SEC. 204. THE STATE REGISTRY.
Section 105(a)(8) of the Act (42 U.S.C. 9605(a)(8))
is amended by adding after subparagraph (B) the follow-
ing new subparagraph:
‘‘(C) STATE
REGISTRY.—Each State shall
maintain and make available to the public a list of
facilities in the State that are believed to present a
current or potential hazard to human health or the
environment due to the release or threatened release
of hazardous substances or pollutants or contami-
nants. Each State, in consultation with the Adminis-
trator and other appropriate Federal agencies, shall
update such listing on an annual basis.’’.
SEC. 205. CONFORMING AND MISCELLANEOUS AMEND-
MENTS.
(a) TRANSFER OF SECTION 121(e)(2).—(1) Section
121(e) is amended—
(A) by striking out paragraph (2); and
(B) by striking out ‘‘PERMITS AND ENFORCE-
MENT.—(1)’’ and inserting ‘‘PERMITS.—’’.
(2) Section 121(f) is amended by adding at the end
the following new paragraphs:
‘‘(4) A State may enforce any Federal or State stand-
ard, requirement, criteria, or limitation to which the reme-
dial action is required to conform under this Act in the
United States district court for the district in which the
facility is located.
‘‘(5) The President shall provide to any State within
a 50-mile radius of a remedial action at a Federal facility
a reasonable opportunity to review and comment on each
of the following:
‘‘(A) The remedial investigation and feasibility
study and all data and technical documents leading
to its issuance.
‘‘(B) The planned remedial action identified in
the remedial investigation and feasibility study.
‘‘(C) The engineering design following selection
of the final remedial action.
‘‘(D) Other technical data and reports relating
to implementation of the remedy.
‘‘(E) Any proposed finding or decision by the
President to exercise the authority of subsection
(d)(7)(e).’’.
(b) SECTION 126(a).—Section 126(a) is amended by
adding after ‘‘section 104(i) (regarding health authori-
ties)’’ the following: ‘‘, section 127 (regarding contracts
and cooperative agreements), section 128 (regarding vol-
untary response actions), subsection (f) of section 121 (re-
lating to cleanup standards), section 122(d)(1)(D) (relat-
ing to compliance with consent decrees),’’.
(c) SECTION 310(a).—Section 310(a) is amended by
inserting ‘‘(including any State)’’ after ‘‘person’’.
(d) TRANSITION.—Subsection (d) of section 104 is
amended by adding at the end the following new para-
graph:
‘‘(5) TERMINATION.—This subsection shall cease to
be in effect on the effective date of regulations promul-
gated to implement section 127, as added by the
Superfund Reform Act of 1995.’’.
SEC. 206. STUDY OF AUTHORIZATION OF STATES TO CARRY
OUT SUPERFUND.
The Administrator of the Environmental Protection
Agency shall conduct a study of the feasibility of authoriz-
ing States to use their own laws to carry out the provisions
of the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 in lieu of the Federal
program established under such Act.
SEC. 207. STATE ROLE AT FEDERAL FACILITIES.
Subsection (g) of section 120 is amended to read as
follows:
‘‘(g) TRANSFER OF AUTHORITIES.—
‘‘(1) STATE APPLICATION FOR TRANSFER OF
AUTHORITIES.—A State may apply to the Adminis-
trator to exercise the authorities vested in the Ad-
ministrator under subsections (e) and (h) (other
than (h)(2)) of this section at any or all facilities
owned or operated by any department, agency, or in-
strumentality of the United States (including the ex-
ecutive, legislative, and judicial branches of govern-
ment), including the authority—
‘‘(A) to publish a timetable and deadlines
for completion of any remedial investigation
and feasibility study;
‘‘(B) to review and approve all documents
prepared in connection with any such investiga-
tion and study;
‘‘(C) to review and select remedies pursu-
ant to subsection (e)(4)(A); and
‘‘(D) to enter into agreements with depart-
ments, agencies, and instrumentalities of the
United States in accordance with subsection
(e)(2), and to enter into consent decrees with
other potentially responsible parties in accord-
ance with subsection (e)(6).
‘‘(2) TRANSFER
OF
AUTHORITIES.—The Ad-
ministrator shall enter into a contract or cooperative
agreement to transfer the authorities described in
paragraph (1) if the Administrator determines the
following:
‘‘(A) The State has the ability to exercise
such authorities in accordance with this Act, in-
cluding adequate legal authority, financial and
personnel resources, organization, and exper-
tise.
‘‘(B) The State demonstrates experience in
exercising similar authorities.
‘‘(3) EFFECT OF AUTHORIZATION UNDER SOLID
WASTE DISPOSAL ACT.—In the review by the Admin-
istrator of an application of a State for transfer of
authorities under this subsection, if the State is au-
thorized to implement a State hazardous waste pro-
gram pursuant to section 3006 of the Solid Waste
Disposal Act (42 U.S.C. 6926), the following provi-
sions apply:
‘‘(A) With respect to a State that is a sig-
natory to an interagency agreement under sub-
section (e)(2) that is in effect on the effective
date of the Superfund Reform Act of 1995, the
Administrator, in making the determinations
referred to in paragraph (2), shall accord sub-
stantial weight to the State’s hazardous waste
program authorization and the Administrator’s
findings in approving such authorization.
‘‘(B) With respect to a State whose au-
thorization under such section 3006 includes
authorization to implement the corrective action
provisions of the Solid Waste Disposal Act, the
Administrator shall approve the application and
provide for the orderly transfer of authorities as
expeditiously as possible, but in no case later
than 6 months after the date of receipt of the
application, unless the parties agree to another
deadline.
‘‘(4) EFFECT
OF
TRANSFER.—Any State to
which authorities are transferred under this sub-
section shall not be deemed to be an agent of the
President but shall exercise such authorities in its
own name, and the Administrator may transfer to a
State only those authorities of the Administrator
identified in this subsection.
‘‘(5) DEADLINES.—Except as provided in para-
graph (3)(B), the Administrator shall make a deter-
mination on an application from a State under this
subsection not later than 90 days after the date the
Administrator receives the application.
‘‘(6) WITHDRAWAL OF AUTHORITIES.—(A) The
Administrator may withdraw the authorities trans-
ferred under this subsection in whole or in part if
the Administrator determines—
‘‘(i) that the State, in whole or in part, is
exercising such authorities in a manner clearly
inconsistent with the requirements of this Act;
or
‘‘(ii) in the case of a State that was ap-
proved under paragraph (3)(B), that the State
is no longer authorized to implement the correc-
tive action provisions of the Solid Waste Dis-
posal Act.
‘‘(B) At least 90 days before withdrawing any
such transferred authorities from a State, the Ad-
ministrator shall provide to the State a written ex-
planation of the reasons for the proposed withdrawal
and afford an opportunity to the State to discuss the
withdrawal and to propose actions to correct any
deficiencies.
‘‘(7) ENFORCEMENT
AND
REMEDY
SELEC-
TION.—(A) An interagency agreement under this
section between a State (including States which are
parties to such agreements through the exercise of
the Administrator’s authorities pursuant to a coop-
erative agreement or contract under this subsection)
and any department, agency, or instrumentality of
the United States, shall be enforceable by the State
or the Federal department, agency, or instrumental-
ity in the United States district court for the district
in which the facility is located. The district court
shall have the jurisdiction to enforce compliance with
any provision, standard, regulation, condition, re-
quirement, order, or final determination which has
become effective under such agreement, and to im-
pose any appropriate civil penalty provided for any
violation of the agreement, not exceed $25,000 per
day.
‘‘(B) At Federal facilities where the Adminis-
trator’s authorities under subsection (e)(4) have
been transferred to the State pursuant to this sec-
tion, and the State does not concur in the remedy
selection proposed by the Federal agency, the parties
shall enter into dispute resolution as provided in the
interagency agreement, provided that the final level
for such disputes concerning remedy selection shall
be to the head of the Federal department, agency,
or instrumentality and the Governor of the State. If
no agreement is reached between the head of the
Federal department, agency, or instrumentality and
the Governor, the State may issue the final deter-
mination. In order to compel implementation of the
State’s selected remedy, the State must bring a civil
action in the appropriate Federal district court. The
district court shall have jurisdiction as provided in
subparagraph (A) to issue any relief that may be
necessary to implement the remedial action, to im-
pose appropriate civil penalties not to exceed
$25,000 per day from the date the selected remedy
becomes final, and to review any challenges to the
State’s final determination consistent with the
standards set forth in section 113(j) of this Act.
‘‘(8) LIMITATION.—Except for authorities that
are transferred by the Administrator to a State pur-
suant to this subsection, or that are transferred by
the Administrator to an officer or employee of the
Environmental Protection Agency, no authority vest-
ed in the Administrator under this section may be
transferred, by executive order of the President or
otherwise, to any other officer or employee of the
United States or to any other person. Except as nec-
essary to specifically implement the transfer of the
Administrator’s authorities to a State pursuant to
this subsection, nothing in this subsection shall be
construed as altering, modifying, or impairing in any
manner, or authorizing the unilateral modification
of, any terms of any agreement, permit, administra-
tive, or judicial order, decree, or interagency agree-
ment existing on the effective date of the Superfund
Reform Act of 1995. Any other modifications or re-
visions of an interagency agreement entered into
under this section shall require the consent of all
parties to such agreement, and absent such consent
the agreement shall remain changed. Nothing in this
subsection shall affect the exercise by a State of any
other authorities that may be applicable to facilities
in such State.’’.
TITLE III—VOLUNTARY
RESPONSE
SEC. 301. VOLUNTARY RESPONSE PROGRAM.
Title I is amended by adding the following new sec-
tion after section 127:
‘‘SEC. 128. VOLUNTARY RESPONSE PROGRAM.
‘‘(a) PURPOSES
AND OBJECTIVES.—The purposes
and objectives of this section are to—
‘‘(1) significantly increase the pace of response
activities at contaminated sites by promoting and
encouraging the creation, development, and expan-
sion of State voluntary response programs; and
‘‘(2) benefit the public health, welfare, and the
environment by returning contaminated sites to eco-
nomically productive or other beneficial uses.
‘‘(b) ESTABLISHMENT OF PROGRAM.—The Adminis-
trator shall establish a program to provide technical, fi-
nancial, and other assistance, including grants, to States
to establish and expand voluntary response programs.
