127
‘‘(D) The person exercised appropriate care
with respect to hazardous substances found at the
facility by taking reasonable steps to stop on-going
releases, prevent threatened future releases of haz-
ardous substances, and prevent or limit human or
natural resource exposure to hazardous substances
previously released into the environment.
‘‘(E) The person provides full cooperation, as-
sistance, and facility access to persons authorized to
conduct response actions at the facility, including
the cooperation and access necessary for the installa-
tion, integrity, operation, and maintenance of any
complete or partial response action at the facility.
‘‘(F) The person is not affiliated with any other
person liable for response costs at the facility,
through any direct or indirect familial relationship,
or any contractual, corporate, or financial relation-
ship other than that created by the instruments by
which title to the facility is conveyed or financed.
‘‘(s) PROSPECTIVE
PURCHASER
AND
WINDFALL
LIEN.—(1) In any case in which there are unrecovered
response costs at a facility for which an owner of the facil-
ity is not liable by reason of subsection (r), and the condi-
tions described in paragraph (2) are met, the United
128
States shall have a lien upon such facility for such unre-
covered costs. Such lien—
‘‘(A) shall not exceed the increase in fair mar-
ket value of the property attributable to the response
action at the time of a subsequent sale or other dis-
position of property;
‘‘(B) shall arise at the time costs are first in-
curred by the United States with respect to a re-
sponse action at the facility;
‘‘(C) shall be subject to the requirements for
notice and validity established in paragraph (3) of
subsection (l); and
‘‘(D) shall continue until the earlier of satisfac-
tion of the lien or recovery of all response costs in-
curred at the facility.
‘‘(2) The conditions referred to in paragraph (1) are
the following:
‘‘(A) A response action for which there are un-
recovered costs is carried out at the facility.
‘‘(B) Such response action increases the fair
market value of the facility above the fair market
value of the facility that existed within 6 months be-
fore the response action was taken.’’.
129
SEC. 306. CONTIGUOUS PROPERTIES.
Section 107 (42 U.S.C. 9607) is further amended by
adding at the end the following new subsection:
‘‘(u) CONTIGUOUS
PROPERTIES.—(1) A person
(other than the United States or a department, agency,
or instrumentality of the United States) who owns or oper-
ates real property that is contiguous to or otherwise simi-
larly situated with respect to real property on which there
has been a release or threatened release of a hazardous
substance and that is or may be contaminated by such
release shall not be liable under subsection (a) (1) or (2)
by reason of such ownership or operation solely by reason
of such contamination if such person—
‘‘(A) did not cause, contribute to, or consent to
the release or threatened release;
‘‘(B) provides full cooperation, assistance, and
facility access to persons authorized to conduct re-
sponse actions at the facility, including the coopera-
tion and access necessary for the installation, integ-
rity, operation, and maintenance of any complete or
partial response action at the facility; and
‘‘(C) is not affiliated with any other person lia-
ble for response costs at the facility, through any di-
rect or indirect familial relationship, or any contrac-
tual, corporate, or financial relationship.
130
‘‘(2) The President may issue an assurance of no en-
forcement action under this Act to any such person and
may grant any such person protection against cost recov-
ery and contribution actions pursuant to section 113(f)(2).
Such person may also petition the President to exclude
from the description of a National Priorities List site such
contiguous real property, if such property is or may be
contaminated solely by ground water that flows under
such property and is not used as a source of drinking
water. The President may grant such a petition pursuant
to such procedures as he deems appropriate.’’.
TITLE IV—NATURAL RESOURCE
DAMAGES
SEC. 401. NATURAL RESOURCES DEFINED.
Section 101(16) (42 U.S.C. 9601(16)) is amended by
striking ‘‘belonging to’’ and all that follows before the pe-
riod at the end.
SEC. 402. CONSULTATION WITH NATURAL RESOURCES
TRUSTEES.
Section 104(c)(2) is amended by inserting ‘‘and the
affected natural resource trustee or trustees’’ after ‘‘State
or States’’.
131
SEC. 403. LIABILITY.
Section 107(f) (42 U.S.C. 9607(f)) is amended by
striking ‘‘(f)(1)’’ and all that follows through the period
at the end of paragraph (1) and inserting the following:
‘‘(f) NATURAL RESOURCES LIABILITY.—
‘‘(1) LIABILITY.—
‘‘(A) 
LIABILITY
TO
UNITED
STATES,
STATES, AND INDIAN TRIBES.—Except as pro-
vided by subparagraph (B), in the case of an
injury to, destruction of, or loss of natural re-
sources under subsection (a)(2)(C), liability
shall be—
‘‘(i) to the United States Government,
for natural resources belonging to, man-
aged by, or held in trust by the United
States Government or selected for transfer
(but not transferred on or before the date
of the injury, destruction, or loss) to an
Alaska Native Corporation as part of the
acreage entitlement of the Corporation
under the Alaska Native Claims Settlement
Act (43 U.S.C. 1601 et seq.);
‘‘(ii) to a State, for natural resources
within the State belonging to, managed by,
or held in trust by the State or allocated
132
to the State pursuant to an interstate com-
pact to which the State is a signatory; and
‘‘(iii) to an Indian tribe, for natural
resources belonging to, managed by, grant-
ed rights to by treaty, or held in trust by
the tribe, or belonging to a member of
such tribe if such resources are subject to
a trust restriction on alienation; and
‘‘(B) EXCEPTIONS TO LIABILITY REQUIRE-
MENTS.—No liability to the United States, a
State, or an Indian tribe, shall be imposed
under subsection (a)(2)(C) where the party
sought to be charged has demonstrated that the
injury to, destruction of, or loss of natural re-
sources complained of were specifically identi-
fied as an irreversible and irretrievable commit-
ment of natural resources in an environmental
impact statement, or other comparable environ-
ment analysis, and the decision to grant a per-
mit or license authorizes such commitment of
natural resources, and the facility or project
was otherwise operating within the terms of its
permit or license, so long as, in the case of in-
jury to, destruction of, or loss of an Indian
tribe occurring pursuant to a Federal permit or
133
license, the issuance of that permit or license
was not inconsistent with the fiduciary duty of
the United States with respect to the Indian
tribe.
‘‘(C) PUBLIC TRUSTEES OF NATURAL RE-
SOURCES.—The President, the authorized rep-
resentative of a State, or the authorized rep-
resentative of an Indian tribe shall act on be-
half of the public or the Indian tribe, as appro-
priate, as trustee for a natural resource to re-
cover for injury to, destruction of, or loss of
natural resources under this section.’’.
SEC. 404. DESIGNATION OF TRUSTEES.
(a) DESIGNATION
OF
INDIAN
TRIBE.—Section
107(f)(2) (42 U.S.C. 9607(f)(2)) is amended—
(1) by striking the paragraph heading and in-
serting the following: ‘‘DESIGNATION OF FEDERAL,
STATE, AND INDIAN TRIBE.—’’; and
(2) by amending subparagraph (C) to read as
follows:
‘‘(C) INDIAN TRIBE.—The elected council
or elected head official of an Indian tribe shall
designate Indian tribe officials who may act on
behalf of the Indian tribe as trustees for natu-
ral resources under this Act and shall notify the
134
President of such designations. Such Indian
tribe officials shall assess damages to natural
resources for the purposes of this Act for those
natural resources under their trusteeship.’’.
(b) RELATIONSHIP
AMONG
TRUSTEES.—Section
107(f)(2) (42 U.S.C. 9607(f)(2)) is further amended by
adding at the end the following:
‘‘(E) DESIGNATION
OF
LEAD
DECISION-
MAKING TRUSTEE.—
‘‘(i) IN GENERAL.—If more than one
trustee is designated for a natural resource
under this paragraph, the following trustee
may elect to serve as the lead decisionmak-
ing trustee for the resource:
‘‘(I) The United States, for re-
sources exclusively belonging to or
held in trust by the United States or
for which the United States exercises
primary management under the En-
dangered Species Act of 1973 (16
U.S.C. 1531 et seq.), the Magnuson-
Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et
seq.), the Migratory Bird Treaty Act
(16 U.S.C. 703 et seq.), the Marine
135
Mammal Protection Act of 1972 (16
U.S.C. 1631 et seq.), the Wild Free-
Roaming Horses and Burros Act (16
U.S.C. 1331 et seq.), or the Bald
Eagle Protection Act (16 U.S.C. 668
et seq.).
‘‘(II) An Indian tribe, for re-
sources belonging exclusively to such
tribe or for which the tribe is the pri-
mary manager pursuant to a treaty.
‘‘(III) A State, if the State is a
trustee for the resource and sub-
clauses (I) and (II) do not apply.
