tract or cooperative agreement shall require the
State to use allocation procedures with respect to
the facility. The contract or cooperative agreement
shall require the State to initiate the allocation proc-
ess by certifying each of the following:
‘‘(i) The State has completed a potentially
responsible party search substantially consistent
with subsection (c) of section 130 and will make
the results of that search available to the allo-
cator and the parties.
‘‘(ii) The State has notified Federal, State,
and tribal natural resource trustees of the com-
mencement of the allocation process and, pursu-
ant to section 104(b)(2), of potential damages
to natural resources.
‘‘(iii) The facility would be subject to man-
datory allocation under section 130(a)(1) if the
President were conducting the response action.
‘‘(B) After the State has made a certification
under subparagraph (A), the Administrator shall ini-
tiate an allocation in accordance with the terms of
section 130. The Administrator may assign to the
State, by cooperative agreement or otherwise, any
responsibilities to conduct the allocation, except that
the Administrator and Attorney General shall retain
their authority relating to orphan share funding as
provided by this paragraph and in section 130, in-
cluding the timing and terms of payment.
‘‘(C) The State may accept or reject the alloca-
tion report on the same basis as provided in section
130(l). If the State does not reject the allocation, it
shall use the allocator’s report as the basis of State
settlements. The State may recover the costs of the
allocation pursuant to State law or the provisions of
this Act.
‘‘(D) The President, through either the Admin-
istrator or the Attorney General, or both, may par-
ticipate in any phase of an allocation proceeding
where an orphan share is identified according to the
factors set forth in section 130.
‘‘(E) If the State accepts an allocation report
as the basis for its settlements, and the allocation
report identifies an orphan share subject to Federal
funding, the State shall apply for such funding by
certifying each of the following to the Administrator
and the Attorney General:
‘‘(i) The allocation presents a reasonable
basis for resolving responsibility for the facility.
‘‘(ii) The assignment of an orphan share
shall be in accordance with section 130.
‘‘(F) The Administrator and the Attorney Gen-
eral shall accept a State’s request for orphan share
funding supported by an allocation report and the
certification described in subparagraph (E), unless
the Administrator and Attorney General determine,
within 120 days after the request by the State, that
the allocation does not meet the standards set forth
in section 130. Such determination shall be made in
the same manner, and shall be subject to the same
limitations, as set forth in section 130.
‘‘(G) The contract or cooperative agreement
shall provide the following:
‘‘(i) The Administrator may deduct from
orphan share funding the costs incurred in con-
ducting the allocation.
‘‘(ii) The State may use the orphan share
funding only to fund response actions through
settlement or to reimburse parties performing
work in excess of the share assigned to them in
allocation. No such reimbursement may exceed
the reimbursement level available under section
130.
‘‘(H) The State may recover funds provided
through orphan share funding from nonsettling re-
sponsible parties pursuant to State law or the provi-
sions of this Act. Seventy-five percent of such recov-
eries shall be returned to the Fund. The remaining
25 percent shall be used for any other response ac-
tion by the recovering State.
‘‘(3) COVENANTS.—(A) In a case in which ei-
ther the President, acting under the authority of this
Act, or a State, acting pursuant to a contract or co-
operative agreement under this section, has respon-
sibility for selecting a response action at a facility
listed or proposed for listing on the National Prior-
ities List and enters an administrative or judicial
settlement to resolve the liability of responsible par-
ties at the facility, the President or the State may
confer, in accordance with requirements relating to
covenants of sections 122 and 130, a covenant that
will preclude some or all administrative or judicial
action by both the President and the State to re-
cover response costs or to compel response actions at
the facility with respect to matters addressed in the
settlement, except that such covenants shall not be
binding on the governmental entity that did not con-
fer the covenant to the extent that—
‘‘(i) the covenant purports to address natu-
ral resource damages; or
‘‘(ii) the President or the State has not
been provided notice of, and an opportunity to
participate in, the settlement concerning the re-
sponse action; or
‘‘(iii) the President or the State objects to
the settlement within 120 days of the date of
signature for the record of decision or receipt of
notice of the settlement, whichever is later.
