171
who arranged for the transaction (by selling recycla-
ble material or otherwise arranging for the recycling
of recyclable material) can demonstrate by a prepon-
derance of the evidence that at the time of the
transaction—
‘‘(A) the person met the criteria set forth
in subsection (c) with respect to the scrap
metal;
‘‘(B) the person was in compliance with
any applicable regulations or standards regard-
ing the storage, transport, management, or
other activities associated with the recycling of
scrap metal that the Administrator promulgates
under the Solid Waste Disposal Act subsequent
to the enactment of this section and with re-
gard to transactions occurring after the effec-
tive date of such regulations or standards; and
‘‘(C) the person did not melt the scrap
metal prior to the transaction.
‘‘(2) For purposes of paragraph (1)(C), melting
of scrap metal does not include the thermal separa-
tion of 2 or more materials due to differences in
their melting points (referred to as ‘sweating’).
‘‘(3) For the purposes of this subsection, the
term ‘scrap metal’ means bits and pieces of metal
172
parts (e.g. bars, turnings, rods, sheets, wire) or
metal pieces that may be combined together with
bolts or soldering (e.g. radiators, scrap automobiles,
railroad box cars), which when worn or superfluous
can be recycled, except for scrap metals that the Ad-
ministrator excludes from this definition by regula-
tion and steel shipping containers of a capacity from
30 liters to and including 3,000 liters, whether in-
tact or not, having any hazardous substance (but
not metal bits or pieces) contained in or adhering
thereto.
‘‘(e) TRANSACTIONS INVOLVING BATTERIES.—(1)
Transactions involving spent lead-acid batteries, spent
nickel-cadmium batteries or other spent batteries shall be
deemed to be arranging for recycling if the person who
arranged for the transaction (by selling recyclable material
or otherwise arranging for the recycling of recyclable ma-
terial) can demonstrate by a preponderance of the evi-
dence that at the time of the transaction—
‘‘(A) the person met the criteria set forth in
subsection (c) with respect to the spent lead-acid
batteries, spent nickel-cadmium batteries, or other
spent batteries but did not recover the valuable com-
ponents of such batteries; and
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 1994, 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 pargraphs (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 1994, 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 1994. 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 cur-
rent with emerging science and relevant Agency pol-
icy.
‘‘(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
185
‘‘(iii) comply with or attain any other pro-
mulgated standard, requirement, criterion, or
limitation under any State environmental or fa-
cility siting law that the State demonstrates is
consistently applied to remedial actions under
State law, and that the State determines,
through a promulgation process which includes
public notice, comment, and written response
thereto, and opportunity for judicial review,
apply to remedial actions under the Act.
‘‘(B) Compliance with any State standard, cri-
terion, requirement, or limitation under subpara-
graph (A) shall be required at a given facility if it
has been identified by the State to the President in
a timely manner as applicable at that facility. In ad-
dition, each State shall publish a comprehensive list
of the promulgated standards, criteria, requirements,
or limitations that the State may apply to remedial
actions under this Act and revise such list periodi-
cally. The State shall also revise such list as re-
quested by the President.
‘‘(C)(i) A goal of this Act is to restore any con-
taminated ground water and surface water that may
be used for drinking water to—
186
‘‘(I) the level of any maximum contami-
nant level or non-zero maximum contaminant
level goal for any hazardous substance, pollut-
ant, or contaminant which has been established
under title XIV of the Public Health Service
Act (the Safe Drinking Water Act), and
‘‘(II) a protective concentration level that
attains the goal in paragraph (1) for any other
hazardous substance, pollutant, or contaminant.
Attainment of such levels shall satisfy the require-
ments of paragraph (1). Each total remedy selected
under this Act and each protective concentration
level established under this subsection shall achieve
the goal of this subparagraph in the ground water
or surface water unless the President makes a find-
ing which is published with an explanation and ap-
propriate documentation that the achievement of the
goal is technically impracticable from an engineering
perspective or, in the case of ground water that
meets the requirements of subsection (b)(4)(C) and
has low levels of contamination relative to such goal,
compliance with or attainment of such goal is unrea-
sonably costly considering the factors under sub-
section (b)(4)(A). Upon making such a finding, the
187
President shall publish the alternative remedial
strategy and its goals.
‘‘(ii) For the purpose of this section, the phrase
‘ground water that may be used for drinking water’
shall not include ground waters (I) containing more
than 10,000 milligrams per liter total dissolved sol-
ids, (II) that are so contaminated by naturally oc-
curring conditions or by the effects of broad-scale
human activity unrelated to a specific activity that
restoration of drinking water quality is impractica-
ble, or (III) the potential source of drinking water
is physically incapable of yielding a quantity of 150
gallons per day of water to a well or spring without
adverse environmental consequences.
