397
ability 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 appropriate amount
of any such premium, and such deter-
minations are committed to the Presi-
dent’s discretion. The President has
discretion to waive or reduce the pre-
mium payment for persons who dem-
onstrate an inability to pay such a
premium.
‘‘(F) The settlement is otherwise
acceptable to the United States.’’.
(2) Paragraph (3) is amended to read
as follows:
‘‘(3) DISCRETIONARY
COVENANTS.—For
settlements under this title for which
covenants under section 122(f)(1) are not
available, the President may, in his dis-
cretion, provide any person with a cov-
enant not to sue concerning any liability
to the United States under this title, if
the covenant not to sue is in the public
interest. Such covenants shall be subject
398
to the requirements of section 122(f)(5).
The President may include any condi-
tions in such covenant not to sue, includ-
ing the additional condition referred to
in paragraph (5). In determining whether
such conditions or covenants are in the
public interest, the President shall con-
sider the nature and scope of the commit-
ment by the settling party under the set-
tlement, the effectiveness and reliability
of the response action, the nature of the
risks 
remaining 
at 
the 
facility, 
the
strength of evidence, the likelihood of
cost recovery, the reliability of any re-
sponse action or actions to restore, re-
place, or acquire the equivalent of in-
jured natural resources, the extent to
which performance standards are in-
cluded in the order or decree, the extent
to which the technology used in the re-
sponse action is demonstrated to be effec-
tive, and any other factors relevant to the
protection of human health and the envi-
ronment.’’.
399
(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 strik-
ing ‘‘remedial’’ each place it appears and
inserting ‘‘response’’.
(5) Subparagraph (A) of paragraph (5)
(as so redesignated) is amended—
(A) by striking ‘‘remedial’’ and in-
serting ‘‘response’’;
(B) by striking ‘‘paragraph (2)’’ in
the 
first 
sentence 
and 
inserting
‘‘paragraph (1) or (2)’’;
(C) by striking ‘‘de minimis settle-
ments’’ and inserting ‘‘de minimis and
other expedited settlements pursuant
to subsection (g) of this section’’; and
(D) by striking ‘‘the President cer-
tifies under paragraph (3) that reme-
dial action has been completed at the
facility 
concerned’’, 
and 
inserting
‘‘that the response action that is the
subject of the settlement agreement is
selected’’.
400
(6) Subparagraph (B) of paragraph (5)
(as so redesignated) is amended—
(i) by striking ‘‘In extraor-
dinary circumstances, the’’ and
inserting ‘‘The’’;
(ii) by striking ‘‘those referred
to in paragraph (4) and’’;
(iii) 
by 
striking 
‘‘if 
other
terms,’’ and inserting ‘‘, if the
agreement containing the cov-
enant not to sue provides for pay-
ment of a premium to address
possible remedy failure or any re-
leases that may result from un-
known conditions, and if other
terms,’’; and
(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 in-
ability to pay such a premium.’’.
SEC. 412. EXPEDITED FINAL SETTLEMENTS.
Section 122 is amended as follows:
401
(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 fol-
lowing:
‘‘(g) EXPEDITED FINAL SETTLEMENT.—
‘‘(1) PARTIES
ELIGIBLE
FOR
EXPEDITED
SETTLEMENT.—The 
President 
shall, 
as
promptly as possible, offer to reach a
final administrative or judicial settle-
ment with potentially responsible parties
who, in the judgment of the President,
meet one or more of the following condi-
tions for eligibility for an expedited set-
tlement—
‘‘(A) The potentially responsible
party’s 
individual 
contribution 
of
hazardous substances at the facility
is de minimis. The contribution of
hazardous substance to a facility by a
potentially responsible party is de
minimis if both of the following con-
ditions are met:
‘‘(i) The potentially respon-
sible party’s volumetric contribu-
402
tion of materials containing haz-
ardous substances is minimal in
comparison to the total volu-
metric contributions of materials
containing hazardous substances
at the facility; such individual
contribution is presumed to be
minimal if it is one percent or less
of the total volumetric contribu-
tion at the facility, unless the Ad-
ministrator identifies a different
threshold based on site-specific
factors.
