[Congressional Record Volume 141, Number 154 (Friday, September 29, 1995)]
[Senate]
[Pages S14711-S14751]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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
[[Page S 14737]]
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
[[Page S 14738]]
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.
______
By Mr. SMITH:
S. 1286. A bill to amend the Solid Waste Disposal Act regarding
management of remediation waste, certain recyclable industrial
materials, and certain products, coproducts, and intermediate products,
and for other purposes; to the Committee on Environment and Public
Works.
the resource conservation and recovery act
Mr. SMITH. Mr. President, in addition to the Superfund Accelerated
Cleanup bill, I would also like to introduce today a targeted Resource
Conservation and Recovery Act--or ``rick-ra''--reform bill. I offer
this bill in the hopes that it will supplement and enhance the reforms
we are proposing to Superfund.
It is my feeling that these changes are consistent with the goals of
the RCRA ``Rifle Shot'' proposal being discussed within the
Administration.
My targeted bill is intended to: Provide greater consistency among
environmental statutes; make RCRA more user friendly; eliminate costly
and ineffective bureaucratic burdens; and maintain, or improve, current
protections to human health and the environment.
I feel the provisions of this bill will greatly enhance recycling and
reuse of hazardous materials and will begin to provide cohesiveness
between the two largest hazardous waste laws--Superfund and RCRA.
We are trying to accomplish three things with this act:
First, remove some recyclable hazardous materials from current RCRA
provisions, and instead, subject them to a tailored set of standards
which will facilitate the reuse of these materials in an
environmentally friendly way.
Under current law, the only option is to discard such materials.
Second, specify a reasonable point at which a material is considered
hazardous.
Currently, EPA is required to apply very strict controls once a
hazardous material is created, even if it is created very early in a
manufacturing process.
This greatly increases the costs of managing wastes, regardless of
whether they ever come in contact with the environment.
Third, allow EPA to determine when a hazardous material is no longer
considered hazardous.
Under the current law, EPA does not have the authority to tailor its
standards to specific risks posed by some hazardous substances.
This greatly increases the cost of treating materials that pose
little or no risk.
Mr. President, these changes will not only save money on waste
management and cleanup, it will also greatly increase the effectiveness
of our waste management laws in protecting human health and the
environment. I urge its passage at the earliest possible date.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1286
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. 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).
[[Page S 14739]]
SEC. 2. EXCLUSION OF CERTAIN RECYCLABLE INDUSTRIAL MATERIALS
AND CERTAIN PRODUCTS, CO-PRODUCTS, AND
INTERMEDIATE PRODUCTS.
(a) Definitions.--Section 1004 of the Solid Waste Disposal
Act (42 U.S.C. 6903), as amended by section 1(a), is amended
by adding at the end the following:
``(49) Co-product.--The term `co-product' means a
combination of 2 or more materials intentionally produced
from a manufacturing or recycling operation for commercial
use.
``(50) Intermediate material.--The term `intermediate
material' means a material that results from a manufacturing
process the design of which contemplates further processing
of the material by the manufacturer or by a toll processor to
produce a product or an intermediate product.
``(51) Manufacturing.--The term `manufacturing' means the
use of a virgin material or other feedstock to produce a
product, co-product, or intermediate product (including all
associated ancillary operations) in which--
``(A) the process uses the appropriate equipment to produce
the intended product, co-product, or intermediate product;
``(B) the virgin material or other feedstock used in the
process meets commercial specifications;
``(C) the virgin material or other feedstock is handled in
a manner that is designed to minimize loss of the virgin
material or feedstock;
``(D) a contract or record is established by the
manufacturer to record or document the receipt and use of the
virgin material or other feedstock and the use or sale of the
product, co-product, or intermediate product that is
produced; and
``(E) the process produces a product, co-product, or
intermediate product that meets commercial specifications.
``(52) Product.--The term `product' means a material that
is produced from a manufacturing or recycling operation for
commercial use.
``(53) Recyclable industrial material.--The term
`recyclable industrial material' means a material that--
``(A) would constitute an identified characteristic waste
or listed waste except for the application of section
3024(a); and
``(B) is intended by a manufacturer, commercial enterprise,
or recycler for recycling by use, reuse, or reclamation.
``(54) Toll processor.--The term `toll processor' means a
person that performs any of a variety of manufacturing
processes on material owned by a manufacturer.''.
(b) Exclusion from Regulation of Certain Recyclable
Industrial Materials and Certain Products, Co-Products, and
Intermediate Products.--Subtitle C of the Solid Waste
Disposal Act (42 U.S.C 6921 et seq.) is amended by adding at
the end the following:
``SEC. 3024. EXCLUSION FROM REGULATION OF CERTAIN RECYCLABLE
INDUSTRIAL MATERIALS AND CERTAIN PRODUCTS, CO-
PRODUCTS, AND INTERMEDIATE PRODUCTS.
``(a) Certain Recyclable Industrial Materials.--
``(1) In general.--Except as provided in paragraph (2), a
person that manages recyclable industrial material shall not
be subject to the requirements of this subtitle (including
regulations).
``(2) Exceptions.--The following recyclable industrial
materials shall be subject to the requirements of this
subtitle (including regulations) unless the Administrator
determines that regulation under this subtitle is
unnecessary:
``(A) A recyclable industrial material that--
``(i) is burned for energy recovery or used to produce
fuel; or
``(ii) is otherwise contained in fuel,
if burning for energy recovery or use to produce fuel is not
a normal use of the recyclable industrial material.
``(B) A recyclable industrial material that--
``(i) is applied to or placed on land in a manner that
constitutes disposal, if such use is not a normal use of the
recyclable industrial material; or
``(ii) is used to produce a product that is applied to or
placed on land or is contained in a product that is applied
to or placed on land, if such use of the recyclable
industrial material is not a normal use of the recyclable
industrial material.
``(C) A recyclable industrial material that is identified
by the Administrator by regulation as being inherently
wastelike.
``(b) Certain Products, Co-Products, and Intermediate
Products.--A product, co-product, or intermediate product
shall not be considered to be a solid waste for the purposes
of this Act unless the product, co-product, or intermediate
product--
``(1) is burned for energy recovery or used to produce fuel
or is contained in fuel, if such use is not a normal use of
the product, co-product, or intermediate product;
``(2) is used in a manner constituting disposal or used to
produce a product or is contained in a product that is used
in a manner constituting disposal, if such use is not a
normal use of the product, co-product, or intermediate
product; or
``(3) is identified by the Administrator by regulation as
being inherently wastelike.''.
SEC. 3. REGULATION OF CERTAIN RECYCLABLE INDUSTRIAL
MATERIALS.
The Solid Waste Disposal Act (42 U.S.C. 9601 et seq.) is
amended by adding at the end the following:
``Subtitle K--Recyclable Industrial Material
``SEC. 12001. RECYCLABLE INDUSTRIAL MATERIAL.
``(a) Requirements.--A person that manages recyclable
industrial material (other than recyclable industrial
material described in section 3024(a)(2)) shall be subject to
the following requirements:
``(1) In general.--Recyclable industrial material shall not
be stored on land but shall be managed in a building, tank,
or other containment structure that meets the following
requirements.
``(A) In a building.--Recyclable industrial material that
is managed in a building shall be completely enclosed with a
floor, walls, and a roof and shall otherwise be reasonably
constructed to prevent exposure to the elements and
incorporate appropriate controls and practices to ensure
containment of the recyclable industrial material.
``(B) In a tank or other containment structure.--A
recyclable industrial material that is managed in a tank or
other containment structure shall meet the technical
requirements of section 279.54 of title 40, Code of Federal
Regulations, or any successor regulation, not including the
requirements stated in--
``(i) the matter preceding paragraph (a); and
``(ii) paragraphs (a), (f)(2), and (h)(1)(i),
as those paragraphs are designated on the date of enactment
of this Act, notwithstanding that the person managing the
recyclable industrial material may not be a used oil
processor or re-refiner under that section.
``(2) Recycling.--A recyclable industrial material shall be
recycled within 24 months after the date on which the
recyclable industrial material is generated unless the
Administrator by regulation establishes a shorter or longer
period.
``(3) Additional requirements.--
``(A) In general.--A recyclable industrial material shall
be subject to such requirements, in addition to those
described in this section, as the Administrator determines to
be necessary.
``(B) Considerations.--In determining whether any
additional requirement is necessary, the Administrator shall
ensure that the requirement does not discourage the recycling
of the recyclable industrial material, consistent with the
protection of human health and the environment.
``(b) Permit.--A person that manages a recyclable
industrial material in accordance with the requirements of
subsection (a) shall not be required to obtain a permit to
conduct recycling activity.
``(c) Documentation.--
``(1) In general.--A person that manages a recyclable
industrial material shall maintain documentation at the
recycling facility to demonstrate that the recyclable
industrial material is recycled in accordance with the
requirements of this subtitle.
``(2) Guidance.--Not later than 9 months after the date of
enactment of this subtitle, the Administrator shall, after
opportunity for public comment, publish guidance identifying
the criteria to be considered by a person that manages a
recyclable industrial material in making the demonstration
required by paragraph (1).
``(d) Inspection and Enforcement.--The Administrator may
use the authority under sections 3007 and 3008 to conduct
inspections and enforce this Act with respect to a person
that manages a recyclable industrial material.
``(e) References.--The Administrator shall amend
regulations, correspondence, orders, settlement agreements,
and other documents as appropriate to reflect the management
of recyclable industrial material under this subtitle.''.
SEC. 4. POINT OF DETERMINATION.
(a) Definitions.--Section 1004 of the Solid Waste Disposal
Act (42 U.S.C. 6903), as amended by section 4(a), is amended
by adding at the end the following:
``(55) Point of determination.--The term `point of
determination' means the point at which a decision is made
whether a solid waste is an identified characteristic waste
or listed waste.''.
(b) Identification and Listing.--Section 3001(b)(1) of the
Solid Waste Disposal Act (42 U.S.C. 6921(b)(1)) is amended by
inserting after the second sentence the following: ``In
addition, the Administrator shall promulgate regulations
specifying the point at which a solid waste is an identified
characteristic waste or listed waste, which point of
determination shall not be before the point at which the
waste exits a closed system and is exposed to the environment
or is discharged to a waste management unit (as defined by
the Administrator), whichever point occurs first.''.
SEC. 5. DISCONTINUATION OF REGULATION OF WASTE UNDER SUBTITLE
C OF THE SOLID WASTE DISPOSAL ACT.
(a) Identification and Listing.--
(1) Amendments.--Section 3001(f) of the Solid Waste
Disposal Act (42 U.S.C. 6921(f)) is amended--
(A) by striking ``(1) When'' and inserting the following:
``(1) Delisting of particular wastes.--
``(A) Consideration of factors.--When'';
(B) by striking ``(2)(A) To the maximum extent practicable
the Administrator shall publish in the Federal Register a
proposal to grant or deny a petition referred to in paragraph
(1)'' and inserting the following:
``(B) Decision.--To the maximum extent practicable, the
Administrator shall publish
[[Page S 14740]]
in the Federal Register a proposal to grant or deny a petition under
subparagraph (A)'';
(C) by striking subparagraph (B) of paragraph (2) as
designated on the day prior to the date of enactment of this
Act; and
(D) by adding at the end the following:
``(2) Generic delisting.--
``(A) Regulation.--The Administrator shall issue a
regulation that defines constituent levels below which a
solid waste shall not be considered to be a hazardous waste
subject to the requirements of this subtitle (including
regulations).
``(B) Constituents of concern.--The regulation under
subparagraph (A) shall provide that only the constituents
that are reasonably expected to be present in solid waste
shall be considered in determining whether the solid waste is
not considered to be a hazardous waste.''.
(2) Interim constituent levels.--Until the date on which
the Administrator issues the regulation under section
3001(f)(2) of the Solid Waste Disposal Act, as added by
paragraph (1)(D), the land disposal restriction treatment
levels under section 3004(m) of that Act, as in effect on
August 31, 1993, shall constitute the constituent levels
below which a solid waste shall not be considered to be a
hazardous waste.
