5EPA
x
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9834.\3,-//A
TITLE: Potentially Responsible Party Search
Manual
APPROVAL DATE: 8/2J/87
EFFECTIVE DATE: B/27/87
ORIGINATING OFFICE: OWPE/NEIC
Q FINAL
D DRAFT
LEVEL OF DRAFT
D A Signed by AA or DAA
Q 8 Signed by Office Director
DC Review & Comment
REFERENCE (otter documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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SERA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
1. Directive Number
9834.6 ,
2. Originator Information
Name of Contact Person
Donna Lee Gerst
Mail Code
WH-527
Office
OWPE
3. Title
Potentially Responsible Party Search Manual
4. Summary of Directive (include bnef statement of purpose)
The document explains the purpose of a potentially responsible party search,
the reporting requirements of the search, and the mechanics of the tasks that are
available to the researcher conducting the search. It also describes what is
minimally acceptable for the purposes of SCAP and the CEAT audits.
5. Keywords
PRP search, basic PRP search, specialized tasks,
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes What directive (number, tftte)
OSWER 9834.3
7. Draft Level
A - Signed by AA/DAA
8 -- Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
v
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
oy^^WjL. /X^xXjei s~rr^
10. Name and Title of Approving Official
Date
sfa/*?
Date
EPA Form 1315-17 (Rev. S-87) Previous editions are obsolete.
OSWER OSWER OSWER C
VE DIRECTIVE DIRECTIVE DIRECTIVE
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
r/ WASHINGTON, D.C. 20460
/
ALJ6 27 ISST
OFFICE OF
SOLID WASTE AND EMERGENCY RESPO^
OSWER Directive 9834.6
MEMORANDUM
SUBJECT: Potentially Responsible Party Search Manual
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
TO: Waste Management Division Directors
Regions I-X
Attached is the final Potentially Responsible Party Search
Manual. This guidance was developed by the Office of Waste
Programs Enforcement in cooperation with NEIC and the Regions,
with input from contractors involved in the PRP search process.
It reflects changes in the process as a result of the passage of
SARA, and details the methodology used in the search process.
Workshops have been scheduled for most Regions to educate
staff, contractors and the states on the new guidance and procedures,
If you have any questions relating to this guidance, or the
workshops, contact Donna Gerst (FTS-475-7027) of the Office of
Waste Programs Enforcement.
Attachment
cc: Regional Counsels, Regions I-X
Henry Longest, OERR
Steve Leifer, OECM
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SEP 17 1987
MEMORANDUM
SUBJECT: New Directive for the OSWER Directives System
OFFICE OF
SOLID WASTE AND EMERGENCY RESPON:
FROM: Sharon Foote T-f^i /-A
Program Analyst
TO: Regional Directives Coordinators
The purpose of this memorandum is to transmit One (1) OSWER
Directives System document.
The new entry included in this report is:
9834.6 Potentially Responsible Party Search Manual
If there are any questions or suggestions, please call me at
382-4510.
Attachment
cc: Mary Escaville
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OSWER Directive 9834.6
POTENTIALLY RESPONSIBLE PARTY SEARCH MANUAL
FINAL REPORT
Prepared for
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Waste Programs Enforcement
Washington, D.C. 20460
Work Assignment No.
EPA Region
Site No.
Date Prepared
Contract No.
PRC No.
Prepared By
Telephone No.
EPA Primary Contact
Telephone No.
342
HQ
Not Applicable
August, 1987
68-01-7037
15-3420-00
PRC Environmental
Management, Inc.
(Laurie Redeker)
312/938-0300
Donna Gerst
202/382-4819
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PREFACE
Please be advised that this manual was drafted in May 1987. This manual
constitutes guidance only and should not be construed as creating substantive rights
or affecting the rights or liabilities of any party.
ACKNOWLEDGEMENT
This manual was developed by the Office of Waste Programs Enforcement and the
National Enforcement Investigation Center. Contributions were made by the
following firms:
PRC Environmental Management, Inc.
TechLaw, Inc.
Versar, Inc.
Alliance Technologies Corporation
Jacobs Engineering Group, Inc.
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PRP SEARCH MANUAL UPDATE FORM
If you would like to be included on the mailing update list, please fill out the
information below and return it to:
PRP Search Manual Update
Office of Waste Programs Enforcement
EPA Headquarters WH-527
401 M Street, S.W.
Washington, D.C. 20460
Attention: Donna Gerst
Please include me on the PRP Search Manual Update mailing list.
Name:
Company/Off ice:
Mail Code:
Address:
11
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TABLE OF CONTENTS
Section
Page
PREFACE
ACKNOWLEDGEMENT
PRP SEARCH MANUAL UPDATE FORM
i
i
ii
1.0 INTRODUCTION 1
2.0 BACKGROUND 1
2.1 DEFINITION OF PRP 1
2.2 WHY A PRP SEARCH IS NEEDED 2
2.3 WHEN TO DO A PRP SEARCH 3
2.4 COMPLETION OF A PRP SEARCH 5
3.0 METHODOLOGY 6
3.1 TASKS GENERALLY PERFORMED IN ALL PRP SEARCHES . ... 11
3. .1 Agency Record Collection and File Review 11
3. .2 CERCLA 104(e) Letters/RCRA 3007 Letters 17
3. .3 Financial Status 20
3. .4 History of Operations at the Site 24
3. .5 Interviews with Government Officials 28
3. .6 PRP Name and Address Updates 32
3. .7 PRP Status/PRP History 34
3. .8 Records Compilation 38
3. .9 Report Preparation 41
3. .10 Title Search 45
3.2 TASKS PERFORMED TO FURTHER CHARACTERIZE
SITE-SPECIFIC PRP ASSOCIATION 51
OBTAINING SPECIALIZED INFORMATION
3.2.1 Aerial Photographs 53
3.2.2 CERCLA Subpoena Authority 56
3.2.3 Field Survey 57
3.2.4 PRP File Review 60
3.2.5 Private Citizen/PRP Interviews 63
3.2.6 Private Investigations 68
3.2.7 Site Enforcement Tracking Systems 71
3.2.8 Site Sampling 72
PERFORMING WASTE STREAM COMPARISONS
3.2.9 Industrial Survey 75
3.2.10 Process Chemistry Analysis 77
3.2.11 Waste Stream Inventory 79
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Section
TABLE OF CONTENTS (Continued)
Page
CREATING DATABASES
3.2.12 Correspondence Tracking Databases
3.2.13 Inventory Databases
3.2.14 Transactional Databases
81
83
86
PERFORMING OTHER TASKS
3.2.15 Compliance History .
3.2.16 Financial Assessment
3.2.17 Generator Ranking .
3.2.18 Property Appraisal .
91
93
96
98
Appendices
A Glossary and Acronyms
B Activities Checklist
C EPA/NEIC Information Services
D Key Information Source Index
E Information Collection Forms
F Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA)
G Guidance and Policy Memoranda
H List of Contacts
I Sample Reports
LIST OF FIGURES
Figure
1 Superfund Site Remediation Process
Pag?
. . 4
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1.0 INTRODUCTION
The purpose of this manual is to provide guidance to EPA personnel and
contractors in conducting potentially responsible party (PRP) searches. The manual
was written to address the needs of three groups:
(1) EPA and state personnel and contractors assigned to conduct PRP
searches;
(2) EPA and state project managers who are responsible for directing and
reviewing contractor efforts; and
(3) EPA and state enforcement personnel using the manual as a reference in
order to fully incorporate a PRP investigation into an enforcement
strategy.
The manual is composed of two parts: background and methodology. The
background section defines a PRP and discusses the role of PRP searches under
CERCLA (42 USC 9601), while the methodology section provides detailed descriptions
of different tasks performed in PRP searches. The tasks are arranged alphabetically
within each subsection, not in the order they are generally performed during a
search. The general order is discussed under "Methodology," on page 7. The
appendices include sample PRP search reports as well as information sources,
relevant policy and guidance documents, an activities checklist, and a glossary for
easy reference. The sample reports can be used as guides for standard format, and
they are examples of the type of information that should be included in PRP
reports. Terms included in the glossary are presented in boldface type throughout
this manual. The glossary and list of acronyms are in Appendix A.
2.0 BACKGROUND
2.1 DEFINITION OF PRP
EPA generally regards owners, operators, generators, and transporters as PRPs.
More specifically, Section 107(a) of CERCLA indicates that a PRP may be:
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance
owned or operated any facility at which such hazardous substances
were disposed of,
1
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(3) any person who by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for transport
for disposal or treatment, of hazardous substances owned or
possessed by such person, by any other party or entity, at any
facility or incineration vessel owned or operated by another party or
entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for
transport to disposal or treatment facilities, incineration vessels or
sites selected by such person, from which there is a release, or a
threatened release which causes the incurrence of response costs, of
a hazardous substance . .
A "person" is defined in CERCLA Section 101(21) as "an individual, firm,
corporation, association, partnership, consortium, joint venture, commercial entity,
United States Government, State, municipality, commission, political subdivision of a
State, or any interstate body."
An "owner or operator" as defined by CERCLA Section 101(20)(A) is:
(i) in the case of a vessel, any person owning., operating, or
chartering by demise, such vessel,
(ii) in the case of an onshore facility or an offshore facility, any
person owning or operating such facility, and
(iii) in the case of any facility, title or control of which was
conveyed due to bankruptcy, foreclosure, tax delinquency,
abandonment, or similar means to a unit of State or local
government, any person who owned, or otherwise controlled
activities at such facility immediately beforehand.
For further elaboration, refer to CERCLA Section 101(20)(B-C) and Section
107(a) located in Appendix F.
2.2 WHY A PRP SEARCH IS NEEDED
The identification of PRPs is an integral component in the resolution of a
hazardous substance release. From the notification of a release through the
remedial action, identification of and communication with the PRPs are essential in
determining the strategy for a cleanup. Early identification supports EPA policy to
secure cleanup by PRPs in lieu of Superfund use, where such cleanup can be
accomplished in a timely and effective manner (see Timely Initiation of Responsible
Party Searches, Issuance of Notice Letters, and Release of Information, Appendix G).
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In instances where Superfund is used to finance a cleanup, the PRPs must be
identified for cost recovery actions.
2.3 WHEN TO DO A PRP SEARCH
Current EPA policy and the Superfund Amendments and Reauthorization Act
(SARA) encourage beginning a PRP search early in the Superfund cleanup process
(Figure 1). The initiation of a PRP search should be concurrent with the initiation
of the National Priorities List (NPL) listing process (during the expanded site
investigation). In most cases, as PRPs are identified, EPA expects to issue general
notice letters. In addition, in the majority of cases, special notice procedures will
be initiated for the remedial investigation/feasibility study (RI/FS) and for remedial
design/remedial action (RD/RA), and information exchange as set forth in the
"Interim Guidance on Notice Letters, Negotiations, and Information Exchange" (see
Appendix G). Figure 1 shows why the PRP search is an essential, early step in
the enforcement process and the importance of early PRP identification. Completion
should take place at the time of NPL proposed listing and well before any projected
obligation for an RI/FS.
At the time of site discovery, a preliminary search is conducted to identify
obvious PRPs. This step is essential, especially at removal sites where immediate
action is indicated, to determine if PRPs are available to finance the cleanup. A
PRP search at this stage is performed within a limited timeframe. Where response
actions must precede completion of the PRP search, the search should be performed
to support cost recovery or future response actions.
The extent of a PRP search depends on several factors including NPL or non-
NPL status, site complexity (single landowner, landfill, abandoned drums, etc.), and
the amount of funds expended at the site. A baseline PRP search is initiated at the
time a site is submitted to EPA's Office of Emergency and Remedial Response for
inclusion on the NPL. This baseline search includes the first 10 tasks described in
Section 3.1 of this manual, but may also include more specialized tasks as deemed
necessary by the remedial project manager and as dictated by the complexity of the
site. As a site cleanup progresses, further tasks may be initiated to aid in
identifying all PRPs at a site, as well as their financial status and other pertinent
data. A site is submitted for inclusion on the NPL based on its hazard ranking
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FIGURE 1
SUPERFUND SITE REMEDIATION PROCESS
Preliminary
PRP Search
General
Notice Letters
Preliminary
PRP Search
Baseline
PRP Search
RI/FS Special
Notice Letters
RI/FS
Negotiation
PRP RI / FS
RD/RA Special
Notice Letters
Record of
Decision
RD/RA
Negotiation
J
Remedial
Design (RD)
Remedial
Action (RA)
Operations and
Maintenance
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system (HRS) score, which is determined during the preliminary assessment/site
investigation (PA/SI) stage of the Superfund process (see Figure 1). An HRS of
28.5 or higher justifies NPL listing.
Throughout the PRP search, it is important that the investigator maintain
ongoing communications with the EPA primary contact, regional counsel, and the
regional civil investigator. Beginning in 1987, one civil investigator will be located
in EPA headquarters and will be responsible for effective implementation of an
overall national investigation strategy for conducting PRP searches. In addition,
one civil investigator will be located in each region to ensure regional consistency
and quality among PRP searches, develop a regional plan for conducting PRP
searches, and aid the headquarters investigator in implementing the national
strategy.
In summary, the PRP search, as a key component of the cleanup, should be
initiated as early as possible in the site strategy development. The extent of the
search depends on the stage of development, NPL or non-NPL status, and the
complexity of the site.
2.4 COMPLETION OF A PRP SEARCH
The primary efforts of a PRP search are directed at identifying all PRPs at a
site. This investigation may require a considerable expenditure of resources, and,
while in most cases it should be substantially completed several months before the
RI/FS starts, it may extend over the entire remedial process. For EPA reporting
purposes, a definition of a completed PRP search has been developed based on the
Superfund Comprehensive Accomplishments Plan (SCAP) definition. The information
required to meet the SCAP target of a completed PRP search may be developed
from the conduct of the ten basic tasks. In most multi-party cases, specialized
tasks will also be utilized to provide adequate information for the baseline report.
The PRP search effort should include, or yield, the following information at a
minimum:
o A review and compilation of agency and state records
o A title search
o Interviews with government officials
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o A history of operations at the site
o Identification of owner/operators
o Identification of generators and transporters
o Any quantitative waste information developed for each identified
PRP and a preliminary volumetric ranking
o Financial status of identified parties
o PRP status and history
o PRP name and address update
o Issuance of information request letters
o Comprehensive report documenting findings
These components are essential to support an enforcement strategy at
Superfund sites.
3.0 METHODOLOGY
This chapter describes 28 tasks that may be completed during a PRP search.
Rarely, if ever, would all 28 tasks be used to obtain the information required for a
PRP search. EPA anticipates that the researcher will select a combination of those
tasks that effectively produce the necessary information. A clear understanding of
the type and detail of information required for each search will allow the
researcher to select the appropriate tasks. If a contractor is conducting the
research, the contractor and EPA personnel should discuss the progress of the
selected tasks during the search so that appropriate follow-up tasks can be
completed.
Before any tasks are started during a specific PRP search, the researcher must
clearly understand the objective of the search. This understanding will help the
researcher obtain the necessary information in an orderly manner. If a contractor
is conducting the research, early and continuous communication with EPA personnel
involved with the site is required. The researcher must be aware of (1) the type of
case, such as a landfill with many PRPs, or a manufacturing facility with a small
number of PRPs; (2) the types of PRPs possibly involved with the site (owners,
operators, generators, transporters); (3) EPA's specific needs to support case
development, such as identifying only corporate PRPs; (4) information already
available so as not to repeat previous efforts; and (5) EPA's anticipated action.
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Ten of the 28 tasks presented in this manual are those generally performed in
all PRP searches. These tasks are presented in alphabetical order in Section 3.1.
Of these 10 basic tasks, 4 are used to collect information: government agency
record collection and file reviews, title searches, interviews with public officials,
and CERCLA 104(e)/RCRA 3007 letters. In most cases, these four tasks can be
conducted simultaneously.
The remaining six tasks in Section 3.1 are records compilation, history of
operations at the site, PRP status/PRP history, PRP name and address update,
financial status, and report preparation. Records compilation is completed after the
government files are located. This task organizes the files into a useful and easily
accessible source of information. After obtaining information about the site, the
researcher develops a site history and a list of PRPs. Once a list of PRPs is
formulated, additional information is obtained on each PRP. This information
includes current name, address, and financial status. After PRPs are identified, EPA
can request site-specific information and documents from the PRPs using CERCLA
104(e) or RCRA 3007 letters. Once the information is collected, a report presenting
the information is completed.
The other 18 tasks, presented in Section 3.2, are specialized tasks that may be
useful in some searches, but not in others. These tasks are used to further
characterize the relationship between PRPs and the site. This section of the
manual can serve as a checklist of tasks the researcher can choose from as needed,
depending on the situation. If the researcher knows at the beginning of the search
that some of these tasks may be useful in identifying PRPs, those tasks may be
completed concurrently with the 10 tasks listed in Section 3.1. In other situations,
it may be useful to complete the initial 10 tasks, review the findings, and determine
whether additional research is necessary. It should be noted that of the 18
specialized tasks, the PRP file review and private citizen/PRP interview tasks have
traditionally been conducted most frequently.
The 18 specialized tasks are categorized into four subsections: (1) obtaining
specialized information, (2) performing waste stream comparisons, (3) creating
databases, and (4) performing other tasks.
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The subsection on obtaining specialized information (Sections 3.2.1 to 3.2.8)
includes eight tasks that may provide more information about a site and its PRPs.
These eight tasks are listed alphabetically within the subsection.
The subsection on performing waste stream comparisons (Sections 3.2.9 to
3.2.11) includes three tasks. Two of the tasks, industrial survey and waste stream
inventory, usually must be completed before the third task, process chemistry
analysis, can be completed.
Three tasks are listed in the subsection on creating databases (Sections 3.2.12
to 3.2.14). These tasks allow large amounts of data, such as types and quantities of
waste, or key document information, to be managed more efficiently. These tasks
are also listed alphabetically.
Four tasks not directly related to PRP identification but often included in PRP
searches are listed alphabetically in the subsection on performing other tasks
(Sections 3.2.15 to 3.2.18). These tasks are compliance history, financial assessment,
generator ranking, and property appraisal. Generator ranking, including type and
amount of waste (Section 3.2.17) is particularly useful in satisfying the special
notice provisions of CERCLA Section 122(e)(l).
Each task description listed in this chapter is divided into three parts:
objective, procedures, and problems/resolutions. The objective states what the task
should accomplish, while the procedures explain how a task is completed. For some
tasks, the procedures are divided into two parts: initial information needs and
process. Initial information needs lists background information that is required to
begin the task. Process presents the steps to be taken to complete the task.
Finally, problems/resolutions presents common problems and solutions to those
problems. The information is presented in a concise, easy-to-read format that the
researcher may use as a checklist to indicate which steps and tasks have been
completed.
Nine appendices have been included to assist the PRP researcher. These
appendices are listed below.
Appendix A, Glossary and Acronyms defines many of the terms used in the
manual.
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Appendix B, Activities Checklist ~ presents each task listed in this chapter
along with a level-of-effort estimate and selection criteria. This checklist
serves as a menu of the possible activities that can be selected during a
search.
Appendix C, EPA/NEIC Information Services explains the relevant
information NEIC can provide to EPA Superfund personnel.
Appendix D, Key Information Source Index -- lists document sources and
document types that are useful in obtaining information. Sources are provided
for each task discussed in this chapter. Additional examples of documents are
provided in Potentially Responsible Party Search Workshop Outline/Exhibits.
National Enforcement Investigations Center, May 6, 1986.
Appendix E, Information Collection Forms -- provides sample forms used to
conduct interviews and industrial surveys. These forms must be altered to fit
site-specific needs.
Appendix F, Comprehensive Environmental Response, Compensation, and
Liability Act - is a copy of CERCLA as amended by the Superfund
Amendments and Reauthorization Act (SARA) of 1986.
Appendix G, Guidance and Policy Memoranda -- contains copies of several
memoranda issued by EPA, many of which are being revised under SARA.
These memoranda provide guidance for various PRP search issues. New and
revised guidances relating to PRP searches will be included as they become
available.
Appendix H, List of Contacts -- provides names, addresses, and telephone
numbers of federal and state agencies that may be contacted to obtain site-
specific information.
Appendix I, Sample Reports -- provides several sample work products. None of
the reports are presented in their entirety; only highlights are presented.
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3.1.1 AGENCY RECORD COLLECTION AND FILE REVIEW
OBJECTIVE
The objective of this task is to locate and obtain copies of all governmental records
pertinent to the site and relevant to the PRP search. Relevant records could include
correspondence, hazardous waste manifests, technical data and reports, permits,
complaints, investigations, site owner records, fire department chemical reports, litigation
files, and bankruptcy files. These initial records provide important information the
researcher uses to become familiar with the site, identify PRPs, and determine additional
possible contacts. This task can be completed while conducting the title search (Section
3.1.10) and interviews (Section 3.1.5). Examples 1 and 2 in Appendix I, Sample Reports,
discuss file reviews. Procedures for reviewing PRP files, not government files, are
discussed in Section 3.2.4.
PROCEDURES
Initial Information
Needs
o Location of
Records
o Information
Needs
o Authorization to
Contact Other
Agencies
The first step in collecting and reviewing site
records is to locate the appropriate records. If a
contractor is conducting the search, discuss
information needs with the EPA primary contact.
Identify any areas for which the agency would like
additional or unique information. In addition, obtain
authorization to contact other agencies you might
identify. Discuss sources of site records with the
EPA primary contact focusing on:
o Site background.
o EPA records held by specific divisions or
program offices:
Air
Water
RCRA
CERCLA
Hazardous Site Control Division
(remedial program)
Emergency Response Division (removal
program)
CERCLA Enforcement Division
Regional Counsel
Other program offices
11
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Process (Record
Collection)
o Contact Agency
with Documents
o Identify
Document Type
and Quantity
o Copy Documents
o Obtain Leads on
Other Document
Sources
o State and local agencies that have records.
See Appendix D for examples of
information sources, such as local
attorney's office and the local department
of public works. See Appendix H for a
list of state agencies.
o State and local government officials and
private individuals to contact for
interviews and record collection, such as
previous site managers and compliance and
permit personnel.
o Type of information required. Depending
on the type of information required by
EPA, both administrative and technical
documents may need to be located and
reviewed.
Using the information described above, compile a
preliminary list of agencies, divisions, officials, and
private individuals to contact for site records.
Discussions should be held with the EPA primary
contact to determine who will initially contact the
other agencies and how to approach newly identified
sources.
With the above needs in mind, contact each known
agency by phone and:
o Identify yourself and your organization,
and clearly explain your role in the EPA
investigation. Give the name and
telephone number of the EPA primary
contact.
o Explain the scope of the document request
relevant to:
Site operational history
Identification, of owners, operators,
generators, and transporters
Other information needs consistent
with EPA strategy
o Identify all records, correspondence, or
other files and the approximate quantity
(such as number of file drawers).
o Ask each agency to identify its divisions,
such as:
Air
12
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Water
RCRA
CERCLA
Engineering
Ask each agency whether it can identify
other agencies, including regional and
district offices, that might have additional
records on the site. See Appendix D for
examples of additional information sources.
These might include:
Health department
Environmental department/office
Transportation department
Police department
Fire department
Public works department
State Attorney General
Chamber of Commerce
As appropriate, contact the EPA Regional
Counsel to determine other kinds of
information important to identifying PRPs
and linking PRPs to the site. If a
contractor is conducting the search,
determine with the EPA primary contact if
the contractor should contact the Regional
Counsel directly or go through the EPA
primary contact.
Request a copy of a manufacturer's
directory for the local area from a local
source. This may aid in identifying PRPs
(also see Section 3.1.7).
Inquire as to whether records may be
contaminated (see Problems/Resolutions).
Arrange to obtain a copy of the records.
If the agency is to copy the records,
identify:
Number of pages to be copied
Cost of the photocopying
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Length of time needed to copy the
records
o If the contractor will do the copying,
identify:
Numb.er of pages to be copied
Time required to review and copy the
records
Agency policy on the use of in-house
copiers
Agency policy on employing
temporary help to assist with copying
Agency policy on removing documents
from the office for commercial
copying
o If the files are to be physically removed
from an agency's files, EPA or its
contractor should provide a receipt to that
agency describing the records (type and
approximate volume).
o Review the documents to determine which
to copy. Examples of the types of records
that are useful for PRP searches are given
in Appendix D. Primarily, the researcher
is looking for any document that:
Identifies PRPs
Is evidence that a PRP was involved
with a site
Lists types and quantities of waste
disposed of at the site
Explains the operations or methods of
disposal at the site
Identifies other persons or agencies
that may have knowledge of site
activities
After determining which documents are relevant
based on the criteria described above, copy those
documents. EPA and its contractors should use
standard chain-of-custody procedures when obtaining
possession of another agency's files. This will
prevent tampering or allegations of tampering with
the documents.
14
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Process (File Review)
o Arrange
Documents
o Number
Documents
o Review and
Record
Information
PROBLEMS/RESOLUTIONS
After the documents have been obtained, they must
be organized and reviewed. The process is
straightforward but involves a number of steps.
o Arrange the documents either by
chronological order, source, document type
(such as permits or analytical results), or
by other appropriate methods.
o Number the documents for reference
purposes.
o Review and record the contents of each
document based on the criteria described
on the previous page as it pertains to:
Relevancy
Site history
PRPs identified
Waste types and amounts
Contacts identified
Contradictions with other documents
reviewed
The volume of records identified is very
large.
If a contractor is conducting the
search, the contractor travels to the
agency, identifies relevant records,
and makes copies of the relevant
records.
The volume of relevant records identified
is too large to be readily copied.
Copy records at the agency with the
help of a rental copier or temporary
help.
Send records to a local company for
copying, with contractor staff
supervision.
Microfilm documents and produce
hard copies from the microfilm.
15
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The records are determined to be business
confidential.
The contractor consults with EPA to
determine whether it is necessary to
review these records.
The contractor obtains confidential
business information (CBI) clearance
from EPA and accesses the records.
Records are encountered that may be
contaminated with toxic or hazardous
materials.
The contractor consults EPA to
determine the probable degree of
contamination, whether the documents
should be tested, and possible
methods to obtain clean copies.
The contractor develops a safety plan
approved by EPA before initiating
work with contaminated records.
The contractor is refused access to
records or other sources of information.
Provide the party refusing access
with the name and telephone number
of the EPA primary contact, or
contact EPA to obtain a letter of
introduction or to make the initial
contact.
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3.1.2 CERCLA 104(e) LETTERS/RCRA 3007 LETTERS
OBJECTIVE
The objective of this task is to formally request information from persons about
hazardous waste management practices at the site. Under Section 104(e)(2) of CERCLA
as amended by SARA, "Any officer, employee, or representative [of the President] . . .
may require any person who has or may have information relevant to any of the
following to furnish, upon reasonable notice, information or documents relating to such
matter:
"(A) The identification, nature, and quantity of materials which have been or are
generated, treated, stored, or disposed of at vessel or facility or transported
to a vessel or facility;
"(B) The nature or extent of a release or threatened release of a hazardous
substance or pollutant or contaminant at or from a vessel or facility;
"(C) Information relating to the ability of a person to pay for or to perform a
cleanup."
RCRA Section 3007(a) provides that "For purposes of developing or assisting in the
development of any regulation or enforcing the provisions of this title, any person who
generates, stores, treats, transports, disposes of, or otherwise handles or has handled
hazardous wastes shall, upon request . . . furnish information relating to such wastes and
permit such person at all reasonable times to have access to, and to copy all records
relating to such wastes."
Information commonly requested includes that concerning operations, chemical usage,
chemical storage, waste generation, waste disposal, and so on. Often documentation
provided by the PRP may include hazardous waste manifests, site maps, purchase orders,
weight tickets, technical data, technical reports, and permits. This documentation is
screened for relevant, site-related information. It may also identify other parties,
including PRPs, who may be contacted for additional information.
PROCEDURE
Initial Information
Needs
o Background
Information
Process
Identify Names
and Addresses
Determine
Questions
Prepare Letters
Obtain basic site information, such as years of
operation and waste types, to formulate questions for
the CERCLA 104(e)/RCRA 3007 letters.
o Identify parties who may have information
about the site from the following
sources:
PRPs
Customer lists
Industrial surveys
Other
17
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o Obtain current names and addresses. See
Section 3.1.6 for procedures used to update
names and addresses.
o Define the information needed from the
identified parties.
o Contractors should coordinate with the
EPA primary contact and Regional Counsel
to formulate specific questions.
o Prepare the 104(e)/3007 letters.
o Assist EPA in preparing the mailing list.
o Send letters by certified mail -- return
receipt requested.
o Immediately send the first round of letters
to owners and operators. Then send
letters to all identified generators and
transporters.
o Review and summarize responses to gain
additional site-related information.
Quantifying the information may require
computer assistance (see Sections 3.2.12
through 3.2.14, Creating Databases).
PROBLEMS/RESOLUTIONS
Parties do not respond to letters.
Obtain updated names and addresses
and resubmit the letter (this is also
the procedure for returned letters).
Ensure that EPA has a receipt
verifying that the letter was
received.
After verifying that the letter was
received, EPA should issue a warning
letter.
EPA can issue an administrative order
requiring compliance and can take
civil action for appropriate relief.
EPA may use CERCLA subpoena
authority (see Section 3.2.2).
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Upon review of the responses, additional
questions arise.
Send a second 104(e)/3007 letter to
the PRPs. If a contractor is sending
the letters, obtain EPA approval
before preparing additional letters
(EPA signs and issues these letters,
not the contractor).
Responses are voluminous.
The contractor can assist EPA by
developing computerized databases
(see Section 3.2.12). Examples of
software used for this purpose are
dBASE III and LOTUS 1-2-3. The
database can be used to characterize
the status of the response by
indicating information such as who
received letters, who responded, and
who provided complete responses.
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3.1.3 FINANCIAL STATUS
OBJECTIVE
The objective of this task is to obtain some indication of a company's or individual's
ability to pay for remedial action. The completeness of the financial information depends
on the amount of public information available. Examples 1, 5, and 6 in Appendix I,
Sample Reports, present financial status findings obtained during PRP searches.
PROCEDURE
Initial Information
Needs
o Names of PRPs
to Investigate
o Type and Detail
of Information
Needed
o Background
Information
Before beginning any research on PRP financial
status, the researcher should determine the agency's
information needs and requirements, focusing on:
o Which identified PRPs to investigate
regarding their financial status and their
addresses if available.
o The type and detail of financial
information required.
o Any background information already
available on the PRP. For a company, this
could include the date and state of
incorporation; for an individual, this could
include their date of birth and social
security number.
Process
Obtain Address
Information for
Identified PRPs
Request an NEIC
Search
As Necessary,
Conduct
Financial
Research
Directly
After determining the nature and extent of the
research required, the researcher should begin
gathering financial information. The researcher
should complete the steps listed below.
o Perform initial research on corporate
status, which includes obtaining a
headquarters or local address for the
company.
o If research is being conducted by a
contractor, provide EPA with a company
name and address for each PRP and
request that an NEIC search be initiated,
with the results forwarded to the
appropriate regional contact (for publicly
held companies only). The regional
contact can then forward the information
to the contractor. NEIC has access to the
following sources:
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The Superfund Financial Assessment
System (SFFAS) (usually for publicly
held companies); NEIC will prepare an
SFFAS report for the parent
company, if any.
Dun & Bradstreet (privately and
publicly held companies); Dun &
Bradstreet, unlike SFFAS, can be
accessed by the contractor as well as
NEIC to obtain:
Credit information
Information on sales, current
assets, and current
liabilities
Company history
Names of subsidiaries
Addresses of company plants and
headquarters
Names of company
officers/directors
Holdings and affiliations of
company officers/directors
Review the NEIC results and incorporate
relevant information into the report.
If parent companies or subsidiaries are
identified, determine if corporate status
research is required on these companies.
Begin the research effort if NEIC is
unsuccessful in providing corporate
information or if the researcher is to
determine the financial status directly.
This effort may involve:
Performing full corporate status
research (see Section 3.1.7)
Identifying all company locations
within the U.S.
Interviewing knowledgeable
individuals (see Section 3.2.5)
Checking local tax assessors' offices
for:
Business holdings (past and
present)
Real and personal property
holdings (past and present)
Assessed value of holdings
Taxes paid on holdings
21
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Listings of tax returns filed in
other localities
Checking local sources of information
such as:
Secretary of State
Local courts
Uniform Commercial Code
offices
Registry of Motor Vehicles
Police department
Better Business Bureau
Referring to financial publications
such as:
Dun & Bradstreet
Moody's Industrial Manual
Standard and Poor's
Corporation Descriptions
Identifying, from the title documents,
any mortgages and liens against each
title-holding company or individual
For individuals, checking bankruptcy,
court divorce proceedings, and wills
PROBLEMS/RESOLUTIONS
The assessed value of property obtained
from the local tax assessor may not reflect
full market value. Also, the assessed
value may be too high if the appraisal was
completed before contamination occurred
or was discovered.
Ask for the basis on which the
assessed value was computed and the
date of the last assessment. The
assessed value reported to the
researcher may be old (for example,
property was last assessed in 1978
and never reassessed) or not the full
market value (some jurisdictions do
not levy property taxes on 100
percent of the property value). The
researcher should note assessments
that are not 100 percent of market
value.
Business, personal, and real property may
not be owned free and clear.
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If mortgages, loans, and Hens cannot
be identified, indicate in the report
that the assets may be encumbered
by debt. Be sure to identify the
sources of information that are
available.
Publicly available financial information is
almost non-existent for privately held
corporations, sole proprietorships, or
limited partnerships.
Contractors should consult EPA for
direction on how much effort to
expend on small corpor ;tions or
privately held companies.
Recommend the use of legal devices
(warrants, subpoenas), if possible, to
obtain private financial documents.
Only a small amount of financial informa-
tion can be uncovered by the researcher.
(This occurs more often with private
companies or individuals than with publicly
held companies.)
Dun & Bradstreet's Report is a
potential source of this information.
Local information sources may exist
that the researcher is not aware of.
Consider hiring a local private
investigator who may be familiar with
these sources.
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3.1.4 HISTORY OF OPERATIONS AT THE SITE
OBJECTIVE
The objective of this task is to obtain information concerning activities at the site that
may have resulted in hazardous and/or solid waste spills or disposal. The history of
operations generally begins immediately preceding the first industrial use of the site and
continues to the present. It includes information concerning waste generation and
transportation to the site, waste disposal methods practiced at the site, and a history of
environmental enforcement actions at the site. Examples 1 and 2 in Appendix I, Sample
Reports, include histories of operations.
i
PROCEDURES
Initial Information
Needs
o Type of
Information
Required
o Level of Detail
Needed
o Names of
Interviewees
Before conducting any research, the researcher
should determine the type of information and
level of detail required. If a contractor is
performing the work, the contractor and EPA
should discuss and agree upon this level of
effort. Specifically, the researcher should
determine whether EPA requires:
Technical information
Only PRP-related information
A complete history including information
not related to PRPs, such as security
practices, disposal methods, insurance, and
products produced
Also determine:
Which state and local officials may be
knowledgeable of site activities
Whether to contact PRPs and former
employees
Process
o
Prepare
Questions
o Contact Officials
o Review Files
o Conduct Title
Search and
Interviews
The following process should be performed in
conjunction with appropriate EPA personnel (EPA
primary contact, Regional Counsel).
o While conducting the research, the researcher
should consider the following questions:
What types of wastes were generated?
Where were the wastes generated?
When were the wastes generated?
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If wastes were generated at the site, what
were the waste streams?
How were the wastes disposed of?
Where were the wastes disposed of?
When were the wastes disposed of?
How much of the wastes were disposed of
at the site? When?
What type of security did the site have?
(Condition of fence, guards present, hours
of operation, gate locked?)
What procedures were followed when a
transporter arrived? (Logged in by
anyone? Could anyone enter at anytime?)
What kind of "housekeeping" was practiced
at the site?
Did developers of the property knowingly
move the wastes of concern?
Did any contracts exist between owners,
operators, transporters, and generators?
If so, when did they exist? Were standard
forms used? Are copies available?
Was there a monetary exchange between
the site operator and the generator?
Between the site operator and transporter?
How many employees worked at the site?
At what times? What were their duties?
What are the names and last known
addresses of the employees?
Are there any disgruntled employees?
Are any other individuals (neighbors,
former employees) knowledgeable of the
site?
Did the site operator own the site?
(Confirm answer with title search results.
See Section 3.1.10)
Did the site owner have any liability
insurance?
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Were any state or local agencies
involved with overseeing site
, operations? If so, what are the
names of the agencies and officials
who performed this role?
What is the relationship between
federal, state, and local agencies with
regard to this site? If a relationship
exists, what is its nature? Coopera-
tive?
Contact knowledgeable officials (see
Section 3.1.5) to obtain:
Information regarding site operations
Leads to additional knowledgeable
individuals
Review EPA, state, local, and site (if
allowed) files for:
CERCLA 104(e) responses (see Section
3.1.2)
Leases on site property (see Section
3.1.10)
Inspection reports
Waste disposal permits
Correspondence involving the site
operator
Manifests
Weight tickets
Dumping tickets
Lists of employees
Lists of customers and their
addresses
Leads to other knowledgeable
individuals
Responses to interrogatories in state
or federal lawsuits
Lists of transporters and their
addresses
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Conduct a title search (see Section 3.1.10)
to identify leases on the site property.
Interview PRPs, especially transporters and
former employees (see Section 3.2.5) who:
May provide first-hand information
regarding the site
May be able to identify generators
when records are inadequate
May have leads to additional
knowledgeable individuals
Incorporate the history of operations at
the site into the site history section of
the draft report (see Section 3.1.4).
PROBLEMS/RESOLUTIONS
The documents contain unclear or
conflicting information about the site
history.
Contact the authors of the documents
to verify the information.
Contact other individuals who may be
able to clarify the information.
State in the report that the
information is unclear and describe
how the investigator attempted to
verify the information.
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3.1.5 INTERVIEWS WITH GOVERNMENT OFFICIALS
OBJECTIVE
The objective of this task is to (1) develop additional information on site operations, site
history, and PRPs, and (2) to identify government agencies or private parties that may
possess relevant documents or information. This can be a very productive research
avenue because government officials, especially state or local officials, often work
directly with hazardous waste sites and have more intimate knowledge of the sites. The
interviews may reveal valuable personal recollections not recorded in documents. Sample
PRP search reports that included interviews are presented in Appendix I, Examples 1 and
2. Example 9 presents a method of including interview summaries in a report. These
examples also show the types of information the researcher may collect during interviews.
PROCEDURES
Initial Information
Needs
o Background
Information
o Names of
Government
Officials
Process
Contact
Government
Officials
Discuss the
Purpose of the
Interview
Conduct the
Interview
Before conducting interviews, the researcher will
need to:
o Review EPA background information on the
site.
o Obtain the names of state or local
government agencies and officials involved
with the site.
o Generate a list of site-specific questions.
This list will need to be modified for
different interviewees depending on their
relationship with the site. The type of
information to obtain is listed below and
in Section 3.1.4. A sample interview form
is provided in Appendix E.
In conducting interviews, the contractor should
follow the procedure outlined below.
o Contact all initially identified government
officials by telephone (or by letter or in
person, if necessary).
o If a contractor is conducting the
interview, identify yourself as an EPA
contractor conducting background research
on the site.
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Ask the government official about:
The availability of relevant documents
in the government official's files, and
whether copies can be obtained
Activities on the site before, during,
and after the site's suspected use for
waste disposal
PRPs associated with the site
Site enforcement history
Administrative or legal actions
involving the site and the PRPs and
the location of relevant documents;
administrative or legal actions include
those such as:
Lawsuits
License or permit violations
Cleanup orders
Relevant state or local regulatory
requirements and the location of
relevant documents including:
Hauler licenses
Landfill permits
Business licenses
Building permits
Zoning ordinances
Newspaper articles concerning the
site
Other possibly knowledgeable people,
organizations, or local sources to
contact such as:
Other current or former
government officials and
agencies
Current or former site
employees
Site neighbors
Citizens and citizens groups
Local environmentalists
The public library
Interviewing the official (if
necessary) and reviewing relevant
files
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PROBLEMS/RESOLUTIONS
Persons with knowledge of the site no
longer work for the government.
Locate these persons and request
interviews, just as with other private
parties. If a contractor is conducting
the research, EPA approval may be
required prior to contacting these
persons.
Government officials or agency attorneys
are hesitant about giving interviews
because of ongoing litigation.
Attempt to work out an acceptable
arrangement with the government
officials or attorneys, even if the
scope of the interview is limited.
Contact the EPA primary contact for
advice or involvement.
The official has a large amount of
information, and the interview is being
conducted by telephone.
Ask the interviewee if the telephone
conversation can be tape-recorded.
Explain to the interviewee that this
will speed up the interviewing process
and will ensure that the answers are
properly recorded. If the official
agrees, the telephone conversation
can be taped on a recorder
containing a beep tone warning every
15 seconds. (State laws pertaining to
recording telephone conversations
should be reviewed.) Be aware that
this method may cause some
interviewees to be reluctant about
answering questions.
The interviewer needs to improve his
interviewing techniques.
References are available at public
libraries that provide advice on
conducting successful interviews. The
references may be written for
purposes other than obtaining
historical information about a site,
but the basic techniques can be used
during a PRP search. Examples of
such references are:
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Donaghy, William C, 1984; The
Interview: Skills and Applications.
Scott, Foresman and Company,
Glenview, Illinois.
Garrett, Annette, 1982; Interviewing,
Its Principles and Methods. Family
Service Association of America, New
York.
Royal, Robert F. and Steven R.
Schutt, 1976; The Gentle Art of
Interviewing and Interrogation.
Prentice-Hall, Inc., Englewood Cliff,
New Jersey.
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3.1.6 PRP NAME AND ADDRESS UPDATES
OBJECTIVE
The objective of this task is to obtain current PRP names and addresses, thus enabling
EPA to send CERCLA 104(e) letters. Other information, including current corporate
address, registered agent, mergers, name changes, and dissolutions, may be collected to
ensure that all PRPs are contacted.
i
PROCEDURES
Initial Information
Needs
o Original List of
PRPs
o Degree of Detail
Needed in
Updated List
Process
Contact
Secretary of
State's Office
Contact or
Review Other
Sources of
Information
Revise
Correspondence
Tracking System
if Necessary
Before the researcher can update the name and
address list, the following must be known:
o Original names and addresses.
o The level of detail needed in the updated
list, such as corporate address as filed
with the Secretary of State's office,
registered agent address, or address from
telephone directory.
o Contact the Secretary of State's office for
each state involved.
Obtain the current corporate address,
registered agent name and address,
name changes, mergers, and
dissolutions.
If possible, obtain information over
the telephone; otherwise, obtain a
written report from the Secretary of
State's office (allow extra time for
mail delivery).
o For companies not listed with the
Secretary of State, conduct additional
research using the following sources:
Local industrial directories
Local newspaper archives
Long distance information
o If the researcher is also tracking PRPs,
revise the correspondence tracking system
(see Section 3.2.12) as modified or
corrected address information is received.
i
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PROBLEMS/RESOLUTIONS
The Secretary of State's computerized
system may not contain older information
on company names. Weeks of state
research time are often encountered.
Consider traveling to the state office
to review the older files.
Consider reviewing early industrial
directories to obtain information on
name changes.
The Secretary of State's files are not
always current.
To determine the reliability of the
information, ask the Secretary of
State's office about its methods of
updating information.
To confirm addresses, consider using
an alternate source of information
such as a current telephone directory
or industrial directory.
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3.1.7 PRP STATUS/PRP HISTORY
OBJECTIVE
The objective of this task is to develop background information on companies or
individuals identified as PRPs, thus enabling EPA to identify successor or parent company
PRPs, correspond with PRPs, and conduct financial assessments of PRPs. Corporate
information should include the date of incorporation, whether or not corporate PRPs
currently exist, the fate of inactive companies, current mailing addresses (facility,
headquarters, and registered agent), and parent or successor companies. Information
obtained for individuals and unincorporated companies should include their current
location, their association with other PRPs (company officer for another PRP), and their
involvement with a site. Examples 1 and 5 in Appendix I, Sample Reports, each have
sections on PRP status or PRP history.
PROCEDURES
Initial Information
Needs
o Addresses Needed
o Information
Needed
Before developing PRP information, the researcher
should determine which identified PRPs are to be
researched and the anticipated use of the research
information. Specifically determine the types of
information needed, such as:
o Which mailing addresses are relevant:
Headquarters address
Facility address
Registered agent names and addresses
Officer names and addresses
o The extent of PRP history needed by EPA
including:
Simply determining whether a
company currently exists
Developing a full PRP history
including the fate of currently
inactive companies
o Whether company officer information is
needed.
o The type of information needed on private
individuals who may be PRPs.
34
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Process
individuals identified as PRPs, the researcher should:
Review Site
Documents
Contact
Information
Sources
Organize
Database, if
Necessary
In developing information on companies and
Review site documents for information
such as PRP names, addresses, and the
history on companies or individuals.
Contact information sources; obtain verbal
information and copies of documents, if
available. The Secretary of State's office
is generally the key source of information.
Other sources can be used if a company is
not incorporated or if supplemental
information is required. Examples of the
most commonly used sources include:
The Secretary of State's office,
specifically (for incorporated firms):
Corporation division
Uniform Commercial Code (UCC)
division
The local public library and reference
librarian for access to:
State, regional, or local
industrial directories
City directories
Telephone directories
Local newspapers
Local or regional Who's Who
Moody's Industrial Manual
Standard and Poor's Corporation
Descriptions
Index of Corporation Affiliations
The local Chamber of Commerce for:
Current directory of chamber
members
Historical directory of members
(rare)
The county or city clerk, business
license office, county assessors'
office
Local tax records
Historical societies
35
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DIALOG Information Retrieval Service
(available at many public libraries),
which includes data sources such as:
Dun & Bradstreet's files
Thomas* Register
Disclosure
Electronic Yellow Pages
If many PRPs are involved, it may be more
efficient to organize a database using
software such as dBASE III or LOTUS 1-2-
3 (see Section 3.2.13). Depending on
EPA's information needs, include:
Current PRP name
Former PRP name
History
Registered agent name and address
Corporate headquarters address
Facility address
Parent company address
PROBLEMS/RESOLUTIONS
It is possible that a corporation will go
out of business and another corporation
will assume the former corporation's name.
Check incorporation and dissolution
dates or dates of operation against
site operation dates.
Check the Secretary of State's office
to track the history of corporate
mergers, takeovers, and name
changes.
Determining PRP status for numerous
parties becomes overly time consuming.
Establish priorities (with EPA if a
contractor is involved).
For simple PRP status (company
existence, headquarters address,
telephone number) anticipate limiting
the effort to one-half hour or one
full hour per PRP, including
36
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research and reporting.
For complicated history (including
mergers, name changes, and purchase
of assets), several hours of effort per
PRP may be required. In this case,
only provide information on those
PRPs clearly linked to the site or
other criteria as determined by the
EPA primary contact.
Review the Hazardous Waste
Enforcement Policy (Federal Register,
Vol. 50, No. 24, Tuesday, February 5,
1985). This interim policy describes
the approach EPA "is now taking in
evaluating private party settlement
proposals for cleanup of hazardous
waste sites or contribution to funding
of response action under" CERCLA.
The state in which a company is
incorporated may not be known.
Contact the Secretary of State's
office of the state in which the
company is located.
Review all relevant background
information.
Obtaining information by telephone from
local sources and for many PRPs is very
time consuming.
Consider traveling to the site
location to personally review local
sources of information such as city
directories, newspaper articles, and
telephone directories.
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3.1.8 RECORDS COMPILATION
OBJECTIVE
The objective of this task is to organize a set of documents according to a system that
will allow the user to easily access and review information in the documents, as well as
maintain accurate documentation of all findings. This system should allow easy retrieval
of information and should provide an index that accesses the information desired.
Example 7 in Appendix I, Sample Reports, is a PRP search report that involved both
compilation of records and development of a transactional database.
PROCEDURES
Initial Information
Needs
o Method of
Organization
The records compilation may require simple or
complex organization, depending on EPA's needs.
Processes for both are discussed below. To choose
the best method of organizing the documents and to
complete this organization in a timely manner, the
researcher must consider several factors, including:
o Types of information needed from the
documents.
o Approximate number of documents and the
time needed to organize them.
If a contractor is conducting the records compilation,
these factors should be discussed with the EPA
primary contact to determine the desired product and
specific requirements.
Process
(Simple Organization)
o Arrange
Documents
Manually
o Assign Index
Numbers
o Develop an Index
If a simple organization is needed, such as organizing
documents by PRP, the researcher should use the
system outlined below. This system is used for both
small and large quantities of documents.
o Arrange the documents manually based on
case needs and projected document use.
Documents may be organized by methods
such as:
Chronological order
Subject matter
Like documents
o Assign the documents an index number,
such as a Bates stamp number.
i
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Develop an index for the document set
based on such factors as:
Index numbers and the title of each
document
The author and date of each
document
Process
(Complex
Organization)
o Group Like
Documents
o Assign Index
Numbers
o Develop an Index
o Program
Database to
Access
Information
If complex organization is needed, such as extensive
cross-referencing or key-word indexing, use the
system outlined below. If a contractor is conducting
the records compilation, the EPA primary contact
and others who will use the information should be
consulted before each step. Refer to Creating
Databases, Sections 3.2.12 through 3.2.14, for a more
detailed discussion.
o Group documents of similar content, such
as scientific or legal documents.
o Assign an index number to each document.
o Develop an index using a database.
Include the index number and decide what
information to use in the database index.
Examples of additional information from
each document include:
Title
Date
Author
Addressee
o Develop a more complex database, if
necessary, using:
Coded designation for particular
subject matter
A database index to refer to the
particular subject
Key word indexing (be sure that
appropriate EPA personnel are
involved in determining the key
words)
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Program the database to access
information in various ways such as:
Chronological order
Authors
Key words (be sure that appropriate
EPA personnel are involved in
determining the key words)
Subject matter
PROBLEMS/RESOLUTIONS
New documents are added to the set after
the work is completed.
For a small set of documents, the
new ones can still be included in the
appropriate order. For example, new
documents inserted between
documents 10 and 11 can be
numbered 10.1, 10.2, and so on.
With a database index, new
documents can be integrated into the
system and the index. The computer
can perform all necessary searches.
The database index may require
significant revisions if a large number
of new documents are discovered
after the key words are selected or
the index is created.
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3.1.9 REPORT PREPARATION
OBJECTIVE
The objective of this task is for the contractor to present PRP information requested by
EPA in a comprehensive written summary that discusses the research performed, research
results, and recommendations for additional research. The report must be fully
documented, attributing all information presented to specific sources. Reports should
summarize all important information collected during both the baseline PRP search and
additional site-specific tasks (see Section 3.2). Reports prepared by the contractors are
enforcement confidential; the contractors can submit these reports only to EPA.
Appendix I includes nine examples from PRP reports that involve various tasks.
PROCEDURE
Initial Information
Needs
o Establish Report
Deadlines,
Objectives, and
Format
o Organize
Research Results
o Identify
Information
Sources to
Reference
Before preparing a report, the contractor should:
o Establish with EPA all reporting
requirements. Report contents and format
should be consistent with requirements of
the CERCLA Enforcement Division to
facilitate cost recovery actions. The
reporting requirements should include at a
minimum:
Report format
Content
Objectives
Deadlines for delivery
o Organize and review all research materials
and information including:
Copies of all documents
Interview results
Title search results
Corporate information
Financial information
Researcher's complete and accurate
notes
Audio tapes, if any (determine
whether audio tapes should be
transcribed to hard copy)
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Develop a thorough understanding of
available research tools and information.
Identify specific relevant sources to be
referenced in report.
Process
0
Provide
Background
Information
Explain the
Scope of Work
Discuss Site
History
List Identified
PRPs
Present
Conclusions and
Recommendations
List References
The comprehensive PRP report summarizes all the
relevant information gathered during the research
effort. To prepare a thorough and well organized
report, the contractor must present information on a
wide range of topics in a structured and integrated
format. Specifically, the contractor should:
o Provide background information on the site
including:
Location (site map)
Period and nature of operation
Physical features of the site
Reason for investigation
o Describe the specific tasks proposed in the
Work Plan and the tasks actually
performed.
o Identify the various sources contacted and
their connection with the site, including:
EPA contacts
State and local officials
Private individuals
o Describe the information and records
obtained as a result of the research.
o Describe the site property ownership,
possibly using:
A property history narrative
Charts or maps
A title abstract
o Discuss the history of the property as a
hazardous waste site, specifically
addressing:
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Site operations
Disposal methods
Reference sources
Gaps in information
Present interview results.
List all identified PRPs as a generator,
transporter, owner, or operator (current
and past). Give the documentary evidence
supporting the inclusion of each PRP on
the list. The evidence should be organized
to provide efficient retrieval for a
particular PRP. Although past owners are
liable only if they were owners at the
time of disposal (Section 107(a)(2) of
CERCLA), this determination should be
made by EPA, not the contractor. Provide
the following for each PRP:
A basis for inclusion (referenced)
PRP status and PRP history
Financial information
Provide, if applicable, separate lists of
PRPs and information request recipients.
The report may identify parties that
should be contacted, yet are not PRPs.
These cases should clearly be identified.
Present any quantitative or qualitative
waste information developed for each
identified PRP. Provide a preliminary
volumetric ranking based on available
information.
Summarize all research and develop
conclusions.
Make specific recommendations for
additional PRP research, where appropriate.
Provide a list of referenced documents.
Provide copies of all relevant documents to
EPA in an indexed fashion. The
researcher's notes do not need to be
included in these documents.
Mark on the cover of the report that it
was prepared in anticipation of litigation.
This allows EPA to protect the report
during discovery, if necessary.
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PROBLEMS/RESOLUTIONS
Research yields important information that
should be delivered to EPA before delivery
of a lengthy report.
Explore with EPA the possibility of
delivering an interim report or
briefing containing this vital
information.
Research results in numerous data gaps.
Identify data gaps and recommend to
EPA further activities that may be
necessary to obtain additional
information.
Research yields voluminous records or
uncovers many promising leads.
Determine EPA's priorities such as
(1) which records or leads to
research and (2) EPA's need to
receive the report before all avenues
are researched (unresearched records
or leads should be identified in the
recommendations).
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3.1.10 TITLE SEARCH
OBJECTIVE
The objective of this task is to identify past and present site owners. Although past
owners are liable only if they were owners at the time of disposal (Section 107(a)(2) of
CERCLA), this determination should be made by EPA, not the contractor. Other PRPs
connected with the site may also be identified during a title search if their roles appear
in recorded documents. Specific results of the title search include summaries of
transactions involving the site property, identities of PRPs, and copies of title documents.
From this information the present and past owners of the property, and often lease
agreements with site operators, can be identified. Other information may include how
the site property was used during various periods of time. A title search may also be
conducted for parcels adjacent to the site. This may provide names of people who are
familiar with past or present site activities; these people can then be contacted and
interviewed. A title search for adjacent parcels may also provide information about
other activities in the area that may have contributed to contamination at the site.
Examples 1, 3, and 4 in Appendix I, Sample Reports, present title search findings.
Example 3 is a report that included only a title search. The history of ownership is
explained with numerous figures. Example 4 shows another method of depicting chain-of-
title information.
PROCEDURES
Initial Information
Needs
o Site Location
o Site Description
o EPA
Requirements
Before beginning the actual title search, the
researcher will need to obtain information on the
site location, site description, and specific EPA
requirements for the title search. For this task, the
researcher may be the contractor or a title company
subcontracted by the contractor. Specifically, the
researcher should:
o Locate the site on a map and obtain a
legal description, if available.
o Obtain additional indicators of the site
location and description including:
County tax assessor's parcel number
Street address
Name of owners
o A survey of the site may be required if
the legal description or exact location of
the site is unknown. This may also be
necessary if the site consists of several
parcels and the relationship between the
parcel boundaries and the site boundaries
is unclear.
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Process
o Obtain
Subcontractor
o Oversee Work
o Prepare
Ownership
History
Determine EPA's specific requirements for
the title search. The Regional Counsel
should be consulted for this determination.
Title search requirements should focus on:
The time period the title search is to
cover
Whether certified copies of any of
the title documents are required (see
Problems/Resolutions section)
The summary format of title search
results
Determine the types of documents that
EPA specifically needs copied.
To subcontract a professional title researcher to
perform the title search, the EPA contractor should:
o Obtain the names of some title researchers
in the county in which the site is located.
These names can be obtained from the
following sources:
County recorder's office in the
county seat
Long Distance Yellow Pages
information
Chamber of Commerce
Title company directories such as
American Land Title Association
o Contact several title researchers. Larger
title search companies with offices in
metropolitan areas may have branch offices
near the site or may be able to recommend
local companies. If possible, contact title
companies that have experience with
CERCLA cases, such as testifying in or
preparing for them. Companies that have
experience in testifying in court or are
willing to sign affidavits relating to their
work are preferable.
o Explain the title search requirements
including:
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The time period to be covered by the
title search
Copies (certified or not) of all
recorded title documents needed
A list of the names and dates of
each title document and the parcel(s)
each affects
Maps displaying current and past tax
parcel boundaries
A clear summary of the ownership
history
The fact that no title insurance is
needed for this work
Schedule requirements
Obtain approximate cost and delivery
schedule estimates (verified in writing)
from each title researcher.
Select one title researcher. Selection
should be based on qualifications.
Qualification requirements may include
such factors as:
Number of title searches previously
conducted
Recommendations from references
Current liability insurance
Prepare and complete a contract. The
contract should include the maximum dollar
amount for the search (not to be exceeded
unless notified).
Maintain close and continuous contact with
the title researcher.
Review title search work products to
determine whether:
The correct property was researched
Erroneous documents were provided
Missing or unreadable documents exist
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Documents are incomplete
The property descriptions in the
documents relate to site property
The chain-of-title is continuous (no
gaps appear in the chain)
Contact the title researcher to resolve any
errors or questions.
Prepare a reference list of all recorded
documents, including their location (book
number, page number). Recorded
documents may include:
Deeds
Leases
Grants
Mortgages/liens
Easements
Agreements
Legal property descriptions
Prepare a clear summary of the site
ownership history (if not completed by the
title researcher). To complete this
summary, the preparer should:
Arrange documents chronologically.
Determine the history of each parcel.
Briefly describe each transaction and
whether it affects all or a portion of
the site. Items to be described, as
appropriate, include:
Type of transaction
Date of transaction
Date recorded
Parties involved and their role
Effect on the site
Declaration of trust
Schedule of beneficiaries
Restrictive covenants
Death certificates
Easements
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Terms of transaction (such as a 5-
year recorded lease).
Determine whether the transaction
transferred all rights to the land.
For example, the determination of
whether the mineral rights were
transferred with the surface rights,
or whether the mineral rights were
valid, is important for sites in mining
areas.
Explain specific terms, including:
Quit claim deed
Conditional sales contract
Partial release of deed of trust
and mortgage
Warranty deed
Include charts and maps where these
are useful.
Provide precise references to
documents (EPA may need to access
these documents at a later date).
Obtain additional information about past
and present owners if they are
partnerships, corporations, or trusts.
If the property is owned by a
partnership, obtain a copy of the
Partnership Agreement or the
Dissolution of Partnership.
If the owner is a corporation, obtain
the Certificate of Incorporation.
If the property is owned in trust,
obtain a copy of the Declaration of
Trust, the Trustee Certificate, and
Schedule of Beneficiaries.
A title search is usually considered
complete when the ownership history is
clear and complete for each of the site
parcels.
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PROBLEMS/RESOLUTIONS
The researcher is unsure of the period of
interest to be covered by the title search.
Assure that the title search includes
the time period of known industrial
activity at the site. The title
company may be able to determine
this at the outset of the search. The
period of industrial activity may also
be obtained from research of other
agency files (see Section 3.1.1).
The amount of time and money required
by the researcher to complete the title
search is uncertain until the work is well
underway.
Close contact between the title
researcher, EPA contractor, and EPA
is required to become aware of and
address scheduling and budget
changes.
It is difficult to decide whether certified
copies of title documents are desirable.
During discovery, EPA may request
admissions concerning property
ownership. If parties do not admit
their ownership, EPA can recover the
costs of obtaining the certified copies
necessary to prove ownership at that
time from the recalcitrant parties.
As certified copies are extremely
expensive, close coordination with the
EPA primary contact and Regional
Counsel is required to determine
whether certified copies are required.
Despite the usual attempt to obtain a
professional title researcher to perform the
title search, the contractor cannot find a
researcher who is willing or able to do the
work.
The contractor will perform the title
search working closely with the EPA
primary contact. The person
conducting the search should be
qualified and have prior experience in
this area.
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3.2 TASKS PERFORMED TO FURTHER CHARACTERIZE
SITE-SPECIFIC PRP ASSOCIATION
Section 3.2 contains 18 specialized tasks. These tasks are categorized into four
subsections: (1) obtaining specialized information, (2) performing waste stream
comparisons, (3) creating databases, and (4) performing other tasks.
The subsection on obtaining specialized information includes eight tasks that may
provide more information about a site and its PRPs. These eight tasks are listed
alphabetically within the subsection.
The subsection on performing waste stream comparisons includes three tasks. Two
of the tasks, industrial survey and waste stream inventory, usually must be completed
before the third task, process chemistry analysis, can be completed.
Three tasks are listed in the subsection on creating databases. These tasks allow
large amounts of data, such as types and quantities of waste, or key document
information, to be managed more efficiently. These tasks are also listed alphabetically.
Four tasks not directly related to PRP identification but often included in PRP
searches are listed alphabetically in the subsection on performing other tasks. These
tasks are compliance history, financial assessment, generator ranking, and property
appraisal.
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3.2.1 AERIAL PHOTOGRAPHS
OBJECTIVE
The objective of this task is to locate and obtain copies of aerial photographs pertaining
to a specific site. Aerial photographs can be beneficial in a PRP search because they
often show the relationship between the site and its surroundings. Aerial photographs
are generally larger in scale than topographic maps. Aerial photographs, taken over a
period of time, can be useful in characterizing the chronological development of a site
and its surroundings. These photographs are valuable in determining if lagoons, ponds,
or other disposal areas were active during a PRP's tenure as owner or operator. Current
aerial photos can provide information otherwise obtained from a site survey.
PROCEDURE
Process (Historical
Photographs)
o Gather
Background
Information
o Obtain Historical
Photographs
o Evaluate
Photographs
The following steps provide a method for obtaining
historical information about the site.
o Gather background information on the site,
including:
Site location and size
Duration of site operation
The need to identify site features to
a high level of detail (will determine
enlargement needs)
o Obtain the aerial photographs. Historical
aerial photographs are available through
several sources. If a contractor is
conducting the research, arrangements
must be made through EPA to access the
last two sources listed on the following
page.
Local commercial aerial surveyors or
photographers
State agencies or departments
State or county surveyor's office
U.S. Geological Survey (USGS)
National Cartographic Center
507 National Center
Reston, Virginia 22092
703/860-6045
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Process (Current
Photographs)
a site visit.
o Gather
Photograph
U.S. EPA Environmental Monitoring
Support Laboratory (EMSL)
P.O. Box 15027
Las Vegas, Nevada 89114
702/798-2100
EROS Data Center
Sioux Falls, South Dakota 57198
605/594-6151
Evaluate the photographs. The researcher
can conduct a simple analysis of the
photographs to characterize obvious site
features. A comparison of the historical
photographs will give an indication of the
site history, such as:
When industrial or disposal activities
began at the site
When manmade structures were
constructed (buildings, impoundments)
When land units were closed or
covered
The following steps provide a method for obtaining
current information about the site without conducting
Background
Information
Obtain Current
Photograph
Duration of site operation
Evaluate
Gather background information on the site,
including:
Site location and size
The need to identify site features to
a high level of detail (will determine
scale and enlargement needs)
Contact aerial photograph sources (listed
above) to determine if a current aerial
photograph is available.
Order and obtain available
photographs,
If not available, determine whether
an aerial photograph is required; if a
contractor is conducting the search,
consult EPA.
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If a current photograph is required, but
not already available, contact aerial
photograph sources (listed above) to
determine if they can photograph ("fly")
the site.
Select a photograph source and obtain a
current photograph. Proper contract
procedures must be followed.
Evaluate the photograph. The researcher
can conduct a simple analysis of the
photograph to characterize obvious site
features. Possible information that can be
obtained includes:
Dimensions of the site
Topographic characteristics
Number and types of manmade
structures
Presence of surface impoundments
Types of vegetation
Surface hydrology
Presence of waste disposal areas and
possibly the types of wastes disposed
of
If the information will be used to draw
conclusions regarding the connection of
PRPs to the site, the assistance of highly
skilled and trained remote sensing
specialists should be solicited. EPA's
EMSL at Las Vegas can provide such
assistance.
PROBLEMS/RESOLUTIONS
In a photograph, the exact boundaries of a
site may not be distinguishable.
The contractor can use title
documents and landscape features to
draw appropriate property boundaries.
Aerial photographs are not readily
available
Non-aerial historical photographs are
also useful in obtaining information
about the site.
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3.2.2 CERCLA SUBPOENA AUTHORITY-
OBJECTIVE
The administrative subpoena provision of SARA, Section 122(c)(3)(B), gives EPA the
power to require the attendance and testimony of witnesses and the production of
documents as is "necessary and appropriate" for performing a non-binding preliminary
allocation of responsibility (NEAR) "or for otherwise implementing" the settlement
provisions of Section 122. While NBARs are specifically mentioned in CERCLA, there is
no requirement that EPA first decide to prepare an NEAR before issuing an
administrative subpoena or that the information gathered by an administrative subpoena
be somehow only used for an NBAR. The language of Section 122 is broad and permits
the use of administrative subpoenas not only for preparation of NBARs, but also for
factors set forth in Section 122 (c)(3)(A) that may be considered when preparing an
NBAR. These factors are a useful outline of the types of information that may be
obtained with an administrative subpoena.
Administrative subpoenas may be used at any time prior to settlement, and even prior to
an administrative or civil enforcement action, to gather any information that may aid in
ultimately reaching a settlement.
An administrative subpoena is most productive in two situations; where preliminary
information has already been gathered and the examiner wishes to question a particular
person in detail, perhaps with the use of documents or exhibits, and where expedited
enforcement is being considered.
A subpoena can be served in a number of ways depending on the circumstances of the
investigation. Whenever possible, personal service is preferred, especially when it is
likely that the subpoena may be ignored or challenged. When personal service is not
practical, a subpoena can be served by registered or certified mail, return receipt
requested. Regardless of how the subpoenas is serviced, the correct person must be
served. Clearly, a subpoena to testify must be directed to and served upon the person
whose testimony is sought. A subpoena to provide documents must be served upon the
custodian of the records or documents sought or upon a person authorized to compile the
information sought. The person serving the subpoena, including the person who actually
mails the subpoena when that method of service is used, must complete an affidavit of
service at the time of service.
An administrative subpoena should not be issued in lieu of enforcing an information
request and should not be confused with a deposition or other means of discovery.
Administrative subpoenas arc to be used prior to filing a complaint, and generally can be
used to obtain a wider range of information than is possible during discovery.
* Guidance for use of CERCLA subpoena authority under SARA Section 122 is being
developed by the Office of Enforcement and Compliance Monitoring (OECM). This
information will be made available as soon as possible for inclusion in this manual.
For any questions prior to the issuance of additional information, contact Tom Fiore
of OECM at FTS 382-3105.
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3.2.3 FIELD SURVEY
OBJECTIVE
The main objective of a supplemental field survey is to gather additional evidence
through field activities that may connect or associate PRPs with hazardous waste storage
or disposal at the site. Field surveys are recommended when little other information is
available. This task is a routine part of site investigations (SI) and remedial
investigations (RI). The EPA primary contact for the PRP search should coordinate with
EPA personnel responsible for the SI and RI to ensure that information is collected
efficiently.
PROCEDURE
Initial Information
Needs
o SI or RI Status
This task is a routine part of site investigations (SI)
and remedial investigations (RI). To eliminate
redundancy, the EPA primary contact should
determine if an SI or RI has been or will be
conducted. If a contractor is conducting the survey,
the coordination with other agency personnel should
be conducted through the EPA primary contact,
unless directed otherwise. Coordinating the PRP
search with an SI or RI will affect the contractor's
scope of work, level of effort, and schedule.
o If an SI or RI has been conducted:
Obtain and review information already
collected.
Determine if additional data is needed
from a field survey; if so, conduct
the survey as described in the
Process section.
o If an SI or RI is underway, planned, or
anticipated:
Contact the EPA personnel
responsible for the SI or RI to
discuss:
Data to be collected
Schedule of data collection
Modification of data collection
plan to include PRP search
needs
PRP researcher's role in the SI
or RI
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Process
o
Obtain
Background
Information
Determine Who
to Contact
Determine
Information Gaps
Plan Field
Activities
Obtain
Permission from
Site Owner
Conduct General
Field Inspections
Record Drum
Label
Information
Take Samples for
Analysis
If the PRP researcher is to lead the
field survey, follow the process
described below with appropriate
modifications to satisfy the SI or RI.
o If an SI or RI has not been conducted and
is not anticipated, follow the process
described below to conduct the field
survey.
To safely and efficiently obtain useful information
from a field study, adequate planning and preparation
are required.
o Review site background data and
information obtained through interviews to
identify the logistical requirements of the
field survey as well as the focus of the
survey.
o Determine safety considerations; prepare a
site safety plan, if appropriate. Field
surveys should be conducted only by
personnel enrolled in a medical monitoring
program and certified in the appropriate
use of safety equipment warranted by site
conditions.
o Determine the individuals and businesses to
contact during the survey.
o Determine information gaps and questions
to ask based on previously reviewed
information.
o Plan and schedule field activities.
o Obtain permission to enter the site from
the site owner before conducting the
survey. If a contractor is conducting the
survey, EPA resources may be required to
seek access.
o Document all findings accurately to ensure
their usefulness.
o Conduct a general field inspection.
Identify site layout, buildings,
disposal and release areas, wash
stations, and drop areas.
Identify locations where records may
be kept.
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Record abandoned vehicle license
plate numbers, registrations, and
Interstate Commerce Commission
(ICC) numbers.
Take photographs (describe each
picture in a field notebook).
Gauge the level of effort that may be
required later, particularly if sampling
is to be conducted or drum label
information is to be obtained.
Identify any previously unforeseen
logistical problems.
o Review the documents (see Section 3.2.4).
o Conduct personal interviews with
employees, neighbors, and owners and
operators (see Section 3.2.5).
o Record drum label information.
Record or photograph all visible drum
label markings, hazard warnings, and
drum lot and inventory numbers.
Do not touch drums.
o If appropriate, take samples for analysis
(procedures for site sampling are in
Section 3.2.8).
PROBLEMS/RESOLUTIONS
The researcher determines that abandoned
operating records are located at the site.
The contractor or EPA enforcement
staff should obtain written permission
from the owner or operator of the
site or verbal permission from the
EPA Regional Counsel to obtain these
documents.
Both removal action and field survey are
planned for the CERCLA site.
Contact the on-scene coordinator as
early as possible to coordinate your
field survey activities. You may want
to conduct a preliminary survey prior
to any remedial activities to ensure
that valuable evidence is not
destroyed.
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3.2.4 PRP FILE REVIEW
OBJECTIVE
The main objectives of this task are to (1) locate and obtain all relevant PRP documents
pertaining to the site and (2) gather information from these documents about a site's
history of operations, including details on waste types and amounts and PRPs possibly
involved with the site. Relevant documents may include those from citizens' groups,
newspaper articles, customer lists, bills of lading, gate logs, ledgers, accounts receivable
records, former customer lists, change of address lists, customer correspondence, invoices,
and so on. Efforts to obtain private records can establish initial contacts with private
individuals and corporate personnel, some of whom may be good prospects for personal
interviews.
PROCEDURE
Initial Information
Needs
o Background
Information
o Possible Sources
Before attempting to obtain PRP files, the researcher
should:
o Review site information from agency files
and staff.
o List possible sources of private site files.
These sources may be identified through
agency file reviews or interviews with
government officials. Another source is
CERCLA 104(e)/RCRA 3007 letter responses
(see Section 3.1.2).
Process (Site File
Retrieval)
o Obtain
Authorization
Prior to
Contacting
Source
o Obtain
Information on
Other Sources
o Arrange to
Review Files
PRP file retrieval and review processes are listed
below.
PRP File Retrieval
o If a contractor is conducting the research,
first obtain EPA authorization to contact
private parties who may have relevant
documents, and to review PRP records.
o Contact parties with files by telephone or
letter as directed by EPA.
o Identify yourself and your organization;
fully explain the purpose and scope of the
EPA investigation.
o Request information pertaining to:
History of site operations
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Potential owners, operators,
generators, and transporters
Needs consistent with EPA strategy
Identify other knowledgeable individuals or
sources of records.
Arrange to review and copy the PRP
records. Identify the following:
A place to review records
The volume of records
Availability of photocopying
equipment
If original documents are taken from the
PRP for copying purposes, follow proper
chain-of-custody procedures
Process (Site File
Review)
o Review Records
o Summarize
Results
PRP File Review
o
o
o
Review the records. Appendix D lists the
types of documents that may be useful.
Documents of interest include those that:
Identify PRPs
Provide evidence that a PRP was
involved with a site
List types and quantities of waste
disposed of at the site
Identify other persons or agencies
that may have knowledge of site
activities
Document all sources reviewed.
Obtain permission to photocopy relevant
material.
Summarize the results.
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PROBLEMS/RESOLUTIONS
The volume of documents may be large.
This situation may present difficulties with
respect to cost, time, and space
constraints.
To decrease costs, review records
prior to copying to eliminate
duplicate or irrelevant documents.
To save time, copy records with a
rental copier or use temporary help.
To save space, microfilm documents
and produce hard copies from the
microfilm only when necessary.
Documents from the waste disposal site
may be contaminated.
Before reviewing potentially
contaminated documents, analyze a
representative sample of the
documents.
Develop a safety plan before
initiating work with contaminated
documents.
Site owners or operators may refuse access
to site records.
Contact the EPA Regional Counsel for
guidance and assistance.
4
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3.2.5 PRIVATE CITIZEN/PRP INTERVIEWS
OBJECTIVE
Interviewing private citizens and PRPs may be an effective means of gathering
information on site operations, site history, PRPs, or other private parties who may
possess relevant documents or information. Private citizens, especially persons living
near sites, often have relevant information concerning events at the site. In addition,
PRPs are often familiar with past site activities. Samples from PRP search reports that
include interviews are presented in Appendix I, Examples 1 and 2. Example 9 presents
another method of summarizing interviews in a report. These examples also show the
types of information that can be collected during interviews.
PROCEDURES
Initial Information
Needs
o Background
Information
o Names of Private
Citizens and
PRPs to
Interview
Before conducting interviews, the researcher will
need to:
o Review background site information from
all agency sources.
o Obtain names of private citizens and PRPs
who may have useful information regarding
the site.
o If a contractor is conducting the research,
the contractor will need EPA authorization
prior to contacting and interviewing
private citizens and PRPs.
o Determine whether a private investigator
should perform the interviews (for
example, an interviewee may have past
criminal associations or may be in hiding).
Process (Scheduling
Interviews)
o Prioritize
Interviews
o Contact
Interviewees
o Determine When
and How
Interviews Will
Be Conducted
The process of interviewing private citizens and
PRPs can be divided into two parts: scheduling
interviews and performing interviews.
Scheduling Interviews
o Order potential interviewees (if many)
according to association, geographic
location, potential amount of information,
and so on.
o Decide whether it is desirable to
tape-record the planned interview.
If it is, obtain advance approval from
EPA.
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Be certain that tape-recorded
interviews are conducted in
compliance with applicable laws.
Contact the private citizens and PRPs. Be
prepared for possible negative reactions,
depending on the individual's relationship
to the site.
If a contractor is conducting the
interview, identify yourself as an EPA
contractor.
Indicate that private citizen or PRP
statements will be provided by the
contractor to EPA only.
Provide the name and telephone
number of the EPA primary contact if
the interviewee wants verification.
Decide whether the interview should be
conducted by telephone or in person. Base
the decision on time, scheduling, travel,
and interviewee preferences.
i
Process (Performing
Interviews)
o Prepare
Questions
o Conduct
Interviews
o Document and
Record
Interviews
Performing Interviews
Prepare specific interview questions
beforehand to ensure that all topics
consistent with the EPA/contractor
strategy are covered.
Have an EPA attorney at the interview if
the PRP's attorney is present.
Have the interviewee answer general
questions first, such as explaining
recordkeeping procedures. Then ask
specific questions on key areas of interest
based on the background information. The
general types of information to obtain are
listed below and in Section 3.1.4. An
example of an interview form is in
Appendix E.
Activities at the site before, during,
and after the site's suspected use for
waste disposal
Site owner and operator history
Waste disposal practices
4
64
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Enforcement actions relating to the
site
PRPs associated with the site
(owners, operators, generators,
transporters)
Administrative or legal actions
involving the site (lawsuits, license or
permit violations, cleanup orders)
Available documents
Other people or organizations
knowledgeable of the site
Conduct the interviews. Whenever
possible, have two persons present at the
interview.
Determine interviewee's association with
the site and the basis of his knowledge
(first-hand information or eye witness vs.
rumored information).
Determine whether a transcript (if it was
tape-recorded) or a written report of the
interviews is needed.
Select a transcribing service if
transcripts are desired.
Include the interview record in the
report.
PROBLEMS/RESOLUTIONS
Private citizens and PRPs may ask that
their attorneys handle any interview
requests or that their attorneys be present
during the interview.
Agree to this arrangement; however,
if a contractor is conducting the
interview, notify EPA of the
situation.
The interviewee has a large amount of
information, and the interview is being
conducted by telephone.
Ask the interviewee if the telephone
conversation can be tape-recorded.
Explain to the interviewee that this
will speed up the interviewing process
and will ensure that the answers are
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properly recorded. If the interviewee
agrees, the telephone conversation
can be taped on a recorder with a
beep tone warning every 15 seconds.
(State laws pertaining to telephone
conversation recording should be also
reviewed.) Be aware that this
method may cause some interviewees
to be reluctant about answering
questions.
Also, be aware that several problems
may arise when obtaining transcripts
of tape-recorded interviews.
Transcripts are expensive (it can
require 10 minutes to transcribe one
minute of an interview). An inter-
viewer must proofread the
transcription and check it against the
recording to ensure accuracy.
The interviewer needs to improve his
interviewing techniques.
References are available at public
libraries that provide advice on
conducting successful interviews. The
references may be written for
applications other than obtaining
historical information about a site,
but the basic techniques can be used
during a PRP search. Examples of
such references are:
Donaghy, William C, 1984; The
Interview: Skills and Applications.
Scott, Foresman and Company,
Glenview, Illinois.
Garrett, Annette, 1982; Interviewing,
Its Principles and Methods. Family
Service Association of America, New
York.
Royal, Robert F. and Steven R.
Schutt, 1976; The Gentle Art of
Interviewing and Interrogation.
Prentice-Hall, Inc., Englewood Cliff,
New Jersey.
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It is difficult to establish the accuracy and
reliability of personal interviews.
Attempt to obtain information from
more than one source.
Carefully characterize the
backgrounds of the persons
interviewed.
An interviewee requests anonymity.
Comply with this request; check other
sources to confirm information
provided during the interview.
An interviewee is uncooperative.
Consider hiring a private investigator
who is skilled in interview techniques
to conduct the interview.
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3.2.6 PRIVATE INVESTIGATIONS
OBJECTIVE
Private investigators (PI) are generally hired to locate PRPs or to obtain financial
information about PRPs. Pis are used in situations that are potentially dangerous or
when it is more efficient or economical for a PI to conduct the research than the
primary researcher. The use of Pis may be more efficient or economical because they
are located in and are familiar with the local community. After locating a PRP, EPA or
the contractor, not the PI, should contact the PRP. PI reports should provide the
research findings (addresses, assets) and the basis for the information provided.
C
PROCEDURES
Initial Information
Needs
o Determination
That a PI is
Needed
o Background
Information
Determine whether a PI is needed. A PI
may be needed if the researcher:
Cannot locate a principal PRP or
witness
Believes that a PRP is concealing
assets
Has identified a potentially dangerous
situation (armed PRPs, organized
crime)
Obtain background information from
previously researched avenues.
4
Process
o
Determine
Conditions of
Hiring a PI
Identify Possible
Pis
Select Pis
If a PI is needed, the contractor should
contact EPA to:
Determine activities the PI will be
asked to perform.
Confirm necessary information to be
released to the PI.
Obtain instructions for the PI,
including:
Whom the PI can contact
Information that can be released
to those contacted
Identify Pis near the suspected location of
the PRP. Obtain suggestions from:
State environmental enforcement
authorities
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Local police or sheriff
Select a PI. This selection is based on
information obtained by:
Checking with the Better Business
Bureau, Chamber of Commerce, and
other informed services
Contacting potential Pis directly and
determining:
How long they have been in
business
Whether they are former police
officers
Whether they have experience
with environmental cases
Whether they have experience
working for government
agencies
Whether they are insured or
bonded
Whether any suits have been
filed against them for
breach of privacy or other
such actions
Association memberships
References
Contacting references
If a contractor is the researcher, clear the
selection with EPA.
Contact the PI.
Stress need for confidentiality and
lawful methods for gathering
information.
Define research parameters and
methodologies, as necessary.
Establish reporting methods
(deliverables should include results,
all accessed information sources,
procedures, and hours spent on the
project).
Develop and have the PI sign a
confidentiality agreement with EPA.
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PROBLEMS/RESOLUTIONS
Since the PRP researcher is unlikely to
have prior experience with the particular
PI, it is often difficult to assure the
quality of the investigative work.
Check references closely.
Be specific about the limits of
information being sought.
Require frequent written status
reports.
The PI or contractor obtains information
indicating that the PRP has been involved
in criminal actions within the last six
months.
Inform the EPA primary contact of
the situation. Arrangements should
be made to contact the EPA Criminal
Investigations Unit or the FBI.
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3.2.7 SITE ENFORCEMENT TRACKING SYSTEMS
OBJECTIVE
The objective of this task is to obtain information about certain PRPs through the Site
Enforcement Tracking Systems (SETS). SETS is a database maintained by EPA's Office
of Waste Programs Enforcement (OWPE) that indicates whether a party has been sent a
notice letter. OWPE updates SETS with information it obtains from the regions. When
the regions issue notice letters, copies are submitted to EPA headquarters. OWPE uses
these letters to update SETS.
PROCEDURE
Initial Information
Needs
o Names of PRPs
Before SETS can be accessed, the researcher must
identify the complete names of the identified PRPs.
Process
o
Obtain Access to
SETS
o Submit List of
PRPs
o Obtain PRP
Information
If a PRP has been sent a notice letter, information
about the PRP may be obtained by completing the
following steps:
o Obtain access to SETS through NEIC or
OWPE. (EPA anticipates that the regions
will have access to SETS beginning
sometime in fiscal year 1987.)
o Relay a list of PRPs to SETS to determine
whether any have been sent letters.
o Obtain information on PRPs who have been
sent notice letters. Information may
include:
Address
Site information
Site contacts (EPA headquarters, EPA
regional office, Department of Justice
(DOJ), U.S. Attorney, and state
personnel)
o Contact the EPA regional office contact, if
identified, to obtain additional information
about the PRPs.
PROBLEMS/RESOLUTIONS
No problems have been identified in performing this
task.
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3.2.8 SITE SAMPLING
OBJECTIVE
The objective of site sampling is to connect a specific, identified waste type with a PRP
through chemical analysis of samples collected at the site. This task is a routine part of
site investigations (SI) and remedial investigations (RI). The EPA primary contact for
the PRP search should coordinate with EPA personnel responsible for the SI and RI to
ensure that samples are collected efficiently. The EPA primary contact should also make
sure a "site access" agreement between the site owner and EPA exists prior to doing any
work on the site.
PROCEDURE
Initial Information
Needs
o SI or RI Status
o Site Access
Agreement
This task is a routine part of Sis and RIs. To
eliminate redundancy, the EPA primary contact
should determine if an SI or RI has been or will be
conducted. If a contractor is conducting the
sampling, the coordination with other agency
personnel should be conducted through the EPA
primary contact, unless directed otherwise.
Coordinating the PRP search with an SI or RI will
affect the contractor's scope of work, level of
effort, and schedule.
o If an SI or RI has been conducted:
Obtain and review the information
already collected.
Determine if additional data is needed
from site sampling; if so, conduct the
sampling as described in the Process
section.
o If an SI or RI is underway, planned, or
anticipated:
Contact the EPA personnel
responsible for the SI or RI to
discuss:
Data to be collected
Sampling schedule
Modification of sampling plan to
include PRP search needs
PRP researcher's role in the SI
or RI
i
t
72
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Process
Obtain
Background
Information
Develop a
Sampling Plan
Develop a
Quality
Assurance
Project Plan
Conduct
Sampling
If the PRP researcher is to lead the
site sampling, follow the process
described below with appropriate
modifications to satisfy the SI or RI.
If an SI or RI has not been conducted and
is not anticipated, follow the process
described below to conduct the sampling.
Prior to doing any work on the site, the
investigator must obtain "site access"
agreement from the site owner.
The file review should provide necessary
information for planning the sampling
activities. The information includes:
Types of wastes known or suspected
at the site
Media involved (soil, drums, ground
water)
Compounds and concentration levels
Safety considerations
Review applicable sampling procedures
detailed in "SW-846 Physical/Chemical
Methods," Office of Solid Waste.
Develop a sampling plan that includes a
safety plan.
Prepare an EPA-approved Quality
Assurance Project Plan (details in "Interim
Guidelines and Specifications for Preparing
Quality Assurance Project Plans," Office
of Emergency and Remedial Response).
Coordinate sampling with the on-scene
coordinator (OSC) if remedial work is
being undertaken or if a removal action is
planned or underway. Sampling performed
under OSC's direction, if complete and
accurate, may preclude the need for
sampling by the PRP researcher.
Coordinate activities with the assigned
analytical laboratory to ensure that sample
integrity is not compromised.
73
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Follow the RCRA Inspection Manual for
specific approaches to sampling drums,
tanks, waste piles, impoundments, and
other disposal areas.
Employ strict chain-of-custody procedures
to ensure the validity of sample results
(details in "National Enforcement
Investigations Center Policies and
Procedures Manual," U.S. EPA, 1981).
PROBLEMS/RESOLUTIONS
Identification of PRPs from site sampling
results is not complete.
Characterizing the waste at the site
is only half the effort required to
establish evidentiary data that may
implicate a PRP. The remaining
effort entails associating the specific
waste to drum markings, operating
log entries, and other generator,
transporter, owner, or operator
information.
The owner or operator of the site may
refuse the contractor access to site.
Notify the EPA primary contact and
request assistance in obtaining site
access.
74
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3.2.9 INDUSTRIAL SURVEY
OBJECTIVE
The objective of an industrial survey is to determine parties who may have contributed
to the site contamination. This is accomplished through surveying local businesses and
reviewing various industrial manuals and directories. This task is particularly useful
when little information is available on the site from documents, interviews, and other
usual sources, or when the site is in an area where neighboring facilities may have
contributed to the contamination. Example 1 in Appendix I, Sample Reports, identifies
unconfirmed PRPs based on an industrial survey.
PROCEDURES
Process
Review and
Contact Local
Information
Sources
Interview
Persons with
Knowledge of
the Site
Obtain Detailed
Information on
Local Industries
The following steps outline the process for
conducting an industrial survey. A sample form that
may assist in conducting these surveys is provided in
Appendix E.
o Review local business directories and
consult local offices to obtain information
on industries in the area.
Chamber of Commerce
Planning department
Office of Solid Waste
Better Business Bureau
Business or industrial directories
Tax or property assessment office
Telephone directories/yellow pages
Area visit/windshield survey
o Interview ex-employees, neighbors,
citizens' groups, and officials with site
knowledge (see Section 3.2.5).
o Determine the type of business each
company is engaged in and its industrial
classification. Sources of information
include:
Moody's Industrial Manual
Standard & Poor's Corporation
Descriptions
75
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Thomas' Register
Local industrial directories
Interviews (see Section 3.2.5)
Compile an inventory of potential
industries that may have contributed to
the contamination at the site.
Complete the industrial survey list by
obtaining (at a minimum) each industry's
name, address, facility contact, and its
Standard Industrial Classification (SIC)
code, which classifies the major activity of
the industry.
i
PROBLEMS/RESOLUTIONS
If the CERCLA site is located in a large
metropolitan area, then hundreds of
potential industries could be PRPs.
It may be necessary to establish
geographical limits for the survey.
Current directories may not be applicable
for an old disposal site.
Consult libraries to obtain telephone
books and directories for the
applicable time period.
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3.2.10 PROCESS CHEMISTRY ANALYSIS
OBJECTIVE
The objective of a process chemistry analysis is to determine the types of wastes likely
to be generated by area industries that may have used the site for disposal. This task is
particularly useful when little documentation exists to indicate who disposed of wastes at
the site. This task is usually only conducted when the site had a history of receiving
wastes from off-site generators. A good understanding of industrial technology is useful
in the process chemistry analysis. Local industries are grouped according to the products
and manufacturing processes from which characteristic waste streams are normally
generated. These wastes are subsequently compared to contaminants found at the site.
Once the investigator establishes a link between an industry and wastes disposed of at
the site, then additional data gathering efforts can be initiated to further define an
identified company's specific waste handling activities.
PROCEDURES
Process
Identify Local
Industries
Determine Waste
Types
Compare
Industrial Wastes
and Disposed
Wastes
Consult the industrial survey list prepared
for the site, if available (see Section
3.2.9).
Categorize each of the firms according to
their SIC codes. Identify products and
manufacturing processes for each category.
Company-specific information can also be
included if it is available from sources
such as an industrial survey or CERCLA
104(c) letters.
Determine the types of waste generated by
each industry. Available data sources
include:
EPA -- effluent limitations guidelines,
available through the Office of Water
and Waste Management, list pollutant
parameters for various industry
categories and sometimes identify
other waste streams not falling under
the wastewater control system; other
sources include RCRA studies and
listing or delisting information.
Raw material manufacturers and
suppliers -- these companies can
provide extensive information on the
types of raw materials used by many
types of industries.
77
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Trade associations -- trade
associations might provide information
on products,, processes, and wastes
that are used or generated by a
specific industry.
Literature studies other federal
and state studies, the Kirk-Othmer
Encyclopedia of Chemical Technology,
and trade publications can provide
detailed information on many aspects
of a particular industry.
Maintain a parallel list of identified
contaminants found at the site (see
Section 3.2.1 1).
Compare types of wastes generated by the
various industries with the list of
contaminants found at the site and
establish causal relationships.
i
PROBLEMS/RESOLUTIONS
Not all contaminants found at the site
have been linked to an area industry.
Transporters may cover areas beyond
the geographical limits established by
the study. Contact local solid waste
regulatory offices to determine which
haulers work in the area and whether
they service any outlying industries.
Some contaminants, such as solvents, are
used by many industries; thus, many
potential generators may be assigned to
one waste type.
All industries must be regarded as
potential sources until further
information can be acquired that will
specifically exclude them from
consideration. Consider conducting
additional research through such
activities as interviews (see Section
3.2.5).
Information obtained from SIC codes is not
company-specific.
Additional research can be conducted
to obtain information about the waste
streams generated by specific
companies.
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3.2.11 WASTE STREAM INVENTORY
OBJECTIVE
The main objective of this task is to compile an accurate inventory of wastes that were
stored or disposed of at a site by reviewing all waste stream records, operating logbooks,
and analytical reports. This task is required if the researcher needs to determine the
types and quantities of waste contributed by each PRP. Knowing the types of wastes
disposed of at the site is necessary to identify a relationship between the site and PRPs.
When a complete inventory of wastes is developed, it can be used in conjunction with
process descriptions and industry surveys (see Section 3.2.9) to identify parties that may
have been involved in disposal activities at the site.
PROCEDURE
Initial Information
Needs
o Location
o Contamination
Process
o
Identify All
Available
Documents
Inventory Wastes
Before initiating a waste stream inventory, the
researcher must know:
o The locations of detected contamination.
o The types of contamination detected.
The inventory process includes the following steps:
o Identify all available documents (daily
operating logbooks, inspection reports,
ledgers, disbursements, invoices,
consignments, and laboratory analysis
records).
o Identify the document originator or author,
document location, and range of years or
key dates covered by the records.
o Identify applicable information in the
documents (wastes involved, disposal
prices, volume of waste disposed,
contaminant concentrations, and
contractual arrangements).
o Establish a database when information is
voluminous or is from several different
sources. Information can be entered on a
personal computer spreadsheet that allows
data to be sorted in various ways (see
Sections 3.2.13 and 3.2.14).
o Identify PRPs by comparing the waste
stream inventory with process descriptions
and industrial surveys (see Section 3.2.9).
79
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PROBLEMS/RESOLUTIONS
Evidence about a specified party is found
on a soiled or torn page of a document.
The condition of the document or evidence
can compromise its validity.
Illegible handwritten notes,
incomplete records, and torn or soiled
document pages will diminish the
reliability of the findings. Be careful
to support all findings with
credible or clear data before listing
companies or individuals as PRPs.
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3.2.12 CORRESPONDENCE TRACKING DATABASES
OBJECTIVE
The objective of this task is to track the mailing of and responses to notice letters and
information requests sent to PRPs. This task often requires using a computerized
database because of the large number of PRPs contacted. Computer printouts can be
used to summarize the PRP responses. See Section 3.1.6 for procedures on maintaining a
PRP address list.
PROCEDURES
Initial Information
Needs
o Information to
Track
o PRP Names and
Addresses
Process
o Design Database
o Update Name and
Address List
Before beginning the tracking procedure, the
researcher should obtain:
o The type of information to be tracked,
such as who was sent a letter or request,
whether they receive it, and whether they
responded.
o Names and addresses of contacts within
each PRP's company or the name and
address of the company's registered agent.
o Design a database system which will
incorporate the required information.
o Determine the universe of PRPs.
o Determine how the documents and other
information will be received and entered
into the database system.
o Determine the types of printouts and
summary reports to be extracted from the
database.
o Update the name and address list as new
information becomes available (see Section
3.1.6).
PROBLMES/RESOLUTIONS
It is difficult to track necessary
information.
Do not "clutter" the database
printouts with any information not
required.
81
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Inaccurate data were entered.
As with all database work, use a
rigorous quality assurance program by
creating printouts that will display all
of the latest edits and entries for
quality control review.
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3.2.13 INVENTORY DATABASES
OBJECTIVE
The objective of this task is to develop a computer-based information management system
for organizing and controlling case document files and for summarizing case-specific
information contained in the documents. The system should provide three litigation
support services: (1) an efficient way of locating and retrieving documents by keyword,
subject, author, or date; (2) a document control system to assure that documents are not
lost or misplaced; and (3) a means for assuring an orderly and timely response to
discovery orders and to voluntary document exchanges.
PROCEDURE
Process
Obtain
Documents
Create Document
Coding Forms
Develop Key
Words
Create Inventory
Database
o Locate all relevant documents.
o Determine how the data are to be used
and what information needs to be
extracted. The ultimate needs of all users
must be reflected in the system, and the
system must be able to handle the ultimate
size of the database.
o If a contractor is conducting the search,
meet with the EPA primary contact and
others who will be using the system
regarding:
Type of software available
Type of hardware available
Type of programming
Product (contractor-generated reports
or system for EPA's use)
o Screen documents for relevance
(contractors should work with EPA to
determine the criteria).
o Identify duplicate documents. Eliminate
the documents or enter them into the
system as duplicates.
o Number the documents (use a Bates stamp
or microfilm frame number).
o Create document coding forms.
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Possible field definitions include:
Document location
Document number
Document type
Originator
Author(s)
Origination date
Title
Subject(s) or key words
Addressee
Number of pages
Document condition
Method obtained
Document source (EPA, state,
PRP)
Recipients
Attachments
Miscellaneous
Develop key words to reflect case issues,
relevant technical or scientific information,
or discovery issues.
Create the inventory database using
software such as dBASE III or LOTUS 1-2-
3, or mainframe hardware and software
systems if necessary. (Two systems
already developed and in use are (1) the
Superfund Litigation System (SLS) in
Region 2 and (2) the PRPBASE System in
Region 5.)
Develop a coding manual
Train coding personnel
Extract data
Code the information for generators,
document types, and so on
Conduct quality check
Enter data
Conduct edit runs
Prepare pilot printouts
Prepare draft and final reports
Conduct various sorting and database
manipulations
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PROBLEMS/RESOLUTIONS
The inventory database was begun before
all documents were available and without
input from all who will use the database.
Subsequent changes in the established
fields and procedures were required.
Obtain as many documents as possible
before beginning, and obtain input
from any persons who may use the
database.
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3.2.14 TRANSACTIONAL DATABASES
OBJECTIVE
The objective of this task is to develop a transactional database for storing information
contained in transactional documents. The nature of the waste disposal industry often
requires that several transactions be made before final disposal of a hazardous waste.
Transactions often involve generators conveying hazardous waste to haulers, and haulers
conveying hazardous waste to disposers. Records of these transactions, such as bills of
lading or purchase orders, may contain information regarding the type, volume, and
disposal method of the waste. Summaries of the database information can display, where
available from the documentation, evidentiary information on the types of wastes disposed
of, the generators and haulers of the hazardous materials, the total volume of each waste
type, the quantity of each waste type by generator or hauler, and the ranking of each
generator or hauler according to total quantity of hazardous waste disposed of. Example
7 in Appendix I, Sample Reports, is a report explaining the preparation and results of a
transactional database.
PROCEDURES
Initial Information
Needs
Determine how the database is to be used and
AH Relevant
Documents
Requirements
Locate all relevant documents.
what information needs to be extracted from
the transactional records. The needs of all
users must be reflected in the system.
Database
If a contractor is conducting the search, meet
with the EPA primary contact and others who
will be using the system regarding:
Type of software available
Type of hardware available
Level of programming
Product (contractor-generated reports or
system for EPA's use)
Data quality criteria and quality control
procedures
86
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Process
Number
Documents
Create Document
Coding Forms
Select Key Words
Organize
Documents
Create
Transactional
Database
o Screen documents for relevance.
o Identify duplicate documents. Either eliminate
duplicate documents or enter them into the
system as duplicates.
o Number documents using a Bates stamp,
microfilm frame number, or other system.
o Create document coding forms.
o Define the data fields. Possible field definitions
include:
Document number
Generator
Hauler
Waste type
Waste quantity
Date
Site
Attachments
Miscellaneous
o Select key words to reflect case issues,
relevant technical or scientific information, or
discovery issues.
o Sort documents into folders according to
generator.
o Sort files chronologically within a folder to
identify all documents that pertain to one waste
shipment.
o Place non-waste documents in the back of
folders (these will not be included in the
database).
o Create transactional packets (each shipment
constitutes a packet; a packet may consist of
several waste types).
o Create a transactional record for each
waste in a packet.
87
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o Develop criteria for evidence of shipment
(invoices and other supporting documents
with waste manifests). Contractors should
confirm with the EPA primary contact the
approaches to be used in dealing with
discrepancies and gaps in the documents.
o Create the transactional database using software
such as dBASE III or LOTUS 1-2-3, or
mainframe hardware and software systems if
necessary. (Two systems already developed and
in use are (1) the Superfund Litigation System
(SLS) in Region 2 and (2) the PRPBASE System
in Region 5.)
Develop coding manual
Train coding personnel
Extract data
Complete document coding forms
Conduct quality check
Enter data
Conduct edit runs
Prepare pilot printouts
Prepare draft and final reports
Conduct various sorting and database
manipulations
Prepare user manuals and technical
documentations
State assumptions
PROBLEMS/RESOLUTIONS o Several factors increase the time and cost of
developing a database. These factors include
designing the database before all documents are
available, not getting input from all users,
adding fields, and changing procedures after the
system is in place.
These problems should be minimized
through careful planning during the
initial design of the database.
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Inaccurate data are entered.
Institute a rigorous quality control (QC)
program using printouts of the latest
edits and entries for QC review. It is
more efficient, from both a scheduling and
budgeting aspect, to institute the QC
procedures at the beginning of a project
than to correct inaccurate data and rerun
programs at a later date.
Illegible documents or entries may be
encountered; waste units may not be included
with the quantities.
Obtain other documents for the same
shipment that provide this information.
Request this specific information from
the PRP.
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3.2.15 COMPLIANCE HISTORY
OBJECTIVE
This task involves reviewing records and information to identify violations of hazardous
waste and other environmental laws and regulations. A profile can then be prepared of
the PRP's compliance history. This research also may yield the names of individuals in
state agencies and Attorney Generals' offices who can provide facts supporting a party's
identification as a PRP.
PROCEDURE
Initial Information
Needs
o Scope of
Research
Process
o
Obtain
Background
Information
Develop
Compliance
History
Identify the particular sites or PRPs to
research and the scope of the research to
be conducted.
The following steps are required to develop a
compliance history:
o Obtain records and information from public
and private sources (see Sections 3.1.1,
3.1.5, and 3.2.4). Private sources may have
records not available through other
sources, such as the operator's meeting
minutes, operator's logbooks, and internal
memoranda.
o Review and analyze the information
concerning the PRP's method of operation
and compliance with applicable federal,
state, and local laws and regulations.
Useful records may include:
Inspection reports (such as RCRA,
TSCA, NPDES, CAA, CWA, FIFRA,
SDWA, and OSHA compliance
inspections)
Violation notices
Legal actions for violation of laws
and regulations
Correspondence with regulatory
agencies
o Develop information through alternative
methods such as interviewing former
employees and interviewing residents living
nearby (see Section 3.2.5).
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Develop a profile of the operator's
compliance with relevant environmental
requirements (regulations and permits).
Determine, if possible, whether the
compliance history affects the operator's
identification as a PRP.
PROBLEMS/RESOLUTIONS
A lengthy violation history found in
documents might have little to do with
relevant CERCLA site activity. For
example, notices of violations for blowing
litter are not relevant to ground-water
contamination at the site.
Go through all documents to analyze
the information.
Briefly summarize non-CERCLA
violations such as blowing litter.
C
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3.2.16 FINANCIAL ASSESSMENT
OBJECTIVE
The objective of a financial assessment is to obtain the necessary financial and economic
information and analyses to facilitate enforcement actions. Results from financial
assessments can be used to project the capability of a PRP to address an environmental
problem, or a violator's ability to pay a penalty. Knowing such information, EPA can
better formulate an appropriate negotiation and litigation strategy. A financial
assessment should be conducted with an understanding of the EPA Superfund Settlement
Policy and EPA Civil Penalty Policy. Typically, financial assessments are conducted to
determine the ability of PRPs to respond to cleanup requests and to pay penalties. Both
the EPA Superfund Settlement Policy and EPA Civil Penalty Policy contain provisions
regarding the ability to pay as an enforcement criteria. The financial assessment goes
beyond the financial status (see Section 3.1.3) by including an analysis of the information
collected.
PROCEDURE
Process
o
Gather Financial
Information
Research PRP's
Business
Formulate a
Baseline
Assess PRP's
Financial
Condition
The thrust of a financial assessment is to understand
the financial position of a company and to project
its changes under different scenarios. Financial
information may be very difficult to obtain if the
company is not publicly held. The key steps in
conducting a financial assessment are listed below.
o Gather the firm's financial information.
Three years of annual or, preferably,
quarterly reports will form a strong
basis for evaluating and projecting a
PRP's financial position. Types of
information are:
Balance sheets
Income statements
Statements on uses and sources
of funds
Sources of information include:
Securities and Exchange
Commission (publicly held
companies are required to
submit annual reports)
PRP (in consultation with EPA)
Dun & Bradstreet business
surveys
State corporation or business
licenses and tax assessment
divisions
Clients and suppliers of the firm
RCRA files, if they exist
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Understand the business of the PRP in
terms of:
Management
Ownership
Marketplace strategy
Industry outlook
Formulate the baseline for the assessment
(the PRP's financial performance without
the environmental liability).
Develop a pro forma balance sheet,
income statement, and uses and
sources of funds for the appropriate
period of time.
Clearly define and report all
assumptions.
Produce key financial ratios for the
coming years, such as:
Liquidity
Asset management
Fund management
Debt management
Profitability
Market value
Assess the impact of EPA enforcement
actions.
Charge the necessary environmental
expenditure to the current assets
account.
Interpret the effects of these charges
on the PRP's financial condition.
Assess the PRP's financial condition
relative to firms in a similar business.
Compare key ratios to ones found in
national surveys under the same Standard
Industrial Classification (SIC) code.
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PROBLEMS/RESOLUTIONS
A PRP may enter bankruptcy proceedings
if forced to pay a penalty or compliance
cost.
Conduct a bankruptcy analysis.
Determine the PRP's liquidation
value.
Determine the likelihood of
EPA asserting its claim in
a bankruptcy court.
Appraise the PRP's assets and
examine the seniority of
the outstanding liabilities.
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3.2.17 GENERATOR RANKING
OBJECTIVE
The objective of this task is to rank generators by the type and amount of wastes
disposed of at a site. This is an important element of EPA's CERCLA Settlement Policy,
which provides that the quantity and type of wastes contributed to the site by various
PRPs can be considered in evaluating settlement offers. Moreover, EPA has committed to
releasing information about the volume and nature of wastes to PRPs to facilitate
settlement discussions. However, the accuracy of this ranking system depends on the
completeness of the records available. EPA can release information on the volume and
nature of wastes only to the extent identified as being sent to the site. Example 8 in
Appendix I, Sample Reports, includes three tables created during the generator ranking
task.
PROCEDURES
Initial Information
Needs
o Types and
Quantities of
Waste
o Transactional
Database
Obtain sufficient information on the types
and quantities of waste disposed of at the
site.
Search for all available documents
concerning types and quantities of waste
disposed of by generator.
Establish a transactional database (see
Section 3.2.14).
Process
o
Select
Comparison Units
Rank Generators
Select appropriate comparison units.
Choose the most appropriate unit of
waste depending on the type of waste
(volume versus weight) and the type
of information available (weight
versus dollars).
Determine whether weighting factors are
applicable and available. Examples of
situations where a weighting factor may be
appropriate include:
When a small quantity of one waste
may be significantly more toxic than
a large quantity of another waste.
When a small quantity may be highly
mobile or persistent, thus resulting in
greater exposure.
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When a small quantity may be more
expensive to clean up, dispose of, or
treat than a larger waste quantity.
Rank generators based on quantities of
waste and weighting factors when
appropriate.
PROBLEMS/RESOLUTIONS
Ranking is started (establishing fields and
procedures) before (1) entering all
information in the database, (2) obtaining
all comments and input from users, or (3)
considering all possible uses of
information.
Solicit input from all persons who
may use the information.
Consider all possible uses.
Many types of waste, including both
hazardous and non-hazardous, are listed in
the waste inventory.
Consult the EPA primary contact to
determine if the ranking should be
based on all wastes, only hazardous
wastes, or some combination
identified by the primary contact.
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3.2.18 PROPERTY APPRAISAL
OBJECTIVE
EPA may need to assess the monetary value of certain contaminated real property to
support remedial actions evaluated or undertaken in accordance with the National
Contingency Plan. Contemplated remedial actions might include Fund-sponsored cleanup,
possibly including purchasing land and relocating residents. Appraisals of the property
"as is" (before remedial action) and "as modified" (after remedial action) are often
required. Property appraisals can also be included during a PRP search if the researcher
is trying to determine the assets of an identified PRP. Because professional real estate
appraisals may be expensive, each appraisal should be specifically authorized by the EPA
primary contact when a contractor is conducting the search. Alternatively, less costly
estimates of the "as is" property value can sometimes be developed by those other than
professional real estate appraisers, as indicated in Section 3.1.3, Financial Status.
PROCEDURES
Initial Information
Needs
o Authorization to
Retain Appraiser
o Names of
Government
Personnel
Involved With
Case
Before proceeding with the property appraisal, the
researcher needs to obtain the following:
o Specific authorization to retain a real
estate appraiser to provide a property
assessment.
o Names of all EPA and DOJ personnel who
may be using the information obtained
from the property appraisal. Because
appraisal assumptions affect the usefulness
of the value estimates, it is important for
the researcher to be aware of all
assumptions involved.
Process
o Develop
Assumptions
o Retain Appraiser
o Review
Preliminary Draft
Each of the following steps should be completed to
provide a usable value estimate.
o Develop, with input from EPA and DOJ
staff, a complete set of assumptions to be
applied when performing the appraisal.
The assumptions address issues including,
but not limited to:
Date on which the property's value is
to be estimated
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"As is" and "as modified" property
valuation
Clear and complete descriptions
of the property
modifications
Consideration of "highest and
best use" of modified
property (that is, its most
productive appropriate use)
Existence or absence of fee simple
title that is free and clear of all
debts, liens, and encumbrances
Existence or absence of contamination
Select and retain a real estate appraiser.
Obtain recommendations for a real
estate appraiser from:
Chamber of Commerce
Member listings of
appraiser associations
such as American
Institute of Real Estate
Appraisers
Long distance yellow pages
information
Contact several real estate appraisers.
Describe the planned research
Generally describe assumptions
Obtain written cost estimates
Obtain appraiser's
qualifications and
credentials
Screen for conflicts of interest
Select a real estate appraiser
(contractors should clear the choice
with EPA).
Prepare a contract that includes a
written list of assumptions.
Set a not-to-exceed ceiling on costs
unless first notified.
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Contractors should maintain close and
continuous contact with EPA and the real
estate appraiser.
Review the preliminary draft of the
appraisal to determine conformance with
assumptions.
Transmit comments (contractor and EPA)
to the appraiser prior to completion of the
final appraisal.
PROBLEMS/RESOLUTIONS
A property appraisal may not be completed
in time for inclusion in PRP search report.
Clearly explain scheduling
requirements to the appraiser prior to
signing a contract. If the time frame
cannot be met, select another
appraiser.
The extent of "coroparables" (such as
nearby, comparable property recently
subjected to value assessment) is often
learned after research is underway.
Maintain close contact among all
parties involved (EPA, appraiser,
contractor) to define the comparable
search area and to be aware of
scheduling and budgetary impacts.
Site access is necessary to complete the
property appraisal.
Contact the EPA primary contact to
determine if site access is really
necessary. The Regional Counsel
should be consulted before a
determination is made. If access is
required, EPA should contact the site
owner and request written consent.
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Appendix A
Glossary and Acronyms
-------
APPENDIX A
GLOSSARY
Administrative Order on Consent
An administrative order issued pursuant to
authorities provided under CERCLA or RCRA for
response actions. This is an administrative order
which is consented to by the recipient in writing.
Bates Stamp
Bill of Lading
CERCLA
A hand-held numbering machine that will stamp
consecutive numbers. Useful when assigning
reference or index numbers to a set of documents.
A receipt issued by a carrier to a shipper listing
the goods received from the shipper for shipment.
The Comprehensive Environmental Response, Com-
pensation, and Liability Act (CERCLA), passed in
1980 and commonly known as "Superfund." CERCLA
gives the federal government the power to respond
to releases, or threatened releases, of any hazardous
substance into the environment as well as to a
release of a pollutant or contaminant that may
present an imminent and substantial danger to
public health or welfare. CERCLA established a
Hazardous Response Superfund (formerly the
Hazardous Substance Trust Fund), available to
finance responses taken by the federal government.
Chain-of-Custody
Evidence of analytical data is related to samples
taken at particular locations and times. In offering
real evidence, the offerer accounts for the custody
of the evidence from the time it is gathered until
the time that it is offered in evidence. If this
custody "chain" is broken, the admissibility of the
evidence can be challenged.
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Civil Investigator
Cleanup
The Headquarter civil investigator is responsible for
planning the national strategy. The regional civil
investigators are responsible for planning regional
strategy that obtains the national goals and follows
the national strategy.
The elimination, reduction, or containment of
pollutants associated with a site in accordance with
the National Contingency Plan.
Conditional Sales Contract
A contract between buyer and seller, where the
seller reserves title to the property until the buyer
fully pays for the property.
dBASE III
Death Certificate
Declaration of Trust
An electronic relational database system for the
IBM and Mackintosh class of microcomputers sold
by Ashton Tate, Inc. dBASE III stores a collection
of related information or data in a record. A
record is similar to an index card. A group of
records (index cards) makes up a database file.
Data from these files can be deleted or edited, or
new information can be added. Data from the files
can be sorted, manipulated mathematically, and
summarized in printed reports. dBASE III offers
similar capabilities as LOTUS 1-2-3; however, dBASE
III has a more powerful programming language that
was designed for databases.
An official document evidencing that a person died.
A statement by the person named as owner of land
on legal records that he holds the land in trust for
the use of another person.
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Deed
A legal document which transfers a property.
Identifies property owner and partial date of
ownership, and describes the property owned.
Easement
A right afforded a person or entity to make limited
use of another's real property. Another term for
easement is "right of way." Easements may identify
additional parties that had access to a site.
Expanded Site Investigation
Investigation of a site that requires field work
including sampling. This field work will provide
data in preparation for Superfund activities at the
site.
Fee Simple Title
Title to an estate of which the owner is entitled to
the entire property, with unconditional power of
disposition during his life, and descending to his
heirs and legal representatives upon his death.
Such estate is unlimited as to duration, disposition,
and descendability.
Gate Logs
Logs maintained by a site operator at the entrance
to a site. Information on the logs may have been
entered by a site employee or by truck drivers as
they entered the site. Information may include
hauling company names, truck driver names, delivery
dates, waste type, and waste quantities.
Grant
A grant transfers land to someone other than the
person making the grant. A grant may identify the
site's owner as of a certain date.
Hazard Ranking System
The method regulatory authorities use to set
priorities for response actions under CERCLA. The
Hazard Ranking System (HRS) ranks a site by means
of a mathematical rating scheme that combines
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probability and magnitude (the potential of a release
to cause hazardous situations and the severity or
magnitude of these potential impacts). Using the
numerical scores from this scheme, EPA and the
states list sites by priority and allocate resources
for site investigation, enforcement, and cleanup.
The HRS is most commonly referred to as the Mitre
model after its developer, the Mitre Corporation.
Sites receiving high HRS scores -- currently greater
than 28.5 -- appear on the National Priorities List.
(See Preliminary Assessment/Site Investigation.)
Hazardous Superfund Response
The Fund, formerly the Hazardous Substance
Response Trust Fund, largely financed by an
environmental tax on industry (i.e., chemicals,
petrochemicals, oil) that provides operating money
for government financed actions under CERCLA.
The Fund is a revolving fund in the sense that it
enables the government to take action and then
seek reimbursement later, or to clean up sites for
which responsible parties with sufficient cleanup
funds cannot be found. Money recovered by
CERCLA Section 107 is returned to the Fund
rather than the U.S. Treasury.
Land Trust
Lease
A method of holding real estate. When a land trust
is used, the legal title to the land is listed as the
trustee on all the legal records. However, by use
of a trust agreement, the beneficiary of the trust
usually maintains management and control of the
real property.
A contract by which a landlord rents lands,
buildings, and so on to a tenant for a specified
time. A lease may provide information on site
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Lien
operations and operators for various periods of time
in the site's history.
A legal claim on another's property as security for
the payment of a just debt. A lien may identify
the site's owner and may give an indication of the
owner's financial status.
Lotus 1-2-3
An electronic spreadsheet for the IBM class of
microcomputers sold by Lotus Development
Corporation. Lotus 1-2-3 stores information
electronically in columns and rows. The information
in the columns and rows can be manipulated. Text
can be sorted and numerical data added, subtracted,
and multiplied within seconds. Data can be printed
in tables or graphs. Lotus 1-2-3 offers similar
capabilities as dBASE III; however, Lotus 1-2-3's
principal application is accounting models and its
programming language is not designed for large and
complex transactional databases.
Mortgage
A security interest in land created by a written
instrument. Mortgages are usually created to secure
payment of a debt. A mortgage may identify the
site's owner and may give an indication of the
owner's financial status.
National Contingency Plan
A plan that provides for efficient, coordinated, and
effective response to discharges of oils and releases
of hazardous substances of the Comprehensive
Environmental Response Compensation and Liability
Act and the Clean Water Act.
National Priorities List
The National Priorities List (NPL) establishes
priorities for remedial response actions throughout
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Notice Letter
the country through government enforcement action
or cleanup (see Hazard Ranking System).
EPA's formal notice to PRPs that CERCLA-related
action is to be undertaken at a site for which those
PRPs are considered responsible. Notice letters are
generally sent at least 60 days prior to scheduled
obligation of funds for a remedial investigation/
feasibility study at a designated site. The intent is
to give PRPs sufficient time to organize and to
contact the government.
On-Scene Coordinator
An individual, designated within an EPA region, who
coordinates and directs Federal responses under
Subpart E and removals under Subpart F of the
NCP. The on-scene coordinator (OSC) is
responsible for developing contingency plans for
federal response in the OSC's area. In some
regions, the OSC has additional responsibilities
which include those defined under Remedial Project
Manager. (See Remedial Project Manager.)
Owner or Operator
". . . (i) In the case of a vessel, any person owning,
operating, or chartering by demise, such vessel, (ii)
in the case of an onshore facility or an offshore
facility, any person owning or operating such
facility, and (iii) in the case of any facility, title or
control of which was conveyed due to bankruptcy,
foreclosure, tax delinquency., abandonment, or
similar means to a unit of State or local
government, any person who owned, operated, or
otherwise controlled activities at such facility
immediately beforehand" (CERCLA; Title 1, Section
101(20)(a)). Potentially responsible parties can
include both present and former owners and
operators.
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Partial Release of Deed
of Trust and Mortgage
Person
Potentially Responsible Parties
A release of specified parcels of land from mortgage
or trust. A partial release is used when not all
land originally subject to mortgage or in trust is
released from mortgage or trust.
An individual, trust, firm, joint venture, corporation
(including a government corporation), partnership,
consortium, commercial entity, association, U.S.
government, state, municipality, commission, political
subdivision of a state, or any interstate body.
Those identified by EPA as potentially liable under
CERCLA for cleanup costs. PRPs may include
generators and other persons who arranged for
disposal or treatment, present or former owners or
operators of certain facilities where hazardous
substances have been located or disposed of, as well
as those who accepted hazardous substances and
transported them to certain facilities.
Preliminary Assessment/
Site Investigation
The preliminary assessment (PA) is the first step
taken after EPA or a state discovers a site. It
involves reviewing existing information and
assessing current site conditions to determine if a
potential threat to the public or the environment
exists. A PA usually involves a site visit. The
need for a site inspection (SI) is based on the
results of the PA.
The purpose of a SI is to gather additional data
sufficient to rank the site using the Hazard ranking
System (HRS), and to aid in making judgements on
what further actions are required at the site.
Historically, an SI involves a visual inspection of a
site and usually includes limited sample collections.
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A current initiative is underway to expand the
scope of an SI to provide better support to the
development of the remedial investigation (RI) work
plan and scope. This expanded SI (ESI) would also
provide better support for the MRS, NPL, and
related program needs.
Primary Contact
The person at EPA who has primary responsibility
for a work assignment. Each work assignment
issued to a contractor has an EPA primary contact.
The contractor is responsible to this contact for the
work assignment. All changes in the scope of work
and tasks to be conducted must be cleared with the
primary contact. Direction from other EPA
personnel to the contractor must also be cleared
with the primary contact.
Proposed NPL Sites
Proposed NPL sites are sites which have Hazard
Ranking System scores above 28.5 and are under-
going public comment, but have not yet been added
finally to the National Priorities List.
Pro Forma Balance Sheet
A balance sheet based on assumed or anticipated
facts (usually short form).
Quit Claim Deed
A deed of conveyance, operating by way of release,
that is intended to pass any title, interest, or claim
that the grantor may have on the premises, but not
professing that such title is valid, and not
containing any warranty or covenants for title.
Record of Decision
Published by the government after completion of a
remedial investigation/feasibility study, the Record
of Decision (ROD) identifies the remedial alternative
chosen for implementation at a Superfund site.
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Remedial Action
Remedy or remedial action or measure. Actions
consistent with permanent remedy taken instead of,
or in addition to, removal action to prevent or
minimize the release or threatened release of
hazardous substances so that they do not migrate to
cause a substantial danger to present or future
public health, welfare, or the environment. Includes
a variety of on-site measures (storage, perimeter
protection, recycling or reuse, dredging, excavation,
etc.), off-site disposition, required monitoring, and
the costs of permanent relocation of affected popu-
lations when deemed necessary by the President.
Remedial Investigation/
Feasibility Study (RI/FS)
An extensive technical investigation conducted
by the government or by PRPs to investigate the
scope of contamination (RI) and to determine the
remedial response, consistent with the NCP, to be
implemented at a Superfund site (FS). An RI/FS
may include a variety of activities such as
monitoring, sampling, and analysis.
