is located, any relevant community assistance group
established under section 117, the affected commu-
nity, and the general public.
‘‘(10) TERMINATION OF EASEMENTS.—An ease-
ment acquired under this subsection shall remain in
force until it expires by its terms or until the holder
of the easement executes and records a termination
and release in accordance with the terms of the ease-
ment and approved by the Administrator of the En-
vironmental Protection Agency or the relevant as-
signee. 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
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 as-
signee 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 initi-
ate 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 subsection (j) or
section 120(h).’’.
SEC. 109. EFFECTIVE DATE AND TRANSITION RULES.
The amendments made by this title shall apply—
(1) to any final remedial action selected under
the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 for which the
Record of Decision (hereinafter in this section re-
ferred to as the ‘‘ROD’’) was signed, or the consent
decree was lodged, after the date of the enactment
of this Act; and
(2) to any modifications made to any ROD
after the date of enactment of this Act.
TITLE II—LIABILITY
SEC. 201. PARTIES NOT RESPONSIBLE FOR POLLUTION.
(a) IN GENERAL.—Section 107 (42 U.S.C. 9607) is
amended by adding at the end the following:
‘‘(o) EXEMPTIONS
AND LIMITATIONS
OF LIABIL-
ITY.—
‘‘(1) PRE-1987 GENERATORS AND TRANSPORT-
ERS.—No person (other than the United States or
a department, agency or instrumentality of the Unit-
ed States) shall be liable under paragraph (3) or (4)
of subsection (a) for a release or threatened release
at a facility or vessel not owned by the United
States listed on the National Priorities List, if no
activity of such person described in such paragraph
(3) or (4) occurred after January 1, 1987, unless it
is demonstrated by a preponderance of the evidence
that—
‘‘(A) such person generated or transported
hazardous substances that have contributed sig-
nificantly or could contribute significantly to
the costs of the response or to the costs of the
natural resource damages;
‘‘(B) such person has impeded the per-
formance of the response action or natural re-
source damage restoration;
‘‘(C) such person is legally affiliated with
a liable person at the facility or vessel through
any direct familial, contractual, corporate, or fi-
nancial relationship to the facility other than
that arising from a contract for the disposal,
treatment, or transportation of the hazardous
substances at, to, or from the facility; or
‘‘(D) such person has not substantively
complied with all requests made under the au-
thority of sections 104(e), 122(g)(2), and 128
with respect to such facility or vessel.
‘‘(2) MUNICIPAL
SOLID
WASTE
AND
SEWAGE
SLUDGE.—No person (other than the United States
or a department, agency or instrumentality of the
United States) shall be liable under paragraph (3)
or (4) of subsection (a) for a release or threatened
release at any facility or vessel not owned by the
United States listed on the National Priorities List
if the activity of such person described in such para-
graph (3) or (4) involved only municipal solid waste
or sewage sludge, unless it is demonstrated by a pre-
ponderance of the evidence that—
‘‘(A) the hazardous substances contained
in such waste or sludge have contributed sig-
nificantly or could contribute significantly to
the costs of the response or to the costs of the
natural resource damages;
‘‘(B) such person has impeded the per-
formance of the response action or natural re-
source damage restoration; or
‘‘(C) such person has not substantively
complied with all requests made under the au-
thority of sections 104(e), 122(g)(2), and 128
with respect to such facility or vessel.
‘‘(3) DE
MICROMIS
EXEMPTION.—No person
(other than the United States or a department,
agency or instrumentality of the United States) shall
be liable under paragraph (3) or (4) of subsection
(a) for a release or threatened release at any facility
or vessel if the activity of such person described in
such paragraph (3) or (4) involved no more than
110 gallons of liquid materials containing hazardous
substances or more than 200 pounds of solid mate-
rials containing hazardous substances, unless it is
demonstrated by a preponderance of the evidence
that—
‘‘(A) such hazardous substances have con-
tributed significantly or could contribute signifi-
cantly to the costs of the response or to the
costs of the natural resource damage restora-
tion;
‘‘(B) such person has impeded the per-
formance of a response action or natural re-
source damage restoration; or
‘‘(C) such person has not substantively
complied with all requests made under the au-
thority of section 104(e).
‘‘(4) FACILITIES
ACQUIRED
BY
INHERITANCE
OR BEQUEST.—No person shall be liable under this
section for costs or damages at any facility or vessel
to the extent that liability at such facility or vessel
is based solely on the person’s status as an owner
under paragraph (1) of subsection (a) for a release
or threat of release from the facility or vessel, and
the person acquired the facility or vessel by inherit-
ance or bequest if the person—
‘‘(A) acquired the real property on which
the facility concerned is located, or acquired the
vessel, after placement of the hazardous sub-
stance occurred at the facility or vessel;
‘‘(B) did not cause, contribute to, or con-
sent to the release or threat of release; and
‘‘(C) exercised due care with respect to the
hazardous substance concerned, including pre-
cautions against foreseeable acts of third par-
ties, taking into consideration the characteris-
tics of such hazardous substance, in light of all
relevant facts and circumstances.
‘‘(5) CERTAIN TAX EXEMPT ORGANIZATIONS.—
A person’s liability under this section with respect to
a release or threatened release from a facility or ves-
sel shall be limited to the lesser of the fair market
value of the facility or vessel or the actual proceeds
of the sale of the facility or vessel received by the
person, to the extent such liability is based solely on
the person’s status under paragraph (1) of sub-
section (a) as owner of the facility or vessel if the
person—
‘‘(A) holding title, either outright or in
trust, to the facility or vessel is an organization
described in section 501(c)(3) of the Internal
Revenue Code of 1986 and exempt from tax
under section 501(a) of such Code and holds
such title as a result of a charitable donation
that qualifies under sections 170, 2055, or
2522 of such Code;
‘‘(B) exercised due care with respect to the
hazardous substance concerned, including pre-
cautions against foreseeable acts of third par-
ties, taking into consideration the characteris-
tics of such hazardous substance, in light of all
relevant facts and circumstances;
‘‘(C) did not cause, contribute to, or con-
sent to the release or threat of release; and
‘‘(D) acquired the real property on which
the facility concerned is located, or acquired the
vessel, after placement of the hazardous sub-
stance occurred at the facility or vessel.
