142
also shall be considered necessary costs of re-
sponse for purposes of this Act, and shall be re-
coverable from liable parties who do not resolve
their liability on the basis of the allocation.
‘‘(6) REJECTION OF SHARE DETERMINATION.—
In any action by the United States under this title,
if the United States has rejected an offer of settlement
that is consistent with subsection (o) and that was
presented to the United States prior to the expiration
of the moratorium period set forth in subsection (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 reason-
able attorneys’ fees) if the ultimate resolution of li-
ability or allocation of costs with respect to the offeror
(taking into account all settlements and reimburse-
ments with respect to the facility other than those at-
tributable to insurance or indemnification), 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 remedial
action for which an allocation is required by sub-
143
section (a)(1), shall be entitled to reimbursement for
the reasonable and necessary costs of work they per-
form in excess of the share assigned to them in the al-
location in accordance with the provisions of this sec-
tion, provided that the allocation report is not re-
jected by the United States and, that, at the end of
the moratorium following the allocation, the perform-
ing party, in consideration of such reimbursement—
‘‘(A) agrees not to contest liability for all
response costs not inconsistent with the National
Contingency Plan to the extent of the allocated
share;
‘‘(B) receives no covenant not to sue;
‘‘(C) agrees that its reimbursement shall be
reduced by an amount equal to the maximum
litigation risk premium provided for in sub-
section (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
144
enters into with any other potentially responsible
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 perform
any aspect of the remedy in a proper and timely
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 per-
forming 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 reme-
dial action.
145
‘‘(B) Performing parties who retain their
right to challenge the remedy shall be reimbursed
for 90 percent of orphan share funding, paid in
nominal dollars after the work is completed, but
no sooner than completion of the construction of
the remedial action, unless the orphan share is
less than 20 percent of responsibility at the site,
in which case such parties shall be reimbursed
only 80 percent of the orphan 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.—Re-
imbursement 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 recov-
ered 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 construc-
tion of the remedy is completed.
146
‘‘(6) REIMBURSEMENT
CLAIMS.—The Adminis-
trator shall require that all claims for reimbursement
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 deter-
mined pursuant to this section, provided that Fund financ-
ing of orphan shares shall not exceed $300,000,000 in any
fiscal year. Reimbursements made under this subsection
shall be subject to such terms and conditions as the Presi-
dent may prescribe.
‘‘(s) PROCEDURES.—The Administrator, after con-
sultation with the Attorney General, may promulgate rules
(or guidance) of Agency organization, procedure, and prac-
tices but shall not have additional authority, except as spe-
cifically set forth in this section, to promulgate rules or pub-
147
lish guidance to restrict the allocator’s discretion in the con-
duct 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 Attorney
General, and a representative of any State that may be re-
sponsible 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 an-
nually to Congress on the administration of the allocation
scheme under this section, and provide information com-
paring 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 judi-
cial consent decree resolving that party’s liability; or to file
148
a proof of claim or take other action in a proceeding 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 principles
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 mer-
its of any judicial or administrative order, judgment,
or decree that is issued, signed, lodged, or entered
with respect to liability under this Act or that author-
izes modification of any such order, judgment or de-
cree; or
‘‘(D) the validity, enforceability, finality or mer-
its of any preexisting contract or agreement relating
to any allocation of responsibility or any sharing of
response costs under this Act.’’.
149
SEC. 413. RECYCLING TRANSACTIONS.
(a) PURPOSES.—The purposes of this section are—
(1) to promote the reuse and recycling of scrap
material in furtherance of the goals of waste mini-
mization and natural resource conservation while
protecting human health and the environment;
(2) to level the playing field between the use of
virgin materials and recycled materials; and
(3) to remove the disincentives and impediments
to recycling because of potential liability.
(b) CLARIFICATION OF LIABILITY UNDER CERCLA
FOR RECYCLING TRANSACTIONS.—Title I is amended by
adding after section 128 the following new section:
‘‘SEC. 129. RECYCLING TRANSACTIONS.
‘‘(a) LIABILITY CLARIFICATION.—As provided in sub-
sections (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 normal and cus-
tomary use prior to becoming scrap.
150
‘‘(c) TRANSACTIONS INVOLVING SCRAP PAPER, PLAS-
TIC, GLASS, TEXTILES, OR RUBBER.—Transactions involv-
ing scrap paper, scrap plastic, scrap glass, scrap textiles,
or scrap rubber (other than whole tires) 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 material) can dem-
onstrate by a preponderance of the evidence 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 material.
‘‘(3) A substantial portion of the recyclable mate-
rial 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, proc-
151
essed, reclaimed, or otherwise managed by another
person (hereinafter in this section referred to as a
‘consuming facility’) was in compliance with sub-
stantive (not procedural or administrative) provisions
of any Federal, State, or local environmental law or
regulation, or compliance order or decree issued pur-
suant thereto, applicable to the handling, processing,
reclamation, storage, or other management activities
associated with the recyclable material.
‘‘(6) For purposes of this subsection, ‘reasonable
care’ shall be determined using criteria that include
(but are not limited to) (A) the price paid in the re-
cycling transaction; (B) the ability of the person to
detect the nature of the consuming facility’s oper-
ations concerning its handling, processing, reclama-
tion, or other management activities associated with
the recyclable material; and (C) the result of inquiries
made to the appropriate Federal, State, or local envi-
ronmental agency (or agencies) regarding the consum-
ing facility’s past and current compliance with sub-
stantive (not procedural or administrative) provisions
of any Federal, State, or local environmental law or
regulation, or compliance order or decree issued pur-
suant thereto, applicable to the handling, processing,
reclamation, storage, or other management activities
152
associated with the recyclable material. For the pur-
poses of this paragraph, a requirement to obtain a
permit applicable to the handling, processing, rec-
lamation, 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 recycla-
ble material or otherwise arranging for the recycling
of recyclable material) can demonstrate by a prepon-
derance of the evidence that at the time of the trans-
action—
‘‘(A) the person met the criteria set forth in
subsection (c) with respect to the scrap metal;
‘‘(B) the person was in compliance with
any applicable regulations or standards regard-
ing the storage, transport, management, or other
activities associated with the recycling of scrap
metal that the Administrator promulgates under
the Solid Waste Disposal Act subsequent to the
enactment of this section and with regard to
transactions occurring after the effective date of
such regulations or standards; and
153
‘‘(C) the person did not melt the scrap
metal prior to the transaction.
‘‘(2) For purposes of paragraph (1)(C), melting
of scrap metal does not include the thermal separa-
tion of 2 or more materials due to differences in their
melting points (referred to as ‘sweating’).
‘‘(3) For the purposes of this subsection, the term
‘scrap metal’ means bits and pieces of metal parts
(e.g. bars, turnings, rods, sheets, wire) or metal pieces
that may be combined together with bolts or soldering
(e.g. radiators, scrap automobiles, railroad box cars),
which when worn or superfluous can be recycled, ex-
cept for scrap metals that the Administrator excludes
from this definition by regulation.
‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—Trans-
actions involving spent lead-acid batteries, spent nickel-cad-
mium 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 material) can dem-
onstrate by a preponderance of the evidence that at the time
of the transaction—
‘‘(1) the person met the criteria set forth in sub-
section (c) with respect to the spent lead-acid bat-
teries, spent nickel-cadmium batteries, or other spent
154
batteries but did not recover the valuable components
of such batteries; and
‘‘(2)(A) 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 activities
associated with the recycling of spent lead-acid bat-
teries;
‘‘(B) with respect to transactions involving nick-
el-cadmium batteries, Federal environmental regula-
tions or standards are in effect regarding the storage,
transport, management, or other activities associated
with the recycling of spent nickel-cadmium batteries,
and the person was in compliance with applicable
regulations or standards or any amendments thereto;
or
‘‘(C) with respect to transactions involving other
spent batteries, Federal environmental regulations or
standards are in effect regarding the storage, trans-
port, management, or other activities associated with
the recycling of such batteries, and the person was in
compliance with applicable regulations or standards
or any amendments thereto.
155
‘‘(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 inciner-
ation, 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 com-
pliance 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
‘‘(B) the person added hazardous substances to
the recyclable material for purposes other than proc-
essing for recycling; or
156
‘‘(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 rea-
sonable basis for belief shall be determined using criteria
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 operations con-
cerning its handling, processing, reclamation or other man-
agement activities associated with the recyclable material.
‘‘(3) For purposes of this subsection, a requirement to
obtain a permit applicable to the handling, processing, rec-
lamation, or other management activities associated with
recyclable material shall be deemed to be a substantive pro-
vision.
‘‘(g) EFFECT ON OTHER LIABILITY.—Nothing in this
section shall be deemed to affect the liability of a person
under paragraph (1) or (2) of section 107(a).
‘‘(h) PCBS.—An exemption under this section does not
apply if the recyclable material contained polychlorinated
biphenyls in excess of 50 parts per million or any new
standard promulgated pursuant to applicable Federal laws.
157
‘‘(i) REGULATIONS.—The Administrator has the au-
thority, under section 115, to promulgate additional regula-
tions concerning this section.
‘‘(j) EFFECT ON PENDING OR CONCLUDED ACTIONS.—
The exemptions provided in this section shall not affect any
concluded judicial or administrative action or any pending
judicial action initiated by the United States prior to en-
actment of this section.
‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR CERTAIN
ACTIONS.—Any person who commences an action in con-
tribution against a person who is not liable by operation
of this section shall be liable to that person for all reasonable
costs of defending that action, including all reasonable at-
torney’s 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 promul-
gated by the Administrator under the Solid Waste
Disposal Act; or
‘‘(2) the ability of the Administrator to promul-
gate regulations under any other statute, including
the Solid Waste Disposal Act.’’.
158
TITLE V—REMEDY SELECTION
AND CLEANUP STANDARDS
Sec. 501. Cleanup standards.
Sec. 502. Remedy selection.
Sec. 503. Miscellaneous amendments to section 121.
Sec. 504. Response authorities.
Sec. 505. Removal actions.
Sec. 506. Transition.
SEC. 501. CLEANUP STANDARDS.
Section 121(d) (42 U.S.C. 9621(d)) is amended as fol-
lows:
(1) In paragraph (3), by inserting ‘‘or 4010(c)
if appropriate’’ after ‘‘3005’’.
(2) By redesignating paragraphs (3) and (4) as
paragraphs (9) and (10), respectively.
(3) By striking out the subsection heading and
designation and all that follows through the end of
paragraph (2) and inserting in lieu thereof the follow-
ing:
‘‘(d) ESTABLISHMENT OF PROTECTIVE CONCENTRA-
TION LEVELS.—
‘‘(1) NATIONAL GOALS FOR THE PROTECTION OF
HUMAN HEALTH AND THE ENVIRONMENT.—In order
to provide consistent and equivalent protection of
human health and the environment to all commu-
nities, within 18 months after the enactment of the
Superfund Reform Act of 1994, the Administrator
shall promulgate national goals to be applied at all
159
facilities subject to remedial action under this Act.
National goals for human health shall be expressed as
a single, numerical level for chemical carcinogens and
noncarcinogens, respectively. The national goals shall
provide the basis for protective concentration levels
unless the achievement of such goals is technically in-
feasible or unreasonably costly pursuant to subsection
(b). In a case in which the President selects a remedy
that does not achieve the national goals, the President
shall publish an explanation of the basis for that deci-
sion. The national goals shall be developed and pro-
mulgated in accordance with sections 561 through
570 of title 5, United States Code (commonly referred
to as the ‘Negotiated Rulemaking Act’).
‘‘(2) SCOPE AND PURPOSE OF NATIONAL RISK
PROTOCOL.—The Administrator shall promulgate a
national risk protocol for conducting risk assessments
under this Act. The national risk protocol shall be
used for risk assessments underlying determinations
of the need for remedial action, the establishment of
protective concentration levels of chemicals, and the
evaluation of remedial alternatives. The national risk
protocol shall be developed and promulgated in ac-
cordance with sections 561 through 570 of title 5,
United States Code, to the extent the Administrator
160
deems appropriate. The national risk protocol shall
establish, to the extent appropriate and practicable,
the following:
‘‘(A) Standardized exposure scenarios defin-
ing exposure pathways for a range of unre-
stricted and restricted land uses.
‘‘(B) Standardized formulae or methodolo-
gies for—
‘‘(i) evaluating the exposure pathways
of concern under the standardized exposure
scenarios established under subparagraph
(A); and
‘‘(ii) developing, consistent with the
national goals under paragraph (1), chemi-
cal concentration levels protective of recep-
tors currently and reasonably anticipated to
be exposed via the pathways included in
such scenarios for the 100 contaminants
most frequently occurring at facilities ad-
dressed under this Act for which adequate
toxicity information is available.