Remedial Project Manager
An individual, designated within an EPA region, who
coordinates, monitors, or directs remedial or other
response activities under Subpart F of the NCP.
The counterpart of the On-Scenc Coordinator for
removal actions (see On-Scene Coordinator).
Remedy
Removal
See Remedial Action.
Actions taken involving cleanup or removal of
released substances from the environment; actions in
response to the threat of release; actions that may
be necessary to monitor, assess, and evaluate the
release or threat; disposal of removed material; or
other actions needed to prevent, minimize, or
mitigate damage to public health or welfare or to
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the environment. Removal also includes, without
being limited to, security fencing or other measures
to limit access, provision of alternative water
supplies, temporary evacuation and housing of
threatened individuals not otherwise provided for,
action taken under Section 104(b) of CERCLA, and
any emergency assistance provided under the
Disaster Relief Act.
Restrictive Covenants
A provision in a deed limiting certain uses of the
property.
Schedule of Beneficiaries
A list of beneficiaries of a trust.
Site Discovery
The point at which the EPA becomes aware of a
site.
Subpoena
A command to appear at a certain time and place to
give testimony on a certain matter or produce
documents.
Superfund
See CERCLA.
Superfund Amendments and
Reauthorization Act (SARA)
The Superfund Amendments and Reauthorization
Act (SARA) was signed into law on October 17,
1986. SARA leaves the basic framework of
Superfund but makes several policy and management
changes that reflect EPA's experience in
administering the original law. SARA emphasizes
the importance of developing permanent solutions at
hazardous waste sites and imposes requirements for
setting cleanup standards. SARA establishes goals
and mandatory schedules that EPA must follow for
various phases of remedial response. SARA also
sets out procedures for negotiating settlements with
potentially responsible partcis for conducting
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remedial response actions. The new law increases
Superfund to $8.5 billion over the next five years
and broadens the fund's tax base.
Title Insurance
Insurance against loss or damage resulting from
defects or failure of title to a particular parcel of
realty, or from the enforcement of liens existing
against it at the time of the insurance.
Trustee Certificate
A written acknowledgment that certain land is in
trust and that a certain person is trustee.
Warranty Deed
Windshield Survey
A deed in which the grantor guarantees to the
grantee that the granter has title to the land free
of any other possible claims. This document will
identify the owner of a site at a particular point in
time.
Survey conducted to obtain names and addresses of
industries located near a site. The researcher walks
or drives the area surrounding the site, noting
which industries could be PRPs. Normally a subtask
of the industrial survey task. See Section 3.2.9,
Industrial Survey.
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ACRONYMS
AOC - Administrative Order on Consent
CAA - Clean Air Act
CBI - Confidential Business Information
CERCLA - Comprehensive Environment Response, Compensation, and Liability Act
CWA - Clean Water Act
DCF - Document Coding Forms
DOJ - Department of Justice
EMSL - Environmental Monitoring Systems Laboratory
ERA - Expedite Response Action
ERCS - Emergency Response Cleanup Services
ERT - Emergency Response Team
ESI - Expanded Site Investigation
FIFRA - Federal Insecticide, Fungicide, and Rodenticide Act
FIT - Field Investigation Team
FOIA - Freedom of Information Act
FS - Feasibility Study
HRS - Hazard Ranking System
LTRA - Long Term Remedial Action
NEAR - Non-Binding Preliminary Allocation of Responsibility
NCP - National Contingency Plan
NEIC - National Enforcement Investigation Center
NPDES - National Pollutant Discharge Elimination System
NPL - National Priorities List
O&M - Operation and Maintenance
OECM - Office of Enforcement and Compliance Monitoring
OSC - On-Scene Coordinator
OSHA - Occupational Safety and Health Administration
OWPE - Office of Waste Programs Enforcement
PA - Preliminary Assessment
PCB - Polychlorinated Biphenyls
PI - Private Investigator
PRP - Potentially Responsible Party
QA - Quality Assurance
A - 12
-------
QC
RA
RCRA
RD
REM
RI
ROD
SARA
SDWA
SEC
SETS
SFFAS
SI
SIC
SW
TES
TSCA
UCC
ACRONYMS (Continued)
Quality Control
Remedial Action
Resource Conservation and Recovery Act
Remedial Design
Remedial Planning
Remedial Investigation
Record of Decision
Superfund Amendments and Reauthorization Act
Safe Drinking Water Act
Securities and Exchange Commission
Site Enforcement Tracking System
Superfund Financial Assessment System
Site Investigation
Standard Industrial Classification
Solid Waste
Technical Enforcement Support
Toxic Substances Control Act
Uniform Commercial Code
A - 13
-------
Appendix B
Activities Checklist
-------
POTENTIALLY RESPONSIBLE PARTY SEARCH CHECKLIST
Task
LABOR HRS
Range
TASK SELECTION CRITERIA/CONDITIONS
Note: Tasks 3.1.1 through 3.1.10 are presented here in the order they are generally performed as opposed to
alphabetically as they are in the text. The tasks are presented in this order to assist the researcher in
preparing the scope of work.
3.1.1 [] Agency Record Collection
and File Review
Gather, organize
information.
180-300
Review documents to extract PRP information and
leads. This task is used in most PRP searches.
l.[]Federal
2.[]State
3.[]Local
4. [] Other
Document locations:
Number of pages:
Document locations:
Number of pages:
Document locations:
Number of pages:
Document locations:
Number of pages:
Describe anything unique about the records
(condition of the records, business
confidential, must travel to review, possible
to mail records to contractor, possible
contamination):
3.1.10 [] Title Search (Hours in parentheses reflect subcontracted title research by title company. These
hours are a portion of the total hours listed).
a.(l Simple Title
Search
b.[] Complex Title
Search
c.[] Unknown Title
Search
Regular copies
of recorded
instruments
(deeds, leases,
mortgages)
30-100
(5-50)
110-225
(50-100)
45-350
(10-150)
Included
above
Site involves less than five parcels and less
than 30 years of relevant history.
Site involves more than five parcels or more than
30 years of relevant history.
Contractor will develop a site property description,
estimate title search cost, and discuss with EPA prior
to initiating the title search. May result in either
a simple or complex title search.
Necessary to support site history and PRP list. If
litigation is expected, certified copies (see next
task) are usually required for admissibility.
B-l
-------
POTENTIALLY RESPONSIBLE PARTY SEARCH CHECKLIST
Task
e.[] Certified copies
(deeds, leases,
mortgages)
LABOR HRS
Range
Contractor
Included
above
TASK SELECTION CRITERIA/CONDITIONS
Obtain certified copies if litigation is expected and
case attorney requires certified copies for court
admissibility. (Usually costs about $0.50 - 1.50/page.)
f.[] Chain of Title
20-40
A chronological list of title instruments for
quick reference to title transactions over time.
g.Q Property History
Narrative
30-150
Requested for complex sites when a detailed narrative
description of property history would assist case
development.
3.1.5 []
Interviews with
Government
Officials
1-20/
interview
Interviews required of persons known or suspected to
possess unique information about the site. Interviews
generally conducted by phone unless travel is specifi-
cally requested. This task is used in most PRP searches.
3.1.8 0
3.1.4
3.1.6
Records
Compilation
90-500
History of
Operations at
Site
3.1.7 [] PRP Status/
PRP History
PRP Name and
Address Update
30-150
0.5-5/
PRP
O.S-5/PRP
Records are located and manually organised to permit
easy access and use. A file system and index are
usually established. Depending on the number of
documents, the data may be computerized. (See 3.2.13
and 3.2.14 for database record compilation tasks.)
A narrative description of site operations through
a specified period of interest is presented in a
report. This history focuses on activities and
parties involved with hazardous wastes. May be
particularly useful if many operators or various
types of operations were involved at the site.
PRPs for which a current addreas is not available are
researched to determine their fate. Names, addresses,
and registered agents are provided for the PRPs and
any successor companies.
Current name and address information is
obtained for identified PRPs. Includes name,
address, registered agent, merge, and name changes.
c
3.1.3 Q Financial Status
Develop financial
information for
public companies.
1.0 Known PRP
(attach list
of names and
addresses).
2-100/
PRP
NEIC can conduct financial status task on publicly
held companies. The contractor can research these
companies if, after NEIC report is received by EPA,
it is determined by EPA that additional information
is needed. The contractor can attempt to develop infor-
mation regarding the financial aiisets of all other PRPs.
B-2
-------
POTENTIALLY RESPONSIBLE PARTY SEARCH CHECKLIST
Task
LABOR HRS
Range
2.(] Contractor-
identified PRPs.
TASK SELECTION CRITERIA/CONDITIONS
Develop financial
information for
private companies
or individuals.
Use Private
Investigator
Financial
record audit
2-100/
PRP
100-ISO/
PRP
This task can provide PRP information such as
a description of corporate financial status,
officers, tax history, and current business
practices. For privately held companies and
private individuals, a private investigator
may be required.
Conducted if PRP internal financial records are
accessible. A certified public accountant is required
to audit these records.
3.1.2 [] CERCLA 104(e)/ 1-10/
RCRA 3007(c) letter
Letters
3.1.9 [] Report 50-300
Preparation
3.2.1 [] Aerial Photographs 10-100
3.2.2 [] CERCLA Subpoena New task
Authority
3.2.3 [] Field Survey
40-200
This task includes formulating potential questions for
PRPs based on gaps observed in available information,
preparing letters with PRP names and addresses, and
reviewing responses for information relevant to PRPs.
PRP reports must include sections on the site
background, project approach, contacts and sources, site
history, PRPs, and conclusions and recommendations
(and other information specified by EPA).
Aerial photographs can provided detailed site information
without accessing the site. Photographs can also be used
to compare site characteristics over a period of time.
This task has not been fully developed to date.
This task is used to gather additional evidence through
field activities such as general field inspection,
document reviews, personal interviews, and drum label
recording. Usually conducted only when there is no
other information available about a site.
3.2.4
PRP Files Review
180-300
Describe anything unique about the records
(such as condition of the records,
business confidential, possible to mail
records to contractor, possible
contamination):
PRP documents, such as operator records, are reviewed
to extract PRP information and leads. This task should
be completed after a review of agency files.
B-3
-------
Task
POTENTIALLY RESPONSIBLE PARTY SEARCH CHECKLIST
LABOR HRS
Range
TASK SELECTION CRITERIA/CONDITIONS
3.2.5 [] Private
Citizen/PRP
Interview
1-20/
interview
Interviews with persons known or suspected to possess
unique information about the site. Shall be conducted
by telephone unless travel is specifically requested.
Detailed interviews, when needed, can be documented by
a transcript.
3.2.6 [] Private
Investigations
10-100
3.2.7 I] SETS
3.2.8 [] Site Sampling
0.5-5/
PRP
20-400
Private investigators can be useful in locating
individuals, developing information regarding closely
held financial assets, and interviewing parties with
knowledge of the site activities. Private investigators
should be employed if a potential for danger exists.
This database may indicate that a PRP has previously
been sent a notice letter and can provide basic
information about a PRP. Thin task should be completed
when no other information is available.
Chemical analysis of samples collected at the site
are used to link a specific identified waste type
with a PRP. Conducted only when analytical results
or other evidence about a PRP are not available.
3.2.9 (] Industrial Survey
40-100
This task identifies PRPs through a survey of local
businesses and a review of various industrial manuals
and directories. This is an indirect method of identi-
fying PRPs and may be difficult to prove if no other
information is available. May serve as a starting
point of more detailed research into disposal practices
of local industries.
3.2.10 [] Waste Stream 40-400
Inventory
3.2.11 [] Process Chemistry 1-5/PRP
Analysis
Compile an accurate inventory of wastes that
were disposed of at the site by reviewing operating
logbooks, analytical reports, and waste stream records.
The process chemistry analysis l:ask is generally
performed after an industrial survey and a waste
stream inventory. This task attempts to link
industries with wastes at a site.
3.2.12 [] Correspondence
Tracking
Databases
200-500
A database is created to keep track of PRPs sent
letters (Notice or Information), whether they responded,
and other information aa specified by EPA. Computerized
databases should be considered for cases with a large
number of PRPs.
B-4
-------
POTENTIALLY RESPONSIBLE PARTY SEARCH CHECKLIST
Task
LABOR HRS
Range
3.2.13 [] Inventory Databases
l.[] With key words
2.[] Without key words
500-1500
250-1000
TASK SELECTION CRITERIA/CONDITIONS
A computer-based information management system is
developed to organize and permit quick retrieval of
documents by key word, author, date, subject, or other
predetermined strategy. Useful for searches with a
large number of documents or if documents must be easily
accessed.
3.2.14 I
3.2.15 []
Transactional
Databases
Compliance
History
400-1500
30-150
Used when a relatively large number of site transactions
are available (500 or more ) or when it is necessary to
rank a large number of PRPs based on quantified site usage
information. (See also 3.2.17 Generator Ranking.)
This task provides a narrative description of aite
compliance status for a specified period of interest
focusing on activities and parties involved with
hazardous wastes.
3.2.16 []
3.2.IT I
3.2.18
Financial
Assessment
Generator
Ranking
Property
Appraisal
TO-HO/
PRP
20-100
50-200/
site
This task provides a more detailed analysis of a
PRP's financial situation than the financial status.
This is usually a work product (printout) from a
transactional database project (see Section 3.2.14).
The ranking orders generators by waste volume
or other comparable units.
Appraisal of site property owned by & PRP which may
have value. Appraisal may focus on contaminated
state or post-remedial state.
B-5
-------
Appendix C
EPA/NEIC Information Services
-------
EPA/NEIC INFORMATION SERVICES
The National Enforcement Investigations Center (NEIC) provides information to
EPA Superfund personnel to enable assessment of a Potentially Responsible Party's (PRP)
financial status. NEIC staff maintain and operate the Superfund Financial Assessment
System (SFFAS) model for publicly held companies and can provide Dun and Bradstreet
reports for those companies (usually privately held) for which an assessment cannot be
done.
The SFFAS is an automated financial model intended to be used as a tool to assist
enforcement personnel in negotiating with PRPs. It was designed to (1) calculate the
amount of remedial action costs a company can afford to pay and (2) provide a concise
financial evaluation of the company. The model has two components. First, it
calculates the PRP's "ability to pay" by measuring the cash flows from the company's
operations and the variability in these cash flows to determine the company's ability to
maintain its current business and pay the remedial action costs. A table is generated
that indicates the probability that a given amount of cash will be available to fund a
remedial action. Second, it uses three standard financial ratios to assess whether
additional borrowing by the firm may be feasible. These ratios are also used to alert
Superfund enforcement personnel to possible defenses the company may use to argue
that it is unable to pay remedial action costs. The SFFAS model requires a minimum of
three, and preferably five, years of annual data on net income and depreciation. In
addition, data on financial condition for the most recent year are required, including
current liabilities, long-term liabilities, net worth, interest expense, and income tax rate.
The SFFAS model was intended to be used as a tool to assist enforcement personnel in
negotiating with PRPs.
Because the SFFAS model requires specific financial data and this data is usually
not available for privately held companies, NEIC can provide Dun and Bradstreet reports
for these companies. The Dun and Bradstreet report typically provides brief financial
data, such as annual sales, net worth, and net profit/loss, depending on what the owner
or chief executive provides to Dun and Bradstreet. However, the Dun and Bradstreet
report may also include other important information, such as:
o Business done by the company
o Corporate history
C-l
-------
o Subsidiaries and affiliates
o Plant locations
o Principals (president, vice-president, etc.)
o Bankruptcy filings
Finally, NEIC maintains an automated file that contains a listing of all PRPs for
which Superfund financial assessments have been conducted. Information from this file
can be retrieved by individual PRP name and by site name. This is useful in
determining PRP liabilities at other Superfund sites.
To request information, EPA Superfund enforcement personnel should call the NEIC
Information Services Section at FTS 776-3219. Since financial assessments are
considered attorney work product, it is necessary to give the case attorney's name when
requesting information. These services are available solely to EPA Superfund
enforcement personnel in support of the Superfund enforcement program, and any
requests for financial data must be made through the Regional Superfund offices.
Turn-around time can vary, depending upon the number of PRPs for which financial
assessments are needed. For example, it can take several weeks to gather the financial
data and provide assessments for a site where several hundred PRPs have been
identified, but only a day or two for a site where 10 or less have been identified.
Examples of an SFFAS and a Dun and Bradstreet report follow.
NEIC has access to a variety of automated information systems. For information
about these systems, call the Information Services Section at the above number.
c
C-2
-------
" BE SURE XAME, BUSIXESS AXD
.^ADDRESS HATCH YOUR FILE.
AKS'-'IF.IXG
IX2UIRY
S ?i »«***^rv
t, -< /._i IX
DUXS = 08-737-2512'
B-D CHEKICAL CO IXC
699 DEXARGO nARKET
AXD BRAXCH(ES) OP. DIVISIOXCS)
DEXVER CO 80216
TEL= 303 296-3800
DATE PRIXTED
KAY 23 1986
HFG cusion
CHEniCALS
SIC KOS.
28 69 51 61
Sl'nnARY
RATIKG DD3
CHIEF EXECUTIVE: BRUCE HAYXE XELSOX, PRES
STARTED
PAYMENTS
SALES
WORTH r
EMPLOYS
HISTORY
FIXAXCIXG
COKDITIOK
TREXD
1976
SEE BELOW
$650-730,000
CPROJ)
SUO.675
10(10 HERE)
CLEAR
SECURED
FAIR
UP
PAYHEXTS CAmounts nay be rounded to nearest figure in prescribed ranges)
REPORTED PAYIXG HIG« XOW PAST SELLING LAST SALE
04/86
02/86
01/86
12/85
1 1/85
09/85
07/85
RECORD
Ppt
(002)
Ppt
Ppt
Ppt
Slow 30-60
Slow 30
(009)
Slow 20
CREDIT
100
2500
100
1000
750
50
500
250
250
1000
OWES
-0-
-0-
50
1000
-0-
-0-
-0-
-0-
-0-
-0-
DUE
-0-
~o-
-0-
-0-
-o-
-0-
-0-
-o-
-0-
-0-
TERKS
K30
K30
KITHIK
6-12 Hos
1 no,
1 no
2-3 Hos
6-12 nos
6-12 nos
6-12 nos
6-12 nos
2-3 nos
PDATE
03/11/86
Payment experiences reflect how bills are met in relation to the terms granted
In some instances oayment beyond terms can be the result of disputes over merchandise
skipped invoices ate.
In a communication received Feb 21 1986 and signed by Bruce
Xelson Pres Feb 15 1986, it was indicated:
Sales are now $661,590 yearly.
Profits for the past six months uere up.
The present net worth is *90,000.
03/11/86
FIXAXCE
* A FIXAXCIAL SPREAD SHEET OF COttPARATIVES , RATIOS, AXD IXDUSTRY AVERAGES
* HAY BE AVAILABLE. ORBER A DUXS FIXAXCIAL PROFILE VIA YOUR DUXSPRIXT
* TERrtTXAL OR LOCAL DCB OFFICE
X
X
09/23/85
Curr Assets
Curr Liabs
Current Ratio
Other Assets
Worth
Sales
Fiscal statement dated HAR 31 1985:
Cash * 11,696 Accts Pay *
Accts R«c 62,708 Contracts Payable
Inventory U7,U32 Taxes
Har
Fis
31
121
61
60
1 1
UO
S9U
21
> cal
985
836
693
. 97
1U3
680
675
708
5U4
55,825
3,000
2,858
Curr Assets
Fixt £ Equip
Other Assets
121 ,836
9,217
2,M63
Curr Liabs
Xotes Payable
CAPITAL STOCK
P.ZIS.IKZL ZA2.XIXGS
61 ,693
28,685
1 1 ,U09
31,729
Total Assets . 133,516 Total 133,516
From FEB 01 1984 to MAR 31 1985 annual sales $594.708; cost of goods sol
$357,752. Gross profit $236,956; operating expanses $215,412. Nat incor
$21,544. Monthly rent $1,600.
Fire insurance on mose & fixt & bldg $1,000,000.
Prepared from statemant(s) by Accountant1 Carol C Campbell. Prepared from book
CCOXIIXUED)
THIS *fporr FU"HISM(O FUHSU»WT TO COWT«UCT ton TNI fici.usi»f us! 0' TNI suBSCmst* AS out HCTOH TO cowsioto IM CO»NICTIOM v»n» c«tC"
INSURANCE MARKETING OK OTHCD SUSlNtSS DECISIONS CONTAINS iNFOKMaTION COMPILED mOM SOURCES WHICH DUN 4 IRAOSTMCT INC. DOES NOT CO«'«OL >
WMOSt lNfO«»»ATIOH UNLESS OTHJUwtSt INDICATED IN THl «f»OHT HAS NOT BEEN VEHIflEO IN FUKNISHINC THIS »fPO«T DUN 1 MAOSTREET INC IN NO »'
ASSUMES ANT PAUT 0' THE USEX'S BUSINESS RISK DOES NOT GUARANTEE THE ACCURACT COMPLETENESS OR TIMELINESS Of THE INFORMATION PR.OVIOC3
SHALL NOT IE LIABLE FOR ANT LOSS OR INJURY WHATEVER RESULTING 'ROM CONTINGENCIES BE»ONO ITS CONTROL OR »ROM NEGLIGENCE. «: ""'«'
-------
B-D CHZrtlCAl CO IXC
0£XV£I CO
Paae 2
COXSOLIDXTID RIPO*',
(Cont'd) without audit.
0
Item worth shown in summary section was computed after deduction of intangibles,
organization expenses, deposits, totaling $2,463. Fixed assets shown net less $11.36]
depreciation. Submitted Sep 23 1985 by Bruce Wayne Nelson, president
Other assets consist of prepaid expenses, deposits, and organization costs.
Notes payable are due officer; Bank secured by equipment and due in 1986 and 1987; anc
due other.
On SEP 23 1985 Bruce Wayne Nelson, president, submitted the above figures
He submitted the following partial estimates dated SEP 23 1985:
Projected annual sales are * 650-750,000.
Bruce Wayne Nelson stated that sales for the 5 months ended Aug 1985 were wr
5-10X compared to the same period last year. Profit for the period was up 10-202.
Operations for the period were conducted at a profit.
Business is profitable, trend is up, and condition is fair.
PUBLIC FILIXGS
UCC FILINGS
05/13/86 Financing Statement *S6S611 filed 02-05-86 with Secretary, State of CO. Debtor-.
B-D Chemical Co Inc. Denver, CO. Secured Party: Central Bank Of Denver, Denver, CO.
Collateral: all inventory and Products.
02/24/86 Financing Statement 1845705 filed 11-07-85 with Secretary, State of CO. Debtor
B-D Chemical Co Inc. Denver. CO. Secured Party' Central Bank of Denver, Denver, CO
Collateral: specified industrial equipment/machinery.
The public record items reported above under "PUBLIC FILINGS"
and "UCC FILINGS" may have been paid, terminated, vacated
or released prior to the date this report was printed.
HISTORY
09/23X85
Authorized capital consists of 50,000 share:
BRUCE WAYXE XILSOX, PRES
DIRECTOR(S)' THE OFFICERCS)
Incorporated Colorado Mar 1983.
common stock, no par value.
Business started 1976 by Bruce Wayne Nelson individually. 100JC of capital stocl
is owned by Bruce Wayne Nelson.
BRUCE WAYNE NELSON born 1956. 1976 and continues
OPZRATIOX
09/23/85 Manufactures custom chemicals.
Terms are net 30 days. Has 150 accounts.
'United States.
Nonseasonal.
EMPLOYEES:
FACILITIES
good condition.
LOCATION:
BRANCHES:
active with subject
Sells to major oil companies. Tarritor-
10 including officers. 10 employed here.
Rents 7,500 sq. ft. in one story brick and cinder block building i
Premises neat.
Industrial section on side street.
Operates a branch storage warehouse of 1.500 square feet at 80
Denargo Market, Denver, CO.
05-23C9&0 /22) 00000 067 082 K
THIS REPORT FURNISHED PURSUANT TO CONTRACT FOR THE E1CLUSIVE USt OF THE SUMCRHER *S ONE FACTOR TO CONSIDER IN CONNECTION WITH
INSURANCE MARHETINC OR OTHER BUSlNtSS DECISIONS CONTAINS INFORMATION COMPILED FROM SOURCES WHICH DUN t »RADSTREI1 INC DOES HOT CONTROL »"*|
WHOSE INFORMATION UNLESS OTHERWISE INDICATED IN TH| REPORT HAS NOT lEtN VERIFIED IN FURNISHING THIS REPORT DUN 4 "OSTREET INC IN NO WA«
ASSUMES ANT »A«T or THE USER S BUSINESS RISK DOES NOT CUARANTEE THE ACCURACY COMPLETENlSS. OR TIMELINESS Or THE INFORMATION PROVIDED ANf
SHAH. NOT IE LIAM.E FOR »«4T LOSS OR INJURI WHATEVER RISUUmO rRO* CONTINGENCIES iETONO ITS CONTROL OR FROM NfGLlCIHCt. «' '"
-------
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-------
Appendix D
Key Information Source Index
-------
KEY INFORMATION SOURCE INDEX*
Section Research Task Information Source(s)
3.1.1 Agency File Review 1, 2, 7j
3.1.2 CERCLA 104(e) Letters **
3.1.3 Financial Status 3, 5, 6, 7a
3.1.4 History of Operations 1, 2, 3, 7j
3.1.5 Interviews **
3.1.6 PRP Name and Address Updates 3, 4, 8
3.1.7 PRP Status/PRP History 3, 4, 7b, 7h, 8
3.1.8 Records Compilation **
3.1.9 Report Preparation 7j
3.1.10 Title Search 3
3.2.1 Aerial Photographs 7b
3.2.2 CERCLA Subpoena Authority **
3.2.3 Field Survey 6, 7j
3.2.4 PRP File Review 6
3.2.5 PRP Interviews **
3.2.6 Private Investigations **
3.2.7 SETS 7a
3.2.8 Site Sampling 1, 2, 6, 7a, 7j
3.2.9 Industrial Survey 2, 3, 8
3.2.10 Process Chemistry Analysis 1, 2, 3, 6, 9
3.2.11 Waste Stream Inventory 6, 7a
3.2.12 Correspondence Tracking Database **
3.2.13 Inventory Databases **
3.2.14 Transactional Databases 6b
3.2.15 Compliance History 1, 2, 6, 7a
3.2.16 Financial Assessment 4, 5
3.2.17 Generator Ranking **
3.2.18 Property Appraisal 3, 6
* This list includes the sources that, in most situations, have information on PRPs
and sites. Additional sources may be available for a specific PRP or site.
** Research tasks that rely on previously collected information.
D-l
-------
INFORMATION SOURCES
(1) State Agency Sources
Department of Natural Resources
Health Department
Environmental Boards
Attorney General's Office
Water Resources Board
Soil Conservation Board
Bureau of Mines
Sample Documents:
licenses and permits memos
correspondence studies
inspection reports sampling data
(2) Local City/County Agency Sources
Attorney's Office
Health Department
Department of Public Works
Water Pollution Control, Wastewater Management Departments
Planning, Land Use, Engineering Departments
Township Zoning Board
Fire Department
Police Department
Sample Documents:
operation maps list of hazardous materials
disposal guidelines inspection and violation reports
correspondence plat maps and aerial photos
accident report permits and licenses
applications site history memos
(3) Title Information Sources
City or County Clerk or Recorder's Office
Commerce Department
Tax Assessor's Office
Sample Documents:
deeds mortgages and liens
leases easements
grants agreements
addresses legal property descriptions
D-2
-------
(4) PRP Status Information Sources
Secretary of State's Corporation and Archives Offices (SOS)
Local Telephone Directory Assistance
Post Office
Libraries
State Archives
Sample Documents:
articles of incorporation
mergers
registered agents
certificates to do business
articles of dissolution
name changes
annual reports
city directories
Security and Exchange Commission reports
Dun and Bradstreet reports
Moody's Manual of Investments
Standard and Poor's Corporation Descriptions
The Thomas Register of Manufacturers
Notification of Hazardous Waste Activities
DIALOG
(5) Financial Information Sources
Commissioner's Office
Probate Court
Uniform Commercial Code Division (UCC)
Security Exchange Commission (SEC)
Tax Assessor's Office
Libraries
Bankruptcy Court
Sample Documents:
wills financial statements
estate records references to trusts
quarterly reports financial reports
tax assessments corporate business publications
D-3
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(6) Site Records
a.
memos
offers
discs
deeds
receipts
agreements
permits
memoranda
bulletins
charts
drawings
schedules
telegrams
tapes
punch cards
invoices
gate slips
checks
contracts
agendas
leases
toll receipts
licenses
bids
notes
announcements
maps
manuals
price lists
teletypes
summaries
recordings
waste manifests
bills of lading
insurance policies
computer printouts
weight receipts
correspondence
data compilations
proposals
minutes of meetings
books of original entry
calendar or diary entries
reports of scoientific study
reports of investigation
magnetic voice or video
magnetic tapes
accounts receivable
operating logs
ledgers
(7) Federal Agency Source
a. National Enforcement Investigations Center
b. Department of Interior, U.S. Geological Survey
c. Bureau of Mines
d. Bureau of Reclamation
e. Department of Agriculture, Soil Conservation Service
f. Department of Labor
g. Nuclear Regulatory Commission
h. Library of Congress
i. National Archives
j. EPA - Headquarters and Regional Offices*
Sample Documents:
Supcrfund Financial Assessment
SETS
Standard Industrial Classification code
maps/aerial photographs
* EPA headquarters and regional offices have a structured organization. For
example, divisions may be divided into branches, branches into sections, and
sections into units. The researcher should have a clear understanding of the
region's organization and each group's responsibilities. Different groups will
have different types of documents depending on the group's involvement with
the site. During the PRP search, all pertinent groups should be contacted to
obtain documents. If a contractor is conducting the search, it may be
appropriate to have the primary contact act as the liaison between the
contractor and other EPA groups.
D-4
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(8) Miscellaneous Non-Government Sources
Libraries - Public, University
Historical Societies
Local Museums
Newspapers, Network News Stations
Local Chamber of Commerce
Better Business Bureau
Local Telephone Directories
Computer Information Services - DIALOG
Community Action Groups
Sample Documents:
local industrial directories
newspaper articles
trade journals
(9) Process Chemistry Sources
EPA Office of Water and Waste Management
Trade Associations
Kirk-Othmcr Encyclopedia of Chemical Technology
Sample Documents:
effluent limitation guidelines
trade publications
product processing information
D-5
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Appendix E
Information Collection Forms
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DISCUSSION TOPICS FORM
FOR PRIVATE CITIZEN/PRP INTERVIEWS
NOTE: The purpose of this form is to assist the researcher in preparing a site-
specific interview outline. The topics listed below can be eliminated, edited,
or expanded, depending on the PRP search, scope of work, site conditions,
interviewee, background information, and data gaps.
LOCAL RESIDENT
o Address/telephone number
o Years at this address
o Relationship to site
o Sources of information (personal observations, second-hand information,
other)
o Observations of site activities; provide as much detail as possible, such
as date, time of day, persons involved, names on trucks . . . (may need
to subdivide this into different types of activities, such as disposal,
truck entry procedures, fires, spills).
o Names/telephone numbers of other local residents
o Site-specific questions:
SITE OWNER/OPERATOR (LANDFILL)
o Address/telephone number
o Title
o Personal history/association with site (years involved with site, roles,
and responsibilities)
o Years of landfill operation
E-l
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o History of landfill
o Types of waste accepted
o Methods of disposal during entire period of operation
o Recordkeeping procedures
o Availability of records
o Names, addresses, and telephone numbers of generators using the site
o For each generator, describe type of waste, quantities, frequency,
haulers
o Names, addresses, and telephone numbers of haulers using the site
o For each hauler, describe types of waste, quantities, frequency,
generators
o Names, addresses, and telephone numbers of other owners or operators
o For each owner or operator describe years involved, roles, and
responsibilities
o Names, addresses, telephone numbers of site employees
o For each employee, obtain general information, such as responsibility and
years of employment.
o Spontaneous events (fires, spills)
o Contract/relationship between owner and operator; between
owner/operator and generator; between owner/operator and hauler
o Site-specific questions
E-2
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SITE OWNER/OPERATOR (MANUFACTURING FACILITY)
o Address and telephone number
o Title
o Personal history/association with site (years employed at site, roles, and
responsibilities)
o History of site
o Previous manufacturing facilities at site
o Types of waste generated at site
o Methods of disposal during entire period of operation
o Wastes accepted from off-site sources (If yes, obtain detailed information
about these wastes generator, hauler, waste types, quantities, methods
of disposal, dates of receipt.)
o Recordkeeping procedures (log books, operating records)
o Availability of records
o Names, addresses, and telephone numbers of other owners or operators
o Names, addresses, telephone numbers of site employees (If it is a small
facility, you may want names of all employees; if it is a large facility,
you may want names of key personnel.)
o For each employee named, obtain general information such as
responsibility and years of employment
o Spontaneous events (fires, spills)
o Site-specific questions
E-3
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GENERATOR EMPLOYEE (WASTE HAULED AND DISPOSED OF AT SITE)
o Address and telephone number
o Title
o Employment history with generator
o Sources of information (personal observation, second-hand information,
other)
o Wastes (type, quantity, and frequency) disposed of at the site
o Names, addresses, and telephone numbers of haulers (Did the generator
haul its own waste?)
o Generator's role in determining disposal site
o Generator's role in determining disposal method
o Explain site's disposal method (Explain how generator obtained this
information site visit, second-hand knowledge from site operator or
haulers, truck drivers, other.)
o Explain site's history
o Spontaneous events at the site (fires, spills)
o Recordkeeping procedures
o Availability of records
o Names, addresses, and telephone numbers of other persons employed by
this generator
o Names, addresses, and telephone numbers of other generators or haulers,
and their employees that disposed of wastes at the site
o Any additional information on other generators or haulers
E-4
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o Site-specific questions
HAULER EMPLOYEE
o Address and telephone number
o Title
o Employment history with hauler
o Sources of information about hauling procedures and site (Observation,
as observed by a truck driver, second-hand knowledge as relayed by site
operator, other)
o Wastes (type, quantity, and frequency) disposed of at the site
o Names, addresses, and telephone numbers of generators
o Explain site's disposal methods
o Explain site's history
o Spontaneous events at the site (fires, spills)
o Recordkeeping procedures
o Availability of records
o Names, addresses, and telephone numbers of other persons employed by
this hauler
o Names, addresses, and telephone numbers of other haulers or generators,
and their employees that disposed of wastes at the site
o Any additional information on other generators or haulers
o Site-specific questions
E-5
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DISCUSSION TOPICS FOR GOVERNMENT OFFICIALS
NOTE: The purpose of this form is to assist the researcher in preparing a site-
specific interview outline. The topics listed below can be eliminated, edited,
or expanded, depending on the PRP search, scope of work, site condition,
interviewee, background information, and data gaps.
GOVERNMENT OFFICIAL
o Title, department/office/agency
o Address, telephone number
o Relationship of this department to others and its roles
o Official's involvement with site (such as inspected site frequently for
many years, newly assigned and has only reviewed records, other)
Department's relationship with site
o Site history (This may be divided into subsections depending on the
specific site, such as site operations, permitting history, compliance
history, ownership history, others.)
o Disposal methods
o Types and quantities of wastes generated at the site
o Years of waste generation
o Wastes received from off-site generators (types, quantities, frequency,
years)
o Generators' names and addresses
o Haulers' names and addresses
o Other PRPs
E-6
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o Site security
o Site enforcement history
o Administrative or legal actions involving the site
o Relevant regulatory requirements
o Others who have knowledge of the site (departments, officials, private
citizens, others)
o Availability of documents
E-7
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INDUSTRIAL SURVEY INFORMATION FORM
NOTE: The purpose of this form is to assist the researcher in preparing a site-
specific industrial survey information form. Depending on the scope of work,
site condition, background information, and data gaps, a more site-specific
form will have to be prepared to ensure that the proper information is
collected. In some cases, sample answers are provided in parentheses.
Generally, these samples are not as detailed as would be required during an
actual survey.
INSTRUCTIONS: For each party identified as possibly contributing to the
contamination at the site, collect the following information:
Facility name
Address, telephone number
Facility contact
o Physical relationship to site (within 1/2- to 1-mile radius, adjacent
property to the south, upstream discharge point)
o Physical relationship source (windshield survey, industrial directory, tax
assessment office map)
o Type of business (active sanitary landfill, gasoline station, hospital,
manufacturing facility)
o Type-of-business source (local industrial directory, observation, yellow
pages)
o Years of operation
o Standard industrial classification (SIC) code
o Types of waste generated
o Types-of-waste-generated source
E-8
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Is the information on the types of waste generated (1) facility-specific
information based on review of facility-specific documents or (2)
assumptions based on a general knowledge of the industry?
E-9
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Appendix F
Comprehensive Environmental
Response, Compensation, and
Liability Act
(As amended by the Superfund
Amendments and Reauthorization
Act of 1986)
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99th Congress 1 rnnfurrnPF PRINT S'?n-
2d Session COMMITTEE PRINT
THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND LIABIL-
ITY ACT OF 1980 (SUPERFUND) (P.L. 96-
510)
AS AMENDED BY
THE SUPERFUND AMENDMENTS AND REAU-
THORIZATION ACT OF 1986 (P.L. 99-499)
DECEMBER 1986
Printed for the use of the Senate Committee
on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
65-705 O WASHINGTON : 1987
For sale by the Superintendent of Document*, Congressional Sale* Office
U.S. Government Printing Office, Washington, DC 20402
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ROBERT T. STAFFORD, Vermont, Chairman
JOHN H. CHAFEE, Rhode bland LLOYD BENTSEN, Texas
ALAN K. SIMPSON, Wyoming QUENTIN N. BURDICK, North Dakota
JAMES ABDNOR, South Dakota GARY HART, Colorado
STEVE SYMMS, Idaho DANIEL PATRICK MOYNIHAN, New York
GORDON J. HUMPHREY, New Hampshire GEORGE J. MITCHELL, Maine
PETE V. DOMENICI, New Mexico MAX BAUCUS, Montana
DAVE DURENBERGER, Minnesota FRANK R. LAUTENBERG, New Jersey
BAILKY GUARD, Staff Director
La O. FULLER, Minority Staff Director
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CONTENTS
TITLE I-HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
Section:
101Definitions 1
102Reportable quantities and additional designations 9
103Notices, penalties 10
104Response authorities 12
105National contingency plan 31
106Abatement action 35
107-Liability 36
108Financial responsibility 46
109Civil penalties and awards 49
110Employee protection 52
111Uses of fund 53
112Claims procedure 60
113Litigation, jurisdiction, and venue 65
114Relationship to other law 70
115Authority to delegate, issue regulations 71
116Schedules 71
117Public participation 72
118High priority for drinking water supplies 73
119Response action contractors 74
120Federal facilities 78
121Cleanup standards 83
122Settlements 90
123Reimbursement to local governments 100
124Methane recovery 100
125Section SOOKbXSXAXi) waste 101
126Indian tribes 101
TITLE HHAZARDOUS SUBSTANCE RESPONSE REVENUE ACT OF 1980
Section: 201Short title; amendment of 1954 code 102
SUBTITLE AIMPOSITION OF TAXES ON PETROLEUM AND CERTAIN CHEMICALS
Section: 211Imposition of taxes 102
[SUBTITLE BESTABLISHMENT OF HAZARDOUS SUBSTANCE RESPONSE TRUST FUND
[Section:
£221Establishment of hazardous substance response trust fund 113
[222Liability of United States limited to amount in trust fund 114
[223Administrative provisions 114]
SUBTITLE CPOST-CLOSURE TAX AND TRUST FUND
Section:
231Imposition of tax 116
232Post-closure liability trust fund 117
TITLE UI-MISCELLANEOUS PROVISIONS
Section:
301Reports and studies 117
(in)
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IV
SectionContinued
302Effective dates, savings provision 123
[303Expiration, sunset provision 123]
304Conforming amendments 123
305Legislative veto 124
306Transportation 125
307Assistant Administrator for Solid Waste 125
308Separability 126
309Actions under State law for damages from exposure to hazardous
substances 126
310Citizen suits 127
311Research, development, and demonstration 128
312Low Canal property acquisition 136
TITLE IVPOLLUTION INSURANCE
Section:
401Definitions 137
402State laws; scope of title 138
403Risk retention groups 138
404Purchasing groups 140
405Applicability of securities laws 141
PROVISIONS OF THE SUPERFUND AMENDMENTS AND REAUTHORIZA-
TION ACT OF 1986 WHICH DO NOT AMEND PUBLIC LAW 96-510
(CERCLA)
Section:
118Miscellaneous provisions 143
120Federal facilities 150
121Cleanup standards 150
124Methane recovery 151
126Worker protection standards 151
127Liability limits for ocean incineration vessels 153
203State procedural reform 153
205Cleanup of petroleum from leaking underground storage tanks 154
209Research, development, and demonstration 161
211Department of Defense environmental restoration program 162
213Love Canal property acquisition 169
TITLE III-EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBTITLE AEMERGENCY PLANNING AND NOTIFICATION
Section:
300Short title, table of contents 169
301Establishment of State commissions, planning districts, and
local committees 170
302Substances and facilities covered and notification 171
303Comprehensive emergency response plans 172
304Emergency notification 174
305Emergency training and review of emergency systems 176
SUBTITLE BREPORTING REQUIREMENTS
Section:
311Material safety data sheets 177
312Emergency and hazardous chemical inventory forms 179
313Toxic chemical release forms 182
SUBTITLE CGENERAL PROVISIONS
Section:
321Relationship to other law 189
322-Trade secrets 189
323Provision of information to health professionals, doco>rs, nurses 193
324Public availability of plans, data sheets, forms, and followup notices. 195
325Enforcement 195
326Civil action 198
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SectionContinued
327Exemption 200
328Regulations 200
329Definitions .,. 200
330Authorization of appropriations 201
TITLE IV-RADON GAS AND INDOOR AIR QUALITY RESEARCH
Section:
401Short title 201
402Findings 201
403Radon gas and indoor air quality research program 201
404Construction of title 203
405Authorizations 203
TITLE V-AMENDMENTS OF THE INTERNAL REVENUE CODE OF 1986
Section: 501Short title 203
Part ISuperfund and Its Revenue Sources
Section:
511Extension of environmental taxes 203
512Increase in tax on petroleum 204
513Changes relating to tax on certain chemicals 204
514Repeal of post-closure tax and trust fund 210
515Tax on certain imported substances derived from taxable chemicals. 211
516Environmental tax 213
517Hazardous substance superfund 215
Part IILeaking Underground Storage Tank Trust Fund and Its Revenue
Sources
Section:
521Additional taxes on gasoline, diesel fuel, special motor fuels,
fuels used in aviation, and fuels used in commercial transporta-
tion on inland waters 218
522Leaking underground storage tank trust fund 224
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NOTE
Amendments made by the Super-fund Amendments and Reau-
thorization Act of 1986 (P.L. 99-499) are shown as follows:
Language to be omitted is enclosed in black brackets; new lan-
guage is printed in italic; and language where there is no change
is printed in roman.
Public Law 96-510
96th Congress
An Act
To provide for liability, compensation, cleanup, and emergency response for haz-
ardous substances released into the environment and the cleanup of inactive haz-
ardous waste disposal sites.
Be it enacted by the Senate and House of Representatives of the
United States of American in Congress assembled, That this Act
may be cited as the "Comprehensive Environmental Response,
Compensation, and Liability Act of 1980".
TITLE IHAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
DEFINITIONS
SEC. 101. For purpose of this title£, the termj
(1) The term "act of God" means an unanticipated grave nat-
ural disaster or other natural phenomenon of an exceptional,
inevitable, and irresistible character, the effects of which could
not have been prevented or avoided by the exercise of due care
or foresight [;J.
(2) The term "Administrator" means the Administrator of
the United States Environmental Protection Agency [;].
(3) The term "barrel" means forty-two United States gallons
at sixty degrees Fahrenheit [;].
(4) The term "claim" means a demand in writing for a sum
certainT;].
(5) The term "claimant" means any person who presents a
claim for compensation under this Act[;J.
(6) The term "damages" means damages for injury or loss of
natural resources as set forth in section 107(a) or lll(b) of this
.
(7) The term "drinking water supply" means any raw or fin-
ished water source that is or may be used by a public water
system (as defined in the Safe Drinking Water Act) or as
drinking water by one or more individuals [;].
(l)
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(8) The term "environment" means (A) the navigable waters,
the waters of the contiguous zone, and the ocean waters of
which the natural resources are under the exclusive manage-
ment authority of the United States under the Fishery Conser-
vation and Management Act of 1976, and (B) any other surface
water, ground water, drinking water supply, land surface or
subsurface strata, or ambient air within the United States or
under the jurisdiction of the United States [;1.
(9) The term "facility" means (A) any building, structure, ir-
stallation, equipment, pipe or pipeline (including any pipe into
a sewer or publicly owned treatment works), well, pit, pond,
lagoon, impoundment, ditch, landfill, storage container, motor
vehicle, rolling stock, or aircraft, or (B) any site or area where
a hazardous substance has been deposited, stored, disposed of,
or placed, or otherwise come to be located; but does not include
any consumer product in consumer use or any vessel [;].
(10) The term "federally permitted release" means (A) dis-
charges in compliance with a permit under section 402 of the
Federal Water Pollution Control Act, (B) discharges resulting
from circumstances identified and reviewed and made part of
the public record with respect to a permit issued or modified
under section 402 of the Federal Water Pollution Control Act
and subject to a condition of such permit, (C) continuous or an-
ticipated intermittent discharges from a point source, identi-
fied in a permit or permit application under section 402 of the
Federal Water Pollution Control Act, which are caused by
events occurring within the scope of relevant operating or
treatment systems, (D) discharges in compliance with a legally
enforceable permit under section 404 of the Federal Water Pol-
lution Control Act, (E) releases in compliance with a legally en-
forceable final permit issued pursuant to section 3005 (a)
through (d) of the Solid Waste Disposal Act from a hazardous
waste treatment, storage, or disposal facility when such permit
specifically identifies the hazardous substances and makes
such substances subject to a standard of practice, control proce-
dure or bioassay limitation or condition, or other control on
the hazardous substances in such releases, (F) any release in
compliance with a legally enforceable permit issued under sec-
tion 102 of section 103 of the Marine Protection, Research, and
Sanctuaries Act of 1972, (G) any injection of fluids authorized
under Federal underground injection control programs or State
programs submitted for Federal approval (and not disapproved
by the Administrator of the Environmental Protection Agency)
pursuant to part C of the Safe Drinking Water Act, (H) any
emission into the air subject to a permit or control regulation
under section 111, section 112, title I part C, title I part D, or
State implementation plans submitted in accordance with sec-
tion 110 of the Clean Air Act (and not disapproved by the Ad-
ministrator of the Environmental Protection Agency)., includ-
ing any schedule or waiver granted, promulgated, or approved
under these sections, (I) any injection of fluids or other materi-
als authorized under applicable State law (i) for the purpose of
stimulating or treating wells for the production of crude oil,
natural gas, or water, (ii) for the purpose of secondary, terti-
-------
ary, or other enhanced recovery of crude oil or natural gas, or
(iii) which are brought to the surface in conjunction with the
production of crude oil or natural gas and which are reinject-
ed, (J) the introduction of any pollutant into a publicly owned
treatment works when such pollutant is specified in and in
compliance with applicable pretreatment standards of section
307 (b) or (c) of the Clean Water Act and enforceable require-
ments in a pretreatment program submitted by a State or mu-
nicipality for Federal approval under section 402 of such Act,
and (K) any release of source, special nuclear, or byproduct
material, as those terms are defined in the Atomic Energy Act
of 1954, in compliance with a legally enforceable license,
permit, regulation, or order issued pursuant to the Atomic
Energy Act of 1954 [;].
C(1D The term "Fund" or "Trust Fund" means the Hazard-
ous Substance Response Fund established by section 221 of this
Act or, in the case of a hazardous waste disposal facility for
which liability has been transferred under section 107(k) of
this Act, the Post-closure Liability Fund established by section
232 of this Act;}
(11) The term ''Fund" or "Trust Fund1' means the Hazardous
Substance Superfund established by section 9507 of the Internal
Revenue Code of 1986.
(12) The term "ground water" means water in a saturated
zone or stratum beneath the surface of land or water £;1.
(13) The term "guarantor" means any person, other than the
owner or operator, who provides evidence of financial responsi-
bility for an owner or operator under this Act£;].
(14) The term "hazardous substance" means (A) any sub-
stance designated pursuant to section 311(bX2XA) of the Feder-
al Water Pollution Control Act, (B) any element, compound,
mixture, solution, or substance designated pursuant to section
102 of this Act, (C) any hazardous waste having the character-
istics identified under or listed pursuant to section 3001 of the
Solid Waste Disposal Act (but not including any waste the reg-
ulation of which under the Solid Waste Disposal Act has been
suspended by Act of Congress), (D) any toxic pollutant listed
under section 307(a) of the Federal Water Pollution Control
Act, (E) any hazardous air pollutant listed under section 112 of
the Clean Air Act, and (F) any imminently hazardous chemical
substance or mixture with respect to which the Administrator
has taken action pursuant to section 7 of the Toxic Substances
Control Act. The term does not include petroleum, including
crude oil or any fraction thereof which is not otherwise specifi-
cally listed or designated as a hazardous substance under sub-
paragraphs (A) through (F) of this paragraph, and the term
does not include natural gas, natural gas liquids, liquefied nat-
ural gas, or synthetic gas usable for fuel (or mixtures of natu-
ral gas and such synthetic gas)[;].
(15) The term "navigable waters" or "navigable waters of the
United States" means the waters of the United States, includ-
ing the territorial seas[;].
(16) The term "natural resources" means land, fish, wildlife,
biota, air, water, ground water, drinking water supplies, and
-------
other such resources belonging to, managed by, held in trust
by, appertaining to, or otherwise controlled by the United
States (including the resources of the fishery conservation zone
established by the Fishery Conservation and Management Act
of 1976), any State or local government, [or] any foreign gov-
ernment [.j, any Indian tribe, or, if such resources are subject
to a trust restriction on alienation, any member of an Indian
tribe.
(17) The term "offshore facility" means any facility of any
kind located in, on, or under, any of the navigable waters of
the United States, and any facility of any kind which is subject
to the jurisdiction of the United States and is located in, on, or
under any other waters, other than a vessel or a public
vessel [;1.
(18) The term "onshore facility" means any facility (includ-
ing, but not limited to, motor vehicles and rolling stock) of any
kind located in, on, or under, any land or nonnavigable waters
within the United States C;].
(19) The term "otherwise subject to the jurisdiction of the
United States" means subject to the jurisdiction of the United
States by virtue of United States citizenship. United States
vessel documentation or numbering, or as provided by interna-
tional agreement to which the United States is a party [;].
(20XA) The term "owner or operator" means (i) in the case of
a vessel, any person owning, operating, or chartering by
demise, such vessel, (ii) in the case of an onshore facility or an
offshore facility, any person owning or operating such facility,
and [(iii) in the case of any abandoned facility, any person
who owned, operated, or otherwise controlled activities at such
facility immediately prior to such abandonment. Such term
does not include a person, who, without participating in the
management of a vessel or facility, holds indicia of ownership
primarily to protect his security interest in the vessel or facili-
ty;] (Hi) in the case of any facility, title or control of which was
conveyed due to bankruptcy, foreclosure, tax delinquency, aban-
donment, or similar means to a unit of State or local govern-
ment, any person who owned, operated, or otherwise controlled
activities at such facility immediately beforehand.
(B) [in] In the case of a hazardous substance which has
been accepted for transportation by a common or contract car-
rier and except as provided in section 107(a) (3) or (4) of this
Act, (i) the term "owner or operator" shall mean such common
carrier or other bona fide for hire carrier acting asi an inde-
pendent contractor during such transportation, (h) the shipper
of such hazardous substance shall not be considered to have
caused or contributed to any release during such transporta-
tion which resulted solely from circumstances or conditions
beyond his control [;].
(C) [in] In the case of a hazardous substance which has
been delivered by a common or contract carrier to a disposal or
treatment facility and except as provided in section 107(a) (3)
or (4) (i) the term "owner or operator" shall not include such
common or contract carrier, and (ii) such common or contract
carrier shall not be considered to have caused or contributed to
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any release at such disposal or treatment facility resulting
from circumstances or conditions beyond its control r;].
(D) The term "owner or operator does not include a unit of
State or local government which acquired ownership or control
involuntarily through bankruptcy, tax delinquency, abandon-
ment, or other circumstances in which the government involun-
tarily acquires title by virtue of its function as sovereign. The
exclusion provided under this paragraph shall not apply to any
State or local government which has caused or contributed to
the release or threatened release of a hazardous substance from
the facility, and such a State or local government shall be sub-
ject to the provisions of this Act in the same manner and to the
same extent, both procedurally and substantively, as any non-
governmental entity, including liability under section 107.
(21) The term "person" means an individual, firm, corpora-
tion, association, partnership, consortium, joint venture, com-
mercial entity, United States Government, State, municipality,
commission, political subdivision of a State, or any interstate
body[;T
(22) The term "release" means any spilling, leaking, pump-
ing, pouring, emitting, emptying, discharging, injecting, escap-
ing, leaching, dumping, or disposing into the environment (in-
cluding the abandonment or discarding of barrels, containers,
and other closed receptacles containing any hazardous sub-
stance or pollutant or contaminant), but excludes (A) any re-
lease which results in exposure to persons solely within a
workplace, with respect to a claim which such persons may
assert against the employer of such persons, (B) emissions from
the engine exhaust of a motor vehicle, rolling stock, aircraft,
vessel, or pipeline pumping station engine, (C) release of
source, byproduct, or special nuclear material from a nuclear
incident, as those terms are defined in the Atomic Energy Act
of 1954, if such release is subject to requirements with respect
to financial protection established by the Nuclear Regulatory
Commission under section 170 of such Act, or, for the purposes
of section 104 of this title or any other response action, any re-
lease of source byproduct, or special nuclear material from any
processing site designated under section 102(aXD or 302(a) of
the Uranium Mill Tailings Radiation Control Act of 1978, and
(D) the normal application of fertilizer [;].
(23) The terms remove" or "removal" means the cleanup or
removal of released hazardous substances from the environ-
ment, such actions as may be necessary taken in the event of
the threat of release of hazardous substances into the environ-
ment, such actions as may be necessary to monitor, assess, and
evaluate the release or threat of release of hazardous sub-
stances, the disposal of removed material, or the taking of such
other actions as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare or to the envi-
ronment, which may otherwise result from a release or threat
of release. The term includes, in addition, without being limit-
ed to, security fencing or other measures to limit access, provi-
sion of alternative water supplies, temporary evacuation and
housing of threatened individuals not otherwise provided for,
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action taken under section 104(b) of this Act, and any emergen-
cy assistance which may be provided under the Disaster Relief
Act of 19741; J.
(24) The terms "remedy" or "remedial action" means those
actions consistent with permanent remedy taken instead of or
in addition to removal actions in the event of a release or
threatened release of a hazardous substance into the environ-
ment, to prevent or minimize the release of hazardous sub-
stances so that they do not migrate to cause substantial danger
to present or future public health or welfare or the environ-
ment. The term includes, but is not limited to, such actions at
the location of the release as storage, confinement, perimeter
protection using dikes, trenches, or ditches, clay cover, neutral-
ization, cleanup of released hazardous substances [or j and as-
sociated contaminated materials, recycling or reuse, diversion,
destruction, segregation of reactive wastes, dredging or excava-
tions, repair or replacement of leaking containers, collection of
leachate and runoff, onsite treatment or incineration, provision
of alternative water supplies, and any monitoring reasonably
required to assure that such actions protect the public health.
and welfare and the environment. The term includes the costs
of permanent relocation of residents and businesses and com-
munity facilities where the President determines that, alone or
in combination with other measures, such relocation is more
cost-effective than and environmentally preferable to the
transportation, storage, treatment, destruction, or secure dispo-
sition offsite of hazardous substances, or may otherwise be nec-
essary to protect the public health or [welfare. The terra does
not include offsite transport of hazardous substances, or the
storage, treatment, destruction, or secure disposition offsite of
such hazardous substances or contaminated materials unless
the President determines that such actions (A) are more cost-
effective than other remedial actions, (B) will create new ca-
pacity to manage, in compliance with subtitle C of the Solid
Waste Disposal Act, hazardous substances in addition to those
located at the affected facility, or (C) are necessary to protect
public health or welfare or the environment from a present or
potential risk which may be created by further exposure to the
continued presence of such substances or materials;] welfare;
the term includes offsite transport and offsite storage, treat-
ment, destruction, or secure disposition of hazardous substances
and associated contaminated materials.
(25) The terms "respond" or "response" means remove, re-
moval, remedy, and remedial action, all such terms (including
the terms "removal" and "remedial action") include enforce-
ment activities related thereto [;].
(26) The terms "transport" or "transportation" means the
movement of a hazardous substance by any mode, including
pipeline (as defined in the Pipeline Safety Act), and in the case
of a hazardous substance which has been accepted for transpor-
tation by a common or contract carrier, the term "transport"
or "transportation" shall include any stoppage in transit which
is temporary, incidental to the transportation movement, and
at the ordinary operating convenience of a common or contract
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carrier, and any such stoppage shall be considered as a conti-
nuity of movement and not as the storage of a hazardous sub-
stance [;].
(27) The terms "United States" and "State" include the sev-
eral States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Commonwealth of the North-
ern Marianas, and any other territory or possession over which
the United States has jurisdiction [;].
(28) The term "vessel" means every description of watercraft
or other artificial contrivance used, or capable of being used, as
a means of transportation on water [;].
(29) The terms "disposal", "hazardous waste", and "treat-
ment" shall have the meaning provided in section 1004 of the
Solid Waste Disposal Act[;].
(30) The terms "territorial sea" and "contiguous zone" shall
have the meaning provided in section 502 of the Federal Water
Pollution Control Act.
(31) The term "national contingency plan" means the nation-
al contingency plan published under section 311(c) of the Fed-
eral Water Pollution Control Act or revised pursuant to section
105 of this Act[; and].
(32) The terms "liable" or "liability" under this title shall be
construed to be the standard of liability which obtains under
section 311 of the Federal Water Pollution Control Act.
(33) The term "pollutant or contaminant" shall include, but
not be limited to, any element, substance, compound, or mix-
ture, including disease-causing agents, which after release into
the environment and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from the envi-
ronment or indirectly by ingestion through food chains, will or
may reasonably be anticipated to cause death, disease, behavior-
al abnormalities, cancer, genetic mutation, physiological mal-
functions (including malfunctions in reproduction) or physical
deformations, in such organisms or their offspring; except that
the term "pollutant or contaminant" shall not include petrole-
um, including crude oil or any fraction thereof which is not
otherwise specifically listed or designated as a hazardous sub-
stance under subparagraphs (A) through (F) of paragraph (14)
and shall not include natural gas, liquefied natural gas, or syn-
thetic gas of pipeline quality (or mixtures of natural gas and
such synthetic gas).
(34) The term "alternative water supplies" includes, but is not
limited to, drinking water and household water supplies.
(35XA) The term "contractual relationship", for the purpose
of section 107(bX3), includes, but is not limited to, land con-
tracts, deeds or other instruments transferring title or posses-
sion, unless the real property on which the facility concerned is
located was acquired by the defendant after the disposal or
placement of the hazardous substance on, in, or at the facility,
and one or more of the circumstances described in clause (i), (ii),
or (Hi) is also established by the defendant by a preponderance
of the evidence:
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(i) At the time the defendant acquired the facility the de-
fendant did not know and had no reason to know that any
hazardous substance which is the subject of the release or
threatened release was disposed of on, in, or at the facility.
(ii) The defendant is a government entity which acquired
the facility by escheat, or through any other involuntary
transfer or acquisition, or through the exercise of eminent
domain authority by purchase or condemnation.
(Hi) The defendant acquired the facility by inheritance or
bequest.
In addition to establishing the foregoing, the defendant must
establish that he has satisfied the requirements of section
107(bX3) (a) and (b).
(B) To establish that the defendant had no reason to know, as
provided in clause (i) of subparagraph (A) of this paragraph,
the defendant must have undertaken, at the time of acquisition,
all appropriate inquiry into the previous ownership and uses of
the property consistent with good commercial or customary
practice in an effort to minimize liability. For purposes of the
preceding sentence the court shall take into account any special-
ized knowledge or experience on the part of the defendant, the
relationship of the purchase price to the value of the property if
uncontaminated, commonly known or reasonably ascertainable
information about the property, the obviousness of the presence
or likely presence of contamination at the property, and the
ability to detect such contamination by appropriate inspection.
(C) Nothing in this paragraph or in section 107(bX3) shall di-
minish the liability of any previous owner or operator of such
facility who would otherwise be liable under this Act. Notwith-
standing this paragraph, if the defendant obtained actual
knowledge of the release or threatened release of a hazardous
substance at such facility when the defendant owned the real
property and then subsequently transferred ownership of the
property to another person without disclosing such knowledge,
such defendant shall be treated as liable under section 107(aXl)
and no defense under section 107(bX3) shall be available to such
defendant.
(D) Nothing in this paragraph shall affect the liability under
this Act of a defendant who, by any act or omission, caused or
contributed to the release or threatened release of a hazardous
substance.
(36) The term "Indian tribe" means any Indian tribe, band,
nation, or other organized group or community, including any
Alaska Native village but not including any Alaska Native re-
gional or village corporation, which is recognized as eligible for
the special programs and services provided by the United States
to Indians because of their status as Indians.
(37XA) The term service station dealer" means any person
(i) who owns or operates a motor vehicle service station,
filling station, garage, or similar retail establishment en-
gaged in the business of selling, repairing, or servicing
motor vehicles, where a significant percentage of the gross
revenue of the establishment is derived from the fueling, re-
pairing, or servicing of motor vehicles, and
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(ii) who accepts for collection, accumulation, and delivery
to an oil recycling facility, recycled oil that (I) has been re-
moved from the engine of a light duty motor vehicle or
household appliances 'by the owner of such vehicle or appli-
ances, and (II) is presented, by such owner, to such person
for collection, accumulation, and delivery to an oil recy-
cling facility.
(B) For purposes of section 114(c), the term "service station
dealer" shall, notwithstanding the provisions of subparagraph
(A), include any government agency that establishes a facility
solely for the purpose of accepting recycled oil that satisfies the
criteria set forth in subclauses (I) and (II) of subparagraph
(AXU), and, with respect to recycled oil that satisfies the criteria
set forth in subclauses (I) and (II), owners or operators of refuse
collection services who are compelled by State law to collect, ac-
cumulate, and deliver such oil to an oil recycling facility.
(C) The President shall promulgate regulations regarding the
determination of what constitutes a significant percentage of
the gross revenues of an establishment for purposes of this para-
graph.
(38) The term "incineration vessel" means any vessel which
carries hazardous substances for the purpose of incineration of
such substances, so long as such substances or residues of such
substances are on boar
REPORTABLE QUANTITIES AND ADDITIONAL DESIGNATIONS
SEC. 102. (a) The Administrator shall promulgate and revise as
may be appropriate, regulations designating as hazardous sub-
stances, in addition to those referred to in section 101(14) of this
title, such elements, compounds, mixtures, solutions, and sub-
stances which, when released into the environment may present
substantial danger to the public health or welfare or the environ-
ment, and shall promulgate regulations establishing that quantity
of any hazardous substance the release of which shall be reported
pursuant to section 103 of this title. The Administrator may deter-
mine that one single quantity shall be the reportable quantity for
any hazardous substance, regardless of the medium into which the
hazardous substance is released. For all hazardous substances for
which proposed regulations establishing reportable quantities were
published in the Federal Register under this subsection on or before
March 1, 1986, the Administrator shall promulgate under this sub-
section final regulations establishing reportable quantities not later
than December 31, 1986. For all hazardous substances for which
proposed regulations establishing reportable quantities were not
published in the Federal Register under this subsection on or before
March 1, 1986, the Administrator shall publish under this subsec-
tion proposed regulations establishing reportable quantities not later
than December 31, 1986, and promulgate final regulations under
this subsection establishing reportable quantities not later than
April 30, 1988.
(b) Unless and until superseded by regulations establishing a re-
portable quantity under subsection (a) of this section for any haz-
ardous substance as defined in section 101(14) of this title, (1) a
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10
quantity of one pound, or (2) for those hazardous substances for
which reportable quantities have been established pursuant to sec-
tion 311(bX4) of the Federal Water Pollution Control Act, such re-
portable quantity, shall be deemed that quantity, the release of
which requires notification pursuant to section 103 (a) or (b) of this
title.
NOTICES, PENALTIES
SEC. 103. (a) Any person in charge of a vessel or an offshore or an
onshore facility shall, as soon as he has knowledge of any release
(other than a federally permitted release) of a hazardous substance
from such vessel or facility in quantities equal to or greater than
those determined pursuant to section 102 of this title, immediately
notify the National Response Center established under the Clean
Water Act of such release. The National Response Center shall
convey the notification expeditiously to all appropriate Govern-
ment agencies, including the Governor of any affected State.
(b) Any person
(1) in charge of a vessel from which a hazardous substance is
released, other than a federally permitted release, into or upon
the navigable waters of the United States, adjoining shorelines,
or into or upon the waters of the contiguous zone, or
(2) in charge of a vessel from which a hazardous substance is
released, other than a federally permitted release, which may
affect natural resources belonging to, appertaining to, or under
the exclusive management authority of the United States
(including resources under the Fishery Conservation and Man-
agement Act of 1976), and who is otherwise subject to the juris-
diction of the United States at the time of the release, or
(3) in charge of a facility from which a hazardous substance
is released, other than a federally permitted release
in a quantity equal to or greater than that determined pursuant to
section 102 of this title who fails to notify immediately the appro-
priate agency of the United States Government as soon as he has
knowledge of such release or who submits in such a notification
any information which he knows to be false and misleading shall,
upon conviction, be fined [not more than $10,000 or imprisoned for
not more than one year, or both] in accordance with the applicable
provisions of title 18 of the United States Code or imprisoned for
not more than 3 years (or not more than 5 years in the case of a
second or subsequent conviction}, or both. Notification received pur-
suant to this [paragraph} subsection or information obtained by
the exploitation of such notification shall not be used against any
such person in any criminal case, except a prosecution for perjury
or for giving a false statement.
(c) Within one hundred and eighty days after the enactment of
this Act, any person who owns or operates or who at the time of
disposal owned or operated, or who accepted hazardous substances
for transport and selected, a facility at which hazardous substances
(as defined in section 10K14XC) of this title) are or have been
stored, treated, or disposed of shall, unless such facility has a
permit issued under, or has been accorded interim status under,
subtitle C of the Solid Waste Disposal Act, notify the Administrator
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11
of the Environmental Protection Agency of the existence of such
facility, specifying the amount and type of any hazardous sub-
stance to be found there, and any known, suspected, or likely re-
leases of such substances from such facility. The Administrator
may prescribe in greater detail the manner and form of the notice
and the information included. The Administrator shall notify the
affected State agency, or any department designated by the Gover-
nor to receive such notice, of the existence of such facility. Any
person who knowingly fails to notify the Administrator of the ex-
istence of any such facility shall, upon conviction, be fined not
more than $10,000, or imprisoned for not more than one year, or
both. In addition, any such person who knowingly fails to provide
the notice required by this subsection shall not be entitled to any
limitation of liability or to any defenses to liability set out in sec-
tion 107 of this Act: Provided, however, That notification under this
subsection is not required for any facility which would be report-
able hereunder solely as a result of any stoppage in transit which
is temporary, incidental to the transportation movement, or at the
ordinary operating convenience of a common or contract carrier,
and such stoppage shall be considered as a continuity of movement
and not as the storage of a hazardous substance. Notification re-
ceived pursuant to this subsection or information obtained by the
exploitation of such notification shall not be used against any such
person in any criminal case, except a prosecution for perjury or for
giving a false statement.
(dXD The Administrator of the Environmental Protection Agency
is authorized to promulgate rules and regulations specifying, with
respect to
(A) the location, title, or condition of a facility, and
(B) the identity, characteristics, quantity, origin, or condition
(including containerization and previous treatment) of any haz-
ardous substances contained or deposited in a facility;
the records which shall be retained by any person required to pro-
vide the notification of a facility set out in subsection (c) of this sec-
tion. Such specification shall be in accordance with the provisions
of this subsection.
(2) Beginning with the date of enactment of this Act, for fifty
years thereafter or for fifty years after the date of establishment of
a record (whichever is later), or at any such earlier time as a
waiver if obtained under paragraph (3) of this subsection, it shall
be unlawful for any such person knowingly to destroy, mutilate,
erase, dispose of, conceal, or otherwise render unavailable or un-
readable or falsify any records identified in paragraph (1) of this
subsection. Any person who violates this paragraph shall, upon
conviction, be fined [not more than $20,000, or imprisoned for not
more than one year, or both] in accordance with the applicable
provisions of title 18 of the United States Code or imprisoned for
not more than 3 years (or not more than 5 years in me case of a
second or subsequent conviction), or both.
(3) At any time prior to the date which occurs fifty years after
the date of enactment of this Act, any person identified under
paragraph (1) of this subsection may apply to the Administrator of
the Environmental Protection Agency for a waiver of the provi-
sions of the first sentence of paragraph (2) of this subsection. The
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Administrator is authorized to grant such waiver if, in his discre-
tion, such waiver would not unreasonably interfere with the attain-
ment of the purposes and provisions of this Act. The Administrator
shall promulgate rules and regulations regarding such a waiver so
as to inform parties of the proper application procedure and condi-
tions for approval of such a waiver.
(4) Notwithstanding the provisions of this subsection, the Admin-
istrator of the Environmental Protection Agency may in his discre-
tion require any such person to retain any record identified pursu-
ant to paragraph (1) of this subsection for such a time period in
excess of the period specified in paragraph (2) of this subsection as
the Administrator determines to be necessary to protect the public
health or welfare.
(e) This section shall not apply to the application of a pesticide
product registered under the Federal Insecticide, Fungicide, and
Rodenticide Act or to the handling and storage of such a pesticide
product by an agricultural producer.
(f) No notification shall be required under subsection (a) or (b) of
this section for any release of a hazardous substance
(1) which is required to be reported (or specifically exempted
from a requirement for reporting) under subtitle C of the Solid
Waste Disposal Act or regulations thereunder and which has
been reported to the National Response Center, or
(2) which is a continuous release, stable in quantity and rate,
and is
(A) from a facility for which notification has been given
under subsection (c) of this section, or
(B) a release of which notification has been given under
subsections (a) and (b) of this section for a period sufficient
to establish the continuity, quantity, and regularity of
such release:
Provided, That notification in accordance with subsections (a)
and (b) of this paragraph shall be given for releases subject to
this paragraph annually, or at such time as there is any statis-
tically significant increase in the quantity of any hazardous
substance or constituent thereof released, above that previous-
ly reported or occurring.
RESPONSE AUTHORITIES
SEC. 104. (aXD Whenever (A) any hazardous substance is released
or there is a substantial threat of such a release into the environ-
ment, or (B) there is a release or substantial threat of release into
the environment of any pollutant or contaminant which may
present an imminent and substantial danger to the public health
or welfare, the President is authorized to act, consistent with the
national contingency plan, to remove or arrange for the removal of,
and provide, for remedial action relating to such hazardous sub-
stance, pollutant, or contaminant at any time (including its remov-
al from any contaminated natural resource), or take any other re-
sponse measure consistent with the national contingency plan
which the President deems necessary to protect the public health
or welfare or the environment!, unless the President determines
that such removal and remedial action will be done properly by the
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13
owner or operator of the vessel or facility from which the release
or threat of release emanates, or by any other responsible party!.
When the President determines that such action will be done proper-
ly and promptly by the owner or operator of the facility or vessel or
by any other responsible party, the President may allow such person
to carry out the action, conduct the remedial investigation, or con-
duct the feasibility study in accordance with section 122. No remedi-
al investigation or feasibility study (RI/FS) shall be authorized
except on a determination by the President that the party is quali-
fied to conduct the RI/FS and only if the President contracts with
or arranges for a qualified person to assist the President in oversee-
ing and reviewing the conduct of such RI/FS and if the responsible
party agrees to reimburse the Fund for any cost incurred by the
President under, or in connection with, the oversight contract or ar-
rangement. In no event shall a potentially responsible party be sub-
ject to a lesser standard of liability, receive preferential treatment,
or in any other way, whether direct or indirect, benefit from any
such arrangements as a response action contractor, or as a person
hired or retained by such a response action contractor, with respect
to the release or facility in question. The President shall give pri-
mary attention to those releases which the President deems may
present a public health threat.
[(2) For the purposes of this section, "pollutant or contaminant"
shall include, but not be limited to, any element, substance, com-
pound, or mixture, including disease-causing agents, which after re-
lease into the environment and upon exposure, ingestion, inhala-
tion, or assimilation into any organism, either directly from the en-
vironment or indirectly by ingestion through food chains, will or
may reasonably be anticipated to cause death, disease, behavioral
abnormalities, cancer, genetic mutation, physiological malfunctions
(including malfunctions in reproduction) or physical deformations,
in such organisms or their offspring. The term does not include pe-
troleum, including crude oil and any fraction thereof which is not
otherwise specifically listed or designated as hazardous substances
under section 101(14) (A) through (F) of this title, nor does it in-
clude natural gas, liquefied natural gas, or synthetic gas of pipeline
quality (or mixtures of natural gas and such synthetic gas).]
(2) REMOVAL ACTION.Any removal action undertaken by the
President under this subsection (or by any other person referred to in
section 122) should, to the extent the President deems practicable,
contribute to the efficient performance of any long term remedial
action with respect to the release or threatened release concerned.
(3) LIMITATIONS ON RESPONSE.The President shall not provide
for a removal or remedial action under this section in response to a
release or threat of release
(A) of a naturally occurring substance in its unaltered form,
or altered solely through naturally occurring processes or phe-
nomena, from a location where it is naturally found;
(B) from products which are part of the structure of, and
result in exposure within, residential buildings or business or
community structures; or
(C) into public or private drinking water supplies due to dete-
rioration of the system through ordinary use.
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(4) EXCEPTION TO LIMITATIONS.Notwithstanding paragraph (3)
of this subsection, to the extent authorized by this section, the Presi-
dent may respond to any release or threat of release if in the Presi-
dent's discretion, it constitutes a public health or environmental
emergency and no other person with the authority and capability to
respond to the emergency will do so in a timely manner.
(bY7; INFORMATION; STUDIES AND INVESTIGATIONS. Whenever
the President is authorized to act pursuant to subsection (a) of this
section, or whenever the President has reason to believe that a re-
lease has occurred or is about to occur, or that illness,, disease, or
complaints thereof may be attributable to exposure to a hazardous
substance, pollutant, or contaminant and that a release may have
occurred or be occurring, he may undertake such investigations,
monitoring, surveys, testing, and other information gathering as he
may deem necessary or appropriate to identify the existence and
extent of the release or threat thereof, the source and nature of the
hazardous substances, pollutants or contaminants involved, and the
extent of danger to the public health or welfare or to the environ-
ment. In addition, the President may undertake such planning,
legal, fiscal, economic, engineering, architectural, and other studies
or investigations as he may deem necessary or appropriate to plan
and direct response actions, to recover the costs thereof, and to en-
force the provisions of this Act.
(2) COORDINATION OF INVESTIGATIONS.The President shall
promptly notify the appropriate Federal and State natural resource
trustees of potential damages to natural resources resulting from re-
leases under investigation pursuant to this section and shall seek to
coordinate the assessments, investigations, and planning under this
section with such Federal and State trustees.
(cXD Unless (A) the President finds that (i) continued response
actions are immediately required to prevent, limit, or mitigate an
emergency, (ii) there is an immediate risk to public health or wel-
fare or the environment, and (iii) such assistance will not otherwise
be provided on a timely basis, or (B) the President has determined
the appropriate remedial actions pursuant to paragraph (2) of this
subsection and the State or States in which the source of the re-
lease is located have complied with the requirements of paragraph
(3) of this subsection, or (C) continued response action is otherwise
appropriate and consistent with the remedial action to be taken ob-
ligations from the Fund, other than those authorized by subsection
(b) of this section, shall not continue after C$l,000,000]| $2,000,000
has been obligated for response actions or [six months] 12 months
has elapsed from the date of initial response to a release or threat-
ened release of hazardous substances.
(2) The President shall consult with the affected State or States
before determining any appropriate remedial action to be taken
pursuant to the authority granted under subsection (a) of this sec-
tion.
(3) The President shall not provide any remedial actions pursu-
ant to this section unless the State in which the release occurs first
enters into a contract or cooperative agreement with the President
providing assurances deemed adequate by the President that (A)
the State will assure all future maintenance of the removal and re-
medial actions provided for the expected life of such actions as de-
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termined by the President; (B) the State will assure the availability
of a hazardous waste disposal facility acceptable to the President
and in compliance with the requirements of subtitle C of the Solid
Waste Disposal Act for any necessary offsite storage, destruction,
treatment, or secure disposition of the hazardous substances; and
(C) the State will pay or assure payment of (i) 10 per centum of the
costs of the remedial action, including all future maintenance, or
[(ii) at least 50 per centum or such greater amount as the Presi-
dent may determine appropriate, taking into account the degree of
responsibility of the State or political subdivision, of any sums ex-
pended in response to a release at a facility that was owned at the
time of any disposal of hazardous substances therein by the State
or a political subdivision thereof. The President shall grant the
State a credit against the share of the costs for which it is responsi-
ble under this paragraph for any documented direct out-of-pocket
non-Federal funds expended or obligated by the State or a political
subdivision thereof after January 1, 1978, and before the date of
enactment of this Act for cost-eligible response actions and claims
for damages compensable under section 111 of this title relating to
the specific release in question: Provided, however, That in no
event shall the amount of the credit granted exceed the total re-
sponse costs relating to the release.] (ii) 50 percent (or such greater
amount as the President may determine appropriate, taking into ac-
count the degree of responsibility of the State or political subdivi-
sion for the release) of any sums expended in response to a release at
a facility, that was operated by the State or a political subdivision
thereof, either directly or through a contractual relationship or oth-
erwise, at the time of any disposal of hazardous substances therein.
For the purpose of clause (ii) of this subparagraph, the term "facili-
ty" does not include navigable waters or the beds underlying those
waters. In the case of remedial action to be taken on land or water
held by an Indian tribe, held by the United States in trust for Indi-
ans, held by a member of an Indian tribe (if such land or water is
subject to a trust restriction on alienation), or otherwise within the
borders of an Indian reservation, the requirements of this paragraph
for assurances regarding future maintenance and cost-sharing shall
not apply, and the President shall provide the assurance required by
this paragraph regarding the availability of a hazardous waste dis-
posal facility.
[(4) The President shall select appropriate remedial actions de-
termined to be necessary to carry out this section which are to the
extent practicable in accordance with the national contingency
plan and which provide for that cost-effective response which pro-
vides a balance between the need for protection of public health
and welfare and the environment at the facility under consider-
ation, and the availability of amounts from the Fund established
under title II of this Act to respond to other sites which present or
may present a threat to public health or welfare or the environ-
ment, taking into consideration the need for immediate action.]
(4) SELECTION OF REMEDIAL ACTION.The President shall select
remedial actions to carry out this section in accordance with section
121 of this Act (relating to cleanup standards).
(5) STATE CREDITS.
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(A) GRANTING OF CREDIT.The President shall grant a State
a credit against the share of the costs, for which it is responsi-
ble under paragraph (3) with respect to a facility listed on the
National Priorities List under the National Contingency Plan,
for amounts expended by a State for remedial action at such fa-
cility pursuant to a contract or cooperative agreement with the
President. The credit under this paragraph shall be limited to
those State expenses which the President determines to be rea-
sonable, documented, direct out-of-pocket expenditures of non-
Federal funds.
(B) EXPENSES BEFORE LISTING OR AGREEMENT.The credit
under this paragraph shall include expenses for remedial action
at a facility incurred before the listing of the facility on the Na-
tional Priorities List or before a contract or cooperative agree-
ment is entered into under subsection (d) for the facility if
(i) after such expenses are incurred the facility is listed
on such list and a contract or cooperative agreement is en-
tered into for the facility, and
(ii) the President determines that such expenses would
have been credited to the State under subparagraph (A)
had the expenditures been made after listing of the facility
on such list and after the date on which such contract or
cooperative agreement is entered into.
(C) RESPONSE ACTIONS BETWEEN 1973 AND i98o.The credit
under this paragraph shall include funds expended or obligated
by the State or a political subdivision thereof after January 1,
1978, and before December 11, 1980, for cost-eligible response ac-
tions and claims for damages compensable under section 111.
(D) STATE EXPENSES AFTER DECEMBER 11, 1980, IN EXCESS OF
10 PERCENT OF COSTS.The credit under this paragraph shall
include 90 percent of State expenses incurred at a facility
owned, but not operated, by such State or by a political subdivi-
sion thereof. Such credit applies only to expenses incurred pur-
suant to a contract or cooperative agreement under subsection
(d) and only to expenses incurred after December 11, 1980, but
before the date of the enactment of this paragraph.
(E) ITEM-BY-ITEM APPROVAL.In the case of expenditures
made after the date of the enactment of this paragraph, the
President may require prior approval of each item of expendi-
ture as a condition of granting a credit under this paragraph.
(F) USE OF CREDITS.Credits granted under this paragraph
for funds expended with respect to a facility may be used by the
State to reduce all or part of the share of costs otherwise re-
quired to be paid by the State under paragraph (3) in connec-
tion with remedial actions at such facility. If the amount of
funds for which credit is allowed under this paragraph exceeds
such share of costs for such facility, the State may use the
amount of such excess to reduce all or part of the share of such
costs at other facilities in that State. A credit shall not entitle
the State to any direct payment.
(6) OPERATION AND MAINTENANCE.For the purposes of para-
graph (3) of this subsection, in the case of ground or surface water
contamination, completed remedial action includes the completion
of treatment or other measures, whether taken onsite or offsite, nee-
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17
essary to restore ground and surface water quality to a level that
assures protection of human health and the environment. With re-
spect to such measures, the operation of such measures for a period
of up to 10 years after the construction or installation and com-
mencement of operation shall be considered remedial action. Activi-
ties required to maintain the effectiveness of such measures follow-
ing such period or the completion of remedial action, whichever is
earlier, shall be considered operation or maintenance.
(7) LIMITATION ON SOURCE OF FUNDS FOR O&M.During any
period after the availability of funds received by the Hazardous
Substance Superfund established under subchapter A of chapter 98
of the Internal Revenue Code of 1954 from tax revenues or appro-
priations from general revenues, the Federal share of the payment of
the cost of operation or maintenance pursuant to paragraph (SXCXi)
or paragraph (6) of this subsection (relating to operation and main-
tenance) shall be from funds received by the Hazardous Substance
Superfund from amounts recovered on behalf of such fund under
this Act
(8) RECONTRACTiNG.The President is authorized to undertake or
continue whatever interim remedial actions the President deter-
mines to be appropriate to reduce risks to public health or the envi-
ronment where the performance of a complete remedial action re-
quires recontracting because of the discovery of sources, types, or
quantities of hazardous substances not known at the time of entry
into the original contract. The total cost of interim actions under-
taken at a facility pursuant to this paragraph shall not exceed
$2,000,000,
(9) SITING.Effective 3 years after the enactment of the Super-
fund Amendments and Reauthorization Act of 1986, the President
shall not provide any remedial actions pursuant to this section
unless the State in which the release occurs first enters into a con-
tract or cooperative agreement with the President providing assur-
ances deemed adequate by the President that the State will assure
the availability of hazardous waste treatment or disposal facilities
which
(A) have adequate capacity for the destruction, treatment, or
secure disposition of all hazardous wastes that are reasonably
expected to be generated within the State during the 20-year
period following the date of such contract or cooperative agree-
ment and to be disposed of, treated, or destroyed,
(B) are within the State or outside the State in accordance
with an interstate agreement or regional agreement or author-
ity,
(C) are acceptable to the President, and
(D) are in compliance with the requirements of subtitle C of
the Solid Waste Disposal Act.
[(dXD Where the President determines that a State or political
subdivision thereof has the capability to carry out any or all of the
actions authorized in this section, the President may, in his discre-
tion, enter into a contract or cooperative agreement with such
State or political subdivision to take such actions in accordance
with criteria and priorities established pursuant to section 105(8) of
this title and to be reimbursed for the reasonable response costs
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thereof from the Fund. Any contract made hereunder shall be sub-
ject to the cost-sharing provisions of subsection (c) of this section.]
(dXD COOPERATIVE AGREEMENTS.
(A) STATE APPLICATIONS.A State or political subdivision
thereof or Indian tribe may apply to the President to carry out
actions authorized in this section. If the President determines
that the State or political subdivision or Indian tribe has the
capability to carry out any or all of such actions in accordance
with the criteria and priorities established pursuant to section
105(aX8) and to carry out related enforcement actions, the Presi-
dent may enter into a contract or cooperative agreement with
the State or political subdivision or Indian tribe to carry out
such actions. The President shall make a determination regard-
ing such an application within 90 days after the President re-
ceives the application.
(B) TERMS AND CONDITIONS.A contract or cooperative agree-
ment under this paragraph shall be subject to such terms and
conditions as the President may prescribe. The contract or coop-
erative agreement may cover a specific facility or specific facili-
ties.
(C) REIMBURSEMENTS.Any State which expended funds
during the period beginning September 30, 1985, and ending on
the date of the enactment of this subparagraph for response ac-
tions at any site included on the National Priorities List and
subject to a cooperative agreement under this Act shall be reim-
bursed for the share of costs of such actions for which the Fed-
eral Government is responsible under this Act.
(2) If the President enters into a cost-sharing agreement pursu-
ant to subsection (c) of this section or a contract or cooperative
agreement pursuant to this subsection, and the State or political
subdivision thereof fails to comply with any requirements of the
contract, the President may, after providing sixty days notice, seek
in the appropriate Federal district court to enforce the contract or
to recover any funds advanced or any costs incurred because of the
breach of the contract by the State or political subdivision.
(3) Where a State or a political subdivision thereof is acting in
behalf of the President, the President is authorized to provide tech-
nical and legal assistance in the administration and enforcement of
any contract or subcontract in connection with response actions as-
sisted under this title, and to intervene in any civil action involv-
ing the enforcement of such contract or subcontract.
(4) Where two or more noncontiguous facilities are reasonably re-
lated on the basis of geography, or on the basis of the threat, or
potential threat to the public health or welfare or the environment,
the President may, in his discretion, treat these related facilities as
one for purposes of this section.
[(eXl) For purposes of assisting in determining the need for re-
sponse to a release under this title or enforcing the provisions of
this title, any person who stores, treats, or disposes of, or, where
necessary to ascertain facts not available at the facility where such
hazardous substances are located, who generates, transports, or
otherwise handles or has handled, hazardous substances shall,
upon request of any officer, employee, or representative of the
President, duly designated by the President, or upon request of any
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duly designated officer, employee, or representative of a State,
where appropriate, furnish information relating to such substances
and permit such person at all reasonable times to have access to,
and to copy all records relating to such substances. For the pur-
poses specified in the preceding sentence, such officers, employees,
or representatives are authorized
[(A) to enter at reasonable times any establishment or other
place where such hazardous substances are or have been gener-
ated, stored, treated, or disposed of, or transported from;
[(B) to inspect and obtain samples from any person of any
such substance and samples of any containers or labeling for
such substances. Each such inspection shall be commenced and
completed with reasonable promptness. If the officer, employ-
ee, or representative obtains any samples, prior to leaving the
premises, he shall give to the owner, operator, or person in
charge a receipt describing the sample obtained and if request-
ed a portion of each such sample equal in volume of weight to
the portion retained. If any analysis is made of such samples, a
copy of the results of such analysis shall be furnished promptly
to the owner, operator, or person in charge.]
(e) INFORMATION GATHERING AND ACCESS.
(1) ACTION AUTHORIZED.Any officer, employee, or representa-
tive of the President, duly designated by the President, is au-
thorized to take action under paragraph (2), (3), or (4) (or any
combination thereof) at a vessel, facility, establishment, place,
property, or location or, in the case of paragraph (3) or (4), at
any vessel, facility, establishment, place, property, or location
which is adjacent to the vessel, facility, establishment, place,
property, or location referred to in such paragraph (3) or (4).
Any duly designated officer, employee, or representative of a
State or political subdivision under a contract or cooperative
agreement under subsection (d)(l) is also authorized to take
such action. The authority of paragraphs (3) and (4) may be ex-
ercised only if there is a reasonable basis to believe there may be
a release or threat of release of a hazardous substance or pollut-
ant or contaminant. The authority of this subsection may be ex-
ercised only for the purposes of determining the need for re-
sponse, or choosing or taking any response action under this
title, or otherwise enforcing the provisions of this title.
(2) ACCESS TO INFORMATION.Any officer, employee, or repre-
sentative described in paragraph (1) may require any person
who has or may have information relevant to any of the follow-
ing to furnish, upon reasonable notice, information or docu-
ments relating to such matter:
(A) The identification, nature, and quantity of materials
which have been or are generated, treated, stored, or dis-
posed of at a vessel or facility or transported to a vessel or
facility.
(B) The nature or extent of a release or threatened release
of a hazardous substance or pollutant or contaminant at or
from a vessel or facility.
(C) Information relating to the ability of a person to pay
for or to perform a cleanup.
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In addition, upon reasonable notice, such person either (i) shall
grant any such officer, employee, or representative access at all
reasonable times to any vessel, facility, establishment, place,
property, or location to inspect and copy all documents or
records relating to such matters or (ii) shall copy and furnish to
the officer, employee, or representative all such documents or
records, at the option and expense of such person.
(3) ENTRY.Any officer, employee, or representative described
in paragraph (1) is authorized to enter at reasonable times any
of the following:
(A) Any vessel, facility, establishment, or other place or
property where any hazardous substance or pollutant or
contaminant may be or has been generated, stored, treated,
disposed of, or transported from.
(B) Any vessel, facility, establishment, or other place or
property from which or to which a hazardous substance or
pollutant or contaminant has been or may have been re-
leased.
(C) Any vessel, facility, establishment, or other place or
property where such release is or may be threatened.
(D) Any vessel, facility, establishment, or other place or
property where entry is needed to determine the need for re-
sponse or the appropriate response or to effectuate a re-
sponse action under this title.
(4) INSPECTION AND SAMPLES.
(A) AUTHORITY.Any officer, employee or representative
described in paragraph (1) is authorized to inspect and
obtain samples from any vessel, facility, establishment, or
other place or property referred to in paragraph (3) or from
any location of any suspected hazardous substance or pol-
lutant or contaminant. Any such officer, employee, or repre-
sentative is authorized to inspect and obtain samples of any
containers or labeling for suspected hazardous substances
or pollutants or contaminants. Each such inspection shall
be completed with reasonable promptness.
(B) SAMPLES.If the officer, employee, or representative
obtains any samples, before leaving the premises he shall
give to the owner, operator, tenant, or other person in
charge of the place from which the samples were obtained a
receipt describing the sample obtained and, if requested, a
portion of each such sample. A copy of the results of any
analysis made of such samples shall be furnished promptly
to the owner, operator, tenant, or other person in charge, if
such person can be located.
(5) COMPLIANCE ORDERS.
(A) ISSUANCE.If consent is not granted regarding any
request made by an officer, employee, or representative
under paragraph (2), (3), or (4), the President may issue an
order directing compliance with the request. The order may
be issued after such notice and opportunity for consultation
as is reasonably appropriate under the circumstances.
(B) COMPLIANCE.The President may ask the Attorney
General to commence a civil action to compel compliance
with a request or order referred to in subparagraph (A).
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Where there is a reasonable basis to believe there may be a
release or threat of a release of a hazardous substance or
pollutant or contaminant, the court shall take the follow-
ing actions:
(i) In the case of interference with entry or inspection,
the court shall enjoin such interference or direct com-
pliance with orders to prohibit interference with entry
or inspection unless under the circumstances of the
case the demand for entry or inspection is arbitrary
and capricious, an abuse of discretion, or otherwise not
in accordance with law.
(ii) In the case of information or document requests
or orders, the court shall enjoin interference with such
information or document requests or orders or direct
compliance with the requests or orders to provide such
information or documents unless under the circum-
stances of the case the demand for information or doc-
uments is arbitrary and capricious, an abuse of discre-
tion, or otherwise not in accordance with law.
The court may assess a civil penalty not to exceed $25,000
for each day of noncompliance against any person who un-
reasonably fails to comply with the provisions of paragraph
(2), (3), or (4) or an order issued pursuant to subpctragraph
(A) of this paragraph.
(6) OTHER AUTHORITY.Nothing in this subsection shall pre-
clude the President from securing access or obtaining informa-
tion in any other lawful manner.
[(2XA)] (7) CONFIDENTIALITY OF INFORMATION.(A) Any
records, reports, or information obtained from any person
under this section (including records, reports, or information
obtained by representatives of the President) shall be available
to the public, except that upon a showing satisfactory to the
President (or the State, as the case may be) by any person that
records, reports, or information, or particular part thereof
(other than health or safety effects data), to which the Presi-
dent (or the State, as the case may be) or any officer, employee,
or representative has access under this section if made public
would divulge information entitled to protection under section
1905 of title 18 of the United States Code, such information or
particular portion thereof shall be considered confidential in
accordance with the purposes of that section, except that such
record, report, document or information may be disclosed to
other officers, employees, or authorized representatives of the
United States concerned with carrying out this Act, or when
relevant in any proceeding under this Act.
(B) Any person not subject to the provisions of section 1905
of title 18 of the United States Code who knowingly and will-
fully divulges or discloses any information entitled to protec-
tion under this subsection shall, upon conviction, be subject to
a fine of not more than $5,000 or to imprisonment not to
exceed one year, or both.
(C) In submitting data under this Act, a person required to
provide such data may (i) designate the data which such person
believes is entitled to protection under this subsection and (ii)
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22
submit such designated data separately from other data sub-
mitted under this Act. A designation under this paragraph
shall be made in writing and in such manner as the President
may prescribe by regulation. .
(D) Notwithstanding any limitation contained in this section
or any other provision of law, all information reported to or
otherwise obtained by the President (or any representative of
the President) under this Act shall be made available, upon
written request of any duly authorized committee of the Con-
gress, to such committee.
(E) No person required to provide information under this Act
may claim that the information is entitled to protection under
this paragraph unless such person shows each of the following:
(i) Such person has not disclosed the information to any
other person, other than a member of a local emergency
planning committee established under title III of the
Amendments and Reauthorization Act of 1986, an officer
or employee of the United States or a State or local govern-
ment, an employee of such person, or a person who is bound
by a confidentiality agreement, and such person has taken
reasonable measures to protect the confidentiality of such
information and intends to continue to take such measures.
(ii) The information is not required to be disclosed, or
otherwise made available, to the public under any other
Federal or State law.
(Hi) Disclosure of the information is likely to cause sub-
stantial harm to the competitive position of such person.
(iv) The specific chemical identity, if sought to be protect-
ed, is not readily discoverable through reverse engineering.
(F) The following information with respect to any hazardous
substance at the facility or vessel shall not be entitled to protec-
tion under this paragraph:
(i) The trade name, common name, or generic class or cat-
egory of the hazardous substance.
(ii) The physical properties of the substance, including its
boiling point, melting point, flash point, specific gravity,
vapor density, solubility in water, and vapor pressure at 20
degrees Celsius.
(Hi) The hazards to health and the environment posed by
the substance, including physical hazards (such as explo-
sion) and potential acute and chronic health hazards.
(iv) The potential routes of human exposure to the sub-
stance at the facility, establishment, place, or property
being investigated, entered, or inspected under this subsec-
tion.
(v) The location of disposal of any waste stream.
(vi) Any monitoring data or analysis of monitoring data
pertaining to disposal activities.
(vii) Any hydrogeologic or geologic data.
(viii) Any groundwater monitoring data.
(f) In awarding contracts to any person engaged in response ac-
tions, the President or the State, in any case where it is awarding
contracts pursuant to a contract entered into under subsection (d)
of this section, shall require compliance with Federal health and
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23
safety standards established under section 301(f) of this Act by con-
tractors and subcontractors as a condition of such contracts.
(gXD All laborers and mechanics employed by contractors or sub-
contractors in the performance of construction, repair, or alter-
ation work funded in whole or in part under this section shall be
paid wages at rates not less than those prevailing on projects of a
character similar in the locality as determined by the Secretary of
Labor in accordance with the Davis-Bacon Act. The President shall
not approve any such funding without first obtaining adequate as-
surance that required labor standards will be maintained upon the
construction work.
(2) The Secretary of Labor shall have, with respect to the labor
standards specified in paragraph (1), the authority and functions
set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R.
3176; 64 Stat. 1267) and section 276c of title 40 of the United States
Code.
(h) Notwithstanding any other provision of law, subject to the
provisions of section 111 of this Act, the President may authorize
the use of such emergency procurement powers as he deems neces-
sary to effect the purpose of this Act. Upon determination that
such procedures are necessary, the President shall promulgate reg-
ulations prescribing the circumstances under which such authority
shall be used and the procedures governing the use of such author-
ity.
(iYU There is hereby established within the Public Health Serv-
ice an agency, to be known as the Agency for Toxic Substances and
Disease Registry, which shall report directly to the Surgeon Gener-
al of the United States. The Administrator of said Agency shall,
with the cooperation of the Administrator of the Environmental
Protection Agency, the Commissioner of the Food and Drug Admin-
istration, the Directors of the National Institute of Medicine, Na-
tional Institute of Environmental Health Sciences, National Insti-
tute of Occupational Safety and Health, Centers for Disease Con-
trol, the Administrator of the Occupational Safety and Health Ad-
ministration, [and] the Administrator of the Social Security Ad-
ministration, the Secretary of Transportation and appropriate State
and local health officials, effectuate and implement the health re-
lated authorities of this Act. In addition, said Administrator
shall
[(1)3 (A) in cooperation with the States, establish and main-
tain a national registry of serious diseases and illnesses and a
national registry of persons exposed to toxic substances;
[(2)3 (B) establish and maintain inventory of literature, re-
search, and studies on the health effects of toxic substances;
[(3)5 (C) in cooperation with the States, and other agencies
of the Federal Government, establish and maintain a complete
listing of areas closed to the public or otherwise restricted in
use because of toxic substance contamination;
[(4)3 (D) in cases of public health emergencies caused or be-
lieved to be caused by exposure to toxic substances, provide
medical care and testing to exposed individuals, including but
not limited to tissue sampling, chromosomal testing, where ap-
propriate, epidemiological studies, or any other assistance ap-
propriate under the circumstances; and
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24
[(5)] (E) either independently or as part of other health
status survey, conduct periodic survey and screening programs
to determine relationships between exposure to toxic sub-
stances and illness. In cases of public health emergencies, ex-
posed persons shall be eligible for admission to hospitals and
other facilities and services operated or provided by the Public
Health Service.
(j) ACQUISITION OF PROPERTY.
(1) AUTHORITY.The President is authorized to acquire, by
purchase, lease, condemnation, donation, or otherwise, any real
property or any interest in real property that the President in
his discretion determines is needed to conduct a remedial action
under this Act. There shall be no cause of action to compel the
President to acquire any interest in real property under this Act.
(2) STATE ASSURANCE.The President may use the authority
of paragraph (1) for a remedial action only if, before an interest
in real estate is acquired under this subsection, the State in
which the interest to be acquired is located assures the Presi-
dent, through a contract or cooperative agreement or otherwise,
that the State will accept transfer of the interest following com-
pletion of the remedial action.
(3) EXEMPTION.No Federal, State, or local government
agency shall be liable under this Act solely as a result of ac-
quiring an interest in real estate under this subsection.
(2XA) Within 6 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986, the Administrator of
the Agency for Toxic Substances and Disease Registry ("ATSDR")
and the Administrator of the Environmental Protection Agency
("EPA ") shall prepare a list, in order of priority, of at least 100haz-
ardous substances which are most commonly found at facilities on
the National Priorities List and which, in their sole discretion, they
determine are posing the most significant potential threat to human
health due to their known or suspected toxicity to humans and the
potential for human exposure to such substances at facilities on the
National Priorities List or at facilities to which a response to a re-
lease or a threatened release under this section is under consider-
ation.
(B) Within 24 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986, the Administrator of
ATSDR and the Administrator of EPA shall revise the list prepared
under subparagraph (A). Such revision shall include, in order of
priority, the addition of 100 or more such hazardous substances. In
each of the 3 consecutive 12-month periods that follow, the Admin-
istrator of ATSDR and the Administrator of EPA shall revise, in
the same manner as provided in the 2 preceding sentences, such list
to include not fewer than 25 additional hazardous substances per
revision. The Administrator of ATSDR and the Administrator of
EPA shall not less often than once every year thereafter revise such
list to include additional hazardous substances in accordance with
the criteria in subparagraph (A).
(3) Based on all available information, including information
maintained under paragraph (1XB) and data developed and collect-
ed on the health effects of hazardous substances under this para-
graph, the Administrator of ATSDR shall prepare toxicological pro-
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25
files of each of the substances listed pursuant to paragraph (2). The
toxicological profiles shall be prepared in accordance with guide-
lines developed by the Administrator of ATSDR and the Adminis-
trator of EPA. Such profiles shall include, but not be limited to
each of the following:
(A) An examination, summary, and interpretation of avail-
able toxicological information and epidemiologic evaluations on
a hazardous substance in order to ascertain the levels of signifi-
cant human exposure for the substance and the associated
acute, subacute, and chronic health effects.
(B) A determination of whether adequate information on the
health effects of each substance is available or in the process of
development to determine levels of exposure which present a sig-
nificant risk to human health of acute, subacute, and chronic
health effects.
(C) Where appropriate, an identification of toxicological test-
ing needed to identify the types or levels of exposure that may
present significant risk of adverse health effects in humans.
Any toxicological profile or revision thereof shall reflect the Admin-
istrator of A TSDR 's assessment of all relevant toxicological testing
which has been peer reviewed. The profiles required to be prepared
under this paragraph for those hazardous substances listed under
subparagraph (A) of-paragraph (2) shall be completed, at a rate of
no fewer than 25 per year, within 4 years after the enactment of the
Superfund Amendments and Reauthorization Act of 1986. A profile
required on a substance listed pursuant to subparagraph (B) of
paragraph (2) shall be completed within 3 years after addition to
the list. The profiles prepared under this paragraph shall be of
those substances highest on the list of priorities under paragraph (2)
for which profiles have not previously been prepared. Profiles re-
quired under this paragraph shall be revised and republished as
necessary, but no less often than once every 3 years. Such profiles
shall be provided to the States and made available to other interest-
ed parties.
(4) The Administrator of the ATSDR shall provide consultations
upon request on health issues relating to exposure to hazardous or
toxic substances, on the basis of available information, to the Ad-
ministrator of EPA, State officials, and local officials. Such consul-
tations to individuals may be provided by States under cooperative
agreements established under this Act.
(5XA) For each hazardous substance listed pursuant to paragraph
(2), the Administrator of ATSDR (in consultation with the Adminis-
trator of EPA and other agencies and programs of the Public
Health Service) shall assess whether adequate information on the
health effects of such substance is available. For any such substance
for which adequate information is not available (or under develop-
ment), the Administrator of ATSDR, in cooperation with the Direc-
tor of the National Toxicology Program, shall assure the initiation
of a program of research designed to determine the health effects
(and techniques for development of methods to determine such
health effects) of such substance. Where feasible, such program
shall seek to develop methods to determine the health effects of such
substance in combination with other substances with which it is
commonly found. Before assuring the initiation of such program,
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the Administrator of ATSDR shall consider recommendations of the
Interagency Testing Committee established under section 4(e) of the
Toxic Substances Control Act on the types of research that should be
done. Such program shall include, to the extent necessary to supple-
ment existing information, but shall not be limited to
(i) laboratory and other studies to determine short, intermedi-
ate, and long-term health effects;
(ii) laboratory and other studies to determine organ-specific,
site-specific, and system-specific acute and chronic toxicity;
(Hi) laboratory and other studies to determine the manner in
which such substances are metabolized or to otherwise develop
an understanding of the biokinetics of such substances; and
(iv) where there is a possibility of obtaining human data, the
collection of such information.
(B) In assessing the need to perform laboratory and other studies,
as required by subparagraph (A), the Administrator of ATSDR
shall consider
(i) the availability and quality of existing test data concern-
ing the substance on the suspected health effect in question;
(ii) the extent to which testing already in progress will, in a
timely fashion, provide data that will be adequate to support
the preparation of toxicological profiles as required by para-
graph (3); and
(Hi) such other scientific and technical factors as the Admin-
istrator of ATSDR may determine are necessary for the effective
implementation of this subsection.
(C) in the development and implementation of any research pro-
gram under this paragraph, the Administrator of ATSDR and the
Administrator of EPA shall coordinate such research program im-
plemented under this paragraph with the National Toxicology Pro-
gram and with programs of toxicological testing established under
the Toxic Substances Control Act and the Federal Insecticide, Fun-
gicide and Rodenticide Act. The purpose of such coordination shall
be to avoid duplication of effort and to assure that the hazardous
substances listed pursuant to this subsection are tested thoroughly
at the earliest practicable date. Where appropriate, consistent with
such purpose, a research program under this paragraph may be car-
ried out using such programs of toxicological testing.
(D) It is the sense of the Congress that the costs of research pro-
grams under this paragraph be borne by the manufacturers and
processors of the hazardous substance in question, as required in
programs of toxicological testing under the Toxic Substances Con-
trol Act Within 1 year after the enactment of the Superfund
Amendments and Reauthorization Act of 1986, the Administrator of
EPA shall promulgate regulations which provide, where appropri-
ate, for payment of such costs by manufacturers and processors
under the Toxic Substances Control Act, and registrants under the
Federal Insecticide, Fungicide, and Rodenticide Act, and recovery of
such costsfrom responsible parties under this Act.
(6XA) The Administrator of ATSDR shall perform a health as-
sessment for each facility on the National Priorities List established
under section 105. Such health assessment shall be completed not
later than December 10, 1988, for each facility proposed for inclu-
sion on such list prior to the date of the enactment of the Superfund
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27
Amendments and Reauthorization Act of 1986 or not later than one
year after the date of proposal for inclusion on such list for each
facility proposed for inclusion on such list after such date of enact-
ment.
(B) The Administrator of ATSDR may perform health assess-
ments for releases or facilities where individual persons or licensed
physicians provide information that individuals have been exposed
to a hazardous substance, for which the probable source of such ex-
posure is a release. In addition to other methods (formal or infor-
mal) of providing such information, such individual persons or li-
censed physicians may submit a petition to the Administrator of
ATSDR providing such information and requesting a health assess-
ment. If such a petition is submitted and the Administrator of
ATSDR does not initiate a health assessment, the Administrator of
ATSDR shall provide a written explanation of why a health assess-
ment is not appropriate.
(C) In determining the priority in which to conduct health assess-
ments under this subsection, the Administrator of ATSDR, in con-
sultation with the Administrator of EPA, shall give priority to
those facilities at which there is documented evidence of the release
of hazardous substances, at which the potential risk to human
health appears highest, and for which in the judgment of the Ad-
ministrator of ATSDR existing health assessment data are inad-
equate to assess the potential risk to human health as provided in
subparagraph (F). In determining the priorities for conducting
health assessments under this subsection, the Administrator of
ATSDR shall consider the National Priorities List schedules and
the needs of the Environmental Protection Agency and other Feder-
al agencies pursuant to schedules for remedial investigation and
feasibility studies.
(D) Where a health assessment is done at a site on the National
Priorities List, the Administrator of ATSDR shall complete such as-
sessment promptly and, to the maximum extent practicable, before
the completion of the remedial investigation and feasibility study at
the facility concerned.
(E) Any State or political subdivision carrying out a health assess-
ment for a facility shall report the results of the assessment to the
Administrator of ATSDR and the Administrator of EPA and shall
include recommendations with respect to further activities which
need to be carried out under this section. The Administrator of
ATSDR shall state such recommendation in any report on the re-
sults of any assessment carried out' directly by the Administrator of
ATSDR for such facility and shall issue periodic reports which in-
clude the results of all the assessments carried out under this sub-
section.
(F) For the purposes of this subsection and section lll(cX4), the
term "health assessments " shall include preliminary assessments of
the potential risk to human health posed by individual sites and fa-
cilities, based on such factors as the nature and extent of contami-
nation, the existence of potential pathways of human exposure (in-
cluding ground or surface water contamination, air emissions, and
food chain contamination), the size and potential susceptibility of
the community within the likely pathways of exposure, the compari-
son of expected human exposure levels to the short-term and long-
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term health effects associated with identified hazardous substances
and any available recommended exposure or tolerance limits for
such hazardous substances, and the comparison of existing morbidi-
ty and mortality data on diseases that may be associated with the
observed levels of exposure. The Administrator of ATSDR shall use
appropriate data, risk assessments, risk evaluations and studies
available from the Administrator of EPA.
(G) The purpose of health assessments under this subsection shall
be to assist in determining whether actions under paragraph (11) of
this subsection should be taken to reduce human exposure to haz-
ardous substances from a facility and whether additional informa-
tion on human exposure and associated health risks is needed and
should be acquired by conducting epidemiological studies under
paragraph (7), establishing a registry under paragraph (8), establish-
ing a health surveillance program under paragraph (9), or through
other means. In using the results of health assessments for deter-
mining additional actions to be taken under this section, the Ad-
ministrator of ATSDR may consider additional information on the
risks to the potentially affected population from all sources of such
hazardous substances including known point or nonpoint sources
other than those from the facility in question.
(H) At the completion of each health assessment, the Administra-
tor of ATSDR shall provide the Administrator of EPA and each af-
fected State with the results of such assessment, together with any
recommendations for further actions under this subsection or other-
wise under this Act. In addition, if the health assessment indicates
that the release or threatened release concerned may pose a serious
threat to human health or the environment, the Administrator of
ATSDR shall so notify the Administrator of EPA who shall
promptly evaluate such release or threatened release in accordance
with the hazard ranking system referred to in section 105(aX8XA) to
determine whether the site shall be placed on the National Prior-
ities List or, if the site is already on the list, the Administrator of
ATSDR may recommend to the Administrator of EPA that the site
be accorded a higher priority.
(7XA) Whenever in the judgment of the Administrator of ATSDR
it is appropriate on the basis of the results of a health assessment,
the Administrator of ATSDR shall conduct a pilot study of health
effects for selected groups of exposed individuals in order to deter-
mine the desirability of conducting full scale epidemiological or
other health studies of the entire exposed population.
(B) Whenever in the judgment of the Administrator of ATSDR it
is appropriate on the basis of the results of such pilot study or other
study or health assessment, the Administrator of ATSDR shall con-
duct such full scale epidemiological or other health studies as may
be necessary to determine the health effects on the population ex-
posed to hazardous substances from a release or threatened release.
If a significant excess of disease in a population is identified, the
letter of transmittal of such study shall include an assessment of
other risk factors, other than a release, that may, in the judgment of
the peer review group, be associated with such disease, if such risk
factors were not taken into account in the design or conduct of the
study.
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(8) In any case in which the results of a health assessment indi-
cate a potential significant risk to human health, the Administrator
ofATSDR shall consider whether the establishment of a registry of
exposed persons would contribute to accomplishing the purposes of
this subsection, taking into account circumstances bearing on the
usefulness of such a registry, including the seriousness or unique
character of identified diseases or the likelihood of population mi-
gration from the affected area.
(9) Where the Administrator ofATSDR has determined that there
is a significant increased risk of adverse health effects in humans
from exposure to hazardous substances based on the results of a
health assessment conducted under paragraph (6), an epidemiologic
study conducted under paragraph (7), or an exposure registry that
has been established under paragraph (8), and the Administrator of
ATSDR has determined that such exposure is the result of a release
from a facility, the Administrator ofATSDR shall initiate a health
surveillance program for such population. This program shall in-
clude but not be limited to
(A) periodic medical testing where appropriate of population
subgroups to screen for diseases for which the population or
subgroup is at significant increased risk; and
(a) a mechanism to refer for treatment those individuals
within such population who are screened positive for such dis-
eases.
(10) Two years after the date of the enactment of the Superfund
Amendments and Reauthorization Act of 1986, and every 2 years
thereafter, the Administrator of ATSDR shall prepare and submit
to the Administrator of EPA and to the Congress a report on the
results of the activities ofATSDR regarding
(A) health assessments and pilot health effects studies con-
ducted;
(B) epidemiologic studies conducted;
(C) hazardous substances which have been listed under para-
graph (2), toxicological profiles which have been developed, and
toxicologic testing which has been conducted or which is being
conducted under this subsection;
(D) registries established under paragraph (8); and
(E) an overall assessment, based on the results of activities
conducted by the Administrator ofATSDR, of the linkage be-
tween human exposure to individual or combinations of haz-
ardous substances due to releases from facilities covered by this
Act or the Solid Waste Disposal Act and any increased inci-
dence or prevalence of adverse health effects in humans.
(11) If a health assessment or other study carried out under this
subsection contains a finding that the exposure concerned presents a
significant risk to human health, the President shall take such
steps as may be necessary to reduce such exposure and eliminate or
substantially mitigate the significant risk to human health. Such
steps may include the use of any authority under this Act, includ-
ing, but not limited to
(A) provision of alternative water supplies, and
(B) permanent or temporary relocation of individuals.
In any case in which information is insufficient, in the judgment of
the Administrator ofATSDR or the President to determine a signif-
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icant human exposure level with respect to a hazardous substance,
the President may take such steps as may be necessary to reduce the
exposure of any person to such hazardous substance to such level as
the President deems necessary to protect human health.
(12) In any case which is the subject of a petition, a health assess-
ment or study, or a research program under this subsection, nothing
in this subsection shall be construed to delay or otherwise affect or
impair the authority of the President, the Administrator of ATSDR,
or the Administrator of EPA to exercise any authority vested in the
President, the Administrator of ATSDR or the Administrator of
EPA under any other provision of law (including, but not limited
to, the imminent hazard authority of section 7003 of the Solid
Waste Disposal Act) or the response and abatement authorities of
this Act.
(13) All studies and results of research conducted under this sub-
section (other than health assessments) shall be reported or adopted
only after appropriate peer review. Such peer review shall be com-
pleted, to the maximum extent practicable, within a period of 60
days. In the case of research conducted under the National Toxicol-
ogy Program, such peer review may be conducted by the Board of
Scientific Counselors. In the case of other research, such peer review
shall be conducted by panels consisting of no less than three nor
more than seven members, who shall be disinterested scientific ex-
perts selected for such purpose by the Administrator of ATSDR or
the Administrator of EPA, as appropriate, on the basis of their rep-
utation for scientific objectivity and the lack of institutional ties
with any person involved in the conduct of the study or research
under review. Support services for such panels shall be provided by
the Agency for Toxic Substances and Disease Registry, or by the En-
vironmental Protection Agency, as appropriate.
(14) In the implementation of this subsection and other health-re-
lated authorities of this Act, the Administrator of ATSDR shall as-
semble, develop as necessary, and distribute to the States, and upon
request to medical colleges, physicians, and other health profession-
als, appropriate educational materials (including short courses) on
the medical surveillance, screening, and methods of diagnosis and
treatment of injury or disease related to exposure to hazardous sub-
stances (giving priority to those listed in paragraph (2)), through
such means as the Administrator of ATSDR deems appropriate.
(15) The activities of the Administrator of ATSDR described in
this subsection and section lll(c)(4) shall be carried out by the Ad-
ministrator of ATSDR, either directly or through cooperative agree-
ments with States (or political subdivisions thereof) which the Ad-
ministrator of ATSDR determines are capable of carrying out such
activities. Such activities shall include provision of consultations on
health information, the conduct of health assessments, including
those required under section 3019(b) of the Solid Waste Disposal
Act, health studies, registries, and health surveillance.
(16) The President shall provide adequate personnel for ATSDR,
which shall not be fewer than 100 employees. For purposes of deter
mining the number of employees under this subsection, an employet
employed by ATSDR on a part-time career employment basis shal
be counted as a fraction which is determined by dividing 40 houn
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into the average number of hours of such employee's regularly
scheduled workweek.
(17) In accordance with section 120 (relating to Federal facilities),
the Administrator of ATSDR shall have the same authorities under
this section with respect to facilities owned or operated by a depart-
ment, agency, or instrumentality of the United States as the Admin-
istrator of ATSDR has with respect to any nongovernmental entity.
(18) If the Administrator of ATSDR determines that it is appro-
priate for purposes of this section to treat a pollutant or contami-
nant as a hazardous substance, such pollutant or contaminant shall
be treated as a hazardous substance for such purpose.
NATIONAL CONTINGENCY PLAN
SEC. 105. (a) REVISION AND REPUBLICATION.Within one hundred
and eighty days after the enactment of this Act, the President
shall, after notice and opportunity for public comments, revise and
republish the national contingency plan for the removal of oil and
hazardous substances, originally prepared and published pursuant
to section 311 of the Federal Water Pollution Control Act, to reflect
and effectuate the responsibilities and powers created by this Act,
in addition to those matters specified in section 311(cX2). Such revi-
sion shall include a section of the plan to be known as the national
hazardous substance response plan which shall establish proce-
dures and standards for responding to releases of hazardous sub-
stances, pollutants, and contaminants, which shall include at a
minimum:
(1) methods for discovering and investigating facilities at
which hazardous substances have been disposed of or otherwise
come to be located;
(2) methods for evaluating, including analyses of relative
cost, and remedying any releases or threats of releases from fa-
cilities which pose substantial danger to the public health or
the environment;
(3) methods and criteria for determining the appropriate
extent of removal, remedy, and other measures authorized by
this Act;
(4) appropriate roles and responsibilities for the Federal,
State, and local governments and for interstate and nongovern-
mental entities in effectuating the plan;
(5) provision for identification, procurement, maintenance,
and storage of response equipment and supplies;
(6) a method for and assignment of responsibility for report-
ing the existence of such facilities which may be located on fed-
erally owned or controlled properties and any releases of haz-
ardous substances from such facilities;
(7) means of assuring that remedial action measures are cost-
effective over the period of potential exposure to the hazardous
substances or contaminated materials;
(8XA) criteria for determining priorities among releases or
threatened releases throughput the United States for the pur-
pose of taking remedial action and, to the extent practicable
taking into account the potential urgency of such action, for
the purpose of taking removal action. Criteria and priorities
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under this paragraph shall be based upon relative risk or
danger to public health or welfare or the environment, in the
judgment of the President, taking into account to the extent
possible the population at risk, the hazard potential of the haz-
ardous substances at such facilities, the potential for contami-
nation of drinking water supplies, the potential for direct
human contact, the potential for destruction of sensitive eco-
systems, the damage to natural resources which may affect the
human food chain and which is associated with any release or
threatened release, the contamination or potential contamina-
tion of the ambient air which is associated with the release or
threatened release, State preparedness to assume State costs
and responsibilities, and other appropriate factors;
(B) based upon the criteria set forth in subparagraph (A) of
this paragraph, the President shall list as part of the plan na-
tional priorities among the known releases or threatened re-
leases throughout the United States and shall revise the list no
less often than annually. Within one year after the date of en-
actment of this Act, and annually thereafter, each State shall
establish and submit for consideration by the President prior-
ities for remedial action among known releases and potential
releases in that State based upon the criteria set forth in sub-
paragraph (A) of this paragraph. In assembling or revising the
national list, the President shall consider any priorities estab-
lished by the States. To the extent practicable, [at least four
hundred of] the highest priority facilities shall be designated
individually and shall be referred to as the "top priority
among known response targets", and, to the extent practicable,
shall include among the one hundred highest priority [facili-
ties at least] facilities one such facility from each State which
shall be the facility designated by the State as presenting the
greatest danger to public health or welfare or the environment
among the known facilities in such State. A State shall be al-
lowed to designate its highest priority facility only once. Other
priority facilities or incidents may be listed singly or grouped
for response priority purposes; [and]
(9) specified roles for private organizations and entities in
preparation for response and in responding to releases of haz-
ardous substances, including identification of appropriate
qualifications and capacity therefor [.] and including consider-
ation of minority firms in accordance with subsection (f); and
(10) standards and testing procedures by which alternative or
innovative treatment technologies can be determined to be ap-
propriate for utilization in response actions authorized by this
Act.
The plan shall specify procedures, techniques, materials, equip-
ment, and methods to be employed in identifying, removing, or
remedying releases of hazardous substances comparable to those
required under section 311(cX2) (F) and (G) and (jXD of the Federal
Water Pollution Control Act. Following publication of the revised
national contingency plan, the response to and actions to minimize
damage from hazardous substances releases shall, to the greatest
extent possible, be in accordance with the provisions of the plan.
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The President may, from time to time, revise and republish the na-
tional contingency plan.
