II

103D CONGRESS

2D SESSION S. 1994

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 to make comprehensive improvements in provisions

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

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 25 (legislative day, FEBRUARY 22), 1994

Mr. SMITH (for himself, Mr. GREGG, Mr. FAIRCLOTH, and Mr. KEMPTHORNE)

introduced the following bill; which was read twice and referred to the

Committee on Finance

A BILL

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

implementation, remedy selection, and funding, and for

other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Comprehensive

5 Superfund Improvement Act’’.

6 SEC. 2. TABLE OF CONTENTS.

7 The table of contents for this Act is as follows:
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Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—LIABILITY

Sec. 101. Release of evidence.

Sec. 102. Elimination of retroactive liability.

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

Sec. 104. Contribution protection.

Sec. 105. Contiguous properties.

Sec. 106. Lender and fiduciary liability.

Sec. 107. Definitions.

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

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

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

Sec. 111. Site redevelopment.

Sec. 112. Liability of response action contractors.

TITLE II—STATE IMPLEMENTATION

Sec. 201. State authority.

Sec. 202. Transfer of authorities.

Sec. 203. EPA oversight costs.

TITLE III—REMEDY SELECTION

Sec. 301. Immediate risk reduction measures.

Sec. 302. Site scoring.

Sec. 303. Long-term response plan.

Sec. 304. Long-term response selection.

Sec. 305. Periodic review.

Sec. 306. Delisting of facilities and sites.

TITLE IV—FUNDING

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

Sec. 402. Increase in environmental income tax.

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

Sec. 404. Retroactive Liability Fund.

1 TITLE I—LIABILITY

2 SEC. 101. RELEASE OF EVIDENCE.

3 (a) TIMELY ACCESS TO INFORMATION FURNISHED

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

5 Comprehensive Environmental Response, Compensation,

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

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

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

3 (b) REQUIREMENT TO PROVIDE PRPS EVIDENCE OF

4 LIABILITY.—(1) Subsection (a) of section 106 of the Com5 prehensive Environmental Response, Compensation, and

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

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

8 the President issues an order to a person under this sub9 section, the President shall provide information concerning

10 the evidence that indicates that each element of liability

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

12 107(a)(1) is present.’’.

13 (2) Section 122(e)(1) of such Act is amended by in14 serting after subparagraph (C) the following:

15 ‘‘(D) For each potentially responsible

16 party, the evidence that indicates that each ele17 ment of liability contained in subparagraph (A),

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

19 present.’’.

20 SEC. 102. ELIMINATION OF RETROACTIVE LIABILITY.

21 Section 107 of the Comprehensive Environmental Re22 sponse, Compensation, and Liability Act of 1980 (42

23 U.S.C. 9607(a)) is amended by adding at the end the fol24 lowing new subsection:
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1 ‘‘(n) RETROACTIVE LIABILITY CUT-OFF DATE; COST

2 REIMBURSEMENT PROVISIONS.—

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

4 this subsection, a person is liable under this section

5 only for actions occurring after December 11, 1980.

6 The provisions of this subsection shall not apply to

7 actions occurring before December 11, 1980, which

8 were contrary to a law at the time of the actions.

9 Reimbursement or payment from the Retroactive Li10 ability Fund (established by section 9512 of the In11 ternal Revenue Code of 1986) shall be made pursu12 ant to section 508.

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

14 facilities with respect to which all actions for which

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

17 ‘‘(A) CONSTRUCTION COMPLETED.—For

18 such sites or facilities where the construction of

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

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

23 incurred for such construction. If a potentially

24 responsible party is conducting operation and

25 maintenance related to the response action at
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1 the site or facility as of January 1, 1994, the

2 President shall assume the future costs of such

3 operation and maintenance and shall reimburse

4 the party for such costs incurred.

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

6 sites or facilities where the construction of the

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

9 the potentially responsible parties concerned for

10 costs incurred for such construction, but only

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

15 ‘‘(C) DISCOVERY AFTER JANUARY 1,

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

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

21 or other costs associated with litigation related

22 to the response action.

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

24 or facilities with respect to which actions for which

25 liability arising under this Act occurred both before
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1 and after December 11, 1980, the following rules

2 apply:

3 ‘‘(A) CONSTRUCTION COMPLETED.—For

4 such sites or facilities where the construction of

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

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

9 incurred for such construction. If a potentially

10 responsible party is conducting operation and

11 maintenance related to the response action at

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

13 potentially responsible party may, within 90

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

19 which portion of the operation and maintenance

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

23 shall provide for the reimbursement of the po24 tentially responsible party, from the Retroactive
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1 Liability Fund, of those costs attributable to

2 actions occurring before December 11, 1980.

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

4 sites or facilities where the construction of the

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

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

9 A potentially responsible party may, within 90

10 days after construction of the response action is

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

13 construction and operation and maintenance

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

16 maintenance costs are attributable to actions

17 occurring before December 11, 1980, and which

18 are attributable to actions occurring after such

19 date, and shall provide for the reimbursement

20 of the potentially responsible party, from the

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

23 11, 1980.

24 ‘‘(C) DISCOVERY AFTER JANUARY 1,

25 1994.—For such sites or facilities that are dis-
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1 covered after January 1, 1994, the President

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

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

6 December 11, 1980.

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

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

9 or operation of a facility at which hazardous

10 substances were disposed of, disposal of hazard11 ous substances, arrangement with a transporter

12 for transport for disposal or treatment of a haz13 ardous substance, and any other activities de14 scribed in subsection (a).

15 ‘‘(B) The term ‘person’ has the meaning

16 provided in section 101(21) but does not in17 clude the United States Government.

18 SEC. 103. LIMITATION ON LIABILITY OF CERTAIN OWNERS

19 AND OPERATORS.

20 (a) EXEMPTION FOR GRANTEES OF CERTAIN EASE21 MENTS.—Subsection (a) of section 107 of the Comprehen22 sive Environmental Response, Compensation, and Liabil23 ity Act of 1980 (42 U.S.C. 9607(a)) is amended—

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

25 liable for—’’ and inserting in lieu thereof ‘‘shall be
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1 liable, except as provided in paragraph (4), for the

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

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

4 following:

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

7 (3) by aligning the margins of subparagraphs

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

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

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

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

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

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

15 with ‘‘The amounts recoverable in an action under

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

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

18 in that text—

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

20 ‘‘subparagraphs (A) through (D)’’;

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

22 lieu thereof ‘‘(A)’’; and

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

24 lieu thereof ‘‘(B)’’; and
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1 (7) by adding at the end the following new

2 paragraph:

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

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

6 easement with respect to real property on which a facility

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

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

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

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

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

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

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

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

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

23 the following:

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

25 shall have established a rebuttable presumption that he
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1 has made all appropriate inquiry within the meaning of

2 subparagraph (B) if he establishes that, immediately prior

3 to or at the time of acquisition, he obtained an environ4 mental assessment of the real property which meets the

5 requirements of this subparagraph.

6 ‘‘(ii) For purposes of this subparagraph, the term

7 ‘environmental professional’ means an individual, or an

8 entity managed or controlled by such individual who,

9 through academic training, occupational experience and

10 reputation (such as engineers, environmental consultants

11 and attorneys), can objectively conduct one or more as12 pects of an environmental assessment. For purposes of

13 this subparagraph, the term ‘environmental assessment’

14 means an investigation of the real property, conducted by

15 environmental professionals, to determine or discover the

16 likelihood of the presence or substantial reason to suspect

17 the presence of a release or threatened release of hazard18 ous substances on the real property and which consists

19 of a review of each of the following sources of information

20 concerning the previous ownership and uses of the real

21 property:

22 ‘‘(I) Recorded chain of title documents regard23 ing the real property, including all deeds, easements,

24 leases, restrictions, and covenants for a period of 50

25 years.
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1 ‘‘(II) Aerial photographs which may reflect

2 prior uses of the real property and which are reason3 ably accessible through State or local government

4 agencies.

5 ‘‘(III) Determination of the existence of re6 corded environmental cleanup liens against the real

7 property which have arisen pursuant to Federal,

8 State, and local statutes.

9 ‘‘(IV) Reasonably obtainable Federal, State,

10 and local government records of sites or facilities

11 where there has been a release of hazardous sub12 stances and which are likely to cause or contribute

13 to a release or threatened release of hazardous sub14 stances on the real property, including investigation

15 reports for such sites or facilities; reasonably obtain16 able Federal, State, and local government environ17 mental records of activities likely to cause or con18 tribute to a release or a threatened release of haz19 ardous substances on the real property, including

20 landfill and other disposal location records, under21 ground storage tank records, hazardous waste han22 dler and generator records and spill reporting

23 records; and such other reasonably obtainable Fed24 eral, State, and local government environmental

25 records which report incidents or activities which are
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1 likely to cause or contribute to a release or threat2 ened release of hazardous substances on the real

3 property. A record is considered to be reasonably ob4 tainable for purposes of this subclause if a copy or

5 reasonable facsimile of the record is obtainable from

6 the government agency by request.

7 ‘‘(V) A visual site inspection of the real prop8 erty and all facilities and improvements on the real

9 property, and a visual inspection of immediately ad10 jacent properties from the real property, including

11 an investigation of any chemical use, storage, treat12 ment and disposal practices on the property.

13 ‘‘(iii) No presumption shall arise under clause (i) un14 less the defendant has maintained a compilation of the in15 formation reviewed in the course of the environ16 mental assessment.

17 ‘‘(iv) Notwithstanding any other provision of this

18 paragraph, if the environmental assessment discloses the

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

21 acquired, no presumption shall arise under clause (i) with

22 respect to such release or threatened release unless the

23 defendant has taken reasonable steps, in accordance with

24 current technology available, existing regulations, and gen25 erally acceptable engineering practices, as may be nec-
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1 essary to confirm the absence of such release or threat2 ened release.’’.

3 (2) Subparagraph (C) of section 101(35) of the Com4 prehensive Environmental Response, Compensation, and

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

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

7 SEC. 104. CONTRIBUTION PROTECTION.

8 Section 113(f)(2) of the Comprehensive Environ9 mental Response, Compensation, and Liability Act of

10 1980 (42 U.S.C. 9613(f)(2)) is amended in the first sen11 tence by inserting ‘‘or cost recovery’’ after ‘‘contribution’’.

12 SEC. 105. CONTIGUOUS PROPERTIES.

13 Section 107(a) of the Comprehensive Environmental

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

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

16 amended by adding at the end the following new para17 graph:

18 ‘‘(5) A person who owns or operates real property

19 that is contiguous to or otherwise situated with respect

20 to real property on which there has been a release of a

21 hazardous substance and that is or may be contaminated

22 by such release shall not be considered an owner or opera23 tor of a facility under paragraph (1)(A) solely by reason

24 of such contamination. The President may issue assur25 ances of no enforcement action under this Act to any such
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1 person and may grant any such person protection against

2 cost recovery and contribution actions pursuant to section

3 113(f)(2).’’.

4 SEC. 106. LENDER AND FIDUCIARY LIABILITY.

5 (a) RULEMAKING AUTHORITY FOR SECURITY INTER6 EST EXEMPTION.—Section 115 of the Comprehensive En7 vironmental Response, Compensation, and Liability Act of

8 1980 (15 U.S.C. 9615) is amended—

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

10 subsection (a); and

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

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

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

14 date of enactment of the Comprehensive Superfund Im15 provement Act, regulations to define the terms of this Act

16 as they apply to lenders and other financial services pro17 viders. These regulations shall clarify the definition of the

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

19 by—

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

21 ‘security interest’, ‘primarily to protect a security in22 terest’, and ‘participation in management’; and

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

24 be undertaken without voiding the exemption to li25 ability provided by section 101(20)(A).
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1 ‘‘(2) The following clarifications shall be included

2 among the provisions in the regulations issued under para3 graph (1):

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

5 does not include—

6 ‘‘(i) the mere capacity to influence, or abil7 ity to influence, or the unexercised right to con8 trol facility operations; or

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

10 to require another person or itself, to comply

11 with applicable laws or to respond lawfully to

12 disposal of any hazardous substance.

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

14 deemed to be participating in management of a facil15 ity unless the security interest holder—

16 ‘‘(i) has undertaken responsibility for the

17 facility’s hazardous substance handling or dis18 posal practices; or

19 ‘‘(ii) has undertaken overall management

20 of the facility encompassing day-to-day deci21 sionmaking over either environmental compli22 ance or over the operational, as opposed to fi23 nancial and administrative, aspects of the facil24 ity.
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1 ‘‘(C) Legal or equitable title acquired by a secu2 rity interest holder through foreclosure or its equiva3 lents will be deemed to be held primarily to protect

4 a security interest provided that the holder under5 takes to sell, re-lease, or otherwise divest the prop6 erty in a reasonably expeditious manner on commer7 cially reasonable terms.’’.

