I

103D CONGRESS

2D SESSION H. R. 4161

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to make comprehensive improvements in provisions

relating to liability, State implementation, remedy selection, and funding.

IN THE HOUSE OF REPRESENTATIVES

MARCH 24, 1994

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

Committees on Energy and Commerce, Public Works and Transportation,

and Ways and Means

JUNE 21, 1994

Additional sponsors: Mr. HUTCHINSON, Mr. SHUSTER, Mr. EWING, Mr.

CLINGER, Mr. INHOFE, Mr. BARRETT of Nebraska, Mrs. JOHNSON of

Connecticut, Mr. PETRI, Mr. MICA, and Mr. EMERSON

A BILL

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

implementation, remedy selection, and funding.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Comprehensive

5 Superfund Improvement Act’’.
2

•HR 4161 SC

1 SEC. 2. TABLE OF CONTENTS.

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

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—LIABILITY

Sec. 101. Release of evidence.

Sec. 102. Elimination of retroactive liability.

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

Sec. 104. Contribution protection.

Sec. 105. Contiguous properties.

Sec. 106. Lender and fiduciary liability.

Sec. 107. Definitions.

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

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

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

Sec. 111. Site redevelopment.

Sec. 112. Liability of response action contractors.

TITLE II—STATE IMPLEMENTATION

Sec. 201. State authority.

Sec. 202. Transfer of authorities.

Sec. 203. EPA oversight costs.

TITLE III—REMEDY SELECTION

Sec. 301. Immediate risk reduction measures.

Sec. 302. Site scoring.

Sec. 303. Long-term response plan.

Sec. 304. Long-term response selection.

Sec. 305. Periodic review.

Sec. 306. Delisting of facilities and sites.

TITLE IV—FUNDING

Sec. 401. 5-year extension of Hazardous Substance Superfund.

Sec. 402. Increase in environmental income tax.

Sec. 403. Environmental fees and assessments on insurance companies.

Sec. 404. Retroactive Liability Fund.

3 TITLE I—LIABILITY

4 SEC. 101. RELEASE OF EVIDENCE.

5 (a) TIMELY ACCESS TO INFORMATION FURNISHED

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

7 Comprehensive Environmental Response, Compensation,

8 and Liability Act of 1980 (42 U.S.C. 9604(e)(7)(A)) is
3

•HR 4161 SC

1 amended by inserting after ‘‘shall be available to the pub2 lic’’ the following: ‘‘not later than 14 days after the

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

4 (b) REQUIREMENT TO PROVIDE PRPS EVIDENCE OF

5 LIABILITY.—(1) Subsection (a) of section 106 of the Com6 prehensive Environmental Response, Compensation, and

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

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

9 the President issues an order to a person under this sub10 section, the President shall provide information concerning

11 the evidence that indicates that each element of liability

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

13 107(a)(1) is present.’’.

14 (2) Section 122(e)(1) of such Act is amended by in15 serting after subparagraph (C) the following:

16 ‘‘(D) For each potentially responsible

17 party, the evidence that indicates that each ele18 ment of liability contained in subparagraph (A),

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

20 present.’’.

21 SEC. 102. ELIMINATION OF RETROACTIVE LIABILITY.

22 Section 107 of the Comprehensive Environmental Re23 sponse, Compensation, and Liability Act of 1980 (42

24 U.S.C. 9607(a)) is amended by adding at the end the fol25 lowing new subsection:
4

•HR 4161 SC

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

2 REIMBURSEMENT PROVISIONS.—

3 ‘‘(1) IN GENERAL.—Subject to the provisions in

4 this subsection, a person is liable under this section

5 only for actions occurring after December 11, 1980.

6 The provisions of this subsection shall not apply to

7 actions occurring before December 11, 1980 which

8 were contrary to law at the time of the actions. Re9 imbursement or payment from the Retroactive Li10 ability Fund (established by section 9512 of the In11 ternal Revenue Code of 1986) shall be made pursu12 ant to section 508.

13 ‘‘(2) PRE-1981 SITES.—With respect to sites or

14 facilities with respect to which all actions for which

15 liability arising under this Act occurred before De16 cember 11, 1980, the following rules apply:

17 ‘‘(A) CONSTRUCTION COMPLETED.—For

18 such sites or facilities where the construction of

19 the response action has been completed by Jan20 uary 1, 1994, no reimbursement may be made

21 from the Retroactivity Liability Fund to the po22 tentially responsible parties concerned for costs

23 incurred for such construction. If a potentially

24 responsible party is conducting operation and

25 maintenance related to the response action at
5

•HR 4161 SC

1 the site or facility as of January 1, 1994, the

2 President shall assume the future costs of such

3 operation and maintenance and shall reimburse

4 the party for such costs incurred.

5 ‘‘(B) CONSTRUCTION ONGOING.—For such

6 sites or facilities where the construction of the

7 response action has not been completed by Jan8 uary 1, 1994, reimbursement may be made to

9 the potentially responsible parties concerned for

10 costs incurred for such construction, but only

11 after the construction is completed. After con12 struction is complete, the President shall as13 sume future costs for any operation and main14 tenance related to the response action.

15 ‘‘(C) DISCOVERY AFTER JANUARY 1,

16 1994.—For such sites or facilities that are dis17 covered after January 1, 1994, the President

18 shall use amounts from the Retroactive Liabil19 ity Fund to pay for all costs of the response ac20 tion. Such costs shall not include attorney’s fees

21 or other costs associated with litigation related

22 to the response action.

23 ‘‘(3) STRADDLE SITES.—With respect to sites

24 or facilities with respect to which actions for which

25 liability arising under this Act occurred both before
6

•HR 4161 SC

1 and after December 11, 1980, the following rules

2 apply:

3 ‘‘(A) CONSTRUCTION COMPLETED.—For

4 such sites or facilities where the construction of

5 the response action has been completed by Jan6 uary 1, 1994, no reimbursement may be made

7 from the Retroactive Liability Fund to the po8 tentially responsible parties concerned for costs

9 incurred for such construction. If a potentially

10 responsible party is conducting operation and

11 maintenance related to the response action at

12 the site or facility as of January 1, 1994, the

13 potentially responsible party may, within 90

14 days after the date of enactment of the Com15 prehensive Superfund Improvement Act, peti16 tion the President for an allocation (in accord17 ance with title V) of the operation and mainte18 nance costs. The allocation shall determine

19 which portion of the operation and maintenance

20 costs are attributable to actions occurring be21 fore December 11, 1980, and which are attrib22 utable to actions occurring after such date, and

23 shall provide for the reimbursement of the po24 tentially responsible party, from the Retroactive
7

•HR 4161 SC

1 Liability Fund, of those costs attributable to

2 actions occurring before December 11, 1980.

3 ‘‘(B) CONSTRUCTION ONGOING.—For such

4 sites or facilities where the construction of the

5 response action has not been completed by Jan6 uary 1, 1994, the potentially responsible parties

7 concerned shall complete construction and con8 duct any required operation and maintenance.

9 A potentially responsible party may, with 90

10 days after construction of the response action is

11 complete, petition the President for an alloca12 tion (in accordance with title V) of both the

13 construction and operation and maintenance

14 costs. The allocation shall determine which por15 tion of the construction and operation and

16 maintenance costs are attributable to actions

17 occurring before December 11, 1980, and which

18 are attributable to actions occurring after such

19 date, and shall provide for the reimbursement

20 of the potentially responsible party, from the

21 Retroactive Liability Fund, of those costs at22 tributable to actions occurring before December

23 11, 1980.

24 ‘‘(C) DISCOVERY AFTER JANUARY 1,

25 1994.—For such sites or facilities that are dis-
8

•HR 4161 SC

1 covered after January 1, 1994, the President

2 shall use amounts from the Retroactive Liabil3 ity Fund to pay for costs of the response action,

4 including construction and operation and main5 tenance, attributable to actions occurring before

6 December 11, 1980.

7 ‘‘(4) DEFINITIONS.—In this subsection:

8 ‘‘(A) The term ‘actions’ includes ownership or

9 operation of a facility at which hazardous substances

10 were disposed of, disposal of hazardous substances,

11 arrangement with a transporter for transport for

12 disposal or treatment of a hazardous substance, and

13 any other activities described in subsection (a).

14 ‘‘(B) The term ‘person’ has the meaning pro15 vided in section 101(21) but does not include the

16 United States Government.’’.

17 SEC. 103. LIMITATION ON LIABILITY OF CERTAIN OWNERS

18 AND OPERATORS.

19 (a) EXEMPTION FOR GRANTEES OF CERTAIN EASE20 MENTS.—Subsection (a) of section 107 of the Comprehen21 sive Environmental Response, Compensation, and Liabil22 ity Act of 1980 (42 U.S.C. 9607(a)) is amended—

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

24 liable for—’’ and inserting in lieu thereof ‘‘shall be
9

•HR 4161 SC

1 liable, except as provided in paragraph (4), for the

2 costs and damages set forth in paragraph (2).’’;

3 (2) by inserting before subparagraph (A) the

4 following:

5 ‘‘(2) The costs and damages for which persons de6 scribed in paragraph (1) shall be liable are—’’;

7 (3) by aligning the margins of subparagraphs

8 (A), (B), (C), and (D) so as to be cut in two ems;

9 (4) by inserting ‘‘(1)’’ before ‘‘Notwithstanding

10 any other provision or rule of law,’’;

11 (5) by redesignating paragraphs (1), (2), (3),

12 and (4) as subparagraphs (A), (B), (C), and (D), re13 spectively;

14 (6) by inserting ‘‘(3)’’ before the text beginning

15 with ‘‘The amounts recoverable in an action under

16 this section’’ (and aligning such text as a paragraph

17 below paragraphs (1) and (2) (as redesignated)) and

18 in that text—

19 (A) by inserting ‘‘of paragraph (2)’’ after

20 ‘‘subparagraphs (A) through (D)’’;

21 (B) by striking out ‘‘(i)’’ and inserting in

22 lieu thereof ‘‘(A)’’; and

23 (C) by striking out ‘‘(ii)’’ and inserting in

24 lieu thereof ‘‘(B)’’; and
10

•HR 4161 SC

1 (7) by adding at the end the following new

2 paragraph:

3 ‘‘(4) In the case of a person who is a qualified organi4 zation under section 170(h)(3) of the Internal Revenue

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

6 easement with respect to real property on which a facility

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

8 or operator of the facility under subparagraph (A) or (B)

9 of paragraph (1) unless the person, by any act or omis10 sion, causes or contributes to the release or threatened re11 lease of a hazardous substance that causes the incurrence

12 of response costs. For purposes of this paragraph, the

13 term ‘‘conservation easement’’ means a restriction on the

14 use of land for purposes of protecting in perpetuity a con15 servation purpose listed in section 170(h)(4) of the Inter16 nal Revenue Code of 1986.’’.

17 (b) SAFE HARBOR FOR INNOCENT LANDOWNER DE18 FENSE.—(1) Section 101(35) of the Comprehensive Envi19 ronmental Response, Compensation and Liability Act of

20 1980 (42 U.S.C. 9601 et seq.) is amended by redesignat21 ing subparagraphs (C) and (D) as subparagraphs (D) and

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

23 the following:

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

25 property shall have established a rebuttable pre-
11

•HR 4161 SC

1 sumption that he has made all appropriate inquiry

2 within the meaning of subparagraph (B) if he estab3 lishes that, immediately prior to or at the time of ac4 quisition, he obtained an environmental assessment

5 of the real property which meets the requirements of

6 this subparagraph.

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

8 term ‘environmental professional’ means an individ9 ual, or an entity managed or controlled by such indi10 vidual who, through academic training, occupational

11 experience and reputation (such as engineers, envi12 ronmental consultants and attorneys), can objec13 tively conduct one or more aspects of an environ14 mental assessment. For purposes of this subpara15 graph, the term ‘environmental assessment’ means

16 an investigation of the real property, conducted by

17 environmental professionals, to determine or discover

18 the likelihood of the presence or substantial reason

19 to suspect the presence of a release or threatened re20 lease of hazardous substances on the real property

21 and which consists of a review of each of the follow22 ing sources of information concerning the previous

23 ownership and uses of the real property:

24 ‘‘(I) Recorded chain of title documents re25 garding the real property, including all deeds,
12

•HR 4161 SC

1 easements, leases, restrictions, and covenants

2 for a period of 50 years.

3 ‘‘(II) Aerial photographs which may reflect

4 prior uses of the real property and which are

5 reasonably accessible through State or local

6 government agencies.

7 ‘‘(III) Determination of the existence of re8 corded environmental cleanup liens against the

9 real property which have arisen pursuant to

10 Federal, State, and local statutes.

11 ‘‘(IV) Reasonably obtainable Federal,

12 State, and local government records of sites or

13 facilities where there has been a release of haz14 ardous substances and which are likely to cause

15 or contribute to a release or threatened release

16 of hazardous substances on the real property,

17 including investigation reports for such sites or

18 facilities; reasonably obtainable Federal, State,

19 and local government environmental records of

20 activities likely to cause or contribute to a re21 lease or a threatened release of hazardous sub22 stances on the real property, including landfill

23 and other disposal location records, under24 ground storage tank records, hazardous waste

25 handler and generator records and spill report-
13

•HR 4161 SC

1 ing records; and such other reasonably obtain2 able Federal, State, and local government envi3 ronmental records which report incidents or ac4 tivities which are likely to cause or contribute

5 to a release or threatened release of hazardous

6 substances on the real property. A record is

7 considered to be reasonably obtainable for pur8 poses of this subclause if a copy or reasonable

9 facsimile of the record is obtainable from the

10 government agency by request.

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

12 property and all facilities and improvements on

13 the real property, and a visual inspection of im14 mediately adjacent properties from the real

15 property, including an investigation of any

16 chemical use, storage, treatment and disposal

17 practices on the property.

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

19 (i) unless the defendant has maintained a compila20 tion of the information reviewed in the course of the

21 environmental assessment.

22 ‘‘(iv) Notwithstanding any other provision of

23 this paragraph, if the environmental assessment dis24 closes the presence or likely presence of a release or

25 threatened release of hazardous substances on the
14

•HR 4161 SC

1 real property to be acquired, no presumption shall

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

3 threatened release unless the defendant has taken

4 reasonable steps, in accordance with current tech5 nology available, existing regulations, and generally

6 acceptable engineering practices, as may be nec7 essary to confirm the absence of such release or

8 threatened release.’’.

