I
105TH CONGRESS
1ST SESSION
H. R. 2750
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 28, 1997
Mr. BARCIA (for himself and Mr. DOOLEY of California) introduced the follow-
ing bill; which was referred to the Committee on Commerce, and in addi-
tion to the Committee on Transportation and Infrastructure, for a period
to be subsequently determined by the Speaker, in each case for consider-
ation of such provisions as fall within the jurisdiction of the committee
concerned
A BILL
To amend the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Superfund Cleanup
Acceleration and Liability Equity Act’’.
SEC. 2. TABLE OF CONTENTS.
The table of contents is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. References.
and other resources as identified under para-
graph (2). The President shall consider and
use, in selecting final remedies under this Act,
information made available to the President on
actual exposure to hazardous substances or pol-
lutants or contaminants, along with other rel-
evant information.
‘‘(C) PLANTS AND ANIMALS.—In determin-
ing what is protective of plants and animals for
purposes of this section, the Administrator shall
base such determinations on the significance of
impacts from a release or releases of hazardous
substances from a facility to local populations
or communities of plants and animals or
ecosystems. If a species is listed as threatened
or endangered under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.) impacts
to individual plants or animals may be consid-
ered to be impacts to populations of plants or
animals.
‘‘(2) ANTICIPATED USE OF LAND, WATER, AND
OTHER RESOURCES.—
‘‘(A) IN GENERAL.—For purposes of se-
lecting the method or methods of remediation
appropriate for a given facility, the President
shall identify the current and reasonably antici-
pated uses of land, water, and other resources
at and around the facility and the timing of
such uses.
‘‘(B) LAND USE.—Except as provided in
subparagraph (C), in identifying such reason-
ably anticipated uses, the President shall con-
sider relevant factors, which generally shall in-
clude the following:
‘‘(i) Any recommendation of the Com-
munity Assistance Group. With respect to
a Federal facility scheduled for closure or
realignment, the President shall consider
any joint consensus recommendation of the
Community Assistance Group and a rede-
velopment authority which has been estab-
lished for such facility.
‘‘(ii) Views of the affected community
not reflected in clause (i).
‘‘(iii) The current uses of the facility
and surrounding properties, recent develop-
ment patterns in the area where the facil-
ity is located, and population projections
for that area.
‘‘(iv) Federal or State land use des-
ignations, including Federal facilities and
national parks, State ground water or sur-
face water recharge areas established
under a State’s comprehensive protection
plan for ground water or surface water,
and recreational areas.
‘‘(v) The current land use zoning and
future land use plans of the local govern-
ment with land use regulatory authority.
‘‘(vi) Current plans for the facility by
the property owner or owners.
‘‘(vii) The availability of alternative
sources of drinking water.
‘‘(viii) Current or anticipated plans
for livestock watering or irrigation.
‘‘(ix) Current and anticipated plans of
local water suppliers.
‘‘(x) The potential for beneficial use.
‘‘(xi) The proximity of the contamina-
tion to residences, sensitive populations or
ecosystems, natural resources, or areas of
unique historic or cultural significance.
‘‘(xii) Navigational and transportation
uses that may be affected by the facility.
‘‘(xiii) Reasonably anticipated ecologi-
cal services provided by the resource.
‘‘(xiv) Tribal land use designations for
a facility in Indian country (as defined in
18 U.S.C. 1151).
‘‘(xv) Any additional factors the Ad-
ministrator considers appropriate.
Land use assumptions restricting future use can be
used in evaluating remedial alternatives only to the
extent that institutional controls meeting the criteria
of subsection (i) and section 104 have been or will
be adopted in the final remedy.
‘‘(C) GROUNDWATER USE.—In identifying
current and reasonably anticipated future
ground water uses for purposes of this section,
the President shall defer to State determina-
tions regarding such uses where the State has
made such a determination on a facility-specific
basis.
‘‘(D) LIMITATION.—Notwithstanding sub-
paragraph (C), in no case shall the current or
reasonably anticipated future use of ground
water be identified as drinking water for
ground water—
‘‘(i) containing more than 10,000 mil-
ligrams per liter total dissolved solids,
‘‘(ii) that is so contaminated by natu-
rally occurring conditions or by the effects
of broad-scale human activity unrelated to
a specific activity that restoration of drink-
ing water quality is impracticable, or
‘‘(iii) if the potential source of drink-
ing water is physically incapable of yielding
a quantity of 150 gallons per day of water
to a well or spring without adverse envi-
ronmental consequences.
‘‘(E) 
INCLUSION
IN
ADMINISTRATIVE
RECORD.—All information considered by the
President in evaluating current and reasonably
anticipated future land uses under this sub-
section shall be included in the administrative
record under section 113(k).
‘‘(3) SITE-SPECIFIC
RISK
ASSESSMENT.—The
President shall use site-specific risk assessment that
meets the requirements of the principles set forth in
section 127(a) to—
‘‘(A) determine the nature and extent of
risk to human health and the environment;
‘‘(B) assist in establishing remedial objec-
tives for the facility respecting releases or
threatened releases, and in identifying geo-
graphic areas or exposure pathways of concern;
and
‘‘(C) evaluate alternative remedial actions
for the facility to determine their risk reduction
benefits and assist in selecting the remedial ac-
tion for the facility that meets the criteria of
paragraph (1).
‘‘(4) APPROPRIATE REMEDIAL ACTION.—
‘‘(A) REMEDY
EVALUATION.—The Presi-
dent shall identify and select an appropriate
remedy that protects human health and the en-
vironment pursuant to section 121(a) by bal-
ancing the following factors:
‘‘(i) The effectiveness of the remedy,
including its implementability.
‘‘(ii) The long-term reliability of the
remedy, that is, its capability to achieve
long-term protection of human health and
the environment, including consideration of
the preference for treatment of hot spots.
‘‘(iii) Any short-term risk posed by
the implementation of the remedy to the
affected community, to those engaged in
the cleanup effort, and to the environment.
‘‘(iv) The acceptability of the remedy
to the affected community.
‘‘(v) The reasonableness of the cost of
the remedy.
‘‘(B) MONITORING OR OVERSIGHT.—Where
the President selects a final remedy under this
Act that relies on stabilization, containment, or
other engineering controls to limit exposure, in-
stitutional controls, or other measures, the
President shall include enforceable requirements
for the regular monitoring or oversight of the
effectiveness and protectiveness of the remedy.
‘‘(C) HOT SPOTS.—(i) In conducting the
evaluation under subparagraph (A), the Presi-
dent shall prefer a remedy which includes treat-
ment of hot spots.
‘‘(ii) For purposes of this section, the term
‘hot spot’ means a discrete area within a facility
that contains hazardous substances, pollutants
or contaminants that, because of the interaction
of high toxicity, likelihood of mobility, and un-
certainty regarding the reliability of contain-
ment, present a substantial risk to human
health or the environment should exposure
occur. The President shall develop guidelines
for the identification of hot spots. Such guide-
lines shall recommend appropriate field inves-
tigations that will not require extraordinarily
complex or costly measures. The guidelines will
state that the more concentrated and toxic the
area, the less likely the exposure scenarios rea-
sonably considered in determining whether some
form of treatment should be preferred. Treat-
ment alternatives pursuant to this section shall
be selected on a site-specific basis and are not
controlled by section 3004 of the Solid Waste
Disposal Act.
‘‘(iii) In determining an appropriate rem-
edy for hot spots, the President shall consider
the factors under subparagraph (A).
‘‘(iv) Notwithstanding the preference for
treatment of a hot spot, the President may se-
lect a final containment remedy for hot spots at
landfills and mining sites or similar facilities
under the following circumstances:
‘‘(I) The hot spot is small relative to
the overall volume of waste or contamina-
tion being addressed, the hot spot is not
readily identifiable and accessible, and
without the presence of the hot spot con-
tainment would have been selected as the
appropriate remedy under subparagraph
(A) for the larger body of waste or area of
contamination in which the hot spot is lo-
cated.
‘‘(II) The volume and areal extent of
the hot spot is extraordinary compared to
other facilities, and it is highly unlikely
due to the size and other characteristics of
the hot spot that any treatment technology
will be developed that could be imple-
mented at reasonable cost.
Where final containment for a hot spot is selected,
the President shall publish an explanation of the
basis for that decision.’’.
(b) OTHER STANDARDS.—Section 121(d) (42 U.S.C.
9621(d)) is amended—
(1) by striking so much of subsection (d) as
precedes paragraph (3) and inserting the following:
‘‘(d) OTHER STANDARDS.—(1) Except as provided in
paragraph (2), for any facility to which they apply, the
standards set forth in this section shall govern the level
or standard of control for remedies, remedy selection, and
on-site management of hazardous substances in lieu of any
other Federal, State, or local standards where such action
is selected and carried out in compliance with this section.
‘‘(2)(A) Point source discharges or emissions of haz-
ardous substances into the waters of the United States
or the ambient air that result from the conduct of the rem-
edy shall comply with State and Federal standards re-
specting such discharges or emissions.
‘‘(B)(i) Remedial actions selected under this section
or otherwise required or agreed to by the President under
this Act shall attain a degree of cleanup of hazardous sub-
stances, pollutants, and contaminants released into the en-
vironment and of control of further release which assures
protection of human health and the environment.
‘‘(ii) With respect to any hazardous substance, pollut-
ant, or contaminant that will remain onsite, if—
‘‘(I) any standard, requirement, criteria, or lim-
itation under any Federal environmental law, includ-
ing, but not limited to, the Toxic Substances Control
Act, the Safe Drinking Water Act, the Clean Air
Act, the Clean Water Act, the Marine Protection,
Research, and Sanctuaries Act, or the Solid Waste
Disposal Act; or
‘‘(II) any promulgated standard, requirement,
criteria, or limitation under a State environmental
or facility siting law that is more stringent than any
Federal standard, requirement, criteria, or limita-
tion, including each such State standard, require-
ment, criteria, or limitation contained in a program
approved, authorized, or delegated by the Adminis-
trator under a statute cited in subclause (I), and
that has been identified to the President by the
State in a timely manner,
is legally applicable to the conduct or operation of the re-
medial action or to the hazardous substance or pollutant
or contaminant concerned, the remedial action selected
under section 104 or secured under section 106 shall re-
quire, at the completion of the remedial action, a level or
standard of control for such hazardous substance or pol-
lutant or contaminant which at least attains such legally
applicable standard, requirement, criteria, or limitation.
‘‘(C) GROUNDWATER REMEDIES.—(i) Response ac-
tions shall return usable ground waters to beneficial use
wherever practicable, within a timeframe that is reason-
able given the particular circumstances of the site.
‘‘(ii) In selecting remedies for ground water, the
President shall also follow these additional overall objec-
tives for site response actions:
‘‘(I) Prevent exposure to contaminated ground
water above acceptable risk levels.
‘‘(II) Prevent or minimize further migration of
the contaminant plume.
‘‘(III) As needed, prevent or minimize further
migration of contaminants from source materials to
ground water.
‘‘(iii) If the current or reasonably anticipated use (as
determined under subsection (b)(2)) of ground water is
drinking water, final remedies selected under this Act shall
require a level or standard of control which meets maxi-
mum contaminant levels established under the Safe Drink-
ing Water Act at reasonable points of compliance, as ap-
propriate, considering the nature and timing of such use
of the ground water.
‘‘(D) ALTERNATE CONCENTRATION LIMITS.—For
the purposes of this section, a process for establishing al-
ternate concentration limits to those otherwise applicable
for hazardous constituents in groundwater under subpara-
graph (A) may not be used to establish applicable stand-
ards under this paragraph if the process assumes a point
of human exposure beyond the boundary of the facility,
as defined at the conclusion of the remedial investigation
and feasibility study, except where—
‘‘(i) there are known and projected points of
entry of such groundwater into surface water;
‘‘(ii) on the basis of measurements or projec-
tions, there is or will be no statistically significant
increase of such constituents from such groundwater
in such surface water at the point of entry or at any
point where there is reason to believe accumulation
of constituents may occur downstream; and
‘‘(iii) the remedial action includes enforceable
measures that will preclude human exposure to the
contaminated groundwater at any point between the
facility boundary and all known and projected points
of entry of such groundwater into surface water;
then the assumed point of human exposure may be at such
known and projected points of entry.