(b) REVISION OF PLAN.Not later than 18 months after the enact-
ment of the Superfund Amendments and Reauthorization Act of
1986, the President shall revise the National Contingency Plan to re-
flect the requirements of such amendments. The portion of such
Plan known as "the National Hazardous Substance Response Plan"
shall be revised to provide procedures and standards for remedial
actions undertaken pursuant to this Act which are consistent with
amendments made by the Superfund Amendments and Reauthoriza-
tion Act of 1986 relating to the selection of remedial action.
(c) HAZARD RANKING SYSTEM.
(1) REVISION.Not later than 18 months after the enactment
of the Superfund Amendments and Reauthorization Act of 1986
and after publication of notice and opportunity for submission
of comments in accordance with section 553 of title 5, United
States Code, the President shall by rule promulgate amend-
ments to the hazard ranking system in effect on September 1,
1984. Such amendments shall assure, to the maximum extent
feasible, that the hazard ranking system accurately assesses the
relative degree of risk to human health and the environment
posed by sites and facilities subject to review. The President
shall establish an effective date for the amended hazard rank-
ing system which is not later than 24 months after enactment
of the Superfund Amendments and Reauthorization Act of
1986. Such amended hazard ranking system shall be applied to
any site or facility to be newly listed on the National Priorities
List after the effective date established by the President. Until
such effective date of the regulations, the hazard ranking
system in effect on September 1, 1984, shall continue in full
force and effect.
(2) HEALTH ASSESSMENT OF WATER CONTAMINATION RISKS.In
carrying out this subsection, the President shall ensure that the
human health risks associated with the contamination or po-
tential contamination (either directly or as a result of the
runoff of any hazardous substance or pollutant or contaminant
from sites or facilities) of surface water are appropriately as-
sessed where such surface water is, or can be, used for recrea-
tion or potable water consumption. In making the assessment
required pursuant to the preceding sentence, the President shall
take into account the potential migration of any hazardous sub-
stance or pollutant or contaminant through such surface water
to downstream sources of drinking water.
(3) REEVALUATION NOT REQUIRED.The President shall not be
required to reevaluate, after the date of the enactment of the
Superfund Amendments and Reauthorization Act of 1986, the
hazard ranking of any facility which was evaluated in accord-
ance with the criteria under this section before the effective
date of the amendments to the hazard ranking system under
this subsection and which was assigned a national priority
under the National Contingency Plan.
(4) NEW INFORMATION.Nothing in paragraph (3) shall pre-
clude the President from taking new information into account
in undertaking response actions under this Act.
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(d) PETITION FOR ASSESSMENT OF RELEASE.Any person who is,
or may be, affected by a release or threatened release of a hazardous
substance or pollutant or contaminant, may petition the President
to conduct a preliminary assessment of the hazards to public health
and the environment which are associated with such release or
threatened release. If the President has not previously conducted a
preliminary assessment of such release, the President shall, within
12 months after the receipt of any such petition, complete such as-
sessment or provide an explanation of why the assessment is not ap-
propriate. If the preliminary assessment indicates that the release or
threatened release concerned may pose a threat to human health or
the environment, the President shall promptly evaluate such release
or threatened release in accordance with the hazard ranking system
referred to in paragraph (8XA) of subsection (a) to determine the na-
tional priority of such release or threatened release.
(e) RELEASES FROM EARLIER SITES.Whenever there has been,
after January 1, 1985, a significant release of hazardous substances
or pollutants or contaminants from a site which is listed by the
President as a "Site Cleaned up To Date" on the National Prior-
ities List (revised edition, December 1984) the site shall be restored
to the National Priorities List, without application of the hazard
ranking system.
(f) MINORITY CONTRACTORS.In awarding contracts under this
Act, the President shall consider the availability of qualified minor-
ity firms. The President shall describe, as part of any annual report
submitted to the Congress under this Act, the participation of mi-
nority firms in contracts carried out under this Act. Such report
shall contain a brief description of the contracts which have been
awarded to minority firms under this Act and of the efforts made
by the President to encourage the participation of such firms in pro-
grams carried out under this Act.
(g) SPECIAL STUDY WASTES.
(1) APPLICATION.This subsection applies to facilities
(A) which as of the date of enactment of the Superfund
Amendments and Reauthorization Act of 1986 were not in-
cluded on, or proposed for inclusion on, the National Prior-
ities List; and
(B) at which special study wastes described in paragraph
(2), (SXAXii) or (SXAXiii) of section 3001(b) of the Solid
Waste Disposal Act are present in significant quantities, in-
cluding any such facility from which there has been a re-
lease of a special study waste.
(2) CONSIDERATIONS IN ADDING FACILITIES TO NPL.Pending
revision of the hazard ranking system under subsection (c), the
President shall consider each of the following factors in adding
facilities covered by this section to the National Priorities List:
(A) The extent to which hazard ranking system score for
the facility is affected by the presence of any special study
waste at, or any release from, such facility.
(B) Available information as to the quantity, toxicity,
and concentration of hazardous substances that are con-
stituents of any special study waste at, or released from
such facility, the extent of or potential for release of such
hazardous constituents, the exposure or potential exposure
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35
to human population and the environment, and the degree
of hazard to human health or the environment posed by the
release of such hazardous constituents at such facility. This
subparagraph refers only to available information on
actual concentrations of hazardous substances and not on
the total quantity of special study waste at such facility.
(3) SAVINGS PROVISIONS.Nothing in this subsection shall be
construed to limit the authority of the President to remove any
facility which as of the date of enactment of the Superfund
Amendments and Reauthorization Act of 1986 is included on
the National Priorities List from such List, or not to list any
facility which as of such date is proposed for inclusion on such
list.
(4) INFORMATION GATHERING AND ANALYSIS.Nothing in this
Act shall be construed to preclude the expenditure of monies
from the Fund for gathering and analysis of information which
will enable the President to consider the specific factors re-
quired by paragraph (2).
ABATEMENT ACTION
SEC. 106. (a) .In addition to any other action taken by a State or
local government, when the President determines that there may
be an imminent and substantial endangerment to the public health
or welfare or the environment because of an actual or threatened
release of a hazardous substance from a facility, he may require
the Attorney General of the United States to secure such relief as
may be necessary to abate such danger or threat, and the district
court of the United States in the district in which the threat occurs
shall have jurisdiction to grant such relief as the public interest
and the equities of the case may require. The President may also,
after notice to the affected State, take other action under this sec-
tion including, but not limited to, issuing such orders as may be
necessary to protect public health and welfare and the environ-
ment.
(bVZ> Any person [who willfully] who, without sufficient cause,
willfully violates, or fails or refuses to comply with, any order of
the President under subsection (a) may, in an action brought in the
appropriate United States district court to enforce such order, be
fined not more than C$5,000] $25,000 for each day in which such
violation occurs or such failure to comply continues.
(2XA) Any person who receives and complies with the terms of any
order issued under subsection (a) may, within 60 days after comple-
tion of the required action, petition the President for reimbursement
from the Fund for the reasonable costs of such action, plus interest.
Any interest payable under this paragraph shall accrue on the
amounts expended from the date of expenditure at the same rate as
specified for interest on investments of the Hazardous Substance Su-
perfund established under subchapter A of chapter 98 of the Inter-
nal Revenue Code of 1954.
(B) If the President refuses to grant all or part of a petition made
under this paragraph, the petitioner may within 30 days of receipt
of such refusal file an action against the President in the appropri-
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ate United States district court seeking reimbursement from the
Fund
(C) Except as provided in subparagraph CD), to obtain reimburse-
ment, the petitioner shall establish by a preponderance of the evi-
dence that it is not liable for response costs under section 107(a) and
that costs for which it seeks reimbursement are reasonable in light
of the action required by the relevant order.
(D) A petitioner who is liable for response costs under section
107(a) may also recover its reasonable costs of response to the extent
that it can demonstrate, on the administrative record, that the
President's decision in selecting the response action ordered was ar-
bitrary and capricious or was otherwise not in accordance with law.
Reimbursement awarded under this subparagraph shall include all
reasonable response costs incurred by the petitioner pursuant to the
portions of the order found to be arbitrary and capricious or other-
wise not in accordance with law.
(E) Reimbursement awarded by a court under subparagraph (C) or
(D) may include appropriate costs, fees, and other expenses in ac-
cordance with subsections (a) and (d) of section 2412 of title 28 of
the United States Code.
(c) Within one hundred and eighty days after enactment of this
Act, the Administrator of the Environmental Protection Agency
shall, after consultation with the Attorney General, establish and
publish guidelines for using the imminent hazard, enforcement,
and emergency response authorities of this section and other exist-
ing statutes administered by the Administrator of the Environmen-
tal Protection Agency to effectuate the responsibilities and powers
created by this Act. Such guidelines shall to the extent practicable
be consistent with the national hazardous substance response plan,
and shall include, at a minimum, the assignment of responsibility
for coordinating response actions with the issuance of administra-
tive orders, enforcement of standards and permits, the gathering of
information, and other imminent hazard and emergency powers
authorized by (1) sections 311(cX2), 308, 309, and 504(a) of the Feder-
al Water Pollution Control Act, (2) sections 3007, 3008, 3013, and
7003 of the Solid Waste Disposal Act, (3) sections 1445 and 1431 of
the Safe Drinking Water Act, (4) sections 113, 114, and 303 of the
Clean Air Act, and (5) section 7 of the Toxic Substances Control
Act.
LIABILITY
SEC. 107. (a) Notwithstanding any other provision or rule of law,
and subject only to the defenses set forth in subsection (b) of this
section
(1) the owner and operator of a vessel [(otherwise subject to
the jurisdiction of the United States)] or a facility,
(2) any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazard-
ous substances were disposed of,
(3) any person who by contract, agreement, or otherwise ar-
ranged for disposal or treatment, or arranged with a trans-
porter for transport for disposal or treatment, of hazardous
substances owned or possessed by such person, by any other
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party or entity, at any facility or incineration vessel owned or
operated by another party or entity and containing such haz-
ardous substances, and
(4) any person who accepts or accepted any hazardous sub-
stances for transport to disposal or treatment facilities, inciner-
ation vessels or sites selected by such person, from which there
is a release, or a threatened release which causes the incur-
rence of response costs, of a hazardous substance, shall be
liable for
(A) all costs of removal or remedial action incurred by
the United States Government or a State or an Indian
tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by
any other person consistent with the national contingency
plan; [and]
(C) damages for injury to, destruction of, or loss of natu-
ral resources, including the reasonable costs of assessing
such injury, destruction, or loss resulting from such a re-
lease [.j; and
(D) the costs of any health assessment or health effects
study carried out under section 104(i).
The amounts recoverable in an action under this section shall in-
clude interest on the amounts recoverable under subparagraphs (A)
through (D). Such interest shall accrue from the later of (i) the date
payment of a specified amount is demanded in writing, or (ii) the
date of the expenditure concerned. The rate of interest on the out-
standing unpaid balance of the amounts recoverable under this sec-
tion shall be the same rate as is specified for interest on investments
of the Hazardous Substance Superfund established under subchap-
ter A of chapter 98 of the Internal Revenue Code of 1954- For pur-
poses of applying such amendments to interest under this subsec-
tion, the term "comparable maturity" shall be determined with ref-
erence to the date on which interest accruing under this subsection
commences.
(b) There shall be no liability under subsection (a) of this section
for a person otherwise liable who can establish by a preponderance
of the evidence that the release or threat of release of a hazardous
substance and the damages resulting therefrom were caused solely
by
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other than an employ-
ee or agent of the defendant, or than one whose act or omis-
sion occurs in connection with a contractual relationship, exist-
ing directly or indirectly, with the defendant (except where the
sole contractual arrangement arises from a published tariff
and acceptance for carriage by a common carrier by rail), if
the defendant establishes by a preponderance of the evidence
that (a) he exercised due care with respect to the hazardous
substance concerned, taking into consideration the characteris-
tics of such hazardous substance, in light of all relevant facts
and circumstances, and (b) he took precautions against foresee-
able acts or omissions of any such third party and the conse-
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38
quences that could foreseeably result from such acts or omis-
sions; or
(4) any combination of the foregoing paragraphs.
(cXl) Except as provided in paragraph (2) of this subsection, the
liability under this section of an owner or operator or other respon-
sible person for each release of a hazardous substance or incident
involving release of a hazardous substance shall not exceed
(A) for any vessel, other than an incineration vessel, which
carries any hazardous substance as cargo or residue, $300 per
gross ton, or $5,000,000, whichever is greater;
(B) for any other vessel, other than an incineration vessel,
$300 per gross ton, or $500,000, whichever is greater:
(C) for any motor vehicle, aircraft, pipeline (as defined in the
Hazardous Liquid Pipeline Safety Act of 1979), or rolling stock,
$50,000,000 or such lesser amount as the President shall estab-
lish by regulation, but in no event less than $5,000,000 (or, for
releases of hazardous substances as defined in section
10K14KA) of this title into the navigable waters, $8,000,000).
Such regulations shall take into account the size, type, loca-
tion, storage, and handling capacity and other matters relating
to the likelihood of release in each such class and to the eco-
nomic impact of such limits on each such class; or
(D) for any incineration vessel or any facility other than
those specified in subparagraph (C) of this paragraph, the total
of all costs of response plus $50,000,000 for any damaiges under
this title.
(2) Notwithstanding the limitations in paragraph (1) of this sub-
section, the liability of an owner or operator or other responsible
person under this section shall be the full and total costs of re-
sponse and damages, if (AXi) the release or threat of release of a
hazardous substance was the result of willful misconduct or willful
negligence within the privity or knowledge of such person, or (ii)
the primary cause of the release was a violation (within the privity
or knowledge of such person) of applicable safety, construction, or
operating standards or regulations; or (B) such person fails or re-
fuses to provide all reasonable cooperation and assistance request-
ed by a responsible public official in connection with response ac-
tivities under the national contingency plan with respect to regu-
lated carriers subject to the provisions of title 49 of the United
States Code or vessels subject to the provisions of title 33 or 46 of
the United States Code, subparagraph (AXii) of this paragraph
shall be deemed to refer to Federal standards or regulations.
(3) If any person who is liable for a release or threat of release of
a hazardous substance fails without sufficient cause to properly
provide removal or remedial action upon order of the President
pursuant to section 104 or 106 of this Act, such person may be
liable to the United States for punitive damages in an amount at
least equal to, and not more than three times, the amount of any
costs incurred by the Fund as a result of such failure to take
proper action. The President is authorized to commence a civil
action against any such person to recover the punitive damages,
which shall be in addition to any costs recovered from such person
pursuant to section 112(c) of this Act. Any moneys received by the
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United States pursuant to this subsection shall be deposited in the
Fund.
£(d) No person shall be liable under this title for damages as a
result of actions taken or omitted in the course of rendering care,
assistance, or advice in accordance with the national contingency
plan or at the direction of an onscene coordinator appointed under
such plan, with respect to an incident creating a danger to public
health or welfare or the environment as a result of any release of a
hazardous substance or the threat thereof. This subsection shall
not preclude liability for damages as the result of gross negligence
or intentional misconduct on the part of such person. For the pur-
poses of the preceding sentence, reckless, willful, or wanton miscon-
duct shall constitute gross negligence.]
(d) RENDERING CARE OR ADVICE.
(1) IN GENERAL.Except as provided in paragraph (2), no
person shall be liable under this title for costs or damages as a
result of actions taken or omitted in the course of rendering
care, assistance, or advice in accordance with the National Con-
tingency Plan ("NCP") or at the direction of an onscene coordi-
nator appointed under such plan, with respect to an incident
creating a danger to public health or welfare or the environ-
ment as a result of any releases of a hazardous substance or the
threat thereof. This paragraph shall not preclude liability for
costs or damages as the result of negligence on the part of such
person.
(2) STATE AND LOCAL GOVERNMENTS.No State or local gov-
ernment shall be liable under this title for costs or damages as
a result of actions taken in response to an emergency created by
the release or threatened release of a hazardous substance gen-
erated by or from a facility owned by another person. This para-
graph shall not preclude liability for costs or damages as a
result of gross negligence or intentional misconduct by the State
or local government. For the purpose of the preceding sentence,
reckless, willful, or wanton misconduct shall constitute gross
negligence.
(3) SAVINGS PROVISION.This subsection shall not alter the
liability of any person covered by the provisions of paragraph
(1), (2), (3), or (4) of subsection (a) of this section with respect to
the release or threatened release concerned.
(eXD No indemnification, hold harmless, or similar agreement or
conveyance shall be effective to transfer from the owner or opera-
tor of any vessel or facility or from any person who may be liable
for a release or threat of release under this section, to any other
person the liability imposed under this section. Nothing in this sub-
section shall bar any agreement to insure, hold harmless, or indem-
nify a party to such agreement for any liability under this section.
(2) Nothing in this title, including the provisions of paragraph (1)
of this subsection, shall bar a cause of action that an owner or op-
erator-or any other person subject to liability under this section, or
a guarantor, has or would have, by reason of subrogation or other-
wise against any person.
(Ml) NATURAL RESOURCES LIABILITY.In the case of an injury to,
destruction of, or loss of natural resources under subparagraph (C)
of subsection (a) liability shall be to the United States Government
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and to any State for natural resources within the State or belong-
ing to, managed by, controlled by, or appertaining to such State
and to any Indian tribe for natural resources belonging to, manager
by, controlled by, or appertaining to such tribe, or held in trust for
the benefit of such tribe, or belonging to a member of such tribe if
such resources are subject to a trust restriction on alienation: Pro-
vided, however, That no liability to the United States or State or
Indian tribe shall be imposed under subparagraph (C) of subsection
(a), where the party sought to be charged has demonstrated that
the damages to natural resources complained of were specifically
identified as an irreversible and irretrievable commitment of natu-
ral resources in an environmental impact statement, or other com-
parable environment analysis, and the decision to grant a permit
or license authorizes such commitment of natural resources, and
the facility or project was otherwise operating within the terms of
its permit or license, so long as, in the case of damages to an
Indian tribe occurring pursuant to a Federal permit or license, the
issuance of that permit or license was not inconsistent with the fi-
duciary duty of the United States with respect to such Indian tribe.
The President, or the authorized representative of any State, shall
act on behalf of the public as trustee of such natural resources to
recover for such damages. [Sums recovered shall be available for
use to restore, rehabilitate, or acquire the equivalent of such natu-
ral resources by the appropriate agencies of the Federal Govern-
ment or the State government, or the Indian tribe l but the meas-
ure of such damages shall not be limited by the sums which can be
used to restore or replace such resources. J Sums recovered by the
United States Government as trustee under this subsection shall be
retained by the trustee, without further appropriation, for use only
to restore, replace, or acquire the equivalent of such natural re-
sources. Sums recovered by a State as trustee under this subsection
shall be available for use only to restore, replace, or acquire the
equivalent of such natural resources by the State. The measure of
damages in any action under subparagraph (C) of subsection (a)
shall not be limited by the sums which can be used to restore or re-
place such resources. There shall be no double recovery under this
Act for natural resource damages, including the costs of damage as-
sessment or restoration, rehabilitation, or acquisition for the same
release and natural resource. There shall be no recovery under the
authority of subparagraph (C) of subsection (a) where such damages
and the release of a hazardous substance from which such damages
resulted have occurred wholly before the enactment of this Act.
(2) DESIGNATION OF FEDERAL AND STATE OFFICIALS.
(A) FEDERAL.The President shall designate in the National
Contingency Plan published under section 105 of this Act the
Federal officials who shall act on behalf of the public as trust-
ees for natural resources under this Act and section 311 of the
Federal Water Pollution Control Act. Such officials shall assess
damages for injury to, destruction of, or loss of natural re-
sources for purposes of this Act and such section 311 for those
resources under their trusteeship and may, upon request of and
' The phrase "or the Indian tribe" was inserted here by section 207(cXlXD) of Public Law 99-499.
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reimbursement from a State and at the Federal officials discre-
tion, assess damages for those natural resources under the
State's trusteeship.
(B) STATE.The Governor of each State shall designate State
officials who may act on behalf of the public as trustee for nat-
ural resources under this Act and section 311 of the Federal
Water Pollution Control Act and shall notify the President of
such designations. Such State officials shall assess damages to
natural resources for the purposes of this Act and such section
311 for those natural resources under their trusteeship.
(C) REBUTTABLE PRESUMPTION.Any determination or assess-
ment of damages to natural resources for the purposes of this
Act and section 311 of the Federal Water Pollution Control Act
made by a Federal or State trustee in accordance with the regu-
lations promulgated under section 301(c) of this Act shall have
the force and effect of a rebuttable presumption on behalf of the
trustee in any administrative or judicial proceeding under this
Act or section 311 of the Federal Water Pollution Control Act.
[(g) Each department, agency, or instrumentality of the execu-
tive, legislative, and judicial branches of the Federal Government
shall be subject to, and comply with, this Act in the same manner
and to the same extent, both procedurally and substantively, as
any nongovernmental entity, including liability under this sec-
tion.J (g) FEDERAL AGENCIES.For provisions relating to Federal
agencies, see section 120 of this Act.
(h) The owner or operator of a vessel shall be liable in accord-
ance with this section, under Maritime tort law, and as provided
under section 114 of this Act notwithstanding any provision of the
Act of March 3, 1851 (46 U.S.C. 183ff) or the absence of any physical
damage to the proprietary interest of the claimant.
(i) No person (including the United States or any State or Indian
tribe) may recover under the authority of this section for any re-
sponse costs or damages resulting from the application of a pesti-
cide product registered under the Federal Insecticide, Fungicide,
and Rodenticide Act. Nothing in this paragraph shall affect or
modify in any way the obligations or liability of any person under
any other provision of State or Federal law, including common law,
for damages, injury, or loss resulting from a release of any hazard-
ous substance or for removal or remedial action or the costs of re-
moval or remedial action of such hazardous substance.
(j) Recovery by any person (including the United States or any
State or Indian tribe) for response costs or damages resulting from
a federally permitted release shall be pursuant to existing law in
lieu of this section. Nothing in this paragraph shall affect or
modify in any way the obligations or liability of any person under
any other provision of State or Federal law, including common law,
for damages, injury, or loss resulting from a release of any hazard-
ous substance or for removal or remedial action or the costs of re-
moval or remedial action of such hazardous substance. In addition,
costs of response incurred by the Federal Government in connec-
tion with a discharge specified in section 101(10) (B) or (C) shall be
recoverable in an action brought under section 309(b) of the Clean
Water Act.
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(kXD The liability established by this section or any other law for
the owner or operator of a hazardous waste disposal facility which
has received a permit under subtitle C of the Solid Waste Disposal
Act, shall be transferred to and assumed by the Post-closure Liabil-
ity Fund established by section 232 of this Act when
(A) such facility and the owner and operator thereof has
complied with the requirements of subtitle C of the Solid
Waste Disposal Act and regulations issued thereunder, which
may affect the performance of such facility after closure; and
(B) such facility has been closed in accordance with such reg-
ulations and the conditions of such permit, and such facility
and the surrounding area have been monitored as required by
such regulations and permit conditions for a period not to
exceed five years after closure to demonstrate that there is no
substantial likelihood that any migration offsite or release
from confinement of any hazardous substance or other risk to
public health or welfare will occur.
(2) Such transfer of liability shall be effective ninety days after
the owner or operator of such facility notifies the Administrator of
the Environmental Protection Agency (and the State where it has
an authorized program under section 3006(b) of the Solid Waste
Disposal Act) that the conditions imposed by this subsection have
been satisfied. If within such ninety-day period the Administrator
of the Environmental Protection Agency or such State determines
that any such facility has not complied with all the conditions im-
posed by this subsection or that insufficient information has been
provided to demonstrate such compliance, the Administrator or
such State shall so notify the owner and operator of such facility
and the administrator of the Fund established by section 232 of
this Act, and the owner and operator of such facility shall continue
to be liable with respect to such facility under this section and
other law until such time as the Administrator and such State de-
termines that such facility has complied with all conditions im-
posed by this subsection. A determination by the Administrator or
such State that a facility has not complied with all conditions im-
posed by this subsection or that insufficient information has been
supplied to demonstrate compliance, shall be a final administrative
action for purposes of judicial review. A request for additional in-
formation shall state in specific terms the data required.
(3) In addition to the assumption of liability of owners and opera-
tors under paragraph (1) of this subsection, the Post-closure Liabil-
ity Fund established by section 232 of this Act may be used to pay
costs of monitoring and care and maintenance of a site incurred by
other persons after the period of monitoring required by regula-
tions under subtitle C of the Solid Waste Disposal Act for hazard-
ous waste disposal facilities meeting the conditions of paragraph (1)
of this subsection.
(4XA) Not later than one year after the date of enactment of this
Act, the Secretary of the Treasury shall conduct a study and shall
submit a report thereon to the Congress on the feasibility of estab-
lishing or qualifying an optional system of private insurance for
ppstclosure financial responsibility for hazardous waste disposal fa-
cilities to which this subsection applies. Such study shall include a
specification of adequate and realistic minimum standards to
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assure that any such privately placed insurance will carry out the
purposes of this subsection in a reliable, enforceable, and practical
manner. Such a study shall include an examination of the public
and private incentives, programs, and actions necessary to make
privately placed insurance a practical and effective option to the
financing system for the Post-closure Liability Fund provided in
title II of this Act.
(B) Not later than eighteen months after the date of enactment
of this Act and after a public hearing, the President shall by rule
determine whether or not it is feasible to establish or qualify an
optional system of private insurance for postclosure financial
responsibility for hazardous waste disposal facilities to which this
subsection applies. If the President determines the establishment
or qualification of such a system would be infeasible, he shall
promptly publish an explanation of the reasons for such a determi-
nation. If the President determines the establishment or qualifica-
tion of such a system would be feasible, he shall promptly publish
notice of such determination. Not later than six months after an
affirmative determination under the preceding sentence and after
a public hearing, the President shall by rule promulgate adequate
and realistic minimum standards which must be met by any such
privately placed insurance, taking into account the purposes of this
Act and this subsection. Such rules shall also specify reasonably ex-
peditious procedures by which privately placed insurance plans can
qualify as meeting such minimum standards.
(C) In the event any privately placed insurance plan qualifies
under subparagraph (B), any person enrolled in, and complying
with the terms of, such plan shall be excluded from the provisions
of paragraphs (1), (2), and (3) of this subsection and exempt from
the requirements to pay any tax or fee to the Post-closure Liability
Fund under title II of this Act.
(D) The President may issue such rules and take such other ac-
tions as are necessary to effectuate the purposes of this paragraph.
(5) SUSPENSION OF LIABILITY TRANSFER.Notwithstanding para-
graphs (1), (2), (3), and (4) of this subsection and subsection (j) of sec-
tion 111 of this Act, no liability shall be transferred to or assumed
by the Post-Closure Liability Trust Fund established by section 232
of this Act prior to completion of the study required under para-
graph (6) of this subsection, transmission of a report of such study
to both Houses of Congress, and authorization of such a transfer or
assumption by Act of Congress following receipt of such study and
report.
(6) STUDY OF OPTIONS FOR POST-CLOSURE PROGRAM.
(A) STUDY.The Comptroller General shall conduct a study
of options for a program for the management of the liabilities
associated with hazardous waste treatment, storage, and dispos-
al sites after their closure which complements the policies set
forth in the Hazardous and Solid Waste Amendments of 1984
and assures the protection of human health and the environ-
ment.
(B) PROGRAM ELEMENTS.The program referred to in sub-
paragraph (A} shall be designed to assure each of the following:
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(i) Incentives are created and maintained for the safe
management and disposal of hazardous wastes so as to
assure protection of human health and the environment.
(ii) Members of the public will have reasonable confi-
dence that hazardous wastes will be managed and disposed
of safely and that resources will be available to address
any problems that may arise and to cover costs of long-term
monitoring, care, and maintenance of such sites.
(Hi) Persons who are or seek to become owners and opera-
tors of hazardous waste disposal facilities will be able to
manage their potential future liabilities and to attract the
investment capital necessary to build, operate, and close
such facilities in a manner which assures protection of
human health and the environment.
(C) ASSESSMENTS.The study under this paragraph shall in-
clude assessments of treatment, storage, and disposal facilities
which have been or are likely to be issued a permit under sec-
tion 3005 of the Solid Waste Disposal Act and the likelihood of
future insolvency on the part of owners and operators of suck
facilities. Separate assessments shall be made for different
classes of facilities and for different classes of land disposal fa-
cilities and shall include but not be limited to
(i) the current and future financial capabilities of facility
owners and operators;
(ii) the current and future costs associated with facilities,
including the costs of routine monitoring and maintenance,
compliance monitoring, corrective action, natural resource
damages, and liability for damages to third parties; and
(Hi) the availability of mechanisms by which owners and
operators of such facilities can assure that current and
future costs, including post-closure costs, will be financed.
(D) PROCEDURES.In carrying out the responsibilities of this
paragraph, the Comptroller General shall consult with the Ad-
ministrator, the Secretary of Commerce, the Secretary of the
Treasury, and the heads of other appropriate Federal agencies.
(E) CONSIDERATION OF OPTIONS.In conducting the study
under this paragraph, the Comptroller General shall consider
various mechanisms and combinations of mechanisms to com-
plement the policies set forth in the Hazardous and Solid Waste
Amendments of 1984 to serve the purposes set forth in subpara-
graph (B) and to assure that the current and future costs associ-
ated with hazardous waste facilities, including post-closure
costs, will be adequately financed and, to the greatest extent
possible, borne by the owners and operators of such facilities.
Mechanisms to be considered include, but are not limited to
(i) revisions to closure, post-closure, and financial respon-
sibility requirements under subtitles C and I of the Solid
Waste Disposal Act;
(ii) voluntary risk pooling by owners and operators;
(Hi) legislation to require risk pooling by owners and op-
erators;
(iv) modification of the Post-Closure Liability Trust Fund
previously established by section 232 of this Act, and the
conditions for transfer of liability under this subsection, in-
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45
eluding limiting the transfer of some or all liability under
this subsection only in the case of insolvency of owners and
operators;
(v) private insurance;
(vi) insurance provided by the Federal Government;
(vii) coinsurance, reinsurance, or pooled-risk insurance,
whether provided by the private sector or provided or assist-
ed by the Federal Government; and
(viii) creation of a new program to be administered by a
new or existing Federal agency or by a federally chartered
corporation.
(F) RECOMMENDATIONS.The Comptroller General shall con-
sider options for funding any program under this section and
shall, to the extent necessary, make recommendations to the ap-
propriate committees of Congress for additional authority to im-
plement such program.
(1) FEDERAL LIEN.
(1) IN GENERAL.All costs and damages for which a person is
liable to the United States under subsection (a) of this section
(other than the owner or operator of a vessel under paragraph
(1) of subsection (a)) shall constitute a lien in favor of'the
United States upon all real property and rights to such property
which
(A) belong to such person; and
(B) are subject to or affected by a removal or remedial
action.
(2) DURATION.The lien imposed by this subsection shall
arise at the later of the following:
(A) The time costs are first incurred by the United States
with respect to a response action under this Act.
(B) The time that the person referred to in paragraph (1)
is provided (by certified or registered mail) written notice of
potential liability.
Such lien shall continue until the liability for the costs (or a
judgment against the person arising out of such liability) is sat-
isfied or becomes unenforceable through operation of the statute
of limitations provided in section 113.
(3) NOTICE AND VALIDITY.The lien imposed by this subsec-
tion shall be subject to the rights of any purchaser, holder of a
security interest, or judgment lien creditor whose interest is per-
fected under applicable State law before notice of the lien has
been filed in the appropriate office within the State (or county
or other governmental subdivision), as designated by State law,
in which the real property subject to the lien is located. Any
such purchaser, holder of a security interest, or judgment lien
creditor shall be afforded the same protections against the lien
imposed by this subsection as are afforded under State law
against a judgment lien which arises out of an unsecured obli-
gation and which arises as of the time of the filing of the notice
of the lien imposed by this subsection. If the State has not by
law designated one office for the receipt of such notices of liens,
the notice shall be filed in the office of the clerk of the United
States district court for the district in which the real property is
located. For purposes of this subsection, the terms "purchaser"
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and "security interest" shall have the definitions provided
under section 6323(h) of the Internal Revenue Code of 1954.
(4) ACTION IN REM.The costs constituting the lien may be re-
covered in an action in rem in the United States district court
for the district in which the removal or remedial action is oc-
curring or has occurred. Nothing in this subsection shall affect
the right of the United States to bring an action against any
person to recover all costs and damages for which such person
is liable under subsection (a) of this section.
(m) MARITIME LIEN.All costs and damages for which the owner
or operator of a vessel is liable under subsection (aXD with respect
to a release or threatened release from such vessel shall constitute a
maritime lien in favor of the United States' on such vessel. Such
costs may be recovered in an action in rem in the district court of
the United States for the district in which the vessel may be found.
Nothing in this subsection shall affect the right of the United
States to bring an action against the owner or operator of such
vessel in any court of competent jurisdiction to recover such costs.
FINANCIAL RESPONSIBILITY
SEC. 108. (aXD The owner or operator of each vessel (except a
non-self-propelled barge that does not carry hazardous substances
as cargo) over three hundred gross tons that uses any port or place
in the United States or the navigable waters or any offshore facili-
ty, shall establish and maintain, in accordance with regulations
promulgated by the President, evidence of financial responsibility
of $300 per gross ton (or for a vessel carrying hazardous substances
as cargo, or $5,000,000, whichever is greater to cover the liability
prescribed under paragraph (1) of section 107(a) of this Act). Finan-
cial responsibility may be established by any one, or any combina-
tion, of the following: insurance, guarantee, surety bond, or qualifi-
cation as a self-insurer. Any bond filed shall be issued by a bonding
company authorized to do business in the United States. In cases
where an owner or operator owns, operates, or charters more than
one vessel subject to this subsection, evidence of financial responsi-
bility need be established only to meet the maximum liability ap-
plicable to the largest of such vessels.
(2) The Secretary of the Treasury shall withhold or revoke the
clearance required by section 4197 of the Revised Statutes of the
United States of any vessel subject to this subsection that does not
have certification furnished by the President that the financial re-
sponsibility provisions of paragraph (1) of this subsection have been
complied with.
(3) The Secretary of Transportation, in accordance with regula-
tions issued by him, shall (A) deny entry to any port or place in the
United States or navigable waters to, and (B) detain at the port or
place in the United States from which it is about to depart for any
other port or place in the United States, any vessel subject to this
subsection that, upon request, does not produce certification fur-
nished by the President that the financial responsibility provisions
of paragraph (1) of this subsection have been complied with.
(4) In addition to the financial responsibility provisions of para-
graph (1) of this subsection, the President shall require additional
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evidence of financial responsibility for incineration vessels in such
amounts, and to cover such liabilities recognized by law, as the
President deems appropriate, taking into account the potential risks
posed by incineration and transport for incineration, and any other
factors deemed relevant.
(bXD Beginning not earlier than five years after the date of en-
actment of this Act, the President shall promulgate requirements
(for facilities in addition to those under subtitle C of the Solid
Waste Disposal Act and other Federal law) that classes of facilities
establish and maintain evidence of financial responsibility consist-
ent with the degree and duration of risk associated with the pro-
duction, transportation, treatment, storage, or disposal of hazard-
ous substances. Not later than three years after the date of enact-
ment of the Act, the President shall identify those classes for
which requirements will be first developed and publish notice of
such identification in the Federal Register. Priority in the develop-
ment of such requirements shall be accorded to those classes of fa-
cilities, owners, and operators which the President determines
present the highest level of risk of injury.
(2) The level of financial responsibility shall be initially estab-
lished, and, when necessary, adjusted to protect against the level of
risk which the President in his discretion believes is appropriate
based on the payment experience of the Fund, commercial insur-
ers, courts settlements and judgments, and voluntary claims satis-
faction. To the maximum extent practicable, the President shall co-
operate with and seek the advice of the commercial insurance in-
dustry in developing financial responsibility requirements. Finan-
cial responsibility may be established by any one, or any combina-
tion, of the following: insurance, guarantee, surety bond, letter of
credit, or qualification as a self-insurer. In promulgating require-
ments under this section, the President is authorized to specify
policy or other contractual terms, conditions, or defenses which are
necessary, or which are unacceptable, in establishing such evidence
of financial responsibility in order to effectuate the purposes of this
Act.
(3) Regulations promulgated under this subsection shall
incrementally impose financial responsibility requirements [over a
period of not less than three and no more than six years] as quick-
ly as can reasonably be achieved but in no event more than 4 years
after the date of promulgation. Where possible, the level of finan-
cial responsibility which the President believes appropriate as a
final requirement shall be achieved through incremental, annual
increases in the requirements.
(4) Where a facility is owned or operated by more than one
person, evidence of financial responsibility covering the facility
may be established and maintained by one of the owners or opera-
tors, or, in consolidated form, by or on behalf of two or more
owners or operators. When evidence of financial responsibility is
established in a consolidated form, the proportional share of each
participant shall be shown. The evidence shall be accompanied by a
statement authorizing the applicant to act for and in behalf of each
participant in submitting and maintaining the evidence of financial
responsibility.
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(5) The requirements for evidence of financial responsibility for
motor carriers covered by this Act shall be determined under sec-
tion 30 of the Motor Carrier Act of 1980, Public Law 96-296.
[(c) Any claim authorized by section 107 or 111 may be asserted
directly against any guarantor providing evidence of financial
responsibility as required under this section. In defending such a
claim, the guarantor may invoke all rights and defenses which
would be available to the owner or operator under this title. The
guarantor may also invoke the defense that the incident was
caused by the willful misconduct of the owner or operator, but such
guarantor may not invoke any other defense that such guarantor
might have been entitled to invoke in a proceeding brought by the
owner or operator against him.
S(d) Any guarantor acting in good faith against which claims
er this Act are asserted as a guarantor shall be liable under
section 107 or section 112(c) of this title only up to the monetary
limits of the policy of insurance or indemnity contract such guar-
antor has undertaken or of the guaranty of other evidence of finan-
cial responsibility furnished under section 108 of this Act, and only
to the extent that liability is not excluded by restrictive endorse-
ment: Provided, That this subsection shall not alter the liability of
any person under section 107 of this Act.]
(c) DIRECT ACTION.
(1) RELEASES FROM VESSELS.In the case of a release or
threatened release from a vessel, any claim authorized by sec-
tion 107 or 111 may be asserted directly against any guarantor
providing evidence of financial responsibility for such vessel
under subsection (a). In defending such a claim, the guarantor
may invoke all rights and defenses which would be available to
the owner or operator under this title. The guarantor may also
invoke the defense that the incident was caused by the willful
misconduct of the owner or operator, but the guarantor may not
invoke any other defense that the guarantor might have been
entitled to invoke in a proceeding brought by the owner or oper-
ator against him.
(2) RELEASES FROM FACILITIES.In the case of a release or
threatened release from a facility, any claim authorized by sec-
tion 107 or 111 may be asserted directly against any guarantor
providing evidence of financial responsibility for such facility
under subsection (b), if the person liable under section 107 is in
bankruptcy, reorganization, or arrangement pursuant to the
Federal Bankruptcy Code, or if, with reasonable diligence, juris-
diction in the Federal courts cannot be obtained over a person
liable under section 107 who is likely to be solvent at the time
of judgment. In the case of any action pursuant to this para-
graph, the guarantor shall be entitled to invoke all rights and
defenses which would have been available to the person liable
under section 107 if any action had been brought against such
person by the claimant and all rights and defenses which
would have been available to the guarantor if an action had
been brought against the guarantor by such person.
(d) LIMITATION OF GUARANTOR LIABILITY.
(1) TOTAL LIABILITY.The total liability of any guarantor in
a direct action suit brought under this section shall be limited
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to the aggregate amount of the monetary limits of the policy of
insurance, guarantee, surety bond, letter of credit, or similar in-
strument obtained from the guarantor by the person subject to
liability under section 107 for the purpose of satisfying the re-
quirement for evidence of financial responsibility.
(2) OTHER LIABILITY.Nothing in this subsection shall be
construed to limit any other State or Federal statutory, contrac-
tual, or common law liability of a guarantor, including, but not
limited to, the liability of such guarantor for bad faith either
in negotiating or in failing to negotiate the settlement of any
claim. Nothing in this subsection shall be construed, interpret-
ed, or applied to diminish the liability of any person under sec-
tion 107 of this Act or other applicable law.
[PENALTY
[SEC. 109. Any person who, after notice and an opportunity for a
hearing, is found to have failed to comply with the requirements of
section 108, the regulations issued thereunder, or with any denial
or detention order shall be liable to the United States for a civil
penalty, not to exceed $10,000 for each day of violation.]
CIVIL PENALTIES AND AWARDS
SEC. 109. (a) CLASS I ADMINISTRATIVE PENALTY.
(1) VIOLATIONS.A civil penalty of not more than $25,000 per
violation may be assessed by the President in the case of any of
the following
(A} A violation of the requirements of section 103 (a) or
(b) (relating to notice).
(B) A violation of the requirements of section 103(dX2) (re-
lating to destruction of records, etc.).
(C) A violation of the requirements of section 108 (relat-
ing to financial responsibility, etc.), the regulations issued
under section 108, or with any denial or detention order
under section 108.
(D) A violation of an order under section 122(dX3) (relat-
ing to settlement agreements for action under section
104(b)).
(E) Any failure or refusal referred to in section 122(1) (re-
lating to violations of administrative orders, consent de-
crees, or agreements under section 120).
(2) NOTICE AND HEARINGS.No civil penalty may be assessed
under this subsection unless the person accused of the violation
is given notice and opportunity for a hearing with respect to the
violation.
(3) DETERMINING AMOUNT.In determining the amount of
any penalty assessed pursuant to this subsection, the President
shall take into account the nature, circumstances, extent and
gravity of the violation or violations and, with respect to the vi-
olator, ability to pay, any prior history of such violations, the
degree of culpability, economic benefit or savings (if any) result-
ing from the violation, and such other matters as justice may
require.
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50
(4) REVIEW.Any person against whom a civil penalty is as-
sessed under this subsection may obtain review thereof in the
appropriate district court of the United States by filing a notice
of appeal in such court within 30 days from the date of such
order and by simultaneously sending a copy of such notice by
certified mail to the President, The President shall promptly
file in such court a certified copy of the record upon which such
violation was found or such penalty imposed. If any person
fails to pay an assessment of a civil penalty after it has become
a final and unappealable order or after the appropriate court
has entered final judgment in favor of the United States, the
President may request the Attorney General of the United
States to institute a civil action in an appropriate district court
of the United States to collect the penalty, and such court shall
have jurisdiction to hear and decide any such action. In hear-
ing such action, the court shall have authority to review the
violation and the assessment of the civil penalty on the record.
(5) SUBPOENAS.The President may issue subpoenas for the
attendance and testimony of witnesses and the production of
relevant papers, books, or documents in connection with hear-
ings under this subsection. In case of contumacy or refusal to
obey a subpoena issued pursuant to this paragraph and served
upon any person, the district court of the United States for any
district in which such person is found, resides, or transacts
business, upon application by the united States and after notice
to such person, shall have jurisdiction to issue an order requir-
ing such person to appear and give testimony before the admin-
istrative law judge or to appear and produce documents before
the administrative law judge, or both, and any failure to obey
such order of the court may be punished by such court as a con-
tempt thereof.
(b) CLASS II ADMINISTRATIVE PENALTY.A civil penalty of not
more than $25,000 per day for each day during which, the violation
continues may be assessed by the President in the case of any of the
following
(1) A violation of the notice requirements of section 103 (a) or
(b).
(2) A violation of section 103(dX2) (relating to destruction of
records, etc.).
(3) A violation of the requirements of section 108 (relating to
financial responsibility, etc.), the regulations issued under sec-
tion 108, or with any denial or detention order under section
108.
(4) A violation of an order under section 122(d)(3) (relating to
settlement agreements for action under section 104(b)).
(5) Any failure or refusal referred to in section 122(1) (relating
to violations of administrative orders, consent decrees, or agree-
ments under section 120).
In the case of a second or subsequent violation the amount of such
penalty may be not more than $75,000 for each day during which
the violation continues. Any civil penalty under this subsection
shall be assessed and collected in the same manner, and subject to
the same provisions, as in the case of civil penalties assessed and
collected after notice and opportunity for hearing on the record in
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51
accordance with section 554 of title 5 of the United States Code. In
any proceeding for the assessment of a civil penalty under this sub-
section the President may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers, books,
and documents and may promulgate rules for discovery procedures.
Any person who requested a hearing with respect to a civil penalty
under this subsection and who is aggrieved by an order assessing
the civil penalty may file a petition for judicial review of such order
with the United States Court of Appeals for the District of Colum-
bia Circuit or for any other circuit in which such person resides or
transacts business. Such a petition may only be filed within the 30-
day period beginning on the date the order making such assessment
was issued.
(c) JUDICIAL ASSESSMENT.The President may bring an action in
the United States district court for the appropriate district to assess
and collect a penalty of not more than $25,000 per day for each day
during which the violation (or failure or refusal) continues in the
case of any of the following
(1) A violation of the notice requirements of section 103 (a) or
(b).
(2) A violation of section lQ3(dX2) (relating to destruction of
records, etc.).
(3) A violation of the requirements of section 108 (relating to
financial responsibility, etc.), the regulations issued under sec-
tion 108, or with any denial or detention order under section
108.
(4) A violation of an order under section 122(d)(3) (relating to
settlement agreements for action under section 104(b)).
(5) Any failure or refusal referred to in section 122(1) (relating
to violations of administrative orders, consent decrees, or agree-
ments under section 120).
In the case of a second or subsequent violation (or failure or refus-
al), the amount of such penalty may be not more than $75,000 for
each day during which the violation (or failure or refusal) contin-
ues. For additional provisions providing for judicial assessment of
civil penalties for failure to comply with a request or order under
section 104(e) (relating to information gathering and access authori-
ties), see section 104(e).
(d) AWARDS.The President may pay an award of up to $10,000
to any individual who provides information leading to the arrest
and conviction of any person for a violation subject to a criminal
penalty under this Act, including any violation of section 103 and
any other violation referred to in this section. The President shall,
by regulation, prescribe criteria for such an award and may pay any
award under this subsection from the Fund, as provided in section
111.
(e) PROCUREMENT PROCEDURES.Notwithstanding any other pro-
vision of law, any executive agency may use competitive procedures
or procedures other than competitive procedures to procure the serv-
ices of experts for use in preparing or prosecuting a civil or criminal
action under this Act, whether or not the expert is expected to testify
at trial. The executive agency need not provide any written justifica-
tion for the use of procedures other than competitive procedures
when procuring such expert services under this Act and need not
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52
furnish for publication in the Commerce Business Daily or other-
wise any notice of solicitation or synopsis with respect to such pro-
curement.
(f) SAVINGS CLAUSE.Action taken by the President pursuant to
this section shall not affect or limit the President's authority to en-
force any provisions of this Act.
EMPLOYEE PROTECTION
SEC. 110. (a) No person shall fire or in any other way discrimi-
nate against, or cause to be fired or discriminated against, any em-
ployee or any authorized representative of employees by reason of
the fact that such employee or representative has provided infor-
mation to a State or to the Federal Government, filed, instituted,
or caused to be filed or instituted any proceeding under this Act, or
has testified or is about to testify in any proceeding resulting from
the administration or enforcement of the provisions of this Act.
(b) Any employee or a representative of employees who believes
that he has been fired or otherwise discriminated against by any
person in violation of subsection (a) of this section may, within
thirty days after such alleged violation occurs, apply to the Secre-
tary of Labor for a review of such firing or alleged discrimination.
A copy of the application shall be sent to such person, who shall be
the respondent. Upon receipt of such application, the Secretary of
Labor shall cause such investigation to be made as he deems appro-
priate. Such investigation shall provide an opportunity for a public
hearing at the request of any party to such review to enable the
parties to present information relating to such alleged violation.
The parties shall be given written notice of the time and place of
the hearing at least five days prior to the hearing. Any such hear-
ing shall be of record and shall be subject to section 554 of title 5,
United States Code. Upon receiving the report of such investiga-
tion, the Secretary of Labor shall make findings of fact. If he finds
that such violation did occur, he shall issue a decision, incorporat-
ing an order therein and his findings, requiring the party commit-
ting such violation to take such affirmative action to abate the vio-
lation as the Secretary of Labor deems appropriate, including, but
not limited to, the rehiring or reinstatement of the employee or
representative of employees to his former position with compensa-
tion. If he finds that there was no such violation, he shall issue an
order denying the application. Such order issued by the Secretary
of Labor under this subparagraph shall be subject to judicial
review in the same manner as orders and decisions are subject to
judicial review under this Act.
(c) Whenever an order is issued under this section to abate such
violation, at the request of the applicant a sum equal to the aggre-
gate amount of all costs and expenses (including the attorney's
fees) determined by the Secretary of Labor to have been reasonably
incurred by the applicant for, or in connection with,, the institution
and prosecution of such proceedings, shall be assessed against the
person committing such violation.
(d) This section shall have no application to any employee who
acting without discretion from his employer (or his agent) deliber-
ately violates any requirement of this Act.
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(e) The President shall conduct continuing evaluations of poten-
tial loss of shifts of employment which may result from the admin-
istration or enforcement of the provisions of this Act, including,
where appropriate, investigating threatened plant closures or re-
ductions in employment allegedly resulting from such administra-
tion or enforcement. Any employee who is discharged, or laid off,
threatened with discharge or layoff, or otherwise discriminated
against by any person because of the alleged results of such admin-
istration or enforcement, or any representative of such employee,
may request the President to conduct a full investigation of the
matter and, at the request of any party, shall hold public hearings,
require the parties, including the employer involved, to present in-
formation relating to the actual or potential effect of such adminis-
tration or enforcement on employment and any alleged discharge,
layoff, or other discrimination, and the detailed reasons or justifica-
tion therefore. Any such hearing shall be of record and shall be
subject to section 554 of title 5, United States Code. Upon receiving
the report of such investigation, the President shall make findings
of fact as to the effect of such administration or enforcement on
employment and on the alleged discharge, layoff, or discrimination
and shall make such recommendations as he deems appropriate.
Such report, findings, and recommendations shall be available to
the public. Nothing in this subsection shall be construed to require
or authorize the President or any State to modify or withdraw any
action, standard, limitation, or any other requirement of this Act.
USES OF FUND
SEC. 111. (a) IN GENERAL.For the purposes specified in this sec-
tion there is authorized to be appropriated from the Hazardous Sub-
stance Superfund established under subchapter A of chapter 98 of
the Internal Revenue Code of 1954 not more than $8,500,000,000 for
the 5-year period beginning on the date of enactment of the Super-
fund Amendments and Reauthorizatipn Act of 1986. The preceding
sentence constitutes a specific authorization for the funds appropri-
ated under title II of Public Law 99-160 (relating to payment to the
Hazardous Substances Trust Fund). The President shall use the
money in the Fund for the following purposes:
(1) [payment] Payment of governmental response costs in-
curred pursuant to section 104 of this title, including costs in-
curred pursuant to the Intervention on the High Seas Act[;].
(2) [payment] Payment of any claim for necessary response
costs incurred by any other person as a result of carrying out
the national contingency plan established under section 311(c)
of the Clean Water Act and amended by section 105 of this
title: Provided, however, That such costs must be approved
under said plan and certified by the responsible Federal offi-
cial [;].
(3) [payment] Payment of any claim authorized by subsec-
tion (b) of this section and finally decided pursuant to section
112 of this title, including those costs set out in subsection
112(cX3) of this title[;]. [and]
(4) [payment] Payment of costs specified under subsection
(c) of this section.
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54
(5) GRANTS FOR TECHNICAL ASSISTANCE.The cost of grants
under section 117(e) (relating to public participation grants for
technical assistance).
(6) LEAD CONTAMINATED SOIL.Payment of not to exceed
$15,000,000 for the costs of a pilot program for removal, decon-
tamination, or other action with respect to lead-contaminated
soil in one to three different metropolitan areas.
The President shall not pay for any administrative costs or ex-
penses out of the Fund unless such costs and expenses are reason-
ably necessary for and incidental to the implementation of this
title.
(bYV IN GENERAL.Claims asserted and compensable but unsa-
tisfied under provisions of section 311 of the Clean Water Act,
which are modified by section 304 of this Act may be asserted
against the Fund under this title; and other claims resulting from
a release or threat of release of a hazardous substance from a
vessel or a facility may be asserted against the Fund under this
title for injury to, or destruction or loss of, natural resources, in-
cluding cost for damage assessment: Provided, however, That any
such claim may be asserted only by the President, as trustee, for
natural resources over which the United States has sovereign
rights, or natural resources within the territory or the fishery con-
servation zone of the United States to the extent they are managed
or protected by the United States, or by any State for natural re-
sources within the boundary of that State belonging to, managed
by, controlled by, or appertaining to the State, or by any Indian
tribe or by the United States acting on behalf of any Indian tribe
for natural resources belonging to, managed by, controlled by, or ap-
pertaining to such tribe, or held in trust for the benefit of such
tribe, or belonging to a member of such tribe if such resources are
subject to a trust restriction on alienation.
(2) LIMITATION ON PAYMENT OF NATURAL RESOURCE CLAIMS.
(A) GENERAL REQUIREMENTS.No natural resource claim may
be paid from the Fund unless the President determines that the
claimant has exhausted all administrative and judicial reme-
dies to recover the amount of such claim from persons who may
be liable under section 107.
(B) DEFINITION.As used in this paragraph, the term "natu-
ral resource claim" means any claim for injury to, or destruc-
tion or loss of, natural resources. The term does not include any
claim for the cost of natural resource damage assessment.
(c) Uses of the Fund under subsection (a) of this section include
(1) [the] The costs of assessing both short-term and long-
term injury to, destruction of, or loss of any natural resources
resulting from a release of a hazardous substance [;].
(2) [the} The costs of Federal or State or Indian tribe efforts
in the restoration, rehabilitation, or replacement or acquiring
the equivalent of any natural resources injured, destroyed, or
lost as a result of a release of a hazardous substance [;].
(3) [subject] Subject to such amounts as are provided in ap-
propriation Acts, the costs of a program to identify, investi-
gate, and take enforcement and abatement action against re-
leases of hazardous substances[;].
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55
(4) [the costs of epidemiologic studies,] Any costs incurred
in accordance with subsection (m) of this section (relating to
ATSDR) and section 104(i) including the costs of epidemiologic
and laboratory studies, health assessments, preparation of toxi-
cologic profiles development and maintenance of a registry of
persons exposed to hazardous substances to allow long-term
health effect studies, and diagnostic services not otherwise
available to determine whether persons in populations exposed
to hazardous substances in connection with a release or a sus-
pected release are suffering from long-latency diseases [;].
(5) [subject] Subject to such amounts as are provided in ap-
propriation Acts, the costs of providing equipment and similar
overhead, related to the purposes of this Act and section 311 of
the Clean Water Act, and needed to supplement equipment
and services available through contractors or other non-Feder-
al entities, and of establishing and maintaining damage assess-
ment capability, for any Federal agency involved in strike
forces, emergency task forces, or other response teams under
the national contingency plan[; and].
(6) [subject] Subject to such amounts as are provided in ap-
propriation Acts, the costs of a program to protect the health
and safety of employees involved in response to hazardous sub-
stance releases. Such program shall be developed jointly by the
Environmental Protection Agency, the Occupational Safety
and Health Administration, and the National Institute for Oc-
cupational Safety and Health and shall include, but not be lim-
ited to, measures for identifying and assessing hazards to
which persons engaged in removal, remedy, or other response
to hazardous substances may be exposed, methods to protect
workers from such hazards, and necessary regulatory and en-
forcement measures to assure adequate protection of such em-
ployees.
(7) EVALUATION COSTS UNDER PETITION PROVISIONS OF SEC-
TION ios(d).Costs incurred by the President in evaluating fa-
cilities pursuant to petitions under section 105(d) (relating to pe-
titions for assessment of release).
(8) CONTRACT COSTS UNDER SECTION ioj>(a)(i).The costs of
contracts or arrangements entered into under section IQMaXD to
oversee and review the conduct of remedial investigations and
feasibility studies undertaken by persons other than the Presi-
dent and the costs of appropriate Federal and State oversight of
remedial activities at National Priorities List sites resulting
from consent orders or settlement agreements,
(9) ACQUISITION COSTS UNDER SECTION ioi>(j).The costs in-
curred by the President in acquiring real estate or interests in
real estate under section 104(j) (relating to acquisition of proper-
ty).
(10) RESEARCH, DEVELOPMENT, AND DEMONSTRATION COSTS
UNDER SECTION 311.The cost of carrying out section 311 (relat-
ing to research, development, and demonstration), except that
the amounts available for such purposes shall not exceed the
amounts specified in subsection (n) of this section.
(11) LOCAL GOVERNMENT REIMBURSEMENT.Reimbursements
to local governments under section 123, except that during the
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56
5-fiscal-year period beginning October 1, 1986, not more than 0.1
percent of the total amount appropriated from the Fund may be
used for such reimbursements.
(12) WORKER TRAINING AND EDUCATION GRANTS.The costs of
grants under section 126(g) of the Superfund Amendments and
tteauthorization Act of 1986 for training and education of
workers to the extent that such costs do not exceed $10,000,000
for each of the fiscal years 1987, 1988, 1989, 1990, and 1991.
(13) AWARDS UNDER SECTION 109.The costs of any awards
granted under section 109(d).
(W LEAD POISONING STUDY.The cost of carrying out the
study under subsection (f) of section 118 of the Superfund
Amendments and Reauthorization Act of 1986 (relating to lead
poisoning in children).
(dXD No money in the Fund may be used under subsection (c) (1)
and (2) of this section, nor for the payment of any claim under sub-
section (b) of this section, where the injury, destruction, or loss of
natural resources and the release of a hazardous substance from
which such damages resulted have occurred wholly before the en-
actment of this Act.
(2) No money in the Fund may be used for the payment of any
claim under subsection (b) of this section where such expenses are
associated with injury or loss resulting from long-term exposure to
ambient concentrations of air pollutants from multiple or diffuse
sources.
(eXl) Claims against or presented to the Fund shall not be valid
or paid in excess of the total money in the Fund at any one time.
Such claims become valid only when additional money is collected,
appropriated, or otherwise added to the Fund. Should the total
claims outstanding at any time exceed the current balance of the
Fund, the President shall pay such claims, to the extent authorized
under this section, in full in the order in which they were finally
determined.
(2) In any fiscal year, 85 percent of the money credited to the
Fund under title II of this Act shall be available only for the pur-
poses specified in paragraphs (1), (2), and (4) of subsection (a) of this
section. No money in the Fund may be used for the payment of any
claim under subsection (aX3) or subsection (b) of this section in any
fiscal year for which the President determines that all of the Fund
is needed ro response to threats to public health from releases or
threatened releases of hazardous substances.
(3) No money in the Fund shall be available for remedial action,
other than actions specified in subsection (c) of this section, with
respect to federally owned facilities; except that money in the Fund
shall be available for the provision of alternative water supplies (in-
cluding the reimbursement of costs incurred by a municipality) in
any case involving groundwater contamination outside the bound-
aries of a federally owned facility in which the federally owned fa-
cility is not the only potentially responsible party.
(4) Paragraphs (1) and (4) of subsection (a) of this section shall in
the aggregate be subject to such amounts as are provided in appro-
priation Acts.
(f) The President is authorized to promulgate regulations desig-
nating one or more Federal officials who may obligate money in
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57
the Fund in accordance with this section or portions thereof. The
President is also authorized to delegate authority to obligate money
in the Fund or to settle claims to officials of a State or Indian tribe
operating under a contract or cooperative agreement with the Fed-
eral Government pursuant to section 104(d) of this title.
(g) The President shall provide for the promulgation of rules and
regulations with respect to the notice to be provided to potential
injured parties by an owner and operator of any vessel, or facility
from which a hazardous substance has been released. Such rules
and regulations shall consider the scope and form of the notice
which would be appropriate to carry out the purposes of this title.
Upon promulgation of such rules and regulations, the owner and
operator of any vessel or facility from which a hazardous substance
has been released shall provide notice in accordance with such
rules and regulations. With respect to releases from public vessels,
the President shall provide such notification as is appropriate to
potential injured parties. Until the promulgation of such rules and
regulations, the owner and operator of any vessel or facility from
which a hazardous substance has been released shall provide rea-
sonable notice to potential injured parties by publication in local
newspapers serving the affected area.
[(hXl) In accordance with regulations promulgated under section
301(c) of this Act, damages for injury to, destruction of, or loss of
natural resources resulting from a release of a hazardous sub-
stance, for the purposes of this Act and section 311(f) (4) and (5) of
the Federal Water Pollution Control Act, shall be assessed by Fed-
eral officials designated by the President under the national con-
tingency plan published under section 105 of the Act, and such offi-
cials shall act for the President as trustee under this section and
section 311(fX5) of the Federal Water Pollution Control Act.
[(2) Any determination or assessment of damages for injury to, de-
struction of, or loss of natural resources for the purposes of this
Act and section 311(f) (4) and (5) of the Federal Water Pollution
Control Act shall have the force and effect of a rebuttable pre-
sumption on behalf of any claimant (including a trustee under sec-
tion 107 of this Act or a Federal agency) in any judicial or adjudica-
tory administrative proceeding under this Act or section 311 of the
Federal Water Pollution Control Act.J
(h) Reserved.
(i) Except in a situation requiring action to avoid an irreversible
loss of natural resources or to prevent or reduce any continuing
danger to natural resources or similar need for emergency action,
funds may not be used under this Act for the restoration, rehabili-
tation, or replacement or acquisition of the equivalent of any natu-
ral resources until a plan for the use of such funds for such pur-
poses has been developed and adopted by affected Federal agencies
and the Governor or Governors of any State and by the governing
body of any Indian tribe having sustained damage to natural re-
sources belonging to, managed by, controlled by, or appertaining to
such tribe, or held in trust for the benefit of such tribe, or belonging
to a member of such tribe if such resources are subject to a trust
restriction on alienation, having sustained damage to natural re-
sources within its borders, belonging to, managed by or appertain-
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58
ing to such State, after adequate public notice and opportunity for
hearing and consideration of all public comment.
(j) The President shall use the money in the Post-closure Liabil-
ity Fund for any of the purposes specified in subsection (a) of this
section with respect to a hazardous waste disposal facility for
which liability has transferred to such fund under section 107(k) of
this Act, and, in addition, for payment of any claim or appropriate
request for costs of response, damages, or other compensation for
injury or loss under section 107 of this Act or any other State or
Federal law, resulting from a release of a hazardous substance
from such a facility.
[(k) The Inspector General of each department or agency to
which responsibility to obligate money in the Fund is delegated
shall provide an audit review team to audit all payments, obliga-
tions, reimbursements, or other uses of the Fund, to assure that
the Fund is being properly administered and that claims are being
appropriately and expeditiously considered. Each such Inspector
General shall submit to the Congress an interim report one year
after the establishment of the Fund and a final report two years
after the establishment of the Fund. Each such Inspector General
shall thereafter provide such auditing of the Fund as is appropri-
ate. Each Federal agency shall cooperate with the Inspector Gener-
al in carrying out'this subsection.!
(k) INSPECTOR GENERAL.In each fiscal year, the Inspector Gener-
al of each department, agency, or instrumentality of the United
States which is carrying out any authority of this Act shall conduct
an annual audit of all payments, obligations, reimbursements, or
other uses of the Fund in the prior fiscal year, to assure that the
Fund is being properly administered and that claims are being ap-
propriately and expeditiously considered. The audit shall include
an examination of a sample of agreements with States (in accord-
ance with the provisions of the Single Audit Act} carrying out re-
sponse actions under this title and an examination of remedial in-
vestigations and feasibility studies prepared for remedial actions.
The Inspector General shall submit to the Congress an annual
report regarding the audit report required under this subsection.
The report shall contain such recommendations as the Inspector
General deems appropriate. Each department, agency, or instrumen-
tality of the United States shall cooperate with its inspector general
in carrying out this subsection.
(1) To the extent that the provisions of this Act permit, a foreign
claimant may assert a claim to the same extent that a United
States claimant may assert a claim if
(1) the release of a hazardous substance occurred (A) in the
navigable waters or (B) in or on the territorial sea or adjacent
shoreline of a foreign country of which the claimant is a resi-
dent;
(2) the claimant is not otherwise compensated for his Ices;
(3) the hazardous substance was released from a facility or
from a vessel located adjacent to or within the navigable
waters or was discharged in connection with activities conduct-
ed under the Outer Continental Shelf Lands Act, as amended
(43 U.S.C. 1331 et seq.) or the Deepwater Port Act of 1974, as
amended (33 U.S.C. 1501 et seq.); and
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(4) recovery is authorized by a treaty or an executive agree-
ment between the United States and foreign country involved,
or if the Secretary of State, in consultation with the Attorney
General and other appropriate officials, certifies that such
country provides a comparable remedy for United States claim-
ants.
(m) AGENCY FOR Toxic SUBSTANCES AND DISEASE REGISTRY.
There shall be directly available to the Agency for Toxic Substances
and Disease Registry to be used for the purpose of carrying out ac-
tivities described in subsection (cX4) and section 104(i) not less than
$50,000,000 per fiscal year for each of fiscal years 1987 and 1988,
not less than $55,000,000 for fiscal year 1989, and not less than
$60,000,000 per fiscal year for each of fiscal years 1990 and 1991.
Any funds so made available which are not obligated by the end of
the fiscal year in which made available shall be returned to the
Fund.
(n) LIMITATIONS ON RESEARCH, DEVELOPMENT, AND DEMONSTRA-
TION PROGRAM.
(1) SECTION sii(b).For each of the fiscal years 1987, 1988,
1989, 1990, and 1991, 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, ana demonstration pro-
gram for alternative or innovative technologies and training
program authorized under section 311(b) (relating to research,
development, and demonstration) other than basic research.
Such amounts shall remain available until expended.
(2) SECTION sii(a).From the amounts available in the
Fund, not more than the following amounts may be used for the
purposes of section 311(a) (relating to hazardous substance re-
search, demonstration, and training activities):
(A) For the fiscal year 1987, $3,000,000.
(B) For the fiscal year 1988, $10,000,000.
(C) For the fiscal year 1989, $20,000,000.
(D) For the fiscal year 1990, $30,000,000.
(E) For the fiscal year 1991, $35,000,000.
No more than 10 percent of such amounts shall be used for
training under section 311(a) in any fiscal year.
(3) SECTION sn
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60
(A) For fiscal year 1987, $212,500,000.
(B) For fiscal year 1988, $212,500,000.
(C) For fiscal year 1989, $212,500,000.
(D) For fiscal year 1990, $212,500,000.
(E) For fiscal year 1991, $212,500,000.
In addition there is authorized to be appropriated to the Haz-
ardous Substance Superfund for each fiscal year an amount
equal to so much of the aggregate amount authorized to be ap-
propriated under this subsection (and paragraph (2) of section
221(b) of the Hazardous Substance Response Revenue Act of
1980) as has not been appropriated before the beginning of the
fiscal year involved.
(2) COMPUTATION.The amounts authorized to be appropri-
ated under paragraph (1) of this subsection in a given fiscal
year shall be available only to the extent that such amount ex-
ceeds the amount determined by the Secretary under section
9507(b)(2) of the Internal Revenue Code of 1986 for the prior
fiscal year.
CLAIMS PROCEDURE
SEC. 112. [(a) All claims which may be asserted against the Fund
pursuant to section 111 of this title shall be presented in the first
instance to the owner, operator, or guarantor of the vessel or facili-
ty from which a hazardous substance has been released, if known
to the claimant, and to any other person known to the claimant
who may be liable under section 107 of this title. In any case where
the claim has not been satisfied within sixty days of presentation
in accordance with this subsection, the claimant may elect to com-
mence an action in court against such owner, operator, guarantor,
or other person or to present the claim to the Fund for payment.]
(a) CLAIMS AGAINST THE FUND FOR RESPONSE COSTS.-No claims
may be asserted against the Fund pursuant to section lll(a) unless
such claim is presented in the first instance to the owner, operator,
or guarantor of the vessel or facility from which a hazardous sub-
stance has been released, if known to the claimant, and to any other
person known to the claimant who may be liable under section 107.
In any case where the claim has not been satisfied within 60 days of
presentation in accordance with this subsection, the claimant may
present the claim to the Fund for payment. No claim against the
Fund may be approved or certified during the pendency of an action
by the claimant in court to recover costs which are the subject of the
claim.
t(bXD] (bXV PRESCRIBING FORMS AND PROCEDURES.The Presi-
dent shall prescribe appropriate forms and procedures for claims
filed hereunder, which shall include a provision requiring the
claimant to make a sworn verification of the claim to the best of
his knowledge. Any person who knowingly gives or causes to be
given any false information as a part of any such claim shall, upon
conviction, be fined [up to $5,000 or imprisoned for not more than
one year, or both.] in accordance with the applicable provisions of
title 18 of the United States Code or imprisoned for not more than 3
years (or not more than 5 years in the case of a second or subsequent
conviction), or both.
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[(2XA) Upon receipt of any claim, the President shall as soon as
practicable inform any known affected parties of the claim and
shall attempt to promote and arrange a settlement between the
claimant and any person who may be liable. If the claimant and
alleged liable party or parties can agree upon a settlement, it shall
be final and binding upon the parties thereto, who will be deemed
to have waived all recourse against the Fund.
[(B) Where a liable party is unknown or cannot be determined,
the claimant and the President shall attempt to arrange settlement
of any claim against the Fund. The President is authorized to
award and make payment of such a settlement, subject to such
proof and procedures as he may promulgate by regulation.
[(C) Except as provided in subparagraph (D) of this paragraph,
the President shall use the facilities and services of private insur-
ance and claims adjusting organizations or State agencies in imple-
menting this subsection and may contract to pay compensation for
those facilities and services. Any contract made under the provi-
sions of this paragraph may be made without regard to the provi-
sions of section 3709 of the Revised Statutes, as amended (41 U.S.C.
5), upon a showing by the President that advertising is not reason-
ably practicable. When the services of a State agency are used
hereunder, no payment may be made on a claim asserted on behalf
of that State o'r any of its agencies or subdivisions unless the pay-
ment has been approved by the President.
[(D) To the extent necessitated by extraordinary circumstances,
where the services of such private organizations or State agencies
are inadequate, the President may use Federal personnel to imple-
ment this subsection.
[(3) If no settlement is reached within forty-five days of filing of
a claim through negotiation pursuant to this section, the President
may, if he is satisfied that the information developed during the
processing of the claim warrants it, make and pay an award of the
claim. If the claimant is dissatisfied with the award, he may appeal
it in the manner provided for in subparagraph (G) of paragraph (4)
of this subsection. If the President declines to make an award, he
shall submit the claim for decision to a member of the Board of Ar-
bitrators established pursuant to paragraph (4).
[(4XA) Within ninety days of the enactment of this Act, the
President shall establish a Board of Arbitrators to implement this
subsection. The Board shall consist of as many members as the
President may determine will be necessary to implement this sub-
section expeditiously, and he may increase or decrease the size of
the Board at any time in his discretion in order to enable it to re-
spond to the demands of such implementation. Each member of the
Board shall be selected through utilization of the procedures of the
American Arbitration Association: Provided, however, That no reg-
ular employee of the President or any of the Federal departments,
administrations, or agencies to whom he delegated responsibilities
under this Act shall act as a member of the Board.
[(B) Hearings conducted hereunder shall be public and shall be
held in such place as may be agreed upon by the parties thereto,
or, in the absence of such agreement, in such place as the Presi-
dent determines, in his discretion, will be most convenient for the
parties thereto.
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5(C) Hearings before a member of the Board shall be informal,
the rules of evidence prevailing in judicial proceedings need
not be required. Each member of the Board shall have the power to
administer oaths and to subpena the attendance and testimony of
witnesses and the production of books, records, and other evidence
relative or pertinent to the issues presented to him for decision.
Testimony may be taken by interrogatory or deposition. Each
person appearing before a member of the Board shall have the
right to counsel. Subpenas shall be issued and enforced in accord-
ance with procedures in subsection (d) of section 555 of title 5,
United States Code, and rules promulgated by the President. If a
person fails or refuses to obey a subpena, the President may invoke
the aid of the district court of the United States where the person
is found, resides, or transacts business in requiring the attendance
and testimony of the person and the production by him of books,
papers, documents, or any tangible things.
[(D) In any proceeding before a member of the Board, the claim-
ant shall bear the burden of proving his claim. Should a member of
the Board determine that further investigations, monitoring, sur-
veys, testing, or other information gathering would be useful and
necessary in deciding the claim, he may request the President in
writing to undertake such activities pursuant to section 104(b) of
this title. The President shall dispose of such a request in his sole
discretion, taking into account various competing demands and the
availability of the technical and financial capacity to conduct such
studies, monitoring, and investigations. Should the President
decide to undertake the requested actions, all time requirements
for the processing and deciding of claims hereunder shall be sus-
pended until the President reports the results thereof to the
member of the Board.
£(E) All costs and expenses approved by the President attributa-
ble to the employment of any member of the Board shall be pay-
able from the Fund, including fees and mileage expenses for wit-
nesses summoned by such members on the same basis! and to the
same extent as if such witnesses were summoned before a district
court of the United States.
[(F) All decisions rendered by members of the Board shall be in
writing, with notification to all appropriate parties, ajid shall be
rendered within ninety days of submission of a claim to a member,
unless all the parties to the claim agree in writing to an extension
or unless the President extends the time limit pursuant to subpara-
graph (I) of this subsection.
f (G) All decisions rendered by members of the Board shall be
final, and any party to the proceeding may appeal such a decision
within thirty cays of notification of the award or decision. Any
such appeal shall be made to the Federal district court for the dis-
trict where the arbitral hearing took place. In any such appeal, the
award or decision of the member of the Board shall be considered
binding and conclusive, and shall not be overturned except for arbi-
trary or capricious abuse of the member's discretion: Provided,
however, That no such award or decision shall be admissible as evi-
dence of any issue of fact or law in any proceeding brought under
any other provision of this Act or under any other provision of law.
Nor shall any prearbitral settlement reached pursuant to subsec-
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tion (bX2XA) of this section be admissible as evidence in any such
proceeding.
[(H) Within twenty days of the expiration of the appeal period
for any arbitral award or decision, or within twenty days of the
final judicial determination of any appeal taken pursuant to this
subsection, the President shall pay any such award from the Fund.
The President shall determine the method, terms, and time of pay-
ment.
[(I) If at any time the President determines that, because of a
large number of claims arising from any incident or set of inci-
dents, it is in the best interests of the parties concerned, he may
extend the time for prearbitral negotiation or for rendering an ar-
bitral decision pursuant to this subsection by a period not to exceed
sixty days. He may also group such claims for submission to a
member of the Board of Arbitrators.]
(2) PAYMENT OR REQUEST FOR HEARING.The President may, if
satisfied that the information developed during the processing of
the claim warrants it, make and pay an award of the claim, except
that no claim may be awarded to the extent that a judicial judg-
ment has been made on the costs that are the subject of the claim. If
the President declines to pay all or part of the claim, the claimant
may, within 30 days after receiving notice of the President's deci-
sion, request an administrative hearing.
(3) BURDEN OF PROOF.In any proceeding under this subsection,
the claimant shall bear the burden of proving his claim.
(4) DECISIONS.All administrative decisions made hereunder
shall be in writing, with notification to all appropriate parties, and
shall be rendered within 90 days of submission of a claim to an ad-
ministrative law judge, unless all the parties to the claim agree in
writing to an extension or unless the President, in his discretion, ex-
tends the time limit for a period not to exceed sixty days.
(5) FINALITY AND APPEAL.All administrative decisions hereun-
der shall be final, and any party to the proceeding may appeal a.
decision within 30 days of notification of the award or decision.
Any such appeal shall be made to the Federal district court for the
district where the release or threat of release took place. In any such
appeal, the decision shall be considered binding and conclusive, and
shall not be overturned except for arbitrary or capricious abuse of
discretion.
(6) PAYMENT.Within 20 days after the expiration of the appeal
period for any administrative decision concerning an award, or
within 20 days after the final judicial determination of any appeal
taken pursuant to this subsection, the President shall pay any such
award from the Fund. The President shall determine the method,
terms, and time of payment.
(cXl) Payment of any claim by the Fund under this section shall
be subject to the United States Government acquiring by subroga-
tion the rights of the claimant to recover those costs of removal or
damages for which it has compensated the claimant from the
person responsible or liable for such release.
(2) Any person, including the Fund, who pays compensation pur-
suant to this Act to any claimant for damages or costs resulting
from a release of a hazardous substance shall be subrogated to all
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64
rights, claims, and causes of action for such damages a.nd costs of
removal that the claimant has under this Act or any other law.
(3) Upon request of the President, the Attorney General shall
commence an action on behalf of the Fund to recover any compen-
sation paid by the Fund to any claimant pursuant to this title, and,
without regard to any limitation of liability, all interest, adminis-
trative and adjudicative costs, and attorney's fees incurred by the
Fund by reason of the claim. Such an action may be commenced
against any owner, operator, or guarantor, or against any other
person who is liable, pursuant to any law, to the compensated
claimant or to the Fund, for the damages or costs for which com-
pensation was paid.
[(d) No claim may be presented, nor may an action be com-
menced for damages under this title, unless that claim is presented
or action commenced within three years from the date of the dis-
covery of the loss or the date of enactment of this Act, whichever is
later: Provided, however, That the time limitations contained
herein shall not begin to run against a minor until he reaches
eighteen years of age or a legal representative is duly appointed for
him, nor against an incompetent person until his incompetency
ends or a legal representative is duly appointed for him.]
(d) STA TUTE OF LIMIT A TIONS.
(1) CLAIMS FOR RECOVERY OF COSTS.No claim may be pre-
sented under this section for recovery of the costs referred to in
section 107(a) after the date 6 years after the date of completion
of all response action.
(2) CLAIMS FOR RECOVERY OF DAMAGES.No claim may be
presented under this section for recovery of the damages re-
ferred to in section 107(a) unless the claim is presented within 3
years after the later of the following:
(A) The date of the discovery of the loss and its connec-
tion with the release in question.
(B) The date on which final regulations are promulgated
under section 301(c).
(3) MINORS AND INCOMPETENTS.The time limitations con-
tained herein shall not begin to run
(A) against a minor until the earlier of the date when
such minor reaches 18 years of age or the date on which a
legal representative is duly appointed for the minor, or
(B) against an incompetent person until the earlier of the
date on which such person's incompetency ends or the date
on which a legal representative is duly appointed for such
incompetent person.
(e) Regardless of any State statutory or common law to the con-
trary, no person who asserts a claim against the Fund pursuant to
this title shall be deemed or held to have waived any other claim
not covered or assertable against the Fund under this title arising
from the same incident, transaction, or set of circumstances, nor to
have split a cause of action. Further, no person asserting a claim
against the Fund pursuant to this title shall as a result of any de-
termination of a question of fact or law made in connection with
that claim be deemed or held to be collaterally stopped from rais-
ing such question in connection with any other claim not covered
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65
or assertable against the Fund under this title arising from the
same incident, transaction, or set of circumstances.
(f) DOUBLE RECOVERY PROHIBITED.Where the President has
paid out of the Fund for any response costs or any costs specified
under section lll(c) (1) or (2), no other claim may be paid out of the
Fund for the same costs.
LITIGATION, JURISDICTION, AND VENUE
SEC. 113. (a) Review of any regulation promulgated under this
Act may be had upon application by any interested person only in
the Circuit Court of Appeals of the United States for the District of
Columbia. Any such application shall be made within ninety days
from the date of promulgation of such regulations. Any matter
with respect to which review could have been obtained under this
subsection shall not be subject to judicial review in any civil or
criminal proceeding for enforcement or to obtain damages or recov-
ery of response costs.
(b) Except as provided in [subsection] subsections (a) and (h) of
this section, the United States district courts shall have exclusive
original jurisdiction over all controversies arising under this Act,
without regard to the citizenship of the parties or the amount in
controversy. Venue shall lie in any district in which the release or
damages occurred, or in which the defendant resides, may be
found, or has his principal office. For the purposes of this section,
the Fund shall reside in the District of Columbia.
(c) The provisions of subsections (a) and (b) of this section shall
not apply to any controversy or other matter resulting from the as-
sessment of collection of any tax, as provided by title II of this Act,
or to the review of any regulation promulgated under the Internal
Revenue Code of 1954.
(d) No provision of this Act shall be deemed or held to moot any
litigation concerning any release of any hazardous substance, or
any damages associated therewith, commenced prior to enactment
of this Act.
(e) NATIONWIDE SERVICE OF PROCESS.In any action by the
United States under this Act, process may be served in any district
where the defendant is found, resides, transacts business, or has ap-
pointed an agent for the service of process.
(f) CONTRIBUTION.
(1) CONTRIBUTION.Any person may seek contribution from
any other person who is liable or potentially liable under sec-
tion 107(a), during or following any civil action under section
106 or under section 107(a). Such claims shall be brought in ac-
cordance with this section and the Federal Rules of Civil Proce-
dure, and shall be governed by Federal law. In resolving contri-
bution claims, the court may allocate response costs among
liable parties using such equitable factors as the court deter-
mines are appropriate. Nothing in this subsection shall dimin-
ish the right of any person to bring an action for contribution
in the absence of a civil action under section 106 or section 107.
(2) SETTLEMENT.A person who has resolved its liability to
the United States or a State in an administrative or judicially
approved settlement shall not be liable for claims for contribu-
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66
tion regarding matters addressed in the settlement. Such settle-
ment does not discharge any of the other potentially liable per-
sons unless its terms so provide, but it reduces the potential li-
ability of the others by the amount of the settlement.
(3) PERSONS NOT PARTY TO SETTLEMENT.(A) If the United
States or a State has obtained less than complete relief from a
person who has resolved its liability to the United States or the
State in an administrative or judicially approved settlement,
the United States or the State may bring an action against any
person who has not so resolved its liability.
(B) A person who has resolved its liability to the United
States or a State for some or all of a response action or for some
or all of the costs of such action in an administrative or judi-
cially approved settlement may seek contribution from any
person who is not party to a settlement referred to in paragraph
(2).
(C) In any action under this paragraph, the rights of any
person who has resolved its liability to the United States or a
State shall be subordinate to the rights of the United States or
the State. Any contribution action brought under this para-
graph shall be governed by Federal law.
(g) PERIOD IN WHICH ACTION MAY BE BROUGHT.
(1) ACTIONS FOR NATURAL RESOURCE DAMAGES.Except as
provided in paragraphs (3) and (4), no action may be com-
menced for damages (as defined in section 101(6)) under this
Act, unless that action is commenced within 3 years after the
later of the following:
(A) The date of the discovery of the loss and its connec-
tion with the release in question.
(B) The date on which regulations are promulgated under
section 301(c).
With respect to any facility listed on the National Priorities
List C'NPL"), any Federal facility identified under section 120
(relating to Federal facilities), or any vessel or facility at which
a remedial action under this Act is otherwise scheduled, an
action for damages under this Act must be commenced within 3
years after the completion of the remedial action (excluding op-
eration and maintenance activities) in lieu of the dates referred
to in subparagraph (A) or (B). In no event may an action for
damages under this Act with respect to such a vessel or facility
be commenced (i) prior to 60 days after the Federal or State nat-
ural resource trustee provides to the President and the poten-
tially responsible party a notice of intent to file suit, or (ii)
before selection of the remedial action if the President is dili-
gently proceeding with a remedial investigation and feasibility
study under section 104(b) or section 120 (relating to Federal fa-
cilities). The limitation in the preceding sentence on commenc-
ing an action before giving notice or before selection of the re-
medial action does not apply to actions filed on or before the
enactment of the Superfund Amendments and Reauthorization
Act of 1986.
(2) ACTIONS FOR RECOVERY OF COSTS.An initial action for
recovery of the costs referred to in section 107 must be com-
menced
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(A) for a removal action, within 3 years after completion
of the removal action, except that such cost recovery action
must be brought within 6 years after a determination to
grant a waiver under section 104(cXlXC) for continued re-
sponse action; and
(B) for a remedial action, within 6 years after initiation
of physical on-site construction of the remedial action,
except that, if the remedial action is initiated within 3
years after the completion of the removal action, costs in-
curred in the removal action may be recovered in the cost
recovery action brought under this subparagraph.
In any such action described in this subsection, the court shall
enter a declaratory judgment on liability for response costs or
damages that will be binding on any subsequent action or ac-
tions to recover further response costs or damages. A subsequent
action or actions under section 107 for further response costs at
the vessel or facility may be maintained at any time during the
response action, but must be commenced no later than 3 years
after the date of completion of all response action. Except as
otherwise provided in this paragraph, an action may be com-
menced under section 107 for recovery of costs at any time after
such costs have been incurred.
(3) CONTRIBUTION.No action for contribution for any re-
sponse costs or damages may be commenced more than 3 years
after
(A} the date of judgment in any action under this Act for
recovery of such costs or damages, or
(BJ the date of an administrative order under section
122(g) (relating to de minimis settlements) or 122(h) (relat-
ing to cost recovery settlements) or entry of a judicially ap-
proved settlement with respect to such costs or damages.
(4) SUBROGATION.No action based on rights subrogated pur-
suant to this section by reason of payment of a claim may be
commenced under this title more than 3 years after the date of
payment of such claim.
(5) ACTIONS TO RECOVER INDEMNIFICATION PAYMENTS.Not-
withstanding any other provision of this subsection, where a
payment pursuant to an indemnification agreement with a re-
sponse action contractor is made under section 119, an action
under section 107 for recovery of such indemnification payment
from a potentially responsible party may be brought at any time
before the expiration of 3 years from the date on which such
payment is made.
(6) MINORS AND INCOMPETENTS.The time limitations con-
tained herein shall not begin to run
(A) against a minor until the earlier of the date when
such minor reaches 18 years of age or the date on which a
legal representative is duly appointed for such minor, or
(B) against an incompetent person until the earlier of the
date on which such incompetent's incompetency ends or the
date on which a legal representative is duly appointed for
such incompetent.
(h) TIMING OF REVIEW.No Federal court shall have jurisdiction
under Federal law other than under section 1332 of title 28 of the
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United States Code (relating to diversity of citizenship jurisdiction)
or under State law which is applicable or relevant and appropriate
under section 121 (relating to cleanup standards) to review any chal-
lenges to removal or remedial action selected under section 104, or to
review any order issued under section 106(a), in any action except
one of the following:
(1) An action under section 107 to recover response costs or
damages or for contribution.
(2) An action to enforce an order issued under section 106(a)
or to recover a penalty for violation of such order.
(3) An action for reimbursement under section 106(bX2).
(4) An action under section 310 (relating to citizens suits) al-
leging that the removal or remedial action taken under section
104 or secured under section 106 was in violation of any re-
quirement of this Act. Such an action may not be brought with
regard to a removal where a remedial action is to be undertak-
en at the site.
(5) An action under section 106 in which the United States
has moved to compel a remedial action.
(i) INTERVENTION.In any action commenced under this Act or
under the Solid Waste Disposal Act in a court of the United States,
any person may intervene as a matter of right when such person
claims an interest relating to the subject of the action and is so situ-
ated that the disposition of the action may, as a practical matter,
impair or impede the person's ability to protect that interest, unless
the President or the State shows that the person's interest is ade-
quately represented by existing parties.
(j) JUDICIAL REVIEW.
(1) LIMITATION.In any judicial action under this Act, judi-
cial review of any issues concerning the adequacy of any re-
sponse action taken or ordered by the President shall be limited
to the administrative record. Otherwise applicable principles of
administrative law shall govern whether any supplemental ma-
terials may be considered py the court.
(2) STANDARD.In considering objections raised in any judi-
cial action under this Act, the court shall uphold the Presi-
dent's decision in selecting the response action unless the object-
ing party can demonstrate, on the administrative record, that
the decision was arbitrary and capricious or otherwise not in
accordance with law.
(3) REMEDY.If the court finds that the selection of the re-
sponse action was arbitrary and capricious or otherwise not in
accordance with law, the court shall award (A) only the re-
sponse costs or damages that are not inconsistent with the na-
tional contingency plan, and (B) such other relief as is consist-
ent with the National Contingency Plan.
(4) PROCEDURAL ERRORS.In reviewing alleged procedural
errors, the court may disallow costs or damages only if the
errors were so-serious and related to matters of such central rel-
evance to the action that the action would nave been signifi-
cantly changed had such errors not been made.
(k) ADMINISTRATIVE RECORD AND PARTICIPATION PROCEDURES.
(1) ADMINISTRATIVE RECORD.The President shall establish
an administrative record upon which the President shall base
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the selection of a response action. The administrative record
shall be available to the public at or near the facility at issue.
The President also may place duplicates of the administrative
record at any other location.
(2) PARTICIPATION PROCEDURES.
(A) REMOVAL ACTION.The President shall promulgate
regulations in accordance with chapter 5 of title 5 of the
United States Code establishing procedures for the appro-
priate participation of interested persons in the develop-
ment of the administrative record on which the President
will base the selection of removal actions and on which ju-
dicial review of removal actions will be based.
(B) REMEDIAL ACTION.The President shall provide for
the participation of interested persons, including potential-
ly responsible parties, in the development of the adminis-
trative record on which the President will base the selection
of remedial actions and on which judicial review of reme-
dial actions will be based. The procedures developed under
this subparagraph shall include, at a minimum, each of
the following:
(i) Notice to potentially affected persons and the
public, which shall be accompanied by a brief analysis
of the plan and alternative plans that were considered.
(ii) A reasonable opportunity to comment and provide
information regarding the plan.
(Hi) An opportunity for a public meeting in the af-
fected area, in accordance with section 117(aX2) (relat-
ing to public participation).
(iv) A response to each of the significant comments,
criticisms, and new data submitted in written or oral
presentations.
(v) A statement of the basis and purpose of the select-
ed action.
For purposes of this subparagraph, the administrative
record shall include all items developed and received under
this subparagraph and all items described in the second
sentence of section 117(d). The President shall promulgate
regulations in accordance with chapter 5 of title 5 of the
United States Code to carry out the requirements of this
subparagraph.
(C) INTERIM RECORD.Until such regulations under sub-
paragraphs (A) and (B) are promulgated, the administra-
tive record shall consist of all items developed and received
pursuant to current procedures for selection of the response
action, including procedures for the participation of inter-
ested parties and the public. The development of an admin-
istrative record and the selection of response action under
this Act shall not include an adjudicatory hearing.
(D) POTENTIALLY RESPONSIBLE PARTIES.The President
shall make reasonable efforts to identify and notify poten-
tially responsible parties as early as possible before selec-
tion of a response action. Nothing in this paragraph shall
be construed to be a defense to liability.
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(1) NOTICE OF ACTIONS.Whenever any action is brought under
this Act in a court of the United States by a plaintiff other than the
United States, the plaintiff shall provide a copy of the complaint to
the Attorney General of the United States and to the Administrator
of the Environmental Protection Agency.
RELATIONSHIP TO OTHER LAW
SEC. 114. (a) Nothing in this Act shall be construed or interpreted
as preempting any State from imposing any additional liability or
requirements with respect to the release of hazardous substances
within such State.
(b) Any person who receives compensation for removal costs or
damages or claims pursuant to this Act shall be precluded from re-
covering compensation for the same removal costs or damages or
claims pursuant to any other State or Federal law. Any person who
receives compensation for removal costs or damages or claims pur-
suant to any other Federal or State law shall be precluded from
receiving compensation for the same removal costs or damages or
claims as provided in this Act.
[(c) Except as provided in this Act, no person may be required to
contribute to any fund, the purpose of which is to pay compensa-
tion for claims for any costs of response or damages or claims
which may be compensated under this title. Nothing in this section
shall preclude any State from using general revenues for such a
fund, or from imposing a tax or fee upon any person or upon any
substance in order to finance the purchase or prepositioning of haz-
ardous substance response equipment or other preparations for the
response to a release of hazardous substances which affects such
State.]
(c) RECYCLED OIL.
(1) SERVICE STATION DEALERS, ETC.No person (including the
United States or any State} may recover, under the authority of
subsection (aX3) or (aX4) of section 107, from a service station
dealer for any response costs or damages resulting from a re-
lease or threatened release of recycled oil, or use the authority
of section 106 against a service station dealer other than a
person described in subsection (aXl) or (aX2) of section 107, if
such recycled oil
(A) is not mixed with any other hazardous substance,
and
(B) is stored, treated, transported, or otherwise managed
in compliance with regulations or standards promulgated
pursuant to section 3014 of the Solid Waste Disposal Act
and other applicable authorities.
Nothing in this paragraph shall affect or modify in any way
the obligations or liability of any person under any other provi-
sion of State or Federal law, including common law, for dam-
ages, injury, or loss resulting from a release or threatened re-
lease of any hazardous substance or for removal or remedial
action or the costs of removal or remedial action.
(2) PRESUMPTION.Solely for the purposes of this subsection,
a service station dealer may presume that a small quantity of
used oil is not mixed with other hazardous substances if it
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(A) has been removed from the engine of a light duty
motor vehicle or household appliances by the owner of such
vehicle or appliances, and
(B) is presented, by such owner, to the dealer for collec-
tion, accumulation, and delivery to an oil recycling facility.
(3) DEFINITION.For purposes of this subsection, the terms
"used oil" and "recycled oil" have the same meanings as set
forth in sections 1004(36) and 1004(37) of the Solid Waste Dis-
posal Act and regulationspromulgatedpursuant to that Act.
(4) EFFECTIVE DATE.The effective date of paragraphs (1) and
(2) of this subsection shall be the effective date of regulations or
standards promulgated under section 3014 of the Solid Waste
Disposal Act that include, among other provisions, a require-
ment to conduct corrective action to respond to any releases of
recycled oil under subtitle C or subtitle I of such Act.
(d) Except as provided in this title, no owner or operator of a
vessel or facility who establishes and maintains evidence of finan-
cial responsibility in accordance with this title shall be required
under any State or local law, rule, or regulation to establish or
maintain any other evidence of financial responsibility in connec-
tion with liability for the release of a hazardous substance from
such vessel or facility. Evidence of compliance with the financial
responsibility requirements of this title shall be accepted by a State
in lieu of any other requirement of financial responsibility imposed
by such State in connection with liability for the release of a haz-
ardous substance from such vessel or facility.
AUTHORITY TO DELEGATE, ISSUE REGULATIONS
SEC. 115. The President is authorized to delegate and assign any
duties or powers imposed upon or assigned to him and to promul-
gate any regulations necessary to carry out the provisions of this
title.
SEC. US. SCHEDULES.
(a) ASSESSMENT AND LISTING OF FACILITIES.It shall be a goal of
this Act that, to the maximum extent practicable
(1) not later than January 1, 1988, the President shall com-
plete preliminary assessments of all facilities that are contained
(as of the date of enactment of the Superfund Amendments and
Reauthorization Act of 1986) on the Comprehensive Environ-
mental Response, Compensation, and Liability Information
System (CERCLIS} including in each assessment a statement as
to whether a site inspection is necessary and by whom it should
be carried out; and
(2) not later than January 1, 1989, the President shall assure
the completion of site inspections at all facilities for which the
President has stated a site inspection is necessary pursuant to
paragraph (1).
(b) EVALUATION.Within 4 years after enactment of the Super-
fund Amendments and Reauthorization Act of 1986, each facility
listed (as of the date of such enactment) in the CERCLIS shall be
evaluated if the President determines that such evaluation is war-
ranted on the basis of a site inspection or preliminary assessment.
The evaluation shall be in accordance with the criteria established
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in section 105 under the National Contingency Plan for determining
priorities among release for inclusion on the National Priorities
List. In the case of a facility listed in the CERCLIS after the enact-
ment of the Superfund Amendments and Reauthorization Act of
1986, the facility shall be evaluated within 4 years after the date of
such listing if the President determines that such evaluation is war-
ranted on the basis of a site inspection or preliminary assessment.
(c) EXPLANATIONS.If any of the goals established by subsection
(a) or (b) are not achieved, the President shall publish an explana-
tion of why such action could not be completed by the specified date.
(d) COMMENCEMENT OF RI/FS.The President shall assure that
remedial investigations and feasibility studies (RI/FS) are com-
menced for facilities listed on the National Priorities List, in addi-
tion to those commenced prior to the date of enactment of the Super-
fund Amendments and Reauthorization Act of 1986, in accordance
with the following schedule:
(1) not fewer than 275 by the date 36 months after the date of
enactment of the Superfund Amendments and Reauthorization
Act of 1986, and
(2) if the requirement of paragraph (1) is not met, not fewer
than an additional 175 by the date 4 years after such date of
enactment, an additional 200 by the date 5 years after such
date of enactment, and a total of 650 by the date 5 years after
such date of enactment.
(e) COMMENCEMENT OF REMEDIAL ACTION.The President shall
assure that substantial and continuous physical on-site remedial
action commences at facilities on the National Priorities List, in ad-
dition to those facilities on which remedial action has commenced
prior to the date of enactment of the Superfund Amendments and
Reauthorization Act of 1986, at a rate not fewer than:
(1) 175 facilities during the first 36-month period after enact-
ment of this subsection; and
(2) 200 additional facilities during the following 24 months
after such 36-month period.
SEC. 117. PUBLIC PARTICIPATION.
(a) PROPOSED PLAN.Before adoption of any plan for remedial
action to be undertaken by the President, by a State, or by any other
person, under section 104, 106, 120, or 122, the President or State, as
appropriate, shall take both of the following actions:
(1) Publish a notice and brief analysis of the proposed plan
and make such plan available to the public.
(2) Provide a reasonable opportunity for submission of written
and oral comments and an opportunity for a public Beefing at
or near the facility at issue regarding the proposed pu-.i and re-
garding any proposed findings under section 121(dX4J (relating
to cleanup standards). The President or the State shall keep a
transcript of the meeting and make such transcript available to
the public.
The notice and analysis published under paragraph (1) shall in-
clude sufficient information as may be necessary to provide a rea-
sonable explanation of the proposed plan and alternative proposals
considered.
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(b) FINAL PLAN.Notice of the final remedial action plan adopted
snail be published and the plan shall be made available to the
public before commencement of any remedial action. Such final
plan shall be accompanied by a discussion of any significant
changes (and the reasons for such changes) in the proposed plan
and a response to each of the significant comments, criticisms, and
new data submitted in wi itten or oral presentations under subsec-
tion (a).
(c) EXPLANATION OF DIFFERENCES.After adoption of a final re-
medial action plan
(1) if any remedial action is taken,
(2) if any enforcemer t action under section 106 is taken, or
(3) if any settlemen t or consent decree under section 106 or
section 122 is entered into,
and if such action, settlei tent, or decree differs in any significant
respects from the final pla i, the President or the State shall publish
an explanation of the significant differences and the reasons such
changes were made.
(d) PUBLICATION.For he purposes of this section, publication
shall include, at a minim im, publication in a major local newspa-
per of general circulation. In addition, each item developed, re-
ceived, published, or made available to the public under this section
shall be available for put lie inspection and copying at or near the
facility at issue.
(e) GRANTS FOR TECHNICAL ASSISTANCE.
(1) AUTHORITY.Subject to such amounts as are provided in
appropriations Acts aid in accordance with rules promulgated
by the President, the President may make grants available to
any group of individv als which may be affected by a release or
threatened release at < my facility which is listed on the Nation-
al Priorities List under the National Contingency Plan. Such
grants may be used ty obtain technical assistance in interpret-
ing information with regard to the nature of the hazard, reme-
dial investigation ani feasibility study, record of decision, re-
medial design, selection and construction of remedial action,
operation and mainttnance, or removal action at such facility.
(2) AMOUNT.The amount of any grant under this subsection
may not exceed $50,0 W for a single grant recipient. The Presi-
dent may waive the $50,000 limitation in any case where such
waiver is necessary tc carry out the purposes of this subsection.
Each grant recipient shall be required, as a condition of the
grant, to contribute i \t least 20 percent of the total of costs of
the technical assistance for which such grant is made. The
President may waive the 20 percent contribution requirement if
the grant recipient demonstrates financial need and such
waiver is necessary to facilitate public participation in the selec-
tion of remedial action at the facility. Not more than one grant
may be made under this subsection with respect to a single fa-
cility, but the grant may be renewed to facilitate public partici-
pation at all stages of remedial action.
SEC. 118. HIGH PRIORITY FOR DRINKING WATER SUPPLIES.
For purposes of taking action under section 104 or 106 and listing
facilities on the National Priorities List, the President shall give a
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high priority to facilities where the release of hazardous substances
or pollutants or contaminants has resulted in the closing of drink-
ing water wells or has contaminated a principal drinking water
supply.
SEC. 119. RESPONSE ACTION CONTRACTORS.
(a) LIABILITY OF RESPONSE ACTION CONTRACTORS.
(1) RESPONSE ACTION CONTRACTORS.A person who is a re-
sponse action contractor with respect to any release or threat-
ened release of a hazardous substance or pollutant or contami-
nant from a vessel or facility shall not be liable under this title
or under any other Federal law to any person for injuries, costs,
damages, expenses, or other liability (including but not limited
to claims for indemnification or contribution and claims by
third parties for death, personal injury, illness or loss of or
damage to property or economic loss) which results from such
release or threatened release.
(2) NEGLIGENCE, ETC.Paragraph (1) shall not apply in the
case of a release that is caused by conduct of the response action
contractor which is negligent, grossly negligent, or which consti-
tutes intentional misconduct.
(3) EFFECT ON WARRANTIES; EMPLOYER LIABILITY.Nothing
in this subsection shall affect the liability of any person under
any warranty under Federal, State, or common law. Nothing in
this subsection shall affect the liability of an employer who is a
response action contractor to any employee of such employer
under any provision of law, including any provision of any law
relating to worker's compensation.
(4) GOVERNMENTAL EMPLOYEES.A state employee or an em-
ployee of a political subdivision who provides services relating
to response action while acting within the scope of his authority
as a governmental employee shall have the same exemption
from liability (subject to the other provisions of this section} as
is provided to the response action contractor under this section.
(b) SAVINGS PROVISIONS.
(1) LIABILITY OF OTHER PERSONS.The defense provided by
section 107(b)(3) shall not be available to any potentially respon-
sible party with respect to any costs or damages caused by any
act or omission of a response action contractor. Except as pro-
vided in subsection (aX4) and the preceding sentence, nothing in
this section shall affect the liability under this Act or under
any other Federal or State law of any person, other than a re-
sponse action contractor.
(2) BURDEN OF PLAINTIFF.Nothing in this section shall
affect the plaintiff's burden of establishing liability under this
title.
(c) INDEMNIFICATION.
(1) IN GENERAL.The President may agree to hold harmless
and indemnify any response action contractor meeting the re-
quirements of this subsection against any liability (including
the expenses of litigation or settlement) for negligence arising
out of the contractor's performance in carrying out response
action activities under this title, unless such liability was
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caused by conduct of the contractor which was grossly negligent
or which constituted intentional misconduct.
(2) APPLICABILITY.This subsection shall apply only with re-
spect to a response action carried out under written agreement
with i
(A) the President; I
(B) any Federal agency;
(C) a State or political subdivision which has entered
into a contract or cooperative agreement in accordance with
section 104(dXV of this title; or
(D) any potentially responsible party carrying out any
agreement under section 122 (relating to settlements) or sec-
tion 106 (relating to abatement).
(3) SOURCE OF FUNDING.This subsection shall not be subject
to section 1301 or 1341 of title 31 of the United States Code or
section 3732 of the Revised Statutes (41 U.S.C. IV or to section
3 of the Superfund Amendments and Reauthorization Act of
1986. For purposes of section 111, amounts expended pursuant
to this subsection for indemnification of any response action
contractor (except with respect to federally owned or operated
facilities) shall be considered governmental response costs in-
curred pursuant to section 104- If sufficient funds are unavail-
able in the Hazardous Substance Superfund established under
subchapter A of chapter 98 of the Internal Revenue Code of
1954 to make payments pursuant to such indemnification or if
the Fund is repealed, there are authorized to be appropriated
such amounts as may be necessary to make such payments.
(4) REQUIREMENTS.An indemnification agreement may be
provided under this subsection only if the President determines
that each of the following requirements are met:
(A) The liability covered by the indemnification agree-
ment exceeds or is not covered by insurance available, at a
fair and reasonable price, to the contractor at the time the
contractor enters into the contract to provide response
action, and adequate insurance to cover such liability is not
generally available at the time the response action contract
is entered into.
(B) The response action contractor has made diligent ef-
forts to obtain insurance coverage from non-Federal sources
to cover such liability.
(C} In the case of a response action contract covering more
than one facility, the response action contractor agrees to
continue to make such diligent efforts each time the con-
tractor begins work under the contract at a new facility.
(5) LIMIT A TIONS.
(A) LIABILITY COVERED.Indemnification under this sub-
section shall apply only to response action contractor liabil-
ity which results from a release of any hazardous substance
or pollutant or contaminant if such release arises out of re-
sponse action activities.
(B) DEDUCTIBLES AND LIMITS.An indemnification agree-
ment under this subsection shall include deductibles and
shall place limits on the amount of indemnification to be
made available.
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(C) CONTRACTS WITH POTENTIALLY RESPONSIBLE PAR-
TIES.
(i) DECISION TO INDEMNIFY.In deciding whether to
enter into an indemnification agreement with a re-
sponse action contractor carrying out a written contract
or agreement with any potentially responsible party,
the President shall determine an amount which the po-
tentially responsible party is able to indemnify the con-
tractor. The President may enter into such an indemni-
fication agreement only if the President determines
that such amount of indemnification is inadequate to
cover any reasonable potential liability of the contrac-
tor arising out of the contractor's negligence in per-
forming the contract or agreement with such party. The
President shall make the determinations in the preced-
ing sentences (with respect to the amount and the ade-
quacy of the amount} taking into account the total net
assets and resources of potentially responsible parties
with respect to the facility at the time of such determi-
nations.
(ii) CONDITIONS.The President may pay a claim
under an indemnification agreement referred to in
clause (i) for the amount determined under clause (i)
only if the contractor has exhausted all administrative,
judicial, and common law claims for indemnification
against all potentially responsible parties participating
in the clean-up of the facility with respect to the liabil-
ity of the contractor arising out of the contractor's neg-
ligence in performing the contract or agreement with
such party. Such indemnification agreement shall re-
quire such contractor to pay any deductible established
under subparagraph (B) before the contractor may re-
cover any amount from the potentially responsible
party or under the indemnification agreement.
(D) RCRA FACILITIES.No owner or operator of a facility
regulated under the Solid Waste Disposal Act may be in-
demnified under this subsection with respect to such facili-
ty-
(E) PERSONS RETAINED OR HIRED.A person retained or
hired by a person described in subsection (eX%XB) shall be
eligible for indemnification under this subsection only if
the President specifically approves of the retaining or
hiring of such person.
(6) COST RECOVERY.For purposes of section 107, amounts ex-
pended pursuant to this subsection for indemnification of any
person who is a response action contractor with respect to any
release or threatened release shall be considered a cost of re-
sponse incurred by the United States Government with respect
to such release.
(7) REGULATIONS.The President shall promulgate regula-
tions for carrying out the provisions of this subsection. Before
promulgation of the regulations, the President shall develop
guidelines to carry out this section. Development of such guide-
lines shall include reasonable opportunity for public comment.
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(8) STUDY.The Comptroller General shall conduct a study in
the fiscal year ending September 30, 1989, on the application of
this subsection, including whether indemnification agreements
under this subsection are being used, the number of claims that
have been filed under such agreements, and the need for this
subsection. The Comptroller General shall report the findings of
the study to Congress no later than September 30, 1989.
(d) EXCEPTION.The exemption provided under subsection (a) and
the authority of the President to offer indemnification under subsec-
tion (c) shall not apply to any person covered by the provisions of
paragraph (1), (2), (3), or (4) of section 107(a) with respect to the re-
lease or threatened release concerned if such person would be cov-
ered by such provisions even if such person had not carried out any
actions referred to in subsection (e) of this section.
(e) DEFINITIONS.For purposes of this section
(1) RESPONSE ACTION CONTRACT.The term "response action
contract" means any written contract or agreement entered into
by a response action contractor (as defined in paragraph (2XA)
of this subsection) with
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which has entered
into a contract or cooperative agreement in accordance with
section 104(d)(l) of this Act; or
(D) any potentially responsible party carrying out an
agreement under section 106 or 122;
to provide any remedial action under this Act at a facility
listed on the National Priorities List, or any removal under this
Act, with respect to any release or threatened release of a haz-
ardous substance or pollutant or contaminant from the facility
or to provide any evaluation, planning, engineering, surveying
and mapping, design, construction, equipment, or any ancillary
services thereto for such facility.
(2) RESPONSE ACTION CONTRACTOR.The term "response
action contractor" means
(A) any
(i) person who enters into a response action contract
with respect to any release or threatened release of a
hazardous substance or pollutant or contaminant from
a facility and is carrying out such contract; and
(ii) person, public or nonprofit private entity, con-
ducting a field demonstration pursuant to section
311(b); and
(B) any person who is retained or hired by a person de-
scribed in subparagraph (A) to provide any services relating
to a response action,
(3) INSURANCE.The term "insurance" means liability insur-
ance which is fair and reasonably priced, as determined by the
President, and which is made available at the time the contrac-
tor enters into the response action contract to provide response
action.
(f) COMPETITION.Response action contractors and subcontractors
for program management, construction management, architectural
ana engineering, surveying and mapping, and related services shall
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be selected in accordance with title IX of the Federal Property and
Administrative Services Act of 1949. The Federal selection proce-
dures shall apply to appropriate contracts negotiated by all Federal
governmental agencies involved in carrying out this Act. Such proce-
dures shall be followed by response action contractors and subcon-
tractors.
SEC. 120. FEDERAL FACILITIES.
(a) APPLICATION OF ACT TO FEDERAL GOVERNMENT.
(V IN GENERAL.Each department, agency, and instrumental-
ity of the United States (including the executive, legislative,
and judicial branches of government} shall be subject to, and
comply with, this Act in the same manner and to the same
extent, both procedurally and substantively, as any nongovern-
mental entity, including liability under section 107 of this Act.
Nothing in this section shall be construed to affect the liability
of any person or entity under sections 106 and 107.
(2) APPLICATION OF REQUIREMENTS TO FEDERAL FACILITIES.
All guidelines, rules, regulations, and criteria which are appli-
cable to preliminary assessments carried out under this Act for
facilities at which hazardous substances are located, applicable
to evaluations of such facilities under the National Contingency
Plan, applicable to inclusion on the National Priorities List, or
applicable to remedial actions at such facilities shall also be
applicable to facilities which are owned or operated by a de-
partment, agency, or instrumentality of the United States in the
same manner and to the extent as such guidelines, rules, regu-
lations, and criteria are applicable to other facilities. No de-
partment, agency, or instrumentality of the United States may
adopt or utilize any such guidelines, rules, regulations, or crite-
ria which are inconsistent with the guidelines, rules, regula-
tions, and criteria established by the Administrator under this
Act.
(3) EXCEPTIONS.This subsection shall not apply to the extent
otherwise provided in this section with respect to applicable
time periods. This subsection shall also not apply to any re-
quirements relating to bonding, insurance, or financial respon-
sibility. Nothing in this Act shall be construed to require a
State to comply with section 104(cX3) in the case of a facility
which is owned or operated by any department, agency, or in-
strumentality of the United States.
(4) STATE LAWS.State laws concerning removal and remedi-
al action, including State laws regarding enforcement, shall
apply to removal and remedial action at facilities owned or op-
erated by a department, agency, or instrumentality of the
United States when such facilities are not included on the Na-
tional Priorities List. The preceding sentence shall not apply to
the extent a State law would apply any standard or require-
ment to such facilities which is more stringent than the stand-
ards and requirements applicable to facilities which are not
owned or operated by any such department, agency, or instru-
mentality.
(b) NOTICE.Each department, agency, and instrumentality of the
United States shall add to the inventory of Federal agency hazard-
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ous waste facilities required to be submitted under section 3016 of
the Solid Waste Disposal Act (in addition to the information re-
quired under section 3016(aX3) of such Act) information on contami-
nation from each facility owned or operated by the department,
agency, or instrumentality if such contamination affects contiguous
or adjacent property owned by the department, agency, or instrumen-
tality or by any other person, including a description of the monitor-
ing data obtained.
(c) FEDERAL AGENCY HAZARDOUS WASTE COMPLIANCE DOCKET.
The Administrator shall establish a special Federal Agency Hazard-
ous Waste Compliance Docket (hereinafter in this section referred to
as the "docket ) which shall contain each of the following:
(1) All information submitted under section 3016 of the Solid
Waste Disposal Act and subsection (b) of this section regarding
any Federal facility and notice of each subsequent action taken
under this Act with respect to the facility.
(2) Information submitted by each department, agency, or in-
strumentality of the United States under section 3005 or 3010 of
such Act.
(3) Information submitted by the department, agency, or in-
strumentality under section 103 of this Act.
The docket shall be available for public inspection at reasonable
times. Six months after establishment of the docket and every 6
months thereafter, the Administrator shall publish in the Federal
Register a list of the Federal facilities which have been included in
the docket during the immediately preceding 6-month period. Such
publication shall also indicate where in the appropriate regional
office of the Environmental Protection Agency additional informa-
tion may be obtained with respect to any facility on the docket. The
Administrator shall establish a program to provide information to
the public with respect to facilities which are included in the docket
under this subsection.
(d) ASSESSMENT AND EVALUATION.Not later than 18 months
after the enactment of the Superfund Amendments and Reauthor-
ization Act of 1986, the Administrator shall take steps to assure
that a preliminary assessment is conducted for each facility on the
docket. Following such preliminary assessment, the Administrator
shall, where appropriate
(1) evaluate such facilities in accordance with the criteria es-
tablished in accordance with section 105 under the National
Contingency Plan for determining priorities among releases;
and
(2) include such facilities on the National Priorities List
maintained under such plan if the facility meets such criteria.
Such criteria shall be applied in the same manner as the criteria
are applied to facilities which are owned or operated by other per-
sons. Evaluation and listing under this subsection shall be complet-
ed not later than 30 months after such date of enactment. Upon the
receipt of a petition from the Governor of any State, the Administra-
tor shall make such an evaluation of any facility included in the
docket.
(e) REQUIRED ACTION BY DEPARTMENT.
(1) RIFS.Not later than 6 months after the inclusion of any
facility on the National Priorities List, the department, agency,
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or instrumentality which owns or operates such facility shall,
in consultation with the Administrator and appropriate State
authorities, commence a remedial investigation and feasibility
study for such facility. In the case of any facility which is listed
on such list before the date of the enactment of this section, the
department, agency, or instrumentality which owns or operates
such facility shall, in consultation with the Administrator and
appropriate State authorities, commence such an investigation
and study for such facility within one year after such date of
enactment. The Administrator and appropriate State authori-
ties shall publish a timetable and deadlines for expeditious
completion of such investigation and study.
(2) COMMENCEMENT OF REMEDIAL ACTION; INTERAGENCY
AGREEMENT.The Administrator shall review the results of
each investigation and study conducted as provided in para-
graph (1). Within 180 days thereafter, the head of the depart-
ment, agency, or instrumentality concerned shall enter into an
interagency agreement with the Administrator for the expedi-
tious completion by such department, agency, or instrumentality
of all necessary remedial action at such facility. Substantial
continuous physical onsite remedial action shall be commenced
at each facility not later than 15 months after completion of the
investigation and study. All such interagency agreements, in-
cluding review of alternative remedial action plans and selec-
tion of remedial action, shall comply with the public participa-
tion requirements of section 117.
(3) COMPLETION OF REMEDIAL ACTIONS.Remedial actions at
facilities subject to interagency agreements under this section
shall be completed as expeditiously as practicable. Each agency
shall include in its annual budget submissions to the Congress
a review of alternative agency funding which could be used to
provide for the costs of remedial action. The budget submission
shall also include a statement of the hazard posed by the facili-
ty to human health, welfare, and the environment and identify
the specific consequences of failure to begin and complete reme-
dial action.
(4) CONTENTS OF AGREEMENT.Each interagency agreement
under this subsection shall include, but shall not be limited to,
each of the following:
(A) A review of alternative remedial actions and selection
of a remedial action by the head of the relevant depart-
ment, agency, or instrumentality and the Administrator or,
if unable to reach agreement on selection of a remedial
action, selection by the Administrator.
(B) A schedule for the completion of each such remedial
action.
(C) Arrangements for long-term operation and mainte-
nance of the facility.
(5) ANNUAL REPORT.Each department, agency, or instrumen-
tality responsible for compliance with this section shall furnish
an annual report to the Congress concerning its progress in im-
plementing the requirements of this section. Such reports shall
include, but shall not be limited to, each of the following items:
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(A) A report on the progress in reaching interagency
agreements under this section.
(B) The specific cost estimates and budgetary proposals
involved in each interagency agreement.
(C) A brief summary of the public comments regarding
each proposed interagency agreement.
(D) A description of the instances in which no agreement
was reached.
(E) A report on progress in conducting investigations and
studies under paragraph (1).
(F) A report on progress in conducting remedial actions.
(G) A report on progress in conducting remedial action at
facilities which are not listed on the National Priorities
List.
With respect to instances in which no agreement was reached
within the required time period, the department, agency, or in-
strumentality filing the report under this paragraph shall in-
clude in such report an explanation of the reasons why no
agreement was reached. The annual report required by this
paragraph shall also contain a detailed description on a State-
by-State basis of the status of each facility subject to this sec-
tion, including a description of the hazard presented by each fa-
cility, plans'and schedules for initiating and completing re-
sponse action, enforcement status (where appropriate), and an
explanation of any postponements or failure to complete re-
sponse action. Such reports shall also be submitted to the affect-
ed States.
(6) SETTLEMENTS WITH OTHER PARTIES.If the Administrator,
in consultation with the head of the relevant department,
agency, or instrumentality of the United States, determines that
remedial investigations and feasibility studies or remedial
action will be done properly at the Federal facility by another
potentially responsible party within the deadlines provided in
paragraphs (1), (2), and (3) of this subsection, the Administrator
may enter into an agreement with such party under section 122
(relating to settlements). Following approval by the Attorney
General of any such agreement relating to a remedial action,
the agreement shall be entered in the appropriate United States
district court as a consent decree under section 106 of this Act.
(f) STATE AND LOCAL PARTICIPATION.The Administrator and
each department, agency, or instrumentality responsible for compli-
ance with this section shall afford to relevant State ana local offi-
cials the opportunity to participate in the planning and selection of
the remedial action, including but not limited to the review of all
applicable data as it becomes available and the development of
studies, reports, and action plans. In the case of State officials, the
opportunity to participate shall be provided in accordance with sec-
tion 121.
(a) TRANSFER OF AUTHORITIES.Except for authorities which are
delegated by the Administrator to an officer or employee of the En-
vironmental Protection Agency, no authority vested in the Adminis-
trator under this section may be transferred, by executive order of
the President or otherwise, to any other officer or employee of the
United States or to any other person.
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(h) PROPERTY TRANSFERRED BY FEDERAL AGENCIES.
(1) NOTICE.After the last day of the 6-month period begin-
ning on the effective date of regulations under paragraph (2) of
this subsection, whenever any department, agency, or instrumen-
tality of the United States enters into any contract for the sale
or other transfer of real property which is owned by the United
States and on which any hazardous substance was stored for
one year or more, known to have been released, or disposed of,
the head of such department, agency, or instrumentality shall
include in such contract notice of the type and quantity of such
hazardous substance and notice of the time at which such stor-
age, release, or disposal took place, to the extent such informa-
tion is available on the basis of a complete search of agency
files.
(2) FORM OF NOTICE; REGULATIONS.Notice under this subsec-
tion shall be provided in such form and manner as may be pro-
vided in regulations promulgated by the Administrator. As
promptly as practicable after the enactment of this subsection
but not later than 18 months after the date of such enactment,
and after consultation with the Administrator of the General
Services Administration, the Administrator shall promulgate
regulations regarding the notice required to be provided under
this subsection.
(3) CONTENTS OF CERTAIN DEEDS.After the last day of the 6-
month period beginning on the effective date of regulations
under paragraph (2) of this subsection, in the case of any real
property owned by the United States on which any hazardous
substance was stored for one year or more, known to have been
released, or disposed of, each deed entered into for the transfer
of such property by the United States to any other person or
entity shall contain
(A) to the extent such information is available on the
basis of a complete search of agency files
(i) a notice of the type and quantity of such hazard-
ous substances,
(ii) notice of the time at which such storage, release,
or disposal took place, and
(Hi) a description of the remedial action taken, if
any, and
(B) a covenant warranting that
(i) all remedial action necessary to protect human
health and the environment with respect to any such
substance remaining on the property has been taken
before the date of such transfer, and
(ii) any additional remedial action found to be neces-
sary after the date of such transfer shall be conducted
by the United States.
The requirements of subparagraph (B) shall not apply in any
case in which the person or entity to whom the property is
transferred is a potentially responsible party with respect to
such real property.