9 (2) Subparagraph (C) of section 101(35) of the Com10 prehensive Environmental Response, Compensation, and

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

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

13 SEC. 104. CONTRIBUTION PROTECTION.

14 Section 113(f)(2) of the Comprehensive Environ15 mental Response, Compensation, and Liability Act of

16 1980 (42 U.S.C. 9613(f)(2)) is amended in the first sen17 tence by inserting ‘‘or cost recovery’’ after ‘‘contribution’’.

18 SEC. 105. CONTIGUOUS PROPERTIES.

19 Section 107(a) of the Comprehensive Environmental

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

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

22 amended by adding at the end the following new para23 graph:

24 ‘‘(5) A person who owns or operates real prop25 erty that is contiguous to or otherwise situated with
15

•HR 4161 SC

1 respect to real property on which there has been a

2 release of a hazardous substance and that is or may

3 be contaminated by such release shall not be consid4 ered an owner or operator of a facility under para5 graph (1)(A) solely by reason of such contamination.

6 The President may issue assurances of no enforce7 ment action under this Act to any such person and

8 may grant any such person protection against cost

9 recovery and contribution actions pursuant to sec10 tion 113(f)(2).’’.

11 SEC. 106. LENDER AND FIDUCIARY LIABILITY.

12 (a) RULEMAKING AUTHORITY FOR SECURITY INTER13 EST EXEMPTION.—Section 115 of the Comprehensive En14 vironmental Response, Compensation, and Liability Act of

15 1980 (15 U.S.C. 9615) is amended—

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

17 subsection (a); and

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

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

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

21 date of enactment of the Comprehensive Superfund Im22 provement Act, regulations to define the terms of this Act

23 as they apply to lenders and other financial services pro24 viders. These regulations shall clarify the definition of the
16

•HR 4161 SC

1 term ‘owner or operator’ contained in section 101(20)(A)

2 by—

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

4 ‘security interest’, ‘primarily to protect a security in5 terest’, and ‘participation in management’; and

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

7 be undertaken without voiding the exemption to li8 ability provided by section 101(20)(A).

9 ‘‘(2) The following clarifications shall be included

10 among the provisions in the regulations issued under para11 graph (1):

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

13 does not include—

14 ‘‘(i) the mere capacity to influence, or abil15 ity to influence, or the unexercised right to con16 trol facility operations; or

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

18 to require another person or itself, to comply

19 with applicable laws or to respond lawfully to

20 disposal of any hazardous substance.

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

22 deemed to be participating in management of a facil23 ity unless the security interest holder—
17

•HR 4161 SC

1 ‘‘(i) has undertaken responsibility for the

2 facility’s hazardous substance handling or dis3 posal practices; or

4 ‘‘(ii) has undertaken overall management

5 of the facility encompassing day-to-day deci6 sionmaking over either environmental compli7 ance or over the operational, as opposed to fi8 nancial and administrative, aspects of the facil9 ity.

10 ‘‘(C) Legal or equitable title acquired by a secu11 rity interest holder through foreclosure or its equiva12 lents will be deemed to be held primarily to protect

13 a security interest provided that the holder under14 takes to sell, re-lease, or otherwise divest the prop15 erty in a reasonably expeditious manner on commer16 cially reasonable terms.’’.

17 (b) PROTECTION FOR FIDUCIARIES FROM INDIVID18 UAL LIABILITY.—(1) Section 101(20) of the Comprehen19 sive Environmental Response, Compensation, and Liabil20 ity Act of 1980 (42 U.S.C. 9601(20)) is amended by add21 ing at the end the following new subparagraph:

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

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

24 mortgagee or secured party with respect to, controls,

25 or manages, directly or indirectly, any facility or ves-
18

•HR 4161 SC

1 sel for purposes of administering an estate or trust

2 of which such facility or vessel is a part.

3 ‘‘(ii) For purposes of clause (i), the term ‘fidu4 ciary’ means a person who is acting in any of the

5 following representative capacities, but only to the

6 extent such person is acting in such representative

7 capacity:

8 ‘‘(I) An executor or administrator of an es9 tate, including a voluntary executor or a vol10 untary administrator.

11 ‘‘(II) A guardian.

12 ‘‘(III) A conservator.

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

14 the trustee takes title to, or otherwise controls

15 or manages, property for the purpose of pro16 tecting or conserving such property under the

17 ordinary rules applied in State courts.

18 ‘‘(V) A court-appointed receiver.

19 ‘‘(VI) A trustee appointed in proceedings

20 under Federal bankruptcy laws.

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

22 under an assignment made for the benefit of

23 creditors.

24 ‘‘(VIII) A trustee, or any successor there25 to, pursuant to an indenture agreement, trust
19

•HR 4161 SC

1 agreement, lease, or similar financing agree2 ment, for debt securities, certificates of interest

3 of participation in any such debt securities, or

4 other forms of indebtedness as to which it is

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

6 (2) Section 107 of the Comprehensive Environmental

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

8 U.S.C. 9607), as amended by sections 102 and 103, is

9 further amended by adding at the end the following new

10 subsection:

11 ‘‘(m) FIDUCIARY LIABILITY.—(1) Except as provided

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

13 101(20)) shall not be liable in its individual capacity under

14 this section.

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

16 preventing claims under this Act against—

17 ‘‘(A) the assets of the estate or trust adminis18 tered by a fiduciary; or

19 ‘‘(B) non-employee agents or independent con20 tractors retained by a fiduciary.

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

22 preventing claims under this Act against a fiduciary in its

23 individual capacity whose negligent acts or intentional

24 misconduct caused a release or threatened release of haz25 ardous substances at a facility or vessel. A fiduciary shall
20

•HR 4161 SC

1 not be attributed with the negligence or intentional mis2 conduct of non-employee agents or independent contrac3 tors if the fiduciary has conducted itself without neg4 ligence or intentional misconduct with regard to its rela5 tionship with such agents or contractors.’’.

6 SEC. 107. DEFINITIONS.

7 Section 101 of the Comprehensive Environmental Re8 sponse, Compensation, and Liability Act of 1980 (42

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

10 following:

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

12 means any person identified as potentially liable

13 under section 107, potentially responsible to perform

14 any response action under sections 104 or 106, or

15 potentially liable for contribution under section 113.

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

17 potentially responsible party who is a generator or

18 transporter who contributed less than one hundred

19 pounds or one hundred liters of material containing

20 hazardous substances at a facility, or such greater

21 or lesser amount as the Administrator may deter22 mine by regulation.

23 ‘‘(41) The term ‘de minimis party’ means a lia24 ble party whose assigned share of liability is deter-
21

•HR 4161 SC

1 mined to be 1.0 percent or less in a final binding al2 location of responsibility decision under title V.

3 ‘‘(42) The term ‘liable party’ means any poten4 tially responsible party determined by an allocation

5 panel or a court to be liable under section 107, re6 sponsible to perform any action under sections 104

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

8 ‘‘(43) The term ‘assigned share’ means the per9 centage of liability assigned, in accordance with the

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

11 party by an allocation panel in a binding allocation

12 of responsibility or by a court of law.

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

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

15 or whose assigned share has been subject to dis16 charge or limitation in bankruptcy, or who is other17 wise financially unable to pay all or part of its as18 signed share.

19 ‘‘(45) The term ‘creditor party’ means the Ad20 ministrator, a State, or any person who is deter21 mined to be a liable party with respect to a National

22 Priority List site and who incurs or has incurred

23 costs with respect to the site that are not inconsist24 ent with the National Contingency Plan.
22

•HR 4161 SC

1 ‘‘(46) The term ‘debtor party’ means the Haz2 ardous Substance Superfund and any person who is

3 determined to be a liable party with respect to a Na4 tional Priority List site.

5 ‘‘(47) The term ‘binding allocation of respon6 sibility’ means a final binding determination by an

7 allocation panel pursuant to title V.

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

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

10 including all shares eligible for reimbursement or

11 payment pursuant to section 107(n).

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

13 ‘guardian’ means the person appointed by the Ad14 ministrator to represent the Environmental Protec15 tion Agency in a binding allocation of responsibility

16 proceeding.

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

18 means any site or facility that the Administrator has

19 listed on, or proposed for listing on, the list estab20 lished pursuant to section 105(a)(8)(B).’’.

21 SEC. 108. ASSIGNMENT OF SHARES OF LIABILITY FOR

22 COSTS OF RESPONSE ACTIONS AT NATIONAL

23 PRIORITY LIST SITES.

24 Section 107(a) of the Comprehensive Environmental

25 Response, Compensation, and Liability Act of 1980 (42
23

•HR 4161 SC

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

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

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

4 who accepts the results of the allocation of responsibility

5 process under title V or who successfully appeals the re6 sults of such process shall be liable only for its assigned

7 share of the costs incurred pursuant to subparagraphs

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

9 a National Priority List site shall be paid out of the Haz10 ardous Substance Superfund or the Retroactive Liability

11 Fund or any combination thereof, as determined by final

12 binding allocation of liability.’’.

13 SEC. 109. ENFORCEMENT OF RESPONSE ACTIONS

14 THROUGH JOINT AND SEVERAL LIABILITY.

15 Section 107 of the Comprehensive Environmental Re16 sponse, Compensation, and Liability Act of 1980 (42

17 U.S.C. 9607) is amended by adding at the end the follow18 ing: 

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

20 WHO FAIL TO PERFORM RESPONSE ACTIONS.—In any

21 case in which no liable party or potentially responsible

22 party agrees to perform a response action at a National

23 Priority List site, or a liable party or potentially respon24 sible party agrees to perform a response action but the

25 party fails to perform such response action, as determined
24

•HR 4161 SC

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

2 located, the following provisions apply:

3 ‘‘(1) The party is considered to have not re4 solved its liability to the United States, notwith5 standing the party’s acceptance of the results of the

6 binding allocation of responsibility process under

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

8 of such process.

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

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

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

12 the response action and all costs of the response ac13 tion with respect to the National Priority List site.

14 ‘‘(o) PAYMENT OF CERTAIN RESPONSE COSTS BY

15 FUND.—A potentially responsible party who performs and

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

17 shall be reimbursed by the Hazardous Substance

18 Superfund.

19 ‘‘(p) AUTHORITY TO COLLECT RESPONSE COSTS

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

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

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

23 and may recover its response costs in accordance with that

24 section.’’.
25

•HR 4161 SC

1 SEC. 110. ESTABLISHMENT OF BINDING ALLOCATION OF

2 RESPONSIBILITY PROCESS.

3 The Comprehensive Environmental Response, Com4 pensation, and Liability Act of 1980 (42 U.S.C. 9601 et

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

6 title:

7 ‘‘TITLE V—BINDING ALLOCA8 TION OF RESPONSIBILITY

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

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

‘‘Sec. 503. Specific rules and procedures.

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

documents.

‘‘Sec. 505. Civil and criminal penalties.

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

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

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

‘‘Sec. 509. Transition provisions.

‘‘Sec. 510. Voluntary settlements.

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

9 ‘‘SEC. 501. GENERAL RULES GOVERNING BINDING ALLOCA10 TIONS OF RESPONSIBILITY.

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

12 appoint panels of administrative law judges to perform ex13 pedited administrative proceedings, to be known as ‘bind14 ing allocations of responsibility’, for purposes of determin15 ing the liability of potentially responsible parties at Na16 tional Priority List sites. Each such panel shall be com17 posed of three administrative law judges appointed by the

18 Administrator under section 3105 of title 5, United States

19 Code, and shall be known as an ‘allocation panel’.
26

•HR 4161 SC

1 ‘‘(b) RULES OF DECISION.—The decisions of alloca2 tion panels under this title shall be rendered based on the

3 provisions of this Act and the court decisions interpreting

4 such provisions.

5 ‘‘(c) RELATIONSHIP TO NATURAL RESOURCES DAM6 AGE.—Binding allocations of responsibility shall not ad7 dress or affect the liability of any person with respect to

8 damage to natural resources under section 107(a)(1)(C).

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

10 PANELS.

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

12 may not be appointed to an allocation panel under section

13 501 unless the judge completes at least 40 hours of edu14 cation and training, as specified by the Administrator, in

15 the following subject areas:

16 ‘‘(1) The operation of this Act and the regula17 tions promulgating this Act.

18 ‘‘(2) The science of soil and groundwater con19 tamination and the technology for treating such con20 tamination.

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

22 have the power and authority to perform all functions nec23 essary to administer and perform the binding allocations

24 of responsibility, including the power to—
27

•HR 4161 SC

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

2 production of documents to any person;

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

4 concerned to provide all information relevant to a

5 binding allocation of responsibility, including the

6 production of copies of all documents and informa7 tion obtained pursuant to section 104(e) or pursuant

8 to similar State law;

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

10 proof, dispose of procedural requests, and issue all

11 necessary orders;

12 ‘‘(4) administer oaths and affirmations and

13 take affidavits;

14 ‘‘(5) examine witnesses and receive documen15 tary or other evidence;

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

17 parties as the allocation panel deems appropriate

18 and consistent with the expedited nature of the bind19 ing allocation of responsibility process;

20 ‘‘(7) admit or exclude evidence;

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

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

23 and the guardian of the Fund, to attend conferences

24 for the settlement or simplification of the issues or

25 the expedition of the proceedings;
28

•HR 4161 SC

1 ‘‘(10) require, at any time, that potentially re2 sponsible parties wishing to present similar legal or

3 factual arguments use a common spokesman or con4 solidated briefing for the presentation of such facts

5 and legal positions;

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

7 are necessary to conduct the binding allocation of re8 sponsibility, including secretarial and clerical serv9 ices, investigative services, and computer information

10 and database management services;

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

12 documents associated with the binding allocation of

13 responsibility shall be maintained and made avail14 able to all parties to the binding allocation of re15 sponsibility in accordance with section 506; and

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

17 necessary for the maintenance of order and for the

18 efficient, fair, and impartial adjudication of issues

19 arising in the binding allocation of responsibility.

