and not as a result of any violation of this sub-
section.
‘‘(n) FUND REIMBURSABLE SHARE.—The allocator
shall determine the percentage of responsibility, if any, for
the response action(s) that is allocable to the fund reim-
bursable share. The fund reimbursable share shall consist
of the difference between the aggregate share that the allo-
cator determines is attributable to the following categories
of allocation parties and the aggregate share actually as-
sumed by those parties in any settlements with the United
States with respect to the response action(s)—
‘‘(A) any person entitled to a de minimis con-
tributor exemption from retroactive liability under
section 107(n)(1).
‘‘(B) Any person entitled to a reimbursement
for retroactive liability under section 112(g).
‘‘(C) Any person entitled to any other exemp-
tion from or limitation of liability under section
107(n).
‘‘(o) REJECTION OF ALLOCATION REPORT.—The Ad-
ministrator and the Attorney General of the United States
may jointly reject an allocator’s report only if they jointly
publish in the Federal Register, within 120 days after re-
ceipt of the report, a written determination that—
‘‘(1) no reasonable interpretation of the facts
before the allocator, in light of the factors required
to be considered, would form a reasonable basis for
the shares assigned to the parties; or
‘‘(2) the allocation process was directly and
substantially affected by bias, procedural error,
fraud, or unlawful conduct.
The Administrator and the Attorney General may not re-
ject the allocator’s report after the 180th day following
its issuance or after the United States has accepted a set-
tlement offer based on the allocation. The determinations
of the Administrator and the Attorney General under this
subsection shall not be subject to judicial review unless
two successive allocation reports relating to the same re-
sponse action(s) are rejected, in which case any allocation
party may obtain judicial review of the second rejection
pursuant to chapter 7 of title 5, United States Code, in
the United States district court for the district in which
the facility is located. The authority to make such deter-
minations may not be delegated to any officer or employee
below the level of an Assistant Secretary or Acting Assist-
ant Secretary with authority for implementing this Act at
the Environmental Protection Agency or the Department
of Justice.
‘‘(p) SECOND AND SUBSEQUENT ALLOCATIONS.—If
the United States rejects an allocator’s report in accord-
ance with subsection (n), then the allocation parties shall
select an allocator pursuant to subsection (d) to perform,
on an expedited basis, a new allocation based on the same
record available to the previous allocator. In such a case,
the moratorium and tolling provisions of subsection (b)
shall be extended until 90 days after the issuance of the
second or subsequent allocation report. The allocation par-
ties may select an allocator that performed one or more
previous allocations at the same facility, except that the
President may determine pursuant to subsection (d) that
an allocator whose previous report at the same facility has
been rejected under subsection (n) is unqualified to serve.
‘‘(q) SETTLEMENTS BASED ON ALLOCATIONS.—(1)
Any allocation party or group of allocation parties that,
within 90 days after issuance of the allocator’s report, (A)
offers to settle with the United States based on the per-
centage share specified by the allocator, and (B) agrees
to the other terms and conditions set forth in this sub-
section, shall then be entitled to resolve its liability to the
United States on that basis, unless the allocation report
is rejected in accordance with subsection (o), in which case
the provisions of subsection (p) shall apply. If any alloca-
tion party described in the previous sentence receives an
administrative order to perform the response action(s),
then it shall be entitled to resolve its liability to the United
States in accordance with the provisions of subsection (r)
instead.
‘‘(2) Settlements based on allocations under this sec-
tion may consist either of cash-out settlements or agree-
ments for the performance of the response action(s), and
shall include—
‘‘(A) a waiver of contribution rights against all
persons who are potentially responsible parties for
the response action(s);
‘‘(B) covenants not to sue, consistent with the
provisions of section 122(f) of this Act, and, except
in the case of cash-out settlements, provisions re-
garding performance or adequate assurance of per-
formance of the response action(s) addressed in the
settlement;
‘‘(C) a premium, calculated on a site-specific
basis and subject to the limitations set forth in para-
graph (3), that reflects the United States’ actual
risk of not collecting its unrecovered response costs
for the response action(s) despite the diligent pros-
ecution of litigation against all viable allocation par-
ties that have not resolved their liability to the Unit-
ed States, except that no premium shall apply if all
allocation parties settle or if the settlement covers
100 percent of such response costs; and
‘‘(D) protection from all claims for contribution
regarding the response action(s).
‘‘(3) In each settlement pursuant to this section, the
premium authorized by this subsection shall be determined
on a case-by-case basis to reflect the actual litigation risk
faced by the United States with respect to the response
action(s) addressed in the settlement, but in any event
shall not exceed—
‘‘(A) 5 percent of the total costs assumed by a
settling party, where settlements account for more
than 80 percent and less than 100 percent of re-
sponsibility for such response action(s);
‘‘(B) 10 percent of the total costs assumed by
a settling party, where settlements account for more
than 60 percent and no more than 80 percent of re-
sponsibility for such response action(s);
‘‘(C) 15 percent of the total costs assumed by
a settling party, where settlements account for more
than 40 percent and no more than 60 percent of re-
sponsibility for such response action(s); and
‘‘(D) 20 percent of the total costs assumed by
a settling party, where settlements account for 40
percent or less of responsibility for such response
action(s).
The President shall have no authority to modify the per-
centages established herein.
‘‘(r) ADMINISTRATIVE ORDERS; REIMBURSEMENT.—
Upon the expiration of the moratorium period under sub-
section (b)(5), the President may issue orders under sec-
tion 106 of this Act to persons at the facility only if the
aggregate of their allocated percentage shares of respon-
sibility exceeds 50 percent. Any allocation party that is
ordered to perform, and does perform, any response action
that is the subject of an allocation under this section to
an extent that exceeds its percentage share (as determined
by the allocator) shall be entitled to prompt reimburse-
ment of the excess from the Fund unless the allocation
report is rejected pursuant to subsection (o). Such right
to reimbursement shall not be contingent on the United
States’ recovery of any response costs from any other per-
son. The following terms and conditions shall apply to
such reimbursement:
‘‘(1) The reimbursement shall be reduced by
the amount of the litigation risk premium under
subsection (q)(4) that would apply to the allocation
party’s settlement concerning the response action(s),
based on the total allocated shares of the parties
allocation party is in violation of the administrative
order.