‘‘(ii) The potentially respon-
sible 
party’s 
hazardous 
sub-
stances 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 inserting after subparagraph (B) of
paragraph (1) the following:
‘‘(C) The potentially responsible
party’s liability is based solely on
403
paragraph (3) or (4) of section 107(a),
and the arrangement for disposal,
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 Administrator
may offer to settle the liability of gen-
erators and transporters of municipal
solid waste or sewage sludge whose
liability is limited pursuant to para-
graph (7) of section 107(a) for up to 10
percent of the total response costs at
the facility.
‘‘(D)(i) The potentially responsible
party is a natural person, a small
business, or a municipality and can
demonstrate to the United States an
inability or limited ability to pay re-
sponse costs. A party who enters into
a settlement pursuant to this sub-
paragraph shall be deemed to have
resolved its liability under this Act to
the United States for all matters ad-
dressed in the settlement.
404
‘‘(ii) For purposes of this subpara-
graph, the following provisions apply:
‘‘(I) In the case of a small busi-
ness, the President shall take into
consideration the ability to pay of
the business, if requested by the
business. The term ‘ability to pay’
means the President’s reasonable
expectation of the ability of the
small business to pay its total set-
tlement amount and still maintain
its 
basic 
business 
operations.
Such consideration shall include
the business’s overall financial
condition and demonstrable con-
straints on its ability to raise rev-
enues.
‘‘(II) Any business requesting
such consideration shall promptly
provide the President with all rel-
evant information needed to de-
termine the business’s ability to
pay.
‘‘(III) The business shall dem-
onstrate the amount of its ability
405
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 anal-
ysis that may be required to dem-
onstrate the business’s ability to
pay. The President, in his discre-
tion, may perform such analysis
for any other party or require
such other party to perform the
analysis.
‘‘(IV) If the President deter-
mines that a small business is un-
able to pay its total settlement
amount immediately, the Presi-
dent shall consider alternative
payment methods as may be nec-
essary or appropriate. The meth-
ods 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.
406
‘‘(iii) For purposes of this sub-
paragraph, in the case of a municipal
owner or operator, the President
shall consider, to the extent that in-
formation is provided by the munici-
pality, the following factors:
‘‘(I) the municipality’s general
obligation bond rating and infor-
mation about the most recent
bond issue for which the rating
was prepared;
‘‘(II) the amount of total avail-
able funds (other than dedicated
funds and State assistance pay-
ments for remediation of inactive
hazardous waste sites);
‘‘(III) the amount of total op-
erating revenues (other than obli-
gated or encumbered revenues);
‘‘(IV) the amount of total ex-
penses;
‘‘(V) the amounts of total debt
and debt service;
‘‘(VI) per capita income;
‘‘(VII) real property values;
407
‘‘(VIII) unemployment infor-
mation; and
‘‘(IX) population information.
‘‘(iv) A municipality may also sub-
mit for consideration by the Presi-
dent 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 obliga-
tions 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) A municipality may establish
an inability to pay through an affirm-
ative showing that such payment of
its liability under this Act would ei-
ther—
‘‘(I) create a substantial de-
monstrable risk that the munici-
pality would default on existing
408
debt obligations, be forced into
bankruptcy, be forced to dissolve,
or be forced to make budgetary
cutbacks that would substantially
reduce current levels of protec-
tion of public health and safety;
or
‘‘(II) necessitate a violation of
legal requirements or limitations
of general applicability concern-
ing the assumption and mainte-
nance of fiscal municipal obliga-
tions.
‘‘(vi) This subparagraph does not
limit or affect the President’s author-
ity to evaluate any person’s ability to
pay or to enter into settlements with
any person based on that person’s in-
ability to pay.’’.
(3) Paragraphs (2) and (3) of sub-
section (g) are amended to read as fol-
lows:
‘‘(2) BASIS
OF
DETERMINATION.—Any
person who enters into a settlement pur-
suant to this subsection shall provide any
409
information requested by the President
or by an allocator in accordance with sec-
tion 130(d)(2) 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 Presi-
dent’s determination as to the eligibility
of a party for settlement pursuant to this
section, nor the terms of the final settle-
ment, 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 ex-
plain the basis for that determination in
writing to any person who requests such
a settlement.