‘‘(ii) RESPONSIBILITY OF LEAD DECI-
SIONMAKING
TRUSTEE.—A lead decision-
making trustee for a resource designated
under this subparagraph shall be respon-
sible for determining the measurement of
damages for the resource after soliciting
and considering the views of the other
trustees for the resource.
‘‘(iii) LIMITATION.—A trustee may
not be designated as a lead decisionmaking
trustee for a resource under this subpara-
graph if the trustee is a potentially respon-
136
sible party with respect to damages to the
resource.’’.
SEC. 405. DETERMINATION OF CAUSATION.
Section 107(f) (42 U.S.C. 9607(f)) is amended by
adding at the end the following:
‘‘(3) DETERMINATION OF CAUSATION.—Any de-
termination of whether injury to, destruction of, or
loss of a natural resource results from a release
under subsection (a)(2)(C) shall be made in accord-
ance with the Restatement (Second) of Torts, as in
effect on the date of the enactment of this para-
graph.’’.
SEC. 406. MEASURE OF DAMAGES.
Section 107(f) (42 U.S.C. 9607(f)) is further amend-
ed by adding at the end the following:
‘‘(4) MEASURE OF DAMAGES.—
‘‘(A) IN GENERAL.—The measure of dam-
ages to a natural resource under subsection
(a)(2)(C) shall be limited to the following:
‘‘(i) Reasonable costs of restoration of
the resource.
‘‘(ii) The reasonable cost of temporary
restoration measures.
‘‘(iii) The costs of reasonable assess-
ment of damages to the resource.
137
‘‘(B) NONUSE VALUES.—There shall be no
recovery under this Act based on non-use val-
ues.
‘‘(C) CONTINGENT VALUATION METHODOL-
OGY.—Contingent valuation methodology and
other economic polling techniques shall not be
used to value either lost natural resource serv-
ices or any particular restoration alternative.’’.
SEC. 407. DAMAGE ASSESSMENTS.
Section 107(f) (42 U.S.C. 9607(f)) is further amend-
ed by adding at the end the following:
‘‘(5) DAMAGE ASSESSMENTS.—
‘‘(A) IN GENERAL.—To the extent prac-
ticable, a Federal, State, or Indian trustee des-
ignated under this subsection shall base any
measure of damages under paragraph (4) with
respect to a site on an assessment of the spe-
cific conditions and restoration requirements at
the site.
‘‘(B) ASSESSMENT
REQUIREMENTS.—Any
assessment used by a trustee under subpara-
graph (A) shall be based on, and performed in
accordance with, generally accepted scientific
and technical standards, literature, and meth-
138
odologies that ensure the validity, reliability,
and cost-effectiveness of assessment results.’’.
SEC. 408. SELECTION OF RESTORATION ALTERNATIVES.
Section 107(f) (42 U.S.C. 9607(f)) is further amend-
ed by adding at the end the following:
‘‘(7) SELECTION
OF
RESTORATION
ALTER-
NATIVES.—
‘‘(A) IN GENERAL.—In selecting a range of
possible restoration alternatives, a Federal,
State, or Indian tribe trustee, designated under
this subsection shall select reasonable measures
that are feasible and cost-effective.
‘‘(B) PREFERENCE.—A trustee may give
preference to any alternatives selected under
subparagraph (A) that meet the following re-
quirements:
‘‘(i) Notwithstanding the limitations
in paragraph (4), the incremental costs are
justified by the incremental benefits.
‘‘(ii) Restoration is achieved in a time-
ly manner.
‘‘(C) REPLACEMENT.—With the concur-
rence of the affected trustees, any restoration
alternative selected may include temporary re-
placement of the services, or some portion
139
thereof, which would otherwise have been pro-
vided by the injured natural resources.’’.
SEC. 409. USE OF SUMS RECOVERED BY TRUSTEES.
Section 107(f) (42 U.S.C. 9607(f)) is further amend-
ed by adding at the end the following:
‘‘(8) USE
OF
SUMS
RECOVERED
BY
TRUST-
EES.—
‘‘(A) USE OF SUMS RECOVERED BY THE
UNITED
STATES.—Damages recovered by the
United States Government as a trustee under
this subsection shall be retained by the trustee,
without further appropriation, for use only to
restore, replace, or acquire the equivalent of
such natural resources.
‘‘(B) USE
OF
SUMS
RECOVERED
BY
A
STATE, OR INDIAN TRIBE.—Damages recovered
by a State or Indian tribe as a trustee under
this subsection shall be available for use only to
restore, replace, or acquire the equivalent of
such natural resources by the State or Indian
tribe.’’.
SEC. 410. RELATION TO OTHER LAWS; DAMAGES OCCUR-
RING BEFORE DECEMBER 11, 1980.
Section 107(f) (42 U.S.C. 9607(f)) is further amend-
ed by adding at the end the following:
140
‘‘(9) RELATION TO OTHER LAWS.—
‘‘(A) DOUBLE
RECOVERY
PROHIBITED.—
Any trustee who receives compensation for in-
jury to, destruction of, or loss of a natural re-
source pursuant to this section shall be pre-
cluded from recovering compensation for the in-
jury to, destruction of, or loss of the same natu-
ral resource pursuant to any other State or
Federal law. Any trustee who receives com-
pensation for injury to, destruction of, or loss
of a natural resource pursuant to any other
Federal or State law shall be precluded from re-
ceiving compensation for injury to, destruction
of, or loss of the same natural resource as pro-
vided in this section.
‘‘(B) DOUBLE
LIABILITY
PROHIBITED.—
Any person who pays compensation to one or
more parties for injury to, destruction of, or
loss of a natural resource pursuant to this sec-
tion shall not be required to pay compensation
for injury to, destruction of, or loss of the same
natural resource pursuant to this Act or any
other State or Federal law. Any person who
pays compensation for injury to, destruction of,
or loss of a natural resource pursuant to any
141
other Federal or State law shall not be required
to pay compensation for injury to, destruction
of, or loss of the same natural resource as pro-
vided in this section.
‘‘(C) PERSON
DEFINED.—In this para-
graph, the term ‘person’ has the meaning given
such term by section 101 and also includes an
Indian tribe.
‘‘(10) DAMAGES OCCURRING BEFORE DECEM-
BER 11, 1980.—There shall be no recovery for in-
jury to, destruction of, or loss of natural resources
under the authority of subsection (a)(2)(C) where
such injury, destruction, or loss and the release of
a hazardous substance from which such injury, de-
struction, or loss resulted have occurred wholly be-
fore December 11, 1980.’’.
SEC. 411. RESTORATION.
Section 107(f) (42 U.S.C. 9607(f)) is further amend-
ed by adding at the end the following:
‘‘(11) RESTORATION.—
‘‘(A) RESTORATION
GOAL
DEFINED.—An
injury to, destruction of, or loss of natural re-
sources, for the purposes of evaluating damages
and identifying restoration alternatives under
this subsection or section 106, shall mean a
142
measurable adverse change in a population or
community of organisms that exceeds the natu-
ral variability of the population or community
of organisms to an ecologically significant de-
gree, as a result of a release of a hazardous
substance. The goal of any restoration shall be
to restore injured natural resources to their
baseline condition for the reasonably anticipated
use of the natural resources as measured by the
consumptive and nonconsumptive services pro-
vided by such resources. For purposes of this
subparagraph:
‘‘(i) The term ‘consumptive services’
means the use of a natural resource by the
public that includes activities such as fish-
ing and trapping in which resources are
harvested.
‘‘(ii) The term ‘nonconsumptive serv-
ices’ means the physical use of the re-
source by the public in a manner that does
not reduce the stock of the resource. Such
uses include activities related to visitation,
such as hiking, wildlife viewing, and pho-
tography, as well as ecological services
such as flood control and filtration.
143
‘‘(B) MEASUREMENT OF RESTORATION OF
CERTAIN RESOURCES.—
‘‘(i) RESOURCES PROTECTED UNDER
WILDERNESS ACT OR MARINE PROTECTION,
RESEARCH, AND
SANCTUARIES
ACT
OF
1972.—For purposes of this subsection,
restoration of an injured, damaged, or lost
biological resource that is protected under
the Wilderness Act (16 U.S.C. 1131 et
seq.), or that is located in a marine sanc-
tuary designated under the Marine Protec-
tion, Research, and Sanctuaries Act of
1972 (16 U.S.C. 1431 et seq.), may be
measured by reinstatement of populations
of such resource to the condition that
would exist had the release not occurred.
‘‘(ii) RESOURCES PROTECTED UNDER
ENDANGERED SPECIES ACT OF 1973.—For
purposes of this subsection, restoration of
a resource that is protected under the En-
dangered Species Act of 1973 (16 U.S.C.
1531 et seq.) may be measured by compli-
ance with existing or planned recovery
plans and requirements developed for such
144
resource under section 1533(f) of such
Act.’’.
SEC. 412. USE OF MEDIATION.
