139
‘‘(E) The degree of care exercised by each
allocation party with respect to the hazardous
substance, taking into account the characteris-
tics of the hazardous substance.
‘‘(F) The cooperation of each allocation
party in contributing to the response action and
in providing complete and timely information
during the allocation process.
‘‘(G) Such other factors that the Adminis-
trator determines are appropriate by published
guidance. Any such guidance shall be consistent
with this Act and shall be published only after
notice and opportunity for public comment. An
alleged failure of the allocator to consider 1 or
more additional factors set forth in such guid-
ance shall not be deemed unlawful conduct or
procedural error for purposes of subsection
(l)(2) or (3).
‘‘(3) CONDUCT OF ALLOCATION PROCESS.—The
allocator shall conduct the allocation process and
render a decision based solely on the provisions of
this section, including the allocation factors specified
in paragraph (2). Each party to the allocation shall
be afforded an opportunity to be heard (either orally
or in writing, at the allocator’s discretion), and an
140
opportunity to comment on a draft allocation report.
The allocator shall not be required to respond to
comments.
‘‘(4) IDENTIFICATION OF ORPHAN SHARES.—
‘‘(A) COMPONENTS OF ORPHAN SHARE.—
The allocator may determine that a percentage
share for the facility is specifically attributable
to an orphan share. The orphan share shall
consist only of the following:
‘‘(i) Shares attributable to hazardous
substances that the allocator determines,
on the basis of information presented, to
be specifically attributable to identified but
insolvent or defunct allocation parties who
are not affiliated with any viable allocation
party.
‘‘(ii) The difference between the ag-
gregate shares that the allocator deter-
mines, on the basis of the information pre-
sented, is specifically attributable to alloca-
tion parties that are contributors of munic-
ipal solid waste subject to the limitations
in section 107(a)(7), and the share actu-
ally assumed by those parties in any settle-
ments with the United States pursuant to
141
section 122(g), including the fair market
value of in-kind services provided by a mu-
nicipality.
‘‘(iii) The difference between the ag-
gregate share that the allocator deter-
mines, on the basis of information pre-
sented, to be specifically attributable to al-
location parties with a limited ability to
pay response costs and the share actually
assumed by those parties in any settle-
ments with the United States pursuant to
section 122(g).
‘‘(iv) Shares that the allocator deter-
mines, on the basis of the information pre-
sented, are specifically attributable to par-
ties that, solely due to the operation of
subsection (d)(3), have no liability under
this Act for the costs of response actions
at the facility for which the allocation is
being performed.
‘‘(B) UNATTRIBUTABLE SHARES.—Shares
attributable to hazardous substances that the
allocator cannot attribute to any identified
party shall be distributed among the allocation
parties, including the orphan share.
142
‘‘(i) 
ANSWERS
AND
CERTIFICATIONS
TO
ALLOCATOR’S INFORMATION REQUESTS.—
‘‘(1) 
SUBPOENAS
AND
INFORMATION
RE-
QUESTS.—Where necessary to assist in determining
the allocation of shares, the allocator may request
information or documents from any allocation party
in accordance with paragraphs (2) or (5) of section
104(e), and require by subpoena the attendance of
persons or the production of documents, or other in-
formation in accordance with section 104(e)(7). Any
allocation party to whom a request is directed shall
include in the response a certification by a respon-
sible representative or authorized representative that
satisfies the requirement of section 104(e)(3). The
allocator may also request the Administrator to uti-
lize the authorities of paragraph (2) and to exercise
any information-gathering authority of the Adminis-
trator under this Act.
‘‘(2) POWERS OF THE ALLOCATOR.—In addi-
tion to the information-gathering authority set forth
in paragraph (1), the allocator shall have the au-
thority to schedule meetings and require the attend-
ance of allocation parties at such meetings; to re-
quire that allocation parties wishing to present simi-
lar legal or factual positions consolidate their pres-
143
entations; to obtain or employ support services, in-
cluding secretarial and clerical services, computer
support services, and legal and investigative services;
and to take any other actions necessary to conduct
a fair, efficient, and impartial allocation process.