‘‘(E) Compliance with promulgated State standards
for protection under subparagraph (B) shall not be re-
quired unless such laws and standards are—
‘‘(i) of general applicability,
‘‘(ii) consistently applied, and
‘‘(iii) identified to the President in a timely
fashion.
‘‘(F) LIMITS ON LAND DISPOSAL PROHIBITIONS.—
(i) Except as provided in clause (ii), a State standard, re-
quirement, criteria, or limitation (including any State
siting standard or requirement) which could effectively re-
sult in the statewide prohibition of land disposal of haz-
ardous substances, pollutants, or contaminants shall not
apply.
‘‘(ii) Any State standard, requirement, criteria, or
limitation referred to in clause (i) shall apply where each
of the following conditions is met:
‘‘(I) The State standard, requirement, criteria,
or limitation is of general applicability and was
adopted by formal means.
‘‘(II) The State standard, requirement, criteria,
or limitation was adopted on the basis of hydrologic,
geologic, or other relevant considerations and was
not adopted for the purposes of precluding onsite re-
medial actions or other land disposal for reasons un-
related to protection of human health and the envi-
ronment.
‘‘(III) The State arranges for, and assures pay-
ment of the incremental costs of utilizing, a facility
for disposition of the hazardous substances, pollut-
ants, or contaminants concerned.’’;
(2) by striking so much of paragraph (4) as
precedes subparagraph (A) and inserting the follow-
ing:
‘‘(4) WAIVER.—The President may waive any re-
quirement of subparagraphs (A) through (C) of paragraph
(2) of this subsection if the President finds that—’’; and
(3) by adding at the end the following new
paragraph:
‘‘(5) TECHNICAL IMPRACTICABILITY.—For purposes
of subparagraph (C) of paragraph (4) the President shall
make findings of technical impracticability from an engi-
neering perspective on the basis of projections, modeling,
or other analysis on a site-specific basis (including the
consideration of information presented by responsible par-
ties at such facility) without a requirement that the reme-
dial measure for which a finding of technical imprac-
ticability is under consideration be first constructed or in-
stalled and operated and its performance over time re-
viewed, unless such projection, modeling, or other analysis
is insufficient or inadequate to make such a finding.’’.
(c) EARLY EVALUATION
AND PHASED REMEDIAL
ACTION.—Section 121 (42 U.S.C. 9621) is amended by
adding the following new subsections after subsection (f):
‘‘(g) EARLY EVALUATION AND PHASED REMEDIAL
ACTION.—(1) The President shall consider new proce-
dures for conducting remedial investigations and feasibil-
ity studies in an efficient, cost-effective, and timely man-
ner. Such new procedures shall take into consideration a
results-oriented approach in order to minimize the time
required to conduct such investigations and studies. The
President shall emphasize performance-based standards
where feasible and, where appropriate, provide means to
update the most practicable methods under such perform-
ance-based approaches. The President shall, as appro-
priate, employ a phased approach to site characterization
and remediation in which remedies are arrived at through
a sequence of investigations and actions. Information
gathered in one phase shall be used to inform each succes-
sive phase until final remediation goals are determined
and attained.
‘‘(2) To facilitate efficient and effective site charac-
terization that promotes early evaluation of remedial alter-
natives and to prevent ground water contamination prob-
lems from worsening, the President shall ensure, to the
extent practicable, that hydrogeologic and contaminant-re-
lated information necessary to select final ground water
remedial actions, including findings of technical imprac-
ticability, shall be collected as part of site characterization
activities prior to and during the remedial investigation.
‘‘(h) INSTITUTIONAL CONTROLS.—
‘‘(1) USE
OF
INSTITUTIONAL
CONTROLS.—
Whenever the President selects a final remedial ac-
tion under this Act which relies on restrictions on
the use of land, water, or other resources to achieve
protection of human health and the environment, the
President shall specify the nature of the restrictions
required to achieve such protections, including re-
strictions on the permissible uses of land, prohibi-
tions on specified activities upon the property, re-
strictions on the drilling of drinking water wells or
other use of ground water, or restrictions on the use
of surface water, and may ensure that such restric-
tions are incorporated into a hazardous substance
easement, as provided by section 104(k). In review-
ing remedial action alternatives that would require
the use of such restrictions and providing oppor-
tunity for public comment on those alternatives, the
President shall identify the nature of any institu-
tional controls that would be required to implement
such restrictions, the likely duration of such restric-
tions, and the anticipated costs of acquiring any ap-
propriate hazardous substance easements and en-
forcing the appropriate restrictions.
‘‘(2) REGISTRY.—The President shall maintain
a registry of restrictions on the use of land, water,
or other resources through institutional controls that
are included in final records of decisions as part of
the basis of decision at National Priorities List fa-
cilities.
‘‘(3) REPORT.—The President shall, in con-
sultation with representatives of State and local gov-
ernments, study the use and effectiveness of institu-
tional controls at National Priorities List facilities.
Within 3 years after the date of enactment of this
subsection, and after issuance of a draft report and
opportunity for public comment, the President shall
issue a final report on the use and effectiveness of
institutional controls at National Priorities List fa-
cilities, together with recommendations to improve
efficiency and effectiveness.’’.
SEC. 102. AUTHORITIES FOR INSTITUTIONAL CONTROLS.
Section 104 (42 U.S.C. 9604) is amended by adding
at the end the following:
‘‘(k) HAZARDOUS SUBSTANCE PROPERTY USE.—
‘‘(1) AUTHORITY OF PRESIDENT TO ACQUIRE
EASEMENTS.—In order to prevent exposure to, re-
duce the likelihood of, or otherwise respond to a re-
lease or threatened release of a hazardous substance,
the President may acquire, at fair market value, or
for other consideration as agreed to by the parties,
a hazardous substance easement which restricts, lim-
its, or controls the use of land, water, or other natu-
ral resources, including specifying permissible or im-
permissible uses of land, prohibiting specified activi-
ties upon property, prohibiting the drilling of wells
or use of ground water, or restricting the use of sur-
face water.
‘‘(2) USE OF EASEMENTS.—A hazardous sub-
stance easement and notice of a property use restric-
tion under this subsection may be used wherever in-
stitutional controls have been selected as a compo-
nent of a removal or remedial action in accordance
with this Act and the National Contingency Plan.
Such easements and notices shall not be used in
cases in which institutional controls are not relied
upon in a removal or remedial action. Whenever
such controls are selected as a component of a re-
moval or remedial action, the President shall ensure
that the terms of the controls and, as appropriate,
the easement are specified in all appropriate decision
documents, enforcement orders, and public informa-
tion regarding the site.
‘‘(3) PERSONS
SUBJECT
TO
EASEMENTS.—A
hazardous substance easement shall be enforceable
for 20 years and may be renewed for additional 20-
year periods where necessary to meet the standards
of this section (unless terminated and released as
provided for in this section) against any owner of
the affected property and all persons who subse-
quently acquire interest in the property or rights to
‘‘(7) METHODS OF ACQUIRING EASEMENTS.—
The President may acquire a hazardous substance
easement by purchase or other agreement, by con-
demnation, or by any other means permitted by law.
Compensation for such easement shall be at fair
market value, or for other consideration as agreed to
by the parties, for the interest acquired. The direct
cost of such easements, ensuring adequate public no-
tice of such easements, and otherwise tracking and
maintaining the protections afforded by the ease-
ments shall be considered response costs which are
recoverable under this Act.
‘‘(8) ASSIGNMENT OF EASEMENTS TO PARTIES
OTHER THAN THE PRESIDENT.—
‘‘(A) AUTHORITY TO ASSIGN.—The Presi-
dent may assign an easement acquired under
this subsection to a State or other governmental
entity that has the capability of effectively en-
forcing the easement over the period of time
necessary to achieve the purposes of the ease-
ment. In the case of any assignment, the ease-
ment shall be fully enforceable by the assignee.
Any assignment of such an easement by the
President may be made by following the same
procedures as are used for the transfer of an
interest in real property to a State under sub-
section (j).
‘‘(B) EFFECT OF ASSIGNMENT.—Any in-
terest in property granted to a State or other
governmental entity which restricts, limits, or
controls the use of land, water, or other natural
resources in order to prevent exposure to, re-
duce the likelihood of, or otherwise respond to,
a release or threatened release of a hazardous
substance, and which is expressly designated in
writing as a hazardous substance easement
within the meaning of this paragraph, shall cre-
ate the same rights, have the same legal effect,
and be enforceable in the same manner as a
hazardous substance easement held by the
President regardless of whether the interest in
property is otherwise denominated as an ease-
ment, covenant, or any other form of property
right.
‘‘(9) PUBLIC NOTICE.—Not later than 180 days
after the date of the enactment of this subsection,
the President shall issue regulations regarding the
procedures to be used for public notice of proposed
property use restrictions. Such regulations shall en-
sure that before acquiring a hazardous substance
easement, and before recording any notice of such
easement, the President will give notice and an op-
portunity to comment to the owner of the affected
property, all other persons with recorded interests in
the property, any lessees or other authorized occu-
pants of the property known to the President, the
State and any municipalities in which the property
is located, any relevant community assistance group
established under section 117, the affected commu-
nity, and the general public.
‘‘(10) TERMINATION OF EASEMENTS.—An ease-
ment acquired under this subsection shall remain in
force until it expires by its terms or until the holder
of the easement executes and records a termination
and release in accordance with the terms of the ease-
ment and approved by the Administrator of the En-
vironmental Protection Agency or the relevant as-
signee. Such termination shall be recorded in the
same manner as the easement.
‘‘(11) ENFORCEMENT.—
‘‘(A) EFFECT OF VIOLATIONS.—Violation
of any restriction, limitation, or control imposed
under a hazardous substance easement shall
have the same effect as failure to comply with
an order issued under section 106 and relief
may be sought either in enforcement actions
under section 106(b)(1), section 120(g), or sec-
tion 127(e) or in citizens suits under section
310. No citizens suit under section 310 to en-
force such a notice may be commenced if the
holder of the easement has commenced and is
diligently prosecuting an action in court to en-
force the easement.
‘‘(B) 
ENFORCEMENT
ACTIONS.—The
President may take appropriate enforcement ac-
tions to ensure compliance with the terms of
the easement whenever the Administrator of the
Environmental Protection Agency determines
that the terms set forth in the easement are
being violated. If the easement has been as-
signed to a party other than the President and
that party has not taken appropriate enforce-
ment actions, the President may notify the as-
signee of the violation. If the party does not
take appropriate enforcement actions within 30
days of such notification, or sooner in the case
of an imminent hazard, the President may initi-
ate such enforcement actions.
‘‘(12) APPLICABILITY OF OTHER PROVISIONS.—
Holding a hazardous substance easement shall not
subject either the holder thereof or the owner of the
affected property to liability under section 107. Any
such easement acquired by the President shall not
be subject to the requirements of subsection (j) or
section 120(h).’’.
SEC. 103. OBJECTIVE RISK ASSESSMENT STANDARDS.
Title I (42 U.S.C. 9621 et seq.) is amended by adding
the following new section at the end thereof:
‘‘SEC. 127. OBJECTIVE RISK ASSESSMENT PRINCIPLES,
GUIDELINES, AND REVIEWS.