‘‘(3) ADDITIONAL FACTORS RELEVANT TO
SETTLEMENTS
WITH
MUNICIPALITIES.—In
any settlement with a municipality pur-
suant to this title, the President may take
additional equitable factors into account
in determining an appropriate settlement
amount, including the limited resources
410
available to that party, and any in-kind
services that the party may provide to
support the response action at the facil-
ity. In considering the value of in-kind
services, the President shall consider the
fair market value of those services.’’.
(4) Subsection (g) is further amend-
ed—
(A) in paragraph (4), by striking
‘‘$500,000’’ and inserting ‘‘$2,000,000’’;
and
(B) by striking paragraph (5).
(5) Subsection (h) is amended—
(A) by amending the heading to
read as follows: ‘‘AUTHORITY TO SETTLE
CLAIMS FOR FINES, CIVIL PENALTIES,
PUNITIVE DAMAGES, AND COST RECOV-
ERY.—’’;
(B) in paragraph (1)—
(i) in the first sentence, by
striking ‘‘costs incurred’’ and in-
serting ‘‘past and future costs in-
curred or that may be incurred’’;
(ii) in the first sentence, by in-
serting after ‘‘if the claim has not
411
been referred to the Department
of Justice for further action.’’ the
following: ‘‘The head of any de-
partment or agency with the au-
thority to seek fines, civil pen-
alties, or punitive damages under
this 
Act 
may 
consider, 
com-
promise, and settle claims for any
such fines, civil penalties, or pu-
nitive damages which may other-
wise be assessed in civil adminis-
trative or judicial proceedings if
the claim has not been referred to
the Department of Justice for fur-
ther 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 writ-
ten approval of the Attorney Gen-
eral.’’; and
(iii) in the second sentence, by
striking ‘‘$500,000 (excluding in-
terest), any claim referred to in
the preceding sentence’’ and in-
412
serting ‘‘$2,000,000 (excluding in-
terest), any claim for response
costs referred to in this sub-
section’’; and
(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 responsible parties
for which the President selects a reme-
dial action on or after February 3, 1994,
the Administrator shall initiate the allo-
cation process under this section. This
paragraph shall not apply to response ac-
tions selected prior to such date.
‘‘(2) 
PRE-INTRODUCTION
RODS.—For
each non-federally owned facility listed
on the National Priorities List involving 2
or more potentially responsible parties,
for any remedial action selected by the
413
President before February 3, 1994, the
Administrator shall initiate the allocation
process under this section, if requested to
do so by a potentially responsible party
which has resolved its liability to the
United States with respect to the reme-
dial action or which is performing the re-
medial action pursuant to an order is-
sued under section 106(a).
‘‘(3) OTHER FACILITIES.—The Adminis-
trator, as the Administrator deems appro-
priate, may initiate the allocation process
under this section for any facility other
than a facility referred to in paragraph
(1) or (2) involving 2 or more potentially
responsible parties.
‘‘(4) EXCLUDED FACILITIES.—The alloca-
tion process under this section shall not
apply to any of the following:
‘‘(A) A facility for which there has
been a final settlement, decree, or
order that determines all liability or
allocated shares of all potentially re-
sponsible parties.
414
‘‘(B) A facility at which all of the
potentially responsible parties are
liable or potentially liable as facility
owners or operators pursuant to sec-
tion 107(a) (1) or (2).
‘‘(5) MULTIPLE REMEDIAL ACTIONS.—An
allocation under this section, shall apply
to all remedial actions selected by the
President on or after February 3, 1994,
for a facility (but not to those remedial
actions described in paragraph (2)), un-
less the allocator determines that the al-
location should address only one or more
of such remedial actions.
‘‘(6) MULTIPLE FACILITIES.—Where ap-
propriate, the Administrator may initiate
a single allocation process under this sec-
tion for more than 1 facility.
‘‘(7) EFFECT OF ALLOCATION.—An allo-
cation performed pursuant to paragraph
(2) or (3) of this section shall not be con-
strued to require—
‘‘(A) payment of an orphan share
pursuant to this section; or
415
‘‘(B) the conferral of reimburse-
ment rights pursuant to this section.
