subsequently sought from such other party, shall remain
discoverable or admissible.
‘‘(c) NO WAIVER OF PRIVILEGE.—The submission of
documents or information pursuant to the binding alloca-
tion of responsibility proceeding shall not be deemed to
be a waiver of any privilege, applicable to the original doc-
ument or fact, under any Federal or State law, regulation,
or rule of discovery or evidence .
‘‘(d) DISCOVERY.—In any case where a party to a
binding allocation of responsibility receives any request for
any pleading, document, or material, or for the record of
any depositions or testimony adduced in a binding alloca-
tion of responsibility, such party shall promptly notify the
person who originally submitted such item and shall pro-
vide such submitting person the opportunity to assert and
defend the confidentiality of such item. No party to the
binding allocation of responsibility shall release or provide
a copy of any pleading, document, or material, or the
record of any depositions or testimony adduced therein,
to any person not a party to such binding allocation of
responsibility, except in compliance with an order from a
court.
‘‘(e) CIVIL PENALTY FOR VIOLATION OF CONFIDEN-
TIALITY REQUIREMENTS.—Any person who fails to main-
tain the confidentiality of any pleadings, documents, or
materials, or the record of any deposition or testimony ad-
duced during the binding allocation of responsibility, or
who releases any such information in violation of this sec-
tion, shall be subject to a civil penalty of up to $25,000
per violation. Such a penalty may be assessed by the Presi-
dent in accordance with section 109 or by any other party
in a citizen suit brought under section 310. A prevailing
plaintiff in such a citizen suit shall be awarded its attor-
neys fees and up to 50 percent of the penalty imposed
by the court.
‘‘SEC. 507. FINAL AGENCY ACTION AND JUDICIAL REVIEW.
‘‘(a) FINAL AGENCY ACTION.—The binding alloca-
tion of responsibility decision of the allocation panel shall
constitute final agency action pursuant to section 706 of
title 5, United States Code, subject only to review by the
Administrator in situations of fraud or gross misconduct.
‘‘(b) JUDICIAL REVIEW.—
‘‘(1) IN GENERAL.—No Federal or State court
shall have jurisdiction to review, modify, or enjoin
any aspect of any binding allocation of responsibility
proceeding except as expressly set forth in this sub-
section. No aspect of any action, decision, ruling, or
determination by an allocation panel in any binding
allocation of responsibility proceeding shall be sub-
ject to administrative or judicial review in any Fed-
eral or State court until after the final binding allo-
cation of responsibility decision (in this subsection
referred to as the ‘final BAR decision’) is issued by
the allocation panel. Thereafter the Administrator,
the guardian, the State, or any person determined
by the allocation panel to be a liable party may ob-
tain judicial review of a final BAR decision by filing
a petition for review with the United States Court
of Appeals for the Circuit in which the facility is lo-
cated or for the District of Columbia.
‘‘(2) PETITION.—Any such petition for review
must be filed within 60 days after the date of the
final BAR decision by the allocation panel. The peti-
tion shall set forth either the specific assigned share
of liability that the petitioner believes should have
been assigned to it (or, in the case of a petition filed
by the guardian, the assigned share that the guard-
ian believes should have been assigned to the orphan
share) in the binding allocation of responsibility, or
stating specifically that the petitioner believes it
should not have been found to have any liability at
all.
‘‘(3) REVIEW.—Judicial review of the final
BAR decision shall be conducted on the administra-
tive record, which shall include all materials relating
to the issues raised on appeal by the petitioner that
are contained in the document repository described
in section 506(a). The court shall set aside the bind-
ing allocation of responsibility only if it is found to
be arbitrary, capricious, an abuse of discretion, or
contrary to constitutional right, power, privilege, or
immunity.
‘‘(4) PAYMENT
DURING
PENDENCY
OF
RE-
VIEW.—During the pendency of a petition for review
under this section, the petitioner shall pay any de-
mand notices rendered for its assigned share in ac-
cordance with the binding allocation of responsibility
decision, subject to later refund if the petitioner pre-
vails in the litigation.
‘‘(5) LIABILITY OF SUCCESSFUL PETITIONER.—
If the petitioner is a liable party and the court
adopts the assigned share proposed by the peti-
tioner, then the difference between that share and
the share originally assigned to the petitioner shall
be added to the orphan share. If the petitioner is the
guardian and the court adopts the orphan share pro-
posed by the petitioner, then the matter shall be re-
manded to the allocation panel for the issuance, as
soon as possible, of a revised binding allocation of
responsibility decision in accordance with the deci-
sion of the court.
