114
‘‘(C) determine that there is insufficient in-
formation to ascertain whether or not the party
is entitled to such expedited settlement.
‘‘(5) NOMINATION OF PARTIES.—(A) For 60 days
after information has been made available pursuant
to paragraph (3), the parties identified by the Admin-
istrator and members of the affected community shall
have the opportunity to identify and nominate addi-
tional potentially responsible parties or otherwise
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 poten-
tially responsible party shall be supported by full dis-
closure to the Administrator of all available informa-
tion concerning that party’s liability and contribu-
tion of hazardous substances to the site.
‘‘(6) LIST OF ALLOCATION PARTIES.—(A) Within
60 days after the end of the period specified in para-
graph (5)(A) for the proposal of additional parties,
the Administrator shall—
‘‘(i) issue a list of parties subject to the allo-
cation process (hereinafter referred to in this sec-
tion as the ‘allocation parties’);
115
‘‘(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 potentially liable.
For each party identified under clause (iii), the Ad-
ministrator shall further identify whether that party,
if liable, would be eligible for an expedited settlement.
‘‘(B) At the time of issuance of the list of parties
provided for in subparagraph (A), the Administrator
shall provide the potentially responsible parties who
received notice under this paragraph with a list of
116
neutral parties who are not employees of the United
States and who the Administrator determines, in the
Administrator’s sole discretion, are qualified to per-
form an allocation at the facility.
‘‘(C) De minimis parties the Administrator iden-
tifies as potentially liable but entitled to expedited
settlement pursuant to this section, shall not be sub-
ject to, or assigned a share in, the allocation (except
to the extent required to determine the orphan share
pursuant to subsection (h)), unless that party fails to
reach an agreement with the President on settlement
terms within 30 days after the offer.
‘‘(D) If the Administrator determines that there
is an inadequate basis in law or fact to conclude that
a party is liable based on the information presented
by the nominating party or otherwise available to the
Administrator, the determination shall have the fol-
lowing effect:
‘‘(i) With respect to a party that the Ad-
ministrator has determined to be—
‘‘(I) exempt from liability pursuant to
section 107(a)(6)(A) or (B); or
‘‘(II) not liable on some other basis but
who, if liable, would be eligible for an expe-
dited settlement,
117
the Administrator’s determination shall mean
that the party shall not be subject to, and shall
not be assigned a share in, the allocation.
‘‘(ii) With respect to all other parties, the
Administrator’s determination shall be accorded
deference by the allocator. For such parties the
allocator shall consider the Administrator’s de-
termination together with the allocation factors
listed in subsection (h)(2).
‘‘(E) The Administrator’s determinations for
purposes of this subsection shall not be subject to judi-
cial 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 subject
of the determination or any other party.
‘‘(F) The allocator may assign a zero share to
any party the allocator deems should receive such a
share in consideration of the allocation factors includ-
ing the Administrator’s determinations under sub-
paragraph (C).
‘‘(G) If a party is included in the allocation
pursuant to the nomination of a potentially respon-
sible party pursuant to subsection (c)(5), but assigned
a zero share by the allocator, that party’s costs of par-
118
ticipating in the allocation (including reasonable at-
torneys’ fees) shall be borne by the party who pro-
posed 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.
‘‘(2) The President shall not include any premia pur-
suant to section 122(g) in a settlement offer made pursuant
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 small business, as defined in section 101(47).
‘‘(e) SELECTION OF ALLOCATOR.—
‘‘(1) PROPOSAL OF ADDITIONAL CANDIDATES.—
Any party identified by the Administrator under sub-
section (c) may propose any person whom such party
deems qualified for selection as an allocator in addi-
tion to those proposed from the list provided under
subsection (c)(6)(B).