(b) Standards Applicable to Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal
Facilities.--Section 3004 of the Solid Waste Disposal Act (42
U.S.C. 6924) is amended by adding at the end the following:
``(z) Special Standards for Hazardous Waste.--
``(1) Modification of requirements.--Notwithstanding this
section and sections 3005(j) and 7004(b), the Administrator
may by regulation alter to any extent the requirements of
this section or section 3005(j) or 7004(b) for a solid waste
that is an identified characteristic waste or listed waste
and that contains hazardous constituents in an amount that is
not greater than 10 times the amount below which a solid
waste shall not be considered to be a hazardous waste.
``(2) Regulation.--The Administrator--
``(A) shall issue a regulation under paragraph (1) not
later than 18 months after the date of enactment of this
subsection; and
``(B) in formulating the regulation--
``(i) shall take into account the lower level of risk posed
by the wastes described in paragraph (1); and
``(ii) shall ensure that any modified requirements protect
human health and the environment.
``(3) 10-times level.--In issuing the regulation under
paragraph (2), the Administrator may alter to any extent the
10-times level for modifying the requirements of this section
and sections 3005(j) and 7004 so long as the changed
requirements protect human health and the environment.
``(4) Interim rule.--Until the Administrator modifies the
regulations under paragraph (1), a person may dispose of a
solid waste that is an identified characteristic waste or
listed waste and contains hazardous constituents not greater
than 10 times the land disposal restrictions treatment levels
issued by the Administrator under section 3004(m), as in
effect on August 31, 1993, in a hazardous waste management
facility that meets the requirements of this section, except
that--
``(A) the requirements of subsections (d), (e), (f), (g),
(j), and (m) shall not apply;
``(B) the air emission standards issued by the
Administrator under section 3004(n), as in effect on December
6, 1995, shall not apply to a tank or other container or to
surface impoundment if the average volatile organic
concentration of the hazardous waste at the point at which
the waste is discharged into the tank, container, or surface
impoundment is less than 500 parts per million by weight; and
``(C) the double-liner requirement stated in section
3004(o) may be waived by the Administrator for any monofill
if the monofill meets the same requirements as are applicable
under section 3005(j).
``(5) Permit.--No permit shall be required for storage and
treatment in a tank or other container or containment
building that meets the requirements of this section.''.
SEC. 6. RELATIONSHIP OF THE SOLID WASTE DISPOSAL ACT TO OTHER
STATUTES.
Section 1006(b)(1) of the Solid Waste Disposal Act (42
U.S.C. 6905(b)(1)) is amended--
(1) by striking ``(1) The Administrator'' and inserting the
following:
``(1) In general.--The Administrator'';
(2) by striking the second sentence; and
(3) by adding at the end the following:
``(2) Use of authorities.--If the Administrator determines
that a risk to health or the environment associated with the
management of solid waste can be eliminated or reduced to a
sufficient extent by actions taken under the authorities
contained in such other Federal laws, and the Administrator
has a statutory or court-ordered mandate to address that risk
to health or the environment within 5 years after the date of
enactment of this sentence, the Administrator shall use the
other authorities to protect against the risk.''.
______
Mr. LEAHY:
S. 1287. An act to amend chapters 83 and 84 of title 5, United States
Code, to provide that Federal employees who are erroneously covered by
the Civil Service Retirement System may elect to continue such coverage
or transfer to coverage under the Federal Employees Retirement System,
and for other purposes.
Federal Employee Retirement system (FERS) Transfer Legislation
Mr. LEAHY. Mr. President, today I am introducing a bill which
offers a legislative solution for a number of Federal employees who
have been the unwitting victims of paperwork errors. Over 10 years ago,
Congress passed a Public Law 98-369, which eliminated the Social
Security exclusion for Federal employees with prior military service.
This law was made retroactive to January of that year, and it was up to
each Federal agency to find the individual workers who were affected by
this law and change them from the old Civil Service Retirement System
[CSRS] into the Federal Employee Retirement System [FERS].
Unfortunately, a small but important group of workers have remained
in the CSRS retirement system, because of agency error. Over time,
these agencies have belatedly discovered employees who are improperly
enrolled in CSRS and are forcing them back to FERS. This has been
disruptive and unfair to the affected employees, since they are losing
many years of contributions to the Thrift Savings Plan, which my
colleagues know is critical to any FERS retirement. In many cases, the
agencies reluctantly made this switch, but they had no authority to
give a waiver to these public servants.
Today I am offering a bill which will allow Federal employees who
were inadvertently enrolled in the wrong retirement system to remain in
CSRS. It is nearly impossible to make an employee whole after many
years of contributing to the wrong retirement system, despite agency
efforts to do so. The number of employees affected by my legislation
may be small, perhaps as few as several dozen, but we need to correct
this oversight so that these workers may enjoy a full retirement.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1287
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SECTION 1. ELECTION OF FEDERAL RETIREMENT COVERAGE BY
EMPLOYEES ERRONEOUSLY COVERED BY THE CIVIL
SERVICE RETIREMENT SYSTEM.
(a) Civil Service Retirement System.--(1) Section
8331(1)(x) of title 5, United States Code, is amended by
inserting before the semicolon ``, except an employee who
elects to be covered under this chapter in accordance with
section 8347(r)''.
(2) Section 8347 of title 5, United States Code, is amended
by adding at the end thereof the following new subsection:
``(r)(1) This subsection shall apply to any employee who--
``(A) is subject to coverage under chapter 84; and
``(B) notwithstanding subparagraph (A), is covered under
this chapter as a result of an administrative error of an
employing agency or the Office of Personnel Management,
through no fault of the employee.
``(2)(A) No later than 180 days after the date on which an
employee described under paragraph (1) receives notice of
such administrative error, such employee may elect to--
``(i) continue coverage under this chapter; or
``(ii) be subject to coverage under chapter 84, subject to
regulations prescribed under paragraph (3).
``(B) An election under subparagraph (A) shall be
irrevocable. An employee who fails to make an election under
subparagraph (A) shall be subject to coverage under chapter
84, subject to regulations prescribed under paragraph (3).
``(3) The Office of Personnel Management shall prescribe
regulations to carry out this subsection.''.
(b) Federal Employees Retirement System; Exclusions.--
Section 8402(b) of title 5, United States Code, is amended--
(1) in paragraph (1) by striking out ``or'' after the
semicolon;
(2) in paragraph (2) by striking out the period at the end
thereof and inserting in lieu thereof a semicolon and ``or'';
and
(3) by adding after paragraph (2) the following new
paragraph:
``(3) any employee who elects to continue coverage under
chapter 83 in accordance with section 8347(r).''.
(c) Open Enrollment Period.--(1) During the 180-day period
beginning on the date of the enactment of this Act, the
Office of Personnel Management shall conduct a period of open
enrollment under section 8347(r) of title 5, United States
Code (as added by subsection (a) of this section).
(2) In addition to any employee to whom section 8347(r) of
title 5, United States Code, applies, an employee may make an
election during the period of open enrollment under paragraph
(1), if such employee--
[[Page S 14741]]
(A) on the date of the enactment of this Act is
participating under the Federal Employees Retirement System
under subchapter II of chapter 84 of title 5, United States
Code; and
(B) during any period before the date of the enactment of
this Act was covered under chapter 83 of title 5, United
States Code, as a result of an administrative error of an
employing agency or the Office of Personnel Management
through no fault of the employee.
(d) Regulations.--The regulations prescribed under section
8347(r)(3) of title 5, United States Code (as added by
subsection (a) of this section) shall--
(1) provide that an employee may not have periods of
simultaneous coverage under subchapter III of chapter 83 of
title 5, United States Code, and subchapter II of chapter 84
of such title; and
(2) include requirements similar to the applicable
requirements under title III of the Federal Employees
Retirement System Act of 1986 (Public Law 99-335; 100 Stat.
599; 5 U.S.C. 8331 note) including requirements relating to--
(A) the interest of a spouse or former spouse under section
301(d) of such Act;
(B) withholdings, deposits, interest, and refunds under
section 302 of such Act; and
(C) social security offsets under section 303 of such Act.
______
By Mr. KERRY:
S. 1290. A bill to reduce the deficit; to the Committee on the
Budget.
budget legislation
Mr. KERRY. Mr. President, I introduce a ``Budget Buster Bill''
that strips more than $90 billion from the budget and cuts 40 programs
which I consider to be pointless, wasteful, antiquated, or just plain
silly.
Our priority is people not ``pork'' or special interests, and this
proposal recognizes the need to cut while at the same time
understanding the need to invest in those things that bring this Nation
its greatest return.
I know that the budget debate is philosophically driven, and that
there are diametrically opposed positions on the legitimate role of
government. But no matter where one falls on the political spectrum, it
behooves us to point to specific savings that cross philosophical lines
which can and should be made.
We came to our senses last week, and in a display of commonsense
bipartisanship, we overwhelmingly passed an amendment that cut the mink
subsidy. There are other similar programs that we should cut, and this
bill cuts them.
It cuts $11 billion for the space station. It cuts $10 billion from
defense spending. It saves $360 million by reducing the number of
political appointees in the Federal Government; and it cuts 37 other
programs.
I know that this bill, in and of itself, won't balance the budget,
but it is one Senator's commonsense effort to answer the question, ``if
you really want to cut the budget, what would you cut and how would you
do it?''
Mr. President, there is no magic in this bill, but there is a healthy
dose of common sense that seems to be sorely lacking in the
ideologically driven budget debate that is speaking to the activist
extremes and ignoring the silent middle.
Despite the fact that a huge portion of the public has said they
don't like the way we do business; despite the fact that we talk about
change but rarely accomplish it; despite the fact that we claim to want
bipartisanship and avoid politics as usual, Congress and the President
together are willfully moving down a road that is guaranteed to leave
most Americans questioning the degree to which people here are in
touch.
I find that a profoundly disturbing direction, and I find it contrary
to all of the things that people are asking us to try to do. People
want us to behave like adults down here. They want an assurance that
critical services are not going to be made the poker chips of political
gamesmanship.
The point is that there are some basic needs that this country faces
and, to the best of my knowledge, most Americans think about having a
job and raising their paychecks sufficiently that they have quality of
life to be able to enjoy the fruits of their labor.
And most people think that the real concerns they express about
making sure their kids have the best education in the world, and that
they can walk through a neighborhood that is safe to get to a school
that is safe when they get there.
People are concerned about the quality of the education that they're
going to get in that school. And yet, the debate in this country has
been dominated by the return of a contribution to a campaign from a
Republican gay person; the symbolic issue of English as our national
language--which it is and ought to be; a constitutional amendment to
protect the flag. These truly are not the paramount concerns of
Americans but more of the traditional symbols of politics that are
beginning to make people question the entire political process.
Americans want to know if we're going to do the job. And the job we
were sent here to do is to produce a budget by the end of this month.
Rather than truly working on that budget, we are engaged in a charade
where we're going to pass a continuing resolution and a series of
appropriation bills without a true legislative effort but with one
party ordained to march in lock step to refuse any legislative
proposals that might improve it.
I believe that is an unacceptable way to do business and an avoidance
of our responsibility.
Frankly, it is time we put the interests of the Nation first, get off
the partisan track, and put America back on track.
Mr. President, this is a debate about economic fairness. It is about
what we believe in and what we stand for as a nation. It's about the
creation and preservation of jobs. It's a debate not about class
warfare--rich against poor--but about the working class and how we can
legislate in their interests for their future.
It's a debate about commitment to family, about realistic tax policy,
about access to education, and investments in our future.
It's about addressing the three deficits we face that I have
mentioned many times on this floor: the fiscal deficit, the investment
deficit, and the spiritual deficit.
I believe that this debate is fundamentally about how we can grow as
an economy, a nation, and a people, and about what the proper role and
size of the Federal Government should be.
For my part, any consensus on the budget must recognize four
principles: First that we will not compromise our commitment to
education, to jobs, to working families, and to senior citizens
struggling to make ends meet; that we will not dis-invest in our
economic, social, and cultural infrastructure; that we will not dis-
invest in necessary technologies and science; and that we will not cut
taxes unless and until we say to working Americans that there will be
an increase in the minimum wage.
I believe the cuts I am proposing and the bipartisan, commonsense
direction in which they take us is in our best interest.
______
By Mr. BROWN:
S. 1292. A bill to designate the U.S. Post Office building located at
201 East Pikes Peak Avenue in Colorado Springs, CO, as the ``Winfield
Scott Stratton Post Office,'' and for other purposes; to the Committee
on Governmental Affairs.
the winfield scott stratton post office act
Mr. BROWN. Mr. President, today I would like to introduce
legislation that would designate the U.S. Post Office building located
at 201 East Pikes Peak Avenue in Colorado Springs, CO, the Winfield
Scott Stratton Post Office.
