II

103D CONGRESS

2D SESSION S. 1834

[Report No. 103–349]

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

AUGUST 19 (legislative day, AUGUST 18), 1994

Reported by Mr. BAUCUS, with an amendment

[Omit the part struck through and insert the part printed in italic]

AUGUST 19 (legislative day, AUGUST 18), 1994

Referred to the Committee on Finance pursuant to the order of February 7,

1994

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,
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

3 ‘‘Superfund Reform Act of 1994’’.

4 (b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

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.
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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.

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—
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1 (a) inform citizens and elected officials at all

2 levels of government of the existence and status of

3 facilities listed on the National Priority List and

4 contaminated sites identified on State Registries (as

5 established by section 207 of this Act);

6 (b) provide citizens with information regarding

7 the Superfund identification and cleanup process

8 and maintain lists of technical, health and other rel9 evant experts licensed or located in the state who are

10 available to assist the community;

11 (c) ensure wide dissemination of and access to

12 information in a manner that is easily understood by

13 the community, considering any unique cultural

14 needs of the community, including presentation of

15 information orally and distribution of information in

16 languages other than English; and

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

18 considers the views of affected communities.

19 SEC. 102. EARLY, DIRECT AND MEANINGFUL COMMUNITY

20 PARTICIPATION.

21 (a) Section 117(e)(1) of the Comprehensive Environ22 mental Response, Compensation, and Liability Act of

23 1980, referred to in this Act as ‘‘the Act’’ (42 U.S.C.

24 9617) is amended by amending the first sentence to read

25 as follows:
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1 ‘‘(1) AUTHORITY.—Subject to such amounts as

2 are provided in appropriations Acts and in accord3 ance with rules promulgated by the President, the

4 President may make grants or services available to

5 any group of individuals which may be affected by

6 a release or threatened release of a hazardous sub7 stance or pollutant, or contaminant at or from a fa8 cility where there is significant response action

9 under this Act including, a site assessment, remedial

10 investigation/feasibility study, or removal or remedial

11 action.’’.

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

13 paragraph (2) and inserting in the following:

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

15 services may not exceed $50,000 for a single recipi16 ent of grants or services. The President may waive

17 the $50,000 limitation in any case where such waiv18 er is necessary to carry out the purposes of this sub19 section. Each recipient of grants or services shall be

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

21 contribute at least 20 percent of the total costs of

22 the technical assistance for which such grants and

23 services are made. The President may waive the 20

24 percent contribution requirement if the grants or

25 services recipient demonstrates financial need, and
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1 such waiver is necessary to facilitate public partici2 pation in the selection of remedial action at the fa3 cility. Not more than one award or grants or serv4 ices may be made with respect to a single facility,

5 but the grants or services may be renewed to facili6 tate public participation at all stages of remedial ac7 tion.’’.

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

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

10 subsections:

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

12 INVOLVEMENT.—The President shall provide for early, di13 rect and meaningful community involvement in each sig14 nificant phase of response activities taken under this Act.

15 The President shall provide the community with access to

16 information necessary to develop meaningful comments on

17 critical decisions regarding facility characterization, risks

18 posed by the facility, and selection of removal and reme19 dial actions. The President shall consider the views, pref20 erences and recommendations of the affected community

21 regarding all aspects of the response activities, including

22 the acceptability to the community of achieving back23 ground levels.

24 ‘‘(g) INFORMATION TO BE DISSEMINATED.—In addi25 tion to other information the President considers appro-
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1 priate, the President shall ensure that the community is

2 provided information on the following:

3 ‘‘(1) the availability of a Technical Assistance

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

5 completing the TAG application, and the details of

6 the application process;

7 ‘‘(2) the possibility (where relevant) that mem8 bers of a community may qualify to receive an alter9 native water supply or relocation assistance;

10 ‘‘(3) the Superfund process, and rights of pri11 vate citizens and public interest or community

12 groups;

13 ‘‘(4) the potential for or existence of a Commu14 nity Working Group (CWG) established under sub15 section (i) (as added by the Superfund Reform Act

16 of 1994); and

17 ‘‘(5) an objective description of the facility’s lo18 cation and characteristics, the contaminants present,

19 the known exposure pathways, and the steps being

20 taken to assess the risk presented by the facility.

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

22 practicable after site discovery, the President shall provide

23 regular, direct, and meaningful community involvement in

24 all phases of the response activities at the facility, includ25 ing—
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1 ‘‘(1) SITE ASSESSMENT.—Whenever practicable,

2 during the site assessment, the President shall solicit

3 and evaluate the concerns and interests of the com4 munity likely affected by the facility. The evaluation

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

6 minimum of one public meeting, written responses to

7 significant concerns, and other appropriate

8 participatory activities.

9 ‘‘(2) REMEDIAL INVESTIGATION/FEASIBILITY

10 STUDY.—During the remedial investigation and fea11 sibility study, the President shall solicit the views

12 and preferences of the community on the remedi13 ation and disposition of the hazardous substances,

14 pollutants or contaminants at the site. The commu15 nity’s views and preferences shall be described in the

16 remedial investigation and feasibility study and con17 sidered in the development of remedial alternatives

18 for the facility.’’.

19 SEC. 103. COMMUNITY WORKING GROUPS.

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

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

22 following new subsection:

23 ‘‘(i) COMMUNITY WORKING GROUPS.—

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

25 President shall provide the opportunity to establish
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1 a representative public forum, known as a Commu2 nity Working Group (CWG), to achieve direct, regu3 lar and meaningful consultation with community

4 members throughout all stages of a response action.

5 The President shall consult with the CWG at each

6 significant phase of the remedial process.

7 ‘‘(2) INFORMATION CLEARINGHOUSE.—The

8 CWG shall serve as a facility information clearing9 house for the community. In addition to maintaining

10 records of facility status and lists of active citizen

11 groups and available experts, the CWG shall also be

12 a repository for health assessment information and

13 other related health data.

14 ‘‘(3) LAND USE RECOMMENDATIONS.—To es15 tablish land use expectations more reliably, and ob16 tain greater community support for remedial deci17 sions affecting future land use, the President shall

18 consult with the CWG on a regular basis throughout

19 the remedy selection process regarding reasonably

20 anticipated future use of land at the facility. The

21 CWG may offer recommendations to the President

22 at any time during the response activities at the fa23 cility on the reasonably anticipated future use of

24 land at the facility, taking into account development

25 possibilities and future waste management needs.
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1 The President shall not be bound by any rec2 ommendation of the CWG. However, when the CWG

3 achieves substantial agreement on the reasonably

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

5 President shall give substantial weight to that rec6 ommendation. In cases where there is substantive

7 disagreement within the CWG over a recommenda8 tion regarding the reasonably anticipated future use

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

10 reconcile the differences. In the event of continued

11 substantive disagreement, substantial weight shall be

12 given to the views of the residents of the affected

13 community. Should the President make a determina14 tion that is inconsistent with a CWG recommenda15 tion on the reasonably anticipated future use of land

16 at the facility, the President shall issue a written

17 reason for the inconsistency.

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

19 exceed twenty persons. CWG members shall serve

20 without pay. Nominations for CWG membership

21 shall be solicited and accepted by the President. Se22 lection of CWG members shall be made by the Presi23 dent. In selecting citizen participants for the CWG,

24 the President shall provide notice and an oppor25 tunity to participate in CWGs to persons who poten-
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1 tially are affected by facility contamination in the

2 community. Special efforts shall be made to ensure

3 that the composition of CWGs reflects a balanced

4 representation of all those interested in facility re5 mediation. In general, it shall be appropriate for the

6 President to offer members of the following groups

7 representation on a CWG—

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

9 on or have property immediately adjacent to or

10 near the facility, or who may be directly af11 fected by releases from the facility, with a mini12 mum of one representative of the recipient a

13 grant for technical assistance, if any, awarded

14 under subsection (e);

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

16 as close to the facility as those in the group

17 identified in subparagraph (A), may be poten18 tially affected by releases from the facility;

19 ‘‘(C) Members of the local medical commu20 nity who have resided in the community for at

21 least five years;

22 ‘‘(D) Representatives of Indian tribes;

23 ‘‘(E) Representatives of citizen, environ24 mental or public interest groups with members

25 residing in the community;
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1 ‘‘(F) Local government officials;

2 ‘‘(G) Workers at the facility who will be in3 volved in actual cleanup operations;

4 ‘‘(H) Persons at the facility during re5 sponse actions;

6 ‘‘(I) Facility owners and the significant

7 PRPs who, whenever practicable, represent a

8 balance of interests; and,

9 ‘‘(J) Members of the local business com10 munity.

11 ‘‘(5) OTHER COMMUNITY VIEWS.—The exist12 ence of a CWG shall not affect or diminish any

13 other obligation of the President to consider the

14 views of any person in selecting response actions

15 under this Act.’’.

16 SEC. 104. CITIZEN INFORMATION AND ACCESS OFFICES.

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

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

19 following new subsection:

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

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

22 Administrator shall ensure that an independent Citi23 zen Information and Access Office (CIAO) is estab24 lished in each state and on each tribal land affected

25 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-
25

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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

•S 1834 RCS1S

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.
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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-
35

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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
36

•S 1834 RCS1S

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
37

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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.’’.
39

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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.’’.
41

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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;
42

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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—
43

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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;
46

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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

•S 1834 RCS1S

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;
49

•S 1834 RCS1S

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

•S 1834 RCS1S

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 RCS1S

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 RCS1S

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

•S 1834 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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-
63

•S 1834 RCS1S

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

•S 1834 RCS1S

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

•S 1834 RCS1S

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

•S 1834 RCS1S

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

•S 1834 RCS1S

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—
70

•S 1834 RCS1S

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 RCS1S

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

•S 1834 RCS1S

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

•S 1834 RCS1S

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);
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•S 1834 RCS1S

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
75

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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
76

•S 1834 RCS1S

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-
77

•S 1834 RCS1S

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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•S 1834 RCS1S

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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•S 1834 RCS1S

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-
83

•S 1834 RCS1S

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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•S 1834 RCS1S

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—
87

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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-
93

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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
97

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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
98

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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-
110

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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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•S 1834 RCS1S

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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•S 1834 RCS1S

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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•S 1834 RCS1S

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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•S 1834 RCS1S

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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•S 1834 RCS1S

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
126

•S 1834 RCS1S

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-
127

•S 1834 RCS1S

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
128

•S 1834 RCS1S

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
129

•S 1834 RCS1S

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
130

•S 1834 RCS1S

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
131

•S 1834 RCS1S

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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•S 1834 RCS1S

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
133

•S 1834 RCS1S

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
134

•S 1834 RCS1S

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:
135

•S 1834 RCS1S

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’’.
136

•S 1834 RCS1S

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.
137

•S 1834 RCS1S

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-
138

•S 1834 RCS1S

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 RCS1S

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

•S 1834 RCS1S

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—
141

•S 1834 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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 RCS1S

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));
146

•S 1834 RCS1S

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—
147

•S 1834 RCS1S

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 RCS1S

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 RCS1S

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-
150

•S 1834 RCS1S

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-
151

•S 1834 RCS1S

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.—
152

•S 1834 RCS1S

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-
153

•S 1834 RCS1S

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
154

•S 1834 RCS1S

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.—
155

•S 1834 RCS1S

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-
156

•S 1834 RCS1S

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-
157

•S 1834 RCS1S

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-
158

•S 1834 RCS1S

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-
159

•S 1834 RCS1S

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-
160

•S 1834 RCS1S

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.
161

•S 1834 RCS1S

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-
162

•S 1834 RCS1S

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-
163

•S 1834 RCS1S

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
164

•S 1834 RCS1S

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
165

•S 1834 RCS1S

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
166

•S 1834 RCS1S

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-
167

•S 1834 RCS1S

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.
168

•S 1834 RCS1S

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-
169

•S 1834 RCS1S

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-
170

•S 1834 RCS1S

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
171

•S 1834 RCS1S

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 SECTION 1. SHORT TITLE.

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

19 of 1994’’.

20 SEC. 2. TABLE OF CONTENTS.

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

Sec. 1. Short title.

Sec. 2. Table of contents.

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

Liability Act of 1980.

TITLE I—COMMUNITY PARTICIPATION AND HUMAN HEALTH

Sec. 101. Public participation.

Sec. 102. Community Working Groups.

Sec. 103. Hazard ranking system.
172

•S 1834 RCS1S

Sec. 104. Health authorities.

Sec. 105. Determining health effects.

Sec. 106. Community health programs.

Sec. 107. Public health recommendations in remedial actions.

Sec. 108. Rights to participate.

Sec. 109. Transition.

TITLE II—STATE ROLES

Sec. 201. Delegated State response actions and authorized State response programs.

Sec. 202. State cost share.

Sec. 203. Siting.

Sec. 204. State Registry.

Sec. 205. Conforming and miscellaneous amendments.

Sec. 206. State role at Federal facilities.

TITLE III—VOLUNTARY ENVIRONMENTAL CLEANUP

Sec. 301. Short title.

Sec. 302. Findings and purpose.

Sec. 303. Definitions.

Sec. 304. Voluntary Cleanup Grant Program.

Sec. 305. Economic Redevelopment Credit Assistance Program.

Sec. 306. Regulations.

Sec. 307. Economic Redevelopment Revolving Fund.

Sec. 308. Authorizations of appropriations.

Sec. 309. Reports.

Sec. 310. Funding.

Sec. 311. Statutory construction.

TITLE IV—LIABILITY AND ALLOCATION

Sec. 401. Information gathering and access.

Sec. 402. Compliance with administrative orders.

Sec. 403. Limitations on 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.

Sec. 410. Clarification of liability for recycling transactions.

Sec. 411. Lender and fiduciary liability.

Sec. 412. Religious, charitable, scientific, or educational organizations.

Sec. 413. Working group.

Sec. 414. Indirect costs.

Sec. 415. Release of evidence.

Sec. 416. Contiguous properties.

TITLE V—REMEDY SELECTION AND CLEANUP STANDARDS

Sec. 501. Cleanup standards.

Sec. 502. Remedy selection.

Sec. 503. Miscellaneous amendments to section 121.

Sec. 504. Response authorities.

Sec. 505. Removal actions.
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•S 1834 RCS1S

Sec. 506. Transition.

TITLE VI—MISCELLANEOUS

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

facilities.

Sec. 602. Transfers of uncontaminated property.

Sec. 603. Agreements to transfer by deed.

Sec. 604. Alternative or innovative treatment technologies.

Sec. 605. Definitions.

Sec. 606. Conforming amendment.

Sec. 607. Response claims procedures.

Sec. 608. Small business ombudsman.

Sec. 609. Consideration of local government cleanup priorities in allocation of

oversight resources.

Sec. 610. Severability.

Sec. 611. Results-oriented cleanups.

Sec. 612. Innovative technologies for remedial action at Federal facilities.

Sec. 613. Notification.

Sec. 614. Certification of environmental training and certification organizations.

Sec. 615. Sense of the Committee concerning offsets from the corporate environmental income tax to pay for welfare reform.

TITLE VII—FUNDING

Sec. 701. Authorization of appropriations.

Sec. 702. Orphan share funding.

Sec. 703. Department of Health and Human Services.

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

Sec. 705. Authorization of appropriations from general revenues.

Sec. 706. Additional limitations.

Sec. 707. Uses of the Fund.

Sec. 708. Technical and conforming amendments.

TITLE VIII—ENVIRONMENTAL INSURANCE RESOLUTION FUND

Sec. 801. Short title.

Sec. 802. Definitions.

Sec. 803. Environmental Insurance Resolution Fund.

Sec. 804. Resolution offers.

Sec. 805. Documentation of claims and insurance coverage.

Sec. 806. Amount of resolution offers.

Sec. 807. Acceptance of resolution offer.

Sec. 808. Resolution payments.

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

Sec. 810. Financial controls; audits, investigations and inspections.

Sec. 811. Stay of pending litigation.

Sec. 812. Regulations.

Sec. 813. Court jurisdiction and penalties.

Sec. 814. Miscellaneous provisions.

Sec. 815. Reports.

Sec. 816. Effective date.

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

Sec. 818. Termination of Fund.
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•S 1834 RCS1S

TITLE IX—TAXES

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

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

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

Sec. 904. Resolution Fund not subject to tax.

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

4 Except as otherwise expressly provided, whenever in

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

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

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

8 other provision of the Comprehensive Environmental Re9 sponse, Compensation, and Liability Act of 1980 (com10 monly known as the ‘‘Superfund Act’’) (42 U.S.C. 9601 et

11 seq.).

12 TITLE I—COMMUNITY PARTICI13 PATION AND HUMAN HEALTH

14 SEC. 101. PUBLIC PARTICIPATION.

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

16 subsection (e) and inserting the following new subsections:

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

18 ‘‘(1) AUTHORITY.—In accordance with rules pro19 mulgated by the Administrator, the Administrator

20 may make grants available to any group of individ21 uals that may be affected by the release or threatened

22 release of hazardous substances or pollutants or con-
175

•S 1834 RCS1S

1 taminants at any facility on the State Registry or the

2 National Priorities List (referred to in this subsection

3 as ‘affected citizens’). Such grants shall be known as

4 Technical Assistance Grants. To ensure that the ap5 plication process for such grants is accessible to all af6 fected citizens, the Administrator shall periodically

7 review such process and, based on such review, shall

8 implement appropriate changes to the application

9 process to improve access.

10 ‘‘(2) SPECIAL RULES.—No matching contribu11 tion shall be required for a Technical Assistance

12 Grant. The Administrator shall make all or a portion

13 of the grant amount available to the grant recipient

14 in advance of the total expenditures to be covered by

15 the grant. Such portion shall be not less than $5,000

16 or 10 percent of the grant amount, whichever is great17 er.

18 ‘‘(3) LIMIT PER FACILITY.—Not more than 1

19 grant may be made under this subsection with respect

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

21 facilitate public participation at all stages of response

22 action. Limits shall be established with respect to the

23 number of years for which the grants may be made

24 available based on the duration, type, and extent of

25 response activity at a facility.
176

•S 1834 RCS1S

1 ‘‘(4) FUNDING AVAILABILITY.—Subject to the

2 limitations provided in paragraph (5), 1 or more of

3 the grants shall be made available to affected citizens

4 who live in communities containing facilities on the

5 State Registry not yet listed on the National Prior6 ities List as of the date on which the grant is award7 ed.

8 ‘‘(5) FUNDING LIMIT.—Not more than 4 percent

9 of the funds made available for carrying out this Act

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

subsection in that fiscal year and not more than 1 11 ⁄8

12 of the funds used under this subsection for a fiscal

13 year may be used for grants with respect to facilities

not listed on the National Priorities List. If such 1 14 ⁄8

15 portion is not needed for such facilities, such portion

16 may be used for grants with respect to facilities listed

17 on the National Priorities List.

18 ‘‘(6) FUNDING AMOUNT.—The initial amount of

19 any grant made under this subsection may not exceed

20 $50,000 for a single grant recipient. The Adminis21 trator shall increase the initial amount of the grant,

22 as appropriate, to reflect the complexity of the re23 sponse action, the nature and extent of contamination

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

25 total needs as requested by the grant recipient, the
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•S 1834 RCS1S

1 size and diversity of the affected population, and the

2 ability of the grant recipient to identify and raise

3 funds from other sources.

4 ‘‘(7) AUTHORIZED GRANT ACTIVITIES.—

5 ‘‘(A) INTERPRETATION OF INFORMATION.—

6 A grant awarded under this subsection may be

7 used to obtain technical assistance in interpret8 ing information with regard to—

9 ‘‘(i) the nature of the hazard;

10 ‘‘(ii) the remedial investigation and

11 feasibility study;

12 ‘‘(iii) the record of decision;

13 ‘‘(iv) the selection, design, and con14 struction of the remedial action;

15 ‘‘(v) operation and maintenance; or

16 ‘‘(vi) the removal activities;

17 at such facility.

18 ‘‘(B) ADDITIONAL ACTIVITIES.—A grant

19 awarded under this subsection also may be

20 used—

21 ‘‘(i) to obtain technical assistance in

22 gathering and interpreting information

23 used to rank facilities according to the haz24 ard ranking system;
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•S 1834 RCS1S

1 ‘‘(ii) for gathering information to as2 sess a remedy selection decision;

3 ‘‘(iii) to hire health and safety experts

4 to advise affected citizens on health assess5 ment and contamination data gathering ef6 forts and response activities;

7 ‘‘(iv) to hire a community liaison to

8 potentially responsible parties and govern9 ment agencies;

10 ‘‘(v) to hire experts to file comments

11 with governmental agencies and generate

12 other documents as necessary to ensure full

13 participation by the grant recipient;

14 ‘‘(vi) to hire experts to provide input

15 into the design of any health studies that a

16 government agency performs; and

17 ‘‘(vii) for training funds for interested

18 affected citizens to enable them to more ef19 fectively participate in the remedy selection

20 process.

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

22 this subsection may not be used for the purpose

23 of collecting field sampling data.

24 ‘‘(8) GRANT GUIDELINES.—Not later than 90

25 days after the date of enactment of the Superfund Re-
179

•S 1834 RCS1S

1 form Act of 1994, the Administrator shall develop and

2 publish guidelines concerning management of grants

3 awarded under this subsection. Technical or other ex4 perts hired by recipients of such grants shall be hired

5 by such recipients under the guidelines.

6 ‘‘(f) IMPROVING CITIZEN AND COMMUNITY PARTICIPA7 TION IN THE SUPERFUND DECISIONMAKING PROCESS.—

8 ‘‘(1) IN GENERAL.—

9 ‘‘(A) MEETINGS AND NOTICE.—In order to

10 provide an opportunity for meaningful public

11 participation in every significant phase of re12 sponse activities under this Act, the President

13 shall provide the opportunity for public meetings

14 and publish a notice of such meetings before or

15 during performance of each of the following:

16 ‘‘(i) A health assessment and a pre17 liminary assessment and site inspection, as

18 appropriate. If a citizen requests such a

19 public meeting and the President deter20 mines that such a meeting is not appro21 priate at the preliminary assessment and

22 site inspection stage, the President shall

23 provide adequate public notice of that deter24 mination.
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1 ‘‘(ii) A remedial investigation and fea2 sibility study.

3 ‘‘(iii) An announcement of the pre4 ferred remedial alternative.

5 ‘‘(iv) The completion of a work plan

6 for a remedial investigation and feasibility

7 study, for a remedial design, or for a reme8 dial action.

9 ‘‘(B) INFORMATION.—The public meetings

10 shall be designed to obtain information from the

11 community, and disseminate information to the

12 community, with respect to the facility involved

13 concerning the President’s facility activities and

14 pending decisions.

15 ‘‘(2) PARTICIPANTS AND SUBJECT.—The Presi16 dent also shall provide reasonable notice of an oppor17 tunity for public participation in meetings in

18 which—

19 ‘‘(A) the participants include Federal offi20 cials (or State officials, where the State is con21 ducting response activities under an authorized

22 program or through facility referral) with au23 thority to make significant decisions affecting a

24 response action, and any other person or per25 sons, unless the other person or persons are all
181

•S 1834 RCS1S

1 coregulators that are not potentially responsible

2 parties, or are government contractors; and

3 ‘‘(B) the subject of the meeting involves dis4 cussions directly affecting either—

5 ‘‘(i) a legally enforceable work plan

6 document, or any amendment to the docu7 ment, for a removal, remedial investigation,

8 feasibility study, remedial design, or reme9 dial action, for a facility on the National

10 Priorities List; or

11 ‘‘(ii) the final package of information

12 on which the Administrator will base a haz13 ard ranking system score for a facility.

14 ‘‘(3) LIMITATION.—Nothing in this subsection

15 shall be construed—

16 ‘‘(A) to provide for public participation in,

17 or otherwise affect, any negotiation, meeting, or

18 other discussion, solely concerning potential li19 ability or settlement of potential liability, wheth20 er prior to or following the commencement of

21 litigation or administrative enforcement action;

22 ‘‘(B) to provide for public participation in,

23 or otherwise affect, any negotiation, meeting, or

24 other discussion, attended exclusively by rep25 resentatives of the United States or any of the
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•S 1834 RCS1S

1 departments, agencies, or instrumentalities of the

2 United States, with attorneys representing the

3 United States, or any of the departments, agen4 cies, or instrumentalities of the United States; or

5 ‘‘(C) to waive, compromise, or affect any

6 privilege that may be applicable to a commu7 nication related to an activity described in sub8 paragraph (A) or (B).

9 ‘‘(4) EVALUATION.—To the extent practicable, be10 fore and during the health assessment and site inspec11 tion, the President shall solicit and evaluate concerns,

12 interests, and information from the community. The

13 evaluation shall include, as appropriate—

14 ‘‘(A) face-to-face community surveys to

15 identify the location of private drinking water

16 wells, historic and current or potential use of

17 water, and other environmental resources in the

18 community;

19 ‘‘(B) a public meeting;

20 ‘‘(C) written responses to significant con21 cerns; and

22 ‘‘(D) other appropriate participatory ac23 tivities.

24 ‘‘(5) VIEWS AND PREFERENCES.—During the re25 medial investigation and feasibility study, the Presi-
183

•S 1834 RCS1S

1 dent shall solicit the views and preferences of the com2 munity on the remediation and disposition of hazard3 ous substances or pollutants or contaminants at the

4 facility. The views and preferences of the community

5 shall be described in the remedial investigation and

6 feasibility study and considered in the screening of re7 medial alternatives for the facility.

8 ‘‘(6) ALTERNATIVES.—Members of the commu9 nity may propose remedial alternatives to the Presi10 dent, and the President shall consider such alter11 natives in the same manner as the President consid12 ers alternatives proposed by potentially responsible

13 parties.

14 ‘‘(7) INFORMATION.—The President, with the as15 sistance of the Citizen Information and Access Office

16 (as provided for in subsection (h)) and a Community

17 Working Group (referred to in this Act as a ‘Commu18 nity Working Group’) (as provided for in subsection

19 (g)) where a Community Working Group exists, shall

20 provide information to the community and seek com21 ment from the community throughout all significant

22 phases of the response action at the facility. The

23 President shall ensure that information gathered from

24 the community during community outreach efforts

25 reaches appropriate technical staff in a timely and ef-
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•S 1834 RCS1S

1 fective manner. The President also shall ensure rea2 sonable written or other appropriate responses to such

3 information.

4 ‘‘(8) NONPRIVILEGED INFORMATION.—The Presi5 dent shall make all nonprivileged information relat6 ing to the facility available to the public throughout

7 all phases of response action at the facility. Such in8 formation shall be made available to the public for in9 spection and copying without the need to file a formal

10 request, subject to reasonable service charges as appro11 priate.

12 ‘‘(9) PRESENTATION.—

13 ‘‘(A) DOCUMENTS.—The President, in car14 rying out responsibilities under this Act, shall

15 ensure that the presentation of information on

16 risk is complete and informative. To the extent

17 feasible, documents made available to the general

18 public that purport to describe the degree of risk

19 to human health shall, at a minimum, state—

20 ‘‘(i) the upperbound and lowerbound

21 estimates of the risk;

22 ‘‘(ii) the population or populations ad23 dressed by any estimates of the risk;

24 ‘‘(iii) the expected risk or central esti25 mate of the risk for the specific population;
185

•S 1834 RCS1S

1 ‘‘(iv) the reasonable range or other de2 scription of uncertainties in the assessment

3 process; and

4 ‘‘(v) the assumptions that form the

5 basis for any estimates of such risk posed by

6 the facility and a brief explanation of the

7 assumptions.

8 ‘‘(B) COMPARISONS.—To the extent prac9 tical and appropriate, the President, in carrying

10 out such responsibilities, shall provide compari11 sons of the level of risk from hazardous sub12 stances found at the facility to comparable levels

13 of risk from those hazardous substances ordi14 narily encountered by the general public through

15 other sources of exposure.

16 ‘‘(10) REQUIREMENTS.—Notwithstanding any

17 other provision of this subsection, in the case of a re18 moval action taken in accordance with section 104

19 that is expected to extend beyond 180 days, and in

20 any case in which implementation of a removal ac21 tion is expected to obviate or obviates the need to con22 duct a long-term remedial action, the removal action

23 shall achieve the protective concentration levels and

24 other standards specified in subsections (b) and (d) of

25 section 121, and the Administrator shall, to the maxi-
186

•S 1834 RCS1S

1 mum extent practicable, allow for public participa2 tion in accordance with the requirements of this sec3 tion. In the case of all other removal actions, the Ad4 ministrator may provide the community with notice

5 of the anticipated removal action and a public com6 ment period, as appropriate.’’.

7 SEC. 102. COMMUNITY WORKING GROUPS.

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

9 after subsection (f) (as added by section 101) the following

10 new subsections:

11 ‘‘(g) COMMUNITY WORKING GROUPS.—

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

13 President shall facilitate the establishment of a rep14 resentative public forum in the form of a Community

15 Working Group, to achieve direct, regular, and mean16 ingful consultation with all interested parties

17 throughout all stages of a response action whenever—

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

19 will be helpful to achieve the purposes of this

20 Act; or

21 ‘‘(B) at least 50 citizens, or at least 20 per22 cent, of the population of the community petition

23 for a Community Working Group to be estab24 lished.
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•S 1834 RCS1S

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

2 Group shall provide information and views to the

3 President, and, as appropriate, any or all of the fol4 lowing:

5 ‘‘(A) The Secretary of Health and Human

6 Services.

7 ‘‘(B) State regulatory agencies.

8 ‘‘(C) Federal and State natural resource

9 trustees.

10 ‘‘(D) Potentially responsible parties con11 ducting response actions.

12 ‘‘(E) Local government and local public

13 health agencies.

14 The information and views reported shall address the

15 various subjects related to facility remediation, in16 cluding facility health studies, potential remedial al17 ternatives, and selection and implementation of reme18 dial and removal actions. The Community Working

19 Group shall attempt to achieve consensus among its

20 members before reporting the views to agencies or po21 tentially responsible parties. In cases in which con22 sensus cannot be reached, the Community Working

23 Group shall describe the divergent views of the mem24 bers of the group.
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•S 1834 RCS1S

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

2 greater community support for remedial decisions af3 fecting future land use, the President shall consult

4 with the Community Working Group and appropriate

5 local governing entities and local planning entities on

6 a regular basis throughout the remedy selection proc7 ess regarding the reasonably anticipated future use of

8 land at the facility and any institutional controls re9 quired to ensure that land use determinations remain

10 in effect. The Community Working Group may offer

11 recommendations on the reasonably anticipated fu12 ture use of land at the facility to the President at any

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

14 In making the land use recommendation, the Commu15 nity Working Group shall consider, at a minimum,

16 future facility waste management needs, applicable

17 local zoning and land use plans, and the factors de18 scribed in section 121(b)(2). The President shall not

19 be bound by any recommendation of the Community

20 Working Group. The President shall give substantial

21 weight to the Community Working Group’s land use

22 recommendation when the Community Working

23 Group achieves consensus on the reasonably antici24 pated future use of land at the facility. In cases in

25 which there is substantive disagreement within the
189

•S 1834 RCS1S

1 Community Working Group over a recommendation

2 regarding the reasonably anticipated future use of

3 land at the facility, the President shall make reason4 able efforts to reconcile the differences. In the event of

5 continued substantive disagreement, substantial

6 weight shall be given to the views of local residents.

7 Should the President make a determination that is

8 inconsistent with a consensus Community Working

9 Group recommendation on the reasonably expected fu10 ture use of land at the facility, the President shall

11 issue a written explanation for the inconsistency.

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

13 the exception of land use recommendations, input re14 ceived from the Community Working Groups shall be

15 considered by the President to be of equal weight with

16 the advice received from the Technical Assistance

17 Grant recipients and other community members.

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

19 Members shall serve on the Community Working

20 Group without pay. Membership on the Community

21 Working Group shall not exceed 20 persons. The

22 President shall solicit and accept nominations for the

23 Community Working Group membership. Ultimate

24 selection of Community Working Group members

25 shall be made by the President after consultation with
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•S 1834 RCS1S

1 the Citizen Information and Access Office as provided

2 for in subsection (h). The President shall also provide

3 notice and opportunity to apply for membership in

4 the Community Working Group to persons who are or

5 historically have been disproportionately affected by

6 facility contamination in the community. Each Com7 munity Working Group shall, to the extent prac8 ticable, reflect the composition of the community and

9 the diversity of interest. Local residents shall, to the

10 extent practicable, comprise no less than 50 percent of

11 the total membership of the Community Working

12 Group. In general, the President shall allow members

13 of each of the following groups representation on a

14 Community Working Group:

15 ‘‘(A) Persons residing or owning residential

16 property near a facility or persons who may be

17 directly affected by the releases from the facility.

18 At least 1 person in this group shall represent

19 the Technical Assistance Grant recipient if such

20 a grant has been awarded under subsection (e)

21 with respect to the facility.

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

23 owning residential property near the facility,

24 may be affected by releases from the facility.
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•S 1834 RCS1S

1 ‘‘(C) Members of the local medical commu2 nity practicing in the community.

3 ‘‘(D) Representatives of local Indian tribes

4 or Indian communities.

5 ‘‘(E) Local representatives of citizen, envi6 ronmental, or public interest groups with mem7 bers residing in the community.

8 ‘‘(F) Local government, which may include

9 pertinent city or county governments, or both,

10 and any other governmental unit that regulates

11 land use in the vicinity of the facility.

12 ‘‘(G) Workers at the facility who will be in13 volved in response operations.

14 ‘‘(H) Workers employed at the facility dur15 ing facility operation.

16 ‘‘(I) Facility owners and local representa17 tives of the potentially responsible parties who

18 represent, wherever practicable, a balance of po19 tentially responsible party interests.

20 ‘‘(J) Members of the local business commu21 nity.

22 ‘‘(6) SUPPORT FOR COMMUNITY WORKING

23 GROUPS.—The President shall provide administrative

24 services and meeting facilities for Community Work25 ing Groups. The President may make grants to Com-
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•S 1834 RCS1S

1 munity Working Groups to assist the groups in car2 rying out activities that the Community Working

3 Groups are authorized to carry out under this Act.

4 The Environmental Protection Agency, the Secretary

5 of Health and Human Services, and the State in

6 which the facility is located, as appropriate, may

7 participate, at the request of the Community Working

8 Group, in Community Working Group meetings to

9 provide information and technical expertise, but shall

10 not be members of the Community Working Group.

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

12 a Community Working Group shall not diminish any

13 other obligation of the President to consider the views

14 of any person in selecting response actions under this

15 Act.

16 ‘‘(h) CITIZEN INFORMATION AND ACCESS GRANT PRO17 GRAM.—

18 ‘‘(1) ESTABLISHMENT OF CITIZEN INFORMATION

19 AND ACCESS OMBUDSMAN OFFICE.—

20 ‘‘(A) OFFICE.—The Administrator shall es21 tablish a Citizen Information and Access Om22 budsman Office in—

23 ‘‘(i) the Office of Environmental Jus24 tice in the national headquarters office of

25 the Environmental Protection Agency; and
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•S 1834 RCS1S

1 ‘‘(ii) each regional office of the agency.

2 ‘‘(B) OMBUDSMAN.—Each Citizen Informa3 tion and Access Ombudsman Office described in

4 subparagraph (A) shall be headed by a Citizen

5 Information and Access Ombudsman (referred to

6 in this subsection as an ‘Ombudsman’).

7 ‘‘(C) DUTIES.—Each Ombudsman in a re8 gional office shall—

9 ‘‘(i) assist the Administrator in ad10 ministering the grant program established

11 under this subsection with respect to each

12 State in the region;

13 ‘‘(ii) carry out the functions described

14 in paragraph (3) for each State in the re15 gion unless the Administrator awards a

16 grant for the State under paragraph (2);

17 and

18 ‘‘(iii) provide the information and de19 scriptions specified in paragraph (3) to the

20 Citizen Information and Access Offices in

21 the region.

22 ‘‘(2) GRANTS.—

23 ‘‘(A) IN GENERAL.—Subject to such

24 amounts as are provided in appropriations Acts,

25 and in accordance with regulations established
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•S 1834 RCS1S

1 by the Administrator under subparagraph (D),

2 the Administrator shall award grants to eligible

3 groups within States to enable the groups to es4 tablish Citizen Information and Access Offices

5 and carry out the functions described in para6 graph (3) in the States in accordance with the

7 requirements of this subsection.

8 ‘‘(B) ELIGIBLE GROUPS.—The Adminis9 trator shall award grants to groups that meet the

10 requirements specified in the regulations estab11 lished under subparagraph (D).

12 ‘‘(C) APPLICATION.—To be eligible to re13 ceive a grant under this paragraph, a group

14 shall submit to the Administrator an application

15 at such time, in such manner, and containing

16 such information as the Administrator may re17 quire, including, at a minimum, a budget and

18 work plan for the activities to be carried out

19 under the grant.

20 ‘‘(D) REGULATIONS FOR AWARDING

21 GRANTS.—

22 ‘‘(i) IN GENERAL.—The Administrator

23 shall issue regulations establishing proce24 dures and criteria for awarding grants

25 under this paragraph.
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•S 1834 RCS1S

1 ‘‘(ii) PROCEDURES.—Such regulations

2 shall, at a minimum, require that the Ad3 ministrator, prior to awarding a grant

4 under this paragraph—

5 ‘‘(I) shall consult with the Gov6 erning Board; and

7 ‘‘(II) shall comply with public no8 tification and participation proce9 dures.

10 ‘‘(iii) ELIGIBLE GROUPS.—

11 ‘‘(I) IN GENERAL.—The regula12 tions shall include criteria relating to

13 the qualifications of groups eligible to

14 receive grants under this paragraph.

15 ‘‘(II) NONGOVERNMENTAL EDU16 CATIONAL OR INFORMATIONAL ORGANI17 ZATION.—The regulations shall require

18 that, to be eligible to receive a grant

19 under this paragraph, a group shall be

20 a nongovernmental educational or in21 formational organization.

22 ‘‘(III) COMMUNITIES AFFECTED

23 BY NATIONAL PRIORITIES LIST OR

24 STATE REGISTRY FACILITIES.—The

25 regulations shall require that a group
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•S 1834 RCS1S

1 that receives a grant under this para2 graph for a State shall include—

3 ‘‘(aa) participants that rep4 resent communities that, collec5 tively, are affected by a variety of

6 National Priorities List facilities

7 in the State; and

8 ‘‘(bb) participants that rep9 resent communities that, collec10 tively, are affected by a variety of

11 State Registry facilities in the

12 State.

13 Each such class of participants shall

14 have a demonstrated commitment to

15 the needs of the citizens in the commu16 nities described in the preceding sen17 tence, and shall reasonably reflect the

18 racial and ethnic composition of the

19 communities.

20 ‘‘(IV) PERSONS WHO ARE DIS21 PROPORTIONATELY ADVERSELY AF22 FECTED BY FACILITY CONTAMINA23 TION.—The regulations shall require

24 special efforts to award grants to mem25 bers of the communities who are or his-
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•S 1834 RCS1S

1 torically have been disproportionately

2 adversely affected by facility contami3 nation.

4 ‘‘(V) BACKGROUND.—The regula5 tions shall require that, where possible,

6 participants in a group that receives a

7 grant under this paragraph shall have

8 backgrounds in fields of study related

9 to the scientific and technical issues

10 common to covered facilities, or have

11 practical experience related to the pro12 gram under this Act.

13 ‘‘(iv) FACILITIES.—The regulations

14 shall require that in determining the

15 amount of the grants, the Administrator

16 shall consider factors to be established by

17 the Administrator, including the number

18 and complexity of covered facilities in each

19 State.

20 ‘‘(E) STATE LIMIT ON GRANTS.—The Ad21 ministrator may not award more than 1 grant

22 under this paragraph for a State for the same

23 fiscal year.

24 ‘‘(3) FUNCTIONS.—A Citizen Information and

25 Access Office for a State shall assist the Adminis-
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•S 1834 RCS1S

1 trator in the efforts of the Administrator to dissemi2 nate information, notify citizens of public meetings,

3 and notify potential Community Working Group

4 members, and shall serve as an information clearing5 house in the State by providing information and de6 scriptions as described in paragraph (1)(C)(iii) or

7 (4). In performing the functions described in the pre8 ceding sentence, a Citizen Information and Access Of9 fice shall carry out each of the following information

10 functions, as appropriate, with respect to the State in

11 which such office is established:

12 ‘‘(A) INFORMATION ON EXISTENCE OF COV13 ERED FACILITIES.—The Citizen Information and

14 Access Office shall inform citizens of the existence

15 of covered facilities in the State.

16 ‘‘(B) DESCRIPTION OF PROCESS.—The Citi17 zen Information and Access Office shall provide

18 citizens with a description of the process for

19 identifying covered facilities and for undertaking

20 response actions under this Act and of the legal

21 rights of citizens within the process. The descrip22 tion may include identification of resources, in23 cluding Technical Assistance Grants under sub24 section (e), that are available to assist a commu25 nity that is affected by a covered facility in par-
199

•S 1834 RCS1S

1 ticipating effectively in the process. The descrip2 tion shall be provided in a manner that is easily

3 understood by the community, considering any

4 unique cultural needs of the community, includ5 ing presentation of information orally and dis6 tribution of information in languages other than

7 English, as appropriate.

8 ‘‘(C) INFORMATION ON COMMUNITY WORK9 ING GROUPS.—The Citizen Information and Ac10 cess Office shall provide to citizens information

11 relating to the potential for establishing or exist12 ence of a Community Working Group.

13 ‘‘(D) INFORMATION ON COVERED FACILI14 TIES.—The Citizen Information and Access Of15 fice shall provide to citizens, to the extent infor16 mation becomes available, with respect to each

17 covered facility in the State, a description of the

18 location and characteristics of the facility, the

19 hazardous substances, pollutants, and contami20 nants present, the known exposure pathways,

21 and the steps being taken to assess the risk pre22 sented by the facility.

23 ‘‘(E) INFORMATION ON ALTERNATIVE WATER

24 SUPPLIES OR RELOCATION ASSISTANCE.—The

25 Citizen Information and Access Office shall pro-
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•S 1834 RCS1S

1 vide to citizens information relating to the possi2 bility, where relevant, that a community that is

3 affected by a covered facility may qualify to re4 ceive an alternative water supply or relocation

5 assistance under this Act.

6 ‘‘(F) INFORMATION ON RISKS.—The Citizen

7 Information and Access Office shall disseminate

8 information regarding the risks presented by a

9 covered facility. In the event that the Citizen In10 formation and Access Office identifies any con11 flict in such information, or any apparent dif12 ference in such information, the Citizen Informa13 tion and Access Office shall submit the informa14 tion to the Administrator for review before dis15 tributing the information to citizens. On receipt

16 of the information, the Administrator shall rec17 oncile, where possible, the conflict or differences.

18 ‘‘(G) RECORDS.—The Citizen Information

19 and Access Office shall maintain records of the

20 status of each covered facility in the State and

21 any health data generated concerning any Na22 tional Priorities List facility in the State. The

23 facility data maintained by the Citizen Informa24 tion and Access Office shall also include—
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•S 1834 RCS1S

1 ‘‘(i) a record of any institutional con2 trols at covered facilities in the State;

3 ‘‘(ii) any annual health data generated

4 in connection with each covered facility in

5 the State;

6 ‘‘(iii) information on the location of

7 each covered facility on the State Registry;

8 ‘‘(iv) to the extent available, informa9 tion on the hazardous substances or pollut10 ants or contaminants present at each cov11 ered facility in the State, including the vol12 ume of the hazardous substances or pollut13 ants or contaminants;

14 ‘‘(v) information on the exposure path15 ways, current exposure (if any), potential

16 future exposure, and risks to human health

17 or the environment presented by each such

18 facility, after submitting any conflicting in19 formation, or any apparent differences in

20 information, to the Administrator for rec21 onciliation as provided in subparagraph

22 (F);

23 ‘‘(vi) information on protective con24 centration levels established for each such

25 facility;
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•S 1834 RCS1S

1 ‘‘(vii) the biennial report from the En2 vironmental Justice Study prepared pursu3 ant to subsection (i); and

4 ‘‘(viii) any report generated during the

5 review conducted in accordance with section

6 121(c).

7 ‘‘(H) INFORMATION REGARDING EFFECTIVE8 NESS OF RESPONSE ACTIONS.—The Citizen In9 formation and Access Office shall collect avail10 able information from the Administrator or other

11 Federal or State agencies regarding the contin12 ued effectiveness of removal and remedial actions

13 taken in the State.

14 ‘‘(4) REQUIREMENT.—If a Citizen Information

15 and Access Office distributes information from a

16 source other than the Federal Government, in carry17 ing out activities under this subsection, the Citizen

18 Information and Access Office shall clearly identify

19 the source of the information.

20 ‘‘(5) REGULATIONS.—The Administrator shall

21 promulgate regulations relating to carrying out Citi22 zen Information and Access Offices, which regulations

23 shall—

24 ‘‘(A) require the Citizen Information and

25 Access Offices to conduct the activities of the Cit-
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•S 1834 RCS1S

1 izen Information and Access Offices in a manner

2 consistent with State and Federal law, including

3 open government laws and other public notice

4 and participation requirements;

5 ‘‘(B) ensure that each Citizen Information

6 and Access Office is accountable for the proper

7 conduct of the functions of the office and the ex8 penditure of the funds received through the grant

9 awarded under paragraph (2); and

10 ‘‘(C) establish financial accountability re11 quirements and termination procedures for the

12 Citizen Information and Access Offices.

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

15 ‘‘(A) EVALUATION.—No less often than an16 nually, the Administrator shall conduct an eval17 uation of the performance of each Citizen Infor18 mation and Access Office after consultation with

19 the Governing Board as provided in paragraph

20 (7)(C). Based on such evaluation, the Adminis21 trator shall require the Citizen Information and

22 Access Office to implement improvements in the

23 activities carried out by the Office, as appro24 priate.
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•S 1834 RCS1S

1 ‘‘(B) REPORT.—Each Citizen Information

2 and Access Office shall annually submit a report

3 to the Administrator regarding the grant pro4 gram established under paragraph (2) and shall

5 certify in the report that all funds used under

6 such paragraph by the Citizen Information and

7 Access Office have been used in compliance with

8 the requirements of this subsection.

9 ‘‘(C) VERIFICATION BY INSPECTOR GEN10 ERAL.—The Inspector General of the Environ11 mental Protection Agency shall periodically re12 view the programs carried out under this sub13 section and reports made under this paragraph

14 and shall verify the accuracy of the certifications

15 contained in the reports.

16 ‘‘(D) CONSEQUENCES OF FAILURE.—If the

17 Inspector General of the Environmental Protec18 tion Agency is unable to verify the certification

19 provided in any 2 consecutive annual reports

20 made under this paragraph for any particular

21 grant, the Administrator shall terminate the

22 grant.

23 ‘‘(7) CITIZEN INFORMATION AND ACCESS OFFICE

24 NATIONAL GOVERNING BOARD.—
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1 ‘‘(A) ESTABLISHMENT.—There is estab2 lished a Citizen Information and Access Office

3 National Governing Board.

4 ‘‘(B) MEMBERSHIP.—

5 ‘‘(i) IN GENERAL.—The Governing

6 Board shall consist of 10 members, ap7 pointed by the Administrator.

8 ‘‘(ii) NOMINATIONS.—Any citizen who

9 resides in a community affected by a cov10 ered facility may submit to the Adminis11 trator a nomination of 1 or more persons

12 for membership on the Governing Board.

13 ‘‘(iii) APPOINTMENTS.—The Adminis14 trator shall appoint citizens from such com15 munities to the Governing Board. The Ad16 ministrator shall appoint 1 such citizen

17 from each region served by a regional office

18 of the Environmental Protection Agency to

19 the Governing Board.

20 ‘‘(iv) MEMBER QUALIFICATION.—As

21 appropriate, the Administrator shall ensure

22 that the Governing Board shall include—

23 ‘‘(aa) appointees that represent

24 communities that, collectively, are af-
206

•S 1834 RCS1S

1 fected by a variety of National Prior2 ities List facilities; and

3 ‘‘(bb) appointees that represent

4 communities that, collectively, are af5 fected by a variety of State Registry

6 facilities.

7 Each such class of appointees shall have a

8 demonstrated commitment to the needs of

9 the citizens in the communities described in

10 the preceding sentence, and shall reasonably

11 reflect the racial and ethnic composition of

12 the communities.

13 ‘‘(v) PERSONS WHO ARE DISPROPOR14 TIONATELY ADVERSELY AFFECTED BY FA15 CILITY CONTAMINATION.—The Adminis16 trator shall make special efforts to appoint

17 to the Governing Board 1 or more citizens

18 who are or historically have been dispropor19 tionately adversely affected by facility con20 tamination.

21 ‘‘(vi) BACKGROUND.—Where possible,

22 the appointees shall have backgrounds in

23 fields of study related to the scientific and

24 technical issues common to covered facili-
207

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1 ties, or have practical experience related to

2 the program under this Act.

3 ‘‘(vii) TERMS.—Members of the Gov4 erning Board shall serve for staggered

5 terms, for a period determined by the Ad6 ministrator.

7 ‘‘(viii) VACANCIES.—Any vacancy in

8 the Governing Board shall not affect the

9 powers of the Governing Board, but shall be

10 filled in the same manner as the original

11 appointment.

12 ‘‘(C) DUTIES.—The Governing Board

13 shall—

14 ‘‘(i) nominate groups of citizens who

15 reside in communities affected by covered

16 facilities for grants under paragraph (2), in

17 accordance with the regulations described in

18 paragraph (2)(D);

19 ‘‘(ii) consult with the Administrator

20 before the Administrator awards grants

21 under paragraph (2);

22 ‘‘(iii) consult with the Administrator

23 before the Administrator conducts evalua24 tions described in paragraph (6)(A), receive

25 information from the evaluations, and pro-
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•S 1834 RCS1S

1 vide recommendations for the improvements

2 described in paragraph (6)(A); and

3 ‘‘(iv) prepare and submit to the Ad4 ministrator an annual report regarding the

5 activities carried out by the Citizen Infor6 mation and Access Offices.

7 ‘‘(D) ADMINISTRATION.—

8 ‘‘(i) COMPENSATION AND TRAVEL EX9 PENSES.—

10 ‘‘(I) COMPENSATION.—Each mem11 ber of the Governing Board who is not

12 an officer or employee of the Federal

13 Government shall be compensated at a

14 rate equal to the daily equivalent of the

15 annual rate of basic pay prescribed for

16 level IV of the Executive Schedule

17 under section 5315 of title 5, United

18 States Code, for each day (including

19 travel time) during which such member

20 is engaged in the performance of the

21 duties of the Governing Board. All

22 members of the Governing Board who

23 are officers or employees of the United

24 States shall serve without compensa25 tion in addition to that received for
209

•S 1834 RCS1S

1 their services as officers or employees of

2 the United States.

3 ‘‘(II) TRAVEL EXPENSES.—The

4 members of the Governing Board shall

5 be allowed travel expenses, including

6 per diem in lieu of subsistence, at rates

7 authorized for employees of agencies

8 under subchapter I of chapter 57 of

9 title 5, United States Code, while away

10 from the homes or regular places of

11 business of the members in the per12 formance of services for the Governing

13 Board.

14 ‘‘(ii) FACILITIES, SUPPLIES, AND PER15 SONNEL.—

16 ‘‘(I) IN GENERAL.—Upon the re17 quest of the Governing Board, the Ad18 ministrator shall provide to the Gov19 erning Board any facilities, supplies,

20 and personnel necessary for the Gov21 erning Board to carry out the respon22 sibilities of the Governing Board under

23 this paragraph.

24 ‘‘(II) DETAILS.—In the case of a

25 detail of a Federal Government em-
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1 ployee under subclause (I), the em2 ployee may be detailed to the Govern3 ing Board without reimbursement. The

4 detail shall be without interruption or

5 loss of civil service status or privilege.

6 ‘‘(iii) HEARINGS.—The Governing

7 Board may hold such hearings, sit and act

8 at such times and places, take such testi9 mony, and receive such evidence as the Gov10 erning Board considers advisable to carry

11 out this paragraph.

12 ‘‘(iv) INFORMATION FROM FEDERAL

13 AGENCIES.—The Governing Board may se14 cure directly from any Federal department

15 or agency such information as the Govern16 ing Board considers necessary to carry out

17 this paragraph. Upon request of the Govern18 ing Board, the head of such department or

19 agency shall furnish such information to the

20 Governing Board.

21 ‘‘(v) POSTAL SERVICES.—The Govern22 ing Board may use the United States mails

23 in the same manner and under the same

24 conditions as other departments and agen25 cies of the Federal Government.
211

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1 ‘‘(vi) TERMINATION.—The Governing

2 Board shall terminate 5 years after the date

3 of the establishment of the Governing Board.

4 ‘‘(8) CITIZEN INFORMATION AND ACCESS OM5 BUDSMEN AND COMMUNITY WORKING GROUPS FOR

6 TRIBAL PEOPLES.—In awarding grants under para7 graph (2), the Administrator may award a separate

8 grant to members of an Indian tribe that are affected

9 by a facility on the National Priorities List and that

10 comply with the requirements of paragraph (2). Not11 withstanding the receipt of such a grant by an Indian

12 tribe, the Citizen Information and Access Office for

13 the State involved shall be responsible for carrying

14 out the functions described in paragraph (3) for mem15 bers of Indian tribes as well as other citizens in the

16 State. Members of Indian tribes may establish Com17 munity Working Groups under subsection (g) regard18 less of whether a tribal Citizen Information and Ac19 cess Office or other tribal program relating to this Act

20 exists.

21 ‘‘(9) DEFINITIONS.—As used in this subsection:

22 ‘‘(A) EDUCATIONAL OR INFORMATIONAL OR23 GANIZATION.—The term ‘educational or informa24 tional organization’ means a group of individ25 uals organized and operated exclusively for edu-
212

•S 1834 RCS1S

1 cational or informational purposes, no part of

2 the net earnings of which inures to the benefit of

3 any private shareholder or individual, no sub4 stantial part of the activities of which is at5 tempting to influence legislation, and that does

6 not participate in, or intervene in (including the

7 publishing or distributing of statements), any

8 political campaign on behalf of (or in opposition

9 to) any candidate for public office.

10 ‘‘(B) COVERED FACILITY.—As used in this

11 subsection, the term ‘covered facility’ means a fa12 cility on the National Priorities List or a State

13 Registry.

14 ‘‘(C) GOVERNING BOARD.—The term ‘Gov15 erning Board’ means the Citizen Information

16 and Access Office National Governing Board es17 tablished in paragraph (7).

18 ‘‘(i) ENVIRONMENTAL JUSTICE STUDY.—

19 ‘‘(1) REPORT BY THE ADMINISTRATOR.—The Ad20 ministrator shall prepare an Environmental Justice

21 Study and submit to Congress a report containing the

22 results of the study within 2 years after the date of

23 enactment of the Superfund Reform Act of 1994 and

24 every 2 years thereafter. The report also shall be pro25 vided to the Citizen Information and Access Offices.
213

•S 1834 RCS1S

1 The Administrator and Citizen Information and Ac2 cess Offices shall ensure that copies of the report are

3 made available to the public.

4 ‘‘(2) CONTENT OF THE REPORT.—The report

5 shall include a comparative analysis of information

6 on priority setting, response actions, and public par7 ticipation conducted under this Act in light of the

8 population, race, ethnicity, and income characteris9 tics of the community involved with respect to each

10 facility.

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

12 evaluate the information in the report to determine

13 whether the priority setting, response actions, and

14 public participation were conducted in a fair and eq15 uitable manner and identify program areas that re16 quire improvements or modification.

17 ‘‘(4) ACTIONS BASED ON EVALUATION.—The Ad18 ministrator shall institute the necessary improve19 ments or modifications to address any deficiencies

20 identified in the report prepared under this sub21 section.’’.

22 SEC. 103. HAZARD RANKING SYSTEM.

23 (a) SCORING.—Section 105 (42 U.S.C. 9605) is

24 amended—
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•S 1834 RCS1S

1 (1) by adding at the end the following new sub2 sections:

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

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

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

6 are not adjacent or geographically juxtaposed, and

7 score them as a single facility where more than 1 fa8 cility listed on the State Registry results in hazardous

9 substance exposures to the same population;

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

12 hazardous substances in communities, regardless of

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

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

16 waterways for subsistence, religious, spiritual, or cul17 tural practices that result in additional exposures, in

18 placing facilities on the National Priorities List; and

19 ‘‘(4) shall conduct interviews with persons af20 fected by the facilities and living in the communities

21 likely to be affected by the facilities and solicit their

22 input and information in the hazard ranking system

23 evaluation.

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

25 The Administrator shall evaluate major urban areas and
215

•S 1834 RCS1S

1 any other areas where environmental justice concerns may

2 warrant special attention (such as tribal lands of Indian

3 tribes or poor rural communities) and identify 5 facilities

4 in each region served by a regional office of the Environ5 mental Protection Agency that are, or that should be, on

6 the State Registry and that are likely to warrant inclusion

7 on the National Priorities List. These facilities shall be ac8 corded a priority in evaluation for listing and scoring on

9 the National Priorities List, and shall be evaluated for such

10 listing within 2 years after the date of enactment of this

11 subsection.’’; and

12 (2) in subsection (a)—

13 (A) by striking ‘‘and’’ at the end of para14 graph (9);

15 (B) by striking the period at the end of

16 paragraph (10) and inserting a semi colon; and

17 (C) by inserting the following new para18 graph after paragraph (10):

19 ‘‘(11) a process and procedure for reviewing peti20 tions to evaluate or reevaluate a facility not on the

21 National Priorities List for inclusion on the National

22 Priorities List where paragraphs (1), (2), and (3) of

23 subsection (h) are relevant.’’.
216

•S 1834 RCS1S

1 (b) EXCEPTIONS TO LIMITATIONS ON RESPONSE AC2 TIONS.—Section 104(a)(4) (42 U.S.C. 9604(a)(4)) is

3 amended—

4 (1) by striking ‘‘section, the’’ and inserting the

5 following: ‘‘section—

6 ‘‘(1) the’’; and

7 (2) by striking the period at the end and insert8 ing the following: ‘‘; or

9 ‘‘(2) if a facility was placed on the National Pri10 orities List solely because of a history of exposure of

11 a community to 1 or more hazardous substances, as

12 described in section 105(h)(2), the President may re13 spond under this section to a release or threat of re14 lease, occurring outside the boundaries of the facility,

15 of 1 or more of the hazardous substances from the

16 source of the exposure, except that, for purposes of this

17 paragraph, the President—

18 ‘‘(A) may not take any action under section

19 106, or any action relating to the recovery of re20 sponse costs under section 107, with respect to

21 the response; and

22 ‘‘(B) may not incur greater response costs

23 in conducting response actions outside the

24 boundaries of the facility than are incurred for
217

•S 1834 RCS1S

1 response actions inside the boundaries of the fa2 cility.’’.

3 SEC. 104. HEALTH AUTHORITIES.

4 (a) IN GENERAL.—Section 104(i) (42 U.S.C. 9604(i))

5 is amended by striking all preceding subparagraph (A) of

6 paragraph (1) and inserting the following:

7 ‘‘(i) HEALTH AUTHORITIES.—

8 ‘‘(1) IN GENERAL.—The Secretary of Health and

9 Human Services (referred to in this subsection as the

10 ‘Secretary’) shall, in cooperation with the Adminis11 trator, the Commissioner of Food and Drugs, the Ad12 ministrator of Occupational Safety and Health, the

13 Secretary of Transportation, and appropriate State

14 and local health officials, implement the health au15 thorities of this Act. The Secretary shall be the succes16 sor to the Agency for Toxic Substances and Disease

17 Registry. The Secretary shall—’’.

18 (b) PREPARATION OF LIST OF HAZARDOUS SUB19 STANCES.—Section 104(i)(2)(A) (42 U.S.C. 9604(i)(2)(A))

20 is amended by striking ‘‘the Administrator of the Agency

21 for Toxic Substances and Disease Registry (ATSDR)’’ and

22 inserting ‘‘the Secretary’’.

23 (c) CONFORMING AMENDMENTS.—Section 104(i) (42

24 U.S.C. 9604(i)) is amended—
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•S 1834 RCS1S

1 (1) in paragraphs (2)(B), (3), (5), (7), (8), (9),

2 (10), (12), (13), (14), (15), (17), and (18) by striking

3 ‘‘Administrator of ATSDR’’ each place it appears

4 and inserting ‘‘Secretary’’;

5 (2) in paragraph (3), by striking ‘‘Adminis6 trator of ATSDR’s’’ and inserting ‘‘Secretary’s’’;

7 (3) in the first sentence of paragraph (4), by

8 striking ‘‘Administrator of the ATSDR’’ and insert9 ing ‘‘Secretary’’;

10 (4) in paragraph (10), by striking ‘‘the activities

11 of ATSDR’’ and inserting ‘‘the activities of the Sec12 retary’’; and

13 (5) in the last sentence of paragraph (13), by

14 striking ‘‘the Agency for Toxic Substances and Dis15 ease Registry’’ and inserting ‘‘the Secretary’’.

16 (d) USES OF FUND.—Section 111(c)(4) (42 U.S.C.

17 9611(c)(4)) is amended by striking ‘‘(relating to ATSDR)’’.

18 (e) CITIZENS SUITS.—Section 310(a)(2) (42 U.S.C.

19 9659(a)(2)) is amended by striking ‘‘Administrator of the

20 ATSDR’’ and inserting ‘‘Secretary of Health and Human

21 Services’’.

22 (f) NATIONAL REGISTRY.—Section 104(i)(1) (42

23 U.S.C. 9604(i)(1)) is amended by striking subparagraph

24 (A) and inserting the following new subparagraph:
219

•S 1834 RCS1S

1 ‘‘(A) in cooperation with the States, for sci2 entific purposes and public health purposes, es3 tablish and maintain a national registry of per4 sons exposed to toxic substances;’’.

5 (g) TOXICOLOGICAL PROFILES.—The penultimate sen6 tence of section 104(i)(3) (42 U.S.C. 9604(i)(3)) is amended

7 by striking ‘‘, but no less often than once every 3 years’’.

8 (h) HEALTH ASSESSMENTS.—Section 104(i)(6) (42

9 U.S.C. 9604(i)(6)) is amended—

10 (1) in subparagraph (A)—

11 (A) by striking ‘‘Administrator of ATSDR’’

12 and inserting ‘‘Administrator’’; and

13 (B) by adding at the end the following new

14 sentence: ‘‘The Administrator may enter into

15 contracts or cooperative agreements with the Sec16 retary or with appropriate State or local public

17 health officials to conduct any health assessment

18 required or authorized under this paragraph.’’;

19 (2) in subparagraph (B), by striking ‘‘Adminis20 trator of ATSDR’’ each place it appears and insert21 ing ‘‘Administrator or the Secretary’’;

22 (3) in subparagraph (C)—

23 (A) in the first sentence, by striking ‘‘the

24 Administrator of ATSDR, in consultation with
220

•S 1834 RCS1S

1 the Administrator of EPA,’’ and inserting ‘‘the

2 Administrator’’; and

3 (B) except as provided in subparagraph

4 (A), by striking ‘‘the Administrator of ATSDR’’

5 each place it appears and inserting ‘‘the Admin6 istrator’’;

7 (4) in subparagraph (D)—

8 (A) by striking ‘‘of ATSDR’’; and

9 (B) by striking ‘‘promptly and, to the maxi10 mum extent practicable, before the’’ and insert11 ing ‘‘prior to’’;

12 (5) in subparagraph (E)—

13 (A) in the first sentence, by striking ‘‘the

14 Administrator of ATSDR and’’; and

15 (B) except as provided in subparagraph

16 (A), by striking ‘‘of ATSDR’’ each place it ap17 pears;

18 (6) in subparagraph (F), by striking the last

19 sentence;

20 (7) in the second sentence of subparagraph (G),

21 by striking ‘‘of ATSDR’’;

22 (8) in subparagraph (H)—

23 (A) in the first sentence, by striking ‘‘the

24 Administrator of ATSDR shall provide the Ad-
221

•S 1834 RCS1S

1 ministrator of EPA’’ and inserting ‘‘the Admin2 istrator shall provide the Secretary’’; and

3 (B) in the second sentence—

4 (i) by striking ‘‘the Administrator of

5 ATSDR shall so notify the Administrator of

6 EPA who’’ and inserting ‘‘the Adminis7 trator’’; and

8 (ii) by striking ‘‘of ATSDR may rec9 ommend to the Administrator of EPA that

10 the site be accorded’’ and inserting ‘‘may

11 accord the site’’; and

12 (9) by adding at the end the following new sub13 paragraphs:

14 ‘‘(I) DATA COLLECTION.—In preparing

15 health assessments under this paragraph, the Ad16 ministrator shall actively collect data from Com17 munity Working Groups and from other sources

18 in communities affected or potentially affected by

19 releases of hazardous substances or pollutants or

20 contaminants regarding exposure, relevant

21 human activities, and other factors.