‘‘(iii) Remedial actions for contaminated ground
water (other than ground water that may be used
for drinking water) shall attain levels appropriate for
the current or reasonably anticipated future use of
such ground water, or levels appropriate considering
the current use of any ground water or surface
water to which such contaminated ground water dis-
charges.
‘‘(iv) Concentration levels other than those re-
quired under clause (i) may be established for
ground water that may be used for drinking water
188
in any case in which the following conditions are
met:
‘‘(I) The President determines that the use
of alternate concentration levels is appropriate.
‘‘(II) There are known and projected
points of entry of such ground water into sur-
face water.
‘‘(III) On the basis of measurements or
projections, there is or will be no increase of
such constituents that would pose a threat to
human health or the environment from such
ground water in such surface water.
‘‘(IV) The remedial action includes en-
forceable measures that will preclude human ex-
posure to the contaminated ground water within
the facility and up to all known and projected
points of entry of such ground water into sur-
face water.
‘‘(V) Monitoring to ensure attainment of
the alternative concentration level is conducted
in ground water at a point or points imme-
diately prior to where the ground water enters
into surface water. In such cases, the point of
human exposure may be assumed to be at such
known and projected points of entry.
189
‘‘(v) Not later than 18 months after the date of
the enactment of the Superfund Reform Act of
1994, after notice and comment, the President shall
publish guidance as to determinations of technical
impracticability from an engineering perspective to
achieve the goal of this subparagraph, for use in the
selection of remedies for contaminated ground water
under subsection (b). Such guidance shall identify
certain hazardous substances, pollutants, or con-
taminants and certain geological or hydrological
characteristics of facilities with ground water con-
tamination, or combinations thereof, for which res-
toration in accordance with subclauses (I) and (II)
of clause (i) may be from an engineering perspective
technically impracticable or technically practicable.
Such guidance shall be taken into consideration
under subsection (b)(4)(A)(vii) and this subpara-
graph.
‘‘(vi) The President shall make findings of tech-
nical impracticability from an engineering perspec-
tive (including findings under this subparagraph or
subparagraph (E) or subsection (b)(4)(A) on the
basis of projections, modeling, measures undertaken
under subsection (b)(4)(B), or other analysis on a
site specific basis (including the consideration of in-
190
formation presented by responsible parties at such
facility) without a requirement that the remedial
measure for which a finding of technical imprac-
ticability is under consideration be first constructed
or installed and operated and its performance over
time reviewed, unless such projection, modeling,
measure, or other analysis are insufficient or inad-
equate to make such a finding.
‘‘(D) Procedural requirements of Federal and
State standards, requirements, criteria, or limita-
tions, including permitting requirements, shall not
apply to response actions conducted on-site. Compli-
ance with subparagraph (A) shall not be required
with respect to return, replacement, or disposal of
contaminated media or residuals of contaminated
media into the same medium in or very near existing
areas of contamination on-site.
‘‘(E)(i) The President may select a remedial ac-
tion meeting the requirements of paragraph (1) that
does not comply with or attain a Federal or State
standard, requirement, criterion, or limitation as re-
quired by subparagraphs (A) and (C), if the Presi-
dent finds any of the following:
‘‘(I) The remedial action selected is only
part of a total remedial action that will comply
191
with or attain the applicable requirements of
subparagraphs (A) and (C) of this paragraph
when completed.
‘‘(II) Compliance with or attainment of
such requirement at that facility will result in
greater risk to human health and the environ-
ment than alternative options.
‘‘(III) Compliance with or attainment of
such requirement is technically impracticable
from an engineering perspective.
‘‘(IV) The remedial action selected will at-
tain a standard of performance that is equiva-
lent to that required under a standard, require-
ment, criterion, or limitation identified under
subparagraph (A) through use of another ap-
proach.
‘‘(V) With respect to a State standard, re-
quirement, criterion, or limitation under clauses
(i), (ii), and (iii) of subparagraph (A), the State
has not consistently applied (or demonstrated
the intention to consistently apply) the stand-
ard, requirement, criterion, or limitation in
similar circumstances at other remedial actions
within the State.
192
‘‘(VI) In the case of a remedial action to
be undertaken solely under section 104 using
the Fund, a selection of a remedial action that
complies with or attains standards, criteria, re-
quirements, or limitations will not provide a
balance between the need for protection of pub-
lic health and welfare and the environment at
the facility under consideration, and the avail-
ability of amounts from the Fund to respond to
other facilities that present or may present a
threat to public health or welfare or the envi-
ronment, taking into consideration the relative
immediacy of such threat.
‘‘(ii) The President shall publish any findings
made under clause (i), together with an explanation
and appropriate documentation.