‘‘(8) SETTLEMENT
OFFERS
AFTER
COM-
MENCEMENT
OF
LITIGATION.—The provi-
sions of this section shall not apply to
any offer of settlement made after expira-
tion of the moratorium period under sub-
section (b).
‘‘(b) MORATORIUM
ON COMMENCEMENT
OR
CONTINUATION OF SUITS.—
‘‘(1) MORATORIUM.—No person may as-
sert any claim for response costs pursu-
ant to section 107 of this Act or com-
mence any civil action seeking recovery
of any response costs in connection with
a response action for which an allocation
is required under subsection (a)(1) or (2),
or for which the Administrator has initi-
ated 
an 
allocation 
under 
subsection
(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 sec-
tion 107 of this Act or an action seeking
417
‘‘(B) The commencement of the al-
location process pursuant to this sec-
tion.
‘‘(c) COMMENCEMENT OF ALLOCATION.—
‘‘(1) RESPONSIBLE
PARTY
SEARCH.—At
all facilities subject to this section, the
Administrator shall, as soon as prac-
ticable, 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 authorities under sec-
tion 104. Any person may submit informa-
tion to the Administrator concerning any
potentially responsible party at the facil-
ity, and the Administrator shall consider
such information in carrying out the re-
sponsible party search.
‘‘(2) NOTIFICATION OF DE MINIMIS PAR-
TIES.—As soon as practicable after receipt
of sufficient information, but not more
than 12 months after the commencement
of the remedial investigation, the Admin-
istrator shall take each of the following
actions:
418
‘‘(A) The Administrator shall no-
tify any potentially responsible party
who the Administrator determines is
eligible for an expedited final settle-
ment in accordance with section
122(g)(1)(A) of its eligibility, based on
information available to the Adminis-
trator at the time the determination
is made. Any such information that is
not confidential shall, to the extent
practicable, be made available by the
Administrator to the party at the
time of the settlement offer.
‘‘(B) The Administrator shall sub-
mit 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 settle-
ment offer. If the settlement offer is
based in whole or in part on con-
419
fidential information, the Adminis-
trator shall so advise such party.
‘‘(3) PRELIMINARY
NOTICE
TO
OTHER
PARTIES.—As soon as practicable after re-
ceipt of sufficient information, but not
later than 18 months after commence-
ment of the remedial investigation, the
Administrator shall—
‘‘(A) notify any party not pre-
viously notified under paragraph (2)
who the Administrator determines is
eligible for an expedited final settle-
ment in accordance with section
122(g)(1)(A) of its eligibility, based on
information available to the Adminis-
trator at the time the determination
is made;
‘‘(B) issue a list of all potentially
responsible 
parties 
preliminarily
identified by the Administrator to all
such parties;
‘‘(C) notify the public, in accord-
ance with section 117(d), of the list of
potentially responsible parties identi-
420
fied pursuant to subparagraphs (A)
and (B) by the Administrator; and
‘‘(D) make available all responses
to the Administrator’s information re-
quests, as well as other relevant in-
formation concerning the facility and
potentially responsible parties, to the
notified parties, to the extent it is
available to the Administrator.
The Administrator shall not make avail-
able any privileged or confidential infor-
mation, except as otherwise authorized
by law. The Administrator shall take the
actions specified in this paragraph with-
in 9 months after the date of enactment
of this section for all facilities eligible for
allocation under subsection (a)(1) or
(a)(2) for which the responsible party
search required by a paragraph (1) was
substantially complete prior to the date
of the enactment of this section.
‘‘(4) STATUS OF PARTIES.—At the time
of proposing the list of potentially re-
sponsible parties under paragraph (3),
the Administrator shall—
421
‘‘(A) identify parties that are eligi-
ble for expedited settlement pursuant
to section 122(g);
‘‘(B) identify parties who are not
eligible for such expedited settle-
ment; or
‘‘(C) determine that there is insuf-
ficient 
information 
to 
ascertain
whether or not the party is entitled
to such expedited settlement.
