the filing of the petition and ending 18 months after the
filing of the petition, the allocation panel shall issue a list
identifying all potentially responsible parties that the allo-
cation panel determines did not contribute any amount of
hazardous substances to the National Priority List site.
The allocation panel shall base the determination on an
evaluation of all evidence received at the time of the issu-
ance of the list with respect to the amount of hazardous
substances contributed by potentially responsible parties.
‘‘(2) The allocation panel shall notify each nonliable
party of its inclusion on the list issued under paragraph
(1) not later than 20 days after issuing the list.
‘‘(3) Nonliable parties shall have no other liability,
under Federal or State law, to any person for response
actions or for any past, present, or future costs incurred
at the site, provided that they take no other actions after
making such settlement payment that would give risk to
a separate basis for their liability under this Act.
‘‘(g) FINAL BINDING ALLOCATION OF RESPONSIBIL-
ITY DECISION.—
‘‘(1) DECISION.—(A) Not later than the dead-
line set forth in subparagraph (B), the allocation
panel shall issue a final binding allocation of respon-
sibility decision (in this subsection referred to as the
‘final BAR decision’) based on the allocation factors
listed in paragraph (2). The panel shall include the
Government’s costs of carrying out the allocation as
part of the response costs to be included in the final
BAR decision. The decision shall include a list of
all potentially responsible parties, a list of all liable
parties and the assigned share for each (including
all de minimis parties as determined under para-
graph (3)), a list of all orphan parties and the por-
tion of the assigned share of each orphan party that
is assigned to the orphan share, and the total or-
phan share assigned to the Revolving Fund. Where
an orphan party is able to pay only a portion of its
assigned share, the allocation panel shall allocate to
the orphan share the portion of the assigned share
that the party is unable to pay and require the party
to pay the remainder. The final BAR decision shall
provide a concise explanation of the basis for the de-
cision. The decision may consist, in whole or in part,
of a compilation of the first allocation report, the
second allocation report, and the orphan share re-
port.
‘‘(B) The final BAR decision shall be issued not
later than 18 months after the date of publication
under section 503(a)(4) of notice that a petition for
a binding allocation of responsibility has been filed,
except that, in a case of exceptional complexity, the
final decision shall be issued not later than 24
months after such date.
‘‘(2) ALLOCATION
FACTORS.—An allocation
panel shall determine the assigned share of each lia-
ble party based on the following factors:
‘‘(A) The degree to which the liable party’s
contribution to a discharge, release, or disposal
of a hazardous substance can be distinguished.
‘‘(B) The amount of hazardous substances
contributed by the liable party at the site con-
cerned, compared to the total amount of haz-
ardous substances at that site. The amount of
nonhazardous substances contributed by the lia-
ble party may not be considered.
‘‘(C) The degree of toxicity of the hazard-
ous substance contributed by the liable party.
‘‘(D) The degree of involvement by the lia-
ble party in the generation, transportation,
treatment, storage, or disposal of the hazardous
substance.
‘‘(E) The degree of care exercised by the
liable party with respect to the hazardous sub-
stance concerned, taking into account the char-
acteristics of such hazardous substance, and the
relative culpability of that party for the threat
to human health and the environment associ-
ated with the hazardous substance.
‘‘(F) The degree of cooperation by the lia-
ble party with Federal, State, or local officials
to prevent any harm to the public health or the
environment.
‘‘(G) The weight of the evidence as to the
liability and the appropriate share of the liable
party.
‘‘(3) DE MINIMIS SETTLEMENTS.—(A) As part
of the final BAR decision, or at any time before the
issuance of the final BAR decision, the allocation
panel shall issue a list identifying all potentially re-
sponsible parties that the allocation panel deter-
mines contributed only 1.0 percent or less of the
total quantity of hazardous substances present at
the National Priority List site, to be known as ‘de
minimis parties’.
‘‘(B) Not later than 60 days after issuance of
the final BAR decision or the issuance of the list of
de minimis parties under subparagraph (A), which-
ever is earlier, the Administrator shall make a firm
written offer of settlement to all de minimis parties.
