173
‘‘(B)(i) with respect to transactions involving
lead-acid batteries, the person was in compliance
with applicable Federal environmental regulations or
standards, and any amendments thereto, regarding
the storage, transport, management, or other activi-
ties associated with the recycling of spent lead-acid
batteries;
‘‘(ii) with respect to transactions involving nick-
el-cadmium batteries, Federal environmental regula-
tions or standards are in effect regarding the stor-
age, transport, management, or other activities asso-
ciated with the recycling of spent nickel-cadmium
batteries, and the person was in compliance with ap-
plicable regulations or standards or any amendments
thereto; or
‘‘(iii) with respect to transactions involving
other spent batteries, Federal environmental regula-
tions or standards are in effect regarding the stor-
age, transport, management, or other activities asso-
ciated with the recycling of such batteries, and the
person was in compliance with applicable regulations
or standards or any amendments thereto.
‘‘(2) For purposes of paragraph (1)(A) of this sub-
section, a person who, by contract, arranges or pays for
processing of batteries by an unrelated third person and
174
receives from such third person materials reclaimed from
such batteries shall not thereby be deemed to recover the
valuable components of such batteries, provided, however,
that (A) for transactions occurring more than 90 days
after the date of enactment of the Superfund Reform Act
of 1995, such person exercised due diligence in determin-
ing that such third person was in compliance with all Fed-
eral, State, and local environmental laws and regulations
applicable to the storage, transport, management, or other
activities associated with the recycling of spent batteries;
and (B) such person had no knowledge or reason to know
of the release or threatened release.
‘‘(f) EXCLUSIONS.—(1) The exemptions set forth in
subsections (c), (d), and (e) shall not apply if—
‘‘(A) the person had an objectively reasonable
basis to believe at the time of the recycling trans-
action—
‘‘(i) that the recyclable material would not
be recycled,
‘‘(ii) that the recyclable material would be
burned as fuel, or for energy recovery or incin-
eration, or
‘‘(iii) for transactions occurring before 90
days after the date of the enactment of this sec-
tion, that the consuming facility was not in
175
compliance with a substantive (not a procedural
or administrative) provision of any Federal,
State, or local environmental law or regulation,
or compliance order or decree issued pursuant
thereto, applicable to the handling, processing,
reclamation, or other management activities as-
sociated with the recyclable material; or
‘‘(B) the person added hazardous substances to
the recyclable material for purposes other than proc-
essing for recycling; or
‘‘(C) the person failed to exercise reasonable
care with respect to the management and handling
of the recyclable material.
‘‘(2) For purposes of this subsection, an objectively
reasonable basis for belief shall be determined using cri-
teria that include (but are not limited to) the size of the
person’s business, customary industry practices, the price
paid in the recycling transaction, and the ability of the
person to detect the nature of the consuming facility’s op-
erations concerning its handling, processing, reclamation
or other management activities associated with the recy-
clable material.
‘‘(3) For purposes of this subsection, a requirement
to obtain a permit applicable to the handling, processing,
reclamation, or other management activities associated
176
with recyclable material shall be deemed to be a sub-
stantive provision.
‘‘(g) EFFECT
ON OTHER LIABILITY.—Nothing in
this section shall be deemed to affect the liability of a per-
son under paragraph (1) or (2) of section 107(a).
‘‘(h) PCBS.—An exemption under this section does
not apply if the recyclable material contained poly-
chlorinated biphenyls in excess of 50 parts per million or
any new standard promulgated pursuant to applicable
Federal laws.
‘‘(i) REGULATIONS.—The Administrator has the au-
thority, under section 115, to promulgate additional regu-
lations concerning this section.
‘‘(j) EFFECT
ON PENDING
OR CONCLUDED AC-
TIONS.—The exemptions provided in this section shall not
affect any concluded judicial or administrative action or
any pending judicial action initiated by the United States
prior to enactment of this section.
‘‘(k) LIABILITY FOR ATTORNEY’S FEES FOR CER-
TAIN ACTIONS.—Any person who commences an action for
contribution against a person who is not liable by oper-
ation of this section shall be liable to that person for all
reasonable costs of defending that action, including all
reasonable attorney’s and expert witness fees.