‘‘(s) POST-SETTLEMENT LITIGATION.—
‘‘(1) IN GENERAL.—Subject to subsections (p)
and (q), and beginning after 90 days following issu-
ance of the allocator’s report, the United States may
commence an action under this Act against any allo-
cation party that has not resolved its liability to the
United States following an allocation, seeking to re-
cover response costs not recovered through settle-
ments with other persons. All such actions shall be
governed by the principles of liability under this title
as determined by the courts of the United States.
‘‘(2) GOVERNMENT ACTIONS.—In commencing
any action under section 107 against an allocation
party after the expiration of the time period de-
scribed in paragraph (1) of this subsection, the At-
torney General must certify in the complaint that
the defendant has failed or refused to settle the mat-
ter based on the share that the allocation report as-
signed to such party.
‘‘(3) RESPONSE
COSTS.—The costs of imple-
menting the allocation procedure set forth in this
section, including reasonable fees and expenses of
the allocator, shall be considered response costs.
100
‘‘(t) NEW INFORMATION.—Allocations under this sec-
tion shall be final, except that any settling party, including
the United States, may seek a new allocation with respect
to the response action(s) that were the subject of the set-
tlement by presenting the President with clear and con-
vincing evidence that—
‘‘(1) the allocator did not have information con-
cerning—
‘‘(A) 35 percent or more of the materials
containing hazardous substances at the facility;
‘‘(B) one or more persons not previously
named as allocation parties who contributed 15
percent or more of the materials containing
hazardous substances at the facility; or
‘‘(C) other matters that, if known prior to
the issuance of the allocator’s report, could
have served as the basis for rejecting the report
under subsection (o)(1); and
‘‘(2) such information has been discovered sub-
sequent to the issuance of the allocator’s report.
Any new allocation of responsibility shall proceed in ac-
cordance with the provisions of this section, shall be effec-
tive only after the date of the new allocation report, and
shall not alter or affect the original allocation with respect
to response costs previously incurred.
101
‘‘(u) ALLOCATOR’S
DISCRETION.—The President
shall not issue any regulations, rules, or other documents
that limit an allocator’s discretion in the conduct of an
allocation proceeding.’’.
SEC. 208. CIVIL PROCEEDINGS.
(a) PETITIONS.—Section 113(a) (42 U.S.C. 9613(a))
is amended as follows:
(1) By striking ‘‘upon application by any inter-
ested person’’ and inserting ‘‘by any interested per-
son through the filing of a petition for review’’.
(2) By striking ‘‘application shall be made’’,
and inserting ‘‘petition shall be filed’’.
(b) PERIOD IN WHICH ACTION MAY BE BROUGHT.—
Section 113(g) (42 U.S.C. 9613(g)) is amended by strik-
ing paragraphs (2) and (3) and inserting in lieu thereof
the following:
‘‘(2) ACTIONS FOR RECOVERY OF COSTS.—(A)
Except as provided in subparagraph (C), an initial
action for recovery of costs referred to in section
107 must be commenced—
‘‘(i) for a removal action, within 3 years
after completion of all removal action taken
with respect to the facility, including off-site
disposal of any removed materials, except that
if physical on-site construction of the remedial
102
action is initiated within 3 years after the com-
pletion of all removal action taken with respect
to the facility, costs incurred for removal action
may be recovered in a cost recovery action
brought under clause (ii); and
‘‘(ii) for a remedial action, within 6 years
after initiation of physical on-site construction
of the remedial action.
‘‘(B) In any such action described in this para-
graph, the court shall enter a declaratory judgment
on liability for response costs or damages that will
be binding in such action or in any subsequent ac-
tion or actions to recover further response costs or
damages. A subsequent action or actions under sec-
tion 107 for further response costs at the vessel or
facility may be maintained at any time during the
response action, but must be commenced no later
than 3 years after the date of completion of all re-
sponse action. Except as otherwise provided in this
paragraph, an action may be commenced under sec-
tion 107 for recovery of costs at any time after such
costs have been incurred.
‘‘(C) An action by any potentially responsible
party against another potentially responsible party
103
for recovery of any response costs or damages must
be commenced within the later of—
‘‘(i) the time limitations set forth in sub-
paragraph (A); or
‘‘(ii) where recovery is sought for costs or
damages paid pursuant to a judgment or settle-
ment, 3 years after—
‘‘(I) the date of judgment in any ac-
tion under this Act for recovery of such
costs or damages, or
‘‘(II) the date of any administrative
order or judicial settlement for recovery of
the costs or damages paid or incurred pur-
suant to such a settlement.’’.
SEC. 209. LIMITATIONS ON CONTRIBUTION ACTIONS.
Section 113(f) (42 U.S.C. 9613(f)) is amended as fol-
lows:
(1) By amending paragraph (1) as follows:
(A) By striking ‘‘Any person’’ in the first
sentence and inserting ‘‘Except as provided in
paragraph (4), any person who is liable or po-
tentially liable under section 107(a)’’.
(B) By striking ‘‘, during or following any
civil action under section 106 or under section
104
107(a).’’ and inserting ‘‘in a claim asserted
under section 107(a).’’.
(C) In the second sentence, by striking
‘‘this section’’ and inserting ‘‘section 107(a),
this section,’’.
(D) By striking the sentence beginning
with ‘‘Nothing in this subsection’’.
(2) By amending paragraph (2) to read as fol-
lows:
‘‘(2) SETTLEMENTS.—A person who has re-
solved its liability to the United States in an admin-
istrative or judicially approved settlement shall not
be liable for contribution or any other claims by any
person other than a State acting under section
107(a)(4)(A) (and not as a potentially responsible
party) regarding response actions, response costs, or
damages addressed in the settlement. A person who
has resolved its liability to a State or an Indian tribe
in an administrative or judicially approved settle-
ment shall not be liable for contribution or any other
claims by persons other than the United States Gov-
ernment acting under section 107(a)(4)(A) (and not
as a potentially responsible party) regarding re-
sponse actions, response costs or damages addressed
in the settlement for which the State or Indian tribe
106
‘‘(iii) The person from whom contribution
is sought has entered into a settlement with the
United States pursuant to section 122(g), with
respect to matters addressed in that settlement.
‘‘(B) Any person who commences an action for
contribution shall be liable to the person against
whom the claim of contribution is brought for all
reasonable costs of defending against the claim, in-
cluding all reasonable attorneys’ and expert witness
fees, if—
‘‘(i) the action is barred by subparagraph
(A);
‘‘(ii) the action is brought against a person
who is protected from such suits pursuant to
section 113(f)(2) by reason of a settlement with
the United States; or
‘‘(iii) the action is brought during the mor-
atorium pursuant to section 128 (relating to al-
location).’’.