‘‘(c) EPA ASSISTANCE TO STATES FOR STATE VOL-
UNTARY RESPONSE PROGRAMS.—The Administrator shall
assist States in the establishment and administration of
State voluntary response programs that—
‘‘(1) provide opportunities for technical assist-
ance for voluntary response actions;
‘‘(2) provide adequate opportunities for public
participation in selecting response actions, including
prior notice and opportunity for comment in appro-
priate circumstances;
‘‘(3) provide streamlined procedures to ensure
expeditious voluntary response actions;
‘‘(4) provide adequate oversight and enforce-
ment authorities to ensure that voluntary response
actions are protective of human health and the envi-
ronment, are conducted in accordance with an ap-
propriate response action plan and ensure comple-
tion of response actions if the person conducting the
response action fails or refuses to complete the nec-
essary response activities, including operation and
maintenance or long-term monitoring activities;
‘‘(5) provide mechanisms for the approval of a
response action plan; and
‘‘(6) provide for a certification or similar docu-
mentation from the State to the person conducting
the response action indicating that the response is
complete.
‘‘(d) EPA REVIEW OF STATE PROGRAMS.—At any
time after the enactment of this Act, a State may submit,
for review by the Administrator, documents the State
deems appropriate to describe a State voluntary response
program, together with a certification that the program
is consistent with the elements set forth in subsection (c).
‘‘(e) QUALIFICATION OF STATE PROGRAM.—
‘‘(1) APPROVAL OR DISAPPROVAL.—A State vol-
untary response program submitted under sub-
section (d) shall be a qualified program under this
Act beginning on the date 120 days after the sub-
mittal of the certification under subsection (d) un-
less the Administrator determines before that date
that the State’s submittal is not consistent with the
elements set forth in subsection (c). The Adminis-
trator shall seek public comment on the submittal of
a State voluntary response program under this sec-
tion and shall publish in the Federal Register the
reasons for the approval or disapproval of any such
program.
‘‘(2) WITHDRAWAL
OF
APPROVAL.—Whenever
the Administrator determines after public hearing
that a State is not administering and enforcing a
qualified program in accordance with subsection (c),
the Administrator shall notify the State in writing of
such determination. If appropriate corrective action
is not taken by the State within 120 days after re-
ceipt of the notice, the Administrator shall withdraw
approval of the program and publish a notice of such
withdrawal in the Federal Register, after which the
State program shall cease to be a qualified program
under this section. If the State subsequently under-
takes corrective measures, the Administrator shall
reinstate the program as a qualified program under
this section. The Administrator shall not withdraw
approval of any such program unless the Adminis-
trator provides to the State in writing and publishes
in the Federal Register the reasons for such with-
drawal.
‘‘(f) NPL LISTING.—No portion of a facility subject
to a response action plan approved under a qualified pro-
gram under this section shall be proposed for listing on
the National Priorities List so long as substantial and con-
tinual response activities are being undertaken pursuant
to such plan to complete the response action in a timely
manner as set forth in the response action plan. Nothing
in this section shall be construed to limit the Administra-
tor’s ability to list on the National Priorities List facilities
that have been proposed for listing, or to compel response
action under section 106 of the Act.
‘‘(g) CONDUCT OF RESPONSE.—The Administrator
shall, after consultation with the State, and notice and op-
portunity for public comment, promulgate regulations de-
scribing circumstances in which any State having a quali-
fied program, and also authorized to issue permits under
Federal environmental statutes, may waive such permit re-
quirements with respect to activities conducted pursuant
to an approved voluntary response plan if (1) such State
has the authority under its own statutes or regulations
to grant such waivers, (2) the State waiver authority is
used in no less stringent a manner than allowed under
Federal permit waiver authority, and (3) the response ac-
tion plan requires compliance with the relevant substantive
requirements of the statute concerned.
‘‘(h) EFFECT OF RESPONSE.—Performance of a vol-
untary response action pursuant to this section shall not
constitute an admission of liability under any Federal,
State, or local law or regulation or in any citizens suit
or other private action.
‘‘(i) COMPLIANCE WITH NCP.—Response actions
conducted pursuant to a qualified program shall be pre-
sumed to be consistent with the National Contingency
Plan for the purposes of private cost recovery claims under
this Act.
‘‘(j) ANNUAL REPORTING.—
‘‘(1) REPORT BY STATE.—States with qualified
programs under this section shall report to the Ad-
ministrator at the end of each calendar year on the
status of their programs. Each such report shall in-
clude a statement regarding whether the program
continues to be consistent with the elements set
forth in subsection (c).
‘‘(2) REPORT
BY
ADMINISTRATOR.—The Ad-
ministrator shall report, not later than one year
after the enactment of this section, and annually
thereafter, to the Congress on the status of State
voluntary response program. The report shall in-
clude an analysis of whether qualified State vol-
untary response action programs continue to be con-
sistent with the elements set forth in subsection (c).
‘‘(k) STATUTORY CONSTRUCTION.—(1) This section
is not intended to impose any requirement on a State vol-
untary response program existing on or after the date of
the enactment of the Superfund Reform Act of 1995.
‘‘(2) This section is not intended to affect the liability
of any person or to affect other response authorities af-
forded under any law or regulation relating to environ-
mental contamination, including this Act, the Solid Waste
Disposal Act, the Clean Water Act, the Toxic Substances
Control Act, and title XIV of the Public Health Service
Act (the Safe Drinking Water Act), except that the suc-
cessful completion of a response action at a facility pursu-
ant to a qualified program under this section shall be con-
sidered for purposes of section 107(a)(6)(C) as evidence
that a person acquiring ownership of the facility is a bona
fide prospective purchaser of the facility within the mean-
ing of section 101(39).
‘‘(3) Nothing in this section shall be construed to re-
quire any person to participate in a qualified voluntary
response program under this section or in any other vol-
untary response program in order to qualify as a bona
fide purchaser for purposes of section 107(a)(6)(C).’’.
TITLE IV—LIABILITY AND
ALLOCATION
SEC. 401. INFORMATION GATHERING AND ACCESS.
(a) ADDITIONAL INFORMATION.—Section 104(e)(2)
(42 U.S.C. 9604(e)(2)) is amended—
(1) by striking subparagraph (C) and inserting:
‘‘(C) The ability of a person to pay for or
to perform a response action.’’; and
(2) by inserting after subparagraph (C) the fol-
lowing:
‘‘(D) The identity of any persons engaged
in, responsible for, controlling, or having the
ability to control activities or operations at a
vessel or facility giving rise to liability under
this Act.
‘‘(E) The potential liability or responsibil-
ity of any person to perform or pay for a re-
sponse action.
‘‘(F) For a person conducting a response
action, an accounting of direct and indirect
costs the person has incurred in conducting
such response action.
‘‘(G) Information that is otherwise relevant
to enforce the provisions of this Act.’’.
(b) CERTIFICATIONS.—Section 104(e) (42 U.S.C.
9604(e)) is amended—
(1) by redesignating paragraphs (3), (4), (5),
(6), and (7) as paragraphs (4), (5), (6), (7), and
(8), respectively; and
(2) by inserting after paragraph (2) the follow-
ing:
‘‘(3) CERTIFICATION.—The President may re-
quire respondents to requests made pursuant to this
subsection to certify that—
‘‘(A) the responses are true, accurate, and
complete to the best of the respondent’s knowl-
edge;
‘‘(B) the responses 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 responses are based on a reason-
able inquiry of the current and former officers,
directors, employees, and agents of the person
to whom the request was directed;
‘‘(D) the responses accurately and com-
pletely reflect information obtained in the
course of conducting such search and inquiry;
‘‘(E) the respondent understands that
there is a continuing obligation to supplement
the response if any additional, new, or different
information relevant to the matters addressed
in the request or the response thereto becomes
known or available to the respondent; and
‘‘(F) the respondent understands that
there are significant penalties for knowingly
and willfully submitting false information, in-
cluding the possibility of fine and imprison-
ment.’’.
(c) ADMINISTRATIVE SUBPOENAS.—Section 104(e)
(42 U.S.C. 9604(e)) is further amended by inserting after
paragraph (8) (as redesignated by subsection (b)) the fol-
lowing new paragraph:
‘‘(9) ADMINISTRATIVE
SUBPOENAS.—When it
would assist in the collection of information nec-
essary or appropriate for the purposes of implement-
ing this Act, the Administrator may by subpoena re-
quire the attendance and testimony of witnesses and
the production of reports, papers, documents, an-
swers to questions, and other information listed in
paragraph (2) that the Administrator considers nec-
essary. Witnesses shall be paid the same fees and
mileage that are paid witnesses in the courts of the
United States. In the event of contumacy or failure
or refusal of any person to obey any such subpoena,
any district court of the United States in which
venue is proper shall have jurisdiction to order any
such person to comply with such subpoena. Any fail-
ure to obey such an order of the court is punishable
by the court as a contempt thereof.’’.
(d) CONFIDENTIALITY OF INFORMATION.—Subpara-
graph (A) of section 104(e)(8) (as redesignated by sub-
section (b)), is amended to read as follows:
‘‘(A) Any records, reports, documents, or infor-
mation obtained from any person under this section
(including records, reports, documents, or informa-
tion obtained by representatives of the President (or
the State as the case may be) and records, reports,
documents, or information obtained pursuant to a
contract, grant, or other agreement to perform work
pursuant to this section) shall be available to the
public not later than 45 days after the records, re-
ports, or information is obtained, except as follows:
‘‘(i) Upon a showing satisfactory to the
President (or the State, as the case may be) by
any person that records, reports, documents, or
information, or any particular part thereof
(other than health or safety effects data), to
which the President (or the State, as the case
may be) or any officer, employee, or representa-
tive has access under this section if made public
would divulge information entitled to protection
under section 1905 of title 18, United States
Code, such information or particular portion
thereof shall be considered confidential in ac-
cordance with the purposes of that section, ex-
cept as otherwise provided in this clause. Any
such record, report, document, or information
may be disclosed to other officers, employees, or
authorized representatives of the United States
carrying out this Act, when relevant in any pro-
ceeding under this Act, including any allocator
appointed pursuant to section 130. If such
records, reports, documents, or information are
obtained or submitted to the United States (or
the State, as the case may be) pursuant to a
contract, grant, or other agreement to perform
work pursuant to this section, such record, re-
port, document, or information may be dis-
closed to persons from whom the President
seeks to recover costs pursuant to this Act.
‘‘(ii) This section does not require that in-
formation which is exempt from disclosure pur-
suant to section 552(a) of title 5, United States
Code, by reason of subsection (b) of such sec-
tion, be available to the public. The disclosure
of any such information pursuant to this sec-
tion shall not authorize disclosure to other par-
ties or be deemed to waive any confidentiality
privilege available under any Federal or State
law.’’.
