[Congressional Record Volume 141, Number 154 (Friday, September 29, 1995)]
[Senate]
[Pages S14711-S14738]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. SMITH (for himself, Mr. Chaffee, Mr. Inhofe, Mr.
Kempthorne, Mr. Faircloth, Mr. Bond, Mr. Thomas, Mr. McConnell,
Mr. Warner, Mr. Lott, and Mr. Gregg):
S. 1285. A bill to reauthorize and amend the Comprehensive
Environmental Recovery, Compensation, and Liability Act of 1980, and
for other purposes; to the Committee on Environment and Public Works.
the accelerated cleanup and environmental restoration act of 1995
Mr. SMITH. Mr. President, when the Superfund Program was enacted in
1980, it was expected that only a few hundred sites would need to be
cleaned up, at a relatively modest cost. Today, we know those
expectations were misguided. There are more than 1,300 sites on the
national priorities list, and the EPA has been adding an average of 30-
40 new sites per year. To date, the construction of long-term cleanup
remedies have been completed at fewer than 300 contaminated sites.
The Superfund saga has been running now for 15 years. The cast
includes a bewildering mix of lawyers, bureaucrats, insurers, small
business owners, polluters and others trapped in a tangled web of
retroactive, joint, strict and several liability. The Superfund story
is one of good intentions gone bad while a Government program ran amok.
I am here today to announce that this sorry show will be coming to an
end, soon. My goal this year has been nothing short of a comprehensive,
common sense reform of the Superfund Program.
The Subcommittee on Superfund, Waste Control, and Risk Assessment,
which I chair, held 7 hearings and received testimony from more than 60
witnesses in an effort to formally incorporate a wide variety of views
on the issue of Superfund reform. On June 28, I released a detailed
outline of a Superfund reform plan and asked for comments from
interested parties. I received more than 150 constructive comments and
suggestions.
The bill I am introducing today with Senators Chafee, Bond, Inhofe,
Thomas, Kempthorne, Faircloth, Lott, McConnell, Warner and Gregg
respond to the broad-based concerns and problems with the Superfund
Program. The Accelerated Cleanup and Environmental Restoration Act will
do just what the title says. The legislation will accelerate the pace
of cleanups by reducing cleanup costs, reducing litigation costs, and
providing economic incentives for PRPs to stay on site and get the job
done.
The legislation will establish a fair, cost-effective and balanced
approach to cleaning up hazardous waste sites and returning them to
productive use.
Mr. President, I ask unanimous consent that a title-by-title summary
of legislation be printed in the Record.
Mr. President, I ask unanimous consent that a copy legislation be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1285
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
``Accelerated Cleanup and Environmental Restoration Act of
1995''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--COMMUNITY PARTICIPATION
Sec. 101. Community response organizations; technical assistance
grants; improvement of public participation in the
Superfund decisionmaking process.
TITLE II--STATE ROLE
Sec. 201. Delegation to the States of authorities with respect to
national priorities list facilities.
TITLE III--VOLUNTARY CLEANUP
Sec. 301. Assistance for qualifying State voluntary response programs.
Sec. 302. Brownfield cleanup assistance.
Sec. 303. Treatment of security interest holders and fiduciaries as
owners or operators.
Sec. 304. Federal Deposit Insurance Act amendment.
Sec. 305. Contiguous properties.
Sec. 306. Prospective purchasers and windfall liens.
Sec. 307. Safe harbor innocent landholders.
TITLE IV--SELECTION OF REMEDIAL ACTIONS
Sec. 401. Definitions.
Sec. 402. Selection and implementation of remedial actions.
Sec. 403. Remedy selection methodology.
Sec. 404. Remedy selection procedures.
Sec. 405. Completion of remedial action and delisting.
Sec. 406. Transition rules for facilities currently involved in remedy
selection.
Sec. 407. Judicial review.
Sec. 408. National priorities list.
TITLE V--LIABILITY ALLOCATIONS
Sec. 501. Allocation of liability for multiparty facilities.
Sec. 502. Liability of response action contractors.
Sec. 503. Release of evidence.
Sec. 504. Contribution protection.
Sec. 505. Treatment of religious, charitable, scientific, and
educational organizations as owners or operators.
Sec. 506. Common carriers.
Sec. 507. Limitation on liability for response costs.
TITLE VI--FEDERAL FACILITIES
Sec. 601. Transfer of authorities.
Sec. 602. Department of Energy environmental cleanup requirements.
Sec. 603. Innovative technologies for remedial action at Federal
facilities.
Sec. 604. Federal facility listing.
Sec. 605. Federal facility listing deferral.
Sec. 606. Transfers of uncontaminated property.
TITLE VII--NATURAL RESOURCE DAMAGES
Sec. 701. Restoration of natural resources.
Sec. 702. Assessment of damages.
Sec. 703. Consistency between response actions and resource restoration
standards and alternatives.
Sec. 704. Miscellaneous amendments.
TITLE VIII--MISCELLANEOUS
Sec. 801. Result-oriented cleanups.
Sec. 802. National priorities list.
Sec. 803. Obligations from the fund for response actions.
Sec. 804. Remediation waste.
TITLE IX--FUNDING
Subtitle A--General Provisions
Sec. 901. Authorization of appropriations from the fund.
Sec. 902. Orphan share funding.
Sec. 903. Department of Health and Human Services.
Sec. 904. Limitations on research, development, and demonstration
programs.
Sec. 905. Authorization of appropriations from general revenues.
Sec. 906. Additional limitations.
Sec. 907. Reimbursement of potentially responsible parties.
TITLE I--COMMUNITY PARTICIPATION
SEC. 101. COMMUNITY RESPONSE ORGANIZATIONS; TECHNICAL
ASSISTANCE GRANTS; IMPROVEMENT OF PUBLIC
PARTICIPATION IN THE SUPERFUND DECISIONMAKING
PROCESS.
(a) Amendment.--Section 117 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9617) is amended by striking subsection (e)
and inserting the following:
``(e) Community Response Organizations.--
``(1) Establishment.--The Administrator shall create a
community response organization for a facility--
``(A) if the Administrator determines that a representative
public forum will be helpful in promoting direct, regular,
and meaningful consultation among persons interested in
remedial action at a facility; or
``(B) at the request of--
``(i) 50 individuals residing in, or at least 20 percent of
the population of, the area in which the facility is located;
``(ii) a representative group of the potentially
responsible parties; or
``(iii) any local governmental entity with jurisdiction
over the facility.
``(2) Responsibilities.--A community response organization
shall--
``(A) solicit the views of the local community on various
issues affecting the development and implementation of
remedial actions at the facility;
[[Page S 14712]]
``(B) serve as a conduit of information to and from the
community to appropriate Federal, State, and local agencies
and potentially responsible parties; and
``(C) serve as a representative of the local community
during the remedial action planning and implementation
process.
``(3) Consultation.--The Administrator shall consult with a
community response organization in the preparation of a
remedial action plan for a facility.
``(4) Access to documents.--The Administrator shall provide
a community response organization access to documents in
possession of the Federal Government regarding response
actions at the facility that do not relate to liability and
are not protected from disclosure as confidential business
information.
``(5) Participation by epa, the state, and potentially
responsible parties.--Representatives of the Administrator,
the State, and the potentially responsible parties shall be
given reasonable notice and opportunity to participate in the
community response organization activities and meetings and
shall periodically report to the community response
organization on preparation of the remedial action plan.
``(6) Community response organization input.--
``(A) Communication of information; solicitation of
views.--The Administrator, (and if the remedial action plan
is being prepared or implemented by a party other than the
Administrator, the other party) shall keep the community
response organization informed of progress and solicit the
views of the community response organization during
development and implementation of the remedial action plan.
``(B) Timely submission of comments.--The community
response organization shall provide its comments,
information, and recommendations in a timely manner to the
Administrator (and other party).
``(C) Consensus.--The community response organization shall
attempt to achieve consensus among its members before
providing comments and recommendations to the Administrator
(and other party), but if consensus cannot be reached, the
community response organization shall report or allow
presentation of divergent views.
``(7) Technical assistance grants.--
``(A) Preferred recipient.--If a community response
organization exists for a facility, the community response
organization shall be the preferred recipient of a technical
assistance grant under subsection (f).
``(B) Prior award.--A technical assistance grant concerning
a facility has been awarded prior to establishment of a
community response organization--
``(i) the recipient of the grant shall coordinate its
activities and share information and technical expertise with
the community response organization; and
``(ii) 1 person representing the grant recipient shall
serve on the community response organization.
``(8) Membership.--
``(A) Number.--The Administrator shall select not less than
15 nor more than 20 persons to serve on a community response
organization.
``(B) Notice.--Before selecting members of the community
response organization, the Administrator shall provide a
notice of intent to establish a community response
organization to persons who reside in the local community.
``(C) Represented groups.--The Administrator shall select
members of the community response organization from each of
the following groups of persons:
``(i) Persons who reside or own residential property near
the facility;
``(ii) Persons who, although they may not reside or own
property near the facility, may be adversely affected by a
release from the facility.
``(iii) Persons who are members of the local public health
or medical community and actively practicing in the
community.
``(iv) Representatives of local Indian tribes or Indian
communities, if such tribes or communities may be adversely
affected.
``(v) Local representatives of citizen, environmental, or
public interest groups with members residing in the
community.
``(vi) Representatives of local governments, such as city
or county governments, or both, and any other governmental
unit that regulates land use or land use planning in the
vicinity of the facility.
``(vii) Workers employed at the facility during facility
operation, if readily available.
``(viii) The owner or operator of the facility and other
potentially responsible parties who represent, if
practicable, a balance of such parties' interests.
``(ix) Members of the local business community.
``(D) Proportion.--Local residents shall comprise not less
than 60 percent of the membership of a community response
organization.
``(E) Pay.--Members of a community response organization
shall serve without pay.
``(9) Participation by government representatives.--
Representatives of the Administrator, the Administrator of
the Agency for Toxic Substances and Disease Registry, and the
State, as appropriate, shall participate in community
response organization meetings to provide information and
technical expertise, but shall not be members of the
community response organization.
``(10) Administrative support.--The Administrator shall
provide administrative services and meeting facilities for
community response organizations.
``(11) Faca.--The Federal Advisory Committee Act (5 U.S.C.
App.) shall not apply to a community response organization.
``(f) Technical Assistance Grants.--
``(1) Definitions.--In this subsection:
``(A) Affected citizen group.--The term `affected citizen
group' means a group of 2 or more individuals who may be
affected by the release or threatened release of a hazardous
substance, pollutant, or contaminant at any facility on the
State Registry or the National Priorities List.
``(B) Technical assistance grant.--The term `technical
assistance grant' means a grant made under paragraph (2).
``(2) Authority.--
``(A) In general.--In accordance with a regulation issued
by the Administrator, the Administrator may make grants
available to affected citizen groups.
``(B) Availability of application process.--To ensure that
the application process for a technical assistance grant is
available to all affected citizen groups, the Administrator
shall periodically review the process and, based on the
review, implement appropriate changes to improve
availability.
``(3) Special rules.--
``(A) No matching contribution.--No matching contribution
shall be required for a technical assistance grant.
``(B) Availability in advance.--The Administrator shall
make all or a portion (but not less than $5,000 or 10 percent
of the grant amount, whichever is greater) of the grant
amount available to a grant recipient in advance of the total
expenditures to be covered by the grant.
``(4) Limit per facility.--
``(A) 1 grant per facility.--Not more than 1 technical
assistance grant may be made with respect to a single
facility, but the grant may be renewed to facilitate public
participation at all stages of response action.
``(B) Duration.--The Administrator shall set a limit by
regulation on the number of years for which a technical
assistance grant may be made available based on the duration,
type, and extent of response action at a facility.
``(5) Availability for facilities not yet listed.--Subject
to paragraph (6), 1 or more technical assistance grants shall
be made available to affected citizen groups in communities
containing facilities on the State Registry that have been
proposed for listing but are not yet listed on the National
Priorities List as of the date on which the grant is awarded.
``(6) Funding limit.--
``(A) Percentage of total appropriations.--Not more than 2
percent of the funds made available to carry out this Act for
a fiscal year may be used to make technical assistance
grants.
``(B) Allocation between listed and unlisted facilities.--
Not more than the portion of funds equal to \1/8\ of the
total amount of funds used to make technical assistance
grants for a fiscal year may be used for technical assistance
grants with respect to facilities not listed on the National
Priorities List.
``(7) Funding amount.--
``(A) In general.--The amount of a technical assistance
grant may not exceed $50,000 for a single grant recipient.
``(B) Increase.--The Administrator may increase the amount
of a technical assistance grant, or renew a previous
technical assistance grant, up to an amount not exceeding
$100,000 to reflect the complexity of the response action,
the nature and extent of contamination at the facility, the
level of facility activity, projected total needs as
requested by the grant recipient, the size and diversity of
the affected citizen group, and the ability of the grant
recipient to identify and raise funds from other non-Federal
sources.
``(8) Use of technical assistance grants.--
``(A) Permitted use.--A technical assistance grant may be
used to obtain technical assistance in interpreting
information with regard to--
``(i) the nature of the hazardous substances located at a
facility;
``(ii) facility evaluation;
``(iii) a proposed remedial action plan and final remedial
design for a facility;
``(iv) response actions carried out at the facility; and
``(v) operation and maintenance activities at the facility.
``(B) Prohibited use.--A technical assistance grant may not
be used for the purpose of collecting field sampling data.
``(9) Grant guidelines.--
``(A) In general.--Not later than 90 days after the date of
enactment of this paragraph, the Administrator shall develop
and publish guidelines concerning the management of technical
assistance grants by grant recipients.
``(B) Hiring of experts.--A recipient of a technical
assistance grant shall hire technical experts and other
experts in accordance with the guidelines under subparagraph
(A).
``(g) Improvement of Public Participation in the Superfund
Decisionmaking Process.--
``(1) In general.--
``(A) Meetings and notice.--In order to provide an
opportunity for meaningful public participation in every
significant phase of response activities under this Act, the
Administrator shall provide the opportunity
[[Page S 14713]]
for, and publish notice of, public meetings before or during
performance of--
``(i) a facility evaluation, as appropriate;
``(ii) announcement of a proposed remedial action plan; and
``(iii) completion of a final remedial design.
``(B) Information.--A public meeting under subparagraph (A)
shall be designed to obtain information from the community,
and disseminate information to the community, with respect to
a facility concerning the Administrator's facility activities
and pending decisions.
``(2) Participants and subject.--The Administrator shall
provide reasonable notice of an opportunity for public
participation in meetings in which--
``(A) the participants include Federal officials (or State
officials, if the State is conducting response actions under
a delegated or authorized program or through facility
referral) with authority to make significant decisions
affecting a response action, and any other person (unless all
of such other persons are coregulators that are not
potentially responsible parties or are government
contractors); and
``(B) the subject of the meeting involves discussions
directly affecting--
``(i) a legally enforceable work plan document, or any
amendment to the document, for a removal, facility
evaluation, proposed remedial action plan, final remedial
design, or remedial action for a facility on the National
Priorities List; or
``(ii) the final record of information on which the
Administrator will base a hazard ranking system score for a
facility.
``(3) Limitation.--Nothing in this subsection shall be
construed--
``(A) to provide for public participation in or otherwise
affect any negotiation, meeting, or other discussion that
concerns only the potential liability or settlement of
potential liability of any person, whether prior to or
following the commencement of litigation or administrative
enforcement action;
``(B) to provide for public participation in or otherwise
affect any negotiation, meeting, or other discussion that is
attended only by representatives of the United States (or of
a department, agency, or instrumentality of the United
States) with attorneys representing the United States (or of
a department, agency, or instrumentality of the United
States); or
``(C) to waive, compromise, or affect any privilege that
may be applicable to a communication related to an activity
described in subparagraph (A) or (B).
``(4) Evaluation.--
``(A) In general.--To the extent practicable, before and
during the facility evaluation, the Administrator shall
solicit and evaluate concerns, interests, and information
from the community.
``(B) Procedure.--An evaluation under subparagraph (A)
shall include, as appropriate--
``(i) face-to-face community surveys to identify the
location of private drinking water wells, historic and
current or potential use of water, and other environmental
resources in the community;
``(ii) a public meeting;
``(iii) written responses to significant concerns; and
``(iv) other appropriate participatory activities.
``(5) Views and preferences.--
``(A) Solicitation.--During the facility evaluation study,
the Administrator shall solicit the views and preferences of
the community on the remediation and disposition of hazardous
substances or pollutants or contaminants at the facility.
``(B) Consideration.--The views and preferences of the
community shall be described in the facility evaluation study
and considered in the screening of remedial alternatives for
the facility.
``(6) Alternatives.--Members of the community may propose
remedial action alternatives, and the Administrator shall
consider such alternatives in the same manner as the
Administrator considers alternatives proposed by potentially
responsible parties.
``(7) Information.--
``(A) The community.--The Administrator, with the
assistance of the community response organization under
subsection (g) if there is one, shall provide information to
the community and seek comment from the community throughout
all significant phases of the response action at the
facility.
``(B) Technical staff.--The Administrator shall ensure that
information gathered from the community during community
outreach efforts reaches appropriate technical staff in a
timely and effective manner.
``(C) Responses.--The Administrator shall ensure that
reasonable written or other appropriate responses will be
made to such information.
``(8) Nonprivileged information.--Throughout all phases of
response action at a facility, the Administrator shall make
all nonprivileged information relating to a facility
available to the public for inspection and copying without
the need to file a formal request, subject to reasonable
service charges as appropriate.
``(9) Presentation.--
``(A) Documents.--
``(i) In general.--The Administrator, in carrying out
responsibilities under this Act, shall ensure that the
presentation of information on risk is complete and
informative.
``(ii) Risk.--To the extent feasible, documents prepared by
the Administrator and made available to the public that
purport to describe the degree of risk to human health shall,
at a minimum, state--
``(I) the upperbound and lowerbound estimates of the
incremental risk;
``(II) the population or populations addressed by any
estimates of the risk;
``(III) the expected risk or central estimate of the risk
for the specific population;
``(IV) the reasonable range or other description of
uncertainties in the assessment process; and
``(V) the assumptions that form the basis for any estimates
of such risk posed by the facility and a brief explanation of
the assumptions.
``(B) Comparisons.--The Administrator, in carrying out
responsibilities under this Act, shall provide comparisons of
the level of risk from hazardous substances found at the
facility to comparable levels of risk from those hazardous
substances ordinarily encountered by the general public
through other sources of exposure.
``(10) Requirements.--
``(A) Lengthy removal actions.--Notwithstanding any other
provision of this subsection, in the case of a removal action
taken in accordance with section 104 that is expected to
require more than 180 days to complete, and in any case in
which implementation of a removal action is expected to
obviate or that in fact obviates the need to conduct a long-
term remedial action, the Administrator shall, to the maximum
extent practicable, allow for public participation consistent
with paragraph (1).
``(B) Other removal actions.--In the case of all other
removal actions, the Administrator may provide the community
with notice of the anticipated removal action and a public
comment period, as appropriate.''.
(b) Issuance of Guidelines.--The Administrator of the
Environmental Protection Agency shall issue guidelines under
section 117(e)(9) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as added
by subsection (a), not later than 90 days after the date of
enactment of this Act.
TITLE II--STATE ROLE
SEC. 201. DELEGATION TO THE STATES OF AUTHORITIES WITH
RESPECT TO NATIONAL PRIORITIES LIST FACILITIES.
(a) In General.--Title I of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.), as amended by section 302, is amended by
adding at the end the following:
``SEC. 135. DELEGATION TO THE STATES OF AUTHORITIES WITH
RESPECT TO NATIONAL PRIORITIES LIST FACILITIES.
``(a) Definitions.--In this section:
``(1) Comprehensive delegation state.--The term
`comprehensive delegation State', with respect to a facility,
means a State to which the Administrator has delegated
authority to perform all of the categories of delegable
authority.
``(2) Delegable authority.--The term `delegable authority'
means authority to perform (or ensure performance of) all of
the authorities included in any 1 or more of the categories
of authority:
``(A) Category a.--All authorities necessary to perform
technical investigations, evaluations, and risk analyses,
including--
``(i) a preliminary assessment or facility inspection under
section 104;
``(ii) facility characterization under section 104;
``(iii) a remedial investigation under section 104;
``(iv) A facility-specific risk evaluation under section
129(b)(4); and
``(v) any other authority identified by the Administrator
under subsection (b).
``(B) Category b.--All authorities necessary to perform
alternatives development and remedy selection, including--
``(i) a feasibility study under section 104; and
``(ii)(I) remedial action selection under section 121
(including issuance of a record of decision); or
``(II) remedial action planning under section 129(b)(5);
and
``(iii) any other authority identified by the Administrator
under subsection (b).
``(C) Category c.--All authorities necessary to perform
remedial design, including--
``(i) remedial design under section 121; and
``(ii) any other authority identified by the Administrator
under subsection (b).
``(D) Category d.--All authorities necessary to perform
remedial action and operation and maintenance, including--
``(i) a removal under section 104;
``(ii) a remedial action under section 104 or section 10
(a) or (b);
``(iii) operation and maintenance under section 104(c); and
``(iv) any other authority identified by the Administrator
under subsection (b).
``(E) Category e.--All authorities necessary to perform
information collection and allocation of liability,
including--
``(i) information collection activity under section 104(e);
``(ii) allocation of liability under section 132;
``(iii) a search for potentially responsible parties under
section 104 or 107;
``(iv) settlement under section 122; and
``(v) any other authority identified by the Administrator
under subsection (b).
``(F) Category f.--All authorities necessary to perform
enforcement, including--
``(i) issuance of an order under section 106(a);
[[Page S 14714]]
``(ii) a response action cost recovery under section 107;
``(iii) imposition of a civil penalty or award under
section 109 (a)(1)(D) or (b)(4);
``(iv) settlement under section 122; and
``(v) any other authority identified by the Administrator
under subsection (b).
``(3) Delegated state.--The term `delegated State' means a
State to which delegable authority has been delegated under
subsection (c), except as may be provided in a delegation
agreement in the case of a limited delegation of authority
under subsection (c)(5).
``(4) Delegated authority.--The term `delegated authority'
means a delegable authority that has been delegated to a
delegated State under this section.
``(5) Delegated facility.--The term `delegated facility'
means a non-federal listed facility with respect to which a
delegable authority has been delegated to a State under this
section.
``(6) Noncomprehensive delegation state.--The term
`noncomprehensive delegation State', with respect to a
facility, means a State to which the Administrator has
delegated authority to perform fewer than all of the
categories of delegable authority.
``(7) Nondelegable authority.--The term `nondelegable
authority' means authority to--
``(A) make grants to community response organizations under
section 117; and
``(B) conduct research and development activities under any
provision of this Act.
``(8) Non-federal listed facility.--The term `non-federal
listed facility' means a facility that--
``(A) is not owned or operated by and is not under the
jurisdiction, custody, or control of a department, agency, or
instrumentality of the United States in any branch of the
Government; and
``(B) is listed on the National Priorities List.
``(b) Identification of Delegable Authorities.--
``(1) In general.--The Secretary shall by regulation
identify all of the authorities of the Administrator that
shall be included in a delegation of any category of
delegable authority described in subsection (a)(2).
``(2) Limitation.--The Administrator shall not identify a
nondelegable authority for inclusion in a delegation of any
category of delegable authority.
``(c) Delegation of Authority.--
``(1) In general.--On application by a State, the
Administrator shall delegate authority to perform 1 or more
delegable authorities with respect to 1 or more non-Federal
listed facilities in the State.
``(2) Application.--An application under paragraph (1)
shall--
``(A) identify each non-Federal listed facility for which
delegation is requested;
``(B) identify each delegable authority that is requested
to be delegated for each non-Federal listed facility for
which delegation is requested; and
``(C) certify that the State has adequate legal authority,
financial and personnel resources, organization, and
expertise to perform the requested delegable authority.
``(3) Approval of application.--
``(A) In general.--Not later than 60 days after receiving
an application under paragraph (2) by a State that is
authorized to administer and enforce the corrective action
requirements of a hazardous waste program under section 3006
of the Solid Waste Disposal Act (42 U.S.C. 6926), and not
later than 120 days after receiving an application from any
other State, the Administrator shall--
``(i) issue a notice of approval of the application
(including approval or disapproval regarding any or all of
the facilities with respect to which a delegation of
authority is requested or with respect to any or all of the
authorities that are requested to be delegated); or
``(ii) if the Administrator determines that the State does
not have adequate legal authority, financial and personnel
resources, organization, or expertise to administer and
enforce any of the requested delegable authority, issue a
notice of disapproval, including an explanation of the basis
for the determination.
``(B) Failure to act.--If the Administrator does not issue
a notice of approval or notice of disapproval of all or any
portion of an application within the applicable time period
under subparagraph (A), the application shall be deemed to
have been granted.
``(C) Resubmission of application.--
``(i) In general.--If the Administrator disapproves an
application under paragraph (1), the State may resubmit the
application at any time after receiving the notice of
disapproval.
``(ii) Failure to act.--If the Administrator does not issue
a notice of approval or notice of disapproval of a
resubmitted application within the applicable time period
under subparagraph (A), the resubmitted application shall be
deemed to have been granted.
``(D) No additional terms or conditions.--The Administrator
shall not impose any term or condition on the approval of an
application that meets the requirements stated in paragraph
(2) (except that any technical deficiencies in the
application be corrected).
``(E) Judicial review.--
``(i) In general.--A disapproval of a resubmitted
application shall be subject to judicial review under section
113(b).
``(ii) Standard of review.--In a proceeding on review of a
disapproval of a resubmitted application, the court shall,
notwithstanding section 706(2)(E) of title 5, United States
Code, hold unlawful and set aside actions, findings, and
conclusions found to be unsupported by substantial evidence.
``(4) Delegation agreement.--On approval of a delegation of
authority under this section, the Administrator and the
delegated State shall enter into a delegation agreement that
identifies each category of delegable authority that is
delegated with respect to each delegated facility.
``(5) Limited delegation.--
``(A) In general.--In the case of a State that does not
meet the requirements of paragraph (2)(C) the Administrator
may delegate to the State limited authority to perform,
ensure the performance of, or supervise or otherwise
participate in the performance of 1 or more delegable
authorities, as appropriate in view of the extent to which
the State has the required legal authority, financial and
personnel resources, organization, and expertise.
``(B) Special provisions.--In the case of a limited
delegation of authority to a State under subparagraph (A),
the Administrator shall specify the extent to which the State
shall be considered to be a delegated State for the purposes
of this Act.