SEC. 210. LIABILITY OF RESPONSE ACTION CONTRACTORS.
(a) EXTENSION OF NEGLIGENCE STANDARD.—Sub-
section (a) of section 119 (42 U.S.C. 9619(a)) is amended
as follows:
(1) In paragraph (1), by striking out ‘‘title or
under any other Federal law’’ and inserting in lieu
107
thereof ‘‘title, under any other Federal law or under
the law of any State or political subdivision of a
State’’.
(2) by adding at the end of paragraph (1) the
following: ‘‘Notwithstanding the preceding sentence,
this section shall not apply in determining the liabil-
ity of a response action contractor under the law of
any State or political subdivision thereof if the State
has adopted, after enactment of the Reform of
Superfund Act of 1995, a law determining the liabil-
ity of a response action contractor.’’.
(3) By adding at the end of paragraph (2) the
following: ‘‘Such conduct shall be evaluated based on
the generally accepted standards and practices in ef-
fect at the time and place that the conduct oc-
curred.’’.
(b) EXTENSION
OF
INDEMNIFICATION
AUTHOR-
ITY.—Section 119(c) is amended by adding at the end of
paragraph (1) the following: ‘‘Any such agreement may
apply to claims for negligence arising under Federal law
or under the law of any State or political subdivision of
a State.’’.
(c) 
INDEMNIFICATION
FOR
THREATENED
RE-
LEASES.—Section 119(c)(5) is amended in subparagraph
108
(A) by inserting ‘‘or threatened release’’ after ‘‘release’’
both places it appears.
(d) CLARIFICATION OF LIABILITY.—Section 119(a)
(42 U.S.C. 9219(a)) is amended by inserting after para-
graph (4) the following new paragraph:
‘‘(5) LIABILITY.—Notwithstanding any other
provision of this Act, any liability of a response ac-
tion contractor under this Act shall be determined
solely in accordance with this section.’’.
(e) LIMITATION
ON
ACTIONS.—Section 119 is
amended by adding at the end the following new sub-
section:
‘‘(g) LIMITATION ON ACTIONS AGAINST RESPONSE
ACTION CONTRACTORS.—No action to recover for any in-
jury to property, real or personal, or for bodily injury or
wrongful death, or any other expenses or costs arising out
of the performance of services under a response action
contract, nor any action for contribution or indemnity for
damages sustained as a result of such injury, shall be
brought against any response action contractor more than
6 years after the completion of work at any site under
such contract. Notwithstanding the preceding sentence,
this section shall not—
109
‘‘(1) bar recovery for a claim caused by the con-
duct of the response action contractor that is grossly
negligent or that constitutes intentional misconduct;
‘‘(2) affect any right of indemnification that
such response action contractor may have under this
section or may acquire by written agreement with
any party; or
‘‘(3) apply in any State or political subdivision
thereof it the State has adopted, after enactment of
the Reform of Superfund Act of 1995, a statute of
repose determining the liability of a response action
contractor.’’.
(f) EXTENSION RELATING TO SURETIES.—(1) Sec-
tion 119(e)(2) is amended in subparagraph (C) by striking
‘‘and before January 1, 1996,’’.
(2) Section 119(g)(5) is amended by striking out ‘‘,
or after December 31, 1995’’.
(g) EXTENSION OF COVERAGE TO ALL RESPONSE
ACTIONS.—Section 119(e)(1) is amended as follows:
(1) By striking ‘‘carrying out an agreement
under section 106 or 122’’.
(2) By striking ‘‘any remedial action under this
Act at a facility listed on the National Priorities
List, or any removal action under this Act,’’ and in-
110
serting in lieu thereof ‘‘any response as defined by
section 101(25),’’.
SEC. 211. ENHANCEMENT OF SETTLEMENT AUTHORITIES.
Section 122 (42 U.S.C. 9622) is amended as follows:
(1) In subsection (b) by striking paragraph (3)
and redesignating paragraph (4) as paragraph (3).
(2) By adding the following new subparagraph
at the end of subsection (d)(1):
‘‘(D) DISPUTE RESOLUTION.—Any consent
decree shall require the parties to attempt expe-
ditiously to resolve disagreements concerning
implementation of the remedial action infor-
mally with the appropriate Federal and State
agencies. Each consent decree shall provide au-
thority for the Federal district court with juris-
diction over the decree to resolve any disagree-
ments not resolved by the parties.’’.
(3) By amending subsection (e)—
(A) By inserting after paragraph (1)(C)
the following:
‘‘(D) For each potentially responsible
party, the evidence that indicates that each ele-
ment of liability contained in section 107(a) is
present.’’.
(B) By striking paragraph (3).
111
(C) By redesignating paragraphs (4) and
(5) as paragraphs (3) and (4), respectively.
(4) By adding at the end of subsection (g)(1)
the following: ‘‘The President may waive any condi-
tion or requirement of subparagraph (B), for a per-
son liable as an owner under section 107(a)(1), if
not more than a de minimis amount of any hazard-
ous substance was released as a result of the genera-
tion, transportation, storage, treatment, or disposal
of hazardous substances at the facility by the owner
and persons affiliated with the owner after the
owner took title, or if the owner and persons affili-
ated with the owner caused or contributed to the re-
lease or threat of release of not more than a de
minimis amount of any hazardous substance at the
facility through any action or omission after the
owner took title.’’.
(5)(A) By transferring paragraph (6) of sub-
section (e) to the end of the section and redesignat-
ing such paragraph as subsection (o).
(B) In subsection (o) (as so transferred and re-
designated), by striking ‘‘remedial action’’ in both
places it appears and inserting ‘‘response action’’,
and by inserting ‘‘or the State under applicable law’’
before the period at the end.
112
(C) By adding the following new subsections at
the end thereof:
‘‘(p) RETENTION OF FUNDS.—(1) If, as part of any
settlement agreement under this Act, a potentially respon-
sible party will be paying amounts to the President for
carrying out any response action, the President may retain
such amounts in interest bearing accounts, and use such
amounts, together with accrued interest, to conduct or en-
able other persons to conduct such response action.
