146
‘‘(J) Restructuring, renegotiating, or oth-
erwise agreeing to alter the terms and condi-
tions of the extension of credit or security inter-
est or exercising forbearance.
‘‘(K) Exercising other remedies that may
be available under applicable law for the breach
of any term or condition of the extension of
credit or security agreement.
‘‘(L) Holding legal or equitable title ac-
quired by a security interest holder through
foreclosure or its equivalents primarily to pro-
tect a security interest, provided that the holder
undertakes to sell, re-lease, or otherwise divest
the property in a reasonably expeditious man-
ner on commercially reasonable terms, taking
into account market conditions and legal and
regulatory requirements.
‘‘(M) Conducting or directing another to
conduct a response action under section
107(d)(1), under the direction of an on-scene
coordinator or pursuant to a State plan under
section 114(e) or a State program under sub-
title K of the Solid Waste Disposal Act.
‘‘(3) SECURITY INTEREST.—The term ‘security
interest’, as used in such section 101(20), includes
147
rights under a mortgage, deed of trust, assignment,
judgment, lien, pledge, security agreement, factoring
agreement, lease, or any other right accruing to per-
son to secure the repayment of money, the perform-
ance of a duty, or some other obligation.’’.
(2) Section 101(20) of such Act is amended by add-
ing before the period at the end of the last sentence in
subparagraph (A) the following: ‘‘, as specified in section
107(o)’’.
(b) FIDUCIARY LIABILITY.—Section 107 is further
amended by adding at the end the following new sub-
sections:
‘‘(p) LIABILITY OF FIDUCIARIES.—
‘‘(1) EXCLUSION OF FIDUCIARY FROM OWNER
OR OPERATOR.—For purposes of this Act:
‘‘(A) The term ‘owner or operator’, as used
in section 101(20), does not include a fiduciary
who holds legal title to, is the mortgagee or se-
cured party with respect to, controls, or man-
ages, directly or indirectly, any facility or vessel
for purposes of administering an estate or trust
of which such facility or vessel is a part.
‘‘(B) The term ‘fiduciary’ does not include
any person who had a role in establishing a
trust, estate, or fiduciary relationship, and such
148
trust, estate, or fiduciary relationship has no
objectively reasonable or substantial purpose
apart from the avoidance or limitation of liabil-
ity under this Act. The term means a person
who is acting in any of the following representa-
tive capacities:
‘‘(i) An executor or administrator of
an estate, including a voluntary executor
or a voluntary administrator.
‘‘(ii) A guardian.
‘‘(iii) A conservator.
‘‘(iv) A trustee under a will under
which the trustee takes title to, or other-
wise controls or manages, property for the
purpose of protecting or conserving such
property under the ordinary rules applied
in State courts.
‘‘(v) A court-appointed receiver.
‘‘(vi) A trustee appointed in proceed-
ings under Federal bankruptcy laws.
‘‘(vii) An assignee or a trustee acting
under an assignment made for the benefit
of creditors.
‘‘(viii) A trustee, or any successor
thereto, pursuant to an indenture agree-
149
ment, trust agreement, lease, or similar fi-
nancing agreement, for debt securities, cer-
tificates of interest of participation in any
such debt securities, or other forms of in-
debtedness as to which it is not, in its ca-
pacity as trustee, the lender.
‘‘(C) A person acts in a ‘fiduciary capacity’
with respect to property if the person holds title
to such property, or otherwise has control of or
an interest in such property, pursuant to the
exercise of such person’s responsibilities as a fi-
duciary.
‘‘(2) AMOUNT OF LIABILITY.—The liability of a
fiduciary that is liable under any other provision of
this Act for the release or threatened release of a
hazardous substance at, from, or in connection with
property held in a fiduciary capacity, may not exceed
the assets held in such fiduciary capacity that are
available to indemnify the fiduciary.
‘‘(3) EXEMPTION.—Except as provided in para-
graph (4), a fiduciary shall not be liable in its indi-
vidual capacity under this section.
‘‘(4) EXCEPTIONS.—Nothing in this subsection
may be construed as preventing claims under this
Act against—
150
‘‘(A) the assets of the estate or trust ad-
ministered by a fiduciary; or
‘‘(B) non-employee agents or independent
contractors retained by a fiduciary.
‘‘(5) 
NEGLIGENCE
OR
INTENTIONAL
MIS-
CONDUCT.—Nothing in this subsection may be con-
strued as preventing claims under this Act against
a fiduciary in its individual capacity whose negligent
acts or intentional misconduct caused a release or
threatened release of hazardous substances at a fa-
cility or vessel.
