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103D CONGRESS

1ST SESSION H. R. 2709

To encourage owners and operators of contaminated sites to clean up those

sites, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 22, 1993

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

Committees on Energy and Commerce and Public Works and Transportation

A BILL

To encourage owners and operators of contaminated sites

to clean up those sites, and for other purposes.

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

3 SECTION. 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Expedited Hazardous

5 Site Cleanup Act of 1993’’.

6 SEC. 2. DEFINITIONS.

7 (a) IN GENERAL.—The terms used in this Act shall

8 have the same meaning when used in the Comprehensive

9 Environmental Response, Compensation and Liability Act

10 of 1980 (42 U.S.C. 9601 and following).
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1 (b) ADDITIONAL DEFINITION.—For purposes of this

2 Act the term ‘‘contaminated facility’’ means any facility

3 to which this Act is applicable as provided in section 3.

4 SEC. 3. APPLICABILITY.

5 This Act applies to any facility listed on the National

6 Priorities List under the Comprehensive Environmental

7 Response, Compensation and Liability Act of 1980 (42

8 U.S.C. 9601 and following) and to any facility listed pur9 suant to State law on any list of facilities requiring re10 moval or remedial action for hazardous substances or any

11 other pollutant or contaminant, or any facility proposed

12 for inclusion on that list.

13 SEC. 4. AUTHORIZED STATE PROGRAMS.

14 (a) AGREEMENTS WITH STATES.—The Adminis15 trator may enter into cooperative agreements with any

16 State authorizing the State to administer the owner-opera17 tor initiated response program described in this Act with

18 respect to any facility described in section 3, any class or

19 category of such facilities or with respect to all such facili20 ties located in that State.

21 (b) STATE QUALIFICATIONS.—A State must meet the

22 following qualifications to be considered eligible to admin23 ister this program:

24 (1) The State must provide adequate opportuni25 ties for public participation.
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1 (2) The State must provide technical assistance

2 throughout the cleanup.

3 (3) The State must assume responsibility for

4 the cleanup if the owner fails or refuses to complete

5 the necessary cleanup.

6 (4) The State must provide adequate oversight

7 and has adequate enforcement authorities to ensure

8 that cleanups under this Act are completed in ac9 cordance with all applicable Federal and State re10 quirements, including ongoing operation and mainte11 nance or long-term monitoring activities.

12 (c) STATE APPROVAL OF RESPONSE ACTION.—Any

13 approval by a State administering an authorized program

14 under this section of a response action shall have the same

15 force and effect as approval by the Administrator under

16 this Act.

17 SEC. 5. PROCEDURES FOR UNDERTAKING RESPONSES.

18 (a) NOTICE OF INTENTION TO CONDUCT A RE19 SPONSE.—At any time after the date 6 months after the

20 date of enactment of this Act, any person who is the owner

21 or operator of a contaminated facility or portion thereof

22 may submit to the Administrator (or to the State in the

23 case of an authorized State program), and all known Po24 tentially Responsible Parties (PRPs) at the site, a notifi25 cation of intent to conduct a response pursuant to this
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1 Act. Such notice shall set forth information sufficient for

2 the Administrator (or the State, if authorized) to deter3 mine that the facility is eligible for the response program

4 under this Act.

5 (b) OVERSIGHT COSTS.—(1) As conditions of eligi6 bility for the response program set forth in this Act, the

7 facility owner giving notice shall—

8 (A) agree in advance to pay the reasonable and

9 necessary direct costs incurred and documented by

10 the Administrator (or the State, if authorized) in re11 viewing the response action and redevelopment plan

12 submitted as provided in subsection (d) and

13 overseeing the response;

14 (B) at the request of the Administrator (or

15 State, if authorized), secure a bond so that the

16 cleanup of the site, if started by the owner/operator,

17 is assured of completion; and

18 (C) make a one-time, nonrefundable payment of

19 $5,000 at the time such owner submits a response

20 action and redevelopment plan under subsection (d).

