I
103D CONGRESS
1ST SESSION
H. R. 2709
To encourage owners and operators of contaminated sites to clean up those
sites, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 22, 1993
Mr. KREIDLER introduced the following bill; which was referred jointly to the
Committees on Energy and Commerce and Public Works and Transportation
A BILL
To encourage owners and operators of contaminated sites
to clean up those sites, and for other purposes.
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 ‘‘Expedited Hazardous
Site Cleanup Act of 1993’’.
SEC. 2. DEFINITIONS.
(a) IN GENERAL.—The terms used in this Act shall
have the same meaning when used in the Comprehensive
Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. 9601 and following).
(b) ADDITIONAL DEFINITION.—For purposes of this
Act the term ‘‘contaminated facility’’ means any facility
to which this Act is applicable as provided in section 3.
SEC. 3. APPLICABILITY.
This Act applies to any facility listed on the National
Priorities List under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42
U.S.C. 9601 and following) and to any facility listed pur-
suant to State law on any list of facilities requiring re-
moval or remedial action for hazardous substances or any
other pollutant or contaminant, or any facility proposed
for inclusion on that list.
SEC. 4. AUTHORIZED STATE PROGRAMS.
(a) AGREEMENTS WITH STATES.—The Adminis-
trator may enter into cooperative agreements with any
State authorizing the State to administer the owner-opera-
tor initiated response program described in this Act with
respect to any facility described in section 3, any class or
category of such facilities or with respect to all such facili-
ties located in that State.
(b) STATE QUALIFICATIONS.—A State must meet the
following qualifications to be considered eligible to admin-
ister this program:
(1) The State must provide adequate opportuni-
ties for public participation.
(2) The State must provide technical assistance
throughout the cleanup.
(3) The State must assume responsibility for
the cleanup if the owner fails or refuses to complete
the necessary cleanup.
(4) The State must provide adequate oversight
and has adequate enforcement authorities to ensure
that cleanups under this Act are completed in ac-
cordance with all applicable Federal and State re-
quirements, including ongoing operation and mainte-
nance or long-term monitoring activities.
(c) STATE APPROVAL OF RESPONSE ACTION.—Any
approval by a State administering an authorized program
under this section of a response action shall have the same
force and effect as approval by the Administrator under
this Act.
SEC. 5. PROCEDURES FOR UNDERTAKING RESPONSES.
(a) NOTICE
OF INTENTION TO CONDUCT
A RE-
SPONSE.—At any time after the date 6 months after the
date of enactment of this Act, any person who is the owner
or operator of a contaminated facility or portion thereof
may submit to the Administrator (or to the State in the
case of an authorized State program), and all known Po-
tentially Responsible Parties (PRPs) at the site, a notifi-
cation of intent to conduct a response pursuant to this
Act. Such notice shall set forth information sufficient for
the Administrator (or the State, if authorized) to deter-
mine that the facility is eligible for the response program
under this Act.
(b) OVERSIGHT COSTS.—(1) As conditions of eligi-
bility for the response program set forth in this Act, the
facility owner giving notice shall—
(A) agree in advance to pay the reasonable and
necessary direct costs incurred and documented by
the Administrator (or the State, if authorized) in re-
viewing the response action and redevelopment plan
submitted as provided in subsection (d) and
overseeing the response;
(B) at the request of the Administrator (or
State, if authorized), secure a bond so that the
cleanup of the site, if started by the owner/operator,
is assured of completion; and
(C) make a one-time, nonrefundable payment of
$5,000 at the time such owner submits a response
action and redevelopment plan under subsection (d).
Such payment shall constitute a set-off against future
oversight costs incurred by the Administrator (or the
State, if authorized).
(2) The Administrator (or the State, if authorized)
shall establish procedures for arbitration of disputes con-
cerning reimbursement of reasonable direct costs incurred
under this Act.
(c) FACILITY INVESTIGATION.—A response action
plan under this section shall include a schedule for con-
ducting a facility investigation which assesses each factor
listed below that is necessary to determine an appropriate
response to the particular release—
(1) The physical characteristics of the facility,
including important surface features, soils, geology,
hydrogeology, meteorology, and ecology.
(2) The characteristics or classifications of air,
surface water, and ground water at the facility.
(3) The general characteristics of the hazardous
substances and hazardous constituents at the facil-
ity, including quantity, state, concentration, toxicity,
propensity to bioaccumulate, persistence, and mobil-
ity.
(4) The extent to which the source of the re-
lease of hazardous substances and hazardous con-
stituents can be adequately identified and character-
ized.