``(d) Performance of Delegated Authorities.--
``(1) In general.--A delegated State shall have sole
authority (except as provided in paragraph (6)(B), subsection
(e)(4), and subsection (g)) to perform a delegated authority
with respect to a delegated facility.
``(2) Agreements.--A delegated State may enter into an
agreement with a political subdivision of the State, an
interstate body comprised of that State and another delegated
State or States, or a combination of such subdivisions or
interstate bodies, providing for the performance of any
category of delegated authority with respect to a delegated
facility in the State if the parties to the agreement agree
in the agreement to undertake response actions that are
consistent with this Act.
``(3) Compliance with act.--
``(A) Noncomprehensive delegation states.--A
noncomprehensive delegation State shall implement each
applicable provision of this Act (including regulations and
guidance issued by the Administrator) so as to perform each
delegated authority with respect to a delegated facility in
the same manner as would the Administrator with respect to a
facility that is not a delegated facility.
``(B) Comprehensive delegation states.--
``(i) In general.--A comprehensive delegation State shall
implement applicable provisions of this Act or of similar
provisions of State law in a manner comporting with State
policy, so long as the remedial action that is selected
protects human health and the environment to the same extent
as would a remedial action selected by the Administrator
under section 121.
``(ii) Costlier remedial action.--
``(I) In general.--A delegated State may select a remedial
action for a delegated facility that has a greater response
cost (including operation and maintenance costs) than the
response cost for a remedial action that would be selected by
the Administrator under section 121, if the State pays for
the difference in cost.
``(II) No cost recovery.--If a delegated State selects a
more costly remedial action under subclause (I), the State
shall not be entitled to seek cost recovery under this Act or
any other Federal or State law from any other person for the
difference in cost.
``(4) Judicial review.--
``(A) In general.--An order that is issued under section
106 by a delegated State with respect to a delegated facility
shall be subject to judicial review under section 113(b).
``(B) Standard of review.--In a proceeding on review of an
order under subparagraph (A), the court shall,
notwithstanding section 706(2)(E) of title 5, United States
Code, hold unlawful and set aside actions, findings, and
conclusions found to be unsupported by substantial evidence.
``(5) Delisting of national priorities list facilities.--
``(A) Delisting.--After notice and an opportunity for
public comment, a delegated State may remove from the
National Priorities List all or part of a delegated
facility--
``(i) if the State makes a finding that no further action
is needed to be taken at the facility (or part of the
facility) under any applicable law to protect human health
and the environment consistent with section 121(a) (1) and
(2);
``(ii) with the concurrence of the potentially responsible
parties, if the State has an enforceable agreement to perform
all required remedial action and operation and maintenance
for the facility or if the cleanup will proceed at the
facility under the Solid Waste Disposal Act (42 U.S.C 6901 et
seq.); or
``(iii) if the State is a comprehensive delegation State
with respect to the facility.
``(B) Effect of delisting.--A delisting under subparagraph
(A)(iii) shall not affect--
``(i) the authority or responsibility of the State to
complete remedial action and operation and maintenance; or
``(ii) the eligibility of the State for funding under this
Act.
``(C) No relisting.--The Administrator shall not relist on
the National Priorities List a facility or part of a facility
that has been removed from the National Priorities List under
subparagraph (A).
``(6) Cost recovery.--
[[Page S 14715]]
``(A) Deposit in fund.--Any response costs recovered from a
responsible party by a delegated State for a delegated
facility under section 107 shall be deposited in the
Hazardous Substances Superfund established under subchapter A
of chapter 98 of the Internal Revenue Code of 1986.
``(B) Recovery by the administrator.--
``(i) In general.--The Administrator may take action under
section 107 to recover response costs from a responsible
party for a delegated facility if the delegated State
notifies the Administrator in writing that the delegated
State does not intend to pursue action for recovery of
response costs under section 107 against the responsible
party.
``(ii) No further action.--If the Administrator takes
action against a potentially responsible party under section
107, the delegated State may not take any other action for
recovery of response costs under this Act or any other
Federal or State law.
``(e) Federal Responsibilities and Authorities.--
``(1) Review use of funds.--
``(A) In general.--The Administrator shall review the
certification submitted by the Governor under subsection
(f)(8) not later than 120 days after the date of its
submission.
``(B) Finding of use of funds inconsistent with this act.--
If the Administrator finds that funds were used in a manner
that is inconsistent with this Act, the Administrator shall
notify the Governor in writing not later than 120 days after
receiving the Governor's certification.
``(C) Explanation.--not later than 30 days after receiving
a notice under subparagraph (B), the Governor shall--
``(i) explain why the Administrator's finding is in error;
or
``(ii) explain to the Administrator's satisfaction how any
misapplication or misuse of funds will be corrected.
``(D) Failure to explain.--If the Governor fails to make an
explanation under subparagraph (C) to the Administrator's
satisfaction, the Administrator may request reimbursement of
such amount of funds as the Administrator finds was
misapplied or misused.
``(E) Withholding of further funds; civil action.--If the
Administrator fails to obtain reimbursement from the State
within a reasonable period of time, the Administrator may,
after 30 days' notice to the State, bring a civil action in
United States district court to recover from the delegated
State any funds from that were advanced for a purpose or were
used for a purpose or in a manner that is inconsistent with
this Act.
``(2) Withdrawal of delegation of authority.--
``(A) Delegated states.--If at any time the Administrator
finds that contrary to a certification made under subsection
(c)(2), a delegated State--
``(i) lacks the required financial and personnel resources,
organization, or expertise to administer and enforce the
requested delegated authorities;
``(ii) does not have adequate legal authority to request
and accept delegation; or
``(iii) is failing to materially carry out the State's
delegated authorities,
the Administrator may withdraw a delegation of authority with
respect to a delegated facility after providing notice and
opportunity to correct deficiencies under subparagraph (D).
``(B) States with limited delegations of authority.--If the
Administrator finds that a State to which a limited
delegation of authority was made under subsection (c)(5) has
materially breached the delegation agreement, the
Administrator may withdraw the delegation after providing
notice and opportunity to correct deficiencies under
subparagraph (D).
``(C) No withdrawal with 1 year of approval.--The
Administrator shall not withdraw a delegation of authority
within 1 year after the date on which the application for
delegation is approved (including approval under subsection
(b)(3) (B) or (C)(ii)).
``(D) Notice and opportunity to correct.--If the
Administrator proposes to withdraw a delegation of authority
for any or all delegated facilities, the Administrator shall
give the State written notice and allow the State at least 90
days after the date of receipt of the notice to correct the
deficiencies cited in the notice.
``(E) Failure to correct.--If the Administrator finds that
the deficiencies have not been corrected within the time
specified in a notice under subparagraph (D), the
Administrator may withdraw delegation of authority after
providing public notice and opportunity for comment.
``(F) Judicial review.--
``(i) In general.--A decision of the Administrator to
withdraw a delegation of authority shall be subject to
judicial review under section 113(b).
``(ii) Standard of review.--In a proceeding on review of a
decision by the Administrator to withdraw a delegation of
authority, the court shall, notwithstanding section 706(2)(E)
of title 5, United States Code, hold unlawful and set aside
actions, findings, and conclusions found to be unsupported by
substantial evidence.
``(3) Rule of construction.--Nothing in this section shall
be construed to affect the authority of the Administrator
under this Act to--
``(A) take a response action at a facility listed on the
National Priorities List in a State to which a delegation of
authority has not been made under this section or at a
facility not included in a delegation of authority; or
``(B) perform a delegable authority with respect to a
facility that is not included among the authorities delegated
to a State with respect to the facility.
``(4) Emergency removal.--
``(A) Notice.--Before performing an emergency removal
action under section 104 at a delegated facility, the
Administrator shall notify the delegated States of the
Administrator's intention to perform the removal.
``(B) State action.--If, after receiving a notice under
subparagraph (A), the delegated State notifies the
Administrator within 48 hours that the State intends to take
action to perform an emergency removal at the delegated
facility, the Administrator shall not perform the emergency
removal action unless the Administrator determines that the
delegated State has failed to act within a reasonable period
of time to perform the emergency removal.
``(C) Immediate and significant danger.--If the
Administrator finds that an emergency at a delegated facility
poses an immediate and significant danger to human health or
the environment, the Administrator shall not be required to
provide notice under subparagraph (A).
``(5) Prohibited actions.--Except as provided in
subsections (d)(6)(B), (e)(4), and (g), the President, the
Administrator, and the Attorney General shall not take any
action under section 104, 106, 107, 109, 121, or 122 with
respect to a delegated facility.
``(f) Funding.--
``(1) In general.--The Administrator shall provide grants
to delegated States to carry out this section.
``(2) No claim against fund.--Notwithstanding any other
law, funds to be granted under this subsection shall not
constitute a claim against the Fund.
``(3) Determination of costs on a facility-specific
basis.--The Administrator shall--
``(A) determine--
``(i) the delegable authorities the costs of performing
which it is practicable to determine on a facility-specific
basis; and
``(ii) the delegable authorities the costs of performing
which it is not practicable to determine on a facility-
specific basis; and
``(B) publish a list describing the delegable authorities
in each category.
``(4) Facility-specific grants.--The costs described in
paragraph (3)(A)(i) shall be funded as such costs arise with
respect to each delegated facility.
``(5) Non-facility-specific grants.--
``(A) In general.--The costs described in paragraph
(1)(A)(ii) shall be funded through non-facility-specific
grants under this paragraph.
``(B) Formula.--The Administrator shall establish a formula
under which funds available for non-facility-specific grants
shall be allocated among the delegated States, taking into
consideration--
``(i) the cost of administering the delegated authority;
``(ii) the number of sites for which the State has been
delegated authority;
``(iii) the types of activities for which the State has
been delegated authority;
``(iv) the number of facilities within the State that are
listed on the National Priorities List or are delegated
facilities under section 127(d)(5);
``(v) the number of other high priority facilities within
the State;
``(vi) the need for the development of the State program;
``(vii) the need for additional personnel;
``(viii) the amount of resources available through State
programs for the cleanup of contaminated sites; and
``(ix) the benefit to human health and the environment of
providing the funding.
``(6) Permitted use of grant funds.--A delegated State may
use grant funds to take any action or perform any duty
necessary to implement the authority delegated to the State
under this section.
``(7) Cost share.--
``(A) Assurance.--A delegated State to which a grant is
made under this subsection shall provide an assurance that
the State will pay any amount required under section
104(c)(3).
``(B) Prohibited use of grant funds.--A delegated State to
which a grant is made under this subsection may not use grant
funds to pay any amount required under section 104(c)(3).
``(8) Certification of use of funds.--Not later than 1 year
after the date on which a delegated State receives funds
under this subsection, and annually thereafter, the Governor
of the State shall submit to the Administrator--
``(A) a certification that the State has used the funds in
accordance with the requirements of this Act; and
``(B) information describing the manner in which the State
used the funds.
``(g) Cooperative Agreements.--Nothing in this section
shall affect the authority of the Administrator under section
104(d)(1) to enter into a cooperative agreement with a State,
a political subdivision of a State, or an Indian tribe to
carry out actions under section 104.
``(h) Non-National Priorities List Facilities.--
``(1) Definitions.--In this subsection, the term `non-
National Priorities List facility' means a facility that is
not, and never has been, listed on the National Priorities
List
[[Page S 14716]]
and that is not owned or operated by a department, agency, or
instrumentality of the United States.
``(2) Finality.--
``(A) In general.--Except as provided in subparagraph (B),
a determination that a response action at a non-National
Priorities List facility or portion of a non-National
Priorities List facility is complete under State law is
final, and the facility shall not be subject to further
response action notwithstanding any provision of this Act or
any other Federal law.
``(B) Exception for emergency removals.--The Administrator
may conduct an emergency removal action under the authority
of section 104 subject to the notice requirement of section
135(e)(4) at a non-National Priorities List facility.
``(3) Prohibition.--The President shall not take any action
under section 106 at a non-National Priorities List
facility.''.
(b) Uses of Fund.--Section 111(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9611(a)) is amended by inserting after
paragraph (6) the following:
``(7) Grants to delegated states.--Making a grant to a
delegated State under section 135(f).''.
(c) Relationship to Other Laws.--
(1) In general.--Section 114 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9614) is amended--
(A) by striking subsection (a); and
(B) by redesignating subsections (b), (c), and (d) as
subsections (a), (b), and (c), respectively.
(2) Conforming amendment.--Section 101(37)(B) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601(37)(B)) is amended by
striking ``section 114(c)'' and inserting ``section 114(b)''.
TITLE III--VOLUNTARY CLEANUP
SEC. 301. ASSISTANCE FOR QUALIFYING STATE VOLUNTARY RESPONSE
PROGRAMS.
(a) Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601) is amended by adding at the end the following:
``(39) Qualifying state voluntary response program.--The
term `qualifying State voluntary response program' means a
State program that includes the elements described in section
133(b).''.
(b) Qualifying State Voluntary Response Programs.--Title I
of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.), as
amended by section 501, is amended by adding at the end the
following:
``SEC. 133. QUALIFYING STATE VOLUNTARY RESPONSE PROGRAMS.
``(a) Assistance to States.--The Administrator shall
provide technical and other assistance to States to establish
and expand qualifying State voluntary response programs that
include the elements listed in subsection (b).
``(b) Elements.--The elements of a qualifying State
voluntary response program are the following:
``(1) Opportunities for technical assistance for voluntary
response actions.
``(2) Adequate opportunities for public participation,
including prior notice and opportunity for comment, in
appropriate circumstances, in selecting response actions.
``(3) Streamlined procedures to ensure expeditious
voluntary response actions.
``(4) Oversight and enforcement authorities that are
adequate to ensure that--
``(A) voluntary response actions are protective of human
health and the environment and are conducted in accordance
with an appropriate response action plan; and
``(B) if the person conducting the voluntary response
action fails to complete the necessary response activities,
including operation and maintenance or long-term monitoring
activities, the necessary response activities are completed.
``(5) Mechanisms for approval of a voluntary response
action plan.
``(6) A requirement for certification or similar
documentation from the State to the person conducting the
voluntary response action indicating that the response is
complete.''.
(c) Funding.--Section 111(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9611), as amended by section 201(b), is
amended by inserting after paragraph (7) the following:
``(8) Qualifying state voluntary response programs.--For
assistance to States to establish and administer qualifying
State voluntary response programs, during the first 5 full
fiscal years following the date of enactment of this
subparagraph, in a total amount to all States that is not
less than 2 percent and not more than 5 percent of the amount
available in the Fund for each such fiscal year, distributed
among each of the States that notifies the Administrator of
the State's intent to establish a qualifying State voluntary
response program and each of the States with a qualifying
State voluntary response program in the amount that is equal
to the total amount multiplied by a fraction--
``(A) the numerator of which is the number of facilities in
the State that, as of September 29, 1995, were listed on the
Comprehensive Environmental Response, Compensation, and
Liability Information System (not including facilities that
are listed on the National Priorities List); and
``(B) the denominator of which is the total number of such
facilities in the United States.''.
SEC. 302. BROWNFIELD CLEANUP ASSISTANCE.
Title I of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), as amended by section 301(b), is amended by adding at
the end the following:
``SEC. 134. BROWNFIELD CLEANUP ASSISTANCE
``(a) Definitions.--In this section:
``(1) Administrative cost.--The term `administrative cost'
does not include the cost of--
``(A) investigation and identification of the extent of
contamination;
``(B) design and performance of a response action; or
``(C) monitoring of natural resources.
``(2) Brownfield facility.--The term `brownfield facility'
means--
``(A) a parcel of land that contains or at any time
contained abandoned or underused commercial or industrial
property, the expansion or redevelopment of which is
complicated by the presence or potential presence of a
hazardous substance; but
``(B) does not include--
``(i) a facility that is the subject of a removal or
planned removal under title I;
``(ii) a facility that is listed or has been proposed for
listing on the National Priorities List or that has been
delisted under section 135(d)(5);
``(iii) a facility that is subject to corrective action
under section 3004(u) or 3008(h) of the Solid Waste Disposal
Act (42 U.S.C. 6924(u) or 6928(h)) at the time at which an
application for a grant or loan concerning the facility is
submitted under this section;
``(iv) a land disposal unit with respect to which--
``(I) a closure notification under subtitle C of the Solid
Waste Disposal Act (42 U.S.C. 6921 et seq.) has been
submitted; and
``(II) closure requirements have been specified in a
closure plan or permit;
``(v) a facility with respect to which an administrative
order on consent or judicial consent decree requiring cleanup
has been entered into by the United States under 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. 300f et seq.);
``(vi) a facility that is owned or operated by a
department, agency, or instrumentality of the United States;
or
``(vii) a portion of a facility, for which portion,
assistance for response activity has been 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) Eligible entity.--The term `eligible entity' means--
``(A) a general purpose unit of local government;
``(B) a land clearance authority or other quasi-
governmental entity that operates under the supervision and
control of or as an agent of a general purpose unit of local
government;
``(C) a regional council or group of general purpose units
of local government; and
``(D) an Indian tribe.
``(b) Brownfield Cleanup Assistance Program.--
``(1) Establishment of program.--The Administrator shall
establish a program to provide interest-free loans for the
site characterization and assessment of brownfield
facilities.
``(2) Assistance for site characterization and
assessment.--
``(A) In general.--On approval of an application made by an
eligible entity, the Administrator may make interest-free
loans out of the Fund to the eligible entity to be used for
the site characterization and assessment of 1 or more
brownfield facilities.
``(B) Appropriate inquiry.--A site characterization and
assessment carried out with the use of a loan under
subparagraph (A) shall be performed in accordance with
section 101(35)(B).
``(C) Repayment.--
``(i) In general.--An eligible entity that receives a loan
under subparagraph (A) shall agree to repay the full amount
of the loan within 10 years after the date on which the loan
is made.
``(ii) Deposit in fund.--Repayments on a loan under
subparagraph (A) shall be deposited in the Fund.
``(3) Hazardous substance superfund.--Notwithstanding
section 111 of this Act or any provision of the Superfund
Amendments and Reauthorization Act of 1986 (100 Stat. 1613),
there is authorized to be appropriated out of the Fund
$15,000,000 for each of the first 5 fiscal years beginning
after the date of enactment of this section, to be used for
making interest-free loans under paragraph (2).
``(4) Maximum loan amount.--A loan under subparagraph (A)
shall not exceed, with respect to each brownfield facility
covered by the loan, $100,000 for any fiscal year or $200,000
in total.
``(5) Sunset.--No amount shall be available from the Fund
for purposes of this section after the fifth fiscal year
after the date of enactment of this section.
[[Page S 14717]]
``(6) Prohibition.--No part of a loan under this section
may be used for payment of penalties, fines, or
administrative costs.
``(7) Audits.--The Inspector General of the Environmental
Protection Agency shall audit all loans made under paragraph
(2) to ensure that all funds are used for the purposes
described in this section and that all loans are repaid in
accordance with paragraph (2).
``(8) Agreements.--Each loan made under this section shall
be subject to an agreement that--
``(A) requires the eligible entity to comply with all
applicable State laws (including regulations);
``(B) requires that the eligible entity shall use the loan
exclusively for purposes specified in paragraph (2); and
``(C) contains such other terms and conditions as the
Administrator determines to be necessary to protect the
financial interests of the United States and to carry out the
purposes of this section.
``(9) Leveraging.--An eligible entity that receives a loan
under paragraph (1) may use the loaned funds for part of a
project at a brownfield facility for which funding is
received from other sources, but the loan funds shall be used
only for the purposes described in paragraph (2).
``(c) Loan Applications.--
``(1) In general.--Any eligible entity may submit an
application to the Administrator, through a regional office
of the Environmental Protection Agency and in such form as
the Administrator may require, for a loan under this section
for 1 or more brownfield facilities.
``(2) Application requirements.--An application for a loan
under this section shall include--
``(A) an identification of each brownfield facility for
which the loan is sought and a description of the
redevelopment plan for the area or areas in which each
facility is located, including a description of the nature
and extent of any known or suspected environmental
contamination within the area; and
``(B) an analysis that demonstrates the potential of the
grant to stimulate economic development on completion of the
planned response action, including a projection of the number
of jobs expected to be created at the facility after
remediation and redevelopment and, to the extent feasible, a
description of the type and skill level of the jobs and a
projection of the increases in revenues accruing to Federal,
State, and local governments from the jobs.
``(3) Approval.--
``(A) Initial loans.--On or about March 30 and September 30
of the first fiscal year following the date of enactment of
this section, the Administrator shall make loans under this
section to eligible entities that submit applications before
those dates that the Administrator determines have the
highest rankings under ranking criteria established under
paragraph (4).
``(B) Subsequent loans.--Beginning with the second fiscal
year following the date of enactment of this section, the
Administrator shall make an annual evaluation of each
application received during the prior fiscal year and make
loans under this section to eligible entities that submit
applications during the prior year that the Administrator
determines have the highest rankings under the ranking
criteria established under paragraph (4).
``(4) Ranking criteria.--The Administrator shall establish
a system for ranking loan applications that includes the
following criteria:
``(A) The extent to which a loan will stimulate the
availability of other funds for environmental remediation and
subsequent redevelopment of the area in which the brownfield
facilities are located.
``(B) The potential of the development plan for the area in
which the brownfield facilities are located to stimulate
economic development of the area on completion of the
cleanup, such as the following:
``(i) The relative increase in the estimated fair market
value of the area as a result of any necessary response
action.
``(ii) The potential of a loan to create new or expand
existing business and employment opportunities (particularly
full-time employment opportunities) on completion of any
necessary response action.
``(iii) The estimated additional tax revenues expected to
be generated by economic redevelopment in the area in which a
brownfield facility is located.
``(iv) The estimated extent to which a loan would
facilitate the identification of or facilitate a reduction of
health and environmental risks.
``(v) The financial involvement of the State and local
government in any response action planned for a brownfield
facility and the extent to which the response action and the
proposed redevelopment is consistent with any applicable
State or local community economic development plan.
``(vi) The extent to which the site characterization and
assessment or response action and subsequent development of a
brownfield facility involves the active participation and
support of the local community.
``(vii) Such other factors as the Administrator considers
appropriate to carry out the purposes of this section.''.
SEC. 303. TREATMENT OF SECURITY INTEREST HOLDERS AND
FIDUCIARIES AS OWNERS OR OPERATORS.
(a) Definition of Owner or Operator.--Section 101 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601), as amended by section
301(a), is amended--
(1) in paragraph (20)--
(A) in subparagraph (A) by striking the second sentence;
and
(B) by adding at the end the following:
``(E) Security interest holders.--
``(i) In general.--The term `owner or operator' does not
include a person that, without participating in the
management of a vessel or facility, holds an indicium of
ownership primarily to protect the person's security interest
in a vessel or facility.
``(ii) Participating in management.--A security interest
holder--
``(I) shall be considered to be participating in management
of a vessel or facility only if the security interest holder
has undertaken--
``(aa) responsibility for the hazardous substance handling
or disposal practices of the vessel or facility; or
``(bb) overall management of the vessel or facility
encompassing day-to-day decisionmaking over environmental
compliance or over an operational function (including
functions such as those of a plant manager, operations
manager, chief operating officer, or chief executive
officer), as opposed to financial and administrative aspects,
of a vessel or facility; and
``(II) shall not be considered to be participating in
management solely on the ground that the security interest
holder--
``(aa) serves in a capacity or has the ability to influence
or the right to control the operation of a vessel or facility
if that capacity, ability, or right is not exercised;
``(bb) acts, or causes or requires another person to act,
to comply with an applicable law or to respond lawfully to
disposal of a hazardous substance;
``(cc) performs an act or omits to act in any way with
respect to a vessel or facility prior to the time at which a
security interest is created in a vessel or facility;
``(dd) holds, abandons, or releases a security interest;
``(ee) includes in the terms of an extension of credit, or
in a contract or security agreement relating to an extension
of credit, a covenant, warranty, or other term or condition
that relates to environmental compliance;
``(ff) monitors or enforces a term or condition of an
extension of credit or a security interest;
``(gg) monitors or undertakes 1 or more inspections of a
vessel or facility;
``(hh) requires or conducts a response action or other
lawful means of addressing a release or threatened release of
a hazardous substance in connection with a vessel or facility
prior to, during, or on the expiration of the term of an
extension of credit;
``(ii) provides financial or other advice or counseling in
an effort to mitigate, prevent, or cure a default or
diminution in the value of a vessel or facility;
``(jj) exercises forbearance by restructuring,
renegotiating, or otherwise agreeing to alter a term or
condition of an extension of credit or a security interest;
or
``(kk) exercises any remedy that may be available under law
for the breach of a term or condition of an extension of
credit or a security agreement.
``(iii) Foreclosure.--Legal or equitable title acquired by
a security interest holder through foreclosure (or the
equivalent of foreclosure) shall be considered to be held
primarily to protect a security interest if the holder
undertakes to sell, re-lease, or otherwise divest the vessel
or facility in a reasonably expeditious manner on
commercially reasonable terms.
``(iv) Definition of security interest.--In this
subparagraph, the term `security interest' includes a right
under a mortgage, deed of trust, assignment, judgment lien,
pledge, security agreement, factoring agreement, or lease, or
any other right accruing to a person to secure the repayment
of money, the performance of a duty, or any other obligation.
``(F) Fiduciaries.--
``(i) In general.--The term `owner or operator' does not
include a fiduciary that holds legal or equitable title to,
is the mortgagee or secured party with respect to, controls,
or manages, directly or indirectly, a vessel or facility for
the purpose of administering an estate or trust of which the
vessel or facility is a part.''; and
(2) by adding at the end the following:
``(40) Fiduciary.--The term `fiduciary' means a person that
is acting in the capacity of--
``(A) an executor or administrator of an estate, including
a voluntary executor or a voluntary administrator;
``(B) a guardian;
``(C) a conservator;
``(D) a trustee under a will or a trust agreement under
which the trustee takes legal or equitable title to, or
otherwise controls or manages, a vessel or facility for the
purpose of protecting or conserving the vessel or facility
under the rules applied in State court;
``(E) a court-appointed receiver;
``(F) a trustee appointed in proceedings under title 11,
United States Code;
``(G) an assignee or a trustee acting under an assignment
made for the benefit of creditors; or
``(H) a trustee, or a successor to a trustee, under an
indenture agreement, trust agreement, lease, or similar
financing agreement, for debt securities, certificates of
interest of participation in debt securities, or other forms
of indebtedness as to which the trustee
[[Page S 14718]]
is not, in the capacity of trustee, the lender.''.