21 Such payment shall constitute a set-off against future

22 oversight costs incurred by the Administrator (or the

23 State, if authorized).

24 (2) The Administrator (or the State, if authorized)

25 shall establish procedures for arbitration of disputes con-
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1 cerning reimbursement of reasonable direct costs incurred

2 under this Act.

3 (c) FACILITY INVESTIGATION.—A response action

4 plan under this section shall include a schedule for con5 ducting a facility investigation which assesses each factor

6 listed below that is necessary to determine an appropriate

7 response to the particular release—

8 (1) The physical characteristics of the facility,

9 including important surface features, soils, geology,

10 hydrogeology, meteorology, and ecology.

11 (2) The characteristics or classifications of air,

12 surface water, and ground water at the facility.

13 (3) The general characteristics of the hazardous

14 substances and hazardous constituents at the facil15 ity, including quantity, state, concentration, toxicity,

16 propensity to bioaccumulate, persistence, and mobil17 ity.

18 (4) The extent to which the source of the re19 lease of hazardous substances and hazardous con20 stituents can be adequately identified and character21 ized.

22 (5) The actual and potential exposure pathways

23 through environmental media.

24 (6) The actual and potential exposure pathways

25 to human receptors.
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1 (7) The current uses of the property and adja2 cent properties.

3 (8) Other factors that pertain to the character4 ization of the facility for the purpose of a response

5 or selection of a response action alternative.

6 The results of the facility investigation shall be available

7 to the public upon request and a summary of such results

8 shall be provided public libraries in the vicinity of the facil9 ity.

10 (d) RESPONSE ACTION AND REDEVELOPMENT

11 PLAN.—

12 (1) PUBLIC NOTICE.—Any facility owner or op13 erator intending to carry out a response action

14 under this Act shall publish a notice in the news15 papers in the vicinity of the facility announcing his

16 intention to carry out such action together with a

17 notice that the facility investigation is available to

18 the public. The notice shall include information on

19 the location of the site, a general description of the

20 proposed response action, and a description of the

21 proposed future use of the site. Within 15 days of

22 receipt of a response action and redevelopment plan

23 prepared under paragraph (2), the Administrator (or

24 the State, if authorized) shall publish notice of re25 ceipt of the plan and a brief summary of the plan,
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1 information regarding the availability of the plan to

2 the public, and notice of a 30-day opportunity for

3 public comment. The facility owner shall submit (by

4 registered or certified mail) to the Federal and State

5 natural resource trustees and all known Potentially

6 Responsible Parties a copy of the notices required

7 under this subsection and a copy of the response ac8 tion plan at the same time as such notices are re9 quired to be published under this paragraph.

10 (2) REQUIREMENT FOR A RESPONSE ACTION

11 PLAN.—The owner of any facility proposing to un12 dertake response action under this Act shall prepare

13 and submit to the Administrator (or the State, if au14 thorized) a response action plan. The plan shall de15 scribe each of the following—

16 (A) The response action to be taken.

17 (B) The response standards to be achieved

18 in accordance with section 106 of this Act.

19 (C) The level or standard of control for

20 hazardous substances or hazardous constituents

21 that will be discharged or emitted into the envi22 ronment during the response action consistent

23 with the standards section under 106 of this

24 Act.
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1 (D) A schedule for completion of the re2 sponse action.

3 (E) A plan for public notification and par4 ticipation, including all known Potentially Re5 sponsible Parties at the site.

6 The plan may also include specific plans for the re7 development of the site for uses which are appro8 priate, given the degree of cleanup of the site and

9 the level of hazardous substances, if any, remaining

10 present at the site after completion of the response

11 action. The owner or operator may make public any

12 information in the response action plan, including

13 the specific redevelopment plans.

14 (3) REVIEW BY FEDERAL AND STATE AGEN15 CIES.—Any Federal or State natural resource trust16 ee and any other Federal or State agency may sub17 mit to the Administrator or (to the State if author18 ized) requests for revisions in the response action

19 and redevelopment plan during the 30 day public

20 comment period. The Administrator or (State if au21 thorized) shall respond to such requests within 30

22 days after the close of the public comment period.