‘‘(j) CIVIL AND CRIMINAL PENALTIES.—
‘‘(1) CIVIL PENALTIES.—Where the allocator is-
sues an administrative subpoena or information re-
quest pursuant to subsection (i), a party who unrea-
sonably fails to comply with the subpoena or request
shall be subject to a civil penalty not to exceed
$25,000 for each day of noncompliance.
‘‘(2) ENFORCEMENT.—The allocator may seek
enforcement of an administrative subpoena or infor-
mation request pursuant to subsection (i)(1), and
shall seek such enforcement by requesting that the
Attorney General commence an action to enforce the
subpoena or request. The Attorney General, within
30 days after receiving such request from the allo-
cator, shall—
‘‘(A) notify the allocator that the Attorney
General will commence an action to enforce the
subpoena or information request;
‘‘(B) notify the allocator that the Attorney
General will not seek enforcement of the sub-
144
poena or request because the subpoena or re-
quest is barred by law or would result in annoy-
ance, embarrassment, oppression, or undue bur-
den or expense to the party to whom it was is-
sued; or
‘‘(C) notify the allocator that the Attorney
General has insufficient information on which
to determine whether an enforcement action is
appropriate.
‘‘(3) FAILURE OF ATTORNEY GENERAL TO RE-
SPOND.—If the Attorney General fails to provide
any response to the allocator within 30 days of a re-
quest for enforcement of a subpoena or information
request, the allocator may retain counsel to com-
mence a civil action to enforce the subpoena or in-
formation request.
‘‘(4) PENALTY.—If the Attorney General or al-
locator prevails in an action to enforce an allocator’s
subpoena or information request, the party who
failed to comply shall be subject to a sanction that
may include civil penalties as provided in paragraph
(1). The court shall require such party to pay the
reasonable expenses, including attorney’s fees,
caused by the failure to comply, unless the court
finds that the failure was substantially justified or
145
that other circumstances make an award of expenses
unjust.
‘‘(5) CRIMINAL.—Any person who knowingly
and willfully makes any false material statement or
representation in the response to an allocator’s in-
formation request or subpoena issued pursuant to
subsection (i) shall be deemed to have made a false
statement on a matter within the jurisdiction of the
United States within the meaning of section 1001 of
title 18, United States Code.
‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIALITY.—
‘‘(1) DOCUMENT
REPOSITORY.—The allocator
shall establish and maintain a document repository
containing copies of all documents and informa-
tion—
‘‘(A) provided by the Administrator pursu-
ant to this section,
‘‘(B) provided or generated by the alloca-
tion parties, or
‘‘(C) generated by the allocator during the
allocation.
The documents and information in the document re-
pository shall be available only to the parties to the
allocation process for review and copying at their
own expense, subject to the confidentiality provisions
146
of paragraph (2). The Administrator shall provide to
the allocator all information obtained under section
104(e), including information entitled to protection
under section 1905 of title 18, United States Code,
or exempt from disclosure pursuant to section
552(a) of title 5, United States Code. An allocation
party shall not assert any privilege as a basis for
withholding any information from the allocator.
‘‘(2) CONFIDENTIALITY.—All documents and
materials submitted to the allocator or placed in the
document repository, together with the record of any
information generated or obtained during the alloca-
tion process, shall be confidential. The allocator,
each allocation party, the Administrator, and the At-
torney General shall maintain such documents and
materials, together with the record of any informa-
tion generated or obtained during the allocation, as
confidential and are prohibited from using any such
material in any other matter or proceeding, and
shall not be subject to disclosure under section 552
of title 5, United States Code. Such material shall
not be discoverable or admissible in any other Fed-
eral, State, or local judicial or administrative pro-
ceedings, except—
147
‘‘(A) a new allocation pursuant to sub-
section (m) or (n) for the same remedial action,
or
‘‘(B) an initial allocation for a different re-
medial action at the same facility.