‘‘(8)(A) Except as provided in subparagraph
(B), a State standard, requirement, criteria, or limi-
tation (including any State siting standard or re-
quirement) which could effectively result in the
statewide prohibition of land disposal of hazardous
substances, pollutants, or contaminants shall not
apply.
193
‘‘(B) Any State standard, requirement, criteria,
or limitation referred to in subparagraph (A) shall
apply where each of the following conditions is met:
‘‘(i) The State standard, requirement, cri-
teria, or limitation is of general applicability
and was adopted by formal means.
‘‘(ii) The State standard, requirement, cri-
teria, or limitation was adopted on the basis of
hydrologic, geologic, or other relevant consider-
ations and was not adopted for the purpose of
precluding onsite remedial actions or other land
disposal for reasons unrelated to protection of
human health and the environment.
‘‘(iii) The State arranges for, and assures
payment of the incremental costs of utilizing, a
facility for disposition of the hazardous sub-
stances, 
pollutants, 
or 
contaminants 
con-
cerned.’’.
SEC. 502. REMEDY SELECTION.
Section 121(b) (42 U.S.C. 9621(b)) is amended to
read as follows:
‘‘(b) GENERAL RULES. —
‘‘(1) SELECTION OF PROTECTIVE REMEDIES.—
Remedies selected at individual facilities shall be
protective of human health and the environment and
194
provide long-term reliability at reasonable cost. A re-
medial action may achieve protection of human
health and the environment through treatment that
reduces the toxicity, mobility, or volume of hazard-
ous substances, pollutants, or contaminants; contain-
ment or other engineering controls to limit exposure;
a combination of treatment and containment; or
other methods of protection. The method or methods
of remediation appropriate for a given facility shall
be determined through the evaluation of remedial al-
ternatives and the selection process under para-
graphs (2) and (3). When determining the appro-
priate remedial method, treatment is to be preferred
for hot spots as defined under paragraph (3)(B).
This preference shall not apply to materials that do
not constitute hot spots.
‘‘(2) LAND USE.—(A) In selecting a remedy,
the President shall take into account the reasonably
anticipated future uses of land at a facility as re-
quired by this Act. In identifying reasonably antici-
pated future land uses the President shall consider
factors, which generally shall include the following:
‘‘(i) Any consensus recommendation of the
Community Working Group and any other
views expressed by members of the affected
195
community except that, with respect to a Fed-
eral facility scheduled for closure or realign-
ment, the President shall consider any joint
concensus recommendation of the Community
Working Group and a redevelopment authority
which has been established for such facility.
‘‘(ii) The land use history of the facility
and surrounding properties, the current land
uses of the facility and surrounding properties,
recent development patterns in the area where
the facility is located, and population projec-
tions for that area.
‘‘(iii) Federal or State land use designa-
tions, including Federal facilities and national
parks, State ground water or surface water re-
charge areas established under a State’s com-
prehensive protection plan for ground water or
surface water, and recreational areas.
‘‘(iv) The current land use zoning and fu-
ture land use plans of the local government
with land use regulatory authority.
‘‘(v) The potential for economic redevelop-
ment.
‘‘(vi) The proximity of the contamination
to 
residences, 
sensitive 
populations 
or
196
ecosystems, natural resources, or areas of
unique historic or cultural significance.
‘‘(vii) Current plans for the facility by the
property owner or owners, not including poten-
tial voluntary remedial measures.
‘‘(B) In developing its recommendation, the
Community Working Group shall consider factors
(ii) through (vii) of subparagraph (A), and the
President shall give substantial weight to that rec-
ommendation where consensus is reached, or sub-
stantial weight to the views of the affected commu-
nity where the Community Working Group does not
reach consensus in accordance with section 117(g).
‘‘(C) All information considered by the Presi-
dent in evaluating reasonably anticipated future land
uses under this paragraph shall be included in the
administrative record under section 113(k).
‘‘(3) APPROPRIATE
REMEDIAL
ACTION.—(A)
The President shall identify and select an appro-
priate remedy that prevents exposures in excess of
protective concentration levels established under sub-
section (d) by balancing the following factors:
‘‘(i) The effectiveness of the remedy, in-
cluding its implementability.
197
‘‘(ii) The long-term reliability of the rem-
edy, that is, its capability to achieve long-term
protection of human health and the environ-
ment considering the preference for treatment
of hot spots.
‘‘(iii) Any short-term risk posed by the im-
plementation of the remedy to the affected com-
munity, to those engaged in the cleanup effort,
and to the environment.
‘‘(iv) The acceptability of the remedy to
the affected community.
‘‘(v) The reasonableness of the cost of the
remedy.