‘‘(6) SAFE HARBOR.—A fiduciary shall not be
liable in its individual capacity under this Act—
‘‘(A) for conducting or directing another to
conduct a response action under section
107(d)(1), under the direction of an on-scene
coordinator or pursuant to a State plan under
section 114(e) or a State program under sub-
title K of the Solid Waste Disposal Act;
‘‘(B) for undertaking or directing another
to undertake any other lawful means of ad-
dressing hazardous substances in connection
with the property;
‘‘(C) for terminating the fiduciary relation-
ship;
151
‘‘(D) for including in the terms of the fidu-
ciary agreement covenants, warranties, or other
terms and conditions that relate to compliance
with environmental laws, or monitoring or en-
forcing such terms;
‘‘(E) for monitoring or undertaking inspec-
tions of the property;
‘‘(F) for providing financial or other advice
or counseling to other parties to the fiduciary
relationship, including the settler or beneficiary;
‘‘(G) for restructuring, renegotiating, or
otherwise altering the terms and conditions of
the fiduciary relationship;
‘‘(H) for contamination that occurred be-
fore the fiduciary’s period of service began; or
‘‘(I) for declining to take any of the ac-
tions described in subparagraphs (B) through
(G).
‘‘(q) LIABILITY LIMITATIONS.—
‘‘(1) ACTUAL BENEFIT.—The liability of a lend-
er that is liable under any other provision of this Act
for the release or threatened release of a hazardous
substance at, from, or in connection with property—
‘‘(A) acquired through foreclosure;
152
‘‘(B) subject to a security interest held by
such lender;
‘‘(C) held by a lessor pursuant to the
terms of an extension of credit; or
‘‘(D) subject to financial control or finan-
cial oversight pursuant to the terms of an ex-
tension of credit;
shall be limited to the actual benefit conferred on
such lender by a removal, remedial, or other re-
sponse action undertaken by another person.
‘‘(2) COMPUTATION OF ACTUAL BENEFIT.—For
purposes of this section, the actual benefit conferred
on a lender by a removal, remedial, or other re-
sponse action shall be equal to the net gain, if any,
realized by such lender due to such action. For pur-
poses of this subsection, the ‘net gain’ shall not ex-
ceed the amount realized by the lender on the sale
of property less acquisition, holding, and disposition
costs.
‘‘(3) EXCLUSION.—Notwithstanding paragraph
(1), but subject to the provisions of section 107(d),
a lender that directly caused or contributed to the
release of a hazardous substance may be liable for
a response action pertaining to that release.
153
‘‘(4) DEFINITIONS.—For purposes of this Act,
the following definitions shall apply:
‘‘(A) 
PROPERTY
ACQUIRED
THROUGH
FORECLOSURE.—
‘‘(i) IN GENERAL.—The term ‘prop-
erty acquired through foreclosure’ means
property acquired, or the act of acquiring
property, from a nonaffiliated party by a
lender—
‘‘(I) through purchase at sales
under judgment or decree, power of
sales, nonjudicial foreclosure sales, or
from a trustee, deed in lieu of fore-
closure, or similar conveyance, or
through repossession, if such property
was security for an extension of credit
previously contracted;
‘‘(II) through conveyance pursu-
ant to an extension of credit pre-
viously contracted, including the ter-
mination of a lease agreement; or
‘‘(III) through any other formal
or informal manner by which the lend-
er temporarily acquires, for subse-
154
quent disposition, possession of collat-
eral in order to protect its interest.
‘‘(ii) EXCLUSION.—Property is not ac-
quired through foreclosure if the lender
does not seek to sell or otherwise divest
such property in a reasonably expeditious
manner, on commercially reasonable terms,
taking into account market conditions and
legal and regulatory requirements.
‘‘(B) 
LENDER.—The 
term 
‘lender’
means—
‘‘(i) a person that makes a bona fide
extension of credit to, or takes a security
interest from, another party;
‘‘(ii) the Federal National Mortgage
Association, the Federal Home Loan Mort-
gage Corporation, the Federal Agricultural
Mortgage Corporation, or other entity that
in a bona fide manner is engaged in the
business of buying or selling loans or inter-
ests therein.
‘‘(iii) any person engaged in the busi-
ness of insuring or guaranteeing against a
default in the repayment of an extension of
credit, or acting as a surety with respect to
155
an extension of credit, to another party;
and
‘‘(iv) any person regularly engaged in
the business of providing title insurance
who acquires the property as a result of
assignment or conveyance in the course of
underwriting claims and claims settlement.
‘‘(C) EXTENSIONS OF CREDIT.—The term
‘extension of credit’ includes a lease finance
transaction—
‘‘(i) in which the lessor does not ini-
tially select the leased property and does
not during the lease term control the daily
operations or maintenance of the property;
or
‘‘(ii) that conforms to any regulations
issued by the appropriate Federal banking
agency (as defined in section 3 of the Fed-
eral Deposit Insurance Act) or the appro-
priate State banking regulatory authority.