‘‘(5) NOMINATION OF PARTIES.—(A) For
60 days after information has been made
available pursuant to paragraph (3), the
parties identified by the Administrator
and members of the affected community
shall have the opportunity to identify
and nominate additional potentially re-
sponsible parties or otherwise provide in-
formation relevant to the facility or such
potentially responsible parties. This pe-
riod may be extended by the Adminis-
trator for an additional 30 days upon re-
quest of any person.
‘‘(B) Any proposal for the addition of
any potentially responsible party with re-
422
spect to a facility shall be supported by a
statement demonstrating that there is an
adequate basis in law and fact to deter-
mine that the additional nominated party
is potentially 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 site. The nominated
party may submit to the Administrator
information relating to its inclusion as an
additional potentially responsible party
within 45 days of the receipt of such in-
formation.
‘‘(6) LIST OF ALLOCATION PARTIES.—(A)
Within 60 days after the end of the period
specified in paragraph (5)(A) for the pro-
posal of additional parties, the Adminis-
trator shall—
‘‘(i) issue a list of parties subject
to the allocation process (hereinafter
referred to in this section as the ‘allo-
cation parties’);
423
‘‘(ii) identify in writing, as to each
of the proposed additional parties,
which parties the Administrator has
determined, in the Administrator’s
sole discretion—
‘‘(I) to be eligible for expe-
dited settlement pursuant to sec-
tion 122(g),
‘‘(II) not to be eligible for such
expedited settlement, and
‘‘(III) for whom insufficient in-
formation 
exists 
to 
determine
whether or not the party is eligi-
ble for such expedited settlement;
and
‘‘(iii) identify (in writing sup-
ported by brief explanation) those
parties as to which the Administrator
has determined, in the Administra-
tor’s sole discretion, that there is an
inadequate basis in law or fact to de-
termine that the party is liable under
this Act.
The Administrator shall consider, when
making determinations under this sub-
424
paragraph, all available information pro-
vided pursuant to section 130(c)(5)(B).
For each party identified under clause
(iii), the Administrator shall further iden-
tify whether that party, if liable, would
be eligible for an expedited settlement.
‘‘(B) At the time of issuance of the list
of parties provided for in subparagraph
(A), the Administrator shall provide the
potentially responsible parties who re-
ceived notice under this paragraph with
a list of neutral parties who are not em-
ployees of the United States and who the
Administrator determines, in the Admin-
istrator’s sole discretion, are qualified to
perform an allocation at the facility.
‘‘(C) De minimis parties the Adminis-
trator identifies as potentially liable but
entitled to expedited 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
orphan share pursuant to subsection (h)),
unless that party fails to reach an agree-
425
ment 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 avail-
able to the Administrator, the determina-
tion shall have the following effect:
‘‘(i) With respect to a party that
the Administrator has determined to
be—
‘‘(I) exempt from liability pur-
suant 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 settle-
ment,
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 par-
ties, the Administrator’s determina-
426
tion shall be accorded deference by
the allocator. For such parties the al-
locator shall consider the Administra-
tor’s determination together with the
allocation factors listed in subsection
(h)(2).
‘‘(E) The Administrator’s determina-
tions for purposes of this subsection shall
not be subject to judicial review, nor
shall any determination or explanation
provided for purposes of the allocation be
admissible for any purpose in an action
commenced by the United States against
the party that is the subject of the deter-
mination or any other party.
‘‘(F) The allocator may assign a zero
share to any party the allocator deems
should receive such a share in consider-
ation of the allocation factors including
the Administrator’s determinations under
subparagraph (C).
‘‘(G) If a party is included in the allo-
cation pursuant to the nomination of a
potentially responsible party pursuant to
subsection (c)(5), but assigned a zero
427
share by the allocator, that party’s costs
of participating in the allocation (includ-
ing reasonable attorneys’ fees) shall be
borne by the party who proposed the ad-
dition 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 sub-
section (c), the Administrator shall submit a
written settlement offer to any party identi-
fied as a potentially responsible party pursu-
ant 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 addressed 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 settlement.
‘‘(2) The President shall not include any
premia pursuant to section 122(g) in a settle-
ment offer made pursuant to paragraph (1)
more than 60 days after the date the offer is
428
required to be made pursuant to paragraph
(1) to a party that is a small business, as de-
fined in section 101(47).
