II

106TH CONGRESS

1ST SESSION S. 1537

To reauthorize and amend the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980.

IN THE SENATE OF THE UNITED STATES

AUGUST 5, 1999

Mr. CHAFEE (for himself and Mr. SMITH of New Hampshire) introduced the

following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To reauthorize and amend the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

5 ‘‘Superfund Amendments and Reauthorization Act of

6 1999’’.

7 (b) TABLE OF CONTENTS.—The table of contents of

8 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—BROWNFIELDS REVITALIZATION
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Sec. 101. Brownfields.

Sec. 102. Contiguous properties.

Sec. 103. Prospective purchasers and windfall liens.

Sec. 104. Safe harbor innocent landholders.

TITLE II—STATE RESPONSE PROGRAMS

Sec. 201. State response programs.

Sec. 202. National Priorities List completion.

Sec. 203. Federal emergency removal authority.

Sec. 204. State cost share.

TITLE III—FAIR SHARE LIABILITY ALLOCATIONS AND

PROTECTIONS

Sec. 301. Liability exemptions and limitations.

Sec. 302. Expedited settlement for certain parties.

Sec. 303. Fair share settlements and statutory orphan shares.

Sec. 304. Treatment of religious, charitable, scientific, and educational organizations as owners or operators.

TITLE IV—REMEDY SELECTION AND NATURAL RESOURCE

DAMAGES

Sec. 401. Selection and implementation of remedial actions.

Sec. 402. Use of risk assessment in remedy selection.

Sec. 403. Natural resource damages.

Sec. 404. Double recovery.

TITLE V—FUNDING

Sec. 501. Uses of Hazardous Substance Superfund.

1 TITLE I—BROWNFIELDS

2 REVITALIZATION

3 SEC. 101. BROWNFIELDS.

4 Title I of the Comprehensive Environmental Re5 sponse, Compensation, and Liability Act of 1980 (42

6 U.S.C. 9601 et seq.) is amended by adding at the end

7 the following:

8 ‘‘SEC. 127. BROWNFIELDS.

9 ‘‘(a) DEFINITIONS.—In this section:

10 ‘‘(1) BROWNFIELD FACILITY.—
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1 ‘‘(A) IN GENERAL.—The term ‘brownfield

2 facility’ means real property, the expansion or

3 redevelopment of which is complicated by the

4 presence or potential presence of a hazardous

5 substance.

6 ‘‘(B) INCLUSION.—The term ‘brownfield

7 facility’ includes real property that is contami8 nated with cocaine, heroin, methamphetamine,

9 or any other controlled substance (as defined in

10 section 102 of the Controlled Substances Act

11 (21 U.S.C. 802)), a precursor chemical to a

12 controlled substance, or a residual chemical

13 from the manufacture of a controlled substance.

14 ‘‘(C) EXCLUSIONS.—The term ‘brownfield

15 facility’ does not include—

16 ‘‘(i) any portion of real property that,

17 as of the date of submission of an applica18 tion for assistance under this section, is

19 the subject of an ongoing removal under

20 this title;

21 ‘‘(ii) any portion of real property that

22 has been listed on the National Priorities

23 List or is proposed for listing as of the

24 date of the submission of an application

25 for assistance under this section;
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1 ‘‘(iii) any portion of real property with

2 respect to which cleanup work is pro3 ceeding in substantial compliance with the

4 requirements of an administrative order on

5 consent, or judicial consent decree that has

6 been entered into, or a permit issued by,

7 the United States or a duly authorized

8 State under this Act, the Solid Waste Dis9 posal Act (42 U.S.C. 6901 et seq.), section

10 311 of the Federal Water Pollution Con11 trol Act (33 U.S.C. 1321), the Toxic Sub12 stances Control Act (15 U.S.C. 2601 et

13 seq.), or the Safe Drinking Water Act (42

14 U.S.C. 300f et seq.);

15 ‘‘(iv) a land disposal unit with respect

16 to which—

17 ‘‘(I) a closure notification under

18 subtitle C of the Solid Waste Disposal

19 Act (42 U.S.C. 6921 et seq.) has been

20 submitted; and

21 ‘‘(II) closure requirements have

22 been specified in a closure plan or

23 permit;
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1 ‘‘(v) a facility that is owned or oper2 ated by a department, agency, or instru3 mentality of the United States; or

4 ‘‘(vi) a portion of a facility, for which

5 portion, assistance for response activity

6 has been obtained under subtitle I of the

7 Solid Waste Disposal Act (42 U.S.C. 6991

8 et seq.) from the Leaking Underground

9 Storage Tank Trust Fund established

10 under section 9508 of the Internal Rev11 enue Code of 1986.

12 ‘‘(C) FACILITIES OTHER THAN

13 BROWNFIELD FACILITIES.—That a facility may

14 not be a brownfield facility within the meaning

15 of subparagraph (A) has no effect on the eligi16 bility of the facility for assistance under any

17 provision of Federal law other than this section.

18 ‘‘(2) ELIGIBLE ENTITY.—

19 ‘‘(A) IN GENERAL.—The term ‘eligible en20 tity’ means—

21 ‘‘(i) a general purpose unit of local

22 government;

23 ‘‘(ii) a land clearance authority or

24 other quasi-governmental entity that oper25 ates under the supervision and control of
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1 or as an agent of a general purpose unit

2 of local government;

3 ‘‘(iii) a government entity created by

4 a State legislature;

5 ‘‘(iv) a regional council or group of

6 general purpose units of local government;

7 ‘‘(v) a redevelopment agency that is

8 chartered or otherwise sanctioned by a

9 State;

10 ‘‘(vi) a State; and

11 ‘‘(vii) an Indian Tribe.

12 ‘‘(B) EXCLUSION.—The term ‘eligible enti13 ty’ does not include any entity that is not in

14 substantial compliance with the requirements of

15 an administrative order on consent, judicial

16 consent decree that has been entered into, or a

17 permit issued by, the United States or a duly

18 authorized State under this Act, the Solid

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

20 the Federal Water Pollution Control Act (33

21 U.S.C. 1251 et seq.), the Toxic Substances

22 Control Act (15 U.S.C. 2601 et seq.), or the

23 Safe Drinking Water Act (42 U.S.C. 300f et

24 seq.) with respect to any portion of real prop25 erty that is the subject of the administrative
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1 order on consent, judicial consent decree, or

2 permit.

3 ‘‘(3) SECRETARY.—The term ‘Secretary’ means

4 the Secretary of Housing and Urban Development.

5 ‘‘(b) BROWNFIELD SITE CHARACTERIZATION AND

6 ASSESSMENT GRANT PROGRAM.—

7 ‘‘(1) ESTABLISHMENT OF PROGRAM.—The Ad8 ministrator shall establish a program to provide

9 grants for the site characterization and assessment

10 of brownfield facilities.

11 ‘‘(2) ASSISTANCE FOR SITE CHARACTERIZATION

12 AND ASSESSMENT AND RESPONSE ACTIONS.—

13 ‘‘(A) IN GENERAL.—On approval of an ap14 plication made by an eligible entity, the Admin15 istrator may make grants to the eligible entity

16 to be used for the site characterization and as17 sessment of 1 or more brownfield facilities.

18 ‘‘(B) SITE CHARACTERIZATION AND AS19 SESSMENT.—A site characterization and assess20 ment carried out with the use of a grant under

21 subparagraph (A)—

22 ‘‘(i) shall be performed in accordance

23 with section 101(35)(B); and
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1 ‘‘(ii) may include a process to identify

2 and inventory potential brownfield facili3 ties.

4 ‘‘(c) BROWNFIELD REMEDIATION GRANT PRO5 GRAM.—

6 ‘‘(1) ESTABLISHMENT OF PROGRAM.—In con7 sultation with the Secretary, the Administrator shall

8 establish a program to provide grants to be used for

9 response actions (excluding site characterization and

10 assessment) at 1 or more brownfield facilities.

11 ‘‘(2) ASSISTANCE FOR RESPONSE ACTIONS.—

12 On approval of an application made by an eligible

13 entity, the Administrator, in consultation with the

14 Secretary, may make grants to the eligible entity to

15 be used for response actions (excluding site charac16 terization and assessment) at 1 or more brownfield

17 facilities.

18 ‘‘(d) GENERAL PROVISIONS.—

19 ‘‘(1) MAXIMUM GRANT AMOUNT.—

20 ‘‘(A) IN GENERAL.—The total of all grants

21 under subsections (b) and (c) shall not exceed,

22 with respect to any individual brownfield facility

23 covered by the grants, $350,000.

24 ‘‘(B) WAIVER.—The Administrator may

25 waive the $350,000 limitation under subpara-
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1 graph (A) based on the anticipated level of con2 tamination, size, or status of ownership of the

3 facility, so as to permit the facility to receive a

4 grant of not to exceed $600,000.

5 ‘‘(2) PROHIBITION.—

6 ‘‘(A) IN GENERAL.—No part of a grant

7 under this section may be used for payment of

8 penalties, fines, or administrative costs.

9 ‘‘(B) EXCLUSIONS.—For the purposes of

10 subparagraph (A), the term ‘administrative

11 cost’ does not include the cost of—

12 ‘‘(i) investigation and identification of

13 the extent of contamination;

14 ‘‘(ii) design and performance of a re15 sponse action; or

16 ‘‘(iii) monitoring of natural resources.

17 ‘‘(3) AUDITS.—The Inspector General of the

18 Environmental Protection Agency shall conduct such

19 reviews or audits of grants under this section as the

20 Inspector General considers necessary to carry out

21 the objectives of this section. Audits shall be con22 ducted in accordance with the auditing procedures of

23 the General Accounting Office, including chapter 75

24 of title 31, United States Code.
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1 ‘‘(4) LEVERAGING.—An eligible entity that re2 ceives a grant under this section may use the funds

3 for part of a project at a brownfield facility for

4 which funding is received from other sources, but

5 the grant shall be used only for the purposes de6 scribed in subsection (b) or (c).

7 ‘‘(5) AGREEMENTS.—Each grant made under

8 this section shall be subject to an agreement that—

9 ‘‘(A) requires the eligible entity to comply

10 with all applicable State laws (including regula11 tions);

12 ‘‘(B) requires that the eligible entity shall

13 use the grant exclusively for purposes specified

14 in subsection (b) or (c);

15 ‘‘(C) in the case of an application by an el16 igible entity under subsection (c), requires pay17 ment by the eligible entity of a matching share

18 (which may be in the form of a contribution of

19 labor, material, or services) of at least 20 per20 cent of the costs of the response action for

21 which the grant is made, is from non-Federal

22 sources of funding.

23 ‘‘(D) contains such other terms and condi24 tions as the Administrator determines to be

25 necessary to carry out this section.
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1 ‘‘(e) GRANT APPLICATIONS.—

2 ‘‘(1) SUBMISSION.—

3 ‘‘(A) IN GENERAL.—Any eligible entity

4 may submit an application to the Adminis5 trator, through a regional office of the Environ6 mental Protection Agency and in such form as

7 the Administrator may require, for a grant

8 under this section for 1 or more brownfield fa9 cilities.

10 ‘‘(B) COORDINATION.—In developing ap11 plication requirements, the Administrator shall

12 coordinate with the Secretary and other Federal

13 agencies and departments, such that eligible en14 tities under this section are made aware of

15 other available Federal resources.

16 ‘‘(C) GUIDANCE.—The Administrator shall

17 publish guidance to assist eligible entities in ob18 taining grants under this section.

19 ‘‘(2) APPROVAL.—The Administrator, in con20 sultation with the Secretary, shall make an annual

21 evaluation of each application received during the

22 prior fiscal year and make grants under this section

23 to eligible entities that submit applications during

24 the prior year and that the Administrator, in con25 sultation with the Secretary, determines have the
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1 highest rankings under the ranking criteria estab2 lished under paragraph (3).

3 ‘‘(3) RANKING CRITERIA.—The Administrator,

4 in consultation with the Secretary, shall establish a

5 system for ranking grant applications that includes

6 the following criteria:

7 ‘‘(A) The extent to which a grant will stim8 ulate the availability of other funds for environ9 mental remediation and subsequent redevelop10 ment of the area in which the brownfield facili11 ties are located.

12 ‘‘(B) The potential of the development plan

13 for the area in which the brownfield facilities

14 are located to stimulate economic development

15 of the area on completion of the cleanup, such

16 as the following:

17 ‘‘(i) The relative increase in the esti18 mated fair market value of the area as a

19 result of any necessary response action.

20 ‘‘(ii) The demonstration by applicants

21 of the intent and ability to create new or

22 expand existing business, employment,

23 recreation, or conservation opportunities

24 on completion of any necessary response

25 action.
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1 ‘‘(iii) If commercial redevelopment is

2 planned, the estimated additional full-time

3 employment opportunities and tax revenues

4 expected to be generated by economic rede5 velopment in the area in which a

6 brownfield facility is located.

7 ‘‘(iv) The estimated extent to which a

8 grant would facilitate the identification of

9 or facilitate a reduction of health and envi10 ronmental risks.

11 ‘‘(v) The financial involvement of the

12 State and local government in any re13 sponse action planned for a brownfield fa14 cility and the extent to which the response

15 action and the proposed redevelopment is

16 consistent with any applicable State or

17 local community economic development

18 plan.

19 ‘‘(vi) The extent to which the site

20 characterization and assessment or re21 sponse action and subsequent development

22 of a brownfield facility involves the active

23 participation and support of the local com24 munity.
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1 ‘‘(vii) Such other factors as the Ad2 ministrator considers appropriate to carry

3 out the purposes of this section.

4 ‘‘(C) The extent to which a grant will en5 able the creation of or addition to parks, green6 ways, or other recreational property.

7 ‘‘(D) The extent to which a grant will meet

8 the needs of a community that has an inability

9 to draw on other sources of funding for environ10 mental remediation and subsequent redevelop11 ment of the area in which a brownfield facility

12 is located because of the small population or

13 low income of the community.’’.

14 SEC. 102. CONTIGUOUS PROPERTIES.

15 (a) IN GENERAL.—Section 107 of the Comprehensive

16 Environmental Response, Compensation, and Liability Act

17 of 1980 (42 U.S.C. 9607(a)) is amended by adding at the

18 end the following:

19 ‘‘(o) CONTIGUOUS PROPERTIES.—

20 ‘‘(1) NOT CONSIDERED TO BE AN OWNER OR

21 OPERATOR.—

22 ‘‘(A) IN GENERAL.—A person that owns or

23 operates real property that is contiguous to or

24 otherwise similarly situated with respect to real

25 property on which there has been a release or
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1 threatened release of a hazardous substance

2 and that is or may be contaminated by the re3 lease shall not be considered to be an owner or

4 operator of a vessel or facility under paragraph

5 (1) or (2) of subsection (a) solely by reason of

6 the contamination if—

7 ‘‘(i) the person did not cause, con8 tribute, or consent to the release or threat9 ened release;

10 ‘‘(ii) the person is not affiliated

11 through any familial or corporate relation12 ship with any person that is or was a party

13 potentially responsible for response costs at

14 the facility;

15 ‘‘(iii) the person exercised appropriate

16 care with respect to each hazardous sub17 stance found at the facility by taking rea18 sonable steps to stop any continuing re19 lease, prevent any threatened future re20 lease and prevent or limit human or nat21 ural resource exposure to any previously

22 released hazardous substance;

23 ‘‘(iv) the person provides full coopera24 tion, assistance, and access to persons that

25 are responsible for response actions at the
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1 vessel or facility from which there has been

2 a release or threatened release, including

3 the cooperation and access necessary for

4 the installation, integrity, operation, and

5 maintenance of any complete or partial re6 sponse actions at the vessel or facility;

7 ‘‘(v) the person does not impede the

8 effectiveness or integrity of any institu9 tional control employed at the vessel or fa10 cility; and

11 ‘‘(vi) the person complies with any re12 quest for information or administrative

13 subpoena issued by the President under

14 this Act.

15 ‘‘(B) GROUND WATER.—With respect to

16 hazardous substances in ground water beneath

17 a person’s property solely as a result of sub18 surface migration in an aquifer from a source

19 or sources outside the property, appropriate

20 care shall not require the person to conduct

21 ground water investigations or to install ground

22 water remediation systems.

23 ‘‘(2) ASSURANCES.—The Administrator may—

24 ‘‘(A) issue an assurance that no enforce25 ment action under this Act will be initiated
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1 against a person described in paragraph (1);

2 and

3 ‘‘(B) grant a person described in para4 graph (1) protection against a cost recovery or

5 contribution action under section 113(f).’’.

