[Congressional Record Volume 140, Number 10 (Monday, February 7, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: February 7, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. PELL (by request):
S. 1831. A bill to implement the Protocol on Environmental Protection
to the Antarctic Treaty, to enact a prohibition against Antarctic
mineral resource activities, and for other purposes; to the Committee
on Foreign Relations.
antarctic environmental protection act of 1993
Mr. PELL. Mr. President, by request, I introduce for
appropriate reference a bill to implement the Protocol on Environmental
Protection to the Antarctic Treaty, to enact a prohibition against
Antarctic mineral resource activities, and for other purposes.
This proposed legislation has been requested by the Department of
State, and I am introducing it in order that there may be a specific
bill to which Members of the Senate and the public may direct their
attention and comments.
I reserve my right to support or oppose this bill, as well as any
suggested amendments to it, when the matter is considered by the
Committee on Foreign Relations.
I ask unanimous consent that the bill be printed in the Record,
together with a statement of purpose and need, the section-by-section
analysis, and the letter from the Assistant Secretary of State for
Legislative Affairs, which was received on November 16, 1993.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1831
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 ``Antarctic Environmental
Protection Act of 1993''.
SEC. 2. FINDINGS, PURPOSE, AND POLICY.
(a) Findings.--The Congress finds that--
(1) the Antarctic Treaty and the Protocol on Environmental
Protection to the Antarctic Treaty have established a firm
foundation for the comprehensive protection of the Antarctic
environment, the continuation of international cooperation,
and the freedom of scientific investigation in Antarctica;
(2) the Protocol establishes international mechanisms and
creates legal obligations necessary for the maintenance of
Antarctica as a natural reserve, devoted to peace and
science;
(3) the Protocol serves important United States
environmental and resource management interests, while at the
same time preserving the freedom of scientific investigation
in Antarctica;
(4) the Protocol represents an important contribution to
the United States' long-term legal and political objectives
of maintenance of Antarctica as an area of peaceful
international cooperation;
(5) the Protocol institutes environmental impact assessment
procedures applicable to United States activities in
Antarctica which are consistent with those of the National
Environmental Policy Act of 1969;
(6) the prohibition of Antarctic mineral resource activity
will contribute to protection of the Antarctic environment
and dependent and associated ecosystems by avoiding potential
environmental degradation which could result from mineral
resource activities;
(7) the Protocol, including the principles contained in
Article 3, which is legally binding on the United States,
provides a basis for granting residual regulatory authority
to address situations not specifically addressed by the
provisions of the Protocol; and
(8) Antarctica is a natural reserve, devoted to peace and
science.
(b) Purpose.--The purpose of this Act is to provide
legislative authority to implement, with respect to the
United States, the Protocol on Environmental Protection to
the Antarctic Treaty.
(c) Policy.--
(1) It is the national policy of the United States that the
protection of the Antarctic environment and dependent and
associated ecosystems and the intrinsic value of Antarctica,
including its wilderness and aesthetic values and its value
as an area for the conduct of scientific research, in
particular research essential to understanding the global
environment, shall be fundamental considerations in the
planning and conduct of all activities in the Antarctic
Treaty area.
(2) It is the national policy of the United States that
activities in Antarctica are to be planned and conducted so
as to limit adverse impacts on the Antarctic environment and
dependent and associated ecosystems and avoid--
(A) adverse effects on climate or weather patterns;
(B) significant adverse effects on air or water quality;
(C) significant changes in the atmospheric, terrestrial
(including aquatic), glacial, or marine environments;
(D) detrimental changes in the distribution, abundance of
productivity of species or populations of species of fauna
and flora;
(E) further jeopardy to endangered or threatened species or
populations of such species; or
(F) degradation of, or substantial risk to, areas of
biological, scientific, historic, aesthetic, or wilderness
significance.
(3) It is the national policy of the United States that
activities in Antarctica are to be planned and conducted on
the basis of information sufficient to allow prior
assessments of, and informed judgments about, their possible
impacts on the Antarctic environment and dependent and
associated ecosystems and on the value of Antarctica for the
conduct of scientific research, taking full account of--
(A) the scope of the activity, including its area,
duration, and intensity;
(B) the cumulative impacts of the activity, both by itself
and in combination with other activities in the Antarctic
Treaty area;
(C) whether the activity will detrimentally affect any
other activity in the Antarctic Treaty area;
(D) whether technology and procedures are available to
provide for environmentally safe operations;
(E) whether there exists the capacity to monitor key
environmental parameters and ecosystem components so as to
identify and provide early warning of any adverse effects of
the activity and to provide for such modification of
operating procedures as may be necessary in the light of the
results of monitoring or increased knowledge of the Antarctic
environment and dependent and associated ecosystems; and
(F) whether there exists the capacity to respond promptly
and effectively to accidents, particularly those with
potential environmental effects.
(4) It is the national policy of the United States that
regular and effective monitoring take place to allow
assessment of the impacts of ongoing activities, including
the verification of predicted impacts.
(5) It is the national policy of the United States that
regular and effective monitoring take place to facilitate
early detection of the possible unforeseen effects of
activities carried out both within and outside the Antarctic
Treaty area on the Antarctic environment and dependent and
associated ecosystems.
(6) It is the national policy of the United States that
activities in Antarctica be planned and conducted so as to
accord priority to scientific research and to preserve the
value of Antarctica as an area for the conduct of such
research, including research essential to understanding the
global environment.
(7) It is the national policy of the United States that
activities in Antarctica subject to U.S. jurisdiction take
place in a manner consistent with the Protocol, and be
modified, suspended or cancelled if they result in or
threaten to result in impacts upon the Antarctic environment
or dependent or associated ecosystems inconsistent with the
Protocol.
Sec. 3. DEFINITIONS.
For purposes of this Act----
(1) The term ``Administrator'' means the Administrator of
the Environmental Protection Agency or an officer or employee
of the Environmental Protection Agency designated by the
Administrator.
(2) The term ``Antarctica'' means the area south of 60
degrees south latitude, except that with respect to Antarctic
mineral resource activity, the term means the area south of
the Antarctic Convergence as defined in section 303 of the
Antarctic Marine Living Resources Convention Act of 1984 (16
USC 2342(1)).
(3) The term ``Antarctic mineral resource''--
(A) means any nonliving natural nonrenewable resource (or
part or product thereof) found in or recovered from
Antarctica;
(B) includes fossil fuels and minerals, whether metallic or
nonmetallic; and
(C) does not include ice, water, snow, or any mineral
resource removed before the date of enactment of this Act.
(4) The term ``Antarctic mineral resource activity'' means
collecting, removing or transporting, or prospecting for, or
exportation or development of, an Antarctic mineral resource,
except that the term does not include those activities that
are undertaken in the course of and that are directly related
to--
(A) scientific research;
(B) construction, operation and maintenance of research
stations, field camps, or other such facilities; or
(C) providing, with the advance written consent of the
recipient institution, an Antarctic mineral resource specimen
to a museum or other institution with a similar public
function.
(5) The term ``Antarctic specially protected area'' means
an area identified as such under section 6.
(6) The term ``Committee for Environmental Protection''
means the Committee for Environmental Protection established
under Article 11 of the Protocol.
(7) The term ``development''--
(A) means any activity, including logistic support, which
takes place following exploration, the purpose of which is
the exploitation of specific Antarctic mineral resource
deposits; and
(B) includes processing, storage, and transport activities.
(8) The term ``Director'' means the Director of the
National Science Foundation or an officer or employee of the
Foundation designated by the Director.
(9) The term ``exploration''--
(A) means any activity, including logistic support, the
purpose of which is the identification or evaluation of
specific Antarctic mineral resource deposits for possible
development; and
(B) includes exploratory drilling, dredging, and other
surface or subsurface excavations undertaken to determine the
nature and size of mineral resource deposits and the
feasibility of their development.
(10) The term ``harmful interference'' means--
(A) flying or landing helicopters or other aircraft in a
manner that disturbs concentrations of birds or seals;
(B) using vehicles or vessels, including hovercraft and
small boats, in a manner that disturbs concentrations of
birds or seals;
(C) using explosives or firearms in a manner that disturbs
concentrations of birds or seals;
(D) willfully disturbing breeding or molting birds or
concentrations of birds or seals by persons on foot;
(E) significantly damaging concentrations of native
terrestrial plants by landing aircraft, driving vehicles,
walking on them, or by other means; and
(F) any activity that results in significant adverse
modification of the habitat of any species or population of
native mammal, native bird, native plant or native
invertebrate.
(11) The term ``historic site or monument'' mans any site
or monument identified as a historic site or monument by the
Director under section 6.
(12) The term ``impact'' means impact on the Antarctic
environment or on dependent or associated ecosystems.
(13) The term ``implementing agency'' means the Director,
the Secretary, the Administrator, the Secretary of the
Department in which the Coast Guard is operating, or the
Secretary of State, as regulatory responsibilities are vested
under this Act.
(14) The term ``import'' means to land on, bring into, or
introduce into, or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the
United States, including the 12-mile territorial sea of the
United States, whether or not such act constitutes an
importation within the meaning of the customs laws of the
United States.
(15) The term ``native bird'' means any member, at any
stage of its life cycle (including eggs), of any species of
the class Aves which is indigenous to Antarctica or occurs
there seasonally through natural migrations, designated by
the Director as a native species under section 6, and
includes any part of such member.
(16) The term ``native invertebrate'' means any terrestrial
or freshwater invertebrate, at any state of its life cycle,
which is indigenous to Antarctica, designated by the Director
as such under section 6, and includes any part of such
invertebrate.
(17) The term ``native mammal'' means any member, at any
stage of its life cycle, of any species of the class
Mammalia, which is indigenous to Antarctica or occurs there
seasonally through natural migrations, designated by the
Director as a native species under section 6, and includes
any part of such member.
(18) The term ``native plant'' means any terrestrial or
freshwater vegetation, including bryophytes, lichens, fungi
and algae, at any stage of its life cycle (including seeds
and other propagules), which is indigenous to Antarctica,
designated as such by the Director under section 6, and
includes any part of such vegetation.
(19) The term ``non-native species'' means any species of
animal or plant which is not indigenous to Antarctica.
(20) The term ``person'' means an individual, partnership,
corporation, trust, association, or other entity subject to
the jurisdiction of the United States and any department,
agency, or other instrumentality of the Federal Government or
of any State or local government, and any officer, employee,
or agent of any such instrumentality.
(21) The term ``prohibited product'' means any substance
which is designated as such under section 6.
(22) The term ``prohibited waste'' means any substance
which is designated as such under section 6.
(23) The term ``prospecting'' means any activity, including
logistic support, the purpose of which is the identification
of Antarctic mineral resource potential for possible
exploration and development.
(24) The term ``Protocol'' means the Protocol on
Environmental Protection to the Antarctic Treaty, signed
October 4, 1991, in Madrid, and all annexes thereto, and
includes any future amendments thereto which have entered
into force.
(25) The term ``Secretary'' means the Secretary of
Commerce, or an officer or employee of the Department of
Commerce designated by the Secretary.
(26) The term ``specifically protected species'' means any
native species designated as a specially protected species by
the Director under section 6.
(27) The term ``take'' or ``taking'' means to kill, injure,
capture, handle, or molest, a native mammal or bird, or to
remove or damage such quantities of native plants that their
local distribution or abundance would be significantly
affected.
(28) The term ``Treaty'' and ``Antarctic Treaty'' mean the
Antarctic Treaty signed in Washington, D.C. on December 1,
1959.
(29) The term ``United States'' means the several States of
the Union, the District of Columbia, the Commonwealth of
Puerto Rico, American Samoa, the Virgin Islands, Guam, the
Commonwealth of the Northern Mariana Islands, any other
commonwealth, territory or possession of the United States,
and the Trust Territory of the Pacific Islands.
(30) The term ``vessel subject to the jurisdiction of the
United States'' includes any ``vessel of the United States''
and any ``vessel subject to the jurisdiction of the United
States'' as those terms are defined in section 303 of the
Antarctic Marine Living Resources Convention Act of 1984 (16
USC 2432).
SEC. 4. PROHIBITED ACTS.
(a) In General.--It is unlawful for any person--
(1) to engage in, provide assistance (including logistic
support) to, or knowingly finance any Antarctic mineral
resource activity;
(2) to receive, acquire, transport, offer for sale, sell,
purchase, import, export, or have custody, control or
possession of any Antarctic mineral resource which that
person knows, or in the exercise of due care should have
known, was recovered or otherwise possessed as a result of
Antarctic mineral resource activity, without regard to the
citizenship of the entity that engaged in, or the vessel used
in engaging in, the Antarctic mineral resource activity;
(3) to introduce any prohibited product onto land or ice
shelves or into water in Antarctica;
(4) to dispose of any waste onto ice-free land areas or
into fresh water systems in Antarctica;
(5) to dispose of any prohibited waste in Antarctica;
(6) to engage in open burning of waste in Antarctica after
March 1, 1994;
(7) to transport passengers to, from or within Antarctica
by any vessel not required to comply with the Act to Prevent
Pollution from Ships (33 USC 1901 et seq.), unless the person
has an agreement with the vessel owner or operator under
which the owner or operator is required to comply with Annex
IV to the Protocol;
(8) who organizes, sponsors, operates, or promotes a non-
governmental expedition to Antarctica, and who does business
in the United States, to fail to notify all members of the
expedition of the environmental protection obligations of
this Act, and of actions which members must take, or not
take, in order to comply with those obligations;
(9) to damage, remove, or destroy a historic site or
monument;
(10) to refuse permission to any authorized officer or
employee of the United States to board a vessel, vehicle, or
aircraft of the United States, or subject to the jurisdiction
of the United States, for the purpose of conducting any
search or inspection in connection with the enforcement of
this Act or any regulation promulgated or permit issued under
this Act;
(11) to forcibly assault, resist, oppose, impede,
intimidate, or interfere with any authorized officer or
employee of the United States in the conduct of any search or
inspection described in paragraph (10) of this subsection;
(12) to resist a lawful arrest or detention for any act
prohibited by this section;
(13) to interfere with, delay, or prevent, by any means,
the apprehension, arrest, or detention of another person,
knowing that such other person has committed any act
prohibited by this section;
(14) to violate any regulation promulgated under this Act,
or any term or condition of any permit issued to that person
under this Act; or
(15) to attempt to commit or cause to be committed any act
prohibited by this section.
(b) It is unlawful for any person, unless authorized by a
permit issued under this Act--
(1) to dispose of any waste in Antarctica (except as
otherwise authorized under the Act to Prevent Pollution from
Ships (33 USC 1901 et seq.)), including--
(A) to dispose of any waste from land into the sea in
Antarctica; and
(B) to incinerate any waste on land or ice shelves in
Antarctica, or on board vessels at points of embarcation or
debarcation, other than through the use at remote field sites
of incinerator toilets for human waste;
(2) to introduce into Antarctica any member of a non-native
species;
(3) to enter or engage in activities within any Antarctic
specially protected area;
(4) to engage in any taking or harmful interference in
Antarctica; or
(5) to receive, acquire, transport, offer for sale, sell,
purchase, import, export, or have custody, control or
possession of, any native bird, native mammal, or native
plant which the person knows, or in the exercise of due care
should have known, was taken in violation of this Act.
(c) Exception for Emergencies.--No act described in
subsections (a)(4), (a)(5), (a)(6), (a)(7), (a)(9), (a)(14),
(a)(15) or subsection (b) shall be unlawful if the person
committing the act reasonably believed that he or she did so
under emergency circumstances involving the safety of human
life or of ships, aircraft, or equipment or facilities of
high value, or the protection of the environment.
SEC. 5. PERMITS.
(a) In General.--The Director may, in accordance with this
section, issue a permit which authorizes the conduct within
Antarctica of an act described in section 4(b).
(b) Applications for Permits.--
(1) Applications for permits under this section shall be
made in such manner and form, and shall contain such
information, as the Director shall by regulation prescribe,
and shall be signed by the persons responsible for the
activities undertaken under the permit.
(2) The Director shall publish notice in the Federal
Register of each application which is made for a permit under
this section. The notice shall invite the submission by
interested parties, within 30 days (or such other reasonable
period greater than 30 days as the Director may determine)
after the publication of the notice, of written data,
comments, or views with respect to the application. Such
application, and any data, comments or views received, shall
be made available to the public.
(c) Cooperation with Other Agencies on Certain Permits.--
(1)(A) If the Director receives an application for a permit
under this section requesting authority to undertake any
action with respect to--
(i) any native mammal which is a marine mammal within the
meaning of section 3(5) of the Marine Mammal Protection Act
of 1972 (16 USC 1362(5));
(ii) any native mammal, native bird, native plant, or
native invertebrate which is an endangered species or
threatened species under the Endangered Species Act of 1973
(16 USC 1531 et seq.);
(iii) any native bird which is protected under the
Migratory Bird Treaty Act (16 USC 701 et seq.);
the Director shall submit a copy of the application to the
Secretary or to the Secretary of the Interior, as appropriate
(hereinafter in this subsection referred to as the
``appropriate Secretary'').
(B) After receiving a copy of any application from the
Director under subparagraph (A) of this paragraph the
appropriate Secretary shall promptly determine, and notify
the Director, whether or not any action proposed in the
application also requires a permit or other authorization
under any law administered by the appropriate Secretary.
(C) If the appropriate Secretary notifies the Director that
any action proposed in the application requires a permit or
other authorization under any law administered by the
appropriate Secretary, the Director may not issue a permit
under this section with respect to such action unless such
other required permit or authorization is issued by the
appropriate Secretary and a copy thereof is submitted to the
Director. The issuance of any permit or other authorization
by the appropriate Secretary for the carrying out of any
action with respect to any native mammal, native bird, native
invertebrate, or native plant shall not be deemed to entitle
the applicant concerned to the issuance by the Director of a
permit under this section.
(2)(A) If the Director receives an application for a permit
under this section requesting authority to undertake an
action described in section 4(b)(1), the Director shall
submit a copy of the application to the Administrator, and
the Director and Administrator shall promptly consult on the
application.
(B) The Director shall not issue, or deny the issuance of,
a permit under this section with respect to an action
described in section 4(b)(1) before consulting with the
Administrator.
(3)(A) If the Director receives an application for a permit
under this section requesting authority to undertake an
action described in section 4(b)(4) in connection with
unavoidable consequences of the construction or operation of
scientific support facilities, the Director shall submit a
copy of the application to the Secretary, and to the Director
and the Secretary shall promptly consult on the application.
(B) The Director shall not issue, or deny the issuance of,
a permit under this section with respect to such an action
without the written concurrence of the Secretary. The
Secretary shall inform the Director of such concurrence or
denial thereof within 60 days (unless the Secretary and
Director agree otherwise) after receiving a copy of the
application under paragraph (3)(A) of this subsection.
(4) The Director shall provide the Administrator with a
copy of any permit application received for an activity which
may be subject to regulations promulgated under section 7(c).
The Director shall not issue such a permit without written
notice from the Administrator that the applicable
requirements of such regulations have been met. The
Administrator shall provide the Director with written notice
as to whether such requirements have been met within sixty
days after receiving a copy of the application.
(d) Issuance of Permits.--As soon as practicable after
receiving any application for a permit under this section,
or, in the case of any application to which subsection (c) of
this section applies, as soon as practicable after the
applicable requirements of such subsection are complied with,
the Director shall issue, or deny the issuance of, the
permit. Within 10 days after the date of the issuance or
denial of a permit under this subsection, the Director shall
publish notice of the issuance or denial in the Federal
Register, including a description of any terms and conditions
of the permit.
(e) Modification, Suspension, and Revocation.--
(1) The Director may modify, suspend, or revoke, in whole
or part, any permit issued under this section--
(A) if there is any change in conditions which makes the
permit inconsistent with the provisions of this Act or the
Protocol;
(B) in any case in which there has been any violation of
this Act, including a violation of any regulation promulgated
under this Act, or of any term or condition of the permit; or
(C) in order to make the permit consistent with any change
made, after the date of issuance of the permit, to any
regulation promulgated under section 6.
(2) If consultation with the Administrator was required
before issuance of the permit, under subsection (c)(2) of
this section, then the Director shall not modify the permit
before consulting with the Administrator with respect to the
modification.
(3) If the concurrence of the Secretary was required before
issuance of the permit, under subsection (c)(3) of this
section, then the Director shall not modify the permit
without receiving the concurrence of the Secretary with
respect to the modification.
(4) The Director shall publish notice of the modification,
suspension, or revocation of any permit in the Federal
Register within 10 days after the date of the decision,
including the reasons for the decision.
(5) Any permit modification, suspension, or revocation
under paragraph (1)(B) of this subsection shall be undertaken
pursuant to the provisions of section 15.
(f) Permit Fees.--The Director may establish and charge
fees for processing applications for permits under this
section. The amount of the fees shall be commensurate with
the administrative costs incurred by the Director in
processing the application. Fees received will be credited to
the appropriation or appropriations designed by the Director.
(g) Terms and Conditions of Permits.--
(1) Each permit issued under this section shall specify.--
(A) the period during which the permit is valid; and
(B) any other terms and conditions the Director considers
necessary and appropriate to ensure that any action
authorized under the permit is carried out in a manner
consistent with this Act and the regulations promulgated
under the Act, including appropriate record-keeping,
reporting, and compliance monitoring requirements, and other
terms and conditions relating to inspection of documents and
records.
(2) A permit which authorizes the disposal of any waste in
Antarctica shall--
(A) be issued only if the Director determines, after
consultation with the Administrator and based on all relevant
information, that such disposal will not pose a substantial
hazard to human health of the Antarctic environment;
(B) specify the amount of waste which may be disposed of in
Antarctica, how the waste shall be managed prior to disposal,
and the conditions for the disposal;
(C) authorize the disposal of sewage or domestic liquid
wastes from land directly into the sea only if the Director
has taken fully into account the provisions of Article 3 of,
and Annex III to, the Protocol, and provided that:
(i) the Director has determined that such disposal occurs,
if practicable, where conditions exist for initial dilution
and rapid dispersal; and
(ii) if generated in large quantities, such waste shall be
treated by maceration or a treatment that the Director has
determined provides greater environmental protection than
does maceration;
(D) authorize the disposal of the by-product of sewage
treatment by the rotary biological contacter process or
similar processes from land into the sea, provided that the
Director has determined that such disposal does not adversely
affect the local environment;
(E) authorize the disposal of waste through incineration
only if the Director has determined that the incineration
will meet the standards established by regulation under
section 6; and
(F) not authorize any disposal of prohibited waste in
Antarctica.
All determinations by the Director under this paragraph shall
be made in consultation with the Administrator.
(3) a permit which authorizes a taking or a harmful
interference within Antarctica--
(A) may be issued only for the purpose of providing--
(i) specimens for scientific study or scientific
information;
(ii) specimens for museums, herbaria, zoological or
botanical gardens, or other educational or cultural
institutions or uses; or
(iii) for consequences of scientific activities, or of the
construction and operation of scientific support facilities,
which the Director has determined are unavoidable; and
(B) shall require that, as determined by the Director--
(i) no more native mammals, native birds, or native plants
are taken than are strictly necessary to meet the purposes
set forth in subparagraph (A) of this paragraph;
(ii) only small numbers of native mammals or native birds
are killed, and in no case more native mammals or native
birds are killed from local populations than can, in
combination with other permitted takings, normally be
replaced by natural reproduction in the following season; and
(iii) the diversity of species, as well as the habitats
essential to their existence, and the balance of the
ecological systems existing within Antarctica are maintained.
(C) shall specify--
(i) the number and species of native mammals, native birds,
native invertebrates, or native plants to which the permit
applies; and
(ii) the manner in which the taking or harmful interference
shall be conducted (which manner, as determined by the
Director, involves the least degree of pain and suffering
practicable), the period of time within which it must be
conducted, the are in which it must be conducted, and the
person who will take the action.
All determinations made by the Director under this paragraph
in connection with permits for which the concurrence of the
Secretary under subsection (c)(3) of this section is required
shall be made only with the concurrence of the Secretary.
(4) A permit which authorizes a taking within Antarctica of
a member of a specially protected species must meet the
requirements contained in paragraph (3) of this subsection,
and in addition may be issued only if the Director determines
that--
(A) there is a compelling scientific purpose for the
taking;
(B) the taking will not jeopardize any existing natural
ecological system or the survival or recovery of the species
or local population; and
(C) the taking uses non-lethal techniques, if appropriate.
All determinations made by the Director under this paragraph
in connection with permits for which the concurrence of the
Secretary under subsection (c)(3) of this section is required
shall be made only with the concurrence of the Secretary.
(5) A permit which authorizes the introduction of a member
of a non-native species into Antarctica--
(A) may not be issued unless the non-native species is
listed in Appendix B to Annex II to the Protocol;
(B) shall specify the number, species, and, if appropriate,
age and sex of the animals or plants to which the permit
applies;
(C) shall specify the precautions to be taken to prevent
escape or contact with native fauna and flora;
(D) shall require that any animals or plants to which the
permit applies, and any progeny, shall, prior to expiration
of the permit, be removed from Antarctica or disposed of by
incineration or equally effective means that eliminates risk
to native fauna and flora;
(E) shall not permit the importation of dogs or live
poultry or other living birds; and
(F) shall require that precautions be taken to prevent the
release into the environment of micro-organisms (e.g.,
viruses, bacteria, parasites, yeasts and fungi) not present
in native fauna and flora.
(6) A permit which authorizes entry into and engaging in
activities within an Antarctic specially protected area
shall--
(A) if a management plan relating to the area has been
approved, be issued only--
(i) to enter and engage in activities within the
specifically protected area which the Director has determined
are in accordance with the requirements of the management
plan relating to that area; and
(ii) if accompanied by the relevant sections of the
management plan;
(B) if a management plan relating to the area has not been
approved, be issued by only--
(i) if entry is necessary to accomplish a compelling
scientific purpose which the Director has determined cannot
be served elsewhere; and
(ii) if the Director has determined that the actions allow
under the permit will not jeopardize the natural ecological
system existing in the area; and
(C) specify--
(i) the extent and location of the specially protected
area;
(ii) the activities authorized;
(iii) the period of time within which the authorized
activities must be conducted, the area in which they must be
conducted, and the person who is authorized to conduct them;
and
(iv) other conditions imposed by the management plan, if
any.
(7) No permit shall be required for the importation of food
into Antarctica, except that--
(A) no live animals may be imported for this purpose;
(B) all plants and animal parts shall be kept under
carefully controlled conditions and disposed of in accordance
with the provisions of this Act; and
(C) before dressed poultry is packaged for shipment to
Antarctica, it shall be inspected for evidence of disease,
such as Newcastle's disease, tuberculosis, and yeast
infection.
SEC. 6. REGULATIONS.
(a) In General.--The Director, the Secretary, the
Administrator, the Secretary of the Department in which the
Coast Guard is operating, and the Secretary of State shall
promulgate, in accordance with this section, such regulations
as are necessary and appropriate to implement the provisions
of this Act and the Protocol.
(b) Regulations To Be Promulgated by the Secretary.--The
Secretary shall promulgate such regulations relating to
Antarctic mineral resource activity as the Secretary deems
are necessary and appropriate to implement the provisions of
this Act and the Protocol.
(c) Regulations To Be Promulgated by the Director.--The
Director shall promulgate regulations which--
(1) designate as native species--
(A) each species of the class Aves;
(B) each species of the class Mammalia;
(C) each species of plant; and
(D) each species of invertebrate;
which is indigenous to Antarctica or which occurs there
seasonally through natural migrations;
(2) specify those actions which must, and those actions
which must not, be taken within Antarctica in order to
protect, in accordance with the applicable provisions of the
Protocol, members of each native species designated under
subsection (c)(1) of this section;
(3) designate as a specially protected species any species
of native mammal, native bird, native invertebrate, or native
plant which is--
(A) listed in Appendix A to Annex II to the Protocol; or
(B) approved by the United States for special protection
under the Protocol;
(4) designate as a non-native species that may be
introduced into Antarctica only those species listed in
Appendix B to Annex II to the Protocol;
(5) identify each area designated as a Antarctic specially
protected area or specially managed area under the Protocol,
and implement the provisions of the management plan
applicable to such area;
(6) identify each historic site and monument--
(A) listed under Article 8 of Annex V to the Protocol; or
(B) approved by the United States for listing as a historic
site or monument;
(7) require that any person who organizes, sponsors,
operates, or promotes a non-governmental expedition to
Antarctica, and who does business in the United States, to
notify all members of the expedition of the environmental
protection obligations of this Act, and of actions which
members must take, or not take, in order to comply with those
obligations; and
(8) set forth the form, content, and manner of filing, if
applicable, of all notices, reports, declarations, or other
documentation which may be required with respect to the
carrying out of any act for which a permit is required under
this Act.
(d) Residual Regulatory Authority of the Director.--In
addition to the specific authorities set forth in subsection
(c) of this section, the Director may promulgate such
regulations relating to the conservation of Antarctic fauna
and flora or area protection in Antarctica as the Director
deems necessary and appropriate to implement the provisions
of the Protocol, including but not limited to regulations
which address a situation not covered by the annexes to the
Protocol or in which a more rigorous or supplemental
requirement is necessary.
(e) Regulations To Be Promulgated By the Director With the
Concurrence of the Administrator.--The Director, with the
concurrence of the Administrator, shall promulgate
regulations which--
(1) designate as prohibited products--
(A) polychlorinated biphenyls;
(B) non-sterile soil;
(C) polystyrene beads or chips or similar forms of
packaging;
(D) pesticides (other than those required for scientific,
medical or hygiene purposes); and
(E) substances which the Parties to the Protocol or Treaty
agree should be banned from use in Antarctica;
(2) designate as prohibited waste--
(A) radioactive materials;
(B) electrical batteries;
(C) liquid and solid fuel;
(D) wastes containing harmful levels of heavy metals or
acutely toxic or harmful persistent compounds;
(E) polyvinyl chloride, polyurethane foam, polystyrene
foam, rubber and lubricating oils, treated timbers and other
products which contain additives that could produce harmful
emissions if incinerated;
(F) all other plastic wastes, except low density
polyethylene containers (such as bags for storing wastes),
provided that the capacity exists to incinerate such
containers under paragraph (5) of this subsection, in which
case such containers shall be incinerated;
(G) fuel drums and other solid, non-combustible wastes
(provided that their removal would not result in greater
adverse environmental impact than leaving them in their
existing locations);
(H) unless incinerated, autoclaved, or otherwise treated to
be made sterile--
(i) residues of carcasses of imported animals;
(ii) laboratory culture of micro-organisms and plant
pathogens;
(iii) medical wastes; and
(iv) introduced avian products; and
(I) the solid residue of incineration;
(3) provide that--
(A) prohibited waste shall be removed from Antarctica;
(B) sewage, domestic liquid waste, and other liquid waste
(other than prohibited waste) shall, to the maximum extent
practicable, be removed from Antarctica;
(C) waste at field camps shall be transported to supporting
stations or vessels for disposal in accordance with this Act;
and
(D) wastes removed from Antarctica shall be disposed of in
accordance with applicable domestic and international law;
(4) provide that sewage, domestic liquid waste, and other
liquid waste (other than prohibited waste) to the maximum
extent practicable are not disposed of onto sea ice, ice
shelves, or the grounded ice-sheet, provided that such wastes
which are generated by stations located inland on ice shelves
or on the grounded ice-sheet may be disposed of in deep ice
pits if such disposal is the only practical option, as long
as such pits are not located on known ice-flow lines which
terminate at ice-free land areas or in areas of high
ablation;
(5) if the Director determines, in consultation with the
Administrator, through sound waste management planning, to
allow incineration as a means of waste disposal, provide
standards for incineration which--
(A) to the maximum extent practicable, reduce harmful
emissions;
(B) take fully into account the provisions of Article 3 of
the Protocol;
(C) are based on the criteria contained in sections
129(a)(2), 129(a)(4), and 129(c) of the Clean Air Act (42 USC
7429(a)(2), (a)(4), and (c)), taking into account the unique
circumstances of Antarctic logistics, operations, and the
Antarctic environment; and
(D) take into account any emission standards and equipment
guidelines which may be recommended by the Committee for
Environmental Protection and the Scientific Committee on
Antarctic Research.
If it has been determined to use incineration as a means of
waste disposal, the Director, in consultation with the
Administrator, shall review such determination not later than
five years after the initial promulgation of any incineration
standards, and at five-year intervals thereafter. Such review
shall take into account technological advances in waste
disposal and removal, new information concerning effects on
human health and the environment, and the state of the
Antarctic environment;
(6) provide that all wastes to be removed from Antarctica,
or disposed of in Antarctica, shall be stored in such a way
as to prevent their release into the environment;
(7) provide, with respect to the United States Antarctic
Program and any other United States Government program in
Antarctica, in accordance with Articles 8, 9 and 10 of Annex
III to the Protocol, for--
(A) the establishment of a waster disposal classification
system;
(B) the preparation, and annual review and update, of waste
management plans, taking into account Article 1(3) of Annex
III to the Protocol; and
(C) other waste management activities of such programs; and
(8) provide that past and present waste disposal sites on
land and abandoned work sites of Antarctic activities shall
be cleaned up by the generator of such wastes and the user of
such sites, provided that--
(A) such regulations shall not require the removal of any
structure designated as a historic site or monument, or the
removal of any structure or waste material in circumstances
where the removal by any practical option would result in
greater adverse environmental impact than leaving the
structure or waste material in its existing location; and
(B) such regulations shall take into account considerations
of practicality, and of the safety of human life.
(f) Residual Regulatory Authority of the Director With the
Concurrence of the Administrator.--In addition to the
specific authorities set forth in subsection (e) of this
section, the Director, with the concurrence of the
Administrator, may--
(1) promulgate such regulations relating to waste disposal
and waste management in Antarctica as the Director deems
necessary and appropriate to implement the provisions of the
Protocol, including but not limited to regulations which
address a situation not covered by the annexes to the
Protocol or in which a more rigorous or supplemental
requirement is necessary; and
(2) designate additional items as prohibited products or
prohibited waste under subsection (e)(1) and (e)(2) of this
section, when the Director determines that such designation
is necessary and appropriate to protect human health or the
Antarctic environment.
(g) Regulations To Be Promulgated by the Secretary of
State.--The Secretary of State shall promulgate such
regulations as are necessary and appropriate to implement,
with respect to any person, paragraph 5 of Article VII of the
Treaty, pertaining to the filing of advance notifications of
expeditions to and within Antarctica, including a requirement
for such person to describe how he or she plans to comply
with any regulations promulgated under subsection (h) of this
section.
(h) Regulations with Respect to Contingency Planning and
Response Action.--
(1) The Secretary of the Department in which the Coast
Guard is operating in addition to the regulations specified
in section 9, shall promulgate, with the concurrence of the
Director, such regulations as are necessary and appropriate
to implement the provisions of Article 15 of the Protocol
with respect to vessels.
(2) The Director shall promulgate such regulations as are
necessary and appropriate to implement the provisions of
Article 15 of the Protocol with respect to land areas and ice
shelves in Antarctica.
(i) Residual Regulatory Authority of the Secretary of the
Department in Which the Coast Guard is Operating.--In
addition to the specific authority set forth in subsection
(h) of this section and in section 9, the Secretary of the
Department in which the Coast Guard is operating may
promulgate such regulations relating to marine pollution in
Antarctica as the Secretary of said Department deems
necessary and appropriate to implement the provisions of the
Protocol, including but not limited to regulations which
address a situation not covered by the annexes to the
Protocol or in which a more rigorous or supplemental
requirement is necessary.
(j) Time Period for Regulations.--The regulations to be
promulgated under subsections (c) and (g) of this section
shall be promulgated within 24 months after the date of
enactment of this Act. The regulations to be promulgated
under subsection (e) of this section shall be promulgated
within 36 months after the date of enactment of this Act.
SEC. 7. ENVIRONMENTAL IMPACT ASSESSMENT.
(a) Federal Activities.--
(1)(A) It is the intent of Congress to implement U.S.
obligations under Article 8 of and Annex I to the Protocol by
applying the National Environmental Policy Act (42 USC 4321
et seq.) to proposals for federal agency activities in
Antarctica, as specified in this section.
(B) The obligations contained in section 102(2)(C) of the
National Environmental Policy Act (42 USC 4332(2)(C)) shall
apply to proposals for federal agency activities occurring in
Antarctica and affecting the quality of the human environment
in Antarctica or dependent or associated ecosystems, as
specified in this section.
(2)(A) Unless an agency which proposes to conduct a federal
activity in Antarctica determines that the activity will have
less than a minor or transitory impact, or unless a
comprehensive environment evaluation is being prepared in
accordance with paragraph (2)(C) of this subsection, the
agency shall prepare an initial environmental evaluation, in
accordance with Article 2 of Annex I to the Protocol.
(B) If the agency determines, through the preparation of
the initial environmental evaluation, that the proposed
federal activity is likely to have a minor or transitory
impact, the activity may proceed if appropriate procedures
are put in place to assess and verify the impact of the
activity.
(C) If the agency determines, through the preparation of
the initial environmental evaluation or otherwise, that a
proposed federal activity is likely to have more than a minor
or transitory impact, the agency shall prepare a
comprehensive environmental evaluation in accordance with
Article 3 of Annex I to the Protocol, and shall make such
comprehensive environmental evaluation publicly available for
comment.
(3) Any agency decision under this section on whether a
proposed federal activity, to which paragraph (2)(C) of this
subsection applies, should proceed, and, if so, whether in
its original or in a modified form, shall be based on the
comprehensive environmental evaluation as well as other
considerations which the agency, in the exercise of its
discretion, deems relevant.
(4) For the purposes of this section:
(A) the term ``federal activity'' includes, but is not
limited to, activities conducted under a federal agency
research program in Antarctica, whether or not conducted by a
federal agency; and
(B) activities that may have a ``significant'' impact,
within the meaning of section 102(2)(C) of the National
Environmental Policy Act (42 USC 4332(2)(C)), are deemed to
fall within the category of activities that are likely to
have ``more than a minor or transitory impact''.
(b) Federal Activities Carried Out Jointly With Foreign
Governments.--
(1) For the purposes of this subsection, ``Antarctic joint
activity'' means any federal activity in Antarctica which is
proposed to be conducted, or which is conducted, jointly or
in cooperation with one or more foreign governments, as
defined in regulations promulgated by such agencies as the
President may designate.
(2) Where the Secretary of State, in cooperation with the
lead U.S. agency planning an Antarctic joint activity and
with the other government or governments involved, determines
that a government other than the United States, which has
signed or acceded to the Protocol, is coordinating the
implementation of environmental impact assessment procedures
for that activity, the requirements of subsection (a) of this
section shall not apply in respect of that activity.
