II

103D CONGRESS

2D SESSION S. 1834

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 7 (legislative day, JANUARY 25), 1994

Mr. BAUCUS (by request) (for himself and Mr. LAUTENBERG) introduced the

following bill; which was read twice and ordered referred to the Committee on Environment and Public Works for consideration only of matters

within that Committee’s jurisdiction, provided that if and when reported

from the Committee, the bill then be referred to the Committee on Finance for consideration only of matters within that Committee’s jurisdiction for a period not to exceed thirty session days

A BILL

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

purposes.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Superfund Reform Act of 1994’’.

6 (b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.
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TITLE I—COMMUNITY PARTICIPATION AND HUMAN HEALTH

Sec. 101. Purposes and objectives.

Sec. 102. Early, direct and meaningful community participation.

Sec. 103. Community working groups.

Sec. 104. Citizen information and access offices.

Sec. 105. Response to comments.

Sec. 106. Multiple sources of risk demonstration projects.

Sec. 107. Assessing risks from multiple sources.

Sec. 108. Multiple sources of risk in priority setting.

Sec. 109. Disease registry and medical care providers.

Sec. 110. Substance profiles.

Sec. 111. Determining health effects.

Sec. 112. Public health and related health activities at National Priorities List

sites.

Sec. 113. Health studies.

Sec. 114. Distribution of materials to health professionals and medical centers.

Sec. 115. Grant awards/contracts/community assistance activities.

Sec. 116. Public health recommendations in remedial actions.

Sec. 117. Agency for Toxic Substances and Disease Registry notification.

TITLE II—STATE ROLES

Sec. 201. State authority.

Sec. 202. Transfer of authorities.

Sec. 203. State role in determination of remedial action taken.

Sec. 204. State assurances.

Sec. 205. Siting.

Sec. 206. The National Priorities List.

Sec. 207. The State Registry.

TITLE III—VOLUNTARY RESPONSE

Sec. 301. Purposes and objectives.

Sec. 302. State voluntary response program.

Sec. 303. Site characterization program.

TITLE IV—LIABILITY AND ALLOCATION

Sec. 401. Response authorities.

Sec. 402. Compliance with administrative orders.

Sec. 403. Limitations to liability for response costs.

Sec. 404. Liability.

Sec. 405. Civil proceedings.

Sec. 406. Limitations on contribution actions.

Sec. 407. Scope of rulemaking authority.

Sec. 408. Enhancement of settlement authorities.

Sec. 409. Allocation procedures.

TITLE V—REMEDY SELECTION

Sec. 501. Purposes and objectives.

Sec. 502. Cleanup standards and levels.

Sec. 503. Remedy selection.

Sec. 504. Miscellaneous amendments to section 121.

Sec. 505. Response authorities.

Sec. 506. Removal actions.
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Sec. 507. Transition.

TITLE VI—MISCELLANEOUS

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

facilities.

Sec. 602. Transfers of uncontaminated property.

Sec. 603. Agreements to transfer by deed.

Sec. 604. Alternative or innovative treatment technologies.

Sec. 605. Definitions.

Sec. 606. Conforming amendment.

TITLE VII—FUNDING

Sec. 701. Authorizations of appropriations.

Sec. 702. Orphan share funding.

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

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

Sec. 705. Authorization of appropriations from general revenues.

Sec. 706. Additional limitations.

TITLE VIII—INSURANCE

Sec. 801. Short title.

Sec. 802. Environmental Insurance Resolution Fund.

Sec. 803. Financial statements, audits, investigations, and inspections.

Sec. 804. Stay of pending litigation.

Sec. 805. Sunset provisions.

Sec. 806. Sovereign immunity of the United States.

Sec. 807. Effective date.

TITLE IX—TAX

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

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

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

Sec. 904. Resolution Fund not subject to tax.

1 TITLE I—COMMUNITY PARTICIPATION

2 AND HUMAN HEALTH

3 SEC. 101. PURPOSES AND ACTIVITIES.

4 The purposes and objectives of the community par5 ticipation activities required by this title are to—

6 (a) inform citizens and elected officials at all

7 levels of government of the existence and status of

8 facilities listed on the National Priority List and
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1 contaminated sites identified on State Registries (as

2 established by section 207 of this Act);

3 (b) provide citizens with information regarding

4 the Superfund identification and cleanup process

5 and maintain lists of technical, health and other rel6 evant experts licensed or located in the state who are

7 available to assist the community;

8 (c) ensure wide dissemination of and access to

9 information in a manner that is easily understood by

10 the community, considering any unique cultural

11 needs of the community, including presentation of

12 information orally and distribution of information in

13 languages other than English; and

14 (d) ensure that the President is aware of and

15 considers the views of affected communities.

16 SEC. 102. EARLY, DIRECT AND MEANINGFUL COMMUNITY

17 PARTICIPATION.

18 (a) Section 117(e)(1) of the Comprehensive Environ19 mental Response, Compensation, and Liability Act of

20 1980, referred to in this Act as ‘‘the Act’’ (42 U.S.C.

21 9617) is amended by amending the first sentence to read

22 as follows:

23 ‘‘(1) AUTHORITY.—Subject to such amounts as

24 are provided in appropriations Acts and in accord25 ance with rules promulgated by the President, the
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1 President may make grants or services available to

2 any group of individuals which may be affected by

3 a release or threatened release of a hazardous sub4 stance or pollutant, or contaminant at or from a fa5 cility where there is significant response action

6 under this Act including, a site assessment, remedial

7 investigation/feasibility study, or removal or remedial

8 action.’’.

9 (b) Section 117(e) of the Act is amended by striking

10 paragraph (2) and inserting in the following:

11 ‘‘(2) AMOUNT.—The amount of any grants or

12 services may not exceed $50,000 for a single recipi13 ent of grants or services. The President may waive

14 the $50,000 limitation in any case where such waiv15 er is necessary to carry out the purposes of this sub16 section. Each recipient of grants or services shall be

17 required, as a condition of the grants or services, to

18 contribute at least 20 percent of the total costs of

19 the technical assistance for which such grants and

20 services are made. The President may waive the 20

21 percent contribution requirement if the grants or

22 services recipient demonstrates financial need, and

23 such waiver is necessary to facilitate public partici24 pation in the selection of remedial action at the fa25 cility. Not more than one award or grants or serv-
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1 ices may be made with respect to a single facility,

2 but the grants or services may be renewed to facili3 tate public participation at all stages of remedial ac4 tion.’’.

5 (c) Section 117 of the Act (42 U.S.C. 9617) is

6 amended by adding after subsection (e) the following new

7 subsections:

8 ‘‘(f) EARLY, DIRECT AND MEANINGFUL COMMUNITY

9 INVOLVEMENT.—The President shall provide for early, di10 rect and meaningful community involvement in each sig11 nificant phase of response activities taken under this Act.

12 The President shall provide the community with access to

13 information necessary to develop meaningful comments on

14 critical decisions regarding facility characterization, risks

15 posed by the facility, and selection of removal and reme16 dial actions. The President shall consider the views, pref17 erences and recommendations of the affected community

18 regarding all aspects of the response activities, including

19 the acceptability to the community of achieving back20 ground levels.

21 ‘‘(g) INFORMATION TO BE DISSEMINATED.—In addi22 tion to other information the President considers appro23 priate, the President shall ensure that the community is

24 provided information on the following:
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1 ‘‘(1) the availability of a Technical Assistance

2 Grant (TAG) under subsection (e), directions on

3 completing the TAG application, and the details of

4 the application process;

5 ‘‘(2) the possibility (where relevant) that mem6 bers of a community may qualify to receive an alter7 native water supply or relocation assistance;

8 ‘‘(3) the Superfund process, and rights of pri9 vate citizens and public interest or community

10 groups;

11 ‘‘(4) the potential for or existence of a Commu12 nity Working Group (CWG) established under sub13 section (i) (as added by the Superfund Reform Act

14 of 1994); and

15 ‘‘(5) an objective description of the facility’s lo16 cation and characteristics, the contaminants present,

17 the known exposure pathways, and the steps being

18 taken to assess the risk presented by the facility.

19 ‘‘(h) PROCESS FOR INVOLVEMENT.—As early as

20 practicable after site discovery, the President shall provide

21 regular, direct, and meaningful community involvement in

22 all phases of the response activities at the facility, includ23 ing—

24 ‘‘(1) SITE ASSESSMENT.—Whenever practicable,

25 during the site assessment, the President shall solicit
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1 and evaluate the concerns and interests of the com2 munity likely affected by the facility. The evaluation

3 may consist of face-to-face community surveys, a

4 minimum of one public meeting, written responses to

5 significant concerns, and other appropriate

6 participatory activities.

7 ‘‘(2) REMEDIAL INVESTIGATION/FEASIBILITY

8 STUDY.—During the remedial investigation and fea9 sibility study, the President shall solicit the views

10 and preferences of the community on the remedi11 ation and disposition of the hazardous substances,

12 pollutants or contaminants at the site. The commu13 nity’s views and preferences shall be described in the

14 remedial investigation and feasibility study and con15 sidered in the development of remedial alternatives

16 for the facility.’’.

17 SEC. 103. COMMUNITY WORKING GROUPS.

18 Section 117 of the Act (42 U.S.C. 9617) is amended

19 by adding after subsection (h) (as added by this Act) the

20 following new subsection:

21 ‘‘(i) COMMUNITY WORKING GROUPS.—

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

23 President shall provide the opportunity to establish

24 a representative public forum, known as a Commu25 nity Working Group (CWG), to achieve direct, regu-
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1 lar and meaningful consultation with community

2 members throughout all stages of a response action.

3 The President shall consult with the CWG at each

4 significant phase of the remedial process.

5 ‘‘(2) INFORMATION CLEARINGHOUSE.—The

6 CWG shall serve as a facility information clearing7 house for the community. In addition to maintaining

8 records of facility status and lists of active citizen

9 groups and available experts, the CWG shall also be

10 a repository for health assessment information and

11 other related health data.

12 ‘‘(3) LAND USE RECOMMENDATIONS.—To es13 tablish land use expectations more reliably, and ob14 tain greater community support for remedial deci15 sions affecting future land use, the President shall

16 consult with the CWG on a regular basis throughout

17 the remedy selection process regarding reasonably

18 anticipated future use of land at the facility. The

19 CWG may offer recommendations to the President

20 at any time during the response activities at the fa21 cility on the reasonably anticipated future use of

22 land at the facility, taking into account development

23 possibilities and future waste management needs.

24 The President shall not be bound by any rec25 ommendation of the CWG. However, when the CWG
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1 achieves substantial agreement on the reasonably

2 anticipated future use of the land at the facility, the

3 President shall give substantial weight to that rec4 ommendation. In cases where there is substantive

5 disagreement within the CWG over a recommenda6 tion regarding the reasonably anticipated future use

7 of land at the facility, the President shall seek to

8 reconcile the differences. In the event of continued

9 substantive disagreement, substantial weight shall be

10 given to the views of the residents of the affected

11 community. Should the President make a determina12 tion that is inconsistent with a CWG recommenda13 tion on the reasonably anticipated future use of land

14 at the facility, the President shall issue a written

15 reason for the inconsistency.

16 ‘‘(4) MEMBERS.—CWG membership shall not

17 exceed twenty persons. CWG members shall serve

18 without pay. Nominations for CWG membership

19 shall be solicited and accepted by the President. Se20 lection of CWG members shall be made by the Presi21 dent. In selecting citizen participants for the CWG,

22 the President shall provide notice and an oppor23 tunity to participate in CWGs to persons who poten24 tially are affected by facility contamination in the

25 community. Special efforts shall be made to ensure
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1 that the composition of CWGs reflects a balanced

2 representation of all those interested in facility re3 mediation. In general, it shall be appropriate for the

4 President to offer members of the following groups

5 representation on a CWG—

6 ‘‘(A) Residents and/or landowners who live

7 on or have property immediately adjacent to or

8 near the facility, or who may be directly af9 fected by releases from the facility, with a mini10 mum of one representative of the recipient a

11 grant for technical assistance, if any, awarded

12 under subsection (e);

13 ‘‘(B) Persons who, although not physically

14 as close to the facility as those in the group

15 identified in subparagraph (A), may be poten16 tially affected by releases from the facility;

17 ‘‘(C) Members of the local medical commu18 nity who have resided in the community for at

19 least five years;

20 ‘‘(D) Representatives of Indian tribes;

21 ‘‘(E) Representatives of citizen, environ22 mental or public interest groups with members

23 residing in the community;

24 ‘‘(F) Local government officials;
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1 ‘‘(G) Workers at the facility who will be in2 volved in actual cleanup operations;

3 ‘‘(H) Persons at the facility during re4 sponse actions;

5 ‘‘(I) Facility owners and the significant

6 PRPs who, whenever practicable, represent a

7 balance of interests; and,

8 ‘‘(J) Members of the local business com9 munity.

10 ‘‘(5) OTHER COMMUNITY VIEWS.—The exist11 ence of a CWG shall not affect or diminish any

12 other obligation of the President to consider the

13 views of any person in selecting response actions

14 under this Act.’’.

15 SEC. 104. CITIZEN INFORMATION AND ACCESS OFFICES.

16 Section 117 of the Act (42 U.S.C. 9617) is amended

17 by adding after subsection (i) (as added by this Act) the

18 following new subsection:

19 ‘‘(j) CITIZEN INFORMATION AND ACCESS OFFICES.—

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

21 Administrator shall ensure that an independent Citi22 zen Information and Access Office (CIAO) is estab23 lished in each state and on each tribal land affected

24 by a National Priorities List facility.
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1 ‘‘(2) PRIMARY FUNCTIONS.—The primary func2 tions of each CIAO shall be to—

3 ‘‘(A) inform citizens and elected officials at

4 all levels of government of the existence and

5 status of National Priorities List facilities in

6 the state;

7 ‘‘(B) provide citizens with information

8 about each phase of the Superfund process, in9 cluding the site identification, assessment and

10 cleanup phases;

11 ‘‘(C) ensure wide distribution of informa12 tion that is easily understood by citizens;

13 ‘‘(D) serve as a state-wide, or tribal land14 wide clearinghouse of information; and

15 ‘‘(E) assist in the Administrator’s efforts

16 to notify, nominate, and select potential Com17 munity Working Group members.’’.

18 SEC. 105. RESPONSE TO COMMENTS.

19 Section 117(a) (42 U.S.C. 9617(a)) of the Act is

20 amended by striking ‘‘both of’’ from the phrase imme21 diately preceding paragraph (1) and by inserting after

22 paragraph (2) the following new paragraph:

23 ‘‘(3) Consider the recommendations of any

24 Community Working Group, community members

25 and Technical Assistance Grant recipients estab-
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1 lished for the facility pursuant to this section. Pro2 vide, in writing a response to each significant com3 ment received during the public comment period.

4 The written response shall include an explanation of

5 how the lead agency has used or rejected significant

6 comments of the Community Working Group in its

7 final decision.’’.

8 SEC. 106. MULTIPLE SOURCES OF RISK DEMONSTRATION

9 PROJECTS.

10 Section 117 of the Act (42 U.S.C. 9617) is amended

11 by adding after subsection (j) (as added by this Act) the

12 following new subsection:

13 ‘‘(k) MULTIPLE SOURCES OF RISK DEMONSTRATION

14 PROJECTS.—

15 ‘‘(1) IN GENERAL.—The Administrator shall se16 lect at least 10 demonstration projects to be imple17 mented over a five year period, relating to the iden18 tification, assessment, management of, and response

19 to, multiple sources of risk in and around designated

20 facilities. These demonstration projects will examine

21 various approaches to protect communities exposed

22 to such multiple sources of risk. The Administrator

23 shall promulgate regulations that set forth the cri24 teria by which demonstration projects will be se25 lected.
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1 ‘‘(2) ADDITIONAL HEALTH BENEFITS.—In the

2 course of conducting these demonstration projects, if

3 a distinct pattern of adverse health effects is identi4 fied in the surrounding community, the Adminis5 trator shall consider the provision of additional

6 health benefits to the affected community, in an ef7 fort to improve community health and welfare. Addi8 tional benefits may include services such as consulta9 tions on health information and health screening,

10 the kind and availability of which will be set forth

11 in regulations promulgated by the Administrator.

12 These benefits shall not duplicate any activities al13 ready undertaken at those facilities by the Agency

14 for Toxic Substances and Disease Registry under

15 section 104(i) of this Act.

16 ‘‘(3) MULTIPLE SOURCES OF RISK.—For the

17 purposes of this section, the term ‘‘multiple sources

18 of risk’’ means—

19 ‘‘(A) health risks from the existence of and

20 exposure to hazardous substances in the vicinity

21 of a facility for which a response action under

22 this Act is considered, which may present risks

23 to persons who are also at risk due to condi24 tions at such a facility; or
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1 ‘‘(B) health risks from releases or threat2 ened releases of a hazardous substance, pollut3 ant or contaminant from facilities, permitted or

4 otherwise, in the vicinity of a facility for which

5 a response action under this Act is being con6 sidered, which may present risks to persons who

7 are also at risk due to the specific facility for

8 which a response action is being considered.

9 ‘‘(4) CONSISTENCY WITH DESIGNATION OF

10 EMPOWERMENT ZONES.—The Administrator shall,

11 to the maximum extent practicable, select locations

12 for conducting demonstration projects under this

13 subsection that coincide with areas which have been

14 identified as empowerment zones under the Omnibus

15 Budget Reconciliation Act of 1994 (Public Law

16 103–66).

17 ‘‘(5) RIGHT TO PETITION.—Any person may

18 petition the Administrator to conduct a demonstra19 tion project under this subsection at a specified loca20 tion. Without regard to paragraph (4), the Adminis21 trator may grant such a petition if—

22 ‘‘(A) the petition sets out a reasonable

23 basis in fact that the population residing in the

24 vicinity of the specified location may be exposed
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1 to multiple sources of risk as described in para2 graph (3) and;

3 ‘‘(B) the petition otherwise meets the re4 quirements of regulations promulgated by the

5 Administrator which set forth the criteria by

6 which demonstration projects will be selected.

7 ‘‘(6) REVIEWS OF PETITIONS.—The Adminis8 trator’s determinations and reviews of petitions

9 under this subsection are committed to the Adminis10 trator’s unreviewable discretion.

11 ‘‘(7) INTERAGENCY COORDINATION.—The Ad12 ministrator shall coordinate with other departments

13 or agencies as necessary in carrying out the respon14 sibilities of this subsection.’’.

15 SEC. 107. ASSESSING RISKS FROM MULTIPLE SOURCES.

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

17 amended by adding after paragraph (10) the following

18 new paragraph:

19 ‘‘(11) standards and procedures for assessing

20 the risks, and the cumulative impact of such risks,

21 posed by the release or threatened release of hazard22 ous substances, or pollutants, or contaminants from

23 multiple sources of risk (as described in section

24 117(l)(3) of this Act) in and around a facility, for

25 utilization in response actions authorized by this
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1 Act. The demonstration projects authorized under

2 subsection 117(l) of this Act shall be used to help

3 meet the requirements of this subsection.’’.

4 SEC. 108. MULTIPLE SOURCES OF RISK IN PRIORITY SET5 TING.

6 Section 105(a)(8)(A) of the Act (42 U.S.C.

7 9605(a)(8)(A)) is amended by adding in the last sentence

8 before ‘‘and other appropriate factors’’ the following ‘‘the

9 presence of multiple sources of risk (described in section

10 117(l)(3) of this Act) to affected communities.’’.

11 SEC. 109. DISEASE REGISTRY AND MEDICAL CARE PROVID12 ERS.

13 Section 104(i)(1) of the Act (42 U.S.C. 9604(i)(1))

14 is amended:

15 (a) by amending subparagraph (A) to read as

16 follows:

17 ‘‘(A) in cooperation with the States, for sci18 entific purposes and public health purposes, estab19 lish and maintain a national registry of persons ex20 posed to toxic substances;’’; and

21 (b) by amending subparagraph (E) by striking

22 ‘‘admissions to hospitals and other facilities and

23 services operated or provided by the Public Health

24 Service’’ and by inserting ‘‘referral to accredited

25 medical care providers’’.
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1 SEC. 110. SUBSTANCE PROFILES.

2 Section 104(i)(3) of the Act (42 U.S.C. 9604(i)(3))

3 is amended by amending the paragraph beginning ‘‘Any

4 toxicological profile or revision thereof’’ to read as follows:

5 ‘‘Any toxicological profile or revision thereof shall reflect

6 the Administrator of ATSDR’s assessment of all relevant

7 toxicological testing which has been peer reviewed. The

8 profiles prepared under this paragraph shall be for those

9 substances highest on the list of priorities under para10 graph (2) for which profiles have not previously been pre11 pared or for substances not on the listing but which have

12 been found at non-National Priorities List facilities and

13 which have been determined by ATSDR to be of critical

14 health concern. Profiles required under this paragraph

15 shall be revised and republished as necessary, based on

16 scientific need. Such profiles shall be provided to the

17 States and made available to other interested parties.’’.

18 SEC. 111. DETERMINING HEALTH EFFECTS.

19 Section 104(i)(5) of the Act (42 U.S.C. 9604(i)(5))

20 is amended—

21 (a) in subparagraph (A) by—

22 (1) striking ‘‘designed to determine the

23 health effects (and techniques for development

24 of methods to determine such health effects) of

25 such substance’’ and inserting ‘‘conducted di26 rectly or by means such as cooperative agree-
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1 ments and grants with appropriate public and

2 nonprofit institutions. The research shall be de3 signed to determine the health effects (and

4 techniques for development of methods to deter5 mine such health effects) of the substance’’;

6 and

7 (2) redesignating clause (iv) as ‘‘(v)’’,

8 striking ‘‘and’’ after clause (iii), and by insert9 ing a new clause (iv) to read as follows:

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

11 lead to the development of innovative techniques for

12 predicting organ-specific, site-specific, and system13 specific acute and chronic toxicity; and’’; and

14 (b) striking subparagraph (D).

15 SEC. 112. PUBLIC HEALTH AND RELATED HEALTH ACTIVI16 TIES AT NPL FACILITIES.

17 Section 104(i)(6) of the Act (42 U.S.C. 9604(i)(6))

18 is amended by—

19 (a) amending subparagraph (A) to read as fol20 lows:

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

22 public health assessment or related health activity for each

23 facility on the National Priorities List established under

24 section 105 of this Act. The public health assessment or

25 related health activity shall be completed for each facility
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1 proposed for inclusion on the National Priorities List not

2 later than one year after the date of proposal for inclusion,

3 including those facilities owned by any department, agen4 cy, or instrumentality of the United States.’’; and

5 (b) in subparagraph (H), striking ‘‘health as6 sessment’’ and ‘‘such assessment’’ each place that

7 they appear and inserting ‘‘public health assessment

8 or related health activity’’.

9 SEC. 113. HEALTH STUDIES.

10 Section 104(i)(7)(A) of the Act (42 U.S.C.

11 9604(i)(7)(A)) is amended to read as follows:

12 ‘‘(A) Whenever in the judgment of the Administrator

13 of ATSDR it is appropriate on the basis of the results

14 of a public health assessment or on the basis of other ap15 propriate information, the Administrator of ATSDR shall

16 conduct a human health study of exposure or other health

17 effects for selected groups or individuals in order to deter18 mine the desirability of conducting full scale epidemiologic

19 or other health studies of the entire exposed population.’’.

