)(C). Any funds so made

25 available which are not obligated by the end
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1 of the fiscal year in which made available

2 shall be turned to the Fund.’’.

3 SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT,

4 AND DEMONSTRATION PROGRAMS.

5 Section 111(n) is amended to read as fol6 lows:

7 ‘‘(n) LIMITATIONS ON RESEARCH, DEVELOP8 MENT, AND DEMONSTRATION PROGRAM.—

9 ‘‘(1) SECTION 311(a).—From the

10 amounts available in the Fund, not more

11 than the following amounts may be used

12 for the purposes of section 311(a) of this

13 title (relating to hazardous substance re14 search, demonstration, and training ac15 tivities):

16 ‘‘(A) For fiscal year 1995

17 $40,000,000.

18 ‘‘(B) For fiscal year 1996

19 $50,000,000.

20 ‘‘(C) For fiscal year 1997

21 $55,000,000.

22 ‘‘(D) For fiscal year 1998

23 $55,000,000.

24 ‘‘(E) For fiscal year 1999

25 $55,000,000.
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1 No more than 10 percent of such amounts

2 shall be used for training under section

3 311(a) of this title for any fiscal year.

4 ‘‘(2) SECTION 311(d).—For each of the

5 fiscal years 1995, 1996, 1997, 1998, and

6 1999, not more than $5,000,000 of the

7 amounts available in the Fund may be

8 used for the purposes of section 311(d) of

9 this title (relating to university hazard10 ous substance research centers).’’.

11 SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM

12 GENERAL REVENUES.

13 Section 111(p)(1) is amended to read as

14 follows:

15 ‘‘(1) IN GENERAL.—The following sums

16 are authorized to be appropriated, out of

17 any money in the Treasury not otherwise

18 appropriated, to the Hazardous Sub19 stance Superfund:

20 ‘‘(A) For fiscal year 1995,

21 $250,000,000.

22 ‘‘(B) For fiscal year 1996,

23 $250,000,000.

24 ‘‘(C) For fiscal year 1997,

25 $250,000,000.
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1 ‘‘(D) For fiscal year 1998,

2 $250,000,000.

3 ‘‘(E) For fiscal year 1999,

4 $250,000,000.

5 In addition there is authorized to be ap6 propriated to the Hazardous Substance

7 Superfund for each fiscal year an amount

8 equal to so much of the aggregate

9 amount authorized to be appropriated

10 under this subsection (and paragraph (2)

11 of section 131(b) of this title) as has not

12 been appropriated before the beginning

13 of the fiscal year involved.’’.

14 SEC. 706. ADDITIONAL LIMITATIONS.

15 Section 111 is amended by adding after

16 subsection (p) the following new subsections:

17 ‘‘(q) CITIZEN INFORMATION AND ACCESS OF18 FICES.—For each of the fiscal years 1995, 1996,

19 1997, 1998, and 1999, not more than

20 $50,000,000 of the amounts available in the

21 Fund may be used for the purposes of section

22 117(h) of this Act (relating to citizen informa23 tion and access offices).

24 ‘‘(r) VOLUNTARY RESPONSE PROGRAMS.—For

25 each of the fiscal years 1995 through 1999, not
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1 more than $20,000,000 of the amounts avail2 able in the Fund may be used for the purposes

3 of section 128 of this Act (relating to State vol4 untary cleanup programs).’’.

5 SEC. 707. USES OF THE FUND.

6 Section 111(a) is amended by adding after

7 paragraph (8) the following new paragraph:

8 ‘‘(9) REIMBURSEMENT OF POTENTIALLY

9 RESPONSIBLE PARTY COSTS.—If a poten10 tially responsible party and the Adminis11 trator enter into a settlement under this

12 Act in which the Administrator is reim13 bursed for its response costs, and if the

14 Administrator determines, through a

15 Federal audit of response the costs, that

16 costs for which the Administrator was re17 imbursed:

18 ‘‘(A) are unallowable due to con19 tractor fraud, or

20 ‘‘(B) are unallowable under the

21 Federal Acquisition Regulations, or

22 ‘‘(C) should be adjusted due to

23 routine contract and Environmental

24 Protection Agency response cost

25 audit procedures,
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1 then the Administrator is authorized to

2 use the fund to reimburse a potentially

3 responsible party for any costs identified

4 under subparagraph (A), (B), or (C) of

5 this paragraph.’’.

6 TITLE VIII—ENVIRONMENTAL

7 INSURANCE RESOLUTION FUND

8 SEC. 801. SHORT TITLE.

9 This title may be cited as the ‘‘Environ10 mental Insurance Resolution and Equity Act

11 of 1994’’.

12 SEC. 802. DEFINITIONS.

13 For purposes of this title:

14 (1) APPLICABLE COSTS.—The term ‘‘ap15 plicable costs’’ means applicable National

16 Priorities List (NPL) facility costs or ap17 plicable non-NPL facility costs. Costs of

18 removal shall be treated as applicable

19 costs only if the removal is conducted in

20 accordance with section 104, 106 or 122 of

21 CERCLA or under the regulations of the

22 Administrator governing removal actions

23 (40 CFR 300.415 or any successor regula24 tions).
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1 (2) APPLICABLE NPL FACILITY COSTS.—

2 The term ‘‘applicable NPL facility costs’’

3 means the costs for an eligible NPL facil4 ity—

5 (A) of response (as defined in sec6 tion 101(25) of CERCLA);

7 (B) for natural resources damages

8 under section 107 of CERCLA; or

9 (C) to defend potential liability

10 for the costs described in subpara11 graph (A) or (B) or both, including,

12 but not limited to, attorney’s fees,

13 costs of suit, consultant and expert

14 fees and costs, and expenses for test15 ing and monitoring.

16 (3) APPLICABLE NON-NPL FACILITY

17 COSTS.—The term ‘‘applicable non-NPL fa18 cility costs’’ means the costs for a non19 NPL facility—

20 (A) of removal (as defined in sec21 tion 101(23) of CERCLA); and

22 (B) to defend potential liability

23 for such costs of removal, including,

24 but not limited to, attorney’s fees,

25 costs of suit, consultant and expert
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1 fees and costs, and expenses for test2 ing and monitoring.

3 (4) BOARD.—The term ‘‘Board’’ means

4 the Board of Trustees of the Fund.

5 (5) CERCLA.—The term ‘‘CERCLA’’

6 means the Comprehensive Environmental

7 Response, Compensation and Liability

8 Act of 1980 (42 U.S.C. 9601 et seq.).

9 (6) ELIGIBLE COSTS.—The term ‘‘eligi10 ble costs’’ means the applicable costs in11 curred with respect to a hazardous sub12 stance disposed of at an eligible facility

13 for which an eligible person either (A)

14 has not been reimbursed or (B) has been

15 reimbursed and that are the subject of a

16 dispute between the eligible person and

17 an insurer. The term eligible costs shall

18 not include any costs paid by the United

19 States.

20 (7) ELIGIBLE FACILITY.—The term ‘‘eli21 gible facility’’ means an eligible NPL fa22 cility or an eligible non-NPL facility.

23 (8) ELIGIBLE NPL FACILITY.—The term

24 ‘‘eligible NPL facility’’ means any facility

25 placed on the National Priority List at
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1 any time, at which a hazardous substance

2 was disposed of on or before December

3 31, 1985.

4 (9) ELIGIBLE NON-NPL FACILITY.—The

5 term ‘‘eligible non-NPL facility’’ means

6 any site or facility where a removal (as

7 defined in section 101(23) of CERCLA)

8 was conducted pursuant to governmental

9 direction or oversight under CERCLA

10 and the National Contingency Plan at

11 any time, at which a hazardous substance

12 was disposed of on or before December

13 31, 1985.

14 (10) ELIGIBLE PERSON.—The term ‘‘eli15 gible person’’ means any person that

16 demonstrates, to the satisfaction of the

17 Resolution Fund, that such person ei18 ther—

19 (A) has received a notice at any

20 time that it may be a potentially re21 sponsible party pursuant to CERCLA

22 with respect to an eligible NPL facil23 ity, which notice requests or demands

24 that such party perform response ac-
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1 tions or pay response costs or natural

2 resource damages for such facility; or

3 (B) is or was liable, or alleged to

4 be liable, at any time for a removal

5 (as defined in section 101(23) of

6 CERCLA) at any eligible facility,

7 and had entered into a valid insurance

8 contract for qualified insurance.

9 (11) FACILITY.—The term ‘‘facility’’ has

10 the same meaning as provided in section

11 101(9) of CERCLA.

12 (12) FUND.—The term ‘‘Fund’’ means

13 the Environmental Insurance Resolution

14 Fund.

15 (13) NPL.—The term ‘‘NPL’’ means the

16 National Priorities List.

17 (14) PERSON.—The term person means

18 an individual, firm, corporation, associa19 tion, partnership, consortium, joint ven20 ture, commercial entity or governmental

21 unit (including any predecessor in inter22 est or any subsidiary thereof).

23 (15) QUALIFIED INSURANCE.—The term

24 ‘‘qualified insurance’’ means insurance

25 for comprehensive general liability or
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1 commercial multi-peril insurance cov2 erage for any period prior to January 1,

3 1986. For purposes of this paragraph,

4 comprehensive general liability insur5 ance includes broad form liability, gen6 eral liability, commercial general liabil7 ity, and excess or umbrella coverage; and

8 commercial multi-peril insurance in9 cludes broad form property, commercial

10 package, special multi-peril, and excess

11 or umbrella coverage. Such term shall

12 not include any other insurance, such as

13 environmental impairment liability in14 surance, whether found in primary, ex15 cess, or umbrella coverage.

16 (16) VALID INSURANCE CONTRACT.—The

17 term ‘‘valid insurance contract’’ means a

18 contract for qualified insurance other

19 than any of the following:

20 (A) An insurance contract with re21 spect to which a person has entered

22 into a settlement with an insurer pro23 viding, or where a final judgment has

24 provided, that the contract has been

25 satisfied and that such person has no
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1 right to make any further claims

2 under such contract.

3 (B) An insurance contract which

4 covers only a time period prior to the

5 earliest date of the action or status of

6 the insured person which resulted in

7 liability or potential liability under

8 section 107 of CERCLA.

9 (C) An insurance contract with an

10 insurance company which is insol11 vent or in insolvency proceedings.

12 (D) An insurance contract which

13 is the subject of a settlement between

14 the insurance company and the in15 sured pursuant to which the policy

16 has been reformed to include an abso17 lute exclusion for pollution liability

18 (‘‘absolute pollution exclusion’’).

19 (17) STATE.—The term ‘‘State’’ has the

20 same meaning as provided in section

21 101(27) of CERCLA.

22 SEC. 803. ENVIRONMENTAL INSURANCE RESOLUTION

23 FUND.

24 (a) ENVIRONMENTAL INSURANCE RESOLUTION

25 FUND ESTABLISHED.—There is hereby estab-
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1 lished the Environmental Insurance Resolu2 tion Fund.

3 (b) OFFICES.—The principal office of the

4 Fund shall be in the District of Columbia or

5 at such other place as the Fund may from

6 time to time prescribe.

7 (c) STATUS OF RESOLUTION FUND.—Except

8 as expressly provided in this title, the Fund

9 shall not be considered an agency or estab10 lishment of the United States. The members of

11 the Board of Trustees shall not, by reason of

12 such membership, be deemed to be officers or

13 employees of the United States.

14 (d) BOARD OF TRUSTEES.—

15 (1) IN GENERAL.—The Fund shall be

16 administered by a Board of Trustees.

17 (2) MEMBERSHIP.—The Board shall

18 consist of the following:

19 (A) GOVERNMENTAL MEMBERS.—

20 (i) The Administrator of the

21 Environmental Protection Agency

22 or the Administrator’s designee.

23 (ii) The Attorney General of

24 the United States or the Attorney

25 General’s designee.
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1 (B) PUBLIC MEMBERS.—Five public

2 members appointed by the President

3 not later than 60 days after the date

4 of enactment of this title, not less

5 than two of whom shall represent in6 surers subject to section ll of the

7 Internal Revenue Code of 1986, and

8 not less than two of whom shall rep9 resent eligible persons as defined in

10 section 802(10). The public members

11 shall be citizens of the United States.

12 (C) EX-OFFICIO MEMBER.—The Sec13 retary of the Treasury shall serve as

14 an ex officio member of the Board.

15 (3) CHAIR.—The Chair of the Board

16 shall be designated by the President from

17 time to time from among the members de18 scribed in paragraph (2)(A). No expendi19 ture may be made, or other action taken,

20 by the Fund without the concurrence of

21 the Chair of the Board.

22 (4) COMPENSATION.—Governmental

23 members of the Board shall serve without

24 additional compensation. Public mem25 bers of the Board shall, while attending
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1 meetings of the Board or while engaged

2 in duties related to such meetings or

3 other activities of the Board pursuant to

4 this title, be entitled to receive compensa5 tion at the rate of $200 per day, including

6 travel time. While away from their homes

7 or regular places of business, members of

8 the Board shall be allowed travel and ac9 tual, reasonable and necessary expenses

10 to the same extent as officers of the Unit11 ed States.

12 (5) TERM OF PUBLIC MEMBERS.—Public

13 members of the Board shall serve for a

14 term of 5 years, except that such mem15 bers may be removed by the President

16 for any reason at any time. A public mem17 ber whose term has expired may con18 tinue to serve on the Board until such

19 time as the President appoints a succes20 sor. The President may reappoint a pub21 lic member of the Board, but no such

22 member may consecutively serve more

23 than two terms.

24 (6) VACANCIES.—A vacancy on the

25 Board shall be filled in the same manner
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1 as the original appointment, except that

2 such appointment shall be for the bal3 ance of the unexpired term of the vacant

4 position.

5 (7) QUORUM.—Four members of the

6 Board shall constitute a quorum for the

7 conduct of business.

8 (8) MEETINGS.—The Board shall meet

9 not less than quarterly at the call of the

10 Chair. Meetings of the Board shall be

11 open to the public unless the Board, by a

12 majority vote of members present in open

13 session, determines that it is necessary or

14 appropriate to close a meeting. The Chair

15 shall provide at least 10 days notice of a

16 meeting by publishing a notice in the

17 Federal Register and such notice shall in18 dicate whether it is expected that the

19 Board will consider closing all or a por20 tion of the meeting. Nothing in this para21 graph shall be construed to apply to in22 formal discussions or meetings among

23 Board members.

24 (e) OFFICERS AND EMPLOYEES.—
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1 (1) CHIEF EXECUTIVE OFFICER; CHIEF FI2 NANCIAL OFFICER.—(A) The Fund shall

3 have a Chief Executive Officer appointed

4 by the Board who shall exercise any au5 thority of the Fund under such terms and

6 conditions as the Board may prescribe.

7 (B) The Fund shall have a Chief Fi8 nancial Officer appointed by the Board.

9 (2) COMPENSATION.—No officer or em10 ployee of the Fund may be compensated

11 by the Fund at an annual rate of pay

12 which exceeds the rate of basic pay in ef13 fect from time to time for level I of the

14 Executive Schedule under section 5312 of

15 title 5, United States Code. No officer or

16 employee of the Fund, other than a mem17 ber of the Board, may receive any salary

18 or other compensation from any source

19 other than the Fund for services ren20 dered during the period of employment

21 by the Fund.

22 (3) POLITICAL TEST OR QUALIFICATION.—

23 No political test or qualification shall be

24 used in selecting, appointing, promoting,

25 or taking other personnel actions with
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1 respect to officers, agents, and employees

2 of the Fund.