‘‘(D) FORECLOSURE; 
FORECLOSE.—The
terms ‘foreclosure’ and ‘foreclose’ mean, respec-
tively, acquiring, and to acquire, a vessel or fa-
cility through—
156
‘‘(i) purchase at sale under a judg-
ment or decree, a power of sale, a
nonjudicial foreclosure sale, or from a
trustee, deed in lieu of foreclosure, or simi-
lar conveyance, or through repossession, if
such vessel or facility was security for an
extension of credit previously contracted;
‘‘(ii) conveyance pursuant to an exten-
sion of credit previously contracted, includ-
ing the termination of a lease agreement;
or
‘‘(iii) any other formal or informal
manner by which the person acquires, for
subsequent disposition, possession of collat-
eral in order to protect the security inter-
est of the person.–
‘‘(r) SAVINGS CLAUSE.—Nothing in subsections (o),
(p), and (q) (relating to lender and fiduciary liability) shall
diminish the rights or immunities or other defenses that
are available under this section to any party subject to
the provisions of those subsections.’’.
SEC. 303. INNOCENT LANDOWNERS.
Section 107, as amended by section 302, is further
amended by adding at the end the following new sub-
section:
157
‘‘(s) INNOCENT LANDOWNERS.—
‘‘(1) CONDUCT
OF
ENVIRONMENTAL
ASSESS-
MENT.— A person who has acquired real property
shall have made all appropriate inquiry within the
meaning of subparagraph (B) of section 101(35) if
he establishes that, within 180 days prior to the
time of acquisition, an environmental site assess-
ment of the real property was conducted which
meets the requirements of this subparagraph.
‘‘(2) DEFINITION OF ENVIRONMENTAL SITE AS-
SESSMENT.—For purposes of this subsection, the
term ‘environmental site assessment’ means an as-
sessment conducted in accordance with the stand-
ards set forth in the American Society for Testing
and Materials (ASTM) Standard E1527-94, titled
‘Standard Practice for Environmental Site Assess-
ments: Phase I Environmental Site Assessment
Process’ or with alternative standards issued by rule
by the Administrator or promulgated or developed
by others and designated by rule by the Adminis-
trator. Before issuing or designating alternative
standards, the Administrator shall first conduct a
study of commercial and industrial practices con-
cerning environmental site assessments in the trans-
fer of real property in the United States. Any such
158
standards issued or designated by the Administrator
shall also be deemed to constitute commercially rea-
sonable and generally accepted standards and prac-
tices for purposes of this paragraph. In issuing or
designating any such standards, the Administrator
shall consider requirements governing each of the
following:
‘‘(A) Interviews of owners, operators, and
occupants of the property to determine informa-
tion regarding the potential for contamination.
‘‘(B) Review of historical sources as nec-
essary to determine previous uses and occupan-
cies of the property since the property was first
developed. For purposes of this subclause, the
term ‘historical sources’ means any of the fol-
lowing, if they are reasonably ascertainable: re-
corded chain of title documents regarding the
real property, including all deeds, easements,
leases, restrictions, and covenants, aerial photo-
graphs, fire insurance maps, property tax files,
USGS 7.5 minutes topographic maps, local
street directories, building department records,
zoning/land use records, and any other sources
that identify past uses and occupancies of the
property.
159
‘‘(C) Determination of the existence of re-
corded environmental cleanup liens against the
real property which have arisen pursuant to
Federal, State, or local statutes.
‘‘(D) Review of reasonably ascertainable
Federal, State, and local government records of
sites or facilities that are likely to cause or con-
tribute to contamination at the real property,
including, as appropriate, investigation reports
for such sites or facilities; records of activities
likely to cause or contribute to contamination at
the real property, including landfill and other
disposal location records, underground storage
tank records, hazardous waste handler and gen-
erator records and spill reporting records; and
such other reasonably ascertainable Federal,
State, and local government environmental
records which could reflect incidents or activi-
ties which are likely to cause or contribute to
contamination at the real property.
‘‘(E) A visual site inspection of the real
property and all facilities and improvements on
the real property and a visual inspection of im-
mediately adjacent properties, including an in-
vestigation of any hazardous substance use,
160
storage, treatment, and disposal practices on
the property.
‘‘(F) Any specialized knowledge or experi-
ence on the part of the defendant.
‘‘(G) The relationship of the purchase
price 
to 
the 
value 
of 
the 
property 
if
uncontaminated.
‘‘(H) Commonly known or reasonably as-
certainable information about the property.
‘‘(I) The obviousness of the presence or
likely presence of contamination at the prop-
erty, and the ability to detect such contamina-
tion by appropriate investigation.