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

21 have the power of subpoena to collect information nec22 essary or appropriate for conducting the binding allocation

23 of responsibility or for otherwise implementing this sec24 tion. This authority shall include the power to compel the

25 attendance and testimony of witnesses and the production
29

•HR 4161 SC

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

2 other information that the allocation panel deems nec3 essary. Witnesses shall be paid the same fees and mileage

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

5 In the event of contumacy or failure or refusal of any per6 son to obey any such subpoena, any district court of the

7 United States in which venue is proper shall have jurisdic8 tion to order any such person to comply with such

9 subpoena.

10 ‘‘(d) INFORMAL RULES OF EVIDENCE.—In conduct11 ing the binding allocation of responsibility, an allocation

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

13 but shall instead use such informal rules of evidence and

14 evidentiary procedures, such as those set forth at sections

15 22.22 and 22.23 of title 40 of the Code of Federal Regula16 tions, as will promote the expeditious completion of the

17 proceeding.

18 ‘‘(e) NATIONWIDE SERVICE OF PROCESS.—Any docu19 ment required to be served on a party under this title may

20 be served in any district where the person is found, re21 sides, transacts business, or has appointed an agent for

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

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

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

25 if the party is not represented by counsel.
30

•HR 4161 SC

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

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

3 ‘‘(1) IN GENERAL.—A binding allocation of re4 sponsibility with respect to a National Priority List

5 site shall be initiated by filing a petition with the Of6 fice of the Administrative Law Judges of the Envi7 ronmental Protection Agency. Such a petition may

8 be filed by the Administrator or the State where the

9 National Priority List site is located.

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

11 a State shall file a petition to initiate a binding allo12 cation of responsibility at a National Priority List

13 site not later than 30 days after initiating the reme14 dial investigation study (or its equivalent) for the

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

16 than 30 days after initiation of the remedial inves17 tigation study (or its equivalent), all governmental

18 response costs incurred or contracted for prior to the

19 filing of the petition shall be allocated entirely to the

20 orphan share.

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

22 initiate the binding allocation of responsibility pro23 ceeding shall identify the petitioner and shall include

24 all relevant information reasonably available con25 cerning—
31

•HR 4161 SC

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

2 status, and environmental condition of the Na3 tional Priority List site;

4 ‘‘(B) the identity and address of each per5 son believed by the petitioner to be a liable

6 party and the basis for such belief;

7 ‘‘(C) any proposed questions and document

8 requests that the petitioner believes should be

9 included in the allocation panel’s first informa10 tion request and document request; and

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

12 that the petitioner believes may be raised in the

13 binding allocation of responsibility.

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

15 served by mail, publication, or otherwise on the Ad16 ministrator, the State where the site is located, and

17 each potentially responsible party identified in the

18 petition. Within 20 days after the filing of the peti19 tion, the Hearing Clerk of the Office of Administra20 tive Law Judges shall cause a notice of the filing of

21 the petition, together with a brief description of the

22 site and a list of all potentially responsible parties

23 identified in the petition, to be published in the Fed24 eral Register. The petitioner shall cause a similar

25 notice, description, and list to be published in a
32

•HR 4161 SC

1 newspaper of general circulation within the State

2 where the site is located.

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

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

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

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

7 any other relevant Federal or State statutory or reg8 ulatory authority, for all potentially responsible par9 ties. All information, answers, and documents dis10 covered in such investigation or search and relevant

11 to any aspect of the binding allocation of responsibil12 ity shall, simultaneously with the filing of the peti13 tion, be filed in the document repository for the

14 binding allocation of responsibility. If the allocation

15 panel determines that the Administrator or the

16 State failed to conduct a diligent search for poten17 tially responsible parties in accordance with this

18 paragraph, and if another party performs additional

19 investigations and successfully identifies additional

20 potentially responsible parties, then the allocation

21 panel shall credit all of the reasonable costs of such

22 additional search against the assigned share, if any,

23 of the party that performed such additional inves24 tigation or search.
33

•HR 4161 SC

1 ‘‘(6) APPOINTMENT OF GUARDIAN FOR THE

2 HAZARDOUS SUBSTANCE SUPERFUND AND THE RET3 ROACTIVE LIABILITY FUND.—Any petition filed by

4 the Administrator shall include the name and ad5 dress of the person appointed to serve as the guard6 ian for the Hazardous Substance Superfund and the

7 Retroactive Liability Fund for that binding alloca8 tion of responsibility. In any case where a petition

9 is initiated by a State, the Administrator shall notify

10 the Hearing Clerk of the Office of the Administra11 tive Law Judges within 10 days after the petition is

12 filed of the name and address of the person des13 ignated by the Administrator as the guardian for the

14 Hazardous Substance Superfund and the Retro15 active Liability Fund. If the Environmental Protec16 tion Agency is also a potentially responsible party or

17 a liable party with respect to the National Priority

18 List site concerned, then the agency may participate

19 in the binding allocation of responsibility with regard

20 to such liability, but the person designated as the

21 guardian shall not represent the agency with regard

22 to the agency’s status as a potentially responsible

23 party or liable party.

24 ‘‘(b) IDENTIFICATION OF POTENTIALLY RESPON25 SIBLE PARTIES.—
34

•HR 4161 SC

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

2 30 days after receipt of a copy of a petition or after

3 publication in the Federal Register of a notice of the

4 filing of an initial petition (whichever is earlier)

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

6 any potentially responsible party may file an initial

7 statement setting forth—

8 ‘‘(i) any defenses to liability;

9 ‘‘(ii) any equitable considerations pertain10 ing to any party’s potential liability;

11 ‘‘(iii) any additional facts and issues rel12 evant to the binding allocation of responsibility;

13 ‘‘(iv) any proposed questions or document

14 requests that the person filing the statement

15 believes should be included in the first informa16 tion request issued by the allocation panel; and

17 ‘‘(v) the name and address of any addi18 tional person or persons that the person filing

19 the statement believes may be a liable party at

20 the National Priority List site and all reason21 ably available information as to the relationship

22 between each proposed additional party and the

23 site.
35

•HR 4161 SC

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

2 the Hearing Clerk and served on all parties named

3 in the petition and named in such initial statement.

4 ‘‘(2) INFORMATION REQUESTS AND REQUESTS

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

6 than 30 days after the filing of the petition, the allo7 cation panel shall mail initial information requests

8 and requests for production of documents to the

9 guardian, the State, all potentially responsible par10 ties identified in the petition, and all additional par11 ties identified in the initial statements. Responses to

12 such requests shall be made in accordance with this

13 paragraph and section 504.

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

15 any information request or request for production of

16 documents, such person shall file a response with the

17 Hearing Clerk. For good cause shown, the allocation

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

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

20 continuing obligation to supplement its response

21 upon the receipt of additional relevant information.

22 ‘‘(3) ADDITIONAL NOMINATIONS OF POTEN23 TIALLY RESPONSIBLE PARTIES.—The parties may

24 identify and nominate additional potentially respon25 sible parties until the expiration of the 120-day pe-
36

•HR 4161 SC

1 riod beginning on the date of filing of the petition.

2 Any nominations received by the Hearing Clerk after

3 that period may be disregarded by the allocation

4 panel. Each nomination shall include all reasonably

5 available information supporting the assertion that

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

7 the earliest possible time. Any party making an ad8 ditional nomination shall serve notice of such nomi9 nation on the nominated party and file a copy of

10 such notice with the Hearing Clerk. The nominated

11 party may file its initial response not later than 30

12 days after receipt of the notice. The allocation panel

13 may issue information requests and requests for the

14 production of documents to any nominated party at

15 any time.

16 ‘‘(4) INITIAL LIST OF ALL POTENTIALLY RE17 SPONSIBLE PARTIES.—Within six months after the

18 filing of the petition, the allocation panel shall cause

19 to be published in the Federal Register and a news20 paper of general circulation in the State where the

21 site is located a list identifying all parties that the

22 allocation panel preliminarily deems to be potentially

23 responsible parties with respect to the site. The allo24 cation panel also shall attempt to mail a copy of the

25 list to all parties to the binding allocation of respon-
37

•HR 4161 SC

1 sibility. The allocation panel shall reject the nomina2 tion of any person as a liable party or potentially re3 sponsible party if it finds that the nomination al4 leges no connection between the nominated person

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

6 on its own motion or the motion of a potentially re7 sponsible party, additional potentially responsible

8 parties at any time before issuance of the final bind9 ing allocation of responsibility.

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

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

12 shall issue a list identifying all potentially responsible par13 ties that the allocation panel determines contributed only

14 one hundred pounds or one hundred liters of material con15 taining hazardous substances at the facility (or such

16 greater or lesser amount as the Administrator may deter17 mine by regulation), to be known as ‘de micromis parties’.

18 The allocation panel shall base the determination on an

19 evaluation of all evidence received at the time of the issu20 ance of the list with respect to the amount of hazardous

21 substances contributed by potentially responsible parties.

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

23 micromis party of its inclusion on the list issued under

24 paragraph (1) not later than 20 days after issuing the list.
38

•HR 4161 SC

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

2 parties is exempt from liability to the United States and

3 shall have no other liability (including liability for con4 tribution), under Federal or State law, to any person for

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

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

7 other actions after being included on the list that would

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

9 ‘‘(d) IDENTIFICATION OF LIABLE PARTIES AND DE10 TERMINATION OF ASSIGNED SHARES.—

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

12 Unless the allocation panel determines that it would

13 unduly delay the process, the guardian, the State,

14 and any potentially responsible party may file an al15 location advocacy paper with the Hearing Clerk not

16 later than 30 days after the publication of the initial

17 list of potentially responsible parties in the Federal

18 Register. Any such allocation advocacy paper, which

19 shall be served on the guardian, the State, and each

20 potentially responsible party, shall be a concise

21 statement, together with citations to relevant sup22 porting evidence and law, of the party’s position

23 with regard to—

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

25 should be used in determining whether a poten-
39

•HR 4161 SC

1 tially responsible party at the site is a liable

2 party; and

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

4 subsection (g)(2) should be applied to deter5 mine the assigned share of each liable party.

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

7 days after the publication of the initial list of poten8 tially responsible parties in the Federal Register, the

9 allocation panel shall issue its first allocation report

10 tentatively specifying the criteria to be used in iden11 tifying the liable parties, tentatively specifying how

12 the allocation factors will be applied to the case to

13 determine assigned shares, and setting forth the

14 process and schedule that will be used to allow par15 ties the opportunity to present written evidence and

16 argument regarding how such criteria and factors

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

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

19 potentially responsible party.

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

21 The guardian, the State, and each potentially re22 sponsible party may file an allocation advocacy

23 paper with the Hearing Clerk not later than 60 days

24 after receipt of the first allocation report. The allo25 cation advocacy paper, which shall be served on the
40

•HR 4161 SC

1 guardian, the State, and each potentially responsible

2 party, shall be the primary opportunity for the

3 guardian, the State, and each potentially responsible

4 party to present evidence and argument regarding

5 how the liability criteria and the allocation factors

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

7 the person filing the paper, how those criteria and

8 factors should be applied to other potentially respon9 sible parties at the site.

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

11 party may request a hearing on the determination

12 that such party is a liable party and on the deter13 mination of its assigned share. The allocation panel

14 may hold such a hearing if the allocation panel de15 termines that it would expedite or materially assist

16 in the resolution of disputed factual or legal issues.

17 The allocation panel shall have broad discretion in

18 managing the conduct of any such hearing, including

19 limiting the time available to each party and requir20 ing that parties with generally similar interests be

21 represented by a single spokesperson or common

22 counsel. The allocation panel may allow or prohibit

23 the cross-examination of witnesses.

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

25 present written evidence or argument on whether it,
41

•HR 4161 SC

1 or any other potentially responsible party, is a liable

2 party and on the appropriate assigned share for it3 self or any other potentially responsible party. A po4 tentially responsible party shall be deemed a liable

5 party if the allocation panel determines that the pre6 ponderance of the evidence supports the conclusion

7 that such party is liable.

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

9 the submission of advocacy papers and at the con10 clusion of any hearings, the allocation panel shall

11 issue a second allocation report identifying all liable

12 parties at the site and specifying the assigned share

13 of each liable party. If the second allocation report

14 changes or expands the list of potentially responsible

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

16 allocation report, then the second report shall so

17 specify and provide a brief explanation of any such

18 change. The second allocation report shall be served

19 on the guardian, the State, all potentially responsible

20 parties, and all liable parties.

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

22 ‘‘(1) ORPHAN SHARE ADVOCACY PAPER.—Un23 less the allocation panel determines that it would un24 duly delay the process, the guardian, the State, and

25 each liable party may file an orphan share advocacy
42

•HR 4161 SC

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

2 day period beginning on the date of issuance of the

3 second allocation report. The orphan share advocacy

4 paper shall be the primary opportunity for the

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

6 written evidence and argument as to which liable

7 parties are orphan parties whose assigned share

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

9 orphan share.

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

11 expiration of the 30-day period referred to in para12 graph (1), the allocation panel shall issue an orphan

13 share allocation report identifying the orphan share.

14 The orphan share report shall be served on the

15 guardian, the State, all potentially responsible par16 ties, and all liable parties.

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

18 At any time during the period beginning six months after

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

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

21 identifying all potentially responsible parties that the allo22 cation panel determines did not contribute any amount of

23 hazardous substances to the National Priority List site.

24 The allocation panel shall base the determination on an

25 evaluation of all evidence received at the time of the issu-
43

•HR 4161 SC

1 ance of the list with respect to the amount of hazardous

2 substances contributed by potentially responsible parties.

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

4 party of its inclusion on the list issued under paragraph

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

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

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

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

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

10 making such settlement payment that would give risk to

11 a separate basis for their liability under this Act.