Section 122(f) (42 U.S.C. 9622(f)) is amended by
adding at the end the following new paragraph:
‘‘(7) USE OF MEDIATION.—Any Federal natural
resource trustee, State natural resource trustee, or
Indian tribe seeking damages for injury to, destruc-
tion of, or loss of natural resources in accordance
with subsections (a) and (f) of section 107 may initi-
ate mediation for such claim with any potentially re-
sponsible parties by means of the mediation proce-
dure or other alternative dispute resolution method
recognized by the district court in which the action
is filed. Such mediation shall be initiated not later
than 120 days after the filing of such action. Such
120-day period may be extended upon agreement of
all parties.’’.
SEC. 413. APPLICABILITY.
(a) IN GENERAL.—The amendments made by this
title shall not apply to an action to recover natural re-
source damages under section 107(f) in which a trial has
begun before July 1, 1997, or in which a final settlement,
decree, or order has been issued before such date.
145
(b) EXPIRED ACTIONS UNDER SECTION 113(g)(1).—
The amendments made by this title shall not be construed
to affect any action for damages that has expired under
section 113(g)(1) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.), as in effect on the day before the
date of the enactment of this Act.
TITLE V—STATE ROLE
SEC. 501. STATE DELEGATION AT NPL FACILITIES.
(a) STATE DELEGATION.—Title I of the Comprehen-
sive Environmental Response, Compensation, and Liabil-
ity Act of 1980 (42 U.S.C. 9601 et seq.) is amended—
(1) by inserting after the heading for title I the
following:
‘‘Subtitle A—General Provisions’’;
and
(2) by adding at the end the following new sub-
title:
‘‘Subtitle B—State Role
‘‘SEC. 151. STATE DELEGATION AT NPL FACILITIES.
‘‘(a) STATE AUTHORITY.—
‘‘(1) ACTIONS FOR WHICH AUTHORITY MAY BE
DELEGATED.—The Administrator may, in accord-
ance with this section, delegate authority to a State
to take any or all of the following actions at any or
146
all facilities within the State that are listed on the
National Priorities List:
‘‘(A) Response actions under section 104.
‘‘(B) Response actions under section
106(a) and enforcement under section 106(b).
‘‘(C) Cost recovery actions under section
107.
‘‘(D) Authority under subsections (e) and
(h) (other than (h)(2)) of section 120.
‘‘(E) Remedy selections under section 121.
‘‘(F) Settlements under section 122.
‘‘(G) Allocations under section 128.
‘‘(H) Community participation activities
under section 117, other than the making of
grants for technical assistance under section
117(e).
‘‘(2) APPLICATION FOR STATE AUTHORITY.—
The Governor of a State may submit to the Admin-
istrator an application for State delegation of one or
more of the authorities listed in paragraph (1) with
respect to one or more facilities, and may seek
amendments to its delegated authority to add or de-
lete facilities or actions for which authority is dele-
gated. Any such application shall contain the follow-
ing:
147
‘‘(A) A list of facilities on the National
Priorities List within the State for which au-
thority is requested and a list of actions for
which authority is requested.
‘‘(B) A certification that the State has
adequate legal authority to request, accept, ad-
minister, and enforce the authority requested.
‘‘(C) A certification that the State has the
financial and personnel resources, organization,
and expertise to administer and enforce the au-
thority requested.
‘‘(3) APPROVAL AND DISAPPROVAL OF APPLICA-
TION.—
‘‘(A) IN GENERAL.—On the last day of the
180-day period beginning on the date the Ad-
ministrator receives an application made in ac-
cordance with paragraph (2), the application is
deemed to be approved unless within such 180-
day period the Administrator disapproves the
application, or a specified portion of the appli-
cation, by making one of the following findings:
‘‘(i) A finding that the State does not
have adequate legal authority to request,
accept, administer, or enforce the authority
requested.
148
‘‘(ii) A finding that the State does not
have the financial and personnel resources,
organization, or expertise to administer
and enforce the authority requested.
‘‘(B) TERMS
AND
CONDITIONS
PROHIB-
ITED.—The Administrator may not place any
terms or conditions on a delegation made pur-
suant to this section, except that the Adminis-
trator may prescribe requirements to ensure
timely and effective recovery of response costs
paid by funds from the Hazardous Substance
Superfund established under subchapter A of
chapter 98 of the Internal Revenue Code of
1986.
‘‘(C) EXPLANATION AND RESUBMITTAL.—
If the Administrator disapproves an application
by making one of the findings in clause (i) or
(ii) of subparagraph (A), the Administrator
shall notify the Governor in writing of the dis-
approval and explain the basis for such finding
within 180 days after receiving the application.
A notification under this subparagraph is final
agency action for purposes of judicial review. A
Governor may submit a revised application any
time after receiving notice of disapproval.
149
‘‘(b) STATE RESPONSIBILITIES AND AUTHORITIES.—
‘‘(1) CERTIFICATION OF USE OF FUNDS.—Not
later than one year after a State receives funds pur-
suant to subsection (d), and annually thereafter for
as long as the State receives such funds, the Gov-
ernor of the State shall submit to the Administrator
the following:
‘‘(A) A certification that the State has
used the funds in accordance with the require-
ments of this section and this Act.
‘‘(B) Information describing the manner in
which the State has used the funds.
‘‘(C) Such other information about the use
of the funds as the Administrator considers
necessary.
‘‘(2) COST RECOVERY.—All response costs that
are paid by the State using State funds and that are
recovered under section 107 by a State for costs in-
curred at a facility for which the State has delegated
authority to take such action pursuant to subsection
(a) shall be retained by the State. All response costs
that are paid by funds from the Hazardous Sub-
stance Superfund established under subchapter A of
chapter 98 of the Internal Revenue Code of 1986
and that are recovered under section 107 by a State
151
a manner inconsistent with the provisions of this
Act.
‘‘(2) WITHDRAWAL OF DELEGATION.—
‘‘(A) CERTIFIED STATES.—If the Adminis-
trator finds that a State does not meet the re-
quirements for a delegation of authority under
subsection (a)(2), or is exercising such author-
ity in a manner inconsistent with the require-
ments of this Act, the Administrator may with-
draw all of the State’s delegated authority after
providing notice and an opportunity to correct
deficiencies pursuant to subparagraph (B). If
the Administrator finds that the State is failing
to meet the cost recovery requirements pre-
scribed by the Administrator pursuant to sub-
section (a)(3)(C), the Administrator may with-
draw all of the cost recovery authority delegated
to the State under subsection (a)(1)(C).
‘‘(B) NOTICE AND OPPORTUNITY TO REC-
TIFY.—The Administrator shall notify a State
in writing prior to withdrawing authority dele-
gated pursuant to subsection (a). If the State
has not addressed the deficiencies listed in the
Administrator’s notification in a timely manner
152
after receiving the notification, the authority
may be withdrawn.
‘‘(3) DELISTING
FROM
NATIONAL
PRIORITIES
LIST.—(A) Upon receipt of a written statement de-
scribed in subparagraph (B) from a Governor with
respect to a facility, the Administrator shall publish
a notice in the Federal Register to delist the facility
(or portion thereof) from the National Priorities
List.
‘‘(B) The written statement referred to in sub-
paragraph (A) is a written statement from a Gov-
ernor with respect to a facility stating that—
‘‘(i) no further action to address the con-
tamination at the facility (or portion thereof) is
necessary to protect human health and the envi-
ronment; or
‘‘(ii) response action has been completed in
accordance with an enforceable agreement to
clean up the facility or cleanup is proceeding at
the facility under the Solid Waste Disposal Act.
‘‘(4) PROHIBITED ACTIONS.—Except upon re-
quest from the State or as provided in subsections
(b)(4) and (d), the Administrator is prohibited from
taking any actions under sections 104, 106, 107,
117 (other than 117(e)), 121, 122, and section 128
153
(relating to allocations), and under subsections (e)
and (h) (other than subsection (h)(2)) of section
120, at any facility on the National Priorities List
for which authority to take such actions has been
delegated to a State under this section.
‘‘(d) RELATIONSHIP
TO
COOPERATIVE
AGREE-
MENTS.—Nothing in this section shall affect the authority
of the Administrator under section 104(d)(1) of this Act
to enter into a cooperative agreement with a State or polit-
ical subdivision or Indian Tribe.’’.
(b) CONFORMING AMENDMENT.—Section 106(a) of
such Act is amended by inserting after ‘‘Attorney General
of the United States’’ the following: ‘‘(or, in the case of
a State delegation under section 151, the appropriate
State official)’’.
SEC. 502. STATE AUTHORIZATION AT NPL FACILITIES.
Subtitle B of title I of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980, as added by section 501, is further amended by add-
ing at the end the following new section:
‘‘SEC. 152. STATE AUTHORIZATION AT NPL FACILITIES.