(3) Determinations under paragraph (2) of this subsection,
and agency actions and decisions in connection with
assessments of impacts of Antarctic joint activities, shall
not be subject to judicial review.
(c) Nongovernmental Activities.--
(1) The Administrator shall, within 24 months after the
date of enactment of this Act, promulgate regulations to
provide for--
(A) the environmental impact assessment of nongovernmental
activities, including tourism, for which the United States is
required to give advance notice under paragraph 5 of Article
VII of the Treaty; and
(B) coordination of the review of information regarding
environmental impact assessment received from other Parties
under the Protocol.
(2) Such regulations shall be consistent with the
provisions of Annex I to the Protocol.
(d) Decision To Proceed.--
(1) No decision shall be taken to proceed with an activity
for which a comprehensive environmental evaluation is
prepared under this section unless there has been an
opportunity for consideration of the draft comprehensive
environmental evaluation at an Antarctic Treaty Consultative
Meeting, provided that no decision to proceed with a proposed
activity shall be delayed through the operation of this
subsection for more than 15 months from the date of
circulation of the draft comprehensive environmental
evaluation.
(2) The Secretary of State shall circulate the final
comprehensive environmental evaluation, in accordance with
Article 3(6) of Annex I to the Protocol, at least 60 days
before the commencement of the activity in Antarctica.
(e) Cases of Emergency.--The requirements set out in this
section, and in regulations promulgated under it, shall not
apply in cases of emergency relating to the safety of human
life or of ships, aircraft, or equipment and facilities of
high value, or the protection of the environment, which
require an activity to be undertaken without fulfilling these
requirements.
(f) Judicial Review. Agency compliance with subsection (a)
of this section shall be reviewable under sections 701 et
seq. of Title 5, subject to the provisions of subsection
(b)(3) of this section.
(g) Reporting.--The Secretary of State and the
Administration shall report annually to the Congress
regarding implementation of this section. Their reports shall
include information provided under Article 6 of Annex I to
the Protocol, copies of all comprehensive environmental
evaluations circulated and all public comments received, as
well as descriptions of any Antarctic joint activities and
the environmental impact documentation associated therewith.
(h) Exclusive Mechanism.--Notwithstanding any other
provision of law, the requirements of the National
Environmental Policy Act as specified in this section shall
constitute the sole and exclusive statutory obligations of
the federal agencies with regard to assessing the
environmental impacts of proposed federal activities
occurring in Antarctica.
(i) Decisions on Permit Applications.--The provisions of
this section requiring environmental impact assessments
(including initial environmental evaluations and
comprehensive environmental evaluations) shall not apply to
permitting decisions under section 5.
SEC. 8. MONITORING.
The Director, in consultation with the Administrator, shall
promulgate such regulations as are necessary and appropriate,
in accordance with Article 8 of and Annex I to the Protocol,
to provide for procedures to assess and verify the impact
over time of any activity that proceeds following the
completion of a comprehensive environmental evaluation and,
as appropriate, the impact over time of activities that
proceed after a determination that they are likely to have no
more than a minor or transitory impact.
SEC. 9. MARINE POLLUTION--AMENDMENTS TO THE ACT TO PREVENT
POLLUTION FROM SHIPS, 33 USC 1901 ET SEQ.
(a) References.--All references in this section to
amendment or repeal mean amendment or repeal of a section,
subsection or provision of the Act to Prevent Pollution from
Ships (33 USC 1901 et seq.)
(b) Definitions.--Subsection (a) of section 1901 of Title
33 is amended--
(1) in paragraph (8) by striking ``and'' after the
semicolon;
(2) in paragraph (9) by striking the period and inserting
``; and''; and
(3) by adding at the end the following new paragraphs:
``(10) `Antarctica' means the area south of 60 degrees
south latitude; and
(11) `Antarctic Protocol' means the Protocol on
Environmental Protection to the Antarctic Treaty, signed
October 4, 1991, in Madrid, and all annexes thereto, and
includes any future amendments thereto which have entered
into force.''
(c) Application of Annex IV of the Protocol on
Environmental Protection to the Antarctic Treaty.--Section
1901 of Title 33 is further amended by adding a new
subsection (c) as follows:
``(c) For the purposes of this chapter, the requirements of
Annex IV of the Antarctic Protocol shall apply in Antarctica
to all vessels over which the United States has jurisdiction,
except for vessels listed in 33 U.S.C. 1902(b).''
(d) Administration.--Subsection (a) of section 1903 of
Title 33 is amended by inserting in the first sentence ``,
Annex IV to the Antarctic Protocol'' after ``the MARPOL
Protocol''.
(e) Regulations.--Subsection (b)(1) of section 1903 of
Title 33 is amended by inserting ``, Annex IV to the
Antarctic Protocol'' after ``the MARPOL Protocol''.
(f) Violations.--
(1) Subsection (a) of section 1907 of Title 33 is amended
by inserting in the first sentence ``, Annex IV to the
Antarctic Protocol'' after ``the MARPOL Protocol''.
(2) Subsection (b) of section 1907 of Title 33 is amended
by striking the fourth and fifth sentences and replacing them
with the following:
``With respect to the MARPOL Protocol, upon completion of
the investigation, the Secretary shall take the action
required by the MARPOL Protocol and whatever further actions
he or she considers appropriate under the circumstances. If
the initial evidence was provided by a party to the MARPOL
Protocol, the Secretary, acting through the Secretary of
State, shall inform that party of the action taken or
proposed. With respect to Annex IV to the Antarctic Protocol,
upon completion of the investigation, the Secretary shall
take any actions required by the Antarctic Protocol and
whatever further actions he or she considers appropriate
under the circumstances.''
(g) Penalties.--Section 1908 of Title 33 is amended--
(1) in subsection (a) by inserting ``Annex IV to the
Antarctic Protocol,'' after ``the MARPOL Protocol,'';
(2) in subsection (b) by inserting ``Annex IV to the
Antarctic Protocol,'' after ``the MARPOL Protocol,'' in both
paragraphs (1) and (2);
(3) in subsection (d) by inserting ``Annex IV to the
Antarctic Protocol,'' after ``the MARPOL Protocol,''.
SEC. 10. REPRESENTATIVE TO THE COMMITTEE FOR ENVIRONMENTAL
PROTECTION.
(a) The Secretary of State, with the concurrence of the
Administrator, the Director and the Secretary, shall
designate an officer or employee of the United States to be
the United States representative of the Committee for
Environmental Protection.
(b) The officer or employee designated shall have the
technical qualifications necessary to serve in this capacity.
(c) The United States representative shall receive no
additional compensation by reason of service as such
representative.
SEC. 11. OVERSIGHT.
(a) Report and On-Site Inspections.--
(1) The Secretary of State, in conjunction with the
Administrator and the Secretary, shall, at appropriate
intervals of between two and five years, conduct an
inspection of the United States Antarctic Program, including
on-site inspections of stations, field camps, and operations,
and review of any other relevant information, including
information received from the Director, with a view to
examining the overall compliance of the United States
Antarctic Program with this Act and the Protocol.
(2) The inspection of the United States Antarctic Program
shall be conducted by a team designated by the Secretary of
State, the Administrator, and the Secretary. The team shall
comprise no more members than are necessary and appropriate
to carry out its mandate, and shall include technically
qualified experts, both governmental and non-governmental.
(3) The National Science Foundation shall provide all
transportation and logistical support necessary to allow the
team to conduct the on-site inspections in Antarctica, and
shall cooperate to the fullest extent possible in meeting
requests for documents, other information, and assistance
necessary for the inspection team to carry out its work. The
costs of transportation to and from Antarctica shall be borne
by the Department of State, the Environmental Protection
Agency, and the Department of Commerce.
(4) The inspection team shall prepare a draft report which
documents its findings on the compliance of the United States
Antarctic Program with the provisions of this Act and the
Protocol, shall specify any examples of failures of
compliance, and shall make recommendations. The inspection
team shall provide the draft report to the Director for
review and comment for a period not to exceed 120 days.
(b) Publication.--The final report of the inspection team,
including any comments by the Director, shall promptly be
made public. The Director shall publish notice of the report
and the response in the Federal Register.
SEC. 12. STUDY OF ANTARCTIC TOURISM.
The Department of State shall coordinate an interagency
study of tourism in Antarctica (including recommendations
where appropriate) to determine whether or not additional
measures should be taken with respect to Antarctic tourist
activities. This study shall be completed within 24 months
after the date of enactment of this Act.
SEC. 13. RULE MAKING AND PETITION FOR REGULATIONS.
(a) Rule Making.--Promulgation of regulations under this
Act shall be in accordance with section 553 of Title 5.
(b) Petition for Regulations.--Any person may petition the
implementing agency for the promulgation, amendment, or
repeal of any regulation under this Act within its authority.
Within 180 days of receipt of such a petition, the
implementing agency shall grant or deny the petition. If the
petition is denied, the implementing agency shall provide
notice of such denial and the reasons therefor. If the
petition is granted, the final regulations shall be
promulgated within twenty-four months of the granting of the
petition.
SEC. 14. JUDICIAL REVIEW AND CITIZEN SUITS.
(a) Judicial Review. Any judicial review of final
regulations promulgated under this act, of the denial of any
petition for the promulgation, amendment, or repeal of any
regulation under this Act, or of any final agency action on
any permit under section 5 shall be in accordance with
sections 701 through 706 of Title 5, except that--
(1) any petition for such review may be filed only in the
United States Court of Appeals for the District of Columbia;
(2) such petition shall be filed within thirty days from
the date of notice of final agency action;
(3) action with respect to which review could have been
obtained under this section shall not be subject to judicial
review in any civil or criminal proceeding for enforcement;
(4) only an objection which was raised with reasonable
specificity during the period for public comment may be
raised during judicial review; and
(5) the filing of a petition for reconsideration shall not
postpone the effectiveness of any regulation.
(b) Citizens' Suits.--
(1) Except as provided in paragraph (2) of this subsection,
any person may commence a civil action under this subsection
on his or her own behalf--
(A) against any person (including (i) the United States,
and (ii) any other governmental instrumentality or agency to
the extent permitted by the Eleventh Amendment to the
Constitution) who is alleged to have violated any permit,
regulation, or prohibition which has become effective under
this Act, provided that no such action may be brought against
any individual, grantee, or grantee institution based on an
alleged violation committed while the individual, grantee, or
grantee institution was engaged in scientific research in
Antarctica in connection with a federal agency program of
research in Antarctica; and
(B) against the implementing agency where there is alleged
a failure of the implementing agency to perform any action
which, under section 6(j), section 7(c)(1), or section 13(b)
is not discretionary with the implementing agency.
The U.S. District Court for the District of Columbia shall
have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce
such a permit, regulation, or prohibition, or to order the
implementing agency to perform such act or duty, as the case
may be, and, with respect to actions under subparagraph (A)
of this paragraph, shall have jurisdiction to impose
appropriate civil penalties not to exceed 50,000 dollars per
day for each violation, taking into account the factors in
section 16(b). The U.S. District Court for the District of
Columbia shall have jurisdiction to compel (consistent with
subparagraph (B) of this paragraph) agency action
unreasonably delayed. In any such action for unreasonable
delay, notice to the implementing agency shall be provided
180 days before commencing such action.
(2) No action may be commenced--
(A) under paragraph (1)(A) of this subsection--
(i) prior to sixty days after the plaintiff has given
notice of the alleged violation to the implementing agency
and to any alleged violator of the permit, regulation, or
prohibition; or
(ii) if the implementing agency has commenced and is
diligently prosecuting an enforcement action; or
(B) under paragraph (1)(B) of this subsection, prior to
sixty days after the plaintiff has given notice of such
action to the implementing agency.
Notice under this paragraph shall be given in such manner
as the implementing agency shall prescribe by regulation.
(3) Any person may request the implementing agency to
commence an action against any individual, grantee, or
grantee institution who is alleged to have violated any
permit, regulation, or prohibition which has become effective
under this Act, while the individual, grantee, or grantee
institution was engaged in scientific research in Antarctica
in connection with a federal agency program of research in
Antarctica. A copy of such request shall be given to the
alleged violator. Within sixty days after such request is
made to the implementing agency, the implementing agency
shall either--
(A) commence an action against the alleged violator; or
(B) provide to the person making the request a written
response that (i) states the implementing agency's decision
not to take enforcement action against the alleged violator
and (ii) describes any other action the implementing agency
has taken or intends to take in connection with the alleged
violation.
The response of the implementing agency under paragraph
(3)(B) of this subsection shall not be subject to judicial
review.
(4) In any action under this subsection, the implementing
agency, if not a party, may intervene as a matter of right at
any time in the proceeding. A judgment in an action under
this subsection to which the United States is not a party
shall not, however, have any binding effect upon the United
States.
(5) Whenever any action is brought under this subsection,
the plaintiff shall serve a copy of the complaint on the
Attorney General of the United states and on the implementing
agency. No consent judgment shall be entered in an action
brought under this subsection in which the United States is
not a party prior to 45 days following the receipt of a copy
of the proposed consent judgment by the Attorney General and
the implementing agency during which time the Government may
submit its comments on the proposed consent judgment to the
court and parties or may intervene as a matter of right.
(6) Nothing in this subsection shall restrict any right
which any person or class of person may have under any
statute or common law to seek enforcement of any permit,
regulation, or prohibition, or to seek any other relief.
(c) Costs of Litigation. In any judicial proceeding under
this section, the court may award costs of litigation
(including reasonable attorney and expert witness fees) to
any prevailing or substantially prevailing party whenever the
court determines that such award is appropriate. The court
may, if a temporary restraining order or preliminary
injunction is sought, require the filing of a bond or
equivalent security in accordance with the Federal Rules of
Civil Procedure.
(d) Federal Compliance and Waiver of Sovereign Immunity.
(1) Each department, agency, and instrumentality of the
executive, legislative, and judicial branches of the federal
government (i) having jurisdiction over any facility or site
in Antarctica, or (ii) engaged in any activity pursuant to
the Protocol, this Act or any regulation promulgated or
permit issued hereunder, shall be subject to, and comply
with, all federal requirements, both substantive and
procedural (including any requirement for permits or
reporting or any provisions for injunctive relief and such
sanctions as may be imposed by a court to enforce such
relief), respecting compliance with this Act and any
regulation promulgated or permit issued hereunder, in the
same manner and to the same extent, as any person is subject
to such requirements, including the payment of reasonable
service charges. The federal substantive and procedural
requirements referred to in this paragraph include, but are
not limited to, all administrative orders and all civil and
administrative penalties and fines, regardless of whether
such penalties or fines are punitive or coercive in nature or
are imposed for isolated, intermittent, or continuing
violations. The United States hereby expressly waives any
immunity otherwise applicable to the United States with
respect to any such substantive or procedural requirement
(including, but not limited to, any injunctive relief,
administrative order or civil or administrative penalty or
fine referred to in the preceding sentence, or reasonable
service charge). The reasonable service charges referred to
in this paragraph include, but are not limited to, fees or
charges assessed in connection with the processing and
issuance of permits, renewal of permits, amendments to
permits, review of plans, studies, and other documents, and
inspection and monitoring of facilities.
(2) Neither the United States, nor any agent, employee, or
officer thereof, shall be immune or exempt from any process
or sanction of any federal court with respect to the
enforcement of any such injunctive relief. No agent,
employee, or officer of the United States shall be personally
liable for any civil penalty under any section of this Act
with respect to any act or omission within the scope of the
official duties of the agent, employee, or officer. 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 law, but no
department, agency, or instrumentality of the federal
government shall be subject to any such sanction. The
President may exempt any Antarctic facility or activity of
any department, agency, or instrumentality in the executive
branch from compliance with such a requirement if he
determines it to be in the paramount interest of the United
States to do so. No such exemption shall be granted due to
lack of appropriation unless the President shall have
specifically requested such appropriation as a part of the
budgetary process and the Congress shall have failed to make
available such requested appropriation. Any exemption shall
be for a period not in excess of one year, but additional
exemptions may be granted for periods not to exceed one year
upon the President's making a new determination. The
President shall report each January to the Congress all
exemptions from the requirements of this section granted
during the preceding calendar year, together with his or her
reason for granting each such exemption.
SEC. 15. ADMINISTRATIVE ENFORCEMENT.
(a) Administrative Compliance Orders.--
(1) Whenever, on the basis of any information, the
implementing agency determines that any person has violated
or is in violation of any requirement of this Act, or any
permit issued or regulation promulgated under this Act, such
agency may, after notice and opportunity for a hearing in
accordance with subsection (c) of this section, issue an
order requiring compliance immediately or within a specified
time period, or both.
(2) Upon the failure of any person against whom a
compliance order is issued to take corrective action within
the time specified in the order, and after notice and an
opportunity for a hearing in accordance with subsection (c)
of this section, the implementing agency may request the
Attorney General to institute a civil action in either the
U.S. District Court for the District of Columbia or for any
district in which such person is found, resides or transacts
business to enforce such order.
(b) Assessment of Penalties.--
(1) Any person who is found by the implementing agency,
after notice and opportunity for a hearing in accordance with
subsection (c) of this section, to have committed any act
prohibited by section 4 shall be liable to the United States
for a civil penalty. The amount of the civil penalty shall
not exceed 50,000 dollars for each violation. Each day of a
continuing violation shall constitute a separate offense. The
amount of such civil penalty shall be assessed by written
notice. In determining the amount of such penalty, the
implementing agency shall take into account the nature,
circumstances, extent, and gravity of the prohibited acts
committed, and, with respect to the violator, the degree of
culpability, any history of prior offenses, any economic
benefit derived from the violation, and such other matters as
justice may require, to the extent such information is
reasonably available to the implementing agency.
(2) The implementing agency may compromise, modify, or
remit, with or without conditions, any civil penalty which is
subject to imposition or which has been imposed under this
section.
(c) Hearings.--Hearings for administrative actions under
this section shall be conducted in accordance with section
554 of Title 5. For the purposes of conducting any such
hearing, the implementing agency may issue subpoenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, and documents, and may administer
oaths. Witnesses summoned shall be paid the same fees and
mileage that are paid to witnesses in the courts of the
United States. In case of contempt or refusal to obey a
subpoena served upon any person under this subsection, the
district court of the United States for any district in which
such person is found, resides, or transacts business, upon
application by the United States and after notice to such
person, shall have jurisdiction to issue an order requiring
such person to appear and give testimony before the
implementing agency or to appear and produce documents before
the implementing agency, or both, and any failure to obey
such order of the court may be punished by such court as a
contempt thereof.
(d) Review of Administrative Actions.--Any person against
whom an administrative action has been taken under this
section may obtain review thereof in the U.S. District Court
for the District of Columbia by filing a complaint in such
court within 30 days from the date of such order and by
simultaneously sending a copy of such complaint, by certified
mail to the implementing agency, the Attorney General and the
appropriate United States Attorney. The implementing agency
shall promptly file in such court a certified copy of the
record upon which the violation was found or such penalty
imposed, as provided in section 2112 of Title 28. Such court
shall not set aside or remand such order unless there is not
substantial evidence in the record, taken, as a whole, to
support the finding of a violation or unless the implementing
agency's assessment of the penalty constitutes an abuse of
discretion. In any such proceeding, the United States may
seek to recover the civil penalty assessed under this
section.
(e) Action Upon Failure To Pay Assessment.--If any person
fails to pay an assessment of a civil penalty after it has
become a final and unappealable order, or after the court has
entered final judgment in favor of the implementing agency,
the implementing agency shall request the Attorney General of
the United States to bring a civil action to recover the
amount assessed in any appropriate district court of the
United States. In such action, the validity and
appropriateness of the final order imposing the civil penalty
shall not be subject to review.
(f) In Rem Jurisdiction.--Any vessel, vehicle or aircraft
(including its gear, furniture, appurtenances, stores, and
cargo) used in the commission of an act prohibited by section
4 shall be liable in rem for any civil penalty assessed for
such violation under this section and may be proceeded
against in any district court of the United States having
jurisdiction thereof. Such penalty shall constitute a
maritime lien on such vessel which may be recovered in an
action in rem in the district court of the United States
having jurisdiction over the vessel.
Sec. 16. CIVIL JUDICIAL ENFORCEMENT.
(a) Civil Judicial Enforcement.--Whenever, on the basis of
any information, the implementing agency determines that a
person has violated or is in violation of any requirement of
this Act or any permit issued or regulation promulgated under
this Act, such agency may request the Attorney General to
commence a civil action in either the U.S. District Court of
the District of Columbia, or for any district in which such
person is found, resides, or transacts business, for
appropriate relief, including a temporary or permanent
injunction or to assess and recover a civil penalty not to
exceed 50,000 dollars per day for each past or ongoing
violation, or both. Each day of continuing violation shall
constitute a separate offense.
(b) Factors Considered in Determining Amount.--In
determining the amount of such penalty, the court shall take
into account the nature, circumstances, extent, and gravity
of the prohibited act committed, and, with respect to the
violator, the degree of culpability, and history of prior
offenses, any economic benefit derived from the violation,
and such other matters as justice may require.
(c) Imminent Hazard.--Notwithstanding any other provision
of this Act, upon receipt of evidence that a person's past or
present activities may present an imminent and substantial
endangerment to human health or the environment in
Antarctica, the Director, in consultation with the
Administrator, may request the Attorney General to bring suit
on behalf of the United States in either the U.S. District
Court for the District of Columbia, or for any district in
which such person is found, resides, or transacts business,
against any person who has contributed to or who is
contributing to such activities to restrain such person from
such activities, to order such person to take other action as
may be necessary, or both. The Director, in consultation with
the Administrator, may also take other action under this
section, including but not limited to issuing such orders as
may be necessary to protect human health or the environment
in Antarctica, and undertaking corrective action and
recovering costs of such action.
SEC. 17. CRIMINAL OFFENSES.
(a) Offenses.--Any person who knowingly commits any act
prohibited by section 4 shall, upon conviction, be punished
by a fine of not more than $50,000 per day of the violation,
or by imprisonment for not more than five years, or by both;
except that if in the commission of any such offense the
person uses a dangerous weapon, engages in conduct that
causes bodily injury to any officer or employee of the United
States carrying out the powers specified in section 19(b)(1),
or places any such officer or employee in fear of imminent
bodily injury, the maximum fine shall be as provided in Title
18 and the maximum imprisonment shall be as provided in Title
18 and the maximum imprisonment shall be ten years. Each day
of a continuing violation shall constitute a separate
offense. If a conviction of a person is for a violation
committed after a first conviction of such person under this
paragraph, the maximum punishment shall be doubled with
respect to both fine and imprisonment.
(b) Federal Jurisdiction.--There is federal jurisdiction
over any offense described in subsection (a) of this section.
(c) Other Criminal Offenses.--Nothing in this Act shall be
construed to limit the jurisdiction of the United States over
other criminal offenses which may occur in Antarctica.
SEC. 18. CIVIL FORFEITURE.
(a) In General.--Any vessel, vehicle or aircraft (including
its gear, furniture, appurtenances, stores and cargo), and
any guns, traps, and other equipment used, and any animal,
plant, Antarctic mineral resource (or the fair market value
thereof), or other property recovered, taken, or possessed,
in any manner, including any proceeds thereof, in connection
with or as a result of the commission of any act prohibited
by section 4 shall be subject to forfeiture to the United
States. All or part of such vessel, vehicle or aircraft may,
and all of any such animal, plant, or Antarctic mineral
resource (or fair market value thereof), shall be forfeited
to the United States pursuant to a civil proceeding under
this section.
(b) Jurisdiction of District Courts.--Any district court of
the United States shall have jurisdiction, upon application
by the Attorney General on behalf of the United States, to
order any forfeiture authorized under subsection (a) of this
section and any action provided for under subsection (d) of
this section.
(c) Judgment.--If a judgment is entered for the United
States in a civil forfeiture proceeding under this section,
the Attorney General may seize any property or other interest
declared forfeited to the United States, which has not
previously been seized under this Act or for which security
has not previously been obtained under subsection (d) of this
section. The provisions of the customs laws relating to--
(1) the seizure, forfeiture, and condemnation of property
for violation of the customs law;
(2) the disposition of such property or the proceeds from
the sale thereof; and
(3) the remission or mitigation of any such forfeiture;
shall apply to seizures and forfeitures incurred, or alleged
to have been incurred, under the provisions of this Act,
unless such customs law provisions are inconsistent with the
purposes, policy, and provisions of this Act, except that all
powers, rights, and duties conferred or imposed by the
customs laws upon any officer or employee of the Customs
Services shall, for the purposes of this Act, be exercised or
performed by the implementing agency.
(d) Procedure.--(1) Any officer authorized to serve any
process in rem which is issued by a court under this Act
shall--
(A) stay the execution of such process; or
(B) discharge any property seized pursuant to such process;
upon the receipt of a satisfactory bond or other security
from any person claiming such property. Such bond or other
security shall be conditioned upon such person (i) delivering
such property to the appropriate court upon order thereof,
without any impairment of its value, or (ii) paying the
monetary value of such property pursuant to an order of such
court. Judgment shall be recoverable on such bond or other
security against both the principal and any sureties in the
event that any condition thereof is breached, as determined
by such court. Nothing in this paragraph may be construed to
require the implementing agency, except in such agency's
discretion or pursuant to the order of a court, to release on
bond any seized property or the proceeds from the sale
thereof.
(2) Except as provided in subsection (e) of this section,
any property seized under this Act may be sold, subject to
regulations promulgated by the implementing agency, for not
less than the fair market value thereof. The proceeds of any
such sale shall be deposited with such court pending the
disposition of the matter involved.
(e) Disposal.--Notwithstanding any other provision of law,
upon the forfeiture to the United States of any property or
item described in subsection (a) of this section, or upon the
abandonment or waiver of any claim to any such property or
item, it shall be disposed of by the implementing agency in
such manner (including, but not limited to loan, sale, gift
or destruction), consistent with the purposes of the Act, as
may be prescribed by regulation; except that no native
mammal, native bird, or native plant may be disposed of by
sale to the public.
SEC. 19. POWERS OF AUTHORIZED ENFORCEMENT OFFICERS AND
EMPLOYEES.
(a) General Responsibility.--The provisions of the Act and
of any regulation promulgated or permit issued under this Act
shall be enforced by the authorized officers or employees
designated by the Director, the Secretary, the Administrator,
the Secretary of the Treasury, the Secretary of the
department in which the Coast Guard is operating or the
Secretary of State. Each such agency may by agreement, on a
reimbursable basis or otherwise, utilize the personnel,
services, equipment (including aircraft and vessels) and
facilities of any other department or agency of the United
States in the performance of such duties.
(b) Specific Powers.--Any officer or employee of the United
States who is authorized (by an enforcing agency, or the head
of any department or agency of the United States which has
entered into an agreement with an enforcing agency under
subsection (a) of this section) to enforce the provisions of
this Act and of any regulation promulgated or permit issued
under this Act may--
(1) secure, execute, and serve any order, warrant,
subpoena, or other process, which is issued under the
authority of the United States or by any court of competent
jurisdiction;
(2) with or without a warrant or other process--
(A) search any person, place, vessel, vehicle, or aircraft
subject to the provisions of this Act where there are
reasonable grounds to believe that evidence of a violation of
this Act will be found;
(B) board, and search or inspect, any vessel, vehicle or
aircraft subject to the provisions of this Act;
(C) seize any evidence relating to a violation of this Act;
(D) seize any animal, plant, Antarctic mineral resource,
prohibited product or prohibited waste, wherever such item
may be found, which is or has been recovered, taken or
possessed in violation of this Act;
(E) seize any vessel, vehicle or aircraft subject to the
provisions of this Act (including its gear, furniture,
appurtenances, stores and cargo), or any guns, traps or other
equipment used in, or that reasonably appears to have been
used in, a violation of this Act;
(F) detain for inspection and inspect any package, crate,
or other container, including its contents, and all
accompanying documents, upon importation into or exportation
from, the United States; and
(G) arrest any person, if he or she has reasonable cause to
believe that such person has committed an act prohibited by
section 4;
(2) offer and pay a reward to any person who furnishes
information which leads to an arrest, conviction, civil
penalty assessment, permit sanction, compliance order,
injunction, or forfeiture of property for any violation of
any provision of this Act;
(3) make inquiries, and administer to, or take from, any
person an oath, affirmation or affidavit, concerning any
matter which is related to the enforcement of such
provisions; and
(4) exercise any other authority which such officer or
employee is permitted by law to exercise.
SEC. 20. MISCELLANEOUS ENFORCEMENT PROVISIONS.
(a) Regulations.--Each agency that has responsibility for
implementing and enforcing this Act may promulgate such
regulations as may be appropriate to enforce the provisions
of this Act and of any regulations promulgated or permits
issued under this Act, and charge reasonable fees for the
expenses of the United States incurred in carrying out
inspections and in transferring, boarding, handling, or
storing animals, plants, Antarctic mineral resources and any
other property seized or forfeited under this Act.
(b) Burden of Proof.--In connection with any action
alleging a violation of this Act, or implementing
regulations, any person claiming the benefit of any exemption
or permit shall have the burden of proving that the exemption
applies or that the permit is applicable, has been granted,
was valid and was in force at the time of the alleged
violation.
(c) Statute of Limitations.--The statute of limitations for
initiating an administrative or judicial enforcement
proceeding shall begin to run at the time a violation is
discovered by any of the authorities listed in section 19 and
shall run for a period of five years.
(d) Action Against Permit.--If any person fails to pay a
civil penalty or criminal fine, the implementing agency may
suspend or deny any permit issued to or applied for by such
person. The implementing agency shall reinstate such permit
or permit application upon payment of the penalty or fine and
interest thereon at the prevailing rate.
(e) payment of Storage and Other Costs.--Notwithstanding
any other provision of law, the implementing agency may
retain sums it receives as fines, penalties, and forfeitures
of property for violations of any provisions of this Act, and
shall pay from such sums--
(1) the reasonable and necessary costs it incurs in
connection with the seizure and forfeiture of property under
this Act, including in providing temporary storage, care, and
maintenance of such property pending disposition of any civil
or criminal proceeding alleging a violation of any provision
of this Act;
(2) to a qualifying person any reward offered under section
19;
(3) any expenses directly related to investigations and
civil and criminal enforcement proceedings, including any
necessary expenses for equipment, training, travel,
witnesses, and contracting services directly related to such
investigations or proceedings;
(4) any valid liens or mortgages against any property that
has been forfeited;
(5) claims of parties in interest to property disposed of
under section 612(b) of the Tariff Act of 1930 (19 U.S.C.
1612(b)) or under other provision of the customs laws, as
made applicable by this Act to seizures under this Act, in
amounts determined by the implementing agency to be
applicable to such claims at the time of seizure; and
(6) reimbursement to any agency for services performed, or
personnel, equipment, or facilities utilized, under any
agreement entered into under section 19, or any similar
agreement authorized by law.
(f) Proceedings Under Other Laws.--Legal proceedings
brought under any section of this Act with respect to any act
shall not be deemed to preclude proceedings with respect to
such act under any other provision of this Act or any other
law.
(g) Information Gathering Authority.--For the purposes of
enforcing the provisions of this Act, or any permit issued or
regulation promulgated under this Act--
(1) the implementing agency may require any person who has
undertaken activities in Antarctica to--
(A) furnish information relating to his or her activities
in Antarctica; or
(B) sample any wastes, emissions, discharges, or releases;
and
(2) the implementing agency or its authorized
representative may at reasonable times have access to and
copy any records relating to activities in Antarctica, and
sample any wastes, emissions, discharges, or releases that
such person is required to sample under paragraph (1) of this
subsection.
SEC. 21. JUDICIAL ACTIONS.
A district court of the United States which has
jurisdiction over any case or controversy arising under the
provisions of this Act may, at any time--
(a) enter restraining orders or prohibitions;
(b) issue warrants, process in rem, or other process;
(c) prescribe and accept satisfactory bonds or other
security; and
(d) take such other actions as are in the interest of
justice.
SEC. 22. FEDERAL AGENCY COOPERATION.
(a) Each federal department or agency whose activities
affect Antarctica shall utilize, to the maximum extent
practicable, its authorities in furtherance of the purposes
of this Act, and shall cooperate with the Director in
carrying out the purposes of this Act.
(b) The Director shall consult with the Administrator with
respect to enforcement of regulations promulgated under
section 6(e), and with respect to determining compliance with
the terms and conditions of permits issued under section
5(g)(2).
SEC. 23. RELATIONSHIP TO EXISTING INTERNATIONAL AGREEMENTS,
STATUTES, REGULATIONS, AND PERMITS.
(a) In General.--Nothing in this Act shall be construed as
contravening or superseding the provisions of any treaty or
other international agreement, if such treaty or agreement is
in force with respect to the United States on the date of
enactment of this Act, or the provisions of any statute
except as provided in subsections (b) and (c) of this
section.
(b) Statute.--For purposes of any Antarctic mineral
resource, the provisions of this Act prevail over any
inconsistent provision of the Deep Seabed Hard Mineral
Resources Act (30 USC 1401-1471).
(c) Repeal of Statutes.--The Antarctic Conservation Act of
1978 (16 USC 2401 et seq.) and the Antarctic Protection Act
of 1990 (16 USC 2461 et seq.) are hereby repealed.
(d) Savings Provisions.--
(1) All regulations promulgated under the Antarctic
Conservation Act of 1978 (16 USC 2401 et seq.) shall remain
in effect until the Director, the Secretary, the
Administrator, the Secretary of the Department in which the
Coast Guard is operating, or the Secretary of State, as the
case may be, promulgates superseding regulations under
sections 6, 7, or 8.
(2) All permits issued under the Antarctic Conservation Act
of 1978 (16 USC 2401 et seq.) shall remain in effect until
they expire in accordance with the terms of those permits.
SEC. 24. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary for each of fiscal years 1994 and 1995 to carry out
this Act.
____
U.S. Department of State,
Washington, DC, November 15, 1993.
Hon. Al Gore,
President of the Senate.
Dear Mr. President: I have the honor to transmit for the
consideration of the Congress a draft bill, entitled the
Antarctic Environmental Protection Act of 1993, implementing
the Protocol on Environmental Protection to the Antarctic
Treaty, and four annexes thereto, done at Madrid on October
4, 1991, and an additional annex done at Bonn on October 17,
1991. The Protocol, with all five annexes, received the
advice and consent to ratification of the Senate on October
7, 1992.
The draft bill repeals the Antarctic Conservation Act of
1978 (16 U.S.C. Sec. 2401 et seq.) and replaces it with
legislation which enacts measures to implement the provisions
of the Protocol and annexes. It also repeals the Antarctic
Protection Act of 1990 (16 U.S.C. Sec. 2461 et seq.) and
creates a new prohibition on mineral resource activities in
Antarctica consistent with the Protocol.
The Omnibus Budget Reconciliation Act (OBRA) requires that
all revenue and direct spending legislation meet a pay-as-
you-go requirement. That is, no such bill should result in an
increase in the deficit; and if it does, it will trigger a
sequester if not fully offset. Collections and fines in this
bill would recover any pay-as-you-go costs, resulting in a
net zero pay-as-you-go effect.
We are advised by the Office of Management and Budget that
there is no objection to our submission of this legislative
proposal to the Congress, and that its enactment would be in
accord with the President's program.
Please do not hesitate to contact me if we can be of
further assistance.
Sincerely,
Wendy R. Sherman,
Assistant Secretary,
Legislative Affairs.
____
Statement of Purpose and Need
The attached draft bill, called the Antarctic Environmental
Protection Act of 1993, contains proposed legislation to
implement the Protocol on Environmental Protection to the
Antarctic Treaty.
the protocol
The Antarctic Treaty Consultative Parties adopted and
opened for signature the Protocol on Environmental Protection
to the Antarctic Treaty, including four annexes, on October
4, 1991, in Madrid.
All 26 Consultative Parties, including the United States,
have signed the Protocol. The Consultative Parties adopted an
additional annex to the Protocol at Bonn on October 17, 1991.
The Senate gave its advice and consent to ratification of the
Protocol, including the annexes, on October 7, 1992.
The Protocol builds upon the Antarctic Treaty to extend and
improve the Treaty's effectiveness as a mechanism for
ensuring the protection of the Antarctic environment. The
Protocol is intended to replace existing recommendations
under the Treaty addressing the protection of the Antarctic
environment, including the Agreed Measures for the
Conservation of Antarctic Fauna and Flora. It does not affect
other agreements on the Antarctic to which the United States
is a party, such as the Convention on the Conservation of
Antarctic Marine Living Resources and the Convention on the
Conservation of Antarctic Seals.
The Protocol designates Antarctic as a natural reserve,
devoted to peace and science. It prohibits mineral resource
activities, other than scientific research, in Antarctica.
Its annexes, which form an integral part of the Protocol, set
out specific rules on environmental impact assessment,
conservation of Antarctic fauna and flora, waste disposal and
management, the prevention of marine pollution, and area
protection and management. The Protocol establishes a
Committee for Environmental Protection to provide advice and
recommendations to the Antarctic Treaty Consultative Meetings
on the implementation of the Protocol, and includes
provisions on settlement of disputes.
the draft legislation
The draft legislation is called the Antarctic Environmental
Protection Act of 1993. The legislation would repeal the
Antarctic Conservation Act of 1978 (``ACA''), Pub. L. No. 95-
541 (16 U.S.C. Sec. Sec. 2401 et seq.) and the Antarctic
Protection Act of 1990 (``APA''), Pub. L. No. 101-594 (16
U.S.C. Sec. Sec. 2461 et seq,), and replace those Acts with
new provisions consistent with the Protocol.
The draft legislation would establish a more comprehensive
statutory scheme for the protection of the Antarctic
environment than the ACA and APA currently provide. Based
upon the Protocol, the legislation would prohibit certain
actions, such as Antarctic mineral resource activity,
introduction of specified products, and open burning of waste
after March 1, 1994. The legislation would allow other
actions, such as disposal of waste, entry into specially
protected areas, and taking of or harmful interference with
Antarctic flora and fauna, only with a permit.
The legislation would authorize the Director of the
National Science Foundation (``NSF Director''), the Secretary
of Commerce, the Administrator of the Environmental
Protection Agency (``EPA Administrator''), the Secretary of
State, and the Secretary of the Department in which the Coast
Guard operates to promulgate regulations to implement the
provisions of the Protocol. In particular, the legislation
would, inter alia, provide for:
The NSF Director to promulgate regulations on protection of
flora and fauna, and of specially protected areas;
The NSF Director, with the concurrence of the EPA
Administrator, to promulgate regulations on waste disposal
and management;
The Secretary of Commerce to promulgate regulations on
Antarctic mineral resource activity;
The Secretary of State to promulgate regulations on the
filing of advance notice of expeditions to and within
Antarctica; and
The Secretary of the Department in which the Coast Guard is
operating to promulgate regulations on marine pollution.