A record shall be considered to be ‘reasonably ascer-
tainable’ for purposes of this paragraph if a copy or
reasonable facsimile of the record is publicly avail-
able by request (within reasonable time and cost
constraints) and the record is practically reviewable.
‘‘(3) MAINTENANCE
OF
INFORMATION.—No
presumption shall arise under paragraph (1) unless
the defendant has maintained a compilation of the
information reviewed and gathered in the course of
the environmental site assessment.
‘‘(4) DEFINITION
OF
CONTAMINATION.—For
the purposes of this subsection and section 101(35),
161
the term ‘contamination’ means an existing release,
a past release, or the material threat of a release of
a hazardous substance, other than de minimis condi-
tions that generally do not present a material risk
of harm to public health or welfare or the environ-
ment.’’.
(b) CROSS REFERENCE.—Section 101(35)(B) (42
U.S.C. 9601(35)(B)) is amended by inserting after ‘‘all
appropriate inquiry’’ the following: ‘‘(as specified in sec-
tion 107(s))’’.
SEC. 304. LIMITATION ON FEDERAL ENFORCEMENT AC-
TIONS UNDER CERCLA FOR STATES WITH AP-
PROVED REMEDIAL ACTION PROGRAMS.
Section 114 is amended by adding at the end the fol-
lowing new subsection:
‘‘(e) FACILITIES IN STATES WITH APPROVED REME-
DIAL ACTION PROGRAMS.—
‘‘(1) ENFORCEMENT PROHIBITION.—
‘‘(A) 
RELEASES
SUBJECT
TO
STATE
PLANS.—For any facility at which there is a re-
lease or threatened release of hazardous sub-
stances subject to a State remedial action plan
adopted under a State program approved as
provided in this subsection, neither the Presi-
dent nor any other person may use any author-
162
ity of this Act to take a new administrative or
judicial enforcement action, or to bring a pri-
vate civil action, against any person regarding
any matter that is within the scope of such
plan.
‘‘(B) RELEASES NOT CURRENTLY SUBJECT
TO STATE PLANS.—For any facility at which
there is a release or threatened release of haz-
ardous substances that is not subject to a State
remedial action plan in a State with an ap-
proved program, the President shall provide no-
tice to the State within 48 hours after issuing
any order under section 106(a) addressing such
release or threatened release. Such an order in
an approved State shall cease to have any force
and effect 90 days after issuance unless the
State concurs in the continuation of such order.
‘‘(C) COST
OR
DAMAGE
RECOVERY
AC-
TIONS.—No action brought by a State or In-
dian tribe for the recovery of costs or damages
under section 107 shall be treated as an admin-
istrative or judicial enforcement action or a pri-
vate civil action for purposes of subparagraph
(A).
163
‘‘(2) STATE
REMEDIAL
ACTION
PROGRAMS.—
Any State may establish and submit to the Adminis-
trator for approval a remedial action program to
carry out remedial action plans pursuant to State
law with respect to releases or threatened releases of
hazardous substances at any category or categories
of facilities.
‘‘(3) RELATIONSHIP TO SUBTITLE K.—In the
case of any remedial action program under subtitle
K of the Solid Waste Disposal Act for hazardous
substances covered by an authorized State program
under such subtitle, the authorization of such pro-
gram shall be treated as the approval of a program
under paragraph (2) of this subsection with respect
to such substances.
‘‘(4) APPROVAL AND DISAPPROVAL OF APPLICA-
TION.—
‘‘(A) IN GENERAL.—On the last day of the
60-day period beginning on the date the Admin-
istrator receives an application made in accord-
ance with paragraph (2), the application is
deemed to be approved unless within such 60-
day period the Administrator disapproves the
application. The Administrator may disapprove
the application only if the Administrator finds
164
that the State does not have the legal authority
and the financial and personnel resources, orga-
nization, and expertise to carry out such reme-
dial action program. The Administrator may
not place any terms or conditions on an author-
ization made pursuant to this section.
‘‘(B) EXPLANATION AND RESUBMITTAL.—
If the Administrator disapproves an application
by making one of the findings specified in sub-
paragraph (A), the Administrator shall notify
the Governor in writing of the disapproval and
explain the basis for such finding within 10
days after making such finding but in no event
later than 60 days after receiving the applica-
tion. A notification under this subparagraph is
final agency action for purposes of judicial re-
view. A State may submit a revised application
any time after receiving notice of disapproval.
‘‘(5) WITHDRAWAL OF APPROVAL.—If the Ad-
ministrator finds that a State does not meet the re-
quirements for an approval of a program under this
subsection, the Administrator may withdraw the ap-
proval after providing notice and an opportunity to
correct deficiencies. The Administrator shall notify a
State in writing prior to withdrawing approval. If
165
the State has not addressed the deficiencies listed in
the Administrator’s notification within 90 days after
receiving the notification, the approval may be with-
drawn.’’.