‘‘(a) STATE AUTHORITY.—
‘‘(1) ACTIONS FOR WHICH A STATE MAY RE-
CEIVE AUTHORIZATION.—The Administrator may, in
accordance with this section, authorize a State to
154
implement the State’s hazardous substance response
program in lieu of the response action authorities of
this Act at any or all of the facilities within the
State that are listed on the National Priorities List.
‘‘(2) APPLICATION
FOR
STATE
AUTHORIZA-
TION.—The Governor of a State may submit to the
Administrator an application for State authorization
with respect to one or more facilities, and may seek
amendments to its authorization to add or delete fa-
cilities. Any such application shall contain the fol-
lowing:
‘‘(A) A list of facilities on the National
Priorities List within the State for which au-
thorization is requested.
‘‘(B) A certification that the State has
adequate legal authority, financial and person-
nel resources, organization, and expertise to ad-
minister and enforce State hazardous substance
response program at the facilities for which au-
thorization is requested.
‘‘(C) A certification that the State hazard-
ous substance response program for which au-
thorization is requested, or any Federal hazard-
ous response authority delegated under section
121, will not use Federal funds to relieve from
155
liability for a release any person who is liable
under section 107.
‘‘(D) A certification that response actions
taken by the State under the authorization will
protect public health and the environment.
‘‘(3) APPROVAL AND DISAPPROVAL OF APPLICA-
TION.—
‘‘(A) IN GENERAL.—On or before the last
day of the 180-day period beginning on the date
the Administrator receives an application made
in accordance with paragraph (2), the Adminis-
trator shall approve or disapprove the applica-
tion by making one of the following findings:
‘‘(i) A finding that the State does not
have the financial and personnel resources,
organization, or expertise to administer or
enforce the State hazardous substance re-
sponse program at the facilities for which
authorization is requested.
‘‘(ii) A finding that the State’s imple-
mentation of the hazardous substance re-
sponse authority would use Federal funds
to relieve from liability for a release any
person who is liable under section 107.
156
‘‘(iii) A finding that response actions
taken by the State under the authorization
will not protect public health and the envi-
ronment.
‘‘(B) PRESUMPTIVE APPROVAL.—(i) Not-
withstanding subparagraph (A), if a State sub-
mits an application that includes, in addition to
the information in paragraph (2), a certification
that it meets any 3 of the criteria set forth in
clause (ii), the application is deemed to be ap-
proved unless within the 180-day period re-
ferred to in subparagraph (A) the Adminis-
trator makes a finding that—
‘‘(I) the application is incomplete or
inaccurate;
‘‘(II) the State does not meet 3 of the
criteria set forth in clause (ii); or
‘‘(III) the State’s implementation of
the hazardous substance response author-
ity would use Federal funds to relieve from
liability for a release a person who is po-
tentially liable under section 107.
‘‘(ii) The criteria referred to in clause (ii)
are the following:
157
‘‘(I) A State cleanup program to re-
mediate hazardous waste sites has been in
effect for at least 10 years before the date
of submission of an application by the
State under paragraph (2).
‘‘(II) Since the date on which a State
cleanup program to remediate hazardous
waste sites went into effect, the State has
expended or obligated at least $10,000,000
from its State cleanup fund or other State
source of cleanup funding (including direct
appropriations).
‘‘(III) The State cleanup program has
at least 100 full-time equivalent employees.
‘‘(IV) At least 200 response actions at
facilities not listed on the National Prior-
ities List have been performed under the
State cleanup program.
‘‘(V) There are located in the State at
least 100 non-Federal facilities listed on
the National Priorities List, or at least 6
non-Federal facilities listed on the Na-
tional Priorities List per million State resi-
dents.
158
‘‘(C) TERMS
AND
CONDITIONS
PROHIB-
ITED.—The Administrator may not place any
terms or conditions on an authorization made
pursuant to this section, except that the Admin-
istrator may prescribe requirements to ensure
timely and effective recovery by the State of re-
sponse costs paid by funds from the Hazardous
Substance Superfund established under sub-
chapter A of chapter 98 of the Internal Reve-
nue Code of 1986.
‘‘(D) EXPLANATION AND RESUBMITTAL.—
If the Administrator disapproves an application
by making one of the findings in clause (i), (ii),
or (iii) of subparagraph (A), the Administrator
shall notify the Governor in writing of the dis-
approval and explain the basis for such finding
within 180 days after receiving the application.
A notification under this subparagraph is final
agency action for purposes of judicial review. A
Governor may submit a revised application any
time after receiving notice of disapproval.
‘‘(b) STATE RESPONSIBILITIES AND AUTHORITIES.—
‘‘(1) CERTIFICATION OF USE OF FUNDS.—Not
later than one year after a State receives funds pur-
suant to subsection (d), and annually thereafter for
159
as long as the State receives such funds, the Gov-
ernor of the State shall submit to the Administrator
the following:
‘‘(A) A certification that the State has
used the funds in accordance with the require-
ments of this section and State law.
‘‘(B) Information describing the manner in
which the State has used the funds.
‘‘(C) Such other information about the use
of the funds as the Administrator considers
necessary.
‘‘(2) COST RECOVERY.—All response costs that
are paid by the State using State funds and that are
recovered by a State under section 107 or under
State cost recovery provisions for costs incurred at
a facility for which the State has been authorized
pursuant to subsection (a) shall be retained by the
State. All response costs paid by funds from the
Hazardous Substance Superfund established under
subchapter A of chapter 98 of the Internal Revenue
Code of 1986 recovered under section 107 or under
State liability provisions by a State for costs in-
curred at a facility for which the State has been au-
thorized to take such action pursuant to subsection
(a) shall be deposited into such Superfund. Notwith-
160
standing paragraph (1), 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 clearly inconsistent with the provisions of this
section, the Administrator shall notify the Governor
in writing. If the Governor fails to demonstrate
promptly after receiving such notice that the Admin-
istrator’s finding is in error, or that the inconsist-
ency is being corrected, the Administrator may re-
quest reimbursement of such sums as the Adminis-
trator has found to be used in a manner clearly in-
consistent with this section or bring an action in the
appropriate United States district court to recover
the amount of funds used in a manner clearly incon-
sistent with the provisions of this section.
‘‘(2) WITHDRAWAL OF AUTHORIZATION.—
161
‘‘(A) CERTIFIED STATES.—If the Adminis-
trator finds that a State does not meet the re-
quirements for authorization under subsection
(a)(2), or fails to meet terms and conditions for
authorization added pursuant to subsection
(a)(3)(C), or is exercising such authority in a
manner clearly inconsistent with the require-
ments of this section, the Administrator may
withdraw the State’s authorization after provid-
ing notice and an opportunity to correct defi-
ciencies pursuant to subparagraph (B).
‘‘(B) NOTICE AND OPPORTUNITY TO REC-
TIFY.—The Administrator shall notify a State
in writing prior to withdrawing authorization
approved pursuant to subsection (a). If the
State has not addressed the deficiencies listed
in the Administrator’s notification in a timely
manner after receiving the notification, the au-
thority may be withdrawn.
‘‘(3) DELISTING
FROM
NATIONAL
PRIORITIES
LIST.—(A) Upon receipt of a written statement de-
scribed in subparagraph (B) from a Governor with
respect to a facility, the Administrator shall publish
a notice in the Federal Register to delist the facility
162
(or portion thereof) from the National Priorities
List.
‘‘(B) The written statement referred to in sub-
paragraph (A) is a written statement from a Gov-
ernor with respect to a facility stating that—
‘‘(i) no further action to address the con-
tamination at the facility (or portion thereof) is
necessary to protect human health and the envi-
ronment; or
‘‘(ii) response action has been completed in
accordance with an enforceable agreement to
clean up the facility or cleanup is proceeding at
the facility under the Solid Waste Disposal Act.
‘‘(4) PROHIBITED ACTIONS.—Except upon re-
quest from the State or as provided in subsection
(d), the Administrator is prohibited from taking any
actions under this Act at any facility on the Na-
tional Priorities List for which authorization has
been granted under this section.
‘‘(d) RELATIONSHIP TO COOPERATIVE AGREEMENTS
AND SECTION 131.—Nothing in this section shall affect
the authority of the Administrator under section
104(d)(1) of this Act to enter into a cooperative agree-
ment with a State or political subdivision or Indian
Tribe.’’.
163
SEC. 503. FEDERAL FUNDING OF STATE ACTIONS UNDER
STATE DELEGATION OR STATE AUTHORIZA-
TION.
Subtitle B of title I of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of
1980, as added by section 501, is further amended by add-
ing at the end the following new section:
‘‘SEC. 153. FEDERAL FUNDING.