‘‘(C) Methodologies for facility-specific eval-
uations of ecological risks.
‘‘(3) STANDARDIZED FORMULAE OR METHODOLO-
GIES.—Standardized formulae or methodologies estab-
161
lished under subparagraphs (A) and (B) of paragraph
(2) shall include the following:
‘‘(A) National constants for specific charac-
teristics of individual chemicals not expected to
vary from facility to facility.
‘‘(B) Facility-specific variables for physical
characteristics of the facility and other factors.
Criteria for identifying such variables shall in-
clude the following:
‘‘(i) Whether a characteristic or factor
can be objectively measured based on actual
facility data or reasonably estimated based
on credible scientific studies when facility-
measured data cannot be reasonably ob-
tained.
‘‘(ii) Whether the effects of a char-
acteristic or factor are scientifically well-
understood.
‘‘(iii) Whether the impact of the char-
acteristic or factor on estimations of risk or
protective concentration levels is significant.
‘‘(C) Exposure factors related to demo-
graphics (including separate exposure factors for
sensitive subpopulations to be applied where rel-
evant), activity patterns, and natural con-
162
straints. Defaults or ranges of default values
shall be established for such factors and used un-
less verifiable data are presented that the de-
faults are significantly different from actual fa-
cility conditions. In such cases, the values shall
be determined on a site-specific basis after con-
sideration of any views expressed by the Commu-
nity Working Group, if available, and the af-
fected community.
‘‘(4) APPLICATION OF NATIONAL RISK PROTOCOL.
—(A) The President shall conduct an analysis at
each facility to determine which exposure scenarios,
pathways, and contaminants are relevant to that fa-
cility. Where standardized formulae or methodologies
for addressing such relevant scenarios, pathways, and
contaminants are available, they shall be used.
‘‘(B) Standardized formulae or methodologies for
exposure pathways that do not exist or are not rea-
sonably anticipated to exist in the future at a facility
shall not be applied in establishing protective con-
centration levels for the facility.
‘‘(C) Where standardized formulae or methodolo-
gies for particular exposure scenarios, exposure path-
ways, or chemicals are unavailable, facility-specific
risk assessment shall be used.
163
‘‘(5) CONSIDERATIONS
IN
ESTABLISHING
THE
NATIONAL
RISK
PROTOCOL.—(A) In developing the
national risk protocol under paragraph (2), the Ad-
ministrator shall evaluate and, to the degree appro-
priate and practicable—
‘‘(i) identify appropriate sources of toxicity
information;
‘‘(ii) define the use of probabilistic model-
ing;
‘‘(iii) identify criteria for the selection and
application of transport and fate models;
‘‘(iv) define the use of high end and central
tendency exposure cases and assumptions;
‘‘(v) define the use of population risk esti-
mates in addition to individual risk estimates;
‘‘(vi) define appropriate approaches for ad-
dressing cumulative risks posed by multiple con-
taminants or multiple exposure pathways; and
‘‘(vii) establish appropriate sampling ap-
proaches and data quality requirements.
‘‘(B) The national risk protocol shall establish
guidelines for all risk assessments conducted under
paragraph (2), including those by which protective
concentration levels are established, which result in
164
final protection at the 90th exposure percentile of the
affected population defined by the President.
‘‘(6) PHASING AND UPDATING OF THE NATIONAL
RISK PROTOCOL.—The national risk protocol shall be
developed in accordance with a schedule promulgated
by the Administrator within 90 days after the date of
enactment of the Superfund Reform Act of 1994. The
national risk protocol may be developed and promul-
gated in phases as determined appropriate by the Ad-
ministrator. The final protocol shall be promulgated
within 18 months after the enactment of such Act.
The Administrator also shall determine an appro-
priate approach and schedule for ensuring that the
national risk protocol remains current with emerging
science and relevant Agency policy.
‘‘(7) FEDERAL AND STATE LAWS.—(A) A reme-
dial action shall be required to—
‘‘(i) comply with the substantive require-
ments of any promulgated standard, require-
ment, criterion, or limitation under any Federal,
or more stringent State, environmental or facil-
ity siting law that is applicable to the conduct
or operation of the remedial action;
‘‘(ii) attain any promulgated protective
concentration levels applicable to determining
165
the level of cleanup for remedial actions con-
ducted under any State environmental law
where such levels are more stringent than those
established under subparagraph (C)(i) or the
concentration levels determined to be protective
for a given facility in accordance with the re-
quirements of paragraph (2); and
‘‘(iii) comply with or attain any other pro-
mulgated standard, requirement, criterion, or
limitation under any State environmental or fa-
cility siting law that the State demonstrates is
consistently applied to remedial actions under
State law, and that the State determines,
through a promulgation process which includes
public notice, comment, and written response
thereto, and opportunity for judicial review,
apply to remedial actions under the Act.
‘‘(B) Compliance with any State standard, cri-
terion, requirement, or limitation under subpara-
graph (A) shall be required at a given facility if it
has been identified by the State to the President in
a timely manner as applicable at that facility. In ad-
dition, each State shall publish a comprehensive list
of the promulgated standards, criteria, requirements,
or limitations that the State may apply to remedial
166
actions under this Act and revise such list periodi-
cally. The State shall also revise such list as requested
by the President.
‘‘(C)(i) Remedial actions for contaminated
ground water and surface water that may be used for
drinking water shall attain Federal Maximum Con-
taminant Levels and non-zero Maximum Contami-
nant Level Goals where available under the title XIV
of the Public Health Service Act (the Safe Drinking
Water Act) in the ground water or surface water, ex-
cept where the provisions of clause (ii) apply. Attain-
ment of such levels shall satisfy the requirements of
paragraph (1).
‘‘(ii) Concentration levels other than those re-
quired under clause (i) may be established for ground
water that may be used for drinking water in any
case in which the following conditions are met:
‘‘(I) The President determines that the use
of alternate concentration levels is appropriate.
‘‘(II) There are known and projected points
of entry of such ground water into surface water.
‘‘(III) On the basis of measurements or pro-
jections, there is or will be no increase of such
constituents that would pose a threat to human
167
health or the environment from such ground
water in such surface water.
‘‘(IV) The remedial action includes enforce-
able measures that will preclude human exposure
to the contaminated ground water within the fa-
cility and up to all known and projected points
of entry of such ground water into surface water.
‘‘(V) Monitoring to ensure attainment of the
alternative concentration level is conducted in
ground water at a point or points immediately
prior to where the ground water enters into sur-
face water. In such cases, the point of human ex-
posure may be assumed to be at such known and
projected points of entry.
‘‘(D) Procedural requirements of Federal and
State standards, requirements, criteria, or limita-
tions, including permitting requirements, shall not
apply to response actions conducted on-site. Compli-
ance with subparagraph (A) shall not be required
with respect to return, replacement, or disposal of
contaminated media or residuals of contaminated
media into the same medium in or very near existing
areas of contamination on-site.
‘‘(E)(i) The President may select a remedial ac-
tion meeting the requirements of paragraph (1) that
168
does not comply with or attain a Federal or State
standard, requirement, criterion, or limitation as re-
quired by subparagraphs (A) and (C), if the President
finds any of the following:
‘‘(I) The remedial action selected is only
part of a total remedial action that will comply
with or attain the applicable requirements of
subparagraphs (A) and (C) of this paragraph
when completed.
‘‘(II) Compliance with or attainment of
such requirement at that facility will result in
greater risk to human health and the environ-
ment than alternative options.
‘‘(III) Compliance with or attainment of
such requirement is technically impracticable
from an engineering perspective.
‘‘(IV) The remedial action selected will at-
tain a standard of performance that is equiva-
lent to that required under a standard, require-
ment, criterion, or limitation identified under
subparagraph (A) through use of another ap-
proach.
‘‘(V) With respect to a State standard, re-
quirement, criterion, or limitation under clauses
(i), (ii), and (iii) of subparagraph (A), the State
169
has not consistently applied (or demonstrated the
intention to consistently apply) the standard, re-
quirement, criterion, or limitation in similar
circumstances at other remedial actions within
the State.
‘‘(VI) In the case of a remedial action to be
undertaken solely under section 104 using the
Fund, a selection of a remedial action that com-
plies with or attains standards, criteria, require-
ments, or limitations will not provide a balance
between the need for protection of public health
and welfare and the environment at the facility
under consideration, and the availability of
amounts from the Fund to respond to other fa-
cilities that present or may present a threat to
public health or welfare or the environment, tak-
ing into consideration the relative immediacy of
such threat.
‘‘(ii) The President shall publish any findings
made under clause (i), together with an explanation
and appropriate documentation.
‘‘(8)(A) Except as provided in subparagraph (B), a
State standard, requirement, criteria, or limitation (includ-
ing any State siting standard or requirement) which could
effectively result in the statewide prohibition of land dis-
170
posal of hazardous substances, pollutants, or contaminants
shall not apply.
‘‘(B) Any State standard, requirement, criteria, or
limitation referred to in subparagraph (A) shall apply
where each of the following conditions is met:
‘‘(i) The State standard, requirement, criteria, or
limitation is of general applicability and was adopt-
ed by formal means.
‘‘(ii) The State standard, requirement, criteria,
or limitation was adopted on the basis of hydrologic,
geologic, or other relevant considerations and was not
adopted for the purpose of precluding onsite remedial
actions or other land disposal for reasons unrelated to
protection of human health and the environment.
‘‘(iii) The State arranges for, and assures pay-
ment of the incremental costs of utilizing, a facility
for disposition of the hazardous substances, pollut-
ants, or contaminants concerned.’’.
SEC. 502. REMEDY SELECTION.
Section 121(b) (42 U.S.C. 9621(b)) is amended to read
as follows:
‘‘(b) GENERAL RULES. —
‘‘(1) SELECTION OF PROTECTIVE REMEDIES.—
Remedies selected at individual facilities shall be pro-
tective of human health and the environment and pro-
171
vide long-term reliability at reasonable cost. A reme-
dial action may achieve protection of human health
and the environment through treatment that reduces
the toxicity, mobility, or volume of hazardous sub-
stances, pollutants, or contaminants; containment or
other engineering controls to limit exposure; a com-
bination of treatment and containment; or other
methods of protection. The method or methods of re-
mediation appropriate for a given facility shall be de-
termined through the evaluation of remedial alter-
natives and the selection process under paragraphs
(2) and (3). When determining the appropriate reme-
dial method, treatment is to be preferred for hot spots
as defined under paragraph (3)(B). This preference
shall not apply to materials that do not constitute hot
spots.
‘‘(2) LAND USE.—(A) In selecting a remedy, the
President shall take into account the reasonably an-
ticipated future uses of land at a facility as required
by this Act. In identifying reasonably anticipated fu-
ture land uses the President shall consider factors,
which generally shall include the following:
‘‘(i) Any consensus recommendation of the
Community Working Group and any other views
expressed by members of the affected community.
172
‘‘(ii) The land use history of the facility
and surrounding properties, the current land
uses of the facility and surrounding properties,
recent development patterns in the area where
the facility is located, and population projections
for that area.
‘‘(iii) Federal or State land use designa-
tions, including Federal facilities and national
parks, State ground water or surface water re-
charge areas established under a State’s com-
prehensive protection plan for ground water or
surface water, and recreational areas.
‘‘(iv) The current land use zoning and fu-
ture land use plans of the local government with
land use regulatory authority.
‘‘(v) The potential for economic redevelop-
ment.
‘‘(vi) The proximity of the contamination to
residences, sensitive populations or ecosystems,
natural resources, or areas of unique historic or
cultural significance.
‘‘(vii) Current plans for the facility by the
property owner or owners, not including poten-
tial voluntary remedial measures.
173
‘‘(B) In developing its recommendation, the
Community Working Group shall consider factors (ii)
through (vii) of subparagraph (A), and the President
shall give substantial weight to that recommendation
where consensus is reached, or substantial weight to
the views of the affected community where the Com-
munity Working Group does not reach consensus in
accordance with section 117(g).
‘‘(C) All information considered by the President
in evaluating reasonably anticipated future land uses
under this paragraph shall be included in the admin-
istrative record under section 113(k).
‘‘(3) APPROPRIATE REMEDIAL ACTION.—(A) The
President shall identify and select an appropriate
remedy that prevents exposures in excess of protective
concentration levels established under subsection (d)
by balancing the following factors:
‘‘(i) The effectiveness of the remedy.