‘‘(6) DEFINITION.—The term ‘remedial action
plan’ means a document, or portion of a document,
including any order, permit, or agreement, that is
entered into with, or subject to the approval and
oversight of a State with an approved program
under this subsection which describes—
‘‘(A) the hazardous substances being man-
aged;
‘‘(B) the manner in which the substance
will be managed; and
‘‘(C) the schedule for implementation.’’.
SEC. 305. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.
(a) LIABILITY.—Section 107(n), as added by section
203, is amended by redesignating paragraph (11) as para-
graph (12) and by adding after paragraph (10) the follow-
ing new paragraph:
‘‘(11) BONA FIDE PROSPECTIVE PURCHASER.—
(A) Notwithstanding paragraphs (1) through (4) of
subsection (a), a person who does not impede the
performance of a response action or natural resource
restoration at a facility shall not be liable to the ex-
166
tent liability at such facility is based solely on para-
graph (1) of subsection (a) for a release or threat
of release from the facility, and the person is a bona
fide prospective purchaser of the facility.
‘‘(B) For purposes of this paragraph, the term
‘bona fide prospective purchaser’ means a person
who acquires ownership of a facility after the date
of enactment of the Reform of Superfund Act of
1995, or a tenant of such a person, who can estab-
lish each of the following by a preponderance of the
evidence:
‘‘(i) All active disposal of hazardous sub-
stances at the facility occurred before that per-
son acquired the facility.
‘‘(ii) The person made all appropriate in-
quiry into the previous ownership and uses of
the facility and its real property in accordance
with generally accepted commercial and cus-
tomary standards and practices. Standards de-
scribed in section 107(s)(2) (relating to inno-
cent landowners) shall satisfy the requirements
of this subparagraph. In the case of property
for residential or other similar use, purchased
by a nongovernmental or noncommercial entity,
a site inspection and title search that reveal no
167
basis for further investigation satisfy the re-
quirements of this subparagraph.
‘‘(iii) The person provided all legally re-
quired notices with respect to the discovery or
release of any hazardous substances at the fa-
cility.
‘‘(iv) The person exercised appropriate
care with respect to hazardous substances
found at the facility by taking reasonable steps
to stop on-going releases, prevent threatened
future releases of hazardous substances, and
prevent or limit human or natural resource ex-
posure to hazardous substances previously re-
leased into the environment.
‘‘(v) The 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.
‘‘(vi) The person is not affiliated with any
other person liable for response costs at the fa-
cility, through any direct or indirect familial re-
lationship, or any contractual, corporate, or fi-
168
nancial relationship other than that created by
the instruments by which title to the facility is
conveyed or financed.’’.
(b) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—Section 107, as amended by section 303, is fur-
ther amended by inserting after subsection (s) the follow-
ing new subsection:
‘‘(t) 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 section 107(n)(11), 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
169
‘‘(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 environmental assessment gives the bona fide
prospective purchaser no knowledge or reason to know of
the release of hazardous substances.’’.
TITLE IV—NATURAL RESOURCE
DAMAGES
Sec. 401. Natural resource damages.
SEC. 401. NATURAL RESOURCE DAMAGES.
(a) IN GENERAL.—Section 107(a)(4)(C) is amended
to read as follows:
170
‘‘(C) damages for measurable and ecologically
significant injury to, destruction of, or loss of natu-
ral resources, including the reasonable costs of as-
sessing such injury, destruction, or loss, caused by
an actual release, and’’.
(b) GENERAL LIMITATIONS ON LIABILITY.—
(1) IN GENERAL.—Section 107(c) is amended
as follows:
(A) By striking ‘‘(c)’’ and inserting ‘‘(c)
LIMITATIONS ON LIABILITY.—’’.
(B) By aligning paragraph (1) as a para-
graph below the heading for subsection (c) (as
added by subparagraph (A), by moving the
margin of such paragraph 2 ems to the right,
by inserting ‘‘IN GENERAL.—’’ after ‘‘(1)’’, and
by moving the margins of subparagraphs (A),
(B), and (C) of that paragraph 2 ems to the
right.
(C) By amending subparagraph (D) of
paragraph (1) to read as follows:
‘‘(D) for any incineration vessel the total
of all costs of response plus $50,000,000 for
any damages under this title.’’.
(D) In paragraph (2), by striking ‘‘Not-
withstanding the limitations in paragraph (1)’’
171
and inserting ‘‘EXCEPTIONS FOR WILLFUL MIS-
CONDUCT AND FAILURE TO COOPERATE.—Not-
withstanding the limitations in paragraphs (1)
and (4)’’ and by striking ‘‘or willful neg-
ligence’’.