‘‘Risk assessments and characterizations conducted
under this Act shall—
‘‘(1) provide scientifically objective, informative,
and understandable assessments, estimates, and
characterizations which neither minimize nor exag-
gerate the nature and magnitude of current or po-
tential future risks to human health and the envi-
ronment;
‘‘(2) distinguish scientific findings from other
considerations; and
‘‘(3) be based on the best, relevant, and current
scientific and technical information, including avail-
able or reasonably obtainable site-specific and all
other relevant information made available to the
President.’’.
SEC. 104. HAZARD RANKING SYSTEM.
Section 105(c) (42 U.S.C. 9605(c)) is amended by
inserting after paragraph (4) the following new para-
graphs:
‘‘(5) RISK PRIORITIZATION.—In setting prior-
ities under subsection (a)(8), the President shall
place highest priority on facilities with releases of
hazardous substances which result in actual ongoing
human exposures at levels of public health concern
or demonstrated adverse health effects as identified
in a health assessment conducted by the Agency for
Toxic Substances and Disease Registry or are rea-
sonably anticipated based on currently known facts.
‘‘(6) PRIOR
RESPONSE
ACTION.—Any evalua-
tion under this section shall take into account all
prior response actions taken at the facility.’’.
SEC. 105. REMOVAL ACTIONS.
Section 104(c)(1) (42 U.S.C. 9604(c)(1)) is amend-
ed—
(1) by striking ‘‘consistent with the remedial
action to be taken’’ and inserting ‘‘not inconsistent
with any remedial action that has been selected or
is anticipated at the time of the removal action,’’;
(2) by striking ‘‘$2,000,000’’ and inserting
‘‘$3,000,000’’; and
(3) by striking ‘‘12 months’’ and inserting ‘‘two
years’’.
SEC. 106. CONSISTENT APPLICATION AMONG REGIONAL
OFFICES.
Section 115 (42 U.S.C. 9615) is amended—
(1) by striking ‘‘The President’’ and inserting
‘‘(a) PRESIDENTIAL RULEMAKING AND DELEGATION
AUTHORITY.—The President’’; and
(2) by inserting at the end thereof the following
new subsection:
‘‘(b) CONSISTENT APPLICATION AMONG REGIONAL
OFFICES.—Each Regional Administrator should imple-
ment, execute, and enforce this Act and regulations, guid-
ance, and policies established in accordance with this Act
by (1) the President (or by the Administrator pursuant
to a delegation from the President), or (2) the Adminis-
trator (or by the Deputy Administrator or an Assistant
Administrator pursuant to a delegation from the Adminis-
trator).’’.
SEC. 107. EFFECTIVE DATE AND TRANSITION RULES.
(a) EFFECTIVE DATE.—The amendments made by
this title shall apply to any final remedial action selected
under the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 for which the Record
of Decision (hereinafter in this section referred to as the
‘‘ROD’’) was signed, or the consent decree was lodged,
after October 28, 1997.
(b) REMEDY UPDATES.—The Environmental Protec-
tion Agency shall maintain a process to update remedies
for which design, construction, or operation and mainte-
nance activities are ongoing as of the date of the enact-
ment of this Act in order to bring past decisions into line
with the current state of knowledge with respect to reme-
diation science, technology and engineering, best available
facility data, and most recent Environmental Protection
Agency policy and guidance. In doing so, the Environ-
mental Protection Agency shall improve the cost-effective-
ness of site remediation while ensuring reliable short- and
long-term protection of human health and the environ-
ment.
TITLE II—LIABILITY AND
ALLOCATION
SEC. 201. LIMITATIONS TO LIABILITY FOR RESPONSE
COSTS.
(a) LIMITATIONS ON LIABILITY.—Section 107(a) (42
U.S.C. 9607(a)) is amended as follows:
(1) In paragraph (1), by striking ‘‘and’’ and in-
serting ‘‘or’’.
(2) In paragraph (3), by striking ‘‘person,’’ and
inserting ‘‘person or’’.
(3) In paragraph (4)(B)—
(A) by striking ‘‘other’’ both places it ap-
pears; and
(B) by inserting ‘‘, other than the United
States, a State, or an Indian tribe,’’ before the
phrase ‘‘consistent with the national contin-
gency plan’’.
(4) In paragraph (4), by striking ‘‘by such per-
son,’’ and all that follows through ‘‘shall be liable
for—’’ and inserting in lieu thereof the following:
‘‘by such person—
from which there is a release, or a threatened release, that
causes the incurrence of response costs, of a hazardous
substance, shall be liable for—’’.
(5) By designating the text beginning with
‘‘The amounts recoverable’’ and ending with ‘‘this
subsection commences.’’ as paragraph (5) and align-
ing the margin of such text with paragraph (4).
(6) By adding the following new paragraphs
after paragraph (5):
‘‘(6) LIABILITY
EXEMPTIONS.—Notwithstand-
ing paragraphs (1) through (4) of this subsection, a
person who does not impede the performance of a
response action or natural resource restoration at a
facility listed on the National Priorities List shall
not be liable:
‘‘(A) SMALL BUSINESS EXEMPTIONS.—
‘‘(i) IN
GENERAL.—With respect to
response costs incurred after October 28,
1997, for activity prior to such date, to the
extent liability at such facility is based
solely on paragraph (3) or (4) of this sub-
section and the person is a business that,
during the taxable year preceding the date
of transmittal of notification that the busi-
ness is a potentially responsible party,
had—
‘‘(I) full- and part-time employ-
ees whose combined time was equiva-
lent to 30 or fewer full-time employees
or for that taxable year reported
$3,000,000 or less in annual gross
revenues; or
‘‘(II) full- and part-time employ-
ees whose combined time was equiva-
lent to 60 or fewer full-time employees
or for that taxable year reported
$5,000,000 or less in annual gross
revenues, if the Administrator decides
in the Administrator’s discretion to
raise the threshold under subclause
(I) on a site-specific and party-specific
basis.
‘‘(ii) EXEMPTION
FOR
MUNICIPAL
SOLID WASTE.—With respect to costs and
activity described in clause (i), to the ex-
tent liability at such facility is based solely
on paragraph (3) or (4) of this subsection
and the person arranged for disposal,
treatment, or transport for disposal or
treatment, or accepted for transport for
disposal or treatment of only municipal
solid waste or sewage sludge owned or pos-
sessed by such person and the person is a
business that, during the taxable year pre-
ceding the date of transmittal of notifica-
tion that the business is a potentially re-
sponsible party, had full- and part-time
employees whose combined time was equiv-
alent to 100 or fewer full-time employees.
‘‘(iii) 
LIMITATION.—This 
subpara-
graph shall not apply to a person otherwise
covered if the Administrator has deter-
mined that—
‘‘(I) the hazardous substances
generated or transported by the small
business contributed or could contrib-
ute significantly to the response costs
at the facility; or
‘‘(II) the small business has
failed to substantially comply with in-
formation requests or administrative
subpoenas 
issued 
by 
the 
United
States.
‘‘(iv) EFFECT
ON
LIABILITY.—This
subparagraph shall have no effect on the
liability of any other person.
‘‘(B) DE MICROMIS EXEMPTION.—With re-
spect to response costs incurred after October
28, 1997, for activity prior to such date, to the
extent liability at such facility is based solely on
paragraph (3) or (4) of this subsection, and the
person can demonstrate that it arranged for
disposal or treatment, or transport for disposal
or treatment or accepted for transport for dis-
posal or treatment, 110 gallons or less of liquid
materials containing hazardous substances or
pollutants or contaminants or less, 200 pounds
or less of solid materials containing hazardous
substances or pollutants or contaminants, or
such greater or lesser amount as the Adminis-
trator may determine by regulation, except
where—
‘‘(i) the Administrator has determined
that such material contributed or could
contribute significantly to the costs of re-
sponse at the facility, or
‘‘(ii) the person has failed to substan-
tially comply with information requests or
administrative subpoenas by the United
States.
‘‘(C) BONA
FIDE
PROSPECTIVE
PUR-
CHASER EXEMPTION.—To the extent liability at
such facility is based solely on paragraph (1) of
this subsection for a release or threat of release
from the facility, and the person is a bona fide
prospective purchaser of the facility. Not later
than 18 months after the date of the enactment
of the Superfund Cleanup Acceleration and Li-
ability Equity Act, the Administrator shall issue
guidelines explaining criteria by which a person
may qualify as a bona fide prospective pur-
chaser. Such guidelines shall be made readily
available to the public.
‘‘(D) INHERITANCE OR BEQUEST EXEMP-
TION.—To the extent liability at such facility is
based solely on the person’s status as owner
under paragraph (1) for a release or threat of
release from the facility, and the person ac-
quired the facility by inheritance or bequest if
the person—
‘‘(i) acquired the real property on
which the facility concerned is located after
disposal or placement of the hazardous
substance took place;
‘‘(ii) did not cause or contribute to the
release or threat of release; and
‘‘(iii) exercised due care with respect
to the hazardous substance concerned, in-
cluding precautions against foreseeable
acts of third parties, taking into consider-
ation the characteristics of such hazardous
substance, in light of all relevant facts and
circumstances.
‘‘(E) EXEMPTION
FOR
OWNERSHIP
OF
RIGHTS-OF-WAY OR GRANTING OF BUSINESS LI-
CENSES.—To the extent the liability of a Fed-
eral or State governmental entity or municipal-
ity at such facility is based solely on its—
‘‘(i) ownership of a road, street, or
other right of way or public transportation
route (other than railroad rights of way
and railroad property) over which hazard-
ous substances are transported; or
‘‘(ii) granting of a license or permit to
conduct business.
‘‘(F) EXEMPTION FOR RESPONSES TO NAT-
URAL DISASTERS.—To the extent the liability of
a department, agency, or instrumentality of the
United States at such facility is based on ac-
tions of such department, agency, or instrumen-
tality taken in response to a natural disaster
pursuant to the Act of August 18, 1941 (33
U.S.C. 701n) or The Robert T. Stafford Disas-
ter Relief and Emergency Act (42 U.S.C. 5121
and following).
‘‘(7) LIMITATION
RELATING
TO
MUNICIPAL
SOLID WASTE AND SEWAGE SLUDGE.—
‘‘(1) IN GENERAL.—Notwithstanding para-
graphs (1) through (4), with respect to re-
sponse costs incurred after October 28, 1997,
for activity prior to such date, a person shall
not be liable for more than 10 percent of total
response costs at a facility listed on the Na-
tional Priorities List, in aggregate, to the ex-
tent the person is liable solely under paragraph
(3) or (4) of this subsection, and the arrange-
ment for disposal, treatment, or transport for
disposal or treatment, or the acceptance for
transport for disposal or treatment, involved
only municipal solid waste or sewage sludge. In
any case in which more than one person at a
facility comes within the coverage of this para-
graph, the 10 percent limitation on liability
shall apply to the aggregate liability of all such
persons. Such limitation on liability shall apply
only if either the acts or omissions giving rise
to liability occurred before October 28, 1997.
‘‘(2) LIMITATIONS.—
‘‘(A) DEFINITIONS.—In this paragraph:
‘‘(i) 
LARGE
MUNICIPALITY.—The
term ‘large municipality’ means a munici-
pality with a population of 100,000 or
more according to the 1990 census.
‘‘(ii) 
SMALL
MUNICIPALITY.—The
term ‘small municipality’ means a munici-
pality with a population of less than
100,000 according to the 1990 census.
‘‘(B) AGGREGATE
LIABILITY
OF
SMALL
MUNICIPALITIES.—With respect to a facility
that received municipal solid waste (in this
paragraph referred to as a codisposal landfill),
that was proposed for listing on the National
Priorities List before October 28, 1997, that is
owned or operated only by small municipalities,
and that is not subject to the criteria for solid
waste landfills published under subtitle D of the
Solid Waste Disposal Act (42 U.S.C. 6941 et
seq.) at part 258 of title 40, Code of Federal
Regulations (or a successor regulation), the ag-
gregate liability of all small municipalities for
response costs incurred on or after October 28,
1997, shall be the lesser of—
‘‘(i) 10 percent of the total amount of
response costs at the facility; or
‘‘(ii) the costs of compliance with the
requirements of subtitle D of the Solid
Waste Disposal Act (42 U.S.C. 6941 et
seq.) for the facility (as if the facility had
continued to accept municipal solid waste
through January 1, 1997);.