3 (4) ASSISTANCE BY FEDERAL AGENCIES.—

4 The Attorney General, the Secretary of

5 the Treasury, and the Administrator of

6 the Environmental Protection Agency,

7 may to the extent practicable and fea8 sible, and in their sole discretion, make

9 personnel and other resources available

10 to the Fund. Such personnel and re11 sources may be provided on a reimburs12 able basis, and any personnel so provided

13 shall not be considered employees of the

14 Fund for purposes of paragraph (2).

15 (f) POWERS OF RESOLUTION FUND.—Not16 withstanding any other provision of law, ex17 cept as provided in this title or as may be

18 hereafter enacted by the Congress expressly

19 in limitation of the provisions of this sub20 section, the Fund shall have the power—

21 (1) to have succession until dissolved

22 by Act of Congress;

23 (2) to make and enforce such bylaws,

24 rules and regulations as may be nec-
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1 essary or appropriate to carry out the

2 purposes of this title;

3 (3) to make and perform contracts,

4 agreements, and commitments;

5 (4) to settle, adjust, and compromise,

6 and with or without consideration or

7 benefit to the Fund release or waive in

8 whole or in part, in advance or other9 wise, any claim, demand, or right of, by,

10 or against the Fund;

11 (5) to sue and be sued, complain and

12 defend, in any State, Federal or other

13 court;

14 (6) to determine its necessary expend15 itures and appoint, employ, and fix and

16 provide for the duties, compensation and

17 benefits of officers, employees, attorneys,

18 and agents, all of whom shall serve at the

19 pleasure of the Board; except that all

20 amounts withdrawn from the Treasury of

21 the United States by or on behalf of the

22 Resolution Fund shall be certified by a

23 federally authorized certifying officer

24 who is an employee of the Federal agency
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1 represented by the chair of the Resolu2 tion Fund;

3 (7) to hire or accept the voluntary

4 services of consultants, experts, advisory

5 boards, and panels to aid the Fund in

6 carrying out the purposes of this title;

7 and

8 (8) to take such other actions as may

9 be necessary to carry out the responsibil10 ities of the Fund under this title.

11 (g) BORROWING AUTHORITY.—Nothing in

12 this title shall be construed to permit the

13 Fund to issue any evidence of indebtedness or

14 otherwise borrow money.

15 SEC. 804. RESOLUTION OFFERS.

16 (a) IN GENERAL.—The Fund shall offer one

17 comprehensive resolution to each eligible per18 son. The offer shall be for a percentage of all

19 the eligible costs of such eligible person in20 curred in connection with all eligible facili21 ties. The amount of the offer shall be deter22 mined pursuant to section 806.

23 (b) REQUESTS FOR RESOLUTION OFFERS.—

24 (1) IN GENERAL.—An eligible person

25 may, at any time after the promulgation
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1 of the interim final regulations under

2 section 812(a), file a request for a resolu3 tion offer from the Fund.

4 (2) RESPONSE TO REQUEST.—Not later

5 than 180 days after the receipt of a com6 plete request as determined by the Fund,

7 the Fund shall in writing—

8 (A) make a resolution offer to

9 each eligible person that has filed a

10 request for a resolution offer; or

11 (B) notify a person filing such a

12 request that such person is not an eli13 gible person.

14 (c) JOINT VENTURES AND SUBSIDIARIES.—A

15 joint venture shall not be aggregated with any

16 individual joint venturer for purposes of this

17 section but shall be treated as a distinct en18 tity for such purposes. All claims by subsidi19 aries shall be included in a single claim by the

20 corporate parent for purposes of this Act.

21 SEC. 805. DOCUMENTATION OF CLAIMS AND INSURANCE

22 COVERAGE.

23 (a) SCREENING OF CLAIMS.—

24 (1) DENIAL BY REASON OF FELONY.—The

25 Fund may deny a resolution offer to an
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1 otherwise eligible person for a specific fa2 cility if the eligible person has been con3 victed of a felony under any Federal or

4 State statute which has a material effect

5 on the response costs or natural resource

6 damage incurred at the facility.

7 (2) FILING AND ACTIVE PURSUIT OF

8 CLAIMS.—The Fund may decide not to

9 make an offer to an eligible person unless

10 the eligible person has filed a claim and

11 is actively pursuing the claim. The Fund

12 may also decide that an offer should be

13 made to any such person.

14 (b) FILING OF CLAIMS.—For the purposes of

15 subsection (a), an eligible person shall be

16 deemed to have filed a claim if the eligible

17 person has notified one or more of its insurers

18 of the existence of a claim, or has engaged in

19 active investigation and preparation of a

20 claim, or has filed a lawsuit seeking coverage

21 for eligible costs. Failure to have filed a claim

22 or to have engaged in settlement discussions

23 before January 1, 1994, shall not be deemed

24 to preclude an eligible person from receiving

25 an offer from the Fund if the eligible person
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1 had not received any notice letter from a gov2 ernmental authority or one or more poten3 tially responsible parties asserting its poten4 tial liability under CERCLA at any eligible fa5 cility until after January 1, 1993.

6 (c) ACTIVE PURSUIT OF CLAIMS.—For pur7 poses of this section, an eligible person shall

8 be considered to be actively pursuing a claim

9 if—

10 (1) the person has filed a lawsuit

11 against an insurer, or has filed a motion

12 or another pleading in a lawsuit against

13 an insurer, or has engaged in any discov14 ery in a lawsuit against an insurer be15 tween January 1, 1993, and December 31,

16 1993 regarding eligible costs at an eligi17 ble facility;

18 (2) the person has engaged in settle19 ment discussions with an insurer be20 tween January 1, 1993, and December 31,

21 1993 regarding eligible costs at an eligi22 ble facility;

23 (3) the person has engaged in active

24 investigation and preparation of a claim

25 before January 1, 1994;
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1 (4) if the person has received a letter

2 from an insurer rejecting coverage or re3 serving its rights to reject coverage re4 garding eligible costs at an eligible facil5 ity, the person has sent within 1 year

6 thereafter an additional status report or

7 letter apprising an insurer of activities

8 regarding an eligible facility; or

9 (5) the eligible person has sent a let10 ter to an insurer notifying an insurer of

11 the potential existence of a claim regard12 ing eligible costs at an eligible facility

13 and has received no response from the in14 surer.

15 (d) DOCUMENTATION OF COVERAGE.—

16 (1) EFFECT OF DOCUMENTATION.—Cov17 erage of an eligible person for policy

18 years prior to 1986 and the applicable

19 deductibles and limits on coverage shall

20 be confirmed to the satisfaction of the

21 Fund by the terms of the policies or other

22 documentary proof of insurance provided

23 by, or for, the eligible person in accord24 ance with this subsection.
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1 (2) SUBMISSION OF DOCUMENTARY EVI2 DENCE.—After promulgation of regula3 tions governing documentation require4 ments, an eligible person requesting an

5 offer shall submit: copies of its insurance

6 policies, or other documentary evidence

7 sufficient to establish the following six

8 terms of coverage: insurance company,

9 policy number, type of policy, duration of

10 policy, deductible or self-insured reten11 tion, and limit of coverage. Documentary

12 evidence may consist of any documents

13 from an insurance company or broker or

14 documents of the eligible person or other

15 party which are generally contempora16 neous with the term of the policy or with

17 subsequent retrospective rating under

18 the policy. Where documentary evidence

19 (other than a policy) is relied upon as the

20 proof of coverage, an eligible person must

21 certify that it has undertaken a good

22 faith investigation of its records, that its

23 submission is complete and accurate to

24 the best of its information and belief, and

25 that it does not have a copy of the insur-
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1 ance policy. If an eligible person submits

2 documentary evidence which does not es3 tablish all six terms of coverage but

4 which does establish the name of the in5 surance company and one or more other

6 terms evidencing coverage, the named in7 surance company shall undertake an in8 vestigation for any policy or other rel9 evant documents evidencing the eligible

10 person’s coverage. At the conclusion of

11 the investigation, the named insurance

12 company shall—

13 (A) produce to the Fund any poli14 cies or other documents relevant to

15 the eligible person’s claim of cov16 erage; or

17 (B) certify that it has undertaken

18 a good faith investigation of its

19 records and that it has produced any

20 and all policies or documents avail21 able to the insurer and relevant to

22 the eligible person’s claim of cov23 erage.

24 Subsequent to the named insurance com25 pany’s production or certification, the
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1 Fund shall decide whether a person has

2 provided adequate proof of insurance

3 based on the evidence presented. Submis4 sion of the six terms of coverage referred

5 to in this paragraph shall be treated as

6 adequate proof of insurance.

7 (e) PRIOR SETTLEMENTS.—

8 (1) DISCLOSURE.—Each eligible person

9 shall be required to disclose and certify

10 the amounts and terms of any settlement

11 reached with an insurer for eligible costs

12 at eligible facilities. In the event that the

13 terms of such a settlement are subject to

14 a protective order or are otherwise con15 fidential, the eligible person may provide

16 evidence of the confidential nature of the

17 settlement information to the Fund. Upon

18 receipt of such evidence, the Fund shall

19 be obligated to preserve the confidential20 ity of all such settlement information.

21 (2) EFFECT OF TITLE ON PRIOR SETTLE22 MENTS.—This title shall have no effect on

23 prior settlements between eligible per24 sons and an insurer.
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1 SEC. 806. AMOUNT OF RESOLUTION OFFERS.

2 (a) RESOLUTION OFFERS.—The Fund shall

3 make resolution offers to each eligible person

4 equal to the applicable percentage (deter5 mined under this section) of the lesser of the

6 following:

7 (1) The eligible costs actually in8 curred by an eligible person.

9 (2) The available coverage, as deter10 mined under this section.

11 (b) APPLICABLE PERCENTAGE.—

12 (1) IN GENERAL.—For each eligible per13 son that has not established a litigation

14 venue pursuant to subsection (d), the ap15 plicable percentage shall be equal to the

16 facility location percentage for that per17 son. For each eligible person that has es18 tablished one or more litigation venues

19 pursuant to subsection (d), the applicable

20 percentage shall be comprised of one-half

21 of the facility location percentage for

22 that person plus one-half of the venue

23 percentage for that person.

24 (2) FACILITY LOCATION PERCENTAGE.—

25 (A) ONE OR MORE ELIGIBLE NPL FA26 CILITIES.—For each eligible person,
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1 the Fund shall establish a facility lo2 cation percentage. The percentage

3 shall be equal to the weighted aver4 age of the State percentages for each

5 eligible NPL facility for which such

6 person has been identified as a poten7 tially responsible party. In determin8 ing such weighted average, each such

9 eligible facility shall be accorded

10 equal value, except as provided in

11 paragraph (4).

12 (B) NO ELIGIBLE NPL FACILITIES.—

13 For each person not identified as a

14 potentially responsible party at one

15 or more eligible NPL facilities but

16 who is, or is alleged to be, liable at

17 any time for removal (as defined in

18 section 101(23) of CERCLA) at one or

19 more eligible non-NPL facilities, the

20 Fund shall establish a facility loca21 tion percentage equal to the weighted

22 average of the State percentages for

23 each such eligible non-NPL facility.

24 In determining such weighted aver-
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1 age, each such facility shall be ac2 corded equal value.

3 (3) LITIGATION VENUE PERCENTAGE.—

4 (A) ONE OR MORE ELIGIBLE NPL FA5 CILITIES.—For each eligible person

6 that has established one or more liti7 gation venues pursuant to subsection

8 (d) with respect to one or more eligi9 ble NPL facilities, the Fund shall es10 tablish a litigation venue percentage.

11 The percentage shall be equal to the

12 weighted average of the State per13 centages for each eligible NPL facility

14 in each State in which such eligible

15 person has established a litigation

16 venue. In determining such weighted

17 average, each eligible NPL facility

18 with respect to which such person

19 has established a litigation venue

20 shall be accorded equal value.

21 (B) NO ELIGIBLE NPL FACILITIES.—

22 For each eligible person that does not

23 have one or more eligible NPL facili24 ties and has established litigation

25 venue with respect to one or more eli-
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1 gible non-NPL facilities pursuant to

2 subsection (d), the Fund shall estab3 lish a litigation venue percentage

4 equal to the weighted average of the

5 State percentages for each eligible

6 non-NPL facility in each State in

7 which such eligible person has estab8 lished a litigation venue. In determin9 ing such weighted average, each eligi10 ble non-NPL facility with respect to

11 which litigation venue has been es12 tablished shall be accorded equal

13 value.

14 (4) EXTRA WEIGHTING OF LARGE SITES.—

15 In determining the facility location per16 centage under paragraph (2)(A), the Fund

17 shall count a facility twice for weighting

18 purposes if—

19 (A) the facility is located in the

20 same State as the State in which liti21 gation venue has been established;

22 (B) the facility is included in the

23 eligible person’s coverage litigation

24 in that venue; and
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1 (C) total response costs incurred

2 plus estimated response costs exceed

3 $50,000,0000, as established by gov4 ernmental cost summaries or de5 mands, records or decision, or evi6 dence satisfactory to the Fund of

7 costs actually incurred.

8 (c) STATE PERCENTAGE.—

9 (1) CONGRESSIONAL FINDINGS.—The

10 Congress finds that as of January 1, 1994,

11 State law generally is more favorable to

12 eligible persons that pursue claims con13 cerning eligible costs against insurers in

14 some States, that State law generally is

15 more favorable to insurers with respect

16 to such claims in some States, and that in

17 some States the law generally favors nei18 ther insurers nor eligible persons with

19 respect to such claims or that there is in20 sufficient information to determine

21 whether such law generally favors insur22 ers or eligible persons with respect to

23 such claims. The Congress further finds

24 that considerations of equity and fairness

25 require that resolution offers made by
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1 the Fund must vary to reflect the relative

2 state of the law among the several States.

3 (2) STATE PERCENTAGE CATEGORIES.—

4 The States are hereby classified into the

5 following percentage categories:

6 (A) 20 PERCENT.—The State per7 centage shall be 20 percent for: Flor8 ida, Maine, Maryland, Massachusetts,

9 Michigan, New York, North Carolina,

10 and Ohio.

11 (B) 60 PERCENT.—The State per12 centage shall be 60 percent for: Cali13 fornia, Colorado, Georgia, Illinois,

14 New Jersey, Washington, West Vir15 ginia, and Wisconsin.

16 (C) 40 PERCENT.—For all other

17 States the State percentage shall be

18 40 percent.

19 (d) LITIGATION VENUE.—For purposes of

20 this section, litigation venue is considered es21 tablished with respect to an eligible person

22 if—

23 (1) on or before December 31, 1993,

24 the eligible person had pending in a

25 court of competent jurisdiction a com-
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1 plaint against an insurer with respect to

2 eligible costs at an eligible facility; and

3 (2) no motion to change venue with

4 respect to such complaint was pending

5 on or before January 31, 1994.

6 (e) AVAILABLE COVERAGE.—

7 (1) IN GENERAL.—The Fund shall de8 termine the available coverage for each

9 eligible person by adding the limits of li10 ability contained in all valid insurance

11 contracts of insurance (including per oc12 currence, aggregate, primary, excess or

13 other limits) and then by subtracting the

14 total of all deductibles and self-insured

15 retentions applicable to those policies. In

16 calculating the available coverage and

17 the average deductible pursuant to sec18 tion 808(c), the Fund shall exclude any

19 deductible or self-insured retention con20 tained in a policy which has already been

21 paid by the eligible person.