(i) OBLIGATIONS UNDER SOLID WASTE DISPOSAL ACT.Nothing in
this section shall affect or impair the obligation of any department,
agency, or instrumentality of the United States to comply with any
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requirement of the Solid Waste Disposal Act (including corrective
action requirements).
(j) NATIONAL SECURITY.
(1) SITE SPECIFIC PRESIDENTIAL ORDERS.The President may
issue such orders regarding response actions at any specified
site or facility of the Department of Energy or the Department
of Defense as may be necessary to protect the national security
interests of the United States at that site or facility. Such
orders may include, where necessary to protect such interests, an
exemption from any requirement contained in this title or under
title III of the Superfund Amendments and Reauthorization
Act of 1986 with respect to the site or facility concerned. The
President shall notify the Congress within 30 days of the issu-
ance of an order under this paragraph providing for any such
exemption. Such notification shall include a statement of the
reasons for the granting of the exemption. An exemption under
this paragraph shall be for a specified period which may not
exceed one year. Additional exemptions may be granted, each
upon the President's issuance of a new order under this para-
graph for the site or facility concerned. Each such additional
exemption shall be for a specified period which may not exceed
one year. It is the intention of the Congress that whenever an
exemption is issued under this paragraph the response action
shall proceed as expeditiously as practicable. The Congress
shall be notified periodically of the progress of any response
action with respect to which an exemption has been issued
under this paragraph. No exemption snail be granted under
this paragraph due to lack of appropriation unless the Presi-
dent shall have specifically requested such appropriation as a
part of the budgetary process and the Congress shall have failed
to make available such requested appropriation.
(2) CLASSIFIED INFORMATION.Notwithstanding any other
provision of law, all requirements of the Atomic Energy Act
and all Executive orders concerning the handling of restricted
data and national security information, including "need to
know " requirements, shall be applicable to any grant of access
to classified information under the provisions of this Act or
under title III of the Superfund Amendments and Reauthoriza-
tion Act of 1986.
SEC. 121. CLEANUP STANDARDS.
(a) SELECTION OF REMEDIAL ACTION.The President shall select
appropriate remedial actions determined to be necessary to be car-
ried out under section 104 or secured under section 106 which are in
accordance with this section and, to the extent practicable, the na-
tional contingency plan, and which provide for cost-effective re-
sponse. In evaluating the cost effectiveness of proposed alternative
remedial actions, the President shall take into account the total
short- and long-term costs of such actions, including the costs of op-
eration and maintenance for the entire period during which such
activities will be required.
(b) GENERAL RULES.(1) Remedial actions in which treatment
which permanently and significantly reduces the volume, toxicity or
mobility of the hazardous substances, pollutants, and contaminants
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is a principal element, are to be preferred over remedial actions not
involving such treatment. The offsite transport and disposal of haz-
ardous substances or contaminated materials without such treat-
ment should be the least favored alternative remedial action where
practicable treatment technologies are available. The President
shall conduct an assessment of permanent solutions and alternative
treatment technologies or resource recovery technologies that, in
whole or in part, will result in a permanent and significant de-
crease in the toxicity, mobility, or volume of the hazardous sub-
stance, pollutant, or contaminant. In making such assessment, the
President shall specifically address the long-term effectiveness of
various alternatives. In assessing alternative remedial actions, the
President shall, at a minimum, take into account:
(A) the long-term uncertainties associated with land disposal;
(B) the goals, objectives, and requirements of the Solid Waste
Disposal Act;
(C) the persistence, toxicity, mobility, and propensity to bioac-
cumulate of such hazardous substances and their constituents;
(D) short- and long-term potential for adverse health effects
from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial action costs if the alter-
native remedial action in question were to fail; and
(G) the potential threat to human health and the environ-
ment associated with excavation, transportation, and redispo-
sal, or containment.
The President shall select a remedial action that is protective of
human health and the environment, that is cost effective, and that
utilizes permanent solutions and alternative treatment technologies
or resource recovery technologies to the maximum extent practicable.
If the President selects a remedial action not appropriate for a pref-
erence under this subsection, the President shall publish an expla-
nation as to why a remedial action involving such reductions was
not selected.
(2) The President may select an alternative remedial action meet-
ing the objectives of this subsection whether or not such action has
been achieved in practice at any other facility or site that has simi-
lar characteristics. In making such a selection, the President may
take into account the degree of support for such remedial action by
parties interested in such site.
(c) REVIEW.If the President selects a remedial action that re-
sults in any hazardous substances, pollutants, or contaminants re-
maining at the site, the President shall review such remedial action
no less often than each 5 years after the initiation of such remedial
action to assure that human health and the environment are being
protected by the remedial action being implemented. In addition, if
upon such review it is the judgment of the President that action is
appropriate at such site in accordance with section 104 or 106, the
President shall take or require such action. The President shall
report to the Congress a list of facilities for which such review is
required, the results of all such reviews, and any actions taken as a
result of such reviews.
(d) DEGREE OF CLEANUP.(1) Remedial actions selected under
this section or otherwise required or agreed to by the President
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under this Act shall attain a degree of cleanup of hazardous sub-
stances, pollutants, and contaminants released into the environment
and of control of further release at a minimum which assures pro-
tection of human health and the environment. Such remedial ac-
tions shall be relevant and appropriate under the circumstances pre-
sented by the release or threatened release of such substance, pollut-
ant, or contaminant.
(2XA) With respect to any hazardous substance, pollutant or con-
taminant that will remain onsite, if
(i) any standard, requirement, criteria, or limitation under
any Federal environmental law, including, but not limited to,
the Toxic Substances Control Act, the Safe Drinking Water Act,
the Clean Air Act, the Clean Water Act, the Marine Protection,
Research and Sanctuaries Act, or the Solid Waste Disposal Act;
or
(ii) any promulgated standard, requirement, criteria, or limi-
tation under a State environmental or facility siting law that is
more stringent than any Federal standard, requirement, crite-
ria, or limitation, including each such State standard, require-
ment, criteria, or limitation contained in a program approved,
authorized or delegated by the Administrator under a statute
cited in subparagraph (A), and that has been identified to the
President by the State in a timely manner,
is legally applicable to the hazardous substance or pollutant or con-
taminant concerned or is relevant and appropriate under the cir-
cumstances of the release or threatened release of such hazardous
substance or pollutant or contaminant, the remedial action selected
under section 104 or secured under section 106 shall require, at the
completion of the remedial action, a level or standard of control for
such hazardous substance or pollutant or contaminant which at
least attains such legally applicable or relevant and appropriate
standard, requirement, criteria, or limitation. Such remedial action
shall require a level or standard of control which at least attains
Maximum Contaminant Level Goals established under the Safe
Drinking Water Act and water quality criteria established under
section 304 or 303 of the Clean Water Act, where such goals or crite-
ria are relevant and appropriate under the circumstances of the re-
lease or threatened release.
(BXi) In determining whether or not any water quality criteria
under the Clean Water Act is relevant and appropriate under the
circumstances of the release or threatened release, the President
shall consider the designated or potential use of the surface or
groundwater, the environmental media affected, the purposes for
which such criteria were developed, and the latest information
available.
(ii) For the purposes of this section, a process for establishing al-
ternate concentration limits to those otherwise applicable for haz-
ardous constituents in groundwater under subparagraph (A) may
not be used to establish applicable standards under this paragraph
if the process assumes a point of human exposure beyond the bound-
ary of the facility, as defined at the conclusion of the remedial in-
vestigation and feasibility study, except where
(I) there are known and projected points of entry of such
groundwater into surface water; and
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(II) on the basis of measurements or projections, there is or
will be no statistically significant increase of such constituents
from such groundwater in such surface water at the point of
entry or at any point where there is reason to believe accumula-
tion of constituents may occur downstream; and
(III) the remedial action includes enforceable measures that
will preclude human exposure to the contaminated groundwater
at any point between the facility boundary and all known and
projected points of entry of such groundwater into surface water
then the assumed point of human exposure may be at such known
and projected points of entry.
(CXi) Clause (ii) of this subparagraph shall be applicable only in
cases where, due to the President's selection, in compliance with
subsection (bXV, of a proposed remedial action which does not per-
manently and significantly reduce the volume, toxicity, or mobility
of hazardous substances, pollutants, or contaminants, the proposed
disposition of waste generated by or associated with the remedial
action selected by the President is land disposal in a State referred
to in clause (ii).
(ii) Except as provided in clauses (Hi) and (iv), a State standard,
requirement, criteria, or limitation (including any State siting
standard or requirement) which could effectively result in the state-
wide prohibition of land disposal of hazardous substances, pollut-
ants, or contaminants shall not apply.
(Hi) Any State standard, requirement, criteria, or limitation re-
ferred to in clause (ii) shall apply where each of the following condi-
tions is met:
(I) The State standard, requirement, criteria, or limitation is
of general applicability and was adopted by formal means.
(II) The State standard, requirement, criteria, or limitation
was adopted on the basis of hydrologic, geologic, or other rele-
vant considerations and was not adopted for the purpose of pre-
cluding onsite remedial actions or other land disposal for rea-
sons unrelated to protection of human health and the environ-
ment.
(Ill) The State arranges for, and assures payment of the incre-
mental costs of utilizing, a facility for disposition of the haz-
ardous substances, pollutants, or contaminants concerned.
(iv) Where the remedial action selected by the President does not
conform to a State standard and the State has initiated a law suit
against the Environmental Protection Agency prior to May 1, 1986,
to seek to have the remedial action conform to such standard, the
President shall conform the remedial action to the State standard.
The State shall assure the availability of an offsite facility for such
remedial action.
(3) In the case of any removal or remedial action involving the
transfer of any hazardous substance or pollutant or contaminant
offsite, such hazardous substance or pollutant or contaminant shall
only be transferred to a facility which is operating in compliance
with section, 3004 and 3005 of the Solid Waste Disposal Act (or,
where applicable, in compliance with the Toxic Substances Control
Act or other applicable Federal law) and all applicable State re-
quirements. Such substance or pollutant or contaminant may be
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transferred to a land disposal facility only if the President deter-
mines that both of the following requirements are met:
(A) The unit to which trie hazardous substance or pollutant
or contaminant is transferred is not releasing any hazardous
waste, or constituent thereof, into the groundwater or surface
water or soil.
(B) All such releases from other units at the facility are being
controlled by a corrective action program approved by the Ad-
ministrator under subtitle C of the Solid Waste Disposal Act.
The President shall notify the owner or operator of such facility of
determinations under this paragraph.
(4) The President may select a remedial action meeting the re-
quirements of paragraph (1) that does not attain a level or standard
of control at least equivalent to a legally applicable or relevant and
appropriate standard, requirement, criteria, or limitation as re-
quired by paragraph (2) (including subparagraph (B) thereof), if the
President finds that
(A) the remedial action selected is only part of a total remedi-
al action that will attain such level or standard of control
when completed;
(B) compliance with such requirement at that facility will
result in greater risk to human health and the environment
than alternative options;
(C) compliance with such requirements is technically imprac-
ticable from an engineering perspective;
(D) the remedial action selected will attain a standard of per-
formance that is equivalent to that required under the other-
wise applicable standard, requirement, criteria, or limitation,
through use of another method or approach;
(E) with respect to a State standard, requirement, criteria, or
limitation, the State has not consistently applied (or demon-
strated the intention to consistently apply) the standard, re-
quirement, criteria, or limitation in similar circumstances at
other remedial actions within the State; or
(F) in the case of a remedial action to be undertaken solely
under section 104 using the Fund, selection of a remedial action
that attains such level or standard of control will not provide a
balance between the need for protection of public health and
welfare and the environment at the facility under consider-
ation, and the availability of amounts from the Fund to re-
spond to other sites which present or may present a threat to
public health or welfare or the environment, taking into consid-
eration the relative immediacy of such threats.
The President shall publish such findings, together with an expla-
nation and appropriate documentation.
(e) PERMITS AND ENFORCEMENT.(1) No Federal, State, or local
permit shall be required for the portion of any removal or remedial
action conducted entirely onsite, where such remedial action is se-
lected and carried out in compliance with this section.
(2) A State may enforce any Federal or State standard, require-
ment, criteria, or limitation to which the remedial action is re-
quired to conform under this Act in the United States district court
for the district in which the facility is located. Any consent decree
shall require the parties to attempt expeditiously to resolve disagree-
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merits concerning implementation of the remedial action informally
with the appropriate Federal and State agencies. Where the parties
agree, the consent decree may provide for administrative enforce-
ment. Each consent decree shall also contain stipulated penalties
for violations of the decree in an amount not to exceed $25,000 per
day, which may be enforced by either the President or the State.
Such stipulated penalties shall not be construed to impair or affect
the authority of the court to order compliance with the specific
terms of any such decree.
(f) STATE INVOLVEMENT.(V The President shall promulgate reg-
ulations providing for substantial and meaningful involvement by
each State in initiation, development, and selection of remedial ac-
tions to be undertaken in that State. The regulations, at a mini-
mum, shall include each of the following:
(A) State involvement in decisions whether to perform a pre-
liminary assessment and site inspection.
(B) Allocation of responsibility for hazard ranking system
scoring.
(C) State concurrence in deleting sites from the National Pri-
orities List.
(D) State participation in the long-term planning process for
all remedial -sites within the State.
(E) A reasonable opportunity for States to review and com-
ment on each of the following:
(i) The remedial investigation and feasibility study and
all data and technical documents leading to its issuance.
(ii) The planned remedial action identified in the remedi-
al investigation and feasibility study.
(Hi) The engineering design following selection of the
final remedial action.
(iv) Other technical data and reports relating to imple-
mentation of the remedy.
(v) Any proposed finding or decision by the President to
exercise the authority of subsection (dX4).
(F) Notice to the State of negotiations with potentially respon-
sible parties regarding the scope of any response action at a fa-
cility in the State and an opportunity to participate in such ne-
gotiations and, subject to paragraph (2), be a party to any settle-
ment.
(G) Notice to the State and an opportunity to comment on the
President's proposed plan for remedial action as well as on al-
ternative plans under consideration. The President's proposed
decision regarding the selection of remedial action shall be ac-
companied by a response to the comments submitted by the
State, including an explanation regarding any decision under
subsection (dX4) on compliance with promulgated State stand-
ards. A copy of such response shall also be provided to the
State.
(H) Prompt notice and explanation of each proposed action to
the State in which the facility is located.
Prior to the promulgation of such regulations, the President shall
provide notice to the State of negotiations with potentially responsi-
ble parties regarding the scope of any response action at a facility in
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the State, and such State may participate in such negotiations and,
subject to paragraph (2), any settlements.
(2XA) This paragraph shall apply to remedial actions secured
under section 106. At least 30 days prior to the entering of any con-
sent decree, if the President proposes to select a remedial action that
does not attain a legally applicable or relevant and appropriate
standard, requirement, criteria, or limitation, under the authority of
subsection (dX4), the President shall provide an opportunity for the
State to concur or not concur in such selection. If the State concurs,
the State may become a signatory to the consent decree.
(B) If the State does not concur in such selection, and the State
desires to have the remedial action conform to such standard, re-
quirement, criteria, or limitation, the State shall intervene in the
action under section 106 before entry of the consent decree, to seek to
have the remedial action so conform. Such intervention shall be a
matter of right. The remedial action shall conform to such stand-
ard, requirement, criteria, or limitation if the State establishes, on
the administrative record, that the finding of the President was not
supported by substantial evidence. If the court determines that the
remedial action shall conform to such standard, requirement, crite-
ria, or limitation, the remedial action shall be so modified and the
State may become a signatory to the decree. If the court determines
that the remedial action need not conform to such standard, re-
quirement, criteria, or limitation, and the State pays or assures the
payment of the additional costs attributable to meeting such stand-
ard, requirement, criteria, or limitation, the remedial action shall
be so modified and the State shall become a signatory to the decree.
(C) The President may conclude settlement negotiations with po-
tentially responsible parties without State concurrence.
(3XA) This paragraph shall apply to remedial actions at facilities
owned or operated by a department, agency, or instrumentality of
the United States. At least 30 days prior to the publication of the
President's final remedial action plan, if the President proposes to
select a remedial action that does not attain a legally applicable or
relevant and appropriate standard, requirement, criteria, or limita-
tion, under the authority of subsection (dX4), the President shall
provide an opportunity for the State to concur or not concur in such
selection. If the State concurs, or does not act within 30 days, the
remedial action may proceed.
(B) If the State does not concur in such selection as provided in
subparagraph (A), and desires to have the remedial action conform
to such standard, requirement, criteria, or limitation, the State may
maintain an action as follows:
(i) If the President has notified the State of selection of such
a remedial action, the State may bring an action within 30 days
of such notification for the sole purpose of determining whether
the finding of the President is supported by substantial evi-
dence. Such action shall be brought in the United States dis-
trict court for the district in which the facility is located.
(ii) If the State establishes, on the administrative record, that
the President's finding is not supported by substantial evidence,
the remedial action shall be modified to conform to such stand-
ard, requirement, criteria, or limitation.
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(Hi) If the State fails to establish that the President's finding
was not supported by substantial evidence and if the State pays,
within 60 days of judgment, the additional costs attributable to
meeting such standard, requirement, criteria, or limitation, the
remedial action shall be selected to meet such standard, re-
quirement, criteria, or limitation. If the State fails to pay
within 60 days, the remedial action selected by the President
shall proceed through completion.
(C) Nothing in this section precludes, and the court shall not
enjoin, the Federal agency from taking any remedial action unrelat-
ed to or not inconsistent with such standard, requirement, criteria,
or limitation.
SEC. 122. SETTLEMENTS.
(a) AUTHORITY To ENTER INTO AGREEMENTS.The President, in
his discretion, may enter into an agreement with any person (includ-
ing the owner or operator of the facility from which a release or sub-
stantial threat of release emanates, or any other potentially respon-
sible person), to perform any response action (including any action
described in section 104(b)) if the President determines that such
action will be done properly by such person. Whenever practicable
and in the public interest, as determined by the President, the Presi-
dent shall act to facilitate agreements under this section that are in
the public interest and consistent with the National Contingency
Plan in order to expedite effective remedial actions and minimize
litigation. If the President decides not to use the procedures in this
section, the President shall notify in writing potentially responsible
parties at the facility of such decision and the reasons why use of
the procedures is inappropriate. A decision of the President to use or
not to use the procedures in this section is not subject to judicial
review.
(b) AGREEMENTS WITH POTENTIALLY RESPONSIBLE PARTIES.
(1) MIXED FUNDING.An agreement under this section may
provide that the President will reimburse the parties to the
agreement from the Fund, with interest, for certain costs of ac-
tions under the agreement that the parties have agreed to per-
form but which the President has agreed to finance. In any case
in which the President provides such reimbursement, the Presi-
dent shall make all reasonable efforts to recover the amount of
such reimbursement under section 107 or under other relevant
authorities.
(2) REVIEW ABILITY.The President's decisions regarding the
availability of fund financing under this subsection shall not
be subject to judicial review under subsection (d).
(3) RETENTION OF FUNDS.If, as part of any agreement, the
President will be carrying out any action and the parties will be
paying amounts to the President, the President may, notwith-
standing any other provision of law, retain and use such
amounts for purposes of carrying out the agreement.
(4) FUTURE OBLIGATION OF FUND.In the case of a completed
remedial action pursuant to an agreement described in para-
graph (1), the Fund shall be subject to an obligation for subse-
quent remedial actions at the same facility but only to the
extent that such subsequent actions are necessary by reason of
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the failure of the original remedial action. Such obligation
shall be in a proportion equal to, but not exceeding, the propor-
tion contributed by the Fund for the original remedial action.
The Fund's obligation for such future remedial action may be
met through Fund expenditures or through payment, following
settlement or enforcement action, by parties who were not signa-
tories to the original agreement.
(c) EFFECT OF AGREEMENT.
(1) LIABILITY.Whenever the President has entered into an
agreement under this section, the liability to the United States
under this Act of each party to the agreement, including any
future liability to the United States, arising from the release or
threatened release that is the subject of the agreement shall be
limited as provided in the agreement pursuant to a covenant
not to sue in accordance with subsection (f). A covenant not to
sue may provide that future liability to the United States of a
settling potentially responsible party under the agreement may
be limited to the same proportion as that established in the
original settlement agreement. Nothing in this section shall
limit or otherwise affect the authority of any court to review in
the consent decree process under subsection (d) any covenant not
to sue contained in an agreement under this section. In deter-
mining the extent to which the liability of parties to an agree-
ment shall be limited pursuant to a covenant not to sue, the
President shall be guided by the principle that a more complete
covenant not to sue shall be provided, for a more permanent
remedy undertaken by such parties.
(2) ACTIONS AGAINST OTHER PERSONS.If an agreement has
been entered into under this section, the President may take any
action under section 106 against any person who is not a party
to the agreement, once the period for submitting a proposal
under subsection (eX2)(B) has expired. Nothing in this section
shall be construed to affect either of the following:
(A) The liability of any person under section 106 or 107
with respect to any costs or damages which are not includ-
ed in the agreement.
(B) The authority of the President to maintain an action
under this Act against any person who is not a party to the
agreement.
(d) ENFORCEMENT.
(1) CLEANUP AGREEMENTS.
(A) CONSENT DECREE.Whenever the President enters
into an agreement under this section with any potentially
responsible party with respect to remedial action under sec-
tion 106, following approval of the agreement by the Attor-
ney General, except as otherwise provided in the case of cer-
tain administrative settlements referred to in subsection (g),
the agreement shall be entered in the appropriate United
States district court as a consent decree. The President need
not make any finding regarding an imminent and substan-
tial endangerment to the public health or the environment
in connection with any such agreement or consent decree.
(B) EFFECT.The entry of any consent decree under this
subsection shall not be construed to be an acknowledgment
65-705 0-87-4
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by the parties that the release or threatened release con-
cerned constitutes an imminent and substantial endanger-
ment to the public health or welfare or the environment.
Except as otherwise provided in the Federal Rules of Evi-
dence, the participation by any party in the process under
this section shall not be considered an admission of liabil-
ity for any purpose, and the fact of such participation shall
not be admissible in any judicial or administrative proceed-
ing, including a subsequent proceeding under this section.
(C) STRUCTURE.The President may fashion a consent
decree so that the entering of such decree and compliance
with such decree or with any determination or agreement
made pursuant to this section shall not be considered an
admission of liability for any purpose.
(2) PUBLIC PARTICIPATION.
(A) FILING OF PROPOSED JUDGMENT.At least 30 days
before a final judgment is entered under paragraph (1), the
proposed judgment shall be filed with the court.
(B) OPPORTUNITY FOR COMMENT.The Attorney General
shall provide an opportunity to persons who are not named
as parties to the action to comment on the proposed judg-
ment before its entry by the court as a final judgment. The
Attorney General shall consider, and file with the court,
any written comments, views, or allegations relating to the
proposed judgment. The Attorney General may withdraw or
withhold its consent to the proposed judgment if the com-
ments, views, and allegations concerning the judgment dis-
close facts or considerations which indicate that the pro-
posed judgment is inappropriate, improper, or inadequate.
(3) 104(b) AGREEMENTS.Whenever the President enters into
an agreement under this section with any potentially responsi-
ble party with respect to action under section 104(b), the Presi-
dent shall issue an order or enter into a decree setting forth the
obligations of such party. The United States district court for
the district in which the release or threatened release occurs
may enforce such order or decree.
(e) SPECIAL NOTICE PROCEDURES.
(1) NOTICE.Whenever the President determines that a period
of negotiation under this subsection would facilitate an agree-
ment with potentially responsible parties for taking response
action (including any action described in section 104(b)) and
would expedite remedial action, the President shall so notify all
such parties and shall provide them with information concern-
ing each of the following:
(A) The names and addresses of potentially responsible
parties (including owners and operators and other persons
referred to in section 107(a)), to the extent such information
is available.
(B) To the extent such information is available, the
volume and nature of substances contributed by each poten-
tially responsible party identified at the facility.
(C) A ranking by volume of the substances at the facility,
to the extent such information is available.
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The President shall make the information referred to in this
paragraph available in advance of notice under this paragraph
upon the request of a potentially responsible party in accord-
ance with procedures provided by the President, The provisions
of subsection (e) of section 104 regarding protection of confiden-
tial information apply to information provided under this para-
graph. Disclosure of information generated by the President
under this section to persons other than the Congress, or any
duly authorized Committee thereof, is subject to other privileges
or protections provided by law, including (but not limited to)
those applicable to attorney work product. Nothing contained in
this paragraph or in other provisions of this Act shall be con-
strued, interpreted, or applied to diminish the required disclo-
sure of information under other provisions of this or other Fed-
eral or State laws.
(2) NEGOTIATION.
(A) MORATORIUM.Except as provided in this subsection,
the President may not commence action under section
104(a) or take any action under section 108 for 120 days
after providing notice and information under this subsec-
tion with respect to such action. Except as provided in this
subsection, the President may not commence a remedial in-
vestigation and feasibility study under section 104(b) for 90
days after providing notice and information under this sub-
section with respect to such action. The President may com-
mence any additional studies or investigations authorized
under section 104(b), including remedial design, during the
negotiation period.
(B) PROPOSALS.Persons receiving notice and informa-
tion under paragraph (1) of this subsection with respect to
action under section 106 shall have 60 days from the date
of receipt of such notice to make a proposal to the President
for undertaking or financing the action under section 106.
Persons receiving notice and information under paragraph
(1) of this subsection with respect to action under section
104(p) shall have 60 days from the date of receipt of such
notice to make a proposal to the President for undertaking
or financing the action under section 104(b).
(C) ADDITIONAL PARTIES.If an additional potentially re-
sponsible party is identified during the negotiation period
or after an agreement has been entered into under this sub-
section concerning a release or threatened release, the Presi-
dent may bring the additional party into the negotiation or
enter into a separate agreement with such party.
(3) PRELIMINARY ALLOCATION OF RESPONSIBILITY.
(A) IN GENERAL.The President shall develop guidelines
for preparing nonbinding preliminary allocations of respon-
sibility. In developing these guidelines the President may
include such factors as the President considers relevant,
such as: volume, toxicity, mobility, strength of evidence,
ability to pay, litigative risks, public interest consider-
ations, precedential value, and inequities and aggravating
factors. When it would expedite settlements under this sec-
tion and remedial action, the President may, after comple-
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tion of the remedial investigation and feasibility study, pro-
vide a nonbinding preliminary allocation of responsibility
which allocates percentages of the total cost of response
among potentially responsible parties at the facility.
(B) COLLECTION OF INFORMATION.To collect information
necessary or appropriate for performing the allocation
under subparagraph (A) or for otherwise implementing this
section, the President may by subpoena require the attend-
ance and testimony of witnesses and the production of re-
ports, papers, documents, answers to questions, and other
information that the President deems necessary. Witnesses
shall be paid the same fees and mileage that are paid wit-
nesses in the courts of the United States. In the event of
contumacy or failure or refusal of any person to obey any
such subpoena, any district court of the United States in
which venue is proper shall have jurisdiction to order any
such person to comply with such subpoena. Any failure to
obey such an order of the court is punishable by the court
as a contempt thereof.
(C) EFFECT.The nonbinding preliminary allocation of
responsibility shall not be admissible as evidence in any
proceeding, and no court shall have jurisdiction to review
the nonbinding preliminary allocation of responsibility.
The nonbinding preliminary allocation of responsibility
shall not constitute an apportionment or other statement on
the divisibility of harm or causation.
(D) COSTS.The costs incurred by the President in pro-
ducing the nonbinding preliminary allocation of responsi-
bility shall be reimbursed by the potentially responsible
parties whose offer is accepted by the President. Where an
offer under this section is not accepted, such costs shall be
considered costs of response.
(E) DECISION TO REJECT OFFER.Where the President, in
his discretion, has provided a nonbinding preliminary allo-
cation of responsibility and the potentially responsible par-
ties have made a substantial offer providing for response to
the President which he rejects, the reasons for the rejection
shall be provided in a written explanation. The President's
decision to reject such an offer snail not be subject to judi-
cial review.
(4) FAILURE TO PROPOSE.If the President determines that a
good faith proposal for undertaking or financing action under
section 106 has not oeen submitted within 60 days of the provi-
sion of notice pursuant to this subsection, the President may
thereafter commence action under section 104(a) or take an
action against any person under section 106 of this Act. If the
President determines that a good faith proposal for undertaking
or financing action under section 104(b) has not been submitted
within 60 days after the provision of notice pursuant to this
subsection, the President may thereafter commence action under
section 104(b).
(5) SIGNIFICANT THREATS.Nothing in this subsection shall
limit the President's authority to undertake response or enforce-
ment action regarding a significant threat to public health or
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the environment within the negotiation period established by
this subsection.
(6) INCONSISTENT RESPONSE ACTION.When either the Presi-
dent, or a potentially responsible party pursuant to an adminis-
trative order or consent decree under this Act, has initiated a
remedial investigation and feasibility study for a particular fa-
cility under this Act, no potentially responsible party may un-
dertake any remedial action at the facility unless such remedial
action has been authorized by the President.
(f) COVENANT Nor To SUE.
(1) DISCRETIONARY COVENANTS.The President may, in his
discretion, provide any person with a covenant not to sue con-
cerning any liability to the United States under this Act, in-
cluding future liability, resulting from a release or threatened
release of a hazardous substance addressed by a remedial
action, whether that action is onsite or offsite, if each of the fol-
lowing conditions is met:
(A) The covenant not to sue is in the public interest.
(B) The covenant not to sue would expedite response
action consistent with the National Contingency Plan
under section 105 of this Act.
(C) The person is in full compliance with a consent decree
under section 106 (including a consent decree entered into
in accordance with this section) for response to the release
or threatened release concerned.
(D) The response action has been approved by the Presi-
dent.
(2) SPECIAL COVENANTS NOT TO SUE.In the case of any
person to whom the President is authorized under paragraph (1)
of this subsection to provide a covenant not to sue, for the por-
tion of remedial action
(A) which involves the transport and secure disposition
offsite of hazardous substances in a facility meeting the re-
quirements of sections 3004 (c), (d), (e), (ft (g), (m), (o), (p),
(u), and (v) and 3005(c) of the Solid Waste Disposal Act,
where the President has rejected a proposed remedial action
that is consistent with the National Contingency Plan that
does not include such offsite disposition and has thereafter
required offsite disposition; or
(B) which involves the treatment of hazardous substances
so as to destroy, eliminate, or permanently immobilize the
hazardous constituents of such substances, such that, in the
judgment of the President, the substances no longer present
any current or currently foreseeable future significant risk
to public health, welfare or the environment, no byproduct
of the treatment or destruction process presents any signifi-
cant hazard to public health, welfare or the environment,
and all byproducts are themselves treated, destroyed, or
contained in a manner which assures that such byproducts
do not present any current or currently foreseeable future
significant risk to public health, welfare or the environ-
ment,
the President shall provide such person with a covenant not to
sue with respect to future liability to the United States under
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this Act for a future release or threatened release of hazardous
substances from such facility, and a person provided such cov-
enant not to sue shall not be liable to the United States under
section 106 or 107 with respect to such release or threatened re-
lease at a future time.
(3) REQUIREMENT THAT REMEDIAL ACTION BE COMPLETED.A
covenant not to sue concerning future liability to the United
States shall not take effect until the President certifies that re-
medial action has been completed in accordance with the re-
quirements of this Act at the facility that is the subject of such
covenant.
(4) FACTORS.In assessing the appropriateness of a covenant
not to sue under paragraph (1) and any condition to be included
in a covenant not to sue under paragraph (1) or (2), the Presi-
dent shall consider whether the covenant or condition is in the
public interest on the basis of such factors as the following:
(A) The effectiveness and reliability of the remedy, in
light of the other alternative remedies considered for the fa-
cility concerned.
(B) The nature of the risks remaining at the facility.
(C) The extent to which performance standards are in-
cluded in the order or decree.
(D) The extent to which the response action provides a
complete remedy for the facility, including a reduction in
the hazardous nature of the substances at the facility.
(E) The extent to which the technology used in the re-
sponse action is demonstrated to be effective.
(F) Whether the Fund or other sources of funding would
be available for any additional remedial actions that
might eventually be necessary at the facility.
(G) Whether the remedial action will be carried out, in
whole or in significant part, by the responsible parties
themselves.
(5) SATISFACTORY PERFORMANCE.Any covenant not to sue
under this subsection shall be subject to the satisfactory per-
formance by such party of its obligations under the agreement
concerned.
(6) ADDITIONAL CONDITION FOR FUTURE LIABILITY.(A) Except
for the portion of the remedial action which is subject to a cov-
enant not to sue under paragraph (2) or under subsection (g) (re-
lating to de minimis settlements), a covenant not to sue a person
concerning future liability to the United States shall include an
exception to the covenant that allows the President to sue such
person concerning future liability resulting from the release or
threatened release that is the subject of the covenant where
such liability arises out of conditions which are unknown at
the time the President certifies under paragraph (3) that reme-
dial action has been completed at the facility concerned.
(B) In extraordinary circumstances, the President may deter-
mine, after assessment of relevant factors such as those referred
to in paragraph (4) ana volume, toxicity, mobility, strength of
evidence, ability to pay, litigative risks, public interest consider-
ations, precedential value, and inequities and aggravating fac-
tors, not to include the exception referred to in subparagraph
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(A) if other terms, conditions, or requirements of the agreement
containing the covenant not to sue are sufficient to provide all
reasonable assurances that public health and the environment
will be protected from any future releases at or from the facili-
ty-
(C) The President is authorized to include any provisions al-
lowing future enforcement action under section 106 or 107 that
in the discretion of the President are necessary and appropriate
to assure protection of public health, welfare, and the environ-
ment.
(g) DE MINIMIS SETTLEMENTS.
(1) EXPEDITED FINAL SETTLEMENT.Whenever practicable and
in the public interest, as determined by the President, the Presi-
dent shall as promptly as possible reach a final settlement with
a potentially responsible party in an administrative or civil
action under section 106 or 107 if such settlement involves only
a minor portion of the response costs at the facility concerned
and, in the judgment of the President, the conditions in either
of the following subparagraph (A) or (B) are met:
(A) Both of the following are minimal in comparison to
other hazardous substances at the facility:
(i) The amount of the hazardous substances contrib-
uted by that party to the facility.
(ii) The toxic or other hazardous effects of the sub-
stances contributed by that party to the facility.
(B) The potentially responsible party
(i) is the owner of the real property on or in which
the facility is located;
(ii) did not conduct or permit the generation, trans-
portation, storage, treatment, or disposal of any haz-
ardous substance at the facility; and
(Hi) did not contribute to the release or threat of re-
lease of a hazardous substance at the facility through
any action or omission.
This subparagraph (B) does not apply if the potentially re-
sponsible party purchased the real property with actual or
constructive knowledge that the property was used for the
generation, transportation, storage, treatment, or disposal
of any hazardous substance.
(2) COVENANT NOT TO SUE.The President may provide a cov-
enant not to sue with respect to the facility concerned to any
party who has entered into a settlement under this subsection
unless such a covenant would be inconsistent with the public
interest as determined under subsection (f).
(3) EXPEDITED AGREEMENT.The President shall reach any
such settlement or grant any such covenant not to sue as soon
as possible after the President has available the information
necessary to reach such a settlement or grant such a covenant.
(4) CONSENT DECREE OR ADMINISTRATIVE ORDER.A settle-
ment under this subsection shall be entered as a consent decree
or embodied in an administrative order setting forth the terms
of the settlement. In the case of any facility where the total re-
sponse costs exceed $500,000 (excluding interest), if the settle-
ment is embodied as an administrative order, the order may be
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issued only with the prior written approval of the Attorney Gen-
eral. If the Attorney General or his designee has not approved
or disapproved the order within 30 days of this referral, the
order snail be deemed to be approved unless the Attorney Gener-
al and the Administrator have agreed to extend the time. The
district court for the district in which the release or threatened
release occurs may enforce any such administrative order.
(5) EFFECT OF AGREEMENT.A party who has resolved its li-
ability to the United States under this subsection shall not be
liable for claims for contribution regarding matters addressed
in the settlement. Such settlement does not discharge any of the
other potentially responsible parties unless its terms so provide,
but it reduces the potential liability of the others by the amount
of the settlement.
(6) SETTLEMENTS WITH OTHER POTENTIALLY RESPONSIBLE PAR-
TIES.Nothing in this subsection shall be construed to affect
the authority of the President to reach settlements with other
potentially responsible parties under this Act.
(h) COST RECOVERY SETTLEMENT AUTHORITY.
(1) AUTHORITY TO SETTLE.The head of any department or
agency with authority to undertake a response action under this
Act pursuant to the national contingency plan may consider,
compromise, and settle a claim under section 107 for costs in-
curred by the United States Government if the claim has not
been referred to the Department of Justice for further action. In
the case of any facility where the total response costs exceed
$500,000 (excluding interest), any claim referred to in the pre-
ceding sentence may be compromised and settled only with the
prior written approval of the Attorney General.
(2) USE OF ARBITRATION.Arbitration in accordance with reg-
ulations promulgated under this subsection may be used as a
method of settling claims of the United States where the total
response costs for the facility concerned do not exceed $500,000
(excluding interest). After consultation with the Attorney Gener-
al, the department or agency head may establish and publish
regulations for the use of arbitration or settlement under this
subsection.
(3) RECOVERY OF CLAIMS.If any person fails to pay a claim
that has been settled under this subsection, the department or
agency head shall request the Attorney General to bring a civil
action in an appropriate district court to recover the amount of
such claim, plus costs, attorneys' fees, and interest from the
date of the settlement. In such an action, the terms of the settle-
ment shall not be subject to review.
(4) CLAIMS FOR CONTRIBUTION.A person who has resolved its
liability to the United States under this subsection shall not be
liable for claims for contribution regarding matters addressed
in the settlement. Such settlement shall not discharge any of
the other potentially liable persons unless its terms so provide,
but it reduces the potential liability of the others by the amount
of the settlement.
(i) SETTLEMENT PROCEDURES.
(1) PUBLICATION IN FEDERAL REGISTER.At least SO days
before any settlement (including any settlement arrived at
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through arbitration} may become final under subsection (h), or
under subsection (g) in the case of a settlement embodied in an
administrative order, the head of the department or agency
which has jurisdiction over the proposed settlement shall pub-
lish in the Federal Register notice of the proposed settlement.
The notice shall identify the facility concerned and the parties
to the proposed settlement.
(2) COMMENT PERIOD.For a 30-day period beginning on the
date of publication of notice under paragraph (1) of a proposed
settlement, the head of the department or agency which has ju-
risdiction over the proposed settlement shall provide an oppor-
tunity for persons who are not parties to the proposed settlement
to file written comments relating to the proposed settlement.
(3) CONSIDERATION OF COMMENTS.The head of the depart-
ment or agency shall consider any comments filed under para-
graph (2) in determining whether or not to consent to the pro-
posed settlement and may withdraw or withhold consent to the
proposed settlement if such comments disclose facts or consider-
ations which indicate the proposed settlement is inappropriate,
improper, or inadequate.
(j) NATURAL RESOURCES.
(1) NOTIFICATION OF TRUSTEE.Where a release or threatened
release of any hazardous substance that is the subject of negoti-
ations under this section may have resulted in damages to natu-
ral resources under the trusteeship of the United States, the
President shall notify the Federal natural resource trustee of
the negotiations and shall encourage the participation of such
trustee in the negotiations.
(2) COVENANT NOT TO SUE.An agreement under this section
may contain a covenant not to sue under section 107(aX4XC) for
damages to natural resources under the trusteeship of the
United States resulting from the release or threatened release of
hazardous substances that is the subject of the agreement, but
only if the Federal natural resource trustee has agreed in writ-
ing to such covenant. The Federal natural resource trustee may
agree to such covenant if the potentially responsible party
agrees to undertake appropriate actions necessary to protect and
restore the natural resources damaged by such release or threat-
ened release of hazardous substances.
(k) SECTION Nor APPLICABLE TO VESSELS.The provisions of this
section shall not apply to releases from a vessel.
(I) CIVIL PENALTIES.A potentially responsible party which is a
party to an administrative order or consent decree entered pursuant
to an agreement under this section or section 120 (relating to Feder-
al facilities) or which is a party to an agreement under section 120
and which fails or refuses to comply with any term or condition of
the order, decree or agreement shall be subject to a civil penalty in
accordance with section 109.
(m) APPLICABILITY OF GENERAL PRINCIPLES OF LAW.In the case
of consent decrees and other settlements under this section (includ-
ing covenants not to sue), no provision of this Act shall be construed
to preclude or otherwise affect the applicability of general principles
of law regarding the setting aside or modification of consent decrees
or other settlements.
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SEC. 123. REIMBURSEMENT TO LOCAL GOVERNMENTS.
(a) APPLICATION.Any general purpose unit of local government
for a political subdivision which is affected by a release or threat-
ened release at any facility may apply to the President for reim-
bursement under this section.
(b) REIMBURSEMENT.
(1) TEMPORARY EMERGENCY MEASURES.The President is au-
thorized to reimburse local community authorities for expenses
incurred (before or after the enactment of the Superfund
Amendments and Reauthorization Act of 1986) in carrying out
temporary emergency measures necessary to prevent or mitigate
injury to human health or the environment associated with the
release or threatened release of any hazardous substance or pol-
lutant or contaminant. Such measures may include, where ap-
propriate, security fencing to limit access, response to fires and
explosions, and other measures which require immediate re-
sponse at the local level.
(2) LOCAL FUNDS NOT SUPPLANTED.Reimbursement under
this section shall not supplant local funds normally provided
for response.
(c) AMOUNT.The amount of any reimbursement to any local au-
thority under subsection (bXD may not exceed $25,000 for a single
response. The reimbursement under this section with respect to a
single facility shall be limited to the units of local government
having jurisdiction over the political subdivision in which the facil-
ity is located.
(d) PROCEDURE.Reimbursements authorized pursuant to this sec-
tion shall be in accordance with rules promulgated by the Adminis-
trator within one year after the enactment of the Superfund Amend-
ments and Reauthorization Act of 1986.
SEC. 124. METHANE RECOVERY.
(a) IN GENERAL.In the case of a facility at which equipment for
the recovery or processing (including recirculation of condensate) of
methane has been installed, for purposes of this Act:
(1) The owner or operator of such equipment shall not be con-
sidered an "owner or operator", as defined in section 101(20),
with respect to such facility.
(2) The owner or operator of such equipment shall not be con-
sidered to have arranged for disposal or treatment of any haz-
ardous substance at such facility pursuant to section 107 of this
Act
(3) The owner or operator of such equipment shall not be sub-
ject to any action under section 106 with respect to such facility.
(b) EXCEPTIONS.Subsection (a) does not apply with respect to a
release or threatened release of a hazardous substance from a facili-
ty described in subsection (a) if either of the following circumstances
exist:
(1) The release or threatened release was primarily caused by
activities of the owner or operator of the equipment described in
subsection (a).
(2) The owner or operator of such equipment would be covered
by paragraph (1), (2), (3), or (4) of subsection (a) of section 107
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101
with respect to such release or threatened release if he were not
the owner or operator of such equipment.
In the case of any release or threatened release referred to in para-
graph (1), the owner or operator of the equipment described in sub-
section (a) shall be liable under this Act only for costs or damages
primarily caused by the activities of such owner or operator.
SEC. 125. SECTION 300l(bX3XAXi) WASTE.
(a) REVISION OF HAZARD RANKING SYSTEM.This section shall
apply only to facilities which are not included or proposed for inclu-
sion on the National Priorities List and which contain substantial
volumes of waste described in section SOOKbXSXAXi) of the Solid
Waste Disposal Act. As expeditiously as practicable, the President
shall revise the hazard ranking system in effect under the National
Contingency Plan with respect to such facilities in a manner which
assures appropriate consideration of each of the following site-spe-
cific characteristics of such facilities:
(1) The quantity, toxicity, and concentrations of hazardous
constituents which are present in such waste and a comparison
thereof with other wastes.
(2) The extent of, and potential for, release of such hazardous
constituents into the environment.
(3) The degree of risk to human health and the environment
posed by such constituents.
(b) INCLUSION PROHIBITED.Until the hazard ranking system is
revised as required by this section, the President may not include on
the National Priorities List any facility which contains substantial
volumes of waste described in section 3001(bX3XAXi) of the Solid
Waste Disposal Act on the basis of an evaluation made principally
on the volume of such waste and not on the concentrations of the
hazardous constituents of such waste. Nothing in this section shall
be construed to affect the President's authority to include any such
facility on the National Priorities List based on the presence of
other substances at such facility or to exercise any other authority of
this Act with respect to such other substances.
SEC. 126. INDIAN TRIBES,
(a) TREATMENT GENERALLY.The governing body of an Indian
tribe shall be afforded substantially the same treatment as a State
with respect to the provisions of section 103(a) (regarding notifica-
tion of releases), section 104(cX2) (regarding consultation on remedi-
al actions), section 104(e) (regarding access to information), section
104(i) (regarding health authorities) and section 105 (regarding roles
and responsibilities under the national contingency plan and sub-
mittal of priorities for remedial action, but not including the provi-
sion regarding the inclusion of at least one facility per State on the
National Priorities List).
(b) COMMUNITY RELOCATION.Should the President determine
that proper remedial action is the permanent relocation of tribal
members away from a contaminated site because it is cost effective
and necessary to protect their health and welfare, such finding
must be concurred in by the affected tribal government before relo-
cation shall occur. The President, in cooperation with the Secretary
of the Interior, shall also assure that all benefits of the relocation
program are provided to the affected tribe and that alternative land
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of equivalent value is available and satisfactory to the tribe. Any
kinds acquired for relocation of tribal members shall be held in
trust by the United States for the benefit of the tribe.
(c) STUDY.The President shall conduct a survey, in consultation
with the Indian tribes, to determine the extent of hazardous waste
sites on Indian lands. Such survey shall be included within a report
which shall make recommendations on the program needs of tribes
under this Act, with particular emphasis on how tribal participa-
tion in the administration of such programs can be maximized.
Such report shall be submitted to Congress along with the Presi-
dent 's budget request for fiscal year 1988.
(d) LIMITATION.Notwithstanding any other provision of this Act,
no action under this Act by an Indian tribe shall be barred until
the later of the following:
(1) The applicable period of limitations has expired.
(2) 2 years after the United States, in its capacity as trustee
for the tribe, gives written notice to the governing body of the
tribe that it will not present a claim or commence an action on
behalf of the tribe or fails to present a claim or commence an
action within the time limitations specified in this Act.
TITLE IIHAZARDOUS SUBSTANCE
RESPONSE REVENUE ACT OF 1980
SEC. 201. SHORT TITLE: AMENDMENT OF 1954 CODE.
(a) SHORT TITLE.This title may be cited as the "Hazardous Sub-
stance Response Revenue Act of 1980".
(b) AMENDMENT OF 1954 CODE.Except as otherwise expressly
provided, whenever in this title an amendment or repeal is ex-
pressed 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 1954.
Subtitle AImposition of Taxes on Petroleum
and Certain Chemicals
SEC. 211. IMPOSITION OF TAXES.
(a) GENERAL RULE.Subtitle D (relating to miscellaneous excise
taxes) is amended by inserting after chapter 37 the following new
chapter:
"CHAPTER 38ENVIRONMENTAL TAXES
"SUBCHAPTER A. Tax on petroleum.
"SuBCHAPTER B. Tax on certain chemicals.
"Subchapter ATax on Petroleum
"Sec. 4611. Imposition of tax.
"Sec. 4612. Definitions and special rules.
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"SEC. 4611. IMPOSITION OF TAX.
"(a) GENERAL RULE.There is hereby imposed a tax [of 0.79 cent
a barrel] at the rate specified in subsection (c) on
"(1) crude oil received at a United States refinery, and
"(2) petroleum products entered into the United States for
consumption, use, or warehousing.
"(b) TAX ON CERTAIN USES AND EXPORTATION.
"(1) IN GENERAL.If
"(A) any domestic crude oil is used in or exported from
the United States, and
"(B) before such use or exportation, no tax was imposed
on such crude oil under subsection (a),
then a tax [of 0.79 cent a barrel] at the rate specified in sub-
section (c) is hereby imposed on such crude oil.
"(2) EXCEPTION FOR USE ON PREMISES WHERE PRODUCED.
Paragraph (1) shall not apply to any use of crude oil for ex-
tracting oil or natural gas on the premises where such crude
oil was produced.
(c) RATE OF TAX.
'W IN GENERAL.Except as provided in paragraph (2), the
rate of the taxes imposed by this section is 8.2 cents a barrel.
'W IMPORTED PETROLEUM PRODUCTS.The rate of the tax
imposed by subsection (aX2) shall be 11.7 cents a barrel.
t"(c)l 'W PERSONS LIABLE FOR TAX.
'Tl) CRUDE OIL RECEIVED AT REFINERY.The tax imposed by
subsection (aXD shall be paid by the operator of the United
States refinery.
"(2) IMPORTED PETROLEUM PRODUCT.The tax imposed by sub-
section (aX2) shall be paid by the person entering the product
for consumption, use, or warehousing.
"(3) TAX ON CERTAIN USES OR EXPORTS.The tax imposed by
subsection (b) shall be paid by the person using or exporting
the crude oil, as the case may be.
["(d) TERMINATION.The taxes imposed by this section shall not
apply after September 30, 1985, except that if on September 30,
1983, or September 30, 1984
"(1) the unobligated balance in the Hazardous Substance Re-
sponse Trust Fund as of such date exceeds $900,000,000, and
"(2) the Secretary, after consultation with the Administrator
of the Environmental Protection Agency, determines that such
unobligated balance will exceed $500,000,000 on September 30
of the following year if no tax is imposed under section 4611 or
4661 during the calendar year following the date referred to
above,
then no tax shall be imposed by this section during the first calen-
dar year beginning after the date referred to in paragraph (1).]
"(e) APPLICATION OF TAXES.
(1) IN GENERAL.Except as provided in paragraphs (2) and
(3), the taxes imposed by this section shall apply after December
31, 1986, and before January 1, 1992.
"(2) NO TAX IF UNOBLIGATED BALANCE IN FUND EXCEEDS
$s,soo,ooo,ooo.If on December 31, 1989, or December 31, 1990
"(A) the unobligated balance in the Hazardous Substance
Superfund exceeds $3,500,000,000, and
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"(B) the Secretary, after consultation with the Adminis-
trator of the Environmental Protection Agency, determines
that the unobligated balance in the Hazardous Substance
Superfund will exceed $3,500,000,000 on December 31 of
1990 or 1991, respectively, if no tax is imposed under sec-
tion 59A, this section, and sections 4661 and 4671,
then no tax shall be imposed under this section during 1990 or 1991,
as the case may be.
"(3} NO TAX IF AMOUNTS COLLECTED EXCEED $6,650,000,000.
"(A) ESTIMATES BY SECRETARY.The Secretary as of the
close of each calendar quarter (and at such other times as
the Secretary determines appropriate) shall make an esti-
mate of the amount of taxes which will be collected under
section 59A, this section, and sections 4661 and 4671 and
credited to the Hazardous Substance Superfund during the
period beginning January 1, 1987, and ending December 31,
1991.
"(B) TERMINATION IF $6,650,000,000 CREDITED BEFORE JAN-
UARY i, 1992.If the Secretary estimates under subpara-
graph (A) that more than $6,650,000,000 will be credited to
the Fund before January 1, 1992, no tax shall be imposed
under this.section after the date on which (as estimated by
the Secretary) $6,650,000,000 will be so credited to the
Fund.
"SEC. 4612. DEFINITIONS AND SPECIAL RULES.
"(a) DEFINITIONS.For purposes of this subchapter
"(1) CRUDE OIL.The term 'crude oil' includes crude oil con-
densates and natural gasoline.
"(2) DOMESTIC CRUDE OIL.The term 'domestic crude oil'
means any crude oil produced from a well located in the
United States.
"(3) PETROLEUM PRODUCT.The term 'petroleum product' in-
cludes crude oil.
"(4) UNITED STATES.
"(A) IN GENERAL.The term 'United States' means the
50 States, the District of Columbia, the Commonwealth of
Puerto Rico, any possession of the United States, the Com-
monwealth of the Northern Mariana Islands, and the
Trust Territory of the Pacific Islands.
"(B) UNITED STATES INCLUDES CONTINENTAL SHELF
AREAS.The principles of section 638 shall apply for pur-
poses of the term 'United States'.
"(C) UNITED STATES INCLUDES FOREIGN TRADE ZONES.
The term 'United States' includes any foreign trade zone
of the United States.
"(5) UNITED STATES REFINERY.The term 'United States re-
finery' means any facility in the United States at which crude
oil is refined.
"(6) REFINERIES WHICH PRODUCE NATURAL GASOLINE.In the
case of any United States refinery which produces natural gas-
oline from natural gas, the gasoline so produced shall be treat-
ed as received at such refinery at the time so produced.
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"(7) PREMISES.The term 'premises' has the same meaning
as when used for purposes of determining gross income from
the property under section 613.
"(8) BARREL.The term 'barrel' means 42 United States
gallons.
"(9) FRACTIONAL PART OF BARREL.In the case of a fraction of
a barrel, the tax imposed by section 4611 shall be the same
fraction of the amount of such tax imposed on a whole barrel.
"(b) ONLY 1 TAX IMPOSED WITH RESPECT TO AMY PRODUCT.No
tax shall be imposed by section 4611 with respect to any petroleum
product if the person who would be liable for such tax establishes
that a prior tax imposed by such section has been imposed with re-
spect to such product.
"(c) CREDIT WHERE CRUDE OIL RETURNED TO PIPELINE.Under
regulations prescribed by the Secretary, if an operator of a United
States refinery
"(1) removes crude oil from a pipeline, and
(2) returns a portion of such crude oil into a stream of other
crude oil in the same pipeline,
there shall be allowed as a credit against the tax imposed by section
4611 to such operator an amount equal to the product of the rate of
tax imposed by section 4611 on the crude oil so removea by such op-
erator and the' number of barrels of crude oil returned by such oper-
ator to such pipeline. Any crude oil so returned shall be treated for
purposes of this subchapter as crude oil on which no tax has been
imposed by section 4611.
t"(c)l "(d) DISPOSITION OP REVENUES FROM PUERTO Rico AND
THE VIRGIN ISLANDS.The provisions of subsections (aX3) and (bX3)
of section 7652 shall not apply to any tax imposed! by section 4611.
"Subchapter BTax on Certain Chemicals
"Sec. 4661. Imposition of tax.
"Sec. 4662. Definitions and special rules.
"SEC. 4661. IMPOSITION OF TAX.
"(a) GENERAL RULE.There is hereby imposed a tax on any tax-
able chemical sold by the manufacturer, producer, or importer
thereof.
"(b) AMOUNT OF TAX.The amount of the tax imposed by subsec-
tion (a) shall be determined in accordance with the following table:
The tax is the following
"In the case of: amount per ton
Acetylene $4.87
Benzene 4.87
Butane 4.87
Butylene 4.87
Butadiene 4.87
Ethylene 4.87
Methane 3.44
Naphthalene 4.87
Propylene 4.87
Toluene 4.87
Xylene 4.87
Ammonia 2.64
Antimony 4.45
Antimony trioxide 3.75
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106
The tax is the following
"In the case of: amount per ton
Arsenic 4.45
Arsenic trioxide 3.41
Barium sulfide 2.30
Bromine 4.45
Cadmium 4.45
Chlorine 2.70
Chromium 4.45
Chromite 1.52
Potassium dichromate 1.69
Sodium dichromate 1.87
Cobalt 4.45
Cupric sulfate 1.87
Cupric oxide 3.59
Cuprous oxide 3.97
Hydrochloric acid 0.29
Hydrogen fluoride 4.23
Lead oxide 4.14
Mercury 4.45
Nickel 4.45
Phosphorus 4.45
Stannous chloride 2.85
Stannic chloride 2.12
Zinc chloride 2.22
Zinc sulfate 1.90
Potassium hydroxide 0.22
Sodium hydroxide 0.28
Sulfuricacid 0.26
Nitric acid 0.24
"For periods before 1992 the item relating to xylene in the preced-
ing table shall be applied by substituting '10.13 for '4.87'.
(c) TERMINATION.No tax shall be imposed under this section
during any period during which no tax is imposed under section
461 l(a).
"SEC. 4662. DEFINITIONS AND SPECIAL RULES.
"(a) DEFINITIONS.For purposes of this subchapter
"(1) TAXABLE CHEMICAL.Except as provided in subsection
(b), the term 'taxable chemical' means any substance
"(A) which is listed in the table under section 466l(b),
and
"(B) which is manufactured or produced in the United
States or entered into the United States for consumption,
use, or warehousing.
"(2) UNITED STATES.The term 'United States' has the mean-
ing given such term by section 4612(aX4).
(3) IMPORTER.The term 'importer' means the person enter-
ing the taxable chemical for consumption, use, or warehousing.
?<(4) TON.The term 'ton' means 2,000 pounds. In the case of
any taxable chemical which is a gas, the term 'ton' means the
amount of such gas in cubic feet which is the equivalent of
2,000 pounds on a molecular weight basis.
"(5) FRACTIONAL PART OF TON.In the case of a fraction of a
ton, the tax imposed by section 4661 shall be the same fraction
of the amount of such tax imposed on a whole ton.
"(b) EXCEPTIONS; OTHER SPECIAL RULES.For purposes of this
subchapter
"(1) METHANE OR BUTANE USED AS A FUEL.Under regula-
tions prescribed by the Secretary, methane or butane shall be
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treated as a taxable chemical only if it is used otherwise than
as a fuel or in the manufacture or production of any motor fuel,
diesel fuel, aviation fuel, or jet fuel2 (and, for purposes of sec-
tion 4661(a), the person so using it shall be treated as the man-
ufacturer thereof).
"(2) SUBSTANCES USED IN THE PRODUCTION OF FERTILIZER.
"(A) IN GENERAL.In the case of nitric acid, sulfuric
acid, ammonia, or methane used to produce ammonia
which is a [qualified substance,] qualified fertilizer sub-
stance 3 no tax shall be imposed under section 4661(a).
C"(B) QUALIFIED SUBSTANCE.For purposes of this sec-
tion, the term 'qualified substance' means any substance
C"(i) used in a qualified use by the manufacturer,
producer, or importer,
["(ii) sold for use by the purchaser in a qualified
use, or
["(iii) sold for resale by the purchaser to a second
Eurchaser for use by such second purchaser in a quali-
ed use.
["(C) QUALIFIED ucz.For purposes of this subsection,
the term qualified use' means any use in the manufacture
or production of a fertilizer.]
* "(B) QUALIFIED FERTILIZER SUBSTANCE.For purposes of
this section, the term 'qualified fertilizer substance' means
any substance
"(i) used in a qualified fertilizer use by the manufac-
turer, producer, or importer,
"(ii) sold for use by any purchaser in a qualified fer-
tilizer use, or
"(Hi) sold for resale by any purchaser for use, or
resale for ultimate use, in a qualified fertilizer use.
4 "(C) QUALIFIED FERTILIZER USE.The term 'qualified
fertilizer use' means any use in the manufacture or produc-
tion of fertilizer or for direct application as a fertilizer.
4 "(D) TAXATION OF NONQUALIFIED SALE OR USE.For
purposes of section 466l(a), if no tax was imposed by such
section on the sale or use of any chemical by reason of sub-
paragraph (A), the first person who sells or uses such chem-
ical other than in a sale or use described in subparagraph
(A) shall be treated as the manufacturer of such chemical. *
"(3) SULFURIC ACID PRODUCED AS A BYPRODUCT OF AIR POLLU-
TION CONTROL.In the case of sulfuric acid produced solely as a
byproduct of and on the same site as air pollution control
equipment, no tax shall be imposed under section 4661.
"(4) SUBSTANCES DERIVED FROM COAL.For purposes of this
subchapter, the term 'taxable chemical' shall not include any
substance to the extent derived from coal.
"(5) SUBSTANCES USED IN THE PRODUCTION OF MOTOR FUEL,
ETC.
1 This amendment was made by section 1019(aX3) of Public Law 98-369, the Deficit Reduction
Act of 1984.
3 This amendment was made by section 1019(bx2xA) of Public Law 98-369, the Deficit Reduc-
tion Act of 1984.
4 Added by section 1019(bXl) of Public Law 98-369, the Deficit Reduction Art.
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108
"(A) IN GENERAL.In the case of any chemical described
in subparagraph (D) which is a qualified fuel substance, no
tax shall be imposed under section ^661(a).
"(B) QUALIFIED FUEL SUBSTANCE.For purposes of this
section, the term 'qualified fuel substance means any sub-
stance
"(i) used in a qualified fuel use by the manufacturer,
producer, or importer,
"(ii) sold for use by any purchaser in a qualified fuel
use, or
"(Hi) sold for resale by any purchaser for use, or
resale for ultimate use, in a qualified fuel use.
"(C) QUALIFIED FUEL USE.For purposes of this subsec-
tion, the term 'qualified fuel use' means
"(i) any use in the manufacture or production of any
motor fuel, diesel fuel, aviation fuel, or jet fuel, or
"(ii) any use as such a fuel.
"(D) CHEMICALS TO WHICH PARAGRAPH APPLIES.For pur-
poses of this subsection, the chemicals described in this sub-
paragraph are acetylene, benzene, butylene, butadiene, eth-
ylene, naphthalene, propylene, toluene, and xylene.
"(E) TAXATION OF NONQUALIFIED SALE OR USE.For pur-
poses of section J^661(a), if no tax was imposed by such sec-
tion on the sale or use of any chemical by reason of sub-
paragraph (A), the first person who sells or uses such chem-
ical other than in a sate or use described in subparagraph
(A) shall be treated as the manufacturer of such chemical.
"(6) SUBSTANCE HAVING TRANSITORY PRESENCE DURING REFIN-
ING PROCESS, ETC.
"(A) IN GENERAL.No tax shall be imposed under section
4661(a) on any taxable chemical described in subparagraph
(B) by reason of the transitory presence of such chemical
during any process of smelting, refining, or otherwise ex-
tracting any substance not subject to tax under section
4661(a).
"(B) CHEMICALS TO WHICH SUBPARAGRAPH (A) APPLIES.
The chemicals described in this subparagraph are
"(i) barium sulfide, cupric sulfate, cupric oxide, cu-
prous oxide, lead oxide, zinc chloride, and zinc sulfate,
and
"(ii) any solution or mixture containing any chemical
described in clause (i).
"(C) REMOVAL TREATED AS USE.Nothing in subpara-
graph (A) shall be construed to apply to any chemical
which is removed from or ceases to be part of any smelting,
refining, or other extraction process.6
"(7) SPECIAL RULE FOR XYLENE.Except in the case of any
substance imported into the United States or exported from the
United States, the term "xylene' does not include any separated
isomer of xylene.
"(8) RECYCLED CHROMIUM, COBALT, AND NICKEL.
Paragraphs (5) and (6) were added by section 1019(aXl) of Public Law 98-369, the Deficit
Reduction Act of 1984.
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"(A) IN GENERAL.No tax shall be imposed under section
4661(a) on any chromium, cobalt, or nickel which is divert-
ed or recovered in the United States from any solid waste
as part of a recycling process (and not as part of the origi-
nal manufacturing or production process).
"(B) EXEMPTION NOT TO APPLY WHILE CORRECTIVE ACTION
UNCOMPLETED.Subparagraph (A) shall not apply during
any period tht required corrective action by the taxpayer at
the unit at which the recycling occurs is uncompleted.
"(C) REQUIRED CORRECTIVE ACTION.For purposes of sub-
paragraph (B), required corrective action shall be treated as
uncompleted during the period
"(i) beginning on the date that the corrective action
is required by the Administrator or an authorized
State pursuant to
"(I) a final permit under section 3005 of the
Solid Waste Disposal Act or a final order under
section 3004 or 3008 of such Act, or
"(II) a final order under section 106 of the Com-
prehensive Environmental Response, Compensa-
tion, and Liability Act of 1980, and
"(ii) ending on the date the Administrator or such
State (as the case may be) certifies to the Secretary that
such corrective action has been completed.
"(D) SPECIAL RULE FOR GROUNDWATER TREATMENT.In
the case of corrective action requiring groundwater treat-
ment, such action shall be treated as completed as of the
close of the 10-year period beginning on the date such
action is required if such treatment complies with the
permit or order applicable under subparagraph (CXi)
throughout such period. The preceding sentence shall cease
to apply beginning on the date such treatment ceases to
comply with such permit or order.
"(E) SOLID WASTE.For purposes of this paragraph, the
term 'solid waste' has the meaning given such term by sec-
tion 1004 of the Solid Waste Disposal Act, except that such
term shall not include any byproduct, coproduct, or other
waste from any process of smelting, refining, or otherwise
extracting any metal.
"(9) SUBSTANCES USED IN THE PRODUCTION OF ANIMAL FEE.
"(A) IN GENERAL.In the case of
"(i) nitric acid,
"(ii) sulfuric acid,
"(iii) ammonia, or
(iv) methane used to produce ammonia,
which is a qualified animal feed substance, no tax shall be im-
posed under section 466l(a).
"(B) QUALIFIED ANIMAL FEED SUBSTANCE.For purposes
of this section, the term 'qualified animal feed substance'
means any substance
"(i) used in a qualified animal feed use by the manu-
facturer, producer, or importer,
"(ii) sold for use by any purchaser in a qualified
animal feed use, or
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"(Hi) sold for resale by any purchaser for use, or
resale for ultimate use, in a qualified animal feed use.
"(C) QUALIFIED ANIMAL FEED USE.The term 'qualified
animal feed use' means any use in the manufacture or pro-
duction of animal feed or animal feed supplements, or of
ingredients used in animal feed or animal feed supple-
ments.
"(D) TAXATION OF NONQUALFIED SALE OR USE.For pur-
poses of section 466l(a), if no tax was imposed by such sec-
tion on the sale or use of any chemical by reason of sub-
paragraph (A), the 1st person who sells or uses such chemi-
cal other than in a sale or use described in subparagraph
(A) shall be treated as the manufacturer of such chemical.
"(10) HYDROCARBON STREAMS CONTAINING MIXTURES OF OR-
GANIC TAXABLE CHEMICALS.
"(A) IN GENERAL.No tax shall be imposed under section
4661(a) on any organic taxable chemical while such chemi-
cal is part of an intermediate hydrocarbon stream contain-
ing a mixture of organic taxable chemicals.
"(B) REMOVAL, ETC., TREATED AS USE.For purposes of
this part, if any organic taxable chemical on which no tax
was imposed by reason of subparagraph (A) is isolated, ex-
tracted, or otherwise removed from, or ceases to be part of,
an intermediate hydrocarbon stream
"(i) such isolation, extraction, removal, or cessation
shall be treated as use by the person causing such
event, and
"(ii) such person shall be treated as the manufactur-
er of such chemical.
"(C) REGISTRATION REQUIREMENT.Subparagraph (A)
shall not apply to any sale of any intermediate hydrocarbon
stream unless the registration requirements of clauses (i)
and (ii) of subsection (cX2XB) are satisfied.
"(D) ORGANIC TAXABLE CHEMICAL.For purposes of this
paragraph, the term 'organic taxable chemical' means any
taxable chemical which is an organic substance.
C"(c) USE BY MANUFACTURER, ETC., CONSIDERED SALE.[If] «
Except as provided in subsection (b), if* any person manufactures,
produces, or imports a taxable chemical and uses such chemical,
then such person shall be liable for tax under section 4661 in the
same manner as if such chemical were sold by such person.]
"(c) USE AND CERTAIN EXCHANGES BY MANUFACTURER, ETC.
"(1) USE TREATED AS SALE.Except as provided in subsections
(b) and (e), if any person manufactures, produces, or imports any
taxable chemical and uses such chemical, then such person
shall be liable for tax under section 4661 in the same manner
as if such chemical were sold by such person.
(2) SPECIAL RULES FOR INVENTORY EXCHANGES.
"(A) IN GENERAL.Except as provided in this paragraph,
in any case in which a manufacturer, producer, or importer
Thia amendment was made by section 1019(c) of Public Law 98-369, the Deficit Reduction
Act of 1984.
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Ill
of a taxable chemical exchanges such chemical as part of
an inventory exchange with another person
'W such exchange shall not be treated as a sale, and
"(ii) such other person shall, for purposes of section
4661, be treated as the manufacturer, producer, or im-
porter of such chemical.
"(W REGISTRATION REQUIREMENT.Subparagraph (A)
shall not apply to any inventory exchange unless
'W both parties are registered with the Secretary as
manufacturers, producers, or importers of taxable
chemicals, and
"(ii} the person receiving the taxable chemical has, at
such time as the Secretary may prescribe, notified the
manufacturer, producer, or importer of such person's
registration number and the internal revenue district
in which such person is registered.
"(C) INVENTORY EXCHANGE.For purposes of this para-
graph, the term 'inventory exchange' means any exchange
in which 2 persons exchange property which is, in the
hands of each person, property described in section 1221(1).
"(d) REFUND OR CREDIT FOR CERTAIN USES.
"(1) IN GENERAL.Under regulations prescribed by the Secre-
tary, if
"(A) a tax under section 4661 was paid with respect to
any taxable chemical, and
"(B) such chemical was used by any person in the manu-
facture or production of any other substance [the sale of
which by such person would be taxable under such sec-
tion,] which is a taxable chemical,
then an amount equal to the tax so paid shall be allowed as a
credit or refund (without interest) to such person in the same
manner as if it were an overpayment of tax imposed by such
section. In any case to which this paragraph applies, the
amount of any such credit or refund shall not exceed the
amount of tax [imposed by such section on the other sub-
stance manufactured or produced.] imposed by such section on
the other substance manufactured or produced (or which would
have been imposed by such section on such other substance but
not for subsection (b) or (e) of this section).
"(2) USE AS FERTILIZER.Under regulations prescribed by the
Secretary, if
"(A) a tax under section 4661 was paid with respect to
nitric acid, sulfuric acid, ammonia, or methane used to
make ammonia without regard to subsection (bX2), and
["(B) any person uses such substance, or sells such sub-
stance for use, as a qualified substance,] 7
"(B) any person uses such substance as a qualified fertil-
izer, 7
then an amount equal to the excess of the tax so paid over the
tax determined with regard to subsection (bX2) shall be allowed
as a credit or refund (without interest) to such person in the
' Thia amendment waa made by section 1019(bX2)(B) of Public Law 98-369, the Deficit Reduction
Act of 1984.
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same manner as if it were an overpayment of tax imposed by
this section.
8 "(3) USE AS QUALIFIED FUEL.Under regulations prescribed
by the Secretary, if
"(A) a tax under section 4661 was paid with respect to
any chemical described in subparagraph (D) of subsection
(bX5) without regard to subsection (b)(5), and
"(B) any person uses such chemical as a qualified fuel
substance,
then an amount equal to the excess of the tax so paid over the
tax determined with regard to subsection (bX2) shall be allowed
as a credit or refund (without interest) to such person in the
same manner as if it were an overpayment of tax imposed by
this section.
"(4) USE IN THE PRODUCTION OF ANIMAL FEED.Under regula-
tions prescribed by the Secretary, if
"(A) a tax under section 4661 was paid with respect to
nitric acid, sulfuric acid, ammonia, or methane used to
produce ammonia, without regard to subsection (bX9), and
"(B} any person uses such substance as a qualified
animal feed substance,
then an amount equal to the excess of the tax so paid over the
tax determined with regard to subsection (bX9) shall be allowed
as a credit or refund (without interest) to such person in the
same manner as if it were an overpayment of tax imposed by
this section.
"(e) EXEMPTION FOR EXPORTS OF TAXABLE CHEMICALS.
"(1) TAX-FREE SALES.
"(A) IN GENERAL.No tax shall be imposed under section
4661 on the sale by the manufacturer or producer of any
taxable chemical for export, or for resale by the purchaser
to a second purchaser for export.
"(B) PROOF OF EXPORT REQUIRED.Rules similar to the
rules of section 4221(b) shall appy for purposes of subpara-
graph (A).
"(z) CREDIT OR REFUND WHERE TAX PAID.
"(A) IN GENERAL.Except as provided in subparagraph
(B), if
"(i) tax under section 4661 was paid with respect to
any taxable chemical, and
"(UXI) such chemical was exported by any person, or
(II) such chemical was used as a material in the
manufacture or production of a substance which was
exported by any person and which, at the time of
export, was a taxable substance (as defined in section
4672(a)),
credit or refund (without interest) of such tax shall be al-
lowed or made to the person who paid such tax.
"(B} CONDITION TO ALLOWANCE.No credit or refund
shall be allowed or made under subparagraph (A) unless
the person who paid the tax establishes that he
1 Paragraph (3) ia an amendment made by section 1019(aX2) of Public Law 98-369, the Deficit
Reduction Act of 1984.
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"(i) has repaid or agreed to repay the amount of the
tax to the person who exported the taxable chemical or
taxable substance (as so defined}, or
"(ii) has obtained the written consent of such export-
er to the allowance of the credit or the making of the
refund,
"(3) REGULATIONS.The Secretary shall prescribe such regu-
lations as may be necessary to carry out the purposes of this
subsection.
C"(e)J "(/) DISPOSITION OF REVENUES FROM PUERTO Rico AND THE
VIRGIN ISLANDS.The provisions of subsections (a)(3) and (bX3) of
section 7652 shall not apply to any tax imposed by section 4661.".
(b) CLERICAL AMENDMENT.The table of chapters for subtitle D is
amended by inserting after the item relating to chapter 37 the fol-
lowing new item:
"CHAPTER 38. Environmental taxes.".
(c) EFFECTIVE DATE.The amendments made by this section shall
take effect on April 1, 1981.
[Subtitle B 9Establishment of Hazardous
Substance Response Trust Fund
[SEC. 221. ESTABLISHMENT OF HAZARDOUS SUBSTANCE RESPONSE
TRUST FUND.
[(a) CREATION OF TRUST FUND.There is established in the
Treasury of the United States a trust fund to be known as the
["Hazardous Substance Response Trust Fund"] "Hazardous Sub-
stances Superfund"10 (hereinafter in this subtitle referred to as
the "Response Trust Fund"), consisting of such amounts as may be
appropriated or transferred to such Trust Fund as provided in this
section.
[(b) TRANSFERS TO RESPONSE TRUST FUND.
[(1) AMOUNTS EQUIVALENT TO CERTAIN TAXES, ETC.There
are hereby appropriated, out of any money in the Treasury not
otherwise appropriated, to the Response Trust Fund amounts
determined by the Secretary of the Treasury (hereinafter in
this subtitle referred to as the "Secretary") to be equivalent
to
[(A) the amounts received in the Treasury under section
4611 or 4661 of the Internal Revenue Code of 1954,
[(B) the amounts recovered on behalf of the Response
Trust Fund under this Act,
5(C) all moneys recovered or collected under section
frX6XB) of the Clean Water Act,
[(D) penalties assessed under title I of this Act, and
[(E) punitive damages under section 107(cX8) of this Act.
[(2) AUTHORIZATION FOR APPROPRIATIONS.There is author-
ized to be appropriated to the Emergency Response Trust Fund
for fiscal year
Section 517(c) of Public Law 99-499 repeals this subtitle.
10 This amendment was made by section 204 of Public Law 99-499.
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[(A) 1981, $44,000,000,
!(B) 1982, $44,000,000,
:(C) 1983, $44,000,000,
S(D) 1984, $44,000,000, and
[(E) 1985, $44,000,000, plus an amount equal to so much
of the aggregate amount authorized to be appropriated
under subparagraphs (A), (B), (C), and (D) as has not been
appropriated before October 1, 1984.
[(3) TRANSFER OF FUNDS.There shall be transferred to the
Response Trust Fund
[(A) one-half of the unobligated balance remaining
before the date of the enactment of this Act under the
Fund in section 311 of the Clean Water Act, and
[(B) the amounts appropriated under section 504(b) of
the Clean Water Act during any fiscal year.
[(c) EXPENDITURES FROM RESPONSE TRUST FUND.
[(1) IN GENERAL.Amounts in the Response Trust Fund
shall be available in connection with releases or threats of re-
leases of hazardous substances into the environment only for
purposes of making expenditures which are described in sec-
tion 111 (other than subsection (j) thereof) of this Act, as in
effect on the date of the enactment of this Act, including
[(A) response costs,
f(B) claims asserted and compensable but unsatisfied
under section 311 of the Clean Water Act,
[(C) claims for injury to, or destruction or loss of, natu-
ral resources, and
[(D) related costs described in section lll(c) of this Act.
[(2) LIMITATIONS ON EXPENDITURES.At least 85 percent of
the amounts appropriated to the Response Trust Fund under
subsection (b) (IXA) and (2) shall be reserved
[(A) for the purposes specified in paragraphs (1), (2), and
(4) of section lll(a) of this Act, and
[(B) for the repayment of advances made under section
223(c), other than advances subject to the limitation of sec-
tion 223(cX2XO.
[(c) EXPENDITURES FROM TRUST FUND.Amounts in the Hazard-
ous Substances Superfund established under subchapter A of chap-
ter 98 of the Internal Revenue Code of 1954 shall be available for
expenditure only as provided in section 111 of this Act. * *
[SEC. 222. LIABILITY OF UNITED STATES LIMITED TO AMOUNT IN TRUST
FUND.
[(a) GENERAL RULE.Any claim filed against the Response Trust
Fund may be paid only out of such Trust Fund. Nothing in this Act
(or in any amendment made by this Act) shall authorize the pay-
ment by the United States Government of any additional amount
with respect to any such claim out of any source other than the
Response-Trust Fund.
[(b) ORDER IN WHICH UNPAID CLAIMS ARE To BE PAID.If at any
time the Response Trust Fund is unable (by reason of subsection (a)
or the limitation of section 221(cX2)) to pay all of the claims pay-
1»Section 204(b) of Public Law 99-499.
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able out of such Trust Fund at such time, such claims shall, to the
extent permitted under subsection (a), be paid in full in the order
in which they were finally determined.
[SEC. 223. ADMINISTRATIVE PROVISIONS.
[(a) METHOD OF TRANSFER.The amounts appropriated by sec-
tion 221(bXD shall be transferred at least monthly from the general
fund of the Treasury to the Response Trust Fund on the basis of
estimates made by the Secretary of the amounts referred to in such
section. Proper adjustments shall be made in the amount subse-
quently transferred to the extent prior estimates were in excess of
or less than the amounts required to be transferred.
[(b) MANAGEMENT OF TRUST FUND.
C(l) REPORT.The Secretary shall be the trustee of the Re-
sponse Trust Fund, and shall report to the Congress for each
fiscal year ending on or after September 30, 1981, on the finan-
cial condition and the results of the operations of such Trust
Fund during such fiscal year and on its expected condition and
operations during the next 5 fiscal years. Such report shall be
printed as a House document of the session of the Congress to
which the report is made.
[(2) INVESTMENT.It shall be the duty of the Secretary to
invest such portion of such Trust Fund as is not, in his judg-
ment, required to meet current withdrawals. Such investments
shall be in public debt securities with maturities suitable for
the needs of such Trust Fund and bearing interest at rates de-
termined by the Secretary, taking into consideration current
market yields on outstanding marketable obligations of the
United States of comparable maturities. The income on such
investments shall be credited to and form a part of such Trust
Fund.
£(c) AUTHORITY To BORROW.
[(1) IN GENERAL.There are authorized to be appropriated
to the Response Trust Fund, as repayable advances, such sums
as may be necessary to carry out the purposes of such Trust
Fund.
[(2) LIMITATIONS ON ADVANCES TO RESPONSE TRUST FUND.
[(A) AGGREGATE ADVANCES.The maximum aggregate
amount of repayable advances to the Response Trust Fund
which is outstanding at any one time shall not exceed an
amount which the Secretary estimates will be equal to the
sum of the amounts which will be appropriated or trans-
ferred to such Trust Fund under paragraph (1XA) of sec-
tion 221(b) of this Act for the following 12 months, and
[(B) ADVANCES FOR PAYMENT OF RESPONSE COSTS.No
amount may be advanced after March 31, 1983, to the Re-
sponse Trust Fund for the purpose of paying response costs
described in section lll(a) (1), (2), or (4), unless such costs
are incurred incident to any spill the effects of which the
Secretary determines to be catastrophic.
[(C) ADVANCES FOR OTHER COSTS.The maiximum aggre-
gate amount advanced to the Response Trust Fund which
is outstanding at any one time for the purpose of paying
costs other than costs described in section lll(a) (1), (2), or
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(4) shall not exceed one-third of the amount of the esti-
mate made under subparagraph (A).
[(D) FINAL REPAYMENT.No advance shall be made to
the Response Trust Fund after September 30, 1985, and all
advances to such Fund shall be repaid on or before such
date.
[(3) REPAYMENT OF ADVANCES.Advances made pursuant to
this subsection shall be repaid, and interest on such advances
shall be paid, to the general fund of the Treasury when the
Secretary determines that moneys are available for such pur-
poses in the Trust Fund to which the advance was made. Such
interest shall be at rates computed in the same manner as pro-
vided in subsection (b) and shall be compounded annually.]
Subtitle CPost-Closure Tax and Trust Fund
SEC. 231. IMPOSITION OF TAX.
(a) IN GENERAL.Chapter 38, as added by section 211, is amend-
ed by adding at the end thereof the following new subchapter:
"Subchapter CTax on Hazardous Wastes
"Sec. 4681. Imposition of tax.
"Sec. 4682. Definitions and special rules.
"SEC. 4681. IMPOSITION OF TAX.
"(a) GENERAL RULE.There is hereby imposed a tax on the re-
ceipt of hazardous waste at a qualified hazardous waste disposal fa-
cility.
"(b) AMOUNT OF TAX.The amount of the tax imposed by subsec-
tion (a) shall be equal to $2.13 per dry weight ton of hazardous
waste.
"SEC. 4682. DEFINITIONS AND SPECIAL RULES.
"(a) DEFINITIONS.For purposes of this subchapter
"(1) HAZARDOUS WASTE.The term 'hazardous waste' means
any waste
"(A) having the characteristics identified under section
3001 of the Solid Waste Disposal Act, as in effect on the
date of the enactment of this Act (other than waste the
regulation of which under such Act has been suspended by
Act of Congress on that date), or
"(B) subject to the reporting or recordkeeping require-
ments of sections 3002 and 3004 of such Act, as so in effect.
"(2) QUALIFIED HAZARDOUS WASTE DISPOSAL FACILITY.The
term 'qualified hazardous waste disposal facility' means any fa-
cility which has received a permit or is accorded interim status
under section 3005 of the Solid Waste Disposal Act.
"(b) TAX IMPOSED ON OWNER OR OPERATOR.The tax imposed by
section 4681 shall be imposed on the owner or operator of the quali-
fied hazardous waste disposal facility.
"(c) TAX Nor To APPLY TO CERTAIN WASTES.The tax imposed by
section 4681 shall not apply to any hazardous waste which will not
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remain at the qualified hazardous waste disposal facility after the
facility is closed.
"(d) APPLICABILITY OF SECTION.The tax imposed by section 4681
shall apply to the receipt of hazardous waste after September 30,
1983, except that if, as of September 30 of any subsequent calendar
year, the unobligated balance of the Post-closure Liability Trust
Fund exceeds $200,000,000, no tax shall be imposed under such sec-
tion during the following calendar year.".
(b) CONFORMING AMENDMENT.The table of subchapters for
chapter 38 is amended by adding at the end thereof the following
new item:
"Subchapter CTax on Hazardous Wastes.".
SEC. 232. POST-CLOSURE LIABILITY TRUST FUND.
(a) CREATION OF TRUST FUND.There is established in the Treas-
ury of the United States a trust fund to be known as the "Post-
closure Liability Trust Fund", consisting of such amounts as may
be appropriated, credited, or transferred to such Trust Fund.
(b) EXPENDITURES FROM POST-CLOSURE LIABILITY TRUST FUND.
Amounts in the Post-closure Liability Trust Fund shall be available
only for the purposes described in sections 107(k) and lll(j) of this
Act (as in effect on the date of the enactment of this Act).
(c) ADMINISTRATIVE PROVISIONS.The provisions of sections 222
and 223 of this Act shall apply with respect to the Trust Fund es-
tablished under this section, except that the amount of any repay-
able advances outstanding at any one time shall not exceed
$200,000,000.
TITLE IIIMISCELLANEOUS PROVISIONS
REPORTS AND STUDIES
SEC. 301. (aXD The President shall submit to the Congress,
within four years after enactment of this Act, a comprehensive
report on experience with the implementation of this Act, includ-
ing, but not limited to
(A) the extent to which the Act and Fund are effective in en-
abling Government to respond to and mitigate the effects of re-
leases of hazardous substances;
(B) a summary of past receipts and disbursements from the
Fund;
(C) a projection of any future funding needs remaining after
the expiration of authority to collect taxes, and of the threat to
public health, welfare, and the environment posed by the pro-
jected releases which create any such needs;
(D) the record and experience of the Fund in recovering
Fund disbursements from liable parties;
(E) the record of State participation in the system of re-
sponse, liability, and compensation established by this Act;
(F) the impact of the taxes imposed by title II of this Act on
the Nation's balance of trade with other countries;
(G) an assessment of the feasibility and desirability of a
schedule of taxes which would take into account one or more
of the following: the likelihood of a release of a hazardous sub-
stance, the degree of hazard and risk of harm to public health,
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welfare, and the environment resulting from any such release,
incentives to proper handling, recycling, incineration, and neu-
tralization of hazardous wastes, and disincentives to improper
or illegal handling or disposal of hazardous materials, adminis-
trative and reporting burdens on Government and industry,
and the extent to which the tax burden falls on the substances
and parties which create the problems addressed by this Act.
In preparing the report, the President shall consult with ap-
propriate Federal, State, and local agencies, affected industries
and claimants, and such other interested parties as he may
find useful. Based upon the analyses and consultation required
by this subsection, the President shall also include in the
report any recommendations for legislative changes he may
deem necessary for the better effectuation of the purposes of
this Act, including but not limited to recommendations con-
cerning authorization levels, taxes, State participation, liability
and liability limits, and financial responsibility provisions for
the Response Trust Fund and the Post-closure Liability Trust
Fund;
(H) an exemption from or an increase in the substances or
the amount of taxes imposed by section 4661 of the Internal
Revenue Code of 1954 for copper, lead, and zinc oxide, and for
feedstocks when used in the manufacture and production of
fertilizers, based upon the expenditure experience of the Re-
sponse Trust Fund;
(I) the economic impact of taxing coal-derived substances and
recycled metals.
(2) The Administrator of the Environmental Protection Agency
(in consultation with the Secretary of the Treasury) shall submit to
the Congress (i) within four years after enactment of this Act, a
report identifying additional wastes designated by rule as hazard-
ous after the effective date of this Act and pursuant to section 3001
of the Solid Waste Disposal Act and recommendations on appropri-
ate tax rates for such wastes for the Post-closure Liability Trust
Fund. The report shall, in addition, recommend a tax rate, consid-
ering the quantity and potential danger to human health and the
environment posed by the disposal of any wastes which the Admin-
istrator, pursuant to subsection 3001(bX2XB) and subsection
3001(bX3XA) of the Solid Waste Disposal Act of 1980, has deter-
mined should be subject to regulation under subtitle C of such Act,
(ii) within three years after enactment of this Act, a report on the
necessity for and the adequacy of the revenue raised, in relation to
estimated future requirements, of the Post-closure Liability Trust
Fund.
(b) The President shall conduct a study to determine (1) whether
adequate private insurance protection is available on reasonable
terms and conditions to the owners and operators of vessels and fa-
cilities subject to liability under section 107 of this Act, and (2)
whether the market for such insurance is sufficiently competitive
to assure purchasers of features such as a reasonable range of de-
ductibles, coinsurance provisions, and exclusions. The President
shall submit the results of his study, together with his recommen-
dations, within two years of the date of enactment of this Act, and
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shall submit an interim report on his study within one year of the
date of enactment of this Act.
(cXD The President, acting through Federal officials designated
by the National Contingency Plan published under section 105 of
this Act, shall study and, not later than two years after the enact-
ment of this Act, shall promulgate regulations for the assessment
of damages for injury to, destruction of, or loss of natural resources
resulting from a release of oil or a hazardous substance for the pur-
poses of this Act and section 311(f) (4) and (5) of the Federal Water
Pollution Control Act. Notwithstanding the failure of the President
to promulgate the regulations required under this subsection on the
required date, the President shall promulgate such regulations not
later than 6 months after the enactment of the Superfund Amend-
ments and Reauthorization Act of 1986.
(2) Such regulations shall specify (A) standard procedures for
simplified assessments requiring minimal field observation, includ-
ing establishing measures of damages based on units of discharge
or release or units of affected area, and (B) alternative protocols for
conducting assessments in individual cases to determine the type
and extent of short- and long-term injury, destruction, or loss. Such
regulations shall identify the best available procedures to deter-
mine such damages, including both direct and indirect injury, de-
struction, or loss and shall take into consideration factors includ-
ing, but not limited to, replacement value, use value, and ability of
the ecosystem or resource to recover.
(3) Such regulations shall be reviewed and revised as appropriate
every two years.
(d) The Administrator of the Environmental Protection Agency
shall, in consultation with other Federal agencies and appropriate
representatives of State and local governments and nongovernmen-
tal agencies, conduct a study and report to the Congress within two
years of the date of enactment of this Act on the issues, alterna-
tives, and policy considerations involved in the selection of loca-
tions for hazardous waste treatment, storage, and disposal facili-
ties. This study shall include
(A) an assessment of current and projected treatment, stor-
age, and disposal capacity needs and shortfalls! for hazardous
waste by management category on a State-by-State basis;
(B) an evaluation of the appropriateness of a regional ap-
proach to siting and designing hazardous waste management
facilities and the identification of hazardous waste manage-
ment regions, interstate or intrastate, or both, with similar
hazardous waste management needs;
(C) solicitation and analysis of proposals for the construction
and operation of hazardous waste management facilities by
nongovernmental entities, except that no proposal solicited
under terms of this subsection shall be analyzed if it involves
cost to the United States Government or fails to comply with
the requirements of subtitle C of the Solid Waste Disposal Act
and other applicable provisions of law;
(D) recommendations on the appropriate balance between
public and private sector involvement in the siting, design, and
operation of new hazardous waste management facilities;
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(E) documentation of the major reasons for public opposition
to new hazardous waste management facilities; and
(F) an evaluation of the various options for overcoming ob-
stacles to siting new facilities, including needed legislation for
implementing the most suitable option or options.
(eXD In order to determine the adequacy of existing common law
and statutory remedies in providing legal redress for harm to man
and the environment caused by the release of hazardous substances
into the environment, there shall be submitted to the Congress a
study within twelve months of enactment of this Act.
(2) This study shall be conducted with the assistance of the
American Bar Association, the American Law Institute, the Asso-
ciation of American Trial Lawyers, and the National Association of
State Attorneys General with the President of each entity selecting
three members from each organization to conduct the study. The
study chairman and one reporter shall be elected from among the
twelve members of the study group.
(3) As part of their review of the adequacy of existing common
law and statutory remedies, the study group shall evaluate the fol-
lowing:
(A) the nature, adequacy, and availability of existing reme-
dies under present law in compensating for harm to man from
the release of hazardous substances;
(B) the nature of barriers to recovery (particularly with re-
spect to burdens of going forward and of proof and relevancy)
and the role such barriers play in the legal system;
(C) the scope of the evidentiary burdens placed on the plain-
tiff in proving harm from the release of hazardous substances,
particularly in light of the scientific uncertainty over causa-
tion with respect to
(i) carcinogens, mutagens, and teratogens, and
(ii) the human health effects of exposure to low doses of
hazardous substances over long periods of time;
(D) the nature and adequacy of existing remedies under
present law in providing compensation for damages to natural
resources from the release of hazardous substances;
(E) the scope of liability under existing law and the conse-
quences, particularly with respect to obtaining insurance, of
any changes in such liability;
(F) barriers to recovery posed by existing statutes of limita-
tions.
(4) The report shall be submitted to the Congress with appropri-
ate recommendations. Such recommendations shall explicitly ad-
dress
(A) the need for revisions in existing statutory or common
law, and
(B) whether such revisions should take the form of Federal
statutes or the development of a model code which is recom-
mended for adoption by the States.
(5) The Fund shall pay administrative expenses incurred for the
study. No expenses shall be available to pay compensation, except
expenses on a per diem basis for the one reporter, but in no case
shall the total expenses of the study exceed $300,000.
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(f) The President, acting through the Administrator of the Envi-
ronmental Protection Agency, the Secretary of Transportation, the
Administrator of the Occupational Safety and Headth Administra-
tion, and the Director of the National Institute for Occupational
Safety and Health shall study and, not later than two years after
the enactment of this Act, shall modify the national contingency
plan to provide for the protection of the health and safety of em-
ployees involved in response actions.
(g) INSURABILITY STUDY.
(1) STUDY BY COMPTROLLER GENERAL.The Comptroller Gen-
eral of the United States, in consultation with the persons de-
scribed in paragraph (2), shall undertake a study to determine
the insurability, and effects on the standard of care, of the li-
ability of each of the following:
(A) Persons who generate hazardous substances: liability
for costs and damages under this Act.
(B) Persons who own or operate facilities: liability for
costs and damages under this Act.
(C) Persons liable for injury to persons or property caused
by the release of hazardous substances into the environ-
ment.
(2) CONSULTATION.In conducting the study under this sub-
section, the Comptroller General shall consult with the follow-
ing:
(A) Representatives of the Administrator.
(B) Representatives of persons described in subparagraphs
(A) through (C) of the preceding paragraph.
(C) Representatives (i) of groups or organizations com-
prised generally of persons adversely affected by releases or
threatened releases of hazardous substances and (ii) of
groups organized for protecting the interests of consumers.
(D) Representatives of property and casualty insurers.
(E) Representatives of reinsurers.
(F) Persons responsible for the regulation of insurance at
the State level.
(3) ITEMS EVALUATED.The study under this section shall in-
clude, among other matters, an evaluation of the following:
(A) Current economic conditions in, and the future out-
look for, the commercial market for insurance and reinsur-
ance.
(B) Current trends in statutory and common law reme-
dies.
(C) The impact of possible changes in traditional stand-
ards of liability, proof, evidence, and damages on existing
statutory and common law remedies.
(D) The effect of the standard of liability and extent of
the persons upon whom it is imposed under this Act on the
protection of human health and the environment and on
the availability, underwriting, and pricing of insurance
coverage.
(E) Current trends, if any, in the judicial interpretation
and construction of applicable insurance contracts, together
with the degree to which amendments in the language of
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such contracts and the description of the risks assumed,
could affect such trends.
(F) The frequency and severity of a representative sample
of claims closed during the calendar year immediately pre-
ceding the enactment of this subsection.
(G) Impediments to the acquisition of insurance or other
means of obtaining liability coverage other than those re-
ferred to in the preceding subparagraphs.
(H) The effects of the standards of liability and financial
responsibility requirements imposed pursuant to this Act on
the cost of, and incentives for, developing and demonstrat-
ing alternative and innovative treatment technologies, as
well as waste generation minimization.
(4) SUBMISSION.The Comptroller General shall submit a
report on the results of the study to Congress with appropriate
recommendations within 12 months after the enactment of this
subsection.
(h) REPORT AND OVERSIGHT REQUIREMENTS.
(1) ANNUAL REPORT BY EPA.On January 1 of each year the
Administrator of the Environmental Protection Agency shall
submit an annual report to Congress of such Agency on the
progress achieved in implementing this Act during the preced-
ing fiscal year. In addition such report shall specifically in-
clude each of the following:
(A) A detailed description of each feasibility study car-
ried out at a facility under title I of this Act.
(B) The status and estimated date of completion of each
such study.
(C) Notice of each such study which will not meet a pre-
viously published schedule for completion and the new esti-
mated date for completion.
(D) An evaluation of newly developed feasible and
achievable permanent treatment technologies.
(E) Progress made in reducing the number of facilities
subject to review under section 121(c).
(F) A report on the status of all remedial and enforce-
ment actions undertaken during the prior fiscal year, in-
cluding a comparison to remedial ana enforcement actions
undertaken in prior fiscal years.
(G) An estimate of the amount of resources, including the
number of work years or personnel, which would be neces-
sary for each department, agency, or instrumentality which
is carrying out any activities of this Act to complete the im-
plementation of all duties vested in the department, agency,
or instrumentality under this Act.
(2) REVIEW BY INSPECTOR GENERAL.Consistent with the au-
thorities of the Inspector General Act of 1978 the Inspector Gen-
eral of the Environmental Protection Agency shall review any
report submitted under paragraph (1) related to EPA's activities
for reasonableness and accuracy and submit to Congress, as a
part of such report a report on the results of such review.
(3) CONGRESSIONAL OVERSIGHT.After receiving the reports
under paragraphs (1) and (2) of this subsection in any calendar
year, the appropriate authorizing committees of Congress shall
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conduct oversight hearings to ensure that this Act is being im-
plemented according to the purposes of this Act and congres-
sional intent in enacting this Act.
EFFECTIVE DATES, SAVINGS PROVISION
SEC. 302. (a) Unless otherwise provided, all provisions of this Act
shall be effective on the date of enactment of this Act.
(b) Any regulation issued pursuant to any provisions of section
311 of the Clean Water Act which is repealed or superseded by this
Act and which is in effect on the date immediately preceding the
effective date of this Act shall be deemed to be a regulation issued
pursuant to the authority of this Act and shall remain in full force
and effect unless or until superseded by new regulations issued
thereunder.
(c) Any regulation
(1) respecting financial responsibility,
(2) issued pursuant to any provision of law repealed or super-
seded by this Act, and
(3) in effect on the date immediately preceding the effective
date of this Act shall be deemed to be a regulation, issued pur-
suant to the authority of this Act and shall remain in full force
and effect unless or until superseded by new regulations issued
thereunder.
(d) Nothing in this Act shall affect or modify in any way the obli-
gations or liabilities of any person under other Federal or State
law, including common law, with respect to releases of hazardous
substances or other pollutants or contaminants. The provisions of
this Act shall not be considered, interpreted, or construed in any
way as reflecting a determination, in part or whole, of policy re-
garding the inapplicability of strict liability, or strict liability doc-
trines, to activities relating to hazardous substances, pollutants, or
contaminants or other such activities.
[EXPIRATION, SUNSET PROVISION
[SEC. 303. Unless reauthorized by the Congress, the authority to
collect taxes conferred by this Act shall terminate on September
30, 1985, or when the sum of the amounts received in the Treasury
under section 4611 and under 4661 of the Internal Revenue Code of
1954 total $1,380,000,000, whichever occurs first. The Secretary of
the Treasury shall estimate when this level of $1,380,,000,000 will
be reached and shall by regulation, provide procedures: for the ter-
mination of the tax authorized by this Act and imposed under sec-
tions 4611 and 4661 of the Internal Revenue Code of 1954.] "
CONFORMING AMENDMENTS
SEC. 304. (a) Subsection (b) of section 504 of the Federal Water
Pollution Control Act is hereby repealed.
(b) One-half of the unobligated balance remaining before the date
of the enactment of this Act under subsection (k) of section 311 of
the Federal Water Pollution Control Act and all sums appropriated
under section 504(b) of the Federal Water Pollution Control Act
i * Repealed by section 501(b) of P.L. 99-499.
65-705 0-87-5
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shall be transferred to the Fund established under title n of this
Act.
(c) In any case in which any provision of section 311 of the Feder-
al Water Pollution Control Act is determined to be in conflict with
any provisions of this Act, the provisions of this Act shall apply.
LEGISLATIVE VETO
SEC. 305. (a) Notwithstanding any other provision of law, simulta-
neously with promulgation or repromulgation of any rule or regu-
lation under authority of title I of this Act, the head of the depart-
ment, agency, or instrumentality promulgating such rule or regula-
tion shall transmit a copy thereof to the Secretary of the Senate
and the Clerk of the House of Representatives. Except as provided
in subsection (b) of this section, the rule or regulation shall not
become effective, if
(1) within ninety calendar days of continuous session of Con-
gress after the date of promulgation, both Houses of Congress
adopt a concurrent resolution, the matter after the resolving
clause of which is as follows: "That Congress disapproves the
rule or regulation promulgated by the dealing
with the matter of , which rule or regulation was
transmitted to Congress on .", the blank spaces
therein being appropriately filled; or
(2) within sixty calendar days of continuous session of Con-
gress after the date of promulgation, one House of Congress
adopts such a concurrent resolution and transmits such resolu-
tion to the other House, and such resolution is not disapproved
by such other House within thirty calendar days of continuous
session of Congress after such transmittal.
(b) If, at the end of sixty calendar days of continuous session of
Congress after the date of promulgation of a rule or regulation, no
committee of either House of Congress has reported or been dis-
charged from further consideration of a concurrent resolution dis-
approving the rule or regulation and neither House has adopted
such a resolution, the rule or regulation may go into effect immedi-
ately. If, within such sixty calendar days, such a committee has re-
ported or been discharged from further consideration of such a res-
olution, or either House has adopted such a resolution, the rule or
regulation may go into effect not sooner than ninety calendar days
of continuous session of Congress after such rule is prescribed
unless disapproved as provided in subsection (a) of this section.
(c) For purposes of subsections (a) and (b) of this section
(1) continuity of session is broken only by an adjournment of
Congress sine die; and
(2) the days on which either House is not in session because
of an adjournment of more than three days to a day certain
are excluded in the computation of thirty, sixty, and ninety
calendar days of continuous session of Congress.
(d) Congressional inaction on, or rejection of, a resolution of dis-
approval shall not be deemed an expression of approval of such
rule or regulation.
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TRANSPORTATION
SEC. 306. (a) Each hazardous substance which is Listed or desig-
nated as provided in section 101(14) of this Act shall, [within
ninety days after the date of enactment of this Art] within SO
days after the enactment of the Superfund Amendments and Reau-
thorization Act of 1986, or at the time of such listing or designa-
tion, whichever is later, be listed and regulated as a hazardous ma-
terial under the Hazardous Materials Transportation Act.
(b) A common or contract carrier shall be liable under other law
in lieu of section 107 of this Act for damages or remedial action
resulting from the release of a hazardous substance during the
course of transportation which commenced prior to the effective
date of the listing of such substance as a hazardous material under
the Hazardous Materials Transportation Act, or for substances
listed pursuant to subsection (a) of this section, prior to the effec-
tive date of such listing and regulation: Provided, however, That
this subsection shall not apply where such a carrier can demon-
strate that he did not have actual knowledge of the identity or
nature of the substance released.
(c) Section 11901 of title 49, United States Code, is amended by-
CD redesignating subsection (h) as subsection (i);
(2) by inserting "and subsection (h)" after "subsection (g)" in
subsection (iX2) as so redesignated by paragraph (1) of this sub-
section; and
(3) by inserting the following new subsection (h):
"(h) A person subject to the jurisdiction of the Commission under
subchapter II of chapter 105 of this title, or an officer, agent, or
employee of that person, and who is required to comply with sec-
tion 10921 of this title but does not so comply with respect to the
transportation of hazardous wastes as defined by the Environmen-
tal Protection Agency pursuant to section 3001 of the Solid Waste
Disposal Act (but not including any waste the regulation of which
under the Solid Waste Disposal Act has been suspended by Con-
gress) shall, in any action brought by the Commission, be liable to
the United States for a civil penalty not to exceed $20,000 for each
violation.".
ASSISTANT ADMINISTRATOR FOR SOLID WASTE
SEC. 307. (a) Section 2001 of the Solid Waste Disposal Act is
amended by striking out "a Deputy Assistant" and inserting in lieu
thereof "an Assistant".
(b) The Assistant Administrator of the Environmental Protection
Agency appointed to head the Office of Solid Waste shall be in ad-
dition to the five Assistant Administrators of the Environmental
Protection Agency provided for in section l(d) of Reorganization
Plan Numbered 3 of 1970 and the additional Assistant Administra-
tor provided by the Toxic Substances Control Act, shall be appoint-
ed by the President by and with the advice and consent of the
Senate, and shall be compensated at the rate provided for Level IV
of the Executive Schedule pay rates under section 5315 of title 5,
United States Code.
(c) The amendment made by subsection (a) shall become effective
ninety days after the date of the enactment of this Art.
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SEPARABILITY
S«c. 308. If any provision of this Act, or the application of any
provision of this Act to any person or circumstance, is held invalid,
the application of such provision to other persons or circumstances
and trie remainder of this Act shall not be affected thereby. If an
administrative settlement under section 122 has the effect of limit-
ing any person's right to obtain contribution from any party to such
settlement, and if the effect of such limitation would constitute a
taking without just compensation in violation of the fifth amend-
ment of the Constitution of the United States, such person shall not
be entitled, under other laws of the United States, to recover com-
pensation from the United States for such taking, but in any such
case, such limitation on the right to obtain contribution shall be
treated as having no force and effect.
SEC 309. ACTIONS UNDER STATE LA W FOR DAMAGES FROM EXPOSURE TO
HAZARDOUS SUBSTANCES.
(a) STATE STATUTES OF LIMITATIONS FOR HAZARDOUS SUBSTANCE
CASES.
(1) EXCEPTION TO STATE STATUTES.In the case of any action
brought under State law for personal injury, or property dam-
ages, which are caused or contributed to oy exposure to any haz-
ardous substance, or pollutant or contaminant, released into the
environment from a facility, if the applicable limitations period
for such action (as specified in the State statute of limitations
or under common law) provides a commencement date which is
earlier than the federally required commencement date, such
period shall commence at the federally required commencement
date in lieu of the date specified in such State statute.
(2) STATE LAW GENERALLY APPLICABLE.Except as provided
in paragraph (1), the statute of limitations established under
State law shall apply in all actions brought under State law for
personal injury, or property damages, which are caused or con-
tributed to by exposure to any hazardous substance, or pollutant
or contaminant, released into the environment from a facility.
(3) ACTIONS UNDER SECTION 10?.Nothing in this section
shall apply with respect to any cause of action brought under
section 107 of this Act.
(b) DEFINITIONS.As used in this section
(1) TITLE I TERMS.The terms used in this section shall have
the same meaning as when used in title I of this Act.
(2) APPLICABLE LIMITATIONS PERIOD.The term "applicable
limitations period" means the period specified in a statute of
limitations during which a civil action referred to in subsection
(aXD may be brought.
(3) COMMENCEMENT DATE.The term "commencement date"
means the date specified in a statute of limitations as the be-
ginning of the applicable limitations period.
(4) FEDERALLY REQUIRED COMMENCEMENT DATE.
(A) IN GENERAL.Except as provided in subparagraph
(B}, the term "federally required commencement date"
means the date the plaintiff knew (or reasonably should
have known) that the personal injury or property damages
referred to in subsection (aXD were caused or contributed to
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by the hazardous substance or pollutant or contaminant
concerned.
(B) SPECIAL RULES.In the case of a minor or incompe-
tent plaintiff, the term "federally required commencement
date means the later of the date referred to in subpara-
graph (A) or the following:
(i) In the case of a minor, the date on which the
minor reaches the age of majority, as determined by
State law, or has a legal representative appointed.
(ii) In the case of an incompetent individual, the
date on which such individual becomes competent or
has had a legal representative appointed.
SEC. 310. CITIZENS SUITS.
(a) AUTHORITY TO BRING CIVIL ACTIONS.Except as provided in
subsections (d) and (e) of this section and in section 113(h) (relating
to timing of judicial review), any person may commence a civil
action on his own behalf
(1) against any person (including the United States and any
other governmental instrumentality or agency, to the extent per-
mitted by the eleventh amendment to the Constitution) who is
alleged to be in violation of any standard, regulation, condition,
requirement, or order which has become effective pursuant to
this Act (including any provision of an agreement under section
120, relating to Federal facilities); or
(2) against the President or any other officer of the United
States (including the Administrator of the Environmental Pro-
tection Agency and the Administrator of the ATSDR) where
there is alleged a failure of the President or of such other offi-
cer to perform any act or duty under this Act, including an act
or duty under section 120 (relating to Federal facilities), which
is not discretionary with the President or such other officer.
Paragraph (2) shall not apply to any act or duty under the provi-
sions of section 311 (relating to research, development, and demon-
stration).
(b) VENUE.
(1) ACTIONS UNDER SUBSECTION (a)
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(A) The President.
(B) The State in which the alleged violation occurs.
(C) Any alleged violator of the standard, regulation, con-
dition, requirement, or order concerned (including any pro-
vision of an agreement under section 120).
Notice under this paragraph shall be given in such manner as
the President shall prescribe by regulation.
(2) DILIGENT PROSECUTION.No action may be commenced
under paragraph (1) of subsection (a) if the President has com-
menced and is diligently prosecuting an action under this Act,
or under the Solid Waste Disposal Act to require compliance
with the standard, regulation, condition, requirement, or order
concerned (including any provision of an agreement under sec-
tion 120).
(e) RULES APPLICABLE TO SUBSECTION (a)(2) ACTIONS.No action
may be commenced under paragraph (2) of subsection (a) before the
60th day following the date on which the plaintiff gives notice to
the Administrator or other department, agency, or instrumentality
that the plaintiff will commence such action. Notice under this sub-
section shall be given in such manner as the President shall pre-
scribe by regulation.
(f) COSTS.The court, in issuing any final order in any action
brought pursuant to this section, may award costs of litigation (in-
cluding reasonable attorney and expert witness fees) to the prevail-
ing or the substantially prevailing party whenever the court deter-
mines such an award is appropriate. The court may, if a temporary
restraining order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with the Feder-
al Rules of Civil Procedure.
(g) INTERVENTION.In any action under this section, the United
States or the State, or both, if not a party may intervene as a matter
of right. For other provisions regarding intervention, see section 113.
(h) OTHER RIGHTS.This Act does not affect or otherwise impair
the rights of any person under Federal, State, or common law,
except with respect to the timing of review as provided in section
113(h) or as otherwise provided in section 309 (relating to actions
under State law).
(i) DEFINITIONS.The terms used in this section shall have the
same meanings as when used in title I.
SEC. 311. RESEARCH, DEVELOPMENT, AND DEMONSTRATION.
(a) HAZARDOUS SUBSTANCE RESEARCH AND TRAINING.
(1) AUTHORITIES OF SECRETARY.The Secretary of Health and
Human Services (hereinafter in this subsection referred to as
the Secretary), in consultation with the Administrator, shall es-
tablish and support a basic research and training program
(through grants, cooperative agreements, and contracts) consist-
ing of the following:
(A) Basic research (including epidemiologic and ecologic
studies) which may include each of the following:
(i) Advanced techniques for the detection, assessment,
and evaluation of the effects on human health of haz-
ardous substances.
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(ii) Methods to assess the risks to human health pre-
sented by hazardous substances.
(Hi) Methods and technologies to detect hazardous
substances in the environment and basic biological,
chemical, and physical methods to reduce the amount
and toxicity of hazardous substances.
(B) Training, which may include each of the following:
(i) Short courses and continuing education for State
and local health and environment agency personnel
and other personnel engaged in the handling of haz-
ardous substances, in the management of facilities at
which hazardous substances are located, and in the
evaluation of the hazards to human health presented
by such facilities.
(ii) Graduate or advanced training in environmental
and occupational health and safety and in the public
health and engineering aspects of hazardous waste con-
trol.
(Hi) Graduate training in the geosciences, including
hydrogeology, geological engineering, geophysics, geo-
chemistry, and related fields necessary to meet profes-
sional personnel needs in the public and private sectors
and to effectuate the purposes of this Act.
(2) DIRECTOR OF NiEHS.The Director of the National Insti-
tute for Environmental Health Sciences shall cooperate fully
with the relevant Federal agencies referred to in subparagraph
(A) of paragraph (5) in carrying out the purposes of this section.
(3) RECIPIENTS OF GRANTS, ETC.A grant, cooperative agree-
ment, or contract may be made or entered into under paragraph
(1) with an accredited institution of higher education. The insti-
tution may carry out the research or training under the grant,
cooperative agreement, or contract through contracts, including
contracts with any of the following:
(A) Generators of hazardous wastes.
(B) Persons involved in the detection, assessment, evalua-
tion, and treatment of hazardous substances.
(C) Owners and operators of facilities at which hazardous
substances are located.
(D) State and local governments.
(4) PROCEDURES.In making grants and entering into cooper-
ative agreements and contracts under this subsection, the Secre-
tary shall act through the Director of the National Institute for
Environmental Health Sciences. In considering the allocation of
funds for training purposes, the Director shall ensure that at
least one grant, cooperative agreement, or contract shall be
awarded for training described in each of clauses (i), (ii), and
(Hi) of paragraph (1XB). Where applicable, the Director may
choose to operate training activities in cooperation with the Di-
rector of the National Institute for Occupational Safety and
Health. The procedures applicable to grants and contracts
under title IV of the Public Health Service Act shall be fol-
lowed under this subsection.
(5) ADVISORY COUNCIL.To assist in the implementation of
this subsection and to aid in the coordination of research and
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demonstration and training activities funded from the Fund
under this section, the Secretary shall appoint an advisory
council (hereinafter in this subsection referred to as the "Advi-
sory Council") which shall consist of representatives of the fol-
lowing:
(A) The relevant Federal agencies.
(B) The chemical industry.
(C) The toxic waste management industry.
(D) Institutions of higher education.
(E) State and local health and environmental agencies.
(F) The general public.
(6) PLANNING.Within nine months after the date of the en-
actment of this subsection, the Secretary, acting through the Di-
rector of the National Institute for Environmental Health Sci-
ences, shall issue a plan for the implementation of paragraph
(1). The plan shall include priorities for actions under para-
graph (1) and include research and training relevant to scientif-
ic and technological issues resultingfrom site specific hazard-
ous substance response experience. The Secretary shall, to the
maximum extent practicable, take appropriate steps to coordi-
nate program activities under this plan with the activities of
other Federal agencies in order to avoid duplication of effort.
The plan shall be consistent with the need for the development
of new technologies for meeting the goals of response actions in
accordance with the provisions of this Act. The Advisory Coun-
cil shall be provided an opportunity to review and comment on
the plan and priorities and assist appropriate coordination
among the relevant Federal agencies referred to in subpara-
graph (A) of paragraph (5).
(b) ALTERNATIVE OR INNOVATIVE TREATMENT TECHNOLOGY RE-
SEARCH AND DEMONSTRATION PROGRAM.
(1) ESTABLISHMENT.The Administrator is authorized and
directed to carry out a program of research, evaluation, testing,
development, and demonstration of alternative or innovative
treatment technologies (hereinafter in this subsection referred to
as the "program"} which may be utilized in response actions to
achieve more permanent protection of human health and wel-
fare and the environment.
(2) ADMINISTRATION.The program shall be administered by
the Administrator, acting through an office of technology dem-
onstration and shall be coordinated with programs carried out
by the Office of Solid Waste and Emergency Response and the
Office of Research and Development.
(3) CONTRACTS AND GRANTS.In carrying out the program,
the Administrator is authorized to enter into contracts and co-
operative agreements with, and make grants to, persons, public
entities, and nonprofit private entities which are exempt from
tax under section SOKcXS) of the Internal Revenue Code of 1954.
The Administrator shall, to the maximum extent possible, enter
into appropriate cost sharing arrangements under this subsec-
tion.
(4) USE OF SITES.In carrying out the program, the Adminis-
trator may arrange for the use of sites at which a response may
be undertaken under section 104 for the purposes of carrying out
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research, testing, evaluation, development, and demonstration
projects. Each such project shall be carried out under such
terms and conditions as the Administrator shall require to
assure the protection of human health and the environment
and to assure adequate control by the Administrator of the re-
search, testing, evaluation, development, and demonstration ac-
tivities at the site.
(5) DEMONSTRATION ASSISTANCE.
(A) PROGRAM COMPONENTS.The demonstration assist-
ance program shall include the following:
(i) The publication of a solicitation and the evalua-
tion of applications for demonstration projects utilizing
alternative or innovative technologies.
(ii) The selection of sites which are suitable for the
testing and evaluation of innovative technologies.
(Hi} The development of detailed plans for innovative
technology demonstration projects.
(iv) The supervision of such demonstration projects
and the providing of quality assurance for data ob-
tained.
(v) The evaluation of the results of alternative inno-
vative technology demonstration projects and the deter-
mination of whether or not the technologies used are
effective and feasible.
(B) SOLICITATION.Within 90 days after the date of the
enactment of this section, and no less often than once every
12 months thereafter, the Administrator shall publish a so-
licitation for innovative or alternative technologies at a
stage of development suitable for full-scale demonstrations
at sites at which a response action may be undertaken
under section 104- The purpose of any such project shall be
to demonstrate the use of an alternative or innovative treat-
ment technology with respect to hazardous substances or
pollutants or contaminants which are located at the site or
which are to be removed from the site. The solicitation
notice shall prescribe information to be included in the ap-
plication, including technical and economic data derived
from the applicants own research and development efforts,
and other information sufficient to permit the Administra-
tor to assess the technology's potential and the types of re-
medial action to which it may be applicable.
(C) APPLICATIONS.Any person and any public or private
nonprofit entity may submit an application to the Adminis-
trator in response to the solicitation. The application shall
contain a proposed demonstration plan setting forth how
and when the project is to be carried out ana such other
information as the Administrator may require.
(D) PROJECT SELECTION.In selecting technologies to be
demonstrated, the Administrator shall fully review the ap-
plications submitted and shall consider at least the criteria
specified in paragraph (7). The Administrator shall select
or refuse to select a project for demonstration under this
subsection within 90 days of receiving the completed appli-
cation for such project. In the case of a refusal to select the
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project, the Administrator shall notify the applicant within
such 90-day period of the reasons for his refusal
(E) SITE SELECTION.The Administrator shall propose 10
sites at which a response may be undertaken under section
104 to be the location of any demonstration project under
this subsection within 60 days after the close of the public
comment period. After an opportunity for notice and public
comment, the Administrator shall select such sites and
projects. In selecting any such site, the Administrator shall
take into account the applicant's technical data and prefer-
ences either for onsite operation or for utilizing the site as a
source of hazardous substances or pollutants or contami-
nants to be treated offsite.
(F) DEMONSTRATION PLAN.Within 60 days after the se-
lection of the site under this paragraph to be the location of
a demonstration project, the Administrator shall establish
a final demonstration plan for the project, based upon the
demonstration plan contained in the application for the
project. Such plan shall clearly set forth now and when the
demonstration project will be carried out.
(G) SUPERVISION AND TESTING.Each demonstration
project under this subsection shall be performed by the ap-
plicant, or by a person satisfactory to the applicant, under
the supervision of the Administrator. The Administrator
shall enter into a written agreement with each applicant
granting the Administrator the responsibility and authority
for testing procedures, quality control, monitoring, and
other measurements necessary to determine and evaluate
the results of the demonstration project. The Administrator
may pay the costs of testing, monitoring, quality control,
and other measurements required by the Administrator to
determine and evaluate the results of the demonstration
project, and the limitations established by subparagraph (J)
shall not apply to such costs.
(H) PROJECT COMPLETION.Each demonstration project
under this subsection shall be completed within such time
as is established in the demonstration plan.
(I) EXTENSIONS.The Administrator may extend any
deadline established under this paragraph by mutual
agreement with the applicant concerned.
(J) FUNDING RESTRICTIONS.The Administrator shall not
provide any Federal assistance for any part of a full-scale
field demonstration project under this subsection to any ap-
plicant unless sucn applicant can demonstrate that it
cannot obtain appropriate private financing on reasonable
terms and conditions sufficient to carry out such demon-
stration project without such Federal assistance. The total
Federal funds for any full-scale field demonstration project
under this subsection shall not exceed 50 percent of the
total cost of such project estimated at the time of the award
of such assistance. The Administrator shall not expend
more than $10,000,000 for assistance under the program in
any fiscal year and shall not expend more than $3,000,000
for any single project.
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(6) FIELD DEMONSTRATIONS.In carrying out the program, the
Administrator shall initiate or cause to be initiated at least 10
field demonstration projects of alternative or innovative treat-
ment technologies at sites at which a response may be undertak-
en under section 104, in fiscal year 1987 and each of the suc-
ceeding three fiscal years. If the Administrator determines that
10 field demonstration projects under this subsection cannot be
initiated consistent with the criteria set forth in paragraph (7)
in any of such fiscal years, the Administrator shall transmit to
the appropriate committees of Congress a report explaining the
reasons for his inability to conduct such demonstration projects.
(7) CRITERIA.In selecting technologies to be demonstrated
under this subsection, the Administrator shall, consistent with
the protection of human health and the environment, consider
each of the following criteria:
(A) The potential for contributing to solutions to those
waste problems which pose the greatest threat to human
health, which cannot be adequately controlled under
present technologies, or which otherwise pose significant
management difficulties.
(B) The availability of technologies which have been suf-
ficiently developed for field demonstration and which are
likely to be cost-effective and reliable.