23 The Administrator (or State) shall provide a written

24 statement to the owner or operator explaining in de25 tail any refusal of a request for revision.
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1 (4) APPROVAL OF RESPONSE ACTION.—The Ad2 ministrator (or State) may issue a notice approving

3 a response action plan or plan modification submit4 ted to the Administrator (or the State, if authorized)

5 unless the Administrator (or State) finds, after the

6 close of the public comment period specified in para7 graph (1), that—

8 (A) based on site-specific factors, the re9 sponse action plan or plan modification does

10 not comply with the response standards under

11 section 6; or

12 (B) the response action plan or plan modi13 fication as submitted, or the facility investiga14 tion on which it is based, is otherwise not in ac15 cordance with the requirements of this Act.

16 Such determination shall be in writing and shall

17 state with specificity the basis for the disapproval.

18 The Administrator (or the State, if authorized) shall

19 publish in the Federal Register (or State equivalent)

20 notice of its decision of approval or disapproval of a

21 response action plan, along with the name of the

22 person from which additional information may be

23 obtained concerning the agency’s decision.

24 (5) MODIFICATION OF PLAN.—The facility

25 owner may submit a proposed modification of the re-
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1 sponse action plan to the Administrator (or State)

2 at any time prior to final certification. Any such

3 modification shall be approved or disapproved in the

4 same manner as the original plan. The Adminis5 trator (or State, if authorized) may require the facil6 ity owner to modify such plan at any time after plan

7 approval and prior to final certification if, based on

8 information which become available to the Adminis9 trator (or State) after the date of plan approval, the

10 Administrator (or the State) determines that the

11 plan does not satisfy the requirements of this Act.

12 (e) REQUIREMENT TO PERFORM ADDITIONAL RE13 SPONSE ACTION.—

14 At any time following notice of the approval of a re15 sponse action plan under subsection (d) for any facility,

16 the Administrator (or a State, if authorized) may require

17 additional response actions at that facility, except that any

18 such additional response may only be required under one

19 of the following circumstances:

20 (1) The Administrator (or the State, if author21 ized) learns of significant new information about

22 risks or threats to public health which was not avail23 able at the time of response action plan approval

24 and which justify substantially different response ac-
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1 tion. Significant new information shall not include

2 revised regulations, guidance, or test methods.

3 (2) In the case of a response action plan which

4 included specific plans for redevelopment, the use of

5 the facility is not substantially in compliance with

6 such redevelopment plans.

7 (3) There has been a failure or refusal to com8 ply with the terms or conditions of the approved re9 sponse action plan.

10 (4) There is a release or threat of release (other

11 than a de minimis release or threat) of any hazard12 ous substance or hazardous constituent which results

13 from activities carried out at the facility and which

14 violates applicable State or Federal law.

15 (5) There is a release or threat of release of

16 any hazardous substance or hazardous constituent

17 which results from the introduction of any such sub18 stance or constituent at the facility by any person

19 after the approval of the response action plan.

20 (6) The owner or operator of the facility has

21 failed or refused to permit any authorized represent22 ative of (including any contractor employed by) the

23 Administrator or the State to enter the facility for

24 purposes of inspection or monitoring.
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1 (7) There have occurred natural resource dam2 ages which are not remedied by the response action

3 plan unless the federal or State natural resource

4 trustee has agreed to the plan without reservation.

5 In addition, additional response action may be re6 quired after the owner or operator of the facility submits

7 a certification to the Administration (or State) of comple8 tion of the response action, if the Administrator (or the

9 State) determines in writing, based on review of records

10 or sampling data following completion of the response ac11 tion, that the response was not substantially completed.