Nothing in this section shall be construed to author-
ize any person, including the allocator, to withhold
any documents or information from Congress, or any
duly authorized Committee thereof, or limit in any
manner the right of Congress, or any duly author-
ized Committee thereof, to obtain such documents or
information. Any person disclosing such documents
or information to Congress shall notify the person
who produced such documents or information of the
fact of such disclosure pursuant to paragraph (5).
‘‘(3) DISCOVERABILITY AND ADMISSIBILITY.—
Notwithstanding the foregoing, if the original of any
document or material submitted to the allocator or
placed in the document repository was, in the hands
of the party which provided it, otherwise discover-
able or admissible, then such original document, if
subsequently sought from such party, shall remain
so. If a fact generated or obtained during the alloca-
tion was, in the hands of a witness, otherwise discov-
148
erable or admissible, then such fact, if subsequently
sought from such other party, shall remain so.
‘‘(4) NO WAIVER OF PRIVILEGE.—The submis-
sion of, documents, or information pursuant to the
allocation process shall not be deemed to be a waiver
of any privilege, applicable to such documents or in-
formation under any Federal or State law or rule of
discovery or evidence.
‘‘(5) 
PROCEDURE
WHEN
DISCOVERY
IS
SOUGHT.—Any person, including the United States
and any Federal, State, or local agency, department
or instrumentality, receiving any request for a state-
ment, document, or material submitted, or for the
record of any allocation proceeding, shall promptly
notify the person who originally submitted such item
and, except in the case of a request from the Con-
gress or a duly authorized committee thereof, shall
provide such submitting person the opportunity to
assert and defend the confidentiality of such item.
No person shall release or provide a copy of the item
to any person not a party to such allocation, other
than the Congress or a duly authorized committee
thereof, except as may be required by court order.
‘‘(6) CIVIL PENALTY FOR VIOLATION OF CON-
FIDENTIALITY.—Any person who fails to maintain
149
the confidentiality of any statements, documents or
information generated or obtained during an alloca-
tion proceeding, or who releases any such informa-
tion in violation of this section shall be subject to
civil penalties of up to $25,000 per violation. Such
penalties may be sought in a civil action initiated by
the Attorney General on behalf of the United States,
or any allocation party adversely affected by the fail-
ure to maintain confidentiality.
‘‘(l) REJECTION
OF ALLOCATOR’S REPORT.—The
Administrator and the Attorney General of the United
States may reject the allocator’s report if they jointly de-
termine that—
‘‘(1) no rational interpretation of the facts be-
fore the allocator, in light of the factors required to
be considered, would form a reasonable basis for the
shares assigned to the parties;
‘‘(2) the allocation was affected by bias, fraud,
or unlawful conduct; or
‘‘(3) the allocation was substantially and di-
rectly affected by procedural error.
The allocator’s report may not be rejected after the United
States has accepted a settlement offer (excluding de
minimis or other expedited settlements under section
122(g)) based on the allocation. The Administrator and
150
the Attorney General shall make any such determination
within 180 days after the receipt of the first offer based
on the allocator’s report. The determinations of the Ad-
ministrator and the Attorney General under this sub-
section shall not be judicially reviewable. No such deter-
mination may be delegated to any officer or employee of
the Environmental Protection Agency or the Department
of Justice below the level of an Assistant Secretary or Act-
ing Assistant Secretary with authority for implementing
this Act at the Environmental Protection Agency or the
Department of Justice.
‘‘(m) SECOND ALLOCATION.—If the United States
rejects an allocator’s report, the parties shall select a new
allocator pursuant to subsection (e) to perform, on an ex-
pedited basis, a new allocation based on the same record
available to the first allocator. The moratorium on com-
mencement of litigation and tolling of statutes of limita-
tion set forth in subsection (b) shall be extended until 90
days after the issuance of the second allocation report. If
the United States rejects the second allocation the Presi-
dent may, following the expiration of the moratorium on
commencement of litigation, commence an action under
section 107.
