443
‘‘(B) provided or generated by the
allocation parties, or
‘‘(C) generated by the allocator
during the allocation.
The documents and information in the
document repository shall be available
only to the parties to the allocation proc-
ess for review and copying at their own
expense, subject to the confidentiality
provisions of paragraph (2). The Adminis-
trator 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 dis-
closure 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, to-
gether with the record of any informa-
tion generated or obtained during the al-
444
location process, shall be confidential.
The allocator, each allocation party, the
Administrator, and the Attorney General
shall maintain such documents and mate-
rials, together with the record of any in-
formation 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 Federal, State,
or local judicial or administrative pro-
ceedings, except—
‘‘(A) a new allocation pursuant to
subsection (m) or (n) for the same re-
medial action, or
‘‘(B) an initial allocation for a dif-
ferent remedial action at the same fa-
cility.
Nothing in this section shall be construed
to authorize any person, including the al-
locator, to withhold any documents or in-
formation from Congress, or any duly au-
445
thorized Committee thereof, or limit in
any manner the right of Congress, or any
duly authorized 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
ADMISSIBIL-
ITY.—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, oth-
erwise discoverable or admissible, then
such original document, if subsequently
sought from such party, shall remain so.
If a fact generated or obtained during the
allocation was, in the hands of a witness,
otherwise 
discoverable 
or 
admissible,
then such fact, if subsequently sought
from such other party, shall remain so.
‘‘(4) NO
WAIVER
OF
PRIVILEGE.—The
submission of, documents, or information
446
pursuant to the allocation process shall
not be deemed to be a waiver of any
privilege, applicable to such documents
or information under any Federal or
State law or rule of discovery or evi-
dence.
‘‘(5) PROCEDURE
WHEN
DISCOVERY
IS
SOUGHT.—Any 
person, 
including 
the
United States and any Federal, State, or
local agency, department or instrumen-
tality, receiving any request for a state-
ment, document, or material submitted,
or for the record of any allocation pro-
ceeding, shall promptly notify the person
who originally submitted such item and,
except in the case of a request from the
Congress or a duly authorized committee
thereof, shall provide such submitting
person the opportunity to assert and de-
fend 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,
447
except as may be required by court
order.
‘‘(6) CIVIL PENALTY FOR VIOLATION OF
CONFIDENTIALITY.—Any person who fails
to maintain the confidentiality of any
statements, documents or information
generated or obtained during an alloca-
tion proceeding, or who releases any
such information in violation of this sec-
tion shall be subject to civil penalties of
up to $25,000 per violation. Such pen-
alties may be sought in a civil action ini-
tiated by the Attorney General on behalf
of the United States, or any allocation
party adversely affected by the failure 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 determine that—
‘‘(1) no rational interpretation of the
facts before the allocator, in light of the
factors required to be considered, would
form a reasonable basis for the shares as-
signed to the parties;
448
‘‘(2) the allocation was affected by
bias, fraud, or unlawful conduct; or
‘‘(3) the allocation was substantially
and directly affected by procedural error.
The allocator’s report may not be rejected
after the United States has accepted a settle-
ment offer (excluding de minimis or other ex-
pedited settlements under section 122(g))
based on the allocation. The Administrator
and the Attorney General shall make any such
determination within 180 days after the re-
ceipt of the first offer based on the allocator’s
report. The determinations of the Adminis-
trator and the Attorney General under this
subsection shall not be judicially reviewable.
No such determination may be delegated to
any officer or employee of the Environmental
Protection Agency or the Department of Jus-
tice below the level of an Assistant Secretary
or Acting Assistant Secretary with authority
for implementing this Act at the Environ-
mental Protection Agency or the Department
of Justice.
‘‘(m) SECOND ALLOCATION.—If the United
States rejects an allocator’s report, the parties
450
to the issuance of the allocator’s report;
or
‘‘(2) the allocator did not have infor-
mation concerning a person not subject
to the allocation who contributed 15 per-
cent or more of materials containing haz-
ardous 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 subsection shall not be subject to judi-
cial review.