22 (2) PER OCCURRENCE BASIS POLICIES.—

23 For insurance policies with limits or

24 deductibles expressed on a per occur25 rence basis without an aggregate limit,
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1 the limit or deductible shall be an

2 amount equal to the limit or deductible

3 in the policy multiplied by the number of

4 eligible facilities of the eligible person

5 and by the number of years the policy

6 was in effect. Per occurrence limits or

7 deductibles may be adjusted by the Fund

8 whenever there is an increase in the eli9 gible facilities attributable to an eligible

10 party.

11 (f) ADJUSTMENT FOR OWNED PROPERTY

12 SITES.—

13 (1) ADJUSTMENT.—If an eligible person

14 seeks payment of eligible costs for an

15 owned property site, only 70 percent of

16 such eligible costs (including eligible

17 costs for off site contamination attrib18 utable to the owned property) shall be

19 taken into account in making payments

20 under this section.

21 (2) DEFINITIONS.—For purposes of this

22 subsection:

23 (A) OWNED PROPERTY SITE.—A fa24 cility shall be considered an owned

25 property site if—
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1 (i) an eligible person owned

2 or leased the facility at the time

3 of initial disposal or a prede4 cessor company owned or leased

5 the facility at the time of initial

6 disposal and the predecessor com7 pany merged into an eligible per8 son or became the wholly owned

9 subsidiary of an eligible person;

10 (ii) the property owned or

11 leased by the eligible person or

12 predecessor company represents

13 all or a portion of the facility as

14 specifically designated on the

15 NPL or as subject to a removal

16 covered by this title;

17 (iii)(I) an eligible person or

18 predecessor company generated

19 all of the hazardous substances

20 which were disposed of during

21 the period such person or prede22 cessor owned or leased the facil23 ity, or (II) an eligible person or

24 predecessor company owned a

25 landfill which is part of the prop-
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1 erty on which a manufacturing or

2 industrial facility is situated, the

3 landfill was used for the treat4 ment, storage, or disposal of

5 waste generated from the manu6 facturing or industrial facility

7 and from third parties, and the

8 landfill contains waste that is not

9 primarily municipal solid waste

10 or sewage sludge as defined in

11 title VI of this Act; and

12 (iv) the hazardous substances

13 associated with the owned prop14 erty constitute the basis for liabil15 ity at the facility.

16 (B) PROPERTY NOT CONSIDERED

17 OWNED PROPERTY.—A facility shall not

18 be considered owned property of an

19 eligible person for purposes of this

20 section when the eligible person ac21 quired the facility from, or acquired

22 the assets of, a company which en23 gaged in initial disposal of hazardous

24 substances at the facility and the eli25 gible person did not engage in initial
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1 disposal of hazardous substances at

2 the facility during its period of own3 ership. An owned property site shall

4 not include a public or commercial

5 landfill primarily used for disposal,

6 storage, or treatment of municipal

7 solid waste or sewage sludge as de8 fined in title VI of this Act.

9 (C) INITIAL DISPOSAL.—For pur10 poses of this paragraph, the term ini11 tial disposal means the spilling,

12 pumping, pouring, emitting,

13 emptying, discharging, injecting,

14 dumping, disposing, placing, or leak15 ing of hazardous substances into the

16 environment caused by the facility

17 owner but does not include—

18 (i) any continuing or further

19 leaking, escaping, or leaching of

20 hazardous substances into the en21 vironment during subsequent pe22 riods of ownership which was not

23 caused by the acts of a subse24 quent owner; or
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1 (ii) any activities undertaken

2 by an owner related to response

3 at the facility.

4 SEC. 807. ACCEPTANCE OF RESOLUTION OFFER.

5 (a) ACCEPTANCE.—

6 (1) ELECTION TO ACCEPT.—An eligible

7 person may, when submitting a request

8 for a resolution to the Fund, make a writ9 ten irrevocable election to accept any

10 resolution to be made by the Fund.

11 (2) NOTIFICATION.—An eligible person

12 that does not make an election pursuant

13 to paragraph (1) shall, within 60 days of

14 the receipt of a resolution offer from the

15 Fund, notify the Fund in writing of its ir16 revocable acceptance or rejection of such

17 offer. An eligible person who does not so

18 accept or reject a resolution offer within

19 60 days shall be deemed to have made an

20 irrevocable election to reject the offer.

21 (b) ACCEPTANCE OR REJECTION PRIOR TO

22 OFFER.—Upon expiration of the 60-day period

23 immediately following the enactment of this

24 Act, any eligible person may notify the Fund

25 that such eligible person accepts or rejects
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1 any offer to be issued by the Fund under this

2 title. Any such notice shall be signed by a duly

3 authorized officer of the eligible person, as

4 certified by the secretary of the eligible per5 son or by a person with equivalent authority.

6 (c) WAIVER OF INSURANCE CLAIMS.—Any eli7 gible person accepting a resolution offer from

8 the Fund shall agree in writing, subject to re9 instatement described in subsection (d) to

10 waive, stay, or dismiss any of its existing and

11 future claims against any insurer for eligible

12 costs, including bad faith claims pertaining to

13 actions to recover eligible costs.

14 (d) REINSTATEMENT OF INSURANCE

15 CLAIMS.—If the Fund fails to timely fulfill its

16 obligations to an eligible person under the

17 terms of an accepted resolution offer, such eli18 gible person shall be entitled to reinstate any

19 of its existing and future claims under a con20 tract for insurance with respect to eligible

21 costs. A shortfall provided for in section 808(f)

22 shall not be considered a failure of the Fund

23 to timely fulfill its obligations.
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1 SEC. 808. RESOLUTION PAYMENTS.

2 (a) TIME OF PAYMENT; PRE-RESOLUTION

3 COSTS.—The Fund shall make equal annual

4 payments over a period of 10 years for the ap5 plicable percentage of eligible costs incurred

6 by an eligible person on or before the date

7 such person accepts a resolution offer. The

8 Fund may, in its sole discretion, make such

9 payments over a shorter period if the aggre10 gate eligible costs do not exceed $50,000. An

11 eligible person shall submit to the Fund docu12 mentation of such costs as the Fund may re13 quire. The initial payment to an eligible per14 son under this paragraph shall be made not

15 later than 60 days after the receipt of docu16 mentation satisfactory to the Fund. Interest

17 shall not accrue on amounts payable pursuant

18 to a resolution offer during the 5-year period

19 beginning on the date of the enactment of this

20 Act. In each year thereafter, interest shall ac21 crue on the unpaid balance of the pre-resolu22 tion costs in an amount equal to the rate of

23 interest on one year Treasury bills issued on

24 the anniversary of such date of enactment, or

25 if no bills were issued on such date, on the
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1 last date such bills were issued prior to such

2 anniversary.

3 (b) TIME OF PAYMENT; POST-RESOLUTION

4 COSTS.—The Fund shall make payments for el5 igible costs incurred by an eligible person

6 after the date such person accepts a resolu7 tion offer to the eligible person, or to a con8 tractor or other person designated by the eli9 gible person, subject to such documentation

10 as the Fund may require. Payments under

11 this title shall be made not later than 60 days

12 after the receipt of documentation (satisfac13 tory to the Fund) with respect to such costs.

14 (c) ADJUSTMENT FOR DEDUCTIBLE OR SELF

15 INSURANCE.—In the case of an eligible person

16 that has submitted to the Fund, as proof of

17 status as an eligible person, a valid insurance

18 contract subject to a self-insured retention or

19 a deductible, payment to such eligible person

20 pursuant to a resolution shall be reduced

21 once by an amount equal to the average of the

22 amounts of self-insured retentions and

23 deductibles in all valid insurance contracts of

24 insurance of the eligible person. For purposes

25 of determining such average in the case of a
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1 per occurrence deductible or self-insured re2 tention, the Fund shall only count such de3 ductible or self-insured retention once for

4 each policy year.

5 (d) ADJUSTMENT FOR CERTAIN DUTY-TO-DE6 FEND COSTS.—If an insurer has incurred and

7 paid costs pursuant to a duty-to-defend clause

8 contained in a contract for insurance, and

9 such costs are the subject of a dispute be10 tween the eligible person and an insurer, the

11 Fund shall reduce payment of a resolution to

12 an eligible person by such amount and pay

13 such amount to the insurer. If such costs were

14 paid by the insurer on or before the date the

15 eligible person accepted a resolution offer

16 made by the Fund, payment to an insurer

17 under this section shall be made in equal an18 nual installments over a period of 10 years,

19 and interest shall not accrue with respect to

20 such costs. The Fund may, in its sole discre21 tion, make such payments over a shorter pe22 riod if the aggregate costs do not exceed

23 $50,000.

24 (e) EFFECT OF PAYMENTS.—(1) Payments

25 made to an eligible person by the Fund pursu-
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1 ant to a resolution offer shall be treated as

2 payments made by an insurer in satisfaction

3 of the terms and conditions of a contract of

4 insurance. Such payments shall be allocated

5 pro rata to each year in which proof of insur6 ance has been established. The amount allo7 cated to each coverage year shall be allocated

8 100 percent to the primary coverage until it

9 is exhausted and then 100 percent to each suc10 cessively higher layer of coverage until each

11 such layer is exhausted.

12 (2) No insurer shall be allowed to collect

13 recovery pursuant to a reinsurance contract

14 on the basis of a payment by the Fund unless

15 such reinsurer is not subject to the fees under

16 section lll of the Internal Revenue Code or

17 has not satisfied its obligations pursuant to

18 such fees.

19 (f) SHORTFALL.—If, in any year during the

20 first 10 years after enactment, the Fund does

21 not have sufficient funds available to pay all

22 eligible costs of resolution offers accepted by

23 eligible persons, the Fund shall determine the

24 amount of the costs which cannot be paid in

25 that year (the ‘‘shortfall’’). The Fund shall al-
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1 locate the shortfall to the eligible persons in

2 proportion to the size of their pending claims

3 for reimbursement from the Fund. This short4 fall shall be paid to the eligible person and

5 shall be amortized over the next 5 years, and

6 the amortized amount shall be paid with in7 terest at the rate specified for the amortiza8 tion of past costs. A shortfall which is being

9 amortized hereunder shall not be considered

10 a default by the Fund, triggering the rein11 statement of claims.

12 (g) INTERIM ALLOCATIONS.—An eligible per13 son accepting an offer of resolution shall be

14 entitled to receive payment of all eligible

15 costs which have been incurred. If an eligible

16 person obtains reimbursement of such eligi17 ble costs as a result of a final allocation, con18 tribution action, or otherwise, the eligible

19 person must notify the Fund of the amount of

20 the reimbursement and must either (1) reduce

21 its next claim to the Fund for payment of eli22 gible costs by the amount of the reimburse23 ment, or (2) refund the amount of the reim24 bursement.
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1 SEC. 809. REJECTION OF RESOLUTION OFFER AND REIM2 BURSEMENT TO INSURER.

3 If an eligible person rejects a resolution

4 offer (including a rejection pursuant to sec5 tion 807(b)), litigates a claim with respect to

6 eligible costs against 1 or more insurers, and

7 obtains a final judgment against, or enters

8 into a settlement with, any such insurer, the

9 Fund—

10 (1) shall reimburse to such insurer or

11 insurers the lesser of the amount of the

12 resolution offer made to the eligible per13 son (or, in the case of a rejection pursu14 ant to section 807(b), the amount which

15 the Fund would have offered) or the final

16 judgment or settlement; and

17 (2) may, if the resolution offer ex18 ceeded the final judgment or settlement,

19 reimburse the insurer or insurers for un20 recovered reasonable costs and legal fees,

21 except that the total reimbursement

22 under this subsection may not exceed the

23 amount of the resolution offer to the eli24 gible person (or, in the case of a rejection

25 pursuant to section 807(b), the amount

26 which the Fund would have offered).
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1 Reimbursements pursuant to this subsection

2 shall be subject to such documentation as the

3 Fund may require and shall be made by the

4 Fund not later than 60 days after receipt by

5 the Fund of a complete request for reimburse6 ment satisfactory to the Fund.

7 SEC. 810. FINANCIAL STATEMENTS, AUDITS, INVESTIGA8 TIONS, AND INSPECTIONS.

9 (a) IN GENERAL.—The financial statements

10 of the Fund shall be prepared in accordance

11 with generally accepted accounting prin12 ciples and shall be audited annually by an

13 independent certified public accountant in

14 accordance with the auditing standards is15 sued by the Comptroller General. Such audit16 ing standards shall be consistent with the pri17 vate sector’s generally accepted auditing

18 standards.

19 (b) INVESTIGATIONS AND OTHER AUDITS.—

20 The Inspector General of the Environmental

21 Protection Agency is authorized to conduct

22 audits and investigations as the Inspector

23 General deems necessary or appropriate.
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1 SEC. 811. STAY OF PENDING LITIGATION.

2 (a) ENACTMENT OPERATES AS STAY.—Except

3 as provided in this section, enactment of this

4 title shall operate as a stay, applicable to all

5 persons other than the United States, of the

6 commencement or continuation, including

7 the issuance or employment of process or

8 service of any pleading, motion, or notice, of

9 any judicial, administrative, or other action

10 with respect to claims for indemnity or other

11 claims arising from a valid insurance contract

12 of qualified insurance concerning insurance

13 coverage for eligible costs.

14 (b) ACTIONS NOT AFFECTED.—Nothing in

15 this title shall be construed to authorize a

16 stay of any action involving claims that do not

17 concern eligible costs or a valid insurance

18 contract of qualified insurance. Any such

19 claim shall be severed by operation of law

20 from claims involving eligible costs or valid

21 contracts of insurance of qualified insurance,

22 and the insured party may proceed with the

23 prosecution of the severed claims not involv24 ing eligible costs or not involving qualified in25 surance.
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1 (c) TERMINATION OF STAY.—(1) The stay es2 tablished by subsection (a) shall terminate

3 with respect to an eligible person upon the

4 earlier of the following:—

5 (A) The rejection of a resolution offer

6 (including an early rejection) by such eli7 gible person pursuant to section 807.

8 (B) A determination by the Fund that

9 an offer will not be made to such eligible

10 person or that such person is not an eligi11 ble person.

12 (C) A determination by the Fund pur13 suant to section 816(b) that the minimum

14 participation level has not been achieved.

15 (D) A failure by the Fund at any time

16 after the date 10 years after the enact17 ment of this Act to timely pay to such eli18 gible person a resolution payment equal

19 to the total amount of eligible costs (in20 cluding shortfalls from prior years) re21 quired to be paid to such person under a

22 resolution offer in any year after such

23 date.

24 (2) The stay established by subsection (a)

25 shall terminate on the date that is 10 years
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1 after the enactment of this Act with respect

2 to:

3 (A) A person that becomes an eligible

4 person on or after such date.

5 (B) An eligible person that has not

6 filed a request for a resolution offer and

7 has not rejected a resolution offer pursu8 ant to section 807(b) before such date.

9 (d) AUTHORITY OF UNITED STATES UNAF10 FECTED.—Nothing in this section shall be con11 strued to limit or affect in any way the discre12 tion or authority of the United States or any

13 party to commerce or continue any allocation

14 process, cost recovery, or other action pursu15 ant to the authority of sections 101 through

16 122a of CERCLA.

17 (e) STATUTE OF LIMITATION TOLLED.—Not18 withstanding any other provision of Federal

19 or State law, any Federal or State statute of

20 limitation concerning the filing or prosecu21 tion of an action by an eligible person against

22 an insurer, or by an insurer against an eligi23 ble person, with respect to eligible costs shall

24 be tolled during the pendency of the stay of

25 pending litigation established by this title.
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1 SEC. 812. REGULATIONS.