22 ‘‘(J) DESIGN OF HEALTH ASSESSMENTS.—

23 The Administrator shall design health assess24 ments that take into account the needs and con25 ditions of communities described in subpara-
222

•S 1834 RCS1S

1 graph (I). Community-based research models and

2 local health resources shall be used for the health

3 assessments, where practicable. Each Community

4 Working Group (or, where no Community Work5 ing Group exists, community described in sub6 paragraph (I)) shall be permitted to play an ac7 tive and early role in reviewing health assess8 ment designs. In preparing the designs, emphasis

9 shall be placed on collection of actual exposure

10 data, and sources of multiple exposure shall be

11 considered.’’.

12 (i) REDUCTION AND MITIGATION OF RISKS.—The last

13 sentence of section 104(i)(11) (42 U.S.C. 9604(i)(11)) is

14 amended by striking ‘‘of ATSDR’’.

15 (j) PERSONNEL FOR HEALTH ASSESSMENTS.—Section

16 104(i) (42 U.S.C. 9604(i)) is amended by striking para17 graph (16) and inserting the following new paragraph:

18 ‘‘(16) PERSONNEL FOR HEALTH ASSESS19 MENTS.—The President shall provide adequate per20 sonnel for the Environmental Protection Agency to

21 conduct health assessments under paragraph (6),

22 which shall consist of not fewer than 20 employees.’’.

23 SEC. 105. DETERMINING HEALTH EFFECTS.

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

25 amended by striking ‘‘designed to determine the health ef-
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•S 1834 RCS1S

1 fects (and techniques for development of methods to deter2 mine such health effects) of such substance’’ and inserting

3 ‘‘conducted directly or by means such as cooperative agree4 ments with and grants to appropriate public and nonprofit

5 institutions. The research shall be designed to determine the

6 health effects (and techniques for development of methods

7 to determine such health effects) of the substance’’.

8 SEC. 106. COMMUNITY HEALTH PROGRAMS.

9 Section 104(i) (42 U.S.C. 9604(i)) is amended by add10 ing at the end the following new paragraph:

11 ‘‘(19) COORDINATION WITH SECRETARY OF

12 HEALTH AND HUMAN SERVICES ON HEALTH-RELATED

13 ACTIVITIES.—

14 ‘‘(A) IN GENERAL.—The Secretary of

15 Health and Human Services (referred to in this

16 paragraph as the ‘Secretary’) shall coordinate

17 with the Administrator to improve the availabil18 ity of environmental health services in commu19 nities that may have been, or may be, subject to

20 exposure to a release of hazardous substances or

21 pollutants or contaminants from a facility that

22 is listed or proposed for listing on the National

23 Priorities List, or listed on a State Registry, and

24 that have a medically underserved population

25 (as designated under section 330 of the Public
224

•S 1834 RCS1S

1 Health Service Act (42 U.S.C. 254c)) (referred to

2 in this paragraph as ‘medically underserved

3 communities’). Coordinated activities carried out

4 under this paragraph shall include—

5 ‘‘(i) facilitating the provision of envi6 ronmental health services to medically un7 derserved communities;

8 ‘‘(ii) developing and implementing a

9 training program to educate health care

10 providers in the field of environmental

11 health;

12 ‘‘(iii) collecting environmental health

13 data; and

14 ‘‘(iv) enhancing the exchange of infor15 mation among individuals involved in the

16 field of environmental health.

17 ‘‘(B) COORDINATION OF ENVIRONMENTAL

18 HEALTH SERVICES UNDER THE PUBLIC HEALTH

19 SERVICE ACT.—The Administrator shall provide

20 information to the Secretary to assist the Sec21 retary in identifying medically underserved com22 munities. The Secretary shall provide environ23 mental health services to the communities using

24 existing medical clinics and health care delivery

25 systems, or establishing additional clinics and
225

•S 1834 RCS1S

1 health care delivery systems, as appropriate,

2 using authority and funding provided under the

3 Public Health Service Act (42 U.S.C. 201 et

4 seq.). Environmental health services may include

5 testing, diagnosis, counseling, and treatment of

6 individuals in the communities.

7 ‘‘(C) TRAINING PROGRAM.—The Secretary

8 shall coordinate with the Administrator to de9 velop and implement a program designed to

10 train health care providers in the field of envi11 ronmental health. The program shall be designed

12 to build capability and expertise in the medical

13 care community with respect to environmental

14 health. The program shall include educating

15 health care providers in the testing, diagnosis,

16 counseling, and treatment of individuals poten17 tially exposed to toxic substances and the preven18 tion of illnesses potentially linked to the expo19 sure.

20 ‘‘(D) ENVIRONMENTAL HEALTH DATA.—

21 ‘‘(i) COLLECTION.—The Secretary shall

22 collect environmental health data related to

23 exposure to releases of hazardous substances

24 or pollutants or contaminants from a facil25 ity that is listed or proposed for listing on
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•S 1834 RCS1S

1 the National Priorities List, or listed on a

2 State Registry. The Secretary shall promul3 gate standards for maintaining the con4 fidentiality of the data, and shall, at a min5 imum, ensure that the data is presented in

6 a manner that does not identify by name

7 the individual with respect to whom the in8 formation is collected. The Secretary shall

9 provide all nonconfidential data to the pub10 lic.

11 ‘‘(ii) ASSESSING RISK FROM MULTIPLE

12 CONTAMINANTS.—The Administrator, in co13 ordination with the Secretary, shall, as ap14 propriate, evaluate data collected under

15 clause (i) to improve methodologies, stand16 ards, and procedures for evaluating risk as17 sociated with exposure to multiple contami18 nants.

19 ‘‘(E) DISSEMINATION OF INFORMATION.—

20 The Secretary, in consultation with the Adminis21 trator, shall design a system that shall be imple22 mented by the Secretary to enhance the exchange

23 of information among individuals involved in

24 the field of environmental health. The system

25 shall include a publicly available database con-
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•S 1834 RCS1S

1 taining toxicological and epidemiological data,

2 including results of health effect studies and in3 formation repositories (such as Citizen Informa4 tion and Access Offices as provided for in section

5 117(h)).’’.

6 SEC. 107. PUBLIC HEALTH RECOMMENDATIONS IN REME7 DIAL ACTIONS.

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

9 first sentence by inserting after ‘‘remedial action’’ the sec10 ond time it appears the following: ‘‘, including public health

11 recommendations and decisions resulting from activities

12 under section 104(i),’’.

13 SEC. 108. RIGHTS TO PARTICIPATE.

14 Section 113 (42 U.S.C. 9613) is amended by adding

15 at the end of subsection (h) the following:

16 ‘‘(6) Notwithstanding the limitations on timing

17 in paragraph (4), an action under section 310 by any

18 person who is a member of the community but has

19 not been identified by the Administrator as a poten20 tially responsible party with respect to a facility, to

21 compel compliance with a nondiscretionary act or

22 duty set forth in section 117(f) with respect to the fa23 cility, which action shall be subject to each of the fol24 lowing requirements:
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•S 1834 RCS1S

1 ‘‘(A) Wherever practicable, such an action

2 shall be heard by the court involved, and any re3 lief shall be granted, within 30 days after the

4 date on which the Administrator files an answer

5 or other response in such action.

6 ‘‘(B) In such an action, the court shall have

7 no jurisdiction—

8 ‘‘(i) to grant any relief other than to

9 order performance of the nondiscretionary

10 act or duty concerned;

11 ‘‘(ii) to grant any relief that delays or

12 modifies a response action;

13 ‘‘(iii) to grant any relief if the asserted

14 noncompliance is minor or without preju15 dice to the person bringing the action; and

16 ‘‘(iv) to grant any relief unless the per17 son bringing the action—

18 ‘‘(I) provides notice to the Admin19 istrator of the alleged failure to comply

20 with section 117(f), in such form as the

21 Administrator shall prescribe, within

22 30 days after the person knew or

23 should have known about the alleged

24 failure to comply; and
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•S 1834 RCS1S

1 ‘‘(II) commences the action no less

2 than 60 days and no more than 70

3 days after providing the notice to the

4 Administrator in accordance with

5 subclause (I).

6 Nothing in paragraphs (1) through (6) shall authorize

7 relief except to the extent available under, and rel8 evant to, the actions referred to in such paragraphs.’’.

9 SEC. 109. TRANSITION.

10 (a) EFFECTIVE DATE IN GENERAL.—Except as pro11 vided in subsection (b), this title and the amendments made

12 by this title shall become effective upon the enactment of

13 this Act.

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

15 (1) through (5) of section 117(f) and paragraph (1) of sec16 tion 117(g), of the Comprehensive Environmental Response,

17 Compensation, and Liability Act of 1980 (42 U.S.C. 9617

18 (f) and (g)), as added by sections 101 and 102, shall become

19 effective 180 days after the date of enactment of this Act.

20 TITLE II—STATE ROLES

21 SEC. 201. DELEGATED STATE RESPONSE ACTIONS AND AU22 THORIZED STATE RESPONSE PROGRAMS.

23 (a) IN GENERAL.—Title I (42 U.S.C. 9601 et seq.) is

24 amended by adding after section 126 the following new sec25 tions:
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1 ‘‘SEC. 127. DELEGATED STATE RESPONSE ACTIONS.

2 ‘‘(a) IN GENERAL.—

3 ‘‘(1) APPLICATION FOR FUNDING TO TAKE

4 PREREMEDIAL ACTION AT NON-NPL FACILITIES.—A

5 State may apply to the Administrator to take or re6 quire any of the preremedial actions described in

7 clauses (i), (ii), and (iv) of paragraph (3)(A), under

8 a contract or cooperative agreement as provided in

9 this section at any non-federally owned or operated

10 facility within the boundaries of the State that is not

11 listed or proposed for listing on the National Prior12 ities List.

13 ‘‘(2) APPLICATION FOR AUTHORITY TO TAKE RE14 SPONSE ACTION AT NPL FACILITIES.—A State may

15 apply to the Administrator for a delegation of author16 ity to take or require any of the response actions de17 scribed in paragraph (3) under a contract or coopera18 tive agreement as provided in this section at any non19 federally owned or operated facility within the bound20 aries of the State that is listed or proposed for listing

21 on the National Priorities List.

22 ‘‘(3) RESPONSIBILITIES AND AUTHORITIES.—

23 ‘‘(A) IN GENERAL.—Subject to section

24 201(b) of the Superfund Reform Act of 1994, the

25 Administrator may enter into such a contract or

26 cooperative agreement with a qualified State to
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1 delegate to the State the authority, to the extent

2 provided in the contract or agreement—

3 ‘‘(i) to perform site characterization

4 including a preliminary assessment or site

5 inspection, perform a search for potentially

6 responsible parties, or conduct information

7 collection under section 104(e), for a facility

8 described in paragraph (1) or (2);

9 ‘‘(ii) to conduct hazard ranking system

10 scoring for the facility in preparation for a

11 determination regarding whether the facil12 ity shall be listed on the National Priorities

13 List;

14 ‘‘(iii) to conduct, or to ensure the con15 duct of and provide oversight with respect

16 to the conduct of, a remedial investigation

17 and feasibility study for the facility;

18 ‘‘(iv) to conduct, or to ensure the con19 duct of and provide oversight with respect

20 to the conduct of, a non-time critical re21 moval action at the facility;

22 ‘‘(v) to select a remedial action for the

23 facility and issue a record of decision;

24 ‘‘(vi) to conduct, or to ensure the con25 duct of and provide oversight with respect
232

•S 1834 RCS1S

1 to the conduct of, a remedial design for the

2 facility;

3 ‘‘(vii) to implement, or to ensure the

4 implementation of and provide oversight

5 with respect to the implementation of, a re6 medial action at the facility;

7 ‘‘(viii) to conduct, or to ensure the con8 duct of and provide oversight with respect

9 to the conduct of, operation and mainte10 nance at the facility;

11 ‘‘(ix) to conduct enforcement activities,

12 in accordance with subsection (e), with re13 spect to the facility;

14 ‘‘(x) to initiate and apply allocation

15 procedures under section 129 with respect to

16 response costs relating to the facility; and

17 ‘‘(xi) to take such other response action

18 under this Act, other than a response action

19 prohibited under subparagraph (B), as the

20 Administrator may determine to be appro21 priate.

22 ‘‘(B) LIMITATION.—The Administrator may

23 not enter into such a contract or agreement to

24 delegate to a State the authority described in sec25 tion 106, or to make a final determination with
233

•S 1834 RCS1S

1 respect to listing a facility on, or deleting a fa2 cility from, the National Priorities List.

3 ‘‘(4) APPROVAL OF APPLICATION.—The Adminis4 trator shall enter into such a contract or cooperative

5 agreement if the Administrator determines that the

6 State—

7 ‘‘(A) meets the qualification requirements

8 set forth in the regulations promulgated pursu9 ant to subsection (b); and

10 ‘‘(B) with respect to authority to select re11 medial actions and apply allocation procedures,

12 meets the qualification requirements set forth in

13 subsection (c).

14 ‘‘(5) NOTICE AND COMMENT.—The Administrator

15 shall enter into such a contract or cooperative agree16 ment for the State to perform or ensure the perform17 ance of all or substantially all the response action de18 scribed in paragraph (3)(A) at a site after providing

19 notice and an opportunity for public comment.

20 ‘‘(b) REGULATIONS.—The Administrator, in consulta21 tion with the States and not later than 1 year after the

22 date of enactment of this section, shall promulgate regula23 tions to implement this section. The regulations shall pro24 vide such additional qualifications for a contract or cooper25 ative agreement under this section as the Administrator
234

•S 1834 RCS1S

1 considers reasonable, including qualifications applicable to

2 particular types of response actions. The regulations shall

3 include a requirement that, in order for a State to qualify

4 for a contract or cooperative agreement with respect to a

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

6 potentially responsible party with respect to that facility.

7 ‘‘(c) QUALIFICATION REQUIREMENTS WITH RESPECT

8 TO SELECTION OF REMEDIAL ACTION AND APPLICATION OF

9 ALLOCATION PROCEDURES.—For purposes of subsection

10 (a)(4)(B), with respect to a contract or cooperative agree11 ment under this section for authority to select a remedial

12 action or to apply the allocation procedures under section

13 129, the Administrator shall enter into the contract or coop14 erative agreement if the Administrator also determines each

15 of the following:

16 ‘‘(1) The State has the capability to select reme17 dial actions or to apply the allocation procedures, re18 spectively, including adequate legal authority to enter

19 into the contract or cooperative agreement, financial

20 and personnel resources, organization, and expertise.

21 ‘‘(2) The State demonstrates experience in ade22 quately performing or ensuring the adequate perform23 ance of similar response actions.

24 ‘‘(d) REQUIREMENTS FOR SELECTION OF REMEDIAL

25 ACTION.—In any contract or cooperative agreement under
235

•S 1834 RCS1S

1 this section that provides for a State to select remedial ac2 tions, the State shall agree to select such remedial actions

3 in accordance with all of the procedures and requirements

4 set forth in sections 113, 117, and 121, the national contin5 gency plan, and any other relevant regulations issued and

6 guidelines adopted by the Administrator.

7 ‘‘(e) STATE AUTHORITY REGARDING ENFORCEMENT

8 OF SELECTED REMEDIAL ACTION.—

9 ‘‘(1) IN GENERAL.—A State that selects a reme10 dial action pursuant to a contract or cooperative

11 agreement entered into under this section shall have

12 the authority to enforce the requirements of such re13 medial action pursuant to section 121(f)(4).

14 ‘‘(2) STATE ENFORCEMENT.—Such State also

15 shall have the authority to enforce compliance with

16 any standard, regulation, condition, requirement,

17 order, or final determination that was issued or made

18 by the State under the administrative process of the

19 State with respect to the remedial action selected pur20 suant to a contract or agreement entered into under

21 this section. Where the remedial action addresses an

22 imminent and substantial danger to human health or

23 the environment, and a responsible party, without

24 sufficient cause, willfully violates, or fails or refuses

25 to comply with, such a standard, regulation, condi-
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•S 1834 RCS1S

1 tion, requirement, order, or final determination, such

2 State also may seek civil penalties not to exceed

3 $25,000 per day. Such penalties shall accrue from the

4 date of the violation after the State issues its final de5 termination or directs a responsible party to perform

6 a response action. Such State may commence an ac7 tion seeking such penalties pursuant to section

8 121(f)(4). The court with jurisdiction over the action

9 may grant such penalties unless the standard, regula10 tion, condition, requirement, order, or final deter11 mination is arbitrary, capricious, or contrary to law

12 when reviewed upon the administrative record pre13 sented by the State. Judicial review of any response

14 action taken, secured, or selected by a State under

15 this section shall be limited with respect to timing,

16 standard and scope of review, and availability of

17 remedies, in the same manner, and to the same ex18 tent, as judicial review of response actions taken, se19 cured, or selected by the President is limited under

20 subsections (h) and (j) of section 113. There shall be

21 no such limitation on the authority of the President

22 to bring an action to ensure performance of a re23 sponse action under subsection (g).

24 ‘‘(3) WAIVER.—In addition, if expressly provided

25 in the contract or cooperative agreement, such State
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•S 1834 RCS1S

1 may waive a Federal requirement applicable to the

2 remedial action in accordance with section

3 121(d)(7)(D).

4 ‘‘(f) REQUIREMENTS FOR ENFORCEMENT AND ALLOCA5 TION.—

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

7 or cooperative agreement entered into under this sec8 tion providing for a State to conduct an enforcement

9 action with respect to a facility, the contract or coop10 erative agreement shall require the State to provide

11 for expedited settlements under section 122.

12 ‘‘(2) APPLICATION OF ALLOCATION PROCE13 DURES.—

14 ‘‘(A) IN GENERAL.—In the case of a con15 tract or cooperative agreement entered into

16 under this section providing for a State to initi17 ate an enforcement action with respect to a facil18 ity subject to mandatory allocation pursuant to

19 section 129(a)(1), the contract or cooperative

20 agreement shall require the State to apply allo21 cation procedures with respect to the facility, in

22 accordance with the requirements of paragraphs

23 (2) through (7) of section 129(a). The contract or

24 cooperative agreement shall require the State to
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•S 1834 RCS1S

1 certify each of the following with respect to the

2 facility:

3 ‘‘(i) POTENTIALLY RESPONSIBLE PARTY

4 SEARCH.—The State has completed a poten5 tially responsible party search substantially

6 consistent with section 129(c) and will

7 make the results of that search available to

8 the allocator and the parties.

9 ‘‘(ii) NOTIFICATION TO TRUSTEES.—

10 The State has notified Federal, State, and

11 tribal natural resource trustees of the com12 mencement of the allocation process and,

13 pursuant to sections 104(b)(2) and

14 122(j)(1), of potential damages to natural

15 resources.

16 ‘‘(iii) SUBJECT TO MANDATORY ALLO17 CATION.—The facility would be subject to

18 mandatory allocation under section

19 129(a)(1) if the President were conducting

20 the response action.

21 ‘‘(B) RESPONSIBILITIES.—After the State

22 has made the certifications under subparagraph

23 (A), the Administrator shall initiate an alloca24 tion in accordance with the terms of section 129.

25 The Administrator may assign to the State, by
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•S 1834 RCS1S

1 cooperative agreement or otherwise, any respon2 sibilities to conduct the allocation, except that

3 the Administrator and Attorney General shall re4 tain their authority relating to orphan share

5 funding as provided by this paragraph and in

6 section 129, including the timing and terms of

7 payment.

8 ‘‘(C) ALLOCATOR’S REPORT.—The State

9 may accept or reject the allocator’s report on the

10 same basis as provided in section 129(l). If the

11 State does not reject the allocation, the State

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

13 State settlements under this Act. The State may

14 recover the costs of the allocation pursuant to

15 State law or the provisions of this Act.

16 ‘‘(D) FEDERAL PARTICIPATION.—The Presi17 dent, through either the Administrator or the At18 torney General, or both, may participate in any

19 phase of an allocation proceeding where an or20 phan share is identified according to the stand21 ards set forth in section 129(h)(4).

22 ‘‘(E) ORPHAN SHARE FUNDING.—If the

23 State accepts an allocator’s report as the basis

24 for its settlements, and the allocator’s report

25 identifies an orphan share subject to Federal
240

•S 1834 RCS1S

1 funding, the State shall apply for such funding

2 by certifying each of the following to the Admin3 istrator and the Attorney General:

4 ‘‘(i) The allocation presents a reason5 able basis for resolving responsibility for the

6 facility.

7 ‘‘(ii) The assignment of an orphan

8 share is consistent with the standards that

9 are applicable under section 129(h)(4).

10 ‘‘(F) DETERMINATION.—The Administrator

11 and the Attorney General shall accept a State’s

12 request for orphan share funding supported by

13 an allocator’s report and the certifications de14 scribed in subparagraph (E), unless the Admin15 istrator and Attorney General determine, within

16 120 days after the request by the State, that the

17 allocation does not meet the standards set forth

18 in section 129. Such determination shall be

19 made in the same manner, and shall be subject

20 to the same limitations, as set forth in section

21 129.

22 ‘‘(G) CONTENTS.—The contract or coopera23 tive agreement shall provide that the State may

24 use the orphan share funding only to fund re25 sponse actions through settlement or to reimburse
241

•S 1834 RCS1S

1 parties performing work in excess of the share

2 assigned to the parties in allocation, in accord3 ance with section 129. The level and scope of

4 such reimbursement may not exceed the reim5 bursement level and scope available under section

6 129(o).

7 ‘‘(H) RECOVERY.—The State may recover

8 funds provided through the orphan share fund9 ing, from nonsettling responsible parties pursu10 ant to State law or the provisions of this Act.

11 Seventy-five percent of such recovered funds pro12 vided by the President through such a contract

13 or cooperative agreement shall be returned to the

14 Fund. The remaining 25 percent shall be used

15 for any other response action under this Act by

16 the recovering State, including cost sharing re17 quirements under section 104(c)(11), or shall be

18 returned to the Fund. The State may recover any

19 reasonable attorney’s fees and costs from

20 nonsettling responsible parties pursuant to State

21 law or the provisions of this Act.

22 ‘‘(I) CERTIFICATION.—Not later than 1 year

23 after receipt of funds provided through the or24 phan share funding, and annually thereafter

25 until 1 year after the last day of the period for
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•S 1834 RCS1S

1 which the State receives a delegation of authority

2 under this section, the Governor of the State

3 shall submit to the Administrator—

4 ‘‘(i) a certification that states that the

5 State used the funds in accordance with the

6 requirements of subparagraph (H); and

7 ‘‘(ii) information describing the man8 ner in which the State used the funds.

9 ‘‘(3) COVENANTS.—In a case in which either the

10 President, acting under the authority of this Act, or

11 a State, acting pursuant to a contract or cooperative

12 agreement under this section, has responsibility for

13 selecting a response action at a facility listed or pro14 posed for listing on the National Priorities List and

15 enters an administrative or judicial settlement to re16 solve the liability of responsible parties at the facility,

17 the President or the State may confer, in accordance

18 with requirements relating to covenants of sections

19 122 and 129, a covenant that will preclude some or

20 all administrative or judicial action by both the

21 President and the State to recover response costs or

22 to compel response actions at the facility with respect

23 to matters addressed in the settlement. Notwithstand24 ing the preceding sentence, such covenants shall not be
243

•S 1834 RCS1S

1 binding on the governmental entity that did not con2 fer the covenant to the extent that—

3 ‘‘(A) the covenant purports to address natu4 ral resource damages;

5 ‘‘(B) the President or the State has not been

6 provided notice of, and an opportunity to par7 ticipate in, the settlement concerning the re8 sponse action; or

9 ‘‘(C) the President or the State objects to the

10 settlement within 120 days after the date of sig11 nature for the record of decision or receipt of no12 tice of the settlement, whichever is later.

13 ‘‘(g) TERMS AND CONDITIONS; ENFORCEMENT.—

14 ‘‘(1) IN GENERAL.—A contract or cooperative

15 agreement under this section shall be subject to such

16 terms and conditions as the Administrator may pre17 scribe. If a State fails to comply with a requirement

18 of a contract or cooperative agreement, the Adminis19 trator, after 90 days notice to the affected State, may

20 bring an action in the appropriate United States dis21 trict court seeking to ensure performance of the re22 sponse action, or to recover any funds advanced or

23 any costs incurred because of the breach.
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•S 1834 RCS1S

1 ‘‘(2) SPECIFIC TERMS.—A contract or coopera2 tive agreement under this section shall include each of

3 the following requirements:

4 ‘‘(A) A requirement that the State shall ex5 ercise any authority conferred by this section or

6 the contract or cooperative agreement on behalf

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

8 of the Administrator, the President, or the Unit9 ed States.

10 ‘‘(B) A requirement that the State shall

11 have and maintain sufficient legal authority

12 under applicable State law to enter into the con13 tract or cooperative agreement.

14 ‘‘(C) A requirement that the Administrator

15 shall retain authority to terminate and recoup

16 funding, and to terminate the contract or cooper17 ative agreement, if the State fails to perform the

18 contract or cooperative agreement in a manner

19 consistent with this Act. At least 90 days before

20 terminating any such contract or cooperative

21 agreement with a State, the Administrator shall

22 provide to the State a written explanation of the

23 reasons for the proposed termination and afford

24 an opportunity to the State to discuss the termi-
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•S 1834 RCS1S

1 nation and to propose actions to correct any de2 ficiencies.

3 ‘‘(D) A requirement imposing a non4 discretionary duty on the Administrator to per5 form or compel expeditious performance of re6 sponse actions under the contract or cooperative

7 agreement if the State fails to comply with the

8 terms of the contract or cooperative agreement.

9 ‘‘(h) EFFECT OF SECTION.—

10 ‘‘(1) LISTED AND PROPOSED FACILITIES.—This

11 section shall not affect the authority of the President

12 to take response actions at facilities listed or proposed

13 for listing on the National Priorities List with respect

14 to which the State has not received a delegation of au15 thority pursuant to this section. At facilities listed or

16 proposed for listing on the National Priorities List

17 with respect to which the State has received such a

18 delegation, the President may take response actions

19 that the President determines to be necessary to pre20 vent an imminent and substantial endangerment to

21 public health, welfare, or the environment, if the State

22 fails, after a written request by the Administrator, to

23 take such response actions in a timely manner, as de24 termined by the Administrator.
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•S 1834 RCS1S

1 ‘‘(2) FEDERAL FACILITIES.—This section shall

2 not affect the authority of the United States under

3 this Act to seek recovery of costs incurred by the Unit4 ed States, subject to any covenant that is binding on

5 the United States in accordance with subsection

6 (f)(3), or implement response actions at facilities

7 owned or operated by or under the jurisdiction, cus8 tody, or control of any department, agency, or instru9 mentality of the United States (including the execu10 tive, legislative, and judicial branches of the Federal

11 Government).

12 ‘‘(i) INTERVENTION.—The President may intervene as

13 a matter of right in any civil action brought by or against

14 a State with respect to the authorities delegated under this

15 section, for the purpose of representing the Federal interest

16 with respect to the authorities.

17 ‘‘(j) DEFINITIONS.—As used in this section:

18 ‘‘(1) NON-FEDERALLY OWNED OR OPERATED FA19 CILITY.—The term ‘non-federally owned or operated

20 facility’ means a facility that is not owned or oper21 ated by or under the jurisdiction, custody, or control

22 of any department, agency, or instrumentality of the

23 United States (including the executive, legislative,

24 and judicial branches of the Federal Government).
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•S 1834 RCS1S

1 ‘‘(2) TIME CRITICAL AND NON-TIME CRITICAL RE2 MOVAL ACTIONS.—The terms ‘time critical removal

3 action’ and ‘non-time critical removal action’ mean

4 actions described in paragraphs (2) and (4), respec5 tively, of section 300.415(m) of title 40, Code of Fed6 eral Regulations (as in effect on July 1, 1993).

7 ‘‘SEC. 128. STUDY OF AUTHORIZATION OF STATES TO

8 CARRY OUT SUPERFUND.

9 ‘‘The Administrator shall conduct a study of the fea10 sibility of authorizing States to use their own laws to carry

11 out the provisions of this Act in lieu of the Federal program

12 established under this Act.’’.

13 (b) DELEGATION TRANSITION RULES.—

14 (1) RECORD OF DECISION.—

15 (A) STATE LEAD.—If, on the date of enact16 ment of this Act, a record of decision has been

17 signed for a non-federally owned or operated fa18 cility on the National Priorities List, and a

19 State has served as the lead agency for the facil20 ity, the Administrator shall, on application of

21 the State, delegate the authority described in sec22 tion 127 of the Comprehensive Environmental

23 Response, Compensation, and Liability Act of

24 1980 (as added by subsection (a)) to the State

25 with respect to the facility. The Administrator
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•S 1834 RCS1S

1 shall not make such a delegation if the Adminis2 trator determines that the State has not dem3 onstrated the qualifications required by section

4 127(a)(4) of such Act.

5 (B) FEDERAL LEAD.—If, on such date, a

6 record of decision has been signed for a non-fed7 erally owned or operated facility on the National

8 Priorities List, and the Environmental Protec9 tion Agency has served as the lead agency for the

10 facility, the Administrator shall not delegate

11 such authority to a State with respect to the fa12 cility, unless the Administrator determines that

13 the delegation will not significantly delay com14 pletion of a response action at the facility.

15 (2) PRIOR TO RECORD OF DECISION.—

16 (A) STATE LEAD.—If, on such date—

17 (i) a non-federally owned or operated

18 facility has been listed on the National Pri19 orities List but no record of decision has

20 been signed for the facility;

21 (ii) a State has served as the lead

22 agency for the facility; and

23 (iii) the State can demonstrate the

24 qualifications required by section 127(a)(4)

25 of such Act;
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•S 1834 RCS1S

1 the Administrator shall, on application of the

2 State, delegate such authority to the State with

3 respect to the facility, unless the Administrator

4 determines that the delegation will significantly

5 delay completion of a response action at the fa6 cility.

7 (B) FEDERAL LEAD.—

8 (i) PRESUMPTION.—If, on the date of

9 enactment of this Act—

10 (I) a non-federally owned or oper11 ated facility has been listed on the Na12 tional Priorities List but no record of

13 decision has been signed for the facil14 ity; and

15 (II) the Environmental Protection

16 Agency has served as the lead agency

17 for the facility;

18 the Administrator shall not delegate such

19 authority to the State with respect to the fa20 cility, unless the State demonstrates to the

21 Administrator that the delegation will not

22 significantly delay completion of a response

23 action at the facility and demonstrates the

24 qualifications required by section 127(a)(4)

25 of such Act.
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•S 1834 RCS1S

1 (ii) RELIANCE ON EXISTING RESPONSE

2 ACTION ACTIVITIES.—Any State that re3 ceives such a delegation for a facility as de4 scribed in this subparagraph shall, in con5 ducting a response action at the facility,

6 rely on the remedial investigation and fea7 sibility study and any related studies or ac8 tivities conducted with respect to the site by

9 the Environmental Protection Agency prior

10 to the date of the delegation.

11 (3) DEFINITIONS.—As used in this subsection:

12 (A) ADMINISTRATOR; FACILITY; RE13 SPONSE.—The terms ‘‘Administrator’’, ‘‘facil14 ity’’, and ‘‘response’’ have the meanings given

15 the terms in section 101 of the Comprehensive

16 Environmental Response, Compensation, and Li17 ability Act of 1980 (42 U.S.C. 9601).

18 (B) LEAD AGENCY.—The term ‘‘lead agen19 cy’’ means a lead agency, as used within the na20 tional contingency plan.

21 (C) NON-FEDERALLY OWNED OR OPERATED

22 FACILITY.—The term ‘‘non-federally owned or

23 operated facility’’ has the meaning given the

24 term in section 127(j)(1) of the Comprehensive
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•S 1834 RCS1S

1 Environmental, Response, Compensation, and

2 Liability Act of 1980.

3 (c) APPLICATION OF STATE INVOLVEMENT AUTHORI4 TIES.—Section 121(f) (42 U.S.C. 9621(f)) is amended by

5 adding at the end the following new paragraph:

6 ‘‘(5) APPLICATION.—This subsection shall apply

7 with respect to remedial actions at a facility if the

8 Administrator has not delegated the authority de9 scribed in section 127 to the State with respect to the

10 facility.’’.

11 SEC. 202. STATE COST SHARE.

12 Section 104(c) (42 U.S.C. 9604(c)) is amended by add13 ing at the end the following new paragraphs:

14 ‘‘(10) EXISTING CONTRACTS AND COOPERATIVE

15 AGREEMENTS.—The requirements of paragraphs (3),

16 (6), and (7) shall apply only to contracts and cooper17 ative agreements pursuant to subsection (d) entered

18 into prior to the date of enactment of the Superfund

19 Reform Act of 1994.

20 ‘‘(11) STATE COST SHARE.—After the date of en21 actment of the Superfund Reform Act of 1994, the Ad22 ministrator may reject any request for funding under

23 this section or section 127, except for an emergency

24 removal action, unless the State in which the release

25 or threatened release occurs has entered into a con-
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•S 1834 RCS1S

1 tract or cooperative agreement pursuant to this sub2 section or section 127, as appropriate, that provides

3 assurances, considered adequate by the Administrator,

4 that—

5 ‘‘(A) the State will pay, or ensure payment

6 of, 15 percent of the cost incurred by the Fund

7 of such response action or funding, including 15

8 percent of the operation and maintenance costs;

9 and

10 ‘‘(B) the State will ensure oversight of any

11 operation and maintenance of the funded re12 sponse action.

13 Nothing in this Act shall be construed to require any

14 State to contribute to orphan share funding.’’.

15 SEC. 203. SITING.

16 Section 104(c)(9) (42 U.S.C. 9604(c)(9)) is amended

17 to read as follows:

18 ‘‘(9) SITING.—Effective 1 year after the date of

19 enactment of the Superfund Reform Act of 1994, the

20 President shall not take or fund any remedial action

21 pursuant to this section or section 127, unless the

22 State in which the release occurs submits a report de23 scribing its plans for adequate treatment, storage, and

24 disposal capacity of hazardous wastes generated with-
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•S 1834 RCS1S

1 in the State, in accordance with guidelines issued by

2 the Administrator.’’.

3 SEC. 204. STATE REGISTRY.

4 Section 105(a)(8) (42 U.S.C. 9605(a)(8)) is

5 amended—

6 (1) by adding ‘‘and’’ at the end of subparagraph

7 (B); and

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

10 ‘‘(C) a requirement that each State shall main11 tain and make available to the public a list of facili12 ties in the State that are known to present a risk to

13 human health or the environment due to the release

14 or threatened release of hazardous substances or pol15 lutants or contaminants, and that each State, in con16 sultation with the Administrator and other appro17 priate Federal agencies, shall update such listing on

18 an annual basis;’’.

19 SEC. 205. CONFORMING AND MISCELLANEOUS AMEND20 MENTS.

21 (a) TRANSFER OF SECTION 121(e)(2).—

22 (1) ACTION.—Section 121(f) (42 U.S.C. 9621(f))

23 is amended by inserting after paragraph (3) the fol24 lowing new paragraph:
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•S 1834 RCS1S

1 ‘‘(4) ACTION TO ENFORCE.—A State may bring

2 an action to enforce any Federal or State standard,

3 requirement, criterion, or limitation to which the re4 medial action is required to conform, including any

5 operation and maintenance requirement or other ac6 tion necessary to ensure the integrity of a remedy,

7 under this Act in the United States district court for

8 the district in which the facility is located.’’.

9 (2) COMPLIANCE.—Section 122(d)(1) (42 U.S.C.

10 9622(d)(1)) is amended by adding at the end the fol11 lowing new subparagraph:

12 ‘‘(D) COMPLIANCE.—Any such consent de13 cree shall require the parties to attempt expedi14 tiously to resolve disagreements concerning im15 plementation of the remedial action informally

16 with the appropriate Federal and State agencies.

17 If the parties agree, the consent decree may pro18 vide for administrative enforcement. Each con19 sent decree shall also contain stipulated penalties

20 for violations of the decree in an amount not to

21 exceed $25,000 per day, which may be enforced

22 by either the President or the State. Such stipu23 lated penalties shall not be construed to impair

24 or affect the authority of the court to order com-
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1 pliance with the specific terms of any such de2 cree.’’.

3 (b) SECTION 126(a).—Section 126(a) (42 U.S.C.

4 9626(a)) is amended by inserting after ‘‘List)’’ the follow5 ing: ‘‘, section 127 (regarding delegation of authority under

6 contracts and cooperative agreements), and the Voluntary

7 Environmental Cleanup and Economic Redevelopment Act

8 of 1994’’.

9 (c) SECTION 310(a).—Section 310(a) (42 U.S.C.

10 9659(a)) is amended, in the matter preceding paragraph

11 (1)—

12 (1) by inserting ‘‘(including any State)’’ after

13 ‘‘person’’; and

14 (2) by striking ‘‘his’’ and inserting ‘‘the per15 son’s’’.

16 (d) TRANSITION.—Section 104(d) (42 U.S.C. 9604(d))

17 is amended by adding at the end the following new para18 graph:

19 ‘‘(5) STATE REGISTRIES.—

20 ‘‘(A) ESTABLISHMENT OF GRANT PRO21 GRAM.—The Administrator shall establish a pro22 gram to provide grants to assist States in estab23 lishing State Registries.

24 ‘‘(B) GRANTS.—In carrying out the pro25 gram established under subparagraph (A), the
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1 Administrator shall, subject to the availability of

2 appropriations, make a grant to the Governor of

3 each State that submits to the Administrator,

4 and obtains approval of, an application that

5 meets such requirements as the Administrator

6 may establish.’’.

7 SEC. 206. STATE ROLE AT FEDERAL FACILITIES.

8 (a) TRANSFER OF AUTHORITIES.—Section 120(g) (42

9 U.S.C. 9620(g)) is amended to read as follows:

10 ‘‘(g) TRANSFER OF AUTHORITIES.—

11 ‘‘(1) STATE APPLICATION FOR TRANSFER OF AU12 THORITIES.—A State may apply to the Adminis13 trator to exercise the authorities vested in the Admin14 istrator under this section at any or all facilities

15 owned or operated by or under the jurisdiction, cus16 tody, or control of any department, agency, or instru17 mentality of the United States (including the execu18 tive, legislative, and judicial branches of the Federal

19 Government), including the authority—

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

21 for completion of any remedial investigation and

22 feasibility study;

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

24 prepared in connection with any such investiga25 tion and study;
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1 ‘‘(C) to select and approve remedies; and

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

5 to this Act.

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

8 agreement to transfer the authorities described in

9 paragraph (1) to a State if the Administrator deter10 mines each of the following:

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

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

14 personnel resources, organization, and expertise.

15 ‘‘(B) The State demonstrates experience in

16 adequately exercising, or ensuring the adequate

17 exercise of, similar authorities.

18 ‘‘(3) EFFECT OF AUTHORIZATION UNDER SOLID

19 WASTE DISPOSAL ACT.—In the review by the Admin20 istrator of an application of a State for transfer of

21 authorities under this subsection, if the State is au22 thorized to implement a State hazardous waste pro23 gram pursuant to section 3006 of the Solid Waste

24 Disposal Act (42 U.S.C. 6926), each of the following

25 provisions shall apply:
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1 ‘‘(A) SIGNATORIES TO INTERAGENCY

2 AGREEMENTS.—With respect to a State that is a

3 signatory to an interagency agreement under

4 subsection (e)(2) that is in effect on the date of

5 enactment of the Superfund Reform Act of 1994,

6 the Administrator, in making the determinations

7 referred to in paragraph (2), shall accord sub8 stantial weight to the State’s hazardous waste

9 program authorization and the Administrator’s

10 findings in approving such authorization.

11 ‘‘(B) STATES AUTHORIZED TO IMPLEMENT

12 CORRECTIVE ACTIONS.—With respect to a State

13 whose authorization under such section 3006 in14 cludes authorization to implement the corrective

15 action provisions of the Solid Waste Disposal Act

16 (42 U.S.C. 6901 et seq.), the Administrator shall

17 approve the application and provide for the or18 derly transfer of authorities as expeditiously as

19 practicable, but in no case later than 6 months

20 after the date of receipt of the application, unless

21 the parties agree to another deadline.

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

23 which authorities are transferred under this sub24 section shall not be deemed to be an agent of the
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1 President but shall exercise such authorities in its

2 own name.

3 ‘‘(5) DEADLINES.—Except as provided in para4 graph (3)(B), the Administrator shall make a deter5 mination on an application from a State under this

6 subsection not later than 90 days after the date the

7 Administrator receives the application.

8 ‘‘(6) WITHDRAWAL OF AUTHORITIES.—

9 ‘‘(A) DETERMINATION.—The Administrator

10 may withdraw the authorities transferred under

11 this subsection in whole or in part if the Admin12 istrator determines—

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

14 is exercising such authorities in a manner

15 clearly inconsistent with the requirements of

16 this Act; or

17 ‘‘(ii) in the case of a State that was

18 approved under paragraph (3)(B), that the

19 State is no longer authorized to implement

20 the corrective action provisions of the Solid

21 Waste Disposal Act.

22 ‘‘(B) EXPLANATION.—At least 90 days be23 fore withdrawing any such transferred authori24 ties from a State, the Administrator shall pro25 vide to the State a written explanation of the
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1 reasons for the proposed withdrawal and afford

2 an opportunity to the State to discuss the with3 drawal and to propose actions to correct any de4 ficiencies.

5 ‘‘(7) LIMITATION.—Except for authorities that

6 are transferred by the Administrator to a State pur7 suant to this subsection, or that are transferred by the

8 Administrator to an officer or employee of the Envi9 ronmental Protection Agency, no authority vested in

10 the Administrator under this section may be trans11 ferred, by executive order of the President or other12 wise, to any other officer or employee of the United

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

14 implement the transfer of the Administrator’s au15 thorities to a State pursuant to this subsection, noth16 ing in this subsection shall be construed as altering,

17 modifying, or impairing in any manner any agree18 ment, permit, administrative or judicial order, decree,

19 or interagency agreement existing on the date of en20 actment of the Superfund Reform Act of 1994. Noth21 ing in this subsection shall affect the exercise by a

22 State of any other authorities that may be applicable

23 to facilities in such State.’’.

24 (b) ARBITRATION OF DISPUTES INVOLVING INTER25 AGENCY AGREEMENTS.—Section 120(g) (as amended by
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1 subsection (a)) is further amended by adding at the end

2 the following new paragraph:

3 ‘‘(8) RESOLUTION OF DISPUTES RELATING TO

4 INTERAGENCY AGREEMENTS.—

5 ‘‘(A) APPLICATION.—In the event that au6 thority is transferred to a State under this sub7 section, the parties to any dispute relating to the

8 implementation of an interagency agreement de9 scribed in subsection (e)(2) shall resolve the dis10 pute in accordance with the provisions of sub11 paragraph (B).

12 ‘‘(B) PROCESS.—

13 ‘‘(i) INFORMAL DISPUTE RESOLUTION

14 PROCESS.—If a dispute arises among 2 or

15 more signatories to the interagency agree16 ment concerning the agreement, except as

17 provided in clause (iii), the signatories in18 volved in the dispute shall participate in

19 any informal dispute resolution process re20 quired by the agreement to attempt to re21 solve the dispute. Not later than 20 days

22 after the commencement of the informal dis23 pute resolution process, the signatories in24 volved in the dispute shall provide notice of
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1 the process to the other signatories to the

2 agreement.

3 ‘‘(ii) SELECTION OF NOMINATING ARBI4 TRATORS.—If the signatories involved in the

5 dispute do not resolve the dispute involving

6 the interagency agreement through the in7 formal dispute resolution process, not later

8 than 15 days after notice is provided under

9 clause (i), each signatory to the agreement

10 shall select a nominating arbitrator, from a

11 list of available arbitrators obtained from

12 the American Arbitration Association, in

13 accordance with the Rules of the Associa14 tion.

15 ‘‘(iii) SELECTION OF FINAL ARBITRA16 TOR.—The nominating arbitrators selected

17 under clause (ii) shall jointly select a final

18 arbitrator to resolve the dispute, from a list

19 of available arbitrators obtained from the

20 American Arbitration Association, in ac21 cordance with the Rules of the Association.

22 ‘‘(iv) DUTIES OF FINAL ARBITRA23 TOR.—Except as otherwise provided in this

24 clause, the arbitrator selected under clause

25 (iii) shall perform the duties of the Admin-
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1 istrator in resolving the dispute under the

2 interagency agreement. Not later than 120

3 days after the arbitrator is selected under

4 clause (iii), a final decision to resolve the

5 dispute shall be issued by the arbitrator.

6 ‘‘(v) JUDICIAL REVIEW.—A party to

7 the dispute may, not sooner than 120 days

8 after the arbitrator is selected under clause

9 (iii), bring an action seeking resolution of

10 the dispute. The action shall be subject to

11 the applicable provisions of section 113 (in12 cluding subsections (b) and (h) of section

13 113).

14 ‘‘(vi) COSTS.—The costs of actions in15 curred under this subparagraph to resolve a

16 dispute involving an interagency agreement

17 shall be borne equally by signatories to the

18 agreement.’’.

19 TITLE III—VOLUNTARY

20 ENVIRONMENTAL CLEANUP

21 SEC. 301. SHORT TITLE.

22 This title may be cited as the ‘‘Voluntary Environ23 mental Cleanup and Economic Redevelopment Act of

24 1994’’.
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1 SEC. 302. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—Congress finds that—

3 (1) past uses of land in the United States for in4 dustrial and commercial purposes have created many

5 sites throughout the United States that have environ6 mental contamination;

7 (2) Congress and the governments of States and

8 political subdivisions of States have enacted laws to—

9 (A) prevent environmental contamination;

10 and

11 (B) carry out response actions to correct

12 past instances of environmental contamination;

13 (3) many sites are minimally contaminated, do

14 not pose serious threats to human health or the envi15 ronment, and can be satisfactorily remediated expedi16 tiously with little government oversight;

17 (4) promoting the cleanup and redevelopment of

18 contaminated sites could lead to significant environ19 mental and economic benefits, particularly in any

20 case in which a cleanup can be completed quickly and

21 during a period of time that meets short-term busi22 ness needs;

23 (5) the private market demand for sites affected

24 by environmental contamination frequently is reduced

25 or eliminated, often due to uncertainties regarding li26 ability or potential cleanup costs of current owners
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1 and prospective purchasers under Federal and State

2 law;

3 (6) the abandonment or underutilization of af4 fected sites impairs the ability of the Federal Govern5 ment and the governments of States and political sub6 divisions of States to provide economic opportunities

7 for the people of the United States, particularly the

8 poor and unemployed;

9 (7) the abandonment or underutilization of af10 fected sites also results in the inefficient use of public

11 facilities and services, as well as land and other natu12 ral resources, and extends conditions of blight in local

13 communities;

14 (8) cooperation among Federal agencies, depart15 ments and agencies of States and political subdivi16 sions of States, local community development organi17 zations, and current owners and prospective pur18 chasers of affected sites is required to accomplish

19 timely response actions and the redevelopment or

20 reuse of affected sites;

21 (9) there is a need for a program to—

22 (A) encourage voluntary cleanups of affected

23 sites; and
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1 (B) facilitate the establishment of programs

2 by States to foster voluntary cleanups of affected

3 sites; and

4 (10) there is a need to provide financial incen5 tives and assistance to characterize certain affected

6 sites and facilitate the cleanup of the sites so that the

7 sites may be redeveloped for economically beneficial

8 uses.

9 (b) PURPOSE.—The purpose of this title is to create

10 new business and employment opportunities through the

11 economic redevelopment of affected sites that do not pose

12 a serious threat to human health or the environment by—

13 (1) encouraging States to adopt and develop a

14 program for sites that would not be remediated under

15 other environmental laws (including regulations) in

16 effect on the date of enactment of this Act;

17 (2) encouraging local governments and private

18 parties, including local community development orga19 nizations, to participate in State voluntary cleanup

20 programs that facilitate expedited response actions

21 that are consistent with business needs at affected

22 sites;

23 (3) directing the Secretary and the Adminis24 trator to establish programs that provide financial as25 sistance to—
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1 (A) encourage the development of State vol2 untary cleanup programs;

3 (B) facilitate site characterizations of cer4 tain affected sites; and

5 (C) encourage cleanup of appropriate sites;

6 and

7 (4) reducing transaction costs and paperwork,

8 and preventing needless duplication of effort and

9 delay at all levels of government.

10 SEC. 303. DEFINITIONS.

11 As used in this title (unless the context clearly requires

12 otherwise):

13 (1) ADMINISTRATIVE COSTS.—The term ‘‘admin14 istrative costs’’ means eligible costs that are not

15 nonadministrative costs.

16 (2) ADMINISTRATOR.—The term ‘‘Adminis17 trator’’ means the Administrator of the Environ18 mental Protection Agency.

19 (3) AFFECTED SITE.—

20 (A) IN GENERAL.—Except as provided in

21 subparagraph (B), the term ‘‘affected site’’ means

22 a facility that has environmental contamination

23 that—
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1 (i) could prevent the timely use, devel2 opment, reuse, or redevelopment of the facil3 ity; and

4 (ii) is limited in scope or severity and

5 can be comprehensively characterized and

6 readily analyzed.

7 (B) EXCEPTIONS.—The term does not in8 clude—

9 (i) any facility that is the subject of a

10 planned or an ongoing response action

11 under the Comprehensive Environmental

12 Response, Compensation, and Liability Act

13 of 1980 (42 U.S.C. 9601 et seq.), except that

14 the term includes a facility for which a pre15 liminary assessment has been completed

16 and with respect to which the Adminis17 trator has decided not to take further re18 sponse action;

19 (ii) any facility included, or proposed

20 for inclusion, on the National Priorities

21 List maintained by the Administrator

22 under such Act;

23 (iii) any facility with respect to which

24 a record of decision has been issued by the
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1 President under section 104 of such Act (42

2 U.S.C. 9604);

3 (iv) any facility that is subject to cor4 rective action under section 3004(u) or

5 3008(h) of the Solid Waste Disposal Act (42

6 U.S.C. 6924(u) or 6928(h)) at the time that

7 an application for loan assistance with re8 spect to the facility is submitted under this

9 title, including any facility with respect to

10 which a corrective action permit or order

11 has been issued or modified to require the

12 implementation of corrective measures;

13 (v) any land disposal unit with respect

14 to which a closure notification under sub15 title C of the Solid Waste Disposal Act (42

16 U.S.C. 6921 et seq.) has been submitted and

17 closure requirements have been specified in

18 a closure plan or permit;

19 (vi) any facility at which there has

20 been a release of polychlorinated biphenyls

21 and that is subject to the requirements of

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

23 2601 et seq.);

24 (vii) any facility with respect to which

25 an administrative order on consent or a ju-
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1 dicial consent decree requiring cleanup has

2 been entered into by the President under—

3 (I) the Comprehensive Environ4 mental Response, Compensation, and

5 Liability Act of 1980 (42 U.S.C. 9601

6 et seq.);

7 (II) the Solid Waste Disposal Act

8 (42 U.S.C. 6901 et seq.);

9 (III) the Federal Water Pollution

10 Control Act (33 U.S.C. 1251 et seq.);

11 (IV) the Toxic Substances Control

12 Act (15 U.S.C. 2601 et seq.); or

13 (V) title XIV of the Public Health

14 Service Act (commonly known as the

15 ‘‘Safe Drinking Water Act’’) (42

16 U.S.C. 300f et seq.); and

17 (viii) any facility at which assistance

18 for response activities may be obtained pur19 suant to subtitle I of the Solid Waste Dis20 posal Act (42 U.S.C. 6991 et seq.) from the

21 Leaking Underground Storage Tank Trust

22 Fund established by section 9508 of the In23 ternal Revenue Code of 1986.

24 (4) CHARGE OFF.—The term ‘‘charge off’’, with

25 respect to a loan of a lender, means to recognize a loss
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1 on the loan on the books of the lender in accordance

2 with applicable bank regulatory accounting prin3 ciples, or, if the lender is not a federally regulated

4 lender, generally accepted accounting principles.

5 (5) CONTAMINANT.—The term ‘‘contaminant’’

6 includes any hazardous substance (as defined in sec7 tion 101(14) of the Comprehensive Environmental Re8 sponse, Compensation, and Liability Act of 1980 (42

9 U.S.C. 9601(14))) and oil (as defined in section

10 1001(23) of the Oil Pollution Act of 1990 (33 U.S.C.

11 2701(23))).

12 (6) CURRENT OWNER.—The term ‘‘current

13 owner’’ means, with respect to a voluntary cleanup,

14 an owner at the time of the cleanup.

15 (7) DISPOSAL.—The term ‘‘disposal’’ has the

16 meaning provided the term in section 1004(3) of the

17 Solid Waste Disposal Act (42 U.S.C. 6903(3)).

18 (8) ELIGIBLE COSTS.—The term ‘‘eligible costs’’

19 means administrative and nonadministrative costs.

20 (9) ENVIRONMENT.—The term ‘‘environment’’

21 has the meaning provided the term in section 101(8)

22 of the Comprehensive Environmental Response, Com23 pensation, and Liability Act of 1980 (42 U.S.C.

24 9601(8)).
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1 (10) ENVIRONMENTAL CONTAMINATION.—The

2 term ‘‘environmental contamination’’ means the exist3 ence at a facility of 1 or more contaminants that may

4 pose a risk to human health or the environment.

5 (11) FACILITY.—The term ‘‘facility’’ has the

6 meaning provided the term in section 101(9) of the

7 Comprehensive Environmental Response, Compensa8 tion, and Liability Act of 1980 (42 U.S.C. 9601(9)).

9 (12) GROUND WATER.—The term ‘‘ground

10 water’’ has the meaning provided the term in section

11 101(12) of such Act (42 U.S.C. 9601(12)).

12 (13) INDIAN TRIBE.—The term ‘‘Indian tribe’’

13 has the meaning provided the term in section 101(36)

14 of such Act (42 U.S.C. 9601(36)).

15 (14) INITIATE.—The term ‘‘initiate’’, with re16 spect to a cleanup action, means to commence onsite

17 construction activities at an affected site.

18 (15) LENDER.—The term ‘‘lender’’ means—

19 (A) a private depository lender;

20 (B) a private nondepository lender; or

21 (C) a State agency or a local public agency

22 that has the authority under State or local law

23 to make loans.
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1 (16) LOCAL APPLICANT.—The term ‘‘local appli2 cant’’ means a local community development organi3 zation or local government.

4 (17) LOCAL COMMUNITY DEVELOPMENT ORGANI5 ZATION.—The term ‘‘local community development

6 organization’’ means a nonprofit organization that—

7 (A) has a history of serving the needs of

8 residents of the local community affected by an

9 affected site;

10 (B) maintains accountability to persons of

11 low income in the local community through sig12 nificant representation on the governing board of

13 the organization, and such other means as are

14 appropriate; and

15 (C) has the institutional and administrative

16 capacity for carrying out activities assisted

17 under this title (as determined by the Secretary).

18 (18) LOCAL GOVERNMENT.—The term ‘‘local gov19 ernment’’ has the meaning provided the term ‘‘unit of

20 general local government’’ in the first sentence of sec21 tion 102(a)(1) of the Housing and Community Devel22 opment Act of 1974 (42 U.S.C. 5302(a)(1)), except

23 that the term includes an Indian tribe.

24 (19) NATURAL RESOURCES.—The term ‘‘natural

25 resources’’ has the meaning provided the term in sec-
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1 tion 101(16) of the Comprehensive Environmental Re2 sponse, Compensation, and Liability Act of 1980 (42

3 U.S.C. 9601(16)).

4 (20) NONADMINISTRATIVE COSTS.—The term

5 ‘‘nonadministrative costs’’ includes the costs of—

6 (A) oversight for a cleanup at an affected

7 site by a contractor, current owner, or prospec8 tive purchaser;

9 (B) identifying the probable extent and na10 ture of environmental contamination at the af11 fected site, and the preferred manner of carrying

12 out a cleanup at the affected site;

13 (C) the cleanup, including onsite and offsite

14 treatment of contaminants; and

15 (D) monitoring ground water or other natu16 ral resources at the affected site.

17 (21) NONPROFIT ORGANIZATION.—The term

18 ‘‘nonprofit organization’’ means any private, non19 profit organization (including a State or locally char20 tered, nonprofit organization)—

21 (A) that is organized under State or local

22 laws;

23 (B) with respect to which no portion of the

24 net earnings inure to the benefit of a member,
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•S 1834 RCS1S

1 founder, contributor, or individual associated

2 with the organization;

3 (C) that complies with standards of finan4 cial accountability that the Secretary determines

5 to be acceptable; and

6 (D) that carries out activities related to the

7 retention or expansion of employment opportuni8 ties for, and improvement of economic and social

9 conditions of, persons of low income.

10 (22) OWNER.—The term ‘‘owner’’ has the mean11 ing provided the term in section 101(20) of the Com12 prehensive Environmental Response, Compensation,

13 and Liability Act of 1980 (42 U.S.C. 9601(20)), ex14 cept that the term also includes a unit of State or

15 local government that acquired ownership or control

16 involuntarily through bankruptcy, tax delinquency,

17 abandonment, or other circumstances in which the

18 government acquires title by virtue of the functions of

19 the government as a sovereign.

20 (23) PARTICIPATING LENDER.—The term ‘‘par21 ticipating lender’’ means a lender that—

22 (A) under State or local law has the author23 ity to make loans that are assisted under section

24 305; and
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1 (B) has entered into a participation agree2 ment with a participating State agency in ac3 cordance with such section.

4 (24) PARTICIPATING STATE AGENCY.—The term

5 ‘‘participating State agency’’ means a State agency

6 that has been selected for participation in the pro7 gram established under section 305 in accordance

8 with section 305(d).

9 (25) PERSON.—The term ‘‘person’’ has the mean10 ing provided the term in section 101(21) of the Com11 prehensive Environmental Response, Compensation,

12 and Liability Act of 1980 (42 U.S.C. 9601(21)).

13 (26) PERSONS OF LOW INCOME.—The term ‘‘per14 sons of low income’’ has the meaning provided the

15 term in section 102(a)(20) of the Housing and Com16 munity Development Act of 1974 (42 U.S.C.

17 5302(a)(20)).

18 (27) PROSPECTIVE PURCHASER.—The term

19 ‘‘prospective purchaser’’ means a prospective pur20 chaser of an affected site.

21 (28) RELEASE.—The term ‘‘release’’ has the

22 meaning provided the term in section 101(22) of the

23 Comprehensive Environmental Response, Compensa24 tion, and Liability Act of 1980 (42 U.S.C. 9601(22)).
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1 (29) RESPONSE ACTION.—The term ‘‘response

2 action’’ has the meaning provided the term ‘‘re3 sponse’’ in section 102(25) of such Act (42 U.S.C.

4 9601(25)).

5 (30) REVOLVING FUND.—The term ‘‘Revolving

6 Fund’’ means the Economic Redevelopment Revolving

7 Fund established under section 307.

8 (31) SECRETARY.—The term ‘‘Secretary’’ means

9 the Secretary of Housing and Urban Development.

10 (32) SITE CHARACTERIZATION.—

11 (A) IN GENERAL.—The term ‘‘site charac12 terization’’ means an investigation that deter13 mines the nature and extent of a release or po14 tential release of a hazardous substance at a site

15 and meets the requirements referred to in sub16 paragraph (B).

17 (B) INVESTIGATION.—For the purposes of

18 this paragraph, an investigation that meets the

19 requirements of this subparagraph—

20 (i) shall include—

21 (I) an onsite evaluation; and

22 (II) sufficient testing, sampling,

23 and other field data gathering activi24 ties to accurately analyze whether the

25 site is contaminated and the risks to
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•S 1834 RCS1S

1 human health and the environment

2 posed by the release of contaminants at

3 the site; and

4 (ii) may also include—

5 (I) review of existing information

6 (available at the time of the review);

7 and

8 (II) an offsite evaluation, if ap9 propriate.

10 (33) STATE.—The term ‘‘State’’ has the meaning

11 provided the term under section 101(27) of the Com12 prehensive Environmental Response, Compensation,

13 and Liability Act of 1980 (42 U.S.C. 9601(27)).

14 (34) VOLUNTARY CLEANUP.—The term ‘‘vol15 untary cleanup’’ means a response action at an af16 fected site—

17 (A) undertaken and financed by a current

18 owner or prospective purchaser subject to over19 sight and approval by a State; and

20 (B) with respect to which the current owner

21 or prospective purchaser agrees to pay all costs

22 of oversight by the State.

23 SEC. 304. VOLUNTARY CLEANUP GRANT PROGRAM.

24 (a) IN GENERAL.—
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1 (1) ESTABLISHMENT OF GRANT PROGRAM.—The

2 Administrator shall establish a program to provide a

3 grant to any State that submits an application that

4 is approved by the Administrator to establish or ex5 pand a State voluntary cleanup program that meets

6 the requirements of paragraph (3).

7 (2) CERTIFICATION.—In an application for a

8 grant under this section, a State shall be required to

9 certify that the voluntary cleanup program of the

10 State will meet the requirements of paragraph (3).

11 (3) REQUIREMENTS FOR STATE VOLUNTARY

12 CLEANUP PROGRAM.—A State voluntary cleanup pro13 gram meets the requirements of this paragraph if the

14 State—

15 (A) provides adequate opportunities for

16 public participation, including prior notice and

17 opportunity for comment, in selecting response

18 actions;

19 (B) provides technical assistance throughout

20 each voluntary cleanup;

21 (C) has the capability, through enforcement

22 or other mechanisms, of assuming the respon23 sibility for undertaking a cleanup if the current

24 owner or prospective purchaser fails or refuses to

25 complete the necessary cleanup;
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1 (D) provides adequate oversight and has

2 adequate enforcement authorities to ensure that

3 voluntary cleanups are completed in accordance

4 with Federal and State laws, including any on5 going operation and maintenance or long-term

6 monitoring activities;

7 (E) provides written approval of work plans

8 for response actions to current owners and pro9 spective purchasers before affected sites are ac10 quired, and provides written certification of

11 completions for voluntary cleanups to current

12 owners and prospective purchasers; and

13 (F) provides streamlined procedures to en14 sure expeditious voluntary cleanups.

15 (b) GRANTS.—

16 (1) IN GENERAL.—In carrying out the program

17 established under subsection (a), the Administrator

18 shall, subject to the availability of appropriations,

19 make a grant to the Governor of each State that sub20 mits an application to the Administrator that meets

21 the requirements of this section to conduct a State

22 voluntary cleanup program that the Administrator

23 approves.

24 (2) GRANT AMOUNT.—The amount of a grant

25 made to a State under subsection (a) shall be—
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1 (A) determined by the Administrator on the

2 basis of the financial need of the State for estab3 lishing or expanding a voluntary cleanup pro4 gram; and

5 (B) in an amount not less than $200,000,

6 and not more than $500,000, for each fiscal year.

7 (3) REPORTING.—Each State that receives a

8 grant under subsection (a) shall submit to the Admin9 istrator, not later than 2 years after receipt of the

10 grant, a progress report that includes a description of

11 the cleanups made in accordance with the voluntary

12 cleanup program of the State.

13 (4) TERMINATION OF GRANTS.—If the Adminis14 trator determines that a State voluntary cleanup pro15 gram no longer meets the requirements of subsection

16 (a)(3), the Administrator may terminate a grant

17 made to the State and require full or partial repay18 ment of the grant.

19 (c) STATE CERTIFICATION.—Not later than 1 year

20 after receipt of an initial grant, and annually thereafter,

21 each Governor of a State that receives a grant under this

22 section shall submit to the Administrator a certification

23 that states that—

24 (1) the State voluntary cleanup program meets

25 the requirements of subsection (a)(3);
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1 (2) all cleanups achieved or undertaken pursuant

2 to the State voluntary cleanup program fully comply

3 with Federal and State laws;

4 (3) public participation opportunities have been

5 adequate during the process of selecting a cleanup

6 method for each voluntary cleanup;

7 (4) voluntary cleanups achieved or undertaken

8 pursuant to the State voluntary cleanup program

9 have been undertaken in a manner that has reduced

10 or eliminated risks to human health and the environ11 ment to the satisfaction of the State; and

12 (5) for any voluntary cleanup initiated pursuant

13 to the State voluntary cleanup program that has in14 creased risks to human health and the environment,

15 the State has taken timely and appropriate steps to

16 reduce or eliminate the risks.