‘‘(o) SETTLEMENT FOLLOWING ALLOCATION.—
‘‘(1) ACCEPTANCE OF OFFERS.—If, with-
in 90 days after issuance of the allocator’s
report for an allocation conducted under
subsection (a)(1), an allocation party—
‘‘(A) makes a written offer to set-
tle with respect to the response ac-
tion based on the percentage share
specified by the allocator and on the
additional terms and conditions of
settlement (other than the allocated
451
percentage share) that are acceptable
to the President, and
‘‘(B) is not in default on any infor-
mation requests under this Act,
then the President shall not seek a high-
er percentage 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 Attor-
ney General have rejected the allocation
report pursuant to subsection (l).
‘‘(2) EXPLANATION OF REFUSAL TO SET-
TLE.—If the Administrator and the Attor-
ney General determine not to settle on
the basis of the allocation, they shall pro-
vide the allocation parties and members
of the affected community with a written
explanation of the Administrator’s deter-
mination.
‘‘(3) SETTLEMENT
PROVISIONS.—Settle-
ments based on allocated shares shall in-
clude each of the following:
‘‘(A) A waiver of contribution
rights against all parties who are po-
452
tentially responsible parties for the
response action, as well as a waiver
of any rights to challenge any settle-
ment the President enters into with
any 
other 
potentially 
responsible
party.
‘‘(B) Covenants not to sue, consist-
ent with section 122(f), and provisions
regarding performance or adequate
assurance of performance of response
actions addressed in the settlement.
‘‘(C) A premium determined on a
site specific 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 resolved their liability to the
United States, except that no such
premium shall apply if all parties set-
tle or the settlement covers 100 per-
cent of response costs.
‘‘(D) Contribution protection, con-
sistent with section 113(f), regarding
matters addressed in the settlement.
453
Such settlement does not discharge
any of the other potentially respon-
sible parties unless its terms so pro-
vide, but it reduces the potential li-
ability of the others by the amount of
the settlement.
‘‘(E) Provisions through which the
settling parties shall receive reim-
bursement from the Fund for any re-
sponse costs incurred by such parties
in excess of the aggregate of their al-
located share and any premia re-
quired by the settlement. Such right
to reimbursement shall not be contin-
gent 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 pre-
mium authorized by paragraph (3)(C) for
litigation risk shall not exceed the follow-
ing:
‘‘(A) Five percent of the total costs
assumed by a settling party, where
settlements (and any orphan share
454
identified by the allocator) account
for 80 percent or more of responsibil-
ity at the facility.
‘‘(B) Ten percent of the total costs
assumed by a settling party, where
settlements (and any orphan share
identified by the allocator) account
for more than 60 percent and less
than 80 percent of responsibility at
the facility.
‘‘(C) Fifteen percent of the total
costs assumed by a settling party,
where settlements (and any orphan
share identified by the allocator) ac-
count for more than 40 percent and
less than 60 percent of responsibility
at the facility.
‘‘(D) Twenty percent of the total
costs assumed by a settling party,
where settlements (and any orphan
share identified by the allocator) ac-
count for 40 percent or less of respon-
sibility at the facility.
The Administrator shall have authority
to promulgate regulations to modify the
455
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 establish-
ing 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
REIMBURSE-
MENT.—In any settlement in which a
party agrees to perform response work in
excess of its share, the Administrator
shall have authority to carry out his duty
to reimburse settling parties under this
section pursuant to such reasonable pro-
cedures as the Administrator may pre-
scribe.
‘‘(6) REIMBURSEMENT CLAIMS.—The Ad-
ministrator shall require all claims for re-
imbursement to be supported by—
456
‘‘(A) 
documentation 
of 
actual
costs incurred; and
‘‘(B) sufficient information to en-
able the Administrator to determine
whether such costs were reasonable.
‘‘(7) SETTLEMENTS WITH SMALL BUSINESS
PARTIES.—In connection with any small
business allocation party that makes a
written offer to settlement pursuant to
paragraph (1), and that the President de-
termines 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 Ad-
ministrator may require independent au-
diting of any claim for reimbursement.