12 ‘‘(g) FINAL BINDING ALLOCATION OF RESPONSIBIL13 ITY DECISION.—

14 ‘‘(1) DECISION.—(A) Not later than the dead15 line set forth in subparagraph (B), the allocation

16 panel shall issue a final binding allocation of respon17 sibility decision (in this subsection referred to as the

18 ‘final BAR decision’) based on the allocation factors

19 listed in paragraph (2). The panel shall include the

20 Government’s costs of carrying out the allocation as

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

22 BAR decision. The decision shall include a list of all

23 potentially responsible parties, a list of all liable par24 ties and the assigned share for each (including all de

25 minimis parties as determined under paragraph (3)),
44

•HR 4161 SC

1 a list of all orphan parties and the portion of the as2 signed share of each orphan party that is assigned

3 to the orphan share, and the total orphan share as4 signed to the Fund and to the Retroactive Liability

5 Fund. Where an orphan party is able to pay only a

6 portion of its assigned share, the allocation panel

7 shall allocate to the orphan share the portion of the

8 assigned share that the party is unable to pay and

9 require the party to pay the remainder. The final

10 BAR decision shall provide a concise explanation of

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

12 in whole or in part, of a compilation of the first allo13 cation report, the second allocation report, and the

14 orphan share report.

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

16 later than 18 months after the date of publication

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

18 a binding allocation of responsibility has been filed,

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

20 final decision shall be issued not later than 24

21 months after such date.

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

23 panel shall determine the assigned share of each lia24 ble party based on the following factors:
45

•HR 4161 SC

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

2 contribution to a discharge, release, or disposal

3 of a hazardous substance can be distinguished.

4 ‘‘(B) The amount of hazardous substances

5 contributed by the liable party at the site con6 cerned, compared to the total amount of haz7 ardous substances at that site.

8 ‘‘(C) The degree of toxicity of the hazard9 ous substance contributed by the liable party.

10 ‘‘(D) The degree of involvement by the lia11 ble party in the generation, transportation,

12 treatment, storage, or disposal of the hazardous

13 substance.

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

15 liable party with respect to the hazardous sub16 stance concerned, taking into account the char17 acteristics of such hazardous substance.

18 ‘‘(F) The degree of cooperation by the lia19 ble party with Federal, State, or local officials

20 to prevent any harm to the public health or the

21 environment.

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

23 liability and the appropriate share of the liable

24 party.

25 ‘‘(H) The ability to pay of the liable party.
46

•HR 4161 SC

1 ‘‘(I) Any other equitable factors deemed

2 appropriate.

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

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

5 issuance of the final BAR decision, the allocation

6 panel shall issue a list identifying all potentially re7 sponsible parties that the allocation panel deter8 mines contributed only 1.0 percent or less of the

9 total quantity of hazardous substances present at

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

11 minimis parties’.

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

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

14 de minimis parties under subparagraph (A), which15 ever is earlier, the Administrator shall make a firm

16 written offer of settlement to all de minimis parties.

17 The amount of the settlement offer for a de minimis

18 party shall be based on the Environmental Protec19 tion Agency’s estimate of the total cleanup cost at

20 the site multiplied by the de minimis party’s allo21 cated share as determined by the allocation panel

22 and increased by a reasonable premium (expressed

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

24 and complete resolution of liability, including consid25 eration of whether the remedy at the site will entail
47

•HR 4161 SC

1 multiple phases or operable units. All settlement of2 fers by the Administrator to de minimis parties at

3 the same site shall be based on the same estimate

4 of cleanup costs and the same premium percentage.

5 The settlement offer under this subparagraph is not

6 subject to judicial review.

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

8 a settlement offer, but any acceptance of the offer

9 must be made within 60 days after receipt of the

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

11 resolve its liability to the United States by paying

12 the amount of the offer to the Hazardous Substance

13 Superfund. Such settlement may not be reopened

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

15 ‘‘(D) De minimis parties that accept the settle16 ment offer and pay the amount of the offer shall

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

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

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

20 that they take no other actions after making such

21 settlement payment that would give risk to a sepa22 rate basis for their liability under this Act.

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

24 under this paragraph that represent the allocated

25 shares of de minimis parties at a site shall be paid
48

•HR 4161 SC

1 by the Administrator directly to the person perform2 ing the response action at the site. All proceeds from

3 de minimis settlements under this paragraph that

4 represent premiums paid by de minimis parties at

5 the site shall be earmarked in the Hazardous Sub6 stance Superfund to be used specifically for costs of

7 response action at the site. Any amounts of such set8 tlements remaining in the Fund after completion of

9 the response action shall be available in the

10 Superfund for general use.

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

12 allocation of responsibility decision shall be served

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

14 The Hearing Clerk shall cause a notice of the bind15 ing allocation of responsibility decision to be pub16 lished in the Federal Register and in a newspaper of

17 general publication in the State where the site is

18 located.

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

20 of responsibility decision shall be binding as to all

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

22 costs incurred under section 107(a)(1)(A), (B), or

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

24 binding allocation of responsibility decision shall be

25 binding on all persons, including, without limitation,
49

•HR 4161 SC

1 the United States, any affected State or local gov2 ernmental agency or Indian Tribe, any alleged or

3 nominated potentially responsible party (regardless

4 of whether such party participates in the binding al5 location of responsibility), and the public.

6 ‘‘(6) EFFECT ON OTHER PROCEEDINGS.—A de7 termination that a person is a liable party under a

8 binding allocation of responsibility proceeding is ap9 plicable only with respect to liability being assigned

10 in the proceeding and not with respect to liability

11 being determined in any other criminal, civil, or ad12 ministrative proceeding.

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

14 REQUESTS FOR PRODUCTION OF DOCU15 MENTS.

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

17 any information request or request for production of docu18 ments from the allocation panel during a binding alloca19 tion of responsibility must provide full and timely re20 sponses to the request.

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

22 information requests and requests for production of docu23 ments shall include a certification by a responsible rep24 resentative who meets the criteria established in section
50

•HR 4161 SC

1 270.11(a) of title 40 of the Code of Federal Regulations

2 that the answers—

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

4 knowledge;

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

6 of records in the possession or control of the person

7 to whom the request was directed;

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

9 current and former officers, directors, employees,

10 and agents of the person to whom the request was

11 directed;

12 ‘‘(4) accurately reflect information obtained in

13 the course of conducting such search and such

14 inquiry;

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

16 understands that there is a duty to supplement any

17 such answers if, during the binding allocation of re18 sponsibility, any significant additional, new, or dif19 ferent information becomes known or available to

20 the answerer; and

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

22 understands that there are significant penalties for

23 submitting false information, including the possibil24 ity of fine and imprisonment for knowing violations.
51

•HR 4161 SC

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

2 sanction, any person who fails to answer an information

3 request or request for production of documents, and who

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

5 assigned share of up to 500 percent of whatever its as6 signed share would otherwise have been, or up to 50 per7 cent of the total liability at the site, whichever is greater.

8 If this results in a binding allocation of responsibility that

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

10 the excess shall be deposited into the Hazardous Sub11 stance Superfund.

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

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

14 submit a complete and timely answer to an allocation pan15 el’s information request or request for production of docu16 ments or other discovery request, or who submits a re17 sponse that lacks the certification required under section

18 504(b), or who makes any false or misleading material

19 statement or representation in any submission to the allo20 cation panel during the binding allocation of responsibility

21 process, including statements or representations in con22 nection with the nomination of another potentially respon23 sible party, shall be subject to civil penalties of up to

24 $10,000 per day of violation. The violation shall be

25 deemed a continuing one until such time as the request
52

•HR 4161 SC

1 is answered or the necessary certification is submitted or

2 the false or misleading statement or representation is cor3 rected. Such penalties may be assessed by the President

4 in accordance with section 109 or by any other party in

5 a citizen suit brought under section 310. A prevailing

6 plaintiff in such a citizen suit shall be awarded its attor7 neys fees and up to 50 percent of the penalty imposed

8 by the court.

9 ‘‘(b) CRIMINAL PENALTIES.—Any person who know10 ingly makes any false material statement or representation

11 in the response to an allocation panel’s information re12 quest or request for the production of documents or other

13 discovery request, or in any other submission to the alloca14 tion panel during the binding allocation of responsibility,

15 including statements or representations in connection with

16 the nomination of another potentially responsible party,

17 may be fined under title 18, United States Code, impris18 oned for not more than 2 years, or both.

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

20 WAIVER.

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

22 shall establish and maintain a document repository where

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

24 reports, answers to information requests and requests for

25 production of documents by the allocation panel, answers
53

•HR 4161 SC

1 to Federal or State information requests or requests for

2 the production of documents issued prior to the filing of

3 the petition, produced documents, and all other similar

4 material shall be maintained and organized. The docu5 ments and information in the document repository shall

6 be available only to the parties to the binding allocation

7 of responsibility for review and copying at their own ex8 pense, subject only to the confidentiality provisions of sub9 section (b). All responses to any information request or

10 request for production of documents by the allocation

11 panel shall be filed with the clerk for the document reposi12 tory and need not be served on other potentially respon13 sible parties, the State, or the guardian.

14 ‘‘(b) CONFIDENTIALITY.—(1) All pleadings, docu15 ments, and materials submitted to the allocation panel or

16 placed in the document repository, together with the

17 record of any depositions or testimony adduced during the

18 binding allocation of responsibility, shall be confidential

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

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

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

22 allocation of responsibility proceeding shall maintain such

23 pleadings, documents, and materials, together with the

24 record of any depositions or testimony adduced during the

25 binding allocation of responsibility, as confidential. Such
54

•HR 4161 SC

1 material shall not be discoverable or admissible in any

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

3 legislative proceeding of any kind whatsoever, except—

4 ‘‘(A) to the extent necessary to collect or other5 wise enforce in court the assigned share of a liable

6 party as determined by the binding allocation of

7 responsibility;

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

9 binding allocation of responsibility;

10 ‘‘(C) in any new binding allocation of respon11 sibility proceeding concerning the same site; and

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

13 involving a different site where the allocation panel

14 determines that the sites are related and that speci15 fied documents from the first binding allocation of

16 responsibility could materially assist the second

17 binding allocation of responsibility.

18 ‘‘(2) Notwithstanding paragraph (1)(D), if the origi19 nal of any document or material submitted to the alloca20 tion panel or placed in the document repository during the

21 binding allocation of responsibility was, while in the pos22 session of the party which provided it, otherwise discover23 able or admissible, then such original document, if subse24 quently sought from such party, shall remain discoverable

25 or admissible. If a fact covered in any deposition or testi-
55

•HR 4161 SC

1 mony adduced during the binding allocation of responsibil2 ity was, in the knowledge of the witness or deponent, oth3 erwise discoverable or admissible, then such testimony, if

4 subsequently sought from such other party, shall remain

5 discoverable or admissible.

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

7 documents or information pursuant to the binding alloca8 tion of responsibility proceeding shall not be deemed to

9 be a waiver of any privilege, applicable to the original doc10 ument or fact, under any Federal or State law, regulation,

11 or rule of discovery or evidence.

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

13 binding allocation of responsibility receives any request for

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

15 any depositions or testimony adduced in a binding alloca16 tion of responsibility, such party shall promptly notify the

17 person who originally submitted such item and shall pro18 vide such submitting person the opportunity to assert and

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

20 binding allocation of responsibility shall release or provide

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

22 record of any depositions or testimony adduced therein,

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

24 responsibility, except in compliance with an order from a

25 court.
56

•HR 4161 SC

1 ‘‘(e) CIVIL PENALTY FOR VIOLATION OF CONFIDEN2 TIALITY REQUIREMENTS.—Any person who fails to main3 tain the confidentiality of any pleadings, documents, or

4 materials, or the record of any deposition or testimony ad5 duced during the binding allocation of responsibility, or

6 who releases any such information in violation of this sec7 tion, shall be subject to a civil penalty of up to $25,000

8 per violation. Such a penalty may be assessed by the Presi9 dent in accordance with section 109 or by any other party

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

11 plaintiff in such a citizen suit shall be awarded its attor12 neys fees and up to 50 percent of the penalty imposed

13 by the court.

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

15 ‘‘(a) FINAL AGENCY ACTION.—The binding alloca16 tion of responsibility decision of the allocation panel shall

17 constitute final agency action pursuant to section 706 of

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

19 Administrator in situations of fraud or gross misconduct.

20 ‘‘(b) JUDICIAL REVIEW.—

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

22 shall have jurisdiction to review, modify, or enjoin

23 any aspect of any binding allocation of responsibility

24 proceeding except as expressly set forth in this sub25 section. No aspect of any action, decision, ruling, or
57

•HR 4161 SC

1 determination by an allocation panel in any binding

2 allocation of responsibility proceeding shall be sub3 ject to administrative or judicial review in any Fed4 eral or State court until after the final binding allo5 cation of responsibility decision (in this subsection

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

7 the allocation panel. Thereafter the Administrator,

8 the guardian, the State, or any person determined

9 by the allocation panel to be a liable party may ob10 tain judicial review of a final BAR decision by filing

11 a petition for review with the United States Court

12 of Appeals for the Circuit in which the facility is lo13 cated or for the District of Columbia.

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

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

16 final BAR decision by the allocation panel. The peti17 tion shall set forth either the specific assigned share

18 of liability that the petitioner believes should have

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

20 by the guardian, the assigned share that the guard21 ian believes should have been assigned to the orphan

22 share) in the binding allocation of responsibility, or

23 stating specifically that the petitioner believes it

24 should not have been found to have any liability at

25 all.
58

•HR 4161 SC

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

2 BAR decision shall be conducted on the administra3 tive record, which shall include all materials relating

4 to the issues raised on appeal by the petitioner that

5 are contained in the document repository described

6 in section 506(a). The court shall set aside the bind7 ing allocation of responsibility only if it is found to

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

9 contrary to constitutional right, power, privilege, or

10 immunity.

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

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

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

18 ‘‘(5) CONDUCT OF RESPONSE ACTION DURING

19 PENDENCY OF REVIEW.—During the pendency of a

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

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

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

24 If the petitioner is a liable party and the court

25 adopts the assigned share proposed by the peti-
59

•HR 4161 SC

1 tioner, then the difference between that share and

2 the share originally assigned to the petitioner shall

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

4 guardian and the court adopts the orphan share pro5 posed by the petitioner, then the matter shall be re6 manded to the allocation panel for the issuance, as

7 soon as possible, of a revised binding allocation of

8 responsibility decision in accordance with the deci9 sion of the court.