(E) In paragraph (3), by inserting ‘‘PUNI-
TIVE DAMAGES.—’’ before ‘‘If any’’.
(F) By moving the margins of paragraphs
(2) and (3) 2 ems to the right.
(G) By adding the following new para-
graph at the end thereof:
‘‘(4) NATURAL RESOURCE DAMAGE LIMITATION
FOR FACILITIES.—Except as provided in paragraphs
(1) and (2), the aggregate liability of all responsible
parties for damages under subsection (a)(4)(C)
caused by the cumulative releases from all facilities
shall not exceed $50,000,000 for the following:
‘‘(A) Any area of contamination listed
under section 105(a)(8)(B).
‘‘(B) The entire contiguous area of con-
tamination, in the case of any area not listed
under section 105(a)(8)(B).’’.
(c) NATURAL RESOURCE LIABILITY.—Section 107(f)
is amended to read as follows:
‘‘(f) NATURAL RESOURCE LIABILITY.—
172
‘‘(1) DEFINITIONS.—For purposes of this sub-
section:
‘‘(A) RESTORATION.— The term ‘restora-
tion’ means rehabilitation, natural recovery, or
replacement of an injured, destroyed, or lost
natural resource, or acquisition of a substitute
or alternative resource of similar type with a
reasonable proximity to the injured, destroyed
or lost natural resource, to reestablish the
measurable and ecologically significant func-
tions, including public use, that such natural
resource would have provided to the public
under the baseline condition.
‘‘(B) REASONABLE
RESTORATION
MEAS-
URES.—The term ‘reasonable restoration meas-
ures’ means those restoration measures that are
cost-effective, cost-reasonable, and achieve res-
toration in a timely manner.
‘‘(C) COST-EFFECTIVE.—The term ‘cost-
effective’ means the least costly of two or more
restoration alternatives or lost use replacement
or acquisition alternatives which provide the
same or a similar level of services to the public.
‘‘(D) COST-REASONABLE.—The term ‘cost-
reasonable’ means that the costs of a restora-
173
tion alternative or the costs of a lost use re-
placement or acquisition alternative do not ex-
ceed the value of the services that will be pro-
vided to the public by the selected alternative.
Cost-reasonableness shall be based upon a de-
termination of the incremental costs and the in-
cremental benefits of alternatives for reestab-
lishing various degrees of services up to base-
line.
‘‘(E) TIMELY.—The term ‘timely’ means
the shortest period of time necessary to meet
restoration requirements that takes into ac-
count both cost-effective and cost-reasonable
criteria.
‘‘(2) IN GENERAL.—(A) In the case of a meas-
urable and ecologically significant injury to, destruc-
tion of, or loss of natural resources under subpara-
graph (C) of subsection (a), liability shall be—
‘‘(i) to the United States Government for
any natural resources that are owned or held in
trust by the United States Government or that
are selected for transfer (but not transferred as
of the date of the injury, destruction, or loss)
to an Alaska Native Corporation as part of its
acreage entitlement under the Alaska Native
174
Claims Settlement Act (43 U.S.C. 1601 et
seq.);
‘‘(ii) to any State for natural resources
within the State that are owned, managed, or
held in trust by such State or appertaining to
an interstate compact to which such State is a
signatory; and
‘‘(iii) to any Indian tribe for natural re-
sources that are owned, managed, or held in
trust by or appertaining to such tribe or that
are owned by a member of such tribe if such re-
sources are subject to a trust restriction on
alienation.
‘‘(B) Sums recovered by the United States Gov-
ernment as trustee under this subsection shall be re-
tained by the trustee, without further appropria-
tions, for use only for reasonable restoration meas-
ures for such natural resources. Sums recovered by
a State or Indian tribe as trustee under this sub-
section shall be available for use only for reasonable
restoration measures for such natural resources by
the State or Indian tribe.
‘‘(3) CONDITIONS.—(A) The measure of dam-
ages in any action under subparagraph (C) of sub-
section (a) shall be limited to the costs of reasonable
175
restoration, the costs of reasonable assessments of
damages, and the value of lost public use of the
services provided by the injured natural resources.
‘‘(B) The value of lost public use of the services
provided by injured natural resources shall be lim-
ited to the cost of replacement of the lost services
with, or the acquisition of, similar services provided
by natural resources. The value of public use lost be-
fore December 11, 1980, shall not be recoverable. In
determining the value of lost public use, only com-
mitted uses may be used to measure the change
from the baseline condition that resulted from injury
to the natural resource. The baseline condition
means the condition or conditions that would have
existed had the release or releases of a hazardous
substance or substances that caused the injury, dis-
tribution, or loss not occurred.
‘‘(C) There shall be no recovery under subpara-
graph (C) of subsection (a) for any impairment of
nonuse values.