2 (a) PROCEDURES AND DOCUMENTATION.—

3 Not later than 120 days after the date of en4 actment of this title, the Fund shall publish in

5 the Federal Register for public comment of

6 not more than 60 days interim final regula7 tions concerning procedures and documenta8 tion for the submission of requests for resolu9 tion offers and the payment of accepted reso10 lution offers. Not later than 60 days after the

11 close of the public comment period, the Fund

12 shall publish in the Federal Register final reg13 ulations concerning such procedures and doc14 umentation, which may be amended by the

15 Fund from time to time. The Fund in its dis16 cretion may require that requests for resolu17 tion offers made before the issuance of final

18 regulations pursuant to this subsection be re19 vised to conform to the requirements of such

20 final regulations.

21 (b) OTHER REGULATIONS.—The Fund may

22 prescribe such other regulations, rules and

23 procedures as the Fund deems appropriate

24 from time to time.

25 (c) JUDICIAL REVIEW.—No regulation, rule

26 or procedure prescribed by the Fund shall be
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1 subject to review by any court except to the

2 extent such regulation, rule or procedure is

3 not consistent with a provision of this title.

4 No resolution offer made by the Fund shall be

5 subject to review by any court.

6 SEC. 813. COURT JURISDICTION AND PENALTIES.

7 (a) JURISDICTION OF FEDERAL COURTS.—

8 Notwithstanding section 1349 of title 28,

9 United States Code:

10 (1) The Fund shall be deemed to be

11 an agency of the United States for pur12 poses of sections 1345 and 1442 of title 28,

13 United States Code.

14 (2) All civil actions to which the Fund

15 is a party shall be deemed to arise under

16 the laws of the United States, and the dis17 trict courts of the United States shall

18 have original jurisdiction of all such ac19 tions, without regard to amount or value.

20 (3) Any civil or other action, case or

21 controversy in a court of a State, or in

22 any court other than a district court of

23 the United States, to which the Fund is a

24 party may at any time before the trial

25 thereof be removed by the Fund, without
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1 the giving of any bond or security, to the

2 district court of the United States for the

3 district and division embracing the place

4 where the same is pending, or, if there is

5 no such district court, to the district

6 court of the United States for the district

7 in which the principal office of the Fund

8 is located, by following any procedure for

9 removal of causes in effect at the time of

10 such removal.

11 (4) No attachment or execution shall

12 be issued against the Fund or any of its

13 property before final judgment in any

14 State, Federal, or other court.

15 (b) FALSE OR FRAUDULENT STATEMENTS OR

16 CLAIMS.—

17 (1) CRIMINAL PENALTIES.—(A) For pur18 poses of section 287 of title 18, United

19 States Code (relating to false claims), the

20 Fund shall be considered an agency of

21 the United States and any officer or em22 ployee of the Fund shall be considered a

23 person in the civil service of the United

24 States.
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1 (B) For purposes of section 1001 of

2 title 18, United States Code (relating to

3 false statements or entries), the Fund

4 shall be considered an agency of the

5 United States.

6 (2) CIVIL PENALTIES.—Officers and em7 ployees of the Fund shall be considered

8 officers and employees of the United

9 States for purposes of section 3729 of title

10 31, United States Code (relating to false

11 claims).

12 SEC. 814. MISCELLANEOUS PROVISIONS.

13 (a) ADMISSIBILITY OF RESOLUTION OFFER.—

14 No resolution offered by the Fund shall be ad15 missible in any legal action brought by an eli16 gible person against an insurer or by an in17 surer against an eligible person.

18 (b) RESOLUTION PROCESS NOT ADMISSION OF

19 LIABILITY.—No provision of this title, and no

20 action by an eligible person undertaken in

21 connection with any provision of this title

22 shall in any way constitute an admission of li23 ability in connection with the disposal of a

24 hazardous substance.
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1 (c) PRECEDENTIAL EFFECT.—No provision

2 of this title shall affect or be construed to es3 tablish a precedent with respect to any insur4 ance dispute between any person and insurer

5 not subject to a stay under this title.

6 (d) SOVEREIGN IMMUNITY OF THE UNITED

7 STATES.—No obligation or liability of the Fund

8 shall constitute an obligation or liability of

9 the United States, or of any department, agen10 cy, instrumentality, officer, or employee

11 thereof. No person shall have a cause of ac12 tion of any kind against the United States, or

13 any department agency, instrumentality, offi14 cer, or employee thereof with respect to any

15 obligation, liability, or activity of the Fund.

16 SEC. 815. REPORTS.

17 (a) REPORT ON POTENTIAL FOR ESCALATION

18 OF EIRF LIABILITY.—Not later than the end of

19 the 5th year after enactment of this title, the

20 President shall submit a report to Congress

21 assessing the potential liability of the Fund

22 over the next 5-year period. The report shall

23 include recommendations for amendments to

24 address any shortfalls between the projected

25 potential liability of the Fund and the
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1 amounts authorized to be raised over such 5-

2 year period.

3 (b) REPORT ON NON-NPL FACILITIES.—The

4 President shall conduct a study of the number

5 of non-NPL facilities and the average cleanup

6 cost per non-NPL facility and shall report his

7 findings not later than 3 years after the date

8 of enactment.

9 (c) ANNUAL REPORTS.—The Fund shall re10 port annually to the President and the Con11 gress not later than January 15 of each year

12 on its activities for the prior fiscal year. The

13 report shall include—

14 (1) a financial statement audited by

15 an independent auditor; and

16 (2) a determination of whether the

17 fees and assessments imposed by section

18 ll of the Internal Revenue Code of 1986

19 will be sufficient to meet the anticipated

20 obligations of the Fund.

21 (d) SPECIAL REPORTS.—The Fund shall

22 promptly report to the President and the Con23 gress at any time the Fund determines that

24 the fees and assessments imposed by section

25 ll of the Internal Revenue Code of 1986 will
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1 be insufficient to meet the anticipated obliga2 tions of the Fund.

3 SEC. 816. EFFECTIVE DATE.

4 (a) IN GENERAL.—This title shall take ef5 fect on the date of enactment of this Act.

6 (b) MINIMUM PARTICIPATION LEVEL BY ELI7 GIBLE PERSONS.—

8 (1) IDENTIFICATION OF LITIGATING ELIGI9 BLE PERSONS.—Each insurance company

10 providing insurance coverage to eligible

11 persons shall submit to the Fund, within

12 30 days after the enactment of this Act, a

13 list of all eligible persons which filed suit

14 against that company for eligible costs

15 prior to the enactment of this Act and

16 shall notify each eligible person which is

17 on the list.

18 (2) REQUESTS FOR APPLICABLE PER19 CENTAGE.—Each eligible person identified

20 on a list under paragraph (1) shall file a

21 request for its applicable percentage (as

22 determined under section 806(b)) with

23 the Fund within 60 days after the enact24 ment of this Act. The Fund shall deter25 mine the applicable percentage of the eli-
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1 gible person and notify the eligible per2 son of such percentage within 90 days of

3 enactment. Each eligible person receiving

4 such notification shall decide whether to

5 accept or reject the applicable percent6 age determination within 135 days of en7 actment. An eligible person which has

8 made an early acceptance or rejection

9 pursuant to section 807(b) shall be

10 deemed to have accepted or rejected its

11 applicable percentage, as the case may

12 be. Any eligible person which does not

13 file such a request within such period,

14 and any eligible person which files such

15 a request and does not reject the applica16 ble percentage determination within 135

17 days after the enactment of this Act, shall

18 be deemed to have accepted the deter19 mination solely for the purposes of this

20 section.

21 (3) MINIMUM PARTICIPATION LEVEL.—

22 Within 150 days after enactment, the

23 Fund shall determine—

24 (A) the number of eligible persons

25 on the list under paragraph (1), and
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1 (B) the weighted average (as de2 termined under paragraph (4)) of

3 such eligible persons,

4 which have accepted or rejected applica5 ble percentage determinations under this

6 subsection. If more than 15 percent of the

7 eligible persons on such list or more than

8 a weighted average of 15 percent of such

9 eligible persons have rejected such deter10 minations, the provisions of this title and

11 the insurance fee provisions of title IX

12 shall cease to have any force and effect,

13 and any fees paid by insurance compa14 nies which have not been utilized for ad15 ministration of the Fund shall be re16 funded to those companies.

17 (4) WEIGHTED AVERAGE.—The weighted

18 average of eligible persons accepting or

19 rejecting applicable percentage deter20 minations shall be determined by mul21 tiplying the acceptances or rejections by

22 eligible persons listed under paragraph

23 (1) times the number of each such per24 son’s eligible facilities (without regard to
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1 whether or not any such is the subject of

2 any lawsuit).

3 SEC. 817. TERMINATION OF AUTHORITY TO OFFER AND AC4 CEPT RESOLUTION.

5 (a) AUTHORITY TO ACCEPT REQUEST FOR

6 RESOLUTION.—The authority of the Fund to ac7 cept requests for resolution shall terminate

8 on the date 10 years after the enactment of

9 this Act.

10 (b) AUTHORITY TO OFFER RESOLUTIONS.—

11 The authority of the Fund to offer resolutions

12 to eligible persons shall terminate after the

13 date 10 years and 180 days after the date of

14 the enactment of this Act.

15 (c) CONTINUING OBLIGATIONS.—Until termi16 nation of the Fund, the Fund shall continue

17 to—

18 (1) make payments pursuant to reso19 lution offers for any eligible facility

20 which is identified at the time of accept21 ance of the resolution offer or within 10

22 years after the enactment of this Act; or

23 (2) reimburse insurers with respect to

24 litigation commenced or continued in

25 connection with a resolution offer made
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1 on or before the date 10 years after the

2 date of the enactment of this Act, where

3 the resolution offer was rejected by an el4 igible person or not acted upon by an eli5 gible person.

6 SEC. 818. TERMINATION OF FUND.

7 If, during any two-year calendar period

8 commencing after the date 10 years after the

9 date of the enactment of this Act, no eligible

10 person makes a claim to the Fund for pay11 ment of eligible costs, the Fund shall termi12 nate, and all amounts remaining in the Fund

13 shall be deposited in the General Fund of the

14 Treasury.

15 TITLE IX—TAXES

16 SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE CODE

17 OF 1986.

18 (a) Section 59A(e)(1) of the Internal Reve19 nue Code of 1986 (26 U.S.C. 59A(e)(1)) is

20 amended by striking ‘‘January 1, 1996’’ and in21 serting instead ‘‘January 1, 2001’’.

22 (b) Section 4611(e) of the Internal Reve23 nue Code of 1986 (26 U.S.C. 4611(e)) is amend24 ed—
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1 (1) in paragraph (1), by striking ‘‘De2 cember 31, 1986’’ and inserting instead

3 ‘‘December 31, 1995’’;

4 (2) in paragraph (2)—

5 (A) by striking ‘‘December 31,

6 1993 or December 31, 1994’’ and in7 serting instead ‘‘December 31, 1998 or

8 December 31, 1999’’;

9 (B) by striking ‘‘December 31, of

10 1994 or 1995, respectively’’ and insert11 ing instead ‘‘December 31 of 1999 or

12 2000, respectively’’; and

13 (C) by striking ‘‘1994 or 1995’’ the

14 last place it appears and inserting in15 stead ‘‘1999 or 2000’’;

16 (3) in paragraph (3)(A), by striking

17 ‘‘January 1, 1987, and ending December

18 31, 1995’’ and inserting instead ‘‘January

19 1, 1996, and ending December 31, 2000’’;

20 and

21 (4) in paragraph (3)(B)—

22 (A) in the title thereof, by striking

23 ‘‘January 1, 1996’’ and inserting ‘‘Jan24 uary 1, 2001’’; and
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1 (B) by striking ‘‘Fund before Jan2 uary 1, 1996’’ and inserting instead

3 ‘‘Fund before January 1, 2001’’.

4 SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON IN5 SURANCE COMPANIES.

6 (a) IN GENERAL.—The Internal Revenue

7 Code of 1986 is amended by inserting after

8 section ll the following new section:

9 ‘‘SEC. . ENVIRONMENTAL FEES AND ASSESSMENTS ON

10 INSURANCE COMPANIES.

11 [RESERVED]

12 (b) CLERICAL AMENDMENTS.—The table of

13 sections for chapter ll of the Internal Reve14 nue Code of 1986 is amended by inserting

15 after the item relating to section ll the fol16 lowing:

‘‘Sec. . Environmental fees and assessments on

insurance companies.’’.

17 SEC. 903. FUNDING PROVISIONS FOR ENVIRONMENTAL IN18 SURANCE RESOLUTION FUND.

19 (A) IN GENERAL.—

20 (1) Except as provided in section

21 802(f)(7) of this Act, all expenditures of

22 the Resolution Fund shall be paid out of

23 the fees and assessments imposed by sec24 tion ll of the Internal Revenue Code.
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1 (2) Except as may be expressly au2 thorized by the Secretary of the Treas3 ury, all funds of the Resolution Fund

4 shall be maintained in the Treasury of

5 the United States. The Secretary may

6 provide for the disbursement of such

7 funds to the Resolution Fund or on be8 half of the Resolution Fund under such

9 procedures, terms and conditions as the

10 Secretary may prescribe.

11 (b) TRANSFER TO RESOLUTION FUND.—The

12 Secretary of the Treasury shall transfer to the

13 Resolution Fund on October 1 of fiscal year

14 1995, 1996, 1997, 1998 and 1999, an amount

15 equal to the fees and assessments anticipated

16 to be collected pursuant to section ll of the

17 Internal Revenue Code of 1986 during the

18 then current fiscal year.

19 (c) ADJUSTMENTS.—In each succeeding fis20 cal year the Secretary of the Treasury shall

21 adjust the amounts transferred pursuant to

22 paragraph (2) to reflect actual collections of

23 fees and assessments during the prior fiscal

24 year, except that with respect to the transfer

25 made on October 1, 1999, the Resolution Fund
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1 shall reimburse the Secretary the amount of

2 such transfer subsequently determined by the

3 Secretary to have exceeded actual collections

4 of fees and assessments during such fiscal

5 year.

6 SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.

7 The Resolution Fund, including its cap8 ital, reserves, surplus, security holdings, and

9 income shall be exempt from all taxation now

10 or hereafter imposed by the United States (in11 cluding any territory, dependency or posses12 sion thereof) or any State, county, municipal13 ity or local taxing authority.

14 TITLE IX—TAXES

15 SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE CODE

16 OF 1986.

17 (a) Section 59A(e)(1) of the Internal Revenue Code

18 of 1986 (26 U.S.C. 59A(e)(1)) is amended by striking

19 ‘‘January 1, 1996’’ and inserting instead ‘‘January 1,

20 2001’’.

21 (b) Section 4611(e) of the Internal Revenue Code of

22 1986 (26 U.S.C. 4611(e)) is amended—

23 (1) in paragraph (1), by striking ‘‘December

24 31, 1986’’ and inserting instead ‘‘December 31,

25 1995’’;
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1 (2) in paragraph (2)—

2 (A) by striking ‘‘December 31, 1993 or

3 December 31, 1994’’ and inserting instead

4 ‘‘December 31, 1998 or December 31, 1999’’;

5 (B) by striking ‘‘December 31, of 1994 or

6 1995, respectively’’ and inserting instead ‘‘De7 cember 31 of 1999 or 2000, respectively’’; and

8 (C) by striking ‘‘1994 or 1995’’ the last

9 place it appears and inserting instead ‘‘1999 or

10 2000’’;

11 (3) in paragraph (3)(A), by striking ‘‘January

12 1, 1987, and ending December 31, 1995’’ and in13 serting instead ‘‘January 1, 1996, and ending De14 cember 31, 2000’’; and

15 (4) in paragraph (3)(B)—

16 (A) in the title thereof, by striking ‘‘Janu17 ary 1, 1996’’ and inserting ‘‘January 1, 2001’’;

18 and

19 (B) by striking ‘‘Fund before January 1,

20 1996’’ and inserting instead ‘‘Fund before Jan21 uary 1, 2001’’.
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1 SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON IN2 SURANCE COMPANIES.