17 (d) VOLUNTARY RESPONSE PROGRAM.—

18 (1) APPLICABILITY.—This subsection shall apply

19 to any facility, including a facility that has been

20 scored by the Administrator, or by a State scoring the

21 facility pursuant to a contract or cooperative agree22 ment, under the hazard ranking system referred to in

23 section 105(a)(8)(A) of the Comprehensive Environ24 mental Response, Compensation, and Liability Act of
283

•S 1834 RCS1S

1 1980 (42 U.S.C. 9605(a)(8)(A)) and that has received

2 a score of 28.5 or greater.

3 (2) NPL LISTING.—No facility addressed by a

4 work plan for a voluntary cleanup approved under a

5 program of a State approved under this section shall

6 be proposed for listing or listed on the National Pri7 orities List established under section 105 of such Act

8 (42 U.S.C. 9605) so long as substantial and continual

9 response actions are being undertaken to complete the

10 work plan for the voluntary cleanup in a timely

11 manner, as set forth in the work plan.

12 (3) COMPLETION OF CLEANUP.—

13 (A) IN GENERAL.—Except as provided in

14 subparagraph (B), the Administrator may not

15 list a facility addressed by a work plan for a vol16 untary cleanup approved under a program of a

17 State approved under this section on the Na18 tional Priorities List if—

19 (i) a potentially responsible party com20 pletes all work required by the work plan

21 for a voluntary cleanup approved under the

22 program of the State at the facility;

23 (ii) the facility has achieved the protec24 tive concentration levels and other stand-
284

•S 1834 RCS1S

1 ards specified in section 121 of such Act (42

2 U.S.C. 9621); and

3 (iii) public participation requirements

4 equivalent to the requirements in sections

5 113 and 117 of such Act (42 U.S.C. 9613

6 and 9617) have been complied with for the

7 cleanup action.

8 (B) RESCORING.—If a significant new re9 lease or threat of release occurs at the facility,

10 after completion of all work specified in subpara11 graph (A)(i), the Administrator may—

12 (i) when performing the scoring,

13 rescore the facility based on conditions at

14 the facility at the time of the scoring; and

15 (ii) list the facility if warranted by the

16 rescoring.

17 (4) NONCOMPLETION OF WORK.—

18 (A) IN GENERAL.—Subject to subpara19 graphs (B), (C), and (D), the Administrator

20 may list a facility addressed by a work plan for

21 a voluntary cleanup approved under a program

22 of a State approved under this section on the

23 National Priorities List if—

24 (i) a potentially responsible party has

25 completed the work required by the work
285

•S 1834 RCS1S

1 plan at the facility and public participa2 tion requirements equivalent to the require3 ments in sections 113 and 117 of such Act

4 (42 U.S.C. 9613 and 9617) have been com5 plied with for the work; and

6 (ii) the facility has not achieved the

7 protective concentration levels and other

8 standards specified in section 121 of such

9 Act (42 U.S.C. 9621).

10 (B) SCORING PURSUANT TO AGREE11 MENTS.—If the Administrator or a State scores

12 the facility pursuant to a contract or cooperative

13 agreement, the Administrator or the State shall

14 take into account conditions at the facility at the

15 time of the scoring when performing the scoring.

16 (C) CHANGE IN QUALIFICATION FOR LIST17 ING.—If the facility prior to the work required

18 by the work plan would have qualified for listing

19 on the National Priorities List, but after the

20 completion of the work is no longer qualified for

21 listing on the National Priorities List, the Ad22 ministrator may utilize the Fund (as defined in

23 section 101(11) of such Act (42 U.S.C. 9601(11))

24 and other authorities of such Act (42 U.S.C.

25 9601 et seq.) to ensure achievement of the protec-
286

•S 1834 RCS1S

1 tive concentration levels and other standards

2 specified in section 121 of such Act (42 U.S.C.

3 9621).

4 (D) RELATIONSHIP TO OTHER AUTHOR5 ITY.—Nothing in this section shall affect the

6 ability of the Administrator to use the authority

7 provided by section 104, 106, or 107 of such Act

8 (42 U.S.C. 9604, 9606, and 9607) with respect

9 to a facility.

10 (e) EFFECT OF CLEANUP.—The performance of a vol11 untary cleanup under a State program approved under this

12 section shall not constitute an admission of liability under

13 any Federal, State, or local law (including a regulation)

14 or in any citizens suit or other private action.

15 (f) CONSISTENCY WITH NATIONAL CONTINGENCY

16 PLAN.—A voluntary cleanup carried out under a State pro17 gram approved under this section shall be presumed to be

18 consistent with the national contingency plan (as defined

19 in section 101(31) of the Comprehensive Environmental Re20 sponse, Compensation, and Liability Act of 1980 (42 U.S.C.

21 9601(31))) for the purposes of private cost recovery claims

22 under such Act (42 U.S.C. 9601 et seq.).

23 (g) EFFECT ON LIABILITY.—

24 (1) IN GENERAL.—Except as provided in para25 graph (2), nothing in this section is intended to affect
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•S 1834 RCS1S

1 the liability of any person or to affect any other re2 sponse authority provided under any law or regula3 tion relating to environmental contamination, includ4 ing—

5 (A) the Toxic Substances Control Act (15

6 U.S.C. 2601 et seq.);

7 (B) the Federal Water Pollution Control Act

8 (33 U.S.C. 1251 et seq.);

9 (C) title XIV of the Public Health Service

10 Act (commonly known as the ‘‘Safe Drinking

11 Water Act’’) (42 U.S.C. 300f et seq.);

12 (D) the Solid Waste Disposal Act (42

13 U.S.C. 6901 et seq.); and

14 (E) the Comprehensive Environmental Re15 sponse, Compensation, and Liability Act of 1980

16 (42 U.S.C. 9601 et seq.).

17 (2) EXCEPTION.—The successful completion of a

18 voluntary cleanup at a facility pursuant to a State

19 voluntary cleanup program approved under this sec20 tion shall be considered for the purpose of section

21 107(n)(1)(C) of the Comprehensive Environmental

22 Response, Compensation, and Liability Act of 1980

23 (as added by section 403(a)(2)) as evidence that a

24 person that acquires ownership of the facility is a

25 bona fide prospective purchaser of the facility within
288

•S 1834 RCS1S

1 the meaning of section 101(39)(D) of such Act (42

2 U.S.C. 9601(39)(D)).

3 (3) EFFECT ON STATUS AS BONA FIDE PROSPEC4 TIVE PURCHASER.—Nothing in this section is in5 tended to require any person to participate in a State

6 voluntary cleanup program approved under this sec7 tion or in any other voluntary cleanup program in

8 order to qualify as a bona fide prospective purchaser

9 for the purpose of section 107(n)(1)(C) of such Act (as

10 added by section 403(a)(2)).

11 (h) STATUTORY CONSTRUCTION.—Nothing in this title

12 is intended—

13 (1) to impose any requirement on a State vol14 untary cleanup program existing on or after the date

15 of enactment of this Act if a grant under this section

16 has not been made to the Governor of a State; or

17 (2) to preclude a Governor of a State with a vol18 untary cleanup program referred to in paragraph (1)

19 from submitting an application for a grant under

20 this section.

21 SEC. 305. ECONOMIC REDEVELOPMENT CREDIT ASSIST22 ANCE PROGRAM.

23 (a) IN GENERAL.—

24 (1) ESTABLISHMENT OF PROGRAM.—The Sec25 retary, in consultation with the Administrator, shall
289

•S 1834 RCS1S

1 establish a program in accordance with this section

2 (referred to in this section as the ‘‘program’’) to pro3 vide to an eligible applicant an interest subsidy

4 under subsection (b)(1) or a credit enhancement

5 under subsection (b)(2), or both.

6 (2) PURPOSES.—A loan assisted under this sec7 tion shall be used only—

8 (A)(i) for the cleanup of an affected site at

9 which a voluntary cleanup is being conducted, or

10 is proposed to be conducted, under a State vol11 untary cleanup program that meets the require12 ments of section 304(a)(3); and

13 (ii) by an applicant who is a current owner

14 or prospective purchaser of the affected site or a

15 local applicant; or

16 (B)(i) to conduct a site characterization for

17 an affected site at which a voluntary cleanup is

18 being conducted, or is proposed to be conducted,

19 under a State voluntary cleanup program that

20 meets the requirements of section 304(a)(3); and

21 (ii) by an applicant who is a local appli22 cant.

23 (3) MAXIMUM AMOUNT OF AGGREGATE ASSIST24 ANCE.—
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•S 1834 RCS1S

1 (A) SITE CHARACTERIZATIONS.—The aggre2 gate amount of assistance under this section for

3 a site characterization of an affected site may

4 not exceed $100,000.

5 (B) CLEANUP ACTIONS.—The aggregate

6 amount of assistance under this section for a

7 cleanup action at an affected site may not exceed

8 the lesser of—

9 (i) an amount equal to 75 percent of

10 the total eligible costs of carrying out the

11 cleanup action; and

12 (ii) $900,000.

13 (4) DISQUALIFICATION.—An applicant who has

14 adequate resources to conduct a cleanup at the site,

15 without financial assistance provided under the pro16 gram, shall not be eligible for financial assistance

17 with respect to the site under the program.

18 (b) FORMS OF ASSISTANCE.—

19 (1) INTEREST SUBSIDIES.—

20 (A) IN GENERAL.—The Secretary may pro21 vide assistance under the program in the form of

22 interest subsidy payments on site characteriza23 tion loans and cleanup loans that are made by

24 participating lenders.

25 (B) AMOUNT OF SUBSIDIES.—
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•S 1834 RCS1S

1 (i) IN GENERAL.—An interest subsidy

2 under this paragraph shall be in an amount

3 equal to the difference between—

4 (I) the market rate of interest that

5 would otherwise apply to the loan (as

6 determined by the Secretary); and

7 (II) the applicable rate of interest

8 determined under clause (ii).

9 (ii) APPLICABLE RATES.—The applica10 ble rate of interest referred to in clause

11 (i)(II) is—

12 (I) in the case of a local govern13 ment entity, 1 percentage point below

14 the average current yield on market15 able obligations of the United States

16 Treasury having comparable matu17 rities;

18 (II) in the case of a prospective

19 purchaser of an affected site or a local

20 community development organization,

21 1 percentage point above the average

22 current yield on marketable obligations

23 of the United States Treasury having

24 comparable maturities; or
292

•S 1834 RCS1S

1 (III) in the case of a current

2 owner of an affected site (other than a

3 local applicant), 2 percentage points

4 above the average current yield on

5 marketable obligations of the United

6 States Treasury having comparable

7 maturities.

8 (C) PASS-THROUGH OF INTEREST SUB9 SIDY.—Each participating lender that receives

10 an interest subsidy payment under this para11 graph shall pass through to the loan applicant

12 the full amount of the subsidy.

13 (2) CREDIT ENHANCEMENT.—

14 (A) IN GENERAL.—The Secretary may pro15 vide assistance under the program in the form of

16 credit enhancement for site characterization

17 loans and cleanup loans that are made by par18 ticipating lenders. The credit enhancement shall

19 consist of a pledge that funds in the Revolving

20 Fund will be paid to the lender if all or part of

21 a loan assisted under this paragraph is charged

22 off.

23 (B) MAXIMUM AMOUNT OF CREDIT EN24 HANCEMENT.—
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•S 1834 RCS1S

1 (i) IN GENERAL.—The total amount of

2 credit enhancement provided under this

3 paragraph with respect to a loan may not

4 exceed the lesser of—

5 (I) an amount equal to 50 percent

6 of the outstanding balance of the loan;

7 and

8 (II) an amount equal to 50 per9 cent of the net loss on the loan as cal10 culated under clause (ii).

11 (ii) CALCULATION OF NET LOSS.—The

12 net loss referred to in clause (i)(II) shall be

13 equal to the difference between—

14 (I) the sum of the principal and

15 the accrued, unpaid interest on the

16 loan that the participating lender

17 charges off; and

18 (II) the difference between—

19 (aa) the gross recovery on the

20 loan; and

21 (bb) the out-of-pocket costs of

22 the recovery.

23 (C) SPECIAL LOAN TERMS.—

24 (i) INTEREST RATE AND FEES.—A

25 loan assisted under this paragraph may be
294

•S 1834 RCS1S

1 made with such an interest rate, and with

2 such fees, as are agreed on by the partici3 pating lender and the applicant, consistent

4 with applicable law. In determining the in5 terest rate and fees, the participating lender

6 shall take into account the amounts that the

7 participating lender is required to deposit

8 into the loss reserve fund of the lender under

9 subparagraph (D).

10 (ii) LINES OF CREDIT.—If a loan to be

11 assisted under this paragraph is in the form

12 of a line of credit, the amount of the loan

13 shall be considered to be the maximum

14 amount that can be drawn by the applicant

15 against the line of credit.

16 (D) LOSS RESERVE FUND.—

17 (i) IN GENERAL.—As a condition of as18 sistance under this paragraph, each partici19 pating lender that receives a pledge of funds

20 in the Revolving Fund shall establish a loss

21 reserve fund with respect to the portfolio of

22 loans made by the lender under this para23 graph. Each loss reserve fund shall be estab24 lished for the purposes of—
295

•S 1834 RCS1S

1 (I) receiving the amounts required

2 to be deposited by the lender under

3 clause (ii) and any interest earned

4 under clause (iii); and

5 (II) disbursing funds, in order to

6 cover losses sustained by the partici7 pating lender in connection with loans

8 that are assisted under this paragraph.

9 (ii) DEPOSITS TO FUND.—

10 (I) INITIAL DEPOSIT.—As soon as

11 practicable after receiving a notice of

12 approval by the participating State

13 agency of a request for credit enhance14 ment assistance under this paragraph

15 (but not later than 10 business days

16 after the participating lender closes

17 with the applicant a loan assisted

18 under this paragraph), a participating

19 lender shall deposit into the loss reserve

20 fund such amount as is necessary to

21 ensure that the loss reserve fund, to22 gether with the total amount of pledges

23 of funds in the Revolving Fund made

24 by the participating State agency to

25 the participating lender under this
296

•S 1834 RCS1S

1 paragraph, would be expected to cover

2 the full amount of losses on the port3 folio of loans made by the lender under

4 this paragraph, as determined under

5 subclause (II).

6 (II) DETERMINATION OF

7 LOSSES.—The amount of losses referred

8 to in subclause (I) shall be determined

9 in accordance with applicable bank

10 regulatory accounting principles, or, if

11 the lender is not a federally regulated

12 lender, generally accepted accounting

13 principles.

14 (III) ADJUSTMENT OF AMOUNTS

15 IN FUND.—During the term of each

16 loan assisted under this paragraph and

17 held by a participating lender, and

18 with respect to each loan, the partici19 pating lender shall make such addi20 tional deposits into the loss reserve

21 fund of the lender as are necessary to

22 ensure compliance with subclauses (I)

23 and (II).

24 (iii) INVESTMENT AUTHORITY.—Sub25 ject to other applicable law, the participat-
297

•S 1834 RCS1S

1 ing lender may invest funds held in the loss

2 reserve fund of the lender in a manner that

3 the participating State agency determines is

4 safe and liquid.

5 (E) CLAIMS.—

6 (i) FILING.—

7 (I) IN GENERAL.—If a participat8 ing lender charges off all or part of a

9 loan assisted under this paragraph, the

10 lender may file a claim for reimburse11 ment with the participating State

12 agency by submitting a form that—

13 (aa) includes a statement by

14 the participating lender that the

15 lender is filing the claim in ac16 cordance with the terms of the ap17 plicable participation agreement;

18 and

19 (bb) contains such other in20 formation as is required by the

21 participating State agency.

22 (II) TIMING.—A claim filed under

23 subclause (I) shall be filed at the time

24 the participating lender charges off all

25 or part of the loan. The participating
298

•S 1834 RCS1S

1 lender shall determine when and how

2 much to charge off on the loan, in a

3 manner that is consistent with—

4 (aa) the usual method of the

5 lender for making the determina6 tions on business loans that are

7 not loans assisted under this

8 paragraph; and

9 (bb) the applicable account10 ing principles referred to in sub11 paragraph (D)(ii)(II).

12 (III) AMOUNT OF CLAIMS.—The

13 amount of a claim filed by a partici14 pating lender may include the amount

15 of principal charged off, plus accrued,

16 unpaid interest and out-of-pocket loan

17 collection expenses.

18 (ii) PAYMENT OF CLAIMS.—

19 (I) DETERMINATION BY THE PAR20 TICIPATING STATE AGENCY.—As soon

21 as practicable after receipt of a claim

22 filed under clause (i), the participating

23 State agency shall determine whether

24 the claim meets the requirements of

25 this paragraph. Subject to subclause
299

•S 1834 RCS1S

1 (III), if the claim meets the require2 ments, the participating State agency

3 shall—

4 (aa) permit the participating

5 lender to withdraw funds from the

6 loss reserve fund of the lender es7 tablished under subparagraph (D)

8 in an amount not to exceed the

9 portion of the loss that is required

10 to be paid by the lender under the

11 participation agreement; and

12 (bb) if the amount referred to

13 in item (aa) is not sufficient to

14 pay the full amount of the claim,

15 submit the balance of the claim to

16 the Secretary for payment in ac17 cordance with subclause (II).

18 (II) PAYMENT BY THE SEC19 RETARY.—Subject to subparagraph (B)

20 and subsection (a)(3), the Secretary

21 shall request the Secretary of the

22 Treasury to pay, and the Secretary of

23 the Treasury shall pay, to the partici24 pating State agency for payment to the

25 participating lender from the Revolv-
300

•S 1834 RCS1S

1 ing Fund an amount equal to the dif2 ference between—

3 (aa) the full amount of the

4 claim referred to in subclause

5 (I)(bb); and

6 (bb) the amount withdrawn

7 from the loss reserve fund of the

8 lender under subclause (I)(aa).

9 (III) DENIAL OF CLAIMS.—A par10 ticipating State agency or the Sec11 retary may deny a claim if—

12 (aa) a statement or warranty

13 made by the participating lender

14 under the participation agreement

15 to the participating State agency

16 at the time that the request for as17 sistance under this paragraph was

18 made for the loan, or at the time

19 that the claim was submitted, was

20 known by the participating lender

21 to be false; or

22 (bb) the claim otherwise does

23 not comply with the participation

24 agreement.
301

•S 1834 RCS1S

1 (IV) RESUBMISSION OF CLAIMS

2 AFTER DENIAL.—If a claim is denied

3 under subclause (III)(bb), the partici4 pating lender may resubmit the claim

5 with additional information that ad6 dresses the reasons for the denial of the

7 claim. A determination on the resub8 mitted claim shall be made in accord9 ance with this clause.

10 (iii) SUBSEQUENT RECOVERY OF CLAIM

11 AMOUNT.—

12 (I) REPAYMENT TO LOSS RESERVE

13 FUND.—If, subsequent to payment of a

14 claim by the participating State agen15 cy, the participating lender recovers

16 from an applicant any amount for

17 which payment of the claim was made

18 under clause (ii), the participating

19 lender shall promptly pay to the loss

20 reserve fund of the lender established

21 under subparagraph (D) an amount

22 equal to the product of—

23 (aa) the applicable amount

24 calculated under subclause (III);

25 and
302

•S 1834 RCS1S

1 (bb) the percentage of the

2 claim that was withdrawn from

3 the loss reserve fund of the lender

4 under clause (ii)(I)(aa).

5 (II) REPAYMENT TO PARTICIPAT6 ING STATE AGENCY.—If the participat7 ing lender makes a payment under

8 subclause (I), the lender shall promptly

9 pay to the participating State agency,

10 for transfer to the Secretary of the

11 Treasury for deposit into the general

12 fund of the Treasury, an amount equal

13 to the difference between—

14 (aa) the applicable amount

15 calculated under subclause (III);

16 and

17 (bb) the amount paid by the

18 lender to the loss reserve fund of

19 the lender under subclause (I).

20 (III) APPLICABLE AMOUNT.—The

21 applicable amount referred to in

22 subclauses (I) and (II) shall be equal to

23 the difference between—
303

•S 1834 RCS1S

1 (aa) the amount recovered

2 from the applicant referred to in

3 subclause (I); and

4 (bb) any out-of-pocket ex5 penses incurred by the participat6 ing lender in the collection of the

7 amount referred to in item (aa).

8 (F) RETENTION OF PLEDGE AMOUNTS.—

9 (i) IN GENERAL.—Subject to subpara10 graph (B) and subsection (a)(3), if a par11 ticipating lender makes, in each fiscal year

12 of the Federal Government, at least 1 new

13 loan assisted under this paragraph, the

14 lender may retain all pledges of amounts in

15 the Revolving Fund previously obtained by

16 the lender under this paragraph.

17 (ii) RECAPTURE.—

18 (I) IN GENERAL.—If a participat19 ing lender does not meet the condition

20 described in clause (i), the participat21 ing State agency shall annually notify

22 the Secretary of the amount by which

23 the total pledge of amounts in the Re24 volving Fund attributable to the lender

25 should be reduced because of the reduc-
304

•S 1834 RCS1S

1 tion in the balances of the loans made

2 by the lender assisted under this para3 graph during the previous year. The

4 Secretary shall make the reduction.

5 (II) USE OF AMOUNTS MADE

6 AVAILABLE.—The Secretary may

7 pledge amounts in the Revolving Fund

8 made available under subclause (I) as

9 credit enhancement assistance under

10 this paragraph to any eligible partici11 pating lender.

12 (c) DISTRIBUTION OF ASSISTANCE.—

13 (1) ANNOUNCEMENT BY SECRETARY.—Not later

14 than September 30, 1994, and each September 30

15 thereafter, the Secretary shall publish in the Federal

16 Register, and in a newspaper of general circulation

17 (such as the Commerce Business Daily), the amount

18 of funds available for assistance under the program

19 for the following fiscal year.

20 (2) ANNOUNCEMENT BY PARTICIPATING LEND21 ERS.—Not later than 30 days after the date of publi22 cation under paragraph (1), each participating lend23 er shall publicly announce, in the manner specified

24 by the participating State agency, the offer of the
305

•S 1834 RCS1S

1 lender to make loans under the program to eligible

2 applicants.

3 (3) REQUEST TO STATE AGENCIES.—

4 (A) IN GENERAL.—After the termination of

5 a period (specified by the Secretary by regula6 tion) that is sufficient to permit eligible appli7 cants to apply for assistance under the program,

8 the participating lender shall notify the partici9 pating State agency of the amount of assistance

10 under the program that the lender determines is

11 necessary in order to assist eligible applicants

12 that have filed applications for loans assisted

13 under the program with the lender.

14 (B) CERTIFICATION.—With respect to each

15 loan for which the lender requests assistance

16 under the program, the participating lender

17 shall certify to the participating State agency

18 under the participation agreement that—

19 (i) the lender would not make the loan

20 without the requested assistance because the

21 risk of underwriting the loan would not be

22 acceptable to the lender; and

23 (ii) each loan meets the requirements of

24 this section.
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•S 1834 RCS1S

1 (4) REQUEST OF FUNDS BY STATE AGENCIES.—

2 Based on the submissions to the participating State

3 agency under paragraph (3), the participating State

4 agency may request assistance from the Secretary

5 under the program. The Secretary and the participat6 ing State agency shall allocate assistance in accord7 ance with subsection (f).

8 (d) SELECTION OF PARTICIPATING STATE AGEN9 CIES.—

10 (1) IN GENERAL.—

11 (A) SELECTION BY THE GOVERNOR.—Sub12 ject to subparagraph (B), the Governor of a State

13 that has a voluntary cleanup program that meets

14 the requirements of section 304(a)(3) may select

15 a State agency to be the participating State

16 agency under the program. The participating

17 State agency shall distribute assistance provided

18 by the Secretary under the program.

19 (B) DISAPPROVAL BY THE SECRETARY.—

20 The Secretary may disapprove the selection of

21 the Governor under subparagraph (A) if the Sec22 retary determines that the agency is not capable

23 of carrying out, or is in fact not carrying out,

24 the duties of the agency under the program. If

25 the selection is disapproved, whether before or
307

•S 1834 RCS1S

1 during participation by the agency in the pro2 gram, the Governor may select another State

3 agency to be the participating State agency. The

4 Secretary may disapprove the new selection in

5 accordance with this subparagraph.

6 (C) ASSUMPTION OF DUTIES BY THE SEC7 RETARY.—

8 (i) IN GENERAL.—If, after disapproval

9 of a selection of the Governor of a State

10 under subparagraph (B), the Governor fails

11 to select a participating State agency that

12 is not disapproved by the Secretary, the

13 Secretary shall assume the duties of the par14 ticipating State agency of the State under

15 the program until the earlier of—

16 (I) the selection by the Governor

17 of a participating State agency that is

18 not disapproved by the Secretary; and

19 (II) the repayment of all loans for

20 which assistance is provided under the

21 program in the State.

22 (ii) TERMINATION OF ASSISTANCE.—

23 (I) IN GENERAL.—Subject to

24 subclause (II), the Secretary may not

25 provide assistance under this title to or
308

•S 1834 RCS1S

1 through a State for any fiscal year of

2 the Federal Government that is subse3 quent to a fiscal year during which the

4 Governor of the State fails to select a

5 participating State agency that is not

6 disapproved by the Secretary.

7 (II) WAIVER OF TERMINATION.—

8 If the Governor selects a participating

9 State agency that is not disapproved

10 by the Secretary prior to the end of a

11 fiscal year, the Secretary may waive

12 the termination of assistance under

13 subclause (I) for the fiscal year and

14 subsequent fiscal years.

15 (2) CONSULTATION WITH ENVIRONMENTAL AGEN16 CY.—If the participating State agency selected under

17 this subsection is not the primary agency of the State

18 concerned with environmental regulation, the partici19 pating State agency shall carry out the duties of the

20 agency under the program in consultation with the

21 appropriate State environmental agency.

22 (3) TERMINATION BY THE PARTICIPATING STATE

23 AGENCY.—

24 (A) IN GENERAL.—With the approval of the

25 Governor of the State, the participating State
309

•S 1834 RCS1S

1 agency may terminate the participation of the

2 State agency in the program. A termination

3 shall be prospective only, and may not apply to

4 loans assisted under the program prior to the

5 termination.

6 (B) RESELECTION BY THE GOVERNOR.—If

7 the participating State agency terminates par8 ticipation in the program, the Governor of the

9 State may select another State agency in accord10 ance with paragraph (1).

11 (e) PARTICIPATION AGREEMENTS.—

12 (1) IN GENERAL.—A participating State agency

13 may enter into a participation agreement under this

14 subsection with a lender that is determined by the

15 participating State agency to have sufficient commer16 cial lending experience and financial and managerial

17 capacity to participate in and comply with the re18 quirements of the program.

19 (2) PARTICIPATING LENDERS.—Upon entering

20 into the participation agreement with the participat21 ing State agency, the lender shall become a partici22 pating lender eligible to receive assistance for loans

23 under the program.

24 (3) TERMS OF AGREEMENT.—The participation

25 agreement between a participating State agency and
310

•S 1834 RCS1S

1 a participating lender shall incorporate appropriate

2 provisions of this section and may not include any

3 provision inconsistent with this section.

4 (4) ASSISTED LOAN TERMS.—

5 (A) LOANS.—A participating lender may

6 make a loan with assistance under the program

7 to an eligible applicant described in subsection

8 (a) that submits an application to the partici9 pating lender that is approved by the lender.

10 (B) LOAN APPLICATION.—An application

11 for a loan under the program shall be in such

12 form as the participating State agency, in con13 sultation with the Secretary, determines is ap14 propriate, and shall include—

15 (i) a description of the affected site, in16 cluding the nature and extent of any known

17 or suspected environmental contamination

18 at the affected site and the legal description

19 of the real property associated with the af20 fected site;

21 (ii) a complete description of the fi22 nancial standing of the applicant that in23 cludes a description of the assets, cash flow,

24 and liabilities of the applicant;
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1 (iii) a written certification that the

2 applicant has attempted in good faith, and

3 has been unable, to secure financing not

4 subject to assistance under the program

5 from a private or public lending institution

6 for the cleanup action that is the subject of

7 the loan application, and specifying—

8 (I) the name of each lending insti9 tution to which the applicant submit10 ted an application for a loan; and

11 (II) with respect to each applica12 tion to a lending institution referred to

13 in subclause (I)—

14 (aa) the date that the loan

15 application was submitted and

16 the date that the applicant was

17 notified of the refusal;

18 (bb) the amount of the loan

19 requested;

20 (cc) the term of the loan re21 quested;

22 (dd) proof of the refusal of

23 the loan by the lending institu24 tion; and
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•S 1834 RCS1S

1 (ee) the reasons given, if any,

2 by the lending institution for the

3 refusal of the loan;

4 (iv) the proposed method, and antici5 pated period of time required, to clean up

6 the environmental contamination at the af7 fected site;

8 (v) an estimate of the proposed total

9 cost of the site characterization or cleanup

10 to be conducted at the site; and

11 (vi) an analysis that demonstrates the

12 potential of the affected site for stimulating

13 economic development on completion of the

14 cleanup of the site.

15 (C) LOAN APPROVAL.—In determining

16 whether to make a loan under the program, the

17 participating lender shall—

18 (i) consider the need of the applicant

19 for financial assistance, taking into consid20 eration the financial resources available to

21 the applicant;

22 (ii) consider the ability of the appli23 cant to repay the loan in a timely manner;

24 and
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1 (iii) require that the affected site have

2 demonstrable potential for stimulating new

3 and continuing economic development on

4 completion of the cleanup, in light of—

5 (I) the estimated fair market

6 value of the affected site after cleanup;

7 (II) other economically viable,

8 commercial activity on real property—

9 (aa) located in the imme10 diate vicinity of the affected site

11 on the date of the consideration of

12 the application; or

13 (bb) projected to be located in

14 the immediate vicinity of the af15 fected site by the date that is 5

16 years after the date of the consid17 eration of the application;

18 (III) the potential of the affected

19 site for creating new, or expanding

20 then existing, business and employment

21 opportunities on completion of the

22 cleanup of the site;

23 (IV) the estimated additional tax

24 revenues expected to be generated at the

25 site by the economic redevelopment;
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1 (V) whether the site is located in

2 an economically distressed community,

3 including an enterprise zone (as de4 fined by applicable law);

5 (VI) whether the cleanup and the

6 proposed redevelopment is consistent

7 with any applicable State or local

8 community economic development

9 plan; and

10 (VII) such other factors as the

11 participating State agency, in con12 sultation with the Secretary, considers

13 relevant to carry out the purposes of

14 the program.

15 (D) STATE AGENCY APPROVAL.—Each ap16 plication for a loan assisted under the program

17 shall include a written statement by the State

18 agency under whose voluntary program the vol19 untary cleanup is being conducted, or is pro20 posed to be conducted, that the estimated total

21 cost of the voluntary cleanup is reasonable.

22 (E) LOAN AGREEMENTS.—

23 (i) IN GENERAL.—Each loan made by

24 a participating lender under the program
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•S 1834 RCS1S

1 shall be made pursuant to a loan agree2 ment.

3 (ii) MATURITY PERIOD.—The maturity

4 period of the loan (as determined by the

5 participating lender) may not exceed 10

6 years.

7 (iii) COMPLIANCE WITH CLEANUP

8 LAWS AND PROGRAMS.—The applicant shall

9 comply with Federal and State laws (in10 cluding regulations) applicable to the clean11 up and shall proceed in accordance with

12 any voluntary cleanup program in effect in

13 the State.

14 (iv) USE OF LOAN.—The applicant

15 shall—

16 (I) use the loan solely for the pur17 pose of conducting a site characteriza18 tion, or cleaning up the environmental

19 contamination, at the affected site; and

20 (II) use any excess funds to repay

21 to the participating lender the loan as22 sisted under this section as soon as

23 practicable after a determination by

24 an appropriate official of the appro25 priate State environmental agency that
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1 the site characterization or cleanup has

2 been completed.

3 (v) PROHIBITION OF TRANSFER.—A

4 loan under the program may be transferred

5 by a participating lender to another par6 ticipating lender only if the participating

7 State agency agrees to the transfer in writ8 ing. An applicant may not transfer the

9 right to receive a loan assisted under the

10 program.

11 (vi) ACCELERATION OF LOAN UPON

12 FAILURE TO INITIATE.—

13 (I) DECLARATION OF DEFAULT.—

14 The participating State agency shall

15 declare a loan assisted under the pro16 gram in default if, with respect to the

17 affected site that is the subject of the

18 loan—

19 (aa) a site characterization

20 or cleanup action has not been

21 initiated by the date that is 1

22 year after the date on which the

23 loan was made; or

24 (bb) the site characterization

25 or cleanup has not been completed
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•S 1834 RCS1S

1 in a timely manner (as deter2 mined by the participating State

3 agency).

4 (II) ACCELERATION.—Subject to

5 subclause (III), if the participating

6 State agency declares a loan in default

7 under subclause (I), the applicant shall

8 pay to the participating lender, as

9 soon as practicable after notice to the

10 applicant by the participating State

11 agency, the sum of—

12 (aa) the amount of the loan;

13 and

14 (bb) the amount of interest

15 accrued and unpaid on the

16 amount referred to in item (aa)

17 from the date the loan was made.

18 (III) WAIVER.—The participating

19 State agency may waive the require20 ment for acceleration under subclause

21 (II) if the participating State agency

22 determines that—

23 (aa) the applicant acted in a

24 manner consistent with the re25 quirements of this section; and
318

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1 (bb) exigent circumstances

2 contributed to the delay.

3 (vii) OTHER TERMS AND CONDI4 TIONS.—The loan agreement shall include

5 such other terms and conditions as the par6 ticipating State agency, in consultation

7 with the Secretary and the Administrator,

8 determines are necessary to protect the fi9 nancial interests of the United States and

10 meet the requirements of this title.

11 (5) OVERSIGHT BY STATE AGENCIES.—

12 (A) IN GENERAL.—The participating State

13 agency shall have access to such records of each

14 participating lender as the agency determines

15 are necessary to ensure compliance with the

16 agreement and to review certifications made

17 under subsection (c)(3)(B).

18 (B) REVOCATION OF ASSISTANCE.—

19 (i) IN GENERAL.—If the participating

20 State agency determines that a participat21 ing lender has knowingly and falsely made

22 a certification under subsection (c)(3)(B),

23 the participating State agency may revoke

24 and recover assistance provided to or

25 through the lender under the program.
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•S 1834 RCS1S

1 (ii) PAYMENT TO THE SECRETARY OF

2 THE TREASURY.—The participating State

3 agency shall pay any recovery under clause

4 (i) to the Secretary of the Treasury for de5 posit into the general fund of the Treasury.

6 (f) ALLOCATION OF ASSISTANCE.—

7 (1) BY THE SECRETARY.—Subject to subsection

8 (d)(1)(C), the Secretary shall allocate assistance

9 under the program among States that have voluntary

10 cleanup programs that meet the requirements of sec11 tion 304(a)(3) on an equitable basis, taking into ac12 count—

13 (A) the amount of assistance requested by

14 each participating State agency under subsection

15 (c)(4);

16 (B) the purpose of this title and the in17 tended beneficiaries of the programs established

18 under this title; and

19 (C) the needs for assistance throughout the

20 United States.

21 (2) BY THE STATE AGENCIES.—

22 (A) IN GENERAL.—Each participating

23 State agency shall allocate assistance under the

24 program among participating lenders that re-
320

•S 1834 RCS1S

1 quest the assistance on an equitable basis, taking

2 into account—

3 (i) the purpose of this title and the in4 tended beneficiaries of the programs estab5 lished under this title; and

6 (ii) the needs for assistance throughout

7 the State.

8 (B) REPORT.—Not less often than annually,

9 each participating State agency shall report to

10 the Secretary on the allocation of assistance

11 under the program within the State.

12 (g) ENFORCEMENT.—

13 (1) IN GENERAL.—If a person fails to comply

14 with any condition of a participation agreement or

15 a loan agreement entered into under this section, the

16 Secretary may request the Attorney General of the

17 United States to commence a civil action in an ap18 propriate district court of the United States to enforce

19 the participation agreement or loan agreement.

20 (2) JURISDICTION OF DISTRICT COURT.—The

21 district court shall have jurisdiction to enforce the

22 participation agreement or loan agreement and grant

23 such relief as the public interest and the equities of

24 the case may require.
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1 SEC. 306. REGULATIONS.

2 (a) BY THE ADMINISTRATOR.—Subject to subsection

3 (c), the Administrator shall issue such regulations as are

4 necessary to carry out section 304.

5 (b) BY THE SECRETARY.—Subject to subsection (c), the

6 Secretary shall issue such regulations as are necessary to

7 carry out section 305.

8 (c) CONTENTS OF REGULATIONS.—The regulations

9 shall include such procedures and standards as the Sec10 retary or the Administrator, as appropriate, considers nec11 essary, including procedures and standards for evaluating

12 an application for a grant or credit assistance submitted

13 under this title.

14 SEC. 307. ECONOMIC REDEVELOPMENT REVOLVING FUND.

15 (a) IN GENERAL.—There is established in the Treasury

16 of the United States a trust fund to be known as the ‘‘Eco17 nomic Redevelopment Revolving Fund’’, consisting of such

18 amounts as are appropriated to the Revolving Fund, or

19 transferred or credited to the Revolving Fund pursuant to

20 this section.

21 (b) TRANSFERS TO THE REVOLVING FUND.—There are

22 transferred to the Revolving Fund amounts equivalent to

23 the amounts received in the Treasury pursuant to sub24 sections (b)(2)(E)(iii) and (e)(5)(B)(ii) of section 305.

25 (c) MANAGEMENT OF THE REVOLVING FUND.—

26 (1) INVESTMENT.—
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•S 1834 RCS1S

1 (A) IN GENERAL.—The Secretary of the

2 Treasury shall invest such portion of the Revolv3 ing Fund as is not, in the judgment of the Sec4 retary of the Treasury, required to meet current

5 withdrawals. The investments may be made only

6 in interest-bearing obligations of the United

7 States. For the purpose of investments, obliga8 tions may be acquired—

9 (i) on original issue at the issue price;

10 or

11 (ii) by purchase of outstanding obliga12 tions at the market price.

13 (B) SALE OF OBLIGATIONS.—Any obliga14 tion acquired by the Revolving Fund may be

15 sold by the Secretary of the Treasury at the mar16 ket price.

17 (C) INTEREST ON CERTAIN PROCEEDS.—

18 The interest on, and the proceeds from the sale

19 or redemption of, any obligations held in the Re20 volving Fund shall be credited to and form a

21 part of the Revolving Fund.

22 (2) MONTHLY TRANSFERS.—The amounts trans23 ferred by subsection (b) or required to be credited

24 under paragraph (1)(C) shall be transferred at least

25 monthly from the general fund of the Treasury to the
323

•S 1834 RCS1S

1 Revolving Fund on the basis of estimates made by the

2 Secretary of the Treasury. Proper adjustment shall be

3 made in amounts subsequently transferred to the ex4 tent prior estimates were in excess of, or less than, the

5 amounts required to be transferred.

6 (3) REPORT.—It shall be the duty of the Sec7 retary of the Treasury to hold the Revolving Fund

8 and (after consultation with the Secretary) to report

9 to Congress each year concerning—

10 (A) the financial condition and the results

11 of the operations of the Revolving Fund during

12 the preceding fiscal year; and

13 (B) the expected condition and operations of

14 the Revolving Fund for the 5 fiscal years follow15 ing the preceding fiscal year.

16 (d) EXPENDITURES FROM THE REVOLVING FUND.—

17 Amounts in the Revolving Fund shall be available, as pro18 vided by appropriation Acts, only to carry out the loan as19 sistance program established under section 305.

20 (e) AUTHORITY TO BORROW.—

21 (1) IN GENERAL.—There are authorized to be ap22 propriated to the Revolving Fund, as a repayable ad23 vance, an amount equal to $30,000,000 for each of fis24 cal years 1995 through 1998.

25 (2) REPAYMENT OF ADVANCES.—
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•S 1834 RCS1S

1 (A) IN GENERAL.—If the Secretary of the

2 Treasury determines that there are sufficient

3 funds available in the Revolving Fund to repay

4 a repayable advance, the Secretary of the Treas5 ury shall transfer from the Revolving Fund to

6 the general fund of the Treasury an amount

7 equal to the amount of a repayment plus interest

8 (as determined by the Secretary of the Treasury

9 under subparagraph (B)).

10 (B) RATE OF INTEREST.—The amount of

11 interest on an advance made under this sub12 section shall be at a rate determined by the Sec13 retary of the Treasury (as of the close of the cal14 endar month preceding the month in which the

15 advance is made).

16 SEC. 308. AUTHORIZATIONS OF APPROPRIATIONS.

17 (a) VOLUNTARY CLEANUP PROGRAM.—There are au18 thorized to be appropriated to the Environmental Protec19 tion Agency, to carry out sections 304 and 305, an amount

20 not to exceed $15,000,000 for fiscal year 1995, and

21 $7,500,000 for each of fiscal years 1996 through 1998.

22 (b) SITE CHARACTERIZATION AND CLEANUP PRO23 GRAMS.—

24 (1) IN GENERAL.—There are authorized to be ap25 propriated to the Department of Housing and Urban
325

•S 1834 RCS1S

1 Development from the Revolving Fund, to provide site

2 characterization credit assistance and cleanup credit

3 assistance under section 305, an amount not to exceed

4 $30,000,000 for each of fiscal years 1995 through

5 1998.

6 (2) ALLOCATION.—At the beginning of each fis7 cal year, the Secretary shall allocate—

8 (A) 50 percent of the amounts appropriated

9 under paragraph (1) for site characterization;

10 and

11 (B) 50 percent of the amounts appropriated

12 under paragraph (1) for cleanup.

13 (c) AVAILABILITY OF FUNDS.—The amounts appro14 priated pursuant to this section shall remain available

15 until expended.

16 SEC. 309. REPORTS.

17 (a) IN GENERAL.—Not later than 1 year after the date

18 of enactment of this Act, and not later than January 31

19 of each of the 3 calendar years thereafter, the Secretary and

20 the Administrator shall prepare and submit a report de21 scribing the achievements of each grant or loan program

22 established under this title to—

23 (1) the Committee on Environment and Public

24 Works, and the Committee on Banking, Housing, and

25 Urban Affairs, of the Senate; and
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•S 1834 RCS1S

1 (2) the Committee on Energy and Commerce,

2 and the Committee on Banking, Finance and Urban

3 Affairs, of the House of Representatives.

4 (b) CONTENTS OF REPORT.—Each report shall, with

5 respect to the programs established under this title, include

6 a description of—

7 (1) the number of grant and credit assistance

8 applications received by the Secretary during the pre9 ceding calendar year;

10 (2) the number of grant and credit assistance

11 applications approved by the Secretary during the

12 preceding calendar year;

13 (3) with respect to each voluntary cleanup pro14 gram of a State that was the subject of a grant under

15 section 304—

16 (A) the purposes to which the grant made to

17 the State was applied; and

18 (B) the achievements of the program;

19 (4)(A) the affected sites identified by local appli20 cants; and

21 (B) the status of the sites referred to in subpara22 graph (A) regarding subsequent cleanup and eco23 nomic redevelopment;

24 (5)(A) the affected sites at which a site charac25 terization or cleanup was initiated pursuant to the
327

•S 1834 RCS1S

1 economic redevelopment credit assistance program

2 under section 305; and

3 (B) the status of the sites referred to in subpara4 graph (A) regarding ongoing or completed site char5 acterizations, cleanup actions, and economic redevel6 opment activities;

7 (6) the grant and credit assistance applications

8 disapproved during the preceding year, and the rea9 sons for disapproval;

10 (7) the amount of grants and credit assistance

11 made during the preceding year, and an estimate of

12 the total costs incurred by parties receiving a loan as13 sisted under the economic redevelopment credit assist14 ance program under section 305;

15 (8) the number of applicants for grants and

16 credit assistance that may be in need of financial as17 sistance in establishing voluntary cleanup programs,

18 performing site characterizations, and conducting

19 cleanups to achieve economic redevelopment under

20 this title; and

21 (9) the allocation of assistance under sections

22 304 and 305 among the States and among different

23 types of applicants for assistance under this title.
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1 SEC. 310. FUNDING.

2 (a) ADMINISTRATIVE COST LIMITATION.—Not more

3 than 15 percent of the amount of a grant made or loan

4 assisted pursuant to this title may be used for administra5 tive costs. No grant or credit assistance made pursuant to

6 this title may be used to pay for fines or penalties owed

7 to a State or the Federal Government.

8 (b) OTHER LIMITATIONS.—Funds made available to a

9 State pursuant to the grant program established under sec10 tion 304 shall be used only for establishing or administering

11 a voluntary cleanup program. Funds otherwise made avail12 able under this title may not be used to relieve a State of

13 the commitment or responsibilities of the State under State

14 law to assist or carry out cleanup actions at affected sites.

15 SEC. 311. STATUTORY CONSTRUCTION.

16 Nothing in this title is intended to affect the liability

17 or response authorities for environmental contamination of

18 any other law (including any regulation), including—

19 (1) the Comprehensive Environmental Response,

20 Compensation, and Liability Act of 1980 (42 U.S.C.

21 9601 et seq.);

22 (2) the Solid Waste Disposal Act (42 U.S.C.

23 6901 et seq.);

24 (3) the Federal Water Pollution Control Act (33

25 U.S.C. 1251 et seq.);
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•S 1834 RCS1S

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

2 2601 et seq.); and

3 (5) title XIV of the Public Health Service Act

4 (commonly known as the ‘‘Safe Drinking Water Act’’)

5 (42 U.S.C. 300f et seq.).

6 TITLE IV—LIABILITY AND

7 ALLOCATION

8 SEC. 401. INFORMATION GATHERING AND ACCESS.

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

10 U.S.C. 9604(e)(2)) is amended—

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

12 and inserting ‘‘response action’’; and

13 (2) by inserting after subparagraph (C) the fol14 lowing:

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

16 in, responsible for, controlling, or having the

17 ability to control activities or operations at a

18 vessel or facility giving rise to liability under

19 this Act.

20 ‘‘(E) Information relating to the potential

21 liability or responsibility of any person to per22 form or pay for a response action.

23 ‘‘(F) For a person conducting a response

24 action, an accounting of direct and indirect costs
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•S 1834 RCS1S

1 the person has incurred in conducting such re2 sponse action.’’.

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

4 9604(e)) is amended—

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

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

7 respectively; and

8 (2) by inserting after paragraph (2) the follow9 ing:

10 ‘‘(3) CERTIFICATION.—For a request made pur11 suant to this subsection, the President may require a

12 respondent to certify that—

13 ‘‘(A) the response is true, accurate, and

14 complete to the best of the respondent’s knowl15 edge;

16 ‘‘(B) the response is based on a diligent

17 good faith search of records in the possession or

18 control of the person to whom the request was di19 rected;

20 ‘‘(C) the response is based on a reasonable

21 inquiry of the current and former officers, direc22 tors, employees, and agents of the person to

23 whom the request was directed;
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•S 1834 RCS1S

1 ‘‘(D) the response accurately and completely

2 reflects information obtained in the course of

3 conducting such search and inquiry;

4 ‘‘(E) the respondent understands that there

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

8 request or the response thereto becomes known or

9 available to the respondent; and

10 ‘‘(F) the respondent understands that there

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

13 imprisonment.’’.

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

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

17 new paragraph:

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

19 would assist in the collection of information author20 ized under paragraph (1), the President may by sub21 poena require the attendance and testimony of wit22 nesses and the production of reports, papers, docu23 ments, answers to questions, and other information

24 listed in paragraph (2) that the President considers

25 necessary. Such witnesses shall be paid the same fees
332

•S 1834 RCS1S

1 and mileage that are paid to witnesses in the courts

2 of the United States under chapter 119 of title 28,

3 United States Code. In the event of contumacy or fail4 ure or refusal of any person to obey any such sub5 poena, any district court of the United States in

6 which venue is proper shall have jurisdiction to order

7 any such person to comply with such subpoena. Any

8 failure to obey such an order of the court is punish9 able by the court as a contempt thereof.’’.

10 (d) CONFIDENTIALITY OF INFORMATION.—Paragraph

11 (8) of section 104(e) (as redesignated by subsection (b)) is

12 amended by striking subparagraph (A) and inserting the

13 following:

14 ‘‘(A) AVAILABILITY OF INFORMATION TO

15 PUBLIC.—Any records, reports, documents, or in16 formation obtained from any person under this

17 section (including records, reports, documents, or

18 information obtained by representatives of the

19 President and records, reports, documents, or in20 formation obtained pursuant to a contract,

21 grant, or other agreement to perform work pur22 suant to this section) shall be made available to

23 the public, except as follows:

24 ‘‘(i) INFORMATION NOT DISCLOSED BY

25 FEDERAL OFFICERS OR EMPLOYEES.—Upon
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•S 1834 RCS1S

1 a showing satisfactory to the President (or

2 the State, as the case may be) by any per3 son that such a record, report, document, or

4 information, or any particular part thereof

5 (other than health or safety effects data and

6 data regarding the release involved), to

7 which the President (or the State, as the

8 case may be) or any officer, employee, or

9 representative has access under this section,

10 if made public, would divulge information

11 entitled to protection under section 1905 of

12 title 18, United States Code, such informa13 tion or particular portion thereof shall be

14 considered confidential in accordance with

15 the purposes of that section. Notwithstand16 ing the preceding sentence, such record, re17 port, document, or information may be dis18 closed to other officers, employees, or author19 ized representatives of the United States

20 concerned with carrying out this Act, or

21 when relevant in any proceeding under this

22 Act, or, if such records, reports, documents,

23 or information are obtained or submitted to

24 the United States (or the State, as the case

25 may be) pursuant to a contract, grant, or
334

•S 1834 RCS1S

1 other agreement to perform work pursuant

2 to this section, to persons from whom the

3 President seeks to recover costs pursuant to

4 this Act.

5 ‘‘(ii) INFORMATION NOT DISCLOSED

6 UNDER FREEDOM OF INFORMATION ACT.—

7 This section shall not be construed to re8 quire that information that is exempt, by

9 reason of any of paragraphs (1) through (8)

10 of subsection (b) of section 552 of title 5,

11 United States Code, from disclosure pursu12 ant to such section, be available to the pub13 lic, nor shall the disclosure of any such in14 formation pursuant to this section authorize

15 disclosure to other parties or be deemed to

16 waive any confidentiality privilege avail17 able to the President under any Federal or

18 State law.’’.

19 (e) CONFIDENTIALITY REQUIREMENTS FOR CONTRAC20 TORS.—Such paragraph (8) of section 104(e) is further

21 amended by adding at the end the following new subpara22 graph:

23 ‘‘(G) PROHIBITION ON DISCLOSURE WITH24 OUT PRESIDENTIAL PERMISSION.—
335

•S 1834 RCS1S

1 ‘‘(i) IN GENERAL.—No person de2 scribed in clause (ii) may disclose such

3 record, report, document, or other informa4 tion described in subparagraph (A) without

5 the permission of the President.

6 ‘‘(ii) COVERED PERSONS.—A person

7 referred to in clause (i) is any person—

8 ‘‘(I) who is not an employee of the

9 Federal Government; and

10 ‘‘(II) who, by virtue of the per11 son’s duties under a contract or cooper12 ative agreement with the United States

13 under this section to perform work for

14 the Federal Government or implement

15 the requirements of this Act, has re16 ceived information obtained under this

17 section (or any record, report, or docu18 ment containing such information)

19 that, if requested from the Federal Gov20 ernment pursuant to section 552 of

21 title 5, United States Code, would be

22 exempt from disclosure by reason of

23 any of paragraphs (1) through (8) of

24 subsection (b) of such section.
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•S 1834 RCS1S

1 ‘‘(iii) CONSTRUCTION.—Nothing in

2 this subparagraph shall be construed to au3 thorize any person, including the allocator

4 described in section 129, to withhold any

5 records, reports, documents, or information

6 from Congress, or any duly authorized com7 mittee thereof, or limit in any manner the

8 right of Congress, or any duly authorized

9 committee thereof, to obtain such records,

10 reports, documents, or information.’’.

11 (f) CONFORMING AMENDMENTS.—Section 104(e) (42

12 U.S.C. 9604(e)) is amended—

13 (1) in paragraph (1)—

14 (A) in the first sentence—

15 (i) by striking ‘‘(2), (3), or (4)’’ and

16 inserting ‘‘(2), (4), or (5)’’; and

17 (ii) by striking ‘‘(3) or (4)’’ each place

18 it appears and inserting ‘‘(4) or (5)’’; and

19 (B) in the third sentence, by striking ‘‘(3)

20 and (4)’’ and inserting ‘‘(4) and (5)’’;

21 (2) in subparagraph (A) of paragraph (5) (as re22 designated by subsection (b)(1)), by striking ‘‘(3)’’

23 and inserting ‘‘(4)’’; and
337

•S 1834 RCS1S

1 (3) in subparagraph (A) of paragraph (6) (as re2 designated by subsection (b)(1)), by striking ‘‘(2), (3),

3 or (4)’’ and inserting ‘‘(2), (4), or (5)’’.

4 SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.

5 (a) ADDITIONAL AUTHORITY TO ISSUE ORDERS.—

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

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

8 orders and issue additional orders relating to the facility,

9 as appropriate, without a subsequent finding of such an

10 imminent and substantial endangerment, to complete all re11 sponse actions necessary to respond to such an actual or

12 threatened release or to require additional response actions

13 that are necessary or appropriate to respond to the actual

14 or threatened release that was the subject of the original

15 order.’’.

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

17 9606(b)(1)) is amended—

18 (1) by striking ‘‘(b)(1) Any’’ and inserting the

19 following:

20 ‘‘(b) VIOLATIONS.—

21 ‘‘(1) FINE.—

22 ‘‘(A) IN GENERAL.—Any’’;

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

24 (3) by inserting before the period at the end the

25 following: ‘‘, or be required to comply with such order,
338

•S 1834 RCS1S

1 or both, even if another person has complied, or is

2 complying, with the terms of the same order or an3 other order pertaining to the same facility and release

4 or threatened release’’; and

5 (4) by adding at the end the following:

6 ‘‘(B) SUFFICIENT CAUSE.—For purposes of

7 this subsection, the term ‘sufficient cause’

8 means—

9 ‘‘(i) an objectively reasonable belief by

10 the person to whom the order is issued that

11 the person is not liable for any response

12 costs under section 107; or

13 ‘‘(ii) a determination, by a Federal

14 court that has jurisdiction over the order in

15 an enforcement action, that the action to be

16 performed pursuant to the order is incon17 sistent with the national contingency plan.

18 ‘‘(C) DETERMINATION OF SUFFICIENT

19 CAUSE.—The existence or results of an allocation

20 process pursuant to section 129 shall not affect

21 or constitute a basis for a determination of ‘suf22 ficient cause’ under this paragraph or under sec23 tion 107(c)(3).’’.

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

25 (42 U.S.C. 9606(b)) is further amended in the first sentence
339

•S 1834 RCS1S

1 of paragraph (2)(A) by striking ‘‘completion of’’ and insert2 ing ‘‘the President determines that such person has com3 pleted’’.

4 SEC. 403. LIMITATIONS ON LIABILITY FOR RESPONSE

5 COSTS.

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

7 U.S.C. 9607) is amended—

8 (1) in subsection (a)(4), by striking ‘‘by such

9 person,’’ and all that follows through ‘‘shall be liable

10 for—’’ and inserting the following: ‘‘by such person;

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

12 causes the incurring of response costs, of a hazardous sub13 stance, shall be liable for—’’; and

14 (2) by adding at the end the following new sub15 section:

16 ‘‘(n) LIMITATIONS ON LIABILITY.—

17 ‘‘(1) DE MICROMIS AND OTHER LIMITATIONS.—

18 Notwithstanding paragraphs (1) through (4) of sub19 section (a), a person who does not impede the per20 formance of response actions or natural resource res21 toration shall not be liable under this Act—

22 ‘‘(A)(i) to the extent liability is based solely

23 on paragraph (3) or (4) of subsection (a), and

24 the person arranged for disposal, treatment, or

25 transport for disposal or treatment, or accepted
340

•S 1834 RCS1S

1 for transport for disposal or treatment, of only

2 municipal solid waste owned or possessed by

3 such person, and the person is—

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

5 residential property;

6 ‘‘(II) a small business; or

7 ‘‘(III) a small nonprofit organization;

8 and

9 ‘‘(ii) this subparagraph shall have no effect

10 on the liability of other parties;

11 ‘‘(B) to the extent liability is based solely on

12 paragraph (3) or (4) of subsection (a), and the

13 person can demonstrate that it arranged for dis14 posal or treatment, or transport for disposal or

15 treatment, or accepted for transport for disposal

16 or treatment, less than 55 gallons of liquid mate17 rials containing hazardous substances, or less

18 than 100 pounds of solid materials containing

19 hazardous substances, or such greater or lesser

20 amount as the Administrator may determine by

21 regulation, except in a case in which—

22 ‘‘(i) the Administrator has determined

23 that such materials contributed or could

24 contribute significantly to the costs of re25 sponse at the facility; or
341

•S 1834 RCS1S

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

2 fully and completely to information requests

3 or administrative subpoenas by the United

4 States;

5 ‘‘(C) to the extent liability is based solely on

6 subsection (a)(1) for a release or threat of release

7 from a facility, and the person is a bona fide

8 prospective purchaser of the facility;

9 ‘‘(D) to the extent liability is based solely

10 on the person’s status as an owner under sub11 section (a)(1) for a release or threat of release

12 from a facility, and the person acquired the fa13 cility by inheritance or bequest, if the person—

14 ‘‘(i) acquired the real property on

15 which the facility concerned is located after

16 disposal or placement of the hazardous sub17 stance took place;

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

19 release or threat of release; and

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

21 the hazardous substance concerned, includ22 ing precautions against foreseeable acts of

23 third parties, taking into consideration the

24 characteristics of such hazardous substance,
342

•S 1834 RCS1S

1 in light of all relevant facts and cir2 cumstances;

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

4 or State governmental entity or municipality is

5 based solely on its—

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

7 other right-of-way or public transportation

8 route over which hazardous substances are

9 transported; or

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

11 conduct business;

12 ‘‘(F) to the extent that liability under sec13 tion 120(a)(1) based on the actions of the United

14 States encompasses actions of a department,

15 agency, or instrumentality taken in response to

16 a natural disaster pursuant to section 5 of the

17 Act of August 18, 1941 (55 Stat. 650, chapter

18 377; 33 U.S.C. 701n), or the Robert T. Stafford

19 Disaster Relief and Emergency Assistance Act

20 (42 U.S.C. 5121 et seq.); or

21 ‘‘(G) to the extent liability is based solely on

22 the status of the person as a railroad owner or

23 operator of a spur track, including a spur track

24 over land subject to an easement, to a facility
343

•S 1834 RCS1S

1 owned or operated by an unaffiliated person,

2 and if—

3 ‘‘(i) the spur track provides access to a

4 main line or branch line track owned by the

5 railroad;

6 ‘‘(ii) the spur track is 10 miles in

7 length or less; and

8 ‘‘(iii) the person who is the railroad

9 owner or operator has not caused or con10 tributed to a release or threat of release at

11 the spur track.

12 ‘‘(2) CERTAIN MUNICIPAL SOLID WASTE MANAGE13 MENT LIMITATIONS.—Notwithstanding paragraphs

14 (1) through (4) of subsection (a), a person shall not

15 be liable for more than 10 percent of total response

16 costs at a facility, in aggregate, to the extent the per17 son’s liability is based solely on paragraph (3) or (4)

18 of subsection (a), and the arrangement for disposal,

19 treatment, or transport for disposal or treatment, or

20 the acceptance for transport for disposal or treatment,

21 involved only municipal solid waste or sewage sludge.

22 In any case in which more than 1 person at a facility

23 comes within the coverage of this paragraph, the 10

24 percent limitation on liability shall apply to the ag25 gregate liability of all such persons. Such limitation
344

•S 1834 RCS1S

1 on liability shall apply only if either the acts or

2 omissions giving rise to liability occurred before the

3 date occurring 3 years after the date of enactment of

4 this paragraph, or the person asserting the limitation

5 institutes or participates in a qualified household

6 hazardous waste collection program, or, in the case of

7 a person other than a municipality, participates, if

8 eligible, in any qualified household hazardous waste

9 collection program in the vicinity of the facility.’’.

10 (b) PROSPECTIVE PURCHASER AND WINDFALL

11 LIEN.—Section 107 (as amended by subsection (a)(2)) is

12 further amended by inserting after subsection (n) the follow13 ing new subsection:

14 ‘‘(o) PROSPECTIVE PURCHASER AND WINDFALL

15 LIEN.—

16 ‘‘(1) LIEN.—In any case in which there are un17 recovered response costs at a facility for which an

18 owner of the facility is not liable by reason of sub19 section (n)(1)(C), and each of the conditions described

20 in paragraph (2) is met, the United States shall have

21 a lien upon such facility, or may obtain from the ap22 propriate responsible party or parties, a lien on other

23 property or other assurances of payment satisfactory

24 to the Administrator, for such unrecovered costs. Such

25 lien—
345

•S 1834 RCS1S

1 ‘‘(A) shall not exceed the increase in fair

2 market value of the property attributable to the

3 response action at the time of a subsequent sale

4 or other disposition of the property;

5 ‘‘(B) shall arise at the time costs are first

6 incurred by the United States with respect to a

7 response action at the facility;

8 ‘‘(C) shall be subject to the requirements for

9 notice and validity established in paragraph (3)

10 of subsection (l); and

11 ‘‘(D) shall continue until the earlier of sat12 isfaction of the lien or recovery of all response

13 costs incurred at the facility.

14 ‘‘(2) CONDITIONS.—The conditions referred to in

15 paragraph (1) are the following:

16 ‘‘(A) RESPONSE ACTION.—A response action

17 for which there are unrecovered costs is carried

18 out at the facility.

19 ‘‘(B) FAIR MARKET VALUE.—Such response

20 action increases the fair market value of the fa21 cility above the fair market value of the facility

22 that existed 180 days before the response action

23 was taken.

24 ‘‘(C) SALE.—A sale or other disposition of

25 all or a portion of the facility has occurred.’’.
346

•S 1834 RCS1S

1 (c) FEDERAL ENTITIES AND FACILITIES.—Section 120

2 (42 U.S.C. 9620) is amended—

3 (1) by striking the section heading and inserting

4 the following:

5 ‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’;

6 and

7 (2) in subsection (a)—

8 (A) by striking paragraph (1) and inserting

9 the following:

10 ‘‘(1) IN GENERAL.—

11 ‘‘(A) REQUIREMENTS.—Each department,

12 agency, and instrumentality of the executive, leg13 islative, and judicial branches of the Federal

14 Government shall be subject to, and comply with,

15 all Federal, State, interstate, and local require16 ments, both substantive and procedural (includ17 ing but not limited to any requirements for per18 mits, reporting, or any provisions for injunctive

19 relief and such sanctions as may be imposed by

20 a court to enforce such relief), regarding response

21 actions related to, or management of, hazardous

22 substances or pollutants or contaminants in the

23 same manner, and to the same extent, as any

24 nongovernmental person is subject to such re25 quirements, including liability under sections
347

•S 1834 RCS1S

1 106 and 107 and the payment of reasonable serv2 ice charges.

3 ‘‘(B) ORDERS, PENALTIES, AND FINES.—

4 The Federal, State, interstate, and local sub5 stantive and procedural requirements referred to

6 in subparagraph (A) include all administrative

7 orders and all civil and administrative penalties

8 and fines, regardless of whether such penalties

9 and fines are punitive or coercive in nature or

10 are imposed for isolated, intermittent, or con11 tinuing violations. The United States hereby ex12 pressly waives any immunity otherwise applica13 ble to the United States with respect to any such

14 substantive or procedural requirement (including

15 but not limited to any injunctive relief, adminis16 trative order, or civil or administrative penalty

17 or fine referred to in the preceding sentence, or

18 reasonable service charge).

19 ‘‘(C) REASONABLE SERVICE CHARGES.—The

20 reasonable service charges referred to in this

21 paragraph include fees or charges assessed in

22 connection with the processing and issuance of

23 permits, renewal of permits, amendments to per24 mits, review of plans, studies, and other docu25 ments, and inspection and monitoring of facili-
348

•S 1834 RCS1S

1 ties, as well as any other nondiscriminatory

2 charges that are assessed in connection with a

3 State, interstate, or local response program.

4 ‘‘(D) PROHIBITION ON IMMUNITY OR EX5 EMPTION FROM PROCESS OR SANCTION.—Neither

6 the United States, nor any agent, employee, or

7 officer thereof, shall be immune or exempt from

8 any process or sanction of any State or Federal

9 court with respect to the enforcement of any in10 junctive relief under this Act.