(C) The availability and suitability of sites for demon-
strating such technologies, taking into account the physical,
biological, chemical, and geological characteristics of the
sites, the extent and type of contamination found at the
site, and the capability to conduct demonstration projects
in such a manner as to assure the protection of human
health and the environment.
(D) The likelihood that the data to be generated from the
demonstration project at the site will be applicable to other
sites.
(8) TECHNOLOGY TRANSFER.In carrying out the program, the
Administrator shall conduct a technology transfer program in-
cluding the development, collection, evaluation, coordination,
and dissemination of information relating to the utilization of
alternative or innovative treatment technologies for response ac-
tions. The Administrator shall establish and maintain a cen-
tral reference library for such information. The information
maintained by the Administrator shall be made available to
the public, subject to the provisions of section 552 of title 5 of
the United States Code and section 1905 of title 18 of the
United States Code, and to other Government agencies in a
manner that will facilitate its dissemination; except, that upon
a showing satisfactory to the Administrator by any person that
any information or portion thereof obtained under this subsec-
tion by the Administrator directly or indirectly from such
person, would, if made public, divulge
(A) trade secrets; or
(B) other proprietary information of such person,
the Administrator shall not disclose such information and dis-
closure thereof shall be punishable under section 1905 of title
18 of the United States Code. This subsection is not authority to
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withhold information from Congress or any committee of Con-
gress upon the request of the chairman of such committee.
(9) TRAINING.The Administrator is authorized and directed
to carry out, through the Office of Technology demonstration, a
program of training and an evaluation of training needs for
each of the following:
(A) Training in the procedures for the handling and re-
moval of hazardous substances for employees who handle
hazardous substances.
(B) Training in the management of facilities at which
hazardous substances are located and in the evaluation of
the hazards to human health presented by such facilities
for State and local health and environment agency person-
nel.
(10) DEFINITION.For purposes of this subsection, the term
"alternative or innovative treatment technologies" means those
technologies, including proprietary or patented methods, which
permanently alter the composition of hazardous waste through
chemical, biological, or physical means so as to significantly
reduce the toxicity, mobility, or volume (or any combination
thereof) of the hazardous waste or contaminated materials
being treated. The term also includes technologies that charac-
terize or assess the extent of contamination, the chemical and
physical character of the contaminants, and the stresses im-
posed by the contaminants on complex ecosystems at sites.
(c) HAZARDOUS SUBSTANCE RESEARCH.The Administrator may
conduct and support, through grants, cooperative agreements, and
contracts, research with respect to the detection, assessment, and
evaluation of the effects on and risks to human health of hazardous
substances and detection of hazardous substances in the environ-
ment. The Administrator shall coordinate such research with the
Secreta.y of Health and Human Services, acting through the adviso-
ry council established under this section, in order to avoid duplica-
tion of effort.
(d) UNIVERSITY HAZARDOUS SUBSTANCE RESEARCH CENTERS.
(1) GRANT PROGRAM.The Administrator shall make grants
to institutions of higher learning to establish and operate not
fewer than 5 hazardous substance research centers in the
United States. In carrying out the program under this subsec-
tion, the Administrator should seek to have established and op-
erated 10 hazardous substance research centers in the United
States.
(2) RESPONSIBILITIES OF CENTERS.The responsibilities of
each hazardous substance research center established under this
subsection shall include, but not be limited to, the conduct of
research and training relating to the manufacture, use, trans-
portation, disposal, and management of hazardous substances
and publication and dissemination of the results of such re-
search.
(3) APPLICATIONS.Any institution of higher learning inter-
ested in receiving a grant under this subsection shall submit to
the Administrator an application in such form and containing
such information as the Administrator may require by regula-
tion.
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(4) SELECTION CRITERIA.The Administrator shall select re-
cipients of grants under this subsection on the basis of the fol-
lowing criteria:
(A) The hazardous substance research center shall be lo-
cated in a State which is representative of the needs of the
region in which such State is located for improved hazard-
ous waste management.
(B) The grant recipient shall be located in an area which
has experienced problems with hazardous substance man-
agement.
(C) There is available to the grant recipient for carrying
out this subsection demonstrated research resources.
(D) The capability of the grant recipient to provide lead-
ership in making national and regional contributions to
the solution of both long-range and immediate hazardous
substance management problems.
(E) The grant recipient shall make a commitment to sup-
port ongoing hazardous substance research programs with
budgeted institutional funds of at least $100,000 per year.
(F) The grant recipient shall have an interdisciplinary
staff with demonstrated expertise in hazardous substance
management and research.
(G) The grant recipient shall have a demonstrated ability
to disseminate results of hazardous substance research and
educational programs through an interdisciplinary continu-
ing education program.
(H) The projects which the grant recipient proposes to
carry out under the grant are necessary and appropriate.
(5) MAINTENANCE OF EFFORT.No grant may be made under
this subsection in any fiscal year unless the recipient of such
grant enters into such agreements with the Administrator as
the Administrator may require to ensure that such recipient
will maintain its aggregate expenditures from all other sources
for establishing and operating a regional hazardous substance
research center and related research activities at or above the
average level of such expenditures in its 2 fiscal years preceding
the date of the enactment of this subsection.
(6) FEDERAL SHARE.The Federal share of a grant under this
subsection shall not exceed 80 percent of the costs of establish-
ing and operating the regional hazardous substance research
center and related research activities carried out by the grant
recipient.
(7) LIMITATION ON USE OF FUNDS.No funds made available
to carry out this subsection shall be used for acquisition of real
property (including buildings) or construction of any building.
(8) ADMINISTRATION THROUGH THE OFFICE OF THE ADMINIS-
TRATOR.Administrative responsibility for carrying out this
subsection shall be in the Office of the Administrator.
(9) EQUITABLE DISTRIBUTION OF FUNDS.The Administrator
shall allocate funds made available to carry out this subsection
equitably among the regions of the United States.
(10) TECHNOLOGY TRANSFER ACTIVITIES.Not less than five
percent of the funds made available to carry out this subsection
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for any fiscal year shall be available to carry out technology
transfer activities.
(e) REPORT TO CONGRESS.At the time of the submission of the
annual budget request to Congress, the Administrator shall submit
to the appropriate committees of the House of Representatives and
the Senate and to the advisory council established under subsection
(a), a report on the progress of the research, development, and dem-
onstration program authorized by subsection (b), including an eval-
uation of each demonstration project completed in the preceding
fiscal year, findings with respect to the efficacy of such demonstrat-
ed technologies in achieving permanent and significant reductions
in risk from hazardous wastes, the costs of such demonstration
projects, and the potential applicability of, and projected costs for,
such technologies at other hazardous substance sites.
(f) SAVING PROVISION.Nothing in this section shall be construed
to affect the provisions of the Solid Waste Disposal Act.
(g) SMALL BUSINESS PARTICIPATION.The Administrator shall
ensure, to the maximum extent practicable, an adequate opportunity
for small business participation in the program established by sub-
section (b).
SEC. 312. LOVE CANAL PROPERTY ACQUISITION.
(a) ACQUISITION OF PROPERTY IN EMERGENCY DECLARATION
AREA.The Administrator of the Environmental Protection Agency
(hereinafter referred to as the "Administrator") may make grants
not to exceed $2,500,000 to the State of New York (or to any duly
constituted public agency or authority thereof) for purposes of acqui-
sition of private property in the Love Canal Emergency Declaration
Area. Such acquisition shall include (but shall not be limited to) all
private property within the Emergency Declaration Area, including
non-owner occupied residential properties, commercial, industrial,
public, religious, non-profit, and vacant properties.
(b) PROCEDURES FOR ACQUISITION.No property shall be acquired
pursuant to this section unless the property owner voluntarily agrees
to such acquisition. Compensation for any property acquired pursu-
ant to this section shall be based upon the fair market value of the
property as it existed prior to the emergency declaration. Valuation
procedures for property acquired with funds provided under this sec-
tion shall be in accordance with those set forth in the agreement en-
tered into between the New York State Disaster Preparedness Com-
mission and the Love Canal Revitalization Agency on October 9,
1980.
(c) STATE OWNERSHIP.The Administrator shall not provide any
funds under this section for the acquisition of any properties pursu-
ant to this section unless a public agency or authority of the State of
New York first enters into a cooperative agreement with the Admin-
istrator providing assurances deemed adequate by the Administra-
tor that the State or an agency created under the laws of the State
shall take title to the properties to be so acquired.
(d) MAINTENANCE OF PROPERTY.The Administrator shall enter
into a cooperative agreement with an appropriate public agency or
authority of the State of New York under which the Administrator
shall maintain or arrange for the maintenance of all properties
within the Emergency Declaration Area that have been acquired by
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any public agency or authority of the State. Ninety (90) percent of
the costs of such maintenance shall be paid by the Administrator.
The remaining portion of such costs shall be paid by the State
(unless a credit is available under section 104(c)). The Administrator
is authorized, in his discretion, to provide technical assistance to
any public agency or authority of the State of New York in order to
implement the recommendations of the habitability and land-use
study in order to put the land within the Emergency Declaration
Area to its best use.
(e) HABITABILITY AND LAND USE STUDY.The Administrator
shall conduct or cause to be conducted a habitability and land-use
study. The study shall
(1) assess the risks associated with inhabiting of the Love
Canal Emergency Declaration Area;
(2) compare the level of hazardous waste contamination in
that Area to that present in other comparable communities; and
(3) assess the potential uses of the land within the Emergency
Declaration Area, including but not limited to residential, in-
dustrial, commercial and recreational, and the risks associated
with such potential uses.
The Administrator shall publish the findings of such study and
shall work with the State of New York to develop recommendations
based upon the results of such study.
(f) FUNDING.For purposes of section 111 [and 221(c) of this Act],
the expenditures authorized by this section shall be treated as a cost
specified in section lll(c).
(g) RESPONSE.The provisions of this section shall not affect the
implementation of other response actions within the Emergency Dec-
laration Area that the Administrator has determined (before enact-
ment of this section) to be necessary to protect the public health or
welfare or the environment.
(h) DEFINITIONS.For purposes of this section:
(1) EMERGENCY DECLARATION AREA.The terms "Emergency
Declaration Area" and "Love Canal Emergency Declaration
Area " mean the Emergency Declaration Area as defined in sec-
tion 950, paragraph (z) of the General Municipal Law of the
State of New York, Chapter 259, Laws of 1980, as in effect on
the date of the enactment of this section.
(2) PRIVATE PROPERTY.As used in subsection (a), the term
"private property" means all property which is not owned by a
department, agency, or instrumentality of
(A) the United States, or
(B) the State of New York (or any public agency or au-
thority thereof).
TITLE IVPOLLUTION INSURANCE
SEC. 401. DEFINITIONS.
As used in this title
(1) INSURANCE.The term "insurance" means primary insur-
ance, excess insurance, reinsurance, surplus lines insurance, and
any other arrangement for shifting and distributing risk which
is determined to be insurance under applicable State or Federal
law.
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(2) POLLUTION LIABILITY.The term "pollution liability"
means liability for injuries arising from the release of hazard-
ous substances or pollutants or contaminants.
(3) RISK RETENTION GROUP.The term "risk retention group"
means any corporation or other limited liability association tax-
able as a corporation, or as an insurance company, formed
under the laws of any State
(A) whose primary activity consists of assuming and
spreading all, or any portion, of the pollution liability of its
group members;
(B) which is organized for the primary purpose of con-
ducting the activity described under subparagraph (A);
(C) which is chartered or licensed as an insurance compa-
ny and authorized to engage in the business of insurance
under the laws of any State; and
(D) which does not exclude any person from membership
in the group solely to provide for members of such a group
a competitive advantage over such a person.
(4) PURCHASING GROUP.The term "purchasinggroup" means
any group of persons which has as one of its purposes the pur-
chase of pollution liability insurance on a group basis.
(5) STATE.The term "State" means any State of the United
States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the Virgin Islands, the Com-
monwealth of the Northern Marianas, and any other territory
or possession over which the United States has jurisdiction.
SEC. 402. STATE LA WS; SCOPE OF TITLE.
(a) STATE LAWS.Nothing in this title shall be construed to affect
either the tort law or the law governing the interpretation of insur-
ance contracts of any State. The definitions of pollution liability
and pollution liability insurance under any State law shall not be
applied for the purposes of this title, including recognition or quali-
fication of risk retention groups or purchasing groups.
(b) SCOPE OF TITLE.The authority to offer or to provide insur-
ance under this title shall be limited to coverage of pollution liabil-
ity risks and this title does not authorize a risk retention group or
purchasing group to provide coverage of any other line of insurance.
SEC. 403. RISK RETENTION GROUPS.
(a) EXEMPTION.Except as provided in this section, a risk reten-
tion group shall be exempt from the following:
(1) A State law, rule, or order which makes unlawful, or regu-
lates, directly or indirectly, the operation of a risk retention
group.
(2) A State law, rule, or order which requires or permits a
risk retention group to participate in any insurance insolvency
guaranty association to which an insurer licensed in the State
is required to belong.
(3) A State law, rule, or order which requires any insurance
policy issued to a risk retention group or any member of the
group to be countersigned by an insurance agent or broker resid-
ing in the State.
(4) A State law, rule, or order which otherwise discriminates
against a risk retention group or any of its members.
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(b) EXCEPTIONS.
(1) STATE LAWS GENERALLY APPLICABLE,Nothing in subsec-
tion (a) shall be construed to affect the applicability of State
laws generally applicable to persons or corporations. The State
in which a risk retention group is chartered may regulate the
formation and operation of the group.
(2) STATE REGULATIONS NOT SUBJECT TO EXEMPTION.Subsec-
tion (a) shall not apply to any State law which requires a risk
retention group to do any of the following:
(A) Comply with the unfair claim settlement practices
law of the State.
(B} Pay, on a nondiscriminatory basis, applicable premi-
um and other taxes which are levied on admitted insurers
and surplus line insurers, brokers, or policyholders under
the laws of the State.
(C) Participate, on a nondiscriminatory basis, in any
mechanism established or authorized under the law of the
State for the equitable apportionment among insurers of
pollution liability insurance losses and expenses incurred
on policies written through such mechanism.
(D) Submit to the appropriate authority reports and other
information required of licensed insurers under the laws of
a State relating solely to pollution liability insurance losses
and expenses.
(E) Register with and designate the State insurance com-
missioner as its agent solely for the purpose of receiving
service of legal documents or process.
(F) Furnish, upon request, such commissioner a copy of
any financial report submitted by the risk retention group
to the commissioner of the chartering or licensing jurisdic-
tion.
(G) Submit to an examination by the State insurance
commissioner in any State in which the group is doing
business to determine the group's financial condition, if
(i) the commissioner has reason to believe the risk re-
tention group is in a financially impaired condition;
and
(ii) the commissioner of the jurisdiction in which the
group is chartered has not begun or has refused to ini-
tiate an examination of the group.
(H) Comply with a lawful order issued in a delinquency
proceeding commenced by the State insurance commissioner
if the commissioner of the jurisdiction in which the group
is chartered has failed to initiate such a proceeding after
notice of a finding of financial impairment under subpara-
graph (G).
(c) APPLICATION OF EXEMPTIONS.The exemptions specified in
subsection (a} apply to
(1) pollution liability insurance coverage provided by a risk
retention group for
(A} such group; or
(B} any person who is a member of such group;
(2) the sale of pollution liability insurance coverage for a risk
retention group; and
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(3) the provision of insurance related services or management
services for a risk retention group or any member of such a
group.
(d) AGENTS OR BROKERS.A State may require that a person
acting, or offering to act, as an agent or broker for a risk retention
group obtain a license from that State, except that a State may not
impose any qualification or requirement which discriminates
against a nonresident agent or broker.
SEC. 404. PURCHASING GROUPS.
(a) EXEMPTION.Except as provided in this section, a purchasing
group is exempt from the following:
(1) A State law, rule, or order which prohibits the establish-
ment of a purchasing group.
(2) A State law, rule, or order which makes it unlawful for
an insurer to provide or offer to provide insurance on a basis
providing, to a purchasing group or its member, advantages,
based on their loss and expense experience, not afforded to other
persons with respect to rates, policy forms, coverages, or other
matters.
(3) A State law, rule, or order which prohibits a purchasing
group or its members from purchasing insurance on the group
oasis described in paragraph (2) of this subsection.
(4) A State law, rule, or order which prohibits a purchasing
group from obtaining insurance on a group basis because the
group has not been in existence for a minimum period of time
or because any member has not belonged to the group for a min-
imum period of time.
(5) A State law, rule, or order which requires that a purchas-
ing group must have a minimum number of members, common
ownership or affiliation, or a certain legal form.
(6) A State law, rule, or order which requires that a certain
percentage of a purchasing group must obtain insurance on a
group basis.
(7) A State law, rule, or order which requires that any insur-
ance policy issued to a purchasing group or any members of the
group be countersigned by an insurance agent or broker residing
in that State.
(8) A State law, rule, or order which otherwise discriminate
against a purchasing group or any of its members.
(b) APPLICATION OF EXEMPTIONS.The exemptions specified in
subsection (a) apply to the following:
(1) Pollution liability insurance, and comprehensive general
liability insurance which includes this coverage, provided to
(A) a purchasing group; or
(B) any person who is a member of a purchasing group.
(2) The sale of any one of the following to a purchasing group
or a member of the group:
(A) Pollution liability insurance and comprehensive gen-
eral liability coverage.
(B) Insurance related services.
(C) Management services.
(c) AGENTS OR BROKERS.A State may require that a person
acting, or offering to act, as an agent or broker for a purchasing
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group obtain a license from that State, except that a State may not
impose any qualification or requirement which discriminates
against a nonresident agent or broker.
SEC. 405. APPLICABILITY OF SECURITIES LA WS.
(a) OWNERSHIP INTERESTS.The ownership interests of members
of a risk retention group shall be considered to be
(1) exempted securities for purposes of section 5 of the Securi-
ties Act of 1933 and for purposes of section 12 of the Securities
Exchange Act of 1934; and
(2) securities for purposes of the provisions of section 17 of the
Securities Act of 1933 and the provisions of section 10 of the Se-
curities Exchange Act of 1934.
(b) INVESTMENT COMPANY ACT.A risk retention group shall not
be considered to be an investment company for purposes of the In-
vestment Company Act of 1940 (15 U.S.C. 80a-l et seqj.
(c) BLUE SKY LAW.The ownership interests of members in a risk
retention group shall not be considered securities for purposes of any
State blue sky law.
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PROVISIONS OF THE SUPERFUND AMENDMENTS AND RE-
AUTHORIZATION ACT OF 1986 (P.L. 99-499) WHICH DO
NOT AMEND PUBLIC LAW 96-510 (CERCLA)
SEC. 118. MISCELLANEOUS PROVISIONS.
(b) REMOVAL AND TEMPORARY STORAGE OF CONTAINERS OF RADON
CONTAMINATED SOIL.Not later than 90 days after the enactment
of this Act, the Administrator shall make a grant of $7,500,000 to
the State of New Jersey for transportation from residential areas
in the State of New Jersey and temporary storage of approximately
14,000 containers of radon contaminated soil which is the subject of
a remedial action for which a remedial investigation and feasibility
study has been initiated before such date. Such containers shall be
transported to and temporarily stored at any site in the State of
New Jersey designated by the Governor of such State. For purposes
of section lll(a) of CERCLA, the grant under this subsection for
transportation and storage of such containers shall be treated as
payment of governmental response cost incurred pursuant to sec-
tion 104 of CERCLA.
(c) UNCONSOUDATED QUATERNARY AQUIFER.Notwithstanding
any other provision of law, no person may
(1) locate or authorize the location of a landfill, surface im-
poundment, waste pile, injection well, or land treatment facili-
ty over the Unconsolidated Quaternary Aquifer, or the re-
charge zone or streamflow source zone of such aquifer, in the
Rockaway River Basin, New Jersey (as such aquifer and zones
are described in the Federal Register, January 24, 1984, pages
2946-2948); or
(2) place or authorize the placement of solid waste in a land-
fill, surface impoundment, waste pile, injection well, or land
treatment facility over such aquifer or zone.
This subsection may be enforced under sections 309 (a) and (b) of
the Federal Water Pollution Control Act. For purposes of section
309(c) of such Act, a violation of this subsection shall be considered
a violation of section 301 of such Act.
(d) STUDY OF SHORTAGES OF SKILLED PERSONNEL.The Comptrol-
ler General shall study the problem of shortages of skilled person-
nel in the Environmental Protection Agency to carry out response
actions under CERCLA. In particular the Comptroller General
shall study
(1) the types of skilled personnel needed for response actions
for which there are shortages in the Environmental Protection
Agency,
(2) the extent of such shortages,
(143)
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(3) pay differential between the public and private sectors for
the skilled positions involved in response actions,
(4) the extent to which skilled personnel of Federal and State
governments involved in response actions are leaving their po-
sitions for employment in the private sector,
(5) the success of programs of the Department of Defense and
the Office of Personnel Management in retaining skilled per-
sonnel, and
(6) the types of training required to improve the skills of em-
ployees carrying out response actions.
The Comptroller General shall complete the study required by this
subsection and submit a report on the results thereof to Congress
not later than July 1, 1987.
(e) STATE REQUIREMENTS NOT APPLICABLE TO CERTAIN TRANS-
FERS.No State or local requirement shall apply to the transfer
and disposal of any hazardous substance or pollutant or contami-
nant from a facility at which a release or threatened release has
occurred to a facility for which a final permit under section 3005(a)
of the Solid Waste Disposal Act is in effect if the following condi-
tions apply
(1) Such permit was issued after January 1, 1983, and before
November 1, 1984.
(2) The transfer and disposal is carried out pursuant to a co-
operative agreement between the Administrator and the State.
(3) The facility at which the release or threatened release
has occurred is identified as the McColl Site in Fullerton, Cali-
fornia.
The terms used in this section shall have the same meaning as
when used in title I of CERCLA.
(f) STUDY OF LEAD POISONING IN CHILDREN.(1) The Administra-
tor of the Agency for Toxic Substances and Disease Registry shall,
in consultation with the Administrator of the Environmental Pro-
tection Agency and other officials as appropriate, not later than
March 1, 1987, submit to the Congress, a report on the nature and
extent of lead poisoning in children from environmental sources.
Such report shall include, at a minimum, the following informa-
tion
(A) an estimate of the total number of children, arrayed ac-
cording to Standard Metropolitan Statistical Area or other ap-
propriate geographic unit, exposed to environmental sources of
lead at concentrations sufficient to cause adverse health ef-
fects;
(B) an estimate of the total number of children exposed to
environmental sources of lead arrayed according to source or
source types;
(C) a statement of the long term consequences for public
health of unabated exposures to environmental sources of lead
and including but not limited to, diminution in intelligence, in-
creases in morbidity and mortality; and
(D) methods and alternatives available for reducing expo-
sures of children to environmental sources of lead.
(2) Such report shall also score and evaluate specific sites at
which children are known to be exposed to environmental sources
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of lead due to releases, utilizing the Hazard Ranking system of the
National Priorities List.
(3) The costs of preparing and submitting the report required by
this section shall be borne by the Hazardous Substance Superfund
established under subchapter A of chapter 98 of Internal Revenue
Code of 1954.
(g) FEDERALLY LICENSED DAM.For purposes of CERCLA in the
case of the Milltown Dam in the State of Montana licensed under
part 1 of the Federal Power Act and designated as FERC license
number 2543-004, if a hazardous substance, pollutant, or contami-
nant
(1) has been released into the environment upstream of the
dam, and
(2) has subsequently come to be located in the reservoir cre-
ated by such dam
notwithstanding section 101(20) of such Act, the term "owner or op-
erator" does not include the owner or operator of the dam unless
such owner or operator is a person who would otherwise be liable
for such release or threatened release under section 107 of such
Act.
(h) COMMUNITY RELOCATION AT TIMES BEACH SITE.For purposes
of any Missouri dioxon site at which a temporary or permanent re-
location decision has been made, or is under active consideration,
by the Administrator as of the enactment of this Act, the terms
"remove" and "removal" as used in CERCLA shall be deemed to
include the costs of permanent relocation of resiidents where it is
determined that such permanent relocation is cost effective or may
be necessary to protect health or welfare. In the case of a business
located in an area of evacuation or relocation at such facility, such
terms may also include the payment of those installments of princi-
pal and interest on business debt which accrue between the date of
evacuation or temporary relocation and 30 days following the date
that permanent relocation is actually accomplished or, if perma-
nent relocation is formally rejected as the appropriate response,
the date on which evacuation or temporary relocation ceases. In
the case of an individual unemployed as a result of such evacuation
or relocation, such terms may also include the provision of assist-
ance identical to that authorized by sections 407, 408, and 409 of
the Disaster Relief Act of 1974; except that the costs of such assist-
ance shall be paid from the Trust Fund established under amend-
ments made to the Internal Revenue Code of 1954 by this Act. Sec-
tion 104
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nant from the facility at which the release or threatened
release occurs to an offsite facility.
(B) REMEDIAL ACTION.The remedial action provides
each of the following:
(i) Changes in the character or composition of the
hazardous substance or pollutant or contaminant con-
cerned so that it no longer presents a risk to public
health.
(ii) Protection against accidental emissions during
operation.
(iii) Protection of public health considering the mul-
timedia impacts of the treatment process.
(C) PUBLIC PARTICIPATION,The State provides proce-
dures for public participation regarding the response
action which are at least equivalent to the level of public
participation procedures applicable under CERCLA and
under the Solid Waste Disposal Act.
(2) EFFECT OF WAIVER.The waiver of any permit require-
ment under this subsection shall not be construed to waive any
standard or level of control which
(A) is applicable to any hazardous substance or pollutant
or contaminant involved in the remedial action; and
(B) would otherwise be contained in the permit.
Such waiver of any permit requirement under subtitle C of the
Solid Waste Disposal Act shall only apply to the extent that
the facility or remedial action involves the onsite treatment
with a mobile incineration unit of waste present at such site.
The waiver shall not apply to any other regulated or potential-
ly regulated activity, including the use of the mobile inciner-
ation unit for actions not authorized by the State.
(3) EXPIRATION OF AUTHORITY.The authority of this subsec-
tion shall terminate at the end of 3 years, unless the State
demonstrates, to the satisfaction of the Administrator, that the
operation of mobile incinerators in the State has sufficiently
protected public health and the environment and is consistent
with the criteria required for a permit under subtitle C of the
Solid Waste Disposal Act.
(j) STUDY OF JOINT USE OF TRUCKS.
(1) STUDY.The Administrator, in consultation with the Sec-
retary of Transportation, shall conduct a study of problems as-
sociated with the use of any vehicle for purposes other than
the transportation of hazardous substances when that vehicle
is used at other times for the transportation of hazardous sub-
stances. At a minimum, the Administrator shall consider
(A) whether such joint use of vehicles should be prohibit-
ed, and
(B) whether, if such joint use is permitted, special safe-
guards should be taken to minimize threats to public
health and the environment.
(2) REPORT.The Administrator shall submit a report, along
with recommendations, to Congress on the results of the study
conducted under paragraph (1) not later than 180 days after
the date of the enactment of this Act.
(k) RADON ASSESSMENT AND MITIGATION.
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(1) NATIONAL ASSESSMENT OF RADON GAS.No later than one
year after the enactment of this Act, the Administrator shall
submit to the Congress a report which shall, to the extent pos-
sible
(A) identify the locations in the United States where
radon is found in structures where people normally live or
work, including educational institutions;
(B) assess the levels of radon gas that are present in
such structures;
(C) determine the level of radon gas and radon daugh-
ters which poses a threat to human health and assess for
each location identified under subparagraph (A) the extent
of the threat to human health;
(D) determine methods of reducing or eliminating the
threat to human health of radon gas and radon daughters;
and
(E) include guidance and public information materials
based on the findings or research of mitigating radon.
(2) RADON MITIGATION DEMONSTRATION PROGRAM.
(A) DEMONSTRATION PROGRAM.The Administrator shall
conduct a demonstration program to test methods and
technologies of reducing or eliminating radon gas and
radon daughters where it poses a threat to human health.
The Administrator shall take into consideration any dem-
onstration program underway in the Reading Prong of
Pennsylvania, New Jersey, and New York and at other
sites prior to enactment. The demonstration program
under this section shall be conducted in the Reading
Prong, and at such other sites as the Administrator consid-
ers appropriate.
(B) ANNUAL REPORTS.The Administrator shall submit
annual reports not later than February 1 of each year (be-
ginning February 1, 1987) on the status of the demonstra-
tion program carried out under this subsection and on any
such demonstration program initiated prior to enactment.
(C) LIABILITY.Liability, if any, for persons undertaking
activities pursuant to the radon mitigation demonstration
program authorized under this subsection shall be deter-
mined under principles of existing law.
(3) CONSTRUCTION OP SECTION.Nothing in this subsection
shall be construed to authorize the Administrator to carry out
any regulatory program or any activity other than research,
development, and related reporting, information dissemination,
and coordination activities specified in this subsection. Nothing
in paragraph (1) or (2) shall be construed to limit the authority
of the Administrator or of any other agency or instrumentality
of the United States under any other authority of law.
(1) GULF COAST HAZARDOUS SUBSTANCE RESEARCH, DEVELOPMENT,
AND DEMONSTRATION CENTER.
(1) ESTABLISHMENT OF HAZARDOUS SUBSTANCE RESEARCH, DE-
VELOPMENT, AND DEMONSTRATION CENTER.The Administrator
shall establish a hazardous substance research, development,
and demonstration center (hereinafter in this subsection re-
ferred to as the "Center") for the purpose of conducting re-
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search to aid in more effective hazardous substance response
and waste management throughout the Gulf Coast.
(2) PURPOSES OF THE CENTER.The Center shall carry out a
program of research, evaluation, testing, development, and
demonstration of alternative or innovative technologies which
may be utilized in response actions or in normal handling of
hazardous wastes to achieve better protection of human health
and the environment.
(3) OPERATION OF CENTER.(A) For purposes of operating the
Center, the Administrator is authorized to enter into contracts
and cooperative agreements with, and make grants to, a uni-
versity related institute involved with the improvement of
waste management. Such institute shall be located in Jefferson
County, Texas.
(B) The Center shall be authorized to make grants, accept
contributions, and enter into agreements with universities lo-
cated in the States of Texas, Louisiana, Mississippi, Alabama,
and Florida in order to carry out the purposes of the Center.
(4) AUTHORIZATION OF APPROPRIATIONS.There are author-
ized to be appropriated to the Administrator for purposes of
carrying out this subsection for fiscal years beginning after
September 30, 1986, not more than $5,000,000.
(m) RADON PROTECTION AT CURRENT NATIONAL PRIORITIES LIST
SITES.It is the sense of the Congress that the President, in select-
ing response action for facilities included on the National Priorities
List published under section 105 of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980 because
of the presence of radon, is not required by statute or regulations
to use fully demonstrated methods, particularly those involving the
offsite transport and disposition of contaminated material, but may
use innovative or alternative methods which protect human health
and the environment in a more cost-effective manner.
(n) SPILL CONTROL TECHNOLOGY.
(1) ESTABLISHMENT OF PROGRAM.Within 180 days of enact-
ment of this subsection, the Secretary of the United States De-
partment of Energy is directed to carry out a program of test-
ing and evaluation of technologies which may be utilized in re-
sponding to liquefied gaseous and other hazardous substance
spills at the Liquefied Gaseous Fuels Spill Test Facility that
threaten public health or the environment.
(2) TECHNOLOGY TRANSFER.In carrying out the program es-
tablished under this subsection, the Secretary shall conduct a
technology transfer program that, at a minimum
(A) documents and archives spill control technology;
(B) investigates and analyzes significant hazardous spill
incidents;
(C) develops and provides generic emergency action
plans;
(D) documents and archives spill test results;
(E) develops emergency action plans to respond to spills;
(F) conducts training of spill response personnel; and
(G) establishes safety standards for personnel engaged in
spill response activities.
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(3) CONTRACTS AND GRANTS.The Secretary is directed to
enter into contracts and grants with a nonprofit organization
in Albany County, Wyoming, that is capable of providing the
necessary technical support and which is involved in environ-
mental activities related to such hazardous substance related
emergencies.
(4) USE OF SITE.The Secretary shall arrange for the use of
the Liquefied Gaseous Fuels Spill Test Facility to carry out the
provisions of this subsection.
(o) PACIFIC NORTHWEST HAZARDOUS SUBSTANCE RESEARCH, DEVEL-
OPMENT, AND DEMONSTRATION CENTER.
(1) ESTABLISHMENT.The Administrator shall establish a
hazardous substance research, development, and demonstra-
tion center (hereinafter in this subsection referred to as the
"Center") for the purpose of conducting research to aid in
more effective hazardous substance response in the Pacific
Northwest.
(2) PURPOSES OF CENTER.The Center shall carry out a pro-
gram of research, evaluation, testing, development, and demon-
stration of alternative or innovative technologies which may be
utilized in response actions to achieve more permanent protec-
tion of human health and welfare and the environment.
(3) OPERATION OF CENTER.
(A) NONPROFIT ENTITY.For the purposes of operating
the Center, the Administrator is authorized to enter into
contracts and cooperative agreements with, and make
grants to, a nonprofit private entity as defined in section
[201(i) of Public Law 96-517 Citation Not Correct] which
entity shall agree to provide the basic technical and man-
agement personnel. Such nonprofit private entity shall
also agree to provide at least two permanent research fa-
cilities, one of which shall be located in Benton County,
Washington, and one of which shall be located in Clallam
County, Washington.
(B) AUTHORITIES.The Center shall be authorized to
make grants, accept contributions, and enter into agree-
ments with universities located in the States of Washing-
ton, Oregon, Idaho, and Montana in order to carry out the
purposes of the Center.
(4) HAZARDOUS WASTE RESEARCH AT THE HANFORD SITE.
(A) INTERAGENCY AGREEMENTS.The Administrator and
the Secretary of Energy are authorized to enter into inter-
agency agreements with one another for the purpose of
providing for research, evaluation, testing, development,
and demonstration into alternative or innovative technol-
ogies to characterize and assess the nature and extent of
hazardous waste (including radioactive mixed waste) con-
tamination at the Hanford site, in the State of Washing-
ton.
(B) FUNDING.There is authorized to be appropriated to
the Secretary of Energy for purposes of carrying out this
paragraph for fiscal years beginning after September 30,
1986, not more than $5,000,000. All sums appropriated
under this subparagrapn shall be provided to the Adminis-
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trator by the Secretary of Energy, pursuant to the inter-
agency agreement entered into under subparagraph (A),
for the purpose of the Administrator entering into con-
tracts and cooperative agreements with, and making
grants to, the Center in order to carry out the research,
evaluation, testing, development, and demonstration de-
scribed in paragraph (1).
(5) AUTHORIZATION OF APPROPRIATIONS.There is authorized
to be appropriated to the Administrator for purposes of carry-
ing out this subsection (other than paragraph (4)) for fiscal
years beginning after September 30, 1986, not more than
$5,000,000.
(p) SILVER CREEK TAILINGS.Effective with the date of enactment
of this Act, the facility listed in Group 7 in EPA National Priorities
List Update #4 (50 Federal Register 37956, September 18, 1985),
the site in Park City, Utah, which is located on tailings from non-
coal mining operations, shall be deemed removed from the list of
sites recommended for inclusion on the National Priorities Last,
unless the President determines upon site specific data not used in
the proposed listing of such facility, that the facility meets require-
ments of the Hazard Ranking System or any revised Hazard Rank-
ing System.
SEC. 120. FEDERAL FACILITIES.
*******
(b) LIMITED GRANDFATHER.Section 120 of CERCLA shall not
apply to any response action or remedial action for which a plan is
under development by the Department of Energy on the date of en-
actment of this Act with respect to facilities
(1) owned or operated by the United States and subject to the
jurisdiction of such Department;
(2) located in St. Charles and St. Louis counties, Missouri, or
the city of St. Louis, Missouri, and
(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall consult with
the Administrator of the Environmental Protection Agency.
SEC. 121. CLEANUP STANDARDS.
*******
(b) EFFECTIVE DATE.With respect to section 121 of CERCLA, as
added by this section
(1) The requirements of section 121 of CERCLA shall not
apply to any remedial action for which the Record of Decision
(hereinafter in this section referred to as the "ROD") was
signed, or the consent decree was lodged, before date of enact-
ment.
(2) If the ROD was signed, or the consent decree lodged,
within the 30-day period immediately following enactment of
the Act, the Administrator shall certify in writing that the
portion of the remedial action covered by the ROD or consent
decree complies to the maximum extent practicable with sec-
tion 121 of CERCLA.
Any ROD signed before enactment of this Act and reopened after
enactment of this Act to modify or supplement the selection of
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remedy shall be subject to the requirements of section 121 of
CERCLA.
SEC. 124. METHANE RECOVERY.
(b) REGULATION UNDER THE SOLID WASTE DISPOSAL ACT.Unless
the Administrator of the Environmental Protection Agency pro-
mulgates regulations under subtitle C of the Solid Waste Disposal
Act addressing the extraction of wastes from landfills as part of the
process of recovering methane from such landfills, the owner and
operator of equipment used to recover methane from a landfill
shall not be deemed to be managing, generating, transporting,
treating, storing, or disposing of hazardous or liquid wastes within
the meaning of that subtitle. If the aqueous or hydrocarbon phase
of the condensate or any other waste material removed from the
gas recovered from the landfill meets any of the characteristics
identified under section 3001 of subtitle C of the {Solid Waste Dis-
posal Act, the preceding sentence shall not apply and such conden-
sate phase or other waste material shall be deemed a hazardous
waste under that subtitle, and shall be regulated accordingly.
SEC. 126. WORKER PROTECTION STANDARDS.
(a) PROMULGATION.Within one year after the date of the enact-
ment of this section, the Secretary of Labor shall, pursuant to sec-
tion 6 of the Occupational Safety and Health Act of 1970, promul-
gate standards for the health and safety protection of employees
engaged in hazardous waste operations.
(b) PROPOSED STANDARDS.The Secretary of Labor shall issue
proposed regulations on such standards which shall include, but
need not be limited to, the following worker protection provisions:
(1) SITE ANALYSIS.Requirements for a formal hazard analy-
sis of the site and development of a site specific plan for
worker protection.
(2) TRAINING.Requirements for contractors) to provide ini-
tial and routine training of workers before such workers are
permitted to engage in hazardous waste operations which
would expose them to toxic substances.
(3) MEDICAL SURVEILLANCE.A program of regular medical
examination, monitoring, and surveillance of workers engaged
in hazardous waste operations which would expose them to
toxic substances.
(4) PROTECTIVE EQUIPMENT.Requirements for appropriate
personal protective equipment, clothing, and respirators for
work in hazardous waste operations.
(5) ENGINEERING CONTROLS.Requirements for engineering
controls concerning the use of equipment and exposure of
workers engaged in hazardous waste operations.
(6) MAXIMUM EXPOSURE LIMITS.Requirements for maximum
exposure limitations for workers engaged in hazardous waste
operations, including necessary monitoring and assessment
procedures.
(7) INFORMATIONAL PROGRAM.A program to inform workers
engaged in hazardous waste operations of the nature and
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degree of toxic exposure likely as a result of such hazardous
waste operations.
(8) HANDLING.Requirements for the handling, transporting,
labeling, and disposing of hazardous wastes.
(9) NEW TECHNOLOGY PROGRAM.A program for the introduc-
tion of new equipment or technologies that will maintain
worker protections.
(10) DECONTAMINATION PROCEDURES.Procedures for decon-
tamination.
(11) EMERGENCY RESPONSE.Requirements for emergency re-
sponse and protection of workers engaged in hazardous waste
operations.
(c) FINAL REGULATIONS.Final regulations under subsection (a)
shall take effect one year after the date they are promulgated. In
promulgating final regulations on standards under subsection (a),
the Secretary of Labor shall include each of the provisions listed in
paragraphs (1) through (11) of subsection (b) unless the Secretary
determines that the evidence in the public record considered as a
whole does not support inclusion of any such provision.
(d) SPECIFIC TRAINING STANDARDS.
(1) OFF-SITE INSTRUCTION; FIELD EXPERIENCE.Standards pro-
mulgated under subsection (a) shall include training standards
requiring that general site workers (such as equipment opera-
tors, general laborers, and other supervised personnel) engaged
in hazardous substance removal or other activities which
expose or potentially expose such workers to hazardous sub-
stances receive a minimum of 40 hours of initial instruction off
the site, and a minimum of three days of actual field experi-
ence under the direct supervision of a trained, experienced su-
pervisor, at the time of assignment. The requirements of the
preceding sentence shall not apply to any general site worker
who has received the equivalent of such training. Workers who
may be exposed to unique or special hazards shall be provided
additional training.
(2) TRAINING OF SUPERVISORS.Standards promulgated under
subsection (a) shall include training standards requiring that
onsite managers and supervisors directly responsible for the
hazardous waste operations (such as foremen) receive the same
training as general site workers set forth in paragraph (1) of
this subsection and at least eight additional hours of special-
ized training on managing hazardous waste operations. The re-
quirements of the preceding sentence shall not apply to any
person who has received the equivalent of such training.
(3) CERTIFICATION; ENFORCEMENT.Such training standards
shall contain provisions for certifying that general site work-
ers, onsite managers, and supervisors have received the speci-
fied training and shall prohibit any individual who has not re-
ceived the specified training from engaging in hazardous waste
operations covered by the standard.
(4) TRAINING OF EMERGENCY RESPONSE PERSONNEL.Such
training standards shall set forth requirements for the training
of workers who are responsible for responding to hazardous
emergency situations who may be exposed to toxic substances
in carrying out their responsibilities.
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(e) INTERIM REGULATIONS.The Secretary of Labor shall issue in-
terim final regulations under this section within 60 days after the
enactment of this section which shall provide no less protection
under this section for workers employed by contractors and emer-
gency response workers than the protections contained in the Envi-
ronmental Protection Agency Manual (1981) "Health and Safety
Requirements for Employees Engaged in Field Activities" and ex-
isting standards under the Occupational Safety and Health Act of
1970 found in subpart C of part 1926 of title 29 of the Code of Fed-
eral Regulations. Such interim final regulations shall take effect
upon issuance and shall apply until final regulations become effec-
tive under subsection (c).
(f) COVERAGE OF CERTAIN STATE AND LOCAL EMPLOYEES.Not
later than 90 days after the promulgation of final regulations
under subsection (a), the Administrator shall promulgate standards
identical to those promulgated by the Secretary of Labor under
subsection (a). Standards promulgated under this subsection shall
apply to employees of State and local governments in each State
which does not have in effect an approved State plan under section
18 of the Occupational Safety and Health Act of 1970 providing for
standards for the health and safety protection of employees en-
gaged in hazardous waste operations.
(g) GRANT PROGRAM.
(1) GRANT PURPOSES.Grants for the training and education
of workers who are or may be engaged in activities related to
hazardous waste removal or containment or emergency re-
sponse may be made under this subsection.
(2) ADMINISTRATION.Grants under this subsection shall be
administered by the National Institute of Environmental
Health Sciences.
(3) GRANT RECIPIENTS.Grants shall be awarded to nonprofit
organizations which demonstrate experience in implementing
and operating worker health and safety training and education
programs and demonstrate the ability to reach and involve in
training programs target populations of workers who are or
will be engaged in hazardous waste removal or containment or
emergency response operations.
SEC 127. LIABILITY LIMITS FOR OCEAN INCINERATION VESSELS.
* ******
(d) SAVINGS CLAUSE.Section 106 of the Marine Protection, Re-
search, and Sanctuaries Act of 1972 is amended by adding the fol-
lowing new subsection at the end thereof:
"(h) SAVINGS CLAUSE.Nothing in this Act shall restrict, affect
or modify the rights of any person (1) to seek damages or enforce-
ment of any standard or limitation under State law, including
State common law, or (2) to seek damages under other Federal law,
including maritime tort law, resulting from noncpmpliance with
any requirement of this Act or any permit under this Act.".
SEC. 203. STATE PROCEDURAL REFORM.
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(b) EFFECTIVE DATE.The amendment made by subsection (a) of
this section shall take effect with respect to actions brought after
December 11, 1980.
SEC. 205. CLEANUP OF PETROLEUM FROM LEAKING UNDERGROUND
STORAGE TANKS.
(a) DEFINITION OF PETROLEUM.Section 900H2XB) of the Solid
Waste Disposal Act is amended by striking out all that follows "pe-
troleum" and inserting in lieu thereof a period. Section 9001 of
such Act is amended by adding at the end thereof the following:
"(8) The term "petroleum" means petroleum, including
crude oil or any fraction thereof which is liquid at standard
conditions of temperature and pressure (60 degrees Fahrenheit
and 14.7 pounds per square inch absolute).
(b) STATE INVENTORIES.Section 9002 of the Solid Waste Disposal
Act is amended by adding the following new subsection at the end
thereof:
"(c) STATE INVENTORIES.Each State shall make 2 separate in-
ventories of all underground storage tanks in such State containing
regulated substances. One inventory shall be made with respect to
petroleum and one with respect to other regulated substances. In
making such inventories, the State shall utilize and aggregate the
data in the notification forms submitted pursuant to subsections (a)
and (b) of this section. Each State shall submit such aggregated
data to the Administrator not later than 270 days after the enact-
ment of the Superfund Amendments and Reauthorization Act of
1986.
(c) FINANCIAL RESPONSIBILITY.
(1) REQUIREMENTS.Section 9003(c) of the Solid Waste Dis-
posal Act is amended by striking "and" at the end of para-
graph (4), striking the period at the end of paragraph (5) and
substituting "; and" and by adding the following new para-
graph at the end thereof:
"(6) requirements for maintaining evidence of financial re-
sponsibility for taking corrective action and compensating
third parties for bodily injury and property damage caused by
sudden and nonsudden accidental releases arising from operat-
ing an underground storage tank".
(2) CONFORMING AMENDMENT.Section 9003(d) of such Act is
amended by striking out paragraph (1) and renumbering para-
graphs (2) through (5) as paragraphs (1) through (4), respective-
ly.
(3) OTHER METHODS.Section 9003(dXD of such Act (as redes-
ignated by paragraph (2) of this subsection) is amended by
striking out "or" after "credit," and by striking out the period
at the end thereof and inserting in lieu thereof the following:
"or any other method satisfactory to the Administrator.".
(4) Section 9003(d) of such Act is further amended by adding
at the end thereof the following new paragraph:
"(5XA) The Administrator, in promulgating financial respon-
sibility regulations under this section, may establish an
amount of coverage for particular classes or categories of un-
derground storage tanks containing petroleum which shall sat-
isfy such regulations and which shall not be less than
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155
$1,000,000 for each occurrence with an appropriate aggregate
requirement.
"(B) The Administrator may set amounts lower than the
amounts required by subparagraph (A) of this paragraph for
underground storage tanks containing petroleum, which are at
facilities not engaged in petroleum production, refining, or
marketing and which are not used to handle substantial quan-
tities of petroleum.
"(C) In establishing classes and categories for purposes of
this paragraph, the Administrator may consider the following
factors:
"(i) The size, type, location, storage, and handling capac-
ity of underground storage tanks in the class or category
and the volume of petroleum handled by such tanks.
"(ii) The likelihood of release and the potential extent of
damage from any release from underground storage tanks
in the class or category.
"(iii) The economic impact of the limits on the owners
and operators of each such class or category, particularly
relating to the small business segment of the petroleum
marketing industry.
"(iv) The availability of methods of financial responsibil-
ity in amounts greater than the amount established by
this paragraph.
"(v) Such other factors as the Administrator deems per-
tinent.
"(D) The Administrator may suspend enforcement of the fi-
nancial responsibility requirements for a particular class or
category of underground storage tanks or in a particular State,
if the Administrator makes a determination that methods of fi-
nancial responsibility satisfying the requirements of this sub-
section are not generally available for underground storage
tanks in that class or category, and
"(i) steps are being taken to form a risk retention group
for such class of tanks; or
"(ii) such State is taking steps to establish a fund pursu-
ant to section 9004(cXD of this Act to be submitted as evi-
dence of financial responsibility.
A suspension by the Administrator pursuant to this paragraph
shall extend for a period not to exceed 180 days. A determina-
tion to suspend may be made with respect to the same class or
category or for the same State at the end of such period, but
only if substantial progress has been made in establishing a
risk retention group, or the owners or operators in the class or
category demonstrate, and the Administrator finds, that the
formation of such a group is not possible and that the State is
unable or unwilling to establish such a fund pursuant to clause
(ii).".
(d) EPA RESPONSE PROGRAM.Section 9003 of the Solid Waste
Disposal Act is amended by adding after subsection (g) the follow-
ing new subsection:
"(h) EPA RESPONSE PROGRAM FOR PETROLEUM.
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"(1) BEFORE REGULATIONS.Before the effective date of regu-
lations under subsection (c), the Administrator (or a State pur-
suant to paragraph (7)) is authorized to
"(A) require the owner or operator of an underground
storage tank to undertake corrective action with respect to
any release of petroleum when the Administrator (or the
State) determines that such corrective action will be done
properly and promptly by the owner or operator of the un-
derground storage tank from which the release occurs; or
"(B) undertake corrective action with respect to any re-
lease of petroleum into the environment from an under-
ground storage tank if such action is necessary, in the
judgment of the Administrator (or the State), to protect
human health and the environment.
The corrective action undertaken or required under this para-
graph shall be such as may be necessary to protect human
health and the environment. The Administrator shall use
funds in the Leaking Underground Storage Tank Trust Fund
for payment of costs incurred for corrective action under sub-
paragraph (B), enforcement action under subparagraph (A),
and cost recovery under paragraph (6) of this subsection. Sub-
ject to the priority requirements of paragraph (3), the Adminis-
trator (or the State) shall give priority in undertaking such ac-
tions under subparagraph (B) to cases where the Administrator
(or the State) cannot identify a solvent owner or operator of
the tank who will undertake action properly.
"(2) AFTER REGULATIONS.Following the effective date of reg-
ulations under subsection (c), all actions or orders of the Ad-
ministrator (or a State pursuant to paragraph (7)) described in
paragraph (1) of this subsection shall be in conformity with
such regulations. Following such effective date, the Adminis-
trator (or the State) may undertake corrective action with re-
spect to any release of petroleum into the environment from
an underground storage tank only if such action is necessary,
in the judgment of the Administrator (or the State), to protect
human health and the environment and one or more of the fol-
lowing situations exists:
"(A) No person can be found, within 90 days or such
shorter period as may be necessary to protect human
health and the environment, who is
"(i) an owner or operator of the tank concerned,
"(ii) subject to such corrective action regulations,
and
"(iii) capable of carrying out such corrective action
properly.
"(B) A situation exists which requires prompt action by
the Administrator (or the State) under this paragraph to
protect human health and the environment.
"(C) Corrective action costs at a facility exceed the
amount of coverage required by the Administrator pursu-
ant to the provisions of subsections (c) and (dX5) of this sec-
tion and, considering the class or category of underground
storage tank from which the release occurred, expendi-
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tures from the Leaking Underground Storsige Tank Trust
Fund are necessary to assure an effective corrective action.
"(D) The owner or operator of the tank has failed or re-
fused to comply with an order of the Administrator under
this subsection or section 9006 or with the order of a State
under this subsection to comply with the corrective action
regulations.
"(3) PRIORITY OF CORRECTIVE ACTIONS.The Administrator (or
a State pursuant to paragraph (7)) shall give priority in under-
taking corrective actions under this subsection, and in issuing
orders requiring owners or operators to undertake such ac-
tions, to releases of petroleum from underground storage tanks
which pose the greatest threat to human health and the envi-
ronment.
"(4) CORRECTIVE ACTION ORDERS.The Administrator is au-
thorized to issue orders to the owner or operator of an under-
ground storage tank to carry out subparagraph (A) of para-
graph (1) or to carry out regulations issued under subsection
(cX4). A State acting pursuant to paragraph (7) of this subsec-
tion is authorized to carry out subparagraph (A) of paragraph
(1) only until the State's program is approved by the Adminis-
trator under section 9004 of this subtitle. Such orders shall be
issued and enforced in the same manner and subject to the
same requirements as orders under section 9006.
"(5) ALLOWABLE CORRECTIVE ACTIONS.The corrective actions
undertaken by the Administrator (or a State pursuant to para-
graph (7)) under paragraph (1) or (2) may include temporary or
permanent relocation of residents and alternative household
water supplies. In connection with the performance of any cor-
rective action under paragraph (1) or (2), the Administrator
may undertake an exposure assessment as defined in para-
graph (10) of this subsection or provide for such an assessment
in a cooperative agreement with a State pursuant to paragraph
(7) of this subsection. The costs of any such assessment may be
treated as corrective action for purposes of paragraph (6), relat-
ing to cost recovery.
(6) RECOVERY or COSTS.
"(A) IN GENERAL.Whenever costs have been incurred
by the Administrator, or by a State pursuant to paragraph
(7), for undertaking corrective action or enforcement
action with respect to the release of petroleum from an un-
derground storage tank, the owner or operator of such
tank shall be liable to the Administrator or the State for
such costs. The liability under this paragraph shall be con-
strued to be the standard of liability which obtains under
section 311 of the Federal Water Pollution Control Act.
"(B) RECOVERY.In determining the equities for seeking
the recovery of costs under subparagraph (A), the Adminis-
trator (or a State pursuant to paragraph (7) of this subsec-
tion) may consider the amount of financial responsibility
required to be maintained under subsections (c) and (dX5)
of this section and the factors considered in establishing
such amount under subsection (dX5).
"(C) EFFECT ON LIABILITY.
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"(i) No TRANSFERS OF LIABILITY.No indemnifica-
tion, hold harmless, or similar agreement or convey-
ance shall be effective to transfer from the owner or
operator of any underground storage tank or from any
person who may be liable for a release or threat of re-
lease under this subsection, to any other person the li-
ability imposed under this subsection. Nothing in this
subsection shall bar any agreement to insure, hold
harmless, or indemnify a party to such agreement for
any liability under this section.
"(ii) No BAR TO CAUSE OF ACTION.Nothing in this
subsection, including the provisions of clause (i) of this
subparagraph, shall bar a cause of action that an
owner or operator or any other person subject to li-
ability under this section, or a guarantor, has or would
have, by reason of subrogation or otherwise against
any person.
"(D) FACILITY.For purposes of this paragraph, the term
'facility' means, with respect to any owner or operator, all
underground storage tanks used for the storage of petrole-
um which are owned or operated by such owner or opera-
tor and located on a single parcel of property (or on any
contiguous or adjacent property).
"(7) STATE AUTHORITIES.
"(A) GENERAL.A State may exercise the authorities in
paragraphs (1) and (2) of this subsection, subject to the
terms and conditions of paragraphs (3), (5), (9), (10), and
(11), and including the authorities of paragraphs (4), (6),
and (8) of this subsection if
"(i) the Administrator determines that the State has
the capabilities to carry out effective corrective actions
and enforcement activities; and
"(ii) the Administrator enters into a cooperative
agreement with the State setting out the actions to be
undertaken by the State.
The Administrator may provide funds from the Leaking
Underground Storage Tank Trust Fund for the reasonable
costs of the State's actions under the cooperative agree-
ment.
"(B) Goer SHARE.Following the effective date of the
regulations under subsection (c) of this section, the State
snail pay 10 per centum of the cost of corrective actions
undertaken either by the Administrator or by the State
under a cooperative agreement, except that the Adminis-
trator may take corrective action at a facility where imme-
diate action is necessary to respond to an imminent and
substantial endangerment to human health or the environ-
ment if the State fails to pay the cost share.
"(8) EMERGENCY PROCUREMENT POWERS.Notwithstanding
any other provision of law, the Administrator may authorize
the use of such emergency procurement powers as he deems
necessary.
"(9) DEFINITION OF OWNER.As used in this subsection, the
term 'owner' does not include any person who, without partici-
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pating in the management of an underground storage tank and
otherwise not engaged in petroleum production, refining, and
marketing, holds indicia of ownership primarily to protect the
owner's security interest in the tank.
"(10) DEFINITION OF EXPOSURE ASSESSMENT.As used in this
subsection, the term 'exposure assessment' means an assess-
ment to determine the extent of exposure of, or potential for
exposure of, individuals to petroleum from a release from an
underground storage tank based on such factors as the nature
and extent of contamination and the existence of or potential
for pathways of human exposure (including ground or surface
water contamination, air emissions, and food chain contamina-
tion), the size of the community within the likely pathways of
exposure, and the comparison of expected human exposure
levels to the short-term and long-term health effects associated
with identified contaminants and any available recommended
exposure or tolerance limits for such contaminants. Such as-
sessment shall not delay corrective action to abate immediate
hazards or reduce exposure.
"(11) FACILITIES WITHOUT FINANCIAL RESPONSIBILITY.At any
facility where the owner or operator has failed to maintain evi-
dence of financial responsibility in amounts at least equal to
the amounts established by subsection (dX5XA) of this section
(or a lesser amount if such amount is applicable to such facili-
ty as a result of subsection (dXSXB) of this section) for what-
ever reason the Administrator shall expend no monies from
the Leaking Underground Storage Tank Trust Fund to clean
up releases at such facility pursuant to the provisions of para-
graph (1) or (2) of this subsection. At such facilities the Admin-
istrator shall use the authorities provided in subparagraph (A)
of paragraph (1) and paragraph (4) of this subsection and sec-
tion 9006 of this subtitle to order corrective action to clean up
such releases. States acting pursuant to paragraph (7) of this
subsection shall use the authorities provided in subparagraph
(A) of paragraph (1) and paragraph (4) of this subsection to
order corrective action to clean up such releases. Notwith-
standing the provisions of this paragraph, the Administrator
may use monies from the fund to take the corrective actions
authorized by paragraph (5) of this subsection to protect
human health at such facilities and shall seek full recovery of
the costs of all such actions pursuant to the provisions of para-
graph (6XA) of this subsection and without consideration of the
factors in paragraph (6XB) of this subsection. Nothing in this
paragraph shall prevent the Administrator (or a State pursu-
ant to paragraph (7) of this subsection) from talking corrective
action at a facility where there is no solvent owner or operator
or where immediate action is necessary to respond to an immi-
nent and substantial endangerment of human health or the en-
vironment.".
(e) FINANCIAL RESPONSIBILITY IN STATE PROGRAMS.
(1) Section 9004(cXD of the Solid Waste Disposal Act is
amended by striking out "financed by fees on tank owners and
operators and".
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(2) Section 9004(cX2) of the Solid Waste Disposal Act is
amended by striking out "or" after "credit," in the first sen-
tence and by striking out the period at the end thereof and in-
serting in lieu thereof the following: "or any other method sat-
isfactory to the Administrator.". Such section is further
amended by adding after the word "terms" in the second sen-
tence the following: "including the amount of coverage re-
quired for various classes and categories of underground stor-
age tanks pursuant to section 9003(dX5),".
(f) AUTHORITY TO ENTER FOR CORRECTIVE ACTIONS.
(1) Section 9005(a) of the Solid Waste Disposal Act is amend-
ed by inserting the words "taking any corrective action" after
the word "study", inserting the words "acting pursuant to sub-
section (hX7) of section 9003 or" after the words "or representa-
tive of a State", striking the word "and" before the words
"permit such officer", and inserting the words "and permit
such officer to have access for corrective action" after the
words "relating to such tanks" in the first sentence thereof.
Such section is further amended by inserting the words
"taking corrective action," after the word "study," in the
second sentence thereof.
(2) Section 9005Xa) of the Solid Waste Disposal Act is amend-
ed by striking the word "and" at the end of paragraph (2), in-
serting the word "and" after paragraph (3) and adding the fol-
lowing new paragraph
"(4) to take corrective action.
(3) Section 9005 of the Solid Waste Disposal Act is amended
by changing the heading thereof to read as follows
"INSPECTIONS, MONITORING, TESTING AND CORRECTIVE ACTION".
(g) COORDINATION WITH OTHER LAWS.Section 9008 of the Solid
Waste Disposal Act is amended to read as follows:
"STATE AUTHORITY
"SEC. 9008. Nothing in this subtitle shall preclude or deny any
right of any State or political subdivision thereof to adopt or en-
force any regulation, requirement, or standard of performance re-
specting underground storage tanks that is more stringent than a
regulation, requirement, or standard of performance in effect
under this subtitle or to impose any additional liability with re-
spect to the release of regulated substances within such State or
political subdivision.
(h) POLLUTION LIABILITY INSURANCE.
(1) STUDY.The Comptroller General shall conduct a study
of the availability of pollution liability insurance, leak insur-
ance, and contamination insurance for owners and operators of
petroleum storage and distribution facilities. The study shall
assess the current and projected extent to which private insur-
ance can contribute to the financial responsibility of owners
and operators of underground storage tanks and the ability of
owners and operators of underground storage tanks to main-
tain financial responsibility through other methods. The study
shall consider the experience of owners and operators of
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marine vessels in getting insurance for their liabilities under
the Federal Water Pollution Control Act and the operation of
the Water Quality Insurance Syndicate.
(2) REPORT.The Comptroller General shall report the find-
ings under this subsection to the Congress within 15 months
after the enactment of this subsection. Such report shall in-
clude recommendations for legislative or administrative
changes that will enable owners and operators of underground
storage tanks to maintain financial responsibility sufficient to
provide all clean-up costs and damages that may result from
reasonably foreseeable releases and events.
(i) CRIMINAL PENALTIES RELATING TO USED OIL.Subtitle C of the
Solid Waste Disposal Act is amended as follows:
(1) In paragraphs (4) and (5) of section 3008(d) after "hazard-
ous waste" insert "or any used oil not identified or listed as a
hazardous waste under this subtitle".
(2) Delete "accompanied by a manifest; or" in paragraph (5)
and insert "accompanied by a manifest;".
(3) Insert "; or" after paragraph (6).
(4) Add the following new paragraph after paragraph (6):
"(7) knowingly stores, treats, transports, or causes to be
transported, disposes of, or otherwise handles any used oil not
identified or listed as a hazardous waste under subtitle C of the
Solid Waste Disposal Act
"(A) in knowing violation of any material condition or
requirement of a permit under this subtitle C; or
"(B) in knowing violation of any material condition or
requirement of any applicable regulations or standards
under this Act;
(5) In section 3008(e):
(A) Insert "or used oil not identified or listed as a haz-
ardous waste under this subtitle" immediately after "this
subtitle".
(B) Strike "or" immediately before "(6)".
(C) Insert ", or (7)" immediately after "(6)".
(j) STATE PROGRAMS FOR USED OIL.Section 3006 of the Solid
Waste Disposal Act is amended by adding the following new sub-
section at the end thereof:
"(h) STATE PROGRAMS FOR USED OIL.In the case of used oil
which is not listed or identified under this subtitle as a hazardous
waste but which is regulated under section 3014, the provisions of
this section regarding State programs shall apply in the same
manner and to the same extent as such provisions apply to hazard-
ous waste identified or listed under this subtitle.
SEC. 209. RESEARCH, DEVELOPMENT, AND DEMONSTRATION.
(a) PURPOSE.The purposes of this section are as follows:
(1) To establish a comprehensive and coordinated Federal
program of research, development, demonstration, and training
for the purpose of promoting the development of alternative
and innovative treatment technologies that can be used in re-
sponse actions under the CERCLA program, to provide incen-
tives for the development and use of such technologies, and to
improve the scientific capability to assess, detect and evaluate
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the effects on and risks to human health from hazardous sub-
stances.
(2) To establish a basic university research and education
program within the Department of Health and Human Serv-
ices and a research, demonstration, and training program
within the Environmental Protection Agency.
(3) To reserve certain funds from the Hazardous Substance
Trust Fund to support a basic research program within the De-
partment of Health and Human Services, and an applied and
developmental research program within the Environmental
Protection Agency.
(4) To enhance the Environmental Protection Agency's inter-
nal research capabilities related to CERCLA activities, includ-
ing site assessment and technology evaluation.
(5) To provide incentives for the development of alternative
and innovative treatment technologies in a manner that sup-
plements or coordinates with, but does not compete with or du-
plicate, private sector development of such technologies.
SEC. 211. DEPARTMENT OF DEFENSE ENVIRONMENTAL RESTORATION
PROGRAM.
(a) IN GENERAL(1) Title 10, United States Code, is amended
(A) by redesignating section 2701 as section 2721; and
(B) by inserting after chapter 159 the following new chapter:
"CHAPTER 160ENVIRONMENTAL RESTORATION
"Sec.
"2701. Environmental restoration program.
"2702. Research, development, ana demonstration program.
"2703. Environmental restoration transfer account.
"2704. Commonly found unregulated hazardous substances.
"2705. Notice of environmental restoration activities.
"2706. Annual report to Congress.
"2707. Definitions.
"§ 2701. Environmental restoration program
"(a) ENVIRONMENTAL RESTORATION PROGRAM.
"(1) IN GENERAL.The Secretary of Defense shall carry out a
program of environmental restoration at facilities under the
jurisdiction of the Secretary. The program shall be known as
the 'Defense Environmental Restoration Program'.
"(2) APPLICATION OF SECTION 120 or CERCLA.Activities of the
program described in subsection (bXD shall be carried out sub-
ject to, and in a manner consistent with, section 120 (relating
to Federal facilities) of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 (hereinafter in
this chapter referred to as 'CERCLA') (42 U.S.C. 9601 et seq.).
"(3) CONSULTATION WITH EPA.The program shall be carried
out in consultation with the Administrator of the Environmen-
tal Protection Agency.
"(4) ADMINISTRATIVE OFFICE WITHIN OSD.The Secretary
shall identify an office within the Office of the Secretary which
shall have responsibility for carrying out the program.
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"(b) PROGRAM GOALS.Goals of the program shall include the fol-
lowing:
"(1) The identification, investigation, research and develop-
ment, and cleanup of contamination from hazardous sub-
stances, pollutants, and contaminants.
"(2) Correction of other environmental damage (such as de-
tection and disposal of unexploded ordnance) which creates an
imminent and substantial endangerment to the public health
or welfare or to the environment.
"(3) Demolition and removal of unsafe buildings and struc-
tures, including buildings and structures of the Department of
Defense at sites formerly used by or under the jurisdiction of
the Secretary.
"(c) RESPONSIBILITY FOR RESPONSE ACTIONS.
"(1) BASIC RESPONSIBILITY.The Secretary shall carry out (in
accordance with the provisions of this chapter and CERCLA)
all response actions with respect to releases of hazardous sub-
stances from each of the following:
"(A) Each facility or site owned by, leased to, or other-
wise possessed by the United States and under the jurisdic-
tion of the Secretary.
"(B) Each facility or site which was under the jurisdic-
tion of the Secretary and owned by, leased to, or otherwise
possessed by the United States at the time of actions lead-
ing to contamination by hazardous substances.
"(C) Each vessel owned or operated by the Department
of Defense.
"(2) OTHER RESPONSIBLE PARTIES.Paragraph (1) shall not
apply to a removal or remedial action if the Administrator has
provided for response action by a potentially responsible
person in accordance with section 122 of CERCLA (relating to
settlements).
"(3) "TATE FEES AND CHARGES.The Secretary shall pay fees
and ci,.urges imposed by State authorities for permit services
for the disposal of hazardous substances on lands which are
under the jurisdiction of the Secretary to the same extent that
nongovernmental entities are required to pay fees and charges
imposed by State authorities for permit services. The preceding
sentence shall not apply with respect to a payment that is the
responsibility of a lessee, contractor, or other private person.
"(d) SERVICES OF OTHER AGENCIES.The Secretary may enter
into agreements on a reimbursable basis with any other Federal
agency, and on a reimbursable or other basis with any State or
local government agency, to obtain the services of that agency to
assist the Secretary in carrying put any of the Secretary's responsi-
bilities under this section. Services which may be obtained under
this subsection include the identification, investigation, and clean-
up of any off-site contamination possibly resulting from the release
of a hazardous substance or waste at a facility under the Secre-
tary's jurisdiction.
(e) RESPONSE ACTION CONTRACTORS.The provisions of section
119 of CERCLA apply to response action contractors (as defined in
that section) who carry out response actions under this section.
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"§ 2702. Research, development, and demonstration program
"(a) PROGRAM.As part of the Defense Environmental Restora-
tion Program, the Secretary of Defense shall carry out a program
of research, development, and demonstration with respect to haz-
ardous wastes. The program shall be carried out in consultation
and cooperation with the Administrator and the advisory council
established under section 311(aX5) of CERCLA. The program shall
include research, development, and demonstration with respect to
each of the following:
"(1) Means of reducing the quantities of hazardous waste
generated by activities and facilities under the jurisdiction of
the Secretary.
"(2) Methods of treatment, disposal, and management (in-
cluding recycling and detoxifying) of hazardous waste of the
types and quantities generated by current and former activi-
ties of the Secretary and facilities currently and formerly
under the jurisdiction of the Secretary.
"(3) Identifying more cost-effective technologies for cleanup
of hazardous substances.
"(4) Toxicological data collection and methodology on risk of
exposure to hazardous waste generated by the Department of
Defense.
"(5) The testing, evaluation, and field demonstration of any
innovative technology, processes, equipment, or related train-
ing devices which may contribute to establishment of new
methods to control, contain, and treat hazardous substances, to
be carried out in consultation and cooperation with, and to the
extent possible in the same manner and standards as, testing,
evaluation, and field demonstration carried out by the Admin-
istrator, acting through the office of technology demonstration
of the Environmental Protection Agency.
"(b) SPECIAL PERMIT.The Administrator may use the authori-
ties of section 3005Xg) of the Solid Waste Disposal Act (42 U.S.C.
6925(g)) to issue a permit for testing and evaluation which receives
support under this section.
(c) CONTRACTS AND GRANTS.The Secretary may enter into con-
tracts and cooperative agreements with, and make grants to, uni-
versities, public and private profit and nonprofit entities, and other
persons to carry out the research, development, and demonstration
authorized under this section. Such contracts may be entered into
only to the extent that appropriated funds are available for that
purpose.
"(d) INFORMATION COLLECTION AND DISSEMINATION.
"(1) IN GENERAL.The Secretary shall develop, collect, evalu-
ate, and disseminate information related to the use (or poten-
tial use) of the treatment, disposal, and management technol-
ogies that are researched, developed, and demonstrated under
this section.
"(2) ROLE OP EPA.The functions of the Secretary under
paragraph (1) shall be carried out in cooperation and consulta-
tion with the Administrator. To the extent appropriate and
agreed upon by the Administrator and the Secretary, the Ad-
ministrator shall evaluate and disseminate such information
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through the office of technology demonstration of the Environ-
mental Protection Agency.
"§ 2703. Environmental restoration transfer account
"(a) ESTABLISHMENT OF TRANSFER ACCOUNT.
"(I) ESTABLISHMENT. There is hereby established in the De-
gartment of Defense an account to be known as the 'Defense
nvironmental Restoration Account' (hereinafter in this sec-
tion referred to as the 'transfer account'). All sums appropri-
ated to carry out the functions of the Secretary of Defense re-
lating to environmental restoration under this chapter or any
other provision of law shall be appropriated to the transfer ac-
count.
"(2) REQUIREMENT OF AUTHORIZATION OF APPROPRIATIONS.
No funds may be appropriated to the transfer account unless
such sums have been specifically authorized by law.
"(3) AVAILABILITY OF FUNDS IN TRANSFER ACCOUNT.Amounts
appropriated to the transfer account shall remain available
until transferred under subsection (b).
"(b) AUTHORITY To TRANSFER TO OTHER DOD ACCOUNTS.
Amounts in the transfer account shall be available to be trans-
ferred by the Secretary to any appropriation account or fund of the
Department for obligation from that account or fund. Funds so
transferred shall be merged with and available for the same pur-
poses and for the same period as the account or fund to which
transferred.
"(c) OBLIGATION OF TRANSFERRED AMOUNTS.Funds transferred
under subsection (b) may only be obligated or expended from the
account or fund to which transferred in order to carry out the func-
tions of the Secretary under this chapter or environmental restora-
tion functions under any other provision of law.
"(d) BUDGET REPORTS.In proposing the Budget for any fiscal
year pursuant to section 1105 of title 31, the President shall set
forth separately the amount requested for environmental restora-
tion programs of the Department of Defense under this chapter or
any other Act.
(e) AMOUNTS RECOVERED UNDER CERCLA.Amounts recovered
under section 107 of CERCLA for response actions of the Secretary
shall be credited to the transfer account.
"§ 2704. Commonly found unregulated hazardous substances
"(a) NOTICE TO HHS.-
"(1) IN GENERAL.The Secretary of Defense shall notify the
Secretary of Health and Human Services of the hazardous sub-
stances which the Secretary of Defense determines to be the
most commonly found unregulated hazardous substances at fa-
cilities under the Secretary's jurisdiction. The notification shall
be of not less than the 25 most widely used such substances.
"(2) DEFINITION.In this subsection, the term "unregulated
hazardous substance" means a hazardous substance
"(A) for which no standard, requirement, criteria, or lim-
itation is in effect under the Toxic Substances Control Act,
the Safe Drinking Water Act, the Clean Air Act, or the
Clean Water Act; and
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"(B) for which no water quality criteria are in effect
under any provision of the Clean Water Act.
"(b) TOXICOLOGICAL PROFILES.The Secretary of Health and
Human Services shall take such steps as necessary to ensure the
timely preparation of toxicological profiles of each of the sub-
stances of which the Secretary is notified under subsection (a). The
profiles of such substances shall include each of the following:
"(1) The examination, summary, and interpretation of avail-
able toxicological information and epidemiologic evaluations on
a hazardous substance in order to ascertain the levels of signif-
icant human exposure for the substance and the associated
acute, subacute, and chronic health effects.
"(2) A determination of whether adequate information on
the health effects of each substance is available or in the proc-
ess of development to determine levels of exposure which
present a significant risk to human health of acute, subacute,
and chronic health effects.
"(3) Where appropriate, toxicological testing directed toward
determining the maximum exposure level of a hazardous sub-
stance that is safe for humans.
"(c) DOD SUPPORT.The Secretary of Defense shall transfer to
the Secretary of Health and Human Services such toxicological
data, such sums from amounts appropriated to the Department of
Defense, and such personnel of the Department of Defense as may
be necessary (1) for the preparation of toxicological profiles under1
subsection (b) or (2) for other health related activities under section
104(i) of CERCLA. The Secretary of Defense and the Secretary of
Health and Human Services shall enter into a memorandum of un-
derstanding regarding the manner in which this section shall be
carried out, including the manner for transferring funds and per-
sonnel and for coordination of activities under this section.
"(d) EPA HEALTH ADVISORIES.
"(1) PREPARATION.At the request of the Secretary of De-
fense, the Administrator shall, in a timely manner, prepare
health advisories on hazardous substances. Such an advisory
shall be prepared on each hazardous substance
"(A) for which no advisory exists;
"(B) which ia found to threaten drinking water; and
"(C) which is emanating from a facility under the juris-
diction of the Secretary.
"(2) CONTENT OF HEALTH ADVISORIES.Such health advisories
shall provide specific advice on the levels of contaminants in
drinking water at which adverse health effects would not be
anticipated and which include a margin of safety so as to pro-
tect the most sensitive members of the population at risk. The
advisories shall provide data on one-day, 10-day, and longer-
term exposure periods where available toxicological data exist.
"(3) DOD SUPPORT FOR HEALTH ADVISORIES.The Secretary of
Defense shall transfer to the Administrator such toxicological
data, such sums from amounts appropriated to the Department
of Defense, and such personnel of the Department of Defense
as may be necessary for the preparation of such health advisor-
ies. The Secretary and the Administrator shall enter into a
memorandum of understanding regarding the manner in
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which this subsection shall be carried out, including the
manner for transferring funds and personnel and for coordina-
tion of activities under this subsection.
"(e) CROSS REFERENCE.Section 104(i) of CERCLA applies to fa-
cilities under the jurisdiction of the Secretary of Defense in the
manner prescribed in that section.
"(f) FUNCTIONS OF HHS To BE CARRIED Our THROUGH ATSDR.
The functions of the Secretary of Health and Human Services
under this section shall be carried out through the Administrator
of the Agency of Toxic Substances and Disease Registry of the De-
partment of Health and Human Services established under section
104(i) of CERCLA.
"§ 2705. Notice of environmental restoration activities
"(a) EXPEDITED NOTICE.The Secretary of Defense shall take
such actions as necessary to ensure that the regional offices of the
Environmental Protection Agency and appropriate State and local
authorities for the State in which a facility under the Secretary's
jurisdiction is located receive prompt notice of each of the follow-
ing:
"(1) The discovery of releases or threatened releases of haz-
ardous substances at the facility.
"(2) The extent of the threat to public health and the envi-
ronment which may be associated with any such release or
threatened release.
"(3) Proposals made by the Secretary to carry out response
actions with respect to any such release or threatened release.
"(4) The initiation of any response action with respect to
such release or threatened release and the commencement of
each distinct phase of such activities.
"(b) COMMENT BY EPA AND STATE AND LOCAL AUTHORITIES.
"(1) RELEASE NOTICES.The Secretary shall ensure that the
Administrator of the Environmental Protection Agency and
appropriate State and local officials have an adequate opportu-
nity to comment on notices under paragraphs (1) and (2) of sub-
section (a).
"(2) PROPOSALS FOR RESPONSE ACTIONS.The Secretary shall
require that an adequate opportunity for timely review and
comment be afforded to the Administrator and to appropriate
State and local officials after making a proposal referred to in
subsection (aX3) and before undertaking an activity or action
referred to in subsection (aX4). The preceding sentence does not
apply if the action is an emergency removal taken because of
imminent and substantial endangerment to human health or
the environment and consultation would be impractical.
"(c) TECHNICAL REVIEW COMMITTEE.Whenever possible and
practical, the Secretary shall establish a technical review commit-
tee to review and comment on Department of Defense actions and
proposed actions with respect to releases or threatened releases of
hazardous substances at installations. Members of any such com-
mittee shall include at least one representative of the Secretary,
the Administrator, and appropriate State and local authorities and
shall include a public representative of the community involved.
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"§ 2706. Annual report to Congress
"(a) REPORT ON PROGRESS IN IMPLEMENTATION.The Secretary of
Defense shall submit to Congress a report each fiscal year describ-
ing the progress made by the Secretary during the preceding fiscal
year in implementing the requirements of this chapter.
"(b) MATTERS To BE INCLUDED.Each such report shall include
the following:
"(1) A statement for each installation under the jurisdiction
of the Secretary of the number of individual facilities at which
a hazardous substance has been identified.
"(2) The status of response actions contemplated or under-
taken at each such facility.
"(3) The specific cost estimates and budgetary proposals in-
volving response actions contemplated or undertaken at each
such facility.
"(4) A report on progress on conducting response actions at
facilities other than facilities on the National Priorities List.
"§ 2707. Definitions
"In this chapter:
"(1) The terms 'environment', 'facility', 'hazardous sub-
stance', 'person', 'release', 'removal', 'response', 'disposal', and
'hazardous waste' have the meanings given those terms in sec-
tion 101 of CERCLA (42 U.S.C. 9601).
"(2) The term 'Administrator' means the Administrator of
the Environmental Protection Agency.".
"(2) The tables of chapters at the beginning of subtitle A, and at
the beginning of part IV of subtitle A, of such title are each
amended by inserting after the item relating to chapter 159 the fol-
lowing new item:
"160. Environmental Restoration 2701".
"(b) MILITARY CONSTRUCTION PROJECTS.(1) Chapter 169 of title
10, United States Code, is amended by inserting at the end of sub-
chapter I the following new section:
"§ 2810. Construction projects for environmental response actions
"(a) Subject to subsection (b), the Secretary of Defense may carry
out a military construction project not otherwise authorized by law
(or may authorize the Secretary of a military department to carry
out such a project) if the Secretary of Defense determines that the
project is necessary to carry out a response action under chapter
160 of this title or under the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.).
"(bXD When a decision is made to carry out a military construc-
tion project under this section, the Secretary of Defense shall
submit a report in writing to the appropriate committees of Con-
gress on that decision. Each such report shall include
"(A) the justification for the project and the current estimate
of the cost of the project; and
"(B) the justification for carrying out the project under this
section.
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"(2) The project may then be carried out only after the end of the
21-day period beginning on the date the notification is received by
such committees.
"(c) In this section, the term 'response action' has the meaning
given that term in section 101 of the Comprehensive Environmen-
tal Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601).".
"(2) The table of sections at the beginning of subchapter I of such
chapter is amended by adding at the end thereof the following new
item:
"2810. Construction projects for environmental response actions.".
"(c) EFFECTIVE DATE.Section 2703(aX2) of title 10, United States
Code, as added by subsection (a), shall apply with respect to funds
appropriated for fiscal years beginning after September 30, 1986.
SEC. 213. LOVE CANAL PROPERTY ACQUISITION.
(a) CONGRESSIONAL FINDINGS.
(1) The area known as Love Canal located in the city of Niag-
ara Falls and the town of Wheatfield, New York, was the first
toxic waste site to receive national attention. As a result of
that attention Congress investigated the problems associated
with toxic waste sites and enacted CERCLA to deal with these
problems.
(2) Because Love Canal came to the Nation's attention prior
to the passage of CERCLA and because the fund under
CERCLA was not available to compensate for all of the hard-
ships endured by the citizens in the area, Congress has deter-
mined that special provisions are required. These provisions do
not affect the lawfulness, implementation, or selection of any
other response actions at Love Canal or at any other facilities.
TITLE HIEMERGENCY PLANNING AND COMMUNITY
RIGHT-TO-KNOW
SEC. 300. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.This title may be cited as the "Emergency
Planning and Community Right-To-Know Act of 1986".
(b) TABLE or CONTENTS.The table of contents of this title is as
follows:
Sec. 300. Short title; table of contents.
Subtitle AEmergency Planning and Notification
Sec. 301. Establishment of State commissions, planning districts, and local commit-
tees.
Sec. 302. Substances and facilities covered and notification.
Sec. 303. Comprehensive emergency response plans.
Sec. 304. Emergency notification.
Sec. 305. Emergency training and review of emergency systems.
Subtitle BReporting Requirements
Sec. 311. Material safety data sheets.
Sec. 312. Emergency and hazardous chemical inventory forms.
Sec. 313. Toxic chemical release forms.
Subtitle CGeneral Provisions
Sec. 321. Relationship to other law.
Sec. 322. Trade secrets.
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Sec. 323. Provision of information to health professionals, doctors, and nurses.
Sec. 324. Public availability of plans, data sheets, forms, and followup notices.
Sec. 325. Enforcement.
Sec. 326. Civil Actions.
Sec. 327. Exemption.
Sec. 328. Regulations.
Sec. 329. Definitions.
Sec. 330. Authorization of appropriations.
Subtitle AEmergency Planning and Notification
SEC. 301. ESTABLISHMENT OF STATE COMMISSIONS, PLANNING DIS-
TRICTS, AND LOCAL COMMITTEES.
(a) ESTABLISHMENT OF STATE EMERGENCY RESPONSE COMMIS-
SIONS.Not later than six months after the date of the enactment
of this title, the Governor of each State shall appoint a State emer-
gency response commission. The Governor may designate as the
State emergency response commission one or more existing emer-
gency response organizations that are State-sponsored or appoint-
ed. The Governor shall, to the extent practicable, appoint persons
to the State emergency response commission who have technical
expertise in the emergency response field. The State emergency re-
sponse commission shall appoint local emergency planning commit-
tees under subsection (c) and shall supervise and coordinate the ac-
tivities of such committees. The State emergency response commis-
sion shall establish procedures for receiving and processing re-
quests from the public for information under section 324, including
tier II information under section 312. Such procedures shall include
the designation of an official to serve as coordinator for informa-
tion. If the Governor of any State does not designate a State emer-
gency response commission within such period, the Governor shall
operate as the State emergency response commission until the Gov-
ernor makes such designation.
(b) ESTABLISHMENT OF EMERGENCY PLANNING DISTRICTS.Not
later than nine months after the date of the enactment of this title,
the State emergency response commission shall designate emergen-
cy planning districts in order to facilitate preparation and imple-
mentation of emergency plans. Where appropriate, the State emer-
gency response commission may designate existing political subdi-
visions or multijurisdictional planning organizations as such dis-
tricts. In emergency planning areas that involve more than one
State, the State emergency response commissions of all potentially
affected States may designate emergency planning districts and
local emergency planning committees by agreement. In making
such designation, the State emergency response commission shall
indicate which facilities subject to the requirements of this subtitle
are within such emergency planning district.
(c) ESTABLISHMENT OF LOCAL EMERGENCY PLANNING COMMIT-
TEES.Not later than 30 days after designation of emergency plan-
ning districts or 10 months after the date of the enactment of this
title, whichever is earlier, the State emergency response commis-
sion shall appoint members of a local emergency planning commit-
tee for each emergency planning district. Each committee shall in-
clude, at a minimum, representatives from each of the following
groups or organizations: elected State and local officials; law en-
forcement, civil defense, firefighting, first aid, health, local environ-
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mental, hospital, and transportation personnel; broadcast and print
media; community groups; and owners and operators of facilities
subject to the requirements of this subtitle. Such committee shall
appoint a chairperson and shall establish rules by which the com-
mittee shall function. Such rules shall include provisions for public
notification of committee activities, public meetings to discuss the
emergency plan, public comments, response to such comments by
the committee, and distribution of the emergency plan. The local
emergency planning committee shall establish procedures for re-
ceiving and processing requests from the public for information
under section 324, including tier II information under section 312.
Such procedures shall include the designation of an official to serve
as coordinator for information.
(d) REVISIONS.A State emergency response commission may
revise its designations and appointments under subsections (b) and
(c) as it deems appropriate. Interested persons may petition the
State emergency response commission to modify the membership of
a local emergency planning committee.
SEC. 302. SUBSTANCES AND FACILITIES COVERED AND NOTIFICATION.
(a) SUBSTANCES COVERED.
(1) IN GENERAL.A substance is subject to the requirements
of this subtitle if the substance is on the list published under
paragraph (2).
(2) LIST OP EXTREMELY HAZARDOUS SUBSTANCES.Within 30
days after the date of the enactment of this title, the Adminis-
trator shall publish a list of extremely hazardous substances.
The list shall be the same as the list of substances published in
November 1985 by the Administrator in Appendix A of the
"Chemical Emergency Preparedness Program Interim Guid-
ance".
(3) THRESHOLDS.(A) At the time the list referred to in para-
graph (2) is published the Administrator shall
(i) publish an interim final regulation establishing a
threshold planning quantity for each substance on the list,
taking into account the criteria described in paragraph (4),
and
(ii) initiate a rulemaking in order to publish final regula-
tions establishing a threshold planning quantity for each
substance on the list.
(B) The threshold planning quantities may, at the Adminis-
trator's discretion, be based on classes of chemicals or catego-
ries of facilities.
(O If the Administrator fails to publish an interim final
illation establishing a threshold planning quantity for a sub-
stance within 30 days after the date of the enactment of this
title, the threshold planning quantity for the substance shall
be 2 pounds until such time as the Administrator publishes
regulations establishing a threshold for the substance.
(4) REVISIONS.The Administrator may revise the list and
thresholds under paragraphs (2) and (3) from time to time. Any
revisions to the list shall take into account the toxicity, reac-
tivity, volatility, dispersability, combustability, or flammability
of a substance. For purposes of the preceding; sentence, the
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term "toxicity" shall include any short- or long-term health
effect which may result from a short-term exposure to the sub-
stance.
(b) FACILITIES COVERED.(1) Except as provided in section 304, a
facility is subject to the requirements of this subtitle if a substance
on the list referred to in subsection (a) is present at the facility in
an amount in excess of the threshold planning quantity established
for such substance.
(2) For purposes of emergency planning, a Governor or a State
emergency response commission may designate additional facilities
which shall be subject to the requirements of this subtitle, if such
designation is made after public notice and opportunity for com-
ment. The Governor or State emergency response commission shall
notify the facility concerned of any facility designation under this
paragraph.
(c) EMERGENCY PLANNING NOTIFICATION.Not later than seven
months after the date of the enactment of this title, the owner or
operator of each facility subject to the requirements of this subtitle
by reason of subsection (bXl) shall notify the State emergency re-
sponse commission for the State in which such facility is located
that such facility is subject to the requirements of this subtitle.
Thereafter, if a substance on the list of extremely hazardous sub-
stances referred to in subsection (a) first becomes present at such
facility in excess of the threshold planning quantity established for
such substance, or if there is a revision of such list and the facility
has present a substance on the revised list in excess of the thresh-
old planning quantity established for such substance, the owner or
operator of the facility shall notify the State emergency response
commission and the local emergency planning committee within 60
days after such acquisition or revision that such facility is subject
to the requirements of this subtitle.
(d) NOTIFICATION OF ADMINISTRATOR.The State emergency re-
sponse commission shall notify the Administrator of facilities sub-
ject to the requirements of this subtitle by notifying the Adminis-
trator of
(1) each notification received from a facility under subsection
(c), and
(2) each facility designated by the Governor or State emer-
gency response commission under subsection (bX2).
SEC. 305. COMPREHENSIVE EMERGENCY RESPONSE PLANS.
(a) PLAN REQUIRED.Each local emergency planning committee
shall complete preparation of an emergency plan in accordance
with this section not later than two years after the date of the en-
actment of this title. The committee shall review such plan once a
year, or more frequently as changed circumstances in the commu-
nity or at any facility may require.
(b) RESOURCES.Each local emergency planning committee shall
evaluate the need for resources necessary to develop, implement,
and exercise the emergency plan, and shall make recommendations
with respect to additional resources that may be required and the
means for providing such additional resources.
(c) PLAN PROVISIONS.Each emergency plan shall include (but is
not limited to) each of the following:
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(1) Identification of facilities subject to the requirements of
this subtitle that are within the emergency planning district,
identification of routes likely to be used for the transportation
of substances on the list of extremely hazardous substances re-
ferred to in section 302(a), and identification of additional fa-
cilities contributing or subjected to additional risk due to their
proximity to facilities subject to the requirements of this sub-
title, such as hospitals or natural gas facilities.
(2) Methods and procedures to be followed by facility owners
and operators and local emergency and medical personnel to
respond to any release of such substances.
(3) Designation of a community emergency coordinator and
facility emergency coordinators, who shall make determina-
tions necessary to implement the plan.
(4) Procedures providing reliable, effective, and timely notifi-
cation by the facility emergency coordinators and the commu-
nity emergency coordinator to persons designated in the emer-
gency plan, and to the public, that a release has occurred (con-
sistent with the emergency notification requirements of section
304).
(5) Methods for determining the occurrence of a release, and
the area or population likely to be affected by such release.
(6) A description of emergency equipment and facilities in
the community and at each facility in the community subject
to the requirements of this subtitle, and an identification "of
the persons responsible for such equipment and facilities.
(7) Evacuation plans, including provisions for a precaution-
ary evacuation and alternative traffic routes.
(8) Training programs, including schedules for training of
local emergency response and medical personnel.
(9) Methods and schedules for exercising the emergency plan.
(d) PROVIDING OF INFORMATION.For each facility subject to the
requirements of this subtitle:
(1) Within 30 days after establishment of a load emergency
planning committee for the emergency planning district in
which such facility is located, or within 11 months after the
date of the enactment of this title, whichever is earlier, the
owner or operator of the facility shall notify the emergency
planning committee (or the Governor if there is no committee)
of a facility representative who will participate in the emer-
gency planning process as a facility emergency coordinator.
(2) The owner or operator of the facility shiall promptly
inform the emergency planning committee of any relevant
changes occurring at such facility as such changes occur or are
expected to occur.
(3) Upon request from the emergency planning committee,
the owner or operator of the facility shall promptly provide in-
formation to such committee necessary for developing and im-
plementing the emergency plan.
(e) REVIEW BY THE STATE EMERGENCY RESPONSE COMMISSION.
After completion of an emergency plan under subsection (a) for an
emergency planning district, the local emergency planning commit-
tee shall submit a copy of the plan to the State emergency response
commission of each State in which such district is located. The
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commission shall review the plan and make recommendations to
the committee on revisions of the plan that may be necessary to
ensure coordination of such plan with emergency response plans of
other emergency planning districts. To the maximum extent practi-
cable, such review shall not delay implementation of such plan.
(f) GUIDANCE DOCUMENTS.The national response team, as estab-
lished pursuant to the National Contingency Plan as established
under section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.),
shall publish guidance documents for preparation and implementa-
tion of emergency plans. Such documents shall be published not
later than five months after the date of the enactment of this title.
(g) REVIEW OF PLANS BY REGIONAL RESPONSE TEAMS.The region-
al response teams, as established pursuant to the National Contin-
gency Plan as established under section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.), may review and comment upon an emer-
gency plan or other issues related to preparation, implementation,
or exercise of such a plan upon request of a local emergency plan-
ning committee. Such review shall not delay implementation of the
plan.
SEC. 304. EMERGENCY NOTIFICATION.
(a) TYPES OF RELEASES.
(1) 302(a) SUBSTANCE WHICH REQUIRES CERCLA NOTICE.If a re-
lease of an extremely hazardous substance referred to in sec-
tion 302(a) occurs from a facility at which a hazardous chemi-
cal is produced, used, or stored, and such release requires a no-
tification under section 103(a) of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980
(hereafter in this section referred to as "CERCLA") (42 U.S.C.
9601 et seq.), the owner or operator of the facility shall imme-
diately provide notice as described in subsection (b).
(2) OTHER 302 (a) SUBSTANCE.If a release of an extremely
hazardous substance referred to in section 302(a) occurs from a
facility at which a hazardous chemical is produced, used, or
stored, and such release is not subject to the notification re-
quirements under section 103(a) of CERCLA, the owner or op-
erator of the facility shall immediately provide notice as de-
scribed in subsection (b), but only if the release
(A) is not a federally permitted release as defined in sec-
tion 101(10) of CERCLA,
(B) is in an amount in excess of a quantity which the Ad-
ministrator has determined (by regulation) requires notice,
and
(0) occurs in a manner which would require notification
under section 103(a) of CERCLA.
Unless and until superseded by regulations establishing a
quantity for an extremely hazardous substance described in
this paragraph, a quantity of 1 pound shall be deemed that
quantity the release of which requires notice as described in
subsection (b).
(3) NON-302 (a) SUBSTANCE WHICH REQUIRES CERCLA NOTICE.
If a release of a substance which is not on the list referred to
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in section 302(a) occurs at a facility at which a hazardous
chemical is produced, used, or stored, and such release requires
notification under section 103(a) of CERCLA, the owner or op-
erator shall provide notice as follows:
(A) If the substance is one for which a reportable quanti-
ty has been established under section 102(a) of CERCLA,
the owner or operator shall provide notice as described in
subsection (b).
(B) If the substance is one for which a reportable quanti-
ty has not been established under section 102(a) of
CERCLA
(i) Until April 30, 1988, the owner or operator shall
provide, for releases of one pound or more of the sub-
stance, the same notice to the community emergency
coordinator for the local emergency planning commit-
tee, at the same time and in the same form, as notice
is provided to the National Response Center under sec-
tion 103(a) of CERCLA.
(ii) On and after April 30, 1988, the owner or opera-
tor shall provide, for releases of one pound or more of
the substance, the notice as described in subsection (b).
(4) EXEMPTED RELEASES.This section does not apply to any
release which results in exposure to persons solely within the
site or sites on which a facility is located.
(b) NOTIFICATION.
(1) RECIPIENTS OF NOTICE.Notice required under subsection
(a) shall be given immediately after the release by the owner
or operator of a facility (by such means as telephone, radio, or
in person) to the community emergency coordinator for the
local emergency planning committees, if established pursuant
to section 301(c), for any area likely to be affected by the re-
lease and to the State emergency planning commission of any
State likely to be affected by the release. With respect to trans-
portation of a substance subject to the requirements of this sec-
tion, or storage incident to such transportation, the notice re-
quirements of this section with respect to a release shall be
satisfied by dialing 911 or, in the absence of a 911 emergency
telephone number, calling the operator.
(2) CONTENTS.Notice required under subsection (a) shall in-
clude each of the following (to the extent known at the time of
the notice and so long as no delay in responding to the emer-
gency results):
(A) The chemical name or identity of any substance in-
volved in the release.
(B) An indication of whether the substance is on the list
referred to in section 302(a).
(C) An estimate of the quantity of any such substance
that was released into the environment.
(D) The time and duration of the release.
(E) The medium or media into which the release oc-
curred.
(F) Any known or anticipated acute or chronic health
risks associated with the emergency and, where appropri-
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ate, advice regarding medical attention necessary for ex-
posed individuals.
(G) Proper precautions to take as a result of the release,
including evacuation (unless such information is readily
available to the community emergency coordinator pursu-
ant to the emergency plan).
(H) The name and telephone number of the person or
persons to be contacted for further information.
(c) FOLLOWUP EMERGENCY NOTICE.As soon as practicable after a
release which requires notice under subsection (a), such owner or
operator shall provide a written followup emergency notice (or no-
tices, as more information becomes available) setting forth and up-
dating the information required under subsection (b), and including
additional information with respect to
(1) actions taken to respond to and contain the release,
(2) any known or anticipated acute or chronic health risks
associated with the release, and
(3) where appropriate, advice regarding medical attention
necessary for exposed individuals.
(d) TRANSPORTATION EXEMPTION Nor APPLICABLE.The exemp-
tion provided in section 327 (relating to transportation) does not
apply to this section.
SEC. 305. EMERGENCY TRAINING AND REVIEW OF EMERGENCY SYSTEMS.
(a) EMERGENCY TRAINING.
(1) PROGRAMS.Officials of the United States Government
carrying out existing Federal programs for emergency training
are authorized to specifically provide training and education
programs for Federal, State, and local personnel in hazard
mitigation, emergency preparedness, fire prevention and con-
trol, disaster response, long-term disaster recovery, national se-
curity, technological and natural hazards, and emergency proc-
esses. Such programs shall provide special emphasis for such
training and education with respect to hazardous chemicals.
(2) STATE AND LOCAL PROGRAM SUPPORT.There is authorized
to be appropriated to the Federal Emergency Management
Agency for each of the fiscal years 1987, 1988, 1989, and 1990,
$5,000,000 for making grants to support programs of State and
local governments, and to support university-sponsored pro-
grams, which are designed to improve emergency planning,
preparedness, mitigation, response, and recovery capabilities.
Such programs shall provide special emphasis with respect to
emergencies associated with hazardous chemicals. Such grants
may not exceed 80 percent of the cost of any such program.
The remaining 20 percent of such costs shall be funded from
non-Federal sources.
(3) OTHER PROGRAMS.Nothing in this section shall affect
the availability of appropriations to the Federal Emergency
Management Agency for any programs carried out by such
agency other than the programs referred to in paragraph (2).
(b) REVIEW OF EMERGENCY SYSTEMS.
(1) REVIEW.The Administrator shall initiate, not later than
30 days after the date of the enactment of this title, a review of
emergency systems for monitoring, detecting, and preventing
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releases of extremely hazardous substances at representative
domestic facilities that produce, use, or store extremely hazard-
ous substances. The Administrator may select representative
extremely hazardous substances from the substances on the
list referred to in section 302(a) for the purposes of this review.
The Administrator shall report interim findings to the Con-
gress not later than seven months after such date of enact-
ment, and issue a final report of findings and recommenda-
tions to the Congress not later than 18 months after such date
of enactment. Such report shall be prepared in consultation
with the States and appropriate Federal agencies.
(2) REPORT.The report required by this subsection shall in-
clude the Administrator's findings regarding each of the fol-
lowing:
(A) The status of current technological capabilities to (i)
monitor, detect, and prevent, in a timely manner, signifi-
cant releases of extremely hazardous substances, (ii) deter-
mine the magnitude and direction of the hazard posed by
each release, (iii) identify specific substances, (iv) provide
data on the specific chemical composition of such releases,
and (v) determine the relative concentrations of the con-
stituent substances.
(B) The status of public emergency alert devices or sys-
tems for providing timely and effective public warning of
an accidental release of extremely hazardous substances
into the environment, including releases into the atmos-
phere, surface water, or grpundwater from facilities that
produce, store, or use significant quantities of such ex-
tremely hazardous substances.
(C) The technical and economic feasibility of establish-
ing, maintaining, and operating perimeter alert systems
for detecting releases or such extremely hazardous sub-
stances into the atmosphere, surface water, or groundwat-
er, at facilities that manufacture, use, or store significant
quantities of such substances.
(3) RECOMMENDATIONS.The report required by this subsec-
tion shall also include the Administrator's recommendations
for-
(A) initiatives to support the development of new or im-
proved technologies or systems that would facilitate the
timely monitoring, detection, and prevention of releases of
extremely hazardous substances, and
(B) improving devices or systems for effesctively alerting
the public in a timely manner, in the event of an acciden-
tal release of such extremely hazardous substances.
Subtitle BReporting Requirements
SEC. 311. MATERIAL SAFETY DATA SHEETS.
(a) BASIC REQUIREMENT.
(1) SUBMISSION OP MSDS OR LIST.The owner or operator of
any facility which is required to prepare or have available a
material safety data sheet for a hazardous chemical under the
Occupational Safety and Health Act of 1970 and regulations
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promulgated under that Act (15 U.S.C. 651 et seq.) shall submit
a material safety data sheet for each such chemical, or a list of
such chemicals as described in paragraph (2), to each of the fol-
lowing:
(A) The appropriate local emergency planning commit-
tee.
(B) The State emergency response commission.
(C) The fire department with jurisdiction over the facili-
ty.
(2) CONTENTS OF LIST.(A) The list of chemicals referred to in
paragraph (1) shall include each of the following:
(i) A list of the hazardous chemicals for which a material
safety data sheet is required under the Occupational
Safety and Health Act of 1970 and regulations promulgat-
ed under that Act, grouped in categories of health and
physical hazards as set forth under such Act and regula-
tions promulgated under such Act, or in such other catego-
ries as the Administrator may prescribe under subpara-
graph (B).
(ii) The chemical name or the common name of each
such chemical as provided on the material safety data
sheet.
(iii) Any hazardous component of each such chemical as
provided on the material safety data sheet.
(B) For purposes of the list under this paragraph, the Admin-
istrator may modify the categories of health and physical haz-
ards as set forth under the Occupational Safety and Health
Act of 1970 and regulations promulgated under that Act by re-
quiring information to be reported in terms of groups of haz-
ardous chemicals which present similar hazards in an emer-
gency.
(3) TREATMENT OF MIXTURES.An owner or operator may
meet the requirements of this section with respect to a hazard-
ous chemical which is a mixture by doing one of the following:
(A) Submitting a material safety data sheet for, or iden-
tifying on a list, each element or compound in the mixture
which is a hazardous chemical. If more than one mixture
has the same element or compound, only one material
safety data sheet, or one listing, of the element or com-
pound is necessary.
(B) Submitting a material safety data sheet for, or iden-
tifying on a list, the mixture itself.
(b) THRESHOLDS.The Administrator may establish threshold
quantities for hazardous chemicals below which no facility shall be
subject to the provisions of this section. The threshold quantities
may, in the Administrator's discretion, be based on classes of
chemicals or categories of facilities.
(c) AVAILABILITY OP MSDS ON REQUEST.
(1) TO LOCAL EMERGENCY PLANNING COMMITTEE.If an Owner
or operator of a facility submits a list of chemicals under sub-
section (aXl), the owner or operator, upon request by the local
emergency planning committee, shall submit the material
safety data sheet for any chemical on the list to such commit-
tee.
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(2) To PUBLIC.A local emergency planning committee, upon
request by any person, shall make available a material safety
data sheet to the person in accordance with section 324. If the
local emergency planning committee does not have the re-
quested material safety data sheet, the committee shall request
the sheet from the facility owner or operator and then make
the sheet available to the person in accordance with section
324.
(d) INITIAL SUBMISSION AND UPDATING.(1) The initial material
safety data sheet or list required under this section with respect to
a hazardous chemical shall be provided before the later of
(A) 12 months after the date of the enactment of this title, or
(B) 3 months after the owner or operator of a facility is re-
quired to prepare or have available a material safety data
sheet for the chemical under the Occupational Safety and
Health Act of 1970 and regulations promulgated under that
Act.
(2) Within 3 months following discovery by an owner or operator
of significant new information concerning an aspect of a hazardous
chemical for which a material safety data sheet was previously sub-
mitted to the local emergency planning committee under subsec-
tion (a), a revised sheet shall be provided to such person.
(e) HAZARDOUS CHEMICAL DEFINED.For purposes of this section,
the term "hazardous chemical" has the meaning given such term
by section 1910.120(Xc) of title 29 of the Code of Federal Regula-
tions, except that such term does not include the following:
(1) Any food, food additive, color additive, drug, or cosmetic
regulated by the Food and Drug Administration.
(2) Any substance present as a solid in any manufactured
item to the extent exposure to the substance does not occur
under normal conditions of use.
(3) Any substance to the extent it is used for personal,
family, or household purposes, or is present in the same form
and concentration as a product packaged for distribution and
use by the general public.
(4) Any substance to the extent it is used in a research labo-
ratory or a hospital or other medical facility under the direct
supervision of a technically qualified individual.
(5) Any substance to the extent it is used in routine agricul-
tural operations or is a fertilizer held for sale by a retailer to
the ultimate customer.
SEC. 312. EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY FORMS.
(a) BASIC REQUIREMENT.(1) The owner or operator of any facili-
ty which is required to prepare or have available a material safety
data sheet for a hazardous chemical under the Occupational Safety
and Health Act of 1970 and regulations promulgated under that
Act shall prepare and submit an emergency and hazardous chemi-
cal inventory form (hereafter in this title referred to as an "inven-
tory form") to each of the following:
(A) The appropriate local emergency planning committee.
(B) The State emergency response commission.
(C) The fire department with jurisdiction over the facility.
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(2) The inventory form containing tier I information (as described
in subsection (dXl)) shall be submitted on or before March 1, 1988,
and annually thereafter on March 1, and shall contain data with
respect to the preceding calendar year.
(3) An owner or operator may meet the requirements of this sec-
tion with respect to a hazardous chemical which is a mixture by
doing one of the following:
(A) Providing information on the inventory form on each ele-
ment or compound in the mixture which is a hazardous chemi-
cal. If more than one mixture has the same element or com-
pound, only one listing on the inventory form for the element
or compound at the facility is necessary.
(B) Providing information on the inventory form on the mix-
ture itself.
(b) THRESHOLDS.The Administrator may establish threshold
quantities for hazardous chemicals covered by this section below
which no facility shall be subject to the provisions of this section.
The threshold quantities may, in the Administrator's discretion, be
based on classes of chemicals or categories of facilities.
(c) HAZARDOUS CHEMICALS COVERED.A hazardous chemical sub-
ject to the requirements of this section is any hazardous chemical
for which a material safety data sheet or a listing is required under
section 311.
(d) CONTENTS OF FORM.
(1) TIER I INFORMATION.
(A) AGGREGATE INFORMATION BY CATEGORY.An invento-
ry form shall provide the information described in sub-
paragraph (B) in aggregate terms for hazardous chemicals
in categories of health and physical hazards as set forth
under the Occupational Safety and Health Act of 1970 and
regulations promulgated under that Act.
(B) REQUIRED INFORMATION.The information referred
to in subparagraph (A) is the following:
(i) An estimate (in ranges) of the maximum amount
of hazardous chemicals in each category present at the
facility at any time during the preceding calendar
year.
(ii) An estimate (in ranges) of the average daily
amount of hazardous chemicals in each category
present at the facility during the preceding calendar
year.
(iii) The general location of hazardous chemicals in
each category.
(O MODIFICATIONS.For purposes of reporting informa-
tion under this paragraph, the Administrator may
(i) modify the categories of health and physical haz-
ards as set forth under the Occupational Safety and
Health Act of 1970 and regulations promulgated under
that Act by requiring information to be reported in
terms of groups of hazardous chemicals which present
similar hazards in an emergency, or
(ii) require reporting on individual hazardous chemi-
cals of special concern to emergency response person-
nel.
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(2) TIER ii INFORMATION.An inventory form shall provide
the following additional information for each hazardous chemi-
cal present at the facility, but only upon request and in accord-
ance with subsection (e):
(A) The chemical name or the common name of the
chemical as provided on the material safety data sheet.
(B) An estimate (in ranges) of the maximum amount of
the hazardous chemical present at the facility at any time
during the preceding calendar year.
(C) An estimate (in ranges) of the average daily amount
of the hazardous chemical present at the facility during
the preceding calendar year.
(D) A brief description of the manner of storage of the
hazardous chemical.
(E) The location at the facility of the hazardous chemi-
cal.
(F) An indication of whether the owner elects to with-
hold location information of a specific hazardous chemical
from disclosure to the public under section 324.
(e) AVAILABILITY OF TIER II INFORMATION.
(1) AVAILABILITY TO STATE COMMISSIONS, LOCAL COMMITTEES,
AND FIRE DEPARTMENTS.Upon request by a State emergency
planning commission, a local emergency planning committee,
or a fire department with jurisdiction over the facility, the
owner or operator of a facility shall provide tier II information,
as described in subsection (d), to the person making the re-
quest. Any such request shall be with respect to a specific facil-
ity.
(2) AVAILABILITY TO OTHER STATE AND LOCAL OFFICIALS.A
State or local official acting in his or her official capacity may
have access to tier II information by submitting a request to
the State emergency response commission or the local emer-
gency planning committee. Upon receipt of a request for tier II
information, the State commission or local committee shall,
pursuant to paragraph (1), request the facility owner or opera-
tor for the tier II information and make available such infor-
mation to the official.
(3) AVAILABILITY TO PUBLIC.
(A) IN GENERAL.Any person may request a State emer-
gency response commission or local emergency planning
committee for tier II information relating to the preceding
calendar year with respect to a facility. Any such request
shall be in writing and shall be with respect to a specific
facility.
(B) AUTOMATIC PROVISION OF INFORMATION TO PUBLIC.
Any tier H information which a State emergency response
commission or local emergency planning committee has in
its possession shall be made available to a person making
a request under this paragraph in accordance with section
324. If the State emergency response commission or local
emergency planning committee does not ha.ve the tier II
information in its possession, upon a request for tier II in-
formation the State emergency response commission or
local emergency planning committee shall, pursuant to
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paragraph (1), request the facility owner or operator for
tier II information with respect to a hazardous chemical
which a facility has stored in an amount in excess of
10,000 pounds present at the facility at any time during
the preceding calendar year and make such information
available in accordance with section 324 to the person
making the request.
(C) DISCRETIONARY PROVISION OF INFORMATION TO
PUBLIC.In the case of tier II information which is not in
the possession of a State emergency response commission
or local emergency planning committee and which is with
respect to a hazardous chemical which a facility has stored
in an amount less than 10,000 pounds present at the facili-
ty at any time during the preceding calendar year, a re-
quest from a person must include the general need for the
information. The State emergency response commission or
local emergency planning committee may, pursuant to
paragraph (1), request the facility owner or operator for
the tier II information on behalf of the person making the
request. Upon receipt of any information requested on
behalf of such person, the State emergency response com-
mission or local emergency planning committee shall
make the information available in accordance with section
324 to the person.
(D) RESPONSE IN 45 DAYS.A State emergency response
commission or local emergency planning committee shall
respond to a request for tier II information under this
paragraph no later than 45 days after the date of receipt
of the request.
(f) FIRE DEPARTMENT ACCESS.Upon request to an owner or oper-
ator of a facility which files an inventory form under this section
by the fire department with jurisdiction over the facility, the owner
or operator of the facility shall allow the fire department to con-
duct an on-site inspection of the facility and shall provide to the
fire department specific location information on hazardous chemi-
cals at the facility.
(g) FORMAT OF FORMS.The Administrator shall publish a uni-
form format for inventory forms within three months after the
date of the enactment of this title. If the Administrator does not
publish such forms, owners and operators of facilities subject to the
requirements of this section shall provide the information required
under this section by letter.
SEC. 313. TOXIC CHEMICAL RELEASE FORMS.
(a) BASIC REQUIREMENT.The owner or operator of a facility sub-
ject to the requirements of this section shall complete a toxic chem-
ical release form as published under subsection (g) for each toxic
chemical listed under subsection (c) that was manufactured, proc-
essed, or otherwise used in quantities exceeding the toxic chemical
threshold quantity established by subsection (f) during the preced-
ing calendar year at such facility. Such form shall be submitted to
the Administrator and to an official or officials of the State desig-
nated by the Governor on or before July 1, 1988, and annually
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thereafter on July 1 and shall contain data reflecting releases
during the preceding calendar year.
(b) COVERED OWNERS AND OPERATORS OF FACILITIES.
(1) IN GENERAL.(A) The requirements of this section shall
apply to owners and operators of facilities that have 10 or
more full-time employees and that are in Standard Industrial
Classification Codes 20 through 39 (as in effect on July 1, 1985)
and that manufactured, processed, or otherwise used a toxic
chemical listed under subsection (c) in excess of the quantity of
that toxic chemical established under subsection (f) during the
calendar year for which a release form is required under this
section.
(B) The Administrator may add or delete Standard Industrial
Classification Codes for purposes of subparagraph (A), but only
to the extent necessary to provide that each Standard Industri-
al Code to which this section applies is relevant to the pur-
poses of this section.
(C) For purposes of this section
(i) The term "manufacture" means to produce, prepare,
import, or compound a toxic chemical.
(ii) The term "process" means the preparation of a toxic
chemical, after its manufacture, for distribution in com-
merce
(I) in the same form or physical state as, or in a dif-
ferent form or physical state from, that in which it
was received by the person so preparing such chemi-
cal, or
(II) as part of an article containing the toxic chemi-
cal.
(2) DISCRETIONARY APPLICATION TO ADDITIONAL FACILITIES.
The Administrator, on his own motion or at the request of a
Governor of a State (with regard to facilities located in that
State), may apply the requirements of this section to the
owners and operators of any particular facility that manufac-
tures, processes, or otherwise uses a toxic chemical listed
under subsection (c) if the Administrator determines that such
action is warranted on the basis of toxicity of the toxic chemi-
cal, proximity to other facilities that release the toxic chemical
or to population centers, the history of releases of such chemi-
cal at such facility, or such other factors as the Administrator
deems appropriate.
(c) Toxic CHEMICALS COVERED.The toxic chemicals subject to
the requirements of this section are those chemicals on the list in
Committee Print Number 99-169 of the Senate Committee on Envi-
ronment and Public Works, titled "Toxic Chemicals Subject to Sec-
tion 313 of the Emergency Planning and Community Right-To-
Know Act of 1986" (including any revised version of the list as may
be made pursuant to subsection (d) or (e)).
(d) REVISIONS BY ADMINISTRATOR.
(1) IN GENERAL.The Administrator may by rule add or
delete a chemical from the list described in subsection (c) at
any time.
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(2) ADDITIONS.A chemical may be added if the Administra-
tor determines, in his judgment, that there is sufficient evi-
dence to establish any one of the following:
(A) The chemical is known to cause or can reasonably be
anticipated to cause significant adverse acute human
health effects at concentration levels that are reasonably
likely to exist beyond facility site boundaries as a result of
continuous, or frequently recurring, releases.
(B) The chemical is known to cause or can reasonably be
anticipated to cause in humans
(i) cancer or teratogenic effects, or
(ii) serious or irreversible
(I) reproductive dysfunctions,
(II) neurological disorders,
(III) heritable genetic mutations, or
(IV) other chronic health effects.
(C) The chemical is known to cause or can reasonably be
anticipated to cause, because of
(i) its toxicity,
(ii) its toxicity and persistence in the environment,
or
(iii) its toxicity and tendency to bioaccumulate in
the environment,
a significant adverse effect on the environment of suffi-
cient seriousness, in the judgment of the Administrator, to
warrant reporting under this section. The number of
chemicals included on the list described in subsection (c)
on the basis of the preceding sentence may constitute in
the aggregate no more than 25 percent of the total number
of chemicals on the list.
A determination under this paragraph shall be based on gener-
ally accepted scientific principles or laboratory tests, or appro-
priately designed and conducted epidemiological or other popu-
lation studies, available to the Administrator.
(3) DELETIONS.A chemical may be deleted if the Adminis-
trator determines there is not sufficient evidence to establish
any of the criteria described in paragraph (2).
(4) EFFECTIVE DATE.Any revision made on or after January
1 and before December 1 of any calendar year shall take effect
beginning with the next calendar year. Any revision made on
or after December 1 and before January 1 shall take effect be-
ginning with the calendar year following the next calendar
year.
(e) PETITIONS.
(1) IN GENERAL.Any person may petition the Administrator
to add or delete a chemical from the list describee! in subsec-
tion (c) on the basis of the criteria in subparagraph (A) or (B) of
subsection (dX2). Within 180 days after receipt of a petition, the
Administrator shall take one of the following actions:
(A) Initiate a rulemaking to add or delete the chemical
to the list, in accordance with subsection (dX2).
(B) Publish an explanation of why the petition is denied.
(2) GOVERNOR PETITIONS.A State Governor may petition the
Administrator to add or delete a chemical from the list de-
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scribed in subsection (c) on the basis of the criteria in subpara-
graph (A), (B), or (C) of subsection (d)(2). In the case of such a
petition from a State Governor to delete a chemical, the peti-
tion shall be treated in the same manner as a petition received
under paragraph (1) to delete a chemical. In the case of such a
petition from a State Governor to add a chemical, the chemical
will be added to the list within 180 days after receipt of the
petition, unless the Administrator
(A) initiates a rulemaking to add the chemical to the
list, in accordance with subsection (dX2), or
(B) publishes an explanation of why the Administrator
believes the petition does not meet the requirements of
subsection (dX2) for adding a chemical to the list.
(f) THRESHOLD FOR REPORTING.
(1) Toxic CHEMICAL THRESHOLD AMOUNT.The threshold
amounts for purposes of reporting toxic chemicals under this
section are as follows:
(A) With respect to a toxic chemical used at a facility,
10,000 pounds of the toxic chemical per year.
(B) With respect to a toxic chemical manufactured or
processed at a facility
(i) For the toxic chemical release form required to be
submitted under this section on or before July 1, 1988,
75,000 pounds of the toxic chemical per year.
(ii) For the form required to be submitted on or
before July 1, 1989, 50,000 pounds of the toxic chemi-
cal per year.
(iii) For the form required to be submitted on or
before July 1, 1990, and for each form thereafter,
25,000 pounds of the toxic chemical per year.
(2) REVISIONS.The Administrator may establish a threshold
amount for a toxic chemical different from the amount estab-
lished by paragraph (1). Such revised threshold shall obtain re-
porting on a substantial majority of total releases of the chemi-
cal at all facilities subject to the requirements of this section.
The amounts established under this paragraph may, at the Ad-
ministrator's discretion, be based on classes of chemicals or
categories of facilities.
(g) FORM.
(1) INFORMATION REQUIRED.Not later than June 1, 1987, the
Administrator shall publish a uniform toxic chemical release
form for facilities covered by this section. If the Administrator
does not publish such a form, owners and operators of facilities
subject to the requirements of this section shall provide the in-
formation required under this subsection by letter postmarked
on or before the date on which the form is due. Such form
shall
(A) provide for the name and location of, and principal
business activities at, the facility;
(B) include an appropriate certification, signed by a
senior official with management responsibility for the
person or persons completing the report, regarding the ac-
curacy and completeness of the report; and
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(C) provide for submission of each of the following items
of information for each listed toxic chemical known to be
present at the facility:
(i) Whether the toxic chemical at the facility is man-
ufactured, processed, or otherwise used, and the gener-
al category or categories of use of the chemical.
(ii) An estimate of the maximum amounts (in
ranges) of the toxic chemical present at the facility at
any time during the preceding calendar year.
(iii) For each wastestream, the waste treatment or
disposal methods employed, and an estimate of the
treatment efficiency typically achieved by such meth-
ods for that wastestream.
(iv) The annual quantity of the toxic chemical enter-
ing each environmental medium.
(2) USE OF AVAILABLE DATA.In order to provide the informa-
tion required under this section, the owner or operator of a fa-
cility may use readily available data (including monitoring
data) collected pursuant to other provisions of law, or, where
such data are not readily available, reasonable estimates of the
amounts involved. Nothing in this section requires the moni-
toring or measurement of the quantities, concentration, or fre-
quency of any toxic chemical released into the environment
beyond that monitoring and measurement required under
other provisions of law or regulation. In order to assure con-
sistency, the Administrator shall require that data be ex-
pressea in common units.
(h) USE OF RELEASE FORM.The release forms required under
this section are intended to provide information to the Federal,
State, and local governments and the public, including citizens of
communities surrounding covered facilities. The release form shall
be available, consistent with section 324(a), to inform persons about
releases of toxic chemicals to the environment; to assist govern-
mental agencies, researchers, and other persons in the conduct of
research and data gathering; to aid in the development of appropri-
ate regulations, guidelines, and standards; and for other similar
purposes.
(i) MODIFICATIONS IN REPORTING FREQUENCY.
(1) IN "GENERAL.The Administrator may modify the fre-
quency of submitting a report under this section, but the Ad-
ministrator may not modify the frequency to be any more
often than annually. A modification may apply, either nation-
ally or in a specific geographic area, to the following:
(A) All toxic chemical release forms required under this
section.