3 (a) IN GENERAL.—The Internal Revenue Code of

4 1986 is amended by inserting after section ll the fol5 lowing new section:

6 ‘‘SEC. . ENVIRONMENTAL FEES AND ASSESSMENTS ON

7 INSURANCE COMPANIES.

8 [RESERVED]

9 (b) CLERICAL AMENDMENTS.—The table of sections

10 for chapter ll of the Internal Revenue Code of 1986

11 is amended by inserting after the item relating to section

12 ll the following:

‘‘Sec. . Environmental fees and assessments on insurance

companies.’’.

13 SEC. 903. FUNDING PROVISIONS FOR ENVIRONMENTAL IN14 SURANCE RESOLUTION FUND.

15 (A) IN GENERAL.—

16 (1) Except as provided in section 802(f)(7) of

17 this Act, all expenditures of the Resolution Fund

18 shall be paid out of the fees and assessments im19 posed by section ll of the Internal Revenue Code.

20 (2) Except as may be expressly authorized by

21 the Secretary of the Treasury, all funds of the Reso22 lution Fund shall be maintained in the Treasury of

23 the United States. The Secretary may provide for

24 the disbursement of such funds to the Resolution
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1 Fund or on behalf of the Resolution Fund under

2 such procedures, terms and conditions as the Sec3 retary may prescribe.

4 (b) TRANSFER TO RESOLUTION FUND.—The Sec5 retary of the Treasury shall transfer to the Resolution

6 Fund on October 1 of fiscal year 1995, 1996, 1997, 1998

7 and 1999, an amount equal to the fees and assessments

8 anticipated to be collected pursuant to section ll of the

9 Internal Revenue Code of 1986 during the then current

10 fiscal year.

11 (c) ADJUSTMENTS.—In each succeeding fiscal year

12 the Secretary of the Treasury shall adjust the amounts

13 transferred pursuant to paragraph (2) to reflect actual

14 collections of fees and assessments during the prior fiscal

15 year, except that with respect to the transfer made on Oc16 tober 1, 1999, the Resolution Fund shall reimburse the

17 Secretary the amount of such transfer subsequently deter18 mined by the Secretary to have exceeded actual collections

19 of fees and assessments during such fiscal year.

20 SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.

21 The Resolution Fund, including its capital, reserves,

22 surplus, security holdings, and income shall be exempt

23 from all taxation now or hereafter imposed by the United

24 States (including any territory, dependency or possession
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1 thereof) or any State, county, municipality or local taxing

2 authority.

3 TITLE IX—ENVIRONMENTAL IN4 SURANCE RESOLUTION

5 TAXES AND TRUST FUND; 5-

6 YEAR EXTENSION OF HAZ7 ARDOUS SUBSTANCE

8 SUPERFUND

9 Subtitle A—Environmental Insur10 ance Resolution Taxes and Trust

11 Fund

12 SEC. 901. ENVIRONMENTAL INSURANCE RESOLUTION

13 TAXES.

14 (a) GENERAL RULE.—Chapter 38 of the In15 ternal Revenue Code of 1986 (relating to envi16 ronmental taxes) is amended by adding at the

17 end the following new subchapter:

18 ‘‘Subchapter E—Environmental Insurance

19 Resolution Taxes

‘‘Part I. Tax on persons with base-period exposure.

‘‘Part II. Tax on current-year premiums.

‘‘Part III. Assessment on insurers resolving claims

with Environmental Insurance Resolution Trust Fund.

‘‘Part IV. Termination; administrative provisions.

20 ‘‘PART I—TAX ON PERSONS WITH BASE-PERIOD

21 EXPOSURE

‘‘Sec. 4691. Imposition of tax.
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‘‘Sec. 4692. Adjusted base-period commercial premiums.

‘‘Sec. 4693. Commercial net premiums.

‘‘Sec. 4694. Other definitions and special rules.

1 ‘‘SEC. 4691. IMPOSITION OF TAX.

2 ‘‘(a) GENERAL RULE.—There is hereby im3 posed on each assessable person engaged in

4 any trade or business during any calendar

5 year a tax for such calendar year equal to the

6 sum of—

7 ‘‘(1)(A) such person’s adjusted base-pe8 riod commercial direct premiums, multi9 plied by

10 ‘‘(B) the applicable direct funding

11 rate, and

12 ‘‘(2)(A) such person’s adjusted base-pe13 riod commercial reinsurance premiums,

14 multiplied by

15 ‘‘(B) the applicable reinsurance fund16 ing rate.

17 ‘‘(b) APPLICABLE FUNDING RATES.—For pur18 poses of subsection (a)—

19 ‘‘(1) APPLICABLE DIRECT FUNDING

20 RATE.—The applicable direct funding rate

21 is—

22 ‘‘(A) 0.22 percent for 1995, 1996,

23 1997, and 1998, and
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1 ‘‘(B) zero thereafter.

2 ‘‘(2) APPLICABLE REINSURANCE FUNDING

3 RATE.—The applicable reinsurance fund4 ing rate is—

5 ‘‘(A) 0.83 percent for 1995, 1996,

6 1997, and 1998, and

7 ‘‘(B) 0.14 percent thereafter.

8 ‘‘(c) ADJUSTED DIRECT AND REINSURANCE

9 PREMIUMS.—For purposes of subsection (a)—

10 ‘‘(1) ADJUSTED BASE-PERIOD COMMER11 CIAL DIRECT PREMIUMS.—The term ‘ad12 justed base-period commercial direct pre13 miums’ means an amount equal to the

14 percentage of the aggregate adjusted

15 base-period commercial premiums which

16 is the same percentage as the percentage

17 of the sum described in section 4692(a)(1)

18 which is attributable to net premiums

19 written from qualified commercial poli20 cies (other than reinsurance policies).

21 ‘‘(2) ADJUSTED BASE-PERIOD COMMER22 CIAL REINSURANCE PREMIUMS.—The term

23 ‘adjusted base-period commercial reinsur24 ance premiums’ means adjusted base-pe25 riod commercial premiums which are not
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1 adjusted base-period commercial direct

2 premiums.

3 ‘‘(d) TIME FOR PAYMENT OF TAX.—

4 ‘‘(1) MONTHLY INSTALLMENTS.—The tax

5 imposed by subsection (a) on any assess6 able person for any calendar year shall be

7 paid in equal monthly installments dur8 ing such calendar year.

9 ‘‘(2) DUE DATE FOR INSTALLMENT.—Any

10 installment under paragraph (1) for any

11 month shall be paid on or before the last

12 day of such month.

13 ‘‘(e) ASSESSABLE PERSON.—For purposes of

14 this part, the term ‘assessable person’ means

15 any person—

16 ‘‘(1) which has commercial net pre17 miums for any base-period year; and

18 ‘‘(2) which is—

19 ‘‘(A) a United States person, or

20 ‘‘(B) a person (other than a United

21 States person) if—

22 ‘‘(i) such person, during the

23 calendar year for which the tax

24 would be assessed, is engaged in
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1 any trade or business within the

2 United States, and

3 ‘‘(ii) such person’s taxable in4 come which is effectively con5 nected with the conduct of such

6 business is taxed under section

7 871(b) or 882(a) and is not exempt

8 from such tax under a treaty obli9 gation of the United States.

10 ‘‘SEC. 4692. ADJUSTED BASE-PERIOD COMMERCIAL PRE11 MIUMS.

12 ‘‘(a) GENERAL RULE.—For purposes of this

13 part, the adjusted base-period commercial pre14 miums of any person is the excess (if any) of—

15 ‘‘(1) the sum of the inflation-adjusted

16 commercial premiums of such person for

17 each base-period year, over

18 ‘‘(2) the exemption amount.

19 ‘‘(b) INFLATION-ADJUSTED COMMERCIAL PRE20 MIUMS.—For purposes of this part, the infla21 tion-adjusted commercial premiums of any

22 person for any base-period year shall be an

23 amount equal to the commercial net premiums

24 of such person for such base-period year multi-
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1 plied by the inflation adjustment factor for

2 such base-period year.

3 ‘‘(c) INFLATION ADJUSTMENT FACTOR.—

‘‘In the case of the following The inflation

base-period years: adjustment factor is:

1968 ................................................................................ 3.09

1969 ................................................................................ 2.93

1970 ................................................................................ 2.77

1971 ................................................................................ 2.66

1972 ................................................................................ 2.57

1973 ................................................................................ 2.42

1974 ................................................................................ 2.18

1975 ................................................................................ 2.00

1976 ................................................................................ 1.89

1977 ................................................................................ 1.78

1978 ................................................................................ 1.65

1979 ................................................................................ 1.48

1980 ................................................................................ 1.31

1981 ................................................................................ 1.18

1982 ................................................................................ 1.12

1983 ................................................................................ 1.08

1984 ................................................................................ 1.04

1985 ................................................................................ 1.00

4 ‘‘(d) EXEMPTION AMOUNT.—For purposes of

5 this section—

6 ‘‘(1) IN GENERAL.—The exemption

7 amount for any person is $50,000,000.

8 ‘‘(2) AGGREGATION RULES.—For pur9 poses of paragraph (1)—

10 ‘‘(A) IN GENERAL.—All persons

11 treated as a single employer as of Feb12 ruary 2, 1994, under subsection (a) or

13 (b) of section 52 shall be treated as 1

14 person.

15 ‘‘(B) JOINT UNDERWRITING.—
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1 ‘‘(i) IN GENERAL.—In the case of

2 any joint underwriting operation

3 of insurance or reinsurance—

4 ‘‘(I) under which the par5 ticipating persons assume a

6 portion of the business written

7 and share pro rata in the pre8 miums, losses, expenses, and

9 profits, and

10 ‘‘(II) which is under the

11 management of 1 or more

12 managing underwriters,

13 such participating persons as of

14 February 2, 1994, shall be treated

15 as 1 person.

16 ‘‘(ii) COMMONLY GOVERNED UN17 DERWRITING OPERATIONS.—If more

18 than 1 operation referred to in

19 clause (i) is governed by a com20 mon board of directors, council, or

21 similar body, all such operations

22 shall be treated as 1 operation for

23 purposes of clause (i).

24 ‘‘(iii) CERTAIN CLOSING AGREE25 MENTS.—If any person participat-
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1 ing in a joint underwriting oper2 ation is subject to a closing agree3 ment as of February 2, 1994, with

4 respect to such operation, such

5 person and all other persons sub6 ject to such agreement shall be

7 treated as 1 person.

8 ‘‘(C) ALLOCATION OF EXEMPTION

9 AMOUNT.—The exemption amount de10 termined under paragraph (1) shall

11 be allocated among persons treated as

12 1 person—

13 ‘‘(i) under subparagraph (A)

14 or (B)(i) in proportion to each

15 such person’s respective share of

16 the aggregate of the amounts de17 scribed in subsection (a)(1) of all

18 such persons, and

19 ‘‘(ii) in any other case, using

20 any other method prescribed by

21 the Secretary.

22 ‘‘SEC. 4693. COMMERCIAL NET PREMIUMS.

23 ‘‘(a) GENERAL RULE.—For purposes of this

24 part, the commercial net premiums of any per25 son for any base-period year is the sum of—
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1 ‘‘(1) the net premiums written for such

2 base-period year from qualified commer3 cial policies (other than reinsurance poli4 cies),

5 ‘‘(2) the net premiums written for such

6 year from allocated reinsurance of quali7 fied commercial policies, and

8 ‘‘(3) 21 percent of the net premiums

9 written for such year from unallocated re10 insurance.

11 Commercial net premiums shall be determined

12 by taking into account only premiums attrib13 utable to insurance or reinsurance against, or

14 with respect to, hazards, risks, losses, or liabil15 ities within the United States.

16 ‘‘(b) QUALIFIED COMMERCIAL POLICIES.—For

17 purposes of this subchapter—

18 ‘‘(1) IN GENERAL.—The term ‘qualified

19 commercial policy’ means any insurance

20 policy against, or with respect to, haz21 ards, risks, losses, or liabilities within the

22 United States if premiums or liabilities

23 under such policy—

24 ‘‘(A) are of a type required to be

25 reported in the line of the underwrit-
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1 ing and investment exhibit of the an2 nual statement relating to the com3 mercial multiple peril line of busi4 ness, or

5 ‘‘(B) are of a type required to be

6 reported in the line of the underwrit7 ing and investment exhibit of the an8 nual statement relating to the other

9 liability line of business.

10 ‘‘(2) EXCLUSION OF CERTAIN TYPES OF

11 POLICIES.—Subparagraph (B) of para12 graph (1) shall not apply to—

13 ‘‘(A) any policy providing only

14 noncommercial coverage, or

15 ‘‘(B) any other policy which pro16 vides neither comprehensive general

17 liability coverage nor environmental

18 liability coverage.

19 ‘‘(c) ALLOCATED REINSURANCE.—For pur20 poses of this part, the term ‘allocated reinsur21 ance’ means any reinsurance the net pre22 miums written for which were reported on the

23 underwriting and investment exhibit of the an24 nual statement by the line of business related

25 to the underlying policies covered by such rein-
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1 surance (or, in the case of a person not filing

2 an annual statement, would have been re3 quired to be so reported) and were not reported

4 as part of the reinsurance line of business.

5 ‘‘(d) UNALLOCATED REINSURANCE.—For pur6 poses of this part, the term ‘unallocated rein7 surance’ means any reinsurance the net pre8 miums written for which were reported in the

9 line of the underwriting and investment ex10 hibit of the annual statement relating to the

11 reinsurance line of business (or, in the case of

12 a person not filing an annual statement,

13 would have been required to be so reported).

14 ‘‘(e) REINSURANCE BY RELATED PARTY

15 TREATED AS NOT REINSURANCE.—For purposes

16 of this part, if, with respect to a policy of rein17 surance, the reinsurer and the reinsured are

18 members of the same controlled group, pre19 miums written on such reinsurance shall be

20 treated as premiums described in section

21 4693(a)(1) and not as premiums written on re22 insurance. For purposes of the preceding sen23 tence, the term ‘controlled group’ means all

24 persons treated as a single employer under sec25 tion 52(a), and, to the extent provided by the
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1 Secretary, all persons who are commonly man2 aged by the same corporation.

3 ‘‘SEC. 4694. OTHER DEFINITIONS AND SPECIAL RULES.

4 ‘‘(a) GENERAL DEFINITIONS.—For purposes

5 of this part—

6 ‘‘(1) BASE PERIOD.—

7 ‘‘(A) IN GENERAL.—The term ‘base

8 period’ means the 18-calendar year pe9 riod beginning with calendar year

10 1968 and ending with calendar year

11 1985.

12 ‘‘(B) BASE-PERIOD YEAR.—The term

13 ‘base-period year’ means any calendar

14 year in the base period.

15 ‘‘(2) NET PREMIUMS WRITTEN.—

16 ‘‘(A) IN GENERAL.—The determina17 tion of the net premiums written of

18 any person for any year shall be made

19 on the basis of the underwriting and

20 investment exhibit of the annual state21 ment filed by such person for such

22 year (or, if such person did not file

23 such a statement, the determination

24 shall be made on a basis consistent
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1 with the annual statement require2 ments applicable to such year).