6 (b) NATIONAL PRIORITIES LIST.—

7 (1) IN GENERAL.—Section 105 of the Com8 prehensive Environmental Response, Compensation,

9 and Liability Act of 1980 (42 U.S.C. 9605) is

10 amended—

11 (A) in subsection (a)(8)—

12 (i) in subparagraph (B), by inserting

13 ‘‘and’’ after the semicolon at the end; and

14 (ii) by adding at the end the fol15 lowing:

16 ‘‘(C) provision that in listing a facility on the

17 National Priorities List, the Administrator shall not

18 include any parcel of real property at which no re19 lease has actually occurred, but to which a released

20 hazardous substance, pollutant, or contaminant has

21 migrated in ground water that has moved through

22 subsurface strata from another parcel of real estate

23 at which the release actually occurred, unless—
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1 ‘‘(i) the ground water is in use as a public

2 drinking water supply or was in such use at the

3 time of the release; and

4 ‘‘(ii) the owner or operator of the facility

5 is liable, or is affiliated with any other person

6 that is liable, for any response costs at the fa7 cility, through any direct or indirect familial re8 lationship, or any contractual, corporate, or fi9 nancial relationship other than that created by

10 the instruments by which title to the facility is

11 conveyed or financed.’’; and

12 (B) by adding at the end the following:

13 ‘‘(h) LISTING OF PARTICULAR PARCELS.—

14 ‘‘(1) DEFINITION.—In subsection (a)(8)(C) and

15 paragraph (2) of this subsection, the term ‘parcel of

16 real property’ means a parcel, lot, or tract of land

17 that has a separate legal description from that of

18 any other parcel, lot, or tract of land the legal de19 scription and ownership of which has been recorded

20 in accordance with the law of the State in which it

21 is located.

22 ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in

23 subsection (a)(8)(C) limits the Administrator’s au24 thority under section 104 to obtain access to and

25 undertake response actions at any parcel of real
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1 property to which a released hazardous substance,

2 pollutant, or contaminant has migrated in the

3 ground water.’’.

4 (2) REVISION OF NATIONAL PRIORITIES LIST.—

5 (A) IN GENERAL.—The President shall an6 nually revise the National Priorities List to con7 form with the amendments made by paragraph

8 (1), based on individual delisting recommenda9 tions made by each Regional Administrator of

10 the Environmental Protection Agency.

11 (B) DELISTED PARCELS.—In complying

12 with this paragraph, the President shall delist

13 not more than 20 individual parcels of real

14 property from the National Priorities List in

15 any 1 calendar year.

16 (c) CONFORMING AMENDMENT.—Section 107(a) of

17 the Comprehensive Environmental Response, Compensa18 tion, and Liability Act of 1980 (42 U.S.C. 9607) is

19 amended by striking ‘‘of this section’’ and inserting ‘‘and

20 the exemptions and limitations stated in this section’’.

21 SEC. 103. PROSPECTIVE PURCHASERS AND WINDFALL

22 LIENS.

23 (a) DEFINITION OF BONA FIDE PROSPECTIVE PUR24 CHASER.—Section 101 of the Comprehensive Environ25 mental Response, Compensation, and Liability Act of
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1 1980 (42 U.S.C. 9601) is amended by adding at the end

2 the following:

3 ‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—

4 The term ‘bona fide prospective purchaser’ means a

5 person that acquires ownership of a facility after the

6 date of enactment of this paragraph, or a tenant of

7 such a person, that establishes each of the following

8 by a preponderance of the evidence:

9 ‘‘(A) DISPOSAL PRIOR TO ACQUISITION.—

10 All deposition of hazardous substances at the

11 facility occurred before the person acquired the

12 facility.

13 ‘‘(B) INQUIRIES.—

14 ‘‘(i) IN GENERAL.—The person made

15 all appropriate inquiries into the previous

16 ownership and uses of the facility and the

17 facility’s real property in accordance with

18 generally accepted good commercial and

19 customary standards and practices.

20 ‘‘(ii) STANDARDS AND PRACTICES.—

21 The standards and practices referred to in

22 paragraph (35)(B)(ii) or those issued or

23 adopted by the Administrator under that

24 paragraph shall be considered to satisfy

25 the requirements of this subparagraph.
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1 ‘‘(iii) RESIDENTIAL USE.—In the case

2 of property for residential or other similar

3 use purchased by a nongovernmental or

4 noncommercial entity, a facility inspection

5 and title search that reveal no basis for

6 further investigation shall be considered to

7 satisfy the requirements of this subpara8 graph.

9 ‘‘(C) NOTICES.—The person provided all

10 legally required notices with respect to the dis11 covery or release of any hazardous substances

12 at the facility.

13 ‘‘(D) CARE.—The person exercised appro14 priate care with respect to each hazardous sub15 stance found at the facility by taking reasonable

16 steps to stop any continuing release, prevent

17 any threatened future release and prevent or

18 limit human or natural resource exposure to

19 any previously released hazardous substance.

20 ‘‘(E) COOPERATION, ASSISTANCE, AND AC21 CESS.—The person provides full cooperation,

22 assistance, and access to persons that are re23 sponsible for response actions at the vessel or

24 facility, including the cooperation and access

25 necessary for the installation, integrity, oper-
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1 ation, and maintenance of any complete or par2 tial response actions at the vessel or facility.

3 ‘‘(F) INSTITUTIONAL CONTROL.—The per4 son does not impede the effectiveness or integ5 rity of any institutional control employed at the

6 vessel or facility.

7 ‘‘(G) REQUESTS; SUBPOENAS.—The person

8 complies with any request for information or

9 administrative subpoena issued by the President

10 under this Act.

11 ‘‘(H) NO AFFILIATION.—The person is not

12 affiliated through any familial or corporate rela13 tionship with any person that is or was a party

14 potentially responsible for response costs at the

15 facility.’’.

16 (b) AMENDMENT.—Section 107 of the Comprehen17 sive Environmental Response, Compensation, and Liabil18 ity Act of 1980 (42 U.S.C. 9607) (as amended by section

19 102) is amended by adding at the end the following:

20 ‘‘(p) PROSPECTIVE PURCHASER AND WINDFALL

21 LIEN.—

22 ‘‘(1) LIMITATION ON LIABILITY.—Notwith23 standing subsection (a), a bona fide prospective pur24 chaser whose potential liability for a release or

25 threatened release is based solely on the purchaser’s
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1 being considered to be an owner or operator of a fa2 cility shall not be liable as long as the bona fide pro3 spective purchaser does not impede the performance

4 of a response action or natural resource restoration.

5 ‘‘(2) LIEN.—If there are unrecovered response

6 costs at a facility for which an owner of the facility

7 is not liable by reason of subsection (n)(1) and each

8 of the conditions described in paragraph (3) is met,

9 the United States shall have a lien on the facility,

10 or may obtain from an appropriate responsible party

11 a lien on any other property or other assurances of

12 payment satisfactory to the Administrator, for such

13 unrecovered costs.

14 ‘‘(3) CONDITIONS.—The conditions referred to

15 in paragraph (2) are the following:

16 ‘‘(A) RESPONSE ACTION.—A response ac17 tion for which there are unrecovered costs is

18 carried out at the facility.

19 ‘‘(B) FAIR MARKET VALUE.—The response

20 action increases the fair market value of the fa21 cility above the fair market value of the facility

22 that existed 180 days before the response action

23 was initiated.

24 ‘‘(C) SALE.—A sale or other disposition of

25 all or a portion of the facility has occurred.
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1 ‘‘(4) AMOUNT.—A lien under paragraph (2)—

2 ‘‘(A) shall not exceed the increase in fair

3 market value of the property attributable to the

4 response action at the time of a subsequent sale

5 or other disposition of the property;

6 ‘‘(B) shall arise at the time at which costs

7 are first incurred by the United States with re8 spect to a response action at the facility;

9 ‘‘(C) shall be subject to the requirements

10 of subsection (l)(3); and

11 ‘‘(D) shall continue until the earlier of sat12 isfaction of the lien or recovery of all response

13 costs incurred at the facility.’’.

14 SEC. 104. SAFE HARBOR INNOCENT LANDHOLDERS.

15 (a) AMENDMENT.—Section 101(35) of the Com16 prehensive Environmental Response, Compensation, and

17 Liability Act of 1980 (42 U.S.C. 9601(35)) is amended—

18 (1) in subparagraph (A)—

19 (A) in the matter that precedes clause (i),

20 by striking ‘‘deeds or’’ and inserting ‘‘deeds,

21 easements, leases, or’’; and

22 (B) in the matter that follows clause (iii)—

23 (i) by striking ‘‘he’’ and inserting ‘‘the

24 defendant’’; and
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1 (ii) by striking the period at the end

2 and inserting ‘‘, has provided full coopera3 tion, assistance, and facility access to the

4 persons that are responsible for response

5 actions at the facility, including the co6 operation and access necessary for the in7 stallation, integrity, operation, and mainte8 nance of any complete or partial response

9 action at the facility, and has taken no ac10 tion that impeded the effectiveness or in11 tegrity of any institutional control em12 ployed under section 121 at the facility.’’;

13 and

14 (2) by striking subparagraph (B) and inserting

15 the following:

16 ‘‘(B) REASON TO KNOW.—

17 ‘‘(i) ALL APPROPRIATE INQUIRIES.—

18 To establish that the defendant had no

19 reason to know of the matter described in

20 subparagraph (A)(i), the defendant must

21 show that—

22 ‘‘(I) at or prior to the date on

23 which the defendant acquired the fa24 cility, the defendant undertook all ap25 propriate inquiries into the previous
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1 ownership and uses of the facility in

2 accordance with generally accepted

3 good commercial and customary

4 standards and practices; and

5 ‘‘(II) the defendant took reason6 able steps to stop any continuing re7 lease, prevent any threatened future

8 release, and prevent or limit human or

9 natural resource exposure to any pre10 viously released hazardous substance.

11 ‘‘(ii) STANDARDS AND PRACTICES.—

12 The Administrator shall by regulation es13 tablish as standards and practices for the

14 purpose of clause (i)—

15 ‘‘(I) the American Society for

16 Testing and Materials (ASTM) Stand17 ard E1527–94, entitled ‘Standard

18 Practice for Environmental Site As19 sessments: Phase I Environmental

20 Site Assessment Process’; or

21 ‘‘(II) alternative standards and

22 practices under clause (iii).

23 ‘‘(iii) ALTERNATIVE STANDARDS AND

24 PRACTICES.—
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1 ‘‘(I) IN GENERAL.—The Admin2 istrator may by regulation issue alter3 native standards and practices or des4 ignate standards developed by other

5 organizations than the American Soci6 ety for Testing and Materials after

7 conducting a study of commercial and

8 industrial practices concerning the

9 transfer of real property in the United

10 States.

11 ‘‘(II) CONSIDERATIONS.—In

12 issuing or designating alternative

13 standards and practices under sub14 clause (I), the Administrator shall

15 consider including each of the fol16 lowing:

17 ‘‘(aa) The results of an in18 quiry by an environmental pro19 fessional.

20 ‘‘(bb) Interviews with past

21 and present owners, operators,

22 and occupants of the facility and

23 the facility’s real property for the

24 purpose of gathering information

25 regarding the potential for con-
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1 tamination at the facility and the

2 facility’s real property.

3 ‘‘(cc) Reviews of historical

4 sources, such as chain of title

5 documents, aerial photographs,

6 building department records, and

7 land use records to determine

8 previous uses and occupancies of

9 the real property since the prop10 erty was first developed.

11 ‘‘(dd) Searches for recorded

12 environmental cleanup liens, filed

13 under Federal, State, or local

14 law, against the facility or the fa15 cility’s real property.

16 ‘‘(ee) Reviews of Federal,

17 State, and local government

18 records (such as waste disposal

19 records), underground storage

20 tank records, and hazardous

21 waste handling, generation, treat22 ment, disposal, and spill records,

23 concerning contamination at or

24 near the facility or the facility’s

25 real property.
29

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1 ‘‘(ff) Visual inspections of

2 the facility and facility’s real

3 property and of adjoining prop4 erties.

5 ‘‘(gg) Specialized knowledge

6 or experience on the part of the

7 defendant.

8 ‘‘(hh) The relationship of

9 the purchase price to the value of

10 the property if the property was

11 uncontaminated.

12 ‘‘(ii) Commonly known or

13 reasonably ascertainable informa14 tion about the property.

15 ‘‘(jj) The degree of obvious16 ness of the presence or likely

17 presence of contamination at the

18 property, and the ability to detect

19 such contamination by appro20 priate investigation.

21 ‘‘(iv) SITE INSPECTION AND TITLE

22 SEARCH.—In the case of property for resi23 dential use or other similar use purchased

24 by a nongovernmental or noncommercial

25 entity, a facility inspection and title search
30

•S 1537 IS

1 that reveal no basis for further investiga2 tion shall be considered to satisfy the re3 quirements of this subparagraph.’’.

4 (b) STANDARDS AND PRACTICES.—

5 (1) ESTABLISHMENT BY REGULATION.—The

6 Administrator of the Environmental Protection

7 Agency shall issue the regulation required by section

8 101(35)(B)(ii) of the Comprehensive Environmental

9 Response, Compensation, and Liability Act of 1980

10 (as added by subsection (a)) not later than 1 year

11 after the date of enactment of this Act.

12 (2) INTERIM STANDARDS AND PRACTICES.—

13 Until the Administrator issues the regulation de14 scribed in paragraph (1), in making a determination

15 under section 101(35)(B)(i) of the Comprehensive

16 Environmental Response, Compensation, and Liabil17 ity Act of 1980 (as added by subsection (a)), there

18 shall be taken into account—

19 (A) any specialized knowledge or experi20 ence on the part of the defendant;

21 (B) the relationship of the purchase price

22 to the value of the property if the property was

23 uncontaminated;

24 (C) commonly known or reasonably ascer25 tainable information about the property;
31

•S 1537 IS

1 (D) the degree of obviousness of the pres2 ence or likely presence of contamination at the

3 property; and

4 (E) the ability to detect the contamination

5 by appropriate investigation.

6 TITLE II—STATE RESPONSE

7 PROGRAMS

8 SEC. 201. STATE RESPONSE PROGRAMS.

9 (a) DEFINITIONS.—Section 101 of the Comprehen10 sive Environmental Response, Compensation, and Liabil11 ity Act of 1980 (42 U.S.C. 9601) (as amended by section

12 103(a)) is amended by adding at the end the following:

13 ‘‘(40) FACILITY SUBJECT TO STATE CLEAN14 UP.—The term ‘facility subject to State cleanup’

15 means a facility that—

16 ‘‘(A) is not listed or proposed for listing on

17 the National Priorities List; or

18 ‘‘(B) has been proposed for listing on the

19 National Priorities List, but for which the Ad20 ministrator has notified the State in writing

21 that the Administrator has deferred final listing

22 of the facility pending completion of a remedial

23 action under State authority at the facility.

24 ‘‘(41) QUALIFYING STATE RESPONSE PROGRAM.—

25 The term ‘qualifying State response program’ means
32

•S 1537 IS

1 a State program that includes the elements de2 scribed in section 128(b).’’.

3 (b) QUALIFYING STATE RESPONSE PROGRAMS.—

4 Title I of the Comprehensive Environmental Response,

5 Compensation, and Liability Act of 1980 (42 U.S.C. 9601

6 et seq.) (as amended by section 101(a)) is amended by

7 adding at the end the following:

8 ‘‘SEC. 128. QUALIFYING STATE RESPONSE PROGRAMS.

9 ‘‘(a) ASSISTANCE TO STATES.—The Administrator

10 shall provide grants to States to establish and expand

11 qualifying State response programs that include the ele12 ments listed in subsection (b).

13 ‘‘(b) ELEMENTS.—The elements of a qualifying State

14 response program are the following:

15 ‘‘(1) Oversight and enforcement authorities or

16 other mechanisms that are adequate to ensure

17 that—

18 ‘‘(A) response actions will protect human

19 health and the environment and be conducted

20 in accordance with applicable Federal and State

21 law; and

22 ‘‘(B) in the case of a voluntary response

23 action, if the person conducting the voluntary

24 response action fails to complete the necessary

25 response activities, including operation and
33

•S 1537 IS

1 maintenance or long-term monitoring activities,

2 the necessary response activities are completed.

3 ‘‘(2) Adequate opportunities for public partici4 pation, including prior notice and opportunity for

5 comment in appropriate circumstances, in selecting

6 response actions.

7 ‘‘(3) Mechanisms for approval of a response ac8 tion plan, or a requirement for certification or simi9 lar documentation from the State to the person con10 ducting a response action indicating that the re11 sponse is complete.

12 ‘‘(c) ENFORCEMENT IN CASES OF A RELEASE SUB13 JECT TO A STATE PLAN.—

14 ‘‘(1) ENFORCEMENT.—

15 ‘‘(A) IN GENERAL.—Except as provided in

16 subparagraph (B), in the case of a release or

17 threatened release of a hazardous substance at

18 a facility subject to State cleanup, neither the

19 President nor any other person may use any

20 authority under this Act to take an enforcement

21 action against any person regarding any matter

22 that is within the scope of a response action

23 that is being conducted or has been completed

24 under State law.
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1 ‘‘(B) EXCEPTIONS.—The President may

2 bring an enforcement action under this Act

3 with respect to a facility described in subpara4 graph (A) if—

5 ‘‘(i) the enforcement action is author6 ized under section 104;

7 ‘‘(ii) the State requests that the Presi8 dent provide assistance in the performance

9 of a response action and that the enforce10 ment bar in subparagraph (A) be lifted;

11 ‘‘(iii) at a facility at which response

12 activities are ongoing the Administrator—

13 ‘‘(I) makes a written determina14 tion that the State is unwilling or un15 able to take appropriate action, after

16 the Administrator has provided the

17 Governor notice and an opportunity to

18 cure; and

19 ‘‘(II) the Administrator deter20 mines that the release or threat of re21 lease constitutes a public health or en22 vironmental emergency under section

23 104(a)(4);

24 ‘‘(iv) the Administrator determines

25 that contamination has migrated across a
35

•S 1537 IS

1 State line, resulting in the need for further

2 response action to protect human health or

3 the environment; or

4 ‘‘(v) in the case of a facility at which

5 all response actions have been completed,

6 the Administrator—

7 ‘‘(I) makes a written determina8 tion that the State is unwilling or un9 able to take appropriate action, after

10 the Administrator has provided the

11 Governor notice and an opportunity to

12 cure; and

13 ‘‘(II) makes a written determina14 tion that the facility presents a sub15 stantial risk that requires further re16 mediation to protect human health or

17 the environment, as evidenced by—

18 ‘‘(aa) newly discovered infor19 mation regarding contamination

20 at the facility;

21 ‘‘(bb) the discovery that

22 fraud was committed in dem23 onstrating attainment of stand24 ards at the facility; or
36

•S 1537 IS

1 ‘‘(cc) a failure of the remedy

2 or a change in land use giving

3 rise to a clear threat of exposure.