8 (b) PROTECTION FOR FIDUCIARIES FROM INDIVID9 UAL LIABILITY.—(1) Section 101(20) of the Comprehen10 sive Environmental Response, Compensation, and Liabil11 ity Act of 1980 (42 U.S.C. 9601(20)) is amended by add12 ing at the end the following new subparagraph:

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

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

15 mortgagee or secured party with respect to, controls,

16 or manages, directly or indirectly, any facility or ves17 sel for purposes of administering an estate or trust

18 of which such facility or vessel is a part.

19 (ii) For purposes of clause (i), the term ‘fidu20 ciary’ means a person who is acting in any of the

21 following representative capacities, but only to the

22 extent such person is acting in such representative

23 capacity:
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1 ‘‘(I) An executor or administrator of an es2 tate, including a voluntary executor or a vol3 untary administrator.

4 ‘‘(II) A guardian.

5 ‘‘(III) A conservator.

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

7 the trustee takes title to, or otherwise controls

8 or manages, property for the purpose of pro9 tecting or conserving such property under the

10 ordinary rules applied in State courts.

11 ‘‘(V) A court-appointed receiver.

12 ‘‘(VI) A trustee appointed in proceedings

13 under Federal bankruptcy laws.

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

15 under an assignment made for the benefit of

16 creditors.

17 ‘‘(VIII) A trustee, or any successor there18 to, pursuant to an indenture agreement, trust

19 agreement, lease, or similar financing agree20 ment, for debt securities, certificates of interest

21 of participation in any such debt securities, or

22 other forms of indebtedness as to which it is

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

24 (2) Section 107 of the Comprehensive Environmental

25 Response, Compensation, and Liability Act of 1980 (42
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1 U.S.C. 9607), as amended by sections 102 and 103, is

2 further amended by adding at the end the following new

3 subsection:

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

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

6 101(20)) shall not be liable in its individual capacity under

7 this section.

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

9 preventing claims under this Act against—

10 ‘‘(A) the assets of the estate or trust adminis11 tered by a fiduciary; or

12 ‘‘(B) non-employee agents or independent con13 tractors retained by a fiduciary.

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

15 preventing claims under this Act against a fiduciary in its

16 individual capacity whose negligent acts or intentional

17 misconduct caused a release or threatened release of haz18 ardous substances at a facility or vessel. A fiduciary shall

19 not be attributed with the negligence or intentional mis20 conduct of non-employee agents or independent contrac21 tors if the fiduciary has conducted itself without neg22 ligence or intentional misconduct with regard to its rela23 tionship with such agents or contractors.’’.
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1 SEC. 107. DEFINITIONS.

2 Section 101 of the Comprehensive Environmental Re3 sponse, Compensation, and Liability Act of 1980 (42

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

5 following:

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

7 means any person identified as potentially liable

8 under section 107, potentially responsible to perform

9 any response action under sections 104 or 106, or

10 potentially liable for contribution under section 113.

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

12 potentially responsible party who is a generator or

13 transporter who contributed less than 100 pounds or

14 100 liters of material containing hazardous sub15 stances at a facility, or such greater or lesser

16 amount as the Administrator may determine by reg17 ulation.

18 ‘‘(41) The term ‘de minimis party’ means a lia19 ble party whose assigned share of liability is deter20 mined to be 1.0 percent or less in a final binding al21 location of responsibility decision under title V.

22 ‘‘(42) The term ‘liable party’ means any poten23 tially responsible party determined by an allocation

24 panel or a court to be liable under section 107, re25 sponsible to perform any action under sections 104

26 or 106, or liable for contribution under section 113.
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1 ‘‘(43) The term ‘assigned share’ means the per2 centage of liability assigned, in accordance with the

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

4 party by an allocation panel in a binding allocation

5 of responsibility or by a court of law.

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

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

8 or whose assigned share has been subject to dis9 charge or limitation in bankruptcy, or who is other10 wise financially unable to pay all or part of its as11 signed share.

12 ‘‘(45) The term ‘creditor party’ means the Ad13 ministrator, a State, or any person who is deter14 mined to be a liable party with respect to a National

15 Priority List site and who incurs or has incurred

16 costs with respect to the site that are not inconsist17 ent with the National Contingency Plan.

18 ‘‘(46) The term ‘debtor party’ means the Haz19 ardous Substance Superfund and any person who is

20 determined to be a liable party with respect to a Na21 tional Priority List site.

22 ‘‘(47) The term ‘binding allocation of respon23 sibility’ means a final binding determination by an

24 allocation panel pursuant to title V.
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1 ‘‘(48) The term ‘orphan share’ means the total

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

3 including all shares eligible for reimbursement or

4 payment pursuant to section 107(n).

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

6 ‘guardian’ means the person appointed by the Ad7 ministrator to represent the Environmental Protec8 tion Agency in a binding allocation of responsibility

9 proceeding.

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

11 means any site or facility that the Administrator has

12 listed on, or proposed for listing on, the list estab13 lished pursuant to section 105(a)(8)(B).’’.

14 SEC. 108. ASSIGNMENT OF SHARES OF LIABILITY FOR

15 COSTS OF RESPONSE ACTIONS AT NATIONAL

16 PRIORITY LIST SITES.

17 Section 107(a) of the Comprehensive Environmental

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

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

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

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

22 who accepts the results of the allocation of responsibility

23 process under title V or who successfully appeals the re24 sults of such process shall be liable only for its assigned

25 share of the costs incurred pursuant to subparagraphs
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1 (A), (B), and (D) of this section. The orphan share of

2 a National Priority List site shall be paid out of the Haz3 ardous Substance Superfund or the Retroactive Liability

4 Fund, or any combination thereof, as determined by final

5 binding allocation of liability.’’.

6 SEC. 109. ENFORCEMENT OF RESPONSE ACTIONS

7 THROUGH JOINT AND SEVERAL LIABILITY.

8 Section 107 of the Comprehensive Environmental Re9 sponse, Compensation, and Liability Act of 1980 (42

10 U.S.C. 9607) is amended by adding at the end the follow11 ing: 

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

13 WHO FAIL TO PERFORM RESPONSE ACTIONS.—In any

14 case in which no liable party or potentially responsible

15 party agrees to perform a response action at a National

16 Priority List site, or a liable party or potentially respon17 sible party agrees to perform a response action but the

18 party fails to perform such response action, as determined

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

20 located, the following provisions apply:

21 ‘‘(1) The party is considered to have not re22 solved its liability to the United States, notwith23 standing the party’s acceptance of the results of the

24 binding allocation of responsibility process under
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1 title V or the party’s successful appeal of the results

2 of such process.

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

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

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

6 the response action and all costs of the response ac7 tion with respect to the National Priority List site.

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

9 FUND.—A potentially responsible party who performs and

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

11 shall be reimbursed by the Hazardous Substance

12 Superfund.

13 ‘‘(p) AUTHORITY TO COLLECT RESPONSE COSTS

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

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

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

17 and may recover its response costs in accordance with that

18 section.’’.

19 SEC. 110. ESTABLISHMENT OF BINDING ALLOCATION OF

20 RESPONSIBILITY PROCESS.

21 The Comprehensive Environmental Response, Com22 pensation, and Liability Act of 1980 (42 U.S.C. 9601 et

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

24 title:
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1 ‘‘TITLE V—BINDING ALLOCA2 TION OF RESPONSIBILITY

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

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

‘‘Sec. 503. Specific rules and procedures.

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

documents.

‘‘Sec. 505. Civil and criminal penalties.

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

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

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

‘‘Sec. 509. Transition provisions.

‘‘Sec. 510. Voluntary settlements.

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

3 ‘‘SEC. 501. GENERAL RULES GOVERNING BINDING ALLOCA4 TIONS OF RESPONSIBILITY.

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

6 appoint panels of administrative law judges to perform ex7 pedited administrative proceedings, to be known as ‘bind8 ing allocations of responsibility’, for purposes of determin9 ing the liability of potentially responsible parties at Na10 tional Priority List sites. Each such panel shall be com11 posed of three administrative law judges appointed by the

12 Administrator under section 3105 of title 5, United States

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

14 ‘‘(b) RULES OF DECISION.—The decisions of alloca15 tion panels under this title shall be rendered based on the

16 provisions of this Act and the court decisions interpreting

17 such provisions.

18 ‘‘(c) RELATIONSHIP TO NATURAL RESOURCES DAM19 AGE.—Binding allocations of responsibility shall not ad-
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1 dress or affect the liability of any person with respect to

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

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

4 PANELS.

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

6 may not be appointed to an allocation panel under section

7 501 unless the judge completes at least 40 hours of edu8 cation and training, as specified by the Administrator, in

9 the following subject areas:

10 ‘‘(1) The operation of this Act and the regula11 tions promulgating this Act.

12 ‘‘(2) The science of soil and groundwater con13 tamination and the technology for treating such con14 tamination.

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

16 have the power and authority to perform all functions nec17 essary to administer and perform the binding allocations

18 of responsibility, including the power to—

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

20 production of documents to any person;

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

22 concerned to provide all information relevant to a

23 binding allocation of responsibility, including the

24 production of copies of all documents and informa-
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1 tion obtained pursuant to section 104(e) or pursuant

2 to similar State law;

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

4 proof, dispose of procedural requests, and issue all

5 necessary orders;

6 ‘‘(4) administer oaths and affirmations and

7 take affidavits;

8 ‘‘(5) examine witnesses and receive documen9 tary or other evidence;

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

11 parties as the allocation panel deems appropriate

12 and consistent with the expedited nature of the bind13 ing allocation of responsibility process;

14 ‘‘(7) admit or exclude evidence;

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

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

17 and the guardian of the Fund, to attend conferences

18 for the settlement or simplification of the issues or

19 the expedition of the proceedings;

20 ‘‘(10) require, at any time, that potentially re21 sponsible parties wishing to present similar legal or

22 factual arguments use a common spokesman or con23 solidated briefing for the presentation of such facts

24 and legal positions;
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1 ‘‘(11) obtain or employ such support services as

2 are necessary to conduct the binding allocation of re3 sponsibility, including secretarial and clerical serv4 ices, investigative services, and computer information

5 and database management services;

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

7 documents associated with the binding allocation of

8 responsibility shall be maintained and made avail9 able to all parties to the binding allocation of re10 sponsibility in accordance with section 506; and

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

12 necessary for the maintenance of order and for the

13 efficient, fair, and impartial adjudication of issues

14 arising in the binding allocation of responsibility.

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

16 have the power of subpoena to collect information nec17 essary or appropriate for conducting the binding allocation

18 of responsibility or for otherwise implementing this sec19 tion. This authority shall include the power to compel the

20 attendance and testimony of witnesses and the production

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

22 other information that the allocation panel deems nec23 essary. Witnesses shall be paid the same fees and mileage

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

25 In the event of contumacy or failure or refusal of any per-
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1 son to obey any such subpoena, any district court of the

2 United States in which venue is proper shall have jurisdic3 tion to order any such person to comply with such

4 subpoena.

5 ‘‘(d) INFORMAL RULES OF EVIDENCE.—In conduct6 ing the binding allocation of responsibility, an allocation

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

8 but shall instead use such informal rules of evidence and

9 evidentiary procedures, such as those set forth at sections

10 22.22 and 22.23 of title 40 of the Code of Federal Regula11 tions, as will promote the expeditious completion of the

12 proceeding.

13 ‘‘(e) NATIONWIDE SERVICE OF PROCESS.—Any docu14 ment required to be served on a party under this title may

15 be served in any district where the person is found, re16 sides, transacts business, or has appointed an agent for

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

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

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

20 if the party is not represented by counsel.

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

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

23 ‘‘(1) IN GENERAL.—A binding allocation of re24 sponsibility with respect to a National Priority List

25 site shall be initiated by filing a petition with the Of-
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1 fice of the Administrative Law Judges of the Envi2 ronmental Protection Agency. Such a petition may

3 be filed by the Administrator or the State where the

4 National Priority List site is located.

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

6 a State shall file a petition to initiate a binding allo7 cation of responsibility at a National Priority List

8 site not later than 30 days after initiating the reme9 dial investigation study (or its equivalent) for the

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

11 than 30 days after initiation of the remedial inves12 tigation study (or its equivalent), all governmental

13 response costs incurred or contracted for prior to the

14 filing of the petition shall be allocated entirely to the

15 orphan share.

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

17 initiate the binding allocation of responsibility pro18 ceeding shall identify the petitioner and shall include

19 all relevant information reasonably available con20 cerning—

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

22 status, and environmental condition of the Na23 tional Priority List site;
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1 ‘‘(B) the identity and address of each per2 son believed by the petitioner to be a liable

3 party and the basis for such belief;

4 ‘‘(C) any proposed questions and document

5 requests that the petitioner believes should be

6 included in the allocation panel’s first informa7 tion request and document request; and

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

9 that the petitioner believes may be raised in the

10 binding allocation of responsibility.