20 SEC. 114. DISTRIBUTION OF MATERIALS TO HEALTH PRO21 FESSIONALS AND MEDICAL CENTERS.

22 Section 104(i)(14) of the Act (42 U.S.C. 9604(i)(14))

23 is amended to read as follows:
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1 ‘‘(14) In implementing this subsection and other

2 health-related provisions of this Act in cooperation with

3 the States, the Administrator of ATSDR shall—

4 ‘‘(A) assemble, develop as necessary, and dis5 tribute to the States, medical colleges, physicians,

6 nursing institutions, nurses, and other health profes7 sionals and medical centers, appropriate educational

8 materials (including short courses) on the medical

9 surveillance, screening, and methods of prevention,

10 diagnosis and treatment of injury or disease related

11 to exposure to hazardous substances (giving priority

12 to those listed in paragraph (2)), through means the

13 Administrator of ATSDR considers appropriate; and

14 ‘‘(B) assemble, develop as necessary, and dis15 tribute to the general public and to at-risk popu16 lations appropriate educational materials and other

17 information on human health effects of hazardous

18 substances.’’.

19 SEC. 115. GRANT AWARDS/CONTRACTS/COMMUNITY ASSIST20 ANCE ACTIVITIES.

21 Section 104(i)(15) of the Act (42 U.S.C. 6904(i)(15))

22 is amended by—

23 (a) inserting ‘‘(A)’’ before ‘‘The activities’’;

24 (b) striking ‘‘cooperative agreements with

25 States (or political subdivisions thereof)’’ and insert-
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1 ing ‘‘grants, cooperative agreements, or contracts

2 with States (or political subdivisions thereof), other

3 appropriate public authorities, public or private in4 stitutions, colleges, and universities, and professional

5 associations,’’;

6 (c) in the second sentence, inserting ‘‘public’’

7 before ‘‘health assessments’’; and

8 (d) adding a new subparagraph as follows:

9 ‘‘(B) When a public health assessment or related

10 health activity is conducted at a facility on, or a release

11 being evaluated for inclusion on the National Priorities

12 List, the Administrator of ATSDR may provide the assist13 ance specified in this paragraph to public or private non14 profit entities, individuals, and community-based groups

15 who may be affected by the release or threatened release

16 of hazardous substances in the environment.’’.

17 SEC. 116. PUBLIC HEALTH RECOMMENDATIONS IN REME18 DIAL ACTIONS.

19 Section 121(c) of the Act (42 U.S.C. 9621(c)) is

20 amended by inserting after the phrase ‘‘remedial action’’

21 the second time it appears the following: ‘‘, including pub22 lic health recommendations and decisions resulting from

23 activities under section 104(i),’’.
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1 SEC. 117. ATSDR NOTIFICATION.

2 Section 122 of the Act (42 U.S.C. 9622) is amended

3 by inserting after subsection (m) the following new sub4 section:

5 ‘‘(n) NOTIFICATION OF ATSDR.—When the Agency

6 for Toxic Substances and Disease Registry (ATSDR) has

7 conducted health related response activities pursuant to

8 section 104(i) in response to a release or threatened re9 lease of any hazardous substance that is the subject of

10 negotiations under this section, the President shall notify

11 ATSDR of the negotiations and shall encourage the par12 ticipation of ATSDR in the negotiations.’’.

13 TITLE II—STATE ROLES

14 SEC. 201. STATE AUTHORITY.

15 (a) Title I of the Act (42 U.S.C. 9600 et seq.) is

16 amended by adding after section 126 the following new

17 section:

18 ‘‘SEC. 127. STATE AUTHORITY.

19 ‘‘(a) STATE PROGRAM AUTHORIZATION.—

20 ‘‘(1) IN GENERAL.—At any time after the pro21 mulgation of the criteria required by paragraph (3)

22 of this subsection, a State may apply to the Admin23 istrator to carry out, under its own legal authorities,

24 response actions and enforcement activities at all fa25 cilities listed or proposed for listing on the National

26 Priorities List, or certain categories of facilities list-
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1 ed or proposed for listing on the National Priorities

2 List, within the State. This section shall not apply

3 to any facility owned or operated by a department,

4 agency, or instrumentality of the United States list5 ed on the National Priorities List if, on the date of

6 enactment of the Superfund Reform Act of 1994, an

7 interagency agreement for such facility has been en8 tered into pursuant to section 120(a)(2).

9 ‘‘(2) REQUIREMENTS FOR AUTHORIZATION.—If

10 the Administrator determines that the State pos11 sesses the legal authority, technical capability, and

12 resources necessary to conduct response actions and

13 enforcement activities in a manner that is substan14 tially consistent with this Act and the National Con15 tingency Plan at the facilities listed or proposed for

16 listing on the National Priorities List for which it

17 seeks authorization, the Administrator, pursuant to

18 a contract or agreement entered into between the

19 Administrator and the State, may authorize the

20 State to assume the responsibilities established

21 under this Act at all such facilities or categories of

22 facilities. Except as otherwise provided in this Act,

23 such responsibilities include, but are not limited to,

24 responding to a release or threatened release of a

25 hazardous substance or pollutant or contaminant;
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1 selecting response actions; expending the Fund in

2 amounts authorized by the Administrator to finance

3 response activities; and taking enforcement actions,

4 including cost recovery actions to recover Fund ex5 penditures made by the State. In an application for

6 authorization, a State shall acknowledge its respon7 sibility to address all response actions at the facili8 ties for which it seeks authorization.

9 ‘‘(3) PROMULGATION OF REGULATIONS.—The

10 Administrator shall issue regulations to determine a

11 State’s eligibility for authorization and establish a

12 process and criteria for withdrawal of such an au13 thorization. At a minimum, a State must dem14 onstrate—

15 ‘‘(A) that it has a process for allocating li16 ability among potentially responsible parties

17 that is substantially consistent with section

18 122a of this Act (as added by the Superfund

19 Reform Act of 1994);

20 ‘‘(B) that it provides for public participa21 tion in a manner that is substantially consistent

22 with section 117 of this Act and the National

23 Contingency Plan;

24 ‘‘(C) that it provides for selection and con25 duct of response actions in a manner that is
27

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1 substantially consistent with section 121 of this

2 Act; and

3 ‘‘(D) that it provides for notification of

4 and coordination with trustees in a manner that

5 is substantially consistent with section

6 104(b)(2) and section 122(j)(1) of this Act.

7 ‘‘(b) REFERRAL OF RESPONSIBILITIES.—

8 ‘‘(1) IN GENERAL.—At any time after the pro9 mulgation of the criteria required by paragraph (3)

10 of this subsection, a State may apply to the Admin11 istrator to carry out, under its own legal authorities,

12 response actions at a specific facility or facilities list13 ed or proposed for listing on the National Priorities

14 List, within the State.

15 ‘‘(2) REQUIREMENTS FOR REFERRAL.—If the

16 Administrator determines that the State possesses

17 the legal authority, technical capability, and re18 sources necessary to conduct response actions and

19 enforcement activities in a manner substantially con20 sistent with this Act and the National Contingency

21 Plan at the facilities listed or proposed for listing on

22 the National Priorities List facilities for which it

23 seeks referral, the Administrator, pursuant to a con24 tract or agreement entered into between the Admin25 istrator and the State, may refer the responsibilities
28

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1 established under this Act to the State for the facili2 ties for which the State seeks referral. Except as

3 otherwise provided in this Act, such responsibilities

4 include, but are not limited to, responding to a re5 lease or threatened release of a hazardous substance

6 or pollutant or contaminant; selecting response ac7 tions; expending the Fund in amounts authorized by

8 the Administrator to finance response activities; and

9 taking enforcement actions, including cost recovery

10 actions to recover Fund expenditures made by the

11 State.

12 ‘‘(3) PROMULGATION OF REGULATIONS.—The

13 Administrator shall promulgate regulations to deter14 mine a State’s eligibility for referral and establish a

15 process and criteria for withdrawal of such referral.

16 At a minimum, a State must demonstrate that it

17 meets the requirements described in subsection

18 (a)(3).

19 ‘‘(c) AUTHORIZED USE OF FUND.—At facilities listed

20 on the National Priorities List for which a State is author21 ized under subsection (a), and at facilities listed on the

22 National Priorities List which are referred to a State

23 under subsection (b), the State shall be eligible for re24 sponse action financing from the Fund. The Administrator

25 shall ensure that all allocations of the Fund to the States
29

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1 for the purpose of undertaking site-specific response ac2 tions are based primarily on the relative risks to human

3 health and the environment posed by the facilities eligible

4 for funding. The amount of Fund financing for a State5 selected response action at a facility listed on the National

6 Priorities List shall—

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

8 viability of parties identified as potentially liable for

9 response costs at such facility, and

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

11 achieve a level of response that is not more stringent

12 than that required under this Act.

13 A State also may obtain Fund financing to develop and

14 enhance its capacity to undertake response actions and en15 forcement activities. The Administrator shall establish

16 specific criteria for allocating expenditures from the Fund

17 among States for the purposes of undertaking response

18 actions and enforcement activities at referred and State19 authorized facilities, and building state capacities to un20 dertake such response actions and enforcement activities.

21 The Administrator shall develop a program and provide

22 an appropriate level of Fund financing to assist Indian

23 tribes in developing and enhancing their capabilities to

24 conduct response actions and enforcement activities.
30

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1 ‘‘(d) STATE COST SHARE.—As provided in section

2 104(c)(3)(B) of this Act (as added by the Superfund Re3 form Act of 1994), a State shall pay or assure payment

4 of 15 percent of the costs of all response actions and pro5 gram support or other costs for which the State receives

6 funds from the Fund under this section. An Indian tribe

7 authorized to conduct a response actions and enforcement

8 activities or to which facilities have been referred under

9 this section is not subject to the cost-share requirement

10 of this subsection.

11 ‘‘(e) TERMS AND CONDITIONS; COST RECOVERY.—A

12 contract or agreement for a State authorization or referral

13 under this section is subject to such terms and conditions

14 as the Administrator prescribes. The terms and conditions

15 shall include requirements for periodic auditing and re16 porting of State expenditures from the Fund. The contract

17 or agreement may cover a specific facility, a category of

18 facilities, or all facilities listed or proposed to be listed on

19 the National Priorities List in the State. The contract or

20 agreement shall require the State to seek cost recovery,

21 as contemplated by this Act, of all expenditures from the

22 Fund. Five percent of the monies recovered by the State

23 may be retained by the State for use in its hazardous sub24 stance response program, and the remainder shall be re25 turned to the Fund. Before making further allocations
31

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1 from the Fund to any State, the Administrator shall take

2 into consideration the effectiveness of the State’s enforce3 ment program and cost recovery efforts.

4 ‘‘(f) ENFORCEMENT OF AGREEMENTS.—If the Ad5 ministrator enters into a contract or agreement with a

6 State pursuant to this section, and the State fails to com7 ply with any terms and conditions of the contract or agree8 ment, the Administrator, after providing sixty days notice,

9 may withdraw the State authorization or referral, or seek

10 in the appropriate Federal district court to enforce the

11 contract or agreement to recover any funds advanced or

12 any costs incurred because of the breach of the contract

13 or agreement by the State.

14 ‘‘(g) MORE STRINGENT STATE STANDARDS.—Under

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

16 response action that achieves a level of cleanup that is

17 more stringent than required under section 121(d) of this

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

19 in response cost attributable to achieving the more strin20 gent cleanup level. Neither the Fund nor any party liable

21 for response costs shall incur costs in excess of those nec22 essary to achieve a level of cleanup required under section

23 121(d) of this Act.

24 ‘‘(h) OPPORTNITY FOR PUBLIC COMMENT.—The Ad25 ministrator shall make available, for public review and
32

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1 comment, applications for authorization under subsection

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

3 Administrator shall not approve or withdraw authorization

4 or referral from a State unless the Administrator notifies

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

6 such approval or withdrawal.

7 ‘‘(i) PERIODIC REVIEW OF AUTHORIZED STATE PRO8 GRAMS AND REFERRALS.—The Administrator shall con9 duct a periodic review of authorized State programs and

10 referrals to determine, among other things, whether—

11 ‘‘(1) the response actions were selected and con12 ducted in a manner that was substantially consistent

13 with this Act, the National Contingency Plan, and

14 the contract or agreement between the Adminis15 trator and the State;

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

17 expenditures were incurred in the manner agreed to

18 by the State, in accordance with the contract or

19 agreement between the Administrator and the State;

20 and

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

22 enforcement efforts were conducted in accordance

23 with the contract or agreement between the Admin24 istrator and the State.
33

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1 The Administrator, in consultation with the States, shall

2 develop specific criteria for periodic reviews of authorized

3 State programs and referrals. The Administrator shall es4 tablish a mechanism to make the periodic State reviews

5 available to the public.

6 ‘‘(j) MODIFICATION OF RESPONSE.—At a facility for

7 which a State selects a response action under an author8 ization or a referral, the State shall afford the opportunity

9 for public participation in a manner that is substantially

10 consistent with the requirements of section 117(f)–(i) of

11 this Act, and shall give notice of and a copy of the pro12 posed plan for response action to the Administrator. The

13 State also shall give prompt written notice and a copy of

14 the final decision in selecting the response action to the

15 Administrator. Within 90 days from the date of receipt

16 of such notice and final response action decision from the

17 State, the Administrator may issue a notice of a request

18 to modify the State-selected remedy. The Administrator’s

19 notice shall be in writing and shall set forth the basis for

20 the Administrator’s position, and the final date for re21 sponding to the Administrator’s request, which shall be

22 no less than 90 days from the date of the notice. If the

23 State’s response does not resolve the Administrator’s con24 cerns to the Administrator’s satisfaction, the Adminis25 trator may withhold the distribution of Fund monies for
34

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1 the selected response action or may withdraw all or part

2 of the State’s authorization or referral.

3 ‘‘(k) EFFECT OF SECTION.—The President shall re4 tain the authority to take response actions at facilities list5 ed or proposed for listing on the National Priorities List

6 that are not being addressed by a State under an author7 ization or referral pursuant to this section. At facilities

8 listed or proposed for listing on the National Priorities

9 List that are being addressed by a State under either an

10 authorization or a referral, the President may take re11 sponse actions that the President determines necessary to

12 protect human health or the environment, if the State

13 fails, after a request by the Administrator to take such

14 response actions in a timely manner. A State does not

15 have the authority, except pursuant to this section, to take

16 or order a response action, or any other action relating

17 to releases or threatened releases, at any facility listed or

18 proposed for listing on the National Priorities List. This

19 section does not affect the authority of the United States

20 under this Act to seek cost recovery for costs incurred by

21 the United States.’’.

22 (b) TRANSITION AND CONFORMING AMENDMENTS.—

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

24 and 104(d)(2) of the Act are each amended by in25 serting after the heading in each paragraph the fol-
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1 lowing—‘‘This paragraph applies only to response

2 actions for which a Record of Decision or other deci3 sion document is signed before the date of enact4 ment of the Superfund Reform Act of 1994 and re5 sponse actions covered by a contract or agreement

6 for which a State has selected, pursuant to the op7 tion provided in subsection (c)(3)(C) (as added by

8 the Superfund Reform Act of 1994), the funding re9 quirements set forth in subsection (c)(3)(A) (as

10 amended by Superfund Reform Act of 1994).’’;

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

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

14 (3) Section 121(f)(1) of the Act is amended by

15 striking the existing provisions and inserting ‘‘The

16 President may repeal, no earlier than one year after

17 the promulgation 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 Superfund Reform Act of 1994.’’;

21 (4) Section 121(f)(2) of the Act is amended

22 by—

23 (A) striking ‘‘legally applicable or relevant

24 and appropriate’’ from the second sentence of

25 subparagraph (A); and
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1 (B) striking ‘‘subsection (d)(4)’’ from the

2 second sentence of subparagraph (A) and in3 serting ‘‘subsection (d)(5)(C)’’;

4 (5) Section 121(f)(3) of the Act is amended

5 by—

6 (A) striking ‘‘legally applicable or relevant

7 and appropriate’’ from the second sentence of

8 subparagraph (A); and

9 (B) striking ‘‘subsection (d)(4)’’ from the

10 second sentence of subparagraph (A) and in11 serting ‘‘subsection (d)(5)(C)’’; and

12 (6) Section 302(d) of the Act is amended by

13 striking ‘‘Nothing’’ and inserting ‘‘Except as other14 wise provided in this Act, nothing’’.

15 SEC. 202. TRANSFER OF AUTHORITIES.

16 Section 120(g) of the Act (42 U.S.C. 9620(g)) is

17 amended by adding, after ‘‘the Environmental Protection

18 Agency,’’ the phrase ‘‘and except as provided in section

19 127,’’.

20 SEC. 203. STATE ROLE IN DETERMINATION OF REMEDIAL

21 ACTION TAKEN.

22 Section 120(h)(3) of the Act (42 U.S.C. 9620(h)(3))

23 is amended by adding at the end thereof the following:

24 ‘‘If the property being transferred is part of a facility sub25 ject to a State authorization or a referral under section
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1 127, all demonstrations required by this paragraph to be

2 made to the Administrator shall be made to the appro3 priate State official.’’.

4 SEC. 204. STATE ASSURANCES.

5 Section 104(c)(3) of the Act (42 U.S.C. 9604(c)(3))

6 is amended by—

7 (a) in the beginning of the paragraph after

8 ‘‘(3)’’ inserting ‘‘State cost shares for response ac9 tions and programs for which Superfund funds may

10 be allocated under this section or section 127 shall

11 be as follows—’’;

12 (b) striking ‘‘The’’ before ‘‘President’’ and in13 serting ‘‘(A) For all remedial actions for which a

14 Record of Decision is signed before the date of en15 actment of the Superfund Reform Act of 1994, the’’;

16 (c) redesignating subparagraphs (A), (B) and

17 (C) of existing section 104(c)(3) as subparagraphs

18 (1), (2) and (3) respectively; by striking ‘‘(i)’’, wher19 ever it appears and inserting ‘‘(I)’’; and striking

20 ‘‘(ii)’’ wherever it appears and inserting ‘‘(II)’’;

21 (d) adding a new subparagraph (B) as fol22 lows—

23 ‘‘(B) Subject to the provisions of subparagraph (C),

24 for the costs of all response actions for which a Record

25 of Decision or other decision document is signed after the
38

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1 date that is one year after the effective date of final regu2 lations promulgated under section 127(a)(3) and section

3 127(b)(3), and for all program or other costs for which

4 Fund money may be allocated to the State pursuant to

5 this section or section 127, the President shall not provide

6 or authorize funding from the Fund unless the State first

7 enters into a contract or agreement with the President

8 providing assurances deemed adequate by the President

9 that the State will pay or assure payment of 15 percentum

10 of all such costs as required by section 127(d). The Ad11 ministrator may provide funding authorized under this

12 paragraph for a one-year or other period for all costs and

13 facilities in a State; in that event, the State cost share

14 requirement set forth above shall apply to all costs covered

15 by such period.’’; and

16 (e) adding a new subparagraph (C) as follows:

17 ‘‘(C) Each State shall have the option of receiving

18 funding for all response action costs and program or other

19 costs for which funding is authorized under this section

20 or section 127 pursuant to either subparagraph (A) or

21 subparagraph (B) of this paragraph. The option selected

22 by the State shall apply to all contracts and agreements

23 signed pursuant to this section or section 127.’’.
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1 SEC. 205. SITING.

2 Section 104(c)(9) of the Act (42 U.S.C. 9604(c)(9))

3 is amended to read as follows:

4 ‘‘(9) SITING.—Effective one year after the date of en5 actment of the Superfund Reform Act of 1994, the Presi6 dent shall not provide any remedial actions pursuant to

7 this section unless the State in which the release occurs

8 submits a report describing its plans for adequate disposal

9 capacity for hazardous wastes, in accordance with guide10 lines issued by the Administrator.’’.

11 SEC. 206. THE NATIONAL PRIORITIES LIST.

12 (a) Section 105(a)(8)(B) of the Act (42 U.S.C.

13 9605(a)(8)(B)) is amended by striking ‘‘as part of the

14 plan’’, and by inserting before ‘‘Within’’ the sentence

15 ‘‘The National Priorities List, and any modifications to

16 the National Priorities List, may be adopted administra17 tively, and without rulemaking.’’.

18 (b) Section 105(a)(8) of the Act (42 U.S.C.

19 9605(a)(8)) is amended by adding after subparagraph (B)

20 the following new subparagraph:

21 ‘‘(C) before determining that a facility is to be

22 listed on the National Priorities List, the Adminis23 trator shall publish a notice proposing the facility

24 for listing on the National Priorities List and shall

25 provide an opportunity for public comment. Public

26 notice and opportunity for comment also shall be
40

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1 provided before a decision by the Administrator to

2 remove a facility from the National Priorities List.

3 The Administrator shall establish a procedure under

4 which any person may request that a facility be con5 sidered for listing on, or removal from, the National

6 Priorities List. The Administrator has the sole dis7 cretion to list or remove a facility on the National

8 Priorities List.’’.

9 SEC. 207. THE STATE REGISTRY.

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

11 is amended by adding after subparagraph (C) (as added

12 by this Act) a new subparagraph—

13 ‘‘(D) STATE REGISTRY.—Each State shall

14 maintain and make available to the public a list of

15 facilities in the State that are believed to present a

16 current or potential hazard to human health or the

17 environment due to the release or threatened release

18 of hazardous substances or pollutants or contami19 nants. Each State, in consultation with the Adminis20 trator and other appropriate federal agencies, shall

21 prepare such listing, and shall, on an annual basis,

22 publish the State Registry, specifying the govern23 mental agency addressing the facility, and whether

24 the facility is on the National Priorities List.’’.
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1 TITLE III—VOLUNTARY RESPONSE

2 SEC. 301. PURPOSES AND OBJECTIVES.

3 The purposes and objectives of this title are to—

4 (a) significantly increase the pace of response

5 activities at contaminated sites by promoting and

6 encouraging the development and expansion of State

7 voluntary response programs, and

8 (b) benefit the public welfare by returning con9 taminated sites to economically productive uses.

10 SEC. 302. STATE VOLUNTARY RESPONSE PROGRAM.

11 Title I of the Act is amended by adding after section

12 127 (as added by this Act) the following new section:

13 ‘‘SEC. 128. VOLUNTARY RESPONSE PROGRAM.

14 ‘‘(a) IN GENERAL.—The Administrator shall estab15 lish a program to provide technical and other assistance

16 to the States to establish and expand voluntary response

17 programs.

18 ‘‘(b) VOLUNTARY RESPONSE PROGRAM.—The Ad19 ministrator shall assist States to establish and administer

20 a voluntary program that—

21 ‘‘(1) covers all eligible facilities, as defined in

22 subsection (c) of this section, within the State;

23 ‘‘(2) provides adequate opportunities for public

24 participation, including prior notice and opportunity

25 for comment, in selecting response actions;
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1 ‘‘(3) provides opportunities for technical assist2 ance for voluntary response actions;

3 ‘‘(4) has the capability, through enforcement or

4 other mechanisms, of assuming the responsibility for

5 completing a response action if the current owner or

6 prospective purchaser fails or refuses to complete the

7 necessary response, including operation and mainte8 nance; and

9 ‘‘(5) provides adequate oversight and has ade10 quate enforcement authorities to ensure that vol11 untary response actions are completed in accordance

12 with applicable Federal and State laws, including

13 applicable permit requirements and any on-going op14 eration and maintenance or long-term monitoring

15 activities.