‘‘(a) FUNDING FOR STATES WITH DELEGATED AU-
THORITY.—
‘‘(1) IN
GENERAL.—The Administrator shall
fund the cost to a State of exercising any delegated
authorities as such costs arise, where such costs may
be determined on a site-specific basis, except as pro-
vided in paragraph (3).
‘‘(2) ALLOCATION.—The Administrator shall al-
locate funds among States for program activities for
which costs cannot be determined on a site-specific
basis considering the following factors:
‘‘(A) The cost of administering the dele-
gated authority.
‘‘(B) The number of facilities for which the
State has been delegated authority.
‘‘(C) The types of activities for which the
State has been delegated authority.
164
‘‘(D) The number of facilities within the
State on the National Priorities List.
‘‘(E) The number of other high priority fa-
cilities within the State.
‘‘(F) The need for development of the
State program.
‘‘(G) The need for additional personnel.
‘‘(H) The amount of resources available
through State programs for the cleanup of con-
taminated facilities.
‘‘(I) The benefit to human health and the
environment of providing the funding.
‘‘(3) REIMBURSEMENT FOR REMOVAL ACTIONS
UNDER SECTION 104.—The cost to a State of exer-
cising any delegated removal authority under section
104 shall be reimbursed in accordance with section
123.
‘‘(b) FUNDING
FOR STATES WITH AUTHORIZA-
TION.—
‘‘(1) IN
GENERAL.—The Administrator shall
fund the cost to a State of exercising any authority
for which an authorization has been made under sec-
tion 152 as such costs arise, where such costs may
be determined on a site-specific basis.
165
‘‘(2) AUTHORITY OF ADMINISTRATOR TO DENY
OR RECOVER CERTAIN COSTS.—(A) With respect to
site-specific costs attributable to a State cleanup
standard, requirement, criteria, or limitation that is
more stringent than a legally applicable Federal
standard, requirement, criteria, or limitation, the
Administrator may deny funding to the State for
such costs, or seek recovery from the State of any
funds from the Hazardous Substance Superfund
used by the State for such costs, if the Adminis-
trator makes the finding described in subparagraph
(B).
‘‘(B) The finding referred to in subparagraph
(A) is a finding by the Administrator in the case of
a remedial action to be undertaken solely under sec-
tion 104 using the Hazardous Substance Superfund
that selection of a remedial action that attains such
level or standard of control will not provide a bal-
ance between the need for protection of public health
and the environment at the facility under consider-
ation, and the availability of amounts from the Haz-
ardous Substance Superfund to respond to other
sites which present or may present a threat to public
health or the environment, taking into consideration
the relative immediacy of such threats.
166
‘‘(3) ALLOCATION.—The Administrator shall al-
locate funds among States for program activities for
which costs cannot be determined on a site-specific
basis considering the following factors:
‘‘(A) The cost of administering the author-
ity for which the State has received authoriza-
tion.
‘‘(B) The number of facilities for which the
State has received authorization.
‘‘(C) The need for additional personnel.
‘‘(D) The amount of resources available
through State programs for the cleanup of con-
taminated facilities.
‘‘(E) The benefit to human health and the
environment of providing the funding.
‘‘(c) LIST OF ACTIVITIES.—In consultation with the
States, the Administrator shall publish a list of the activi-
ties for which costs may and may not be determined on
a site-specific basis.
‘‘(d) USE OF FUNDS.—A State may use funds pro-
vided under this section to take any actions or perform
any duties necessary to implement—
‘‘(1) any authority delegated to the State under
section 151; and
167
‘‘(2) any State hazardous substance response
program for which the State has received authoriza-
tion under section 152.
‘‘(e) COST SHARE.—A State may not use funds pro-
vided under this section unless the State provides assur-
ances that it will pay the amount described in section
104(c)(3). A State may not use funds appropriated to
carry out the purposes of this section to make such pay-
ments.’’.
SEC. 504. STATE COST SHARE.
Paragraph (3) of section 104(c) of the Comprehen-
sive Environmental Response, Compensation, and Liabil-
ity Act of 1980 (42 U.S.C. 9604(c)) is amended to read
as follows:
‘‘(3)(A) Neither the Administrator nor a State
described in subparagraph (B) may provide any re-
medial action pursuant to this section unless the
State first enters into a contract or cooperative
agreement with the Administrator providing assur-
ances deemed adequate by the Administrator that
the State will pay, in cash or through other in-kind
contributions, 10 percent of the costs of the remedial
action and 10 percent of the costs of operation and
maintenance.
‘‘(B) Subparagraph (A) applies to any State—
168
‘‘(i) which has been delegated authority
pursuant to section 151(a) to take remedial ac-
tion; or
‘‘(ii) which has received authorization
under section 152(a).
‘‘(C) Subparagraph (A) does not apply in the
case of remedial action to be taken on land or water
held by an Indian Tribe, held by the United States
in trust for Indians, held by a member of an Indian
Tribe (if such land or water is subject to a trust re-
striction or alienation), or otherwise within the bor-
ders of an Indian reservation.’’.
SEC. 505. CONCURRENCE OF GOVERNORS REQUIRED FOR
ADDITIONS TO NATIONAL PRIORITIES LIST.
(a) GOVERNORS’ CONCURRENCE REQUIRED.—Sec-
tion 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9605) is amended by adding at the end the following new
subsection:
‘‘(h) CONCURRENCE OF GOVERNORS REQUIRED FOR
ADDITIONS TO NATIONAL PRIORITIES LIST.—The Presi-
dent may add a facility to the National Priorities List only
with the concurrence of the Governor of the State in which
the facility is located.’’.
169
(b) CROSS REFERENCE.—Subparagraph (B) of sec-
tion 105(a)(8) is amended by inserting after ‘‘shall revise
the list’’ the following: ‘‘, subject to subsection (h),’’.
SEC. 506. STATE AND LOCAL REIMBURSEMENT FOR RE-
SPONSE ACTIONS.
Section 123 is amended to read as follows:
‘‘SEC. 123. REIMBURSEMENT TO STATE AND LOCAL GOV-
ERNMENTS.
‘‘(a) APPLICATION.—Any State or general purpose
unit of local government for a political subdivision which
is affected by a release or threatened release at any facility
may apply to the President for reimbursement under this
section.
‘‘(b) REIMBURSEMENT.—
‘‘(1) EMERGENCY RESPONSE.—The President is
authorized to reimburse general purpose units of
local government for expenses incurred in carrying
out emergency response actions necessary to prevent
or mitigate injury to human health or the environ-
ment associated with the release or threatened re-
lease of any hazardous substance or pollutant or
contaminant. Such actions may include, where ap-
propriate, security fencing to limit access, response
to fires and explosions, and other activities which re-
quire immediate response at the State or local level.
170
‘‘(2) REMOVAL ACTIONS.—The President is au-
thorized to reimburse States for expenses incurred in
carrying out removal actions under section 104.
‘‘(3) LIMITATIONS.—(A) Reimbursement under
this section shall not supplant State or local funds
normally provided for response.
‘‘(B) No reimbursement may be provided under
this subsection to any general purpose unit of local
government or any State for expenses incurred be-
fore the date of the enactment of the Superfund Re-
form Act.
‘‘(c) AMOUNT.—(1) The amount of any reimburse-
ment to any general purpose unit of local government
under subsection (b)(1) may not exceed $25,000 for a sin-
gle response. The reimbursement under this section with
respect to a single facility shall be limited to the general
purpose units of local government having jurisdiction over
the political subdivision in which the facility is located.
‘‘(2) The amount of any reimbursement to a State
under subsection (b)(2) may not exceed $50,000 for a sin-
gle response. The reimbursement under this section with
respect to a single facility shall be limited to the State
in which the facility is located.
171
‘‘(3) The amounts allowed for the State and general
purpose units of local government may not be combined
for any single response action.
‘‘(d) PROCEDURE.—Reimbursements authorized pur-
suant to this section shall be in accordance with rules pro-
mulgated by the Administrator within 1 year after the
date of the enactment of the Superfund Reform Act.’’.
172
TITLE VI—FEDERAL FACILITIES
SEC. 601. STATE ROLE AT FEDERAL FACILITIES.
Subsection (g) of section 120 is amended to read as
follows:
‘‘(g) STATE ROLE AT FEDERAL FACILITIES.—
‘‘(1) ENFORCEMENT
AND
DISPUTE
RESOLU-
TION.—(A) An interagency agreement under this
section between a State and any department, agen-
cy, or instrumentality of the United States shall be
enforceable by the State or the Federal department,
agency, or instrumentality in the United States dis-
trict court for the district in which the facility is lo-
cated. The district court shall have the jurisdiction
to enforce compliance with any provision, standard,
regulation, condition, requirement, order, or final de-
termination which has become effective under such
agreement, and to impose any appropriate civil pen-
alty provided for any violation of the agreement, not
to exceed $25,000 per day.