‘‘(3) If a party is a small business which
the President has determined is eligible for a
settlement pursuant to section 122(g)(1)(A),
and the party is not offered a settlement 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 re-
sponse actions at the facility for which the al-
location is being performed, unless the Presi-
dent determines that there is just cause for
the delay and such delay is due to factors out-
side the President’s control.
‘‘(e) SELECTION OF ALLOCATOR.—
‘‘(1) PROPOSAL
OF
ADDITIONAL
CAN-
DIDATES.—Any party identified by the Ad-
ministrator under subsection (c) may pro-
pose 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).
429
‘‘(2) SELECTION OF ALLOCATOR BY ALLO-
CATION PARTIES.—(A) The allocation par-
ties shall select an allocator from the list
of allocators proposed by the Adminis-
trator or under paragraph (1) by the fol-
lowing voting method with each alloca-
tion party having a single vote:
‘‘(i) Each allocation party, with
the Administrator voting for the iden-
tified but insolvent or defunct par-
ties, shall numerically rank the indi-
viduals on the final list of proposed
allocators, with a ranking of 1 indi-
cating first preference, and forward
its vote to the Administrator within
30 days of the issuance of the final
list of allocators pursuant to sub-
section (c)(6)(B).
‘‘(ii) The proposed allocator who
receives the lowest combined numeri-
cal score, taking into account all
votes submitted to the Administrator
pursuant to clause (i), and who
agrees to serve as allocator, shall be
determined to be the allocator.
430
‘‘(B) The Administrator may cast the
votes of identified but insolvent or de-
funct parties.
‘‘(3) PEREMPTORY STRIKE.—The Admin-
istrator may reject any allocator selected
by the allocation 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 numerical ranking in accordance with
this subsection.
‘‘(4) SELECTION OF ALLOCATOR BY EPA.—
If the allocation parties do not select an
allocator pursuant to this subsection
within 30 days after receipt of the list
provided under paragraph (2), the Ad-
ministrator shall select the allocator, ex-
cept that if the Administrator rejects 4 or
more allocators selected by the allocation
parties, the Administrator shall initiate a
new allocator selection process under
this section.
‘‘(f) CONTRACT.—Following selection of the
allocator, the Administrator shall enter into a
431
contract with the selected allocator for the
provision of allocation services, and imme-
diately make available all responses to infor-
mation requests, as well as other relevant in-
formation concerning the facility and poten-
tially responsible parties, to the allocator. The
Administrator has the authority to use the
procedures set forth in section 109(e) to ob-
tain 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 SET-
TLEMENT.—At any time prior to the issuance of
an allocation report as described in sub-
section (h), any group of potentially respon-
sible parties may submit to the allocator a pri-
vate allocation for the remedial action. If such
private allocation meets all of the following
criteria, the allocator shall promptly adopt it
as the allocation report:
‘‘(1) The private allocation is a bind-
ing allocation of 100 percent of the past,
432
present, and future recoverable costs of
the remedial action or operable unit.
‘‘(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 is a signatory to the pro-
posed private allocation.
‘‘(3) The signatories to the proposed
private allocation waive their contribu-
tion rights with respect to the remedial
action against all other potentially re-
sponsible parties at the facility.
‘‘(h) ALLOCATION DETERMINATION.—
‘‘(1) SETTLEMENT AND ALLOCATION RE-
PORT.—Following issuance of the final list
of allocation parties pursuant to sub-
section (c)(6)(A)(i), the allocator shall ini-
tiate and conduct an allocation process
that shall culminate in the issuance of a
written report, with a nonbinding, equi-
table allocation of the percentage shares
of responsibility of all allocation parties,
including the orphan share, for the facil-
433
ity, and provide such report to the alloca-
tion parties and the Administrator. The
allocator shall provide the report to the
allocation parties and the Administrator
within 180 days of the issuance of the list
of allocation parties pursuant to sub-
section (c)(6) or the date of the contract
for allocation service pursuant to sub-
section (f), whichever is later. Upon re-
quest, for good cause shown, the Admin-
istrator may grant the allocator addi-
tional time to complete the allocation, not
to exceed 90 days.