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

12 served by mail, publication, or otherwise on the Ad13 ministrator, the State where the site is located, and

14 each potentially responsible party identified in the

15 petition. Within 20 days after the filing of the peti16 tion, the Hearing Clerk of the Office of Administra17 tive Law Judges shall cause a notice of the filing of

18 the petition, together with a brief description of the

19 site and a list of all potentially responsible parties

20 identified in the petition, to be published in the Fed21 eral Register. The petitioner shall cause a similar

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

23 newspaper of general circulation within the State

24 where the site is located.
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1 ‘‘(5) PRIOR INVESTIGATION AND SEARCH.—The

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

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

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

5 any other relevant Federal or State statutory or reg6 ulatory authority, for all potentially responsible par7 ties. All information, answers, and documents dis8 covered in such investigation or search and relevant

9 to any aspect of the binding allocation of responsibil10 ity shall, simultaneously with the filing of the peti11 tion, be filed in the document repository for the

12 binding allocation of responsibility. If the allocation

13 panel determines that the Administrator or the

14 State failed to conduct a diligent search for poten15 tially responsible parties in accordance with this

16 paragraph, and if another party performs additional

17 investigations and successfully identifies additional

18 potentially responsible parties, then the allocation

19 panel shall credit all of the reasonable costs of such

20 additional search against the assigned share, if any,

21 of the party that performed such additional inves22 tigation or search.

23 ‘‘(6) APPOINTMENT OF GUARDIAN FOR THE

24 HAZARDOUS SUBSTANCE SUPERFUND AND THE RET25 ROACTIVE LIABILITY FUND.—Any petition filed by
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1 the Administrator shall include the name and ad2 dress of the person appointed to serve as the guard3 ian for the Hazardous Substance Superfund and the

4 Retroactive Liability Fund for that binding alloca5 tion of responsibility. In any case where a petition

6 is initiated by a State, the Administrator shall notify

7 the Hearing Clerk of the Office of the Administra8 tive Law Judges within 10 days after the petition is

9 filed of the name and address of the person des10 ignated by the Administrator as the guardian for the

11 Hazardous Substance Superfund and the Retro12 active Liability Fund. If the Environmental Protec13 tion Agency is also a potentially responsible party or

14 a liable party with respect to the National Priority

15 List site concerned, then the agency may participate

16 in the binding allocation of responsibility with regard

17 to such liability, but the person designated as the

18 guardian shall not represent the agency with regard

19 to the agency’s status as a potentially responsible

20 party or liable party.

21 ‘‘(b) IDENTIFICATION OF POTENTIALLY RESPON22 SIBLE PARTIES.—

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

24 30 days after receipt of a copy of a petition or after

25 publication in the Federal Register of a notice of the
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1 filing of an initial petition (whichever is earlier)

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

3 any potentially responsible party may file an initial

4 statement setting forth—

5 ‘‘(i) any defenses to liability;

6 ‘‘(ii) any equitable considerations pertain7 ing to any party’s potential liability;

8 ‘‘(iii) any additional facts and issues rel9 evant to the binding allocation of responsibility;

10 ‘‘(iv) any proposed questions or document

11 requests that the person filing the statement

12 believes should be included in the first informa13 tion request issued by the allocation panel; and

14 ‘‘(v) the name and address of any addi15 tional person or persons that the person filing

16 the statement believes may be a liable party at

17 the National Priority List site and all reason18 ably available information as to the relationship

19 between each proposed additional party and the

20 site.

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

22 the Hearing Clerk and served on all parties named

23 in the petition and named in such initial statement.

24 ‘‘(2) INFORMATION REQUESTS AND REQUESTS

25 FOR PRODUCTION OF DOCUMENTS.—(A) Not later
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1 than 30 days after the filing of the petition, the allo2 cation panel shall mail initial information requests

3 and requests for production of documents to the

4 guardian, the State, all potentially responsible par5 ties identified in the petition, and all additional par6 ties identified in the initial statements. Responses to

7 such requests shall be made in accordance with this

8 paragraph and section 504.

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

10 any information request or request for production of

11 documents, such person shall file a response with the

12 Hearing Clerk. For good cause shown, the allocation

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

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

15 continuing obligation to supplement its response

16 upon the receipt of additional relevant information.

17 ‘‘(3) ADDITIONAL NOMINATIONS OF POTEN18 TIALLY RESPONSIBLE PARTIES.—The parties may

19 identify and nominate additional potentially respon20 sible parties until the expiration of the 120-day pe21 riod beginning on the date of filing of the petition.

22 Any nominations received by the Hearing Clerk after

23 that period may be disregarded by the allocation

24 panel. Each nomination shall include all reasonably

25 available information supporting the assertion that
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1 the nominee is a liable party and shall be made at

2 the earliest possible time. Any party making an ad3 ditional nomination shall serve notice of such nomi4 nation on the nominated party and file a copy of

5 such notice with the Hearing Clerk. The nominated

6 party may file its initial response not later than 30

7 days after receipt of the notice. The allocation panel

8 may issue information requests and requests for the

9 production of documents to any nominated party at

10 any time.

11 ‘‘(4) INITIAL LIST OF ALL POTENTIALLY RE12 SPONSIBLE PARTIES.—Within six months after the

13 filing of the petition, the allocation panel shall cause

14 to be published in the Federal Register and a news15 paper of general circulation in the State where the

16 site is located a list identifying all parties that the

17 allocation panel preliminarily deems to be potentially

18 responsible parties with respect to the site. The allo19 cation panel also shall attempt to mail a copy of the

20 list to all parties to the binding allocation of respon21 sibility. The allocation panel shall reject the nomina22 tion of any person as a liable party or potentially re23 sponsible party if it finds that the nomination al24 leges no connection between the nominated person

25 and the site. The allocation panel may also identify,
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1 on its own motion or the motion of a potentially re2 sponsible party, additional potentially responsible

3 parties at any time before issuance of the final bind4 ing allocation of responsibility.

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

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

7 shall issue a list identifying all potentially responsible par8 ties that the allocation panel determines contributed only

9 100 pounds or 100 liters of material containing hazardous

10 substances at the facility (or such greater or lesser amount

11 as the Administrator may determine by regulation), to be

12 known as ‘de micromis parties’. The allocation panel shall

13 base the determination on an evaluation of all evidence

14 received at the time of the issuance of the list with respect

15 to the amount of hazardous substances contributed by po16 tentially responsible parties.

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

18 micromis party of its inclusion on the list issued under

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

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

21 parties is exempt from liability to the United States and

22 shall have no other liability (including liability for con23 tribution), under Federal or State law, to any person for

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

25 incurred at the site, provided that the person takes no
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1 other actions after being included on the list that would

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

3 ‘‘(d) IDENTIFICATION OF LIABLE PARTIES AND DE4 TERMINATION OF ASSIGNED SHARES.—

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

6 Unless the allocation panel determines that it would

7 unduly delay the process, the guardian, the State,

8 and any potentially responsible party may file an al9 location advocacy paper with the Hearing Clerk not

10 later than 30 days after the publication of the initial

11 list of potentially responsible parties in the Federal

12 Register. Any such allocation advocacy paper, which

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

14 potentially responsible party, shall be a concise

15 statement, together with citations to relevant sup16 porting evidence and law, of the party’s position

17 with regard to—

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

19 should be used in determining whether a poten20 tially responsible party at the site is a liable

21 party; and

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

23 subsection (g)(2) should be applied to deter24 mine the assigned share of each liable party.
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1 ‘‘(2) FIRST ALLOCATION REPORT.—Within 90

2 days after the publication of the initial list of poten3 tially responsible parties in the Federal Register, the

4 allocation panel shall issue its first allocation report

5 tentatively specifying the criteria to be used in iden6 tifying the liable parties, tentatively specifying how

7 the allocation factors will be applied to the case to

8 determine assigned shares, and setting forth the

9 process and schedule that will be used to allow par10 ties the opportunity to present written evidence and

11 argument regarding how such criteria and factors

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

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

14 potentially responsible party.

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

16 The guardian, the State, and each potentially re17 sponsible party may file an allocation advocacy

18 paper with the Hearing Clerk not later than 60 days

19 after receipt of the first allocation report. The allo20 cation advocacy paper, which shall be served on the

21 guardian, the State, and each potentially responsible

22 party, shall be the primary opportunity for the

23 guardian, the State, and each potentially responsible

24 party to present evidence and argument regarding

25 how the liability criteria and the allocation factors
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1 should be applied to such party and, if desired by

2 the person filing the paper, how those criteria and

3 factors should be applied to other potentially respon4 sible parties at the site.

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

6 party may request a hearing on the determination

7 that such party is a liable party and on the deter8 mination of its assigned share. The allocation panel

9 may hold such a hearing if the allocation panel de10 termines that it would expedite or materially assist

11 in the resolution of disputed factual or legal issues.

12 The allocation panel shall have broad discretion in

13 managing the conduct of any such hearing, including

14 limiting the time available to each party and requir15 ing that parties with generally similar interests be

16 represented by a single spokesperson or common

17 counsel. The allocation panel may allow or prohibit

18 the cross-examination of witnesses.

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

20 present written evidence or argument on whether it,

21 or any other potentially responsible party, is a liable

22 party and on the appropriate assigned share for it23 self or any other potentially responsible party. A po24 tentially responsible party shall be deemed a liable

25 party if the allocation panel determines that the pre-
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1 ponderance of the evidence supports the conclusion

2 that such party is liable.

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

4 the submission of advocacy papers and at the con5 clusion of any hearings, the allocation panel shall

6 issue a second allocation report identifying all liable

7 parties at the site and specifying the assigned share

8 of each liable party. If the second allocation report

9 changes or expands the list of potentially responsible

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

11 allocation report, then the second report shall so

12 specify and provide a brief explanation of any such

13 change. The second allocation report shall be served

14 on the guardian, the State, all potentially responsible

15 parties, and all liable parties.

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

17 ‘‘(1) ORPHAN SHARE ADVOCACY PAPER.—Un18 less the allocation panel determines that it would un19 duly delay the process, the guardian, the State, and

20 each liable party may file an orphan share advocacy

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

22 day period beginning on the date of issuance of the

23 second allocation report. The orphan share advocacy

24 paper shall be the primary opportunity for the

25 guardian, the State, and each liable party to present
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1 written evidence and argument as to which liable

2 parties are orphan parties whose assigned share

3 should, in whole or in part, be assigned to the or4 phan share.

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

6 expiration of the 30-day period referred to in para7 graph (1), the allocation panel shall issue an orphan

8 share allocation report identifying the orphan share.

9 The orphan share report shall be served on the

10 guardian, the State, all potentially responsible par11 ties, and all liable parties.

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

13 At any time during the period beginning six months after

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

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

16 identifying all potentially responsible parties that the allo17 cation panel determines did not contribute any amount of

18 hazardous substances to the National Priority List site.

19 The allocation panel shall base the determination on an

20 evaluation of all evidence received at the time of the issu21 ance of the list with respect to the amount of hazardous

22 substances contributed by potentially responsible parties.

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

24 party of its inclusion on the list issued under paragraph

25 (1) not later than 20 days after issuing the list.
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1 ‘‘(3) Nonliable parties shall have no other liability,

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

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

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

5 making such settlement payment that would give risk to

6 a separate basis for their liability under this Act.

7 ‘‘(g) FINAL BINDING ALLOCATION OF RESPONSIBIL8 ITY DECISION.—

9 ‘‘(1) DECISION.—(A) Not later than the dead10 line set forth in subparagraph (B), the allocation

11 panel shall issue a final binding allocation of respon12 sibility decision (in this subsection referred to as the

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

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

15 Government’s costs of carrying out the allocation as

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

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

18 potentially responsible parties, a list of all liable par19 ties and the assigned share for each (including all de

20 minimis parties as determined under paragraph (3)),

21 a list of all orphan parties and the portion of the as22 signed share of each orphan party that is assigned

23 to the orphan share, and the total orphan share as24 signed to the Fund and to the Retroactive Liability

25 Fund. Where an orphan party is able to pay only a
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1 portion of its assigned share, the allocation panel

2 shall allocate to the orphan share the portion of the

3 assigned share that the party is unable to pay and

4 require the party to pay the remainder. The final

5 BAR decision shall provide a concise explanation of

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

7 in whole or in part, of a compilation of the first allo8 cation report, the second allocation report, and the

9 orphan share report.

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

11 later than 18 months after the date of publication

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

13 a binding allocation of responsibility has been filed,

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

15 final decision shall be issued not later than 24

16 months after such date.

