I
104TH CONGRESS
1ST SESSION
H. R. 1616
To amend the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 to provide a process for the allocation of liability
among potentially responsible parties at Superfund sites.
IN THE HOUSE OF REPRESENTATIVES
MAY 11, 1995
Mr. UPTON (for himself and Mr. BOUCHER) introduced the following bill;
which was referred to the Committee on Commerce, and in addition to
the Committee on Transportation and Infrastructure, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jursidiction of the committee con-
cerned
A BILL
To amend the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 to provide a process
for the allocation of liability among potentially respon-
sible parties at Superfund sites.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. ALLOCATION OF LIABILITY AT MULTIPARTY
FACILITIES UNDER SUPERFUND.
The Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 is amended by insert-
ing the following new section after section 126:
‘‘SEC. 127. ALLOCATION AT MULTIPARTY FACILITIES.
‘‘(a) SCOPE.—
‘‘(1) POST-INTRODUCTION
RODS.—For each
non-federally owned facility listed on the National
Priorities List involving 2 or more potentially re-
sponsible parties for which the President selects a
remedial action on or after February 3, 1995, the
Administrator shall initiate the allocation process
under this section. This paragraph shall not apply to
response actions selected prior to such date.
‘‘(2) PRE-INTRODUCTION RODS.—For each non-
federally owned facility listed on the National Prior-
ities List involving 2 or more potentially responsible
parties, for any remedial action selected by the
President before February 3, 1995, the Adminis-
trator shall initiate the allocation process under this
section, if requested to do so by a potentially respon-
sible party which has resolved its liability to the
United States with respect to the remedial action or
which is performing the remedial action pursuant to
an order issued under section 106(a).
‘‘(3) OTHER FACILITIES.—The Administrator,
as the Administrator deems appropriate, may initi-
ate the allocation process under this section for any
facility other than a facility referred to in paragraph
(1) or (2) involving 2 or more potentially responsible
parties.
‘‘(4) EXCLUDED
FACILITIES.—The allocation
process under this section shall not apply to any of
the following:
‘‘(A) A facility for which there has been a
final settlement, decree, or order that deter-
mines all liability or allocated shares of all po-
tentially responsible parties.
‘‘(B) A facility at which all of the poten-
tially responsible parties are liable or potentially
liable as facility owners or operators pursuant
to section 107(a)(1) or (2).
‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An allo-
cation under this section, shall apply to all remedial
actions selected by the President on or after Feb-
ruary 3, 1995, for a facility (but not to those reme-
dial actions described in paragraph (2)), unless the
allocator determines that the allocation should ad-
dress only one or more of such remedial actions.
‘‘(6) MULTIPLE
FACILITIES.—Where appro-
priate, the Administrator may initiate a single allo-
cation process under this section for more than 1 fa-
cility.
‘‘(7) EFFECT OF ALLOCATION.—An allocation
performed pursuant to paragraph (2) or (3) of this
section shall not be construed to require—
‘‘(A) payment of an orphan share pursuant
to this section; or
‘‘(B) the conferral of reimbursement rights
pursuant to this section.
‘‘(8) SETTLEMENT OFFERS AFTER COMMENCE-
MENT OF LITIGATION.—The provisions of this sec-
tion shall not apply to any offer of settlement made
after expiration of the moratorium period under sub-
section (b).
‘‘(b) MORATORIUM
ON COMMENCEMENT
OR CON-
TINUATION OF SUITS.—
‘‘(1) MORATORIUM.—No person may assert any
claim for response costs pursuant to section 107 of
this Act or commence any civil action seeking recov-
ery of any response costs in connection with a re-
sponse action for which an allocation is required
under subsection (a)(1) or (2), or for which the Ad-
ministrator has initiated an allocation under sub-
section (a)(3), until 90 days after issuance of the
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 of this
Act or an action seeking recovery of response costs
in connection with a response action for which an al-
location is to be performed under this section is
pending—
‘‘(A) upon the date of enactment of the
Superfund Reform Act of 1994, 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) has been issued by the allocator:
‘‘(A) The date of listing of the facility on
the National Priorities List.
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.
‘‘(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 and submit a written
settlement offer to each party notified pursuant
to this subparagraph no later than 60 days
after such notification;
‘‘(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 entitled to 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 shall be supported by full
disclosure to the Administrator of all available infor-
mation concerning that party’s liability and con-
tribution of hazardous substances to the site.
‘‘(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 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 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) De minimis parties the Administrator
identifies as potentially liable but entitled to expe-
dited settlement pursuant to this section, shall not
be subject to, or assigned a share in, the allocation
(except to the extent required to determine the or-
phan 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
following 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
expedited settlement,
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
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.