10 ‘‘(7) LIABILITY OF UNSUCCESSFUL PETI11 TIONER.—(A) In the case of a petitioner who is a

12 liable party petitioning for a change in the petition13 er’s assigned share, and the court does not adopt the

14 assigned share proposed by the petitioner, the fol15 lowing provisions apply:

16 ‘‘(i) The petitioner shall reimburse all

17 other parties that participated in the appeal for

18 the actual attorneys’ fees and costs that they

19 incurred in defending the binding allocation of

20 responsibility decision.

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

22 settlement based on its assigned share if the pe23 titioner notifies the court of such intention

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

25 petition.
60

•HR 4161 SC

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

2 as described in clause (ii), the petitioner is con3 sidered to have not resolved its liability to the

4 United States and is subject to civil action

5 under section 106, 107(a), and 113 for the fol6 lowing response costs with respect to the Na7 tional Priority List site concerned:

8 ‘‘(I) The assigned share of the peti9 tioner, as determined in the final BAR de10 cision, plus

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

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

13 subject to claims for contribution from, and

14 may make claims for contribution against, other

15 unsuccessful petitioners with respect to the Na16 tional Priority List site concerned.

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

18 party petitioning for a determination that the peti19 tioner is not liable with respect to the site concerned

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

21 a successor to, or a parent or subsidiary of, a com22 pany which the petitioner believes should be assigned

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

24 the petitioner is liable for its assigned share as de25 termined in the final BAR decision.
61

•HR 4161 SC

1 ‘‘SEC. 508. COLLECTION, ENFORCEMENT, AND IMPLEMEN2 TATION.

3 ‘‘(a) COLLECTION.—

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

5 binding allocation of responsibility decision is made

6 with respect to a National Priority List site, any

7 creditor party may, in accordance with paragraph

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

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

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

11 determined under the binding allocation of re12 sponsibility.

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

14 is the Hazardous Substance Superfund, or the

15 Retroactive Liability Fund the orphan share, as

16 determined under the binding allocation of re17 sponsibility.

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

19 either a liable party or the Hazardous Sub20 stance Superfund, or the Retroactive Liability

21 Fund, any attorneys’ fees incurred by the credi22 tor party in a judicial action seeking to recover

23 costs from the debtor party.

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

25 by a creditor party from a debtor party shall be car26 ried out in accordance with the following provisions:
62

•HR 4161 SC

1 ‘‘(A) The creditor party shall file a cer2 tified copy of the final decision of the binding

3 allocation of responsibility in the United States

4 District Court for the district in which the site

5 is located.

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

7 statement with the same court specifying the

8 actions taken and the costs incurred by the

9 creditor party, and stating that such actions

10 and costs are not inconsistent with the National

11 Contingency Plan.

12 ‘‘(C) The creditor party shall serve a de13 mand notice to each debtor party against whom

14 enforcement is sought and shall deliver a copy

15 of each such notice to the Administrator and

16 the State in which the site is located. The de17 mand notice shall specify the total amount of

18 costs covered by the notice, state a demand

19 amount (consisting of the debtor party’s as20 signed share or, with regard to the Fund, the

21 orphan share), and demand that the debtor

22 party pay such demand amount within 30 days

23 after receipt of the notice. Any demand notice

24 served by a creditor party shall provide that a

25 debtor party may pay the demand amount over
63

•HR 4161 SC

1 a period of time in installment payments. A

2 copy of the demand notice shall be filed with

3 the United States District Court for the district

4 in which the site is located.

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

6 or expenditures of a continuing nature, verified

7 statements and demand notices shall be filed

8 with the court and delivered to the debtor par9 ties and the guardian quarterly.

10 ‘‘(E) Where several liable parties, or a lia11 ble party and the Administrator or the State,

12 each take actions or incur costs not inconsistent

13 with the National Contingency Plan, different

14 demand notices may be issued concurrently.

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

16 of a challenge to collection duly filed in accordance with

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

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

19 specified in a demand notice within 30 days after receipt

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

21 installments, within 30 days after an installment payment

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

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

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

25 the demand notice. In the case of the orphan share, if the
64

•HR 4161 SC

1 Hazardous Substance Superfund or the Retroactive Li2 ability Fund fails to pay the sum specified in a demand

3 notice within 30 days after receipt of the notice, the Fund

4 or the Retroactive Liability Fund shall be liable for inter5 est thereon and damages of up to the amount equal to

6 2 times the sum specified in the demand notice.

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

8 be no administrative or judicial review of any aspect of

9 a demand notice filed and delivered pursuant to subsection

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

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

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

13 a petition with the allocation panel that issued the binding

14 allocation of responsibility decision contending that the

15 costs reflected in the demand notice were incurred for ac16 tions inconsistent with the National Contingency Plan. If

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

18 an expedited review of the matter. The review shall be lim19 ited solely to the issue of the alleged inconsistency of the

20 response actions and costs with the National Contingency

21 Plan. The person challenging the demand notice shall have

22 the burden of proof that such actions and the claimed

23 costs are inconsistent with the National Contingency Plan.

24 The allocation panel’s decision shall not be subject to judi-
65

•HR 4161 SC

1 cial review. Payment need not be made, and no interest

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

3 ‘‘(d) SUBSEQUENT ADDITIONS TO ORPHAN

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

5 whether by the Federal or State government or by any

6 other creditor party, against a liable party results in a ju7 dicial or administrative determination that such liable

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

9 will be added to the orphan share amount and will be re10 coverable from the Hazardous Substance Superfund.

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

12 that pay their assigned share and comply with the binding

13 allocation of responsibility decision shall have no other li14 ability, under Federal or State law, to any person for costs

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

16 to sue by the Federal Government and the State govern17 ment concerned, except that the binding allocation of re18 sponsibility decision shall not affect any contract for insur19 ance or indemnification.

20 ‘‘SEC. 509. TRANSITION PROVISIONS.

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

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

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

24 of section 107(a)(1), or section 113, or under any other

25 Federal or State law or regulation, for the recovery of re-
66

•HR 4161 SC

1 sponse costs, contribution, or performance of response ac2 tions regarding any National Priority List site until 90

3 days after a final binding allocation of responsibility is

4 issued.

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

6 the following exceptions:

7 ‘‘(1) ADMINISTRATIVE ORDERS FOR EMER8 GENCY REMOVAL ACTIONS.—The President may

9 issue an order under section 106, prior to the issu10 ance of a final binding allocation of responsibility, if

11 the order is limited to those actions required to im12 plement immediate risk reduction measures pending

13 the issuance of the final binding allocation of re14 sponsibility decision.

15 ‘‘(2) CONTINUATION OF PENDING RESPONSE

16 ACTIONS.—In any case where, as of the date of en17 actment of this title, the Administrator or a State

18 has already issued a binding contract for the per19 formance of a remedial investigation/feasibility study

20 or has issued an administrative order or executed a

21 consent decree for the performance of any response

22 action, the binding allocation of responsibility proc23 ess shall not affect the timing or manner of imple24 mentation of such response actions.

25 ‘‘(c) STAY OF EXISTING ACTIONS.—
67

•HR 4161 SC

1 ‘‘(1) STAY OF PENDING ENFORCEMENT AC2 TIONS.—In any case where, as of the date of enact3 ment of this title, the Administrator or the State has

4 already initiated any administrative or judicial en5 forcement action regarding the liability of any party

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

7 section 107(a)(1), or section 113, or under any other

8 Federal or State law or regulation for the response

9 costs, contribution, or performance of response ac10 tions, such action shall be automatically stayed until

11 90 days after a binding allocation of responsibility is

12 issued, any judicial review of such allocation is com13 pleted, and a final administrative or judicial alloca14 tion decision is rendered.

15 ‘‘(2) STAY OF PENDING PRIVATE PARTY LITIGA16 TION.—In any case where, as of the date of enact17 ment of this title, any private person has initiated

18 any administrative or judicial action regarding the

19 liability of any party at a National Priority List site

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

21 section 107(a)(1), or section 113, or under any other

22 Federal or State law or regulation for the response

23 costs, contribution, or performance of response ac24 tions, such action shall be automatically stayed until

25 90 days after a binding allocation of responsibility is
68

•HR 4161 SC

1 issued, any judicial review of such allocation is com2 pleted, and a final administrative or judicial alloca3 tion decision is rendered.

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

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

6 or cost incurred in any activity carried out pursuant to

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

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

9 response action or other activity carried out pursuant to

10 subsection (b), shall be included in, the subsequently is11 sued binding allocation of responsibility for such National

12 Priority List site. In conducting the binding allocation of

13 responsibility, the allocation panel shall, to the extent rea14 sonably possible, give credit for any prior costs incurred

15 or response actions performed at the National Priority

16 List site.

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

18 time period described in paragraph (2) shall not be count19 ed in determining the statute of limitations applicable to

20 any administrative or judicial action under section 106,

21 subparagraph (A), (B), or (D) of section 107(a)(1), or sec22 tion 113, or under any other Federal or State law or regu23 lation, for the recovery of costs, for contribution, or for

24 the investigation, cleanup, or remediation of any National

25 Priority List site.
69

•HR 4161 SC

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

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

3 a petition for the initiation of a binding allocation of re4 sponsibility for that site and ending on the date that a

5 binding allocation of responsibility is issued.

6 ‘‘SEC. 510. VOLUNTARY SETTLEMENTS.

7 ‘‘Prior to the issuance of a binding allocation of re8 sponsibility decision, any group of potentially responsible

9 parties may submit a private allocation for the National

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

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

12 voluntary binding allocation of responsibility meets the fol13 lowing criteria, the allocation panel shall promptly adopt

14 it as the binding allocation of responsibility:

15 ‘‘(1) The voluntary binding allocation of respon16 sibility shall be a binding allocation of 100 percent

17 of past, present, and future recoverable response

18 costs at the site.

19 ‘‘(2) The voluntary binding allocation of respon20 sibility shall not allocate any costs or require21 ments—

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

23 guardian agrees, in writing, to such allocation;

24 or
70

•HR 4161 SC

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

2 to the voluntary binding allocation of respon3 sibility.

4 ‘‘(3) Signatories to the voluntary binding alloca5 tion of responsibility shall be entitled to contribution

6 protection as specified in section 508(e). Such sig7 natories shall be prohibited from pursuing any cost

8 recovery action or contribution against any non-sig9 natory, but may seek additional recovery against

10 non-signatories based on a contract for insurance or

11 indemnification.

12 ‘‘(4) Signatories to the voluntary binding alloca13 tion of responsibility shall be entitled to enforce it in

14 the same manner as any binding allocation of re15 sponsibility final decision by the allocation panel.

16 ‘‘SEC. 511. NEW BINDING ALLOCATIONS OF RESPONSIBIL17 ITY.

18 ‘‘A binding allocation of responsibility shall constitute

19 a permanent determination of the assigned share of each

20 liable party and of the orphan share and, except for addi21 tions to the orphan share pursuant to section 508(d) and

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

23 the binding allocation of responsibility shall not be subject

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

25 date of the binding allocation of responsibility final deci-
71

•HR 4161 SC

1 sion. Thereafter a new binding allocation of responsibility

2 process shall be available only if the party requesting it

3 demonstrates that, due to new information not reasonably

4 available during first binding allocation of responsibility,

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

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

7 allocation of responsibility is granted, the same rules and

8 procedures described for initial binding allocations of re9 sponsibility apply to the new or revised binding allocation

10 of responsibility. New binding allocations of responsibility

11 shall only apply to funds actually expended after the effec12 tive date of the new binding allocation of responsibility de13 cision, with no credits for funds already expended. Subse14 quent new binding allocations of responsibility requests

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

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

17 SEC. 111. SITE REDEVELOPMENT.

18 Section 107 of the Comprehensive Environmental Re19 sponse, Compensation, and Liability Act of 1980 (42

20 U.S.C. 9607) is amended by adding the following at the

21 end thereof:

22 ‘‘(n) SITE REDEVELOPMENT.—

23 ‘‘(1) EXEMPTION.—No person who is a quali24 fied redeveloper shall be liable under this title for

25 costs or damages with respect to the release of any
72

•HR 4161 SC

1 hazardous substance or the threat of any such re2 lease from any facility solely by reason of an agree3 ment by such person to redevelop such facility after

4 a response action has been completed (as determined

5 by the President) at such facility.

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

7 of this subsection, the term ‘qualified redeveloper’

8 means a person who is not otherwise liable under

9 section 107 and did not cause or contribute to the

10 release or threat of release which necessitated the

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

12 SEC. 112. LIABILITY OF RESPONSE ACTION CONTRACTORS.

13 (a) EXTENSION OF NEGLIGENCE STANDARD.—Sub14 section (a) of section 119 of the Comprehensive Environ15 mental Response, Compensation, and Liability Act of

16 1980 is amended—

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

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

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

20 the law of any State or political subdivision of a

21 State’’; and

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

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

24 the generally accepted standards and practices in ef-
73

•HR 4161 SC

1 fect at the time and place that the conduct

2 occurred.’’.

3 (b) EXTENSION OF INDEMNIFICATION AUTHOR4 ITY.—Section 119(c) of such Act is amended by adding

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

6 agreement may apply to claims for negligence arising

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

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

9 such Act is amended in the text appearing after subpara10 graph (D)—

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

12 this Act,’’ and inserting in lieu thereof ‘‘List, any re13 moval under this Act, or any response action under

14 this Act at a facility using an alternative or innova15 tive technology,’’; and

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

17 ‘‘, or to undertake appropriate natural resource res18 toration actions necessary to protect and restore any

19 natural resources damaged by such release or threat20 ened release of a hazardous substance or pollutant

21 or contaminant’’.

22 (d) INDEMNIFICATION FOR THREATENED RE23 LEASES.—Section 119(c)(5) of such Act is amended in

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

25 after ‘‘release’’ both places it appears.
74

•HR 4161 SC

1 (e) CLARIFICATION OF LIABILITY.—Section 101 of

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

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

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

6 agreement with any Federal agency, any State (or

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

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

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

15 transported, hazardous substances or pollutants or

16 contaminants. This subparagraph shall not apply to

17 any person potentially responsible under section 106

18 or 107 other than those persons associated solely

19 with the provision of response action or any form of

20 ancillary services or equipment.’’.