4 ‘‘(C) EPA NOTIFICATION.—

5 ‘‘(i) IN GENERAL.—In the case of a

6 facility at which there is a release or

7 threatened release of a hazardous sub8 stance, pollutant, or contaminant and for

9 which the Administrator intends to under10 take an administrative or enforcement ac11 tion, the Administrator, prior to taking the

12 administrative or enforcement action, shall

13 notify the State of the action the Adminis14 trator intends to take and wait for an ac15 knowledgment from the State under clause

16 (ii).

17 ‘‘(ii) STATE RESPONSE.—Not later

18 than 48 hours after receiving a notice from

19 the Administrator under clause (i), the

20 State shall notify the Administrator if the

21 facility is currently or has been subject to

22 a cleanup conducted under State law.

23 ‘‘(iii) PUBLIC HEALTH OR ENVIRON24 MENTAL EMERGENCY.—If the Adminis25 trator finds that a release or threatened
37

•S 1537 IS

1 release constitutes a public health or envi2 ronmental emergency under section

3 104(a)(4), the Administrator may take ap4 propriate action immediately after giving

5 notification under clause (i) without wait6 ing for State acknowledgment.

7 ‘‘(2) COST OR DAMAGE RECOVERY ACTIONS.—

8 Paragraph (1) shall not apply to an action brought

9 by a State, Indian Tribe, or general purpose unit of

10 local government for the recovery of costs or dam11 ages under this Act.

12 ‘‘(3) SAVINGS PROVISION.—

13 ‘‘(A) EXISTING AGREEMENTS.—A memo14 randum of agreement, memorandum of under15 standing, or similar agreement between the

16 President and a State or Indian tribe defining

17 Federal and State or tribal response action re18 sponsibilities that was in effect as of the date

19 of enactment of this section with respect to a

20 facility to which paragraph (1)(C) does not

21 apply shall remain effective until the agreement

22 expires in accordance with the terms of the

23 agreement.

24 ‘‘(B) NEW AGREEMENTS.—Nothing in this

25 subsection precludes the President from enter-
38

•S 1537 IS

1 ing into an agreement with a State or Indian

2 tribe regarding responsibility at a facility to

3 which paragraph (1)(C) does not apply.

4 ‘‘(4) STATE REIMBURSEMENT AND CERTIFI5 CATION.—

6 ‘‘(A) IN GENERAL.—On making a finding

7 under this section that a State is unwilling or

8 unable to take appropriate action to address a

9 public health or environmental emergency, the

10 President may require that the State reimburse

11 the Hazardous Substance Superfund for re12 sponse costs incurred by the United States.

13 ‘‘(B) CERTIFICATION.—On making a find14 ing under this section that a State is unwilling

15 or unable to take appropriate action to address

16 a public health or environmental emergency at

17 3 separate facilities within any 1-year period,

18 the President may notify the Governor of the

19 State that this section shall not apply in the

20 State until the President certifies that the

21 State’s cleanup program is adequate to ensure

22 that response actions will protect human health

23 and the environment.’’.
39

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1 SEC. 202. NATIONAL PRIORITIES LIST COMPLETION.

2 (a) IN GENERAL.—Section 105 of the Comprehensive

3 Environmental Response, Compensation, and Liability Act

4 of 1980 (42 U.S.C. 9605) is amended by striking sub5 section (b) and inserting the following:

6 ‘‘(b) NATIONAL PRIORITIES LIST COMPLETION.—

7 ‘‘(1) IN GENERAL.—Not later than 2 years

8 after the date of enactment of this paragraph, the

9 President shall complete the evaluation of all facili10 ties classified as awaiting a National Priorities List

11 decision to determine the risk or danger to public

12 health or welfare or the environment posed by each

13 facility as compared with the other facilities.

14 ‘‘(2) REQUIREMENT OF REQUEST BY THE GOV15 ERNOR OF A STATE.—No facility shall be added to

16 the National Priorities List without the President

17 having first received the concurrence of the Governor

18 of the State in which the facility is located.’’.

19 (b) INDEPENDENT CERCLA COST ANALYSIS.—

20 (1) IN GENERAL.—From amounts appropriated

21 under section 111(a) of the Comprehensive Environ22 mental Response, Compensation, and Liability Act

23 of 1980 (42 U.S.C. 9611(a)), the Administrator

24 shall fund a cooperative agreement for an inde25 pendent analysis of the projected 10-year costs for

26 the implementation of the program under that Act.
40

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1 (2) COMPLETION.—The independent analysis

2 under paragraph (1) shall be completed not later

3 than 180 days after the date of enactment of this

4 Act.

5 SEC. 203. FEDERAL EMERGENCY REMOVAL AUTHORITY.

6 Section 104(c)(1) of the Comprehensive Environ7 mental Response, Compensation, and Liability Act of

8 1980 (42 U.S.C. 9604(c)(1)) is amended—

9 (1) in subparagraph (C), by striking ‘‘consistent

10 with the remedial action to be taken’’ and inserting

11 ‘‘not inconsistent with any remedial action that has

12 been selected or is anticipated at the time of any re13 moval action at a facility,’’;

14 (2) by striking ‘‘$2,000,000’’ and inserting

15 ‘‘$5,000,000’’; and

16 (3) by striking ‘‘12 months’’ and inserting ‘‘3

17 years’’.

18 SEC. 204. STATE COST SHARE.

19 Section 104(c) of the Comprehensive Environmental

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

21 U.S.C. 9604(c)) is amended—

22 (1) by striking ‘‘(c)(1) Unless’’ and inserting

23 the following:

24 ‘‘(c) MISCELLANEOUS LIMITATIONS AND REQUIRE25 MENTS.—
41

•S 1537 IS

1 ‘‘(1) CONTINUANCE OF OBLIGATIONS FROM

2 FUND.—Unless’’;

3 (2) in paragraph (1), by striking ‘‘taken obliga4 tions’’ and inserting ‘‘taken, obligations’’;

5 (3) by striking ‘‘(2) The President’’ and insert6 ing the following:

7 ‘‘(2) CONSULTATION.—The President’’; and

8 (4) by striking paragraph (3) and inserting the

9 following:

10 ‘‘(3) STATE COST SHARE.—

11 ‘‘(A) IN GENERAL.—The Administrator

12 shall not provide any funding for remedial ac13 tion under this section unless the State in

14 which the release occurs first enters into a con15 tract or cooperative agreement with the Admin16 istrator that provides assurances that the State

17 will pay, in cash or through in-kind contribu18 tions, 10 percent of the costs of—

19 ‘‘(i) the remedial action; and

20 ‘‘(ii) operation and maintenance costs.

21 ‘‘(B) STATE-OPERATED FACILITIES.—Not22 withstanding subparagraph (A), the Adminis23 trator may require a State contribution, in cash

24 or in-kind, of 50 percent of the costs of any

25 sums expended in response to a release at a fa-
42

•S 1537 IS

1 cility that was operated by the State or a polit2 ical subdivision of the State, either directly or

3 through a contractual relationship or otherwise,

4 at the time of any disposal of hazardous sub5 stances therein.

6 ‘‘(C) ACTIVITIES WITH RESPECT TO WHICH

7 STATE COST SHARE IS REQUIRED.—No State

8 cost share shall be required except for remedial

9 actions under this section.

10 ‘‘(D) INDIAN TRIBES.—The requirements

11 of this paragraph shall not apply in the case of

12 remedial action to be taken on land or water—

13 ‘‘(i) held by an Indian Tribe;

14 ‘‘(ii) held by the United States in

15 trust for an Indian Tribe;

16 ‘‘(iii) held by a member of an Indian

17 Tribe (if the land or water is subject to a

18 trust restriction on alienation); or

19 ‘‘(iv) within the borders of an Indian

20 reservation.’’.
43

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1 TITLE III—FAIR SHARE LIABIL2 ITY ALLOCATIONS AND PRO3 TECTIONS

4 SEC. 301. LIABILITY EXEMPTIONS AND LIMITATIONS.

5 (a) DEFINITIONS.—Section 101 of the Comprehen6 sive Environmental Response, Liability, and Compensa7 tion Act of 1980 (42 U.S.C. 9601) (as amended by section

8 201(a)) is amended by adding at the end the following:

9 ‘‘(42) CODISPOSAL LANDFILL.—The term ‘co10 disposal landfill’ means a landfill that—

11 ‘‘(A) was listed on the National Priorities

12 List as of the date of enactment of this para13 graph;

14 ‘‘(B) received for disposal municipal solid

15 waste or sewage sludge; and

16 ‘‘(C) may also have received, before the ef17 fective date of requirements under subtitle C of

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

19 et seq.), any hazardous waste, if the landfill

20 contains predominantly municipal solid waste or

21 sewage sludge that was transported to the land22 fill from outside the facility.

23 ‘‘(43) MUNICIPAL SOLID WASTE.—
44

•S 1537 IS

1 ‘‘(A) IN GENERAL.—The term ‘municipal

2 solid waste’ means waste material generated

3 by—

4 ‘‘(i) a household (such as a single- or

5 multi-family residence) or a public lodging

6 (such as a hotel or motel); or

7 ‘‘(ii) a commercial, institutional, or in8 dustrial source, to the extent that—

9 ‘‘(I) the waste material is sub10 stantially similar to waste normally

11 generated by a household or public

12 lodging (without regard to differences

13 in volume); or

14 ‘‘(II) the waste material is col15 lected and disposed of with other mu16 nicipal solid waste or municipal sew17 age sludge as part of normal munic18 ipal solid waste collection services,

19 and, with respect to each source from

20 which the waste material is collected,

21 qualifies for a de micromis exemption

22 under section 107(r).

23 ‘‘(B) INCLUSIONS.—The term ‘municipal

24 solid waste’ includes food and yard waste,

25 paper, clothing, appliances, consumer product
45

•S 1537 IS

1 packaging, disposable diapers, office supplies,

2 cosmetics, glass and metal food containers, ele3 mentary or secondary school science laboratory

4 waste, and household hazardous waste.

5 ‘‘(C) EXCLUSIONS.—The term ‘municipal

6 solid waste’ does not include combustion ash

7 generated by resource recovery facilities or mu8 nicipal incinerators or waste from manufac9 turing or processing (including pollution con10 trol) operations.

11 ‘‘(44) MUNICIPALITY.—

12 ‘‘(A) IN GENERAL.—The term ‘munici13 pality’ means a political subdivision of a State

14 (including a city, county, village, town, town15 ship, borough, parish, school district, sanitation

16 district, water district, or other public entity

17 performing local governmental functions).

18 ‘‘(B) INCLUSIONS.—The term ‘munici19 pality’ includes a natural person acting in the

20 capacity of an official, employee, or agent of

21 any entity described in subparagraph (A) in the

22 performance of a governmental function.

23 ‘‘(45) SEWAGE SLUDGE.—The term ‘sewage

24 sludge’ means solid, semisolid, or liquid residue re25 moved during the treatment of municipal waste
46

•S 1537 IS

1 water, domestic sewage, or other waste water at or

2 by publicly owned treatment works.’’.

3 (b) EXEMPTIONS AND LIMITATIONS.—

4 (1) IN GENERAL.—Section 107 of the Com5 prehensive Environmental Response, Compensation,

6 and Liability Act of 1980 (42 U.S.C. 9607) (as

7 amended by section 103(b)) is amended by adding at

8 the end the following:

9 ‘‘(q) LIABILITY EXEMPTION FOR MUNICIPAL SOLID

10 WASTE AND SEWAGE SLUDGE.—No person shall be liable

11 to the United States or to any other person (including li12 ability for contribution) under this section for any re13 sponse costs at a facility listed on the National Priorities

14 List to the extent that—

15 ‘‘(1) the person is liable solely under paragraph

16 (3) or (4) of subsection (a);

17 ‘‘(2) the person is liable based on an arrange18 ment for disposal or treatment of, an arrangement

19 with a transporter for transport for disposal or

20 treatment of, or an acceptance for transport for dis21 posal or treatment at a facility of, municipal solid

22 waste;

23 ‘‘(3) the person provides full cooperation, assist24 ance, and access to persons that are responsible for

25 response actions at the vessel or facility, including
47

•S 1537 IS

1 the cooperation and access necessary for the installa2 tion, integrity, operation, and maintenance of any

3 complete or partial response actions at the vessel or

4 facility;

5 ‘‘(4) the person does not impede the effective6 ness or integrity of any institutional control em7 ployed at the vessel or facility;

8 ‘‘(5) the person complies with any request for

9 information or administrative subpoena issued by

10 the President under this Act; and

11 ‘‘(6) the person is—

12 ‘‘(A) an owner, operator, or lessee of resi13 dential property from which all of the person’s

14 municipal solid waste was generated;

15 ‘‘(B) a business entity that, during the tax

16 year preceding the date of transmittal of writ17 ten notification that the business is potentially

18 liable, employs not more than 100 individuals;

19 or

20 ‘‘(C) a nonprofit organization described in

21 section 501(c)(3) of the Internal Revenue Code

22 of 1986 that employs not more than 100 indi23 viduals, from which all of the person’s munic24 ipal solid waste was generated.

25 ‘‘(r) DE MICROMIS CONTRIBUTOR EXEMPTION.—
48

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1 ‘‘(1) IN GENERAL.—In the case of a vessel or

2 facility listed on the National Priorities List, no per3 son described in paragraph (3) or (4) of subsection

4 (a) shall be liable to the United States or to any

5 other person (including liability for contribution) for

6 any response costs under this section if the activity

7 specifically attributable to the person resulted in the

8 disposal or treatment of not more than 200 pounds

9 or 110 gallons of material containing a hazardous

10 substance at the vessel or facility before the date of

11 enactment of this subsection, or such greater

12 amount as the Administrator may determine by reg13 ulation.

14 ‘‘(2) EXCEPTION.—Paragraph (1) shall not

15 apply in a case in which the Administrator deter16 mines that material described in paragraph (1) has

17 contributed or may contribute significantly, individ18 ually, to the amount of response costs at the facility.

19 ‘‘(s) SMALL BUSINESS EXEMPTION.—

20 ‘‘(1) IN GENERAL.—No person shall be liable to

21 the United States or to any person (including liabil22 ity for contribution) under this section for any re23 sponse costs at a facility listed on the National Pri24 orities List if—
49

•S 1537 IS

1 ‘‘(A) the person is liable solely under para2 graph (3) or (4) or subsection (a);

3 ‘‘(B) the person is a business that—

4 ‘‘(i) during the taxable year preceding

5 the date of transmittal of notification that

6 the business is a potentially responsible

7 party, had full- and part-time employees

8 whose combined time was equivalent to 75

9 or fewer full-time employees; or

10 ‘‘(ii) for that taxable year reported

11 $3,000,000 or less in gross revenue;

12 ‘‘(C) the activity specifically attributable to

13 the person resulted in the disposal or treatment

14 of material containing a hazardous substance at

15 the vessel or facility before the date of enact16 ment of this subsection;

17 ‘‘(D) the person is not affiliated through

18 any familial or corporate relationship with any

19 person that is or was a party potentially re20 sponsible for response costs at the facility;

21 ‘‘(E) the person provides full cooperation,

22 assistance, and access to persons that are re23 sponsible for response actions at the vessel or

24 facility, including the cooperation and access

25 necessary for the installation, integrity, oper-
50

•S 1537 IS

1 ation, and maintenance of any complete or par2 tial response actions at the vessel or facility;

3 ‘‘(F) the person does not impede the effec4 tiveness or integrity of any institutional control

5 employed at the vessel or facility; and

6 ‘‘(G) the person complies with any request

7 for information or administrative subpoena

8 issued by the President under this Act.

9 ‘‘(2) EXCEPTION.—Paragraph (1) shall not

10 apply in a case in which the material containing a

11 hazardous substance referred to in subparagraph

12 (A) contributed significantly or could contribute sig13 nificantly to the cost of the response action with re14 spect to the facility.