16 ‘‘(c) ELIGIBLE FACILITIES.—

17 ‘‘(1) Except as provided in paragraph 2 of this

18 subsection, the term ‘eligible facility’ means a facil19 ity or portion of a facility where there has been a

20 release or threat of release of a hazardous sub21 stance, pollutant, or contaminant into the environ22 ment.

23 ‘‘(2) The term ‘eligible facility’ does not include

24 any of the following—
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1 ‘‘(A) a facility at which a remedial inves2 tigation and feasibility study is underway, un3 less the Administrator, in consultation with the

4 State, determines that it is appropriate to allow

5 the response action at such a facility to proceed

6 under a voluntary response program;

7 ‘‘(B) a facility with respect to which a

8 Record of Decision has been issued under sec9 tion 104 of this Act;

10 ‘‘(C) a facility with respect to which a cor11 rective action permit condition or order has

12 been proposed, issued, modified, or amended to

13 require implementation of specific corrective

14 measures under section 3004(u), 3004(v), or

15 3008(h) of the Solid Waste Disposal Act (42

16 U.S.C. 6924(u), 6924(v), or 6928(h)):

17 ‘‘(D) a land disposal unit with respect to

18 which a closure notification under subtitle C of

19 the Solid Waste Disposal Act (42 U.S.C. 6921

20 et seq.) has been submitted;

21 ‘‘(E) a facility with respect to which an ad22 ministrative or judicial order or decree concern23 ing the response action has been issued, sought,

24 or entered into by the United States under this

25 Act, the Solid Waste Disposal Act (42 U.S.C.
44

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1 6901 et seq.), the Atomic Energy Act of 1954

2 (42 U.S.C. 2011 et seq.), the Federal Water

3 Pollution Control Act (33 U.S.C. 1251 et seq.),

4 the Toxic Substances Control Act (15 U.S.C.

5 2601 et seq.) or title XIV of the Public Health

6 Service Act, commonly known as the Safe

7 Drinking Water Act (42 U.S.C. 300(f) et seq.);

8 and

9 ‘‘(F) a facility at which assistance for re10 sponse activities may be obtained under subtitle

11 I of the Solid Waste Disposal Act (42 U.S.C.

12 6991 et seq.) from the Leaking Underground

13 Storage Tank Trust Fund established under

14 section 9508 of the Internal Revenue Code of

15 1986.

16 ‘‘(3) A facility listed or proposed for listing on

17 the National Priorities List may be an ‘‘eligible facil18 ity’’ if—

19 ‘‘(A) the facility is not a facility identified

20 in paragraph (2);

21 ‘‘(B) the State in which the facility is lo22 cated has obtained a State authorization or re23 ferral under section 127 of this Act; and
45

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1 ‘‘(C) the Administrator concurs in the

2 State’s determination to address the facility

3 under its voluntary response program.

4 ‘‘(d) ANNUAL REPORTING.—The Administrator shall

5 report, not later than 1 year after enactment of this Act

6 and annually thereafter, to the Congress on the status of

7 State voluntary response programs including—

8 ‘‘(1) whether the State’s voluntary response

9 program continues to meet the criteria set forth in

10 subsection (b) or (c);

11 ‘‘(2) whether the State has adopted procedures

12 to ensure that all response actions completed or un13 dertaken under the State’s voluntary response pro14 gram comply with all applicable Federal and State

15 laws;

16 ‘‘(3) whether public participation opportunities

17 have been adequate during the process of selecting

18 a response action for each voluntary response;

19 ‘‘(4) whether voluntary response actions com20 pleted or undertaken under the State voluntary re21 sponse program have been implemented in a manner

22 that has reduced or eliminated risks to human

23 health and the environment to the satisfaction of the

24 State;
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1 ‘‘(5) whether voluntary response actions com2 pleted or undertaken under the State voluntary re3 sponse program at facilities listed or proposed for

4 listing on the National Priorities List were con5 ducted in accordance with section 121(d) of this Act;

6 and

7 ‘‘(6) whether a voluntary response action has

8 increased risk to human health or the environment,

9 and whether a State has taken timely and appro10 priate steps to reduce or eliminate that risk to

11 human health or the environment.

12 ‘‘(e) STATUTORY CONSTRUCTION.—This section is

13 not intended—

14 ‘‘(1) to impose any requirement on a State vol15 untary response program existing on or after the

16 date of enactment of this Act; or

17 ‘‘(2) to affect the liability of any person or re18 sponse authorities afforded under any law (including

19 any regulation) relating to environmental contamina20 tion, including this Act (except as expressly provided

21 in section 101(39)(D) (42 U.S.C. 9601(39)(D)), sec22 tion 107(a)(5)(C) (42 U.S.C. 9607(a)(5)(C)), the

23 Solid Waste Disposal Act (42 U.S.C. 6901 et. seq.),

24 the Federal Water Pollution Control Act (33 U.S.C.

25 1251 et. seq.), the Toxic Substances Control Act (15
47

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1 U.S.C. 2601 et. seq.), or title XIV of the Public

2 Health Service Act, commonly known as the ‘‘Safe

3 Drinking Water Act’’ (42 U.S.C. 300(f) et. seq.).’’.

4 SEC. 303. SITE CHARACTERIZATION PROGRAM.

5 Title I of the Act is amended by adding after section

6 128 (as added by this Act) the following new section:

7 ‘‘SEC. 129 SITE CHARACTERIZATION TECHNICAL ASSIST8 ANCE PROGRAM

9 ‘‘(a) IN GENERAL.—The Administrator shall estab10 lish a program to provide technical and other assistance

11 to municipalities to conduct site characterizations for fa12 cilities at which voluntary response actions are being con13 ducted or are proposed to be conducted pursuant to a

14 State voluntary response program that meets the require15 ments described in section 127.

16 ‘‘(b) TECHNICAL ASSISTANCE.—In carrying out the

17 program established under subsection (a), the Adminis18 trator may provide technical and other assistance to a mu19 nicipality to conduct a site characterization of a facility

20 within the jurisdiction of the municipality at which vol21 untary response actions are being conducted or are pro22 posed to be conducted. A municipality requesting technical

23 and other assistance shall provide to the Administrator the

24 following information—
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1 ‘‘(1) describing the facility at which voluntary

2 response actions are being conducted or are pro3 posed to be conducted;

4 ‘‘(2) demonstrating the financial need of the

5 owner or prospective purchaser of such a facility for

6 funds to conduct a site characterization;

7 ‘‘(3) analyzing the potential of the facility for

8 creating new businesses and employment opportuni9 ties on completion of the response action;

10 ‘‘(4) estimating the fair market value of the site

11 after the proposed or ongoing response action, if a

12 response action is necessary;

13 ‘‘(5) regarding the economic viability and com14 mercial activity on real property—

15 ‘‘(A) located within the immediate vicinity

16 of the affected site at the time of consideration

17 of the application; or

18 ‘‘(B) projected to be located within the im19 mediate vicinity of the affected site by the date

20 that is 5 years after the date of the consider21 ation of the application;

22 ‘‘(6) regarding the potential of the facility for

23 creating new businesses and employment opportuni24 ties on completion of a response action;
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1 ‘‘(7) regarding whether the affected site is lo2 cated in an economically distressed community;

3 ‘‘(8) regarding the presence of multiple sources

4 of risk as described in section 117(k) of this Act;

5 and

6 ‘‘(9) in such form, as the Administrator consid7 ers appropriate to carry out the purposes of this sec8 tion.’’.

9 TITLE IV—LIABILITY AND ALLOCATION

10 SEC. 401. RESPONSE AUTHORITIES.

11 (a) Section 104(e)(2) of the Act (42 U.S.C.

12 9604(e)(2)) is amended by deleting the word ‘‘cleanup’’

13 and inserting the phrase ‘‘response action’’, and inserting

14 after subparagraph (C) the following:

15 ‘‘(D) The nature and extent of all activities

16 and operations at such vessel or facility, includ17 ing the identity of any persons engaged in, re18 sponsible for, controlling, or having the ability

19 to control such activities or operations.

20 ‘‘(E) Information relating to the liability or

21 responsibility of any person to perform or pay

22 for a response action.

23 ‘‘(F) Information that is otherwise relevant

24 to enforce the provisions of this Act.’’.
50

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1 (b) Section 104(e)(7) of the Act (42 U.S.C. 9604(e))

2 is amended to read as follows:

3 ‘‘(7) ADMINISTRATIVE SUBPOENAS.—When it

4 would assist in the collection of information nec5 essary or appropriate for the purposes of implement6 ing this Act, the President may by subpoena require

7 the attendance and testimony of witnesses and the

8 production of reports, papers, documents, answers to

9 questions, and other information that the President

10 deems necessary. Witnesses shall be paid the same

11 fees and mileage that are paid witnesses in the

12 courts of the United States. In the event of contu13 macy or failure or refusal of any person to obey any

14 such subpoena, any district court of the United

15 States in which venue is proper shall have jurisdic16 tion to order any such person to comply with such

17 subpoena. Any failure to obey such an order of the

18 court is punishable by the court as a contempt

19 thereof.

20 ‘‘(8) CONFIDENTIALITY OF INFORMATION.—

21 ‘‘(A) Any records, reports, or information

22 obtained from any person under this section

23 (including records, reports or information ob24 tained by representatives of the President and

25 records, reports or information obtained pursu-
51

S 1834 IS

1 ant to a contract, grant or other agreement to

2 perform work pursuant to this section, but not

3 including documents, reports, compilations,

4 summaries, or other analyses prepared by the

5 President or representatives of the President

6 which reference or incorporate information ob7 tained under this section) shall be available to

8 the public, except as follows:

9 ‘‘(i) Upon a showing satisfactory to

10 the President (or the State, as the case

11 may be) by any person that records, re12 ports or information, or any particular

13 part thereof (other than health or safety

14 effects data), to which the President (or

15 the State, as the case may be) or any offi16 cer, employee, or representative has access

17 under this section if made public would di18 vulge information entitled to protection

19 under section 1905 of title 18 of the Unit20 ed States Code, such information or par21 ticular portion thereof shall be considered

22 confidential in accordance with the pur23 poses of that section, except that such

24 record, report, document or information

25 may be disclosed to other officers, employ-
52

S 1834 IS

1 ees, or authorized representatives of the

2 United States (including government con3 tractors) concerned with carrying out this

4 chapter, or when relevant in any proceed5 ing under this chapter, or, if such records,

6 reports or information are obtained or sub7 mitted to the United States (or the State,

8 as the case may be) pursuant to a con9 tract, grant or other agreement to perform

10 work pursuant to this section, to persons

11 from whom the President seeks to recover

12 costs pursuant to this Act.

13 ‘‘(ii) This section does not require

14 that information which is exempt from dis15 closure pursuant to section 522(a) of title

16 5 of the United States Code by reason of

17 subsection (b)(5), subsection (b)(6), or

18 subsection (b)(7) of such section, be avail19 able to the public, nor shall the disclosure

20 of any such information pursuant to this

21 section authorize disclosure to other par22 ties or be deemed to waive any confiden23 tiality privilege available to the President

24 under any federal or State law.’’.
53

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1 SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.—

2 (a) Section 106(a) of the Act (42 U.S.C. 9606(a))

3 is amended by—

4 (1) inserting after the phrase ‘‘hazardous sub5 stance’’ the phrase ‘‘, or pollutant or contaminant’’;

6 and

7 (2) by adding at the end thereof the following:

8 ‘‘The President may amend such orders and issue

9 additional orders, as appropriate, without a subse10 quent finding of an imminent and substantial

11 endangerment, to complete response action under12 taken in response to a release or substantial threat

13 of a release, or to require additional response actions

14 that are necessary or appropriate.’’.

15 (b) Section 106(b)(1) of the Act (42 U.S.C.

16 9606(b)(1)) is amended

17 (1) by striking out the phrase ‘‘to enforce such

18 order’’, and

19 (2) by inserting before the period ‘‘, or be re20 quired to comply with such order, or both, even if

21 another party has complied, or is complying, with

22 the terms of the same order or another order per23 taining to the same facility, release or threatened re24 lease’’; and
54

S 1834 IS

1 (3) by inserting at the end of the paragraph the

2 following ‘‘For purposes of this title, a ‘sufficient

3 cause’ requires—

4 ‘‘(A) an objectively reasonable belief by the

5 person to whom the order is issued that the

6 person is not liable for any response costs under

7 section 107 of this title; or

8 ‘‘(B) that the action to be performed pur9 suant to the order is determined to be inconsist10 ent with the national contingency plan.

11 The existence or results of an allocation process pur12 suant to section 122a of this title shall not affect or

13 constitute a basis for a determination of ‘sufficient

14 cause.’ ’’.

15 (c) Section 106(b)(2) is amended by moving the sec16 ond sentence of subsection (b)(2)(A) and redesignating it

17 as subsection (b)(4), and by striking the word ‘‘para18 graph’’ in such newly designated subsection (b)(4) and re19 placing it with the word ‘‘subsection’’.

20 (d) Section 106(b)(2)(A) of the Act (42 U.S.C.

21 9602(b)(2)(A) is amended by striking out the phrase

22 ‘‘completion of ’’, and inserting the phrase ‘‘the President

23 determines that such person has completed’’.

24 (e) Section 106(b)(2)(C) of the Act (42 U.S.C.

25 9606(b)(2)(C)) is amended by inserting after the words
55

S 1834 IS

1 ‘‘Subparagraph (D)’’ the phrase’’, or as may be authorized

2 in a settlement entered into under section 122a of this

3 title.’’.

4 SEC. 403. LIMITATIONS TO LIABILITY FOR RESPONSE

5 COSTS.

6 Section 107 of the Act (42 U.S.C. 9607), is amended

7 (a) in subsection (a) by inserting:

8 ‘‘(5) Notwithstanding paragraphs (1) through

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

10 the performance of response actions or natural re11 source restoration shall not be liable—

12 ‘‘(A) to the extent liability is based solely

13 on subsection 107(a)(3) or 107(a)(4) of this

14 Act, and the arrangement for disposal, treat15 ment, or transport for disposal or treatment, or

16 the acceptance for transport for disposal or

17 treatment, involved less than five hundred

18 pounds of municipal solid waste (MSW) or sew19 age sludge as defined in sections 101(41) and

20 101(44) of this Act, respectively, or such great21 er or lesser amount as the Administrator may

22 determine by regulation;

23 ‘‘(B) to the extent liability is based solely

24 on subsection 107(a)(3) or 107(a)(4) of this

25 Act, and the arrangement for disposal, treat-
56

S 1834 IS

1 ment, or transport for disposal or treatment, or

2 the acceptance for transport for disposal or

3 treatment, involved less than ten pounds or li4 ters of materials containing hazardous sub5 stances or pollutants or contaminants or such

6 greater or lesser amount as the Administrator

7 may determine by regulation, except where—

8 ‘‘(i) the Administrator has determined

9 that such material contributed significantly

10 or could contribute to the costs of response

11 at the facility; or

12 ‘‘(ii) the person has failed to respond

13 fully and completely to information re14 quests by the United States, or has filed to

15 certify that, on the basis of information

16 within its possession, it qualifies for this

17 exception;

18 ‘‘(C) to the extent liability is based solely

19 on subsection 107(a)(1) of this Act, for a re20 lease or threat of release from a facility, and

21 the person is a bona fide prospective purchaser

22 of the facility as defined in section 101(39);

23 ‘‘(D) to the extent the liability of a depart24 ment, agency, or instrumentality of the United

25 States is based solely open section 107(a)(1) or
57

S 1834 IS

1 (2) with regard to a facility over which the de2 partment, agency, or instrumentality exercised

3 no regulatory or other control over activities

4 that directly or indirectly resulted in a release

5 or threat of release of a hazardous substance,

6 and—

7 ‘‘(i) all activities that directly or indi8 rectly resulted in a release or threat of a

9 release of a hazardous substance during

10 the period of ownership by the United

11 States occurred prior to 1976;

12 ‘‘(ii) the activities either directly or in13 directly resulting in a release or a threat of

14 a release of a hazardous substance at the

15 facility were pursuant to a statutory au16 thority;’’

17 ‘‘(iii) such department, agency, or in18 strumentality of the United States did not

19 cause or contribute to the release or threat

20 of release of hazardous substances or pol21 lutants or contaminants at the facility; and

22 ‘‘(iv) there are persons, other than the

23 United States, who are both potentially lia24 ble for the release of hazardous substances

25 or pollutants or contaminants at the facil-
58

S 1834 IS

1 ity and fully capable of performing or fi2 nancing the response action at the facility;

3 or

4 ‘‘(E) to the extent the liability of a Federal

5 or State entity or municipality is based solely

6 on its ownership of a road, street, or other right

7 of way or other public transportation route over

8 which hazardous substances are transported, or

9 the granting of a license or permit to conduct

10 business; or

11 ‘‘(F) for more than 10 per centum of total

12 response costs at the facility, in aggregate, for

13 all persons to the extent their whose liability is

14 based solely on subsections 107(a)(3) or

15 107(a)(4) of this Act, and the arrangement for

16 disposal, treatment, or transport for disposal or

17 treatment, or the acceptance for transport for

18 disposal or treatment involved only municipal

19 solid waste (MSW) or sewage sludge as defined

20 in sections 101(41) and 101(44), respectively,

21 of this Act. Such limitation on liability shall

22 apply only—

23 ‘‘(i) where either the acts or omissions

24 giving rise to liability occurred before the

25 date thirty-six months after enactment of
59

S 1834 IS

1 this paragraph, or the person asserting the

2 limitation institutes or participates in a

3 qualified household hazardous waste collec4 tion program within the meaning of section

5 101(43); and

6 ‘‘(ii) where the disposal did not occur

7 on lands owned by the United States or

8 any department, agency, or instrumentality

9 thereof, or on any tribal land.’’.

10 (b) By inserting after subsection (m) the following:

11 ‘‘(n) PROSPECTIVE PURCHASER AND WINDFALL

12 LIEN.—Where there are unrecovered response costs for

13 which an owner of a facility is not liable by operation of

14 subsection 107(a)(5)(C) of this Act, and a response action

15 for which there are unrecovered costs inures to the benefit

16 of such owner, the United States shall have a lien upon

17 the facility for such unrecovered costs. Such lien—

18 ‘‘(1) shall not exceed the increase in fair market

19 value of the property attributable to the response ac20 tion at the time of a subsequent sale or other dis21 position of property;

22 ‘‘(2) shall be subject to the requirements for no23 tice and validity established in paragraph (3) of sub24 section (l) of this section; and
60

S 1834 IS

1 ‘‘(3) shall continue until the earlier of satisfac2 tion of the lien, or recovery of all response costs in3 curred at the facility.’’.

4 (c) Section 120 of the Act (42 U.S.C. 9620) is

5 amended by inserting before the word ‘‘Facilities’’ in the

6 title of the section the phrase ‘‘Entities And’’.

7 (d) Section 120(a)(1) of the Act (42 U.S.C.

8 9620(a)(1)) is amended—

9 (1) after the word ‘‘title’’ in the first sentence

10 by inserting the phrase ‘‘the right to contribution

11 protection set forth in sections 113 and 122, when

12 such department, agency or instrumentality resolves

13 its share of liability under this Act and liability for

14 all federal civil and administrative penalties and

15 fines imposed under this Act, regardless of whether

16 such penalties and fines are punitive or coercive in

17 nature or are imposed for isolated or continuing vio18 lations.’’;

19 (2) by inserting the word ‘‘other’’ before the

20 phrase ‘‘person or entity’’ in the second sentence

21 and by inserting after the second sentence the fol22 lowing new sentence ‘‘The waiver of immunity in

23 this section does not encompass uniquely govern24 mental actions such as—
61

S 1834 IS

1 ‘‘(A) any actions of any department, agen2 cy or instrumentality, except for official seizure

3 of or holding title to a facility, taken pursuant

4 to Federal authority to regulate the economy in

5 preparation for, during, or otherwise in connec6 tion with war through the use and implementa7 tion of national priority rating systems, national

8 wage, profit and price incentives or controls, or

9 otherwise to mobilize the national economy for

10 war-related production; or

11 ‘‘(B) any actions of any department, agen12 cy, or instrumentality taken in response to a

13 natural disaster pursuant to the Emergency

14 Flood Control Work Act (33 U.S.C. 701(n)), or

15 the Disaster Relief Act of 1974 (42 U.S.C.

16 5121 et seq.).’’;

17 (e) Section 120(a)(4) of the Act (42 U.S.C.

18 9620(a)(4)) is amended—

19 (1) by inserting ‘‘currently’’ before ‘‘owned’’ in

20 the first sentence;

21 (2) by inserting after the word ‘‘United States’’

22 the phrase ‘‘in the following circumstances: (A)’’;

23 and

24 (3) by inserting after the word ‘‘List’’ ‘‘; (B)

25 when such facilities are included on the National
62

S 1834 IS

1 Priorities List but are specifically referred to the

2 State by the Administrator pursuant to the provi3 sions of section 127 of this Act; or (C) when such

4 laws are part of an authorized program approved by

5 the Administrator pursuant to section 127 of this

6 Act, and such facilities are included on the National

7 Priorities List and are to be addressed by the State

8 authorized program pursuant to section 127 of this

9 Act.

10 ‘‘Each department, agency, or instrumentality

11 of the United States shall be subject to State re12 quirements, both substantive and procedural, re13 specting liability for the costs of responding to re14 leases or threats of releases of hazardous substances

15 at non-federally owned facilities referred to the State

16 pursuant to section 127 of this Act, or such require17 ments that are part of a State authorized program

18 for non-federally owned facilities being addressed

19 under a State authorized program pursuant to sec20 tion 127 of this Act.’’;

21 (4) after the word ‘‘preceding’’ by replacing the

22 word ‘‘sentence’’ with ‘‘sentences’’;

23 (5) at the end of the section by adding ‘‘This

24 waiver of immunity for such facilities shall include

25 all civil and administrative penalties and fines im-
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S 1834 IS

1 posed under such laws, regardless of whether such

2 penalties and fines are punitive or coercive in nature

3 or are imposed for isolated or continuing violations.

4 Neither the United States, nor any agent, employee

5 or officer thereof, shall be immune or exempt from

6 any process or sanction of any State or Federal

7 Court with respect to the enforcement of any appro8 priate relief under such laws, but the United States

9 shall be entitled to remove any action filed in State

10 court against any department, agency, instrumental11 ity, employee or officer of the United States to the

12 appropriate Federal district court. No agent, em13 ployee, or officer of the United States shall be per14 sonally liable for any civil or administrative penalty

15 under any Federal or State law with respect to any

16 act or omission within the scope of the official duties

17 of the agent, employee, or officer. All funds collected

18 by a State from the Federal Government from pen19 alties and fines imposed for violation of any sub20 stantive or procedural requirement referred to in

21 this subsection shall be used by the State only for

22 projects designed to improve or protect the environ23 ment or to defray the costs of environmental protec24 tion or enforcement.’’.
64

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1 (f) Section 120(j)(1) of the Act (42 U.S.C.

2 9620(j)(1)) is amended before the phrase ‘‘with respect

3 to the site’’ in the second sentence by inserting ‘‘or any

4 State law applicable under section 120(a)(4)’’.

5 SEC. 404 LIABILITY.

6 (a) Section 107(a)(1) of the Act (42 U.S.C.