(B) A class of toxic chemicals or a category of facilities.
(C) A specific toxic chemical.
(D) A specific facility.
(2) REQUIREMENTS.A modification may be made under
paragraph (1) only if the Administrator
(A) makes a finding that the modification is consistent
with the provisions of subsection (h), based on
(i) experience from previously submitted toxic chem-
ical release forms, and
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(ii) determinations made under paragraph (3), and
(B) the finding is made by a rulemaking in accordance
with section 553 of title 5, United States Code.
(3) DETERMINATIONS.The Administrator shall make the fol-
lowing determinations with respect to a proposed modification
before making a modification under paragraph (1):
(A) The extent to which information relating to the pro-
posed modification provided on the toxic chemical release
forms has been used by the Administrator or other agen-
cies of the Federal Government, States, local governments,
health professionals, and the public.
(B) The extent to which the information is (i) readily
available to potential users from other sources, such as
State reporting programs, and (ii) provided to the Adminis-
trator under another Federal law or through a State pro-
gram.
(C) The extent to which the modification would impose
additional and unreasonable burdens on facilities subject
to the reporting requirements under this section.
(4) 5-YEAR REVIEW.Any modification made under this sub-
section shall be reviewed at least once every 5 years. Such
review shall examine the modification and ensure that the re-
quirements of paragraphs (2) and (3) still justify continuation
of the modification. Any change to a modification reviewed
under this paragraph shall be made in accordance with this
subsection.
(5) NOTIFICATION TO CONGRESS.The Administrator shall
notify Congress of an intention to initiate a rulemaking for a
modification under this subsection. After such notification, the
Administrator shall delay initiation of the rulemaking for at
least 12 months, but no more than 24 months, after the date of
such notification.
(6) JUDICIAL REVIEW.In any judicial review of a rulemaking
which establishes a modification under this subsection, a court
may hold unlawful and set aside agency action, findings, and
conclusions found to be unsupported by substantial evidence.
(7) APPLICABILITY.A modification under this subsection may
apply to a calendar year or other reporting period beginning
no earlier than January 1, 1993.
(8) EFFECTIVE DATE.Any modification made on or after Jan-
uary 1 and before December 1 of any calendar year shall take
effect beginning with the next calendar year. Any modification
made on or after December 1 and before January 1 shall take
effect beginning with the calendar year following such next
calendar year.
(j) EPA MANAGEMENT OF DATA.The Administrator shall estab-
lish and maintain in a computer data base a national toxic chemi-
cal inventory based on data submitted to the Administrator under
this section. The Administrator shall make these data accessible by
computer telecommunication and other means to any person on a
cost reimbursable basis.
(k) REPORT.Not later than June 30, 1991, the Comptroller Gen-
eral, in consultation with the Administrator and appropriate offi-
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cials in the States, shall submit to the Congress a report including
each of the following:
(DA description of the steps taken by the Administrator and
the States to implement the requirements of this section, in-
cluding steps taken to make information collected under this
section available to and accessible by the public.
(2) A description of the extent to which the information col-
lected under this section has been used by the Environmental
Protection Agency, other Federal agencies, the States, and the
public, and the purposes for which the information has been
used.
(3) An identification and evaluation of options for modifica-
tions to the requirements of this section for the purpose of
making information collected under this section more useful.
(1) MASS BALANCE STUDY.
(1) IN GENERAL.The Administrator shall arrange for a mass
balance study to be carried out by the National Academy of
Sciences using mass balance information collected by the Ad-
ministrator under paragraph (3). The Administrator shall
submit to Congress a report on such study no later than 5
years after the date of the enactment of this title.
(2) PURPOSES.The purposes of the study are as follows:
(A) To assess the value of mass balance anatysis in deter-
mining the accuracy of information on toxic chemical re-
leases.
(B) To assess the value of obtaining mass balance infor-
mation, or portions thereof, to determine the waste reduc-
tion efficiency of different facilities, or categories of facili-
ties, including the effectiveness of toxic chemical regula-
tions promulgated under laws other than this title.
(C) To assess the utility of such information for evaluat-
ing toxic chemical management practices at facilities, or
categories of facilities, covered by this section.
(D) To determine the implications of mass balance infor-
mation collection on a national scale similar to the mass
balance information collection carried out by the Adminis-
trator under paragraph (3), including implications of the
use of such collection as part of a national annual quantity
toxic chemical release program.
(3) INFORMATION COLLECTION.(A) The Administrator shall
acquire available mass balance information from States which
currently conduct (or during the 5 years after the date of en-
actment of this title initiate) a mass balance-oriented annual
quantity toxic chemical release program. If information from
such States provides an inadequate representation of industry
classes and categories to carry out the purposes of the study,
the Administrator also may acquire mass balance information
necessary for the study from a representative number of facili-
ties in other States.
(B) Any information acquired under this section shall be
available to the public, except that upon a showing satisfactory
to the Administrator by any person that the information (or a
particular part thereof) to which the Administrator or any offi-
cer, employee, or representative has access under this section
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if made public would divulge information entitled to protection
under section 1905 of title 18, United States Code, such infor-
mation or part shall be considered confidential in accordance
with the purposes of that section, except that such information
or part may be disclosed to other officers, employees, or au-
thorized representatives of the United States concerned with
carrying out this section.
(C) The Administrator may promulgate regulations prescrib-
ing procedures for collecting mass balance information under
this paragraph.
(D) For purposes of collecting mass balance information
under subparagraph (A), the Administrator may require the
submission of information by a State or facility.
(4) MASS BALANCE DEFINITION.For purposes of this subsec-
tion, the term "mass balance" means an accumulation of the
annual quantities of chemicals transported to a facility, pro-
duced at a facility, consumed at a facility, used at a facility,
accumulated at a facility, released from a facility, and trans-
ported from a facility as a waste or as a commercial product or
byproduct or component of a commercial product or byproduct.
Subtitle CGeneral Provisions
SEC. 321. RELATIONSHIP TO OTHER LAW.
(a) IN GENERAL.Nothing in this title shall
(1) preempt any State or local law,
(2) except as provided in subsection (b), otherwise affect any
State or local law or the authority of any State or local govern-
ment to adopt or enforce any State or local law, or
(3) affect or modify in any way the obligations or liabilities of
any person under other Federal law.
(b) EFFECT ON MSDS REQUIREMENTS.
(1) Any State or local law enacted after August 1, 1985,
which requires the submission of a material safety data sheet
from facility owners or operators shall require that the data
sheet be identical in content and format to the data sheet re-
quired under subsection (a) of section 311. In addition, a State
or locality may require the submission of information which is
supplemental to the information required on the data sheet
(including information on the location and quantity of hazard-
ous chemicals present at the facility), through additional
sheets attached to the data sheet or such other means as the
State or locality considers appropriate.
(2) If any State or local law
(A) is enacted after August 1, 1985, and
(B) requires such a facility owner or operator who sup-
plies a hazardous chemical to any other facility owner or
operator to furnish a material safety data sheet to such
other facility owner or operator,
such requirements shall be identical to the requirements under
section 31 Ha).
SEC. 322. TRADE SECRETS.
(a) AUTHORITY To WITHHOLD INFORMATION.
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(1) GENERAL AUTHORITY.(A) With regard to a hazardous
chemical, an extremely hazardous substance, or a toxic chemi-
cal, any person required under section 303(dX2), 303(dX3), 311,
312, or 313 to submit information to any other person may
withhold from such submittal the specific chemical identity (in-
cluding the chemical name and other specific identification), as
defined in regulations prescribed by the Administrator under
subsection (c), if the person complies with paragraph (2).
(B) Any person withholding the specific chemical identity
shall, in the place on the submittal where the chemical identi-
ty would normally be included, include the generic class or cat-
egory of the hazardous chemical, extremely hazardous sub-
stance, or toxic chemical (as the case may be).
(2) REQUIREMENTS.(A) A person is entitled to withhold in-
formation under paragraph (1) if such person
(i) claims that such information is a trade secret, on the
basis of the factors enumerated in subsection (b),
(ii) includes in the submittal referred to in paragraph (1)
an explanation of the reasons why such information is
claimed to be a trade secret, based on the factors enumer-
ated in subsection (b), including a specific description of
why such factors apply, and
(iii) submits to the Administrator a copy of such submit-
tal, and the information withheld from such submittal.
(B) In submitting to the Administrator the information re-
quired by subparagraph (AXiii), a person withholding informa-
tion under this subsection may
(i) designate, in writing and in such manner as the Ad-
ministrator may prescribe by regulation, the information
which such person believes is entitled to be withheld
under paragraph (1), and
(ii) submit such designated information separately from
other information submitted under this subsection.
(3) LIMITATION.The authority under this subsection to with-
hold information shall not apply to information which the Ad-
ministrator has determined, in accordance with subsection (c),
is not a trade secret.
(b) TRADE SECRET FACTORS.No person required to provide infor-
mation under this title may claim that the information is entitled
to protection as a trade secret under subsection (a) unless such
person shows each of the following:
(1) Such person has not disclosed the information to any
other person, other than a member of a local emergency plan-
ning committee, an officer or employee of the United States or
a State or local government, an employee of such person, or a
person who is bound by a confidentiality agreement, and such
person has taken reasonable measures to protect the confiden-
tiality of such information and intends to continue to take
such measures.
(2) The information is not required to be disclosed, or other-
wise made available, to the public under any other Federal or
State law.
(3) Disclosure of the information is likely to cause substantial
harm to the competitive position of such person.
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(4) The chemical identity is not readily discoverable through
reverse engineering.
(c) TRADE SECRET REGULATIONS.As soon as practicable after the
date of enactment of this title, the Administrator shall prescribe
regulations to implement this section. With respect to subsection
(bX4), such regulations shall be equivalent to comparable provisions
in the Occupational Safety and Health Administration Hazard
Communication Standard (29 C.F.R. 1910.1200) and any revisions of
such standard prescribed by the Secretary of Labor in accordance
with the final ruling of the courts of the United States in United
Steelworkers of America, AFL-CIO-CLC v. Thome G. Auchter.
(d) PETITION FOR REVIEW.
(1) IN GENERAL.Any person may petition the Administrator
for the disclosure of the specific chemical identity of a hazard-
ous chemical, an extremely hazardous substance, or a toxic
chemical which is claimed as a trade secret under this section.
The Administrator may, in the absence of a petition under this
paragraph, initiate a determination, to be carried out in ac-
cordance with this subsection, as to whether information with-
held constitutes a trade secret.
(2) INITIAL REVIEW.Within 30 days after the date of receipt
of a petition under paragraph (1) (or upon the Administrator's
initiative), the Administrator shall review the explanation filed
by a trade secret claimant under subsection (aX2) and deter-
mine whether the explanation presents assertions which, if
true, are sufficient to support a finding that the specific chemi-
cal identity is a trade secret.
(3) FINDING OF SUFFICIENT ASSERTIONS.
(A) If the Administrator determines pursuant to para-
graph (2) that the explanation presents sufficient asser-
tions to support a finding that the specific chemical identi-
ty is a trade secret, the Administrator shall notify the
trade secret claimant that he has 30 days to supplement
the explanation with detailed information to support the
assertions.
(B) If the Administrator determines, after receipt of any
supplemental supporting detailed information under sub-
paragraph (A), that the assertions in the explanation are
true and that the specific chemical identity is a trade
secret, the Administrator shall so notify the petitioner and
the petitioner may seek judicial review of the determina-
tion.
(C) If the Administrator determines, after receipt of any
supplemental supporting detailed information under sub-
paragraph (A), that the assertions in the explanation are
not true and that the specific chemical identity is not a
trade secret, the Administrator shall notify the trade
secret claimant that the Administrator intends to release
the specific chemical identity. The trade secret claimant
has 30 days in which he may appeal the Administrator's
determination under this subparagraph to the Administra-
tor. If the Administrator does not reverse his determina-
tion under this subparagraph in such an appeal by the
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trade secret claimant, the trade secret claimaint may seek
judicial review of the determination.
(4) FINDING OF INSUFFICIENT ASSERTIONS.
(A) If the Administrator determines pursuant to para-
graph (2) that the explanation presents insufficient asser-
tions to support a finding that the specific chemical identi-
ty is a trade secret, the Administrator shall notify the
trade secret claimant that he has 30 days to appeal the de-
termination to the Administrator, or, upon a showing of
good cause, amend the original explanation by providing
supplementary assertions to support the trade secret
claim.
(B) If the Administrator does not reverse his determina-
tion under subparagraph (A) after an appeal or an exami-
nation of any supplementary assertions under subpara-
graph (A), the Administrator shall so notify the trade
secret claimant and the trade secret claimant may seek ju-
dicial review of the determination.
(C) If the Administrator reverses his determination
under subparagraph (A) after an appeal or an examination
of any supplementary assertions under subparagraph (A),
the procedures under paragraph (3) of this subsection
apply.
(e) EXCEPTION FOR INFORMATION PROVIDED TO HEALTH PROFES-
SIONALS.Nothing in this section, or regulations adoptiid pursuant
to this section, shall authorize any person to withhold information
which is required to be provided to a health professional, a doctor,
or a nurse in accordance with section 323.
(f) PROVIDING INFORMATION TO THE ADMINISTRATOR; AVAILABILITY
TO PUBLIC.Any information submitted to the Administrator
under subsection (aX2) or subsection (dX3) (except a specific chemi-
cal identity) shall be available to the public, except that upon a
showing satisfactory to the Administrator by any person that the
information (or a particular part thereof) to which the Administra-
tor has access under this section if made public would divulge in-
formation entitled to protection under section 1905 of title 18,
United States Code, such information or part shall be considered
confidential in accordance with the purposes of that section, except
that such information or part may be disclosed to other officers,
employees, or authorized representatives of the United States con-
cerned with carrying out this title.
(g) INFORMATION PROVIDED TO STATE.Upon request by a State,
acting through the Governor of the State, the Administrator shall
provide to the State any information obtained under subsection
(aX2) and subsection (dX3).
(h) INFORMATION ON ADVERSE EFFECTS.(1) In any case in which
the identity of a hazardous chemical or an extremely hazardous
substance is claimed as a trade secret, the Governor or State emer-
gency response commission established under section 301 shall
identify the adverse health effects associated with the hazardous
chemical or extremely hazardous substance and shall assure that
such information is provided to any person requesting information
about such hazardous chemical or extremely hazardous substance.
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(2) In any case in which the identity of a toxic chemical is
claimed as a trade secret, the Administrator shall identify the ad-
verse health and environmental effects associated with the toxic
chemical and shall assure that such information is included in the
computer database required by section 313(j) and is provided to any
person requesting information about such toxic chemical.
(i) INFORMATION PROVIDED TO CONGRESS.Notwithstanding any
limitation contained in this section or any other provision of law,
all information reported to or otherwise obtained by the Adminis-
trator (or any representative of the Administrator) under this title
shall be made available to a duly authorized committee of the Con-
gress upon written request by such a committee.
SEC. 323. PROVISION OF INFORMATION TO HEALTH PROFESSIONALS,
DOCTORS, AND NURSES.
(a) DIAGNOSIS OR TREATMENT BY HEALTH PROFESSIONAL.An
owner or operator of a facility which is subject to the requirements
of section 311, 312, or 313 shall provide the specific chemical identi-
ty, if known, of a hazardous chemical, extremely hazardous sub-
stance, or a toxic chemical to any health professional who requests
such information in writing if the health professional provides a
written statement of need under this subsection and a written con-
fidentiality agreement under subsection (d). The written statement
of need shall be a statement that the health professional has a rea-
sonable basis to suspect that
(1) the information is needed for purposes of diagnosis or
treatment of an individual,
(2) the individual or individuals being diagnosed or treated
have been exposed to the chemical concerned, and
(3) knowledge of the specific chemical identity of such chemi-
cal will assist in diagnosis or treatment.
Following such a written request, the owner or operator to whom
such request is made shall promptly provide the requested informa-
tion to the health professional. The authority to withhold the spe-
cific chemical identity of a chemical under section 322 when such
information is a trade secret shall not apply to information re-
quired to be provided under this subsection, subject to the provi-
sions of subsection (d).
(b) MEDICAL EMERGENCY.An owner or operator of a facility
which is subject to the requirements of section 311, 312, or 313
shall provide a copy of a material safety data sheet, an inventory
form, or a toxic chemical release form, including the specific chemi-
cal identity, if known, of a hazardous chemical, extremely hazard-
ous substance, or a toxic chemical, to any treating physician or
nurse who requests such information if such physician or nurse de-
termines that
(Da medical emergency exists,
(2) the specific chemical identity of the chemical concerned is
necessary for or will assist in emergency or first-aid diagnosis
or treatment, and
(3) the individual or individuals being diagnosed or treated
have been exposed to the chemical concerned.
Immediately following such a request, the owner or operator to
whom such request is made shall provide the requested informa-
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tion to the physician or nurse. The authority to withhold the specif-
ic chemical identity of a chemical from a material safety data
sheet, an inventory form, or a toxic chemical release form under
section 322 when such information is a trade secret shall not apply
to information required to be provided to a treating physician or
nurse under this subsection. No written confidentiality agreement
or statement of need shall be required as a precondition of such
disclosure, but the owner or operator disclosing such information
may require a written confidentiality agreement in accordance
with subsection (d) and a statement setting forth the items listed in
paragraphs (1) through (3) as soon as circumstances permit.
(c) PREVENTIVE MEASURES BY LOCAL HEALTH PROFESSIONALS.
(1) PROVISION OF INFORMATION.An owner or operator of a
facility subject to the requirements of section 311, 312, or 313
shall provide the specific chemical identity, if known, of a haz-
ardous chemical, an extremely hazardous substance, or a toxic
chemical to any health professional (such as a physician, toxi-
cologist, or epidemiologist)
(A) who is a local government employee or a person
under contract with the local government, and
(B) who requests such information in writing and pro-
vides a written statement of need under paragraph (2) and
a written confidentiality agreement under subsection (d).
Following such a written request, the owner or operator to
whom such request is made shall promptly provide the request-
ed information to the local health professional. The authority
to withhold the specific chemical identity of a chemical under
section 322 when such information is a trade secret shall not
apply to information required to be provided under this subsec-
tion, subject to the provisions of subsection (d).
(2) WRITTEN STATEMENT OF NEED.The written statement of
need shall be a statement that describes with reasonable detail
one or more of the following health needs for the information:
(A) To assess exposure of persons living in a local com-
munity to the hazards of the chemical concerned.
(B) To conduct or assess sampling to determine exposure
levels of various population groups.
(C) To conduct periodic medical surveillance of exposed
population groups.
(D) To provide medical treatment to exposed individuals
or population groups.
(E) To conduct studies to determine the health effects of
exposure.
(F) To conduct studies to aid in the identification of a
chemical that may reasonably be anticipated to cause an
observed health effect.
(d) CONFIDENTIALITY AGREEMENT.Any person obtaining infor-
mation under subsection (a) or (c) shall, in accordance with such
subsection (a) or (c), be required to agree in a written confidential-
ity agreement that he will not use the information for any purpose
other than the health needs asserted in the statement of need,
except as may otherwise be authorized by the terms of the agree-
ment or by the person providing such information. Nothing in this
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subsection shall preclude the parties to a confidentiality agreement
from pursuing any remedies to the extent permitted by law.
(e) REGULATIONS.As soon as practicable after the date of the en-
actment of this title, the Administrator shall promulgate regula-
tions describing criteria and parameters for the statement of need
under subsection (a) and (c) and the confidentiality agreement
under subsection (d).
SEC. 324. PUBLIC AVAILABILITY OF PLANS, DATA SHEETS, FORMS, AND
FOLLOWUP NOTICES.
(a) AVAILABILITY TO PUBLIC.Each emergency response plan, ma-
terial safety data sheet, list described in section 311(aX2), inventory
form, toxic chemical release form, and followup emergency notice
shall be made available to the general public, consistent with sec-
tion 322, during normal working hours at the location or locations
designated by the Administrator, Governor, State emergency re-
sponse commission, or local emergency planning committee, as ap-
propriate. Upon request by an owner or operator of a facility sub-
ject to the requirements of section 312, the State emergency re-
sponse commission and the appropriate local emergency planning
committee shall withhold from disclosure under this section the lo-
cation of any specific chemical required by section 312(dX2) to be
contained in an inventory form as tier II information.
(b) NOTICE OF PUBLIC AVAILABILITY.Each local emergency plan-
ning committee shall annually publish a notice in local newspapers
that the emergency response plan, material safety data sheets and
inventory forms have been submitted under this section. The notice
shall state that followup emergency notices may subsequently be
issued. Such notice shall announce that members of the public who
wish to review any such plan, sheet, form, or followup notice may
do so at the location designated under subsection (a).
SEC. 325. ENFORCEMENT.
(a) CIVIL PENALTIES TOR EMERGENCY PLANNING.The Adminis-
trator may order a facility owner or operator (except an owner or
operator of a facility designated under section 302(bX2)) to comply
with section 302(c) and section 303(d). The United States district
court for the district in which the facility is located shall have ju-
risdiction to enforce the order, and any person who violates or fails
to obey such an order shall be liable to the United States for a civil
penalty of not more than $25,000 for each day in which such viola-
tion occurs or such failure to comply continues.
(b) CIVIL, ADMINISTRATIVE, AND CRIMINAL PENALTIES FOR EMER-
GENCY NOTIFICATION.
(1) CLASS i ADMINISTRATIVE PENALTY.(A) A civil penalty of
not more than $25,000 per violation may be assessed by the
Administrator in the case of a violation of the requirements of
section 304.
(B) No civil penalty may be assessed under this subsection
unless the person accused of the violation is given notice and
opportunity for a hearing with respect to the violation.
(C) In determining the amount of any penalty assessed pur-
suant to this subsection, the Administrator shall take into ac-
count the nature, circumstances, extent and gravity of the vio-
lation or violations and, with respect to the violator, ability to
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pay, any prior history of such violations, the degree of culpabil-
ity, economic benefit or savings (if any) resulting from the vio-
lation, and such other matters as justice may require.
(2) CLASS n ADMINISTRATIVE PENALTY.A civil penalty of not
more than $25,000 per day for each day during which the viola-
tion continues may be assessed by the Administrator in the
case of a violation of the requirements of section 304. In the
case of a second or subsequent violation the amount of such
penalty may be not more than $75,000 for each day during
which the violation continues. Any civil penalty under this
subsection shall be assessed and collected in the same manner,
and subject to the same provisions, as in the case of civil penal-
ties assessed and collected under section 16 of the Toxic Sub-
stances Control Act. In any proceeding for the assessment of a
civil penalty under this subsection the Administrator may
issue subpoenas for the attendance and testimony of witnesses
and the production of relevant papers, books, and documents
and may promulgate rules for discovery procedures.
(3) JUDICIAL ASSESSMENT.The Administrator may bring an
action in the United States District court for the appropriate
district to assess and collect a penalty of not more than $25,000
per day for each day during which the violation continues in
the case of a violation of the requirements of section 304. In
the case of a second or subsequent violation, the amount of
such penalty may be not more than $75,000 for each day
during which the violation continues.
(4) CRIMINAL PENALTIES.Any person who knowingly and
willfully fails to provide notice in accordance with section 304
shall, upon conviction, be fined not more than $25,000 or im-
prisoned for not more than two years, or both (or in the case of
a second or subsequent conviction, shall be fined not more
than $50,000 or imprisoned for not more than five years, or
both).
(c) CIVIL AND ADMINISTRATIVE PENALTIES FOR REPORTING RE-
QUIREMENTS.(1) Any person (other than a governmental entity)
who violates any requirement of section 312 or 313 shall be liable
to the United States for a civil penalty in an amount not to exceed
$25,000 for each such violation.
(2) Any person (other than a governmental entity) who violates
any requirement of section 311 or 323(b), and any person who fails
to furnish to the Administrator information required under section
322(aX2) or requested by the Administrator under section 322(d)
shall be liable to the United States for a civil penalty in an amount
not to exceed $10,000 for each such violation.
(3) Each day a violation described in paragraph (1) or (2) contin-
ues shall, for purposes of this subsection, constitute a separate vio-
lation.
(4) The Administrator may assess any civil penalty for which a
person is liable under this subsection by administrative order or
may bring an action to assess and collect the penalty in the United
States district court for the district in which the person from whom
the penalty is sought resides or in which such person's principal
place of business is located.
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(d) CIVIL, ADMINISTRATIVE, AND CRIMINAL PENALTIES WITH RE-
SPECT TO TRADE SECRETS.
(1) ClVIL AND ADMINISTRATIVE PENALTY FOR FRIVOLOUS
CLAIMS.If the Administrator determines
(AXi) under section 322(dX4) that an explanation submit-
ted by a trade secret claimant presents insufficient asser-
tions to support a finding that a specific chemical identity
is a trade secret, or (ii) after receiving supplemental sup-
porting detailed information under section 322(dX3XA),
that the specific chemical identity is not a trade secret;
and
(B) that the trade secret claim is frivolous,
the trade secret claimant is liable for a penalty of $25,000 per
claim. The Administrator may assess the penalty by adminis-
trative order or may bring an action in the appropriate district
court of the United States to assess and collect the penalty.
(2) CRIMINAL PENALTY FOR DISCLOSURE OF TRADE SECRET INFOR-
MATION.Any person who knowingly and willfully divulges or
discloses any information entitled to protection under section
322 shall, upon conviction, be subject to a fine of not more
than $20,000 or to imprisonment not to exceed one year, or
both.
(e) SPECIAL ENFORCEMENT PROVISIONS FOR SECTION 323.When-
ever any facility owner or operator required to provide information
under section 323 to a health professional who has requested such
information fails or refuses to provide such information in accord-
ance with such section, such health professional may bring an
action in the appropriate United States district court to require
such facility owner or operator to provide the information. Such
court shall have jurisdiction to issue such orders and take such
other action as may be necessary to enforce the requirements of
section 323.
(f) PROCEDURES FOR ADMINISTRATIVE PENALTIES.
(1) Any person against whom a civil penalty is assessed
under this section may obtain review thereof in the appropri-
ate district court of the United States by filing a notice of
appeal in such court within 30 days from the date of such
order and by simultaneously sending a copy of such notice by
certified mail to the Administrator. The Administrator shall
promptly file in such court a certified copy of the record upon
which such violation was found or such penalty imposed. If
any person fails to pay an assessment of a civil penalty after it
has become a final and unappealable order or after the appro-
priate court has entered final judgment in favor of the United
States, the Administrator may request the Attorney General of
the United States to institute a civil action in an appropriate
district court of the United States to collect the penalty, and
such court shall have jurisdiction to hear and decide any such
action. In hearing such action, the court shall have authority
to review the violation and the assessment of the civil penalty
on the record.
(2) The Administrator may issue subpoenas for the attend-
ance and testimony of witnesses and the production of relevant
papers, books, or documents in connection with hearings under
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this section. In case of contumacy or refusal to obey a subpoe-
na issued pursuant to this paragraph and served upon any
person, the district court of the United States for any district
in which such person is found, resides, or transacts business,
upon application by the United States and after notice to such
person, shall have jurisdiction to issue an order requiring such
person to appear and give testimony before the administrative
law judge or to appear and produce documents before the ad-
ministrative law judge, or both, and any failure to obey such
order of the court may be punished by such court as a con-
tempt thereof.
SEC. 326. CIVIL ACTIONS.
(a) AUTHORITY To BRING CIVIL ACTIONS.
(1) CITIZEN SUITS.Except as provided in subsection (e), any
person may commence a civil action on his own behalf against
the following:
(A) An owner or operator of a facility for failure to do
any of the following:
(i) Submit a followup emergency notice under sec-
tion 304(c).
(ii) Submit a material safety data sheet or a list
under section 31 Ha).
(iii) Complete and submit an inventory form under
section 312(a) containing tier I information as de-'
scribed in section 312(dXD.
(iv) Complete and submit a toxic chemical release
form under section 313(a).
(B) The Administrator for failure to do any of the follow-
ing:
(i) Publish inventory forms under section 312(g).
(ii) Respond to a petition to add or delete a chemical
under section 313(eXD within 180 days after receipt of
the petition.
(iii) Publish a toxic chemical release form under
313(g).
(iv) Establish a computer database in accordance
with section 313(j).
(v) Promulgate trade secret regulations under sec-
tion 322(c).
(vi) Render a decision in response to a petition
under section 322(d) within 9 months after receipt of
the petition.
(C) The Administrator, a State Governor, or a State
emergency response commission, for failure to provide a
mechanism for public availability of information in accord-
ance with section 324(a).
(D) A State Governor or a State emergency response
commission for failure to respond to a request for tier II
information under section 312(eX3) within 120 days after
the date of receipt of the request.
(2) STATE OR LOCAL SUITS.
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(A) Any State or local government may commence a civil
action against an owner or operator of a facility for failure
to do any of the following:
(i) Provide notification to the emergency response
commission in the State under section 302(c).
(ii) Submit a material safety data sheet or a list
under section 311(a).
(iii) Make available information requested under
section 311(c).
(iv) Prepare and submit an inventory form under
section 312(a) containing tier I information.
(B) Any State emergency response commission or local
emergency planning committee may commence a civil
action against an owner or operator of a facility for failure
to provide information under section 303(d) or for failure
to submit tier II information under section 312(eXD-
(C) Any State may commence a civil action against the
Administrator for failure to provide information to the
State under section 322(g).
(b) VENUE.
(1) Any action under subsection (a) against an owner or oper-
ator of a facility shall be brought in the district court for the
district in which the alleged violation occurred.
(2) Any action under subsection (a) against the Administra-
tor may be brought in the United States District Court for the
District of Columbia.
(c) RELIEF.The district court shall have jurisdiction in actions
brought under subsection (a) against an owner or operator of a fa-
cility to enforce the requirement concerned and to impose any civil
penalty provided for violation of that requirement. The district
court shall have jurisdiction in actions brought under subsection (a)
against the Administrator to order the Administrator to perform
the act or duty concerned.
(d) NOTICE.
(1) No action may be commenced under subsection (aXIXA)
prior to 60 days after the plaintiff has given notice of the al-
leged violation to the Administrator, the State in which the al-
leged violation occurs, and the alleged violator. Notice under
this paragraph shall be given in such manner as the Adminis-
trator shall prescribe by regulation.
(2) No action may be commenced under subsection (aXIXB) or
(aXIXC) prior to 60 days after the date on which the plaintiff
gives notice to the Administrator, State Governor, or State
emergency response commission (as the case may be) that the
plaintiff will commence the action. Notice under this para-
graph shall be given in such manner as the Administrator
shall prescribe by regulation.
(e) LIMITATION.No action may be commenced under subsection
(a) against an owner or operator of a facility if the Administrator
has commenced and is diligently pursuing an administrative order
or civil action to enforce the requirement concerned or to impose a
civil penalty under this Act with respect to the violation of the re-
quirement.
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(f) COSTS.The court, in issuing any final order in any action
brought pursuant to this section, may award costs of litigation (in-
cluding reasonable attorney and expert witness fees) to the prevail-
ing or the substantially prevailing party whenever the court deter-
mines such an award is appropriate. The court may, if a temporary
restraining order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with the Fed-
eral Rules of Civil Procedure.
(g) OTHER RIGHTS.Nothing in this section shall restrict or
expand any right which any person (or class of persons) may have
under any Federal or State statute or common law to seek enforce-
ment of any requirement or to seek any other relief (including
relief against the Administrator or a State agency).
(h) INTERVENTION.
(1) BY THE UNITED STATES.In any action under this section
the United States or the State, or both, if not a party, may in-
tervene as a matter of right.
(2) BY PERSONS.In any action under this section, any person
may intervene as a matter of right when such person has a
direct interest which is or may be adversely affected by the
action and the disposition of the action may, as a practical
matter, impair or impede the person's ability to protect that
interest unless the Administrator or the State shows that the
person's interest is adequately represented by existing parties
in the action.
SEC. 327. EXEMPTION.
Except as provided in section 304, this title does not apply to the
transportation, including the storage incident to such transporta-
tion, of any substance or chemical subject to the requirements of
this title, including the transportation and distribution of natural
gas.
SEC. 328. REGULATIONS.
The Administrator may prescribe such regulations as may be
necessary to carry out this title.
SEC. 329. DEFINITIONS.
For purposes of this title
(1) ADMINISTRATOR.The term "Administrator" means the
Administrator of the Environmental Protection Agency.
(2) ENVIRONMENT.The term "environment" includes water,
air, and land and the interrelationship which exists among and
between water, air, and land and all living things.
(3) EXTREMELY HAZARDOUS SUBSTANCE.The term "extremely
hazardous substance" means a substance on the list described
in section 302(aX2).
(4) FACILITY.The term "facility" means all buildings, equip-
ment, structures, and other stationary items which are located
on a single site or on contiguous or adjacent sites and which
are owned or operated by the same person (or by any person
which controls, is controlled by, or under common control with,
such person). For purposes of section 304, the term includes
motor vehicles, rolling stock, and aircraft.
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(5) HAZARDOUS CHEMICAL.The term "hazardous chemical"
has the meaning given such term by section 311(e).
(6) MATERIAL SAFETY DATA SHEET.The term "material safety
data sheet" means the sheet required to be developed under
section 1910.1200(g) of title 29 of the Code of Federal Regula-
tions, as that section may be amended from time to time.
(7) PERSON.The term "person" means any individual, trust,
firm, joint stock company, corporation (including a government
corporation), partnership, association, State, municipality, com-
mission, political subdivision of a State, or interstate body.
(8) RELEASE.The term "release" means any spilling, leak-
ing, pumping, pouring, emitting, emptying, discharging, inject-
ing, escaping, leaching, dumping, or disposing into the environ-
ment (including the abandonment or discarding of barrels, con-
tainers, and other closed receptacles) of any hazardous chemi-
cal, extremely hazardous substance, or toxic chemical.
(9) STATE.The term "State" means any State of the United
States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the United States Virgin Is-
lands, the Northern Mariana Islands, and any other territory
or possession over which the United States has jurisdiction.
(10) Toxic CHEMICAL.The term "toxic chemical" means a
substance on the list described in section 313(c).
SEC. 330. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for fiscal years begin-
ning after September 30, 1986, such sums as may be necessary to
carry out this title.
TITLE IVRADON GAS AND INDOOR AIR QUALITY
RESEARCH
SEC. 401. SHORT TITLE.
This title may be cited as the "Radon Gas and Indoor Air Quality
Research Act of 1986".
SEC. 402. FINDINGS.
The Congress finds that:
(1) High levels of radon gas pose a serious health threat in
structures in certain areas of the country.
(2) Various scientific studies have suggested that exposure to
radon, including exposure to naturally occurring radon and
indoor air pollutants, poses a public health risk.
(3) Existing Federal radon and indoor air pollutant research
programs are fragmented and underfunded.
(4) An adequate information base concerning exposure to
radon and indoor air pollutants should be developed by the ap-
propriate Federal agencies.
SEC. 403. RADON GAS AND INDOOR AIR QUALITY RESEARCH PROGRAM.
(a) DESIGN OF PROGRAM.The Administrator of the Environmen-
tal Protection Agency shall establish a research program with re-
spect to radon gas and indoor air quality. Such program shall be
designed to
(1) gather data and information on all aspects of indoor air
quality in order to contribute to the understanding of health
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problems associated with the existence of air pollutants in the
indoor environment;
(2) coordinate Federal, State, local, and private research and
development efforts relating to the improvement of indoor air
quality; and
(3) assess appropriate Federal Government actions to miti-
gate the environmental and health risks associated with indoor
air quality problems.
(b) PROGRAM REQUIREMENTS.The research program required
under this section shall include
(1) research and development concerning the identification,
characterization, and monitoring of the sources and levels of
indoor air pollution, including radon, which includes research
and development relating to
(A) the measurement of various pollutant concentrations
and their strengths and sources,
(B) high-risk building types, and
(C) instruments for indoor air quality data collection;
(2) research relating to the effects of indoor air pollution and
radon on human health;
(3) research and development relating to control technologies
or other mitigation measures to prevent or abate indoor air
pollution (including the development, evaluation, and testing of
individual and generic control devices and systems);
(4) demonstration of methods for reducing or eliminating
indoor air pollution and radon, including sealing, venting, and
other methods that the Administrator determines may be ef-
fective;
(5) research, to be carried out in conjunction with the Secre-
tary of Housing and Urban Development, for the purpose of de-
veloping
(A) methods for assessing the potential for radon con-
tamination of new construction, including (but not limited
to) consideration of the moisture content of soil, porosity of
soil, and radon content of soil; and
(B) design measures to avoid indoor air pollution; and
(6) the dissemination of information to assure the public
availability of the findings of the activities under this section.
(c) ADVISORY COMMITTEES.The Administrator shall establish a
committee comprised of individuals representing Federal agencies
concerned with various aspects of indoor air quality and an adviso-
ry group comprised of individuals representing the States, the sci-
entific community, industry, and public interest organizations to
assist him in carrying out the research program for radon gas and
indoor air quality.
(d) IMPLEMENTATION PLAN.Not later than 90 days after the en-
actment of this Act, the Administrator shall submit to the Con-
gress a plan for implementation of the research program under
this section. Such plan shall also be submitted to the EPA Science
Advisory Board, which shall, within a reasonable period of time,
submit its comments on such plan to Congress.
(e) REPORT.Not later than 2 years after the enactment of this
Act, the Administrator shall submit to Congress a report respecting
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his activities under this section and making such recommendations
as appropriate.
SEC. 404. CONSTRUCTION OF TITLE.
Nothing in this title shall be construed to authorize the Adminis-
trator to carry out any regulatory program or any activity other
than research, development, and related reporting, information dis-
semination, and coordination activities specified in this title. Noth-
ing in this title shall be construed to limit the authority of the Ad-
ministrator or of any other agency or instrumentality of the
United States under any other authority of law.
SEC. 405. AUTHORIZATIONS.
There are authorized to be appropriated to carry out the activi-
ties under this title and under section 118(k) of the Superfund
Amendments and Reauthorization Act of 1986 (relating to radon
gas assessment and demonstration program) not to exceed
$5,000,000 for each of the fiscal years 1987, 1988, and 1989. Of such
sums appropriated in fiscal years 1987 and 1988, two-fifths shall be
reserved for the implementation of section 118(kX2).
TITLE VAMENDMENTS OF THE INTERNAL REVENUE
CODE OF 1986
SEC. 501. SHORT TITLE.
This title may be cited as the "Superfund Revenue Act of 1986".
PART ISUPERFUND AND ITS REVENUE SOURCES
SEC. 511. EXTENSION OF ENVIRONMENTAL TAXES.
(a) IN GENERAL.Subsection (d) of section 4611 of the Internal
Revenue Code of 1986 (relating to termination) is amended to read
as follows:
"(d) APPLICATION OF TAXES.
"(1) IN GENERAL.Except as provided in paragraphs (2) and
(3), the taxes imposed by this section shall apply after Decem-
ber 31,1986, and before January 1,1992.
"(2) NO TAX IF UNOBLIGATED BALANCE IN FUND EXCEEDS
$3,500,000,000.If on December 31, 1989, or December 31,
1990
"(A) the unobligated balance in the Hazardous Sub-
stance Superfund exceeds $3,500,000,000, and
"(B) the Secretary, after consultation with the Adminis-
trator of the Environmental Protection Agency, deter-
mines that the unobligated balance in the Hazardous Sub-
stance Superfund will exceed $3,500,000,000 on Decem-
ber 31 of 1990 or 1991, respectively, if no tax is imposed
under section 59A, this section, and sections 4661 and
4671,
then no tax shall be imposed under this section during 1990 or
1991, as the case may be.
"(3) NO TAX IF AMOUNTS COLLECTED EXCEED $6,650,000,000.
"(A) ESTIMATES BY SECRETARY.The Secretary as of the
close of each calendar quarter (and at such other times as
the Secretary determines appropriate) shall make an esti-
mate of the amount of taxes which will be collected under
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section 59A, this section, and sections 4661 and 4671 and
credited to the Hazardous Substance Superfund during the
period beginning January 1, 1987, and ending December
31, 1991.
"(B) TERMINATION IF $6,650,000,000 CREDITED BEFORE JAN-
UARY i, 1992.If the Secretary estimates under subpara-
graph (A) that more than $6,650,000,000 will be credited to
the Fund before January 1, 1992, no tax shall be imposed
under this section after the date on which (as estimated by
the Secretary) $6,650,000,000 will be so credited to the
Fund.".
(b) TECHNICAL AMENDMENT.Section 303 of the Comprehensive
Environmental Response Compensation, and Liability Act of 1980
is hereby repealed.
(c) EFFECTIVE DATE.The amendments made by this section shall
take effect on January 1, 1987.
SEC. 512. INCREASE IN TAX ON PETROLEUM.
(a) IN GENERAL.Subsections (a) and (b) of section 4611 of the In-
ternal Revenue Code of 1986 (relating to environmental tax on pe-
troleum) are each amended by striking out "of 0.79 cent a barrel"
and inserting in lieu thereof "at the rate specified in subsection
(c)".
(b) INCREASE IN TAX.Section 4611 of such Code is amended by
redesignating subsections (c) and (d) as subsections (d) and (e), re-
spectively, and by inserting after subsection (b) the following new
subsection:
"(c) RATE OF TAX.
"(1) IN GENERAL.Except as provided in paragraph (2), the
rate of the taxes imposed by this section is 8.2 cento a barrel.
"(2) IMPORTED PETROLEUM PRODUCTS.The rate of the tax im-
posed by subsection (aX2) shall be 11.7 cents a barrel."
(c) ALLOWANCE OF CREDIT FOR CRUDE OIL RETURNED TO PIPE-
LINE.Section 4612 of such Code (relating to definitions and special
rules) is amended by redesignating subsection (c) as subsection (d)
and by inserting after subsection (b) the following new subsection:
"(c) CREDIT WHERE CRUDE OIL RETURNED TO PIPELINE.Under
regulations prescribed by the Secretary, if an operator of a United
States refinery
"(1) removes crude oil from a pipeline, and
"(2) returns a portion of such crude oil into a stream of other
crude oil in the same pipeline,
there shall be allowed as a credit against the tax imposed by sec-
tion 4611 to such operator an amount equal to the product of the
rate of tax imposed by section 4611 on the crude oil so removed by
such operator and the number of barrels of crude oil returned by
such operator to such pipeline. Any crude oil so returned shall be
treated for purposes of this subchapter as crude oil on which no tax
has been imposed by section 4611.'
(d) EFFECTIVE DATE.The amendments made by this section shall
take effect on January 1, 1987.
SEC. 513. CHANGES RELATING TO TAX ON CERTAIN CHEMICALS.
(a) INCREASE IN RATE OF TAX ON XYLENE.The table contained in
subsection (b) of section 4661 of the Internal Revenue Code of 1986
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(relating to tax on certain chemicals) is amended by adding at the
end thereof the following new sentence:
"For periods before 1992, the item relating to xylene in the preced-
ing table shall be applied by substituting '10.13' for '4.87'."
(b) EXEMPTION FOR EXPORTS OF TAXABLE CHEMICALS.
(1) Section 4662 of such Code (relating to definitions and spe-
cial rules) is amended by redesignating subsection (e) as subsec-
tion (f) and by inserting after subsection (d) the following new
subsection:
"(e) EXEMPTION FOR EXPORTS OF TAXABLE CHEMICALS.
"(1) TAX-FREE SALES.
"(A) IN GENERAL.No tax shall be imposed under sec-
tion 4661 on the sale by the manufacturer or producer of
any taxable chemical for export, or for resale by the pur-
chaser to a second purchaser for export.
"(B) PROOF OF EXPORT REQUIRED.Rules similar to the
rules of section 4221(b) shall apply for purposes of subpara-
graph (A).
"(2) CREDIT OR REFUND WHERE TAX PAID.
"(A) IN GENERAL.Except as provided in subparagraph
(B), if-
"(i) tax under section 4661 was paid with respect to
any taxable chemical, and
(iiXD such chemical was exported by any person, or
"(II) such chemical was used as a material in the
manufacture or production of a substance which was
exported by any person and which, at the time of
export, was a taxable substance (as defined in section
4672(a)),
credit or refund (without interest) of such tax shall be al-
lowed or made to the person who paid such tax.
"(B) CONDITION TO ALLOWANCE.No credit or refund
shall be allowed or made under subparagraph (A) unless
the person who paid the tax establishes that he
"(i) has repaid or agreed to repay the amount of the
tax to the person who exported the taxable chemical
or taxable substance (as so defined), or
"(ii) has obtained the written consent of such export-
er to the allowance of the credit or the making of the
refund.
"(3) REGULATIONS.The Secretary shall prescribe such regu-
lations as may be necessary to carry out the purposes of this
subsection. **
(2) Paragraph (1) of section 4662(d) of such Code (relating to
refund or credit for certain uses) is amended
(A) by striking out "the sale of which by such person
would be taxable under such section" and inserting in lieu
thereof "which is a taxable chemical", and
(B) by striking out "imposed by such section on the other
substance manufactured or produced" and inserting in lieu
thereof "imposed by such section on the other substance
manufactured or produced (or which would have been im-
posed by such section on such other substance but for sub-
section (b) or (e) of this section)".
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(c) SPECIAL RULE FOR XYLENE.Subsection (b) of section 4662 of
such Code (relating to exceptions; other special rules) is amended
by adding after paragraph (6) the following new paragraph:
"(7) SPECIAL RULE FOR XYLENE.Except in the case of any
substance imported into the United States or exported from
the United States, the term 'xylene' does not include any sepa-
rated isomer of xylene."
(d) EXEMPTION FOR CERTAIN RECYCLED CHEMICALS.Subsection Ob)
of section 4662 of such Code (relating to exceptions; other special
rules) is amended by adding after paragraph (7) the following new
paragraph:
"(8) RECYCLED CHROMIUM, COBALT, AND NICKEL.
"(A) IN GENERAL.No tax shall be imposed under sec-
tion 4661(a) on any chromium, cobalt, or nickel which is di-
verted or recovered in the United States from any solid
waste as part of a recycling process (and not as part of the
original manufacturing or production process).
"(B) EXEMPTION NOT TO APPLY WHILE CORRECTIVE ACTION
UNCOMPLETED.Subparagraph (A) shall not apply during
any period that required corrective action by the taxpayer
at the unit at which the recycling occurs is uncompleted.
"(C) REQUIRED CORRECTIVE ACTION.For purposes of sub-
paragraph (B), required corrective action shall be treated
as uncompleted during the period
"(i) beginning on the date that the corrective action
is required by the Administrator or an authorized
State pursuant to
"(I) a final permit under section 3005 of the
Solid Waste Disposal Act or a final order under
section 3004 or 3008 of such Act, or
"(II) a final order under section 106 of the Com-
prehensive Environmental Response, Compensa-
tion, and Liability Act of 1980, and
"(ii) ending on the date the Administrator or such
State (as the case may be) certifies to the Secretary
that such corrective action has been completed.
"(D) SPECIAL RULE FOR GROUNDWATER TREATMENT.In
the case of corrective action requiring ground water treat-
ment, such action shall be treated as completed as of the
close of the 10-year period beginning on the date such
action is required if such treatment complies with the
permit or order applicable under subparagraph (CXi)
throughout such period. The preceding sentence shall
cease to apply beginning on the date such treatment
ceases to comply with such permit or order.
"(E) SOLID WASTE.For purposes of this paragraph, the
term 'solid waste' has the meaning given such term by sec-
tion 1004 of the Solid Waste Disposal Act, except that such
term shall not include any byproduct, coproduct, or other
waste from any process of smelting, refining, or otherwise
extracting any metal."
(e) EXEMPTION FOR ANIMAL FEED SUBSTANCES.
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(1) IN GENERAL.Subsection fb) of section 4662 of such Code
(relating to exceptions; other special rules) is amended by
adding after paragraph (8) the following new paragraph:
"(9) SUBSTANCES USED IN THE PRODUCTION OF ANIMAL FEED.
"(A) IN GENERAL.In the case of
"(i) nitric acid,
"(ii) sulfuric acid,
"(iii) ammonia, or
"(iv) methane used to produce ammonia,
which is a qualified animal feed substance, no tax shall be
imposed under section 4661(a).
"(B) QUALIFIED ANIMAL FEED SUBSTANCE.For purposes
of this section, the term 'qualified animal feed substance'
means any substance
"(i) used in a qualified animal feed use by the manu-
facturer, producer, or importer,
"(ii) sold for use by any purchaser in a qualified
animal feed use, or
"(iii) sold for resale by any purchaser for use, or
resale for ultimate use, in a qualified animal feed use.
"(C) QUALIFIED ANIMAL FEED USE.The term "qualified
animal feed use" means any use in the manufacture or
production of animal feed or animal feed supplements, or
of ingredients used in animal feed or animal feed supple-
ments.
"(D) TAXATION OF NONQUALIFIED SALE OR USE.For pur-
poses of section 4661 (a), if no tax was imposed by such sec-
tion on the sale or use of any chemical by reason of sub-
paragraph (A), the 1st person who sells or uses such chemi-
cal other than in a sale or use described in subparagraph
(A) shall be treated as the manufacturer of such chemi-
cal."
(2) REFUND OR CREDIT FOR SUBSTANCES USED IN THE PRODUC-
TION OF ANIMAL FEED.Subsection (d) of section 4662 of such
Code (relating to refunds and credits with respect to the tax on
certain chemicals) is amended by adding at the end thereof the
following new paragraph:
"(4) USE IN THE PRODUCTION OF ANIMAL FEED.Under regula-
tions prescribed by the Secretary, if
"(A) a tax under section 4661 was paid with respect to
nitric acid, sulfuric acid, ammonia, or methane used to
produce ammonia, without regard to subsection CbX9), and
"(B) any person uses such substance as a qualified
animal feed substance,
then an amount equal to the excess of the tax so paid over the
tax determined with regard to subsection (bX9) shall be allowed
as a credit or refund (without interest) to such person in the
same manner as if it were an overpayment of tax imposed by
this section."
(f) CERTAIN EXCHANGES BY TAXPAYERS NOT TREATED AS SALES.
Subsection (c) of section 4662 of such Code (relating to use by
manufacturers) is amended to read as follows:
"(c) USE AND CERTAIN EXCHANGES BY MANUFACTURER, ETC.
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"(1) USE TREATED AS SALE.Except as provided in subsections
(b) and (e), if any person manufactures, produces, or imports
any taxable chemical and uses such chemical, then such
person shall be liable for tax under section 4661 in the same
manner as if such chemical were sold by such person.
"(2) SPECIAL RULES FOR INVENTORY EXCHANGES.
"(A) IN GENERAL.Except as provided in this paragraph,
in any case in which a manufacturer, producer, or import-
er of a taxable chemical exchanges such chemical as part
of an inventory exchange with another person
"(i) such exchange shall not be treated as a sale, and
"(ii) such other person shall, for purposes of section
4661, be treated as the manufacturer, producer, or im-
porter of such chemical.
"(B) REGISTRATION REQUIREMENT.Subparagraph (A)
shall not apply to any inventory exchange unless
"(i) both parties are registered with the Secretary as
manufacturers, producers, or importers of taxable
chemicals, and
"(ii) the person receiving the taxable chemical has,
at such time as the Secretary may prescribes, notified
the manufacturer, producer, or importer of such per-
son's registration number and the internal, revenue
district in which such person is registered.
"(C) INVENTORY EXCHANGE.For purposes of this para-
graph, the term 'inventory exchange' means any exchange
in which 2 persons exchange property which is, in the
hands of each person, property described in section
1221(1).".
(g) SPECIAL RULES RELATING TO HYDROCARBON STREAMS CONTAIN-
ING ORGANIC TAXABLE CHEMICALS.Subsection (b) of section 4662
of such Code (relating to exceptions; other special rules) is amended
by adding after paragraph (9) the following new paragraph:
"(10) HYDROCARBON STREAMS CONTAINING MIXTURES OF OR-
GANIC TAXABLE CHEMICALS.
"(A) IN GENERAL.No tax shall be imposed under sec-
tion 4661(a) on any organic taxable chemical while such
chemical is part of an intermediate hydrocarbon stream
containing a mixture of organic taxable chemicals;.
"(B) REMOVAL, ETC., TREATED AS USE.For purposes of
this part, if any organic taxable chemical on which no tax
was imposed by reason of subparagraph (A) is isolated, ex-
tracted, or otherwise removed from, or ceases to be part of,
an intermediate hydrocarbon stream
"(i) such isolation, extraction, removal, or cessation
shall be treated as use by the person causing such
event, and
"(ii) such person shall be treated as the manufactur-
er of such chemical.
"(C) REGISTRATION REQUIREMENT.Subparagraph (A)
shall not apply to any sale of any intermediate hydrocar-
bon stream unless the registration requirements of clauses
(i) and (ii) of subsection (cX2XB) are satisfied.
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"(D) ORGANIC TAXABLE CHEMICAL.For purposes of this
paragraph, the term 'organic taxable chemical' means any
taxable chemical which is an organic substance."
(h) EFFECTIVE DATES.
(1) IN GENERAL.Except as otherwise provided in this subsec-
tion, the amendments made by this section shall take effect on
January 1, 1987.
(2) REPEAL OF TAX ON XYLENE FOR PERIODS BEFORE OCTOBER i,
1985.
(A) REFUND OF TAX PREVIOUSLY IMPOSED.
(i) IN GENERAL.In the case of any tax imposed by
section 4661 of the Internal Revenue Code of 1954 on
the sale or use of xylene before October 1, 1985, such
tax (including interest, additions to tax, and additional
amounts) shall not be assessed, and if assessed, the as-
sessment shall be abated, and if collected shall be
credited or refunded (with interest) as an overpay-
ment.
(ii) CONDITION TO ALLOWANCE.Clause (i) shall not
apply to a sale of xylene unless the person who (but
for clause (i)) would be liable for the tax imposed by
section 4661 on such sale meets requirements similar
to the requirements of paragraph (1) of section 6416(a)
of such Code. For purposes of the preceding sentence,
subparagraph (A) of section 6416(aXl) of such Code
shall be applied without regard to the material preced-
ing "has not collected".
(B) WAIVER OF STATUTE OF LIMITATIONS.If on the date
of the enactment of this Act (or at any time within 1 year
after such date of enactment) refund or credit of any over-
payment of tax resulting from the application of subpara-
graph (A) is barred by any law or rule of law, refund or
credit of such overpayment shall, nevertheless, be made or
allowed if claim therefor is filed before the date 1 year
after the date of the enactment of this Act.
(O XYLENE TO INCLUDE ISOMERS.For purposes of this
paragraph, the term "xylene" shall include any isomer of
xylene whether or not separated.
(3) INVENTORY EXCHANGES.
(A) IN GENERAL.Except as otherwise provided in this
paragraph' the amendment made by subsection (f) shall
apply as if included in the amendments made by section
211 of the Hazardous Substance Response Revenue Act of
1980.
(B) RECIPIENT MUST AGREE TO TREATMENT AS MANUFAC-
TURER.In the case of any inventory exchange before Jan-
uary 1, 1987, the amendment made by subsection (f) shall
apply only if the person receiving the chemical from the
manufacturer, producer, or importer in the exchange
agrees to be treated as the manufacturer, producer, or im-
porter of such chemical for purposes of subchapter B of
chapter 38 of the Internal Revenue Code of 1954.
(C) EXCEPTION WHERE MANUFACTURER PAID TAX.In the
case of any inventory exchange before January 1, 1987, the
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amendment made by subsection (f) shall not apply if the
manufacturer, producer, or importer treated such ex-
change as a sale for purposes of section 4661 of such Code
and paid the tax imposed by such section.
(D) REGISTRATION REQUIREMENTS.Section 4662(cX2XB) of
such Code (as added by subsection (f)) shall apply to ex-
changes made after December 31, 1986.
(4) EXPORTS OF TAXABLE SUBSTANCES.Subclause (II) of sec-
tion 4662(eX2XAXii) of such Code (as added by this section)
shall not apply to the export of any taxable substance (as de-
fined in section 4672(a) of such Code) before January 1, 1989.
(5) SALES OF INTERMEDIATE HYDROCARBON STREAMS.
(A) IN GENERAL.Except as otherwise provided in this
paragraph, the amendment made by subsection (g) shall
apply as if included in the amendments made by section
211 of the Hazardous Substances Response Revenue Act of
1980.
(B) PURCHASER MUST AGREE TO TREATMENT AS MANUFAC-
TURER.In the case of any sale before January 1, 1987, of
any intermediate hydrocarbon stream, the amendment
made by subsection (g) shall apply only if the purchaser
agrees to be treated as the manufacturer, producer, or im-
porter for purposes of subchapter B of chapter 38 of such
Code.
(C) EXCEPTION WHERE MANUFACTURER PAID TAX:.In the
case of any sale before January 1, 1987, of any intermedi-
ate hydrocarbon stream, the amendment made by subsec-
tion (g) shall not apply if the manufacturer, producer, or
importer of such stream paid the tax imposed by section
4661 with respect to such sale on all taxable chemicals
contained in such stream.
(D) REGISTRATION REQUIREMENTS.Section 4662(bX10XC)
of such Code (as added by subsection (g)) shall apply to ex-
changes made after December 31, 1986.
SEC. 514. REPEAL OF POST-CLOSURE TAX AND TRUST FUND.
(a) REPEAL OF TAX.
(1) Subchapter C of chapter 38 of the Internal Revenue Code
of 1986 (relating to tax on hazardous wastes) is hereby re-
pealed.
(2) The table of subchapters for such chapter 38 is amended
by striking out the item relating to subchapter C.
(b) REPEAL OF TRUST FUND.Section 232 of the Hazardous Sub-
stance Response Revenue Act of 1980 is hereby repealed.
(c) EFFECTIVE DATE.
(1) IN GENERAL.The amendments made by this section shall
take effect on October 1, 1983.
(2) WAIVER OF STATUTE OF LIMITATIONS.If on the date of the
enactment of this Act (or at any time within 1 year after such
date of enactment) refund or credit of any overpayment of tax
resulting from the application of this section is barred by any
law or rule of law, refund or credit of such overpayment shall,
nevertheless, be made or allowed if claim therefor is filed
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before the date 1 year after the date of the enactment of this
Act.
SEC. 515. TAX ON CERTAIN IMPORTED SUBSTANCES DERIVED FROM TAX-
ABLE CHEMICALS.
(a) GENERAL RULE.Chapter 38 of the Internal Revenue Code of
1986 is amended by adding after subchapter B the following new
subchapter:
"Subchapter CTax on Certain Imported Substances
"Sec. 4671. Imposition of tax.
"Sec. 4672. Definitions and special rules.
"SEC. 4671. IMPOSITION OF TAX.
"(a) GENERAL RULE.There is hereby imposed a tax on any tax-
able substance sold or used by the importer thereof.
"(b) AMOUNT OF TAX.
"(1) IN GENERAL.Except as provided in paragraph (2), the
amount of the tax imposed by subsection (a) with respect to
any taxable substance shall be the amount of the tax which
would have been imposed by section 4661 on the taxable
chemicals used as materials in the manufacture or production
of such substance if such taxable chemicals had been sold in
the United States for use in the manufacture or production of
such taxable substance.
"(2) RATE WHERE IMPORTER DOES NOT FURNISH INFORMATION
TO SECRETARY.If the importer does not furnish to the Secre-
tary (at such time and in such manner as the Secretary shall
prescribe) sufficient information to determine under paragraph
(1) the amount of the tax imposed by subsection (a) on any tax-
able substance, the amount of the tax imposed on such taxable
substance shall be 5 percent of the appraised value of such sub-
stance as of the time such substance was entered into the
United States for consumption, use, or warehousing.
"(3) AUTHORITY TO PRESCRIBE RATE IN LIEU OF PARAGRAPH (2)
RATE.The Secretary may prescribe for each taxable substance
a tax which, if prescribed, shall apply in lieu of the tax speci-
fied in paragraph (2) with respect to such substance. The tax
prescribed by the Secretary shall be equal to the amount of tax
which would be imposed by subsection (a) with respect to the
taxable substance if such substance were produced using the
predominant method of production of such substance.
"(c) EXEMPTIONS FOR SUBSTANCES TAXED UNDER SECTIONS 4611
AND 4661.No tax shall be imposed by this section on the sale or
use of any substance if tax is imposed on such sale or use under
section 4611 or 4661.
"(d) TAX-FREE SALES, ETC. FOR SUBSTANCES USED AS CERTAIN
FUELS OR IN THE PRODUCTION OF FERTILIZER OR ANIMAL FEED.
Rules similar to the following rules shall apply for purposes of ap-
plying this section with respect to taxable substances used or sold
for use as described in such rules:
"(1) Paragraphs (2), (5), and (9) of section 4662(b) (relating to
tax-free sales of chemicals used as fuel or in the production of
fertilizer or animal feed).
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"(2) Paragraphs (2), (3), and (4) of section 4662(d) (relating to
refund or credit of tax on certain chemicals used as fuel or in
the production of fertilizer or animal feed).
"(e) TERMINATION.No tax shall be imposed under this section
during any period during which no tax is imposed under section
4611(a).
"SEC. 4672. DEFINITIONS AND SPECIAL RULES.
"(a) TAXABLE SUBSTANCE.For purposes of this subchapter
"(1) IN GENERAL.The term 'taxable substance' means any
substance which, at the time of sale or use by the importer, is
listed as a taxable substance by the Secretary for purposes of
this subchapter.
"(2) DETERMINATION OF SUBSTANCES ON LIST.A substance
shall be listed under paragraph (1) if
"(A) the substance is contained in the list under para-
graph (3), or
"(B) the Secretary determines, in consultation with the
Administrator of the Environmental Protection Agency
and the Commissioner of Customs, that taxable chemicals
constitute more than 50 percent of the weight of the mate-
rials used to produce such substance (determined on the
basis of the predominant method of production).
"(3) INITIAL LIST OP TAXABLE SUBSTANCES.
Cumene
Styrene
Ammonium nitrate
Nickel oxide
Isopropyl alcohol
Ethylene glycol
Vinyl chloride
Polyethylene resins, total
Polybutadiene
Styrene-butadiene, latex
Styrene-butadiene, snpf
Synthetic rubber, not containing fillers
Urea
Ferronickel
Ferrochromium nov 3 pet
Ferrochrome pv 3 pet. carbon
Unwrought nickel
Nickel waste and scrap
Wrought nickel rods and wire
Nickel powders
Phenolic resins
Polyvinylchloride resins
Polystyrene resins and copolymers
Ethyl alcohol for nonbeverage use
Ethylbenzene
Methylene chloride
Polypropylene
Propylene glycol
Formaldehyde
Acetone
Acrylonitrile
Methanol
Propylene oxide
Polypropylene resins
Ethylene oxide
Ethylene dichloride
Cyclohexane
laophthalic acid
Maleic anhydride
Phthalic anhydride
Ethyl methyl ketone
Chloroform
Carbon tetrachloride
Chromic acid
Hydrogen peroxide
Polystyrene homopolymer resins
Melamine
Acrylic and methacrylic acid resins
Vinyl resins
Vinyl resins, NSPF.
"(4) MODIFICATIONS TO LIST.
"(A) IN GENERAL.The Secretary may add substances to
or remove substances from the list under paragraph (3) (in-
cluding items listed by reason of paragraph (2)) as neces-
sary to carry out the purposes of this subchapter.
"(B) AUTHORITY TO ADD SUBSTANCES TO utsr BASED ON
VALUE.The Secretary may, to the extent necessary to
carry out the purposes of this subchapter, add any sub-
stance to the list under paragraph (3) if such substance
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would be described in paragraph (2KB) if 'value' were sub-
stituted for 'weight' therein.
"(b) OTHER DEFINITIONS.For purposes of this subchapter
"(1) IMPORTER.The term 'importer' means the person enter-
ing the taxable substance for consumption, use, or warehous-
ing.
"(2) TAXABLE CHEMICALS; UNITED STATES.The terms 'taxable
chemical' and 'United States' have the respective meanings
given such terms by section 4662(a).
"(c) DISPOSITION OF REVENUES FROM PUERTO Rico AND THE
VIRGIN ISLANDS.The provisions of subsections (aX3) and (bX3) of
section 7652 shall not apply to any tax imposed by section 4671."
(b) CLERICAL AMENDMENT.The table of subchapters for chapter
38 of such Code is amended by adding after the item relating to
subchapter B the following new item:
"SUBCHAPTER C. Tax on certain imported substances."
(c) EFFECTIVE DATE.The amendments made by this section shall
take effect on January 1, 1989.
(d) STUDY.
(1) IN GENERAL.The Secretary of the Treasury or his dele-
gate shall conduct a study of issues relating to the implementa-
tion of
(A) the tax imposed by the section 4671 of the Internal
Revenue Code of 1986 (as added by this section), and
(B) the credit for exports of taxable substances under
section 4661(eX2XAXiiXII) of such Code.
In conducting such study, the Secretary of the Treasury or his
delegate shall consult with the Environmental Protection
Agency and the International Trade Commission.
(2) REPORT.The report of the study under paragraph (1)
shall be submitted not later than January 1, 1988, to the Com-
mittee on Ways and Means of the House of Representatives
and the Committee on Finance of the Senate.
SEC. 516. ENVIRONMENTAL TAX.
(a) IN GENERAL.Subchapter A of chapter 1 of the Internal Reve-
nue Code of 1986 (relating to income taxes) is amended by adding
at the end thereof the following new part:
"PART VIIENVIRONMENTAL TAX
"Sec. 59A. Environmental tax.
"SEC. 59A. ENVIRONMENTAL TAX.
"(a) IMPOSITION OF TAX.In the case of a corporation, there is
hereby imposed (in addition to any other tax imposed by this sub-
title) a tax equal to 0.12 percent of the excess of
"(1) the modified alternative minimum taxable income of
such corporation for the taxable year, over
"(2) $2,000,000.
"(b) MODIFIED ALTERNATIVE MINIMUM TAXABLE INCOME.For
purposes of this section, the term 'modified alternative minimum
taxable income' means alternative minimum taxable income (as de-
fined in section 55(bX2)) but determined without regard to
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"(1) the alternative tax net operating loss deduction (as de-
fined in section 56(d)), and
"(2) the deduction allowed under section 164(aX5).
"(c) SPECIAL RULES.
"(1) SHORT TAXABLE YEARS. The application of this section to
taxable years of less than 12 months shall be in accordance
with regulations prescribed by the Secretary.
"(2) SECTION is NOT TO APPLY. Section 15 shall not apply to
the tax imposed by this section.
"(d) APPLICATION OF TAX.
"(1) IN GENERAL. The tax imposed by this section shall
apply to taxable years beginning after December 31, 1986, and
before January 1, 1992.
"(2) EARLIER TERMINATION. The tax imposed by this section
shall not apply to taxable years
"(A) beginning during a calendar year during which no
tax is imposed under section 461 l(a) by reason of para-
graph (2) of section 461 He), and
"(B) beginning after the calendar year which includes
the termination date under paragraph (3) of section
(b) TECHNICAL AMENDMENTS.
(1) NO CREDITS ALLOWED AGAINST TAX.
(A) Paragraph (2) of section 26(b) of such Code, as
amended by the Tax Reform Act of 1986, is amended by
redesignating subparagraphs (B) through (J) as subpara-
graphs (C) through (K), respectively, and by inserting after
subparagraph (A) the following new subparagraph:
"(B) section 59 A (relating to environmental tax),".
(B) Paragraph (3) of section 936(a) of such Code, as so
amended, is amended by redesignating subparagraphs (A),
(B), and (C) as subparagraphs (B), (C), and (D), respectively,
and by inserting before subparagraph (B) (as so redesignat-
ed) the following new subparagraph:
"(A) section 59A (relating to environmental tax),".
(2) TAX TO BE DEDUCTIBLE FOR INCOME TAX PURPOSES.
(A) Subsection (a) of section 164 of such Code (relating to
deduction for taxes), as so amended, is amended by insert-
ing after paragraph (4) the following new paragraph:
"(5) The environmental tax imposed by section 59A."
(B) Subsection (a) of section 275 of such Code is amended
by adding at the end thereof the following new sentence:
"Paragraph (1) shall not apply to the tax imposed by sec-
tion 59A.
(3) LIMITATION IN CASE OF CONTROLLED CORPORATIONS. Sub-
section (a) of section 1561 of such Code (relating to limitations
on certain multiple tax benefits in the case of certain con-
trolled corporations), as amended by the Tax Reform Act of
1986, is amended
(A) by striking out "and" at the end of paragraph (2), by
striking out the period at the end of paragraph (3) and in-
serting in lieu thereof ", and", and by inserting after para-
graph (3) the following new paragraph:
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"(4) one $2,000,000 amount for purposes of computing the tax
imposed by section 59A.", and
(B) by striking out "(and the amount specified in para-
graph (3))" and inserting in lieu thereof ", the amount
specified in paragraph (3), and the amount specified in
paragraph (4)".
(4) AMENDMENTS TO ESTIMATED TAX PROVISIONS.
(A) TAX LIABILITY MUST BE ESTIMATED.
(i) Paragraph (1) of section 6154(c) of such Code, as
so amended, is amended by striking out "and" at the
end of subparagraph (A), by striking out "over" at the
end of subparagraph (B) and inserting in lieu thereof
"and", and by adding at the end thereof the following
new subparagraph:
"(C) the environmental tax imposed by section 59A,
over".
(ii) Subsection (a) of section 6154 of such Code is
amended by striking out "section 11" and inserting
"section 11, 59A,".
(C) CONFORMING AMENDMENT TO OVERPAYMENT OP ESTI-
MATED TAX.Subparagraph (A) of section 6425(cXD of such
Code, as amended by the Tax Reform Act of 1986, is
amended by striking out "plus" at the end of clause (i), by
striking out "over" at the end of clause (ii) and inserting
in lieu thereof "plus", and by adding at the end thereof
the following new clause:
"(iii) the tax imposed by section 59A, over".
(D) CONFORMING AMENDMENT TO PENALTY FOR FAILURE TO
PAY ESTIMATED TAX.Paragraph (1) of section 6655Xf) of
such Code (defining tax), as so amended, is amended by
striking out "plus at the end of subparagraph (A), by
striking out "over" at the end of subparagraph (B) and in-
serting in lieu thereof "plus", and by adding at the end
thereof the following new subparagraph:
"(C) the tax imposed by section 59A, over".
(5) CLERICAL AMENDMENT.The table of parts for subchapter
A of chapter 1 of such Code is amended by adding at the end
thereof the following new item:
"Part VH. Environmental tax."
(c) EFFECTIVE DATE.The amendments made by this section shall
apply to taxable years beginning after December 31, 1986.
SEC. 517. HAZARDOUS SUBSTANCE SUPERFUND.
(a) IN GENERAL.Subchapter A of chapter 98 of the Internal Rev-
enue Code of 1986 (relating to establishment of trust funds) is
amended by adding after section 9506 the following new section:
"SEC. 9507. HAZARDOUS SUBSTANCE SUPERFUND.
"(a) CREATION OP TRUST FUND.There is established in the
Treasury of the United States a trust fund to be known as the
'Hazardous Substance Superfund' (hereinafter in this section re-
ferred to as the 'Superfund'), consisting of such amounts as ma>
be
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"(1) appropriated to the Super-fund as provided in this sec-
tion,
"(2) appropriated to the Superfund pursuant to section 517(b)
of the Superfund Revenue Act of 1986, or
"(3) credited to the Superfund as provided in section 9602(b).
"(b) TRANSFERS TO SUPERFUND.There are hereby appropriated
to the Superfund amounts equivalent to
"(1) the taxes received in the Treasury under section 59A,
4611, 4661, or 4671 (relating to environmental taxes),
"(2) amounts recovered on behalf of the Superfund under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (hereinafter in this section referred to as
'CERCLA'),
"(3) all moneys recovered or collected under section
311(bX6XB) of the Clean Water Act,
"(4) penalties assessed under title I of CERCLA, and
"(5) punitive damages under section 107(cX3) of CERCLA.
"(c) EXPENDITURES FROM SUPERFUND.
"(1) IN GENERAL.Amounts in the Superfund shall be avail-
able, as provided in appropriation Acts, only for purposes of
making expenditures
(A) to carry out the purposes of
"(i) paragraphs (1), (2), (5), and (6) of section lll(a) of
CERCLA as in effect on the date of the enactment of
the Superfund Amendments and Reauthorization Act
of 1986,
"(ii) section lll(c) of CERCLA (as so in effect), other
than paragraphs (1) and (2) thereof, and
"(iii) section 11 Km) of CERCLA (as so in effect), or
"(B) hereafter authorized by a law which does not au-
thorize the expenditure out of the Superfund for a general
purpose not covered by subparagraph (A) (as so in effect).
"(2) EXCEPTION FOR CERTAIN TRANSFERS, ETC., OF HAZARDOUS
SUBSTANCES.No amount in the Superfund or derived from the
Superfund shall be available or used for the transfer or dispos-
al of hazardous waste carried out pursuant to a cooperative
agreement between the Administrator of the Environmental
Protection Agency and a State if the following conditions
apply
"(A) the transfer or disposal, if made on December 13,
1985, would not comply with a State or local requirement,
"(B) the transfer is to a facility for which a final permit
under section 3005(a) of the Solid Waste Disposal Act was
issued after January 1, 1983, and before November 1, 1984,
and
"(C) the transfer is from a facility identified as the
McColl Site in Fullerton, California.
"(d) AUTHORITY To BORROW.
"(1) IN GENERAL.There are authorized to be appropriated to
the Superfund, as repayable advances, such sums as may be
necessary to carry out the purposes of the Superfund.
"(2) LIMITATION ON AGGREGATE ADVANCES.The maximum
aggregate amount of repayable advances to the Superfund
which is outstanding at any one time shall not exceed an
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amount equal to the amount which the Secretary estimates
will be equal to the sum of the amounts appropriated to the
Superfund under subsection (bXD during the following 24
months.
"(3) REPAYMENT OF ADVANCES.
"(A) IN GENERAL.Advances made to the Superfund
shall be repaid, and interest on such advances shall be
paid, to the general fund of the Treasury when the Secre-
tary determines that moneys are available for such pur-
poses in the Superfund.
"(B) FINAL REPAYMENT.No advance shall be made to
the Superfund after December 31, 1991, and all advances
to such Fund shall be repaid on or before such date.
"(C) RATE OF INTEREST.Interest on advances made to
the Superfund shall be at a rate determined by the Secre-
tary of the Treasury (as of the close of the calendar month
preceding the month in which the advance is made) to be
equal to the current average market yield on outstanding
marketable obligations of the United States with remain-
ing periods to maturity comparable to the anticipated
period during which the advance will be outstanding and
shall be compounded annually.
"(e) LIABILITY OF UNITED STATES LIMITED TO AMOUNT IN TRUST
FUND.
"(1) GENERAL RULE.Any claim filed against the Superfund
may be paid only out of the Superfund.
"(2) COORDINATION WITH OTHER PROVISIONS.Nothing in
CERCLA or the Superfund Amendments and Reauthorization
Act of 1986 (or in any amendment made by either of such Acts)
shall authorize the payment by the United States Government
of any amount with respect to any such claim out of any
source other than the Superfund.
"(3) ORDER IN WHICH UNPAID CLAIMS ARE TO BE PAID.If at
any time the Superfund has insufficient funds to pay all of the
claims payable out of the Superfund at such time, such claims
shall, to the extent permitted under paragraph (1), be paid in
full in the order in which they were finally determined.'
(b) AUTHORIZATION OF APPROPRIATIONS.There is authorized to
be appropriated, out of any money in the Treasury not otherwise
appropriated, to the Hazardous Substance Superfund for fiscal
year
(1) 1987, $250,000,000,
(2) 1988, $250,000,000,
(3) 1989, $250,000,000,
(4) 1990, $250,000,000, and
(5) 1991, $250,000,000,
plus for each fiscal year an amount equal to so much of the aggre-
gate amount authorized to be appropriated under this subsection
(and paragraph (2) of section 221(b) of the Hazardous Substance Re-
sponse Act of 1980, as in effect before its repeal) as has not been
appropriated before the beginning of the fiscal year involved.
(c) CONFORMING AMENDMENTS.
(1) Subtitle B of the Hazardous Substance Response Revenue
Act of 1980 (relating to establishment of Hazardous Substance
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218
Response Trust Fund), as amended by section 204 of this Act, is
hereby repealed.
(2) Paragraph (11) of section 101 of the Comprehensive Envi-
ronmental Response, Compensation, and Liability Act of 1980
is amended to read as follows:
"(11) The term 'Fund' or Trust Fund' means the Hazardous
Substance Superfund established by section 9507 of the Inter-
nal Revenue Code of 1986."
(d) CLERICAL AMENDMENT.The table of sections for subchapter
A of chapter 98 of such Code is amended by adding after the item
relating to section 9506 the following new item:
"Sec. 9507. Hazardous Substance Superfund."
(e) EFFECTIVE DATE.
(1) IN GENERAL.The amendments made by this section shall
take effect on January 1, 1987.
(2) SUPERFUND TREATED AS CONTINUATION OF OLD TRUST
FUND.The Hazardous Substance Superfund established by the
amendments made by this section shall be treated for all pur-
poses of law as a continuation of the Hazardous Substance Re-
sponse Trust Fund established by section 221 of the Hazardous
Substance Response Revenue Act of 1980. Any reference in any
law to the Hazardous Substance Response Trust Fund estab-
lished by such section 221 shall be deemed to include (wherev-
er appropriate) a reference to the Hazardous Substance Super-
fund established by the amendments made by this section.
PART II-LEAKING UNDERGROUND STORAGE TANK TRUST
FUND AND ITS REVENUE SOURCES
SEC. 521. ADDITIONAL TAXES ON GASOLINE, DIESEL FUEL, SPECIAL
MOTOR FUELS, FUELS USED IN AVIATION, AND FUELS USED
IN COMMERCIAL TRANSPORTATION ON INLAND WATER-
WAYS.
(a) GENERAL RULE.
(1) GASOLINE.
(A) GASOLINE TAX BEFORE AMENDMENT BY TAX REFORM
ACT OF 1988.
(i) IN GENERAL.Section 4081 of the Internal Reve-
nue Code of 1986 (relating to imposition of tax on gaso-
line), as in effect on the day before the date of the en-
actment of the Tax Reform Act of 1986, is amended by
striking out subsections (a) and (b) and inserting in
lieu thereof the following:
"(a) IN GENERAL.There is hereby imposed on gasoline sold by
the producer or importer thereof, or by any producer of gasoline, a
tax at the rate specified in subsection (b).
"(b) RATE OF TAX.
"(1) IN GENERAL.The rate of the tax imposed by this section
is the sum of
"(A) the Highway Trust Fund financing rate, and
"(B) the Leaking Underground Storage Tank Trust Fund
financing rate.
"(2) RATES.For purposes of paragraph (1)
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219
"(A) the Highway Trust Fund financing rate is 9 cents a
gallon, and
"(B) the Leaking Underground Storage Tank Trust Fund
financing rate is 0.1 cents a gallon."
(ii) TERMINATION.Section 4081 of such Code, as so
in effect, is amended by adding at the end thereof the
following new subsection:
'(d) TERMINATION.
"(1) HIGHWAY TRUST FUND FINANCING RATE.On and after
October 1, 1988, the Highway Trust Fund financing rate under
subsection (bX2XA) shall not apply.
"(2) LEAKING UNDERGROUND STORAGE TANK TRUST FUND FI-
NANCING RATE.
"(A) IN GENERAL.The Leaking Underground Storage
Tank Trust Fund financing rate under subsection (bX2XB)
shall not apply after the earlier of
"(i) December 31, 1991, or
"(ii) the last day of the termination month.
"(B) TERMINATION MONTH.For purposes of subpara-
graph (A), the termination month is the 1st month as of
the close of which the Secretary estimates that the net
revenues from the taxes imposed by this section (to the
extent attributable to the Leaking Underground Storage
Tank Trust Fund financing rate under subsection (bX2XB)),
section 404 l(d), and section 4042 (to the extent attributable
to the Leaking Underground Storage Tank Trust Fund fi-
nancing rate under section 4042(b)) are at least
$500,000,000.
"(C) NET REVENUES.For purposes of subparagraph (B),
the term 'net revenues' means the excess of gross revenues
over amounts payable by reason of section 9508(cX2) (relat-
ing to transfer from Leaking Underground Storage Tank
Trust Fund for certain repayments and credits)."
(iii) TECHNICAL AMENDMENTS.Subsection (c) of section
4081 of such Code, as so in effect, is amended
(I) by striking out "subsection (a)" in paragraph
(1) and inserting in lieu thereof "subsection (b)",
and
(II) by striking out "a rate" in paragraph (2) and
inserting in lieu thereof "a Highway Trust Fund
financing rate".
(B) GASOLINE TAX AS AMENDED BY TAX REFORM ACT OF
1986.
(i) IN GENERAL.Subsections (a) and (b) of section
4081 of the Internal Revenue Code of 1986 (relating to
imposition of tax on gasoline), as amended by the Tax
Reform Act of 1986, are each amended by striking out
"of 9 cents a gallon" and inserting in lieu thereof "at
the rate specified in subsection (d)
(ii) INCREASE IN TAX.Section 4081 of such Code, as
amended by the Tax Reform Act of 1986, is amended
by striking out subsection (d) and inserting in lieu
thereof the following new subsections:
"(d) RATE OF TAX.
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220
"(1) IN GENERAL.The rate of the tax imposed by this section
is the sum of
"(A) the Highway Trust Fund financing rate, and
"(B) the Leaking Underground Storage Tank Trust Fund
financing rate.
"(2) RATES.For purposes of paragraph (D
"(A) the Highway Trust Fund financing rate is 9 cents a
gallon, and
"(B) the Leaking Underground Storage Tank Trust Fund
financing rate is 0.1 cents a gallon.
"(e) TERMINATION.
"(1) HIGHWAY TRUST FUND FINANCING RATE.On and after
October 1, 1988, the Highway Trust Fund financing rate under
subsection (dX2XA) shall not apply.
"(2) LEAKING UNDERGROUND STORAGE TANK TRUST FUND FI-
NANCING RATE.
"(A) IN GENERAL.The Leaking Underground Storage
Tank Trust Fund financing rate under subsection (dX2XB)
shall not apply after the earlier of
"(i) December 31, 1991, or
"(ii) the last day of the termination month.
"(B) TERMINATION MONTH.For purposes of subpara-
graph (A), the termination month is the 1st month as of
the close of which the Secretary estimates that the net
revenues from the taxes imposed by this section (to the
extent attributable to the Leaking Underground Storage
Tank Trust Fund financing rate under subsection (dX2XB)),
section 404l(d), and section 4042 (to the extent attributable
to the Leaking Underground Storage Tank Trust Fund fi-
nancing rate under section 4042(b)) are at least
$500,000,000.
"(C) NET REVENUES.For purposes of subparagraph (B),
the term "net revenues" means the excess of gross reve-
nues over amounts payable by reason of section 9508(c)(2)
(relating to transfer from Leaking Underground Storage
Tank Trust Fund for certain repayments and credits)."
(iii) TECHNICAL AMENDMENTS.Subsection (c) of sec-
tion 4081 of such Code, as amended by the Tax Reform
Act of 1986, is amended
(I) by striking out "subsection (a)" in paragraph
(1) and inserting in lieu thereof "subsection (d)",
and
(II) by striking out "a rate" in paragraph (2) and
inserting in lieu thereof "a Highway Trust Fund
financing rate".
(2) DIESEL AND SPECIAL MOTOR FUELS; FUELS USED IN AVIA-
TION.Section 4041 of such Code (relating to tax on special
fuels) is amended by redesignating subsection (d) as subsection
(e) and by inserting after subsection (c) the following new sub-
section:
"(d) ADDITIONAL TAXES To FUND LEAKING UNDERGROUND STOR-
AGE TANK TRUST FUND.
"(1) LIQUIDS OTHER THAN GASOLINE, ETC., USED IN MOTOR VEHI-
CLES, MOTORBOATS, OR TRAINS.In addition to the taxes im-
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221
posed by subsection (a), there is hereby imposed a tax of 0.1
cents a gallon on benzol, benzene, naphtha, casing head and
natural gasoline, or any other liquid (other than kerosene, gas
oil, liquefied petroleum gas, or fuel oil, or any product taxable
under section 4081)
"(A) sold by any person to an owner, lessee, or other op-
erator of a motor vehicle, motorboat, or train for use as a
fuel in such motor vehicle, motorboat, or train, or
"(B) used by any person as a fuel in a motor vehicle, mo-
torboat, or train unless there was a taxable sale of such
liquid under subparagraph (A).
"(2) LIQUIDS USED IN AVIATION.In addition to the taxes im-
posed by subsection (c) and section 4081, there is hereby im-
posed a tax of 0.1 cents a gallon on any liquid
"(A) sold by any person to an owner, lessee, or other op-
erator of an aircraft for use as a fuel in such aircraft, or
"(B) used by any person as a fuel in an aircraft unless
there was a taxable sale of such liquid under subpara-
graph (A).
The tax imposed by this paragraph shall not apply to any prod-
uct taxable under section 4081 which is used as a fuel in an
aircraft other than in noncommercial aviation.
"(3) TERMINATION.The taxes imposed by this subsection
shall not apply during any period during which the Leaking
Underground Storage Tank Trust Fund financing rate under
section 4081 does not apply."
(3) FUEL USED IN COMMERCIAL TRANSPORTATION ON INLAND
WATERWAYS.Subsection (b) of section 4042 of such Code (relat-
ing to amount of tax on fuel used in commercial transportation
on inland waterways) is amended to read as follows:
"(b) AMOUNT OF TAX.
"(1) IN GENERAL.The rate of the tax imposed by subsection
(a) is the sum of
"(A) the Inland Waterways Trust Fund financing rate,
and
"(B) the Leaking Underground Storage Tank Trust Fund
financing rate.
"(2) RATES.For purposes of paragraph (1)
"(A) the Inland Waterways Trust Fund financing rate is
10 cents a gallon, and
"(B) the Leaking Underground Storage Tank Trust Fund
financing rate is 0.1 cents a gallon.
"(3) EXCEPTION FOR FUEL TAXED UNDER SECTION 404 i(d).The
Leaking Underground Storage Tank Trust Fund financing rate
under paragraph (2XB) shall not apply to the use of any fuel if
tax under section 404 l(d) was imposed on the sale of such fuel
or is imposed on such use.
"(4) TERMINATION OF LEAKING UNDERGROUND STORAGE TANK
TRUST FUND FINANCING RATE.The Leaking Underground Stor-
age Tank Trust Fund financing rate under paragraph (2XB)
shall not apply during any period during which the Leaking
Underground Storage Tank Trust Fund financing rate under
section 4081 does not apply."
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222
(b) ADDITIONAL TAXES Nor TRANSFERRED TO HIGHWAY TRUST
FUND, AIRPORT AND AIRWAY TRUST FUND, AND INLAND WATERWAYS
TRUST FUND.
(1) HIGHWAY TRUST FUND.
(A) IN GENERAL.Subsection (b) of section 9503 of such
Code (relating to transfer to Highway Trust Fund of
amounts equivalent to certain taxes) is amended by adding
at the end thereof the following new paragraph:
"(4) CERTAIN ADDITIONAL TAXES NOT TRANSFERRED TO HIGH-
WAY TRUST FUND.For purposes of paragraphs (1) and (2),
there shall not be taken into account the taxes imposed by sec-
tion 4041(d) and so much of the taxes imposed by section 4081
as is attributable to the Leaking Underground Storage Tank
Trust Fund financing rate."
(B) CONFORMING AMENDMENT.Subparagraph (D) of sec-
tion 9503(cX4) of such Code (defining motorboat fuel taxes)
is amended by striking out "section 4081" and inserting in
lieu thereof "section 4061 (to the extent attributable to the
Highway Trust Fund financing rate)".
(2) AIRPORT AND AIRWAY TRUST FUND.Subsection (b) of sec-
tion 9502 of such Code (relating to transfer to Airport and
Airway Trust Fund of amounts equivalent to certain taxes) is
amended
(A) by striking out "subsections (c) and (d) of section
4041" in paragraph (1) and inserting in lieu thereof "sub-
sections (c) and (e) of section 4041", and
(B) by striking out "section 4081" in paragraph (2) and
inserting in lieu thereof "section 4081 (to the extent attrib-
utable to the Highway Trust Fund financing rate)".
(3) INLAND WATERWAYS TRUST FUND.Paragraph (1) of sec-
tion 9506(b) of such Code is amended by adding at the end
thereof the following new sentence: "The preceding sentence
shall apply only to so much of such taxes as are attributable to
the Inland Waterways Trust Fund financing rate under section
4042(b)."
(c) REPAYMENTS FOR GASOLINE USED ON FARMS, ETC.
(1) GASOLINE USED ON FARMS.Subsection (h) of section 6420
of such Code (relating to termination) is amended by striking
out "This section" and inserting in lieu thereof "Except with
respect to taxes imposed by section 4081 at the Leaking Under-
ground Storage Tank Trust Fund financing rate, this section".
(2) GASOLINE USED FOR CERTAIN NONHIGHWAY PURPOSES OR BY
LOCAL TRANSIT SYSTEMS.
(A) TERMINATION NOT TO APPLY TO ADDITIONAL o.i CENT
TAX.Subsection (h) of section 6421 of such Code (relating
to effective date), as in effect on the day before the date of
the enactment of the Tax Reform Act of 1986, is amended
by striking out "This section" and inserting in lieu thereof
"Except with respect to taxes imposed by section 4081 at
the Leaking Underground Storage Tank Trust Fund fi-
nancing rate, this section".
(B) REPAYMENT OF ADDITIONAL TAX FOR OFF-HIGHWAY
BUSINESS USE TO APPLY ONLY TO CERTAIN VESSELS.SubseC-
tion (e) of section 6421 of such Code, as so in effect, is
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223
amended by adding at the end thereof the following new
paragraph:
"(4) SECTION NOT TO APPLY TO CERTAIN OFF-HIGHWAY BUSINESS
USES WITH RESPECT TO THE TAX IMPOSED BY SECTION 4081 AT THE
LEAKING UNDERGROUND STORAGE TANK TRUST FUND FINANCING
RATE.This section shall not apply with respect to the tax im-
posed by section 4081 at the Leaking Underground Storage
Tank Trust Fund financing rate on gasoline used in any off-
highway business use other than use in a vessel employed in
the fisheries or in the whaling business."
(3) FUELS USED FOR NONTAXABLE PURPOSES.
(A) Subsection (m) of section 6427 of such Code (relating
to termination), as in effect on the day before the date of
the enactment of the Tax Reform Act of 1986, is amended
by striking out "Subsections" and inserting in lieu thereof
"Except with respect to taxes imposed by section 404 l(d)
and section 4081 at the Leaking Underground Storage
Tank Trust Fund financing rate, subsections".
(BXi) Section 6427 of such Code, as so in effect, is amend-
ed by redesignating subsection (n) as subsection (o) and by
inserting after subsection (m) the following new subsection:
"(n) PAYMENTS FOR TAXES IMPOSED BY SECTION 4041(d).For pur-
poses of subsections (a), (b), and (c), the taxes imposed by section
404l(d) shall be treated as imposed by section 4041(a)."
(ii) Subparagraph (A) of section 1703(eXD of the Tax
Reform Act of 1986 is amended
(I) by striking out "and (o)" and inserting in lieu
thereof "(o), and (p)", and
(II) by striking out "and (n)" and inserting in lieu
thereof "(n), and (o)".
(C) Paragraph (1) of section 6427(f) of such Code (relating
to gasoline used to produce certain alcohol fuels) is amend-
ed by striking out at the rate" and inserting in lieu there-
of "at the Highway Trust Fund financing rate".
(d) CONTINUATION OP CERTAIN EXEMPTIONS FROM ADDITIONAL
TAXES, ETC.
(1) Subsection (b) of section 4041 of such Code (relating to ex-
emption for off-highway business use; reduction in tax for
qualified methanol and ethanol fuel) is amended by adding at
end thereof the following new paragraph:
'(3) COORDINATION WITH TAXES IMPOSED BY SUBSECTION (d).
"(A) OFF-HIGHWAY BUSINESS USE.
"(i) IN GENERAL.Except as provided in clause (ii),
rules similar to the rules of paragraph (1) shall apply
with respect to the taxes imposed by subsection (d).
"(ii) LIMITATION ON EXEMPTION FOR OFF-HIGHWAY
BUSINESS USE.For purposes of subparagraph (A),
paragraph (1) shall apply only with respect to off-high-
way business use in a vessel employed in the fisheries
or in the whaling business.
"(B) QUALIFIED METHANOL AND ETHANOL FUEL.In the
case of qualified methanol or ethanol fuel, subsection (d)
shall be applied by substituting '0.05 cents' for '0.1 cents'
in paragraph (1) thereof."
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224
(2) Paragraph (3) of section 404 l(f) of such Code (relating to
exemption for farm use) is amended by striking out "On and
after' and inserting in lieu thereof "Except with respect to the
taxes imposed by subsection (d), on and after".
(3) The last sentence of section 404 l(g) of such Code (relating
to other exemptions) is amended by striking out "Paragraphs"
and inserting in lieu thereof "Except with respect to the taxes
imposed by subsection (d), paragraphs".
(4XA) The last sentence of section 4221(a) of such Code (relat-
ing to certain tax-free sales) is amended by striking out "4081"
and inserting in lieu thereof "4081 (at the Highway Trust
Fund financing rate)".
(B) Subparagraph (C) of section 1703(cX2) of the Tax Reform
Act of 1986 is amended to read as follows:
"(C) Subsection (a) of section 4221 (relating to certain
tax-free sales) is amended
"(i) by inserting 'or section 4081 (at the Highway
Trust Fund financing rate)' before 'section 4121' in the
1st sentence, and
"(ii) by striking out '4071, or 4081 (at the Highway
Trust Fund financing rate)' in the last sentence and
inserting in lieu thereof 'or 4071'."
(5) Paragraph (2) of section 6416(b) of such Code is amended
by inserting "or under paragraph (1XA) or (2XA) of section
4041(d)" after "section 4041(aT.
(e) EFFECTIVE DATE.The amendments made by this section shall
take effect on January 1, 1987.
SEC. 522. LEAKING UNDERGROUND STORAGE TANK TRUST FUND.
(a) IN GENERAL.Subchapter A of chapter 98 of the Internal Rev-
enue Code of 1986 (relating to establishment of trust funds) is
amended by adding after section 9507 the following new section:
"SEC. 9508. LEAKING UNDERGROUND STORAGE TANK TRUST FUND.
"(a) CREATION OF TRUST FUND.There is established in the
Treasury of the United States a trust fund to be known as the
'Leaking Underground Storage Tank Trust Fund', consisting of
such amounts as may be appropriated or credited to such Trust
Fund as provided in this section or section 9602(b).
"(b) TRANSFERS TO TRUST FUND.There are hereby appropriated
to the Leaking Underground Storage Tank Trust Fund amounts
equivalent to
"(1) taxes received in the Treasury under section 4041(d) (re-
lating to additional taxes on motor fuels),
"(2) taxes received in the Treasury under section 4081 (relat-
ing to tax on gasoline) to the extent attributable to the Leak-
ing Underground Storage Tank Trust Fund financing rate
under such section,
"(3) taxes received in the Treasury under section 4042 (relat-
ing to tax on fuel used in commercial transportation on inland
waterways) to the extent attributable to the Leaking Under-
ground Storage Tank Trust Fund financing rate under such
section, and
"(4) amounts received in "the Treasury and collected under
section 9003(hX6) of the Solid Waste Disposal Act.
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225
"(c) EXPENDITURES.
"(1) IN GENERAL.Except as provided in paragraph (2),
amounts in the Leaking Underground Storage Tank Trust
Fund shall be available, as provided in appropriation Acts,
only for purposes of making expenditures to carry out section
9003(h) of the Solid Waste Disposal Act as in effect on the date
of the enactment of the Superfund Amendments and Reauthor-
ization Act of 1986.
"(2) TRANSFERS FROM TRUST FUND FOR CERTAIN REPAYMENTS
AND CREDITS.
"(A) IN GENERAL.The Secretary shall pay from time to
time from the Leaking Underground Storage Tank Trust
Fund into the general fund of the Treasury amounts equiv-
alent to
"(i) amounts paid under
"(I) section 6420 (relating to amounts paid in re-
spect of gasoline used on farms),
"(II) section 6421 (relating to amounts paid in
respect of gasoline used for certain npnhighway
purposes or by local transit systems), and
"(HI) section 6427 (relating to fuels not used for
taxable purposes), and
"(ii) credits allowed under section 34, with respect to
the taxes imposed by sections 4041(d) and 4081 (to the
extent attributable to the Leaking Underground Stor-
age Tank Trust Fund financing rate under section
4081).
"(B) TRANSFERS BASED ON ESTIMATES.Transfers under
subparagraph (A) shall be made on the basis of estimates
by the Secretary, and proper adjustments shall be made in
amounts subsequently transferred to the extent prior esti-
mates were in excess of or less than the amounts required
to be transferred.
"(d) LIABILITY OF THE UNITED STATES LIMITED TO AMOUNT IN
TRUST FUND.
"(1) GENERAL RULE.Any claim filed against the Leaking
Underground Storage Tank Trust Fund may be paid only out
of such Trust Fund.
"(2) COORDINATION WITH OTHER PROVISIONS.Nothing in the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 or the Superfund Amendments and Reau-
thorization Act of 1986 (or in any amendment made by either
of such Acts) shall authorize the payment by the United States
Government of any amount with respect to any such claim out
of any source other than the Leaking Underground Storage
Tank Trust Fund.
"(3) ORDER IN WHICH UNPAID CLAIMS ARE TO BE PAID.If at
any time the Leaking Underground Storage Tank Trust Fund
has insufficient funds to pay all of the claims out of such Trust
Fund at such time, such claims shall, to the extent permitted
under paragraph (1), be paid in full in the order in which they
were finally determined.
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226
(b) CLERICAL AMENDMENT.The table of sections f6:r subchapter
A of chapter 98 of such Code is amended by adding after the item
relating to section 9507 the following new item:
"Sec. 9508. Leaking Underground Storage Tank Trust Fund."
(c) EFFECTIVE DATE.The amendments made by this section shall
take effect on January 1, 1987."
O
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Appendix G
Guidance and Policy Memoranda
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APPENDIX G
GUIDANCE AND POLICY MEMORANDA
MEMORANDUM PAGE
Releasing Identities of Potentially Responsible G-l
Parties in Response to FOIA Requests.
Gene A. Lucero and Kirk F. Sniff.
January 26, 1984.
Participation of Potentially Responsible Parties G-5
in Development of Remedial Investigations and
Feasibility Studies under CERCLA.
Lee M. Thomas. March 20, 1984.
Liability of Corporate Shareholders and G-l5
Successor Corporations for Abandoned Sites
Under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA).
Courtney M. Price. June 13, 1984.
Policy on Enforcing Information Requests G-31
in Hazardous Waste Cases.
Courtney M. Price. September 10, 1984.
Procedures for Issuing Notice Letters. G-4 1
Gene A. Lucero. October 12, 1984.
Interim CERCLA Settlement Policy. G-55
Lee M. Thomas, Courtney M. Price, and
F. Henry Habicht, II. December 5, 1984.
Hazardous Waste Enforcement Policy. G-75
Environmental Protection Agency.
February 5, 1985.
PRP Participation in RI/FS. G-87
Gene A. Lucero. March 27, 1985.
Timely Initiation of Responsible Party Searches, G-89
Issuance of Notice Letters, and Release of Information.
Gene A. Lucero. October 9, 1985.
Policy for Enforcement Actions Against G-93
Transporters under CERCLA.
Gene A. Lucero and Frederick F. Stiehl.
December 23, 1985.
G-l
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MEMORANDUM PAGE
Potentially Responsible Party Searches. G-97
Gene A. Lucero and Thomas P. Gallagher.
March 27, 1986.
Interim Guidance: Streamlining the CERCLA G-99
Settlement Decision Process.
J. Winston Porter.
February 12, 1987.
NOTE: Two additional references which may provide guidance, but are not included
here are:
o Freedom of Information Act (FOIA)
o RCRA Confidential Business Information Security Manual, Draft,
March 1984
G-2
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
JAN 26 1984
MEMORANDUM
SUBJECT:
FROM
Releasing Identities of Potentially Responsible
Parties in Response to POIA Requests
Gene A. Lucero, Director (S?fy\fJL H<
Office of Waste Programs Enforcement
Waste
nce Monitoring
Kirk P. Sniff
Associate Enforcement Counsel
Office of Enforcement and Compl
TO:
Directors, Waste Management Division, Regions I, V
Director, Office of Emergency & Remedial Response, Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air & Waste Management Division,
Regions IV, VI, VII, VIII
Director, Toxics & Waste Management Division, Region IX
Director, Air & Waste Division, Region X
Regional Counsels - Regions I - X
PURPOSE
This memorandum states the policy of EPA for responding to
requests under the Freedom of Information Act (FOIA) for the
names of potentially responsible parties (PRPs) at CERCLA sites.
II. BACKGROUND
On March 30, 1983, EPA issued guidance on releasing the
identities of potentially responsible parties under CERCLA.
This guidance provtdetJ f-or ea-setoy-case review and discretionary
disclosure of the identities of PRPs in certain limited circum-
stances. In. general, before the March 30 guidance, EPA did not
release th« names of PRPs in response to FOIA requests.
On June 28, 1983, the Federal District Court for the
District of Columbia decided in Cohen v. EPA that EPA had not
met its burden of establishing that disclosing the identities
of PRPs would harm the Agency's enforcement efforts. The case
involved EPA1s decision to withhold the identities of potentially
responsible parties as provided by FOIA exemptions under 5
U.S.C. SS552(b)7(A)f 7(C), and 5.
The court granted the plaintiff's motion for summary
judgment on finding that:
G-l
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-2-
1. For Bx*mption 7(A) notice letters are investigatory
records compiled for law enforcement purposes, but EPA did not
establish if disclosure of the notice letters would harm the
investigation.!
2. For Exemption 7(C) the identities of the PRPs
who received notice letters does not fall into the category of
a protected privacy interest; and
3 . For Exemption 5 -- notice letters are not predecisional
documents.
III. POLICY
As a result of the Cohen decision and the Administrator's
policy of conducting business in a more open atmosphere, and
in light of the resource demands involved in case-by-case
review of the names of notice letter recipients, the March 30,
1983, guidance has been reevaluated. The new guidance is set
forth below.
1. In response to a FOIA request, EPA will release the
names of PRPs who have received notice letters about a CERCLA sit«.
2. An exception to the policy of disclosing the names of
PRPs who received notice letters may be made only when EPA
determines that disclosure of a particular name will cause such
interference with an ongoing enforcement proceeding that
discretionary disclosure is clearly unwarranted. If EPA decides
to withhold the name of a PRP who received a notice letter, EPA
must support the conclusion that disclosure will cause substantial
harm to the law enforcement proceeding in writing with concurrence
by the Regional Counsel. The written documentation may not
consist of general statements; it must include the particular
facts relating to the specific PRP and site that led to the
conclusion to withhold.
3 . The names of parties who have not yet received notice
letters may be predecisional and therefore exempt.from disclosure
under Exemption 5 of the FOIA. These names also may be exempt as
investigatory records under Exemption 7(A). However, in its
discretion EPA »ay release this material.
4. Although EPA usually will release the names of PRPs
only in response to FOIA requests, the Agency may elect to
release the information on its own initiative in appropriate
circumstances.
5. Disclosure of the names of PRPs and the names of sites
does not constitute a waiver of EPA's right to withhold other
information developed for an enforcement action that EPA determines
is exempt from disclosure. Even if information is exempt from
disclosure under Exemption 2, 5, or 7 of FOIA, EPA has discretion
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to release the information; however, EPA may exercise its discretion
to release the information only after the appropriate Regional Counsel
reviews the information to ensure that disclosure will not interfere
with an enforcement action.
IV. PROCEDURES TO IMPLEMENT POLICY
EPA Headquarters or a Regional Office should follow the
procedure below to respond to a FOIA request for the names of
PRPs or other information about a CERCLA site.
1. Quality assure the list of PRPs regularly and particularly
before sending notice letters to PRPs for a site. Perform an
in depth quality assurance of PRP lists every 6 months. Headquarters
will hold Regional Offices accountable for inadequate quality
assurance of PRP information.
2. Immediately notify Headquarters whenever a Regional
Office decides, in accordance with the guidance in Item III.2
above, that disclosing the name of a PRP will cause substantial
harm to an enforcement effort. Regional Offices also should
notify Headquarters if withholding a name is no longer required.
3. If additional information is requested about a PRP or
a site, consult with the Regional Counsel for a decision on
whether disclosure will interfere with enforcement at the site.
4. Submit the list of names, or names and information, to
the requester with a brief explanation of how EPA defines PRP
for purposes of sending notice letters.
5. Include with the list of names the following disclaimer:
This list represents EPA's preliminary findings on
the identities of potentially responsible parties.
EPA makes no assertions that parties on this list
are liable for any- hazard or contamination at any
CERCLA site.
6. OM the term "potentially responsible party" in
responses to FOIA requests if none of the parties named in a
notice letter has been found liable by a court.
V. FIRST RESPONSE TO FOIA REQUESTS
Ten working days after the date of this policy, Headquarters
will respond to the current backlog of requests for all PRP names
with the quality assured list.
Any Regional Office that intends to withhold any PRP names,
as provided by Item III.2 above, must have completed the required
documentation and notified Headquarters before the FOIA response
date. If you have any questions about this policy, contact
Susan Gary Watkins (FTS 382-2032).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 20
MEMORANDUM
SUBJECT: Participation of Potentially Responsible Partie^ in
^-Uevelopment of Remedial Investigations and Feasioility
f Stud ie?xu rider CERCLA
4 - " \ \\
>%A>_^ V^- \\>-_cx^x^i-m
FROM: ~ Lee M. Thomas, Assistant Administrator
Office of Solid^/aste and Emergency Response
I t^T O~\ ~~1JL^-
5e«Ttney\. Price, Assistant Administrator
Office of Enforcement and Compliance Monitoring
TO: Regional Administrators, Regions l-X
I. Introduction
This memorandum sets forth the policy and procedures
governing participation of potentially responsiole parties (PR?s)
in development of remedial investigations (RI) and feasibility
studies (F3) under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA). 1 It discusses:
o the circumstances in which RI/FS may be conducted by potentially
responsible parties,
o the procedures for notifying potentially responsible parties
when the Agency has identified target sites for the development
of RI/FS, and
o the principles governing PRP participation in Agency-financed
RI/FS.
1.The Agencyis currently developing a comprehensivepolicy
concerning EPA participation in state-lead enforcement under
CERCLA. The applicability of the RI/FS policy to state-lead
enforcement actions will be fully discussed in this forthcoming
memorandum.
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11. previous Approaches to PRP Participation in RI/FS
Under _earl ier policy, the Agency negotiated
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Finally, multiple negotiations concerning each phase of site
response inefficiently used limited Agency and Department of
Justice resources and personnel.
In response to these concerns, the Agency estaolished a
policy that precluded potentially responsible parties from conduct:;
the RI/F3, unless they were also willing to commit to conducting
the remedial action.
The Agency has also identified drawoaoks to this approach.
Some potentially responsible parties have wanted an opportunity
to prepare an RI/FS or participate in its development. They have
been reluctant to accept tne conclusions in the RI/F3 and to
assume responsibility tor conducting cleanup, because their views
were not reflected in the Aqency-financed RI/FS. This policy
also increased demanas on tne Fun.l, and ran contrary to the
Agency's preference for timely and effective private-party response
In light of these drawbacks, the Agency has established a
new policy concerning the conduct of KI/FS by ppps. The Agency
will give potentially responsible parties an opportunity to
conduct the RI/FS, consistent with Agency priorities and vith
new Agency procedures and guidance. The new approach will netter
enable the Agency to target its enforcement priorities, reduce
tne possibility of unsuccessful or protracted negotiations wit'i
PRPs, and enhance the quality of private-party RI/FS.
III. Situations where private parties may conduct RI/FS
Tho Agency will identify sites targeted for RI/FS devo lo,:n-nc ,
and give potentially responsiole parties an opportunity to conduce
tne RI/FS. The Remedial Accomplishments Plan (RAP) developed by
the Agency identifies candidate sites for enforcement or Fund-: ina-.c
response, and allocates the resources necessary to undertake
these activities. The Remedial Accompl isnraents Plan lists all
sites for which RI/FS will be developed.
Approximately 95 sites from the National Priorities List
have bo-en identified as targets for development of RI/FS in FY
1384, and about 115 will be identified for FY 1985. The Agency
has allocated CERCLA funds for RI/FS for each of these sites.
C?A will make availaole a list of the sites on the Remedial
Accomplishments Plan, and the scheduled daces tor ooligation of
funds for RI/FS development by the Agency at these sites.
Potentially responsible parties will have an opportunity to
conduct the RI/FS for these sites, provided that they respond
before the scheduled date tor obligation of funds.
The Agency will not engage in lengthy negotiations with PRPs
over whether PRPs will conduct the RI/FS. In setting a reasonable
negotiating period, the Agency will consider factors specific to
the site, such as tecnnicai complexity and the number of parties
involved. Once funds for an Agency-financed RI/FS have been
obligated, PRPs will not be allowed to take over development of
the RI/FS.
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If potentially responsible parties are willing to perform tii
RI/FS, the. Agency will identify the conditions under which they
may do so. To assure that privately-funded RI/FS ara done quickly
and in a manner that meets the applicable requirements of this
policy, potentially responsible parties will oe expected to meet
the following conditions:
1. Where several parties are involved at a site, they
must be able to quickly organize themselves into a
representative body to deal with tne Agency as a single
entity. To facilitate tais process, the Agency will
make the names of potentially reaponsiole oirties
available on request. (See guidance trcm Gene A. Lucero
and Kirk Sniff on Release of Names of Potentially
Responsible Parties in Response to r'QIA Requests published
January 26, 1934). A single PRP, or an organized group
of PRPs, may assume responsini1ity for actual development
of tne RI /:-' S .
2. PRPs must agree to follow the scope of work for the
Rl/rS developed by the Agency. Th^- Agency will no t
engage in iengtny negotiations over this n.^ue.
3. PRPs must demonstrate to the Agency that they are aole
to follow the technical procedures described i. n Rerr.ed ial
Investigat ion and Feasibility Study juiJance minaais
currently unuer deve lopmenc . - ""
If these conditions are met, the Agenc/ -'ill devote the
resources necessary to assure the satiscvc" iry >:-.
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If, in the Agency's judgment, the potentially rospons ID i e
parties da not meet these criteria (fiat is, they are ijc aole
co prope~rTy conduct tne RI/FS)/ tne Agency will ,ijc commit resources
to review the private-party RI/FS. Instead, the Agenc/ will
perform the work itself and seek to recover the costs jc the
PI/FS. PRPs will be given the ooportanity to Discuss implementation
of the selected remedy at a Later date.
The Agency normally allocates the equivalent of aoout l.i
work-years for start-up, management, and selection ;> t r'.-,re
of CERCLA. Development of or iva to-party RI/FS will he s^oj^-ji
co o?A community relations requirements. *
The Agency believes that this approach will ennance tne
prospects for private-party implementation of the remedy and
also provide a mechanism to clean up additional sites in fie
fjcur?. As potentially responsible parties become no re tamil.ar
with conducting RI/FS under the Remed lal Invest igat ion anJ
Feasibility Study guidances, and Ajoncy pe r sonny i TTv^lop mor;
experience in overseeing and evaluating them, -ve anticipate -.nat
it will take less than a full Agency workyear to assure the
completion of a technically sound RI/FS. As a result }f f ; i s
experience, EPA will be able to oversee additional pr i va te I ;, - f i n anceo
RI'FSs with a jiven level of resources and, consequent!/, initiate-
tne response process by private parties at more \'PL sites.
I '/ . Ape 1 icac 1 1 1 ty of Policy
Tnis policy is prospective. PRPs will be allowed to con.iuct
xI/'FS for targeted sites on the oasis of these criteria wh^n tne
Remed la I Invest igat ion and Feas ib 1 1 1 ty s t ud y technical manuals
and an/ other necessary tecnnical nanuaTs a~re final. We anticipate
that these documents will oe completed in the summer of 1934.
This polfcy will also be applicable to sites where States
have the lead in managing preparation of the RI/FS. Where possible,
States should be involved in the determination of whether PRPs
can properly conduct the RI/FS, and in review of the workplan.
States may also assume some responsibility for oversight of PRP
conduct of the RI/FS.
4. Requirements are set fortn in Community Relations in Super runri;
Handbook (interim Version,) Sepce.mcer 1983.
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resources
oeen so
are free to
not been
to
This policy is applicable to sites that the Agency has
identified as targets for RI/FS development in the Remedial
Accomplishments plan. The Agency will not provide
oversee and evaluate RI/FS for sites that have not
designated. While potentially responsible parties
conduct their own RI/FS for other sites which nave
listed as priorities, the Agency does not nave sufficient resources
to provide assistance or review the RI/FS during their development.
This exclusion is designed to allow the Agency to manage
its resources and assure that they are directed towards sites
that represent the Agency's priorities. Thus, tne Agency cannot
review private-party RI/FS for non-targeted sitzas to provide
assurances that the remedy selected by potentially respc-.nsi.ole
parties will be adequate to meet the requirements of CERCLA.
V. Interim Policy and other situations for private-party RI, FS
Until the RI and FS guidance documents are made final,
potentially responsible parties may aiso develop RI/FS if tnev
commit to follow workplans for RI/FS that have been prepared oy
the Agency contractors uncer the supervision of the Agency. The
Agency will not negotiate the content of these wo r-;p lar.s .
Implementation of this interim policy is it trie discretion
the Regions. Regions may allow ?R?s to conduct RI/FS under
workplans developed by Agency contractors if trie RI/FS can "^
conducted without undue disruption to schedules for remediaj. r?s:
in light of existing commitments Ljr activities to ne _;- Je r ta < .-n
un^er the Fund. Regions should complete any negotiations concer-
this interim policy before the Las', month of tne fiscal year, to
assure tnat these negotiations will not interfere vit.h use of
Funa resources. Where the State is managing the development 3f
the RI/FS, this interim policy may be applied at tne discretion
of the State.
i
The Agency will sanction private-party RI/FS f jr Sites
are not identified on the Remedial Accomp 1 isnmen 1 3 Plan in
; ther situat ions .
cnat
First, private parties may perform the RI/FS if tney also
agree to design and implement the remecy selected by tne Agency
for the site. The Agency will allow private party ;evelopment
of the RI/FS because the resources that would have been dedicatjj
to negotiations with potentially responsible parties for the
remedial design and construction can instead be used to oversee
and review the privately-conducted RI/FS. Thus, PRPs may conduct
tne RI/FS for any NPL site (even if the site is not listed in
the Remedial Accomplishments Plan) if they commit to the complete
clean up as well.
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Second, the Agency will allow a private party RI/FS for
dioxin sites that are active facilities, where the scope of t >e
remedial investigation has been ocmprehens i ve Ly definei ':/ the
Federal government. The explicit requirements developed oy trie
Federal government coupled with the public interest co move
quickly on recently discovered dioxin siteswarrant this approach.
VI . Arrangements for Motice to PRP3
PRPs will be notified of the opportunity to perforn the
RI/FS in the following way:
First, the list of sites targetted for RI/FS development
and a schedule for action at those sites will be made availao
It -/ill be accompanied by a statement that the Agency plans to
conduct RI/FS for the sites. Any potentially rosponsiole parcy
tnat vants
and contaci
funds cor
:I/FS for the sites. Any potentially rosponsiole pare
s to undertake the RI/FS can voluntarily come forwarJ
ct the Agency, before the scneduled date to ooligate
RI/FS development.
Second, prior to the scheduled start ot the RI/FS, the
Agency will send notice letters to PRPs for sites listed on the
Remedial Action Plan. Notice letters should be issued as soon
as possible after the completion of the responsible parcy search.
The Letters should normally be issued at least 60 days oefcre
the scheduled date for ooligation of Funds for tne RI/FS~! ?~R?s
(if multiple generators are involved) snoulJ therefore nave
sufficient time to organize themselves ana initiate preliminary
contacts and discussions with Agency personnel. This will also
ivOiu delay in beginning i Fun 1-t inanced .-
parties that:
1. Fund-f inanced PI/FS actions aro planned;
2. The results of the studies wi.ll oe js^d to selBCt
a remedy for the site;
3. PRPs can meet with Agency personnel to discuss tneir
participation in tne RI/FS;
4. PRPs may be liable for the costs of the RI/FS perrorm-.M
by -the government;
5. ?RPs will have an opportunity to meet with Agency
personnel to discuss design and implementation of the
remedy after completion of the RI/FS.
6. PRPs may conduct RI/FS if they comply with the conditions
outlined in section III of this policy.
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The Agency will develop revised Notice Letter guidance in
the near future that will provide additional detail on these
requirements.
VII. Regional Role In RI/FS Development by PRPs
Regional review of private-party RI/FS will oe intensive
when this policy is first implemented. Implementation will
require the ongoing involvement of the EPA project officer in
tne private-party RI/FS development. The PRPs must develop a
detailed statement of work and work plans describing the \ctivit i =
they will undertake at the site, based on the guidance ^nd the
scope of work developed by the Agency. Tho Regions must arrange
to periodically review the work plans and work performed as par".
of the RI/FS. The Regions must assure that PRPs follow proper
chain of custody procedures in testing and sampling, and that
PRPs keep adequate records to enable the government to use t:\ose
records as evidence in an enforcement case. In addition, empLov-;^
of contractors or others who do the work must cooperate wtta unu
be maae available to the government in tne prepar.it i TO -and trial
of any subsequent enforcement case.
The Agency will review the completed work product -»-id jnoose
a remedial alternative that meets all applicable r-s ju i cement s of
CERCLA, and all implementing regulations, policies in! juii.ince.
In addition, the Agency retains the rignt to reject PRP HI/FS
and sue PRPs for cost of developing its own Fund-f inanced RI/FS,
if tne RI/FS is inadequate. As no too earlier, ti;u ig reemen t to
conduct a private-party RI/FS should oe incorporated into an
administrative order or consent decree. Section 107 oc CKRCLA
nut nor i^as the imposition of treble damages for failure to comply
witn an Administrative order. The Agency will develop 2 model
orcer providing additional detail regarding EPA involvement in
private party RI/FS development.
VIII. Private-party Participation in Agency-Financeo RI/FS
'Where potentially rssponsible parties do not actually develop
trvj RI/FS, the Agency will allow private-party involvement in
Fund-financed RI/FS, if such participation can occur without
undue delay, expense, or interference with Agency RI/FS development
Private parties may possess technical expertise or knowledge
ajout a site which would be useful in developing a sound RI/FS.
Involvement by PRPs in the development of a Fund-financed RI/FS
may also expedit? site cleanup by identifying and satisfactorily
resolving differences between the Agency and private parties
that might otherwise be the subject of litigation.
i
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Potentialiy responsible parties -nay be allowed to:
1. Review the contractor's technical wor'< plan;
2. Have access to the site (it legally feasible) to ooserve
well installation and the collection of samples, and to
split savnples where appropriate;
3. Have access to-raw data and to draft reports;
4. Have the option to comment on each major phase of tne RI/F
during the conduct of the investigation.
The final decision whether to permit potentially responsible
parties to participate in the Fund-financed Ri/FS (as well as
the scope of any participation) rests with the Regions. This
iecision should be based on the ability of ?R?s to organic?
themselves so that they can participate as a single entity,
and the ability of PRPs to participate without undue interf3rer.ee
with or delay in completion of tne RI/FS, and other factors
that the Regions determine are relevant. The Region ma / tsrninate
PR? participation in RI/FS development if unnecessary expenses
or delays occur.
Certain aspects of this policy are not applicable :mnediately,
and supplementary guidance will be published. If you hiv- ary
questions or comments concerning tnis policy, or ptroolens t.iac
need to be addressed in further guidance to implement this :)!.;/,
please contact Gene A. Lucero (332-4314), or Joan Cros'3 in -.. s
start ( FTS 332-4829) .
cc: Regional Counsel
Regions I-X
Directors, Waste Management Division
Reg ion I, V
Director, Office of Emergency and Remedial Response
Region II
Director, Hazardous Waste Management Division
Region [II
Directors, Air and Waste Management Division
Regions IV, VI, VII, VIII, X
Director, Toxics and Waste Management Division
Region IX
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USB
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. DC. 20460
JUN 13 1984
OJflDENTIAL
COMPUAN-;
MEMORANDUM
SUBJECT:
Liability of Corporate Shareholders and Successor
Corporations For Abandoned Sites Under the Compre-
hensive Environmental Response, Compensation, and
Liability Act (CERCLA) /
FROM:
TO:
Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
Assistant Administrator for _
Solid Waste and Emergency Response
Associate Enforcement Counsel for Waste
Regional Administrators
Regional Counsels
Introduction
The following enforcement memorandum, which was prepared
in cooperation with the Office of General Counsel, identifies
legal principles bearing on the extent to which corporate
shareholders and successor corporations may be held liable
for response costs that arise as a result of a release of a
hazardous substance from an abandoned hazardous waste facility.