(e) CONFIDENTIALITY REQUIREMENTS
FOR CON-
TRACTORS.—Paragraph (8) of section 104(e) (as redesig-
nated by subsection (b)) is amended by adding at the end
the following new subparagraph:
‘‘(G)(i) No person described in clause (ii) may
disclose any record, report, document, or other infor-
mation referred to in subparagraph (A)(i) without
the permission of the President (or the State, as the
case may be).
‘‘(ii) A person described in this clause is any
person—
‘‘(I) who is not an employee of the United
States Government; and
‘‘(II) who, by virtue of the person’s duties
under a contract or cooperative agreement with
the United States under this section to perform
work for the United States Government or im-
plement the requirements of this Act, has re-
ceived information obtained under this section
(or any record, report, or document containing
such information) which, if requested from the
United States Government pursuant to section
552 of title 5, United States Code, would be ex-
empt from disclosure by reason of subsection
(b) of such section.’’.
(f) AVAILABILITY OF INFORMATION TO CONGRESS.—
Subsection 104(e) is further amended by adding after
paragraph (9) the following new paragraph:
‘‘(10) AVAILABILITY OF INFORMATION TO CON-
GRESS.—Nothing in this subsection shall be con-
strued to authorize any person, including any allo-
cator appointed pursuant to section 130, 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.’’.
SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.
(a) ADDITIONAL AUTHORITY TO ISSUE ADMINISTRA-
TIVE ORDERS.—Section 106(a) (42 U.S.C. 9606(a)) is
amended by adding at the end the following: ‘‘The Presi-
dent may amend such administrative orders and issue ad-
ditional orders relating to the facility, as appropriate,
without a subsequent finding of an imminent and substan-
tial endangerment, to complete all response actions nec-
essary to respond to an actual or threatened release or
to require additional response actions that are necessary
or appropriate to respond to the actual or threatened re-
lease that was the subject of the original administrative
order.’’.
(b) REQUIREMENT TO PROVIDE PRPS EVIDENCE OF
LIABILITY.—Section 106(a) (42 U.S.C. 9606(a)) is fur-
ther amended by adding at the end the following: ‘‘In any
case in which the President issues an order to a person
under this subsection, the President shall provide informa-
tion concerning the evidence that indicates that each ele-
ment of liability contained in section 107(a) is present.’’.
(c) SUFFICIENT
CAUSE.—Section 106(b)(1) (42
U.S.C. 9606(b)(1)) is amended—
(1) by inserting ‘‘(A)’’ after ‘‘(b)(1)’’;
(2) by striking ‘‘to enforce such order’’;
(3) by inserting before the period ‘‘, or be re-
quired to comply with such order, or both, even if
another person has complied, or is complying, with
the terms of the same order or another order per-
taining to the same facility and release or threatened
release’’; and
(4) by inserting at the end the following:
‘‘(B) For purposes of this subsection, a ‘sufficient
cause’ requires—
‘‘(i) an objectively reasonable belief by the per-
son to whom the order is issued that the person is
not liable for any response costs under section 107;
or
‘‘(ii) that the action to be performed pursuant
to the order is inconsistent with the national contin-
gency plan.
‘‘(C) The existence or results of an allocation process
pursuant to section 130 shall not affect or constitute a
basis for a determination of ‘sufficient cause’ under this
paragraph or under section 107(c)(3).’’.
(d) REIMBURSEMENT.—Subsection (b) of section 106
(42 U.S.C. 9606(b)) is further amended in the first sen-
tence of paragraph (2)(A) by striking ‘‘completion of’’ and
inserting ‘‘the President determines that such person has
completed’’.
SEC. 403. LIMITATIONS TO LIABILITY FOR RESPONSE
COSTS.
(a) LIMITATIONS ON LIABILITY.—Section 107(a) (42
U.S.C. 9607(a)) is amended as follows:
(1) In paragraph (1), by striking ‘‘and’’ and in-
serting ‘‘or’’.
(2) In paragraph (3), by striking ‘‘person,’’ and
inserting ‘‘person or’’.
(3) In paragraph (4)(A), by inserting ‘‘, includ-
ing the costs of overseeing response actions con-
ducted by potentially responsible parties,’’ before
‘‘incurred by the United States’’.
(4) In paragraph (4)(B)—
(A) by striking ‘‘other’’ both places it ap-
pears; and
(B) by inserting ‘‘, other than the United
States, a State, or an Indian tribe,’’ before the
phrase ‘‘consistent with the national contin-
gency plan’’.
(5) In paragraph (4), by striking ‘‘by such per-
son,’’ and all that follows through ‘‘shall be liable
for—’’ and inserting in lieu thereof the following:
‘‘by such person—
from which there is a release, or a threatened release, that
causes the incurrence of response costs, of a hazardous
substance, shall be liable for—’’.
(6) By designating the text beginning with
‘‘The amounts recoverable’’ and ending with ‘‘this
subsection commences.’’ as paragraph (5) and align-
ing the margin of such text with paragraph (4).
(7) By adding the following new paragraphs
after paragraph (5):
‘‘(6) Notwithstanding paragraphs (1) through
(4) of this subsection, a person who does not impede
rials containing hazardous substances or pollut-
ants or contaminants, or such greater or lesser
amount as the Administrator may determine by
regulation, except where—
‘‘(i) the Administrator has determined
that such material contributed or could
contribute significantly to the costs of re-
sponse at the facility, or
‘‘(ii) the person has failed to respond
fully and completely to information re-
quests or administrative subpoenas by the
United States.
‘‘(C) To the extent liability at such facility
is based solely on paragraph (1) of this sub-
section for a release or threat of release from
the facility, and the person is a bona fide pro-
spective purchaser of the facility. Not later than
18 months after the date of the enactment of
the Superfund Reform Act of 1995, the Admin-
istrator shall issue guidelines explaining criteria
by which a person may qualify as a bona fide
prospective purchaser. Such guidelines shall be
made readily available to the public.
‘‘(D) To the extent liability at such facility
is based solely on the person’s status as owner
under paragraph (1) for a release or threat of
release from the facility, and the person ac-
quired the facility by inheritance or bequest if
the person—
‘‘(i) acquired the real property on
which the facility concerned is located after
disposal or placement of the hazardous
substance took place;
‘‘(ii) did not cause or contribute to the
release or threat of release; and
‘‘(iii) exercised due care with respect
to the hazardous substance concerned, in-
cluding precautions against foreseeable
acts of third parties, taking into consider-
ation the characteristics of such hazardous
substance, in light of all relevant facts and
circumstances.
‘‘(E) To the extent the liability of a Fed-
eral or State governmental entity or municipal-
ity at such facility is based solely on its—
‘‘(i) ownership of a road, street, or
other right of way or public transportation
route (other than railroad rights of way
and railroad property) over which hazard-
ous substances are transported; or
‘‘(ii) granting of a license or permit to
conduct business.
‘‘(F) To the extent the liability of a de-
partment, agency, or instrumentality of the
United States at such facility is based on ac-
tions of such department, agency, or instrumen-
tality taken in response to a natural disaster
pursuant to the Act of August 18, 1941 (33
U.S.C. 701n) or The Robert T. Stafford Disas-
ter Relief and Emergency Act (42 U.S.C. 5121
and following).
‘‘(7) Notwithstanding paragraphs (1) through
(4), a person shall not be liable for more than 10
percent of total response costs at a facility, in aggre-
gate, to the extent the person is liable solely under
paragraph (3) or (4) of this subsection, and the ar-
rangement for disposal, treatment, or transport for
disposal or treatment, or the acceptance for trans-
port for disposal or treatment, involved only munici-
pal solid waste or sewage sludge. In any case in
which more than one person at a facility comes with-
in the coverage of this paragraph, the 10 percent
limitation on liability shall apply to the aggregate li-
ability of all such persons. Such limitation on liabil-
ity shall apply only if either the acts or omissions
giving rise to liability occurred before the date occur-
ring 36 months after enactment of this paragraph,
or the person asserting the limitation institutes or
participates in a qualified household hazardous
waste collection program within the meaning of sec-
tion 101(43).
‘‘(8)(A) 
Notwithstanding 
paragraphs 
(1)
through (4) of this subsection, the liability of a per-
son who does not impede the performance of re-
sponse actions or natural resource restoration with
respect to a release or threatened release from a ves-
sel or facility shall be limited to the lesser of the fair
market value of the vessel or facility or the actual
proceeds of the sale of the vessel or facility received
by the person, to the extent such liability is based
solely on the person’s status under paragraph (1) as
owner of the vessel or facility if the person—
‘‘(i) holding title, either outright or in
trust, to the vessel or facility is an organization
described in section 501(c)(3) of the Internal
Revenue Code of 1986 and exempt from tax
under section 501(a) of such Code and holds
such title as a result of a charitable donation
that qualifies under sections 170, 2055, or
2522 of such Code;
‘‘(ii) exercised due care with respect to the
hazardous substance concerned, including pre-
cautions against foreseeable acts of third par-
ties, taking into consideration the characteris-
tics of such hazardous substance, in light of all
relevant facts and circumstances;
‘‘(iii) did not cause or contribute to the re-
lease or threat of release; and
‘‘(iv) acquired the real property on which
the facility concerned is located, or acquired the
vessel, after disposal or placement of the haz-
ardous substance took place.
‘‘(B) At any facility to which the provisions of
this paragraph apply, the owner or operator of the
vessel or facility within the meaning of paragraph
(1) shall include any person who owned or operated
the facility immediately prior to the person described
in subparagraph (A).
‘‘(9) A person who owns or operates real prop-
erty that is contiguous to or otherwise situated with
respect to real property on which there has been a
release of a hazardous substance and that is or may
be contaminated by the release shall not be consid-
ered an owner or operator of a facility under para-
graph (1)(A) solely by reason of such contamination
if such person establishes by a preponderance of the
evidence that—
‘‘(A) such person exercised due care with
respect to the hazardous substance, taking into
consideration the characteristics of such haz-
ardous substance, in light of all relevant facts
and circumstances;
‘‘(B) such person took precautions against
foreseeable acts or omissions that resulted in
the release and the consequences that could
foreseeably result from such acts or omissions;
‘‘(C) such person did not cause or contrib-
ute to the release; and
‘‘(D) such person provides full cooperation,
assistance, and facility access to persons au-
thorized to conduct response actions at the fa-
cility, including the cooperation and access nec-
essary for the installation, integrity, operation,
and maintenance of any complete or partial re-
sponse action at the facility.