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

18 panel shall determine the assigned share of each lia19 ble party based on the following factors:

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

21 contribution to a discharge, release, or disposal

22 of a hazardous substance can be distinguished.

23 ‘‘(B) The amount of hazardous substances

24 contributed by the liable party at the site con-
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1 cerned, compared to the total amount of haz2 ardous substances at that site.

3 ‘‘(C) The degree of toxicity of the hazard4 ous substance contributed by the liable party.

5 ‘‘(D) The degree of involvement by the lia6 ble party in the generation, transportation,

7 treatment, storage, or disposal of the hazardous

8 substance.

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

10 liable party with respect to the hazardous sub11 stance concerned, taking into account the char12 acteristics of such hazardous substance.

13 ‘‘(F) The degree of cooperation by the lia14 ble party with Federal, State, or local officials

15 to prevent any harm to the public health or the

16 environment.

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

18 liability and the appropriate share of the liable

19 party.

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

21 ‘‘(I) Any other equitable factors deemed

22 appropriate.

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

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

25 issuance of the final BAR decision, the allocation
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1 panel shall issue a list identifying all potentially re2 sponsible parties that the allocation panel deter3 mines contributed only 1.0 percent or less of the

4 total quantity of hazardous substances present at

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

6 minimis parties’.

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

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

9 de minimis parties under subparagraph (A), which10 ever is earlier, the Administrator shall make a firm

11 written offer of settlement to all de minimis parties.

12 The amount of the settlement offer for a de minimis

13 party shall be based on the Environmental Protec14 tion Agency’s estimate of the total cleanup cost at

15 the site multiplied by the de minimis party’s allo16 cated share as determined by the allocation panel

17 and increased by a reasonable premium (expressed

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

19 and complete resolution of liability, including consid20 eration of whether the remedy at the site will entail

21 multiple phases or operable units. All settlement of22 fers by the Administrator to de minimis parties at

23 the same site shall be based on the same estimate

24 of cleanup costs and the same premium percentage.
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1 The settlement offer under this subparagraph is not

2 subject to judicial review.

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

4 a settlement offer, but any acceptance of the offer

5 must be made within 60 days after receipt of the

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

7 resolve its liability to the United States by paying

8 the amount of the offer to the Hazardous Substance

9 Superfund. Such settlement may not be reopened

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

11 ‘‘(D) De minimis parties that accept the settle12 ment offer and pay the amount of the offer shall

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

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

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

16 that they take no other actions after making such

17 settlement payment that would give risk to a sepa18 rate basis for their liability under this Act.

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

20 under this paragraph that represent the allocated

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

22 by the Administrator directly to the person perform23 ing the response action at the site. All proceeds from

24 de minimis settlements under this paragraph that

25 represent premiums paid by de minimis parties at
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1 the site shall be earmarked in the Hazardous Sub2 stance Superfund to be used specifically for costs of

3 response action at the site. Any amounts of such set4 tlements remaining in the Fund after completion of

5 the response action shall be available in the

6 Superfund for general use.

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

8 allocation of responsibility decision shall be served

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

10 The Hearing Clerk shall cause a notice of the bind11 ing allocation of responsibility decision to be pub12 lished in the Federal Register and in a newspaper of

13 general publication in the State where the site is

14 located.

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

16 of responsibility decision shall be binding as to all

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

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

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

20 binding allocation of responsibility decision shall be

21 binding on all persons, including, without limitation,

22 the United States, any affected State or local gov23 ernmental agency or Indian Tribe, any alleged or

24 nominated potentially responsible party (regardless
49

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1 of whether such party participates in the binding al2 location of responsibility), and the public.

3 ‘‘(6) EFFECT ON OTHER PROCEEDINGS.—A de4 termination that a person is a liable party under a

5 binding allocation of responsibility proceeding is ap6 plicable only with respect to liability being assigned

7 in the proceeding and not with respect to liability

8 being determined in any other criminal, civil, or ad9 ministrative proceeding.

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

11 REQUESTS FOR PRODUCTION OF DOCU12 MENTS.

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

14 any information request or request for production of docu15 ments from the allocation panel during a binding alloca16 tion of responsibility must provide full and timely re17 sponses to the request.

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

19 information requests and requests for production of docu20 ments shall include a certification by a responsible rep21 resentative who meets the criteria established in section

22 270.11(a) of title 40 of the Code of Federal Regulations

23 that the answers—

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

25 knowledge;
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1 ‘‘(2) are based on a diligent good faith search

2 of records in the possession or control of the person

3 to whom the request was directed;

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

5 current and former officers, directors, employees,

6 and agents of the person to whom the request was

7 directed;

8 ‘‘(4) accurately reflect information obtained in

9 the course of conducting such search and such

10 inquiry;

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

12 understands that there is a duty to supplement any

13 such answers if, during the binding allocation of re14 sponsibility, any significant additional, new, or dif15 ferent information becomes known or available to

16 the answerer; and

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

18 understands that there are significant penalties for

19 submitting false information, including the possibil20 ity of fine and imprisonment for knowing violations.

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

22 sanction, any person who fails to answer an information

23 request or request for production of documents, and who

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

25 assigned share of up to 500 percent of whatever its as-
51

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1 signed share would otherwise have been, or up to 50 per2 cent of the total liability at the site, whichever is greater.

3 If this results in a binding allocation of responsibility that

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

5 the excess shall be deposited into the Hazardous Sub6 stance Superfund.

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

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

9 submit a complete and timely answer to an allocation pan10 el’s information request or request for production of docu11 ments or other discovery request, or who submits a re12 sponse that lacks the certification required under section

13 504(b), or who makes any false or misleading material

14 statement or representation in any submission to the allo15 cation panel during the binding allocation of responsibility

16 process, including statements or representations in con17 nection with the nomination of another potentially respon18 sible party, shall be subject to civil penalties of up to

19 $10,000 per day of violation. The violation shall be

20 deemed a continuing one until such time as the request

21 is answered or the necessary certification is submitted or

22 the false or misleading statement or representation is cor23 rected. Such penalties may be assessed by the President

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

25 a citizen suit brought under section 310. A prevailing
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•S 1994 IS

1 plaintiff in such a citizen suit shall be awarded its attor2 neys fees and up to 50 percent of the penalty imposed

3 by the court.

4 ‘‘(b) CRIMINAL PENALTIES.—Any person who know5 ingly makes any false material statement or representation

6 in the response to an allocation panel’s information re7 quest or request for the production of documents or other

8 discovery request, or in any other submission to the alloca9 tion panel during the binding allocation of responsibility,

10 including statements or representations in connection with

11 the nomination of another potentially responsible party,

12 may be fined under title 18, United States Code, impris13 oned for not more than 2 years, or both.

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

15 WAIVER.

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

17 shall establish and maintain a document repository where

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

19 reports, answers to information requests and requests for

20 production of documents by the allocation panel, answers

21 to Federal or State information requests or requests for

22 the production of documents issued prior to the filing of

23 the petition, produced documents, and all other similar

24 material shall be maintained and organized. The docu25 ments and information in the document repository shall
53

•S 1994 IS

1 be available only to the parties to the binding allocation

2 of responsibility for review and copying at their own ex3 pense, subject only to the confidentiality provisions of sub4 section (b). All responses to any information request or

5 request for production of documents by the allocation

6 panel shall be filed with the clerk for the document reposi7 tory and need not be served on other potentially respon8 sible parties, the State, or the guardian.

9 ‘‘(b) CONFIDENTIALITY.—(1) All pleadings, docu10 ments, and materials submitted to the allocation panel or

11 placed in the document repository, together with the

12 record of any depositions or testimony adduced during the

13 binding allocation of responsibility, shall be confidential

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

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

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

17 allocation of responsibility proceeding shall maintain such

18 pleadings, documents, and materials, together with the

19 record of any depositions or testimony adduced during the

20 binding allocation of responsibility, as confidential. Such

21 material shall not be discoverable or admissible in any

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

23 legislative proceeding of any kind whatsoever, except—

24 ‘‘(A) to the extent necessary to collect or other25 wise enforce in court the assigned share of a liable
54

•S 1994 IS

1 party as determined by the binding allocation of

2 responsibility;

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

4 binding allocation of responsibility;

5 ‘‘(C) in any new binding allocation of respon6 sibility proceeding concerning the same site; and

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

8 involving a different site where the allocation panel

9 determines that the sites are related and that speci10 fied documents from the first binding allocation of

11 responsibility could materially assist the second

12 binding allocation of responsibility.

13 ‘‘(2) Notwithstanding paragraph (1)(D), if the origi14 nal of any document or material submitted to the alloca15 tion panel or placed in the document repository during the

16 binding allocation of responsibility was, while in the pos17 session of the party which provided it, otherwise discover18 able or admissible, then such original document, if subse19 quently sought from such party, shall remain discoverable

20 or admissible. If a fact covered in any deposition or testi21 mony adduced during the binding allocation of responsibil22 ity was, in the knowledge of the witness or deponent, oth23 erwise discoverable or admissible, then such testimony, if

24 subsequently sought from such other party, shall remain

25 discoverable or admissible.
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1 ‘‘(c) NO WAIVER OF PRIVILEGE.—The submission of

2 documents or information pursuant to the binding alloca3 tion of responsibility proceeding shall not be deemed to

4 be a waiver of any privilege, applicable to the original doc5 ument or fact, under any Federal or State law, regulation,

6 or rule of discovery or evidence .

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

8 binding allocation of responsibility receives any request for

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

10 any depositions or testimony adduced in a binding alloca11 tion of responsibility, such party shall promptly notify the

12 person who originally submitted such item and shall pro13 vide such submitting person the opportunity to assert and

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

15 binding allocation of responsibility shall release or provide

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

17 record of any depositions or testimony adduced therein,

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

19 responsibility, except in compliance with an order from a

20 court.

21 ‘‘(e) CIVIL PENALTY FOR VIOLATION OF CONFIDEN22 TIALITY REQUIREMENTS.—Any person who fails to main23 tain the confidentiality of any pleadings, documents, or

24 materials, or the record of any deposition or testimony ad25 duced during the binding allocation of responsibility, or
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•S 1994 IS

1 who releases any such information in violation of this sec2 tion, shall be subject to a civil penalty of up to $25,000

3 per violation. Such a penalty may be assessed by the Presi4 dent in accordance with section 109 or by any other party

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

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

8 by the court.

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

10 ‘‘(a) FINAL AGENCY ACTION.—The binding alloca11 tion of responsibility decision of the allocation panel shall

12 constitute final agency action pursuant to section 706 of

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

14 Administrator in situations of fraud or gross misconduct.

15 ‘‘(b) JUDICIAL REVIEW.—

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

17 shall have jurisdiction to review, modify, or enjoin

18 any aspect of any binding allocation of responsibility

19 proceeding except as expressly set forth in this sub20 section. No aspect of any action, decision, ruling, or

21 determination by an allocation panel in any binding

22 allocation of responsibility proceeding shall be sub23 ject to administrative or judicial review in any Fed24 eral or State court until after the final binding allo25 cation of responsibility decision (in this subsection
57

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

2 the allocation panel. Thereafter the Administrator,

3 the guardian, the State, or any person determined

4 by the allocation panel to be a liable party may ob5 tain judicial review of a final BAR decision by filing

6 a petition for review with the United States Court

7 of Appeals for the Circuit in which the facility is lo8 cated or for the District of Columbia.

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

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

11 final BAR decision by the allocation panel. The peti12 tion shall set forth either the specific assigned share

13 of liability that the petitioner believes should have

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

15 by the guardian, the assigned share that the guard16 ian believes should have been assigned to the orphan

17 share) in the binding allocation of responsibility, or

18 stating specifically that the petitioner believes it

19 should not have been found to have any liability at

20 all.

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

22 BAR decision shall be conducted on the administra23 tive record, which shall include all materials relating

24 to the issues raised on appeal by the petitioner that

25 are contained in the document repository described
58

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1 in section 506(a). The court shall set aside the bind2 ing allocation of responsibility only if it is found to

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

4 contrary to constitutional right, power, privilege, or

5 immunity.

6 ‘‘(4) PAYMENT DURING PENDENCY OF RE7 VIEW.—During the pendency of a petition for review

8 under this section, the petitioner shall pay any de9 mand notices rendered for its assigned share in ac10 cordance with the binding allocation of responsibility

11 decision, subject to later refund if the petitioner pre12 vails in the litigation.

13 ‘‘(5) CONDUCT OF RESPONSE ACTION DURING

14 PENDENCY OF REVIEW.—During the pendency of a

15 petition for review under this section, response ac16 tion with respect to the site may occur, but only as

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

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

19 If the petitioner is a liable party and the court

20 adopts the assigned share proposed by the peti21 tioner, then the difference between that share and

22 the share originally assigned to the petitioner shall

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

24 guardian and the court adopts the orphan share pro25 posed by the petitioner, then the matter shall be re-
59

•S 1994 IS

1 manded to the allocation panel for the issuance, as

2 soon as possible, of a revised binding allocation of

3 responsibility decision in accordance with the deci4 sion of the court.