‘‘(B) HOT SPOTS.—The following shall apply to
the remediation of hot spots:
‘‘(i) For purposes of this section, the term
‘hot spot’ means a discrete area within a facility
that contains hazardous substances, pollutants
or contaminants that are present in high con-
centrations, are highly mobile, or cannot be reli-
ably contained, that would present a significant
risk to human health or the environment should
exposure occur. The President shall develop
guidelines for the identification of hot spots.
Such guidelines shall recommend appropriate
198
field investigations that will not require extraor-
dinarily complex or costly measures.
‘‘(ii) In determining an appropriate remedy
for hot spots, the President shall consider the
factors under subparagraph (A). With respect
to the factor in clause (v), the President shall
use a higher threshold for evaluating the rea-
sonableness of costs for hot spot treatment rel-
ative to the remediation of non-hot spot mate-
rials.
‘‘(iii) The President shall select a remedy
requiring treatment of materials constituting
hot spots unless an appropriate treatment tech-
nology is unavailable or is available only at un-
reasonable cost. In such instances, the Presi-
dent shall select an interim containment remedy
for such hot spot subject to adequate monitor-
ing and public reporting to ensure its continued
integrity and shall review the interim contain-
ment remedy in accordance with subsection (c).
When the appropriate treatment technology be-
comes available, as determined by the Presi-
dent, that remedy shall be considered in accord-
ance with this section.
199
‘‘(iv) Notwithstanding the presence of a
hot spot, the President may select a final con-
tainment remedy for hot spots at landfills and
mining sites or similar facilities under the fol-
lowing circumstances:
‘‘(I) The hot spot is small relative to
the overall volume of waste or contamina-
tion being addressed, the hot spot is not
readily identifiable and accessible, and
without the presence of the hot spot con-
tainment would have been selected as the
appropriate remedy under subparagraph
(A) for the larger body of waste or area of
contamination in which the hot spot is lo-
cated.
‘‘(II) The volume and areal extent of
the hot spot is extraordinary compared to
other facilities, and it is highly unlikely
due to the size and other characteristics of
the hot spot that any treatment technology
will be developed that could be imple-
mented at reasonable cost.
Where final containment for a hot spot is selected,
the President shall publish an explanation of the
basis for that decision.
200
‘‘(4) SELECTION OF RESPONSE ACTIONS FOR
GROUND WATER CONTAMINATION.—
‘‘(A) FACTORS.—The President shall iden-
tify and select an appropriate remedy for con-
taminated ground water that achieves protec-
tion of human health and the environment pur-
suant to subsection (d)(1) and the goal as de-
termined pursuant to subsection (d)(7)(C) by
balancing the following factors:
‘‘(i) The effectiveness of the remedy in
achieving the goal under subsections (d)(1)
and (d)(7)(C).
‘‘(ii) The long-term reliability of the
remedy, that is, its capability to achieve
long-term protection of human health and
the environment.
‘‘(iii) Any short-term risk posed by
the implementation of the remedy to the
affected community, to those engaged in
the cleanup effort, and to the environment.
‘‘(iv) The acceptability of the remedy
to the affected community.
‘‘(v) The reasonableness of the cost of
the remedy.
201
‘‘(vi) The timeframe in which the goal
of any such remedy will be achieved in re-
lation to the urgency of the need and the
timing of the use of such ground water
‘‘(vii) The implementability of the
remedy.
‘‘(B) EARLY
EVALUATION
AND
PHASED
REMEDIAL ACTION.—(i) The President shall, as
appropriate, employ a phased approach to site
characterization and remediation in which rem-
edies are arrived at through a sequence of in-
vestigations and actions. Information gathered
in one phase shall be used to inform each suc-
cessive phase until final remediation goals are
determined and attained.
‘‘(ii) To facilitate efficient and effective
site characterization that promotes early evalua-
tion of remedial alternatives and to prevent the
ground water contamination problems from
worsening, the President shall ensure, to the ex-
tent practicable, that hydrogeologic and con-
taminant-related information necessary to select
final ground water remedial actions, including
findings of technical impracticability, shall be
collected as part of site characterization activi-
202
ties prior to and including the remedial inves-
tigation. Such data shall include information
from actions under clause (iii).
‘‘(iii) To facilitate efficient and effective
site characterization that promotes early evalua-
tion of remedial alternatives and to prevent the
ground water contamination problems from
worsening, the President shall, as appropriate,
consistent with the factors in subparagraph (A),
and to the extent technically practicable from
an engineering perspective, implement phased
remedial actions to minimize further contami-
nant migration and reduce the risk of exposure
to contaminated ground water. Such actions
shall be based on sufficient site characterization
to ensure achievement of the intended goal of
such actions, shall prevent exacerbation of the
contamination problem, and shall be monitored
to collect detailed information on site character-
ization and potential remedial alternatives.