‘‘(D) There shall be no double recovery under
subparagraph (C) of subsection (a) for injury to, de-
struction of, or loss of natural resources, whether for
damages, natural resource damage response costs, or
176
otherwise, including assessment costs, under this Act
or any other law.
‘‘(E) No liability to the United States or State
or Indian tribe shall be imposed under subparagraph
(C) of subsection (a) where the party sought to be
charged has demonstrated that—
‘‘(i) the damages to natural resources com-
plained of were specifically identified as an irre-
versible and irretrievable commitment of natu-
ral resources in an environmental impact state-
ment, other comparable environment analysis,
or the final record of decision; or
‘‘(ii)(I) the decision to grant a permit or li-
cense authorized such commitment of natural
resources; and
‘‘(II) the facility or project was otherwise
operating within the terms of its permit or li-
cense.
‘‘(F) There shall be no recovery under the au-
thority of subparagraph (C) of subsection (a) where
such damages and the release of a hazardous sub-
stance from which such damages resulted have oc-
curred wholly before December 11, 1980.
‘‘(4) DAMAGE ASSESSMENT.—(A) Any natural
resource damage assessment conducted for the pur-
177
poses of this Act and paragraphs (4) and (5) of sec-
tion 311(f) of the Federal Water Pollution Control
Act made by a Federal, State, or tribal trustee shall
be performed in accordance with the regulations pro-
mulgated under section 301(c) of this Act, except
that other methods for assessing natural resource
damages may be used if such methods will yield a
more cost-effective and cost-reasonable plan for the
restoration of natural resources damaged by a par-
ticular discharge of hazardous substances. The party
proposing use of such other methods shall in all in-
stances have the burden of establishing that such
methods will yield a more cost-effective and cost-rea-
sonable plan for restoration than assessments per-
formed in accordance with the regulations. Injury
determination, restoration planning, and quantifica-
tion of restoration costs shall be based on an assess-
ment of actual site-specific conditions and restora-
tion requirements. Such assessments shall be based
on, and performed in accordance with, generally ac-
cepted scientific and technical standards, literature,
and methodologies that ensure the validity, reliabil-
ity, and cost-effectiveness of assessment results.
Such damage assessments may be used by a trustee
as the basis for a natural resource damage claim
178
only if the assessment demonstrates that the hazard-
ous substance release in question was a substantial
contributing factor of the alleged natural resource
injuries.
‘‘(B) As part of its claim, a trustee may recover
only those costs that were incurred directly or indi-
rectly to evaluate the site-specific conditions and to
implement restoration measures that are the subject
matter of the natural resource damage action.
‘‘(5) SELECTION
OF
RESTORATION
ALTER-
NATIVES.—When selecting reasonable restoration
measures, including natural recovery, or when select-
ing lost use replacement or acquisition alternatives a
trustee shall select cost-effective and cost-reasonable
methods for achieving restoration.’’.
(d) SECTION 113 LITIGATION.—The third sentence
of section 113(f)(1) is amended to read as follows: ‘‘In
resolving contribution claims, the court may allocate re-
sponse costs and natural resource damages among liable
parties using such equitable factors as the court deter-
mines are appropriate.’’.
(e) REPORTS
AND
STUDIES.—Section 301(c) is
amended to read as follows:
‘‘(c) REPORTS AND STUDIES.—(1) The President,
acting through Federal officials designated by the Na-
179
tional Contingency Plan published under section 105 of
this Act, shall promulgate regulations for the assessment
of natural resource damages and restoration costs for in-
jury to, destruction of, or loss of natural resources result-
ing from a release of oil or a hazardous substance for the
purposes of this Act and section 311(f)(4) and (5) of the
Federal Water Pollution Control Act.
‘‘(2) Such regulations shall specify protocols for con-
ducting assessments in individual cases to determine
measurable and ecologically significant injury, destruction,
or loss. Such regulations shall identify the best available
procedures to determine damages for the costs of reason-
able restoration and reasonable assessment, and shall take
into consideration the ability of the natural resource to
recover naturally and the availability of replacement or al-
ternative resources.
‘‘(3) The regulations shall require that, in the case
of a site where more than 1 Federal or State trustee in-
tends to conduct an assessment, the trustees shall des-
ignate a lead trustee at the site. Such designation shall
be done not later than 180 days after first notice to the
responsible parties that a natural resource damage assess-
ment will be made. Failure by a trustee to participate in
the designation of a lead trustee shall preclude the trustee
from seeking costs from a responsible party.’’.
180
(f) SAVINGS CLAUSE.—Section 302 is amended by
adding at the end the following new subsection:
‘‘(e) NATURAL RESOURCE DAMAGES.—Nothing in
this Act shall affect or modify in any way the rights of
any person under other Federal or State law, including
common law, to seek restitution for natural resource dam-
ages.’’.