‘‘(6) CONSTRUCTION CONTRACTORS.—No per-
son shall be liable under this section for costs or
damages at any facility or vessel to the extent that
liability is based solely on a person’s construction ac-
tivities at a facility or vessel if such person can dem-
onstrate by a preponderance of evidence that such
construction activities were specifically directed by
and carried out in accordance with a contract with
an owner or operator of the facility or vessel.
‘‘(7) RAILROAD OWNERS.—No person shall be
liable under this section for costs or damages at any
facility to the extent that liability is based solely on
the status of the person as a railroad owner or oper-
ator of a spur track, including a spur track over
land subject to an easement, to a facility that is
owned or operated by a person that is not affiliated
with the railroad owner or operator, if—
‘‘(A) the spur track provides access to a
main line or branch line track that is owned or
operated by the railroad;
‘‘(B) the spur track is 10 miles long or
less; and
‘‘(C) the railroad owner or operator does
not cause or contribute to a release or threat-
ened release at the spur track.
‘‘(8) GRANTEES OF CERTAIN EASEMENTS.—No
person shall be liable under this section for costs or
damages at any facility for a release or threat of re-
lease from the facility to the extent that liability is
based solely on the status of the person as—
‘‘(A) a holder of a pipeline right-of-way or
easement; or
‘‘(B) a holder of a gas or oil lease;
if the holder of such right-of-way, easement, or lease did
not cause, contribute to, or consent to the release or threat
of release.
‘‘(9) INAPPLICABILITY.—An exemption under
paragraph (4), (5), (6), (7), or (8) shall not apply
to any person with respect to any facility or vessel
if it is demonstrated that—
‘‘(A) such person has impeded the per-
formance of a response action or natural re-
source damage restoration at such facility or
vessel;
‘‘(B) such person has refused to provide
cooperation and facility access to persons au-
thorized to conduct response actions or natural
resource damage restorations at the facility or
vessel; or
‘‘(C) such person has not substantively
complied with all requests made under the au-
thority of section 104(e) with respect to such
facility or vessel.
‘‘(10) LIMITATIONS ON LIABILITY OF MUNICI-
PALITIES.—
‘‘(A) SMALL
MUNICIPALITIES.—With re-
spect to a facility listed on the National Prior-
ities List at which the predominant sources of
contamination initially originated with parties
liable under subparagraph (3) or (4) of sub-
section (a) prior to the enactment of the
Superfund Reform Act, that is owned or oper-
ated only by small municipalities and that is
not subject to the criteria for solid waste land-
fills published under subtitle D of the Solid
Waste Disposal Act (42 U.S.C. 6941 et seq.)
at part 258 of title 40, Code of Federal Regula-
tions (or a successor regulation), the aggregate
liability of all small municipalities for response
costs incurred on or after the date of enactment
of this subsection shall be the lesser of—
‘‘(i) 10 percent of the total amount of
response costs at the facility; or
‘‘(ii) the costs of compliance with the
requirements of subtitle D of the Solid
Waste Disposal Act (42 U.S.C. 6941 et
seq.) for the facility (as if the facility had
continued to accept municipal solid waste
through January 1, 1997).
‘‘(B) AGGREGATE
LIABILITY
OF
LARGE
MUNICIPALITIES.—With respect to a facility
listed on the National Priorities List at which
the predominant sources of contamination origi-
nated with parties liable under subparagraph
(3) or (4) of subsection (a) prior to the enact-
ment of the Superfund Reform Act, that is
owned or operated only by large municipalities
and that is not subject to the criteria for solid
waste landfills published under subtitle D of the
Solid Waste Disposal Act (42 U.S.C. 6941 et
seq.) at part 258 of title 40, Code of Federal
Regulations (or a successor regulation), the ag-
gregate liability of all large municipalities for
response costs incurred on or after the date of
enactment of this subsection shall be the lesser
of—
‘‘(i) 20 percent of the proportion of
the total amount of response costs at the
facility; or
‘‘(ii) the costs of compliance with the
requirements of subtitle D of the Solid
Waste Disposal Act (42 U.S.C. 6941 et
seq.) for the facility (as if the facility had
continued to accept municipal solid waste
through January 1, 1997).
‘‘(C) AGGREGATE
LIABILITY
OF
MUNICI-
PALITIES AND NONMUNICIPALITIES.—With re-
spect to a facility listed on the National Prior-
ities List that is owned and operated by a com-
bination of small and large municipalities or
persons other than municipalities and that is
subject to the criteria for solid waste landfills
published under subtitle D of the Solid Waste
Disposal Act (42 U.S.C. 6941 et seq.) at part
28 of title 40, Code of Federal Regulations (or
a successor regulation)—
‘‘(i) the allocator shall determine the
proportion of the contamination of the
landfill that was made during the owner-
ship or operation of it by small and large
municipalities and persons other than mu-
nicipalities during the time the facility was
in operation; and
‘‘(ii) shall allocate among the parties
an appropriate percentage of total liability
which for the municipal parties shall not
exceed the aggregate liability percentages
stated in paragraphs (1) and (2).
‘‘(D) LIMITATIONS.—The liability limita-
tions of this paragraph shall not apply to—
‘‘(i) a person that acted in violation of
subtitle C of the Solid Waste Disposal Act
(42 U.S.C. Sec. 6921 et seq.);
‘‘(ii) a person that owned or operated
a facility in violation of the applicable re-
quirements for municipal solid waste land-
fill units under subtitle D of the Solid
Waste Disposal Act (42 U.S.C. Sec. 6941
et seq.) after October 9, 1991;
‘‘(iii) a person that did not act pursu-
ant to and in substantial compliance with
any other applicable permit, license, or
other approval or authorization relating to
solid waste or sewage sludge disposal is-
sued by an appropriate Federal, State, In-
dian tribe, or local government authority,
and such violation caused contamination of
the facility; or
‘‘(iv) a person that impedes the per-
formance of a response action.