‘‘(p) POST-ALLOCATION LITIGATION.—
‘‘(1) IN
GENERAL.—The United States
may commence an action under section
107 against any person liable under that
section who has not resolved its liability
to the United States following allocation,
on or after 90 days following issuance of
the allocator’s report. In any such action,
457
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 allo-
cated to Federal, State, or local govern-
mental agencies, departments, or instru-
mentalities. Defendants in any such ac-
tion may implead only allocation parties
who did not resolve their liability 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 action under section 107 following al-
location, the Attorney General must cer-
458
tify, in the complaint, that the United
States has been unable to reach a settle-
ment that would be in the best interests
of the 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 contribution against any
person who was not identified as an allo-
cation party pursuant to subsection (c) or
subsequently identified as a potentially
liable party under subsection (n) (relat-
ing to new information).
‘‘(4) ADMISSIBILITY OF ALLOCATOR’S RE-
PORT.—The allocator’s report shall not be
admissible 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 ad-
missible solely for the purpose of assist-
ing the court in making an equitable allo-
cation of response costs among the rel-
ative shares of nonsettling liable parties.
‘‘(5) COSTS OF ALLOCATION PROCEDURE
ON ORPHAN SHARE.—
459
‘‘(A) INCLUDED
AS
COSTS
OF
RE-
SPONSE.—The costs of implementing
the allocation procedure set forth in
this section, including reasonable fees
and expenses of the allocator, shall be
considered necessary costs of re-
sponse for purposes of this Act.
‘‘(B) ORPHAN SHARE.—The costs at-
tributable to any funding of orphan
shares identified by the allocator pur-
suant to subsection (e)(4) also shall be
considered necessary costs of re-
sponse for purposes of this Act, and
shall be recoverable from liable par-
ties who do not resolve their liability
on the basis of the allocation.
‘‘(6) REJECTION
OF
SHARE
DETERMINA-
TION.—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 pe-
riod set forth in subsection (b), the
offeror shall be entitled to recover from
460
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 settlements and reimbursements with
respect to the facility other than those at-
tributable to insurance or indemnifica-
tion), is as, or more, favorable to the
offeror than the offer based on the alloca-
tion.
‘‘(q) REIMBURSEMENT FOR UAO PERFORM-
ANCE.—
‘‘(1) 
REIMBURSEMENT.—Parties 
who
satisfactorily perform work under an ad-
ministrative order issued under section
106(a) with respect to a remedial action
for which an allocation is required by
subsection (a)(1), shall be entitled to re-
imbursement for the reasonable and nec-
essary costs of work they perform in ex-
cess of the share assigned to them in the
allocation in accordance with the provi-
sions of this section, provided that the al-
461
location 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 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 reimburse-
ment shall be reduced by an amount
equal to the maximum litigation risk
premium provided for in subsection
(o)(4) based on the total allocated
shares of the allocation parties who
have not reached settlements with
the United States by the end of the
moratorium on commencement of ac-
tions provided in subsection (b); and
‘‘(D) waives contribution rights
against all parties who are poten-
tially responsible parties for the re-
sponse action, as well as waives any
462
rights to challenge any settlement the
President enters into with any other
potentially responsible party.
‘‘(2) OFFSET.—Any and all reimburse-
ment provided to a performing party for
work in excess of its share is subject to
equitable offset or reduction by the Ad-
ministrator 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 re-
imbursement 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
FUND-
ING.—The amount of orphan share fund-
ing 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 morato-
rium following allocation shall be en-
titled to full reimbursement of costs
463
in excess of the party’s share and at-
tributable by the allocator to the or-
phan share paid in nominal dollars
after the work is completed, but no
sooner than completion of the con-
struction of the remedial action.
‘‘(B) Performing parties who re-
tain their right to challenge the rem-
edy shall be reimbursed for 90 per-
cent of orphan share funding, paid in
nominal dollars after the work is
completed, but no sooner than com-
pletion of the construction of the re-
medial action, unless the orphan
share is less than 20 percent of re-
sponsibility 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
REIMBURSE-
MENT.—Reimbursement for work in ex-
cess of the performing party’s allocated
464
share but that is not attributable to the
orphan share shall be paid in nominal
dollars after work is completed, but no
sooner than completion of the construc-
tion of the remedial action, provided that
the performing party is entitled to all in-
terest (prejudgment and post judgment,
whether recovered from a party or
earned in a site account) that has ac-
crued 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 Ad-
ministrator shall require that all claims
for reimbursement be supported by—
‘‘(A) 
documentation 
of 
actual
costs incurred; and
‘‘(B) sufficient information to en-
able the Administrator to determine
whether such costs were reasonable.