11 ‘‘(E) PROHIBITION ON PERSONAL CIVIL LI12 ABILITY.—No agent, employee, or officer of the

13 United States shall be personally liable for any

14 civil penalty under any Federal or State re15 sponse law with respect to any act or omission

16 within the scope of their official duties. An

17 agent, employee, or officer of the United States

18 may be subject to any criminal sanction (includ19 ing any fine or imprisonment) under any Fed20 eral or State response law, but no department,

21 agency, or instrumentality of the executive, legis22 lative, or judicial branch of the Federal Govern23 ment shall be subject to any such sanction.

24 ‘‘(F) LIMITATION ON WAIVER OF SOVEREIGN

25 IMMUNITY.—The waiver of sovereign immunity
349

•S 1834 RCS1S

1 provided in this paragraph shall not apply to

2 the extent a State law would apply any standard

3 or requirement to such Federal department,

4 agency, or instrumentality in a manner that is

5 more stringent than such standard or require6 ment would be applied to any other person.

7 ‘‘(G) CONSTRUCTION.—Nothing in this sec8 tion shall be construed to affect the liability of

9 any person or entity other than a department,

10 agency, or instrumentality of the Federal Gov11 ernment under sections 106 and 107.

12 ‘‘(H) POWERS OF ADMINISTRATOR.—The

13 Administrator may issue an order under section

14 106 to any department, agency, or instrumental15 ity of the executive, legislative, or judicial branch

16 of the Federal Government. The Administrator

17 shall initiate an administrative enforcement ac18 tion against such a department, agency, or in19 strumentality in the same manner and under the

20 same circumstances as action would be initiated

21 against any other person.

22 ‘‘(I) CONTRIBUTION.—Each such depart23 ment, agency, and instrumentality shall have the

24 right to contribution protection set forth in sec25 tion 113, when such department, agency, or in-
350

•S 1834 RCS1S

1 strumentality resolves its liability under this

2 Act.’’;

3 (B) by striking paragraph (4); and

4 (C) by inserting ‘‘(except for section 119)’’

5 after ‘‘responsibility’’ in paragraph (3).

6 (d) COMMON CARRIERS.—Section 107(b)(3) (42

7 U.S.C. 9607(b)(3)) is amended by striking ‘‘a published tar8 iff and acceptance’’ and inserting ‘‘a contract’’.

9 (e) CONFORMING AMENDMENTS.—

10 (1) Section 107 (42 U.S.C. 9607) is amended—

11 (A) in the matter following subparagraph

12 (D) of the matter following paragraph (4) of sub13 section (a), by inserting ‘‘of the matter following

14 paragraph (4)’’ after ‘‘subparagraphs (A)

15 through (D)’’; and

16 (B) in subsection (f)(1), by inserting after

17 ‘‘subparagraph (C)’’ each place it appears the

18 following: ‘‘of the matter following paragraph

19 (4)’’.

20 (2) Section 122(j)(2) (42 U.S.C. 9622(j)(2)) is

21 amended by striking ‘‘section 107(a)(4)(C)’’ and in22 serting ‘‘subparagraph (C) of the matter following

23 paragraph (4) of section 107(a)’’.
351

•S 1834 RCS1S

1 SEC. 404. LIABILITY.

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

3 amended by section 403) is further amended—

4 (1) in subsection (a)—

5 (A) in paragraph (1), by striking ‘‘and’’

6 and inserting ‘‘or’’;

7 (B) in paragraph (3), by striking ‘‘such

8 person,’’ and inserting ‘‘such person, or’’;

9 (C) in subparagraph (A) of the matter fol10 lowing paragraph (4), by inserting ‘‘, including

11 the costs of overseeing response actions conducted

12 by potentially responsible parties,’’ before ‘‘in13 curred by the United States’’; and

14 (D) in subparagraph (B) of the matter fol15 lowing paragraph (4)—

16 (i) by striking ‘‘other’’ the second place

17 it appears; and

18 (ii) by inserting ‘‘, other than the

19 United States, a State, or an Indian tribe,’’

20 before ‘‘consistent with the national contin21 gency plan’’; and

22 (2) in subsection (n), by adding at the end the

23 following new paragraph:

24 ‘‘(3) RESPONSE ACTION OVERSIGHT COSTS.—The

25 Administrator shall calculate the Environmental Pro26 tection Agency response action oversight costs (which
352

•S 1834 RCS1S

1 shall consist of the direct costs of oversight and the in2 direct costs associated with the direct costs) for which

3 potentially responsible parties are liable under this

4 section (pursuant to subparagraph (A) of the matter

5 following paragraph (4) of subsection (a)) on a na6 tional basis as a percentage of total response costs in7 curred by potentially responsible parties (in this

8 paragraph referred to as the ‘national oversight rate’).

9 The calculation shall be based on data comparing

10 such oversight costs of the Environmental Protection

11 Agency to estimated or actual response costs incurred

12 by potentially responsible parties. The Administrator

13 shall periodically review and update the national

14 oversight rate. If the Administrator calculates that the

15 rate would exceed 10 percent of total response costs

16 incurred by potentially responsible parties the rate

17 shall be deemed to be 10 percent. The national over18 sight rate shall be applied to all settlements under sec19 tion 129.’’.

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

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

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

23 any response costs incurred by the United States as

24 a result of such failure to take proper action,’’ after

25 ‘‘person’’ the second place it appears; and
353

•S 1834 RCS1S

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

2 follows through the end of the sentence and inserting

3 ‘‘of up to 3 times the amount of such response costs.’’.

4 (c) TIMING.—Section 119 (42 U.S.C. 9619) is amend5 ed—

6 (1) in subsection (e)(2)(C), by striking ‘‘1996,’’

7 and inserting ‘‘2000,’’; and

8 (2) in subsection (g)(5), by striking ‘‘1995.’’ and

9 inserting ‘‘1999.’’.

10 (d) REMINING LIMITATION.—Section 107(n) (42

11 U.S.C. 9607(n)) (as added by section 403(a)(2) and amend12 ed by subsection (a)(2)) is further amended by adding at

13 the end the following new paragraph:

14 ‘‘(4) REMINING LIMITATION.—

15 ‘‘(A) IN GENERAL.—

16 ‘‘(i) LIMITATION.—Notwithstanding

17 paragraphs (1) through (4) of subsection (a)

18 and subject to clause (ii) and subpara19 graphs (B) and (C), a person who does not

20 impede the performance of response actions

21 or natural resource restoration and who is

22 a reminer shall not be liable, to the extent

23 liability is based solely on a remining oper24 ation by the person at a facility, to any

25 person for response costs, damages, or ex-
354

•S 1834 RCS1S

1 penses, or otherwise, under this Act as a re2 sult of the remining operation.

3 ‘‘(ii) EXCEPTION.—Clause (i) shall not

4 apply in the case of a release or threatened

5 release of a hazardous substance or pollut6 ant or contaminant that is caused by con7 duct of the reminer that is negligent or

8 grossly negligent, or that constitutes inten9 tional misconduct.

10 ‘‘(B) CONDITIONS ON LIMITATION.—Except

11 as provided in subparagraph (D), the limitation

12 on liability provided by subparagraph (A) shall

13 be applicable only—

14 ‘‘(i) if the President has determined

15 that the remining operation carried out by

16 the person asserting the limitation has the

17 potential to—

18 ‘‘(I) result in a significant recov19 ery of a metal or mineral; and

20 ‘‘(II) facilitate a removal or a re21 medial action at the facility, by reduc22 ing or eliminating a source of a release

23 or threatened release of a hazardous

24 substance or pollutant or contaminant
355

•S 1834 RCS1S

1 or by reducing the cost of the antici2 pated removal or remedial action;

3 ‘‘(ii)(I) if the President has entered

4 into a contract or agreement with the per5 son, which contract or agreement may be

6 subject to such terms and conditions as the

7 President considers appropriate (including

8 reimbursement of oversight costs specifically

9 attributable to the contract or agreement for

10 a remining operation) to ensure that the

11 remining operation will facilitate a removal

12 or a remedial action at the facility to the

13 maximum extent practicable and will not

14 cause any additional significant adverse ef15 fect on human health or the environment;

16 and

17 ‘‘(II) if not later than the date that is

18 30 days after the President enters into the

19 contract or agreement with the reminer—

20 ‘‘(aa) the contract or agreement is

21 made available to the public; and

22 ‘‘(bb) a notice of the availability

23 is published in the Federal Register;

24 ‘‘(iii) if the remining operation is car25 ried out in a manner consistent with any
356

•S 1834 RCS1S

1 such contract or agreement and with such

2 regulations as the President may promul3 gate to ensure that the remining operation

4 is carried out in a manner to ensure protec5 tion of human health and the environment;

6 and

7 ‘‘(iv) to a release or threatened release

8 of a hazardous substance or pollutant or

9 contaminant that is attributable to extrac10 tion, beneficiation, or a processing oper11 ation, or the management of a material or

12 solid waste from the extraction,

13 beneficiation, or processing operation, prior

14 to February 3, 1994.

15 ‘‘(C) RESTRICTIONS ON LIMITATION.—

16 ‘‘(i) PERSONS OTHERWISE LIABLE.—

17 The limitation on liability provided by sub18 paragraph (A) shall not apply to, and may

19 not be asserted by, a person who—

20 ‘‘(I) would otherwise be liable

21 under this section with respect to a re22 lease or threatened release of a hazard23 ous substance or pollutant or contami24 nant at the facility (including if the

25 person were not a reminer); or
357

•S 1834 RCS1S

1 ‘‘(II) is directly or indirectly af2 filiated with such an otherwise liable

3 person other than in connection with a

4 contractual relationship relating to a

5 remining operation.

6 ‘‘(ii) ASSERTION OF DEFENSES.—The

7 conduct of a remining operation subject to

8 the limitation on liability provided by sub9 paragraph (A) shall not in any manner be

10 a basis for an otherwise liable person to as11 sert a defense pursuant to subsection (b).

12 ‘‘(iii) OTHER LAWS.—This paragraph

13 shall not be construed to affect, in any man14 ner, the obligation of a person to comply

15 with any Federal, State, or local statute,

16 regulation, ordinance, or other requirement

17 that may be applicable to a remining oper18 ation, nor to limit or preempt any Federal,

19 State, or local regulatory authority with re20 spect to a remining operation.

21 ‘‘(iv) HYDROCARBON MINING OPER22 ATIONS.—This paragraph shall not be con23 strued to affect, in any manner, the liabil24 ity of a person who carries out a remining
358

•S 1834 RCS1S

1 operation with respect to coal or another

2 hydrocarbon.

3 ‘‘(v) PENDING CLAIMS.—This para4 graph shall not be construed to apply to, or

5 be asserted with respect to, any claim pend6 ing as of the date of enactment of this para7 graph in any administrative or judicial ac8 tion or proceeding for the recovery of re9 sponse costs or damages, or for the perform10 ance of a response action or restoration.

11 ‘‘(vi) INDEMNIFICATION.—With respect

12 to a contract or agreement described in sub13 paragraph (B)(ii), the President shall not

14 have authority to indemnify or hold harm15 less the reminer or other person carrying

16 out the remining operation.

17 ‘‘(D) LIABILITY FOR REMINING OPERATIONS

18 PRIOR TO QUALIFYING FOR LIMITATION.—The li19 ability of a person who locates or acquires an in20 terest in a mining claim on Federal land where

21 the extraction, beneficiation, or processing of any

22 ore or mineral, or the management of a material

23 or solid waste from the extraction, beneficiation,

24 or processing, occurred prior to February 3,

25 1994, shall be subject to the limitation on liabil-
359

•S 1834 RCS1S

1 ity provided by subparagraph (A), notwithstand2 ing the absence of a prior determination by the

3 President, or a contract or an agreement, pursu4 ant to subparagraph (B), if the person—

5 ‘‘(i) does not cause or contribute to a

6 release of a hazardous substance or pollut7 ant or contaminant at the facility prior to

8 qualifying for the limitation on liability

9 provided by subparagraph (A); and

10 ‘‘(ii) within 3 years after locating or

11 acquiring the interest in the mining

12 claim—

13 ‘‘(I) qualifies for the limitation on

14 liability provided by subparagraph

15 (A); or

16 ‘‘(II) abandons or otherwise relin17 quishes the interest in the mining

18 claim.

19 ‘‘(E) LIABILITY OF GOVERNMENTAL EM20 PLOYEES OVERSEEING REMINING OPERATIONS.—

21 An employee of the Federal Government, or a de22 partment, agency, or instrumentality of the Fed23 eral Government, or an employee of a State or

24 municipality, who provides oversight or other

25 services relating to a contract or an agreement
360

•S 1834 RCS1S

1 for a remining operation, while acting within

2 the scope of authority of the employee as a gov3 ernmental employee, shall be subject to the limi4 tation on liability provided by subparagraph (A)

5 in the same manner as if the employee were a

6 reminer.

7 ‘‘(F) TIMELY DETERMINATION BY THE

8 PRESIDENT.—After receiving a written request

9 for a contract or agreement described in sub10 paragraph (B)(ii), the President shall make any

11 determinations required by such subparagraph

12 not later than 180 days after the receipt of the

13 request.

14 ‘‘(G) DEFINITIONS.—As used in this para15 graph:

16 ‘‘(i) REMINER.—The term ‘reminer’

17 means a person who owns or operates a fa18 cility—

19 ‘‘(I) at which another unaffiliated

20 person prior to February 3, 1994, en21 gaged in the extraction, beneficiation,

22 or processing of any ore or mineral, or

23 the management of a material or solid

24 waste from the extraction,

25 beneficiation, or processing; and
361

•S 1834 RCS1S

1 ‘‘(II) at which there is an ongoing

2 release or threatened release of a haz3 ardous substance or pollutant or con4 taminant because of the past activity

5 referred to in subclause (I).

6 ‘‘(ii) REMINING OPERATION.—

7 ‘‘(I) IN GENERAL.—Subject to

8 subclause (II), the term ‘remining op9 eration’ means any of the following ac10 tivities when carried out by a reminer:

11 ‘‘(aa) The extraction,

12 beneficiation, or processing of any

13 ore or mineral.

14 ‘‘(bb) The beneficiation, proc15 essing, reclamation, or beneficial

16 use or reuse of any material or

17 solid waste from the extraction,

18 beneficiation, or processing of any

19 ore or mineral at a facility at

20 which the carrying out of extrac21 tion, beneficiation, or processing

22 prior to February 3, 1994, has re23 sulted in an ongoing release or

24 threatened release of a hazardous
362

•S 1834 RCS1S

1 substance or pollutant or contami2 nant.

3 ‘‘(cc) The investigation or

4 evaluation of a facility to deter5 mine whether an activity de6 scribed in item (aa) or (bb) is eco7 nomically feasible, including the

8 sampling of any ore, other mate9 rial, or solid waste, surveying,

10 monitoring of environmental

11 media, or an exploration activity.

12 ‘‘(dd) Any other activity, in13 cluding a construction, mainte14 nance, or waste management ac15 tivity, that is incidental to an ac16 tivity described in item (aa), (bb),

17 or (cc).

18 ‘‘(ee) The acquisition and re19 tention of any ownership, lease20 hold, or other interest in the facil21 ity needed to engage in an activ22 ity described in item (aa), (bb),

23 (cc), or (dd), except that in order

24 for the acquisition or retention of

25 any ownership, leasehold, or other
363

•S 1834 RCS1S

1 such interest to be subject to the

2 limitation on liability provided

3 by subparagraph (A), the reminer

4 shall be a person described in sub5 paragraphs (B), (C), (E), and (F)

6 of section 101(39).

7 ‘‘(II) EXCLUSION.—The term

8 ‘remining operation’ does not include

9 smelting.

10 ‘‘(iii) SOLID WASTE.—The term ‘solid

11 waste’ has the meaning provided in section

12 1004(27) of the Solid Waste Disposal Act

13 (42 U.S.C. 6903(27)).’’.

14 (e) DEFINITION OF CONTRACTUAL RELATIONSHIP.—

15 Section 101(35) (42 U.S.C. 9601(35)) is amended by add16 ing at the end the following new subparagraph:

17 ‘‘(E) PATENTS.—The term ‘contractual re18 lationship’ does not include the initial filing by

19 a claimant of an unpatented mining claim or

20 the issuance of a patent for such a claim.’’.

21 SEC. 405. CIVIL PROCEEDINGS.

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

23 is amended—
364

•S 1834 RCS1S

1 (1) by striking ‘‘upon application by any inter2 ested person’’ and inserting ‘‘by any interested person

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

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

5 inserting ‘‘petition shall be filed’’.

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

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

8 paragraphs (2) and (3) and inserting the following:

9 ‘‘(2) ACTIONS FOR RECOVERY OF COSTS.—

10 ‘‘(A) INITIAL ACTION.—Except as provided

11 in subparagraph (C), an initial action for recov12 ery of costs referred to in section 107 shall be

13 commenced—

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

15 years after completion of all removal action

16 taken with respect to the facility involved,

17 including offsite disposal of any removed

18 materials, except that if physical onsite con19 struction of the remedial action is initiated

20 within 3 years after the completion of all

21 removal action taken with respect to the fa22 cility, costs incurred for removal action

23 may be recovered in a cost recovery action

24 brought under clause (ii); and
365

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1 ‘‘(ii) for a remedial action, within 6

2 years after initiation of physical onsite con3 struction of the remedial action.

4 ‘‘(B) DECLARATORY JUDGMENT AND SUBSE5 QUENT ACTIONS.—In any such action for recov6 ery of costs, the court shall enter a declaratory

7 judgment on liability for response costs or dam8 ages that will be binding in such action or in

9 any subsequent action or actions to recover fur10 ther response costs or damages with respect to the

11 vessel or facility. A subsequent action or actions

12 under section 107 for further response costs at

13 the vessel or facility may be maintained at any

14 time during the response action, but shall be

15 commenced no later than 3 years after the date

16 of completion of all response action with respect

17 to the vessel or facility. Except as otherwise pro18 vided in this paragraph, an action may be com19 menced under section 107 for recovery of such

20 costs at any time after such costs have been in21 curred.

22 ‘‘(C) COMMENCEMENT.—An action by any

23 potentially responsible party against another po24 tentially responsible party for recovery of any re-
366

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1 sponse costs or damages under section 107 shall

2 be commenced within the later of—

3 ‘‘(i) the time limitations set forth in

4 subparagraph (A); or

5 ‘‘(ii) where recovery is sought for such

6 costs or damages paid pursuant to a judg7 ment or settlement, 3 years after—

8 ‘‘(I) the date of such judgment in

9 any action under this Act for recovery

10 of such costs or damages; or

11 ‘‘(II) the date of any administra12 tive order or judicial settlement for re13 covery of the costs or damages paid or

14 incurred pursuant to such a settlement.

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

16 STATES.—Claims by the United States under section

17 106 and claims by the United States or a State under

18 section 107(a) shall not be deemed to be compulsory

19 counterclaims in an action against the United States

20 or a State seeking response costs, contribution, or

21 damages, or with respect to any other claim by any

22 person under this Act.’’.

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

24 9613(j)(1)) is amended by striking ‘‘or ordered by the Presi-
367

•S 1834 RCS1S

1 dent’’ and inserting ‘‘or selected by the President pursuant

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

3 (d) CONFORMING AMENDMENT.—Section 113(g)(1) (42

4 U.S.C. 9613(g)(1)) is amended by striking ‘‘paragraphs (3)

5 and (4)’’ and inserting ‘‘paragraph (4)’’.

6 SEC. 406. LIMITATIONS ON CONTRIBUTION ACTIONS.

7 Section 113(f) (42 U.S.C. 9613(f)) is amended—

8 (1) in paragraph (1)—

9 (A) in the first sentence, by striking ‘‘Any

10 person’’ and inserting ‘‘Except as provided in

11 paragraph (4), any person who is liable or po12 tentially liable under section 107(a)’’;

13 (B) in the first sentence, by striking ‘‘, dur14 ing or following any civil action under section

15 106 or under section 107(a).’’ and inserting ‘‘in

16 a claim asserted under section 107(a).’’;

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

18 section’’ and inserting ‘‘section 107(a), this sec19 tion,’’; and

20 (D) by striking the sentence beginning with

21 ‘‘Nothing in this subsection’’;

22 (2) by striking paragraph (2) and inserting the

23 following:

24 ‘‘(2) SETTLEMENTS.—A person who has resolved

25 its liability to the United States in an administrative
368

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1 or judicially approved settlement under this Act shall

2 not be liable for contribution or any other claims by

3 other persons regarding response actions, response

4 costs, or damages addressed in the settlement. A per5 son who has resolved its liability to a State or an In6 dian tribe in an administrative or judicially ap7 proved settlement under this Act shall not be liable for

8 contribution or any other claims by persons other

9 than the United States regarding response costs or

10 damages addressed in the settlement for which the

11 State or Indian tribe has a claim under this title. A

12 settlement described in this paragraph shall not be

13 construed to discharge any other potentially respon14 sible persons unless its terms so provide, but it re15 duces the potential liability of such other persons by

16 the amount of the settlement. The protection afforded

17 by this subsection shall include protection against

18 claims, under Federal or State law, that may be as19 serted against a settling party for recovery of response

20 costs or damages incurred or paid by another person,

21 if such costs or damages are addressed in the settle22 ment, but shall not include protection against claims

23 based on contractual indemnification or other express

24 contractual agreements to pay such costs or dam25 ages.’’; and
369

•S 1834 RCS1S

1 (3) by adding at the end the following new para2 graph:

3 ‘‘(4) LIMITATIONS ON CONTRIBUTION ACTIONS.—

4 ‘‘(A) CIRCUMSTANCES.—There shall be no

5 right of contribution in any of the following cir6 cumstances:

7 ‘‘(i) WAIVER.—The person asserting

8 the right of contribution has waived the

9 right in a settlement pursuant to this Act.

10 ‘‘(ii) NO LIABILITY.—The person from

11 whom contribution is sought is not liable

12 under this Act.

13 ‘‘(iii) SETTLEMENT.—The person from

14 whom contribution is sought has entered

15 into a settlement with the United States,

16 with respect to matters addressed in that

17 settlement.

18 ‘‘(B) COSTS OF DEFENDING CLAIM.—Any

19 person who commences an action for contribu20 tion shall be liable to the person against whom

21 the claim of contribution is brought for all rea22 sonable costs of defending against the claim, in23 cluding all reasonable attorneys’ and expert wit24 ness fees, if—
370

•S 1834 RCS1S

1 ‘‘(i) the action is barred by subpara2 graph (A); or

3 ‘‘(ii) the action is brought during the

4 moratorium pursuant to section 129.’’.

5 SEC. 407. SCOPE OF RULEMAKING AUTHORITY.

6 Section 115 (42 U.S.C. 9615) is amended to read as

7 follows:

8 ‘‘SEC. 115. PRESIDENTIAL DELEGATION AND ASSIGNMENT

9 OF DUTIES OR POWERS AND PROMULGATION

10 OF REGULATIONS.

11 ‘‘The President (or the Administrator where applica12 ble) is authorized to promulgate such regulations as the

13 President (or the Administrator where applicable) deter14 mines to be necessary to carry out the provisions of this

15 Act, and to delegate and assign any duties or powers im16 posed upon or assigned to the President (or the Adminis17 trator where applicable) by this Act, including the author18 ity to promulgate regulations. The authority granted to the

19 President (or the Administrator where applicable) under

20 this section includes the authority to issue rules to clarify

21 or interpret, in a manner that is reasonable and consistent

22 with this Act, all terms, as necessary to determine the liabil23 ity of a party under section 107.’’.

24 SEC. 408. ENHANCEMENT OF SETTLEMENT AUTHORITIES.

25 Section 122 (42 U.S.C. 9622) is amended—
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•S 1834 RCS1S

1 (1) in subsection (a), by inserting after the first

2 sentence the following new sentence: ‘‘The President

3 may include in an agreement entered into pursuant

4 to this section terms and conditions relating to the

5 method, terms, and time of payment of any amount

6 to be paid by the person referred to in the preceding

7 sentence with respect to a response action.’’;

8 (2) in subsection (b)—

9 (A) by striking paragraph (3); and

10 (B) by redesignating paragraph (4) as

11 paragraph (3);

12 (3) in subsection (e)—

13 (A) by striking paragraph (3); and

14 (B) by redesignating paragraphs (4) and

15 (5) as paragraphs (3) and (4), respectively;

16 (4)(A) by transferring paragraph (6) of sub17 section (e) to the end of the section and redesignating

18 such paragraph as subsection (n);

19 (B) by indenting such subsection (n) and align20 ing the margins of such subsection (n) with the mar21 gins of subsection (m); and

22 (C) by adding after such subsection (n) the fol23 lowing new subsections:

24 ‘‘(o) RETENTION OF FUNDS AND USE OF FINANCIAL

25 INSTRUMENTS.—
372

•S 1834 RCS1S

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

2 settlement agreement under this Act, the potentially

3 responsible parties have paid or will be paying

4 amounts to the President for carrying out any re5 sponse action, the President may retain such amounts

6 in interest bearing accounts, and use such amounts,

7 together with accrued interest, to conduct or enable

8 other persons to conduct such response action.

9 ‘‘(2) USE OF FINANCIAL INSTRUMENTS.—

10 ‘‘(A) IN GENERAL.—If, as part of any set11 tlement agreement under this Act, a potentially

12 responsible party will pay an amount to the

13 President for carrying out any response action,

14 the President may assume ownership of a finan15 cial instrument that runs irrevocably to the ben16 efit of the President and may use the amount

17 made available through the instrument to con18 duct or enable other persons to conduct such re19 sponse action.

20 ‘‘(B) DEFINITION.—As used in this para21 graph, the term ‘financial instrument’ means an

22 instrument—

23 ‘‘(i) that is an annuity contract, a

24 funding agreement, or a similar instru25 ment;
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•S 1834 RCS1S

1 ‘‘(ii) that includes a defined schedule of

2 periodic payments that coincides with the

3 obligations set forth in the settlement agree4 ment; and

5 ‘‘(iii) under which the periodic pay6 ments will be made to the owner of the in7 strument, or be made in such manner as the

8 owner may direct, for response costs at the

9 facility that is the subject of the settlement

10 agreement.

11 ‘‘(p) CHALLENGE TO COST RECOVERY COMPONENT OF

12 SETTLEMENT.—Notwithstanding the limitations on review

13 in section 113(h), and except as provided in subsection (g),

14 a person whose potential claim for response costs or con15 tribution is limited as a result of contribution protection

16 afforded by an administrative settlement under this section

17 or section 129 may challenge the cost recovery component

18 of such settlement. Such a challenge may be made only by

19 filing a complaint against the Administrator, or a State

20 that is exercising authority delegated under section 127,

21 with respect to the facility in a United States district court

22 within 60 days after such settlement becomes final. Venue

23 shall lie in the district in which the principal office of the

24 appropriate Regional Administrator is located. Any such

25 review of an administrative settlement shall be limited to
374

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1 the administrative record, and the settlement shall be

2 upheld unless the objecting party demonstrates on that

3 record that the decision of the President or the State to enter

4 into the administrative settlement was arbitrary, capri5 cious, or otherwise not in accordance with law. Nothing in

6 this subsection shall be construed to allow a challenge to

7 a selection of a response action that would otherwise be

8 barred by section 113(h).

9 ‘‘(q) UNSUCCESSFUL CHALLENGERS LIABLE FOR AT10 TORNEY’S FEES.—Any party who challenges any settlement

11 entered into between the Administrator and any potentially

12 responsible party pursuant to this section or section 129,

13 and who is not successful in overturning or modifying the

14 settlement, shall be liable to the United States and any set15 tling party for all reasonable attorney’s fees and costs in16 curred in defending the settlement.

17 ‘‘(r) PROFESSIONAL SERVICES.—The Administrator

18 has the authority to use the procedures set forth in section

19 109(e) to obtain the services of a neutral professional to as20 sist in the conduct of settlement negotiations under this sec21 tion, whether or not the neutral professional actually par22 ticipates in such negotiations.’’;

23 (5) in subsection (f)—

24 (A) by striking paragraph (1) and inserting

25 the following new paragraph:
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1 ‘‘(1) FINAL COVENANTS.—The President shall

2 offer potentially responsible parties who enter into

3 settlement agreements a final covenant not to sue con4 cerning any liability to the United States under this

5 Act, including a covenant with respect to future li6 ability, for response actions or response costs ad7 dressed in the settlement, if all of the following condi8 tions are met:

9 ‘‘(A) ASSURANCES OF PERFORMANCE.—

10 Such a settling party agrees to perform, or there

11 are other adequate assurances of the performance

12 of, a final remedial action authorized by the Ad13 ministrator for the release or threat of release

14 that is the subject of the settlement.

15 ‘‘(B) PROHIBITION ON HAZARDOUS SUB16 STANCES AT CONCENTRATIONS ABOVE PROTEC17 TIVE CONCENTRATION LEVELS.—The remedial

18 action does not provide that any hazardous sub19 stances will remain at the facility at concentra20 tions above the protective concentration levels es21 tablished pursuant to section 121(d) after the

22 final remedial action is completed.

23 ‘‘(C) PRIOR TO COMMENCEMENT OF LITIGA24 TION.—The settlement agreement has been

25 reached prior to the commencement of litigation
376

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1 against the settling party under section 106 or

2 107 with respect to this facility.

3 ‘‘(D) WAIVER.—The settling party waives

4 all contribution rights against other potentially

5 responsible parties at the facility.

6 ‘‘(E) PREMIUM.—

7 ‘‘(i) IN GENERAL.—Subject to clauses

8 (ii) and (iii), the settling party pays a pre9 mium that compensates for the risks of—

10 ‘‘(I) remedy failure;

11 ‘‘(II) future liability resulting

12 from unknown conditions;

13 ‘‘(III) unanticipated increases in

14 the cost of any uncompleted response

15 action, unless the settling party has

16 agreed to fully perform the response ac17 tion; and

18 ‘‘(IV) the United States litigation

19 risk as provided in section 129 with

20 respect to persons who have not re21 solved their liability to the United

22 States under this Act, unless all parties

23 have settled their liability to the Unit24 ed States, or the settlement covers 100
377

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1 percent of the United States response

2 costs.

3 ‘‘(ii) PRESIDENTIAL DISCRETION.—

4 Subject to clause (iii), the President shall

5 have sole discretion to determine the appro6 priate amount of any such premium, and

7 such determinations are committed to the

8 President’s discretion. The President shall

9 have discretion to waive or reduce the pre10 mium payment for persons who dem11 onstrate an inability to pay such a pre12 mium.

13 ‘‘(iii) DE MINIMIS SETTLEMENTS.—In

14 the case of a de minimis settlement, the

15 amount of the premium shall not exceed the

16 liability of the settling party for response

17 costs.

18 ‘‘(F) SETTLEMENT OTHERWISE ACCEPT19 ABLE.—The settlement is otherwise acceptable to

20 the United States.

21 ‘‘(G) PUBLIC INTEREST.—The covenant not

22 to sue is in the public interest.’’;

23 (B) by striking paragraph (3) and inserting

24 the following new paragraph:
378

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1 ‘‘(3) DISCRETIONARY COVENANTS.—For settle2 ments under this title for which covenants under

3 paragraph (1) are not available, the President may,

4 in his discretion, provide any person with a covenant

5 not to sue concerning any liability to the United

6 States under this title, if the covenant not to sue is

7 in the public interest. Such covenants shall be subject

8 to the requirements of paragraph (5). The President

9 may include any conditions in such covenant not to

10 sue, including the additional condition referred to in

11 paragraph (5). In determining whether such a condi12 tion or covenant is in the public interest, the Presi13 dent shall consider the nature and scope of the com14 mitment by the settling party under the settlement,

15 the effectiveness and reliability of the response action

16 involved, the nature of the risks remaining at the fa17 cility involved, the strength of evidence, the likelihood

18 of cost recovery, the effectiveness and reliability of

19 any response action or actions to restore, replace, or

20 acquire the equivalent of injured, damaged, or lost

21 natural resources, the extent to which performance

22 standards are included in the settlement order or de23 cree, the extent to which the technology used in the re24 sponse action is demonstrated to be effective, and any
379

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1 other factors relevant to the protection of human

2 health and the environment.’’;

3 (C) by striking paragraph (4);

4 (D) by redesignating paragraphs (5) and

5 (6) as paragraphs (4) and (5), respectively;

6 (E) in paragraph (2), by striking ‘‘reme7 dial’’ each place it appears and inserting ‘‘re8 sponse’’; and

9 (F) in paragraph (5) (as so redesignated)—

10 (i) in subparagraph (A)—

11 (I) by striking ‘‘remedial’’ the

12 first place it appears and inserting

13 ‘‘response’’;

14 (II) by striking ‘‘paragraph (2)’’

15 in the first sentence and inserting

16 ‘‘paragraph (1) or (2)’’;

17 (III) by striking ‘‘de minimis set18 tlements’’ and inserting ‘‘de minimis

19 and other expedited settlements pursu20 ant to subsection (g)’’; and

21 (IV) by striking ‘‘the President

22 certifies under paragraph (3) that re23 medial action has been completed at

24 the facility concerned’’ and inserting

25 ‘‘that the response action that is the
380

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1 subject of the settlement agreement is

2 selected’’; and

3 (ii) in subparagraph (B)—

4 (I) by striking ‘‘In extraordinary

5 circumstances, the’’ and inserting

6 ‘‘The’’;

7 (II) by striking ‘‘those referred to

8 in paragraph (4) and’’;

9 (III) by striking ‘‘if other terms,’’

10 and inserting ‘‘, if the agreement con11 taining the covenant not to sue pro12 vides for payment of a premium to

13 provide sufficient contingency funding

14 for possible remedy failure or any re15 leases that may result from unknown

16 conditions, and if other terms,’’; and

17 (IV) by adding at the end the fol18 lowing new sentence: ‘‘The President

19 may, in his discretion, waive or reduce

20 the premium payment for persons who

21 demonstrate an inability to pay such a

22 premium.’’;

23 (6) in subsection (g)—
381

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1 (A) by striking the subsection heading and

2 all that follows through the end of subparagraph

3 (A) of paragraph (1) and inserting the following:

4 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—

5 ‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET6 TLEMENT.—The President shall, as promptly as pos7 sible, offer to reach a final administrative or judicial

8 settlement with potentially responsible parties who, in

9 the judgment of the President, meet 1 or more of the

10 following conditions for eligibility for an expedited

11 settlement:

12 ‘‘(A) DE MINIMIS CONTRIBUTION.—The po13 tentially responsible party’s individual contribu14 tion of hazardous substances at the facility is de

15 minimis. For purposes of this subparagraph, the

16 contribution of hazardous substance to a facility

17 by a potentially responsible party is de minimis

18 if—

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

20 volumetric contribution of materials con21 taining hazardous substances is minimal in

22 comparison to the total volumetric contribu23 tions of materials containing hazardous

24 substances at the facility, and such individ25 ual contribution is presumed to be minimal
382

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1 if it is 1 percent or less of the total volu2 metric contribution at the facility, unless

3 the Administrator identifies a different

4 threshold based on site-specific factors; and

5 ‘‘(ii) the potentially responsible party’s

6 contribution of materials containing haz7 ardous substances does not present toxic or

8 other hazardous effects that are significantly

9 greater than those of other hazardous sub10 stances at the facility.’’;

11 (B) by inserting after subparagraph (B) of

12 paragraph (1) the following:

13 ‘‘(C) MUNICIPAL SOLID WASTE OR SEWAGE

14 SLUDGE.—The potentially responsible party’s li15 ability is based on paragraph (3) or (4) of sec16 tion 107(a), and the arrangement for disposal,

17 treatment, or transport for disposal or treatment,

18 or the acceptance for transport for disposal or

19 treatment, involved only municipal solid waste

20 or sewage sludge. The Administrator may offer to

21 settle the liability of generators and transporters

22 of municipal solid waste or sewage sludge whose

23 liability is limited pursuant to section 107(n)(2)

24 for up to 10 percent of the total response costs

25 at the facility.
383

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1 ‘‘(D) ABILITY TO PAY.—

2 ‘‘(i) IN GENERAL.—The potentially re3 sponsible party is a natural person, a small

4 business, or a municipality and dem5 onstrates to the United States an inability

6 or a limited ability to pay response costs. A

7 party who enters into a settlement pursuant

8 to this subparagraph shall be deemed to

9 have resolved the liability of the party

10 under this Act to the United States with re11 spect to all matters addressed in the settle12 ment.

13 ‘‘(ii) SMALL BUSINESSES.—For pur14 poses of this subparagraph, each of the fol15 lowing provisions shall apply:

16 ‘‘(I) REQUEST BY SMALL BUSI17 NESS.—In the case of a small business,

18 the President shall take into consider19 ation the ability to pay of the business,

20 if requested by the business. The Presi21 dent shall consider the reasonable ex22 pectation of the ability of the small

23 business to pay its total settlement

24 amount and still maintain its basic

25 business operations. Such consideration
384

•S 1834 RCS1S

1 shall include the business’s overall fi2 nancial condition and demonstrable

3 constraints on its ability to raise reve4 nues.

5 ‘‘(II) INFORMATION.—Any busi6 ness requesting such consideration shall

7 promptly provide the President with

8 all relevant information needed to de9 termine the business’s ability to pay.

10 ‘‘(III) DEMONSTRATION.—The

11 business shall demonstrate the amount

12 of its ability to pay. If the business

13 employs fewer than 20 employees, and

14 has gross income revenues of less than

15 $1,800,000 or a net profit margin of

16 less than 2 percent, the President shall

17 perform any analysis that may be re18 quired to demonstrate the business’s

19 ability to pay. The President, in his

20 discretion, may perform such analysis

21 for any other party or require such

22 other party to perform the analysis.

23 ‘‘(IV) ALTERNATIVE PAYMENT

24 METHODS.—If the President deter25 mines that a small business is unable
385

•S 1834 RCS1S

1 to pay its total settlement amount im2 mediately, the President shall consider

3 such alternative payment methods as

4 may be necessary or appropriate. The

5 methods to be considered may include

6 installment payments, to be paid dur7 ing a period not to exceed 10 years,

8 and the provision of in-kind services.

9 ‘‘(iii) CONSIDERATIONS.—For purposes

10 of this subparagraph, in the case of a mu11 nicipal owner or operator, the President

12 shall consider, to the extent that informa13 tion is provided by the municipality—

14 ‘‘(I) the general obligation bond

15 rating and information about the most

16 recent bond issue for which the rating

17 was prepared;

18 ‘‘(II) the amount of total available

19 funds (other than dedicated funds or

20 State assistance payments for remedi21 ation of inactive hazardous waste

22 sites);

23 ‘‘(III) the amount of total operat24 ing revenues (other than obligated or

25 encumbered revenues);
386

•S 1834 RCS1S

1 ‘‘(IV) the amount of total ex2 penses;

3 ‘‘(V) the amounts of total debt and

4 debt service;

5 ‘‘(VI) per capita income and cost

6 of living;

7 ‘‘(VII) real property values;

8 ‘‘(VIII) unemployment informa9 tion; and

10 ‘‘(IX) population information;

11 of the municipality.

12 ‘‘(iv) EVALUATION OF IMPACT.—A mu13 nicipality may also submit for consider14 ation by the President an evaluation of the

15 potential impact of the settlement on the

16 provision of municipal services, and the fea17 sibility of making delayed payments or

18 payments over time. If a municipality as19 serts that it has additional environmental

20 obligations besides its potential liability

21 under this Act, the municipality may create

22 a list of the obligations, including an esti23 mate of the costs of complying with such ob24 ligations.
387

•S 1834 RCS1S

1 ‘‘(v) RISK OF DEFAULT OR VIOLA2 TION.—A municipality may establish an

3 inability to pay for purposes of this sub4 paragraph through an affirmative showing

5 that such payment of its liability under this

6 Act would—

7 ‘‘(I) create a substantial demon8 strable risk that the municipality

9 would default on existing debt obliga10 tions (existing as of the time of the

11 showing), be forced into bankruptcy, be

12 forced to dissolve, or be forced to make

13 budgetary cutbacks that would substan14 tially reduce current levels (as of the

15 time of the showing) of protection of

16 public health and safety; or

17 ‘‘(II) necessitate a violation of

18 legal requirements or limitations of

19 general applicability concerning the

20 assumption and maintenance of fiscal

21 municipal obligations.

22 ‘‘(vi) ABILITY TO PAY OF SMALL MU23 NICIPALITIES.—Any individual municipal

24 owner or operator with a population of less

25 than 100,000 persons (as measured by the
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•S 1834 RCS1S

1 1990 census of population) shall be deemed

2 to have an ability to pay an amount equal

3 to no more than 10 percent of the total re4 sponse costs for the facility. In any case in

5 which more than 1 municipal owner or op6 erator at a facility comes within the cov7 erage of the first sentence of this clause, the

8 10 percent limitation on ability to pay

9 shall apply to the aggregate ability to pay

10 of all such owners or operators.

11 This paragraph shall not be construed to limit or af12 fect the President’s authority to evaluate any person’s

13 ability to pay or to enter into settlements with any

14 person based on that person’s inability to pay.’’;

15 (C) by striking paragraphs (2) and (3) and

16 inserting the following new paragraphs:

17 ‘‘(2) BASIS OF DETERMINATION.—Any person

18 who enters into a settlement pursuant to this sub19 section shall provide any information requested by the

20 President or by an allocator in accordance with sec21 tion 129 or 104(e). Neither the determination by the

22 President as to the eligibility of a party for a settle23 ment pursuant to this section, nor the terms of the

24 final settlement, shall be subject to judicial review. If

25 the President determines that a party is not eligible
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•S 1834 RCS1S

1 for a settlement pursuant to this section, the basis for

2 that determination shall be explained in writing to

3 any person who requests such a settlement.

4 ‘‘(3) ADDITIONAL FACTORS RELEVANT TO SET5 TLEMENTS WITH MUNICIPALITIES.—In any settlement

6 with a municipality pursuant to this title, the Presi7 dent may take additional equitable factors into ac8 count in determining an appropriate settlement

9 amount, including the limited resources available to

10 that party, and any in-kind services that the party

11 may provide to support the response action at the fa12 cility. In considering the value of in-kind services, the

13 President shall consider the fair market value of those

14 services.’’;

15 (D) in the second sentence of paragraph (4),

16 by striking ‘‘$500,000’’ and inserting

17 ‘‘$5,000,000’’;

18 (E) by striking paragraph (5); and

19 (F) by redesignating paragraph (6) as

20 paragraph (5); and

21 (7) in subsection (h)—

22 (A) by striking the subsection heading

23 and inserting the following: ‘‘AUTHORITY TO

24 SETTLE CLAIMS FOR FINES, CIVIL PENALTIES,

25 PUNITIVE DAMAGES, AND COST RECOVERY.—’’;
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•S 1834 RCS1S

1 (B) in paragraph (1)—

2 (i) in the first sentence, by striking

3 ‘‘costs incurred’’ and inserting ‘‘past and

4 future costs incurred or that may be in5 curred’’;

6 (ii) by inserting after the first sentence

7 the following new sentences: ‘‘The head of

8 any department or agency with the author9 ity to seek fines, civil penalties, or punitive

10 damages under this Act may consider, com11 promise, and settle a claim for any such

12 fines, civil penalties, or punitive damages

13 that may otherwise be assessed in civil ad14 ministrative or judicial proceedings if the

15 claim has not been referred to the Depart16 ment of Justice for further action. If the

17 total claim for fines, civil penalties, or pu18 nitive damages exceeds $300,000, such claim

19 may be compromised and settled only with

20 the prior written approval of the Attorney

21 General.’’; and

22 (iii) in the last sentence, by striking

23 ‘‘$500,000 (excluding interest), any claim

24 referred to in the preceding sentence’’ and

25 inserting ‘‘$5,000,000 (excluding interest),
391

•S 1834 RCS1S

1 any claim for response costs referred to in

2 this subsection’’;

3 (C) in paragraph (2), by striking ‘‘$500,000

4 (excluding interest)’’ and inserting ‘‘$5,000,000

5 (excluding interest)’’; and

6 (D) by striking paragraph (4).

7 SEC. 409. ALLOCATION PROCEDURES.

8 Title I (42 U.S.C. 9601 et seq.) (as amended by section

9 201) is further amended by adding at the end the following

10 new section:

11 ‘‘SEC. 129. ALLOCATION AT MULTIPARTY FACILITIES.

12 ‘‘(a) SCOPE.—

13 ‘‘(1) POST-INTRODUCTION RODS.—For each non14 federally owned facility listed on the National Prior15 ities List involving 2 or more potentially responsible

16 parties, for which the President selects a remedial ac17 tion on or after February 3, 1994, the Administrator

18 shall initiate the allocation process under this section.

19 This paragraph shall not apply to response actions

20 selected prior to such date.

21 ‘‘(2) PRE-INTRODUCTION RODS.—For each non22 federally owned facility listed on the National Prior23 ities List involving 2 or more potentially responsible

24 parties, for any remedial action selected by the Presi25 dent before February 3, 1994, the Administrator shall
392

•S 1834 RCS1S

1 initiate the allocation process under this section, if re2 quested to do so by a potentially responsible party

3 that has resolved its liability to the United States

4 with respect to the remedial action or that is perform5 ing the remedial action pursuant to an order issued

6 under section 106(a).

7 ‘‘(3) OTHER FACILITIES.—The Administrator, if

8 the Administrator considers use of such process to be

9 appropriate, may initiate the allocation process

10 under this section for any facility, other than a facil11 ity referred to in paragraph (1) or (2), involving 2

12 or more potentially responsible parties.

13 ‘‘(4) EXCLUDED FACILITIES.—The allocation

14 process under this section shall not apply to any of

15 the following:

16 ‘‘(A) A facility for which there has been a

17 final settlement, decree, or order, that determines

18 all liability under this Act or allocated shares of

19 response costs for all potentially responsible par20 ties.

21 ‘‘(B) A facility for which a response action

22 is being carried out by a State pursuant to the

23 authority of this Act, unless otherwise provided

24 in this Act.
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•S 1834 RCS1S

1 ‘‘(C) A facility at which the Administrator

2 determines that all of the potentially responsible

3 parties are potentially liable as current or past

4 owners or operators within the meaning of sec5 tion 107(a)(1) or 107(a)(2), notwithstanding

6 any other basis for liability. In determining

7 whether this exclusion is applicable where an ad8 ministrative or judicial proceeding with respect

9 to the facility was commenced prior to February

10 3, 1994, the Administrator shall consider only

11 those potentially responsible parties who were

12 named as parties to such actions on or before

13 such date.

14 ‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An alloca15 tion under this section shall apply to all post-Feb16 ruary 3, 1994, remedial actions selected for a facility

17 (but not to those remedial actions subject to para18 graph (2)), unless the allocator determines that the al19 location should address only 1 or more of such reme20 dial actions.

21 ‘‘(6) MULTIPLE FACILITIES.—An allocation

22 under this section may address more than 1 facility

23 where appropriate. Where appropriate, the Adminis24 trator may combine allocations performed pursuant
394

•S 1834 RCS1S

1 to this subsection for separate remedial actions at the

2 same facility, or for different facilities.

3 ‘‘(7) EFFECT OF ALLOCATION.—An allocation

4 pursuant to paragraph (2) or (3) shall not be con5 strued—

6 ‘‘(A) to require payment of an orphan share

7 pursuant to this section;

8 ‘‘(B) to require the conferral of reimburse9 ment rights pursuant to this section; or

10 ‘‘(C) to permit the reopening or modifica11 tion of any settlement or consent decree entered

12 into under this Act prior to the date of the initi13 ation of the allocation process.

14 ‘‘(8) SETTLEMENT OFFERS AFTER COMMENCE15 MENT OF LITIGATION.—The provisions of this section

16 shall not apply to any offer of settlement made after

17 expiration of the moratorium period under subsection

18 (b).

19 ‘‘(b) MORATORIUM ON COMMENCEMENT OR CONTINU20 ATION OF SUITS.—

21 ‘‘(1) MORATORIUM ON COMMENCEMENT.—No

22 person may assert any claim for response costs under

23 section 107 or commence any civil action seeking con24 tribution regarding or recovery of any response costs

25 in connection with a response action for which an al-
395

•S 1834 RCS1S

1 location is required under paragraph (1) or (2) of

2 subsection (a), or for which the Administrator has

3 initiated an allocation process under subsection

4 (a)(3), until 90 days after issuance of the allocator’s

5 report under subsection (h) or (m), whichever is later.

6 ‘‘(2) STAY OF EXISTING ACTIONS.—If a claim for

7 response costs under section 107 or an action seeking

8 recovery of response costs in connection with a re9 sponse action for which an allocation is to be per10 formed under this section is pending—

11 ‘‘(A) upon the date of enactment of the

12 Superfund Reform Act of 1994; or

13 ‘‘(B) upon initiation of an allocation proc14 ess;

15 the action or claim shall be stayed until 90 days after

16 the issuance of the latest allocator’s report required by

17 this section, unless the court determines that a stay

18 will result in manifest injustice.

19 ‘‘(3) STATUTE OF LIMITATIONS.—Any applicable

20 limitations period with respect to a cause of action

21 subject to paragraph (1) shall be tolled from the ear22 lier of the following until 180 days after the latest

23 allocator’s report required by this section has been is24 sued by the allocator:
396

•S 1834 RCS1S

1 ‘‘(A) The date of listing of the facility on

2 the National Priorities List.

3 ‘‘(B) The commencement of the allocation

4 process pursuant to this section.

5 ‘‘(c) COMMENCEMENT OF ALLOCATION.—

6 ‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa7 cilities subject to this section, the Administrator shall,

8 as soon as practicable, but not later than 60 days

9 after the commencement of a remedial investigation,

10 initiate a thorough investigation and search for all

11 potentially responsible parties, using authorities of

12 the Administrator under section 104. Any person may

13 submit information to the Administrator concerning

14 any potentially responsible party at the facility, and

15 the Administrator shall consider such information in

16 carrying out the responsible party search.

17 ‘‘(2) NOTIFICATION OF DE MINIMIS PARTIES.—As

18 soon as practicable after receipt of sufficient informa19 tion, but not later than 12 months after the com20 mencement of the remedial investigation, the Admin21 istrator shall take each of the following actions:

22 ‘‘(A) NOTIFICATION.—The Administrator

23 shall notify any potentially responsible party

24 who the Administrator determines is eligible for

25 an expedited final settlement in accordance with
397

•S 1834 RCS1S

1 section 122(g)(1)(A) of its eligibility, based on

2 information available to the Administrator at

3 the time the determination is made.

4 ‘‘(B) SETTLEMENT OFFER.—The Adminis5 trator shall submit a written settlement offer to

6 each party notified under subparagraph (A) no

7 later than 60 days after such notification. At the

8 same time as the submission under the preceding

9 sentence, the Administrator shall make available

10 to the party, upon request, any nonconfidential

11 information on which the Administrator based

12 the settlement offer. If the settlement offer is

13 based in whole or in part on confidential infor14 mation, the Administrator shall so inform the

15 party.

16 ‘‘(3) PRELIMINARY NOTICE TO OTHER PAR17 TIES.—As soon as practicable after receipt of suffi18 cient information, but not later than 18 months after

19 the commencement of the remedial investigation, the

20 Administrator shall—

21 ‘‘(A) notify any party not previously noti22 fied under paragraph (2) who the Administrator

23 determines is eligible for an expedited final set24 tlement in accordance with section 122(g)(1)(A)

25 of its eligibility, based on information available
398

•S 1834 RCS1S

1 to the Administrator at the time the determina2 tion is made;

3 ‘‘(B) issue a list of all potentially respon4 sible parties preliminarily identified by the Ad5 ministrator to all such parties;

6 ‘‘(C) notify the public, in accordance with

7 section 117(d), of the list of potentially respon8 sible parties notified or listed pursuant to sub9 paragraph (A) or (B), respectively; and

10 ‘‘(D) make available all responses to infor11 mation requests, and a preliminary list of neu12 tral parties whom the Administrator believes to

13 be qualified to perform an allocation with re14 spect to the facility (as determined in accordance

15 with the factors described in subclauses (I)

16 through (VI) of paragraph (6)(B)(ii)), or the fac17 tors described in paragraph (6)(B)(iii), as ap18 propriate, as well as other relevant information

19 concerning the facility and potentially respon20 sible parties, to the notified parties, except that

21 the Administrator shall not make available any

22 privileged or confidential information, unless

23 otherwise authorized by law.

24 The Administrator shall take the actions specified in

25 this paragraph within 9 months after the date of en-
399

•S 1834 RCS1S

1 actment of this section for all facilities eligible for al2 location under paragraph (1) or (2) of subsection (a)

3 for which the responsible party search described in

4 paragraph (1) was substantially complete prior to the

5 date of the enactment of this section.

6 ‘‘(4) STATUS OF PARTIES.—At the time of pro7 posing the list of potentially responsible parties under

8 paragraph (3), the Administrator shall—

9 ‘‘(A) identify parties that are eligible for ex10 pedited settlement pursuant to section 122(g);

11 ‘‘(B) identify parties who are not eligible

12 for such expedited settlement; and

13 ‘‘(C) identify parties for which the Admin14 istrator determines that there is insufficient in15 formation to ascertain whether or not the parties

16 are entitled to such expedited settlement.

17 ‘‘(5) NOMINATION OF PARTIES.—

18 ‘‘(A) IDENTIFICATION.—For 60 days after

19 information has been made available pursuant to

20 paragraph (3)(C), the parties identified by the

21 Administrator in such notification and members

22 of the community shall have the opportunity to

23 identify and nominate additional potentially re24 sponsible parties, to identify and nominate neu25 tral parties whom the identified parties believe
400

•S 1834 RCS1S

1 to be qualified to perform an allocation with re2 spect to the facility (as determined in accordance

3 with the factors described in subclauses (I)

4 through (VI) of paragraph (6)(B)(ii)), or the fac5 tors described in paragraph (6)(B)(iii), as ap6 propriate, or otherwise provide information rel7 evant to the facility or such potentially respon8 sible parties. The 60-day period may be extended

9 by the Administrator for an additional 30 days

10 upon request of any person.

11 ‘‘(B) DISCLOSURE OF INFORMATION.—Any

12 proposal for the addition of any potentially re13 sponsible party with respect to a facility shall be

14 supported by a statement demonstrating that

15 there is an adequate basis in law and fact to de16 termine that the additional nominated party is

17 potentially liable under this Act and by full dis18 closure to the Administrator, and simultaneously

19 to the nominated party, of all available informa20 tion concerning that party’s liability under this

21 Act and that party’s contribution of hazardous

22 substances to the facility. Not later than 30 days

23 after the receipt by the nominated party of the

24 information referred to in the preceding sentence,

25 the nominated party may submit to the Admin-
401

•S 1834 RCS1S

1 istrator information relating to the nomination

2 of the party as a potentially responsible party

3 with respect to the facility.

4 ‘‘(6) LIST OF ALLOCATION PARTIES.—

5 ‘‘(A) LISTING AND IDENTIFICATION.—With6 in 60 days after the end of the period specified

7 in paragraph (5)(A) for the proposal of addi8 tional parties, the Administrator shall—

9 ‘‘(i) issue a list of parties subject to the

10 allocation process (referred to individually

11 in this section as an ‘allocation party’);

12 ‘‘(ii) identify in writing, as to each of

13 the proposed additional parties, which par14 ties the Administrator has determined, in

15 the Administrator’s sole discretion—

16 ‘‘(I) to be eligible for expedited

17 settlement pursuant to section 122(g);

18 ‘‘(II) not to be eligible for such ex19 pedited settlement; and

20 ‘‘(III) for whom insufficient infor21 mation exists to determine whether or

22 not the party is eligible for such expe23 dited settlement; and

24 ‘‘(iii) identify (in writing supported

25 by a brief explanation) those parties as to
402

•S 1834 RCS1S

1 which the Administrator has determined, in

2 the Administrator’s sole discretion, that

3 there is an inadequate basis in law or fact

4 to determine that the party is potentially

5 liable under this Act.

6 For each party identified under clause (iii), the

7 Administrator shall, to the extent practicable,

8 further identify whether that party, if liable,

9 would be eligible for such an expedited settle10 ment. In making determinations under this sub11 paragraph, the Administrator shall consider all

12 available information, including any informa13 tion provided pursuant to paragraph (5)(B).

14 ‘‘(B) LIST OF NEUTRAL PARTIES.—

15 ‘‘(i) IN GENERAL.—At the time of issu16 ance of the list of parties provided for in

17 subparagraph (A)(i), the Administrator

18 shall provide the potentially responsible

19 parties who received notice under this sub20 section with a list of neutral parties who

21 are qualified to perform an allocation at the

22 facility, as determined in accordance with

23 clause (ii) or (iii), as appropriate. The Ad24 ministrator shall include in the list not

25 fewer than 5 neutral parties nominated by
403

•S 1834 RCS1S

1 any allocation party on the list issued

2 under subparagraph (A)(i), except that the

3 Administrator may reject any such party

4 on the basis that the party fails to meet the

5 requirements of clause (ii). The decision of

6 the Administrator to reject such a party

7 shall be accompanied by an explanation,

8 but shall not be subject to judicial review.

9 ‘‘(ii) QUALIFICATIONS.—For purposes

10 of clause (i), a party shall be considered

11 qualified to perform an allocation if the Ad12 ministrator determines, in the sole discre13 tion of the Administrator, that the party—

14 ‘‘(I) is not an employee of the

15 United States;

16 ‘‘(II) has an ability to exercise

17 independent judgment;

18 ‘‘(III) has experience in the reso19 lution of disputes;

20 ‘‘(IV) has experience in the appli21 cation of this Act, the Solid Waste Dis22 posal Act (42 U.S.C. 6901 et seq.), or

23 another law governing the remediation

24 of hazardous substances;
404

•S 1834 RCS1S

1 ‘‘(V) is otherwise professionally

2 qualified to perform an allocation; and

3 ‘‘(VI) has such other qualifica4 tions as the Administrator shall specify

5 in guidelines published within 60 days

6 after the date of enactment of this sec7 tion.

8 ‘‘(iii) PRIOR ALLOCATIONS.—For pur9 poses of clause (i), in determining the quali10 fications of a neutral party who has pre11 viously performed an allocation under this

12 Act, the Administrator shall assume that

13 the party is qualified if the party—

14 ‘‘(I) has performed any prior allo15 cation under this Act in a timely man16 ner and in accordance with this Act;

17 ‘‘(II) has not submitted any prior

18 allocator’s report under this Act that

19 has been rejected by the Administrator

20 and the Attorney General; and

21 ‘‘(III) meets the requirements of

22 clause (ii).

23 ‘‘(C) DE MINIMIS PARTIES.—Parties poten24 tially eligible for a settlement under section

25 122(g) (referred to in this section as ‘de minimis
405

•S 1834 RCS1S

1 parties’) that the Administrator identifies as en2 titled to expedited settlement pursuant to this

3 section, shall not be subject to, or assigned a

4 share in, the allocation (except to the extent re5 quired to determine the orphan share pursuant

6 to subsection (h)), unless that party fails to reach

7 an agreement with the President on settlement

8 terms within 60 days after the offer involved is

9 received.

10 ‘‘(D) INADEQUATE BASIS.—If the Adminis11 trator determines that there is an inadequate

12 basis in law or fact to conclude that a party is

13 liable based on the information presented by the

14 nominating party or otherwise available to the

15 Administrator, the determination shall have the

16 following effect:

17 ‘‘(i) EXEMPT PARTIES.—With respect

18 to a party that the Administrator has deter19 mined to be—

20 ‘‘(I) exempt from liability pursu21 ant to section 107(n)(1); or

22 ‘‘(II) not liable on some other

23 basis but who, if liable, would be eligi24 ble for such an expedited settlement;
406

•S 1834 RCS1S

1 the Administrator’s determination that

2 there is an inadequate basis in law or fact

3 to conclude that party to be liable shall

4 mean that the party is not subject to, and

5 shall not be assigned a share in, the alloca6 tion.

7 ‘‘(ii) OTHER PARTIES.—With respect

8 to all other parties, the Administrator’s de9 termination shall be accorded deference by

10 the allocator. For such parties, the allocator

11 shall consider the Administrator’s deter12 mination together with the allocation fac13 tors listed in subsection (h)(2).

14 ‘‘(E) PROHIBITION ON JUDICIAL REVIEW.—

15 The Administrator’s determinations for purposes

16 of this subsection shall not be subject to judicial

17 review, nor shall any determination or expla18 nation provided for purposes of an allocation be

19 admissible for any purpose in an action com20 menced by the United States against the party

21 that is the subject of the determination or any

22 other party.

23 ‘‘(F) ZERO SHARE.—The allocator may as24 sign a zero share to any party the allocator de25 termines should receive such a share in consider-
407

•S 1834 RCS1S

1 ation of the allocation factors, including the Ad2 ministrator’s determinations regarding parties

3 identified under subparagraph (C).

4 ‘‘(G) COSTS OF ZERO SHARE PARTY.—If a

5 party is assigned a zero share by the allocator,

6 the costs of the party of participating in the allo7 cation process (including reasonable attorney’s

8 fees) shall be—

9 ‘‘(i) paid by the potentially responsible

10 party who initially identified and nomi11 nated the zero share party for inclusion in

12 the allocation process pursuant to para13 graph (5); or

14 ‘‘(ii) if the Administrator initially

15 identified the zero share party for inclusion

16 in the allocation process pursuant to this

17 subsection, funded from amounts made

18 available under subsection (r)(2).

19 ‘‘(d) DE MINIMIS SETTLEMENT OFFER.—

20 ‘‘(1) SETTLEMENT OFFER.—Within 30 days

21 after the final list of parties is issued pursuant to

22 paragraph (6)(A)(i) of subsection (c), the Adminis23 trator shall submit a written settlement offer to any

24 party identified as a potentially responsible party

25 pursuant to this section who the Administrator has
408

•S 1834 RCS1S

1 determined is eligible for an expedited final settlement

2 in accordance with section 122(g)(1)(A), and who has

3 not entered into a settlement with the United States

4 regarding the matters being addressed by the alloca5 tion. At the same time as the submission under the

6 preceding sentence, the Administrator shall make

7 available to the party, upon request, any

8 nonconfidential information on which the Adminis9 trator based the settlement offer and that was not pre10 viously provided to the party. If the settlement offer

11 is based in whole or in part on confidential informa12 tion, the Administrator shall so inform the party.

13 ‘‘(2) PROHIBITION ON PREMIUM.—The President

14 shall not include any premium in a settlement offer

15 made pursuant to paragraph (1) more than 60 days

16 after the date the offer is required to be made pursu17 ant to paragraph (1) to a party that is a small busi18 ness.

19 ‘‘(3) SETTLEMENT OFFERS TO SMALL BUSI20 NESSES.—If a party is a small business that the

21 President has determined is eligible for a settlement

22 pursuant to section 122(g)(1)(A), and is not offered a

23 settlement by the President within 120 days after the

24 date the offer is required to be made pursuant to

25 paragraph (1), the party shall have no further liabil-
409

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1 ity under this Act for the costs of response actions at

2 the facility for which the allocation is being per3 formed, unless the party has failed to fully comply

4 with information requests under this Act or failed to

5 provide in a timely manner information to ascertain

6 whether the party is entitled to such expedited settle7 ment.

8 ‘‘(e) SELECTION OF ALLOCATOR.—

9 ‘‘(1) PROPOSAL OF ADDITIONAL CANDIDATES.—

10 Any party identified by the Administrator under sub11 section (c) may propose any person whom such party

12 determines to be qualified for selection as an allocator

13 in addition to those proposed from the list provided

14 under subsection (c)(6)(B).

15 ‘‘(2) SELECTION OF ALLOCATOR BY ALLOCATION

16 PARTIES.—

17 ‘‘(A) SELECTION.—The allocation parties

18 shall select an allocator from the list of allocators

19 proposed by the Administrator under subsection

20 (c)(6)(B) or from among names proposed under

21 paragraph (1) by the following voting method

22 with each allocation party having a single vote:

23 ‘‘(i) VOTING.—Each allocation party,

24 and the Administrator (in casting a vote on

25 behalf of each of the identified but insolvent
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1 or defunct parties), shall numerically rank

2 the individuals on the final list of proposed

3 allocators, with a ranking of 1 indicating

4 first preference, and forward its vote to the

5 Administrator within 30 days after the is6 suance of the final list of allocators pursu7 ant to subsection (c)(6)(B).

8 ‘‘(ii) DETERMINATION.—The proposed

9 allocator who receives the lowest combined

10 numerical score, taking into account all

11 votes submitted to the Administrator pursu12 ant to clause (i), and who agrees to serve as

13 allocator, shall be selected as the allocator.