12 (f) REPORTING AND RECORDKEEPING REQUIRE13 MENTS.—

14 (1) REPORTING.—A person conducting a re15 sponse pursuant to this Act shall submit an quar16 terly progress report to the Administrator (or the

17 State, if authorized) for the first 2 years and annual

18 reports thereafter. The final report shall be filed

19 when response action is completed. The reports shall

20 include—

21 (A) a description of the actions which have

22 been taken in accordance with the approved re23 sponse action plan; and
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1 (B) the results of sampling and analysis

2 required by the response action plan generated

3 during the prior year.

4 (2) RECORDKEEPING.—A person conducting a

5 response under this Act shall document the actions

6 taken and maintain, for five years after the person

7 submits a certification under subsection (f) to the

8 appropriate agency, each of the following records—

9 (A) The notification to the Administrator

10 and the State required by subsection (a).

11 (B) The facility investigation report.

12 (C) The response action plan.

13 (D) All data required to be generated by

14 the response action plan, including post-re15 sponse verification data, and analysis of trends.

16 (E) The certification submitted pursuant

17 to subsection (f) demonstrating that the re18 sponse is complete and in compliance with the

19 response action plan.

20 (g) CERTIFICATION.—(1) Upon completion of the re21 sponse, a person conducting a response under this Act

22 shall submit to the Administrator (or the State, if author23 ized), a certification that the response has been completed

24 in accordance with the approved response action plan. The

25 certification shall include the information required under
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1 subsection (f)(1) and all post-response verification data re2 quired by the response action plan. For response action

3 plans that require operation and maintenance or monitor4 ing for a period exceeding 2 years, the certification may

5 be submitted at the completion of any other work required

6 by the approved response action plan. The certification

7 shall be signed by the duly authorized representative of

8 the person conducting the response and an independent

9 registered professional engineer.

10 (2) The Administrator (or State, if authorized) shall

11 approve or disapprove of a response action plan under this

12 Act, or exercise the authority provided in subsection (e)

13 to require additional response actions, within 135 days of

14 submission of the certification provided in paragraph (1)

15 of this subsection. If no action is taken by the Adminis16 trator (or State, if authorized) within the 135 days, the

17 owner/operator conducting the response may seek a court

18 order to require the Environmental Protection Agency (or

19 State, if authorized) to come to a decision.

20 SEC. 6. RESPONSE REQUIREMENTS.

21 Responses conducted pursuant to this Act shall com22 ply with the following requirements—

23 (1) The response action shall achieve a level of

24 remediation that complies with all applicable Fed25 eral, State, and local laws, except that in the case
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1 of conflict between the provisions of any such laws

2 the administrator shall determine the provisions

3 which shall govern for purposes of this Act.

4 (2) 100 percent of the costs of carrying out the

5 response action plan shall be paid by the person car6 rying out the response action or by such person in

7 conjunction with any other potentially responsible

8 parties pursuant to any agreement reached among

9 such parties prior to submission of the plan.

10 (3) The person carrying out the response action

11 (such person in conjunction with any other poten12 tially responsible parties pursuant to an agreement

13 reached among such parties prior to submission of

14 the plan) shall reimburse Administrator (or the

15 State, if authorized) for 100 percent of the reason16 able and necessary documented direct costs incurred

17 by the Administrator (or State, if authorized) in re18 viewing the response action plan and overseeing the

19 response.

20 (4) All response actions shall be conducted by

21 a person or person approved by the Administrator

22 (or the State, if authorized).

23 (5) Responsibility is assigned, and mechanism

24 for assuring funding is provided, for all post-re25 sponse action monitoring, operation and mainte-
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1 nance and long-term response action deemed nec2 essary by the Administrator (or State, if author3 ized).

4 SEC. 7. RELATIONSHIP WITH OTHER LAWS.

5 (a) PRIVATE COST RECOVERY CLAIMS.—Responses

6 conducted in accordance with the terms and conditions of

7 this Act and in accordance with a response action plan

8 approved under this Act shall be deemed consistent with

9 the National Contingency Plan for purposes of private cost

10 recovery claims under the Comprehensive Environmental

11 Response, Compensation and Liability Act of 1980 (42

12 U.S.C. 9601 and following).

13 (b) EFFECT OF RESPONSE.—Performance of a re14 sponse pursuant to this Act shall not constitute an admis15 sion of liability under any Federal, State, or local laws

16 or regulations or in any private action nor shall such per17 formance be admissible as evidence in any citizen’s suit

18 or private action brought under any of the statutes speci19 fied in section 109(b) of this Act.