The legislation would implement the provisions of the
Protocol on environmental impact assessment, which are
consistent with the National Environmental Policy Act of
1969. The legislation would amend the Act to Prevent
Pollution from Ships, 33 U.S.C. Sec. 1901 et seq., to
implement the Protocol's provisions on marine pollution
contained in Annex IV.
The legislation would provide for oversight of the United
States Antarctic Program through on-site inspections and
reports by governmental and non-governmental experts, with
a view to examining the overall compliance of the Program
with the legislation and the Protocol. The legislation
would provide that the Department of State would
coordinate an interagency study to determine whether
additional measures should be taken with respect to
tourism in Antarctica.
The legislation would provide for effective civil and
criminal enforcement, including through administrative
compliance orders, assessment of penalties, civil judicial
enforcement, and criminal proceedings.
____
Section-by-Section Analysis
section 1. short title
The short title of the proposed legislation is the
``Antarctica Environmental Protection Act of 1993.''
section 2. findings, purpose, and policy
The legislation would find, in conformity with Article 2 of
the Protocol, that Antarctica is a natural reserve, devoted
to peace and science.
The purpose of the bill is to provide legislative authority
to implement the Protocol.
The legislation would incorporate the environmental
principles of Article 3 of the Protocol as a statement of
U.S. national policy.
section 3. definitions
The bill draws on the Definitions section of the ACA, but
changes some definitions and adds others to conform with the
Protocol.
The definition of ``person'' follows the example of the
Antarctic Marine Living Resources Convention Act of 1984
(``AMLR''). The legislation would apply to any natural or
corporate person subject to the jurisdiction of the United
States, including federal, state or local government
entities. The legislation would not change or affect the
provisions of the Foreign Sovereign Immunities Act of 1976,
Pub. L. 94-583, 90 Stat. 2891.
Section 4. Prohibited Acts
Section 4(a) of the bill lists prohibited actions; section
4(b) lists actions that would be prohibited unless carried
out with a permit.
Section 4(a)(1) would make it unlawful for any person to
engage in, provide assistance to, or knowingly finance any
Antarctic mineral resource activity. This provision reflects
article 7 of the Protocol, which states: ``Any activity
relating to mineral resources, other than scientific
research, shall be prohibited.'' This legislation would
repeal the APA, which was intended as an interim measure
pending entry into force of an international agreement
providing an indefinite ban on Antarctic mineral resource
activities. Article 7, which has no termination date and is
not reviewable for fifty years following entry into force of
the Protocol, constitutes such an indefinite ban.
The legislation would prohibit several activities
concerning waste in Antarctica. It would be unlawful to:
introduce certain specified products; to dispose of certain
types of waste, except through removal; to engage in open
burning of waste after March 1, 1994; and to dispose of any
waste onto ice-free land areas or into fresh water systems.
In addition, section 4 (b) of the legislation would prohibit
disposal of any waste in Antarctica without a permit, except
as otherwise authorized under the Act to Prevent Pollution
from Ships. All of these prohibitions are based on provisions
of Annex III of the Protocol.
Section 4(b) of the legislation would prohibit any person
from introducing into Antarctica any member of a non-native
species and from engaging in any taking or harmful
interference in Antarctica without a permit, in conformity
with Annex II of the Protocol.
Section 4(b) would also prohibit entering specially
protected areas without a permit, in conformity with Annex V
of the Protocol.
section 5. permits
The legislation would set out terms and conditions on the
issuance of permits by the NSF Director for activities
otherwise prohibited under section 4(b). The legislation
would require the Director to consult with the EPA
Administrator before issuing a permit to dispose of waste,
and to receive the concurrence of the Secretary of Commerce
before issuing a permit for a taking or harmful interference
in connection with the construction or operation of
scientific support facilities.
The bill provides that the Director may modify, suspend or
revoke any permit where there is a change in conditions that
makes the permit inconsistent with the provisions of the
legislation or the Protocol.
section 6. regulations
The legislation would authorize the NSF Director, the
Secretary of Commerce, the EPA Administrator, the Secretary
of State, and the Secretary of the Department in which the
Coast Guard operates to promulgate regulations to implement
the provisions of the Protocol. In particular, the
legislation would provide for:
The NSF Director to promulgate regulations on protection of
flora and fauna, and of specially protected areas, in
accordance with specific requirements drawn from Annex II of
the Protocol;
The NSF Director, with the concurrence of the EPA
Administrator, to promulgate regulations on waste disposal
and management, in accordance with specific requirements
drawn from Annex III of the Protocol;
The Secretary of Commerce to promulgate regulations on
Antarctic mineral resource activity;
The Secretary of State to promulgate regulations on the
filing of advance notice of expeditions to and within
Antarctica; and
The Secretary of the Department in which the Coast Guard is
operating to promulgate regulations on marine pollution.
The legislation would also provide authority to promulgate
additional regulations to implement the Protocol, including
regulations to address a situation not covered by the annexes
to the Protocol or in which a more rigorous or supplemental
requirement is necessary.
section 7. environmental impact assessment
The legislation would implement the provisions of the
Protocol on environmental impact assessment of federal agency
activities in Antarctica by applying the National
Environmental Policy Act of 1969 to the activities, as
specified in the legislation.
The Protocol requires environmental impact assessment of
non-governmental activities, as well as governmental
activities, in Antarctica. The legislation would authorize
the EPA Administrator to promulgate regulations to provide
for the environmental impact assessment of non-governmental
activities, including tourism, consistent with the provisions
of Annex I of the Protocol.
section 8. monitoring
The legislation would authorize the NSF Director, in
consultation with the EPA Administrator, to promulgate
regulations to provide for procedures to assess and verify
the environmental impact of activities that proceed following
a determination that they will have more than a minor or
transitory impact on the Antarctic environment or dependent
and associated ecosystems.
section 9. marine pollution
The legislation would amend the Act to Prevent Pollution
from Ships, to implement the Protocol's provisions on marine
pollution contained in Annex IV.
section 10. representation
The legislation would provide that the Secretary of State,
with the concurrence of appropriate agency officials, would
appoint the U.S. representative to the Committee for
Environmental Protection created under the Protocol.
section 11. oversight
The legislation would provide that the Secretary of State,
in conjunction with the EPA Administration and the Secretary
of Commerce, will inspect the U.S. Antarctic Program at
appropriate intervals of between two and five years. The
inspection team will conduct on-site inspections of stations,
field camps, and operations, and review any other relevant
information, with a view to examining the overall compliance
of the U.S. Antarctic Program with the legislation and the
Protocol.
The inspection team will prepare a report which documents
its findings, specifies any examples of failures of
compliance, and makes recommendations. The report, along with
any comments by the NSF Director on it, will be made public.
section 12. study of antarctic tourism
The legislation would provide that the Department of State
will coordinate an interagency study to determine whether
additional measures should be taken with respect to tourism
in Antarctica. The legislation would provide that the study
would be completed within 24 months of the date of enactment
of the legislation.
section 13. rule making and petition
The legislation would provide that any person may petition
for the promulgation, amendment, or repeal of any regulation.
Within 180 days of receipt of the petition, the agency
responsible for implementing the legislation shall grant or
deny the petition.
section 14. judicial review and citizens' suits
The legislation would provide for judicial review of final
regulations, the denial of petitions under section 13, and
final agency action on any permit. It would also provide for
citizens' suits, to help to ensure effective implementation
of the provisions of the Act.
section 15. administrative enforcement
The legislation would provide that when an agency
implementing the legislation determines that any person is in
violation of any requirement of the Act, or any regulation or
permit under it, the agency may issue an order requiring
compliance. Any person who commits an act prohibited by the
legislation would be liable for a civil penalty up to 50,000
dollars for each day of the violation.
section 16. civil judicial enforcement
An agency which determines that a person has violated any
requirement of the Act, or any regulation or permit under it,
could request the Attorney General to commence a civil action
to assess and recover a civil penalty against the person, up
to 50,000 dollars for each day of the violation.
In addition, the legislation would authorize the Director
to request the Attorney General to bring suit against any
person whose past or present activities may present an
imminent and substantial endangerment to human health or the
environment in Antarctica, to restrain the person from the
activities, or to order the person to take other action as
may be necessary.
section 17. criminal offenses
The legislation would provide that a person is guilty of a
criminal offense if he or she knowingly commits any act
prohibited by section 4 of the legislation. The offense would
be punishable by imprisonment for not more than five years,
or a fine, or both.
section 18. civil forfeiture
The legislation would provide that any vessel, vehicle or
aircraft used in connection with any act prohibited by
section 4 would be subject to forfeiture by the United
States.
Section 19. Powers of Authorized Enforcement Officers
The legislation would provide that its provisions would be
enforced by authorized officers of designated agencies,
including the National Science Foundation, the Environmental
Protection Agency, the Secretary of Commerce, and the Coast
Guard, and would provide the officers specific enforcement
authority (such as conducting searches and seizures and
making arrest).
Section 20. Miscellaneous Enforcement Provisions
This provision would make clear that agencies with
responsibility for implementing and enforcing the legislation
may promulgate appropriate regulations to that end. The
legislation would provide that the statute of limitations for
initiating an administrative or judicial enforcement
proceeding will be five years.
Section 21. Judicial Actions
This section would provide that courts with jurisdiction
over cases arising under the legislation may enter
restraining orders, issue warrants, prescribe and accept
bonds or other security, or take other actions in the
interest of justice.
Section 22. Federal Agency Cooperation
This section, which is identical to language in the ACA,
would provide that every federal department or agency whose
activities affect Antarctica will use its authorities in
furtherance of the purposes of the legislation, and will
cooperate with the NSF Director in carrying out those
purposes.
Section 23. Relationship to Existing International Agreements and
Statutes
The bill provides that the legislation shall not be
construed to contravene or supersede the provisions of any
treaty or other international agreement in force with respect
to the United States on the date of enactment of the Act. It
also provides that the legislation does not contravene or
supersede any statute, with the exception of those
specifically listed in this section.
Section 23(b) is intended to assure that the Deep Seabed
Hard Mineral Resources Act, 30 U.S.C. Sec. Sec. 1401-1471, is
not construed to authorize prospecting or the issuance of
authorizations to engage in deep seabed mining in Antarctica.
Section 23(c) would repeal the APA (which will expire upon
entry into force of the Protocol for the United States) and
the ACA, both of which would be superseded by this
legislation.
Section 24. Authorization of Appropriations
The legislation would authorize such sums as may be
necessary and appropriate for the fiscal year 1994 and 1995
to carry out the legislation.
______
By Mr. BAUCUS (for himself and Mr. Lautenberg) (by request):
S. 1834. A bill to amend the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, and for other purposes; to the
Committee on Environment and Public Works, pursuant to the order of
February 7, 1994, for consideration only of matters within that
committee's jurisdiction, provided that if and when reported from
committee, the bill be referred to the Committee on Finance for
consideration only of matters within that committee's jurisdiction for
a period not to exceed 30 session days.
superfund reform act of 1994
Mr. BAUCUS. Mr. President, I rise, along with Senator Lautenberg, to
introduce upon the request of the administration, legislation to reform
and reauthorize our Nation's Superfund law. President Clinton,
Administrator Browner, Secretary Bentsen, and many others in the
administration deserve credit for their leadership in proposing much
needed reforms to Superfund.
This bill represents a year long effort to study Superfund, pinpoint
the problems, and evaluate alternatives for reforming the program.
Administrator Browner began the process early last year when she
commissioned an advisory group of public and private representatives
called the NACEPT group. This group took an honest look at Superfund
and made recommendations on how to improve the program.
Also last year the Keystone group, an independent and diverse group
of leaders from government, industry, environmental, and civil rights
organizations began examining Superfund. In late December, they
completed their work, reaching consensus on a proposal that would
substantially reform Superfund.
This bill builds on the work and recommendations of NACEPT and the
Keystone groups. It recognizes the problems with the existing law and
proposes fundamental solutions. It proposes changes to lower litigation
costs, achieve more rational and quicker cleanups, ensure that
polluters pay their fair share, and strengthen the role of the States
and enhance community involvement. It represents an excellent start for
congressional action.
fair share liability
One of the most troubling parts of Superfund is its unfair and highly
litigious liability system. In 1980, when we passed Superfund we had
hoped to quickly and cost-effectively clean up our Nation's most toxic
dumps. To accomplish this task, we gave the Environmental Protection
Agency broad legal authority to order any polluter at a site to pay for
the entire cost of cleaning up that site.
As it now stands, the EPA typically orders the larger polluters to
clean up a site. They in turn sue smaller polluters, and their
insurance companies, to recover some of the costs. In the end, the
courts determine everyone's share.
This liability system has become a cash cow for lawyers and has
forced EPA and industry to spend more time and money finding culprits
than cleaning up contaminated sites.
The President's bill recognizes these problems and proposes a new
system to more fairly allocate costs among polluters. Under the
proposal polluters could use an independent arbitrator to determine
their fair share. If they don't they would be subject to the full force
of the current liability system.
The bill also proposes an exemption from Superfund entirely for the
smallest polluters, the so called de micromis parties. It proposes an
expedited settlement process for small businesses, de minimis
polluters, and municipalities to get them out of the Superfund system
more quickly and more fairly by considering their ability to pay. And
it caps liability facing municipal waste generators and transporters.
Finally the bill proposes a new insurance settlement fund, financed
by insurers to substantially reduce the potential liability and
litigation now facing insurers and PRPs.
commonsense cleanups
Although these liability reforms should make Superfund more fair and
less litigious, at the heart of Superfund's problems are slow, costly,
unpredictable, ineffective, and often unnecessary cleanups and
reluctance on the part of polluters to cleanup sites on their own, or
try new technologies.
It takes 9 years to even begin cleaning up a site and decades to
finish the job at a cost of almost $30 million per site. We are
throwing this money down the drain if we try to return sites to
pristine conditions, when that's not technically feasible. Or if we
cleanup sites where risks are negligible. The problem is that Cadillac
remedies rob resources from sites where health threats are real and
they delay all cleanups.
The President's bill seeks to change this. It proposes to expedite
cleanups by focusing on the worst problems first rather than
concentrating on every problem, large and small, all at once.
It does this by proposing national standards that should provide
businesses with certainty and predictability. It gives polluters an
incentive to cleanup pollution voluntarily and use innovative
technology. It sets cleanup standards that are consistent with the type
of land use at the site. It eliminates the controversial reasonable and
appropriate requirements that have delayed cleanups. But it preserves
legally applicable State cleanup standards and provides a safety net to
ensure that highly contaminated areas, known as hot spots, are treated
if possible.
Enhanced State and Public Participation
Finally the bill proposes to significantly expand the role of the
public allowing citizens to participate in all parts of the Superfund
process where key decisions are made. And it proposes to let States
pick up and run the Superfund Program like they can under most other
environmental laws.
An Excellent Start
As I said at the outset, this proposal represents an excellent start
for congressional action. Last year, Senator Lautenberg began the
process for Senate action by holding 9 days of Superfund hearings. We
heard from dozens of experts. They told us about the problems with the
current program and offered suggestions for improvement.
I am pleased that the proposed reforms in the President's bill seems
to address many of the concerns raised during Senator Lautenberg's
hearings.
Next week, on February 10, Senator Lautenberg will continue the
reauthorization process by holding the first Senate hearing on the
administration's bill. And as we begin consideration of this bill, I
will pay especially close attention to four areas:
The nonbinding allocations system--that system must not simply
transfer today's liability disputes from the courts to independent
arbitrators. It must provide enough of an incentive so that PRP's will
want to participate. And it must ensure that money will be available to
pay for orphan shares if an independent arbitrator decides to allocate
some costs to the Fund.
The voluntary insurance settlement fund--it must be both affordable
enough to insurers who will pay into the fund, and large enough to
entice PRP's to participate in a voluntary settlement.
The State delegation process--it must minimize Federal Government
interference with States once they are authorized to run the Superfund
Program.
The cleanup goals and remedy section process--it must ensure that
remedies will be done quickly, responsibility, and are fully protective
of human health and the environment.
Let me stress one final, point. We have a full plate of issues before
us this year--the crime bill, health care, and welfare reform, as well
as clean water and safe drinking water reauthorizations before my
committee.
Given these competing priorities we must continue to work together to
broaden the consensus that we now have to fixing Superfund. In that
spirit, I will be working with the Administrator, my Senate and House
colleagues, and with others who are committed to Superfund reform. And
I urge everyone to work together so that we can reach consensus on
Superfund this Congress.
Mr. President, I ask unanimous consent that the text of the
administration's bill along with a summary be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1834
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS
(a) Short Title.--This act may be cited as the ``Superfund
Reform Act of 1994''.
(b) Table of Contents.--
Sec. 1. Short title; table of contents.
TITLE I--COMMUNITY PARTICIPATION AND HUMAN HEALTH
Sec. 101. Purposes and objectives.
Sec. 102. Early, direct and meaningful community participation.
Sec. 103. Community working groups.
Sec. 104. Citizen information and access offices.
Sec. 105. Response to comments.
Sec. 106. Multiple sources of risk demonstration projects.
Sec. 107. Assessing risks from multiple sources.
Sec. 108. Multiple sources of risk in priority setting.
Sec. 109. Disease registry and medical care providers.
Sec. 110. Substance profiles.
Sec. 111. Determining health effects.
Sec. 112. Public health and related health activities at National
Priorities List sites.
Sec. 113. Health studies.
Sec. 114. Distribution of materials to health professionals and medical
centers.
Sec. 115. Grant awards/contracts/community assistance activities.
Sec. 116. Public health recommendations in remedial actions.
Sec. 117. Agency for Toxic Substances and Disease Registry
notification.
TITLE II--STATES ROLES
Sec. 201. State authority.
Sec. 202. Transfer of authorities.
Sec. 203. State role in determination of remedial action taken.
Sec. 204. State assurances.
Sec. 205. Siting.
Sec. 206. The National Priorities List.
Sec. 207. The State Registry.
TITLE III--VOLUNTARY RESPONSE
Sec. 301. Purposes and objectives.
Sec. 302. State voluntary response program.
Sec. 303. Site characterization program.
TITLE IV--LIABILITY AND ALLOCATION
Sec. 401. Response authorities.
Sec. 402. Compliance with administrative orders.
Sec. 403. Limitations to liability for response costs.
Sec. 404. Liability.
Sec. 405. Civil proceedings.
Sec. 406. Limitations on contribution actions.
Sec. 407. Scope of rulemaking authority.
Sec. 408. Enhancement of settlement authorities.
Sec. 409. Allocation procedures.
TITLE V--REMEDY SELECTION
Sec. 501. Purposes and objectives.
Sec. 502. Cleanup standards and levels.
Sec. 503. Remedy selection.
Sec. 504. Miscellaneous amendments to section 121.
Sec. 505. Response authorities.
Sec. 506. Removal actions.
Sec. 507. Transition.
TITLE VI--MISCELLANEOUS
Sec. 601. Interagency agreements at mixed ownership and mixed
responsibilty facilities.
Sec. 602. Transfers of uncontaminated property.
Sec. 603. Agreements to transfer by deed.
Sec. 604. Alternative or innovative treatment technologies.
Sec. 605. Definitions.
Sec. 606. Conforming amendment.
TITLE VII--FUNDING
Sec. 701. Authorizations of appropriations.
Sec. 702. Orphan share funding.
Sec. 703. Agency for Toxic Substances and Disease Registry.
Sec. 704. Limitations on research, development and demonstration
programs.
Sec. 705. Authorization of appropriations from general revenues.
Sec. 706. Additional limitations.
TITLE VIII--INSURANCE
Sec. 801. Short title.
Sec. 802. Environmental Insurance Resolution Fund.
Sec. 803. Financial statements, audits, investigations, and
inspections.
Sec. 804. Stay of pending litigation.
Sec. 805. Sunset provisions.
Sec. 806. Sovereign immunity of the United States.
Sec. 807. Effective date.
TITLE IX--TAX
Sec. 901. Amendments to the Internal Revenue Code of 1986.
Sec. 902. Environmental fees and assessments on insurance companies.
Sec. 903. Funding provisions for Environmental Insurance Resolution
Fund.
Sec. 904. Resolution Fund not subject to tax.
TITLE I--COMMUNITY PARTICIPATION AND HUMAN HEALTH
SEC. 101. PURPOSES AND OBJECTIVES.
The purposes and objectives of the community participation
activities required by this title are to--
(a) inform citizens and elected officials at all levels of
government of the existence and status of facilities listed
on the National Priority List and contaminated sites
identified on State Registries (as established by section 207
of this Act);
(b) provide citizens with information regarding the
Superfund identification and cleanup process and maintain
lists of technical, health and other relevant experts
licensed or located in the state who are available to assist
the community;
(c) ensure wide dissemination of and access to information
in a manner that is easily understood by the community,
considering any unique cultural needs of the community,
including presentation of information orally and distribution
of information in languages other than English; and
(d) ensure that the President is aware of and considers the
views of affected communities.
SEC. 102. EARLY, DIRECT AND MEANINGFUL COMMUNITY
PARTICIPATION.
(a) Section 117(e)(1) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, referred
to in this Act as ``the Act'' (42 U.S.C. 9617) is amended by
amending the first sentence to read as follows--
``(1) Authority.--Subject to such amounts as are provided
in appropriations Acts and in accordance with rules
promulgated by the President, the President may make grants
or services available to any group of individuals which may
be affected by a release or threatened release of a hazardous
substance or pollutant, or contaminant at or from a facility
where there is significant response action under this Act
including, a site assessment, remedial investigation/
feasibility study, or other removal or remedial action.''.
(b) Section 117(e) of the Act is amended by striking
paragraph (2) and inserting in the following--
``(2) Amount.
``The amount of any grants or services may not exceed
$50,000 for a single recipient of grants or services. The
President may waive the $50,000 limitation in any case where
such waiver is necessary to carry out the purposes of this
subsection. Each recipient of grants or services shall be
required, as a condition of the grants or services, to
contribute at least 20 percent of the total costs of the
technical assistance for which such grants and services are
made. The President may waive the 20 percent contribution
requirement if the grants or services recipient demonstrates
financial need, and such waiver is necessary to facilitate
public participation in the selection of remedial action at
the facility. Not more than one award or grants or services
may be made with respect to a single facility, but the grants
or services may be renewed to facilitate public participation
at all stages of remedial action.''.
(c) Section 117 of the Act (42 U.S.C. 9617) is amended by
adding after subsection (e) the following new subsections--
``(f) Early, Direct and Meaningful Community Involvement.--
President shall provide for early, direct and meaningful
community involvement in each significant phase of response
activities taken under this Act. The President shall provide
the community with access to information necessary to develop
meaningful comments on critical decisions regarding facility
characterization, risks posed by the facility, and selection
of removal and remedial actions. The President shall consider
the views, preferences and recommendations of the affected
community regarding all aspects of the response activities,
including the acceptability to the community of achieving
background levels.
``(g) Information To Be Disseminated.--In addition to other
information the President considers appropriate, the
President shall ensure that the community is provided
information on the following--
``(1) the availability of a Technical Assistance Grant
(TAG) under subsection (e), directions on completing the TAG
application, and the details of the application process;
``(2) the possibility (where relevant) that members of a
community may qualify to receive an alternative water supply
or relocation assistance;
``(3) the Superfund process, and rights of private citizens
and public interest or community groups;
``(4) the potential for or existence of a Community Working
Group (CWG) established under subsection (i) (as added by the
Superfund Reform Act of 1994); and
``(5) an objective description of the facility's location
and characteristics, the contaminants present, the known
exposure pathways, and the steps being taken to assess the
risk presented by the facility.
``(h) Process for Involvement.--As early as practicable
after site discovery, the President shall provide regular,
direct, and meaningful community involvement in all phases of
the response activities at the facility, including--
``(1) Site assessment.--Whenever practicable, during the
site assessment, the President shall solicit and evaluate the
concerns and interests of the community likely affected by
the facility. The evaluation may consist of face-to-face
community surveys, a minimum of one public meeting, written
responses to significant concerns, and other appropriate
participatory activities.
``(2) Remedial investigation/feasibility study.--During the
remedial investigation and feasibility study, the President
shall solicit the views and preferences of the community on
the remediation and disposition of the hazardous substances,
pollutants or contaminants at the site. The community's views
and preferences shall be described in the remedial
investigation and feasibility study and considered in the
development of remedial alternatives for the facility.''.
SEC. 103. COMMUNITY WORKING GROUPS.
Section 117 of the Act (42 U.S.C. 9617) is amended by
adding after subsection (h) (as added by this Act) the
following new subsection--
``(i) Community Working Groups.--
``(1) Creation and responsibilities.--The President shall
provide the opportunity to establish a representative public
forum, known as a Community Working Group (CWG), to achieve
direct, regular and meaningful consultation with community
members throughout all stages of a response action. The
President shall consult with the CWG at each significant
phase of the remedial process.
``(2) Information clearinghouse.--The CWG shall serve as a
facility information clearinghouse for the community. In
addition to maintaining records of facility status and lists
of active citizen groups and available experts, the CWG shall
also be a repository for health assessment information and
other related health data.
``(3) Land use recommendations.--To establish land use
expectations more reliably, and obtain greater community
support for remedial decisions affecting future land use, the
President shall consult with the CWG on a regular basis
throughout the remedy selection process regarding reasonably
anticipated future use of land at the facility. The CWG may
offer recommendations to the President at any time during the
response activities at the facility on the reasonably
anticipated future use of land at the facility, taking into
account development possibilities and future waste management
needs. The President shall not be bound by any recommendation
of the CWG. However, when the CWG achieves substantial
agreement on the reasonably anticipated future use of the
land at the facility, the President shall give substantial
weight to that recommendation. In cases where there is
substantive disagreement within the CWG over a recommendation
regarding the reasonably anticipated future use of land at
the facility, the President shall seek to reconcile the
differences. In the event of continued substantive
disagreement, substantial weight shall be given to the views
of the residents of the affected community. Should the
President make a determination that is inconsistent with a
CWG recommendation on the reasonably anticipated future use
of land at the facility, the President shall issue a written
reason for the inconsistency.
``(4) Members.--CWG membership shall not exceed twenty
persons. CWG members shall serve without pay. Nominations for
CWG membership shall be solicited and accepted by the
President. Selection of CWG members shall be made by the
President. In selecting citizen participants for the CWG, the
President shall provide notice and an opportunity to
participate in CWGs to persons who potentially are
affected by facility contamination in the community.
Special efforts shall be made to ensure that the
composition of CWGs reflects a balanced representation of
all those interested in facility remediation. In general,
it shall be appropriate for the President to offer members
of the following groups representation on a CWG--
``(A) Residents and/or landowners who live on or have
property immediately adjacent to or near the facility, or who
may be directly affected by releases from the facility, with
a minimum of one representative of the recipient a grant for
technical assistance, if any, awarded under subsection (e);
``(B) Persons who, although not physically as close to the
facility as those in the group identified in subparagraph
(A), may be potentially affected by releases from the
facility;
``(C) Members of the local medical community who have
resided in the community for at least five years;
``(D) Representatives of Indian tribes;
``(E) Representatives of citizens, environmental or public
interest groups with members residing in the community;
``(F) Local government officials;
``(G) Workers at the facility who will be involved in
actual cleanup operations;
``(H) Persons at the facility during response actions;
``(I) Facility owners and the significant PRPs, who,
whenever practicable, represent a balance of interests; and,
``(J) Members of the local business community.
``(5) Other community views.--The existence of a CWG shall
not affect or diminish any other obligation of the President
to consider the views of any person in selecting response
actions under this Act.''.
SEC. 104. CITIZEN INFORMATION AND ACCESS OFFICES.
Section 117 of the Act (42 U.S.C. 9617) is amended by
adding after subsection (i) (as added by this Act) the
following new subsection--
``(j) Citizen Information and Access Offices.--
``(1) Creation and responsibilities.--The Administrator
shall ensure that an independent Citizen Information and
Access Office (CIAO) is established in each state and on each
tribal land affected by a National Priorities List facility.
``(2) Primary functions.--The primary functions of each
CIAO shall be to--
``(A) Inform citizens and elected officials at all levels
of government of the existence and status of National
Priorities List facilities in the state;
``(B) Provide citizens with information about each phase of
the Superfund process, including the site identification,
assessment and cleanup phases;
``(C) Ensure wide distribution of information that is
easily understood by citizens;
``(D) Serve as a state-wide, or tribal land-wide
clearinghouse of information; and
``(E) Assist in the Administrator's efforts to notify,
nominate, and select potential Community Working Group
members.''.
SEC. 105. RESPONSE TO COMMENTS.
Section 117(a) (42 U.S.C. 9617(a)) of the Act is amended by
striking ``both of'' from the phrase immediately preceding
paragraph (1) and by inserting after paragraph (2) the
following new paragraph--
``(3) Consider the recommendations of any Community Working
Group, community members and Technical Assistance Grant
recipients established for the facility pursuant to this
section. Provide, in writing a response to each significant
comment received during the public comment period. The
written response shall include an explanation of how the lead
agency has used or rejected significant comments of the
Community Working Group in its final decision.''.
SEC. 106. MULTIPLE SOURCES OF RISK DEMONSTRATION PROJECTS.
Section 117 of the Act (42 U.S.C. 9617) is amended by
adding after subsection (j) (as added by this Act) the
following new subsection--
``(k) Multiple Sources of Risk Demonstration Projects.--
``(1) In general.--The Administrator shall select at least
10 demonstration projects to be implemented over a five year
period, relating to the identification, assessment,
management of, and response to, multiple sources of risk in
and around designated facilities. These demonstration
projects will examine various approaches to protect
communities exposed to such multiple sources of risk. The
Administrator shall promulgate regulations that set forth the
criteria by which demonstration projects will be selected.
``(2) Additional health benefits.--In the course of
conducting these demonstration projects, if a distinct
pattern of adverse health effects is identified in the
surrounding community, the Administrator shall consider the
provision of additional health benefits to the affected
community, in an effort to improve community health and
welfare. Additional benefits may include services such as
consultations on health information and health screening, the
kind and availability of which will be set forth in
regulations promulgated by the Administrator. These benefits
shall not duplicate any activities already undertaken at
those facilities by the Agency for Toxic Substances and
Disease Registry under Section 104(i) of this Act.
``(3) Multiple sources of risk.--For the purposes of this
section, the term ``multiple sources of risk'' means--
``(A) health risks from the existence of and exposure to
hazardous substances in the vicinity of a facility for which
a response action under this Act is considered, which may
present risks to persons who are also at risk due to
conditions at such a facility; or
``(B) health risks from releases or threatened releases of
a hazardous substance, pollutant or contaminant from
facilities, permitted or otherwise, in the vicinity of a
facility for which a response action under this Act is being
considered, which may present risks to persons who are also
at risk due to the specific facility for which a response
action is being considered.
``(4) Consistency with designation of empowerment zones.--
The Administrator shall, to the maximum extent practicable,
select locations for conducting demonstration projects under
this subsection that coincide with areas which have been
identified as empowerment zones under the Omnibus Budget
Reconciliation Act of 1994 (P.L. 103-66).
``(5) Right to petition.--Any person may petition the
Administrator to conduct a demonstration project under this
subsection at a specified location. Without regard to
paragraph (4), the Administrator may grant such a petition
if:
``(A) the petition sets out a reasonable basis in fact that
the population residing in the vicinity of the specified
location may be exposed to multiple sources of risk as
described in paragraph (3) and;
``(B) the petition otherwise meets the requirements of
regulations promulgated by the Administrator which set forth
the criteria by which demonstration projects will be
selected.
``(6) Reviews of petitions.--The Administrator's
determinations and reviews of petitions under this subsection
are committed to the Administrator's unreviewable discretion.
``(7) Interagency coordination.--The Administrator shall
coordinate with other departments or agencies as necessary in
carrying out the responsibilities of this subsection.''.
SEC. 107. ASSESSING RISKS FROM MULTIPLE SOURCES.
Section 105(a) of the Act (42 U.S.C. 9605(a)) is amended by
adding after paragraph (10) the following new paragraph--
``(11) standards and procedures for assessing the risks,
and the cumulative impact of such risks, posed by the release
or threatened release of hazardous substances, or pollutants,
or contaminants from multiple sources of risk (as described
in section 117(l)(3) of this Act) in and around a facility,
for utilization in response actions authorized by this Act.
The demonstration projects authorized under subsection 117(l)
of this Act shall be used to help meet the requirements of
this subsection.''.
SEC. 108. MULTIPLE SOURCES OF RISK IN PRIORITY SETTING.
Section 105(a)(8)(A) of the Act (42 U.S.C. 9605(a)(8)(A))
is amended by adding in the last sentence before ``and other
appropriate factors'' the following: ``the presence of
multiple sources of risk (described in section 117(l)(3) of
this Act) to affected communities,''.
SEC. 109. DISEASE REGISTRY AND MEDICAL CARE PROVIDERS.
Section 104(i)(1) of the Act (42 U.S.C. 9604(i)(1)) is
amended--
(a) by amending subparagraph (A) to read as follows--
``(A) in cooperation with the States, for scientific
purposes and public health purposes, establish and maintain a
national registry of persons exposed to toxic substances;'';
and
(b) by amending subparagraph (E) by striking ``admissions
to hospitals and other facilities and services operated or
provided by the Public Health Service'' and by inserting:
``referral to accredited medical care providers''.
SEC. 110. SUBSTANCE PROFILES.
Section 104(i)(3) of the Act (42 U.S.C. 9604(i)(3)) is
amended by amending the paragraph beginning ``Any
toxicological profile or revision thereof'' to read as
follows--
``Any toxicological profile or revision thereof shall
reflect the Administrator of ATSDR's assessment of all
relevant toxicological testing which has been peer reviewed.
The profiles prepared under this paragraph shall be for those
substances highest on the list of priorities under paragraph
(2) for which profiles have not previously been prepared or
for substances not on the listing but which have been found
at non-National Priorities List facilities and which have
been determined by ATSDR to be of critical health concern.
Profiles required under this paragraph shall be revised and
republished as necessary, based on scientific need. Such
profiles shall be provided to the States and made available
to other interested parties.''.
SEC. 111. DETERMINING HEALTH EFFECTS.
Section 104(i)(5) of the Act (42 U.S.C. 9604(i)(5)) is
amended--
(a) in subparagraph (A) by--
(1) striking ``designed to determine the health effects
(and techniques for development of methods to determine such
health effects) for such substance'' and inserting
``conducted directly or by means such as cooperative
agreements and grants with appropriate public and nonprofit
institutions. The research shall be designed to determine the
health effects (and techniques for development of methods to
determine such health effects) of the substance''; and
(2) redesignating clause (iv) as ``(v)'', striking ``and''
after clause (iii), and by inserting new clause (iv) to read
as follows--
``(iv) laboratory and other studies which can lead to the
development of innovative techniques for predicting organ-
specific, site-specific, and system-specific acute and
chronic toxicity; and''; and
(b) striking subparagraph (D).
SEC. 112. PUBLIC HEALTH AND RELATED HEALTH ACTIVITIES AT NPL
FACILITIES.
Section 104(i)(6) of the Act (42 U.S.C. 9604(i)(6)) is
amended by--
(a) amending subparagraph (A) to read as follows--
``(A) The Administrator of ATSDR shall perform a public
health assessment or related health activity for each
facility on the National Priorities List established under
section 105 of this Act. The public health assessment or
related health activity shall be completed for each facility
proposed for inclusion on the National Priorities List not
later than one year after the date of proposal for inclusion,
including those facilities owned by any department, agency,
or instrumentality of the United States. ``; and
(b) in subparagraph (H), striking ``health assessment'' and
``such assessment'' each place that they appear and inserting
``public health assessment or related health activity''.
SAC. 113. HEALTH STUDIES.
Section 104(i)(7)(A) of the Act (42 U.S.C. 9604(i)(7)(A))
is amended to read as follows--
``(A) Whenever in the judgment of the Administrator of
ATSDR it is appropriate on the basis of the results of a
public health assessment or on the basis of other appropriate
information, the Administrator of ATSDR shall conduct a human
health study of exposure or other health effects for selected
groups or individuals in order to determine the desirability
of conducting full scale epidemiologic or other health
studies of the entire exposed population.''.
SEC. 114. DISTRIBUTION OF MATERIALS TO HEALTH PROFESSIONALS
AND MEDICAL CENTERS.
Section 104(i)(14) of the Act (42 U.S.C. 9604(i)(14)) is
amended to read as follows--
``(14) In implementing this subsection and other health-
related provisions of this Act in cooperation with the
States, the Administrator of ATSDR shall--
``(A) assemble, develop as necessary, and distribute to the
States, medical colleges, physicians, nursing institutions,
nurses, and other health professionals and medical centers,
appropriate educational materials (including short courses)
on the medical surveillance, screening, and methods of
prevention, diagnosis and treatment of injury or disease
related to exposure to hazardous substances (giving priority
to those listed in paragraph (2)), through means the
Administrator of ATSDR considers appropriate; and
``(B) assemble, develop as necessary, and distribute to the
general public and to at-risk populations appropriate
educational materials and other information on human health
effects of hazardous substances.''.
SEC. 115. GRANT AWARDS/CONTRACTS/COMMUNITY ASSISTANCE
ACTIVITIES.
Section 104(i)(15) of the Act (42 U.S.C. 9604(i)(15)) is
amended by--
(a) inserting ``(A)'' before ``The activities'';
(b) striking ``cooperative agreements with States (or
political subdivisions thereof)'' and inserting: ``grants,
cooperative agreements, or contracts with States (or
political subdivisions thereof), other appropriate public
authorities, public or private institutions, colleges, and
universities, and professional associations,'';
(c) in the second sentence, inserting ``public'' before
``health assessments''; and
(d) adding a new subparagraph as follows--
``(B) When a public health assessment or related health
activity is conducted at a facility on, or a release being
evaluated for inclusion on the National Priorities List, the
Administrator of ATSDR may provide the assistance specified
in this paragraph to public or private non-profit entities,
individuals, and community-based groups who may be affected
by the release or threatened release of hazardous substances
in the environment.''.
SEC. 116. PUBLIC HEALTH RECOMMENDATIONS IN REMEDIAL ACTIONS.
Section 121(c) of the Act (42 U.S.C. 9621(c)) is amended by
inserting after the phrase ``remedial action'' the second
time it appears the following--
``, including public health recommendations and decisions
resulting from activities under section 104(i),''.
SEC. 117. ATSDR NOTIFICATION.
Section 122 of the Act (42 U.S.C. 9622) is amended by
inserting after subsection (m) the following new subsection--
``(n) Notification of ATSDR.--When the Agency for Toxic
Substances and Disease Registry (ATSDR) has conducted health
related response activities pursuant to section 104(i) in
response to a release or threatened release of any hazardous
substance that is the subject of negotiations under this
section, the President shall notify ATSDR of the negotiations
and shall encourage the participation of ATSDR in the
negotiations.''.