‘‘(B) At a Federal facility in a State to which
the President’s authorities under subsection (e)(4)
have been transferred pursuant to section 131(a), if
the State does not concur in the remedy selection
proposed by the Federal department, agency, or in-
strumentality that owns or operates the facility, the
173
parties shall enter into dispute resolution as pro-
vided in the interagency agreement. If there is no
interagency agreement, the State shall, not later
than 120 days after the transfer of authorities under
section 131(a), enter into an agreement with the
head of the department, agency, or instrumentality
on a process for resolving disputes regarding remedy
selection for the facility. If a dispute is unresolved
after using the process under the interagency agree-
ment or dispute resolution agreement, the head of
the Federal department, agency, or instrumentality
that owns the Federal facility and the Governor of
the State shall attempt to resolve such dispute by
consensus. If no agreement is reached between the
head of the Federal department, agency, or instru-
mentality and the Governor, the State may issue the
final determination. In order to compel implementa-
tion of the State’s selected remedy, the State must
bring a civil action in the appropriate United States
district court. The district court shall have jurisdic-
tion as provided in subparagraph (A) to issue any
relief that may be necessary to implement the reme-
dial action, to impose appropriate civil penalties not
to exceed $25,000 per day from the date the selected
remedy becomes final, and to review any challenges
174
to the State’s final determination consistent with the
standards set forth in section 113(j) of this Act.
‘‘(2) LIMITATION.—Except as necessary to im-
plement the transfer of the Administrator’s authori-
ties to a State pursuant to section 131(a), nothing
in this subsection shall be construed as altering,
modifying, or impairing in any manner, or authoriz-
ing the unilateral modification of, any terms of any
agreement, permit, administrative or judicial order,
decree, or interagency agreement existing on the ef-
fective date of the Superfund Reform Act. Any other
modifications or revisions of an interagency agree-
ment entered into under this section shall require
the consent of all parties to such agreement, and ab-
sent such consent the agreement shall remain un-
changed.
‘‘(3) EFFECT ON OTHER AUTHORITIES.—Noth-
ing in this subsection shall affect the exercise by a
State of any other authorities that may be applicable
to Federal facilities in the State.’’.
SEC. 602. INNOVATIVE TECHNOLOGIES FOR REMEDIAL AC-
TION AT FEDERAL FACILITIES.
(a) IN GENERAL.—Section 311 (42 U.S.C. 9660) is
amended by adding at the end the following:
‘‘(h) FEDERAL FACILITIES.—
175
‘‘(1) DESIGNATION.—The President may des-
ignate a facility that is owned or operated by any de-
partment, agency, or instrumentality of the United
States, and that is listed or proposed for listing on
the National Priorities List, to facilitate the re-
search, development, and application of innovative
technologies for remedial action at the facility.
‘‘(2) USE OF FACILITIES.—
‘‘(A) IN GENERAL.—A facility designated
under paragraph (1) shall be made available to
Federal departments and agencies, State de-
partments and agencies, and public and private
instrumentalities, to carry out activities de-
scribed in paragraph (1).
‘‘(B) 
COORDINATION.—The 
Adminis-
trator—
‘‘(i) shall coordinate the use of the fa-
cilities with the departments, agencies, and
instrumentalities of the United States; and
‘‘(ii) may approve or deny the use of
a particular innovative technology for re-
medial action at any such facility.
‘‘(3) CONSIDERATIONS.—
‘‘(A) EVALUATION
OF
SCHEDULES
AND
PENALTIES.—In considering whether to permit
176
the application of a particular innovative tech-
nology for remedial action at a facility des-
ignated under paragraph (1), the Administrator
shall evaluate the schedules and penalties appli-
cable to the facility under any agreement or
order entered into under section 120.
‘‘(B) AMENDMENT
OF
AGREEMENT
OR
ORDER.—If, after an evaluation under subpara-
graph (A), the Administrator determines that
there is a need to amend any agreement or
order entered into pursuant to section 120, the
Administrator shall comply with all provisions
of the agreement or order, respectively, relating
to the amendment of the agreement or order.’’.
(b) REPORT
TO CONGRESS.—Section 311(e) (42
U.S.C. 9660(e)) is amended—
(1) by striking ‘‘At the time’’ and inserting the
following:
‘‘(1) IN GENERAL.—At the time’’; and
(2) by adding at the end the following:
‘‘(2) ADDITIONAL
INFORMATION.—A report
under paragraph (1) shall include information on the
use of facilities described in subsection (h)(1) for the
research, development, and application of innovative
177
technologies for remedial activity, as authorized
under subsection (h).’’.
SEC. 605. FEDERAL ENTITIES AND FACILITIES.
Section 120 (42 U.S.C. 9620) is amended as follows:
(1) By amending the heading to read as follows:
‘‘SEC. 120. FEDERAL ENTITIES AND FACILITIES.’’.
(2) By amending paragraph (1) of subsection
(a) to read as follows:
‘‘(1)(A) Each department, agency, and instru-
mentality of the executive, legislative, and judicial
branches of the United States shall be subject to,
and comply with, all Federal, State, interstate and
local requirements, both substantive and procedural
(including any requirements for permits or report-
ing, or any provisions for injunctive relief and such
sanctions as may be imposed by a court to enforce
such relief), regarding response actions and damages
related to, or management of, releases of hazardous
substances, pollutants, or contaminants in the same
manner, and to the same extent, as any nongovern-
mental entity is subject to such requirements, in-
cluding enforcement and liability (including natural
resource damage liability) under sections 106 and
107 of this title and the payment of reasonable serv-
ice charges.
178
‘‘(B) The Federal, State, interstate, and local
substantive and procedural requirements referred to
in subparagraph (A) include, but are not limited to,
all administrative orders and all civil and adminis-
trative penalties and fines, regardless of whether
such penalties and fines are punitive or coercive in
nature or are imposed for isolated, intermittent, or
continuing violations. The United States hereby ex-
pressly waives any immunity otherwise applicable to
the United States with respect to any such sub-
stantive or procedural requirement (including, but
not limited to, any injunctive relief, administrative
order or civil or administrative penalty or fine re-
ferred to in the preceding sentence, or reasonable
service charge).
‘‘(C) The reasonable service charges referred to
in this paragraph include, but are not limited to,
fees or charges assessed in connection with the proc-
essing and issuance of permits, renewal of permits,
amendments to permits, review of plans, studies,
and other documents, and inspection and monitoring
of facilities, as well as any other nondiscriminatory
charges that are assessed in connection with a State,
interstate, or local response program.
179
‘‘(D) Neither the United States, nor any agent,
employee, or officer thereof, shall be immune or ex-
empt from any process or sanction of any State or
Federal court with respect to the enforcement of any
injunctive relief.
‘‘(E) No agent, employee, or officer of the Unit-
ed States shall be personally liable for any civil pen-
alty under any Federal or State response law with
respect to any act or omission within the scope of
their official duties. An agent, employee, or officer of
the United States shall be subject to any criminal
sanction (including, but not limited to, any fine or
imprisonment) under any Federal or State response
law, but no department, agency, or instrumentality
of the executive, legislative, or judicial branch of the
United States shall be subject to any such sanctions.
‘‘(F) The waiver of sovereign immunity pro-
vided in this paragraph shall not apply to the extent
a State law would apply any standard or require-
ment to such Federal department, agency, or instru-
mentality in a manner which is more stringent than
such standard or requirement would be applied to
any other person.
‘‘(G) Nothing in this section shall be construed
to affect the liability of any person or entity other
180
than a department, agency, or instrumentality of the
United States under sections 106 and 107 of this
Act.
‘‘(H)(i) The Administrator or a State with dele-
gated authority may issue an order under section
106 of this Act to any department, agency, or in-
strumentality of the executive, legislative, or judicial
branch of the United States. The Administrator or
a State with delegated authority shall initiate an ad-
ministrative enforcement action against such a de-
partment, agency, or instrumentality in the same
manner and under the same circumstances as action
would be initiated against any other person.
‘‘(ii) No administrative order issued to such de-
partment, agency, or instrumentality shall become
final until such department, agency, or instrumental-
ity has had the opportunity to confer with the Presi-
dent or a State with delegated authority.
‘‘(I) Each such department, agency, and instru-
mentality shall have the right to contribution protec-
tion set forth in section 113, when such department,
agency, or instrumentality resolves its liability under
this Act.’’.
(3) By striking paragraph (4) of subsection (a).
181
(4) By inserting ‘‘(other than the indemnifica-
tion requirements of section 119)’’ after ‘‘respon-
sibility’’ in subsection (a)(3).
SEC. 607. NOTIFICATION REGARDING UNCONTAMINATED
PROPERTY AT FEDERAL FACILITIES.