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

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

24 ‘‘(g) LIMITATION ON ACTIONS AGAINST RESPONSE

25 ACTION CONTRACTORS.—No action to recover for any in-
75

•HR 4161 SC

1 jury to property, real or personal, or for bodily injury or

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

3 of the performance of services under a response action

4 contract, nor any action for contribution or indemnity for

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

6 brought against any response action contractor more than

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

8 such contract. The limitation prescribed in this subsection

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

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

12 TITLE II—STATE

13 IMPLEMENTATION

14 SEC. 201. STATE AUTHORITY.

15 (a) STATE AUTHORIZATION.—Title I of the Com16 prehensive Environmental Response, Compensation, and

17 Liability Act of 1980 (42 U.S.C. 9600 et seq.) is amended

18 by adding after section 126 the following new section:

19 ‘‘§ 127. State authority

20 ‘‘(a) STATE PROGRAM AUTHORIZATION.—

21 ‘‘(1) IN GENERAL.—At any time after the pro22 mulgation of regulations required by paragraph (2),

23 a State may apply to the Administrator to carry out,

24 under its own legal authorities, response actions and

25 enforcement activities at all facilities listed or pro-
76

•HR 4161 SC

1 posed for listing on the National Priorities List, or

2 certain categories of facilities listed or proposed for

3 listing on the National Priorities List, within the

4 State. If the Administrator determines that the

5 State meets the criteria for eligibility, the Adminis6 trator, pursuant to a contract or agreement entered

7 into between the Administrator and the State, shall

8 authorize the State to assume the responsibilities es9 tablished under this Act at all such facilities or cat10 egories of facilities. Except as otherwise provided in

11 this Act, such responsibilities include, but are not

12 limited to, responding to a release or threatened re13 lease of a hazardous substance or pollutant or con14 taminant; selecting response actions; expending the

15 Fund and the Retroactive Liability Fund in amounts

16 authorized by the Administrator to finance response

17 activities; and taking enforcement actions, including

18 cost recovery actions to recover Fund expenditures

19 made by the State. In an application for authoriza20 tion, a State shall acknowledge its responsibility to

21 address all response actions at the facilities for

22 which it seeks authorization.

23 ‘‘(2) PROMULGATION OF REGULATIONS.—Not

24 later than 1 year after the date of the enactment of

25 the Comprehensive Superfund Improvement Act, the
77

•HR 4161 SC

1 Administrator shall issue regulations to determine a

2 State’s eligibility for authorization and to establish

3 a process and criteria for withdrawal of such an au4 thorization. A State shall be considered eligible for

5 authorization if the Administrator determines that

6 the State possesses the legal authority, technical ca7 pability, and resources necessary to conduct re8 sponse actions and enforcement activities in a man9 ner that is substantially consistent with this Act and

10 the National Contingency Plan at the facilities listed

11 or proposed for listing on the National Priorities

12 List for which it seeks authorization.

13 ‘‘(b) AUTHORIZED USE OF FUNDS.—At facilities list14 ed on the National Priorities List for which a State is au15 thorized under subsection (a), and at facilities listed on

16 the National Priorities List which are referred to a State

17 under subsection (b), the State shall be eligible for re18 sponse action financing from the Fund and the Retro19 active Liability Fund. The Administrator shall ensure that

20 all allocations of the Fund and the Retroactive Liability

21 Fund to the States for the purpose of undertaking site22 specific response actions are based primarily on the rel23 ative risks to human health and the environment posed

24 by the facilities eligible for funding. The amount of Fund

25 and Retroactive Liability Fund financing for a State-se-
78

•HR 4161 SC

1 lected response action at a facility listed on the National

2 Priorities List shall—

3 ‘‘(1) take into account the number and financial

4 viability of parties identified as potentially liable for

5 response costs at such facility, and

6 ‘‘(2) be limited to the amount necessary to

7 achieve a level of response that is not more stringent

8 than that required under this Act.

9 A State also may obtain Fund financing to develop and

10 enhance its capacity to undertake response actions and en11 forcement activities. The Administrator, in consultation

12 with the States, shall establish, within 1 year after the

13 date of enactment of the Comprehensive Superfund Im14 provement Act, specific criteria for allocating expenditures

15 from the Fund and the Retroactive Liability Fund among

16 States for the purposes of undertaking response actions

17 and enforcement activities at referred and State-author18 ized facilities, and building State capacities to undertake

19 such response actions and enforcement activities.

20 ‘‘(c) STATE COST SHARE.—Notwithstanding section

21 104(c)(3)(C) of this Act, a State shall pay or assure pay22 ment of 10 percent of the costs of all response actions

23 (including response actions at facilities operated by the

24 State or a political subdivision of the State) for which the

25 State receives funds from the Fund under this section. A
79

•HR 4161 SC

1 State that receives funds from the Retroactive Liability

2 Fund under this section shall not be subject to any cost

3 share requirements for the receipt of those funds.

4 ‘‘(d) TERMS AND CONDITIONS; COST RECOVERY.—

5 A contract or agreement for a State authorization or refer6 ral under this section is subject to such terms and condi7 tions as the Administrator prescribes. The terms and con8 ditions shall include requirements for periodic auditing

9 and reporting of State expenditures from the Fund and

10 the Retroactive Liability Fund. The contract or agreement

11 may cover a specific facility, a category of facilities, or

12 all facilities listed or proposed to be listed on the National

13 Priorities List in the State. The contract or agreement

14 shall require the State to seek cost recovery, as con15 templated by this Act, of all expenditures from the Fund.

16 Ten percent of the moneys recovered by the State may

17 be retained by the State for use in its hazardous substance

18 response program, and the remainder shall be returned

19 to the Fund. Before making further allocations from the

20 Fund to any State, the Administrator shall take into con21 sideration the effectiveness of the State’s enforcement pro22 gram and cost recovery efforts.

23 ‘‘(e) ENFORCEMENT OF AGREEMENTS.—If the Ad24 ministrator enters into a contract or agreement with a

25 State pursuant to this section, and the State fails to com-
80

•HR 4161 SC

1 ply with any terms and conditions of the contract or agree2 ment, the Administrator, after providing 60 days notice,

3 may withdraw the State authorization or referral, or seek

4 in the appropriate Federal district court to enforce the

5 contract or agreement to recover any funds advanced or

6 any costs incurred because of the breach of the contract

7 or agreement by the State.

8 ‘‘(f) MORE STRINGENT STATE STANDARDS.—Under

9 either an authorization or referral, a State may select a

10 response action that achieves a level of cleanup that is

11 more stringent than required under section 121 of this

12 Act if the State agrees to pay for the incremental increase

13 in response cost attributable to achieving the more strin14 gent cleanup level. Neither the Fund, the Retroactive Li15 ability Fund, nor any party liable for response costs shall

16 incur costs in excess of those necessary to achieve a level

17 of cleanup required under section 121 of this Act.

18 ‘‘(g) OPPORTUNITY FOR PUBLIC COMMENT.—The

19 Administrator shall make available, for public review and

20 comment, applications for authorization under subsection

21 (a) and applications for referral under subsection (b). The

22 Administrator shall not approve or withdraw authorization

23 or referral from a State unless the Administrator notifies

24 the State, and makes public, in writing, the reasons for

25 such approval or withdrawal.
81

•HR 4161 SC

1 ‘‘(h) PERIODIC REVIEW OF AUTHORIZED STATE

2 PROGRAMS AND REFERRALS.—The Administrator shall

3 conduct a periodic review of authorized State programs

4 and referrals to determine, among other things, whether—

5 ‘‘(1) the response actions were selected and con6 ducted in a manner that was substantially consistent

7 with this Act, the National Contingency Plan, and

8 the contract or agreement between the Adminis9 trator and the State;

10 ‘‘(2) the State response costs financed by Fund

11 and Retroactive Liability Fund expenditures were in12 curred in the manner agreed to by the State, in ac13 cordance with the contract or agreement between the

14 Administrator and the State; and

15 ‘‘(3) the State’s cost recovery efforts and other

16 enforcement efforts were conducted in accordance

17 with the contract or agreement between the Admin18 istrator and the State.

19 Within 1 year after the date of enactment of the Com20 prehensive Superfund Improvement Act, the Adminis21 trator, in consultation with the States, shall develop spe22 cific criteria for periodic reviews of authorized State pro23 grams and referrals. The Administrator shall establish a

24 mechanism to make the periodic State reviews available

25 to the public.’’.
82

•HR 4161 SC

1 (b) TRANSITION AND CONFORMING AMENDMENTS.—

2 (1) Sections 104(c)(5), 104(c)(7), 104(d)(1),

3 and 104(d)(2) of the Comprehensive Environmental

4 Response, Compensation, and Liability Act of 1980

5 are each amended by inserting after the heading in

6 each paragraph the following—‘‘This paragraph ap7 plies only to response actions for which a Record of

8 Decision or other decision document is signed before

9 the date of enactment of the Comprehensive

10 Superfund Improvement Act.’’.

11 (2) Section 114(a) of such Act is amended by

12 striking ‘‘Nothing’’ and inserting—‘‘Except as other13 wise provided in this Act, nothing’’.

14 (3) Paragraph (1) of section 121(f) of such Act

15 is amended to read as follows: ‘‘(1) The President

16 may repeal, no earlier than one year after the pro17 mulgation of final regulations under sections

18 127(a)(3) and 127(b)(3), the regulations issued

19 under this paragraph prior to the date of enactment

20 of the Comprehensive Superfund Improvement

21 Act.’’.

22 (4) Paragraphs (2) and (3) of section 121(f) of

23 such Act are each amended in the second sentence

24 of subparagraph (A) by striking ‘‘does not attain a

25 legally applicable or relevant and appropriate stand-
83

•HR 4161 SC

1 ard, requirement, criteria, or limitation, under the

2 authority of subsection(d)(4)’’ and inserting in lieu

3 thereof ‘‘is not relevant and appropriate under

4 subsection(d),’’.

5 (5) Section 302(d) of such Act is amended by

6 striking ‘‘Nothing’’ and inserting—‘‘Except as other7 wise provided in this Act, nothing’’.

8 SEC. 202. TRANSFER OF AUTHORITIES.

9 Section 120(g) of the Comprehensive Environmental

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

11 U.S.C. 9620(g)) is amended by inserting after ‘‘the Envi12 ronmental Protection Agency,’’ the following: ‘‘and except

13 as provided in section 127,’’.

14 SEC. 203. EPA OVERSIGHT COSTS.

15 (a) OVERSIGHT COST ACCOUNTING AND APPEAL

16 PROCEDURE.—Section 104(a) of the Comprehensive Envi17 ronmental Response, Compensation, and Liability Act of

18 1980 (42 U.S.C. 9604(a)) is amended by adding at the

19 end the following new paragraph:

20 ‘‘(5) OVERSIGHT COST ACCOUNTING AND APPEAL

21 PROCEDURE.—(A) The President shall maintain detailed

22 and timely records of the costs incurred under, or in con23 nection with, any oversight contract or arrangement re24 ferred to in paragraph (1). The President shall submit

25 such records to the responsible party that has agreed to
84

•HR 4161 SC

1 reimburse the Fund for such costs with each demand or

2 bill for such costs.

3 ‘‘(B) The President shall establish an administrative

4 procedure under which a party that conducts any response

5 action may contest the amount of costs incurred by the

6 President in overseeing the conduct of that response ac7 tion. The procedure shall be carried out separately from

8 the conduct of the response action at the facility con9 cerned.’’.

10 (b) LIMITATION ON OVERSIGHT COSTS.—Any costs

11 of oversight incurred by the President that exceed 50 per12 cent of the response costs incurred by the responsible

13 party or parties at the facility concerned shall be paid by

14 the Fund, unless the responsible party or parties have pre15 viously agreed to pay a larger sum under a court decree

16 or the response action is being conducted under an order

17 issued under section 106 of the Comprehensive Environ18 mental Response, Compensation, and Liability Act of

19 1980.

20 TITLE III—REMEDY SELECTION

21 SEC. 301. IMMEDIATE RISK REDUCTION MEASURES.

22 (a) IMMEDIATE RISK REDUCTION MEASURES.—Sec23 tion 104(a) of the Comprehensive Environmental Re24 sponse, Compensation, and Liability Act of 1980 is

25 amended—
85

•HR 4161 SC

1 (1) by redesignating paragraphs (1), (2), (3),

2 and (4) as paragraphs (2), (3), (4), and (5), respec3 tively;

4 (2) in paragraph (5) (as redesignated), by strik5 ing out ‘‘paragraph (3)’’ and inserting in lieu thereof

6 ‘‘paragraph (4)’’; and

7 (3) by inserting after ‘‘(a)’’ the following new

8 paragraph (1): ‘‘(1) IMMEDIATE RISK REDUCTION

9 MEASURES.—

10 ‘‘(A) AUTHORITY TO ACT.—Whenever any haz11 ardous substance, pollutant, or contaminant is re12 leased or there is a substantial threat of such a re13 lease into the environment, and such release may

14 present an imminent and substantial danger to the

15 public health, the President, or the State in the case

16 of a facility for which a State has responsibility

17 under section 127, is authorized to act to minimize

18 and prevent to the extent possible the endangerment

19 to the public health.

20 ‘‘(B) TYPES OF MEASURES ALLOWED.—The ac21 tions that the President or a State may take under

22 this paragraph (hereinafter in this section referred

23 to as ‘immediate risk reduction measures’) may in24 clude but are not limited to the following:
86

•HR 4161 SC

1 ‘‘(i) The removal of waste from barrels,

2 tanks, or lagoons.

3 ‘‘(ii) The provision of alternative water

4 supplies or point-of-use treatment.

5 ‘‘(iii) The prevention of discharges to sur6 face waters or ground waters.

7 ‘‘(iv) The installation of fencing.

8 ‘‘(v) The institution of other institutional

9 controls.

10 ‘‘(C) MEASURES PROHIBITED.—The authority

11 provided by this paragraph does not include author12 ity for the President or a State to institute long13 term remediation measures.