TITLE II--STATE ROLES
SEC. 201. STATE AUTHORITY.
(a) Title I of the Act (42 U.S.C. 9600 et.seq.) is amended
by adding after section 126 the following new section--
``SEC. 127. STATE AUTHORITY
``(a) State Program Authorization.--
``(1) In general.--At any time after the promulgation of
the criteria required by paragraph (3) of this subsection, a
State may apply to the Administrator to carry out, under its
own legal authorities, response actions and enforcement
activities at all facilities listed or proposed for listing
on the National Priorities List, or certain categories of
facilities listed or proposed for listing on the National
Priorities List, within the State. This section shall not
apply to any facility owned or operated by a department,
agency, or instrumentality of the United States listed on the
National Priorities List if, on the date of enactment of the
Superfund Reform Act of 1994, an interagency agreement for
such facility has been entered into pursuant to section
120(a)(2).
``(2) Requirements for authorization.--If the Administrator
determines that the State possesses the legal authority,
technical capability, and resources necessary to conduct
response actions and enforcement activities in a manner that
is substantially consistent with this Act and the National
Contingency Plan at the facilities listed or proposed for
listing on the National Priorities List for which it seeks
authorization, the Administrator, pursuant to a contract or
agreement entered into between the Administrator and the
State, may authorize the State to assume the responsibilities
established under this Act at all such facilities or
categories of facilities. Except as otherwise provided in
this Act, such responsibilities include, but are not limited
to, responding to a release or threatened release of a
hazardous substance or pollutant or contaminant; selecting
response actions; expending the Fund in amounts authorized by
the Administrator to finance response activities; and taking
enforcement actions, including cost recovery actions to
recover Fund expenditures made by the State. In an
application for authorization, a State shall acknowledge its
responsibility to address all response actions at the
facilities for which it seeks authorization.
``(3) Promulgation of regulations.--The Administrator shall
issue regulations to determine a State's eligibility for
authorization and establish a process and criteria for
withdrawal of such an authorization. At a minimum, a State
must demonstrate--
(A) that it has a process for allocating liability among
potentially responsible parties that is substantially
consistent with section 122a of this Act (as added by the
Superfund Reform Act of 1994);
(B) that it provides for public participation in a manner
that is substantially consistent with section 117 of this Act
and the National Contingency Plan;
(C) that it provides for selection and conduct of response
actions in a manner that is substantially consistent with
section 121 of this Act; and
(D) that it provides for notification of and coordination
with trustees in a manner that is substantially consistent
with section 104(b)(2) and section 122(j)(1) of this Act.
``(b) Referral of Responsibilities.--
``(1) In general.--At any time after the promulgation of
the criteria required by paragraph (3) of this subsection, a
State may apply to the Administrator to carry out, under its
own legal authorities, response actions at a specific
facility or facilities listed or proposed for listing on the
National Priorities List, within the State.
``(2) Requirements for referral.--If the Administrator
determines that the State possesses the legal authority,
technical capability, and resources necessary to conduct
response actions and enforcement activities in a manner
substantially consistent with this Act and the National
Contingency Plan at the facilities listed or proposed for
listing on the National Priorities List facilities for which
it seeks referral, the Administrator, pursuant to a contract
or agreement entered into between the Administrator and the
State, may refer the responsibilities established under this
Act to the State for the facilities for which the State seeks
referral. Except as otherwise provided in this Act, such
responsibilities include, but are not limited to,
responding to a release or threatened release of a
hazardous substance or pollutant or contaminant; selecting
response actions; expending the Fund in amounts authorized
by the Administrator to finance response activites; and
taking enforcement actions, including cost recovery
actions to recover Fund expenditures made by the State.
``(3) Promulgation of regulations.--The Administrator shall
promulgate regulations to determine a State's eligibility for
referral and establish a process and criteria for withdrawal
of such referral. At a minimum, a State must demonstrate that
it meets the requirements described in subsection (a)(3).
``(c) Authorized Use of Fund.--At facilities listed on the
National Priorities List for which a State is authorized
under subsection (a), and at facilities listed on the
National Priorities List which are referred to a State under
subsection (b), the State shall be eligible for response
action financing from the Fund. The Administrator shall
ensure that all allocations of the Fund to the States for the
purpose of undertaking site-specific response actions are
based primarily on the relative risks to human health and the
environment posed by the facilities eligible for funding. The
amount of Fund financing for a State-selected response action
at a facility listed on the National Priorities List shall--
``(1) take into account the number and financial viability
of parties identified as potentially liable for response
costs at such facility, and
``(2) be limited to the amount necessary to achieve a level
of response that is not more stringent than that required
under this Act.
A State also may obtain Fund financing to develop and enhance
its capacity to undertake response actions and enforcement
activities. The Administrator shall establish specific
criteria for allocating expenditures from the Fund among
States for the purposes of undertaking response actions and
enforcement activities at referred and State-authorized
facilities, and building state capacities to undertake such
response actions and enforcement activities. The
Administrator shall develop a program and provide an
appropriate level of Fund financing to assist Indian tribes
in developing and enhancing their capabilities to conduct
response actions and enforcement activities.
``(d) State Cost Share.--As provided in section
104(c)(3)(B) of this Act (as added by the Superfund Reform
Act of 1994), a State shall pay or assure payment of 15
percent of the costs of all response actions and program
support or other costs for which the State receives funds
from the Fund under this section. An Indian tribe authorized
to conduct a response actions and enforcement activities or
to which facilities have been referred under this section is
not subject to the cost-share requirement of this subsection.
``(e) Terms and Conditions; Cost Recovery.--A contract or
agreement for a State authorization or referral under this
section is subject to such terms and conditions as the
Administrator prescribes. The terms and conditions shall
include requirements for periodic auditing and reporting of
State expenditures from the Fund. The contract or agreement
may cover a specific facility, a category of facilities, or
all facilities listed or proposed to be listed on the
National Priorities List in the State. The contract or
agreement shall require the State to seek cost recovery, as
contemplated by this Act, of all expenditures from the Fund.
Five percent of the monies recovered by the State may be
retained by the State for use in its hazardous substance
response program, and the remainder shall be returned to the
Fund. Before making further allocations from the Fund to any
State, the Administrator shall take into consideration the
effectiveness of the State's enforcement program and cost
recovery efforts.
``(f) Enforcement of Agreements.--If the Administrator
enters into a contract or agreement with a State pursuant to
this section, and the State fails to comply with any terms
and conditions of the contract or agreement, the
Administrator, after providing sixty days notice, may
withdraw the State authorization or referral, or seek in the
appropriate federal district court to enforce the contract or
agreement to recover any funds advanced or any costs incurred
because of the breach of the contract or agreement by the
State.
``(g) More Stringent State Standards.--Under either an
authorization or referral, a State may select a response
action that achieves a level of cleanup that is more
stringent than required under section 121(d) of this Act if
the State agrees to pay for the incremental increase in
response cost attributable to achieving the more stringent
cleanup level. Neither the Fund nor any party liable for
response costs shall incur costs in excess of those necessary
to achieve a level of cleanup required under section 121(d)
of this Act.
``(h) Opportunity For Public Comment.--The Administrator
shall make available, for public review and comment,
applications for authorization under subsection (a) and
applications for referral under subsection (b). The
Administrator shall not approve or withdraw authorization or
referral from a State unless the Administrator notifies the
State, and makes public, in writing, the reasons for such
approval or withdrawal.
``(i) Periodic Review of Authorized State Programs and
Referrals.--The Administrator shall conduct a periodic review
of authorized State programs and referrals to determine,
among other things, whether--
``(1) the response actions were selected and conducted in a
manner that was substantially consistent with this Act, the
National Contingency Plan, and the contract or agreement
between the Administrator and the State;
``(2) the State response costs financed by Fund
expenditures were incurred in the manner agreed to by the
State, in accordance with the contract or agreement between
the Administrator and the State; and
``(3) the State's cost recovery efforts and other
enforcement efforts were concluded in accordance with the
contract or agreement between the Administrator and the
State.
The Administrator, in consultation with the States, shall
develop specific criteria for periodic reviews of authorized
State programs and referrals. The Administrator shall
establish a mechanism to make the periodic State reviews
available to the public.
``(j) Modification of Response.--At a facility for which a
State selects a response action under an authorization or a
referral, the State shall afford the opportunity for public
participation in a manner that is substantially consistent
with the requirements of section 117(f)-(i) of this Act, and
shall give notice of and a copy of the proposed plan for
response action to the Administrator. The State also shall
give prompt written notice and a copy of the final decision
in selecting the response action to the Administrator. Within
90 days from the date of receipt of such notice and final
response action decision from the State, the Administrator
may issue a notice of a request to modify the State-selected
remedy. The Administrator's notice shall be in writing and
shall set forth basis for the Administrator's position, and
the final date for responding to the Administrator's request,
which shall be no less than 90 days from the date of the
notice. If the State's response does not resolve the
Administrator's concerns to the Administrator's satisfaction,
the Administrator may withhold the distribution of Fund
monies for the selected response action or may withdraw all
or part of the State's authorization or referral.
``(1) Effect of Section.--The President shall retain
authority to take response actions at facilities listed or
proposed for listing on the National Priorities List that are
not being addressed by a State under an authorization or
referral pursuant to this section. At facilities listed or
proposed for listing on the National Priorities List that are
being addressed by a State under either an authorization or a
referral, the President may take response actions that the
President determines necessary to protect human health or the
environment, if the State fails, after a request by the
Administrator to take such response actions in a timely
manner. A State does not have the authority, except pursuant
to this section, to take or order a response action, or any
other action relating to releases or threatened releases, at
any facility listed or proposed for listing on the National
Priorities List. This section does not effect the authority
of the United States under this Act to seek cost recovery for
costs incurred by the United States.
(b) Transition and Conforming Amendments.--
(1) Sections 104(c)(5), 104(c)(7), 104(d)(1) and 104(d)(2)
of the Act are each amended by inserting after the heading in
each paragraph the following--``This paragraph applies only
to response actions for which a Record of Decision or other
decision document is signed before the date of enactment of
the Superfund Reform Act of 1994 and response actions covered
by a contract or agreement for which a State has selected,
pursuant to the option provided in subsection (c)(3)(C) (as
added by the Superfund Reform Act of 1994), the funding
requirements set forth in subsection (c)(3)(A) (as amended by
Superfund Reform Act of 1994).'';
(2) Section 114(a) of the Act is amended by striking
``Nothing'' and inserting--``Except as otherwise provided in
this Act, noting'';
(3) Section 12(f)(1) of the Act is amended by striking the
existing provisions and inserting--``The President may
repeal, no earlier than one year after the promulgation of
final regulations under sections 127(a)(3) and 127(b)(3), the
regulations issued under this paragraph prior to the date of
enactment of the Superfund Reform Act of 1994.'';
(4) Section 121(f)(2) of the Act is amended by--
(A) striking ``legally applicable or relevant and
appropriate'' from the second sentence of subparagraph (A);
and
(B) striking ``subsection (d)(4)'' from the second sentence
of subparagraph (A) and inserting ``subsection (d)(5)(C)'';
(5) Section 121(f)(3) of the Act is amended by--
(A) striking ``legally applicable or relevant and
appropriate'' from the second sentence of subparagraph (A);
and
(B) striking ``subsection (d)(4)'' from the second sentence
of subparagraph (A) and inserting ``subsection (d)(5)(C)'';
and
(6) Section 302(d) of the Act is amended by striking
``Nothing'' and inserting--``Except as otherwise provided in
this Act, noting''.
SEC. 202. TRANSFER OF AUTHORITIES.
Section 120(g) of the Act (42 U.S.C. 9620(g)) is amended by
adding, after ``the Environmental Protection Agency,'' the
phrase ``and except as provided in section 127,''.
SEC. 203. STATE ROLE IN DETERMINATION OF REMEDIAL ACTION
TAKEN.
Section 120(h)(3) of the Act (42 U.S.C. 9620(h)(3)) is
amended by adding the end thereof the following:
``If the property being transferred is part of a facility
subject to a State authorization or a referral under section
127, all demonstrations required by this paragraph to be made
to the Administrator shall be made to the appropriate State
official.''.
SEC. 204. STATE ASSURANCES.
Section 104(c)(3) of the Act (42 U.S.C. 9604(c)(3)) is
amended by--
(a) in the beginning of the paragraph after ``(3)''
inserting ``State cost shares for response actions and
programs for which Superfund funds may be allocated under
this section or section 127 shall be as follows--'';
(b) striking ``The'' before ``President'' and inserting
``(A) For all remedial actions for which a Record of Decision
is signed before the date of enactment of the Superfund
Reform Act of 1994, the'';
(c) redesignating subparagraph (A), (B) and (C) of existing
section 104(c)(3) as subparagraphs (1), (2) and (3)
respectively; by striking ``(i)'', wherever it appears and
inserting ``(I)''; and striking ``(ii)'' wherever it appears
and inserting ``(II)'';
(d) adding a new subparagraph (B) as follows--
``(B) Subject to the provisions of subparagraph (C), for
the costs of all response actions for which a Record of
Decision of other decision document is signed after the date
that is one year after the effective date of final
regulations promulgated under section 127(a)(3) and section
127(b)(3), and for all program or other costs for which
Fund money may be allocated to the State pursuant to this
section or section 127, the President shall not provide or
authorize funding from the Fund unless the State first
enters into a contract or agreement with the President
providing assurances deemed adequate by the President that
the State will pay or assure payment of 15 per cent of all
such costs as required by section 127(d). The
Administrator may provide funding authorized under this
paragraph for a one-year or other period for all costs and
facilities in a State; in that event, the State cost share
requirement set forth above shall apply to all costs
covered by such period.''; and
(e) adding a new subparagraph (C) as follows--
``(C) Each State shall have the option of receiving funding
for all response action costs and program or other costs for
which funding is authorized under this section or section 127
pursuant to either subparagraph (A) or subparagraph (B) of
this paragraph. The option selected by the State shall apply
to all contracts and agreements signed pursuant to this
section or section 127.''.
SEC. 205. SITING.
Section 104(c)(9) of the Act (42 U.S.C. 9604(c)(9)) is
amended to read as follows--
``(9) Siting.--Effective one year after the date of
enactment of the Superfund Reform Act of 1994, the President
shall not provide any remedial actions pursuant to this
section unless the State in which release occurs submits a
report describing its plans for adequate disposal capacity
for hazardous wastes, in accordance with guidelines issued by
the Administrator.''.
SEC. 206. THE NATIONAL PRIORITIES LIST.
(a) Section 105(a)(8)(B) the Act (42 U.S.C. 9605(a)(8)(B))
is amended by striking ``as part of the plan'', and by
inserting before ``Within'' the sentence ``The National
Priorities List, and any modifications to the National
Priorities List, may be adopted administratively, and without
rulemaking.''.
(b) Section 105(a)(8) of the Act (42 U.S.C. 9606(a)(8)) is
amended by adding after subparagraph (B) the following new
subparagraph--
``(C) before determining that a facility is to be listed on
the National Priorities List, the Administrator shall publish
a notice proposing the facility for listing on the National
Priorities List and shall provide an opportunity for public
comment. Public notice and opportunity for comment also shall
be provided before a decision by the Administrator to remove
a facility from the National Priorities List. The
Administrator shall establish a procedure under which any
person may request that a facility be considered for listing
on, or removal from, the National Priorities List. The
Administrator has the sole discretion to list or remove a
facility on the National Priorities List.''.
SEC. 207. THE STATE REGISTRY.
Section 105(a)(8) of the Act (42 U.S.C. 9605(a)(8)) is
amended by adding after subparagraph (C) (as added by this
Act) a new subparagraph--
``(D) State registry.--Each State shall maintain and make
available to the public a list of facilities in the State
that are believed to present a current or potential hazard to
human health or the environment due to the release or
threatened release of hazardous substances or pollutants or
contaminants. Each State, in consultation with the
Administrator and other appropriate federal agencies, shall
prepare such listing, and shall, on an annual basis, publish
the State Registry, specifying the governmental agency
addressing the facility, and whether the facility is on the
National Priorities List.''.
TITLE III--VOLUNTARY RESPONSE
SEC. 301. PURPOSES AND OBJECTIVES.
The purposes and objectives of this title are to--
(a) significantly increase the pace of response activities
at contaminated sites by promoting and encouraging the
development and expansion of State voluntary response
programs, and
(b) benefit the public welfare by returning contaminated
sites to economically productive uses.
SEC. 302. STATE VOLUNTARY RESPONSE PROGRAM.
Title I of the Act is amended by adding after section 127
(as added by this Act) the following new section--
``SEC. 128. VOLUNTARY RESPONSE PROGRAM.
``(a) In General.--The Administrator shall establish a
program to provide technical and other assistance to the
States to establish and expand voluntary response programs.
``(b) Voluntary Response Program.--The Administrator shall
assist States to establish and administer a voluntary program
that--
``(1) covers all eligible facilities, as defined in
subsection (c) of this section, within the State;
``(2) provides adequate opportunities for public
participation, including prior notice and opportunity for
comment, in selecting response actions;
``(3) provides opportunities for technical assistance for
voluntary response actions;
``(4) has the capability, through enforcement or other
mechanisms, of assuming the responsibility for completing a
response action if the current owner or prospective purchaser
fails or refuses to complete the necessary response,
including operation and maintenance; and
``(5) provides adequate oversight and has adequate
enforcement authorities to ensure that voluntary response
actions are completed in accordance with applicable Federal
and State laws, including applicable permit requirements and
any on-going operation and maintenance or long-term
monitoring activities.
``(c) Eligible Facilities.--
``(1) Except as provided in paragraph 2 of this subsection,
the term ``eligible facility'' means a facility or portion of
a facility where there has been a release or threat of
release of a hazardous substance, pollutant, or contaminant
into the environment.
``(2) The term ``eligible facility'' does not include any
of the following--
``(A) a facility at which a remedial investigation and
feasibility study is underway, unless the Administrator, in
consultation with the State, determines that it is
appropriate to allow the response action at such a facility
to proceed under a voluntary response program;
``(B) a facility with respect to which a Record of Decision
has been issued under section 104 of this Act;
``(C) a facility with respect to which a corrective action
permit condition or order has been proposed, issued,
modified, or amended to require implementation of specific
corrective measures under section 3004(u), 3004(v), or
3008(h) of the Solid Waste Disposal Act [42 U.S.C. 6924(u),
6924(v), or 6928(h)]:
``(D) a land disposal unit with respect to which a closure
notification under subtitle C of the Solid Waste Disposal Act
(42 U.S.C. 6921 et seq.) has been submitted;
``(E) a facility with respect to which an administrative or
judicial order or decree concerning the response action has
been issued, sought, or entered into by the United States
under this Act, the Solid Waste Disposal Act (42 U.S.C. 6901
et seq.), the Atomic Energy Act of 1954 (42 U.S.C. 2011 et
seq.), the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.), the Toxic Substances Control Act (15 U.S.C.
2601 et seq.) or title XIV of the Public Health Service Act,
commonly known as the Safe Drinking Water Act (42 U.S.C.
300(f) et seq.); and
``(F) a facility at which assistance for response
activities may be obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.) from the Leaking
Underground Storage Tank Trust Fund established under section
9508 of the Internal Revenue Code of 1986.
``(3) A facility listed or proposed for listing on the
National Priorities List may be an ``eligible facility'' if--
``(A) the facility is not a facility identified in
paragraph (2);
``(B) the State in which the facility is located has
obtained a State authorization or referral under section 127
of this Act; and
``(C) the Administrator concurs in the State's
determination to address the facility under its voluntary
response program.
``(d) Annual Reporting.--The Administrator shall report,
not later than 1 year after enactment of this Act and
annually thereafter, to the Congress on the status of State
voluntary response programs including--
``(1) whether the State's voluntary response program
continues to meet the criteria set forth in subsection (b) or
(c);
``(2) whether the State has adopted procedures to ensure
that all response actions completed or undertaken under the
State's voluntary response program comply with all applicable
Federal and State laws;
``(3) whether public participation opportunities have been
adequate during the process of selecting a response action
for each voluntary response;
``(4) whether voluntary response actions completed or
undertaken under the State voluntary response program have
been implemented in a manner that has reduced or eliminated
risks to human health and the environment to the satisfaction
of the State;
``(5) whether voluntary response actions completed or
undertaken under the State voluntary response program at
facilities listed or proposed for listing on the National
Priorities List were conducted in accordance with section
121(d) of this Act; and
``(6) whether a voluntary response action has increased
risk to human health or the environment, and whether a State
has taken timely and appropriate steps to reduce or eliminate
that risk to human health or the environment.
``(i) Statutory Construction.--This section is not
intended--
``(1) to impose any requirement on a State voluntary
response program existing on or after the date of enactment
of this Act; or
``(2) to affect the liability of any person or response
authorities afforded under any law (including any regulation)
relating to environmental contamination, including this Act
(except as expressly provided in section 101(39)(D) (42
U.S.C. 9601(39)(D)), section 107(a)(5)(C) (42 U.S.C.
9607(a)(5)(C)), the Solid Waste Disposal Act (42 U.S.C. 6901
et. seq.), the Federal Water Pollution Control Act (33 U.S.C.
1251 et. seq.), the Toxic Substances Control Act (15 U.S.C.
2601 et. seq.), or title XIV of the Public Health Service
Act, commonly known as the ``Safe Drinking Water Act'' (42
U.S.C. 300(f) et. seq.).''.
SEC. 303. SITE CHARACTERIZATION PROGRAM.
Title I of the Act is amended by adding after section 128
(as added by this Act) the following new section--
``SEC. 129. SITE CHARACTERIZATION TECHNICAL ASSISTANCE
PROGRAM.
``(a) In General.--The Administrator shall establish a
program to provide technical and other assistance to
municipalities to conduct site characterizations for
facilities at which voluntary response actions are being
conducted or are proposed to be conducted pursuant to a State
voluntary response program that meets the requirements
described in section 127.
``(b) Technical Assistance.--In carrying out the program
established under subsection (a), the Administrator may
provide technical and other assistance to a municipality to
conduct a site characterization of a facility within the
jurisdiction of the municipality at which voluntary response
actions are being conducted or are proposed to be conducted.
A municipality requesting technical and other assistance
shall provide to the Administrator the following
information--
``(1) describing the facility at which voluntary response
actions are being conducted or are proposed to be conducted;
``(2) demonstrating the financial need of the owner or
prospective purchaser of such a facility for funds to conduct
a site characterization;
``(3) analyzing the potential of the facility for creating
new businesses and employment opportunities on completion of
the response action;
``(4) estimating the fair market value of the site after
the proposed or ongoing response action, if a response action
is necessary;
``(5) regarding the economic viability and commercial
activity on real property--
``(i) located within the immediate vicinity of the affected
site at the time of consideration of the application; or
``(ii) projected to be located within the immediate
vicinity of the affected site by the date that is 5 years
after the date of the consideration of the application;
``(6) regarding the potential of the facility for creating
new businesses and employment opportunities on completion of
a response action;
``(7) regarding whether the affected site is located in an
economically distressed community;
``(8) regarding the presence of multiple sources of risk as
described in section 117(k) of this Act; and
``(9) in such form, as the Administrator considers
appropriate to carry out the purposes of this section.''.
TITLE IV--LIABILITY AND ALLOCATION
SEC. 401. RESPONSE AUTHORITIES.
(a) Section 104(e)(2) of the Act (42 U.S.C. 9604(e)(2)) is
amended by deleting the word ``cleanup'' and inserting the
phrase ``response action'', and inserting after subparagraph
(C) the following--
``(D) The nature and extent of all activities and
operations at such vessel or facility, including the identity
of any persons engaged in, responsible for, controlling, or
having the ability to control such activities or operations.
``(E) Information relating to the liability or
responsibility of any person to perform or pay for a response
action.
``(F) Information that is otherwise relevant to enforce the
provisions of this Act.''
(b) Section 104(e)(7) of the Act (42 U.S.C. 9604(e)) is
amended to read as follows--
``(7) Administrative subpoenas--When it would assist in the
collection of information necessary or appropriate for the
purposes of implementing this Act, the President may by
subpoena require the attendance and testimony of witnesses
and the production of reports, papers, documents, answers to
questions, and other information that the President deems
necessary. Witnesses shall be paid the same fees and mileage
that are paid witnesses in the courts of the United States.
In the event of contumacy or failure or refusal of any person
to obey any such subpoena, any district court of the United
States in which venue is proper shall have jurisdiction to
order any such person to comply with such subpoena. Any
failure to obey such an order of the court is punishable by
the court as a contempt thereof.
``(8) Confidentiality of information--
``(A) Any records, reports, or information obtained from
any person under this section (including records, reports or
information obtained by representatives of the President and
records, reports or information obtained pursuant to a
contract, grant or other agreement to perform work pursuant
to this section, but not including documents, reports,
compilations, summaries, or other analyses prepared by the
President or representatives of the President which reference
or incorporate information obtained under this section) shall
be available to the public, except as follows:
``(i) Upon a showing satisfactory to the President (or the
State, as the case may be) by any person that records,
reports or information, or any particular part thereof (other
than health or safety effects data), to which the President
(or the State, as the case may be) or any officer, employee,
or representative has access under this section if made
public would divulge information entitled to protection under
section 1905 of Title 18 of the U.S. Code, such information
or particular portion thereof shall be considered
confidential in accordance with the purposes of that section,
except that such record, report, document or information
may be disclosed to other officers, employees, or
authorized representatives of the United States (including
government contractors) concerned with carrying out this
chapter, or when relevant in any proceeding under this
chapter, or, if such records, reports or information are
obtained or submitted to the United States (or the State,
as the case may be) pursuant to a contract, grant or other
agreement to perform work pursuant to this section, to
persons from whom the President seeks to recover costs
pursuant to this Act.
``(ii) This section does not require that information which
is exempt from disclosure pursuant to section 522(a) of Title
5 of the U.S. Code by reason of subsection (b)(5), subsection
(b)(6), or subsection (b)(7) of such section, be available to
the public, nor shall the disclosure of any such information
pursuant to this section authorize disclosure to other
parties or be deemed to waive any confidentiality privilege
available to the President under any federal or State law.''.
SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.
(a) Section 106(a) of the Act (42 U.S.C. 9606(a)) is
amended by
(1) inserting after the phrase ``hazardous substance'' the
phrase ``, or pollutant or contaminant''; and
(2) by adding at the end thereof the following: ``The
President may amend such orders and issue additional orders,
as appropriate, without a subsequent finding of an imminent
and substantial endangerment, to complete response action
undertaken in response to a release or substantial threat of
a release, or to require additional response actions that are
necessary or appropriate.''.
(b) Section 106(b)(1) of the Act (42 U.S.C. 9606(b)(1)) is
amended
(1) by striking out the phrase ``to enforce such order'',
and
(2) by inserting before the period ``, or be required to
comply with such order, or both, even if another party has
complied, or is complying, with the terms of the same order
or another order pertaining to the same facility, release or
threatened release''; and
(3) by inserting at the end of the paragraph the
following--
``For purposes of this title, a `sufficient cause' requires--
``(A) an objectively reasonable belief by the person to
whom the order is issued that the person is not liable for
any response costs under section 107 of this title; or
``(B) that the action to be performed pursuant to the order
is determined to be inconsistent with the national
contingency plan.
The existence or results of an allocation process pursuant to
section 122a of this title shall not affect or constitute a
basis for a determination of `sufficient cause.'''.
(c) Section 106(b)(2) is amended by moving the second
sentence of subsection (b)(2)(A) and redesignating it as
subsection (b)(4), and by striking the word ``paragraph'' in
such newly designated subsection (b)(4) and replacing it with
the word ``subsection''.
(d) Section 106(b)(2)(A) of the Act (42 U.S.C.
9602(b)(2)(A)) is amended by striking out the phrase
``completion of'', and inserting the phrase ``the President
determines that such person has completed''.
(e) Section 106(b)(2)(C) of the Act (42 U.S.C.
9606(b)(2)(C)) is amended by inserting after the words
``Subparagraph (D)'' the phrase ``, or as may be authorized
in a settlement entered into under section 122a of this
title.''.
SEC. 403. LIMITATIONS TO LIABILITY FOR RESPONSE COSTS.
Section 107 of the Act (42 U.S.C. 9607), is amended--
(a) in subsection (a) by inserting--
``(5) Notwithstanding paragraphs (1) through (4) of this
subsection, a person who does not impede the performance of
response actions or natural resource restoration shall not be
liable--
``(A) to the extent liability is based solely on subsection
107(a)(3) or 107(a)(4) of this Act, and the arrangement for
disposal, treatment, or transport for disposal or treatment,
or the acceptance for transport for disposal or treatment,
involved less than five hundred (500) pounds of municipal
solid waste (MSW) or sewage sludge as defined in sections
101(41) and 101(44) of this Act, respectively, or such
greater or lesser amount as the Administrator may determine
by regulation;
``(B) to the extent liability is based solely on subsection
107(a)(3) or 107(a)(4) of this Act, and the arrangement for
disposal, treatment, or transport for disposal or treatment,
or the acceptance for transport for disposal or treatment,
involved less than ten (10) pounds or liters of materials
containing hazardous substances or pollutants or contaminants
or such greater or lesser amount as the Administrator may
determine by regulation, except where--
``(i) the Administrator has determined that such material
contributed significantly or could contribute to the costs of
response at the facility; or
``(ii) the person has failed to respond fully and
completely to information requests by the United States, or
has failed to certify that, on the basis of information
within its possession, it qualifies for this exception;
``(C) to the extent liability is based solely on subsection
107(a)(1) of this Act, for a release or threat of release
from a facility, and the person is a bona fide prospective
purchaser of the facility as defined in section 101(39);
``(D) to the extent the liability of a department, agency,
or instrumentality of the United States is based solely on
section 107(a)(1) or (2) with regard to a facility over which
the department, agency, or instrumentality exercised no
regulatory or other control over activities that directly or
indirectly resulted in a release of threat of a release of a
hazardous substance, and--
``(i) all activities that directly or indirectly resulted
in a release of threat of a release of a hazardous substance
during the period of ownership by the United States occurred
prior to 1976;
``(ii) the activities either directly or indirectly
resulting in a release or a threat of a release of a
hazardous substance at the facility were pursuant to a
statutory authority;''
``(iii) such department, agency, or instrumentality of the
United States did not cause or contribute to the release or
threat of release of hazardous substances or pollutants or
contaminants at the facility; and
``(iv) there are persons, other than the United States, who
are both potentially liable for the release of hazardous
substances or pollutants or contaminants at the facility and
fully capable of performing or financing the response action
at the facility; or
``(E) to the extent the liability of a federal or state
entity or municipality is based solely on its ownership of a
road, street, or other right of way or other public
transportation route over which hazardous substances are
transported, or the granting of a license or permit to
conduct business; or
``(F) for more than ten percent of total response costs at
the facility, in aggregate, for all persons to the extent
their whose liability is based solely on subsections
107(a)(3) or 107(a)(4) of this Act, and the arrangement for
disposal, treatment, or transport for disposal or treatment,
or the acceptance for transport for disposal or treatment
involved only municipal solid waste (MSW) or sewage sludge as
defined in sections 101(41) and 101(44), respectively, of
this Act. Such limitation on liability shall apply only--
``(i) where either the acts or omissions giving rise to
liability occurred before the date thirty-six (36) months
after enactment of this paragraph, or the person asserting
the limitation institutes or participates in a qualified
household hazardous waste collection program within the
meaning of section 101(43); and
``(ii) where the disposal did not occur on lands owned by
the United States or any department, agency, or
instrumentality thereof, or on any tribal land.''.
(b) by inserting after subsection (m) the following--
``(n) Prospective purchaser and windfall lien.--Where there
are unrecovered response costs for which an owner of a
facility is not liable by operation of subsection
107(a)(5)(C) of this Act, and a response action for which
there are unrecovered costs inures to the benefit of such
owner, the United States shall have a lien upon the facility
for such unrecovered costs. Such lien--
``(1) shall not exceed the increase in fair market value of
the property attributable to the response action at the time
of a subsequent sale or other disposition of property;
``(2) shall be subject to the requirements for notice and
validity established in paragraph (3) of subsection (l) of
this section; and
``(3) shall continue until the earlier of satisfaction of
the lien, or recovery of all response costs incurred at the
facility.''.
(c) Section 120 of the Act (42 U.S.C. 9620) is amended by
inserting before the word ``Facilities'' in the title of the
section the phrase ``Entities And''.
(d) Section 120(a)(1) of the Act (42 U.S.C. 9620(a)(1)) is
amended--
(1) after the word ``title'' in the first sentence on
inserting the phrase ``the right to contribution protection
set forth in Sections 113 and 122, when such department,
agency or instrumentality resolves its share of liability
under this Act and liability for all federal civil and
administrative penalties and fines imposed under this Act,
regardless of whether such penalties and fines are punitive
or coercive in nature or are imposed for isolated or
continuing violations.'';
(2) by inserting the word ``other'' before the phrase
``person or entity'' in the second sentence and by inserting
after the second sentence the following new sentence--
``The waiver of immunity in this section does not encompass
uniquely governmental actions such as--
``(A) any actions of any department, agency or
instrumentality, except for official seizure of or holding
title to a facility, taken pursuant to Federal authority to
regulate the economy in preparation for, during, or otherwise
in connection with war through the use and implementation of
national priority rating systems, national wage, profit and
price incentives or controls, or otherwise to mobilize the
national economy for war-related production; or
``(B) any actions of any department, agency, or
instrumentality taken in response to a natural disaster
pursuant to the Emergency Flood Control Work Act (33 U.S.C.
701(n)), or the Disaster Relief Act of 1974 (42 U.S.C. 5121
et seq.).'';
(e) Section 120(a)(4) of the Act (42 U.S.C. 9620(a)(4) is
amended--
(1) by inserting ``currently'' before ``owned'' in the
first sentence;
(2) by inserting after the word ``United States'' the
phrase ``in the following circumstances: (A)''; and
(3) by inserting after the word ``List'' ``; (B) when such
facilities are included on the National Priorities List but
are specifically referred to the State by the Administrator
pursuant to the provisions of section 127 of this Act; or (C)
when such laws are part of an authorized program approved by
the Administrator pursuant to section 127 of this Act, and
such facilities are included on the National Priorities List
and are to be addressed by the State authorized program
pursuant to section 127 of this Act.
``Each department, agency, or instrumentality of the United
States shall be subject to State requirements, both
substantive and procedural, respecting liability for the
costs of responding to releases or threats of releases of
hazardous substances of non-federally owned facilities
referred to the State pursuant to section 127 of this Act, or
such requirement that are part of a State authorized program
for non-federally owned facilities being addressed under a
State authorized program pursuant to section 127 of this
Act.'';
(4) after the word ``preceding'' by replacing the word
``sentence'' with ``sentences'';
(5) at the end of the Section by adding ``This waiver of
immunity for such facilities shall include all civil and
administrative penalties and fines imposed under such
laws, regardless of whether such penalties and fines are
punitive or coercive in nature or are imposed for isolated
or continuing violations. Neither the United States, nor
any agent, employee or officer thereof, shall be immune or
exempt from any process or sanction of any State or
Federal Court with respect to the enforcement of any
appropriate relief under such laws, but the United States
shall be entitled to remove any action filed in state
court against any department, agency, instrumentality,
employee or officer of the United States to the
appropriate Federal district court. No agent, employee, or
officer of the United States shall be personally liable
for any civil or administrative penalty under any Federal
or State law with respect to any act or omission within
the scope of the official duties of the agent, employee,
or officer. All funds collected by a State from the
Federal Government from penalties and fines imposed for
violation of any substantive or procedural requirement
referred to in this subsection shall be used by the State
only for projects designed to improve or protect the
environment or to defray the costs of environmental
protection or enforcement.''.
(f) Section 120(j)(1) of the Act (42 U.S.C. 9620(j)(1)) is
amended before the phrase ``with respect to the site'' in the
second sentence by inserting ``or any State law applicable
under Section 120(a)(4)''.
SEC. 404. LIABILITY.
(a) Section 107(a)(1) of the Act (42 U.S.C. 9607(a)(1)) is
amended by striking the word ``and'' and inserting the word
``or'';
(b) Section 107(a)(3) of the Act (42 U.S.C. 9607(a)(3)) is
amended by striking out the phrase ``by any other party or
entity,'';
(c) Section 107(a)(4) of the Act (42 U.S.C. 9607(a)(4)) is
amended--
(1) by inserting a blank line before the phrase ``from
which there is a release'';
(2) by moving the phrase ``from which there is a release''
to the left margin;
(3) inserting a comma after the phrase ``threatened
release''; and
(d) Section 107(a)(4)(A) of the Act (42 U.S.C.
9607(a)(4)(A)) is amended by inserting the phrase ``,
including direct costs, indirect costs, and costs of
overseeing response actions conducted by private parties''
before the phrase ``incurred by the United States''.
(e) Section 107(a)(4)(B) of the Act (42 U.S.C.
9607(a)(4)(B)) is amended--
(1) by striking out the word ``other'' both times it
appears; and
(2) by inserting the phrase ``other than the United States,
a State or an Indian tribe'' before the phrase ``consistent
with the national contingency plan''.
(f) Section 107(c)(3) of the Act (42 U.S.C. 9607(c)(3)) is
amended--
(1) by inserting the phrase ``in addition to liability for
any response costs incurred by the United States as a result
of such failure to take proper action,'' after the word
``person'' the second time it appears.
(2) by striking out the phrase ``at least equal to, and not
more than'' and inserting the phrase ``up to'';
(3) by striking out the comma after the word ``times''; and
(4) by striking out the phrase ``any costs incurred by the
Fund as a result of such failure to take proper action'' and
inserting the phrase ``such response costs''.
(g) Section 107 of the Act (42 U.S.C. 9607(a)(4)(B)) is
amended by inserting the phrase ``, or pollutant or
contaminant'' after the term ``hazardous substance'' or
``hazardous substances'' wherever they appear in sections
107(a)(2), (3) and (4); 107(b); 107(c); 107(d) (1) and (2);
107(f)(1); 107(i); 107(j); and 107(k)(1)(B).
SEC. 405. CIVIL PROCEEDINGS.
(a) Section 113(a) of the Act (42 U.S.C. 9613(a)) is
amended--
(1) by striking out the phrase ``upon application by any
interested person'', and inserting the phrase ``by any
adversely affected person through the filing of a petition
for review''; and
(2) by striking out the phrase ``application shall be
made'', and inserting in lieu thereof ``petition shall be
filed''.