5 ‘‘(7) LIABILITY OF UNSUCCESSFUL PETI6 TIONER.—(A) In the case of a petitioner who is a

7 liable party petitioning for a change in the petition8 er’s assigned share, and the court does not adopt the

9 assigned share proposed by the petitioner, the fol10 lowing provisions apply:

11 ‘‘(i) The petitioner shall reimburse all

12 other parties that participated in the appeal for

13 the actual attorneys’ fees and costs that they

14 incurred in defending the binding allocation of

15 responsibility decision.

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

17 settlement based on its assigned share if the pe18 titioner notifies the court of such intention

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

20 petition.

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

22 as described in clause (ii), the petitioner is con23 sidered to have not resolved its liability to the

24 United States and is subject to civil action

25 under section 106, 107(a), and 113 for the fol-
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1 lowing response costs with respect to the Na2 tional Priority List site concerned:

3 ‘‘(I) The assigned share of the peti4 tioner, as determined in the final BAR de5 cision, plus

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

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

8 subject to claims for contribution from, and

9 may make claims for contribution against, other

10 unsuccessful petitioners with respect to the Na11 tional Priority List site concerned.

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

13 party petitioning for a determination that the peti14 tioner is not liable with respect to the site concerned

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

16 a successor to, or a parent or subsidiary of, a com17 pany which the petitioner believes should be assigned

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

19 the petitioner is liable for its assigned share as de20 termined in the final BAR decision.

21 ‘‘SEC. 508. COLLECTION, ENFORCEMENT, AND IMPLEMEN22 TATION.

23 ‘‘(a) COLLECTION.—

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

25 binding allocation of responsibility decision is made
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1 with respect to a National Priority List site, any

2 creditor party may, in accordance with paragraph

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

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

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

6 determined under the binding allocation of re7 sponsibility.

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

9 is the Hazardous Substance Superfund or the

10 Retroactive Liability Fund, the orphan share,

11 as determined under the binding allocation of

12 responsibility.

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

14 either a liable party or the Hazardous Sub15 stance Superfund or the Retroactive Liability

16 Fund, any attorneys’ fees incurred by the credi17 tor party in a judicial action seeking to recover

18 costs from the debtor party.

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

20 by a creditor party from a debtor party shall be car21 ried out in accordance with the following provisions:

22 ‘‘(A) The creditor party shall file a cer23 tified copy of the final decision of the binding

24 allocation of responsibility in the United States
62

•S 1994 IS

1 District Court for the district in which the site

2 is located.

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

4 statement with the same court specifying the

5 actions taken and the costs incurred by the

6 creditor party, and stating that such actions

7 and costs are not inconsistent with the National

8 Contingency Plan.

9 ‘‘(C) The creditor party shall serve a de10 mand notice to each debtor party against whom

11 enforcement is sought and shall deliver a copy

12 of each such notice to the Administrator and

13 the State in which the site is located. The de14 mand notice shall specify the total amount of

15 costs covered by the notice, state a demand

16 amount (consisting of the debtor party’s as17 signed share or, with regard to the Fund, the

18 orphan share), and demand that the debtor

19 party pay such demand amount within 30 days

20 after receipt of the notice. Any demand notice

21 served by a creditor party shall provide that a

22 debtor party may pay the demand amount over

23 a period of time in installment payments. A

24 copy of the demand notice shall be filed with
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1 the United States District Court for the district

2 in which the site is located.

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

4 or expenditures of a continuing nature, verified

5 statements and demand notices shall be filed

6 with the court and delivered to the debtor par7 ties and the guardian quarterly.

8 ‘‘(E) Where several liable parties, or a lia9 ble party and the Administrator or the State,

10 each take actions or incur costs not inconsistent

11 with the National Contingency Plan, different

12 demand notices may be issued concurrently.

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

14 of a challenge to collection duly filed in accordance with

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

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

17 specified in a demand notice within 30 days after receipt

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

19 installments, within 30 days after an installment payment

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

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

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

23 the demand notice. In the case of the orphan share, if the

24 Hazardous Substance Superfund or the Retroactive Li25 ability Fund fails to pay the sum specified in a demand
64

•S 1994 IS

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

2 or the Retroactive Liability Fund shall be liable for inter3 est thereon and damages of up to the amount equal to

4 2 times the sum specified in the demand notice.

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

6 be no administrative or judicial review of any aspect of

7 a demand notice filed and delivered pursuant to subsection

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

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

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

11 a petition with the allocation panel that issued the binding

12 allocation of responsibility decision contending that the

13 costs reflected in the demand notice were incurred for ac14 tions inconsistent with the National Contingency Plan. If

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

16 an expedited review of the matter. The review shall be lim17 ited solely to the issue of the alleged inconsistency of the

18 response actions and costs with the National Contingency

19 Plan. The person challenging the demand notice shall have

20 the burden of proof that such actions and the claimed

21 costs are inconsistent with the National Contingency Plan.

22 The allocation panel’s decision shall not be subject to judi23 cial review. Payment need not be made, and no interest

24 shall accrue, pending the allocation panel’s decision.
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1 ‘‘(d) SUBSEQUENT ADDITIONS TO ORPHAN

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

3 whether by the Federal or State government or by any

4 other creditor party, against a liable party results in a ju5 dicial or administrative determination that such liable

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

7 will be added to the orphan share amount and will be re8 coverable from the Hazardous Substance Superfund.

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

10 that pay their assigned share and comply with the binding

11 allocation of responsibility decision shall have no other li12 ability, under Federal or State law, to any person for costs

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

14 to sue by the Federal Government and the State govern15 ment concerned, except that the binding allocation of re16 sponsibility decision shall not affect any contract for insur17 ance or indemnification.

18 ‘‘SEC. 509. TRANSITION PROVISIONS.

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

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

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

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

23 Federal or State law or regulation, for the recovery of re24 sponse costs, contribution, or performance of response ac25 tions regarding any National Priority List site until 90
66

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1 days after a final binding allocation of responsibility is

2 issued.

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

4 the following exceptions:

5 ‘‘(1) ADMINISTRATIVE ORDERS FOR EMER6 GENCY REMOVAL ACTIONS.—The President may

7 issue an order under section 106, prior to the issu8 ance of a final binding allocation of responsibility, if

9 the order is limited to those actions required to im10 plement immediate risk reduction measures pending

11 the issuance of the final binding allocation of re12 sponsibility decision.

13 ‘‘(2) CONTINUATION OF PENDING RESPONSE

14 ACTIONS.—In any case where, as of the date of en15 actment of this title, the Administrator or a State

16 has already issued a binding contract for the per17 formance of a remedial investigation/feasibility study

18 or has issued an administrative order or executed a

19 consent decree for the performance of any response

20 action, the binding allocation of responsibility proc21 ess shall not affect the timing or manner of imple22 mentation of such response actions.

23 ‘‘(c) STAY OF EXISTING ACTIONS.—

24 ‘‘(1) STAY OF PENDING ENFORCEMENT AC25 TIONS.—In any case where, as of the date of enact-
67

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1 ment of this title, the Administrator or the State has

2 already initiated any administrative or judicial en3 forcement action regarding the liability of any party

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

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

6 Federal or State law or regulation for the response

7 costs, contribution, or performance of response ac8 tions, such action shall be automatically stayed until

9 90 days after a binding allocation of responsibility is

10 issued, any judicial review of such allocation is com11 pleted, and a final administrative or judicial alloca12 tion decision is rendered.

13 ‘‘(2) STAY OF PENDING PRIVATE PARTY LITIGA14 TION.—In any case where, as of the date of enact15 ment of this title, any private person has initiated

16 any administrative or judicial action regarding the

17 liability of any party at a National Priority List site

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

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

20 Federal or State law or regulation for the response

21 costs, contribution, or performance of response ac22 tions, such action shall be automatically stayed until

23 90 days after a binding allocation of responsibility is

24 issued, any judicial review of such allocation is com-
68

•S 1994 IS

1 pleted, and a final administrative or judicial alloca2 tion decision is rendered.

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

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

5 or cost incurred in any activity carried out pursuant to

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

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

8 response action or other activity carried out pursuant to

9 subsection (b), shall be included in, the subsequently is10 sued binding allocation of responsibility for such National

11 Priority List site. In conducting the binding allocation of

12 responsibility, the allocation panel shall, to the extent rea13 sonably possible, give credit for any prior costs incurred

14 or response actions performed at the National Priority

15 List site.

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

17 time period described in paragraph (2) shall not be count18 ed in determining the statute of limitations applicable to

19 any administrative or judicial action under section 106,

20 subparagraph (A), (B), or (D) of section 107(a)(1), or sec21 tion 113, or under any other Federal or State law or regu22 lation, for the recovery of costs, for contribution, or for

23 the investigation, cleanup, or remediation of any National

24 Priority List site.
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1 ‘‘(2) The time period referred to in paragraph (1) is

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

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

5 binding allocation of responsibility is issued.

6 ‘‘SEC. 510. VOLUNTARY SETTLEMENTS.

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

9 parties may submit a private allocation for the National

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

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

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

14 it as the binding allocation of responsibility:

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

17 of past, present, and future recoverable response

18 costs at the site.

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

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

23 guardian agrees, in writing, to such allocation;

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

2 to the voluntary binding allocation of respon3 sibility.

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

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

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

10 non-signatories based on a contract for insurance or

11 indemnification.

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

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

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

18 ‘‘A binding allocation of responsibility shall constitute

19 a permanent determination of the assigned share of each

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

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

23 the binding allocation of responsibility shall not be subject

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

25 date of the binding allocation of responsibility final deci-
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•S 1994 IS

1 sion. Thereafter a new binding allocation of responsibility

2 process shall be available only if the party requesting it

3 demonstrates that, due to new information not reasonably

4 available during first binding allocation of responsibility,

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

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

7 allocation of responsibility is granted, the same rules and

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

10 of responsibility. New binding allocations of responsibility

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

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

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

17 SEC. 111. SITE REDEVELOPMENT.

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

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

21 end thereof:

22 ‘‘(n) SITE REDEVELOPMENT.—

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

25 costs or damages with respect to the release of any
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•S 1994 IS

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

4 a response action has been completed (as determined

5 by the President) at such facility.

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

7 of this subsection, the term ‘qualified redeveloper’

8 means a person who is not otherwise liable under

9 section 107 and did not cause or contribute to the

10 release or threat of release which necessitated the

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

12 SEC. 112. LIABILITY OF RESPONSE ACTION CONTRACTORS.

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

16 1980 is amended—

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

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

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

20 the law of any State or political subdivision of a

21 State’’; and

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

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

24 the generally accepted standards and practices in ef-
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1 fect at the time and place that the conduct oc2 curred.’’.

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

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

6 agreement may apply to claims for negligence arising

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

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

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

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

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

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

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

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

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

21 or contaminant’’.

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

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

25 after ‘‘release’’ both places it appears.
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1 (e) CLARIFICATION OF LIABILITY.—Section 101 of

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

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

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

6 agreement with any Federal agency, any State (or

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

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

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

15 transported, hazardous substances or pollutants or

16 contaminants. This subparagraph shall not apply to

17 any person potentially responsible under section 106

18 or 107 other than those persons associated solely

19 with the provision of response action or any form of

20 ancillary services or equipment.’’.

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

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

24 ‘‘(g) LIMITATION ON ACTIONS AGAINST RESPONSE

25 ACTION CONTRACTORS.—No action to recover for any in-
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1 jury to property, real or personal, or for bodily injury or

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

3 of the performance of services under a response action

4 contract, nor any action for contribution or indemnity for

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

6 brought against any response action contractor more than

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

8 such contract. The limitation prescribed in this subsection

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

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

12 TITLE II—STATE

13 IMPLEMENTATION

14 SEC. 201. STATE AUTHORITY.

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

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

18 by adding after section 126 the following new section:

19 ‘‘§ 127. State authority

20 ‘‘(a) STATE PROGRAM AUTHORIZATION.—

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

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

24 under its own legal authorities, response actions and

25 enforcement activities at all facilities listed or pro-
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1 posed for listing on the National Priorities List, or

2 certain categories of facilities listed or proposed for

3 listing on the National Priorities List, within the

4 State. If the Administrator determines that the

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

7 into between the Administrator and the State, shall

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

11 this Act, such responsibilities include, but are not

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

15 Fund and the Retroactive Liability Fund in amounts

16 authorized by the Administrator to finance response

17 activities; and taking enforcement actions, including

18 cost recovery actions to recover Fund and the Retro19 active Liability Fund expenditures made by the

20 State. In an application for authorization, a State

21 shall acknowledge its responsibility to address all re22 sponse actions at the facilities for which it seeks

23 authorization.