(5) The actual and potential exposure pathways
through environmental media.
(6) The actual and potential exposure pathways
to human receptors.
(7) The current uses of the property and adja-
cent properties.
(8) Other factors that pertain to the character-
ization of the facility for the purpose of a response
or selection of a response action alternative.
The results of the facility investigation shall be available
to the public upon request and a summary of such results
shall be provided public libraries in the vicinity of the facil-
ity.
(d) RESPONSE
ACTION
AND
REDEVELOPMENT
PLAN.—
(1) PUBLIC NOTICE.—Any facility owner or op-
erator intending to carry out a response action
under this Act shall publish a notice in the news-
papers in the vicinity of the facility announcing his
intention to carry out such action together with a
notice that the facility investigation is available to
the public. The notice shall include information on
the location of the site, a general description of the
proposed response action, and a description of the
proposed future use of the site. Within 15 days of
receipt of a response action and redevelopment plan
prepared under paragraph (2), the Administrator (or
the State, if authorized) shall publish notice of re-
ceipt of the plan and a brief summary of the plan,
information regarding the availability of the plan to
the public, and notice of a 30-day opportunity for
public comment. The facility owner shall submit (by
registered or certified mail) to the Federal and State
natural resource trustees and all known Potentially
Responsible Parties a copy of the notices required
under this subsection and a copy of the response ac-
tion plan at the same time as such notices are re-
quired to be published under this paragraph.
(2) REQUIREMENT
FOR
A
RESPONSE
ACTION
PLAN.—The owner of any facility proposing to un-
dertake response action under this Act shall prepare
and submit to the Administrator (or the State, if au-
thorized) a response action plan. The plan shall de-
scribe each of the following—
(A) The response action to be taken.
(B) The response standards to be achieved
in accordance with section 106 of this Act.
(C) The level or standard of control for
hazardous substances or hazardous constituents
that will be discharged or emitted into the envi-
ronment during the response action consistent
with the standards section under 106 of this
Act.
(7) There have occurred natural resource dam-
ages which are not remedied by the response action
plan unless the federal or State natural resource
trustee has agreed to the plan without reservation.
In addition, additional response action may be re-
quired after the owner or operator of the facility submits
a certification to the Administration (or State) of comple-
tion of the response action, if the Administrator (or the
State) determines in writing, based on review of records
or sampling data following completion of the response ac-
tion, that the response was not substantially completed.
(f) REPORTING
AND RECORDKEEPING REQUIRE-
MENTS.—
(1) REPORTING.—A person conducting a re-
sponse pursuant to this Act shall submit an quar-
terly progress report to the Administrator (or the
State, if authorized) for the first 2 years and annual
reports thereafter. The final report shall be filed
when response action is completed. The reports shall
include—
(A) a description of the actions which have
been taken in accordance with the approved re-
sponse action plan; and
(B) the results of sampling and analysis
required by the response action plan generated
during the prior year.
(2) RECORDKEEPING.—A person conducting a
response under this Act shall document the actions
taken and maintain, for five years after the person
submits a certification under subsection (f) to the
appropriate agency, each of the following records—
(A) The notification to the Administrator
and the State required by subsection (a).
(B) The facility investigation report.
(C) The response action plan.
(D) All data required to be generated by
the response action plan, including post-re-
sponse verification data, and analysis of trends.
(E) The certification submitted pursuant
to subsection (f) demonstrating that the re-
sponse is complete and in compliance with the
response action plan.
(g) CERTIFICATION.—(1) Upon completion of the re-
sponse, a person conducting a response under this Act
shall submit to the Administrator (or the State, if author-
ized), a certification that the response has been completed
in accordance with the approved response action plan. The
certification shall include the information required under
subsection (f)(1) and all post-response verification data re-
quired by the response action plan. For response action
plans that require operation and maintenance or monitor-
ing for a period exceeding 2 years, the certification may
be submitted at the completion of any other work required
by the approved response action plan. The certification
shall be signed by the duly authorized representative of
the person conducting the response and an independent
registered professional engineer.
(2) The Administrator (or State, if authorized) shall
approve or disapprove of a response action plan under this
Act, or exercise the authority provided in subsection (e)
to require additional response actions, within 135 days of
submission of the certification provided in paragraph (1)
of this subsection. If no action is taken by the Adminis-
trator (or State, if authorized) within the 135 days, the
owner/operator conducting the response may seek a court
order to require the Environmental Protection Agency (or
State, if authorized) to come to a decision.