‘‘(11) TREATMENT OF NON-LIABLE PARTIES.—
The Administrator shall seek to minimize the admin-
istrative and legal burdens on parties that are not
liable pursuant to this section. To the extent prac-
ticable, the Administrator shall—
‘‘(A) inform such parties that they are ex-
empted from liability pursuant to this section,
and offer them written assurances establishing
their exempt status; and
‘‘(B) eliminate or minimize any need for
such parties to retain legal counsel in connec-
tion with administrative or legal proceedings
concerning the facility at issue.
‘‘(p) SIGNIFICANT CONTRIBUTIONS.—For purposes
of paragraphs (1), (2), and (3) of subsection (o), a dem-
onstration that hazardous substances have contributed
significantly or could contribute significantly to the costs
of a response or to natural resource damages shall be
based upon the following factors in relationship to the
costs of the response or to the natural resource damages:
‘‘(1) The degree to which the person caused,
contributed to, or consented to the release or threat
of release of hazardous substances at the facility.
‘‘(2) The amount of hazardous substances con-
tributed by the person. Any person who arranged for
the disposal or treatment, or arranged with a trans-
porter for transport for disposal or treatment, of
hazardous substances constituting less than one per-
cent by volume of the hazardous substances at a fa-
cility shall be presumed not to have contributed sig-
nificantly to the costs of a response or to natural re-
source damages.
‘‘(3) The degree of toxicity of the hazardous
substances contributed by the person.
‘‘(4) The mobility of the hazardous substances
contributed by the person.
‘‘(5) The degree of involvement of the person in
the generation, transportation, treatment, storage,
or disposal of the hazardous substances it contrib-
uted, including whether the person exercised control
over the owner or operator of the facility or vessel
during the period when such activities occurred.
‘‘(6) The degree of care exercised by the person
with respect to the hazardous substances it contrib-
uted, taking into account the characteristics of the
hazardous substances.
‘‘(7) The cooperation of the person in perform-
ing any response action and in providing complete
and timely information pursuant to sections 104(e)
and 122(g)(2).’’.
(b) EFFECTIVE DATE AND TRANSITION RULES.—
The amendments made by this section shall take effect
upon the date of the enactment of this Act, except that
such amendments shall not apply in the following:
(1) Any action brought by any person other
than the United States under section 107 or 113 of
the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 for contribution
to response costs or natural resource damage res-
toration actually incurred by such person before No-
vember 9, 1997.
(2) Any action seeking indemnity, rights of de-
fense, or other rights under any contract of indem-
nification or insurance.
SEC. 202. CLARIFICATIONS OF CERTAIN LIABILITY.
(a) AMOUNT OF LIABILITY.—Section 107(c)(3) (42
U.S.C. 9607(c)(3)) is amended in the first sentence by
striking ‘‘at least equal to,’’ and all that follows through
the end of the sentence and inserting ‘‘up to three times
the amount of such response costs.’’.
(b) CLARIFICATION OF COMMON CARRIER LIABIL-
ITY.—Section 107(b)(3) is amended by striking out ‘‘from
a published tariff and acceptance for’’ and inserting ‘‘ex-
clusively from a contract for’’.
(c) OTHER CLARIFICATIONS.—Section 107(a) (42
U.S.C. 9607(a)) is amended as follows:
(1) In paragraph (1), by striking ‘‘and’’ and in-
serting ‘‘or’’.
(2) In paragraph (4)(B)—
(A) by striking ‘‘other’’ both places it ap-
pears; and
(B) by inserting ‘‘, other than the United
States, a State, or an Indian tribe,’’ before the
phrase ‘‘consistent with the national contin-
gency plan’’.
(3) In paragraph (4), by striking ‘‘by such per-
son,’’ and all that follows through ‘‘shall be liable
for—’’ and inserting in lieu thereof the following:
‘‘by such person—
from which there is a release, or a threatened release, that
causes the incurrence of response costs, of a hazardous
substance, shall be liable for—’’.
(4) By designating the text beginning with
‘‘The amounts recoverable’’ and ending with ‘‘this
subsection commences.’’ as paragraph (5) and align-
ing the margin of such text with paragraph (4).
(5) By adding the following new paragraph at
the end thereof:
‘‘(6) The costs recoverable under this section
shall not include any costs incurred by the United
States for management support, for research and
development, or for enforcement.’’.
SEC. 203. AMENDMENTS TO SECTION 106.
(a) ADMINISTRATIVE ORDERS.—Section 106(a) (42
U.S.C. 9606(a)) is amended by adding at the end the fol-
lowing: ‘‘The President may not amend such administra-
tive orders or issue additional orders relating to the facil-
ity without a subsequent finding of an imminent and sub-
stantial endangerment. No order may be issued under this
section against any person who would not be liable for
costs or damages referred to in section 107(a). In any case
in which the President issues an order to a person under
this subsection, the President shall provide information
concerning the evidence that indicates that each element
of liability contained in section 107(a) is present. In the
case of a person who is found liable by an allocator under
section 128, the President may issue orders under this sec-
tion only in accordance with section 128(m).’’.
(b) SUFFICIENT
CAUSE.—Section 106(b)(1) (42
U.S.C. 9606(b)(1)) is amended—
(1) by inserting ‘‘(A)’’ after ‘‘(b)(1)’’;
(2) by striking ‘‘to enforce such order’’;
(3) by inserting before the period ‘‘, or be re-
quired to comply with such order, or both, even if
another person has complied, or is complying, with
the terms of the same order or another order per-
taining to the same facility and release or threatened
release’’; and
(4) by inserting at the end the following:
‘‘(B) For purposes of this subsection and section
107(c)(3), a ‘sufficient cause’ includes, without limitation,
an objectively reasonable belief by the person to whom the
order is issued that—
‘‘(i) the person is not liable for any response
costs under section 107; or
‘‘(ii) that the action to be performed pursuant
to the order is inconsistent with the national contin-
gency plan.