15 ‘‘(t) MUNICIPAL SOLID WASTE AND SEWAGE

16 SLUDGE EXEMPTION AND LIMITATIONS.—

17 ‘‘(1) CONTRIBUTION OF MUNICIPAL SOLID

18 WASTE AND MUNICIPAL SEWAGE SLUDGE.—

19 ‘‘(A) IN GENERAL.—The condition stated

20 in this subparagraph is that the liability of the

21 potentially responsible party is for response

22 costs based on paragraph (3) or (4) of sub23 section (a) and on the potentially responsible

24 party’s having arranged for disposal or treat25 ment of, arranged with a transporter for trans-
51

•S 1537 IS

1 port for disposal or treatment of, or accepted

2 for transport for disposal or treatment of, mu3 nicipal solid waste or municipal sewage sludge

4 at a facility listed on the National Priorities

5 List.

6 ‘‘(B) SETTLEMENT AMOUNT.—

7 ‘‘(i) IN GENERAL.—The President

8 shall offer a settlement to a party referred

9 to in clause (i) with respect to liability

10 under paragraph (3) or (4) of subsection

11 (a) on the basis of a payment of $5.30 per

12 ton of municipal solid waste or municipal

13 sewage sludge that the President estimates

14 is attributable to the party.

15 ‘‘(ii) REVISION.—

16 ‘‘(I) IN GENERAL.—The Presi17 dent may revise the settlement

18 amount under clause (i) by regulation.

19 ‘‘(II) BASIS.—A revised settle20 ment amount under subclause (I)

21 shall reflect the estimated per-ton cost

22 of closure and post-closure activities

23 at a representative facility containing

24 only municipal solid waste.
52

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1 ‘‘(C) CONDITIONS.—The provisions for set2 tlement described in this subparagraph shall

3 not apply with respect to a facility where there

4 is no waste except municipal solid waste or mu5 nicipal sewage sludge.

6 ‘‘(D) ADJUSTMENT FOR INFLATION.—The

7 Administrator may by guidance periodically ad8 just the settlement amount under subparagraph

9 (B) to reflect changes in the Consumer Price

10 Index (or other appropriate index, as deter11 mined by the Administrator).

12 ‘‘(2) MUNICIPAL OWNERS AND OPERATORS.—

13 ‘‘(A) AGGREGATE LIABILITY OF LARGE

14 MUNICIPALITIES.—

15 ‘‘(i) IN GENERAL.—With respect to a

16 codisposal landfill that is owned or oper17 ated in whole or in part by municipalities

18 with a population of 100,000 or more (ac19 cording to the 1990 census), and that is

20 not subject to the criteria for solid waste

21 landfills published under subtitle D of the

22 Solid Waste Disposal Act (42 U.S.C. 6941

23 et seq.) at part 258 of title 40, Code of

24 Federal Regulations (or a successor regula25 tion), the aggregate amount of liability of
53

•S 1537 IS

1 such municipal owners and operators for

2 response costs under this section shall be

3 not greater than 20 percent of such costs.

4 ‘‘(ii) INCREASED AMOUNT.—The

5 President may increase the percentage

6 under clause (i) to not more than 35 per7 cent with respect to a municipality if the

8 President determines that the municipality

9 committed specific acts that exacerbated

10 environmental contamination or exposure

11 with respect to the facility.

12 ‘‘(iii) DECREASED AMOUNT.—The

13 President may decrease the percentage

14 under clause (i) with respect to a munici15 pality to not less than 10 percent if the

16 President determines that the municipality

17 took specific acts of mitigation during the

18 operation of the facility to avoid environ19 mental contamination or exposure with re20 spect to the facility.

21 ‘‘(B) AGGREGATE LIABILITY OF SMALL

22 MUNICIPALITIES.—

23 ‘‘(i) IN GENERAL.—With respect to a

24 codisposal landfill that is owned or oper25 ated in whole or in part by municipalities
54

•S 1537 IS

1 with a population of less than 100,000 (ac2 cording to the 1990 census), that is not

3 subject to the criteria for solid waste land4 fills published under subtitle D of the Solid

5 Waste Disposal Act (42 U.S.C. 6941 et

6 seq.) at part 258 of title 40, Code of Fed7 eral Regulations (or a successor regula8 tion), the aggregate amount of liability of

9 such municipal owners and operators for

10 response costs under this section shall be

11 not greater than 10 percent of such costs.

12 ‘‘(ii) INCREASED AMOUNT.—The

13 President may increase the percentage

14 under clause (i) to not more than 20 per15 cent with respect to a municipality if the

16 President determines that the municipality

17 committed specific acts that exacerbated

18 environmental contamination or exposure

19 with respect to the facility.

20 ‘‘(iii) DECREASED AMOUNT.—The

21 President may decrease the percentage

22 under clause (i) with respect to a munici23 pality to not less than 5 percent if the

24 President determines that the municipality

25 took specific acts of mitigation during the
55

•S 1537 IS

1 operation of the facility to avoid environ2 mental contamination or exposure with re3 spect to the facility.

4 ‘‘(3) APPLICABILITY.—This subsection shall not

5 apply to—

6 ‘‘(A) a person that acted in violation of

7 subtitle C of the Solid Waste Disposal Act (42

8 U.S.C. 6921 et seq.) at a facility that is subject

9 to a response action under this title, if the vio10 lation pertains to a hazardous substance the re11 lease of threat of release of which caused the

12 incurrence of response costs at the facility;

13 ‘‘(B) a person that owned or operated a

14 codisposal landfill in violation of the applicable

15 requirements for municipal solid waste landfill

16 units under subtitle D of the Solid Waste Dis17 posal Act (42 U.S.C. 6941 et seq.) after Octo18 ber 9, 1991, if the violation pertains to a haz19 ardous substance the release of threat of release

20 of which caused the incurrence of response

21 costs at the facility; or

22 ‘‘(C) a person under section 122(p)(2)(G).

23 ‘‘(4) PERFORMANCE OF RESPONSE ACTIONS.—

24 As a condition of a settlement with a municipality

25 under this subsection, the President may require
56

•S 1537 IS

1 that the municipality perform or participate in the

2 performance of the response actions at the facility.

3 ‘‘(5) NOTICE OF APPLICABILITY.—The Presi4 dent shall provide a potentially responsible party

5 with notice of the potential applicability of this sec6 tion in each written communication with the party

7 concerning the potential liability of the party.

8 ‘‘(u) RECYCLING TRANSACTIONS.—

9 ‘‘(1) LIABILITY CLARIFICATION.—As provided

10 in paragraphs (2), (3), (4), and (5) of this sub11 section, a person who arranged for the recycling of

12 recyclable material or transported such material

13 shall not be liable under paragraphs (3) or (4) of

14 subsection (a) with respect to such material. A de15 termination whether or not any person shall be liable

16 under paragraph (3) or (4) of subsection (a) for any

17 transaction not covered by paragraphs (2) and (3),

18 (4), or (5) of this subsection shall be made, without

19 regard to paragraphs (2), (3), (4) and (5) of this

20 subsection, on a case-by-case basis, based on the in21 dividual facts and circumstances of such transaction.

22 ‘‘(2) RECYCLABLE MATERIAL DEFINED.—For

23 purposes of this subsection, the term ‘recyclable ma24 terial’ means scrap paper, scrap plastic, scrap glass,

25 scrap textiles, scrap rubber (other than whole tires),
57

•S 1537 IS

1 scrap metal, or spent lead-acid, spent nickel-cad2 mium, and other spent batteries, as well as minor

3 amounts of material incident to or adhering to the

4 scrap material as a result of its normal and cus5 tomary use prior to becoming scrap; except that

6 such term shall not include—

7 ‘‘(A) shipping containers with a capacity

8 from 30 liters to 3,000 liters, whether intact or

9 not, having any hazardous substance (but not

10 metal bits and pieces or hazardous substance

11 that form an integral part of the container)

12 contained in or adhering thereto; or

13 ‘‘(B) any item of material containing poly14 chlorinated biphenyls (PCBs) in excess of 50

15 parts per million (ppm) or any new standard

16 promulgated pursuant to applicable Federal

17 laws.

18 ‘‘(3) TRANSACTIONS INVOLVING SCRAP PAPER,

19 PLASTIC, GLASS, TEXTILES, OR RUBBER.—Trans20 actions involving scrap paper, scrap plastic, scrap

21 glass, scrap textiles, or scrap rubber (other than

22 whole tires) shall be deemed to be arranging for re23 cycling if the person who arranged for the trans24 action (by selling recyclable material or otherwise ar25 ranging for the recycling of recyclable material) can
58

•S 1537 IS

1 demonstrate by a preponderance of the evidence that

2 all of the following criteria were met at the time of

3 the transaction:

4 ‘‘(A) The recyclable material met a com5 mercial specification grade.

6 ‘‘(B) A market existed for the recyclable

7 material.

8 ‘‘(C) A substantial portion of the recyclable

9 material was made available for use as feed10 stock for the manufacture of a new saleable

11 product.

12 ‘‘(D) The recyclable material could have

13 been a replacement or substitute for a virgin

14 raw material, or the product to be made from

15 the recyclable material could have been a re16 placement or substitute for a product made, in

17 whole or in part, from a virgin raw material.

18 ‘‘(E) For transactions occurring 90 days

19 or more after the date of enactment of this sub20 section, the person exercised reasonable care to

21 determine that the facility where the recyclable

22 material was handled, processed, reclaimed, or

23 otherwise managed by another person (herein24 after in this subsection referred to as a ‘con25 suming facility’) was in compliance with sub-
59

•S 1537 IS

1 stantive (not procedural or administrative) pro2 visions of any Federal, State, or local environ3 mental law or regulation, or compliance order

4 or decree issued pursuant thereto, applicable to

5 the handling, processing, reclamation, storage,

6 or other management activities associated with

7 recyclable material.

8 ‘‘(F) For purposes of this paragraph, ‘rea9 sonable care’ shall be determined using criteria

10 that include (but are not limited to)—

11 ‘‘(i) the price paid in the recycling

12 transaction;

13 ‘‘(ii) the ability of the person to detect

14 the nature of the consuming facility’s oper15 ations concerning its handling, processing,

16 reclamation, or other management activi17 ties associated with recyclable material;

18 and

19 ‘‘(iii) the result of inquiries made to

20 the appropriate Federal, State, or local en21 vironmental agency (or agencies) regarding

22 the consuming facility’s past and current

23 compliance with substantive (not proce24 dural or administrative) provisions of any

25 Federal, State, or local environmental law
60

•S 1537 IS

1 or regulation, or compliance order or de2 cree issued pursuant thereto, applicable to

3 the handling, processing, reclamation, stor4 age, or other management activities associ5 ated with the recyclable material. For the

6 purposes of this subparagraph, a require7 ment to obtain a permit applicable to the

8 handling, processing, reclamation, or other

9 management activity associated with the

10 recyclable materials shall be deemed to be

11 a substantive provision.

12 ‘‘(4) TRANSACTIONS INVOLVING SCRAP

13 METAL.—

14 ‘‘(A) Transactions involving scrap metal

15 shall be deemed to be arranging for recycling if

16 the person who arranged for the transaction (by

17 selling recyclable material or otherwise arrang18 ing for the recycling of recyclable material) can

19 demonstrate by a preponderance of the evidence

20 that at the time of the transaction—

21 ‘‘(i) the person met the criteria set

22 forth in paragraph (3) with respect to the

23 scrap metal;

24 ‘‘(ii) the person was in compliance

25 with any applicable regulations or stand-
61

•S 1537 IS

1 ards regarding the storage, transport,

2 management, or other activities associated

3 with the recycling of scrap metal that the

4 Administrator promulgates under the Solid

5 Waste Disposal Act subsequent to the en6 actment of this subsection and with regard

7 to transactions occurring after the effective

8 date of such regulations or standards; and

9 ‘‘(iii) the person did not melt the

10 scrap metal prior to the transaction.

11 ‘‘(B) For purposes of subparagraph

12 (A)(iii), melting of scrap metal does not include

13 the thermal separation of 2 or more materials

14 due to differences in their melting points (re15 ferred to as ‘sweating’).

16 ‘‘(C) For purposes of this paragraph, the

17 term ‘scrap metal’ means—

18 ‘‘(i) bits and pieces of metal parts

19 (e.g., bars, turnings, rods, sheets, wire) or

20 metal pieces that may be combined to21 gether with bolts or soldering (e.g., radi22 ators, scrap automobiles, railroad box

23 cars), which when worn or superfluous can

24 be recycled; and
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•S 1537 IS

1 ‘‘(ii) notwithstanding subparagraph

2 (A)(iii), metal byproducts from copper and

3 copper-based alloys that—

4 ‘‘(I) are not 1 of the primary

5 products of a secondary production

6 process;

7 ‘‘(II) are not solely or separately

8 produced by the production process;

9 ‘‘(III) are not stored in a pile or

10 surface impoundment; and

11 ‘‘(IV) are sold to another recycler

12 that is not speculatively accumulating

13 such metal byproducts;

14 except for scrap metals that the Administrator

15 excludes from this definition by regulation.

16 ‘‘(5) TRANSACTIONS INVOLVING BATTERIES.—

17 Transactions involving spent lead-acid batteries,

18 spent nickel-cadmium batteries, or other spent bat19 teries shall be deemed to be arranging for recycling

20 if the person who arranged for the transaction (by

21 selling recyclable material or otherwise arranging for

22 the recycling of recyclable material) can demonstrate

23 by a preponderance of the evidence that at the time

24 of the transaction—
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•S 1537 IS

1 ‘‘(A) the person met the criteria set forth

2 in paragraph (3) with respect to the spent lead3 acid batteries, spent nickel-cadmium batteries,

4 or other spent batteries, but the person did not

5 recover the valuable components of such bat6 teries; and

7 ‘‘(B)(i) with respect to transactions involv8 ing lead-acid batteries, the person was in com9 pliance with applicable Federal environmental

10 regulations or standards, and any amendments

11 thereto, regarding the storage, transport, man12 agement, or other activities associated with the

13 recycling of spent lead-acid batteries;

14 ‘‘(ii) with respect to transactions involving

15 nickel-cadmium batteries, Federal environ16 mental regulations or standards are in effect re17 garding the storage, transport, management, or

18 other activities associated with the recycling of

19 spent nickel-cadmium batteries, and the person

20 was in compliance with applicable regulations or

21 standards or any amendments thereto; or

22 ‘‘(iii) with respect to transactions involving

23 other spent batteries, Federal environmental

24 regulations or standards are in effect regarding

25 the storage, transport, management, or other
64

•S 1537 IS

1 activities associated with the recycling of such

2 batteries, and the person was in compliance

3 with applicable regulations or standards or any

4 amendments thereto.

5 ‘‘(6) EXCLUSIONS.—

6 ‘‘(A) The exemptions set forth in para7 graphs (3), (4), and (5) shall not apply if—

8 ‘‘(i) the person had an objectively rea9 sonable basis to believe at the time of the

10 recycling transaction—

11 ‘‘(I) that the recyclable material

12 would not be recycled;

13 ‘‘(II) that the recyclable material

14 would be burned as fuel, or for energy

15 recovery or incineration; or

16 ‘‘(III) for transactions occurring

17 before 90 days after the date of the

18 enactment of this subsection, that the

19 consuming facility was not in compli20 ance with a substantive (not proce21 dural or administrative) provision of

22 any Federal, State, or local environ23 mental law or regulation, or compli24 ance order or decree issued pursuant

25 thereto, applicable to the handling,
65

•S 1537 IS

1 processing, reclamation, or other man2 agement activities associated with the

3 recyclable material;

4 ‘‘(ii) the person had reason to believe

5 that hazardous substances had been added

6 to the recyclable material for purposes

7 other than processing for recycling; or

8 ‘‘(iii) the person failed to exercise rea9 sonable care with respect to the manage10 ment and handling of the recyclable mate11 rial (including adhering to customary in12 dustry practices current at the time of the

13 recycling transaction designed to minimize,

14 through source control, contamination of

15 the recyclable material by hazardous sub16 stances).

17 ‘‘(B) For purposes of this paragraph, an

18 objectively reasonable basis for belief shall be

19 determined using criteria that include (but are

20 not limited to) the size of the person’s business,

21 customary industry practices (including cus22 tomary industry practices current at the time of

23 the recycling transaction designed to minimize,

24 through source control, contamination of the re25 cyclable material by hazardous substances), the
66

•S 1537 IS

1 price paid in the recycling transaction, and the

2 ability of the person to detect the nature of the

3 consuming facility’s operations concerning its

4 handling, processing, reclamation, or other

5 management activities associated with the recy6 clable material.

7 ‘‘(C) For purposes of this paragraph, a re8 quirement to obtain a permit applicable to the

9 handling, processing, reclamation, or other

10 management activities associated with recycla11 ble material shall be deemed to be a substantive

12 provision.

13 ‘‘(D) LIMITATION ON STATUTORY CON14 STRUCTION.—Nothing in this subsection—

15 ‘‘(i) affects any rights, defenses, or li16 abilities under section 107(a) of any per17 son with respect to any transaction involv18 ing any material other than a recyclable

19 material subject to paragraph (1) of this

20 subsection; or

21 ‘‘(ii) relieves a plaintiff of the burden

22 of proof that the elements of liability under

23 section 107(a) are met under the par24 ticular circumstances of any transaction

25 for which liability is alleged.
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•S 1537 IS

1 ‘‘(v) RECYCLING TRANSACTIONS INVOLVING USED

2 OIL.—

3 ‘‘(1) DEFINITION OF USED OIL.—In this sub4 section, the term ‘used oil’ has the meaning given

5 the term in section 1004 of the Solid Waste Dis6 posal Act (42 U.S.C. 6903), except that the term—

7 ‘‘(A) includes any synthetic oil; and

8 ‘‘(B) does not include an oil that is subject

9 to regulation under section 6(e)(10)(A) of the

10 Toxic Substances Control Act (15 U.S.C.

11 2605(e)(10)(A)).