‘‘(n) NEW INFORMATION.—Any settling party, in-
cluding the United States, may seek a new allocation pur-
151
suant to subsection (h), where that party presents clear
and convincing information or the United States otherwise
determines on the basis of clear and convincing informa-
tion that—
‘‘(1) the allocator did not have information con-
cerning 35 percent or more of the materials contain-
ing hazardous substances at the facility, and that
this information has been discovered subsequent to
the issuance of the allocator’s report; or
‘‘(2) the allocator did not have information con-
cerning a person not subject to the allocation who
contributed 15 percent or more of materials contain-
ing hazardous substances at the facility, and that
this information has been discovered subsequent to
the issuance of the allocator’s report.
Determinations by the United States pursuant to this sub-
section shall not be subject to judicial review.
‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—
‘‘(1) ACCEPTANCE OF OFFERS.—If, within 90
days after issuance of the allocator’s report for an
allocation conducted under subsection (a)(1), an al-
location party—
‘‘(A) makes a written offer to settle with
respect to the response action based on the per-
centage share specified by the allocator and on
152
the additional terms and conditions of settle-
ment (other than the allocated percentage
share) that are acceptable to the President, and
‘‘(B) is not in default on any information
requests under this Act,
then the President shall not seek a higher percent-
age share other than the premia authorized by this
section, unless the President has rejected the offer
on a basis other than the percentage share, or unless
the Administrator and the Attorney General have re-
jected the allocation report pursuant to subsection
(l).
‘‘(2) EXPLANATION OF REFUSAL TO SETTLE.—
If the Administrator and the Attorney General de-
termine not to settle on the basis of the allocation,
they shall provide the allocation parties and mem-
bers of the affected community with a written expla-
nation of the Administrator’s determination.
‘‘(3) SETTLEMENT
PROVISIONS.—Settlements
based on allocated shares shall include each of the
following:
‘‘(A) A waiver of contribution rights
against all parties who are potentially respon-
sible parties for the response action, as well as
a waiver of any rights to challenge any settle-
153
ment the President enters into with any other
potentially responsible party.
‘‘(B) Covenants not to sue, consistent with
section 122(f), and provisions regarding per-
formance or adequate assurance of performance
of response actions addressed in the settlement.
‘‘(C) A premium determined on a site spe-
cific basis and subject to the limitations set
forth in paragraph (4), that compensates for
the United States litigation risk with respect to
potentially responsible parties who have not re-
solved their liability to the United States, ex-
cept that no such premium shall apply if all
parties settle or the settlement covers 100 per-
cent of response costs.
‘‘(D) Contribution protection, consistent
with section 113(f), regarding matters ad-
dressed in the settlement. Such settlement does
not discharge any of the other potentially re-
sponsible parties unless its terms so provide,
but it reduces the potential liability of the oth-
ers by the amount of the settlement.
‘‘(E) Provisions through which the settling
parties shall receive reimbursement from the
Fund for any response costs incurred by such
154
parties in excess of the aggregate of their allo-
cated share and any premia required by the set-
tlement. Such right to reimbursement shall not
be contingent on the United States recovery of
response costs from any responsible person not
a party to any settlement with the United
States.
‘‘(4) PREMIUM
LIMITATIONS.—The premium
authorized by paragraph (3)(C) for litigation risk
shall not exceed the following:
‘‘(A) Five percent of the total costs as-
sumed by a settling party, where settlements
(and any orphan share identified by the allo-
cator) account for 80 percent or more of re-
sponsibility at the facility.
‘‘(B) Ten percent of the total costs as-
sumed by a settling party, where settlements
(and any orphan share identified by the allo-
cator) account for more than 60 percent and
less than 80 percent of responsibility at the fa-
cility.
‘‘(C) Fifteen percent of the total costs as-
sumed by a settling party, where settlements
(and any orphan share identified by the allo-
cator) account for more than 40 percent and
155
less than 60 percent of responsibility at the fa-
cility.