‘‘(C) 
MINIMUM
REQUIREMENTS.—The
President shall select an appropriate remedy for
contaminated ground water that may be used
for drinking water, subject to subsection
203
(d)(7)(C), which includes, at a minimum, the
following requirements:
‘‘(i) Prevention or elimination of any
actual human ingestion of drinking water
containing any hazardous substance, pol-
lutant or contaminant at levels in excess of
the maximum contaminant level or non-
zero maximum contaminant level goal es-
tablished under title XIV of the Public
Health Service Act (the Safe Drinking
Water Act) including, as appropriate, the
provision of an alternate water supply;
‘‘(ii) Prevention or elimination of any
actual human exposure through water that
may be used for drinking to any hazardous
substances, pollutants, or contaminants at
levels in excess of those levels needed to
protect human health.
‘‘(iii) Unless technically impracticable
from an engineering perspective, prevent
impairment of any surface water des-
ignated use established under section 303
of the Federal Water Pollution Control Act
caused by such hazardous substance, pol-
lutant, or contaminant in any surface
204
water body into which such contaminated
ground water is known or projected to
enter.
‘‘(iv) Assurance that source areas in
ground water containing hazardous sub-
stances, pollutants, or contaminants shall
be contained to the extent technically fea-
sible. Treatment which reduces contamina-
tion shall be applied to the degree nec-
essary to ensure the long-term reliability of
such containment remedy. Such decision
shall be based on a balancing of the factors
in subparagraph (A).
‘‘(v) Assurance that, unless technically
impracticable from an engineering perspec-
tive, the contamination exceeding the goals
of subsection (d)(7)(C)(i) shall be con-
tained, except as provided in subsection
(d)(7)(C)(iv).
‘‘(vi) Provision for long-term monitor-
ing of such ground water, as appropriate
(including any information needed for the
purposes of review under subsection (c)).
‘‘(D) PERIODIC
REVIEW.—Each remedial
action 
conducted 
pursuant 
to 
subsection
205
(d)(7)(E)(i)(III) shall be reviewed by the Presi-
dent within 10 years after completion of all
physical on-site construction, and no less often
than every 5 years thereafter as provided in
subsection (c). If the President determines that
remedial alternatives have become available to
attain the goal of subsection (d)(7)(C), the
President shall select a new remedy in accord-
ance with this section.
‘‘(5) GENERIC REMEDIES.—In order to stream-
line the remedy selection process and to facilitate
rapid voluntary action, the President shall establish,
taking into account the factors enumerated in para-
graph (3)(A), cost-effective generic remedies for cat-
egories of facilities, and expedited procedures that
include community involvement for selecting generic
remedies at an individual facility. To be eligible for
selection at a facility, a generic remedy shall be pro-
tective of human health and the environment at that
facility. In appropriate cases, the President may se-
lect a generic remedy without considering alter-
natives to the generic remedy.
‘‘(6) 
INSTITUTIONAL
CONTROLS.—Whenever
the President selects a remedial action which relies
on restrictions on the use of land, water, or other re-
206
sources to achieve protection of human health and
the environment, the President shall specify the na-
ture of the restrictions required to achieve such pro-
tections, including restrictions on the permissible
uses of land, prohibitions on specified activities upon
the property, restrictions on the drilling of wells or
the use of ground water, or restrictions on the use
of surface water, and may ensure that such restric-
tions are incorporated into a hazardous substance
easement, as provided by section 104(k). In review-
ing remedial action alternatives which would require
the use of such restrictions and providing oppor-
tunity for public comment on those alternatives, the
President shall identify the nature of any institu-
tional controls that would be required to implement
such restrictions, known or anticipated affected per-
sons, the likely duration of such restrictions, and the
anticipated costs of acquiring any appropriate haz-
ardous substance easements and enforcing the ap-
propriate restrictions.’’.
SEC. 503. MISCELLANEOUS AMENDMENTS TO SECTION 121.
(a) REVIEW.—Section 121(c) (42 U.S.C. 9621(c)) is
amended—
207
(1) in the first sentence, by striking out ‘‘initi-
ation’’ and inserting in lieu thereof ‘‘completion of
all physical on-site construction,’’;
(2) in the second sentence, by inserting ‘‘(1)’’
after ‘‘it is the judgment of the President that’’; and
(3) in the second sentence, by inserting after
‘‘section 104 or 106,’’ the following: ‘‘or (2) an in-
terim containment remedy was selected for such site
and an appropriate final remedial action is available
under subsection (b)(3)(B)(iii) and appropriate to
select in accordance with subsection (b)(3)(A) of this
section,’’.