The President may issue assurances of no enforce-
ment action under this Act to such person and may
grant such person protection against cost recovery
and 
contribution 
actions 
pursuant 
to 
section
113(f).’’.
(b) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—Section 107 is amended by inserting after sub-
section (m) the following new subsection:
‘‘(n) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—(1) In any case in which there are unrecovered
response costs at a facility for which an owner of the facil-
ity is not liable by reason of subsection (a)(6)(C), and the
conditions described in paragraph (2) are met, the United
States shall have a lien upon such facility for such unre-
covered costs. Such lien—
‘‘(A) shall not exceed the increase in fair mar-
ket value of the property attributable to the response
action at the time of a subsequent sale or other dis-
position of property;
‘‘(B) shall arise at the time costs are first in-
curred by the United States with respect to a re-
sponse action at the facility;
‘‘(C) shall be subject to the requirements for
notice and validity established in paragraph (3) of
subsection (l); and
‘‘(D) shall continue until the earlier of satisfac-
tion of the lien or recovery of all response costs in-
curred at the facility.
‘‘(2) The conditions referred to in paragraph (1) are
the following:
‘‘(A) A response action for which there are un-
recovered costs is carried out at the facility.
‘‘(B) Such response action increases the fair
market value of the facility above the fair market
value of the facility that existed within six months
before the response action was taken.’’.
‘‘(3) No lien under this section shall arise (A) with
respect to property for which the property owner preceding
the first bona fide prospective purchaser is not a liable
party or has resolved its liability under this Act, or (B)
where an audit or inquiry required under section
101(39)(B) by an environmental professional certified
under section 612 of the Superfund Reform Act of 1995
gives the bona fide prospective purchaser no knowledge or
reason to know of the release of hazardous substances.’’.
SEC. 404. LIABILITY.
(a) LIABILITY.—Section 107(a) (42 U.S.C. 9607(a))
(as amended by section 403) is further amended by adding
the following new paragraph at the end thereof:
‘‘(10) The Administrator shall calculate the En-
vironmental Protection Agency response action over-
sight costs for which potentially responsible parties
are liable under this section (pursuant to paragraph
(4)(A)) on a national basis as a percentage of total
response costs incurred by potentially responsible
parties (in this paragraph referred to as the ‘na-
tional oversight rate’). The calculation shall be based
on data comparing oversight expenditures of the En-
vironmental Protection Agency to estimated or ac-
tual response costs incurred by potentially respon-
sible parties. The Administrator shall periodically re-
view and update the national oversight rate. In no
case shall the rate exceed 10 percent of total re-
sponse costs incurred by potentially responsible par-
ties. The national oversight rate shall be applied to
all settlements under section 130.’’.
(b) POLLUTANT AND CONTAMINANT LIABILITY.—(1)
Section 107(a) (42 U.S.C. 6907A(a)) (as amended by sub-
section (a)) is further amended by adding at the end the
following new paragraph:
‘‘(11) When the President responds under the
authority of section 104(a)(1)(B) at facilities on the
National Priorities List, liability for response costs
under this section for pollutants and contaminants
shall be identical to that for hazardous substances
only if such pollutants and contaminants (A) con-
stitute an imminent and substantial danger to
human health, and (B) are not associated with the
production or extraction of any hydrocarbon, includ-
ing natural gas, petroleum, crude oil, or any fraction
thereof.’’.
(2) Such section is further amended by inserting ‘‘or
pollutant or contaminant’’ after ‘‘hazardous substance’’
and ‘‘hazardous substances’’ each place they appear in
subsection (b), paragaphs (1) and (2) of subsection (c),
paragraphs (1) and (2) of subsection (d), subsection (i),
subsection (j), and paragraph (1)(B) of subsection (k).
(c) AMOUNT OF LIABILITY.—Section 107(c)(3) (42
U.S.C. 9607(c)(3)) is amended in the first sentence—
(1) by inserting ‘‘, in addition to liability for
any response costs incurred by the United States as
a result of such failure to take proper action,’’ after
‘‘person’’ the second time it appears; and
(2) by striking ‘‘at least equal to,’’ and all that
follows through the end of the sentence and insert-
ing ‘‘up to three times the amount of such response
costs.’’.
(d) CLARIFICATION OF COMMON CARRIER LIABIL-
ITY.—Section 107(b)(3) is amended by striking out ‘‘from
a published tariff and acceptance for’’ and inserting ‘‘ex-
clusively from a contract for’’.
(e) SMALL
BUSINESS
CONSTRUCTION
CONTRAC-
TORS.—Section 107 is amended by adding at the end the
following:
‘‘(o) SMALL BUSINESS CONSTRUCTION CONTRAC-
TORS.—There shall be no liability under subsection (a) of
this section based solely on a person’s construction activi-
ties at a facility if such person can demonstrate by a pre-
ponderance of evidence that—
‘‘(1) such construction activities were specifi-
cally directed by and carried out in accordance with
a contract with an owner or operator of the facility;
and
‘‘(2) the person is a small business construction
contractor as defined by section 101(49).’’.
SEC. 405. CIVIL PROCEEDINGS.
(a) PETITIONS.—Section 113(a) (42 U.S.C. 9613(a))
is amended as follows:
(1) By striking ‘‘upon application by any inter-
ested person’’ and inserting ‘‘by any interested per-
son through the filing of a petition for review’’.
(2) By striking ‘‘application shall be made’’,
and inserting ‘‘petition shall be filed’’.
(b) PERIOD IN WHICH ACTION MAY BE BROUGHT.—
Section 113(g) (42 U.S.C. 9613(g)) is amended by strik-
ing paragraphs (2) and (3) and inserting in lieu thereof
the following:
‘‘(2) ACTIONS FOR RECOVERY OF COSTS.—(A)
Except as provided in subparagraph (C), an initial
action for recovery of costs referred to in section
107 must be commenced—
‘‘(i) for a removal action, within 3 years
after completion of all removal action taken
with respect to the facility, including off-site
disposal of any removed materials, except that
if physical on-site construction of the remedial
action is initiated within 3 years after the com-
pletion of all removal action taken with respect
to the facility, costs incurred for removal action
may be recovered in a cost recovery action
brought under clause (ii); and
‘‘(ii) for a remedial action, within 6 years
after initiation of physical on-site construction
of the remedial action.
‘‘(B) In any such action described in this para-
graph, the court shall enter a declaratory judgment
on liability for response costs or damages that will
be binding in such action or in any subsequent ac-
tion or actions to recover further response costs or
damages. A subsequent action or actions under sec-
tion 107 for further response costs at the vessel or
facility may be maintained at any time during the
response action, but must be commenced no later
than 3 years after the date of completion of all re-
sponse action. Except as otherwise provided in this
paragraph, an action may be commenced under sec-
tion 107 for recovery of costs at any time after such
costs have been incurred.
‘‘(C) An action by any potentially responsible
party against another potentially responsible party
for recovery of any response costs or damages must
be commenced within the later of—
‘‘(i) the time limitations set forth in sub-
paragraph (A); or
‘‘(ii) where recovery is sought for costs or
damages paid pursuant to a judgment or settle-
ment, 3 years after—
‘‘(I) the date of judgment in any ac-
tion under this Act for recovery of such
costs or damages, or
‘‘(II) the date of any administrative
order or judicial settlement for recovery of
the costs or damages paid or incurred pur-
suant to such a settlement.
‘‘(3) CLAIMS
BY
THE
UNITED
STATES
OR
STATES.—Claims by the United States under section
106 and claims by the United States or a State
under section 107(a) shall not be deemed compul-
sory counterclaims in an action against the United
States or a State seeking response costs, contribu-
tion, damages, or any other claim by any person
under this Act.’’.
(c) JUDICIAL REVIEW.—Section 113(j)(1) (42 U.S.C.
9613(j)(1)) is amended by striking ‘‘or ordered by the
President’’ and inserting ‘‘or selected by the President
pursuant to this Act, or ordered or sought by the Presi-
dent,’’.
SEC. 406. LIMITATIONS ON CONTRIBUTION ACTIONS.
Section 113(f) (42 U.S.C. 9613(f)) is amended as
follows:
(1) By amending paragraph (1) as follows:
(A) By striking ‘‘Any person’’ in the first
sentence and inserting ‘‘Except as provided in
paragraph (4), any person who is liable or po-
tentially liable under section 107(a)’’.
(B) By striking ‘‘, during or following any
civil action under section 106 or under section
107(a).’’ and inserting ‘‘in a claim asserted
under section 107(a).’’.
(C) In the second sentence, by striking
‘‘this section’’ and inserting ‘‘section 107(a),
this section,’’.
(D) By striking the sentence beginning
with ‘‘Nothing in this subsection’’.
(2) By amending paragraph (2) to read as
follows:
‘‘(2) SETTLEMENTS.—A person who has re-
solved its liability to the United States in an admin-
istrative or judicially approved settlement shall not
be liable for contribution or any other claims by any
person other than a State acting under section
107(a)(4)(A) (and not as a potentially responsible
party) regarding response actions, response costs, or
damages addressed in the settlement. A person who
has resolved its liability to a State or an Indian tribe
in an administrative or judicially approved settle-
ment shall not be liable for contribution or any other
claims by persons other than the United States Gov-
ernment acting under section 107(a)(4)(A) (and not
as a potentially responsible party) regarding re-
sponse costs or damages addressed in the settlement
for which the State or Indian tribe has a claim
under this title. Such settlement does not discharge
any other potentially responsible persons unless its
terms so provide, but it reduces the potential liabil-
ity of such other persons by the amount of the set-
tlement. The protection afforded by this subsection
shall include protection against claims, under Fed-
eral or State law, that may be asserted against the
settling party for recovery of response costs or dam-
ages incurred or paid by another person, if such
costs or damages are addressed in the settlement,
but shall not include protection against claims based
on contractual indemnification or other express con-
tractual agreements to pay such costs or damages.’’.
(3) By adding at the end the following new
paragraph:
‘‘(4) LIMITATIONS
ON
CONTRIBUTION
AC-
TIONS.—(A) There shall be no right of contribution
under this subsection in any of the following cir-
cumstances:
‘‘(i) The person asserting the right of con-
tribution has waived the right in a settlement
pursuant to this Act.
‘‘(ii) The person from whom contribution
is sought is not liable under this Act.