‘‘(D) Twenty percent of the total costs as-
sumed by a settling party, where settlements
(and any orphan share identified by the allo-
cator) account for 40 percent or less of respon-
sibility at the facility.
The Administrator shall have authority to promul-
gate regulations to modify the premia percentages
established in this subsection. The Administrator
may not propose a rule before the date 36 months
after the enactment of this section, and no such rule
may take effect before the date 48 months after the
enactment of this section. Such rule must be based
upon an administrative record establishing that such
modification is necessary to reflect actual experience
regarding the litigation risk faced by the United
States in proceeding against nonsettling parties
under this section.
‘‘(5) AUTHORIZATION
OF
REIMBURSEMENT.—
In any settlement in which a party agrees to per-
form response work in excess of its share, the Ad-
ministrator shall have authority to carry out his
duty to reimburse settling parties under this section
156
pursuant to such reasonable procedures as the Ad-
ministrator may prescribe.
‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis-
trator shall require all claims for reimbursement to
be supported by—
‘‘(A) documentation of actual costs in-
curred; and
‘‘(B) sufficient information to enable the
Administrator to determine whether such costs
were reasonable.
‘‘(7) SETTLEMENTS
WITH
SMALL
BUSINESS
PARTIES.—In connection with any small business al-
location party that makes a written offer to settle-
ment pursuant to paragraph (1), and that the Presi-
dent determines has a limited ability or inability to
pay its allocated share, the President shall apply the
provisions of section 122(g)(1)(D)(ii).
‘‘(8) INDEPENDENT AUDITING.—The Adminis-
trator may require independent auditing of any
claim for reimbursement.
‘‘(p) POST-ALLOCATION LITIGATION.—
‘‘(1) IN
GENERAL.—The United States may
commence an action under section 107 against any
person liable under that section who has not resolved
its liability to the United States following allocation,
157
on or after 90 days following issuance of the
allocator’s report. In any such action, such person
shall be liable in accordance with section 107 for all
response costs not recovered through settlements
with other persons. Such recoverable costs shall in-
clude any federally funded orphan share identified in
accordance with subsection (h), but shall not include
any shares allocated to Federal, State, or local gov-
ernmental agencies, departments, or instrumental-
ities. Defendants in any such action may implead
only allocation parties who did not resolve their li-
ability to the United States. The Administrator and
the Attorney General shall issue guidelines to ensure
that the relief sought against de minimis parties
under principles of joint and several liability will not
be grossly disproportionate to their contribution to
the facility. The application of such guidelines is
committed to the discretion of the Administrator
and the Attorney General.
‘‘(2) CERTIFICATION.—In commencing any ac-
tion under section 107 following allocation, the At-
torney General must certify, in the complaint, that
the United States has been unable to reach a settle-
ment that would be in the best interests of the
158
United States. This certification shall not be subject
to judicial review.
‘‘(3) DEFENDANTS.—No person may commence
an action under section 107 or otherwise seek con-
tribution against any person who was not identified
as an allocation party pursuant to subsection (c) or
subsequently identified as a potentially liable party
under subsection (n) (relating to new information).
‘‘(4) ADMISSIBILITY
OF
ALLOCATOR’S
RE-
PORT.—The allocator’s report shall not be admissi-
ble in any court for any purpose, except as set forth
in this section. The allocator’s report, subject to the
rules and discretion of the court, may be admissible
solely for the purpose of assisting the court in mak-
ing an equitable allocation of response costs among
the relative shares of nonsettling liable parties.
‘‘(5) COSTS
OF
ALLOCATION
PROCEDURE
ON
ORPHAN SHARE.—
‘‘(A) 
INCLUDED
AS
COSTS
OF
RE-
SPONSE.—The costs of implementing the alloca-
tion procedure set forth in this section, includ-
ing reasonable fees and expenses of the allo-
cator, shall be considered necessary costs of re-
sponse for purposes of this Act.
