‘‘(B) agrees to the other terms and condi-
tions stated in this subsection.
‘‘(2) PERFORMANCE SETTLEMENTS.—Using the
procedures set forth in section 122, the Adminis-
trator and one or more parties may enter into an
agreement requiring the performance of response ac-
tions subject to an allocation.
‘‘(3) PROVISIONS OF SETTLEMENTS.—Each set-
tlement based on an allocation under this subsection
shall include—
‘‘(A) a waiver of contribution rights
against all persons that are potentially respon-
sible parties for any response action addressed
in the settlement;
‘‘(B) a covenant not to sue consistent with
section 122(f) and, except in the case of a cash-
out settlement, provisions regarding perform-
ance or adequate assurance of performance of
the response action;
‘‘(C) in the case of a settlement under
paragraph (1), a premium, not to exceed 10
percent, that is calculated on a facility-specific
basis and reflects the actual risk to the United
States of not recovering response costs for the
response action, despite the diligent prosecution
of litigation against any viable allocation party
that has not resolved its liability to the United
States, except that no premium shall apply if
all allocation parties participate in the settle-
ment or if the settlement covers 100 percent of
the response costs subject to the allocation;
‘‘(D) complete protection from all claims
for contribution regarding the response action
addressed in the settlement; and
‘‘(E) provisions through which a settling
party shall receive prompt reimbursement from
the Fund under subsection (n) of any response
costs incurred by the party for any response ac-
tion that is the subject of the allocation in ex-
cess of the allocated share of the party.
‘‘(m) ADMINISTRATIVE ORDERS.—
‘‘(1) POST-ALLOCATION ISSUANCE OF SECTION
106 ORDERS.—Except as provided in paragraph (2),
upon the expiration of the moratorium period under
subsection (b)(4), the President may issue orders
under section 106 to a person or persons found lia-
ble at the facility by the allocator only if the aggre-
gate allocated share or shares of such person’s or
persons’ liability exceed 15 percent.
‘‘(2) WAIVER.—The President may issue an
order under section 106 to a person to whom the
President otherwise would be prohibited from issuing
an order under paragraph (1) if the person waives
in writing the prohibition provided by paragraph (1)
against being issued an order.
‘‘(3) ORDER IN LIEU OF OTHER ACTION FOR
RECOVERY.—An administrative order issued under
section 106 shall be in lieu of any action by the
United States or any other person against a party
for recovery of response costs in connection with the
response action, or for contribution toward the costs
of the response action.
‘‘(n) POST-ALLOCATION PERFORMANCE.—
‘‘(1) IN GENERAL.—An allocation party that in-
curs costs after the date of enactment of this section
for the performance (whether under a consent decree
or settlement or under an administrative order is-
sued under section 106) of a response action that is
the subject of an allocation under this section to an
extent that exceeds the percentage share of the allo-
cation party, as determined by the allocator, shall be
entitled to prompt reimbursement from the Fund of
the excess amount. Such right to reimbursement
100
shall not be contingent on recovery by the United
States of any response costs from any person.
‘‘(2) TERMS AND CONDITIONS.—
‘‘(A) TIMING.—
‘‘(i) IN GENERAL.—A reimbursement
payment shall be paid during the course of
the response action that was the subject of
the allocation, with reasonable progress
payments at significant milestones.
‘‘(ii) 
CONSTRUCTION.—Reimburse-
ment for the construction portion of the re-
sponse action shall be paid not later than
120 days after the date of actual comple-
tion of the construction.
‘‘(B) EQUITABLE OFFSET.—A reimburse-
ment payment is subject to equitable offset or
recoupment by the Administrator at any time if
the allocation party fails to perform the re-
sponse action in a proper and timely manner.
‘‘(C) WAIVER.—An allocation party seek-
ing reimbursement under this subsection waives
the right to seek recovery of response costs in
connection with the response action, or con-
tribution toward the response costs, from any
other person.
101
‘‘(3) AMOUNTS OWED.—
‘‘(A) DELAY
IF
FUNDS
ARE
UNAVAIL-
ABLE.—If funds are unavailable in any fiscal
year to reimburse all allocation parties pursuant
to paragraph (1), the Administrator may delay
payment until funds are available.
‘‘(B) PRIORITY.—The priority for reim-
bursement shall be based on the length of time
that has passed since any settlement between
the United States and the allocation parties
pursuant to subsection (l).–
‘‘(C) PAYMENT FROM FUNDS MADE AVAIL-
ABLE
IN
SUBSEQUENT
FISCAL
YEARS.—Any
amount due and owing in excess of available ap-
propriations in any fiscal year shall be paid
from amounts made available in subsequent fis-
cal years, along with interest on the unpaid bal-
ances at the rate equal to that of the current
average market yield on outstanding marketable
obligations of the United States with a maturity
of 1 year.