SEC. 6. RESPONSE REQUIREMENTS.
Responses conducted pursuant to this Act shall com-
ply with the following requirements—
(1) The response action shall achieve a level of
remediation that complies with all applicable Fed-
eral, State, and local laws, except that in the case
of conflict between the provisions of any such laws
the administrator shall determine the provisions
which shall govern for purposes of this Act.
(2) 100 percent of the costs of carrying out the
response action plan shall be paid by the person car-
rying out the response action or by such person in
conjunction with any other potentially responsible
parties pursuant to any agreement reached among
such parties prior to submission of the plan.
(3) The person carrying out the response action
(such person in conjunction with any other poten-
tially responsible parties pursuant to an agreement
reached among such parties prior to submission of
the plan) shall reimburse Administrator (or the
State, if authorized) for 100 percent of the reason-
able and necessary documented direct costs incurred
by the Administrator (or State, if authorized) in re-
viewing the response action plan and overseeing the
response.
(4) All response actions shall be conducted by
a person or person approved by the Administrator
(or the State, if authorized).
(5) Responsibility is assigned, and mechanism
for assuring funding is provided, for all post-re-
sponse action monitoring, operation and mainte-
nance and long-term response action deemed nec-
essary by the Administrator (or State, if author-
ized).
SEC. 7. RELATIONSHIP WITH OTHER LAWS.
(a) PRIVATE COST RECOVERY CLAIMS.—Responses
conducted in accordance with the terms and conditions of
this Act and in accordance with a response action plan
approved under this Act shall be deemed consistent with
the National Contingency Plan for purposes of private cost
recovery claims under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42
U.S.C. 9601 and following).
(b) EFFECT OF RESPONSE.—Performance of a re-
sponse pursuant to this Act shall not constitute an admis-
sion of liability under any Federal, State, or local laws
or regulations or in any private action nor shall such per-
formance be admissible as evidence in any citizen’s suit
or private action brought under any of the statutes speci-
fied in section 109(b) of this Act.
SEC. 8. ENFORCEMENT.
Whenever the Administrator (or the State, if author-
ized) determines that any person has failed to comply with
the terms or conditions of an approved response action
plan, the Administrator (or the State, if authorized) may
issue an order requiring compliance with such term or con-
dition. If the person fails to comply with the order, a civil
penalty of not more than $25,000 per day of violation may
be assessed by the Administrator (or the State, if author-
ized) for the violation of the term or condition of an ap-
proved response action plan identified in the order. In de-
termining the amount of any penalty assessed pursuant
to this subsection, the Administrator (or the State, if au-
thorized) shall take into account the nature, cir-
cumstances, extent and gravity of the violation, any good-
faith efforts to comply with the terms and conditions of
the response action plan, the degree of culpability or the
economic benefit (if any) resulting from the violation, any
prior history of such violation, and such other matters as
justice may require. No penalty may be assessed under
this subsection unless the person accused of the violation
is given notice and opportunity for a hearing with respect
to the violation.
SEC. 9. COVENANT NOT TO SUE.
(a) IN GENERAL.—Upon the receipt of a certification
under section 5(g) with respect to any facility, unless the
Administrator (or State, if authorized) takes action under
section 5(e), upon the request of the facility owner or oper-
ator, the Administrator shall enter into a covenant not to
sue the facility owner or operator any other potentially re-
sponsible parties participating in the response action with
respect to that facility for civil liability under section 106
or 107(a) of the Comprehensive Environmental Response,
Compensation and Liability Act or section 7003 of the
Solid Waste Disposal Act. Nothing in this Act shall affect
the criminal liability of any person under any authority
of Federal or State law. The site may be restored to the
National Priorities List if the covenant not to sue is vio-
lated by the facility owner or operator.
(b) RESERVATIONS.—Each covenant not to sue en-
tered into under this Act shall expressly reserve the Ad-
ministrator’s rights to assert all claims against any party
to the covenant except for a claim based on any condition
set forth in section 5(e).
(c) REMOVAL FROM NPL.—Upon issuance of a cov-
enant not to sue under subsection (b) with respect to any
facility, the Administrator shall remove the facility from
the National Priorities List under the Comprehensive En-
vironmental Response, Compensation and Liability Act of
1980.
(d) REFUSAL TO ENTER COVENANT.—The Adminis-
trator may establish guidelines for situations in which it
is not in the public interest for the Administrator to enter
into a covenant not to sue under this section. In any case
in which the Administrator refuses to enter into a cov-
enant not to sue, the Administrator shall issue a written