‘‘(C) AGGREGATE
LIABILITY
OF
LARGE
MUNICIPALITIES.—With respect to a codisposal
landfill that was proposed for listing on the Na-
tional Priorities List before October 28, 1997,
that is owned or operated only by large munici-
palities, and that is not subject to the criteria
for solid waste landfills published under subtitle
D of the Solid Waste Disposal Act (42 U.S.C.
6941 et seq.) at part 258 of title 40, Code of
Federal Regulations (or a successor regulation),
the aggregate liability of all large municipalities
for response costs incurred on or after October
28, 1997, shall be the lesser of—
‘‘(i) 20 percent of the proportion of
the total amount of response costs at the
facility; or
‘‘(ii) the costs of compliance with the
requirements of subtitle D of the Solid
Waste Disposal Act (42 U.S.C. 6941 et
seq.) for the facility (as if the facility had
continued to accept municipal solid waste
through January 1, 1997).
‘‘(8) LIMITATION RELATING TO CERTAIN TAX-
EXEMPT
ORGANIZATIONS.—(A) 
Notwithstanding
paragraphs (1) through (4) of this subsection, with
respect to response costs incurred after October 28,
1997, the liability of a person who does not impede
the performance of response actions or natural re-
source restoration with respect to a release or
threatened release from a vessel or facility listed on
the National Priorities List shall be limited to the
lesser of the fair market value of the vessel or facil-
ity or the actual proceeds of the sale of the vessel
or facility received by the person, to the extent such
liability is based solely on the person’s status under
paragraph (1) as owner of the vessel or facility if the
person—
‘‘(i) holding title, either outright or in
trust, to the vessel or facility is an organization
described in section 501(c)(3) of the Internal
Revenue Code of 1986 and exempt from tax
under section 501(a) of such Code and holds
such title as a result of a charitable donation
that qualifies under sections 170, 2055, or
2522 of such Code;
‘‘(ii) exercised due care with respect to the
hazardous substance concerned, including pre-
cautions against foreseeable acts of third par-
ties, taking into consideration the characteris-
tics of such hazardous substance, in light of all
relevant facts and circumstances;
‘‘(iii) did not cause or contribute to the re-
lease or threat of release; and
‘‘(iv) acquired the real property on which
the facility concerned is located, or acquired the
vessel, after disposal or placement of the haz-
ardous substance took place.
‘‘(B) At any facility to which the provisions of
this paragraph apply, the owner or operator of the
vessel or facility within the meaning of paragraph
(1) shall include any person who owned or operated
the facility immediately prior to the person described
in subparagraph (A).
‘‘(9) CONTIGUOUS PROPERTY.—A person who
owns or operates real property that is contiguous to
or otherwise situated with respect to real property
on which there has been a release of a hazardous
substance and that is or may be contaminated by
the release shall not be considered an owner or oper-
ator of a facility under paragraph (1)(A) solely by
reason of such contamination if such person estab-
lishes by a preponderance of the evidence that—
‘‘(A) such person exercised due care with
respect to the hazardous substance, taking into
consideration the characteristics of such haz-
ardous substance, in light of all relevant facts
and circumstances;
‘‘(B) such person took precautions against
foreseeable acts or omissions that resulted in
the release and the consequences that could
foreseeably result from such acts or omissions;
‘‘(C) such person did not cause or contrib-
ute to the release; and
‘‘(D) such person provides full cooperation,
assistance, and facility access to persons au-
thorized to conduct response actions at the fa-
cility, including the cooperation and access nec-
essary for the installation, integrity, operation,
and maintenance of any complete or partial re-
sponse action at the facility.
The President may issue assurances of no enforce-
ment action under this Act to such person and may
grant such person protection against cost recovery
and 
contribution 
actions 
pursuant 
to 
section
113(f).’’.
(b) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—
(1) IN GENERAL.—Section 107 is amended by
inserting after subsection (m) the following new sub-
section:
‘‘(n) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—(1) In any case in which there are unrecovered
response costs at a facility for which an owner of the facil-
ity is not liable by reason of subsection (a)(6)(C), and the
conditions described in paragraph (2) are met, the United
States shall have a lien upon such facility for such unre-
covered costs. Such lien—
‘‘(A) shall not exceed the increase in fair mar-
ket value of the property attributable to the response
action at the time of a subsequent sale or other dis-
position of property;
‘‘(B) shall arise at the time costs are first in-
curred by the United States with respect to a re-
sponse action at the facility;
‘‘(C) shall be subject to the requirements for
notice and validity established in paragraph (3) of
subsection (l); and
‘‘(D) shall continue until the earlier of satisfac-
tion of the lien or recovery of all response costs in-
curred at the facility.
‘‘(2) The conditions referred to in paragraph (1) are
the following:
‘‘(A) A response action for which there are un-
recovered costs is carried out at the facility.
‘‘(B) Such response action increases the fair
market value of the facility above the fair market
value of the facility that existed within six months
before the response action was taken.’’.
‘‘(3) No lien under this section shall arise (A) with
respect to property for which the property owner preceding
the first bona fide prospective purchaser is not a liable
party or has resolved its liability under this Act, or (B)
where an audit or inquiry gives the bona fide prospective
purchaser no knowledge or reason to know of the release
of hazardous substances.’’.
(2) 
EFFECTIVE
DATE
AND
TRANSITION
RULES.—The amendments made by this sub-
section—
(A) shall take effect with respect to an ac-
tion under section 106, 107, or 113 of the
Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 (42 U.S.C.
9606, 9607, and 9613) that becomes final on or
after October 28, 1997; and
(B) shall not apply to an action brought by
any person under section 107 or 113 of that
Act for costs incurred by the person before Oc-
tober 28, 1997.
(3) ILLEGAL ACTIVITIES.—Paragraphs (6), (7),
(8), and (9) of section 107(a) of the Comprehensive
Environmental Response, Compensation, and Liabil-
ity Act of 1980 (42 U.S.C. 9607), as added by this
section, shall not apply to any person whose liability
for response costs is based on any act, omission, or
status that is determined by a court or administra-
tive body of competent jurisdiction, within the appli-
cable statute of limitations, to have been in violation
of any Federal or State law pertaining to the treat-
ment, storage, disposal, or handling of hazardous
substances if the violation pertains to a hazardous
substance, the release or threat of release of which
caused the incurrence of response costs at the vessel
or facility concerned.
SEC. 202. EXPEDITED FINAL SETTLEMENTS.
Section 122 is amended as follows:
(1) Subsection (g) is amended by striking ‘‘(g)’’
and all that follows through the end of subparagraph
(A) of paragraph (1) and inserting in lieu thereof
the following:
‘‘(g) EXPEDITED FINAL SETTLEMENT.—
‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET-
TLEMENT.—(A) The President shall, as promptly as
possible, offer to reach a final administrative or judi-
cial settlement with a potentially responsible party
who meets one or more of the following conditions
for eligibility for an expedited settlement:
‘‘(i) The potentially responsible party’s in-
dividual contribution of hazardous substances
at the facility is de minimis. The contribution
of hazardous substance to a facility by a poten-
tially responsible party is de minimis if both of
the following conditions are met:
‘‘(I) The potentially responsible par-
ty’s volumetric contribution of materials
containing hazardous substances is mini-
mal in comparison to the total volumetric
contributions of materials containing haz-
ardous substances at the facility; such indi-
vidual contribution is presumed to be mini-
mal if it is 1 percent or less of the total
volumetric contribution at the facility.
‘‘(II) The potentially responsible par-
ty’s hazardous substances do not present
toxic or other hazardous effects that would
result in an allocable share of greater than
1 percent.’’.
(2) Subsection (g) is further amended—
(A) by redesignating clauses (i), (ii), and
(iii) of subparagraph (B) of paragraph (1) as
subclauses (I), (II), and (III), respectively;
(B) by redesignating subparagraph (B) of
paragraph (1) as clause (ii);
(C) in the text of clause (ii) (as so redesig-
nated), by striking ‘‘subparagraph (B)’’ and in-
serting ‘‘clause (ii)’’; and
(D) by adding at the end of paragraph (1)
the following:
‘‘(iii) The potentially responsible party is a
business that, during the taxable year preceding
the date of transmittal of notification that the
business is a potentially responsible party, had
full- and part-time employees whose combined
time was equivalent to 30 or fewer full-time em-
ployees or for that taxable year reported
$3,000,000 or less in annual gross revenues.
‘‘(B) The President may offer to reach a final
administrative or judicial settlement with a poten-
tially responsible party whose individual contribution
of hazardous substances at the facility is small. The
contribution of hazardous substance to a facility by
a potentially responsible party is small if both of the
following conditions are met:
‘‘(i) The potentially responsible party’s vol-
umetric contribution of materials containing
hazardous substances is small in comparison to
the total volumetric contributions of materials
containing hazardous substances at the facility;
such individual contribution is presumed to be
small if it is more than 1 percent but less than
5 percent of the total volumetric contribution at
the facility, unless the Administrator identifies
a different threshold based on site-specific fac-
tors.
‘‘(ii) The potentially responsible party’s
hazardous substances do not present toxic or
other hazardous effects that would result in an
allocable share of more than 1 percent and less
than 5 percent.’’.
(3) Paragraph (2) of subsection (g) is amended
to read as follows:
‘‘(2) BASIS OF DETERMINATION.—Any person
who enters into a settlement pursuant to this sub-
section shall provide any information requested by
the President or by an allocator in accordance with
section 128(i)(1) or section 104(e) of this Act. The
determination of whether a person is eligible for an
expedited settlement shall be made on the basis of
all information available to the President at the time
the determination is made. Neither the President’s
determination as to the eligibility of a party that is
not a department, agency, or instrumentality of the
United States for settlement pursuant to this sec-
tion, nor the terms of the final settlement with such
a party, shall be subject to judicial review. If the
President determines that a party is not eligible for
a settlement pursuant to this section, the President
shall explain the basis for that determination in
writing to any person who requests such a settle-
ment.’’.
SEC. 203. ALLOCATION PROCEDURES.
Title I (42 U.S.C. 9621 et seq.) is further amended
by adding at the end the following new section:
‘‘SEC. 128. ALLOCATION OF LIABILITY FOR CERTAIN FA-
CILITIES.
‘‘(a) ALLOCATIONS OF LIABILITY.—
‘‘(1) DEFINITIONS.—In this section:
‘‘(A) ALLOCATED SHARE.—The term ‘allo-
cated share’ means the percentage of liability
assigned to a potentially responsible party by
the allocator in an allocation report.
‘‘(B) ALLOCATION PARTY.—(i) The term
‘allocation party’ means a party, named on a
list of parties issued by an allocator, that will
be subject to the allocation process under this
section.
‘‘(ii) Any settling party (including a party
eligible for an expedited settlement pursuant to
section 122(g)) or any party eligible for an ex-
emption or limitation pursuant to section
107(a)(6) shall be considered an allocation
party only for purposes of responding to re-
quests for information from the allocator and
receiving an allocated share in order to deter-
mine the appropriate orphan share pursuant to
subsection (h)(4).
‘‘(C) ALLOCATOR.—The term ‘allocator’
means an allocator retained to conduct an allo-
cation for a facility under this section.