7 9607(a)(1)) is amended by striking the word ‘‘and’’ and

8 inserting the word ‘‘or’’;

9 (b) Section 107(a)(3) of the Act (42 U.S.C.

10 9607(a)(3)) is amended by striking out the phrase ‘‘by

11 any other party or entity,’’;

12 (c) Section 107(a)(4) of the Act (42 U.S.C.

13 9607(a)(4)) is amended—

14 (1) by inserting a blank line before the phrase

15 ‘‘from which there is a release’’;

16 (2) by moving the phrase ‘‘from which there is

17 a release’’ to the left margin;

18 (3) inserting a comma after the phrase ‘‘threat19 ened release’’; and

20 (d) Section 107(a)(4)(A) of the Act (42 U.S.C.

21 9607(a)(4)(A)) is amended by inserting the phrase ‘‘, in22 cluding direct costs, indirect costs, and costs of overseeing

23 response actions conducted by private parties’’ before the

24 phrase ‘‘incurred by the United States’’.
65

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1 (e) Section 107(a)(4)(B) of the Act (42 U.S.C.

2 9607(a)(4)(B)) is amended—

3 (1) by striking out the word ‘‘other’’ both times

4 it appears; and

5 (2) by inserting the phrase ‘‘other than the

6 United States, a State or an Indian tribe’’ before the

7 phrase ‘‘consistent with the national contingency

8 plan’’.

9 (f) Section 107(c)(3) of the Act (42 U.S.C.

10 9607(c)(3)) is amended—

11 (1) by inserting the phrase ‘‘in addition to li12 ability for any response costs incurred by the United

13 States as a result of such failure to take proper ac14 tion,’’ after the word ‘‘person’’ the second time it ap15 pears;

16 (2) by striking out the phrase ‘‘at least equal

17 to, and not more than’’ and inserting the phrase ‘‘up

18 to’’;

19 (3) by striking out the comma after the word

20 ‘‘times’’; and

21 (4) by striking out the phrase ‘‘any costs in22 curred by the Fund as a result of such failure to

23 take proper action’’ and inserting the phrase ‘‘such

24 response costs’’.
66

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1 (g) Section 107 of the Act (42 U.S.C. 9607(a)(4)(B))

2 is amended by inserting the phrase ‘‘, or pollutant or con3 taminant’’ after the term ‘‘hazardous substance’’ or ‘‘haz4 ardous substances’’ wherever they appear in sections

5 107(a)(2), (3) and (4); 107(b); 107(c); 107(d)(1) and (2);

6 107(f)(1); 107(i); 107(j); and 107(k)(1)(B).

7 SEC. 405. CIVIL PROCEEDINGS.

8 (a) Section 113(a) of the Act (42 U.S.C. 9613(a))

9 is amended—

10 (1) by striking out the phrase ‘‘upon application

11 by any interested person’’, and inserting the phrase

12 ‘‘by any adversely affected person through the filing

13 of a petition for review’’; and

14 (2) by striking out the phrase ‘‘application shall

15 be made’’, and inserting in lieu thereof ‘‘petition

16 shall be filed’’.

17 (b) Section 113(b) of the Act (42 U.S.C. 9613(b))

18 is amended—

19 (1) before ‘‘without regard to the citizenship,’’

20 by inserting the phrase ‘‘or in any manner limiting

21 or affecting the President’s ability to carry out a re22 sponse action under this title,’’; and

23 (2) by inserting immediately after the first sen24 tence the following sentence—‘‘Any action initiated

25 in any state or local court against the United States
67

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1 (or any department, agency, or instrumentality, offi2 cer or employee thereof) pursuant to or under any

3 provision of or authorized by this title may be re4 moved by the United States to the appropriate fed5 eral district court in accordance with section 1446 of

6 title 18 of the United States Code.’’.

7 (c) Section 113(g) of the Act (42 U.S.C. 9613(g))

8 is amended by striking paragraphs (2) and (3) and insert9 ing:

10 ‘‘(2) ACTIONS FOR RECOVERY OF COSTS.—Ex11 cept as provided in paragraph (3) below, an initial

12 action for recovery of costs referred to in section

13 107 of this title must be commenced—

14 ‘‘(A) for removal action, within three years

15 after completion of all removal action taken

16 with respect to the facility, including off-site

17 disposal of any removed materials; except that

18 if physical on-site construction of the remedial

19 action is initiated within three years after the

20 completion of all removal action taken with re21 spect to the facility, costs incurred for removal

22 action may be recovered in the cost recovery ac23 tion brought under subparagraph (B); and
68

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1 ‘‘(B) for a remedial action, within six years

2 after initiation of physical on-site construction

3 of the remedial action.

4 In any such action described in this subsection, the

5 court shall enter a declaratory judgment on liability

6 for response costs or damages that will be binding

7 on any subsequent action or actions to recover fur8 ther response costs or damages. A subsequent action

9 or actions under section 107 of this title for further

10 response costs at the vessel or facility may be main11 tained at any time during the response action, but

12 must be commenced no later than three years after

13 the date of completion of all response action. Except

14 as otherwise provided in this paragraph, an action

15 may be commenced under section 107 of this title

16 for recovery of costs at any time after such costs

17 have been incurred.

18 ‘‘(3) CONTRIBUTING.—An action by a poten19 tially responsible party against another potentially

20 responsible party for recovery of any response costs

21 or damages must be commenced within the later

22 of—

23 ‘‘(A) the time limitations set forth in para24 graph (2) above, or
69

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1 ‘‘(B) where recovery is sought for costs or

2 damages paid pursuant to a judgment or settle3 ment, three years after—

4 ‘‘(i) the date of judgment in any ac5 tion under this Act for recovery of such

6 costs or damages, or

7 ‘‘(ii) the date of any administrative

8 order or judicial settlement for recovery of

9 the costs or damages paid or incurred pur10 suant to such a settlement.’’.

11 (d) Section 113(g) of the Act (42 U.S.C. 9613(g))

12 is amended by inserting the following at the end thereof:

13 ‘‘(4) CLAIMS BY THE UNITED STATES, STATES

14 OR INDIAN TRIBES.—Claims by the United States

15 under section 106, and claims by the United States,

16 a State or Indian tribe under section 107(a), of this

17 Act shall not be deemed compulsory counterclaims in

18 an action against the United States, a State or an

19 Indian tribe seeking response costs, contribution,

20 damages, or any other claim by any person under

21 this Act.’’.

22 (e) Section 113(j)(1) of the Act (42 U.S.C.

23 9613(j)(1) is amended—
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1 (1) before the phrase ‘‘or ordered’’ by inserting

2 the phrase ‘‘or selected by the President pursuant to

3 this Act,’’; and

4 (2) after the phrase ‘‘or ordered’’ by inserting

5 the phrase ‘‘or sought’’.

6 SEC. 406. LIMITATIONS ON CONTRIBUTION ACTIONS.

7 Section 113 of the Act (42 U.S.C. 9613) is amended

8 (a) by amending subsection (f)(1) as follows—

9 (1) by redesignating the paragraph as subpara10 graph ‘‘(1)(A),’’;

11 (2) before the phrase ‘‘may seek contribution’’

12 by inserting the phrase ‘‘who is liable or potentially

13 liable under section 107(a) of this title’’;

14 (3) by striking out the phrase ‘‘during or fol15 lowing any civil action under section 106 of this title

16 or under section 107(a) of this title’’, and inserting

17 in lieu thereof the phrase ‘‘in a claim asserted under

18 section 107(a)’’; and

19 (4) by deleting the period at the end of the first

20 sentence, and inserting ‘‘except that there shall be

21 no right of contribution where—

22 ‘‘(i) the person asserting the right of con23 tribution has waived such rights in a settlement

24 pursuant to this Act;
71

S 1834 IS

1 ‘‘(ii) the person from whom contribution is

2 sought is liable solely under section 107(a)(3)

3 of this Act, and contributed less than ten

4 pounds or ten liters of material containing haz5 ardous substances at the facility, or such great6 er or lesser amount as the Administrator may

7 determine by regulation;

8 ‘‘(iii) the person from whom contribution is

9 sought has entered into a final settlement with

10 the United States pursuant to section 122(g).;

11 (5) before the phrase ‘‘this section and the Fed12 eral Rules’’ by inserting the phrase ‘‘section

13 107(a),’’; and

14 (6) by striking out the sentence ‘‘Nothing in

15 this subsection shall diminish the right of any per16 son to bring an action for contribution in the ab17 sence of a civil action under section 106 of this title

18 or section 107 of this title.’’.

19 (b) By inserting after subparagraph (1)(A) the fol20 lowing subparagraph—

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

22 contribution against a person who is not liable by

23 operation of subsection 107(a)(5) of this Act, or

24 against a person who is protected from suits in con25 tribution by this section or by a settlement with the
72

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1 United States, shall be liable to the person against

2 whom the claim of contribution is brought for all

3 reasonable costs of defending against the claim, in4 cluding all reasonable attorney’s and expert witness

5 fees.’’.

6 (c) Section 113(f) of the Act (42 U.S.C. 9613(f)) is

7 amended by striking out paragraph (2), and inserting the

8 following:

9 ‘‘(2) SETTLEMENT.—A person that has re10 solved its liability to the United States in an admin11 istrative or judicially approved settlement shall not

12 be liable for claims by other persons regarding re13 sponse actions, response costs or damages addressed

14 in the settlement. A person that has resolved its li15 ability to a State in an administrative or judicially

16 approved settlement shall not be liable for claims by

17 persons other than the United States regarding re18 sponse costs or damages addressed in the settlement

19 for which the State has a claim under this title.

20 Such settlement does not discharge any other poten21 tially responsible persons unless its terms so provide,

22 but it reduces the potential liability of such other

23 persons by the amount of the settlement. The pro24 tection afforded by this section shall include protec25 tion against contribution claims and all other types
73

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1 of claims, under Federal or State law, that may be

2 asserted against the settling party for recovery of re3 sponse costs or damages incurred or paid by another

4 person, if such costs or damages are addressed in

5 the settlement, but shall not include protection

6 against claims based on contractual indemnification

7 or other express contractual agreements to pay such

8 costs or damages.’’.

9 SEC. 407. SCOPE OF RULEMAKING AUTHORITY.

10 Section 115 of the Act (42 U.S.C. 9615), is amended

11 by redesignating the text of the section as subsection ‘‘(a)’’

12 and adding a new subsection:

13 ‘‘(b) The authority conferred by this section includes,

14 without limitation, authority to promulgate legislative reg15 ulations to define the terms and scope of sections 101

16 through 405 of this Act, inclusive.

17 ‘‘(c) This section confirms, without limitation, au18 thority to promulgate regulations to define the terms of

19 this Act as they apply to lenders and other financial serv20 ices providers, and property custodians, trustees, and

21 other fiduciaries.’’.

22 SEC. 408. ENHANCEMENT OF SETTLEMENT AUTHORITIES.

23 Section 122 of the Act (42 U.S.C. 9622), is amend24 ed—

25 (a) by striking out subparagraph (e)(3);
74

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1 (b) by redesignating subparagraphs (e) (4) and

2 (5) as subparagraphs (e) (3) and (4), respectively;

3 (c) by redesignating subparagraph (e)(6) as a

4 new section 122(o) and by amending redesignated

5 section 122(n)—

6 (1) by deleting ‘‘remedial investigation and

7 feasibility study’’ and inserting in lieu thereof

8 ‘‘response action’’; and

9 (2) by deleting ‘‘remedial action’’ in both

10 places where it appears and inserting ‘‘response

11 action’’;

12 (d) by inserting at the end of section 122 the

13 following—

14 ‘‘(p) RETENTION OF FUNDS.—If, as part of any

15 agreement under this Chapter, the President will be carry16 ing out any action and the parties will be paying amounts

17 to the President, the President may retain such amounts

18 in interest bearing accounts, and use such amounts, to19 gether with accrued interest, for purposes of carrying out

20 the agreement.

21 ‘‘(q) Notwithstanding the limitations on review in sec22 tion 113(h), and except as provided in subsection (g) of

23 this section, a person whose claim for response costs or

24 contribution is limited as a result of contribution protec25 tion afforded by an administrative settlement under this
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1 section may challenge the cost recovery component of such

2 settlement only by filing a complaint against the Adminis3 trator in the United States District Court within 60 days

4 after such settlement becomes final. Venue shall lie in the

5 district in which the appropriate Regional Administrator

6 has her principal office. Any review of an administrative

7 settlement shall be limited to the administrative record,

8 and the settlement shall be upheld unless the objecting

9 party can demonstrate on that record that the decision

10 of the President to enter into the administrative settle11 ment was arbitrary, capricious, or otherwise not in accord12 ance with law.’’.

13 (e) by deleting subsection (f)(1) and inserting

14 in lieu thereof:

15 ‘‘(1) FINAL COVENANTS.—The President shall

16 offer potentially responsible parties who enter into

17 settlement agreements otherwise acceptable to the

18 United States a final covenant not to sue concerning

19 any liability to the United States under this Act, in20 cluding a covenant with respect to future liability,

21 for response actions or response costs, provided

22 that—

23 ‘‘(A) the settling party agrees to perform,

24 or there are other adequate assurances of the

25 performance of, a final remedial action for the
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1 release or threat of release that is the subject

2 of the settlement;

3 ‘‘(B) The settlement agreement has been

4 reached prior to the commencement of litigation

5 against the settling party under section 106 or

6 107 of this Act with respect to this facility;

7 ‘‘(C) The settling party waives all contribu8 tion rights against other potentially responsible

9 parties at the facility; and

10 ‘‘(D) The settling party pays premium that

11 compensates for the risks of remedy failure; fu12 ture liability resulting from unknown condi13 tions; unanticipated increases in the cost of any

14 uncompleted response action, unless the settling

15 party is performing the response action; and

16 the United States’ litigation risk with respect to

17 persons who have not resolved their liability to

18 the United States under this Act, unless all

19 parties have settled their liability to the United

20 States, or the settlement covers 100 percent of

21 the United States’ response costs. The Presi22 dent shall have sole discretion to determine the

23 appropriate amount of any such premium, and

24 such determinations are committed to the

25 President’s discretion. The President has dis-
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1 cretion to waive or reduce the premium pay2 ment for persons who demonstrate an inability

3 to pay such a premium.

4 ‘‘(2) DISCRETIONARY COVENANTS.—For all

5 other settlements under this title, the President

6 may, in his discretion, provide any person with a

7 covenant not to sue concerning any liability to the

8 United States under this title, if the covenant not to

9 sue is in the public interest. The President may in10 clude any conditions in such covenant not to sue, in11 cluding but not limited to the additional condition

12 referred to in paragraph (5) of this subsection. In

13 determining whether such conditions or covenants

14 are in the public interest, the President shall con15 sider the effectiveness and reliability of the response

16 action, the nature of the risks remaining at the facil17 ity, the strength of evidence, the likelihood of cost

18 recovery, the reliability of any response action or ac19 tions to restore, replace or acquire the equivalent of

20 injured natural resources, and any other factors rel21 evant to the protection of human health, welfare,

22 and the environment.’’;

23 (f) by striking out the word ‘‘remedial’’, wher24 ever it appears in paragraph (f)(2), and inserting

25 the word ‘‘response’’;
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1 (g) by deleting paragraphs (f)(3) and (f)(4);

2 (h) by redesignating existing paragraphs (f)(2),

3 (f)(5) and (f)(6) as paragraphs (f)(3), (f)(4), and

4 (f)(5), respectively;

5 (i) in redesignated subparagraph (f)(5)(A)—

6 (1) by striking out the word ‘‘remedial’’,

7 and inserting in lieu thereof the word ‘‘re8 sponse’’;

9 (2) by deleting ‘‘paragraph (2)’’ in the

10 first clause of the first sentence and inserting

11 ‘‘paragraph (1) or (3)’’ in lieu thereof; and

12 (3) by deleting ‘‘de minimis settlements’’

13 and inserting ‘‘de minimis and other expedited

14 settlements pursuant to subsection (g) of this

15 section’’ in lieu thereof;

16 (4) by striking the phrase ‘‘the President

17 certifies under paragraph (3) that remedial ac18 tion has been completed at the facility con19 cerned’’, and inserting in lieu thereof the phrase

20 ‘‘that the response action that is the subject of

21 the settlement agreement is selected’’.

22 (j) by amending redesignated subsection

23 (f)(5)(B)—
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1 (1) by striking ‘‘In extraordinary cir2 cumstances, the’’ and inserting the word

3 ‘‘The’’;

4 (2) by striking the phrase ‘‘those referred

5 to in paragraph (4) and’’;

6 (3) by inserting ‘‘the agreement containing

7 the covenant not to sue provides for payment of

8 a premium to address possible remedy failure or

9 any releases that may result from unknown

10 conditions, and’’ before the phrase ‘‘the other

11 terms’’; and

12 (4) by inserting at the end the following

13 ‘‘The President may, in his discretion, waive or

14 reduce the premium payment for persons who

15 demonstrate an inability to pay such a pre16 mium.’’

17 (k) by deleting paragraph (g)(1)(A) and insert18 ing in lieu thereof:

19 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—

20 ‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET21 TLEMENT.—Wherever practicable and in the public

22 interest, and as provided in section 122a of this

23 title, the President will as promptly as possible offer

24 to reach a final administrative or judicial settlement

25 with potentially responsible parties who, in the judg-
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1 ment of the President, meet one or more of the fol2 lowing conditions for eligibility for an expedited set3 tlement:

4 ‘‘(A) the potentially responsible party’s in5 dividual contribution of hazardous substances

6 at the facility is de minimis. The contribution

7 of hazardous substance to a facility by a poten8 tially responsible party is de minimis if:

9 ‘‘(i) the potentially responsible party’s

10 volumetric contribution of materials con11 taining hazardous substances is minimal in

12 comparison to the total volumetric con13 tributions at the facility; such individual

14 contribution is presumed to be minimal if

15 it is one percent or less of the total volu16 metric contribution at the facility, unless

17 the Administrator identifies a different

18 threshold based on site-specific factors;

19 and

20 ‘‘(ii) the potentially responsible par21 ty’s hazardous substances do not present

22 toxic or other hazardous effects that are

23 significantly greater than those of other

24 hazardous substances at the facility; or’’
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1 (l) by inserting the following after subsection

2 (g)(1)(B):

3 ‘‘(C) The potentially responsible party’s li4 ability is based solely on subsection 107(a)(3)

5 or 107(a)(4) of this title, and the arrangement

6 for disposal, treatment, or transport for dis7 posal or treatment, or the acceptance for trans8 port for disposal or treatment, involved only

9 municipal solid waste (MSW) or sewage sludge

10 as defined in section 101(41) or 101(44), re11 spectively, of this Act. The Administrator may

12 offer to settle the liability of generators and

13 transporters of MSW or sewage sludge whose li14 ability is limited pursuant to section

15 107(a)(5)(A) of this title for up to 10 percent

16 of the total response costs at the facility; or

17 ‘‘(D) The potentially responsible party is a

18 small business or a municipality and has dem19 onstrated to the United States a limited ability

20 to pay response costs. For purposes of this pro21 vision—

22 ‘‘(i) In the case of a small business,

23 the President shall consider, to the extent

24 that information is provided by the small

25 business, the business’ ability to pay for its
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1 total allocated share, and demonstrable

2 constraints on its ability to raise revenues.

3 ‘‘(ii) In the case of a municipal owner

4 or operator, the President shall consider,

5 to the extent that information is provided

6 by the municipality, the following factors:

7 (1) the municipality’s general obligation

8 bond rating and information about the

9 most recent bond issue for which the rat10 ing was prepared; (2) the amount of total

11 available funds (other than dedicated

12 funds); (3) the amount of total operating

13 revenues (other than obligated or encum14 bered revenues); (4) the amount of total

15 expenses; (5) the amounts of total debt

16 and debt service; (6) per capita income;

17 and (7) real property values. A municipal18 ity may also submit for consideration by

19 the President an evaluation of the poten20 tial impact of the settlement on essential

21 services that the municipality must pro22 vide, and the feasibility of making delayed

23 payments or payments over time. If a mu24 nicipality asserts that it has additional en25 vironmental obligations besides its poten-
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1 tial liability under this Act, then the mu2 nicipality may create a list of the obliga3 tions, including an estimate of the costs of

4 complying with such obligations. A munici5 pality may establish an inability to pay

6 through an affirmative showing that such

7 payment of its liability under this Act

8 would either (I) create a substantial de9 monstrable risk that the municipality

10 would default on existing debt obligations,

11 be forced into bankruptcy, be forced to dis12 solve, or be forced to make budgetary cut13 backs that would substantially reduce cur14 rent levels of protection of public health

15 and safety, or (II) necessitate a violation of

16 legal requirements or limitations of general

17 applicability concerning the assumption

18 and maintenance of fiscal municipal obliga19 tions.’’.

20 (m) by deleting paragraphs (2) and (3) of sub21 section (g) and inserting in lieu thereof:

22 ‘‘(2) The determination of whether a party is

23 eligible for an expedited settlement shall be made on

24 the basis of information available to the President at

25 the time the settlement is negotiated. Such deter-
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1 mination, and the settlement, are committed to the

2 President’s unreviewable discretion. If the President

3 determines not to apply these provisions for expe4 dited settlements at a facility, the basis for that de5 termination must be explained in writing.

6 ‘‘(3) Additional factors relevant to municipali7 ties.—In any settlement with a municipality pursu8 ant to this title, the President may take additional

9 equitable factors into account in determining an ap10 propriate settlement amount, including, without limi11 tation, the limited resources available to that party,

12 and any in-kind services that the party may provide

13 to support the response action at the facility. In con14 sidering the value of in-kind services, the President

15 shall consider the fair market value of those serv16 ices.’’.

17 (n) by striking in paragraph (g)(4) ‘‘$500,000’’

18 and inserting ‘‘$2,000,000’’.

19 (o) by striking paragraph (g)(5) and redesig20 nating paragraph (g)(6) as (g)(5).

21 (p) by amending paragraph (h) by striking—

22 (1) the title, and inserting the phrase ‘‘Au23 thority to settle claims for penalties, punitive

24 damages and cost recovery’’; and
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1 (2) by striking out the phrase ‘‘settlement

2 authority’’.

3 (q) by amending paragraph (h)(1)—

4 (1) before the phrase ‘‘costs incurred’’ by

5 inserting the phrase ‘‘past and future’’;

6 (2) before the phrase ‘‘by the United

7 States Government’’ by inserting the phrase ‘‘or

8 that may be incurred’’;

9 (3) by inserting after the phrase ‘‘if the

10 claim has not been referred to the Department

11 of Justice for further action’’, the following:

12 ‘‘The head of any department or agency with

13 the authority to seek, or to request the Attor14 ney General to seek, civil or punitive damages

15 under this Act may settle claims for any such

16 penalties or damages which may otherwise be

17 assessed in civil administrative or judicial pro18 ceedings’’; and by striking out ‘‘$500,000’’, and

19 inserting in lieu thereof ‘‘$2,000,000’’.

20 (r) by striking paragraph (h)(4).

21 SEC. 409. ALLOCATION PROCEDURES.

22 The Act is amended by inserting following section

23 122:

24 ‘‘SEC. 122a ALLOCATION AT MULTI-PARTY FACILITIES.