20 SEC. 8. ENFORCEMENT.

21 Whenever the Administrator (or the State, if author22 ized) determines that any person has failed to comply with

23 the terms or conditions of an approved response action

24 plan, the Administrator (or the State, if authorized) may

25 issue an order requiring compliance with such term or con-
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1 dition. If the person fails to comply with the order, a civil

2 penalty of not more than $25,000 per day of violation may

3 be assessed by the Administrator (or the State, if author4 ized) for the violation of the term or condition of an ap5 proved response action plan identified in the order. In de6 termining the amount of any penalty assessed pursuant

7 to this subsection, the Administrator (or the State, if au8 thorized) shall take into account the nature, cir9 cumstances, extent and gravity of the violation, any good10 faith efforts to comply with the terms and conditions of

11 the response action plan, the degree of culpability or the

12 economic benefit (if any) resulting from the violation, any

13 prior history of such violation, and such other matters as

14 justice may require. No penalty may be assessed under

15 this subsection unless the person accused of the violation

16 is given notice and opportunity for a hearing with respect

17 to the violation.

18 SEC. 9. COVENANT NOT TO SUE.

19 (a) IN GENERAL.—Upon the receipt of a certification

20 under section 5(g) with respect to any facility, unless the

21 Administrator (or State, if authorized) takes action under

22 section 5(e), upon the request of the facility owner or oper23 ator, the Administrator shall enter into a covenant not to

24 sue the facility owner or operator any other potentially re25 sponsible parties participating in the response action with
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1 respect to that facility for civil liability under section 106

2 or 107(a) of the Comprehensive Environmental Response,

3 Compensation and Liability Act or section 7003 of the

4 Solid Waste Disposal Act. Nothing in this Act shall affect

5 the criminal liability of any person under any authority

6 of Federal or State law. The site may be restored to the

7 National Priorities List if the covenant not to sue is vio8 lated by the facility owner or operator.

9 (b) RESERVATIONS.—Each covenant not to sue en10 tered into under this Act shall expressly reserve the Ad11 ministrator’s rights to assert all claims against any party

12 to the covenant except for a claim based on any condition

13 set forth in section 5(e).

14 (c) REMOVAL FROM NPL.—Upon issuance of a cov15 enant not to sue under subsection (b) with respect to any

16 facility, the Administrator shall remove the facility from

17 the National Priorities List under the Comprehensive En18 vironmental Response, Compensation and Liability Act of

19 1980.

20 (d) REFUSAL TO ENTER COVENANT.—The Adminis21 trator may establish guidelines for situations in which it

22 is not in the public interest for the Administrator to enter

23 into a covenant not to sue under this section. In any case

24 in which the Administrator refuses to enter into a cov25 enant not to sue, the Administrator shall issue a written
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1 explanation, based on such guideline, of the reasons for

2 such refusal.

3 SEC. 10. AMENDMENT TO CERCLA.

4 Section 121(d) of the Comprehensive Environmental

5 Response, Compensation and Liability Act of 1980 (42

6 U.S.C. 9601 and following) is amended by adding the fol7 lowing at the end thereof:

8 ‘‘(5) In the case of any response action under

9 the Expedited Hazardous Substances Cleanup Act of

10 1993, the remedial action selected by the President

11 shall achieve a degree of remedial action which the

12 Administrator or the State deems appropriate taking

13 into account (A) the types of activities to be carried

14 out at the facility pursuant to any specific redevelop15 ment plans included in the response action plan ap16 proved under that Act, (B) the level of exposure of

17 individuals to hazardous substances remaining

18 present at the site after completion of the remedial

19 action and (C) the risk of hazardous substance mi20 gration.’’.

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