14 ‘‘(B) VOTE BY THE ADMINISTRATOR.—The

15 Administrator may cast a vote on behalf of each

16 of the identified but insolvent or defunct parties.

17 Each allocation party shall otherwise have a sin18 gle vote under this paragraph.

19 ‘‘(3) PEREMPTORY STRIKE.—The Administrator

20 may reject any allocator selected by the allocation

21 parties if the proposed allocator is not on the list pro22 vided under paragraph (6)(B) of subsection (c).

23 Whenever the Administrator rejects a proposed allo24 cator under this paragraph, the Administrator shall

25 supply the reasons for such rejection to each alloca-
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•S 1834 RCS1S

1 tion party. In the case of any such rejection the allo2 cator shall be selected in order of lowest combined nu3 merical score in accordance with paragraph (2).

4 ‘‘(4) SELECTION OF ALLOCATOR BY ENVIRON5 MENTAL PROTECTION AGENCY.—

6 ‘‘(A) IN GENERAL.—If the allocation parties

7 do not select an allocator pursuant to paragraph

8 (3) within 60 days after receipt of the list pro9 vided under subsection (c)(6)(B), the Adminis10 trator shall select the allocator, except as pro11 vided in subparagraph (B).

12 ‘‘(B) REJECTIONS BY THE ADMINIS13 TRATOR.—If the Administrator rejects 4

14 allocators selected by the allocation parties, the

15 Administrator shall initiate a new allocator se16 lection process under this subsection. If the Ad17 ministrator rejects 4 allocators selected by the al18 location parties during the new allocator selec19 tion process, the parties shall select an allocator

20 from the list described in subsection (c)(6)(B),

21 or, if the parties fail to select the allocator, the

22 Administrator shall select the allocator from the

23 list.

24 ‘‘(f) CONTRACT.—Following selection of the allocator,

25 the Administrator shall enter into a contract with the se-
412

•S 1834 RCS1S

1 lected allocator for the provision of allocation services, and

2 immediately make available all responses to information re3 quests, as well as other relevant information, concerning the

4 facility and potentially responsible parties, to the allocator.

5 The Administrator has the authority to use the procurement

6 procedures set forth in section 109(e) to procure the services

7 of a neutral professional for use in conducting allocation

8 procedures under this section, whether or not the neutral

9 professional actually conducts such allocation procedures.

10 Nothing in this section shall be construed to require the Ad11 ministrator to enter into such a contract with a person who

12 has previously issued an allocator’s report under this sec13 tion that has been rejected by the Administrator and Attor14 ney General or who has failed to comply with the require15 ments of this Act.

16 ‘‘(g) POTENTIALLY RESPONSIBLE PARTY SETTLE17 MENT.—At any time prior to the issuance of an allocator’s

18 report as described in subsection (h), any group of poten19 tially responsible parties may submit to the allocator a pri20 vate allocation proposal for the remedial action at the entire

21 facility or a portion of the facility. If such private alloca22 tion proposal meets all of the following criteria, the allo23 cator shall promptly adopt it as the allocator’s report:

24 ‘‘(1) BINDING ALLOCATION.—The private alloca25 tion is a binding allocation of 100 percent of the past,
413

•S 1834 RCS1S

1 present, and future recoverable costs of the remedial

2 action at the entire facility or a portion of the facil3 ity.

4 ‘‘(2) PROHIBITION ON ALLOCATION TO

5 NONSIGNATORIES.—The private allocation does not

6 allocate any share of response costs to any person who

7 is not a signatory to the private allocation proposal

8 or, in the case of any orphan share, unless the United

9 States is a signatory to the private allocation pro10 posal.

11 ‘‘(3) WAIVER.—The signatories to the private al12 location proposal waive their contribution rights with

13 respect to the remedial action at the entire facility or

14 a portion of the facility against all other potentially

15 responsible parties at the facility.

16 ‘‘(h) ALLOCATION DETERMINATION.—

17 ‘‘(1) SETTLEMENT AND REPORT.—Following is18 suance of the final list of allocation parties pursuant

19 to subsection (c)(6)(A)(i), the allocator shall initiate

20 and conduct an allocation process that shall cul21 minate in the issuance of a written report, with a

22 nonbinding, equitable allocation of the percentage

23 shares of responsibility for response costs (other than

24 operation and maintenance costs assumed by a State

25 pursuant to section 104(c)(11)) at the facility (re-
414

•S 1834 RCS1S

1 ferred to in this section as a ‘share’) of all allocation

2 parties, including an orphan share, for the facility,

3 and provide such report to the allocation parties and

4 the Administrator. Such report shall not disclose con5 fidential or privileged information. The allocator

6 shall provide the report to the allocation parties and

7 the Administrator within 180 days after the issuance

8 of the list of parties pursuant to subsection

9 (c)(6)(A)(i) or the date the contract for allocation

10 services is entered into pursuant to subsection (f),

11 whichever is later. Upon request by the allocator, for

12 good cause shown by any allocation party, the Ad13 ministrator may grant the allocator additional time

14 to complete the allocation, not to exceed 90 days.

15 ‘‘(2) FACTORS IN THE ALLOCATION.—The allo16 cator shall prepare a nonbinding, equitable allocation

17 of shares for the facility based on each of the following

18 factors:

19 ‘‘(A) The amount of hazardous substances

20 contributed by each allocation party.

21 ‘‘(B) The degree of toxicity of hazardous

22 substances contributed by each allocation party.

23 ‘‘(C) The mobility of hazardous substances

24 contributed by each allocation party.
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1 ‘‘(D) The degree of involvement of each allo2 cation party in the generation, transportation,

3 treatment, storage, or disposal of the hazardous

4 substance.

5 ‘‘(E) The degree of care exercised by each al6 location party with respect to the hazardous sub7 stance, taking into account the characteristics of

8 the hazardous substance.

9 ‘‘(F) The cooperation of each allocation

10 party in contributing to the response action and

11 in providing complete and timely information

12 during the allocation process.

13 ‘‘(G) Such other factors as the Adminis14 trator determines are appropriate by published

15 guidance, which shall be consistent with this Act

16 and shall be published only after notice and op17 portunity for public comment. An alleged failure

18 of the allocator to consider 1 or more additional

19 factors set forth in such guidance shall not be

20 deemed to be unlawful conduct or procedural

21 error for purposes of paragraph (2) or (3) of sub22 section (l).

23 ‘‘(3) CONDUCT OF ALLOCATION PROCESS.—The

24 allocator shall conduct the allocation process and

25 render a decision based solely on the provisions of this
416

•S 1834 RCS1S

1 section, including the allocation factors specified in

2 paragraph (2). Each party to the allocation shall be

3 afforded an opportunity to be heard (either orally or

4 in writing, at the allocator’s discretion), and an op5 portunity to comment on a draft allocator’s report.

6 The allocator shall not be required to respond to com7 ments.

8 ‘‘(4) IDENTIFICATION OF ORPHAN SHARES.—

9 ‘‘(A) COMPONENTS OF ORPHAN SHARE.—

10 The allocator may determine that a share for the

11 facility is specifically attributable to an orphan

12 share. The orphan share shall consist only of

13 each of the following:

14 ‘‘(i) Shares attributable to hazardous

15 substances that the allocator determines, on

16 the basis of information presented, to be

17 specifically attributable to identified but in18 solvent or defunct allocation parties who are

19 not affiliated with any viable allocation

20 party.

21 ‘‘(ii) The difference between—

22 ‘‘(I) the aggregate share that the

23 allocator determines, on the basis of the

24 information presented, is specifically

25 attributable to allocation parties that
417

•S 1834 RCS1S

1 are contributors of municipal solid

2 waste or sewage sludge subject to the

3 limitations in section 122(g)(1)(C);

4 and

5 ‘‘(II) the share actually assumed

6 by those parties in any settlements

7 with the United States pursuant to sec8 tion 122(g), including the fair market

9 value of in-kind services provided by a

10 municipality.

11 ‘‘(iii) The difference between—

12 ‘‘(I) the aggregate share that the

13 allocator determines, on the basis of in14 formation presented, to be specifically

15 attributable to allocation parties with

16 a limited ability to pay response costs;

17 and

18 ‘‘(II) the share actually assumed

19 by those parties in any settlements

20 with the United States pursuant to sec21 tion 122(g).

22 ‘‘(iv) The costs described in subsection

23 (c)(6)(G) of each zero share party identified

24 by the Administrator, as described in sub25 section (c)(6)(G)(ii).
418

•S 1834 RCS1S

1 ‘‘(v) Shares that the allocator deter2 mines, on the basis of the information pre3 sented, are specifically attributable to par4 ties that, solely due to the application of

5 subsection (d)(3), have no liability under

6 this Act for the costs of response actions at

7 the facility for which the allocation is being

8 performed.

9 ‘‘(B) NOT INCLUDED IN ORPHAN SHARE.—

10 Shares attributable to hazardous substances that

11 the allocator cannot attribute to any identified

12 party shall be distributed among the allocation

13 parties, including the orphan share.

14 ‘‘(i) ANSWERS AND CERTIFICATIONS TO ALLOCATOR’S

15 INFORMATION REQUESTS.—

16 ‘‘(1) SUBPOENAS AND INFORMATION RE17 QUESTS.—Where necessary to assist in determining

18 the allocation of shares, the allocator may request in19 formation or documents from any allocation party in

20 accordance with paragraph (2) or (5) of section

21 104(e), and require by subpoena the attendance of

22 persons or the production of documents, or other in23 formation in accordance with section 104(e)(9). Any

24 allocation party to whom a request is directed shall

25 include in the response a certification by a respon-
419

•S 1834 RCS1S

1 sible representative or authorized representative that

2 satisfies the requirement of section 104(e)(3). The al3 locator may also request the Administrator to utilize

4 the authorities of paragraph (2) and to exercise any

5 information-gathering authority of the Administrator

6 under this Act.

7 ‘‘(2) POWERS OF THE ALLOCATOR.—In addition

8 to the information-gathering authority set forth in

9 paragraph (1), the allocator shall have the author10 ity—

11 ‘‘(A) to schedule meetings and require the

12 attendance of allocation parties at such meetings;

13 ‘‘(B) to require that allocation parties wish14 ing to present similar legal or factual positions

15 consolidate their presentations;

16 ‘‘(C) to obtain or employ support services,

17 including secretarial and clerical services, com18 puter support services, and legal and investiga19 tive services; and

20 ‘‘(D) to take any other actions necessary to

21 conduct a fair, efficient, and impartial alloca22 tion process.

23 ‘‘(j) CIVIL AND CRIMINAL PENALTIES.—

24 ‘‘(1) CIVIL PENALTIES.—Where the allocator is25 sues an administrative subpoena or information or
420

•S 1834 RCS1S

1 document request pursuant to subsection (i), a party

2 who unreasonably fails to comply with the subpoena

3 or request shall be subject to a civil penalty not to ex4 ceed $25,000 for each day of noncompliance.

5 ‘‘(2) ENFORCEMENT.—The allocator may seek

6 enforcement of an administrative subpoena or an in7 formation or document request pursuant to subsection

8 (i)(1), and shall seek such enforcement by requesting

9 that the Attorney General commence an action to en10 force the subpoena or request. The Attorney General,

11 within 30 days after receiving such request from the

12 allocator, shall—

13 ‘‘(A) notify the allocator that the Attorney

14 General will commence an action to enforce the

15 subpoena or information or document request;

16 ‘‘(B) notify the allocator that the Attorney

17 General will not seek enforcement of the sub18 poena or request because the subpoena or request

19 is barred by law or would result in annoyance,

20 embarrassment, oppression, or undue burden or

21 expense, to the party to whom it was issued; or

22 ‘‘(C) notify the allocator that the Attorney

23 General has insufficient information on which to

24 determine whether an enforcement action is ap25 propriate.
421

•S 1834 RCS1S

1 ‘‘(3) FAILURE OF ATTORNEY GENERAL TO RE2 SPOND.—If the Attorney General fails to provide any

3 response to the allocator within 30 days after a re4 quest for enforcement of the subpoena or information

5 or document request, the allocator may retain counsel

6 and commence a civil action to enforce the subpoena

7 or information or document request.

8 ‘‘(4) PENALTY.—If the Attorney General or allo9 cator prevails in an action to enforce the subpoena or

10 information or document request, the party who failed

11 to comply shall be subject to a sanction that may in12 clude civil penalties as provided in paragraph (1).

13 The court shall require such party to pay the reason14 able expenses, including attorney’s fees, caused by the

15 failure to comply, unless the court finds that the fail16 ure was substantially justified or that other cir17 cumstances make an award of expenses unjust.

18 ‘‘(5) CRIMINAL.—Any person who knowingly

19 makes any false material statement or representation

20 in the response to the subpoena or information or doc21 ument request issued pursuant to subsection (i) shall

22 be deemed to have made a false statement on a matter

23 within the jurisdiction of any department or agency

24 of the United States within the meaning of section

25 1001 of title 18, United States Code.
422

•S 1834 RCS1S

1 ‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIALITY.—

2 ‘‘(1) DOCUMENT REPOSITORY.—The allocator

3 shall establish and maintain a document repository

4 containing copies of all documents and information—

5 ‘‘(A) provided by the Administrator pursu6 ant to this section;

7 ‘‘(B) provided or generated by the allocation

8 parties; or

9 ‘‘(C) generated by the allocator during the

10 allocation.

11 The documents and information in the document re12 pository shall be available only to the parties to the

13 allocation process for review and copying at their

14 own expense, subject to the confidentiality provisions

15 of paragraph (2). The Administrator shall provide to

16 the allocator all information obtained under section

17 104(e), including information entitled to protection

18 under section 1905 of title 18, United States Code, or

19 exempt from disclosure pursuant to section 552(a) of

20 title 5, United States Code. An allocation party shall

21 not assert any privilege as a basis for withholding

22 any information from the allocator.

23 ‘‘(2) CONFIDENTIALITY.—All documents and ma24 terials submitted to the allocator or placed in the doc25 ument repository, together with the record of any in-
423

•S 1834 RCS1S

1 formation generated or obtained during the allocation

2 process, shall be confidential. The allocator, each allo3 cation party, the Administrator, and the Attorney

4 General shall maintain such documents and mate5 rials, together with the record of any information gen6 erated or obtained during the allocation process, as

7 confidential and are prohibited from using any such

8 material in any other matter or proceeding, and the

9 documents, materials, and record shall not be subject

10 to disclosure under section 552 of title 5, United

11 States Code. Such material shall not be discoverable

12 or admissible in any other Federal, State, or local ju13 dicial, administrative, or legislative proceedings, ex14 cept—

15 ‘‘(A) a new allocation process pursuant to

16 subsection (m) or (n) for the same remedial ac17 tion or operable unit; or

18 ‘‘(B) an initial allocation process for a dif19 ferent remedial action or operable unit at the

20 same facility.

21 Nothing in this section shall be construed to authorize

22 any person, including the allocator, to withhold any

23 documents or information from Congress, or any duly

24 authorized committee thereof, or limit in any manner

25 the right of Congress, or any duly authorized commit-
424

•S 1834 RCS1S

1 tee thereof, to obtain such documents or information.

2 Any person disclosing such documents or information

3 to Congress shall notify the person who produced such

4 documents or information of the fact of such disclo5 sure.

6 ‘‘(3) DISCOVERABILITY AND ADMISSIBILITY.—

7 Notwithstanding paragraph (2), if the original of any

8 document or material submitted to the allocator or

9 placed in the document repository was, in the hands

10 of the party that provided it, otherwise discoverable or

11 admissible, then such original document, if subse12 quently sought from such party, shall remain discov13 erable or admissible. If a fact generated or obtained

14 during the allocation process was, in the hands of a

15 witness, otherwise discoverable or admissible, such

16 fact, if subsequently sought from such other party,

17 shall remain discoverable or admissible.

18 ‘‘(4) NO WAIVER OF PRIVILEGE.—The submission

19 of documents or information pursuant to the alloca20 tion process shall not be deemed to be a waiver of any

21 privilege, applicable to such documents or informa22 tion, under any Federal or State law or rule of dis23 covery or evidence.

24 ‘‘(5) PROCEDURE WHEN DISCOVERY IS

25 SOUGHT.—Any person, including the United States
425

•S 1834 RCS1S

1 and any Federal, State, or local agency, department,

2 or instrumentality, receiving any request for a state3 ment, document, or material submitted under this

4 title, or for the record of any allocation proceeding,

5 shall promptly notify the person who originally sub6 mitted such item and shall provide such submitting

7 person the opportunity to assert and defend the con8 fidentiality of such item. No person shall release or

9 provide a copy of the item to any person not a party

10 to such allocation, except as may be required by court

11 order.

12 ‘‘(6) CIVIL PENALTY FOR VIOLATION OF CON13 FIDENTIALITY.—Any person who fails to maintain

14 the confidentiality of any statement, document, or in15 formation generated or obtained during an allocation

16 proceeding, or who releases any such statement, docu17 ment, or information in violation of this section shall

18 be subject to a civil penalty of up to $25,000 per vio19 lation. Such penalty may be sought in a civil action

20 initiated by the Attorney General on behalf of the

21 United States, or any allocation party adversely af22 fected by the failure to maintain confidentiality.

23 ‘‘(l) REJECTION OF ALLOCATOR’S REPORT.—The Ad24 ministrator and the Attorney General may reject an

25 allocator’s report if they jointly determine that—
426

•S 1834 RCS1S

1 ‘‘(1) no rational interpretation of the facts before

2 the allocator, in light of the factors the allocator is re3 quired to consider, would form a reasonable basis for

4 the shares assigned to the allocation parties;

5 ‘‘(2) the allocation was affected by bias, fraud, or

6 unlawful conduct; or

7 ‘‘(3) the allocation was substantially and di8 rectly affected by procedural error.

9 The allocator’s report may not be rejected after the United

10 States has accepted a settlement offer (excluding de minimis

11 or other expedited settlements) pursuant to the allocation.

12 The Administrator and the Attorney General shall make

13 any such determination with respect to rejection of the re14 port within 180 days after the receipt of the first offer pur15 suant to the allocator’s report. The determinations of the

16 Administrator and the Attorney General under this sub17 section shall not be judicially reviewable. No such deter18 mination may be delegated to any officer or employee of

19 the Environmental Protection Agency or the Department

20 of Justice below the level of an Assistant Secretary or Acting

21 Assistant Secretary with authority for implementing this

22 Act at the Environmental Protection Agency or the Depart23 ment of Justice.

24 ‘‘(m) SECOND ALLOCATION.—If the Administrator and

25 Attorney General reject an allocator’s report, the parties
427

•S 1834 RCS1S

1 shall select a new allocator pursuant to subsection (e) to

2 perform, on an expedited basis, a new allocation based on

3 the same record (but taking into account any correction for

4 bias, fraud, unlawful conduct, or procedural error that

5 served as the basis for the rejection) available to the first

6 allocator. The moratorium on commencement of litigation

7 and tolling of statutes of limitation set forth in paragraphs

8 (1) through (3) of subsection (b) shall be extended until 90

9 days after the issuance of the second allocator’s report. If

10 the Administrator and Attorney General reject the second

11 allocator’s report the President may, following the expira12 tion of the moratorium on commencement of litigation,

13 commence an action under section 107.

14 ‘‘(n) NEW INFORMATION.—Any settling party, includ15 ing the United States, may seek from the Administrator a

16 new allocation pursuant to subsection (h), where that party

17 presents to the Administrator clear and convincing infor18 mation or the United States otherwise determines on the

19 basis of clear and convincing information that—

20 ‘‘(1) the allocator did not have information con21 cerning 35 percent or more of the materials contain22 ing hazardous substances at the facility, and that this

23 information has been discovered subsequent to the is24 suance of the allocator’s report; or
428

•S 1834 RCS1S

1 ‘‘(2) the allocator did not have information con2 cerning a person not subject to the allocation who

3 contributed 15 percent or more of materials contain4 ing hazardous substances at the facility, and that this

5 information has been discovered subsequent to the is6 suance of the allocator’s report.

7 Amendments to the allocator’s report may be made with the

8 written consent of all the allocation parties and of the Ad9 ministrator. Determinations by the United States pursuant

10 to this subsection shall not be subject to judicial review.

11 ‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—

12 ‘‘(1) OBLIGATIONS OF THE UNITED STATES.—If,

13 within 90 days after issuance of the latest allocator’s

14 report required under this section, an allocation

15 party—

16 ‘‘(A) makes a written offer to settle with re17 spect to the response action involved based on the

18 share specified by the allocator and on the addi19 tional terms and conditions of settlement (other

20 than the percentage share of liability) that are

21 acceptable to the President; and

22 ‘‘(B) fully complied with any information

23 requests under this Act;

24 the President shall not seek a higher share of response

25 costs other than the premiums authorized by this sec-
429

•S 1834 RCS1S

1 tion, unless the President has rejected the offer on a

2 basis other than the percentage share of liability, or

3 unless the Administrator and the Attorney General

4 have rejected the allocator’s report pursuant to sub5 section (l).

6 ‘‘(2) EXPLANATION OF REFUSAL TO SETTLE.—If

7 the Administrator and the Attorney General deter8 mine not to settle on the basis of the allocation, they

9 shall provide the allocation parties and members of

10 the community with a written explanation of their

11 determination.

12 ‘‘(3) SETTLEMENT PROVISIONS.—Settlements

13 based on allocated shares shall include each of the fol14 lowing:

15 ‘‘(A) A waiver of contribution rights

16 against all parties who are potentially respon17 sible parties for the response action addressed by

18 the settlement, as well as a waiver of any rights

19 to challenge any settlement the President enters

20 into with any other potentially responsible party

21 regarding the response action addressed by the

22 settlement.

23 ‘‘(B) Covenants not to sue, in accordance

24 with section 122(f), and provisions regarding

25 performance or adequate assurance of perform-
430

•S 1834 RCS1S

1 ance of response actions addressed in the settle2 ment.

3 ‘‘(C) A premium determined on a site-spe4 cific basis and subject to the limitations set forth

5 in paragraph (4), that compensates for the liti6 gation risk of the United States with respect to

7 potentially responsible parties who have not re8 solved their liability under this Act to the United

9 States, except that no such premium shall apply

10 if all parties settle or the settlement covers 100

11 percent of response costs.

12 ‘‘(D) Contribution protection, in accordance

13 with section 113(f), regarding matters addressed

14 in the settlement, which settlement does not dis15 charge any of the other potentially responsible

16 parties unless its terms so provide, but reduces

17 the potential liability of the other parties by the

18 amount of the settlement.

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 premiums required by the

24 settlement, which right to reimbursement shall

25 not be contingent on the recovery by the United
431

•S 1834 RCS1S

1 States of response costs from any responsible per2 son not a party to any settlement with the Unit3 ed States under this Act.

4 ‘‘(F) A commitment that the United States

5 shall pay for the orphan share, if any, backed by

6 the full faith and credit of the United States.

7 ‘‘(4) LIMITS ON PREMIUMS.—The premiums au8 thorized by paragraph (3)(C) for litigation risk shall

9 not exceed the following:

10 ‘‘(A) Five percent of the total costs assumed

11 by a settling party, where settlements (and any

12 orphan share identified by the allocator) account

13 for 80 percent or more of responsibility at the fa14 cility.

15 ‘‘(B) Ten percent of the total costs assumed

16 by a settling party, where settlements (and any

17 orphan share identified by the allocator) account

18 for more than 60 percent and less than 80 per19 cent of responsibility at the facility.

20 ‘‘(C) Fifteen percent of the total costs as21 sumed by a settling party, where settlements

22 (and any orphan share identified by the allo23 cator) account for more than 40 percent and less

24 than 60 percent of responsibility at the facility.
432

•S 1834 RCS1S

1 ‘‘(D) Twenty percent of the total costs as2 sumed by a settling party, where settlements

3 (and any orphan share identified by the allo4 cator) account for 40 percent or less of respon5 sibility at the facility.

6 The Administrator shall have authority to promulgate

7 rules to modify the premium percentages established

8 in this subsection. The Administrator may not pro9 pose such a rule before the date 36 months after the

10 date of enactment of this section, and no such rule

11 may take effect before the date 48 months after the

12 date of enactment of this section. Such rule shall be

13 based upon an administrative record establishing that

14 such modification is necessary to reflect actual experi15 ence regarding the litigation risk faced by the United

16 States in proceeding against nonsettling parties

17 under this section.

18 ‘‘(5) AUTHORIZATION OF REIMBURSEMENT.—In

19 any settlement in which a party agrees to perform re20 sponse work in excess of its share, the Administrator

21 shall have authority to reimburse such settling party

22 under this section pursuant to such reasonable proce23 dures as the Administrator may prescribe.

24 ‘‘(6) FINANCIAL CONTROLS ON REIMBURSE25 MENT.—The Administrator shall require all claims
433

•S 1834 RCS1S

1 for reimbursement under this section to be supported

2 by—

3 ‘‘(A) documentation of actual costs in4 curred; and

5 ‘‘(B) sufficient information to enable the

6 Administrator to determine whether such costs

7 were reasonable, necessary, and consistent with

8 the national contingency plan.

9 The Administrator may require independent auditing

10 of any such claim for reimbursement and may require

11 other information to support such auditing by the

12 independent auditor.

13 ‘‘(7) SETTLEMENTS WITH SMALL BUSINESS PAR14 TIES.—Section 122(g)(1)(D)(ii) shall apply to a

15 small business allocation party that makes a written

16 offer to settle pursuant to paragraph (1)(A) and that

17 the President determines has an inability or a limited

18 ability to pay the allocated share of the party.

19 ‘‘(p) POST-SETTLEMENT LITIGATION.—

20 ‘‘(1) IN GENERAL.—The United States may com21 mence an action under section 107 against any per22 son liable under that section that has not resolved

23 such liability to the United States following an allo24 cation, on or after 90 days following issuance of the

25 latest allocator’s report required under this section. In
434

•S 1834 RCS1S

1 any such action, such person shall be subject to liabil2 ity in accordance with section 107 for all response

3 costs at the facility involved not recovered through set4 tlements with other persons. Such recoverable costs

5 shall include any federally funded orphan share iden6 tified in accordance with subsection (h), but shall not

7 include any shares allocated to Federal, State, or

8 local governmental agencies, departments, or instru9 mentalities because of their liability under section

10 107. Defendants in any such action may implead

11 only allocation parties who did not resolve their li12 ability under this Act to the United States. The Ad13 ministrator and the Attorney General shall issue

14 guidelines to ensure that the relief sought against de

15 minimis parties under principles of joint and several

16 liability will not be grossly disproportionate to their

17 contribution to the facility. The application of such

18 guidelines is committed to the discretion of the Ad19 ministrator and the Attorney General.

20 ‘‘(2) CERTIFICATION.—In commencing any ac21 tion under section 107 following allocation, the Attor22 ney General shall certify, in the complaint, that the

23 United States has been unable to reach a settlement

24 with the defendant that would be in the best interests
435

•S 1834 RCS1S

1 of the United States. This certification shall not be

2 subject to judicial review.

3 ‘‘(3) DEFENDANTS.—For response costs for which

4 an allocation has been completed under this section,

5 no person may commence an action under section 107

6 or otherwise seek contribution against any person who

7 was not identified as an allocation party pursuant to

8 subsection (c)(6)(A)(i) or subsequently identified as a

9 potentially liable party under subsection (n) (relating

10 to new information).

11 ‘‘(4) ADMISSIBILITY OF ALLOCATOR’S REPORT.—

12 The allocator’s report shall not be admissible in any

13 court for any purpose, except as set forth in this sec14 tion. The allocator’s report, subject to the rules and

15 discretion of the court, may be admissible solely for

16 the purpose of assisting the court in making an equi17 table allocation of response costs among the relative

18 shares of nonsettling liable parties.

19 ‘‘(5) COSTS OF ALLOCATION PROCEDURE.—

20 ‘‘(A) INCLUDED AS COSTS OF RESPONSE.—

21 The costs of implementing the allocation process

22 set forth in this section, including reasonable fees

23 and expenses of the allocator, shall be considered

24 necessary costs of response for purposes of this

25 Act.
436

•S 1834 RCS1S

1 ‘‘(B) ORPHAN SHARE.—The amount of or2 phan shares identified by the allocator pursuant

3 to subsection (e)(4) shall be considered necessary

4 costs of response for purposes of this Act, and

5 shall be recoverable from liable parties who do

6 not resolve their liability under this Act on the

7 basis of the allocation.

8 ‘‘(6) REJECTION OF SHARE DETERMINATION.—

9 In any action by the United States under this title,

10 if the United States has rejected an offer of settlement

11 that is consistent with subsection (o)(1)(A) and that

12 was presented to the United States prior to the com13 mencement of the action, the offeror shall be entitled

14 to recover from the United States the offeror’s reason15 able costs of defending the action after the making of

16 the offer (including reasonable attorneys’ fees) if the

17 ultimate resolution of liability or allocation of costs

18 with respect to the offeror (taking into account all set19 tlements and reimbursements with respect to the facil20 ity other than those attributable to insurance or in21 demnification), is as, or more, favorable to the offeror

22 than the offer based on the allocation involved.

23 ‘‘(q) REIMBURSEMENT FOR UNILATERAL ADMINISTRA24 TIVE ORDER PERFORMANCE.—
437

•S 1834 RCS1S

1 ‘‘(1) REIMBURSEMENT.—Parties who satisfac2 torily perform work under an administrative order

3 issued under section 106(a) with respect to a remedial

4 action for which an allocation is required by sub5 section (a)(1), shall be entitled to reimbursement for

6 the reasonable and necessary costs of work they per7 form that is consistent with the national contingency

8 plan and is in excess of the share assigned to them

9 in the allocation in accordance with the provisions of

10 this section, if the allocator’s report is not rejected by

11 the United States and, at the end of the moratorium

12 following the allocation, the performing party, in con13 sideration of such reimbursement—

14 ‘‘(A) agrees not to contest liability for all

15 response costs not inconsistent with the national

16 contingency plan to the extent of the allocated

17 share;

18 ‘‘(B) receives no covenant not to sue;

19 ‘‘(C) agrees that its reimbursement shall be

20 reduced by an amount equal to the maximum

21 litigation risk premium provided for in sub22 section (o)(4) based on the total allocated shares

23 of the allocation parties who have not reached

24 settlements with the United States by the end of
438

•S 1834 RCS1S

1 the moratorium on commencement of actions

2 provided in subsection (b); and

3 ‘‘(D) waives contribution rights against all

4 parties who are potentially responsible parties

5 for the remedial action, as well as waives any

6 rights to challenge any settlement the President

7 enters into with any other such potentially re8 sponsible party.

9 ‘‘(2) OFFSET.—Any and all reimbursement pro10 vided to such a performing party for such work in ex11 cess of its share is subject to equitable offset or reduc12 tion by the Administrator upon a finding of a failure

13 to perform any aspect of the remedy in a proper and

14 timely manner.

15 ‘‘(3) TIME OF PAYMENT.—Any and all reim16 bursement to such a performing party for such work

17 in excess of its share shall be paid after the work is

18 completed, but no sooner than completion of the con19 struction of the remedial action.

20 ‘‘(4) LIMIT ON ORPHAN SHARE FUNDING.—The

21 amount of orphan share funding available to the per22 forming party shall be further limited as follows:

23 ‘‘(A) WAIVER OF RIGHT TO CHALLENGE.—

24 A performing party who fully waives the right to

25 challenge remedy selection at the end of the mor-
439

•S 1834 RCS1S

1 atorium following allocation shall be entitled to

2 full reimbursement of reasonable and necessary

3 costs incurred consistent with the national con4 tingency plan in excess of the party’s share and

5 attributable by the allocator to the orphan share

6 paid in nominal dollars after the work is com7 pleted, but no sooner than completion of the con8 struction of the remedial action.

9 ‘‘(B) RETENTION OF RIGHT TO CHAL10 LENGE.—A performing party who retains the

11 right to challenge the remedy shall be reimbursed

12 for reasonable and necessary costs incurred con13 sistent with the national contingency plan that

14 represent 90 percent of orphan share funding,

15 paid in nominal dollars after the work is com16 pleted, but no sooner than completion of the con17 struction of the remedial action, unless the or18 phan share is less than 20 percent of responsibil19 ity at the site, in which case such parties shall

20 be reimbursed only 80 percent of the orphan

21 share.

22 For purposes of this subsection, the term ‘nominal

23 dollars’ means actual dollars spent by the performing

24 party, without increase for interest or inflation.
440

•S 1834 RCS1S

1 ‘‘(5) INTEREST.—Reimbursement for reasonable

2 and necessary costs incurred consistent with the na3 tional contingency plan in excess of the performing

4 party’s allocated share but that is not attributable to

5 the orphan share shall be paid in nominal dollars

6 after the work is completed, but no sooner than com7 pletion of the construction of the remedial action, and

8 the performing party is entitled to all interest (pre9 judgment and postjudgment, whether recovered from a

10 party or earned in a site account) that has accrued

11 on money recovered by the United States from other

12 parties for such work at the time construction of the

13 remedy is completed.

14 ‘‘(6) FINANCIAL CONTROLS ON REIMBURSE15 MENT.—The Administrator shall require that all

16 claims for such reimbursement be supported by—

17 ‘‘(A) documentation of actual costs in18 curred; and

19 ‘‘(B) sufficient information to enable the

20 Administrator to determine whether such costs

21 were reasonable, necessary, and incurred consist22 ent with the national contingency plan.

23 The Administrator may require independent auditing

24 of any such claim for reimbursement and may require
441

•S 1834 RCS1S

1 other information to support such auditing by the

2 independent auditor.

3 ‘‘(r) FUNDING OF ORPHAN SHARES.—

4 ‘‘(1) LIMITATION ON OBLIGATIONS.—For each

5 settlement agreement entered into pursuant to sub6 section (o) that includes an orphan share, the United

7 States shall reimburse the allocation parties, includ8 ing any Federal agency, for costs incurred and equi9 tably attributable to the orphan share. In no case

10 shall the United States enter into obligations for any

11 fiscal year for the sum of the costs, and interest deter12 mined under paragraph (3), totalling in excess of

13 $300,000,000, plus any remaining unobligated bal14 ance of funds made available under paragraph (2)

15 from any previous fiscal year. In no case shall the

16 total obligations for the costs and the interest exceed

17 $1,500,000,000 for the period beginning October 1,

18 1994, and ending September 30, 1999.

19 ‘‘(2) LIMITATION ON APPROPRIATIONS.—Appro20 priations shall be made available to the President

21 from the Fund in an amount not to exceed

22 $300,000,000 for fiscal year 1996 and for each fiscal

23 year thereafter for the payments required by para24 graph (1), to remain available until expended.
442

•S 1834 RCS1S

1 ‘‘(3) REIMBURSEMENT DELAYS.—Notwithstand2 ing section 1341 of title 31, United States Code, any

3 sums found to be due and owing under paragraph (1)

4 in excess of amounts appropriated for a fiscal year

5 for agreements described in such paragraph shall be

6 paid from amounts made available under paragraph

7 (2) for subsequent fiscal years. Such payments shall

8 include interest on the unpaid balance of the sums at

9 a rate equal to the rate of interest on 1-year Treasury

10 bills.

11 ‘‘(4) TERMS AND CONDITIONS.—Reimbursements

12 made under this subsection shall be subject to such

13 terms and conditions as the President may prescribe.

14 ‘‘(s) PROCEDURES.—The Administrator, after con15 sultation with the Attorney General, may promulgate rules

16 (or guidance) of Environmental Protection Agency organi17 zation, procedure, and practices but shall not have addi18 tional authority, except as specifically set forth in this sec19 tion, to promulgate rules or publish guidance to restrict the

20 allocator’s discretion in the conduct of the allocation.

21 ‘‘(t) ROLE OF FEDERAL AGENCIES.—Federal depart22 ments, agencies, or instrumentalities, or their agents, that

23 are identified as potentially responsible parties under this

24 Act shall be subject to, and be entitled to the benefits of,
443

•S 1834 RCS1S

1 the allocation process provided by this section to the same

2 extent as any other party.

3 ‘‘(u) REPRESENTATION OF THE UNITED STATES AND

4 OF A STATE.—The Administrator and the Attorney Gen5 eral, and a State that is exercising authority delegated

6 under section 127, with respect to the facility that is the

7 subject of the allocation process shall be entitled to review

8 all documents related to, and participate in any phase of,

9 the allocation process.

10 ‘‘(v) ANNUAL REPORT.—The President shall report an11 nually to Congress on the administration of the allocation

12 scheme under this section, and provide information com13 paring the allocation results with actual settlements at

14 multiparty facilities.

15 ‘‘(w) SAVINGS PROVISIONS.—Nothing in this section

16 shall in any way limit or affect the President’s authority

17 to exercise the powers conferred by section 103, 104, 105,

18 106, or 122, to commence an action against a party where

19 there is a contemporaneous filing of a judicial consent de20 cree resolving that party’s liability, or to file a proof of

21 claim or take other action in a proceeding under title 11,

22 United States Code. The procedures established in this sec23 tion shall not be construed to modify or affect in any way

24 the principles of retroactive, strict, joint and several liabil-
444

•S 1834 RCS1S

1 ity under this title. Nothing in this section shall limit or

2 affect—

3 ‘‘(1) the Administrator’s obligation to perform

4 an allocation for facilities that have been the subject

5 of partial or expedited settlements;

6 ‘‘(2) the ability of a potentially responsible party

7 at a facility to resolve its liability under this Act to

8 the United States or other parties at any time before

9 initiation or completion of the allocation process;

10 ‘‘(3) the validity, enforceability, finality, or mer11 its of any judicial or administrative order, judgment,

12 or decree that is issued, signed, lodged, or entered

13 with respect to liability under this Act or that author14 izes modification of any such order, judgment, or de15 cree; or

16 ‘‘(4) the validity, enforceability, finality, or mer17 its of any preexisting (as of the date of enactment of

18 this section) contract or agreement relating to any al19 location of responsibility or any sharing of response

20 costs under this Act.

21 ‘‘(x) RESPONSE ACTION CONTRACTOR.—Notwithstand22 ing any provision of this section, any liability of a response

23 action contractor under this Act shall be determined in ac24 cordance with section 119, to the extent such liability arises
445

•S 1834 RCS1S

1 from a person’s activities as a response action contractor

2 at a facility.’’.

3 SEC. 410. CLARIFICATION OF LIABILITY FOR RECYCLING

4 TRANSACTIONS.

5 (a) PURPOSES.—The purposes of this section and the

6 amendments made by this section are—

7 (1) to promote the reuse and recycling of scrap

8 material in furtherance of the goals of waste mini9 mization and natural resource conservation while

10 protecting human health and the environment;

11 (2) to level the playing field between the use of

12 virgin materials and recycled materials; and

13 (3) to remove the disincentives and impediments

14 to recycling because of potential Superfund liability.

15 (b) CLARIFICATION OF LIABILITY UNDER THE COM16 PREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,

17 AND LIABILITY ACT OF 1980 FOR RECYCLING TRANS18 ACTIONS.—Title I (42 U.S.C. 9601 et seq.) (as amended by

19 sections 201 and 409) is further amended by adding at the

20 end the following new section:

21 ‘‘SEC. 130. RECYCLING TRANSACTIONS.

22 ‘‘(a) LIABILITY CLARIFICATION.—As provided in sub23 sections (b), (c), (d), and (e), a person who arranged for

24 the recycling of recyclable material shall not be liable under
446

•S 1834 RCS1S

1 paragraph (3) or (4) of section 107(a) with respect to the

2 material.

3 ‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur4 poses of this section, the term ‘recyclable material’ means

5 scrap paper, scrap plastic, scrap glass, scrap textiles, scrap

6 rubber, scrap metal, and spent lead-acid batteries, spent

7 nickel-cadmium batteries, and other spent batteries, as well

8 as minor amounts of material incident to or adhering to

9 the scrap material as a result of its normal and customary

10 use prior to becoming scrap material.

11 ‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER, PLAS12 TIC, GLASS, TEXTILES, OR RUBBER.—For purposes of this

13 section, a transaction involving scrap paper, scrap plastic,

14 scrap glass, scrap textiles, or scrap rubber shall be consid15 ered to be arranging for the recycling of recyclable material

16 if the person who arranged for the transaction (by selling

17 recyclable material or otherwise arranging for the recycling

18 of recyclable material) can demonstrate by a preponderance

19 of the evidence that all of the following criteria were met

20 at the time of the transaction:

21 ‘‘(1) GRADE.—The recyclable material met a

22 commercial specification grade.

23 ‘‘(2) MARKET.—A market existed for the recycla24 ble material.
447

•S 1834 RCS1S

1 ‘‘(3) FEEDSTOCK.—A substantial portion of the

2 recyclable material was made available for use as a

3 feedstock for the manufacture of a new saleable prod4 uct.

5 ‘‘(4) REPLACEMENT OR SUBSTITUTE.—The recy6 clable material could have been a replacement or sub7 stitute for a virgin raw material, or the product to

8 be made from the recyclable material could have been

9 a replacement or substitute for a product made, in

10 whole or in part, from a virgin raw material.

11 ‘‘(5) CONSUMING FACILITY.—In the case of a

12 transaction occurring 90 days or more after the date

13 of enactment of this section, the person exercised rea14 sonable care to determine that the facility where the

15 recyclable material would be handled, processed, re16 claimed, or otherwise managed by another person (re17 ferred to in this section as a ‘consuming facility’) was

18 in compliance with substantive (not procedural or ad19 ministrative) provisions of each Federal, State, or

20 local environmental law or regulation, or compliance

21 order or decree issued pursuant thereto, applicable to

22 the handling, processing, reclamation, storage, or

23 other management activities associated with the recy24 clable material. For purposes of this paragraph, ‘rea-
448

•S 1834 RCS1S

1 sonable care’ shall be determined using criteria that

2 include—

3 ‘‘(A) the price paid in the recycling trans4 action;

5 ‘‘(B) the ability of the person to detect the

6 nature of the consuming facility’s operations

7 concerning its handling, processing, reclamation,

8 storage, or other management activities associ9 ated with the recyclable material; and

10 ‘‘(C) the result of inquiries made to the ap11 propriate Federal, State, or local environmental

12 agency (or agencies) regarding the consuming fa13 cility’s past and current compliance with sub14 stantive (not procedural or administrative) pro15 visions of any Federal, State, or local environ16 mental law or regulation, or compliance order or

17 decree issued pursuant thereto, applicable to the

18 handling, processing, reclamation, storage, or

19 other management activities associated with the

20 recyclable material.

21 For the purposes of this paragraph, a requirement to

22 obtain a permit applicable to the handling, process23 ing, reclamation, storage, or other management activ24 ity associated with the recyclable materials shall be

25 considered to be a substantive provision.
449

•S 1834 RCS1S

1 ‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—

2 ‘‘(1) ARRANGING FOR THE RECYCLING OF RECY3 CLABLE MATERIAL.—For purposes of this section, a

4 transaction involving scrap metal shall be considered

5 to be arranging for the recycling of recyclable mate6 rial if the person who arranged for the transaction

7 (by selling recyclable material or otherwise arranging

8 for the recycling of recyclable material) can dem9 onstrate by a preponderance of the evidence that at

10 the time of the transaction—

11 ‘‘(A) the person met the criteria set forth in

12 subsection (c) with respect to the scrap metal;

13 ‘‘(B) the person was in compliance with the

14 applicable regulations or standards regarding

15 the storage, transport, management, or other ac16 tivities associated with the recycling of scrap

17 metal that the Administrator promulgates under

18 the Solid Waste Disposal Act (42 U.S.C. 6901 et

19 seq.) subsequent to the date of enactment of this

20 section and with regard to transactions occur21 ring after the effective date of such regulations or

22 standards; and

23 ‘‘(C) the person did not melt the scrap

24 metal prior to the transaction.
450

•S 1834 RCS1S

1 ‘‘(2) MELT.—For purposes of paragraph (1)(C),

2 the term ‘melt’, used with respect to scrap metal, does

3 not include the thermal separation of 2 or more mate4 rials due to differences in their melting points (re5 ferred to as ‘sweating’).

6 ‘‘(3) SCRAP METAL.—For purposes of this sub7 section, the term ‘scrap metal’ means bits and pieces

8 of metal parts (such as bars, turnings, rods, sheets,

9 and wire) or metal pieces that may be combined to10 gether with bolts or soldering (such as radiators,

11 scrap automobiles, and railroad boxcars) that when

12 worn or superfluous can be recycled, except for—

13 ‘‘(A) scrap metals that the Administrator

14 excludes from this definition by regulation; and

15 ‘‘(B) steel shipping containers of capacities

16 of not less than 30 liters and not more than 3000

17 liters, whether intact or not, having any hazard18 ous substances (but not metal bits or pieces) con19 tained in or adhering thereto.

20 ‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—For pur21 poses of this section, a transaction involving spent lead-acid

22 batteries, spent nickel-cadmium batteries, or other spent

23 batteries shall be considered to be arranging for the recy24 cling of recyclable material if the person who arranged for

25 the transaction (by selling recyclable material or otherwise
451

•S 1834 RCS1S

1 arranging for the recycling of recyclable material) dem2 onstrates by a preponderance of the evidence that at the

3 time of the transaction—

4 ‘‘(1) the person met the criteria set forth in sub5 section (c) with respect to the spent lead-acid bat6 teries, spent nickel-cadmium batteries, or other spent

7 batteries but did not recover the valuable components

8 of such batteries; and

9 ‘‘(2)(A) with respect to a transaction involving

10 lead-acid batteries, the person was in compliance with

11 applicable Federal environmental regulations or

12 standards regarding the storage, transport, manage13 ment, or other activities associated with the recycling

14 of spent lead-acid batteries;

15 ‘‘(B) with respect to transactions involving nick16 el-cadmium batteries, Federal environmental regula17 tions or standards are in effect regarding the storage,

18 transport, management, or other activities associated

19 with the recycling of spent nickel-cadmium batteries,

20 and the person was in compliance with such regula21 tions or standards that are applicable; or

22 ‘‘(C) with respect to transactions involving other

23 spent batteries, Federal environmental regulations or

24 standards are in effect regarding the storage, trans25 port, management, or other activities associated with
452

•S 1834 RCS1S

1 the recycling of such batteries, and the person was in

2 compliance with such regulations or standards that

3 are applicable.

4 ‘‘(f) EXCLUSIONS.—

5 ‘‘(1) IN GENERAL.—The exemptions set forth in

6 subsections (c), (d), and (e) shall not apply if—

7 ‘‘(A) the person had an objectively reason8 able basis to believe at the time of the recycling

9 transaction—

10 ‘‘(i) that the recyclable material would

11 not be recycled;

12 ‘‘(ii) that the recyclable material would

13 be burned as fuel, or for energy recovery or

14 incineration; or

15 ‘‘(iii) for transactions occurring dur16 ing the 90-day period beginning on the date

17 of enactment of this section, that the con18 suming facility was not in compliance with

19 a substantive (not a procedural or adminis20 trative) provision of any Federal, State, or

21 local environmental law or regulation, or

22 compliance order or decree issued pursuant

23 thereto, applicable to the handling, process24 ing, reclamation, storage, or other manage-
453

•S 1834 RCS1S

1 ment activities associated with the recycla2 ble material;

3 ‘‘(B) the person added hazardous substances

4 into the recyclable material for purposes other

5 than processing for recycling; or

6 ‘‘(C) the person failed to exercise reasonable

7 care with respect to the management and han8 dling of the recyclable material.

9 ‘‘(2) BASIS FOR BELIEF.—For purposes of this

10 subsection, an objectively reasonable basis for belief

11 shall be determined using criteria that includes the

12 size of the person’s business, customary industry prac13 tices, the price paid in the recycling transaction, and

14 the ability of the person to detect the nature of the

15 consuming facility’s operations concerning its han16 dling, processing, reclamation, storage, or other man17 agement activities associated with the recyclable ma18 terial.

19 ‘‘(3) REQUIREMENT.—For purposes of this sub20 section, a requirement to obtain a permit applicable

21 to the handling, processing, reclamation, storage, or

22 other management activities associated with recycla23 ble material shall be considered to be a substantive

24 provision.
454

•S 1834 RCS1S

1 ‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing in this

2 section shall be considered to affect the liability of a person

3 under paragraph (1) or (2) of section 107(a).

4 ‘‘(h) POLYCHLORINATED BIPHENYLS.—An exemption

5 under this section shall not apply if the recyclable material

6 contained polychlorinated biphenyls in excess of 50 parts

7 per million or any new standard promulgated after the date

8 of enactment of this section pursuant to applicable Federal

9 laws.

10 ‘‘(i) REGULATIONS.—The Administrator shall have the

11 authority, under section 115, to promulgate additional reg12 ulations concerning this section.

13 ‘‘(j) EFFECT ON PENDING OR CONCLUDED ACTIONS.—

14 The exemptions provided in this section for a party shall

15 not affect any judicial or administrative action that is con16 cluded with respect to the party prior to February 3, 1994,

17 or any pending (as of the date of enactment of this section)

18 judicial action initiated prior to February 3, 1994. The ex19 emptions provided in this section shall not be available with

20 respect to a facility if a potentially responsible party whose

21 liability at the facility based on paragraph (3) or (4) of

22 section 107(a) has resolved the liability with the United

23 States prior to February 3, 1994.

24 ‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR CERTAIN

25 ACTIONS.—Any person who commences an action in con-
455

•S 1834 RCS1S

1 tribution against a person who is not liable by operation

2 of this section shall be liable to that person for all reasonable

3 costs of defending that action, including all reasonable at4 torney’s and expert witness fees.

5 ‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER

6 LAWS.—Nothing in this section shall affect—

7 ‘‘(1) liability under any other Federal, State, or

8 local statute or regulation promulgated pursuant to

9 any such statute, including any requirements promul10 gated by the Administrator under the Solid Waste

11 Disposal Act (42 U.S.C. 6901 et seq.); or

12 ‘‘(2) the ability of the Administrator to promul13 gate regulations under any other statute, including

14 the Solid Waste Disposal Act.’’.

15 SEC. 411. LENDER AND FIDUCIARY LIABILITY.

16 (a) CERCLA AMENDMENT.—Title I (42 U.S.C. 9601

17 et seq.) (as amended by sections 201, 409, and 410(b)) is

18 further amended by adding at the end the following new

19 sections:

20 ‘‘SEC. 131. INSURED DEPOSITORY INSTITUTION AND OTHER

21 LENDER LIABILITY.

22 ‘‘(a) LIABILITY LIMITATIONS.—The liability of an in23 sured depository institution or other lender that is liable

24 under any other provision of this Act for the release or
456

•S 1834 RCS1S

1 threatened release of a hazardous substance at, from, or in

2 connection with property—

3 ‘‘(1) acquired through foreclosure;

4 ‘‘(2) subject to a security interest held by such

5 institution or lender;

6 ‘‘(3) held by a lessor pursuant to the terms of an

7 extension of credit; or

8 ‘‘(4) subject to financial control or financial

9 oversight pursuant to the terms of an extension of

10 credit;

11 shall be limited to the actual benefit conferred on such insti12 tution or lender by a removal, remedial, or other response

13 action undertaken by another party.

14 ‘‘(b) ACTUAL BENEFIT.—For purposes of this section,

15 the actual benefit conferred on an institution or lender by

16 a removal, remedial, or other response action shall be equal

17 to the net gain, if any, realized by such institution or lender

18 due to such action. For purposes of this subsection, the ‘net

19 gain’ shall not exceed the amount realized by the institution

20 or lender on the sale of property less acquisition, holding,

21 and disposition costs.

22 ‘‘(c) EXCLUSION.—Notwithstanding subsection (a), but

23 subject to the provisions of section 107(d), a depository in24 stitution or lender that caused or contributed to the release
457

•S 1834 RCS1S

1 of a hazardous substance may be liable for a response action

2 pertaining to that release.

3 ‘‘(d) ENVIRONMENTAL ASSESSMENTS.—

4 ‘‘(1) DEPOSITORY INSTITUTIONS.—The Adminis5 trator, in consultation with the Secretary of the

6 Treasury, shall issue and publish guidelines for in7 sured depository institutions and other lenders to de8 velop and implement adequate procedures to evaluate

9 actual and potential environmental risks that may

10 arise from or at property prior to making an exten11 sion of credit secured by such property. The require12 ments may provide for exclusions or different types of

13 environmental assessments as may be appropriate

14 under the circumstances in order to account for the

15 levels of risk that may be posed by different classes of

16 collateral. Each Federal agency having the authority

17 under Federal law to make an examination of an in18 sured depository institution shall take compliance

19 with the guidelines into account in performing such

20 examinations.

21 ‘‘(2) FINAL GUIDELINES.—Final guidelines re22 quired to be issued pursuant to paragraph (1) shall

23 be issued not later than 180 days after the date of en24 actment of this section.
458

•S 1834 RCS1S

1 ‘‘(e) DEFINITIONS.—For purposes of this section, the

2 following definitions shall apply:

3 ‘‘(1) PROPERTY ACQUIRED THROUGH FORE4 CLOSURE.—

5 ‘‘(A) IN GENERAL.—The term ‘property ac6 quired through foreclosure’ means property ac7 quired, or the act of acquiring property, from a

8 nonaffiliated party by an insured depository in9 stitution or other lender—

10 ‘‘(i) through purchase at sales under

11 judgment or decree, power of sales,

12 nonjudicial foreclosure sales, or from a

13 trustee, deed in lieu of foreclosure, or simi14 lar conveyance, or through repossession, if

15 such property was security for an extension

16 of credit previously contracted;

17 ‘‘(ii) through conveyance pursuant to

18 an extension of credit previously contracted,

19 including the termination of a lease agree20 ment; or

21 ‘‘(iii) through any other formal or in22 formal manner by which the insured deposi23 tory institution or other lender temporarily

24 acquires, for subsequent disposition, posses-
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•S 1834 RCS1S

1 sion of collateral in order to protect its in2 terest.

3 ‘‘(B) EXCLUSION.—Property is not acquired

4 through foreclosure if the insured depository in5 stitution or lender does not seek to sell or other6 wise divest such property at the earliest prac7 tical, commercially reasonable time, on commer8 cially reasonable terms, taking into account

9 market conditions and legal and regulatory re10 quirements.

11 ‘‘(2) LENDER.—The term ‘lender’ means—

12 ‘‘(A) a person (other than an insured depos13 itory institution) that—

14 ‘‘(i) makes a bona fide extension of

15 credit to or takes a security interest from a

16 nonaffiliated party; and

17 ‘‘(ii) substantially and materially com18 plies with the environmental assessment re19 quirements imposed under subsection (d),

20 after final guidelines under that subsection

21 have been issued;

22 and includes a successor or assign of any such

23 person;

24 ‘‘(B) the Federal National Mortgage Asso25 ciation, the Federal Home Loan Mortgage Cor-
460

•S 1834 RCS1S

1 poration, the Federal Agricultural Mortgage Cor2 poration, or other entity that in a bona fide

3 manner is engaged in the business of buying or

4 selling loans or interests therein, if such Associa5 tion, Corporation, or entity requires institutions

6 from which it purchases loans (or other obliga7 tions) to comply substantially and materially

8 with the requirements of subsection (d), after

9 final guidelines under that subsection have been

10 issued;

11 ‘‘(C) any person engaged in the business of

12 insuring or guaranteeing against a default in

13 the repayment of an extension of credit, or act14 ing as a surety with respect to an extension of

15 credit, to nonaffiliated parties; and

16 ‘‘(D) any person regularly engaged in the

17 business of providing title insurance who ac18 quires the property as a result of assignment or

19 conveyance in the course of underwriting claims

20 and claims settlement.

21 ‘‘(3) EXTENSION OF CREDIT.—The term ‘exten22 sion of credit’ includes a lease finance transaction—

23 ‘‘(A) in which the lessor does not initially

24 select the leased property and does not during the
461

•S 1834 RCS1S

1 lease term control the daily operations or main2 tenance of the property; or

3 ‘‘(B) that conforms with regulations issued

4 by the appropriate Federal banking agency (as

5 defined in section 3 of the Federal Deposit Insur6 ance Act (12 U.S.C. 1813)) or the appropriate

7 State banking regulatory authority.

8 ‘‘(4) INSURED DEPOSITORY INSTITUTION.—The

9 term ‘insured depository institution’ has the same

10 meaning as in section 3(c) of the Federal Deposit In11 surance Act (12 U.S.C. 1813(c)), and shall also in12 clude—

13 ‘‘(A) an insured credit union, as defined in

14 section 101 of the Federal Credit Union Act (12

15 U.S.C. 1752);

16 ‘‘(B) a bank or association chartered under

17 the Farm Credit Act of 1971 (12 U.S.C. 2001 et

18 seq.); and

19 ‘‘(C) a leasing or trust company that is an

20 affiliate of an insured depository institution (as

21 such term is defined in this paragraph).

22 ‘‘(5) SECURITY INTEREST.—The term ‘security

23 interest’ includes rights under a mortgage, deed of

24 trust, assignment, judgment lien, pledge, security

25 agreement, factoring agreement, lease, or any other
462

•S 1834 RCS1S

1 right accruing to a person to secure the repayment of

2 money, the performance of a duty, or some other obli3 gation.

4 ‘‘(f) SAVINGS CLAUSE.—Nothing in this section

5 shall—

6 ‘‘(1) affect the rights or immunities or other de7 fenses that are available under this Act or other ap8 plicable law to any party subject to the provisions of

9 this section;

10 ‘‘(2) be construed to create any liability for any

11 party; or

12 ‘‘(3) create a private right of action against an

13 insured depository institution or lender or against

14 any Federal agency that regulates an insured deposi15 tory institution or other lender.

16 ‘‘SEC. 132. LIABILITY OF FIDUCIARIES.

17 ‘‘(a) IN GENERAL.—The liability of a fiduciary that

18 is liable under any other provision of this Act for the release

19 or threatened release of a hazardous substance at, from, or

20 in connection with property held in a fiduciary capacity,

21 may not exceed the assets held in such fiduciary capacity

22 that are available to indemnify the fiduciary.

23 ‘‘(b) EXCLUSION.—Subsection (a) does not apply to the

24 extent that a person is liable under this Act independent
463

•S 1834 RCS1S

1 of such person’s ownership or actions taken in a fiduciary

2 capacity.

3 ‘‘(c) LIMITATION.—Notwithstanding subsections (a)

4 and (d), a fiduciary whose failure to exercise due care

5 caused or contributed to the release of a hazardous substance

6 may have liability in its personal capacity for a response

7 action pertaining to that release.

8 ‘‘(d) SAFE HARBOR.—A fiduciary shall not be liable

9 in its personal capacity under this Act for—

10 ‘‘(1) undertaking or directing another to under11 take a response action under section 107(d)(1) or

12 under the direction of an on-scene coordinator;

13 ‘‘(2) undertaking or directing another to

14 undertake any other lawful means of addressing haz15 ardous substances in connection with the property;

16 ‘‘(3) terminating the fiduciary relationship;

17 ‘‘(4) including in the terms of the fiduciary

18 agreement covenants, warranties, or other terms and

19 conditions that relate to compliance with environ20 mental laws, or monitoring or enforcing such terms;

21 ‘‘(5) monitoring or undertaking 1 or more in22 spections of the property;

23 ‘‘(6) providing financial or other advice or coun24 seling to other parties to the fiduciary relationship,

25 including the settler or beneficiary;
464

•S 1834 RCS1S

1 ‘‘(7) restructuring, renegotiating, or otherwise al2 tering the terms and conditions of the fiduciary rela3 tionship; or

4 ‘‘(8) declining to take any of the actions de5 scribed in paragraphs (2) through (7).

6 ‘‘(e) DEFINITIONS.—For purposes of this section, the

7 following definitions shall apply:

8 ‘‘(1) FIDUCIARY.—The term ‘fiduciary’—

9 ‘‘(A) means a person acting for the benefit

10 of another party as a bona fide—

11 ‘‘(i) trustee;

12 ‘‘(ii) executor;

13 ‘‘(iii) administrator;

14 ‘‘(iv) custodian;

15 ‘‘(v) guardian of estates or guardian

16 ad litem;

17 ‘‘(vi) receiver;

18 ‘‘(vii) conservator;

19 ‘‘(viii) committee of estates of lunatics

20 or other disabled persons;

21 ‘‘(ix) personal representative; or

22 ‘‘(x) representative in any other capac23 ity that the Administrator, pursuant to

24 public notice, determines to be similar to

25 those listed in clauses (i) through (ix); and
465

•S 1834 RCS1S

1 ‘‘(B) does not include any person who is

2 acting as a fiduciary with respect to a trust or

3 other fiduciary estate that—

4 ‘‘(i) was not created as part of, or to

5 facilitate, 1 or more estate plans or pursu6 ant to the incapacity of a natural person;

7 and

8 ‘‘(ii) was organized for the primary

9 purpose of, or is engaged in, actively carry10 ing on a trade or business for profit.

11 ‘‘(2) FIDUCIARY CAPACITY.—A person acts in a

12 ‘fiduciary capacity’ with respect to property if the

13 person holds title to such property, or otherwise has

14 control of or an interest in such property, pursuant

15 to the exercise of such person’s responsibilities as a fi16 duciary.

17 ‘‘(3) FEDERAL B ANKING OR LENDING AGENCY.—

18 The term ‘Federal banking or lending agency’ has the

19 same meaning as in section 44 of the Federal Deposit

20 Insurance Act.

21 ‘‘(f) SAVINGS CLAUSE.—Nothing in this section shall

22 affect the rights or immunities or other defenses that are

23 available under this Act or other applicable law to any per24 son subject to the provisions of this section. Nothing in this

25 section shall create any liability for any party. Nothing in
466

•S 1834 RCS1S

1 this section shall create a private right of action against

2 a fiduciary or any other party.

3 ‘‘(g) INAPPLICABILITY TO FEDERAL BANKING AND

4 LENDING AGENCIES.—Nothing in this section shall be con5 strued to apply to a Federal banking or lending agency.

6 ‘‘(h) NO EFFECT ON CERTAIN PERSONS.—Nothing in

7 this section shall be construed to affect the liability, if any,

8 of a person who—

9 ‘‘(1)(A) acts in a capacity other than a fiduciary

10 capacity; and

11 ‘‘(B) directly or indirectly benefits from a trust

12 or fiduciary relationship; or

13 ‘‘(2) who—

14 ‘‘(A) is a beneficiary and a fiduciary with

15 respect to the same fiduciary estate; and

16 ‘‘(B) as a fiduciary, receives benefits that

17 exceed customary or reasonable compensation,

18 and incidental benefits, permitted under other

19 applicable law.

20 ‘‘(i) REGULATORY AUTHORITY.—The Administrator

21 may promulgate regulations to implement this section.’’.

22 (b) FEDERAL DEPOSIT INSURANCE ACT AMEND23 MENT.—The Federal Deposit Insurance Act (12 U.S.C.

24 1811 et seq.) is amended by adding at the end the following

25 new section:
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1 ‘‘SEC. 44. FEDERAL BANKING AND LENDING AGENCY LI2 ABILITY.

3 ‘‘(a) GOVERNMENTAL ENTITIES.—

4 ‘‘(1) BANKING AND LENDING AGENCIES.—Except

5 as provided in paragraph (3), a Federal banking or

6 lending agency shall not be liable under any law im7 posing strict liability for the release or threatened re8 lease of a hazardous substance at or from property

9 (including any right or interest therein) acquired—

10 ‘‘(A) in connection with the exercise of re11 ceivership or conservatorship authority, or the

12 liquidation or winding up of the affairs of an

13 insured depository institution, including any of

14 its subsidiaries;

15 ‘‘(B) in connection with the provision of

16 loans, discounts, advances, guarantees, insurance

17 or other financial assistance; or

18 ‘‘(C) in connection with property received

19 in any civil or criminal proceeding, or adminis20 trative enforcement action, whether by settlement

21 or order.

22 ‘‘(2) APPLICATION OF STATE LAW.—Nothing in

23 this section shall be construed as preempting, affect24 ing, applying to, or modifying any State law, or any

25 rights, actions, cause of action, or obligations under

26 State law, except that liability under State law shall
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•S 1834 RCS1S

1 not exceed the value of the agency’s interest in the

2 asset giving rise to such liability. Nothing in this sec3 tion shall be construed to prevent a Federal banking

4 or lending agency from agreeing with a State to

5 transfer property to such State in lieu of any liability

6 that might otherwise be imposed under State law.

7 ‘‘(3) LIMITATION.—Notwithstanding paragraph

8 (1), and subject to section 107(d) of the Comprehen9 sive Environmental Response, Compensation, and Li10 ability Act of 1980, a Federal banking or lending

11 agency that caused or contributed to the release of a

12 hazardous substance may be liable for removal, reme13 dial, or other response action pertaining to that re14 lease.