(b) Liability of Fiduciaries and Lenders.--Section 107 of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607) is amended by adding
at the end the following:
``(n) Liability of Fiduciaries.--
``(1) In general.--The liability of a fiduciary that is
liable under any other provision of this Act for the release
or threatened release of a hazardous substance from a vessel
or facility held by a fiduciary may not exceed the assets
held by the fiduciary that are available to indemnify the
fiduciary.
``(2) No individual liability.--Subject to the other
provisions of this subsection, a fiduciary shall not be
liable in an individual capacity under this Act.
``(3) Exceptions.--This subsection does not preclude a
claim under this Act against--
``(A) the assets of the estate or trust administered by a
fiduciary;
``(B) a nonemployee agent or independent contractor
retained by a fiduciary; or
``(C) a fiduciary that causes or contributes to a release
or threatened release of a hazardous substance.
``(4) Safe harbor.--Subject to paragraph (5), a fiduciary
shall not be liable in an individual capacity under this Act
for--
``(A) undertaking or directing another to undertake a
response action under section 107(d)(1) or under the
direction of an on-scene coordinator;
``(B) undertaking or directing another to undertake any
other lawful means of addressing a hazardous substance in
connection with a vessel or facility;
``(C) terminating the fiduciary relationship;
``(D) including, modifying, or enforcing a covenant,
warranty, or other term or condition in the terms of a
fiduciary agreement that relates to compliance with
environmental laws;
``(E) monitoring or undertaking 1 or more inspections of a
vessel or facility;
``(F) providing financial or other advice or counseling to
any party to the fiduciary relationship, including the
settlor or beneficiary;
``(G) restructuring, renegotiating, or otherwise altering a
term or condition of the fiduciary relationship;
``(H) administering a vessel or facility that was
contaminated before the period of service of the fiduciary
began; or
``(I) declining to take any of the actions described in
subparagraphs (B) through (H).
``(5) Due care.--This subsection does not limit the
liability of a fiduciary if the fiduciary fails to exercise
due care and the failure causes or contributes to the release
of a hazardous substance.
``(6) Rule of construction.--Nothing in this subsection
shall be construed to--
``(A) affect the rights or immunities or other defenses
that are available under this Act or other applicable law to
any person;
``(B) create any liability for any person; or
``(C) create a private right of action against a fiduciary
or against a Federal agency that regulates lenders.
``(o) Liability of Lenders.--
``(1) Definitions.--In this subsection:
``(A) Actual benefit.--The term `actual benefit' means the
net gain, if any, realized by a lender due to an action.
``(B) Extension of credit.--The term `extension of credit'
includes a lease finance transaction--
``(i) in which the lessor does not initially select the
leased vessel or facility and does not during the lease term
control the daily operations or maintenance of the vessel or
facility; or
``(ii) that conforms to all regulations issued by any
appropriate Federal banking agency (as defined in section
3(q) of the Federal Deposit Insurance Act (12 U.S.C.
1813(q))) and any appropriate State banking regulatory
authority.
``(C) Foreclosure.--The term `foreclosure' means the
acquisition of a vessel or facility through--
``(i) purchase at sale under a judgment or decree, a power
of sale, a nonjudicial foreclosure sale, or from a trustee,
deed in lieu of foreclosure, or similar conveyance, or
through repossession, if the vessel or facility was security
for an extension of credit previously contracted;
``(ii) conveyance under an extension of credit previously
contracted, including the termination of a lease agreement;
or
``(iii) any other formal or informal manner by which a
person acquires, for subsequent disposition, possession of
collateral in order to protect the security interest of the
person.
``(D) Lender.--The term `lender' means--
``(i) a person that makes a bona fide extension of credit
to, or takes a security interest from, another party;
``(ii) the Federal National Mortgage Association, the
Federal Home Loan Mortgage Corporation, the Federal
Agricultural Mortgage Corporation, or any other entity that
in a bona fide manner is engaged in the business of buying or
selling loans or interests in loans;
``(iii) a person engaged in the business of insuring or
guaranteeing against a default in the repayment of an
extension of credit, or acting as a surety with respect to an
extension of credit, to another party; and
``(iv) a person regularly engaged in the business of
providing title insurance that acquires a vessel or facility
as a result of an assignment or conveyance in the course of
underwriting a claim or claim settlement.
``(E) Net gain.--The term `net gain' means an amount not in
excess of the amount realized by a lender on the sale of a
vessel or facility less acquisition, holding, and disposition
costs.
``(F) Vessel or facility acquired through foreclosure.--The
term `vessel or facility acquired through foreclosure'--
``(i) means a vessel or facility that is acquired by a
lender through foreclosure from a person that is not
affiliated with the lender; but
``(ii) does not include such a vessel or facility if the
lender does not seek to sell or otherwise divest the vessel
or facility at the earliest practicable, commercially
reasonable time, on commercially reasonable terms, taking
into account market conditions and legal and regulatory
requirements.
``(2) Liability limitation.--
``(A) In general.--The liability of a lender that is liable
under any other provision of this Act for the release or
threatened release of a hazardous substance at, from, or in
connection with a vessel or facility shall be limited to the
amount described in subparagraph (B) if the vessel or
facility is--
``(i) a vessel or facility acquired through foreclosure;
``(ii) a vessel or facility subject to a security interest
held by the lender;
``(iii) a vessel or facility held by a lessor under the
terms of an extension of credit; or
``(iv) a vessel or facility subject to financial control or
financial oversight under the terms of an extension of
credit.
``(B) Amount.--The amount described in this subparagraph is
the excess of the fair market value of a vessel or facility
on the date on which the liability of a lender is determined
over the fair market value of the vessel or facility on the
date that is 180 days before the date on which the response
action is initiated, not to exceed the amount that the lender
realizes on the sale of the vessel or facility after
subtracting acquisition, holding, and disposition costs.
``(3) Exclusion.--This subsection does not limit the
liability of a lender that causes or contributes to the
release or threatened release of a hazardous substance.
``(4) Rule of construction.--Nothing in this subsection
shall be construed to--
``(A) affect the rights or immunities or other defenses
that are available under this Act or other applicable law to
any person;
``(B) create any liability for any person; or
``(C) create a private right of action against a lender or
against a Federal agency that regulates lenders.''.
SEC. 304. FEDERAL DEPOSIT INSURANCE ACT AMENDMENT.
The Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.)
is amended by adding at the end the following:
``SEC. 45. FEDERAL BANKING AND LENDING AGENCY LIABILITY.
``(a) Definitions.--In this section:
``(1) Federal banking or lending agency.--The term `Federal
banking or lending agency'--
``(A) means the Corporation, the Resolution Trust
Corporation, the Board of Governors of the Federal Reserve
System, the Comptroller of the Currency, the Office of Thrift
Supervision, a Federal Reserve Bank, a Federal Home Loan
Bank, the Department of Housing and Urban Development, the
National Credit Union Administration Board, the Farm Credit
Administration, the Farm Credit System Insurance Corporation,
the Farm Credit System Assistance Board, the Farmers Home
Administration, the Rural Electrification Administration, the
Small Business Administration, and any other Federal agency
acting in a similar capacity, in any of their capacities, and
their agents or appointees; and
``(B) includes a first subsequent purchaser of the vessel
or facility from a Federal banking or lending agency, unless
the purchaser--
``(i) would otherwise be liable or potentially liable for
all or part of the costs of the removal, remedial,
corrective, or other response action due to a prior
relationship with the vessel or facility;
``(ii) is or was affiliated with or related to a party
described in clause (i);
``(iii) fails to agree to take reasonable steps necessary
to remedy the release or threatened release or to protect
public health and safety in a manner consistent with the
purposes of applicable environmental laws; or
``(iv) causes or contributes to any additional release or
threatened release on the vessel or facility.
``(2) Facility.--The term `facility' has the meaning stated
in section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
``(3) Hazardous substance.--The term `hazardous substance'
means a hazardous substance (as defined in section 101 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601)).
``(4) Release.--The term `release' has the meaning stated
in section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
``(5) Response action.--The term `response action' has the
meaning stated in section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601).
[[Page S 14719]]
``(6) Vessel.--The term `vessel' has the meaning stated in
section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601).
``(b) Federal Banking and Lending Agencies Not Strictly
Liable.--
``(1) In general.--Except as provided in paragraph (2), a
Federal banking or lending agency shall not be liable under
any law imposing strict liability for the release or
threatened release of a hazardous substance at or from a
vessel or facility (including a right or interest in a vessel
or facility) acquired--
``(A) in connection with the exercise of receivership or
conservatorship authority, or the liquidation or winding up
of the affairs of an insured depository institution,
including a subsidiary of an insured depository institution;
``(B) in connection with the provision of a loan, a
discount, an advance, a guarantee, insurance, or other
financial assistance; or
``(C) in connection with a vessel or facility received in a
civil or criminal proceeding, or administrative enforcement
action, whether by settlement or by order.
``(2) Active causation.--Subject to section 107(d) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607(d)), a Federal banking
or lending agency that causes or contributes to a release or
threatened release of a hazardous substance may be liable for
a response action pertaining to the release or threatened
release.
``(3) Federal or state action.--If a Federal agency or
State environmental agency is required to take response due
to the failure of a subsequent purchaser to carry out in good
faith an agreement described in paragraph (a)(1)(C)(iii), the
subsequent purchaser shall reimburse the Federal or State
environmental agency for the costs of the response action.
Any such reimbursement shall not exceed the increase in the
fair market value of the vessel or facility attributable to
the response action.
``(c) Lien Exemption.--Notwithstanding any other law, a
vessel or facility held by a subsequent purchaser described
in subsection (a)(1)(B) or held by a Federal banking or
lending agency shall not be subject to a lien for costs or
damages associated with the release or threatened release of
a hazardous substance existing at the time of the transfer.
``(d) Exemption From Covenants To Remediate.--A Federal
banking or lending agency shall be exempt from any law
requiring the agency to grant a covenant warranting that a
response action has been, or will in the future be, taken
with respect to a vessel or facility acquired in a manner
described in subsection (b)(1).
``(e) Rules of Construction.--Nothing in this section shall
be construed to--
``(1) affect the rights or immunities or other defenses
that are available to any party under this Act, the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) or any other
law;
``(2) create any liability for any party;
``(3) create a private right of action against an insured
depository institution or lender, a Federal banking or
lending agency, or any other party;
``(4) preempt, affect, apply to, or modify a State law or a
right, cause of action, or obligation under State law, except
that the liability of a Federal banking or lending agency for
a response action under a State law shall not exceed the
value of the interest of the agency in the asset giving rise
to the liability; or
``(5) preclude a Federal banking or lending agency from
agreeing with a State to transfer a vessel or facility to the
State in lieu of any liability that might otherwise be
imposed under State law.''.
SEC. 305. CONTIGUOUS PROPERTIES.
Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607(a)),
as amended by section 303(b), is amended by adding at the end
the following:
``(p) Contiguous Properties.--
``(1) In general.--A person that owns or operates real
property that is contiguous to or otherwise similarly
situated with respect to real property on which there has
been a release or threatened release of a hazardous substance
and that is or may be contaminated by the release shall not
be considered to be an owner or operator of a vessel or
facility under subsection (a) (1) or (2) solely by reason of
the contamination if the person did not cause, contribute, or
consent to the release or threatened release.
``(2) Assurances.--The Administrator may--
``(A) issue an assurance that no enforcement action under
this Act will be initiated against a person described in
paragraph (1); and
``(B) grant a person described in paragraph (1) protection
against a cost recovery or contribution action under section
113(f).''.
SEC. 306. PROSPECTIVE PURCHASERS AND WINDFALL LIENS.
(a) Definition.--Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601), as amended by section 303(a)(2), is
amended by adding at the end the following:
``(41) Bona fide prospective purchaser.--The term `bona
fide prospective purchaser' means a person that acquires
ownership of a facility after the date of enactment of this
paragraph, or a tenant of such a person, that establishes
each of the following by a preponderance of the evidence:
``(A) Disposal prior to acquisition.--All active disposal
of hazardous substances at the facility occurred before the
person acquired the facility.
``(B) Inquiries.--
``(i) In general.--The person made all appropriate
inquiries into the previous ownership and uses of the
facility and the facility's real property in accordance with
generally accepted good commercial and customary standards
and practices.
``(ii) Standards and practices.--The standards and
practices referred to in paragraph (35)(B)(ii) or those
issued or adopted by the Administrator under that paragraph
shall be considered to satisfy the requirements of this
subparagraph.
``(iii) Residential use.--In the case of property for
residential or other similar use purchased by a
nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no basis for further
investigation shall be considered to satisfy the requirements
of this subparagraph.
``(C) Notices.--The person provided all legally required
notices with respect to the discovery or release of any
hazardous substances at the facility.
``(D) Care.--The person exercised appropriate care with
respect to each hazardous substance found at the facility by
taking reasonable steps to stop any continuing release,
prevent any threatened future release and prevent or limit
human or natural resource exposure to any previously released
hazardous substance.
``(E) Cooperation, assistance, and access.--The person
provides full cooperation, assistance, and facility access to
the persons that are 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.
``(F) Relationship.--The person is not liable, and is not
affiliated with any other person that is liable, for any
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.''.
(b) Amendment.--Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9607), as amended by section 305(b), is
amended by adding at the end the following:
``(q) Prospective Purchaser and Windfall Lien.--
``(1) Limitation on liability.--Notwithstanding subsection
(a), a bona fide prospective purchaser whose potential
liability for a release or threatened release is based solely
on the purchaser's being considered to be an owner or
operator of a facility shall not be liable as long as the
bona fide prospective purchaser does not impede the
performance of a response action or natural resource
restoration.
``(2) Lien.--If there are unrecovered response costs at a
facility for which an owner of the facility is not liable by
reason of subsection (n)(1)(C) and each of the conditions
described in paragraph (3) is met, the United States shall
have a lien on the facility, or may obtain from appropriate
responsible party a lien on any other property or other
assurances of payment satisfactory to the Administrator, for
such unrecovered costs.
``(3) Conditions.--The conditions referred to in paragraph
(1) are the following:
``(A) Response action.--A response action for which there
are unrecovered costs is carried out at the facility.
``(B) Fair market value.--The response action increases the
fair market value of the facility above the fair market value
of the facility that existed 180 days before the response
action was initiated.
``(C) Sale.--A sale or other disposition of all or a
portion of the facility has occurred.
``(4) Amount.--A lien under paragraph (2)--
``(A) 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 the property;
``(B) shall arise at the time at which costs are first
incurred by the United States with respect to a response
action at the facility;
``(C) shall be subject to the requirements of subsection
(l)(3); and
``(D) shall continue until the earlier of satisfaction of
the lien or recovery of all response costs incurred at the
facility.''.
SEC. 307. SAFE HARBOR INNOCENT LANDHOLDERS.
(a) Amendment.--Section 101(35) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601(35)) is amended by striking subparagraph
(B) and inserting the following:
``(B) Knowledge of inquiry requirement.--
``(i) All appropriate inquiries.--To establish that the
defendant had no reason to know of the matter described in
subparagraph (A)(i), the defendant must show that, at or
prior to the date on which the defendant acquired the
facility, the defendant undertook all appropriate inquiries
into the previous ownership and uses of the facility in
accordance with generally accepted good commercial and
customary standards and practices.
[[Page S 14720]]
``(ii) Standards and practices.--The Secretary shall by
regulation establish as standards and practices for the
purpose of clause (i)--
``(I) the American Society for Testing and Materials (ASTM)
Standard E1527-94, entitled `Standard Practice for
Environmental Site Assessments: Phase I Environmental Site
Assessment Process'; or
``(II) alternative standards and practices under clause
(iii).
``(iii) Alternative standards and practices.--
``(I) In general.--The Administrator may by regulation
issue alternative standards and practices or designate
standards developed by other organizations than the American
Society for Testing and Materials after conducting a study of
commercial and industrial practices concerning the transfer
of real property in the United States.
``(II) Considerations.--In issuing or designating
alternative standards and practices under subclause (I), the
Administrator shall include each of the following:
``(aa) The results of an inquiry by an environmental
professional.
``(bb) Interviews with past and present owners, operators,
and occupants of the facility and the facility's real
property for the purpose of gathering information regarding
the potential for contamination at the facility and the
facility's real property.
``(cc) Reviews of historical sources, such as chain of
title documents, aerial photographs, building department
records, and land use records to determine previous uses and
occupancies of the real property since the property was first
developed.
``(dd) Searches for recorded environmental cleanup liens,
filed under Federal, State, or local law, against the
facility or the facility's real property.
``(ee) Reviews of Federal, State, and local government
records (such as waste disposal records), underground storage
tank records, and hazardous waste handling, generation,
treatment, disposal, and spill records, concerning
contamination at or near the facility or the facility's real
property.
``(ff) Visual inspections of the facility and facility's
real property and of adjoining properties.
``(gg) Specialized knowledge or experience on the part of
the defendant.
``(hh) Consideration of the relationship of the purchase
price to the value of the property if the property was
uncontaminated.
``(ii) Commonly known or reasonably ascertainable
information about the property.
``(jj) Consideration of the degree of obviousness of the
presence or likely presence of contamination at the property,
and the ability to detect such contamination by appropriate
investigation.
``(iv) Site inspection and title search.--In the case of
property for residential use or other similar use purchased
by a nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no basis for further
investigation shall be considered to satisfy the requirements
of this subparagraph.''.
(b) Standards and Practices.--
(1) Establishment by regulation.--The Administrator of the
Environmental Protection Agency shall issue the regulation
required by section 101(35)(B)(ii) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as added by subsection (a), not later than 1 year after
the date of enactment of this Act.
(2) Interim standards and practices.--Until the
Administrator issues the regulation described in paragraph
(1), in making a determination under section 101(35)(B)(i) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as added by subsection (a), there
shall be taken into account--
(A) any specialized knowledge or experience on the part of
the defendant;
(B) the relationship of the purchase price to the value of
the property if the property was uncontaminated;
(C) commonly known or reasonably ascertainable information
about the property;
(D) the degree of obviousness of the presence or likely
presence of contamination at the property; and
(E) the ability to detect the contamination by appropriate
investigation.
TITLE IV--SELECTION OF REMEDIAL ACTIONS
SEC. 401. DEFINITIONS.
Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601), as
amended by section 306(a), is amended by adding at the end
the following:
``(42) Actual or planned or reasonably anticipated future
use of the land and water resources.--The term `actual or
planned or reasonably anticipated future use of the land and
water resources' means--
``(A) the actual use of the land, surface water, and ground
water at a facility at the time of the initiation of the
facility evaluation; and
``(B)(i) with respect to land--
``(I) the use of land that is authorized by the zoning or
land use decisions formally adopted, at or prior to the time
of the initiation of the facility evaluation, by the local
land use planning authority for a facility and the land
immediately adjacent to the facility; and
``(II) any other reasonably anticipated use that has a
substantial probability of occurring based on recent (as of
the time of the determination) development patterns in the
area in which the facility is located and on population
projections for the area; and
``(ii) with respect to water resources, the future use of
the surface water and ground water that is potentially
affected by releases from a facility that is reasonably
anticipated, by a local government or other governmental unit
that regulates ground water use or ground water use planning
in the vicinity of the facility, on the earlier of--
``(I) the date of issuance of the first record of decision;
or
``(II) the initiation of the facility evaluation.
``(43) Significant ecosystem.--The term `significant
ecosystem', for the purpose of section 121(a)(1)(B), means an
ecosystem that exhibits a uniqueness, particular value, or
historical presence or that is widely recognized as a
significant resource at the national, State or local level.
``(44) Valuable ecosystem.--The term `valuable ecosystem'
means an ecosystem that is a known source of significant
human or ecological benefits for its function.
``(45) Sustainable ecosystem.--The term `sustainable
ecosystem' means an ecosystem that has redundancy and
resiliency sufficient to enable the ecosystem to continue to
function and provide benefits within the normal range of its
variability notwithstanding exposure to hazardous substances
resulting from releases.
``(46) Ecological resource.--The term `ecological resource'
means land, fish, wildlife, biota, air, surface water, and
ground water within an ecosystem.
``(47) Significant risk to ecological resources that are
necessary to the sustainability of a significant ecosystem or
valuable ecosystem.--The term `significant risk to ecological
resources that are necessary to the sustainability of a
significant ecosystem or valuable ecosystem' means the risk
associated with exposures and impacts resulting from the
release of hazardous substances which together reduce or
eliminate the sustainability (within the meaning of paragraph
(45)) of a significant ecosystem or valuable ecosystem.''.
SEC. 402. SELECTION AND IMPLEMENTATION OF REMEDIAL ACTIONS.
Section 121 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9621) is
amended--
(1) by striking the section heading and subsections (a) and
(b) and inserting the following:
``SEC. 121. SELECTION AND IMPLEMENTATION OF REMEDIAL ACTIONS.
``(a) General Rules.--
``(1) Selection of most cost-effective remedial action that
protects human health and the environment.--
``(A) In general.--The Administrator shall select a
remedial action that is the most cost-effective means of
achieving the goals of protecting human health and the
environment as stated in subparagraph (B) using the criteria
stated in subparagraph (C).
``(B) Goals of protecting human health and the
environment.--
``(i) Protection of human health.--A remedial action shall
be considered to protect human health if, considering the
expected exposures associated with the actual or planned or
reasonably anticipated future use of the land and water
resources, the remedial action achieves a residual risk--
``(I) from exposure to carcinogenic hazardous substances,
pollutants, or contaminants such that cumulative lifetime
additional cancer from exposure to hazardous substances from
releases at the facility range from 10-4 to 10-6
for the affected population; and
``(II) from exposure to noncarcinogenic hazardous
substances, pollutants, or contaminants at the facility that
does not pose an appreciable risk of deleterious effects.
``(ii) Protection of the environment.--A remedial action
shall be considered to protect the environment if, based on
the actual or planned or reasonably anticipated future use of
the land and water resources, the remedial action will
protect against significant risks to ecological resources
that are necessary to the sustainability of a significant
ecosystem or valuable ecosystem and will not interfere with a
sustainable functional ecosystem.
``(C) Remedy selection criteria.--In selecting a remedial
action from among alternatives that achieve the goals stated
in subparagraph (B), the Administrator shall balance the
following factors, ensuring that no single factor
predominates over the others:
``(i) The effectiveness of the remedy in protecting human
health and the environment.
``(ii) The reliability of the remedial action in achieving
the protectiveness standards over the long term.
``(iii) Any short-term risk to the affected community,
those engaged in the remedial action effort, and to the
environment posed by the implementation of the remedial
action.
``(iv) The acceptability of the remedial action to the
affected community.
``(v) The implementability and technical practicability of
the remedial action from an engineering perspective.
``(2) Technical impracticability and unreasonable cost.--
``(A) Minimization of risk.--If the Administrator finds
that achieving the goals stated in paragraph (1)(B), is
technically impracticable or unreasonably costly, the
Administrator shall evaluate remedial measures that mitigate
the risks to human health and the environment and select a
technically practicable remedial action that minimizes the
[[Page S 14721]]
risk to human health and the environment by cost-effective means.
``(B) Basis for finding.--A finding of technical
impracticability may be made on the basis of a determination,
supported by appropriate documentation, that, at the time at
which the finding is made--
``(i) there is no known reliable means of achieving at a
reasonable cost the goals stated in paragraph (1)(B); and
``(ii) it has not been shown that such a means is likely to
be developed within a reasonable period of time.
``(3) Presumptive remedial actions.--A remedial action that
implements a presumptive remedial action issued under section
128 shall be considered to achieve the goals stated in
paragraph (1)(B) and balance adequately the factors stated in
paragraph (1)(C).
``(4) Ground water.--
``(A) In general.--A remedial action shall protect
uncontaminated ground water that is suitable for use as
drinking water by humans or livestock in the water's
condition at the time of initiation of the facility
evaluation.
``(B) Considerations.--A decision under subparagraph (A)
regarding remedial action for ground water shall take into
consideration--
``(i) the actual or planned or reasonably anticipated
future use of the ground water and the timing of that use;
``(ii) any attenuation or biodegradation that would occur
if no remedial action were taken; and
``(iii) the criteria stated in paragraph (1)(C).
``(C) Official classification.--For the purposes of
subparagraph (A), there shall be no presumption that ground
water that is suitable for use as drinking water by humans or
livestock is the actual or planned or reasonably anticipated
future use of the ground water.
``(D) Uncontaminated ground water.--A remedial action for
protecting uncontaminated ground water may be based on
natural attenuation or biodegradation so long as the remedial
action does not interfere with the actual or planned or
reasonably anticipated future use of the ground water.
``(E) Contaminated ground water.--A remedial action for
contaminated ground water may include point-of-use treatment.
``(5) Legally applicable requirements.--A remedial action
shall not be required to attain any standard that, without
regard to this paragraph, would be legally applicable under
any other Federal or State law, except that in the case of a
removal or remedial action involving the transfer of
hazardous waste off-site, that hazardous waste may be
transferred only to a facility that is permitted to treat,
store, or dispose such waste under section 3005 of the Solid
Waste Disposal Act (42 U.S.C. 6925) or, if applicable, the
Toxic Substances Control Act (15 U.S.C. 2601 et seq.).
``(6) Other considerations applicable to remedial
actions.--A remedial action that uses institutional and
engineering controls shall be considered to be on an equal
basis with all other remedial action alternatives.'';
(2) by redesignating subsection (c) as subsection (b), and,
in the first sentence of that subsection, by striking ``5
years'' and inserting ``7 years'';
(3) by redesignating subsection (e) as subsection (c); and
(4) by redesignating subsection (f) as subsection (d).
SEC. 403. REMEDY SELECTION METHODOLOGY.
Title I of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) is amended by adding at the end the following:
``SEC. 127. FACILITY-SPECIFIC RISK EVALUATIONS.
``(a) Uses.--
``(1) In general.--A facility-specific risk evaluation
shall be used to--
``(A) identify the significant components of potential risk
posed by a facility;
``(B) screen out potential contaminants, areas, or exposure
pathways from further study at a facility;
``(C) compare the relative protectiveness of alternative
potential remedies proposed for a facility; and
``(D) demonstrate that the remedial action selected for a
facility is capable of protecting human health and the
environment considering the actual or planned or reasonably
anticipated future use of the land and water resources.