‘‘(o) POST-SETTLEMENT LITIGATION.—
‘‘(1) IN GENERAL.—Subject to subsection (l),
and on the expiration of the moratorium period
under subsection (b)(4), the Administrator may
102
commence an action under section 107 against any
party that has not resolved its liability to the United
States following an allocation and may seek to re-
cover any response costs not recovered through set-
tlements with other persons, including all or any of
the amounts constituting the fair share funding.
‘‘(2) CERTIFICATION.—In commencing or main-
taining an action under section 107 against a party
after the expiration of the moratorium period under
subsection (b)(4), the Attorney General shall certify
in the complaint that the defendant failed to settle
the matter based on the share that the allocation re-
port assigned to the party.
‘‘(3) IMPLEADER.—A defendant in an action
under paragraph (1) may implead an allocation
party only if the allocation party did not resolve its
liability to the United States.
‘‘(4) RESPONSE COSTS.—
‘‘(A) ALLOCATION PROCESS.—The cost of
implementing the allocation process under this
section, including reasonable fees and expenses
of the allocator, shall be deemed a necessary re-
sponse cost.
103
‘‘(B) FUNDING
OF
FUND
SHARES.—The
costs of all fair share funding under this sec-
tion—
‘‘(i) shall be considered as a necessary
cost of response; and
‘‘(ii) shall be recoverable under section
107 only from an allocation party that has
not reached a settlement under subsection
(l) and has not received an order issued
under section 106.’’.
SEC. 209. TRANSITION RULES RELATING TO CERTAIN NON-
LIABLE PARTIES.
Title I (42 U.S.C. 9601 et seq.) is further amended
by adding at the end the following new section:
‘‘SEC. 129. TRANSITION RULES RELATING TO CERTAIN NON-
LIABLE PARTIES.
‘‘(a) COSTS INCURRED AFTER NOVEMBER 7, 1997,
BY NONLIABLE PARTIES.—With respect to facilities for
which an allocation under section 128 has been performed,
the Administrator shall reimburse nonliable parties for
costs of response incurred by them after November 9,
1997, at such facilities in accordance with the reimburse-
ment provisions in section 128(n).
‘‘(b) CONTINUED PERFORMANCE REQUIRED.—The
amendments to this Act made by the Superfund Reform
104
Act shall not affect the responsibility of a nonliable party
to perform a response action if ordered to do so under
section 106 or if required to do so under a settlement or
consent decree entered into with the United States before
the date of the enactment of this section.
‘‘(c) NONLIABLE PARTY DEFINED.—For purposes of
this section, the term ‘nonliable party’ means a potentially
responsible party who becomes exempt from liability under
this Act on the date of the enactment of the Superfund
Reform Act because of the amendments made by that
Act.’’.
SEC. 210. CLARIFICATION OF LIABILITY UNDER CERCLA
FOR RECYCLING TRANSACTIONS.
Title I (42 U.S.C. 9601 et seq.) is further amended
by adding at the end the following new section:
‘‘SEC. 130. RECYCLING TRANSACTIONS.
‘‘(a) LIABILITY CLARIFICATION.—As provided in
subsections (b), (c), (d), and (e), a person who arranged
for the recycling of a 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
105
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.
‘‘(2) A market existed for the recyclable mate-
rial.
‘‘(3) A substantial portion of the recyclable ma-
terial was made available for use as 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
106
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 recyclable ma-
terial.
‘‘(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 trans-
action;
‘‘(B) the ability of the person to detect the
nature of the consuming facility’s operations
concerning its handling, processing, reclama-
107
tion, or other management activities associated
with recyclable material; and
‘‘(C) the result of inquiries made to the ap-
propriate Federal, State, or local environmental
agency (or agencies) regarding the consuming
facility’s past and current compliance with sub-
stantive (not procedural or administrative) pro-
visions of any Federal, State, or local environ-
mental law or regulation, or compliance order
or decree issued pursuant thereto, applicable to
the handling, processing, reclamation, storage,
or other management activities associated with
the recyclable material. For the purposes of this
paragraph, a requirement to obtain a permit
applicable to the handling, processing, reclama-
tion, or other management activity associated
with the recyclable materials shall be deemed to
be a substantive provision.
‘‘(d) TRANSACTIONS INVOLVING SCRAP METAL.—
‘‘(1) Transactions involving scrap metal shall be
deemed to be arranging for recycling if the person
who arranged for the transaction (by selling recycla-
ble material or otherwise arranging for the recycling
of recyclable material) can demonstrate by a prepon-
108
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 purposes of this subsection, the term
‘scrap metal’ means bits and pieces of metal parts
(e.g., bars, turnings, rods, sheets, wire) or metal
pieces that may be combined together with bolts or
soldering (e.g., radiators, scrap automobiles, railroad