25 ‘‘(a) SCOPE.—
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1 ‘‘(1) Except as provided in paragraph (3) of

2 this section, for each non-federally owned facility

3 listed on the National Priorities List involving two

4 or more potentially responsible parties, the Adminis5 trator shall—

6 ‘‘(A) initiate the allocation process estab7 lished under this section for any remedial action

8 selected by the President after the date of en9 actment of the Superfund Reform Act of 1994,

10 and

11 ‘‘(B) initiate the allocation process estab12 lished in subsections (c)(2) through (d)(3) of

13 this section for any remedial action selected by

14 the President prior to the date of enactment of

15 the Superfund Reform Act of 1994, when re16 quested by any potentially responsible party

17 who has resolved its liability to the United

18 States with respect to the remedial action or is

19 performing the remedial action pursuant to an

20 order issued under section 106(a) of this title,

21 to assist in allocating shares among potentially

22 responsible parties. The allocation performed

23 pursuant to this subsection shall not be con24 strued to require—
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1 ‘‘(i) payment of an orphan share pur2 suant to subsection (e) of this section; or

3 ‘‘(ii) the conferral of reimbursement

4 rights pursuant to subsection (h) of this

5 section.

6 ‘‘(2) Except as provided in paragraph (3) of

7 this section, the Administrator may initiate the allo8 cation process established under this section with re9 spect to any other facility involving two or more po10 tentially responsible parties, as the Administrator

11 deems appropriate.

12 ‘‘(3) The allocation process established under

13 this section shall not apply to any facility where—

14 ‘‘(i) there has been a final settlement, de15 cree or order that determines all liability or al16 located shares of all potentially responsible par17 ties with respect to the facility; or

18 ‘‘(ii) where response action is being carried

19 out by a State pursuant to referral or author20 ization under section 104(k) of this title.

21 ‘‘(4) Nothing in this section limits or affects—

22 ‘‘(A) the Administrator’s obligation to per23 form an allocation for facilities that have been

24 the subject of partial or expedited settlements;
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1 ‘‘(B) the ability of a potentially responsible

2 party at a facility to resolve its liability to the

3 United States or other parties at any time be4 fore initiation or completion of the allocation

5 process; or

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

7 merits of any judicial or administrative order,

8 judgment or decree issued, signed, lodged, or

9 entered with respect to liability under this Act,

10 or authorizes modification of any such order,

11 judgment or decree.

12 ‘‘(b) MORATORIUM ON COMMENCEMENT OR CON13 TINUATION OF SUITS.—

14 ‘‘(1) No person may commence an action pursu15 ant to section 107 of this Act regarding a response

16 action for which an allocation must be performed

17 under subsection (a)(1)(A) of this section, or for

18 which the Administrator has initiated an allocation

19 under subsection (a)(1)(B) or (a)(2) of this section,

20 until 60 days after issuance of the allocator’s report

21 under subsection (d)(1) of this section.

22 ‘‘(2) If an action under section 107 of this Act

23 regarding a response for which an allocation is to be

24 performed under this section is pending (A) upon

25 date of enactment of the Superfund Reform Act of
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1 1994, or (B) upon initiation of an allocation under

2 subsection (a)(1)(B) or (a)(2) of this section, the ac3 tion shall be stayed until 60 days after the issuance

4 of an allocator’s report, unless the court determines

5 that a stay will not result in a just and expeditious

6 resolution of the action.

7 ‘‘(3) Any applicable limitations period with re8 spect to actions subject to paragraph (1) shall be

9 tolled from the earlier of—

10 ‘‘(A) the date of listing of the facility on

11 the National Priorities list; or

12 ‘‘(B) the commencement of the allocation

13 process pursuant to this section, until 120 days

14 after the allocation report required by this sec15 tion has been provided to the parties to the al16 location.

17 ‘‘(4) Nothing in this section shall in any way

18 limit or affect the President’s authority to exercise

19 the powers conferred by sections 103, 104, 105,

20 106, or 122 of this title, or to commence an action

21 where there is a contemporaneous filing of a judicial

22 consent decree resolving a party’s liability; or to file

23 a proof of claim or take other action in a proceeding

24 under title 11 of the United States Code.
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1 ‘‘(5) The procedures established in this section

2 are intended to guide the exercise of settlement au3 thority by the United States, and shall not be con4 strued to diminish or affect the principles of retro5 active, strict, joint and several liability under this

6 title.

7 ‘‘(c) COMMENCEMENT OF ALLOCATION.—

8 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa9 cilities subject to this section, the Administrator

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

11 days after the earlier of the commencement of the

12 remedial investigation or the listing of the facility on

13 the National Priorities List, initiate a search for po14 tentially responsible parties, using its authorities

15 under section 104 of this title.

16 ‘‘(2) NOTICE TO PARTIES.—As soon as prac17 ticable after receipt of sufficient information, but

18 not more than eighteen months after commencement

19 of the remedial investigation, the Administrator

20 shall—

21 ‘‘(A) notify those potentially responsible

22 parties who will be assigned shares in the allo23 cation process and notify the public, in accord24 ance with section 117(d) of this title, of the list

25 of potentially responsible parties preliminarily
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1 identified by the Administrator to be assigned

2 shares in the allocation process; and

3 ‘‘(B) provide the notified potentially re4 sponsible parties with a list of neutral parties

5 who are not employees of the United States and

6 who the Administrator determines, in his or her

7 sole discretion, are qualified to perform an allo8 cation at the facility.

9 ‘‘(3) SELECTION OF ALLOCATOR.—The Admin10 istrator shall thereafter—

11 ‘‘(A) acknowledge the parties’ selection of

12 an allocator from the list, or select an allocator

13 from the list provided to the parties if the par14 ties cannot agree on a selection within 30 days

15 of the notice;

16 ‘‘(B) contract with the selected allocator

17 for the provision of allocation services; and

18 ‘‘(C) make available all responses to infor19 mation requests, as well as other relevant infor20 mation concerning the facility and potentially

21 responsible parties, to the parties and to the al22 locator within 30 days of the appointment of

23 the allocator. The Administrator shall not make

24 available any privileged or confidential informa25 tion, except as otherwise authorized by law.
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1 ‘‘(4) PROPOSED ADDITION OF PARTIES.—

2 ‘‘(A) For 60 days after information has

3 been made available pursuant to paragraph

4 3(C), the parties identified by the Adminis5 trator and members of the affected community

6 shall have the opportunity to identify and pro7 pose additional potentially responsible parties or

8 otherwise provide information relevant to the

9 facility or such potentially responsible parties.

10 This period may be extended by the Adminis11 trator for an additional 30 days upon request of

12 a party.

13 ‘‘(B) Within 30 days after the end of the

14 period specified in paragraph (A) for identifica15 tion of additional parties, the Administrator

16 shall issue a final list of parties subject to the

17 allocation process, hereinafter the ‘‘allocation

18 parties’’. The Administrator shall include in the

19 list of allocation parties those parties identified

20 pursuant to paragraph (A) in the allocation

21 process unless the Administrator determines

22 and explains in writing that there is not a suffi23 cient basis in law or fact to take enforcement

24 action with respect to those parties under this

25 title, or that they have entered into an expe-
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1 dited settlement under section 122(g). The Ad2 ministrator’s determination is to be based on

3 the information available at the time of the de4 termination and is committed to the Adminis5 trator’s unreviewable discretion.

6 ‘‘(5) ROLE OF FEDERAL AGENCIES.—Federal

7 departments, agencies or instrumentalities that are

8 identified as potentially responsible parties shall be

9 subject to, and be entitled to the benefits of, the al10 location process provided by this section to the same

11 extent as any other party.

12 ‘‘(6) REPRESENTATION OF THE UNITED

13 STATES.—The Administrator and the Attorney Gen14 eral shall be entitled to review all documents and

15 participate in any phase of the allocation proceeding.

16 ‘‘(d) ALLOCATION DETERMINATION.—

17 ‘‘(1) SETTLEMENT AND ALLOCATION RE18 PORT.—Following issuance of the list of allocation

19 parties, the allocator may convene the allocation par20 ties for the purpose of facilitating agreement con21 cerning their shares. If the allocation parties do not

22 agree to a negotiated allocation of shares, the allo23 cator shall prepare a written report, with a

24 nonbinding, equitable allocation of percentage shares
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1 for the facility, and provide such report to the allo2 cation parties and the Administrator.

3 ‘‘(2) INFORMATION REQUESTS.—To assist in

4 the allocation of shares, the allocator may request

5 information from the allocation parties, and may

6 make additional requests for information at the re7 quest of any allocation party. The allocator may re8 quest the Administrator to exercise any information9 gathering authority under this title where necessary

10 to assist in determining the allocation of shares.

11 ‘‘(3) FACTORS IN THE ALLOCATION.—Unless

12 the allocation parties agree to a negotiated alloca13 tion, the allocator shall prepare a nonbinding, equi14 table allocation of percentage shares for the facility

15 based on the following factors:

16 ‘‘(A) the amount of hazardous substances

17 contributed by each allocation party;

18 ‘‘(B) the degree of toxicity of hazardous

19 substances contributed by each allocation party;

20 ‘‘(C) the mobility of hazardous substances

21 contributed by each allocation party;

22 ‘‘(D) the degree of involvement of each al23 location party in the generation, transportation,

24 treatment, storage, or disposal of the hazardous

25 substance;
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1 ‘‘(E) the degree of care exercised by each

2 allocation party with respect to the hazardous

3 substance, taking into account the characteris4 tics of the hazardous substance;

5 ‘‘(F) the cooperation of each allocation

6 party in contributing to the response action and

7 in providing complete and timely information

8 during the allocation process; and

9 ‘‘(G) such other factors that the Adminis10 trator determines are appropriate by published

11 regulation or guidance, including guidance with

12 respect to the identification of orphan shares

13 pursuant to paragraph (3) of this subsection

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

15 The allocator may determine that a percentage share

16 for the facility is specifically attributable to an ‘‘or17 phan share’’. The orphan share may only consist of

18 the following:

19 ‘‘(A) shares attributable to hazardous sub20 stances that the allocator determines, on the

21 basis of information presented, to be specifically

22 attributable to identified but insolvent or de23 funct responsible parties who are not affiliated

24 with any allocation party;
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1 ‘‘(B) the difference between the aggregate

2 shares that the allocator determines, on the

3 basis of the information presented, are specifi4 cally attributable to contributors of municipal

5 solid waste subject to the limitations in section

6 107(a)(5)(D) of this title, and the share actu7 ally assumed by those parties in any settle8 ments with the United States pursuant to sub9 section 122(g) of this title, including the fair

10 market value of in-kind services provided by a

11 municipality; and

12 ‘‘(C) the difference between the aggregate

13 share that the allocator determines, on the

14 basis of information presented, is specifically

15 attributable to parties with a limited ability to

16 pay response costs and the share actually as17 sumed by those parties in any settlements with

18 the United States pursuant to subsection

19 122(b) of this title.

20 The orphan share shall not include shares attrib21 utable to hazardous substances that the allocator

22 cannot attribute to any identified party. Such shares

23 shall be distributed among the allocation parties.

24 ‘‘(e) FUNDING OF ORPHAN SHARES.—From funds

25 available in the Fund in any given fiscal year, and without
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1 further appropriation action, the President shall make re2 imbursements from the Fund, to eligible parties for costs

3 incurred and equitably attributable to orphan shares de4 termined pursuant to this section, provided that Fund fi5 nancing of orphan shares shall not exceed $300,000,000

6 in any fiscal year. Reimbursements made under this sub7 section shall be subject to such terms and conditions as

8 the President may prescribe.

9 ‘‘(f) TIMING.—The allocator shall provide the report

10 required by subsection (d)(1) of this section to the alloca11 tion parties and the Administrator within 180 days of the

12 issuance of the list of parties pursuant to subsection

13 (c)(4)(B) of this section. Upon request, for good cause

14 shown, the Administrator may grant the allocator addi15 tional time to complete the allocation, not to exceed 90

16 days.

17 ‘‘(g) SETTLEMENT FOLLOWING ALLOCATION.—

18 ‘‘(1) OBLIGATIONS OF THE UNITED STATES.—

19 The President will accept a timely offer of settle20 ment from a party based on the share determined by

21 the allocator, if it includes appropriate premia and

22 other terms and conditions of settlement, unless the

23 Administrator, with the concurrence of the Attorney

24 General of the United States, determines that a set25 tlement based on the allocator’s determinations
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1 would not be fair, reasonable, and in the public in2 terest. The Administrator and the Attorney General

3 shall seek to make any such determination within 60

4 days from the date of issuance of the allocator’s re5 port. The determinations of the Administrator and

6 the Attorney General shall not be judicially

7 reviewable.

8 ‘‘(2) If the Administrator and the Attorney

9 General determine not to settle on the basis of the

10 allocation, they shall provide the allocation parties

11 and members of the affected community with a writ12 ten explanation of the Administrator’s determina13 tion. If the Administrator and the Attorney General

14 make such a determination, the parties who are will15 ing to settle on the basis of the allocation are enti16 tled to a consultation with an official appointed by

17 the President, to present any objections to the deter18 mination, within 60 days after the determination.

19 ‘‘(3) Settlements based on allocated shares shall

20 include—

21 ‘‘(A) a waiver of contribution rights

22 against all parties who are potentially respon23 sible parties for the response action;

24 ‘‘(B) covenants not to sue, consistent with

25 the provisions of section 122(f) of this title, and
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1 provisions regarding performance or adequate

2 assurance of performance of response actions

3 addressed in the settlement;

4 ‘‘(C) a premium that compensates for the

5 United States’ litigation risk with respect to po6 tentially responsible parties who have not re7 solved their liability to the United States, ex8 cept that no such premium shall apply if all

9 parties settle or the settlement covers one 100

10 percent of response costs;

11 ‘‘(D) contribution protection, consistent

12 with sections 113(f) and 122(g) of this title, re13 garding matters addressed in the settlement.

14 Such settlement does not discharge any of the

15 other potentially responsible parties unless its

16 terms so provide, but it reduces the potential li17 ability of the others by the amount of the settle18 ment; and

19 ‘‘(E) provisions through which the settling

20 parties shall receive reimbursement from the

21 Fund for any response costs incurred by such

22 parties in excess of the aggregate of their allo23 cated share and any premia required by the set24 tlement. Such right to reimbursement shall not

25 be contingent on the United States’ recovery of
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1 response costs from any responsible person not

2 a party to any settlement with the United

3 States.

4 ‘‘(4) The President shall report annually to

5 Congress on the administration of the allocation

6 scheme, and provide information comparing alloca7 tion results with actual settlements at multiparty fa8 cilities.

9 ‘‘(5) The provisions of this section shall not

10 apply to any offer of settlement made after com11 mencement of litigation by the United States against

12 the offering party under section 107 of this title.

13 ‘‘(h) AUTHORIZATION OF REIMBURSEMENT.—In any

14 settlement in which a party agrees to perform response

15 work in excess of its share, the Administrator shall have

16 authority in entering the settlement to confer a right of

17 reimbursement on the settling party pursuant to such pro18 cedures as the Administrator may prescribe.

19 ‘‘(i) POST-SETTLEMENT LITIGATION.—

20 ‘‘(1) IN GENERAL.—The United States may

21 commence an action under section 107 against any

22 person who has not resolved its liability to the Unit23 ed States following allocation, on or after 60 days

24 following issuance of the allocator’s report. In any

25 such action, the potentially responsible parties shall
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1 be liable for all unrecovered response costs, including

2 any federally-funded orphan share identified in ac3 cordance with subsection (d)(4). Defendants in any

4 such action may implead any allocation party who

5 did not resolve its liability to the United States. The

6 Administrator and the Attorney General shall issue

7 guidelines to ensure that the relief sought against de

8 minimis parties under principles of joint and several

9 liability will not be grossly disproportionate to their

10 contribution to the facility. The application of such

11 guidelines is committed to the discretion of the Ad12 ministrator and the Attorney General.

13 ‘‘(2) In commencing any action under section

14 107 following allocation, the Attorney General must

15 certify, in the complaint, that the United States has

16 been unable to reach a settlement that would be in

17 the best interests of the United States.

18 ‘‘(3) ADMISSIBILITY OF ALLOCATOR’S RE19 PORT.—The allocator’s report shall not be admissi20 ble in any court with respect to a claim brought by

21 or against the United States, except in its capacity

22 as a nonsettling potentially responsible party, or for

23 the determination of liability. The allocator’s report,

24 subject to the rules and discretion of the court, may

25 be admissible solely for the purpose of assisting the
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1 court in making an equitable allocation of response

2 costs among the relative shares of nonsettling liable

3 parties.

4 ‘‘(4) OTHER AUTHORITIES UNAFFECTED.—

5 Nothing in this section limits or in any way affects

6 the exercise of the President’s authority pursuant to

7 sections 103, 104, 105, or 106.

8 ‘‘(5) COSTS.—

9 ‘‘(A) The costs of implementing the alloca10 tion procedure set forth in this section, includ11 ing reasonable fees and expenses of the allo12 cator, shall be considered necessary costs of re13 sponse.

14 ‘‘(B) The costs attributable to any funding

15 of orphan shares identified by the allocator pur16 suant to subsection (d)(4) also shall be consid17 ered necessary costs of response, and shall be

18 recoverable from liable parties who do not re19 solve their liability on the basis of the alloca20 tion.

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

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

23 if the United States has rejected an offer of settle24 ment that is consistent with subsections (g)(1) and

25 (g)(3) of this section and was presented to the Unit-
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1 ed States prior to the commencement of the action,

2 the offeror shall be entitled to recover from the

3 United States the offeror’s reasonable costs of de4 fending the action after the making of the offer, in5 cluding reasonable attorneys’ fees, if the ultimate

6 resolution of liability or allocation of costs with re7 spect to the offeror, taking into account all settle8 ments and reimbursements with respect to the facil9 ity other than those attributable to insurance or in10 demnification, is as or more favorable to the offeror

11 than the offer based on the allocation.

12 ‘‘(j) PROCEDURES.—The Administrator shall further

13 define the procedures of this section by regulation or guid14 ance, after consultation with the Attorney General.’’.

15 TITLE V—REMEDY SELECTION AND

16 CLEANUP STANDARDS

17 SEC. 501. PURPOSES AND OBJECTIVES.

18 The purposes and objectives of this title are to—

19 (a) ensure that remedial actions under the Act

20 are protective of human health and the environment;

21 (b) provide consistent and equivalent protection

22 to all communities affected by facilities subject to re23 medial action; and,

24 (c) ensure that the national goals, national ge25 neric cleanup levels, and the national risk protocol
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1 required by this title are developed through a proc2 ess based on substantial public input and, where ap3 propriate, on consensual decisionmaking.

4 SEC. 502. CLEANUP STANDARDS AND LEVELS.

5 Section 121(d)(1)–(2)(C)(i) of the Act (42 U.S.C.

6 9621(d)) is amended to read as follows:

7 ‘‘(d) DEGREE OF CLEANUP.—

8 ‘‘(1) PROTECTION OF HUMAN HEALTH AND

9 THE ENVIRONMENT.—A remedial action selected

10 under this section or otherwise required or agreed to

11 by the President under this Act shall be protective

12 of human health and the environment. In order to

13 provide consistent protection to all communities, the

14 Administrator shall promulgate national goals to be

15 applied at all facilities subject to remedial action

16 under this Act.

17 ‘‘(2) GENERIC CLEANUP LEVELS.—The Admin18 istrator shall promulgate, as appropriate, national

19 generic cleanup levels for specific hazardous sub20 stances, pollutants, or contaminants, based on the

21 national goals established in paragraph (1). A clean22 up level shall—

23 ‘‘(A) reflect reasonably anticipated future

24 land uses,
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1 ‘‘(B) reflect other variables which can be

2 easily measured at a facility and whose effects

3 are scientifically well-understood to vary on a

4 site-specific basis, and

5 ‘‘(C) represent concentration levels below

6 which a response action is not required.

7 ‘‘(3) SITE-SPECIFIC METHODS TO ESTABLISH

8 CLEANUP LEVELS.—Notwithstanding the promulga9 tion of national generic cleanup levels under sub10 section (d)(2) and nationally-approved generic rem11 edies under subsection (b)(4) of this section, the Ad12 ministrator may, as appropriate, rely on a site-spe13 cific risk assessment to determine the proper level of

14 cleanup at a facility, based on the national goals es15 tablished in paragraph (1) and the reasonably antici16 pated future land uses at the facility. This may

17 occur if a national generic cleanup level has not been

18 developed or to account for particular characteristics

19 of a facility or its surroundings. In establishing site20 specific cleanup levels, the President shall consider

21 the views of the affected community in accordance

22 with section 117 of this Act.

23 ‘‘(4) RISK ASSESSMENT.—The Administrator

24 shall promulgate a national risk protocol for con25 ducting risk assessments based on realistic assump-
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1 tions. After promulgation, risk assessments underly2 ing the degree of cleanup and remedy selection proc3 esses shall use the national risk protocol.

4 ‘‘(5) FEDERAL AND STATE LAWS.—

5 ‘‘(A) A remedial action shall be required to

6 comply with the substantive requirements of—

7 ‘‘(i) any standard, requirement, cri8 terion, or limitation under any federal en9 vironmental or facility siting law that the

10 President determines is suitable for appli11 cation to the remedial action at the facil12 ity; and

13 ‘‘(ii) any promulgated standard, re14 quirement, criterion, or limitation under

15 any state environmental law specifically

16 addressing remedial action that is adopted

17 for the purpose of protecting human health

18 or the environment with the best available

19 scientific evidence through a public process

20 where such a law is more stringent than

21 any such federal cleanup standard, require22 ment, criterion, or limitation, or the clean23 up level determined in accordance with the

24 requirements of this section.
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1 ‘‘(B) Procedural requirements of federal

2 and state standards, requirements, criteria, or

3 limitations, including but not limited to permit4 ting requirements, shall not apply to response

5 actions conducted on-site. In addition, compli6 ance with such laws shall not be required with

7 respect to return, replacement, or redisposal of

8 contaminated media or residuals of contami9 nated media into the same medium in or very

10 near existing areas of contamination on-site.

11 ‘‘(C) The President may select a remedial

12 action meeting the requirements of paragraph

13 (1) that does not attain a level or standard of

14 control at least equivalent to the federal or

15 State standards, requirements, criteria, or limi16 tations as required by paragraph (A), if the

17 President finds that—

18 ‘‘(i) the remedial action selected is

19 only part of a total remedial action that

20 will attain such level or standard of control

21 when completed;

22 ‘‘(ii) compliance with such require23 ment at that facility will result in greater

24 risk to human health and the environment

25 than alternative options;
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1 ‘‘(iii) compliance with such require2 ments is technically impracticable from an

3 engineering perspective;

4 ‘‘(iv) a generic remedy under section

5 (b)(4) has been selected for the facility;

6 ‘‘(v) the remedial action selected will

7 attain a standard of performance that is

8 equivalent to that required under the

9 standard, requirement, criterion, or limita10 tion identified under (A)(i) and (A)(ii)

11 through use of another approach;

12 ‘‘(vi) with respect to a State standard,

13 requirement, criterion, or limitation, the

14 State has not consistently applied (or dem15 onstrated the intention to consistently

16 apply) the standard, requirement, criterion,

17 or limitation in similar circumstances at

18 other remedial actions within the State; or

19 ‘‘(vii) in the case of a remedial action

20 to be undertaken solely under section 104

21 using the Fund, a selection of a remedial

22 action that attains such level or standard

23 of control will not provide a balance be24 tween the need for protection of public

25 health and welfare and the environment at
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1 the facility under consideration, and the

2 availability of amounts from the Fund to

3 respond to other facilities which present or

4 may present a threat to public health or

5 welfare or the environment, taking into

6 consideration the relative immediacy of

7 such threat.