(b) Section 113(b) of the Act (42 U.S.C. 9613(b)) is
amended--
(1) before ``without regard to the citizenship,'' by
inserting the phrase ``or in any manner limiting or affecting
the President's ability to carry out a response action under
this Title,''; and
(2) by inserting immediately after the first sentence the
following sentence--``Any action initiated in any state or
local court against the United States (or any department,
agency, or instrumentality, officer or employee thereof)
pursuant to or under any provision of or authorized by this
Title may be removed by the United States to the appropriate
federal district court in accordance with Section 1446 of
Title 18 of the U.S. Code.''
(c) Section 113(g) of the Act (42 U.S.C. 9613(g)) is
amended by striking paragraphs (2) and (3) and inserting--
``(2) Actions for recovery of costs.
``Except as provided in Paragraph (3) below, an initial
action for recovery of costs referred to in section 107 of
this title must be commenced--
``(A) for removal action, within three years after
completion of all removal action taken with respect to the
facility, including off-site disposal of any removed
materials; except that if physical on-site construction of
the remedial action is initiated within three years after the
completion of all removal action taken with respect to the
facility, costs incurred for removal action may be recovered
in the cost recovery action brought under subparagraph (B);
and
``(B) for a remedial action, within six years after
initiation of physical on-site construction of the remedial
action.
``In any such action described in this subsection, the
court shall enter a declaratory judgment on liability for
response costs or damages that will be binding on any
subsequent action or actions to recover further response
costs or damages. A subsequent action or actions under
section 107 of this title for further response costs at the
vessel or facility may be maintained at any time during the
response action, but must be commenced no later than three
years after the date of completion of all response action.
Except as otherwise provided in this paragraph, an action may
be commenced under section 107 of this title for recovery of
costs at any time after such costs have been incurred.
``(3) Contribution--
``An action by a potentially responsible party against
another potentially responsible party for recovery of any
response costs or damages must be commenced within the later
of--
``(A) the time limitations set forth in Paragraph (2)
above, or
``(B) where recovery is sought for costs or damages paid
pursuant to a judgment or settlement, three years after--
``(i) the date of judgment in any action under this Act for
recovery of such costs or damages, or
``(ii) the date of any administrative order or judicial
settlement for recovery of the costs or damages paid or
incurred pursuant to such a settlement.''.
(d) Section 113(g) of the Act (42 U.S.C. 9613(g)) is
amended by inserting the following at the end thereof--
``(4) Claims by the United States, States or Indian tribes.
Claims by the United States under Section 106, and claims by
the United States, a State or Indian tribe under Section
107(a), of this Act shall not be deemed compulsory
counterclaims in an action against the United States, a State
or an Indian tribe seeking response costs, contributions,
damages, or any other claim by any person under this Act.''.
(e) Section 113(j)(1) of the Act (42 U.S.C. 9613(j)(1) is
amended--
(1) before the phrase ``or ordered'' by inserting the
phrase ``or selected by the President pursuant to this
Act,''; and
(2) after the phrase ``or ordered'' by inserting the phrase
``or sought''.
SEC. 406. LIMITATIONS ON CONTRIBUTIONS ACTIONS.
Section 113 of the Act (42 U.S.C. 9613) is amended--
(a) by amending subsection (f)(1) as follows--
(1) by redesignating the paragraph as subparagraph
``(1)(A),'';
(2) before the phrase ``may seek contribution'' by
inserting the phrase ``who is liable or potentially liable
under section 107(a) of this title'';
(3) by striking out the phrase ``during or following any
civil action under section 106 of this title or under section
107(a) of this title'', and inserting in lieu thereof the
phrase ``in a claim asserted under section 107(a)''; and
(4) by deleting the period at the end of the first
sentence, and inserting--
``except that there shall be no right of contribution where--
``(i) the person asserting the right of contribution has
waived such rights in a settlement pursuant to this Act;
``(ii) the person from whom contribution is sought is
liable solely under section 107(a)(3) of this Act, and
contributed less than ten pounds or ten liters of material
containing hazardous substances at the facility, or such
greater or lesser amount as the Administrator may determine
by regulation;
``(iii) the person from whom contribution is sought has
entered into a final settlement with the United States
pursuant to section 122(g).;
(5) before the phrase ``this section and the Federal
Rules'' by inserting the phrase ``section 107(a),''; and
(6) by striking out the sentence ``Nothing in this
subsection shall diminish the right of any person to bring an
action for contribution in the absence of a civil action
under section 106 of this title or section 107 of this
title.''.
(b) by inserting after subparagraph (1)(A) the following
subparagraph--
``(B) Any person who commences an action for contribution
against a person who is not liable by operation of subsection
107(a)(5) of this Act, or against a person who is protected
from suits in contribution by this section or by a settlement
with the United States, shall be liable to the person against
whom the claim of contribution is brought for all reasonable
costs of defending against the claim, including all
reasonable attorney's and expert witness fees.''.
(c) Section 113(f) of the Act (42 U.S.C. 9613(f)) is
amended by striking out paragraph (2), and inserting the
following--
``(2) Settlement.
``A person that has resolved its liability to the United
States in an administrative or judicially approved settlement
shall not be liable for claims by other persons regarding
response actions, response costs or damages addressed in the
settlement. A person that has resolved its liability to a
State in an administrative or judicially approved settlement
shall not be liable for claims by persons other than the
United States regarding response costs or damages addressed
in the settlement for which the State has a claim under this
title. Such settlement does not discharge any other
potentially responsible persons unless its terms so provide,
but it reduces the potential liability of such other persons
by the amount of the settlement. The protection afforded by
this section shall include protection against contribution
claims and all other types of claims, under federal or state
law, that may be asserted against the settling party for
recovery of response costs or damages incurred or paid by
another person, if such costs or damages are addressed in the
settlement, but shall not include protection against claims
based on contractual indemnification or other express
contractual agreements to pay such costs or damages.''.
SEC. 407. SCOPE OF RULEMAKING AUTHORITY.
Section 115 of the Act (42 U.S.C. 9615), is amended by
redesignating the text of the section as subsection ``(a)''
and adding a new subsection--
``(b) The authority conferred by this section includes,
without limitation, authority to promulgate legislative
regulations to define the terms and scope of sections 101
through 405 this Act, inclusive.
``(c) This section confirms, without limitation, authority
to promulgate regulations to define the terms of this Act as
they apply to lenders and other financial services providers,
and property custodians, trustees, and other fiduciaries.''.
SEC. 408. ENHANCEMENT OF SETTLEMENT AUTHORITIES.
Section 122 of the Act (42 U.S.C. 9622), is amended--
(a) by striking out subparagraph (e)(3);
(b) by redesignating subparagraphs (e)(4) and (5) as
subparagraphs (e)(3) and (4), respectively;
(c) by redesignating subparagraph (e)(6) as a new section
122(o) and by amending redesignated section 122(n)--
(1) by deleting ``remedial investigation and feasibility
study'' and inserting in lieu thereof ``response action'';
and
(2) by deleting ``remedial action'' in both places where it
appears and inserting ``response action'';
(d) by inserting at the end of section 122 the following--
``(p) Retention of Funds.--If, as part of any agreement
under this Chapter, the President will be carrying out any
action and the parties will be paying amounts to the
President, the President may retain such amounts in interest
bearing accounts, and use such amounts, together with accrued
interest, for purposes of carrying out the agreement.
``(q) Notwithstanding the limitations on review in section
113(h), and except as provided in subsection (g) of this
section, a person whose claim for response costs or
contribution is limited as a result of contribution
protection afforded by an administrative settlement under
this section may challenge the cost recovery component of
such settlement only by filing a complaint against the
Administrator in the United States District Court within 60
days after such settlement becomes final. Venue shall lie in
the district in which the appropriate Regional Administrator
has her principal office. Any review of an administrative
settlement shall be limited to the administrative record, and
the settlement shall be upheld unless the objecting party can
demonstrate on that record that the decision of the President
to enter into the administrative settlement was arbitrary,
capricious, or otherwise not in accordance with law.''.
(e) by deleting subsection (f)(1) and inserting in lieu
thereof--
``(1) Final covenants.--The President shall offer
potentially responsible parties who enter into settlement
agreements otherwise acceptable to the United States a final
covenant not to sue concerning any liability to the United
States under this Act, including a covenant with respect to
future liability, for response actions or response costs,
provided that--
``(A) The settling party agrees to perform, or there are
other adequate assurances of the performance of, a final
remedial action for the release or threat of release that is
the subject of the settlement;
``(B) The settlement agreement has been reached prior to
the commencement of litigation against the settling party
under section 106 or 107 of this Act with respect to this
facility;
``(C) The settling party waives all contribution rights
against other potentially responsible parties at the
facility; and
``(D) The settling party pays premium that compensates for
the risks of remedy failure; future liability resulting from
unknown conditions; unanticipated increases in the cost of
any uncompleted response action, unless the settling party
is performing the response action; and the United States'
litigation risk with respect to persons who have not
resolved their liability to the United States under this
Act, unless all parties have settled their liability to
the United States, or the settlement covers 100 percent to
the United States' response costs. The President shall
have sole discretion to determine the appropriate amount
of any such premium, and such determinations are committed
to the President's discretion. The President has
discretion to waive or reduce the premium payment for
persons who demonstrate an inability to pay such a
premium.
``(2) Discretionary Covenants.--For all other settlements
under this title, the President may, in his discretion,
provide any person with a covenant not to sue concerning any
liability to the United States under this title, if the
covenant not to sue is in the public interest. The President
may include any conditions in such covenant not to sue,
including but not limited to the additional condition
referred to in paragraph (5) of this subsection. In
determining whether such conditions or covenants are in the
public interest, the President shall consider the
effectiveness and reliability of the response action, the
nature of the risks remaining at the facility, the strength
of evidence, the likelihood of cost recovery, the reliability
of any response action or actions to restore, replace or
acquire the equivalent of injured natural resources, and any
other factors relevant to the protection of human health,
welfare, and the environment.'';
(f) by striking out the word ``remedial'', wherever it
appears in paragraph (f)(2), and inserting the word
``response'';
(g) by deleting paragraphs (f)(3) and (f)(4);
(h) by redesignating existing paragraphs (f)(2), (f)(5) and
(f)(6) as paragraphs (f)(3), (f)(4), and (f)(5),
respectively;
(i) in redesignated subparagraph (f)(5)(A)--
(1) by striking out the word ``remedial'', and inserting in
lieu thereof the word ``response'';
(2) by deleting ``paragraph (2)'' in the first clause of
the first sentence and inserting ``paragraph (1) or (3)'' in
lieu thereof; and
(3) by deleting ``de minimis settlements'' and inserting
``de minimis and other expedited settlements pursuant to
subsection (g) of this section'' in lieu thereof;
(4) by striking the phrase ``the President certifies under
paragraph (3) that remedial action has been completed at the
facility concerned'', and inserting in lieu thereof the
phrase ``that the response action that is the subject of the
settlement agreement is selected''.
(j) by amending redesignated subsection (f)(5)(B)--
(1) by striking ``In extraordinary circumstances, the'' and
inserting the word ``The'';
(2) by striking the phrase ``those referred to in paragraph
(4) and'';
(3) by inserting ``the agreement containing the covenant
not to sue provides for payment of a premium to address
possible remedy failure or any releases that may result
from unknown conditions, and'' before the phrase ``the
other terms''; and
(4) by inserting at the end the following--
``The President may, in his discretion, waive or reduce the
premium payment for persons who demonstrate an inability to
pay such premium.''
(k) by deleting paragraph (g)(1)(A) and inserting in lieu
thereof--
``(g) Expedited Final Settlement.--
``(1) Parties Eligible For Expedited Settlement.--Wherever
practicable and in the public interest, and as provided in
section 122a of this title, the President will as promptly as
possible offer to reach a final administrative or judicial
settlement with potentially responsible parties who, in the
judgment of the President, meet one or more of the following
conditions for eligibility for an expedited settlement:
``(A) the potentially responsible party's individual
contribution of hazardous substances at the facility is de
minimis. The contribution of hazardous substances to a
facility by a potentially responsible party is de minimis if:
``(i) the potentially responsible party's volumetric
contribution of materials containing hazardous substances is
minimal in comparison to the total volumetric contributions
at the facility; such individual contribution is presumed to
be minimal if it is one percent or less of the total
volumetric contributions at the facility, unless the
Administrator identifies a different threshold based on site-
specific factors; and
``(ii) the potentially responsible party's hazardous
substances to do not present toxic or other hazardous effects
that are significantly greater than those of other hazardous
substances at the facility; or''
(l) by inserting the following after subsection (g)(1)(B)--
``(C) The potentially responsible party's liability is
based solely on subsection 107(a)(3) or 107(a)(4) of this
title, and the arrangement for disposal, treatment, or
transport for disposal or treatment, or the acceptance for
transport for disposal or treatment, involved only municipal
solid waste (MSW) or sewage sludge as defined in section
101(41) or 101(44), respectively, of this Act. The
Administrator may offer to settle the liability of generators
and transporters of MSW or sewage sludge whose liability is
limited pursuant to section 107(a)(5)(A) of this title for up
to 10 percent of the total response costs at the facility; or
``(D) The potentially responsible party is a small business
or a municipality and has demonstrated to the United States a
limited ability to pay response costs. For purposes of
this provision--
``(i) In the case of a small business, the President shall
consider, to the extent that information is provided by the
small business, the business' ability to pay for its total
allocated share, and demonstrable constraints on its ability
to raise revenues.
``(ii) In the case of a municipal owner or operator, the
President shall consider, to the extent that information is
provided by the municipality, the following factors: (1) the
municipality's general obligation bond rating and information
about the most recent bond issue for which the rating was
prepared; (2) the amount of total available funds (other than
dedicated funds); (3) the amount of total operating revenues
(other than obligated or encumbered revenues); (4) the amount
of total expenses; (5) the amounts of total debt and debt
service; (6) per capita income; and (7) real property values.
A municipality may also submit for consideration by the
President an evaluation of the potential impact of the
settlement on essential services that the municipality must
provide, and the feasibility of making delayed payments or
payments over time. If a municipality asserts that it has
additional environmental obligations besides its potential
liability under this Act, then the municipality may create a
list of the obligations, including an estimate of the costs
of complying with such obligations. A municipality may
establish an inability to pay through an affirmative showing
that such payment of its liability under this Act would
either (I) create a substantial demonstrable risk that the
municipality would default on existing debt obligations, be
forced into bankruptcy, be forced to dissolve, or be forced
to make budgetary cutbacks that would substantially reduce
current levels of protection of public health and safety, or
(II) necessitate a violation of legal requirements or
limitations of general applicability concerning the
assumption and maintenance of fiscal municipal obligations.''
(m) be deleting paragraphs (2) and (3) of subsection (g)
and inserting in lieu thereof--
``(2) The determination of whether a party is eligible for
an expedited settlement shall be made on the basis of
information available to the President at the time the
settlement is negotiated. Such determination, and the
settlement, are committed to the President's unreviewable
discretion. If the President determines not to apply these
provisions for expedited settlements at a facility, the basis
for that determination must be explained in writing.''
``(3) Additional factors relevant to municipalities.--In
any settlement with a municipality pursuant to this title,
the President may take additional equitable factors into
account in determining an appropriate settlement amount,
including, without limitation, the limited resources
available to that party, and any in-kind services that the
party may provide to support the response action at the
facility. In considering the value of in-kind services, the
President shall consider the fair market value of those
services.''
(n) by striking in paragraph (g)(4) ``$500,000'' and
inserting ``$2,000,000''.
(o) by striking paragraph (g)(5) and redesignating
paragraph (g)(6) as (g)(5).
(p) by amending paragraph (h) by striking--
(1) the title, and inserting the phrase ``Authority to
settle claims for penalties, punitive damages and cost
recovery''; and
(2) by striking out the phrase ``settlement authority''.
(q) by amending paragraph (h)(1)--
(1) before the phrase ``costs incurred'' by inserting the
phrase ``past and future'';
(2) before the phrase ``by the United States Government''
by inserting the phrase ``or that may be incurred'';
(3) by inserting after the phrase ``if the claim has not
been referred to the Department of Justice for further
action,'' the following: ``The head of any department or
agency with the authority to seek, or to request the Attorney
General to seek, civil or punitive damages under this Act may
settle claims for any such penalties or damages which may
otherwise be assessed in civil administrative or judicial
proceedings''; and by striking out ``$500,000'', and
inserting in lieu thereof ``$2,000,000''.
(r) by striking paragraph (h)(4).
SEC. 409. ALLOCATION PROCEDURES.--
The act is amended by inserting following section 122--
``Sec. 122a. Allocation at Multi-party Facilities.--
``(a) Scope.--
``(1) Except as provided in paragraph (3) of this section,
for each non-federally owned facility listed on the National
Priorities List involving two or more potentially responsible
parties, the Administrator shall:
``(A) initiate the allocation process established under
this section for any remedial action selected by the
President after the date of enactment of the Superfund Reform
Act of 1994, and
``(B) initiate the allocation process established in
subsections (c)(2) through (d)(3) of this section for any
remedial action selected by the President prior to the date
of enactment of the Superfund Reform Act of 1994, when
requested by any potentially responsible party who has
resolved its liability to the United States with respect to
the remedial action or is performing the remedial action
pursuant to an order issued under section 106(a) of this
title, to assist in allocating shares among potentially
responsible parties. The allocation performed pursuant to
this subsection shall not be construed to require:
``(i) payment of an orphan share pursuant to subsection (e)
of this section; or
``(ii) the conferral of reimbursement rights pursuant
to subsection (h) of this section.
``(2) Except as provided in paragraph (3) of this section,
the Administrator may initiate the allocation process
established under this section with respect to any other
facility involving two (2) or more potentially responsible
parties, as the Administrator deems appropriate.
``(3) The allocation process established under this section
shall not apply to any facility where--
``(i) there has been a final settlement, decree or order
that determines all liability or allocated shares of all
potentially responsible parties with respect to the facility;
or
``(ii) where response action is being carried out by a
State pursuant to referral or authorization under section
104(k) of this title.
``(4) Nothing in this section limits or affects--
``(A) the Administrator's obligation to perform an
allocation for facilities that have been the subject of
partial or expedited settlements;
``(B) the ability of a potentially responsible party at a
facility to resolve its liability to the United States or
other parties at any time before initiation or completion of
the allocation process; or
``(C) the validity, enforceability, finality or merits of
any judicial or administrative order, judgment or decree
issued, signed, lodged, or entered with respect to liability
under this Act, or authorizes modification of any such order,
judgment or decree.
``(b) Moratorium on Commencement or Continuation of
Suits.--
``(1) No person may commence an action pursuant to section
107 of this Act regarding a response action for which an
allocation must be performed under subsection (a)(1)(A) of
this section, or for which the Administrator has initiated an
allocation under subsection (a)(1)(B) or (a)(2) of this
section, until 60 days after issuance of the allocator's
report under subsection (d)(1) of this section.
``(2) If an action under section 107 of this Act regarding
a response for which an allocation is to be performed under
this section is pending (A) upon date of enactment of the
Superfund Reform Act of 1994, or (B) upon initiation of an
allocation under subsection (a)(1)(B) or (a)(2) of this
section, the action shall be stayed until 60 days after the
issuance of an allocator's report, unless the court
determines that a stay will not result in a just and
expeditious resolution of the action.
``(3) Any applicable limitations period with respect to
actions subject to paragraph (1) shall be tolled from the
earlier of--
``(A) the date of listing of the facility on the National
Priorities list; or
``(B) the commencement of the allocation process pursuant
to this section, until 120 days after the allocation report
required by this section has been provided to the parties to
the allocation.
``(4) Nothing in this section shall in any way limit or
affect the President's authority to exercise the powers
conferred by sections 103, 104, 105, 106, or 122 of this
title, or to commence an action where there is a
contemporaneous filing of a judicial consent decree resolving
a party's liability; or to file a proof of claim or take
other action in a proceeding under title 11 of the U.S.
Code.
``(5) The procedures established in this section are
intended to guide the exercise of settlement authority by the
United States, and shall not be construed to diminish or
affect the principles of retroactive, strict, joint and
several liability under this title.
``(c) Commencement of Allocation.--
``(1) Responsible party search.--At all facilities subject
to this section, the Administrator shall, as soon as
practicable but not later than 60 days after the earlier of
the commencement of the remedial investigation or the listing
of the facility on the National Priorities List, initiate a
search for potentially responsible parties, using its
authorities under section 104 of this title.
``(2) Notice to parties.--As soon as practicable after
receipt of sufficient information, but not more than eighteen
(18) months after commencement of the remedial investigation,
the Administrator shall:
``(A) notify those potentially responsible parties who will
be assigned shares in the allocation process and notify the
public, in accordance with section 117(d) of this title, of
the list of potentially responsible parties preliminarily
identified by the Administrator to be assigned shares in the
allocation process; and
``(B) provide the notified potentially responsible parties
with a list of neutral parties who are not employees of the
United States and who the Administrator determines, in his or
her sole discretion, are qualified to perform an allocation
at the facility.
``(3) Selection of allocator.--The Administrator shall
thereafter.
``(A) acknowledge the parties' selection of an allocator
from the list, or select an allocator from the list provided
to the parties if the parties cannot agree on a selection
within 30 days of the notice;
``(B) contract with the selected allocator for the
provision of allocation services; and
``(C) make available all responses to information requests,
as well as other relevant information concerning the facility
and potentially responsible parties, to the parties and to
the allocator within 30 days of the appointment of the
allocator. The Administrator shall not make available any
privileged or confidential information, except as otherwise
authorized by law.
``(4) Proposed addition of parties.--
``(A) For 60 days after information has been made available
pursuant to paragraph 3(C), the parties identified by the
Administrator and members of the affected community shall
have the opportunity to identify and propose additional
potentially responsible parties or otherwise provide
information relevant to the facility or such potentially
responsible parties. This period may be extended by the
Administrator for an additional 30 days upon request of a
party.
``(B) Within 30 days after the end of the period specified
in paragraph (A) for identification of additional parties,
the Administrator shall issue a final list of parties
subject to the allocation process, hereinafter the
``allocation parties''. The Administrator shall include in
the list of allocation parties those parties identified
pursuant to paragraph (A) in the allocation process unless
the Administrator determines and explains in writing that
there is not a sufficient basis in law or fact to take
enforcement action with respect to those parties under
this title, or that they have entered into an expedited
settlement under section 122(g). The Administrator's
determination is to be based on the information available
at the time of the determination and is committed to the
Administrator's unreviewable discretion.
``(5) Role of federal agencies.--Federal departments,
agencies or instrumentalities that are identified as
potentially responsible parties shall be subject to, and be
entitled to the benefits of, the allocation process provided
by this section to the same extent as any other party.
``(6) Representation of the united states.--The
Administrator and the Attorney General shall be entitled to
review all documents and participate in any phase of the
allocation proceeding.
``(d) Allocation Determination--
``(1) Settlement and allocation report.--Following issuance
of the list of allocation parties, the allocator may convene
the allocation parties for the purpose of facilitating
agreement concerning their shares. if the allocation parties
do not agree to a negotiated allocation of shares, the
allocator shall prepare a written report, with a nonbinding,
equitable allocation of percentage shares for the facility,
and provide such report to the allocation parties and the
Administrator.
``(2) Information requests.--To assist in the allocation of
shares, the allocator may request information from the
allocation parties, and may make additional requests for
information at the request of any allocation party. The
allocator may request the Administrator to exercise any
information-gathering authority under this title where
necessary to assist in determining the allocation of shares.
``(3) Factors in the allocation.--Unless the allocation
parties agree to a negotiated allocation, the allocator shall
prepare a nonbinding, equitable allocation of percentage
shares for the facility based on the following factors:
``(A) the amount hazardous substances contributed by each
allocation party;
``(B) the degree of toxicity of hazardous substances
contributed by each allocation party;
``(C) the mobility of hazardous substances contributed by
each allocation party;
``(D) the degree of involvement of each allocation party in
the generation, transportation, treatment, storage, or
disposal of the hazardous substance;
``(E) the degree of care exercised by each allocation party
with respect to the hazardous substance, taking into account
the characteristics of the hazardous substance;
``(F) the cooperation of each allocation party in
contributing to the response action and in providing complete
and timely information during the allocation process; and
``(G) such other factors that the Administrator determines
are appropriate by published regulation or guidance,
including guidance with respect to the identification of
orphan shares pursuant to paragraph (3) of this subsection.
``(4) Identification of orphan shares.--The allocator may
determine that a percentage share for the facility is
specifically attributable to an ``orphan share''. The orphan
share may only consist of the following:
``(A) shares attributable to hazardous substances that the
allocator determines, on the basis of information presented,
to be specifically attributable to identified but insolvent
or defunct responsible parties who are not affiliated with
any allocation party;
``(B) the difference between the aggregate shares that the
allocator determines, on the basis of the information
presented, are specifically attributable to contributors of
municipal solid waste subject to the limitations in section
107(a)(5)(D) of this title, and the share actually assumed by
those parties in any settlements with the United States
pursuant to subsection 122(g) of this title, including the
fair market value of in-kind services provided by a
municipality; and
``(C) the difference between the aggregate share that the
allocator determines, on the basis of information presented,
is specifically attributable to parties with a limited
ability to pay response costs and the share actually assumed
by those parties in any settlements with the United States
pursuant to subsection 122(g) of this title.
The orphan share shall not include shares attributable to
hazardous substances that the allocator cannot attribute to
any identified party. Such shares shall be distributed among
the allocation parties.
``(e) Funding of Orphan Shares.--
``From funds available in the Fund in any given fiscal
year, and without further appropriation action, the President
shall make reimbursements from the Fund, to eligible parties
for costs incurred and equitably attributable to orphan
shares determined pursuant to this section, provided that
Fund financing of orphan shares shall not exceed $300 million
in any fiscal year. Reimbursements made under this subsection
shall be subject to such terms and conditions as the
President may prescribe.
``(f) Timing.--
``The allocator shall provide the report required by
subsection (d)(1) of this section to the allocation parties
and the Administrator within 180 days of the issuance of the
list of parties pursuant to subsection (c)(4)(B) of this
section. Upon request, for good cause shown, the
Administrator may grant the allocator additional time to
complete the allocation, not to exceed 90 days.
``(g) Settlement Following Allocation.--
``(1) Obligations of the United States.--The President will
accept a timely offer of settlement from a party based on the
share determined by the allocator, if it includes appropriate
premia and other terms and conditions of settlement, unless
the Administrator, with the concurrence of the Attorney
General of the United States, determines that a settlement
based on the allocator's determinations would not be fair,
reasonable, and in the public interest. The Administrator and
the Attorney General shall seek to make any such
determination within 60 days from the date of issuance of the
allocator's report. The determinations of the Administrator
and the Attorney General shall not be judicially reviewable.
``(2) If the Administrator and the Attorney General
determine not to settle on the basis of the allocation, they
shall provide the allocation parties and members of the
affected community with a written explanation of the
Administrator's determination. If the Administrator and the
Attorney General make such a determination, the parties who
are willing to settle on the basis of the allocation are
entitled to a consultation with an official appointed by the
President, to present any objections to the determination,
within 60 days after the determination.
``(3) Settlements based on allocated shares shall include:
``(A) a waiver of contribution rights against all parties
who are potentially responsible parties for the response
action;
``(B) covenants not to sue, consistent with the provisions
of section 122(f) of this title, and provisions regarding
performance or adequate assurance of performance of response
actions addressed in the settlement;
``(C) a premium that compensates for the United States'
litigation risk with respect to potentially responsible
parties who have not resolved their liability to the United
States, except that no such premium shall apply if all
parties settle or the settlement covers one 100% of response
costs;
``(D) contribution protection, consistent with sections
113(f) and 122(g) of this title, regarding matters addressed
in the settlement. Such settlement does not discharge any of
the other potentially responsible parties unless its terms so
provide, but it reduces the potential liability of the others
by the amount of the settlement; and
``(E) provisions through which the settling parties shall
receive reimbursement from the Fund for any response costs
incurred by such parties in excess of the aggregate of their
allocated share and any premia required by the settlement.
Such right to reimbursement shall not be contingent on the
United States' recovery of response costs from any
responsible person not a party to any settlement with the
United States.
``(4) The President shall report annually to Congress on
the administration of the allocation scheme, and provide
information comparing allocation results with actual
settlements at multiparty facilities.
``(5) The provisions of this section shall not apply to any
offer of settlement made after commencement of litigation by
the United States against the offering party under section
107 of this title.
``(h) Authorization of Reimbursement.--
``In any settlement in which a party agrees to perform
response work in excess of its share, the Administrator shall
have authority in entering the settlement to confer a right
of reimbursement on the settling party pursuant to such
procedures as the Administrator may prescribe.
``(i) Post-Settlement Litigation.--
``(1) General.--The United States may commence an action
under section 107 against any person who has not resolved its
liability to the United States following allocation, on or
after 60 days following issuance of the allocator's report.
In any such action, the potentially responsible parties shall
be liable for all unrecovered response costs, including any
federally-funded orphan share identified in accordance with
subsection (d)(4). Defendants in any such action may implead
any allocation party who did not resolve its liability to the
United States. The Administrator and the Attorney General
shall issue guidelines to ensure that the relief sought
against de minimis parties under principles of joint and
several liability will not be grossly disproportionate to
their contribution to the facility. The application of such
guidelines is committed to the discretion of the
Administrator and the Attorney General.
``(2) In commencing any action under section 107 following
allocation, the Attorney General must certify, in the
complaint, that the United States has been unable to reach a
settlement that would be in the best interests of the United
States.
``(3) Admissibility of allocator's report.--The allocator's
report shall not be admissible in any court with respect to a
claim brought by or against the United States, except in its
capacity as a nonsettling potentially responsible party, or
for the determination of liability. The allocator's report,
subject to the rules and discretion of the court, may be
admissible solely for the purpose of assisting the court in
making an equitable allocation of response costs among the
relative shares of nonsettling liable parties.
``(4) Other authorities unaffected.--Nothing in this
section limits or in any way affects the exercise of the
President's authority pursuant to sections 103, 104, 105, or
106.
``(5) Costs.--
``(A) The costs of implementing the allocation procedure
set forth in this section, including reasonable fees and
expenses of the allocator, shall be considered necessary
costs of response.
``(B) The costs attributable to any funding of orphan
shares identified by the allocator pursuant to subsection
(d)(4) also shall be considered necessary costs of response,
and shall be recoverable from liable parties who do not
resolve their liability on the basis of the allocation.
``(6) Rejection of share determination.--In any action by
the United States under this title, if the United States has
rejected an offer of settlement that is consistent with
subsections (g)(1) and (g)(3) of this section and was
presented to the United States prior to the commencement of
the action, the offeror shall be entitled to recover from the
United States the offeror's reasonable costs of defending the
action after the making of the offer, including reasonable
attorneys' fees, if the ultimate resolution of liability or
allocation of costs with respect to the offeror, taking into
account all settlements and reimbursements with respect to
the facility other than those attributable to insurance or
indemnification, is as or more favorable to the offeror than
the offer based on the allocation.
``(j) Procedures.--
``The Administrator shall further define the procedures of
this section by regulation or guidance, after consultation
with the Attorney General.''.
TITLE V--REMEDY SELECTION AND CLEANUP STANDARDS
SEC. 501. PURPOSES AND OBJECTIVES.
The purposes and objectives of this title are to--
(a) ensure that remedial actions under the Act are
protective of human health and the environment;
(b) provide consistent and equivalent protection to all
communities affected by facilities subject to remedial
action; and,
(c) ensure that the national goals, national generic
cleanup levels, and the national risk protocol required by
this title are developed through a process based on
substantial public input and, where appropriate, on
consensual decision-making.
SEC. 502. CLEANUP STANDARDS AND LEVELS.
Section 121(d)(1)-(2)(C)(i) of the Act (42 U.S.C. 9621(d))
is amended to read as follows--
``(d) Degree of Cleanup.--
``(1) Protection of human health and the environments.--A
remedial action selected under this section or otherwise
required or agreed to by the President under this Act shall
be protective of human health and the environment. In order
to provide consistent protection to all communities, the
Administrator shall promulgate national goals to be applied
at all facilities subject to remedial action under this Act.
``(2) Generic cleanup levels.--The Administrator shall
promulgate, as appropriate, national generic cleanup levels
for specific hazardous substances, pollutants, or
contaminants, based on the national goals established in
paragraph (1). A cleanup level shall--
``(A) reflect reasonably anticipated future land uses,
``(B) reflect other variables which can be easily measured
at a facility and whose effects are scientifically well-
understood to vary on a site-specific basis, and
``(C) represent concentration levels below which a response
action is not required.
``(3) Site-specific methods to establish cleanup levels.--
Notwithstanding the promulgation of national generic cleanup
levels under subsection (d)(2) and nationally-approved
generic remedies under subsection (b)(4) of this section, the
Administrator may, as appropriate, rely on a site-specific
risk assessment to determine the proper level of cleanup at a
facility, based on the national goals established in
paragraph (1) and the reasonably anticipated future land uses
at the facility. This may occur if a national generic cleanup
level has not been developed or to account for particular
characteristics of a facility or its surroundings. In
establishing site-specific cleanup levels, the President
shall consider the views of the affected community in
accordance with section 117 of this Act.
``(4) Risk assessment.--The Administrator shall promulgate
a national risk protocol for conducting risk assessments
based on realistic assumptions. After promulgation, risk
assessments underlying the degree of cleanup and remedy
selection processes shall use the national risk protocol.
``(5) Federal and state laws.--
``(A) A remedial action shall be required to comply with
the substantive requirements of--
``(i) any standard, requirement, criterion, or limitation
under any federal environmental or facility siting law that
the President determines is suitable for application to the
remedial action at the facility; and
``(ii) any promulgated standard, requirement, criterion, or
limitation under any state environmental law specifically
addressing remedial action that is adopted for the purpose of
protecting human health or the environment with the best
available scientific evidence through a public process where
such a law is more stringent than any such federal cleanup
standard, requirement, criterion, or limitation, or the
cleanup level determined in accordance with the requirements
of this section.
``(B) Procedural requirements of federal and state
standards, requirements, criteria, or limitations, including
but not limited to permitting requirements, shall not apply
to response actions conducted on-site. In addition,
compliance with such laws shall not be required with respect
to return, replacement, or redisposal of contaminated media
or residuals of contaminated media into the same medium in
or very near existing areas of contamination on-site.
``(C) The President may select a remedial action meeting
the requirements of paragraph (1) that does not attain a
level or standard of control at least equivalent to the
federal or State standards, requirements, criteria, or
limitations as required by paragraph (A), if the President
finds that--
``(i) the remedial action selected is only part of a total
remedial action that will attain such level or standards of
control when completed:
``(ii) compliance with such requirements at that facility
will result in greater risk to human health and the
environment that alternative options;
``(iii) compliance with such requirements is technically
impracticable from an engineering perspective;
``(iv) a generic remedy under section (b)(4) has been
selected for the facility;
``(v) the remedial action selected will attain a standard
of performance that is equivalent to that required under the
standard, requirement, criterion, or limitation identified
under (A)(i) and (A)(ii) through use of another approach;
``(vi) with respect to a State standard, requirement,
criterion, or limitation, the State has not consistently
applied (or demonstrated the intention to consistently apply)
the standard, requirement, criterion, or limitation in
similar circumstances at other remedial actions within the
State; or
``(vii) in the case of a remedial action to be undertaken
solely under section 104 using the Fund, a selection of a
remedial action that attains such level or standards of
control will not provide a balance between the need for
protection of public health and welfare and the environment
at the facility under consideration, and the availability of
amounts from the Fund to respond to other facilities which
present or may present a threat to pubic health or welfare or
the environment, taking into consideration the relative
immediacy of such threat.
The President shall publish such findings, together with an
explanation and appropriate documentation.''.
SEC. 503. REMEDY SELECTION.
Section 121(b) of the Act (42 U.S.C. 9621(b) is amended to
read as follows--
``(b) General Rules.--
``(1) Selection of protective remedies.--Remedies selected
at individual facilities shall be protective of human health
and the environment. Whether a response action requires
remediation through treatment, containment, a combination of
treatment and containment, or other means, shall be
determined through the evaluation of remedial alternatives.
``(2) Land Use.--In selecting a remedy, the President shall
take into account the reasonably anticipated future uses of
land at a facility as required by this Act.
``(3) Appropriate remedial action.--
``(A) The President shall identify and select an
appropriate remedy utilizing treatment, containment, other
remedial measures, or any combination thereof, that is
protective of human health and the environment and achieves
the degree of cleanup determined under section 121(d), taking
into account the following factors--
``(i) the effectiveness of the remedy;
``(ii) the long-term reliability of the remedy, that is,
its capability to achieve long-term protection of human
health and the environment;
``(iii) any risk posed by the remedy to the affected
community, to those engaged in the cleanup effort, and to the
environment:
``(iv) the acceptability of the remedy to the affected
community; and
``(b) the reasonableness of the cost of the remedy in
relation to the preceding factors (i) through (iv).
``(B) Innovative remedies.--If an otherwise appropriate
treatment remedy is available only at a disproportionate cost
and the President determines that an appropriate treatment
remedy is likely to become available within a reasonable
period of time, the President may select an interim
containment remedy. A selected interim containment remedy
shall include adequate monitoring to ensure the continued
integrity of the containment system. If an appropriate
treatment remedy becomes available within that period of
time, that remedy shall be required.
``(C) Hot spots.--In evaluating a facility for a permanent
containment remedy, if the President determines, based on
standard site investigation, that a discrete area within a
facility is a `hot spot' (as defined in this paragraph), the
President shall select a remedy for the hot spot with a
preference for treatment, unless he determines, based on
treatability studies and other information, that no treatment
technology exists or such technology is only available at a
disproportionate cost. In such instances the President shall
select an interim containment remedy for a hot spot subject
to adequate monitoring to ensure its continued integrity and
shall review the interim containment remedy within five years
to determine whether an appropriate treatment remedy for the
hot spot is available. For purposes of this paragraph, the
term `hot spot' means a discrete area within a facility that
contains hazardous substances that are highly toxic or highly
mobile, cannot be reliably contained, and present a
significant risk to human health or the environment should
exposure occur.
``(4) Generic remedies.--In order to streamline the remedy
selection process, and to facilitate rapid voluntary action,
the President shall establish, taking into account the
factors enumerated in subsection (b)(3)(A), cost-effective
generic remedies for categories of facilities, and expedited
procedures that include community involvement for selecting
generic remedies at an individual facility. To be eligible
for selection at a facility, a generic remedy shall be
protective of human health and the environment at that
facility. When appropriate, the President may select a
generic remedy without considering alternative remedies.''.
SEC. 504. MISCELLANEOUS AMENDMENTS TO SECTION 121.
