[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2709 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 2709

  To encourage owners and operators of contaminated sites to clean up 
                  those sites, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 22, 1993

Mr. Kreidler introduced the following bill; which was referred jointly 
     to the Committees on Energy and Commerce and Public Works and 
                             Transportation

_______________________________________________________________________

                                 A BILL


 
  To encourage owners and operators of contaminated sites to clean up 
                  those sites, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION. 1. SHORT TITLE.

    This Act may be cited as the ``Expedited Hazardous Site Cleanup Act 
of 1993''.

SEC. 2. DEFINITIONS.

    (a) In General.--The terms used in this Act shall have the same 
meaning when used in the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (42 U.S.C. 9601 and following).
    (b) Additional Definition.--For purposes of this Act the term 
``contaminated facility'' means any facility to which this Act is 
applicable as provided in section 3.

SEC. 3. APPLICABILITY.

    This Act applies to any facility listed on the National Priorities 
List under the Comprehensive Environmental Response, Compensation and 
Liability Act of 1980 (42 U.S.C. 9601 and following) and to any 
facility listed pursuant to State law on any list of facilities 
requiring removal or remedial action for hazardous substances or any 
other pollutant or contaminant, or any facility proposed for inclusion 
on that list.

SEC. 4. AUTHORIZED STATE PROGRAMS.

    (a) Agreements With States.--The Administrator may enter into 
cooperative agreements with any State authorizing the State to 
administer the owner-operator initiated response program described in 
this Act with respect to any facility described in section 3, any class 
or category of such facilities or with respect to all such facilities 
located in that State.
    (b) State Qualifications.--A State must meet the following 
qualifications to be considered eligible to administer this program:
            (1) The State must provide adequate opportunities for 
        public participation.
            (2) The State must provide technical assistance throughout 
        the cleanup.
            (3) The State must assume responsibility for the cleanup if 
        the owner fails or refuses to complete the necessary cleanup.
            (4) The State must provide adequate oversight and has 
        adequate enforcement authorities to ensure that cleanups under 
        this Act are completed in accordance with all applicable 
        Federal and State requirements, including ongoing operation and 
        maintenance or long-term monitoring activities.
    (c) State Approval of Response Action.--Any approval by a State 
administering an authorized program under this section of a response 
action shall have the same force and effect as approval by the 
Administrator under this Act.

SEC. 5. PROCEDURES FOR UNDERTAKING RESPONSES.