177
‘‘(l) RELATIONSHIP TO LIABILITY UNDER OTHER
LAWS.—Nothing in this section shall affect—
‘‘(1) liability under any other Federal, State, or
local statute or regulation promulgated pursuant to
any such statute, including any requirements pro-
mulgated by the Administrator under the Solid
Waste Disposal Act; or
‘‘(2) the ability of the Administrator to promul-
gate regulations under any other statute, including
the Solid Waste Disposal Act.’’.
TITLE V—REMEDY SELECTION
AND CLEANUP STANDARDS
SEC. 501. CLEANUP STANDARDS.
Section 121(d) (42 U.S.C. 9621(d)) is amended as
follows:
(1) In paragraph (3), by inserting ‘‘or 4010(c)
if appropriate’’ after ‘‘3005’’.
(2) By redesignating paragraphs (3) and (4) as
paragraphs (9) and (10), respectively.
(3) By striking out the subsection heading and
designation and all that follows through the end of
paragraph (2) and inserting in lieu thereof the fol-
lowing:
‘‘(d) ESTABLISHMENT OF PROTECTIVE CONCENTRA-
TION LEVELS.—
178
‘‘(1) NATIONAL GOALS FOR THE PROTECTION
OF HUMAN HEALTH AND THE ENVIRONMENT.—In
order to provide consistent and equivalent protection
of human health and the environment to all commu-
nities, within 18 months after the enactment of the
Superfund Reform Act of 1995, the Administrator
shall promulgate national goals to be applied at all
facilities subject to remedial action under this Act.
National goals for human health shall be expressed
as a single, numerical level for chemical carcinogens
and a single, numerical level for noncarcinogens, re-
spectively. The national goals shall provide the basis
for protective concentration levels unless the achieve-
ment of such goals is technically infeasible or unrea-
sonably costly pursuant to subsection (b). In a case
in which the President selects a remedy that does
not achieve the national goals, the President shall
publish an explanation of the basis for that decision.
The national goals shall be developed and promul-
gated in accordance with sections 561 through 570
of title 5, United States Code (commonly referred to
as the ‘Negotiated Rulemaking Act’).
‘‘(2) SCOPE AND PURPOSE OF NATIONAL RISK
PROTOCOL.—The Administrator shall promulgate a
national risk protocol for conducting risk assess-
179
ments under this Act. The national risk protocol
shall be used for risk assessments underlying deter-
minations of the need for remedial action, the estab-
lishment of protective concentration levels of chemi-
cals, and the evaluation of remedial alternatives. The
goal of the national risk protocol is to promote real-
istic estimates that neither minimize nor exaggerate
the risks or potential risks posed by a facility at
which hazardous substances have been disposed of or
otherwise come to be located. The national risk pro-
tocol shall be developed and promulgated in accord-
ance with sections 561 through 570 of title 5, Unit-
ed States Code, to the extent the Administrator
deems appropriate. The national risk protocol shall
establish, to the extent appropriate and practicable,
the following:
‘‘(A) Standardized exposure scenarios de-
fining exposure pathways for a range of unre-
stricted and restricted land uses.
‘‘(B) Standardized formulae or methodolo-
gies for—
‘‘(i) evaluating the exposure pathways
of concern under the standardized expo-
sure scenarios established under subpara-
graph (A); and
180
‘‘(ii) developing, consistent with the
national goals under paragraph (1), chemi-
cal concentration levels protective of recep-
tors currently and reasonably anticipated
to be exposed via the pathways included in
such scenarios for the 100 contaminants
most frequently occurring at facilities ad-
dressed under this Act for which adequate
toxicity information is available.
‘‘(C) Methodologies for facility-specific
evaluations of ecological risks.
‘‘(3) STANDARDIZED
FORMULAE
OR
METH-
ODOLOGIES.—Standardized formulae or methodolo-
gies established under subparagraphs (A) and (B) of
paragraph (2) shall include the following:
‘‘(A) National constants for specific char-
acteristics of individual chemicals not expected
to vary from facility to facility.