``(2) Compliance with principles.--A facility-specific risk
evaluation shall comply with the principles stated in this
section to ensure that--
``(A) actual or planned or reasonably anticipated future
use of the land and water resources is given appropriate
consideration; and
``(B) all of the components of the evaluation are, to the
maximum extent practicable, scientifically objective and
inclusive of all relevant data.
``(b) Risk Evaluation Principles.--A facility-specific risk
evaluation shall--
``(1) be based on actual or plausible estimates of exposure
considering the actual or planned or reasonably anticipated
future use of the land and water resources;
``(2) be comprised of components each of which is, to the
maximum extent practicable, scientifically objective, and
inclusive of all relevant data;
``(3) use chemical and facility-specific data and analysis
(such as toxicity, exposure, and fate and transport
evaluations) in preference to default assumptions;
``(4) use a range and distribution of realistic and
plausible assumptions when chemical and facility-specific
data are not available;
``(5) use mathematical models that take into account the
fate and transport of hazardous substances, pollutants, or
contaminants, in the environment instead of relying on
default assumptions; and
``(6) use credible hazard identification and dose/response
assessments.
``(c) Risk Communication Principles.--The document
reporting the results of a facility-specific risk evaluation
shall--
``(1) contain an explanation that clearly communicates the
risks at the facility;
``(2) identify and explain all assumptions used in the
evaluation, all alternative assumptions, the policy or value
judgments used in choosing the assumptions, and whether
empirical data conflict with or validate the assumptions;
``(3) present--
``(A) a range and distribution of exposure and risk
estimates, including, if numerical estimates are provided,
central estimates of exposure and risk using--
``(i) the most plausible assumptions or a weighted
combination of multiple assumptions based on different
scenarios; or
``(ii) any other methodology designed to characterize the
most plausible estimate of risk given the scientific
information that is available at the time of the facility-
specific risk evaluation; and
``(B) a statement of the nature and magnitude of the
scientific and other uncertainties associated with those
estimates;
``(4) state the size of the population potentially at risk
from releases from the facility and the likelihood that
potential exposures will occur based on the actual or planned
or reasonably anticipated future use of the land and water
resources; and
``(5) compare the risks from the facility to other risks
commonly experienced by members of the local community in
their daily lives and similar risks regulated by the Federal
Government.
``(d) Regulations.--Not later than 18 months after the date
of enactment of this section, the Administrator shall issue a
final regulation implementing this section that promotes a
realistic characterization of risk that neither minimizes nor
exaggerates the risks and potential risks posed by a facility
or a proposed remedial action.
``(e) Determination of Actual or Planned or Reasonably
Anticipated Future Use of the Land and Water Resources.--The
Administrator shall determine the actual or planned or
reasonably anticipated future use of the land and water
resources at a facility by consulting the community response
organization, facility owners and operators, potentially
responsible parties, elected municipal and county officials,
and other persons.
``SEC. 128. PRESUMPTIVE REMEDIAL ACTIONS.
``(a) In General.--Not later than 1 year after the date of
enactment of this section, the Administrator shall issue a
final regulation establishing presumptive remedial actions
for commonly encountered types of facilities with reasonably
well understood contamination problems and exposure
potential.
``(b) Practicability and Cost-Effectiveness.--Such
presumptive remedies must have been demonstrated to be
technically practicable and cost-effective methods of
achieving the goals of protecting human health and the
environment stated in section 121(a)(1)(B).
``(c) Variations.--The Administrator may issue various
presumptive remedial actions based on various uses of land
and water resources, various environmental media, and various
types of hazardous substances, pollutants, or contaminants.
``(d) Engineering Controls.--Presumptive remedial actions
are not limited to treatment remedies, but may be based on,
or include, institutional and standard engineering
controls.''.
SEC. 404. REMEDY SELECTION PROCEDURES.
Title I of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), as amended by section 403, is amended by adding at the
end the following:
``SEC. 129. REMEDIAL ACTION PLANNING AND IMPLEMENTATION.
``(a) In General.--
``(1) Basic rules.--
``(A) Procedures.--A remedial action shall be developed and
selected in accordance with the procedures set forth in this
section.
``(B) No other procedures or requirements.--The procedures
stated in this section are in lieu of any procedures or
requirements under any other law to conduct remedial
investigations, feasibility studies, record of decisions,
remedial designs, or remedial actions.
``(C) Limited review.--In a case in which the potentially
responsible parties prepare a remedial action plan, only the
facility evaluation, proposed remedial action plan, and final
remedial design shall be subject to review, comment, and
approval by the Administrator.
``(D) National contingency plan.--The Administrator shall
conform the National Contingency Plan regulations to reflect
the procedures stated in this section.
``(2) Use of presumptive remedial actions.--
``(A) Proposal to use.--In a case in which a presumptive
remedial action applies, the
[[Page S 14722]]
Administrator (if the Administrator is conducting the remedial action)
or the preparer of the remedial action plan may, after
conducting a facility evaluation, propose a presumptive
remedial action for the facility, if the Administrator or
preparer shows with appropriate documentation that the
facility fits the generic classification for which a
presumptive remedial action has been issued and performs an
engineering evaluation to demonstrate that the presumptive
remedial action can be applied at the facility.
``(B) Limitation.--The Administrator may not require a
potentially responsible party to implement a presumptive
remedial action.
``(b) Remedial Action Planning Process.--
``(1) In general.--The Administrator or a potentially
responsible party shall prepare and implement a remedial
action plan for a facility.
``(2) Contents.--A remedial action plan shall consist of--
``(A) the results of a facility evaluation, including any
screening analysis performed at the facility;
``(B) a discussion of the potentially viable remedies that
are considered to be reasonable under section 121(a) and how
they balance the factors stated in section 121(a)(1)(C);
``(C) a description of the remedial action to be taken;
``(D) a description of the facility-specific risk-based
evaluation under section 127 and a demonstration that the
selected remedial action--
``(i) will achieve the goals stated in section
121(a)(1)(B); or
``(ii) satisfies the requirements of section 128; and
``(E) a realistic schedule for conducting the remedial
action, taking into consideration facility-specific factors.
``(3) Work plan.--
``(A) In general.--Prior to preparation of a remedial
action plan, the preparer shall develop a work plan,
including a community information and participation plan,
which generally describes how the remedial action plan will
be developed.
``(B) Submission.--A work plan shall be submitted to the
Administrator, the State, the community response
organization, the local library, and any other public
facility designated by the Administrator.
``(C) Publication.--The Administrator, or the preparer of
the plan, shall publish in a newspaper of general circulation
in the area where the facility is located, and post in
conspicuous places in the local community, a notice
announcing that the work plan is available for review at the
local library and that comments concerning the work plan can
be submitted to the preparer of the work plan, the
Administrator, the State, or the local community response
organization.
``(D) Forwarding of comments.--If comments are submitted to
the Administrator, the State, or the community response
organization, the Administrator, State, or community response
organization shall forward the comments to the preparer of
the work plan.
``(4) Facility evaluation.--
``(A) In general.--The Administrator shall conduct a
facility evaluation at each facility to characterize the risk
posed by the facility by gathering enough information
necessary to--
``(i) assess potential remedial alternatives, including
ascertaining, to the degree appropriate, the volume and
nature of the contaminants, their location, potential
exposure pathways and receptors;
``(ii) discern the actual or planned or reasonably
anticipated future use of the land and water resources; and
``(iii) screen out any uncontaminated areas, contaminants,
and potential pathways from further consideration.
``(B) Submission.--A draft facility evaluation shall be
submitted to the Administrator for approval.
``(C) Publication.--Not later than 30 days after
submission, or in a case in which the Administrator is
preparing the remedial action plan, after the completion of
the draft facility evaluation, the Administrator shall
publish in a newspaper of general circulation in the area
where the facility is located, and post in conspicuous places
in the local community, a notice announcing that the draft
facility evaluation is available for review and that comments
concerning the evaluation can be submitted to the
Administrator, the State, and the community response
organization.
``(D) Availability of comments.--If comments are submitted
to the Administrator, the State, or the community response
organization, the Administrator, State, or community response
organization shall make the comments available to the
preparer of the facility evaluation.
``(E) Notice of approval.--If the Administrator approves a
facility evaluation, the Administrator shall--
``(i) notify the community response organization; and
``(ii) publish in a newspaper of general circulation in the
area where the facility is located, and post in conspicuous
places in the local community, a notice of approval.
``(F) Notice of disapproval.--If the Administrator does not
approve a facility evaluation, the Administrator shall--
``(i) identify to the preparer of the facility evaluation,
with specificity, any deficiencies in the submission; and
``(ii) request that the preparer submit a revised facility
evaluation within a reasonable period of time.
``(5) Proposed remedial action plan.--
``(A) Submission.--In a case in which a potentially
responsible party prepares a remedial action plan, the
preparer shall submit the remedial action plan to the
Administrator for approval and provide a copy to the local
library.
``(B) Publication.--After receipt of the proposed remedial
action plan, or in a case in which the Administrator is
preparing the remedial action plan, after the completion of
the remedial action plan, the Administrator shall cause to be
published in a newspaper of general circulation in the area
where the facility is located and posted in other conspicuous
places in the local community a notice announcing that the
proposed remedial action plan is available for review at the
local library and that comments concerning the remedial
action plan can be submitted to the Administrator, the State,
and the community response organization, and that persons may
request that the Administrator hold a public hearing.
``(C) Availability of comments.--If comments are submitted
to a State or the community response organization, the State
or community response organization shall make the comments
available to the preparer of the proposed remedial action
plan.
``(D) Hearing.--The Administrator shall hold a public
hearing at which the proposed remedial action plan may be
presented and public comment received.
``(E) Approval.--
``(i) In general.--The Administrator shall approve a
proposed remedial action plan if the plan--
``(I) contains the information described in subsection (b);
and
``(II) achieves the goals stated in section 121(a)(1)(B).
``(ii) Default.--If the Administrator fails to issue a
notice of disapproval of a proposed remedial action plan in
accordance with subparagraph (G) within 90 days after the
proposed plan is submitted, the plan shall be considered to
be approved and its implementation fully authorized.
``(F) Notice of approval.--If the Administrator approves a
proposed remedial action plan, the Administrator shall--
``(i) notify the community response organization; and
``(ii) publish in a newspaper of general circulation in the
area where the facility is located, and post in conspicuous
places in the local community, a notice of approval.
``(G) Notice of disapproval.--If the Administrator does not
approve a proposed remedial action plan, the Administrator
shall--
``(i) inform the preparer of the proposed remedial action
plan, with specificity, of any deficiencies in the
submission; and
``(ii) request that the preparer submit a revised proposed
remedial action plan within a reasonable time.
``(6) Implementation of remedial action plan.--A remedial
action plan that has been approved or is considered to be
approved under paragraph (5) shall be implemented in
accordance with the schedule set forth in the remedial action
plan.
``(7) Remedial design.--
``(A) Submission.--A remedial design shall be submitted to,
or in a case in which the Administrator is preparing the
remedial action plan, completed by, the Administrator.
``(B) Publication.--After receipt (or completion) of the
remedial design, the Administrator shall--
``(i) notify the community response organization; and
``(ii) cause a notice of submission or completion of the
remedial design to be published in a newspaper of general
circulation and posted in conspicuous places in the area
where the facility is located.
``(C) Comment.--The Administrator shall provide an
opportunity to the public to submit written comments on the
remedial design.
``(D) Approval.--Not later than 90 days after the
submission (or completion) of the remedial design, the
Administrator shall approve or disapprove the remedial
design.
``(E) Notice of approval.--If the Administrator approves a
remedial design the Administrator shall--
``(i) notify the community response organization; and
``(ii) publish in a newspaper of general circulation in the
area where the facility is located, and post in conspicuous
places in the local community, a notice of approval.
``(F) Notice of disapproval.--If the Administrator
disapproves the remedial design, the Administrator shall
identify with specificity any deficiencies in the submission
and allow the preparer submitting a remedial design a
reasonable time to submit a revised remedial design.
``(c) Judicial Review.--Notwithstanding any other provision
of this Act or any other law, an approval or disapproval of a
remedial action plan the implementation of which is projected
to cost more than $15,000,000 shall be final action of the
Administrator subject to judicial review in United States
district court.
``(d) Enforcement of Remedial remedial Plan.--
``(1) Notice of significant deviation.--If the
Administrator determines that the implementation of the
remedial action plan has deviated significantly from the
plan, the Administrator shall so notify the implementing
party and require the implementing party to--
[[Page S 14723]]
``(A) comply with the terms of the remedial action plan; or
``(B) submit a notice for modifying the plan,
at the option of the implementing party.
``(2) Failure to comply.--If the implementing party fails
to either comply with the plan or submit a proposed
modification, the Administrator may pursue all appropriate
enforcement pursuant to this Act.
``(e) Modifications to Remedial Action Plan.--
``(1) By the administrator.--
``(A) In general.--If the Administrator proposes a
modification to the plan, the Administrator shall demonstrate
that the modification constitutes the most cost-effective
remedial action that is technologically feasible, is not
unreasonably costly, and achieves the goals of protecting
human health and the environment stated in section
121(a)(1)(B).
``(B) Notice and comment.--The Administrator shall provide
the implementing party and the community response
organization at least 30 days' advance notice and opportunity
to comment on any such proposed modification.
``(2) By the implementing party.--An implementing party
that proposes a minor modification to or clarification of a
remedial action plan shall, at least 10 days prior to the
proposed implementation of the modification or clarification,
submit to the Administrator and to the community response
organization a description of the proposed modification or
clarification and documentation showing that the proposed
modification or clarification will not cause the remedial
action to fail to achieve the goals of section
121(a)(1)(B).''.
SEC. 405. COMPLETION OF REMEDIAL ACTION AND DELISTING.
Title I of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), as amended by section 404, is amended by adding at the
end the following:
``SEC. 130. COMPLETION OF REMEDIAL ACTION AND DELISTING.
``(a) In General.--
``(1) Proposed notice of completion and proposed
delisting.--Not later than 60 days after the completion of a
remedial action by the Administrator, or not later than 60
days after receipt of a notice of such completion from the
implementing party, the Administrator shall publish a notice
of completion and proposed delisting of the facility from the
National Priorities List in the Federal Register and in a
newspaper of general circulation in the area where the
facility is located.
``(2) Comments.--The public shall be provided 30 days in
which to submit comments on the notice of completion and
proposed delisting.
``(3) Final notice.--Not later than 60 days after the end
of the comment period, the Administrator shall--
``(A) issue a final notice of completion and delisting or a
notice of withdrawal of the proposed notice until the
implementation of the remedial action is determined to be
complete; and
``(B) publish the notice in the Federal Register and in a
newspaper of general circulation in the area where the
facility is located.
``(4) Failure to act.--If the Administrator fails to
publish a notice of withdrawal within the 60-day period
described in paragraph (3)--
``(A) the remedial action plan shall be deemed to have been
completed; and
``(B) the facility shall be delisted by operation of law.
``(5) Effect of delisting.--The delisting of a facility
shall have no effect on--
``(A) liability allocation requirements or cost-recovery
provisions otherwise provided in this Act; or
``(B) the obligation of any person to provide continued
operation and maintenance.
``(b) Certification.--A final notice of completion and
delisting shall include a certification by the Administrator
that the facility has met all of the requirements of the
remedial action plan (except requirements for continued
operation and maintenance).
``(c) Release From Liability.--
``(1) Facility available for unrestricted use.--If, after
completion of remedial action, a facility is available for
unrestricted use and there is no need for continued operation
and maintenance, the potentially responsible parties shall
have no further liability under any Federal, State, or local
law (including any regulation) for remediation at the
facility, unless the Administrator determines, based on new
and reliable factual information about the facility, that the
facility does not meet the goals stated in section
121(a)(1)(B) considering the actual or planned or reasonably
anticipated future use of the land and water resources.
``(2) Facility not available for unrestricted use.--If,
after completion of remedial action, a facility is not
available for unrestricted use or there are continued
operation and maintenance requirements that preclude use of
the facility, the Administrator shall--
``(A) review the status of the facility every 7 years; and
``(B) require additional remedial action at the facility if
the Administrator determines, after notice and opportunity
for hearing, that the facility does not meet the goals of
section 121(a)(1) (B), (C), and (D) considering the actual or
planned or reasonably anticipated future use of the land and
water resources contemplated in the remedial action plan.
``(3) Facilities available for restricted use.--The
Administrator may determine that a facility or portion of a
facility is available for restricted use while remediation
response actions are under way. The Administrator shall make
available for use any uncontaminated portions of the facility
where such uses would not interfere with ongoing operations
and maintenance activities or endanger human health or the
environment.
``(4) Failure to make timely disapproval.--The issuance of
a final notice of completion and delisting or of a notice of
withdrawal within the time required by subsection (a)(3)
constitutes a nondiscretionary duty within the meaning of
section 310(a)(2).
``(d) Operation and Maintenance.--The need to perform
continued operation and maintenance at a facility shall not
delay delisting of the facility or issuance of the
certification if performance of operation and maintenance is
subject to a legally enforceable agreement, order, or decree.
``(e) Change of Use of Facility.--
``(1) Petition.--Any person may petition the Administrator
to change the use of a facility from that which was the basis
of the remedial action plan.
``(2) Grant.--The Administrator may grant a petition under
paragraph (1) if the petitioner agrees to implement any
additional remedial actions that the Administrator determines
are necessary to continue to meet the goals stated in section
121(a)(1)(B), considering the different use of the facility.
``(3) Responsibility for risk.--When a petition has been
granted under paragraph (2), the person requesting the change
in use of the facility shall be responsible for all risk
associated with altering the facility and all costs of
implementing any necessary additional remedial actions.''.
SEC. 406. TRANSITION RULES FOR FACILITIES CURRENTLY INVOLVED
IN REMEDY SELECTION.
Title I of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), as amended by section 405, is amended by adding at the
end the following:
``SEC. 131. TRANSITION RULES FOR FACILITIES INVOLVED IN
REMEDY SELECTION ON DATE OF ENACTMENT.
``(a) No Record of Decision.--
``(1) Option.--In the case of a facility or operable unit
that, as of the date of enactment of this section, is the
subject of a remedial investigation and feasibility study
(whether completed or incomplete), the potentially
responsible parties or the Administrator may elect to follow
the remedial action plan process stated in section 129 rather
than the remedial investigation and feasibility study and
record of decision process under regulations in effect on the
date of enactment of this section that would otherwise apply
if the requesting party notifies the Administrator and other
potentially responsible parties of the election not later
than 90 days after the date of enactment of this section.
``(2) Submission of facility evaluation.--In a case in
which the potentially responsible parties have or the
Administrator has made an election under subsection (a), the
potentially responsible parties shall submit the proposed
facility evaluation within 270 days after the date on which
notice of the election is given.
``(b) Construction Not Begun.--
``(1) Determination.--In the case of a facility or operable
unit with respect to which a record of decision has been
signed but construction has not yet begun prior to the date
of enactment of this section, the Administrator or the State
shall, at the request of the implementer of the record of
decision, conduct an expedited review to determine whether
the application of section 127 would be likely to result in
the selection of a less costly remedial action that achieves
the goals of protecting human health and the environment
stated in section 121(a)(1)(B).
``(2) Default.--Section 127 shall apply to a facility or
operable unit in accordance with a request under paragraph
(1) unless the Administrator or the State, prior to the date
that is 90 days after the date on which the request is made,
publishes a written finding that the application of section
127 would not be likely to result in the selection of a less
costly remedial action that achieves the goals of protecting
human health and the environment stated in section
121(a)(1)(B).
``(c) Additional Construction.--
``(1) In general.--In the case of a facility or operable
unit with respect to which a record of decision has been
signed and construction has begun prior to the date of
enactment of this section, but for which additional
construction or long-term operation and maintenance
activities are anticipated, the Administrator or the State
shall, at the request of the implementer of the record of
decision, conduct an expedited review to determine whether
the application of section 127 would be likely to result in
the selection of a remedial action that--
``(A) achieves a cost saving of at least 10 percent over
the life of the remedial action, including any long-term
operation and maintenance, compared to the remedial action
originally selected; and
``(B) achieves the goals of protecting human health and the
environment stated in section 121(a)(1)(B).
``(2) Default.--Section 127 shall apply to a facility or
operable unit in accordance with a request under paragraph
(1) unless the Administrator or the State, prior to the date
that is 90 days after the date on which the
[[Page S 14724]]
request is made, publishes a written finding that the application of
section 127 would not be likely to result in the selection of
a remedial action that achieves a cost saving of at least 10
percent over the life of the remedial and achieves the goals
of protecting human health and the environment stated in
section 121(a)(1)(B).
``(d) Mediation of Disputes.--A dispute over the
implementation of this section or over a written finding
under subsection (b)(2) or (c)(2) shall be referred to
mediation on an expedited basis without penalty to any
person.''.
SEC. 407. JUDICIAL REVIEW.
(a) Review of Certain Actions.--Section 113(h) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9613(h)) is amended by
adding at the end the following:
``(6) An action under section 129(c).''.
(b) Stay.--Section 113(b) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9613(b)) is amended by adding at the end the
following: ``In the case of a challenge under section
113(h)(6), the court may stay the implementation or
initiation of the challenged actions pending judicial
resolution of the matter.''.
SEC. 408. NATIONAL PRIORITIES LIST.
(a) Revision of National Contingency Plan.--
(1) Amendments.--Section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9605) is amended--
(A) in subsection (a)(8) by adding at the end the
following:
``(C) provision that in listing a site on the National
Priority List, the Administrator shall not include any parcel
of real property at which no release has actually occurred,
but to which a released hazardous substance, pollutant, or
contaminant has migrated in ground water that has moved
through subsurface strata from another parcel of real estate
at which the release actually occurred, unless the ground
water is in use as a public drinking water supply or was in
such use at the time of the release.''; and
(B) by adding at the end the following:
``(h) Listing of Particular Parcels.--
``(1) Definition.--In subsection (a)(8)(C) and paragraph
(2) of this subsection, the term `parcel of real property'
means a parcel, lot, or tract of land that has a separate
legal description from that of any other parcel, lot, or
tract of land the legal description and ownership of which
has been recorded in accordance with the law of the State in
which it is located.
``(2) Statutory construction.--Nothing in subsection
(a)(8)(C) shall be construed to limit the Administrator's
authority under section 104 to obtain access to and undertake
response actions at any parcel of real property to which a
released hazardous substance, pollutant, or contaminant has
migrated in the ground water.''.
(2) Revision of national priorities list.--The President
shall revise the National Priorities List to conform with the
amendment made by paragraph (1) not later that 180 days of
the date of enactment of this Act.
TITLE V--LIABILITY ALLOCATIONS
SEC. 501. ALLOCATION OF LIABILITY FOR MULTIPARTY FACILITIES.
Title I of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.), as amended by section 406, is amended by adding at the
end the following:
``SEC. 132. ALLOCATION OF LIABILITY FOR MULTIPARTY
FACILITIES.
``(a) Definitions.--In this section:
``(1) Allocation party.--The term `allocation party' means
a party, named on a list of parties that will be subject to
the allocation process under this section, issued by an
allocator under subsection (g)(3)(A).
``(2) Allocator.--The term `allocator' means an allocator
retained to conduct an allocation for a facility under
subsection (f)(1).
``(3) Mandatory allocation facility.--The term `mandatory
allocation facility' means--
``(A) a non-federally owned vessel or facility listed on
the National Priorities List for which the Administrator has
approved a record of decision or a remedial action plan on or
after June 15, 1995;
``(B) a federally owned facility listed on the National
Priorities List for which the Administrator has approved a
record of decision or a remedial action plan on or after June
15, 1995, if 1 or more of the potentially responsible parties
with respect to the facility is not a department, agency, or
instrumentality of the United States;
``(C) a non-federally owned vessel or facility listed on
the National Priorities List for which the Administrator has
approved a record of decision prior to June 15, 1995, if the
construction or the operation and maintenance in accordance
with the record of decision has continued after June 15,
1995; or
``(D) a federally owned facility listed on the National
Priorities List for which the Administrator has approved a
record of decision prior to June 15, 1995, and 1 or more of
the potentially responsible parties is not a department,
agency, or instrumentality of the United States and the
construction or the operation and maintenance in accordance
with the record of decision has continued after June 15,
1995.
``(b) Allocations of Liability.--
``(1) Mandatory allocations.--For each mandatory allocation
facility involving 2 or more potentially responsible parties,
the Administrator shall conduct the allocation process under
this section.
``(2) Requested allocations.--For a facility (other than a
mandatory allocation facility) involving 2 or more
potentially responsible parties, the Administrator shall
conduct the allocation process under this section if the
allocation is requested in writing by a potentially
responsible party that has--
``(A) incurred response costs with respect to a response
action; or
``(B) resolved any liability to the United States with
respect to a response action in order to assist in allocating
shares among potentially responsible parties.
``(3) Permissive allocations.--For any facility (other than
a mandatory allocation facility or a facility with respect to
which a request is made under paragraph (2)) involving 2 or
more potentially responsible parties, the Administrator may
conduct the allocation process under this section if the
Administrator considers it to be appropriate to do so.
``(4) Orphan share.--An allocation performed at a facility
identified under subsection (a)(3) (C) or (D) or (b) (2) or
(3) shall not require payment of an orphan share under
subsection (l) or reimbursement under subsection (t).
``(5) Excluded facilities.--
``(A) In general.--Except as provided in subparagraph (B),
for purposes of the allocation process only, this section
does not apply to--
``(i) a response action at a mandatory allocation facility
for which there was in effect as of June 15, 1995, a final
settlement, decree, or order that determines the liability
and allocated shares of all potentially responsible parties
with respect to the response action; or
``(ii) a facility with respect to which none of the
potentially responsible parties is liable or potentially
liable under section 107(a)(1) (C) or (D).
``(B) Conduct prior to december 11, 1980.--
``(i) In general.--For any mandatory allocation facility
that is otherwise excluded by subparagraph (A), an allocation
process shall be conducted for the sole purpose of
determining the percentage share of responsibility
attributable to activity of each potentially responsible
party prior to December 11, 1980.
``(ii) Purpose.--The determination made under clause (i)
shall be used only to determine the availability of the
environmental response expenditures credit under section
38(b)(12) of the Internal Revenue Code of 1986.
``(6) Scope of allocations.--Subject to paragraph (5), an
allocation under this section shall apply to--
``(A) the cost of any response action selected by the
Administrator after June 15, 1995, for a mandatory allocation
facility described in subsection (a)(3) (A) or (B);
``(B) the cost of construction and operation and
maintenance incurred at a mandatory allocation facility after
June 15, 1995, in accordance with a record of decision
approved by the Administrator before June 15, 1995; and
``(C) the cost of any response action incurred by a
potentially responsible party at a facility that is the
subject of a requested allocation or permissive allocation
process under subsection (b) (2) or (3).