(b) Section 121(e)(1) (42 U.S.C. 9621(e)(1)) is
amended by adding at the end thereof the following: ‘‘Fur-
thermore, no Federal, State, or local permit or permit ap-
plication shall be required for on-site or off-site activities
conducted under section 311(b).’’.
SEC. 504. RESPONSE AUTHORITIES.
(a) 
STUDIES
AND
INVESTIGATIONS.—Section
104(b)(1) (42 U.S.C. 9604(b)(1)) is amended in the sec-
ond sentence by striking ‘‘studies’’ and all that follows
through the end of the sentence and inserting in lieu
thereof the following: ‘‘actions, studies, or investigations
as he may deem necessary or appropriate to plan and di-
208
rect response actions or to enforce the provisions of this
Act and shall be entitled to recover the costs thereof.’’.
(b) DISPOSAL
AUTHORITY.—Section 104(j) (42
U.S.C. 9604(j)) is amended—
(1) in paragraph (1), by striking ‘‘remedial’’ in
the first sentence and inserting ‘‘response’’;
(2) by striking paragraph (2);
(3) by redesignating paragraph (3) as para-
graph (2) and in that paragraph by striking ‘‘es-
tate’’ and inserting ‘‘property’’; and
(4) by inserting after paragraph (2) (as redesig-
nated) the following new paragraph:
‘‘(3) DISPOSAL AUTHORITY.—The President is
authorized to dispose of any interest in real property
acquired for use by the Administrator under this
subsection by sale, exchange, donation, or otherwise
and any such interest in real property shall not be
subject to any of the provisions of section 120 except
the notice provisions of section 120(h)(1). Any mon-
eys received by the President pursuant to this para-
graph shall be deposited in the Fund.’’.
(c) PRIVATE PARTY REMOVAL LIMITATIONS.—Sec-
tion 104(a)(2) (42 U.S.C. 9604(a)(2)) is amended by add-
ing at the end the following: ‘‘In any case in which imple-
mentation of a removal action is expected to obviate or
209
in fact does obviate the need to conduct a long-term reme-
dial action, such removal action must—
‘‘(A) comply with the protective concentra-
tion levels and other standards in subsections
(b) and (d) of section 121; and
‘‘(B) allow for public participation in ac-
cordance with seciton 117 to the maximum ex-
tent practicable.’’.
SEC. 505. REMOVAL ACTIONS.
(a) OBLIGATIONS FROM FUND.—Section 104(c)(1)
(42 U.S.C. 9604(c)(1)) is amended—
(1) by striking ‘‘consistent with the remedial
action to be taken’’ and inserting ‘‘not inconsistent
with any remedial action that has been selected or
is anticipated at the time of the removal action,’’;
(2) by striking ‘‘$2,000,000’’ and inserting
‘‘$4,000,000’’; and
(3) by striking ‘‘12 months’’ and inserting ‘‘two
years’’.
(b) NON-EMERGENCY REMOVALS.—Section 120(e)
(42 U.S.C. 9620(e)) is amended by adding at the end the
following new paragraph:
‘‘(7) NOTIFICATION
OF
AND
CONCURRENCE
FROM
EPA
OR
STATE
FOR
NON-EMERGENCY
RE-
MOVAL ACTIONS.—(A) Before the commencement of
210
any non-emergency removal action by a department,
agency, or instrumentality of the United States,
such department, agency, or instrumentality shall—
‘‘(i) notify the Environmental Protection
Agency and the State of the planned removal
action; and
‘‘(ii) obtain, in the case of facilities which
are listed or proposed for listing on the Na-
tional Priorities List, concurrence in the
planned removal action from the Environmental
Protection Agency or the State, as applicable.
‘‘(B) The lack of concurrence under clause (ii)
shall not delay the commencement of the remedial
investigation and feasibility study in accordance with
the time requirements of this section. The require-
ments of this paragraph relating to notification and
concurrence shall not affect, alter, or supplant, di-
rectly or indirectly, the applicability of any State law
to the removal action concerned. Within a reasonable
period of time after any emergency removal action is
carried out by a department, agency, or instrumen-
tality of the United States, the department, agency,
or instrumentality shall notify the Environmental
Protection Agency or the State, as appropriate, of
the removal action.’’.
211
SEC. 506. HAZARDOUS SUBSTANCE PROPERTY USE.