159
‘‘(B) ORPHAN SHARE.—The costs attrib-
utable to any funding of orphan shares identi-
fied by the allocator pursuant to subsection
(e)(4) also shall be considered necessary costs
of response for purposes of this Act, and shall
be recoverable from liable parties who do not
resolve their liability on the basis of the alloca-
tion.
‘‘(6) REJECTION OF SHARE DETERMINATION.—
In any action by the United States under this title,
if the United States has rejected an offer of settle-
ment that is consistent with subsection (o) and that
was presented to the United States prior to the expi-
ration of the moratorium period set forth in sub-
section (b), the offeror shall be entitled to recover
from the United States the offeror’s reasonable costs
of defending the action after the making of the offer
(including reasonable attorneys’ fees) if the ultimate
resolution of liability or allocation of costs with re-
spect to the offeror (taking into account all settle-
ments and reimbursements with respect to the facil-
ity other than those attributable to insurance or in-
demnification), is as, or more, favorable to the
offeror than the offer based on the allocation.
‘‘(q) REIMBURSEMENT FOR UAO PERFORMANCE.—
160
‘‘(1) REIMBURSEMENT.—Parties who satisfac-
torily perform work under an administrative order
issued under section 106(a) with respect to a reme-
dial action for which an allocation is required by
subsection (a)(1), shall be entitled to reimbursement
for the reasonable and necessary costs of work they
perform in excess of the share assigned to them in
the allocation in accordance with the provisions of
this section, provided that the allocation report is
not rejected by the United States and, that, at the
end of the moratorium following the allocation, the
performing party, in consideration of such reim-
bursement—
‘‘(A) agrees not to contest liability for all
response costs not inconsistent with the Na-
tional Contingency Plan to the extent of the al-
located share;
‘‘(B) receives no covenant not to sue;
‘‘(C) agrees that its reimbursement shall
be reduced by an amount equal to the maxi-
mum litigation risk premium provided for in
subsection (o)(4) based on the total allocated
shares of the allocation parties who have not
reached settlements with the United States by
161
the end of the moratorium on commencement of
actions provided in subsection (b); and
‘‘(D) waives contribution rights against all
parties who are potentially responsible parties
for the response action, as well as waives any
rights to challenge any settlement the President
enters into with any other potentially respon-
sible party.
‘‘(2) OFFSET.—Any and all reimbursement pro-
vided to a performing party for work in excess of its
share is subject to equitable offset or reduction by
the Administrator upon a finding of a failure to per-
form any aspect of the remedy in a proper and time-
ly manner.
‘‘(3) TIME OF PAYMENT.—Any and all reim-
bursement to a performing party for work in excess
of its share shall be paid after work is completed,
but no sooner than completion of the construction of
the remedial action.
‘‘(4) LIMIT ON ORPHAN SHARE FUNDING.—The
amount of orphan share funding available to the
performing party shall be further limited as follows:
‘‘(A) Performing parties who fully waive
their right to challenge remedy selection at the
end of the moratorium following allocation shall
162
be entitled to full reimbursement of costs in ex-
cess of the party’s share and attributable by the
allocator to the orphan share paid in nominal
dollars after the work is completed, but no
sooner than completion of the construction of
the remedial action.
‘‘(B) Performing parties who retain their
right to challenge the remedy shall be reim-
bursed for 90 percent of orphan share funding,
paid in nominal dollars after the work is com-
pleted, but no sooner than completion of the
construction of the remedial action, unless the
orphan share is less than 20 percent of respon-
sibility at the site, in which case such parties
shall be reimbursed only 80 percent of the or-
phan share.
For purposes of this subsection ‘nominal dollars’
means actual dollars spent by the performing party,
without increase for interest or inflation.
‘‘(5) NONORPHAN SHARE REIMBURSEMENT.—
Reimbursement for work in excess of the performing
party’s allocated share but that is not attributable to
the orphan share shall be paid in nominal dollars
after work is completed, but no sooner than comple-
tion of the construction of the remedial action, pro-
163
vided that the performing party is entitled to all in-
terest (prejudgment and post judgment, whether re-
covered from a party or earned in a site account)
that has accrued on money recovered by the United
States from other parties for such work at the time
construction of the remedy is completed.