The amount of the settlement offer for a de minimis
party shall be stated in dollars, not a percentage
share of the cleanup costs, and shall be based on the
Environmental Protection Agency’s estimate of the
total cleanup cost at the site multiplied by the de
minimis party’s allocated share as determined by the
allocation panel and may be increased by a reason-
able premium (not exceeding 100 per cent of the de
minimis party’s allocated share) to reflect the benefit
of an early and complete resolution of liability, in-
cluding consideration of whether the remedy at the
site will entail multiple phases or operable units. All
settlement offers by the Administrator to de minimis
parties at the same site shall be based on the same
estimate of cleanup costs and the same premium.
The settlement offer under this subparagraph is not
subject to judicial review.
‘‘(C) A de minimis party may accept or decline
a settlement offer, but any acceptance of the offer
must be made within 60 days after receipt of the
offer. A de minimis party that accepts the offer may
resolve its liability to the United States by paying
the amount of the offer to the Hazardous Substance
Revolving Fund. Such settlement may not be re-
opened after payment is made, except on grounds of
fraud.
‘‘(D) De minimis parties that accept the settle-
ment offer and pay the amount of the offer shall
have no other liability, under Federal or State law,
to any person for response actions or for any past,
present, or future costs incurred at the site, provided
that they take no other actions after making such
settlement payment that would give rise to a sepa-
rate basis for their liability under this Act.
‘‘(E) All proceeds from de minimis settlements
under this paragraph that represent the allocated
shares of de minimis parties at a site shall be held
by the Administrator for timely payment directly to
the person performing the response action at the
site. All proceeds from de minimis settlements under
this paragraph that represent premiums paid by de
minimis parties at the site shall be earmarked in the
Hazardous Substance Revolving Fund to be used
specifically for costs of response action at the site.
Any amounts of such settlements remaining in the
Revolving Fund after completion of the response ac-
tion shall be available in the Revolving Fund for
general use.
‘‘(4) SERVICE AND PUBLICATION.—The binding
allocation of responsibility decision shall be served
on the guardian, the State, and all liable parties.
The Hearing Clerk shall cause a notice of the bind-
ing allocation of responsibility decision to be pub-
lished in the Federal Register and in a newspaper of
general publication in the State where the site is
located.
‘‘(5) BINDING EFFECT.—The binding allocation
of responsibility decision shall be binding as to all
past, present, or future liability (i) for response
costs incurred under section 107(a)(4)(A), (B), or
(D), and (ii) for contribution under section 113. The
binding allocation of responsibility decision shall be
binding on all persons, including, without limitation,
the United States, any affected State or local gov-
ernmental agency or Indian Tribe, any alleged or
nominated potentially responsible party (regardless
of whether such party participates in the binding al-
location of responsibility), and the public.
‘‘(6) EFFECT ON OTHER PROCEEDINGS.—A de-
termination that a person is a liable party under a
binding allocation of responsibility proceeding is ap-
plicable only with respect to liability being assigned
in the proceeding and not with respect to liability
being determined in any other criminal, civil, or ad-
ministrative proceeding.
‘‘SEC. 504. DUTY TO ANSWER INFORMATION REQUESTS AND
REQUESTS 
FOR 
PRODUCTION 
OF 
DOCU-
MENTS.
‘‘(a) DUTY TO ANSWER.—Each person who receives
any information request or request for production of docu-
ments from the allocation panel during a binding alloca-
tion of responsibility must provide full and timely re-
sponses to the request.