‘‘(ii) The long-term reliability of the rem-
edy, that is, its capability to achieve long-term
protection of human health and the environment
considering the preference for treatment of hot
spots.
‘‘(iii) Any short-term risk posed by the im-
plementation of the remedy to the affected com-
174
munity, to those engaged in the cleanup effort,
and to the environment.
‘‘(iv) The acceptability of the remedy to the
affected community.
‘‘(v) The reasonableness of the cost of the
remedy.
‘‘(B) HOT SPOTS.—The following shall apply to
the remediation of hot spots:
‘‘(i) For purposes of this section, the term
‘hot spot’ means a discrete area within a facility
that contains hazardous substances, pollutants or
contaminants that are present in high concentra-
tions, are highly mobile, or cannot be reliably
contained, that would present a significant risk
to human health or the environment should expo-
sure occur. The President shall develop guidelines
for the identification of hot spots. Such guide-
lines shall recommend appropriate field inves-
tigations that will not require extraordinarily
complex or costly measures.
‘‘(ii) In determining an appropriate remedy
for hot spots, the President shall consider the fac-
tors under subparagraph (A). With respect to the
factor in clause (v), the President shall use a
higher threshold for evaluating the reasonableness
175
of costs for hot spot treatment relative to the re-
mediation of non-hot spot materials.
‘‘(iii) The President shall select a remedy
requiring treatment of materials constituting hot
spots unless an appropriate treatment technology
is unavailable or is available only at unreason-
able cost. In such instances, the President shall
select an interim containment remedy for such
hot spot subject to adequate monitoring and pub-
lic reporting to ensure its continued integrity
and shall review the interim containment rem-
edy in accordance with subsection (c). When the
appropriate treatment technology becomes avail-
able, as determined by the President, that rem-
edy shall be considered in accordance with this
section.
‘‘(iv) Notwithstanding the presence of a hot
spot, the President may select a final contain-
ment remedy for hot spots at landfills and min-
ing sites or similar facilities under the following
circumstances:
‘‘(I) The hot spot is small relative to
the overall volume of waste or contamina-
tion being addressed, the hot spot is not
readily identifiable and accessible, and
176
without the presence of the hot spot contain-
ment would have been selected as the appro-
priate remedy under subparagraph (A) for
the larger body of waste or area of contami-
nation in which the hot spot is located.
‘‘(II) the volume and areal extent of
the hot spot is extraordinary compared to
other facilities, and it is highly unlikely due
to the size and other characteristics of the
hot spot that any treatment technology will
be developed that could be implemented at
reasonable cost.
Where final containment for a hot spot is selected, the
President shall publish an explanation of the basis for
that decision.
‘‘(4) GENERIC REMEDIES.—In order to stream-
line the remedy selection process and to facilitate
rapid voluntary action, the President shall establish,
taking into account the factors enumerated in para-
graph (3)(A), cost-effective generic remedies for cat-
egories of facilities, and expedited procedures that in-
clude community involvement for selecting generic
remedies at an individual facility. To be eligible for
selection at a facility, a generic remedy shall be pro-
tective of human health and the environment at that
177
facility. In appropriate cases, the President may se-
lect a generic remedy without considering alternatives
to the generic remedy.’’.
SEC. 503. MISCELLANEOUS AMENDMENTS TO SECTION 121.
(a) REVIEW.—Section 121(c) (42 U.S.C. 9621(c)) is
amended—
(1) in the first sentence, by striking out ‘‘initi-
ation’’ and inserting in lieu thereof ‘‘completion of all
physical on-site construction,’’;
(2) in the second sentence, by inserting ‘‘(1)’’
after ‘‘it is the judgment of the President that’’; and
(3) in the second sentence, by inserting after
‘‘section 104 or 106,’’ the following: ‘‘or (2) an in-
terim containment remedy was selected for such site
and an appropriate final remedial action is available
under subsection (b)(3)(B)(iii) and appropriate to se-
lect in accordance with subsection (b)(3)(A) of this
section,’’.
(b) Section 121(e)(1) (42 U.S.C. 9621(e)(1)) is amend-
ed by adding at the end thereof the following: ‘‘Furthermore,
no Federal, State, or local permit or permit application
shall be required for on-site or off-site activities conducted
under section 311(b).’’.
178
SEC. 504. RESPONSE AUTHORITIES.
(a) STUDIES AND INVESTIGATIONS.—Section 104(b)(1)
(42 U.S.C. 9604(b)(1)) is amended in the second sentence
by striking ‘‘studies’’ and all that follows through the end
of the sentence and inserting in lieu thereof the following:
‘‘actions, studies, or investigations as he may deem nec-
essary or appropriate to plan and direct response actions
or to enforce the provisions of this Act and shall be entitled
to recover the costs thereof.’’.
(b) DISPOSAL AUTHORITY.—Section 104(j) (42 U.S.C.
9604(j)) is amended—
(1) in paragraph (1), by striking ‘‘remedial’’ in
the first sentence and inserting ‘‘response’’;
(2) by striking paragraph (2);
(3) by redesignating paragraph (3) as para-
graph (2) and in that paragraph by striking ‘‘estate’’
and inserting ‘‘property’’; and
(4) by inserting after paragraph (2) (as redesig-
nated) the following new paragraph:
‘‘(3) DISPOSAL
AUTHORITY.—The President is
authorized to dispose of any interest in real property
acquired for use by the Administrator under this sub-
section by sale, exchange, donation, or otherwise and
any such interest in real property shall not be subject
to any of the provisions of section 120 except the no-
tice provisions of section 120(h)(1). Any moneys re-
179
ceived by the President pursuant to this paragraph
shall be deposited in the Fund.’’.
(c) PRIVATE PARTY REMOVAL LIMITATIONS.—Section
104(a)(2) (42 U.S.C. 9604(a)(2)) is amended by adding at
the end the following: ‘‘In any case in which implementa-
tion of a removal action is expected to obviate or in fact
does obviate the need to conduct a long-term remedial ac-
tion, such removal action must—
‘‘(A) comply with the protective concentra-
tion levels and other standards in subsections (b)
and (d) of section 121; and
‘‘(B) allow for public participation in ac-
cordance with section 117 to the maximum ex-
tent practicable.’’.
SEC. 505. REMOVAL ACTIONS.
(a) OBLIGATIONS FROM FUND.—Section 104(c)(1) (42
U.S.C. 9604(c)(1)) is amended—
(1) by striking ‘‘consistent with the remedial ac-
tion to be taken’’ and inserting ‘‘not inconsistent with
any remedial action that has been selected or is an-
ticipated at the time of the removal action,’’;
(2) by striking ‘‘$2,000,000’’ and inserting
‘‘$4,000,000’’; and
(3) by striking ‘‘12 months’’ and inserting ‘‘two
years’’.
180
(b) NON-EMERGENCY REMOVALS.—Section 120(e) (42
U.S.C. 9620(e)) is amended by adding at the end the follow-
ing new paragraph:
‘‘(7) NOTIFICATION OF AND CONCURRENCE FROM
EPA OR STATE FOR NON-EMERGENCY REMOVAL AC-
TIONS.—(A) Before the commencement of any non-
emergency removal action by a department, agency,
or instrumentality of the United States, such depart-
ment, agency, or instrumentality shall—
‘‘(i) notify the Environmental Protection
Agency and the State of the planned removal ac-
tion; and
‘‘(ii) obtain, in the case of facilities which
are listed or proposed for listing on the National
Priorities List, concurrence in the planned re-
moval action from the Environmental Protection
Agency or the State, as applicable.
‘‘(B) The lack of concurrence under clause (ii)
shall not delay the commencement of the remedial in-
vestigation and feasibility study in accordance with
the time requirements of this section. The require-
ments of this paragraph relating to notification and
concurrence shall not affect, alter, or supplant, di-
rectly or indirectly, the applicability of any State law
to the removal action concerned. Within a reasonable
181
period of time after any emergency removal action is
carried out by a department, agency, or instrumen-
tality of the United States, the department, agency, or
instrumentality shall notify the Environmental Pro-
tection Agency or the State, as appropriate, of the re-
moval action.’’.
SEC. 506. TRANSITION.
(a) EFFECTIVE DATE.—This title, and the amend-
ments made by this title, shall become effective 180 days
after the date of enactment of this Act. Remedies selected
under the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 following that effective
date shall be selected as provided in section 121(b) of that
Act (as amended by this Act) and subject to the Federal
and State requirements specified in section 121(d)(7) of
that Act (as amended by this Act).
(b) CONTINUED EFFECTIVENESS
OF REGULATIONS
AND GUIDANCE.—Until promulgation of the national goals
and the national risk protocol under section 121(d), the
President may continue to rely on current regulations and
guidance with regard to acceptable risk levels and the con-
duct of risk assessments.
(c) PRIOR RODS.—(1) Nothing in this Act shall place
upon the President an obligation to reopen a record of deci-
sion signed prior to the effective date of this title.
182
(2) If, pursuant to section 117 of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980, the President determines that a change to a record
of decision signed prior to the effective date of this title is
necessary, the President may apply the rules in effect at
the time the original record of decision was signed.
TITLE VI—MISCELLANEOUS
Sec. 601. Interagency agreements at mixed ownership and mixed responsibility
facilities.
Sec. 602. Transfers of uncontaminated property.
Sec. 603. Agreements to transfer by deed.
Sec. 604. Alternative or innovative treatment technologies.
Sec. 605. Definitions.
Sec. 606. Response claims procedures.
Sec. 607. Small business ombudsman.
Sec. 608. Consideration of local government cleanup priorities.
Sec. 609. Consistent application among regional offices.
Sec. 610. Study of participants.
Sec. 611. Public comment.
Sec. 612. Certification of environmental training and certification organizations.
Sec. 613. Savings clause.
Sec. 614. Federal entities and facilities.
SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNER-
SHIP AND MIXED RESPONSIBILITY FACILI-
TIES.
Section 120(e) (42 U.S.C. 9620(e)) is amended—
(1) by inserting at the end of paragraph (4) the
following new subparagraph:
‘‘(D) A provision allowing for the partici-
pation of other responsible parties (if any) in the
response action.’’; and
(2) by inserting after paragraph (7) the follow-
ing new paragraphs:
183
‘‘(8) EXCEPTION TO REQUIRED ACTION.—(A) A
department, agency, or instrumentality of the United
States that owns or operates a facility over which the
department, agency, or instrumentality exercised no
regulatory or other control over activities that directly
or indirectly resulted in a release or threat of a re-
lease of a hazardous substance shall be subject to the
requirements of paragraphs (1) through (6), other
than subparagraphs (F) and (G) of paragraph (5),
unless and to the extent the department, agency, or
instrumentality demonstrates to the satisfaction of the
Administrator that—
‘‘(i) no department, agency, or instrumen-
tality was the primary or sole source or cause of
a release or threat of release of a hazardous sub-
stance at the facility;
‘‘(ii) the activities either directly or indi-
rectly resulting in a release or threat of a release
of a hazardous substance at the facility were
pursuant to a statutory authority and occurred
before 1976; and
‘‘(iii) the person or persons primarily or
solely responsible for such release or threat of re-
lease are financially viable and are capable of
184
performing or financing all or a portion of the
response action at the facility.
‘‘(B) If the conditions listed in clauses (i)
through (iii) of subparagraph (A) are not met, the
applicable terms of this subsection apply to the de-
partment, agency, or instrumentality of the United
States at the facility. Upon determination by the Ad-
ministrator that a department, agency, or instrumen-
tality qualifies for the exception provided by this
paragraph, the head of such department, agency, or
instrumentality may exercise enforcement authority
under section 106. To the extent a person who has
been issued an order under the authority of this para-
graph seeks reimbursement under the provisions of
section 106, the relevant department, agency, or in-
strumentality, and not the Fund, shall be the source
of any appropriate reimbursement. If the relevant de-
partment, agency, or instrumentality has failed to ob-
tain the performance of response actions by respon-
sible parties pursuant to an order or consent decree
within 12 months after the facility has been listed on
the National Priorities List, the exception provided by
this paragraph shall be void and the department,
agency, or instrumentality shall, in consultation with
the Administrator and appropriate State authorities,
185
commence a remedial investigation and feasibility
study for such facility within six months after the ex-
piration of the 12-month period.
‘‘(9) An interagency agreement under this sec-
tion shall in no way impair or diminish the obliga-
tion of any department, agency, or instrumentality of
the United States to comply with requirements of ap-
plicable law, unless such requirements have been spe-
cifically—
‘‘(A) addressed; or
‘‘(B) waived;
without objection from the State prior to or at the
time the response action is selected pursuant to sec-
tion 121.’’.