‘‘(iii) The person from whom contribution
is sought has entered into a settlement with the
United States pursuant to section 122(g), with
respect to matters addressed in that settlement.
‘‘(B) Any person who commences an action for
contribution shall be liable to the person against
whom the claim of contribution is brought for all
reasonable costs of defending against the claim, in-
cluding all reasonable attorneys’ and expert witness
fees, if—
‘‘(i) the action is barred by subparagraph
(A);
‘‘(ii) the action is brought against a person
who is protected from such suits pursuant to
section 113(f)(2) by reason of a settlement with
the United States; or
‘‘(iii) the action is brought during the mor-
atorium pursuant to section 130.’’.
SEC. 407. SCOPE OF RULEMAKING AUTHORITY.
(a) IN GENERAL.—Section 115 (42 U.S.C. 9615) is
amended to read as follows:
‘‘SEC. 115. PRESIDENTIAL DELEGATION AND ASSIGNMENT
OF DUTIES OR POWERS AND PROMULGATION
OF REGULATIONS.
‘‘The President (or the Administrator where applica-
ble) is authorized to promulgate such regulations as the
President (or the Administrator where applicable) deems
necessary to carry out the provisions of this Act, and to
delegate and assign any duties or powers imposed upon
or assigned to him by this Act, including the authority
to promulgate regulations. The preceding sentence in-
cludes authority to clarify or interpret all terms and to
implement any provision of this Act.’’.
(b) LENDER LIABILITY RULE.—(1) Effective on the
date of enactment of this section, the final rule issued by
the Administrator of the Environmental Protection Agen-
cy on April 29, 1992 (57 Fed. Reg. 18344), shall be
deemed to have been validly issued pursuant to the author-
ity of the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980, and to have been
effective according to the final rule’s terms. No additional
administrative or judicial proceedings shall be necessary
with respect to such final rule.
(2) Notwithstanding section 113(a) of the Com-
prehensive Environmental Response, Compensation and
Liability Act of 1980, no court shall have jurisdiction to
review the final rule issued by the Administrator of the
Environmental Protection Agency on April 29, 1992 (57
Fed. Reg. 18344).
(3) Nothing in this subsection shall be construed to
limit the authority of the President or his delegate to
amend the final rule issued by the Administrator of the
Environmental Protection Agency on April 29, 1992 (57
Fed. Reg. 18344), in accordance with applicable provi-
sions of law.
SEC. 408. RESPONSE ACTION CONTRACTORS.
(a) CLARIFICATION OF RESPONSE ACTION CONTRAC-
TOR LIABILITY.—Section 119(a) (42 U.S.C. 9619(a)) is
100
amended by inserting after paragraph (4) the following
new paragraph:
‘‘(5) LIABILITY.—Any liability of a person
under this Act as a response action contractor aris-
ing solely from the performance by such person of
a response action contract at any facility shall be de-
termined solely in accordance with this section with
respect to such facility.’’.
(b) IMPLEMENTATION OF ALTERNATIVE OR INNOVA-
TIVE
TECHNOLOGIES.—Section 
119(a) 
(42 
U.S.C.
9619(a)) is further amended by adding at the end the fol-
lowing:
‘‘(6) IMPLEMENTATION
OF
ALTERNATIVE
OR
INNOVATIVE
TECHNOLOGIES.—No response action
contractor shall be liable under this Act solely as a
result of such contractor’s testing or implementation
of alternative or innovative treatment technologies
(as defined in section 311(b)) or alternative or inno-
vative containment technologies with respect to a re-
sponse action if use of the technology in connection
with the response action has been approved by the
authorized Federal regulatory agency or State regu-
latory agency acting under a contract or cooperative
agreement with the Administrator pursuant to sec-
tion 127. This paragraph shall not apply in the case
101
of negligence, gross negligence, or intentional mis-
conduct by such contractor in implementing the ap-
proved technology, including any noncompliance with
the approved process for implementing the tech-
nology.’’.
(c) 
INDEMNIFICATION
CLARIFICATION.—Section
119(c)(1) (42 U.S.C. 9619(c)(1)) is amended by inserting
‘‘under Federal, State, or common law’’ after ‘‘any liabil-
ity’’.
(d) INDEMNIFICATION
FOR
THREATENED
RE-
LEASES.—Section 
119(c)(5)(A) 
(42 
U.S.C.
9619(c)(5)(A)) is amended by inserting ‘‘or threatened re-
lease’’ after ‘‘release’’ each place it appears.
(e) CONSIDERATIONS.—Section 119(c) (42 U.S.C.
9619(c)) is amended by redesignating paragraphs (5), (6),
(7), and (8) as paragraphs (6), (7), (8), and (9), respec-
tively, and by inserting after paragraph (4) the following
new paragraph:
‘‘(5) 
CONSIDERATIONS.—In 
exercising 
the
President’s discretion under this subsection whether
to provide an indemnification agreement, the Presi-
dent should consider the adequacy of competition in
response to solicitations, the availability of adequate
insurance at a fair and reasonable price (including
consideration of premium, policy terms, deductibles,
102
policy coverage, limits, and renewal terms), applica-
ble statutes of limitation that may apply to actions
against response action contractors, and any other
factors the President considers relevant.’’.
(f) EXTENSION.—Section 119 (42 U.S.C. 9619) is
amended—
(1) in subsection (e)(2)(C) by striking ‘‘1996’’
and inserting ‘‘2000’’; and
(2) in subsection (g)(5) by striking ‘‘1995’’ and
inserting ‘‘1999’’.
SEC. 409. ENHANCEMENT OF SETTLEMENT AUTHORITIES.
Section 122 (42 U.S.C. 9622) is amended as follows:
(1) In subsection (b) by striking paragraph (3)
and redesignating paragraph (4) as paragraph (3).
(2) By adding the following new subparagraph
at the end of subsection (d)(1):
‘‘(D) COMPLIANCE.—Any consent decree
shall require the parties to attempt expedi-
tiously to resolve disagreements concerning im-
plementation of the remedial action informally
with the appropriate Federal and State agen-
cies. Where the parties agree, the consent de-
cree may provide for administrative enforce-
ment. Each consent decree shall also contain
stipulated penalties for violations of the decree
103
in an amount not to exceed $25,000 per day,
which may be enforced by either the President
or the State. Such stipulated penalties shall not
be construed to impair or affect the authority
of the court to order compliance with the spe-
cific terms of any such decree.’’.
(3) By amending subsection (e)—
(A) By inserting after paragraph (1)(C)
the following:
‘‘(D) For each potentially responsible
party, the evidence that indicates that each ele-
ment of liability contained in section 107(a) is
present.’’.
(B) By striking paragraph (3).
(C) By redesignating paragraphs (4) and
(5) as paragraphs (3) and (4), respectively.
(4) By adding at the end of subsection (g)(1)
the following: ‘‘The President may waive any condi-
tion or requirement of subparagraph (B), for a per-
son liable as an owner under section 107(a)(1), if
not more than a de minimus amount of any hazard-
ous substance was released as a result of the genera-
tion, transportation, storage, treatment, or disposal
of hazardous substances at the facility by the owner
and persons affiliated with the owner after the
104
owner took title, or if the owner and persons affili-
ated with the owner caused or contributed to the re-
lease or threat of release of not more than a de
minimus amount of any hazardous substance at the
facility through any action or omission after the
owner took title.’’.
(5)(A) By transferring paragraph (6) of sub-
section (e) to the end of the section and redesignat-
ing such paragraph as subsection (o).
(B) In subsection (o) (as so transferred and re-
designated), by striking ‘‘remedial action’’ in both
places it appears and inserting ‘‘response action’’,
and by inserting ‘‘or the State under applicable law’’
before the period at the end.
(C) By adding the following new subsections at
the end thereof:
‘‘(p) RETENTION OF FUNDS.—(1) If, as part of any
settlement agreement under this Act, a potentially respon-
sible party will be paying amounts to the President for
carrying out any response action, the President may retain
such amounts in interest bearing accounts, and use such
amounts, together with accrued interest, to conduct or en-
able other persons to conduct such response action.
‘‘(2) If, as part of any settlement agreement for car-
rying out a response action under this Act, a potentially
105
responsible party will be paying amounts to the President,
the Administrator is authorized to accept ownership of a
financial instrument running irrevocably to the benefit of
the United States to conduct, or enable other persons to
conduct, such response actions. For the purposes of this
paragraph, the term ‘financial instrument’ means an an-
nuity contract, funding agreement, or similar instrument
acceptable to the Secretary of the Treasury, that is pur-
chased by one or more potentially responsible parties, and
has a defined schedule of periodic payments which coin-
cides with the obligations set forth in the settlement agree-
ment. Periodic payments under such a financial instru-
ment will be made to the owner, or as the owner directs,
for response costs at the facility which is the subject of
the settlement agreement.
‘‘(q) CHALLENGE TO COST RECOVERY COMPONENT
OF SETTLEMENT.—Notwithstanding the limitations on re-
view in section 113(h), and except as provided in sub-
section (g) of this section, a person whose potential claim
for response costs or contribution is limited as a result
of contribution protection afforded by an administrative
settlement under this section may challenge the cost recov-
ery component of such settlement. Such a challenge may
be made only by filing a complaint against the Adminis-
trator in the United States District Court within 60 days
106
after such settlement becomes final. Venue shall lie in the
district in which the principal office of the appropriate re-
gion of the Environmental Protection Agency is located.
Any review of an administrative settlement shall be limited
to the administrative record, and the settlement shall be
upheld unless the objecting party can demonstrate on that
record that the decision of the President to enter into the
administrative settlement was arbitrary, capricious, or
otherwise not in accordance with law.
‘‘(r) UNSUCCESSFUL CHALLENGERS LIABLE FOR
ATTORNEY’S FEES.—Any party who challenges any settle-
ment entered into between the President and any poten-
tially responsible party under this Act, and who is not suc-
cessful in overturning or modifying the settlement, shall
be liable to the United States and any settling party for
all reasonable attorneys’ fees and costs incurred in defend-
ing the settlement.’’.
SEC. 410. PROFESSIONAL SERVICES.
Section 122 is amended by adding after subsection
(r) the following new subsection:
‘‘(s) PROFESSIONAL SERVICES.—The Administrator
has the authority to use the procedures set forth in section
109(e) to obtain the services of neutral professionals to
assist in the conduct of settlement negotiations under this
107
section, whether or not the neutral professional actually
participates in such negotiations.’’.
SEC. 411. FINAL COVENANTS.