‘‘(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 in-
cluding the Administrator’s determinations under
subparagraph (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 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.
‘‘(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 small business, as defined in sec-
tion 101(47).
‘‘(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.—(A) The allocation parties shall se-
lect an allocator from the list of allocators proposed
by the Administrator or under paragraph (1) by the
following voting method with each allocation party
having a single vote:
‘‘(i) 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).
‘‘(ii) 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 determined to be the
allocator.
‘‘(B) The Administrator may cast the votes of
identified but insolvent or defunct parties.
‘‘(3) PEREMPTORY
STRIKE.—The Adminis-
trator may reject any allocator selected by the allo-
cation parties if the proposed allocator is not on the
list provided under paragraph (6)(B) of subsection
(c). In the case of any such rejection, the allocation
parties shall select the allocator in order of numeri-
cal ranking in accordance with this subsection.
‘‘(4) 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, and
immediately make available all responses to information
requests, as well as other relevant information concerning
the facility and potentially responsible parties, to the allo-
cator. The Administrator has the authority to use the pro-
cedures 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 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
recoverable 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 signatory to the proposed private allocation or, in
the case of any orphan share, unless the United
States is a signatory to the proposed private alloca-
tion.
‘‘(3) The signatories to the proposed private al-
location waive their contribution rights with respect
to the remedial action against all other potentially
responsible parties at the facility.
‘‘(h) ALLOCATION DETERMINATION.—
‘‘(1) 
SETTLEMENT
AND
ALLOCATION
RE-
PORT.—Following issuance of the final list of alloca-
tion parties 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 alloca-
tion of the percentage shares of responsibility of all
allocation parties, including the orphan share, for
the facility, and provide such report to the allocation
parties and the Administrator. The allocator shall
provide the report to the allocation parties and the
Administrator 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
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, on the basis of the information pre-
sented, is specifically attributable to alloca-
tion parties that are contributors of munic-
ipal solid waste subject to the limitations
in section 107(a)(6), and the share actu-
ally assumed by those parties in any settle-
ments with the United States pursuant to
section 122(g), including the fair market
value of in-kind services provided by a mu-
nicipality.
‘‘(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 with a limited ability to
pay response costs and the share actually
assumed by those parties in any settle-
ments with the United States pursuant to
section 122(g).
‘‘(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.
‘‘(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
makes any false material statement or representa-
tion in the response to an allocator’s information re-
quest 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, Unit-
ed 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 ALLOCATOR’S REPORT.—The
Administrator and the Attorney General of the United
States may reject the allocator’s report if they jointly de-
termine that—
‘‘(1) no rational interpretation of the facts be-
fore the allocator, in light of the factors required to
be considered, 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 General 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 Ad-
ministrator and the Attorney General under this sub-
section shall not be judicially reviewable. No such deter-
mination 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 Act-
ing 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
rejects an allocator’s report, the parties shall select a new
allocator pursuant to subsection (e) to perform, on an ex-
pedited basis, a new allocation based on the same record
available to the first allocator. The moratorium on com-
mencement of litigation and tolling of statutes of limita-
tion 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 Presi-
dent may, following the expiration of the moratorium on
commencement of litigation, commence an action under
section 107.
‘‘(n) NEW INFORMATION.—Any settling party, in-
cluding the United States, may seek a new allocation pur-
suant to subsection (h), where that party presents clear
and convincing information or the United States otherwise
determines on the basis of clear and convincing informa-
tion 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 issuance 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
‘‘(2) EXPLANATION OF REFUSAL TO SETTLE.—
If the Administrator and the Attorney General de-
termine not to settle on the basis of the allocation,
they shall provide the allocation parties and mem-
bers of the affected community with a written expla-
nation of the Administrator’s determination.
‘‘(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 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 per-
formance or adequate assurance of performance
of response 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 United States litigation risk with respect to
potentially responsible parties who have not re-
solved their liability to the United States, ex-
cept that no such premium shall apply if all
parties settle or the settlement covers 100 per-
cent of response costs.
‘‘(D) Contribution protection, consistent
with section 113(f), regarding matters ad-
dressed in the settlement. Such settlement does
not discharge any of the other potentially re-
sponsible parties unless its terms so provide,
but it reduces the potential liability of the oth-
ers 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 as-
sumed by a settling party, where settlements
(and any orphan share identified by the allo-
cator) account for 80 percent or more of re-
sponsibility at the facility.
‘‘(B) Ten 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 60 percent and
less than 80 percent of responsibility at the fa-
cility.
‘‘(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 fa-
cility.