8 The President shall publish such findings, to9 gether with an explanation and appropriate doc10 umentation.’’.

11 SEC. 503. REMEDY SELECTION.

12 Section 121(b) of the Act (42 U.S.C. 9621(b) is

13 amended to read as follows:

14 ‘‘(b) GENERAL RULES.—

15 ‘‘(1) SELECTION OF PROTECTIVE REMEDIES.—

16 Remedies selected at individual facilities shall be

17 protective of human health and the environment.

18 Whether a response action requires remediation

19 through treatment, containment, a combination of

20 treatment and containment, or other means, shall be

21 determined through the evaluation of remedial alter22 natives.

23 ‘‘(2) LAND USE.—In selecting a remedy, the

24 President shall take into account the reasonably an-
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1 ticipated future uses of land at a facility as required

2 by this Act.

3 ‘‘(3) APPROPRIATE REMEDIAL ACTION.—

4 ‘‘(A) The President shall identify and se5 lect an appropriate remedy utilizing treatment,

6 containment, other remedial measures, or any

7 combination thereof, that is protective of

8 human health and the environment and

9 achieves the degree of cleanup determined

10 under section 121(d), taking into account the

11 following factors—

12 ‘‘(i) the effectiveness of the remedy;

13 ‘‘(ii) the long-term reliability of the

14 remedy, that is, its capability to achieve

15 long-term protection of human health and

16 the environment;

17 ‘‘(iii) any risk posed by the remedy to

18 the affected community, to those engaged

19 in the cleanup effort, and to the environ20 ment;

21 ‘‘(iv) the acceptability of the remedy

22 to the affected community; and

23 ‘‘(v) the reasonableness of the cost of

24 the remedy in relation to the preceding

25 factors (i) and (iv).
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1 ‘‘(B) INNOVATIVE REMEDIES.—If an oth2 erwise appropriate treatment remedy is avail3 able only at a disproportionate cost and the

4 President determines that an appropriate treat5 ment remedy is likely to become available with6 in a reasonable period of time, the President

7 may select an interim containment remedy. A

8 selected interim containment remedy shall in9 clude adequate monitoring to ensure the contin10 ued integrity of the containment system. If an

11 appropriate treatment remedy becomes available

12 within that period of time, that remedy shall be

13 required.

14 ‘‘(C) HOT SPOTS.—In evaluating a facility

15 for a permanent containment remedy, if the

16 President determines, based on standard site

17 investigation, that a discrete area within a facil18 ity is a ‘‘hot spot’’ (as defined in this para19 graph), the President shall select a remedy for

20 the hot spot with a preference for treatment,

21 unless he determines, based on treatability

22 studies and other information, that no treat23 ment technology exists or such technology is

24 only available at a disproportionate cost. In

25 such instances, the President shall select an in-
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1 terim containment remedy for a hot spot sub2 ject to adequate monitoring to ensure its con3 tinued integrity and shall review the interim

4 containment remedy within five years to deter5 mine whether an appropriate treatment remedy

6 for the hot spot is available. For purposes of

7 this paragraph, the term ‘‘hot spot’’ means a

8 discrete area within a facility that contains haz9 ardous substances that are highly toxic or high10 ly mobile, cannot be reliably contained, and

11 present a significant risk to human health or

12 the environment should exposure occur.

13 ‘‘(4) GENERIC REMEDIES.—In order to stream14 line the remedy selection process, and to facilitate

15 rapid voluntary action, the President shall establish,

16 taking into account the factors enumerated in sub17 section (b)(3)(A), cost-effective generic remedies for

18 categories of facilities, and expedited procedures that

19 include community involvement for selecting generic

20 remedies at an individual facility. To be eligible for

21 selection at a facility, a generic remedy shall be pro22 tective of human health and the environment at that

23 facility. When appropriate, the President may select

24 a generic remedy without considering alternative

25 remedies.’’.
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1 SEC. 504. MISCELLANEOUS AMENDMENTS TO SECTION 121.

2 (a) Section 121(c) of the Act (42 U.S.C. 9621(c))

3 is amended by striking out the word ‘‘initiation’’, and in4 serting in lieu thereof the phrase ‘‘completion of all phys5 ical on-site construction’’.

6 (b) Section 121(d) of the Act is further amended

7 by—

8 (1) redesignating paragraph (2)(C)(ii) as para9 graph ‘‘(6)(A)’’;

10 (2) redesignating paragraph (2)(C)(iii) as para11 graph ‘‘(6)(B)’’;

12 (3) striking ‘‘clauses (iii) and (iv)’’ in redesig13 nated paragraph (6)(A) and inserting ‘‘subpara14 graph (B)’’;

15 (4) striking paragraph (2)(C)(iv);

16 (5) redesignating paragraph (3) as paragraph

17 ‘‘(7)’’ and amending it to read as follows:

18 ‘‘(7) In the case of any removal or remedial action

19 involving the transfer of any hazardous substance or pol20 lutant or contaminant off-site, such hazardous substance

21 or pollutant or contaminant and shall be transferred to

22 a facility which is authorized under applicable Federal and

23 State law to receive such hazardous substance or pollutant

24 or contaminant and is in compliance with such applicable

25 Federal and State law. Such substance or pollutant or

26 contaminant may be transferred to a land disposal facility
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1 permitted under subtitle C of the Solid Waste Disposal

2 Act only if the President determines that both of the fol3 lowing requirements are met:

4 ‘‘(A) The unit to which the hazardous sub5 stance or pollutant or contaminant is transferred is

6 not releasing any hazardous waste, or constituent

7 thereof, into the groundwater or surface water or

8 soil.

9 ‘‘(B) All such releases from other units at the

10 facility are being controlled by a corrective action

11 program approved by the Administrator under sub12 title C of the Solid Waste Disposal Act.

13 The President shall notify the owner or operator of such

14 facility of determinations made under this paragraph.’’;

15 and

16 (6) striking paragraph (4).

17 (c) Section 121(e) of the Act (42 U.S.C. 9621(e)) is

18 amended by—

19 (1) in paragraph (1) inserting in the first sen20 tence ‘‘or permit application’’ before ‘‘shall be re21 quired’’; and by adding at the end thereof the follow22 ing: ‘‘Furthermore, no Federal, State or local permit

23 or permit application shall be required for one-site

24 or off-site activities conducted under section

25 311(b),’’; and
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1 (2) striking paragraph (2).

2 (d) Section 121(f) of the Act (42 U.S.C. 9621(f)) is

3 amended by adding after paragraph (3) (as amended by

4 this Act) the following new paragraph:

5 ‘‘(4) A State may enforce only those Federal or State

6 legally applicable standards, requirements, criterion, or

7 limitations to which the Administrator has determined the

8 remedial action is required to conform under this Act.

9 Where the parties agree, the consent decree may provide

10 for administrative enforcement. Each consent decree shall

11 also contain stipulated penalties for violations of the de12 cree in an amount not to exceed $25,000 per day. Such

13 stipulated penalties shall not be construed to impair or

14 affect the authority of the court to order compliance with

15 the specific terms of any such decree.’’.

16 SEC. 505. RESPONSE AUTHORITIES.

17 (a) Section 104(b)(1) of the Act (42 U.S.C.

18 9604(b)(1)) is amended by—

19 (1) inserting ‘‘actions,’’ before ‘‘studies’’;

20 (2) striking ‘‘, to recover the costs thereof, and’’

21 and inserting ‘‘or’’; and

22 (3) striking the ‘‘.’’ after ‘‘Act’’ and inserting

23 ‘‘and shall be entitled to recover the costs thereof.’’.

24 (b) Section 104(j) of the Act (42 U.S.C. 9604(j)) is

25 amended by—
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1 (1) in paragraph (1) by striking ‘‘remedial’’,

2 and inserting ‘‘response’’;

3 (2) striking paragraph (2);

4 (3) redesignating paragraph (3) as paragraph

5 ‘‘(2)’’ and striking ‘‘estate’’ and inserting ‘‘prop6 erty’’; and

7 (4) by inserting after paragraph (2) (as redesig8 nated by this Act) the following new paragraph:

9 ‘‘(4) DISPOSAL AUTHORITY.—The President is au10 thorized to dispose of any interest in real property ac11 quired for use by the Administrator under this subsection

12 by sale, exchange, donation or otherwise and any such in13 terest in real property shall not be subject to any of the

14 provisions of section 120 except the notice provisions of

15 section 120(h)(1). Any moneys received by the President

16 pursuant to this subparagraph shall be deposited in the

17 Fund.’’.

18 SEC. 506. REMOVAL ACTIONS.

19 (a) Section 104(c)(1) of the Act is amended in sub20 paragraph (C) as follows:

21 (1) strike ‘‘$2,000,000’’ and insert

22 ‘‘$6,000,000’’;

23 (2) strike ‘‘12 months’’ and insert ‘‘three

24 years’’; and
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1 (3) strike ‘‘consistent with the remedial action

2 to be taken’’ and insert ‘‘not inconsistent with any

3 remedial action that has been selected or is antici4 pated at the time of the removal action.’’;

5 (b) Section 117 of the Act is amended by adding after

6 subsection (k) (as added by this Act) the following new

7 subsection:

8 ‘‘(1) REMOVAL ACTIONS.—Whenever the planning

9 period for a removal action is expected to be greater than

10 six months, the Administrator shall provide the commu11 nity with notice of the anticipated removal action and a

12 public comment period of no less than thirty days.’’.

13 SEC. 507. TRANSITION.

14 The provisions of this title shall become effective on

15 the date of enactment of this Act and shall apply to all

16 response actions for which a Record of Decision or other

17 decision document is signed after the date of enactment

18 of the Act.

19 TITLE VI—MISCELLANEOUS

20 SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNER21 SHIP AND MIXED RESPONSIBILITY FACILI22 TIES.

23 Section 120(e) of the Act (42 U.S.C. 9620(e)) is

24 amended by—
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1 (a) inserting after paragraph (3) the following

2 new paragraph:

3 ‘‘(4) A provision allowing for the participation

4 of other responsible parties in the response action.;

5 and

6 (b) inserting after paragraph (6) the following

7 new paragraphs:

8 ‘‘(7) EXCEPTION TO REQUIRED ACTION.—No

9 department, agency, and instrumentality of the

10 United States that owns or operates a facility over

11 which the department, agency, or instrumentality ex12 ercised no regulatory or other control over activities

13 that directly or indirectly resulted in a release or

14 threat of a release of a hazardous substance shall be

15 subject to the requirements of paragraphs (1)

16 through (6) except (5)(F) and (G) of this subsection

17 if the department, agency, or instrumentality dem18 onstrates to the satisfaction of the Administrator

19 that—

20 ‘‘(A) no department, agency, or instrumen21 tality was the primary or sole source or cause

22 of a release or threat of release of a hazardous

23 substance at the facility;

24 ‘‘(B) the activities either directly or indi25 rectly resulting in a release or threat of a re-
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1 lease of a hazardous substance at the facility

2 were pursuant to a statutory authority and oc3 curred prior to 1976; and

4 ‘‘(C) the person or persons primarily or

5 solely responsible for such release or threat of

6 release are financially viable, and capable of

7 performing or financing the response action at

8 the facility.

9 In the event the above conditions are not met, the

10 applicable terms of section 120(e) apply to the de11 partment, agency, or instrumentality of the United

12 States at the facility. Upon determination by the

13 Administrator that a department, agency, or instru14 mentality qualifies for the exception provided by this

15 paragraph, the head of such department, agency, or

16 instrumentality may exercise enforcement authority

17 pursuant under section 106 (in addition to any other

18 delegated authorities). To the extent a person who

19 has been issued an order under the authority of this

20 paragraph seeks reimbursement under the provisions

21 of section 106, the relevant department, agency, or

22 instrumentality, and not the Fund, shall be the

23 source of any appropriate reimbursement. If the Ad24 ministrator determines that the relevant department,

25 agency, or instrumentality has failed to seek the per-
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1 formance of response actions by responsible parties

2 within 12 months after the facility has been listed

3 on the National Priorities List, the Administrator

4 may void the exception provided by this paragraph

5 and the applicable provisions or section 120(e) would

6 apply to the department, agency or instrumentality

7 at the facility.

8 SEC. 602. TRANSFERS OF UNCONTAMINATED PROPERTY.

9 Section 120(h)(4)(A) of the Act (42 U.S.C.

10 9620(h)(4)(A)) is amended by striking the words ‘‘stored

11 for one year or more,’’.

12 SEC. 603. AGREEMENTS TO TRANSFER BY DEED.

13 Section 120(h) of the Act (42 U.S.C. 9620(h)) is

14 amended by adding after paragraph (5) the following new

15 paragraph:

16 ‘‘(6) AGREEMENTS TO TRANSFER BY DEED.—

17 Nothing in this subsection shall be construed to pro18 hibit the head of the department, agency, or instru19 mentality of the United States from entering into an

20 agreement to transfer by deed real property or facili21 ties prior to the entering of such deed.’’.

22 SEC. 604. ALTERNATIVE OR INNOVATIVE TREATMENT

23 TECHNOLOGIES.

24 Section 111(a) of the Act of 1980 is amended by add25 ing after paragraph (6) the following new paragraph:
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1 ‘‘(7) ALTERNATIVE OR INNOVATIVE TREAT2 MENT TECHNOLOGIES.—

3 ‘‘(A) When a party potentially liable under

4 this Act undertakes a response action pursuant

5 to an administrative order or consent decree,

6 and employs an alternative or innovative tech7 nology that fails to achieve a level of response

8 required under this Act, the Administrator may

9 use the Fund to reimburse no more than 50

10 percent of response costs incurred by the poten11 tially liable party in taking other actions ap12 proved by the Administrator to achieve these

13 required levels of response. The Administrator

14 shall issue guidance on the procedures and cri15 teria to be used in determining whether a reme16 dial technology constitutes an alternative or in17 novative technology for purposes of this sub18 section, and the appropriate level of funding for

19 response activities that are necessary to achieve

20 a level of response required under this Act. The

21 Administrator shall review and update such

22 guidance, as appropriate.’’.

23 SEC. 605. DEFINITIONS.

24 Section 101 of the Act (42 U.S.C. 9601)) is amended

25 by—
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1 (a) in paragraph (1) striking the ‘‘.’’ after

2 ‘‘Act’’ and inserting ‘‘and includes the cost of en3 forcement activities related thereto.’’;

4 (b) in paragraph (10)(H) striking ‘‘subject to’’

5 and inserting ‘‘in compliance with’’;.

6 (c) in paragraph (14)) inserting after ‘‘Con7 gress’’ the phrase ‘‘, unless such waste contains a

8 substance that is listed under any other subpara9 graph of this paragraph’’;

10 (d) in paragraph (20) by—

11 (1) in subparagraph (A) inserting after

12 ‘‘similar means to’’ the phrase ‘‘the United

13 States (or any department, agency, or instru14 mentality thereof), or’’;

15 (2) in subparagraph (D) by inserting—

16 (A) after ‘‘does not include’’ the

17 phrase ‘‘the United States (or any depart18 ment, agency, or instrumentality thereof),

19 or’’; and,

20 (B) before ‘‘any State’’ the phrase

21 ‘‘any department, agency, or instrumental22 ity of the United States, or’’; and

23 (3) in subparagraph (D) by striking ‘‘a’’

24 after ‘‘such’’ and inserting ‘‘department, agen25 cy, or instrumentality of the United States, or’’;
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1 (4) by adding after subparagraph (D) the

2 following new subparagraphs:

3 ‘‘(E) The term ‘owner or operator’ shall

4 include a trust or estate, but does not include

5 a person who holds title to a vessel or facility

6 solely in the capacity as a fiduciary, provided

7 that such person—

8 ‘‘(i) does not participate in the man9 agement of a vessel or facility operations

10 that result in a release or threat of release

11 of hazardous substances; and

12 ‘‘(ii) complies with such other require13 ments as the Administrator may set forth

14 by regulation.

15 ‘‘(F) The term ‘owner or operator’ shall

16 not include the United States or any depart17 ment, agency or instrumentality of the United

18 States or a conservator or receiver appointed by

19 a department, agency or instrumentality of the

20 United States, which acquired ownership or

21 control of a vessel or facility (or any right or

22 interest therein)—

23 ‘‘(i) in connection with the exercise of

24 receivership or conservatorship authority

25 or the liquidation or winding up of the af-
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1 fairs of any entity subject to a receivership

2 or conservatorship, including any subsidi3 ary thereof; or

4 ‘‘(ii) in connection with the exercise of

5 any seizure or forfeiture authority; or

6 ‘‘(iii) pursuant to an act of Congress

7 specifying the property to be acquired:

8 Provided, That the United States, or conserva9 tor or receiver appointed by the United States

10 does not participate in the management of the

11 vessel or facility operations that result in a re12 lease or threat of release of hazardous sub13 stances and complies with such other require14 ments as the Administrator may set forth by

15 regulation.’’;

16 (e) in paragraph (23) adding at the end of the

17 paragraph the following ‘‘The terms ‘remove’ or ‘re18 moval’ are not limited to emergency situations and

19 include actions to address future or potential expo20 sures and, provided such actions are consistent with

21 the requirements of this Act, actions obviating the

22 need for a remedial action.’’;

23 (f) in paragraph (25) striking ‘‘related thereto’’,

24 and inserting ‘‘and oversight activities related there-
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1 to when such activities are undertaken by the Presi2 dent.’’;

3 (g) in paragraph (29) striking the ‘‘.’’ after

4 ‘‘Act’’ and inserting ‘‘, except that the term ‘‘haz5 ardous substance’’ shall be substituted for the term

6 ‘‘hazardous waste’’ in the definitions of ‘‘disposal’’

7 and ‘‘treatment.’’;

8 (h) in paragraph (33) striking ‘‘; except that

9 the’’, and inserting ‘‘. The’’;

10 (i) adding after paragraph (38) the following

11 new paragraphs:

12 ‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—

13 The term ‘bona fide prospective purchaser’ means a

14 person who acquires ownership of a facility after en15 actment of this provision, and who can establish by

16 a preponderance of the evidence that—

17 ‘‘(A) all active disposal of hazardous sub18 stances at the facility occurred before that per19 son acquired the facility;

20 ‘‘(B) the person conducted a site audit of

21 the facility in accordance with commercially

22 reasonable and generally accepted standards

23 and practices. The Administrator shall have au24 thority to develop standards by guidance or reg25 ulation, or to designate standards promulgated
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1 or developed by others, that satisfy this sub2 paragraph. In the case of property for residen3 tial or other similar use, a site inspection and

4 title search that reveal no basis for further in5 vestigation satisfy the requirements of this sub6 paragraph;

7 ‘‘(C) the person provided all legally re8 quired notices with respect to the discovery or

9 release of any hazardous substances at the fa10 cility;

11 ‘‘(D) the person exercised due care with re12 spect to hazardous substances found at the fa13 cility and took reasonably necessary steps to ad14 dress any release or threat of release of hazard15 ous substances and to protect human health

16 and the environment. The requirements of due

17 care and reasonably necessary steps with re18 spect to hazardous substances discovered at the

19 facility shall be conclusively established where

20 the person successfully completes a response ac21 tion pursuant to a State voluntary response

22 program, as defined in section 127 of this title;

23 and

24 ‘‘(E) the person provides full cooperation,

25 assistance, and facility access to those respon-
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1 sible for response actions at the facility, includ2 ing the cooperation and access necessary for the

3 installation, integrity, operation, and mainte4 nance of any complete or partial response ac5 tion at the facility; and

6 ‘‘(F) the person is not affiliated with any

7 other person liable for response costs at the fa8 cility, through any direct or indirect familial re9 lationship, or any contractual, corporate, or fi10 nancial relationship other than that created by

11 the instruments by which title to the facility is

12 conveyed or financed.

13 ‘‘(40) FIDUCIARY.—

14 ‘‘(A) Except as provided in subparagraph

15 (B), the term ‘fiduciary’ means a person who

16 owns or controls property—

17 ‘‘(i) as a fiduciary within the meaning

18 of section 3(31) of the Employee Retire19 ment Income Security Act of 1974, or as

20 a trustee, executor, administrator, custo21 dian, guardian, conservator, or receiver

22 acting for the exclusive benefit of another

23 person; and
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1 ‘‘(ii) who has not previously owned or

2 operated the property in a non-fiduciary

3 capacity.

4 ‘‘(B) The term ‘fiduciary’ does not include

5 any person described in subparagraph (A)—

6 ‘‘(i) who acquires ownership or control

7 of property to avoid the liability of such

8 person or any other person under this Act;

9 or

10 ‘‘(ii) who owns or controls property on

11 behalf of or for the benefit of a holder of

12 a security interest.

13 ‘‘(41) MUNICIPAL SOLID WASTE.—The term

14 ‘municipal solid waste’ means all waste materials

15 generated by households, including single and multi16 family residences, and hotels and motels. The term

17 also includes waste materials generated by commer18 cial, institutional, and industrial sources, to the ex19 tent such wastes (A) are essentially the same as

20 waste normally generated by households or (B) were

21 collected and disposed of with other municipal solid

22 waste or sewage sludge as part of normal municipal

23 solid waste collection services, and, regardless of

24 when generated, would be considered conditionally

25 exempt small quantity generator waste under section
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1 3001(d) of the Solid Waste Disposal Act (42 U.S.C.

2 6921(d)). Examples of municipal solid waste include

3 food and yard waste, paper, clothing, appliances,

4 consumer product packaging, disposable diapers, of5 fice supplies, cosmetics, glass and metal food con6 tainers, elementary or secondary school science lab7 oratory waste, and household hazardous waste (such

8 as painting, cleaning, gardening, and automotive

9 supplies). The term ‘municipal solid waste’ does not

10 include combustion ash generated by resource recov11 ery facilities or municipal incinerators, or waste

12 from manufacturing or processing (including pollu13 tion control) operations not essentially the same as

14 waste normally generated by households.

15 ‘‘(42) MUNICIPALITY.—The term ‘municipality’

16 means a political subdivision of a State, including

17 cities, counties, villages, towns, townships, boroughs,

18 parishes, school districts, sanitation districts, water

19 districts, and other public entities performing local

20 governmental functions. The term also includes a

21 natural person acting in the capacity of an official,

22 employee, or agent of a municipality in the perform23 ance of governmental functions.

24 ‘‘(43) QUALIFIED HOUSEHOLD HAZARDOUS

25 WASTE COLLECTION PROGRAM.—The term ‘qualified
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1 household hazardous waste collection program’

2 means a program established by an entity of the fed3 eral government, a state, municipality, or Indian

4 tribe that provides, at a minimum, for semiannual

5 collection of household hazardous wastes at acces6 sible, well-publicized collection points within the rel7 evant jurisdiction.

8 ‘‘(44) SEWAGE SLUDGE.—The term ‘sewage

9 sludge’ means solid, semisolid, or liquid residue re10 moved during the treatment of municipal waste

11 water, domestic sewage, or other waste water at or

12 by publicly-owned or federally-owned treatment

13 works.