119
‘‘(2) SELECTION OF ALLOCATOR BY ALLOCATION
PARTIES.—(A) The allocation parties shall select an
allocator from the list of allocators proposed by the
Administrator or under paragraph (1) by the follow-
ing voting method with each allocation party having
a single vote:
‘‘(i) Each allocation party, with the Admin-
istrator voting for the identified but insolvent or
defunct parties, shall numerically rank the indi-
viduals on the final list of proposed allocators,
with a ranking of 1 indicating first preference,
and forward its vote to the Administrator within
30 days of the issuance of the final list of
allocators pursuant to subsection (c)(6)(B).
‘‘(ii) The proposed allocator who receives the
lowest combined numerical score, taking into ac-
count all votes submitted to the Administrator
pursuant to clause (i), and who agrees to serve
as allocator, shall be determined to be the allo-
cator.
‘‘(B) The Administrator may cast the votes of
identified but insolvent or defunct parties.
‘‘(3) PEREMPTORY STRIKE.—The Administrator
may reject any allocator selected by the allocation
parties if the proposed allocator is not on the list pro-
120
vided under paragraph (6)(B) of subsection (c). In the
case of any such rejection, the allocation parties shall
select the allocator in order of numerical ranking in
accordance with this subsection.
‘‘(4) SELECTION OF ALLOCATOR BY EPA.—If the
allocation parties do not select an allocator pursuant
to this subsection within 30 days after receipt of the
list provided under paragraph (2), the Administrator
shall select the allocator, except that if the Adminis-
trator rejects 4 or more allocators selected by the allo-
cation parties, the Administrator shall initiate a new
allocator selection process under this section.
‘‘(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, and
immediately make available all responses to information re-
quests, as well as other relevant 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
121
report as described in subsection (h), any group of poten-
tially responsible parties may submit to the allocator a pri-
vate allocation for the remedial action. If such private allo-
cation 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 100 percent of the past, present, and future re-
coverable costs of the remedial action or operable unit.
‘‘(2) The private allocation does not allocate any
share of response costs to any person who is not a sig-
natory to the proposed private allocation or, in the
case of any orphan share, unless the United States is
a signatory to the proposed private allocation.
‘‘(3) The signatories to the proposed private allo-
cation waive their contribution rights with respect to
the remedial action against all other potentially re-
sponsible parties at the facility.
‘‘(h) ALLOCATION DETERMINATION.—
‘‘(1) SETTLEMENT AND ALLOCATION REPORT.—
Following issuance of the final list of allocation par-
ties pursuant to subsection (c)(6)(A)(i), the allocator
shall initiate and conduct an allocation process that
shall culminate in the issuance of a written report,
with a nonbinding, equitable allocation of the percent-
age shares of responsibility of all allocation parties,
122
including the orphan share, for the facility, and pro-
vide such report to the allocation parties and the Ad-
ministrator. The allocator shall provide the report to
the allocation parties and the Administrator within
180 days of the issuance of the list of allocation par-
ties pursuant to subsection (c)(6) or the date of the
contract for allocation service pursuant to subsection
(f), whichever is later. Upon request, for good cause
shown, the Administrator may grant the allocator ad-
ditional 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 allo-
cation party in the generation, transportation,
treatment, storage, or disposal of the hazardous
substance.
123
‘‘(E) The degree of care exercised by each al-
location party with respect to the hazardous sub-
stance, taking into account the characteristics 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)(2)
or (3).
‘‘(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 op-
124
portunity to comment on a draft allocation report.
The allocator shall not be required to respond to com-
ments.
‘‘(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 con-
sist 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 in-
solvent or defunct allocation parties who are
not affiliated with any viable allocation
party.
‘‘(ii) The difference between the aggre-
gate shares that the allocator determines, on
the basis of the information presented, is
specifically attributable to allocation parties
that are contributors of municipal solid
waste subject to the limitations in section
107(a)(6), and the share actually assumed
by those parties in any settlements with the
United States pursuant to section 122(g),
125
including the fair market value of in-kind
services provided by a municipality.