This designation will honor the memory of a man who contributed
greatly to the community of Colorado Springs. Working as a carpenter
and prospector for over 18 years, Winfield Scott Stratton was one of
the many adventurers who came to Colorado looking for their fortune. In
his case, the fortune was a rich deposit of gold in Cripple Creek, CO.
Mr. Stratton's lifestyle changed little after his gold strike. He
believed it was the duty of anyone who made a fortune to use his wealth
in the development of his community. In keeping with that philosophy,
Mr. Stratton dedicated the rest of his life to helping others less
fortunate and to advancing the development of Colorado Springs and
Colorado.
He purchased and gave Colorado Springs the ground for its city hall;
he helped finance a new courthouse; he purchased and upgraded the
street railway system; he built the first privately funded building at
the Colorado School of Mines; and he endowed the Myron
[[Page S 14742]]
Stratton Home, a foster home for children and impoverished elderly
which is still serving the Colorado Springs community today. Thousands
of Coloradans today are the direct beneficiaries of Mr. Stratton's
generosity.
Regarding this bill, it is noteworthy that Winfield Scott Stratton
also purchased the property at 201 East Pikes Peak Avenue and sold it
to the Federal Government for half its value on the condition that the
Federal Government build the post office which stands there today.
In view of Mr. Stratton's contribution to the existing post office
and to Colorado as a whole, it is an entirely fitting and appropriate
gesture to name this U.S. Post Office the Winfield Scott Stratton Post
Office. He was a man who shared his riches with an entire State, and he
left a legacy of love and care which continues today.
______
By Mr. MURKOWSKI (for himself, Mr. Helms, Mr. McCain, and Mr.
Nickles):
S. 1293. A bill to provide for implementation of the Agreed Framework
with North Korea regarding resolution of the nuclear issue on the
Korean Peninsula, and for other purposes; to the Committee on Foreign
Relations.
agreed framework between the united states and north korea legislation
Mr. MURKOWSKI. Mr. President, today I am introducing legislation,
along with Senators Helms, McCain, and Nickles, which would provide a
means for the Congress to monitor the implementation of the ``Agreed
Framework between the United States and North Korea'' on nuclear
issues. This will ensure that when and if we vote funds for that
purpose, we know that that money is achieving the agreed objectives.
The legislation conditions the availability of U.S. funds for
fulfilling the accord on North Korea's abiding by the terms of the
Agreed Framework and Confidential Minute in accordance with the
schedule set forth in the agreement. Thus it adds necessary specificity
to the timing and sequencing of all aspects of the Agreed Framework.
The Agreed Framework is written in traditional diplomatic language,
with insufficient detail on the timing and nature of actions which both
North Korea and the United States must take to implement it. While I
appreciate the Administration's desire to have flexibility in
implementing the accord, it will be important that the North Koreans
and the Administration understand that the Congress desires greater
specificity if it is going to authorize and appropriate funds for this
accord.
I would add, Mr. President, that the legislation I am proposing is
fully consistent with the Agreed Framework and with current U.S.
policy. However, if this legislation causes difficulties for the
Administration at some point, the President can waive the provisions of
the legislation if he certifies to the Congress that it is vital to the
national security interests of the United States to do so.
In sum, the legislation provides the following:
Full political and economic normalization of relations--specifically
the exchange of Ambassadors and the total lifting of the economic
embargo--with North Korea can occur only after:
IAEA safeguards requirements are met, including inspections of 2
suspected nuclear waste sites.
Progress has been made in talks between North and South Korea.
A more effective, regularized process has been created to return U.S.
MIAs from the Korean War, including through joint field activities, as
in Vietnam.
North Korea no longer meets the criteria for inclusion on the list of
countries the governments of which support international terrorism.
North Korea takes positive steps to demonstrate greater respect for
human rights.
North Korea agrees to abide by Missile Technology Control Regime.
All spent fuel has been removed from North Korea to a third country.
North Korea's graphite reactors have been dismantled in a manner that
bars reactivation of such reactors and related facilities.
In short, until North Korea proves it is no longer a renegade state
and wishes to behave as a normal, respected member of the international
community, including through negotiating peacefully with the Republic
of Korea concerning the future of the Korean peninsula, we should not
establish full economic and political relations.
Interim steps toward full economic and political relations, such as
setting up diplomatic liaison offices and lifting certain economic
regulatory sanctions, are not restricted under the legislation. In
fact, I believe they can help provide incentives for the North Koreans
to move ahead in these areas of concern while also giving the
Administration useful leverage.
The legislation also provides that the United States will suspend
relevant activities described in the Agreed Framework if North Korea
reloads its existing 5 megawatt reactor or resumes construction of
nuclear facilities other than those permitted to be built under the
Agreed Framework.
The legislation also restricts United States direct or indirect
support for exports of heavy fuel oil to North Korea if that state does
not maintain the freeze on its nuclear program or takes steps regarding
that oil which are not permitted under the Agreed Framework.
Finally, the legislation has a reporting requirement to ensure that
congressional monitoring of the implementation of the Agreed Framework
and that the taxpayers' money is being spent effectively.
I look forward to extensive debate on this legislation and its early
passage.
Mr. McCAIN. Mr. President, as I have often said, I have serious
reservations about the October 1994 Nuclear Framework Agreement with
North Korea. Therefore, I am pleased to be an original sponsor, with
Senator Murkowski and others, of this legislation which would establish
needed specificity to the vagaries of the agreement and provide clearly
stated incentives for North Korean compliance with its terms.
This legislation would prohibit the use of any U.S. taxpayer dollars
to implement the Framework Agreement unless the Congress passes a law
authorizing and appropriating the funds. The President would also be
required to certify that North Korea is in full compliance with the
terms of the Framework Agreement before any authorized funds can be
spent.
The legislation would prohibit normalization of diplomatic and
economic relations between the United States and North Korea until
several conditions are met--conditions which clearly serve our national
interests, including the following:
North Korea must fully comply with the IAEA safeguards agreement for
its nuclear program.
North Korea must forswear any support for international terrorism,
and must demonstrate greater respect for human rights.
North Korea must halt the export of ballistic missiles and related
technology and agree to adhere to the Missile Technology Control
Regime.
The IAEA has inspected all suspected nuclear waste sites in North
Korea.
And most important, in my view, all spent nuclear fuel must be
removed from North Korea, and their existing graphite-based nuclear
reactors must be destroyed.
Mr. President, let me take a moment to discuss some of the glaring
flaws in the Framework Agreement, which are the principal reasons for
my sponsorship of this legislation, and my predictions for the failure
of the agreement.
The most charitable appraisal I can give the agreement is that it
represents a tendered bribe to North Korea in exchange for a limit on
its nuclear weapons program. The underlying problem with the Nuclear
Framework Agreement is that it is based not on trust, but on wishful
thinking. North Korea has a well-established record of breaking its
commitments to the U.S. and to the international community. At least
nine times during the past two-and-a-half years, the North Koreans have
reneged on their commitments. This agreement relies very heavily on
North Korean good faith--indeed, it virtually tempts the North Koreans
to break their word. That is its fundamental flaw.
The foolish time lags between North Korea's receipt of the benefits
of this agreement and the points at which they are required to prove
their good faith will, I believe, prove an irresistible temptation to
the North Koreans. This deal is front-end loaded in favor of North
Korea. Under the deal, North
[[Page S 14743]]
Korea gets free oil, the benefits of trade and diplomatic relations,
two new nuclear reactors, and untold additional benefits, including
tacit forgiveness of their blatant violation of the Nuclear Non-
Proliferation Treaty--most before incurring any real damage to their
nuclear weapons program.
Thus far, North Korea is only required to freeze its nuclear program
at Yongbyon, and freeze construction of two larger reactors. Since none
of these facilities fueled a single light bulb in North Korea (the
Yongbyon reactor was never connected to a power grid), this is not much
of a hardship.
The first serious obligation imposed on North Korea under the terms
of the agreement will not occur for 3 to 5 years from now. At that
time, they must begin to transfer the spent fuel rods to an undisclosed
third country. Regrettably, the Administration either doesn't know or
refuses to disclose when this transfer will occur and which country is
prepared to take the rods. We should insist on the transfer
immediately.
At that same time, as much as 5 years in the future, North Korea is
supposed to accept its second major obligation--challenge inspections
of undisclosed nuclear sites--especially the two suspected nuclear
waste sites. These inspections are the only hope we have of determining
what happened to the plutonium diverted during reprocessing in 1989. If
North Korea reneges on the deal at this point--after receiving all the
up-front benefits of the deal--we still won't know the truth about the
1989 refueling of the Yongbyon reactor, and thus the truth about North
Korea's nuclear weapons program.
Finally, the dismantlement of any of the North Korean nuclear
facilities will not begin until they have received one, fully
operational, $2 billion light water reactor. This could be 7 or more
years away. And they don't have to complete dismantlement of their
nuclear facilities until the second reactor is completed, perhaps at
much as 10 years from now.
The harsh truth is that, by the time the North Koreans remove one
brick from any of their nuclear facilities, they will have received
from the U.S. and our Asian allies as much as 5 million tons of oil,
inestimable millions in trade and investment opportunities, the
propaganda value of improved relations with the United States--quite
possibly at the expense of our relationship with South Korea, and a $2
billion, fully operational, state of the art, light water reactor--the
same kind we have pressured Russia and France not to sell to Iran.
The practical effect of providing significant amounts of energy and
economic aid to North Korea is to free up scarce hard currency for
North Korea to use for almost any purpose--whether it is beefing up
their military capability or rebuilding their failing infrastructure.
Either way, their economy is almost certainly going to improve, and we
may be facing a firmly entrenched Communist regime in North Korea for
decades to come.
Given North Korea's long history of broken promises and violated
agreements, why wouldn't we expect them to break their word again,
after collecting the many benefits of this agreement, and resume the
operation of their current facilities after 5 or 8 or 10 years. This
legislation would create clearly stated incentives for the North
Koreans to honor their commitments under the agreement and dismantle
their nuclear weapons program--incentives which were not included in
the agreement itself.
Mr. President, although I believe the framework agreement is
seriously flawed, I strongly believe that Congress should not overturn
the agreement. I do not want the U.S. Congress blamed for something
that will really be the result of North Korean duplicity. When this
agreement fails, I want it to be clear to all who is responsible for
the failure--so that we can proceed immediately to organize
international sanctions and other punitive measures which are designed
to remove the threat of nuclear proliferation from the Korean Peninsula
once and for all. That is what we should have done last year.
At the same time, the American taxpayer should not be expected to
underwrite this agreement--with one exception, which I will explain in
a moment.
Initially, the administration promised that the only financial
commitment undertaken by the United States in the agreement was a one-
time shipment of oil worth roughly $5 million. Subsequent to that
declaration, we learned that the President sent a letter to Kim Jong Il
promising to ask Congress to pay for the new reactors if funding cannot
be found elsewhere. To pay for the oil shipment, the administration
avoided coming to Congress and took $4.7 million from Defense
Department funds, using a little-known authority that is supposed to be
used for ``emergencies and extraordinary expenses''--and they did it
without giving Congress any prior notice.
I should note that this little-known ``emergency and extraordinary
expenses'' authority will not in the future be misused in such a
fashion. I was successful in including a provision in the fiscal year
1996 Defense authorization bill which establishes specific notification
requirements when the authority is exercised for any expenditure
exceeding $500,000. This provision will become law as part of the FY
1996 Defense Authorization Act.
Now, the Administration says that the U.S. financial commitment to
this agreement may ultimately amount to $20-30 million per year, or
$200-300 million over the ten-year period of the agreement.
Since the Administration claims they did not guarantee North Korea
that we will contribute anything more than the agreed upon oil
shipment, and since the Administration has already demonstrated its
intention to cut Congress out of the loop as much as possible, I think
Congress should decline to appropriate any further funds to implement
this accord--with one exception. That exception is with respect to the
security, safe storage, and subsequent removal from North Korea of the
8,000 spent nuclear fuel rods corroding in a cooling pond at Yongbyon.