``(7) Other matters.--This section shall not limit or
affect--
``(A) the obligation of the Administrator to conduct the
allocation process for a response action at a facility that
has been the subject of a partial or expedited settlement
with respect to a response action that is not within the
scope of the allocation;
``(B) the ability of any person to resolve any liability at
a facility to any other person at any time before initiation
or completion of the allocation process, subject to
subsection (l)(3);
``(C) the validity, enforceability, finality, or merits of
any judicial or administrative order, judgment, or decree
issued prior to the date of enactment of this section with
respect to liability under this Act; or
``(D) the validity, enforceability, finality, or merits of
any preexisting contract or agreement relating to any
allocation of responsibility or any indemnity for, or sharing
of, any response costs under this Act.
``(c) Moratorium on Litigation and Enforcement.--
``(1) In general.--No person may assert a claim for
recovery of a response cost or contribution toward a response
cost under this Act or any other Federal or State law in
connection with a response action--
``(A) for which an allocation is required to be performed
under subsection (b)(1); or
``(B) for which the Administrator has initiated the
allocation process under this section,
until the date that is 120 days after the date of issuance of
a report by the allocator under subsection (j)(5) or, if a
second or subsequent report is issued under subsection (r),
the date of issuance of the second or subsequent report.
``(2) Pending actions or claims.--If a claim described in
paragraph (1) is pending on the date of enactment of this
section or on initiation of an allocation under this section,
the portion of the claim pertaining to response costs that
are the subject of the allocation shall be stayed until the
date that is 120 days after the date of issuance of a report
by the allocator under subsection (j)(5) or, if a second or
subsequent report is issued under subsection (r), the date of
issuance of the second or subsequent report, unless the
[[Page S 14725]]
court determines that a stay would result in manifest injustice.
``(3) Tolling of period of limitation.--
``(A) Beginning of tolling.--Any applicable period of
limitation with respect to a claim subject to paragraph (1)
shall be tolled beginning on the earlier of--
``(i) the date of listing of the facility on the National
Priorities List if the listing occurs after the date of
enactment of this section; or
``(ii) the date of initiation of the allocation process
under this section.
``(B) End of tolling.--A period of limitation shall be
tolled under subparagraph (A) until the date that is 180 days
after the date of issuance of a report by the allocator under
subsection (j)(5), or of a second or subsequent report under
subsection (r).
``(4) Later actions.--
``(A) In general.--Except as provided in subparagraph (B),
the Administrator shall not issue any order under section 106
after the date of enactment of this section in connection
with a response action for which an allocation is required to
be performed under subsection (b)(1), or for which the
Administrator has initiated the allocation process under this
section, until the date that is 180 days after the date of
issuance of a report by the allocator under subsection (j)(5)
or of a second or subsequent report under subsection (r).
``(B) Emergencies.--Subparagraph (A) does not preclude an
order requiring the performance of a removal action that is
necessary to address an emergency situation at a facility.
``(5) Retained authority.--Except as specifically provided
in this section, this section does not affect the authority
of the Administrator to--
``(A) exercise the powers conferred by section 103, 104,
105, 106, or 122;
``(B) commence an action against a party if there is a
contemporaneous filing of a judicial consent decree resolving
the liability of the party; or
``(C) file a proof of claim or take other action in a
proceeding under title 11, United States Code.
``(d) Initiation of Allocation Process.--
``(1) Responsible party search.--For each facility
described in paragraph (2), the Administrator shall initiate
the allocation process as soon as practicable by commencing a
comprehensive search for all potentially responsible parties
with respect to the facility under authority of section 104.
``(2) Facilities.--The Administrator shall initiate the
allocation process for each--
``(A) mandatory allocation facility;
``(B) facility for which a request for allocation is made
under subsection (b)(2); and
``(C) facility that the Administrator considers to be
appropriate for allocation under subsection (b)(3).
``(3) Time limit.--The Administrator shall initiate the
allocation process for a facility not later than the earlier
of--
``(A) the date of completion of the facility evaluation or
remedial investigation for the facility; or
``(B) the date that is 60 days after the date of selection
of a removal action.
``(4) Submission of information.--Any person may submit
information to the Administrator concerning a potentially
responsible party for a facility that is subject to a search,
and the Administrator shall consider the information in
carrying out the search.
``(5) Initial list of parties.--
``(A) In general.--As soon as practicable after initiation
of an allocation process for a facility, the Administrator
shall publish, in accordance with section 117(d), a list of
all potentially responsible parties identified for a
facility.
``(B) Time limit.--The Administrator shall publish a list
under paragraph (1) not later than 120 days after the
commencement of a comprehensive search.
``(C) Copy of list.--The Administrator shall provide each
person named on a list of potentially responsible parties
with--
``(i) a copy of the list; and
``(ii) the names of not less than 25 neutral parties--
``(I) who are not employees of the United States;
``(II) who are qualified to perform an allocation at the
facility, as determined by the Administrator; and
``(III) at least some of whom maintain an office in the
vicinity of the facility.
``(D) Proposed allocator.--A person identified by the
Administrator as a potentially responsible party may propose
an allocator not on the list of neutral parties.
``(e) Selection of Allocator.--
``(1) In general.--As soon as practicable after the receipt
of a list under subsection (d)(5)(C), the potentially
responsible parties named on the list shall--
``(A) select an individual to serve as allocator by
plurality vote on a per capita basis; and
``(B) promptly notify the Administrator of the selection.
``(2) Vote by representative.--The representative of the
Fund shall be entitled to cast 1 vote in an election under
paragraph (1).
``(3) Eligible allocators.--The potentially responsible
parties shall select an allocator under paragraph (1) from
among individuals--
``(A) named on the list of neutral parties provided by the
Administrator;
``(B) named on a list that is current on the date of
selection of neutrals maintained by the American Arbitration
Association, the Center for Public Resources, the
Administrative Conference of the United States, or another
nonprofit or governmental organization of comparable
standing; or
``(C) proposed by a party under subsection (d)(5)(D).
``(4) Unqualified allocator.--
``(A) In general.--If the Administrator determines that a
person selected under paragraph (1) is unqualified to serve,
the Administrator shall promptly notify all potentially
responsible parties for the facility, and the potentially
responsible parties shall make an alternative selection under
paragraph (1).
``(B) Limit on determinations.--The Administrator may not
make more than 2 determinations that an allocator is
unqualified under this paragraph with respect to any
facility.
``(5) Determination by administrator.--If the Administrator
does not receive notice of selection of an allocator within
60 days after a copy of a list is provided under subsection
(d)(5)(C), or if the Administrator, having given a
notification under paragraph (4), does not receive notice of
an alternative selection of an allocator under that paragraph
within 60 days after the date of the notification, the
Administrator shall promptly select and designate a person to
serve as allocator.
``(6) Judicial review.--No action under this subsection
shall be subject to judicial review.
``(f) Retention of Allocator.--
``(1) In general.--On selection of an allocator, the
Administrator shall promptly--
``(A) contract with the allocator for the provision of
allocation services in accordance with this section; and
``(B) notify each person named as a potentially responsible
party at the facility that the allocator has been retained.
``(2) Discretion of allocator.--A contract with an
allocator under paragraph (1) shall give the allocator broad
discretion to conduct the allocation process in a fair,
efficient, and impartial manner.
``(3) Provision of information.--
``(A) In general.--Not later than 30 days after the
selection of an allocator, the Administrator shall make
available to the allocator and to each person named as a
potentially responsible party for the facility--
``(i) any information or documents furnished under section
104(e)(2); and
``(ii) any other potentially relevant information
concerning the facility and the potentially responsible
parties at the facility.
``(B) Privileged information.--The Administrator shall not
make available any privileged information, except as
otherwise authorized by law.
``(g) Additional Parties.--
``(1) In general.--Any person may propose to the allocator
the name of an additional potentially responsible party at a
facility, or otherwise provide the allocator with information
pertaining to a facility or to an allocation, until the date
that is 60 days after the later of--
``(A) the date of issuance of the initial list described in
subsection (d)(5)(A); or
``(B) the date of retention of the allocator under
subsection (f)(1)(A).
``(2) Nexus.--Any proposal under paragraph (1) to add a
potentially responsible party shall include all information
reasonably available to the person making the proposal
regarding the nexus between the additional potentially
responsible party and the facility.
``(3) Final list.--
``(A) In general.--The allocator shall issue a final list
of all parties that will be subject to the allocation process
(referred to in this section as the `allocation parties') not
later than 120 days after publication of the initial list
under subsection (d)(5)(A).
``(B) Standard.--The allocator shall include each party
proposed under paragraph (1) in the final list of allocation
parties unless the allocator determines that the party is not
potentially liable under section 107.
``(4) De micromis parties.--
``(A) Identification.--Not later than 120 days after the
filing of the initial list of parties under subsection
(d)(5)(A), the allocator shall issue a list identifying all
de micromis parties with respect to the facility based on an
evaluation of all evidence received at the time of the
issuance of the list with respect to the amount of hazardous
substances contributed by potentially responsible parties.
``(B) Notification.--The allocator shall notify each de
micromis party of its inclusion on the list under
subparagraph (A) not later than 20 days after the date of
issuance of the list.
``(C) Exemption from liability.--A person that is named on
the list under subparagraph (A) shall have no liability to
the United States or to any other person (including liability
for contribution), under Federal or State law, for a response
action or for any past, present, or future cost incurred at
the facility for a release identified in the facility
evaluation under section 129(b)(4) if the person takes no
other action after being included on the list that would give
rise to a separate basis for liability under this Act.
``(h) Federal, State, and Local Agencies.--
``(1) In general.--Notwithstanding any other law, any
Federal, State, or local governmental department, agency, or
instrumentality that is named as a potentially responsible
party or an allocation party shall be subject to, and be
entitled to the benefits
[[Page S 14726]]
of, the allocation process and allocation determination under this
section to the same extent as any other party.
``(2) Orphan share.--The Administrator or the Attorney
General shall participate in the allocation proceeding as the
representative of the Fund from which any orphan share shall
be paid.
``(i) Potentially Responsible Party Settlement.--
``(1) Submission.--At any time prior to the date of
issuance of an allocation report under subsection (j)(6) or
of a second or subsequent report under subsection (r), any
group of potentially responsible parties for a facility may
submit to the allocator a private allocation for any response
action that is within the scope of the allocation under
subsection (b)(6).
``(2) Adoption.--The allocator shall promptly adopt a
private allocation under paragraph (1) as the allocation
report if the private allocation--
``(A) is a binding allocation of 100 percent of the
recoverable costs of the response action that is the subject
of the allocation; and
``(B) does not allocate a share to--
``(i) any person who is not a signatory to the private
allocation; or
``(ii) any person whose share would be part of the orphan
share under subsection (l), unless the representative of the
Fund is a signatory to the private allocation.
``(3) Waiver of rights.--Any signatory to a private
allocation waives the right to seek from any other
potentially responsible party for a facility--
``(A) recovery of any response cost that is the subject of
the allocation; and
``(B) contribution under this Act with respect to any
response action that is within the scope of the allocation.
``(j) Allocation Determination.--
``(1) Allocation process.--An allocator retained under
subsection (f)(1) shall conduct an allocation process
culminating in the issuance of a written report with a
nonbinding equitable allocation of percentage shares of
responsibility for any response action that is within the
scope of the allocation under subsection (b)(6).
``(2) Copies of report.--An allocator shall provide the
report issued under paragraph (1) to the Administrator and to
the allocation parties.
``(3) Information-gathering authorities.--
``(A) In general.--An allocator may request information
from any person in order to assist in the efficient
completion of the allocation process.
``(B) Requests.--Any person may request that an allocator
request information under this paragraph.
``(C) Authority.--An allocator may exercise the
information-gathering authority of the Administrator under
section 104(e), including issuing an administrative subpoena
to compel the production of a document or the appearance of a
witness.
``(D) Disclosure.--Notwithstanding any other law, any
information submitted to the allocator in response to a
subpoena issued under paragraph (4) shall be exempt from
disclosure to any person under section 552 of title 5, United
States Code.
``(E) Orders.--In the event of contumacy or a failure of a
person to obey a subpoena issued under paragraph (4), an
allocator may request the Attorney General to--
``(i) bring a civil action to enforce the subpoena; or
``(ii) if the person moves to quash the subpoena, to defend
the motion.
``(F) Failure of attorney general to respond.--If the
Attorney General fails to provide any response to the
allocator within 30 days of a request for enforcement of a
subpoena or information request, the allocator may retain
counsel to commence a civil action to enforce the subpoena or
information request.
``(4) Additional authority.--An allocator may--
``(A) schedule a meeting or hearing and require the
attendance of allocation parties at the meeting or hearing;
``(B) sanction an allocation party for failing to cooperate
with the orderly conduct of the allocation process;
``(C) require that allocation parties wishing to present
similar legal or factual positions consolidate the
presentation of the positions;
``(D) obtain or employ support services, including
secretarial, clerical, computer support, legal, and
investigative services; and
``(E) take any other action necessary to conduct a fair,
efficient, and impartial allocation process.
``(5) Conduct of allocation process.--
``(A) In general.--The allocator shall conduct the
allocation process and render a decision based solely on the
provisions of this section, including the allocation factors
described in subsection (k).
``(B) Opportunity to be heard.--Each allocation party shall
be afforded an opportunity to be heard (orally or in writing,
at the option of an allocation party) and an opportunity to
comment on a draft allocation report.
``(C) Responses.--The allocator shall not be required to
respond to comments.
``(D) Streamlining.--In a case in which the expected
response costs are relatively low and the number of
potentially responsible parties is relatively small, the
allocator shall make every effort to streamline the
allocation process and minimize the cost of conducting the
allocation.
``(6) Allocation report.--
``(A) Deadline.--
``(i) In general.--The allocator shall provide a written
allocation report to the Administrator and the allocation
parties not later than 180 days after the date of issuance of
the final list of allocation parties under subsection
(g)(3)(A) that specifies the allocation share of each
potentially responsible party and any orphan shares, as
determined by the allocator.
``(ii) Extension.--On request by the allocator and for good
cause shown, the Administrator may extend the time to
complete the report by not more than 90 days.
``(B) Breakdown of allocation shares into time periods.--
The allocation share for each potentially responsible party
with respect to a mandatory allocation facility shall be
comprised of percentage shares of responsibility stated
separately for activity prior to December 11, 1980, and
activity on or after December 11, 1980.
``(C) Tax-exempt parties.--Of the percentage share of a
potentially responsible party that is a State, political
subdivision of a State, an agency or instrumentality of a
State or political subdivision, or is an organization that is
exempt from tax imposed by chapter 1 of the Internal Revenue
Code of 1986 (unless the organization is subject to the tax
imposed by 511 of the Internal Revenue Code of 1986) for
activity prior to December 11, 1980, that would be allocated
to that party but for this subparagraph--
``(i) 50 percent shall be allocated to that party; and
``(ii) 50 percent shall be allocated to the orphan share
under subsection (l).
``(k) Equitable Factors for Allocation.--The allocator
shall prepare a nonbinding allocation of percentage shares of
responsibility to each allocation party and to the orphan
share, in accordance with this section and without regard to
any theory of joint and several liability, based on--
``(1) the amount of hazardous substances contributed by
each allocation party;
``(2) the degree of toxicity of hazardous substances
contributed by each allocation party;
``(3) the mobility of hazardous substances contributed by
each allocation party;
``(4) the degree of involvement of each allocation party in
the generation, transportation, treatment, storage, or
disposal of hazardous substances;
``(5) the degree of care exercised by each allocation party
with respect to hazardous substances, taking into account the
characteristics of the hazardous substances;
``(6) the cooperation of each allocation party in
contributing to any response action and in providing complete
and timely information to the allocator; and
``(7) such other equitable factors as the allocator
determines are appropriate.
``(l) Orphan Shares.--
``(1) In general.--The allocator shall determine whether
any percentage of responsibility for the response action
shall be allocable to the orphan share.
``(2) Makeup of orphan share.--The orphan share shall
consist of--
``(A) any share that the allocator determines is
attributable to an allocation party that is insolvent or
defunct and that is not affiliated with any financially
viable allocation party;
``(B) any share allocated under subsection (j)(6)(C)(ii);
and
``(C) the difference between the aggregate share that the
allocator determines is attributable to a person and the
aggregate share actually assumed by the person in a
settlement with the United States if--
``(i) the person is eligible for an expedited settlement
with the United States under section 122 based on limited
ability to pay response costs;
``(ii) the person is eligible for an expedited settlement
with the United States under section 122 based on de minimis
contributions of hazardous substances to a facility;
``(iii) the liability of the person for the response action
is limited or reduced by any provision of this Act; or
``(iv) the person settled with the United States before the
completion of the allocation.
``(3) Unattributable shares.--A share attributed to a
hazardous substance that the allocator cannot attribute to
any identified party shall be distributed among the
allocation parties and the orphan share.
``(m) De Minimis Settlements.--
``(1) Identification.--As part of the allocation report
under subsection (j)(6), or at any time before the issuance
of the allocation report, the allocator shall issue a list
identifying all potentially responsible parties with respect
to the facility whose allocated share of liability is
determined to be 1.0 percent or less.
``(2) Settlement offer.--
``(A) Offer by the administrator.--Not later than 90 days
after the date of issuance of the allocation report under
subsection (j)(6) or the date of issuance of the list of de
minimis parties under paragraph (1), whichever is earlier,
the Administrator shall make a firm written offer of
settlement to all de minimis parties.
``(B) Amount.--The amount of the settlement offer for a de
minimis party--
``(i) shall be stated in dollars, not a percentage share of
the cleanup costs; and
``(ii) shall be based on the Administrator's estimate of
the total cleanup cost at the facility multiplied by the de
minimis party's allocated share, as determined by the
allocator.
[[Page S 14727]]
``(C) Single estimate and premium.--All settlement offers
by the Administrator to de minimis parties at a facility
shall be based on the same estimate of cleanup costs and the
same premium.
``(D) No judicial review.--A settlement offer under this
paragraph is not subject to judicial review.
``(3) Acceptance.--
``(A) Deadline.--A de minimis party may accept or decline a
settlement offer, but any acceptance of the offer shall be
made within 60 days after receipt of the offer.
``(B) Resolution of liability.--A de minimis party that
accepts the offer may resolve the party's liability to the
United States by paying the amount of the offer to the
Hazardous Substance Superfund established under subparagraph
(A) of chapter 98 of the Internal Revenue Code of 1986.
``(C) No reopening.--Settlement under this subsection may
not be reopened after payment is made except on the ground of
fraud.
``(4) No further liability.--A de minimis party that
accepts a settlement offer and pays the amount of the offer
shall have no other liability, under Federal or State law, to
any person for a response action or for any past, present, or
future costs incurred at the facility for a release
identified in the facility evaluation under section 129(b)(4)
if the de minimis party takes no other actions after making
the payment that would give rise to a separate basis for
liability of the de minimis party under this Act.
``(5) Application of proceeds.--
``(A) Proceeds representing allocated shares.--All proceeds
from a de minimis settlement under this subsection that
represent the allocated share of a de minimis party for a
facility shall be held by the Administrator for timely
payment directly to the person performing the response action
at the facility.
``(B) Excess amounts.--Any amounts of a settlement
remaining in the Fund after completion of the response action
shall be available for other authorized uses.
``(n) Information Requests.--
``(1) Duty to answer.--Each person that receives an
information request or subpoena from the allocator shall
provide a full and timely response to the request.
``(2) Certification.--An answer to an information request
by an allocator shall include a certification by a
representative that meets the criteria established in section
270.11(a) of title 40, Code of Federal Regulations (or any
successor regulation), that--
``(A) the answer is correct to the best of the
representative's knowledge;
``(B) the answer is based on a diligent good faith search
of records in the possession or control of the person to whom
the request was directed;
``(C) the answer is based on a reasonable inquiry of the
current (as of the date of the answer) officers, directors,
employees, and agents of the person to whom the request was
directed;
``(D) the answer accurately reflects information obtained
in the course of conducting the search and the inquiry;
``(E) the person executing the certification understands
that there is a duty to supplement any answer if, during the
allocation process, any significant additional, new, or
different information becomes known or available to the
person; and
``(F) the person executing the certification understands
that there are significant penalties for submitting false
information, including the possibility of a fine or
imprisonment for a knowing violation.
``(o) Penalties.--
``(1) Civil.--
``(A) In general.--A person that fails to submit a complete
and timely answer to an information request, a request for
the production of a document, or a summons from an allocator,
submits a response that lacks the certification required
under subsection (n)(2), or knowingly makes a false or
misleading material statement or representation in any
statement, submission, or testimony during the allocation
process (including a statement or representation in
connection with the nomination of another potentially
responsible party) shall be subject to a civil penalty of not
more than $10,000 per day of violation.
``(B) Assessment of penalty.--A penalty may be assessed by
the Administrator in accordance with section 109 or by any
allocation party in a citizen suit brought under section 310.
``(2) Criminal.--A person that knowingly and willfully
makes a false material statement or representation in the
response to an information request or subpoena issued by the
allocator under subsection (n) shall be considered to have
made a false statement on a matter within the jurisdiction of
the United States within the meaning of section 1001 of title
18, United States Code.
``(p) Document Repository; Confidentiality.--
``(1) Document repository.--
``(A) In general.--The allocator shall establish and
maintain a document repository containing copies of all
documents and information provided by the Administrator or
any allocation party under this section or generated by the
allocator during the allocation process.
``(B) Availability.--Subject to paragraph (2), the
documents and information in the document repository shall be
available only to an allocation party for review and copying
at the expense of the allocation party.
``(2) Confidentiality.--
``(A) In general.--Each document or material submitted to
the allocator or placed in the document repository and the
record of any information generated or obtained during the
allocation process shall be confidential.
``(B) Maintenance.--The allocator, each allocation party,
the Administrator, and the Attorney General--
``(i) shall maintain the documents, materials, and records
of any depositions or testimony adduced during the allocation
as confidential; and
``(ii) shall not use any such document or material or the
record in any other matter or proceeding or for any purpose
other than the allocation process.
``(C) Disclosure.--Notwithstanding any other law, the
documents and materials and the record shall not be subject
to disclosure to any person under section 552 of title 5,
United States Code.
``(D) Discovery and admissibility.--
``(i) In general.--Subject to clause (ii), the documents
and materials and the record shall not be subject to
discovery or admissible in any other Federal, State, or local
judicial or administrative proceeding, except--
``(I) a new allocation under subsection (r) or (w) for the
same response action; or
``(II) an initial allocation under this section for a
different response action at the same facility.
``(ii) Otherwise discoverable or admissible.--
``(I) Document or material.--If the original of any
document or material submitted to the allocator or placed in
the document repository was otherwise discoverable or
admissible from a party, the original document, if
subsequently sought from the party, shall remain discoverable
or admissible.
``(II) Facts.--If a fact generated or obtained during the
allocation was otherwise discoverable or admissible from a
witness, testimony concerning the fact, if subsequently
sought from the witness, shall remain discoverable or
admissible.
``(3) No waiver of privilege.--The submission of testimony,
a document, or information under the allocation process shall
not constitute a waiver of any privilege applicable to the
testimony, document, or information under any Federal or
State law or rule of discovery or evidence.
``(4) Procedure if disclosure sought.--
``(A) Notice.--A person that receives a request for a
statement, document, or material submitted for the record of
an allocation proceeding, shall--
``(i) promptly notify the person that originally submitted
the item or testified in the allocation proceeding; and
``(ii) provide the person that originally submitted the
item or testified in the allocation proceeding an opportunity
to assert and defend the confidentiality of the item or
testimony.
``(B) Release.--No person may release or provide a copy of
a statement, document, or material submitted, or the record
of an allocation proceeding, to any person not a party to the
allocation except--
``(i) with the written consent of the person that
originally submitted the item or testified in the allocation
proceeding; or
``(ii) as may be required by court order.
``(5) Civil penalty.--
``(A) In general.--A person that fails to maintain the
confidentiality of any statement, document, or material or
the record generated or obtained during an allocation
proceeding, or that releases any information in violation of
this section, shall be subject to a civil penalty of not more
than $25,000 per violation.
``(B) Assessment of penalty.--A penalty may be assessed by
the Administrator in accordance with section 109 or by any
allocation party in a citizen suit brought under section 310.
``(C) Defenses.--In any administrative or judicial
proceeding, it shall be a complete defense that any
statement, document, or material or the record at issue under
subparagraph (A)--
``(i) was in, or subsequently became part of, the public
domain, and did not become part of the public domain as a
result of a violation of this subsection by the person
charged with the violation;
``(ii) was already known by lawful means to the person
receiving the information in connection with the allocation
process; or
``(iii) became known to the person receiving the
information after disclosure in connection with the
allocation process and did not become known as a result of
any violation of this subsection by the person charged with
the violation.
``(q) Rejection of Allocation Report.--
``(1) Rejection.--The Administrator and the Attorney
General may jointly reject a report issued by an allocator
only if the Administrator and the Attorney General jointly
publish, not later than 180 days after the Administrator
receives the report, a written determination that--
``(A) no rational interpretation of the facts before the
allocator, in light of the factors required to be considered,
would form a reasonable basis for the shares assigned to the
parties; or
``(B) the allocation process was directly and substantially
affected by bias, procedural error, fraud, or unlawful
conduct.
``(2) Finality.--A report issued by an allocator may not be
rejected after the date that is 180 days after the date on
which the United States accepts a settlement offer (excluding
a de minimis or other expedited settlement under section 122)
based on the allocation.
[[Page S 14728]]
``(3) Judicial review.--Any determination by the
Administrator or the Attorney General under this subsection
shall not be subject to judicial review unless 2 successive
allocation reports relating to the same response action are
rejected, in which case any allocation party may obtain
judicial review of the second rejection in a United States
district court under subchapter II of chapter 5 of part I of
title 5, United States Code.
``(4) Standard of review.--In a proceeding on review of a
rejection of an allocation report under subparagraph (3), the
court shall, notwithstanding section 706(2)(E) of title 5,
United States Code, hold unlawful and set aside actions,
findings, and conclusions found to be unsupported by
substantial evidence.
``(5) Delegation.--The authority to make a determination
under this subsection may not be delegated to any officer or
employee below the level of an Assistant Administrator or
Acting Assistant Administrator or an Assistant Attorney
General or Acting Assistant Attorney General with authority
for implementing this Act.