Section 104 (42 U.S.C. 9604) is amended by adding
at the end the following:
‘‘(k) HAZARDOUS SUBSTANCE PROPERTY USE.—
‘‘(1) AUTHORITY OF PRESIDENT TO ACQUIRE
EASEMENTS.—In order to prevent exposure to, re-
duce the likelihood of, or otherwise respond to a re-
lease or threatened release of a hazardous substance,
pollutant, or contaminant, the President may ac-
quire, at fair market value, or for other consider-
ation as agreed to by the parties, a hazardous sub-
stance easement which restricts, limits, or controls
the use of land or other natural resources, including
specifying permissible or impermissible uses of land,
prohibiting specified activities upon property, prohib-
iting the drilling of wells or use of ground water, or
restricting the use of surface water.
‘‘(2) USE OF EASEMENTS.—A hazardous sub-
stance easement and notice of a property use restric-
tion under this subsection may be used wherever in-
stitutional controls have been selected as a compo-
nent of a removal or remedial action in accordance
with this Act and the National Contingency Plan.
Such easements and notices shall not be used in
cases in which institutional controls are not relied
upon in a removal or remedial action. Whenever
212
such controls are selected as a component of a re-
moval or remedial action, the President shall ensure
that the terms of the controls and, as appropriate,
the easement are specified in all appropriate decision
documents, enforcement orders, and public informa-
tion regarding the site.
‘‘(3) PERSONS
SUBJECT
TO
EASEMENTS.—A
hazardous substance easement shall be enforceable
in perpetuity (unless terminated and released as pro-
vided for in this section) against any owner of the
affected property and all persons who subsequently
acquire interest in the property or rights to use the
property, including lessees, licensees, and any other
person with an interest in the property, without re-
spect to privity or lack of privity of estate or con-
tract, lack of benefit running to any other property,
assignment of the easement to another party, or any
other circumstance which might otherwise affect the
enforceability of easements or similar deed restric-
tions under the laws of the State. The easement
shall be binding upon holders of any other interests
in the property regardless of whether such interests
are recorded or whether they were recorded prior or
subsequent to the easement, and shall remain in ef-
213
fect notwithstanding any foreclosure or other asser-
tion of such interests.
‘‘(4) CONTENTS OF EASEMENTS.—A hazardous
substance easement shall contain, at a minimum—
‘‘(A) a legal description of the property af-
fected;
‘‘(B) the name or names of any current
owner or owners of the property as reflected in
public land records;
‘‘(C) a description of the release or threat-
ened release; and
‘‘(D) a statement as to the nature of the
restriction, limitation, or control created by the
easement.
‘‘(5) USE RESTRICTION NOTICE.—Whenever the
President acquires a hazardous substance easement
or assigns a hazardous substance easement to an-
other party, the President shall record a notice of
property use restriction in the public land records
for the jurisdiction in which the affected property is
located. Such a notice shall specify restrictions, limi-
tations, or controls on the use of land or other natu-
ral resources provided for in the hazardous sub-
stance easement.
214
‘‘(6) FILING OF NOTICE.—Wherever recording
in the public land records is required under this sub-
section, the President shall file the notice or other
instrument in the appropriate office within the State
(or governmental subdivision) in which the affected
property is located, as designated by State law. If
the State has not by law designated one office for
the recording of interests in real property or claims
or rights burdening real property, the document or
notice shall be filed in the office of the clerk of the
United States district court for the district in which
the affected property is located.
‘‘(7) METHODS OF ACQUIRING EASEMENTS.—
The President may acquire a hazardous substance
easement by purchase or other agreement, by con-
demnation, or by any other means permitted by law.
Compensation for such easement shall be at fair
market value, or for other consideration as agreed to
by the parties, for the interest acquired. The costs
of obtaining such easements, ensuring adequate pub-
lic notice of such easements, and otherwise tracking
and maintaining the protections afforded by the
easements shall be considered response costs which
are recoverable under this Act.
215
‘‘(8) ASSIGNMENT OF EASEMENTS TO PARTIES
OTHER THAN THE PRESIDENT.—
‘‘(A) AUTHORITY TO ASSIGN.—The Presi-
dent may assign an easement acquired under
this subsection to a State or other governmental
entity that has the capability of effectively en-
forcing the easement over the period of time
necessary to achieve the purposes of the ease-
ment. In the case of any assignment, the ease-
ment shall be fully enforceable by the assignee.
Any assignment of such an easement by the
President may be made by following the same
procedures as are used for the transfer of an
interest in real property to a State under sec-
tion 104(j).
‘‘(B) EFFECT OF ASSIGNMENT.—Any in-
terest in property granted to a State or other
governmental entity which restricts, limits, or
controls the use of land or other natural re-
sources in order to prevent exposure to, reduce
the likelihood of, or otherwise respond to, a re-
lease or threatened release of a hazardous sub-
stance, pollutant, or contaminant, and which is
expressly designated in writing as a hazardous
substance easement within the meaning of this
216
paragraph, shall create the same rights, have
the same legal effect, and be enforceable in the
same manner as a hazardous substance ease-
ment acquired by the President regardless of
whether the interest in property is otherwise de-
nominated as an easement, covenant, or any
other form of property right.