‘‘(D) MANDATORY
ALLOCATION
FACIL-
ITY.—The term ‘mandatory allocation facility’
means—
‘‘(i) a non-federally owned vessel or
facility listed on the National Priorities
List with respect to which response costs
are incurred after October 28, 1997, and
at which there are 2 or more potentially
responsible persons (including 1 or more
persons that are qualified for an exemption
under this Act, if at least 1 potentially re-
sponsible person is viable and not entitled
to such an exemption; and
‘‘(ii) a federally owned vessel or facil-
ity listed on the National Priorities List
with respect to which response costs are
incurred after October 28, 1997, and with
respect to which 1 or more potentially re-
sponsible parties (other that a department,
agency, or instrumentality of the United
States) are liable or potentially liable if at
least 1 potentially liable party is viable and
not entitled to an exemption under this
Act.
‘‘(E) ORPHAN SHARE.—The term ‘orphan
share’ means the total of the allocated shares
determined by the allocator under subsection
(h)(4).
‘‘(2) MANDATORY
ALLOCATIONS.—For each
mandatory allocation facility involving 2 or more po-
tentially responsible parties (including 1 or more po-
tentially responsible parties that are qualified for an
exemption under this Act), the Administrator shall
conduct the allocation process under this section.
‘‘(3) REQUESTED ALLOCATIONS.—For a facility
(other than a mandatory allocation facility) involving
2 or more potentially responsible parties, the Admin-
istrator may conduct the allocation process under
this section if the allocation is requested in writing
by a potentially responsible party that has—
‘‘(A) incurred response costs with respect
to a response action; or
‘‘(B) resolved any liability to the United
States with respect to a response action in
order to assist in allocating shares among po-
tentially responsible parties.
‘‘(4) ORPHAN SHARE.—An allocation performed
at a vessel or facility identified under paragraph (3)
shall not require payment of an orphan share under
subsection (h).
‘‘(5) LIMITATION
OF
CERTAIN
FACILITIES.—
For any response costs within the scope of allocation
as defined in paragraph (6) which are subject to a
judicial or administrative consent decree or unilat-
eral administrative order under section 106 which
has been issued, signed, lodged, or entered as of Oc-
tober 28, 1997, the following procedures shall apply:
‘‘(A) Any person or group of persons sub-
ject to the consent decree or unilateral adminis-
trative order shall select, with the approval of
the Administrator, a neutral third party, who
shall make the determination in subparagraph
(B).
‘‘(B) Within 14 days after the selection of
the neutral third party, the person or group of
persons shall submit a written presentation
which shows that there is at least a $1,000,000
orphan share of the costs yet to be incurred
with regard to the response action which is sub-
ject to the consent decree or unilateral adminis-
trative order.
‘‘(C) Within 21 days after the receipt of
the written submission, the neutral third party
shall make a determination as to whether there
is a reasonable belief, based on the information
submitted, that the requirement of subpara-
graph (B) has been met.
‘‘(D) If the requirement of subparagraph
(B) is met, an allocation shall be performed for
the sole purpose of determining the appropriate
orphan share under subsection (h)(4).
‘‘(E) The determination by the neutral
third party is not reviewable and the cost of
allocator’s report under subsection (h) or (m),
whichever is later.
‘‘(2) STAY OF EXISTING ACTIONS.—If a claim
for response costs pursuant to section 107 or 113 of
this Act or an action seeking recovery of response
costs in connection with a response action for which
an allocation is required under subsection (a)(1) or
(a)(2), or for which the Administrator has initiated
an allocation under subsection (a)(3), is pending—
‘‘(A) upon the date of enactment of the
Superfund Cleanup Acceleration and Liability
Equity Act, or
‘‘(B) upon initiation of an allocation,
the action or claim shall be stayed until 90 days
after the issuance of the allocator’s report under
subsection (h) or (m), unless the court determines
that a stay will result in manifest injustice.
‘‘(3) STATUTE OF LIMITATIONS.—Any applica-
ble limitations period with respect to a cause of ac-
tion subject to paragraph (1) shall be tolled from the
earlier of the following until 180 days after the issu-
ance of the allocator’s report under subsection (h) or
(m):
‘‘(A) The date of listing of the facility on
the National Priorities List.
‘‘(B) The commencement of the allocation
process pursuant to this section.
‘‘(c) COMMENCEMENT OF ALLOCATION.—
‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa-
cilities subject to this section, the Administrator
shall, as soon as practicable, but not later than 60
days after the commencement of the remedial inves-
tigation, initiate a thorough investigation and search
for all potentially responsible parties, using the au-
thorities under section 104. Any person may submit
information to the Administrator concerning any po-
tentially responsible party at the facility, and the
Administrator shall consider such information in
carrying out the responsible party search.
‘‘(2) NOTIFICATION OF DE MINIMIS PARTIES.—
As soon as practicable after receipt of sufficient in-
formation, but not more than 12 months after the
commencement of the remedial investigation, the
Administrator shall take each of the following ac-
tions:
‘‘(A) The Administrator shall notify any
potentially responsible party who the Adminis-
trator determines is eligible for an expedited
final settlement in accordance with section
122(g)(1)(A) of its eligibility, based on informa-
tion available to the Administrator at the time
the determination is made. Any such informa-
tion that is not confidential shall, to the extent
practicable, be made available by the Adminis-
trator to the party at the time of the settlement
offer.
‘‘(B) The Administrator shall submit a
written settlement offer to each party notified
under subparagraph (A) no later than 60 days
after such notification. The Administrator shall,
at the same time, make available to such party
upon request any nonconfidential information
related to the party’s settlement upon which the
Administrator based the settlement offer. If the
settlement offer is based in whole or in part on
confidential information, the Administrator
shall so advise such party.
‘‘(3) PRELIMINARY
NOTICE
TO
OTHER
PAR-
TIES.—As soon as practicable after receipt of suffi-
cient information, but not later than 18 months
after commencement of the remedial investigation,
the Administrator shall—
‘‘(A) notify any party not previously noti-
fied under paragraph (2) who the Adminis-
trator determines is eligible for an expedited
final settlement in accordance with section
122(g)(1)(A) of its eligibility, based on informa-
tion available to the Administrator at the time
the determination is made;
‘‘(B) issue a list of all potentially respon-
sible parties preliminarily identified by the Ad-
ministrator to all such parties;
‘‘(C) notify the public, in accordance with
section 117(d), of the list of potentially respon-
sible parties identified pursuant to subpara-
graphs (A) and (B) by the Administrator; and
‘‘(D) make available all responses to the
Administrator’s information requests, as well as
other relevant information concerning the facil-
ity and potentially responsible parties, to the
notified parties, to the extent it is available to
the Administrator.
The Administrator shall not make available any
privileged or confidential information, except as oth-
erwise authorized by law. The Administrator shall
take the actions specified in this paragraph within 9
months after the date of enactment of this section
for all facilities eligible for allocation under sub-
section (a)(1) or (a)(2) for which the responsible
party search required by a paragraph (1) was sub-
stantially complete prior to the date of the enact-
ment of this section.
‘‘(4) STATUS OF PARTIES.—At the time of pro-
posing the list of potentially responsible parties
under paragraph (3), the Administrator shall—
‘‘(A) identify parties that are eligible for
expedited 
settlement 
pursuant 
to 
section
122(g);
‘‘(B) identify parties who are not eligible
for such expedited settlement; or
‘‘(C) determine that there is insufficient
information to ascertain whether or not the
party is eligible for such expedited settlement.
‘‘(5) NOMINATION
OF
PARTIES.—(A) For 60
days after information has been made available pur-
suant to paragraph (3), the parties identified by the
Administrator and members of the affected commu-
nity shall have the opportunity to identify and nomi-
nate additional potentially responsible parties or oth-
erwise provide information relevant to the facility or
such potentially responsible parties. This period may
be extended by the Administrator for an additional
30 days upon request of any person.
‘‘(B) Any proposal for the addition of any po-
tentially responsible party with respect to a facility
shall be supported by a statement setting forth the
basis in law and fact for the nominating party’s be-
lief that the additional nominated party is poten-
tially liable under this Act and by full disclosure to
the Administrator and to the nominated party at the
same time of all available information concerning
that party’s liability under this Act and that party’s
contribution of hazardous substances to the facility.
The nominated party may submit to the Adminis-
trator information relating to its inclusion as an ad-
ditional potentially responsible party within 45 days
of the receipt of such information.
‘‘(6) LIST
OF
ALLOCATION
PARTIES.—(A)
Within 60 days after the end of the period specified
in paragraph (5)(A) for the proposal of additional
parties, the Administrator shall—
‘‘(i) issue a list of parties subject to the al-
location process (hereinafter referred to in this
section as the ‘allocation parties’);
‘‘(ii) identify in writing, as to each of the
proposed additional parties, which parties the
Administrator has determined, in the Adminis-
trator’s sole discretion—
‘‘(I) to be eligible for expedited settle-
ment pursuant to section 122(g),
‘‘(II) not to be eligible for such expe-
dited settlement, and
‘‘(III) for whom insufficient informa-
tion exists to determine whether or not the
party is eligible for such expedited settle-
ment; and
‘‘(iii) identify (in writing supported by
brief explanation) those parties as to which the
Administrator has determined, in the Adminis-
trator’s sole discretion, that there is an inad-
equate basis in law or fact to determine that
the party is liable under this Act.
The Administrator shall consider, when making de-
terminations under this subparagraph, all available
information provided pursuant to paragraph (5)(B).
For each party identified under clause (iii), the Ad-
ministrator shall further identify whether that party,
if liable, would be eligible for an expedited settle-
ment.
‘‘(B) At the time of issuance of the list of par-
ties provided for in subparagraph (A), the Adminis-
trator shall provide the potentially responsible par-
ties who received notice under this paragraph with
a list of neutral parties who are not employees of the
United States and who the Administrator deter-
mines, in the Administrator’s sole discretion, are
qualified to perform an allocation at the facility.
‘‘(C) Any party the Administrator identifies as
potentially liable and eligible for expedited settle-
ment pursuant to this section, shall only be required
to respond to information requests from the allo-
cator and shall only be assigned a share in the allo-
cation to the extent required to determine the or-
phan share pursuant to subsection (h), unless that
party fails to reach an agreement on settlement
terms with the President within 30 days after the
offer.
‘‘(D) The Administrator’s determinations for
purposes of this subsection shall not be subject to
judicial review, nor shall any determination or expla-
nation provided for purposes of the allocation be ad-
missible for any purpose in an action commenced by
the United States against the party that is the sub-
ject of the determination or any other party.
‘‘(E) The allocator may assign a zero share to
any party the allocator determines should receive
such a share in consideration of the allocation fac-
tors including the Administrator’s determinations
under subparagraph (C).
‘‘(F) If a party is included in the allocation
pursuant to the nomination of a potentially respon-
sible party pursuant to subsection (c)(5), but as-
signed a zero share by the allocator, that party’s
costs of participating in the allocation (including
reasonable attorneys’ fees) shall be borne by the
party who proposed the addition of the party to the
allocation.
‘‘(d) DE MINIMIS SETTLEMENT OFFER.—(1) Within
30 days after the final list of parties is issued pursuant
to paragraph (6) of subsection (c), the Administrator shall
submit a written settlement offer to any party identified
as a potentially responsible party pursuant to this section
who the Administrator has determined to be eligible for
an expedited final settlement in accordance with section
122(g)(1)(A), and who has not entered into a settlement
with the United States regarding the matters being ad-
dressed by the allocation. The Administrator shall, at the
same time, make available to such party upon request any
nonconfidential information related to the party’s settle-
ment.
‘‘(2) The President shall not include any premia pur-
suant to section 122(g) in a settlement offer made pursu-
ant to paragraph (1) more than 60 days after the date
the offer is required to be made pursuant to paragraph
(1) to a party that is a business which had full- and part-
time employees whose combined time was equivalent to
100 or fewer employees during the taxable year preceding
the date that the party received notification that the party
was eligible for an expedited settlement.