SEC. 602. TRANSFERS OF UNCONTAMINATED PROPERTY.
Section 120(h)(4)(A) (42 U.S.C. 9620(h)(4)(A)) is
amended by striking ‘‘stored for one year or more,’’ in the
first sentence.
SEC. 603. AGREEMENTS TO TRANSFER BY DEED.
Section 120(h) (42 U.S.C. 9620(h)) is amended by
adding after paragraph (5) the following new paragraph:
‘‘(6) AGREEMENTS
TO
TRANSFER
BY
DEED.—
Nothing in this subsection shall be construed to pro-
hibit the head of the department, agency, or instru-
mentality of the United States from entering into an
186
agreement to transfer by deed real property or facili-
ties prior to the entering of such deed.’’.
SEC. 604. ALTERNATIVE OR INNOVATIVE TREATMENT TECH-
NOLOGIES.
Section 111(a) is amended by adding after paragraph
(6) the following new paragraph:
‘‘(7) ALTERNATIVE OR INNOVATIVE TREATMENT
TECHNOLOGIES.—Payment of no more than 50 per-
cent of response costs incurred by a potentially liable
party in taking actions approved by the Adminis-
trator to achieve required levels of response under this
Act after employing an alternative or innovative tech-
nology that fails to achieve a level of response re-
quired under this Act pursuant to an administrative
order or consent decree. The Administrator shall issue
guidance on the procedures for the appropriate level
of funding for response activities using alternative in-
novative technologies as defined in section 311(b)(10)
that are necessary to achieve a level of response re-
quired under this Act. The Administrator shall review
and update such guidance, as appropriate.’’.
SEC. 605. DEFINITIONS.
Section 101 (42 U.S.C. 9601) is amended as follows:
(1) Paragraph (10)(H) is amended by striking
‘‘subject to’’ and inserting ‘‘in compliance with’’.
187
(2) Paragraph (14) is amended by adding at the
end the following: ‘‘The term includes methane, but
only when a response action undertaken to address a
release or threat of release of a hazardous substance
(as otherwise defined in this paragraph) at a landfill
or similar site also addresses methane.’’.
(3) Paragraph (20) is amended—
(A) in subparagraph (A), by inserting ‘‘the
United States or’’ after ‘‘similar means to’’;
(B) in subparagraph (D)—
(i) in the first sentence by inserting
‘‘the United States or’’ after ‘‘does not in-
clude’’;
(ii) in the second sentence, by inserting
‘‘any department, agency, or instrumental-
ity of the United States or’’ before ‘‘any
State’’; and
(iii) in the second sentence, by striking
‘‘a’’ after ‘‘such’’ and inserting ‘‘depart-
ment, agency, or instrumentality of the
United States or’’; and
(C) by adding after subparagraph (D) the
following new subparagraphs:
‘‘(E)(i) The term ‘owner or operator’ includes a
trust or estate or a person who holds title to a vessel
188
or facility, or otherwise is affiliated with the vessel or
facility solely in a fiduciary capacity. Subject to
clauses (ii) and (iii), a fiduciary holding such title or
having such affiliation shall be personally subject to
the obligations and liabilities of an owner or operator
to the same extent as if the vessel or facility were held
by the fiduciary free of trust.
‘‘(ii) The personal obligations and liabilities of a
fidicuary referred to in clause (i) shall be limited to
the extent to which the assets of the trust or estate are
sufficient to indemnify the fiduciary, unless—
‘‘(I) the obligations and liabilities would
have arisen even if the person had not served as
fiduciary;
‘‘(II) the fiduciary’s own failure to exercise
due care with respect to a vessel or facility
caused or contributed to the release of hazardous
substances following establishment of the trust,
estate, or fiduciary relationship;
‘‘(III) the fiduciary had a role in establish-
ing the trust, estate, or fiduciary relationship,
and such trust, estate, or fiduciary relationship
has no objectively reasonable or substantial pur-
pose apart from the avoidance or limitation of
liability under this Act; or
189
‘‘(IV) the fiduciary has not complied with
such other requirements as the Administrator
may set forth by regulation.
‘‘(iii) A fiduciary shall not be personally liable
for undertaking or directing another to undertake a
response action under section 107(d)(1).
‘‘(F) The term ‘owner or operator’ shall not in-
clude the United States or any department, agency,
or instrumentality of the United States or a conserva-
tor or receiver appointed by a department, agency, or
instrumentality of the United States if the United
States or the conservator or receiver meets both of the
following conditions:
‘‘(i) The United States, conservator, or re-
ceiver acquired ownership or control of a vessel
or facility (or any right or interest therein)—
‘‘(I) in connection with the exercise of
receivership or conservatorship authority or
the liquidation or winding up of the affairs
of any entity subject to a receivership or
conservatorship, including any subsidiary
thereof; and
‘‘(II) in connection with the exercise of
any seizure or forfeiture authority.
190
‘‘(ii) The United States, conservator, or re-
ceiver does not participate in the management of
the vessel or facility operations that result in a
release or threat of release of hazardous sub-
stances and complies with such other require-
ments as the Administrator may set forth by reg-
ulation.’’.
(4) Paragraph (23) (relating to the terms ‘‘re-
move’’ and ‘‘removal’’) is amended—
(A) in the first sentence—
(i) by striking ‘‘terms’’ and inserting
‘‘term’’;
(ii) by striking ‘‘necessary’’ the first
place it appears and inserting ‘‘nec-
essarily’’; and
(iii) by inserting after ‘‘environment,
such actions’’ the phrase ‘‘or combination of
such actions’’;
(B) in the second sentence by striking ‘‘term
includes’’ and inserting ‘‘terms include’’; and
(C) by adding at the end the following:
‘‘The term ‘remove’ or ‘removal’ is not limited to
emergency situations and includes actions to ad-
dress future or potential exposures.’’.
191
(5) Paragraph (25) (relating to the terms ‘‘re-
spond’’ and ‘‘response’’) is amended—
(A) by striking ‘‘terms’’ and inserting
‘‘term’’;
(B) by striking the comma after ‘‘remedial
action;’’; and
(C) by striking ‘‘related thereto’’ and insert-
ing ‘‘(including attorneys’ fees and expert wit-
ness fees) and oversight activities related thereto
when such activities are undertaken by the Presi-
dent’’.
(6) Paragraph (29) (relating to the terms ‘‘dis-
posal’’, ‘‘hazardous waste’’, and ‘‘treatment’’) is
amended by inserting before the period the following:
‘‘, except that the term ‘hazardous substance’ shall be
substituted for the term ‘hazardous waste’ in the defi-
nitions of ‘disposal’ and ‘treatment’ ’’.
(7) Paragraph (33) (relating to the term ‘‘pollut-
ant or contaminant’’) is amended by striking ‘‘; ex-
cept that the’’ and inserting ‘‘. The’’.
(8) Paragraph (35) (relating to the term ‘‘con-
tractual relationship’’) is amended—
(A) in subparagraph (A)—
(i) by striking out clause (iii); and
192
(ii) in the matter preceding clause (i),
by striking out ‘‘clause (i), (ii), or (iii)’’
and inserting ‘‘clause (i) or (ii)’’;
(B) by amending subparagraph (B) to read
as follows:
‘‘(B)(i) To establish that the defendant had no
reason to know, as provided in clause (i) of subpara-
graph (A) of this paragraph, the defendant must have
undertaken, at the time of the acquisition, all appro-
priate inquiry into the previous ownership and uses
of the facility and its real property in accordance
with generally accepted good commercial and cus-
tomary standards and practices. For the purposes of
the preceding sentence and until the Administrator is-
sues or designates standards and practices as pro-
vided in clause (ii) of this subparagraph, the court
shall take into account any specialized knowledge or
experience on the part of the defendant, the relation-
ship of the purchase price to the value of the property
if uncontaminated, commonly known or reasonably
ascertainable information about the property, the ob-
viousness of the presence or likely presence of con-
tamination at the property, and the ability to detect
such contamination by appropriate investigation.
193
‘‘(ii) The Administrator may, by regulation, pro-
mulgate standards and practices or, by regulation,
designate standards and practices promulgated or de-
veloped by others, that satisfy the requirements of this
subparagraph. In issuing or designating such stand-
ards and practices, the Administrator shall consider
factors for the inquiry, including the following:
‘‘(I) Conduct of the inquiry by an environ-
mental professional.
‘‘(II) Inclusion of interviews with past and
present owners, operators, and occupants of the
facility and its real property for the purpose of
gathering information regarding the potential
for contamination at the facility and its real
property.
‘‘(III) Inclusion of a review of historical
sources, such as chain of title documents, aerial
photographs, building department records, and
land use records, to determine previous uses and
occupancies of the real property since it was first
developed.
‘‘(IV) Inclusion of a search for recorded en-
vironmental cleanup liens, filed under Federal,
State, or local law, against the facility or its real
property.
194
‘‘(V) Inclusion of a review of Federal, State,
and local government records, such as waste dis-
posal records; underground storage tank records;
and hazardous waste handling, generation, treat-
ment, disposal, and spill records, concerning con-
tamination at or near the facility or its real
property.
‘‘(VI) Inclusion of a visual inspection of the
facility and its real property and of adjoining
properties.
‘‘(VII) Any specialized knowledge or experi-
ence on the part of the defendant.
‘‘(VIII) The relationship of the purchase
price 
to 
the 
value 
of 
the 
property 
if
uncontaminated.
‘‘(IX) Commonly known or reasonably as-
certainable information about the property.
‘‘(X) The obviousness of the presence or like-
ly presence of contamination at the property,
and the ability to detect such contamination by
appropriate investigation
‘‘(iii) In the case of property for residential use
or other similar use, purchased by a nongovernmental
or noncommercial entity, a site inspection and title
195
search that reveal no basis for further investigation
satisfy the requirements of this subparagraph.’’; and
(C) By adding the following new subpara-
graph at the end thereof:
‘‘(E) The term ‘contractual relationship’ shall
not include the initial filing by a claimant of an
unpatented mining claim or the issuance of a patent
for any such claim.’’.
(9) The following new paragraphs are added
after paragraph (38):
‘‘(39) BONA FIDE PROSPECTIVE PURCHASER.—
The term ‘bona fide prospective purchaser’ means a
person who acquires ownership of a facility after the
date of enactment of the Superfund Reform Act of
1994, or a tenant of such a person, who can establish
each of the following by a preponderance of the evi-
dence:
‘‘(A) All active disposal of hazardous sub-
stances at the facility occurred before that person
acquired the facility.
‘‘(B) The person made all appropriate in-
quiry into the previous ownership and uses of
the facility and its real property in accordance
with generally accepted good commercial and
customary standards and practices. The regula-
196
tions promulgated by the Administrator pursu-
ant to paragraph (35)(B)(ii) shall satisfy the re-
quirements of this subparagraph. In the case of
property for residential or other similar use,
purchased by a nongovernmental or noncommer-
cial entity, a site inspection and title search that
reveal no basis for further investigation satisfy
the requirements of this subparagraph.
‘‘(C) The person provided all legally re-
quired notices with respect to the discovery or re-
lease of any hazardous substances at the facility.
‘‘(D) The person exercised appropriate care
with respect to hazardous substances found at the
facility by taking reasonable steps to stop on-
going releases, prevent threatened future releases
of hazardous substances, and prevent or limit
human or natural resource exposure to hazard-
ous substances previously released into the envi-
ronment.
‘‘(E) The person provides full cooperation,
assistance, and facility access to persons author-
ized to conduct response actions at the facility,
including the cooperation and access necessary
for the installation, integrity, operation, and
197
maintenance of any complete or partial response
action at the facility.
‘‘(F) The person is not affiliated with any
other person liable for response costs at the facil-
ity, through any direct or indirect familial rela-
tionship, or any contractual, corporate, or finan-
cial relationship other than that created by the
instruments by which title to the facility is con-
veyed or financed.
‘‘(40) FIDUCIARY.—
‘‘(A) Except as provided in subparagraph
(B), the term ‘fiduciary’ means a person who
owns or controls property—
‘‘(i) as a fiduciary within the meaning
of section 3(31) of the Employee Retirement
Income Security Act of 1974, or as a trust-
ee, 
executor, 
administrator, 
custodian,
guardian, conservator, or receiver acting for
the exclusive benefit of another person; and
‘‘(ii) who has not previously owned or
operated the property in a non-fiduciary
capacity.