12 ‘‘(2) TRANSACTIONS INVOLVING USED OIL.—

13 Transactions involving recyclable material that con14 sists of used oil shall be considered to be arranging

15 for recycling if the person that arranged for the

16 transaction (by selling recyclable material or other17 wise arranging for the recycling of recyclable mate18 rial)—

19 ‘‘(A) did not mix the recyclable material

20 with a hazardous substance following the re21 moval of the used oil from service; and

22 ‘‘(B) demonstrates by a preponderance of

23 the evidence that—

24 ‘‘(i) at the time of the transaction, the

25 recyclable material was sent to a facility
68

•S 1537 IS

1 that recycled used oil by using it as a feed2 stock for the manufacture of a new sale3 able product; or

4 ‘‘(ii)(I) at the time of the transaction,

5 the recyclable material or the product to be

6 made from the recyclable material could

7 have been a replacement or substitute, in

8 whole or in part, for a virgin raw material;

9 ‘‘(II) in the case of a transaction oc10 curring on or after the date that is 90 days

11 after the date of enactment of this section,

12 the person exercised reasonable care to de13 termine that the facility where the recycla14 ble material would be handled, processed,

15 reclaimed, or otherwise managed by an16 other person was in compliance with sub17 stantive provisions of any Federal, State,

18 or local environmental law (including a

19 regulation promulgated or a compliance

20 order or decree issued under the law) that

21 is applicable to the handling, processing,

22 reclamation, storage, or other management

23 activities associated with the recyclable

24 material; and
69

•S 1537 IS

1 ‘‘(III) the person was in compliance

2 with any regulations or standards for the

3 management of used oil promulgated under

4 the Solid Waste Disposal Act (42 U.S.C.

5 6901 et seq.) that were in effect on the

6 date of the transaction.

7 ‘‘(3) REASONABLE CARE.—For purposes of this

8 subsection, reasonable care shall be determined

9 using criteria that include—

10 ‘‘(A) the price paid in the recycling trans11 action;

12 ‘‘(B) the ability of the person to detect the

13 nature of the consuming facility’s operations

14 concerning its handling, processing, reclama15 tion, or other management activities associated

16 with the recyclable material; and

17 ‘‘(C) the result of inquiries made to the ap18 propriate Federal, State, or local environmental

19 agency (or agencies) regarding the consuming

20 facility’s past and current compliance with sub21 stantive provisions of any Federal, State, or

22 local environmental law (including a regulation

23 promulgated or a compliance order or decree

24 issued under the law), applicable to the han25 dling, processing, reclamation, storage, or other
70

•S 1537 IS

1 management activities associated with recycla2 ble material.

3 ‘‘(w) LIMITATION OF LIABILITY OF RAILROAD OWN4 ERS.—

5 ‘‘(1) IN GENERAL.—Notwithstanding subsection

6 (a), a person that substantially complies with para7 graph (2) with respect to a facility shall not be liable

8 under this Act to the extent that liability is based

9 solely on the status of the person as a railroad

10 owner or operator of a spur track (including a spur

11 track over land subject to an easement), to a facility

12 that is owned or operated by a person that is not af13 filiated with the railroad owner or operator, if—

14 ‘‘(A) the spur track provides access to a

15 main line or branch line track that is owned or

16 operated by the railroad;

17 ‘‘(B) the spur track is not more than 10

18 miles long; and

19 ‘‘(C) the railroad owner or operator does

20 not cause or contribute to a release or threat21 ened release at the spur track.

22 ‘‘(2) REQUIREMENTS FOR LIMITATION OF LI23 ABILITY.—The requirement of this paragraph is

24 that—
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•S 1537 IS

1 ‘‘(A) to the extent that the person has

2 operational control over a facility—

3 ‘‘(i) the person provides full coopera4 tion to, assistance to, and access to the fa5 cility by, persons that are responsible for

6 response actions at the facility (including

7 the cooperation and access necessary for

8 the installation, integrity, operation, and

9 maintenance of any complete or partial re10 sponse action at the facility); and

11 ‘‘(ii) the person takes no action to im12 pede the effectiveness or integrity of any

13 institutional control employed under sec14 tion 121 at the facility; and

15 ‘‘(B) the person complies with any request

16 for information or administrative subpoena

17 issued by the President under this Act.

18 ‘‘(x) RELIGIOUS, CHARITABLE, SCIENTIFIC, AND

19 EDUCATIONAL ORGANIZATIONS.—

20 ‘‘(1) LIMITATION ON LIABILITY.—Subject to

21 paragraph (2), if an organization described in sec22 tion 101(20)(I) holds legal or equitable title to a ves23 sel or facility as a result of a charitable gift that is

24 allowable as a deduction under section 170, 2055, or

25 2522 of the Internal Revenue Code of 1986 (deter-
72

•S 1537 IS

1 mined without regard to dollar limitations), the li2 ability of the organization shall be limited to the

3 lesser of the fair market value of the vessel or facil4 ity or the actual proceeds of the sale of the vessel

5 or facility received by the organization.

6 ‘‘(2) CONDITIONS.—In order for an organiza7 tion described in section 101(20)(I) to be eligible for

8 the limited liability described in paragraph (1), the

9 organization shall—

10 ‘‘(A) substantially comply with the require11 ment of subsection (y) with respect to the vessel

12 or facility;

13 ‘‘(B) provide full cooperation and assist14 ance to the United States in identifying and lo15 cating persons who recently owned, operated, or

16 otherwise controlled activities at the vessel or

17 facility;

18 ‘‘(C) establish by a preponderance of the

19 evidence that all active disposal of hazardous

20 substances at the vessel or facility occurred be21 fore the organization acquired the vessel or fa22 cility; and

23 ‘‘(D) establish by a preponderance of the

24 evidence that the organization did not cause or
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•S 1537 IS

1 contribute to a release or threatened release of

2 hazardous substances at the vessel or facility.

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

4 affects the liability of a person other than a person

5 described in section 101(20)(I) that meets the condi6 tions specified in paragraph (2).’’.

7 (2) TRANSITION RULES.—

8 (A) IN GENERAL.—The exemptions under

9 subsections (q), (r), (s), (v), and (w) of section

10 107 of the Comprehensive Environmental Re11 sponse, Compensation, and Liability Act of

12 1980 (42 U.S.C. 9607(q), 9607(r), 9607(s)) (as

13 added by paragraph (1)) shall not apply to any

14 administrative settlement or any settlement or

15 judgment approved by a United States Federal

16 District Court—

17 (i) before the date of enactment of

18 this Act; or

19 (ii) not later than 180 days after the

20 date of enactment of this Act.

21 (B) EFFECT ON PENDING OR CONCLUDED

22 ACTIONS.—The exemptions provided in sub23 section (u) of the Comprehensive Environ24 mental Response, Compensation, and Liability

25 Act of 1980 (42 U.S.C. 9607(u)) (as added by
74

•S 1537 IS

1 paragraph (1)) shall not affect any concluded

2 judicial or administrative action or any pending

3 judicial action initiated by the United States

4 prior to the date of enactment of this Act.

5 (c) SERVICE STATION DEALERS.—Section 114(c) of

6 the Comprehensive Environmental Response, Compensa7 tion, and Liability Act of 1980 (42 U.S.C. 9614(c)) is

8 amended—

9 (1) in paragraph (1)—

10 (A) by striking ‘‘No person’’ and inserting

11 ‘‘A person’’;

12 (B) by striking ‘‘may recover’’ and insert13 ing ‘‘may not recover’’;

14 (C) by striking ‘‘if such recycled oil’’ and

15 inserting ‘‘unless the service station dealer’’;

16 and

17 (D) by striking subparagraphs (A) and (B)

18 and inserting the following:

19 ‘‘(A) mixed the recycled oil with any other

20 hazardous substance; or

21 ‘‘(B) did not store, treat, transport, or oth22 erwise manage the recycled oil in compliance

23 with any applicable regulations or standards

24 promulgated under section 3014 of the Solid

25 Waste Disposal Act (42 U.S.C. 6935) and other
75

•S 1537 IS

1 applicable authorities that were in effect on the

2 date of such activity.’’; and

3 (2) by striking paragraph (4).

4 SEC. 302. EXPEDITED SETTLEMENT FOR CERTAIN PARTIES.

5 (a) PARTIES ELIGIBLE.—Section 122(g) of the Com6 prehensive Environmental Response, Compensation, and

7 Liability Act of 1980 (42 U.S.C. 9622(g)) is amended—

8 (1) by striking the subsection heading and in9 serting the following:

10 ‘‘(g) EXPEDITED FINAL SETTLEMENT.—’’;

11 (2) in paragraph (1)—

12 (A) by redesignating subparagraph (B) as

13 subparagraph (C);

14 (B) by striking ‘‘(1)’’ and all that follows

15 through subparagraph (A) and inserting the fol16 lowing:

17 ‘‘(1) PARTIES ELIGIBLE.—

18 ‘‘(A) IN GENERAL.—As expeditiously as

19 practicable, the President shall—

20 ‘‘(i) notify each potentially responsible

21 party that meets 1 or more of the condi22 tions stated in subparagraphs (B), (C),

23 and (D) of the party’s eligibility for a set24 tlement; and
76

•S 1537 IS

1 ‘‘(ii) offer to reach a final administra2 tive or judicial settlement with the party.

3 ‘‘(B) DE MINIMIS CONTRIBUTION.—The

4 condition stated in this subparagraph is that

5 the liability is for response costs based on para6 graph (3) or (4) of section 107(a) and the par7 ty’s contribution of a hazardous substance at a

8 facility is de minimis. For the purposes of this

9 subparagraph, a potentially responsible party’s

10 contribution shall be considered to be de mini11 mis only if the President determines that both

12 of the following criteria are met:

13 ‘‘(i) MINIMAL AMOUNT OF MATE14 RIAL.—The amount of material containing

15 a hazardous substance contributed by the

16 potentially responsible party to the facility

17 is minimal relative to the total amount of

18 material containing hazardous substances

19 at the facility. The amount of a potentially

20 responsible party’s contribution shall be

21 presumed to be minimal if the amount is

22 1 percent or less of the total amount of

23 material containing a hazardous substance

24 at the facility, unless the Administrator
77

•S 1537 IS

1 promptly identifies a greater threshold

2 based on site-specific factors.

3 ‘‘(ii) HAZARDOUS EFFECTS.—The ma4 terial containing a hazardous substance

5 contributed by the potentially responsible

6 party does not present toxic or other haz7 ardous effects that are significantly greater

8 than the toxic or other hazardous effects of

9 other material containing a hazardous sub10 stance at the facility.’’;

11 (C) in subparagraph (C) (as redesignated

12 by subparagraph (A))—

13 (i) by redesignating clauses (i)

14 through (iii) as subclauses (I) through

15 (III), respectively, and adjusting the mar16 gins appropriately;

17 (ii) by striking ‘‘(C) The potentially

18 responsible party’’ and inserting the fol19 lowing:

20 ‘‘(C) OWNERS OF REAL PROPERTY.—

21 ‘‘(i) IN GENERAL.—The condition

22 stated in this subparagraph is that the po23 tentially responsible party’’; and

24 (iii) by striking ‘‘This subparagraph

25 (B)’’ and inserting the following:
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•S 1537 IS

1 ‘‘(ii) APPLICABILITY.—Clause (i)’’;

2 and

3 (D) by adding at the end the following:

4 ‘‘(D) REDUCTION IN SETTLEMENT

5 AMOUNT BASED ON LIMITED ABILITY TO PAY.—

6 ‘‘(i) IN GENERAL.—The condition

7 stated in this subparagraph is that—

8 ‘‘(I) the potentially responsible

9 party is—

10 ‘‘(aa) a natural person;

11 ‘‘(bb) a small business; or

12 ‘‘(cc) a municipality;

13 ‘‘(II) the potentially responsible

14 party demonstrates an inability to pay

15 or has only a limited ability to pay re16 sponse costs, as determined by the

17 Administrator under a regulation pro18 mulgated by the Administrator,

19 after—

20 ‘‘(aa) public notice and op21 portunity for comment; and

22 ‘‘(bb) consultation with the

23 Administrator of the Small Busi24 ness Administration and the Sec-
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•S 1537 IS

1 retary of Housing and Urban De2 velopment; and

3 ‘‘(III) in the case of a potentially

4 responsible party that is a small busi5 ness, the potentially responsible party

6 does not qualify for the small business

7 exemption under section 107(s) be8 cause of the application of section

9 107(s)(2).

10 ‘‘(ii) SMALL BUSINESSES.—

11 ‘‘(I) DEFINITION OF SMALL

12 BUSINESS.—In this subparagraph, the

13 term ‘small business’ means a busi14 ness entity that—

15 ‘‘(aa) during the taxable

16 year preceding the date of trans17 mittal of notification that the

18 business is a potentially respon19 sible party, had full- and part20 time employees whose combined

21 time was equivalent to that of 75

22 or fewer full-time employees or

23 for that taxable year reported

24 $3,000,000 or less in gross rev25 enue; and
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•S 1537 IS

1 ‘‘(bb) is not affiliated

2 through any familial or corporate

3 relationship with any person that

4 is or was a party potentially re5 sponsible for response costs at

6 the facility.

7 ‘‘(II) CONSIDERATIONS.—At the

8 request of a small business, the Presi9 dent shall take into consideration the

10 ability of the small business to pay re11 sponse costs and still maintain its

12 basic business operations, including—

13 ‘‘(aa) consideration of the

14 overall financial condition of the

15 small business; and

16 ‘‘(bb) demonstrable con17 straints on the ability of the

18 small business to raise revenues.

19 ‘‘(III) INFORMATION.—A small

20 business requesting settlement under

21 this paragraph shall promptly provide

22 the President with all information

23 needed to determine the ability of the

24 small business to pay response costs.
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•S 1537 IS

1 ‘‘(IV) DETERMINATION.—A

2 small business shall demonstrate the

3 extent of its ability to pay response

4 costs, and the President shall perform

5 any analysis that the President deter6 mines may assist in demonstrating the

7 impact of a settlement on the ability

8 of the small business to maintain its

9 basic operations. The President, in

10 the discretion of the President, may

11 perform such an analysis for any

12 other party or request the other party

13 to perform the analysis.

14 ‘‘(V) ALTERNATIVE PAYMENT

15 METHODS.—If the President deter16 mines that a small business is unable

17 to pay its total settlement amount im18 mediately, the President shall consider

19 such alternative payment methods as

20 may be necessary or appropriate.

21 ‘‘(iii) MUNICIPALITIES.—

22 ‘‘(I) CONSIDERATIONS.—The

23 President shall consider the inability

24 or limited ability to pay of a munici25 pality to the extent that the munici-
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•S 1537 IS

1 pality provides information with re2 spect to—

3 ‘‘(aa) the general obligation

4 bond rating and information

5 about the most recent bond issue

6 for which the rating was pre7 pared;

8 ‘‘(bb) the amount of total

9 available funds (other than dedi10 cated funds or State assistance

11 payments for remediation of inac12 tive hazardous waste sites);

13 ‘‘(cc) the amount of total

14 operating revenues (other than

15 obligated or encumbered reve16 nues);

17 ‘‘(dd) the amount of total

18 expenses;

19 ‘‘(ee) the amounts of total

20 debt and debt service;

21 ‘‘(ff) per capita income and

22 cost of living;

23 ‘‘(gg) real property values;

24 ‘‘(hh) unemployment infor25 mation; and
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•S 1537 IS

1 ‘‘(ii) population information.

2 ‘‘(II) EVALUATION OF IMPACT.—

3 A municipality may submit for consid4 eration by the President an evaluation

5 of the potential impact of the settle6 ment on the provision of municipal

7 services and the feasibility of making

8 delayed payments or payments over

9 time.

10 ‘‘(III) RISK OF DEFAULT OR VIO11 LATION.—A municipality may estab12 lish an inability to pay for purposes of

13 this subparagraph by showing that

14 payment of its liability under this Act

15 would—

16 ‘‘(aa) create a substantial

17 demonstrable risk that the mu18 nicipality would default on debt

19 obligations existing as of the time

20 of the showing, go into bank21 ruptcy, be forced to dissolve, or

22 be forced to make budgetary cut23 backs that would substantially re24 duce the level of protection of

25 public health and safety; or
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1 ‘‘(bb) necessitate a violation

2 of legal requirements or limita3 tions of general applicability con4 cerning the assumption and

5 maintenance of fiscal municipal

6 obligations.

7 ‘‘(IV) OTHER FACTORS REL8 EVANT TO SETTLEMENTS WITH MU9 NICIPALITIES.—In determining an ap10 propriate settlement amount with a

11 municipality under this subparagraph,

12 the President may consider other rel13 evant factors, including the fair mar14 ket value of any in-kind services that

15 the municipality may provide to sup16 port the response action at the facil17 ity.