Section 122(f) is amended as follows:
(1) By amending paragraph (1) to read as
follows:
‘‘(1) FINAL COVENANTS.—The President shall
offer potentially responsible parties who enter into
settlement agreements that are in the public interest
a final covenant not to sue concerning any liability
to the United States under this Act, including a cov-
enant with respect to future liability, for response
actions or response costs addressed in the settle-
ment, if all of the following conditions are met:
‘‘(A) The settling party agrees to perform,
or there are other adequate assurances of the
performance of, a final remedial action author-
ized by the Administrator for the release or
threat of release that is the subject of the set-
tlement.
‘‘(B) The remedial action does not provide
that any hazardous substances will remain at
the facility at concentrations above the protec-
tive concentration levels established pursuant to
108
section 121(d) after the final remedial action is
completed.
‘‘(C) The settlement agreement has been
reached prior to the commencement of litigation
against the settling party under section 106 or
107 of this Act with respect to this facility.
‘‘(D) The settling party waives all con-
tribution rights against other potentially re-
sponsible parties at the facility.
‘‘(E) The settling party pays a premium
that compensates for the risks of remedy fail-
ure; future liability resulting from unknown
conditions; unanticipated increases in the cost
of any uncompleted response action, unless the
settling party is performing the response action;
and, where applicable, the United States litiga-
tion risk as provided in section 130 with respect
to persons who have not resolved their liability
to the United States under this Act, unless all
parties have settled their liability to the United
States, or the settlement covers 100 percent of
the United States response costs. The President
shall have sole discretion to determine the ap-
propriate amount of any such premium, and
such determinations are committed to the
109
President’s discretion. The President has dis-
cretion to waive or reduce the premium pay-
ment for persons who demonstrate an inability
to pay such a premium.
‘‘(F) The settlement is otherwise accept-
able to the United States.’’.
(2) Paragraph (3) is amended to read as
follows:
‘‘(3) DISCRETIONARY COVENANTS.—For settle-
ments under this Act for which covenants under sec-
tion 122(f)(1) are not available, the President may,
in his discretion, provide any person with a covenant
not to sue concerning any liability to the United
States under this Act, if the covenant not to sue is
in the public interest. Such covenants shall be sub-
ject to the requirements of section 122(f)(5). The
President may include any conditions in such cov-
enant not to sue, including the additional condition
referred to in paragraph (5). In determining whether
such conditions or covenants are in the public inter-
est, the President shall consider the nature and
scope of the commitment by the settling party under
the settlement, the effectiveness and reliability of the
response action, the nature of the risks remaining at
the facility, the strength of evidence, the likelihood
110
of cost recovery, the reliability of any response ac-
tion or actions to restore, replace, or acquire the
equivalent of injured natural resources, the extent to
which performance standards are included in the
order or decree, the extent to which the technology
used in the response action is demonstrated to be ef-
fective, and any other factors relevant to the protec-
tion of human health and the environment.’’.
(3) Such subsection (f) is amended by striking
paragraph (4) and redesignating paragraphs (5) and
(6) as paragraphs (4) and (5), respectively.
(4) Paragraph (2) is amended by striking ‘‘re-
medial’’ each place it appears and inserting ‘‘re-
sponse’’.
(5) Subparagraph (A) of paragraph (5) (as so
redesignated) is amended—
(A) by striking ‘‘remedial’’ and inserting
‘‘response’’;
(B) by striking ‘‘paragraph (2)’’ in the
first sentence and inserting ‘‘paragraph (1) or
(2)’’;
(C) by striking ‘‘de minimis settlements’’
and inserting ‘‘de minimis and other expedited
settlements pursuant to subsection (g) of this
section’’; and
111
(D) by striking ‘‘the President certifies
under paragraph (3) that remedial action has
been completed at the facility concerned’’, and
inserting ‘‘that the response action that is the
subject of the settlement agreement is se-
lected’’.
(6) Subparagraph (B) of paragraph (5) (as so
redesignated) is amended as follows:
(i) By striking ‘‘In extraordinary cir-
cumstances, the’’ and inserting ‘‘The’’.
(ii) By striking ‘‘those referred to in para-
graph (4) and’’.
(iii) By striking ‘‘if other terms,’’ and in-
serting ‘‘, if the agreement containing the cov-
enant not to sue provides for payment of a pre-
mium to address possible remedy failure or any
releases that may result from unknown condi-
tions, and if other terms,’’.
(iv) By inserting at the end the following:
‘‘The President may, in his discretion, waive or
reduce the premium payment for persons who
demonstrate an inability to pay such a pre-
mium.’’.
SEC. 412. EXPEDITED FINAL SETTLEMENTS.
Section 122 is amended as follows:
112
(1) Subsection (g) is amended by striking ‘‘(g)’’
and all that follows through the end of subparagraph
(A) of paragraph (1) and inserting in lieu thereof
the following:
‘‘(g) EXPEDITED FINAL SETTLEMENT:
‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET-
TLEMENT.—The President shall, as promptly as pos-
sible, offer to reach a final administrative or judicial
settlement with potentially responsible parties who,
in the judgment of the President, meet one or more
of the following conditions for eligibility for an expe-
dited settlement:
‘‘(A) The potentially responsible party’s in-
dividual contribution of hazardous substances
at the facility is de minimis. The contribution
of hazardous substance to a facility by a poten-
tially responsible party is de minimis if both of
the following conditions are met:
‘‘(i) The potentially responsible par-
ty’s volumetric contribution of materials
containing hazardous substances is mini-
mal in comparison to the total volumetric
contributions of materials containing haz-
ardous substances at the facility; such indi-
vidual contribution is presumed to be mini-
113
mal if it is one percent or less of the total
volumetric contribution at the facility, un-
less the Administrator identifies a different
threshold based on site-specific factors.
‘‘(ii) The potentially responsible par-
ty’s hazardous substances do not present
toxic or other hazardous effects that are
significantly greater than those of other
hazardous substances at the facility.’’.
(2) Subsection (g) is further amended by insert-
ing after subparagraph (B) of paragraph (1) the
following:
‘‘(C) The potentially responsible party’s li-
ability is based solely on paragraph (3) or (4)
of section 107(a), and the arrangement for dis-
posal, treatment, or transport for disposal or
treatment, or the acceptance for transport for
disposal or treatment, involved only municipal
solid waste or sewage sludge. The Adminis-
trator may offer to settle the aggregate liability
of generators and transporters of municipal
solid waste or sewage sludge whose liability is
limited pursuant to paragraph (7) of section
107(a) for up to 10 percent of the total re-
sponse costs at the facility.
114
‘‘(D)(i) The potentially responsible party is
a natural person, a small business, or a munici-
pality and can demonstrate to the United
States an inability or limited ability to pay re-
sponse costs. A party who enters into a settle-
ment pursuant to this subparagraph shall be
deemed to have resolved its liability under this
Act to the United States for all matters ad-
dressed in the settlement.
‘‘(ii) For purposes of this subparagraph,
the following provisions apply:
‘‘(I) In the case of a small business,
the President shall take into consideration
the ability to pay of the business, if re-
quested by the business. The term ‘ability
to pay’ means the President’s reasonable
expectation of the ability of the small busi-
ness to pay its total settlement amount
and still maintain its basic business oper-
ations. Such consideration shall include the
business’s overall financial condition and
demonstrable constraints on its ability to
raise revenues.
‘‘(II) Any business requesting such
consideration shall promptly provide the
115
President with all relevant information
needed to determine the business’s ability
to pay.
‘‘(III) The business shall demonstrate
the amount of its ability to pay. If the
business employs fewer than 20 employees,
and has annual gross revenues of less than
$1,800,000 or a net profit margin of less
than 2 percent, the President shall perform
any analysis that may be required to dem-
onstrate the business’s ability to pay. The
President, in his discretion, may perform
such analysis for any other party or re-
quire such other party to perform the
analysis.
‘‘(IV) If the President determines that
a small business is unable to pay its total
settlement amount immediately, the Presi-
dent shall consider alternative payment
methods as may be necessary or appro-
priate. The methods to be considered may
include installment payments to be paid
during a period of not to exceed 10 years
and the provision of in-kind services.
116
‘‘(iii) For purposes of this subparagraph,
in the case of a municipal owner or operator of
a facility, the President shall consider, to the
extent that information is provided by the mu-
nicipality, the following factors:
‘‘(I) the municipality’s general obliga-
tion bond rating and information about the
most recent bond issue for which the rat-
ing was prepared;
‘‘(II) the amount of total available
funds (other than dedicated funds and
State assistance payments for remediation
of inactive hazardous waste sites);
‘‘(III) the amount of total operating
revenues (other than obligated or encum-
bered revenues);
‘‘(IV) the amount of total expenses;
‘‘(V) the amounts of total debt and
debt service;
‘‘(VI) per capita income;
‘‘(VII) real property values;
‘‘(VIII) unemployment information;
and
‘‘(IX) population information.
117
‘‘(iv) Any municipality which is a poten-
tially responsible party may submit for consid-
eration by the President an evaluation of the
potential impact of the settlement on essential
services that the municipality must provide, and
the feasibility of making delayed payments or
payments over time. If a municipality asserts
that it has additional environmental obligations
besides its potential liability under this Act,
then the municipality may create a list of the
obligations, including an estimate of the costs
of complying with such obligations.
‘‘(v) Any municipality which is a poten-
tially responsible party may establish an inabil-
ity to pay through an affirmative showing that
such payment of its liability under this Act
would either—
‘‘(I) create a substantial demonstrable
risk that the municipality would default on
existing debt obligations, be forced into
bankruptcy, be forced to dissolve, or be
forced to make budgetary cutbacks that
would substantially reduce current levels of
protection of public health and safety; or
118
‘‘(II) necessitate a violation of legal
requirements or limitations of general ap-
plicability concerning the assumption and
maintenance of fiscal municipal obliga-
tions.
‘‘(vi) This subparagraph does not limit or
affect the President’s authority to evaluate any
person’s ability to pay or to enter into settle-
ments with any person based on that person’s
inability to pay.’’.
(3) Paragraphs (2) and (3) of subsection (g)
are amended to read as follows:
‘‘(2) BASIS OF DETERMINATION.—Any person
who enters into a settlement pursuant to this sub-
section shall provide any information requested by
the President or by an allocator in accordance with
section 130(i)(1) or section 104(e) of this Act. The
determination of whether a person is eligible for an
expedited settlement shall be made on the basis of
all information available to the President at the time
the determination is made. Neither the President’s
determination as to the eligibility of a party that is
not a department, agency, or instrumentality of the
United States for settlement pursuant to this sec-
tion, nor the terms of the final settlement with such
119
a party, shall be subject to judicial review. If the
President determines that a party is not eligible for
a settlement pursuant to this section, the President
shall explain the basis for that determination in
writing to any person who requests such a settle-
ment.