‘‘(b) CERTIFICATION OF DOCUMENTS.—Answers to
information requests and requests for production of docu-
ments shall include a certification by a responsible rep-
resentative who meets the criteria established in section
270.11(a) of title 40 of the Code of Federal Regulations
that the answers—
‘‘(1) are true and correct to the best of their
knowledge;
‘‘(2) are based on a diligent good faith search
of records in the possession or control of the person
to whom the request was directed;
‘‘(3) are based on a reasonable inquiry of the
current and former officers, directors, employees,
and agents of the person to whom the request was
directed;
‘‘(4) accurately reflect information obtained in
the course of conducting such search and such
inquiry;
‘‘(5) that the person executing the certification
understands that there is a duty to supplement any
such answers if, during the binding allocation of re-
sponsibility, any significant additional, new, or dif-
ferent information becomes known or available to
the answerer; and
‘‘(6) that the person executing the certification
understands that there are significant penalties for
submitting false information, including the possibil-
ity of fine and imprisonment for knowing violations.
‘‘(c) SANCTION.—In addition to any other penalty or
sanction, any person who fails to answer an information
request or request for production of documents, and who
is determined to be a liable party, shall be assigned an
assigned share of up to 500 percent of whatever its as-
signed share would otherwise have been, or up to 50 per-
cent of the total liability at the site, whichever is greater.
If this results in a binding allocation of responsibility that
allocates more than 100 percent of the total liability, then
the excess shall be deposited into the Hazardous Sub-
stance Revolving Fund.
‘‘SEC. 505. CIVIL AND CRIMINAL PENALTIES.
‘‘(a) CIVIL PENALTIES.—Any person who fails to
submit a complete and timely answer to an allocation pan-
el’s information request or request for production of docu-
ments or other discovery request, or who submits (after
being notified of the requirement for a certification) a re-
sponse that lacks the certification required under section
504(b), or who makes any false or misleading material
statement or representation in any submission to the allo-
cation panel during the binding allocation of responsibility
process, including statements or representations in con-
nection with the nomination of another potentially respon-
sible party, shall be subject to civil penalties of up to
$10,000 per day of violation. The violation shall be
deemed a continuing one until such time as the request
is answered or the necessary certification is submitted or
the false or misleading statement or representation is cor-
rected. Such penalties may be assessed by the President
in accordance with section 109.
‘‘(b) CRIMINAL PENALTIES.—Any person who know-
ingly makes any false material statement or representation
in the response to an allocation panel’s information re-
quest or request for the production of documents or other
discovery request, or in any other submission to the alloca-
tion panel during the binding allocation of responsibility,
including statements or representations in connection with
the nomination of another potentially responsible party,
may be fined under title 18, United States Code, impris-
oned for not more than 2 years, or both.
‘‘SEC. 506. DOCUMENT REPOSITORY; CONFIDENTIALITY; NO
WAIVER.
‘‘(a) DOCUMENT REPOSITORY.—The allocation panel
shall establish and maintain a document repository where
copies of all petitions, initial statements, advocacy papers,
reports, answers to information requests and requests for
production of documents by the allocation panel, answers
to Federal or State information requests or requests for
the production of documents issued prior to the filing of
the petition, produced documents, and all other similar
material shall be maintained and organized. The docu-
ments and information in the document repository shall
be available only to the parties to the binding allocation
of responsibility for review and copying at their own ex-
pense, subject only to the confidentiality provisions of sub-
section (b). All responses to any information request or
request for production of documents by the allocation
panel shall be filed with the clerk for the document reposi-
tory and need not be served on other potentially respon-
sible parties, the State, or the guardian.
‘‘(b) CONFIDENTIALITY.—(1) All pleadings, docu-
ments, and materials submitted to the allocation panel or
placed in the document repository, together with the
record of any depositions or testimony adduced during the
binding allocation of responsibility, shall be confidential
and shall not be subject to release under section 552 of
title 5, United States Code (the Freedom of Information
Act). The Hearing Clerk and each party to the binding
allocation of responsibility proceeding shall maintain such
pleadings, documents, and materials, together with the
record of any depositions or testimony adduced during the
binding allocation of responsibility, as confidential. Such
material shall not be discoverable or admissible in any
other Federal, State or local judicial, administrative, or
legislative proceeding of any kind whatsoever, except—
‘‘(A) to the extent necessary to collect or other-
wise enforce in court the assigned share of a liable
party as determined by the binding allocation of
responsibility;
‘‘(B) in a proceeding for judicial review of the
binding allocation of responsibility;
‘‘(C) in any new binding allocation of respon-
sibility proceeding concerning the same site; and
‘‘(D) in any binding allocation of responsibility
involving a different site where the allocation panel
determines that the sites are related and that speci-
fied documents from the first binding allocation of
responsibility could materially assist the second
binding allocation of responsibility.