‘‘(6) 
LIABILITY
OF
UNSUCCESSFUL
PETI-
TIONER.—(A) In the case of a petitioner who is a
liable party petitioning for a change in the petition-
er’s assigned share, and the court does not adopt the
assigned share proposed by the petitioner, the fol-
lowing provisions apply:
‘‘(i) The petitioner shall reimburse all
other parties that participated in the appeal for
the actual attorneys’ fees and costs that they
incurred in defending the binding allocation of
responsibility decision.
‘‘(ii) The petitioner is considered to have
not resolved its liability to the United States
and is subject to civil action under section 106,
107(a), and 113 for the following response
costs with respect to the National Priority List
site concerned:
‘‘(I) The assigned share of the peti-
tioner, as determined in the final BAR de-
cision, plus
‘‘(II) the orphan share for that site.
‘‘(iii) The petitioner is subject to claims for
contribution from other unsuccessful petitioners
with respect to the National Priority List site
concerned.
‘‘(iv) The petitioner may make claims for
contribution against other unsuccessful petition-
ers with respect to the National Priority List
site concerned.
‘‘(B) In the case of a petitioner who is a liable
party petitioning for a determination that the peti-
tioner is not liable with respect to the site concerned
(for reasons such as the fact that the petitioner is
a successor to, or a parent or subsidiary of, a com-
pany which the petitioner believes should be assigned
liability instead), and the court denies the petition,
the petitioner is liable for its assigned share as de-
termined in the final BAR decision.
‘‘SEC. 508. COLLECTION, ENFORCEMENT, AND IMPLEMEN-
TATION.
‘‘(a) COLLECTION.—
‘‘(1) AMOUNT
RECOVERABLE.—After a final
binding allocation of responsibility decision is made
with respect to a National Priority List site, any
creditor party may, in accordance with paragraph
(2), recover from any debtor party the following:
‘‘(A) With respect to a debtor party who is
a liable party, that party’s assigned share, as
determined under the binding allocation of re-
sponsibility.
‘‘(B) With respect to a debtor party which
is the Hazardous Substance Superfund, the or-
phan share, as determined under the binding al-
location of responsibility.
‘‘(C) With respect to a debtor party who is
either a liable party or the Hazardous Sub-
stance Superfund, any attorneys’ fees incurred
by the creditor party in a judicial action seeking
to recover costs from the debtor party.
‘‘(2) PROCEDURES FOR RECOVERY.—Recovery
by a creditor party from a debtor party shall be car-
ried out in accordance with the following provisions:
‘‘(A) The creditor party shall file a cer-
tified copy of the final decision of the binding
allocation of responsibility in the United States
District Court for the district in which the site
is located.
‘‘(B) The creditor party shall file a verified
statement with the same court specifying the
actions taken and the costs incurred by the
creditor party, and stating that such actions
and costs are not inconsistent with the National
Contingency Plan.
‘‘(C) The creditor party shall serve a de-
mand notice to each debtor party against whom
enforcement is sought and shall deliver a copy
of each such notice to the Administrator and
the State in which the site is located. The de-
mand notice shall specify the total amount of
costs covered by the notice, state a demand
amount (consisting of the debtor party’s as-
signed share or, with regard to the Fund, the
orphan share), and demand that the debtor
party pay such demand amount within 30 days
after receipt of the notice. A copy of the de-
mand notice shall be filed with the United
States District Court for the district in which
the site is located.
‘‘(D) With respect to any response actions
or expenditures of a continuing nature, verified
statements and demand notices shall be filed
with the court and delivered to the debtor par-
ties and the guardian quarterly.
‘‘(E) Where several liable parties, or a lia-
ble party and the Administrator or the State,
each take actions or incur costs not inconsistent
with the National Contingency Plan, different
demand notices may be issued concurrently.
‘‘(b) PENALTIES AND DAMAGES.—Except in the case
of a challenge to collection duly filed in accordance with
subsection (c), if a liable party, including any Federal,
State, or local governmental agency, fails to pay the sum
specified in a demand notice within 30 days after receipt
of the notice, such party shall be liable for the interest
thereon, civil penalties of up to $10,000 per day, and dam-
ages of up to an amount equal to 3 times the sum specified
in the demand notice. In the case of the orphan share,
if the Hazardous Substance Superfund fails to pay the
sum specified in a demand notice within 30 days after re-
ceipt of the notice, the Fund shall be liable for interest
thereon and damages of up to the amount equal to 2 times
the sum specified in the demand notice.