3 ‘‘(B) AMOUNTS MAY BE LESS THAN

4 ZERO.—The amount taken into ac5 count as the net premiums written

6 with respect to any type of policy for

7 any year may be less than zero.

8 ‘‘(3) ANNUAL STATEMENT.—The term

9 ‘annual statement’ means the annual

10 statement approved by the National Asso11 ciation of Insurance Commissioners

12 which is required to be filed with the in13 surance regulatory authorities of a State.

14 If any person was required to file an an15 nual statement with the authorities of 2

16 or more different States for any base-pe17 riod year, the annual statement used for

18 purposes of this part shall be the annual

19 statement in which the net premiums

20 written related to reinsurance were re21 ported and identified in the most specific

22 manner in the underwriting and invest23 ment exhibit.

24 ‘‘(4) POLICY.—The term ‘policy’ in25 cludes any policy or other instrument by
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1 whatever name called whereby a contract

2 of insurance or reinsurance is made, con3 tinued, or renewed.

4 ‘‘(5) UNITED STATES.—

5 ‘‘(A) IN GENERAL.—The term

6 ‘United States’, when used in a geo7 graphical sense, has the meaning

8 given such term by section 4612(a)(4).

9 ‘‘(B) UNITED STATES PERSON.—Sub10 paragraph (A) shall not apply for pur11 poses of determining whether any per12 son is a United States person.

13 ‘‘(b) SPECIAL RULE FOR INSURERS NOT RE14 QUIRED TO FILE ANNUAL STATEMENT.—If any

15 person—

16 ‘‘(1) was not required to file an an17 nual statement for any year,

18 ‘‘(2) establishes to the satisfaction of

19 the Secretary that, despite the best efforts

20 of such person, such person has inad21 equate records to make determinations

22 consistent with the annual statement re23 porting requirements of this part for such

24 year, and
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1 ‘‘(3) provides, in a manner acceptable

2 to the Secretary, a reasonable estimate of

3 such determinations,

4 then such person shall be treated as meeting

5 such requirements for such year.

6 ‘‘(c) ADJUSTMENT FOR CERTAIN ACQUISI7 TIONS, ETC.—Except as otherwise provided by

8 the Secretary—

9 ‘‘(1) ACQUISITIONS.—If, after the begin10 ning of the base period, a person acquires

11 any portion of a commercial insurance

12 business of another person (hereinafter in

13 this subsection referred to as the ‘prede14 cessor’), the inflation-adjusted commer15 cial premiums of the acquiring person

16 shall include the inflation-adjusted com17 mercial premiums of such predecessor

18 which are attributable to the portion of

19 such insurance business so acquired.

20 ‘‘(2) DISPOSITIONS.—If, after the begin21 ning of the base period—

22 ‘‘(A) a person disposes of any por23 tion of a commercial insurance busi24 ness in a transaction to which para25 graph (1) applies, and
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1 ‘‘(B) such person furnishes the ac2 quiring person with such information

3 as is necessary for the application of

4 paragraph (1),

5 then the inflation-adjusted commercial

6 premiums of the person making such dis7 position shall be reduced by the portion of

8 such premiums attributable to the portion

9 of such insurance business involved in

10 such disposition.

11 ‘‘(3) TREATMENT OF REINSURANCE

12 TRANSACTIONS.—For purposes of this sub13 section—

14 ‘‘(A) IN GENERAL.—Except as other15 wise provided in this paragraph, a re16 insurance transaction shall not be

17 treated as the disposition of a portion

18 of an insurance business by the rein19 sured nor as an acquisition of such a

20 portion by the reinsurer if, as a result

21 of such transaction, there is—

22 ‘‘(i) a reduction in the net pre23 miums written of the reinsured,

24 and
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1 ‘‘(ii) an increase (in an

2 amount equal to the amount of

3 such reduction) in the net pre4 miums written of the reinsurer.

5 ‘‘(B) TREATMENT OF CERTAIN REIN6 SURANCE TRANSACTIONS.—If, after De7 cember 31, 1985, and before February

8 2, 1994, any person transferred any in9 surance business in an assumption re10 insurance transaction with respect to

11 qualified commercial policies that

12 were issued during the base period

13 whereby the reinsurer becomes di14 rectly liable on the qualified commer15 cial policies transferred, such trans16 action shall be treated for purposes of

17 paragraphs (1) and (2) as a disposi18 tion of a portion of a commercial in19 surance business by the reinsured and

20 as an acquisition of such a portion by

21 the reinsurer.

22 ‘‘(C) TREATMENT OF CERTAIN TERMI23 NATIONS OF REINSURANCE TRANS24 ACTIONS.—If, after the beginning of the

25 base period and before February 2,
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1 1994, a reinsurance transaction with

2 respect to qualified commercial poli3 cies is terminated in accordance with

4 a commutation agreement whereby

5 the reinsurer is no longer liable for

6 any potential claim under the reinsur7 ance agreement, the determination of

8 the adjusted base-period commercial

9 premiums of the reinsured and the re10 insurer shall be made as if such rein11 surance transaction had not occurred.

12 ‘‘(4) SPECIAL RULES.—

13 ‘‘(A) ADJUSTMENT OF ADJUSTED

14 BASE-PERIOD PREMIUMS FOR ACQUISI15 TIONS AND DISPOSITIONS ON OR AFTER

16 FEBRUARY 2, 1994.—In the case of an ac17 quisition or disposition on or after

18 February 2, 1994, paragraphs (1) and

19 (2) shall be applied by substituting

20 ‘adjusted base-period commercial pre21 miums’ for ‘inflation-adjusted com22 mercial premiums’ each place it ap23 pears.

24 ‘‘(B) TIMING OF EFFECT OF TRANS25 ACTIONS ON COMPUTATION OF TAXES.—If
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1 any acquisition or disposition referred

2 to in paragraph (1) or (2) occurs after

3 December 31, 1994, the provisions of

4 this subsection shall apply only for

5 purposes of determining the amount

6 of the tax imposed by section 4691 for

7 calendar years beginning after the

8 date of such transaction.

9 ‘‘(C) DETERMINATION OF PREMIUMS

10 ATTRIBUTABLE TO PORTION OF INSUR11 ANCE BUSINESS.—The determination of

12 inflation-adjusted commercial pre13 miums and adjusted base-period com14 mercial premiums attributable to the

15 transferred portion of a commercial

16 insurance business shall be made

17 based on the ratio of assets trans18 ferred in connection with the commer19 cial insurance business to total assets

20 of the transferor immediately before

21 such transfer.

22 ‘‘(D) TRANSFERORS REMAIN SEC23 ONDARILY LIABLE.—Notwithstanding

24 any reduction in the inflation-ad25 justed commercial premiums or ad-
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1 justed base-period commercial pre2 miums of any person by reason of the

3 disposition of any portion of such per4 son’s commercial insurance business,

5 such person shall be secondarily lia6 ble for the tax imposed by section 4691

7 with respect to the adjusted base-pe8 riod commercial premiums attrib9 utable to such portion.

10 ‘‘(E) COMMERCIAL INSURANCE BUSI11 NESS.—For purposes of this subsection,

12 the term ‘commercial insurance busi13 ness’ means any liability or potential

14 liability under any policy with respect

15 to which commercial net premiums

16 were written and the assets associated

17 with such a liability.

18 ‘‘(d) TREATMENT OF FOREIGN INSURERS.—

19 ‘‘(1) IN GENERAL.—There is hereby im20 posed a tax on any policy described in

21 paragraph (2) on which any premium is

22 written by a foreign person. Such tax

23 shall be an amount equal to 0.50 percent

24 of the maximum limit of liability of such

25 person under such policy.
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1 ‘‘(2) POLICIES SUBJECT TO TAX.—For

2 purposes of paragraph (1), a policy is de3 scribed in this paragraph if such policy

4 is—

5 ‘‘(A) a policy of casualty insurance

6 against, or with respect to, hazards,

7 risks, losses, or liabilities wholly or

8 partly within the United States, or

9 ‘‘(B) a policy of reinsurance with

10 respect to a policy described in sub11 paragraph (A).

12 ‘‘(3) EXCEPTIONS.—

13 ‘‘(A) IN GENERAL.—Paragraph (1)

14 shall not apply to any policy if the for15 eign person writing the premium on

16 such policy is an assessable person (as

17 defined in section 4691(e)) as of the

18 withholding date.

19 ‘‘(B) PRIOR TRANSACTIONS.—Para20 graph (1) shall not apply to any policy

21 if, as of the withholding date, the for22 eign person writing the premium on

23 such policy demonstrates that the tax

24 imposed by paragraph (1) has been

25 paid on a policy covering the same
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1 hazards, risks, losses, or liabilities

2 within the United States as those cov3 ered by such policy.

4 ‘‘(C) CLOSING AGREEMENT.—

5 ‘‘(i) IN GENERAL.—Paragraph

6 (1) shall not apply to any policy if,

7 as of the withholding date, the for8 eign person writing the premium

9 on such policy has in effect an

10 agreement with the Secretary

11 which—

12 ‘‘(I) provides that such

13 person shall be treated as an

14 assessable person for purposes

15 of this part, and

16 ‘‘(II) contains such provi17 sions as the Secretary deter18 mines to be necessary to en19 sure proper computation and

20 payment of the tax imposed by

21 section 4691 and the assess22 ment imposed by section 4696.

23 ‘‘(ii) PERIOD OF AGREEMENT.—

24 Any closing agreement entered

25 into under clause (i) shall take ef-
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1 fect on the date specified in such

2 agreement and shall apply for all

3 subsequent periods unless revoked

4 by the Secretary or revoked by the

5 foreign person with the consent of

6 the Secretary.

7 ‘‘(iii) TREATMENT OF RELATED

8 PERSONS.—The Secretary shall not

9 enter into an agreement under

10 clause (i) with any foreign person

11 unless such foreign person estab12 lishes to the satisfaction of the

13 Secretary that all persons which

14 are, or become, related persons to

15 such foreign person and which

16 have commercial net premiums for

17 any base-period year are subject to

18 such an agreement.

19 ‘‘(iv) CLOSING AGREEMENT NOT

20 REQUIRED IN CERTAIN CASES.—No

21 closing agreement shall be re22 quired to be filed by any person

23 filing a statement referred to in

24 subparagraph (E).
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1 ‘‘(D) PERIOD BEFORE CLOSING

2 AGREEMENT.—Paragraph (1) shall not

3 apply to any policy if, as of the with4 holding date, the foreign person writ5 ing the premium on such policy—

6 ‘‘(i) has in effect an election to

7 be treated as an assessable person

8 for purposes of this part,

9 ‘‘(ii) gives such bond or other

10 security as the Secretary may re11 quire for the collection of any tax

12 imposed by section 4691 and any

13 assessment imposed by section

14 4696, and

15 ‘‘(iii) meets such other require16 ments as the Secretary may re17 quire.

18 If such person fails to enter into an

19 agreement referred to in subpara20 graph (C)(i) in a timely manner after

21 making such election, such election

22 shall be treated as never being in ef23 fect.

24 ‘‘(E) NO ADJUSTED BASE-PERIOD

25 COMMERCIAL PREMIUMS.—Paragraph
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1 (1) shall not apply to any policy if, as

2 of the withholding date, the foreign

3 person writing the premium on such

4 policy has filed with the Secretary a

5 statement (which meets such require6 ments as may be prescribed by the Sec7 retary) certifying under penalties of

8 perjury that it has no adjusted base9 period commercial premiums. Any

10 such statement shall remain in effect

11 only so long as such person does not

12 have any adjusted base-period com13 mercial premiums.

14 ‘‘(F) WITHHOLDING DATE.—The term

15 ‘withholding date’ means the date as

16 of which an amount would otherwise

17 be required to be deducted or withheld

18 under paragraph (5) with respect to

19 any policy.

20 ‘‘(4) DEFINITIONS.—For purposes of this

21 subsection—

22 ‘‘(A) FOREIGN PERSON.—The term

23 ‘foreign person’ means any person

24 which is not a United States person.
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1 ‘‘(B) POLICY OF CASUALTY INSUR2 ANCE.—The term ‘policy of casualty in3 surance’ means any policy other than

4 a policy of life, sickness, or accident

5 insurance, or annuity contract (as de6 fined in section 4372(e)).

7 ‘‘(C) RELATED PERSON.—The term

8 ‘related person’ has the meaning given

9 such term by section 954(d)(3), except

10 that such section shall be applied by

11 substituting ‘the person with respect

12 to whom the determination is being

13 made’ for ‘controlled foreign corpora14 tion’ each place it appears.

15 ‘‘(D) MAXIMUM LIMIT OF LIABILITY.—

16 The term ‘maximum limit of liability’

17 means the total amount for which the

18 foreign person would be liable—

19 ‘‘(i) in the case of a policy de20 scribed in paragraph (2)(A), if

21 each person insured under such

22 policy were simultaneously enti23 tled to the maximum recovery al24 lowed under the policy, and
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1 ‘‘(ii) in the case of a policy de2 scribed in paragraph (2)(B), if

3 each person insured under a pol4 icy described in paragraph (2)(A)

5 which is directly or indirectly re6 insured by the policy described in

7 paragraph (2)(B) were simulta8 neously entitled to the maximum

9 recovery allowed under the policy

10 described in paragraph (2)(A).

11 Such maximum limit of liability shall

12 not be reduced by any liability which

13 is reinsured.

14 ‘‘(5) COLLECTION OF TAX.—All persons,

15 in whatever capacity acting, having con16 trol, receipt, custody, disposal, or payment

17 of any premium or other amount for any

18 policy on which a tax is imposed under

19 paragraph (1) shall deduct and withhold

20 from such premium or other amount the

21 amount of such tax. Every person required

22 to so deduct and withhold such tax is

23 hereby made liable for such tax and is

24 hereby indemnified against the claims
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1 and demands of any person for the

2 amount so deducted and withheld.

3 ‘‘(e) CERTAIN PERSONS TREATED AS EN4 GAGED IN TRADE OR BUSINESS.—For purposes of

5 this part, a person shall be treated as engaged

6 in a trade or business if any other person, who

7 with such person is treated as a single em8 ployer under subsection (a) or (b) of section 52,

9 is engaged in a trade or business.

10 ‘‘PART II—TAX ON CURRENT-YEAR PREMIUMS

‘‘Sec. 4695. Tax on current-year premiums.

11 ‘‘SEC. 4695. TAX ON CURRENT-YEAR PREMIUMS.

12 ‘‘(a) IMPOSITION OF TAX.—There is hereby

13 imposed on each policy described in subsection

14 (b) a tax equal to—

15 ‘‘(1) the direct premiums written

16 under such policy, multiplied by

17 ‘‘(2) the applicable funding rate.

18 ‘‘(b) POLICIES SUBJECT TO TAX.—

19 ‘‘(1) IN GENERAL.—A policy is described

20 in this subsection if—

21 ‘‘(A) such policy is issued against,

22 or with respect to, hazards, risks,

23 losses, or liabilities wholly or partly
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1 within the United States (as defined

2 in section 4612(a)(4)), and

3 ‘‘(B) the premiums or liabilities

4 under such policy are of a type re5 quired to be reported in the line of the

6 exhibit of premiums and losses of the

7 annual statement relating to any of

8 the following lines of business:

9 ‘‘(i) Fire.

10 ‘‘(ii) Commercial multiple

11 peril.

12 ‘‘(iii) Other liability.