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

25 later than 1 year after the date of the enactment of
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1 the Comprehensive Superfund Improvement Act, the

2 Administrator shall issue regulations to determine a

3 State’s eligibility for authorization and to establish

4 a process and criteria for withdrawal of such an au5 thorization. A State shall be considered eligible for

6 authorization if the Administrator determines that

7 the State possesses the legal authority, technical ca8 pability, and resources necessary to conduct re9 sponse actions and enforcement activities in a man10 ner that is substantially consistent with this Act and

11 the National Contingency Plan at the facilities listed

12 or proposed for listing on the National Priorities

13 List for which it seeks authorization.

14 ‘‘(b) AUTHORIZED USE OF FUNDS.—At facilities list15 ed on the National Priorities List for which a State is au16 thorized under subsection (a), and at facilities listed on

17 the National Priorities List which are referred to a State

18 under subsection (b), the State shall be eligible for re19 sponse action financing from the Fund and the Retro20 active Liability Fund. The Administrator shall ensure that

21 all allocations of the Fund and the Retroactive Liability

22 Fund to the States for the purpose of undertaking site23 specific response actions are based primarily on the rel24 ative risks to human health and the environment posed

25 by the facilities eligible for funding. The amount of Fund
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1 and Retroactive Liability Fund financing for a State-se2 lected response action at a facility listed on the National

3 Priorities List shall—

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

5 viability of parties identified as potentially liable for

6 response costs at such facility, and

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

8 achieve a level of response that is not more stringent

9 than that required under this Act.

10 A State also may obtain Fund financing to develop and

11 enhance its capacity to undertake response actions and en12 forcement activities. The Administrator, in consultation

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

14 date of enactment of the Comprehensive Superfund Im15 provement Act, specific criteria for allocating expenditures

16 from the Fund and the Retroactive Liability Fund among

17 States for the purposes of undertaking response actions

18 and enforcement activities at referred and State-author19 ized facilities, and building State capacities to undertake

20 such response actions and enforcement activities.

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

22 104(c)(3)(C) of this Act, a State shall pay or assure pay23 ment of 10 percent of the costs of all response actions

24 (including response actions at facilities operated by the

25 State or a political subdivision of the State) for which the
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1 State receives funds from the Fund under this section. A

2 State that receives funds from the Retroactive Liability

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

4 share requirements for the receipt of those funds.

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

6 A contract or agreement for a State authorization or refer7 ral under this section is subject to such terms and condi8 tions as the Administrator prescribes. The terms and con9 ditions shall include requirements for periodic auditing

10 and reporting of State expenditures from the Fund and

11 the Retroactive Liability Fund. The contract or agreement

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

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

14 Priorities List in the State. The contract or agreement

15 shall require the State to seek cost recovery, as con16 templated by this Act, of all expenditures from the Fund.

17 Ten percent of the moneys recovered by the State may

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

19 response program, and the remainder shall be returned

20 to the Fund. Before making further allocations from the

21 Fund to any State, the Administrator shall take into con22 sideration the effectiveness of the State’s enforcement pro23 gram and cost recovery efforts.

24 ‘‘(e) ENFORCEMENT OF AGREEMENTS.—If the Ad25 ministrator enters into a contract or agreement with a
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1 State pursuant to this section, and the State fails to com2 ply with any terms and conditions of the contract or agree3 ment, the Administrator, after providing 60 days notice,

4 may withdraw the State authorization or referral, or seek

5 in the appropriate Federal district court to enforce the

6 contract or agreement to recover any funds advanced or

7 any costs incurred because of the breach of the contract

8 or agreement by the State.

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

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

11 response action that achieves a level of cleanup that is

12 more stringent than required under section 121 of this

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

14 in response cost attributable to achieving the more strin15 gent cleanup level. Neither the Fund, the Retroactive Li16 ability Fund, nor any party liable for response costs shall

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

18 of cleanup required under section 121 of this Act.

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

20 Administrator shall make available, for public review and

21 comment, applications for authorization under subsection

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

23 Administrator shall not approve or withdraw authorization

24 or referral from a State unless the Administrator notifies
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1 the State, and makes public, in writing, the reasons for

2 such approval or withdrawal.

3 ‘‘(h) PERIODIC REVIEW OF AUTHORIZED STATE

4 PROGRAMS AND REFERRALS.—The Administrator shall

5 conduct a periodic review of authorized State programs

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

7 ‘‘(1) the response actions were selected and con8 ducted in a manner that was substantially consistent

9 with this Act, the National Contingency Plan, and

10 the contract or agreement between the Adminis11 trator and the State;

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

13 and Retroactive Liability Fund expenditures were in14 curred in the manner agreed to by the State, in ac15 cordance with the contract or agreement between the

16 Administrator and the State; and

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

18 enforcement efforts were conducted in accordance

19 with the contract or agreement between the Admin20 istrator and the State.

21 Within 1 year after the date of enactment of the Com22 prehensive Superfund Improvement Act, the Adminis23 trator, in consultation with the States, shall develop spe24 cific criteria for periodic reviews of authorized State pro25 grams and referrals. The Administrator shall establish a
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1 mechanism to make the periodic State reviews available

2 to the public.’’.

3 (b) TRANSITION AND CONFORMING AMENDMENTS.—

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

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

6 Response, Compensation, and Liability Act of 1980

7 are each amended by inserting after the heading in

8 each paragraph the following—‘‘This paragraph ap9 plies only to response actions for which a Record of

10 Decision or other decision document is signed before

11 the date of enactment of the Comprehensive

12 Superfund Improvement Act.’’.

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

14 striking ‘‘Nothing’’ and inserting—‘‘Except as other15 wise provided in this Act, nothing’’;

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

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

18 may repeal, no earlier than one year after the pro19 mulgation of final regulations under sections

20 127(a)(3) and 127(b)(3), the regulations issued

21 under this paragraph prior to the date of enactment

22 of the Comprehensive Superfund Improvement

23 Act.’’;

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

25 such Act are each amended in the second sentence
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1 of subparagraph (A) by striking ‘‘does not attain a

2 legally applicable or relevant and appropriate stand3 ard, requirement, criteria, or limitation, under the

4 authority of subsection(d)(4)’’ and inserting in lieu

5 thereof ‘‘is not relevant and appropriate under

6 subsection(d),’’.

7 (5) Section 302(d) of such Act is amended by

8 striking ‘‘Nothing’’ and inserting—‘‘Except as other9 wise provided in this Act, nothing’’.

10 SEC. 202. TRANSFER OF AUTHORITIES.

11 Section 120(g) of the Comprehensive Environmental

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

13 U.S.C. 9620(g)) is amended by inserting after ‘‘the Envi14 ronmental Protection Agency,’’ the following: ‘‘and except

15 as provided in section 127,’’.

16 SEC. 203. EPA OVERSIGHT COSTS.

17 (a) OVERSIGHT COST ACCOUNTING AND APPEAL

18 PROCEDURE.—Section 104(a) of the Comprehensive Envi19 ronmental Response, Compensation, and Liability Act of

20 1980 (42 U.S.C. 9604(a)) is amended by adding at the

21 end the following new paragraph:

22 ‘‘(5) OVERSIGHT COST ACCOUNTING AND APPEAL

23 PROCEDURE.—(A) The President shall maintain detailed

24 and timely records of the costs incurred under, or in con25 nection with, any oversight contract or arrangement re-
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1 ferred to in paragraph (1). The President shall submit

2 such records to the responsible party that has agreed to

3 reimburse the Fund for such costs with each demand or

4 bill for such costs.

5 ‘‘(B) The President shall establish an administrative

6 procedure under which a party that conducts any response

7 action may contest the amount of costs incurred by the

8 President in overseeing the conduct of that response ac9 tion. The procedure shall be carried out separately from

10 the conduct of the response action at the facility con11 cerned.’’.

12 (b) LIMITATION ON OVERSIGHT COSTS.—Any costs

13 of oversight incurred by the President that exceed 50 per14 cent of the response costs incurred by the responsible

15 party or parties at the facility concerned shall be paid by

16 the Fund, unless the responsible party or parties have pre17 viously agreed to pay a larger sum under a court decree

18 or the response action is being conducted under an order

19 issued under section 106 of the Comprehensive Environ20 mental Response, Compensation, and Liability Act of

21 1980.

22 TITLE III—REMEDY SELECTION

23 SEC. 301. IMMEDIATE RISK REDUCTION MEASURES.

24 (a) IMMEDIATE RISK REDUCTION MEASURES.—Sec25 tion 104(a) of the Comprehensive Environmental Re-
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1 sponse, Compensation, and Liability Act of 1980 is

2 amended—

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

4 and (4) as paragraphs (2), (3), (4), and (5), respec5 tively;

6 (2) in paragraph (5) (as redesignated), by strik7 ing out ‘‘paragraph (3)’’ and inserting in lieu thereof

8 ‘‘paragraph (4)’’; and

9 (2) by inserting after ‘‘(a)’’ the following new

10 paragraph (1): ‘‘(1) IMMEDIATE RISK REDUCTION

11 MEASURES.—

12 ‘‘(A) AUTHORITY TO ACT.—Whenever any haz13 ardous substance, pollutant, or contaminant is re14 leased or there is a substantial threat of such a re15 lease into the environment, and such release may

16 present an imminent and substantial danger to the

17 public health, the President, or the State in the case

18 of a facility for which a State has responsibility

19 under section 127, is authorized to act to minimize

20 and prevent to the extent possible the endangerment

21 to the public health.

22 ‘‘(B) TYPES OF MEASURES ALLOWED.—The ac23 tions that the President or a State may take under

24 this paragraph (hereinafter in this section referred
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1 to as ‘immediate risk reduction measures’) may in2 clude, but are not limited to, the following:

3 ‘‘(i) The removal of waste from barrels,

4 tanks, or lagoons.

5 ‘‘(ii) The provision of alternative water

6 supplies or point-of-use treatment.

7 ‘‘(iii) The prevention of discharges to sur8 face waters or ground waters.

9 ‘‘(iv) The installation of fencing.

10 ‘‘(v) The institution of other institutional

11 controls.

12 ‘‘(C) MEASURES PROHIBITED.—The authority

13 provided by this paragraph does not include author14 ity for the President or a State to institute long15 term remediation measures.

16 ‘‘(D) TIMING.—The President or a State shall

17 commence immediate risk reduction measures under

18 this paragraph—

19 ‘‘(i) in the case of a facility that is not

20 listed on the National Priorities List, as soon as

21 practicable after the President or the State be22 comes aware of an endangerment to the public

23 health; and
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1 ‘‘(ii) in the case of a facility that is listed

2 on the National Priorities List, not later than

3 60 days after the facility is so listed.

4 ‘‘(E) COST EFFECTIVENESS.—Any immediate

5 risk reduction measure carried out under this para6 graph shall be conducted in the most cost-effective

7 manner practicable.

8 ‘‘(F) FUNDING.—The Fund may be used to pay

9 for immediate risk reduction measures taken under

10 this paragraph. The President may (in accordance

11 with title V) recover the costs of such measures from

12 any person determined to be liable for such costs

13 but, in the case of measures costing less than

14 $1,000,000, the President may choose not to recover

15 such costs.

16 ‘‘(G) JUDICIAL REVIEW.—The decision of the

17 President or a State to act under this subsection is

18 subject to review as provided in chapter 7 of title 5,

19 United States Code, except that a reviewing court

20 may set aside an action only if it is found to be arbi21 trary, capricious, an abuse of discretion, or other22 wise not in accordance with law. Review may be had

23 only in the United States district court for the dis24 trict in which the facility or site is located.’’.
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1 (b) EFFECTIVE DATE.—The amendment made by

2 subsection (a) shall take effect on the date of the enact3 ment of this Act.

4 SEC. 302. SITE SCORING.

5 Section 105(c)(1) of the Comprehensive Environ6 mental Response, Compensation, and Liability Act of

7 1980 (42 U.S.C. 9605(c)(1)) is amended—

8 (1) by inserting ‘‘(A)’’ after ‘‘REVISION.—’’;

9 and

10 (2) by adding at the end the following new sub11 paragraph

12 ‘‘(B)(i) After the date of enactment of the Com13 prehensive Superfund Improvement Act, the hazard

14 ranking system shall be applied to a site or facility

15 only after the site or facility has undergone imme16 diate risk reduction measures pursuant to section

17 104(a)(1). In applying such ranking system, condi18 tions existing at the site or facility before the imme19 diate risk reduction measures were taken shall not

20 be taken into account.