    (a) Notice of Intention To Conduct a Response.--At any time after 
the date 6 months after the date of enactment of this Act, any person 
who is the owner or operator of a contaminated facility or portion 
thereof may submit to the Administrator (or to the State in the case of 
an authorized State program), and all known Potentially Responsible 
Parties (PRPs) at the site, a notification of intent to conduct a 
response pursuant to this Act. Such notice shall set forth information 
sufficient for the Administrator (or the State, if authorized) to 
determine that the facility is eligible for the response program under 
this Act.
    (b) Oversight Costs.--(1) As conditions of eligibility for the 
response program set forth in this Act, the facility owner giving 
notice shall--
            (A) agree in advance to pay the reasonable and necessary 
        direct costs incurred and documented by the Administrator (or 
        the State, if authorized) in reviewing the response action and 
        redevelopment plan submitted as provided in subsection (d) and 
        overseeing the response;
            (B) at the request of the Administrator (or State, if 
        authorized), secure a bond so that the cleanup of the site, if 
        started by the owner/operator, is assured of completion; and
            (C) make a one-time, nonrefundable payment of $5,000 at the 
        time such owner submits a response action and redevelopment 
        plan under subsection (d).
    Such payment shall constitute a set-off against future oversight 
costs incurred by the Administrator (or the State, if authorized).
    (2) The Administrator (or the State, if authorized) shall establish 
procedures for arbitration of disputes concerning reimbursement of 
reasonable direct costs incurred under this Act.
    (c) Facility Investigation.--A response action plan under this 
section shall include a schedule for conducting a facility 
investigation which assesses each factor listed below that is necessary 
to determine an appropriate response to the particular release--
            (1) The physical characteristics of the facility, including 
        important surface features, soils, geology, hydrogeology, 
        meteorology, and ecology.
            (2) The characteristics or classifications of air, surface 
        water, and ground water at the facility.
            (3) The general characteristics of the hazardous substances 
        and hazardous constituents at the facility, including quantity, 
        state, concentration, toxicity, propensity to bioaccumulate, 
        persistence, and mobility.
            (4) The extent to which the source of the release of 
        hazardous substances and hazardous constituents can be 
        adequately identified and characterized.
            (5) The actual and potential exposure pathways through 
        environmental media.
            (6) The actual and potential exposure pathways to human 
        receptors.
            (7) The current uses of the property and adjacent 
        properties.
            (8) Other factors that pertain to the characterization of 
        the facility for the purpose of a response or selection of a 
        response action alternative.
The results of the facility investigation shall be available to the 
public upon request and a summary of such results shall be provided 
public libraries in the vicinity of the facility.
    (d) Response Action and Redevelopment Plan.--
            (1) Public notice.--Any facility owner or operator 
        intending to carry out a response action under this Act shall 
        publish a notice in the newspapers in the vicinity of the 
        facility announcing his intention to carry out such action 
        together with a notice that the facility investigation is 
        available to the public. The notice shall include information 
        on the location of the site, a general description of the 
        proposed response action, and a description of the proposed 
        future use of the site. Within 15 days of receipt of a response 
        action and redevelopment plan prepared under paragraph (2), the 
        Administrator (or the State, if authorized) shall publish 
        notice of receipt of the plan and a brief summary of the plan, 
        information regarding the availability of the plan to the 
        public, and notice of a 30-day opportunity for public comment. 
        The facility owner shall submit (by registered or certified 
        mail) to the Federal and State natural resource trustees and 
        all known Potentially Responsible Parties a copy of the notices 
        required under this subsection and a copy of the response 
        action plan at the same time as such notices are required to be 
        published under this paragraph.
            (2) Requirement for a response action plan.--The owner of 
        any facility proposing to undertake response action under this 
        Act shall prepare and submit to the Administrator (or the 
        State, if authorized) a response action plan. The plan shall 
        describe each of the following--
                    (A) The response action to be taken.
                    (B) The response standards to be achieved in 
                accordance with section 106 of this Act.
                    (C) The level or standard of control for hazardous 
                substances or hazardous constituents that will be 
                discharged or emitted into the environment during the 
                response action consistent with the standards section 
                under 106 of this Act.
                    (D) A schedule for completion of the response 
                action.
                    (E) A plan for public notification and 
                participation, including all known Potentially 
                Responsible Parties at the site.
        The plan may also include specific plans for the redevelopment 
        of the site for uses which are appropriate, given the degree of 
        cleanup of the site and the level of hazardous substances, if 
        any, remaining present at the site after completion of the 
        response action. The owner or operator may make public any 
        information in the response action plan, including the specific 
        redevelopment plans.
            (3) Review by federal and state agencies.--Any Federal or 
        State natural resource trustee and any other Federal or State 
        agency may submit to the Administrator or (to the State if 
        authorized) requests for revisions in the response action and 
        redevelopment plan during the 30 day public comment period. The 
        Administrator or (State if authorized) shall respond to such 
        requests within 30 days after the close of the public comment 
        period. The Administrator (or State) shall provide a written 
        statement to the owner or operator explaining in detail any 
        refusal of a request for revision.
            (4) Approval of response action.--The Administrator (or 
        State) may issue a notice approving a response action plan or 
        plan modification submitted to the Administrator (or the State, 
        if authorized) unless the Administrator (or State) finds, after 
        the close of the public comment period specified in paragraph 
        (1), that--