``(r) Second and Subsequent Allocations.--
``(1) In general.--If a report is rejected under subsection
(q), the allocation parties shall select an allocator under
subsection (e) to perform, on an expedited basis, a new
allocation based on the same record available to the previous
allocator.
``(2) Moratorium and tolling.--The moratorium and tolling
provisions of subsection (c) shall be extended until the date
that is 180 days after the date of the issuance of any second
or subsequent allocation report under paragraph (1).
``(3) Same allocator.--The allocation parties may select
the same allocator who performed 1 or more previous
allocations at the facility, except that the Administrator
may determine under subsection (e) that an allocator whose
previous report at the same facility has been rejected under
subsection (q) is unqualified to serve.
``(s) Settlements Based on Allocations.--
``(1) Definition.--In this subsection, the term `all
settlements' includes any orphan share allocated under
subsection (l).
``(2) In general.--Unless an allocation report is rejected
under subsection (q), any allocation party with respect to a
mandatory allocation facility shall be entitled to resolve
the liability of the party to the United States for response
actions subject to allocation if, not later than 90 days
after the date of issuance of a report by the allocator, the
party--
``(A) offers to settle with the United States based on the
percentage share specified by the allocator; and
``(B) agrees to the other terms and conditions stated in
this subsection.
``(3) Provisions of settlements.--
``(A) In general.--A settlement based on an allocation
under this section--
``(i) may consist of a cash-out settlement or an agreement
for the performance of a response action; and
``(ii) shall include--
``(I) a waiver of contribution rights against all persons
that are potentially responsible parties for any response
action addressed in the settlement;
``(II) a covenant not to sue that is consistent with
section 122(f) and, except in the case of a cash-out
settlement, provisions regarding performance or adequate
assurance of performance of the response action;
``(III) a premium, calculated on a facility-specific basis
and subject to the limitations on premiums stated in
paragraph (5), that reflects the actual risk to the United
States of not collecting unrecovered response costs for the
response action, despite the diligent prosecution of
litigation against any viable allocation party that has not
resolved the liability of the party to the United States,
except that no premium shall apply if all allocation parties
participate in the settlement or if the settlement covers 100
percent of the response costs subject to the allocation;
``(IV) complete protection from all claims for contribution
regarding the response action addressed in the settlement;
and
``(V) provisions through which a settling party shall
receive prompt reimbursement from the Fund under subsection
(t) of any response costs incurred by the party for any
response action that is the subject of the allocation in
excess of the allocated share of the party, including the
allocated portion of any orphan share.
``(B) Right to reimbursement.--A right to reimbursement
under subparagraph (A)(ii)(V) shall not be contingent on
recovery by the United States of any response costs from any
person other than the settling party.
``(4) Report.--The Administrator shall report annually to
Congress on the administration of the allocation process
under this section, providing in the report--
``(A) information comparing allocation results with actual
settlements at multiparty facilities;
``(B) a cumulative analysis of response action costs
recovered through post-allocation litigation or settlements
of post-allocation litigation;
``(C) a description of any impediments to achieving
complete recovery; and
``(D) a complete accounting of the costs incurred in
administering and participating in the allocation process.
``(5) Premium.--In each settlement under this subsection,
the premium authorized--
``(A) shall be determined on a case-by-case basis to
reflect the actual litigation risk faced by the United States
with respect to any response action addressed in the
settlement; but
``(B) shall not exceed--
``(i) 5 percent of the total costs assumed by a settling
party if all settlements (including any orphan share) account
for more than 80 percent and less than 100 percent of
responsibility for the response action;
``(ii) 10 percent of the total costs assumed by a settling
party if all settlements (including any orphan share) account
for more than 60 percent and not more than 80 percent of
responsibility for the response action;
``(iii) 15 percent of the total costs assumed by a settling
party if all settlements (including any orphan share) account
for more than 40 percent and not more than 60 percent of
responsibility for the response action; or
``(iv) 20 percent of the total costs assumed by a settling
party if all settlements (including any orphan share) account
for 40 percent or less of responsibility for the response
action.
``(t) Funding of Orphan Shares.--
``(1) Reimbursement.--For each settlement agreement entered
into under subsection (s), and for each administrative order
that satisfies the requirements of subsection (u), the
Administrator shall promptly reimburse the allocation parties
for any costs incurred that are attributable to the orphan
share, as determined by the allocator.
``(2) Entitlement.--Paragraph (1) constitutes an
entitlement to any allocation party eligible to receive a
reimbursement.
``(3) Amounts owed.--Any amount due and owing in excess of
available appropriations in any fiscal year shall be paid
from amounts made available in subsequent fiscal years, along
with interest on the unpaid balances at the rate equal to
that of the current average market yield on outstanding
marketable obligations of the United States with a maturity
of 1 year.
``(4) Documentation and auditing.--The Administrator--
``(A) shall require that any claim for reimbursement be
supported by documentation of actual costs incurred; and
``(B) may require an independent auditing of any claim for
reimbursement.
``(u) Administrative Order Reimbursement.--
``(1) In general.--An allocation party that is ordered to
perform, and does perform, a response action that is the
subject of an allocation under this section to an extent that
exceeds the percentage share of the allocation party, as
determined by the allocator, shall be entitled to prompt
reimbursement of the excess amount, including any orphan
share, from the Fund, unless the allocation report is
rejected under subsection (q).
``(2) Not contingent.--The right to reimbursement under
paragraph (1) shall not be contingent on recovery by the
United States of a response cost from any other person.
``(3) Terms and conditions.--
``(A) Risk premium.--A reimbursement shall be reduced by
the amount of the litigation risk premium under subsection
(s)(4) that would apply to a settlement by the allocation
party concerning the response action, based on the total
allocated shares of the parties that have not reached a
settlement with the United States.
``(B) Timing.--
``(i) In general.--A reimbursement shall be paid out during
the course of the response action that was the subject of the
allocation, using reasonable progress payments at significant
milestones.
``(ii) Construction.--Reimbursement for the construction
portion of the work shall be paid out not later than 120 days
after the date of completion of the construction.
``(C) Equitable offset.--A reimbursement is subject to
equitable offset or recoupment by the Administrator at any
time if the allocation party fails to perform the work in a
proper and timely manner.
``(D) Independent auditing.--The Administrator may require
independent auditing of any claim for reimbursement.
``(E) Waiver.--An allocation party seeking reimbursement
waives the right to seek recovery of response costs in
connection with the response action, or contribution toward
the response costs, from any other person.
``(F) Bar.--An administrative order shall be in lieu of any
action by the United States or any other person against the
allocation party for recovery of response costs in connection
with the response action, or for contribution toward the
costs of the response action.
``(v) Post-Settlement Litigation.--
``(1) In general.--Subject to subsections (r) and (s), and
on the expiration of the moratorium period under subsection
(c)(4), the Administrator may commence an action under
section 107 against an allocation party that has not resolved
the liability of the party to the United States following
allocation and may seek to recover response costs not
recovered through settlements with other persons.
``(2) Orphan share.--The recoverable costs shall include
any orphan share determined under subsection (l), but shall
not include any share allocated to a Federal, State, or local
governmental agency, department, or instrumentality.
``(3) Impleader.--A defendant in an action under paragraph
(1) may implead an allocation party only if the allocation
party did not resolve liability to the United States.
``(4) Certification.--In commencing or maintaining an
action under section 107
[[Page S 14729]]
against an allocation party after the expiration of the moratorium
period under subsection (c)(4), the Attorney General shall
certify in the complaint that the defendant failed to settle
the matter based on the share that the allocation report
assigned to the party.
``(5) Response costs.--
``(A) Allocation procedure.--The cost of implementing the
allocation procedure under this section, including reasonable
fees and expenses of the allocator, shall be considered as a
necessary response cost.
``(B) Funding orphan shares.--The cost attributable to
funding an orphan share under this section--
``(i) shall be considered as a necessary cost of response
cost; and
``(ii) shall be recoverable in accordance with section 107
only from an allocation party that does not reach a
settlement and does not receive an administrative order under
subsection (s) or (u).
``(w) New Information.--
``(1) In general.--An allocation under this section shall
be final, except that any settling party, including the
United States, may seek a new allocation with respect to the
response action that was the subject of the settlement by
presenting the Administrator with clear and convincing
evidence that--
``(A) the allocator did not have information concerning--
``(i) 35 percent or more of the materials containing
hazardous substances at the facility; or
``(ii) 1 or more persons not previously named as an
allocation party that contributed 15 percent or more of
materials containing hazardous substances at the facility;
and
``(B) the information was discovered subsequent to the
issuance of the report by the allocator.
``(2) New allocation.--Any new allocation of
responsibility--
``(A) shall proceed in accordance with this section;
``(B) shall be effective only after the date of the new
allocation report; and
``(C) shall not alter or affect the original allocation
with respect to any response costs previously incurred.
``(x) Allocator's Discretion.--The Administrator shall not
issue any rule or order that limits the discretion of the
allocator in the conduct of the allocation.''.
SEC. 502. LIABILITY OF RESPONSE ACTION CONTRACTORS.
(a) Liability of Contractors.--Section 101(20) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601(20)), as amended by
section 303(a), is amended by adding at the end the
following:
``(G) Liability of contractors.--
``(i) In general.--The term `owner or operator' does not
include a response action contractor (as defined in section
119(e)).
``(ii) Liability limitations.--A person described in clause
(i) shall not, in the absence of negligence by the person, be
considered to--
``(I) cause or contribute to any release or threatened
release of a hazardous substance, pollutant, or contaminant;
``(II) arrange for disposal or treatment of a hazardous
substance, pollutant, or contaminant;
``(III) arrange with a transporter for transport or
disposal or treatment of a hazardous substance, pollutant, or
contaminant; or
``(IV) transport a hazardous substance, pollutant, or
contaminant.
``(iii) Exception.--This subparagraph does not apply to a
person potentially responsible under section 106 or 107 other
than a person associated solely with the provision of a
response action or a service or equipment ancillary to a
response action.''.
(b) National Uniform Negligence Standard.--Section 119(a)
of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9619(a)) is amended--
(1) in paragraph (1) by striking ``title or under any other
Federal law'' and inserting ``title, under any other Federal
or State law''; and
(2) in paragraph (2)--
(A) by striking ``Paragraph (1)'' and inserting the
following:
``(A) In general.--Paragraph (1)''; and
(B) by adding at the end the following:
``(B) Standard.--Conduct under subparagraph (A) shall be
evaluated based on the generally accepted standards and
practices in effect at the time and place at which the
conduct occurred.
``(C) Plan.--An activity performed in accordance with a
plan that was approved by the Administrator shall not be
considered to constitute negligence under subparagraph
(A).''.
(c) Extension of Indemnification Authority.--Section
119(c)(1) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9619(c)(1)) is amended by adding at the end the following:
``The agreement may apply to a claim for negligence arising
under Federal or State law.''.
(d) Indemnification Determinations.--Section 119(c) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9619(c)) is amended by
striking paragraph (4) and inserting the following:
``(4) Decision to indemnify.--
``(A) In general.--For each response action contract for a
vessel or facility, the Administrator shall make a decision
whether to enter into an indemnification agreement with a
response action contractor.
``(B) Standard.--The Administrator shall enter into an
indemnification agreement to the extent that the potential
liability (including the risk of harm to public health,
safety, environment, and property) involved in a response
action exceed or are not covered by insurance available to
the contractor at the time at which the response action
contract is entered into that is likely to provide adequate
long-term protection to the public for the potential
liability on fair and reasonable terms (including
consideration of premium, policy terms, and deductibles).
``(C) Diligent efforts.--The Administrator shall enter into
an indemnification agreement only if the Administrator
determines that the response action contractor has made
diligent efforts to obtain insurance coverage from non-
Federal sources to cover potential liabilities.
``(D) Continued diligent efforts.--An indemnification
agreement shall require the response action contractor to
continue, not more frequently than annually, to make diligent
efforts to obtain insurance coverage from non-Federal sources
to cover potential liabilities.
``(E) Limitations on indemnification.--An indemnification
agreement provided under this subsection shall include
deductibles and shall place limits on the amount of
indemnification made available in amounts determined by the
contracting agency to be appropriate in light of the unique
risk factors associated with the cleanup activity.''.
(e) Indemnification for Threatened Releases.--Section
119(c)(5)(A) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9619(c)(5)(A)) is amended by inserting ``or threatened
release'' after ``release'' each place it appears.
(f) Extension of Coverage to All Response Actions.--Section
119(e)(1) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9619(e)(1)) is amended--
(1) in subparagraph (D) by striking ``carrying out an
agreement under section 106 or 122''; and
(2) in the matter following subparagraph (D)--
(A) by striking ``any remedial action under this Act at a
facility listed on the National Priorities List, or any
removal under this Act,'' and inserting ``any response
action,''; and
(B) by inserting before the period at the end the
following: ``or to undertake appropriate action necessary to
protect and restore any natural resource damaged by the
release or threatened release''.
(g) Definition of Response Action Contractor.--Section
119(e)(2)(A)(i) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9619(e)(2)(A)(i)) is amended by striking ``and is carrying
out such contract'' and inserting ``covered by this section
and any person (including any subcontractor) hired by a
response action contractor''.
(h) Surety Bonds.--Section 119 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9619) is amended--
(1) in subsection (e)(2)(C) by striking ``, and before
January 1, 1996,''; and
(2) in subsection (g)(5) by striking ``, or after December
31, 1995''.
(i) National Uniform Statute of Repose.--Section 119 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9619) is amended by adding
at the end the following:
``(h) Limitation on Actions Against Response Action
Contractors.--
``(1) In general.--No action may be brought as a result of
the performance of services under a response contract against
a response action contractor after the date that is 7 years
after the date of completion of work at any facility under
the contract to recover--
``(A) injury to property, real or personal;
``(B) personal injury or wrongful death;
``(C) other expenses or costs arising out of the
performance of services under the contract; or
``(D) contribution or indemnity for damages sustained as a
result of an injury described in subparagraphs (A) through
(C).
``(2) Exception.--Paragraph (1) does not bar recovery for a
claim caused by the conduct of the response action contractor
that is grossly negligent or that constitutes intentional
misconduct.
``(3) Indemnification.--This subsection does not affect any
right of indemnification that a response action contractor
may have under this section or may acquire by contract with
any person.
``(i) State Standards of Negligence.--Subsection (a)(1) and
subsection (h) shall not apply in determining the liability
of a response action contractor if the State has enacted,
after the date of enactment of this subsection, a statute of
repose determining the liability of a response action
contractor.''.
SEC. 503. RELEASE OF EVIDENCE.
(a) Timely Access to Information Furnished Under Section
104(e).--Section 104(e)(7)(A) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9604(e)(7)(A)) is amended by inserting after
``shall be available to the public'' the following: ``not
later than 14 days after the records, reports, or information
is obtained''.
[[Page S 14730]]
(b) Requirement To Provide Potentially Responsible Parties
Evidence of Liability.--
(1) Abatement actions.--Section 106(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9606(a)) is amended--
(A) by striking ``(a) In addition'' and inserting the
following: ``(a) Order.--''
``(1) In general.--In addition''; and
(B) by adding at the end the following:
``(2) Contents of order.--An order under paragraph (1)
shall provide information concerning the evidence that
indicates that each element of liability described in section
107(a)(1) (A), (B), (C), and (D), as applicable, is
present.''.
(2) Settlements.--Section 122(e)(1) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9622(e)(1)) is amended by inserting after
subparagraph (C) the following:
``(D) For each potentially responsible party, the evidence
that indicates that each element of liability contained in
section 107(a)(1) (A), (B), (C), and (D), as applicable, is
present.''.
SEC. 504. CONTRIBUTION PROTECTION.
(a) No Liability for Cost Recovery After Settlement.--
Section 113(f)(2) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9613(f)(2)) is amended in the first sentence by inserting
``or cost recovery'' after ``contribution''.
(b) Definitions.--Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601), as amended by section 401, is amended
by adding at the end the following:
``(48) Allocated share.--The term `allocated share' means
the percentage of liability assigned to a potentially
responsible party by the allocator in an allocation report
under section 132(j)(6).
``(49) De micromis party.--The term `de micromis party'
means a potentially responsible party that is a generator or
transporter that contributed not more than 200 pounds or not
more than 110 gallons of material containing hazardous
substances at a facility, or such greater or lesser amount as
the Administrator may determine by regulation.
``(50) De minimis party.--The term `de minimis party' means
a liable party whose assigned share of liability is
determined to be 1.0 percent or less in an allocation report
under section 132.
``(51) Orphan share.--The term `orphan share' means the
total of the allocated shares determined by the allocator
under section 132(l).
SEC. 505. TREATMENT OF RELIGIOUS, CHARITABLE, SCIENTIFIC, AND
EDUCATIONAL ORGANIZATIONS AS OWNERS OR
OPERATORS.
(a) Definition.--Section 101(20) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601(20)), as amended by section 502(a), is
amended by adding at the end the following:
``(H) Religious, charitable, scientific, and educational
organizations.--The term `owner or operator' includes an
organization described in section 501(c)(3) of the Internal
Revenue Code of 1986 that is organized and operated
exclusively for religious, charitable, scientific, or
educational purposes and that holds legal or equitable title
to a vessel or facility.''.
(b) Limitation on Liability.--Section 107 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607), as amended by section
306(b), is amended by adding at the end the following:
``(r) Religious, Charitable, Scientific, and Educational
Organizations.--
``(1) Limitation on liability.--Subject to paragraph (2),
if an organization described in section 101(20)(I) holds
legal or equitable title to a vessel or facility as a result
of a charitable gift that is allowable as a deduction under
section 170, 2055, or 2522 of the Internal Revenue Code of
1986 (determined without regard to dollar limitations), the
liability of the organization shall be limited to the lesser
of the fair market value of the vessel or facility or the
actual proceeds of the sale of the vessel or facility
received by the organization.
``(2) Conditions.--In order for an organization described
in section 101(20)(I) to be eligible for the limited
liability described in paragraph (1), the organization
shall--
``(A) provide full cooperation, assistance, and vessel or
facility access to persons authorized to conduct response
actions at the vessel or facility, including the cooperation
and access necessary for the installation, preservation of
integrity, operation, and maintenance of any complete or
partial response action at the vessel or facility;
``(B) provide full cooperation and assistance to the United
States in identifying and locating persons who recently
owned, operated, or otherwise controlled activities at the
vessel or facility;
``(C) establish by a preponderance of the evidence that all
active disposal of hazardous substances at the vessel or
facility occurred before the organization acquired the vessel
or facility; and
``(D) establish by a preponderance of the evidence that the
organization did not cause or contribute to a release or
threatened release of hazardous substances at the vessel or
facility.
``(3) Limitation.--Nothing in this subsection affects the
liability of a person other than a person described in
section 101(20)(G) that meets the conditions specified in
paragraph (2).''.
SEC. 506. COMMON CARRIERS.
Section 107(b)(3) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9607(b)(3)) is amended by striking ``a published tariff and
acceptance'' and inserting ``a contract''.
SEC. 507. LIMITATION ON LIABILITY FOR RESPONSE COSTS.
Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607), as
amended by section 505(b), is amended by adding at the end
the following:
``(s) Limitation on Liability of Railroad Owners.--
Notwithstanding subsection (a)(1), a person that does not
impede the performance of a response action or natural
resource restoration shall not be liable under this Act to
the extent that liability is based solely on the status of
the person as a railroad owner or operator of a spur track,
including a spur track over land subject to an easement, to a
facility that is owned or operated by a person that is not
affiliated with the railroad owner or operator, if--
``(1) the spur track provides access to a main line or
branch line track that is owned or operated by the railroad;
``(2) the spur track is 10 miles long or less; and
``(3) the railroad owner or operator does not cause or
contribute to a release or threatened release at the spur
track.''.
TITLE VI--FEDERAL FACILITIES
SEC. 601. TRANSFER OF AUTHORITIES.
Section 120 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9620) is
amended by striking subsection (g) and inserting the
following:
``(g) Transfer of Authorities.--
``(1) Definitions.--In this section:
``(A) Interagency agreement.--The term `interagency
agreement' means an interagency agreement under section 120.
``(B) Transfer agreement.--The term `transfer agreement'
means a transfer agreement under paragraph (3).
``(C) Transferee state.--The term `transferee State' means
a State to which authorities have been transferred under a
transfer agreement.
``(2) State application for transfer of authorities.--A
State may apply to the Administrator to exercise the
authorities vested in the Administrator under this Act at any
facility owned or operated by any department, agency, or
instrumentality of the United States (including the
executive, legislative, and judicial branches of government)
located in the State.
``(3) Transfer of authorities.--
``(A) Determinations.--The Administrator shall enter into a
transfer agreement to transfer to a State the authorities
described in paragraph (2) if the Administrator determines
that--
``(i) the State has the ability to exercise such
authorities in accordance with this Act, including adequate
legal authority, financial and personnel resources,
organization, and expertise;
``(ii) the State has demonstrated experience in exercising
similar authorities;
``(iii) the State has agreed to be bound by all Federal
requirements and standards under section 129 governing the
design and implementation of the facility evaluation,
remedial action plan, and remedial design; and
``(iv) the State has agreed to abide by the terms of any
interagency agreement or agreements covering the Federal
facility or facilities with respect to which authorities are
being transferred in effect at the time of the transfer of
authorities.
``(B) Contents of transfer agreement.--A transfer
agreement--
``(i) shall incorporate the determinations of the
Administrator under subparagraph (A); and
``(ii) in the case of a transfer agreement covering a
facility with respect to which there is no interagency
agreement that specifies a dispute resolution process, shall
require that within 120 days after the effective date of the
transfer agreement, the State shall agree with the head of
the Federal department, agency, or instrumentality that owns
or operates the facility on a process for resolution of any
disputes between the State and the Federal department,
agency, or instrumentality regarding the selection of a
remedial action for the facility; and
``(iii) shall not impose on the transferee State any term
or condition other than that the State meet the requirements
of subparagraph (A).
``(4) Effect of transfer.--
``(A) State authorities.--A transferee State--
``(i) shall not be deemed to be an agent of the
Administrator but shall exercise the authorities transferred
under a transfer agreement in the name of the State; and
``(ii) shall have exclusive authority to determine the
manner in which those authorities are implemented.
``(B) Effect on interagency agreements.--Nothing in this
subsection shall require, authorize, or permit the
modification or revision of an interagency agreement covering
a facility with respect to which authorities have been
transferred to a State under a transfer agreement (except for
the substitution of the transferee State for the
Administrator in the terms of the interagency agreement,
including terms stating
[[Page S 14731]]
obligations intended to preserve the confidentiality of information)
without the written consent of the Governor of the State and
the head of the department, agency, or instrumentality.
``(5) Selected remedial action.--The remedial action
selected for a facility under section 129 by a transferee
State shall constitute the only remedial action required to
be conducted at the facility, and the transferee State shall
be precluded from enforcing any other remedial action
requirement under Federal or State law, except for--
``(A) any corrective action activity under the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.) that was initiated
prior to the date of enactment of this subsection; and
``(B) any remedial action in excess of remedial action
under section 129 that the State selects in accordance with
paragraph (8).
``(6) Deadline.--
``(A) In general.--The Administrator shall make a
determination on an application by a State under paragraph
(2) not later than 120 days after the date on which the
Administrator receives the application.
``(B) Failure to act.--If the Administrator does not issue
a notice of approval or notice of disapproval of an
application within the time period stated in subparagraph
(A), the application shall be deemed to have been granted.
``(7) Resubmission of application.--
``(A) In general.--If the Administrator disapproves an
application under paragraph (1), the State may resubmit the
application at any time after receiving the notice of
disapproval.
``(B) Failure to act.--If the Administrator does not issue
a notice of approval or notice of disapproval of a
resubmitted application within the time period stated in
paragraph (6)(A), the resubmitted application shall be deemed
to have been granted.
``(8) Judicial review.--
``(A) In general.--A disapproval of a resubmitted
application shall be subject to judicial review under section
113(b).
``(B) Standard of review.--In a proceeding on review of a
disapproval of a resubmitted application, the court shall,
notwithstanding section 706(2)(E) of title 5, United States
Code, hold unlawful and set aside actions, findings, and
conclusions found to be unsupported by substantial evidence.
``(9) Withdrawal of authorities.--The Administrator may
withdraw the authorities transferred under a transfer
agreement in whole or in part if the Administrator determines
that the State--
``(A) is exercising the authorities, in whole or in part,
in a manner that is inconsistent with the requirements of
this Act;
``(B) has violated the transfer agreement, in whole or in
part; or
``(C) no longer meets one of the requirements of paragraph
(3).
``(10) State cost responsibility.--The State may require a
remedial action that exceeds Federal standards (including the
remedial action selection requirements of section 121) if the
State pays the incremental cost of implementing that remedial
action over the most cost-effective remedial action that
would result from the application of section 129.
``(11) Dispute resolution and enforcement.--
``(A) Dispute resolution.--
``(i) Facilities covered by both a transfer agreement and
an interagency agreements.--In the case of a facility with
respect to which there is both a transfer agreement and an
interagency agreement, if the State does not concur in the
remedial action proposed for selection by the Federal
department, agency, or instrumentality, the Federal
department, agency, or instrumentality and the State shall
engage in the dispute resolution process provided for in the
interagency agreement, except that the final level for
resolution of the dispute shall be the head of the Federal
department, agency, or instrumentality and the Governor of
the State.
``(ii) Facilities covered by a transfer agreement but not
an interagency agreement.--In the case of a facility with
respect to which there is a transfer agreement but no
interagency agreement, if the State does not concur in the
remedial action proposed for selection by the Federal
department, agency, or instrumentality, the Federal
department, agency, or instrumentality and the State shall
engage in dispute resolution as provide in paragraph
(3)(B)(ii) under which the final level for resolution of the
dispute shall be the head of the Federal department, agency,
or instrumentality and the Governor of the State.
``(iii) Failure to resolve.--If no agreement is reached
between the head of the Federal department, agency, or
instrumentality and the Governor in a dispute resolution
process under clause (i) or (ii), the Governor of the State
shall make the final determination regarding selection of a
remedial action.
``(B) Enforcement.--
``(i) In general.--An interagency agreement with respect to
which there is a transfer agreement or an order issued by a
transferee State shall be enforceable by a transferee State
or by the Federal department, agency, or instrumentality that
is a party to the interagency agreement in the United States
district court for the district in which the facility is
located.