15 ‘‘(4) SUBSEQUENT PURCHASER.—The immunity

16 provided by paragraph (1) shall extend to the first

17 subsequent purchaser of property described in such

18 paragraph from a Federal banking or lending agency,

19 unless such purchaser—

20 ‘‘(A) would otherwise be liable or poten21 tially liable for all or part of the costs of the re22 moval, remedial, or other response action due to

23 a prior relationship with the property;

24 ‘‘(B) is or was affiliated with or related to

25 a party described in subparagraph (A);
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1 ‘‘(C) fails to agree to take reasonable steps

2 necessary to remedy the release or threatened re3 lease or to protect public health and safety in a

4 manner consistent with the purposes of applica5 ble environmental laws; or

6 ‘‘(D) causes or contributes to any additional

7 release or threatened release on the property.

8 ‘‘(5) FEDERAL OR STATE ACTION.—Notwith9 standing paragraph (4), if a Federal agency or State

10 environmental agency is required to take remedial ac11 tion due to the failure of a subsequent purchaser to

12 carry out, in good faith, the agreement described in

13 paragraph (4)(C), such subsequent purchaser shall re14 imburse the Federal or State environmental agency

15 for the costs of such remedial action. Any such reim16 bursement shall not exceed the increase in the fair

17 market value of the property attributable to the reme18 dial action.

19 ‘‘(b) LIEN EXEMPTION.—Notwithstanding any other

20 provision of law, any property held by a subsequent pur21 chaser referred to in subsection (a)(4) or held by a Federal

22 banking or lending agency shall not be subject to any lien

23 for costs or damages associated with the release or threat24 ened release of a hazardous substance existing at the time

25 of the transfer.
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1 ‘‘(c) EXEMPTION FROM COVENANTS TO REMEDIATE.—

2 A Federal banking or lending agency shall be exempt from

3 any law requiring such agency to grant covenants warrant4 ing that a removal, remedial, or other response action has

5 been, or will in the future be, taken with respect to property

6 acquired in the manner described in subsection (a)(1).

7 ‘‘(d) DEFINITIONS.—For purposes of this section, the

8 following definitions shall apply:

9 ‘‘(1) FEDERAL BANKING OR LENDING AGENCY.—

10 The term ‘Federal banking or lending agency’ means

11 the Corporation, the Resolution Trust Corporation,

12 the Board of Governors of the Federal Reserve System,

13 the Comptroller of the Currency, the Office of Thrift

14 Supervision, a Federal Reserve Bank, a Federal

15 Home Loan Bank, the Department of Housing and

16 Urban Development, the National Credit Union Ad17 ministration Board, the Farm Credit Administration,

18 the Farm Credit System Insurance Corporation, the

19 Farm Credit System Assistance Board, the Farmers

20 Home Administration, the Rural Electrification Ad21 ministration, the Small Business Administration,

22 and any other Federal agency acting in a similar ca23 pacity, in any of their capacities, and their agents or

24 appointees.
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1 ‘‘(2) HAZARDOUS SUBSTANCE.—The term ‘haz2 ardous substance’ has the same meaning as in section

3 101(14) of the Comprehensive Environmental Re4 sponse, Compensation, and Liability Act of 1980.

5 ‘‘(3) RELEASE.—The term ‘release’ has the same

6 meaning as in section 101(22) of the Comprehensive

7 Environmental Response, Compensation, and Liabil8 ity Act of 1980, and includes the use, storage, dis9 posal, treatment, generation, or transportation of a

10 hazardous substance.

11 ‘‘(e) SAVINGS CLAUSE.—Nothing in this section

12 shall—

13 ‘‘(1) affect the rights or immunities or other de14 fenses that are available under this Act or other ap15 plicable law to any party, subject to the provisions of

16 this section;

17 ‘‘(2) be construed to create any liability for any

18 party; or

19 ‘‘(3) create a private right of action against an

20 insured depository institution or lender or against a

21 Federal banking or lending agency.’’.

22 (c) DEFINITION OF PARTICIPATION IN MANAGE23 MENT.—Section 101(20) (42 U.S.C. 9601(20)) (as amended

24 by section 605(a)(3)(C)) is further amended—
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•S 1834 RCS1S

1 (1) in subparagraph (A), by striking the second

2 sentence; and

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

4 ‘‘(F) EXCLUSION OF PERSONS NOT PARTICI5 PANTS IN MANAGEMENT.—

6 ‘‘(i) INDICIA OF OWNERSHIP TO PRO7 TECT SECURITY INTEREST.—The term

8 ‘owner or operator’ does not include a per9 son who, without participating in the man10 agement of a vessel or facility, holds indicia

11 of ownership primarily to protect such

12 persons’s security interest in the vessel or

13 facility.

14 ‘‘(ii) NONPARTICIPATION IN MANAGE15 MENT PRIOR TO FORECLOSURE.—The term

16 ‘owner or operator’ does not include a per17 son who did not participate in management

18 of a vessel or facility prior to foreclosure,

19 even if such person forecloses on such vessel

20 or facility, sells, re-leases (in the case of a

21 lease finance transaction), or liquidates the

22 vessel or facility, maintains business activi23 ties, winds up operations, or undertakes

24 any response action under section 107(d)(1)

25 or under the direction of an on-scene coordi-
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1 nator, with respect to the vessel or facility,

2 or takes other measures to preserve, protect,

3 or prepare the vessel or facility prior to sale

4 or disposition, if such person seeks to sell,

5 re-lease (in the case of a lease finance trans6 action), or otherwise divest such vessel or fa7 cility at the earliest practical, commercially

8 reasonable time, on commercially reasonable

9 terms, taking into account market condi10 tions and legal and regulatory require11 ments.

12 ‘‘(G) PARTICIPATION IN MANAGEMENT.—

13 For purposes of subparagraph (F)—

14 ‘‘(i) the term ‘participate in manage15 ment’ means actually participating in the

16 management or operational affairs of the

17 vessel or facility, and does not include mere18 ly having the capacity to influence, or the

19 unexercised right to control, vessel or facil20 ity operations;

21 ‘‘(ii) a person shall be considered to

22 ‘participate in management’ while the bor23 rower is still in possession of the vessel or

24 facility encumbered by the security interest

25 only if such person—
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1 ‘‘(I) exercises decisionmaking con2 trol over the environmental compliance

3 of a borrower, such that the person has

4 undertaken responsibility for the haz5 ardous substance handling or disposal

6 practices of the borrower; or

7 ‘‘(II) exercises control at a level

8 comparable to that of a manager of the

9 enterprise of the borrower, such that

10 the person has assumed or manifested

11 responsibility for the overall manage12 ment of the enterprise encompassing

13 day-to-day decisionmaking with re14 spect to environmental compliance, or

15 with respect to substantially all of the

16 operational aspects (as distinguished

17 from financial or administrative as18 pects) of the enterprise, other than en19 vironmental compliance;

20 ‘‘(iii) the term ‘participate in manage21 ment’ does not include conducting an act or

22 failing to act prior to the time that a secu23 rity interest is created in a vessel or facil24 ity; and
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•S 1834 RCS1S

1 ‘‘(iv) the term ‘participate in manage2 ment’ does not include—

3 ‘‘(I) holding such a security inter4 est or abandoning or releasing such a

5 security interest;

6 ‘‘(II) including in the terms of an

7 extension of credit, or in a contract or

8 security agreement relating to such an

9 extension, covenants, warranties, or

10 other terms and conditions that relate

11 to environmental compliance;

12 ‘‘(III) monitoring or enforcing the

13 terms and conditions of the extension

14 of credit or security interest;

15 ‘‘(IV) monitoring or undertaking

16 1 or more inspections of the vessel or

17 facility;

18 ‘‘(V) requiring or conducting re19 sponse action or other lawful means of

20 addressing the release or threatened re21 lease of a hazardous substance in con22 nection with the vessel or facility prior

23 to, during, or upon the expiration of

24 the term of the extension of credit;
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•S 1834 RCS1S

1 ‘‘(VI) providing financial or other

2 advice or counseling in an effort to

3 mitigate, prevent, or cure default or

4 diminution in the value of the vessel or

5 facility;

6 ‘‘(VII) restructuring, re7 negotiating, or otherwise agreeing to

8 alter the terms and conditions of the

9 extension of credit or security interest,

10 exercising forbearance; or

11 ‘‘(VIII) exercising other remedies

12 that may be available under applicable

13 law for the breach of any term or con14 dition of the extension of credit or se15 curity agreement;

16 if such actions do not rise to the level of

17 participating in management, as defined in

18 clauses (i) and (ii).

19 ‘‘(H) OTHER TERMS.—As used in subpara20 graph (F), subparagraph (G), and this subpara21 graph, the following definitions shall apply:

22 ‘‘(i) EXTENSION OF CREDIT.—The term

23 ‘extension of credit’ includes a lease finance

24 transaction—
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1 ‘‘(I) in which the lessor does not

2 initially select the leased vessel or facil3 ity and does not during the lease term

4 control the daily operations or mainte5 nance of the vessel or facility; or

6 ‘‘(II) that conforms with regula7 tions issued by the appropriate Federal

8 banking agency or the appropriate

9 State bank supervisor (as those terms

10 are defined in section 3 of the Federal

11 Deposit Insurance Act (12 U.S.C.

12 1813)) or with regulations issued by

13 the National Credit Union Adminis14 tration Board, as appropriate.

15 ‘‘(ii) FINANCIAL OR ADMINISTRATIVE

16 ASPECT.—The term ‘financial or adminis17 trative aspect’ includes a function such as a

18 function of a credit manager, accounts pay19 able officer, accounts receivable officer, per20 sonnel manager, comptroller, or chief finan21 cial officer, or any similar function.

22 ‘‘(iii) FORECLOSURE; FORECLOSE.—

23 The terms ‘foreclosure’ and ‘foreclose’ mean,

24 respectively, acquiring, and to acquire, a

25 vessel or facility through—
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•S 1834 RCS1S

1 ‘‘(I) purchase at sale under a

2 judgment or decree, a power of sale, a

3 nonjudicial foreclosure sale, or from a

4 trustee, deed in lieu of foreclosure, or

5 similar conveyance, or through repos6 session, if such vessel or facility was se7 curity for an extension of credit pre8 viously contracted;

9 ‘‘(II) conveyance pursuant to an

10 extension of credit previously con11 tracted, including the termination of a

12 lease agreement; or

13 ‘‘(III) any other formal or infor14 mal manner by which the person ac15 quires, for subsequent disposition, pos16 session of collateral in order to protect

17 the security interest of the person.

18 ‘‘(iv) OPERATIONAL ASPECT.—The

19 term ‘operational aspect’ includes a func20 tion such as a function of a facility or

21 plant manager, operations manager, chief

22 operating officer, or chief executive officer.

23 ‘‘(v) SECURITY INTEREST.—The term

24 ‘security interest’ includes a right under a

25 mortgage, deed of trust, assignment, judg-
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•S 1834 RCS1S

1 ment lien, pledge, security agreement, fac2 toring agreement, or lease, or any other

3 right accruing to a person to secure the re4 payment of money, the performance of a

5 duty, or some other obligation.’’.

6 (d) EFFECTIVE DATE.—The amendments made by this

7 section shall be applicable with respect to any claim that

8 has not been finally adjudicated as of the date of enactment

9 of this Act.

10 SEC. 412. RELIGIOUS, CHARITABLE, SCIENTIFIC, OR EDU11 CATIONAL ORGANIZATIONS.

12 (a) DEFINITION.—Section 101(20) (42 U.S.C.

13 9601(20)) (as amended by section 411(c)) is further amend14 ed by adding at the end the following:

15 ‘‘(I) RELIGIOUS, CHARITABLE, SCIENTIFIC,

16 OR EDUCATIONAL ORGANIZATION.—Subject to

17 section 107(p), the term ‘owner or operator’ in18 cludes an organization described in section

19 501(c)(3) of the Internal Revenue Code of 1986,

20 that is organized and operated exclusively for re21 ligious, charitable, scientific, or educational pur22 poses, and that holds title to a vessel or facil23 ity.’’.
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1 (b) LIMITATION ON LIABILITY.—Section 107 (42

2 U.S.C. 9607) (as amended by section 403(b)) is further

3 amended by adding at the end the following:

4 ‘‘(p) RELIGIOUS, CHARITABLE, SCIENTIFIC, OR EDU5 CATIONAL ORGANIZATION.—

6 ‘‘(1) LIMITATION ON LIABILITY.—In the event

7 that an organization described in section 101(20)(I)

8 holds title to a vessel or facility, either directly or in

9 trust, as a result of a charitable gift that is allowable

10 as a deduction under section 170, 2055, or 2522 of the

11 Internal Revenue Code of 1986 (determined without

12 regard to dollar limitations), the liability of the orga13 nization shall be limited to the lesser of the fair mar14 ket value of the vessel or facility or the actual pro15 ceeds of the sale of the vessel or facility received by

16 the organization, subject to paragraph (2).

17 ‘‘(2) CONDITIONS.—In order for an organization

18 described in section 101(20)(I) to be eligible for the

19 limited liability described in paragraph (1), the orga20 nization shall—

21 ‘‘(A) provide full cooperation, assistance,

22 and facility access to persons authorized to con23 duct response actions at the vessel or facility, in24 cluding the cooperation and access necessary for

25 the installation, preservation of integrity, oper-
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1 ation, and maintenance of any complete or par2 tial response action at the vessel or facility;

3 ‘‘(B) provide full cooperation and assistance

4 to the United States in identifying and locating

5 persons who recently owned, operated, or other6 wise controlled activities at the vessel or facility;

7 ‘‘(C) establish by a preponderance of the

8 evidence that all active disposal of hazardous

9 substances at the facility or vessel occurred before

10 the organization acquired the vessel or facility;

11 and

12 ‘‘(D) establish by a preponderance of the

13 evidence that the organization did not cause or

14 contribute to a release or threatened release of

15 hazardous substances at the vessel or facility.

16 ‘‘(3) LIMITATION.—Nothing in this subsection

17 shall affect the liability of any person, other than a

18 person described in section 101(20)(I) who meets the

19 conditions specified in paragraph (2).’’.

20 SEC. 413. WORKING GROUP.

21 (a) DEFINITIONS.—As used in this section:

22 (1) ADMINISTRATOR; RESPONSE.—The terms

23 ‘‘Administrator’’ and ‘‘response’’ have the meanings

24 given the terms in paragraphs (2) and (25), respec25 tively, of section 101 of the Comprehensive Environ-
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1 mental Response, Compensation, and Liability Act of

2 1980 (42 U.S.C. 9601).

3 (2) RESPONSE ACTION CONTRACTOR.—The term

4 ‘‘response action contractor’’ means a contractor de5 scribed in section 119(a)(1) of such Act (42 U.S.C.

6 9619(a)(1)).

7 (b) ESTABLISHMENT.—The Administrator shall estab8 lish a working group, which shall include representatives

9 of response action contractor organizations as well as inter10 ested government departments and agencies.

11 (c) STUDY AND REPORT.—

12 (1) STUDY.—The working group shall study the

13 potential liability of response action contractors

14 under such Act and the potential impact of the liabil15 ity on the cost and effectiveness of response actions.

16 The group shall examine potential risks to govern17 ment and private sector entities involved in such re18 sponse actions.

19 (2) REPORT.—The working group shall prepare

20 a report that includes the findings from the study de21 scribed in paragraph (1). The report shall contain

22 recommended measures to address the potential risks.

23 The working group shall submit the report to Con24 gress not later than 120 days after the date of enact25 ment of this Act.
483

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1 SEC. 414. INDIRECT COSTS.

2 Title I (as amended by sections 201(a), 409, 410(b),

3 and 411(a)) (42 U.S.C. 9601 et seq.) is further amended

4 by adding at the end the following new section:

5 ‘‘SEC. 133. INDIRECT COSTS.

6 ‘‘(a) DEFINITION.—As used in this section:

7 ‘‘(1) INDIRECT COST EXPENDITURE.—The term

8 ‘indirect cost expenditure’, used with respect to a fis9 cal year, means a disbursement from the Fund by the

10 President for the operation, management, or imple11 mentation of activities under this Act for the fiscal

12 year that is not directly attributable to the activities

13 of the President for a particular facility at which re14 sponse actions have been, are, or are planned to be

15 taken.

16 ‘‘(2) TOTAL COST EXPENDITURES.—The term

17 ‘total cost expenditures’, used with respect to a fiscal

18 year, means the total amount of the disbursements

19 from the Fund by the President for the operation,

20 management, or implementation of activities under

21 this Act for the fiscal year.

22 ‘‘(b) RULE.—Beginning with fiscal year 1995, the per23 centage of total cost expenditures that represents indirect

24 cost expenditures shall not exceed 35 percent.

25 ‘‘(c) CALCULATION.—Not later than December 1 of fis26 cal year 1997 and of each subsequent fiscal year, the Presi-
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•S 1834 RCS1S

1 dent shall calculate for the preceding fiscal year the percent2 age of total cost expenditures that represents indirect cost

3 expenditures.

4 ‘‘(d) REDUCTION OF CLAIMS.—For any fiscal year for

5 which indirect cost expenditures exceed 35 percent of total

6 cost expenditures, the excess indirect cost expenditures shall

7 not be considered to be response costs that are recoverable

8 under this Act.

9 ‘‘(e) REPORT BY COMPTROLLER GENERAL.—Not later

10 than 3 years after the date of enactment of this section, the

11 Comptroller General shall commence a review of indirect

12 cost expenditures for the period of 3 fiscal years imme13 diately preceding the date on which the Comptroller General

14 commences the review. Not later than 4 years after the date

15 of enactment of this section, the Comptroller General shall

16 submit a report to the Committee on Environment and

17 Public Works of the Senate, containing the results of the

18 review and recommendations as to the appropriate aggre19 gate annual amount of indirect cost expenditures.’’.

20 SEC. 415. RELEASE OF EVIDENCE.

21 (a) TIMELY ACCESS TO INFORMATION FURNISHED

22 UNDER SECTION 104(e).—Section 104(e)(8)(A) (as amend23 ed by section 401(d)) is further amended by inserting after

24 ‘‘shall be made available to the public’’ the following: ‘‘not
485

•S 1834 RCS1S

1 later than 14 days after the records, reports, documents, or

2 information are obtained’’.

3 (b) REQUIREMENT TO PROVIDE PRPS EVIDENCE OF

4 LIABILITY.—

5 (1) ABATEMENT ORDERS.—Section 106(a) (42

6 U.S.C. 9606(a)) (as amended by section 402(a)) is

7 further amended by adding at the end the following:

8 ‘‘In any case in which the President issues an order

9 to a person under this subsection, the President shall

10 provide information concerning the evidence that in11 dicates that each element of liability contained in sec12 tion 107(a) is present with respect to the person.’’.

13 (2) NOTICE OF PERIOD OF NEGOTIATION.—Sec14 tion 122(e)(1) (42 U.S.C. 9622(e)(1)) is amended by

15 inserting after subparagraph (C) the following:

16 ‘‘(D) For each potentially responsible party,

17 information concerning the evidence that indi18 cates that each element of liability contained in

19 section 107(a) is present.’’.

20 SEC. 416. CONTIGUOUS OR NEARBY PROPERTIES.

21 Section 107(n) (as added by section 403(a)(2) and

22 amended by subsections (a)(2) and (d)(1) of section 404)

23 (42 U.S.C. 9607(n)) is further amended by adding at the

24 end the following new paragraph:
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1 ‘‘(5) CONTIGUOUS PROPERTIES.—A person who

2 owns or operates real property that is contiguous to

3 or otherwise similarly situated with respect to real

4 property on which there has been a release or threat5 ened release of a hazardous substance and that is or

6 may be contaminated by such release shall not be con7 sidered to be an owner or operator of a facility under

8 subsection (a)(1) solely by reason of such contamina9 tion, if such person establishes by a preponderance of

10 the evidence that—

11 ‘‘(A) such person exercised due care with re12 spect to the hazardous substance, in light of all

13 relevant facts and circumstances;

14 ‘‘(B) such person took precautions against

15 any foreseeable act or omission that resulted in

16 the release or threatened release and the con17 sequences that could foreseeably result from such

18 act or omission; and

19 ‘‘(C) such person did not cause or contribute

20 to the release or threatened release.

21 The President may issue an assurance of no enforce22 ment action under this Act to any such person and

23 may grant any such person protection against cost re24 covery and contribution actions pursuant to section

25 113(f)(2).’’.
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1 TITLE V—REMEDY SELECTION

2 AND CLEANUP STANDARDS

3 SEC. 501. CLEANUP STANDARDS.

4 (a) IN GENERAL.—Section 121(d) (42 U.S.C. 9621(d))

5 is amended—

6 (1) in paragraph (2)(C)—

7 (A) by striking clause (iv);

8 (B) in clause (iii)—

9 (i) by striking ‘‘(iii)’’ and inserting

10 ‘‘(B)’’;

11 (ii) by striking ‘‘clause (ii)’’ and in12 serting ‘‘subparagraph (A)’’; and

13 (iii) by redesignating subclauses (I),

14 (II), and (III) as clauses (i), (ii), and (iii),

15 respectively; and

16 (C) in clause (ii)—

17 (i) by striking ‘‘(ii)’’ and inserting

18 ‘‘(9)(A)’’; and

19 (ii) by striking ‘‘clauses (iii) and (iv)’’

20 and inserting ‘‘subparagraph (B)’’;

21 (2) in paragraph (3), by inserting ‘‘, or 4010(c)

22 if appropriate,’’ after ‘‘3005’’;

23 (3) by redesignating paragraph (3) as para24 graph (10);

25 (4) by striking paragraph (4); and
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•S 1834 RCS1S

1 (5) by striking the subsection heading and all

2 that follows through the end of clause (i) of paragraph

3 (2)(C) and inserting the following:

4 ‘‘(d) ESTABLISHMENT OF PROTECTIVE CONCENTRA5 TION LEVELS.—

6 ‘‘(1) NATIONAL GOAL.—

7 ‘‘(A) IN GENERAL.—The goal of this Act is

8 to protect human health and the environment. In

9 order to provide consistent and equivalent pro10 tection of human health, the goal of protection of

11 human health shall be expressed as a single nu12 merical health risk level that ensures a reason13 able certainty of no harm from exposure to car14 cinogens and a single numerical health risk level

15 that ensures a reasonable certainty of no harm

16 from exposure to noncarcinogens, and shall pro17 vide the basis for protective concentration levels

18 established under this subsection. The Adminis19 trator shall propose a regulation specifying the

20 health risk levels not later than 12 months after

21 the date of enactment of the Superfund Reform

22 Act of 1994 and shall promulgate the regulation

23 not later than 18 months after such date.

24 ‘‘(B) EXCEPTION.—If the President finds

25 that achievement of the goal is technically infea-
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1 sible or unreasonably costly, the President may

2 select a protective concentration level or take a

3 remedial action that does not achieve the goal.

4 ‘‘(C) LIMITATION.—If the President makes a

5 finding pursuant to subparagraph (B), the

6 President shall—

7 ‘‘(i) publish an explanation dem8 onstrating that achievement of the goal is

9 technically infeasible or unreasonably costly

10 as a declaration in the record of decision

11 with regard to such remedy; and

12 ‘‘(ii) with regard to any protective con13 centration level established for a carcinogen,

14 ensure that the protective concentration

15 level does not result in an unacceptable risk

16 to human health unless the achievement of

17 such level is technically infeasible, in which

18 case the President shall take sufficient ac19 tion to minimize risk to human health.

20 ‘‘(2) SCOPE AND PURPOSE OF NATIONAL RISK

21 PROTOCOL.—

22 ‘‘(A) IN GENERAL.—The Administrator

23 shall promulgate a national risk protocol for

24 conducting risk assessments under this Act. The

25 national risk protocol shall be used for risk as-
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•S 1834 RCS1S

1 sessments underlying determinations of the need

2 for remedial action, the establishment of protec3 tive concentration levels of chemicals, and the

4 evaluation of remedial alternatives.

5 ‘‘(B) SCENARIOS, FORMULAE, OR METH6 ODOLOGIES.—The national risk protocol shall es7 tablish, to the extent appropriate and prac8 ticable, each of the following:

9 ‘‘(i) Standardized exposure scenarios

10 defining exposure pathways for a range of

11 unrestricted and restricted land uses.

12 ‘‘(ii) Standardized formulae or meth13 odologies for—

14 ‘‘(I) evaluating the exposure path15 ways of concern under the standard16 ized exposure scenarios established

17 under clause (i); and

18 ‘‘(II) developing, consistent with

19 the national goal under paragraph (1),

20 chemical concentration levels protective

21 of receptors currently and reasonably

22 anticipated to be exposed via the path23 ways included in such scenarios for at

24 least the 100 contaminants most fre25 quently occurring at facilities ad-
491

•S 1834 RCS1S

1 dressed under this Act and for which

2 adequate toxicity information is avail3 able.

4 ‘‘(iii) Methodologies for facility-specific

5 evaluations of ecological risks.

6 ‘‘(3) STANDARDIZED FORMULAE OR METHODOLO7 GIES.—Standardized formulae or methodologies estab8 lished under paragraph (2) shall include the follow9 ing:

10 ‘‘(A) National constants for specific charac11 teristics of individual chemicals not expected to

12 vary from facility to facility.

13 ‘‘(B) Facility-specific variables for physical

14 characteristics of the facility and other factors.

15 Criteria for identifying such variables shall in16 clude each of the following:

17 ‘‘(i) Whether a characteristic or factor

18 can be objectively measured based on actual

19 facility data or reasonably estimated based

20 on credible scientific studies when facility21 measured data cannot be reasonably ob22 tained.

23 ‘‘(ii) Whether the effects of a char24 acteristic or factor are scientifically well25 understood.
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•S 1834 RCS1S

1 ‘‘(iii) Whether the impact of the char2 acteristic or factor on estimations of risk or

3 protective concentration levels is significant.

4 ‘‘(C) Exposure factors related to demo5 graphics (including separate exposure factors for

6 sensitive subpopulations to be applied where rel7 evant), activity patterns, and natural con8 straints. Defaults or ranges of default values

9 shall be established for such factors and used un10 less verifiable data are presented that the de11 faults are significantly different from actual fa12 cility conditions. In cases in which such data are

13 presented, the values shall be determined on a

14 site-specific basis after consideration of any

15 views expressed by the Community Working

16 Group, if available, and local residents.

17 ‘‘(4) APPLICATION OF NATIONAL RISK PROTO18 COL.—

19 ‘‘(A) ANALYSIS.—The President shall con20 duct an analysis at each such facility to deter21 mine which exposure scenarios, pathways, haz22 ardous substances, and pollutants or contami23 nants are relevant to that facility. Where stand24 ardized formulae or methodologies for addressing

25 such relevant scenarios, pathways, hazardous
493

•S 1834 RCS1S

1 substances, and pollutants or contaminants are

2 available, the formulae or methodologies shall be

3 used.

4 ‘‘(B) NONEXISTENT EXPOSURE PATHWAY.—

5 Standardized formulae or methodologies for ex6 posure pathways that do not exist or are not rea7 sonably anticipated to exist in the future at a fa8 cility shall not be applied in establishing protec9 tive concentration levels for the facility.

10 ‘‘(C) UNAVAILABLE FORMULAE AND METH11 ODOLOGIES.—Where standardized formulae or

12 methodologies for particular exposure scenarios,

13 complex and atypical sites, exposure pathways,

14 or chemicals are unavailable, facility-specific

15 risk assessment shall be used to establish protec16 tive concentration levels under this subsection.

17 ‘‘(5) CONSIDERATIONS IN ESTABLISHING THE

18 NATIONAL RISK PROTOCOL.—

19 ‘‘(A) IN GENERAL.—In developing the na20 tional risk protocol under paragraph (2), the Ad21 ministrator shall evaluate and, to the degree ap22 propriate and practicable—

23 ‘‘(i) identify appropriate sources of

24 toxicity information;
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•S 1834 RCS1S

1 ‘‘(ii) define the use of probabilistic

2 modeling;

3 ‘‘(iii) identify criteria for the selection

4 and application of transport and fate mod5 els;

6 ‘‘(iv) define the use of high end and

7 central tendency exposure cases and as8 sumptions;

9 ‘‘(v) define the use of population risk

10 estimates in addition to individual risk es11 timates;

12 ‘‘(vi) define appropriate approaches for

13 addressing cumulative risks posed by mul14 tiple hazardous substances, multiple pollut15 ants or contaminants, or multiple exposure

16 pathways; and

17 ‘‘(vii) establish appropriate sampling

18 approaches and data quality requirements.

19 ‘‘(B) GUIDELINES.—The national risk pro20 tocol shall establish guidelines for all risk assess21 ments conducted under this Act. The risk assess22 ments and guidelines shall include reasonable es23 timates of plausible high end exposures that do

24 not exaggerate risks by inappropriately

25 compounding multiple hypothetical conservative
495

•S 1834 RCS1S

1 assumptions. For purposes of establishing protec2 tive concentration levels, and other relevant re3 medial decisions, the risk assessments and guide4 lines used to establish the levels and make such

5 decisions shall rely on exposure estimates be6 tween the 90th percentile and the 95th percentile

7 of the combined estimated exposures that may be

8 experienced for all relevant exposure pathways.

9 The Administrator shall ensure that the actual

10 affected population, including, where relevant,

11 sensitive subpopulations, receives a level of pro12 tection as provided in paragraph (1).

13 ‘‘(6) PHASING AND UPDATING OF THE NATIONAL

14 RISK PROTOCOL.—The national risk protocol shall be

15 developed in accordance with a schedule promulgated

16 by the Administrator within 90 days after the date of

17 enactment of the Superfund Reform Act of 1994. The

18 national risk protocol may be developed and promul19 gated in phases as determined to be appropriate by

20 the Administrator. The risk protocol shall be proposed

21 not later than 12 months after the date of enactment

22 of the Superfund Reform Act of 1994 and shall be

23 promulgated not later than 18 months after such date.

24 The Administrator also shall determine an appro25 priate approach and schedule for ensuring that the
496

•S 1834 RCS1S

1 national risk protocol remains current with emerging

2 science and relevant Agency policy.

3 ‘‘(7) FEDERAL AND STATE LAWS.—

4 ‘‘(A) REQUIREMENTS.—A remedial action

5 shall be required to—

6 ‘‘(i) comply with the substantive re7 quirements of any promulgated standard,

8 requirement, criterion, or limitation under

9 any Federal or more stringent State envi10 ronmental or facility siting law that is ap11 plicable to the conduct or operation of the

12 remedial action;

13 ‘‘(ii) attain any promulgated protec14 tive concentration levels applicable to deter15 mining the level of cleanup for remedial ac16 tions conducted under any State environ17 mental law where such levels are more

18 stringent than—

19 ‘‘(I) those established under clause

20 (i) or (ii) of paragraph (8)(A); or

21 ‘‘(II) the concentration levels de22 termined to be protective for a given

23 facility in accordance with the require24 ments of paragraph (2); and
497

•S 1834 RCS1S

1 ‘‘(iii) comply with or attain any other

2 promulgated standard, requirement, cri3 terion, or limitation under any State envi4 ronmental or facility siting law that the

5 State demonstrates is consistently applied

6 to remedial actions under State law, and

7 that the State determines, through a pro8 mulgation process that includes public no9 tice, comment, and written response thereto,

10 and opportunity for judicial review, applies

11 to remedial actions under this Act.

12 ‘‘(B) COMPLIANCE.—Compliance with any

13 State standard, requirement, criterion, or limita14 tion under subparagraph (A) shall be required at

15 a given facility if the standard, requirement, cri16 terion, or limitation has been identified by the

17 State to the President in a timely manner as ap18 plicable at that facility. In addition, each State

19 shall publish a comprehensive list of the promul20 gated standards, requirements, criteria, or limi21 tations that the State may apply to remedial ac22 tions under this Act and revise such list periodi23 cally, as requested by the President.

24 ‘‘(C) PROCEDURAL REQUIREMENTS.—Proce25 dural requirements of Federal and State stand-
498

•S 1834 RCS1S

1 ards, requirements, criteria, or limitations, in2 cluding permitting requirements, shall not apply

3 to response actions conducted onsite at a facility.

4 Compliance with subparagraph (A) shall not be

5 required with respect to return, replacement, or

6 disposal of contaminated media or residuals of

7 contaminated media into the same media in or

8 very near then existing areas of contamination

9 onsite at the facility.

10 ‘‘(D) SELECTION OF DIFFERENT STAND11 ARD.—

12 ‘‘(i) FINDING.—The President may se13 lect for a facility a remedial action meeting

14 the requirements of paragraph (1) that does

15 not comply with or attain a Federal or

16 State standard, requirement, criterion, or

17 limitation as required by subparagraph (A),

18 if the President finds any of the following:

19 ‘‘(I) PART OF REMEDIAL AC20 TION.—The remedial action selected is

21 only part of a total remedial action

22 that will comply with or attain the ap23 plicable requirements of subparagraph

24 (A) when completed.
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•S 1834 RCS1S

1 ‘‘(II) GREATER RISK.—Compli2 ance with or attainment of such stand3 ard, requirement, criterion, or limita4 tion at that facility will result in

5 greater risk to human health and the

6 environment than alternative options.

7 ‘‘(III) TECHNICALLY IMPRACTICA8 BLE.—Compliance with or attainment

9 of such standard, requirement, cri10 terion, or limitation is technically im11 practicable from an engineering per12 spective.

13 ‘‘(IV) EQUIVALENT TO STANDARD

14 OF PERFORMANCE.—The remedial ac15 tion selected will attain a standard of

16 performance that is equivalent to that

17 required under a standard, require18 ment, criterion, or limitation identi19 fied under subparagraph (A) through

20 use of another approach.

21 ‘‘(V) INCONSISTENT APPLICA22 TION.—With respect to a State stand23 ard, requirement, criterion, limitation,

24 or level identified under clause (i) or

25 (ii) of subparagraph (A), the State has
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•S 1834 RCS1S

1 not consistently applied (or dem2 onstrated the intention to consistently

3 apply) the standard, requirement, cri4 terion, limitation, or level in similar

5 circumstances at other remedial ac6 tions within the State.

7 ‘‘(VI) BALANCE.—In the case of a

8 remedial action to be undertaken solely

9 under section 104 using amounts from

10 the Fund, a selection of a remedial ac11 tion that complies with or attains

12 standards, requirements, criteria, or

13 limitations required in subparagraph

14 (A) will not provide a balance between

15 the need for protection of public health

16 and welfare and the environment at

17 the facility under consideration, and

18 the availability of amounts from the

19 Fund to respond to other facilities that

20 present or may present a threat to

21 public health or welfare or the environ22 ment, taking into consideration the rel23 ative immediacy of such threat.

24 ‘‘(ii) PUBLICATION.—The President

25 shall publish any findings made under
501

•S 1834 RCS1S

1 clause (i), together with an explanation and

2 appropriate documentation.

3 ‘‘(8) REMEDIAL ACTIONS FOR CONTAMINATED

4 WATER.—

5 ‘‘(A) GENERAL REQUIREMENTS FOR REME6 DIAL ACTION.—

7 ‘‘(i) DRINKING WATER STANDARDS.—

8 Where a maximum contaminant level or a

9 nonzero maximum contaminant level goal

10 has been established for a hazardous sub11 stance or a pollutant or contaminant under

12 title XIV of the Public Health Service Act

13 (commonly known as the ‘Safe Drinking

14 Water Act’) (42 U.S.C. 300f et seq.), a re15 medial action with respect to such hazard16 ous substance or pollutant or contaminant

17 shall attain such level or goal in any sur18 face water or ground water that may be

19 used for drinking water, unless a more

20 stringent remedial action is necessary to

21 protect wildlife or aquatic life consistent

22 with designated uses for the water and

23 water quality criteria for wildlife or aquat24 ic life issued under the Federal Water Pollu25 tion Control Act (33 U.S.C. 1251 et seq.).
502

•S 1834 RCS1S

1 Protective concentration levels for ground

2 water or surface water meeting the require3 ments of the preceding sentence shall be

4 deemed to meet the requirements of para5 graph (1).

6 ‘‘(ii) OTHER CONTAMINANTS.—Reme7 dial actions and protective concentration

8 levels with respect to other hazardous sub9 stances, and other pollutants or contami10 nants, in contaminated surface water or

11 ground water that may be used for drinking

12 water shall ensure attainment of the goal es13 tablished in paragraph (1).

14 ‘‘(iii) SELECTION OF GROUND WATER

15 REMEDIES.—The President shall identify

16 and select an appropriate remedy for con17 taminated ground water that ensures at18 tainment of the goal established in para19 graph (1), or attains a standard described

20 in clause (i), through the evaluation of re21 medial alternatives and by taking into con22 sideration the factors identified in sub23 section (b)(3)(A) together with each of the

24 following factors:
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•S 1834 RCS1S

1 ‘‘(I) The urgency of the need for

2 the ground water.

3 ‘‘(II) The ability of such remedy

4 to prevent human exposure to such

5 contamination.

6 ‘‘(iv) NATURAL ATTENUATION.—The

7 President may select, for all or a part of the

8 final remedy for a facility, a remedy that

9 utilizes natural attenuation (which may in10 clude dilution and dispersion, but only to

11 the extent necessary to achieve

12 biodegradation).

13 ‘‘(v) OTHER GROUND WATER.—Reme14 dial actions for contaminated ground water

15 (other than ground water that may be used

16 for drinking water) shall attain levels ap17 propriate for the then current or reasonably

18 anticipated future use of such ground water,

19 or levels appropriate considering the then

20 current use of any ground water or surface

21 water to which such contaminated ground

22 water discharges.

23 ‘‘(B) EXCEPTION.—

24 ‘‘(i) IN GENERAL.—The President may

25 select protective concentration levels that do
504

•S 1834 RCS1S

1 not achieve the requirements of subpara2 graph (A), if the President determines that

3 achievement of the requirements is tech4 nically impracticable from an engineering

5 perspective and each of the requirements of

6 this subparagraph is met. The President

7 shall, to the extent practicable, make any

8 such determination of technical imprac9 ticability on the basis of projections, model10 ing, or other analytical techniques without

11 any requirement that remedial measures de12 signed to achieve the requirements of sub13 paragraph (A) first be constructed, in14 stalled, or operated. The preceding sentence

15 shall not be interpreted to prevent the Presi16 dent from selecting or requiring implemen17 tation of any other response action, includ18 ing actions pursuant to subparagraph (D).

19 ‘‘(ii) OPERABLE UNITS.—A remedial

20 action for a facility based on a protective

21 concentration level selected under this sub22 paragraph shall, whenever appropriate con23 sidering the physical characteristics of the

24 facility, be divided into 2 or more operable

25 units reflecting—
505

•S 1834 RCS1S

1 ‘‘(I) the concentrations and char2 acteristics (including density, phase,

3 and propensity to adsorb) of the haz4 ardous substances or pollutants or con5 taminants in ground water; or

6 ‘‘(II) the hydrogeologic and

7 hydrological characteristics of the facil8 ity.

9 The President shall make separate deter10 minations with respect to the technical im11 practicability of attaining protective con12 centration levels achieving the requirements

13 of subparagraph (A) for each operable unit

14 at a facility and shall define operable units

15 so as to maximize the volume of ground

16 water that will attain such levels.

17 ‘‘(iii) CONTAINMENT.—Remedial ac18 tions for each operable unit for which the

19 President has made a determination pursu20 ant to clause (i) shall—

21 ‘‘(I) with respect to an operable

22 unit containing hazardous substances

23 in high concentrations or in a non24 aqueous phase to the extent technically

25 feasible, prevent migration of hazard-
506

•S 1834 RCS1S

1 ous substances or pollutants or con2 taminants from the operable unit; and

3 ‘‘(II) to the extent technically fea4 sible, prevent any increase in the spa5 tial extent of contamination, beyond

6 the area of contamination detected or

7 known at the time the remedial action

8 is selected, that may affect ground

9 water that may be used for drinking

10 water.

11 The President may waive the requirements

12 of subclause (II) for an operable unit con13 taining a relatively low concentration of a

14 hazardous substance or pollutant or con15 taminant over a large area if containment

16 would be technically impracticable from an

17 engineering perspective.

18 ‘‘(iv) REMOVING SOURCE MATERIAL

19 AND DISSOLVED CONTAMINANTS.—Remedial

20 actions based on protective concentration

21 levels selected under this subparagraph shall

22 reduce the volume or toxicity of hazardous

23 substances or pollutants or contaminants

24 remaining in ground water at the facility

25 to the extent technically practicable from an
507

•S 1834 RCS1S

1 engineering perspective and appropriate for

2 effective containment as required under

3 clause (iii) and consistent with the technical

4 requirements for the remedial actions. With

5 respect to an operable unit containing a rel6 atively low concentration of a hazardous

7 substance or pollutant or contaminant over

8 a large area, the requirements of the preced9 ing sentence may be modified if the Presi10 dent finds that such a reduction is tech11 nically impracticable from an engineering

12 perspective.

13 ‘‘(v) OTHER REQUIREMENTS.—Reme14 dial actions based on protective concentra15 tion levels selected under this subparagraph

16 shall—

17 ‘‘(I) prevent or eliminate any ac18 tual human exposure through drinking

19 water to any hazardous substance or

20 pollutant or contaminant in excess of

21 the maximum contaminant level or

22 nonzero maximum contaminant level

23 goal established for the hazardous sub24 stance or pollutant or contaminant

25 under title XIV of the Public Health
508

•S 1834 RCS1S

1 Service Act (commonly known as the

2 ‘Safe Drinking Water Act’) (42 U.S.C.

3 300f et seq.) and may include, as ap4 propriate, the provision of an alternate

5 water supply;

6 ‘‘(II) unless technically imprac7 ticable from an engineering perspec8 tive, prevent impairment of any sur9 face water designated use established

10 under section 303 of the Federal Water

11 Pollution Control Act (33 U.S.C.

12 1313), caused by such hazardous sub13 stance or pollutant or contaminant in

14 any surface water body into which

15 such contaminated ground water is

16 known or projected to enter; and

17 ‘‘(III) provide for long-term mon18 itoring of such ground water, as ap19 propriate (including any information

20 needed for the purposes of review under

21 subsection (c)).

22 ‘‘(vi) PERIODIC REVIEW.—Each reme23 dial action based upon protective concentra24 tion levels selected under this subparagraph

25 shall be reviewed every 5 years as provided
509

•S 1834 RCS1S

1 in subsection (c). If the President deter2 mines that conditions at the facility have

3 changed or that remedial alternatives have

4 become available, so as to attain protective

5 concentration levels achieving the require6 ments of subparagraph (A), the President

7 shall select a new remedy pursuant to this

8 paragraph.

9 ‘‘(vii) PREMIUM.—

10 ‘‘(I) TECHNOLOGY DEVELOP11 MENT.—Whenever the President selects

12 a remedial action based on protective

13 concentration levels selected pursuant

14 to this subparagraph or conducts a re15 view of such action under subsection

16 (c), the President shall impose a pre17 mium that shall be considered a re18 sponse cost otherwise incurred at the

19 facility reflecting—

20 ‘‘(aa) the cost to monitor

21 ground water at the facility to en22 sure that the requirements of this

23 subparagraph continue to be met;

24 and
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•S 1834 RCS1S

1 ‘‘(bb) the opportunities to de2 velop new remediation tech3 nologies that may be applicable to

4 the facility.

5 Total premiums collected under this

6 subclause shall not exceed $50,000,000

7 per year in the aggregate for all facili8 ties with remedial actions based on

9 protective concentration levels selected

10 under this subparagraph. For each fa11 cility with a remedial action based on

12 a protective concentration level selected

13 under this subparagraph, the President

14 shall assess the premium based on the

15 extent and severity of the ground water

16 contamination at the facility. In no

17 case shall the total of the premiums

18 collected from any single potentially

19 responsible party under this subclause

20 for a facility exceed $1,000,000. The

21 President may reduce or waive a pre22 mium described in this subclause for a

23 potentially responsible party at a facil24 ity if the President determines that

25 such a party is a small business and
511

•S 1834 RCS1S

1 has a limited ability to pay or that

2 such a party is currently (as of the

3 date of the waiver) making a signifi4 cant investment for research or devel5 opment for new technologies that may

6 be applicable to the ground water con7 tamination at the facility.

8 ‘‘(II) NEW RELEASES.—In the

9 case of any remediation of contami10 nated ground water resulting from any

11 release of a hazardous substance or pol12 lutant or contaminant from a facility

13 constructed after the date of enactment

14 of the Superfund Reform Act of 1994,

15 and in the case of ground water reme16 diation for operable units where the

17 potentially responsible party is unable

18 to demonstrate that the initial release

19 occurred prior to the date of enactment

20 of the Superfund Reform Act of 1994,

21 the President shall impose a premium

22 that shall be considered a response cost

23 reflecting the reasonable capital and

24 operating costs that would have been
512

•S 1834 RCS1S

1 incurred at the facility to prevent the

2 release.

3 ‘‘(viii) USES OF PREMIUM PAY4 MENTS.—

5 ‘‘(I) IN GENERAL.—Premiums col6 lected pursuant to clause (vii) shall be

7 deposited in the Fund.

8 ‘‘(II) MONITORING AND ASSESS9 MENT.—The premiums may be appro10 priated to conduct monitoring and as11 sessment, only to the extent necessary

12 to assess the development of new tech13 nologies, for facilities for which rem14 edies have been selected incorporating

15 protective concentration levels selected

16 under this subparagraph.

17 ‘‘(III) GRANTS.—The premiums

18 may be appropriated to make grants

19 under section 311(b)(3) to develop tech20 nologies designed to achieve remedi21 ation of ground water at facilities at

22 which the Administrator has made de23 terminations described in subpara24 graph (B)(i). In addition to complying

25 with the requirements of section 311(b),
513

•S 1834 RCS1S

1 the Administrator, in evaluating ap2 plications for such a grant, shall evalu3 ate the applications on the basis of sci4 entific and technical merit and fea5 sibility, using a scientific peer review

6 process. The requirements of section

7 311(b)(5)(J) shall not apply with re8 spect to such a grant. The grant shall

9 be made in an amount of not to exceed

10 $1,000,000, unless the Administrator

11 finds that the project proposed to be

12 carried out with the grant has unusual

13 technical merit and that additional

14 funding is necessary and appropriate.

15 In no case shall the amount of such a

16 grant exceed $5,000,000.

17 ‘‘(C) ALTERNATE CONCENTRATION LIM18 ITS.—For purposes of this paragraph, a process

19 for establishing alternate concentration limits to

20 those otherwise applicable to hazardous sub21 stances or pollutants or contaminants in ground

22 water may not be used to establish applicable

23 standards under this paragraph if the process

24 assumes a point of human exposure beyond the

25 boundary of the facility, as defined at the conclu-
514

•S 1834 RCS1S

1 sion of the remedial investigation and feasibility

2 study for the facility, except where—

3 ‘‘(i) there are known and projected

4 points of entry of such ground water into

5 surface water;

6 ‘‘(ii) on the basis of measurements or

7 projections, there is or will be no statis8 tically significant increase of such constitu9 ents from such ground water in such surface

10 water at the point of entry or at any point

11 where there is reason to believe accumula12 tion of the constituents may occur down13 stream; and

14 ‘‘(iii) the remedial action includes en15 forceable measures that will preclude human

16 exposure to the contaminated ground water

17 at any point between the facility boundary

18 and all known and projected points of entry

19 of such ground water into surface water.

20 ‘‘(D) PREREMEDIAL RESPONSE ACTIONS.—

21 ‘‘(i) INFORMATION COLLECTION.—The

22 President shall ensure, to the extent prac23 ticable, that hydrogeologic and contami24 nant-related information necessary to select

25 final ground water remedial actions shall be
515

•S 1834 RCS1S

1 collected as part of site characterization ac2 tivities prior to and during the remedial in3 vestigation for the facility. Such data shall

4 include information from response actions

5 taken pursuant to clause (ii).

6 ‘‘(ii) EARLY RESPONSE ACTIONS.—The

7 President shall, as appropriate, select in ac8 cordance with subparagraph (A)(iii) and

9 implement response actions (referred to in10 dividually in this clause as a ‘preremedial

11 action’), prior to selecting a final remedial

12 action, to minimize contaminant migration

13 and reduce the risk of adverse effects on

14 human health and the environment from

15 contaminated ground water. In accordance

16 with the provisions of subparagraph (B),

17 the actions may include—

18 ‘‘(I) containment that prevents in19 creases in the areal extent of contami20 nation affecting ground water that

21 may be used for drinking water;

22 ‘‘(II) removal of source material;

23 ‘‘(III) remediation of ground

24 water containing high concentrations
516

•S 1834 RCS1S

1 of hazardous substances or pollutants

2 or contaminants; or

3 ‘‘(IV) installation of physical bar4 riers or caps to contain releases from

5 source materials.

6 Each preremedial action taken under this

7 clause shall be monitored to collect informa8 tion for site characterization and selection

9 of final remedial actions.

10 ‘‘(E) DEFINITION.—For purposes of this

11 paragraph, the phrase ‘ground water that may

12 be used for drinking water’ shall include all

13 ground water except—

14 ‘‘(i) ground water containing more

15 than 10,000 milligrams per liter total dis16 solved solids from naturally occurring

17 sources;

18 ‘‘(ii) ground water that is so contami19 nated by naturally occurring conditions, or

20 by the effects of broad scale human activity,

21 that restoration to the requirements of sub22 paragraph (A) is impracticable; or

23 ‘‘(iii) ground water with respect to

24 which the potential source of drinking water

25 is physically incapable of yielding a quan-
517

•S 1834 RCS1S

1 tity of 150 gallons per day of water to a

2 well or spring without adverse environ3 mental effects.’’.

4 (b) RADIONUCLIDES.—Section 121(d) (42 U.S.C.

5 9621(d)) (as amended by subsection (a)) is further amended

6 by adding at the end the following:

7 ‘‘(11) RADIONUCLIDES DETERMINATION.—

8 ‘‘(A) APPLICATION OF SINGLE NUMERICAL

9 HEALTH RISK LEVEL.—Effective 6 months after

10 the health risk levels established pursuant to

11 paragraph (1) become effective, the single numer12 ical health risk level for carcinogens shall apply

13 to radionuclides, except as provided in subpara14 graph (B).

15 ‘‘(B) ALTERNATIVE QUANTIFIABLE BASIS

16 FOR PROTECTIVE CONCENTRATION LEVELS.—

17 ‘‘(i) DETERMINATION.—The Adminis18 trator shall determine, by rule and after no19 tice and opportunity for public comment,

20 whether the health risk level for carcinogens

21 established under paragraph (1) cannot be

22 attained for a radionuclide, due to the tech23 nical infeasibility of detecting radionuclide

24 contamination or distinguishing radio25 nuclide contamination resulting from
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•S 1834 RCS1S

1 human activity from the ambient level of

2 radionuclides in the environment.

3 ‘‘(ii) ESTABLISHMENT OF ALTER4 NATIVE QUANTIFIABLE BASIS.—If the Ad5 ministrator determines pursuant to clause

6 (i) that the same level of protection cannot

7 be attained for a radionuclide, the Adminis8 trator shall establish, by rule and after no9 tice and opportunity for public comment,

10 an alternative quantifiable basis for setting

11 a protective concentration level for such ra12 dionuclide. Such basis shall apply to the ra13 dionuclide in lieu of the single numerical

14 health risk level, subject to clause (iii).

15 ‘‘(iii) LEVEL OF PROTECTION.—The al16 ternative quantifiable basis referred to in

17 clause (ii) shall require a level of protection

18 as close as possible to the level of protection

19 provided by the single numerical health risk

20 level for carcinogens established pursuant to

21 paragraph (1), consistent with the deter22 mination described in clause (i). Such basis

23 shall apply to a radionuclide unless

24 achievement of the level of protection re25 quired by the basis is determined to be tech-
519

•S 1834 RCS1S

1 nically infeasible or unreasonably costly

2 pursuant to this subsection. In any case in

3 which the President selects a remedy that

4 does not achieve the national goal estab5 lished under paragraph (1), the President

6 shall publish an explanation of the reason

7 for the decision.

8 ‘‘(iv) TIMING.—The Administrator

9 shall make the determination required

10 under clause (i) and, as appropriate, issue

11 a final rule pursuant to clause (ii) no later

12 than 6 months after the health risk level for

13 carcinogens becomes effective under para14 graph (1).

15 ‘‘(C) APPLICATION OF OTHER LAWS.—In

16 the case of remedial activities conducted under

17 this Act, standards promulgated by the Adminis18 trator under any other law that apply to remedi19 ation of a radionuclide shall continue to apply

20 until the earlier of—

21 ‘‘(i) 6 months after the date on which

22 health risk levels become effective under

23 paragraph (1); or
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•S 1834 RCS1S

1 ‘‘(ii) the date on which a final rule is

2 issued under subparagraph (B)(ii) for the

3 radionuclide concerned.’’.

4 (c) ALTERNATE WATER SUPPLY.—Section 118 (42

5 U.S.C. 9618) is amended—

6 (1) by striking ‘‘For’’ and inserting the follow7 ing:

8 ‘‘(a) IN GENERAL.—For’’; and

9 (2) by adding at the end the following new sub10 section:

11 ‘‘(b) ALTERNATE WATER SUPPLY.—In any case where

12 a remedial action at a facility includes a protective con13 centration level established pursuant to section

14 121(d)(8)(B) and contamination from the facility has re15 sulted, or is expected to result, in the presence of a hazard16 ous substance or a pollutant or contaminant in excess of

17 the maximum contaminant level or nonzero maximum con18 taminant level goal established for the hazardous substance

19 or pollutant or contaminant under title XIV of the Public

20 Health Service Act (commonly known as the ‘Safe Drinking

21 Water Act’) (42 U.S.C. 300f et seq.) in a drinking water

22 supply, the remedial action shall include the prompt provi23 sion of an alternate supply of water for drinking and house24 hold purposes. The alternate supply of drinking water shall

25 meet maximum contaminant levels and nonzero maximum
521

•S 1834 RCS1S

1 contaminant level goals established under title XIV of the

2 Public Health Service Act.’’.

3 (d) CONFORMING AMENDMENTS.—

4 (1) Section 117(a)(2) (42 U.S.C. 9617(a)(2)) is

5 amended by striking ‘‘121(d)(4)’’ and inserting

6 ‘‘121(d)(7)(D)’’.

7 (2) Section 121(f) (42 U.S.C. 9621(f)) is amend8 ed by striking ‘‘(d)(4)’’ each place it appears and in9 serting ‘‘(d)(7)(D)’’.

10 SEC. 502. REMEDY SELECTION.

11 Subsection (b) of section 121 (42 U.S.C. 9621(b)) is

12 amended to read as follows:

13 ‘‘(b) GENERAL RULES.—

14 ‘‘(1) SELECTION OF PROTECTIVE REMEDIES.—

15 Remedies selected at individual facilities shall be pro16 tective of human health and the environment, consist17 ent with the factors described in paragraph (3)(A). A

18 remedial action may achieve protection of human

19 health and the environment through—

20 ‘‘(A) treatment that reduces the toxicity,

21 mobility, or volume of hazardous substances or

22 pollutants or contaminants;

23 ‘‘(B) containment or other engineering con24 trols to limit exposure to such substances, pollut25 ants, or contaminants;
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1 ‘‘(C) a combination of such treatment and

2 such containment; or

3 ‘‘(D) another method of protection.

4 The method or methods of remediation appropriate

5 for a given facility shall be determined through the

6 evaluation of remedial alternatives and the selection

7 process under paragraphs (2) and (3). When deter8 mining the appropriate remedial method, the Presi9 dent shall prefer treatment for hot spots. This pref10 erence shall not apply to materials that do not con11 stitute hot spots.

12 ‘‘(2) LAND USE.—

13 ‘‘(A) FACTORS.—In selecting a remedy, the

14 President shall take into account the reasonably

15 anticipated future uses of land at a facility as

16 required by this Act. In identifying reasonably

17 anticipated future land uses, the President shall

18 consider factors, which generally shall include

19 each of the following:

20 ‘‘(i) Any consensus recommendation of

21 the Community Working Group and any

22 other views expressed by members of the

23 community.

24 ‘‘(ii) The land use history of the facil25 ity and surrounding properties, the current
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•S 1834 RCS1S

1 land uses of the facility (as of the date of

2 the identification of the uses) and surround3 ing properties, recent development patterns

4 in the area where the facility is located, and

5 population projections for that area.

6 ‘‘(iii) Federal or State land use des7 ignations, including designations of Federal

8 facilities and national parks, State ground

9 water or surface water recharge areas estab10 lished under a State’s comprehensive protec11 tion plan for ground water or surface water,

12 and recreational areas.

13 ‘‘(iv) The current land use zoning (as

14 of the date of the identification of the uses)

15 and future land use plans of the local gov16 ernment with land use regulatory authority,

17 and general goals and policies expressed in

18 local or State comprehensive plans or relat19 ed documents.

20 ‘‘(v) The potential for economic rede21 velopment.

22 ‘‘(vi) The proximity of the contamina23 tion to residences, sensitive populations or

24 ecosystems, natural resources, or areas of

25 unique historic or cultural significance.
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1 ‘‘(vii) Current plans (as of the date of

2 the identification of the uses) for the facility

3 by the property owner or owners, not in4 cluding potential voluntary remedial meas5 ures.

6 ‘‘(B) CONSIDERATIONS.—In developing its

7 recommendation, the Community Working

8 Group shall consider factors described in clauses

9 (ii) through (vii) of subparagraph (A), and the

10 President shall give substantial weight to that

11 recommendation where consensus is reached, or

12 substantial weight to the views of local residents

13 where the Community Working Group does not

14 reach consensus, in accordance with section

15 117(g).

16 ‘‘(C) INFORMATION.—All information con17 sidered by the President in evaluating reason18 ably anticipated future land uses under this

19 paragraph shall be included in the administra20 tive record under section 113(k).

21 ‘‘(3) APPROPRIATE REMEDIAL ACTION.—

22 ‘‘(A) FACTORS.—The President shall iden23 tify and select an appropriate remedy that pre24 vents exposures to hazardous substances or pol25 lutants or contaminants in excess of protective
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•S 1834 RCS1S

1 concentration levels established under subsection

2 (d) by balancing each of the following factors:

3 ‘‘(i) The effectiveness of the remedy.

4 ‘‘(ii) The long-term reliability of the

5 remedy, defined as its capability to achieve

6 long-term protection of human health and

7 the environment considering the preference

8 for treatment of hot spots.

9 ‘‘(iii) Any short-term risk posed by the

10 implementation of the remedy to the com11 munity, to those engaged in the cleanup ef12 fort, and to the environment.

13 ‘‘(iv) The acceptability of the remedy

14 to the community.

15 ‘‘(v) The reasonableness of the cost of

16 the remedy.

17 ‘‘(B) HOT SPOTS.—Each of the following

18 shall apply to the remediation of hot spots:

19 ‘‘(i) DEFINITION.—For purposes of this

20 section, the term ‘hot spot’ means a discrete

21 area within a facility that contains hazard22 ous substances or pollutants or contami23 nants that are present in high concentra24 tions, are highly mobile, or cannot be reli25 ably contained, and that would present a
526

•S 1834 RCS1S

1 significant risk to human health or the en2 vironment should exposure occur. The Presi3 dent shall develop guidelines for the identi4 fication of hot spots. Such guidelines shall

5 recommend appropriate field investigations

6 that will not require extraordinarily com7 plex or costly measures.

8 ‘‘(ii) REMEDY.—In determining an ap9 propriate remedy for hot spots, the Presi10 dent shall consider the factors under sub11 paragraph (A). With respect to the factor

12 described in subparagraph (A)(v), the Presi13 dent shall use a higher threshold for evalu14 ating the reasonableness of costs for hot spot

15 treatment relative to the remediation of

16 nonhot spot materials.

17 ‘‘(iii) TREATMENT.—The President

18 shall select a remedy requiring treatment of

19 materials constituting hot spots unless an

20 appropriate treatment technology is un21 available or is available only at unreason22 able cost. In such instances, the President

23 shall select an interim containment remedy

24 for such hot spot subject to adequate mon25 itoring and public reporting to ensure its
527

•S 1834 RCS1S

1 continued integrity and shall review the in2 terim containment remedy in accordance

3 with subsection (c). When the appropriate

4 treatment technology becomes available, as

5 determined by the President, a remedy ap6 plying that treatment shall be considered in

7 accordance with this section.

8 ‘‘(iv) FINAL CONTAINMENT REMEDY.—

9 The President may select a final contain10 ment remedy for a hot spot at a landfill,

11 mining site, or similar facility under each

12 of the following circumstances:

13 ‘‘(I) SMALL HOT SPOTS.—The hot

14 spot is small relative to the overall vol15 ume of waste or contamination being

16 addressed, the hot spot is not readily

17 identifiable and accessible, and without

18 the presence of the hot spot contain19 ment would have been selected as the

20 appropriate remedy under subpara21 graph (A) for the larger body of waste

22 or area of contamination in which the

23 hot spot is located.

24 ‘‘(II) HIGH VOLUME OR LARGE

25 AREA HOT SPOTS.—The volume and
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•S 1834 RCS1S

1 areal extent of the hot spot is extraor2 dinary compared to other facilities list3 ed on the National Priorities List, and

4 it is highly unlikely due to the size and

5 other characteristics of the hot spot

6 that any treatment technology will be

7 developed that could be implemented at

8 reasonable cost.

9 With respect to a hot spot described in subclause

10 (II), the President may require, pursuant to sub11 paragraph (A), the removal of the hot spot to an

12 appropriate location where necessary to ensure

13 reliable containment of the hot spot, including

14 the removal of the hot spot from a flood plain.

15 Where final containment for a hot spot is se16 lected, the President shall publish an explanation

17 of the basis for that selection.

18 ‘‘(4) INSTITUTIONAL CONTROLS.—In any case in

19 which the President selects a remedial action that

20 provides that a hazardous substance will remain at

21 the facility at a concentration level above the protec22 tive concentration level for unrestricted land use es23 tablished pursuant to this section after the final reme24 dial action is completed, the President shall ensure

25 that an adequate institutional control (as described in
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•S 1834 RCS1S

1 the national contingency plan, as in effect on the date

2 of enactment of this subsection) is incorporated into

3 the remedial action to achieve protection of human

4 health and the environment.

5 ‘‘(5) GENERIC REMEDIES.—In order to stream6 line the remedy selection process and to facilitate

7 rapid voluntary remedial action under this Act, the

8 President shall establish, taking into account the fac9 tors enumerated in paragraph (3)(A), cost-effective ge10 neric remedies for categories of facilities, and expe11 dited procedures that include community involvement

12 for selecting a generic remedy at an individual facil13 ity. To be eligible for selection at a facility, a generic

14 remedy shall be protective of human health and the

15 environment at that facility. In appropriate cases, the

16 President may select a generic remedy without consid17 ering alternatives to the generic remedy.’’.

18 SEC. 503. MISCELLANEOUS AMENDMENTS TO SECTION 121.

19 (a) REVIEW.—Section 121(c) (42 U.S.C. 9621(c)) is

20 amended—

21 (1) in the first sentence, by striking ‘‘initiation’’

22 and inserting ‘‘completion of all physical onsite con23 struction’’; and

24 (2) in the second sentence—
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•S 1834 RCS1S

1 (A) by inserting ‘‘(1)’’ after ‘‘it is the judg2 ment of the President that’’; and

3 (B) by inserting after ‘‘section 104 or 106,’’

4 the following: ‘‘or (2) an interim containment

5 remedy was selected for such site and an appro6 priate final remedy applying treatment is avail7 able as described in subsection (b)(3)(B)(iii) and

8 appropriate to select in accordance with sub9 section (b)(3)(A),’’.

10 (b) PERMIT APPLICATION.—Section 121(e) (42 U.S.C.

11 9621(e)) is amended—

12 (1) in paragraph (1)—

13 (A) by striking ‘‘(1)’’;

14 (B) in the first sentence, by inserting ‘‘or

15 permit application’’ before ‘‘shall be required’’;

16 and

17 (C) by adding at the end the following new

18 sentence: ‘‘No Federal, State, or local permit or

19 permit application shall be required for onsite or

20 offsite activities conducted under section

21 311(b).’’; and

22 (2) by striking paragraph (2).

23 SEC. 504. RESPONSE AUTHORITIES.

24 (a) STUDIES AND INVESTIGATIONS.—The second sen25 tence of section 104(b)(1) (42 U.S.C. 9604(b)(1)) is amend-
531

•S 1834 RCS1S

1 ed by striking ‘‘studies’’ and all that follows through the

2 period at the end of the sentence and inserting the following:

3 ‘‘actions, studies, or investigations as the President may de4 termine to be necessary or appropriate to plan and direct

5 response actions or to enforce the provisions of this Act and

6 shall be entitled to recover the costs thereof.’’.