14 ‘‘(D) TIMING.—The President or a State shall

15 commence immediate risk reduction measures under

16 this paragraph—

17 ‘‘(i) in the case of a facility that is not list18 ed on the National Priorities List, as soon as

19 practicable after the President or the State be20 comes aware of an endangerment to the public

21 health; and

22 ‘‘(ii) in the case of a facility that is listed

23 on the National Priorities List, not later than

24 60 days after the facility is so listed.
87

•HR 4161 SC

1 ‘‘(E) COST EFFECTIVENESS.—Any immediate

2 risk reduction measure carried out under this para3 graph shall be conducted in the most cost-effective

4 manner practicable.

5 ‘‘(F) FUNDING.—The Fund may be used to pay

6 for immediate risk reduction measures taken under

7 this paragraph. The President may (in accordance

8 with Title V) recover the costs of such measures

9 from any person determined to be liable for such

10 costs but, in the case of measures costing less than

11 $1,000,000, the President may choose not to recover

12 such costs.

13 ‘‘(G) JUDICIAL REVIEW.—The decision of the

14 President or a State to act under this subsection is

15 subject to review as provided in chapter 7 of title 5,

16 United States Code, except that a reviewing court

17 may set aside an action only if it is found to be arbi18 trary, capricious, an abuse of discretion, or other19 wise not in accordance with law. Review may be had

20 only in the United States district court for the dis21 trict in which the facility or site is located.’’.

22 (b) EFFECTIVE DATE.—The amendment made by

23 subsection (a) shall take effect on the date of the enact24 ment of this Act.
88

•HR 4161 SC

1 SEC. 302. SITE SCORING.

2 Section 105(c)(1) of the Comprehensive Environ3 mental Response, Compensation, and Liability Act of

4 1980 (42 U.S.C. 9605(c)(1)) is amended—

5 (1) by inserting ‘‘(A)’’ after ‘‘REVISION.—’’;

6 and

7 (2) by adding at the end: the following new sub8 paragraph:

9 ‘‘(B)(i) After the date of enactment of the Com10 prehensive Superfund Improvement Act, the hazard

11 ranking system shall be applied to a site or facility

12 only after the site or facility has undergone imme13 diate risk reduction measures pursuant to section

14 104(a)(1). In applying such ranking system, condi15 tions existing at the site or facility before the imme16 diate risk reduction measures were taken shall not

17 be taken into account.

18 ‘‘(ii) Clause (i) shall apply to all sites and facili19 ties to be newly listed on the National Priorities List

20 after such date of enactment and to any sites al21 ready so listed as of such date of enactment but for

22 which a remedial investigation and feasibility study

23 has not been conducted as of such date.

24 ‘‘(iii) As soon as practicable after such date of

25 enactment, the President shall revise the hazard
89

•HR 4161 SC

1 ranking system regulations to reflect the require2 ments this subparagraph. ’’.

3 SEC. 303. LONG-TERM RESPONSE PLAN.

4 (a) IN GENERAL.—Section 104(a) of the Comprehen5 sive Environmental Response, Compensation, and Liabil6 ity Act of 1980, as amended by section 301, is further

7 amended by adding at the end the following new para8 graph:

9 ‘‘(6) LONG-TERM RESPONSE PLAN.—

10 ‘‘(A) IN GENERAL.—Before carrying out or al11 lowing another person to carry out a response action

12 at a facility under this subsection, the President, or

13 the State in the case of a facility for which a State

14 has responsibility under section 127, shall prepare a

15 long-term response plan (hereinafter in this section

16 referred to as an ‘LTRP’ or ‘plan’) for such facility.

17 The President or State may allow a potentially re18 sponsible party to prepare such a plan and to carry

19 out the elements of the plan listed in clauses (i), (ii),

20 and (iv) of subparagraph (B).

21 ‘‘(B) ELEMENTS OF LTRP.—The LTRP shall

22 address the following elements:

23 ‘‘(i) SITE CHARACTERIZATION.—The site

24 characterization element of the plan shall deter25 mine the type, nature, and extent of contamina-
90

•HR 4161 SC

1 tion at the facility, including the location of the

2 sources of the release or threatened release.

3 The site characterization component shall be

4 completed within 12 months after a facility is

5 listed on the National Priorities List.

6 ‘‘(ii) RISK ASSESSMENT.—The risk assess7 ment element of the plan shall be carried out in

8 accordance with paragraph (7). The risk assess9 ment component shall be performed simulta10 neously with the site characterization compo11 nent and shall be completed within 12 months

12 after a facility is listed on the National Prior13 ities List.

14 ‘‘(iii) COMMUNITY ADVISORY COUNCILS.—

15 The plan shall take into account any rec16 ommendations made by the community advisory

17 council for the facility created under section

18 117(f). The council shall provide its rec19 ommendations with respect to the facility within

20 12 months after a facility is listed on the Na21 tional Priorities List.

22 ‘‘(iv) RESPONSE OPTION IDENTIFICA23 TION.—The response option identification ele24 ment of the plan shall be carried out in accord25 ance with paragraph (8) during the 3-month
91

•HR 4161 SC

1 period beginning on the date on which the ele2 ments listed in clauses (i) through (iii) are com3 pleted.

4 ‘‘(C) APPLICABILITY.—(i) A long-term response

5 plan shall be required for the following:

6 ‘‘(I) A facility to be newly listed on the

7 National Priorities List after the date of enact8 ment of the Comprehensive Superfund Improve9 ment Act.

10 ‘‘(II) A facility or site listed on the Na11 tional Priorities List as of such date of enact12 ment but for which a remedial investigation and

13 feasibility study has not been conducted as of

14 such date.

15 ‘‘(III) A facility or site listed on the Na16 tional Priorities List as of such date of enact17 ment, for which a remedial investigation and

18 feasibility study has been conducted as of such

19 date, but for which a contract has not been exe20 cuted for remedial design and remedial action

21 as of such date, if the potentially responsible

22 parties and the State in which the facility or

23 site is located agree, within 30 days after such

24 date, to subject themselves to the requirements

25 of an LTRP.
92

•HR 4161 SC

1 ‘‘(ii) A long-term response plan shall not be re2 quired for any facility or site with respect to which

3 a contract has been executed for remedial design

4 and remedial action as of such date of enactment. ’’.

5 (b) RISK ASSESSMENTS.—(1) Section 104(a) of the

6 Comprehensive Environmental Response, Compensation,

7 and Liability Act of 1980 (42 U.S.C. 9604(a)), as amend8 ed by section 301 and this section, is further amended

9 by adding at the end the following new paragraph:

10 ‘‘(7) RISK ASSESSMENTS.—

11 ‘‘(A) IN GENERAL.—In carrying out a remedial

12 investigation with respect to a facility, the President

13 or other person carrying out the investigation shall

14 assess the risk to human health and the environment

15 presented by the release or threat of release of a

16 hazardous substance, pollutant, or contaminant. The

17 risk assessment component of the remedial investiga18 tion shall be carried out in compliance with regula19 tions promulgated by the President. The President

20 shall ensure that the regulations do not conflict with

21 regional or State guidance on risk assessments. At

22 a minimum, the regulations shall—

23 ‘‘(i) require risk assessments to use expo24 sure factors that accurately describe site or fa25 cility conditions; and
93

•HR 4161 SC

1 ‘‘(ii) require that values used to describe

2 quantities of a substance consumed by people

3 accurately reflect average conditions.

4 ‘‘(B) CURRENT RISK VERSUS FUTURE RISK.—

5 In carrying out the risk assessment component of

6 the remedial investigation, the President or other

7 person carrying out the assessment shall separately

8 evaluate (i) the current risks, and (ii) the likely fu9 ture risks, to human health and the environment,

10 based on current and likely future land use of the

11 site. If the President determines that one or more

12 such risks exist and warrant remedial action, the

13 President shall specify in the record of decision

14 which risks support the decision for remedial action,

15 which risks are current risks, and which risks are

16 likely future risks.

17 ‘‘(C) BEST ESTIMATES VERSUS WORST CASE.—

18 In carrying out the risk assessment component of

19 the remedial investigation, the President or other

20 person carrying out the assessment shall rely to the

21 maximum extent practicable on actual data rather

22 than on assumptions. The President or other person

23 shall provide the most plausible estimate of any risk

24 to human health and the environment. The Presi25 dent or other person also shall describe any assump-
94

•HR 4161 SC

1 tions or uncertainties that pertain to such estimate,

2 including the likelihood of human exposure actually

3 occurring. Whenever the President or other person

4 considers it feasible, the President shall provide a

5 quantitative estimate of the uncertainty associated

6 with the most plausible estimate of the risk.’’.

7 (2) PERFORMANCE OF RISK ASSESSMENTS BY

8 PRPS.—Section 104(a)(1) of such Act is amended in the

9 second sentence—

10 (A) by striking out ‘‘may’’ and inserting in lieu

11 thereof ‘‘shall’’; and

12 (b) by inserting after ‘‘remedial investigation’’

13 the following: ‘‘(including the risk assessment com14 ponent of the remedial investigation)’’.

15 (c) COMMUNITY ADVISORY COUNCILS.—Section 117

16 of the Comprehensive Environmental Response, Com17 pensation, and Liability Act of 1980 (42 U.S.C. 9607) is

18 amended by adding at the end the following:

19 ‘‘(f) COMMUNITY ADVISORY COUNCILS.—

20 ‘‘(1) CREATION.—The Administrator shall cre21 ate a Community Advisory Council for each facility

22 listed on the National Priorities List. Such Council

23 shall be comprised of not more than 20 persons ap24 pointed by the Governor of the State in which the

25 facility is located from among persons in the com-
95

•HR 4161 SC

1 munity in which the facility is located. Each such

2 council shall represent a wide variety of local -inter3 ests.

4 ‘‘(2) PURPOSE.—The Community Advisory

5 Councils shall provide information to potentially re6 sponsible parties, the Administrator, and the State

7 with regard to the future use of the facility and af8 fected off-site areas and resources. The councils

9 shall provide a public forum for citizens to voice con10 cerns regarding the response action to be taken and

11 the future use of the site.

12 ‘‘(3) RECOMMENDATIONS.—The President and

13 the State shall take into consideration any rec14 ommendations made by a Community Advisory

15 Council in making decisions regarding any response

16 action under this title at the facility for which such

17 council was established.

18 ‘‘(4) TECHNICAL AND ADMINISTRATIVE SUP19 PORT FOR COMMUNITY ADVISORY COUNCILS.—The

20 Administrator’s regional offices shall provide admin21 istrative and technical services for Community Advi22 sory Councils, including technical assistance in un23 derstanding this title and the regulations under this

24 title.’’.
96

•HR 4161 SC

1 (d) RESPONSE OPTION IDENTIFICATION.—(1) Sec2 tion 104(a) of the Comprehensive Environmental Re3 sponse, Compensation, and Liability Act of 1980 (42

4 U.S.C. 9604(a)), as amended by section 301 and this sec5 tion, is further amended by adding at the end the following

6 new paragraph:

7 ‘‘(8) RESPONSE OPTION IDENTIFICATION.—(A) The

8 response option identification element of a long-term re9 mediation plan shall consist of the development of the

10 range of possible response actions for a facility and the

11 conduct of a cost-benefit analysis on each of the following

12 categories of possible response actions:

13 ‘‘(i) Containment (both permanent and tem14 porary).

15 ‘‘(ii) Remediation.

16 ‘‘(iii) Monitoring.

17 ‘‘(iv) Delisting.

18 ‘‘(v) Institutional controls.

19 ‘‘(B) The President, the State, or the other person

20 carrying out the identification shall take into account ad21 vice from the Community Advisory Council created for the

22 facility concerned.

23 ‘‘(C) During the 30-day period occurring after com24 pletion of the response option identification, the Commu25 nity Advisory Council, potentially responsible parties, and
97

•HR 4161 SC

1 any other interested parties may submit comments to the

2 President or the State on preferred options.’’.

3 (2) COST-BENEFIT REGULATIONS.—Section 105 of

4 the Comprehensive Environmental Response, Compensa5 tion, and Liability Act of 1980 (42 U.S.C. 9605) is

6 amended by adding at the end the following new sub7 section:

8 ‘‘(h) COST-BENEFIT REGULATIONS.—(1) The Presi9 dent shall promulgate and include in the national contin10 gency plan guidelines for conducting cost/benefit analyses

11 of response actions conducted pursuant to this Act. The

12 guidelines shall include a standard methodology for evalu13 ating benefits and costs over the lifetime of a remedial

14 action.

15 ‘‘(2) In developing the standard methodology under

16 paragraph (1), the President shall seek and take into ac17 count suggestions from States and political subdivisions

18 of States for which costs and benefits to include in a cost19 benefit analysis, and which methods to use in evaluating

20 the costs and benefits. The costs may include costs related

21 to public welfare.

22 ‘‘(3) In developing the methodology for measuring the

23 costs of a remedial action, the President, at a minimum,

24 shall take into account the following costs:
98

•HR 4161 SC

1 ‘‘(A) Costs associated with the remedial action,

2 including the following:

3 ‘‘(i) Direct capital costs.

4 ‘‘(ii) Operation and maintenance costs.

5 ‘‘(iii) Preconstruction costs, including per6 mitting, siting, and regulatory compliance costs.

7 ‘‘(iv) Capital acquisition, amortization, and

8 debt service costs.

9 ‘‘(v) Consulting costs.

10 ‘‘(vi) Costs and potential liabilities of fu11 ture environmental remediation if the remedial

12 action does not provide for a permanent rem13 edy.

14 ‘‘(vii) Land acquisition costs.

15 ‘‘(viii) Costs of insurance.

16 ‘‘(B) Avoided or additional costs of cleaning up

17 the contamination using an alternative treatment

18 technology.

19 ‘‘(4) In developing the methodology for measuring the

20 benefits of a remedial action, the President shall, at a min21 imum, take into account the costs of benefits associated

22 with the remedial action, including the following:

23 ‘‘(A) Increased property values.

24 ‘‘(B) Reduced public health risks.

25 ‘‘(C) Reduced ecological risks.
99

•HR 4161 SC

1 ‘‘(D) Improved environmental quality in the

2 community.’’.