‘‘(e) SELECTION OF ALLOCATOR.—
‘‘(1) 
PROPOSAL
OF
ADDITIONAL
CAN-
DIDATES.—Any party identified by the Adminis-
trator under subsection (c) may propose any person
whom such party deems qualified for selection as an
allocator in addition to those proposed from the list
provided under subsection (c)(6)(B).
‘‘(2) SELECTION OF ALLOCATOR BY ALLOCA-
TION PARTIES.—The allocation parties shall select
an allocator from the list of allocators proposed by
the Administrator or under paragraph (1) by the fol-
lowing voting method with each allocation party hav-
ing a single vote:
‘‘(A) Each allocation party, with the Ad-
ministrator voting for the identified but insol-
vent or defunct parties, shall numerically rank
the individuals on the final list of proposed
allocators, with a ranking of 1 indicating first
preference, and forward its vote to the Adminis-
trator within 30 days of the issuance of the
final list of allocators pursuant to subsection
(c)(6)(B).
‘‘(B) The proposed allocator who receives
the lowest combined numerical score, taking
into account all votes submitted to the Adminis-
trator pursuant to clause (i), and who agrees to
serve as allocator, shall be the allocator.
‘‘(3) SELECTION OF ALLOCATOR BY EPA.—If
the allocation parties do not select an allocator pur-
suant to this subsection within 30 days after receipt
of the list provided under paragraph (2), the Admin-
istrator shall select the allocator, except that if the
Administrator rejects 4 or more allocators selected
by the allocation parties, the Administrator shall ini-
tiate a new allocator selection process under this sec-
tion.
‘‘(f) CONTRACT.—Following selection of the allocator,
the Administrator shall enter into a contract with the se-
lected allocator for the provision of allocation services for
the facility concerned, and immediately make available all
responses to information requests, as well as other rel-
evant information concerning the facility and potentially
responsible parties, to the allocator. The Administrator
has the authority to use the procedures set forth in section
109(e) to obtain the services of a neutral professional for
use in conducting allocation procedures under this section,
whether or not the neutral professional actually conducts
such allocation procedures.
‘‘(g) POTENTIALLY RESPONSIBLE PARTY SETTLE-
MENT.—At any time prior to the issuance of an allocation
report as described in subsection (h), any group of poten-
tially responsible parties may submit to the allocator a pri-
vate allocation. If such private allocation meets all of the
following criteria, the allocator shall promptly adopt it as
the allocation report:
‘‘(1) The private allocation is a binding alloca-
tion of 95 percent of the future recoverable response
costs at issue under subsection (a).
‘‘(2) The private allocation does not allocate
any share of response costs to any person who is not
a signatory to the proposed private allocation or, in
the case of any orphan share, unless the United
States (and, where applicable, the State) is a signa-
tory to the proposed private allocation.
‘‘(3) The signatories to the proposed private al-
location waive their contribution rights with respect
to the response costs subject to the allocation
against all other potentially responsible parties at
the facility.
‘‘(h) ALLOCATION DETERMINATION.—
‘‘(1) 
SETTLEMENT
AND
ALLOCATION
RE-
PORT.—Following issuance of the list of allocation
parties pursuant to subsection (c)(6)(A)(i), the allo-
cator shall initiate and conduct an allocation process
that shall culminate in the issuance of a written re-
port, with a nonbinding, equitable allocation of the
percentage shares of responsibility of all allocation
parties, including the orphan share, for response
costs at the facility within the scope of the alloca-
tion, and provide such report to the allocation par-
ties and the Administrator. The allocator shall pro-
vide the report to the allocation parties and the Ad-
ministrator within 180 days of the issuance of the
list of allocation parties pursuant to subsection
(c)(6) or the date of the contract for allocation serv-
ice pursuant to subsection (f), whichever is later.
Upon request, for good cause shown, the Adminis-
trator may grant the allocator additional time to
complete the allocation, not to exceed 90 days.
‘‘(2) FACTORS IN THE ALLOCATION.—The allo-
cator shall prepare a nonbinding, equitable allocation
of percentage shares for the facility based on the fol-
lowing factors:
‘‘(A) The amount of hazardous substances
contributed by each allocation party.
‘‘(B) The degree of toxicity of hazardous
substances contributed by each allocation party.
‘‘(C) The mobility of hazardous substances
contributed by each allocation party.
‘‘(D) The degree of involvement of each al-
location party in the generation, transportation,
treatment, storage, or disposal of the hazardous
substance.
‘‘(E) The degree of care exercised by each
allocation party with respect to the hazardous
substance, taking into account the characteris-
tics of the hazardous substance.
‘‘(F) The cooperation of each allocation
party in contributing to the response action and
in providing complete and timely information
during the allocation process.
‘‘(G) Such other factors that the Adminis-
trator determines are appropriate by published
guidance. Any such guidance shall be consistent
with this Act and shall be published only after
notice and opportunity for public comment. An
alleged failure of the allocator to consider 1 or
more additional factors set forth in such guid-
ance shall not be deemed unlawful conduct or
procedural error for purposes of subsection
(l)(1)(B).
‘‘(3) CONDUCT OF ALLOCATION PROCESS.—The
allocator shall conduct the allocation process and
render a decision based solely on the provisions of
this section, including the allocation factors specified
in paragraph (2). Each party to the allocation shall
be afforded an opportunity to be heard (either orally
or in writing, at the allocator’s discretion), and an
opportunity to comment on a draft allocation report.
The allocator shall not be required to respond to
comments.
‘‘(4) IDENTIFICATION OF ORPHAN SHARES.—
‘‘(A) COMPONENTS OF ORPHAN SHARE.—
The allocator may determine that a percentage
share for the facility is specifically attributable
to an orphan share. The orphan share shall
consist only of the following:
‘‘(i) Shares attributable to hazardous
substances that the allocator determines,
on the basis of information presented, to
be specifically attributable to identified but
insolvent or defunct allocation parties who
are not affiliated with any viable allocation
party.
‘‘(ii) The difference between the ag-
gregate shares that the allocator deter-
mines are attributable to an allocation
party and the aggregate share actually
paid by that party (other than a party en-
titled 
to 
the 
exemption 
in 
section
107(a)(6)(B)) if the liability of the party is
eliminated or limited by any provision of
this Act.
‘‘(iii) The difference between the ag-
gregate share that the allocator deter-
mines, on the basis of information pre-
sented, to be specifically attributable to al-
location parties who settled with the Unit-
ed States before completion of the alloca-
tion and the share actually assumed by
those parties in any settlements with the
United States.
‘‘(B) UNATTRIBUTABLE SHARES.—Shares
attributable to hazardous substances that the
allocator cannot attribute to any identified
party shall be distributed among the allocation
parties, including the orphan share, in accord-
ance with the allocated share assigned to each.
‘‘(5) COSTS INCURRED BEFORE OCTOBER 28,
1997.—An allocated share received by a person shall,
at the person’s discretion, be binding on any action
or claim for response costs incurred before October
28, 1997, under section 113 if such action or claim
has not become final as of October 28, 1997.
‘‘(i) 
ANSWERS
AND
CERTIFICATIONS
TO
ALLOCATOR’S INFORMATION REQUESTS.—
‘‘(1) 
SUBPOENAS
AND
INFORMATION
RE-
QUESTS.—Where necessary to assist in determining
the allocation of shares, the allocator may request
information or documents from any allocation party
in accordance with paragraphs (2) or (5) of section
104(e), and require by subpoena the attendance of
persons or the production of documents, or other in-
formation in accordance with section 104(e)(7). Any
allocation party to whom a request is directed shall
include in the response a certification by a respon-
sible representative or authorized representative that
satisfies the requirement of section 104(e)(3). The
allocator may also request the Administrator to uti-
lize the authorities of paragraph (2) and to exercise
any information-gathering authority of the Adminis-
trator under this Act.
‘‘(2) POWERS OF THE ALLOCATOR.—In addi-
tion to the information-gathering authority set forth
in paragraph (1), the allocator shall have the au-
thority to schedule meetings and require the attend-
ance of allocation parties at such meetings; to re-
quire that allocation parties wishing to present simi-
lar legal or factual positions consolidate their pres-
entations; to obtain or employ support services, in-
cluding secretarial and clerical services, computer
support services, and legal and investigative services;
and to take any other actions necessary to conduct
a fair, efficient, and impartial allocation process.
‘‘(j) CIVIL AND CRIMINAL PENALTIES.—
‘‘(1) CIVIL PENALTIES.—Where the allocator is-
sues an administrative subpoena or information re-
quest pursuant to subsection (i), a party who unrea-
sonably fails to comply with the subpoena or request
shall be subject to a civil penalty not to exceed
$25,000 for each day of noncompliance.
‘‘(2) ENFORCEMENT.—The allocator may seek
enforcement of an administrative subpoena or infor-
mation request pursuant to subsection (i)(1), and
shall seek such enforcement by requesting that the
Attorney General commence an action to enforce the
subpoena or request. The Attorney General, within
30 days after receiving such request from the allo-
cator, shall—
‘‘(A) notify the allocator that the Attorney
General will commence an action to enforce the
subpoena or information request;
‘‘(B) notify the allocator that the Attorney
General will not seek enforcement of the sub-
poena or request because the subpoena or re-
quest is barred by law or would result in annoy-
ance, embarrassment, oppression, or undue bur-
den or expense to the party to whom it was is-
sued; or
‘‘(C) notify the allocator that the Attorney
General has insufficient information on which
to determine whether an enforcement action is
appropriate.
‘‘(3) FAILURE OF ATTORNEY GENERAL TO RE-
SPOND.—If the Attorney General fails to provide
any response to the allocator within 30 days of a re-
quest for enforcement of a subpoena or information
request, the allocator may retain counsel to com-
mence a civil action to enforce the subpoena or in-
formation request.
‘‘(4) PENALTY.—If the Attorney General or al-
locator prevails in an action to enforce an allocator’s
subpoena or information request, the party who
failed to comply shall be subject to a sanction that
may include civil penalties as provided in paragraph
(1). The court shall require such party to pay the
reasonable expenses, including attorney’s fees,
caused by the failure to comply, unless the court
finds that the failure was substantially justified or
that other circumstances make an award of expenses
unjust.
‘‘(5) CRIMINAL.—Any person who knowingly
and willfully makes any false material statement or
representation in the response to an allocator’s in-
formation request or subpoena issued pursuant to
subsection (i) shall be deemed to have made a false
statement on a matter within the jurisdiction of the
United States within the meaning of section 1001 of
title 18, United States Code.
‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIALITY.—
‘‘(1) DOCUMENT
REPOSITORY.—The allocator
shall establish and maintain a document repository
containing copies of all documents and informa-
tion—
‘‘(A) provided by the Administrator pursu-
ant to this section,
‘‘(B) provided or generated by the alloca-
tion parties, or
‘‘(C) generated by the allocator during the
allocation.
The documents and information in the document re-
pository shall be available only to the parties to the
allocation process for review and copying at their
own expense, subject to the confidentiality provisions
of paragraph (2). The Administrator shall provide to
the allocator all information obtained under section
104(e), including information entitled to protection
under section 1905 of title 18, United States Code,
or exempt from disclosure pursuant to section
552(a) of title 5, United States Code. An allocation
party shall not assert any privilege as a basis for
withholding any information from the allocator.
‘‘(2) CONFIDENTIALITY.—All documents and
materials submitted to the allocator or placed in the
document repository, together with the record of any
information generated or obtained during the alloca-
tion process, shall be confidential. The allocator,
each allocation party, the Administrator, and the At-
torney General shall maintain such documents and
materials, together with the record of any informa-
tion generated or obtained during the allocation, as
confidential and are prohibited from using any such
material in any other matter or proceeding, and
shall not be subject to disclosure under section 552
of title 5, United States Code. Such material shall
not be discoverable or admissible in any other Fed-
eral, State, or local judicial or administrative pro-
ceedings, except—
‘‘(A) a new allocation pursuant to sub-
section (m) or (n) for the same remedial action,
or
‘‘(B) an initial allocation for a different re-
medial action at the same facility.