‘‘(B) The term ‘fiduciary’ does not include
any person described in subparagraph (A)—
198
‘‘(i) who acquires ownership or control
of property to avoid the liability of such
person or any other person under this Act;
or
‘‘(ii) who owns or controls property on
behalf of or for the benefit of a holder of a
security interest.
‘‘(41) MUNICIPAL SOLID WASTE.—The term ‘mu-
nicipal solid waste’ means all waste materials gen-
erated by households, including single and multi-fam-
ily residences, and hotels and motels. The term also
includes waste materials generated by commercial, in-
stitutional, and industrial sources, to the extent such
wastes (A) are essentially the same as waste normally
generated by households, or (B) are collected and dis-
posed of with other municipal solid waste or sewage
sludge as part of normal municipal solid waste collec-
tion services, and, regardless of when generated, would
be considered conditionally exempt small quantity
generator waste under section 3001(d) of the Solid
Waste Disposal Act (42 U.S.C. 6921(d)). Examples of
municipal solid waste include food and yard waste,
paper, clothing, appliances, consumer product pack-
aging, disposable diapers, office supplies, cosmetics,
glass and metal food containers, elementary or sec-
199
ondary school science laboratory waste, and household
hazardous waste. The term does not include combus-
tion ash generated by resource recovery facilities or
municipal incinerators, or waste from manufacturing
or processing (including pollution control) operations
not essentially the same as waste normally generated
by households.
‘‘(42) MUNICIPALITY.—The term ‘municipality’
means a political subdivision of a State, including a
city, county, village, town, township, borough, parish,
school district, sanitation district, water district, or
other public entity performing local governmental
functions. The term also includes a natural person
acting in the capacity of an official, employee, or
agent of any entity referred to in the preceding sen-
tence in the performance of governmental functions.
‘‘(43) 
QUALIFIED
HOUSEHOLD
HAZARDOUS
WASTE COLLECTION PROGRAM.—The term ‘qualified
household hazardous waste collection program’ means
a program established by an entity of the Federal
Government, a State, a municipality, or an Indian
tribe that provides, at a minimum, for semiannual
collection of household hazardous wastes at accessible,
well-publicized collection points within the relevant
jurisdiction.
200
‘‘(44) SEWAGE
SLUDGE.—The term ‘sewage
sludge’ means solid, semisolid, or liquid residue re-
moved during the treatment of municipal waste
water, domestic sewage, or other waste water at or by
publicly owned or federally owned treatment works.
‘‘(45) SITE CHARACTERIZATION.—The term ‘site
characterization’ means an investigation that deter-
mines the nature and extent of a release or potential
release of a hazardous substance, pollutant, or con-
taminant, and that includes an on site evaluation
and sufficient testing, sampling, and other field data
gathering activities to analyze whether there has been
a release or threat of a release of a hazardous sub-
stance, pollutant, or contaminant, and the health and
environmental risks posed by such a release or threat
of release. The investigation also may include review
of existing information (available at the time of the
review), an off-site evaluation, or other measures that
the Administrator considers appropriate.
‘‘(46) OWNER, OPERATOR, OR LESSEE OF RESI-
DENTIAL PROPERTY.—The term ‘owner, operator, or
lessee of residential property’ refers to a person who
owns, operates, manages, or leases residential prop-
erty and who uses or allows the use of the residential
property exclusively for residential purposes. The
201
term ‘residential property’ refers to single or multi-
family residences, including accessory land, buildings,
or improvements incidental to such dwellings, which
are exclusively for residential use.
‘‘(47) SMALL BUSINESS.—The term ‘small busi-
ness’ refers to any business entity that employs no
more than 100 individuals and is a ‘small business
concern’ as defined under the Small Business Act (15
U.S.C. 631 et seq.).
‘‘(48) SMALL
NONPROFIT
ORGANIZATION.—The
term ‘small nonprofit organization’ means any orga-
nization that, at the time of disposal, did not distrib-
ute any part of its income or profit to its members,
directors, or officers, employed no more than 100 paid
individuals at the involved chapter, office, or depart-
ment, and was recognized as a non-profit organiza-
tion under section 501(c) of the Internal Revenue
Code of 1986.’’.
SEC. 606. RESPONSE CLAIMS PROCEDURES.
(a) AMENDMENT OF SECTION 111.—Section 111(a)(2)
(42 U.S.C. 9611(a)(2)) is amended by inserting after
‘‘under said plan’’ the phrase ‘‘, reasonable in amount based
on open and free competition or fair market value for simi-
lar available goods and services,’’.
202
(b) AMENDMENT OF SECTION 112.—Section 112(a) (42
U.S.C. 9612(a)(2)) is amended—
(1) in the first sentence, by adding after ‘‘unless
such claim is’’ the following: ‘‘(1) accompanied by an
audit prepared by an independent, certified public
accountant, and (2)’’; and
(2) by inserting after the first sentence the fol-
lowing: ‘‘The Administrator reserves the right to re-
view such audits to determine that the costs for which
the claimant is seeking reimbursement are consistent
with section 111(a) and, where necessary, withhold
claims or a portion thereof which are inconsistent
with section 111(a).’’.
SEC. 607. SMALL BUSINESS OMBUDSMAN.
The Administrator of the Environmental Protection
Agency shall establish a small business assistance section
within the small business ombudsman office at the Environ-
mental Protection Agency. This section shall—
(1) act as a clearinghouse of information for
small businesses on the Comprehensive Environmental
Response, Compensation and Liability Act of 1980,
including without limitation the allocation process in
section 130 of the Comprehensive Environmental Re-
sponse, Compensation and Liability Act of 1980 and
expedited settlements under section 122(g)(1); and
203
(2) provide general advice and assistance to
small businesses as to the allocation and settlement
processes, except that such advice and assistance shall
not include any legal advice as to liability or any
other legal representation. The ombudsman shall not
participate in the allocation process.
SEC. 608. CONSIDERATION OF LOCAL GOVERNMENT CLEAN-
UP PRIORITIES.
Section 104(c)(2) is amended—
(1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and
(2) by adding at the end the following new sub-
paragraph:
‘‘(B) In setting priorities for scheduling work and allo-
cating oversight resources for a remedial action at a facility
at which a potentially responsible party that is a State or
local government proposes to carry out the remedial action
(or a portion thereof), the Administrator should give higher
priority to such remedial action (or portion thereof) if the
State or local government demonstrates that the remedial
action (i) will have a public benefit; and (ii) will result
in the property on or adjacent to the facility being returned
to productive use. A private potentially responsible party
may request similar consideration, in the Administrator’s
discretion. Nothing in this subparagraph shall affect the re-
sponsibility of the Administrator to schedule and oversee
204
the conduct of remedial action so as to assure protection
of human health and the environment.’’.
SEC. 609. CONSISTENT APPLICATION AMONG REGIONAL OF-
FICES.
Section 115 (42 U.S.C. 9615), as amended by section
407, is further amended as follows:
(1) By inserting the following immediately before
‘‘The President’’: ‘‘(a) PRESIDENTIAL RULEMAKING
AND DELEGATION AUTHORITY.—’’.
(2) By inserting at the end thereof the following
new subsection:
‘‘(b) CONSISTENT APPLICATION AMONG REGIONAL OF-
FICES.—Each Regional Administrator should implement,
execute, and enforce this Act and regulations, guidance, and
policies established in accordance with this Act by (1) the
President (or by the Administrator pursuant to a delegation
from the President), or (2) the Administrator (or by the
Deputy Administrator or an Assistant Administrator pur-
suant to a delegation from the Administrator).’’.
SEC. 610. STUDY OF PARTICIPANTS.
(a) STUDY.—The Administrator shall undertake a
study of current Environmental Protection Agency proce-
dures for suspension and debarment of persons and business
entities, particularly response action contractors and to as-
sess the feasibility and cost of creating a nationwide data
205
base to track such persons. The study shall include, but shall
not be limited, to the following items:
(1) Whether the certification process pursuant to
40 CFR 32 regarding debarment and suspensions is
sufficient to uncover those persons who have pre-
viously served as a principal of a business entity af-
filiated or unaffiliated with the certifying entity.
(2) Whether the 3-year period for certification is
a sufficient length of time to uncover past activities.
(3) Whether the process under Federal regula-
tions for determining false certification is sufficient,
particularly for those persons who are attempting to
hide past debarment or suspension.
(4) The effectiveness of the current debarment
and suspension procedures.
(5) The practicability of coordination, through a
central data base, with other Federal agencies the
tracking and sharing of data on such persons who
have been debarred or suspended.
(6) The effectiveness of debarment and suspen-
sion on the future conduct of persons or business enti-
ties with regard to compliance with Federal and
State environmental laws.
206
(7) The extent of sharing data within the Envi-
ronmental Protection Agency and among its regional
offices.
(8) The cost of creating a central data base.
(b) REPORT AND RECOMMENDATIONS.—The Adminis-
trator shall report the findings of this study to Congress
within 12 months after the enactment of this Act. The Ad-
ministrator shall also make a recommendation to Congress
whether statutory language or further regulations are nec-
essary to correct any problems or deficiencies that may be
uncovered.
SEC. 611. PUBLIC COMMENT.
Nothing in this Act or any amendments made by this
Act shall limit the obligations of the President or the Ad-
ministrator to fully consider and respond to public com-
ments during any available comment period or otherwise
abridge the requirements of subchapter II of chapter 5 of
title 5, United States Code (commonly referred to as the
Administrative Procedures Act).
SEC. 612. CERTIFICATION OF ENVIRONMENTAL TRAINING
AND CERTIFICATION ORGANIZATIONS.
(a) REGULATIONS.—(1) Not later than 2 years after
enactment of this Act, the Administrator of the Environ-
mental Protection Agency shall publish guidelines, in ac-
cordance with subsection (b), for a model State program
207
for organizations that train and certify individuals to per-
form Phase I Environmental Site Assessments.
(2) The guidelines published under paragraph (1) may
include, but not be limited to, minimum standards relating
to—
(A) formal environmental training;
(B) continuing environmental education;
(C) environmental certification and testing pro-
cedures;
(D) revocation and disciplinary procedures;
(E) establishment of a code of ethics;
(F) consumer education;
(G) certification renewal procedures; and
(H) annual reporting of program activities.
(b) ESTABLISHMENT OF THE ENVIRONMENTAL CER-
TIFICATION BOARD.—(1) Not later than 60 days after en-
actment of this Act, the Administrator of the Environ-
mental Protection Agency shall establish a certification ad-
visory board to be known as the ‘‘Environmental Certifi-
cation Board’’ (hereafter in this section referred to as the
‘‘Board’’).
(2) The Board shall consist of a minimum of 6 mem-
bers, appointed by the Administrator, with a demonstrated
knowledge in the environmental field. The Board may in-
clude representatives from the Environmental Protection
208
Agency, environmental interest organizations, the chemical/
manufacturing industry, the environmental consulting
service industry, the insurance industry, the banking/in-
vestment industry, professional societies, private sector ac-
creditation organizations, State government, and other ap-
propriate representatives with a knowledge in the environ-
mental field.
(3) All members of the Board shall serve on a vol-
untary basis, except those members from the Environmental
Protection Agency.
(4) The Board shall appoint 1 member to serve as
Chairman of the Board who shall exercise the executive and
administrative functions of the Board.
(5) Not later than 6 months after the date of enactment
of this Act, the Board shall issue recommendations to the
Administrator which shall include, but not be limited to,
the minimum standards to be established under subsection
(a).
(c) STATE ADOPTION OF REGULATIONS.—(1) After the
publication of the guidelines under subsection (a), any
State may adopt regulations identical (except as provided
in paragraph (2) of this subsection) to the guidelines pro-
mulgated by the Administrator under subsection (a)(1).
(2) Nothing in this section shall be construed to pre-
empt any State from issuing and enforcing, at any time,
209
additional or more stringent guidelines and regulations re-
garding the training and certification of Phase I environ-
mental professionals.
(3) Nothing in this section shall be construed to require
a profession or occupation licensed by a State authority
and whose scope of practice, as defined by State law, in-
cludes Phase I Environmental Site Assessments to obtain
certification as a ‘‘certified Phase I Environmental Site
Professional’’ as a condition for performing Phase I Envi-
ronmental Site Assessments.
(4) Nothing in this section shall be construed to permit
a certified Phase I Environmental Professional to practice
within the scope of practice of a licensed profession or occu-
pation, as defined by State law, unless that individual also
meets the requirements of the State licensing statute.