18 ‘‘(iv) OTHER POTENTIALLY RESPON19 SIBLE PARTIES.—This subparagraph does

20 not affect the President’s authority to

21 evaluate the ability to pay of a potentially

22 responsible party other than a natural per23 son, small business, or municipality or to

24 enter into a settlement with such other

25 party based on that party’s ability to pay.
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1 ‘‘(E) ADDITIONAL CONDITIONS FOR EXPE2 DITED SETTLEMENTS.—

3 ‘‘(i) BASIS OF DETERMINATION.—If

4 the President determines that a potentially

5 responsible party is not eligible for settle6 ment under this paragraph, the President

7 shall state the reasons for the determina8 tion in writing to any potentially respon9 sible party that requests a settlement

10 under this paragraph.’’.

11 (b) SETTLEMENT OFFERS.—Section 122(g) of the

12 Comprehensive Environment Response, Compensation,

13 and Liability Act of 1980 (42 U.S.C. 9622(g)) is

14 amended—

15 (1) by redesignating paragraph (6) as para16 graph (7); and

17 (2) by inserting after paragraph (5) the fol18 lowing:

19 ‘‘(6) SETTLEMENT OFFERS.—

20 ‘‘(A) NOTIFICATION.—As soon as prac21 ticable after receipt of sufficient information to

22 make a determination, the Administrator shall

23 notify any person that the Administrator deter24 mines is eligible under paragraph (1) of the
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1 person’s eligibility for the expedited final settle2 ment.

3 ‘‘(B) OFFERS.—As soon as practicable

4 after receipt of sufficient information, the Ad5 ministrator shall submit a written settlement

6 offer to each person that the Administrator de7 termines, based on information available to the

8 Administrator at the time at which the deter9 mination is made, to be eligible for a settlement

10 under paragraph (1).

11 ‘‘(C) INFORMATION.—At the time at which

12 the Administrator submits an offer under para13 graph (1), the Administrator shall, at the re14 quest of the recipient of the offer, make avail15 able to the recipient any information available

16 under section 552 of title 5, United States

17 Code, on which the Administrator bases the set18 tlement offer, and if the settlement offer is

19 based in whole or in part on information not

20 available under that section, so inform the re21 cipient.’’.

22 SEC. 303. FAIR SHARE SETTLEMENTS AND STATUTORY OR23 PHAN SHARES.

24 (a) IN GENERAL.—Section 122 of the Comprehensive

25 Environmental Response, Compensation, and Liability Act
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1 of 1980 (42 U.S.C. 9622) is amended by adding at the

2 end the following:

3 ‘‘(n) FAIR SHARE ALLOCATION.—

4 ‘‘(1) PROCESS.—The President shall initiate an

5 impartial fare share allocation, conducted by a neu6 tral third party, at National Priorities List facilities,

7 if—

8 ‘‘(A) there is more than 1 potentially re9 sponsible party that is not—

10 ‘‘(i) eligible for an exemption or limi11 tation under subsection (q), (r), (s), (t),

12 (u), (v), (w), or (x) of section 107;

13 ‘‘(ii) eligible for a settlement under

14 subsection (g); or

15 ‘‘(iii) insolvent, bankrupt, or defunct;

16 and

17 ‘‘(B) 1 or more of the potentially respon18 sible parties agree to bear the costs of the allo19 cation (which shall be considered to be response

20 costs under this Act) under such conditions as

21 the President may prescribe.

22 ‘‘(2) PRE-ALLOCATION SETTLEMENTS.—

23 ‘‘(A) IN GENERAL.—Before initiating the

24 allocation, the President may—
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1 ‘‘(i) provide a 90-day period of nego2 tiation; and

3 ‘‘(ii) extend the period of negotiation

4 described in clause (i) for an additional 90

5 days.

6 ‘‘(B) ALTERNATIVE DISPUTE RESOLU7 TION.—The President may use the services of

8 an alternative dispute resolution neutral to as9 sist in negotiations.

10 ‘‘(C) SETTLEMENT.—On expiration of a

11 negotiation period described in subparagraph

12 (A), the President may offer to settle the liabil13 ity of 1 or more of the parties.

14 ‘‘(D) RESPONSE ACTION.—

15 ‘‘(i) IN GENERAL.—As a condition of

16 a settlement under this subsection, the

17 President may require 1 or more parties to

18 conduct a response action at the facility.

19 ‘‘(ii) FUNDING AND COSTS.—An

20 agreement for a required response action

21 described in clause (i) may include mixed

22 funding under this section, including the

23 forgiveness of past costs.

24 ‘‘(3) EXPEDITED ALLOCATION.—
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1 ‘‘(A) IN GENERAL.—At the request of any

2 party subject to the allocation, the allocator

3 may first accept the President’s estimate of the

4 statutory orphan share specified under sub5 section (o).

6 ‘‘(B) SETTLEMENT BASED ON STATUTORY

7 ORPHAN SHARE.—The President may offer to

8 settle the liability of any party based on—

9 ‘‘(i) the statutory orphan share as ac10 cepted by the allocator;

11 ‘‘(ii) the party’s pro rata share of the

12 statutory orphan; and

13 ‘‘(iii) other terms and conditions ac14 ceptable to the United States.

15 ‘‘(4) FACTORS.—In conducting an allocation

16 under this subsection, the allocator, without regard

17 to any theory of joint and several liability, shall esti18 mate the fair share of each potentially responsible

19 party using principles of equity, the best information

20 reasonably available to the President, and the fol21 lowing factors:

22 ‘‘(A) the quantity of hazardous substances

23 contributed by each party;

24 ‘‘(B) the degree of toxicity of hazardous

25 substances contributed by each party;
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1 ‘‘(C) the mobility of hazardous substances

2 contributed by each party;

3 ‘‘(D) the degree of involvement of each

4 party in the generation, transportation, treat5 ment, storage, or disposal of hazardous sub6 stances;

7 ‘‘(E) the degree of care exercised by each

8 party with respect to hazardous substances,

9 taking into account the characteristics of the

10 hazardous substances;

11 ‘‘(F) the cooperation of each party in con12 tributing to any response action and in pro13 viding complete and timely information to the

14 United States or the allocator; and

15 ‘‘(G) such other equitable factors as the

16 President considers appropriate.

17 ‘‘(5) SCOPE.—A fair share allocation under this

18 subsection shall include any response costs at a Na19 tional Priorities List facility that are not addressed

20 in an administrative settlement or a settlement or a

21 judgment approved by a United States Federal Dis22 trict Court.

23 ‘‘(6) SETTLEMENTS BASED ON ALLOCATIONS.—

24 ‘‘(A) IN GENERAL.—A party may settle

25 any liability to the United States for response
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1 costs under this Act for its allocated fair share,

2 including a reasonable risk premium that re3 flects uncertainties existing at the time of set4 tlement.

5 ‘‘(B) COMPLETION OF OBLIGATIONS.—A

6 person that is undertaking a response action

7 under an administrative order issued under sec8 tion 106 or has entered into a settlement decree

9 with the United States of a State as of the date

10 of enactment of this subsection shall complete

11 the person’s obligations under the order or set12 tlement decree.

13 ‘‘(C) JOINT REJECTION.—The President

14 and the Attorney General may jointly reject an

15 allocation report, in writing, if—

16 ‘‘(i) the allocation does not provide a

17 basis for settlement that is fair, reason18 able, and consistent with the objectives of

19 this Act; or

20 ‘‘(ii) the allocation process was di21 rectly and substantially affected by bias,

22 procedural error, fraud, or unlawful con23 duct.

24 ‘‘(D) SUBSEQUENT ALLOCATION.—
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1 ‘‘(i) IN GENERAL.—If the Adminis2 trator and the Attorney General jointly re3 ject an allocation report under subpara4 graph (C), the President shall initiate an5 other impartial fair share allocation.

6 ‘‘(ii) COSTS.—The United States shall

7 bear 50 percent of the costs of a subse8 quent allocation if an initial allocation is

9 rejected under subparagraph (C)(i).

10 ‘‘(7) UNFUNDED AND UNATTRIBUTABLE

11 SHARES.—Any share attributable to an insolvent,

12 defunct, or bankrupt party, or a share that cannot

13 be attributed to any particular party, shall be allo14 cated among any responsible parties not described in

15 subsection (q), (r), (s), (t), (u), (v), (w), or (x) of

16 section 107 or subsection (g) of this section.

17 ‘‘(8) SAVINGS.—The President may use the au18 thority under this section to enter into settlement

19 agreements with respect to any response action that

20 is the subject of an allocation at any time.

21 ‘‘(9) EFFECT ON PRINCIPLES OF LIABILITY.—

22 Except as provided in paragraph (4), the authoriza23 tion of an allocation process under this section shall

24 not modify or affect the principles of liability under
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1 this title as determined by the courts of the United

2 States.

3 ‘‘(o) STATUTORY ORPHAN SHARES.—

4 ‘‘(1) IN GENERAL.—For purposes of this sec5 tion, the statutory orphan share is the difference

6 between—

7 ‘‘(A) the liability of a party described in

8 subsection (q), (s), (t), (u), (v), (w), or (x) of

9 section 107 or subsection (g) of this section;

10 and

11 ‘‘(B) the President’s estimate of the liabil12 ity of the party, notwithstanding any exemption

13 from or limitation on liability in this Act, for

14 response costs that are not addressed in an ad15 ministrative settlement or a settlement or judg16 ment approved by a United States district

17 court.

18 ‘‘(2) DETERMINATION OF STATUTORY ORPHAN

19 SHARES.—The President shall include an estimate of

20 the statutory orphan share of a party described in

21 section 107(t) or subsection (g) of this section,

22 based on the best information reasonably available

23 to the President, at any time at which the President

24 seeks judicial approval of a settlement with the

25 party.
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1 ‘‘(3) TRANSITION RULE AND SUBSEQUENT SET2 TLEMENTS.—

3 ‘‘(A) IN GENERAL.—Each settlement pre4 sented for judicial approval on or after the date

5 that is 1 year after the date of enactment of

6 this subsection shall include an estimate of the

7 statutory orphan share for each party described

8 in subsections (q), (s), and (u) of section 107

9 that is otherwise liable at a facility for costs ad10 dressed in the settlement.

11 ‘‘(B) SUBSEQUENT SETTLEMENTS.—The

12 President shall include in a subsequent settle13 ment at the same facility a revised statutory or14 phan share estimate if the President—

15 ‘‘(i) determines that the subsequent

16 settlement includes a new statutory orphan

17 share; or

18 ‘‘(ii) has good cause to revise an ear19 lier statutory orphan share estimate.

20 ‘‘(4) FINAL SETTLEMENTS.—

21 ‘‘(A) IN GENERAL.—An administrative set22 tlement, or a judicially-approved consent decree

23 or settlement, shall identify the statutory or24 phan share owing if the consent decree or set25 tlement includes all funding necessary to com-
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1 plete remedial project construction for the last

2 operable unit at the facility.

3 ‘‘(B) FUNDING AND REIMBURSEMENT.—A

4 consent decree or settlement described in sub5 paragraph (A) shall include funding of statu6 tory orphan shares in accordance with this sec7 tion to the extent funds are available.

8 ‘‘(C) FACILITIES UNDER UNILATERAL

9 ORDER ONLY.—

10 ‘‘(i) IN GENERAL.—At a facility pro11 ceeding under an order under section

12 106(a) that includes all funding necessary

13 to complete remedial project construction

14 for the last operable unit at the facility, if

15 the order has been issued to 1 or more

16 parties, and all other potentially respon17 sible parties not subject to the order at the

18 facility are described in subsection (q), (r),

19 (s), (t), (u), (v), (w), or (x) of section 107

20 or subsection (g) of this section or are in21 solvent, bankrupt, or defunct, the Adminis22 trator shall, on petition by the party per23 forming under section 106(b), calculate the

24 statutory orphan share for the facility.
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1 ‘‘(ii) PAYMENT.—Payment of any

2 statutory orphan share under this subpara3 graph shall be made in accordance with

4 subsection (p)(2)(J), as if the parties had

5 settled.

6 ‘‘(p) GENERAL PROVISIONS APPLICABLE TO STATU7 TORY ORPHAN SHARES AND FAIR SHARE SETTLE8 MENTS.—

9 ‘‘(1) IN GENERAL.—A fair share settlement

10 under subsection (n) and a statutory orphan share

11 under subsection (o) shall be subject to paragraph

12 (2).

13 ‘‘(2) PROVISIONS APPLICABLE TO STATUTORY

14 ORPHAN SHARES AND FAIR SHARE SETTLEMENTS.—

15 ‘‘(A) STAY OF LITIGATION AND ENFORCE16 MENT.—

17 ‘‘(i) IN GENERAL.—All contribution

18 and cost recovery actions under this Act

19 against each party described in section

20 107(t) and subsection (g) of this section

21 are stayed until the Administrator offers

22 those parties a settlement.

23 ‘‘(ii) SUSPENSION OF STATUTE OF

24 LIMITATIONS.—Any statute of limitations

25 applicable to an action described in clause
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1 (i) is suspended during the period that a

2 stay under this subparagraph is in effect.

3 ‘‘(B) FAILURE OR INABILITY TO COM4 PLY.—If the President fails to fund a statutory

5 orphan share, reimburse a party, or include a

6 statutory orphan share estimate in any settle7 ment when required to do so under this Act, the

8 President shall not—

9 ‘‘(i) issue any new order under section

10 106 at the facility to any non-Federal

11 party; or

12 ‘‘(ii) commence or maintain any new

13 or existing action to recover response costs

14 at the facility.

15 ‘‘(C) AMOUNTS OWED.—

16 ‘‘(i) HAZARDOUS SUBSTANCE SUPER17 FUND MANAGEMENT.—The President may

18 provide partial statutory orphan share

19 funding and partial reimbursement pay20 ments to a party on a schedule that en21 sures an equitable distribution of payments

22 to all eligible parties on a timely basis.

23 ‘‘(ii) PRIORITY.—The priority for par24 tial payments shall be based on the length
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1 of time that has passed since the payment

2 obligation arose.

3 ‘‘(iii) PAYMENT FROM FUNDS MADE

4 AVAILABLE FOR SUBSEQUENT FISCAL

5 YEARS.—Any amounts payable in excess of

6 available appropriations in any fiscal year

7 shall be paid from amounts made available

8 for subsequent fiscal years, along with in9 terest on the unpaid balances at the rate

10 equal to that of the current average mar11 ket yield on outstanding marketable obliga12 tions of the United States with a maturity

13 of 1 year.

14 ‘‘(D) CONTRIBUTION PROTECTION.—

15 ‘‘(i) IN GENERAL.—A settlement

16 under this subsection, subsection (g), or

17 section 107(t) shall provide complete pro18 tection from all claims for contribution or

19 cost recovery for response costs that are

20 addressed in the settlement.

21 ‘‘(ii) COSTS BEYOND SCOPE OF ALLO22 CATION.—In the case of response costs at

23 a facility that, as a result of a prior, ad24 ministrative or judicially-approved settle25 ment at the facility, are not within the
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1 scope of an allocation under subsection (n),

2 a party shall retain the right to seek cost

3 recovery or contribution from any other

4 party in accordance with the prior settle5 ment, except that no party may seek con6 tribution for any response costs at the fa7 cility from—

8 ‘‘(I) a party described in sub9 section (q), (r), (s), (u), (v), (w), or

10 (x) of section 107; or

11 ‘‘(II) a party that has settled its

12 liability under section 107(t) or sub13 section (g) of this section.

14 ‘‘(E) LIABILITY FOR ATTORNEY’S FEES

15 FOR CERTAIN ACTIONS.—A person that, after

16 the date of enactment of this subsection, com17 mences a civil action for contribution under this

18 Act against a person that is not liable by oper19 ation of subsections (q), (r), (s), or (u) of sec20 tion 107, or has resolved its liability to the

21 United States under subsection (n), subsection

22 (g), or section 107(t), shall be liable to that

23 person for all reasonable costs of defending the

24 action, including all reasonable attorney’s fees

25 and expert witness fees.
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1 ‘‘(F) ILLEGAL ACTIVITIES.—Subsections

2 (q), (r), (s), (t), (u), (v), (w), and (x) of section

3 107 and subsection (g) of this section shall not

4 apply to—

5 ‘‘(i) any person whose liability for re6 sponse costs under section 107(a) is other7 wise based on any act, omission, or status

8 that is determined by a court or adminis9 trative body of competent jurisdiction,

10 within the applicable statute of limitation,

11 to have been a violation of any Federal or

12 State law pertaining to the treatment,

13 storage, disposal, or handling of hazardous

14 substances if the violation pertains to a

15 hazardous substance, the release or threat

16 of release of which caused the incurrence

17 of response costs at the vessel or facility;

18 ‘‘(ii) a person described in section

19 107(o); or

20 ‘‘(iii) a bona fide prospective pur21 chaser.

22 ‘‘(G) EXCEPTION.—

23 ‘‘(i) IN GENERAL.—The President

24 may decline to reimburse or offer a settle25 ment to a potentially responsible party
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1 under subsections (g) and (n) if the Presi2 dent makes a decision concerning a reim3 bursement or offer of a settlement under

4 clause (ii).