Nothing in this section shall be construed to author-
ize any person, including the allocator, to withhold
any documents or information from Congress, or any
duly authorized Committee thereof, or limit in any
manner the right of Congress, or any duly author-
ized Committee thereof, to obtain such documents or
information. Any person disclosing such documents
or information to Congress shall notify the person
who produced such documents or information of the
fact of such disclosure pursuant to paragraph (5).
‘‘(3) DISCOVERABILITY AND ADMISSIBILITY.—
Notwithstanding the foregoing, if the original of any
document or material submitted to the allocator or
placed in the document repository was, in the hands
of the party which provided it, otherwise discover-
able or admissible, then such original document, if
subsequently sought from such party, shall remain
so. If a fact generated or obtained during the alloca-
tion was, in the hands of a witness, otherwise discov-
erable or admissible, then such fact, if subsequently
sought from such other party, shall remain so.
‘‘(4) NO WAIVER OF PRIVILEGE.—The submis-
sion of, documents, or information pursuant to the
allocation process shall not be deemed to be a waiver
of any privilege, applicable to such documents or in-
formation under any Federal or State law or rule of
discovery or evidence.
‘‘(5) 
PROCEDURE
WHEN
DISCOVERY
IS
SOUGHT.—Any person, including the United States
and any Federal, State, or local agency, department
or instrumentality, receiving any request for a state-
ment, document, or material submitted, or for the
record of any allocation proceeding, shall promptly
notify the person who originally submitted such item
and, except in the case of a request from the Con-
gress or a duly authorized committee thereof, shall
provide such submitting person the opportunity to
assert and defend the confidentiality of such item.
No person shall release or provide a copy of the item
to any person not a party to such allocation, other
than the Congress or a duly authorized committee
thereof, except as may be required by court order.
‘‘(6) CIVIL PENALTY FOR VIOLATION OF CON-
FIDENTIALITY.—Any person who fails to maintain
the confidentiality of any statements, documents or
information generated or obtained during an alloca-
tion proceeding, or who releases any such informa-
tion in violation of this section shall be subject to
civil penalties of up to $25,000 per violation. Such
penalties may be sought in a civil action initiated by
the Attorney General on behalf of the United States,
or any allocation party adversely affected by the fail-
ure to maintain confidentiality.
‘‘(l) REJECTION OF ALLOCATION REPORT.—
‘‘(1) REJECTION.—The Administrator and the
Attorney General may jointly reject a report issued
by an allocator only if the Administrator and the At-
torney General jointly publish, not later than 180
days after the Administrator receives the report, a
written determination that—
‘‘(A) no rational interpretation of the facts
before the allocator, in light of the factors re-
quired to be considered, would form a reason-
able basis for the shares assigned to the parties;
or
‘‘(B) the allocation process was directly
and substantially affected by bias, procedural
error, fraud, or unlawful conduct.
‘‘(2) FINALITY.—A report issued by an allo-
cator may not be rejected after the date that is 180
days after the date on which the United States ac-
cepts a settlement offer (excluding an expedited set-
tlement under section 122) based on the allocation.
‘‘(3) JUDICIAL REVIEW.—Any determination by
the Administrator or the Attorney General under
this subsection shall not be subject to judicial review
unless 2 successive allocation reports relating to the
same response action are rejected, in which case any
allocation party may obtain judicial review of the
second rejection in a United States district court
under subchapter II of chapter 5 of part I of title
5, United States Code.
‘‘(4) DELEGATION.—The authority to make a
determination under this subsection may not be dele-
gated to any officer or employee below the level of
an Assistant Administrator or Acting Assistant Ad-
ministrator or an Assistant Attorney General or Act-
ing Assistant Attorney General with authority for
implementing this Act.
‘‘(m) SECOND AND SUBSEQUENT ALLOCATIONS.—
‘‘(1) IN
GENERAL.—If a report is rejected
under subsection (l), the allocation parties shall se-
lect an allocator to perform, on an expedited basis,
a new allocation based on the same record available
to the previous allocator.
‘‘(2) MORATORIUM AND TOLLING.—The mora-
torium and tolling provisions of subsection (c) shall
be extended until the date that is 180 days after the
date of the issuance of any second or subsequent al-
location report under paragraph (1).
‘‘(3) SAME ALLOCATOR.—The allocation parties
may select the same allocator who performed 1 or
more previous allocations at the facility, except that
the Administrator may determine that an allocator
whose previous report at the same facility has been
rejected under subsection (l) is unqualified to serve.
‘‘(n) SETTLEMENTS BASED ON ALLOCATIONS.—
‘‘(1) DEFINITION.—In this subsection, the term
‘all settlements’ includes any orphan share allocated
under subsection (h).
‘‘(2) IN GENERAL.—Unless an allocation report
is rejected under subsection (l), any allocation party
at a mandatory allocation facility (including an allo-
cation party whose allocated share is funded par-
tially or fully by orphan share funding under sub-
section (h)) shall be entitled to resolve the liability
of the party to the United States for response ac-
tions subject to allocation if, not later than 90 days
after the date of issuance of a report by the allo-
cator, the party—
‘‘(A) offers to settle with the United States
based on the allocated share specified by the al-
locator; and
‘‘(B) agrees to the other terms and condi-
tions stated in this subsection.
‘‘(3) SETTLEMENT
PROVISIONS.—Settlements
based on allocated shares shall include each of the
following:
‘‘(A) A waiver of contribution rights
against all parties who are potentially respon-
sible parties for the response costs which are
subject to the allocation, as well as a waiver of
any rights to challenge any settlement the
President enters into with any other potentially
responsible party.
‘‘(B) Covenants not to sue, consistent with
section 122(f), and provisions regarding per-
‘‘(E) Provisions through which the settling
parties shall receive reimbursement from the
Fund for any response costs which are subject
to the allocation incurred by such parties in ex-
cess of the aggregate of their allocated share
and any premia required by the settlement.
Such right to reimbursement shall not be con-
tingent on the United States recovery of re-
sponse costs from any responsible person not a
party to any settlement with the United States.
‘‘(4) PREMIUM PROVISIONS.—
‘‘(A) PREMIUM LIMITATIONS.—(i) The pre-
mium authorized by paragraph (3)(C) for litiga-
tion risk shall not exceed the following:
‘‘(I) Five percent of the total costs as-
sumed by a settling party, where settle-
ments (and any orphan share identified by
the allocator) account for 80 percent or
more of responsibility at the facility.
‘‘(II) Ten percent of the total costs
assumed by a settling party, where settle-
ments (and any orphan share identified by
the allocator) account for more than 60
percent and less than 80 percent of re-
sponsibility at the facility.
‘‘(III) Fifteen percent of the total
costs assumed by a settling party, where
settlements (and any orphan share identi-
fied by the allocator) account for more
than 40 percent and less than 60 percent
of responsibility at the facility.
‘‘(IV) Twenty percent of the total
costs assumed by a settling party, where
settlements (and any orphan share identi-
fied by the allocator) account for 40 per-
cent or less of responsibility at the facility.
‘‘(ii) The Administrator shall have author-
ity to promulgate regulations to modify the
premia percentages established in this subpara-
graph. The Administrator may not propose a
rule before the date 36 months after the enact-
ment of this section, and no such rule may take
effect before the date 48 months after the en-
actment of this section. Such rule must be
based upon an administrative record establish-
ing that such modification is necessary to re-
flect actual experience regarding the litigation
risk faced by the United States in proceeding
against nonsettling parties under this section.
‘‘(B) PREMIUM REIMBURSEMENT.—(i) In
a case in which an allocation party has entered
into a settlement under this subsection and has
paid a premium in accordance with the limita-
tions in subparagraph (A), if the total amount
of response costs recovered by the United
States after the date of the settlement exceeds
the total amount that settlements (and any or-
phan share identified by the allocator) ac-
counted for in applying the limitations in sub-
paragraph (A), then the United States shall re-
imburse part of the premium paid by the alloca-
tion party in accordance with clause (ii).
‘‘(ii) The United States shall reimburse an
allocation party subject to clause (i) an amount
equal to one-half of the difference between—
‘‘(I) the premium actually paid by the
allocation party; and
‘‘(II) the premium that would have
been paid by the allocation party had the
total amount of response costs recovered
by the United States after the date of the
settlement been used in applying the limi-
tations in subparagraph (A).
‘‘(5) AUTHORIZATION
OF
REIMBURSEMENT.—
In any settlement in which a party agrees to per-
form response work in excess of its share, the Ad-
ministrator shall have authority to carry out the Ad-
ministrator’s duty to reimburse settling parties
under this section pursuant to such reasonable pro-
cedures as the Administrator may prescribe.
‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis-
trator shall require all claims for reimbursement to
be supported by—
‘‘(A) documentation of actual costs in-
curred; and
‘‘(B) sufficient information to enable the
Administrator to determine whether such costs
were reasonable.
‘‘(7) SITE-SPECIFIC ACCOUNTS.—If, as part of
any settlement agreement under this subsection, a
potentially responsible party will be paying amounts
to the President for carrying out any response action
at a particular vessel or facility, the President shall
retain such amounts in specific interest-bearing ac-
counts, and use such amounts, together with accrued
interest, to conduct or enable other persons to con-
duct the response action at the vessel or facility.
‘‘(o) POST-ALLOCATION LITIGATION.—
‘‘(1) IN
GENERAL.—The United States may
commence an action under section 107 against any
person liable under that section who has not resolved
its liability to the United States following allocation,
on or after 90 days following issuance of the
allocator’s report. In any such action, such person
shall be liable in accordance with section 107 for all
response costs not recovered through settlements
with other persons. Such recoverable costs shall in-
clude any federally funded orphan share identified in
accordance with subsection (h), but shall not include
any shares allocated to Federal, State, or local gov-
ernmental agencies, departments, or instrumental-
ities. Defendants in any such action may implead
only allocation parties who did not resolve their li-
ability to the United States. The Administrator and
the Attorney General shall issue guidelines to ensure
that the relief sought against de minimis parties
under principles of joint and several liability will not
be grossly disproportionate to their contribution to
the facility. The application of such guidelines is
committed to the discretion of the Administrator
and the Attorney General.
‘‘(2) CERTIFICATION.—In commencing any ac-
tion under section 107 following allocation, the At-
torney General must certify, in the complaint, that
the United States has been unable to reach a settle-
ment that would be in the best interests of the Unit-
ed States. This certification shall not be subject to
judicial review.
‘‘(3) DEFENDANTS.—No person may commence
an action under section 107 or otherwise seek con-
tribution for response costs which are subject to the
allocation against any person who was not identified
as an allocation party pursuant to subsection (c) or
subsequently identified as a potentially liable party.
‘‘(4) ADMISSIBILITY
OF
ALLOCATOR’S
RE-
PORT.—The allocator’s report shall not be admissi-
ble in any court for any purpose, except as set forth
in this section. The allocator’s report, subject to the
rules and discretion of the court, may be admissible
solely for the purpose of assisting the court in mak-
ing an equitable allocation of response costs among
the relative shares of nonsettling liable parties.
‘‘(5) COSTS
OF
ALLOCATION
PROCEDURE
ON
ORPHAN
SHARE
INCLUDED
AS
COSTS
OF
RE-
SPONSE.—The costs of implementing the allocation
procedure set forth in this section, including reason-
able fees and expenses of the allocator, shall be con-
sidered necessary costs of response for purposes of
this Act.