‘‘(7) INDEPENDENT AUDITING.—The Ad-
ministrator may require independent au-
diting of any claim for reimbursement.
465
‘‘(r) CAPPED APPROPRIATED ENTITLEMENT.—
(1) The United States shall pay, subject to the
numerical limitation in paragraph (2), in the
fiscal year 1996, and in each fiscal year there-
after, reimbursements to eligible parties for
costs incurred and equitably attributable to
orphan shares in accordance with subsection
(h)(4)(A).
‘‘(2) There are authorized to be appro-
priated to the President from the Fund not to
exceed $300,000,000 for the fiscal year 1996,
and for each fiscal year thereafter for the pay-
ments required by paragraph (1), to remain
available until expended.
‘‘(s) 
PROCEDURES.—The 
Administrator,
after consultation 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 pro-
mulgate rules or publish guidance to restrict
the allocator’s discretion in the conduct of the
allocation.
‘‘(t) ROLE OF FEDERAL AGENCIES.—Federal
departments, agencies, or instrumentalities
466
that are identified as potentially responsible
parties shall be subject to, and be entitled to
the benefits of, the allocation process pro-
vided by this section to the same extent as any
other party.
‘‘(u) 
REPRESENTATION
OF
THE
UNITED
STATES AND AFFECTED STATES.—The Adminis-
trator and the Attorney General, and a rep-
resentative of any State that may be respon-
sible for a portion of the orphan share, shall
be entitled to review all documents and par-
ticipate in any phase of the allocation pro-
ceeding.
‘‘(v) ANNUAL REPORT.—The President shall
report annually to Congress on the adminis-
tration of the allocation scheme under this
section, and provide information comparing
allocation results with actual settlements at
multiparty facilities.
‘‘(w) SAVINGS PROVISIONS.—(1) Nothing in
this section shall in any way limit or affect the
President’s authority 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 fil-
467
ing of a judicial consent decree resolving that
party’s liability; or to file 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 af-
fect 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 expe-
dited settlements;
‘‘(B) the ability of a potentially re-
sponsible party at a facility to resolve its
liability to the United States or other par-
ties at any time before initiation or com-
pletion of the allocation process;
‘‘(C) the validity, enforceability, final-
ity, or merits of any judicial or adminis-
trative order, judgment, or decree that is
issued, signed, lodged, or entered with re-
spect to liability under this Act or that
468
authorizes 
modification 
of 
any 
such
order, judgment or decree; or
‘‘(D) the validity, enforceability, final-
ity or merits 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.—Not-
withstanding any other provision of this sec-
tion, any liability of a response action con-
tractor under this Act shall be determined in
accordance with section 119, to the extent
such liability arises from a person’s activities
as a response action contractor.’’.
SEC. 414. RECYCLING TRANSACTIONS.
(a) PURPOSES.—The purposes of this sec-
tion are—
(1) to promote the reuse and recy-
cling of scrap material in furtherance of
the goals of waste minimization and nat-
ural resource conservation while protect-
ing human health and the environment;
(2) to level the playing field between
the use of virgin materials and recycled
materials; and
469
(3) to remove the disincentives and
impediments to recycling because of po-
tential 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 
pro-
vided in subsections (b), (c), (d) and (e), a per-
son who arranged for the recycling of recycla-
ble material shall not be liable under section
107(a)(3) or 107(a)(4).
‘‘(b) RECYCLABLE MATERIAL DEFINED.—For
purposes 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 mate-
rial incident to or adhering to the scrap mate-
rial as a result of its normal and customary
use prior to becoming scrap.
‘‘(c) 
TRANSACTIONS
INVOLVING
SCRAP
PAPER, PLASTIC, GLASS, TEXTILES, OR RUBBER.—
470
Transactions involving 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 ar-
ranging for the recycling of recyclable mate-
rial) can demonstrate 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 recycla-
ble material.