‘‘(B) Facility-specific variables for physical
characteristics of the facility and other factors.
Criteria for identifying such variables shall in-
clude the following:
‘‘(i) Whether a characteristic or factor
can be objectively measured based on ac-
tual facility data or reasonably estimated
181
based on credible scientific studies when
facility-measured data cannot be reason-
ably obtained.
‘‘(ii) Whether the effects of a char-
acteristic or factor are scientifically well-
understood.
‘‘(iii) Whether the impact of the char-
acteristic or factor on estimations of risk
or protective concentration levels is signifi-
cant.
‘‘(C) Exposure factors related to demo-
graphics (including separate exposure factors
for sensitive subpopulations to be applied where
relevant), activity patterns, and natural con-
straints. Defaults or ranges of default values
shall be established for such factors and used
unless verifiable data are presented that the de-
faults are significantly different from actual fa-
cility conditions. In such cases, the values shall
be determined on a site-specific basis after con-
sideration of any views expressed by the Com-
munity Working Group, if available, and the af-
fected community.
‘‘(4) APPLICATION OF NATIONAL RISK PROTO-
COL.—(A) The President shall conduct an analysis
182
at each facility to determine which exposure sce-
narios, pathways, and contaminants are relevant to
that facility. Where standardized formulae or meth-
odologies for addressing such relevant scenarios,
pathways, and contaminants are available, they shall
be used.
‘‘(B) Standardized formulae or methodologies
for exposure pathways that do not exist or are not
reasonably anticipated to exist in the future at a fa-
cility shall not be applied in establishing protective
concentration levels for the facility.
‘‘(C) Where standardized formulae or meth-
odologies for particular exposure scenarios, exposure
pathways, or chemicals are unavailable, facility-spe-
cific risk assessment shall be used.
‘‘(5) CONSIDERATIONS IN ESTABLISHING THE
NATIONAL RISK PROTOCOL.—(A) In developing the
national risk protocol under paragraph (2), the Ad-
ministrator shall evaluate and, to the degree appro-
priate and practicable—
‘‘(i) identify appropriate sources of toxicity
information;
‘‘(ii) define the use of probabilistic model-
ing;
183
‘‘(iii) identify criteria for the selection and
application of transport and fate models;
‘‘(iv) define the use of high end and central
tendency exposure cases and assumptions;
‘‘(v) define the use of population risk esti-
mates in addition to individual risk estimates;
‘‘(vi) define appropriate approaches for ad-
dressing cumulative risks posed by multiple
contaminants or multiple exposure pathways;
and
‘‘(vii) establish appropriate sampling ap-
proaches and data quality requirements.
‘‘(B) The national risk protocol shall establish
guidelines for all risk assessments conducted under
paragraph (2), including those by which protective
concentration levels are established, which result in
final protection at the 90th exposure percentile of
the affected population defined by the President.
‘‘(6) PHASING
AND
UPDATING
OF
THE
NA-
TIONAL RISK PROTOCOL.—The national risk protocol
shall be developed in accordance with a schedule pro-
mulgated by the Administrator within 90 days after
the date of enactment of the Superfund Reform Act
of 1995. The national risk protocol may be devel-
oped and promulgated in phases as determined ap-
184
propriate by the Administrator. The final protocol
shall be promulgated within 18 months after the en-
actment of such Act. The Administrator also shall
determine an appropriate approach and schedule for
ensuring that the national risk protocol remains
current with emerging science and relevant Agency
policy.
‘‘(7) FEDERAL AND STATE LAWS.—(A) A reme-
dial action shall be required to—
‘‘(i) comply with the substantive require-
ments of any promulgated standard, require-
ment, criterion, or limitation under any Fed-
eral, or more stringent State, environmental or
facility siting law that is applicable to the con-
duct or operation of the remedial action;
‘‘(ii) attain any promulgated protective
concentration levels applicable to determining
the level of cleanup for remedial actions con-
ducted under any State environmental law
where such levels are more stringent than those
established under subparagraph (C)(i) or the
concentration levels determined to be protective
for a given facility in accordance with the re-
quirements of paragraph (2); and