``(ii) Remedies.--The district court shall have the
jurisdiction to--
``(I) enforce compliance with any provision, standard,
regulation, condition, requirement, order, or final
determination that has become effective under the interagency
agreement;
``(II) impose any appropriate civil penalty provided for
any violation of an interagency agreement, not to exceed
$25,000 per day;
``(III) compel implementation of the selected remedial
action; and
``(IV) review a challenge by the Federal department,
agency, or instrumentality to the remedial action selected by
the State, in accordance with section 113(j).
``(12) Community participation.--If, prior to June 15,
1995, a Federal department, agency, or instrumentality had
established for a facility covered by a transfer agreement a
facility-specific advisory board or other community-based
advisory group (designated as a `site-specific advisory
board', a `response action advisory board', or otherwise),
and the Administrator determines that the board or group is
willing and able to perform the responsibilities of a
community response organization under section 117(e)(2), the
board or group--
``(A) shall be considered to be a community response
organization for the purposes of section 117 (e) (2), (3),
(4), (5), and (6), and (g) and sections 127 and 129; but
``(B) shall not be required to comply with, and shall not
be considered to be a community response organization for the
purposes of, section 117 (e) (1), (7), (8), (9), (10), or
(11) or (f).''.
SEC. 602. DEPARTMENT OF ENERGY ENVIRONMENTAL CLEANUP
REQUIREMENTS.
(a) Definitions.--In this section:
(1) Civil or criminal sanction.--The term ``civil or
criminal sanction'' means a fine, penalty, imprisonment, a
requirement to pay damages or costs, the imposition of
equitable relief against a person, and the application of any
other remedy authorized by law.
(2) Department of energy environmental cleanup
requirement.--The term ``Department of Energy environmental
cleanup requirement''--
(A) means a requirement imposed on the Secretary of
Energy--
(i) to carry out a response action under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601 et seq.);
(ii) to take corrective action under section 3004 (u) or
(v) or section 3008(h) of the Solid Waste Disposal Act (42
U.S.C. 6924 (u), (v));
(iii) to conduct closure activity under section 3004 or
3005 of the Solid Waste Disposal Act (42 U.S.C. 6924, 6925);
(iv) relating to storage of mixed waste under section
3004(j) of the Solid Waste Disposal Act (42 U.S.C. 6924(j));
(v) for treatment of mixed waste under section 3021 of the
Solid Waste Disposal Act (42 U.S.C. 6939c);
(vi) with respect to the storage of mixed waste in a
storage facility that does not meet other storage
requirements imposed under the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.), if--
(I) the facility commenced operation prior to October 6,
1992;
(II) the storage does not result in any release of mixed
waste to the environment, or any direct, immediate, and
significant danger to human health or the environment.
(vii) under comparable provisions of State and local laws;
or
(viii) under a permit or order issued by, or an agreement
with a Federal, State, or local agency relating to a
requirement described in clause (i), (ii), (iii), (iv), (v),
(vi), (vii), or (viii); but
(B) does not include--
(i) a reporting requirement imposed by section 103 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9603); or
(ii) except as provided in subparagraph (A)(iii), a
requirement with respect to the treatment, storage, disposal,
or transportation of hazardous waste generated by a response
action under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) or by a corrective action or closure under the Solid
Waste Disposal Act (42 U.S.C. 6901 et seq.).
(b) Lists.--
(1) Initial list.--Not later than 120 days after the date
of enactment of this Act, the Secretary of Energy, after
providing appropriate Federal, State, and local agencies
reasonable notice and an opportunity for comment, shall
submit to Congress a list identifying by State and facility
the specific Department of Energy environmental cleanup
requirements that cannot be carried out with the funds
appropriated specifically for the Department's environmental
management activities under the Energy and Water Development
Appropriations Act, 1996, or the Department of Defense
Appropriations Act, 1996.
(2) Annual lists.--
(A) Submission to the president.--For fiscal year 1997 and
each fiscal year thereafter, the Secretary of Energy, after
providing appropriate Federal, State, and local agencies
reasonable notice and an opportunity for comment, shall--
(i) provide to the President--
(I) information concerning the budget necessary to meet all
Department of Energy environmental management requirements,
including Department of Energy environmental cleanup
requirements; and
(II) a list of the Department of Energy environmental
cleanup requirements that cannot be met (including
information about the nature and cost of each requirement and
the locations of each affected facility) within the
[[Page S 14732]]
Department's budget request for environmental management activities for
that fiscal year;
(ii) advise the President of the factors taken into account
in formulating the list; and
(iii) a summary of comments on the list received by the
Secretary of Energy from Federal, State, and local agencies.
(B) Inclusion in budget request.--After considering
information provided by the Secretary of Energy, the
President shall submit to Congress with the President's
annual budget request under section 1105 of title 31, United
States Code--
(i) information concerning the budget necessary to meet all
Department of Energy environmental management requirements,
including Department of Energy environmental cleanup
requirements;
(ii) a list of the Department of Energy environmental
cleanup requirements that cannot be met (including
information about the nature and cost of each requirement and
the locations of each affected facility) within the
Department's budget request for environmental management
activities for that fiscal year; and
(iii) a summary of comments on the list received by the
Secretary of Energy from Federal, State, and local agencies.
(3) Comments on cost reduction.--During the comment period
on a list under paragraph (1) or (2), the Secretary of Energy
shall seek comments of appropriate Federal, State, and local
agencies concerning opportunities for cost reduction in
meeting cleanup requirements, risk reduction, community
concerns and other factors relevant to setting priorities for
cleanup activities.
(4) Revision of lists.--
(A) In general.--Beginning with fiscal year 1997, after
funds for the Department of Energy's environmental management
activities have been appropriated for a fiscal year, the
Secretary of Energy, after providing appropriate Federal,
State, and local agencies reasonable notice and an additional
opportunity for comment, shall revise the list of the
Department of Energy environmental cleanup requirements
submitted to Congress to reflect any differences between the
President's budget request and the funds appropriated
specifically to carry out such activities and shall submit
the revised list to Congress within 60 days.
(B) No further revision.--After a revised list is submitted
to Congress, it shall not be subject to further revision.
(c) Civil or Criminal Sanctions.--
(1) In general.--Except as provided in paragraph (2),
notwithstanding any other law, no action seeking to impose
civil or criminal sanctions under any law may be commenced at
any time against--
(A) the United States or any department, agency, or
instrumentality of the United States;
(B) any employee or officer of the United States or of any
department, agency, or instrumentality of the United States;
or
(C) any person who is a contractor, subcontractor, or agent
of the Department of Energy, or any employee, officer,
shareholder, partner, or director of such a person acting in
accordance with the person's authority,
with respect to a failure to comply with a Department of
Energy environmental cleanup requirement by reason of a lack
of funds appropriated specifically for the Department of
Energy environmental management activities during a fiscal
year for which such cleanup requirement was on a list under
subsection (c).
(2) Permitted actions.--This subsection does not prohibit
an action against the United States or any department,
agency, or instrumentality of the United States--
(A) with respect to a violation of a Department of Energy
environmental cleanup requirement contained in a compliance
agreement with a Federal, State, or local agency or order
that the Department of Energy voluntarily accepted in writing
after January 1, 1995, if the action seeks only civil
penalties stipulated in the agreement or order, or injunctive
relief enforcing the agreement or order;
(B) if injunctive relief is sought on the basis that such
relief is necessary to avoid a direct, immediate, and
significant danger to human health or the environment; or
(C) if monetary damages are sought to compensate a person
for an actual injury or loss to the extent that such an
action is allowed by other law.
(d) Judicial Review.--A decision made by the President or
the Secretary of Energy in preparing a list under subsection
(c) shall not be subject to judicial review.
SEC. 603. INNOVATIVE TECHNOLOGIES FOR REMEDIAL ACTION AT
FEDERAL FACILITIES.
(a) In General.--Section 311 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9660) is amended by adding at the end the
following:
``(h) Federal Facilities.--
``(1) Designation.--The President may designate a facility
that is owned or operated by any department, agency, or
instrumentality of the United States, and that is listed or
proposed for listing on the National Priorities List, to
facilitate the research, development, and application of
innovative technologies for remedial action at the facility.
``(2) Use of facilities.--
``(A) In general.--A facility designated under paragraph
(1) shall be made available to Federal departments and
agencies, State departments and agencies, and public and
private instrumentalities, to carry out activities described
in paragraph (1).
``(B) Coordination.--The Administrator--
``(i) shall coordinate the use of the facilities with the
departments, agencies, and instrumentalities of the United
States; and
``(ii) may approve or deny the use of a particular
innovative technology for remedial action at any such
facility.
``(3) Considerations.--
``(A) Evaluation of schedules and penalties.--In
considering whether to permit the application of a particular
innovative technology for remedial action at a facility
designated under paragraph (1), the Administrator shall
evaluate the schedules and penalties applicable to the
facility under any agreement or order entered into under
section 120.
``(B) Amendment of agreement or order.--If, after an
evaluation under subparagraph (A), the Administrator
determines that there is a need to amend any agreement or
order entered into pursuant to section 120, the Administrator
shall comply with all provisions of the agreement or order,
respectively, relating to the amendment of the agreement or
order.''.
(b) Report to Congress.--Section 311(e) of Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9660(e)) is amended--
(1) by striking ``At the time'' and inserting the
following:
``(1) In general.--At the time''; and
(2) by adding at the end the following:
``(2) Additional information.--A report under paragraph (1)
shall include information on the use of facilities described
in subsection (h)(1) for the research, development, and
application of innovative technologies for remedial activity,
as authorized under subsection (h).''.
SEC. 604. FEDERAL FACILITY LISTING.
Section 120(d) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9620(d))
is amended--
(1) by striking ``Not later'' and inserting the following:
``(1) Preliminary assessments.--Not later'';
(2) by striking ``Following such'' and inserting the
following:
``(2) Evaluation and placement on national priorities
list.--Following such'';
(3) by striking ``(1) evaluate'' and inserting the
following:
``(A) evaluate'';
(4) by striking ``(2) include'' and inserting the
following:
``(B) include'';
(5) by striking ``Such criteria'' and inserting the
following:
``(3) Application of criteria.--The criteria for
determining priorities'';
(6) by striking ``Evaluation'' and inserting the following:
``(4) Completion.--Evaluation'';
(7) by striking ``Upon'' and inserting the following:
``(5) Petitions by governors.--On''; and
(8) by adding at the end the following:
``(6) Uncontaminated properties.--On identification of
parcels of uncontaminated property under subsection (h)(4),
the Administrator may provide notice that the listing does
not include the identified uncontaminated parcels.''.
SEC. 605. FEDERAL FACILITY LISTING DEFERRAL.
Paragraph (3) of section 120(d) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9620(d)), as designated by section 604, is
amended by inserting after ``persons'' the following: ``, but
an appropriate factor as referred to in section 105(a)(8)(A)
may include the extent to which the Federal land holding
agency has arranged with the Administrator or with a State to
respond to the release or threatened release under other
legal authority''.
SEC. 606. TRANSFERS OF UNCONTAMINATED PROPERTY.
Section 120(h)(4)(A) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9620(h)(4)(A)) is amended in the first sentence by striking
``stored for one year or more,''.
TITLE VII--NATURAL RESOURCE DAMAGES
SEC. 701. RESTORATION OF NATURAL RESOURCES.
(a) Definitions.--Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9601), as amended by section 504(b), is
amended--
(1) by striking paragraph (16) and inserting the following:
``(16) Natural resource.--
``(A) In general.--The term `natural resource' means land,
fish, wildlife, biota, air, water, ground water, a drinking
water supply, and any similar resource that is committed for
use by the general public and is owned or managed by,
appertains to, is held in trust by, or is otherwise
controlled by the United States (including a resource of the
fishery conservation zone established by the Magnuson Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.)), by
a State or local government, by a foreign government, by an
Indian tribe, or, if such a resource is subject to a trust
restriction on alienation, by a member of an Indian tribe.
``(B) Commitment for use.--A resource shall be considered
to be committed for use
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by the general public only if, at the time of the act of disposal
giving rise to liability (as limited by section
107(f)(1)(B)), the resource is subject to a public use or to
a planned public use, for which there is an authorized and
documented legal, administrative, budgetary, or financial
commitment.''; and
(2) by adding at the end the following:
``(52) Baseline.--The term `baseline' means the condition
or conditions that would have existed at a natural resource
had a release of hazardous substances not occurred.
``(53) Compensatory restoration.--The term `compensatory
restoration' means the provision of ecological services lost
as a result of injury to or destruction or loss of a natural
resource from the initial release giving rise to liability
under section 107(a)(2)(C) until primary restoration has been
achieved with respect to those services.
``(54) Ecological service.--The term `ecological service'
means a physical or biological function performed by an
ecological resource, including the human uses of such a
function.
``(55) Primary restoration.--The term `primary restoration'
means rehabilitation, natural recovery, or replacement of an
injured, destroyed, or lost natural resource, or acquisition
of a substitute or alternative natural resource, to
reestablish the baseline ecological service that the natural
resource would have provided in the absence of a release
giving rise to liability under section 107(a)(2)(C).
``(56) Restoration.--The term `restoration' means primary
restoration and compensatory restoration.''.
(b) Liability for Natural Resource Damages.--
(1) Amendment.--Section 107(a) of the Comprehensive
Environmental Response Compensation, and Liability Act of
1980 (42 U.S.C. 9607(a)) is amended--
(A) by inserting ``In General.--'' after ``(a)'';
(B) by striking ``Notwithstanding'' and inserting the
following:
``(1) Persons liable.--Notwithstanding'';
(C) by redesignating paragraphs (1), (2), (3), and (4) (as
designated prior to the date of enactment of this Act) as
subparagraphs (A), (B), (C), and (D), respectively, and
adjusting the margins accordingly;
(D) by striking ``hazardous substance, shall be liable
for--'' and inserting the following: ``hazardous substance,
shall be liable for the costs and damages described in
paragraph (2).
``(2) Costs and damages.--A person described in paragraph
(1) shall be liable for--'';
(E) by striking subparagraph (C) of paragraph (2), as
designated by subparagraph (D), and inserting the following:
``(C) damages for injury to, destruction of, or loss of the
baseline ecological services of natural resources, including
the reasonable costs of assessing such injury, destruction,
or loss caused by a release; and'';
(F) by striking ``The amounts'' and inserting the
following:
``(3) Interest.--The amounts''; and
(G) in the first sentence of paragraph (3), as designated
by subparagraph (F), by striking ``subparagraphs (A) through
(D)'' and inserting ``paragraph (2)''.
(2) Conforming amendments.--Section 107 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607) is amended--
(A) in subsection (d)(3) by striking ``the provisions of
paragraph (1), (2), (3), or (4) of subsection (a) of this
section'' and inserting ``subsection (a)'';
(B) in subsection (f)(1) by striking ``subparagraph (C) of
subsection (a)'' each place it appears and inserting
``subsection (a)(2)(C)''.
(c) Natural Resource Damages.--Section 107(f) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607(f)) is amended--
(1) by inserting ``Natural Resource Damages.--'' after
``(f)'';
(2) by striking ``(1) Natural Resources Liability.--In the
case'' and inserting the following:
``(1) Liability.--
``(A) In general.--In the case'';
(3) in paragraph (1)(A), as designated by paragraph (2)--
(A) in the first sentence by inserting ``the baseline
ecological services of'' after ``loss of'';
(B) in the third and fourth sentences, by striking ``to
restore, replace, or acquire the equivalent'' each place it
appears and inserting ``for restoration'';
(C) by inserting after the fourth sentence the following:
``Sums recovered by an Indian tribe as trustee under this
subsection shall be available for use only for restoration of
such natural resources by the Indian tribe. A restoration
conducted by the United States, a State, or an Indian tribe
shall proceed only if it is technologically practicable,
cost-effective, and consistent with all known or anticipated
response actions at or near the facility. Any sums recovered
by the United States, a State, or an Indian tribe shall be
placed in an escrow account. Such sums may be released from
the escrow account only for the purpose of contributing to
restoration activities carried out in accordance with
specific activities or accounts set forth in a restoration
plan approved by the United States, a State, or an Indian
tribe. The restoration plan may be revised as necessary to
account for new information or extenuating circumstances on
approval of the trustee and relevant responsible parties or
on approval by a United States district court. The trustee
shall issue a public notice and hold a public hearing every 2
years after approval of the restoration plan and issue a
report describing how the sums have been expended in
accordance with the restoration plan. Any sums expended by
the United States, a State, or an Indian tribe that are not
expended in accordance with the restoration plan may be
recovered by the persons from whom the sums were
collected.''; and
(D) by striking ``The measure of damages in any action''
and all that follows through the end of the paragraph and
inserting the following:
``(B) Limitations on liability.--
``(i) Measure of damages.--The measure of damages in any
action under subsection (a)(2)(C) shall be limited to the
reasonable costs of restoration and of assessing damages.
``(ii) Nonuse values.--There shall be no recovery under
this Act for any impairment of non-use values.
``(iii) No double recovery.--A person that obtains a
recovery of damages, response costs, assessment costs, or any
other costs under this Act for injury to, destruction of, or
loss of a natural resource caused by a release shall not be
entitled to recovery under or any other Federal or State law
for injury to or destruction or loss of the natural resource
caused by the release.
``(iv) No retroactive liability.--
``(I) Compensatory restoration.--There shall be no recovery
from any person under of this section of the costs of
compensatory restoration for a natural resource injury,
destruction, or loss that occurred prior to December 11,
1980.
``(II) Primary restoration.--There shall be no recovery
from any person under this section for the costs of primary
restoration if the natural resource injury, destruction, or
loss for which primary restoration is sought and the release
of the hazardous substance from which the injury resulted
occurred entirely prior to December 11, 1980.
``(v) Burden of proof on the issue of the date of
occurrence of a release.--The trustee for an injured,
destroyed, or lost natural resource bears the burden of
demonstrating that any amount of costs of compensatory
restoration that the trustee seeks under this section is to
compensate for an injury, destruction, or loss (or portion of
an injury, destruction, or loss) that occurred on or after
December 11, 1980.''; and
(4) by adding at the end the following:
``(3) Selection of restoration method.--When selecting
appropriate restoration measures, including natural recovery,
a trustee shall select the most cost-effective method of
achieving restoration.''.
(d) Amount of Damages.--Section 107(c) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9607(c)) is amended--
(A) by striking ``paragraph (2) of this subsection,'' and
inserting ``paragraph (2), and subject to the limitation
stated in paragraph (4),''; and
(B) in subparagraph (D) by inserting ``, as limited by
paragraph (4)'' before the period at the end; and
(2) by adding at the end the following:
``(4) Limitation.--Except as provided in paragraph (2), the
aggregate liability of all responsible parties for costs of
compensatory restoration incurred as a result of a release or
releases of hazardous substances from an incineration vessel
or a facility or group of facilities (including those that
constitute part or all of 1 or more facilities listed on the
national priorities list under section 105(a)(8)(B)) shall
not exceed--
``(A) $25,000,000; or
``(B) if the costs of compensatory compensation exceed
$100,000,000, $50,000,000.''.
SEC. 702. ASSESSMENT OF DAMAGES.
(a) Damage Assessments.--Section 107(f)(2) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607(f)(2)) is amended by
striking subparagraph (C) and inserting the following:
``(C) Damage assessment.--
``(i) Regulation.--A natural resource damage assessment
conducted for the purposes of this Act or section 311 of the
Federal Water Pollution Control Act (33 U.S.C. 1321) made by
a Federal, State, or tribal trustee shall be performed in
accordance with--
``(I) the regulation issued under section 301(c); and
``(II) generally accepted scientific and technical
standards and methodologies to ensure the validity and
reliability of assessment results.
``(ii) Facility-specific conditions and restoration
requirements.--Injury determination, restoration planning,
and quantification of restoration costs shall be based on an
assessment of facility-specific conditions and restoration
requirements.
``(iii) Use by trustee.--A natural resource damage
assessment under clause (i) may be used by a trustee as the
basis for a natural resource damage claim only if the
assessment demonstrates that the hazardous substance release
in question caused the alleged natural resource injury.
``(iv) Cost recovery.--As part of a trustee's claim, a
trustee may recover only the reasonable damage assessment
costs that were incurred directly in relation to the site-
specific conditions and restoration measures that are the
subject of the natural resource damage action.
``(D) Judicial review.--
[[Page S 14734]]
``(i) Liability.--In reviewing a claim brought by a trustee
to recover natural resource damages costs of compensatory
restoration or primary restoration under this section, a
district court shall try de novo the issue whether a
defendant is liable and the issue of the amount of liability,
if any, to be imposed on the defendant.
``(ii) Trustee decisions.--In reviewing a claim brought to
challenge a decision of a trustee (such as a decision
concerning the extent of injury to or loss or destruction of
a natural resource or the selection of a restoration plan)
the district court, notwithstanding section 706(2)(E) of
title 5, United States Code, shall hold unlawful and set
aside actions, findings, and conclusions found to be
unsupported by substantial evidence.''.
(b) Regulations.--Section 301 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9651) is amended by striking subsection (c)
and inserting the following:
``(c) Regulations for Damage Assessments.--
``(1) In general.--The President, acting through Federal
officials designated by the National Contingency Plan under
section 107(f)(2), shall issue a regulation for the
assessment of restoration damages and assessment costs for
injury to, destruction of, or loss of natural resources
resulting from a release of oil or a hazardous substance for
the purposes of this Act and section 311(f) (4) and (5) of
the Federal Water Pollution Control Act (33 U.S.C. 1321(f)
(4), (5)).
``(2) Contents.--The regulation under paragraph (1) shall--
``(A) specify protocols for conducting assessments in
individual cases to determine the injury, destruction, or
loss of baseline ecological services of the environment;
``(B) identify the best available procedures to determine
damages for the reasonable cost of restoration and
assessment;
``(C) take into consideration the ability of a natural
resource to recover naturally and the availability of
replacement or alternative resources; and
``(D) specify an appropriate mechanism for the cooperative
designation of a single lead decisionmaking trustee at a site
where more than one Federal, State, or Indian tribe trustee
intends to conduct an assessment, which designation shall
occur not later than 180 days after the date of first notice
to the responsible parties that a natural resource damage
assessment will be made.
``(3) Biennial review.--The regulation under paragraph (1)
shall be reviewed and revised as appropriate every 2
years.''.
SEC. 703. CONSISTENCY BETWEEN RESPONSE ACTIONS AND RESOURCE
RESTORATION STANDARDS AND ALTERNATIVES.
(a) Restoration Standards and Alternatives.--Section 107(f)
of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9607(f)), as amended by
section 701(b)(4), is amended by adding at the end the
following:
``(4) Consistency with response actions.--A restoration
standard or restoration alternative selected by a trustee
shall not be duplicative of or inconsistent with actions
undertaken pursuant to section 104, 106, 121, or 129.''.
(b) Response Actions.--
(1) Abatement action.--Section 106(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9606(a)) is amended by adding at the end the
following: ``The President shall not take action under this
subsection except such action as is necessary to protect the
public health and the baseline ecological services of the
environment.''.
(2) Limitation on degree of cleanup.--Section 121(a) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9621(a)), as amended by
section 402(1), is amended by adding at the end the
following:
``(7) Limitation.--
``(A) In general.--The Administrator shall not select a
remedial action under this section that goes beyond the
measures necessary to protect human health and the baseline
ecological services of the environment.
``(B) Considerations.--In evaluating and selecting remedial
actions, the Administrator shall take into account the
potential for injury to, destruction of, or loss of a natural
resource resulting from such actions.
``(C) No liability.--No person shall be liable for injury
to, destruction of, or loss of a natural resource resulting
from a response action or remedial action selected by the
Administrator.''.
SEC. 704. MISCELLANEOUS AMENDMENTS.
(a) Contribution.--Section 113(f)(1) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9613(f)(1)) is amended in the third sentence
by inserting ``and natural resource damages'' after
``costs''.
(b) Statute of Limitations.--Section 113(g)(1) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9613(g)(1)) is amended--
(1) by striking the first sentence and inserting the
following:
``(A) In general.--Except as provided in paragraphs (3) and
(4), no action for damages under this Act may be commenced
unless the action is commenced within 3 years after the
earlier of--
``(i) the date on which the trustee agency knew or should
have known of the injury, destruction, or loss; or
``(ii) the date on which the vessel or facility is proposed
for listing on the National Priorities List.'';
(2) by striking ``With respect to'' and inserting the
following:
``(B) Listed facilities.--With respect to'';
(3) in subparagraph (B), as designated by paragraph (2), by
striking ``within'' and all that follows through the end of
the subparagraph and inserting ``by the earlier of--
``(i) the date referred to in subparagraph (A); or
``(ii) the date that is 3 years after the date of
completion of the remedial action (excluding operation and
maintenance activities).'';
(4) in the third sentence--
(A) by striking ``In no event'' and inserting the
following:
``(C) Limitation.--
``(i) In general.--In no event'';
(B) by striking ``commenced (i) prior'' and inserting
``commenced--
``(I) prior''; and
(C) by striking ``suit, or (ii) before'' and inserting
``suit; or
``(II) before''; and
(5) by striking ``The limitation in the preceding sentence
and inserting the following:
``(ii) Application.--The limitation stated in clause (i)''.
TITLE VIII--MISCELLANEOUS
SEC. 801. RESULT-ORIENTED CLEANUPS.
(a) Amendment.--Section 105(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9605(a)) is amended--
(1) by striking ``and'' at the end of paragraph (9);
(2) by striking the period at the end of paragraph (10) and
inserting ``; and''; and
(3) by inserting after paragraph (10) the following:
``(11) procedures for conducting response actions,
including facility evaluations, remedial investigations,
feasibility studies, remedial action plans, remedial designs,
and remedial actions, which procedures shall--
``(A) use a results-oriented approach to minimize the time
required to conduct response measures and reduce the
potential for exposure to the hazardous substances,
pollutants, and contaminants in an efficient, timely, and
cost-effective manner;
``(B) require, at a minimum, expedited facility evaluations
and risk assessments, timely negotiation of response action
goals, a single engineering study, streamlined oversight of
response actions, and consultation with interested parties
throughout the response action process;
``(C) be subject to the requirements of sections 117, 120,
121, and 129 in the same manner and to the same degree as
those sections apply to response actions; and
``(D) be required to be used for each remedial action
conducted under this Act unless the Administrator determines
that their use would not be cost-effective or result in the
selection of a response action that achieves the goals of
protecting human health and the environment stated in section
121(a)(1)(B).''.