‘‘(9) PUBLIC NOTICE.—Not later than 180 days
after the date of the enactment of this subsection,
the President shall issue regulations regarding the
procedures to be used for public notice of proposed
property use restrictions. Such regulations shall en-
sure that before acquiring a hazardous substance
easement, and before recording any notice of such
easement, the President will give notice and an op-
portunity to comment to the owner of the affected
property, all other persons with recorded interests in
the property, any lessees or other authorized occu-
pants of the property known to the President, the
State and any municipalities in which the property
is located, any relevant community work group es-
tablished under section 117, the affected community,
and the general public.
‘‘(10) TERMINATION OF EASEMENTS.—An ease-
ment acquired under this subsection shall remain in
217
force until the holder of the easement executes and
records a termination and release in accordance with
the terms of the easement and approved by the Ad-
ministrator of the Environmental Protection Agency
or the relevant assignee. Such termination shall be
recorded in the same manner as the easement.
‘‘(11) ENFORCEMENT.—
‘‘(A) EFFECT OF VIOLATIONS.—Violation
of any restriction, limitation, or control imposed
under a hazardous substance easement shall
have the same effect as failure to comply with
an order issued under section 106 and relief
may be sought either in enforcement actions
under section 106(b)(1), section 120(g), or sec-
tion 127(e) or in citizens suits under section
310. No citizens suit under section 310 to en-
force such a notice may be commenced if the
holder of the easement has commenced and is
diligently prosecuting an action in court to en-
force the easement.
‘‘(B) 
ENFORCEMENT
ACTIONS.—The
President may take appropriate enforcement ac-
tions to ensure compliance with the terms of
the easement whenever the Administrator of the
Environmental Protection Agency determines
218
that the terms set forth in the easement are
being violated. If the easement has been as-
signed to a party other than the President and
that party has not taken appropriate enforce-
ment actions, the President may notify the
party of the violation. If the party does not take
appropriate enforcement actions within 30 days
of such notification, or sooner in the case of an
imminent hazard, the President may initiate
such enforcement actions.
‘‘(12) APPLICABILITY OF OTHER PROVISIONS.—
Holding a hazardous substance easement shall not
subject either the holder thereof or the owner of the
affected property to liability under section 107. Any
such easement acquired by the President shall not
be subject to the requirements of section 104(j) or
120(h).’’.
SEC. 507. TRANSITION.
(a) EFFECTIVE DATE.—This title, and the amend-
ments made by this title, shall become effective 180 days
after the date of enactment of this Act. Remedies selected
under the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 following that effec-
tive date shall be selected as provided in section 121(b)
of that Act (as amended by this Act) and subject to the
231
‘‘(II) Inclusion of interviews with past and
present owners, operators, and occupants of the
facility and its real property for the purpose of
gathering information regarding the potential
for contamination at the facility and its real
property.
‘‘(III) Inclusion of a review of historical
sources, such as chain of title documents, aerial
photographs, building department records, and
land use records, to determine previous uses
and occupancies of the real property since it
was first developed.
‘‘(IV) Inclusion of a search for recorded
environmental cleanup liens, filed under Fed-
eral, State, or local law, against the facility or
its real property.
‘‘(V) Inclusion of a review of Federal,
State, and local government records, such as
waste disposal records; underground storage
tank records; and hazardous waste handling,
generation, 
treatment, 
disposal, 
and 
spill
records, concerning contamination at or near
the facility or its real property.
250
shall be valid for a term to be set by the State, but no
longer than 5 years.
(4) A State may charge a reasonable fee, equal to
the cost of determining compliance under paragraph (2),
to each organization that applies for such determination.
Any such fees shall be listed as part of the regulations
promulgated under subsection (c).
(5) Any organization that has received notice of a de-
termination of compliance from a State under paragraph
(3), may issue a diploma, certification, or other form of
degree, to any individual who has completed to its satisfac-
tion such organization’s curriculum and training program
signifying that the recipient is a ‘‘Certified Phase I Envi-
ronmental Professional’’ qualified to perform Phase I En-
vironmental Site Assessments.
(6) A State may periodically, or upon expiration of
a notification of a determination of compliance under
paragraph (3), review the program, curriculum, facilities,
and training methods of any such organization to deter-
mine such organizations continued compliance with the
regulations promulgated under subsection (c).
(e) DEFINITIONS.—For purposes of this section:
(1) PHASE
I
ENVIRONMENTAL
SITE
ASSESS-
MENT.—The term ‘‘Phase I Environmental Site As-
sessment’’ means the process by which a person or