‘‘(6) REIMBURSEMENT CLAIMS.—The Adminis-
trator shall require that all claims for reimburse-
ment be supported by—
‘‘(A) documentation of actual costs in-
curred; and
‘‘(B) sufficient information to enable the
Administrator to determine whether such costs
were reasonable.
‘‘(7) INDEPENDENT AUDITING.—The Adminis-
trator may require independent auditing of any
claim for reimbursement.
‘‘(r) FUNDING OF ORPHAN SHARES.—
‘‘(1) LIMITATION ON OBLIGATIONS.—For each
settlement agreement entered into pursuant to sub-
section (o) that includes an orphan share, and for
each unilateral administrative order where the per-
son satisfies the requirements of subsection (q), the
United States shall reimburse the allocation parties,
including any Federal agency, for costs incurred and
164
equitably attributable to the orphan share. In no
case shall the United States obligate for such costs
and interest determined under paragraph (3) in ex-
cess of $300,000,000 in any fiscal year, plus any re-
maining unobligated balance of funds made available
under paragraph (2) from previous fiscal years. The
mandate to the United States to make obligations
and payments under this paragraph constitutes an
entitlement to those parties eligible to receive those
payments.
‘‘(2) There are authorized to be appropriated
from the Fund not to exceed $300,000,000 per year
for fiscal year 1996 and each succeeding fiscal year
for payments required by paragraph (1), to remain
available until expended.
‘‘(3) 
REIMBURSEMENT
DELAYS.—Notwith-
standing section 1341 of title 31, United States
Code, any sums found to be due and owing in excess
of amounts appropriated for agreements entered into
pursuant to subsection (o) and for unilateral admin-
istrative orders pursuant to subsection (q), shall be
paid from amounts made available under paragraph
(2) for subsequent fiscal years. Such sums shall in-
clude payment of interest on the unpaid balances in
165
an amount equal to the rate of interest on 1-year
Treasury bills, except as provided in subsection (q).
‘‘(s) PROCEDURES.—The Administrator, after con-
sultation with the Attorney General, may promulgate rules
(or guidance) of Agency organization, procedure, and
practices but shall not have additional authority, except
as specifically set forth in this section, to promulgate rules
or publish guidance to restrict the allocator’s discretion
in the conduct of the allocation.
‘‘(t) ROLE OF FEDERAL AGENCIES.—Federal depart-
ments, agencies, or instrumentalities that are identified as
potentially responsible parties shall be subject to, and be
entitled to the benefits of, the allocation process provided
by this section to the same extent as any other party.
‘‘(u) REPRESENTATION
OF
THE UNITED STATES
AND AFFECTED STATES.—The Administrator and the At-
torney General, and a representative of any State that
may be responsible for a portion of the orphan share, shall
be entitled to review all documents and participate in any
phase of the allocation proceeding.
‘‘(v) ANNUAL REPORT.—The President shall report
annually to Congress on the administration of the alloca-
tion scheme under this section, and provide information
comparing allocation results with actual settlements at
multiparty facilities.
166
‘‘(w) SAVINGS PROVISIONS.—(1) Nothing in this sec-
tion shall in any way limit or affect the President’s author-
ity to exercise the powers conferred by section 103, 104,
105, 106, or 122 of this title, or to commence an action
against a party where there is a contemporaneous filing
of a judicial consent decree resolving that party’s liability;
or to file a proof of claim or take other action in a proceed-
ing under title 11 of the United States Code.
‘‘(2) The procedures established in this section shall
not be construed to modify or affect in any way the prin-
ciples of retroactive, strict, joint and several liability under
this title.