‘‘(3) ADDITIONAL FACTORS RELEVANT TO SET-
TLEMENTS
WITH
MUNICIPALITIES.—In any settle-
ment with a municipality pursuant to this Act, the
President may take additional equitable factors into
account in determining an appropriate settlement
amount, including the limited resources available to
that party, and any in-kind services that the party
may provide to support the response action at the
facility. In considering the value of in-kind services,
the President shall consider the fair market value of
those services.’’.
(4) Subsection (g) is further amended—
(A) 
in 
paragraph 
(4), 
by 
striking
‘‘$500,000’’ and inserting ‘‘$2,000,000’’; and
(B) by striking paragraph (5).
(5) Subsection (h) is amended as follows:
(A) By amending the heading to read as
follows: ‘‘AUTHORITY TO SETTLE CLAIMS FOR
120
FINES, CIVIL PENALTIES, PUNITIVE DAMAGES,
AND COST RECOVERY.—’’.
(B) In paragraph (1)—
(i) In the first sentence, by striking
‘‘costs incurred’’ and inserting ‘‘past and
future costs incurred or that may be in-
curred’’.
(ii) In the first sentence, by inserting
after ‘‘if the claim has not been referred to
the Department of Justice for further ac-
tion.’’ the following: ‘‘The head of any de-
partment or agency with the authority to
seek fines, civil penalties, or punitive dam-
ages under this Act may consider, com-
promise, and settle claims for any such
fines, civil penalties, or punitive damages
which may otherwise be assessed in civil
administrative or judicial proceedings if
the claim has not been referred to the De-
partment of Justice for further action. If
the total claim for fines, civil penalties, or
punitive damages exceeds $300,000, such
claim may be compromised and settled
only with the prior written approval of the
Attorney General.’’.
121
(iii) In the second sentence, by strik-
ing ‘‘$500,000 (excluding interest), any
claim referred to in the preceding sen-
tence’’ and inserting ‘‘$2,000,000 (exclud-
ing interest), any claim for response costs
referred to in this subsection’’.
(C) By striking paragraph (4).
SEC. 413. ALLOCATION PROCEDURES.
Insert after section 129 the following new section:
‘‘SEC. 130. ALLOCATION AT MULTIPARTY FACILITIES.
‘‘(a) SCOPE.—
‘‘(1) POST-INTRODUCTION
RODS.—For each
non-federally owned facility listed on the National
Priorities List involving 2 or more potentially re-
sponsible parties for which the President selects a
remedial action on or after February 3, 1994, the
Administrator shall initiate the allocation process
under this section. This paragraph shall not apply to
remedial actions selected prior to such date.
‘‘(2) PRE-INTRODUCTION RODS.—For each non-
federally owned facility listed on the National Prior-
ities List involving 2 or more potentially responsible
parties, for any remedial action selected by the
President before February 3, 1994, the Adminis-
trator shall initiate the allocation process under this
122
section, if requested to do so by a potentially respon-
sible party which has resolved its liability to the
United States with respect to the remedial action or
which is performing the remedial action pursuant to
an order issued under section 106(a).
‘‘(3) OTHER FACILITIES.—The Administrator,
as the Administrator deems appropriate, may initi-
ate the allocation process under this section for any
facility involving 2 or more potentially responsible
parties.
‘‘(4) EXCLUDED
FACILITIES.—The allocation
process under this section shall not apply to either
of the following:
‘‘(A) A facility for which there has been a
final settlement, decree, or order that deter-
mines all liability or allocated shares of all po-
tentially responsible parties.
‘‘(B) A facility at which all of the poten-
tially responsible parties are liable or potentially
liable as facility owners or operators pursuant
to section 107(a)(1) or (2).
‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An allo-
cation under this section, shall apply to all remedial
actions selected by the President on or after Feb-
ruary 3, 1994, for a facility (but not to those reme-
123
dial actions described in paragraph (2)), unless the
allocator determines that the allocation should ad-
dress only one or more of such remedial actions.
‘‘(6) MULTIPLE
FACILITIES.—Where appro-
priate, the Administrator may initiate a single allo-
cation process under this section for more than 1
facility.
‘‘(7) EFFECT OF ALLOCATION.—An allocation
performed pursuant to paragraph (2) or (3) of this
section shall not be construed to require—
‘‘(A) payment of an orphan share pursuant
to this section; or
‘‘(B) the conferral of reimbursement rights
pursuant to this section.
‘‘(8) SETTLEMENT OFFERS AFTER COMMENCE-
MENT OF LITIGATION.—The provisions of this sec-
tion shall not apply to any offer of settlement made
after expiration of the moratorium period under sub-
section (b).
‘‘(b) MORATORIUM
ON COMMENCEMENT
OR CON-
TINUATION OF SUITS.—
‘‘(1) MORATORIUM.—No person may assert any
claim for response costs pursuant to section 107 of
this Act or commence any civil action seeking recov-
ery of any response costs in connection with a re-
124
sponse action for which an allocation is required
under subsection (a)(1) or (2), or for which the Ad-
ministrator has initiated an allocation under sub-
section (a)(3), until 90 days after issuance of the
allocator’s report under subsection (h) or (m),
whichever is later.
‘‘(2) STAY OF EXISTING ACTIONS.—If a claim
for response costs pursuant to section 107 of this
Act or an action seeking recovery of response costs
in connection with a response action for which an al-
location is required under subsection (a)(1) or
(a)(2), or for which the Administrator has initiated
an allocation under subsection (a)(3), is pending—
‘‘(A) upon the date of enactment of the
Superfund Reform Act of 1995, or
‘‘(B) upon initiation of an allocation,
the action or claim shall be stayed until 90 days
after the issuance of the allocator’s report under
subsection (h) or (m), unless the court determines
that a stay will result in manifest injustice.
‘‘(3) STATUTE OF LIMITATIONS.—Any applica-
ble limitations period with respect to a cause of ac-
tion subject to paragraph (1) shall be tolled from the
earlier of the following until 180 days after the issu-
125
ance of the allocator’s report under subsection (h) or
(m):
‘‘(A) The date of listing of the facility on
the National Priorities List.
‘‘(B) The commencement of the allocation
process pursuant to this section.
‘‘(c) COMMENCEMENT OF ALLOCATION.—
‘‘(1) RESPONSIBLE PARTY SEARCH.—At all fa-
cilities subject to this section, the Administrator
shall, as soon as practicable, but not later than 60
days after the commencement of the remedial inves-
tigation, initiate a thorough investigation and search
for all potentially responsible parties, using his au-
thorities under section 104. Any person may submit
information to the Administrator concerning any po-
tentially responsible party at the facility, and the
Administrator shall consider such information in
carrying out the responsible party search.
‘‘(2) NOTIFICATION OF DE MINIMIS PARTIES.—
As soon as practicable after receipt of sufficient in-
formation, but not more than 12 months after the
commencement of the remedial investigation, the
Administrator shall take each of the following ac-
tions:
126
‘‘(A) The Administrator shall notify any
potentially responsible party who the Adminis-
trator determines is eligible for an expedited
final settlement in accordance with section
122(g)(1)(A) of its eligibility, based on informa-
tion available to the Administrator at the time
the determination is made. Any such informa-
tion that is not confidential shall, to the extent
practicable, be made available by the Adminis-
trator to the party at the time of the settlement
offer.
‘‘(B) The Administrator shall submit a
written settlement offer to each party notified
under subparagraph (A) no later than 60 days
after such notification. The Administrator shall,
at the same time, make available to such party
upon request any nonconfidential information
related to the party’s settlement upon which the
Administrator based the settlement offer. If the
settlement offer is based in whole or in part on
confidential information, the Administrator
shall so advise such party.
‘‘(3) PRELIMINARY
NOTICE
TO
OTHER
PAR-
TIES.—As soon as practicable after receipt of suffi-
cient information, but not later than 18 months
127
after commencement of the remedial investigation,
the Administrator shall—
‘‘(A) notify any party not previously noti-
fied under paragraph (2) who the Adminis-
trator determines is eligible for an expedited
final settlement in accordance with section
122(g)(1)(A) of its eligibility, based on informa-
tion available to the Administrator at the time
the determination is made;
‘‘(B) issue a list of all potentially respon-
sible parties preliminarily identified by the Ad-
ministrator to all such parties;
‘‘(C) notify the public, in accordance with
section 117(d), of the list of potentially respon-
sible parties identified pursuant to subpara-
graphs (A) and (B) by the Administrator; and
‘‘(D) make available all responses to the
Administrator’s information requests, as well as
other relevant information concerning the facil-
ity and potentially responsible parties, to the
notified parties, to the extent it is available to
the Administrator.
The Administrator shall not make available any
privileged or confidential information, except as oth-
erwise authorized by law. The Administrator shall
128
take the actions specified in this paragraph within 9
months after the date of enactment of this section
for all facilities eligible for allocation under sub-
section (a)(1) or (a)(2) for which the responsible
party search required by a paragraph (1) was sub-
stantially complete prior to the date of the enact-
ment of this section.
‘‘(4) STATUS OF PARTIES.—At the time of pro-
posing the list of potentially responsible parties
under paragraph (3), the Administrator shall—
‘‘(A) identify parties that are eligible for
expedited 
settlement 
pursuant 
to 
section
122(g);
‘‘(B) identify parties who are not eligible
for such expedited settlement; or
‘‘(C) determine that there is insufficient
information to ascertain whether or not the
party is eligible for such expedited settlement.
‘‘(5) NOMINATION
OF
PARTIES.—(A) For 60
days after information has been made available pur-
suant to paragraph (3), the parties identified by the
Administrator and members of the affected commu-
nity shall have the opportunity to identify and nomi-
nate additional potentially responsible parties or oth-
erwise provide information relevant to the facility or
129
such potentially responsible parties. This period may
be extended by the Administrator for an additional
30 days upon request of any person.
‘‘(B) Any proposal for the addition of any po-
tentially responsible party with respect to a facility
shall be supported by a statement setting forth the
basis in law and fact for the nominating party’s be-
lief that the additional nominated party is poten-
tially liable under this Act and by full disclosure to
the Administrator and to the nominated party at the
same time of all available information concerning
that party’s liability under this Act and that party’s
contribution of hazardous substances to the facility.