5 ‘‘(ii) REQUIREMENTS FOR REIM6 BURSEMENT OR OFFER OF A SETTLE7 MENT.—A potentially responsible party

8 may be denied a reimbursement or settle9 ment under clause (i)—

10 ‘‘(I) to the extent that the person

11 or entity has operational control over

12 a vessel or facility, if—

13 ‘‘(aa) the person or entity

14 fails to provide full cooperation

15 to, assistance to, and access to

16 the vessel or facility to persons

17 that are responsible for response

18 actions at the vessel or facility

19 (including the cooperation and

20 access necessary for the installa21 tion, integrity, operation, and

22 maintenance of any complete or

23 partial response actions at the

24 vessel or facility); or
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1 ‘‘(bb) the person or entity

2 acts in such a way as to impede

3 the effectiveness or integrity of

4 any institutional control em5 ployed at the vessel or facility; or

6 ‘‘(II) if the person or entity fails

7 to comply with any request for infor8 mation or administrative subpoena

9 issued by the President under this

10 Act.

11 ‘‘(H) BASIS OF DETERMINATION.—If the

12 President determines that a potentially respon13 sible party is not eligible for settlement under

14 this paragraph, the President shall state the

15 reasons for the determination in writing to any

16 potentially responsible party that requests a

17 settlement under this paragraph.

18 ‘‘(I) WAIVER.—

19 ‘‘(i) RESPONSE COSTS IN ALLOCA20 TION.—A party that settles its liability

21 under this subsection waives the right to

22 seek cost recovery or contribution under

23 this Act for any response costs that are ad24 dressed in the allocation.
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1 ‘‘(ii) RESPONSE COSTS OF FACIL2 ITY.—A party that settles its liability

3 under subsection (g) or section 107(t)

4 waives its right to seek cost recovery or

5 contribution under this Act for any re6 sponse costs at the facility.

7 ‘‘(J) PERFORMANCE OF RESPONSE AC8 TIONS.—

9 ‘‘(i) IN GENERAL.—Except as pro10 vided in subparagraph (B), the President

11 may require, as a condition of settlement

12 under subsection (n) and section 107(t),

13 that 1 or more parties conduct a response

14 action at the facility.

15 ‘‘(ii) REIMBURSEMENT.—

16 ‘‘(I) IN GENERAL.—The Presi17 dent shall reimburse a party that set18 tles its liability under subsection (n)

19 or section 107(t) for response costs

20 incurred in performing a response ac21 tion that exceed the amount of a set22 tlement approved under subsection (n)

23 or section 107(t).

24 ‘‘(II) PRO RATA REIMBURSE25 MENT.—The President shall provide
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1 equitable pro rata reimbursement to

2 such parties on at least an annual

3 basis.

4 ‘‘(iii) RESPONSE ACTIONS.—No party

5 described in subsections (q), (r), (s), (u),

6 (v), (w) or (x) of section 107 or subsection

7 (g) of this section may be required to per8 form a response action as a condition of

9 settlement or ordered to conduct a re10 sponse action under section 106.

11 ‘‘(K) JUDICIAL REVIEW.—

12 ‘‘(i) IN GENERAL.—A court shall not

13 approve any settlement under this Act un14 less the settlement includes an estimate of

15 the statutory orphan share that is fair,

16 reasonable and consistent with this Act.

17 ‘‘(ii) STATUTORY ORPHAN SHARE SET18 TLEMENT.—If a court determines that an

19 estimate of a statutory orphan share is not

20 fair, reasonable, or consistent with this

21 Act, the court may—

22 ‘‘(I) approve the settlement; and

23 ‘‘(II) disapprove and remand the

24 estimate of the statutory orphan

25 share.’’.
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1 (b) REGULATIONS.—The President shall issue regu2 lations to implement this title not later than 180 days

3 after the date of enactment of this Act.

4 (c) TECHNICAL AMENDMENT.—Section 106(b)(1) of

5 the Comprehensive Environmental Response, Compensa6 tion, and Liability Act of 1980 (42 U.S.C. 9706(b)(1))

7 is amended by adding at the end the following: ‘The con8 duct or approval of an allocation of liability under this

9 Act, including any settlement of liability with a party

10 based on the allocation, shall not constitute sufficient

11 cause for any party (including a party that settled its li12 ability based on the allocation) to willfully violate, or fail

13 or refuse to comply with, any order of the President under

14 subsection (a).’’.

15 (d) LAW ENFORCEMENT AGENCIES NOT INCLUDED

16 AS OWNER OR OPERATOR.—Section 101(20)(D) of the

17 Comprehensive Environmental Response, Compensation,

18 and Liability Act of 1980 (42 U.S.C. 9601(20(D)) is

19 amended by inserting after ‘‘or control’’ the following:

20 ‘‘through seizure or otherwise in connection with law en21 forcement activity, or’’.

22 (e) COMMON CARRIERS.—Section 107(b)(3) of the

23 Comprehensive Environmental Response, Compensation,

24 and Liability Act of 1980 (42 U.S.C. 9607(b)(3)) is
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1 amended by striking ‘‘a published tariff and acceptance’’

2 and inserting ‘‘a contract’’.

3 SEC. 304. TREATMENT OF RELIGIOUS, CHARITABLE, SCI4 ENTIFIC, AND EDUCATIONAL ORGANIZA5 TIONS AS OWNERS OR OPERATORS.

6 Section 101(20) of the Comprehensive Environmental

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

8 U.S.C. 9601(20)) is amended by adding at the end the

9 following:

10 ‘‘(H) RELIGIOUS, CHARITABLE, SCI11 ENTIFIC, AND EDUCATIONAL ORGANIZATIONS.—

12 The term ‘owner or operator’ includes an orga13 nization described in section 501(c)(3) of the

14 Internal Revenue Code of 1986 that is orga15 nized and operated exclusively for religious,

16 charitable, scientific, or educational purposes

17 and that holds legal or equitable title to a vessel

18 or facility.’’.

19 TITLE IV—REMEDY SELECTION

20 AND NATURAL RESOURCE

21 DAMAGES

22 SEC. 401. SELECTION AND IMPLEMENTATION OF REMEDIAL

23 ACTIONS.

24 (a) PREFERENCE FOR TREATMENT.—Section 121(b)

25 of the Comprehensive Environmental Response Compensa-
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1 tion, and Liability Act of 1980 (42 U.S.C. 9621(b)) is

2 amended by striking paragraph (1) and inserting the fol3 lowing:

4 ‘‘(1) PREFERENCE FOR TREATMENT.—

5 ‘‘(A) IN GENERAL.—For any discrete area

6 containing a principal hazardous constituent of

7 a hazardous substance, pollutant, or contami8 nant that, based on site specific factors, pre9 sents a substantial risk to human health or the

10 environment because of—

11 ‘‘(i) the high toxicity of the principal

12 hazardous constituent; or

13 ‘‘(ii) the high mobility of the principal

14 hazardous constituent;

15 the remedy selection process shall include a

16 preference for a remedial action that includes

17 treatment that reduces the risk posed by the

18 principal hazardous constituent over remedial

19 actions that do not include such treatment.

20 ‘‘(B) FINAL CONTAINMENT.—With respect

21 to a discrete area described in subparagraph

22 (A), the President may select a final contain23 ment remedy at a landfill or mining site or

24 similar facility if—
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1 ‘‘(i)(I) the discrete area is small rel2 ative to the overall volume of waste or con3 tamination being addressed;

4 ‘‘(II) the discrete area is not readily

5 identifiable and accessible; and

6 ‘‘(III) without the presence of the dis7 crete area, containment would have been

8 selected as the appropriate remedy under

9 this subsection for the larger body of waste

10 or larger area of contamination in which

11 the discrete area is located; or

12 ‘‘(ii) the volume and size of the dis13 crete area is extraordinary compared to

14 other facilities listed on the National Prior15 ities List, and, because of the volume, size,

16 and other characteristics of the discrete

17 area, it is highly unlikely that any treat18 ment technology will be developed that

19 could be implemented at a reasonable

20 cost.’’.

21 (b) COMPLIANCE WITH FEDERAL AND STATE

22 LAWS.—Section 121(d)(2) of the Comprehensive Environ23 mental Response, Compensation, and Liability Act of

24 1980 (42 U.S.C. 9621(d)(2)) is amended by striking sub25 paragraph (C) and inserting the following:
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1 ‘‘(C) COMPLIANCE WITH FEDERAL AND

2 STATE LAWS.—

3 ‘‘(i) APPLICABLE REQUIREMENTS.—

4 ‘‘(I) IN GENERAL.—Subject to

5 clause (iii), a remedial action shall re6 quire, at the completion of the reme7 dial action, a level or standard of con8 trol for each hazardous substance,

9 pollutant, and contaminant that at

10 least attains the substantive require11 ments of all promulgated standards,

12 requirements, criteria, and limitations,

13 under—

14 ‘‘(aa) each Federal environ15 mental law, that are legally appli16 cable to the conduct or operation

17 of the remedial action or to the

18 level of cleanup for hazardous

19 substances, pollutants, or con20 taminants addressed by the re21 medial action;

22 ‘‘(bb) any State environ23 mental or facility siting law, that

24 are more stringent than any Fed25 eral standard, requirement, cri-
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1 terion, or limitation and are le2 gally applicable to the conduct or

3 operation of the remedial action

4 or to the level of cleanup for haz5 ardous substances, pollutants, or

6 contaminants addressed by the

7 remedial action, and that the

8 State demonstrates are of general

9 applicability, publishes and iden10 tifies to the President in a timely

11 manner as being applicable to the

12 remedial action, and has consist13 ently applied to other remedial

14 actions in the State; and

15 ‘‘(cc) any more stringent

16 standard, requirement, criterion,

17 or limitation relating to an envi18 ronmental or facility siting law

19 promulgated by the State after

20 the date of enactment of the

21 Superfund Amendments and Re22 authorization Act of 1999 that

23 the State demonstrates is of gen24 eral applicability, publishes and

25 identifies to the President in a
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1 timely manner as being applica2 ble to the remedial action, and

3 has consistently applied to other

4 remedial actions in the State.

5 ‘‘(II) CONTAMINATED MEDIA.—

6 Compliance with substantive provi7 sions of section 3004 of the Solid

8 Waste Disposal Act (42 U.S.C. 6924)

9 shall not be required with respect to

10 return, replacement, or disposal of

11 contaminated media (including residu12 als of contaminated media and other

13 solid wastes generated onsite in the

14 conduct of a remedial action) into the

15 same media in or very near then-exist16 ing areas of contamination onsite at a

17 facility.

18 ‘‘(ii) APPLICABILITY OF REQUIRE19 MENTS TO RESPONSE ACTIONS CON20 DUCTED ONSITE.—No procedural or ad21 ministrative requirement of any Federal,

22 State, or local law (including any require23 ment for a permit) shall apply to a re24 sponse action that is conducted onsite at a

25 facility if the response action is selected
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1 and carried out in compliance with this

2 section.

3 ‘‘(iii) WAIVER PROVISIONS.—

4 ‘‘(I) IN GENERAL.—The Presi5 dent may select a remedial action at a

6 facility that meets the requirements of

7 subparagraph (B) that does not attain

8 a level or standard of control that is

9 at least equivalent to an applicable re10 quirement described in clause (i)(I) if

11 the President makes any of the fol12 lowing findings:

13 ‘‘(aa) PART OF REMEDIAL

14 ACTION.—The selected remedial

15 action is only part of a total re16 medial action that will attain the

17 applicable requirements of clause

18 (i)(I) when the total remedial ac19 tion is completed.

20 ‘‘(bb) GREATER RISK.—At21 tainment of the requirements of

22 clause (i)(I) will result in greater

23 risk to human health or the envi24 ronment than alternative options.
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1 ‘‘(cc) TECHNICAL IMPRAC2 TICABILITY.—Attainment of the

3 requirements of clause (i)(I) is

4 technically impracticable.

5 ‘‘(dd) EQUIVALENT TO

6 STANDARD OF PERFORMANCE.—

7 The selected remedial action will

8 attain a standard of performance

9 that is equivalent to that re10 quired under clause (i)(I)

11 through use of another method

12 or approach.

13 ‘‘(ee) INCONSISTENT APPLI14 CATION.—With respect to a State

15 requirement made applicable

16 under clause (i)(I), the State has

17 not consistently applied (or dem18 onstrated the intention to apply

19 consistently) the requirement in

20 similar circumstances to other re21 medial actions in the State.

22 ‘‘(ff) BALANCE.—In the case

23 of a remedial action to be funded

24 predominantly under section 104

25 using amounts from the Fund, a
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1 selection of a remedial action

2 that attains the level or standard

3 of control described in clause

4 (i)(I) will not provide a balance

5 between the need for protection

6 of public health and welfare and

7 the environment at the facility,

8 and the need to make amounts

9 from the Fund available to re10 spond to other facilities that may

11 present a threat to public health

12 or welfare or the environment,

13 taking into consideration the rel14 ative immediacy of the threats

15 presented by the various facili16 ties.

17 ‘‘(II) PUBLICATION.—The Presi18 dent shall publish any findings made

19 under subclause (I), including an ex20 planation and appropriate documenta21 tion and an explanation of how the se22 lected remedial action meets the re23 quirements of this section.

24 ‘‘(D) NO STANDARD.—If no applicable

25 Federal or State standard is established for a
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1 specific hazardous substance, pollutant, or con2 taminant, a remedial action shall attain a

3 standard that the President determines to be

4 protective of human health and the environ5 ment.

6 SEC. 402. USE OF RISK ASSESSMENT IN REMEDY SELEC7 TION.

8 (a) IN GENERAL.—Section 121(a) of the Comprehen9 sive Environmental Response, Compensation, and Liabil10 ity Act of 1980 (42 U.S.C. 9621(a)) is amended by adding

11 at the end the following: ‘‘In selecting an appropriate re12 medial action, the President shall conduct and utilize a

13 facility-specific risk evaluation in accordance with section

14 129.’’.

15 (b) FACILITY-SPECIFIC RISK EVALUATIONS.—Title I

16 of the Comprehensive Environmental Response, Com17 pensation, and Liability Act of 1980 (42 U.S.C. 9601 et

18 seq.) (as amended by section 201(b)) is amended by add19 ing at the end the following:

20 ‘‘SEC. 129. FACILITY-SPECIFIC RISK EVALUATIONS.

21 ‘‘(a) IN GENERAL.—The goal of a facility-specific

22 risk evaluation performed under this Act is to provide in23 formative and understandable estimates that neither mini24 mize nor exaggerate the current or potential risk posed

25 by a facility.
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1 ‘‘(b) RISK EVALUATION PRINCIPLES.—

2 ‘‘(1) IN GENERAL.—A facility-specific risk eval3 uation shall—

4 ‘‘(A)(i) use chemical-specific and facility5 specific data in preference to default assump6 tions whenever it is practicable to obtain such

7 data; or

8 ‘‘(ii) if it is not practicable to obtain such

9 data, use a range and distribution of realistic

10 and scientifically supportable default assump11 tions;

12 ‘‘(B) ensure that the exposed population

13 and all current and potential pathways and pat14 terns of exposure are evaluated;

15 ‘‘(C) consider the current or reasonably

16 anticipated future use of the land and water re17 sources in estimating exposure; and

18 ‘‘(D) consider the use of institutional con19 trols that comply with the requirements of sec20 tion 121.

21 ‘‘(2) CRITERIA FOR USE OF SCIENCE.—Any

22 chemical-specific and facility-specific data or default

23 assumptions used in connection with a facility-spe24 cific risk evaluation shall be consistent with the cri-
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1 teria for the use of science in decisionmaking stated

2 in subsection (e).

3 ‘‘(3) INSTITUTIONAL CONTROLS.—In con4 ducting a risk assessment to determine the need for

5 remedial action, the President may consider only in6 stitutional controls that are in place at the facility

7 at the time at which the risk assessment is con8 ducted.

9 ‘‘(c) USES.—A facility-specific risk evaluation shall

10 be used to—

11 ‘‘(1) determine the need for remedial action;

12 ‘‘(2) evaluate the current and potential hazards,

13 exposures, and risks at the facility;

14 ‘‘(3) screen out potential contaminants, areas,

15 or exposure pathways from further study at a facil16 ity;

17 ‘‘(4) evaluate the protectiveness of alternative

18 remedial actions proposed for a facility;

19 ‘‘(5) demonstrate that the remedial action se20 lected for a facility is capable of protecting human

21 health and the environment considering the current

22 and reasonably anticipated future use of the land

23 and water resources; and

24 ‘‘(6) establish protective concentration levels if

25 no applicable requirement under section 121(d)(2)(c)
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1 exists or if an otherwise applicable requirement is

2 not sufficiently protective of human health and the

3 environment.

4 ‘‘(d) RISK COMMUNICATION PRINCIPLES.—In car5 rying out this section, the President shall ensure that the

6 presentation of information on public health effects is

7 comprehensive, informative, and understandable. The doc8 ument reporting the results of a facility-specific risk eval9 uation shall specify, to the extent practicable—

10 ‘‘(1) each population addressed by any estimate

11 of public health effects;

12 ‘‘(2) the expected risk or central estimate of

13 risk for the specific populations;

14 ‘‘(3) each appropriate upper-bound or lower15 bound estimate of risk;

16 ‘‘(4) each significant uncertainty identified in

17 the process of the assessment of public health effects

18 and research that would assist in resolving the un19 certainty; and

20 ‘‘(5) peer-reviewed studies known to the Presi21 dent that support, are directly relevant to, or fail to

22 support any estimate of public health effects and the

23 methodology used to reconcile inconsistencies in the

24 scientific data.
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1 ‘‘(e) USE OF SCIENCE IN DECISIONMAKING.—In car2 rying out this section, the President shall use—

3 ‘‘(1) the best available peer-reviewed science

4 and supporting studies conducted in accordance with

5 sound and objective scientific practices; and

6 ‘‘(2) data collected by accepted methods or best

7 available methods (if the reliability of the method

8 and the nature of the decision justifies use of the

9 data).