(d) DETERMINATION OF COMPLIANCE.—(1) If a State
adopts the guidelines issued by the Administrator, any or-
ganization that seeks to obtain a determination of compli-
ance with the regulations set forth in subsection (c) may
submit to any such State, in which the organization is lo-
cated, information documenting such compliance.
(2) Such State shall make the determination of such
organization’s compliance or noncompliance with such reg-
ulations.
210
(3) Upon a determination of compliance under para-
graph (2), the State shall issue notice in writing to such
organization, indicating that such organization is an ‘‘Ap-
proved Phase I Environmental Training and Certification
Organization’’ in accordance with this Act. Such approval
shall be valid for a term to be set by the State, but no longer
than 5 years.
(4) A State may charge a reasonable fee, equal to the
cost of determining compliance under paragraph (2), to
each organization that applies for such determination. Any
such fees shall be listed as part of the regulations promul-
gated under subsection (c).
(5) Any organization that has received notice of a de-
termination of compliance from a State under paragraph
(3), may issue a diploma, certification, or other form of
degree, to any individual who has completed to its satisfac-
tion such organization’s curriculum and training program
signifying that the recipient is a ‘‘Certified Phase I Envi-
ronmental Professional’’ qualified to perform Phase I Envi-
ronmental Site Assessments.
(6) A State may periodically, or upon expiration of
a notification of a determination of compliance under para-
graph (3), review the program, curriculum, facilities, and
training methods of any such organization to determine
211
such organizations continued compliance with the regula-
tions promulgated under subsection (c).
(e) DEFINITIONS.—For purposes of this section:
(1) PHASE
I
ENVIRONMENTAL
SITE
ASSESS-
MENT.—The term ‘‘Phase I Environmental Site As-
sessment’’ means the process by which a person or en-
tity seeks to determine whether a particular parcel of
real property is subject to recognized environmental
conditions. These conditions indicate the presence or
likely presence of a hazardous substance or pollutant
or contaminant on a property under conditions that
indicate the existence of a release or threatened release
at the facility into structures on the property or into
the ground, ground water or surface water of the
property.
(2) CERTIFIED PHASE I ENVIORNMENTAL PRO-
FESSIONAL.—The term ‘‘Certified Phase I Environ-
mental Professional’’ means any person receiving cer-
tification to perform Phase I Environmental Site As-
sessments from an approved environmental training
and certification organization in accordance with this
section.
(3) APPROVED PHASE I ENVIRONMENTAL TRAIN-
ING AND CERTIFICATION ORGANIZATION.—The term
‘‘Approved Phase I Environmental Training and Cer-
212
tification Organization’’ means Phase I Environ-
mental Training and Certification Organization
whose curriculum, program, facilities, training, and
testing methods comply with the regulations adopted
by a State under this section.
SEC. 613. SAVINGS CLAUSE.
Nothing in this Act or any amendment made by this
Act shall affect the application of the Atomic Energy Act
of 1954 to any facility licensed by the Nuclear Regulatory
Commission.
SEC. 614. FEDERAL ENTITIES AND FACILITIES.
Section 120 (42 U.S.C. 9620) is amended as follows:
(1) By amending the heading to read as follows:
‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’.
(2) By amending paragraph (1) of subsection (a)
to read as follows:
‘‘(1)(A) Each department, agency, and instru-
mentality of the executive, legislative, and judicial
branches of the United States shall be subject to, and
comply with, all Federal, State, interstate and local
requirements, both substantive and procedural (in-
cluding any requirements for permits, reporting, or
any provisions for injunctive relief and such sanc-
tions as may be imposed by a court to enforce such
relief), regarding response actions related to, or man-
213
agement of, hazardous substances, pollutants, or con-
taminants in the same manner, and to the same ex-
tent, as any nongovernmental entity is subject to such
requirements, including enforcement and liability
under sections 106 and 107 of this title and the pay-
ment of reasonable service charges.
‘‘(B) The Federal, State, interstate, and local
substantive and procedural requirements referred to
in subparagraph (A) include, but are not limited to,
all administrative orders and all civil and adminis-
trative penalties and fines, regardless of whether such
penalties and fines are punitive or coercive in nature
or are imposed for isolated, intermittent, or continu-
ing violations. The United States hereby expressly
waives any immunity otherwise applicable to the
United States with respect to any such substantive or
procedural requirement (including, but not limited to,
any injunctive relief, administrative order or civil or
administrative penalty or fine referred to in the pre-
ceding sentence, or reasonable service charge).
‘‘(C) The reasonable service charges referred to in
this paragraph include, but are not limited to, fees or
charges assessed in connection with the processing
and issuance of permits, renewal of permits, amend-
ments to permits, review of plans, studies, and other
214
documents, and inspection and monitoring of facili-
ties, as well as any other nondiscriminatory charges
that are assessed in connection with a State, inter-
state, or local response program.
‘‘(D) Neither the United States, nor any agent,
employee, or officer thereof, shall be immune or ex-
empt from any process or sanction of any State or
Federal court with respect to the enforcement of any
injunctive relief.
‘‘(E) No agent, employee, or officer of the United
States shall be personally liable for any civil penalty
under any Federal or State response law with respect
to any act or omission within the scope of their offi-
cial duties. An agent, employee, or officer of the Unit-
ed States shall be subject to any criminal sanction
(including, but not limited to, any fine or imprison-
ment) under any Federal or State response law, but
no department, agency, or instrumentality of the exec-
utive, legislative, or judicial branch of the United
States shall be subject to any such sanctions.
‘‘(F) The waiver of sovereign immunity provided
in this paragraph shall not apply to the extent a
State law would apply any standard or requirement
to such Federal department, agency, or instrumental-
ity in a manner which is more stringent than such
215
standard or requirement would be applied to any
other person.
‘‘(G) Nothing in this section shall be construed
to affect the liability of any person or entity other
than a department, agency, or instrumentality of the
United States under sections 9606 and 9607 of this
title.
‘‘(H)(i) The Administrator may issue an order
under section 106 of this Act to any department,
agency, or instrumentality of the executive, legislative,
or judicial branch of the United States. The Adminis-
trator shall initiate an administrative enforcement
action against such a department, agency, or instru-
mentality in the same manner and under the same
circumstances as action would be initiated against
any other person.
‘‘(ii) No administrative order issued to such de-
partment, agency, or instrumentality shall become
final until such department, agency, or instrumental-
ity has had the opportunity to confer with the Ad-
ministrator.
‘‘(iii) Unless a State law in effect on the effective
date of the Superfund Reform Act of 1994, or a State
Constitution, requires the funds to be used in a dif-
ferent manner, all funds collected by a State from the
216
Federal Government from penalties and fines imposed
for violation of any substantive or procedural require-
ment referred to in subsection (a) of this section shall
be used by the State only for projects designed to im-
prove or protect the environment or to defray the costs
of environmental protection or enforcement.
‘‘(I) Each such department, agency, and instru-
mentality shall have the right to contribution protec-
tion set forth in section 113, when such department,
agency, or instrumentality resolves its liability under
this Act.’’.
(3) By striking paragraph (4) of subsection (a).
(4) By inserting ‘‘(other than the indemnifica-
tion requirements of section 119)’’ after ‘‘responsibil-
ity’’ in subsection (a)(3).
TITLE VII—FUNDING
Sec. 701. Authorization of appropriations.
Sec. 702. Orphan share funding.
Sec. 703. Agency for Toxic Substances and Disease Registry.
Sec. 704. Limitations on research, development, and demonstration programs.
Sec. 705. Authorization of appropriations from general revenues.
Sec. 706. Additional limitations.
Sec. 707. Uses of the fund.
SEC. 701. AUTHORIZATION OF APPROPRIATIONS.
Section 111(a) is amended by striking ‘‘$8,500,000,000
for the 5-year period beginning on the date of enactment
of the Superfund Amendments and Reauthorization Act of
1986, and not more than $5,100,000,000 for the period com-
mencing October 1, 1991, and ending September 30, 1994’’
217
and inserting ‘‘$9,600,000,000 for the period commencing
October 1, 1994, and ending September 30, 1999’’.
SEC. 702. ORPHAN SHARE FUNDING.
Section 111(a) is amended by adding after paragraph
(7) (as added by this Act) the following new paragraph:
‘‘(8) ORPHAN SHARE FUNDING.—Payment of or-
phan shares pursuant to section 130(e) of this Act.’’.
SEC. 703. AGENCY FOR TOXIC SUBSTANCES AND DISEASE
REGISTRY.
Section 111(m) (relating to ATSDR) is amended to
read as follows:
‘‘(m) AGENCY FOR TOXIC SUBSTANCES AND DISEASE
REGISTRY.—There shall be directly available to the Agency
for Toxic Substances and Disease Registry to be used for
the purpose of carrying out activities described in sub-
section (c)(4) of this section and section 104(i) of this Act
not less than $80,000,000 per fiscal year for each of fiscal
years 1995, 1996, 1997, 1998, and 1999. Any funds so made
available which are not obligated by the end of the fiscal
year in which made available shall be returned to the
Fund.’’.
SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT, AND
DEMONSTRATION PROGRAMS.
Section 111(n) is amended to read as follows:
218
‘‘(n) LIMITATIONS ON RESEARCH, DEVELOPMENT, AND
DEMONSTRATION PROGRAM.—
‘‘(1) SECTION 311(a).—From the amounts avail-
able in the Fund, not more than the following
amounts may be used for the purposes of section
311(a) of this title (relating to hazardous substance
research, demonstration, and training activities):
‘‘(A) For fiscal year 1995 $40,000,000.
‘‘(B) For fiscal year 1996 $50,000,000.
‘‘(C) For fiscal year 1997 $55,000,000.
‘‘(D) For fiscal year 1998 $55,000,000.
‘‘(E) For fiscal year 1999 $55,000,000.
No more than 10 percent of such amounts shall be
used for training under section 311(a) of this title for
any fiscal year.
‘‘(2) SECTION
311(d).—For each of the fiscal
years 1995, 1996, 1997, 1998, and 1999, not more
than $5,000,000 of the amounts available in the Fund
may be used for the purposes of section 311(d) of this
title (relating to university hazardous substance re-
search centers).’’.
SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM
GENERAL REVENUES.
Section 111(p)(1) is amended to read as follows:
219
‘‘(1) IN GENERAL.—The following sums are au-
thorized to be appropriated, out of any money in the
Treasury not otherwise appropriated, to the Hazard-
ous Substance Superfund:
‘‘(A) For fiscal year 1995, $250,000,000.
‘‘(B) For fiscal year 1996, $250,000,000.
‘‘(C) For fiscal year 1997, $250,000,000.
‘‘(D) For fiscal year 1998, $250,000,000.
‘‘(E) For fiscal year 1999, $250,000,000.
In addition there is authorized to be appropriated to
the Hazardous Substance Superfund for each fiscal
year an amount equal to so much of the aggregate
amount authorized to be appropriated under this sub-
section (and paragraph (2) of section 131(b) of this
title) as has not been appropriated before the begin-
ning of the fiscal year involved.’’.
SEC. 706. ADDITIONAL LIMITATIONS.
Section 111 is amended by adding after subsection (p)
the following new subsections:
‘‘(q) CITIZEN INFORMATION AND ACCESS OFFICES.—
For each of the fiscal years 1995, 1996, 1997, 1998, and
1999, not more than $50,000,000 of the amounts available
in the Fund may be used for the purposes of section 117(h)
of this Act (relating to citizen information and access of-
fices).
220
‘‘(r) VOLUNTARY RESPONSE PROGRAMS.—For each of
the fiscal years 1995 through 1999, not more than
$20,000,000 of the amounts available in the Fund may be
used for the purposes of section 128 of this Act (relating
to State voluntary cleanup programs).’’.
SEC. 707. USES OF THE FUND.
Section 111(a) is amended by adding after paragraph
(8) the following new paragraph:
‘‘(9) REIMBURSEMENT OF POTENTIALLY RESPON-
SIBLE
PARTY
COSTS.—If a potentially responsible
party and the Administrator enter into a settlement
under this Act in which the Administrator is reim-
bursed for its response costs, and if the Administrator
determines, through a Federal audit of response the
costs, that costs for which the Administrator was re-
imbursed—
‘‘(A) are unallowable due to contractor
fraud, or
‘‘(B) are unallowable under the Federal Ac-
quisition Regulations, or
‘‘(C) should be adjusted due to routine con-
tract and Environmental Protection Agency re-
sponse cost audit procedures,
then the Administrator is authorized to use the fund
to reimburse a potentially responsible party for any
221
costs identified under subparagraph (A), (B), or (C)
of this paragraph.’’.