14 ‘‘(45) SITE CHARACTERIZATION.—The term

15 ‘site characterization’ means an investigation that

16 determines the nature and extent of a release or po17 tential release of a hazardous substance, pollutant or

18 contaminant, and that includes an on-site evaluation

19 and sufficient testing, sampling and other field data

20 gathering activities to analyze whether there has

21 been a release or threat of a release of a hazardous

22 substance, pollutant or contaminant, and the health

23 and environmental risks posed by such a release or

24 threat of release. The investigation also may include

25 review of existing information (available at the time
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1 of the review), an off-site evaluation, or other meas2 ures as the Administrator deems appropriate.

3 ‘‘(46) VOLUNTARY RESPONSE.—The term ‘vol4 untary response’ means a response action—

5 ‘‘(A) undertaken and financed by a current

6 owner or prospective purchaser under a vol7 untary response program; and

8 ‘‘(B) with respect to which the current

9 owner or prospective purchaser agrees to pay all

10 State oversight costs.’’.

11 SEC. 606. CONFORMING AMENDMENT.

12 Section 126(a) of the Act (42 U.S.C. 9626(a)) is

13 amended by adding, after ‘‘section 104(i) (regarding

14 health authorities),’’ the phrase ‘‘section 127 (regarding

15 State authority), section 120 (regarding voluntary re16 sponse actions),’’.

17 TITLE VII—FUNDING

18 SEC. 701. AUTHORIZATION OF APPROPRIATIONS.

19 Section 111(a) of the Act is amended by striking

20 ‘‘$8,500,000,000 for the 5-year period beginning on Octo21 ber 17, 1986, and not more than $5,100,000,000 for the

22 period commencing October 1, 1991, and ending Septem23 ber 30, 1994’’ and inserting ‘‘$9,600,000,000 for the pe24 riod commencing October 1, 1994 and ending September

25 30, 1999’’.
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1 SEC. 702. ORPHAN SHARE FUNDING.

2 Section 111(a) is amended by adding after paragraph

3 (7) (as added by this Act) the following new paragraph:

4 ‘‘(8) ORPHAN SHARE FUNDING.—Payment of

5 orphan shares pursuant to section 122a(e) of this

6 Act.’’.

7 SEC. 703. AGENCY FOR TOXIC SUBSTANCES AND DISEASE

8 REGISTRY.

9 Section 111(m) of the Act is amended to read as fol10 low:

11 ‘‘(m) There shall be directly available to the Agency

12 for Toxic Substances and Disease Registry to be used for

13 the purpose of carrying out activities described in sub14 section (c)(4) of this section and section 104(i) of this Act

15 not less than $80,000,000 per fiscal year for each of fiscal

16 years 1995, 1996, 1997, 1998, and 1999. Any funds so

17 made available which are not obligated by the end of the

18 fiscal year in which made available shall be returned to

19 the Fund.’’.

20 SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT,

21 AND DEMONSTRATION PROGRAMS.

22 Section 111(n) of the Act is amended to read as fol23 lows:

24 ‘‘(1) SECTION 311(b).—For each of the fiscal

25 years 1995, 1996, 1997, 1998, and 1999, not more

26 than $20,000,000 of the amounts available in the
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1 Fund may be used for the purposes of carrying out

2 the applied research, development, and demonstra3 tion program for alternative or innovative tech4 nologies and training program authorized under sec5 tion 311(b) of this title (relating to research, devel6 opment, demonstration) other than basic research.

7 Such amounts shall remain available until expended.

8 ‘‘(2) SECTION 311(a).—From the amounts avail9 able in the Fund, not more than the following

10 amounts may be used for the purposes of section

11 311(a) of this title (relating to hazardous substance

12 research, demonstration, and training activities)—

13 ‘‘(A) For fiscal year 1995 $40,000,000,

14 ‘‘(B) For fiscal year 1996 $50,000,000,

15 ‘‘(C) For fiscal year 1997 $55,000,000,

16 ‘‘(D) For fiscal year 1998 $55,000,000,

17 ‘‘(E) For fiscal year 1999 $55,000,000,

18 No more than 10 percent of such amounts shall be

19 used for training under section 311(a) of this title

20 for any fiscal year.

21 ‘‘(3) SECTION 311(d).—For each of the fiscal

22 years 1995, 1996, 1997, 1998, and 1999, not more

23 than $5,000,000 of the amounts available in the

24 Fund may be used for the purposes of section
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1 311(d) of this title (relating to university hazardous

2 substance research centers).’’.

3 SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM

4 GENERAL REVENUES.

5 Section 111(p)(1) of the Act is amended to read as

6 follows:

7 ‘‘(1) IN GENERAL.—The following sums are au8 thorized to be appropriated, out of any money in the

9 Treasury not otherwise appropriated, to the Hazard10 ous Substance Superfund:

11 ‘‘(A) For fiscal year 1995 $250,000,000,

12 ‘‘(B) For fiscal year 1996 $250,000,000,

13 ‘‘(C) For fiscal year 1997 $250,000,000,

14 ‘‘(D) For fiscal year 1998 $250,000,000,

15 ‘‘(E) For fiscal year 1999 $250,000,000,

16 In addition there is authorized to be appropriated to

17 the Hazardous Substance Superfund for each fiscal

18 year an amount equal to so much of the aggregate

19 amount authorized to be appropriated under this

20 subsection (and paragraph (2) of section 131(b) of

21 this title) as has not been appropriated before the

22 beginning of the fiscal year involved.’’.

23 SEC. 706. ADDITIONAL LIMITATIONS.

24 Section 111 of the Act is amended by adding after

25 subsection (p) the following new subsections:
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1 ‘‘(q) ALTERNATIVE OR INNOVATIVE TREATMENT

2 TECHNOLOGIES.—For each of the fiscal years 1995,

3 1996, 1997, 1998, and 1999, not more than $40,000,000

4 of the amounts available in the Fund may be used for the

5 purposes of subsection (a)(7) of this section (relating to

6 alternative or innovative treatment technologies).

7 ‘‘(r) CITIZEN INFORMATION AND ACCESS OF8 FICES.—For each of the fiscal years 1995, 1996, 1997,

9 1998, and 1999, not more than $50,000,000 of the

10 amounts available in the Fund may be used for the pur11 poses of section 117(j) of this Act (relating to citizen in12 formation and access offices).

13 ‘‘(s) MULTIPLE SOURCES OF RISK DEMONSTRATION

14 PROJECTS.—For the period commencing October 1, 1994

15 and ending September 30, 1999, not more than

16 $30,000,000 of the amounts available in the Fund may

17 be used for the purposes of section 117(k) of this Act (re18 lating to multiple sources of risk demonstration

19 projects).’’.

20 TITLE VIII—ENVIRONMENTAL INSURANCE

21 RESOLUTION FUND

22 SEC. 801. SHORT TITLE.

23 This title may be cited as the ‘‘Environmental Insur24 ance Resolution and Equity Act of 1994’’.
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1 SEC. 802. ENVIRONMENTAL INSURANCE RESOLUTION

2 FUND.

3 (a) ENVIRONMENTAL INSURANCE RESOLUTION

4 FUND ESTABLISHED.—There is hereby established the

5 Environmental Insurance Resolution Fund (hereinafter

6 referred to as the ‘‘Resolution Fund’’).

7 (b) OFFICES.—The principal office of the Resolution

8 Fund shall be in the District of Columbia or at such other

9 place as the Resolution Fund may from time to time pre10 scribe.

11 (c) STATUS OF RESOLUTION FUND.—Except as ex12 pressly provided in this title, the Resolution Fund shall

13 not be considered an agency or establishment of the Unit14 ed States. The members of the Board of Trustees shall

15 not, by reason of such membership, be deemed to be offi16 cers or employees of the United States.

17 (d) BOARD OF TRUSTEES.—

18 (1) IN GENERAL.—The Resolution Fund shall

19 be administered by a Board of Trustees (Board).

20 (2) MEMBERSHIP.—The Board shall consist

21 of—

22 (A) GOVERNMENTAL MEMBERS.—

23 (i) The Administrator of the Environ24 mental Protection Agency.

25 (ii) The Attorney General of the Unit26 ed States.
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1 (B) PUBLIC MEMBERS.—Five public mem2 bers appointed by the President not later than

3 60 days after the date of enactment of this

4 title, not less than two of whom shall represent

5 insurers subject to section of the Inter6 nal Revenue Code of 1986, and not less than

7 two of whom shall represent eligible persons de8 fined in subsection (g)(2)(A). The public mem9 bers shall be citizens of the United States.

10 (C) EX-OFFICIO MEMBER.—The Secretary

11 of the Treasury shall serve as an ex officio

12 member of the Board.

13 (3) CHAIR.—The Chair of the Board shall be

14 designated by the President from time to time from

15 among the members described in paragraph (2)(A).

16 No expenditure may be made, or other action taken,

17 by the Resolution Fund without the concurrence of

18 the Chair of the Board.

19 (4) COMPENSATION.—Governmental members

20 of the Board shall serve without additional com21 pensation. Public members of the Board shall, while

22 attending meetings of the Board or while engaged in

23 duties related to such meetings or other activities of

24 the Board pursuant to this title, be entitled to re25 ceive compensation at the rate of $200 per day, in-
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S 1834 IS

1 cluding travel time. While away from their homes or

2 regular places of business, members of the Board

3 shall be allowed travel and actual, reasonable and

4 necessary expenses to the same extent as officers of

5 the United States.

6 (5) TERM OF PUBLIC MEMBERS.—Public mem7 bers of the Board shall serve for a term of 5 years,

8 except that such members may be removed by the

9 President for any reason at any time. A public mem10 ber whose term has expired may continue to serve

11 on the Board until such time as the President ap12 points a successor. The President may reappoint a

13 public member of the Board, but no such member

14 may consecutively serve more than two terms.

15 (6) VACANCIES.—A vacancy on the Board shall

16 be filled in the same manner as the original appoint17 ment, except that such appointment shall be for the

18 balance of the unexpired term of the vacant position.

19 (7) QUORUM.—Four members of the Board

20 shall constitute a quorum for the conduct of busi21 ness.

22 (8) MEETINGS.—The Board shall meet not less

23 than quarterly at the call of the Chair. Meetings of

24 the Board shall be open to the public unless the

25 Board, by a majority vote of members present in
139

S 1834 IS

1 open session, determines that it is necessary or ap2 propriate to close a meeting. The Chair shall provide

3 at least 10 days notice of a meeting by publishing

4 a notice in the Federal Register and such notice

5 shall indicate whether it is expected that the Board

6 will consider closing all or a portion of the meeting.

7 Nothing in this paragraph shall be construed to

8 apply to informal discussions or meetings among

9 Board members.

10 (e) OFFICERS AND EMPLOYEES.—

11 (1) CHIEF EXECUTIVE OFFICER; CHIEF FINAN12 CIAL OFFICER.—

13 (A) The Resolution Fund shall have a

14 Chief Executive Officer appointed by the Board

15 who shall exercise any authority of the Resolu16 tion Fund under such terms and conditions as

17 the Board may prescribe.

18 (B) The Resolution Fund shall have a

19 Chief Financial Officer appointed by the Board.

20 (2) COMPENSATION.—No officer or employee of

21 the Resolution Fund may be compensated by the

22 Resolution Fund at an annual rate of pay which ex23 ceeds the rate of basic pay in effect from time to

24 time for level I of the Executive Schedule under sec25 tion 5312 of title 5, United States Code. No officer
140

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1 or employee of the Resolution Fund, other than a

2 member of the Board, may receive any salary or

3 other compensation from any source other than the

4 Resolution Fund for services rendered during the pe5 riod of employment by the Resolution Fund.

6 (3) POLITICAL TEST OR QUALIFICATION.—No

7 political test or qualification shall be used in select8 ing, appointing, promoting, or taking other person9 nel actions with respect to officers, agents, and em10 ployees of the Resolution Fund.

11 (4) ASSISTANCE BY FEDERAL AGENCIES.—The

12 Attorney General, the Secretary of the Treasury,

13 and the Administrator of the Environmental Protec14 tion Agency, may to the extent practicable and fea15 sible, and in their sole discretion, make personnel

16 and other resources available to the Resolution

17 Fund. Such personnel and resources may be pro18 vided on a reimbursable basis, and any personnel so

19 provided shall not be considered employees of the

20 Resolution Fund for purposes of paragraph (2).

21 (f) POWERS OF RESOLUTION FUND.—Notwithstand22 ing any other provision of law, except as provided in this

23 title or as may be hereafter enacted by the Congress ex24 pressly in limitation of the provisions of this paragraph,

25 the Resolution Fund shall have power—
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1 (1) to have succession until dissolved by Act of

2 Congress;

3 (2) to make and enforce such bylaws, rules and

4 regulations as may be necessary or appropriate to

5 carry out the purposes of this title;

6 (3) to make and perform contracts, agreements,

7 and commitments;

8 (4) to settle, adjust, and compromise, and with

9 or without consideration or benefit to the Resolution

10 Fund release or waive in whole or in part, in ad11 vance or otherwise, any claim, demand, or right of,

12 by, or against the Resolution Fund;

13 (5) to sue and be sued, complain and defend, in

14 any State, Federal or other court;

15 (6) to determine its necessary expenditures and

16 the manner in which the same shall be incurred, al17 lowed, and paid, and appoint, employ, and fix and

18 provide for the duties, compensation and benefits of

19 officers, employees, attorneys, and agents, all of

20 whom shall serve at the pleasure of the Board;

21 (7) to invest funds, through the Secretary of

22 the Treasury, in interest bearing securities of the

23 United States suitable to the needs of the Resolution

24 Fund: Provided, That interest earned on such invest-
142

S 1834 IS

1 ments shall be retained by the Resolution Fund and

2 used consistent with the purposes of this title;

3 (8) to hire or accept the voluntary services of

4 consultants, experts, advisory boards, and panels to

5 aid the Resolution Fund in carrying out the pur6 poses of this title; and

7 (9) to take such other actions as may be nec8 essary to carry out the responsibilities of the Resolu9 tion Fund under this title. Nothing in this sub10 section or any other provision of this title shall be

11 construed to permit the Resolution Fund to issue

12 any evidence of indebtedness or otherwise borrow

13 money.

14 (g) RESOLUTION OF DISPUTES BETWEEN INSUREDS

15 AND INSURERS.—

16 (1) IN GENERAL.—The Resolution Fund shall

17 offer a comprehensive resolution described in this

18 subsection with respect to all eligible costs of an eli19 gible person at eligible sites.

20 (2) DEFINITIONS.—

21 (A) ELIGIBLE PERSON.—For purposes of

22 this subsection, the term ‘‘eligible person’’

23 means any individual, firm, corporation, asso24 ciation, partnership, consortium, joint venture,

25 commercial entity or governmental unit (includ-
143

S 1834 IS

1 ing any predecessor in interest or any subsidi2 ary thereof) that satisfies the following criteria:

3 (i) STATUS AS POTENTIALLY RESPON4 SIBLE PARTY.—An eligible person—

5 (I) shall have been named at any

6 time as a potentially responsible party

7 pursuant to the Comprehensive Envi8 ronmental Response, Compensation

9 and Liability Act with respect to an

10 eligible site on the National Priority

11 List in connection with a hazardous

12 substance that was disposed of on or

13 before December 31, 1985; or

14 (II) is or was liable, or alleged to

15 be liable, at any time for removal (as

16 defined in section 101(23) of the

17 Comprehensive Environmental Re18 sponse, Compensation and Liability

19 Act (42 U.S.C. 9601(23)) at any eligi20 ble site in connection with a hazard21 ous substance that was disposed of on

22 or before December 31, 1985.

23 (ii) INSURANCE COVERAGE.—An eligi24 ble person shall have demonstrated, to the

25 satisfaction of the Resolution Fund, that
144

S 1834 IS

1 such person had entered into a valid con2 tract for comprehensive general liability

3 (including broad form liability, general li4 ability, commercial general liability, and

5 excess or umbrella coverage) or commercial

6 multi-peril (including broad form property,

7 commercial package, special multi-peril,

8 and excess or umbrella coverage) insurance

9 coverage—

10 (I) for any seven years in any

11 consecutive 14 year period prior to

12 January 1, 1986; or

13 (II) in the case of a person that

14 has been in existence for less than 14

15 years prior to January 1, 1986, for at

16 least one-half of such years of exist17 ence.

18 For purposes of this clause, a valid con19 tract for insurance shall not include any

20 contract for insurance with respect to

21 which a person has entered into a settle22 ment with an insurer providing, or where

23 a judgment has provided, that the contract

24 has been satisfied and that such person
145

S 1834 IS

1 has no right to make any further claims

2 under such contract.

3 (B) ELIGIBLE COSTS.—

4 (i) IN GENERAL.—For purposes of

5 this subsection, the term ‘‘eligible costs’’

6 means costs described in clause (ii) or (iii)

7 incurred with respect to a hazardous sub8 stance that was disposed of on or before

9 December 31, 1985—

10 (I) for which an eligible person

11 has not been reimbursed; or

12 (II) for which an eligible person

13 has been reimbursed and that are the

14 subject of a dispute between the eligi15 ble person and an insurer.

16 (ii) NPL SITES.—With respect to an

17 eligible site described in subparagraph

18 (C)(i), eligible costs means costs described

19 in clause (i)—

20 (I) of response (as defined in sec21 tion 101(25) of the Comprehensive

22 Environmental Response, Compensa23 tion and Liability Act (42 U.S.C.

24 9601(25));
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S 1834 IS

1 (II) for natural resources dam2 ages; or

3 (III) to defend potential liability

4 (including, but not limited to, attor5 ney’s fees, costs of suit, consultant

6 and expert fees and costs, and ex7 penses for testing and monitoring).

8 (iii) NON–NPL SITES.—With respect

9 to an eligible site described in subpara10 graph (C)(ii), eligible costs means costs de11 scribed in clause (i)—

12 (I) of removal (as defined in sec13 tion 101(23) of the Comprehensive

14 Environmental Response, Compensa15 tion and Liability Act (42 U.S.C.

16 9601(23)); or

17 (II) to defend potential liability

18 (including, but not limited to, attor19 ney’s fees, costs of suit, consultant

20 and expert fees and costs, and ex21 penses for testing and monitoring).

22 (iv) LIMIT ON ELIGIBLE COSTS.—

23 (I) Except as provided in

24 subclause (II), the eligible costs of an

25 eligible person may not exceed—
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S 1834 IS

1 (aa) $15,000,000 in the case

2 of an eligible person that has

3 demonstrated insurance coverage

4 pursuant to subparagraph

5 (A)(ii))(I); or

6 (bb) an amount equal to

7 one-seventh of $15,000,000 for

8 each year of insurance coverage,

9 in the case of an eligible person

10 that has demonstrated insurance

11 coverage pursuant to subpara12 graph (A)(ii)(II).

13 (II) The limitation on eligible

14 costs provided in subclause (I) shall

15 not apply to an eligible person that,

16 when filing a request for a resolution

17 offer with the Resolution Fund, pre18 sents evidence to the satisfaction of

19 the Resolution Fund that the limits

20 on valid contracts of insurance (in21 cluding per occurrence, aggregate, pri22 mary, excess or other limits) of such

23 eligible person prior to January 1,

24 1986, cumulatively exceed the amount

25 determined pursuant to subclause (I)
148

S 1834 IS

1 without reference to any time period.

2 For purposes of this clause, a valid

3 contract for insurance shall not in4 clude any contract for insurance with

5 respect to which an eligible person has

6 entered into a settlement with an in7 surer providing, or where a judgment

8 has provided, that the contract has

9 been satisfied and that such eligible

10 person has no right to make any fur11 ther claims under such contract.

12 (C) ELIGIBLE SITE.—For purposes of this

13 subsection, the term ‘‘eligible site’’ means—

14 (i) any site or facility placed on the

15 National Priority List at any time, at

16 which a hazardous substance was disposed

17 of on or before December 31, 1985; or

18 (ii) any site or facility subject to a re19 moval (as defined in section 101(23) of the

20 Act (42 U.S.C. 9601(23)) conducted pur21 suant to such Act at any time, at which a

22 hazardous substance was disposed of on or

23 before December 31, 1985.

24 For purposes of this subparagraph, the term

25 ‘‘facility’’ shall have the same meaning as pro-
149

S 1834 IS

1 vided in section 101(9) of the Comprehensive

2 Environmental Response, Compensation and Li3 ability Act (42 U.S.C. 9601(9)).

4 (D) STATE.—For purposes of this sub5 section, the term ‘‘State’’ shall have the same

6 meaning as provided in section 101(27) of the

7 Comprehensive Environmental Response, Com8 pensation and Liability Act (42 U.S.C.

9 9601(27)).

10 (3) RESOLUTION OFFERS.—

11 (A) IN GENERAL.—The Resolution Fund

12 shall offer one comprehensive resolution to each

13 eligible person. The offer shall—

14 (i) be for a percentage of all of the eli15 gible costs of such eligible person incurred

16 in connection with all eligible sites, deter17 mined pursuant to paragraph (4); and

18 (ii) state the limitation on eligible

19 costs, if any, applicable to the eligible per20 son pursuant to paragraph (2)(B)(ii).

21 (B) REQUESTS FOR RESOLUTION OF22 FERS.—An eligible person shall file a request

23 for resolution from the Resolution Fund in such

24 form and manner as the Resolution Fund shall

25 prescribe. No such request shall be deemed re-
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S 1834 IS

1 ceived by the Resolution Fund before the date

2 final regulations concerning State percentage

3 categories are published in the Federal Register

4 pursuant to paragraph 4(B)(iii). The Resolu5 tion Fund shall make an offer of resolution, de6 termined pursuant to paragraph (4), to each el7 igible person that has filed a request for an

8 offer of resolution not later than 180 days after

9 the receipt of a complete request as determined

10 by the Resolution Fund.

11 (C) REVIEW OF RESOLUTION OFFERS.—

12 No resolution offer made by the Resolution

13 Fund shall be subject to review by any court.

14 (4) DETERMINATION OF RESOLUTION OF15 FERS.—

16 (A) IN GENERAL.—The Resolution Fund

17 shall determine a resolution offer—

18 (i) in the case of an eligible person

19 that has established only one State litiga20 tion venue pursuant to subparagraph (C),

21 by applying the State percentage deter22 mined pursuant to subparagraph (B)(iii) to

23 the established State litigation venue;

24 (ii) in the case of an eligible person

25 that has established two or more State liti-
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S 1834 IS

1 gation venues pursuant to subparagraph

2 (C), each site with respect to which a State

3 litigation venue has been established shall

4 be accorded equal value and the applicable

5 percentage shall be the weighted average of

6 all established State litigation venues; or

7 (iii) in the case of an eligible person

8 that has not established any State litiga9 tion venue pursuant to subparagraph

10 (C)—

11 (I) if the eligible person has po12 tential liability in connection with only

13 one hazardous waste site, by applying

14 the State percentage determined pur15 suant to subparagraph (B)(iii) to the

16 State in which the site is located; or

17 (II) if the eligible person has po18 tential liability in connection with

19 more than one hazardous waste site,

20 each site shall be accorded equal value

21 and the applicable percentage shall be

22 the weighted average of all States in

23 which the sites are located;

24 (B) STATE PERCENTAGE.—
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1 (i) IN GENERAL.—The Congress finds

2 that as of January 1, 1994, State law gen3 erally is more favorable to eligible persons

4 that pursue claims concerning eligible costs

5 against insurers in some States, that State

6 law generally is more favorable to insurers

7 with respect to such claims in some States,

8 and that in some States the law generally

9 favors neither insurers nor eligible persons

10 with respect to such claims or that there is

11 insufficient information to determine

12 whether such law generally favors insurers

13 or eligible persons with respect to such

14 claims. The Congress further finds that

15 considerations of equity and fairness re16 quire that resolution offers made by the

17 Resolution Fund must vary to reflect the

18 relative state of the law among the several

19 States.

20 (ii) PROPOSED REGULATIONS.—The

21 Resolution Fund shall examine the law in

22 each State as of January 1, 1994. Not

23 later than 120 days after the date of en24 actment of this title, the Resolution Fund

25 shall publish in the Federal Register a no-
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S 1834 IS

1 tice of proposed rulemaking soliciting pub2 lic comment for 60 days and classifying

3 States into the following percentage cat4 egories:

5 (I) 20 percent, in the case of the

6 ten States in which the Resolution

7 Fund determines that State law gen8 erally is most favorable to insurers

9 relative to the other States;

10 (II) 60 percent, in the case of the

11 ten States in which the Resolution

12 Fund determines that State law gen13 erally is most favorable to eligible per14 sons relative to the other States; and

15 (III) 40 percent, in the case of

16 all other States.