Subsection (d) of section 120 (42 U.S.C. 9620) is
amended by adding at the end the following: ‘‘Upon identi-
fication of parcels of uncontaminated property pursuant
to subsection (h)(4), the President may provide notice that
the listing does not include the identified clean parcels.’’.
SEC. 608. ANNUAL STUDIES OF PRIORITIES AT FEDERAL
FACILITIES.
(a) STUDY REQUIREMENT.—The head of each Fed-
eral department, agency, or instrumentality each fiscal
year shall conduct a study to determine priorities among
environmental management activities, within the funds
available for such activities during such fiscal year, at fa-
cilities owned or operated by the department, agency, or
instrumentality and on the National Priorities List.
(b) USE OF STANDARD METHODOLOGIES.—In con-
ducting the study, the head of each department, agency,
or instrumentality shall develop and apply standard meth-
odologies for evaluating and ranking such priorities.
(c) MATTERS TO BE CONSIDERED.—In conducting
the study, the head of the department, agency, or instru-
182
mentality shall consider a range of issues, including the
following:
(1) Health, safety, and environmental risks.
(2) Reduction of infrastructure costs and life-
cycle cleanup costs.
(3) Economic development concerns.
(4) Views of affected citizens.
(d) PARTICIPATION.—In conducting the study, the
head of the department, agency, or instrumentality shall
provide for the participation, at a minimum, of the State
in which the facility is located; the Administrator of the
Environmental Protection Agency or a State with author-
ized under section 131; the department, agency, or instru-
mentality being regulated; and any affected citizens
or entities.
(e) REPORT.—Not later than 90 days after the date
of the enactment of the annual appropriation Act provid-
ing funds for a Federal department, agency, or instrumen-
tality, the head of the department, agency, or instrumen-
tality shall submit to Congress a report on the results of
the study required by this section.
(f) EFFECT OF STUDY ON ENFORCEABLE AGREE-
MENTS.—A study conducted under this section shall in no
way impair or diminish the obligation of any department,
agency, or instrumentality of the United States to comply
183
with requirements agreed to under section 120 of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, unless such requirements have
been specifically—
(1) addressed; or
(2) waived;
without objection from the State or Federal regulating
agency.
SEC. 609. JUDICIAL REMOVALS.
Section 113(b) is amended by inserting after the first
sentence the following: ‘‘Any action initiated in any State
or local court against the United States (or any depart-
ment, agency, instrumentality, officer, or employee of the
United States) regarding liability or response actions re-
lated to, or the release, disposal, or management of, haz-
ardous wastes or hazardous substances, may be removed
by the United States (or any department, agency, instru-
mentality, officer, or employee of the United States) to
the appropriate United States District Court in accord-
ance with section 1446 of title 28, United States Code.’’.
TITLE VII—COMMUNITY
PARTICIPATION
SEC. 701. COMMUNITY INVOLVEMENT.
Section 117(e) (42 U.S.C. 9617(e)) is amended to
read as follows:
184
‘‘(e) IMPROVEMENT OF PUBLIC PARTICIPATION IN
THE SUPERFUND DECISIONMAKING PROCESS.—
‘‘(1) IN GENERAL.—
‘‘(A) MEETINGS AND NOTICE.—In order to
provide an opportunity for meaningful public
participation in every significant phase of re-
sponse activities under this Act, the Adminis-
trator shall provide the opportunity for, and
publish notice of, public meetings before or dur-
ing performance of—
‘‘(i) a public health assessment and a
preliminary assessment and site inspection;
‘‘(ii) a proposal that the site be added
to the National Priorities List;
‘‘(iii) a remedial investigation/feasibil-
ity study, as appropriate;
‘‘(iv) announcement of a proposed re-
medial action plan; and
‘‘(v) completion of a final remedial de-
sign.
‘‘(B) INFORMATION.—A public meeting
under subparagraph (A) shall be designed to
obtain information from the community, and
disseminate information to the community, with
185
respect to a facility concerning the Administra-
tor’s facility activities and pending decisions.
‘‘(2) LIMITATION.—Nothing in this subsection
shall be construed—
‘‘(A) to provide for public participation in
or otherwise affect any negotiation, meeting, or
other discussion that concerns only the poten-
tial liability or settlement of potential liability
of any person, whether prior to or following the
commencement of litigation or administrative
enforcement action;
‘‘(B) to provide for public participation in
or otherwise affect any negotiation, meeting, or
other discussion that is attended only by rep-
resentatives of the United States (or of a de-
partment, agency, or instrumentality of the
United States) with attorneys representing the
United States (or of a department, agency, or
instrumentality of the United States); or
‘‘(C) to waive, compromise, or affect any
privilege that may be applicable to a commu-
nication related to an activity described in sub-
paragraph (A) or (B).
‘‘(3) EVALUATION.—
186
‘‘(A) IN GENERAL.—To the extent prac-
ticable, before and during the facility evalua-
tion, the Administrator shall solicit and evalu-
ate concerns, interests, and information from
the community.
‘‘(B) PROCEDURE.—An evaluation under
subparagraph (A) shall include, as appro-
priate—
‘‘(i) face-to-face community surveys to
identify the location of private drinking
water wells, historic and current or poten-
tial use of water, and other environmental
resources in the community;
‘‘ (ii) a public meeting;
‘‘(iii) written responses to significant
concerns; and
‘‘(iv) other appropriate participatory
activities.
‘‘(4) VIEWS AND PREFERENCES.—
‘‘(A) SOLICITATION.—During the facility
evaluation, the Administrator (or other person
performing the facility evaluation) shall solicit
the views and preferences of the community on
the remediation and disposition of hazardous
187
substances or pollutants or contaminants at the
facility.
‘‘(B) CONSIDERATION.—The views and
preferences of the community shall be described
in the facility evaluation and considered in the
screening of remedial alternatives for the facil-
ity.
‘‘(5) ALTERNATIVES.—Members of the commu-
nity may propose remedial action alternatives, and
the Administrator shall consider such alternatives in
the same manner as the Administrator considers al-
ternatives proposed by potentially responsible par-
ties.
‘‘(6) INFORMATION.—
‘‘(A) THE
COMMUNITY.—The Adminis-
trator, with the assistance of the community as-
sistance group under subsection (f) if there is
one, shall provide information to the community
and 
seek 
comment 
from 
the 
community
throughout all significant phases of the re-
sponse action at the facility.
‘‘(B) TECHNICAL
STAFF.—The Adminis-
trator shall ensure that information gathered
from the community during community out-
188
reach efforts reaches appropriate technical staff
in a timely and effective manner.
‘‘(C) 
RESPONSES.—The 
Administrator
shall ensure that reasonable written or other
appropriate responses will be made to signifi-
cant information.
‘‘(7) 
NONPRIVILEGED
INFORMATION.—
Throughout all phases of response action at a facil-
ity, the Administrator shall make all nonprivileged
information relating to a facility available to the
public for inspection and copying without the need
to file a formal request, subject to reasonable service
charges as appropriate.
‘‘(8) PRESENTATION OF RISK INFORMATION.—
(A) The President, in carrying out responsibilities
under this Act, shall ensure that the presentation of
information on risk is unbiased and informative. The
results of any facility-specific risk evaluation shall
contain an explanation that clearly communicates
the risks at the facility, and shall—
‘‘(i) identify and explain all significant as-
sumptions used in the evaluation, as well as al-
ternative assumptions, the policy or value judg-
ments used in choosing the assumptions, and
189
whether empirical data conflict with or validate
the assumptions;
‘‘(ii) present, to the extent feasible—
‘‘(I) the scientifically objective dis-
tribution of exposure estimates,
‘‘(II) estimates, including central esti-
mates, of exposure and risk using the most
plausible assumptions given the weight of
current scientific information available to
the President,
‘‘(III) groups identified under section
121(b)(3)(B) which are currently or would
be highly exposed or highly susceptible (aa)
to contamination from the site based on
current and reasonably anticipated uses of
land, water, and other resources at or
around the site, or (bb) to risks arising
from implementation of a remedial option,
and
‘‘(IV) a statement of the nature and
magnitude of the scientific uncertainties
associated with such estimates;
‘‘(iii) include the size of the population po-
tentially at risk from releases from the facility
(based on the current or reasonably anticipated
190
future uses of the land, water, or other re-
sources), the exposure scenario used for each
estimate, and the likelihood that such potential
exposures will occur; and
‘‘(iv) compare risks with estimates of
greater, lesser, and substantially equivalent
risks that are familiar to and routinely encoun-
tered by the general public as well as other
risks, and, where appropriate and meaningful,
comparison of those risks with other similar
risks regulated by Federal agencies resulting
from comparable activities and exposure path-
ways.
Comparisons under clause (iv) should consider rel-
evant distinctions among risks, such as the vol-
untary or involuntary nature of risks.