In the discussion section pertaining to each part, the memorandum
reviews the law on the subject from established traditional
jurisprudence to current evolving standards. Although general
rules of liability are delineated, these principles must be
carefully applied to the unique fact pattern of any given
case.
I. THE LIABILITY OF CORPORATE SHAREHOLDERS UNDER CERCLA
Background
Normally, it is the corporate entity that will be held
accountable for cleanup costs under CERCLA. In certain
G-15
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instances, however, EPA may want to extend liability to include
corporate shareholders. This may arise, for example, where a
corporation, which had owned or operated a waste disposal site
at the time of the contamination, is no longer in business.
Trie situation may also occur if a corporation is still in
existence, but does not have sufficient assets to reimburse
the fund for cleanup costs. There are two additional policy
reasons for extending liability to corporate shareholders.
First, this type of action would promote corporate responsibil-
ity for those shareholders who in fact control the corporate
decisicn-making process; it would also deter other shareholders
in similar situations from acting irresponsibly. Second, the
establishment of shareholder liability would aid the negotiation
process and motivate responsible parties toward settlement.
Traditional corporation law favors preserving the corporate
entity, thereby insulating shareholders from corporate liability
Nevertheless, as will be discussed below, there are exceptions
to this general principle that would allow a court to disregard
corporate form and impose liability under CERCLA on individual
shareholders.
Issue
What is the extent of liability for a corporate share-
holder under CERCLA for response costs that arise as a result
of a release of a hazardous substance from an abandoned hazardous
waste facility?
Summary
The question of whether EPA can hold a shareholder of a
corporation liable under CERCLA is a decision that must turn
on the unique facts specific to given situation. Generally,
however, in the interests of public convenience, fairness, and
equity, EPA may disregard the corporate entity when the shareholder
controlled or directed the activities of a corporate hazardous
waste generator, transporter, or facility.
Discussion
Section 107(a)(2) of CERCLA provides that any owner or
operator of a facility which releases a hazardous substance
shall be liable for all necessary response costs resulting
from such a release. Section 101(20)(A)(iii) of CERCLA clearly
states that the term "owner or operator" as applied to abandoned
facilities includes "any person who owned, operated, or otherwise
G-16
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controlled activities at such facility immediately prior to
such abandonment" (emphasis added).
In addition, Sections 107(a)(3) and 107(a)(4) of CERCLA
impose liability for response costs on any person who arranged
for the disposal or treatment of a hazardous substance (the
generator), as well as any person who accepted a hazardous
Substance for transport to the disposal or treatment facility
(the transporter).
The term "person" is defined in CERCLA Section 101(21)
as, inter alia, an individual, firm, corporation, association,
partnership, or commercial entity. A shareholder may exist
as any of the forms mentioned in Section 101(21). Therefore, a
shareholder may be considered a person under CERCLA and, conse-
quently, held liable for response costs incurred as a result
of a release of a hazardous substance from a CERCLA facility
if the shareholder:
3 Owned, operated, or otherwise controlled activities
at such facility immediately prior to abandonment
[CERCLA Section 107(a)(2); Section 101(20)(A)(iii)] ;
0 Arranged for the disposal or treatment (or
arranged with a transporter for the disposal or
treatment) of the hazardous substance (CERCLA
Section 107(a)(3)] ; or
0 Accepted the hazardous substance for transport to
the disposal or treatment facility selected by such
person [CERCLA Section 107(a)(4)].
Notwithstanding CERCLA's statutory language, courts
normally seek to preserve the corporate form and thus maintain
the principle of limited liability for its shareholders. \_/
In fact, fundamental "to the theory of corporation law is
the concept that a corporation is a legal separate entity, a
legal being having an existence separate and distinct from
See Pardo v. Wilson Line of Washington, Inc., 414 F.2d
1145, 1149 (D.C. Cir. 1969); Krivo Industrial Supply Co.
v. National Distillers & Chem. Corp., 483 F.2d 1098,
1102 (5th Cir. 1973), modified per curiam, 490 F.2d 916
(5th Cir. 1974); Homan and Crimen, Inc. v. Harris, 626
F.2d 1201, 1208 (5th Cir. 1980).
G-17
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that of its owners." £/ This concept permits corporate ^^
shareholders "to limit their personal liability to the extent
of their investment." _V Thus, although a shareholder may
be considered a "person" under CERCLA (and therefore subject
to the Act's liability provisions), the application of corporate
law would tend to shield the shareholder from such liability.
Nevertheless, a court may find that the statutory language
itself is sufficient to impose shareholder liability notwith-
standing corporation la*. V Alternatively, to establish
shareholder liability, a court may find that the general prin-
ciples of corporation law apply but, nonetheless, set aside
the limited liability principle through the application of
the" equitable doctrine of "piercing the corporate veil."
Simply stated, the doctrine of piercing the corporate
veil refers to the process of disregarding the corporate
£/ Krivo Industrial Supply Co. v. National Distillers & Chem.
Corp., 483 F.2d 1098, 1102 (5th Cir. 1973), modified per
cunam, 490 F.2d 916 (5th Cir. 1974).
V id.
I/ See United States v. Northeastern Pharmaceutical and
Chemical Company, Inc., et al. , 80-5066-CV-S-4, memorandum
op. (W.D. Mo., 1984). In Northeastern Pharmaceutical the
district court noted that a literal reading of Section
101(20)(A) "provides that a person who owns interest in a
facility and is actively participating in its management
can be held liable for the disposal of hazardous waste."
(Memorandum op. at 36.) The court went on to find that
there was sufficient evidence to impose liability on one
of the defendants pursuant to this statutory definition
of "owner and operator," and the Section 107(a)(l) liability
provision of the Act. The fact that the defendant was a
major stockholder did not necessitate the application of
corporate law, and thus the principle of limited liability:
"To hold otherwise and allow [the defendant] to be shielded
by the corporate veil 'would frustrate congressional purpose
by exempting from the operation of the Act a large class
of persons who are uniquely qualified to assume the burden
imposed by [CERCLA].'" (Memorandum op. at 37, citation
omitted.)
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entity to hold either corporate shareholders or specific
individuals liable for corporate activities. V
In order to determine whether to disregard corporate form
and thereby pierce the corporate veil, courts generally have
sought to establish two primary elements. £/ First, that the
corporation and the shareholder share such a unity of interest
and ownership between them that the two no longer exist as
distinct entities. V Second, that a failure to disregard the
corporate form would create an inequitable result. £/
The first element may be established by demonstrating
that the corporation was controlled by an "alter ego." This
would not include "mere majority or complete stock control,
but complete domination, not only of finances, but of policy
and business practice in respect to the transaction attacked
V See Henn, LAW OF CORPORATIONS SS143, 146 (1961). This
doctrine applies with equal force to parent-subsidiary
relationships (i.e. , where one corporation owns the
controlling stock of another corporation).
£/ Generally, courts have sought to establish these elements
in the context of various theories, such as the "identity,"
"instrumentality," "alter ego," and "agency" theories.
Although these terms actually suggest different concepts,
each employs similiar criteria for deciding whether to
pierce the corporate veil.
~l_/ See United States v. Standard Beauty Supply Stores,
_ 561 F.2d 774, 777 (9th Cir. 1977); FMC Fin. Corp.
Murphree, 632 F.2d 413, 422 (5th Cir. 1980).
See Automotriz Del Golfo de Cal. S.A. v. Resnick, 47 Cal.
2d 792, 796, 306 P.2d 1 (1957); DeWitt Truck Broker, Inc.
v. W. Ray Flemming Fruit Co., 540 F.2d 681, 689 (4th
Cir. 1976). Some jurisdictions require a third element
for piercing the corporate veil: that the corporate
structure must have worked an injustice on, or was the
proximate cause of injury to, the party seeking relief.
See e.g., Berger v. Columbia Broadcasting System, Inc.,
453 F.2d 991, 995 (5th Cir. 1972), cert, denied, 409
U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89 (1972); Lowendahl
v. Baltimore & O.R.R., 247 A.D. 144, 287 N.Y.S. 62, 76
(1936), aff'd 272 N.Y. 360, 6 N.E.2d 56 (Ct. App. 1936),
but see, Brunswick Corp. v. Waxman, 599 F.2d 34, 35-36
(2d Cir. 1979).
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so that the corporate entity as to this transaction had at the
time no separate mind, will or existence of its own." V
In analyzing this first element, courts have generally
considered the degree to which corporate "formalities have
been followed [so as] to maintain a separate corporate iden-
tity." 1Q/ For example, the corporate veil has been pierced
tn instances where there had been a failure to maintain adequate
corporate records, or where corporate finances had not been
kept separate from personal accounts. *V
The second element of the test is satisfied when the
failure to disregard the corporate entity would result in
fraud or injustice. ££/ This would occur, for example, in
cases where there has been a failure to adequately capital-
ize for the debts normally assocated with the business
undertaking, j-_V or where the corporate form has been employed
to misrepresent or defraud a creditor. I4/
V Berger v. Columbia Broadcasting System, Inc., 453 F.2d
991, 995 (5th Cir. 1972), cert, denied, 409 U.S. 848,
93 S.Ct. 54, 34 L.Ed.2d 89 (1972).
££/ Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C. Cir.
1982) ; See DeWitt Truck Broker, Inc. v. W. Ray Flemming
Fruit Co., 540 F.2d 681, 686 n. 14 (collecting cases)
(4th Cir. 1976).
ll/ Lakota Girl Scout C., Inc. v. Havey Fund-Rais. Man., Inc.,
519 F.2d 634, 638 (8th Cir. 1975); Dudley v. Smith, 504
F.2d 979, 982 (5th Cir. 1974).
12/ some courts require that there be actual fraud or injustice
akin to fraud. See Chengelis v. Cenco Instruments Corp.,
386 F. Supp 862 (W,D. Pa.) aff'd mem., 523 F.2d 1050 (3d
Cir. 1975). Most jurisdictions do not require proof of
actual fraud. See DeWitt Truck Brokers v. W. Ray Flemming
Fruit Co., 540 F.2d 681, 684 (4th Cir. 1976).
W See Anderson v. Abbot, 321 U.S. 349, 362, 64 S.Ct. 531,
88 L.Ed. 793 (L944); Machinery Rental, Inc. v. Herpel
(In re Multiponics, Inc.), 622 F.2d 709, 717 (5th Cir.
1980).
14/ See FMC Fin. Corp. v. Murphree, 632 F.2d 413, 423 (5th
Cir. 1980).
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In applying the dual analysis, courts act under consider-
ations of equity; therefore, the question of whether the
corporate veil will be lifted is largely one of fact, unique
to a given set of circumstances. However, the substantive
law applicable to a case may also have great importance. For
Example, in applying state corporation law, state courts have
been generally reluctant to pierce the corporate veil. 15/
Federal courts, however, in applying federal standards, Tave
shown more willingness to disregard the corporate entity and
hold individuals liable for corporate actions.
In many instances federal decisions do draw upon state
law and state interpretations of common law for guidance. 1
However, federal courts that are involved with federal
question litigation are not bound by state substantive law
or rulings. 1!V In such cases, either federal common law
see discussion in Note, Piercing the Corporate Law Veil;
The Alter Ego Doctrine Under Federal Common Law, 95
Harvard L.R. 853, 855 (1982).
it is well settled that a corporate entity must be dis-
regarded whenever it was formed or used to circumvent
the provisions of a statute. See United States v. Lehigh
Valley R.R., 220 U.S. 257, 259, 31 S.Ct. 387, 55 L.Ed.
T58(1911); Schenley Distillers Corp. v. United States,
326 U.S. 432, 437, 66 S.Ct. 247, 90 L.Ed. 181 (1945);
Kavanaugh v. Ford Motor Co., 353 F.2d 710, 717 (7th
Cir. 1965); Casanova Guns, Inc. v. Connally, 454 F.2d
1320, 1322 (7th Cir. 1972).
See Seymour v. Hull & Moreland Eng'g, 605 F.2d 1105 (9th
Cir. 1979); Rules of Decision Act, 28 U.S.C. S1652 (1976).
Generally, federal courts will adopt state law when to
do so is reasonable and not contrary to existing federal
policy. United States v. Polizzi, 500 F.2d 856, 907 (1974)
See also discussion in note 19, infra.
18/ UNITED STATES CONSTITUTION art. VI, cl. 2.
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or specific statutory directives may determine whether or not
to pierce the corporate veil. ^-9/
See Anderson v. Abbot, 321 U.S. 349, 642 S.Ct. 531, 88
L.Ed. 793 (1944); Town of Brook line v. Gorsuch, 667 F.2d
215, 221 (1981). For a general discussion of federal
common law and piercing the corporate veil see, note 15,
supra. The decision as to whether to apply state law or
a federal standard is dependent on many factors:
"These factors include the extent to which: (1) a
need exists for national uniformity; (2) a federal
rule would disrupt commercial relationships predicated
on state law; (3) application of state law would
frustrate specific objectives_of the federal program;
(4) implementation of a particular rule would cause
administrative hardships or would aid in administrative
conveniences; (5) the regulations lend weight to the
application of a uniform rule; (6) the action in
question has a direct effect on financial obligations
of the United States; and (7) substantial federal
interest in the outcome of the litigation exists.
Even with the use of these factors, however, whether
state law will be adopted as the federal rule or
a unique federal uniform rule of decision will be
formulated remains unclear. The courts have failed
to either mention the applicable law or to state the
underlying rationale for their choice of which law to
apply." Note, Piercing the Corporate Veil in Federal
Courts; Is Circumvention of a Statute Enough?, 13 Pac.
L.J. 1245, 1249 (1982) (citations omitted).
In discussions concerning CERCLA, the courts and Congress
have addressed several of the above mentioned factors.
CERCLA. For example, the need for national uniformity to
carry out the federal superfund program has been clearly
stated in United States v. Chem-Dyne, C-l-82-840, slip op.
(S.D. Ohio, Oct. 11, 1983), In Chem-Dyne, the court stated
that the purpose of CERCLA was to ensure the development
of a uniform rule of law, and the court pointed out the
dangers of a variable standard on hazardous waste disposal
practices that are clearly interstate. (Slip op. at
11-13.) See also, Ohio v. Georgeoff, 562 F. Supp. 1300,
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The general rule applied by federal courts to cases in-
volving federal statutes is that "a corporate entity may be
disregarded in the interests of public convenience, fairness
and equity." ^Oy jn applying this rule, "federal courts
Vill look closely at the purpose of the federal statute to
determine whether that statute places importance on the
corporate form." 21/ Furthermore, where a statute contains
specific directives on when the corporate entity may be
disregarded and individuals held liable for the acts or debts
of a valid corporation, courts must defer to the congressional
mandate.
Thus, even under general principles of corporation law,
courts may consider the language of statute in determining
whether to impose liability on corporate shareholders.
Therefore, a court may use the statutory language of CERCLA
either as a rationale for piercing a corporate veil (when
corporation law is applied) or as an independent statutory
basis for imposing liability (notwithstanding the general
principles of corporation law). 23/
19 (continued)/
1312 (N.D. Ohio, 1983); 126 Cong. Rec. H. 11,787 (Dec.
3, 1983).
The Chem-Dyne court stated that "the improper disposal
or release of hazardous substances is an enormous and
complex problem of national magnitude involving uniquely
federal interests." (Slip op. at 11.) The court further
noted that "a driving force toward the development of
CERCLA was the recognition that a response to this
pervasive condition at the State level was generally
inadequate: and that the United States has a unique
federal financial interest in the trust fund that is
funded by general and excise taxes." (Slip op. at 11,
citing, 5 U.S. Code Cong. & Ad. News at 6,142.) See
also, 126 Cong. Rec. at H. 11,801.
20/ Capital Telephone Company, Inc. v. F.C.C., 498 F.2d 734,
. 738 (D.C. Cir. 1974).
21/ Town of Brookline v. Gorsuch, 667 F.2d 215, 221 (1981).
££/ Anderson v. Abbot, 321 U.S. 349, 365, 64 S.Ct. 531,
88 L.Ed 793 ( 1944) .
/ See discussion, supra, note 4.
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Conclusipn
The Agency should rely upon the statutory language of the
Act as the basis for imposing liability on any person who
controlled or directed the activities of a hazardous waste
facility immediately prior to abandonment, or on any person
Who is a generator or transporter, notwithstanding the fact
that that individual is a shareholder. Additionally, and
alternatively, the Agency may rely on the general principles
of corporation law to pierce the corporate veil by applying
the current federal standard of public convenience, fairness,
and equity. However, when seeking to pierce the corporate
veil, the Agency should be prepared to apply the traditional
dual test previously discussed in order to provide additional
support for extending liability to corporate shareholders.
II. THE LIABILITY OF SUCCESSOR CORPORATIONS UNDER CERCLA
Background
Section 107(a)(2) of CERCLA extends liability for response
costs to "any person who at the time of disposal of any hazardous""
substance owned or operated any facility at which such hazardous
substances were disposed of." Situations may arise, however,
where a corporation, which previously had owned or operated a
hazardous waste facility, now transfers corporate ownership to
another corporation. In such cases, it is important to determine
whether the liability of the predecessor corporation's action
regarding the disposal of hazardous waste is also transferred
to the successor corporation. 24/
Issue
What is the extent of liability for successor corporations
under CERCLA?
24/ xhe discussion that follows is equally applicable to
successor corporations of generators and transporters
associated with hazardous substances released from CERCLA
facility.
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Summary
When corporate ownership is transferred from one cor-
poration to another, the successor corporation is liable for
the acts of its predecessor if the new corporation acquired
Ownership by merger or consolidation. If, however, the
Acquisition was through the sale or transfer of assets, the
successor corporation is not liable unless:
a) The purchasing corporation expressly or
impliedly agrees to assume such obligations;
b) The transaction amounts to a "de facto" consoli-
dation or merger;
c) The purchasing corporation is merely a continu-
ation of the selling corporation; or
d) The transaction was fraudulently entered into
in order to escape liability.
Notwithstanding the above criteria, a successor corpora-
tion may be held liable for the acts of the predecessor
corporation if the new corporation continues substantially
the same business operations as the selling corporation.
Discuss ion
The liability of a successor corporation, according to
traditional corporation law, is dependent on the structure of
the corporate acquistion. 2y Corporate ownership may be
transferred in one of three ways: 1) through the sale of stock
to another corporation; 2) by a merger or consolidation with
another corporation; or 3) by the sale of its assets to another
corporation. 26/ Where a corporation is acquired through the
"purchase of aTl of its outstanding stock, the corporate
entity remains intact and retains its liabilities, despite
2V see N.J. Transp. Dep't v. PSC Resources, Inc. , 175 N. J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980).
261/ Note, Torts - Product Liability - Successor Corporation
Strictly Liable for Defective Products Manufactured by
the Predecessor Corporation, 27 Villanova L.R. 411, 412
(1980) (citations omitted) [hereinafter cited as Note,
Torts - Product Liability].
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the change of ownership." Z7/ By the same token, a purchasing
corporation retains liability for claims against the predecessor
company if the transaction is in the form of a merger or con-
solidation. 28/ Where, however, the acquisition is in the form
of a sale or other transferance of all of a corporation's assets
to a successor corporation, the latter is not liable for the
debts and liabilities of the predecessor corporation. 29/
There are four exceptions to this general rule of non-
liability in asset acquisitions. A successor corporation
is liable for the actions of its predecessor corporation if
one of the following is shown:
1) The purchaser expressly or impliedly
agrees to assume such obligations;
2) The transaction amounts to a
consolidation or merger;
'de facto1
4)
The purchasing corporation is merely a
continuation of the selling corpor-
ation? or
The transaction is entered into fraudulently
in order to escape liability. 30/
The application of the traditional corporate law approach
to successor liability has in many instances led to particularly
29/
30/
N.J. Transp. Dep't v . PSC Resources, Inc.
Super. 447, 419 A.2d 1157 (Super. Ct. Law
175
Div.
N . J .
1980)
id. A merger occurs when one of the combining corpor-
ations continues to exist; a consolidation exists when
all of the combining corporations are dissolved and an
entirely new corporation is formed.
see N.J. Transp. Dep't v . PSC Resources, Inc. , 1 7 5 N . J .
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980),
citing, Jackson v. N.J. Manu . Ins . Co. , 166 N.J. Super.
488, 454 (Super. Ct. App. Div. 1979), cert, denied, 81
N.J. 350 (1979).
Id. , Note, Torts - Product Liability, supra note, 26 at
413 n. 15-18.
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harsh and unjust results, especially with respect to product
liability cases. £V Therefore, in an effort to provide an
adequate remedy and to protect injured consumers, courts
have broadened the exemptions to the general rule by either
modifying or recasting the "de facto" and "mere continuation'
exemptions to include an element of public policy. 3_2/
More recently, however, the general rule has been aban-
doned altogether by several jurisdictions and, in essence, a
new theory for establishing successor liability has evolved
based upon the similarity of business operations. 33/ ^he
new approach has been cast by one court in the following way:
" [W]here...the successor corporation acquires
all or substantially all of the assets of the
predecessor corporation for cash and continues
3V See McKee v. Harris-Seybold Co., 109 N.J. Super. 555,
264 A.2d 98 (Super. Ct. Law Div. 1970), af f 'd per curiarr.,
118 N.J. Super. 480, 288 A.2d 585 (Super. Ct. App. Div.
1972); Kloberdanz v. Joy Mfg. Co., 288 F.Supp. 817 (D.
Colo. 1968).
3_2_/ See N.J. Transp. Dep't v. PSC Resources, Inc. , 17 5 N. J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980);
See also, Knapp v. North Am. Rockwell Corp., 506 F.2d
361 (3d Cir. 1974), cert, denied, 421 U.S. 965 (1975);
Cyr v. B. Of fen & Co., 501 F.2d 1145 (1st Cir. 1975);
Turner v. Bituminous Gas Co., 397 Mich. 406, 244 N.W.2d
873 (1976).
33/ The theory has also been referred to as the "product-
line" approach. In adopting this new approach to
successor liability, some courts have abandoned the
traditional rule of non-liability in asset acquisitions.
See e.g., Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d
3, 136 .Cal. Rptr. 574 (1977). Other courts have con-
sidered the new approach as an exemption to the general
rule. See e.g., Daweko v. Jorgensen Steel Co., 290 Pa.
Super. Ct. 15, 434 A.2d 106 (1981); Note, Torts - Product
Liability, supra note, 26 at 418 n. 38. And, a few
jurisdictions have rejected the new approach. See
Travis v. Harris Corp., 565 F.2d 443 (7th Cir. 1977);
Tucker v. Paxson Mach. Co., 645 F.2d 620 (8th Cir. 1981).
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essentially the same manufacturing operation
as the predecessor corporation the successor
remains liable for the products liability claims
of its predecessor." 3V
This theory of establishing successor liability differs
from the "de facto" and "mere continuation" exemptions in that
Che new approach does not examine whether there is a continuity
of corporate structure or ownership (e.g., whether the predecessor
and successor corporation share a common director or officer).
Instead, according to the new theory, liability will be imposed
if the successor corporation continues essentially the same
manufacturing or business operation as its predecessor corporation
even if no continuity of ownership exists between them. 35/
Until recently, this new approach for establishing successor
liability was confined mostly to product-liability cases.
However, a recent New Jersey decision extended its application
to the area of environmental torts. The Superior Court of New
Jersey, in N.J. Transportation Department v. PSC Resources,
Inc. 2£/' rejected the traditional corporate approach to
successor liability where the defendant and its predecessor
corporation had allegedly discharged hazardous wastes. The
court reasoned that the underlying policy rationale for
abandonment of the traditional approach in defective product
cases is applicable to environmental torts. Therefore, the
court held that a corporation which purchased assets of another
corporation and engaged in the practice of discharging hazar-
dous waste into a state-owned lake is strictly liable for
present and previous discharges made by itself and the prede-
cessor corporation because the successor continued the same
waste disposal practice as its predecessor.
Ramirez v. Amstead Indus., Inc., 171 N.J. Super. 261, 278,
408 A.2d 818 (Super. Ct. App. Div. 1979), aff'd, 86 N.J.
332, 431 A.2d 811 (1981).
See Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d 3, 136 Cal.
Rptr. 574 (1977)? some form of acquisition, however, is
still required. See Meisal v. Modern Press, 97 Wash.
2d 403, 645 P.2d 693.
36/ 175 N.J. Super. 447, 419 A.2d 1151 (Super. Ct. Law Div.
1980) ;
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A similar "continuity of business operation" approach has
been used in cases involving statutory violations. *'/ The
Ninth Circuit, for example, held in a case involving the Federal
Insecticide, Fungicide, and Rodenticide Act [FIFRA] 38/, that
"EPA's authority to extend liability to successor corporations
stems from the purpose of the statute it administers, which is
to regulate pesticides to protect the national environment." 39/
furthermore, the court noted that "(t]he agency may pursue the~~
Objectives of the Act by imposing successor liability where it
will facilitate enforcement of the Act." 40/ After establishing
that there had been violations of FIFRA by the predecessor
corporation, the court found that there was substantial
of business operation between the predecessor and
corporations to warrant imposition of
continuity
successor
successor liability.
Although CERCLA is not primarily a regulatory statute,
public policy considerations and the legislative history of
the Act clearly indicate that federal law would be applicable
to CERCLA situations involving successor liability. ^ V
Therefore, it is reasonable to assume that courts would similarly-
adopt the federal "continuity of business operation approach"
in cases involving CERCLA.
Conclus ion
In establishing successor liability under CERCLA, the
37/ See Golden State Bottling Co. v. NLRB, 414 U.S. 163, 94
S.Ct. 414, 38 L.Ed2d 388 (1973); Slack v. Havens, 522
F.2d 1091 (9th Cir. 1975) .
££/ 7 U.S.C. S136 e_t seq.
2_p_/ Oner II, Inc. v. United States Environ. Protection
Agency, 597 F.2d 184, 186 (9th Cir. 1979).
II*
See discussion, supra, n. 19; One of Congress1 primary
concerns in enacting CERCLA was to alleviate the vast
national health hazard created by inactive and abandoned
disposal sites. See e.g., Remarks of Rep. Florio, 126
Cong. Rec. H. 9,154 (Sept. 19, 1980), 126 Cong. Rec.
H. 11,773 (Dec. 3. 1980).
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Agency should initially utilize the "continuity of business
operation" approach of federal law. However, to provide
additional support or an alternative basis for successor
corporation liability, the Agency should be prepared to apply
the traditional exemptions to the general rule of non-liability
in asset acquisitions.
cc: A. James Barnes, General Counsel
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N^.x, ^ w,., . CL^ o IM i c^ tNVlRONMENTAL PROTECTION AGENCY
\
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POLICY ON ENFORCING INFORMATION REQUESTS
IN HAZARDOUS WASTE CASES
INTRODUCTION
Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and section 3007 of the
Resource Conservation and Recovery Act (RCRA) provide EPA with
considerable authority to obtain information from parties involved
with hazardous substances or hazardous wastes (collectively
"hazardous materials").^/ Information request letters issued
pursuant to these sections have proven quite useful, particularly
because of the high rate of compliance associated with these
letters. Occasionally, however, letter recipients refuse to
respond to requests, or provide an inadequate response. This
policy document delineates statutory authority to obtain informa-
tion and sets forth options available to the Agency to enforce
requests for information in civil cases dealing with hazardous
materials.2/
This policy has been developed along with the guidance
document on issuing notice/information request letters ("Notice
Letter Guidance"), which will be issued shortly.
]_/ These sections also provide authority to enter facilities to
perform inspections, conduct studies, and obtain samples.
Access authority, is discussed in a policy document which will be
issued separately.
2/ With regard to obtaining information in the context of
parallel civil and criminal cases, consult Courtney M. Price's
memorandum "Policy and Procedures on Parallel Proceedings at the
Environmental Protection Agency," dated January 24, 1984.
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STATUTORY AUTHORITY
Section 104(e)(l) of CERCLA provides:
For purposes of assisting in determining the
need for response to a. release under this
title or enforcing the provisions of this
title, any person who stores, treats, or
disposes of, or, where necessary to ascertain
facts not available at the facility where
such hazardous substances are located, who
generates, transports, or otherwise handles
or has handled, hazardous substances shall
upon request ... furnish information
relating to such substances...."
(Emphasis supplied)
Section 3007(a) of RCRA provides: 3/
For purposes of ... enforcing the provisions
of this title any person who generates, stores
treats, transports, disposes of, or has handled
hazardous wastes shall, upon request ... furnish
information relating to such wastes...."
(Emphasis supplied)
In most information request letters, both sections should
be cited as authority for the request. Note that it is appropriate
to cite RCRA S3007(a) as authority for requests relating to those
wastes the regulation of which has been partially suspended by
Congress pursuant to RCRA S3001(b)(3)(A) (e.g.. "mining waste").
This suspension does not limit the wastes which may be considered
"hazardous wastes" for purposes of several sections of the statute,
including section 3007. 45 Fed. Reg. 33090, (May 19, 1980) and
40 CFR 261.l(b). Additionally, if the "mining waste" or other
waste suspended under RCRA falls within the definition of
3/ The Agency has also issued RCRA 53013 Orders which contain
inter alia, requests for information.
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hazardous substance under categories A.B.D.E, or F of CERCLA
5101(14), the waste is a hazardous substance for CERCLA purposes
and is properly subject to a request under CERCLA $104. See
U.S. v. Metate Asbestos Corp.. et al.. F. Supp. , (Az., 1984)
(Globe case) holding that asbestos tailings, which are mining
wastes, are hazardous substances pursuant to CERCLA 5101(14).
INADEQUATE OR NON-RESPONSE
A diligent, good faith effort by the information request
letter recipient to directly respond to the Agency's questions
and to provide information is adequate. The determination of
whether a diligent, good faith effort has been made is necessarily
a case by case decision. Most information requests require the
recipient to indicate the types of files searched in response to
the request. This information should help the Case Development
Team (CDT) determine whether the recipient's file searching
efforts were diligent and whether the recipient actually has
submitted all available information.
In some cases, letter recipients may not have retained
records pertaining to the time period in which the Agency is
interested. This may frequently be the case in multi-party
cases containing many "small" generators who dealt with a site
that was in operation many years ago. In these cases, unless
the Agency has -evidence to the contrary, the CDT generally will
accept the recipient's assertion that its records do not go back
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chat far. The CDT can help ensure the veracity of a recipient's
claim that It does not have pertinent records by insisting on a
signed affidavit to that effect from a duly authorized company
official.
Of course, the easiest .determinations regarding adequacy of
response are those where the company simply refuses to comply.
This includes cases where a recipient responds by stating it
will not answer the questions, or simply does not respond by the
deadline included in the letter. ^/
In one case, a letter recipient asserted that certain
information requested by the Agency was properly withheld because
it was "covered by the attorney-client privilege and the work
product rule." In that case, the Agency issued a RCRA 53008,
administrative order (AO) to enforce compliance with the informa-
tion request. The Administrative Law Judge (ALJ) rejected the
company's claim and ordered it to comply with the AO. The ALJ
looked to the language and purpose of the statute and the relevance
of the information requested in rejecting the privilege claims
of the company. £/ While there have been several cases supporting
the Agency's information gathering authority under other statutes,
4_/ Information request letters are sent return receipt requested,
The CDT should ensure the party actually received the letter
before taking further action.
5/ See "Order Denying Motion and Requiring Compliance" in the
Matter of Hughes Aircraft Company case. (Attachment A)
Subsequent to this Order,the company submitted the requested
information.
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-5-
this is the only case addressing a privilege claim as a defense
to an information request under RCRA or CERCLA.
ENFORCEMENT RESPONSE
A. First Step; Reminder Letter
Once the COT has made a decision that a recipient has not
responded or has responded inadequately to a request, a "reminder"
letter should be issued. If a letter recipient, however, clearly
indicates its refusal to respond to a request, a reminder letter
would be inappropriate. The letter should recite pertinent past
details (such as when the first letter was sent and a general
description of the information sought), and indicate chat the
response is inadequate or that no response was received. Ic
should also point out that the Agency is considering further
enforcement action if it does not receive the requested informatio
by a date within the next several weeks. See Attachment B ror a
sample reminder letter.
Compliance with information request letters-can also be
increased by informing the responsible party coordinating committee
(in multi-party cases) that the government will, not settle nor
exchange information with any party that has not complied with a
request. This has proven effective in several multi-party cases.
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Any telephone or other contacts with the recipient regarding
the request should be well documented, including telephone calls
requesting clarification to questions or< agreements to extend
the deadline for response. This information will be critical
should the Agency decide to take further enforcement action.
B. Second Step; Evaluate Candidates for Further Action
As a general rule, the CDT should first consider
for further enforcement action those recipients that clearly
have not complied with the information request. These are
recipients whom the CDT is sure received the information request
and, if applicable, reminder letters, but have not responded at
all or have responded by refusing to comply with the request.
The CDT should next consider for further enforcement action
those recipients that responded with a less than diligent effort
at searching their files, or whose response was otherwise inadequate,
Finally, the CDT should consider those recipients that responded
late to the request.
C. Third Step: Evaluate Enforcement Options
The Agency's authority for enforcing an information request
is contained in 53008(a) of RCRA, and SS104(e) and 113 of CERCLA.
Section 3008 provides in pertinent part:
"... whenever on the basis of any information the
Administrator determines that any person is in
violation of any requirement of this subtitle, the
Administrator may issue an order requiring compliance
immediately or within a specified time period or the
Administrator may commence a civil action..."
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Section 3008 civil actions and AOs can seek both injunctive
relief and penalties.
Section 113 of CERCLA grants federal district courts
Jurisdiction to hear an EPA motion for injunctive relief to
compel compliance with an information request. Unlike S3008 of
RCRA, however, S104(e)(l) of CERCLA does not provide for penalties.
Section 113(b) provides in pertinent part:
"...the United States district courts shall have
exclusive original Jurisdiction over all
controversies arising under this Act...."
Thus, the options available to the Agency to pursue an
inadequate response are: (1) issue a RCRA S3008 AO seeking
injunctive relief and penalties, (2) file a civil action pursuant
to RCRA 53008 and CERCLA §113 seeking injunctive relief and
penalties, where appropriate and (3) issue a RCRA $3003 AO seeking^B
penalties only. In determining which option to choose-, the CDT
should examine the same considerations as in other potential
enforcement cases, such as the likelihood that the particular
recipient will comply with an AO and the immediacy of the need
for the information. In those cases where the information is
needed immediately or likelihood of compliance is small, a civil
action may be preferable. Each option is discussed in more
detail below.
1. RCRA 5-3008 AOs Seeking Injunctive Relief and Penalties:
AOs issued to compel compliance with an information request
are similar to other RCRA 53008 AOs. They should contain findings
of fact and determinations, should assess penalties in accordance
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- 8 -
with the Agency's RCRA Penalty Policy £/ and should order the
respondent to comply with the original information request.
Care should be taken to ensure that the findings of fact demon-
strate the relevance of the information requested, that the
information is necessary to respond to a release or to enforce
the appropriate provisions of the Acts, and that the recipient
deals with hazardous waste. Note that under RCRA S3008(a) each
day of noncompliance with an AO is a separate violation for
purposes of assessing penalties.
2. Filing RCRA S3008 and CERCLA 5113 Civil Actions: TJ
A referral to the Department of Justice (DOJ) for inadequate
or non-response to an information request should include all
relevant letters, documentation of telephone contacts, information
sufficient to demonstrate that the recipient deals with hazardous
materials, and that the information request is for one or both
of the specified purposes of the statutes. Again, these referrals
are similar to other referrals and all pertinent guidance should
be followed. As indicated in previous guidance, a referral
pursuant to $3008 can seek enforcement of an AO, penalties or
remedies for the underlying 53008 violation.
6/ See the Final RCRA Civil Penalty Policy, May 8, 1984,
page 31, number (4) for an example of a penalty calculation
for noncompliance with a RCRA $3007 information request.
7.7 The United States has filed a complaint for noncompliance
with a RCRA S3007/ CERCLA $104 information request in
U.S. v. George Liviola. Jr., et al.. No. C84-1879Y, Northern
District of Ohio.Copies are available from OECM-Waste.
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3. Issuing AOs Assessing Penalties Only;
RCRA S3008 AOs issued to letter recipients who eventually
submit the requested information, but submit it late or after
the Agency had issued reminder letters only assess a penalty,
since injunctive relief (for submission of the information) is
no longer necessary. Regional enforcement personnel are encouraged
to use penalty-only AOs for late submissions if adequate resources
are available. These AOs will demonstrate to the regulated
community that the Agency is serious about utilizing its informa-
tion gathering authority and taking further action to enforce
the use of that authority, where appropriate.
CONCLUSION
The information gathering authority available to the Agency
will continue to be effective only if the Agency takes a strong
stand in enforcing these requests. Whenever possible, the CDTs
should take whatever action is necessary to ensure compliance
with these letters.
Attachments
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%. .0 sr,,f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON, D.C. 20460
OCT 1 2 1934
Off 1C?
SOLID WASTE AND £M-
MEMORANDUM
SUBJECT: Procedures for Issuing Notice Letters
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
TO: Directors, Waste Management Divisions
Regions I-X
Directors, Environmental Services Divisions
Regions I-X
Regional Counsels, Regions I-X
This memorandum provides guidance on preparing and
issuing notice letters. It reflects the Agency's policy on
allowing potentially responsible parties to conduct remedial
investigations and feasibility studies (RI/FS) and addresses
Regional concerns regarding notice letters. The guidance
consists of two major parts: a discussion of site soecific
considerations in drafting notice letters and a generic
sample notice letter with explanatory discussion. The auidance
is intended to assist the Regions in developing technically
accurate notice letters that best effectuate the purpose of
notification under the Comprehensive Environmental Response,
Compensation, and Liability Act.
BACKGROUND
Section 104{a)(l) of the Comprehensive Environmental
Response, Comoensation and Liability Act of 1980 (CEP.CLA)
authorizes the President to soend CERCLA Trust funds to
clean up hazardous waste sites unless the President determines
that proper cleanup will be undertaken by the responsible
parties.
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responsible party (PRP) is wining ana cinanciaiiy capable
of undertaking a proper response is the issuance of notice
letters to identified PRPs. The letters inform PRPs of
their potential liability for cleanup and, under certain
conditions, provide them with an opportunity to undertake
necessary action after negotiation with the Agency. This
approach conforms with the Agency's policy to secure cleanup
by responsible parties, in lieu of Superfund use, whenever
such cleanup can be accomplished in a timely and effective
manner.
While the Agency believes that notice letters are not
required by CERCLA and are not a precondition to cost
recovery, notice and the receipt of notice may help to
minimize the possibility of a PRP raising insufficient
notification as an issue in subsequent litigation.
The Office of Waste Programs Enforcement (OWPE) in the
Office of Solid Waste and Emergency Response (OSWER), in
consultation with the Office of Enforcement and Compliance
Monitoring - Waste (OECM-Waste), was initially given the
responsibility for drafting, reviewing, and issuinn notice
letters to potentially responsible parties. The authority
to issue information requests under CERCLA was formally
delegated to the Regional Administrators on April 16, 1984
as part of an overall CERCLA delegation of authority. Notice
letter issuance was not formally addressed as part of this
delegation. This memorandum specifically clarifies the
authority to issue notice letters as lying with the Regional
Administrators. Each Regional Administrator may further
delegate the authority for issuance of notice letters to the
appropriate Regional Division Director.
In May 1983, the Office of Waste Programs Enforcement
issued draft notice letter guidance to the Regions that
outlined procedures for issuing notice letters to PRPs
concurrent with the conduct of a Fund-financed RI/FS. The
guidance also indicated that PRPs would be notified that an
Agency-financed RI/FS had begun or will soon begin and that
the PRPs may take over the RI/FS if they are unecmivocally
willing to undertake the RI/FS and will commit to the
implementation of the remedy approved by EPA based on
the results of the RI/FS.
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- 3 -
Since this draft guidance was issued, the Agency has
established a new RI/FS policy. Under the new policy, the
Agency will now give PRPs the opportunity to participate in
the RI/FS process or conduct the RI/FS consistent with Agency
procedures and guidance. This policy was developed to allow
the Agency to target its enforcement priorities, reduce the
possibility of unsuccessful or protracted negotiations with
PRPs, and enhance the quality of a private-party RI/FS.
OSWER and OECM-Waste have issued a memorandum to the
Regional Air and Waste Management Division Directors and
Regional Counsels outlining the circumstances in which PRPs
may conduct the RI/FS and procedures for notifying PPPs in
such cases (see, "Participation of Potentially Responsible
Parties in the Development of Remedial Investigations and
Feasibility Studies under CERCLA," Lee Thomas, Courtney
Price, March 20, 1984). This revised RI/FS policy requires
the issuance of two sets of notice letters to PRPs: one for
the RI/FS and the other at or near the completion of the
RI/FS for the site remedy. Timing of notice letters is
discussed in detail later in this guidance.
POTENTIALLY RESPONSIBLE PARTY DETERMINATION
The type of factual evidence needed to establish that a
party is responsible for the problems at a oarticular site is
discussed in a previously issued guidance document entitled,
"Procedures for Identifying Responsible Parties at Uncontrolled
Hazardous Waste Sites - Superfund", Prepared by the Office of
Legal and Enforcement Counsel (February 1982).
The amount of such evidence depends on the circumstances
of each case and should be determined by the Regional program
office in consultation with the Regional Counsel. In the
early stages of case development, any individual or company
even remotely associated with a particular site may be sent
initial information request letters. The responses to these
letters may then provide additional evidence linking certain
parties more closely to the site.
Ultimately, any party receiving a notice letter would be
considered a potentially responsible party. The issuance
of a notice letter, therefore, should be considered carefully
because it not only designates the recipient as a PRP but
opens the possibility of the PRP's name being released in
response to a Freedom of Information Act (FOIA) request.
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PURPOSE OF THE GUIDANCE
Initial notice letters issued by EPA were based on a
variety of models and were general enough to be applicable
to most potentially responsible parties simply by means of
inserting the name of the addressee. While adequate for
notification purposes, the content of those letters was
not tailored to reflect the circumstances present at each
site or the status of each PRP. Previous notice letters
were perceived, therefore, to have two limitations: they
did not adequately encourage a negotiated cleanup by the
PRP nor did they provide PRPs with an adequate level of
information on the Agency's planned or actual response
actions at the site.
This guidance is designed to assist Regional program
personnel in preparing sound and technically accurate notice
letters, in accordance with the Agency RI/FS policy,
that will encourage cleanup by potentially responsible parties.
Headquarters Program and Enforcement Counsel personnel will
not be involved in drafting or sending notice letters.
Nonetheless, copies of all CERCLA notice letters issued
(whether for RI/FS, removal actions, or remedial actions)
must be forwarded to OWPE; addressed to the Director; at the
same time they are sent to the potentially responsible parties.
Vital information on all notice letters sent will be recorded
and tracked by the Superfund Enforcement Tracking System.
PURPOSE OF THE NOTICE LETTER
Notice letters will inform the potentially responsible
parties that Fund-financed actions are planned and/or have
been completed. Notice letters will provide PRPs with the
opportunity to undertake future actions, and will inform
PRPs of both their potential obligation under Section 106
of CERCLA to implement any needed relief actions determined
by EPA and their potential liablility under Section 107 of
CERCLA for the cost of Fund-financed actions if they do not
respond or fail to respond properly. PRPs will also be
informed of their opportunity to discuss with Agency personnel
the response measures to be performed.
Notice letters should generally include information
requests. Under Section 3007(a) of the Resource Conservation
and Recovery Act (RCRA), the Administrator has the authority
to require any person who generates, stores, treats, transports
disposes of, or otherwise handles or has handled hazardous
waste to provide certain information on the identity, volume,
transporter, and time of the activity regarding the hazardous
wastes at the site in question. Section 104(e) of CERCLA
provides similar authority for all hazardous substances. The
facts gleaned from the information sent in response to such
G-44
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a reques-t will assist the Regional Office in identifying
additional responsible parties as well as in preparing for
litigation or negotiating a voluntary cleanup. If this
information has already been obtained through a previous
information request letter, an information request in the
notice letter may not be necessary.
The Department of Justice has asked that future RCRA and
CERCLA referrals from the Agency contain information regarding
the insurance coverage of PRPs. To that end, all information
requests under RCRA $3007 and CERCLA §104 should include a
request for information regarding the existence of insurance
coverage for damages resulting from releases of hazardous
substances and for copies of all such insurance policies,
both currently in effect and in effect during the period of
activity in question. This will enable the Department of
Justice to evaluate the extent of coverage in hazardous
waste cases and, where appropriate, to notify insurance
carriers directly of potential liability under CERCLA for
the costs of cleanup.
This guidance contains a generic sample notice letter
with explanatory discussion. Since each site and each PRP
will present different circumstances, this generic sample
notice letter is designed to be flexible and can be easily
modified. Each site and PRP may dictate a different mix
of information in the letter actually sent to the PR?.
Various site specific and PRP specific considerations, which
are discussed below, along with the explanation accompanying
the generic sample notice letter will assist the Regions in
drafting notice letters which best effectuate the purposes
described above.
CONSIDERATIONS IN DRAFTING NOTICE LETTERS
Numerous site specific and PRP specific considerations
will affect the actual language of the notice letter. The
following factors should, therefore, be kept in mind when
drafting case specific letters:
The type of action contemplated (RI/FS, removal or
remedial)
The tone desired
The timing of the notice letter
Litigation involving the site
The type of release (actual, threatened, or both)
The response desired
G-45
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Agency resources needed for follow-up to notice letter
Possible release of identities of responsible parties
The number of PRPs to whom notice letters must be sent
Some of these factors may be more important than others, and
in a given situation, several may in fact not even be
applicable. Each factor, however, should be assessed in
light of the specifics of the case so that the best possible
notice letter will result.
1) Type of Action
The type of action the Agency contemplates (immediate
removal, initial remedial measure (IRM), RI/FS, or remedial
action) will also affect the content of the notice letter.
In immediate removal situations, efforts to obtain private
party response may often begin with an oral notice from the
on-scene-coordinator, followed by a written notice letter
confirming the verbal request for response and notification.
In some emergency situations where a CERCLA Administrative
Order is issued to responsible parties, no notice letter is
sent per se. The Order is sent under a cover letter which
serves to notify the responsible parties of their liability
for cleanup costs.
IRMs are somewhat less urgent, thereby generally
eliminating the special need for oral notice prior to written
notice. Notice letters will be issued, followed by Agency
negotiations with the PRPs, aimed at securing private party
cleanup within an established period of time.
For sites where an RI/FS is planned, PRPs will be notified
of the opportunity to perform or participate in the RI/FS.
The Agency will make available a list of sites scheduled for
RI/FS development. This list will be published at least
annually, on a fiscal year basis, and may be updated quarterly
during the course of the year. Accompanying the list will
be a statement that PRPs can contact Agency personnel to
discuss their conduct of, or participation in, the RI/FS.
The Agency will then send notice letters to PRPs for sites
listed on the Superfund Comprehensive Accomplishments Plan.
The notice letters will inform the potentially responsible
parties that Fund-financed RI/FS actions are planned; that
the results of the studies will be used to select a remedy
for the site; that PRPs can meet with Agency personnel to
discuss their participation in or conduct of the RI/FS; that
PRPs may be liable for the costs of the RI/FS performed by
the government; and that PRPs will have an opportunity to
meet with Agency personnel to discuss design and implementation
of the remedy after completion of the RI/FS.
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Upon completion of an RI/FS at a site, the Agency will
send notice letters to PRPs which should invite each PRP to
prepare comments on the draft RI/FS, offer the PRP the
opportunity to undertake the design and construction of the
remedy selected by the Agency, and indicate deadlines for
negotiations with the Agency. All notice letters, whether
for removal, RI/FS, or remedial actions, should inform the
PRP of both his/her potential obligation under Section 106
of CERCLA to implement any needed relief actions determined
by EPA and potential liability under Section 107 of CERCLA
for any Fund-financed activities performed at the site and
describe the next response action which is expected to occur.
2) Tone
The tone a notice letter projects will indicate the
Agency's position as clearly as any specific language the
letter contains. The desired tone will be achieved by lanauage
that clearly outlines the PRP's potential statutory liability
and yet is encouraging regarding prospective negotiations.
The letter should encourage cooperative discussion between
the PRP and the Agency. Ultimately, however, program personnel
in consultation with the Regional Counsel must exercise
their own discretion in setting the tone and emphasis that
best effectuates the purposes of the notice letter.
The letter should not indicate that the Agency has made
a final determination of liability. Such determinations are
made only if and when the Agency pursues an enforcement
action against a responsible party.
3) Timing of Notice Letter
In general, notice letters should be issued as soon as
possible after completion of the responsible party search
and prior to any Federally-financed response actions. The
notice letter may be an initial contact, or a followup to
an oral notice. If it is EPA's initial contact with the PRP,
a more detailed explanation of CERCLA and its ramifications
for the PRP would be appropriate.
In the case of immediate removal actions, written
notification may not be feasible, and only oral notification
may be possible. A notice letter should immediately be sent
confirming the oral notice, reiterating the pertinent facts
and any agreements that were reached, and expanding on the
party's responsibilities under CERCLA. This type of notice
letter would necessarily be structured somewhat differently
than an "initial contact" notice letter. In addition, the
PRP's response to an oral notification will affect the content
of the notice letter. Other oral or written communication
with the PRP, where appropriate, should be recognized in the
notice letter as well.
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For RI/PS actions, notice letters will be issued only
after a site appears on the Superfund Comprehensive
Accomplishments Plan (SCAP) and should normally be issued no
later than sixty days before the scheduled date for obligation
of funds for the RI/FS~ Timing of the notice letter should
take into account the number of PRPs and the complexity of
the data associating PRPs with the site. Sufficient time
should be allowed to enable the Regional Office to collect
and analyze data received from PRPs in response to any
information request that may be contained in the notice
letter. In addition, PRPs should have sufficient time to
organize into a steering committee to speak on behalf of as
many PRPs as possible when discussions on the RI/FS begin.
Timely completion of these activities will help avoid
unnecessary delays in meeting Fund-financed RI/FS commitments
set forth in the SCAP.
Once resources for an Agency-financed RI/FS have been
obligated, the PRP will not be allowed to take over development
of the RI/FS. Further, in the event a PRP is discovered
after the Fund-financed RI/FS has been initiated or completed
(e.g., due to newly discovered evidence), a notice letter
should still be sent as soon as is practical., The letter
should contain language urging the PRP to undertake the
design and construction of a remedy following completion of
the RI/FS and inform the PRP of his/her potential liability
for activities already performed at the site as well as any
future activities. The letter may take the form of a
combination notice letter/demand letter.
Under certain circumstances, up to three notice letters
may be appropriate. An initial notice letter could be sent
prior to a Fund-financed immediate removal or IRM. A second
notice letter will be sent when the Agency plans to undertake
an RI/FS. A third notice letter will be issued when the
Agency has completed or is nearing completion of the RI/FS
and approximately thirty days in advance of the public comment
period on the RI/FS. More than thirty days may be appropriate
if there exist a large number of PRPs at a site.
4) Litigation Involving the Site
If potentially responsible parties are involved in RCRA,
CERCLA, or other Federal litigation at the site, the Department
of Justice (DOJ) must be informed of any notice letters which
the Agency is planning to send. Notice letters in these
situations will be issued by the Regional program office
only after consultation with DOJ and Regional Counsel. In
these situations, copies of notice letters issued and
responses received must be forwarded to DOJ and to the
Office of Enforcement and Compliance Monitoring - Waste
(OECM-Waste) in addition to OWPE.
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5) Type of Hazardous Substance Release
Discussion of the type of release or threatened release
may involve terminology unfamiliar to the PRP. The notice
letter should, however, at least identify whether the episode
involves a release or a threatened release of hazardous
substances and, if the information is available and supportable,
the substances involved. Regional program personnel have
wide latitude when drafting the notice letter to decide the
appropriate depth of technical discussion.
6) Type of Response Desired
Notice letters should be issued in accordance with a
plan developed by the case management team. This should
allow Regional personnel to be adequately prepared for
immediate questions and requests for documents that may
arise as a result of the letters, as well as any negotiations
that may subsequently occur. In most circumstances, the
notice letter should specifically request a written response
from the PRP.
In some cases, such as where a great number of PRPs
exist, a somewhat different response may be requested from
those PRPs which EPA believes contributed most significantly
to the hazardous substances at the site. For example: the
case management team may select a "tier" of PRPs. The notice
letter sent to this tier of PRPs may include an invitation
to initiate negotiations with EPA, while the notice letter
sent to the remaining PRPs may only reauest a written
response.
In limited cases, such as where a great number of PRPs
are to respond within a short period of time (i.e., 24 - 48
hours), Agency personnel may be inundated with a number and
variety of responses. Requesting initial oral responses
(directed to a specified telephone number where specific
questions will be asked), with written responses or
informational meetings with a select group or all PRPs to
follow, may be appropriate. Under all circumstances, contact
with the Agency in any form should be encouraged.
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7) Resources Needed for Follow-Through Activity
In issuing notice letters it is important to consider
carefully the resources necessary to follow through with the
next phase of activity. In particular, the Region issuing
the notice letter should be prepared to make timely and
appropriate responses to questions from PRPs and to conduct
negotiations. It may be helpful to assemble: a fact sheet,
a list or package of references regarding the site, and/or
applicable guidance describing what the Agency considers to
be necessary prerequisites to PRP performance of any removal,
RI/FS, or remedial action. This may not always be possible
during the early phases of site management planning due to
the lack of detailed information both on the site and on
remedial alternatives. The notice letters should, therefore,
only be issued after discussion with Regional Counsel reaarrUng
meeting times and the enforcement strategy for the site.
8) Release of Identities of Potentially Responsible
Parties to Facilitate Superfund Negotiations
The names and addresses of potentially responsible
parties should be released prior to Superfund negotiations
to encourage the PRPs to organize among themselves in order
to reach a settlement with EPA and in accordance with the
following guidelines:
- The release of the names of potentially responsible
parties prior to negotiations should occur routinely
to all potentially responsible parties receiving notice
letters and a list of PRP names and addresses should
be attached to the notice letter. This information
will encourage prenegotiation organization among PRPs
and may facilitate meeting negotiation deadlines.
- A cover letter attaching the list of PRP names and
addresses should include the following disclaimer:
This list represents EPA's preliminary findings on
the identities of potentially responsible parties.
Inclusion on this list does not constitute a final
determination concerning the liability of any
party for the hazard or contamination at the site
in question.
- PRP names may also be released in response to Freedom
of Information Act (FOIA) requests. Relevant guidance
is included in the January 26, 1984 memorandum from
Gene A. Lucero and Kirk F. Sniff, titled; "Releasing
Identities of Potentially Responsible Parties in
Response to FOIA Requests".
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9) The Number of Parties to whom Notice Letters Must be Sent
Notice letters should be sent to every PRP at a site.
The Regions may, as a matter of program discretion, issue
notice letters which request a different response from various
PRPs, as described previously in this guidance. The immediacy
of the hazard at the site may limit the number of PRPs that
will initially receive notice letters. This approach will
facilitate negotiations with potentially responsible parties
so that response actions can begin promptly. The Regions
should later issue notice letters to the remaining PRPs,
after the immediate hazard at a site has been abated.
CONSIDERATIONS ON THE USE OF THE GENERIC SAMPLE NOTICE LETTER
The generic sample notice letter which follows this
discussion (page 13) is a combined notice letter/information
request letter and is an example only. The generic letter
should be modified according to the considerations outlined
above and should reflect the specific circumstances of the
case. While several or possibly even hundreds of letters
per site may necessarily be somewhat similar, each letter
should, whenever possible, be considered individually and
tailored to include PRP specific and site specific factors.
FORMAT OF GENERIC SAMPLE NOTICE LETTER
The generic sample notice letter and following analysis
are for a site in which the Agency is planning an RI/FS.
Notice letters for immediate removals, IRMs, and design
and implementation of site remedies may also be drafted by
modifying this generic sample notice letter.
For identification purposes, the sample letter is divided
into twenty paragraphs, labeled Paragraph A throuah Paragraph T.
Different language alternatives are offered within the text
of the generic sample notice letter. A two bracket system
(outer and inner brackets) has been used. An outer set of
brackets will contain instructions (in capital letters).
The language alternatives will be contained in inner brackets.
For example:
The [CHOOSE ONE:
1. [release]
2. [threat of release]]...
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- 12 -
For consistency, if the bracketed material only contains
instructions and no alternatives both inner and outer brackets
will be used. For example:
The [[name of site]] site...
A paragraph by paragraph analysis accompanies the qeneric
sample notice letter to help in tailoring the generic letter
to the circumstances of a particular site.
USE OF THIS GUIDANCE
The policy and procedures set forth here, and internal
office procedures adopted in conjunction with this document,
are intended for the guidance of staff personnel, attorneys,
and other employees of the U.S. Environmental Protection
Agency. They do not constitute rulemaking by the Agency,
and may not be relied upon to create a right or benefit,
substantive or procedural, enforceable at law or in enuity,
by any person. The Agency may take any action at variance
with the policies or procedures contained in this memorandum
or which are not in compliance with internal office procedures
that may be adopted pursuant to those materials.
G-52
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GENERIC SAMPLE NOTICE LETTER FOR THE CONDUCT OF AN RI/FS
Paragraph A
Certified Mail:
Return Receipt Requested
paragraph B
Name of PRP
Mailing Address of PRP
Paragraph C
Re: Name of Site
Address of location of site
Paragraph D
Dear [[name of PRP if individual is known, "Sir or Madame"
if otherwise]]:
Paragraph E
The United States Environmental Protection Agency
(EPA) is considering spending public funds to investigate
and take corrective action for the control of [CHOOSE ONE
OR BOTH, AS APPROPRIATE:
1. [releases]
2. (threatened releases]]
of hazardous substances at the above referenced site.
Unless EPA determines that a responsible party will properly
perform such actions, EPA intends to do so pursuant to
Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. 9601
e_t seq (CERCLA) .
Under Sections 106(a) and 107(a) of CERCLA and other laws,
responsible parties may be obligated to implement any needed
relief actions determined by EPA and may also be liable for
all costs incurred by the government in responding to any
release or threatened release at the site. Such costs can
include, but are not be limited to, expenditures for
investigation", planning, cleanup of the site and enforcement.
By this letter EPA notifies you of your potential liability
with regard to this matter and encourages you to voluntarily
undertake cleanup activities which will be overseen by EPA.
* Note that a specific explanation regarding each paragraph
begins on page 20.
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- 14 -
paragraph F
Responsible parties under CERCLA include current and
past owners and operators, as well as persons who generated
the hazardous substances or were involved in the transport,
treatment, or disposal of them. Based on [[identify here
any evidence obtained by EPA that documents the PRF's
connection with the site such as site records, manifests,
state records, corporate records, etc.]], EPA has information
indicating that you may be a responsible party. More
specifically, the Agency has reason to believe that (CHOOSE
THE APPROPRIATE BRACKET:
1. [you]
2. [your company]
3. [name the company]]
[CHOOSE THE APPROPRIATE BRACKETED CLAUSE:
1. [were the owner/operator of the facility]
2. [were a former owner/operator of the facility
at the time of disposal of hazardous
sustances at the facility]
3. [did, by contract, agreement, or otherwise;
arrange for the disposal, treatment, or
transportation for disposal or treatment
of hazardous substances at the facility]
4. [accepted hazardous substances for transport
to disposal or treatment facilities selected
by you]]
during the period [[specify dates that the PRP engaged in
the activity]].
Paragraph G
EPA has determined that [CHOOSE APPROPRIATE BRACKETED
CLAUSE:
1. [a release of hazardous substances (as defined
by section 101(14) of CERCLA) has occurred
at]
2. [there is a substantial threat of release of
hazardous substances (as defined by section
101(14) of CERCLA) from]]
the above referenced facility. At the present time, [[identify
substance(s) at the site that was(were) handled by the PRP
or the name of substance(s) found at the site if the PRP
is(was) an owner or operator]] is [CHOOSE ONE OR BOTH, AS
APPROPRIATE:
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Tj UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I WASHINGTON. O.C. 204iO
OEC-5B64
MEMORANDUM
SUBJECT: Interim ^ERCLA Settlement Policy
_
FROM: See M. Thomas^, Assistant Administrator
Office of Solid Wia~ae and Emergency Response
CourtneyM. Pri'crT raSTsTTant Administrator
\ic\ of ZA&ayCement and Coapliance Monitoring
P. HenryXabi'cT»t7 II, Assistant Attorney General
Land andvwatural Resources Division
Department of Justice
TO: Regional Administrators, Regions I-X
This memorandum sets forth the general principles governing
private party settlements under CERCLA, and specific procedures
for the Regions and Headquarters to use in assessing private
party settlement proposals. It addresses the following topics:
1. general principles for EPA review of private-party cleanup
proposals;
2. management guidelines for negotiation;
3. factors governing release of information to potentially
responsible parties;
4. criteria for evaluating settlement offers;
S. partial cleanup proposals;
6. contribution among responsible parties;
7. releases and covenants not to sue;
8. targets for litigation;
9. timing for negotiations;
10. management and review of settlement negotiations.
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APPLICABILITY
This memorandum incorporates the draft Hazardous Waste
Case Settlement Policy, published in draft in December of
1983. It. is applicable not only to multiple party cases but
to all civil hazardous wast* enforcement cases under Superfund.
It is generally applicable to imminent hazard enforcement
actions under section 7003 of RCRA.
This policy establishes criteria for evaluating private
party settlement proposals to conduct or contribute to the
funding of response actions, including removal and remedial
actions. It also addresses settlement proposals to contribute
to funding after a response action has been completed. It
does not address private-party proposals to conduct remedial
investigations and feasibility studies. These proposals are
to be evaluated under criteria established in the policy guidance
from Lee M. Thomas, Assistant Administrator, Office of Solid
Waste and Emergency Response, and Courtney Price, Assistant
Administrator, Office of Enforcement and Compliance Monitoring
entitled " Participation of Potentially.Responsible Parties in
Development of Remedial Investigations and Feasibility Studies
under CERCLA" . (March 20, 1984)
I. General Principles
The Government's goal in implementing CERCLA is to achieve
effective and expedited cleanup at as many uncontrolled hazardous
waste facilities as possible. To achieve this goal, the Agency
is committed to a strong and vigorous enforcement program. The
Agency has made major advances in securing cleanup at some of
the nation's worst hazardous waste sites because of its demonstrate
willingness to use the Fund and to pursue administrative and
judicial enforcement actions. In addition, the Agency has obtained
key decisions, on such issues as joint and several liability,
which have further advanced its enforcement efforts.
The Agency recognizes, however, that Fund-financed cleanups,
administrative action and litigation will not be sufficient to
accomplish CCRCLA's goals, and that voluntary cleanups are
essential to a successful program for cleanup of the nation's
hazardous waste sites. The Agency is therefore re-evaluating
its settlement policy, in light of three years experience with
negotiation and litigation of hazardous waste cases, to remove
or minimize if possible the impediments to voluntary cleanup.
As a result of this reassessment, the Agency has identified
the following general principles that govern its Superfund
enforcement program:
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The goal of the Agency in negotiating private party cleanup
and in settlement of hazardous waste cases has been and will
continue to be to obtain complete cleanup by the responsible
parties, or collect 100% of the costs of the cleanup action.
Negotiated private party actions are essential to an effective
program for cleanup of the nation's hazardous waste sites.
An effective program depends on a balanced approach relying
on a mix of Fund-financed cleanup, voluntary agreements
reached through negotiations, and litigation. Fund-financed
cleanup and litigation under CERCLA will not in themselves
be sufficient to assure the success of this cleanup effort.
In addition, expeditious cleanup reached through negotiated
settlements is preferable to protracted litigation.
A strong enforcement program is essential to encourage
voluntary action by PRPs. Section 106 actions are particnlarly
valuable mechanisms for compelling cleanups. The effectiveness
of negotiation is integrally related to the effectiveness of
enforcement and Fund-financed cleanup. The demonstrated
willingness of the Agency to use the Fund to clean up sites
and to take enforcement action is our most important tool
for achieving negotiated settlements.
The liability of potentially responsible parties is strict,
joint and several, unless they can clearly demonstrate that
the ham at the site is divisible. The recognition on the
part of responsible parties that they may be jointly and
severally liable is a valuable impetus for these parties to
reach the agreements that are necessary for successful
negotiations. Without such an impetus, negotiations run a
risk of delay because of disagreements over the particulars
of each responsible party's contribution to the problems at
the site.
The Agency recognizes that the factual strengths and weaknesses
of a particular case are relevant in evaluating settlement
proposals. The Agency also recognizes that courts may consider
differences among defendants in allocating payments among
parties held jointly and severally liable under CERCLA. While
these are primarily the concerns of PRPs, the Agency will also
consider a PRP's contribution to problems at the site, including
contribution of waste, in assessing proposals for settlement and
in identifying targets for litigation.
Section 106 of CERCLA provides courts with jurisdiction ro
grant such relief as the public interest and the equities of
the case may require. In assessing proposals for settlement
and identifying targets for litigation, the Agency will
consider aggravating and mitigating factors and appropriate
equitable factors.
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In many circumstances, cleanups can be started more quickly
when private parties do the work themselves, rather than
provide money to the Fund. It is therefore preferable for
private parties to conduct cleanups themselves, rather than
simply provide funds for the States or Federal Government
to conduct the cleanup.
The Agency will create a climate that is receptive to private
party cleanup proposals. To facilitate negotiations, the
Agency will make certain information available to private
parties. PRPs will normally have an opportunity to be
involved in the studies used to determine the appropriate
extent of remedy. The Agency will consider settlement
proposals for cleanup of less than 100% of cleanup activities
or cleanup costs. Finally, upon settling with cooperative
parties, the government will vigorously seek all remaining
relief, including costs, penalties and treble damages where
appropriate, from parties whose recalcitrance made a complete
settlement impossible.
The Agency anticipates that both the Fund and private resources
may be used at the same site in some circumstances. When
the Agency settles for less than 100% of cleanup costs, it
can use the Fund to assure that site cleanup will proceed
expeditiously, and then sue to recover these costs from non-
settling responsible parties. Where the Federal government
accepts less than 100% of cleanup costs and no financially
viable responsible parties remain, Superfurid monies may be
used to make up the difference.
The Agency recognizes the value of some measure of finality
in determinations of liability and in settlements generally.
PRPs frequently want some certainty in return for assuming
the costs of cleanup, and we recognize that this will be a
valuable incentive for private party cleanup. PRPs frequently
seek a final determination of liability through contribution
protection, releases or covenants not to sue. The Agency
will consider releases from liability in appropriate situ-
ations, and will also consider contribution protection in
limited circumstances. The Agency will also take aggressive
enforcement action against those parties whose recalcitrance
prevents settlements. In bringing cost recovery actions,
the Agency will also attempt to raise any remaining claims
under CERCLA section 106, to the extent practicable.
The remainder of this memorandum sets forth specific
policies for implementing these general principles.
Section II sets forth the management guidelines for negoc
with less than all responsible parties for partial settlements
This section reflects the Agency's willingness to be flexible
by considering offers for cleanup of less than 100% of cleanup
activities or costs.
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Section III sets forth guidelines on- the release of
information. The Agency recognizes that adequate information
facilitates more successful negotiations. Thus, the Agency
will combine a vigorous program for obtaining the data and
information necessary to facilitate settlements with a program
for releasing information to facilitate communications among
responsible parties.
Sections IV and V discuss the criteria for evaluating
partial settlements. As noted above, in certain circumstances
the Agency will entertain settlement offers from PRPs which
extend only to part of the site or part of the costs of cleanup
at a site. Section IV of this memo sets forth criteria to be
used in evaluating such offers. These criteria apply to all
cases. Section V sets forth the Agency's policy concerning
offers to perform or pay for discrete phases of an approved
cleanup.
Sections VI and VII relate to contribution protection and
releases from liability. Where appropriate, the Agency may
consider contribution protection and limited releases from
liability to help provide some finality to settlements.
Section VIII sets forth criteria for selecting enforcement
cases and identifying targets for litigation. As discussed
above, effective enforcement depends on careful case selection
and the careful selection of targets for litigation. The Agency
will apply criteria for selection of cases to focus sufficient
resources on cases that provide the broadest possible enforcement
impact. In addition, targets for litigation will be identified
in light of the willingness of parties to perform voluntary
cleanup, as well as conventional litigation management concerns.
Section IX sets forth the requirements governing the timing
of negotiations and section X the provisions for Headquarters
review. These sections address the need to provide the Regions
with increased flexibility in negotiations and to change Headquar:
review in order to expedite site cleanup.
II. Management Guidelines for Negotiation
As a guideline, the Agency will negotiate only if the
initial offer from PRPs constitutes a substantial proportion of
the costs of cleanup at the site, or a substantial portion of
tre -e-.^ed remedial action. Entering into discussions for less
than a substantial proportion of cleanup costs or remedial actior
needed at the site, would not be an effective use of gover---?-:
resources. No specific numerical threshold for initiating
negotiations has been established.
In deciding whether to start negotiations, the Regions
should weigh the potential resource demands for conducting
negotiations against the likelihood of getting 100% of costs
or a complete remedy.
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Where the Region proposes to negotiate for a partial
settlement involving less than the total costs of cleanup, or
a complete remedy, the Region should prepare as part of its
Case Negotiations Strategy a draft evaluation of the case
using the settlement criteria identified in section IV. The
draft should discuss how each of the factors in section IV
applies to the site in question, and explain why negotiations
for less than all of the cleanup costs, or a partial remedy,
are appropriate. A copy of the draft should be forwarded to
Headquarters. The Headquarters review will be used to identify
major issues of national significance or issues that may involve
significant legal precedents.
In certain other categories of cases, it may be appropriate
for the Regions to enter into negotiations with PRPs, even
though the offers from PRPs do not represent a substantial
portion of the costs of cleanup. These categories of cases
include:
administrative settlements of cost recovery actions
where total cleanup costs were less than $200,000;
claims in bankruptcy;
administrative settlements with de minimis contributors
of wastes.
Actions subject to this exception are administrative
settlements of cost recovery cases where all the work at the
site has been completed and all costs have been incurred. The
figure of 3200,000 refers to all of the costs of cleanup. The
Agency is preparing more detailed guidance on the appropriate
form of such settlement agreements, and the types of conditions
that must be included.
Negotiation of claims in bankruptcy may involve both present
owners, where the United States may have an administrative coses
claim, and other parties such as past owners or generators,
where the United States may be an unsecured potential creditor.
The Regions should avoid becoming involved in bankruptcy proceed: nc
if there is little likelihood of recovery, and should recognize
the risks involved in negotiating without creditor status. It
may be appropriate to request OOJ filing of a proof of claim.
Further guidance is provided in the Memorandum from Courtney
?r*.re entitled " Information Regarding CERCLA Enforcement Against
Bankrupt Parties," dated Ma/ 24, 1934.
In negotiating with de> minimis parties, the Regions should
limit their efforts to low volume, low toxicity disposers who
would not normally make a significant contribution to the costs
of cleanup in any case.
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In considering settlement offers from de mimmis contributors,
the Region should normally focus on achieving cash settlements.
Regions should generally not enter into negotiations for full
administrative or judicial settlements with releases, contribution
protection, or other protective clauses. Substantial resources
should not be invested in negotiation* with djs niniais contributors,
in light of the limited costs that may be recovered, the time
needed to prepare the necessary legal documents, the need for
Headquarters review, potential res judicata effects, and other
effects that de minimis settlements may have on the nature of
the case remaining to the Government.
Partial settlements may also be considered in situations
where the unwillingness of a relatively small group of parties
to settle prevents the development of a proposal for a substantial
portion of costs or the remedy. Proposals for settlement in
these circumstances should be assessed under the criteria set
forth in section IV.
Earlier versions of this policy included a threshold for
negotiations, which provided that negotiations should not be
commenced unless an offer was made to settle for at least 30%
of the costs of cleanup, or of the remedial action. This
threshold has been eliminated from the final version of this
policy. It must be emphasized that elimination of this threshold
does not mean that the Agency is therefore more willing to
accept offers for partial settlement. The objective of the
Agency is still to obtain complete cleanup by PRPs, or 100% of
the costs of cleanup
III. Release of Information
The Agency will release information concerning the site
to PRPs to facilitate discussions for settlement among PRPs.
This information will include:
- identity of notice letter recipients;
- volume and nature of wastes to the extent identified as
sent to the site;
- ranking by volume of material sent to the site, if available
In determining the type of information to be released,
tr.e Region should co^si^er tf^e possible impacts on any potential
litigation. The Regions should take steps to assure protect:::-
of confidential and deliberative materials. The' Agency will
generally not release actual evidentiary material. The Region
should state on each released summary that it is preliminary,
that it was furnished in the course of compromise negotiations
(Fed. Rules of Evidence 408), and that it is not binding on
the Federal Government.
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This information release should be preceded by and combi
with a vigorous program for collecting information from
parties. It remains standard practice for the Agency to use
the information gathering authorities of RCRA and CERCLA with
respect to all PRPs at a site. This information release should
generally be conditioned on a reciprocal release of information
by PRPs. The information request need not be simultaneous, but
EPA should receive the information within a reasonable time.
IV . Settlement Criteria
The objective of negotiations is to collect 100% of cleanup
costs or complete cleanup from responsible parties. The Agency
recognizes that, in narrowly limited circumstances, exceptions
to this goal may be appropriate, and has established criteria
for determining where such exceptions are allowed. Although
the Agency will consider offers of less than 100% in accordance
with this policy, it will do so in light of the Agency's position,
reinforced by recent court decisions, that PRP liability is
strict, joint and several unless it can be shown by the PRPs
that injury at a site is clearly divisible.
Based on a full evaluation of the facts and a comprehensive
analysis of all of the listed criteria, the Agency may consider
accepting offers of less than 100 percent. Rapid and effective
settlement depends on a thorough evaluation, and an aggressive
information collection program is necessary to prepare effective
evaluations. Proposals for less than total settlement should
be assessed using the criteria identified below.
1 . Volume of wastes contributed to site by each PRP
Information concerning the volume of wastes contributed
to the site by PRPs should b« collected, if available, and
evaluated in each case. The volume of wastes is not the only
criterion to be considered, nor may it be the most important.
A small quantity of waste may cost proportionately more to
contain or remove than a larger quantity of a different waste.
However, the volume of waste may contribute significantly and
directly to the distribution of contamination on the surface
and subsurface (including groundwater) , and to the complexity
of removal of the contamination. In addition, if the properties
of all wastes at the site are relatively equal, the volume of
wastes rmt riUuted by the PRPs provides a convenient, easily
applied criterion for measuring whether a ?R?"s settlement
offer may be reasonable.
This does not mean, however, that PRPs will be required to
pay only their proportionate share based on volume of contribution
of wastes to the site. At many sites* there will be wastes
for which PRPs cannot be identified. If identified, PRPs may
be unable to provide funds for cleanup. Private party funding
for cleanup of those wastes would, therefore, not be available
if volumetric contribution were the only criteria.
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Therefore, to achieve Che Agency's goal of obtaining loo
percent of cleanup or the cose of cleanup, it will be necessary
in many cases to require a settlement contribution greater than
the percentage of wastes contributed by each PR? to the site.
These costs can be obtained through the application of the theory
at joint and several liability where th« harm is indivisible,
and through application of these criteria in evaluating settlement
proposals.
2. Nature of the wastes contributed
The human, animal and environmental toxicity of the hazardous
substances contributed by the PRPs, its mobility, persistence
and other properties are important factors to consider. As
noted above/ a small amount of wastes, or a highly mobile waste,
may cost more to clean up, dispose, or treat than less toxic or
relatively immobile wastes. In addition, any disproportionate
adverse effects on the environment by the presence of wastes
contributed by those PRPs should be considered.
If a waste contributed by one or more of the parties offering
a settlement disproportionately increases the costs of cleanup
at the site, it may be appropriate for parties contributing such
waste to bear a larger percentage of cleanup costs than would be
the case by using solely a volumetric basis.
3. Strength of evidence tracing the wastes at the site to the
settling parties
The quality and quantity of the Government's evidence
connecting PRPs to the wastes at the site obviously affects
the settlement value of the Government's case. The Government
must show, by a preponderance of the evidence, that the PRPs
are connected with the wastes in one or more of the ways provided
in Section 107 of CERCLA. Therefore, if the Government's
evidence against a particular PRP is weak, we should weigh
that weakness in evaluating a settlement offer from that PRP.
On the other hand, where indivisible harm is shown to
exist, under the theory of joint and several liability the
Government is in a position to collect 100 I of the cost
of cleanup from all parties who have contributed to a site.
Therefore, where the quality and quantity of the Government's
evidence appears to be strong for establishing the PRP's
liability, -he Government should rely on the strength of its
evidence and not decrease the settlement value of its case.
Discharging such PRPs from liability in a partial settlement
without obtaining a substantial contribution may leave the
Government with non-settling parties whose involvement at the
site may be more tenuous.
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In any evaluation of a settlement offer, the Agency
should weigh the amount of information exchange thac has
occurred before the settlement offer. The more the Government
knows about the evidence it has to connect the settling parties
to the site, the better this evaluation will be. The information
collection provisions of RCRA and/or CERCLA should be used to
develop evidence prior to preparation of the evaluation.
4.
Ability of the settling parties to pay
Ability to pay is not a defense to an action by the Government
Nevertheless, the evaluation of a settlement proposal should
discuss the financial condition of that party, and the practical
results of pursuing a party for more than the Government can
hope to actually recover. In cost recovery actions it will be
difficult to negotiate a settlement for more than a party's
assets. The Region should also consider allowing the party to
reimburse the Fund in reasonable installments over a period of
time, if the party is unable to pay in a lump sura, and install-
ment payments would benefit the Government. A structured
settlement providing for payments over time should be at a
payment level that takes into account the party's cash flow.
An excessive amount could force a party into bankruptcy, which
will of course make collection very difficult. See the memorandum
dated August 26, 1983, entitled "Cost Recovery Actions under
Section 107 of CERCLA* for additional guidance on this subject.
5. Litigative risks in proceeding to trial
Litigative risks which might be encountered at trial and
which should weigh in consideration of any settlement offer
include traditional factors such as:
a. Admission ity of the Government's evidence
If necessary Government evidence is unlikely to be admitted
in a trial because of procedural or substantive problems in the
acquisition or creation of the evidence, this infirmity should
be considered as reducing the Government's chance of success
and, therefore, reducing the amount the Government should
expect to receive in a settlement.
b. Adequacy of the Government's evidence
Certain aspects of this point have already been discussed
aoove. However, it deserves mention aga:- because the
the Government's case depends on substantial quantities
of sampling, analytical and other technical data and expert
testimony. If the evidence in support of the Government's
case is incomplete or based upon controversial science, or if
the Government's evidence is otherwise unlikely to withstand
the scrutiny of a trial, the amount that the Government might
expect to receive in a settlement will be reduced.
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c. Availability of defenses
In the unlikely event that one or more of the settling parties
appears to have a defense to the Government's action under section
107(b) of CERCLA, the Government should expect to receive less in
a settlement tram that PRP. Availability of one or aora defenses
to one PRP which are not common to all PRPs in the case should
not, however, lower the expectation of what an entire offering
group should pay.
6. Public interest considerations
The purpose of site cleanup is to protect public health
and the environment. Therefore, in analyzing a settlement proposal
the timing of the cleanup and the ability of the Government to
clean up the site should be considered. For example, if the State
cannot fund its portion of a Fund-financed cleanup, a private-party
cleanup proposal may be given more favorable consideration than
one received in a case where the State can fund its portion of
cleanup costs, if necessary.
Public interest considerations also include the availability
of Federal funds for necessary cleanup, and whether privately
financed action can begin more quickly than Federally-financed
activity. Public interest concerns may be used to justify
a settlement of less than 100% only when there is a demonstrated
need for a quick remedy to protect public health or the environment.
7. Precedential value
In some cases, the factual situation may be conducive to
establishing a favorable precedent for future Government actions.
For example, strong case law can be developed in cases of first
impression. In addition, settlements in such cases tend to
become precedents in themselves, and are examined extensively by
PRPs in other cases. Settlement of such cases should always be
on terras nost favorable to the Government. Where PRPs will not
settle on such terms, and the quality and quantity of evidence
is strong, it may be in the overall interest of the Government
to try the case.
8. Value of obtaining a present sum certain
If money can be obtained now and turned over to the Fund,
where it can ear~ i-.terest until the time it is spent to clean
up a site, the net present value o£ oota in: ,-.g trie sun cffere.
in settlement now can be computed against the possibility of
obtaining a larger sum in the future. This calculation may snow
that the net present value of the sum offered in settlement is, :n
reality, higher than the amount the Government can expect to obtair
at trial. EPA has developed an economic model to assess these and
other related economic factors. More information on this nodel
can be obtained from the Director, Office of Waste Programs Enforc
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9. Inequities and aggravating factors
All analyses of settlement proposals should flag for the
decision makers any apparent inequities to the settling parties
inherent in the Government's case, any apparent inequities to
others if the settlement proposal is accepted, and any aggravating
factors. However, it must be understood that the statute
operates on the underlying principle of strict liability, and
that equitable matters are not defenses.
10. Nature of the case that remains after settlement
All settlement evaluations should address the nature of
the case that remains if the settlement is accepted. For
example, if there are no financially viable parties left to
proceed against for the balance of the cleanup after the
settlement, the settlement offer should constitute everything
the Government expects to obtain at that site. The questions
are: what does the Government gain by settling this portion
of the case? Does the settlement or its terms harm the remaining
portion of the case? Will the Government have to expend the
same amount of resources to try the remaining portion of the
case? If so, why should the settlement offer be accepted?
This analysis is extremely important and should come at
the conclusion of the evaluation.
V. Partial Cleanups
On occasion, PRPs may offer to perform or pay for one
phase of a site cleanup (such as a surface removal action) but
not commit to any other phase of the cleanup (such as ground
water treatment). In some circumstances, it may be appropriate
to enter into settlements for such partial cleanups, rather
than to resolve all issues in one settlement. For example, in
some cases it is necessary to conduct initial phases of site
cleanup in order to gather sufficient data to evaluate the
need for and type of work to be done on subsequent phases. In
such cases, offers from PRPs to conduct or pay for less than
all phases of site cleanup should be evaluated in the same
manner and by the same criteria as set forth above. Settlements
must be limited to the phase or phases of work actually to be
performed at the site. This provision does not. cover preparation
of an RI/FS, whicn is crverei £/ a separate guidance document:
Lee Thomas and Courtney Price's "Participation o: PC;*" : J11 /
Responsible Parties in RI/FS Development' (March 20, 1?34I.
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VI. Contribution Protection
Contribution among responsible parties is based on the
principle that a jointly and severally liable party who has
paid all or a portion of a judgment or settlement may be entitled
to reimbursement from other jointly or severally liable parties.
When the Agency reaches a partial settlement with son* parties,
it will frequently pursue an enforcement action against non-settling
responsible parties to recover the remaining costs of cleanup.
If such an action is undertaken, there is a possibility that
those non-settlors would in turn sue settling parties. If this
action by nonsettling parties is successful, then the settling
parties would end up paying a larger share of cleanup costs
than was determined in the Agency's settlement. This is obviously
a disincentive to settlement.
Contribution protection in a consent decree can prevent
this outcome. In a contribution protection clause, the United
States would agree to reduce its judgment against the non-settling
partiesr to the extent necessary to extinguish the settling
party's liability to the nonsettling third party.
The Agency recognizes the value of contribution protection
in limited situations in order to provide some measure of
finality to settlements. Fundamentally, we believe that settling
parties are protected from contribution actions as a matter of
law, based on the Uniform Contribution Among Tortfeasors Act.
That Act provides that, where settlements are entered into in
"good faith", the settlors are discharged fron "all liability
for contribution to any other joint tortfeasors." To the extent
that this law is adopted as the Federal rule of decision,
there will be no need for specific clauses in consent agreements
to provide contribution protection.
There has not yet been any ruling on the issue. Thus,
the Agency may still be asked to provide contribution protection
in the form of offsets and reductions in judgment. In determining
whether explicit contribution protection clauses are appropriate,
the Region should consider the following factors:
Explicit contribution protection clauses are generally not
appropriate unless liability can be clearly allocated, so
that the risk of reapportionment by a judge in any future
action would be minimal.
Inclusion should depend on case-ov-cis-e :ensiderstion of
the law wnicn is likely to be applied.
The Agency will be more willing to consider contribution
protection in settlements that provide substantially all
the costs of cleanup.
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If a proposed settlement includes a contribution protection
clause, the Region snould prepare a detailed justification
indicating why this clause is essential to attaining an adequate
settlement. The justification should include an assessment of
the prospects of litigation regarding the clause. Any proposed
settlement that contains a contribution protection clause with
a potential ambiguity will be returned for further negotiation.
Any subsequent claims by settling parties against non-settlors
must be subordinated to Agency claims against these non-settling
parties. In no event will the Agency agree- to defend on behalf
of a settlor, or to provide direct indemnification. The Governnenc
will not enter into any form of contribution protection agreement
that could require the Government to pay money to anyone.
If litigation is commenced by non-settlors against settlors,
and the Agency became involved in such litigation, the Government
would argue to the court that in adjusting equities among responsible
parties, positive consideration should be given to those who came
forward voluntarily and were a part of a group of settling PRPs.
VII. Releases from Liability
Potentially responsible parties who offer to wholly or
partially clean up a site or pay the costs of cleanup normally
wish to negotiate a release from liability or a covenant not
to sue as a part of the consideration for that cleanup or
payment. Such releases are appropriate in some circumstances.
The need for finality in settlements must be balanced against
the need to insure that PRPs remain responsible for recurring
endangennents and unknown conditions.
The Agency recognizes the current state of scientific
uncertainty concerning the impacts of hazardous substances,
our ability to detect them, and the effectiveness of remedies
at hazardous waste sites. It is possible that remedial measures
will prove inadequate and lead to imminent and substantial
endangennents, because of unknown conditions or because of
failures in design, construction or effectiveness of the remedy.
Although the Agency approves all remedial actions for sites
on the National Priorities List, releases from liability will
~-:t 2u-.rr s- ically be granted merely because the Agency has
approved tine remedy. Tne - ; 11: .-.^-. es 3 c: t*e Agency to give
expansive releases from liability is directly related to tr.-e
confidence the Agency has that the remedy will ultimately
prove effective and reliable. In general, the Regions will
have the flexibility to negotiate releases that are relatively
expansive or relatively stringent, depending on the degree of
confidence that the Agency has in the remedy.
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Releases or covenants muse also include certain reopeners
which preserve the right of the Government to seek additional
cleanup accion and recover additional costs from responsible
parties in a number of circumstances. They are also subject
to a variety of other limitations. These reopener clauses and
limitations are described below.
In addition, the Agency can address future problems at a
site by enforcement of the decree or order, rather than by
action under a particular reopener clause. Settlements will
normally specify a particular type of remedial action to be
undertaken. That remedial action will normally be selected to
achieve a certain specified level of protection of public
health and the environment. When settlements are incorporated
into consent decrees or orders, the decrees or orders should
wherever possible include performance standards that set out
these specified levels of protection. Thus, the Agency will
retain its ability to assure cleanup by taking action to enforce
these decrees or orders when remedies fail to meet the specified
standards.
It is not possible to specify a precise hierarchy of
preferred remedies. The degree of confidence in a particular
remedy must be determined on an individual basis, taking site-
specific conditions into account. In general, however, the
more effective and reliable the remedy, the more likely it is
that the Agency can negotiate a more expansive release-. For
example, if a consent decree or order commits a private party
to meeting and/or continuing to attain health based performance
standards, there can be great certainty on the part of the
Agency that an adequate level of public health protection will
be met and maintained, as long as the terms of the agreement
are met. In this type of case, it may be appropriate to negotiate
a more expansive release than, for example, cases involving
remedies that are solely technology-based.
Expansive releases may be more appropriate where the private
party remedy is a demonstrated effective alternative to land
disposal, such as incineration. Such releases are possible
whether the hazardous material is transported offsite for
treatment, or the treatment takes place on site. In either
instance, the use of treatment can result in greater certainty
that future problems will not occur.
Other remedies may be less appropriate for expansive
releases, particularly :f ~*s consent order or agreement does
not include performance standards. It may ae jpprcpriate :-
such circumstances to negotiate releases that become effective
several years after completion of the remedial action, so thac
the effectiveness and reliability of the technology can be
clearly demonstrated. The Agency anticipates that responsible
parties may be able to achieve a greater degree of certainty
in settlements when the state of scientific understanding
concerning these technical issues has advanced.
G-69
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Rega.cdless of the relative expansiveness or stringency of
che release in other respects, at a minimum settlement documents
must include reopeners allowing the Government to modify terms
and conditions of the agreement for the following types of
circumstances:
where previously unknown or undetected conditions that
arise or are discovered at the site after the time of
the agreement may present an imminent and substantial
endangerment to public health, welfare or the
environment;
where the Agency receives additional information, which
was not available at the time of the agreement, concerning
the scientific determinations on which the settlement
was premised (for example, health effects associated
with levels of exposure, toxicity of hazardous substances,
and the appropriateness of the remedial technologies
for conditions at the site) and this additional information
indicates that site conditions may present an imminent
and substantial endangerment to the public health or
welfare or the environment.
In addition, release clauses must not preclude the Government
from recovering costs incurred in responding to the types of
imminent and substantial endangerments identified above.
In extraordinary circumstances, it may be clear after
application of the settlement criteria set out in section IV
that it is in the public interest to agree to a more limited
or more expansive release not subject to the conditions outlined
above. Concurrence of the Assistant Administrators for OSWER
and OECM (and the Assistant Attorney General when the release
is given on behalf of the United States) must be obtained
before the Government's negotiating team is authorized to
negotiate regarding such a release or covenant.
The extent of releases should be the same, whether the
private parties conduct the cleanup themselves or pay for
Federal Government cleanup. When responsible parties pay for
Federal Government cleanup, the release will ordinarily not
become effective until cleanup is completed and the actual
costs of the cleanup are ascertained. Responsible parties
will thereby bear the risk of uncertainties arising during
execution of the cleanup. In limited circumstances, the
release -a/ iscrre effective upon payment for Federal Government
cleanup, if the payment incljces a carefully calculated premium
or other financial instrument that adequately insures tr.e
Federal government against these uncertainties. Finally, cr.?
Agency may be more willing to settle for less than the total
costs .of cleanup when it is not precluded by a release clause
from eventually recovering any additional costs that might
ultimately be incurred at a site.
G-70
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-17-
Release clauses are also subject to the following limitations:
* A release or covenant may be given only to the PRP providing
the consideration for the release.
The release or covenant must not cover any claims other
than those involved in the case.
The release must not address any criminal matter.
Releases for partial cleanups that do not extend to the
entire site must be limited to the work actually completed.
Federal claims for natural resource danages should not be
released without the approval of Federal trustees.
Responsible parties must release any related claims against the
United States, including the Hazardous Substances Response Fund.
Where the cleanup is to be performed by the PRPs, the release
or covenant should normally become effective only upon the
completion of the cleanup (or phase of cleanup) in a manner
satisfactory to EPA.
Release clauses should be drafted as covenants not to sue,
rather than releases from liability, where this form may be
necessary to protect the legal rights of the Federal Government.
A release or covenant not to sue terminates or seriously
impairs the Government's rights of action against PRPs. Therefore,
the document should be carefully worded so that the intent of the
parties and extent of the matters covered by the' release or covenant
are clearly stated. Any proposed settlement containing a release
with a possible ambiguity will be returned for further negotiation.
vill. Targets for Litigation
The Regions should identify particular cases for referral
in light of the following factors:
- substantial environmental problems exist;
- the Agency's case has legal merit;
- the amount of money or cleanup involved is significant;
- ~oc : legal precedent 13 possible ^ses shculi b
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-18-
The goal of the Agency is to bring enforcement action
wherever needed to assure private party cleanup or to recover
costs. The following types of cases are the highest priorities
for referrals:
- 107 actions in which all costs have been incurred;
- combined 106/107 actions in which a significant phase has
been completed, additional injunctive relief is needed and
identified, and the Fund will not be used;
- 106 actions which will not be the subject of Fund-financed
cleanup.
Referrals for injunctive relief may also be appropriate
in cases when it is possible that Fund-financed cleanup will
be undertaken. Such referrals may be needed where there are
potential statute of limitation concerns, or where the site
has been identified as enforcement-lead, and prospects for
successful litigation are good.
Regional offices should periodically reevaluate current
targets for referral to determine if they meet the guidelines
identified above.
As indicated before, under the theory of joint and several
liability the Government is not required to bring enforcement
action against all of the potentially responsible parties
involved at a site. The primary concern of the Government in
identifying targets for litigation is to bring a meritorious
case against responsible parties who have the ability to under-
take or pay for response action. The Government will determine
the targets of litigation in order to reach the largest manageable
number of parties, based on toxicity and volume, and financial
viability. Owners and operators will generally be the target
of litigation, unless bankrupt or otherwise judgment proof.
In appropriate cases, the Government will consider prosecuting
claims in bankruptcy. The Government may also select targets
for litigation for limited purposes, such as sice access.
Parties who are targeted for litigation are of course not
precluded from involving parties who have not been targeted in
developing settlement offers for consideration by the Government
In de ten in i.-.- V.-2 ar r r rr r i a -.-? targets for litigation, ts.e
Government will consider the willingness of parties to se::!-:.
as demonstrated in the negotiation stage. In identifying .2
manageable number of parties for litigation, the Agency will
consider the recalcitrance or willingness to settle of the
parties who were involved in the negotiations. The Agency
will also consider other aggravating and mitigating factors
concerning responsible party actions in identifying targets
for litigation.
G-72
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-19-
In'addition, it may se appropriate, when the Agency 1
conducting phased cleanup and has reached a- settlement :or
phase, to first sue only non-settling companies for the next-
phase, assuming that such financially viable parties are avj ; La-^ .
This approach would not preclude suit against settling parties,
but non-settlors would be sued initially.
The Agency recognizes that FederaJ. agencies may be responsible
for cleanup costs at hazardous waste sites. Accordingly, Federal
facilities will be issued notice letters and administrative orders
where appropriate. Instead of litigation, the Agency will use
the procedures established by Executive Orders 12088 and 12146
and all applicable Memoranda of Understanding to resolve issues
concerning such agency's liability. The Agency will take all
steps necessary to encourage successful negotiations.
IX. Timing of Negotiations
Under our revised policy on responsible party participation
in RI/FS, PRPs have increased opportunities for involvement in
the development of the remedial investigations and feasibility
studies which the Agency uses to identify the appropriate remedy.
In light of the fact that PRPs will have received notice
letters and the information identified in section III of this
policy, prelitigation negotiations can be conducted in an
expeditious fashion.
The Negotiations Decision Document (NDD), which follows
completion of the RI/FS, makes the preliminary identification of
the appropriate remedy for the site. Prelitigation negotiations
between the Government and the PRPs should normally not extend
for more than 60 days after approval of the NDD. If significant
progress is not made within a reasonable amount of time, the
Agency will not hesitate to abandon negotiations and proceed
immediately with administrative action or litigation. It should
be noted that these steps do not preclude further negotiations.
Extensions can be considered in complex cases where there is
no threat of seriously delaying cleanup action. Any extension of
this period must be predicated on having a good faith offer fron
the PRPs which, if successfully negotiated, will save the Governs-
substantial time and resources in attaining the cleanup objective;
X. Management and Review of Settlement Negotiations
All settlement -ccunenrs rust receive concurrence from OWPE
and QECM-Waste, and be approved by the Assistant Administrator
of OECM in accordance with delegations. The management guideli^-
discussed in Section II allows the Regions to commence negotiate
if responsible parties make an initial offer for a substantial
proportion of the cleanup costs. Before commencing negotiations
for partial settlements, the Regions should prepare a preliminary
draft evaluation of the case using the settlement criteria in
section IV of this policy. A copy of this evaluation should
be forwarded to Headquarters.
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-20-
A final detailed evaluation of settlements is required
when the Regions request Headquarters approval of these
settlements. This written evaluation should be submitted to
OECM-Waste and OWPE by the legal and technical personnel on
the case. These will normally be the Regional attorney and
technical representative.
The evaluation memorandum should indicate whether the
settlement is for 100% of the work or cleanup costs. If this
figure is less than 100%, the memorandum should include a
discussion of the advantages and disadvantages of the proposed
settlement as measured by the criteria in section IV. The
Agency expects full evaluations of each of the criteria specified
in the policy and will return inadequate evaluations.
The Regions are authorized to conclude settlements in certain
types of hazardous waste cases on their own, without prior
review by Headquarters or DOJ. Cases selected for this treatment
would normally have lower priority for litigation. Categories
of cases not subject to Headquarters review include negotiation
for cost recovery cases under 3200,000, and negotiation of
claims filed in bankruptcy. In cost recovery cases, the Regions
should pay particular attention to weighing the resources
necessary to conduct negotiations and litigation against the
amounts that may be recovered, and the prospects for recovery.
Authority to appear and try cases before the Bankruptcy
Court would not be delegated to the Regions, but would be
retained by the Department of Justice. The Department will
file cases where an acceptable negotiated settlement cannot be
reached. Copies of settlement documents for such agreements
should be provided to OWPE and OECM.
Specific details concerning these authorizations will be
addressed in delegations that will be forwarded to the Regions
under separate cover. Headquarters is conducting an evaluation
of the effectiveness of existing delegations, and is assessing
the possibility of additional delegations.
Mote on Purpose and Uses of this Memorandum
The policies and procedures set forth here, and internal
Government procedures adopted to implement these policies, are
intended as guidance to Agency and other Government employees.
They do not constitute rulemaking by the Agency, and may not be
relied ?n co create a substantive or procedural right or benefit
enforceable by any other person. The Government nay ta*e ac.;:-
that is at variance with the policies and procedures in this
memorandum.
If you have any questions or comments on this policy, or
problems that need to be addressed in further guidance to
implement this policy, please contact Gene A. Lucnro, Director
of the Office of Waste Programs Enforcement, (FTS 382-4814), or
Richard Mays, Senior Enforcement Counsel, (FTS 382-4137).
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5034
Federal Register / Vol. 50. No. 24 / Tuesday1. February 3. 1985 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[SW-FRU 2770-4]
Hazardous Waste Enforcement Policy
AGENCY: Environmental Protection
Agency.
ACTION: Request for public comment.
SUMMARY: The Agency is publishing
today its interim CERCLA settlement
policy in order to solicit public comment
on it. The policy governs private party
cleanup and contribution proposals
under the Comprehensive
Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA" or
"Superfund"). The Agency is also
publishing as an attachment a more
detailed discussion of issues raised by
this policy.
DATE: Comments must be provided on or
before April 8,1985.
FOR FURTHER INFORMATION CONTACT
Debbie Wood, U.S. Environmental
Protection Agency, Office of Waste
Programs Enforcement, WH-527, 401 M
St. SW., Washington D.C. 20460, (202)
382^829.
SUPPLEMENTARY INFORMATION: This
interim policy describes the approach
the Environmental Protection Agency is
now taking in evaluating private party
settlement proposals for cleanup of
hazardous waste sites or contribution to
funding of response action under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (" CERCLA" or "Superfund"). It
reflects our recent revaluation of
Agency settlement policies. The policy
is also generally applicable to imminent
hazard enforcement actions under
section 7003 of RCRA.
The Agency's hazardous waste
settlement policies have resulted in
numerous comprehensive private party
cleanups, and in stronger settlements
with private parties. Some potentially
responsible parties (PRPs), however.
have argued that Agency settlement
policies have fostered litigation, and
discouraged voluntary private party
cleanup actions. They have suggested a
number of changes, such as expanded
releases from liability for PRPs and
routine provision to PRPs of protection
against possible contribution actions by
non-settling parties. These suggestions
have been made with the expectation
that such changes would substantially
encourage voluntary response.
The Agency's interim policy on
CERCLA case settlement has therefore
been amended to:
Include additional incentives for
private party cleanup;
Articulate policy decisions previously
made on a case by case basis in
evaluating particular settlement
offers:
Address additional policy concerns,
including releases from liability and
contribution protection; and,
Include a statement of the general
principles governing EPA's CERCLA
enforcement program.
This policy sets forth the general
principles governing private party
settlement under CERCLA, and specific
procedures for Regions and
Headquarters to use in assessing private
party settlement proposals. It addresses
negotiations concerning conduct of or
contribution to the remedy determined
by the Agency as a result of the
remedial investigations and feasibility
studies. The following topics are
covered:
1. General principles for EPA review
of private-party cleanup proposals:
2. Management guidelines'for
negotiation;
3. Factors governing release of
information to potentially responsible
parties;
4. Criteria for assessing settlement
offers;
5. Partial cleanup proposals;
8. Contribution among responsible
parties:
7. Releases and covenants not to sue;
8.Targets for litigation;
9. Timing for negotiations;
10. Management and review of
settlement negotiations.
The policy does not explicitly address
PRP participation in the Agency's
selection of remedies for private party
cleanups. That topic was addressed in a
memorandum from Lee Thomas and
Courtney Price, entitled "Participation of
Potentially Responsible Parties in
Development of Remedial Investigations
and Feasibility Studies under CERCLA"
(March 20,1984).
The policies and procedures set forth
in the interim policy are guidance to
Agency and other government
employees. The policy sets forth
enforcement priorities and procedures,
and internal procedures which are not
appropriate or necessary subjects for
rulemaking. Thus, the policy does not
constitute rulemaking by the Agency,
and may not be relied on to create a
substantive or procedural right or
benefit enforceable by any other person.
The government may, therefore, take
action that is at variance with policies
and procedures contained in this
document.
The Agency is publishing and
soliciting comment on this interim policy
for a number of reasons. The Agency
recognizes that the public is very
concerned with hazardous waste
enforcement. We believe that this policy
will substantially benefit the public by
encouraging responsible parties to
undertake appropriate and long term
remedies through settlements. We also
believe that the policy will yield better
results if the public and potentially
responsible parties understand the
policy and our reasons for adopting it.
This policy was originally drafted in
December, 1983, has been the subject of
extensive review and evaluation by the
Agency and the Department of Justice. It
is therefore being published as interim
policy. We will reevaluate this policy in
light of our working experience with
implementing it, and the public
.comments that we receive.
The Agency statement of policy
follows. A more detailed discussion of
issues for public comment is included in
the Appendix.
Dated: January 25, 1985.
lack W. McGraw,
Acting Assistant Administrator, Office of
Solid Waste and Emergency Response.
Dated: January 28,1985.
Courtney M. Price,
Assistant Administrator, Office of
Enforcement and Compliance Monitoring,
Memorandum
December 5.1984.
Subject: Interim CERCLA Settlement
Policy
From: Lee M. Thomas, Assistant
Administrator Office of Solid Waste
and Emergency Response, Courtney
M. Price, Assistant Administrator
Office of Enforcement and
Compliance Monitoring F. Henry
Habicht, II, Assistant Attorney
General Land and Natural Resources
Division, Department of Justice
To: Regional Administrators, Regions I-
X
This memorandum sets forth the
general principles governing private
party settlements under CERCLA, and
specific procedures for the Regions and
Headquarters to use in assessing private
party settlement proposals. It addresses
the following topics:
1. general principles for EPA review of
private-party cleanup proposals;
2. management guidelines for
negotiation;
3. factors governing release of
information to potentially responsible
parties;
4. criteria for evaluating settlement
offers;
5. partial cleanup proposals;
6. contribution among responsible
parties;
G-75
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Federal Ragtete* / VoL'50. Nd. -24'/ Tuesday, February 3,-1968V
9035
7. release and convenants not to aue;
3. targets for litigation:
9. timing for negotiations:
10. management and review of
settlement negotiations.
Applicability
This memorandum incorporates the
draft Hazardous Waste Case
Settlement Policy, published in draft in
December of 1983. It is applicable not
only to multiple party cases but to all
civil hazardous waste enforcement
cases under Superfund. It is generally
applicable to imminent hazard
enforcement actions under section 7003
ofRCRA.
This policy establishes criteria for
evaluating private party settlement
proposals to conduct or contribute to the
funding of response actions, including
removal and remedial actions. It also
addresses settlement proposals to
contribute to funding after a response
action has been completed. It does not
address private-party proposals to
conduct remedial investigations and
feasibility studies. These proposals are
to be evaluated under criteria
established in the policy guidance from
Lee M. Thomas, Assistant
Administrator, Office of Solid Waste
and Emergency Response, and Courtney
Price, Assistant Administrator, Office of
Enforcement and Compliance
Monitoring entitled "Participation of
Potentially Responsible Parties in
Development of Remedial Investigations
and Feasibility Studiea under CERCLA".
(March 20,1984)
I. General Principle*
The Government's goal in
implementing CERCLA is to achieve
effective and expedited cleanup at as
many uncontrolled hazardous waste
facilities as possible. To achieve this
goal, the Agency is committed to a
strong and vigorous enforcement
program. The Agency has made major
advances in securing cleanup at some of
the nation's worst hazardous waste sites
because of its demonstrated willingness
to use the Fund and to pursue
administrative and judicial enforcement
actions. In addition, the Agency has
obtained key decisions, on such issues
as joint and several liability, which have
further advanced its enforcement
efforts.
The Agency recognizes, however, that
Fund-financed cleanups, administrative
acton and litigation will not be sufficient
to accomplish CERCLA's goals, and that
voluntary cleanups are essential to a
successful program for cleanup of the
nation's hazardous waste sites. The
Agency is therefore re-evaluating its
settlement policy, in light of three years
experience with negotiation and
litigation of hazardous waste cases, to
remove or minimize if possible the
impediments to voluntary cleanup.
As a result of this reassessment the
Agency has identified the following
general principles that govern its
Superfund enforcement program:
The goal of the Agency in
negotiating private party cleanup and in
settlement of hazardous waste cases has
been and will continue to be to obtain
complete cleanup by the responsible
parties, or collect 100% of the costs of
the cleanup action.
Negotiated private party actions are
essential to an effective program for
cleanup of the nation's hazardous waste
sites. An effective program depends on a
balanced approach relying on a mix of
Fund-financed cleanup, voluntary
agreements reached through
negotiations, and litigation. Fund-
financed cleanup and litigation under
CERCLA will not in themselves be
sufficient to assure the success of this
cleanup effort. In addition, expeditious
cleanup reached through negotiated
settlements is preferable to protracted
litigation.
A strong enforcement program is
essential to encourage voluntary action
by PRPs. Section 106 actions are
particularly valuable mechanisms for
compelling cleanups. The effectiveness
of negotiation is integrally related to the
effectiveness of enforcement and Fund-
financed cleanup. The demonstrated
willingness of the Agency to use the
Fund to clean up sites and to take
enforcement action is our most
important tool for achieving negotiated
settlements.
The liability of potentially
responsible parties is strict joint and
several, unless they can clearly
demonstrate that the harm at the site is
divisible. The recognition on the part of
responsible parties that they may be
jointly and severally liable is a valuable
impetus for these parties to reach the
agreements that are necessary for
successful negotiations. Without such an
impetus, negotiations run a risk of delay
because of disagreements over the
particulars of each responsible party's
contribution to the problems at the site.
The Agency recognizes that the
factual strengths and weaknesses of a
particular case are relevant in
evaluating settlement proposals. The
Agency also recognizes that courts may
consider differences among defendants
in allocating payments among parties
held jointly and severally liable under
CERCLA. While these are primarily the
concerns of PRPs, the Agency will also
consider a PRFs contribution to
problems at the site, including
contribution of waste, in assessing
proposals for settlement and in
identifying targets for litigation.
Section 106 of CERCLA provides
courts with jurisdiction to grant such
relief as the public interest and the
equities of the case may require. In
assessing proposals for settlement and
identifying targets for litigation, the
Agency will consider aggravating and
mitigating factors and appropriate
equitable factors.
In many circumstances, cleanups
can be started more quickly when
private parties do the work themselves.
rather than provide money to the Fund.
It is therefore, preferable for private
parties to conduct cleanups themselves.
rather than simply provide funds for the
States or Federal Government to
conduct the cleanup.
The Agency will create a climate
that is receptive to private party cleanup
proposals. To facilitate negotiations, the
Agency will make certain information
available to private parties. PRPs will
normally have an opportunity to be
involved in the studies used to
determine the appropriate extent of
remedy. The Agency will consider
settlement proposals for cleanup of 1
than 100% of cleanup activities or
cleanup coats. Finally, upon settling
cooperative parties, the government will
vigorously seek all remaining relief.
inlcuding costs, penalties and treble
damages where appropriate, from
parties whose recalcitrance made a
complete settlement impossible.
The Agency anticipates that both
the Fund and private resources may be
used at the same site in some
circumstances. When the Agency settles
for less than 100% of cleanup costs, it
can use the Fund to assure that site
cleanup will proceed expeditiously, and
then use to recover these costs from
non-settling responsible parties. Where
the Federal government accepts less
than 100% of cleanup costs and no
financially viable responsible parties
remain, Superfund monies may be used
to make up the difference.
The Agency recognizes the value of
some measure of finality in
determinations of liability and in
settlements generally. PRPs frequently
want some certainty in return for
assuming die costs of cleanup, and we
recognize that this will be a valuable
incentive for private party cleanup. PRPs
frequently seek a final determination q,
liability through contribution protectj '
releases or covenants not to sue. Th
Agency will consider releases from
liability in appropriate situations, and
WT^T
PRPs
n of^^
m
G-76
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503*
Federal Raffctec / VoL 50. No. 24 / Tuesday? Ft&niary 5. '1988 /' Notices
will also consider contribution
protection in limited circumstances. The
Agency will also take aggressive
enforcement action against those parties
whose recalcitrance prevents
settlements. In bringing cost recovery
actions, the Agency will also attempt to
raise any remaining claims under
CERCLA section 106, to the extent
practicable.
The remainder of this memorandum
sets forth specific policies for
implementing these general principles.
Section II sets forth the management
guidelines for negotiating with less than
all responsible parties for partial
settlements. This section reflects the
Agency's willingness to be flexible by
considering offers for cleanup of less
than 100% of cleanup activities or costs.
Section III sets forth guidelines on the
release of information. The Agency
recognizes that adequate information
facilities more successful negotiations.
Thus, the Agency will combine a
vigorous program for obtaining the data
and information necessary to facilitate
settlements with a program for releasing
information to facilitate communications
among responsible parties.
Sections IV and V to discuss the
criteria for evaluating partial
settlements. As noted above, in certain
circumstances the Agency will entertain
settlement offers from PRPs which
extend only to part of the site or part of
the costs of cleanup at a site. Section IV
of this memo sets forth criteria to be
used in evaluating such offers. These
criteria apply to all cases. Section V sets
forth the Agency's policy concerning
offers to perform or pay for discrete
phases of an approved cleanup.
Sections VI and VII relate to
contribution protection and releases
from liability. Where appropriate, the
Agency may consider contribution
protection and limited releases from
liability to help provide some finality to
settlements.
Section VIII sets forth criteria for
selecting enforcement cases and
identifying targets for litigation. As
discussed above, effective enforcemnt
depends on careful case selection and
the careful selection of targets for
litigation. The Agency Will apply criteria
for selection of cases to focus sufficient
resources on cases that provide the
broadest possible enforcemnt impact. In
addition, targets for litigation will be
identified in light of the willingness of
parties to perform voluntary cleanup, as
well as conventional litigation
management concerns.
Section IX sets forth the requirements
governingthe timing of negotiations and
section X the provision for Headquarters
review. These sections address the need
to provide the Region* with increased
flexibilty in negotiations and to
Headquarters review in order to
expedite site cleanup.
II. Management Guidelines for
Negotiation
As a guideline, the Agency will
negotiate only if the initial offer from
PRPs constitutes a substantial
proportion of the costs of cleanup at the
site, or a substantial portion of the
needed remedial action. Entering into
discussion for less than a substantial
proportion of cleanup costs or remedial
action needed at the site, would not be
an effective use of government
resources. No specific numerical
threshold for initiating negotiations has
been established.
In deciding whether to start
negotiations, the Regions should weight
the potential resource demands for
conducting negotiations against the
likelihood of getting 100% of costs or a
complete remedy.
Where the Region proposes to
negotiate for a partial settlement
involving less than the total costs of a
cleanup, or a complete remedy, the
Region should prepare as part of its
Case Negotiations Strategy a dreaft
evaluation of the case using the
settlement criteria identified in section
IV. The draft should discuss how each of
the factors in section IV applies to the
site in question, and explain why
negotiations for less than all of the
cleanup costs, or a partial remedy, are
appropriate. A copy of the draft should
be forwarded to Headquarters. The
Headquarters review will be used to
identify major issues of national
significance or issues that may involve
significant legal precedents.
In certain other categories of cases, it
may be appropriate for the Regions to
enter into negotiations with PRPs, even
though the offers from PRPs do not
represent a substantial portion of the
costs of cleanup. These categories of
cases include:
administrative settlements of cost
recovery actions where total cleanup
costs were less than $200,000-.
claims in bankruptcy;
administrative settlements with de
minimis contributors of wastes.
Actions subject to this exceptions are
administrative settlements of cost
recovery cases where all the work at the
site has been completed and all costs
have been incurred. The figure of
$200.000 refers to all of the costs of
cleanup. The Agency is preparing more
detailed guidance on the appropriate
form of such settlement agreements, and
the types of conditions that must be
included.
Negotiation of claims in bankruptcy
may involve both present owners, where
the United States may have an
administrative costs claim, and other
parties such as past owners or
generators, where the United States may
be an unsecured potential creditor. The
Regions should avoid becoming
involved in bankruptcy proceedings if
there is little likelihood of recovery, and
should recognize the risks involved in
negotiating without creditor status. It
may be appropriate to request DO) filing
of a proof of claim. Further guidance is
provided in the Memorandum from
Courtney Price entitled "Information
Regarding CERCLA Enforcement
Against Bankrupt Parties," dated May
24,1984.
In negotiating with de minimis parties,
the Regions should limit their efforts to
low volume, low toxicity disposers who
would not normally make a significant
contribution to the costs of cleanup in
any case.
In considering settlement offer from
de minimis contributors, the Region
should normally focus on achieving cash
settlements. Regions should generally
not enter into negotiations for full
administrative or judicial settlements
with releases, contribution protection, or
other protective clauses. Substantial
resources should not be invested in
negotiations with de minimis
contributors, in light of the limited costs
that may be recovered, the time needed
to prepare the necessary legal
documents, the need for Headquarters
review, potential res judicata effects,
and other effects that de minimis
settlements may have on the nature of
the case remaining to the Government.
Partial settlements may also be
considered in situations where the
unwillingness of a relatively small group
of parties to settle prevents the
development of a proposal for a
substantial portion of costs or the
remedy. Proposals for settlement in
these circumstances should be assessed
under the criteria set forth in section IV.
Earlier versions of this policy included
a threshold for negotiations, which
provided that negotiations should not be
commenced unless an offer was made to
settle for at least 80% of the costs of
cleanup, or of the remedial action. This
threshold has been eliminated from the
final version of this policy. It must be
emphasized that elimination of this
threshold does not mean thai Ibfl
Agency is therefore more willing to
accept offers for partial settlement. The
objective of the Agency is still to obtain
complete cleanup by PRPs. or 100% of
the costs of cleanup.
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III. Release nfInformation
The Agency will release information
concerning the site tn PRPs to facilitate
discussions fur settlement among PRPs.
This information will include:
Identity of notice letter recipients:
Volume and nature of wastes to the
extent identified as sent to the site:
Ranking by volume of material sent to
the site, if available.
In determining the type of information
to be released, the Region should
consider the possible impacts on any
potential litigation. The Regions should
take steps to assure protection of
confidential and deliverative materials.
The Agency will generally not release
actual evidentiary material. The Region
should state on each released summary
that it is preliminary, that it was
furnished in the course of compromise
negotiations (Fed. Rules of Evidence
408), and that it is not binding on the
Federal Government.
This information release should be
preceded by and combined with a
vigorous program for collecting
information from responsible parties. It
remains standard practice for the
Agency to use the information gathering
authorities of RCRA and CERCLA with
respect to all PRPs at a site. This
information release should generally be
conditioned on a reciprocal release of
information by PRPs. The information
request need not be simultaneous, but
EPA should receive the information
within a reasonable time.
IV. Settlement Criteria
The objective of negotiations is to
collect 100% of cleanup costs or
complete cleanup from responsible
parties. The Agency recognizes that, in
narrowly limited circumstances.
exceptions to this goal may be
appropriate, and has established criteria
for determining where such exceptions
are allowed. Although the Agency will
consider offers of less than 100% in
accordance with this policy, it will do so
in light of the Agency's position,
reinforced by recent court decisions,
that PRP liability is strict, joint and
several unless it can be shown by the
PRPs that injury at a site is clearly
divisible.
Based on a full evalution of the facts
and a comprehensive analysis of all of
the listed criteria, the Agency may
consider accepting offers of less than
100 percent. Rapid and effective
settlement depends on a thorough
evaluation, and an aggressive
information collection program is
necessary to prepare effective
evaluations. Proposals for less than total
settlement should he assessed using the
criteria identified below
1 Volume of Wastes Contributed to Site
by Ea<.h PRP
Information concerning the volume of
wastes contributed to the site by PRPs
should be collected, if available, and
evaluated in each case. The volume of
wastes is not the only criterion to be
considered, nor may it be the most
important. A small quantity of waste
may cost proportionately more to
contain or remove than a larger quantity
of a different waste. However, the
volume of waste may contribute
significantly and directly to the
distribution of contamination on the
surface and subsurface (including
groundwater), and to the complexity of
removal of the contamination. In
addition, if the properties of all wastes
at the site are relatively equal, the
volume of wastes contributed by the
PRPs provides a convenient, easily
applied criterion for measuring whether
a PRP's settlement offer may be
reasonable.
This does not mean, however, that
PRPs will be required to pay only their
proportionate share based on volume of
contribution of wastes to the site. At
many sites, there will be wastes for
which PRPs cannot be identified. If
identified, PRPs may be unable to
provide funds for cleanup. Private party
funding for cleanup of those wastes
would, therefore, not be available if
volumetric contribution were the only
criteria.
Therefore, to achieve the the Agency's
goal of obtaining 100 percent of cleanup
or the cost of cleanup, it will be
necessary in many cases to require a '
settlement contribution greater than the
percentage of wastes contributed by
each PRP to the site. These costs can be
obtained through the application of the
theory of joint and several liability
where the harm is indivisible, and
through application of these criteria in
evaluating settlement proposals.
2. Nature of the Wastes Contributed
The human, animal and
environmental toxicity of the hazardous
substances contributed by the PRPs, its
mobility, persistence and other
properties are important factors to
consider. As noted above, a small
amount of wastes, or a highly mobile
waste, may cost more to clean up,
dispose, or treat than less toxic or
relatively immobile wastes. In addition,
any disproportionate adverse effects on
the environment by the presence of
wastes contributed by those PRPs
should be considered.
If a waste contributed by one or mo
of the parties offering a settlement
disproportionately increases the cost
cleanup at the site, it may be
appropriate for parties contributing such
waste to bear a larger percentage of
cleanup costs than would be the case by
using solely a volumetric basis.
3. Strength of Evidence Tracing the
Wastes at the Site to the Settling Parties
The quality and quantity of the
Government's evidence connecting PRPs
to the wastes at the site obviously
affects the settlement value of the
Government's case. The Government
must show, by a preponderance of the
evidence, that the PRP's are connected
with the wastes in one or more of the
ways provided in Section 107 of
CERCLA. Therefore, if the Government's
evidence against a particular PRP is
weak, we should weigh that weakness
in evalnating a settlement offer from
that PRP.
On the other hand, where indivisible
harm is shown to exist, under the theory
of joint and several liability the
Government is in a position to collect
100% of the cost of cleanup from all
parties who have contributed to a site.
Therefore, where the quality and
quantity of the Government's evidence
appears to be strong for establishing
PRP's liability, the Government should'
rely on the strength of its evidence and
not decrease the settlement value of its
case. Discharging such PRPs from
liability in a partial settlement without
obtaining a substantial contribution may
leave the Government with non-settling
parties whose involvement at the site
may be more tenuous.
In any evaluation of a settlement
offer, the Agency should weigh the
amount of information exchange that
has occurred before the settlement offer.
The more the Government knows about
the evidence it has to connect the
settling parties to the site, the better this
evaluation will be. The information
collection provisions of RCRA and/or
CERCLA should be used to develop
evidence prior to preparation of the
evaluation. .