I believe we should test North Korea's intentions as early as
possible. I believe we should identify a country willing to receive the
fuel rods, and ask North Korea to ship them there. Should they comply,
the U.S. should pay for the transfer. It's worth the cost, because we
will remove from North Korea enough plutonium for 5 or 6 nuclear
weapons, and we will have an early--though certainly not a definitive--
indicator of how seriously North Korea is taking its commitments under
this agreement.
Until the fuel is removed from North Korea, I believe it is
imperative to ensure the security and safe storage of the spent fuel. I
worked successfully in the Senate Armed Services Committee for a
provision allowing up to $5 million of DOE funds to be used to complete
work on the safe storage, or canning, of the spent nuclear fuel at the
Yongbyon reactor site. Some of my colleagues wanted to refuse even this
small amount of money, but I believe it would be counter-productive to
allow the spent fuel to remain in an open and degrading storage pond,
when we could at least ensure that it was less easily accessible to
North Korea in the event the agreement fails. This provision will
become law as part of the FY 1996 Defense Authorization Act.
Mr. President, the legislation I am introducing today, with Senator
Murkowski and others, is entirely consistent with the provisions of the
Framework Agreement between the U.S. and North Korea. It merely adds
specificity to the vagaries of the agreement, as well as incentives for
North Korean compliance with the agreement. It also ensures that North
Korea realizes a small part of the price it will pay for breaking its
word to dismantle its nuclear weapons program. And it permits the
President to waive any of its restrictive provisions if he certifies
that it is vital to U.S. national security to do so.
I urge my colleagues to support this legislation. It will ensure that
the laudable goals of the Framework Agreement are realized by fixing
its flaws.
______
By Mr. JEFFORDS:
S. 1294. A bill to amend title 10, United States Code, to repeal the
requirement that amounts paid to a member of the Armed Forces under the
Special Separation Benefits Program of the Department of Defense, or
under the Voluntary Separation Incentive Program of that Department, be
offset from amounts subsequently paid to that
[[Page S 14744]]
member by the Department of Veterans Affairs as disability
compensation; to the Committee on Armed Services.
title 10 amendment legislation
Mr. JEFFORDS. Mr. President, I reintroduce a bill to change
current law that requires amounts paid to a member of the Armed Forces
under the Special Separation Benefits and Voluntary Separation
Incentive Programs be offset from amounts subsequently paid to that
individual by the Department of Veterans Affairs as disability
compensation.
Since the end of the cold war, our country has called on military
personnel to participate in several dangerous military operations, most
recently in the Persian Gulf, Somalia, and Haiti. These personnel have
served our country well. Unfortunately, due to language in the
Department of Defense [DOD] Authorization Act for fiscal years 1992 and
1993, veterans who participate in the Department of Defense's
downsizing by selecting one of two options, either a special separation
bonus [SSB] lump sum payment or a voluntary separation incentive [VSI]
monthly payment, are prevented from receiving both disability
compensation from the VA and benefits from the SSB and VSI programs
until the separation compensation is offset completely. My bill will
address this injustice by repealing these provisions and allow for
concurrent receipt. It will also be retroactive to December 5, 1991, so
service members not able to receive payment concurrently since 1991
will be reimbursed for their lost compensation.
Mr. President, SSB and VSI benefits are for services rendered as
well as compensation for the veterans' participation in the DOD's
downsizing. VA disability pay is compensation for mental or physical
disabilities incurred in that service. These are two separate
compensations serving two very different purposes. Therefore, it is
unfair to the veteran to offset one payment with another.
Aside from the unfairness of offsetting the costs of unrelated
compensation benefits, many veterans who returned from the Persian Gulf
war have come down with strange illnesses which are believed to be
related to their service in the Persian Gulf. Individuals who have
accepted SSB or VSI payments are suffering both physically and
financially, as many cannot work under the conditions from which they
are suffering. Repealing the offset will help ease this financial
suffering.
I urge the Congress to correct this injustice to our Nation's
veterans and provide these veterans with the proper care and
compensation they deserve.
______
By Mr. HELMS (for himself, Mr. Faircloth, and Mr. Warner):
S. 1295. A bill to prohibit the regulation of any tobacco products,
or tobacco sponsored advertising, used or purchased by the National
Association of Stock Car Automobile Racing, its agents or affiliates,
or any other professional motor sports association by the Secretary of
Health and Human Services or any other instrumentality of the Federal
Government, and for other purposes; to the Committee on Commerce,
Science, and Transportation.
nascar legislation
Mr. HELMS. Mr. President, North Carolina is the home of professional
auto racing and it is on behalf of literally thousands of Tar Heels and
millions of other NASCAR racing fans across America that I today offer
in the Senate the companion bill of the Motor Sports Protection Act
which was introduced in the House on September 6 by the Honorable David
Funderburk, who ably represents the Second North Carolina Congressional
District.
Mr. President, the announcement last month of plans by the Food and
Drug Administration to designate tobacco has created much concern in my
State, and other tobacco-producing southern States. This is an example
of how Washington bureaucrats increase their regulatory power at the
expense of the livelihoods of the Nation's farmers and manufacturers.
The FDA's attack on tobacco advertising is sure to have a tremendously
adverse effect on NASCAR racing.
The issue is whether companies have a right to advertise
their products. Advertising is a lawful act and tobacco is a lawful
commodity. Unless and until tobacco is banned, proper advertising of
this lawful product must not be denied by bureaucratic wherein.
So, this bill will limit the Federal bureaucracy from imposing
advertising restrictions on any sponsors of pro racing. The motor
sports industry contributes more than $2 billion to the South's economy
every year. Racing fans are hard working, law-abiding Americans--they
don't deserve bureaucratic mistreatment.
Mr. President, not too long ago, the ``King'' of racing Richard Petty
retired. He left at a time when his name was synonymous with NASCAR
racing. He was a perfect example of what can be accomplished with
determination, faith, and family values. Richard Petty's success was
built on the cooperation of his family, friend, and companies that
supported him throughout his career.
My friend, Richard Petty sends word that he will very much appreciate
Senators' support of this bill, and so will I.
Mr. President, I ask unanimous consent that additional material be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
North Carolina Motor Speedway,
Rockingham, NC, September 19, 1995.
Hon. Jesse A. Helms,
Senate Dirkson Office Building,
Washington, DC.
Dear Senator Helms: I am writing to express my concern
about President Clinton's plan to regulate tobacco and their
sponsorship of motorsports events at North Carolina Motor
Speedway. The FDA's proposed regulation will have a severe
impact, not only on the Speedway, but also on Moore,
Richmond, and surrounding counties. Loss of sponsorships
might mean ticket prices could go up, quality of events and
facilities could go down, which could contribute to lower
attendance. Our area depends heavily on revenue from those
attending motorsports and other sponsored events. Local
communities will be an economic loser from reduced attendance
at events.
I would appreciate you writing back to me with your views
on this important issue. Thank you.
Sincerely,
Jo DeWitt Wilson,
President.
______
By Mr. HATCH (for himself, Mr. Breaux, Mr. Lugar, and Mr.
Cochran):
S. 1296. A bill to amend the Employee Retirement Income Security Act
of 1974 to clarify the treatment of a qualified football coaches plan;
to the Committee on Finance.
the qualified football coaches plan technical corrections act of 1995
Mr. HATCH. Mr. President, on behalf of myself and Senator Breaux, I
rise today to introduce the Qualified Football Coaches Plan Technical
Corrections Act of 1995. We are joined in this effort by Senators
Lugar, and Cochran.
As the title indicates, this bill is a technical correction to ensure
the proper qualification of a retirement plan for many of America's
college football coaches. All of us in this body are in favor of
encouraging retirement saving. However, the retirement plan set up for
many of these football coaches is in serious jeopardy.
Mr. President, let me explain what brought us to the point we are
today on this issue. In 1987, Congress recognized the unique aspects of
the coaching profession and passed legislation to permit the American
Football Coaches Association [AFCA] to set up and maintain a qualified
cash and deferred arrangement under Section 401(k) of the Internal
Revenue Code. The bill amended Title I of ERISA to permit such a plan
to be treated as a qualified multiemployer plan. Due to the frequency
with which football coaches change jobs, legislation was needed to
assist them in maintaining a retirement plan that is adequately
portable.
In reliance on this legislation, the American Football Coaches
Association, which represents over 4,400 college football coaches at
676 schools, sponsored a 401(k) plan for its members that today has
over 500 participants.
However, on the same day this legislation was passed, Congress was
involved in addressing another problem contained in ERISA that was
unrelated to the football coaches retirement plan. The problem was an
unfavorable Tax Court ruling that held that the ERISA standard
regarding employer withdrawals from pension plans, rather than the
standard under the Internal
[[Page S 14745]]
Revenue Code of 1986, applied for purposes of interpreting the Internal
Revenue Code. Thus, Congress, in an attempt to reject the holding of
the Tax Court as it applied to Title I of ERISA, included a provision
stating that Title I and Title IV of ERISA are not appicable in
interpreting the Internal Revenue Code of 1986. This, of course, had
the unintended consequence of deeming the football coaches retirement
plan an invalid plan for purposes of the Internal Revenue Code.
Following the creation of the retirement plan, the coaches
association asked the Internal Revenue Service to confirm the
tax qualified status of the retirement plan. On three separate
occasions, Mr. President, the Internal Revenue Service issued
determination letters confirming the tax qualified status of the plan
for years 1988, 1989, and 1991. It was not until 1992 that the Internal
Revenue Service determined that the 1987 provision invalidates what
Congress did in Title I of ERISA to authorize the coaches 401(k) plan.
In that year, the IRS changed its position on the exempt status of the
coaches' retirement plan and indicated it would revoke the
determination letters unless clarifying legislation is passed. The
horrible result will be a forced termination of the plan by the end of
1995 which will impose a substantial cost on the football coaches and
leave them without a retirement plan.
Mr. President, the original enacting legislation in 1987 was a
bipartisan effort cosponsored by 34 Members of the Senate and 151
Members in the House. This clarifying legislation is also a bipartisan
effort. This bill eliminate the uncertainty that these coaches have
been forced to live with since 1988.
Mr. President, I have requested the Joint Committee on Taxation
estimate the revenue impact of this bill. The Joint Committee concluded
that this change is technical in nature and would have no revenue
impact. However, I do want to point out that if this change is not
made, hundreds of coaches will risk the loss of retirement benefits.
This is not the message we should send to those who follow in good
faith, the actions of a prior Congress.
I wish to commend the Senator from Louisiana, Senator Breaux, for his
leadership on this issue. I urge my colleagues to support this
legislation. It is the right thing to do and is long overdue.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Qualified Football Coaches
Plan Technical Corrections Act of 1995''.
SEC. 2. CLARIFICATION OF TREATMENT OF QUALIFIED FOOTBALL
COACHES PLANS.
(a) In General.--Subparagraph (F) of section 3(37) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1002(37)(F)) is amended by redesignating clause (ii) as
clause (iii) and by inserting after clause (i) the following
new clause:
``(ii) For purposes of the Internal Revenue Code of 1986--
``(I) clause (i) shall apply, and
``(II) a qualified football coaches plan shall be treated
as a multiemployer collectively bargained plan.''
(b) Effective Date.--The amendments made by this section
shall apply to years beginning after December 22, 1987.
______
By Mr. HATCH (for himself and Mr. D'Amato)
S. 1297. An Act to amend the Internal Revenue Code of 1986 to
simplify certain provisions applicable to real estate investment
trusts.
THE REAL ESTATE INVESTMENT TRUST TAX SIMPLIFICATION ACT OF 1995
Mr. HATCH. Mr. President, on behalf of myself and Senator D'Amato, I
rise today to introduce the Real Estate Investment Trust Tax
Simplification Act of 1995, legislation to simplify and reform the tax
law concerning Real Estate Investment Trusts [REITs]. Similar
legislation has been introduced in the House by Representative E. Clay
Shaw, Jr. along with many other Representatives.
REITs were designed to allow small investors to invest in large real
estate projects that they otherwise could not afford to enter including
apartment buildings, office buildings, shopping centers, malls,
warehouses, etc. Real Estate Investment Trusts have become a very
popular from of investment as indicated by the fact that the market
capitalization in the whole industry has risen from $9 billion in 1991
to over $50 billion today.