17 (iii) FINAL REGULATIONS.—

18 (I) Not later than 60 days after

19 the close of the public comment pe20 riod, the Resolution Fund shall pub21 lish in the Federal Register final reg22 ulations providing State classifica23 tions.

24 (II) The State classifications pro25 vided in the final rule shall govern all
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1 resolution offers made by the Resolu2 tion Fund and shall not be subject to

3 amendment by the Resolution Fund.

4 (III) Notwithstanding any other

5 provision of law, the final regulations

6 promulgated by the Resolution Fund

7 pursuant to this clause shall not be

8 subject to review by any court.

9 (C) LITIGATION VENUE.—For purposes of

10 this subsection, litigation venue is considered

11 established with respect to an eligible person

12 if—

13 (i) on or before December 31, 1993,

14 the eligible person had pending in a court

15 of competent jurisdiction a complaint or

16 cross complaint against an insurer with re17 spect to eligible costs at an eligible site;

18 and

19 (ii) no motion to change venue with

20 respect to such complaint was pending on

21 or before January 31, 1994.

22 (5) ACCEPTANCE OR REJECTION OF RESOLU23 TION OFFER.—

24 (A) IN GENERAL.—
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1 (i) An eligible person may, when sub2 mitting a request for a resolution to the

3 Resolution Fund, make a written irrev4 ocable election to accept any resolution to

5 be made by the Resolution Fund.

6 (ii) An eligible person that does not

7 make an election pursuant to clause (i)

8 shall, within 60 days of the receipt of a

9 resolution offer from the Resolution Fund,

10 notify the Resolution Fund in writing of its

11 irrevocable acceptance or rejection of such

12 offer. An eligible person who does not ac13 cept or reject a resolution offer within 60

14 days shall be deemed to have made an ir15 revocable election to reject the offer and

16 the provisions of subparagraph (C) shall

17 apply.

18 (B) RESOLUTION OFFER ACCEPTED.—An

19 eligible person that accepts a resolution offered

20 by the Resolution Fund shall be subject to the

21 provisions of this paragraph.

22 (i) WAIVER OF INSURANCE CLAIMS.—

23 The Resolution Fund shall not make pay24 ments to an eligible person unless the eligi-
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1 ble person agrees in writing, subject to re2 instatement described in clause (ii)—

3 (I) to waive any existing and fu4 ture claims against any insurer for eli5 gible costs; and

6 (II) to stay or dismiss each claim

7 pending against an insurer for eligible

8 costs.

9 (ii) REINSTATEMENT OF INSURANCE

10 CLAIMS.—

11 (I) If the Resolution Fund fails

12 to timely fulfill its obligations to an

13 eligible person under the terms of an

14 accepted resolution offer, such eligible

15 person shall be entitled to reinstate

16 any claim under a contract for insur17 ance with respect to eligible costs.

18 (II) STATUTE OF LIMITATION

19 TOLLED.—Notwithstanding any other

20 provision of Federal or State law, any

21 Federal or State statute of limitation

22 concerning the filing or prosecution of

23 an action by an eligible person against

24 an insurer, or by an insurer against

25 an eligible person, with respect to eli-
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1 gible costs shall be tolled during the

2 pendency of the stay of pending litiga3 tion established by section 804(a).

4 (iii) PAYMENT OF RESOLUTION OF5 FERS.—

6 (I) PRE-RESOLUTION COSTS.—

7 The Resolution Fund shall make

8 equal annual payments over a period

9 of eight years for eligible costs in10 curred by an eligible person on or be11 fore the date such person accepts a

12 resolution offer pursuant to subpara13 graph (A) (i) or (ii), and interest shall

14 not accrue with respect to such eligi15 ble costs. The Resolution Fund may,

16 in its sole discretion, make such pay17 ments over a shorter period if the ag18 gregate eligible costs do not exceed

19 $50,000. An eligible person shall sub20 mit to the Resolution Fund docu21 mentation of such costs as the Resolu22 tion Fund may require. The initial

23 payment to an eligible person under

24 this subclause shall be made not later

25 than 60 days after the receipt of doc-
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1 umentation satisfactory to the Resolu2 tion Fund.

3 (II) POST-RESOLUTION COSTS.—

4 The Resolution Fund shall make pay5 ments for eligible costs incurred by an

6 eligible person after the date such per7 son accepts a resolution offer pursu8 ant to subparagraph (A) (i) or (ii) to

9 the eligible person, or to a contractor

10 or other person designated by the eli11 gible person, subject to such docu12 mentation as the Resolution Fund

13 may require. Payments under this

14 subclause shall be made not later than

15 60 days after the receipt of docu16 mentation satisfactory to the Resolu17 tion Fund.

18 (III) ADJUSTMENT FOR DEDUCT19 IBLE OR SELF INSURANCE.—In the

20 case of an eligible person that has

21 submitted to the Resolution Fund, as

22 proof of status as an eligible person,

23 a contract for insurance described in

24 paragraph (2)(A)(ii) that is subject to

25 a self-insured retention or a deduct-
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1 ible, payment to such eligible person

2 pursuant to a resolution shall be re3 duced by the amount of such self-in4 sured retention or deductible, except

5 that such reduction shall not exceed

6 the amount of one self-insured reten7 tion or one deductible that the eligible

8 person would have been required to

9 pay with respect to one claim for eligi10 ble costs under the terms of the con11 tracts for insurance submitted. In the

12 event that the eligible person submit13 ted more than one contract for insur14 ance, any such reduction shall be

15 made with respect to the lowest of the

16 amounts of self-insured retentions and

17 deductibles.

18 (IV) ADJUSTMENT FOR CERTAIN

19 DUTY-TO-DEFEND COSTS.—If an in20 surer has incurred and paid costs pur21 suant to a duty-to-defend clause con22 tained in a contract for insurance de23 scribed in paragraph (2)(B), and such

24 costs are the subject of a dispute be25 tween the eligible person and an in-
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1 surer, the payment of a resolution to

2 an eligible person shall be reduced by

3 such amount, and the Resolution

4 Fund shall pay such amount to the

5 insurer. If such costs were paid by the

6 insurer on or before the date the eligi7 ble person accepted a resolution offer

8 made by the Resolution Fund, pay9 ment to an insurer under this

10 subclause shall be made in equal an11 nual installments over a period of

12 eight years, and interest shall not ac13 crue with respect to such costs. The

14 Resolution Fund may, in its sole dis15 cretion, make such payments over a

16 shorter period if the aggregate costs

17 do not exceed $50,000.

18 (C) RESOLUTION OFFER REJECTED; LITI19 GATION OF INSURANCE CLAIMS.—

20 (i) ADMISSIBILITY OF RESOLUTION

21 OFFER.—No resolution offered by the Res22 olution Fund shall be admissible in any

23 legal action brought by an eligible person

24 against an insurer or by an insurer against

25 an eligible person.
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1 (ii) INSURER ACTION AGAINST ELIGI2 BLE PERSON.—Any eligible person that re3 jects a resolution offer, litigates a claim

4 with respect to eligible costs against an in5 surer, and obtains a final judgment that is

6 less favorable than the resolution offered

7 by the Resolution Fund, shall be liable to

8 such insurer for 20 percent of the reason9 able costs and legal fees incurred by the

10 insurer in connection with such litigation

11 after the resolution was offered to the eli12 gible person. The district courts of the

13 United States shall have original jurisdic14 tion of all such actions, without regard to

15 amount or value. The court shall reduce

16 any award to an insurer in any such action

17 by the amount, if any, of such costs and

18 legal fees recovered by the insurer pursu19 ant to State law or court rule. Nothing in

20 this clause shall be construed to limit or

21 affect in any way the application of State

22 law, or the rule of any court, to such costs

23 or legal fees.

24 (iii) REIMBURSEMENT TO INSURER.—

25 In the case of an eligible person that re-
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1 jects a resolution offer, litigates a claim

2 with respect to eligible costs against one or

3 more insurers, and obtains a final judg4 ment against any such insurer, the Resolu5 tion Fund—

6 (I) shall reimburse to such in7 surer or insurers the lesser of the

8 amount of the resolution offer made

9 to the eligible person or the final

10 judgment; and

11 (II) may, if the resolution offer

12 exceeded the final judgment, reim13 burse the insurer or insurers for unre14 covered reasonable costs and legal

15 fees, except that the total reimburse16 ment under this subclause may not

17 exceed the amount of the resolution

18 offer to the eligible person.

19 Reimbursements pursuant to this clause

20 shall be subject to such documentation as

21 the Resolution Fund may require and shall

22 be made by the Resolution Fund not later

23 than 60 days after receipt by the Resolu24 tion Fund of a complete request for reim-
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1 bursement as determined by the Resolution

2 Fund.

3 (6) PAYMENTS CONSIDERED PURSUANT TO IN4 SURANCE CONTRACT.—Payments made by the Reso5 lution Fund pursuant to a resolution offer shall be

6 deemed payments made by an insurer under the

7 terms and conditions of a contract of insurance or

8 in settlement thereof. Nothing in this paragraph

9 shall be construed to affect in any way the issue of

10 whether the liability limits of a contract of insurance

11 has been satisfied.

12 (7) RESOLUTION PROCESS NOT ADMISSION OF

13 LIABILITY.—No provision of this title, and no action

14 by an eligible person undertaken in connection with

15 any provision of this title shall in any way constitute

16 an admission of liability in connection with the dis17 posal of a hazardous substance.

18 (8) REGULATIONS.—

19 (A) PROCEDURES AND DOCUMENTA20 TION.—Not later than 120 days after the date

21 of enactment of this title, the Resolution Fund

22 shall publish in the Federal Register for public

23 comment of not more than 60 days interim

24 final regulations concerning procedures and

25 documentation for the submission of requests
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1 for resolution offers and the payment of accept2 ed resolution offers. Not later than 60 days

3 after the close of the public comment period,

4 the Resolution Fund shall publish in the Fed5 eral Register final regulations concerning such

6 procedures and documentation, which may be

7 amended by the Resolution Fund from time to

8 time.

9 (B) OTHER REGULATIONS.—The Resolu10 tion Fund may prescribe such other regulations,

11 rules and procedures as the Resolution Fund

12 deems appropriate from time to time.

13 (C) JUDICIAL REVIEW.—No regulation,

14 rule or procedure prescribed by the Resolution

15 Fund pursuant to this paragraph shall be sub16 ject to review by any court except to the extent

17 such regulation, rule or procedure is not con18 sistent with a provision of this title.

19 (h) JURISDICTION OF FEDERAL COURTS.—Notwith20 standing section 1349 of title 28, United States Code:

21 (1) The Resolution Fund shall be deemed to be

22 an agency of the United States for purposes of sec23 tions 1345 and 1442 of title 28, United States Code.

24 (2) All civil actions to which the Resolution

25 Fund is a party shall be deemed to arise under the
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1 laws of the United States, and the district courts of

2 the United States shall have original jurisdiction of

3 all such actions, without regard to amount or value.

4 (3) Any civil or other action, case or con5 troversy in a court of a State, or in any court other

6 than a district court of the United States, to which

7 the Resolution Fund is a party may at any time be8 fore the trial thereof be removed by the Resolution

9 Fund, without the giving of any bond or security, to

10 the district court of the United States for the dis11 trict and division embracing the place where the

12 same is pending, or, if there is no such district

13 court, to the district court of the United States for

14 the district in which the principal office of the Reso15 lution Fund is located, by following any procedure

16 for removal of causes in effect at the time of such

17 removal.

18 (4) No attachment or execution shall be issued

19 against the Resolution Fund or any of its property

20 before final judgment in any State, Federal, or other

21 court.

22 (i) REPORTS.—

23 (1) ANNUAL REPORTS.—The Resolution Fund

24 shall report annually to the President and the Con25 gress not later than January 15 of each year on its
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1 activities for the prior fiscal year. The report shall

2 include—

3 (A) a financial statement audited by an

4 independent auditor; and

5 (B) a determination of whether the fees

6 and assessments imposed by section of

7 the Internal Revenue Code of 1986 will be suf8 ficient to meet the anticipated obligations of the

9 Resolution Fund.

10 (2) SPECIAL REPORTS.—The Resolution Fund

11 shall promptly report to the President and the Con12 gress at any time the Resolution Fund determines

13 that the fees and assessments imposed by section

14 of the Internal Revenue Code of 1986 will be

15 insufficient to meet the anticipated obligations of the

16 Resolution Fund.

17 (j) FALSE OR FRAUDULENT STATEMENTS OR

18 CLAIMS.—

19 (1) CRIMINAL PENALTIES.—

20 (A) For purposes of section 287 of title 18,

21 United States Code (relating to false claims),

22 the Resolution Fund shall be considered an

23 agency of the United States and any officer or

24 employee of the Resolution Fund shall be con-
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1 sidered a person in the civil service of the Unit2 ed States.

3 (B) For purposes of section 1001 of title

4 18, United States Code (relating to false state5 ments or entries), the Resolution Fund shall be

6 considered an agency of the United States.

7 (2) CIVIL PENALTIES.—Officers and employees

8 of the Resolution Fund shall be considered officers

9 and employees of the United States for purposes of

10 section 3729 of title 31, United States Code (relat11 ing to false claims).

12 SEC. 803. FINANCIAL STATEMENTS, AUDITS, INVESTIGA13 TIONS AND INSPECTIONS.

14 (a) IN GENERAL.—The financial statements of the

15 Resolution Fund shall be prepared in accordance with gen16 erally accepted accounting principles and shall be audited

17 annually by an independent certified public accountant in

18 accordance with the auditing standards issued by the

19 Comptroller General. Such auditing standards shall be

20 consistent with the private sector’s generally accepted au21 diting standards.

22 (b) INVESTIGATIONS AND OTHER AUDITS.—The In23 spector General of the Environmental Protection Agency

24 is authorized to conduct such audits and investigations as

25 the Inspector General deems necessary or appropriate.
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1 For purposes of the preceding sentence, the provisions of

2 the Inspector General Act of 1978 shall apply to the Reso3 lution Fund and to the Inspector General to the same ex4 tent as they apply to the Environmental Protection

5 Agency.

6 SEC. 804. STAY OF PENDING LITIGATION.

7 (a) IN GENERAL.—

8 (1) Except as provided in this section, enact9 ment of this title operates as a stay, applicable to all

10 persons other than the United States, of the com11 mencement or continuation, including the issuance

12 or employment of process or service of any pleading,

13 motion, or notice, of any judicial, administrative, or

14 other action with respect to claims for indemnity or

15 other claims arising from a contract for insurance

16 described in section 802(g)(2)(A)(ii) concerning in17 surance coverage for eligible costs as defined in sec18 tion 802(g)(2)(B)(i).

19 (2) Nothing in paragraph (1) shall be construed

20 to apply to the extent the issuance or employment

21 of process or service of any pleading, motion, or no22 tice, of any judicial, administrative, or other action

23 with respect to claims for indemnity or other claims

24 does not concern eligible costs (as defined in section

25 802(g)(2)(B)(i)) or a contract for insurance de-
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1 scribed in section 802(g)(2)(A)(ii). An eligible per2 son (as defined in section 802(g)(2)(A)) may move

3 to sever claims not involving eligible costs from

4 claims involving eligible costs and may proceed with

5 the prosecution of claims not involving eligible costs.

6 (b) TERMINATION OF STAY.—

7 (1) PENDING OFFER OF RESOLUTION.—The

8 stay established by subsection (a) shall terminate

9 with respect to an eligible person upon the earlier

10 of—

11 (A) the rejection of a resolution offer by

12 such eligible person pursuant to section

13 802(g)(5)(A); or

14 (B) the failure of the Resolution Fund to

15 timely fulfill the terms of a resolution offer ac16 cepted by such eligible person.

17 (2) EXPIRATION OF RESOLUTION OFFERS.—No

18 stay established by subsection (a) shall be effective

19 after May 31, 2000.

20 (c) OTHER STAYS.—Nothing in this section shall be

21 construed to limit or affect in any way the discretion of

22 any judicial, administrative, or other entity to maintain

23 or impose a stay that is not required by subsection (a)

24 but that will otherwise serve the ends of justice by staying

25 a judicial, administrative or other action pending the ac-
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1 ceptance or rejection of a resolution offer pursuant to sec2 tion 802(g)(5)(A).

3 (d) AUTHORITY OF UNITED STATES UNAF4 FECTED.—Nothing in this section shall be construed to

5 limit or affect in any way the discretion or authority of

6 the United States or any party to commence or continue

7 an allocation process, cost recovery, or other action pursu8 ant to the authority of sections 101–122a of the Com9 prehensive Environmental Response, Compensation and

10 Liability Act (42 U.S.C. 9601–9622a).

11 SEC. 805. SUNSET PROVISIONS.

12 (a) AUTHORITY TO ACCEPT REQUESTS FOR RESO13 LUTION.—The authority of the Resolution Fund to accept

14 requests for resolution shall terminate after September 30,

15 1999.

16 (b) AUTHORITY TO OFFER RESOLUTIONS.—The au17 thority of the Resolution Fund to offer resolutions to eligi18 ble persons shall terminate after March 31, 2000.

19 (c) CONTINUING OBLIGATIONS.—Nothing in this sec20 tion shall be construed to limit or affect in any way the

21 authority of the Resolution Fund—

22 (1) to make payments pursuant to resolution

23 offers made on or before March 31, 2000; or

24 (2) to reimburse insurers with respect to litiga25 tion commenced or continued in connection with a
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1 resolution offer made on or before March 31, 2000,

2 that was rejected by an eligible person or not acted

3 upon by an eligible person as provided in section

4 802(g)(5)(A).

5 SEC. 806. SOVEREIGN IMMUNITY OF THE UNITED STATES.

6 No obligation or liability of the Resolution Fund shall

7 constitute an obligation or liability of the United States,

8 or of any department, agency, instrumentality, officer, or

9 employee thereof. No person shall have a cause of action

10 of any kind against the United States, or any department,

11 agency, instrumentality, officer, or employee thereof with

12 respect to any obligation, liability, or activity of the Reso13 lution Fund.

14 SEC. 807. EFFECTIVE DATE.

15 The provisions of this title shall become effective on

16 the date of enactment of this title.

17 TITLE IX—TAXES

18 SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE

19 CODE OF 1986.

20 (a) Section 59A(e)(1) of the Internal Revenue Code

21 of 1986 (26 U.S.C. 59A(e)(1)) is amended by striking

22 ‘‘January 1, 1996’’ and inserting instead ‘‘January 1,

23 2001’’.

24 (b) Section 4611(e) of the Internal Revenue Code of

25 1986 (26 U.S.C. 4611(e)) is amended—
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1 (1) in paragraph (1) by striking ‘‘December 31,

2 1986’’ and inserting instead ‘‘December 31, 1995’’;

3 (2) in paragraph (2)—

4 (A) by striking ‘‘December 31, 1993 or

5 December 31, 1994’’ and inserting instead

6 ‘‘December 31, 1998 or December 31, 1999’’;

7 (B) by striking ‘‘December 31, of 1994 or

8 1995, respectively’’ and inserting instead ‘‘De9 cember 31 of 1999 or 2000, respectively’’; and

10 (C) by striking ‘‘1994 or 1995’’ the last

11 place it appears and inserting instead ‘‘1999 or

12 2000’’;

13 (3) in paragraph (3)(A), by striking ‘‘January

14 1, 1987, and ending December 31, 1995’’ and in15 serting instead ‘‘January 1, 1996, and ending De16 cember 31, 2000’’; and

17 (4) in paragraph (3)(B)—

18 (A) in the title thereof, by striking ‘‘Janu19 ary 1, 1996’’ and inserting ‘‘January 1, 2001’’;

20 and

21 (B) by striking ‘‘Fund before January 1,

22 1996’’ and inserting instead ‘‘Fund before Jan23 uary 1, 2001’’.
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1 SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON

2 INSURANCE COMPANIES.

3 (a) IN GENERAL.—The Internal Revenue Code of

4 1986 is amended by inserting after section the follow5 ing new section:

6 ‘‘SEC. . ENVIRONMENTAL FEES AND ASSESSMENTS ON IN7 SURANCE COMPANIES.

8 [RESERVED]

9 (b) CLERICAL AMENDMENT.—The table of sections

10 for chapter of the Internal Revenue Code of 1986

11 is amended by inserting after the item relating to section

12 the following:

‘‘Sec. . Environmental Fees and Assessments on Insurance

Companies.’’.

13 SEC. 903. FUNDING PROVISIONS FOR ENVIRONMENTAL IN14 SURANCE RESOLUTION FUND.

15 (a) IN GENERAL.—

16 (1) Except as provided in section 802(f)(7) of

17 this Act, all expenditures of the Resolution Fund

18 shall be paid out of the fees and assessments im19 posed by section of the Internal Revenue Code.

20 (2) Except as may be expressly authorized by

21 the Secretary of the Treasury, all funds of the Reso22 lution Fund shall be maintained in the Treasury of

23 the United States. The Secretary may provide for

24 the disbursement of such funds to the Resolution
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1 Fund or on behalf of the Resolution Fund under

2 such procedures, terms and conditions as the Sec3 retary may prescribe.

4 (b) TRANSFER TO RESOLUTION FUND.—The Sec5 retary of the Treasury shall transfer to the Resolution

6 Fund on October 1 of fiscal years 1995, 1996, 1997, 1998

7 and 1999, an amount equal to the fees and assessments

8 anticipated to be collected pursuant to section of the

9 Internal Revenue Code of 1986 during the then current

10 fiscal year.

11 (c) ADJUSTMENTS.—In each succeeding fiscal year

12 the Secretary of the Treasury shall adjust the amounts

13 transferred pursuant to paragraph (2) to reflect actual

14 collections of fees and assessments during the prior fiscal

15 year, except that with respect to the transfer made on Oc16 tober 1, 1999, the Resolution Fund shall reimburse the

17 Secretary the amount of such transfer subsequently deter18 mined by the Secretary to have exceeded actual collections

19 of fees and assessments during such fiscal year.

20 SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.

21 The Resolution Fund, including its capital, reserves,

22 surplus, security holdings, and income shall be exempt

23 from all taxation now or hereafter imposed by the United

24 States (including any territory, dependency or possession
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1 thereof) or any State, county, municipality or local taxing

2 authority.

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