‘‘(2) Notwithstanding paragraph (1)(D), if the origi-
nal of any document or material submitted to the alloca-
tion panel or placed in the document repository during the
binding allocation of responsibility was, while in the pos-
session of the party which provided it, otherwise discover-
able or admissible, then such original document, if subse-
quently sought from such party, shall remain discoverable
or admissible. If a fact covered in any deposition or testi-
mony adduced during the binding allocation of responsibil-
ity was, in the knowledge of the witness or deponent, oth-
erwise discoverable or admissible, then such testimony, if
subsequently sought from such other party, shall remain
discoverable or admissible.
‘‘(c) NO WAIVER OF PRIVILEGE.—The submission of
documents or information pursuant to the binding alloca-
tion of responsibility proceeding shall not be deemed to
be a waiver of any privilege, applicable to the original doc-
ument or fact, under any Federal or State law, regulation,
or rule of discovery or evidence.
‘‘(d) DISCOVERY.—In any case where a party to a
binding allocation of responsibility receives any request for
any pleading, document, or material, or for the record of
any depositions or testimony adduced in a binding alloca-
tion of responsibility, such party shall promptly notify the
person who originally submitted such item and shall pro-
vide such submitting person the opportunity to assert and
defend the confidentiality of such item. No party to the
binding allocation of responsibility shall release or provide
a copy of any pleading, document, or material, or the
record of any depositions or testimony adduced therein,
to any person not a party to such binding allocation of
responsibility, except in compliance with an order from a
court.
‘‘(e) CIVIL PENALTY FOR VIOLATION OF CONFIDEN-
TIALITY REQUIREMENTS.—Any person who fails to main-
tain the confidentiality of any pleadings, documents, or
materials, or the record of any deposition or testimony ad-
duced during the binding allocation of responsibility, or
who releases any such information in violation of this sec-
tion, shall be subject to a civil penalty of up to $25,000
per violation. Such a penalty may be assessed by the Presi-
dent in accordance with section 109.
‘‘SEC. 507. FINAL AGENCY ACTION AND JUDICIAL REVIEW.
‘‘(a) FINAL AGENCY ACTION.—The binding alloca-
tion of responsibility decision of the allocation panel shall
constitute final agency action pursuant to section 706 of
title 5, United States Code, subject only to review by the
Administrator in situations of fraud or gross misconduct.
‘‘(b) JUDICIAL REVIEW.—
‘‘(1) IN GENERAL.—No Federal or State court
shall have jurisdiction to review, modify, or enjoin
any aspect of any binding allocation of responsibility
proceeding except as expressly set forth in this sub-
section. No aspect of any action, decision, ruling, or
determination by an allocation panel in any binding
allocation of responsibility proceeding shall be sub-
ject to administrative or judicial review in any Fed-
eral or State court until after the final binding allo-
cation of responsibility decision (in this subsection
referred to as the ‘final BAR decision’) is issued by
the allocation panel. Any person determined by the
allocation panel to be a liable party, other than the
Administrator and the guardian, may obtain judicial
review of a final BAR decision by filing a petition
for review with the United States Court of Appeals
for the Circuit in which the facility is located or for
the District of Columbia.
‘‘(2) PETITION.—Any such petition for review
must be filed within 60 days after the date of the
final BAR decision by the allocation panel. The peti-
tion shall set forth either the specific assigned share
of liability that the petitioner believes should have
been assigned to it (or, in the case of a petition filed
by the guardian, the assigned share that the guard-
ian believes should have been assigned to the orphan
share) in the binding allocation of responsibility, or
stating specifically that the petitioner believes it