SEC. 204. CIVIL PROCEEDINGS.
(a) PETITIONS.—Section 113(a) (42 U.S.C. 9613(a))
is amended as follows:
(1) By striking ‘‘upon application by any inter-
ested person’’ and inserting ‘‘by any interested per-
son through the filing of a petition for review’’.
(2) By striking ‘‘application shall be made’’,
and inserting ‘‘petition shall be filed’’.
(b) PERIOD IN WHICH ACTION MAY BE BROUGHT.—
Section 113(g) (42 U.S.C. 9613(g)) is amended by strik-
ing paragraphs (2) and (3) and inserting in lieu thereof
the following:
‘‘(2) ACTIONS FOR RECOVERY OF COSTS.—(A)
Except as provided in subparagraph (C), an initial
action for recovery of costs referred to in section
107 must be commenced—
‘‘(i) for a removal action, within 3 years
after completion of all removal action taken
with respect to the facility, including off-site
disposal of any removed materials, except that
if physical on-site construction of the remedial
action is initiated within 3 years after the com-
pletion of all removal action taken with respect
to the facility, costs incurred for removal action
may be recovered in a cost recovery action
brought under clause (ii); and
‘‘(ii) for a remedial action, within 6 years
after initiation of physical on-site construction
of the remedial action.
‘‘(B) In any such action described in this para-
graph, the court shall enter a declaratory judgment
on liability for response costs or damages that will
be binding in such action or in any subsequent ac-
tion or actions to recover further response costs or
damages. A subsequent action or actions under sec-
tion 107 for further response costs at the vessel or
facility may be maintained at any time during the
response action, but must be commenced no later
than 3 years after the date of completion of all re-
sponse action. Except as otherwise provided in this
paragraph, an action may be commenced under sec-
tion 107 for recovery of costs at any time after such
costs have been incurred.
‘‘(C) An action by any potentially responsible
party against another potentially responsible party
for recovery of any response costs or damages must
be commenced within the later of—
‘‘(i) the time limitations set forth in sub-
paragraph (A); or
‘‘(ii) where recovery is sought for costs or
damages paid pursuant to a judgment or settle-
ment, 3 years after—
‘‘(I) the date of judgment in any ac-
tion under this Act for recovery of such
costs or damages, or
‘‘(II) the date of any administrative
order or judicial settlement for recovery of
the costs or damages paid or incurred pur-
suant to such a settlement.’’.
SEC. 205. LIMITATIONS ON CONTRIBUTION ACTIONS.
Section 113(f) (42 U.S.C. 9613(f)) is amended as fol-
lows:
(1) By amending paragraph (1) as follows:
(A) By striking ‘‘Any person’’ in the first
sentence and inserting ‘‘Except as provided in
paragraph (4), any person who is liable or po-
tentially liable under section 107(a)’’.
(B) By striking ‘‘, during or following any
civil action under section 106 or under section
107(a).’’ and inserting ‘‘in a claim asserted
under section 107(a).’’.
(C) In the second sentence, by striking
‘‘this section’’ and inserting ‘‘section 107(a),
this section,’’.
(D) By striking the sentence beginning
with ‘‘Nothing in this subsection’’.
(2) By amending paragraph (2) to read as fol-
lows:
‘‘(2) SETTLEMENTS.—A person who has re-
solved its liability to the United States in an admin-
istrative or judicially approved settlement shall not
be liable for contribution or any other claims by any
person other than a State acting under section
107(a)(4)(A) (and not as a potentially responsible
party) regarding response actions, response costs, or
damages addressed in the settlement. A person who
has resolved its liability to a State or an Indian tribe
in an administrative or judicially approved settle-
ment shall not be liable for contribution or any other
claims by persons other than the United States Gov-
ernment acting under section 107(a)(4)(A) (and not
as a potentially responsible party) regarding re-
sponse actions, response costs or damages addressed
in the settlement for which the State or Indian tribe
has a claim under this title. Such settlement does
not discharge any other potentially responsible per-
sons unless its terms so provide, but it reduces the
potential liability of such other persons by the
amount of the settlement. The protection afforded
by this subsection shall include protection against
claims, under Federal or State law, that may be as-
serted against the settling party for recovery of re-
sponse costs or damages incurred or paid by another
person, if such costs or damages are addressed in
the settlement, but shall not include protection
against claims based on contractual indemnification
or other express contractual agreements to pay such
costs or damages.’’.
(3) By adding at the end the following new
paragraph:
‘‘(4) LIMITATIONS
ON
CONTRIBUTION
AC-
TIONS.—(A) There shall be no right of contribution
under this subsection in any of the following cir-
cumstances:
‘‘(i) The person asserting the right of con-
tribution has waived the right in a settlement
pursuant to this Act.
‘‘(ii) The person from whom contribution
is sought is not liable under this Act.
‘‘(iii) The person from whom contribution
is sought has entered into a settlement with the
United States pursuant to section 122(g), with
respect to matters addressed in that settlement.
‘‘(B) Any person who commences an action for
contribution shall be liable to the person against
whom the claim of contribution is brought for all
reasonable costs of defending against the claim, in-
cluding all reasonable attorneys’ and expert witness
fees, if—
‘‘(i) the action is barred by subparagraph
(A);
‘‘(ii) the action is brought against a person
who is protected from such suits pursuant to
section 113(f)(2) by reason of a settlement with
the United States; or
(b) EXTENSION
OF
INDEMNIFICATION
AUTHOR-
ITY.—Section 119(c) is amended by adding at the end of
paragraph (1) the following: ‘‘Any such agreement may
apply to claims for negligence arising under Federal law
or under the law of any State or political subdivision of
a State.’’.
(c) 
INDEMNIFICATION
FOR
THREATENED
RE-
LEASES.—Section 119(c)(5) is amended in subparagraph
(A) by inserting ‘‘or threatened release’’ after ‘‘release’’
both places it appears.