21 ‘‘(ii) Clause (i) shall apply to all sites and facili22 ties to be newly listed on the National Priorities List

23 after such date of enactment and to any sites al24 ready so listed as of such date of enactment but for
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1 which a remedial investigation and feasibility study

2 has not been conducted as of such date.

3 ‘‘(iii) As soon as practicable after such date of

4 enactment, the President shall revise the hazard

5 ranking system regulations to reflect the require6 ments in this subparagraph. ’’.

7 SEC. 303. LONG-TERM RESPONSE PLAN.

8 (a) IN GENERAL.—Section 104(a) of the Comprehen9 sive Environmental Response, Compensation, and Liabil10 ity Act of 1980, as amended by section 301, is further

11 amended by adding at the end the following new para12 graph:

13 ‘‘(6) LONG-TERM RESPONSE PLAN.—

14 ‘‘(A) IN GENERAL.—Before carrying out or al15 lowing another person to carry out a response action

16 at a facility under this subsection, the President, or

17 the State in the case of a facility for which a State

18 has responsibility under section 127, shall prepare a

19 long-term response plan (hereinafter in this section

20 referred to as an ‘LTRP’ or ‘plan’) for such facility.

21 The President or State may allow a potentially re22 sponsible party to prepare such a plan and to carry

23 out the elements of the plan listed in clauses (i), (ii),

24 and (iv) of subparagraph (B).
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1 ‘‘(B) ELEMENTS OF LTRP.—The LTRP shall

2 address the following elements:

3 ‘‘(i) SITE CHARACTERIZATION.—The site

4 characterization element of the plan shall deter5 mine the type, nature, and extent of contamina6 tion at the facility, including the location of the

7 sources of the release or threatened release.

8 The site characterization component shall be

9 completed within 12 months after a facility is

10 listed on the National Priorities List.

11 ‘‘(ii) RISK ASSESSMENT.—The risk assess12 ment element of the plan shall be carried out in

13 accordance with paragraph (7). The risk assess14 ment component shall be performed simulta15 neously with the site characterization compo16 nent and shall be completed within 12 months

17 after a facility is listed on the National Prior18 ities List.

19 ‘‘(iii) COMMUNITY ADVISORY COUNCILS.—

20 The plan shall take into account any rec21 ommendations made by the community advisory

22 council for the facility created under section

23 117(f). The council shall provide its rec24 ommendations with respect to the facility within
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1 12 months after a facility is listed on the Na2 tional Priorities List.

3 ‘‘(iv) RESPONSE OPTION IDENTIFICA4 TION.—The response option identification ele5 ment of the plan shall be carried out in accord6 ance with paragraph (8) during the 3-month

7 period beginning on the date on which the ele8 ments listed in clauses (i) through (iii) are com9 pleted.

10 ‘‘(C) APPLICABILITY.—(i) A long-term response

11 plan shall be required for the following:

12 ‘‘(I) A facility to be newly listed on the

13 National Priorities List after the date of enact14 ment of the Comprehensive Superfund Improve15 ment Act.

16 ‘‘(II) A facility or site listed on the Na17 tional Priorities List as of such date of enact18 ment but for which a remedial investigation and

19 feasibility study has not been conducted as of

20 such date.

21 ‘‘(III) A facility or site listed on the Na22 tional Priorities List as of such date of enact23 ment, for which a remedial investigation and

24 feasibility study has been conducted as of such

25 date, but for which a contract has not been exe-
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1 cuted for remedial design and remedial action

2 as of such date, if the potentially responsible

3 parties and the State in which the facility or

4 site is located agree, within 30 days after such

5 date, to subject themselves to the requirements

6 of an LTRP.

7 ‘‘(ii) A long-term response plan shall not be required

8 for any facility or site with respect to which a contract

9 has been executed for remedial design and remedial action

10 as of such date of enactment. ’’.

11 (b) RISK ASSESSMENTS.—(1) Section 104(a) of the

12 Comprehensive Environmental Response, Compensation,

13 and Liability Act of 1980 (42 U.S.C. 9604(a)), as amend14 ed by section 301 and this section, is further amended

15 by adding at the end the following new paragraph:

16 ‘‘(7) RISK ASSESSMENTS.—

17 ‘‘(A) IN GENERAL.—In carrying out a remedial

18 investigation with respect to a facility, the President

19 or other person carrying out the investigation shall

20 assess the risk to human health and the environment

21 presented by the release or threat of release of a

22 hazardous substance, pollutant, or contaminant. The

23 risk assessment component of the remedial investiga24 tion shall be carried out in compliance with regula25 tions promulgated by the President. The President
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1 shall ensure that the regulations do not conflict with

2 regional or State guidance on risk assessments. At

3 a minimum, the regulations shall—

4 ‘‘(i) require risk assessments to use expo5 sure factors that accurately describe site or fa6 cility conditions; and

7 ‘‘(ii) require that values used to describe

8 quantities of a substance consumed by people

9 accurately reflect average conditions.

10 ‘‘(B) CURRENT RISK VERSUS FUTURE RISK.—

11 In carrying out the risk assessment component of

12 the remedial investigation, the President or other

13 person carrying out the assessment shall separately

14 evaluate (i) the current risks, and (ii) the likely fu15 ture risks, to human health and the environment,

16 based on current and likely future land use of the

17 site. If the President determines that one or more

18 such risks exist and warrant remedial action, the

19 President shall specify in the record of decision

20 which risks support the decision for remedial action,

21 which risks are current risks, and which risks are

22 likely future risks.

23 ‘‘(C) BEST ESTIMATES VERSUS WORST CASE.—

24 In carrying out the risk assessment component of

25 the remedial investigation, the President or other
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1 person carrying out the assessment shall rely to the

2 maximum extent practicable on actual data rather

3 than on assumptions. The President or other person

4 shall provide the most plausible estimate of any risk

5 to human health and the environment. The Presi6 dent or other person also shall describe any assump7 tions or uncertainties that pertain to such estimate,

8 including the likelihood of human exposure actually

9 occurring. Whenever the President or other person

10 considers it feasible, the President shall provide a

11 quantitative estimate of the uncertainty associated

12 with the most plausible estimate of the risk.’’.

13 (1) PERFORMANCE OF RISK ASSESSMENTS BY

14 PRPS.—Section 104(a)(1) of such Act is amended in the

15 second sentence—

16 (A) by striking out ‘‘may’’ and inserting in lieu

17 thereof ‘‘shall’’; and

18 (B) by inserting after ‘‘remedial investigation’’

19 the following: ‘‘(including the risk assessment com20 ponent of the remedial investigation)’’.

21 (c) COMMUNITY ADVISORY COUNCILS.—Section 117

22 of the Comprehensive Environmental Response, Com23 pensation, and Liability Act of 1980 (42 U.S.C. 9607) is

24 amended by adding at the end the following:

25 ‘‘(f) COMMUNITY ADVISORY COUNCILS.—
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1 ‘‘(1) CREATION.—The Administrator shall cre2 ate a Community Advisory Council for each facility

3 listed on the National Priorities List. Such Council

4 shall be comprised of not more than 20 persons ap5 pointed by the Governor of the State in which the

6 facility is located from among persons in the com7 munity in which the facility is located. Each such

8 council shall represent a wide variety of local inter9 ests.

10 ‘‘(2) PURPOSE.—The Community Advisory

11 Councils shall provide information to potentially re12 sponsible parties, the Administrator, and the State

13 with regard to the future use of the facility and af14 fected off-site areas and resources. The councils

15 shall provide a public forum for citizens to voice con16 cerns regarding the response action to be taken and

17 the future use of the site.

18 ‘‘(3) RECOMMENDATIONS.—The President and

19 the State shall taken into consideration any rec20 ommendations made by a Community Advisory

21 Council in making decisions regarding any response

22 action under this title at the facility for which such

23 council was established.

24 ‘‘(4) TECHNICAL AND ADMINISTRATIVE SUP25 PORT FOR COMMUNITY ADVISORY COUNCILS.—The
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1 Administrator’s regional offices shall provide admin2 istrative and technical services for Community Advi3 sory Councils, including technical assistance in un4 derstanding this title and the regulations under this

5 title.’’.

6 (d) RESPONSE OPTION IDENTIFICATION.—(1) Sec7 tion 104(a) of the Comprehensive Environmental Re8 sponse, Compensation, and Liability Act of 1980 (42

9 U.S.C. 9604(a)), as amended by section 301 and this sec10 tion, is further amended by adding at the end the following

11 new paragraph:

12 ‘‘(8) RESPONSE OPTION IDENTIFICATION.—(A) The

13 response option identification element of a long-term re14 mediation plan shall consist of the development of the

15 range of possible response actions for a facility and the

16 conduct of a cost-benefit analysis on each of the following

17 categories of possible response actions:

18 ‘‘(i) Containment (both permanent and

19 temporary).

20 ‘‘(ii) Remediation.

21 ‘‘(iii) Monitoring.

22 ‘‘(iv) Delisting.

23 ‘‘(v) Institutional controls.

24 ‘‘(B) The President, the State, or the other person

25 carrying out the identification shall take into account ad-
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1 vice from the Community Advisory Council created for the

2 facility concerned.

3 ‘‘(C) During the 30-day period occurring after com4 pletion of the response option identification, the Commu5 nity Advisory Council, potentially responsible parties, and

6 any other interested parties may submit comments to the

7 President or the State on preferred options.’’.

8 (2) COST-BENEFIT REGULATIONS.—Section 105 of

9 the Comprehensive Environmental Response, Compensa10 tion, and Liability Act of 1980 (42 U.S.C. 9605) is

11 amended by adding at the end the following new sub12 section:

13 ‘‘(h) COST-BENEFIT REGULATIONS.—(1) The Presi14 dent shall promulgate and include in the national contin15 gency plan guidelines for conducting cost/benefit analyses

16 of response actions conducted pursuant to this Act. The

17 guidelines shall include a standard methodology for evalu18 ating benefits and costs over the lifetime of a remedial

19 action.

20 ‘‘(2) In developing the standard methodology under

21 paragraph (1), the President shall seek and take into ac22 count suggestions from States and political subdivisions

23 of States for which costs and benefits to include in a cost24 benefit analysis, and which methods to use in evaluating
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1 the costs and benefits. The costs may include costs related

2 to public welfare.

3 ‘‘(3) In developing the methodology for measuring the

4 costs of a remedial action, the President, at a minimum,

5 shall take into account the following costs:

6 ‘‘(A) Costs associated with the remedial action,

7 including the following:

8 ‘‘(i) Direct capital costs.

9 ‘‘(ii) Operation and maintenance costs.

10 ‘‘(iii) Preconstruction costs, including per11 mitting, siting, and regulatory compliance costs.

12 ‘‘(iv) Capital acquisition, amortization, and

13 debt service costs.

14 ‘‘(v) Consulting costs.

15 ‘‘(vi) Costs and potential liabilities of fu16 ture environmental remediation if the remedial

17 action does not provide for a permanent rem18 edy.

19 ‘‘(vii) Land acquisition costs.

20 ‘‘(viii) Costs of insurance.

21 ‘‘(B) Avoided or additional costs of cleaning up

22 the contamination using an alternative treatment

23 technology.

24 ‘‘(4) In developing the methodology for measuring the

25 benefits of a remedial action, the President shall, at a min-
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1 imum, take into account the costs of benefits associated

2 with the remedial action, including the following:

3 ‘‘(A) Increased property values.

4 ‘‘(B) Reduced public health risks.

5 ‘‘(C) Reduced ecological risks.

6 ‘‘(D) Improved environmental quality in the

7 community.’’.

8 SEC. 304. LONG-TERM RESPONSE SELECTION.

9 (a) LONG-TERM RESPONSE SELECTION.—Section

10 121(a) of the Comprehensive Environmental Response,

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

12 9621(a)) is amended to read as follows:

13 ‘‘(a) RESPONSE SELECTION.—

14 ‘‘(1) SECTION 104.—After completion of the

15 long-term response plan for a facility under section

16 104, the President, or the State in the case of a fa17 cility for which a State has responsibility under sec18 tion 127, shall select that response or combination

19 of responses (from among the options identified in

20 the plan) that best achieves an acceptable level of re21 sidual risk reduction at the facility or site (referred

22 to as the ‘cleanup goal’), in accordance with the gen23 eral rules stated in subsection (b).

24 ‘‘(2) SECTION 106.—With respect to actions de25 termined to be necessary by the President to be se-
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1 cured under section 106, the President shall select

2 appropriate remedial actions that are in accordance

3 with this section and, to the extent practicable, the

4 national contingency plan, and which provide for

5 cost-effective response.’’