‘‘(2) If, as part of any settlement agreement for car-
rying out a response action under this Act, a potentially
responsible party will be paying amounts to the President,
the Administrator is authorized to accept ownership of a
financial instrument running irrevocably to the benefit of
the United States to conduct, or enable other persons to
conduct, such response actions. For the purposes of this
paragraph, the term ‘financial instrument’ means an an-
nuity contract, funding agreement, or similar instrument
acceptable to the Secretary of the Treasury, that is pur-
chased by one or more potentially responsible parties, and
has a defined schedule of periodic payments which coin-
cides with the obligations set forth in the settlement agree-
ment. Periodic payments under such a financial instru-
ment will be made to the owner, or as the owner directs,
113
for response costs at the facility which is the subject of
the settlement agreement.
‘‘(q) CHALLENGE TO COST RECOVERY COMPONENT
OF SETTLEMENT.—Notwithstanding the limitations on re-
view in section 113(h), and except as provided in sub-
section (g) of this section, a person whose potential claim
for response costs or contribution is limited as a result
of contribution protection afforded by an administrative
settlement under this section may challenge the cost recov-
ery component of such settlement. Such a challenge may
be made only by filing a complaint against the Adminis-
trator in the United States District Court within 60 days
after such settlement becomes final. Venue shall lie in the
district in which the principal office of the appropriate re-
gion of the Environmental Protection Agency is located.
Any review of an administrative settlement shall be limited
to the administrative record, and the settlement shall be
upheld unless the objecting party can demonstrate on that
record that the decision of the President to enter into the
administrative settlement was arbitrary, capricious, or
otherwise not in accordance with law.
‘‘(r) UNSUCCESSFUL CHALLENGERS LIABLE FOR AT-
TORNEY’S FEES.—Any party who challenges any settle-
ment entered into between the President and any poten-
tially responsible party under this Act, and who is not suc-
114
cessful in overturning or modifying the settlement, shall
be liable to the United States and any settling party for
all reasonable attorneys’ fees and costs incurred in defend-
ing the settlement.’’.
SEC. 212. PROFESSIONAL SERVICES.
Section 122 is amended by adding after subsection
(r) the following new subsection:
‘‘(s) PROFESSIONAL SERVICES.—The Administrator
has the authority to use the procedures set forth in section
109(e) to obtain the services of neutral professionals to
assist in the conduct of settlement negotiations under this
section.’’.
SEC. 213. FINAL COVENANTS.
Section 122(f) is amended as follows:
(1) By amending paragraph (1) to read as fol-
lows:
‘‘(1) FINAL COVENANTS.—The President shall
offer potentially responsible parties who enter into
settlement agreements that are in the public interest
a final covenant not to sue concerning any liability
to the United States under this Act, including a cov-
enant with respect to future liability, for response
actions or response costs addressed in the settle-
ment, if all of the following conditions are met:
115
‘‘(A) The settling party agrees to perform,
or there are other adequate assurances of the
performance of, a final remedial action author-
ized by the Administrator for the release or
threat of release that is the subject of the set-
tlement.
‘‘(B) The settlement agreement has been
reached prior to the commencement of litigation
against the settling party under section 106 or
107 of this Act with respect to this facility.
‘‘(C) The settling party waives all contribu-
tion rights against other potentially responsible
parties at the facility.
‘‘(D) The settling party pays a premium
that compensates for the risks of remedy fail-
ure; future liability resulting from unknown
conditions; unanticipated increases in the cost
of any uncompleted response action, unless the
settling party is performing the response action;
and, where applicable, the United States litiga-
tion risk as provided in section 128 (relating to
allocation) with respect to persons who have not
resolved their liability to the United States
under this Act, unless all parties have settled
their liability to the United States, or the settle-
116
ment covers 100 percent of the United States
response costs. The President shall have sole
discretion to determine the appropriate amount
of any such premium, and such determinations
are committed to the President’s discretion.
The President has discretion to waive or reduce
the premium payment for persons who dem-
onstrate an inability to pay such a premium.’’.
(2) Paragraph (3) is amended to read as fol-
lows:
‘‘(3) DISCRETIONARY COVENANTS.—For settle-
ments under this Act for which covenants under sec-
tion 122(f)(1) are not available, the President may,
in his discretion, provide any person with a covenant
not to sue concerning any liability to the United
States under this Act, if the covenant not to sue is
in the public interest. Such covenants shall be sub-
ject to the requirements of section 122(f)(5). The
President may include any conditions in such cov-
enant not to sue, including the additional condition
referred to in paragraph (5). In determining whether
such conditions or covenants are in the public inter-
est, the President shall consider the nature and
scope of the commitment by the settling party under
the settlement, the effectiveness and reliability of the
117
response action, the nature of the risks remaining at
the facility, the strength of evidence, the likelihood
of cost recovery, the reliability of any response ac-
tion or actions to restore, replace, or acquire the
equivalent of injured natural resources, the extent to
which performance standards are included in the
order or decree, the extent to which the technology
used in the response action is demonstrated to be ef-
fective, and any other factors relevant to the protec-
tion of human health and the environment.’’.
(3) Such subsection (f) is amended by striking
paragraph (4) and redesignating paragraphs (5) and
(6) as paragraphs (4) and (5), respectively.
(4) Paragraph (2) is amended by striking ‘‘re-
medial’’ each place it appears and inserting ‘‘re-
sponse’’.
(5) Subparagraph (A) of paragraph (5) (as so
redesignated) is amended—
(A) by striking ‘‘remedial’’ and inserting
‘‘response’’;
(B) by striking ‘‘paragraph (2)’’ in the
first sentence and inserting ‘‘paragraph (1) or
(2)’’;
(C) by striking ‘‘de minimis settlements’’
and inserting ‘‘de minimis and other expedited
118
settlements pursuant to subsection (g) of this
section’’; and
(D) by striking ‘‘the President certifies
under paragraph (3) that remedial action has
been completed at the facility concerned’’, and
inserting ‘‘that the response action that is the
subject of the settlement agreement is se-
lected’’.
(6) Subparagraph (B) of paragraph (5) (as so
redesignated) is amended as follows:
(i) By striking ‘‘In extraordinary cir-
cumstances, the’’ and inserting ‘‘The’’.
(ii) By striking ‘‘those referred to in para-
graph (4) and’’.
(iii) By striking ‘‘if other terms,’’ and in-
serting ‘‘, if the agreement containing the cov-
enant not to sue provides for payment of a pre-
mium to address possible remedy failure or any
releases that may result from unknown condi-
tions, and if other terms,’’.
(iv) By inserting at the end the following:
‘‘The President may, in his discretion, waive or
reduce the premium payment for persons who
demonstrate an inability to pay such a pre-
mium.’’.
119
SEC. 214. EXPEDITED FINAL SETTLEMENTS.