‘‘(3) A substantial portion of the recy-
clable material 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 material
could have been a replacement or sub-
stitute for a product made, in whole or in
part, from a virgin raw material.
471
‘‘(5) For transactions occurring 90
days or more after the date of enactment
of this section, the person exercised rea-
sonable care to determine that the facil-
ity where the recyclable material would
be handled, processed, reclaimed, or oth-
erwise managed by another person (here-
inafter in this section referred to as a
‘consuming facility’) was in compliance
with substantive (not procedural or ad-
ministrative) provisions of any Federal,
State, or local environmental law or regu-
lation, or compliance order or decree is-
sued pursuant thereto, applicable to the
handling, processing, reclamation, stor-
age, or other management activities asso-
ciated 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 recy-
cling transaction; (B) the ability of the
person to detect the nature of the con-
suming facility’s operations concerning
its handling, processing, reclamation, or
472
other management activities associated
with the recyclable material; and (C) the
result of inquiries made to the appro-
priate Federal, State, or local environ-
mental agency (or agencies) regarding
the consuming facility’s past and current
compliance with substantive (not proce-
dural or administrative) provisions of
any Federal, State, or local environ-
mental law or regulation, or compliance
order or decree issued pursuant thereto,
applicable to the handling, processing,
reclamation, storage, or other manage-
ment activities associated with the recy-
clable material. For the purposes of this
paragraph, a requirement to obtain a per-
mit applicable to the handling, process-
ing, reclamation, or other management
activity associated with the recyclable
materials shall be deemed to be a sub-
stantive provision.
‘‘(d) 
TRANSACTIONS
INVOLVING
SCRAP
METAL.—
‘‘(1) 
Transactions 
involving 
scrap
metal shall be deemed to be arranging for
473
recycling if the person who arranged for
the transaction (by selling recyclable ma-
terial or otherwise arranging for the re-
cycling of recyclable material) can dem-
onstrate by a preponderance of the evi-
dence that at the time of the trans-
action—
‘‘(A) the person met the criteria
set forth in subsection (c) with re-
spect to the scrap metal;
‘‘(B) the person was in compliance
with any applicable regulations or
standards 
regarding 
the 
storage,
transport, management, or other ac-
tivities associated with the recycling
of scrap metal that the Administrator
promulgates under the Solid Waste
Disposal Act subsequent to the enact-
ment of this section and with regard
to transactions occurring after the ef-
fective date of such regulations or
standards; and
‘‘(C) the person did not melt the
scrap metal prior to the transaction.
474
‘‘(2) For purposes of paragraph (1)(C),
melting of scrap metal does not include
the thermal separation of 2 or more mate-
rials due to differences in their melting
points (referred to as ‘sweating’).
‘‘(3) For the purposes of this sub-
section, 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, except for scrap metals that the
Administrator excludes from this defini-
tion by regulation and steel shipping con-
tainers of a capacity from 30 liters to and
including 3,000 liters, whether intact or
not, having any hazardous substance (but
not metal bits or pieces) contained in or
adhering thereto.
‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—
(1) Transactions involving spent lead-acid
batteries, spent nickel-cadmium batteries or
other spent batteries shall be deemed to be ar-
475
ranging for recycling if the person who ar-
ranged for the transaction (by selling recycla-
ble 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—
‘‘(A) the person met the criteria set
forth in subsection (c) with respect to the
spent lead-acid batteries, spent nickel-
cadmium batteries, or other spent bat-
teries but did not recover the valuable
components of such batteries; and
‘‘(B)(i) with respect to transactions in-
volving lead-acid batteries, the person
was in compliance with applicable Fed-
eral environmental regulations or stand-
ards, and any amendments thereto, re-
garding the storage, transport, manage-
ment, or other activities associated with
the recycling of spent lead-acid batteries;
‘‘(ii) with respect to transactions in-
volving nickel-cadmium batteries, Fed-
eral environmental regulations or stand-
ards are in effect regarding the storage,
transport, management, or other activi-
476
ties associated with the recycling of
spent nickel-cadmium batteries, and the
person was in compliance with applicable
regulations or standards or any amend-
ments thereto; or
‘‘(iii) with respect to transactions in-
volving other spent batteries, Federal en-
vironmental regulations or standards are
in effect regarding the storage, transport,
management, or other activities associ-
ated with the recycling of such batteries,
and the person was in compliance with
applicable regulations or standards or
any amendments thereto.