6 (b) GENERAL RULES FOR RESPONSE SELECTION.—

7 Section 121(b) of such Act is amended to read as follows:

8 ‘‘(b) GENERAL RULES.—

9 ‘‘(1) SELECTION PROCESS.—In selecting a re10 sponse action under this section, the President (or

11 State, as the case may be) shall review the long-term

12 response plan for the facility or site and consider

13 any recommendations submitted to it from the Com14 munity Advisory Council, the potentially responsible

15 parties, and the general public.

16 ‘‘(2) FACTORS TO BE CONSIDERED.—In select17 ing a response action, the President shall take into

18 account the following:

19 ‘‘(A) Site-specific factors, including the

20 current and likely future uses of the land and

21 the ground water (including any designated

22 uses or institutional controls), the potential for

23 human exposure to contamination, the actual

24 risk to human health, and the degree and type

25 of contamination.
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1 ‘‘(B) The economic impact of the action on

2 the potentially responsible parties. In the case

3 of a potentially responsible party which is a mu4 nicipality or other subdivision of a State (in5 cluding municipalities that are owners or opera6 tors of landfills), the President shall take into

7 account the funding priorities of the commu8 nity.

9 ‘‘(C) The costs and benefits of the re10 sponse options, as determined by cost-benefit

11 analysis under section 104(a)(8).

12 ‘‘(3) TYPES OF RESPONSES THAT MAY BE SE13 LECTED.—The types of response actions that the

14 President (or State, as the case may be) may select

15 include the following:

16 ‘‘(A) Monitoring.

17 ‘‘(B) Containment or stabilization, if the

18 President or State finds that any of the follow19 ing conditions exist with respect to the facility

20 concerned:

21 ‘‘(i) The risks to human health or the

22 environment are low.

23 ‘‘(ii) The costs of other types of reme24 diation, including treatment, are extremely

25 high.
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1 ‘‘(iii) No proven technology exists for

2 achieving a permanent and significant de3 crease in the toxicity, mobility, or volume

4 of the hazardous substance, pollutant, or

5 contaminant concerned that is propor6 tionate to the risk to human health or the

7 environment.

8 ‘‘(C) Institutional controls as part of a

9 permanent remedy. The President shall give

10 preference to using such controls at facilities

11 with low future risk (as determined in the risk

12 assessment component of a Long-Term Re13 sponse Plan). Such controls include zoning ordi14 nances and other ordinances that restrict access

15 to or use of property (including groundwater

16 management zones), physical barriers that re17 strict access to property (such as fences), and

18 such other controls as the President (or State)

19 considers appropriate.

20 ‘‘(4) PREFERENCE FOR CERTAIN TYPE OF AC21 TION.—In selecting a response action, the President

22 (or State) shall, with reference to the factors set

23 forth in section 121(b)(2), prefer response actions

24 that significantly reduce the volume, toxicity, or mo25 bility of the hazardous substances, pollutants, and
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1 contaminants, or that significantly reduce actual or

2 threatened exposure to such hazardous substances,

3 pollutants, or contaminants.

4 ‘‘(5) LIMITATION ON STANDARDIZED REM5 EDIES.—The President (or State) shall not select a

6 response action that is a standardized remedy in any

7 case in which the use of an alternative technology

8 would be less expensive but as protective of health

9 and the environment as the standardized remedy.

10 For purposes of this paragraph, the term ‘standard11 ized remedy’ means a remedy that is determined by

12 the President to be protective of human health and

13 the environment for a category of facilities.

14 ‘‘(6) COMPLIANCE BOUNDARIES.— The Presi15 dent (or State), in determining the boundaries with16 in which a response action is to be achieved, shall

17 extend site or facility boundaries to include areas

18 subject to easements or other institutional controls,

19 such as zones of groundwater management.

20 ‘‘(7) JUDICIAL REVIEW.—The selection of a re21 sponse action by the President or a State under this

22 subsection is subject to review as provided in chapter

23 7 of title 5, United States Code, except that a re24 viewing court may set aside an action only if it is

25 found to be arbitrary, capricious, an abuse of discre-
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1 tion, or otherwise not in accordance with law. Re2 view may be had only in the United States district

3 court for the district in which the facility or site is

4 located. In any such review, the facts of the case are

5 subject to a trial de novo by the reviewing court.

6 Any appeal of the selection of a response action shall

7 be filed within 60 days after the selection is made.

8 ‘‘(8) DEADLINE FOR IMPLEMENTATION TO

9 BEGIN.—The implementation of a response action

10 selected pursuant to this section shall begin no later

11 than 60 days after the selection has been made

12 and—

13 ‘‘(A) an appeal of such selection has been

14 filed and a court has finally acted upon such

15 appeal; or

16 ‘‘(B) the time for filing an appeal of such

17 selection has expired and no appeal has been

18 filed.’’.

19 (c) REPEAL OF ARARS CLEANUP STANDARDS.—

20 Section 121(d) of the Comprehensive Environmental Re21 sponse, Compensation, and Liability Act of 1980 (42

22 U.S.C. 9621(d)) is amended—

23 (1) by striking out paragraphs (2), (3), and (4);

24 and

25 (2) by striking out ‘‘(1)’’.
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1 (d) APPLICABILITY.—The amendments made by this

2 section shall apply with respect to any facility or site with

3 respect to which—

4 (1) no contract for remedial design and reme5 dial action has been executed as of the date of the

6 enactment of this Act; and

7 (2) the pertinent parties have not opted to sub8 ject themselves to the long-term response plan and

9 related requirements within 30 days after such date

10 of enactment (as described in section 104(a)(6)(C)).

11 (e) CROSS REFERENCE AMENDMENT.—Section

12 104(c)(4) of such Act is amended to read as follows:

13 ‘‘(4) SELECTION OF RESPONSE.—The President

14 shall select response actions to carry out this section in

15 accordance with section 121 of this Act.’’.

16 SEC. 305. PERIODIC REVIEW.

17 Section 121(c) of the Comprehensive Environmental

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

19 U.S.C. 9621(c)) is amended by striking out the first two

20 sentences and inserting in lieu thereof the following: ‘‘The

21 President, or the State in the case of a facility for which

22 a State has responsibility under section 127, shall review

23 each response action selected under this section not less

24 often than once every 5 years after the initiation of the

25 action to assure that human health and the environment
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1 are being protected by the action being implemented. If

2 upon such review it is the judgment of the President or

3 State that additional actions are appropriate at such site

4 in accordance with section 104, the President or State

5 shall take or require such action, including a supplemental

6 long-term response plan under section 104. In the case

7 of a review carried out by the President, if it is the judg8 ment of the President that additional actions are appro9 priate at such site in accordance with section 106, the

10 President or State shall take or require such action.’’.

11 SEC. 306. DELISTING OF FACILITIES AND SITES.

12 Section 105 of the Comprehensive Environmental Re13 sponse, Compensation, and Liability Act of 1980 (42

14 U.S.C. 9605) is amended by adding at the end the follow15 ing new subsection:

16 ‘‘(h) DELISTING OF FACILITIES AND SITES.—After

17 a response action selected for a site or facility achieves

18 the cleanup goal set for such facility under section 121(a),

19 the President shall delist the site or facility from the Na20 tional Priorities List. Such delisting may occur even if

21 monitoring or operation and maintenance are being con22 ducted at the facility.’’.
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1 TITLE IV—FUNDING

2 SEC. 401. 5-YEAR EXTENSION OF HAZARDOUS SUBSTANCE

3 SUPERFUND.

4 (a) EXTENSION OF TAXES.—

5 (1) The following provisions of the Internal

6 Revenue Code of 1986 are each amended by striking

7 ‘‘January 1, 1996’’ each place it appears and insert8 ing ‘‘January 1, 2001’’:

9 (A) Section 59A(e)(1) (relating to applica10 tion of environmental tax).

11 (B) Paragraphs (1) and (3) of section

12 4611(e) (relating to application of Hazardous

13 Substance Superfund financing rate).

14 (2) Paragraph (2) of section 4611(e) of such

15 Code is amended—

16 (A) by striking ‘‘1993’’ and inserting

17 ‘‘1998’’,

18 (B) by striking ‘‘1994’’ each place it ap19 pears and inserting ‘‘1999’’, and

20 (C) by striking ‘‘1995’’ each place it ap21 pears and inserting ‘‘2000’’.

22 (b) INCREASE IN AGGREGATE TAX WHICH MAY BE

23 COLLECTED.—Paragraph (3) of section 4611(e) of such

24 Code is amended by striking ‘‘$11,970,000,000’’ each

25 place it appears and inserting ‘‘$26,970,000,000’’ and by
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1 striking ‘‘December 31, 1995’’ and inserting ‘‘December

2 31, 2000’’.

3 (c) EXTENSION OF REPAYMENT DEADLINE FOR

4 SUPERFUND BORROWING.—Subparagraph (B) of section

5 9507(d)(3) is amended by striking ‘‘December 31, 1995’’

6 and inserting ‘‘December 31, 2000’’.

7 (d) EXTENSION OF AUTHORIZATION OF APPROPRIA8 TIONS TO TRUST FUND.—Subsection (b) of section 517

9 of the Superfund Revenue Act of 1986 (26 U.S.C. 9507

10 note) is amended by striking ‘‘and’’ at the end of para11 graph (8), by striking the period at the end of paragraph

12 (9) and inserting ‘‘, and’’, and by adding at the end there13 of the following new paragraphs:

14 ‘‘(10) 1996, $250,000,000,

15 ‘‘(11) 1997, $250,000,000,

16 ‘‘(12) 1998, $250,000,000,

17 ‘‘(12) 1999, $250,000,000, and

18 ‘‘(13) 2000, $250,000,000,’’.

19 SEC. 402. INCREASE IN ENVIRONMENTAL INCOME TAX.

20 (a) IN GENERAL.—Subsection (a) of section 59A of

21 the Internal Revenue Code of 1986 (relating to environ22 mental tax) is amended by inserting ‘‘(0.24 percent in the

23 case of taxable years beginning after December 31, 1994,

24 and before January 1, 2000)’’.
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1 (b) INCREASED REVENUES NOT DEPOSITED IN

2 SUPERFUND.—Subsection (b) of section 9507 of such

3 Code (relating to Hazardous Substance Superfund) is

4 amended by adding at the end the following new sentence:

5 ‘‘Only 50 percent of the taxes received in the Treasury

6 under section 59A with respect to taxable years beginning

7 after December 31, 1994, and before January 1, 2000,

8 shall be taken into account under paragraph (1).’’

9 (c) EFFECTIVE DATE.—The amendment made by

10 subsection (a) shall apply to taxable years beginning after

11 December 31, 1994.

12 SEC. 403. ENVIRONMENTAL FEES AND ASSESSMENTS ON IN13 SURANCE COMPANIES.

14 (a) IN GENERAL.—The Internal Revenue Code of

15 1986 is amended by inserting after section ll the fol16 lowing new section:

17 ‘‘§ . Environmental fees and assessments on insur18 ance companies’’.

19 [RESERVED]

20 (b) CLERICAL AMENDMENTS.—The table of sections

21 for chapter ll of the Internal Revenue Code of 1986

22 is amended by inserting after the item relating to section

23 ll the following:
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1 ‘‘§ . Environmental fees and assessments on insur2 ance companies’’.

3 SEC. 404. RETROACTIVE LIABILITY FUND.

4 (a) IN GENERAL.—Subchapter A of chapter 98 of the

5 Internal Revenue Code of 1986 (relating to trust fund

6 code) is amended by adding at the end thereof the follow7 ing new section:

8 ‘‘SEC. 9512. RETROACTIVE LIABILITY FUND.

9 ‘‘(a) CREATION OF TRUST FUND.—There is estab10 lished in the Treasury of the United States a trust fund

11 to be known as the ‘Retroactive Liability Fund’, consisting

12 of such amounts as may be appropriated or credited to

13 such Fund as provided in this section or section 9602(b).

14 ‘‘(b) TRANSFERS TO FUND.—There are hereby ap15 propriated to the Retroactive Liability Fund—

16 ‘‘(1) amounts equivalent to 50 percent of the

17 revenues received in the Treasury from the tax im18 posed by section 59A (relating to environmental tax)

19 for taxable years beginning after December 31,

20 1994, and before January 1, 2000; and

21 ‘‘(2) amounts received from fees and assess22 ments imposed by the amendments made by section

23 403 of this Act.

24 ‘‘(c) EXPENDITURES FROM FUND.—Amounts in the

25 Retroactive Liability Fund shall be available, as provided

26 in appropriation Acts, only for purposes of making ex-
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1 penditures to carry out section 107(n) of the Comprehen2 sive Environmental Response, Compensation, and Liabil3 ity Act of 1980.’’

4 (b) CLERICAL AMENDMENT.—The table of sections

5 for such subchapter A is amended by adding at the end

6 thereof the following new item:

‘‘Sec. 9512. Retroactive Liability Fund.’’

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