‘‘(2) FACTORS IN THE ALLOCATION.—The
allocator shall prepare a nonbinding, eq-
uitable allocation of percentage shares
for the facility based on the following fac-
tors:
‘‘(A) The amount of hazardous
substances contributed by each allo-
cation party.
‘‘(B) The degree of toxicity of haz-
ardous 
substances 
contributed 
by
each allocation party.
434
‘‘(C) The mobility of hazardous
substances contributed by each allo-
cation party.
‘‘(D) The degree of involvement of
each allocation party in the genera-
tion, transportation, treatment, stor-
age, or disposal of the hazardous sub-
stance. For the purpose of carrying
out the preceding sentence, the allo-
cator shall assign a lower share to
any person where liability or poten-
tial liability is based on a party’s sta-
tus as an owner or operator and
where the allocation party did not en-
gage in the actual disposal of greater
than a de minimis quantity of hazard-
ous substances at a facility.
‘‘(E) The degree of care exercised
by each allocation party with respect
to the hazardous substance, taking
into account the characteristics of
the hazardous substance.
‘‘(F) The cooperation of each allo-
cation party in contributing to the re-
sponse action and in providing com-
435
plete and timely information during
the allocation process.
‘‘(G) Such other factors that the
Administrator determines are appro-
priate 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
guidance shall not be deemed unlaw-
ful conduct or procedural error for
purposes of subsection (l) (2) or (3).
‘‘(3) CONDUCT
OF
ALLOCATION
PROC-
ESS.—The allocator shall conduct the allo-
cation process and render a decision
based solely on the provisions of this sec-
tion, including the allocation factors
specified in paragraph (2). Each party to
the allocation shall be afforded an oppor-
tunity to be heard (either orally or in
writing, at the allocator’s discretion), and
an opportunity to comment on a draft al-
436
location 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 facil-
ity is specifically attributable to an
orphan share. The orphan share shall
consist only of the following:
‘‘(i) 
Shares 
attributable 
to
hazardous substances that the al-
locator determines, on the basis
of information presented, to be
specifically attributable to identi-
fied but insolvent or defunct allo-
cation parties who are not affili-
ated with any viable allocation
party.
‘‘(ii) The difference between
the aggregate shares that the allo-
cator determines, on the basis of
the information presented, is spe-
cifically attributable to allocation
parties that are contributors of
437
municipal solid waste subject to
the 
limitations 
in 
section
107(a)(6), and the share actually
assumed by those parties in any
settlements 
with 
the 
United
States pursuant to section 122(g),
including the fair market value of
in-kind services provided by a
municipality.
‘‘(iii) The difference between
the aggregate share that the allo-
cator determines, on the basis of
information presented, to be spe-
cifically attributable to allocation
parties with a limited ability to
pay response costs and the share
actually assumed by those parties
in 
any 
settlements 
with 
the
United States pursuant to section
122(g).
‘‘(iv) Shares that the allocator
determines, on the basis of the in-
formation presented, are specifi-
cally attributable to parties that,
solely due to the operation of sub-
438
section (d)(3), have no liability
under this Act for the costs of re-
sponse actions at the facility for
which the allocation is being per-
formed.
‘‘(B) 
UNATTRIBUTABLE
SHARES.—
Shares attributable to hazardous sub-
stances that the allocator cannot at-
tribute to any identified party shall
be distributed among the allocation
parties, including the orphan share.
‘‘(i) 
ANSWERS
AND
CERTIFICATIONS
TO
ALLOCATOR’S INFORMATION REQUESTS.—
‘‘(1) SUBPOENAS AND INFORMATION RE-
QUESTS.—Where necessary to assist in de-
termining the allocation of shares, the al-
locator may request information or docu-
ments from any allocation party in ac-
cordance with paragraphs (2) or (5) of
section 104(e), and require by subpoena
the attendance of persons or the produc-
tion of documents, or other information
in accordance with section 104(e)(7). Any
allocation party to whom a request is di-
rected shall include in the response a cer-
439
tification by a responsible representative
or authorized representative that satis-
fies the requirement of section 104(e)(3).