Mr. President, if a REIT properly follows all of the rules, it is not
normally taxed at the entity level, but passes through most items of
income to the shareholders to report on their own individual tax
returns. However, there are many complexities and uncertainties--
minefields, if you will, for the unwary that can inadvertently penalize
investors and even the general public in some circumstances. This bill
is designed to alleviate these minefields.
Let me share with my colleagues an example of one of these
minefields. Under the current rules, in order to gain the benefits of
REIT taxation, the investment has to be passive in nature. Hence, the
normal procedure is for the REIT to buy the underlying property and
lease it out to tenants. However, the REIT must be careful not to
provide directly to the tenants any services that are not customary in
the real estate business. If this rule is violated, severe consequences
can follow. For example, under a literal interpretation of the law, if
a REIT that operates a retail mall provides wheelchairs to the
customers of the retail tenants, or even assist the tenant in moving
into it space, the entity's very status as a REIT could be placed in
jeopardy. This is ridiculous and needs to be changed.
Another unnecessary rule, Mr. President, could conceivably cause an
entire community to lost its health care facility. Let me explain.
Under the current law, if an operator of a health care facility owned
by a REIT defaults on its rent payments to the REIT, that health care
facility could be shut down for a long period of time, even though
there may be other health care operators willing and able to take over
the facility. Why? Because current law basically prohibits the REIT
from operating the facility itself and, at the same time, artificially
reduces the pool of potential operators that can run the health care
facility without causing undue tax problems to the REIT and its owners.
This potential problem faces many REITs and many communities inasmuch
as REITs currently own about $10 billion of investments in health care
facilities around the nation. This bill will eliminate the perverse
incentive to shut down such critical facilities in the unfortunate case
of foreclosure.
Mr. President, this bill also relaxes some of the current law's
onerous penalties for failing to perform some record keeping
requirements. Currently a REIT could lose its favored tax status simply
by failing to send out or receive back shareholder demand letters for
the purpose of verifying the fact that no five or fewer parties own
controlling interests in the REIT. So, even though the REIT in fact
meets this test, Mr. President, simply by failing to have on file
sufficient shareholder letters substantiating this fact, all of the
REIT shareholders could face the extremely harsh penalty of REIT
disqualification and double taxation.
Rather than penalizing the REIT so severely for this oversight, Mr.
president, this bill would impose a $25,000 penalty for failure to
comply with this requirement, if the failure is inadvertent in nature.
The penalty would rise to $50,000 in the case of willful noncompliance.
I believe my colleagues would agree that this approach makes much more
sense that the current rules since it serves as an adequate incentive
to keep the appropriate records without causing the unsuspecting,
innocent investors severe and unnecessary personal tax penalties.
Mr. President, this bill also addresses other problems that are
detailed in the summary of the bill that I ask unanimous consent to be
included in the Record after my remarks.
This bill is not controversial and will have a negligible effect on
revenues, according to the Joint Committee on Taxation. It is important
to note that this bill is endorsed by the National Association of Real
Estate Investment Trusts, which represents a high percentage of the
REIT industry. Whenever we can do things to simplify the tax code
without causing substantial
[[Page S 14746]]
revenue loss or negative policy consequences, we should do it. Mr.
President, this is an opportunity for us to do just that in the area of
Real Estate Investment Trusts. I urge my colleagues on both sides of
the aisle to join me in reforming and simplifying the tax law regarding
this very difficult and complex area of the law.
Mr. President, I ask unanimous consent that the text of the bill and
a detailed summary of its provisions be printed in the Record.
There being no objection, the materials were ordered to be printed in
the Record, as the follows:
S. 1297
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; AMENDMENT OF 1986 CODE.
(a) Short Title.--This Act may be cited as the ``Real
Estate Investment Trust Tax Simplification Act of 1995''.
(b) Amendment of 1986 Code.--Except as otherwise expressly
provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a
section or other provision, the reference shall be considered
to be made to a section or other provision of the Internal
Revenue Code of 1986.
TITLE I--REMOVAL OF TAX TRAPS FOR THE UNWARY
SEC. 101. CLARIFICATION OF LIMITATION ON MAXIMUM NUMBER OF
SHAREHOLDERS.
(a) Rules Relating to Determination of Ownership.--
(1) Failure to issue shareholder demand letter not to
disqualify reit.--Section 857(a) (relating to requirements
applicable to real estate investment trusts) is amended by
striking paragraph (2) and by redesignating paragraph (3) as
paragraph (2).
(2) Shareholder demand letter requirement; penalty.--
Section 857 (relating to taxation of real estate investment
trusts and their beneficiaries) is amended by redesignating
subsection (f) as subsection (g) and by inserting after
subsection (e) the following new subsection:
``(f) Real Estate Investment Trusts To Ascertain
Ownership.--
``(1) In general.--Each real estate investment trust shall
each taxable year comply with regulations prescribed by the
Secretary for the purposes of ascertaining the actual
ownership of the outstanding shares, or certificates of
beneficial interest, of such trust.
``(2) Failure to comply.--
``(A) In general.--If a real estate investment trust fails
to comply with the requirements of paragraph (1) for a
taxable year, such trust shall pay (on notice and demand by
the Secretary and in the same manner as tax) a penalty of
$25,000.
``(B) Intentional disregard.--If any failure under
paragraph (1) is due to intentional disregard of the
requirement under paragraph (1), the penalty under
subparagraph (A) shall be $50,000.
``(C) Failure to comply after notice.--The Secretary may
require a real estate investment trust to take such actions
as the Secretary determines appropriate to ascertain actual
ownership if the trust fails to meet the requirements of
paragraph (1). If the trust fails to take such actions, the
trust shall pay (on notice and demand by the Secretary and in
the same manner as tax) an additional penalty equal to the
penalty determined under subparagraph (A) or (B), whichever
is applicable.
``(D) Reasonable cause.--No penalty shall be imposed under
this paragraph with respect to any failure if it is shown
that such failure is due to reasonable cause and not to
willful neglect.''
(b) Compliance With Closely Held Prohibition.--
(1) In general.--Section 856 (defining real estate
investment trust) is amended by adding at the end the
following new subsection:
``(k) Requirement That Entity Not Be Closely Held Treated
as Met in Certain Cases.--A corporation, trust, or
association--
``(1) which for a taxable year meets the requirements of
section 857(f)(1), and
``(2) which does not know, or exercising reasonable
diligence would not have known, whether the entity failed to
meet the requirement of subsection (a)(6),
shall be treated as having met the requirement of subsection
(a)(6) for the taxable year.''
(2) Conforming amendment.--Paragraph (6) of section 856(a)
is amended by inserting ``subject to the provisions of
subsection (k),'' before ``which is not''.
SEC. 102. DE MINIMIS RULE FOR TENANT SERVICES INCOME.
(a) In General.--Paragraph (2) of section 856(d) (defining
rents from real property) is amended by striking subparagraph
(C) and the last sentence and inserting:
``(C) any impermissible tenant service income (as defined
in paragraph (7)).''
(b) Impermissible Tenant Service Income.--Section 856(d) is
amended by adding at the end the following new paragraph:
``(7) Impermissible tenant service income.--For purposes of
paragraph (2)(C)--
``(A) In general.--The term `impermissible tenant service
income' means, with respect to any real or personal property,
any amount (other than amounts described in subparagraph (B)
or (C) of paragraph (1)) received or accrued directly or
indirectly by the real estate investment trust for--
``(i) services furnished or rendered by the trust to the
tenants of such property, or
``(ii) managing or operating such property.
``(B) Disqualification of all amounts where more than de
minimis amount.--If the amount described in subparagraph (A)
with respect to a property exceeds 1 percent of all amounts
received or accrued directly or indirectly by the real estate
investment trust with respect to such property, the
impermissible tenant service income of the trust with respect
to the property shall include all such amounts.
``(C) Exceptions.--For purposes of subparagraph (A)--
``(i) services furnished or rendered, or management or
operation provided, through an independent contractor from
whom the trust itself does not derive or receive any income
shall not be treated as furnished, rendered, or provided by
the trust, and
``(ii) there shall not be taken into account any amount
which would be excluded from unrelated business taxable
income under section 512(b)(3) if received by an organization
described in section 512(a)(2).
``(D) Amount attributable to impermissible services.--For
purposes of subparagraph (A), the amount treated as received
for any service (or management or operation) shall not be
less than 150 percent of the actual direct cost of the trust
in furnishing or rendering the service (or providing the
management or operation).
``(E) Coordination with limitations.--For purposes of
paragraphs (2) and (3) of subsection (c), amounts described
in subparagraph (A) shall be included in the gross income of
the corporation, trust, or association.''
SEC. 103. ATTRIBUTION RULES APPLICABLE TO TENANT OWNERSHIP.
Section 856(d)(5) (relating to constructive ownership of
stock) is amended by adding at the end the following: ``For
purposes of paragraph (2)(B), section 318(a)(3)(A) shall be
applied under the preceding sentence in the case of a
partnership by taking into account only partners who own
(directly or indirectly) 25 percent or more of the capital
interest, or the profits interest, in the partnership.''
TITLE II--CONFORMITY WITH REGULATED INVESTMENT COMPANY RULES
SEC. 201. CREDIT FOR TAX PAID BY REIT ON RETAINED CAPITAL
GAINS.
(a) General Rule.--Paragraph (3) of section 857(b)
(relating to capital gains) is amended by redesignating
subparagraph (D) as subparagraph (E) and by inserting after
subparagraph (C) the following new subparagraph:
``(D) Treatment by shareholders of undistributed capital
gains.--
``(i) Every shareholder of a real estate investment trust
at the close of the trust's taxable year shall include, in
computing his long-term capital gains in his return for his
taxable year in which the last day of the trust's taxable
year falls, such amount as the trust shall designate in
respect of such shares in a written notice mailed to its
shareholders at any time prior to the expiration of 60 days
after the close of its taxable year (or mailed to its
shareholders or holders of beneficial interests with its
annual report for the taxable year), but the amount so
includible by any shareholder shall not exceed that part of
the amount subjected to tax in subparagraph (A)(ii) which he
would have received if all of such amount had been
distributed as capital gain dividends by the trust to the
holders of such shares at the close of its taxable year.
``(ii) For purposes of this title, every such shareholder
shall be deemed to have paid, for his taxable year under
clause (i), the tax imposed by subparagraph (A)(ii) on the
amounts required by this subparagraph to be included in
respect of such shares in computing his long-term capital
gains for that year; and such shareholders shall be allowed
credit or refund as the case may be, for the tax so deemed to
have been paid by him.
``(iii) The adjusted basis of such shares in the hands of
the holder shall be increased with respect to the amounts
required by this subparagraph to be included in computing his
long-term capital gains, by the difference between the amount
of such includible gains and such holder's credit or refund
determined under clause (ii).
``(iv) In the event of such designation, the tax imposed by
subparagraph (A)(ii) shall be paid by the real estate
investment trust within 30 days after the close of its
taxable year.
``(v) The earnings and profits of such real estate
investment trust, and the earnings and profits of any such
shareholder which is a corporation, shall be appropriately
adjusted in accordance with regulations prescribed by the
Secretary.
``(vi) As used in this subparagraph, the terms `shares' and
`shareholders' shall include beneficial interests and holders
of beneficial interest, respectively.''
(b) Conforming Amendments.--
(1) Clause (i) of section 857(b)(7)(A) is amended by
striking ``subparagraph (B)'' and inserting ``subparagraph
(B) or (D)''.
(2) Clause (iii) of section 852(b)(3)(D) is amended by
striking ``by 65 percent'' and all that follows and inserting
``by the difference between the amount of such includible
gains and such holder's credit or refund determined under
clause (ii).''
[[Page S 14747]]
TITLE III--OTHER SIMPLIFICATION
SEC. 301. MODIFICATION OF EARNINGS AND PROFITS RULES FOR
DETERMINING WHETHER REIT HAS EARNINGS AND
PROFITS FROM NON-REIT YEAR.
Subsection (d) of section 857 is amended by adding at the
end the following new paragraph:
``(3) Distributions to meet requirements of subsection
(a)(2)(B).--Any distribution which is made in order to comply
with the requirements of subsection (a)(2)(B)--
``(A) shall be treated for purposes of this subsection as
made from the earliest accumulated earnings and profits
(other than earnings and profits to which subsection
(a)(2)(A) applies) rather than the most recently accumulated
earnings and profits, and
``(B) shall not be treated as a distribution for purposes
of subsection (b)(2)(B).''