‘‘(iii) The difference between the aggre-
gate share that the allocator determines, on
the basis of information presented, to be
specifically attributable to allocation parties
with a limited ability to pay response costs
and the share actually assumed by those
parties in any settlements with the United
States pursuant to section 122(g).
‘‘(B) UNATTRIBUTABLE
SHARES.—Shares
attributable to hazardous substances that the al-
locator cannot attribute to any identified party
shall be distributed among the allocation parties,
including the orphan share.
‘‘(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 in-
formation 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
126
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 al-
locator may also request the Administrator to utilize
the authorities of paragraph (2) and to exercise any
information-gathering authority of the Administrator
under this Act.
‘‘(2) POWERS OF THE ALLOCATOR.—In addition
to the information-gathering authority set forth in
paragraph (1), the allocator shall have the authority
to schedule meetings and require the attendance of al-
location parties at such meetings; to require that allo-
cation parties wishing to present similar legal or fac-
tual positions consolidate their presentations; to ob-
tain or employ support services, including 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 im-
partial 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
128
response to the allocator within 30 days of a request
for enforcement of a subpoena or information request,
the allocator may retain counsel to commence a civil
action to enforce the subpoena or information request.
‘‘(4) PENALTY.—If the Attorney General or allo-
cator 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 in-
clude civil penalties as provided in paragraph (1).
The court shall require such party to pay the reason-
able expenses, including attorney’s fees, caused by the
failure to comply, unless the court finds that the fail-
ure was substantially justified or that other cir-
cumstances make an award of expenses unjust.
‘‘(5) CRIMINAL.—Any person who knowingly
makes any false material statement or representation
in the response to an allocator’s information 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.—
129
‘‘(1) DOCUMENT
REPOSITORY.—The allocator
shall establish and maintain a document repository
containing copies of all documents and information—
‘‘(A) provided by the Administrator pursu-
ant to this section,
‘‘(B) provided or generated by the allocation
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 ma-
terials submitted to the allocator or placed in the doc-
ument repository, together with the record of any in-
formation generated or obtained during the allocation
130
process, shall be confidential. The allocator, each allo-
cation party, the Administrator, and the Attorney
General shall maintain such documents and mate-
rials, together with the record of any information gen-
erated or obtained during the allocation, as confiden-
tial 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, Unit-
ed States Code. Such material shall not be discover-
able or admissible in any other Federal, State, or
local judicial or administrative proceedings, 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 authorize
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 authorized Com-
mittee thereof, to obtain such documents or informa-
tion. Any person disclosing such documents or infor-
mation to Congress shall notify the person who pro-
131
duced 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 discoverable
or admissible, then such original document, if subse-
quently sought from such party, shall remain so. If a
fact generated or obtained during the allocation was,
in the hands of a witness, otherwise discoverable or
admissible, then such fact, if subsequently sought from
such other party, shall remain so.
‘‘(4) NO WAIVER OF PRIVILEGE.—The submission
of, documents, or information pursuant to the alloca-
tion process shall not be deemed to be a waiver of any
privilege, applicable to such documents or informa-
tion under any Federal or State law or rule of discov-
ery 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
132
notify the person who originally submitted such item
and, except in the case of a request from the Congress
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 per-
son not a party to such allocation, other than the
Congress or a duly authorized committee thereof, ex-
cept 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 information
in violation of this section shall be subject to civil
penalties of up to $25,000 per violation. Such pen-
alties 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 failure
to maintain confidentiality.
‘‘(l) REJECTION OF ALLOCATOR’S REPORT.—The Ad-
ministrator and the Attorney General of the United States
may reject the allocator’s report if they jointly determine
that—
133
‘‘(1) no rational interpretation of the facts before
the allocator, in light of the factors required to be con-
sidered, would form a reasonable basis for the shares
assigned to the parties;
‘‘(2) the allocation was affected by bias, fraud, or
unlawful conduct; or
‘‘(3) the allocation was substantially and di-
rectly affected by procedural error.
