uted to, or consented to the release or threat of re-
lease of hazardous substances at the facility.
‘‘(7) In the case of an owner or operator, the
degree of care exercised with respect to hazardous
substances released at the facility, taking into ac-
count the characteristics of such hazardous sub-
stances.
‘‘(8) The cooperation of each allocation party in
performing the response action(s) and in providing
complete and timely information to the allocator.
‘‘(9) Such other equitable factors as the allo-
cator determines are appropriate.
‘‘(k) ALLOCATOR’S INFORMATION REQUESTS.—
‘‘(1) DUTY TO ANSWER.—Each person who re-
ceives any information request from the allocator
must provide a full and timely response thereto.
‘‘(2) 
CERTIFICATION.—Answers 
to 
the
allocator’s information requests shall include a cer-
tification by a representative of the person to whom
the request was directed who meets the criteria es-
tablished in section 270.11(a) of title 40 of the Code
of Federal Regulations that—
‘‘(A) the answers are true and correct to
the best of the representative’s knowledge,
‘‘(B) the answers are based on a diligent,
good faith search of records in the possession or
control of the person to whom the request was
directed,
‘‘(C) the answers are based on a reason-
able inquiry of the current and, when prac-
ticable and when reasonably expected to have
relevant knowledge, former officers, directors,
employees, and agents of the person to whom
the request was directed,
‘‘(D) the answers accurately reflect infor-
mation obtained in the course of conducting
such search and such inquiry,
‘‘(E) the representative executing the cer-
tification understands that there is a duty to
supplement any such answers if, during the al-
location process, any significant additional, new,
or different information becomes known to the
person to whom the request was directed, and
‘‘(F) the representative executing the cer-
tification understands that there are significant
penalties for submitting false information, in-
cluding the possibility of fine and imprisonment
for knowing violations.
‘‘(3) ALLOCATOR
TO
INFORM
RECIPIENTS.—
Each information request issued by the allocator
must be accompanied by—
‘‘(A) a cover letter (i) that explains the ob-
ligation of the person to provide a full and
timely response to the request, (ii) that briefly
summarizes each of the elements of the re-
quired certification, and (iii) that summarizes
the defenses to liability that may be available to
the person, and
‘‘(B) a printed form that sets forth the re-
quired certification and provides a space for the
recipient to sign and date the form before re-
turning it to the allocator.
‘‘(l) PENALTIES.—
‘‘(1) CIVIL.—Any person who willfully fails to
submit a complete and timely answer to an
allocator’s information request or request for pro-
duction of documents, or who submits a response
that lacks the certification required under subsection
(k)(2), or who knowingly makes any false or mis-
leading material statement or representation in any
statement, submission or testimony during the allo-
cation process, including statements or representa-
tions in connection with the nomination of another
potentially responsible party, may be subject to civil
penalties of up to $10,000 per day of violation. The
violation shall be deemed a continuing one until such
time as the request is answered or the necessary cer-
tification is submitted or the false or misleading
statement or representation is corrected. Such pen-
alties may be assessed by the President in accord-
ance with section 109 of this Act.
‘‘(2) CRIMINAL.—Any person who knowingly
and willfully makes any false material statement or
representation in response to an allocator’s informa-
tion request issued pursuant to subsection (k) shall
be deemed to have made a false statement on a mat-
ter within the jurisdiction of the United States with-
in the meaning of section 1001 of title 18, United
States Code.
‘‘(m) DOCUMENT REPOSITORY; CONFIDENTIALITY.—
‘‘(1) DOCUMENT
REPOSITORY.—The allocator
shall establish and maintain a document repository
containing copies of all documents and information
provided by the President or any allocation party
pursuant to this section or generated by the allo-
cator during the allocation. The documents and in-
formation in the document repository shall be avail-
able only to the allocation parties for review and
copying at their own expense, subject to the con-
fidentiality provisions of paragraph (2).
‘‘(2) CONFIDENTIALITY.—Except for docu-
ments and materials contained in the administrative
record established pursuant to section 113(k), 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 allocation process, shall be confidential.
The allocator, each allocation party, the Adminis-
trator, and the Attorney General shall maintain such
documents and materials, together with the record
of any depositions or testimony adduced during the
allocation, as confidential, and they are prohibited
from using any such material in any other matter or
proceeding or for any purpose other than the alloca-
tion process itself. Notwithstanding any other provi-
sion of law, the documents, materials, and records
described in the previous sentence shall not be sub-
ject to disclosure to any person 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 proceeding,
except (A) a new allocation pursuant to subsection
(o) or (s) for the same response action(s), and (B)
an initial allocation pursuant to this section for a
different response action at the same facility.
‘‘(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 that provided it, otherwise discoverable
or admissible, then such original document, if subse-
quently sought from such party, shall remain so. If
a fact generated or obtained during the allocation
was, in the hands of a witness, otherwise discover-
able or admissible, then such testimony, if subse-
quently sought from such other party, shall remain
so.
‘‘(4) NO WAIVER OF PRIVILEGE.—The submis-
sion of testimony, documents, or information pursu-
ant to the allocation process shall not constitute a
waiver of any privilege applicable to the testimony,
documents, or information under any Federal or
State law or rule of discovery or evidence.
‘‘(5) PROCEDURE
IF
DISCLOSURE
SOUGHT.—
Any person receiving any request for a statement,
document, or material submitted, or for the record
of any allocation proceeding, shall promptly notify
the person who originally submitted such item or
testimony in the allocation proceeding, and shall pro-
vide such submitter 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, except with
the written consent of the submitter or as may be
required by court order.
‘‘(6) CIVIL PENALTY.—Any person who fails to
maintain the confidentiality of any statements, docu-
ments, or information generated or obtained during
an allocation proceeding, or who releases any such
information in violation of this section, may be sub-
ject to civil penalties of up to $25,000 per violation.
Such penalties may be assessed by the President in
accordance with section 109 of this Act. In any such
administrative or judicial proceeding, it shall be a
complete defense that the statements, documents, or
information at issue (A) was in, or subsequently has
become part of, the public domain and not as a re-
sult of any violation of this subsection, (B) was al-
ready known by lawful means to the person receiving
such information in connection with the allocation
process, or (C) became known to such person after
disclosure in connection with the allocation process,