(d) CLARIFICATION OF LIABILITY.—Section 119(a)
(42 U.S.C. 9219(a)) is amended by inserting after para-
graph (4) the following new paragraph:
‘‘(5) LIABILITY.—Notwithstanding any other
provision of this Act, any liability of a response ac-
tion contractor under this Act shall be determined
solely in accordance with this section.’’.
(e) LIMITATION
ON
ACTIONS.—Section 119 is
amended by adding at the end the following new sub-
section:
‘‘(g) LIMITATION ON ACTIONS AGAINST RESPONSE
ACTION CONTRACTORS.—No action to recover for any in-
jury to property, real or personal, or for bodily injury or
wrongful death, or any other expenses or costs arising out
of the performance of services under a response action
contract, nor any action for contribution or indemnity for
damages sustained as a result of such injury, shall be
brought against any response action contractor more than
6 years after the completion of work at any site under
such contract. Notwithstanding the preceding sentence,
this section shall not—
‘‘(1) bar recovery for a claim caused by the con-
duct of the response action contractor that is grossly
negligent or that constitutes intentional misconduct;
‘‘(2) affect any right of indemnification that
such response action contractor may have under this
section or may acquire by written agreement with
any party; or
‘‘(3) apply in any State or political subdivision
thereof it the State has adopted a statute of repose
determining the liability of a response action con-
tractor.’’.
(f) EXTENSION RELATING TO SURETIES.—(1) Sec-
tion 119(e)(2) is amended in subparagraph (C) by striking
‘‘and before January 1, 1996,’’.
(2) Section 119(g)(5) is amended by striking out ‘‘,
or after December 31, 1995’’.
(g) EXTENSION OF COVERAGE TO ALL RESPONSE
ACTIONS.—Section 119(e)(1) is amended as follows:
(1) By striking ‘‘carrying out an agreement
under section 106 or 122’’.
(2) By striking ‘‘any remedial action under this
Act at a facility listed on the National Priorities
List, or any removal action under this Act,’’ and in-
serting in lieu thereof ‘‘any response as defined by
section 101(25),’’.
SEC. 207. EXPEDITED FINAL SETTLEMENTS.
Section 122 of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 is
amended as follows:
(1) Subsection (g) is amended by striking ‘‘(g)’’
and all that follows through the end of subparagraph
(A) of paragraph (1) and inserting in lieu thereof
the following:
‘‘(g) EXPEDITED FINAL SETTLEMENT.—
‘‘(1) PARTIES ELIGIBLE FOR EXPEDITED SET-
TLEMENT.—The President shall, as promptly as pos-
sible, offer to reach a final administrative or judicial
settlement with potentially responsible parties who,
in the judgment of the President, meet one or more
of the following conditions for eligibility for an expe-
dited settlement:
‘‘(A) The potentially responsible party’s li-
ability is based solely on paragraph (3) or (4)
of section 107(a) and the party’s individual con-
tribution of hazardous substances at the facility
is de minimis. The contribution of hazardous
substances to a facility by a potentially respon-
sible party is de minimis if both of the following
conditions are met:
‘‘(i) The potentially responsible par-
ty’s volumetric contribution of materials
containing hazardous substances is insig-
nificant in comparison to the total volu-
metric contributions of materials contain-
ing hazardous substances at the facility.
An individual contribution is presumed to
be insignificant if it is one percent or less
of the total volumetric contribution at the
facility, unless the Administrator identifies
a different threshold based on site-specific
factors.
‘‘(ii) The potentially responsible par-
ty’s hazardous substances do not present
toxic or other hazardous effects that are
significantly greater than those of other
hazardous substances at the facility.’’.
(2) Such subsection (g) is further amended by
inserting after subparagraph (B) of paragraph (1)
the following:
‘‘(C)(i) The potentially responsible party’s
liability is based solely on paragraph (3) or (4)
of section 107(a), and the potentially respon-
sible party can demonstrate an inability to pay
response costs.
‘‘(ii) For purposes of this subparagraph,
the following provisions apply:
‘‘(I) In the case of a small business,
the President shall take into consideration
the ability to pay of the business, if re-
quested by the business. The term ‘ability
to pay’ means the President’s reasonable
expectation of the ability of the small busi-
ness to pay its total settlement amount
and still maintain its basic business oper-
ations. Such consideration shall include the
business’s overall financial condition and
demonstrable constraints on its ability to
raise revenues.
‘‘(II) Any business requesting such
consideration shall promptly provide the
President with all relevant information
needed to determine the business’s ability
to pay.
‘‘(III) The business shall demonstrate
the amount of its ability to pay. If the
business employs fewer than 75 employees
or has annual gross revenues of less than
$5,000,000, the President shall perform
any analysis that may be required to dem-
onstrate the business’s ability to pay. The
President, in his discretion, may perform
such analysis for any other party or re-
quire such other party to perform the anal-
ysis.
‘‘(IV) If the President determines that
a small business is unable to pay its total
settlement amount immediately, the Presi-
dent shall consider alternative payment
methods as may be necessary or appro-
priate. The methods to be considered may
include installment payments to be paid
during a period of not to exceed 10 years
and the provision of in-kind services.
‘‘(iii) Any municipality which is a poten-
tially responsible party may submit for consid-
eration by the President an evaluation of the
potential impact of the settlement on essential
services that the municipality must provide, and
the feasibility of making delayed payments or
payments over time. If a municipality asserts
that it has additional environmental obligations
besides its potential liability under this Act,
then the municipality may create a list of the
obligations, including an estimate of the costs
of complying with such obligations.
‘‘(iv) Any municipality which is a poten-
tially responsible party may establish an inabil-
ity to pay through an affirmative showing that
such payment of its liability under this Act
would either—
‘‘(I) create a substantial demonstrable
risk that the municipality would default on
existing debt obligations, be forced into
bankruptcy, be forced to dissolve, or be
forced to make budgetary cutbacks that
would substantially reduce current levels of
protection of public health and safety; or
‘‘(II) necessitate a violation of legal
requirements or limitations of general ap-
plicability concerning the assumption and
maintenance of fiscal municipal obliga-
tions.