‘‘(c) CHALLENGES TO ENFORCEMENT.—There shall
be no administrative or judicial review of any aspect of
a demand notice filed and delivered pursuant to subsection
(a) except in accordance with this subsection. Within 30
days after receipt of a demand notice, a liable party or,
in the case of the orphan share, the guardian may file
a petition with the allocation panel that issued the binding
allocation of responsibility decision contending that the
costs reflected in the demand notice were incurred for ac-
tions inconsistent with the National Contingency Plan. If
such a petition is filed, the allocation panel shall conduct
an expedited review of the matter. The review shall be lim-
ited solely to the issue of the alleged inconsistency of the
response actions and costs with the National Contingency
Plan. The person challenging the demand notice shall have
the burden of proof that such actions and the claimed
costs are inconsistent with the National Contingency Plan.
The allocation panel’s decision shall not be subject to judi-
cial review. Payment need not be made, and no interest
shall accrue, pending the allocation panel’s decision.
‘‘(d) 
SUBSEQUENT
ADDITIONS
TO
ORPHAN
SHARE.—If good faith collection and enforcement efforts,
whether by the Federal or State government or by any
other creditor party, against a liable party results in a ju-
dicial or administrative determination that such liable
party is an orphan party, then such liable party’s share
will be added to the orphan share amount and will be re-
coverable from the Hazardous Substance Superfund.
‘‘(e) CONTRIBUTION PROTECTION.—Liable parties
that pay their assigned share and comply with the binding
allocation of responsibility decision shall have no other li-
ability, under Federal or State law, to any person for costs
incurred at the site, except that the binding allocation of
responsibility decision shall not affect any contract for in-
surance or indemnification.
‘‘SEC. 509. TRANSITION PROVISIONS.
‘‘(a) IN GENERAL.—Except as provided in subsection
(b), no person may initiate any administrative or judicial
action under section 106, subparagraph (A), (B), or (D)
of section 107(a)(4), or section 113, or under any other
Federal or State law or regulation, for the recovery of re-
sponse costs, contribution, or performance of response ac-
tions regarding any National Priority List site until 90
days after a final binding allocation of responsibility is
issued.
‘‘(b) EXCEPTIONS.—Subsection (a) is subject to only
the following exceptions:
‘‘(1) ADMINISTRATIVE
ORDERS
FOR
EMER-
GENCY
REMOVAL
ACTIONS.—The President may
issue an order under section 106, prior to the issu-
ance of a final binding allocation of responsibility, if
the order is limited to those actions required to pro-
tect human health and the environment pending the
issuance of the final binding allocation of respon-
sibility decision.
‘‘(2) CONTINUATION
OF
PENDING
RESPONSE
ACTIONS.—In any case where, as of the date of en-
actment of this title, the Administrator or a State
has already issued a binding contract for the per-
formance of a remedial investigation/feasibility study
or has issued an administrative order or executed a
consent decree for the performance of any response
action, the binding allocation of responsibility proc-
ess shall not affect the timing or manner of imple-
mentation of such response actions.
‘‘(c) STAY OF EXISTING ACTIONS.—
‘‘(1) STAY
OF
PENDING
ENFORCEMENT
AC-
TIONS.—In any case where, as of the date of enact-
ment of this title, the Administrator or the State has
already initiated any administrative or judicial en-
forcement action regarding the liability of any party
under section 106, subparagraph (A), (B), or (D) of
section 107(a)(4), or section 113, or under any other
Federal or State law or regulation for the response
costs, contribution, or performance of response ac-
tions, such action shall be automatically stayed until
90 days after a binding allocation of responsibility is
issued, any judicial review of such allocation is com-
pleted, and a final administrative or judicial alloca-
tion decision is rendered.