TITLE V—STATE ROLE
TITLE V—STATE ROLE
Sec. 501. Authorization of State programs at national priorities list facilities.
Sec. 502. National Priorities List cap.
Sec. 503. State and local reimbursement for response actions.
SEC. 501. AUTHORIZATION OF STATE PROGRAMS AT NA-
TIONAL PRIORITIES LIST FACILITIES.
(a) STATE PROGRAMS.—Title I (42 U.S.C. 9601 et
seq.) is amended by adding after section 130, as added
by section 301, the following new section:
‘‘SEC. 131. STATE DELEGATION AT NPL FACILITIES.
‘‘(a) STATE AUTHORITY.—
‘‘(1) ACTIONS FOR WHICH AUTHORITY MAY BE
DELEGATED.—The Administrator may, in accord-
ance with this section, delegate authority to a State
to take any or all of the following actions at any or
all facilities within the State that are listed on the
National Priorities List:
‘‘(A) Response actions under section 104.
181
‘‘(B) Response actions under section
106(a) and enforcement under section 106(b).
‘‘(C) Cost recovery actions under section
107.
‘‘(D) Authority under subsections (e) and
(h) (other than (h)(2)) of section 120.
‘‘(E) Remedy selections under section 121.
‘‘(F) Settlements under section 122.
‘‘(G) Allocations under section 128.
‘‘(H) Community participation activities
under section 117.
‘‘(2) APPLICATION FOR STATE AUTHORITY.—
(A) The Governor of a State may submit to the Ad-
ministrator an application for State delegation of
one or more of the authorities listed in paragraph
(1) with respect to one or more facilities, and may
periodically seek amendments to its delegated au-
thority to add or delete facilities or actions for which
authority is delegated, as follows:
‘‘(i) STATES WITH RCRA CORRECTIVE AC-
TION AUTHORITY.—In the case of a State that
is authorized to administer and enforce correc-
tive action requirements pursuant to section
3006 of the Solid Waste Disposal Act, the ap-
plication shall contain the following:
182
‘‘(I) A list of facilities on the National
Priorities List within the State for which
authority is requested.
‘‘(II) A list of the actions for which
delegated authority is requested.
‘‘(III) A certification that the State
has adequate legal authority to request
and accept the authority requested.
‘‘(IV) A certification that the State
has the legal authority to enforce the au-
thority requested.
‘‘(V) If the delegation includes facili-
ties at which source, special nuclear, or by-
product materials have been releases or at
which there is a threat of such a release,
a demonstration that the State has exper-
tise in radionuclides.
‘‘(ii) OTHER
STATES.—In the case of a
State that is not authorized as described in
clause (i) pursuant to section 3006 of such Act,
the application shall contain the following:
‘‘(I) A list of facilities on the National
Priorities List within the State for which
authority is requested.
183
‘‘(II) A list of the actions for which
authority is requested.
‘‘(III) A certification that the State
has adequate legal authority to request
and accept the authority requested.
‘‘(IV) A certification that the State
has the legal authority and the financial
and personnel resources, organization, and
expertise (including a demonstration of ex-
pertise in radionuclides for facilities at
which source, special nuclear, or byproduct
materials have been released or at which
there is a threat of such a release) to ad-
minister and enforce the authority re-
quested.
‘‘(3) APPROVAL AND DISAPPROVAL OF APPLICA-
TION.—
‘‘(A) IN GENERAL.—On the last day of the
60-day period beginning on the date the Admin-
istrator receives an application made in accord-
ance with paragraph (2), the application is
deemed to be approved unless within such 60-
day period the Administrator disapproves the
application by making one of the following find-
ings:
184
‘‘(i) In the case of an application sub-
mitted pursuant to paragraph (2)(A)(i), a
finding that the State does not have ade-
quate legal authority to request and accept
the authority requested.
‘‘(ii) In the case of an application sub-
mitted pursuant to paragraph (2)(A)(ii), a
finding that the State does not have the fi-
nancial and personnel resources, organiza-
tion, or expertise to administer and enforce
the authority requested, or does not have
adequate legal authority to request and ac-
cept the authority requested.
‘‘(B) TERMS
AND
CONDITIONS
PROHIB-
ITED.—The Administrator may not place any
terms or conditions on a delegation made pur-
suant to this section.
‘‘(C) EXPLANATION AND RESUBMITTAL.—
If the Administrator disapproves an application
by making one of the findings in clause (i) or
(ii) of subparagraph (A), the Administrator
shall notify the Governor in writing of the dis-
approval and explain the basis for such finding
within 10 days after making such finding but in
no event later than 60 days after receiving the