‘‘(v) This subparagraph shall not limit or
affect the President’s authority to evaluate any
person’s ability to pay or to enter into settle-
ments with any person based on that person’s
inability to pay.’’.
(3) Paragraphs (2) and (3) of subsection (g)
are amended to read as follows:
‘‘(2) BASIS OF DETERMINATION.—Any person
who enters into a settlement pursuant to this sub-
section shall provide any information requested by
the President or by an allocator in accordance with
section 128 (relating to allocation information-gath-
ering authority) or section 104(e) of this Act. The
determination of whether a person is eligible for an
expedited settlement shall be made on the basis of
all information available to the President at the time
the determination is made. The President’s deter-
mination as to the eligibility of a party that is not
a department, agency, or instrumentality of the
United States for settlement pursuant to this section
shall not be subject to judicial review. If the Presi-
dent determines that a party is not eligible for a set-
tlement pursuant to this section, the President shall
explain the basis for that determination in writing to
any person who requests such a settlement.
‘‘(3) ADDITIONAL FACTORS RELEVANT TO SET-
TLEMENTS
WITH
MUNICIPALITIES.—In any settle-
ment with a municipality pursuant to this Act, the
President may take additional equitable factors into
account in determining an appropriate settlement
amount, including the limited resources available to
that party, and any in-kind services that the party
may provide to support the response action at the
facility. In considering the value of in-kind services,
the President shall consider the fair market value of
those services.’’.
(4) Subsection (g) is further amended by
amending paragraph (5) by inserting the following
before the first sentence: ‘‘A party who enters into
a settlement pursuant to paragraph (1)(A) or (1)(C)
of this subsection shall be deemed to have resolved
its liability under this Act to the United States for
all matters addressed in the settlement.’’.
(5) Subsection (h) is amended as follows:
(A) By amending the heading to read as
follows: ‘‘AUTHORITY TO SETTLE CLAIMS FOR
FINES, CIVIL PENALTIES, PUNITIVE DAMAGES,
AND COST RECOVERY.—’’.
(B) In paragraph (1):
(i) In the first sentence, by striking
‘‘costs incurred’’ and inserting ‘‘past and
future costs incurred or that may be in-
curred’’.
(ii) In the first sentence, by inserting
after ‘‘if the claim has not been referred to
the Department of Justice for further ac-
tion.’’ the following: ‘‘The head of any de-
partment or agency with the authority to
seek fines, civil penalties, or punitive dam-
ages under this Act may consider, com-
promise, and settle claims for any such
fines, civil penalties, or punitive damages
which may otherwise be assessed in civil
administrative or judicial proceedings if
the claim has not been referred to the De-
partment of Justice for further action.’’.
SEC. 208. ALLOCATIONS AT MULTI-PARTY FACILITIES.
Title I (42 U.S.C. 9601 et seq.) is amended by adding
after section 127 the following new section:
‘‘SEC. 128. ALLOCATIONS AT MULTI-PARTY FACILITIES.
‘‘(a) ELIGIBILITY FOR ALLOCATION.—
‘‘(1) MANDATORY
ALLOCATION.—Except as
provided in paragraph (2), the President shall
initiate the allocation process established under this
section for each response action at a non-federally
owned facility listed on the National Priorities List
which is eligible for fair share funding under this
section.
‘‘(2) INELIGIBLE
RESPONSE
ACTIONS.—The
allocation process under this section shall not apply
to any response action for which there has been a
final settlement, decree, or order that determined
the liability and share of responsibility of all poten-
tially responsible parties at the facility before No-
vember 9, 1997.
‘‘(3) SCOPE OF ALLOCATIONS.—Each allocation
under this section shall apply to the costs incurred
on or after November 9, 1997, in performing any
response actions at a facility that have not been
completed before November 9, 1997, unless the allo-
cator determines, in consultation with the President,
that it should apply only to one or more of such re-
sponse actions at the facility.
‘‘(b) MORATORIUM ON LITIGATION AND ENFORCE-
MENT.—
‘‘(1) MORATORIUM ON LITIGATION.—No person
may commence any civil action or assert any claim
under this Act seeking recovery of any response
costs, or contribution toward such costs, in
connection with any response action at a facility for
which the President is required to initiate an alloca-
tion under this section, until 90 days after issuance
of the allocator’s report or of a second or subsequent
report under this section.
‘‘(2) STAY.—If any action or claim referred to
in paragraph (1) is pending on the date of
enactment of this section or on the date by which
the President is required to initiate an allocation,
such action or claim (including any pendent claim
under State law over which a court is exercising ju-
risdiction) shall be stayed until 90 days after the
issuance of the allocator’s report or of a second or
subsequent report under this section, unless the
court determines that a stay will result in manifest
injustice.
‘‘(3) TOLLING OF LIMITATIONS PERIOD.—Any
applicable limitations period with respect to actions
subject to paragraph (1) shall be tolled from the
earlier of—
‘‘(A) the date of listing of the facility on
the National Priorities List, if such listing oc-
curs after the date of enactment of this section;
or
‘‘(B) the date by which the President is re-
quired to initiate the allocation process pursu-
ant to this section;
until 90 days after the issuance of the allocator’s
report or a second or subsequent report under this
section.
‘‘(4) MORATORIUM ON ENFORCEMENT.—After
the date of enactment of this section, the
Administrator shall not issue any order nor require
the Attorney General to maintain any suit under
section 106 to or against any persons at any facility
that is the subject of an allocation under subsection
(a) until 90 days after the issuance of the allocator’s
report or of a second or subsequent report under
this section, except an order requiring the perform-
ance of a response action that is necessary to ad-
dress a release at the facility that constitutes a pub-
lic health or environmental emergency. Nothing in
this subparagraph shall affect the Administrator’s
ability to respond to releases or threatened releases
of hazardous substances pursuant to section 104
prior to such time and seek recovery of such costs
pursuant to section 107.