‘‘(2) STAY OF PENDING PRIVATE PARTY LITIGA-
TION.—In any case where, as of the date of enact-
ment of this title, any private person has initiated
any administrative or judicial action regarding the
liability of any party under section 106, subpara-
graph (A), (B), or (D) of section 107(a)(4), or sec-
tion 113, or under any other Federal or State law
or regulation for the response costs, contribution, or
performance of response actions, such action shall be
automatically stayed until 90 days after a binding
allocation of responsibility is issued, any judicial re-
view of such allocation is completed, and a final ad-
ministrative or judicial allocation decision is ren-
dered.
‘‘(d) CREDIT FOR ACTIONS AND COSTS IN PENDING
MATTERS.—In the case of any response action performed
or cost incurred in any activity carried out pursuant to
subsection (b), the liability for such response action shall
be governed by, and the costs of implementing any such
response action or other activity carried out pursuant to
subsection (b), shall be included in, the subsequently is-
sued binding allocation of responsibility for such National
Priority List site. In conducting the binding allocation of
responsibility, the allocation panel shall, to the extent rea-
sonably possible, give credit for any prior costs incurred
or response actions performed at the National Priority
List site.
‘‘(e) LIMITATIONS ON EXISTING ACTIONS.—(1) The
time period described in paragraph (2) shall not be count-
ed in determining the statute of limitations applicable to
any administrative or judicial action under section 106,
subparagraph (A), (B), or (D) of section 107(a)(4), or sec-
tion 113, or under any other Federal or State law or regu-
lation, for the recovery of costs, for contribution, or for
the investigation, cleanup, or remediation of any National
Priority List site.
‘‘(2) The time period referred to in paragraph (1) is
the period beginning on the date that any person first files
a petition for the initiation of a binding allocation of re-
sponsibility for that site and ending on the date that a
binding allocation of responsibility is issued.
‘‘SEC. 510. VOLUNTARY SETTLEMENTS.
‘‘Prior to the issuance of a binding allocation of re-
sponsibility decision, any group of potentially responsible
parties may submit a private allocation for the National
Priority List site (to be known as a ‘voluntary binding
allocation of responsibility’) to the allocation panel. If such
voluntary binding allocation of responsibility meets the fol-
lowing criteria, the allocation panel shall promptly adopt
it as the binding allocation of responsibility:
‘‘(1) The voluntary binding allocation of respon-
sibility shall be a binding allocation of 100 percent
of past, present, and future recoverable response
costs at the site.
‘‘(2) The voluntary binding allocation of respon-
sibility shall not allocate any costs or require-
ments—
‘‘(A) to the orphan share, unless the
guardian agrees, in writing, to such allocation;
or
‘‘(B) to any person who is not a signatory
to the voluntary binding allocation of respon-
sibility.
‘‘(3) Signatories to the voluntary binding alloca-
tion of responsibility shall be entitled to contribution
protection as specified in section 508(e). Such sig-
natories shall be prohibited from pursuing any cost
recovery action or contribution against any non-sig-
natory, but may seek additional recovery against
non-signatories based on a contract for insurance or
indemnification.
‘‘(4) Signatories to the voluntary binding alloca-
tion of responsibility shall be entitled to enforce it in
the same manner as any binding allocation of re-
sponsibility final decision by the allocation panel.
‘‘SEC. 511. NEW BINDING ALLOCATIONS OF RESPONSIBIL-
ITY.
‘‘A binding allocation of responsibility shall constitute
a permanent determination of the assigned share of each
liable party and of the orphan share and, except for addi-
tions to the orphan share pursuant to section 508(d) and
judicially mandated changes pursuant to section 507(b),
the binding allocation of responsibility shall not be subject
to any change or revision for at least 5 years after the
date of the binding allocation of responsibility final deci-
sion. Thereafter a new binding allocation of responsibility
process shall be available only if the party requesting it
demonstrates that, due to new information not reasonably
available during first binding allocation of responsibility,
a 35 percent or greater increase in total waste-in volume
has been discovered. If such a request for a new binding
allocation of responsibility is granted, the same rules and
procedures described for initial binding allocations of re-
sponsibility apply to the new or revised binding allocation
of responsibility. New binding allocations of responsibility
shall only apply to funds actually expended after the effec-
tive date of the new binding allocation of responsibility de-
cision, with no credits for funds already expended. Subse-
quent new binding allocations of responsibility requests
are prohibited until 5 years after the date of issuance of
the prior new binding allocation of responsibility.’’.
Æ
HR 3624 IH——2
HR 3624 IH——3
HR 3624 [H——4 HR 3624 IH——5 eHR 3624 IH 55