‘‘(B) The covenants described by this para-
graph may be conferred by either the Administrator
or the State with respect to a facility owned or oper-
ated by any department, agency, or instrumentality
of the United States (including the executive, legisla-
tive, and judicial branches of government). The Ad-
ministrator may confer a covenant in an administra-
tive order, consent decree, or an interagency agree-
ment. The State may confer a covenant in an ad-
ministrative order or a consent decree.
‘‘(g) TERMS AND CONDITIONS; ENFORCEMENT.—
‘‘(1) IN GENERAL.—A contract or cooperative
agreement under this section shall be subject to such
terms and conditions as the Administrator may pre-
scribe. If a State fails to comply with a requirement
of a contract or cooperative agreement, the Adminis-
trator, after 90 days notice to the affected State,
may seek in the appropriate United States district
court to ensure performance of the response action,
or to recover any funds advanced or any costs in-
curred because of the breach.
‘‘(2) SPECIFIC TERMS.—A contract or coopera-
tive agreement under this section shall include the
following requirements:
‘‘(A) A requirement that the State shall
exercise any authority conferred by this section
or the contract or cooperative agreement on be-
half of the State, and not on behalf of or in the
name of the Administrator, the President, or
the United States.
‘‘(B) A requirement that the State have
and maintain sufficient legal authority under
applicable State law to enter into the contract
or cooperative agreement.
‘‘(C) A requirement that the Administrator
retain authority to terminate and recoup fund-
ing, and to terminate the contract or coopera-
tive agreement, if the State fails to perform the
contract or cooperative agreement in a manner
consistent with this Act. At least 90 days before
terminating any contract or cooperative agree-
ment with a State, the Administrator shall pro-
vide to the State a written explanation of the
reasons for the proposed termination and afford
an opportunity to the State to discuss the ter-
mination and to propose actions to correct any
deficiencies.
‘‘(D) A requirement imposing a non-
discretionary duty on the Administrator to per-
form or compel expeditious performance of re-
sponse actions under the contract or cooperative
agreement if the State fails to comply with the
terms of the contract or cooperative agreement.
‘‘(h) SAVINGS CLAUSE.—Nothing in this section shall
affect the exercise by a State of any other authorities that
may be applicable to facilities in such State.’’.
SEC. 202. STATE COST SHARE.
Section 104(c) is amended by adding at the end the
following new paragraphs:
‘‘(10) EXISTING
CONTRACTS
AND
COOPERATIVE
AGREEMENTS.—The requirements of paragraphs (3), (6),
and (7) of this subsection shall apply only to contracts
and cooperative agreements pursuant to section 104(d)
entered into prior to the enactment of the Superfund Re-
form Act of 1995.
‘‘(11) STATE COST SHARE.—After the date of enact-
ment of the Superfund Reform Act of 1995, the Adminis-
trator shall not provide any funding under this subsection
or section 127, or any response action pursuant to this
section, except for emergency removal actions, unless the
State in which the release or threatened release occurs has
entered into a contract or cooperative agreement pursuant
to this subsection or section 127 that provides assurances,
deemed adequate by the Administrator, that—
‘‘(A) the State will pay or assure payment of 15
percent of the cost of such response action or fund-
ing, including 15 percent of orphan share funding
and operation and maintenance costs; and
‘‘(B) the State will assure oversight of any op-
eration and maintenance of funded response ac-
tions.’’.
SEC. 203. SITING.
Section 104(c)(9) is amended to read as follows:
‘‘(9) SITING.—Effective 1 year after the date of en-
actment of the Superfund Reform Act of 1995, the Presi-
dent shall not provide any remedial actions pursuant to
this section or section 127 unless the State in which the
release occurs submits a report describing its plans for
adequate treatment, storage, and disposal capacity of haz-
ardous wastes generated within the State, in accordance
with guidelines issued by the Administrator.’’.