‘‘(c) ALLOCATION PROCESS.—
‘‘(1) FLEXIBLE
PROCESS.—Each allocation
under this section shall be performed by a neutral
third-party allocator, who shall conduct the alloca-
tions—
‘‘(A) in a fair and impartial manner;
‘‘(B) in an efficient, orderly, time-sensitive
manner; and
‘‘(C) in a manner consistent with section
107(o)(11) that imposes as few burdens as pos-
sible on parties not liable for response costs.
‘‘(2) INITIATION OF ALLOCATION.—The Presi-
dent shall initiate the allocation process for a facility
by performing a comprehensive search for all parties
potentially liable pursuant to section 107(a) at the
facility not later than the date of the commencement
of the remedial investigation at the facility. With re-
spect to a facility eligible for an allocation where a
remedial investigation has been completed as of the
date of enactment of the Superfund Reform Act, the
Administrator shall initiate allocations as expedi-
tiously as possible, but in any event not later than
12 months after such date of enactment.
‘‘(3) RETENTION OF ALLOCATOR.—The Admin-
istrator shall, not later than 90 days after initiating
the allocation process, enter into a contract with a
neutral allocator for the performance of the alloca-
tion. The President, not later than 90 days after the
date of enactment of the Superfund Reform Act,
shall establish by rule a process for the expedited se-
lection and retention by contract at each facility of
a neutral allocator, acceptable both to the potentially
responsible parties and to a representative of the
Fund, to conduct the allocations under this section.
Each contract by which the Administrator retains an
allocator shall authorize the allocator to acquire rea-
sonable support services, including secretarial, cleri-
cal, computer support, legal, and investigative serv-
ices. The President shall not issue any rule that lim-
its the discretion of the allocator in the conduct of
the allocation.
‘‘(4) PARTIES TO THE ALLOCATION.—
‘‘(A) FEDERAL
GOVERNMENT.—The Ad-
ministrator or the Attorney General shall par-
ticipate in the allocation process as the rep-
resentative of the Fund.
‘‘(B) ALLOCATION PARTIES.—
‘‘(i) INITIAL ALLOCATION PARTIES.—
Promptly after the retention of an allo-
cator, the Administrator shall transmit to
the allocator a list of all potentially respon-
sible parties at the facility. Such list shall
specifically designate parties that, in the
judgment of the Administrator based on a
preponderance of the evidence using the
factors set forth in section 107(p), are lia-
ble under section 107(a), notwithstanding
the exemptions to liability set forth in sec-
tion 107(o). For purposes of this section,
such parties shall be known as significant
contributors. Such list shall also designate
the parties whose liability, in the judgment
of the Administrator, is eliminated or lim-
ited pursuant to section 107(o). The Ad-
ministrator shall also transmit to the allo-
cator all information gathered concerning
the involvement of all parties at the facil-
ity.
‘‘(ii) NOMINATED PARTIES.—The allo-
cator shall allow each potentially respon-
sible party on the list transmitted by the
Administrator under clause (i) a period of
60 days to nominate additional potentially
responsible parties. Each such nomination
shall include all available information re-
garding the potential liability of each per-
son named and a recommendation on
whether the person should be considered to
be a significant contributor as defined in
section 107(p). The allocator shall not in-
clude a nominated person on the list of al-
location parties unless it appears from the
nomination, based on a preponderance of
the evidence, that the person is potentially
liable under section 107(a). Any allocation
party that receives a zero share in the
allocator’s final report shall be entitled to
recover three times its costs of participat-
ing in the allocation process (including rea-
sonable attorney’s fees) from any person
that nominated the party. Any allocation
party that is not identified in the
allocator’s final report as a significant con-
tributor shall be entitled to recover its
costs of participating in the allocation
process (including reasonable attorney’s
fees) from any person that recommended
to the allocator that such allocation party
be considered a significant contributor.
‘‘(d) INFORMATION-GATHERING AUTHORITY.—The
allocator may gather such information as necessary to con-
duct a fair and impartial allocation. The allocator may—
‘‘(1) exercise the information-gathering author-
ity of the Administrator under section 104(e);
‘‘(2) in the allocator’s sole discretion, permit
discovery or conduct hearings;
‘‘(3) request that the Attorney General enforce
any information request or subpoena issued by the
allocator and, if the Attorney General does not re-
spond promptly to the request, retain counsel to en-
force the information request or subpoena; and
‘‘(4) request that the Attorney General seek to
impose civil penalties for any failure to submit a
complete and timely answer to an information re-
quest or subpoena or for any unlawful conduct with-
in the allocation process, or criminal penalties under
section 1001 of title 18, United States Code, for any
false or misleading material statements in connec-
tion with the allocation process.
‘‘(e) CONFIDENTIALITY OF INFORMATION.—
‘‘(1) IN GENERAL.—All persons involved in the
allocation shall assure the confidentiality at all times
of all information submitted to the allocator. Infor-
mation submitted to the allocator shall not be—
‘‘(A) disclosed to any person except as may
be required by court order, issued only when
necessary to prevent manifest injustice;
‘‘(B) subject to disclosure to any person
under section 552 of title 5, United States
Code; or
‘‘(C) discoverable or admissible in any
Federal, State, or local judicial or administra-
tive proceeding (if not independently discover-
able or admissible).
‘‘(2) NO WAIVER.—The submission to the allo-
cator of information shall not constitute a waiver of
any privilege under any Federal or State law or rule.
‘‘(f) EQUITABLE FACTORS FOR ALLOCATION.—
‘‘(1) FACTORS.—The allocator shall prepare a
nonbinding allocation of percentage shares of re-
sponsibility to each allocation party and to the fair
share funding (as defined in subsection (g)), in ac-
cordance with the provisions of this section and
without regard to any theory of joint and several li-
ability, based on the following:
‘‘(A) The degree to which the allocation
party caused, contributed to, or consented to
the release or threat of release of hazardous
substances at the facility.
‘‘(B) The amount of hazardous substances
contributed by each allocation party.