7 (b) DISPOSAL AUTHORITY.—Section 104(j) (42 U.S.C.

8 9604(j)) is amended—

9 (1) in the first sentence of paragraph (1), by

10 striking ‘‘remedial’’ and inserting ‘‘response’’;

11 (2) by striking paragraph (2);

12 (3) by redesignating paragraph (3) as para13 graph (2);

14 (4) in paragraph (2) (as so redesignated), by

15 striking ‘‘estate’’ and inserting ‘‘property’’; and

16 (5) by adding after paragraph (2) (as so redesig17 nated) the following new paragraph:

18 ‘‘(3) DISPOSAL AUTHORITY.—The President is

19 authorized to dispose of any interest in real property

20 acquired for use by the Administrator under this sub21 section by sale, exchange, donation, or otherwise and

22 any such interest in real property shall not be subject

23 to any of the provisions of section 120 except the no24 tice provisions of section 120(h)(1). Any moneys re-
532

•S 1834 RCS1S

1 ceived by the President pursuant to this paragraph

2 shall be deposited in the Fund.’’.

3 SEC. 505. REMOVAL ACTIONS.

4 (a) OBLIGATIONS FROM FUND.—Section 104(c)(1) (42

5 U.S.C. 9604(c)(1)) is amended—

6 (1) in subparagraph (C), by striking ‘‘consistent

7 with the remedial action to be taken’’ and inserting

8 ‘‘not inconsistent with any remedial action that has

9 been selected or is anticipated at the time of any re10 moval action at the facility involved,’’;

11 (2) by striking ‘‘$2,000,000’’ and inserting

12 ‘‘$4,000,000’’; and

13 (3) by striking ‘‘12 months’’ and inserting ‘‘two

14 years’’.

15 (b) NONEMERGENCY REMOVALS.—Section 120(e) (42

16 U.S.C. 9620(e)) is amended by adding at the end the follow17 ing new paragraph:

18 ‘‘(7) NOTIFICATION OF AND CONCURRENCE FROM

19 THE ENVIRONMENTAL PROTECTION AGENCY OR STATE

20 FOR NONEMERGENCY REMOVAL ACTIONS.—Before the

21 commencement of any nonemergency removal action

22 by a department, agency, or instrumentality of the

23 United States, such department, agency, or instru24 mentality shall—
533

•S 1834 RCS1S

1 ‘‘(A) notify the Environmental Protection

2 Agency or the State, as appropriate, of the

3 planned removal action; and

4 ‘‘(B) except in a case in which the agency

5 undertaking the action is the Environmental

6 Protection Agency, obtain concurrence in the

7 planned removal action from the Environmental

8 Protection Agency or the State, as applicable.’’.

9 SEC. 506. TRANSITION.

10 (a) EFFECTIVE DATE.—This title, and the amend11 ments made by this title, shall become effective 180 days

12 after the date of enactment of this Act. Remedies selected

13 under the Comprehensive Environmental Response, Com14 pensation, and Liability Act of 1980 (42 U.S.C. 9601 et

15 seq.) following that effective date shall be selected as pro16 vided in section 121(b) of such Act (as amended by section

17 502) (42 U.S.C. 9621(b)) and subject to the Federal and

18 State requirements specified in paragraphs (7) and (8) of

19 section 121(d) of such Act (as amended by section

20 501(a)(5)) (42 U.S.C. 9621(d)), except as provided in sub21 section (b).

22 (b) CONTINUED EFFECTIVENESS OF REGULATIONS

23 AND GUIDANCE.—Until promulgation of the national goals

24 and the national risk protocol under section 121(d) of such

25 Act, the President, in selecting such remedies, may continue
534

•S 1834 RCS1S

1 to rely on current regulations and guidance (in effect under

2 such Act as of the date of enactment of this Act) with regard

3 to acceptable risk levels and the conduct of risk assessments.

4 (c) PRIOR RECORDS OF DECISION.—

5 (1) REOPENINGS.—Nothing in this Act shall

6 place upon the President an obligation to reopen a

7 record of decision signed prior to the effective date of

8 this title.

9 (2) CHANGES.—If, pursuant to section 117 of the

10 Comprehensive Environmental Response, Compensa11 tion, and Liability Act of 1980 (42 U.S.C. 9617), the

12 President determines that a change to a record of de13 cision signed prior to the effective date of this title is

14 necessary, the President may apply the rules in effect

15 under such Act at the time the original record of deci16 sion was signed.

17 TITLE VI—MISCELLANEOUS

18 SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNER19 SHIP AND MIXED RESPONSIBILITY FACILI20 TIES.

21 Section 120(e) (42 U.S.C. 9620(e)) is amended—

22 (1) in paragraph (4), by adding at the end the

23 following new subparagraph:
535

•S 1834 RCS1S

1 ‘‘(D) A provision allowing for the partici2 pation of other responsible parties in the re3 sponse action.’’; and

4 (2) by inserting after paragraph (7) (as added

5 by section 505(b)) the following new paragraph:

6 ‘‘(8) EXCEPTION TO REQUIRED ACTION.—

7 ‘‘(A) CONDITIONS.—No department, agency,

8 or instrumentality of the United States that

9 owns or operates a facility over which the de10 partment, agency, or instrumentality exercises

11 no regulatory or other control over activities that

12 directly or indirectly resulted in a release or

13 threat of a release of a hazardous substance shall

14 be subject to the requirements of paragraphs (1)

15 through (7), other than subparagraphs (F) and

16 (G) of paragraph (5), to the extent that the de17 partment, agency, or instrumentality dem18 onstrates to the satisfaction of the Administrator

19 that—

20 ‘‘(i) no department, agency, or instru21 mentality was the primary or sole source or

22 cause of a release or threat of release of a

23 hazardous substance at the facility;

24 ‘‘(ii) the activities either directly or in25 directly resulting in a release or threat of a
536

•S 1834 RCS1S

1 release of a hazardous substance at the facil2 ity were conducted pursuant to any of sec3 tions 2319 through 2329, section 2331, sec4 tions 2333 through 2337, or section 2344, of

5 the Revised Statutes (30 U.S.C. 22–24, 26–

6 30, 33–35, 37, 39–42, or 47) and occurred

7 before January 1, 1976; and

8 ‘‘(iii) the person or persons primarily

9 or solely responsible for such release or

10 threat of release are financially viable and

11 are capable of performing or financing all

12 or a portion of the response action at the fa13 cility.

14 ‘‘(B) APPLICATION.—

15 ‘‘(i) ENFORCEMENT.—If the conditions

16 listed in clauses (i) through (iii) of sub17 paragraph (A) are not met, the applicable

18 terms of this subsection apply to the depart19 ment, agency, or instrumentality of the

20 United States at the facility. Upon a deter21 mination by the Administrator that a de22 partment, agency, or instrumentality quali23 fies for the exception provided by this para24 graph to other provisions of this subsection,

25 the head of such department, agency, or in-
537

•S 1834 RCS1S

1 strumentality may exercise enforcement au2 thority under section 106 (in addition to

3 any other delegated authorities). To the ex4 tent a person who has been issued an order

5 under the authority of this paragraph seeks

6 reimbursement under section 106, the rel7 evant department, agency, or instrumental8 ity, and not the Fund, shall be the source

9 of any appropriate reimbursement.

10 ‘‘(ii) REMEDIAL INVESTIGATION AND

11 FEASIBILITY STUDY.—Unless the relevant

12 department, agency, or instrumentality has,

13 with the concurrence of the Administrator,

14 obtained or ensured the performance of a re15 medial investigation and feasibility study

16 by responsible parties pursuant to an order

17 or consent decree within 12 months after the

18 facility has been listed on the National Pri19 orities List, the exception provided by this

20 paragraph to other provisions of this sub21 section shall be void and the department,

22 agency, or instrumentality shall, in con23 sultation with the Administrator and ap24 propriate State authorities, commence a re25 medial investigation and feasibility study
538

•S 1834 RCS1S

1 for such facility. If the Administrator deter2 mines that the relevant department, agency,

3 or instrumentality has failed to ensure,

4 within 180 days after the issuance of the

5 record of decision for the facility, the per6 formance of a complete remedial action for

7 the facility, such exception shall be void 30

8 days after the determination, and the de9 partment, agency, or instrumentality shall,

10 in consultation with the Administrator and

11 such authorities, conduct a remedial action

12 consistent with the record of decision for the

13 facility.’’.

14 SEC. 602. TRANSFERS OF UNCONTAMINATED PROPERTY.

15 The first sentence of section 120(h)(4)(A) (42 U.S.C.

16 9620(h)(4)(A)) is amended—

17 (1) by striking ‘‘stored for 1 year or more,’’; and

18 (2) by striking the comma after ‘‘released’’.

19 SEC. 603. AGREEMENTS TO TRANSFER BY DEED.

20 Section 120(h) (42 U.S.C. 9620(h)) is amended by

21 adding at the end the following new paragraph:

22 ‘‘(6) AGREEMENTS TO TRANSFER BY DEED.—

23 Nothing in this subsection shall be construed to pro24 hibit the head of a department, agency, or instrumen25 tality of the United States from entering into an
539

•S 1834 RCS1S

1 agreement to transfer by deed real property or a facil2 ity prior to the entering of such deed, if the head of

3 the department, agency, or instrumentality has met

4 the requirements of paragraph (4).’’.

5 SEC. 604. ALTERNATIVE OR INNOVATIVE TREATMENT TECH6 NOLOGIES.

7 Section 111(a) (42 U.S.C. 9611(a)) is amended by in8 serting after paragraph (6) the following new paragraph:

9 ‘‘(7) ALTERNATIVE OR INNOVATIVE TREATMENT

10 TECHNOLOGIES.—Payment of no more than 50 per11 cent of response costs incurred by a potentially liable

12 party in taking actions approved by the Adminis13 trator to achieve required levels of response under this

14 Act after employing 1 or more alternative or innova15 tive treatment technologies, as defined in section

16 311(b)(10), that fails to achieve a level of response re17 quired under this Act pursuant to an administrative

18 order or consent decree. The Administrator shall issue

19 guidance on the appropriate level of funding for re20 sponse activities using such alternative or innovative

21 treatment technologies that are necessary to achieve a

22 level of response required under this Act. The Admin23 istrator shall review and update such guidance, as

24 appropriate.’’.
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1 SEC. 605. DEFINITIONS.

2 (a) IN GENERAL.—Section 101 (42 U.S.C. 9601) is

3 amended—

4 (1) in paragraph (10)(H), by striking ‘‘subject

5 to’’ and inserting ‘‘in compliance with’’;

6 (2) in paragraph (14), by adding at the end the

7 following new sentence: ‘‘The term includes methane,

8 but only when a response action undertaken to ad9 dress a release or threat of release of a hazardous sub10 stance (as otherwise defined in this paragraph) at a

11 landfill or similar site also addresses methane.’’;

12 (3) in paragraph (20)—

13 (A) in clause (iii) of the first sentence of

14 subparagraph (A), by inserting ‘‘the United

15 States or’’ after ‘‘similar means to’’;

16 (B) in subparagraph (D)—

17 (i) in the first sentence, by inserting

18 ‘‘the United States or’’ after ‘‘does not in19 clude’’; and

20 (ii) in the second sentence—

21 (I) by inserting ‘‘any department,

22 agency, or instrumentality of the Unit23 ed States or’’ before ‘‘any State’’; and

24 (II) by striking ‘‘such a’’ and in25 serting ‘‘such department, agency, or
541

•S 1834 RCS1S

1 instrumentality of the United States

2 or’’; and

3 (C) by inserting after subparagraph (D) the

4 following new subparagraph:

5 ‘‘(E) EXCLUSION OF UNITED STATES, CON6 SERVATOR, OR RECEIVER.—The term ‘owner or

7 operator’ shall not include the United States or

8 any department, agency, or instrumentality of

9 the United States, or a conservator or receiver

10 appointed by a department, agency, or instru11 mentality of the United States, if the United

12 States or the conservator or receiver meets both

13 of the following conditions:

14 ‘‘(i) AUTHORITY.—The United States,

15 conservator, or receiver acquired ownership

16 or control of a vessel or facility (or any

17 right or interest therein)—

18 ‘‘(I) in connection with the exer19 cise of receivership or conservatorship

20 authority or the liquidation or wind21 ing up of the affairs of any entity sub22 ject to a receivership or

23 conservatorship, including any subsidi24 ary thereof;
542

•S 1834 RCS1S

1 ‘‘(II) in connection with the exer2 cise of any seizure or forfeiture author3 ity; or

4 ‘‘(III) pursuant to an Act of Con5 gress specifying the property to be ac6 quired.

7 ‘‘(ii) NONPARTICIPATION IN MANAGE8 MENT.—The United States, conservator, or

9 receiver does not participate in the manage10 ment of the vessel or facility operations that

11 result in a release or threat of release of

12 hazardous substances and complies with

13 such other requirements as the Adminis14 trator may set forth by regulation.’’;

15 (4) in paragraph (23)—

16 (A) in the first sentence—

17 (i) by striking ‘‘terms’’ and inserting

18 ‘‘term’’;

19 (ii) by striking ‘‘necessary’’ the first

20 place it appears and inserting ‘‘nec21 essarily’’; and

22 (iii) by inserting ‘‘or combination of

23 such actions’’ after ‘‘environment, such ac24 tions’’;
543

•S 1834 RCS1S

1 (B) in the second sentence, by striking ‘‘The

2 term’’ and inserting ‘‘Each term’’; and

3 (C) by adding at the end the following new

4 sentence: ‘‘The term ‘remove’ or ‘removal’ is not

5 limited to emergency situations and includes ac6 tions to address future or potential exposures

7 and, if such actions are consistent with the re8 quirements of this Act, actions that obviate the

9 need for a remedial action at a site listed on the

10 National Priorities List by meeting the same re11 quirements as are applicable to remedial actions

12 under section 121.’’;

13 (5) in paragraph (24), by adding at the end the

14 following new sentence: ‘‘The term includes operation

15 and maintenance for a facility.’’;

16 (6) in paragraph (25)—

17 (A) by striking ‘‘terms’’ the first place it

18 appears and inserting ‘‘term’’;

19 (B) by striking ‘‘action;, all’’ and inserting

20 ‘‘action. All’’; and

21 (C) by striking ‘‘related thereto’’ and insert22 ing ‘‘(including the services of attorneys and ex23 pert witnesses) and oversight activities related to

24 the activities described in paragraph (23) or
544

•S 1834 RCS1S

1 (24), as appropriate, if the activities are under2 taken by the President’’;

3 (7) in paragraph (29), by inserting before the pe4 riod the following: ‘‘, except that the term ‘hazardous

5 substance’ shall be substituted for the term ‘hazardous

6 waste’ in the definitions of ‘disposal’ and ‘treat7 ment’ ’’;

8 (8) in paragraph (33), by striking ‘‘; except that

9 the’’ and inserting ‘‘. The’’;

10 (9) in paragraph (35)—

11 (A) in subparagraph (A)—

12 (i) by striking clause (iii); and

13 (ii) in the matter preceding clause (i),

14 by striking ‘‘clause (i), (ii), or (iii)’’ and

15 inserting ‘‘clause (i) or (ii)’’; and

16 (B) by striking subparagraph (B) and in17 serting the following new subparagraph:

18 ‘‘(B) KNOWLEDGE OF INQUIRY REQUIRE19 MENT.—

20 ‘‘(i) IN GENERAL.—To establish that

21 the defendant had no reason to know, as

22 provided in subparagraph (A)(i), the de23 fendant must have undertaken, at the time

24 of the acquisition, all appropriate inquiry

25 into the previous ownership and uses of the
545

•S 1834 RCS1S

1 facility and its real property in accordance

2 with generally accepted good commercial

3 and customary standards and practices.

4 For the purposes of the preceding sentence

5 and until the Administrator issues or des6 ignates standards and practices as provided

7 in clause (ii), the court shall take into ac8 count any specialized knowledge or experi9 ence on the part of the defendant, the rela10 tionship of the purchase price to the value

11 of the property if uncontaminated, com12 monly known or reasonably ascertainable

13 information about the property, the obvious14 ness of the presence or likely presence of

15 contamination at the property, and the

16 ability to detect such contamination by ap17 propriate investigation.

18 ‘‘(ii) RULE.—Within 1 year after the

19 date of enactment of the Superfund Reform

20 Act of 1994, the Administrator shall, by

21 rule, issue standards and practices or des22 ignate standards and practices promulgated

23 or developed by others, that satisfy the re24 quirements of this subparagraph. In issuing

25 or designating such standards and prac-
546

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1 tices, the Administrator shall consider each

2 of the following:

3 ‘‘(I) Conduct of an inquiry by an

4 environmental professional.

5 ‘‘(II) Inclusion of interviews with

6 past and present owners, operators,

7 and occupants of the facility and its

8 real property for the purpose of gather9 ing information regarding the poten10 tial for contamination at the facility

11 and its real property.

12 ‘‘(III) Inclusion of a review of

13 historical sources, such as chain of title

14 documents, aerial photographs, build15 ing department records, and land use

16 records, to determine previous uses and

17 occupancies of the real property since

18 it was first developed.

19 ‘‘(IV) Inclusion of a search for re20 corded environmental cleanup liens,

21 filed under Federal, State, or local law,

22 against the facility or its real prop23 erty.

24 ‘‘(V) Inclusion of a review of Fed25 eral, State, and local government
547

•S 1834 RCS1S

1 records (such as waste disposal

2 records), underground storage tank

3 records, and hazardous waste handling,

4 generation, treatment, disposal, and

5 spill records, concerning contamination

6 at or near the facility or its real prop7 erty.

8 ‘‘(VI) Inclusion of a visual inspec9 tion of the facility and its real prop10 erty and of adjoining properties.

11 ‘‘(VII) Any specialized knowledge

12 or experience on the part of the defend13 ant.

14 ‘‘(VIII) The relationship of the

15 purchase price to the value of the prop16 erty if uncontaminated.

17 ‘‘(IX) Commonly known or rea18 sonably ascertainable information

19 about the property.

20 ‘‘(X) The obviousness of the pres21 ence or likely presence of contamina22 tion at the property, and the ability to

23 detect such contamination by appro24 priate investigation.
548

•S 1834 RCS1S

1 ‘‘(iii) SITE INSPECTION AND TITLE

2 SEARCH.—In the case of property for resi3 dential use or other similar use purchased

4 by a nongovernmental or noncommercial

5 entity, a site inspection and title search

6 that reveal no basis for further investigation

7 satisfy the requirements of this subpara8 graph.’’; and

9 (10) by adding at the end the following new

10 paragraphs:

11 ‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—

12 The term ‘bona fide prospective purchaser’ means a

13 person who acquires ownership of a facility after the

14 date of enactment of the Superfund Reform Act of

15 1994, or a tenant of such a person, who can establish

16 each of the following by a preponderance of the evi17 dence:

18 ‘‘(A) DISPOSAL PRIOR TO ACQUISITION.—

19 All active disposal of hazardous substances at the

20 facility occurred before that person acquired the

21 facility.

22 ‘‘(B) INQUIRY.—The person made all ap23 propriate inquiry into the previous ownership

24 and uses of the facility and its real property in

25 accordance with generally accepted good commer-
549

•S 1834 RCS1S

1 cial and customary standards and practices. The

2 standards and practices issued by the Adminis3 trator pursuant to paragraph (35)(B)(ii) shall

4 satisfy the requirements of this subparagraph. In

5 the case of property for residential or other simi6 lar use purchased by a nongovernmental or non7 commercial entity, a site inspection and title

8 search that reveal no basis for further investiga9 tion satisfy the requirements of this subpara10 graph.

11 ‘‘(C) NOTICES.—The person provided all le12 gally required notices with respect to the discov13 ery or release of any hazardous substances at the

14 facility.

15 ‘‘(D) CARE.—The person exercised appro16 priate care with respect to hazardous substances

17 found at the facility by taking reasonable steps

18 to stop on-going releases, prevent threatened fu19 ture releases of hazardous substances, and pre20 vent or limit human or natural resource expo21 sure to hazardous substances previously released

22 into the environment.

23 ‘‘(E) COOPERATION, ASSISTANCE, AND AC24 CESS.—The person provides full cooperation, as25 sistance, and facility access to those persons that
550

•S 1834 RCS1S

1 are responsible for response actions at the facil2 ity, including the cooperation and access nec3 essary for the installation, integrity, operation,

4 and maintenance of any complete or partial re5 sponse action at the facility.

6 ‘‘(F) RELATIONSHIP.—The person is not

7 liable, or is not affiliated with any other person

8 that is liable, for response costs at the facility,

9 through any direct or indirect familial relation10 ship, or any contractual, corporate, or financial

11 relationship other than that created by the in12 struments by which title to the facility is con13 veyed or financed.

14 ‘‘(40) COMMUNITY.—The term ‘community’, ex15 cept as provided in paragraph (36), used with respect

16 to a facility and without further modification, means

17 a political subdivision of a State, or a combination

18 of such subdivisions, that contains, borders on, or is

19 significantly affected by the facility, in a case of a fa20 cility that is—

21 ‘‘(A) listed or proposed for listing on the

22 National Priorities List; or

23 ‘‘(B) listed on a State Registry.

24 ‘‘(41) MUNICIPAL SOLID WASTE.—The term ‘mu25 nicipal solid waste’ means all waste materials gen-
551

•S 1834 RCS1S

1 erated by households, including single and multifam2 ily residences, and hotels and motels. The term also

3 includes waste materials generated by commercial, in4 stitutional, and industrial sources, to the extent such

5 wastes—

6 ‘‘(A) are essentially the same as waste nor7 mally generated by households; or

8 ‘‘(B) are collected and disposed of with

9 other municipal solid waste or sewage sludge as

10 part of normal municipal solid waste collection

11 services, and, regardless of when generated,

12 would be considered conditionally exempt small

13 quantity generator waste under section 3001(d)

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

15 6921(d)).

16 Examples of municipal solid waste include food and

17 yard waste, paper, clothing, appliances, consumer

18 product packaging, disposable diapers, office supplies,

19 cosmetics, glass and metal food containers, elementary

20 or secondary school science laboratory waste, and

21 household hazardous waste. The term does not include

22 combustion ash generated by resource recovery facili23 ties or municipal incinerators, or waste from manu24 facturing or processing (including pollution control)
552

•S 1834 RCS1S

1 operations not essentially the same as waste normally

2 generated by households.

3 ‘‘(42) MUNICIPALITY.—The term ‘municipality’

4 means a political subdivision of a State, including a

5 city, county, village, town, township, borough, parish,

6 school, school district, sanitation district, water dis7 trict, or other public entity performing local govern8 mental functions. The term also includes a natural

9 person acting in the capacity of an official, employee,

10 or agent of any entity referred to in the preceding

11 sentence in the performance of governmental func12 tions.

13 ‘‘(43) NATIONAL PRIORITIES LIST.—The term

14 ‘National Priorities List’ means the list established

15 under the national contingency plan in accordance

16 with section 105(a)(8).

17 ‘‘(44) OWNER, OPERATOR, OR LESSEE OF RESI18 DENTIAL PROPERTY.—The term ‘owner, operator, or

19 lessee of residential property’ means a person who

20 owns, operates, manages, or leases residential prop21 erty and who uses or allows the use of the residential

22 property exclusively for residential purposes. The

23 term ‘residential property’ means single or multifam24 ily residences, including accessory land, buildings, or
553

•S 1834 RCS1S

1 improvements incidental to such dwellings, that are

2 exclusively for residential use.

3 ‘‘(45) POTENTIALLY RESPONSIBLE PARTY.—The

4 term ‘potentially responsible party’ means a poten5 tially responsible party referred to in section

6 104(a)(1).

7 ‘‘(46) QUALIFIED HOUSEHOLD HAZARDOUS

8 WASTE COLLECTION PROGRAM.—The term ‘qualified

9 household hazardous waste collection program’ means

10 a program established by an entity of the Federal

11 Government, a State, a municipality, or an Indian

12 tribe that provides, at a minimum, for semiannual

13 collection of household hazardous wastes at accessible,

14 well-publicized collection points within the relevant

15 jurisdiction.

16 ‘‘(47) RECORD OF DECISION.—The term ‘record

17 of decision’ means a record of decision referred to in

18 section 117(e).

19 ‘‘(48) REMEDIAL ACTION AND FEASIBILITY

20 STUDY.—The terms ‘remedial action’ and ‘feasibility

21 study’ mean the remedial action and the feasibility

22 study, respectively, referred to in section 104(a)(1).

23 ‘‘(49) SEWAGE SLUDGE.—The term ‘sewage

24 sludge’ means solid, semisolid, or liquid residue re25 moved during the treatment of municipal waste
554

•S 1834 RCS1S

1 water, domestic sewage, or other waste water at or by

2 publicly owned or federally owned treatment works.

3 ‘‘(50) SITE CHARACTERIZATION.—The term ‘site

4 characterization’ means an investigation that deter5 mines the nature and extent of a release or potential

6 release of a hazardous substance, pollutant, or con7 taminant, and that includes an onsite evaluation and

8 sufficient testing, sampling, and other field data gath9 ering activities to analyze whether there has been a

10 release or threat of a release of a hazardous substance,

11 pollutant, or contaminant, and the health and envi12 ronmental risks posed by such a release or threat of

13 release. The investigation also may include review of

14 existing information (available at the time of the re15 view), an offsite evaluation, or other measures that

16 the Administrator considers appropriate.

17 ‘‘(51) SMALL BUSINESS.—The term ‘small busi18 ness’ means any business entity that employs no more

19 than 100 individuals and is a ‘small business con20 cern’ as defined under the Small Business Act (15

21 U.S.C. 631 et seq.).

22 ‘‘(52) SMALL NONPROFIT ORGANIZATION.—The

23 term ‘small nonprofit organization’ means any orga24 nization that, at the time of disposal, did not distrib25 ute any part of its income or profit to its members,
555

•S 1834 RCS1S

1 directors, or officers, employed no more than 100 paid

2 individuals at the involved chapter, office, or depart3 ment, and was recognized as an organization de4 scribed in section 501(c) of the Internal Revenue Code

5 of 1986 and exempt from taxation under section

6 501(a) of such Code.

7 ‘‘(53) STATE REGISTRY.—The term ‘State Reg8 istry’ means a list described in section 105(a)(8)(C).’’.

9 (b) CONFORMING AMENDMENTS.—

10 (1) EPA.—

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

12 amended by striking ‘‘the Administrator of

13 EPA’’ each place it appears and inserting ‘‘the

14 Administrator’’.

15 (B) Section 104(i)(2)(A) (42 U.S.C.

16 9604(i)(2)(A)) is amended by striking

17 ‘‘(‘EPA’)’’.

18 (C) Section 301(h)(2) (42 U.S.C.

19 9651(h)(2)) is amended by striking ‘‘EPA’s ac20 tivities’’ and inserting ‘‘activities of the Envi21 ronmental Protection Agency’’.

22 (2) NPL.—Section 113(g)(1) (42 U.S.C.

23 9613(g)(1)) is amended by striking ‘‘(NPL)’’.

24 (3) RI/FS.—
556

•S 1834 RCS1S

1 (A) Except as provided in subparagraph

2 (B), section 104(a)(1) (42 U.S.C. 9604(a)(1)) is

3 amended by striking ‘‘RI/FS’’ each place it ap4 pears and inserting ‘‘remedial investigation and

5 feasibility study’’.

6 (B) Sections 104(a)(1) and 116(d) (42

7 U.S.C. 9604(a)(1) and 9616(d)) are amended by

8 striking ‘‘(RI/FS)’’.

9 (4) RELATIONSHIP OF OPERATION AND MAINTE10 NANCE TO REMEDIAL ACTION.—Section 104(c)(6) (42

11 U.S.C. 9604(c)(6)) is amended by striking the second

12 and third sentences.

13 SEC. 606. CONFORMING AMENDMENT.

14 Section 126(a) (42 U.S.C. 9626(a)) (as amended by

15 section 205(b)) is further amended by striking ‘‘authorities)

16 and’’ and inserting ‘‘authorities),’’.

17 SEC. 607. RESPONSE CLAIMS PROCEDURES.

18 (a) AMENDMENT OF SECTION 111.—Section 111(a)(2)

19 (42 U.S.C. 9611(a)(2)) is amended by inserting after

20 ‘‘under said plan’’ the following: ‘‘, reasonable in amount

21 based on open and free competition or fair market value

22 for similar available goods and services,’’.

23 (b) AMENDMENT OF SECTION 112.—Section 112(a) (42

24 U.S.C. 9612(a)) is amended—
557

•S 1834 RCS1S

1 (1) in the first sentence, by inserting after ‘‘un2 less such claim is’’ the following: ‘‘(1) accompanied by

3 an audit prepared by an independent, certified public

4 accountant, and (2)’’; and

5 (2) by inserting after the first sentence the fol6 lowing new sentence: ‘‘The Administrator reserves the

7 right to review such audits to determine that the costs

8 for which the claimant is seeking reimbursement are

9 consistent with section 111(a) and, where necessary,

10 withhold claims or a portion thereof that are incon11 sistent with section 111(a).’’.

12 SEC. 608. SMALL BUSINESS OMBUDSMAN.

13 The Administrator of the Environmental Protection

14 Agency shall establish a small business Superfund assist15 ance section within the small business ombudsman office

16 of the Environmental Protection Agency. This section

17 shall—

18 (1) act as a clearinghouse of information for

19 small businesses concerning the Comprehensive Envi20 ronmental Response, Compensation, and Liability

21 Act of 1980 (42 U.S.C. 9601 et seq.), consisting of

22 materials comprehensible to the general public and

23 including information concerning the allocation proc24 ess described in section 129 of such Act (as added by

25 section 409), requirements and procedures for expe-
558

•S 1834 RCS1S

1 dited settlements under section 122(g)(1) of such Act

2 (42 U.S.C. 9622(g)(1)), de minimis and de micromis

3 status, and ability-to-pay procedures;

4 (2) provide general advice and assistance to

5 small businesses as to the questions and problems of

6 the businesses concerning the allocation and settle7 ment processes, except that the advice and assistance

8 shall not include any legal advice as to liability or

9 any other legal representation and the ombudsman

10 shall not participate in the allocation process; and

11 (3) develop proposals and make recommenda12 tions for changes in policies and activities of the En13 vironmental Protection Agency that would better ful14 fill the goals of title IV and the amendments made by

15 such title in ensuring equitable, simplified, and expe16 dited allocations and settlements for small businesses.

17 SEC. 609. CONSIDERATION OF LOCAL GOVERNMENT CLEAN18 UP PRIORITIES IN ALLOCATION OF OVER19 SIGHT RESOURCES.

20 Section 104(c)(2) (42 U.S.C. 9604(c)(2)) is amended—

21 (1) by striking ‘‘(2) The’’ and inserting the fol22 lowing:

23 ‘‘(2) DETERMINATION OF APPROPRIATE REME24 DIAL ACTION.—

25 ‘‘(A) IN GENERAL.—The’’; and
559

•S 1834 RCS1S

1 (2) by adding at the end the following new sub2 paragraph:

3 ‘‘(B) PRIORITIES.—In setting priorities for

4 scheduling work and allocating oversight re5 sources for a remedial action at a facility at

6 which a potentially responsible party that is a

7 State or local government proposes to carry out

8 the remedial action (or a portion thereof), the

9 Administrator should give higher priority to

10 such remedial action (or portion thereof) if the

11 State or local government demonstrates that the

12 remedial action—

13 ‘‘(i) will have a public benefit; and

14 ‘‘(ii) will result in the property on or

15 adjacent to the facility being returned to

16 productive use.

17 A private potentially responsible party may re18 quest similar consideration, in the Administra19 tor’s discretion. Nothing in this subparagraph

20 shall affect the responsibility of the Adminis21 trator to schedule and oversee the conduct of re22 medial action so as to ensure protection of

23 human health and the environment.’’.
560

•S 1834 RCS1S

1 SEC. 610. SEVERABILITY.

2 Section 113 (42 U.S.C. 9613) is amended by adding

3 at the end the following new subsection:

4 ‘‘(m) SEVERABILITY.—If any provision of this Act, an

5 amendment made by this Act, or the application of such

6 provision or amendment to any person or circumstance is

7 held to be unconstitutional, the remainder of this Act, the

8 amendments made by this Act, and the application of the

9 provisions of such to any person or circumstance shall not

10 be affected thereby.’’.

11 SEC. 611. RESULTS-ORIENTED CLEANUPS.

12 Section 105(a) (42 U.S.C. 9605(a)) (as amended by

13 section 103(a)(2)) is further amended—

14 (1) in paragraph (10), by striking ‘‘and’’ the last

15 place it appears;

16 (2) in paragraph (11), by striking the period at

17 the end of the paragraph and inserting ‘‘; and’’; and

18 (3) by inserting after paragraph (11) the follow19 ing:

20 ‘‘(12) alternative procedures for conducting re21 sponse measures, including remedial investigations,

22 feasibility studies, remedial designs, and remedial ac23 tions, which procedures shall—

24 ‘‘(A) utilize a results-oriented approach in

25 order to minimize the time required to conduct

26 response measures, and reduce the potential for
561

•S 1834 RCS1S

1 exposure to hazardous substances, in an efficient,

2 timely, and cost-effective manner; and

3 ‘‘(B) be conducted in accordance with speci4 fied methods and criteria, including directives,

5 standards, and time limits, for the implementa6 tion of the alternative procedures.

7 The national hazardous substance response plan shall be

8 amended within 180 days after the date of enactment of

9 the Superfund Reform Act of 1994 to include procedures

10 required by paragraph (12), after notice and opportunity

11 for public comment. Procedures described in paragraph

12 (12) shall be subject to the requirements of sections 117, 120,

13 and 121, and any other provision of this Act in the same

14 manner and to the same degree as these sections and provi15 sions apply to such response measures.’’.

16 SEC. 612. INNOVATIVE TECHNOLOGIES FOR REMEDIAL AC17 TION AT FEDERAL FACILITIES.

18 (a) IN GENERAL.—Section 311 (42 U.S.C. 9660) is

19 amended by adding at the end the following new subsection:

20 ‘‘(h) FEDERAL FACILITIES.—

21 ‘‘(1) DESIGNATION.—The President may des22 ignate a facility that is owned or operated by any de23 partment, agency, or instrumentality of the United

24 States, and that is listed or proposed for listing on

25 the National Priorities List, to facilitate the research,
562

•S 1834 RCS1S

1 development, and application of innovative tech2 nologies for remedial action at the facility.

3 ‘‘(2) USE OF FACILITIES.—Such a facility shall

4 be made available to Federal departments and agen5 cies, State departments and agencies, and public and

6 private instrumentalities, to carry out activities de7 scribed in paragraph (1). The Administrator shall co8 ordinate the use of the facilities with the departments,

9 agencies, and instrumentalities of the United States,

10 and shall have the right to approve or deny the use

11 of a particular innovative technology for remedial ac12 tion at any such facility.

13 ‘‘(3) CONSIDERATIONS.—In considering whether

14 to permit the application of a particular innovative

15 technology for remedial activity at such a facility, the

16 Administrator shall evaluate the schedules and pen17 alties applicable to the facility under any agreement

18 or order entered into pursuant to section 120. If, after

19 such evaluation, the Administrator determines that

20 there is a need to amend any agreement or order en21 tered into pursuant to section 120, the Administrator

22 shall comply with all provisions of the agreement or

23 order, respectively, relating to the amendment of such

24 agreement or order, respectively.’’.
563

•S 1834 RCS1S

1 (b) REPORT.—Section 311(e) (42 U.S.C. 9660(e)) is

2 amended—

3 (1) by striking ‘‘At the time’’ and inserting the

4 following:

5 ‘‘(1) IN GENERAL.—At the time’’; and

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

7 ‘‘(2) ADDITIONAL INFORMATION.—The report

8 shall also include information on—

9 ‘‘(A) the use of facilities described in sub10 section (h)(1) for the research, development, and

11 application of innovative technologies for reme12 dial activity, as authorized under subsection (h);

13 and

14 ‘‘(B) the use of the Fund to pay for the re15 sponse costs at facilities that fail to meet the re16 quirements of section 121 due to the application

17 of such innovative technologies under subsection

18 (h).’’.

19 SEC. 613. NOTIFICATION.

20 Section 103 (42 U.S.C. 9603) is amended by adding

21 at the end the following:

22 ‘‘(g) NOTIFICATION OF LISTING ON NATIONAL PRIOR23 ITIES LIST.—

24 ‘‘(1) REQUIREMENT.—Any owner or operator of

25 a facility that is—
564

•S 1834 RCS1S

1 ‘‘(A) listed on the National Priorities List;

2 and

3 ‘‘(B) receiving for treatment or disposal

4 hazardous waste generated offsite of such facility;

5 shall notify any person who arranges for treatment or

6 disposal, or arranges with a transporter for transport

7 for treatment or disposal, of such waste at such facil8 ity, that the facility is listed on the National Prior9 ities List.

10 ‘‘(2) PROHIBITION ON DEFENSE.—Lack of notifi11 cation described in paragraph (1) shall not be a de12 fense to liability under section 107.

13 ‘‘(3) TIMING.—The owner or operator shall pro14 vide the notification before accepting the hazardous

15 waste at the facility.

16 ‘‘(4) DEFINITION.—As used in this subsection,

17 the term ‘hazardous waste’ has the meaning given the

18 term in section 1004(5) of the Solid Waste Disposal

19 Act (42 U.S.C. 6903(5)).’’.

20 SEC. 614. CERTIFICATION OF ENVIRONMENTAL TRAINING

21 AND CERTIFICATION ORGANIZATIONS.

22 (a) GUIDELINES.—

23 (1) IN GENERAL.—Not later than 2 years after

24 the date of enactment of this Act, the Administrator

25 shall, after considering the recommendations submit-
565

•S 1834 RCS1S

1 ted under subsection (b)(4), publish guidelines for a

2 model State program for organizations that train and

3 certify individuals to perform phase I environmental

4 site assessments.

5 (2) CONTENTS.—The guidelines published under

6 paragraph (1) may include minimum standards re7 lating to—

8 (A) formal environmental training;

9 (B) continuing environmental education;

10 (C) environmental certification and testing

11 procedures;

12 (D) revocation and disciplinary procedures;

13 (E) establishment of a code of ethics;

14 (F) consumer education;

15 (G) certification renewal procedures; and

16 (H) annual reporting of program activities.

17 (b) ESTABLISHMENT OF ENVIRONMENTAL CERTIFI18 CATION BOARD.—

19 (1) IN GENERAL.—Not later than 60 days after

20 the date of enactment of this Act, the Administrator

21 shall establish a certification advisory board to be

22 known as the ‘‘Environmental Certification Board’’.

23 (2) MEMBERS.—The Board shall consist of not

24 fewer than 6 members, appointed by the Adminis25 trator, who have demonstrated knowledge in the envi-
566

•S 1834 RCS1S

1 ronmental field. The Board shall include representa2 tives from the Environmental Protection Agency, en3 vironmental interest organizations, the chemical man4 ufacturing industry, the environmental consulting

5 service industry, the insurance industry, and the

6 banking and investment industry, and other appro7 priate representatives with knowledge in the environ8 mental field.

9 (3) CHAIRPERSON.—The Board shall appoint 1

10 member to serve as Chairperson of the Board to exer11 cise the executive and administrative functions of the

12 Board.

13 (4) DUTIES.—Not later than 180 days after the

14 date of enactment of this Act, the Board shall submit

15 recommendations to the Administrator regarding the

16 guidelines described in subsection (a) that shall in17 clude the minimum standards described in subsection

18 (a)(2).

19 (5) COMPENSATION.—Notwithstanding section

20 1342 of title 31, United States Code, each member of

21 the Board shall serve without compensation in addi22 tion to any compensation received for the services of

23 the member as an officer or employee of the United

24 States.
567

•S 1834 RCS1S

1 (6) TRAVEL EXPENSES.—The members of the

2 Board shall be allowed travel expenses, including per

3 diem in lieu of subsistence, at rates authorized for

4 employees of agencies under subchapter I of chapter

5 57 of title 5, United States Code, while away from the

6 homes or regular places of business of the members in

7 the performance of services for the Board.

8 (7) FACILITIES, SUPPLIES, AND PERSONNEL.—

9 (A) IN GENERAL.—Upon the request of the

10 Board, the Administrator shall provide to the

11 Board the facilities, supplies, and personnel nec12 essary for the Board to carry out the responsibil13 ities of the Board under this subsection.

14 (B) DETAILS.—In the case of a detail of a

15 Federal Government employee under subpara16 graph (A), the employee may be detailed to the

17 Board without reimbursement. The detail shall

18 be without interruption or loss of civil service

19 status or privilege.

20 (C) HEARINGS.—The Board may hold such

21 hearings, sit and act at such times and places,

22 take such testimony, and receive such evidence as

23 the Board considers advisable to carry out this

24 paragraph.
568

•S 1834 RCS1S

1 (D) INFORMATION FROM FEDERAL AGEN2 CIES.—The Board may secure directly from any

3 Federal department or agency such information

4 as the Board considers necessary to carry out

5 this paragraph. Upon request of the Board, the

6 head of the department or agency shall furnish

7 the information to the Board.

8 (E) POSTAL SERVICES.—The Board may

9 use the United States mails in the same manner

10 and under the same conditions as other depart11 ments and agencies of the Federal Government.

12 (8) TERMINATION.—The Board shall terminate 2

13 years after the date of enactment of this Act.

14 (c) STATE ADOPTION OF REGULATIONS.—

15 (1) IN GENERAL.—After the publication of the

16 guidelines under subsection (a), any State may adopt

17 regulations identical (except as provided in para18 graph (2)) to the guidelines.

19 (2) CONSTRUCTION.—Nothing in this section

20 shall preclude any State from issuing and enforcing,

21 at any time, additional or more stringent guidelines

22 and regulations regarding the training and certifi23 cation of persons who perform phase I environmental

24 site assessments.

25 (d) DETERMINATION OF COMPLIANCE.—
569

•S 1834 RCS1S

1 (1) SUBMISSION OF INFORMATION.—If a State

2 adopts the guidelines issued by the Administrator

3 under subsection (a), any organization located in the

4 State that seeks to obtain a determination of compli5 ance with the regulations adopted under subsection

6 (c) may submit to the State information documenting

7 the compliance of the organization.

8 (2) DETERMINATION.—The State shall make the

9 determination of the compliance or noncompliance of

10 the organization with the regulations.

11 (3) APPROVAL.—As soon as practicable after a

12 determination of compliance has been made under

13 paragraph (2), the State shall issue notice in writing

14 to the organization, indicating that the organization

15 is an approved phase I environmental training and

16 certification organization in accordance with this sec17 tion. The approval shall be valid for a term estab18 lished by the State, but not longer than 5 years.

19 (4) FEE.—A State may charge a reasonable fee,

20 equal to the cost of determining compliance under

21 paragraph (2), to each organization that applies for

22 the determination. Each such fee shall be listed as

23 part of the regulations adopted under subsection (c).

24 (5) ISSUANCE OF DEGREE.—Any organization

25 that has received notice of a determination of compli-
570

•S 1834 RCS1S

1 ance from a State under paragraph (3) may issue, to

2 any individual who has completed to the satisfaction

3 of the organization the curriculum and training pro4 gram of the organization, a diploma, certification, or

5 other form of degree signifying that the recipient is a

6 certified phase I environmental professional qualified

7 to perform phase I environmental site assessments.

8 (6) REVIEW.—A State may periodically, or upon

9 expiration of an approval under paragraph (3), re10 view the program, curriculum, facilities, and training

11 methods of an organization referred to in paragraph

12 (5) to determine if the organization continues to com13 ply with the regulations adopted under subsection (c).

14 (e) DEFINITIONS.—As used in this section:

15 (1) ADMINISTRATOR.—The term ‘‘Adminis16 trator’’ means the Administrator of the Environ17 mental Protection Agency.

18 (2) APPROVED PHASE I ENVIRONMENTAL TRAIN19 ING AND CERTIFICATION ORGANIZATION.—The term

20 ‘‘approved phase I environmental training and cer21 tification organization’’ means an organization that

22 trains and certifies individuals to perform phase I

23 environmental site assessments whose curriculum,

24 program, facilities, training, and testing methods
571

•S 1834 RCS1S

1 comply with the regulations adopted by a State under

2 this section.

3 (3) BOARD.—The term ‘‘Board’’ means the Envi4 ronmental Certification Board established under sub5 section (b)(1).

6 (4) CERTIFIED PHASE I ENVIRONMENTAL PRO7 FESSIONAL.—The term ‘‘certified phase I environ8 mental professional’’ means any person who receives

9 certification to perform phase I environmental site as10 sessments from an approved environmental training

11 and certification organization in accordance with this

12 section.

13 (5) PHASE I ENVIRONMENTAL SITE ASSESS14 MENT.—The term ‘‘phase I environmental site assess15 ment’’ means the process by which a person or entity

16 seeks to determine whether a particular parcel of real

17 property is subject to recognized environmental condi18 tions that indicate the presence or likely presence of

19 a hazardous substance or petroleum product on the

20 property under conditions that indicate an existing

21 release, a past release, or a material threat of a re22 lease into structures on the property, or into the

23 ground, ground water, or surface water of the prop24 erty.
572

•S 1834 RCS1S

1 SEC. 615. SENSE OF THE COMMITTEE CONCERNING OFF2 SETS FROM THE CORPORATE ENVIRON3 MENTAL INCOME TAX TO PAY FOR WELFARE

4 REFORM.

5 (a) FINDINGS.—The Committee on Environment and

6 Public Works finds that—

7 (1) real welfare reform means spending less tax8 payer money, not more;

9 (2) real welfare reform means putting people to

10 work in exchange for benefits;

11 (3) real welfare reform means concentrating ef12 forts to reduce illegitimacy; and

13 (4) real welfare reform means giving the States

14 maximum flexibility to design their own solutions.

15 (b) SENSE OF THE COMMITTEE.—It is the sense of the

16 Committee on Environment and Public Works of the Senate

17 that revenues resulting from the extension of the corporate

18 environmental income tax under section 59A of the Internal

19 Revenue Code of 1986 should not be used to offset expendi20 tures incurred as a result of welfare reform.

21 TITLE VII—FUNDING

22 SEC. 701. AUTHORIZATION OF APPROPRIATIONS.

23 Section 111(a) (42 U.S.C. 9611(a)) is amended by

24 striking ‘‘$8,500,000,000 for the 5-year period beginning on

25 the date of enactment of the Superfund Amendments and

26 Reauthorization Act of 1986, and not more than
573

•S 1834 RCS1S

1 $5,100,000,000 for the period commencing October 1, 1991,

2 and ending September 30, 1994’’ and inserting

3 ‘‘$9,600,000,000 for the period commencing October 1,

4 1994, and ending September 30, 1999’’.

5 SEC. 702. ORPHAN SHARE FUNDING.

6 Section 111(a) (42 U.S.C. 9611(a)) (as amended by

7 section 607(a)) is further amended by inserting after para8 graph (7) the following new paragraph:

9 ‘‘(8) ORPHAN SHARE FUNDING.—Payment of or10 phan shares pursuant to section 129.’’.

11 SEC. 703. DEPARTMENT OF HEALTH AND HUMAN SERVICES.

12 Subsection (m) of section 111 (42 U.S.C. 9611(m)) is

13 amended to read as follows:

14 ‘‘(m) HEALTH AUTHORITIES.—There are authorized

15 to be appropriated from the Fund to the Secretary of Health

16 and Human Services to be used for the purposes of carrying

17 out the activities described in subsection (c)(4) and the ac18 tivities described in section 104(i), $50,000,000 for each of

19 fiscal years 1995 through 1999. Funds appropriated under

20 this subsection for a fiscal year, but not obligated by the

21 end of the fiscal year, shall be returned to the Fund.’’.

22 SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT, AND

23 DEMONSTRATION PROGRAMS.

24 Subsection (n) of section 111 (42 U.S.C. 9611(n)) is

25 amended to read as follows:
574

•S 1834 RCS1S

1 ‘‘(n) LIMITATIONS ON RESEARCH, DEVELOPMENT, AND

2 DEMONSTRATION PROGRAMS.—

3 ‘‘(1) ALTERNATIVE OR INNOVATIVE TECH4 NOLOGIES RESEARCH, DEVELOPMENT, AND DEM5 ONSTRATION PROGRAMS.—For each of fiscal years

6 1995, 1996, 1997, 1998, and 1999, not more than

7 $20,000,000 of the amounts available in the Fund

8 may be used for the purposes of carrying out the ap9 plied research, development, and demonstration pro10 gram for alternative or innovative technologies and

11 training program authorized under section 311(b)

12 (relating to research, development, and demonstra13 tion) other than basic research. Such amounts shall

14 remain available until expended.

15 ‘‘(2) HAZARDOUS SUBSTANCE RESEARCH, DEM16 ONSTRATION, AND TRAINING.—From the amounts

17 available in the Fund, not more than the following

18 amounts may be used for the purposes of section

19 311(a) (relating to hazardous substance research,

20 demonstration, and training activities):

21 ‘‘(A) For fiscal year 1995, $40,000,000.

22 ‘‘(B) For fiscal year 1996, $50,000,000.

23 ‘‘(C) For fiscal year 1997, $55,000,000.

24 ‘‘(D) For fiscal year 1998, $55,000,000.

25 ‘‘(E) For fiscal year 1999, $55,000,000.
575

•S 1834 RCS1S

1 No more than 10 percent of such amounts shall be

2 used for training under section 311(a) for any fiscal

3 year.

4 ‘‘(3) UNIVERSITY HAZARDOUS SUBSTANCE RE5 SEARCH CENTERS.—For each of fiscal years 1995,

6 1996, 1997, 1998, and 1999, not more than

7 $5,000,000 of the amounts available in the Fund may

8 be used for the purposes of section 311(d) (relating to

9 university hazardous substance research centers).’’.

10 SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM

11 GENERAL REVENUES.

12 Paragraph (1) of section 111(p) (42 U.S.C.

13 9611(p)(1)) is amended to read as follows:

14 ‘‘(1) IN GENERAL.—The following sums are au15 thorized to be appropriated, out of any money in the

16 Treasury not otherwise appropriated, to the Hazard17 ous Substance Superfund:

18 ‘‘(A) For fiscal year 1995, $250,000,000.

19 ‘‘(B) For fiscal year 1996, $250,000,000.

20 ‘‘(C) For fiscal year 1997, $250,000,000.

21 ‘‘(D) For fiscal year 1998, $250,000,000.

22 ‘‘(E) For fiscal year 1999, $250,000,000.

23 In addition there is authorized to be appropriated to

24 the Hazardous Substance Superfund for each fiscal

25 year an amount equal to so much of the aggregate
576

•S 1834 RCS1S

1 amount authorized to be appropriated under this sub2 section and the appropriate section of the Internal

3 Revenue Code of 1986 as has not been appropriated

4 before the beginning of the fiscal year involved.’’.

5 SEC. 706. ADDITIONAL LIMITATIONS.

6 Section 111 (42 U.S.C. 9611) is amended by adding

7 at the end the following new subsections:

8 ‘‘(q) ALTERNATIVE OR INNOVATIVE TREATMENT TECH9 NOLOGIES.—For each of fiscal years 1995, 1996, 1997,

10 1998, and 1999, not more than $40,000,000 of the amounts

11 available in the Fund may be used for the purposes of sub12 section (a)(7) (relating to alternative or innovative treat13 ment technologies).

14 ‘‘(r) CITIZEN INFORMATION AND ACCESS OFFICES.—

15 For each of fiscal years 1995 through 1999, not more than

16 $25,000,000 of the amounts available in the Fund may be

17 used to carry out section 117(h) (relating to Citizen Infor18 mation and Access Offices).

19 ‘‘(s) COMMUNITY WORKING GROUPS.—For the period

20 commencing October 1, 1994, and ending September 30,

21 1999, not more than $30,000,000 of the amounts available

22 in the Fund may be used to make grants under section

23 117(g)(6) (relating to Community Working Groups).

24 ‘‘(t) WORKER HEALTH AND SAFETY TRAINING AND

25 EDUCATION GRANTS.—For each of fiscal years 1995
577

•S 1834 RCS1S

1 through 1999, not more than $20,000,000 of the amounts

2 available in the Fund may be used to carry out section

3 126(g) of the Superfund Amendments and Reauthorization

4 Act of 1986 (relating to worker health and safety training

5 and education grants).

6 ‘‘(u) RECOVERIES.—Effective beginning October 1,

7 1995, any recoveries collected pursuant to this Act shall be

8 credited as offsetting collections to the Superfund appro9 priations account.’’.

10 SEC. 707. USES OF THE FUND.

11 Section 111(a) (42 U.S.C. 9611(a)) (as amended by

12 section 702) is further amended by inserting after para13 graph (8) the following new paragraphs:

14 ‘‘(9) REIMBURSEMENT OF POTENTIALLY RESPON15 SIBLE PARTY COSTS.—If a potentially responsible

16 party and the Administrator enter into a settlement

17 under this Act under which the Administrator is re18 imbursed for the response costs of the Administrator,

19 and if the Administrator determines, through a Fed20 eral audit of response costs, that the costs for which

21 the Administrator was reimbursed—

22 ‘‘(A) are unallowable due to contractor

23 fraud;

24 ‘‘(B) are unallowable under the Federal Ac25 quisition Regulation; or
578

•S 1834 RCS1S

1 ‘‘(C) should be adjusted due to routine con2 tract and Environmental Protection Agency re3 sponse cost audit procedures;

4 the Administrator is authorized to use the Fund to re5 imburse a potentially responsible party for any costs

6 identified under subparagraph (A), (B), or (C).

7 ‘‘(10) STATE REGISTRY GRANTS.—The cost of

8 grants under section 104(d)(5) (relating to State Reg9 istries).’’.

10 SEC. 708. TECHNICAL AND CONFORMING AMENDMENTS.

11 Section 9507(c)(1)(A) of the Internal Revenue Code of

12 1986 is amended—

13 (1) at the end of clause (ii), by striking ‘‘and’’;

14 (2) at the end of clause (iii), by striking ‘‘or’’

15 and inserting ‘‘and’’; and

16 (3) by inserting after clause (iii) the following:

17 ‘‘(iv) paragraphs (7), (8), (9), and

18 (10), of subsection (a), and subsections (q),

19 (r), (s), and (t), of section 111 of such Act,

20 or’’.

21 TITLE VIII—ENVIRONMENTAL

22 INSURANCE RESOLUTION FUND

23 SEC. 801. SHORT TITLE.

24 This title may be cited as the ‘‘Environmental Insur25 ance Resolution and Equity Act of 1994’’.
579

•S 1834 RCS1S

1 SEC. 802. DEFINITIONS.

2 For purposes of this title:

3 (1) APPLICABLE COSTS.—The term ‘‘applicable

4 costs’’ means applicable National Priorities List facil5 ity costs or applicable non-National Priorities List

6 facility costs. Costs of removal shall be treated as ap7 plicable costs only if the removal is conducted in ac8 cordance with section 104, 106, or 122 of the Com9 prehensive Environmental Response, Compensation,

10 and Liability Act of 1980 or under the regulations of

11 the Administrator of the Environmental Protection

12 Agency governing removal actions (section 300.415 of

13 title 40, Code of Federal Regulations, or any successor

14 regulations).

15 (2) APPLICABLE NATIONAL PRIORITIES LIST FA16 CILITY COSTS.—The term ‘‘applicable National Prior17 ities List facility costs’’ means the costs for an eligible

18 National Priorities List facility—

19 (A) of response (as defined in section

20 101(25) of the Comprehensive Environmental

21 Response, Compensation, and Liability Act of

22 1980 (42 U.S.C. 9601(25))), or any other liabil23 ity imposed under section 107 of such Act (42

24 U.S.C. 9607), including the costs of meeting

25 State requirements at the facility;
580

•S 1834 RCS1S

1 (B) for natural resources damages under

2 section 107 of the Comprehensive Environmental

3 Response, Compensation, and Liability Act of

4 1980 (42 U.S.C. 9607); or

5 (C) to defend potential liability for the costs

6 described in subparagraph (A) or (B) or both,

7 including attorney’s fees, costs of suit, consultant

8 and expert fees and costs, and expenses for test9 ing and monitoring.

10 (3) APPLICABLE NON-NATIONAL PRIORITIES LIST

11 FACILITY COSTS.—The term ‘‘applicable non-National

12 Priorities List facility costs’’ means the costs for a

13 non-National Priorities List facility—

14 (A) of removal (as defined in section

15 101(23) of the Comprehensive Environmental

16 Response, Compensation, and Liability Act of

17 1980 (42 U.S.C. 9601(23))), or other liability as18 sociated with the removal that is imposed under

19 section 107 of such Act (42 U.S.C. 9607), but not

20 including natural resource damages; and

21 (B) to defend potential liability for such

22 costs of removal, including attorney’s fees, costs

23 of suit, consultant and expert fees and costs, and

24 expenses for testing and monitoring.
581

•S 1834 RCS1S

1 (4) BOARD.—The term ‘‘Board’’ means the

2 Board of Trustees of the Fund.

3 (5) ELIGIBLE COSTS.—The term ‘‘eligible costs’’

4 means the applicable costs incurred with respect to a

5 hazardous substance disposed of at an eligible facility

6 for which an eligible person either—

7 (A) has not been reimbursed; or

8 (B) has been reimbursed and that are the

9 subject of a dispute between the eligible person

10 and an insurer.

11 The term ‘‘eligible costs’’ shall not include any costs

12 paid by the United States, other than unallocated

13 costs that the United States has established as allow14 able costs in its contracts with an eligible person.

15 (6) ELIGIBLE FACILITY.—The term ‘‘eligible fa16 cility’’ means an eligible National Priorities List fa17 cility or an eligible non-National Priorities List facil18 ity.

19 (7) ELIGIBLE NATIONAL PRIORITIES LIST FACIL20 ITY.—The term ‘‘eligible National Priorities List fa21 cility’’ means any facility placed on the National

22 Priorities List at any time, at which a hazardous

23 substance was disposed of on or before December 31,

24 1985.
582

•S 1834 RCS1S

1 (8) ELIGIBLE NON-NATIONAL PRIORITIES LIST

2 FACILITY.—The term ‘‘eligible non-National Priorities

3 List facility’’ means any facility where a removal (as

4 defined in section 101(23) of the Comprehensive Envi5 ronmental Response, Compensation, and Liability

6 Act of 1980 (42 U.S.C. 9601(23))) was conducted

7 pursuant to governmental direction or oversight

8 under the Comprehensive Environmental Response,

9 Compensation, and Liability Act of 1980 and the na10 tional contingency plan at any time, at which a haz11 ardous substance was disposed of on or before Decem12 ber 31, 1985.

13 (9) ELIGIBLE PERSON.—The term ‘‘eligible per14 son’’ means any person that demonstrates, to the sat15 isfaction of the Fund, that such person—

16 (A)(i) has received a notice at any time

17 that it may be a potentially responsible party

18 pursuant to the Comprehensive Environmental

19 Response, Compensation, and Liability Act of

20 1980 with respect to an eligible National Prior21 ities List facility, which notice requests or de22 mands that such party perform response actions

23 or pay response costs or natural resource dam24 ages for such facility; or
583

•S 1834 RCS1S

1 (ii) is or was liable, or alleged to be liable,

2 at any time for a removal (as defined in section

3 101(23) of the Comprehensive Environmental

4 Response, Compensation, and Liability Act of

5 1980 (42 U.S.C. 9601(23))) at any eligible facil6 ity; and

7 (B) had entered into a valid insurance con8 tract for qualified insurance.

9 (10) FACILITY.—The term ‘‘facility’’ has the

10 same meaning as provided in section 101(9) of the

11 Comprehensive Environmental Response, Compensa12 tion, and Liability Act of 1980 (42 U.S.C. 9601(9)).

13 (11) FUND.—The term ‘‘Fund’’ means the Envi14 ronmental Insurance Resolution Fund.

15 (12) NATIONAL CONTINGENCY PLAN.—The term

16 ‘‘national contingency plan’’ has the same meaning

17 as provided in section 101(31) of the Comprehensive

18 Environmental Response, Compensation, and Liabil19 ity Act of 1980 (42 U.S.C. 9601(31)).

20 (13) NATIONAL PRIORITIES LIST.—The term

21 ‘‘National Priorities List’’ means the National Prior22 ities List under section 105 of the Comprehensive En23 vironmental Response, Compensation, and Liability

24 Act of 1980 (42 U.S.C. 9605).
584

•S 1834 RCS1S

1 (14) PERSON.—The term ‘‘person’’ means an in2 dividual, firm, corporation, association, partnership,

3 consortium, joint venture, commercial entity or gov4 ernmental unit (including any predecessor in interest

5 or any subsidiary thereof).

6 (15) QUALIFIED INSURANCE.—The term ‘‘quali7 fied insurance’’ means insurance for comprehensive

8 general liability or commercial multiperil insurance

9 coverage for any period prior to January 1, 1986.

10 For purposes of this paragraph—

11 (A) comprehensive general liability insur12 ance includes broad form liability, general liabil13 ity, commercial general liability, and excess or

14 umbrella coverage; and

15 (B) commercial multiperil insurance in16 cludes broad form property, commercial package,

17 special multiperil, and excess or umbrella cov18 erage.

19 The term ‘‘qualified insurance’’ shall not include any

20 other insurance, such as environmental impairment

21 liability insurance.

22 (16) VALID INSURANCE CONTRACT.—The term

23 ‘‘valid insurance contract’’ means a contract for

24 qualified insurance other than any of the following:
585

•S 1834 RCS1S

1 (A) An insurance contract with respect to

2 which a person has entered into a settlement

3 with an insurer providing, or where a judgment

4 has provided, that the contract has been satisfied

5 and that such person has no right to make any

6 further claims for eligible costs under such con7 tract.

8 (B) An insurance contract that covers only

9 a time period prior to the earliest date of the ac10 tion or status of the insured person that resulted

11 in liability or potential liability under section

12 107 of the Comprehensive Environmental Re13 sponse, Compensation, and Liability Act of 1980

14 (42 U.S.C. 9607).

15 (C) An insurance contract with an insur16 ance company that is insolvent or in insolvency

17 proceedings on the date an eligible person elects

18 to participate in the Fund.

19 (D) An insurance contract that is the sub20 ject of a settlement between the insurance com21 pany and the insured pursuant to which the pol22 icy has been reformed to include an absolute ex23 clusion for pollution liability.

24 (E) An insurance contract issued to a re25 sponse action contractor for any liability under
586

•S 1834 RCS1S

1 the Comprehensive Environmental Response,

2 Compensation, and Liability Act of 1980 gov3 erned by section 119 of such Act (42 U.S.C.

4 9619).

5 (17) STATE.—The term ‘‘State’’ has the same

6 meaning as provided in section 101(27) of the Com7 prehensive Environmental Response, Compensation,

8 and Liability Act of 1980 (42 U.S.C. 9601(27)).

9 SEC. 803. ENVIRONMENTAL INSURANCE RESOLUTION

10 FUND.

11 (a) ENVIRONMENTAL INSURANCE RESOLUTION FUND

12 ESTABLISHED.—There is established the Environmental

13 Insurance Resolution Fund.

14 (b) OFFICES.—The principal office of the Fund shall

15 be in the District of Columbia or at such other place as

16 the Fund may from time to time prescribe.

17 (c) STATUS OF RESOLUTION FUND.—Except as ex18 pressly provided in this title, the Fund shall not be consid19 ered an agency or establishment of the United States.

20 (d) BOARD OF TRUSTEES.—

21 (1) IN GENERAL.—The Fund shall be adminis22 tered by a Board of Trustees.

23 (2) MEMBERSHIP.—The Board shall consist of

24 the following:

25 (A) GOVERNMENTAL MEMBERS.—
587

•S 1834 RCS1S

1 (i) The Administrator of the Environ2 mental Protection Agency or the Adminis3 trator’s designee, who shall be a Deputy As4 sistant Administrator in the Environmental

5 Protection Agency or a person with imme6 diate or general supervisory authority over

7 such a Deputy Assistant Administrator.

8 (ii) The Attorney General of the

9 United States or the Attorney General’s des10 ignee, who shall be a Deputy Assistant At11 torney General in the Department of Justice

12 or a person with immediate or general su13 pervisory authority over such a Deputy As14 sistant Attorney General.