The nominated party may submit to the Adminis-
trator information relating to its inclusion as an ad-
ditional potentially responsible party within 45 days
of the receipt of such information.
‘‘(6) LIST
OF
ALLOCATION
PARTIES.—(A)
Within 60 days after the end of the period specified
in paragraph (5)(A) for the proposal of additional
parties, the Administrator shall—
‘‘(i) issue a list of parties subject to the al-
location process (hereinafter referred to in this
section as the ‘allocation parties’);
130
‘‘(ii) identify in writing, as to each of the
proposed additional parties, which parties the
Administrator has determined, in the Adminis-
trator’s sole discretion—
‘‘(I) to be eligible for expedited settle-
ment pursuant to section 122(g),
‘‘(II) not to be eligible for such expe-
dited settlement, and
‘‘(III) for whom insufficient informa-
tion exists to determine whether or not the
party is eligible for such expedited settle-
ment; and
‘‘(iii) identify (in writing supported by
brief explanation) those parties as to which the
Administrator has determined, in the Adminis-
trator’s sole discretion, that there is an inad-
equate basis in law or fact to determine that
the party is liable under this Act.
The Administrator shall consider, when making de-
terminations under this subparagraph, all available
information 
provided 
pursuant 
to 
section
130(c)(5)(B). For each party identified under clause
(iii), the Administrator shall further identify whether
that party, if liable, would be eligible for an expe-
dited settlement.
131
‘‘(B) At the time of issuance of the list of par-
ties provided for in subparagraph (A), the Adminis-
trator shall provide the potentially responsible par-
ties who received notice under this paragraph with
a list of neutral parties who are not employees of the
United States and who the Administrator deter-
mines, in the Administrator’s sole discretion, are
qualified to perform an allocation at the facility.
‘‘(C) De minimis parties the Administrator
identifies as potentially liable but eligible for expe-
dited settlement pursuant to this section, shall not
be subject to, or assigned a share in, the allocation
(except to the extent required to determine the or-
phan share pursuant to subsection (h)), unless that
party fails to reach an agreement with the President
on settlement terms within 30 days after the offer.
‘‘(D) If the Administrator determines that there
is an inadequate basis in law or fact to conclude that
a party is liable based on the information presented
by the nominating party or otherwise available to
the Administrator, the determination shall have the
following effect:
‘‘(i) With respect to a party that the Ad-
ministrator has determined to be—
132
‘‘(I) exempt from liability pursuant to
section 107(a)(6)(A) or (B); or
‘‘(II) not liable on some other basis
but who, if liable, would be eligible for an
expedited settlement,
the Administrator’s determination shall mean
that the party shall not be subject to, and shall
not be assigned a share in, the allocation.
‘‘(ii) With respect to all other parties, the
Administrator’s determination shall be accorded
deference by the allocator. For such parties the
allocator shall consider the Administrator’s de-
termination together with the allocation factors
listed in subsection (h)(2).
‘‘(E) The Administrator’s determinations for
purposes of this subsection shall not be subject to
judicial review, nor shall any determination or expla-
nation provided for purposes of the allocation be ad-
missible for any purpose in an action commenced by
the United States against the party that is the sub-
ject of the determination or any other party.
‘‘(F) The allocator may assign a zero share to
any party the allocator determines should receive
such a share in consideration of the allocation fac-
133
tors including the Administrator’s determinations
under subparagraph (C).
‘‘(G) If a party is included in the allocation
pursuant to the nomination of a potentially respon-
sible party pursuant to subsection (c)(5), but as-
signed a zero share by the allocator, that party’s
costs of participating in the allocation (including
reasonable attorneys’ fees) shall be borne by the
party who proposed the addition of the party to the
allocation.
‘‘(d) DE MINIMIS SETTLEMENT OFFER.—(1) Within
30 days after the final list of parties is issued pursuant
to paragraph (6) of subsection (c), the Administrator shall
submit a written settlement offer to any party identified
as a potentially responsible party pursuant to this section
who the Administrator has determined to be eligible for
an expedited final settlement in accordance with section
122(g)(1)(A), and who has not entered into a settlement
with the United States regarding the matters being ad-
dressed by the allocation. The Administrator shall, at the
same time, make available to such party upon request any
nonconfidential information related to the party’s settle-
ment.
‘‘(2) The President shall not include any premia pur-
suant to section 122(g) in a settlement offer made pursu-
134
ant to paragraph (1) more than 60 days after the date
the offer is required to be made pursuant to paragraph
(1) to a party that is a small business, as defined in sec-
tion 101(47).
‘‘(3) If a party is a small business which the Presi-
dent has determined is eligible for a settlement pursuant
to section 122(g)(1)(A), and the party is not offered a set-
tlement by the President within 120 days after the date
the offer is required to be made pursuant to paragraph
(1), the party shall have no further liability under this Act
for the costs of response actions at the facility for which
the allocation is being performed, unless the President de-
termines that there is just cause for the delay and such
delay is due to factors outside the President’s control.
‘‘(e) SELECTION OF ALLOCATOR.—
‘‘(1) 
PROPOSAL
OF
ADDITIONAL
CAN-
DIDATES.—Any party identified by the Adminis-
trator under subsection (c) may propose any person
whom such party deems qualified for selection as an
allocator in addition to those proposed from the list
provided under subsection (c)(6)(B).
‘‘(2) SELECTION OF ALLOCATOR BY ALLOCA-
TION PARTIES.—The allocation parties shall select
an allocator from the list of allocators proposed by
the Administrator or under paragraph (1) by the fol-
135
lowing voting method with each allocation party hav-
ing a single vote:
‘‘(A) Each allocation party, with the Ad-
ministrator voting for the identified but insol-
vent or defunct parties, shall numerically rank
the individuals on the final list of proposed
allocators, with a ranking of 1 indicating first
preference, and forward its vote to the Adminis-
trator within 30 days of the issuance of the
final list of allocators pursuant to subsection
(c)(6)(B).
‘‘(B) The proposed allocator who receives
the lowest combined numerical score, taking
into account all votes submitted to the Adminis-
trator pursuant to clause (i), and who agrees to
serve as allocator, shall be the allocator.
‘‘(3) PEREMPTORY
STRIKE.—The Adminis-
trator may reject any allocator selected by the allo-
cation parties if the proposed allocator is not on the
list provided under paragraph (6)(B) of subsection
(c). In the case of any such rejection, the allocation
parties shall select the allocator in order of numeri-
cal ranking in accordance with this subsection.
‘‘(4) SELECTION OF ALLOCATOR BY EPA.—If
the allocation parties do not select an allocator pur-
136
suant to this subsection within 30 days after receipt
of the list provided under paragraph (2), the Admin-
istrator shall select the allocator, except that if the
Administrator rejects 4 or more allocators selected
by the allocation parties, the Administrator shall ini-
tiate a new allocator selection process under this sec-
tion.
‘‘(f) CONTRACT.—Following selection of the allocator,
the Administrator shall enter into a contract with the se-
lected allocator for the provision of allocation services for
the facility concerned, and immediately make available all
responses to information requests, as well as other rel-
evant information concerning the facility and potentially
responsible parties, to the allocator. The Administrator
has the authority to use the procedures set forth in section
109(e) to obtain the services of a neutral professional for
use in conducting allocation procedures under this section,
whether or not the neutral professional actually conducts
such allocation procedures.
‘‘(g) POTENTIALLY RESPONSIBLE PARTY SETTLE-
MENT.—At any time prior to the issuance of an allocation
report as described in subsection (h), any group of poten-
tially responsible parties may submit to the allocator a pri-
vate allocation. If such private allocation meets all of the
137
following criteria, the allocator shall promptly adopt it as
the allocation report:
‘‘(1) The private allocation is a binding alloca-
tion of 100 percent of the past, present, and future
recoverable response costs at issue under subsection
(a).
‘‘(2) The private allocation does not allocate
any share of response costs to any person who is not
a signatory to the proposed private allocation or, in
the case of any orphan share, unless the United
States (and, where applicable, the State) is a signa-
tory to the proposed private allocation.
‘‘(3) The signatories to the proposed private al-
location waive their contribution rights with respect
to the remedial action against all other potentially
responsible parties at the facility.
‘‘(h) ALLOCATION DETERMINATION.—
‘‘(1) 
SETTLEMENT
AND
ALLOCATION
RE-
PORT.—Following issuance of the list of allocation
parties pursuant to subsection (c)(6)(A)(i), the allo-
cator shall initiate and conduct an allocation process
that shall culminate in the issuance of a written re-
port, with a nonbinding, equitable allocation of the
percentage shares of responsibility of all allocation
parties, including the orphan share, for response
138
costs at the facility, and provide such report to the
allocation parties and the Administrator. The allo-
cator shall provide the report to the allocation par-
ties and the Administrator within 180 days of the is-
suance of the list of allocation parties pursuant to
subsection (c)(6) or the date of the contract for allo-
cation service pursuant to subsection (f), whichever
is later. Upon request, for good cause shown, the
Administrator may grant the allocator additional
time to complete the allocation, not to exceed 90
days.
‘‘(2) FACTORS IN THE ALLOCATION.—The allo-
cator shall prepare a nonbinding, equitable allocation
of percentage shares for the facility based on the fol-
lowing factors:
‘‘(A) The amount of hazardous substances
contributed by each allocation party.
‘‘(B) The degree of toxicity of hazardous
substances contributed by each allocation party.
‘‘(C) The mobility of hazardous substances
contributed by each allocation party.
‘‘(D) The degree of involvement of each al-
location party in the generation, transportation,
treatment, storage, or disposal of the hazardous
substance.
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 in-
clude any shares allocated to Federal, State, or local
governmental agencies, departments, or instrumen-
talities. 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
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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
171
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
transaction—
‘‘(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 re-
gard to transactions occurring after the effec-
tive date of such regulations or standards; and
‘‘(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
172
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 Ad-
ministrator excludes from this definition by regula-
tion and steel shipping containers of a capacity from
30 liters to and including 3,000 liters, whether in-
tact 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 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 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 batteries but did not recover the valuable com-
ponents of such batteries; and
185
‘‘(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
actions under this Act and revise such list periodi-
cally. The State shall also revise such list as re-
quested by the President.
‘‘(C)(i) A goal of this Act is to restore any con-
taminated ground water and surface water that may
be used for drinking water to—