Section 122 is amended as follows:
(1) Subsection (g) is amended by striking ‘‘(g)’’
and all that follows through the end of subparagraph
(A) of paragraph (1) and inserting in lieu thereof
the following:
‘‘(g) EXPEDITED FINAL SETTLEMENT.—
‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET-
TLEMENT.—The President shall, as promptly as pos-
sible, offer to reach a final administrative or judicial
settlement with potentially responsible parties who,
in the judgment of the President, meet one or more
of the following conditions for eligibility for an expe-
dited settlement:
‘‘(A) The potentially responsible party’s in-
dividual contribution of hazardous substances
at the facility is de minimis. The contribution
of hazardous substances to a facility by a po-
tentially responsible party is de minimis if both
of the following conditions are met:
‘‘(i) The potentially responsible par-
ty’s volumetric contribution of materials
containing hazardous substances is mini-
mal in comparison to the total volumetric
contributions of materials containing haz-
ardous substances at the facility; such indi-
120
vidual contribution is presumed to be mini-
mal if it is one percent or less of the total
volumetric contribution at the facility, un-
less the Administrator identifies a different
threshold based on site-specific factors.
‘‘(ii) The potentially responsible par-
ty’s hazardous substances do not present
toxic or other hazardous effects that are
significantly greater than those of other
hazardous substances at the facility.’’.
(2) Subsection (g) is further amended by insert-
ing after subparagraph (B) of paragraph (1) the fol-
lowing:
‘‘(C) The potentially responsible party’s li-
ability is based solely on paragraph (3) or (4)
of section 107(a), and the arrangement for dis-
posal, treatment, or transport for disposal or
treatment, or the acceptance for transport for
disposal or treatment, involved only municipal
solid waste or sewage sludge. The Adminis-
trator may offer to settle the aggregate liability
of generators and transporters of municipal
solid waste or sewage sludge whose liability is
limited pursuant to paragraph (7) of section
121
107(a) for up to 10 percent of the total re-
sponse costs at the facility.
‘‘(D)(i) The potentially responsible party is
a natural person, a small business, or a munici-
pality and can demonstrate to the United
States an inability or limited ability to pay re-
sponse costs. A party who enters into a settle-
ment pursuant to this subparagraph shall be
deemed to have resolved its liability under this
Act to the United States for all matters ad-
dressed in the settlement.
‘‘(ii) For purposes of this subparagraph,
the following provisions apply:
‘‘(I) In the case of a small business,
the President shall take into consideration
the ability to pay of the business, if re-
quested by the business. The term ‘ability
to pay’ means the President’s reasonable
expectation of the ability of the small busi-
ness to pay its total settlement amount
and still maintain its basic business oper-
ations. Such consideration shall include the
business’s overall financial condition and
demonstrable constraints on its ability to
raise revenues.
122
‘‘(II) Any business requesting such
consideration shall promptly provide the
President with all relevant information
needed to determine the business’s ability
to pay.
‘‘(III) The business shall demonstrate
the amount of its ability to pay. If the
business employs fewer than 20 employees,
and has annual gross revenues of less than
$1,800,000 or a net profit margin of less
than 2 percent, the President shall perform
any analysis that may be required to dem-
onstrate the business’s ability to pay. The
President, in his discretion, may perform
such analysis for any other party or re-
quire such other party to perform the anal-
ysis.
‘‘(IV) If the President determines that
a small business is unable to pay its total
settlement amount immediately, the Presi-
dent shall consider alternative payment
methods as may be necessary or appro-
priate. The methods to be considered may
include installment payments to be paid
123
during a period of not to exceed 10 years
and the provision of in-kind services.
‘‘(iii) Any municipality which is a poten-
tially responsible party may submit for consid-
eration by the President an evaluation of the
potential impact of the settlement on essential
services that the municipality must provide, and
the feasibility of making delayed payments or
payments over time. If a municipality asserts
that it has additional environmental obligations
besides its potential liability under this Act,
then the municipality may create a list of the
obligations, including an estimate of the costs
of complying with such obligations.
‘‘(iv) Any municipality which is a poten-
tially responsible party may establish an inabil-
ity to pay through an affirmative showing that
such payment of its liability under this Act
would either—
‘‘(I) create a substantial demonstrable
risk that the municipality would default on
existing debt obligations, be forced into
bankruptcy, be forced to dissolve, or be
forced to make budgetary cutbacks that
124
would substantially reduce current levels of
protection of public health and safety; or
‘‘(II) necessitate a violation of legal
requirements or limitations of general ap-
plicability concerning the assumption and
maintenance of fiscal municipal obliga-
tions.
‘‘(v) This subparagraph does not limit or
affect the President’s authority to evaluate any
person’s ability to pay or to enter into settle-
ments with any person based on that person’s
inability to pay.’’.
(3) Paragraphs (2) and (3) of subsection (g)
are amended to read as follows:
‘‘(2) BASIS OF DETERMINATION.—Any person
who enters into a settlement pursuant to this sub-
section shall provide any information requested by
the President or by an allocator in accordance with
section 128(i)(2) (relating to allocation information-
gathering authority) or section 104(e) of this Act.
The determination of whether a person is eligible for
an expedited settlement shall be made on the basis
of all information available to the President at the
time the determination is made. Neither the Presi-
dent’s determination as to the eligibility of a party
125
that is not a department, agency, or instrumentality
of the United States for settlement pursuant to this
section, nor the terms of the final settlement with
such a party, shall be subject to judicial review. If
the President determines that a party is not eligible
for a settlement pursuant to this section, the Presi-
dent shall explain the basis for that determination in
writing to any person who requests such a settle-
ment.
‘‘(3) ADDITIONAL FACTORS RELEVANT TO SET-
TLEMENTS
WITH
MUNICIPALITIES.—In any settle-
ment with a municipality pursuant to this Act, the
President may take additional equitable factors into
account in determining an appropriate settlement
amount, including the limited resources available to
that party, and any in-kind services that the party
may provide to support the response action at the
facility. In considering the value of in-kind services,
the President shall consider the fair market value of
those services.’’.
(4) Subsection (g) is further amended—
(A) 
in 
paragraph 
(4), 
by 
striking
‘‘$500,000’’ and inserting ‘‘$2,000,000’’; and
(B) by striking paragraph (5).
(5) Subsection (h) is amended as follows:
126
(A) By amending the heading to read as
follows: ‘‘AUTHORITY TO SETTLE CLAIMS FOR
FINES, CIVIL PENALTIES, PUNITIVE DAMAGES,
AND COST RECOVERY.—’’.