15 (B) PUBLIC MEMBERS.—Five public mem16 bers appointed by the President not later than

17 60 days after the date of enactment of this Act,

18 not fewer than 2 of whom shall represent insur19 ers subject to the appropriate section of the Inter20 nal Revenue Code of 1986, and not fewer than

21 2 of whom shall represent eligible persons. The

22 public members shall be citizens of the United

23 States. The public members of the Board shall

24 not, by reason of such membership, be deemed to

25 be officers or employees of the United States.
588

•S 1834 RCS1S

1 (C) NONVOTING MEMBER.—The Secretary of

2 the Treasury or the designee of the Secretary

3 shall serve as a nonvoting member of the Board.

4 Any designee of the Secretary shall be a Deputy

5 Assistant Secretary in the Department of the

6 Treasury or a person with immediate or general

7 supervisory authority over such a Deputy Assist8 ant Secretary.

9 (D) INTERIM AUTHORITY.—Notwithstand10 ing subparagraph (C) and paragraph (7), until

11 such time as all the public members have been

12 appointed pursuant to subparagraph (B), all au13 thority of the Board shall be exercised by major14 ity vote of the Attorney General, the Secretary of

15 the Treasury, and the Administrator of the En16 vironmental Protection Agency, or their des17 ignees.

18 (3) CHAIRPERSON.—

19 (A) DESIGNATION BY PRESIDENT.—The

20 Chairperson of the Board shall be designated by

21 the President from time to time from among the

22 members described in paragraph (2)(A).

23 (B) AUTHORITY OF CHAIRPERSON.—No ex24 penditure may be made by the Fund, or other

25 action taken by the Fund, without the concur-
589

•S 1834 RCS1S

1 rence of the Chairperson of the Board. Except

2 with respect to an action taken or required to be

3 taken by the Board, the Chairperson may dele4 gate such authority to any officer or employee of

5 an agency represented by a governmental mem6 ber of the Board. Any such delegation by the

7 Chairperson shall be effective only upon publica8 tion of notice in the Federal Register.

9 (4) COMPENSATION.—Governmental members of

10 the Board shall serve without additional compensa11 tion. Public members of the Board shall, while attend12 ing meetings of the Board or while engaged in duties

13 related to such meetings or other activities of the

14 Board pursuant to this title, be entitled to receive

15 compensation at the rate of $200 per day, including

16 travel time. While away from their homes or regular

17 places of business, members of the Board shall be al18 lowed travel and actual, reasonable, and necessary ex19 penses to the same extent as officers of the United

20 States.

21 (5) TERM OF PUBLIC MEMBERS.—Public mem22 bers of the Board shall serve for a term of 5 years,

23 except that such members may be removed by the

24 President for any reason at any time. A public mem25 ber whose term has expired may continue to serve on
590

•S 1834 RCS1S

1 the Board until such time as the President appoints

2 a successor. The President may reappoint a public

3 member of the Board, but no such member may con4 secutively serve more than 2 terms.

5 (6) VACANCIES.—A vacancy on the Board shall

6 be filled in the same manner as the original appoint7 ment, except that such appointment shall be for the

8 balance of the unexpired term of the vacant position.

9 (7) QUORUM.—Four members of the Board shall

10 constitute a quorum for the conduct of business.

11 (8) MEETINGS.—The Board shall meet not less

12 than quarterly at the call of the Chairperson. Meet13 ings of the Board shall be open to the public unless

14 the Board, by a majority vote of members present in

15 open session, determines that it is necessary or appro16 priate to close a meeting. The Chairperson shall pro17 vide at least 10 days notice of a meeting by publish18 ing a notice in the Federal Register and such notice

19 shall indicate whether it is expected that the Board

20 will consider closing all or a portion of the meeting.

21 Nothing in this paragraph shall be construed to apply

22 to informal discussions or meetings among Board

23 members.

24 (e) OFFICERS AND EMPLOYEES.—
591

•S 1834 RCS1S

1 (1) CHIEF EXECUTIVE OFFICER; CHIEF FINAN2 CIAL OFFICER.—

3 (A) CHIEF EXECUTIVE OFFICER.—The

4 Fund shall have a Chief Executive Officer ap5 pointed by the Chairperson of the Board who

6 shall exercise any authority of the Fund or the

7 Chairperson under such terms and conditions as

8 the Chairperson of the Board may prescribe.

9 (B) CHIEF FINANCIAL OFFICER.—The Fund

10 shall have a Chief Financial Officer appointed

11 by the Board.

12 (2) COMPENSATION.—No officer or employee of

13 the Fund may be compensated by the Fund at an an14 nual rate of pay that exceeds the rate of basic pay in

15 effect from time to time for level I of the Executive

16 Schedule under section 5312 of title 5, United States

17 Code. No officer or employee of the Fund, other than

18 a member of the Board, may receive any salary or

19 other compensation from any source other than the

20 Fund for services rendered during the period of em21 ployment by the Fund.

22 (3) POLITICAL TEST OR QUALIFICATION.—No po23 litical test or qualification shall be used in selecting,

24 appointing, promoting, or taking other personnel ac-
592

•S 1834 RCS1S

1 tions with respect to officers, agents, and employees of

2 the Fund.

3 (4) ASSISTANCE BY FEDERAL AGENCIES.—The

4 Attorney General, the Secretary of the Treasury, and

5 the Administrator of the Environmental Protection

6 Agency may, to the extent practicable and feasible

7 and in their sole discretion, make personnel and other

8 resources available to the Fund. Such personnel and

9 resources may be provided on a reimbursable basis,

10 and any personnel so provided shall not be considered

11 employees of the Fund for purposes of paragraph (2).

12 (f) POWERS OF RESOLUTION FUND.—Notwithstanding

13 any other provision of law, except as provided in section

14 803(d)(3)(B) or in any other provision of this title or as

15 may be hereafter enacted by Congress expressly in limita16 tion of the provisions of this subsection, the Fund shall have

17 the power—

18 (1) to have succession until dissolved by Act of

19 Congress;

20 (2) to make and enforce such bylaws, rules, and

21 regulations as may be necessary or appropriate to

22 carry out the purposes of this title;

23 (3) to make and perform contracts, agreements,

24 and commitments;
593

•S 1834 RCS1S

1 (4) to settle, adjust, and compromise, and with

2 or without consideration or benefit to the Fund re3 lease or waive in whole or in part, in advance or oth4 erwise, any claim, demand, or right of, by, or against

5 the Fund;

6 (5) to sue and be sued, complain, and defend in

7 any Federal, State, or other court;

8 (6) to determine its necessary expenditures and

9 appoint, employ, and fix and provide for the duties,

10 compensation and benefits of officers, employees, at11 torneys, and agents, all of whom shall serve at the

12 pleasure of the Chairperson of the Board;

13 (7) to hire or accept the voluntary services of

14 consultants, experts, advisory boards, and panels to

15 aid the Fund in carrying out the purposes of this

16 title; and

17 (8) to take such other actions as may be nec18 essary to carry out the responsibilities of the Fund

19 under this title.

20 (g) BORROWING AUTHORITY.—Nothing in this title

21 shall be construed to permit the Fund to issue any evidence

22 of indebtedness or otherwise borrow money.

23 (h) CONFLICTS OF INTEREST.—

24 (1) STANDARDS OF CONDUCT.—For purposes of

25 the standards of conduct promulgated by the Office of
594

•S 1834 RCS1S

1 Government Ethics pursuant to part 2635 of title 5,

2 Code of Federal Regulations, officers and employees of

3 the Fund shall be considered to be officers and em4 ployees of agencies, within the meaning of such part.

5 The Chairperson of the Board shall enforce such

6 standards and may prescribe such supplemental

7 standards of conduct as the Board determines to be

8 appropriate.

9 (2) FINANCIAL CONFLICTS OF INTEREST.—For

10 purposes of section 208 of title 18, United States

11 Code, officers and employees of the Fund shall be con12 sidered to be officers and employees of the executive

13 branch of the United States Government.

14 (i) TORT CLAIMS.—The Fund shall be considered to

15 be an agency of the United States for purposes of chapter

16 171 of title 28, United States Code.

17 SEC. 804. RESOLUTION OFFERS.

18 (a) IN GENERAL.—The Fund shall offer 1 comprehen19 sive resolution to each eligible person. The offer shall be for

20 a percentage of all the eligible costs of such eligible person

21 incurred in connection with all eligible facilities. The

22 amount of the offer shall be determined pursuant to section

23 806.

24 (b) REQUESTS FOR RESOLUTION OFFERS.—
595

•S 1834 RCS1S

1 (1) IN GENERAL.—An eligible person may, at

2 any time after the promulgation of the interim final

3 regulations under section 812(a), file a request for a

4 resolution offer from the Fund.

5 (2) RESPONSE TO REQUEST.—Not later than 180

6 days after the receipt of a complete request as deter7 mined by the Fund, the Fund shall in writing—

8 (A) make a resolution offer to each eligible

9 person that has filed a request for a resolution

10 offer; or

11 (B) notify a person filing such a request

12 that such person is not an eligible person.

13 (c) JOINT VENTURES AND SUBSIDIARIES.—A joint

14 venture shall not be aggregated with any individual joint

15 venturer for purposes of this section but shall be treated as

16 a distinct entity for such purposes. All claims by subsidi17 aries shall be included in a single claim by the corporate

18 parent for purposes of this Act.

19 SEC. 805. DOCUMENTATION OF CLAIMS AND INSURANCE

20 COVERAGE.

21 (a) SCREENING OF CLAIMS.—

22 (1) DENIAL BY REASON OF FELONY.—The Fund

23 may deny a resolution offer to an otherwise eligible

24 person for a specific facility if the eligible person has

25 been convicted of a felony under any Federal or State
596

•S 1834 RCS1S

1 statute that has a material effect on the response costs

2 or natural resource damage incurred at the facility.

3 (2) FILING AND ACTIVE PURSUIT OF CLAIMS.—

4 The Fund may decide not to make an offer to an eli5 gible person unless the eligible person has filed a

6 claim and is actively pursuing the claim. The Fund

7 may also decide that an offer should be made to any

8 such person.

9 (3) EFFECT OF SCREENING.—An eligible person

10 who has been denied a resolution offer under this sub11 section for 1 or more facilities shall not be subject to

12 sections 807(c) and 809(a) with respect to the facili13 ties.

14 (b) FILING OF CLAIMS.—For the purposes of subsection

15 (a), an eligible person shall be considered to have filed a

16 claim if the eligible person has notified 1 or more of its

17 insurers of the existence of a claim, or has engaged in active

18 investigation and preparation of a claim, or has filed a

19 lawsuit seeking coverage for eligible costs. Failure to have

20 filed a claim or to have engaged in settlement discussions

21 before January 1, 1994, shall not be considered to preclude

22 an eligible person from receiving an offer from the Fund

23 if the eligible person had not received any notice letter from

24 a governmental authority or 1 or more potentially respon25 sible parties asserting its potential liability under the Com-
597

•S 1834 RCS1S

1 prehensive Environmental Response, Compensation, and

2 Liability Act of 1980 at any eligible facility until after

3 January 1, 1993.

4 (c) ACTIVE PURSUIT OF CLAIMS.—For purposes of this

5 section, an eligible person shall be considered to be actively

6 pursuing a claim if—

7 (1) the person has filed a lawsuit against an in8 surer, has filed a motion or another pleading in a

9 lawsuit against an insurer, or has engaged in any

10 discovery in a lawsuit against an insurer during the

11 period beginning January 1, 1993, and ending De12 cember 31, 1993, regarding eligible costs at an eligible

13 facility;

14 (2) the person has engaged in settlement discus15 sions with an insurer during the period beginning

16 January 1, 1993, and ending December 31, 1993, re17 garding eligible costs at an eligible facility;

18 (3) the person has engaged in active investiga19 tion and preparation of a claim during the period be20 ginning January 1, 1993, and ending December 31,

21 1993;

22 (4) if the person has received a letter from an in23 surer rejecting coverage or reserving its rights to reject

24 coverage regarding eligible costs at an eligible facility,

25 the person has sent within 1 year thereafter an addi-
598

•S 1834 RCS1S

1 tional status report or letter apprising an insurer of

2 activities regarding an eligible facility; or

3 (5) the eligible person has sent a letter to an in4 surer notifying an insurer of the potential existence

5 of a claim regarding eligible costs at an eligible facil6 ity and has received no response from the insurer.

7 (d) DOCUMENTATION OF COVERAGE.—

8 (1) EFFECT OF DOCUMENTATION.—Coverage of

9 an eligible person for policy years prior to 1986 and

10 the applicable deductibles and limits on coverage shall

11 be confirmed to the satisfaction of the Fund by the

12 terms of the policies or other documentary proof of in13 surance provided by, or for, the eligible person in ac14 cordance with this subsection.

15 (2) SUBMISSION OF DOCUMENTARY EVIDENCE.—

16 After promulgation of regulations governing docu17 mentation requirements, an eligible person requesting

18 an offer shall submit copies of its insurance policies,

19 or other documentary evidence sufficient to establish

20 the following 6 terms of coverage: insurance company,

21 policy number, type of policy, duration of policy, de22 ductible or self-insured retention, and limit of cov23 erage. Documentary evidence may consist of any doc24 uments from an insurance company or broker or doc25 uments of the eligible person or other party that are
599

•S 1834 RCS1S

1 generally contemporaneous with the term of the policy

2 or with subsequent retrospective rating under the pol3 icy. Where documentary evidence (other than a pol4 icy) is relied upon as the proof of coverage, an eligible

5 person shall certify that it has undertaken a good

6 faith investigation of its records, that its submission

7 is complete and accurate to the best of its information

8 and belief, and that it does not have a copy of the in9 surance policy. If an eligible person submits docu10 mentary evidence that does not establish all 6 terms

11 of coverage but that does establish the name of the in12 surance company and 1 or more other terms evidenc13 ing coverage, the named insurance company shall un14 dertake a good faith investigation for any policy or

15 other relevant documents evidencing the eligible per16 son’s coverage. At the conclusion of the investigation,

17 the named insurance company shall—

18 (A) provide to the Fund any policies or

19 other documents relevant to the eligible person’s

20 claim of coverage; or

21 (B) certify that it has undertaken a good

22 faith investigation of its records and that it has

23 produced any and all policies or documents

24 available to the insurer and relevant to the eligi25 ble person’s claim of coverage.
600

•S 1834 RCS1S

1 Subsequent to the named insurance company’s pro2 duction or certification, the Fund shall decide whether

3 a person has provided adequate proof of insurance

4 based on the evidence presented. Submission of the 6

5 terms of coverage referred to in this paragraph shall

6 be treated as adequate proof of insurance.

7 (3) DEFINITION.—For the purposes of this sub8 section, the term ‘‘good faith investigation’’, used with

9 respect to a company, means a search that can be

10 reasonably conducted in light of the recordkeeping

11 system of the company and the documentary evidence

12 available.

13 (e) PRIOR SETTLEMENTS.—

14 (1) DISCLOSURE.—Each eligible person shall be

15 required to disclose and certify the amounts and

16 terms of any settlement reached with an insurer for

17 eligible costs at eligible facilities. In the event that the

18 terms of such a settlement are subject to a protective

19 order or are otherwise confidential, the eligible person

20 may provide evidence of the confidential nature of the

21 settlement information to the Fund. Upon receipt of

22 such evidence, the Fund shall be obligated to preserve

23 the confidentiality of all such settlement information.
601

•S 1834 RCS1S

1 (2) EFFECT OF TITLE ON PRIOR SETTLE2 MENTS.—This title shall have no effect on prior settle3 ments between eligible persons and an insurer.

4 SEC. 806. AMOUNT OF RESOLUTION OFFERS.

5 (a) RESOLUTION OFFERS.—The Fund shall make reso6 lution offers to each eligible person equal to the applicable

7 percentage (determined under this section) of the lesser of

8 the following:

9 (1) The eligible costs actually incurred by an eli10 gible person.

11 (2) The available coverage, as determined under

12 this section.

13 (b) APPLICABLE PERCENTAGE.—

14 (1) IN GENERAL.—For each eligible person that

15 has not established a litigation venue pursuant to

16 subsection (d), the applicable percentage shall be equal

17 to the facility location percentage for that person. For

18 each eligible person that has established 1 or more

19 litigation venues pursuant to subsection (d), the applicable percentage shall be comprised of 1 20 ⁄3 of the facility location percentage for that person plus 2 21 ⁄3 of

22 the venue percentage for that person.

23 (2) FACILITY LOCATION PERCENTAGE.—

24 (A) ONE OR MORE ELIGIBLE NATIONAL PRI25 ORITIES LIST FACILITIES.—For each eligible per-
602

•S 1834 RCS1S

1 son, the Fund shall establish a facility location

2 percentage. The percentage shall be equal to the

3 weighted average of the State percentages for

4 each eligible National Priorities List facility for

5 which such person has been identified as a poten6 tially responsible party. In determining such

7 weighted average, each such eligible facility shall

8 be accorded equal value, except as provided in

9 paragraph (4).

10 (B) NO ELIGIBLE NATIONAL PRIORITIES

11 LIST FACILITIES.—For each person not identified

12 as a potentially responsible party at 1 or more

13 eligible National Priorities List facilities but

14 who is, or is alleged to be, liable at any time for

15 removal (as defined in section 101(23) of the

16 Comprehensive Environmental Response, Com17 pensation, and Liability Act of 1980 (42 U.S.C.

18 9601(23))) at 1 or more eligible non-National

19 Priorities List facilities, the Fund shall establish

20 a facility location percentage equal to the weight21 ed average of the State percentages for each such

22 eligible non-National Priorities List facility. In

23 determining such weighted average, each such fa24 cility shall be accorded equal value.

25 (3) LITIGATION VENUE PERCENTAGE.—
603

•S 1834 RCS1S

1 (A) ONE OR MORE ELIGIBLE NATIONAL PRI2 ORITIES LIST FACILITIES.—For each eligible per3 son that has established 1 or more litigation

4 venues pursuant to subsection (d) with respect to

5 1 or more eligible National Priorities List facili6 ties, the Fund shall establish a litigation venue

7 percentage. The percentage shall be equal to the

8 weighted average of the State percentages for

9 each eligible National Priorities List facility in

10 each State in which such eligible person has es11 tablished a litigation venue. In determining such

12 weighted average, each eligible National Prior13 ities List facility with respect to which such per14 son has established a litigation venue shall be ac15 corded equal value.

16 (B) NO ELIGIBLE NATIONAL PRIORITIES

17 LIST FACILITIES.—For each eligible person that

18 does not have 1 or more eligible National Prior19 ities List facilities and has established litigation

20 venue with respect to 1 or more eligible non-Na21 tional Priorities List facilities pursuant to sub22 section (d), the Fund shall establish a litigation

23 venue percentage equal to the weighted average of

24 the State percentages for each eligible non-Na25 tional Priorities List facility in each State in
604

•S 1834 RCS1S

1 which such eligible person has established a liti2 gation venue. In determining such weighted av3 erage, each eligible non-National Priorities List

4 facility with respect to which litigation venue

5 has been established shall be accorded equal

6 value.

7 (4) EXTRA WEIGHTING OF LARGE FACILITIES.—

8 In determining the facility location percentage under

9 paragraph (2)(A), the Fund shall count a facility

10 twice for weighting purposes if—

11 (A) the facility is located in the same State

12 as the State in which litigation venue has been

13 established;

14 (B) the facility is included in the eligible

15 person’s coverage litigation in that venue; and

16 (C) total response costs incurred plus esti17 mated response costs exceed $50,000,000, as es18 tablished by governmental cost summaries or de19 mands, records or decision, or evidence satisfac20 tory to the Fund of costs actually incurred.

21 (c) STATE PERCENTAGE.—

22 (1) CONGRESSIONAL FINDINGS.—Congress finds

23 that—

24 (A) as of January 1, 1994, State law gen25 erally is more favorable to eligible persons that
605

•S 1834 RCS1S

1 pursue claims concerning eligible costs against

2 insurers in some States;

3 (B) State law generally is more favorable to

4 insurers with respect to such claims in some

5 States;

6 (C) in some States the law generally favors

7 neither insurers nor eligible persons with respect

8 to such claims or that there is insufficient infor9 mation to determine whether such law generally

10 favors insurers or eligible persons with respect to

11 such claims; and

12 (D) considerations of equity and fairness re13 quire that resolution offers made by the Fund

14 shall vary to reflect the relative state of the law

15 among the several States.

16 (2) STATE PERCENTAGE CATEGORIES.—For pur17 poses of this section, the States are classified into the

18 following percentage categories:

19 (A) 20 PERCENT.—The State percentage

20 shall be 20 percent for Florida, Maine, Mary21 land, Massachusetts, Michigan, New York, North

22 Carolina, and Ohio.

23 (B) 60 PERCENT.—The State percentage

24 shall be 60 percent for California, Colorado,
606

•S 1834 RCS1S

1 Georgia, Illinois, New Jersey, Washington, West

2 Virginia, and Wisconsin.

3 (C) 40 PERCENT.—For all other States the

4 State percentage shall be 40 percent.

5 (d) LITIGATION VENUE.—For purposes of this section,

6 litigation venue is considered established with respect to an

7 eligible person if—

8 (1) on or before December 31, 1993, the eligible

9 person had filed a complaint, or third-party com10 plaint, in a court of competent jurisdiction against

11 an insurer with respect to eligible costs at any part

12 of an eligible facility; and

13 (2) no motion to change venue with respect to

14 such complaint was pending on January 31, 1994.

15 (e) AVAILABLE COVERAGE.—

16 (1) IN GENERAL.—The Fund shall determine the

17 available coverage for each eligible person by adding

18 the unexhausted limits of liability contained in all

19 valid insurance contracts of insurance (including per

20 occurrence, aggregate, primary, excess, or other lim21 its) and then by subtracting the total of all

22 deductibles and self-insured retentions applicable to

23 those policies. In calculating the available coverage

24 and the average deductible pursuant to section 808(c),

25 the Fund shall exclude any deductible or self-insured
607

•S 1834 RCS1S

1 retention contained in a policy that has already been

2 paid by the eligible person.

3 (2) PER OCCURRENCE BASIS POLICIES.—For in4 surance policies with limits or deductibles, or self-in5 sured retentions, expressed on a per occurrence basis

6 without an aggregate limit, the limit or deductible,

7 and the self-insured retention, shall be an amount

8 equal to the limit or deductible, and the self-insured

9 retention, respectively, in the policy multiplied by the

10 number of eligible facilities of the eligible person and

11 by the number of years the policy was in effect. Per

12 occurrence limits or deductibles may be adjusted by

13 the Fund whenever there is an increase in the eligible

14 facilities attributable to an eligible party.

15 (f) ADJUSTMENT FOR OWNED PROPERTY SITES.—

16 (1) ADJUSTMENT.—If an eligible person seeks

17 payment of eligible costs for an owned property site,

18 the percentage paid for such site shall be calculated

19 by multiplying by 70 percent the applicable percent20 age determined under section 806(b)(1) that would

21 otherwise be applicable to such eligible costs (includ22 ing eligible costs for offsite contamination attributable

23 to the owned property), except that the percentage

24 paid for such site shall not be less than the applicable
608

•S 1834 RCS1S

1 percentage determined under section 806(b)(1) minus

2 12 percentage points.

3 (2) DEFINITIONS.—For purposes of this sub4 section:

5 (A) OWNED PROPERTY SITE.—A facility

6 shall be considered an owned property site if—

7 (i) an eligible person owned or leased

8 the facility at the time of initial disposal or

9 a predecessor company owned or leased the

10 facility at the time of initial disposal and

11 the predecessor company merged into an eli12 gible person or became the wholly owned

13 subsidiary of an eligible person;

14 (ii) the property owned or leased by

15 the eligible person or predecessor company

16 represents all or a substantial portion of the

17 facility as specifically designated on the Na18 tional Priorities List or as subject to a re19 moval covered by this title;

20 (iii)(I) an eligible person or prede21 cessor company generated substantially all

22 of the hazardous substances that were dis23 posed of during the period such person or

24 predecessor owned or leased the facility; or
609

•S 1834 RCS1S

1 (II) an eligible person or predecessor

2 company owned a landfill or other unit that

3 is part of the property on which a manufac4 turing or industrial facility is situated, the

5 landfill or other unit was used for the treat6 ment, storage, or disposal of waste generated

7 from the manufacturing or industrial facil8 ity and from third parties, and the landfill

9 or other unit contains waste that is not pri10 marily municipal solid waste or sewage

11 sludge, as defined in paragraphs (41) and

12 (49), respectively, of section 101 of the Com13 prehensive Environmental Response, Com14 pensation, and Liability Act of 1980 (42

15 U.S.C. 9601); and

16 (iv) the hazardous substances associ17 ated with the owned property, either by the

18 initial disposal or subsequent disposal, con19 stitute the basis for liability at the facility.

20 (B) PROPERTY NOT CONSIDERED OWNED

21 PROPERTY.—A facility shall not be considered

22 owned property of an eligible person for purposes

23 of this section when the eligible person acquired

24 the facility from, or acquired the assets of, a

25 company that engaged in initial disposal of haz-
610

•S 1834 RCS1S

1 ardous substances at the facility and the eligible

2 person did not engage in initial disposal of haz3 ardous substances at the facility during its pe4 riod of ownership. An owned property site shall

5 not include a public or commercial landfill pri6 marily used for disposal, storage, or treatment of

7 municipal solid waste or sewage sludge, as de8 fined in paragraphs (41) and (49), respectively,

9 of section 101 of the Comprehensive Environ10 mental Response, Compensation, and Liability

11 Act of 1980 (42 U.S.C. 9601).

12 (C) INITIAL DISPOSAL.—For purposes of

13 this paragraph, the term ‘‘initial disposal’’

14 means the spilling, pumping, pouring, emitting,

15 emptying, discharging, injecting, dumping, dis16 posing, placing, or leaking of hazardous sub17 stances into the environment caused by the facil18 ity owner but does not include—

19 (i) any continuing or further leaking,

20 escaping, or leaching of hazardous sub21 stances into the environment during subse22 quent periods of ownership that was not

23 caused by the acts of a subsequent owner, or

24 (ii) any activities undertaken by an

25 owner related to response at the facility.
611

•S 1834 RCS1S

1 The term ‘‘initial disposal’’ shall not be con2 strued to mean only a single event, but means an

3 event that may occur with each subsequent owner

4 of a facility.

5 SEC. 807. ACCEPTANCE OF RESOLUTION OFFER.

6 (a) ACCEPTANCE.—

7 (1) ELECTION TO ACCEPT.—An eligible person

8 may, when submitting a request for a resolution to

9 the Fund, make a written irrevocable election to ac10 cept any resolution to be made by the Fund.

11 (2) NOTIFICATION.—An eligible person that does

12 not make an election pursuant to paragraph (1) shall,

13 within 60 days after the receipt of a resolution offer

14 from the Fund, notify the Fund in writing of its ir15 revocable acceptance or rejection of such offer. An eli16 gible person who does not so accept or reject a resolu17 tion offer within 60 days shall be deemed to have

18 made an irrevocable election to reject the offer and the

19 provisions of section 809 (relating to rejection of offer)

20 shall apply.

21 (b) ACCEPTANCE OR REJECTION PRIOR TO OFFER.—

22 Upon expiration of the 60-day period immediately follow23 ing the date of enactment of this Act, any eligible person

24 may notify the Fund that such eligible person accepts or

25 rejects any offer to be issued by the Fund under this title.
612

•S 1834 RCS1S

1 Any such notice shall be signed by a duly authorized officer

2 of the eligible person, as certified by the secretary of the

3 eligible person or by a person with equivalent authority.

4 (c) WAIVER OF INSURANCE CLAIMS.—Any eligible per5 son accepting a resolution offer from the Fund shall agree

6 in writing, subject to reinstatement described in subsection

7 (d), to waive, stay, or dismiss any of its existing and future

8 claims against any insurer for eligible costs, including bad

9 faith claims pertaining to actions to recover eligible costs,

10 except that this waiver shall not apply to actions brought

11 against insolvent insurers or under environmental impair12 ment liability insurance.

13 (d) REINSTATEMENT OF INSURANCE CLAIMS.—If the

14 Fund fails to timely fulfill its obligations to an eligible per15 son under the terms of an accepted resolution offer, such

16 eligible person shall be entitled to reinstate any of its exist17 ing and future claims under a contract for insurance with

18 respect to eligible costs. A shortfall provided for in section

19 808(f) shall not be considered a failure of the Fund to time20 ly fulfill its obligations. Whenever any claim is reinstated

21 under this subsection, the person making such claim shall

22 not be treated as rejecting a resolution offer under section

23 809.

24 (e) GOOD FAITH ACCEPTANCE.—The acceptance by an

25 eligible person of a resolution offer under subsection (a) or
613

•S 1834 RCS1S

1 (b) of section 807 and the waiver of any existing or future

2 claims against an insurer under this section shall constitute

3 the good faith pursuit and resolution of such claims, shall

4 be considered prudent action to minimize the cost exposure

5 of that person, and the amount of the resolution offer shall

6 be considered a reasonably available insurance recovery.

7 SEC. 808. RESOLUTION PAYMENTS.

8 (a) TIME OF PAYMENT; PRE-RESOLUTION COSTS.—

9 The Fund shall make equal annual payments over a period

10 of 10 years for the applicable percentage of eligible costs

11 incurred by an eligible person on or before the date such

12 person accepts a resolution offer. The Fund may, in its sole

13 discretion, make such payments over a shorter period if the

14 aggregate eligible costs do not exceed $50,000. An eligible

15 person shall submit to the Fund documentation of such costs

16 as the Fund may require. The initial payment to an eligible

17 person under this paragraph shall be made not later than

18 60 days after the receipt of documentation satisfactory to

19 the Fund. For eligible facilities that are the subject of insur20 ance coverage litigation or arbitration, interest shall begin

21 to accrue on amounts payable pursuant to a resolution offer

22 commencing on the date on which the eligible person accepts

23 the offer pursuant to subsection (a) or (b) of section 807.

24 For all other eligible facilities, interest shall not accrue on

25 amounts payable pursuant to a resolution offer during the
614

•S 1834 RCS1S

1 5-year period beginning on the date of enactment of this

2 Act. In each year, after the commencement of the payment

3 of interest as specified above, interest shall accrue on the

4 unpaid balance of the pre-resolution costs in an amount

5 equal to the rate of interest on 1-year Treasury bills issued

6 on the anniversary of such date of enactment or, if no bills

7 were issued on such date, on the last date such bills were

8 issued prior to such anniversary.

9 (b) TIME OF PAYMENT; POST-RESOLUTION COSTS.—

10 The Fund shall make payments for eligible costs incurred

11 by an eligible person after the date such person accepts a

12 resolution offer to the eligible person, or to a contractor or

13 other person designated by the eligible person, subject to

14 such documentation as the Fund may require. Payments

15 under this title shall be made not later than 60 days after

16 the receipt of documentation (satisfactory to the Fund) with

17 respect to such costs.

18 (c) ADJUSTMENT FOR DEDUCTIBLE OR SELF-INSUR19 ANCE.—In the case of an eligible person that has submitted

20 to the Fund, as proof of status as an eligible person, a valid

21 insurance contract subject to a self-insured retention or a

22 deductible, payment to such eligible person pursuant to a

23 resolution shall be reduced once by an amount equal to the

24 average of the amounts of self-insured retentions and

25 deductibles in all valid insurance contracts of insurance of
615

•S 1834 RCS1S

1 the eligible person. For purposes of determining such aver2 age in the case of a per occurrence deductible or self-insured

3 retention, the Fund shall only count such deductible or self4 insured retention once for each policy year.

5 (d) ADJUSTMENT FOR CERTAIN DUTY-TO-DEFEND

6 COSTS.—If an insurer has incurred and paid costs pursu7 ant to a duty-to-defend clause contained in a contract for

8 insurance, and such costs are the subject of a dispute be9 tween the eligible person and an insurer, the Fund shall

10 reduce payment of a resolution to an eligible person by an

11 amount equal to such costs and pay such amount to the

12 insurer. If such costs were paid by the insurer on or before

13 the date the eligible person accepted a resolution offer made

14 by the Fund, payment to an insurer under this section shall

15 be made in equal annual installments over a period of 10

16 years, and interest shall not accrue with respect to such

17 costs. The Fund may, in its sole discretion, make such pay18 ments over a shorter period if the aggregate costs do not

19 exceed $50,000.

20 (e) EFFECT OF PAYMENTS.—

21 (1) IN GENERAL.—Payments made to an eligible

22 person by the Fund pursuant to a resolution offer

23 shall be treated as payments made by an insurer in

24 satisfaction of the terms and conditions of a contract

25 of insurance. Such payments shall be allocated pro
616

•S 1834 RCS1S

1 rata to each year in which proof of insurance has

2 been established. The amount allocated to each cov3 erage year shall be allocated 100 percent to the pri4 mary coverage until it is exhausted and then 100 per5 cent to each successively higher layer of coverage until

6 each such layer is exhausted.

7 (2) RECOVERY.—No insurer shall be allowed to

8 collect recovery pursuant to a reinsurance contract on

9 the basis of a payment by the Fund unless such rein10 surer is not subject to the fees under the appropriate

11 section of the Internal Revenue Code of 1986 or has

12 not satisfied its obligations pursuant to such fees.

13 (3) PROHIBITION ON RETROSPECTIVE RATING.—

14 Payments made to an eligible person by the Fund

15 pursuant to a resolution offer shall not be subject to

16 retrospective rating under a valid insurance contract.

17 (f) SHORTFALL.—If, in any year during the first 10

18 years after the date of enactment of this Act, the Chair19 person of the Board does not have sufficient funds available

20 to pay all eligible costs of resolution offers accepted by eligi21 ble persons, the Fund shall determine the amount of the

22 costs that cannot be paid in that year (referred to in this

23 title as a ‘‘shortfall’’). The Fund shall allocate the shortfall

24 to the eligible persons in proportion to the size of their pend25 ing claims for reimbursement from the Fund. This shortfall
617

•S 1834 RCS1S

1 shall be paid to the eligible person and shall be amortized

2 over the next 5 years, and the amortized amount shall be

3 paid with interest at the rate specified for the amortization

4 of past costs. A shortfall that is being amortized under this

5 subsection shall not be considered a default by the Fund,

6 triggering the reinstatement of claims.

7 (g) INTERIM ALLOCATIONS.—An eligible person ac8 cepting an offer of resolution shall be entitled to receive pay9 ment of all eligible costs that have been incurred. If an eligi10 ble person obtains reimbursement of such eligible costs as

11 a result of a final allocation, contribution action, or other12 wise, the eligible person shall notify the Fund of the amount

13 of the reimbursement and shall either—

14 (1) reduce its next claim to the Fund for pay15 ment of eligible costs by the amount of the reimburse16 ment; or

17 (2) refund the amount of the reimbursement.

18 SEC. 809. REJECTION OF RESOLUTION OFFER AND REIM19 BURSEMENT TO INSURER.

20 (a) INSURER ACTION AGAINST ELIGIBLE PERSON.—

21 (1) LIABILITY FOR LITIGATION COSTS.—Any eli22 gible person that rejects a resolution offer (including

23 a person who makes an early rejection pursuant to

24 section 807(b)), litigates a claim with respect to in25 surance coverage of eligible costs against an insurer,
618

•S 1834 RCS1S

1 and obtains a final judgment that is determined by

2 the court with jurisdiction over such litigation to be

3 less favorable than the resolution offered by the Fund

4 (or, in the case of a rejection pursuant to section

5 807(b), the amount that the Fund would have of6 fered), shall be liable to such insurer for 40 percent

7 of the reasonable attorney’s fees, other litigation costs,

8 and direct costs, incurred after the date of the resolu9 tion offer by the insurance companies that are attrib10 utable to eligible costs at eligible facilities.

11 (2) LIMIT OF LIABILITY.—Liability of an eligible

12 person under paragraph (1) shall not exceed 160 per13 cent of all of the attorney’s fees, other litigation costs,

14 and direct costs of company in-house personnel, in15 curred after such date by an eligible person in the

16 pursuit of its coverage litigation that are attributable

17 to eligible costs at eligible facilities.

18 (3) ACTIONS TO RECOVER LITIGATION COSTS.—

19 A court having jurisdiction over any action regarding

20 a claim of insurance shall have original jurisdiction

21 of all actions under this subsection. The court shall

22 reduce any award to an insurer in any such action

23 by the amount, if any, of the costs and fees described

24 in paragraph (1) or (2), as the case may be, and re25 covered by the insurer pursuant to State law or court
619

•S 1834 RCS1S

1 rule. Nothing in this subsection shall be construed to

2 limit or affect in any way the application of State

3 law, or the rule of any court, to such costs or fees.

4 Upon application by a party to any such action, the

5 court may make all determinations necessary to de6 cide whether an award of fees or costs is required

7 hereunder, including the value of the offer made by

8 the Fund and whether the attorney’s fees or litigation

9 costs of any insurer were unreasonable. If the court

10 determines that certain fees or costs were unreason11 able, the court shall exclude such fees or costs from the

12 calculation described in paragraph (1) or (2), as the

13 case may be.

14 (b) REIMBURSEMENT TO INSURER.—If an eligible per15 son rejects a resolution offer (including a rejection pursuant

16 to section 807(b)), litigates a claim with respect to eligible

17 costs against 1 or more insurers, and obtains a final judg18 ment against, or enters into a settlement with, any such

19 insurer, the Fund—

20 (1) shall reimburse to such insurer or insurers

21 the lesser of the amount of the resolution offer made

22 to the eligible person (or, in the case of a rejection

23 pursuant to section 807(b), the amount that the Fund

24 would have offered) or the final judgment or settle25 ment; and
620

•S 1834 RCS1S

1 (2) may, if the resolution offer exceeded the final

2 judgment or settlement, reimburse the insurer or in3 surers for unrecovered reasonable costs and legal fees,

4 except that the total reimbursement under this sub5 section may not exceed the amount of the resolution

6 offer to the eligible person (or, in the case of a rejec7 tion pursuant to section 807(b), the amount that the

8 Fund would have offered).

9 Reimbursements pursuant to this subsection shall be subject

10 to such documentation as the Fund may require and shall

11 be made by the Fund not later than 60 days after receipt

12 by the Fund of a complete request for reimbursement satis13 factory to the Fund.

14 (c) REFUSAL TO MAKE RESOLUTION OFFER.—Except

15 with respect to a person that rejects a resolution offer pursu16 ant to section 807(b), no eligible person that has not re17 ceived a resolution offer shall be treated as rejecting an offer

18 for purposes of this section.

19 SEC. 810. FINANCIAL CONTROLS; AUDITS, INVESTIGATIONS

20 AND INSPECTIONS.

21 (a) IN GENERAL.—

22 (1) SPECIAL FUND ACCOUNT.—

23 (A) IN GENERAL.—Except as may be ex24 pressly authorized by the Secretary of the Treas25 ury, amounts equal to all fees and assessments
621

•S 1834 RCS1S

1 collected pursuant to the appropriate section of

2 the Internal Revenue Code of 1986 shall be

3 maintained in the Treasury of the United States

4 in a Special Fund Account (referred to in this

5 subsection as the ‘Account’). Amounts deposited

6 into such Account shall be considered to be budg7 et receipts and withdrawals from such Account

8 shall be considered to be budget outlays, for pur9 poses of the Congressional Budget Act of 1974.

10 (B) INVESTMENT.—The Secretary of the

11 Treasury shall invest amounts in the Account

12 not needed to fund withdrawals from the Account

13 in interest bearing securities of the United

14 States. Interest earned from such investments

15 shall be credited to the Account. Such securities

16 shall be redeemed as necessary to fund withdraw17 als from the Account.

18 (C) USE.—No amounts shall be deposited in

19 or credited to the Account except as provided in

20 this paragraph. All expenditures by or on behalf

21 of the Fund shall be paid out of amounts in such

22 Account.

23 (2) WITHDRAWALS FROM ACCOUNT.—

24 (A) CERTIFICATION.—Subject to section

25 803(d)(3)(B), all amounts withdrawn from the
622

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1 Account by or on behalf of the Fund shall be cer2 tified by a federally authorized certifying officer

3 who is an employee of a Federal agency rep4 resented by a governmental member of the

5 Board.

6 (B) OTHER TERMS.—The Secretary of the

7 Treasury may prescribe such other procedures,

8 terms, and conditions governing withdrawals

9 from the Account as the Secretary considers to be

10 appropriate.

11 (b) ANNUAL BUDGETS.—The Fund shall prepare an12 nual budgets consistent with the requirements of section

13 9103 of title 31, United States Code. Not later than March

14 31 of each year, the Chairperson of the Board shall transmit

15 to the Committee on Environment and Public Works of the

16 Senate and the Committee on Energy and Commerce of the

17 House of Representatives a budget for the following fiscal

18 year.

19 (c) AUDITS OF RESOLUTION OFFERS AND PAY20 MENTS.—

21 (1) IN GENERAL.—The regulations required by

22 section 812(a) shall provide that each request for a

23 resolution payment that exceeds such amount as the

24 Board may determine shall be accompanied by an

25 independent audit of such request.
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1 (2) RANDOM AUDITS.—

2 (A) IN GENERAL.—The Fund shall provide

3 for the random audit of requests for resolution

4 offers and requests for resolution payments.

5 (B) OVERPAYMENTS OR UNDERPAYMENTS.—

6 To the extent the Fund determines, on the basis

7 of an audit or otherwise, that an overpayment or

8 underpayment has been made in connection with

9 a resolution offer, the Fund shall decrease or in10 crease (as the case may be) subsequent payments

11 pursuant to such offer.

12 (C) REFERRAL OF CERTAIN REQUESTS.—

13 The Board shall refer to the Attorney General

14 any request for a resolution offer or resolution

15 payment that the Board determines, on the basis

16 of an audit or otherwise, may be subject to the

17 penalties described in section 813(b).

18 (d) FINANCIAL STATEMENTS.—The financial state19 ments of the Fund shall be prepared in accordance with

20 generally accepted accounting principles and shall be au21 dited annually by an independent certified public account22 ant in accordance with the auditing standards issued by

23 the Comptroller General. Such auditing standards shall be

24 consistent with the private sector’s generally accepted audit25 ing standards.
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1 (e) INVESTIGATIONS AND OTHER AUDITS.—The In2 spector General of the Environmental Protection Agency is

3 authorized to conduct such audits and investigations of the

4 activity of the Fund as the Inspector General determines

5 to be necessary or appropriate. For purposes of the preced6 ing sentence, the provisions of the Inspector General Act of

7 1978 (5 U.S.C. App.) shall apply to the Fund and to the

8 Inspector General to the same extent as they apply to the

9 Environmental Protection Agency.

10 SEC. 811. STAY OF PENDING LITIGATION.

11 (a) ENACTMENT OPERATES AS STAY.—Except as pro12 vided in this section, enactment of this title shall operate

13 as a stay, applicable to all persons other than the United

14 States, of the commencement or continuation, including the

15 issuance or employment of process or service of any plead16 ing, motion, or notice, of any judicial, administrative, or

17 other action with respect to claims for indemnity or other

18 claims arising from a valid insurance contract of qualified

19 insurance concerning insurance coverage for eligible costs.

20 (b) ACTIONS NOT AFFECTED.—Nothing in this title

21 shall be construed to authorize a stay of any of the follow22 ing:

23 (1) Any action involving claims that do not con24 cern eligible costs or a valid insurance contract of

25 qualified insurance. Any such claim shall be severed
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1 by operation of law from claims involving eligible

2 costs or valid contracts of insurance of qualified in3 surance, and the insured party may proceed with the

4 prosecution of the severed claims not involving eligible

5 costs or not involving qualified insurance.

6 (2) Any action for which a trial date has been

7 scheduled prior to June 1, 1994, for a trial to com8 mence during the 60-day period immediately follow9 ing the date of enactment of this Act.

10 (3) Any action in which a trial has begun prior

11 to such period and has continued without interrup12 tion into such period.

13 (c) TERMINATION OF STAY.—

14 (1) EVENTS.—The stay established by subsection

15 (a) shall terminate with respect to an eligible person

16 upon the earliest of the following:

17 (A) The rejection of a resolution offer (in18 cluding an early rejection) by such eligible per19 son pursuant to section 807.

20 (B) A determination by the Fund that an

21 offer will not be made to such eligible person or

22 that such person is not an eligible person.

23 (C) A determination pursuant to section

24 816(b) that the minimum participation level has

25 not been achieved.
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1 (D) A failure by the Fund at any time after

2 the date that is 10 years after the date of enact3 ment of this Act to timely pay to such eligible

4 person a resolution payment equal to the total

5 amount of eligible costs (including shortfalls

6 from prior years) required to be paid to such

7 person under a resolution offer in any year after

8 such date.

9 (2) PERSONS.—The stay established by sub10 section (a) shall terminate on the date that is 10

11 years after the date of enactment of this Act with re12 spect to—

13 (A) a person that becomes an eligible person

14 on or after such date; and

15 (B) an eligible person that has not filed a

16 request for a resolution offer and has not rejected

17 a resolution offer pursuant to section 807(b) be18 fore such date.

19 (d) AUTHORITY OF UNITED STATES UNAFFECTED.—

20 Nothing in this section shall be construed to limit or affect

21 in any way the discretion or authority of the United States

22 or any party to commence or continue any allocation proc23 ess, cost recovery, or other action pursuant to the authority

24 of sections 101 through 122, and 129, of the Comprehensive
627

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1 Environmental Response, Compensation, and Liability Act

2 of 1980 (42 U.S.C. 9601 et seq.).

3 (e) STATUTE OF LIMITATION TOLLED.—Notwithstand4 ing any other provision of Federal or State law, any Fed5 eral or State statute of limitation concerning the filing or

6 prosecution of an action by an eligible person against an

7 insurer, or by an insurer against an eligible person, with

8 respect to eligible costs shall be tolled during the pendency

9 of the stay of pending litigation established by this title.

10 SEC. 812. REGULATIONS.

11 (a) PROCEDURES AND DOCUMENTATION.—Not later

12 than 120 days after the date of enactment of this Act, the

13 Chairperson of the Board shall publish in the Federal Reg14 ister for public comment of not more than 60 days interim

15 final regulations concerning procedures and documentation

16 for the submission of requests for resolution offers and the

17 payment of accepted resolution offers. Not later than 60

18 days after the close of the public comment period, the Chair19 person of the Board shall publish in the Federal Register

20 final regulations concerning such procedures and docu21 mentation, which may be amended by the Chairperson from

22 time to time. The Fund in its discretion may require that

23 requests for resolution offers made before the issuance of

24 final regulations pursuant to this subsection be revised to

25 conform to the requirements of such final regulations.
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1 (b) OTHER REGULATIONS.—The Fund may prescribe

2 such other regulations, rules, and procedures as the Fund

3 determines to be appropriate from time to time.

4 (c) JUDICIAL REVIEW.—No regulation, rule, or proce5 dure prescribed by the Fund shall be subject to review by

6 any court except to the extent such regulation, rule, or pro7 cedure is not consistent with a provision of this title. No

8 resolution offer made by the Fund shall be subject to review

9 by any court.

10 SEC. 813. COURT JURISDICTION AND PENALTIES.

11 (a) JURISDICTION OF FEDERAL COURTS.—Notwith12 standing section 1349 of title 28, United States Code—

13 (1) the Fund shall be deemed to be an agency of

14 the United States for purposes of sections 1345 and

15 1442 of title 28, United States Code;

16 (2) all civil actions to which the Fund is a party

17 shall be deemed to arise under the laws of the United

18 States, and the district courts of the United States

19 shall have original jurisdiction of all such actions,

20 without regard to amount or value;

21 (3) any civil or other action, case or controversy

22 in a court of a State, or in any court other than a

23 district court of the United States, to which the Fund

24 is a party may at any time before the trial thereof

25 be removed by the Fund, without the giving of any
629

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1 bond or security, to the district court of the United

2 States for the district and division embracing the

3 place where the same is pending or, if there is no such

4 district court, to the district court of the United

5 States for the district in which the principal office of

6 the Fund is located, by following any procedure for

7 removal of causes in effect at the time of such re8 moval; and

9 (4) no attachment or execution shall be issued

10 against the Fund or any of its property before final

11 judgment in any Federal, State, or other court.

12 (b) FALSE OR FRAUDULENT STATEMENTS OR

13 CLAIMS.—

14 (1) CRIMINAL PENALTIES.—

15 (A) FALSE, FICTITIOUS, OR FRAUDULENT

16 CLAIMS; BRIBERY.—For purposes of section 287

17 of title 18, United States Code, the Fund shall

18 be considered an agency of the United States and

19 any officer or employee of the Fund shall be con20 sidered a person in the civil service of the United

21 States.

22 (B) FRAUD AND FALSE STATEMENTS.—For

23 purposes of section 1001 of title 18, United

24 States Code, the Fund shall be considered an

25 agency of the United States.
630

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1 (C) BRIBERY.—For purposes of section 201

2 of title 18, United States Code, the Fund shall

3 be considered an agency of the United States,

4 and a member of the Board and any officer or

5 employee of the Fund shall be considered to be an

6 officer or employee or person acting for or on be7 half of an agency of the United States.

8 (2) CIVIL PENALTIES.—Officers and employees of

9 the Fund shall be considered officers and employees of

10 the United States for purposes of section 3729 of title

11 31, United States Code.

12 SEC. 814. MISCELLANEOUS PROVISIONS.

13 (a) ADMISSIBILITY OF RESOLUTION OFFER.—No reso14 lution offered by the Fund shall be admissible in any legal

15 action brought by an eligible person against an insurer or

16 by an insurer against an eligible person.

17 (b) RESOLUTION PROCESS NOT ADMISSION OF LIABIL18 ITY.—No provision of this title, and no action by an eligible

19 person undertaken in connection with any provision of this

20 title, shall in any way constitute an admission of liability

21 in connection with the disposal of a hazardous substance.

22 (c) PRECEDENTIAL EFFECT.—No provision of this title

23 shall affect or be construed to establish a precedent with

24 respect to any insurance dispute between any person and

25 insurer not subject to a stay under this title.
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1 (d) SOVEREIGN IMMUNITY OF THE UNITED STATES.—

2 No obligation or liability of the Fund shall constitute an

3 obligation or liability of the United States, or of any de4 partment, agency, instrumentality, officer, or employee

5 thereof. No person shall have a cause of action of any kind

6 against the United States, or any department, agency, in7 strumentality, officer, or employee thereof with respect to

8 any obligation, liability, or activity of the Fund.

9 SEC. 815. REPORTS.

10 (a) REPORT ON POTENTIAL FOR ESCALATION OF

11 EIRF LIABILITY.—Not later than the end of the 5th year

12 after the date of enactment of this Act, the President shall

13 submit a report to Congress assessing the potential liability

14 of the Fund over the next 5-year period. The report shall

15 include recommendations for amendments to address any

16 shortfalls between the projected potential liability of the

17 Fund and the amounts authorized to be raised over such

18 5-year period.

19 (b) REPORT ON NON-NATIONAL PRIORITIES LIST FA20 CILITIES.—The President shall conduct a study of the num21 ber of non-National Priorities List facilities and the aver22 age cleanup cost per non-National Priorities List facility

23 and shall report his findings not later than 3 years after

24 the date of enactment of this Act.

25 (c) ANNUAL REPORTS.—
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•S 1834 RCS1S

1 (1) IN GENERAL.—The Fund shall report annu2 ally to the President and Congress not later than

3 January 15 of each year on its activities for the prior

4 fiscal year. The report shall include—

5 (A) a financial statement audited by an

6 independent auditor; and

7 (B) a determination of whether the fees and

8 assessments imposed by the appropriate section

9 of the Internal Revenue Code of 1986 will be suf10 ficient to meet the anticipated obligations of the

11 Fund.

12 (2) APPEARANCES BEFORE CONGRESS.—Not

13 later than 60 days after the submission of each an14 nual report required by paragraph (1), the members

15 of the Board shall appear before the Committee on

16 Environment and Public Works of the Senate and the

17 Committee on Energy and Commerce of the House of

18 Representatives to report on the matters contained in

19 the annual report and such other matters concerning

20 the Fund as each such committee may require.

21 (d) SPECIAL REPORTS.—The Fund shall promptly re22 port to the President and Congress at any time the Fund

23 determines that the fees and assessments imposed by the ap24 propriate section of the Internal Revenue Code of 1986 will
633

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1 be insufficient to meet the anticipated obligations of the

2 Fund.

3 SEC. 816. EFFECTIVE DATE.

4 (a) IN GENERAL.—This title shall take effect on the

5 date of enactment of this Act.

6 (b) MINIMUM PARTICIPATION LEVEL BY ELIGIBLE

7 PERSONS.—

8 (1) IDENTIFICATION OF ELIGIBLE PERSONS.—

9 (A) SUBMISSION OF LIST.—Each insurance

10 company providing coverage to eligible persons

11 under a valid insurance contract shall submit to

12 the Fund, within 30 days after the date of enact13 ment of this Act, a list of all eligible persons that

14 have filed suit against that company for eligible

15 costs, or that have made a claim against that

16 company for eligible costs and are actively pur17 suing such claim.

18 (B) NOTIFICATION.—Each insurance com19 pany submitting such list to the Fund shall im20 mediately notify each eligible person that is

21 identified on the list and provide to each such el22 igible person a copy of this title together with an

23 explanation of this subsection.

24 (2) RESPONSE TO THE FUND.—Each eligible

25 person notified pursuant to paragraph (1) shall re-
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1 spond to the Fund by either filing a declaration of in2 tent or by requesting an applicable percentage.

3 (3) DECLARATION OF INTENT.—Unless the eligi4 ble person files a request for an applicable percentage

5 under paragraph (4), the eligible person shall file a

6 declaration of intent not earlier than 60 days, and

7 not later than 90 days, after the date of enactment of

8 this Act. A declaration of intent filed by the eligible

9 person shall—

10 (A) state whether or not such eligible person

11 intends to accept participation in the Fund; and

12 (B) identify each eligible National Prior13 ities List facility for which such person has been

14 identified as a potentially responsible party,

15 whether or not such eligible person intends to ac16 cept participation in the Fund.

17 A declaration of intent to accept participation in the

18 Fund shall constitute acceptance of a Fund offer for

19 purposes of this title.

20 (4) REQUEST FOR APPLICABLE PERCENTAGE.—

21 Each eligible person identified on a list under para22 graph (1) may file a request for its applicable per23 centage (as determined under section 806(b)) with the

24 Fund within 60 days after the date of enactment of

25 this Act. A request filed by an eligible person shall—
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•S 1834 RCS1S

1 (A) identify each eligible National Prior2 ities List facility (including the State in which

3 such facility is located) at which such eligible

4 person has incurred or will incur eligible costs;

5 and

6 (B) in the case of an eligible person that

7 has established at least 1 litigation venue pursu8 ant to section 806(d), identify the State or States

9 in which such venue has been established and

10 identify any National Priorities List facility de11 scribed in section 806(b)(4) (relating to large

12 sites) at which such eligible person has incurred

13 or will incur eligible costs.

14 (5) RENOTIFICATION OF ELIGIBLE PERSONS.—

15 Within 90 days after the date of enactment of this

16 Act, the Fund shall notify (by certified mail, return

17 receipt requested) each eligible person identified on

18 the list under paragraph (1) that did not file a dec19 laration of intent or a request for applicable percent20 age within the time period prescribed in paragraph

21 (3) or (4), as appropriate. Each eligible person noti22 fied pursuant to this paragraph shall respond to the

23 Fund not later than 120 days after the date of enact24 ment of this Act by either filing a declaration of in25 tent in accordance with paragraph (3) or by request-
636

•S 1834 RCS1S

1 ing an applicable percentage in accordance with

2 paragraph (4).

3 (6) RESPONSE BY THE FUND.—The Fund shall

4 respond not later than 150 days after the date of en5 actment of this Act to an eligible person that has

6 made such a request for an applicable percentage. The

7 response from the Fund shall include the applicable

8 percentage, calculated in accordance with section

9 806(b). An eligible person receiving such response

10 from the Fund shall file a declaration of intent with

11 the Fund in accordance with paragraph (3) not later

12 than 180 days after the date of enactment of this Act.

13 (7) MINIMUM PARTICIPATION LEVEL.—

14 (A) DETERMINATION.—Within 210 days

15 after the date of enactment of this Act, the Fund

16 shall determine—

17 (i) the number of eligible persons iden18 tified on the lists submitted under para19 graph (1), and the weighted average of such

20 eligible persons, that have accepted partici21 pation in the Fund; and

22 (ii) the number, and weighted average,

23 of such eligible persons that have rejected

24 participation in the Fund.
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1 An eligible person that has not responded in ac2 cordance with paragraph (2) to an initial notifi3 cation or in accordance with paragraph (5) to a

4 renotification shall be deemed to have irrevocably

5 accepted participation in the Fund for the pur6 poses of this title. An eligible person that has

7 made an early acceptance or rejection pursuant

8 to section 807(b) shall be deemed to have accept9 ed or rejected, as the case may be, its applicable

10 percentage and shall submit the information re11 quired by paragraph (3) not later than 120 days

12 after the date of enactment of this Act.

13 (B) TERMINATION OF PROGRAM.—If more

14 than a weighted average of 20 percent of the eli15 gible persons identified on such list reject par16 ticipation in the Fund, the program under this

17 title and under the insurance fee provisions

18 added by title IX shall terminate, and any fees

19 paid by insurance companies under such provi20 sions that have not been utilized for administra21 tion of the Fund shall be refunded pro rata to

22 those companies.

23 (C) CONDITIONAL TERMINATION OF PRO24 GRAM.—
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1 (i) IN GENERAL.—Except as provided

2 in clause (ii), if more than a weighted aver3 age of 15 percent but not more than a

4 weighted average of 20 percent of the eligi5 ble persons identified on such list reject par6 ticipation in the Fund, the program under

7 this title and under the insurance fee provi8 sions added by title IX shall terminate, and

9 any fees paid by insurance companies

10 under such provisions that have not been

11 utilized for administration of the Fund

12 shall be refunded pro rata to those compa13 nies.

14 (ii) DETERMINATION.—Such program

15 shall not terminate and such fees shall not

16 be refunded if, not later than 225 days after

17 the date of enactment of this Act, the Chair18 person of the Board, in consultation with

19 the other members of the Board, determines

20 that the weighted average of eligible persons

21 that have elected to accept participation in

22 the Fund is likely to substantially eliminate

23 the insurance coverage litigation between

24 insurance companies and eligible persons at

25 a cost that is fair to the companies subject
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1 to the fees imposed by provisions added by

2 title IX.

3 (8) WEIGHTED AVERAGE.—For purposes of this

4 subsection, the weighted average of eligible persons ac5 cepting, or rejecting, participation in the Fund shall

6 be determined by dividing—

7 (A) the product obtained by multiplying—

8 (i) the acceptances or rejections, as ap9 propriate, by eligible persons listed under

10 paragraph (1); by

11 (ii) the number of eligible National

12 Priorities List facilities of the eligible per13 sons accepting or rejecting, as appropriate,

14 such participation (without regard to

15 whether or not any such facility is the sub16 ject of a lawsuit or insurance claim); by

17 (B) the total number of eligible National

18 Priorities List facilities for all persons either ac19 cepting or rejecting such participation.

20 SEC. 817. TERMINATION OF AUTHORITY TO OFFER AND AC21 CEPT RESOLUTION.

22 (a) AUTHORITY TO ACCEPT REQUEST FOR RESOLU23 TION.—The authority of the Fund to accept requests for res24 olution shall terminate on the date that is 10 years after

25 the date of enactment of this Act.
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1 (b) AUTHORITY TO OFFER RESOLUTIONS.—The au2 thority of the Fund to offer resolutions to eligible persons

3 shall terminate after the date that is 10 years and 180 days

4 after the date of enactment of this Act.

5 (c) CONTINUING OBLIGATIONS.—Until termination of

6 the Fund, the Fund shall continue to—

7 (1) make payments pursuant to resolution offers

8 for any eligible facility that is identified at the time

9 of acceptance of the resolution offer or within 10

10 years after the date of enactment of this Act; or

11 (2) reimburse insurers with respect to litigation

12 commenced or continued in connection with a resolu13 tion offer made on or before the date that is 10 years

14 after the date of enactment of this Act, where the reso15 lution offer was rejected by an eligible person or not

16 acted upon by an eligible person.

17 SEC. 818. TERMINATION OF FUND.

18 If, during any 2-year calendar period commencing

19 after the date that is 10 years after the date of enactment

20 of this Act, no eligible person makes a claim to the Fund

21 for payment of eligible costs, the Fund shall terminate, and

22 all amounts remaining in the Fund shall be deposited in

23 the general fund of the Treasury.
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1 TITLE IX—TAXES

2 SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE

3 CODE OF 1986.

4 (a) Section 59A(e)(1) of the Internal Revenue Code

5 of 1986 (26 U.S.C. 59A(e)(1)) is amended by striking

6 ‘‘January 1, 1996’’ and inserting instead ‘‘January 1,

7 2001’’.

8 (b) Section 4611(e) of the Internal Revenue Code of

9 1986 (26 U.S.C. 4611(e)) is amended—

10 (1) in paragraph (1) by striking ‘‘December 31,

11 1986’’ and inserting instead ‘‘December 31, 1995’’;

12 (2) in paragraph (2)—

13 (A) by striking ‘‘December 31, 1993 or

14 December 31, 1994’’ and inserting instead

15 ‘‘December 31, 1998 or December 31, 1999’’;

16 (B) by striking ‘‘December 31, of 1994 or

17 1995, respectively’’ and inserting instead ‘‘De18 cember 31 of 1999 or 2000, respectively’’; and

19 (C) by striking ‘‘1994 or 1995’’ the last

20 place it appears and inserting instead ‘‘1999 or

21 2000’’;

22 (3) in paragraph (3)(A), by striking ‘‘January

23 1, 1987, and ending December 31, 1995’’ and in24 serting instead ‘‘January 1, 1996, and ending De25 cember 31, 2000’’; and
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•S 1834 RCS1S

1 (4) in paragraph (3)(B)—

2 (A) in the title thereof, by striking ‘‘Janu3 ary 1, 1996’’ and inserting ‘‘January 1, 2001’’;

4 and

5 (B) by striking ‘‘Fund before January 1,

6 1996’’ and inserting instead ‘‘Fund before Jan7 uary 1, 2001’’.

8 SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON

9 INSURANCE COMPANIES.

10 (a) IN GENERAL.—The Internal Revenue Code of

11 1986 is amended by inserting after section the follow12 ing new section:

13 ‘‘SEC. . ENVIRONMENTAL FEES AND ASSESSMENTS ON IN14 SURANCE COMPANIES.

15 [RESERVED]’’

16 (b) CLERICAL AMENDMENT.—The table of sections

17 for chapter of the Internal Revenue Code of 1986

18 is amended by inserting after the item relating to section

19 the following:

‘‘Sec. . Environmental Fees and Assessments on Insurance

Companies.’’.

20 SEC. 903. FUNDING PROVISIONS FOR ENVIRONMENTAL IN21 SURANCE RESOLUTION FUND.

22 (a) IN GENERAL.—

23 (1) Except as provided in section 802(f)(7) of

24 this Act, all expenditures of the Resolution Fund
643

•S 1834 RCS1S

1 shall be paid out of the fees and assessments im2 posed by section of the Internal Revenue Code.

3 (2) Except as may be expressly authorized by

4 the Secretary of the Treasury, all funds of the Reso5 lution Fund shall be maintained in the Treasury of

6 the United States. The Secretary may provide for

7 the disbursement of such funds to the Resolution

8 Fund or on behalf of the Resolution Fund under

9 such procedures, terms and conditions as the Sec10 retary may prescribe.

11 (b) TRANSFER TO RESOLUTION FUND.—The Sec12 retary of the Treasury shall transfer to the Resolution

13 Fund on October 1 of fiscal years 1995, 1996, 1997, 1998

14 and 1999, an amount equal to the fees and assessments

15 anticipated to be collected pursuant to section of the

16 Internal Revenue Code of 1986 during the then current

17 fiscal year.

18 (c) ADJUSTMENTS.—In each succeeding fiscal year

19 the Secretary of the Treasury shall adjust the amounts

20 transferred pursuant to paragraph (2) to reflect actual

21 collections of fees and assessments during the prior fiscal

22 year, except that with respect to the transfer made on Oc23 tober 1, 1999, the Resolution Fund shall reimburse the

24 Secretary the amount of such transfer subsequently deter-
644

•S 1834 RCS1S

1 mined by the Secretary to have exceeded actual collections

2 of fees and assessments during such fiscal year.

3 SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.

4 The Resolution Fund, including its capital, reserves,

5 surplus, security holdings, and income shall be exempt

6 from all taxation now or hereafter imposed by the United

7 States (including any territory, dependency or possession

8 thereof) or any State, county, municipality or local taxing

9 authority.

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