                    (A) based on site-specific factors, the response 
                action plan or plan modification does not comply with 
                the response standards under section 6; or
                    (B) the response action plan or plan modification 
                as submitted, or the facility investigation on which it 
                is based, is otherwise not in accordance with the 
                requirements of this Act.
        Such determination shall be in writing and shall state with 
        specificity the basis for the disapproval. The Administrator 
        (or the State, if authorized) shall publish in the Federal 
        Register (or State equivalent) notice of its decision of 
        approval or disapproval of a response action plan, along with 
        the name of the person from which additional information may be 
        obtained concerning the agency's decision.
            (5) Modification of plan.--The facility owner may submit a 
        proposed modification of the response action plan to the 
        Administrator (or State) at any time prior to final 
        certification. Any such modification shall be approved or 
        disapproved in the same manner as the original plan. The 
        Administrator (or State, if authorized) may require the 
        facility owner to modify such plan at any time after plan 
        approval and prior to final certification if, based on 
        information which become available to the Administrator (or 
        State) after the date of plan approval, the Administrator (or 
        the State) determines that the plan does not satisfy the 
        requirements of this Act.
    (e) Requirement To Perform Additional Response Action.--
    At any time following notice of the approval of a response action 
plan under subsection (d) for any facility, the Administrator (or a 
State, if authorized) may require additional response actions at that 
facility, except that any such additional response may only be required 
under one of the following circumstances:
            (1) The Administrator (or the State, if authorized) learns 
        of significant new information about risks or threats to public 
        health which was not available at the time of response action 
        plan approval and which justify substantially different 
        response action. Significant new information shall not include 
        revised regulations, guidance, or test methods.
            (2) In the case of a response action plan which included 
        specific plans for redevelopment, the use of the facility is 
        not substantially in compliance with such redevelopment plans.
            (3) There has been a failure or refusal to comply with the 
        terms or conditions of the approved response action plan.
            (4) There is a release or threat of release (other than a 
        de minimis release or threat) of any hazardous substance or 
        hazardous constituent which results from activities carried out 
        at the facility and which violates applicable State or Federal 
        law.
            (5) There is a release or threat of release of any 
        hazardous substance or hazardous constituent which results from 
        the introduction of any such substance or constituent at the 
        facility by any person after the approval of the response 
        action plan.
            (6) The owner or operator of the facility has failed or 
        refused to permit any authorized representative of (including 
        any contractor employed by) the Administrator or the State to 
        enter the facility for purposes of inspection or monitoring.
            (7) There have occurred natural resource damages which are 
        not remedied by the response action plan unless the federal or 
        State natural resource trustee has agreed to the plan without 
        reservation.
    In addition, additional response action may be required after the 
owner or operator of the facility submits a certification to the 
Administration (or State) of completion of the response action, if the 
Administrator (or the State) determines in writing, based on review of 
records or sampling data following completion of the response action, 
that the response was not substantially completed.
    (f) Reporting and Recordkeeping Requirements.--
            (1) Reporting.--A person conducting a response pursuant to 
        this Act shall submit an quarterly progress report to the 
        Administrator (or the State, if authorized) for the first 2 
        years and annual reports thereafter. The final report shall be 
        filed when response action is completed. The reports shall 
        include--
                    (A) a description of the actions which have been 
                taken in accordance with the approved response action 
                plan; and
                    (B) the results of sampling and analysis required 
                by the response action plan generated during the prior 
                year.
            (2) Recordkeeping.--A person conducting a response under 
        this Act shall document the actions taken and maintain, for 
        five years after the person submits a certification under 
        subsection (f) to the appropriate agency, each of the following 
        records--
                    (A) The notification to the Administrator and the 
                State required by subsection (a).
                    (B) The facility investigation report.
                    (C) The response action plan.
                    (D) All data required to be generated by the 
                response action plan, including post-response 
                verification data, and analysis of trends.
                    (E) The certification submitted pursuant to 
                subsection (f) demonstrating that the response is 
                complete and in compliance with the response action 
                plan.
    (g) Certification.--(1) Upon completion of the response, a person 
conducting a response under this Act shall submit to the Administrator 
(or the State, if authorized), a certification that the response has 
been completed in accordance with the approved response action plan. 
The certification shall include the information required under 
subsection (f)(1) and all post-response verification data required by 
the response action plan. For response action plans that require 
operation and maintenance or monitoring for a period exceeding 2 years, 
the certification may be submitted at the completion of any other work 
required by the approved response action plan. The certification shall 
be signed by the duly authorized representative of the person 
conducting the response and an independent registered professional 
engineer.
    (2) The Administrator (or State, if authorized) shall approve or 
disapprove of a response action plan under this Act, or exercise the 
authority provided in subsection (e) to require additional response 
actions, within 135 days of submission of the certification provided in 
paragraph (1) of this subsection. If no action is taken by the 
Administrator (or State, if authorized) within the 135 days, the owner/
operator conducting the response may seek a court order to require the 
Environmental Protection Agency (or State, if authorized) to come to a 
decision.