TITLE VIII—ENVIRONMENTAL
INSURANCE RESOLUTION FUND
Sec. 801. Short title.
Sec. 802. Definitions.
Sec. 803. Environmental Insurance Resolution Fund.
Sec. 804. Resolution offers.
Sec. 805. Documentation of claims and insurance coverage.
Sec. 806. Amount of resolution offers.
Sec. 807. Acceptance of resolution offer.
Sec. 808. Resolution payments.
Sec. 809. Rejection of resolution offer and reimbursement to insurer.
Sec. 810. Financial Statements, audits, investigations, and inspections.
Sec. 811. Stay of pending litigation.
Sec. 812. Regulations.
Sec. 813. Court jurisdiction and penalties.
Sec. 814. Miscellaneous provisions.
Sec. 815. Reports.
Sec. 816. Effective date.
Sec. 817. Termination of authority to offer and accept resolution.
Sec. 818. Termination of fund.
SEC. 801. SHORT TITLE.
This title may be cited as the ‘‘Environmental Insur-
ance Resolution and Equity Act of 1994’’.
SEC. 802. DEFINITIONS.
For purposes of this title:
(1) APPLICABLE COSTS.—The term ‘‘applicable
costs’’ means applicable National Priorities List
(NPL) facility costs or applicable non-NPL facility
costs. Costs of removal shall be treated as applicable
costs only if the removal is conducted in accordance
with section 104, 106 or 122 of CERCLA or under
the regulations of the Administrator governing re-
222
moval actions (40 CFR 300.415 or any successor reg-
ulations).
(2) APPLICABLE NPL FACILITY COSTS.—The term
‘‘applicable NPL facility costs’’ means the costs for an
eligible NPL facility, —
(A) of response (as defined in section
101(25) of CERCLA);
(B) for natural resources damages under
section 107 of CERCLA; or
(C) to defend potential liability for the costs
described in subparagraph (A) or (B) or both,
including, but not limited to, attorney’s fees,
costs of suit, consultant and expert fees and costs,
and expenses for testing and monitoring.
(3) APPLICABLE NON-NPL FACILITY COSTS.—The
term ‘‘applicable non-NPL facility costs’’ means the
costs for a non-NPL facility—
(A) of removal (as defined in section
101(23) of CERCLA); and
(B) to defend potential liability for such
costs of removal, including, but not limited to,
attorney’s fees, costs of suit, consultant and ex-
pert fees and costs, and expenses for testing and
monitoring.
223
(4) BOARD.—The term ‘‘Board’’ means the
Board of Trustees of the Fund.
(5) CERCLA.—The term ‘‘CERCLA’’ means the
Comprehensive Environmental Response, Compensa-
tion and Liability Act of 1980 (42 U.S.C. 9601 et
seq.).
(6) ELIGIBLE COSTS.—The term ‘‘eligible costs’’
means the applicable costs incurred with respect to a
hazardous substance disposed of at an eligible facility
for which an eligible person either (A) has not been
reimbursed or (B) has been reimbursed and that are
the subject of a dispute between the eligible person
and an insurer. The term eligible costs shall not in-
clude any costs paid by the United States.
(7) ELIGIBLE FACILITY.—The term ‘‘eligible fa-
cility’’ means an eligible NPL facility or an eligible
non-NPL facility.
(8) ELIGIBLE NPL FACILITY.—The term ‘‘eligible
NPL facility’’ means any facility placed on the Na-
tional Priority List at any time, at which a hazard-
ous substance was disposed of on or before December
31, 1985.
(9) ELIGIBLE NON-NPL FACILITY.—The term ‘‘el-
igible non-NPL facility’’ means any site or facility
where a removal (as defined in section 101(23) of
224
CERCLA) was conducted pursuant to governmental
direction or oversight under CERCLA and the Na-
tional Contingency Plan at any time, at which a haz-
ardous substance was disposed of on or before Decem-
ber 31, 1985.
(10) ELIGIBLE PERSON.—The term ‘‘eligible per-
son’’ means any person that demonstrates, to the sat-
isfaction of the Resolution Fund, that such person ei-
ther—
(A) has received a notice at any time that
it may be a potentially responsible party pursu-
ant to CERCLA with respect to an eligible NPL
facility, which notice requests or demands that
such party perform response actions or pay re-
sponse costs or natural resource damages for such
facility; or
(B) is or was liable, or alleged to be liable,
at any time for a removal (as defined in section
101(23) of CERCLA) at any eligible facility,
and had entered into a valid insurance contract for
qualified insurance.
(11) FACILITY.—The term ‘‘facility’’ has the
same meaning as provided in section 101(9) of
CERCLA.
225
(12) FUND.—The term ‘‘Fund’’ means the Envi-
ronmental Insurance Resolution Fund.
(13) NPL.—The term ‘‘NPL’’ means the Na-
tional Priorities List.
(14) PERSON.—The term person means an indi-
vidual, firm, corporation, association, partnership,
consortium, joint venture, commercial entity or gov-
ernmental unit (including any predecessor in interest
or any subsidiary thereof).
(15) QUALIFIED INSURANCE.—The term ‘‘quali-
fied insurance’’ means insurance for comprehensive
general liability or commercial multi-peril insurance
coverage for any period prior to January 1, 1986.
For purposes of this paragraph, comprehensive gen-
eral liability insurance includes broad form liability,
general liability, commercial general liability, and ex-
cess or umbrella coverage; and commercial multi-peril
insurance includes broad form property, commercial
package, special multi-peril, and excess or umbrella
coverage. Such term shall not include any other in-
surance, such as environmental impairment liability
insurance, whether found in primary, excess, or um-
brella coverage.
226
(16) VALID
INSURANCE
CONTRACT.—The term
‘‘valid insurance contract’’ means a contract for
qualified insurance other than any of the following:
(A) An insurance contract with respect to
which a person has entered into a settlement
with an insurer providing, or where a final
judgment has provided, that the contract has
been satisfied and that such person has no right
to make any further claims under such contract.
(B) An insurance contract which covers
only a time period prior to the earliest date of
the action or status of the insured person which
resulted in liability or potential liability under
section 107 of CERCLA.
(C) An insurance contract with an insur-
ance company which is insolvent or in insol-
vency proceedings.
(D) An insurance contract which is the sub-
ject of a settlement between the insurance com-
pany and the insured pursuant to which the pol-
icy has been reformed to include an absolute ex-
clusion for pollution liability (‘‘absolute pollu-
tion exclusion’’).
(17) STATE.—The term ‘‘State’’ has the same
meaning as provided in section 101(27) of CERCLA.
227
SEC. 
803. 
ENVIRONMENTAL 
INSURANCE 
RESOLUTION
FUND.
(a) ENVIRONMENTAL INSURANCE RESOLUTION FUND
ESTABLISHED.—There is hereby established the Environ-
mental Insurance Resolution Fund.
(b) OFFICES.—The principal office of the Fund shall
be in the District of Columbia or at such other place as
the Fund may from time to time prescribe.
(c) STATUS OF RESOLUTION FUND.—Except as ex-
pressly provided in this title, the Fund shall not be consid-
ered an agency or establishment of the United States. The
members of the Board of Trustees shall not, by reason of
such membership, be deemed to be officers or employees of
the United States.
(d) BOARD OF TRUSTEES.—
(1) IN GENERAL.—The Fund shall be adminis-
tered by a Board of Trustees.
(2) MEMBERSHIP.—The Board shall consist of
the following:
(A) GOVERNMENTAL MEMBERS.—
(i) The Administrator of the Environ-
mental Protection Agency or the Adminis-
trator’s designee.
(ii) The Attorney General of the
United States or the Attorney General’s des-
ignee.
228
(B) PUBLIC MEMBERS.—Five public mem-
bers appointed by the President not later than
60 days after the date of enactment of this title,
not less than two of whom shall represent insur-
ers subject to section ll of the Internal Reve-
nue Code of 1986, and not less than two of whom
shall represent eligible persons as defined in sec-
tion 802(10). The public members shall be citi-
zens of the United States.
(C) EX-OFFICIO MEMBER.—The Secretary of
the Treasury shall serve as an ex officio member
of the Board.
(3) CHAIR.—The Chair of the Board shall be des-
ignated by the President from time to time from
among the members described in paragraph (2)(A).
No expenditure may be made, or other action taken,
by the Fund without the concurrence of the Chair of
the Board.
(4) COMPENSATION.—Governmental members of
the Board shall serve without additional compensa-
tion. Public members of the Board shall, while attend-
ing meetings of the Board or while engaged in duties
related to such meetings or other activities of the
Board pursuant to this title, be entitled to receive
compensation at the rate of $200 per day, including
229
travel time. While away from their homes or regular
places of business, members of the Board shall be al-
lowed travel and actual, reasonable and necessary ex-
penses to the same extent as officers of the United
States.
(5) TERM OF PUBLIC MEMBERS.—Public mem-
bers of the Board shall serve for a term of 5 years,
except that such members may be removed by the
President for any reason at any time. A public mem-
ber whose term has expired may continue to serve on
the Board until such time as the President appoints
a successor. The President may reappoint a public
member of the Board, but no such member may con-
secutively serve more than two terms.
(6) VACANCIES.—A vacancy on the Board shall
be filled in the same manner as the original appoint-
ment, except that such appointment shall be for the
balance of the unexpired term of the vacant position.
(7) QUORUM.—Four members of the Board shall
constitute a quorum for the conduct of business.
(8) MEETINGS.—The Board shall meet not less
than quarterly at the call of the Chair. Meetings of
the Board shall be open to the public unless the
Board, by a majority vote of members present in open
session, determines that it is necessary or appropriate
230
to close a meeting. The Chair shall provide at least
10 days notice of a meeting by publishing a notice in
the Federal Register and such notice shall indicate
whether it is expected that the Board will consider
closing all or a portion of the meeting. Nothing in
this paragraph shall be construed to apply to infor-
mal discussions or meetings among Board members.
(e) OFFICERS AND EMPLOYEES.—
(1) CHIEF EXECUTIVE OFFICER; CHIEF FINAN-
CIAL OFFICER.—(A) The Fund shall have a Chief Ex-
ecutive Officer appointed by the Board who shall exer-
cise any authority of the Fund under such terms and
conditions as the Board may prescribe.
(B) The Fund shall have a Chief Financial Offi-
cer appointed by the Board.
(2) COMPENSATION.—No officer or employee of
the Fund may be compensated by the Fund at an an-
nual rate of pay which exceeds the rate of basic pay
in effect from time to time for level I of the Executive
Schedule under section 5312 of title 5, United States
Code. No officer or employee of the Fund, other than
a member of the Board, may receive any salary or
other compensation from any source other than the
Fund for services rendered during the period of em-
ployment by the Fund.
231
(3) POLITICAL TEST OR QUALIFICATION.—No po-
litical test or qualification shall be used in selecting,
appointing, promoting, or taking other personnel ac-
tions with respect to officers, agents, and employees of
the Fund.
(4) ASSISTANCE
BY
FEDERAL
AGENCIES.—The
Attorney General, the Secretary of the Treasury, and
the Administrator of the Environmental Protection
Agency, may to the extent practicable and feasible,
and in their sole discretion, make personnel and other
resources available to the Fund. Such personnel and
resources may be provided on a reimbursable basis,
and any personnel so provided shall not be considered
employees of the Fund for purposes of paragraph (2).
(f) POWERS OF RESOLUTION FUND.—Notwithstanding
any other provision of law, except as provided in this title
or as may be hereafter enacted by the Congress expressly
in limitation of the provisions of this subsection, the Fund
shall have the power—
(1) to have succession until dissolved by Act of
Congress;
(2) to make and enforce such bylaws, rules and
regulations as may be necessary or appropriate to
carry out the purposes of this title;
232
(3) to make and perform contracts, agreements,
and commitments;
(4) to settle, adjust, and compromise, and with
or without consideration or benefit to the Fund re-
lease or waive in whole or in part, in advance or oth-
erwise, any claim, demand, or right of, by, or against
the Fund;
(5) to sue and be sued, complain and defend, in
any State, Federal or other court;
(6) to determine its necessary expenditures and
appoint, employ, and fix and provide for the duties,
compensation and benefits of officers, employees, at-
torneys, and agents, all of whom shall serve at the
pleasure of the Board; except that all amounts with-
drawn from the Treasury of the United States by or
on behalf of the Resolution Fund shall be certified by
a federally authorized certifying officer who is an em-
ployee of the Federal agency represented by the chair
of the Resolution Fund;
(7) to hire or accept the voluntary services of
consultants, experts, advisory boards, and panels to
aid the Fund in carrying out the purposes of this
title; and
233
(8) to take such other actions as may be nec-
essary to carry out the responsibilities of the Fund
under this title.