‘‘(6) REJECTION OF SHARE DETERMINATION.—
In any action by the United States under this title,
if the United States has rejected an offer of settle-
ment that is consistent with subsection (n) and that
was presented to the United States prior to the expi-
ration of the moratorium period set forth in sub-
section (b), the offeror shall be entitled to recover
from the United States the offeror’s reasonable costs
of defending the action after the making of the offer
(including reasonable attorneys’ fees) if the ultimate
resolution of liability or allocation of costs with re-
spect to the offeror (taking into account all settle-
ments and reimbursements with respect to the facil-
ity other than those attributable to insurance or in-
demnification), is as, or more, favorable to the
offeror than the offer based on the allocation.
‘‘(p) UAO PERFORMANCE.—
‘‘(1) REIMBURSEMENT.—Any allocation party
who satisfactorily performs work under an adminis-
trative order issued under section 106(a) after the
issuance of an allocation report shall be entitled to
the reasonable and necessary costs of work in excess
of their allocated share, provided that the party—
‘‘(A) agrees not to contest liability for all
response costs not inconsistent with the Na-
tional Contingency Plan to the extent of the al-
located share;
‘‘(B) agrees that its reimbursement shall
be reduced by an amount equal to the maxi-
mum litigation risk premium provided for in
subsection (n)(4) based on the total allocated
shares of the allocation parties who have not
reached settlements with the United States by
the end of the moratorium on commencement of
actions provided in subsection (b); and
‘‘(C) waives contribution rights against all
parties who are potentially responsible parties
for the response action, as well as waives any
rights to challenge any settlement the President
enters into with any other potentially respon-
sible party.
‘‘(2) OFFSET.—Any and all reimbursement pro-
vided to a performing party for work in excess of its
share is subject to equitable offset or reduction by
the Administrator upon a finding of a failure to per-
form any aspect of the remedy in a proper and time-
ly manner.
‘‘(3) TIME OF PAYMENT.—Any and all reim-
bursement to a performing party for work in excess
of its share shall be paid after work is completed,
but no sooner than completion of the construction of
the remedial action.
‘‘(4) REIMBURSEMENT CLAIMS.—The Adminis-
trator shall require that all claims for reimburse-
ment be supported by—
‘‘(A) documentation of actual costs in-
curred; and
‘‘(B) sufficient information to enable the
Administrator to determine whether such costs
were reasonable.
‘‘(5) INDEPENDENT AUDITING.—The Adminis-
trator may require independent auditing of any
claim for reimbursement.
‘‘(6) BAR.—An administrative order under sec-
tion 106(a) shall be in lieu of any action by the
United States or any other person against the allo-
cation party for recovery of response costs in connec-
tion with the response action, or for a contribution
toward the costs of the response action that is sub-
ject to the allocation process under this section.
‘‘(q) FUNDING OF ORPHAN SHARES.—
‘‘(1) LIMITATION ON OBLIGATIONS.—For each
settlement agreement entered into pursuant to sub-
section (n) that includes an orphan share, and for
each unilateral administrative order where the per-
son satisfies the requirements of subsection (p), the
United States shall reimburse the allocation parties,
including any Federal agency, for costs incurred and
equitably attributable to the orphan share. In no
case shall the United States obligate for such costs
and interest determined under paragraph (3) in ex-
cess of $
in any fiscal year, plus any re-
maining unobligated balance of funds made available
under paragraph (2) from previous fiscal years. The
mandate to the United States to make obligations
and payments under this paragraph constitutes an
entitlement to those parties eligible to receive those
payments.
‘‘(2) AUTHORIZATION.—There are authorized to
be appropriated from the Fund not to exceed
$
per year for fiscal year 1998 and each
succeeding fiscal year for payments required by
paragraph (1), to remain available until expended.
‘‘(3) AMOUNTS OWED.—
‘‘(A) DELAY
IF
FUNDS
ARE
UNAVAIL-
ABLE.—If funds are unavailable in any fiscal
year to reimburse all allocation parties pursuant
to paragraph (1), the Administrator may delay
payment until funds are available.
‘‘(B) PRIORITY.—The priority for reim-
bursement shall be based on the length of time
that has passed since the settlement between
the United States and the allocation parties
pursuant to subsection (n).
‘‘(C) PAYMENT FROM FUNDS MADE AVAIL-
ABLE
IN
SUBSEQUENT
FISCAL
YEARS.—Any
amount due and owing in excess of available ap-
propriations in any fiscal year shall be paid
from amounts made available in subsequent fis-
cal years, along with interest on the unpaid bal-
ances at the rate equal to that of the current
average market yield on outstanding marketable
obligations of the United States with a maturity
of 1 year.
‘‘(r) ROLE OF FEDERAL AGENCIES.—Federal depart-
ments, agencies, or instrumentalities that are identified as
potentially responsible parties shall be subject to, and be
entitled to the benefits of, the allocation process provided
by this section to the same extent as any other party, other
than the receipt of orphan share funding under subsection
(h).
‘‘(s) REPRESENTATIVE OF THE FUND.—The Admin-
istrator and the Attorney General shall participate in the
allocation proceeding as a representative of the Fund.
‘‘(t) ANNUAL REPORT.—The President shall report
annually to Congress on the administration of the alloca-
tion scheme under this section, and provide information
comparing allocation results with actual settlements at
multiparty facilities.
‘‘(u) SAVINGS PROVISIONS.—(1) Nothing in this sec-
tion shall in any way limit or affect the President’s author-
ity to exercise the powers conferred by section 103, 104,
105, 106, or 122 of this title, or to commence an action
against a party where there is a contemporaneous filing
of a judicial consent decree resolving that party’s liability;
or to file a proof of claim or take other action in a proceed-
ing under title 11 of the United States Code.
‘‘(2) The procedures established in this section shall
not be construed to modify or affect in any way the prin-
ciples of retroactive, strict, joint and several liability under
this title.
‘‘(3) Nothing in this section shall limit or affect—
‘‘(A) the Administrator’s obligation to perform
an allocation for facilities that have been the subject
of partial or expedited settlements;
‘‘(B) the ability of a potentially responsible
party at a facility to resolve its liability to the Unit-
ed States or other parties at any time before initi-
ation or completion of the allocation process;
‘‘(C) the validity, enforceability, finality, or
merits of any judicial or administrative order, judg-
ment, or decree that is issued, signed, lodged, or en-
tered with respect to liability under this Act or that
authorizes modification of any such order, judgment
or decree; or
‘‘(D) the validity, enforceability, finality or mer-
its of any preexisting contract or agreement relating
to any allocation of responsibility or any sharing of
response costs under this Act.
‘‘(v) RESPONSE ACTION CONTRACTOR.—A person
who is potentially liable under this Act solely as a response
action contractor with respect to a facility in accordance
with section 119 shall not be named as an allocation party
under this section with respect to that facility.’’.
SEC. 204. RECYCLING TRANSACTIONS.
(a) PURPOSES.—The purposes of this section are—
(1) to promote the reuse and recycling of scrap
material in furtherance of the goals of waste mini-
mization and natural resource conservation while
protecting human health and the environment;
(2) to level the playing field between the use of
virgin materials and recycled materials; and
(3) to remove the disincentives and impedi-
ments to recycling because of potential liability.
(b) CLARIFICATION OF LIABILITY UNDER CERCLA
FOR RECYCLING TRANSACTIONS.—Title I is amended by
adding after section 128 the following new section:
‘‘SEC. 129. RECYCLING TRANSACTIONS.
‘‘(a) LIABILITY CLARIFICATION.—As provided in
subsections (b), (c), (d) and (e), a person who arranged
for the recycling of recyclable material shall not be liable
under section 107(a)(3) or 107(a)(4).
‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur-
poses of this section, the term ‘recyclable material’ means
scrap paper, scrap plastic, scrap glass, scrap textiles,
scrap rubber (other than whole tires), scrap metal, or
spent lead-acid, spent nickel-cadmium and other spent
batteries, as well as minor amounts of material incident
to or adhering to the scrap material as a result of its nor-
mal and customary use prior to becoming scrap.
‘‘(c) TRANSACTIONS
INVOLVING
SCRAP
PAPER,
PLASTIC, GLASS, TEXTILES, OR RUBBER.—Transactions
involving scrap paper, scrap plastic, scrap glass, scrap tex-
tiles, or scrap rubber (other than whole tires) shall be
deemed to be arranging for recycling if the person who
100
arranged for the transaction (by selling recyclable material
or otherwise arranging for the recycling of recyclable ma-
terial) can demonstrate by a preponderance of the evi-
dence that all of the following criteria were met at the
time of the transaction:
‘‘(1) The recyclable material met a commercial
specification grade.
‘‘(2) A market existed for the recyclable mate-
rial.
‘‘(3) A substantial portion of the recyclable ma-
terial was made available for use as a feedstock for
the manufacture of a new saleable product.
‘‘(4) The recyclable material could have been a
replacement or substitute for a virgin raw material,
or the product to be made from the recyclable mate-
rial could have been a replacement or substitute for
a product made, in whole or in part, from a virgin
raw material.
‘‘(5) For transactions occurring 90 days or
more after the date of enactment of this section, the
person exercised reasonable care to determine that
the facility where the recyclable material would be
handled, processed, reclaimed, or otherwise managed
by another person (hereinafter in this section re-
ferred to as a ‘consuming facility’) was in compli-
101
ance with substantive (not procedural or administra-
tive) provisions of any Federal, State, or local envi-
ronmental law or regulation, or compliance order or
decree issued pursuant thereto, applicable to the
handling, processing, reclamation, storage, or other
management activities associated with the recyclable
material.
‘‘(6) For purposes of this subsection, ‘reason-
able care’ shall be determined using criteria that in-
clude (but are not limited to) (A) the price paid in
the recycling transaction; (B) the ability of the per-
son to detect the nature of the consuming facility’s
operations concerning its handling, processing, rec-
lamation, or other management activities associated
with the recyclable material; and (C) the result of
inquiries made to the appropriate Federal, State, or
local environmental agency (or agencies) regarding
the consuming facility’s past and current compliance
with substantive (not procedural or administrative)
provisions of any Federal, State, or local environ-
mental law or regulation, or compliance order or de-
cree issued pursuant thereto, applicable to the han-
dling, processing, reclamation, storage, or other
management activities associated with the recyclable
material. For the purposes of this paragraph, a re-
102
quirement to obtain a permit applicable to the han-
dling, processing, reclamation, or other management
activity associated with the recyclable materials shall
be deemed to be a substantive provision.
‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—
‘‘(1) Transactions involving scrap metal shall be
deemed to be arranging for recycling if the person
who arranged for the transaction (by selling recycla-
ble material or otherwise arranging for the recycling
of recyclable material) can demonstrate by a prepon-
derance of the evidence that at the time of the
transaction—
‘‘(A) the person met the criteria set forth
in subsection (c) with respect to the scrap
metal;
‘‘(B) the person was in compliance with
any applicable regulations or standards regard-
ing the storage, transport, management, or
other activities associated with the recycling of
scrap metal that the Administrator promulgates
under the Solid Waste Disposal Act subsequent
to the enactment of this section and with re-
gard to transactions occurring after the effec-
tive date of such regulations or standards; and
120
Advisory Group, if any, affected Indian Tribes, the
affected community, local government officials and
local health officials throughout all significant
phases of the response action at the facility. The
President, on a regular basis, shall inform such enti-
ties of the progress and substance of technical meet-
ings between the lead agency and potentially respon-
sible parties regarding a covered facility. The Presi-
dent shall notify the Community Advisory Group, if
any, affected Indian Tribes, the affected community,
local government officials and local health officials
concerning—
‘‘(A) the schedule for commencement of
construction activities at the covered facility
and the location and availability of construction
plans;
‘‘(B) the results of any review under sec-
tion 121(c) and any modifications to the cov-
ered facility made as a result of the review; and
‘‘(C) the execution of and any revisions to
institutional controls being used as part of a re-
medial action.’’.
(4) Such section 117 is amended by striking ‘‘major’’
in subsection (d).