(B) In paragraph (1):
(i) In the first sentence, by striking
‘‘costs incurred’’ and inserting ‘‘past and
future costs incurred or that may be in-
curred’’.
(ii) In the first sentence, by inserting
after ‘‘if the claim has not been referred to
the Department of Justice for further ac-
tion.’’ the following: ‘‘The head of any de-
partment or agency with the authority to
seek fines, civil penalties, or punitive dam-
ages under this Act may consider, com-
promise, and settle claims for any such
fines, civil penalties, or punitive damages
which may otherwise be assessed in civil
administrative or judicial proceedings if
the claim has not been referred to the De-
partment of Justice for further action. If
the total claim for response costs, fines,
civil penalties, or punitive damages exceeds
$2,000,000, such claim may be com-
127
promised and settled only with the prior
written approval of the Attorney General.’’.
(C) By striking paragraph (4).
SEC. 215. CLARIFICATION OF LIABILITY FOR RECYCLING
TRANSACTIONS.
Title I is amended by adding after section 128, as
added by section 207, the following new section:
‘‘SEC. 129. RECYCLING TRANSACTIONS.
‘‘(a) LIABILITY CLARIFICATION.—As provided in
subsections (b), (c), (d) and (e), a person who arranged
for the recycling of recyclable material shall not be liable
under section 107(a)(3) or 107(a)(4).
‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur-
poses of this section, the term ‘recyclable material’ means
scrap paper, scrap plastic, scrap glass, scrap textiles,
scrap rubber (other than whole tires), scrap metal, or
spent lead-acid, spent nickel-cadmium and other spent
batteries, as well as minor amounts of material incident
to or adhering to the scrap material as a result of its nor-
mal and customary use prior to becoming scrap.
‘‘(c) TRANSACTIONS
INVOLVING
SCRAP
PAPER,
PLASTIC, GLASS, TEXTILES, OR RUBBER.—Transactions
involving scrap paper, scrap plastic, scrap glass, scrap tex-
tiles, or scrap rubber (other than whole tires) shall be
deemed to be arranging for recycling if the person who
128
arranged for the transaction (by selling recyclable material
or otherwise arranging for the recycling of recyclable ma-
terial) can demonstrate by a preponderance of the evi-
dence that all of the following criteria were met at the
time of the transaction:
‘‘(1) The recyclable material met a commercial
specification grade.
‘‘(2) A market existed for the recyclable mate-
rial.
‘‘(3) A substantial portion of the recyclable ma-
terial was made available for use as a feedstock for
the manufacture of a new saleable product.
‘‘(4) The recyclable material could have been a
replacement or substitute for a virgin raw material,
or the product to be made from the recyclable mate-
rial could have been a replacement or substitute for
a product made, in whole or in part, from a virgin
raw material.
‘‘(5) For transactions occurring 90 days or
more after the date of enactment of this section, the
person exercised reasonable care to determine that
the facility where the recyclable material would be
handled, processed, reclaimed, or otherwise managed
by another person (hereinafter in this section re-
ferred to as a ‘consuming facility’) was in compli-
129
ance with substantive (not procedural or administra-
tive) provisions of any Federal, State, or local envi-
ronmental law or regulation, or compliance order or
decree issued pursuant thereto, applicable to the
handling, processing, reclamation, storage, or other
management activities associated with the recyclable
material.
‘‘(6) For purposes of this subsection, ‘reason-
able care’ shall be determined using criteria that in-
clude (but are not limited to) (A) the price paid in
the recycling transaction; (B) the ability of the per-
son to detect the nature of the consuming facility’s
operations concerning its handling, processing, rec-
lamation, or other management activities associated
with the recyclable material; and (C) the result of
inquiries made to the appropriate Federal, State, or
local environmental agency (or agencies) regarding
the consuming facility’s past and current compliance
with substantive (not procedural or administrative)
provisions of any Federal, State, or local environ-
mental law or regulation, or compliance order or de-
cree issued pursuant thereto, applicable to the han-
dling, processing, reclamation, storage, or other
management activities associated with the recyclable
material. For the purposes of this paragraph, a re-
130
quirement to obtain a permit applicable to the han-
dling, processing, reclamation, or other management
activity associated with the recyclable materials shall
be deemed to be a substantive provision.
‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—(1)
Transactions involving scrap metal shall be deemed to be
arranging for recycling if the person who arranged for the
transaction (by selling recyclable material or otherwise ar-
ranging for the recycling of recyclable material) can dem-
onstrate by a preponderance of the evidence that at the
time of the transaction—
‘‘(A) the person met the criteria set forth in
subsection (c) with respect to the scrap metal; and
‘‘(B) the person was in compliance with any ap-
plicable regulations or standards regarding the stor-
age, transport, management, or other activities asso-
ciated with the recycling of scrap metal that the Ad-
ministrator promulgates under the Solid Waste Dis-
posal Act subsequent to the enactment of this sec-
tion and with regard to transactions occurring after
the effective date of such regulations or standards.
‘‘(2) For purposes of this section, the term ‘scrap
metal’ means—
‘‘(A) bits and pieces of metal parts (e.g., bars,
turnings, fines, rods, sheets, wire) or metal pieces
131
that may be combined together with bolts or solder-
ing (e.g., radiators, scrap automobiles, railroad box
cars), which when worn or superfluous can be recy-
cled; and
‘‘(B) metal byproducts that are not one of the
primary products of a production process and are
not solely or separately produced by the production
process (e.g., slag, skimmings, drosses).
The term does not include any steel shipping container
with a capacity of 30 liters to 3,000 liters, whether intact
or not, having any hazardous substance (but not metal
bits or pieces) in or adhering to the container.
‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—(1)
Transactions involving spent lead-acid batteries, spent
nickel-cadmium batteries or other spent batteries shall be
deemed to be arranging for recycling if the person who
arranged for the transaction (by selling recyclable material
or otherwise arranging for the recycling of recyclable ma-
terial) can demonstrate by a preponderance of the evi-
dence that at the time of the transaction—
‘‘(A) the person met the criteria set forth in
subsection (c) with respect to the spent lead-acid
batteries, spent nickel-cadmium batteries, or other
spent batteries but did not recover the valuable com-
ponents of such batteries; and
132
‘‘(B)(i) with respect to transactions involving
lead-acid batteries, the person was in compliance
with applicable Federal environmental regulations or
standards, and any amendments thereto, regarding
the storage, transport, management, or other activi-
ties associated with the recycling of spent lead-acid
batteries;
‘‘(ii) with respect to transactions involving nick-
el-cadmium batteries, Federal environmental regula-
tions or standards are in effect regarding the stor-
age, transport, management, or other activities asso-
ciated with the recycling of spent nickel-cadmium
batteries, and the person was in compliance with ap-
plicable regulations or standards or any amendments
thereto; or
‘‘(iii) with respect to transactions involving
other spent batteries, Federal environmental regula-
tions or standards are in effect regarding the stor-
age, transport, management, or other activities asso-
ciated with the recycling of such batteries, and the
person was in compliance with applicable regulations
or standards or any amendments thereto.
‘‘(2) For purposes of paragraph (1)(A) of this sub-
section, a person who, by contract, arranges or pays for
processing of batteries by an unrelated third person and
133
receives from such third person materials reclaimed from
such batteries shall not thereby be deemed to recover the
valuable components of such batteries.
‘‘(f) EXCLUSIONS.—(1) The exemptions set forth in
subsections (c), (d), and (e) shall not apply if—
‘‘(A) the person had an objectively reasonable
basis to believe at the time of the recycling trans-
action—
‘‘(i) that the recyclable material would not
be recycled,
‘‘(ii) that the recyclable material would be
burned as fuel, or for energy recovery or incin-
eration, or
‘‘(iii) for transactions occurring before 90
days after the date of the enactment of this sec-
tion, that the consuming facility was not in
compliance with a substantive (not a procedural
or administrative) provision of any Federal,
State, or local environmental law or regulation,
or compliance order or decree issued pursuant
thereto, applicable to the handling, processing,
reclamation, or other management activities as-
sociated with the recyclable material; or
134
‘‘(B) the person added hazardous substances to
the recyclable material for purposes other than proc-
essing for recycling; or
‘‘(C) the person failed to exercise reasonable
care with respect to the management and handling
of the recyclable material.
‘‘(2) For purposes of this subsection, an objectively
reasonable basis for belief shall be determined using cri-
teria that include (but are not limited to) the size of the
person’s business, customary industry practices, the price
paid in the recycling transaction, and the ability of the
person to detect the nature of the consuming facility’s op-
erations concerning its handling, processing, reclamation
or other management activities associated with the recy-
clable material.
‘‘(3) For purposes of this subsection, a requirement
to obtain a permit applicable to the handling, processing,
reclamation, or other management activities associated
with recyclable material shall be deemed to be a sub-
stantive provision.
‘‘(g) EFFECT
ON OTHER LIABILITY.—Nothing in
this section shall be deemed to affect the liability of a per-
son under paragraph (1) or (2) of section 107(a).
‘‘(h) PCBS.—An exemption under this section does
not apply if the recyclable material contained poly-
135
chlorinated biphenyls in excess of 50 parts per million or
any new standard promulgated pursuant to applicable
Federal laws.
‘‘(i) REGULATIONS.—The Administrator has the au-
thority, under section 115, to promulgate regulations con-
cerning this section.
‘‘(j) EFFECT
ON PENDING
OR CONCLUDED AC-
TIONS.—The exemptions provided in this section shall not
affect any concluded judicial or administrative action or
any judicial action pending prior to the date of the enact-
ment of this section.
‘‘(k) LIABILITY FOR ATTORNEYS’ FEES FOR CER-
TAIN ACTIONS.—Any person who commences an action in
contribution against a person who is not liable by oper-
ation of this section shall be liable to that person for all
reasonable costs of defending that action, including all
reasonable attorneys’ and expert witness fees.
‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER
LAWS.—Nothing in this section shall affect—
‘‘(1) liability under any other Federal, State, or
local statute or regulation promulgated pursuant to
any such statute, including any requirements pro-
mulgated by the Administrator under the Solid
Waste Disposal Act; or
136
‘‘(2) the ability of the Administrator to promul-
gate regulations under any other statute, including
the Solid Waste Disposal Act.’’.
SEC. 216. INFORMATION GATHERING AND ACCESS.
(a) ADDITIONAL INFORMATION.—Section 104(e)(2)
(42 U.S.C. 9604(e)(2)) is amended—
(1) by striking subparagraph (C) and inserting:
‘‘(C) The ability of a person to pay for or
to perform a response action.’’.
(b) CONFIDENTIALITY REQUIREMENTS
FOR CON-
TRACTORS.—Paragraph (7) of section 104(e) is amended
by adding at the end the following new subparagraph:
‘‘(G)(i) No person described in clause (ii) may
disclose any record, report, document, or other infor-
mation referred to in subparagraph (A)(i) without
the permission of the President (or the State, as the
case may be).
‘‘(ii) A person described in this clause is any
person—
‘‘(I) who is not an employee of the United
States Government; and
‘‘(II) who, by virtue of the person’s duties
under a contract or cooperative agreement with
the United States under this section to perform
work for the United States Government or im-
137
plement the requirements of this Act, has re-
ceived information obtained under this section
(or any record, report, or document containing
such information) which, if requested from the
United States Government pursuant to section
552 of title 5, United States Code, would be ex-
empt from disclosure by reason of subsection
(b) of such section.’’.
(c) CONFIDENTIALITY IN GENERAL.—Subparagraph
(A) of section 104(e)(7) is amended to read as follows:
‘‘(A) Any records, reports, documents, or infor-
mation obtained from any person under this section
(including records, reports, documents, or informa-
tion obtained by representatives of the President (or
the State as the case may be) and records, reports,
documents, or information obtained pursuant to a
contract, grant, or other agreement to perform work
pursuant to this section) shall be available to the
public not later than 45 days after the records, re-
ports, or information is obtained, except as follows:
‘‘(i) Upon a showing satisfactory to the
President (or the State, as the case may be) by
any person that records, reports, documents, or
information, or any particular part thereof
(other than health or safety effects data), to
138
which the President (or the State, as the case
may be) or any officer, employee, or representa-
tive has access under this section if made public
would divulge information entitled to protection
under section 1905 of title 18, United States
Code, such information or particular portion
thereof shall be considered confidential in ac-
cordance with the purposes of that section, ex-
cept as otherwise provided in this clause. Any
such record, report, document, or information
may be disclosed to other officers, employees, or
authorized representatives of the United States
carrying out this Act, when relevant in any pro-
ceeding under this Act, including any allocator
appointed pursuant to section 128. If such
records, reports, documents, or information are
obtained or submitted to the United States (or
the State, as the case may be) pursuant to a
contract, grant, or other agreement to perform
work pursuant to this section, such record, re-
port, document, or information may be dis-
closed to persons from whom the President
seeks to recover costs pursuant to this Act.