‘‘(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 promul-
gate regulations to modify the premia percentages
established in this subsection. The Administrator
may not propose a rule before the date 36 months
after the enactment of this section, and no such rule
may take effect before the date 48 months after the
enactment of this section. Such rule must be based
upon an administrative record establishing that such
modification is necessary to reflect actual experience
regarding the litigation risk faced by the United
States in proceeding against nonsettling parties
under this section.
‘‘(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 his
duty to reimburse settling parties under this section
pursuant to such reasonable procedures as the Ad-
ministrator 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
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 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
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.—
‘‘(A) 
INCLUDED
AS
COSTS
OF
RE-
SPONSE.—The costs of implementing the alloca-
tion procedure set forth in this section, includ-
ing reasonable fees and expenses of the allo-
cator, shall be considered necessary costs of re-
sponse for purposes of this Act.
‘‘(B) ORPHAN SHARE.—The costs attrib-
utable to any funding of orphan shares identi-
fied by the allocator pursuant to subsection
(e)(4) also shall be considered necessary costs
of response for purposes of this Act, and shall
be recoverable from liable parties who do not
resolve their liability on the basis of the alloca-
tion.
‘‘(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 (o) 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.
‘‘(q) REIMBURSEMENT FOR UAO PERFORMANCE.—
‘‘(1) REIMBURSEMENT.—Parties who satisfac-
torily perform work under an administrative order
issued under section 106(a) with respect to a reme-
dial action for which an allocation is required by
subsection (a)(1), shall be entitled to reimbursement
for the reasonable and necessary costs of work they
perform in excess of the share assigned to them in
the allocation in accordance with the provisions of
this section, provided that the allocation report is
not rejected by the United States and, that, at the
end of the moratorium following the allocation, the
performing party, in consideration of such reim-
bursement—
‘‘(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) receives no covenant not to sue;
‘‘(C) agrees that its reimbursement shall
be reduced by an amount equal to the maxi-
mum litigation risk premium provided for in
subsection (o)(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);
‘‘(D) 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) LIMIT ON ORPHAN SHARE FUNDING.—The
amount of orphan share funding available to the
performing party shall be further limited as follows:
‘‘(A) Performing parties who fully waive
their right to challenge remedy selection at the
end of the moratorium following allocation shall
be entitled to full reimbursement of costs in ex-
cess of the party’s share and attributable by the
allocator to the orphan share paid in nominal
dollars after the work is completed, but no
sooner than completion of the construction of
the remedial action.
‘‘(B) Performing parties who retain their
right to challenge the remedy shall be reim-
bursed for 90 percent of orphan share funding,
paid in nominal dollars after the work is com-
pleted, but no sooner than completion of the
construction of the remedial action, unless the
orphan share is less than 20 percent of respon-
sibility at the site, in which case such parties
shall be reimbursed only 80 percent of the or-
phan share.
For purposes of this subsection ‘nominal dollars’
means actual dollars spent by the performing party,
without increase for interest or inflation.
‘‘(5) NONORPHAN SHARE REIMBURSEMENT.—
Reimbursement for work in excess of the performing
party’s allocated share but that is not attributable to
the orphan share shall be paid in nominal dollars
after work is completed, but no sooner than comple-
tion of the construction of the remedial action, pro-
vided that the performing party is entitled to all in-
terest (prejudgment and post judgment, whether re-
covered from a party or earned in a site account)
that has accrued on money recovered by the United
States from other parties for such work at the time
construction of the remedy is completed.
‘‘(6) 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.
The Administrator may require independent auditing
of any claim for reimbursement.
‘‘(r) FUNDING OF ORPHAN SHARES.—From funds
available in the Fund in any given fiscal year, and without
further appropriation action, the President shall make re-
imbursements from the Fund, to eligible parties for costs
incurred and equitably attributable to orphan shares de-
termined pursuant to this section, provided that Fund fi-
nancing of orphan shares shall not exceed $300,000,000
in any fiscal year. Reimbursements made under this sub-
section shall be subject to such terms and conditions as
the President may prescribe.
‘‘(s) PROCEDURES.—The Administrator, after con-
sultation with the Attorney General, may promulgate rules
(or guidance) of Agency organization, procedure, and
practices but shall not have additional authority, except
as specifically set forth in this section, to promulgate rules
or publish guidance to restrict the allocator’s discretion
in the conduct of the allocation.
‘‘(t) 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.
‘‘(u) REPRESENTATION
OF
THE UNITED STATES
AND AFFECTED STATES.—The Administrator and the At-
torney General, and a representative of any State that
may be responsible for a portion of the orphan share, shall
be entitled to review all documents and participate in any
phase of the allocation proceeding.
‘‘(v) 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.
‘‘(w) 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-