‘‘(B) To the maximum extent practicable, docu-
ments made available to the general public which
purport to describe the degree of risk to human
health shall, at a minimum, provide information
specified in subparagraph (A) or a meaningful ref-
erence to such information in another document rea-
sonably available to the public.
‘‘(9) REQUIREMENTS.—
191
‘‘(A) LENGTHY REMOVAL ACTIONS.—Not-
withstanding any other provision of this sub-
section, in the case of a removal action taken
in accordance with section 104 that is expected
to require more than 180 days to complete, and
in any case in which implementation of a re-
moval action is expected to obviate or that in
fact obviates the need to conduct a long-term
remedial action, the Administrator shall, to the
maximum extent practicable, allow for public
participation consistent with paragraph (1).
‘‘(B) OTHER REMOVAL ACTIONS.—In the
case of all other removal actions, the Adminis-
trator may provide the community with notice
of the anticipated removal action and a public
comment period, as appropriate.
‘‘(10) CITIZEN SUITS.—Any person may com-
mence a civil action on his own behalf pursuant to
section 310 alleging a failure on the part of the
President or any other officer of the United States
to comply with provisions of this section. Relief shall
be limited to an injunction requiring compliance with
this subsection.’’.
192
SEC. 702. COMMUNITY ASSISTANCE GROUPS.
Section 117 (42 U.S.C. 9617) is further amended by
adding at the end the following new subsection:
‘‘(f) COMMUNITY ASSISTANCE GROUP.—
‘‘(1) ESTABLISHMENT.—The Governor of the
state where a facility is located shall create a com-
munity assistance group for a facility that is listed
or proposed for listing on the National Priorities
List—
‘‘(A) if the Governor determines that a
representative public forum will be helpful in
promoting direct, regular, and meaningful con-
sultation among persons interested in response
action at the facility; or
‘‘(B) at the request of—
‘‘(i) 50 individuals residing in, or at
least 20 percent of the population of, the
area in which the facility is located;
‘‘(ii) a representative group of the po-
tentially responsible parties; or
‘‘(iii) any local governmental entity
with jurisdiction over the facility.
‘‘(2) RESPONSIBILITIES.—A community assist-
ance group shall—
‘‘(A) solicit the views of the local commu-
nity on various issues affecting the development
193
and implementation of remedial actions at the
facility;
‘‘(B) serve as a conduit of information to
and from the community to appropriate Fed-
eral, State, and local agencies and potentially
responsible parties;
‘‘(C) serve as a representative of the local
community during the response action planning
and implementation process; and
‘‘(D) provide reasonable notice of and op-
portunities to participate in the meetings and
other activities of the community assistance
group.
‘‘(3) ACCESS TO DOCUMENTS.—The Adminis-
trator shall provide a community assistance group
access to documents in possession of the Federal
Government regarding response actions at the facil-
ity that do not relate to liability and are not pro-
tected from disclosure as confidential business infor-
mation.
‘‘(4) COMMUNITY ASSISTANCE GROUP INPUT.—
‘‘(A) CONSULTATION.—The Administrator
(or if the remedial action plan is being prepared
or implemented by a party other than the Ad-
ministrator, the other party) shall—
194
‘‘(i) consult with the community as-
sistance group in developing and imple-
menting the remedial action plan; and
‘‘(ii) keep the community assistance
group informed of progress in the develop-
ment and implementation of the remedial
action plan.
‘‘(B) 
TIMELY
SUBMISSION
OF
COM-
MENTS.—The community assistance group shall
provide its comments, information, and rec-
ommendations in a timely manner to the Ad-
ministrator (and other party).
‘‘(C) CONSENSUS.—The community assist-
ance group shall attempt to achieve consensus
among its members before providing comments
and recommendations to the Administrator
(and other party), but if consensus cannot be
reached, the community assistance group shall
report or allow presentation of divergent views.
‘‘(5) TECHNICAL ASSISTANCE GRANTS.—
‘‘(A) PREFERRED RECIPIENT.—If a com-
munity assistance group exists for a facility, the
community assistance group shall be the pre-
ferred recipient of a technical assistance grant
under subsection (g).
195
‘‘(B) PRIOR AWARD.—If a technical assist-
ance grant concerning a facility has been
awarded prior to establishment of a community
assistance group—
‘‘(i) the recipient of the grant shall co-
ordinate its activities and share informa-
tion and technical expertise with the com-
munity assistance group; and
‘‘(ii) one person representing the
grant recipient shall serve on the commu-
nity assistance group.
‘‘(6) MEMBERSHIP.—
‘‘(A) NUMBER.—The Governor shall select
not less than 15 nor more than 20 persons to
serve on a community assistance group.
‘‘(B) NOTICE.—Before selecting members
of the community assistance group, the Gov-
ernor shall provide a notice of intent to estab-
lish a community assistance group to persons
who reside in the local community.
‘‘(C) REPRESENTED GROUPS.—(i) The Ad-
ministrator shall, to the extent practicable, ap-
point members to the community assistance
group from each of the following groups of per-
sons:
196
‘‘(I) Persons who reside or own resi-
dential property near the facility.
‘‘(II) Persons who, although they may
not reside or own property near the facil-
ity, may be adversely affected by a release
from the facility.
‘‘(III) Persons who are members of
the local public health or medical commu-
nity and are practicing in the community.
‘‘(IV) Representatives of Indian tribes
or Indian communities that reside or own
property near the facility or that may be
adversely affected by a release from the fa-
cility.
‘‘(V) Local representatives of citizen,
environmental, or public interest groups
with members residing in the community.
‘‘(VI) Representatives of local govern-
ments, such as city or county governments,
or both, and any other governmental unit
that regulates land use or land use plan-
ning in the vicinity of the facility.
‘‘(VII) Members of the local business
community, which do not have liability at
the facility.
197
‘‘(ii) The Governor shall provide particular
opportunity to participate to representatives of
persons who are or historically have been dis-
proportionately affected by contamination in
their community. Each community assistance
group shall, to the extent practicable, reflect the
composition of the community near the facility
and its diversity of interests. The local technical
assistance grant recipient shall be represented
on the community assistance group. Residents
of the affected community shall comprise no
less than 50 percent of the total membership of
the community assistance group.
‘‘(D) PAY.—Members of a community as-
sistance group shall serve without pay.
‘‘(7) PARTICIPATION
BY
GOVERNMENT
REP-
RESENTATIVES.—Representatives of the Adminis-
trator, the Administrator of the Agency for Toxic
Substances and Disease Registry, other Federal
agencies, and the State, as appropriate, shall partici-
pate as requested by the community assistance
group in community assistance group meetings to
provide information and technical expertise, but
shall not be members of the community assistance
group.
198
‘‘(8) ADMINISTRATIVE SUPPORT.—The Admin-
istrator, to the extent practicable, shall provide ad-
ministrative services and meeting facilities for com-
munity assistance groups.
‘‘(9) FACA.—The Federal Advisory Committee
Act (5 U.S.C. App.) shall not apply to a community
assistance group.
‘‘(10) PARTICIPATION
BY
POTENTIALLY
RE-
SPONSIBLE
PARTIES.—Potentially responsible par-
ties or their representatives, as appropriate, may
participate in community assistance group meetings
to provide information and technical expertise, but
shall not be members of the community assistance
group.’’.
SEC. 703. TECHNICAL ASSISTANCE GRANTS.
Section 117 (42 U.S.C. 9617) is further amended by
adding at the end the following new subsection:
‘‘(g) TECHNICAL ASSISTANCE GRANTS.—
‘‘(1) DEFINITIONS.—In this subsection:
‘‘(A) AFFECTED
CITIZEN
GROUP.—The
term ‘affected citizen group’ means a group of
2 or more individuals who may be affected by
the release or threatened release of a hazardous
substance, pollutant, or contaminant at any fa-
cility on the National Priorities List.
199
‘‘(B) TECHNICAL
ASSISTANCE
GRANT.—
The term ‘technical assistance grant’ means a
grant made under paragraph (2).
‘‘(2) AUTHORITY.—
‘‘(A) IN GENERAL.—In accordance with a
regulation issued by the Administrator, the Ad-
ministrator may make grants available to af-
fected citizen groups.
‘‘(B) 
AVAILABILITY
OF
APPLICATION
PROCESS.—To ensure that the application proc-
ess for a technical assistance grant is available
to all affected citizen groups, the Administrator
shall periodically review the process and, based
on the review, implement appropriate changes
to improve availability.
‘‘(3) AVAILABILITY IN ADVANCE.—The Admin-
istrator shall make all or a portion (but not less
than $5,000 or 10 percent of the grant amount,
whichever is greater) of the grant amount available
to a grant recipient in advance of the total expendi-
tures to be covered by the grant.
‘‘(4) LIMIT PER FACILITY.—Not more than 1
technical assistance grant may be made with respect
to a single facility, but the grant may be renewed to