‘‘(3) Nothing in this section shall limit or affect—
‘‘(A) the Administrator’s obligation to perform
an allocation for facilities that have been the subject
of partial or expedited settlements;
‘‘(B) the ability of a potentially responsible
party at a facility to resolve its liability to the Unit-
ed States or other parties at any time before initi-
ation or completion of the allocation process;
‘‘(C) the validity, enforceability, finality, or
merits of any judicial or administrative order, judg-
ment, or decree that is issued, signed, lodged, or en-
tered with respect to liability under this Act or that
167
authorizes modification of any such order, judgment
or decree; 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.
‘‘(x) RESPONSE ACTION CONTRACTOR.—A person
who is potentially liable under this Act solely as a response
action contractor with respect to a facility in accordance
with section 119 shall not be named as an allocation party
under this section with respect to that facility.’’.
SEC. 414. 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 impedi-
ments 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:
168
‘‘SEC. 129. RECYCLING TRANSACTIONS.
‘‘(a) LIABILITY CLARIFICATION.—As provided in
subsections (b), (c), (d) and (e), a person who arranged
for the recycling of recyclable material shall not be liable
under section 107(a)(3) or 107(a)(4).
‘‘(b) RECYCLABLE MATERIAL DEFINED.—For pur-
poses of this section, the term ‘recyclable material’ means
scrap paper, scrap plastic, scrap glass, scrap textiles,
scrap rubber (other than whole tires), scrap metal, or
spent lead-acid, spent nickel-cadmium and other spent
batteries, as well as minor amounts of material incident
to or adhering to the scrap material as a result of its nor-
mal and customary use prior to becoming scrap.
‘‘(c) TRANSACTIONS
INVOLVING
SCRAP
PAPER,
PLASTIC, GLASS, TEXTILES, OR RUBBER.—Transactions
involving scrap paper, scrap plastic, scrap glass, scrap tex-
tiles, or scrap rubber (other than whole tires) shall be
deemed to be arranging for recycling if the person who
arranged for the transaction (by selling recyclable material
or otherwise arranging for the recycling of recyclable ma-
terial) can demonstrate by a preponderance of the evi-
dence that all of the following criteria were met at the
time of the transaction:
‘‘(1) The recyclable material met a commercial
specification grade.
169
‘‘(2) A market existed for the recyclable mate-
rial.
‘‘(3) A substantial portion of the recyclable ma-
terial was made available for use as a feedstock for
the manufacture of a new saleable product.
‘‘(4) The recyclable material could have been a
replacement or substitute for a virgin raw material,
or the product to be made from the recyclable mate-
rial could have been a replacement or substitute for
a product made, in whole or in part, from a virgin
raw material.
‘‘(5) For transactions occurring 90 days or
more after the date of enactment of this section, the
person exercised reasonable care to determine that
the facility where the recyclable material would be
handled, processed, reclaimed, or otherwise managed
by another person (hereinafter in this section re-
ferred to as a ‘consuming facility’) was in compli-
ance with substantive (not procedural or administra-
tive) provisions of any Federal, State, or local envi-
ronmental law or regulation, or compliance order or
decree issued pursuant thereto, applicable to the
handling, processing, reclamation, storage, or other
management activities associated with the recyclable
material.
170
‘‘(6) For purposes of this subsection, ‘reason-
able care’ shall be determined using criteria that in-
clude (but are not limited to) (A) the price paid in
the recycling transaction; (B) the ability of the per-
son to detect the nature of the consuming facility’s
operations concerning its handling, processing, rec-
lamation, or other management activities associated
with the recyclable material; and (C) the result of
inquiries made to the appropriate Federal, State, or
local environmental agency (or agencies) regarding
the consuming facility’s past and current compliance
with substantive (not procedural or administrative)
provisions of any Federal, State, or local environ-
mental law or regulation, or compliance order or de-
cree issued pursuant thereto, applicable to the han-
dling, processing, reclamation, storage, or other
management activities associated with the recyclable
material. For the purposes of this paragraph, a re-
quirement to obtain a permit applicable to the han-
dling, processing, reclamation, or other management
activity associated with the recyclable materials shall
be deemed to be a substantive provision.
‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—
‘‘(1) Transactions involving scrap metal shall be
deemed to be arranging for recycling if the person