(a) Section 121(c) of the Act (42 U.S.C. Sec. 9621(c)) is
amended by striking out the word ``initiation'', and
inserting in lieu thereof the phrase ``completion of all
physical on-site construction''.
(b) Section 121(d) of the Act is further amended by--
(1) redesignating paragraph (2)(C)(ii) as paragraph
``(6)(A)'';
(2) redesignating paragraph (2)(C)(iii) as paragraph
``(6)(B)'';
(3) striking ``clauses (iii) and (iv)'' in redesignated
paragraph (6)(A) and inserting ``subparagraph (B)'';
(4) striking paragraph (2)(C)(iv);
(5) redesignating paragraph (3) as paragraph ``(7)'' and
amending it to read as follows--
``(7) In the case of any removal or remedial action
involving the transfer of any hazardous substance or
pollutant or contaminant off-site, such hazardous substance
or pollutant or contaminant shall be transferred to a
facility which is authorized under applicable Federal and
state law to receive such hazardous substance or pollutant or
contaminant and is in compliance with such applicable Federal
and state law. Such substance or pollutant or contaminant may
be transferred to a land disposal facility permitted under
Subtitle C of the Solid Waste Disposal Act only if the
President determines that both of the following requirements
are met--
``(A) The unit to which the hazardous substance or
pollutant or contaminant is transferred is not releasing any
hazardous waste, or constituent thereof, into the groundwater
or surface water or soil.
``(B) All such releases from other units at the facility
are being controlled by a corrective action program approved
by the Administrator under subtitle C of the Solid Waste
Disposal Act.
The President shall notify the owner or operator of such
facility of determinations made under this paragraph.''; and
(6) striking paragraph (4).
(c) Section 121(e) of the Act (42 U.S.C. 9621(e)) is
amended by--
(1) in paragraph (1) inserting in the first sentence ``or
permit application'' before ``shall be required''; and by
adding at the end thereof the following: ``Furthermore, no
Federal, State or local permit or permit application shall be
required for on-site or off-site activities conducted under
section 311(b).''; and
(2) striking paragraph (2).
(d) Section 121(f) of the Act (42 U.S.C. 9621(f)) is
amended by adding after paragraph (3) (as amended by this
Act) the following new paragraph--
``(4) A State may enforce only those Federal or State
legally applicable standards, requirements, criterion, or
limitations to which the Administrator has determined the
remedial action is required to conform under this Act. Where
the parties agree, the consent decree may provide for
administrative enforcement. Each consent decree shall also
contain stipulated penalties for violations of the decree in
the amount not to exceed $25,000 per day. Such stipulated
penalties shall not be construed to impair or affect the
authority of the court to order compliance with the specific
terms of any such decree.''.
SEC. 505. RESPONSE AUTHORITIES.
(a) Section 104(b)(1) of the Act (42 U.S.C. Sec. 9604(b)(1)
is amended by--
(1) inserting ``actions,'' before ``studies'';
(2) striking '', to recover the costs thereof, and'' and
inserting ``or''; and
(3) striking the ``.'' after ``Act'' and inserting ``and
shall be entitled to recover the costs thereof.''.
(b) Section 104(j) of the Act (42 U.S.C. Sec. 9604(j)) is
amended by--
(1) in paragraph (1) by striking ``remedial'', and
inserting ``response'';
(2) striking paragraph (2);
(3) redesignating paragraph (3) as paragraph ``(2)'' and
striking ``estate'' and inserting ``property''; and
(4) by inserting after paragraph (2) (as redesignated by
this Act) the following new paragraph--
``(4) Disposal authority.--The President is authorized to
dispose of any interest in real property acquired for use by
the Administrator under this subsection by sale, exchange,
donation or otherwise and any such interest in real property
shall not be subject to any of the provisions of Section 120
except the notice provisions of Section 120(h)(1). Any moneys
received by the President pursuant to this subparagraph shall
be deposited in the Fund.''.
SEC. 506. REMOVAL ACTIONS.
(a) Section 104(c)(1) of the Act is amended in subparagraph
(C) as follows--
(1) strike ``$2,000,000'' and insert ``$6,000,000'';
(2) strike ``12 months'' and insert ``three years''; and
(3) strike ``consistent with the remedial action to be
taken'' and insert ``not inconsistent with any remedial
action that has been selected or is anticipated at the time
of the removal action.'';
(b) Section 117 of the Act is amended by adding after
subsection (k) (as added by this Act) the following new
subsection--
``(l) Removal Actions.--Whenever the planning period for a
removal action is expected to be greater than six months, the
Administrator shall provide the community with notice of the
anticipated removal action and a public comment period of no
less than thirty days.''.
SEC. 507. TRANSITION.
The provisions of this title shall become effective on the
date of enactment of this Act and shall apply to all response
actions for which a Record of Decision or other decision
document is signed after the date of enactment of the Act.
TITLE VI--MISCELLANEOUS
SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNERSHIP AND MIXED
RESPONSIBILITY FACILITIES.
Section 120(e) of the Act (42 U.S.C. 9620(e)) is amended
by--
(a) inserting after paragraph (3) the following new
paragraph--
``(4) A provision allowing for the participation of other
responsible parties in the response action.; and
(b) insection after paragraph (6) the following new
paragraphs--
``(7) Exception to Required Action.--No department, agency,
and instrumentality of the United States that owns or
operates a facility over which the department, agency, or
instrumentality exercised no regulatory or other control over
activities that directly or indirectly resulted in a release
or threat of a release of a hazardous substance shall be
subject to the requirements of paragraphs (1) through (6)
except (5)(F) and (G) of this subsection if the department,
agency, or instrumentality demonstrates to the satisfaction
of the Administrator that--
``(A) no department, agency, or instrumentality was the
primary or sole source or cause of a release or threat of
release of a hazardous substance at the facility;
``(B) the activities either directly or indirectly
resulting in a release or threat of release of a hazardous
substance at the facility were pursuant to a statutory
authority and occurred prior to 1976; and
``(C) the person or persons primarily or solely responsible
for such release or threat of release are financially viable,
and capable of performing or financing the response action at
the facility.
In the event the above conditions are not met, the applicable
terms of section 120(e) apply to the department, agency, or
instrumentality of the United States at the facility. Upon
determination by the Administrator that a department, agency,
or instrumentality qualifies for the exception provided by
this paragraph, the head of such department, agency, or
instrumentality may exercise enforcement authority pursuant
under section 106 (in addition to any other delegated
authorities). To the extent a person who has been issued an
order under the authority of this paragraph seeks
reimbursement under the provisions of section 106, the
relevant department, agency, or instrumentality, and not the
Fund, shall be the source of any appropriate reimbursement.
If the Administrator determines that the relevant department,
agency, or instrumentality has failed to seek the performance
of response actions by responsible parties within 12 months
after the facility has been listed on the National Priorities
List, the Administrator may void the exception provided by
this paragraph and the applicable provisions or section
120(e) would apply to the department, agency or
instrumentality at the facility.
SEC. 602. TRANSFERS OF UNCONTAMINATED PROPERTY.
Section 120(h)(4)(A) of the Act (42 U.S.C. 9620(h)(4)(A))
is amended by striking the words ``stored for one year or
more,''.
SEC. 603. AGREEMENTS TO TRANSFER BY DEED.
Section 120(h) of the Act (42 U.S.C. 9620(h)) is amended by
adding after paragraph (5) the following new paragraph:
``(6) Agreements to Transfer by Deed.--Nothing in this
subsection shall be construed to prohibit the head of the
department, agency, or instrumentality of the United States
from entering into an agreement to transfer by deed real
property or facilities prior to the entering of such deed.''.
SEC. 604. ALTERNATIVE OR INNOVATIVE TREATMENT TECHNOLOGIES.
Section 111(a) of the Act of 1980 is amended by adding
after paragraph (6) the following new paragraph (6) the
following new paragraph--
``(7) Alternative or Innovative Treatment Technologies.--
``(A) When a party potentially liable under this Act
undertakes a response action pursuant to an administrative
order or consent decree, and employs an alternative or
innovative technology that fails to achieve a level of
response required under this Act, the Administrator may use
the Fund to reimburse no more than fifty percent of response
costs incurred by the potentially liable party in taking
other actions approved by the Administrator to achieve these
required levels of response. The Administrator shall issue
guidance on the procedures and criteria to be used in
determining whether a remedial technology constitutes an
alternative or innovative technology for purposes of this
subsection, and the appropriate level of funding for
response activities that are necessary to achieve a level
of response required under this Act. The Administrator
shall review and update such guidance, as appropriate.''.
SEC. 605. DEFINITIONS.
Section 101 of the Act (42 U.S.C. 9601)) is amended by--
(a) in paragraph (1) striking the ``.'' after ``Act'' and
inserting ``and includes the cost of enforcement activities
related thereto.'';
(b) in paragraph (10)(H) striking ``subject to'' and
inserting ``in compliance with'';.
(c) in paragraph (14)) inserting after ``Congress'' the
phrase '', unless such waste contains a substance that is
listed under any other subparagraph of this paragraph'';
(d) in paragraph (20) by--
(1) in subparagraph (A) inserting after ``similar means
to'' the phrase ``the United States (or any department,
agency, or instrumentality thereof), or'';
(2) in subparagraph (D) by inserting--
(A) after ``does not include'' the phrase ``the United
States (or any department, agency, or instrumentality
thereof), or''; and,
(B) before ``any State'' the phrase ``any department,
agency, or instrumentality of the United States, or''; and
(3) in subparagraph (D) by striking ``a'' after ``such''
and inserting ``department, agency, or instrumentality of the
United States, or'';
(4) by adding after subparagraph (D) the following new
subparagraphs--
``(E) The term ``owner or operator'' shall include a trust
or estate, but does not include a person who holds title to a
vessel or facility solely in the capacity as a fiduciary,
provided that such person--
``(i) does not participate in the management of a vessel or
facility operations that result in a release or threat of
release of hazardous substances; and
``(ii) complies with such other requirements as the
Administrator may set forth by regulation.
``(F) The term ``owner or operator'' shall not include the
United States or any department, agency or instrumentality of
the United States or a conservator or receiver
appointed by a department, agency or
instrumentality of the United States, which acquired
ownership or control of a vessel or facility (or any right or
interest therein)--
(i) in connection with the exercise of receivership or
conservatorship authority or the liquidation or winding up of
the affairs of any entity subject to a receivership or
conservatorship, including any subsidiary thereof; or
(ii) in connection with the exercise of any seizure or
forfeiture authority; or
(iii) pursuant to an act of Congress specifying the
property to be acquired,
provided, that the United States, or conservator or receiver
appointed by the United States does not participate in the
management of the vessel or facility operations that result
in a release or threat of release of hazardous substances and
complies with such other requirements as the Administrator
may set forth by regulation.'';
(e) in paragraph (23) adding at the end of the paragraph
the following--``The terms `remove' or `removal' are not
limited to emergency situations and include actions to
address future or potential exposures and, provided such
actions are consistent with the requirements of this Act,
actions obviating the need for a remedial action.'';
(f) in paragraph (25) striking ``related thereto'', and
inserting ``and oversight activities related thereto when
such activities are undertaken by the President.'';
(g) in paragraph (29) striking the ``.'' after ``Act'' and
inserting '', except that the term ``hazardous substance''
shall be substituted for the term ``hazardous waste'' in the
definitions of ``disposal'' and ``treatment.'';
(h) in paragraph (33) striking ''; except that the'', and
inserting ``. The'';
(i) adding after paragraph (38) the following new
paragraphs--
``(39) Bona fide prospective purchaser.--The term ``bona
fide prospective purchaser'' means a person who acquires
ownership of a facility after enactment of this provision,
and who can establish by a preponderance of the evidence
that--
``(A) all active disposal of hazardous substances at the
facility occurred before that person acquired the facility;
``(B) the person conducted a site audit of the facility in
accordance with commercially reasonably and generally
accepted standards and practices. The Administrator shall
have authority to develop standards by guidance or
regulation, or to designate standards promulgated or
developed by others, that satisfy this subparagraph. In the
case of property for residential or other similar use, a site
inspection and title search that reveal no basis for further
investigation satisfy the requirements of this subparagraph;
``(C) the person provided all legally required notices with
respect to the discovery or release of any hazardous
substances at the facility;
``(D) the person exercised due care with respect to
hazardous substances found at the facility and took
reasonably necessary steps to address any release or threat
of release of hazardous substances and to protect human
health and the environment. The requirements of due care and
reasonably necessary steps with respect to hazardous
substances discovered at the facility shall be conclusively
established where the person successfully completes a
response action pursuant to a State voluntary response
program, as defined in section 127 of this title; and
``(E) the person provides full cooperation, assistance, and
facility access to those responsible for response actions at
the facility, including the cooperation and access necessary
for the installation, integrity, operation, and maintenance
of any complete or partial response action at the facility;
and
``(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 relationship other than that created
by the instruments by which title to the facility is conveyed
or financed.
``(40) Fiduciary.--
``(A) Except as provided in subparagraph (B), the term
``fiduciary'' means a person who owns or controls property--
``(i) as a fiduciary within the meaning of section 3(31) of
the Employee Retirement Income Security Act of 1974, or as a
trustee, executor, administrator, custodian, guardian,
conservator, or receiver acting for the exclusive benefit of
another person; and
``(ii) who has not previously owned or operated the
property in a non-fiduciary capacity.
``(B) The term `fiduciary' does not include any person
described in subparagraph (A)--
``(i) who acquires ownership or control of property to
avoid the liability of such person or any other person under
this Act; or
``(ii) who owns or controls property on behalf of or for
the benefit of a holder of a security interest.
``(41) Municipal solid waste.--The term `municipal solid
waste' means all waste materials generated by households,
including single and multi-family residences, and hotels and
motels. The term also includes waste materials generated by
commercial, institutional, and industrial sources, to the
extent such wastes (A) are essentially the same as waste
normally generated by households or (B) were collected and
disposed of with other municipal solid waste or sewage sludge
as part of normal municipal solid waste collection services,
and, regardless of when generated, would be considered
conditionally exempt small quantity generator waste under
section 3001(d) of the Solid Waste Disposal Act (42 U.S.C.
6921(d)). Examples of municipal solid waste include food and
yard waste, paper, clothing, appliances, consumer product
packaging, disposable diapers, office supplies, cosmetics,
glass and metal food containers, elementary or secondary
school science laboratory waste, and household hazardous
waste (such as painting, cleaning, gardening, and automotive
supplies). The term `municipal solid waste' does not include
combustion ash generated by resource recovery facilities or
municipal incinerators, or waste from manufacturing or
processing (including pollution control) operations not
essentially the same as waste normally generated by
households.
``(42) Municipality.--The term ``municipality'' means a
political subdivision of a State, including cities, counties,
villages, towns, townships, boroughs, parishes, school
districts, sanitation districts, water districts, and other
public entities performing local governmental functions. The
term also includes a natural person acting in the capacity of
an official, employee, or agent of a municipality in the
performance of governmental functions.
``(43) Qualified household hazardous waste collection
program.--The term ``qualified household hazardous waste
collection program'' means a program established by an entity
of the federal government, a state, municipality, or Indian
tribe that provides, at a minimum, for semiannual collection
of household hazardous wastes at accessible, well-publicized
collection points within the relevant jurisdiction.
``(44) Sewage sludge.--The term ``sewage sludge'' means
solid, semisolid, or liquid residue removed during the
treatment of municipal waste water, domestic sewage, or other
waste water at or by publicly-owned or federally-owned
treatment works.
``(45) Site characterization.--The term ``site
characterization'' means an investigation that determines the
nature and extent of a release or potential release of a
hazardous substance, pollutant or contaminant, and that
includes an on-site evaluation and sufficient testing,
sampling and other field data gathering activities to
analyze whether there has been a release or threat of a
release of a hazardous substance, pollutant or
contaminant, and the health and environmental risks posed
by such a release or threat of release. The investigation
also may include review of existing information (available
at the time of the review), an off-site evaluation, or
other measures as the Administrator deems appropriate.
``(46) Volutnary response.--The term ``voluntary response''
means a response action--
``(A) undertaken and financed by a current owner or
prospective purchaser under a voluntary response program; and
``(B) with respect to which the current owner or
prospective purchaser agrees to pay all State oversight
costs.''.
SEC. 606. CONFORMING AMENDMENT.
Section 126(a) of the Act (42 U.S.C. 9626(a)) is amended by
adding, after ``section 104(i) (regarding health
authorities,'' the phrase ``section 127 (regarding State
authority), section 120 (regarding voluntary response
actions),''.
TITLE VII--FUNDING
SEC. 701. AUTHORIZATION OF APPROPRIATIONS.
Sec. 111(a) of the Act is amended by striking
``$8,500,000,000 for the 5-year period beginning on October
17, 1986, and not more than $5,100,000,000 for the period
commencing October 1, 1991, and ending September 30, 1994''
and inserting ``$9,600,000,000 for the period commencing
October 1, 1994 and ending September 30, 1999''.
SEC. 702. ORPHAN SHARE FUNDING.
Section 111(a) is amended by adding after paragraph (7) (as
added by this Act) the following new paragraph--
``(8) Orphan share funding.--Payment of orphan shares
pursuant to section 122a(e) of this Act.''.
SEC. 703. AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY.
Sec. 111(m) of the Act is amended to read as follows--
``(m) There shall be directly available to the Agency for
Toxic Substances and Disease Registry to be used for the
purpose of carrying out activities described in subsection
(c)(4) of this section and section 104(i) of this Act not
less than $80,000,000 per fiscal year for each of fiscal
years 1995, 1996, 1997, 1998, and 1999. Any funds so made
available which are not obligated by the end of the fiscal
year in which made available shall be returned to the
Fund.
SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT, AND
DEMONSTRATION PROGRAMS.
Sec. 11(n) of the Act is amended to read as follows--
``(1) section 311(B).--For each of the fiscal years 1995,
1996, 1997, 1998, and 1999, not more than $20,000,000 of the
amounts available in the Fund may be used for the purposes of
carrying out the applied research, development, and
demonstration program for alternative or innovative
technologies and training program authorized under section
311(b) of this title (relating to research, development,
demonstration) other than basic research. Such amounts shall
remain available until expended.
``(2) Section 311(a).--From the amounts available in the
Fund, not more than the following amounts may be used for the
purposes of section 311(a) of this title (relating to
hazardous substance research, demonstration, and training
activities)--
(A) for fiscal year 1995 $40,000,000,
(B) for fiscal year 1996 $50,000,000,
(C) for fiscal year 1997 $55,000,000,
(D) for fiscal year 1998 $55,000,000,
(E) for fiscal year 1998 $55,000,000.
No more than 10 percent of such amounts shall be used for
training under section 311(a) of this title for any fiscal
year.
``(3) Section 311(d).--For each of the fiscal years 1995,
1996, 1997, 1998, and 1999, not more than $5,000,000 of the
amounts available in the Fund may be used for the purposes of
section 311(d) of this title (relating to university
hazardous substance research centers).''.
SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM GENERAL
REVENUES.
Section 111(p)(1) of the Act is amended to read as
follows--
``(1) In general.--The following sums are authorized to be
appropriated, out of any money in the Treasury not otherwise
appropriated, to the Hazardous Substance Superfund:
``(A) for fiscal year 1995 $250,000,000,
``(B) for fiscal year 1996 $250,000,000,
``(C) for fiscal year 1997 $250,000,000,
``(D) for fiscal year 1998 $250,000,000,
``(E) for fiscal year 1999 $250,000,000.
In addition there is authorized to be appropriated to the
Hazardous Substance Superfund for each fiscal year an amount
equal to so much of the aggregate amount authorized to be
appropriated under this subsection (and paragraph (2) of
section 131(b) of this title) as has not been appropriated
before the beginning of the fiscal year involved.''
SEC. 706. ADDITIONAL LIMITATIONS.
Section 111 of the Act is amended by adding after
subsection (p) the following new subsections--
``(q) Alternative or Innovative Treatment Technologies.--
For each of the fiscal years 1995, 1996, 1997, 1998, and
1999, not more than $40,000,000 of the amounts available in
the Fund may be used for the purposes of subsection (a)(7) of
this section (relating to alternative or innovative treatment
technologies).
``(r) Citizen Information and Access Offices.--For each of
the fiscal years 1995, 1996, 1997, 1998, and 1999, not more
than $50,000,000 of the amounts available in the Fund may be
used for the purposes of section 117(j) of this Act (relating
to citizen information and access offices).
``(s) Multiple Sources of Risk Demonstration Projects.--For
the period commencing October 1, 1994 and ending September
30, 1999, not more than $30,000,000 of the amounts available
in the Fund may be used for the purposes of section 117(k) of
this Act (relating to multiple sources of risk demonstration
projects).''.
TITLE VIII--ENVIRONMENTAL INSURANCE RESOLUTION FUND
SEC. 801. SHORT TITLE.
This title may be cited as the ``Environmental Insurance
Resolution and Equity Act of 1994''.
SEC. 802. ENVIRONMENTAL INSURANCE RESOLUTION FUND.
(a) Environmental Insurance Resolution Fund Established.--
There is hereby established the Environmental Insurance
Resolution Fund (hereinafter referred to as the ``Resolution
Fund'').
(b) Offices.--The principal office of the Resolution Fund
shall be in the District of Columbia or at such other place
as the Resolution Fund may from time to time prescribe.
(c) Status of Resolution Fund.--Except as expressly
provided in this title, the Resolution Fund shall not be
considered an agency or establishment of the United States.
The members of the Board of Trustees shall not, by reason of
such membership, be deemed to be officers or employees of the
United States.
(d) Board of Trustees.--
(1) In general.--The Resolution Fund shall be administered
by a Board of Trustees (Board).
(2) Membership.--The board shall consist of----
(A) Governmental members.--
(i) The Administrator of the Environmental Protection
Agency.
(ii) The Attorney General of the United States.
(B) Public members.--Five public members appointed by the
President not later than 60 days after the date of enactment
of this title, not less than two of whom shall represent
insurers subject section __ of the Internal Revenue Code of
1986, and not less than two of whom shall represent eligible
persons defined in subsection (g)(2)(A). The public members
shall be citizens of the United States.
(C) Ex-officio member.--The Secretary of the Treasury shall
serve as an ex officio member of the Board.
(3) Chair.--The Chair of the Board shall be designated by
the President from time to time from among the members
described in paragraph (2)(A). No expenditure may be made, or
other action taken, by the Resolution Fund without the
concurrence of the Chair of the Board.
(4) Compensation.--Governmental members of the Board shall
serve without additional compensation. Public members of the
Board shall, while attending meetings of the Board or while
engaged in duties related to such meetings or other
activities of the Board pursuant to this title, be entitled
to receive compensation at the rate of $200 per day,
including travel time. While away from their homes or regular
places of business, members of the Board shall be allowed
travel and actual, reasonable and necessary expenses to the
same extent as officers of the United States.
(5) Term of public members.--Public members of the Board
shall serve for a term of 5 years, except that such members
may be removed by the President for any reason at any time. A
public member whose term has expired may continue to serve on
the Board until such time as the President appoints a
successor. The President may reappoint a public member of the
Board, but no such member may consecutively serve more than
two terms.
(6) Vacancies.--A vacancy on the Board shall be filled in
the same manner as the original appointment, except that such
appointment shall be for the balance of the unexpired term of
the vacant position.
(7) Quorum.--Four members of the Board shall constitute a
quorum for the conduct of business.
(8) Meetings.--The Board shall meet not less than quarterly
at the call of the Chair. Meetings of the Board shall be open
to the public unless the Board, by a majority vote of members
present in open session, determines that it is necessary or
appropriate to close a meeting. The Chair shall provide at
least 10 days notice of a meeting by publishing a notice in
the Federal Register and such notice shall indicate whether
it is expected that the Board will consider closing all or a
portion of the meeting. Nothing in this paragraph shall be
construed to apply to informal discussions or meetings among
Board members.
(e) Officers and Employees.--
(1) Chief executive officer; chief financial officer.--
(A) The Resolution Fund shall have a Chief Executive
Officer appointed by the Board who shall exercise any
authority of the Resolution Fund under such terms and
conditions as the Board may prescribe.
(B) The Resolution Fund shall have a Chief Financial
Officer appointed by the Board.
(2) Compensation.--No officer or employee of the Resolution
Fund may be compensated by the Resolution Fund at an annual
rate of pay which exceeds the rate of basic pay in effect
from time to time for level I of the Executive Schedule under
section 5312 of title 5, United States Code. No officer or
employee of the Resolution Fund, other than a member of the
Board, may receive any salary or other compensation from any
source other than the Resolution Fund for services rendered
during the period of employment by the Resolution Fund.
(3) Political test or qualification.--No political test or
qualification shall be used in selecting, appointing,
promoting, or taking other personnel actions with respect to
officers, agents, and employees of the Resolution Fund.
(4) Assistance by federal agencies.--The Attorney General,
the Secretary of the Treasury, and the Administrator of the
Environmental Protection Agency, may to the extent
practicable and feasible, and in their sole discretion, make
personnel and other resources available to the Resolution
Fund. Such personnel and resources may be provided on a
reimbursable basis, and any personnel so provided shall not
be considered employees of the Resolution Fund for purposes
of paragraph (2).
(f) Powers of Resolution Fund.--Notwithstanding any other
provision of law, except as provided in this title or as may
be hereafter enacted by the Congress expressly in limitation
of the provisions of this paragraph, the Resolution Fund
shall have power--
(1) to have succession until dissolved by Act of Congress;
(2) to make and enforce such bylaws, rules and regulations
as may be necessary or appropriate to carry out the purposes
of this title;
(3) to make and perform contracts, agreements, and
commitments;
(4) to settle, adjust, and compromise, and with or without
consideration or benefit to the Resolution Fund release or
waive in whole or in part, in advance or otherwise, any
claim, demand, or right of, by, or against the Resolution
Fund;
(5) to sue and be sued, complain and defend, in any State,
Federal or other court;
(6) to determine its necessary expenditures and the manner
in which the same shall be incurred, allowed, and paid, and
appoint, employ, and fix and provide for the duties,
compensation and benefits of officers, employees, attorneys,
and agents, all of whom shall serve at the pleasure of the
Board;
(7) to invest funds, through the Secretary of the Treasury,
in interest bearing securities of the United States suitable
to the needs of the Resolution Fund; provided, that interest
earned on such investments shall be retained by the
Resolution Fund and used consistent with the purposes of this
title;
(8) to hire or accept the voluntary services of
consultants, experts, advisory boards, and panels to aid the
Resolution Fund in carrying out the purposes of this title;
and
(9) to take such other actions as may be necessary to carry
out the responsibilities of the Resolution Fund under this
title. Nothing in this subsection or any other provision
of this title shall be construed to permit the Resolution
Fund to issue any evidence of indebtedness or otherwise
borrow money.
(g) Resolution of Disputes Between Insureds and Insurers.
(1) In general.--The Resolution Fund shall offer a
comprehensive resolution described in this subsection with
respect to all eligible costs of an eligible person at
eligible sites.
(2) Definitions.--
(A) Eligible person.--For purposes of this subsection, the
term ``eligible person'' means any individual, firm,
corporation, association, partnership, consortium, joint
venture, commercial entity or governmental unit (including
any predecessor in interest or any subsidiary thereof) that
satisfies the following criteria:
(i) Status as potentially responsible party.--An eligible
person--
(I) shall have been named at any time as a potentially
responsible party pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act with respect to an
eligible site on the National Priority List in connection
with a hazardous substance that was disposed of on or before
December 31, 1985; or
(II) is or was liable, or alleged to be liable, at any time
for removal (as defined in section 101(23) of the
Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. 9601(23)) at any eligible site in
connection with a hazardous substance that was disposed of on
or before December 31, 1985.
(ii) Insurance coverage.--An eligible person shall have
demonstrated, to the satisfaction of the Resolution Fund,
that such person had entered into a valid contract for
comprehensive general liability (including broad form
liability, general liability, commercial general liability,
and excess or umbrella coverage) or commercial multi-peril
(including broad form property, commercial package, special
multi-peril, and excess or umbrella coverage) insurance
coverage----
(I) for any seven years in any consecutive 14 year period
prior to January 1, 1986; or
(II) in the case of a person that has been in existence for
less than 14 years prior to January 1, 1986, for at least
one-half of such years of existence.
For purposes of this clause, a valid contract for insurance
shall not include any contract for insurance with respect to
which a person has entered into a settlement with an insurer
providing, or where a judgment has provided, that the
contract has been satisfied and that such person has no right
to make any further claims under such contract.
(B) Eligible costs.--
(i) In general.--For purposes of this subsection, the term
``eligible costs'' means costs described in clause (ii) or
(iii) incurred with respect to a hazardous substance that was
disposed of on or before December 31, 1985--
(I) for which an eligible person has not been reimbursed;
or
(II) for which an eligible person has been reimbursed and
that are the subject of a dispute between the eligible person
and an insurer.
(ii) NPL SITES.--With respect to an eligible site described
in subparagraph (C)(i), eligible costs means costs described
in clause (i)--
(I) of response (as defined in section 101(25) of the
Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. 9601(25));
(II) for natural resources damages; or
(III) to defend potential liability
(including, but not limited to, attorney's fees, costs of
suit, consultant and expert fees and costs, and expenses for
testing and monitoring)
(iii) Non-npl sites.--With respect to an eligible site
described in subparagraph (C)(ii), eligible costs means costs
described in clause (i)--
(I) of removal (as defined in section 101(23) of the
Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. 9601(23)); or
(II) to defend potential liability (including, but not
limited to, attorney's fees, costs of suit, consultant and
expert fees and costs, and expenses for testing and
monitoring).
(iv) Limit on eligible costs.--
(I) Except as provided in subclause (II), the eligible
costs of an eligible person may not exceed--
(aa) $15,000,000 in the case of an eligible person that has
demonstrated insurance coverage pursuant to subparagraph
(A)(ii)(I); or
(bb) an amount equal to one-seventh of $15,000,000 for each
year of insurance coverage, in the case of an eligible person
that has demonstrated insurance coverage pursuant to
subparagraph (A)(ii)(II).
(II) The limitation on eligible costs provided in subclause
(I) shall not apply to an eligible person that, when filing a
request for a resolution offer with the Resolution Fund,
presents evidence to the satisfaction of the Resolution Fund
that the limits on valid contracts of insurance (including
per occurence, aggre- gate, primary, excess or other limits)
of such eligible person prior to January 1, 1986,
cumulatively exceed the amount determined pursuant to
subclause (I) without reference to any time period. For
purposes of this clause, a valid contract for insurance
shall not include any contract for insurance with respect
to which an eligible person has entered into a settlement
with an insurer providing, or where a judgment has
provided, that the contract has been satisfied and that
such eligible person has no right to make any further
claims under such contract.
(C) Eligible site.--For purposes of this subsection, the
term ``eligible site'' means--
(i) any site or facility placed on the National Priority
List at any time, at which a hazardous substance was disposed
of on or before December 31, 1985; or
(ii) any site or facility subject to a removal (as defined
in section 101(23) of the Act (42 U.S.C. 9601(23)) conducted
pursuant to such Act at any time, at which a hazardous
substance was disposed of on or before December 31, 1985.
For purposes of this subparagraph, the term ``facility''
shall have the same meaning as provided in section 101(9) of
the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. 9601(9)).
(D) State.--For purposes of this subsection, the term
``State'' shall have the same meaning as provided in section
101(27) of the Comprehensive Environmental Re-sponse,
Compensation and Liability Act (42 U.S.C. 9601(27)).
(3) Resolution offers.--
(A) In general.--The Resolution Fund shall offer one
comprehensive resolution to each eligible person. The offer
shall--
(i) be for a percentage of all of the eligible costs of
such eligible person incurred in connection with all eligible
sites, determined pursuant to paragraph (4); and
(ii) state the limitation on eligible costs, if any,
applicable to the eligible person pursuant to paragraph
(2)(B)(ii).
(B) Request for resolution offers.--An eligible person
shall file a request for resolution from the Resolution Fund
in such form and manner as the Resolution Fund shall
prescribe. No such request shall be deemed received by the
Resolution Fund where before the date final regulations
concerning State percentage categories are published in the
Federal Register pursuant to paragraph (4)(B)(iii). The
Resolution Fund shall make an offer of resolution, determined
pursuant to paragraph (4), to each eligible person that has
filed a request for an offer of resolution not later than 180
days after the receipt of a complete request as determined by
the Resolution Fund.
(C) Review of resolution offers.--No resolution offer made
by the Resolution Fund shall be subject to review by any
court.
(4) Determination of resolution offers.--
(A) In general.--The Resolution Fund shall determine a
resolution offer--
(i) in the case of an eligible person that has established
only one State litigation venue pursuant to subparagraph (C),
by applying the State percentage determined pursuant to
subparagraph (B)(iii) to the established State litigation
venue;
(ii) in the case of an eligible person that has established
two or more State litigation venues pursuant to subparagraph
(C), each site with respect to which a State litigation venue
has been established shall be accorded equal value and the
applicable percentage shall be the weighted average of all
established State litigation venues; or
(iii) in the case of an eligible person that has not
established any State litigation venue pursuant to
subparagraph (C)--
(I) if the eligible person has potential liability in
connection with only one hazardous waste site, by applying
the State percentage determined pursuant to subparagraph
(B)(iii) to the State in which the site is located; or
(II) if the eligible person has potential liability in
connection with more than one hazardous waste site, each site
shall be accorded equal value and the applicable percentage
shall be the weighted average of all States in which the
sites are located.
(B) State percentage.--
(i) In general.--The Congress finds that as of January 1,
1994, State law generally is more favorable to eligible
persons that pursue claims concerning eligible costs against
insurers in some States, that State law generally is more
favorable to insurers with respect to such claims in some
States, and that in some States the law generally favors
neither insurers nor eligible persons with respect to such
claims or that there is insufficient information to determine
whether such law generally favors insurers or eligible
persons with respect to such claims. The Congress further
finds that considerations of equity and fairness require that
resolution offers made by the Resolution Fund must vary to
reflect the relative state of the law among the several
States.
(ii) Proposed regulations.--The Resolution Fund shall
examine the law in each State as of January 1, 1994. Not
later than 120 days after the date of enactment of this
title, the Resolution Fund shall publish in the Federal
Register a notice of proposed rulemaking soliciting public
comment for 60 days and classifying States into the following
percentage categories:
(I) 20 percent, in the case of the ten States in which the
Resolution Fund determines that State law generally is
most favorable to insurers relative to the other States;
(II) 60 percent, in the case of the ten States in which the
Resolution Fund determines that State law generally is most
favorable to eligible persons relative to the other States;
and
(III) 40 percent, in the case of all other States.
(iii) Final regulations.--
(I) Not later than 60 days after the close of the public
comment period, the Resolution Fund shall publish in the
Federal Register final regulations providing State
classifications.
(II) The State classifications provided in the final rule
shall govern all resolution offers made by the Resolution
Fund and shall not be subject to amendment by the Resolution
Fund.
(III) Notwithstanding any other provision of law, the final
regulations promulgated by the Resolution Fund pursuant to
this clause shall not be subject to review by any court.
(C) Litigation venue.--For purposes of this subsection,
litigation venue is considered established with respect to an
eligible person if--
(i) on or before December 31, 1993, the eligible person had
pending in a court of competent jurisdiction a complaint or
cross complaint against an insurer with respect to eligible
costs at an eligible site; and
(ii) no motion to change venue with respect to such
complaint was pending on or before January 31, 1994.
(5) Acceptance or rejection of resolution offer.--
(A) In general.--
(i) An eligible person may, when submitting a request for a
resolution to the Resolution Fund, make a written irrevocable
election to accept any resolution to be made by the
Resolution Fund.
(ii) An eligible person that does not make an election
pursuant to clause (i) shall, within 60 days of the receipt
of a resolution offer from the Resolution Fund, notify the
Resolution Fund in writing of its irrevocable acceptance or
rejection of such offer. An eligible person who does not so
accept or reject a resolution offer within 60 days shall be
deemed to have made an irrevocable election to reject the
offer and the provisions of subparagraph (C) shall apply.
(B) Resolution offer accepted.--An eligible person that
accepts a resolution offered by the Resolution Fund shall be
subject to the provisions of this paragraph.
(i) Waiver of insurance claims.--The Resolution Fund shall
not make payments to an eligible person unless the eligible
person agrees in writing, subject to reinstatement described
in clause (ii)--
(I) to waive any existing and future claims against any
insurer for eligible costs; and
(II) to stay or dismiss each claim pending against an
insurer for eligible costs.
(ii) Reinstatement of insurance claims.--
(I) If the Resolution Fund fails to timely fulfill its
obligations to an eligible person under the terms of an
accepted resolution offer, such eligible person shall be
entitled to reinstate any claim under a contract for
insurance with respect to eligible costs.
(II) Statute of limitation tolled.--Notwithstanding any
other provision of Federal or State law, any Federal or State
statute of limitation concerning the filing or prosecution of
an action by an eligible person against an insurer, or by an
insurer against an eligible person, with respect to eligible
costs shall be tolled during the pendency of the stay of
pending litigation established by section 804(a).
(iii) Payment of resolution offers.--
(I) Pre-resolution costs.--The Resolution Fund shall make
equal annual payments over a period of eight years for
eligible costs incurred by an eligible person on or before
the date such person accepts a resolution offer pursuant to
subparagraph (A)(i) or (ii), and interest shall not accrue
with respect to such eligible costs. The Resolution Fund may,
in its sole discretion, make such payments over a shorter
period if the aggregate eligible costs do not exceed $50,000.
An eligible person shall submit to the Resolution Fund
documentation of such costs as the Resolution Fund may
require. The initial payment to an eligible person under this
subclause shall be made not later than 60 days after the
receipt of documentation satisfactory to the Resolution Fund.
(II) Post-resolution costs.--The Resolution Fund shall make
payments for eligible costs incurred by an eligible person
after the date such person accepts a resolution offer
pursuant to subparagraph (A)(i) or (ii) to the eligible
person, or to a contractor or other person designated by the
eligible person, subject to such documentation as the
Resolution Fund may require. Payments under this subclause
shall be made not later than 60 days after the receipt of
documentation satisfactory to the Resolution Fund.
(III) Adjustment for deductible or self insurance.--In the
case of an eligible person that has submitted to the
Resolution Fund, as proof of status as an eligible person, a
contract for insurance described in paragraph (2)(A)(ii) that
is subject to a self-insured retention or a deductible,
payment to such eligible person pursuant to a resolution
shall be reduced by the amount of such self-insured
retention or deductible, except that such reduction shall
not exceed the amount of one self-insured retention or one
deductible that the eligible person would have been
required to pay with respect to one claim for eligible
costs under the terms of the contracts for insurance
submitted. In the event that the eligible person submitted
more than one contract for insurance, any such reduction
shall be made with respect to the lowest of the amounts of
self-insured retentions and deductibles.