SEC. 302. TREATMENT OF FORECLOSURE PROPERTY.
(a) Grace Periods.--
(1) Initial period.--Paragraph (2) of section 856(e)
(relating to special rules for foreclosure property) is
amended by striking ``on the date which is 2 years after the
date the trust acquired such property'' and inserting ``as of
the close of the 3d taxable year following the taxable year
in which the trust acquired such property''.
(2) Extension.--Paragraph (3) of section 856(e) is
amended--
(A) by striking ``or more extensions'' and inserting
``extension'', and
(B) by striking the last sentence and inserting: ``Any such
extension shall not extend the grace period beyond the close
of the 3d taxable year following the last taxable year in the
period under paragraph (2).''
(b) Revocation of Election.--Paragraph (5) of section
856(e) is amended by striking the last sentence and
inserting: ``A real estate investment trust may revoke any
such election for a taxable year by filing the revocation (in
the manner provided in regulations by the Secretary) on or
before the due date (including any extension of time) for
filing its return of tax under this chapter for the taxable
year. If a trust revokes an election for any property, no
election may be made by the trust under this paragraph with
respect to the property for any subsequent taxable year.''
(c) Certain Activities Not To Disqualify Property.--
Paragraph (4) of section 856(e) is amended by adding at the
end the following new flush sentence:
``For purposes of subparagraph (C), property shall not be
treated as used in a trade or business by reason of any
activities of the real estate investment trust with respect
to such property to the extent that such activities would not
result in amounts received or accrued, directly or
indirectly, with respect to such property being treated as
other than rents from real property.''
SEC. 303. SPECIAL FORECLOSURE RULES FOR HEALTH CARE
PROPERTIES.
Section 856(e) (relating to special rules for foreclosure
property) is amended by adding at the end the following new
paragraph:
``(6) Special rules for qualified health care properties.--
For purposes of this subsection--
``(A) Acquisition by lease terminations.--The term
`foreclosure property' shall include any qualified health
care property acquired by a real estate investment trust as
the result of the termination or expiration of a lease of
such property.
``(B) Grace period.--For purposes of qualified health care
property of a real estate investment trust qualifying as
`foreclosure property' under subparagraph (A), the qualified
health care property shall cease to be foreclosure property
on the date which is 2 years after the date such trust
acquired such property.
``(C) Extensions.--If the real estate investment trust
establishes to the satisfaction of the Secretary that an
extension of the grace period in Subparagraph (B) is
necessary to the orderly leasing or liquidation of the
trust's interest in such qualified health care property, the
Secretary may grant one or more extensions of the grace
period for such qualified health care property. Any such
extension shall not extend the grace period beyond the date
which is 6 years after the date such trust acquired such
qualified health care property.
``(D) Income from independent contractors.--For purposes of
applying paragraph (4)(C) with respect to qualified health
care property which is foreclosure property, income derived
or received by the trust from an independent contractor shall
be disregarded to the extent such income is attributable to--
(i) leases existing on the date the real estate investment
trust acquired the qualified health care property, or
(ii) leases extended or entered into after the trust
acquired such property from lessees pursuant to terms set
forth in such existing leases or on terms under which the
trust receives a substantially similar or lesser benefit in
comparison to the previous lease for such property.
``(E) Qualified health care property.--The term `qualified
health care property' means any real property (including
interests therein), and any personal property incident to
such real property, which--
``(i) is a hospital, outpatient medical clinic, nursing
facility, assisted living facility, or other licensed health
care facility which extends medical or nursing or ancillary
services to patients and which, immediately before the
termination, expiration, or breach of the lease of or
mortgage secured by such facility, was operated by a provider
of such services which was eligible for participation in the
medicare program under title XVIII of the Social Security Act
with respect to such facility, or
``(ii) is necessary or incidental to the use of such a
health care facility.''
SEC. 304. PAYMENTS UNDER HEDGING INSTRUMENTS.
Section 856(c)(6)(G) (relating to treatment of certain
interest rate agreements) is amended to read as follows:
``(G) Treatment of certain hedging instruments.--Except to
the extent provided by regulations, any--
``(i) payment to a real estate investment trust under an
interest rate swap or cap agreement, option, futures
contract, forward rate agreement, or any similar financial
instrument, entered into by the trust in a transaction to
hedge any indebtedness incurred or to be incurred by the
trust to acquire or carry real estate assets, and
``(ii) gain from the sale or other disposition of any such
investment,
shall not be taken into account under paragraphs (2), (3),
and (4).
SEC. 305. EXCESS NONCASH INCOME.
Section 857(e)(2) (relating to determination of amount of
excess noncash income) is amended--
(1) by striking subparagraph (B),
(2) by striking the period at the end of subparagraph (C)
and inserting a comma,
(3) by redesignating subparagraph (C) (as amended by
paragraph (2)) as subparagraph (B), and
(4) by adding at the end the following new subparagraphs:
``(C) the amount (if any) by which--
``(i) the amounts includible in gross income with respect
to instruments to which section 860E(a) or 1272 applies,
exceed
``(ii) the amount of money and the fair market value of
other property received during the taxable year under such
instruments, and
``(D) amounts includible in income by reason of
cancellation of indebtedness.''
SEC. 306. PROHIBITED TRANSACTION SAFE HARBOR.
Clause (iii) of section 857(b)(6)(C) (relating to certain
sales not to constitute prohibited transactions) is amended--
(1) by striking ``(other than foreclosure property)'' in
subclauses (I) and (II) and inserting ``(other than sales of
foreclosure property or sales to which section 1033
applies)'', and
(2) by striking ``(as determined for purposes of computing
earnings and profits)'' in subclause (II) and inserting
``(determined without regard to any adjustment for
depreciation or amortization)''.
SEC. 307. SHARED APPRECIATION MORTGAGES.
(a) Bankruptcy Safe Harbor.--Section 856(j) (relating to
treatment of shared appreciation mortgages) is amended by
redesignating paragraph (4) as paragraph (5) and by inserting
after paragraph (3) the following new paragraph:
``(4) Coordination with 4-year holding period.--
``(A) In general.--For purposes of section 857(b)(6)(C), if
a real estate investment trust is treated as having sold
secured property under paragraph (3)(A), the trust shall be
treated as having held such property for at least 4 years
if--
``(i) the secured property is sold or otherwise disposed of
pursuant to a case under title 11 of the United States Code,
``(ii) the seller is under the jurisdiction of the court in
such case, and
``(iii) the disposition is required by the court or is
pursuant to a plan approved by the court.
``(B) Exception.--Subparagraph (A) shall not apply if--
``(i) the secured property was acquired by the trust with
the intent to evict or foreclose, or
``(ii) the trust knew or had reason to know that default on
the obligation described in paragraph (5)(A) would occur.''
(b) Clarification of Definition of Shared Appreciation
Provision.--Clause (ii) of section 856(j)(5)(A) is amended by
inserting ``or appreciation in value'' after ``gain'' each
place it appears.
SEC. 308. WHOLLY OWNED SUBSIDIARIES.
Section 856(i)(2) (defining qualified REIT subsidiary) is
amended by striking ``at all times during the period such
corporation was in existence''.
TITLE IV--EFFECTIVE DATE
SEC. 401. EFFECTIVE DATE.
The amendments made by this Act shall apply to taxable
years beginning after the date of the enactment of this Act.
____
section-by-section analysis
TITLE I. REMOVAL OF TAX TRAPS FOR THE UNWARY
SEC. 101. SHAREHOLDER DEMAND LETTER
Sections 856(a)(5) and 856(a)(6) require that a REIT have
at least 100 beneficial owners, and that it not be ``closely
held'' within the meaning of the personal holding company
rules. A REIT that is disqualified because it fails to meet
the requirements in section 856(a) generally may not elect
REIT status again for a period of 5 years.
In addition, section 857(a)(2) disqualified a REIT for any
year in which it does not comply with Internal Revenue
Service (``IRS'') regulations prescribed to ascertain the
``actual ownership'' of the REIT's outstanding shares.
Sections 1.857-8(d) and (e) of the Income Tax Regulations
(the ``Regulations'')
[[Page S 14748]]
require a REIT to demand, from its shareholders of record, a written
statement identifying the ``actual owner'' (for income tax
purposes) of the stock held in such shareholder's name. The
Regulations specify which shareholders must be sent such
letter, based on the total number of REIT shareholders and
the percentage of shares held by each record holder. This
demand letter must be sent within 30 days of the close of the
REIT's taxable year.
Failure to comply with the rules in Regulations section
1.857-8, through inadvertence or otherwise, technically
causes disqualification of REIT status for the taxable year,
notwithstanding that the REIT may satisfy the substantive
share ownership rules in section 856(a)(6). As in the case of
any disqualification under section 856(a), a REIT that is
disqualified under the shareholder demand letter regulations
may not elect REIT status again for a period of 5 years
without IRS consent.
Even those REITs that comply with the demand letter
regulations, and are not aware of any violations of the
ownership test, cannot know for certain whether they complied
with such tests, the ownership information is not in the
hands of the REIT and the REIT cannot compel its shareholders
to respond to the demand letter. This uncertainty is
increased for publicly-traded REITs that have a large portion
of their shares held in ``street name.''
This bill proposes that a failure to comply with the
shareholder demand letter regulations should not, by itself,
disqualify a REIT if the REIT otherwise establishes that it
satisfies the substantive rules involved. Under these
circumstances, a $25,000 penalty ($50,000 for intentional
violations) would be imposed for any year in which the REIT
did not comply with the shareholder demand letter regulations
and the REIT would be required, when requested by the IRS,
to send curative demand letters. This bill strikes the
right balance between the ``atomic bomb'' consequences of
present law and the need to provide a disincentive for
REITs not to send out demand letters.
Also under this bill, a REIT would be deemed to satisfy the
share ownership requirements in section 856(a)(6) if it
complies with the shareholder demand letter regulations and
does not know, or have reason to know, of an actual violation
of the ownership rules. Thus, a REIT that complies with the
regulations, but is unable to discover an actual ownership
violation and has no reason to suspect such a violation,
would not be disqualified before it has reason to know of
such violation. This amendment is vital to protect companies
that exercise their best efforts to comply with the ownership
rules, but somehow later discover that a technical violation
exists.
SEC. 102. PROPERTY MANAGEMENT--DE MINIMIS RULE FOR TENANT
SERVICES INCOME.
The REIT tax provisions include several independent
contractor rules. The primary rule is found in section
856(d)(2)(C), which generally provides that ``rents from real
property'' do not include amounts received with respect to
the property if the REIT furnishes services to the tenants,
or manages or operates the property, other than through an
independent contractor. Congress modified this rule in 1986
by adding the language at the end of section 856(d)(2)(C).
This language permits the REIT to receive amounts for
furnishing customary services or managing property, without
using an independent contractor, provided such amounts would
be excluded from unrelated business taxable income under
section 512(b)(3) if received by a section 511(a)(2) exempt
organization.
Congress' relaxation of the independent contractor rule has
helped the industry in efficiently managing rental properties
on a competitive basis. However, certain problems persist.
Under the existing language of section 856(d)(2)(C), the
receipt of even a de minimis amount of non-qualified income
or rendering a small amount of impermissible services with
respect to a given property may disqualify all rents received
with respect to such property. The disqualification of the
entire property's rents could jeopardize the REITS's
qualified status.
The present independent contractor rule creates significant
administrative burdens for REITs because of the need to
ensure that no REIT personnel ever perform any disqualifying
service. In addition, due to the inherent ambiguity of the
rule, significant time and expense are incurred by both REITs
and the IRS in applying for and issuing private letter
rulings that delineate permissible and impermissible
services. Further, even a vigilant and conservative REIT
cannot control whether a particular employee performs a
service to its tenants that may taint the rents on a
property. Last, the present rule unreasonably penalizes a
REIT for providing services (which may be directly related to
the operation of its property) to a tenant (by tainting all
amounts received from that tenant) that it may, with much
less chance of disqualification, provide to third parties.
This bill proposes a de minimis exception to the
independent contractor rule. This proposal would simplify
REIT administration and would remove the risk of
disqualifying a REIT that inadvertently performs nominal,
although impressible, services. Further, the proposal would
not encourage international disregard for the independent
contractor rule, because of the relatively small amount of
services that it would permit.