SEC. 6. RESPONSE REQUIREMENTS.

    Responses conducted pursuant to this Act shall comply with the 
following requirements--
            (1) The response action shall achieve a level of 
        remediation that complies with all applicable Federal, State, 
        and local laws, except that in the case of conflict between the 
        provisions of any such laws the administrator shall determine 
        the provisions which shall govern for purposes of this Act.
            (2) 100 percent of the costs of carrying out the response 
        action plan shall be paid by the person carrying out the 
        response action or by such person in conjunction with any other 
        potentially responsible parties pursuant to any agreement 
        reached among such parties prior to submission of the plan.
            (3) The person carrying out the response action (such 
        person in conjunction with any other potentially responsible 
        parties pursuant to an agreement reached among such parties 
        prior to submission of the plan) shall reimburse Administrator 
        (or the State, if authorized) for 100 percent of the reasonable 
        and necessary documented direct costs incurred by the 
        Administrator (or State, if authorized) in reviewing the 
        response action plan and overseeing the response.
            (4) All response actions shall be conducted by a person or 
        person approved by the Administrator (or the State, if 
        authorized).
            (5) Responsibility is assigned, and mechanism for assuring 
        funding is provided, for all post-response action monitoring, 
        operation and maintenance and long-term response action deemed 
        necessary by the Administrator (or State, if authorized).

SEC. 7. RELATIONSHIP WITH OTHER LAWS.

    (a) Private Cost Recovery Claims.--Responses conducted in 
accordance with the terms and conditions of this Act and in accordance 
with a response action plan approved under this Act shall be deemed 
consistent with the National Contingency Plan for purposes of private 
cost recovery claims under the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (42 U.S.C. 9601 and following).
    (b) Effect of Response.--Performance of a response pursuant to this 
Act shall not constitute an admission of liability under any Federal, 
State, or local laws or regulations or in any private action nor shall 
such performance be admissible as evidence in any citizen's suit or 
private action brought under any of the statutes specified in section 
109(b) of this Act.

SEC. 8. ENFORCEMENT.

    Whenever the Administrator (or the State, if authorized) determines 
that any person has failed to comply with the terms or conditions of an 
approved response action plan, the Administrator (or the State, if 
authorized) may issue an order requiring compliance with such term or 
condition. If the person fails to comply with the order, a civil 
penalty of not more than $25,000 per day of violation may be assessed 
by the Administrator (or the State, if authorized) for the violation of 
the term or condition of an approved response action plan identified in 
the order. In determining the amount of any penalty assessed pursuant 
to this subsection, the Administrator (or the State, if authorized) 
shall take into account the nature, circumstances, extent and gravity 
of the violation, any good-faith efforts to comply with the terms and 
conditions of the response action plan, the degree of culpability or 
the economic benefit (if any) resulting from the violation, any prior 
history of such violation, and such other matters as justice may 
require. No penalty may be assessed under this subsection unless the 
person accused of the violation is given notice and opportunity for a 
hearing with respect to the violation.

SEC. 9. COVENANT NOT TO SUE.

    (a) In General.--Upon the receipt of a certification under section 
5(g) with respect to any facility, unless the Administrator (or State, 
if authorized) takes action under section 5(e), upon the request of the 
facility owner or operator, the Administrator shall enter into a 
covenant not to sue the facility owner or operator any other 
potentially responsible parties participating in the response action 
with respect to that facility for civil liability under section 106 or 
107(a) of the Comprehensive Environmental Response, Compensation and 
Liability Act or section 7003 of the Solid Waste Disposal Act. Nothing 
in this Act shall affect the criminal liability of any person under any 
authority of Federal or State law. The site may be restored to the 
National Priorities List if the covenant not to sue is violated by the 
facility owner or operator.
    (b) Reservations.--Each covenant not to sue entered into under this 
Act shall expressly reserve the Administrator's rights to assert all 
claims against any party to the covenant except for a claim based on 
any condition set forth in section 5(e).
    (c) Removal From NPL.--Upon issuance of a covenant not to sue under 
subsection (b) with respect to any facility, the Administrator shall 
remove the facility from the National Priorities List under the 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980.
    (d) Refusal to Enter Covenant.--The Administrator may establish 
guidelines for situations in which it is not in the public interest for 
the Administrator to enter into a covenant not to sue under this 
section. In any case in which the Administrator refuses to enter into a 
covenant not to sue, the Administrator shall issue a written 
explanation, based on such guideline, of the reasons for such refusal.

SEC. 10. AMENDMENT TO CERCLA.

    Section 121(d) of the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (42 U.S.C. 9601 and following) 
is amended by adding the following at the end thereof:
            ``(5) In the case of any response action under the 
        Expedited Hazardous Substances Cleanup Act of 1993, the 
        remedial action selected by the President shall achieve a 
        degree of remedial action which the Administrator or the State 
        deems appropriate taking into account (A) the types of 
        activities to be carried out at the facility pursuant to any 
        specific redevelopment plans included in the response action 
        plan approved under that Act, (B) the level of exposure of 
        individuals to hazardous substances remaining present at the 
        site after completion of the remedial action and (C) the risk 
        of hazardous substance migration.''.

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HR 2709 IH----2