The allocator may also request the Ad-
ministrator to utilize the authorities of
paragraph (2) and to exercise any infor-
mation-gathering authority of the Admin-
istrator under this Act.
‘‘(2) POWERS
OF
THE
ALLOCATOR.—In
addition to the information-gathering au-
thority set forth in paragraph (1), the al-
locator shall have the authority to sched-
ule meetings and require the attendance
of allocation parties at such meetings; to
require that allocation parties wishing to
present similar legal or factual positions
consolidate their presentations; to obtain
or employ support services, including
secretarial and clerical services, com-
puter support services, and legal and in-
vestigative services; and to take any
other actions necessary to conduct a fair,
efficient, and impartial allocation proc-
ess.
‘‘(j) CIVIL AND CRIMINAL PENALTIES.—
440
‘‘(1) CIVIL PENALTIES.—Where the allo-
cator issues an administrative subpoena
or information request pursuant to sub-
section (i), a party who unreasonably
fails to comply with the subpoena or re-
quest shall be subject to a civil penalty
not to exceed $25,000 for each day of non-
compliance.
‘‘(2) 
ENFORCEMENT.—The 
allocator
may seek enforcement of an administra-
tive subpoena or information request
pursuant to subsection (i)(1), and shall
seek such enforcement by requesting that
the Attorney General commence an ac-
tion to enforce the subpoena or request.
The Attorney General, within 30 days
after receiving such request from the al-
locator, shall—
‘‘(A) notify the allocator that the
Attorney General will commence an
action to enforce the subpoena or in-
formation request;
‘‘(B) notify the allocator that the
Attorney General will not seek en-
forcement of the subpoena or request
441
because the subpoena or request is
barred by law or would result in an-
noyance, embarrassment, oppression,
or undue burden or expense to the
party to whom it was issued; or
‘‘(C) notify the allocator that the
Attorney General has insufficient in-
formation on which to determine
whether an enforcement action is ap-
propriate.
‘‘(3) FAILURE OF ATTORNEY GENERAL TO
RESPOND.—If the Attorney General fails to
provide any response to the allocator
within 30 days of a request for enforce-
ment of a subpoena or information re-
quest, the allocator may retain counsel to
commence a civil action to enforce the
subpoena or information request.
‘‘(4) PENALTY.—If the Attorney Gen-
eral or allocator prevails in an action to
enforce an allocator’s subpoena or infor-
mation 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
442
such party to pay the reasonable ex-
penses, including attorney’s fees, caused
by the failure to comply, unless the court
finds that the failure was substantially
justified or that other circumstances
make an award of expenses unjust.
‘‘(5) 
CRIMINAL.—Any 
person 
who
knowingly 
makes 
any 
false 
material
statement or representation in the re-
sponse to an allocator’s information re-
quest or subpoena issued pursuant to
subsection (i) shall be deemed to have
made a false statement on a matter with-
in the jurisdiction of the United States
within the meaning of section 1001 of
title 18, United States Code.
‘‘(k) DOCUMENT REPOSITORY; CONFIDENTIAL-
ITY.—
‘‘(1) DOCUMENT REPOSITORY.—The allo-
cator shall establish and maintain a doc-
ument repository containing copies of all
documents and information—
‘‘(A) provided by the Adminis-
trator pursuant to this section,
449
shall select a new allocator pursuant to sub-
section (e) to perform, on an expedited basis,
a new allocation based on the same record
available to the first allocator. The morato-
rium on commencement of litigation and toll-
ing of statutes of limitation set forth in sub-
section (b) shall be extended until 90 days
after the issuance of the second allocation re-
port. If the United States rejects the second
allocation the President may, following the
expiration of the moratorium on commence-
ment of litigation, commence an action under
section 107.
‘‘(n) 
NEW
INFORMATION.—Any 
settling
party, including the United States, may seek
a new allocation pursuant to subsection (h),
where that party presents clear and convinc-
ing information or the United States other-
wise determines on the basis of clear and con-
vincing information that—
‘‘(1) the allocator did not have infor-
mation concerning 35 percent or more of
the materials containing hazardous sub-
stances at the facility, and that this infor-
mation has been discovered subsequent