‘‘(ii) This section does not require that in-
formation which is exempt from disclosure pur-
139
suant to section 552(a) of title 5, United States
Code, by reason of subsection (b) of such sec-
tion, be available to the public. The disclosure
of any such information pursuant to this sec-
tion shall not authorize disclosure to other par-
ties or be deemed to waive any confidentiality
privilege available under any Federal or State
law.’’.
(d) AVAILABILITY
OF
INFORMATION
TO
CON-
GRESS.—Subsection 104(e) is further amended by adding
after paragraph (7) the following new paragraph:
‘‘(8) AVAILABILITY OF INFORMATION TO CON-
GRESS.—Nothing in this subsection shall be con-
strued to authorize any person, including any allo-
cator appointed pursuant to section 128, 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.’’.
TITLE III—BROWNFIELDS AND
VOLUNTARY CLEANUPS
TITLE III—BROWNFIELDS AND VOLUNTARY CLEANUPS
Sec. 301. State voluntary response programs.
Sec. 302. Lender and fiduciary liability.
Sec. 303. Innocent landowners.
140
Sec. 304. Limitation on Federal enforcement actions under CERCLA for
States with approved remedial action programs.
Sec. 305. Bona fide prospective purchaser liability.
SEC. 301. STATE VOLUNTARY RESPONSE PROGRAMS.
(a) FINDINGS.—Congress finds the following:
(1) Brownfields are abandoned or underutilized
industrial sites that may contain environmental con-
tamination, often located in urban and economically
distressed areas.
(2) Brownfields, which may number in the hun-
dreds of thousands nationwide, devalue surrounding
property, erode local tax bases, and prevent job
growth.
(3) Despite potentially great productive value,
prospective developers avoid brownfields because of
the uncertainty of cleanup and development costs,
which leads to construction on undeveloped so-called
greenfield sites, contributing to urban sprawl, creat-
ing infrastructure problems, and reducing the
amount of open spaces.
(4) Lenders and fiduciaries hesitate to finance
or encourage projects to redevelop brownfields be-
cause of liability for environmental contamination
and the uncertainty of cleanup and development
costs, and therefore brownfields remain undeveloped
and the environmental contamination is not quickly
addressed.
141
(5) Redevelopment and cleanup of brownfields
would reduce environmental contamination, encour-
age job growth, and curb the development of green-
fields.
(6) State voluntary programs to address envi-
ronmental contamination, and Federal liability re-
forms to encourage lenders and developers to invest
in brownfield sites, can be very effective in promot-
ing the redevelopment of brownfields.
(b) PURPOSES AND OBJECTIVES.—The purposes and
objectives of this section are to—
(1) significantly increase the pace of response
activities at contaminated sites by promoting and
encouraging the creation, development, and expan-
sion of State voluntary response programs; and
(2) benefit the public health, welfare, and the
environment by returning contaminated sites to eco-
nomically productive or other beneficial uses.
(c) STATE VOLUNTARY RESPONSE PROGRAMS.—
Title I is amended by adding after section 129, as added
by section 215, the following new section:
‘‘SEC. 130. STATE VOLUNTARY RESPONSE PROGRAMS.
‘‘(a) ASSISTANCE TO STATES.—The Administrator
shall provide technical and other assistance to States to
142
establish and expand voluntary response programs to in-
clude any of the elements listed in subsection (b).
‘‘(b) ELEMENTS OF VOLUNTARY RESPONSE PRO-
GRAM.—The elements of a voluntary response program eli-
gible for assistance under subsection (a) are the following:
‘‘(1) Opportunities for technical assistance for
voluntary response actions.
‘‘(2) Adequate opportunities for public partici-
pation, including prior notice and opportunity for
comment, in appropriate circumstances, in selecting
response actions.
‘‘(3) Procedures to ensure expeditious voluntary
response actions.
‘‘(4) Adequate oversight and enforcement au-
thorities to ensure that voluntary response actions
are protective of human health and the environment,
are conducted in accordance with an appropriate re-
sponse action plan and ensure, if necessary, comple-
tion of response actions if the person conducting the
voluntary response action fails or refuses to complete
the necessary response activities, including operation
and maintenance or long-term monitoring activities.
‘‘(5) Mechanisms for the approval of a vol-
untary response action plan.
143
‘‘(6) A requirement for a certification or similar
documentation from the State to the person conduct-
ing the voluntary response action indicating that the
response is complete.’’.
SEC. 302. LENDER AND FIDUCIARY LIABILITY.
(a) LENDER LIABILITY.—(1) Section 107 (42 U.S.C.
9607) is amended by adding after subsection (n), as added
by section 203, the following new subsection:
‘‘(o) LENDER LIABILITY.—
‘‘(1) PARTICIPATION IN MANAGEMENT.—
‘‘(A) IN GENERAL.—A person who holds
indicia of ownership primarily to protect the
person’s security interest in a vessel or facility
shall not be considered to have participated in
management, as that term is used in section
101(20), unless the person—
‘‘(i) exercises decisionmaking control
over the borrower’s environmental compli-
ance, including undertaking responsibility
for the hazardous substance handling or
disposal practices of the vessel or facility;
or
‘‘(ii) exercises control at a level com-
parable to that of a manager of the bor-
rower’s vessel or facility, including assum-
144
ing or manifesting responsibility for the
overall management of the vessel or facility
encompassing day-to-day decisionmaking
over either environmental compliance or
over the operational, as opposed to finan-
cial and administrative, aspects of the ves-
sel or facility.
‘‘(B) OPERATIONAL ASPECTS DEFINED.—
In subparagraph (A)(i), the term ‘operational
aspects’ includes functions such as those of a
facility or plant manager, operations manager,
chief operating officer, or chief executive officer.
‘‘(2) EXCLUSIONS.—The term ‘participation in
management’, as used in section 101(20), does not
include any of the following:
‘‘(A) The mere capacity to influence, or
ability to influence, or the unexercised right to
control vessel or facility operations.
‘‘(B) Any act of a security interest holder
to require another person to comply with appli-
cable laws or to respond lawfully to disposal of
any hazardous substance.
‘‘(C) Conducting an act or failing to act
prior to the time that a security interest is cre-
ated in a vessel or facility.