13 ‘‘(iv) Products liability.

14 ‘‘(v) Allied lines.

15 ‘‘(vi) Inland marine.

16 ‘‘(vii) Commercial auto no17 fault.

18 ‘‘(viii) Other commercial auto

19 liability.

20 ‘‘(ix) Commercial auto phys21 ical damage.

22 ‘‘(x) Farmowners multiple

23 peril.

24 ‘‘(xi) Ocean marine.

25 ‘‘(xii) Financial guaranty.
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1 ‘‘(xiii) Aircraft.

2 ‘‘(xiv) Fidelity.

3 ‘‘(xv) Surety.

4 ‘‘(xvi) Glass.

5 ‘‘(xvii) Burglary and theft.

6 ‘‘(xviii) Boiler and machinery.

7 ‘‘(xix) Any other line des8 ignated by the Secretary.

9 ‘‘(2) EXCEPTION.—Paragraph (1) shall

10 not apply to any policy which the issuer

11 establishes is of any of the following types

12 of insurance:

13 ‘‘(A) Directors and officers liabil14 ity insurance.

15 ‘‘(B) Professional liability insur16 ance.

17 ‘‘(C) Fire insurance on residential

18 or farm owner-occupied housing units.

19 ‘‘(3) ANNUAL STATEMENT; POLICY.—For

20 purposes of this section, the terms ‘annual

21 statement’ and ‘policy’ have the respective

22 meanings given such terms by section

23 4694(a). The provisions of section 4694(b)

24 shall apply for purposes of this section.
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1 ‘‘(c) APPLICABLE FUNDING RATE.—For pur2 poses of this section, the applicable funding

3 rate is—

4 ‘‘(1) 0.33 percent for direct premiums

5 written during 1995, 1996, 1997, or 1998,

6 and

7 ‘‘(2) 0.63 percent thereafter.

8 ‘‘(d) EXEMPTION AMOUNT.—

9 ‘‘(1) IN GENERAL.—No tax shall be im10 posed by subsection (a) on any premium

11 under a policy to which subsection (b) ap12 plies which is included in direct pre13 miums written during any calendar year

14 to the extent that the amount of such pre15 mium, when added to the aggregate

16 amount of all prior direct premiums writ17 ten on such policies during such calendar

18 year, does not exceed the exemption

19 amount.

20 ‘‘(2) EXEMPTION AMOUNT.—For pur21 poses of paragraph (1)—

22 ‘‘(A) IN GENERAL.—The exemption

23 amount for any person is $5,000,000.

24 ‘‘(B) CONTROLLED GROUP RULES.—

25 For purposes of subparagraph (A)—
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1 ‘‘(i) IN GENERAL.—The rules of

2 subparagraphs (A) and (B)(i) of

3 section 4692(d)(2) shall apply (de4 termined without regard to the

5 date therein).

6 ‘‘(ii) REGULATIONS.—The Sec7 retary may by regulations treat

8 multiple arrangements (including

9 multiple joint underwriting oper10 ations) as 1 arrangement where

11 the separate operation of such ar12 rangements is without a substan13 tial business purpose.

14 ‘‘(e) DIRECT PREMIUMS WRITTEN.—For pur15 poses of this section, the determination of the

16 direct premiums written of any person for any

17 year shall be made on the basis of the exhibit

18 of premiums and losses of the annual state19 ment filed by such person for such year (or, if

20 such person did not file such a statement, the

21 determination shall be made on a basis con22 sistent with the annual statement require23 ments applicable to such year). Notwithstand24 ing the preceding sentence, direct premiums

25 written shall include the gross amount of pre-
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1 miums and other consideration (including ad2 vance premiums, deposits, fees, and assess3 ments) arising from policies issued by a person

4 acting as the direct writer, adjusted for any re5 turn or additional premiums arising from en6 dorsements, cancellations, premium audits, or

7 retrospective rating. Amounts returned where

8 the amount is not fixed in the contract by for9 mula or otherwise but depends on the experi10 ence of the insurer or the discretion of man11 agement shall not be included in return pre12 miums.

13 ‘‘(f) LIABILITY FOR TAX.—

14 ‘‘(1) IN GENERAL.—Except as provided

15 in paragraph (2)—

16 ‘‘(A) TAX PAID BY ISSUER.—The tax

17 imposed by subsection (a) shall be

18 paid by the person issuing the policy.

19 ‘‘(B) DUE DATE.—Any tax payable

20 under subparagraph (A) shall be paid

21 on or before the 14th day after the

22 close of the calendar quarter in which

23 the premium is included in direct pre24 miums written.
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1 ‘‘(C) DEPOSITS REQUIRED.—Any is2 suer liable for tax payable under sub3 paragraph (A) shall make monthly de4 posits of such tax on or before the 14th

5 day after the close of the month in

6 which the premium is included in di7 rect premiums written.

8 ‘‘(2) SPECIAL RULES FOR FOREIGN INSUR9 ERS.—

10 ‘‘(A) IN GENERAL.—If any premium

11 is written by a foreign person (as de12 fined in section 4694(d)(4)) on any pol13 icy described in subsection (b), all per14 sons, in whatever capacity acting,

15 having control, receipt, custody, dis16 posal, or payment of any premium or

17 other amount for such policy shall de18 duct and withhold from such pre19 mium or other amount the amount of

20 the tax imposed by subsection (a).

21 Every person required to so deduct

22 and withhold such tax is hereby made

23 liable for such tax and is hereby in24 demnified against the claims and de-
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1 mands of any person for the amount

2 so deducted and withheld.

3 ‘‘(B) EXCEPTION.—Subparagraph

4 (A) shall not apply with respect to any

5 premium or other amount the income

6 from which is effectively connected

7 with the conduct of a trade or busi8 ness within the United States, unless

9 such income is exempt from the appli10 cation of sections 871(b) and 882(a)

11 pursuant to a treaty obligation of the

12 United States.

13 ‘‘PART III—ASSESSMENT ON INSURERS RESOLV14 ING CLAIMS WITH ENVIRONMENTAL INSUR15 ANCE RESOLUTION TRUST FUND

‘‘Sec. 4696. Imposition of assessment.

16 ‘‘SEC. 4696. IMPOSITION OF ASSESSMENT.

17 ‘‘(a) IN GENERAL.—There is hereby imposed

18 on each insurer to which this section applies

19 an assessment for each calendar year in the

20 amount determined under subsection (c).

21 ‘‘(b) INSURERS TO WHICH SECTION AP22 PLIES.—This section shall apply to any insurer

23 for any calendar year if such insurer issued

24 any policy which, for such calendar year, is —
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1 ‘‘(1) an assessable direct policy, or

2 ‘‘(2) an assessable reinsurance policy.

3 ‘‘(c) AMOUNT OF ASSESSMENT.—

4 ‘‘(1) IN GENERAL.—The assessment im5 posed by this section on any insurer for

6 any calendar year shall be an amount

7 equal to the sum of—

8 ‘‘(A) such insurer’s EIRF-certified

9 percentage of the direct insurance

10 limit, and

11 ‘‘(B) such insurer’s EIRF-certified

12 percentage of the reinsurance limit.

13 ‘‘(2) LIMITS.—For purposes of para14 graph (1)—

15 ‘‘(A) the direct insurance limit for

16 each calendar year is $81,000,000, and

17 ‘‘(B) the reinsurance limit for each

18 calendar year is $167,000,000.

19 ‘‘(d) TIME FOR PAYMENT OF ASSESSMENT.—

20 The assessment imposed by subsection (a) for

21 any calendar year shall be paid on or before

22 September 30 of such calendar year.

23 ‘‘(e) DEFINITIONS.—For purposes of this sec24 tion—
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1 ‘‘(1) ASSESSABLE DIRECT POLICY.—The

2 term ‘assessable direct policy’ means, for

3 any calendar year, any policy if—

4 ‘‘(A) the Environmental Insurance

5 Resolution Fund determined that such

6 policy was a valid insurance contract

7 of an eligible person,

8 ‘‘(B) such contract (or documen9 tary evidence of such contract) was

10 submitted (whether or not within the

11 calendar year or the applicable pe12 riod with respect thereto) under sec13 tion 804 of the Superfund Reform Act

14 of 1994 to such Fund by or for such el15 igible person, and

16 ‘‘(C) such Fund, during the appli17 cable period with respect to such cal18 endar year, made 1 or more payments

19 to such eligible person under title VIII

20 of such Act.

21 ‘‘(2) ASSESSABLE REINSURANCE POL22 ICY.—The term ‘assessable reinsurance

23 policy’ means, for any calendar year, any

24 policy if—
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1 ‘‘(A) such contract is identified

2 under paragraph (5)(G)(ii) as reinsur3 ing a policy which is an assessable di4 rect policy for such calendar year,

5 ‘‘(B) the Environmental Insurance

6 Resolution Fund notifies the issuer of

7 such policy that it has been so identi8 fied,

9 ‘‘(C) such issuer is an assessable

10 person (as defined in section 4692(e))

11 or is treated as such for purposes of

12 part I, and

13 ‘‘(D) such Fund determines (after

14 affording such insurer an opportunity

15 to contest such reinsurance) that such

16 contract reinsures an assessable di17 rect policy.

18 ‘‘(3) EIRF-CERTIFIED PERCENTAGE.—

19 ‘‘(A) APPLICATION WITH DIRECT

20 LIMIT.—The term ‘EIRF-certified per21 centage’ means, with respect to the di22 rect limit of any insurer for any cal23 endar year, the percentage determined

24 by the Environmental Insurance Reso25 lution Fund which—
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1 ‘‘(i) the aggregate of the cov2 erage limits contained in assess3 able direct policies issued by such

4 insurer, bears to

5 ‘‘(ii) the aggregate of the cov6 erage limits contained in all as7 sessable direct policies issued by

8 all insurers.

9 ‘‘(B) APPLICATION WITH REINSUR10 ANCE LIMIT.—The term ‘EIRF-certified

11 percentage’ means, with respect to the

12 reinsurance limit of any insurer for

13 any calendar year, the percentage de14 termined by the Environmental Insur15 ance Resolution Fund which—

16 ‘‘(i) the aggregate of the cov17 erage limits contained in assess18 able reinsurance policies issued by

19 such insurer, bears to

20 ‘‘(ii) the aggregate of the cov21 erage limits contained in all as22 sessable reinsurance policies is23 sued by all insurers.

24 ‘‘(4) APPLICABLE PERIOD.—The term

25 ‘applicable period’ means, with respect to
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1 any calendar year, the period of the 4 cal2 endar years preceding such year.

3 ‘‘(5) COVERAGE LIMIT.—

4 ‘‘(A) IN GENERAL.—Except as other5 wise provided in this paragraph, the

6 term ‘coverage limit’ means, with re7 spect to any policy, the aggregate

8 limit on coverage under the policy.

9 ‘‘(B) ANNUAL LIMIT.—If the limit on

10 coverage under any policy is an an11 nual limit, the term ‘coverage limit’

12 means, with respect to such policy, an

13 amount equal to such annual limit

14 multiplied by the number of years

15 such contract was in effect.

16 ‘‘(C) PER OCCURRENCE LIMITS.—If

17 the limit on coverage under an insur18 ance policy is expressed on a per oc19 currence basis without an aggregate

20 or annual limit, the term ‘coverage

21 limit’ means, with respect to such pol22 icy, an amount equal to—

23 ‘‘(i) the limit on coverage

24 under the policy for 1 occurrence,

25 multiplied by
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1 ‘‘(ii) the number of eligible fa2 cilities of the eligible person that

3 were taken into account in deter4 mining the applicable percentage

5 under section 806 of the

6 Superfund Reform Act of 1994 of

7 such person, multiplied by

8 ‘‘(iii) the number of years such

9 contract was in effect.

10 ‘‘(D) EXCESS COVERAGE.—If the pol11 icy provides excess coverage without

12 an aggregate, annual, or per occur13 rence limit, the term ‘coverage limit’

14 means, with respect to such policy, an

15 amount equal to—

16 ‘‘(i) 10 times the amount that

17 must be paid by an insurer to the

18 eligible person before such person

19 is entitled to submit a claim for

20 such excess coverage, multiplied

21 by

22 ‘‘(ii) the number of years such

23 contract was in effect.

24 ‘‘(E) OTHER CASES.—If the coverage

25 limit under any policy is not deter-
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1 minable under the preceding provi2 sions of this paragraph, such limit

3 shall be determined by the Environ4 mental Insurance Resolution Fund

5 under a method prescribed by the Sec6 retary.

7 ‘‘(F) DEDUCTIBLES DISREGARDED.—

8 The determination under this para9 graph of any coverage limit under any

10 assessable direct policy shall be made

11 without regard to any deductible or

12 self-insured retention of an eligible

13 person.

14 ‘‘(G) TREATMENT OF REINSURANCE.—

15 ‘‘(i) IN GENERAL.—The coverage

16 limit (determined without regard

17 to this clause) under—

18 ‘‘(I) any assessable direct

19 policy, and

20 ‘‘(II) any assessable rein21 surance policy,

22 shall be reduced by 80 percent of

23 the portion of such limit which is

24 reinsured, but only if the rein25 surer and the reinsured are not
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1 members of the same controlled

2 group (as defined in section

3 4693(e)).

4 ‘‘(ii) REINSURER MUST BE IDEN5 TIFIED.—A policy shall be treated

6 as not reinsured for any period

7 unless the Environmental Insur8 ance Resolution Fund is notified

9 of such reinsurance (in such form

10 and manner, and at such time or

11 times, as is specified by such

12 Fund).

13 ‘‘(6) ELIGIBLE FACILITY; ELIGIBLE PER14 SON; VALID INSURANCE CONTRACT.—The

15 terms ‘eligible facility’, ‘eligible person’,

16 and ‘valid insurance contract’ have the

17 respective meanings given to such terms

18 by section 802 of the Superfund Reform

19 Act of 1994.

20 ‘‘(7) POLICY.—The term ‘policy’ has the

21 meaning given such term by section

22 4694(a)(4).

23 ‘‘(f) NO REVIEW OF EIRF-CERTIFIED PER24 CENTAGES.—
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1 ‘‘(1) IN GENERAL.—No court of the

2 United States shall have jurisdiction to

3 hear any action, whether legal or equi4 table, brought to review any final deter5 mination of any percentage under sub6 section (e)(3). No such final determination

7 shall be subject to review by the Secretary

8 in an administrative proceeding.

9 ‘‘(2) FINAL DETERMINATION.—For pur10 poses of paragraph (1), the percentages

11 determined under subsection (e)(3) by the

12 Environmental Insurance Resolution

13 Fund as of August 1st of any calendar

14 year shall be treated as final determina15 tions of such percentages for such year.

16 ‘‘(g) SECTION 4694(d) TAX TO APPLY TO CER17 TAIN ASSESSABLE INSURERS WITHOUT CLOSING

18 AGREEMENT.—If—

19 ‘‘(1) paragraph (1) of section 4694(d)

20 does not apply to any foreign person solely

21 by reason of paragraph (3)(E) thereof,

22 and

23 ‘‘(2) any policy issued by such person

24 is an assessable direct policy or an assess-
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1 able reinsurance policy under this sec2 tion,

3 subparagraphs (C)(iv) and (E) of section

4 4694(d)(3) shall cease to apply to such person

5 with respect to such policy.

6 ‘‘(h) ADMINISTRATIVE PROVISIONS.—

7 ‘‘(1) IN GENERAL.—All assessments im8 posed by this section are excise taxes, and

9 shall be assessed and collected in the

10 same manner as other excise taxes im11 posed by this chapter.