The allocator’s report may not be rejected after the United
States has accepted a settlement offer (excluding de minimis
or other expedited settlements under section 122(g)) based
on the allocation. The Administrator and the Attorney Gen-
eral shall make any such determination within 180 days
after the receipt of the first offer based on the allocator’s
report. The determinations of the Administrator and the At-
torney General under this subsection shall not be judicially
reviewable. No such determination may be delegated to any
officer or employee of the Environmental Protection Agency
or the Department of Justice below the level of an Assistant
Secretary or Acting Assistant Secretary with authority for
implementing this Act at the Environmental Protection
Agency or the Department of Justice.
‘‘(m) SECOND ALLOCATION.—If the United States re-
jects an allocator’s report, the parties shall select a new allo-
cator pursuant to subsection (e) to perform, on an expedited
134
basis, a new allocation based on the same record available
to the first allocator. The moratorium on commencement
of litigation and tolling of statutes of limitation set forth
in subsection (b) shall be extended until 90 days after the
issuance of the second allocation report. If the United States
rejects the second allocation the President may, following
the expiration of the moratorium on commencement of liti-
gation, commence an action under section 107.
‘‘(n) NEW INFORMATION.—Any settling party, includ-
ing the United States, may seek a new allocation pursuant
to subsection (h), where that party presents clear and con-
vincing information or the United States otherwise deter-
mines on the basis of clear and convincing information
that—
‘‘(1) the allocator did not have information con-
cerning 35 percent or more of the materials contain-
ing hazardous substances at the facility, and that this
information has been discovered subsequent to the is-
suance of the allocator’s report; or
‘‘(2) the allocator did not have information con-
cerning a person not subject to the allocation who
contributed 15 percent or more of materials contain-
ing hazardous substances at the facility, and that this
information has been discovered subsequent to the is-
suance of the allocator’s report.
135
Determinations by the United States pursuant to this sub-
section shall not be subject to judicial review.
‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—
‘‘(1) ACCEPTANCE
OF
OFFERS.—If, within 90
days after issuance of the allocator’s report for an al-
location conducted under subsection (a)(1), an alloca-
tion party—
‘‘(A) makes a written offer to settle with re-
spect to the response action based on the percent-
age share specified by the allocator and on the
additional terms and conditions of settlement
(other than the allocated percentage share) that
are acceptable to the President, and
‘‘(B) is not in default on any information
requests under this Act,
then the President shall not seek a higher percentage
share other than the premia authorized by this sec-
tion, unless the President has rejected the offer on a
basis other than the percentage share, or unless the
Administrator and the Attorney General have rejected
the allocation report pursuant to subsection (l).
‘‘(2) EXPLANATION OF REFUSAL TO SETTLE.—If
the Administrator and the Attorney General deter-
mine not to settle on the basis of the allocation, they
shall provide the allocation parties and members of
136
the affected community with a written explanation of
the Administrator’s determination.
‘‘(3) 
SETTLEMENT
PROVISIONS.—Settlements
based on allocated shares shall include each of the fol-
lowing:
‘‘(A) A waiver of contribution rights
against all parties who are potentially respon-
sible parties for the response action, as well as
a waiver of any rights to challenge any settle-
ment the President enters into with any other
potentially responsible party.
‘‘(B) Covenants not to sue, consistent with
section 122(f), and provisions regarding perform-
ance or adequate assurance of performance of re-
sponse actions addressed in the settlement.
‘‘(C) A premium determined on a site spe-
cific basis and subject to the limitations set forth
in paragraph (4), that compensates for the Unit-
ed States litigation risk with respect to poten-
tially responsible parties who have not resolved
their liability to the United States, except that
no such premium shall apply if all parties settle
or the settlement covers 100 percent of response
costs.