The approach taken in this bill would provide a simple,
bright line test that the IRS could administer easily.
SEC. 103. ATTRIBUTION RULES APPLICABLE TO TENANT OWNERSHIP.
Section 856(d)(2)(B) generally disqualifies rents received
from any person, if the REIT owns 10% or more of the
ownership interests in such person or has an interest equal
to 10% or more in the assets or net profits of such person.
For purposes of determining the REIT's ownership interest in
a tenant, the attribution rules of section 318 apply, except
that 10% is substituted for 50% when it appears in
subparagraph (C) of section 318(a)(2) and 318(a)(3). Under
section 318(a)(3)(A), stock owned, directly or indirectly, by
a partner is considered owned by the partnership. In
addition, under section 318(a)(3)(C) a corporation is
considered as owning stock that is owned, directly or
indirectly, by or for a person who also owns more than 50%
(10% for REITs) of the stock in such corporation.
The attribution rules may create an unintended result when
several persons who own collectively 10% of a REIT's tenant,
also own collectively 10% of the REIT. So long as these
persons are unrelated and their individual interest in each
entity is less than 10%, then no violation of section
856(d)(2) occurs. However, if each of these persons happen to
obtain an interest, no matter how small, in the same
unrelated partnership, then the attribution rules may cause
the rents received from the tenant to be disqualified under
section 856(d)(2). Such a result could occur even though
section 318(a)(5)(C) specifically provides that the stock
ownership interests of a partner are not to be attributed to
another partner via the partnership.
Under one understanding of current law, the problem arises
because all of the partners' shares of stock in the tenant
are attributed to the unrelated partnership under section
318(a)(3)(A). Since the partnership also is considered as
owning the partners' shares in the REIT, section 318(a)(3)(C)
treats the REIT as owning all of the shares in the tenant
that are deemed held by the partnership. Thus, the rule in
section 856(d)(2) is violated.
The potential for disqualification, under one reading of
current law, is detailed in the following example: Pension
Plan A holds stock representing 10% of the value in REIT. The
remaining shares of REIT are publicly held. Pension Plan A
and Corporation B each hold a 1% interest by value in
Partnership, and the remainder of Partnership's interests are
publicly held. Partnership holds various securities in
entities other than REIT. Tenant, which leases retail space
from REIT, is 10% owned by Corporation B, with the remaining
interest publicly-held. Under section 318(A)(3)(A),
Partnership is deemed to own A's 10% interest in the value of
REIT and B's 10% interest in Tenant. Further, section
318(a)(3)(C) provides that REIT is deemed to own any stock
held by its 10% shareholder. As a result, REIT could be
deemed to own Partnership's deemed interest in Tenant. If
so, the Tenant's rent payments to REIT would be
disqualified.
These attribution rules disqualify amounts as rent even
when the relationship between the tenant and the REIT is
tenuous at best and abuse of the REIT concept is
inconceivable. In any event, the rules are largely
unenforceable because one partner will not know what the
other partners own. The problem is particularly problematic
with institutional investors that own small percentage
interests in multiple partnerships owning securities and
other assets unrelated to a REIT.
One understanding of the interplay between section
318(a)(3)(A) and (a)(3)(C) with the facts described above is
equivalent to applying attribution rules to shares of stock
held by partners. As noted, this is contrary to the policy
set forth in section 318(a)(5)(C), which prohibits the
reattribution of stock constructively owned by a partnership
(via a partner) to another partner in the partnership.
Without this partner-to-partner attribution, neither A nor B
in the examples above, directly or indirectly, hold the 10%
interest in both REIT and Tenant that section 856(d)(2)(B)
requires for disqualification. Congress solved a similar
problem of ``partner to partner'' attribution in another REIT
context. In determining whether a REIT is ``closely held''
for purposes of section 856(a)(6), the attribution rules in
section 544 apply. In 1986, Congress enacted section 856(h),
which provides in part that the attribution rules in section
544 will apply as if they did not include the phrase ``or by
or for his partner.''
This bill would modify the application of section
318(a)(3)(A) (attribution to partnerships), for purposes of
section 856(d)(2), so that attribution would occur only when
a partner owns a 25% or greater interest in the partnership.
Applying a percentage threshold (rather than suspending
entirely the application of section 318(a)(3)(A) would
prevent the potentially abusive technique of placing
``dummy'' partnerships between individuals and the REIT. This
is a common sense approach that would simplify monitoring the
ownership interests of all involved parties.
TITLE II. CONFORMITY WITH REGULATED INVESTMENT COMPANY RULES
SEC. 201. CREDIT FOR TAX PAID BY REIT ON RETAINED CAPITAL
GAINS.
Under the regulated investment company ((``RIC'')
provisions, RICs (also known as mutual funds) always have
been permitted to pass through a credit to their shareholders
for taxes paid on retained capital gains. This
[[Page S 14749]]
treatment helps preserve the capital base of the company,
while respecting the principle of a single level of
taxation.
Under section 857(b)(3)(A)(ii) and section 4981(c)(1)(B), a
REIT need not distribute capital gains to its shareholders,
but may be subject to tax on such undistributed gains under
section 1201(a). A subsequent distribution of such gains is
taxable to the REIT's shareholders, resulting in a double
tax.
This double tax is inconsistent with the original
Congressional intent to create a real estate entity parallel
to RICs, and limits a REIT's ability to effectively manage
assets. Because of the potential double tax on capital
transactions, a REIT usually is compelled to either
distribute any sale proceeds or not complete the transaction.
This would amend section 857(b)(3) to mirror the rules
applicable to RICs.
TITLE III. OTHER SIMPLIFICATION
SEC. 301. EARNINGS & PROFITS--DISTRIBUTION RULE.
Enacted in 1986, section 857(a)(3) requires newly-electing
REITs to distribute, during their first REIT taxable year,
earnings and profits (``E&P'') that were accumulated in non-
REIT years. The ordering rule in section 316 complicates the
E&P distribution requirement, by treating all distributions
as being made from the most recently accumulated E&P. Under
this rule, the unexpected realization of income near the end
of the year can convert previous distributions of accumulated
E&P into distributions from current E&P. For example, assume
a company distributes $200x in November, which represents its
current E&P to date ($100x) and its entire accumulated E&P
($100x), and makes no other distributions during the year. If
the company earns an additional $10x in December, its
accumulated E&P as of the end of the year is $10x,
notwithstanding the prior $200x distribution.
The effect of the E&P rule in section 316 could be
disastrous for a newly-electing REIT that is required to
distribute all of its accumulated E&P during its first REIT
year. The year-end receipt of any form of unanticipated
income, such as unexpected overages from shopping mall
tenants, could cost the new REIT its qualification. Most
REITs (and most taxpayers, for that matter) cannot determine
precisely the amount of their income before the end of the
year. Ordinarily, the receipt of nominal amounts of income
near the end of the year do not cause problems for
established REITs, since they can use the ``subsequent
declared dividend'' election in section 858 to make sure they
meet their annual requirements to distribute 95 percent of
their income.
However, the requirement in section 857(a)(3) effectively
overrides the 95 percent income distribution requirement,
since no accumulated E&P can be distributed until the REIT
distributes 100 percent of current E&P. In addition, the
section 858 election, which historically was available
for all required distributions, cannot be used for section
857(a)(3) distributions since this election is available
only for distributions of current E&P.
The ability to retain a small percentage of current
earnings and the section 858 election both have been part of
the REIT tax rules since 1960. Until 1986, REITs were not
required to distribute any portion of their accumulated E&P.
These adverse effects of the new accumulated E&P distribution
requirement on both of these provisions is an unintended
consequence of the 1986 change.
This bill would deem section 857(a)(3) distributions as
being made first from accumulated E&P, then from current E&P.
This provision would ensure that year-end receipts of
unanticipated income would not cause a new REIT to be
disqualified. The proposal would not affect the requirement
that such REIT also must distribute 95% of its current
income, nor would it otherwise alter the traditional ordering
rule for E&P distributions.
SEC. 302. FORECLOSURE PROPERTY.
A REIT is permitted to conduct a trade or business using
property acquired through foreclosure for 90 days after it
acquired such property, provided the REIT makes a foreclosure
property election. After the 90-day period, the REIT may no
longer conduct such trade or business, except through an
independent contractor from whom the REIT does not derive or
receive any income. Property is eligible for a foreclosure
election if a REIT acquired it through foreclosure on a loan
or default on a lease, but not if a REIT acquired it because
a lease expired.
If it makes the foreclosure property election in section
856(e)(5), a REIT may hold foreclosure property for resale to
customers without being subject to the 100% penalty tax under
the prohibited transaction rules. Non-qualifying income from
foreclosure property generally is subject to the highest
corporate tax rate. The foreclosure property election is
valid for 2 years, but may be extended up to 6 years with the
IRS' consent. Under section 856(e)(4)(C), foreclosure
property status is lost if, at some time after 90 days from
the date such property is acquired, the property is used in a
trade or business conducted by the REIT (other than through
an independent contractor from whom the REIT does not derive
any income).
This bill would make the period covered by an election
three years and the initial foreclosure property election
valid until the last day of the third full taxable year
following the election. The present 2-year period is not a
realistic time period for disposing of foreclosure property,
especially in a depressed real estate market. In addition,
this bill would reduce recordkeeping and filing requirements
associated with managing foreclosure property and the need
for the IRS to review extension requests.
Further, this bill would modify the rule in section
856(e)(4)(C) that requires a REIT to use an independent
contractor to manage foreclosure properties. This
modification would make the rule parallel to the primary
independent contractor rule in section 856(d)(2)(C). This
change would reduce the technical complexity and
administrative costs associated with managing foreclosure
property: it would provide a single, consistent standard
for managing both foreclosure and non-foreclosure
properties.
SEC. 303. SPECIAL FORECLOSURE RULES FOR HEALTH CARE
PROPERTIES.
Health care REITs play an important economic role in both
the health care and REIT industries. For example, REITs have
invested about $10 billion in health care properties, either
as owners or lenders. This amount represents approximately
13% of the real estate investment by all REITs. These
properties range from nursing homes and extended care
facilities to acute care facilities.
These REITs face unique problems under the foreclosure
property rules when the lessee/operator of a health care
facility terminates its lease, either through expiration or
default. Unlike most other forms of rental properties, if a
health care property lease terminates, it is extremely
difficult to close the facility because medical services to
patients must be maintained. In fact, a variety of government
regulations mandate measures to protect patients' welfare,
which greatly restrict the ability to simply terminate the
facility. In addition, because of the limited number of
qualified health care providers, it can be very difficult to
find a substitute provider that also will lease the property.
When a health care REIT acquires property either through a
loan foreclosure, lease default, or lease expiration, the
REIT must be able to ensure that the facility will remain
open beyond the initial 90-day period. For many patients,
especially those in rural areas, there may be no available
alternative facilities in the locality. Frequently, if space
is available in an alternative facility, such facility may
not accept government-paid patients (i.e., Medicare, Medicaid
or county assistance), which account for 70% of the residents
in properties of health care REITs. Patients in facilities
owned by health care REITs typically include the frail
elderly, the chronically ill and the disabled who require
long term care. They cannot, and should not, be evicted and
forced to relocate away from supportive family and friends,
which could jeopardize their health and cause treatment
setbacks.
The 90-day time period during which a REIT is permitted to
operate a facility is inadequate for the REIT to conclude a
lease with a health care provider. Health care properties
typically are acquired in a sale-leaseback transaction in
which the original owner continues to operate the facility as
a lessee. After this lessee vacates the property, it is very
difficult to find a qualified health care provider that is
willing to assume not only the operational responsibilities
for the facility, but also the long-term financial risks
associated with being a lessee. This is particularly true
when the original lessee abandoned the facilities because of
financial problems.
Regulatory requirements further complicate and delay the
releasing process. Potential lessees may be required to
obtain up to 30 separate licenses from separate government
agencies before they can assume control of a facility. In
addition, many states impose certificate of need requirements
when facility operators are changed. These proceedings can
become adversarial and protracted.
Therefore, in order to keep a health care facility
operational after the 90-day period has expired under the
foreclosure property rules, a REIT must be able to hire a
licensed health care provider that also qualifies as an
independent contractor (a party from whom the REIT does not
derive or receive any income or profits). The limited pool of
licensed providers that could qualify as independent
contractors may be dramatically reduced, since many of these
providers already lease other health care properties owned by
the REIT. As existing lessees of the REIT, these providers
generate income to the REIT, and thus may be viewed by the
IRS as disqualified from serving as independent contractors
with respect to a second REIT property.