10 ‘‘(f) REGULATIONS.—Not later than 18 months after

11 the date of enactment of this section, the President shall

12 issue a final regulation implementing this section.’’.

13 SEC. 403. NATURAL RESOURCE DAMAGES.

14 Section 107(f)(1) of the Comprehensive Environ15 mental Response, Compensation, and Liability Act of

16 1980 (42 U.S.C. 9607(f)(1)), is amended by striking the

17 fifth sentence (beginning ‘‘The measure of damages’’) and

18 inserting the following: ‘‘The measure of damages in any

19 action under subsection (a)(4)(C) may include only the

20 reasonable costs of: (i) restoring, replacing or acquiring

21 the equivalent (referred to collectively as ‘‘restoration’’) of

22 an injured, destroyed or lost natural resource to reinstate

23 the human uses and environmental functions of the nat24 ural resource; (ii) providing a substantially equivalent re25 source during the period of any interim lost use of the
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1 injured, destroyed or lost resource to the extent that a

2 substitute resource providing the uses is not otherwise rea3 sonably available; and (iii) assessing the damages. Where

4 a unique resource has been destroyed, lost, or cannot be

5 restored, the measure of damages may include the reason6 able costs of expediting or enhancing the restoration of

7 appropriate substitute resources. For purposes of this

8 paragraph, reasonable costs of alternative restoration

9 measures shall be determined based on the following fac10 tors: technical feasibility; cost effectiveness; the period of

11 time required for restoration; and whether a response ac12 tion or natural recovery will reinstate the uses provided

13 by a natural resource within a reasonable period of time.’’.

14 SEC. 404. DOUBLE RECOVERY.

15 Section 107(f)(1) of the Comprehensive Environ16 mental Response, Compensation, and Liability Act of

17 1980 (42 U.S.C. 9607(f)(1)) is amended by striking the

18 sixth sentence (beginning ‘‘There shall be no’’) and insert19 ing the following: ‘‘A person shall not be liable for dam20 ages under this paragraph for an injury to, destruction

21 of, or loss of a natural resource, or a loss of the uses pro22 vided by the natural resource, that have been recovered

23 under this Act or any other Federal, State or Tribal law

24 for the same injury to, destruction of, or loss of the nat-
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•S 1537 IS

1 ural resource or loss of the uses provided by the natural

2 resource.’’.

3 TITLE V—FUNDING

4 SEC. 501. USES OF HAZARDOUS SUBSTANCE SUPERFUND.

5 The Comprehensive Environmental Response, Com6 pensation, and Liability Act of 1980 is amended by strik7 ing sections 111 and 112 (9611, 9612) and inserting the

8 following:

9 ‘‘SEC. 111. USES OF HAZARDOUS SUBSTANCE SUPERFUND.

10 ‘‘(a) IN GENERAL.—

11 ‘‘(1) SPECIFIC USES.—The President shall use

12 amounts appropriated out of the Hazardous Sub13 stance Superfund only—

14 ‘‘(A) for the performance of response ac15 tions;

16 ‘‘(B) to enter into mixed funding agree17 ments in accordance with section 122; and

18 ‘‘(C) to reimburse a party for response

19 costs incurred in excess of the allocated share

20 of the party as described in a final settlement

21 under section 122.

22 ‘‘(2) AUTHORIZATION OF APPROPRIATIONS.—

23 There are authorized to be appropriated from the

24 Hazardous Substances Superfund for the purposes
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•S 1537 IS

1 specified in paragraph (1), not more than the fol2 lowing amounts:

3 ‘‘(A) For fiscal year 2000,

4 $1,165,000,000, of which not more than

5 $200,000,000 shall be used for the purposes set

6 forth in subparagraphs (B) and (C) of para7 graph (1);

8 ‘‘(B) For fiscal year 2001,

9 $1,165,000,000, of which not more than

10 $200,000,000 shall be used for the purposes set

11 forth in subparagraphs (B) and (C) of para12 graph (1);

13 ‘‘(C) For fiscal year 2002, $1,120,000,000,

14 of which not more than $200,000,000 shall be

15 used for the purposes set forth in subpara16 graphs (B) and (C) of paragraph (1);

17 ‘‘(D) For fiscal year 2003,

18 $1,075,000,000, of which not more than

19 $200,000,000 shall be used for the purposes set

20 forth in subparagraphs (B) and (C) of para21 graph (1); and

22 ‘‘(E) For fiscal year 2004,

23 $1,025,000,000, of which not more than

24 $200,000,000 shall be used for the purposes set
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•S 1537 IS

1 forth in subparagraphs (B) and (C) of para2 graph (1).

3 ‘‘(b) CLAIMS AGAINST HAZARDOUS SUBSTANCE

4 SUPERFUND.—Claims against the Hazardous Substance

5 Superfund shall not be valid or paid in excess of the total

6 amount in the Hazardous Substance Superfund at any 1

7 time.

8 ‘‘(c) REGULATIONS.—

9 ‘‘(1) OBLIGATION OF FUNDS.—The President

10 may promulgate regulations designating 1 or more

11 Federal officials that may obligate amounts in the

12 Hazardous Substance Superfund in accordance with

13 this section.

14 ‘‘(2) NOTICE TO POTENTIAL INJURED PAR15 TIES.—

16 ‘‘(A) IN GENERAL.—The President shall

17 promulgate regulations with respect to the no18 tice that shall be provided to potential injured

19 parties by an owner and operator of any vessel

20 or facility from which a hazardous substance

21 has been released.

22 ‘‘(B) SUBSTANCE.—The regulations under

23 subparagraph (A) shall describe the notice that

24 would be appropriate to carry out this title.

25 ‘‘(C) COMPLIANCE.—
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1 ‘‘(i) IN GENERAL.—On promulgation

2 of regulations under subparagraph (A), an

3 owner and operator described in that sub4 paragraph shall provide notice in accord5 ance with the regulations.

6 ‘‘(ii) PRE-PROMULGATION RE7 LEASES.—In the case of a release of a haz8 ardous substance that occurs before regu9 lations under subparagraph (A) are pro10 mulgated, an owner and operator described

11 in that subparagraph shall provide reason12 able notice of any release to potential in13 jured parties by publication in local news14 papers serving the affected area.

15 ‘‘(iii) RELEASES FROM PUBLIC VES16 SELS.—The President shall provide such

17 notification as is appropriate to potential

18 injured parties with respect to releases

19 from public vessels.

20 ‘‘(d) NATURAL RESOURCES.—

21 ‘‘(1) IN GENERAL.—Except as provided in para22 graph (2), funds may not be used under this Act for

23 the restoration, rehabilitation, or replacement or ac24 quisition of the equivalent of any natural resource

25 until a plan for the use of the funds for those pur-
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•S 1537 IS

1 poses has been developed and adopted, after ade2 quate public notice and opportunity for hearing and

3 consideration of all public comment, by—

4 ‘‘(A) affected Federal agencies;

5 ‘‘(B) the Governor of each State that sus6 tained damage to natural resources that are

7 within the borders of, belong to, are managed

8 by, or appertain to the State; and

9 ‘‘(C) the governing body of any Indian

10 tribe that sustained damage to natural re11 sources that—

12 ‘‘(i) are within the borders of, belong

13 to, are managed by, appertain to, or are

14 held in trust for the benefit of the tribe; or

15 ‘‘(ii) belong to a member of the tribe,

16 if those resources are subject to a trust re17 striction on alienation.

18 ‘‘(2) EMERGENCY ACTION EXEMPTION.—Funds

19 may be used under this Act for the restoration, re20 habilitation, or replacement or acquisition of the

21 equivalent of any natural resource only in cir22 cumstances requiring action to—

23 ‘‘(A) avoid an irreversible loss of a natural

24 resource;
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•S 1537 IS

1 ‘‘(B) prevent or reduce any continuing

2 danger to a natural resource; or

3 ‘‘(C) prevent the loss of a natural resource

4 in an emergency situation similar to those de5 scribed in subparagraphs (A) and (B).

6 ‘‘(e) POST-CLOSURE LIABILITY FUND.—The Presi7 dent shall use the amounts in the Post-closure Liability

8 Fund for—

9 ‘‘(1) any of the purposes specified in subsection

10 (a) with respect to a hazardous waste disposal facil11 ity for which liability has been transferred to the

12 Post-closure Liability Fund under section 107(k);

13 and

14 ‘‘(2) payment of any claim or appropriate re15 quest for costs of a response, damages, or other

16 compensation for injury or loss resulting from a re17 lease of a hazardous substance from a facility de18 scribed in paragraph (1) under—

19 ‘‘(A) section 107; or

20 ‘‘(B) any other Federal or State law.

21 ‘‘(f) INSPECTOR GENERAL.—

22 ‘‘(1) AUDIT.—In each fiscal year, the Inspector

23 General of the Environmental Protection Agency

24 shall conduct an annual audit of—
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1 ‘‘(A) all agreements and reimbursements

2 under subsection (a); and

3 ‘‘(B) all other activities of the Environ4 mental Protection Agency under this Act.

5 ‘‘(2) REPORT.—The Inspector General of the

6 Environmental Protection Agency shall submit to

7 Congress an annual report that—

8 ‘‘(A) describes the results of the audit

9 under paragraph (1); and

10 ‘‘(B) contains such recommendations as

11 the Inspector General considers to be appro12 priate.

13 ‘‘(g) FOREIGN CLAIMS.—To the extent that this Act

14 permits, a foreign claimant may assert a claim to the same

15 extent that a United States claimant may assert a claim

16 if—

17 ‘‘(1) the release of a hazardous substance

18 occurred—

19 ‘‘(A) in the navigable waters of a foreign

20 country of which the claimant is a resident; or

21 ‘‘(B) in or on the territorial sea or adja22 cent shoreline of a foreign country described in

23 subparagraph (A);

24 ‘‘(2) the claimant is not otherwise compensated

25 for the loss of the claimant;
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•S 1537 IS

1 ‘‘(3) the hazardous substance was released from

2 a facility or vessel located adjacent to or within the

3 navigable waters under the jurisdiction of, or was

4 discharged in connection with activities conducted

5 under—

6 ‘‘(A) section 20(a)(2) of the Outer Conti7 nental Shelf Lands Act (43 U.S.C. 1346(a)(2));

8 or

9 ‘‘(B) the Deepwater Port Act of 1974 (33

10 U.S.C. 1501 et seq.); and

11 ‘‘(4)(A) recovery is authorized by a treaty or an

12 executive agreement between the United States and

13 the foreign country; or

14 ‘‘(B) the Secretary of State, in consultation

15 with the Attorney General and other appropriate of16 ficials, certifies that the foreign country provides a

17 comparable remedy for United States claimants.

18 ‘‘(h) AUTHORIZATION OF APPROPRIATIONS OUT OF

19 THE GENERAL FUND.—

20 ‘‘(1) HEALTH ASSESSMENTS AND HEALTH CON21 SULTATIONS.—There are authorized to be appro22 priated to the Agency for Toxic Substances and Dis23 ease Registry to conduct health assessments and

24 health consultations under this Act, and for epi25 demiologic and laboratory studies, preparation of
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1 toxicologic profiles, development and maintenance of

2 a registry of persons exposed to hazardous sub3 stances to allow long-term health effects studies, and

4 diagnostic services not otherwise available to deter5 mine whether persons in populations exposed to haz6 ardous substances in connection with a release or

7 suspected release are suffering from long-latency dis8 eases:

9 ‘‘(A) For fiscal year 2000, $60,000,000.

10 ‘‘(B) For fiscal year 2001, $55,000,000.

11 ‘‘(C) For fiscal year 2002, $55,000,000.

12 ‘‘(D) For fiscal year 2003, $50,000,000.

13 ‘‘(E) For fiscal year 2004, $50,000,000.

14 ‘‘(2) HAZARDOUS SUBSTANCE RESEARCH, DEM15 ONSTRATION, AND TRAINING.—

16 ‘‘(A) IN GENERAL.—There are authorized

17 to be appropriated not more than the following

18 amounts for the purposes of section 311(a):

19 ‘‘(i) For fiscal year 2000,

20 $40,000,000.

21 ‘‘(ii) For fiscal year 2001,

22 $40,000,000.

23 ‘‘(iii) For fiscal year 2002,

24 $40,000,000.
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1 ‘‘(iv) For each of fiscal years 2003

2 and 2004, $40,000,000.

3 ‘‘(B) TRAINING LIMITATION.—Not more

4 than 15 percent of the amounts appropriated

5 under subparagraph (A) shall be used for train6 ing under section 311(a) for any fiscal year.

7 ‘‘(C) UNIVERSITY HAZARDOUS SUBSTANCE

8 RESEARCH CENTERS.—Not more than

9 $5,000,000 of the amounts available in the

10 Hazardous Substance Superfund may be used

11 in any of fiscal years 2000 through 2004 for

12 the purposes of section 311(d).

13 ‘‘(3) BROWNFIELD GRANT PROGRAMS.—There

14 are authorized to be appropriated to carry out sec15 tion 127 $100,000,000 for each of fiscal years 2000

16 through 2004.

17 ‘‘(4) QUALIFYING STATE RESPONSE PRO18 GRAMS.—There are authorized to be appropriated to

19 maintain, establish, and administer qualifying State

20 response programs during the first 5 full fiscal years

21 following the date of enactment of this paragraph

22 under a formula established by the Administrator,

23 $100,000,000 for each of fiscal years 2000 through

24 2004.
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1 ‘‘(5) DEPARTMENT OF JUSTICE.—There is au2 thorized to be appropriated to the Attorney General,

3 for enforcement of this Act, $30,000,000 for each

4 of fiscal years 2000 through 2004.

5 ‘‘(6) PROHIBITION OF TRANSFER.—None of the

6 funds authorized to be appropriated under this sub7 section may be transferred to any other Federal

8 agency.’’.

9 (b) CONFORMING AMENDMENTS.—

10 (1) RESPONSE ACTIONS.—Section 104(c) of the

11 Comprehensive Environmental Response Compensa12 tion, and Liability Act of 1980 (42 U.S.C. 9604(c))

13 is amended—

14 (A) in paragraph (1), by striking ‘‘obliga15 tions from the Fund, other than those author16 ized by subsection (b) of this section,’’ and in17 serting ‘‘, such response actions’’; and

18 (B) in paragraph (7), by striking ‘‘shall be

19 from funds received by the Fund from amounts

20 recovered on behalf of such fund under this

21 Act’’ and inserting ‘‘shall be from appropria22 tions out of the general fund of the Treasury’’.

23 (2) INFORMATION GATHERING AND ANAL24 YSIS.—Section 105(g)(4) of the Comprehensive En25 vironmental Response Compensation, and Liability
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1 Act of 1980 (42 U.S.C. 9605(g)(4)) is amended by

2 striking ‘‘expenditure of monies from the Fund for’’.

3 (3) PRESIDENT.—Section 107(c)(3) of the

4 Comprehensive Environmental Response Compensa5 tion, and Liability Act of 1980 (42 U.S.C.

6 9607(c)(3)) is amended in the first sentence by

7 striking ‘‘Fund’’ and inserting ‘‘President’’.

8 (4) OTHER LIABILITY.—Section 109(d) of the

9 Comprehensive Environmental Response Compensa10 tion, and Liability Act of 1980 (42 U.S.C. 9609(d))

11 is amended by striking the second sentence.

12 (5) SOURCE OF FUNDING.—Section 119(c)(3)

13 of the Comprehensive Environmental Response Com14 pensation, and Liability Act of 1980 (42 U.S.C.

15 9619(c)(3)) is amended—

16 (A) in the second sentence, by striking

17 ‘‘For purposes of section 111, amounts’’ and in18 serting ‘‘Amounts’’; and

19 (B) in the third sentence—

20 (i) by striking ‘‘If sufficient funds are

21 unavailable in the Hazardous Substance

22 Superfund established under subchapter A

23 of chapter 98 of the Internal Revenue

24 Code of 1954 to make payments pursuant

25 to such indemnification or if the Fund is
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1 repealed, there’’ and inserting ‘‘There‘‘;

2 and

3 (ii) by striking ‘‘payments’’ and in4 serting ‘‘expenditures’’.

5 (6) REMEDIAL ACTION USING HAZARDOUS SUB6 STANCE SUPERFUND.—Section 121(d)(4)(F) of the

7 Comprehensive Environmental Response Compensa8 tion, and Liability Act of 1980 (42 U.S.C.

9 9621(d)(4)(F)) is amended—

10 (A) by striking ‘‘ using the Fund’’; and

11 (B) by striking ‘‘amounts from the Fund’’

12 and inserting ‘‘funds’’.

13 (7) AVAILABILITY OF FUNDING.—Section

14 122(f)(4)(F) of the Comprehensive Environmental

15 Response Compensation, and Liability Act of 1980

16 (42 U.S.C. 9622(f)(4)(F)) is amended by striking

17 ‘‘the Fund or other sources of’’.

Æ