137
‘‘(D) Contribution protection, consistent
with section 113(f), regarding matters addressed
in the settlement. Such settlement does not dis-
charge any of the other potentially responsible
parties unless its terms so provide, but it reduces
the potential liability of the others by the
amount of the settlement.
‘‘(E) Provisions through which the settling
parties shall receive reimbursement from the
Fund for any response costs incurred by such
parties in excess of the aggregate of their allo-
cated share and any premia required by the set-
tlement. Such right to reimbursement shall not
be contingent on the United States recovery of
response costs from any responsible person not a
party to any settlement with the United States.
‘‘(4) The premium authorized by paragraph
(3)(C) for litigation risk shall not exceed the follow-
ing:
‘‘(A) Five percent of the total costs assumed
by a settling party, where settlements (and any
orphan share identified by the allocator) account
for 80 percent or more of responsibility at the fa-
cility.
138
‘‘(B) Ten percent of the total costs assumed
by a settling party, where settlements (and any
orphan share identified by the allocator) account
for more than 60 percent and less than 80 per-
cent of responsibility at the facility.
‘‘(C) Fifteen percent of the total costs as-
sumed by a settling party, where settlements
(and any orphan share identified by the allo-
cator) account for more than 40 percent and less
than 60 percent of responsibility at the facility.
‘‘(D) Twenty percent of the total costs as-
sumed by a settling party, where settlements
(and any orphan share identified by the allo-
cator) account for 40 percent or less of respon-
sibility at the facility.
The Administrator shall have authority to promulgate
regulations to modify the premia percentages estab-
lished in this subsection. The Administrator may not
propose a rule before the date 36 months after the en-
actment of this section, and no such rule may take ef-
fect before the date 48 months after the enactment of
this section. Such rule must be based upon an admin-
istrative record establishing that such modification is
necessary to reflect actual experience regarding the
139
litigation risk faced by the United States in proceed-
ing against nonsettling parties under this section.
‘‘(5) AUTHORIZATION OF REIMBURSEMENT.—In
any settlement in which a party agrees to perform re-
sponse work in excess of its share, the Administrator
shall have authority to carry out his duty to reim-
burse settling parties under this section pursuant to
such reasonable procedures 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.
The Administrator may require independent auditing of
any claim for reimbursement.
‘‘(p) POST-ALLOCATION LITIGATION.—
‘‘(1) IN GENERAL.—The United States may com-
mence an action under section 107 against any per-
son 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
140
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 include any federally
funded orphan share identified in accordance with
subsection (h), but shall not include any shares allo-
cated to Federal, State, or local governmental agen-
cies, departments, or instrumentalities. Defendants in
any such action may implead only allocation parties
who did not resolve their liability 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 disproportion-
ate to their contribution to the facility. The applica-
tion 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 Attor-
ney General must certify, in the complaint, that the
United States has been unable to reach a settlement
that would be in the best interests of the United
States. This certification shall not be subject to judi-
cial review.
141
‘‘(3) DEFENDANTS.—No person may commence
an action under section 107 or otherwise seek con-
tribution against any person who was not identified
as an allocation party pursuant to subsection (c) or
subsequently identified as a potentially liable party
under subsection (n) (relating to new information).
‘‘(4) ADMISSIBILITY OF ALLOCATOR’S REPORT.—
The allocator’s report shall not be admissible in any
court for any purpose, except as set forth in this sec-
tion. 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 making an equi-
table allocation of response costs among the relative
shares of nonsettling liable parties.
‘‘(5) COSTS OF ALLOCATION PROCEDURE ON OR-
PHAN SHARE.—
‘‘(A) INCLUDED AS COSTS OF RESPONSE.—
The costs of implementing the allocation proce-
dure set forth in this section, including reason-
able fees and expenses of the allocator, shall be
considered necessary costs of response for pur-
poses of this Act.
‘‘(B) ORPHAN
SHARE.—The costs attrib-
utable to any funding of orphan shares identified
by the allocator pursuant to subsection (e)(4)