The problems that arise from foreclosing on a defaulted
lease or mortgage also exist in the case of a health care
provider/lessee who abandons the facility upon the expiration
of a lease. A final decision whether or not to renew the
lease may not be made until expiration occurs, giving the
REIT little or no lead time to find a substitute provider/
lessee. Even if adequate notice is given to the REIT that the
provider/lessee intends to quit the business, this notice
does not increase the pool of health care providers that
could qualify as independent contractors.
This bill provides that in the case of qualified health
care properties, a health care provider will not be
disqualified as an independent contractor for purposes of the
foreclosure property rules solely because the REIT receives
rental income from the provider with respect to one or more
other properties. In addition, the bill provides that REIT
could make a foreclosure property election with respect to
lease expirations of qualified health care properties.
[[Page S 14750]]
These changes would help ensure that important health care
facilities are not forced to be closed because of a technical
requirement in the Code. As with any properties that are
subject to a foreclosure election, non-rental income realized
by the REIT under this proposal would be subject to the
highest corporate tax rate.
SEC. 304. PAYMENTS UNDER HEDGING INSTRUMENTS.
In 1988, Congress added section 856(c)(6)(G), which
generally provides that income from an interest rate swap or
cap agreement used to hedge a variable rate indebtedness is
treated as qualifying income under section 856(c)(2). In
addition, such agreement is treated as a security for
purposes of section 856(c)(4)(A), which limits a REIT's gain
on the sale of securities held for less than 1 year to 30% of
gross income.
A swap agreement is a contractual arrangement between
parties that permits them to convert existing variable rate
interest payments or receipts into fixed rates, and vice
versa. Thus, swaps may be used to hedge against potential
increases in interest rates on debt exposures, as well as to
capture higher rates on fixed income streams. Interest rate
caps likewise may be used to hedge interest payments or
receipts, but such hedge is effective only over a specified
range.
There are a number of financial products available, in
addition to swaps and caps, that may be important tools in a
company's effort to hedge its exposure to increased
liabilities and to protect current high returns. As the REIT
industry has grown and become more knowledgeable in managing
its investments, more and more REITs are using financial
instruments of all kinds as a conservative method of managing
their interest rate exposure.
A REIT should be permitted to use the wide variety of
financial instruments that are available for managing its
liability exposures, whether the interest rates are fixed or
variable. Financial markets world-wide have undergone
revolutionary changes over the past decade. These changes
have brought about dramatic liquidity in interest rate and
currency markets, which in turn have significantly increased
the volatility in these markets.
This bill would amend the REIT rules to allow all types of
hedges of REIT liabilities. It would also insure that any
income from a hedge mechanism will be excluded from either
the numerator or denominator of any of the REIT income tests.
This rule would not permit a REIT to speculate in hedging
instruments, nor alter the REIT's primary mission to invest
in real estate assets.
SEC. 305. EXCESS NONCASH INCOME.
Generally, REITs are required to distribute 95% of their
taxable income to shareholders each year. In 1986, Congress
recognized the inequity of requiring a REIT to distribute
``phantom income'' items, in which the REIT recognizes income
but receives no corresponding cash. Congress enacted section
857(a)(1)(B) to exclude certain excess noncash income from
the distribution requirement.
A REIT has been compelled to return property to a seller
rather than accept a cancellation and restructuring of a
seller-financed mortgage, because of the REIT's inability to
distribute the resulting noncash income. Moreover, REITs
often accrue original issue discount (``OID'') income
resulting from their investments. In addition, REITs are
precluded under the current rules from repurchasing bonds at
a discount that were issued at rates that are now ``above
market.'' This inability to refinance adversely affects the
capital requirements for REITs.
Under this bill, all forms of OID and REMIC excess
inclusion income (to the extent not offset by distributions),
and cancellation of indebtedness income would be treated as
excess noncash income for purposes of the distribution
requirement in section 857(a). As a matter of policy, these
forms of noncash income are indistinguishable from the types
that are excepted from the distribution requirement. This
bill would extend the special rules for OID income and REMIC
excess inclusion income to both accrual basis and cash basis
REITs. The bill would not alter the existing rule that
imposes an excise tax on certain undistributed REIT income.
In addition, since the proposal would affect only a REIT's
distribution requirements, a REIT would not receive a
dividends paid deduction with respect to the phantom income.
Thus, a REIT might be compelled to pay a corporate level tax
to the extent its dividends paid deductions is less than
its taxable income. These changes are just a logical
extension of the 1986 changes.
SEC. 306. PROHIBITED TRANSACTION SAFE HARBOR.
A REIT may be subject to a 100% tax on net income from
sales of property in the ordinary course of business
(``prohibited transactions''). In 1986, Congress recognized
the need for a bright line safe harbor for determining
whether a REIT's property sale constituted a prohibited
transaction. Congress further liberalized these rules in 1978
and 1986 to better comport with industry practice and to
simplify a REIT's ability to sell long-term investment
property without fear of being taxed at a 100% rate.
Because of certain limitations contained in the safe
harbor, some of the industry's largest and most successful
members cannot use the exception, thus, their ability to
responsibly manage their property portfolio is impeded. The
most restrictive limitation for these companies is the
limitation on the number of sales per year.
The limitation relating to aggregate tax bases penalizes
the companies that are the least likely to have engaged in
dealer activity. The most successful REITs have typically
held their properties the longest, resulting in low adjusted
bases due to depreciation or amortization deductions. Thus,
the aggregate bases of all the REIT properties will be
relatively much lower for purposes of the safe harbor
exception than a REIT that routinely turns over its
properties every 4 years. Accordingly, the REIT that holds
its properties for the longer term is penalized.
Under this bill, any real property asset disposed of as a
result of an involuntary conversion (e.g., its destruction,
seizure, or condemnation) would not be considered for
purposes of determining compliance with the 7 sales per year
safe harbor. This change would ensure that a diligent REIT is
not removed for the safe harbor as a result of events beyond
its control.
In addition, in order not to penalize companies that hold a
large number of depreciated properties as long-term
investments, this bill would change the alternative aggregate
bases exception to use the adjusted bases of properties
before reduction for any allowed or allowable depreciation or
amortization. This change simply carries out the intent of
the safe harbor.
SEC. 307. SHARED APPRECIATION MORTGAGES.
Section 856(j) generally provides that income recognized by
a REIT from a shorter holding period is substituted for that
of the contract for the purposes of applying the 30%
limitation in section 856(c)(4) and the prohibited
transaction safe harbor rule of section 857(b)(6)(C)(i). The
character of the underlying property as dealer property
(i.e., section 1221(l) property) in its holder's hands also
is substituted for the shared appreciation mortgage (``SAM'')
contract's character for purposes of imposing the prohibited
transaction tax.
Congress enacted section 856(j) in 1986, partly in response
to the REIT industry's request for statutory authority that a
REIT may receive interest based on a borrower's sales profits
under limited circumstances. As a practical matter, a REIT
cannot control the holding period, character or disposition
of property underlying a SAM contract that it does not own.
Attempts to provide contractual controls on these items give
little assurance to a REIT and merely dilute its competitive
position as a lender.
This bill would create a safe harbor that would not
penalize a REIT lender for events beyond its control, for
example, the borrower's bankruptcy. It also would clarify
that shared appreciation mortgages can be based on
appreciation in value as well as gain.
SEC. 308. WHOLLY OWNED SUBSIDIARIES.
In 1986, Congress recognized that for purposes of limiting
liability, investors commonly hold separate parcels of real
estate in separate corporations. Congress therefore enacted
section 856(i), under which a REIT ``qualified subsidiary''
that holds property as a separate corporation is ignored for
federal tax purposes. To be a qualified subsidiary, the REIT
must own 100% of a corporation's stock ``at all times during
the period such corporation was in existence.''
The requirement in the phrase quoted above has presented
some problems not envisioned in 1986. For example, several
real estate operating companies operating as regular C
corporations have elected REIT status since 1991. As is
typical with corporations owning real estate, these electing
companies had subsidiaries that owned various real estate
properties. The IRS was asked whether the existing
subsidiaries could be REIT qualifying subsidiaries because
before the parent's REIT election, the subsidiaries were not
held by a REIT. The IRS has issued several private letter
rulings holding that they can so qualify. However, to reach
this result, the IRS used the artificial construct of deeming
the subsidiaries as being liquidated as of the REIT election
and then reincorporated.\2\ Similar issues arise if a REIT
acquires all of the stock of a non-REIT corporation owning
real estate, either in a taxable or tax-free transaction.
\1\ ``Section'' refers to a section of the Internal Revenue
Code of 1986, as amended (``Code''), unless otherwise
indicated.
\2\ See PLRs 9527020, 9421034, 9307018, 9205030, 9124041 and
9051043. See also PLR 9409035.
There is no sound policy reason why a non-REIT corporation
may not become a qualified subsidiary once a REIT owns all of
its stock. Under section 857(a)(3)(B), all pre-REIT E&P of
the subsidiary should be distributed to the REIT's
shareholders before the end of the REIT's taxable year. In
addition, all of the subsidiary's pre-REIT built-in gain
should be subject to tax under the normal rules of section
337(d).
This bill provides that any corporation could be a
qualified subsidiary if a REIT owns all of its shares,
regardless of the prior ownership of its shares. Again, this
approach is a logical modification of the 1986 change that
should remove an unnecessary barrier to REIT acquisitions.
______
By Mr. LEAHY (for himself, Mr. Jeffords, Mr. Gregg, and Mr.
Smith):
S.J.Res. 38. A joint resolution granting the consent of Congress to
the Vermont-New Hampshire Interstate Public Water Supply Compact; to
the Committee on the Judiciary.
[[Page S 14751]]
VERMONT-NEW HAMPSHIRE INTERSTATE PUBLIC WATER SUPPLY COMPACT
LEGISLATION
Mr. LEAHY. Mr. President, today I am pleased to introduce a
joint resolution with Senators Jeffords, Gregg and Smith to allow the
States of Vermont and New Hampshire to implement an interstate public
water supply compact. Both States have enacted this compact through
their State legislature, and the affected towns are currently awaiting
congressional approval so that they can move forward in their
partnership.
Most members are familiar with compacts since they have become common
tools to address local problems. Like all compacts, this one is a
binding agreement between States established for the purpose of
addressing problems shared by those States. This particular compact
allows Vermont and New Hampshire to construct and maintain joint public
drinking water systems.
According to the compact in this Senate joint resolution, Vermont and
New Hampshire municipalities are granted the authority to apply jointly
for federal financing and raise appropriate revenue for the creation of
drinking water facilities. The agreement also allows for joint
management and maintenance to help cut costs while still meeting
minimum health standards for drinking water. While public water
projects will be carried out according to eight common guidelines
stipulated in the joint resolution, this joint resolution does not
create a new governmental authority and does not supersede any existing
laws or agreements of member states. Finally, the States of Vermont and
New Hampshire initiated and drafted this compact cooperatively and
enactment was pursued voluntarily by each legislature.
This compact carries on a tradition of cooperative efforts to meet
interstate objectives between Vermont and New Hampshire. These two
States currently implement the New Hampshire-Vermont interstate sewage
and waste disposal facilities compact. In addition, both States are
members of the broader New England interstate water pollution control
compact and the Connecticut River Valley Flood control compact. On a
national level, literally dozens of compacts have been considered and
approved by Congress to address water issues. The Vermont-New Hampshire
Public Water Supply compact reflects the principles of previous
compacts which have effectively addressed interstate concerns.
We are introducing this bill today in order to satisfy article 1,
section 10 of the U.S. Constitution. Article 1, section 10 mandates
that ``No state shall without the consent of Congress enter into
agreement or compact with another state or with a foreign power.'' The
courts have established two reasons for Congressional consent. One is
to prevent undue injury to the interest of noncompacting states, the
other is to protect the Constitutional interests of the federal
government against interference from the states. I believe that this
compact serves the interests of the two member states well, does not
affect other states, and protects the constitutional interests of the
federal government. It is in this spirit that I introduce this joint
resolution for the consideration and approval by the U.S.
Senate.
____________________