3 SEC. 304. LONG-TERM RESPONSE SELECTION.

4 (a) LONG-TERM RESPONSE SELECTION.—Section

5 121(a) of the Comprehensive Environmental Response,

6 Compensation, and Liability Act of 1980 (42 U.S.C.

7 9621(a)) is amended to read as follows:

8 ‘‘(a) RESPONSE SELECTION.—

9 ‘‘(1) SECTION 104.—After completion of the

10 long-term response plan for a facility under section

11 104, the President, or the State in the case of a fa12 cility for which a State has responsibility under sec13 tion 127, shall select that response or combination

14 of responses (from among the options identified in

15 the plan) that best achieves an acceptable level of re16 sidual risk reduction at the facility or site (referred

17 to as the ‘cleanup goal’), in accordance with the gen18 eral rules stated in subsection (b).

19 ‘‘(2) SECTION 106.—With respect to actions de20 termined to be necessary by the President to be se21 cured under section 106, the President shall select

22 appropriate remedial actions that are in accordance

23 with this section and, to the extent practicable, the

24 national contingency plan, and which provide for

25 cost-effective response.
100

•HR 4161 SC

1 (b) GENERAL RULES FOR RESPONSE SELECTION.—

2 Section 121(b) of such Act is amended to read as follows:

3 ‘‘(b) GENERAL RULES.—

4 ‘‘(1) SELECTION PROCESS.—In selecting a re5 sponse action under this section, the President (or

6 State, as the case may be) shall review the long-term

7 response plan for the facility or site and consider

8 any recommendations submitted to it from the Com9 munity Advisory Council, the potentially responsible

10 parties, and the general public.

11 ‘‘(2) FACTORS TO BE CONSIDERED.—In select12 ing a response action, the President shall take into

13 account the following:

14 ‘‘(A) Site-specific factors, including the

15 current and likely future uses of the land and

16 the ground water (including any designated

17 uses or institutional controls), the potential for

18 human exposure to contamination, the actual

19 risk to human health, and the degree and type

20 of contamination.

21 ‘‘(B) The economic impact of the action on

22 the potentially responsible parties. In the case

23 of a potentially responsible party which is a mu24 nicipality or other subdivision of a State (in25 cluding municipalities that are owners or opera-
101

•HR 4161 SC

1 tors of landfills), the President shall take into

2 account the funding priorities of the commu3 nity.

4 ‘‘(C) The costs and benefits of the re5 sponse options, as determined by cost-benefit

6 analysis under section 104(a)(8).

7 ‘‘(3) TYPES OF RESPONSES THAT MAY BE SE8 LECTED.—The types of response actions that the

9 President (or State, as the case may be) may select

10 include the following:

11 ‘‘(A) Monitoring.

12 ‘‘(B) Containment or stabilization, if the

13 President or State finds that any of the follow14 ing conditions exist with respect to the facility

15 concerned:

16 ‘‘(i) The risks to human health or the

17 environment are low.

18 ‘‘(ii) The costs of other types of reme19 diation, including treatment, are extremely

20 high.

21 ‘‘(iii) No proven technology exists for

22 achieving a permanent and significant de23 crease in the toxicity, mobility, or volume

24 of the hazardous substance, pollutant, or

25 contaminant concerned that is propor-
102

•HR 4161 SC

1 tionate to the risk to human health or the

2 environment.

3 ‘‘(C) Institutional controls as part of a

4 permanent remedy. The President shall give

5 preference to using such controls at facilities

6 with low future risk (as determined in the risk

7 assessment component of a Long Term Re8 sponse Plan). Such controls include zoning ordi9 nances and other ordinances that restrict access

10 to or use of property (including groundwater

11 management zones), physical barriers that re12 strict access to property (such as fences), and

13 such other controls as the President (or State)

14 considers appropriate.

15 ‘‘(4) PREFERENCE FOR CERTAIN TYPE OF AC16 TION.—In selecting a response action, the President

17 (or State) shall, with reference to the factors set

18 forth in section 121(b)(2) prefer response actions

19 that significantly reduce the volume, toxicity, or mo20 bility of the hazardous substances, pollutants, and

21 contaminants, or that significantly reduce actual or

22 threatened exposure to such hazardous substances,

23 pollutants, or contaminants.

24 ‘‘(5) LIMITATION ON STANDARDIZED REM25 EDIES.—The President (or State) shall not select a
103

•HR 4161 SC

1 response action that is a standardized remedy in any

2 case in which the use of an alternative technology

3 would be less expensive but as protective of health

4 and the environment as the standardized remedy.

5 For purposes of this paragraph, the term ‘standard6 ized remedy’ means a remedy that is determined by

7 the President to be protective of human health and

8 the environment for a category of facilities.

9 ‘‘(6) COMPLIANCE BOUNDARIES.— The Presi10 dent (or State), in determining the boundaries with11 in which a response action is to be achieved, shall

12 extend site or facility boundaries to include areas

13 subject to easements or other institutional controls,

14 such as zones of groundwater management.

15 ‘‘(7) JUDICIAL REVIEW.—The selection of a re16 sponse action by the President or a State under this

17 subsection is subject to review as provided in chapter

18 7 of title 5, United States Code, except that a re19 viewing court may set aside an action only if it is

20 found to be arbitrary, capricious, an abuse of discre21 tion, or otherwise not in accordance with law. Re22 view may be had only in the United States district

23 court for the district in which the facility or site is

24 located. In any such review, the facts of the case are

25 subject to a trial de novo by the reviewing court.
104

•HR 4161 SC

1 Any appeal of the selection of a response action shall

2 be filed within 60 days after the selection is made.

3 ‘‘(8) DEADLINE FOR IMPLEMENTATION TO

4 BEGIN.—The implementation of a response action

5 selected pursuant to this section shall begin no later

6 than 60 days after the selection has been made

7 and—

8 ‘‘(i) an appeal of such selection has been

9 filed and a court has finally acted upon such

10 appeal; or

11 ‘‘(ii) the time for filing an appeal of such

12 selection has expired and no appeal has been

13 filed.’’.

14 (c) REPEAL OF ARARS CLEANUP STANDARDS.—

15 Section 121(d) of the Comprehensive Environmental Re16 sponse, Compensation, and Liability Act of 1980 (42

17 U.S.C. 9621(d)) is amended—

18 (1) by striking out paragraphs (2), (3), and (4);

19 and

20 (2) by striking out ‘‘(1)’’.

21 (d) APPLICABILITY.—The amendments made by this

22 section shall apply with respect to any facility or site with

23 respect to which—
105

•HR 4161 SC

1 (1) no contract for remedial design and reme2 dial action has been executed as of the date of the

3 enactment of this Act; and

4 (2) the pertinent parties have not opted to sub5 ject themselves to the long-term response plan and

6 related requirements within 30 days after such date

7 of enactment (as described in section 104(a)(6)(C)).

8 (e) CROSS REFERENCE AMENDMENT.—Section

9 104(c)(4) of such Act is amended to read as follows:

10 ‘‘(4) SELECTION OF RESPONSE.—The President

11 shall select response actions to carry out this section in

12 accordance with section 121 of this Act.’’.

13 SEC. 305. PERIODIC REVIEW.

14 Section 121(c) of the Comprehensive Environmental

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

16 U.S.C. 9621(c)) is amended by striking out the first two

17 sentences and inserting in lieu thereof the following: ‘‘The

18 President, or the State in the case of a facility for which

19 a State has responsibility under section 127, shall review

20 each response action selected under this section not less

21 often than once every 5 years after the initiation of the

22 action to assure that human health and the environment

23 are being protected by the action being implemented. If

24 upon such review it is the judgment of the President or

25 State that additional actions are appropriate at such site
106

•HR 4161 SC

1 in accordance with section 104, the President or State

2 shall take or require such action, including a supplemental

3 long-term response plan under section 104. In the case

4 of a review carried out by the President, if it is the judg5 ment of the President that additional actions are appro6 priate at such site in accordance with section 106, the

7 President or State shall take or require such action.’’.

8 SEC. 306. DELISTING OF FACILITIES AND SITES.

9 Section 105 of the Comprehensive Environmental Re10 sponse, Compensation, and Liability Act of 1980 (42

11 U.S.C. 9605) is amended by adding at the end the follow12 ing new subsection:

13 ‘‘(h) DELISTING OF FACILITIES AND SITES.—After

14 a response action selected for a site or facility achieves

15 the cleanup goal set for such facility under section 121(a),

16 the President shall delist the site or facility from the Na17 tional Priorities List. Such delisting may occur even if

18 monitoring or operation and maintenance are being con19 ducted at the facility.’’.

20 TITLE IV—FUNDING

21 SEC. 401. 5-YEAR EXTENSION OF HAZARDOUS SUBSTANCE

22 SUPERFUND.

23 (a) EXTENSION OF TAXES.—

24 (1) The following provisions of the Internal

25 Revenue Code of 1986 are each amended by striking
107

•HR 4161 SC

1 ‘‘January 1, 1996’’ each place it appears and insert2 ing ‘‘January 1, 2001’’:

3 (A) Section 59A(e)(1) (relating to applica4 tion of environmental tax).

5 (B) Paragraphs (1) and (3) of section

6 4611(e) (relating to application of Hazardous

7 Substance Superfund financing rate).

8 (2) Paragraph (2) of section 4611(e) of such

9 Code is amended—

10 (A) by striking ‘‘1993’’ and inserting

11 ‘‘1998’’,

12 (B) by striking ‘‘1994’’ each place it ap13 pears and inserting ‘‘1999’’, and

14 (C) by striking ‘‘1995’’ each place it ap15 pears and inserting ‘‘2000’’.

16 (b) INCREASE IN AGGREGATE TAX WHICH MAY BE

17 COLLECTED.—Paragraph (3) of section 4611(e) of such

18 Code is amended by striking ‘‘$11,970,000,000’’ each

19 place it appears and inserting ‘‘$26, 970,000,000’’ and by

20 striking ‘‘December 31, 1995’’ and inserting ‘‘December

21 31, 2000’’.

22 (c) EXTENSION OF REPAYMENT DEADLINE FOR

23 SUPERFUND BORROWING.—Subparagraph (B) of section

24 9507(d)(3) is amended by striking ‘‘December 31, 1995’’

25 and inserting ‘‘December 31, 2000’’.
108

•HR 4161 SC

1 (d) EXTENSION OF AUTHORIZATION OF APPROPRIA2 TIONS TO TRUST FUND.—Subsection (b) of section 517

3 of the Superfund Revenue Act of 1986 (26 U.S.C. 9507

4 note) is amended by striking ‘‘and’’ at the end of para5 graph (8), by striking the period at the end of paragraph

6 (9) and inserting ‘‘, and’’, and by adding at the end there7 of the following new paragraphs:

8 ‘‘(10) 1996, $250,000,000,

9 ‘‘(11) 1997, $250,000,000,

10 ‘‘(12) 1998, $250,000,000,

11 ‘‘(12) 1999, $250,000,000, and

12 ‘‘(13) 2000, $250,000,000,’’.

13 SEC. 402. INCREASE IN ENVIRONMENTAL INCOME TAX.

14 (a) IN GENERAL.—Subsection (a) of section 59A of

15 the Internal Revenue Code of 1986 (relating to environ16 mental tax) is amended by inserting ‘‘(0.24 percent in the

17 case of taxable years beginning after December 31, 1994,

18 and before January 1, 2000)’’.

19 (b) INCREASED REVENUES NOT DEPOSITED IN

20 SUPERFUND.—Subsection (b) of section 9507 of such

21 Code (relating to Hazardous Substance Superfund) is

22 amended by adding at the end the following new sentence:

23 ‘‘Only 50 percent of the taxes received in the Treasury

24 under section 59A with respect to taxable years beginning
109

•HR 4161 SC

1 after December 31, 1994, and before January 1, 2000,

2 shall be taken into account under paragraph (1).’’

3 (c) EFFECTIVE DATE.—The amendment made by

4 subsection (a) shall apply to taxable years beginning after

5 December 31, 1994.

6 SEC. 403. ENVIRONMENTAL FEES AND ASSESSMENTS ON IN7 SURANCE COMPANIES.

8 (a) IN GENERAL.—The Internal Revenue Code of

9 1986 is amended by inserting after section ll the fol10 lowing new section:

11 ‘‘§ . Environmental fees and assessments on insur12 ance companies’’.

13 [RESERVED]

14 (b) CLERICAL AMENDMENTS.—The table of sections

15 for chapter ll of the Internal Revenue Code of 1986

16 is amended by inserting after the item relating to section

17 ll the following:

18 ‘‘§ . Environmental fees and assessments on insur19 ance companies’’.

20 SEC. 404. RETROACTIVE LIABILITY FUND.

21 (a) IN GENERAL.—Subchapter A of chapter 98 of the

22 Internal Revenue Code of 1986 (relating to trust fund

23 code) is amended by adding at the end thereof the follow24 ing new section:
110

•HR 4161 SC

1 ‘‘SEC. 9512. RETROACTIVE LIABILITY FUND.

2 ‘‘(a) CREATION OF TRUST FUND.—There is estab3 lished in the Treasury of the United States a trust fund

4 to be known as the ‘Retroactive Liability Fund’, consisting

5 of such amounts as may be appropriated or credited to

6 such Fund as provided in this section or section 9602(b).

7 ‘‘(b) TRANSFERS TO FUND.—There are hereby ap8 propriated to the Retroactive Liability Fund—

9 ‘‘(1) amounts equivalent to 50 percent of the

10 revenues received in the Treasury from the tax im11 posed by section 59A (relating to environmental tax)

12 for taxable years beginning after December 31,

13 1994, and before January 1, 2000; and

14 ‘‘(2) amounts received from fees and assess15 ments imposed by the amendments made by section

16 403 of this Act.

17 ‘‘(c) EXPENDITURES FROM FUND.—Amounts in the

18 Retroactive Liability Fund shall be available, as provided

19 in appropriation Acts, only for purposes of making ex20 penditures to carry out section 107(n) of the Comprehen21 sive Environmental Response, Compensation, and Liabil22 ity Act of 1980.’’

23 (b) CLERICAL AMENDMENT.—The table of sections

24 for such subchapter A is amended by adding at the end

25 thereof the following new item:

‘‘Sec. 9512. Retroactive Liability Fund.’’
111

•HR 4161 SC

Æ

HR 4161 SC——2

HR 4161 SC——3

HR 4161 SC——4

HR 4161 SC——5

HR 4161 SC——6

HR 4161 SC——7

HR 4161 SC——8