‘‘(C) The degree of toxicity of the haz-
ardous substances contributed by each alloca-
tion party.
‘‘(D) The mobility of the hazardous
substances contributed by each allocation party.
‘‘(E) The degree of involvement of each
allocation party in the generation, transpor-
tation, treatment, storage, or disposal of the
hazardous substances it contributed.
‘‘(F) The degree of care exercised by each
allocation party with respect to the hazardous
substances it contributed, taking into account
the characteristics of the hazardous substances.
‘‘(G) The cooperation of each allocation
party in performing any response action and in
providing complete and timely information to
the allocator.
‘‘(H) Such other equitable factors as the
allocator determines are appropriate.
‘‘(2) PRESUMPTION.—The allocator shall pre-
sume that the parties designated by the Adminis-
trator pursuant to subsection (c)(4)(B) as parties
whose liability is eliminated under section 107(o) are
not significant contributors. Such presumption is re-
buttable by a preponderance of the evidence.
‘‘(g) FAIR SHARE FUNDING.—For each response ac-
tion that is the subject of an allocation under this section,
the allocator shall determine the share of liability, if any,
to be allocated to the Fund for that response action. Such
amount shall be referred to as the ‘fair share funding’ of
that response action. The fair share funding shall consist
of the sum of following amounts:
‘‘(1) The amount attributable to the aggregate
share of liability that the allocator determines to be
attributable to insolvent, defunct, or unidentifiable
parties that are not affiliated with any viable alloca-
tion party.
‘‘(2) The amount that is the difference be-
tween—
‘‘(A) the amount attributable to the aggre-
gate share of liability that the allocator deter-
mines to be attributable to allocation parties
who have resolved their liability to the United
States for the response action; and
‘‘(B) the amount actually paid by those
parties to the United States to resolve their li-
ability.
‘‘(3) The amount attributable to the aggregate
share of liability that the allocator determines to be
attributable to persons (known or unknown) who are
entitled to an exemption from liability under section
107(o) or any other provision of this Act.
‘‘(h) ALLOCATOR’S REPORT.—Not later than 24
months after the date on which the Administrator enters
into a contract to retain an allocator, the allocator shall
provide a written final allocation report to the Adminis-
trator and the allocation parties specifying the percentage
share of responsibility of each allocation party (without
regard to section 107(o)) and of the fair share funding.
The allocator shall separately list those parties that are
significant contributors as defined in section 107(p) (and
therefore remain liable for response costs), and those par-
ties that are not liable pursuant to section 107(o). Before
issuing the final allocation report, the allocator shall allow
each allocation party to comment on a draft allocation re-
port. The allocator’s actions shall not be subject to judicial
review.
‘‘(i) COMPLETE ALLOCATION BY THE PARTIES.—The
allocator shall promptly adopt, in lieu of issuing any allo-
cation report, any agreement among some or all of the
allocation parties that allocates 80 percent of the recover-
able costs of a response action at a facility to the signato-
ries, if the settlement contains a waiver of all claims
against all other allocation parties for contribution toward
such costs.
‘‘(j) REJECTION OF ALLOCATION REPORT.—
‘‘(1) REJECTION.—The Administrator and the
Attorney General may jointly reject a report issued
by an allocator only if the Administrator and the At-
torney General jointly publish, not later than 90
days after the Administrator receives the report, a
written determination that—
‘‘(A) no rational interpretation of the facts
before the allocator, in light of the factors re-
quired to be considered, would form a reason-
able basis for the shares assigned to the parties;
or
‘‘(B) the allocation process was directly
and substantially affected by bias, procedural
error, fraud, or unlawful conduct.
‘‘(2) FINALITY.—A report issued by an allo-
cator may not be rejected after the date that is 90
days after the date on which the United States ac-
cepts a settlement offer (excluding an expedited set-
tlement under section 122(g)) based on the alloca-
tion.
‘‘(3) DELEGATION.—The authority to make a
determination under this subsection may not be dele-
gated to any officer or employee below the level of
an Assistant Administrator or an Assistant Attorney
General with authority for implementing this Act.
‘‘(k) SECOND AND SUBSEQUENT ALLOCATIONS.—If
a report is rejected under subsection (j), the allocation
parties shall select an allocator to perform, on an expe-
dited basis, a new allocation based on the same record
available to the previous allocator. The moratorium and
tolling provisions of subsection (b) shall then be extended
until 180 days after the date of the issuance of any second
or subsequent allocation report.
‘‘(l) SETTLEMENTS BASED ON ALLOCATIONS.—
‘‘(1) CASH-OUT SETTLEMENTS.—Subject to the
Administrator’s authority pursuant to subsection
(m), any allocation party shall be entitled to resolve
its liability to the United States for response actions
subject to an allocation if, not later than 90 days
after the date of issuance of a report by the allo-
cator, the party—
‘‘(A) offers to settle with the United States
based on its allocated share as specified by the
allocator; and
150
for costs incurred at a facility for which the State
has delegated authority to take such action pursuant
to subsection (a) shall be deposited into such
Superfund. The Administrator may take actions
under section 107 to recover response costs at such
a facility. In any action commenced in a court of the
United States by a State to recover costs described
in this paragraph, the Administrator may intervene
as a matter of right.
‘‘(c) FEDERAL RESPONSIBILITIES
AND AUTHORI-
TIES.—
‘‘(1) REVIEW OF USE OF FUNDS.—The Admin-
istrator shall review any certification submitted by a
Governor pursuant to subsection (b)(1). If the Ad-
ministrator finds that funds were used in a manner
that is inconsistent with the provisions of this Act,
the Administrator shall notify the Governor in writ-
ing. If the Governor fails to demonstrate promptly
after receiving such notice that the Administrator’s
finding is in error, or that the inconsistency is being
corrected, the Administrator may request reimburse-
ment of such sums as the Administrator has found
to be used in a manner inconsistent with this Act or
bring an action in the appropriate United States dis-
trict court to recover the amount of funds used in