(g) BORROWING AUTHORITY.—Nothing in this title
shall be construed to permit the Fund to issue any evidence
of indebtedness or otherwise borrow money.
SEC. 804. RESOLUTION OFFERS.
(a) IN GENERAL.—The Fund shall offer one com-
prehensive resolution to each eligible person. The offer shall
be for a percentage of all the eligible costs of such eligible
person incurred in connection with all eligible facilities.
The amount of the offer shall be determined pursuant to
section 806.
(b) REQUESTS FOR RESOLUTION OFFERS.—
(1) IN GENERAL.—An eligible person may, at
any time after the promulgation of the interim final
regulations under section 812(a), file a request for a
resolution offer from the Fund.
(2) RESPONSE TO REQUEST.—Not later than 180
days after the receipt of a complete request as deter-
mined by the Fund, the Fund shall in writing—
(A) make a resolution offer to each eligible
person that has filed a request for a resolution
offer; or
234
(B) notify a person filing such a request
that such person is not an eligible person.
(c) JOINT VENTURES AND SUBSIDIARIES.—A joint
venture shall not be aggregated with any individual joint
venturer for purposes of this section but shall be treated as
a distinct entity for such purposes. All claims by subsidi-
aries shall be included in a single claim by the corporate
parent for purposes of this Act.
SEC. 805. DOCUMENTATION OF CLAIMS AND INSURANCE
COVERAGE.
(a) SCREENING OF CLAIMS.—
(1) DENIAL BY REASON OF FELONY.—The Fund
may deny a resolution offer to an otherwise eligible
person for a specific facility if the eligible person has
been convicted of a felony under any Federal or State
statute which has a material effect on the response
costs or natural resource damage incurred at the fa-
cility.
(2) FILING AND ACTIVE PURSUIT OF CLAIMS.—
The Fund may decide not to make an offer to an eli-
gible person unless the eligible person has filed a
claim and is actively pursuing the claim. The Fund
may also decide that an offer should be made to any
such person.
235
(b) FILING OF CLAIMS.—For the purposes of subsection
(a), an eligible person shall be deemed to have filed a claim
if the eligible person has notified one or more of its insurers
of the existence of a claim, or has engaged in active inves-
tigation and preparation of a claim, or has filed a lawsuit
seeking coverage for eligible costs. Failure to have filed a
claim or to have engaged in settlement discussions before
January 1, 1994, shall not be deemed to preclude an eligible
person from receiving an offer from the Fund if the eligible
person had not received any notice letter from a govern-
mental authority or one or more potentially responsible
parties asserting its potential liability under CERCLA at
any eligible facility until after January 1, 1993.
(c) ACTIVE PURSUIT OF CLAIMS.—For purposes of this
section, an eligible person shall be considered to be actively
pursuing a claim if—
(1) the person has filed a lawsuit against an in-
surer, or has filed a motion or another pleading in
a lawsuit against an insurer, or has engaged in any
discovery in a lawsuit against an insurer between
January 1, 1993, and December 31, 1993 regarding
eligible costs at an eligible facility;
(2) the person has engaged in settlement discus-
sions with an insurer between January 1, 1993, and
236
December 31, 1993 regarding eligible costs at an eligi-
ble facility;
(3) the person has engaged in active investiga-
tion and preparation of a claim before January 1,
1994;
(4) if the person has received a letter from an in-
surer rejecting coverage or reserving its rights to reject
coverage regarding eligible costs at an eligible facility,
the person has sent within 1 year thereafter an addi-
tional status report or letter apprising an insurer of
activities regarding an eligible facility; or
(5) the eligible person has sent a letter to an in-
surer notifying an insurer of the potential existence
of a claim regarding eligible costs at an eligible facil-
ity and has received no response from the insurer.
(d) DOCUMENTATION OF COVERAGE.—
(1) EFFECT OF DOCUMENTATION.—Coverage of
an eligible person for policy years prior to 1986 and
the applicable deductibles and limits on coverage shall
be confirmed to the satisfaction of the Fund by the
terms of the policies or other documentary proof of in-
surance provided by, or for, the eligible person in ac-
cordance with this subsection.
(2) SUBMISSION OF DOCUMENTARY EVIDENCE.—
After promulgation of regulations governing docu-
237
mentation requirements, an eligible person requesting
an offer shall submit: copies of its insurance policies,
or other documentary evidence sufficient to establish
the following six terms of coverage: insurance com-
pany, policy number, type of policy, duration of pol-
icy, deductible or self-insured retention, and limit of
coverage. Documentary evidence may consist of any
documents from an insurance company or broker or
documents of the eligible person or other party which
are generally contemporaneous with the term of the
policy or with subsequent retrospective rating under
the policy. Where documentary evidence (other than a
policy) is relied upon as the proof of coverage, an eli-
gible person must certify that it has undertaken a
good faith investigation of its records, that its submis-
sion is complete and accurate to the best of its infor-
mation and belief, and that it does not have a copy
of the insurance policy. If an eligible person submits
documentary evidence which does not establish all six
terms of coverage but which does establish the name
of the insurance company and one or more other
terms evidencing coverage, the named insurance com-
pany shall undertake an investigation for any policy
or other relevant documents evidencing the eligible
238
person’s coverage. At the conclusion of the investiga-
tion, the named insurance company shall—
(A) produce to the Fund any policies or
other documents relevant to the eligible person’s
claim of coverage; or
(B) certify that it has undertaken a good
faith investigation of its records and that it has
produced any and all policies or documents
available to the insurer and relevant to the eligi-
ble person’s claim of coverage.
Subsequent to the named insurance company’s pro-
duction or certification, the Fund shall decide whether
a person has provided adequate proof of insurance
based on the evidence presented. Submission of the six
terms of coverage referred to in this paragraph shall
be treated as adequate proof of insurance.
(e) PRIOR SETTLEMENTS.—
(1) DISCLOSURE.—Each eligible person shall be
required to disclose and certify the amounts and
terms of any settlement reached with an insurer for
eligible costs at eligible facilities. In the event that the
terms of such a settlement are subject to a protective
order or are otherwise confidential, the eligible person
may provide evidence of the confidential nature of the
settlement information to the Fund. Upon receipt of
239
such evidence, the Fund shall be obligated to preserve
the confidentiality of all such settlement information.
(2) EFFECT
OF
TITLE
ON
PRIOR
SETTLE-
MENTS.—This title shall have no effect on prior settle-
ments between eligible persons and an insurer.
SEC. 806. AMOUNT OF RESOLUTION OFFERS.
(a) RESOLUTION OFFERS.—The Fund shall make reso-
lution offers to each eligible person equal to the applicable
percentage (determined under this section) of the lesser of
the following:
(1) The eligible costs actually incurred by an eli-
gible person.
(2) The available coverage, as determined under
this section.
(b) APPLICABLE PERCENTAGE.—
(1) IN GENERAL.—For each eligible person that
has not established a litigation venue pursuant to
subsection (d), the applicable percentage shall be equal
to the facility location percentage for that person. For
each eligible person that has established one or more
litigation venues pursuant to subsection (d), the ap-
plicable percentage shall be comprised of one-half of
the facility location percentage for that person plus
one-half of the venue percentage for that person.
(2) FACILITY LOCATION PERCENTAGE.—
240
(A) ONE OR MORE ELIGIBLE NPL FACILI-
TIES.—For each eligible person, the Fund shall
establish a facility location percentage. The per-
centage shall be equal to the weighted average of
the State percentages for each eligible NPL facil-
ity for which such person has been identified as
a potentially responsible party. In determining
such weighted average, each such eligible facility
shall be accorded equal value, except as provided
in paragraph (4).
(B) NO
ELIGIBLE
NPL
FACILITIES.—For
each person not identified as a potentially re-
sponsible party at one or more eligible NPL fa-
cilities but who is, or is alleged to be, liable at
any time for removal (as defined in section
101(23) of CERCLA) at one or more eligible
non-NPL facilities, the Fund shall establish a fa-
cility location percentage equal to the weighted
average of the State percentages for each such eli-
gible non-NPL facility. In determining such
weighted average, each such facility shall be ac-
corded equal value.
(3) LITIGATION VENUE PERCENTAGE.—
(A) ONE OR MORE ELIGIBLE NPL FACILI-
TIES.—For each eligible person that has estab-
241
lished one or more litigation venues pursuant to
subsection (d) with respect to one or more eligible
NPL facilities, the Fund shall establish a litiga-
tion venue percentage. The percentage shall be
equal to the weighted average of the State per-
centages for each eligible NPL facility in each
State in which such eligible person has estab-
lished a litigation venue. In determining such
weighted average, each eligible NPL facility with
respect to which such person has established a
litigation venue shall be accorded equal value.
(B) NO
ELIGIBLE
NPL
FACILITIES.—For
each eligible person that does not have one or
more eligible NPL facilities and has established
litigation venue with respect to one or more eli-
gible non-NPL facilities pursuant to subsection
(d), the Fund shall establish a litigation venue
percentage equal to the weighted average of the
State percentages for each eligible non-NPL fa-
cility in each State in which such eligible person
has established a litigation venue. In determin-
ing such weighted average, each eligible non-NPL
facility with respect to which litigation venue
has been established shall be accorded equal
value.
242
(4) EXTRA WEIGHTING OF LARGE SITES.—In de-
termining the facility location percentage under para-
graph (2)(A), the Fund shall count a facility twice for
weighting purposes if—
(A) the facility is located in the same State
as the State in which litigation venue has been
established;
(B) the facility is included in the eligible
person’s coverage litigation in that venue; and
(C) total response costs incurred plus esti-
mated response costs exceed $50,000,000, as es-
tablished by governmental cost summaries or de-
mands, records or decision, or evidence satisfac-
tory to the Fund of costs actually incurred.
(c) STATE PERCENTAGE.—
(1) CONGRESSIONAL
FINDINGS.—The Congress
finds that as of January 1, 1994, State law generally
is more favorable to eligible persons that pursue
claims concerning eligible costs against insurers in
some States, that State law generally is more favor-
able to insurers with respect to such claims in some
States, and that in some States the law generally fa-
vors neither insurers nor eligible persons with respect
to such claims or that there is insufficient informa-
tion to determine whether such law generally favors
243
insurers or eligible persons with respect to such
claims. The Congress further finds that considerations
of equity and fairness require that resolution offers
made by the Fund must vary to reflect the relative
state of the law among the several States.
(2) 
STATE
PERCENTAGE
CATEGORIES.—The
States are hereby classified into the following percent-
age categories:
(A) 20 PERCENT.—The State percentage
shall be 20 percent for: Florida, Maine, Mary-
land, Massachusetts, Michigan, New York, North
Carolina, and Ohio.
(B) 60 PERCENT.—The State percentage
shall be 60 percent for: California, Colorado,
Georgia, Illinois, New Jersey, Washington, West
Virginia, and Wisconsin.
(C) 40 PERCENT.—For all other States the
State percentage shall be 40 percent.
(d) LITIGATION VENUE.—For purposes of this section,
litigation venue is considered established with respect to an
eligible person if—
(1) on or before December 31, 1993, the eligible
person had pending in a court of competent jurisdic-
tion a complaint against an insurer with respect to
eligible costs at an eligible facility; and
264
(4) WEIGHTED AVERAGE.—The weighted average
of eligible persons accepting or rejecting applicable
percentage determinations shall be determined by
multiplying the acceptances or rejections by eligible
persons listed under paragraph (1) times the number
of each such person’s eligible facilities (without regard
to whether or not any such is the subject of any law-
suit).
SEC. 817. TERMINATION OF AUTHORITY TO OFFER AND AC-
CEPT RESOLUTION.
(a) AUTHORITY TO ACCEPT REQUEST FOR RESOLU-
TION.—The authority of the Fund to accept requests for res-
olution shall terminate on the date 10 years after the enact-
ment of this Act.
(b) AUTHORITY TO OFFER RESOLUTIONS.—The au-
thority of the Fund to offer resolutions to eligible persons
shall terminate after the date 10 years and 180 days after
the date of the enactment of this Act.
(c) CONTINUING OBLIGATIONS.—Until termination of
the Fund, the Fund shall continue to—
(1) make payments pursuant to resolution offers
for any eligible facility which is identified at the time
of acceptance of the resolution offer or within 10
years after the enactment of this Act; or