(IV) Adjustment for certain duty-to-defend costs.--If an
insurer has incurred and paid costs pursuant to a duty-to-
defend clause contained in a contract for insurance described
in paragraph (2)(B), and such costs are the subject of a
dispute between the eligible person and an insurer, the
payment of a resolution to an eligible person shall be
reduced by such amount, and the Resolution Fund shall pay
such amount to the insurer. If such cost were paid by the
insurer on or before the date the eligible person accepted a
resolution offer made by the Resolution Fund, payment to an
insurer under this subclause shall be made in equal annual
installments over a period of eight years, and interest shall
not accrue with respect to such costs. The Resolution Fund
may, in its sole discretion, make such payments over a
shorter period if the aggregate costs do not exceed $50,000.
(C) Resolution offer rejected; litigation of insurance
claims.--
(i) Admissibility of resolution offer.--No resolution
offered by the Resolution Fund shall be admissible in any
legal action by an eligible person against an insurer or by
an insurer against an eligible person.
(ii) Insurer action against eligible person.--Any eligible
person that rejects a resolution offer, litigates a claim
with respect to eligible costs against an insurer, and
obtains a final judgment that is less favorable than the
resolution offered by the Resolution Fund, shall be liable to
such insurer for 20 percent of the reasonable costs and legal
fees incurred by the insurer in connection with such
litigation after the resolution was offered to the eligible
person. The district courts of the United States shall have
original jurisdiction of all such actions, without regard to
amount or value. The court shall reduce any award to an
insurer in any such action by the amount, if any, of such
costs and legal fees recovered by the insurer pursuant to
State law or court rule. Nothing in this clause shall be
construed to limit or affect in any way the application of
State law, or the rule of any court, to such costs or legal
fees.
(iii) Reimbursement to insurer.--In the case of an eligible
person that rejects a resolution offer, litigates a claim
with respect to eligible costs against one or more insurers,
and obtains a final judgment against any such insurer, the
Resolution Fund--
(I) shall reimburse to such insurer or insurers the lesser
of the amount of the resolution offer made to the eligible
person or the final judgment; and
(II) may, if the resolution offer exceeded the final
judgment, reimburse the insurer or insurers for unrecovered
reasonable costs and legal fees, except that the total
reimbursement under this subclause may not exceed the amount
of the resolution offer to the eligible person.
Reimbursements pursuant to this clause shall be subject to
such documentation as the Resolution Fund may require and
shall made by the Resolution Fund not later than 60 days
after receipt by the Resolution Fund of a complete request
for reimbursement as determined by the Resolution Fund.
(6) Payments considered pursuant to insurance contract.--
Payments made by the Resolution Fund pursuant to a resolution
offer shall be deemed payments made by an insurer under the
terms and conditions of a contract of insurance or in
settlement thereof. Nothing in this paragraph shall be
construed to affect in any way the issue of whether the
liability limits of a contract of insurance has been
satisfied.
(7) Resolution process not admission of liability.--No
provision of this title, and no action by an eligible person
undertaken in connection with any provision of this title
shall in any way constitute an admission of liability in
connection with the disposal of hazardous substance.
(8) Regulations.--
(A) Procedures and documentation.--Not later than 120 days
after the date of enactment of this title, the Resolution
Fund shall publish in the Federal Register for public comment
of not more than 60 days interim final regulations concerning
procedures and documentation for the submission of requests
for resolution offers and the payment of accepted resolution
offers. Not later than 60 days after the close of the public
comment period, the Resolution Fund shall publish in the
Federal Register final regulations concerning such procedures
and documentation, which may be amended by the Resolution
Fund from time to time.
(B) Other regulations.--The Resolution Fund may prescribe
such other regulations, rules and procedures as the
Resolution Fund deems appropriate from time to time.
(C) Judicial review.--No regulation, rule or procedure
prescribed by the Resolution Fund pursuant to this paragraph
shall be subject to review by any court except to the extent
such regulation, rule or procedure is not consistent with a
provision of this title.
(h) Jurisdiction of Federal Courts.--Notwithstanding
section 1349 of title 28, United States Code:
(1) The Resolution Fund shall be deemed to be an agency of
the United States for purposes of sections 1345 and 1442 of
title 28, United States Code.
(2) All civil actions to which the Resolution Fund is a
party shall be deemed to arise under the laws of the United
States, and the district courts of the United States shall
have original jurisdiction of all such actions, without
regard to amount or value.
(3) Any civil or other action, case or controversy in a
court of a State, or in any court other than a district court
of the United States, to which the Resolution Fund is a party
may at any time before the trial thereof be removed by the
Resolution Fund, without the giving of any bond or security,
to the district court of the United States for the district
and division embracing the place where the same is pending,
or, if there is no such district court, to the district court
of the United States for the district in which the principal
office of the Resolution Fund is located, by following any
procedure for removal of causes in effect at the time of such
removal.
(4) No attachment or execution shall be issued against the
Resolution Fund or any of its property before final judgment
in any State, Federal, or other court.
(i) Reports.--
(1) Annual reports.--The Resolution Fund shall report
annually to the President and the Congress not later than
January 15 of each year on its activities for the prior
fiscal year. The report shall include--
(A) A financial statement audited by an independent
auditor; and
(B) a determination of whether the fees and assessments
imposed by section of the Internal Revenue Code of 1986
will be sufficient to meet the anticipated obligations of the
Resolution Fund.
(2) Special Reports.--The Resolution Fund shall promptly
report to the President and the Congress at any time the
Resolution Fund determines that the fees and assessments
imposed by section of the Internal Revenue Code of 1986
will be insufficient to meet the anticipated obligations of
the Resolution Fund.
(j) False or Fraudulent Statements or Claims.--
(1) Criminal penalties.--
(A) For purposes of section 287 of title 18, United States
Code (relating to false claims), the Resolution Fund shall be
considered an agency of the United States and any officer or
employee of the Resolution Fund shall be considered a person
in the civil service of the United States.
(B) For purposes of section 1001 of title 18, United States
Code (relating to false statements or entries), the
Resolution Fund shall be considered an agency of the United
States.
(2) Civil penalties.--Officers and employees of the
Resolution Fund shall be considered officers and employees of
the United States for purposes of section 3729 of title 31,
United States Code (relating to false claims).
SEC. 803. FINANCIAL STATEMENTS, AUDITS, INVESTIGATIONS AND
INSPECTIONS.
(a) In General.--The financial statements of the Resolution
Fund shall be prepared in accordance with generally accepted
accounting principles and shall be audited annually by an
independent certified public accountant in accordance with
the auditing standards issued by the Comptroller General.
Such auditing standards shall be consistent with the private
sector's generally accepted auditing standards.
(b) Investigations and Other Audits.--The Inspector General
of the Environmental Protection Agency is authorized to
conduct such audits and investigations as the Inspector
General deems necessary or appropriate. For purposes of the
preceding sentence, the provisions of the Inspector General
Act of 1978 shall apply to the Resolution Fund and to the
Inspector General to the same extent as they apply to the
Environmental Protection Agency.
SEC. 804. STAY OF PENDING LITIGATION.
(a) In General.--
(1) Except as provided in this section, enactment of this
title operates as a stay, applicable to all persons other
than the United States, of the commencement or continuation,
including the issuance of employment of process or service of
any pleading, motion, or notice of any judicial,
administrative, or other action with respect to claims for
indemnity or other claims arising from a contract for
insurance described in section 802(g)(2)(A)(ii) concerning
insurance coverage for eligible costs as defined in section
802(g)(2)(B)(i).
(2) Nothing in paragraph (1) shall be construed to apply to
the extent the issuance or employment of process or service
of any pleading, motion, or notice, of any judicial,
administrative, or other action with respect to claims for
indemnity or other claims does not concern eligible costs (as
defined in section 802(g)(2)(B)(i)) or a contract for
insurance described in section 802(g)(2)(A)(ii). An eligible
person (as defined in section 802(g)(2)(A)) may move to sever
claims not involving eligible costs from claims involving
eligible costs and may proceed with the prosecution of claims
not involving eligible costs.
(b) Termination of Stay.--
(1) Pending Offer of Resolution.--The stay established by
subsection (a) shall terminate with respect to an eligible
person upon the earlier of--
(A) the rejection of a resolution offer by such eligible
person pursuant to section 802(g)(5)(A); or
(B) the failure of the Resolution Fund to timely fulfill
the terms of a resolution offer accepted by such eligible
person.
(2) Expiration of Resolution Offers.--No stay established
by subsection (a) shall be effective after May 31, 2000.
(c) Other Stays.--Nothing in this section shall be
construed to limit or affect in any way the discretion of any
judicial, administrative, or other entity to maintain or
impose a stay that is not required by subsection (a) but that
will otherwise serve the ends of justice by staying a
judicial, administrative or other action pending the
acceptance or rejection of a resolution offer pursuant to
section 802(g)(5)(A).
(d) Authority of United States Unaffected.--Nothing in this
section shall be construed to limit or affect in any way the
discretion or authority of the United States or any party
to commence or continue an allocation process, cost
recovery, or other action pursuant to the authority of
sections 101-122a of the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. 9601-
9622a).
SEC. 805. SUNSET PROVISIONS.
(a) Authority to Accept Request For Resolution.--The
authority of the Resolution Fund to accept requests for
resolution shall terminate after September 30, 1999.
(b) Authority to Offer Resolutions.--The authority of the
Resolution Fund to offer resolutions to eligible persons
shall terminate after March 31, 2000.
(c) Continuing Obligations.--Nothing in this section shall
be construed to limit or affect in any way the authority of
the Resolution Fund--
(1) to make payments pursuant to resolution offers made on
or before March 31, 2000; or
(2) to reimburse insurers with respect to litigation
commenced or continued in connection with a resolution offer
made on or before March 31, 2000, that was rejected by an
eligible person or not acted upon by an eligible person as
provided in section 802(g)(5)(A).
SEC. 806. SOVEREIGN IMMUNITY OF THE UNITED STATES.
No obligation or liability of the Resolution Fund shall
constitute an obligation or liability of the United States,
or of any department, agency, instrumentality, officer, or
employee thereof. No person shall have a cause of action of
any kind against the United States, or any department,
agency, instrumentality, officer, or employee thereof with
respect to any obligation, liability, or activity of the
Resolution Fund.
SEC. 807. EFFECTIVE DATE.
The provisions of this title shall become effective on the
date of enactment of this title.
TITLE IX--TAXES
SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.
(a) Section 59A(e)(1) of the Internal Revenue Code of 1986,
(26 U.S.C. 59A(e)(1) is amended by striking ``January 1,
1996'' and inserting ``January 1, 2001''.
(b) Section 4611(e) of the Internal Revenue Code of 1986
(26 U.S.C. 4611(e)) is amended--
(1) in paragraph (1), by striking ``December 31, 1986'' and
inserting instead ``December 31, 1995'';
(2) in paragraph (2)--
(A) by striking ``December 31, 1993 or December 31, 1994''
and inserting instead ``December 31, 1998 or December 31,
1999'';
(B) by striking ``December 31, of 1994 or 1995,
respectively'' and inserting instead ``December 31 of 1999 or
2000, respectively''; and
(C) by striking ``1994 or 1995'' the last place it appears
and inserting instead ``1999 or 2000'';
(3) in paragraph (3)(A), by striking ``January 1, 1987, and
ending December 31, 1995'' and inserting instead ``January 1,
1996, and ending December 31, 2000''; and
(4) in paragraph (3)(B)--
(A) in the title thereof, by striking ``January 1, 1996''
and inserting ``January 1, 2001''; and
(B) by striking ``Fund before January 1, 1996'' and
inserting instead ``Fund before January 1, 2001''.
SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON INSURANCE
COMPANIES.
(a) In General.--The Internal Revenue Code 1986 is amended
by inserting after section the following new section:
SEC. . ENVIRONMENTAL FEES AND ASSESSMENTS ON INSURANCE
COMPANIES.
[Reserved]
(b) Clerical Amendment.--The table of sections for chapter
of the Internal Revenue Code of 1986 is amended by inserting
after the item relating to section the following:
``Sec. . Environmental Fees and Assessments on Insurance
Companies.''.
SEC. 903. FUNDING PROVISIONS FOR ENVIRONMENTAL INSURANCE
RESOLUTION FUND.
(a) In General.--
(1) Except as provided in section 802(f)(7) of this Act,
all expenditures of the Resolution Fund shall be paid out of
the fees and assessments imposed by section of the
Internal Revenue Code.
(2) Except as may be expressly authorized by the Secretary
of the Treasury, all funds of the Resolution Fund shall be
maintained in the Treasury of the United States. The
Secretary may provide for the disbursement of such funds to
the Resolution Fund or on behalf of the Resolution Fund under
such procedures, terms and conditions as the Secretary may
prescribe.
(b) Transfer to Resolution Fund.--The Secretary of the
Treasury shall transfer to the Resolution Fund on October 1
of fiscal years 1995, 1996, 1997, 1998 and 1999, an amount
equal to the fees and assessments anticipated to be collected
pursuant to section of the Internal Revenue Code of 1986
during the then current fiscal year.
(c) Adjustments.--In each succeeding fiscal year the
Secretary of the Treasury shall adjust the amounts
transferred pursuant to paragraph (2) to reflect actual
collections of fees and assessments during the prior fiscal
year, except that with respect to the transfer made on
October 1, 1999, the Resolution Fund shall reimburse the
Secretary the amount of such transfer subsequently determined
by the Secretary to have exceeded actual collections of fees
and assessments during such fiscal year.
SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.
The Resolution Fund, including its capital, reserves,
surplus, security holdings, and income shall be exempt from
all taxation now or hereafter imposed by the United States
(including any territory, dependency or possession thereof)
or any State, county, municipality or local taxing authority.
____
SUMMARY OF S. 1834
Title I.--Community Participation and Human Health Concerns
A. COMMUNITY INVOLVEMENT
1. Issue
Many communities near Superfund sites, including low
income, minority and Indian communities, feel that they are
not provided with the opportunity to fully participate in the
Superfund process. These and other communities believe that
the program does not address local concerns adequately when
addressing risk or determining the method and level of
cleanup, particularly with respect to future use of land. The
public is often skeptical of the government's willingness to
give serious consideration to community concern. Affected
stakeholders sometimes voice concern that opportunities for
their involvement in site activities come too late in the
process and that their input has little impact on cleanup
decisions. There is a general consensus that opportunities
for earlier, direct and regular community involvement would
enhance the communities' participation throughout the cleanup
process.
2. General Overview of the Proposal
The Administration's proposal is based on the principle
that communities must be involved in the cleanup process from
the time a site is discovered to the time it is finally
remediated. The Administration's proposal sets out several
innovative methods for getting communities involved in the
cleanup process. Community work Groups (CWG) would be formed
to promote early, direct and meaningful public participation
throughout the Superfund process. In addition, communities'
access to information would be facilitated through the
establishment of Citizen Information and Access Offices
(CIAOs) in each state and tribal land affected by a Superfund
site.
Soliciting and evaluating community views would occur as
early as during the site assessment stage of the Superfund
process. The communities' views and preferences on remedies
would also be solicited earlier (i.e., prior to the
feasibility study), providing an upfront opportunity to
participate in and influence the remedy selection process.
Their views could then be considered in the development of
remedial alternatives for the site. Considering the public's
recommendations once a preferred remedial action is proposed
would continue to occur.
a. Community Work Groups.--The CWG would serve as a site
information clearinghouse for the affected community, assist
in establishing land use expectations more reliably, and
obtain greater community support for remedial decisions
affecting future land use. as a result, the community's
preference with respect to land use would be considered in
the development of remedial alternatives for the site.
The proposed bill establishes a hierarchy for considering
future land use recommendations. When the CWG reaches
consensus on future land use, their recommendations would be
given substantial weight in remedy selection. If there is
substantive disagreement within the CWG, then the government
would attempt to reconcile the differences. If disagreement
continues, then substantial weight would be given to the
views of residents of the affected community.
The remedy selection process has also been modified to
account for the community's acceptance of a remedial
alternative, during the evaluation of alternatives, including
the alternative's ability to achieve the community's
preferred future land use. Accordingly, the opportunity for
community input is more meaningful in that it occurs prior to
the proposal of a preferred remedial action plan by the
government. In addition, by requiring the government to
prepare a written explanation when it makes decisions that
are inconsistent with the CWG's recommendations on a
significant issue, the government's accountability to the
affected community with respect to its decision-making is
increased.
The proposed bill contains guidelines for establishing
CWG's (See, Section 103). The CWG membership should generally
not exceed twenty people who serve on the board without pay.
The Administrator would solicit nominations and make the
ultimate selection of CWG members. Notice and opportunity to
participate would be given to people who potentially are
affected by site contamination in the community. Special
efforts would also be made to ensure that the composition of
the CWG reflects the racial, ethnic and economic makeup of
the community. The government would attend and participant in
CWG meetings as appropriate, but would not serve on the
board. This would allow the CWG to function independently of
the government, while providing access to government
officials when needed.
b. Citizens Information and Access Offices.--The CIAO would
provide citizens and elected officials with information on
NPL and ensure wide distribution of information that is
easily understood by citizens. The CIAO would also assist in
notifying, nominating and selecting potential CWG members.
CIAO program funding could not exceed $50 million per year.
Funds would be distributed based on a formula using such
factors as the number and complexity of sites.
These proposed changes to the current Superfund law would
enhance and increase community input into the decision-making
process by providing opportunities for earlier, direct and
regular community involvement. Establishing CWGs and CIAOs
plays a critical role in accomplishing this objective.
Changes in the remedy selection process have also been made
which increase the significance of community acceptance in
determining an appropriate remedy for a site.
c. Technical Assistance Grants.--The proposal amends the
current law to expand the concept of technical assistance
grants to include the granting of services in addition to
funds.
b. environmental justice proposal
1. Issue
Environmental Justice focuses on the needs of disadvantaged
communities. These communities face not only risks from
uncontrolled toxic waste sites, but also from multiple
sources of pollution (e.g., air emissions from nearby
manufacturing plants). EPA, however, has not traditionally
taken into account multiple environmental stresses from
sources other than the site when setting priorities and
evaluating risk under the Superfund program.
2. General Overview of the Proposal
The Administration's proposed amendments to CERCLA seek to
respond to evidence that disadvantaged communities, whether
urban, rural or tribal, bear a disproportionate share of
environmental risk. Priority setting would be changed to
account for the presence of disproportionate risk. In
addition, demonstration projects would be used to advance
methodologies for assessing cumulative risk.
a. Multiple Sources of Risk in Priority Setting.--Under
this proposal, the hazard ranking system (HRS), the model
used to determine sites eligible for the National Priorities
List (NPL), would be amended to explicitly take into account
the presence of multiple sources of risk and cumulative risk
to minority and low income populations in priority setting.
Sites that are placed on the NPL qualify for additional
funding to address long-term risks. The current HRS does not
take into account cumulative risk from sources other than the
site under consideration. In addition, the current HRS is
biased against including urban sites on the NPL, since most
urban areas obtain drinking water from public water supplies.
These changes in the HRS would tip the balance in favor of
placing such sites on the NPL, rather than rejecting them.
The National Oil and Hazardous Substances Contingency Plan
would also be amended to develop methodologies for assessing
the cumulative risk from multiple sources. Advances must be
made in the science of risk assessment to improve such
methodologies. Therefore, demonstration projects are also
proposed to support the development of these methodologies.
b. Demonstration Projects.--The proposed demonstration
projects are part of a five year program of study relating to
multiple sources of risk and cumulative risk. The program is
concerned with identifying and assessing multiple sources of
risk. Locations for demonstration projects would coincide
with areas designated as empowerment zones, to the extent
practicable. This program would be coordinated with Housing
and Urban Development and other appropriate departments or
agencies.
The Administration also proposes to authorize EPA to
conduct a five year study and demonstration project relating
to the provision of additional health related benefits (e.g.,
health screening, medical care) at a selected number of sites
in an effort to increase community acceptance and
satisfaction with actions taken at these sites.
By taking into account cumulative risk from multiple
sources in priority setting and making strides in the area of
identifying and assessing such risk, the Administration
places increased emphasis on responding to environmental
issues of disadvantaged communities that bear a
disproportionate share of environmental risk.
Title II.--State Role
a. state involvement issues
1. Issue
The federal government has primary responsibility for
implementing the Superfund program, and it has exclusive
access to money in the Superfund. States, however, play a
significant role in the program's implementation. CERCLA
currently provides for State involvement in virtually every
aspect of the program. For example, State standards apply to
all cleanups, and States must pay a share of cleanup cost and
provide assurances to conduct operation and maintenance
activities at federally-funded, non-federal facility sites.
State involvement in Superfund cleanups, however, has been
the subject of much controversy. Due to overlapping authority
and responsibility, federal and State governments often
disagree over the degree to which sites should be cleaned up
and the remedy to be used. These disagreements contribute to
the cost and duration of cleanups, and they result in
substantial confusion among stakeholders. Although EPA,
States and Potentially Responsible Parties (PRPs), have
differing opinions of the problem, they would generally agree
that having dual sovereigns exercise some control at each
Superfund site creates uncertainly and duplication of effort
and increases both government and PRP transaction costs. In
addition, all three would support changes to CERCLA that
would leverage Federal, State and private resources to
address the maximum number of contaminated sites possible.
2. General Overview of the Proposal
The Administration's proposal would enhance the state role
in Superfund and limit the duplication between the federal
and state governments at specific sites by establishing a
principle that only one government entity would have
responsibility for each site. States would be offered the
opportunity to assume responsibility and authority for the
cleanup of specific sites. States could elect to take on
clean up responsibilities at all sites or categories of
sites, depending on their interest and the capabilities of
their program. EPA would work with the States to help them
develop the capacity to take on more responsibility.
States that did take on clean up responsibilities would be
given access to federal funds under certain conditions. To
support this larger role, a State would be required to
have in place a clean up program substantially consistent
with the federal program.
a. Authorization and Referral.--This proposal provides for
increased State involvement in response actions for NPL Sites
and federal facility sites through either site-specific
referrals or State program authorization. Under either
scheme, States will take lead response roles, select
remedies, and have access to the Fund to finance a portion of
necessary response costs. This proposal would provide for
meaningful public participation at various stages of the
referral and State program authorization processes, in order
to ensure public accountability for State expenditure of
Federal response action dollars at referred sites and in
authorized programs. Finally, more positive State-EPA and
State-PRP relationships may result with the recognition that
many States have adequate authorities and capabilities to
proceed in a lead role at NPL sites with minimum EPA
oversight.
EPA will provide funding for referred sites and authorized
programs through a grant with the State. The grants would
include non-site-specific program support and response action
funds. The State would be required to provide cost share when
receiving federal funds through such grant. Currently, States
are responsible for ten percent (10 percent) matching funds
for federally-funded remedial actions only and are fully
responsible for operation and maintenance requirements at
such sites. EPA would consider cost recovery and the
effectiveness of a State's enforcement program in allocating
additional funds to the State. EPA would conduct bi-annual
performance reviews of State programs and response actions at
referred and authorized programs to determine whether
continued funding is appropriate. EPA would also retain
discretion to withdraw authorization or referral for all or
part of a State program.
State program authorization would provide States with
programs that are substantially consistent with the Federal
program with the opportunity to take the lead role at all NPL
sites within the State. Authorized States need not take the
lead at all NPL sites, but may address a category or
categories of sites (as defined by EPA). However, authorized
States choosing to address particular categories of sites
will be responsible for all phases of response at all NPL
sites within the category or categories of sites.
To obtain authorization or site-specific referral, States
must have a program with the statutory and administrative
authority, as well as technical capability and resources, to
conduct the full range of response activities (including
enforcement) in a manner substantially consistent with the
Federal program under CERCLA and the NCP. For example, the
State must demonstrate that it has a process for allocating
liability among responsible parties, provides for public
participation and provides for CERCLA quality cleanups.
At all authorized and referred sites, States will select
remedies and have access to Superfund monies for response
activities. Fund-financed remedial actions will be limited
to Federal funding amounts necessary to achieve CERCLA
cleanup requirements, and will be subject to a state cost
share. The State may enhance a remedy beyond CERCLA
requirements, but will be required to pay for all of the
excess costs necessary to achieve those standards.
EPA would have the opportunity to review any proposed plan
for a remedial action before the State selects the remedy.
The State also would give EPA a copy of the final selected
remedy. Within ninety (90) days, EPA may request a
modification to the remedy. If EPA's concerns were not
adequately addressed by the State, EPA could withhold funding
or withdraw all or part of the State's authorization, or
both.
As mentioned above, to ensure public accountability for
State expenditures of Federal dollars, EPA would review State
programs on a bi-annual basis. The review would be used to
determine if: 1) response actions were conducted in a manner
consistent with the Federal program; 2) Federal funds were
utilized in the manner agreed to during the funding process;
and 3) the State's cost recovery and other enforcement
efforts were adequate.
Title III.--Voluntary Response
a. state voluntary program
1. Issue
The universe of sites requiring cleanup is much larger than
either EPA or State environmental agencies can address alone.
With limited resources, EPA and the States have focused their
efforts on maximizing risk reduction at those sites posing
the greatest threat to human health and the environment.
Although many non-NPL/medium risk sites are being addressed
by other federal agencies and several State programs, there
still exists a substantial backlog of low- and medium-risk
sites that are not currently being addressed by any
governmental agency. The resultant delays in addressing such
sites can prolong exposure to environmental risks and
restrict economic redevelopment in those areas.
2. Proposal
The Administration's proposal maintains a ``worst sites
first'' approach to achieve maximum risk reduction, while
assisting State and private parties to clean up sites that
may not pose as great a risk, but which have significant
economic redevelopment potential. By working with the States
to help them enhance existing voluntary cleanup programs and
develop new ones, EPA can also leverage its resources to
increase the speed and number of cleanups at contaminated
sites. Given the fact that most voluntary cleanups are driven
by local economic redevelopment concerns, EPA believes that
States are in the best position to oversee such efforts.
b. economic redevelopment proposal
1. Issue
At contaminated sites, uncertainty about future tort, third
party, and CERCLA liability, as well as uncertainty about
cost, cleanup standards, and the length of time needed for
cleanup often create barriers to the redevelopment of these
sites--regardless whether the site is of federal or state
concern. This situation deters investment in such sites. As a
result, at times, affected communities may suffer such
adverse economic effects as declining property values and
increasing unemployment rates. Furthermore, since the poor
and many minority groups tend to be concentrated in older
urban centers or rural areas where polluted real estate is
usually found, they may bear disproportionately greater
health and environmental risks.
2. General Overview of the Proposal
The Administration's proposal is designed to reduce the
current Superfund-related obstacles to the redevelopment of
contaminated sites. It changes provisions of the current law
that discourage prospective purchasers from investing in
contaminated property and banks from lending money for such
purposes. The Administration's proposal contains a
conditional exemption from liability for bona fide
prospective purchasers of contaminated property. Since CERCLA
liability is often noted as a key factor in freezing the
market for industrial and commercial properties, this
exemption would provide certainty for these parties, thereby
providing an incentive to bring contaminated property back
into productive use.
Prospective purchasers' liability would be limited if a
person: acquired the property subsequent to disposal of
hazardous substances; conducted a site audit and in the case
of property for residential or noncommercial use, a site
inspection and title search revealed no basis for further
investigation; provided proper notification of releases of
hazardous substances; exercised due care and took reasonably
necessary steps to address the release or threatened release
of hazardous substances and to protect human health and the
environment; and provides cooperation, assistance and site
access to those responsible for response actions. To prevent
against sham transactions, a bona fide prospective purchaser
cannot be affiliated with any other person liable for
response costs.
To protect against unjust enrichment the government could
place a lien on the property. The lien would be based on the
fair market value that response action increases the value of
the property, (e.g., the net difference between the value of
the property prior to and following the response action). The
lien would continue until it is satisfied or all response
costs are recovered, whichever is sooner.
Title IV.--The Liability Scheme
a. proposals to increase fairness and reduce transaction costs in
implementing the liability scheme
1. Issues
The Superfund statute makes those who caused or were
associated with contamination liable to finance or conduct
cleanup. Liability is strict, joint and several, and
retroactive. EPA has used the statute to obtain a large
proportion of current cleanups. The liability scheme has
resulted in 72% of new Remedial Actions being undertaken by
responsible parties in the 1992 fiscal year, up from a 37%
liable party share in FY 87. EPA has obtained over $8 billion
in responsible party commitments to do response work since
1980. Many claim that the Superfund liability scheme has
positively modified behavior respecting waste disposal.
Notwithstanding CERCLA's role in, effecting privately
funded cleanups on a large scale, many criticize the statute.
Criticisms fall roughly into three groups. First, liable
parties commonly complain that the strict, joint and several,
retroactive liability scheme is unfair, principally on
grounds that it imposes costs on a liable party which may
exceed its proportional ``share'' of the costs of clean up,
and that it imposes liability for acts which may have been
legal when taken. The impact on small waste contributors
generally may be most acute, because often they are least
able to bear the costs of cleanup.
Second, parties often complain that implementation of the
statute imposes heavy transaction costs on them. These costs
primarily arise from disputes between and among liable
parties over their allocation of cost shares, often by way of
contribution litigation, and secondarily from coverage
disputes between liable parties and their insurers.
Finally, many complain about the broad scope of the
liability scheme, and about its unintended effects. For
example, one of the unintended effects of the Superfund
liability scheme is that many truly small waste contributors,
who are technically liable but rarely the subject of EPA
enforcement, are drawn into litigation through contribution
suits brought by large liable parties. Municipalities which
are generators and transporters of Municipal Solid Waste
(``MSW'') also claim that they are unintended victims of the
liability scheme. Finally, prior to promulgation of EPA's
lender rule, lenders claimed their normal lending practices
could be chilled in some cases because of potential Superfund
liability exposure, and trustees complain about potential
liability exposure in their activities.
2. Overview of the Proposal
In addition to the government's proposed allocation scheme
set forth in IV.B. below, the proposal makes adjustments to
the Superfund liability scheme to increase the scheme's
overall fairness and efficiency and to reduce transaction
costs for all, especially those least able to bear them.
To increase the liability scheme's overall fairness and
efficiency, and to reduce transaction costs, the
Administration recommends making substantial improvements in
the manner in which the current liability scheme is
implemented while retaining the core elements of the scheme.
Such improvements include exemptions for ``de micromis''
parties, expedited settlements for de minimis parties, limits
on the liability of MSW generators and transporters,
protection for lenders and trustees, a mandatory cost
allocation process (including assignment to the government of
a major portion of the ``orphan share''), and decisively
greater opportunities for finality in settlement. Specific
proposals for these improvements follow in succeeding
sections.
3. Specific Proposals
a. Truly Tiny Parties (``De Micromis'' Parties)
i. Issue
EPA as a matter of practice generally does not pursue truly
small volume waste contributors, principally on grounds of
equity, and also because it is not an efficient use of the
government's enforcement resources. However, liable parties
sometime do. To date, this problem has arisen largely in
municipal/industrial ``co-disposal'' landfill cases where
generators of chemical or industrial wastes have brought
contribution actions against large numbers of small parties
who contributed only trash or other MSW. These contribution
actions are premised on generic studies which show that MSW
contains small quantities of hazardous substances. In such
cases, the resulting litigation and other transaction costs
can overwhelm the truly small volume parties, and are likely
to far exceed the allocable share of each such party, even if
liability can be established. The Administration therefore
believes that truly small volume waste contributors should
receive protection against such actions both as a matter of
equity, and as a means of eliminating transaction costs which
are not justified by the likely recovery from these parties.
ii. Proposal
The Administration proposes to provide exemption from
liability special treatment to ``de micromis'' parties, but
to distinguish between contributors of MSW on the one hand,
and contributors of hazardous substances generally on the
other. Cutoffs of five hundred (500) pounds of MSW, and ten
(10) pounds or liters of hazardous substances, respectively,
would be established. ``De micromis'' MSW contributors whose
contributions fell below the MSW cutoff would have an
absolute exemption from CERCLA liability. ``De micromis''
non-MSW contributors whose contributions fell below the non-
MSW cutoff would be wholly exempt from third-party
contribution actions and would be exempt unless their
contribution significantly contributed to response costs.
b. De Minimis Parties
i. Issue
CERCLA authorizes expedited settlements with de minimis
parties. In adding this provision to CERCLA in 1986, the
Congress recognized the need to provide small volume waste
contributors an early opportunity to fully resolve their
liability for a site to avoid both the full impact of
CERCLA's joint and several liability scheme and the
transaction costs incurred in monitoring site activities and
defending against contribution claims.
However, the absence of information required to make the
statutory determination of eligibility, uncertainties in the
statutory text concerning the level of information needed for
this determination, and the resources required to negotiate
de minimis party settlements have resulted in an under-
utilization of these authorities. As a result, many de
minimis waste contributors have had to incur costs in
monitoring developments at Superfund sites and have been
subjected to third party contribution actions with their
attendant high transaction costs. In addition, under-
utilization of the de minimis settlement authority has been
an impediment to reaching an expeditious overall settlement
with the larger waste contributors.
ii. Proposal
The Administration proposes amendments to make it
substantially easier for EPA to settle with de minimis waste
contributors earlier in the site remediation process. Among
other things, the amendments would require that the
government need only show that the individual contributor's
contribution, not the collective contribution of the entire
de minimis contributor class, is minimal in comparison to the
total waste contributions; and that the contributor's waste
is not significantly more toxic than other wastes.
Moreover, to ensure greater use of this authority, EPA
would be required, when it rejects a written request for a de
minimis settlement, to explain in writing why use of this
authority is inappropriate.
c. Lenders and Trustees
i. Issue
While CERCLA Sec. 101(20)(A) exempts persons who, without
participating in the management of a facility, hold indicia
of ownership in the facility primarily to protect a security
interest, questions regarding the judicial interpretation of
this ``security interest'' exemption have generated
uncertainty within the financial and lending communities. In
particular, uncertainty exists with regard to the extent to
which a secured creditor may undertake activities to oversee
the affairs of a person whose facility is encumbered by a
security interest without incurring CERCLA liability.
Specifically, there is concern over whether actions commonly
taken by a secured creditor (``lender'')--such as monitoring
facility operations; requiring compliance with legal
requirements and compliance-related activities;
refinancing or undertaking loan workouts; providing
financial advice; and undertaking other similar actions
that may affect the financial, management, and operational
aspects of a business--may constitute evidence that the
lender is ``participating in the management of a
facility.''
In April 1992, EPA promulgated its Final Rule on Lender
Liability. The Final Rule defined and amplified the meaning
of the key terms of the statutory exemption. In addition to
clarifying the meaning of the terms and providing a ``bright
line'' liability standard, the overall goals of the final
rule were: (1) to allow lenders to work with their borrowers,
without necessarily incurring liability; (2) to preserve a
lender's traditional remedy--foreclosure; and (3) to ensure
that the benefits of a taxpayer-financed cleanup inure to the
benefit of the public, and not to the private lender.
Lending institutions and others who act as trustees have
expressed concern about the potential CERCLA liability of
trustees. In particular, concern has been expressed about the
potential liability of ``passive trustees,'' i.e., those who
perform ministerial tasks pursuant to trust instruments but
exercise little or no control over the management of trust
property. Since these trustees often hold legal title to the
trust property, there is a risk that they will be found
personally liable as ``owners'' under Sec. 107(a)(1) when
response costs are incurred at property held in trust.
ii. Proposal
The Administration proposes an amendment to Sec. 101 of
CERCLA to explicitly state that the term ``owner or
operator'' does not include persons who hold title to a site
solely as a trustee, custodian, or fiduciary as required by
law, provided that they do not contribute to the release or
threatened release of hazardous substances and are not
affiliated with a liable party, other than through a
custodian or fiduciary role, provided that they comply with
any requirements that EPA establishes for such parties
through regulation.
The Administration's legislation also would clarify EPA's
authority to issue regulations interpreting the limitations
on liability of lenders.
d. Municipal Solid Waste (``MSW'') Contributors
i. Issue
The principal question is whether generators and
transporters of MSW and municipal sewage sludge (``MSS'')
should be treated differently than other liable parties at
Superfund sites. Superfund does not specifically address
generators or transporters of MSW and accordingly does not
exempt them from potential liability for cleanup costs. The
law imposes liability on, among others, a person who arranged
for the disposal or treatment of hazardous substances.
Studies indicate that ordinary household waste may contain a
small percentage of a variety of hazardous substances. In
December 1989, EPA issued the Interim Municipal Settlement
Policy (``Policy''), which stated that EPA would not pursue
generators or transporters of MSW under Superfund absent
site-specific information that there were hazardous
substances present from industrial, commercial, or
institutional processes. This statement was an exercise of
enforcement discretion and not an interpretation of the
statute.
Although EPA generally has not pursued MSW generators or
transporters, the Policy did not prevent other responsible
parties from pursuing them for contribution. Municipalities
and private generators and transporters of MSW have been sued
or threatened with third-party litigation by private parties
who believe that MSW contains hazardous substances and also
contributes significantly to the costs of Superfund remedies
due to the large volume disposed of at sites. Such actions
have caused or have the potential to cause substantial
transaction and remediation costs that exceed what the
Administration believes to be the MSW generators' or
transporters' fair contribution to site cleanup.
ii. Proposal
``De Micromis'' MSW Contributors. See Part IV. A. 3. a.
``De Micromis'' Parties above.
Non-``De Micromis'' MSW Contributors. The Administration
proposes to provide settlement opportunities to MSW
generators and transporters through the expedited settlement
process (See Allocating Cost Shares, Part B below), with the
MSW liability limited in aggregate to not more than 10% of
the total cost of cleanup at the site. If the allocable share
attributable to MSW exceeds the share assumed by such parties
in any settlement with the federal government, the difference
would be assigned to the orphan share.
The proposal provides contribution protection to an MSW
contributor that settles with the United States. This
approach would also specify that parties that do not elect to
settle in this manner will be placed in the general cost
allocations process.
e. Municipal Owners and Operators
i. Issue
The principal question is whether municipal owners and/or
operators of Superfund sites should be treated differently
than private owner/operators because they provided a public
service in owning/operating landfills and because they may
experience ability to pay problems.
ii. Proposal
While the Administration proposes no adjustment to the
liability of municipal owners and operators, the
Administration recognizes the unique circumstances of
municipal owner/operators and is committed to provide relief
to those parties through expedited settlements based on
ability to pay. The proposal also contains an explanation of
the factors which may be relevant in determining such
parties' ability to pay. A municipal party's provision of
``in-kind'' services may also be taken into account
(considered at fair market value).
f. Authority to Ensure Finality of Settlements
i. Issue
Existing CERCLA settlement authorities do not permit
immediately effective releases from liability in most cases,
which is contrary to most parties' expectations in settling
litigation. Conditioning this aspect of settlement on success
of the chosen remedy protects the Fund but can leave parties
open to future claims many years later. Responsible parties
contend that since EPA selects the remedy, it should bear the
risk that the remedy will not work.