‘‘(2) For purposes of paragraph (1)(A) of
this subsection, a person who, by contract, ar-
ranges or pays for processing of batteries by
an unrelated third person and receives from
such third person materials reclaimed from
such batteries shall not thereby be deemed to
recover the valuable components of such bat-
teries.
‘‘(f) EXCLUSIONS.—(1) The exemptions set
forth in subsections (c), (d), and (e) shall not
apply if—
477
‘‘(A) the person had an objectively
reasonable basis to believe at the time of
the recycling transaction—
‘‘(i) that the recyclable material
would not be recycled,
‘‘(ii) that the recyclable material
would be burned as fuel, or for en-
ergy recovery or incineration, or
‘‘(iii) for transactions occurring
before 90 days after the date of the
enactment of this section, that the
consuming facility was not in compli-
ance with a substantive (not a proce-
dural or administrative) provision of
any Federal, State, or local environ-
mental law or regulation, or compli-
ance order or decree issued pursuant
thereto, applicable to the handling,
processing, 
reclamation, 
or 
other
management 
activities 
associated
with the recyclable material; or
‘‘(B) the person added hazardous sub-
stances to the recyclable material for
purposes other than processing for recy-
cling; or
478
‘‘(C) the person failed to exercise rea-
sonable care with respect to the manage-
ment and handling of the recyclable ma-
terial.
‘‘(2) For purposes of this subsection, an
objectively reasonable 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 management activities associated
with the recyclable material.
‘‘(3) For purposes of this subsection, a re-
quirement to obtain a permit applicable to
the handling, processing, reclamation, or
other management activities associated with
recyclable material shall be deemed to be a
substantive provision.
‘‘(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).
479
‘‘(h) PCBS.—An exemption under this sec-
tion does not apply if the recyclable material
contained polychlorinated biphenyls in ex-
cess of 50 parts per million or any new stand-
ard promulgated pursuant to applicable Fed-
eral laws.
‘‘(i) REGULATIONS.—The Administrator has
the authority, under section 115, to promul-
gate additional regulations concerning this
section.
‘‘(j) EFFECT ON PENDING OR CONCLUDED AC-
TIONS.—The exemptions provided in this sec-
tion shall not affect any concluded judicial or
administrative action or any pending judicial
action initiated by the United States prior to
enactment of this section.
‘‘(k) LIABILITY
FOR ATTORNEY’S FEES
FOR
CERTAIN
ACTIONS.—Any person who com-
mences an action in contribution 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, in-
cluding all reasonable attorney’s and expert
witness fees.
480
‘‘(l) RELATIONSHIP
TO
LIABILITY
UNDER
OTHER LAWS.—Nothing in this section shall af-
fect—
‘‘(1) liability under any other Federal,
State, or local statute or regulation pro-
mulgated pursuant to any such statute,
including any requirements promulgated
by the Administrator under the Solid
Waste Disposal Act; or
‘‘(2) the ability of the Administrator
to promulgate regulations under any
other statute, including the Solid Waste
Disposal Act.’’.
SEC. 415. RELEASE OF EVIDENCE.
(a) TIMELY ACCESS TO INFORMATION FUR-
NISHED
UNDER
SECTION
104(e).—Section
104(e)(8)(A) 
(as 
redesignated 
by 
section
401(b)(1) of this Act) is further amended by in-
serting after ‘‘shall be available to the public’’
the following: ‘‘not later than 14 days after the
records, reports, or information is obtained’’.
(b) REQUIREMENT TO PROVIDE PRPS EVI-
DENCE OF LIABILITY.—(1) Subsection (a) of sec-
tion 106 (42 U.S.C. 9606(a)), as amended by
section 402(a) of this Act, is further amended