(b) Amendment of National Hazardous Substance Response
Plan.--Not later than 180 days after the date of enactment of
this Act, the Administrator, after notice and opportunity for
public comment, shall amend the National Hazardous Substance
Response Plan under section 105(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (42 U.S.C. 9605(a)) to include the procedures required
by the amendment made by subsection (a).
SEC. 802. NATIONAL PRIORITIES LIST.
Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9605), as
amended by section 408(a)(1)(B), is amended by adding at the
end the following:
``(i) National Priorities List.--
``(1) Additional vessels and facilities.--
``(A) Limitation.--During each of the 3 12-month periods
following the date of enactment of this subsection, the
Administrator may add not more than 30 new vessels and
facilities to the National Priorities List.
``(B) Prioritization.--The Administrator shall prioritize
the vessels and facilities added under subparagraph (A) on a
national basis in accordance with the threat to human health
and the environment presented by each of the vessels and
facilities, respectively.
``(C) State concurrence.--A vessel or facility may be added
to the National Priorities List under subparagraph (A) only
with the concurrence of the State in which the vessel or
facility is located.
``(2) Sunset.--
``(A) No additional vessels or facilities.--The authority
of the Administrator to add vessels and facilities to the
National Priorities List shall expire on the date that is 3
years after the date of enactment of this subsection.
``(B) Limitation on action by the administrator.--At the
completion of response actions for all vessels and facilities
on the National Priorities List, the authority of the
Administrator under this Act shall be limited to--
``(i) providing a national emergency response capability;
``(ii) conducting research and development;
``(iii) providing technical assistance; and
``(iv) conducting oversight of grants and loans to the
States.''.
SEC. 803. OBLIGATIONS FROM THE FUND FOR RESPONSE ACTIONS.
Section 104(c)(1) of the Comprehensive Environmental
Response, Compensation, and
[[Page S 14735]]
Liability Act of 1980 (42 U.S.C. 9604(c)(1)) is amended--
(1) in subparagraph (C) by striking ``consistent with the
remedial action to be taken'' and inserting ``not
inconsistent with any remedial action that has been selected
or is anticipated at the time of any removal action at a
facility.'';
(2) by striking ``$2,000,000'' and inserting
``$4,000,000''; and
(3) by striking ``12 months'' and inserting ``2 years''.
SEC. 804. REMEDIATION WASTE.
(a) Definitions.--Section 1004 of the Solid Waste Disposal
Act (42 U.S.C. 6903) is amended by adding at the end the
following:
``(42) Debris.--The term `debris'--
``(A) means--
``(i) a solid manufactured object exceeding a 60 millimeter
particle size;
``(ii) plant or animal matter; and
``(iii) natural geologic material; but
``(B) does not include material that the Administrator may
exclude from the meaning of the term by regulation.
``(43) Identified characteristic waste.--The term
`identified characteristic waste' means a solid waste that
has been identified as having the characteristics of
hazardous waste under section 3001.
``(44) Listed waste.--The term `listed waste' means a solid
waste that has been listed as a hazardous waste under section
3001.
``(45) Media.--The term `media' means ground water, surface
water, soil, and sediment.
``(46) Remediation activity.--The term `remediation
activity' means the remediation, removal, containment, or
stabilization of--
``(A) solid waste that has been released to the
environment; or
``(B) media and debris that are contaminated as a result of
a release.
``(47) Remediation waste.--The term `remediation waste'
means--
``(A) solid and hazardous waste that is generated by a
remediation activity; and
``(B) debris and media that are generated by a remediation
activity and contain a listed waste or identified
characteristic waste.
``(48) State voluntary remediation program.--The term
`State voluntary remediation program' means a program
established by a State that permits a person to conduct
remediation activity at a facility under general guidance or
guidelines without being subject to a State order or consent
agreement specifically applicable to the person.''.
(b) Identification and Listing.--Section 3001 of the Solid
Waste Disposal Act (42 U.S.C. 6921) is amended by adding at
the end the following:
``(j) Remediation Waste.--
``(1) In general.--Except as provided in paragraph (2), a
person that manages remediation waste that is an identified
characteristic waste or listed waste or that contains an
identified characteristic waste or listed waste shall be
subject to the requirements of this subtitle (including
regulations issued under this subtitle, including the
regulation for corrective action management units published
in section 264.552, Code of Federal Regulations, and the
regulation for temporary units published in section 264.553,
Code of Federal Regulations, or any successor regulation).
``(2) Exceptions.--
``(A) Requirements under section 3004.--Media and debris
generated by a remediation activity that are identified
characteristic wastes or listed wastes or that contain an
identified characteristic waste or a listed waste shall not
be subject to the requirements of section 3004 (d), (e), (f),
(g), (j), (m), or (o).
``(B) Permit requirements.--No Federal, State, or local
permit shall be required for the treatment, storage, or
disposal of remediation waste that is conducted entirely at
the facility at which the remediation takes place.
``(3) Remediation waste subject to orders, consent
agreements, voluntary remediation programs, and other
mechanisms.--
``(A) Requirements not applicable.--Notwithstanding
paragraph (1), a person that manages remediation waste that--
``(i) is identified characteristic waste or listed waste or
that contains an identified characteristic waste or listed
waste; and
``(ii) is subject to a Federal or State order, Federal or
State consent agreement, a State voluntary remediation
program, or such other mechanism as the Administrator
considers appropriate,
shall not be subject to the requirements of this subtitle
(including any regulation under this subsection) unless the
requirements are specified in the Federal or State order,
Federal or State consent agreement, State voluntary cleanup
program, or other mechanism, as determined by the
Administrator.
``(B) Enforcement.--Unless other enforcement procedures are
specified in the order, consent agreement, or other
mechanism, a person described in subparagraph (A) (except a
person that manages remediation waste under a State voluntary
remediation program) shall be subject to enforcement of the
requirements of the order, consent agreement, or other
mechanism by use of enforcement procedures under section
3008.''.
(c) Regulation.--Not later than 180 days after the date of
enactment of this Act, the Administrator shall issue a
regulation implementing section 3001(j) of the Solid Waste
Disposal Act, as added by subsection (b).
TITLE IX--FUNDING
Subtitle A--General Provisions
SEC. 901. AUTHORIZATION OF APPROPRIATIONS FROM THE FUND.
Section 111(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9611(a))
is amended in the first sentence by striking ``not more than
$8,500,000,000 for the 5-year period beginning on the date of
enactment of the Superfund Amendments and Reauthorization Act
of 1986, and not more than $5,100,000,000 for the period
commencing October 1, 1991, and ending September 30, 1994''
and inserting ``a total of $8,500,000 for fiscal years 1996,
1997, 1998, 1999, and 2000''.
SEC. 902. ORPHAN SHARE FUNDING.
Section 111(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9611(a)),
as amended by section 301(c), is amended by inserting after
paragraph (8) the following:
``(9) Orphan share funding.--Payment of orphan shares under
section 132.''.
SEC. 903. DEPARTMENT OF HEALTH AND HUMAN SERVICES.
Section 111 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9611) is
amended by striking subsection (m) and inserting the
following:
``(m) Health Authorities.--There are authorized to be
appropriated from the Fund to the Secretary of Health and
Human Services to be used for the purposes of carrying out
the activities described in subsection (c)(4) and the
activities described in section 104(i), $50,000,000 for each
of fiscal years 1996, 1997, 1998, 1999, and 2000. Funds
appropriated under this subsection for a fiscal year, but not
obligated by the end of the fiscal year, shall be returned to
the Fund.''.
SEC. 904. LIMITATIONS ON RESEARCH, DEVELOPMENT, AND
DEMONSTRATION PROGRAMS.
Section 111 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9611) is
amended by striking subsection (n) and inserting the
following:
``(n) Limitations on Research, Development, and
Demonstration Programs.--
``(1) Alternative or innovative technologies research,
development, and demonstration programs.--
``(A) Limitation.--For each of fiscal years 1996, 1997,
1998, 1999, and 2000, 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) other than basic research.
``(B) Continuing availability.--Such amounts shall remain
available until expended.
``(2) Hazardous substance research, demonstration, and
training.--
``(A) Limitation.--For each of fiscal years 1996, 1997,
1998, 1999, and 2000 not more than $20,000,000 of the amounts
available in the Fund may be used for the purposes of section
311(a).
``(B) Further limitation.--No more than 10 percent of such
amounts shall be used for training under section 311(a) for
any fiscal year.
``(3) University hazardous substance research centers.--For
each of fiscal years 1996, 1997, 1998, 1999, and 2000, not
more than $5,000,000 of the amounts available in the Fund may
be used for the purposes of section 311(d).''.
SEC. 905. AUTHORIZATION OF APPROPRIATIONS FROM GENERAL
REVENUES.
Section 111(p) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9611(p))
is amended by striking paragraph (1) and inserting the
following:
``(1) Authorization of appropriations.--
``(A) In general.--There are authorized to be appropriated,
out of any money in the Treasury not otherwise appropriated,
to the Hazardous Substance Superfund--
``(i) for fiscal year 1996, $250,000,000;
``(ii) for fiscal year 1997, $250,000,000;
``(iii) for fiscal year 1998, $250,000,000;
``(iv) for fiscal year 1999, $250,000,000; and
``(v) for fiscal year 2000, $250,000,000.
``(B) Additional amounts.--There is authorized to be
appropriated to the Hazardous Substance Superfund for each
such fiscal year an amount, in addition to the amount
authorized by subparagraph (A), equal to so much of the
aggregate amount authorized to be appropriated under this
subsection and section 9507(b) of the Internal Revenue Code
of 1986 as has not been appropriated before the beginning of
the fiscal year.''.
SEC. 906. ADDITIONAL LIMITATIONS.
Section 111 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9611) is
amended by adding at the end the following:
``(q) Qualifying State Voluntary Response Program.--For
each of fiscal years 1996, 1997, 1998, 1999, and 2000, not
more than $25,000,000 of the amounts available in the Fund
may be used for the purposes of subsection (a)(7) (relating
to qualifying State voluntary response programs).
``(r) Brownfield Cleanup Assistance.--For each of fiscal
years 1996 through 2000, not more than $15,000,000 of the
amounts available in the Fund may be used to carry out
section 134(b) (relating to Citizen Information and Access
Offices).
``(s) Community Response Organization.--For the period
commencing October 1, 1995,
[[Page S 14736]]
and ending September 30, 2000, not more than $15,000,000 of the amounts
available in the Fund may be used to make grants under
section 117(f) (relating to Community Response
Organizations).
``(t) Recoveries.--Effective beginning October 1, 1995, any
recoveries collected pursuant to this Act shall be credited
as offsetting collections to the Superfund appropriations
account.''.
SEC. 907. REIMBURSEMENT OF POTENTIALLY RESPONSIBLE PARTIES.
Section 111(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9611(a)),
as amended by section 902, is amended by inserting after
paragraph (9) the following:
``(10) Reimbursement of potentially responsible parties.--
If--
``(A) a potentially responsible party and the Administrator
enter into a settlement under this Act under which the
Administrator is reimbursed for the response costs of the
Administrator; and
``(B) the Administrator determines, through a Federal audit
of response costs, that the costs for which the Administrator
is reimbursed--
``(i) are unallowable due to contractor fraud;
``(ii) are unallowable under the Federal Acquisition
Regulation; or
``(iii) should be adjusted due to routine contract and
Environmental Protection Agency response cost audit
procedures,
reimbursement of a potentially responsible party for those
costs.''.
____
title-by-title summary
TITLE I: COMMUNITY PARTICIPATION
Goal--To empower the citizens who are most adversely
impacted by the cleanup of hazardous waste sites with a
greater role in the decision making and remedy selection
processes to better protect human health and the environment,
foster rapid economic redevelopment, and promote expedited
restoration of natural resources.
Establishes Community Response Organizations (CROs)
comprised of 15-20 local citizens to increase community
participation in site cleanups. CROs will: Solicit views and
concerns of the affected community; serve as a representative
of the local community on issues relating to facility cleanup
and land use designations; and serve as an information
conduit from the community to the EPA, state, PRPs.
Creates Technical Assistance Grants (TAGs) that are
renewable up to $100,000 per facility, increasing the amount
currently available by $50,000 per facility. TAG grants would
be used by the community to interpret information regarding:
The nature of the hazardous substances located at the
facility; the facility evaluation; proposed remedial action
plans and remedial designs; response actions; and operation
and maintenance activities at the facility.
Improves communication with the public through enhanced
meeting notification and by providing the public with
information regarding site cleanup activities and any
incremental risks.
TITLE II: STATE ROLE
Goal--To move decisions regarding site cleanups closer to
the affected citizenry.
Empowers states to veto listing of new NPL sites and to de-
list existing NPL sites.
Provides maximum flexibility to states to accept all or
portions of Federal CERCLA authorities. States may request
delegation of authority to perform one or more of the
following activities at non-Federal NPL sites: Site
investigations and risk analysis; alternatives development
and remedy selection (including feasibility studies and
issuance of records of decision); remedial design; remedial
action and operation and maintenance (including removal
actions); liability allocation (including identification of
PRPs and issuance of settlement agreements); and enforcement
(including compliance orders, cost recovery, and imposition
of civil penalties).
Designates the state as the sole regulator and allows the
state to use its own remedy selection process at those sites
where the state accepts all EPA authority.
Requires the Fund to continue to pay its share of cleanup
costs at delegated sites, as long as the selected remedy is
protective of human health and the environment and is no more
costly than the one that would have been selected under the
Federal program.
Authorizes use of the Fund to make capacity building grants
to delegated states.
TITLE III: VOLUNTARY CLEANUP
Goal--To provide greater flexibility to communities in
protecting human health and the environment and provide
incentives for the voluntary cleanup of industrial sites and
expedited reutilization and economic redevelopment of urban
areas.
Authorizes grants of up to $25 million in yearly funding
for states to manage voluntary cleanup programs at non-NPL
sites.
Authorizes interest free loans to local governments of up
to $200,000 per site to promote ``brownfields''
redevelopment.
Protects from liability purchasers of contaminated property
if they did not contribute to the contamination and conducted
appropriate inquiries prior to the purchase.
Limits the liability of lenders or lessors that: Acquire
property through foreclosure; hold a security interest in the
property; hold property as a lessor pursuant to an extension
of credit; or exercise financial control pursuant to the
terms of an extension of credit.
Excludes from liability landholders who's property was
contaminated by a contiguous NPL site, if they did not
contribute to the contamination and are not designated as an
owner or operator.
TITLE IV: Selection of Remedial Actions
Goal--To base cleanup decisions on a careful analysis of
the actual or plausible risks to human health and the
environment.
Requires selection of the remedy that protects human health
and the environment in the most cost-effective manner.
Requires remedial actions to be selected according to site
specific conditions and risks based on the reasonably
anticipated future use of the site. Remedial actions would be
selected according to: actual or plausible exposure pathways
based on actual or planned future use of the land and water
resources (industrial, commercial, residential, etc.); site-
specific data, in preference to default assumptions; and
where site-specific data are unavailable, an acceptable range
of realistic and plausible default assumptions regarding
actual or likely human exposures and site-specific
conditions, instead of worst case default assumptions.
Requires consideration of the following balancing factors
in selecting a remedy: effectiveness in protecting human
health; long-term reliability; short-term risks; acceptance
by the local community; and technical practicability.
Cuts by half the number of steps required to implement
cleanup remedies by establishing the following accelerated
remedy selection procss: Facility Evaluation, Remedial Action
Planning, and Remedial Action.
Eliminates the preferences for permanence, allowing
consideration of all cleanup options at a site that are
protective of human health and the environment, including,
containment, treatment, institutional controls, natural
attenuation, or a combination of these alternatives.
Eliminates the requirement that remedial actions meet
applicable, relevant and appropriate requirements
(``ARARs'').
Requires assessment of the actual or planned future use of
the contaminated land and water resources based on a mix of
several factors including: (1) current zoning requirements
and projected future land uses; (2) site analysis and
surrounding land use growth patterns; (3) previous use of the
landholdings; and (4) input from the CRO, elected municipal
and county officials, local planning and zoning authorities,
facility owners and potentially responsible parties.
Establishes a higher level of protection for groundwater
that is currently uncontaminated.
Allows certain past records of decision to be modified, if
applying the new remedy selection process can demonstrate
life-cycle savings of at least 10% over the existing remedy.
Enhances emergency response capabilities by increasing the
duration of emergency response actions to 24 months, and
increasing the authorized spending cap to $4 million per
site.
Allows de-listing and reuse of the uncontaminated portions
of NPL sites.
Provides expedited de-listing of NPL sites where
construction of the remedy is complete and operation and
maintenance activities are continued.
TITLE V: Liability Allocations
Goal--Accelerate cleanup by providing broad based fairness
in allocating liability.
Establishes a mandatory, non-binding allocation process for
multi-party sites, whereby PRPs would be assessed only for
the costs of cleanup associated with their actions. This
allocation process would be mandatory at all sites where
response actions occurred after June 15, 1995, and would
divide unidentifiable shares equally among the parties to the
allocation. Shares that are attributable to bankrupt or
insolvent parties would be borne by an ``orphan share'' paid
out of the Trust Fund.
Makes available to those PRPs that accept the allocator's
finding a 50% tax credit for the PRP's pre-1980 cleanup
costs, if the PRP stays on-site to conduct the cleanup. This
approach would: provide an incentive for PRPs to accelerate
cleanup; significantly decrease litigation by creating
incentives for PRPs to settle their liability; provide
significant, broad-based relief of pre-1980 liability for
most PRPs; avoid creating a ``public works'' program in
Superfund; and ensure greater efficiency by keeping PRPs on-
site.
Allows PRPs who conducted response actions before June 15,
1995, to request allocation of shares, but would not allow
them to qualify for tax credits or orphan share funding.
Limits liability for religious, charitable, and other
``501(c)(3)'' organizations.
Assigns the cost of ``orphan shares,'' (which include the
shares attributed to bankrupt or dissolved parties) to the
Fund. Any PRP unwilling to pay its allocated share would be
held liable for any unrecovered costs at the site, including
unidentifiable shares. Settling parties would receive
complete contribution protection.
Provides for an early dollar settlement for those ``de-
minimus'' parties whose liability is 1% or less total site
liability.
Releases from all liability those ``de-micromis'' parties
who contributed not more than 110 gallons of liquid material
containing hazardous waste or not more than 200 pounds of
solid material containing hazardous waste to a site.
Provides increased protection from liability for response
action contractors by excluding them from being labeled
``owners or
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operators'' and establishing a negligence standard for their activities
at NPL sites.
TITLE VI: Federal Facilities
Goal--Enhance state participation in cleaning up and
reutilizing Federal facilities while ensuring the Federal
taxpayers get the maximum return for cleanup dollars spent.
Allows delegation of Federal facilities to qualified
states, if that state takes the entire site and utilizes the
Federal remedy selection process and standards.
Ensures that states: (1) apply cleanup standards that are
equivalent to non-Federal cleanup sites; (2) allow
uncontaminated or cleaned up parcels of property to be reused
as rapidly as possible; and (3) apply a definition of
uncontaminated property that includes property where
hazardous materials were once stored, but not released to the
environment.
Facilitates use of Federal facilities to promote
development and demonstration of innovative cleanup
technologies.
TITLE VII: Natural Resource Damages
Goal--Provide for the rapid restoration and replacement of
significant natural resources that have been damaged by the
release of hazardous materials.
Favors actual restoration of resources over assessing
arbitrary, punitive damages.
Eliminates non-use damages. Eliminates all lost use damages
for pre-1980 activities. Limits recovery to the restoration
of baseline ecological services.
Allows for de novo court review of a trustee's assessment
of whether a party is liable and the extent of any such
liability.
Requires trustees to give equal consideration to natural
attenuation and recovery as a viable restoration method.
Requires selection of the most cost effective method of
restoring a resource to the condition that would have existed
if not for the release of hazardous material.
Requires that the NRD provisions to receive ``double
recovery'' for damages if compensation has already been
provided pursuant to CERCLA or any other federal or state
law.
TITLE VIII: MISCELLANEOUS
Requires the Administrator to establish a ``results
oriented'' engineering approach to accelerate response
actions, including site evaluations, response goals, and
oversight.
Targets limited funds toward those sites currently on the
NPL by limiting new NPL listings to 30 sites per year for the
next three years and capping the list thereafter.
TITLE IX: Funding
Introduces a new accelerated cleanup tax credit of 50% for
PRPs that conduct cleanups.
Authorizes continuation of the Superfund program at $1.75
billion for fiscal years 1996-2000. $1.5 billion from the
Trust Fund; and $250 million from general revenue.
Reauthorizes current Superfund taxes: (Corporate
Environmental Income Tax, Petroleum Feedstock Tax, and
Chemical Feedstock Tax). Assumes continuation of current
taxes will generate sufficient revenue to offset accelerated
cleanup tax credits.
Mr. CHAFEE. Mr. President, Superfund is broken, and today the
Environment and Public Works Committee is putting forward a plan that
will fix it. Senator Bob Smith and his staff on the Superfund
subcommittee have produced a remarkable reform package, one deserving
of widespread support. I want to make it clear to everyone that
Superfund reform will be a priority for the Environment and Public
Works Committee for the rest of this year, and we will move to mark up
this bill and bring it to the floor as quickly as possible.
Superfund's troubled history and problems are news to no one, but
fixing Superfund's plainly evident problems--too much litigation, not
enough cleanup, inefficient use of scarce resources, blighted cities--
has eluded us now for more than 5 years, as one interest group after
another sought their vision of a ``perfect'' reform. No plan is
perfect, but his bill that Senator Smith and his staff prepared, with
the help of my staff, is a tremendous improvement over the status quo.
It is all the more remarkable for what it achieves in an era of tightly
constrained budgets.
This is real reform for Superfund that we can afford. This bill will:
Streamline the cleanup process by eliminating overlapping studies of
contaminated sites.
Require EPA to consider the future use of resources when it decides
how clean a site must be. Why clean up a site that will be a parking
lot to the same level as a day care center?
Let the States take as much of the Superfund Program as they want or
can handle.
Address the Brownfields problem by providing grants and loans to
States for voluntary cleanup programs, and assessment of contamination
levels at these sites. We also protect potential investors, innocent
landowners and lenders so that entrepreneurs will step forward and be
able to secure financing.
Eliminate the unfairness of Joint & Several liability by having the
fund, and not other parties, pay the share of those parties who cannot
be found or are bankrupt.
Provide significant relief to small waste contributors, usually small
business, with an expanded de micromis exemption, and expedited, fair
de minimis settlements.
Make restoration the goal of natural resource damages recovery, not
speculative punitive damages.
Relieve as much of the pain as we can afford on retroactive
liability, through the use of a tax credit for costs associated with
liability for things people did, legally, before Superfund was enacted
in 1980. On this point, I know Senator Smith wanted to do more, but the
facts of the budget frustrated his attempts. I want to salute him. He
took the best run at it he could, and then came forward, at some
personal political risk, with this fiscally credible plan.
Some will charge that the use of tax credits to relieve some of the
unfairness of retroactive liability is corporate welfare. Any such
charge about this tax credit proposal is merit-less, as the tax credits
are tightly tied to the existing Superfund taxes. In this proposal, the
tax credit is fully funded by the Superfund taxes that these
corporations pay. It does not come out of general tax revenues. I would
point out that, for the past several years, Superfund tax revenues have
far outrun Superfund's annual appropriation, resulting in a Superfund
trust fund balance of over $3 billion. I would also add that there is
something fundamentally unfair about holding people liable for acts
that were legal when they occurred. This credit helps to relieve some
of that unfairness.
I want to issue an invitation, and a warning, to all those out there
who will say, ``This does not go far enough,'' or ``This is too much.''
First, the invitation. This bill is a work in progress. There will be a
hearing on it before a markup, so make your views and suggestions
known--but move with alacrity, because we will take this up in the
committee as soon as we possibly can. Senator Smith's staff and my
staff are ready to work with you on this.
Second, the warning. If we fail, everyone loses. There is no longer a
status quo for Superfund--just look at the cut the program took $1.33
billion down to $1 billion in both the Senate and House versions of the
EPA appropriations bill. Unless we pass a new Superfund law, we are
looking at a $1 billion program, with even less in 1997 and beyond,
probably with the existing taxes reauthorized. This will be the lose/
lose scenario:
PRP's, and their insurers, lose. If you thought Enforcement First was
bad, wait until Enforcement Only. The existing litigation machine rolls
on. EPA, without many resources, runs the program by issuing section
106 orders, or suing a handful of parties for cost recovery.
EPA and all the agencies getting money from Superfund lose as the
program slowly contacts, losing the expertise we want to keep on
technical issues, until all that is left is a handful of lawyers to
write those section 106 orders.
Protection of human health and the environment loses, because the
pace of Federally funded cleanup slows down in the face of declining
budgets until the Federal Superfund becomes Enforcement Only.
People paying Superfund taxes lose. Their taxes will probably get
extended, but only two-thirds of those taxes will go to Superfund
cleanup this year, and less in the future. And corporations paying
Superfund taxes can still get sued by EPA or other PRP's. They will pay
twice.
So I end with a call for common sense and realistic expectations.
When you make suggestions to improve this bill, please furnish us with
an estimate of how much it will cost, where the money will come from,
and how we can spend the money given the budget caps and firewalls.
I want to assure all the members of the committee, and the Senate,
that we will work to accommodate their concerns as we move forward on
this bill. This is not a perfect bill, but neither Senator Smith nor I
plan to repeat last year's so-called delicate balance
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Superfund bill, a deal made off the Hill that was so fragile that could
not be changed without the deal falling apart. Some members of the
committee have expressed concerns with some provisions in the bill as
introduced. Senator Kempthorne has expressed concern about the impact
of Superfund on dry cleaners. Senator Warner is concerned about the
potential impact on recycling operations, and in how the States and
Federal Government will control the costs of federal facility cleanups.
Senator Inhofe would like to see more protection for acts that occurred
in the distant past. I will continue to work with Senator Smith on
issues of concern to me, including groundwater and natural resource
damage provisions. I know that other members of the Committee have
other concerns as well. We will work to resolve these concerns as we
move forward. This bill is no fragil compromise, and we will work
within the budget constraints that we must all live with to get the
best bill we can.
Again, I want to commend Senator Smith and his staff for putting this
complex bill together and bringing it quickly forward to this point. We
have been working together on this since the start of the Congress, and
today is an important milestone. It will not be easy to meet the goal
we share--passage this year--but it will not be for lack of a continued
team effort on this committee.
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