12 ‘‘(2) CERTAIN PROVISIONS MADE APPLICA13 BLE.—All provisions of law, including pen14 alties and provisions providing for inter15 est, shall apply to the assessments im16 posed by this section in the same manner

17 as other excise taxes imposed by this

18 chapter.

19 ‘‘(i) APPLICATION OF SECTION.—This section

20 shall apply to calendar years after 1998.

21 ‘‘PART IV—TERMINATION; ADMINISTRATIVE

22 PROVISIONS

‘‘Sec. 4697. Termination.

‘‘Sec. 4698. Return requirements; regulations.
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1 ‘‘SEC. 4697. TERMINATION.

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

3 subsection (b), this subchapter shall not apply

4 to any calendar year after 2004.

5 ‘‘(b) PART I TAX ON CERTAIN FOREIGN INSUR6 ERS.—The tax imposed by section 4694(d) shall

7 not apply to premiums and other amounts

8 paid after the close of the 10-year period begin9 ning on the date such tax takes effect.

10 ‘‘SEC. 4698. RETURN REQUIREMENTS; REGULATIONS.

11 ‘‘(a) RETURN REQUIREMENTS.—

12 ‘‘(1) IN GENERAL.—Each person liable

13 for any tax or assessment under this sub14 chapter shall make such returns, and fur15 nish such other statements and informa16 tion to the Secretary, as the Secretary de17 termines to be necessary to carry out the

18 purposes of this subchapter.

19 ‘‘(2) INITIAL RETURN.—The initial re20 turn made with respect to the tax imposed

21 by section 4691 shall include such infor22 mation as the Secretary shall by forms re23 quire for purposes of computing the ad24 justed base-period commercial premiums

25 of the person making such return.
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1 ‘‘(b) REGULATIONS.—The Secretary shall

2 prescribe such regulations as may be appro3 priate to carry out the purposes of this sub4 chapter, including such regulations as may be

5 appropriate to prevent the avoidance of any

6 tax or assessment imposed by this subchapter.’’

7 (b) CLERICAL AMENDMENT.—The table of

8 subchapters for chapter 38 of such Code is

9 amended by adding at the end the following

10 new item:

‘‘Subchapter E. Environmental insurance resolution

taxes.’’

11 (c) STUDY OF FINANCING.—During 2003, the

12 Secretary of the Treasury or his delegate shall

13 prepare and submit to the Committee on Ways

14 and Means of the House of Representatives

15 and the Committee on Finance of the Senate

16 a study of the financing for the Environmental

17 Insurance Resolution Fund, including in such

18 study any recommendations that the Secretary

19 may have with respect to such financing.

20 SEC. 902. ENVIRONMENTAL INSURANCE RESOLUTION

21 TRUST FUND.

22 (a) IN GENERAL.—Subchapter A of chapter

23 98 of the Internal Revenue Code of 1986 (relat-
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1 ing to trust fund code) is amended by adding

2 at the end the following new section:

3 ‘‘SEC. 9513. ENVIRONMENTAL INSURANCE RESOLUTION

4 TRUST FUND.

5 ‘‘(a) CREATION OF TRUST FUND.—There is

6 established in the Treasury of the United

7 States a trust fund to be known as the ‘Envi8 ronmental Insurance Resolution Trust Fund’,

9 consisting of such amounts as may be appro10 priated or credited to such Trust Fund as pro11 vided in this section or section 9602(b).

12 ‘‘(b) TRANSFERS TO TRUST FUND.—There are

13 hereby appropriated to the Environmental In14 surance Resolution Trust Fund amounts

15 equivalent to—

16 ‘‘(1) the taxes received in the Treasury

17 under subchapter E of chapter 38 (relat18 ing to environmental insurance resolution

19 taxes), and

20 ‘‘(2) amounts recovered by, and fees

21 paid to, the Environmental Insurance

22 Resolution Fund under title VIII of the

23 Superfund Reform Act of 1994.

24 ‘‘(c) EXPENDITURES FROM TRUST FUND.—

25 Amounts in the Environmental Insurance Res-
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1 olution Trust Fund shall be available for pur2 poses of making expenditures to carry out title

3 VIII of the Superfund Reform Act of 1994 (as

4 in effect on the date of the enactment of such

5 Act) and only for such purposes.

6 ‘‘(d) LIABILITY OF UNITED STATES LIMITED

7 TO AMOUNT IN TRUST FUND.—

8 ‘‘(1) IN GENERAL.—Any expenditure or

9 obligation incurred by the Environmental

10 Insurance Resolution Fund may be paid

11 only out of the Environmental Insurance

12 Resolution Trust Fund.

13 ‘‘(2) COORDINATION WITH OTHER PROVI14 SIONS.—Nothing in the Superfund Reform

15 Act of 1994 or in any other provision of

16 law shall authorize the payment by the

17 United States Government of any amount

18 with respect to any such expenditure or

19 obligation out of any source other than

20 the Environmental Insurance Resolution

21 Trust Fund, and the United States Gov22 ernment shall not be liable for any such

23 expenditure or obligation to the extent not

24 paid from such Trust Fund.
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1 ‘‘(3) FINAL YEAR.—If, as of December

2 31, 2004, the Secretary estimates that the

3 Environmental Insurance Resolution

4 Trust Fund has insufficient funds to pay

5 all of the amounts payable out of the such

6 Trust Fund, amounts payable out of such

7 Trust Fund after such date shall be pro8 portionately reduced to reflect such insuf9 ficiency.’’.

10 (b) CLERICAL AMENDMENT.—The table of

11 sections for such subchapter A is amended by

12 adding at the end thereof the following new

13 item:

‘‘Sec. 9513. Environmental Insurance Resolution

Trust Fund.’’

14 SEC. 903. EXEMPTION FROM INCOME TAX FOR ENVIRON15 MENTAL INSURANCE RESOLUTION FUND.

16 Subsection (l) of section 501 of the Internal

17 Revenue Code of 1986 (relating to exemption

18 from tax on corporations, certain trusts, etc.)

19 is amended by adding at the end the following

20 new paragraph:

21 ‘‘(4) The Environmental Insurance

22 Resolution Fund established by section

23 803 of the Superfund Reform Act of 1994.’’.
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1 SEC. 904. EFFECTIVE DATES.

2 (a) IN GENERAL.—Except as otherwise pro3 vided in this section, the amendments made by

4 this subtitle shall take effect on January 1,

5 1995.

6 (b) CURRENT YEAR PREMIUMS.—The amend7 ments made by this subtitle to the extent relat8 ed to section 4695 of the Internal Revenue Code

9 of 1986, as added by such amendments, shall

10 apply to premiums written after December 31,

11 1994.

12 (c) CONTINGENCY PERIOD.—

13 (1) IN GENERAL.—The amendments

14 made by this subtitle (other than section

15 903) shall not take effect unless, as of Au16 gust 15, 1995—

17 (A) title VIII of this Act is in effect,

18 and

19 (B) the contingency period has ex20 pired.

21 (2) DELAY IN DUE DATE FOR TAXES.—If

22 the due date for any tax imposed by sub23 chapter E of chapter 38 of the Internal

24 Revenue Code of 1986 would, but for this

25 paragraph, be on or before the close of the

26 contingency period, such due date shall be
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1 the 14th day of the first month beginning

2 after the close of such period.

3 (d) PART I TAX ON CERTAIN FOREIGN INSUR4 ERS.—The tax imposed by section 4694(d) of the

5 Internal Revenue Code of 1986, as added by

6 this title, shall apply to a policy for which any

7 premium is written after the close of the con8 tingency period.

9 (e) CONTINGENCY PERIOD.—For purposes of

10 this section, the term ‘‘contingency period’’

11 means the period specified in section 816 of the

12 Superfund Reform Act of 1994 during which

13 title VIII of such Act is in effect on a contin14 gent basis.

15 Subtitle B—5-Year Extension of

16 Hazardous Substance Superfund

17 SEC. 911. 5-YEAR EXTENSION OF HAZARDOUS SUBSTANCE

18 SUPERFUND.

19 (a) EXTENSION OF TAXES.—

20 (1) The following provisions of the In21 ternal Revenue Code of 1986 are each

22 amended by striking ‘‘January 1, 1996’’

23 each place it appears and inserting ‘‘Jan24 uary 1, 2001’’:
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1 (A) Section 59A(e)(1) (relating to

2 application of environmental tax).

3 (B) Paragraphs (1) and (3) of sec4 tion 4611(e) (relating to application of

5 Hazardous Substance Superfund fi6 nancing rate).

7 (2) Paragraph (2) of section 4611(e) of

8 such Code is amended—

9 (A) by striking ‘‘1993’’ and insert10 ing ‘‘1998’’,

11 (B) by striking ‘‘1994’’ each place

12 it appears and inserting ‘‘1999’’, and

13 (C) by striking ‘‘1995’’ each place

14 it appears and inserting ‘‘2000’’.

15 (b) INCREASE IN AGGREGATE TAX WHICH MAY

16 BE COLLECTED.—Paragraph (3) of section

17 4611(e) of such Code is amended by striking

18 ‘‘$11,970,000,000’’ each place it appears and in19 serting ‘‘$22,000,000,000’’ and by striking ‘‘De20 cember 31, 1995’’ and inserting ‘‘December 31,

21 2000’’.

22 (c) EXTENSION OF REPAYMENT DEADLINE FOR

23 SUPERFUND BORROWING.—Subparagraph (B) of

24 section 9507(d)(3) of such Code is amended by
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1 striking ‘‘December 31, 1995’’ and inserting

2 ‘‘December 31, 2000’’.

3 (d) EXTENSION OF TRUST FUND PURPOSES.—

4 Subparagraph (A) of section 9507(c)(1) of such

5 Code is amended—

6 (1) by striking clause (i) and inserting

7 the following:

8 ‘‘(i) paragraphs (1), (2), (5),

9 (6), (7), (8), and (9) of section

10 111(a) of CERCLA as in effect on

11 the date of the enactment of the

12 Superfund Reform Act of 1994,’’,

13 and

14 (2) by striking clause (iii) and insert15 ing the following:

16 ‘‘(iii) subsections (m), (n), (q),

17 and (r) of section 111 of CERCLA

18 (as so in effect), or’’.

19 (e) EXTENSION OF AUTHORIZATION OF APPRO20 PRIATIONS TO TRUST FUND.—Subsection (b) of

21 section 517 of the Superfund Revenue Act of

22 1986 (26 U.S.C. 9507 note) is amended by strik23 ing ‘‘and’’ at the end of paragraph (8), by strik24 ing the period at the end of paragraph (9) and
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1 inserting a comma, and by adding at the end

2 the following new paragraphs:

3 ‘‘(10) 1996, $250,000,000,

4 ‘‘(11) 1997, $250,000,000,

5 ‘‘(12) 1998, $250,000,000, and

6 ‘‘(13) 1999, $250,000,000,’’.

7 (f) COORDINATION WITH OTHER PROVI8 SIONS.—Paragraph (2) of section 9507(e) of the

9 Internal Revenue Code of 1986 is amended by

10 striking ‘‘CERCLA’’ and all that follows

11 through ‘‘Acts)’’ and inserting ‘‘CERCLA, the

12 Superfund Amendments and Reauthorization

13 Act of 1986, and the Superfund Reform Act of

14 1994 (or in any amendment made by any of

15 such Acts)’’.

16 Subtitle C—Report by

17 Environmental Protection Agency

18 SEC. 921. REPORT.

19 (a) IN GENERAL.—The Administrator of the

20 Environmental Protection Agency shall pre21 pare and submit to the Congress an annual re22 port on its assessment of the effectiveness of

23 the Superfund Reform Act of 1994 liability and

24 enforcement reforms, including the reduction
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1 of litigation, delay and costs, and other per2 formance measures including the following:

3 (1) HAZARDOUS SUBSTANCE SUPERFUND

4 FINANCIAL INTEGRITY.—

5 (A) A breakdown of Hazardous

6 Substance Superfund obligations by

7 type of activities.

8 (B) An accounting of such obliga9 tions (such as remedial actions, stud10 ies, and enforcement), by site.

11 (C) A list of companies and associ12 ated amounts in the accounts receiv13 able inventory, including the date the

14 receivable was established, by site.

15 (D) The amount of cost recoveries

16 paid into such fund.

17 (E) Projected future clean-up costs

18 (all sites) for Federal Government and

19 private parties.

20 (F) Projected trust fund obliga21 tions and receipts.

22 (2) CLEAN-UP EFFICIENCY AND EFFEC23 TIVENESS (BOTH PRIVATE AND PUBLIC-LEAD

24 SITES).—
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1 (A) The number of sites cleaned2 up, broken down by the type and level

3 of clean-up.

4 (B) The time taken to clean-up

5 each site, broken down by phase.

6 (C) The cost of each clean-up.

7 (D) The percentage of Agency for

8 Toxic Substances and Disease Reg9 istry health assessments completed

10 timely.

11 (E) The number of people pro12 tected from hazardous substance

13 threats.

14 (F) Expected number of human

15 deaths prevented by work performed

16 at National Priority List sites.

17 (G) The number and cost of all

18 studies conducted at each site, and

19 the extent of any restudies.

20 (H) The amount of attorney, con21 tractor, and engineering fees ex22 pended, broken down by site.

23 (I) Effect of the Superfund Reform

24 Act of 1994 on Hazardous Substance

25 Superfund remedy selection, litiga-
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1 tion, and other transaction costs, and

2 on clean-up costs.

3 (3) LIABILITY ALLOCATION PROCESS.—

4 (A) The number of parties who are

5 eligible for an expedited settlement

6 and the number to whom the Environ7 mental Protection Agency makes a

8 timely offer.

9 (B) The number of settlements

10 with municipal solid waste generators

11 and transporters, limited-ability-to12 pay parties, and the size of the orphan

13 share generated.

14 (C) The percent of potentially re15 sponsible parties who accept the Envi16 ronmental Protection Agency’s alloca17 tion of liability.

18 (D) The percent of allocations

19 completed within the statutory dead20 line.

21 (E) The percent of nonsettling al22 location parties subject to an Environ23 mental Protection Agency cost recov24 ery action.
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1 (F) The total number of poten2 tially responsible parties identified by

3 the Environmental Protection Agency

4 at each site, broken down by those

5 who settle as de minimis, municipal

6 solid waste generators and transport7 ers, and limited-ability-to-pay parties,

8 and by those who settle as a result of

9 the allocation process and those who

10 do not settle.

11 (G) Percentage of clean-up costs

12 allocated to identified-but-not-viable

13 potentially responsible parties, un14 identified potentially responsible par15 ties, and the Federal Government, and

16 the percentage of the orphan shares

17 attributable to each.

18 (4) ENVIRONMENTAL INSURANCE RESOLU19 TION TRUST FUND.—

20 (A) Total and annual actual re21 ceipts.

22 (B) Total and annual obligations.

23 (C) Projected receipts and outlays

24 for each fiscal year for the remaining

25 life of such Trust Fund.
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1 (D) The number and percentage of

2 potentially responsible parties who

3 have accepted offers made by such

4 Trust Fund, weighted by size of offer.

5 (E) Outlays by such Trust Fund to

6 insurance companies for settlements

7 with parties not accepting offers from

8 such Trust Fund, and the size of the

9 offers not accepted.

10 (b) PERIOD REPORTS REQUIRED.—The an11 nual reports required by subsection (a) shall

12 be for each of the fiscal years 1995, 1996, 1997,

13 1998, and 1999 and shall be due on the 31st of

14 December following the close of each such fis15 cal year.

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