The current statute also restricts EPA's settlement
authority by requiring EPA to include in all but
``extraordinary circumstance'' settlements a reopener
provision for future liability based on unknown site
conditions. Responsible parties claim that this ``statutory
reopener'', in effect, imposes perpetual liability and serves
as a disincentive to settlement.
ii. Proposal
The Administration proposes to amend CERCLA in a manner
that will strike an appropriate balance between the competing
interests of providing finality to settling parties while
protecting the Fund against the need to fund future remedial
actions. The first amendment will provide that the
government's covenant not to sue for future liability will
become effective upon entry of the consent decree, but will
remain in effect only so long as the settling parties are in
compliance with the decree. A second amendment would empower
EPA to enter into settlements with complete and final
covenants not to sue for future liability--without statutory
reopeners--where, among other things such covenants are in
the public interest and where the settlors pay a premium for
the risks of remedy failure and unknown conditions.
g. Liability of Federal Agencies
i. Mining sites
(i). Issue
I can be argued that the United States may be liable under
Section 107 of CERCLA as the past or present ``owner'' of
public lands subject to ``unpatented mining claims'' under
the General Mining Law of 1872, pursuant to which private
parties engaged in mining activities on such lands which
caused or contributed to the release of hazardous substances.
The United States' ``ownership'' interest is unlike that of a
private party's. For example, once a mining claim was
asserted, the miner effectively controlled full use of the
property, and the United States could not prevent or manage
the mining activities. Upon request of a miner with a valid
claim, the United States was statutorily compelled to grant a
``patent'' (i.e., deed) to the property. In addition, it was
not until, passage of the Federal Land Policy and
Management Act (``FLPMA'') that the United States was
conferred an ability to ``manage'' the mining activities
permitted on federally-held lands.
CERCLA Sec. 120 imposes certain requirements upon federal
agencies, including the requirement that they enter into
interagency agreements (``IAGs'') with EPA; and include in
annual budget submissions a review of alternative funding
that might be used to provide for cleanup costs.
(ii). Proposal
The Administration's bill proposes that the United States
be exempt from liability under CERCLA when its ownership
interest and/or involvement with a mining site is solely as a
result of its statutorily compelled land management
functions; and the act of disposal giving rise to CERCLA
liability occurred before 1976. The Administration's bill
also proposes that for unpatented sites, the United States
remains subject to Section 120, and will finance response
activity where it is unable to locate viable PRPs. The bill
provides that in any event, the United States' potential
operator or ``arranger'' liability under Section 107 remains
intact.
ii. Liability for penalties at sites owned by non-federal PRPs
(i). Issue
The present statute explicitly waives sovereign immunity in
Sections 120(a) and 122(l), and renders federal agencies
liable for penalties regarding federal facilities. The
present statute does not clearly waive immunity for penalties
arising at private party sites.
(ii). Proposal
The Administration's bill proposes a Miscellaneous
Amendment explicitly waiving sovereign immunity in CERCLA so
as to render the United States liable for all civil and
stipulated penalties under CERCLA, whether or not it owns the
Site.
iii. Natural disasters
(i). Issue
CERCLA liability may deter governmental entities and/or
their contractors from responding to natural disasters on
contaminated lands.
(ii). Proposal
The Administration's bill proposes a Miscellaneous
Amendment explicitly stating that the waiver of sovereign
immunity does not extend to the United States when it is
responding to natural disasters on contaminated lands. (We
anticipate that this Administration bill ultimately will
extend this protection to state and local governments and
possibly their contractors.)
iv. Co-response agency
(i). Issue
Federal agencies, such as the U.S. Coast Guard, the U.S.
Army Corps of Engineers, and EPA, in implementing response
action, as mandated by CERCLA and/or the Clean Water Act, may
be subject to CERCLA liability.
(ii). Proposal
The Administration's bill proposes a Miscellaneous
Amendment, explicitly stating that the waiver of sovereign
immunity contained in section 120(a) does not extend to
federal agencies implementing response action pursuant to
CERCLA and/or the Clean Water Act.
v. War-time economic regulatory control
(i). Issue
The United States may be held liable for activities taken
by a private party because of its regulation of the economy
during wartime.
(ii). Proposal
The Administration's bill proposes a miscellaneous
amendment explicitly stating that the waiver of sovereign
immunity does not extend to the United States' economic
regulation of industry during war-time.
b. reducing transaction cost and increasing fairness in the allocation
of cost shares
1. Issue
CERCLA's liability regime now operates to ensure prompt
settlement of government-initiated actions and expeditious
initiation of cleanup by private parties. The
Administration's proposal preserves the incentives the
current scheme creates for environmental compliance and
responsible handling of hazardous substances. The reforms
ensure the pace of cleanup proceeds expeditiously and
provides incentives for private party action. Similarly, the
proposal decreases the total transaction costs.
There is, however, much justified criticism of the status
quo. Many complain of the unfairness of a regime that permits
parties to be held liable for more than what they regard as
their ``share.'' In addition, government-initiated
litigation often commences a second round of private party
litigation seeking contribution from other PRPs at the
site. Due to the limited information on which allocation
can be based and the magnitude of the liability,
negotiation and litigation among PRPs on issues relating
to allocating costs often is protracted and can generate
considerable transaction costs. There is a legitimate
federal interest in reducing the transaction costs that
CERCLA occasions. A second and related concern is the
extent to which contribution actions generate litigation
involving certain parties for which the costs of
protracted litigation are not justified by the likely
recovery from those parties. These parties include ``de
micromis'' and de minimis contributors to a site, parties
of extremely limited means, municipalities and other
contributors of extremely small amounts of household
hazardous waste.
2. Proposal
The Administration proposes an early, expeditious and
obligatory cost allocation process, for NPL sites with more
than two parties, reinforced by appropriate incentives to
settle and disincentives to litigate. The Administration
regards this as the best approach to the problem of
transaction costs and increasing fairness, because the
proposal should substantially curtail current contribution
litigation and wrangling over allocation of costs without
creating a new and potentially expensive and time-consuming
formal administrative or judicial process. The proposal
places a moratorium on the commencement of cost recovery and
contribution suits until the allocation process is concluded.
The allocation process must start no later than eighteen (18)
months after the commencement of the remedial investigation/
feasibility study. To initiate the allocation process, EPA
would notice potentially responsible parties that may be
assigned shares and provide such parties with a list of
neutral allocators. The allocation will be governed by
published regulations based on the Gore factors. PRPs may
elect to include natural resource damages in the allocation
process. EPA would provide the opportunity for the allocation
parties to voluntarily settle their cost shares. Failing
that, the allocator would issue an allocation scheme based on
percentage shares of responsibility, including orphan shares.
The Federal Government would accept any settlement offer
based on the allocation scheme, provided that such offer
include appropriate premia and terms and conditions of
settlement, unless it determined that such settlement was not
fair, reasonable and in the public interest.
Settling PRPs may receive a final release from future
liability for remedy failure and undiscovered risks, provided
that among other things, they pay a premium and there are
adequate assurances for performance of a final remedial
action.
The proposal provides incentives to settle on the basis of
the allocation, and disincentives to litigate, including the
availability of orphan share funding and greater finality for
settling parties, and the imposition of joint and several
liability and fee-shifting on non-settling parties. It also
requires settling parties to waive their right to seek
contribution, thus limiting transaction costs associated with
litigation primarily to those incurred from government
initiated claims against recalcitrant parties.
The proposal also provides an opportunity for early
settlement with those parties for whom the benefit of
litigation or participation in allocation greatly exceeds
their liability or ability to pay. This includes de minimis
waste contributors, parties with limited financial means, and
generators and transporters of MSW.
The Administration proposes to fund shares of non-viable
and limited ability to pay parties up to $300 million a year.
Title V.--Remedy Selection
A. Speeding cleanups, cutting cost
1. Issue
Protracted and costly site cleanups are a result of a
number of factors under the current approach for selecting
remedies. The law currently does not specify a standard level
of cleanup nationwide; instead it establishes a complex
cleanup framework under which applicable or relevant and
appropriate state and federal standards are used to set
cleanup levels on a site-by-site basis. This site-by-site
determination encumbers remedy selection by constraining
EPA's ability to draw on the last thirteen years of
experience in determining appropriate remedies.
2. General Overview of the Proposal
The Administration's proposal is premised on the principle
that all communities are entitled to receive the same
protection from carcinogenic and non-carcinogenic health
risks. Establishing national generic cleanup levels is at the
core of achieving this concept. Reduced cleanup cost would
result from establishing national cleanup levels by
eliminating inefficient site-by-site decision making,
wherever possible. An ancillary benefit of national cleanup
levels is that they would promote the use of generic remedies
by fixing the endpoints that categories of remedies would
need to meet. Generic remedies tap into experience gained
from remediating similar sites and obviate the need for
extensive study.
b. cleanup levels
1. Issue
Determining the standards for cleanups has been a matter of
recurring concern. At present, remedies require compliance
with ``applicable'' or ``relevant and appropriate''
requirements of other federal and more stringent state
environmental laws (``ARARs''). As a result, ARARs are used
to establish cleanup levels. Where no ARAR exists, cleanup
levels are determined by site specifically using risk
assessment methodologies to achieve a goal of protectiveness.
The use of ARARs has been identified as a principal cause
of delay in cleanups (because of disputes between regulators
over interpretation). Furthermore, while ARARs sometime
provide suitable cleanup standards, in some cases ARARs
increase costs of remedies significantly without a
commensurate level of risk reduction. Moreover, mandatory
compliance with ``relevant and appropriate'' requirements
imposes conditions on Superfund remedies that are not applied
in similar cases outside the CERCLA context.
Since ARARs are not generally available for soil, one of
the key media impacted at Superfund sites, most sites require
a site-specific, risk-based determination of soil cleanup
levels under the current system. Also, the lack of soil
cleanup standards is an impediment to voluntary cleanups,
since it is difficult for private parties to predict the
level of cleanup necessary to eliminate the need for
regulatory action later.
Insufficient standardization in risk-based approaches for
determining cleanup levels has resulted in concerns regarding
consistency and has also hindered voluntary cleanup. Although
it is evident that certain site conditions necessitate some
degree of flexibility in determining appropriate cleanup
levels.
2. Proposal
The Administration's proposal increases predictability and
consistency in determining cleanup levels to encourage
voluntary cleanups; ensures that cleanup levels are suitable
for application at Superfund sites to increase the cost-
effectiveness of remedies; and greatly simplifies the process
for determining such levels, to improve efficiency. These
objectives are accomplished by developing national goals,
national generic cleanup levels and a national risk
assessment protocol which would ensure that remedial actions
are protective of human health and the environment.
National generic cleanup levels would be developed for
specific chemicals. The cleanup levels would reflect
different land uses (e.g., different chemical-specific
cleanup levels for residential and industrial land uses).
Cleanup levels could also be calculated using site-specific
parameters that are known to vary on a site-specific basis
(e.g., pH, depth of groundwater, etc.). The national generic
cleanup levels would also represent a level below which a
response action is not required.
Where appropriate, the Administrator could rely on a site-
specific risk assessment to determine the protective level of
cleanup for a site. A national risk protocol for conducting
risk assessment would be used in this instance.
Remedies would comply with the substantive requirements of
any federal environmental facility and siting law that is
suitable for application to a remedial action at the site;
and any state requirement that specifically addresses
remedial action that is more stringent than any federal
requirement, unless waivers are invoked. As a result, sites
located in States with more stringent cleanup levels would be
remediated to the State levels instead of federal
national generic cleanup levels or federal site-specific
risk-based cleanup levels, unless waivers are invoked.
Waivers are consistent with those in the current statute,
with an additional waiver for when a generic remedy is
selected at a site.
c. remedy selection process
1. Issue
There is a widely held perception that Superfund remedies
are excessively costly. Many believe that remedies incur
substantial costs without achieving a commensurate degree of
risk reduction, and that some remedies are based on
unnecessarily stringent land uses. There also is general
agreement that the existing remedy selection process needs to
be streamlined to simplify and expedite the selection of
remedies to achieve in faster risk reduction at sites.
The current remedy selection process derived from the
statutory mandates and preferences requires that remedial
actions meet two threshold criteria: protectiveness of human
health and the environment and ARARs. Remedial alternatives
that meet the two threshold criteria are evaluated using five
balancing criteria: permanence, treatment, short-term risk,
implementability and cost. The remedial alternative that
provides the best balance between these criteria is to be
preferred. State and community acceptance of the preferred
remedial action is then considered prior to the selection of
a remedy.
Although the preferred remedy could be modified based on
State and community acceptance, this raises concern that the
communities' views are solicited too late in the process to
be fully meaningful.
2. Proposal
The Administration's proposal continues to mandate that all
remedies must be protective of human health and the
environment and attacks the three factors under the current
remedy selection process that drive the cost of remediation:
ARARs, the mandate for permanence to the maximum extent
practicable, and the preference for treatment.
The role of ARARs would be modified as discussed above. The
mandate for permanence would be eliminated and instead, the
long-term reliability of a remedy would be considered. This
change would place permanent treatment remedies and
containment remedies on a level playing field, instead of
favoring treatment for all waste other than hot spots. The
proposal specifically limits the preference for treatment to
hot spots. Hot spots are areas of hazardous substances that
are highly toxic or highly mobile, cannot be reliably
contained, and would present a significant risk to human
health or the environment should exposure occur. When a
treatment remedy is not available or is too costly and it is
likely that a less costly treatment remedy would become
available within a reasonable period of time, interim
containment could be selected. Any interim containment remedy
would include adequate monitoring to ensure the continued
integrity of the containment system. When an appropriate
treatment remedy becomes available it would be selected
and implemented.
Under the proposal, remedies would continue to utilize
treatment, containment, other remedial measures, or any
combination of such measures. The appropriate remedial
approach would be determined on a site-specific basis by
applying modified remedy selection criteria. The remedy
selection nine criteria would be changed and reduced to five,
to streamline the remedy selection process. An appropriate
remedy that is protective of human health and the environment
would be determined by considering the remedy's: (1)
effectiveness; (2) long-term reliability, that is, its
capability to achieve long-term protectiveness of human
health and the environment; (3) implementation risk; (4)
acceptability to the affected community; and (5) cost in
relation to the preceding factors. Under this approach, both
cost and community acceptance would play a greater role than
they presently do.
To further streamline remedy selection and facilitate rapid
voluntary action, generic remedies for categories of sites
would be established taking into account the factors
enumerated above. Expedited procedures that include community
involvement would also be developed for selecting generic
remedies at individual sites.
A number of other changes are proposed to allow for early,
direct and meaningful community involvement as described
above. These changes include the opportunity to establish
Community Work Groups (CWG) and Community Information Access
Offices. Through the CWG, communities would play a larger
role in making land use recommendations at sites. (A more
detailed description of the issues and proposed changes to
address community involvement is presented in Part I A.2.a.).
D. REMOVAL ACTIONS
1. Issue
While the streamlined remedy selection process described
above would accelerate risk reduction activities, a need to
use removal actions to achieve immediate risk reduction would
remain. Certain statutory constraints need to be changed to
enhance the effectiveness of employing removal actions to
accomplish rapid risk reduction.
2. Proposal
To facilitate the effective use of removal authority the
dollar limit on Fund-financed removals would be increased
from $2 million to $6 million; and the time for completion
would be expanded from one year to three years. Additionally,
the proposal modifies the waiver from these limitations to
clarify that a waiver could be used where the nature of the
long-term remedial action was uncertain or where it was
expected that the removal would make remedial action
unnecessary.
The statutory definition of removal would be clarified to
remove the ambiguity of whether removal authority is limited
to emergency situations or short term actions. Finally, to
address concerns that increased use of removal authority may
reduce public participation, a public comment period of
thirty (30) days would be required whenever the planning
period for a removal action exceeds six months.
Title VIII.--Environmental Insurance Resolution Fund
a. insurance transaction cost
1. Issue
Under the current law, high transaction costs result from
disputes between insurers and insureds arising out of the
liability imposed by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA).
These disputes between insurance companies and insureds
concern the applicability of contracts of insurance to
liability under CERCLA which often result in protracted
litigation.
2. Proposal
The Administration's proposal establishes the Environmental
Insurance Resolution Fund. The Fund is funded solely by fees
imposed on insurance companies; the Fund will offer holders
of insurance policies comprehensive resolutions of their
CERCLA claims against insurance companies. The Fund is
structured to eliminate the vast majority of litigation
between insurers and insureds and expedite the availability
of funds for response actions.
The Fund will offer one comprehensive resolution of all
eligible costs of an eligible person at eligible sites.
An eligible person is a person (1) who is a PRP at an NPL
site or is subject to liability for a removal at a non-NPL
site and (2) who holds or held certain insurance coverage.
Eligible costs are (1) response, natural damages, and duty-
to-defend costs incurred at an eligible NPL site, and (2)
removal and duty-to-defend costs incurred at a non-NPL site.
All costs must be incurred in connection with the disposal of
a hazardous substance on or before December 31, 1985.
Eligible costs of an eligible person are capped at $15
million, unless the eligible person can demonstrate a greater
level of insurance coverage.
Resolution offers made by the Fund shall be for a stated
percentage of all eligible costs incurred by eligible persons
at eligible sites.
First, the Fund will by regulation classify each state into
one of three percentage categories based on how State
insurance law applies to disputes between insurers and
insureds with respect to superfund liability. The percentage
category is 60 percent for the 10 States in which the law
is most favorable to insureds; 20 percent for the 10
States in which the law is most favorable to insurers; and
40 percent for all other States. The final regulation
issued by the Fund shall not be subject to judicial
review.
Second, the Fund will determine the appropriate State
percentage applicable to an eligible person. If an eligible
person had established litigation venue in one State, the
percentage category of that State will govern the resolution
offer. If an eligible person had established more than one
State litigation venue, the State percentage will be the
average of the State percentages, weighted according to the
number of eligible sites located in such States. If an
eligible person has only one eligible site but had not
established a litigation venue in any State, the State in
which the site is located will determine the resolution
percentage. If an eligible person has more than one eligible
site and had not established a State litigation venue, the
State percentage will be the average of the State percentages
in which the sites are located, weighted according to the
number of sites located in those states.
Litigation venue is deemed established if, on or before
December 31, 1993, an eligible person had pending in a court
of competent jurisdiction a complaint or cross complaint
against an insurer with respect to eligible costs at an
eligible site, and no motion to change venue with respect to
such complaint was pending on or before January 31, 1994.
An eligible person must accept or reject a resolution
within 60 days; an eligible person who does not do so is
deemed to have rejected the offer.
An eligible person who accepts a resolution must agree to
waive any future claims against an insurer for eligible
costs, and to stay or dismiss each claim pending against an
insurer for such costs. Any such claim may be reinstated upon
failure of the Fund to timely fulfill its obligations under
the resolution. Applicable statutes of limitation with
respect to such claims are tolled during the pendency of the
stay of pending litigation established by the title.
Payment of eligible costs pursuant to a resolution are (1)
made over 8 years with respect to such costs incurred on or
before the date the resolution is accepted and (2) payable
within 60 days with respect to such costs incurred after the
date the resolution is accepted.
Payment of eligible costs is reduced once to the extent of
the insurance deductible or self-insured retention of an
eligible person.
Eligible duty-to-defend costs that have previously been
paid by an insurer, and that are the subject to a dispute
between the insurer and the eligible person, are payable to
the insurer.
If an eligible person rejects a resolution offer and
successfully litigates against an insurer, the Fund will
reimburse the insurer for the lesser of the resolution offer
or the final judgment obtained against the insurer. The Fund
may reimburse the insurer for litigation expenses if the
final judgment is less favorable than the resolution offered
by the Fund except that the total reimbursement to an insurer
may not exceed the resolution offered by the Fund. If the
litigation is unsuccessful, or the final judgment is less
favorable than the resolution offered by the Fund, the
insurer has a cause of action against the eligible person
for 20 percent of the reasonable costs and legal fees
incurred by the insurer in connection with the litigation.
No provision of Title VIII, and no action by an eligible
person pursuant thereto, constitutes an admission of
liability in connection with the disposal of a hazardous
substance.
The Fund shall report annually to the President and the
Congress on its activities. Such reports must contain a
financial statement audited by an independent auditor and an
assessment whether the fees collected by the Fund will be
sufficient to meet its anticipated obligations. In addition,
the Fund is required promptly to report to the President and
the Congress at any time it determines that the fees
collected by the Fund will be insufficient to meet its
anticipated obligations.
The Fund shall be considered an agency of the United States
for purposes of certain criminal and civil penalties relating
to false or fraudulent statements or claims.
Financial statements of the Fund shall be prepared in
accordance with generally accepted accounting procedures, and
shall be audited annually by an independent auditor.
The Inspector General of the Environmental Protection
Agency may conduct audits and investigations of the Fund.
Title VIII provides for an automatic stay of the
commencement or continuation of all actions arising from a
contract of insurance concerning insurance coverage for
eligible costs.
The authority of the Fund to accept requests for
resolutions expires after September 30, 1999, and to make
resolution offers after March 31, 2000.
Obligations or liabilities of the Fund shall not constitute
obligations or liabilities of the United States.-
Funding of Environmental Insurance Resolution Reform
i. proposal
Approximately 70 percent of the Environmental Insurance
Resolution Fund (``the Fund'') would be funded by a
``environmental insurance resolution fee'' that would be
imposed on net premiums written by domestic and foreign
insurers and reinsurers for contracts providing certain U.S.
commercial liability insurance during the period from 1971
through 1985.
Approximately 30 percent of the Fund would be funded
through an ``environmental insurance resolution assessment''
on premiums from certain commercial insurance of U.S. risks
currently written by domestic and foreign insurers.
This proposal would raise revenue of $2.5 billion over five
years, with approximately $1.75 billion attributable to the
environmental insurance resolution fee and $.75 billion
attributable to the environmental insurance resolution
assessment.
ii. environmental insurance resolution fee
The environmental insurance resolution fee (EIRF) would be
determined by multiplying a fee funding rate of 0.19 percent
by the sum of the company's adjusted net premiums written for
contracts or agreements providing (i) insurance, (ii)
proportional reinsurance, and (iii) nonproportional
reinsurance in each case with respect to qualified commercial
coverage (as defined below) of U.S. risks during the fifteen-
year period beginning on January 1, 1971 and ending on
December 31, 1985.\1\ The Secretary of the Treasury will have
the authority to adjust the rate should actual collections
differ from anticipated collections.
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Footnotes at end of article.
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A. Net premiums written for qualified commercial insurance contracts
Net premiums written for qualified commercial insurance
contracts means net premiums written for contracts providing
insurance of qualified commercial coverage of U.S. situs
risks (``qualified commercial contracts'') computed on the
basis of the annual statement approved by the National
Association of Insurance Commissioners (NAIC).
Qualified commercial coverage means insurance coverage that
was, or should have been, categorized in the NAIC annual
statement as ``commercial multiperil'' or ``other liability''
lines of business. However, contracts included in the
``other liability'' line of business that insured only
certain types of coverage unrelated to commercial
liability (and thus could not generate exposure to
environmental insurance claims) would be excluded. For
example, medical malpractice insurance would be an
excluded coverage.
B. Net premiums written for proportional reinsurance of qualified
commercial coverage
Premiums related to proportional reinsurance (i.e., first
dollar pro rata reinsurance) are identified by line of
business. Accordingly, net premiums written for proportional
reinsurance of qualified commercial coverage means net
premiums written for reinsurance on a proportional basis of
qualified commercial coverage computed either on the basis of
the annual statement approved by the National Association of
Insurance Commissioners (NAIC), or on the books and records
of the reinsurer, if the premiums are not allocated in the
annual statement to lines of business.
C. Net premiums written for nonproportional reinsurance of qualified
commercial coverage
When insurance coverage is reinsured on a nonproportional
basis (i.e., reinsurance in excess of a retention by the
ceding company), the reinsurer does not separately report net
premiums written by line of business on the annual statement.
Thus, net premiums written related to such reinsurance would
be determined using a formula based on the insurance
industry's ceded premiums for qualified commercial coverage
from January 1, 1971 through December 31, 1985.
To derive the net premiums written related to
nonproportional reinsurance of qualified commercial coverage,
a reinsurance ratio of 21 percent (or otherwise as determined
by the Secretary) would be multiplied by the net premiums
written, as reported on the NAIC annual statement (or
equivalent computational basis if an NAIC annual statement
was not prepared or nonproportional reinsurance premiums were
not separately identified on the annual statement), for the
nonproportional reinsurance line(s) of business.
D. Adjusted net premiums written
In determining the adjusted net premiums written from 1971
through 1985, the sum of net premiums written for qualified
commercial insurance contracts and for proportional and
nonproportional reinsurance of qualified commercial coverage
for each year during the period would be adjusted by an
inflation factor. This adjustment would restate all premiums
to 1985 dollars.
E. Foreign insurers and reinsurers
If the underwriting income on a contract issued or
reinsured by a foreign person, including a nonresident alien,
from 1971 through 1985 was not effectively connected with a
U.S. trade or business (or attributable to a U.S. permanent
establishment, deemed permanent establishment, or fixed
base), such person would be subject to an environmental
insurance fee, in lieu of the EIRF unless an election
described below were made.
The environmental insurance fee would be imposed on the
aggregate limit of liability on each and any type of casualty
insurance contract insuring or reinsuring U.S. risks (a
``qualified casualty contract''). In the case of proportional
reinsurance, the aggreate limit of liability on the contract
(or qualified portion thereof) would equal the percentage
actually placed through reinsurance. The fee would be
withheld and remitted to the Internal Revenue Service (IRS)
by the U.S. premium payor.
Foreign persons could elect to be subject to the EIRF
instead of the environmental insurance fee. If such an
election were made, the EIRF would apply in the same manner
as it applies to U.S. insurers and reinsurers. The foreign
persons would be required to enter into a closing agreement
with the IRS to ensure collection of the fee.
F. Exemptions from environmental insurance resolution fee
A company would not be subject to the EIRF if it had a de
minimis amount of total net premiums written from January 1,
1971 through December 31, 1985 for qualified commercial
contracts or coverage.
In addition, companies that could demonstrate to the IRS
that they have no potential exposure to claims for
environmental liability based on the type of insurance
contracts written or reinsured during 1971 through 1985 would
not be subject to the EIRF. For example, it is anticipated
that a company whose total net premiums from 1971 through
1985 for qualified commercial contracts were from the
insurance of commercial multiperil risks, medical malpractice
liability risks, and insurance agents' and brokers' liability
risks would be able to demonstrate that it is subject to the
EIRF only on the premiums related to the commercial
multiperil risks. A company seeking to demonstrate that it is
not subject to the EIRF would be required to provide
documentation in its initial report (discussed below).
G. Subsequent adjustments for factors
Any adjustments to the funding rate or the reinsurance
ratio would be applied prospectively in the computation of a
company's EIRF. For example, adjustments could be required
because of the unknown application of the exemptions, outcome
of the elections by foreign insurers and reinsurers not
engaged in a U.S. trade or business, and insufficient
collections.
H. Administration and effective date
The EIRF would be computed for each calendar year, or part
thereof, commencing with the first day of a month beginning
120 days after the date of enactment.
On the first filing with the IRS, each company would be
required to report its net and adjusted net premiums written
for the insurance, proportional reinsurance, and
nonproportional reinsurance of qualified commercial coverage
separately for each calendar year from 1971 through 1985 (the
``initial report''). The initial report would include a
reconciliation for each year of the net premiums written for
the ``other liability'' line of business as reported on the
annual statement to the company's net premiums written for
commercial general liability insurance policies included in
such line of business.
The environmental insurance fee would be imposed on
qualified casualty contract coverage for periods beginning
the first day of a month beginning 120 days after the date of
enactment.
I. EIRF follows business
The EIRF would follow the insurer (or its assets and
liabilities should it cease to exist) in any corporate
reorganization.
If after December 31, 1985, but prior to February 2, 1994,
the company disposed of qualified commercial contracts,
through an assumption reinsurance transaction or loss
portfolio transfer whereby the reinsurer became solely liable
on the contracts transferred, the company will be permitted
to reduce its net premiums written for purposes of computing
the EIRF by the net written premiums generated from the
transferred insurance business from 1971 through 1985,
provided that the company reports the amount of such net
written premiums to the reinsurer and the reinsurer includes
such premiums in its base for purposes of its EIRF
computation.
iii. environmental insurance resolution assessment
The environmental insurance resolution assessment (EIRF)
would be determined by multiplying an assessment funding rate
of 0.30 percent by the company's gross premiums written for
commercial insurance contracts.\2\ The Secretary could
adjust the rate should actual assessment collections
differ from those anticipated.
The EIRA would apply in the same manner with respect to
commercial insurance contracts written by foreign insurers of
U.S. risks and would be collected through withholding in the
case of contracts, the underwriting income on which would not
be effectively connected with a U.S. trade or business (or
attributable to a U.S. permanent establishment, deemed
permanent establishment, or fixed base).
A. Gross premiums written for commercial insurance contracts
Gross premiums written for commercial insurance contracts
means gross premiums written for contracts providing
insurance of commercial coverage. Gross premiums written
would be computed on the basis of the annual statement
approved by the NAIC (as reported in Schedule T) or on an
equivalent basis.
Commercial coverage means insurance coverage that is, or
would be, categorized in the NAIC annual statement as
``commercial multiperil,'' ``fire,'' or ``other liability''
lines of business. However, contracts that insure only
certain types of coverage unrelated to commercial liability
included in the ``other liability'' line of business would be
excluded.
B. Effective date
The EIRA would apply to gross premiums written for
commercial insurance contracts issued after date to
enactment.
iv. funding increase
The Fund would assess annually and report promptly to the
President and Congress whether its collections from the EIRF,
EIRA, and environmental insurance fee will be sufficient to
meet the Fund's anticipated obligations. If there is an
anticipated shortfall, the rates used to determine the EIRF,
EIRA, and environmental insurance fee could be adjusted to
increase revenue in subsequent years by 40 percent so that up
to an additional 4.2 billion could be collected in each of
the third, forth, and fifth years.
v. miscellaneous
Broad anti-abuse rules would be provided, including rules
that would prevent reclassification, recharacterization, or
relabeling of insurance coverage or abusive transfers
of business between affiliates, and any other rules
necessary to carry out the proposal.
The EIRF and EIRA would be deductible for tax purposes
under Section 162 as an ordinary and necessary business
expense and each would be remitted quarterly to the IRS under
administrative rules similar to those that govern the
remittance of excise taxes.
vi. environmental insurance resolution fund exempt from tax
The Fund would be exempt from Federal income tax under
Section 501.
footnotes
\1\ The fee funding rate of .19 percent is estimated to
generate revenue of $1,750 million over five years. This rate
would be adjusted in later years, if necessary.
\2\ The assessment funding rate of .30 percent is estimated
to generate revenue of $750 million over five years. This
rate could be adjusted in later years, if necessary.
Mr. LAUTENBERG. Mr. President, I am pleased to join Chairman Baucus
in sponsoring legislation that will reform the Superfund hazardous
waste site cleanup program and promote economic redevelopment in our
communities.
As chairman of the Senate Superfund Subcommittee, and representing
the State that has the most Superfund sites in the country, I believe
this legislation will provide both environmental and economic benefits
to the communities, businesses, environmentalists, State, and local
governments who are affected by the program--and whose recommendations
are reflected in this bill.
Mr. President, the Environmental Protection Agency has so far
discovered over 1,300 Superfund sites around the Nation. Some 73
million Americans live within 4 miles of those sites, and numerous
studies have shown that people living near these sites suffer
significantly higher risks of cancer, birth defects, and other serious
health problems.
Their problems are only compounded by the economic devastation that
these communities face, as property values are devalued and they are
unable to leave the very sites that are poisoning them.
My home State of New Jersey, unfortunately, has the most Superfund
sites of any State in the Nation. Our industrial legacy has caused
contamination that threatens our fragile drinking water sources and
stalls the economy of our State.
This situation cries out for relief. And the Superfund law was
supposed to provide that relief. But the law has clearly fallen short
of its promise since it was first enacted in 1980.
In the first few years, EPA Administrator Anne Gorsuch resigned and
the head of the EPA Superfund Program, Rita Lavelle, went to jail
because of charges that the Reagan administration was trying to gut the
program.
In 1986, Congress reauthorized the law with numerous improvements,
but only over administration objections which stalled action until the
program's authority lapsed and cleanups were forced to a standstill.
When I assumed the chairmanship of the Senate Superfund Subcommittee
in 1987, I held the first of 23 oversight hearings, revealing major
problems in the implementation of the program. I also commissioned
numerous General Accounting Office and EPA Inspector General
investigations, and pursued with the administration the complaints from
communities and businesses about the way the program was being run.
In 1989, Senator Durenberger and I issued a major report with
numerous recommendations for reforms in the program. Our work fell on
deaf ears, and it is only since last year that the White House and EPA
have shown a willingness and interest in reforming the program.
My hearings and investigations disclosed numerous abuses in the
program.
We found hundreds of instances of municipalities and small businesses
being sued, while EPA stood by idly, as industrial polluters tried to
spread the cost of cleanup to innocent parties who had sent ordinary
household garbage to landfills that later became Superfund sites. I
introduced legislation, which was passed twice by the Senate, to
provide relief to these small businesses and municipalities.
We found lending being chilled and economic redevelopment stalled
because banks feared that they would inherit Superfund liability if
they made a loan to a company and took contaminated property as
collateral. Again, I supported legislation, which passed the Senate, to
provide relief to these lenders, and authored legislation to promote
voluntary cleanups and economic redevelopment of contaminated
properties.
And we found communities being shut out of the cleanup process,
litigation costs skyrocketing, and bickering between the Federal EPA
and the States as they oversaw the program.
Of course, there have been many accomplishments in the Superfund
Program. EPA has secured over $8.3 billion of work from the responsible
parties, completed cleanup at over 217 sites, performed over 3,000
emergency removal actions, and screened some 35,000 sites for potential
Superfund status. In New Jersey, over three-quarters of our 108 sites
are beyond the study phase and half the subsites in the State have been
completely cleaned up.
But the controversy remains.
When I began Superfund reauthorization hearings last year, I
announced four principles that would guide me--and continue to guide
me--as we revamp the law. Those principles are:
First, to speed up cleanups; second, to make the law fairer,
particularly for municipalities and small businesses; third, to spend
more money on cleanups and less on litigation; and fourth, to eliminate
waste, fraud, and abuse from the program.
The legislation that we are introducing today represents a giant step
forward toward accomplishing these four goals.
First, cleanups will be streamlined, speeded up, and made less costly
by using presumptive, cookie-cutter remedies for certain well-studied
types of sites; fostering voluntary cleanups and private market
redevelopment of fallow contaminated land; eliminating duplication that
has led to bickering, delays, and wasteful expense between the State
and Federal Government in overseeing cleanups; and promoting innovative
technology for cleaning up sites more efficiently and cost-effectively.
Second, the bill will cap the liability of small businesses and
municipalities who sent ordinary household garbage to landfills that
became Superfund sites. Municipal owners or operators of Superfund
sites will not be required to pay more than they can afford--so we
don't sacrifice police or fire protection services as a result of the
unfunded mandates imposed by the Federal Government. The bill will also
exempt from liability the truly tiny de micromis parties, and provide a
special, early-out settlement opportunity for small businesses and de
minimis contributors of waste. For the first time, EPA will be
expressly required to give relief to small businesses when it
negotiates these early-out settlements.
Third, the bill will eliminate literally thousands of lawsuits that
often drag on for years as parties try to determine their respective
shares of liability. Those lawsuits will be replaced with a single,
out-of-court forum at each site where a neutral arbitrator will decide
each party's fair share of liability. Nonsettlors will remain subject
to the full force of joint and several liability.
Fourth, the bill will vastly expand the role of communities in
deciding how their sites will get cleaned up. Community working groups,
with broad representation from the local community, will be created to
assure involvement by interested citizens earlier and more often in the
cleanup process. Technical assistance grants, that allow citizens to
hire expert advisors on the cleanup process, will be made available
much earlier in the site investigation process.
And statewide citizen information and access offices will serve as a
clearinghouse and resource center for communities in the State.
Fifth, the bill will incorporate the voluntary cleanup legislation
that I introduced last year and provide relief to lenders, trustees,
and prospective purchasers of these sites so that the private market
will once again invest in these properties and free communities of the
economic stigma of contamination.
I would also like to highlight an area in the bill that is still
evolving. Insurers have testified that they are facing as much as $50
billion of potential Superfund exposure, and need certainty as to the
liability that they are facing. This provision, establishing an
insurance trust fund, was developed by the administration in
discussions with insurers and policyholders. It is an effort to provide
certainty to insurers--something they've said they desire--without
jeopardizing cleanups or infringing on the rights of their
policyholders.
I understand that many insurers and policyholders have informed the
President that these provisions are a strong starting point, and that
they share the goal of ending the wasteful litigation between insurers
and policyholders. I also understand that these insurers view it as
important that any solution to this issue be fair and reasonable for
the affected parties.
All these changes will fundamentally reform the program. EPA has
estimated that these reforms will slash private sector litigation
costs, and cut cleanup costs by one-quarter. But it will not be easy to
enact these changes.
The last time we reauthorized Superfund, the resistance of the
administration delayed enactment of the law until the program lapsed
and cleanups came to a halt. The continuing resistance of the Bush
administration to push for reform created a climate where it was
impossible to improve the situation.
In fact, the only Superfund liability legislation to pass the Senate
apart from the overall reauthorization has been legislation that I
authored to provide relief from frivolous litigation to taxpayers,
small businesses, and municipalities, and another bill that I supported
to relieve lenders of undue Superfund burdens and encourage lending.
So we will need the continuing support of the President, and a
bipartisan effort to bring about the changes that business,
environmentalists, State, and local governments want.
Mr. President, as we plunge into the reauthorization process, we must
never forget what this is all about. People are suffering from cancer,
birth defects, miscarriages, and all the financial and emotional trauma
of being continually exposed to the chemicals that are causing these
problems. We have a duty to reform the system and allow our citizens to
get on with their lives.
I urge my colleagues on both sides of the aisle, and the
environmental and business community, to build on the consensus that
has been developed so far and enact new Superfund law by the end of
this year. With the continuing leadership of Senators Baucus, Chafee,
and Durenberger, whose participation to date has been invaluable, we
will move quickly into the legislative process and strive to produce
the new law. There are 73 million Americans counting on us.
____________________