4. Ability of the Settling Parties To Pay
Ability to pay is not a defense to an
action by the Government. Nevertheless,
the evaluation of a settlement proposal
should discuss the financial condition of
that party, and the practical results of
pursuing a party for more than the
Government can hope to actually
recover. In cost recovery actions it will
be difficult to negotiate a settlement fo
more than a party's assets. The Region
should also consider allowing the party
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to reimburse the Fund in reasonable
.nstallments over a period of time, if the
party is unable to pay in a lump sum,
and installment payments would benefit
the Government. A structured
settlement providing for payments over
time should be at a payment level that
takes into account the parry's cash flow.
An excessive amount could force a
party into bankruptcy, which will of
course make collection very difficult.
See the memorandum dated August 28,
1983, entitled "Cost Recovery Actions
under Section 107 of CERCLA" for
additional guidance on this subject.
5. Litigative Risks in Proceeding to Trial
Litigative risks which might be
encountered at trial and which should
weigh in consideration of any settlement
offer include traditional factors such as:
a. Admissibility of the Government's
evidence
If necessary Government evidence is
unlikely to be admitted in a trial
because of procedural or substantive
problems in the acquisition or creation
of the evidence, this infirmity should be
considered as reducing the
Government's chance of success and.
therefore, reducing the amount the
Government should expect to receive in
a settlement
b. Adequacy of the Government's
vidence
Certain aspects of this point have
already been discussed above.
However, it deserves mention again
because the Government's case depends
on substantial quantities of sampling,
analytical and other technical data and
expert testimony. If the evidence in
support of the Government's case is
incomplete or based upon controversial
science, or if the Government's evidence
is otherwise unlikely to withstand the
scrutiny of a trial, the amount that the
Government might expect to receive in a
settlement will be reduced.
c. A variability of defenses
In the unlikely event that one or more
of the settling parties appears to have a
defense to the Government's action
under section 107(b) of CERCLA, the
Government should expect to receive
less in a settlement from that PRP.
Availability of one or more defenses to
one PRP which are not common to all
PRPs in the case should not, however,
lower the expectation of what an entire
offering group should pay.
6. Public Interest Considerations
The purpose of site cleanup is to
protect public health and the
i-nvironment. Therefore, in analyzing a
ettlement proposal the timing of the
leanup and the ability of the
Jovernment to clean up the site should
be considered. For example, if the State
cannot fund its portion of a Fund-
financed cleanup, a private-parry
cleanup proposal may be given more
favorable consideration than one
received in a case where the State can
fund its portion of cleanup costs, if
necessary.
Public interest considerations also
include the availability of Federal funds
for necessary cleanup, and whether
privately financed action can begin
more quickly than Federally-financed
activity. Public interest concerns may be
used to justify a settlement of less than
100% only when there is a demonstrated
need for a quick remedy to protect
public health or the environment.
7. Precedential Value-
In some cases, the factual situation
may be conducive to establishing a
favorable precedent for future
Government actions. For example.
strong case law can be developed in
cases of first impression. In addition.
settlements in such cases tend to
become precedents in themselves, and
are examined extensively by PRPs in
other cases. Settlement of such cases
should always be on terms most
favorable to the Government Where
PRPs will not settle on such terms, and
the quality and quantity of evidence is
strong, it may be in the overall interest
of the Government to try the case.
8. Value of Obtaining a Present Sum
Certain
If money can be obtained now and
turned over to the Fund, where it can
earn interest until the time it is spent to
clean up a site, the net present value of
obtaining the sum offered in settlement
now can be computed against the
possibility of obtaining a larger sum in
the future. This calculation may show
that the net present value of the sum.
offered in settlement is, in reality, higher
than the amount the Government can
expect to obtain at trial. EPA has
developed an economic model to assess
these and other related economic
factors. More information on this model
can be obtained from the Director,
Office of Waste Programs Envorcement.
9. Inequities and Aggravating Factors
All analyses of settlement proposals
should flag for the decision makers any
apparent inequities to the settling
parties inherent in the Government's
case, and apparent inequities to others if
the settlement proposal is accepted, and
any aggravating factors. However, it
must be understood that the statute
operates on the underlying principle of
strict liability, and that equitable
matters are not defenses.
10. Nature of the Case that Remains
After Settlement
All settlement evaluations should
address the nature of the case that
remains if the settlement is accepted.
For example, if there are no financially
viable parlies left to proceed against for
the balance of the cleanup after the
settlement, the settlement offer should
constitute everything the Government
expects to obtain at that site. The
questions are: What does the
Government gain by settling this portion
of the case? Does the settlement or its
terms harm the remaining portion of the
case? Will the Government have to
expend the same amount of resources to
try the remaining portion of the case? If
so. why should the settlement offer be
accepted?
This analysis is extremely important
and should come at the conclusion of
the evaluation.
V. Partial Cleanups
On occasion, PRPs may offer to
perform or pay for one phase of a site
cleanup (such as a surface removal
action) but not commit to any other
phase of the cleanup (such as ground
water treatment). In some
circumstances, it may be appropriate to
enter into settlements for such partial
cleanups, rather than to resolve all
issues in one settlement. For example, in
some cases it is necessary to conduct
initial phases of site cleanup in order to
gather sufficient data to evaluate the
need for and type of work to be done on
subsequent phases. In such cases, offers
from PRPs to conduct or pay for less
than all phases of site cleanup should be
evaluated in the same manner and by
the same criteria as set forth above.
Settlements performed at the site. This
provision does not cover preparation of
an RI/FS, which is covered by a
separate guidance document: Lee
Thomas and Courtney Price's
"Participation of Potentially Responsible
Parties in RI/FS Development" (March
20,1984).
VI. Contribution Protection
Contribution among responsible
parties is based on the principle that a
jointly and severally liable party who
has paid all or a portion of a judgment
or settlement may be entitled to
reimbursement from other jointly or
severally liable parties. When the
Agency reaches a partial settlement
with some parties, it will frequently
pursue an enforcement action against
non-settling responsible parties to
recover the remaining costs of cleanup.
If such an action is undertaken, there is
a possibility that those non-settlors
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5039
would in turn sue settling parties. If this
action by nonsettling parties is
successful, then the settling parties
would end up paying a larger share of
cleanup costs than was determined in
the Agency's settlement This is
obviously a disincentive to settlement.
Contribution protection in a consent
decree can prevent this outcome. In a
contribution protection clause, the
United States would agree to reduce its
judgment against the non-settling
parties, to the extent necessary to
extinguish the settling party's libility to
the nonsettling third party.
The Agency recognizes the value of
contribution protection in limited
situations in order to provide some
measure of finality to settlements.
Fundamentally, we believe that settling
parties are protected from contribution
actions as a matter of law, based on the
Uniform Contribution Among
Tortfeasors Act That Act provides that
where settlements are entered into in
"good faith", the settlors are discharged
from "all liability for contribution to any
other joint tortfeasora." To the extent
that this law is adopted as the Federal
rule of decision, there will be no need
for specific clauses in consent
agreements to provide contribution
protection.
There has not yet been any ruling on
the issue. Thus, the Agency may still be
asked to provide contribution protection
in the form of offsets and reductions in
judgment. In determining whether
explicit contribution protection clauses
are appropriate, the Region should
consider the following factors:
Explicit contribution protection
clauses are generally not appropriate
unless liability can be clearly allocated,
so that the risk of reapportionment by a
judge in any future action would be
minimal.
Inclusion should depend on case-
by-case consideration of the law which
is likely to be applied.
The Agency will be more willing to
consider contribution protection in
settlements that provide substantially
all the costs of cleanup.
If a proposed settlement includes a
contribution protection clause, the
Region should prepare a detailed
justification indicating why this clause
is essential to attaining an adequate
settlement. The justification should
include an assessment of the prospects
of litigation regarding the clause. Any
proposed settlement that contains a
contribution protection clause with a
potential ambiguity will be returned for
further negotiation.
Any subsequent claims by settling
parties against non-settlors must be
subordinated to Agency claims against
these non-settling parties. In no event
will the Agency agree to defend on
behalf of a settlor, or to provide direct
indemnification. The Government will
not enter into any form of contribution
protection agreement that could requrie
the Government to pay money to
anyone.
If litigation is commenced by non-
settlors against settlors, and the Agency
became involved in such litigation, the
Government would argue to the court
that in adjusting equities among
responsible parties; positive
consideration should be given to those
who came forward voluntarily and were
a part of a group of settling PRPs.
VII. Releases from Liability
Potentially responsible parties who
offer to wholly or partially dean up a
site or pay the costs of cleanup normally
wish to negotiate a release from liability
or a covenant not to sue as a part of the
consideration for that cleanup or
payment Such releases are appropriate
in some circumstances. The need for
finality in settlements must be balanced
against the need to insure that PRPs
remain responsible for recurring
endangerments and unknown
conditions.
The Agency recognizes the current
state of scientific uncertainty concerning
the impacts of hazardous substances.
our ability to detect them, and the
effectiveness of remedies at hazardous
waste sites. It is possible that remedial
measures will prove inadequate and
lead to imminent and substantial
endangerments. because of unknown
conditions or because of failures in
design, construction or effectiveness of
the remedy.
Although the Agency approves all
remedial actions for sites on the
National Priorities List releases from
liability will not automatically be
granted merely because the Agency has
approved the remedy. The willingness of
the Agency to give expansive releases
from liability is directly related to the
confidence that Agency has that the
remedy will ultimately prove effective
and reliable. In general, the Regions will
have the flexibility to negotiate releases
that are relatively expansive or
relatively stringent depending on the
degree of confidence that the Agency
has in the remedy.
Releases or covenants must also
include certain reopeners which
preserve the right of the Government to
seek additional cleanup action and
recover additional costs from
responsible parties in a number of
circumstances. They are also subject to
a variety of other limitations. These
us ar^^l
reopener clauses and limitations i
described below.
In addition, the the Agency can
address future problems at a site by
enforcement of the decree or order,
rather than by action under a particular
reopener clause. Settlements will
normally specify a particular type of
remedial action to be undertaken. That
remedial action will normally be
selected to achieve a certain specified
level of protection of public health and
the environment. When settlements are
incorporated into consent decrees or
orders, the decrees or orders should
wherever possible include performance
standards that set out these specified
levels of protection. Thus, the Agency
will retain its ability to assure cleanup
by taking action to enforce these
decrees or orders when remedies fail to
meet the specified standards.
It is not possible to specify a precise
hierarchy of preferred remedies. The
degree of confidence in a particular
remedy must be determined on an
individual basis, taking site-specific
conditions into account. In general,
however, the more effective and reliable
the remedy, the more likely it is that the
Agency can negotiate a more expansivjj
release. For example, if a consent da
or order commits a private party to f
meeting and/or continuing to attain'
health based performance standards,
there can be great certainty on the part
of the Agency that an adequate level of
public health protection will be met and
maintained, as long as the terms of the
agreement are met. In this type of case,
it may be appropriate to negotiate a
more expansive release than, for
example, cases involving remedies that
are solely technology-based.
Expansive releases may be more
appropriate where the private party
remedy is a demonstrated effective
alternative to land disposal, such as
incineration. Such releases are possible
whether the hazardous material is
transported offsite for treatment or the
treatment takes place on site. In either
instance, the use of treatment can result
in greater certainty that future problems
will not occur.
Other remedies may be less
appropriate for expansive releases,
particularly if the consent order or
agreement does not include performance
standards. It may be appropriate in such
circumstances to negotiate releases that
become effective several years after
completion of the remedial action, so
that the effectiveness and reliability j
the technology can be clearly
demonstrated. The Agency anticipal
that responsible parties may be able t3
achieve a greater degree of certainty in
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ttlements when the state of scientific
demanding concerning these
hnical issues has advanced.
Regardless of the relative
expansiveness or stringency of the
release in other respects, at a minimum
settlement documents must include
reopeners allowing the Government to
modify terms and conditions of the
agreement for the following types of
circumstances:
Where previously unknown or
undetected conditions that arise or are
discovered at the site after the time of
the agreement may present an imminent
and substantial endangerment to public
health, welfare of the environment;
Where the Agency receives
additional information, which was not
available at the time of the agreement,
concerning the scientific determinations
on which the settlement was premised
(for example, health effects associated
with levels of exposure, toxicity of
hazardous substances, and the
appropriateness of the remedial
technologies for conditions at the site)
and this additional information
indicates that site conditions may
present an imminent and substantial
endangerment to the public health or
welfare or the environment.
In addition, release clauses must not
Delude the Government from
overing costs incurred in responding
the type of imminent and substantial
endangerments identified above.
In extraordinary circumstances, it
may be clear after application of the
settlement criteria set out in section IV
that it is in the public interest to agree to
a more limited or more expansive
release not subject to the conditions
outlined above. Concurrence of the
Assistant Administrators for OSWER
and OECM (and the Assistant Attorney
General when the release is given on
behalf of the United States) must be
obtained before the Government's
negotiating team is authorized to
negotiate regarding such a release or
covenant.
The extent of releases should be the
same, whether the private parties
conduct the cleanup themselves or pay
for Federal Government cleanup. When
responsible parties pay for Federal
Government cleanup, the release will
ordinarily not become effective until
cleanup is completed and the actual
costs of the cleanup are ascertained.
Responsible parties will thereby bear
the risk of uncertainties arising during
execution of the cleanup. In limited
circumstances, the release may become
effective upon payment for Federal
vernment cleanup, if the payment
:ludes a carefully calculated premium
other financial instrument that
adequately insures the Federal
Government against these uncertainties.
Finally, the Agency may be more willing
to settle for less than the total costs of
cleanup when it is not precluded by a
release clause from eventually
recovering any additional costs that
might ultimately be incurred at a site.
Release clauses are also subject to the
following limitations:
A release or covenant may be given
only to the PRP providing the
consideration for the release.
The release or covenant must not
cover any claims other than those
involved in the case.
The release must not address any
criminal matter.
Releases for partial cleanups that
do not extend to the entire site must be
limited to the work actually completed.
Federal claims for natural resource
damages should not be released without
the approval of Federal trustees.
Responsible parties must release
any related claims against the United
States, including the Hazardous
Substances Response Fund.
Where the cleanup is to be
performed by the PRPs, the release or
covenant should normally become
effective only upon the completion of
the cleanup (or phase of cleanup) in a
manner satisfactory to EPA.
Release clauses should be drafted
as covenants not to sue, rather than
releases from liability, where this form
may be necessary to protect the legal
rights of the Federal Government.
A release or covenant not to sue
terminates or seriously impairs the
Government's rights of action against
PRPs. Therefore, the document should
be carefully worded so that the intent of
the parties and extent of the matters
covered by the release or covenant are
clearly stated. Any propsed settlement
containing a release with a possible
ambiguity will be returned for further
negotiation.
VTII. Targets for Litigation
The Regions should identify particular
cases for referral in light of the following
factors:
Substantial environmental problems
exist;
The Agency's case has legal merit;
The amount of money or cleanup
involved is significant:
Good legal precedent is possible
(cases should be rejected where the
potential for adverse precedent is
substantial):
The evidence is strong, well
developed, or capable of
development;
Statute of limitations problems exist;
Responsible parties are financially
viable.
The goal of the Agency is to bring
enforcement action wherever needed to
assure private party cleanup or to
recover costs. The following types of
cases are the highest priorities for
referrals:
107 actions in which all costs have
been incurred:
Combined 106/107 actions in which a
significant phase has been completed,
additional injunctive relief is needed
and identified, and the Fund will not
be used:
106 actions which will not be the
subject of Fund-financed cleanup.
Referrals for injunctive relief may also
be appropriate in cases when it is
possible that Fund-financed cleanup will
be undertaken. Such referrals may be
needed where there are potential statute
of limitation concerns, or where the site
has been identified as enforcement-lead,
and prospects for successful litigation
are good.
Regional offices should periodically
reevaluate current targets for referral to
determine if they meet the guidelines
identified above.
As indicated before, under the theory
of joint and several liability the
Government is not required to bring
enforcement action against all of the
potentially responsible parties involved
at a site. The primary concern of the
Government in identifying targets for
litigation is to bring a meritorious case
against responsible parties who have
the ability to undertake or pay for
response action. The Government will
determine the targets of litigation in
order to reach the largest manageable
number of parties, based on toxicity and
volume, and financial viability. Owners
and operators will generally be the
target of litigation, unless bankrupt or
otherwise judgment proof. In
appropriate cases, the Government will
consider prosecuting claims in
bankruptcy. The Government may also
select targets for litigation for limited
purposes, such as site access.
Parties who are targeted for litigation
are of course not precluded from
involving parties who have not been
targeted in developing settlement offers
for consideration by the Government.
In determining the appropriate targets
for litigation, the Government will
consider the willingness of parties to
settle, as demonstrated in the
negotiation stage. In identifying a
manageable number of parties for
litigation, the Agency will consider the
recalcitrance or willingness to settle of
the parties who were involved in the
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304
negotiations. The Agency will also
consider other aggravating and
mitigating factors concerning
responsible party actions in identifying
targets for litigation.
In addition, it may be appropriate,
when the Agency is conducting phased
cleanup and has reached a settlement
for one phase, to first sue only non-
settling companies for the next phase,
assuming that such financially viable
parties are available. This approach
would not preclude suit against settling
parties, but non-settlors would be sued
initially.
The Agency recognizes that Federal
agencies may be responsible for cleanup
costs at hazardous waste sites.
Accordingly, Federal facilities will be
issued notice letters and administrative
orders where appropriate. Instead of
litigation, the Agency will use the
procedures established by Executive
Orders 12088 and 12146 and all
applicable Memoranda of
Understanding to resolve issues
concerning such agency's liability. The
Agency will take all steps necessary to
encourage successful negotiations.
IX. Timing of Negotiations
Under our revised policy on
responsible party participation in RI/FS,
PRPs have increased opportunities for
involvement in the development of the
remedial investigations and feasibility
studies which the Agency uses to
identify the appropriate remedy. In light
of the fact that PRPs will have received
notice letters and the information
identified in section III of this policy,
prelitigation negotiations can be
conducted in an expeditious fashion.
The Negotiations Decision Document
(NDD), which follows completion of the
RI/FS. makes the preliminary
identification of the appropriate remedy
for the site. Prelitigation negotiations
between the Government and the PRPs
should normally not extend for more
than 60 days after approval of the NDD.
If significant progress is not made within
a reasonable amount of time, the
Agency will not hesitate to abandon
negotiations and proceed immediately
with administrative action or litigation.
It should be noted that these steps do
not preclude further negotiations.
Extensions can be considered in
complex cases where there is no threat
of seriously delaying cleanup action.
Any extension of this period must be
predicated on having a good faith offer
from the PRPs which, if successfully
negotiated, will save the Government
substantial time and resources in
attaining the cleanup objectives.
X. Management and Review of
Settlement Negotiations
All settlement documents must
receive concurrence from OWPE and
OECM-Waste, and be approved by the
Assistant Administrator of OECM in
accordance with delegations. The
management guideline discussed in
Section II allows the Regions to
commence negotiations if responsible
parties make an initial offer for a
substantial proportion of the cleanup
costs. Before commencing negotiations
for partial settlements, the Regions
should prepare a preliminary draft
evaluation of the case using the
settlement criteria in section IV of this
policy. A copy of this evaluation shoud
be forwarded to Headquarters.
A final detailed evaluation of
settlements is required when the
Regions request Headquarters approval
of these settlements. This written
evaluation should be submitted to
OECM-Waste and OWPE by the legal
and technical personnel on the case.
These will normally be the Regional
attorney and technical representative.
The evaluation memorandum should
indicate whether the settlement is for
100% of the work or cleanup costs. If this
figure is less than 100%, the
memorandum should include a
discussion of the advantages and
disadvantages of the proposed
settlement as measured by the criteria in
section IV. The Agency expects full
evaluations of each of the criteria
specified in the policy and will return
inadequate evaluations.
The Regions are authorized to
conclude settlements in certain types of
hazardous waste cases on their own.
without prior review by Headquarters or
DO}. Cases selected for this treatment
would normally have lower priority for
litigation. Categories of cases not
subject to Headquarters review include
negotiation for cost recovery cases
under $200,000 and negotiation of claims
filed in bankruptcy. In cost recovery
cases, the Regions should pay particular
attention to weighing the resources
necessary to conduct negotiations and
litigation against the amounts that may
be recovered, and the prospects for
recovery.
Authority to appear and try cases
before the Bankruptcy Court would not
be delegated to the Regions, but would
be retained by the Department of
Justice. The Department will file cases
where an acceptable negotiated
settlement cannot be reached. Copies of
settlement documents for such
agreements should be provided ot
OWPE and OECM.
Specific details concerning these
authorizations will be addressed
delegations that will be forwarded^
Regions under separate cover.
Headquarters is conducting an
evaluation of the effectiveness of
existing delegations, and is assessing
the possibility of additional delegations.
Note on Purpose and Uses of this
Memorandum
The policies and procedures set forth
here, and internal Government
procedures adopted to implement these
policies, are intended as guidance to
Agency and other Government
employees. They do not constitute
rulemaking by the Agency, and may not
be relied on to create a substantive or
procedural right or benefit enforceable
by any other person. The Government
may take action that is at vanance with
the policies and procedures in this
memorandum.
If you have any questions or
comments on this policy, or problems
that need to be addressed in further
guidance to implement tnis policy,
please contact Gene A. Lucero, Director
of the Office of Waste Programs
Enforcement (FTS 382-4814), or Richard
Mays, Senior Enforcement Counsel (FTS
382-4137).
AppendixDisci *sion of Issues R
by Interim CERC uA Settlement
This appendix discusses in greater
detail certain issues raised by the
interim policy and identifies specific
issues for public comment. It focuses on
issues of broad public concern, rather
than issues related primarily to internal
Agency management. The section
headings of this attachment generally
parallel the specific sections of the
enforcement policy.
I. General Principles
The discussion of general principles
sets out the overall philosophy
governing the Suoerfund enforcement
program. To achieve the greatest
possible number of timely and effective
cleanup actions, the Agency must strike
a balance between two opposite
approaches. One approach emphasizes
quick resort to the Fund and
enforcement authorities, and the other
features more incentives for private
party cleanup.
We have attempted to combine
features of both these approaches into a
vigorous enforcement program that will
encourage private party cleanups. These
approaches, and their limitations, ar
descnbed in greater detail below.
Under one general approach, the'
Agency would quickly resort to either"
«
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enforcement action such ad litigation
and administrative orders, or Federal
government cleanup under the Fund.
Releases from liability and explicit
contribution protection clauses would
be strictly limited under this approach.
and the time for negotiations prior to
enforcement or Fund-financed cleanup
action would be short. The limitation of
this general approach is that EPA may
not always be able to move to clean up
enough sites, because of restrictions on
the use of the Fund and the time and
resources needed to compel cleanup
through enforcement. Furthermore,
many private parties believe that, as a
general matter, they can conduct
cleanup activities more quickly and at
less cost than the Federal government,
and have clamed that this approach may
discourage private party initiatives.
Under the other general approach, the
Agency would provide additional
incentives to encourage PRP cleanup.
For example, settlements would allow
more expansive releases from liability,
contribution protection would be
provided, and EPA would take as much
time as needed to resolve issues through
negotiations before it resorted to
enforcement action or Fund-financed
cleanup. It is possible that the Agency
would reach more negotiated
settlements under this approach. One
limitation of this approach is that the
Agency would assume financial risks if
it becomes clear in light of changed
circumstances or improved knowledge
of site problems that additional cleanup
action is needed: expansive releases
from liability would preclude the
Agency from pursuing responsible
parties for additional cleanup costs.
Also, protracted negotiations would
delay cleanup of sites. Further, private
party cleanups may not increase without
an attendant aggressive enforcement
program (unilateral administrative
orders, imminent hazard enforcement
actions under CERCLA section 106, and
cost-recovery actions under section 107)
because private parties may lack an
incentive to reach negotiated
settlements.
We have attempted to strike a
balance between the two directions,
recognizing that no approach may be
completely adequate to satisfy all of
these concerns. While the Agency
remains committed to a strong and
v igorous enforcement program, it
recognizes that negotiated private party
cleanups are essential to a successful
cleanup program. The Agency will
minimize impediments to voluntary
cleanup, and take aggressive
enforcement action against those parties
whose recalcitrance prevents
settlements or makes complete
settlement impossible.
The Agency solicits comments on
whether any additional factors or
principles should be considered by the
Agency in formulating a settlement
policy.
II. Management Guidelines for
Negotiation
The previous settlement policy
included a resource management
guideline for use after the Agency has
evaluated the case using the settlement
criteria and determined that the
prospects for successfully pursuing the
case were good. The guideline stated
that the Agency would generally
negotiate only if the initial offer from
PRPs was for 80 percent of the remedy
or costs of cleanup. This 80 percent
threshold was established so that the
Regional offices would spend their time
and resources negotiating cases where
settlement on acceptable terms seems
more likely. EPA considered retaining
that guideline in this interim policy.
The threshold was not intended to be
an absolute barrier to offers for less
than 80 percent, and the earliest drafts
of this interim policy indicated that
offers for less than that amount might be
considered. However, some PRPs may
have perceived the guideline as an
absolute barrier, and been reluctant to
approach the Agency with valid
settlement offers because those offers
were not for 80 percent of the remedy or
costs of the cleanup. Minor volumetric
contributors of wastes to the site would
generally be unwilling to offer 80
percent. It ia also possible that a few
recalcitrant parties who refused to join a
group settlement offer could prevent the
others from coming up with an 80
percent offer.
The Agency considered a variety of
approaches for providing potentially
responsible parties with a greater
opportunity and incentive for becoming
involved in negotiations. They include:
Eliminating the threshold;
Eliminating the threshold for certain
categories of PRPs or cases;
Lowering the threshold;
Allowing deviation from the
threshold when the Region has prepared
an evaluation of the case, and
Headquarters has reviewed this
evaluation; and
Allowing negotiations with
individual parties, as long as the Region
ultimately recovers a certain percentage
of the costs of cleanup.
The approach in the interim policy
combines elements of a number of these
options. It eliminates the 80 percent
threshold. Instead, the interim policy
states that the Agency will negotiate
only if the initial offer from PRPs
constitutes a substantial proportion of
the remedy or cleanup costs. Regions
are asked to weigh the potential
resource demands for conducting
negotiations against the likelihood of
getting 100 percent of costs or a
complete remedy. Thus, while an offer
of 80 percent is not required to initiate
negotiations, there will be cases where
offers of 80 percent will de deemed
inadequate. Offers to negotiate for a
partial settlement or cleanup should be
evaluated by Regions using the criteria
set forth in section IV of the policy. A
copy of these draft evaluations are to be
forwarded to Headquarters for review.
The policy announced today also
recognizes that in certain limited
categories of cases, it may be
appropriate for Regions to enter into
negotiations even though offers do not
represent a substantial portion of costs.
These categories include administrative
settlements of cost recovery actions
where total cleanup costs were less than
$200,000, claims in bankruptcy, and
administrative settlements with de
minimi's contributors of wastes. The
term "de minimis" does not include
parties who deposited any significant
amount or type of waste at a site.
The approach of deleting the resource
management guideline should provide a
greater incentive for individual or small
groups of PRPs to negotiate settlements.
It should also give the Regions and the
litigation team more flexibility in
negotiating and settling with low volume
PRPs. In addition, the 80 percent figure
will not serve as a point of departure for
negotiations, limiting the initial offers to
that stated threshold percentage. PRPs
should find it easier to develop
proposals for settlement, and the ability
of recalcitrants to obstruct a settlement
will be reduced. However, since the
objective of the Agency is still to obtain
complete cleanup by PRPs, or 100
percent of the costs of cleanup, there
will be cases where offers of 80 percent
will be deemed inadequate. If a partial
settlement offer is accepted, the Agency
is committed to vigorous pursuit on non-
settlors.
This approach, however, may increase
the likelihood that Regional resources
will be consumed by fragmented
multiple negotiations with a wide
variety of parties. The more intensive
and time-consuming negotiations that
may be necessary might ultimately limit
the number of settlements that can be
reached. It also places a higher burden
on the Regions and Headquarters to
assess the adequacy of settlement
proposals in light of the settlement
criteria, and to determine that sufficient
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504
parties are left to provide the remaining
cleanup costs.
The Agency solicits comment on
whether substantial settlements will be
possible without a threshold and
whether eliminating the threshold will
encourage a greater number of
settlements for either a substantial
portion of the costs of cleanup or of the
cleanup itself. The Agency also solicits
comment on how the term "de minimi's
contributor" should be defined.
III. Release of Information
The Agency will release information
concerning the site to facilitate
discussions of settlement among PRPs.
This information will include:
Identity of notice letter recipients;
Volume and nature of wastes
identified as delivered to the site;
Any ranking by volume of material
sent to the site.
Release of some of this material to PRPs
is discretionary under the Freedom of
Information Act (FOIA).
Under the policy announced today,
information released to PRPs will
generally be conditioned on a reciprocal
release of information by PRPs. The
Agency solicits comment on whether
information exempt from disclosure
under FOIA should be made available to
PRPs on a discretionary basis.
IV. Settlement Criteria
As discussed above, there will no
longer be any specific threshold for
considering settlement offers from PRPs.
Rather, settlement offers will be
evaluated using the criteria in this
seciton. Evaluations under these criteria
should result in a full evaluation of the
offer and will promote consistency
among Regional offices. These criteria
will apply in evaluation offers from
PRPs (1) to clean up the site, (2) to pay
for clean up of the site, and (3) in cost
recovery actions. These criteria include:
Volume of waste contributed by
each PRP;
Nature of waste contributed;
Strength of evidence tracing waste
to settling parties;
Ability of settling parties to pay;
Utigative risks in proceeding to
trial:
Public interest considerations;
Precedential value;
Value of obtaining a present sum
certain;
Inequities and aggravating factors;
Nature of case that remains after
settlement.
Many of these criteria are typical for
assessing offers to settle any type of
litigation. Although the Agency will
consider offers of less than 100 percent
in accordance with this policy, it will do
so in light of the Agency's position that
PRP liability is strict, joint and several
unless it can be shown by PRPs that
injury at a site is clearly divisible. EPA
solicits comment on the need, if any, for
additional cntena.
V. Partial Cleanups
Under the interim policy, EPA will
now, on occasion, consider PRP offers to
perform or pay for one phase of a site
cleanup. The interim policy discusses
the circumstances in which it may be
appropriate to enter into settlements for
such partial cleanups. ESA solicits
comments on these arrangements.
VI. Contribution Protection
Contribution among responsible
parties is based on the principle that,
where liability is joint and several, a
party who has paid more than his
proportional share of a judgment or
settlement is entitled to reimbursement
from other liable parties. When the
Agency reaches a partial settlement
with some parties, it will frequently
pursue an enforcement action against
non-settling responsible parties to
recover the remaining costs of cleanup.
If such as action is undertaken, there is
a possibility that those non-settlors
would in turn sue settling parties,
arguing that the settlors are liable to*
them for contribution. If this action by
non-settling parties is successful,
settling parties could end up paying a
larger share of cleanup costs than was
determined in the Agency's settlement.
A contribution protection clause in a
consent decree is one method to prevent
this outcome. While maintaining the
right to go against non-settlors for all
remaining relief, the United States could
agree to reduce its judgment against the
non-settling parties, to the extent
necessary to extinguish the settling
parry's liability to the non-settling third
party. This suggested approach ia one of
several contribution protection options
available to the government Parties
negotiating settlement have frequently
sought such protection.
The position taken by the government
in litigation involving contribution is
that the courts should adopt a Federal
rule of decision that follows section 4 of
the Uniform Contribution Among
Tortfeasors Act. Section 4 provides that
where settlements are entered into in
"good faith." the settlors are discharged
from "all liability for contribution to any
other tortfeasors." Under this
interpretation, there is no need to
provide contribution protection to PRPs
who reach good faith settlements with
the government. (We do not support
adopting section 1 of the Uniform Act as
a Federal rule of decision. Sectior
would preclude settlors from :
contribution from non-settlors unless"u.
settlors financed or performed a 100
percent cleanup at a site.)
However, since the right of
contribution under CERCLA is not yet a
settled question, the Agency can take
two approaches in response to requests
from PRPs for contribution protection:
argue that under its legal
interpretation, explicit contribution
protection clauses are unnecessary;
provide explicit contribution
protection clauses in consent decrees on
a case-by-case basis, based on the
Agency's ability to clearly apportion
liability, the percentage of the cleanup
represented by the settlement, and a
case-specific consideration of the law
which is likely to be applied.
Explicit contribution protection
clauses may serve as an incentive for
private party settlement, because PRPs
may be more confident with a
settlement which includes an explicit
contribution protection clause as part of
an agreement. It is consistent with our
position on joint and several liability
and our support for a uniform Federal
rule of decision in this area. However^
explicit contribution protection claij
have several limitations. For examp
the Agency may become vulnerable^
part of the cleanup costs that would
otherwise be bome by responsible
parties. In addition, the drafting
problems involved with such clauses are
complex. Finally, such clauses may
embroil the Federal government in
complex litigation rather than resulting
in final settlements.
In the interim policy published today.
the Agency has authorized a very
limited use of contribution protection
clauses. The Agency is soliciting public
comment on whether the interim policy
provides for contribution protection in
the proper circumstances.
VII. Releases From Liability
Potentially responsible parties have
frequently sought total releases from
past and future liability as a condition of
settlement. The Agency has generally
been reluctant to grant such total
releases because they impair the
Agency's ability to assure cleanup in
light of changed conditions or new
information concerning a site.
We recognize the current state of
scientific uncertainty concerning the
impacts of hazardous substances, our
ability to detect them, and the
effectiveness of remedies at hazardc
waste sites. It would be inapproprial
for the Agency to assume the
responsibility for cleanup if previously
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or undetected condition* arise
r are dissevered after settlement, or tf
new information indicates there may be
an imminent and substantial
endangerment to public health or
welfare or the environment
Three broad approaches for
reconciling tha concerns of the Agency
and of PRPs are to:
authorize releases for remedial
actions taken pursuant to EPA-approved
RI/FS and design:
authorize total releases for remedial
actions taken pursuant to EPA-approved
RI/FS and design, but include a
reopener clause allowing the Agency to
seek additional cleanup action or
cleanup costs for unknown conditions
that indicate possible imminent and
substantial endangennents;
allow very limited releases with
reopener clauses that not only cover
imminent and substantial
endangerments, but require private
parties to respond to all other releases
or threats of release from the site.
The guidelines in this policy take the
second approach. We recognize that an
expansive release policy would be an
incentive for private party cleanup, but
its value as an incentive must be
weighed against the scientific
.certainties surrounding the nature of
xposure to hazardous substances, their
degree of toxicity, and the effectiveness
of remedies.
Generally, the expansiveness of a
release will depend on the degree of
confidence that the Agency has in a
remedy. It may be appropriate to
negotiate a more expansive release
where responsible parties consent to
meeting and continuing to attain health
based performance standards. In
addition, the Agency is considering
allowing more expansive releases where
the private party remedy is a
demonstrated effective alternative to
land disposal, such as incineration.
Under the second approach, designed
for remedial actions. PRPs will be
required to assume risks of Imminent
and substantial endangerments
attributable to problems not known by
the Agency at the time the remedy was
selected. In return. EPA will be
responsible for responding to future
releases of contaminants that do not rise
to the level of an imminent and
substantial endangerment (assuming1
that if PRPs conduct the remedial
action, the approved remedy is
maintained as required].
Releases will be of a similar scope,
whether activities will be conducted by
EPA or by private parties. Any release
policy that allowed more extensive
releases when the Agency conducted
the cleanup actions than when private
parties conducted the actions would
discourage private party cleanup, or. at
a minimum, encourage private* parties to
pay for government cleanups rather than
conduct the remedial action themselves.
Private party conduct of the remedial
action ia preferable because it is likely
to occur sooner than Agency cleanup,
and the use of private money frees the
government to use the Fund for other
sites with no identified PRPs:
The Agency is also considering
whether a more expansive release may
be allowed where the PRPs hire an
approved contractor to perform the
cleanup, and the PRPs' performance is
secured by a satisfactory premium
payment or surety bond in an amount
well in excess of the estimated cost of
the work. The term "premium payment"
refers to risk apportionment device
under which the risk of an ineffective
remedy would be mitigated by a cash
payment in excess of cleanup costs, or
another financial assurance mechanism.
The Agency solicits comments on the
interim release policy, including the
circumstances under which releases
should be granted, reopener conditions
that should be included, and when
releases should become effective. The
Agency also solicits comment on the
premium payment or surety bond
concept.
VHL Targets foe Litigation
The Agency is not legally required to
bring action against all potentially
responsible parties at a site. The interim
policy provides that the Agency will
continue to identify targets for litigation
on the basis of factors such as financial
viability, strength of the case, and our
ability to manage litigation. This policy
also provides an additional incentive for
voluntary cleanup by targeting
recalcitrants for litigation.
The presence of a Federal agency as a
potentially responsible party at a
hazardous waste site sometimes delays
negotiations because the position of the
Federal PRP may not be clear to
government negotiators or other PRPs-.
The interim policy provides that Federal
facilities are to be treated like other
PRPs in most respects except being
joined as a party in litigation. The
reference to administrative orders is
intended to direct the Regions to make
more aggressive use of administrative
orders in dealing with Federal facilities.
Instead of litigation, we will use the
procedures established by Executive
Orders 12088 and 12146 and appropriate
Memoranda of Understanding to resolve
issues, remaining with these facilities
after negotiation ends. EPA will
encourage Federal facilities to
participate in these negotiations.
[FR Doc. 85-2859 Filed 2-4-85; 8:45 am]
BtLLJMQ COOC MM 10 II
G-85
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TEDSTATESENV^ONMEN'AL °PO"EC"tON A3£\:v
MAR27 1985
MEMORANDUM
SUBJECT: PRP Participation in RI/FS
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
TO:
Director, Office of Emergency and Remedial Response
Region II
Director, Air and Waste Management Division
Regions III, IV, VI, VII, VIII
Director, Waste Management Division
Regions I, V
Director, Toxics and Waste Division
Region IX «
Director, Air and Waste Division
Region X
Regional Counsels, Regions I-X
It has come to my attention that there Ls confusion in
some Regions regarding private-party participation in remedial
iTrve-s-tig-ation and feasibility studies (RI/FS). General
guidance on this topic is provided in the policy dated
March 20, 1984 (attached). However, in order to resolve
that confusion, please make note of the following guidelines:
0 Responsible party searches should be completed and
notice letters sent prior to obligation of all RI/FS
targeted for initiation on the FY 85 (or FY 86)
Superfund Comprehensive Accomplishments Plan (SCAP).
8 The above requirement applies equally to fund lead
projects (both Federal and State lead), federal
enforcement lead projects and state lead enforcement
projects.
G-87
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0 Notice letters should be sent far enough in advance to
allow potentially responsible parties (PRPs) to organize
themselves for negotiations and to become familiar
with the site.
0 A reasonable opportunity should be provided through
negotiations for PRPs to undertake the RI/FS in
accordance with EPA's work plan and RI/FS guidance
under the jurisdiction of consent administrative order.
However, negotiations should not be lengthy. s
If you have any questions about these guidelines, please
contact either Barbara Elkus (382-4819) or John Cross (382-
4825) of my staff.
Attachment
cc: David Buente, DOJ
William Hedenan
Fred Stiehl
G-88
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON, O.C. 20460
*
OCT 9 IS35
OFFICE OF
SOLID WASTE AND EMERGENCY «ES
MEMORANDUM
SUBJECT: Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters, and Release of Information
FROM: Gene A. Lucero, Director /O^Uj? t\ .
Office of Waste Programs wiforcement
TO: Addressees
PURPOSE
This memorandum re-emphasizes the importance of early
identification of potentially responsible parties (PRPs) and
timely issuance of notice letters for the RI/FS. These actions
support the Agency's policy to secure cleanup by responsible
parties in lieu of Superfund use, where such cleanup can be
accomplished in a timely and effective manner. The sooner
PRPs are identified and notified about their potential responsi-
bility, the more time they have to organize themselves to
assure responsibility for the RI/FS and cleanup (See "Partici-
pation of Potentially Responsible Parties in Development of
Remedial Investigations and Feasiblity Studies Under CERCLA,"
Lee M. Thomas and Courtney M. Price, March 20, 1984).
This memo also clarifies Agency policy on release of
site-specific information to PRPs and others. It supplements
the information release section of the Interim CERCLA Settle-
ment Policy (December 5, 1984). The clarification is designed
to facilitate information exchange in order to encourage effec-
tive negotiation and coalescing by PRPs among themselves.
Effective PRP negotiations and coalescing are likely to engender
effective settlement discussions with the government.
INITIATION OF PRP SEARCHES
In an effort to expedite and streamline the RI/FS process,
you should focus attention on early identification of PRPs and
timely issuance of notice letters. As you are aware, in FY 86
you will be required to conduct PRP searches for NPL Updates
3, 4, 5, and 6. This will be reflected in your SCAP targets.
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In order to accorpl'ish this, it will be necessary to start PRP
searches concurrently with developing sites for listing. At
the latest, PRP searches should be initiated when candidate
sites are sent to HQ for NPL quality control review. You will
need to plan accordingly for this activity/ particularly in
your case budgets.
Technical assistance resources for PRP searches are avail-
able through the Techncial Enforcement Support Contracts, TES I
and TES II, and are coordinated through the case budgeting
process. Each Region will be given a line of credit to support
the costs of responsible party searches, title searches, and
financial assessments. This credit will be allocated by a
straight-forward calculation of average past costs of such
activities multiplied by the number to be done in each Region.
Because of the heavy work undertaken by TechLaw in both
the TES I and TES II contracts, the prime contractors have been
distributing new work assignments for PRP searches to other
subcontractors. This should result in more timely reports.
NOTICE LETTER ISSUANCE
Timely issuance of notice letters for the RI/FS normally
means that notice letters are issued as soon as possible after
completion of the PRP search and prior to any Federally-financed
response action. Timing of the notice letter should take into
account the number of PRPs and the complexity of the data
associating PRPs with the site. In general, notice letters
should be issued 60 days before obligation of RI/FS funds
(See "Procedures for Issuing Notice Letters," Gene A. Lucero,
October 12, 1984). PRPs should therefore have sufficient time
to organize themselves and initiate preliminary contacts and
discussions with Agency personnel. This will also avoid delay
in beginning a Fund financed RI/FS should it become necessary.
Notice letters are generally combined with information
reguests under RCRA §3007 and CERCLA §104(e) (See "Policy on
Enforcing Information Reguests in Hazardous VJaste Cases",
Courtney M. Price, September 10, 1984). Notice letters are an
important step in determining whether a PRP is willing and
financially capable of undertaking a proper response." The
NEIC Technical Information Center is a useful source for assess-
ing the financial viability of PRPs that offer stock to the
public. For privately held companies, the TES contract can be
used to estimate the financial capability.
Notice letters should be issued only to parties where
sufficient evidence is available to make a preliminary determi-
nation of liability under CERCLA §107. Where doubt exists as
to whether available information supports notice letter
issuance, information reguests should be sent prior to notice
letters.
G-90
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In the past, notice letters were sent to PRPs who may or
may not have been liable under CERCLA. This may be avoided by
issuing notice letters to parties where sufficient evidence is
available to make a preliminary determination of liability
under CERCLA §107. For example/ parties known to have arranged
for disposal of material which is not known to contain a hazard-
ous substance should not receive a notice letter. The Regions
should be particularly aware of the adequacy and completeness
of the PRP searches. This will mean expending resources on
the quality review of contractors' work. I'm sure this will
save critical resources at a later time in the enforcement
process.
In addition, it is imperative that copies of notice letters
be sent to Headquarters for purposes of tracking and responding
to information requests. Along with other reporting require-
ments/ each Region will be responsible for sending copies of
notice letters quarterly.
RELEASE OF SITE-SPECIFIC INFORMATION
It is important to conduct PRP searches, issue notice
letters and collect information as soon as possible/ not only
to expedite the RI/FS process, but to ensure'that certain
site-specific information is available for use by PRPs. Avail-
ability of this information to PRPs will help PRPs organize
and negotiate among themselves.
As stated in the Interim CERCLA Settlement Policy, EPA
will release certain site-specific information to PRPs in
order to facilitate settlement discussions. This information
includes:
0 Identity of notice letter recipients;
0 Volume and nature of wastes to the extent identified
as sent to the site ("waste-in" list); and
0 Ranking by volume of material sent to the site, if
available
There are, however, certain limitations with regard to the
information outlined above. For example/ summary conclusions
about the volume and nature of waste sent to a site/ including
a volumetric ranking should be provided to the extent that
such information exists. Volumetric rankings should be developed
when the Region determines that the rankings will be of signifi-
cant benefit to the Agency and responsible parties in facili-
tating settlement or cleanup. Moreover, due to their preliminary
and summary nature, EPA will not expend resources to explain
or defend any list or ranking. Lists or rankings released to
PRPs and others should always contain appropriate disclaimers.
G-91
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The settlement policy states that release of infornation
to PRPs should generally be conditioned on a reciprocal release
of information by ERPs. The reciprocal release policy does not
apply to the release to PRPs of the names of other notice
recipients on a site/ or to waste-in lists and volumetric
ings. Release of any additional information, however, should
be conditioned on a reciprocal release of information by PRPs.
In determining the type of additional information to be released,
Regions should consider the possible impact on any potential
litigation.
Again, it is important to conduct PRP searches, issue
notice letters, and collect information as soon as possible so
that the information discussed here is available for use.
Waste-in lists and volumetric rankings should be developed as
soon as possible after completion of PRP searches. This infor-
mation should be provided with notice letters, if available.
Such information may also be released in advance of notice
letters upon request when the Region determines it will facili-
tate settlement.
The names of notice letter recipients are available to the
public in response to requests under the Freedom of Informa-
tion Act (FOIA) (See "Releasing Identities of Potentially
Responsible Parties in Response to FOIA Requests," January 26,
1984). The names may also be released at the Agency's initia-
tive without a FOIA request. Now, to the extent the information
exists, waste-in lists and volumetric rankings will also be
available to the public under FOIA and at the Agency's discre-
tion. Thus, requests for information on notice letter
recipients and for waste-in lists or volumetric rankings should
be handled consistently whether the requests are made by PRPs
or the general public.
For further information on topics discussed in this memo,
please contact Linda Southerland at FTS 382-2035.
Addressees:
Director, Office of Emergency and Remedial Response
Region II
Director, Air and Waste Management Division
Regions III, IV, VI, VII, VIII
Director, Waste Management Division
Regions I, V
Director, Toxics and Waste Division
Region IX
Director, Air and Waste Division
Region X
Regional Counsels, Regions I-X
G-92
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC 2 3
OPFICE Of
SOLID WASTE AND EMERGEN
MEMORANDUM
SUBJECT: Policy for Enforcement Actions Against Transporters
Under CERCLA
FROM: Gene A. Lucero, Director
Office of Waste Programs Enforcement
Frederick F. Stiehl
Associate Enforcement: Counsel for Waste
TO: Regional Counsels
Regional Waste Management Division Directors
Background
Section 107(a)(4) of CERCLA imposes liability for response
costs on:
"any person who accepts or accepted any hazardous substances
for transport to disposal or treatment facilities or sites
selected by such person, from which there is a release, or
a threatened release which causes the incurrence of response
costs, of a hazardous substance..."
Substantial controversy has arisen over the interpretation of
this provision particularly as it relates to interstate common or
contract carriers. The Agency's practice has previously been to
issue notice letters to all transporters. In some circumstances,
civil judicial enforcement actions have named transporters as
defendants prior to a determination of whether they selected the
facility. More recently, the Agency practice has been to bring
suit only against those transporters who have selected the facility
or site.
G-93
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-2-
Transporters involved at many Superfund sites have argued
that CERCLA was intended to impart liability only when the
transporters selected the facility or site to which the hazardous
substances were delivered. Consequently, those transporters
contend that interstate common or contract carriers, who under
the authority of the Interstate Commerce Commission do not exercise
control of the destination of shipments, are excluded from the
liability provision of §107(a)(4). No judicial opinion has been
rendered to date on the interpretation of this provision.
Policy
As part of the responsible party searches, Regional staff
should gather and review all available information related to
transporters and the nature of their involvement with the facilty
or site at which the hazardous substances are located. This
review should include all of the common sources of information
such as site records and records from federal, state and local
regulatory agencies. In addition, information related to the
transporters should be obtained through §104(e) information
request letters to the owner/operators, generators and to the
transporters. Information request letters, and any subsequent
interviews, should seek documentation as to the source, volume,
nature and location of wastes transported. Regional staff should
also seek to identify through this process the role of the
transporter in the selection of the facility or site. '
Notice letters informing transporters of potential liability
under CERCLA will not be issued unless and until the information
gathering process indicates that the transporter may have selected
the site or facility to which the hazardous substances were
delivered. (However, as indicated above, information request
letters should be routinely sent to all transporters.) Issuance
of notice letters to transporters is appropriate only when
information obtained indicates that the transporter may have
selected the site or facility.
Similarly, enforcement actions (whether administrative or
judicial) would be brought under §106 or §107 only under the same
circumstances. As a matter of policy, EPA will bring action only
against transporters where information is available which indicates
that the transporter selected the site or facility. However, in
the event that information is inconclusive due to a lack of
cooperation from transporters in providing information, EPA may
bring action against any transporter to compel full response to
information requests.
G-94
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-3-
Transporter Liability Under RCRA
This policy is not intended to address the potential liability
of hazardous waste transporters under RCRA §7003. The recent
RCRA amendments explicity state that the imminent hazard provisions
of RCRA apply to past and present transporters who contributed
to the transportation of solid or hazardous waste.
For further information on this policy and its application to
particular sites, please contact Michael Kilpatrick of OWPE
(382-4835) or Heidi Hughes of OECM-Waste (382-2845).
Note on Purpose and Uses of this Memorandum
The policies and procedures set forth here, and internal
Government procedures adopted to implement these policies, are
intended as guidance to Agency and other Government employees.
They do not constitute rulemaking by the Agency, and may not be
relied on to create a substantive or procedural right or benefit
enforceable by any other person. The Government may take action
that is at variance with the policies and procedures in this
memorandum.
cc: Superfund Branch Chiefs
Superfund Enforcement Section Chiefs
David Buente, DOJ
Lisa Friedman, OGC
G-95
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SB;
'- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
MAR 2 7 1986
MEMORANDUM
SUBJECT: Potentially Responsible Party Searches
/ r \ I '
FRCM: Gene A. Lucero, Director O^1^K, L-'"'^Y ''
Office of Waste Programs Enforcement
Thomas P. Gallagher, Director ^r~J AtfjQp L ._
National Enforcement Investigations Center 7
TO: See Below
With the current initiative to step up our enforcement efforts,
along with the expected increased'efforts necessary to accomplish the
goals in the proposed CERCLX amendments, the number and depth of
Potentially Responsible Party (PRP) searches will continue to increase.
To handle this workload, we are seeking the assistance of more con-
tractors, including the OV.PE TES contractors, RBI, 8 (a) firms and small
businesses. Furthermore, for state lead enforcement cases, the states
will be expected to perform PRP searches.
In order to implement this large effort, we propose that XEIC's
evidence audit team be used to both train and audit contractors per-
forming PRP searches. In addition, this contractor would review the
responsible party search process within the Agency for both removal and
remedial sites to determine if further support services are needed.
If you have any suggestions as to how we can implement this, please
contact Mike Kosakowski in OWPE (202/382-5611) or Rob Laidlaw at :,TEIC
(FTS 776-5122). We believe that this cooperative effort will result in
timely and comprehensive PRP searches. If there are no major objections,
we will incorporate the details on how this will work into the Potentially
Responsible Party Search Manual which is currently under development bv
NEIC.
Addressees
Directors, Waste Management Division, Regions I, V, VIII
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air 5 Waste Management Division, Regions IV, VI, VII
Director, Toxic and Waste Management Division, Region IX
Director, Hazardous Waste Division, Region X
Superfund Branch Chiefs, Regions I-X
Superfund Enforcement Section Chiefs, Regions I-X
Regional Counsels, Regions I-X
TES Contract Contacts"
G-97
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cc: OIVPE Regional Coordinators
Fred Stiehl, OEC-I-Waste
Mike Kosakowski, OIVPE
Rob Laidlaw, NEIC
G-98
-------
a
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
FB I2BBT
OSWER Directive Number 9835.4
MEMORANDUM
SUBJECT: Interim Guidance: Streamlining the CEPCLA
Settlement ;}ecision Process
FROM: J. Winston Porter
Assistant Administrator
Office of Solid Waste ajid Emergency Resoonse
Thomas 1. Adams, Jr. \
Assistant Administrator E\r Enforcement
and Compliance Monitoring
TO: Regional Administrators, Regions I-X
Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
During the Administrator's Superfund I.-.olementation Meeting
of N'ovember 19-20, 1986, several concepts -^re presented for
streamlining and improving tne CERCLA settlement decision process
Those concepts addressed three major areas:
1. Negotiation Preparation;
2. Management Review of Settlement Decisions; aad
3. Deadline Management.
The purpose of this memorandum is to set forti those cor.ciots in
greater detail and to define the roles, responsibilities and
procedures necessary to implement this important initiative.
BACKGROUND
Under CERCLA, EPA's goal has been and will continue to be to
maximize the number of sites which can be cleaned up. Congress
clearly indicated their support for this goal in the Section 122
settlement procedures of the Superfund Anendments and
Reauthorization Act of 1936 (SARA). That goal recuires constant
review of old policies and development of new measures which
promote privately financed response actio-.s.
G-99
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OSWER Directive Number 9835.4
-2-
Cle*rly» one important measure to encourage settlement is
maintain aggressive use of Section 106 administrative and ?u
enforcement authorities to compel private party response (see
Porter/Mays memorandum "Use of CERCLA 5106 Judicial Authority-Short
Term Strategy", dated July 8, 1986). The Office of Solid Waste
and Emergency Response (OSWER) has recently amended asoects of
the Superfund Comprehensive Accomplishments Plan (SCAP) to offset
some of the attendant project delay due to CEPCLA Section ins
litiaation. Regions may now recuest funding for remedial desicr
(RD) for enforcement lead sites concurrent vith their referral.
This approach not only minimizes the tire -/here no site actio?
proceeds, but also puts the government in a stronger position at
trial. regions would be expected to pursue the liticaticn to
completion absent extraordinary circumstances or compellinc
public health concerns.
Concress recognized the value of enhancing tue settlement
process in enacting SAP.A. 7'r.e provisions for Section 122 are
based in large part upon EPA1? Interim CE°CLA Settlement Policy
(50 FR 503*1) and are designed to increase potentially responsible
party (PR?) participation in resonnse actions. Tue new provisions
related to special notice, information sharing and neaotiation
moratoria are particularly important. They attempt to strike a
balance between the comoetir.g -zenanas of prompting rrore settlements,
conserving limited .Government re?ources, 5?d minimizing tr.e delay
in the clean-uo crocess.
Additionally, our experience in the Last =ix years has
shown us that the way in which we manage other carts of the
settlement process can also have dramatic effects on the chances
for successful negotiations. ror example, netting deadlines tco
tightly can destroy the willincness cf ~~?s to attempt to settle.
On the other hand, prolonged and i.-.con.c I - s ive ~.e~o~ i2t io.-.s cs-,
seriously delay response actions at a site. -32sed en cur
experience, and comments from the 3-=gions and ct'~er parties
involved in tre process, the Acercy has concluded that tnere are
three areas, in addition to the matters covered cy Si?A, where
certain changes will help improve and streamline our process for
conducting settlement discussions:
0 Negotiation Preparation;
0 Management Review of Settlement ^ecisior.?; and
" Deadline Management.
Before describing these ch.anaes in the sections which follow,
a brief description of the problems that have been encountered
will nelc to exclain whv this --ruidar.ee '"-as b = er. crecared.
G-100
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OSWER Directive Number 9835.4
-3-
There are two kinds of problems sometimes associated with
negotiation preparation; instances where EPA does not fully
prepare itself for negotiations and instances where EPA does not
facilitate the preparation of PRPs. Negotiations are occasionally
begun without the benefit of government proposed settlement
documents (e.g., a draft consent decree and technical support
documents). Ideally, negotiating teams should have a strateay
for settlement which addresses goals, interim milestones for
continuing negotiations, firm schedules -and followup steps :n the
event settlement is not achieved. When EPA does not adequately
plan, it is difficult for the government to live up to its
responsibilities in moving discussions towards conclusion.
Perhaos Tore imoortant, though, are the issues related to
our support of the PRP preparation process. PP.Ps at Superfur.d
sites are often facing Tulti-mil1 ion dollar liability. There are
generally many of them (sometimes hundreds) and our success in
negotiations is greatly influenced by the extent to which the
PRPs have the time and information to organize themselves. Our
occasional failure to give =arly notice or to provide adequate
information (including draft settlement doe-Tents) to PRPs has
oeen clearly counterproductive. Conversely, in those instances
where notice has been given early in the process, substantial
information has been made available and whec-3 EPA has assisted
in the formation of steering committees (with or without third
party assistance), we have been much more successful in settlement
efforts.
Prompt conclusion of some negotiations has also been
occasionally hampered by breakdowns in EPA's management review
of settlement decisions. Superfund settlements nave frequently
posed issues «/hich are difficult either because of their prece-
dential nature or the sheer magnitude of the clean-up. Delayed
decisions often affect the willingness of PRPs to settle and
always impair the credibility of the negotiating team. When
delays have occurred, they are generally attributable to several
factors. In some instances, negotiating teams did not raise
issues to management aarly in the process, and decisions ultimately
are forced by crisis. In other cases, decisions seemingly can
be made only by the highest levels of Headauarters management.
The relative inaccessability of those decision-makers to decide
on critical issues in a timely way has sometimes been a major
impediment to settlement.
G-101
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OSWER Directive Number 9835.4
-4-
The third problem area in the settlement process relates to
managing deadlines for negotiations. In recognition of the fact
that these are multi-party negotiations over complicated legal
and technical issues, a reasonable opportunity should be provided.
However, guidelines must be established for bringing closure to
issues so as not to excessively delay the clean-up at the site.
At times, decisions are made to extend negotiations based ca a
showing of some subjective "progress", even where there is no
concrete result to show for that progress. Decisions are sometimes
made to continue negotiations based on concerns over future cost
recovery actions.
In order to substantially improve the CERCLA settlement
process, attention must be given to solutions for each of the
three areas discussed above. The framework set forth herein is
intended as a ma]or first step in that direction. However,
refinement and modification of thes*? staos will be considered
based on your comments and experience gained in the coming months.
SETTLEMENT PROCESS IMPROVEMENTS
Negotiation Preparation
Regions should imorove negotiation preparation through =OL;r
activities:
1. Earlier, Better Responsible Party Searches
2. Earlier Notice and Information Exchange
3. Initiating Discussions Earlier
4. Preparation of a Strategy ar.i Draft Settlement Documents.
The PR? Search is the first step in the settlement process
and is one of the most critical to success. Regions must pay
close attention to ooth the timing and quality of the ??? searcr.
since inadequate information on the identity of PRPs and tr.eir
contributions can be a significant impediment to the PRPs
organizing themselves to present an offer of settlement. Guidance
and targets established under the 3CA? now require that PRP
searches be initiated concurrent with the Expanded Site
Investigation or National Priorities List (NPL) scoring cuality
assurance process. PP.P searches are required to be completed
not later than the year in which the site is proposed for the
NPL. Contractor efforts should be supplemented by issuance of
information request letters or the use of administrative subpoenas
(a new provision of SARA) at the earliest possible time. It is
imperative that these so.irches be comprehensive and of high
G-102
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OSWER Directive Number 9835.4
-5-
quality. TtMt ptaces a heavy responsibility on Regional staff
to provide direction to and review of contractor efforts. in-
house civil investigators will be hired and available to Regions
this year to assist in this effort. In addition, Headquarters
staff from both OSWER and the Office of Enforcement and Comoliance
Monitoring (OECM) will revise the the "Potentially Responsible
Party Search Manual" as well as present a training program
for Regional staff and contractors on the conduct and review of
PRP searches. That training should be initiated late this year.
In the meantime, Regional staff should carefully evaluate the
adequacy of PR? searches for sites scheduled for fund obligations
or judicial referral luring FY 37 and early FY 88 to determine
whether supplemental work is necessary.
Regions should give notice to PRPs of their potential
liability through the traditional notice letters at the earliest
practicable time and, in all cases, well in advance of initiating
the negotiation moratorium. This is not to be confused with tne
Special Notice which triggers the moratorium as described in
§122(e). (Guidance on Special Notice and the moratorium is forth-
coming.) It is not acceptable to postpone issuing notice until
only the minimal tine for negotiations remains prior to obligation
of funds. Notice nay be given to some parties where further
investigation or analysis is necessary to i 'entify additional
PRPs.
Notice letters should routinely induce information recuests
under Section 104(e) if not previously issued. Notice letters
should to the maximum extent practicable also provide information
as to other ?R?s (i.e. names, volumes contributed and rankings).
In some cases, it may be more oratical to nrovide this information
after analyzing the responses to tr.-* information requests.
Is is likewise important to initiate iiscussions with ?R?s
earlier in the process. While formal negotiations may not begin
until after Special Notice and closer to the planned obligation
date for the project, EPA should encourage earlier discussions
that will further the process of educating the PRPs as to the
site/ EPA's approach to it and the information we have that may
bear on allocation or other pertinent matters.
The litigation team must also begin early the process of
preparing draft settlement documents and a negotiation strategy.
A draft Consent Decree (or administrative order for Remedial
Investigation/Feasibility Study (RI/FS)) snould be prepared
along with any negotiation suoport documents outlining technical
objectives to c^ presents:! *t or ->ecore the first negotiation
G-103
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OSWER Directive Number 9835.4
-6-
session. (Note that a "Negotiation Support Document" to be used
as a technical attachment for an RI/FS settlement may be prepared
by a contractor but must be initiated well in advance of
negotiations). Regional staff should also prepare for regional
management review a negotiation strategy which addresses:
8 initial positions on major issues with alternative and
bottomline positions or statements of settlement objectives;
3 schedule for negotiations which identifies not only the
drop-dead date but also interim milestones at which
negotiations can be evaluated for progress (date for good
faith proposal with line-by-line response to draft settle-
ment document; date for resolution of major issues related
to scope of work, funding arrangements, reimbursement;
date for receipt of all necessary subnittals from ?R?s
such as technical attachments, preauthorization requests,
trust agreements, etc);
* strategy and schedule *or action against PRPs in the
event negotiations are unsuccessful (i.e., issuance of
unilateral Administrative Order (AO) concurrent with
Remedial Design (RD) obligation, £--:tion 106
referral, etc).
The timing of most of these activities is critical and in
many cases will be related to the proposed date of obligation of
funds. For that reason, management attention to the entire site
management planning process is critical to ensure, that the
activities at sites are properly sequenced. In order to assist
you in this, attached for your Region is an Enforcement Conf: .lent:
printout taken from the Integrated SCAP wnic.n shews the states
of key settlement related activities for sites with planned
coligatio-.s during FY 87 or FY 88. (Attachment I)
Management Review of Settlement Decisions
To help improve the management review of settlements, this
section sets out roles and accountability in the decision process.
In addition, it adds two new elements to focus and streamline
policy review:
9 A Settlement Decision Committee (SDC); and the
3 Assistant Administrator (AA) Level Review Team.
G-104
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OSWER Directive Number 9835.4
-7-
Program« tafcrcement (OWPE) staff and appropriate State representa-
tives may participate as necessary. The responsibilities of the
negotiation team are to:
0 ensure that PRP searches, notice and information exchanae
are properly scheduled and completed;
0 develop a comprehensive neaotiations strateay in advance
of negotiations;
develop and share draft settlement documents, inrlj-ri
technical scopes of work, in advance of negotiations;
conduct neaotiations; ,^nd
0 caise issues to the 'enional Administrator, and where
necessary, to tHe Settlement Decision Committee for
reso 1 ution.
The Regional Administrator, in consultation with DCJ, is
expected to oe the primary decision-maker on CERCLA settlement
issues. Administrative settlements for PI/FS are fully the
Pegional Administrator's responsibility. OSWF' and OECM con-
currence continues to be reouired on remedial settlements. In
particular, certain major or precedential :ssues in Remedia
Design/Remedial Action ('D/PA) necociatio*- should be refer
for early '-"eadcua rters resolution. Thos = .ssues include ~i
funding or rreaut'-^or izat ion arrangements, troad releases,
d_e_ minimis settlements, deferred payment schemes, and remed
that deviate significantly from the ^ecorj of Decision (ROD
More detailed guidance on those issues will be prepared and
available to ^ou in tie comino months.
1
xed
ies
At the same time such guidance
will develop an oversight program t
sistency in -egional program ad^ini
feedback to allow future'policy adj
finalized, some experience has been
program is in place, we fully exoec
will have broad authority to reach
framework of that guidance. In the
of certain new authorities will be
concurrence recuirements. After a
of concurrence i-ay be made to those
continuous quality and consistency
enforcement process. At this point
within approximatslv one year, OSwr
oversight role, sssurine effective
applicable guidance and cevelcoinr
That role will also include ceriodi
of concurrence regain ustifie^.
is b e i r. z c
r. a t ensures
stration, a
usfents.
gained, an
t t^at the
settlement
meantime,
limited by
period of e
Regions wh
in a d n i n i s t
, which is
? and ~~CM
settl^-ents
rally :=
cuality and cc-
n d c r o v i d e s s u f 1
Once Guidance :
d the oversight
Regional Admini
decisions withi
initial delegat
consultation cr
xperience, waiv
ic'i demonstrate
erir.g the CFRCL
likely to occur
will la reel7 ei
str
n t
i o n;
e r s
.A
1 1 :
a tor
.::.7.3nee ?s
1 w i.-. z /,' h ? t'- e '
G-105
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OSWER Directive Number 9835.4
-8-
In the interim, a Settlement Decision Committee (SDC) has seen
created in Headquarters to provide timely action on issues which
require Headquarters review. The SDC will be made up of the
following individuals:
Chair: Gene A. Lucero, Director, OWPE
Members: Edward E. Reich, Associate Enforcement Counsel for Waste,
OECM
David T. Buente, Chief, Environmental .Enforcement Section,
DOJ
Basil G. Constantelos, Director, Waste Management Division,
Region V
Bruce Diamond, Regional Counsel, Region III
Henry L. Longest, Director, Office of Emergency and
Remedial Response (OERR) (when necessary)
Regional representatives to the SHC will be rotated every six
months. The SDC will meet approximately every 3-4 weeks, or more
often if necessary. Its primary responsibility will be to coordin-
ate decisions on policy issues raised by Regions. Most settlement
issues requiring Headquarters review will be resolved at this
level. The Chief, Compliance Branch, CERCLA Enforcement Division
(CED), OWPE will serve as secretary for the SDC and will coordinate''
communicating policy decisions to the affected Region, and more
broadly where decisions create precedent which may be transferable
to other sites. The SDC will also monitor Regions' progress towards
finalizing settlements, paying particulary close attention to
pending deadlines.
Regions should access the ?DC through either OECM-Waste or
the CERCLA Enforcement Division, OWPE. Regions should be prepared
to orovide a brief summary of the issue, options and their
recommendation. Regions nay, at their discretion, attend the SDC
meeting to present or elaborate on the issue. (More detailed
procedures will be established by the SDC.)
The Assistant Administrator Review Team which was established
during April 1986, will become a formal part of the management
review and decision-making process. The group will be chaired by
the AA-OSWER and include the AA-OECM and the Assistant Attorney
General for Lands and Natural Resources, DOJ. The primary function
of this Team will be to provide overall policy direction on
settlement concepts, but will also be available to resolve major
policy issues specific to sites where necessary, as determined by
the SDC. The AA Review Team will meet at least quarterly, but
may convene mor-* frecuently, if recuired by circumstances. As
Chair of the AA Review Team, the AA-OSWER rust approve extensions
of negotiations beyond the 30 day authority granted to Regional
Administrators below.
G-106
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OSWER Directive Mumber 9835.4
-9-
Deadline Management
Effective management of negotiations in the CERCLA program
will require increase management attention both in Regions and
Headquarters. In order to facilitate the management overview
that will be necessary, particularly within both the program and
counsel's office in the Region, OSWER will provide to you periodic
reports from the Integrated SCAP, similar to Attachment I, which
highlight negotiations in progress or planned for the next quarter.
Headquarters staff and management will use these reports to track
tha progress of and preparation for negotiations.
Recognizing the complexity of CERCLA settlement discussions,
it is clear that there will be instances where extension of
discussion beyond the moratorium period will -be appropriate. 7U,-?
framework for considering extensions includes:
1. Thirty day Extension by the Regional Administrators
2. Additional Extension by AA-OSWER in Exceptional
Circumstances
While the SARA Section 122 provisions related to special
notice and negotiation -noratoria are discretionary, EPA policy
will be that those provisions should generally be employed.
Section 122 provides for up to a 120 day -"oratorium before re-e:'.3l
action, during which time EPA may not ini:iate enforcement action
or remedial action. The full moratorium period is conditioned on
receiving a good faith offer from the PRPs within 60 days. n ics
absence, the moratorium expires after 60 days. (Note that while
EPA may proceed with design work, as a general rule we will not.)
Where adequate preparation as discussed above has preceded special
notice, Regions should generally .oe able to conclude necotiat i.^s,
or at a minimum, resolve all major issues during that period.
While negotiation extensions should not be encouraged, Recic-.al
Administrators may grant extensions to negotiations when it is
believed that a settlement is likely ani imminent. However, this
period should not to exceed 30 days.
Further extension of negotiations beyond that 30 day period
may be approved only by the AA-OSWER. Absent that approval,
Regions are expected to move forward with rund-financed action,
administrative order or judicial referral where appropriate.
(Note that negotiations may be resumed at any point after referral
and filing of a Section 106 action.) Extensions will be granted
only in rare and extraordinary circumstances and will generally
be for short duration where the expectation is that final agreement
is imminent. Recuescs for *
-------
OSWER Directive Number 9«35 .4
-10-
and should set out succinctly: 1) Che length of extension re-
quested; 2) status of negotiations (issues resolved and those
unresolved); 3) justification for extension; and 4) actions to be
taken in the event that negotiations are unsuccessful. Tbe AA-OSWFR
will only consider requests for extensions made by the Regional
Administrator and not direct requests made by PRPs.
In order to avoid any misunderstanding, these limitations
should be communicated to the PRPs early in anv discussions.
Moreover, the schedule for negotiations, so long as it respects
these deadlines, is alwavs open to adiustment by agreement among
the parties.
As discussed earlier, it is important to recognize that
negotiations are not limited to the 120 day period established by
the special notice provisions of the law. Information requests
and traditional notice letters should be sent as soon as possible,
and initial discussions should almost always occur with PRPs before
the special notice is provided. We are developing more detailed
guidance on notice letters, and the use of the special notice
procedures, and we anticipate circulating this guidance for
comment within the next month.
One of the lessons learned as a result if the limited April-
May 1986 funding during the Superfund slowdown was chat there are
benefits derived by having several settlements which are on a
parallel and firm schedule for final resolution. Not onlv did we
find that firm schedules tend to force issues to resolution, but
it proved to facilitate management review in that sites with
similar issues could be dealt with concurrent!-.*. In order to
extend this "clustering" effect, OSW13 is considering including
in the FY 88 Strategic Planning and Management ^vstem ^S?MS>
commitments a target for completion of RD/RA negotiations.
Approach for RI/FS Negotiations
In light of the delegation of RI/FS decisions, much of the
above process is not relevant for RI/FS negotiations. The Agencv
continues to encourage PRP conduct of RI/FS in appropriate
circumstances (see Thomas/ Price memorandum "Participation of
Potentially Responsible Parties in Development of Remedial
Investigation and Feasibility Studies", dated March 21, 1°«M.
RI/FS settlement issues should generally be resolved by the Regional
Administrator and need not be submitted to the SDC or the AA-level
review group. Section 122 authorizes a 90 -lav moratorium for
negotiations, conditioned on receiving a good caitb offer from
PRPs within 60 days of special notice. Regional Administrators
have discretion to terminate or extend negotiations aftar ?n Jav^
However, extension of negotiations bevond an additional T) davs
should be authorized bv the Regional Administrator onlv in
G-108
-------
OSWER Directive Number 98.35.6.
limited caa«s. The points made above in Negotiation Preparation
are equally applicable to RI/FS negotiations, with the exception
that negotiation strategies do not require Headquarters review.
SUMMARY
Implementation of these steps to streamline the settlement
process was identified by the Administrator as one of his highest
priorities under SARA. We urge you to give this topic the same
priority in your Regions and provide a commensurate level of
management attention.
If you have any questions about these measures or cheir
implementation, please contact either of us directly.
Attachment
cc: Superfund Branch Chiefs
Regional Counsel RCRA/CEPCLA Branch Chiefs
Enforcement Section Chiefs
Gene A. Lucero
Henry Longest
Ed Reich
Jack Stanton
Russ Wyer
David Buente
G-109
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Appendix H
List of Contacts
-------
NOTE: Two additional sources listing possible contacts:
Sources of State Information on Corporations
Washington1 Researchers, Ltd.
Washington, D.C.
EPA Headquarters Telephone Directory
U.S. EPA
Washington, D.C.
H-l
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EPA HEADQUARTERS*
Assistant Administrator for Solid Waste and Emergency Response
Office of Emergency and Remedial Response (Superfund)
Mail Code: WH-548
(202) 382-2180
Emergency Response Division
Mail Code: WH-548B
(202) 475-8720
Hazardous Response Support Division
Mail Code: WH-548A
(202) 475-8600
Hazardous Site Control Division
Mail Code: WH-548E
(202) 382-4632
Office of Solid Waste
Mail Code: WH-562
(202) 382-4627
CERCLA Enforcement Division
Mail Code: WH-527
(202) 382-4812
RCRA Enforcement Division
Mail Code: WH-527
(202) 382-4808
A complete list of EPA organizations is available in the EPA Headquarters
Telephone Directory. The mailing address for each of the divisions listed is:
401 M Street, S.W.
Washington, DC 20460
H-2
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Region
Region 2:
Region 3:
Region 4:
Region 5:
Region 6:
Region 7:
EPA REGIONAL CONTACTS
Waste Management Division
USEPA Region 1
JFK Federal Building
Boston, MA 02203
Tel.: FTS 565-3666; CML (617) 565-3666
Site Investigation and Compliance Branch (Rm. 402)
USEPA Region 2
26 Federal Plaza
New York, NY 10278
Tel.: FTS 264-8123; CML (212) 264-8123
CERCLA Enforcement Section (3HW12)
USEPA Region 3
841 Chestnut St., 6th Floor
Philadelphia, PA 19107
Tel.: FTS 597-2365; CML (215) 597-2365
Investigations and Compliance Section
USEPA Region 4
345 Courtland St., N.E.
Atlanta, GA 30365
Tel.: FTS 257-2930; CML (404) 347-2930
Hazardous Waste Enforcement Branch (5HE-12)
USEPA Region 5
230 South Dearborn St.
Chicago, IL 60604
Tel.: FTS 353-6431; CML (312) 886-7337
Superfund Compliance Section (6H-EC)
USEPA Region 6
1201 Elm St.
Dallas, TX 75270
Tel.: FTS 729-9714; CML (214) 767-9714
Air & Waste Management Division
USEPA Region 7
726 Minnesota Avenue
Kansas City, KS 66101
Tel.: FTS 758-6864; CML (913) 236-2856
(continued)
H-3
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EPA REGIONAL CONTACTS (Continued)
Region 8: Air & Waste Management Division
USEPA Region 8
999 18th St. (1 Denver Place) Tower 1
Denver, CO 80295
Tel.: FTS 327-1798; CML (303) 293-1518
Region 9: Toxics & Waste Management Division (T-4)
USEPA Region 9
215 Fremont St.
San Francisco, CA 94105
Tel.: FTS 454-7734; CML (415) 974-7734
Office of Territorial Programs
USEPA Region 9
215 Fremont St.
San Francisco, CA 94105
Tel.: FTS 454-7431; CML (415) 974-7431
Region 10: Hazardous Waste Division (Mailstop 524)
USEPA Region 10
1200 6th Ave.
Seattle, WA 98101
Tel.: FTS 399-1993; CML (206) 442-1993
H-4
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ALABAMA
Air Pollution Control Commission
645 S. McDonough
Montgomery, AL 36130
(205) 832-6770
Dept. of Environmental Mgmt.
Water Division
1751 Federal Drive
Montgomery, AL 36130
(205) 271-7700
Dept. of Environmental Mgmt.
Indus. & Hazardous Waste Sec.
1751 Federal Drive
Montgomery, AL 36130
Dept. of Public Health
Environmental Health Admin.
State Office Bldg.
Montgomery, AL 36104
(205) 832-3176
Dept. of Public Health
Water Improvement Commission
3815 Interstate Court
Montgomery, AL 36130
(205) 277-3630
Geological Survey of Alabama
State Oil and Gas Board
P.O. Drawer O
University, AL 35468
(205) 349-2852
Office of Secretary of State
Corporation Division
524 State Office Building
Montgomery, AL 36130
(205) 832-6855
Office of Secretary of State
UCC Division
State Office Bldg., Room 536
Montgomery, AL 36130
(205) 832-3572
ALASKA
Dept. of Administration
Uniform Commerical Code
Pouch D
Juneau, AK 99811
(907) 465-2272
Dept. of Commerce & Economic
Development
Corporate Section
Pouch D
Juneau, AK 99811
(907) 465-2531
Dept. of Environmental
Conservation
Oil Pollution Control
Pouch O
Juneau, AK 99811
(907) 465-2653
Department of Environmental
Conservation
Air and Solid Waste Mgmt.
Section
Pouch O
Juneau, AK 99811
(907) 465-2666
Dept. of Environmental
Conservation
Air and Quality Section
Terrestiral Programs
Pouch O
Juneau, AK 99811
(907) 465-2631
Dept. of Environmental
Conservation
Waste Programs
Pouch O
Juneau, AK 99811
(907) 465-2640
H-5
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ARIZONA
Corporate Commission
2222 W. Encanto Bldg.
Suite 210-D
Phoenix, AZ 85009
(602) 271-3625
Dept. Of Health Services
Environmental
Health Services
2005 North Central Avenue
Phoenix, AZ 85007
(602) 258-6381
Secretary of State
1700 W, Washington Street
Phoenix, AZ 85007
(602) 271-4285
Department of Water Division of
Resources
Remedial Action Division
99 East Virginia
Phoenix, AZ 85007
(602) 266-1586
ARKANSAS
Dept. of Pollution Control &
Ecology
P.O. Box 9583
8001 National Drive
Little Rock, AR 72201
(501) 371-1701
Division of Air Pollution Control
(501) 371-1136
Solid and Hazardous Division
(501) 562-7444
Water Division
(501) 371-1701
Department of Health
Bureau of Public Health Enj
Donoghey Bldg., 13th Floor
Seventh & Main Sts.
Little Rock, AR 72201
(501) 562-7444
Secretary of State
Corporation Division
State Capitol Bldg.
Little Rock, AR 72201
(501) 371-1010, Ext. 25
Secretary of State
UCC Division
State Capitol Bldg.
Little Rock, AR 72201
(501) 371-1010, Ext. 23
H-6
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CALIFORNIA
Air Resources Board
Stationary Source Control Div.
P.O. Box 2815
Sacramento, CA 95812
(916)445-0750
Dept. of Health Services
Toxic Substance Control Division
1219 K Street
Sacramento, CA 95814
(916)324-3752
Dept. of Water Resources
1416 9th Street
P.O. Box 388
Sacramento, CA 95802
(916)445-6582
Governor's Off. of Planning & Research
Project Coordination Unit
State Clearinghouse
1400 10th St., Room 121
Sacramento, CA 95814
(916)445-0613
Secretary of State
Corporate Filing Division
1230 J. Street
Sacramento, CA 95814
(916) 445-0620
Secretary of State
UCC Division
P.O. Box 1738
Sacramento, CA 95808
(916) 445-8061
Solid Waste Management Board
1020 9th St., Suite 300
P.O. Box 1743
Sacramento, CA 95814
(916) 322-3330
Water Resources Control Board
Legal Division
P.O. Box 100
Sacramento, CA 95801
(916) 445-7762
COLORADO
Department of Health
4210 E. llth Ave.
Denver, CO 80220
Office of Environmental Programs
(303) 320-4180
Air Pollution Control Division
(303) 331-8500
Waste Management Division
(303) 320-8333, Ext. 4364
Water Quality Control Division
(303) 320-320-8333, Ext. 3231
Remedial Programs
(303) 320-8333, Ext. 3355
Public Utilities Commission
500 State Services Bldg.
1525 Sherman Street
Denver, CO 80203
(303) 866-3174
Secretary of State
Corporations Division
1575 Sherman Street
Denver, CO 80203
(303) 839-2361
Secretary of State
Corporations Division
1575 Sherman Street
Denver, CO 80203
(303) 839-2563
H-7
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CONNECTICUT
Dept. of Env. Protection
165 Capitol Ave.
Hartford, CT 06115
(203) 566-5524
Air Compliance Unit
(202) 566-4030
Hazardous Materials Mgmt.
Unit
(203) 566-5712
Water Compliance Unit
(203) 566-3245
Water Resources Unit
Wetlands Management Section
(203) 566-7280
Office of the Secretary of State
Corporation Division
30 Trinity Street
Hartfort, CT 06115
(203) 566-3216
Office of the Secretary of State
UCC Division
30 Trinity Street
Hartford, CT 06115
(203) 566-3216
DELAWARE
Dept. of Natural Resources
and Environmental Control
Division of Env. Control
Air Resources Section
P.O. Box 1401
Tatnall Bldg.
Dover, DE 19901
(302)678-4791
Dept. of Natural Resources
and Environmental Control
Division of Env. Control
Water Resources Section
P.O. Box 1401
Tatnall Bldg.
Dover, DE 19901
(302)678-4761
Department of Natural Resources
and Environmental Control
Wetlands Section
Blue Hen Mall, Room 203
Dover, DE 19901
(302)736-4691
Secretary of State
Corporations Dept.
P.O. Box 898
Dover, DE 19901
(302) 678-4221
Secretary of State
Uniform Commercial Code Div.
P.O. Box 793
Dover, DE 19901
(302) 678-4279
Solid Waste Authority
P.O. Box 455
Dover, DE 19903-0455
(302) 736-5361
H-8
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DISTRICT OF COLUMBIA
Dept. of Environmental Services
Environmental Health Admin.
Bureau of Air & Water
Quality Control
5010 Overlook Ave., SW
Washington, DC 20032
(202) 767-7651
Government of the District of
Columbia
Dept. of Transportation
Bureau of Design,
Engineering and Research
613 G Street, NW
Washington, DC 20001
(202) 939-8060
Dept. of Public Works of
the District of Columbia
Public Space Maintenance Admin.
Solid Waste Permit Branch
6523 Chillum Place, NW
Washington, DC 20012
(202) 767-8176
Dept. of Consumer and
Regulatory Affairs
Housing and Environmental
Regulation Administration
Hazardous Waste Section
P.O. Box 37200
Washington, DC 20013-7200
(202) 767-8414
FLORIDA
Bureau of Geology
903 West Tennessee St.
Tallahassee, FL 32304
(904) 488-2817
Dept. of Env. Regulation
2600 Blair Stone Rd.
Twin Towers Office Bldg.
Tallahassee, FL 32301
(904) 488-4807
Solid Waste Management Prog.
(904) 488-0300
Office of Public Information
(904) 488-9334
Hazardous Waste Management
Program
(904) 488-0300
Secretary of State
Division of Corporations
Capital Bldg., Room 2001
Tallahassee, FL 32304
(904) 488-9000
Secretary of State
UCC Division
Capitol Bldg., Room 2001
Tallahassee, FL 32304
(904) 488-1010
H-9
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GEORGIA
Dept. of Natural Resources
Environmental Protection Div.
270 Washington St., SW
Atlanta, GA 30334
(404) 656-3214
Air Protection Branch
(404) 656-6900
Water Protection Branch
(404) 656-6593
Secretary of State
Corporations Dept.
225 Peachtree St., NE.
Suite 600
Atlanta, GA 30303
(404) 656-2185
Secretary of State
Securities Division
State Capitol, Room 214
Atlanta, GA 30334
(404) 656-2894
HAWAII
Department of Health
Division of Environ. Health
1250 Punchbowl Street
Honolulu, HI 96813
(808) 548-6455
Department of Health
Environmental Protection and
Health Services Division
Environmental Permits Branch
P.O. Box 3378
Honolulu, HI 96813
(808) 548-6410
Dept. of Regulatory Agencies
Business Registration Div.
P.O. Box 40
Honolulu, HI 96813
(808) 548-6521
Uniform Commerical Code
Bureau of Conveyances
P.O. Box 2867
Honolulu, HI 96813
(808) 548-3108
IDAHO
Dept. of Health & Welfare
Division of Environment
700 W. State St., 5th Floor
Boise, ID 83720-9990
(208) 384-2393
Bureau of Air Quality
(208) 384-2903
Bureau of Water Quality
(208) 384-2433
Department of Lands
Statehouse
Boise, ID 83720
(208) 334-3280
Department of Water Resources
Groundwater Programs
Statehouse
Boise, ID 83720
(208) 334-4479
H-10
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IDAHO (cont'd)
Hazardous Materials Bureau
(208) 334-4118
Dept. of Health & Welfare
Division of Support Services
Administrative Procedures Sec.
450 W. State St., 9th Floor
Boise, ID 83720
(208) 384-2433
Secretary of State
Corporations Division
State House, Room 203
Boise, ID 83720
(208) 384-2300
Secretary of State
UCC Division
State House, Room 203
Boise, ID 83720
(208) 384-2300
ILLINOIS
Environmental Protection Agency
2200 Churchill Road
Springfield, IL 62706
(217) 782-5562
Secretary of State
Corporation Department
Centennial Building
Springfield, IL 62756
(217) 782-7880
Secretary of State
UCC Division
Centennial Bldg., Room 030
Springfield, IL 62756
(217) 782-7518
INDIANA
Board of Health
Air Pollution Control Division
1330 W. Michigan Street
Indianapolis, IN 46206
(317) 633-0619
Board of Health
Div. of Land Pollution Control
1330 West Michigan Street
Indianapolis, IN 46206
(317) 243-5014
Board of Health
Div. of Water Pollution Control
1330 W. Michigan Street
(317) 633-0176
Board of Health
Environmental Health Bureau
1330 W. Michigan Street
Indinapolis, IN 46206
(317) 633-8404
Secretary of State
Corporation Division
State House, Room 155
Indianapolis, IN 46204
(317) 633-6576
Secretary of State
UCC Division
State House, Room 157
Indianapolis, IN 46204
(317) 633-6393
H-ll
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IOWA
Department of Water, Air & Waste
Management
Henry A. Wallace Bldg.
900 E. Grand Avenue
Des Moines, IA 50319
(515) 281-8690
Secretary of State
UCC Division
Grimes Bldg.
Des Moines, IA 50319
(515) 281-3226
Secretary of State
Corporation Division
State Capitol Bldg.
Des Moines, IA 50319
(515) 281-5204
KANSAS
Corporation Commission
Conservation Division
200 Colorado Derby Building
202 West First Street
Wichita, KS 67202-1286
(316) 263-3238
Secretary of State
UCC Department
The Statehouse
Topeka, KS 66612
(913) 296-2236
Department of Health and the Environment
Division of Environment
Forbes AFB
Topeka, Kansas 6620-7200
(913) 812-9360 or (913) 862-9360
Secretary of State
Corporation Department
The Statehouse, 2nd Floor
Topeka, KS 66612
(913) 296-2236
KENTUCKY
Department of Natural Resources
and Environmental Protection
Environmental Protection Bureau
Capital Plaza Tower
Frankfort, KY 40601
(502) 544-3350
Office of Secretary of State
Corporation Division
Capital Building, Room 154
Frankfort, KY 40601
(502) 564-7330
Department for Natural Resources
and Environmental Protection
Division of Water Quality
1065 Highway 127 South
Century Plaza
Frankfort, KY 40601
(502) 564-3410
Department of Mines and Minerals
1120 Graham Avenue
P.O. Box 680
Lexington, KY 40586
(606) 254-0367
H-12
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LOUISIANA
Bureau of Environmental Services
Air Quality Section
325 Loyola Avenue
New Orleans, LA 70112
(504) 568-5122
Bureau of Environmental Services
Division of Health
325 Loyola Avenue
New Orleans, LA 70112
(504) 568-5100
Department of Environmental Quality
Solid Waste Management Division
P.O. Box 44066
Baton Rouge, LA 70804
(504) 342-1265
Office of Conservation
P.O. Box 44275
Baton Rouge, LA 70804
(504) 342-5540
Bureau of Environmental Services
Water Quality Section
325 Loyola Avenue
New Orleans, LA 70112
(504) 568-5101
Office of Environmental Affairs
Air Quality Division
P.O. Box 44066
Baton Rouge, LA 70804
(504) 342-1206
Department of Environmental Quality
Water Pollution Control Division
P.O. Box 44091
Baton Rouge, LA 70804-4066
(504) 342-6363
Secretary of State
Corporation Division
P.O. Box 44125
Baton Rouge, LA 70804
(504) 925-4704
MAINE
Department of Conservation
Bureau of Parks and Recreation
State House Station 22
Augusta, ME 04333
(207) 289-3821
Department of Environmental Protection
Bureau of Water Quality Control
Ray Building
Hospital Street
Augusta, ME 04333
(207) 289-2591
Department of Environmental Protection
Division of Licensing and Enforcement
Bureau of Oil and Hazardous Materials
State House Station 17
Augusta, ME 04333
(207) 289-2651
Department of Conservation
Land Use Regulation Commission
State House Station 22
Augusta, ME 04333
(207) 289-2631
Department of Environmental Protection
Bureau of Land Quality Control
Ray Building, Hospital Street
State House Station #17
Augusta, ME 04333
(207) 289-2111 or (207) 289-2631
Secretary of State
Corporation Division
State Office Building
Augusta, ME 04333
(207) 289-3676
H-13
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MAINE (Cont'd)
MARYLAND
Dept. of Environmental Protection
Division of Information Education
State House
Augusta, ME 04333
(207) 289-2691
Secretary of State
UCC Division
State Office Building
Augusta, ME 04333
(207) 289-3676
Chesapeake Bay Commission
60 West Street, Suite 200
Annapolis, MD 21401
(301) 263-3420
Department of Health and Mental Hygiene
Division of Solid Waste Control
201 West Preston
Baltimore, MD 21201
(301) 225-5709
Department of Health and Mental Hygiene
Office of Environmental Programs
Hazardous Waste Management Administration
201 West Preston Street
P.O. Box 13387
Baltimore, MD 21201
(301) 225-5649
Department of Health and Mental Hygiene
Environmental Health Administration
201 West Preston Street
Baltimore, MD 21201
(301) 383-2740
Department of Natural Resources
Water Resources Administration
Resource Protection Program
Tawes State Office Building
Annapolis, MD 21401
(301) 269-3877
Dept. of Environmental Protection
Division of Public Assistance
Station 17, State House
Augusta, ME, 04333
(207) 289-2343
Department of Health and Mental Hygiene
Bureau of Air Quality
201 West Preston Street
Baltimore, Maryland 21201
(301) 383-2410
Department of Health and Mental Hygiene
Office of Environmental Programs
201 West Preston Street
Baltimore, MD 21201
(301) 225-5750
c
Department of Health and Mental Hygiene
Water Management Administration
201 West Preston Street
Baltimore, MD 21201
(301) 383-2737
Department of Natural Resources
Water Resources Administration
Tawes State Office Building
Annapolis, MD 21401
(301) 269-2265 or (301) 269-3871
State of Assessment and Taxation
301 West Preston Street
Baltimore, MD 21201
(301) 383-3330
H-14
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MASSACHUSETTS
Department of Environmental Quality
Engineering
One Winter Street, 7th Floor
Boston, MA 02108
(617) 292-5673
Department of Environmental Engineering
Division of Hazardous Wastes
One Winter Street
Boston, MA 02018
(617) 292-5583, 5481, or 727-4293
Department of Environmental Quality
Engineering
Division of Water Pollution Control
One Winter Street
Boston, MA 02018
(617) 292-5673
Board of Fire Prevention
Department of Public Safety
1010 Commonwealth Avenue
Boston, MA 02215
(617) 556-4500
Merrimack River Valley Flood
Control Commission
c/o Division of Water Resources
Leverett Saltonstall Building
Government Center 100
Cambridge
(413) 773-3601
Secretary of State
Corporations Division
One Ashburton Place, 17th Floor
Boston, MA 02108
(617) 727-2853
Department of Environmental Quality
Engineering
Division of Air Quality Control
One Winter Street
Boston, MA 02108
(617) 292-5630
Department of Environmental Quality
Engineering
Division of Water Pollution Control
Executive Office of Environmental
Affairs
110 Tremont Street
Boston, MA 02108
(617) 727-3855
Department of Public Health
Division of Air & Hazardous Materials
Executive Officers of Human Services
600 Washington Street, Room 320
Boston, MA 02111
(617) 727-2658
Department of Public Safety
State Board of Fire Marshal's Office
Board of Fire Prevention
Boston, MA 02113
(617) 292-5581
State Building Code Commission
John W. McCormack
State Office Building, 13th Floor
One Ashburton Place
Boston, MA 02108
(617) 727-3200
Secretary of State
UCC Division
One Ashburton Place, Room 1711
Boston, MA 02108
(617) 727-2860
H-15
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MICHIGAN
Department of Natural Resources
Stevens T. Mason Building
P.O. Box 30028
Lansing, MI 48909
(517) 373-1950
Department of Natural Resources
Environmental Services Division
Office of Hazardous Waste Management
Box 30028
Lansing, MI 48909
(517) 373-6620 and 2730
Department of Natural Resources
Resource Recovery Division
P.O. Box 30028
Lansing, MI 48909
(517) 373-2730
Department of Commerce
Corporation & Securities Bureau
P.O. Box 30054
Lansing, MI 48909
(517) 373-0493
Department of Natural Resources
Air Quality Division
Stevens T. Mason Building
P.O. Box 30028
Lansing, MI 48909
(517) 322-1330
Department of Natural Resource
Water Quality Division
P.O. Box 30028
Lansing, MI 48909
(517) 373-1947
Department of Public Health
Bureau of Environmental &
Occupational Health
P.O. Box 30035
3500 North Logan Street
Lansing, MI 48909
(517) 373-1410
Secretary of State
UCC Unit
Lansing, MI 48918
(517) 373-0810
MINNESOTA
Minnesota, Wisconsin, Boundary Area
Commission
619 Second Street
Hudson, Wisconsin 54016
(715) 386-9444
Pollution Control Agency
Division of Water Quality
1935 West County Road, B-2
Roseville, MN 55113-2785
(612) 296-7238
Pollution Control Agency
1935 West Country Road, #B-2
Roseville, Minnesota 55113-2785
(612) 296-7765
Pollution Control Agency
Solid and Hazardous Waste Division
1935 West Conty Road B-2
Roseville, Minnesota 55113-2785
(612) 296-7278
Secretary of State
Corporation Division
State Office Building, Room 180
St. Paul, MN 55155
(612) 296-2803
Pollution Control Agency
Division of Air Quality
1935 West County Road B-2
Roseville, MN 55113-2785
(612) 296-7331
H-16
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MINNESOTA (Cont'd)
Secretary of State
UCC Division
State Office Bldg., Room 180
St. Paul, MN 55155
(612) 296-2434
MISSISSIPPI
Air & Waste Pollution Control Commission
P.O. Box 827
Robert E. Lee Building
Jackson, MS 39205
(601) 354-2550
Secretary of State
Corporation Division
P.O. Box 136
Jackson, MS 39205
(601) 354-6541
State, Oil, and Gas Board
1404 Sillers Building
P.O. Box 1332
Jackson, MS 39205
(601) 359-3737
Department of Natural Resources
Bureau of Pollution Control
Division of Solid Waste Management
P.O. Box 10385
Jackson, Mississippi 39209
(601) 961-5171
Department of Wildlife Conservation
Bureau of Marine Resources
USM Gulf Park Campus
P.O. Box Drawer 959
Long Beach, MS 39560
(601) 864-4602
Secretary of State
UCC Division
P.O. Box 136
Jackson, MS 39205
(601) 354-6545
MISSOURI
Department of Natural Resources
Division of Environmental Quality
Box 1368
Jefferson City, MO 65102
(314) 571-3241
Secretary of State
Corporations Division
State Capitol, Room 207
Jefferson City, MO 65102
(314) 751-4153
Secretary of State
UCC Division
P.O. Box 1159
Jefferson City, MO 65102
(314) 751-2360
Department of Natural Resources
Division of Environmental Quality
Water Pollution Control Program
P.O. Box 176
Jefferson City, MO 65101
(314) 751-3241
Department of Natural Resources
Waste Management Program
Division of Environmental Quality
1915 Southridge Drive
P.O. Box 1368
Jefferson City, MO 65102
(314) 751-3241
H-17
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MONTANA
Department of Health and
Environmental Sciences
Environmental Sciences Division
Cogswell Building
Helena, MT 59601
(406) 444-2406
Department of Natural Resources and
Conservation
Water Resources Division
Natural Resources Building
32 South Ewing
Helena, MT 59601
(406) 444-6610
Secretary of State
Corporation Department
State Capitol
Helena, MT 59601
(406) 449-2034
Secretary of State
Corporation Department
State Capitol
Helena, MT 59601
(406) 449-2034
NEBRASKA
Department of Environmental Control
P.O. Box 94877
301 Centennial Mall, South
Lincoln, NE 68509
(402) 471-2186
Secretary of State
Corporation Division
State Capitol
Lincoln, NE 68509
(402) 471-4079
Nebraska Natural Resources Commission
301 Centennial Mall South
P.O. Box 94876
Lincoln, NE 68509
(402) 471-2081
NEVADA
Department of Conservation and
Natural Resources
Division of Environmental Protection
201 South Fall Street
Capitol Complex, Room 221
Carson City, NV 89710
(702) 885-4670/4380
Secretary of State
Corporations Division
Capitol Complex
Carson City, NV 89710
(702) 885-5203
Environmental Protection Services
201 South Fall Street, Room 120
Carson City, NV 89710
(702) 885-4670
Secretary of State
UCC Division
Capitol Complex
Carson City, NV 89710
(702) 885-5203
H-18
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NEW HAMPSHIRE
Bureau of Solid Waste Management
Division of Public Health
State Lab Building
Hazen Drive
Concord, NH 03301
(603) 271-2605
Department of Health & Welfare
Pollution Control Agency
Hazen Drive
Concord, NH 03301
(603) 271-2487
Department of Health and Welfare
Division of Public Health Services
Office of Waste Management
Health and Welfare Building
Hazen Drive
Concord, NH 03301
(603) 271-4474
Department of Resources and Economic
Development
Division of Resources Development
Concord, HN 03301
(603) 271-2343
Secretary of State
Corporation Division
State House, Room 113
Concord, NH 03301
(603) 271-3244
Water Resources Board
37 Pleasant Street
Concord, New Hampshire 03301
(603) 271-3406
Water Supply & Pollution Control Air
Commission
P.O. Box 95
105 Loundon Road
Concord, NH 03301
(603) 271-3503
Water Supply and Pollution
Control Commission
Oil Pollution Division
P.O. Box 95
Hazen Drive
Concord, NH 0301
(603) 271-3503
Secretary of State
UCC Division
State House, Room 203
Concord, NH 03301
(603) 271-3242
NEW JERSEY
Department of Environmental Protection
P.O. Box 2807
Trenton, NJ 08625
(609) 292-2916
Department of Environmental Protection
Bureau of Air Pollution Control
P.O. Box CN 027
Trenton, New Jersey 08625
(609) 292-6704
Department of Environmental Protection
Office of Hazardous Substances Control
120 Route 156
Yardville, NJ 5560
(609) 292-5560
NJPDES Permit Administration
Division of Water Resources
Water Quality Management
P.O. Box CN 027
Trenton, NY 08625
(609) 292-6891
H-19
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NEW JERSEY (cont'd)
Dept. of Environmental Protection
Division of Coastal Resources
CN 401 Trenton, NJ 08625
(609) 292-2885
Department of Environmental Protection
Division of Waste Management
Bureau of Hazardous Waste
32 East Hanover Street
Trenton, New Jersey 08625
(609) 292-6891
Department of Environmental Protection
Division of Water Resources
1474 Prespect Street
Box 2809
Trenton, New Jersey 08625
(609) 292-0580
Secretary of State
Commerical Recording Section
State House
P.O. Box 1330
Trenton, NJ 08625
(609) 292-5284
Secretary of State
UCC Division
State House
P.O. Box 1330
Trenton, NJ 08625
(609) 292-3799
NEW MEXICO
Environmental Improvement Board
Crown Building
P.O. Box 968
Santa Fe, NM 87503-0968
(505) 827-9814
Environmental Improvement Board
Environmental Improvement Division
State Health and Environment
Department
Hazardous Waste Unit
P.O. Box 968
Santa Fe, MN 87503
(505) 984-0020
Environmental Improvement Division
Ground Water/Hazardous Waste Bureau
P.O. Box 968
Santa Fe, NM 87503
(505) 827-2933
Health and Environment Department
Water Quality Control Division
P.O. Box 968
Santa Fe, NM 87503
(505) 984-0200 (Ext. 318)
Secretary of State
Uniform Commerical Code
Legislative Executive Building, Room 400
Santa Fe, NM 87503
(505) 827-2717
State Corporation Commission
P.O. Drawer 1269
Santa Fe, NM 87501
(505) 827-2852
H-20
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NEW MEXICO (cont'd)
Environmental Improvement Division
Health & Environment Department
P.O. Box 968
Crown Building
Santa Fe, NM 87503
(505) 827-5271
Water Quality Control Commission
P.O. Box 968
Sante Fe, New Mexico 87503
(505) 827-5271 (Ext. 318)
NEW YORK
Department of Environmental
Conservation
50 Wolf Road
Albany, NY 12233
(518) 457-5557/or 457-7326
or 475-3446
Department of Environmental
Conservation
Division of Air
Bureau of Source Control
50 Wolf Road
Albany, NY 12233
(518) 457-6390
Department of Environmental
Conservation
Division of Solid and Hazardous Waste
50 Wolf Road
Albany, NY 12233-001
(518) 457-6858
Department of Environmental Conservation
Division of Solid Waste
Bureau of Hazardous Waste
50 Wolf Road
Albany, NY 12333-0001
(518) 457-3273
Department of State
UCC Division
P.O. Box 7021
Albany, NY 12231
(518) 474-4763
Office of Secretary
Certification Division
162 Washington Avenue
Albany, NY 12231
(518) 474-6207
NORTH CAROLINA
Department of Natural Resources and
Community Development
Environmental Management Commission
P.O. Box 27687
Raleigh, NC 27611
(919) 733-5083
Department of Environmental
Management
Department of Natural Resources and
Community Development
512 North Salisbury Street
Raleigh, NC 27611
(919) 733-7015
Department of Natural Resources and
Community Development
Wastewater Management
512 North Salisbury Street
Raleigh, NC 27611
(919) 733-7120
Department of Natural Resources
and Community Development
Office of Coastal Management
512 North Salisbury Street
P.O. Box 27687
Raleigh, NC 27611-7687
(919) 733-2293
H-21
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NORTH CAROLINA (cont'd)
Department of Natural Resources and
Community Development
Division of Environment Management
Air Quality Management
512 North Salisbury Street
Raleigh, NC 27611
(919) 733-2930
Department of Natural Resources and
Community Development
Division of Environmental Management
Groundwater Branch
P.O. Box 27687
512 North Salisbury Street
Raleigh, NC 27611-7687
(909) 733-2020
Secretary of State
Corporation Department
116 West Jones Street
Raleigh, NC 27611
(919) 629-2111
Secretary of State
UCC Division
116 West Jones Street
Raleigh, NC 27611
(919) 733-4205
NORTH DAKOTA
Department of Health
Air Pollution Control
Environmental Engineering Division
1200 Missouri Avenue
Bismarck, ND 58505
(701) 224-2348
Department of Health
Environmental Waste
Management and Special Studies
1200 Missouri Avenue, Room 302
Bismark, ND 58505
(701) 224-2366
Department of Health
Waste Management Program
Division of Hazardous Waste
Management and Special Studies
1200 Missouri Avenue
Box 5520
Bismarck, ND 58505
(701) 224-2366
Department of Health
Solid Waste Management
Environmental Engineering Division
1200 Missouri Avenue
Bismarck, ND 58505
(701) 224-2366
Industrial Commission
Oil and Gas Division
900 East Bouldevard
Bismarck, ND 58505
(701) 224-2969
Office of the North Dakota State
Division of Engineering
900 East Boulevard
Bismark, ND 58505
(701) 224-2210
Secretary of State
Corporation Department
State Capitol
Bismarck, ND 58505
(701) 224-2900
Secretary of State
UCC Department
State Capitol
Bismarck, ND 58505
(701) 224-2900
H-22
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NORTH DAKOTA (cont'd)
Department of Health
Water Supply & Pollution Control
Environmental Engineering Division
1200 Missouri Avenue
Bismarck, ND 58505
(701) 224-2354
OHIO
Ohio Department of Natural Resources
Division of Oil and Gas
Fountain Square
Columbus, Ohio 43224
(614) 265-6916
Ohio Department of Natural Resources
Division of Soil and Water Districts
Fountain Square
Columbus, OH 43224
(614) 265-6610
Environmental Protection Agency
Office of Wastewater Pollution Control
361 East Broad Street
Columbus, OH 43215
(614) 466-7427
Environmental Protection Agency
Ohio Central Office
P.O. Box 1049
361 East Broad Street
Columbus, Ohio 43216-1049
(614) 466-8565
Environmental Protection Agency
Division of Water Quality
Ground Water Quality Monitoring
and Assessment
Ground Water Section
361 East Broad Street
Columbus, Ohio 43216-1049
(614) 466-8565
Environmental Protection Agency
Legal Records Section
361 East Broad Street
Columbus, OH 43215
(614) 466-6037
Environmental Protection Agency
Office of Air Pollution Control
361 East Broad Street
Columbus, OH 43215
(614) 466-6116
Environmental Protection Agency
Office of Hazardous Materials Management
361 Broad Street
Columbus, OH 43125
(614) 466-8565
State Fire Marshal's Office
Department of Commerce
8895 East Main Street
Reynoldsburg, Ohio 43068
(614) 864-5510
Secretary of State
Corporation Division
30 East Broad Street
State Office Tower
Columbus, OH 43215
(614) 446-3910
Secretary of State
UCC Division
30 East Broad Street
State Office Tower
Columbus, OH 43125
(614) 466-3623
H-23
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OKLAHOMA
Environmental Health Services
Department of Health
10th and Stonewall
Oklahoma City, OK 73152
(405) 271-5204
Department of Health
Air Quality Services
1000 Northeast 10th Street
P.O. Box 53551
Oklahoma City, OK 73152
(405) 271-5220
Uniform Commerical Code
County Clerk
320 Robert S. Kerr Ave., Room
Oklahoma City, OK 73105
(405) 236-2777, Ext. 402
141
Water Resources Board
P.O. Box 53585
1000 N.E. 10th, 12th Floor
Oklahoma City, Oklahoma 73152
(405) 271-2555
Secretary of State
Corporate Records Division
State Capitol Building, Room
Oklahoma City, OK 73105
(405) 521-3048
101
OREGON
Department of Energy
Energy Facility Siting Council
Labor and Industrial Relations Bldg.
Room 102
Salem, Orgon 97310
(503) 378-4040
Department of Environmental Quality
Solid Waste Division
522 S.W. 5th Avenue
P.O. Box 1760
Portland, Oregon 97207
(503) 229-5913 and 6015
Department of Environmental Quality
Water Quality Control Division
1234 S.W. Morrison Street
Portland, OR 97205
(503) 229-5324 or 6474
Department of Environmental Quality
Air Quality Control Division
P.O. Box 1760
1234 S.W. Morrison Street
Portland, OR 97207
(503) 229-5397
Department of Geology and Mineral
Industries
910 State Office Building
1400 S.W. Fifth Avenue
Portland, OR 97201
(503) 229-5580
Department of Land Conservation and
Development
1175 Court Street, N.E.
Salem, OR 97310
(503) 378-4926
Secretary of State
UCC Division
Capitol Building, Room 132
Salem, OR 97310
(503) 378-4146
State Corporation Commission
Commerce Building
Salem, OR 97310
(503) 378-4166
H-24
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PENNSYLVANIA
Department of Environmental Resources
P.O. Box 1467
Harrisburgh, PA 17120
(717) 787-6640
Department of Environmental Resources
Bureau of Air Quality and Noise Control
P.O. Box 2063, Fulton National Building
Harrisburg, PA 17120
(717) 787-9702
Department of Environmental Resources
Division of Solid Waste Management
Bureau of Land Protection
P.O. Box 2063
Harrisburg, Pennsylvania 17120
(717) 657-4588
Department of State
Corporation Bureau
North Office Building, Room 308
Harrisburg, PA 17120
(717) 787-3006
Department of Environmental Resources
Bureau of Water Quality Management
P.O. Box 2063, Fulton Building
Harrisburgh, PA 17120
(717) 787-2666
Department of Environmental Resources
Division of Compliance and Monitoring
P.O. Box 2063
Harrisburgh, PA 17120
(717) 787-6239
RHODE ISLAND
Department of Environmental Management
Division of Water Resources
209 Cannon State Health Building
75 Davis Street
Providence, Rhode Island 02908
(401) 277-2797
Department of Environmental Management
83 Park Street
Providence, RI 02903
(401) 277-2771
Department of Environmental Management
Division of Air and Hazardous Materials
204 Cannon State Health Building
75 Davis Street
Providence, RI 02908
(401) 277-2797
Secretary of State
Corporation Department
State House, Room 219
Providence, RI 02903
(401) 277-3040
Secretary of State
Division of UCC
State House, Room 18
Providence, RI 02903
(401) 277-2521
Department of Environmental Management
Division of Land Resources
Solid Waste Management Program
75 Davis Street
Providence, RI 02908
(401) 277-2797
H-25
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SOUTH CAROLINA
Department of Health & Environmental
Control
Bureau of Wastewater & Stream
Quality Control
2600 Bull Street
Columbia, SC 29201
(803) 758-3877
Department of Health & Environmental
Control
Bureau of Air Quality Control
2600 Bull Street
Columbia, SC 29201
(803) 758-5406
Department of Health and Environmental
Control
Bureau of Solid and Hazardous Waste
Management
2600 Bull Street
Columbia, South Carolina 29201
(803) 758-5681
Water Resources Commission
P.O. Box 4440
3830 Forest Drive
Columbia, South Carolina, 29240
(803) 758-2514
Department of Health and Environmental
Control
Ground Water Protection Division
Facility Impact Analysis Section
2600 Bull Street
Columbia, South Carolina, 29201
(803) 758-5213
Department of Health & Environmental
Control
Environmental Quality Control
2600 Bull Street
Columbia, SC 29201
(803) 758-5450
Secretary of State
Corporation Division
P.O. Box 11350
Columbia, SC 29211
(803) 758-2744
Secretary of State
UCC Division
P.O. Box 11350
Columbia, SC 29211
(803) 758-2744
SOUTH DAKOTA
Department of Water and Natural
Resources
Office of Water Quality
Joe Foss Building
Pierre, SD 57501
(605) 733-3351 or 4523
Department of Water and Natural
Resources
Solid and Hazardous Waste Program
523 East Capitol Avenue
Joe Foss Building
Pierre, SD 57501-3181
(605) 733-3151
Department of Water and Natural
Resources
Division of Air Quality & Solid Waste
Joe Foss Building
Pierre, SD 57501
(605) 733-3329
Secretary of State
Corporation Division
State Capitol Building
Pierre, SD 57501
(605) 733-3537
H-26
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SOUTH DAKOTA (cont'd)
Secretary of State
UCC Division
State Capitol Building
Pierre, SD 57501
(605) 733-3537
TENNESSEE
Department of Health and the Environment
Division of Solid Waste Management
TERRA Building
150 Ninth Avenue
North Nashville, Tennessee 37219
(615) 741-3424
Department of Public Health
Bureau of Environmental Health Service
Division of Air Pollution Control
Capitol Hill Building, Room 256
Nashville, TN 37219
(615) 741-3931
Department of Public Health
Bureau of Environmental Health Service
Division of Water Quality Control
Cordell Hull Building, Room 621
Nashville, TN 37219
(615) 741-2275
Secretary of State
Commerical Code Division
Central Services Building, Cl-100
Nashville, TN 27219
(615) 741-3276
Secretary of State
Records Section
Central Services Building, Cl-101
Nashville, TN 37219
(615) 741-2286
TEXAS
Air Control Board
6330 Highway 290 East
Austin, TX 78723
(512) 451-5711 (Ext. 354)
Attorney General's Office
Environmental Protection Division
P.O. Box 12548
Capitol Station
Austin, TX 78711
(512) 475.-4143
General Land Office
Stephen F. Austin Building
1700 North Congress Avenue
Austin, TX 78701
(512) 475-2071
Secretary of State
Certifying Division
Sam Houston Bldg., 6th Floor
Austin, TX 78711
(512) 475-2916
H-27
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TEXAS (cont'd)
Department of Health
Division of Solid Waste Management
1100 West 49th Street
Austin, TX 78756-3199
(512) 458-7271 or 7111
Department of Water Resources
Solid Waste Section
1700 No. Congress Avenue
P.O. Box 13087
Capitol Station
Austin, TX 78711
(512) 475-6658
Secretary of State
UCC Division
P.O. Box 12887
Capitol Station
Austin, TX 78711
(512) 475-3457
Texas Water Commission
Publications Distribution
P.O. Box 13087
Capitol Station
Austin, TX 78711
(512) 475-4211 and 475-7841
UTAH
Bureau of Solid and Hazardous Waste
State Office Building, 4th Floor
Salt Lake City, Utah 84110
(801) 533-4145
Bureau of Water Pollution Control
Environmental Health Services Branch
P.O. Box 2500
150 West North Temple, Suite 410
Salt Lake City, UT 84110
(801) 533-6146
Environmental Health Services Branch
P.O. Box 2500
150 West North Temple, Suite 426
Salt Lake City, UT 84110
(801) 533-6121
Bureau of Air Quality
Environmental Health Services Branch
P.O. Box 2500
150 West North Temple, Suite 420
Salt Lake City, UT 84110
(801) 533-6108
Department of Health
Division of Environmental Health
150 West North Temple
P.O. Box 45500
Salt Lake City, Utah 84145-0500
(801) 533-4145
State Water Pollution Committee
State Division of Health
44 Medical Drive
Salt Lake City, Utah 84113
(801) 582-7844
Secretary of State
State Capitol Building, Room 203
Salt Lake City, UT 84114
(801) 533-6044
H-28
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VERMONT
Agency of Environmental Conservation
Department of Water Resources and
Environmental Engineering
Environmental Engineering Division
State Office Building
Montpelier, VT 05602
(802) 244-8755
Agency of Environmental Conservation
Environmental Engineering Division
Solid Waste Section
State Office Building
Montpelier, VT 05602
(802) 244-8702
Department of Health
Division of Environmental Health
60 Main Street
Burlington, VT 05401
(802) 863-7220
Secretary of State
Corporations Office
Pavillion Building
Montpelier, VT 05602
(802) 828-2386
Secretary of State
UCC Office
109 State Street
Montpelier, VT 05602
(802) 828-2363
VIRGINIA
Council on the Environment
9th Street Office Building, Room 903
Richmond, VA 23219
(804) 786-4500
Department of Health
Division of Solid and Hazardous
Waste Management
109 Governor Street
Richmond, VA 23219
(804) 225-2667
Marine Resources Commission
Environmental Division
P.O. Box 756
2401 West Avenue
Newport News, VA 23607-0756
(804) 245-2811
Potomac River Fisheries Commission
222 Taylor Street
P.O. Box 9
Colonial Beach, VA 22443
(804) 224-7148
State Air Pollution Control Board
9th Street Office Building, Room 1106
Richmond, VA 23219
(804) 786-2378
Clerk's Office
State Corporation Commission
P.O. Box 1197
Richmond, VA 23209
(804) 786-3720
UCC Division
State Corporation Commission
P.O. Box 1197
Richmond, VA 23209
(804) 786-3689
State Water Control Board
2111 Hamilton Street
Post Office Box 1143
Richmond, VA 23230
(804) 257-0056
H-29
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WASHINGTON
Department of Ecology
Water Resources Management Division
Office of Water and Land Programs
Mail Stop PV-11
Olympia, Washington 98504
(206) 459-6000
Department of Ecology
Air Resource Division
Mail Stop PV-11
Olympia, WA 98504
(206) 753-0211
Department of Licensing
UCC Division
P.O. Box 9660
Olympia, WA 98504
(206) 753-2523
Department of Ecology
Hazardous Waste Section
Mail Stop PV-11
Olympia, WA 98504
(206) 459-6000/6305
Department of Natural Resources
Division of Marine Land Management
Public Lands Building #12
Olympia, WA 98504
(206) 753-5317
Department of Ecology
Shoreline Division
Coastal Management Section
Olympia, WA 98504
(206) 459-6777
Secretary of State
Corporate Division
Legislative Building
Mail Stop AS22
Olympia, WA 98504
(206) 753-7115
WEST VIRGINIA
Air Pollution Control Commission
1558 Washington Street East
Charleston, WV 25305
(304) 348-2275
Attorney General's Office
Environmental Protection Division
W-435 State Capitol
Charleston, WV 25305
(304) 348-2522
Department of Mines
Office of Oil and Gas
1613 Washington Street, East
Charleston, WV 25311
(304) 348-2055
Department of Natural Resources
Division of Water Resources
Hazardous Waste/Ground Water Branch
1205 Greenbrier Street
Charleston, WV 25305
(304) 348-7861 or 5935
Secretary of State
Corporation Division
State Capitol
Charleston, WV 25305
(304) 342-8000
Secretary of State
UCC Division
State Capitol
Charleston, WV 25305
(304) 348-2112
H-30
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WEST VIRGINIA (cont'd)
Department of Natural Resources
Water Resources Division
1201 Greenbriar Street
Charleston, WV 25311
(304) 348-2107
WISCONSIN
Department of Natural Resources
P.O. Box 7921
101 South Webster Street
Madison, Wisconsin 53707
(608) 266-3084 or 7718
Department of Natural Resources
Bureau of Air Management
4610 University Avenue, 12th Floor
Madison, WI 53707
(608) 266-7718
Department of Natural Resources
Bureau of Natural Resources
Regulation and Zoning
P.O. Box 7921
101 South Webster Street
Madison, Wisconsin 53707
(608) 226-2121
Department of Natural Resources
Bureau of Solid Waste Management
4610 University Avenue
P.O. Box 7921
Madison, Wisconsin 53707
(608) 266-3084
Department of Natural Resources
Bureau of Water Quality
4610 University Avenue, llth Floor
P.O. Box 7921
Madison, WI 53707
(608) 266-3910
Department of Natural Resources
Division of Environmental Standards
4610 Unversity Avenue
Madison, WI 53707
(608) 266-1099
Secretary of State
Corporation Division
244 West Washington Avenue
Madison, WI 53702
(608) 266-3590
Secretary of State
UCC Division
244 West Washington Avenue
Madison, WI 53702
(608) 266-3087
WYOMING
Department of Environmental Quality
Division of Air Quality
122 West 25th Street
Cheyenne, WY 82002
(307) 777-7391
Office of State Oil and Gas Supervisor
123 South Durbin
P.O. Box 2640
Casper, WY 82602
(307) 234-7147
H-31
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WYOMING (cont'd)
Department of Environmental Quality Secretary of State
Water Quality Division Corporation Division
Herschler Building, 3rd Floor State Capitol, Room 110
122 West 25th Street Cheyenne, WY 82002
Cheyenne, Wyoming 82002 (307) 777-7370
(307) 777-7534 or 7781
Department of Environmental Quality
Division of Solid Waste Management
401 West 19th Street
Cheyenne, Wyoming 82002
(307) 777-7752
H-32
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Appendix I
Sample Reports
-------
APPENDIX I
SAMPLE REPORTS
Every PRP search report is different with respect to content and, to a lesser
extent, organization. The reports differ for several reasons: (1) the history of every
site is different; (2) the requirements of each report are different; (3) the individuals,
contractors, and government staff who investigate the site and write the reports are not
the same for every site.
Attached are various examples of PRP search reports. The examples are sections
or subsections of larger reports. Because these reports are enforcement- confidential,
the names of PRPs, individuals, and places have been replaced with fictitious names.
The case studies are briefly described below.
Example Description
1 TYPICAL PRP SEARCH
The first example represents a PRP search on a public town dump with
many PRPs. This report includes most of the different types of tasks
involved in a PRP search (that is, title search, PRP search, and
corporate status/financial assessment).
2 TYPICAL PRP SEARCH
This example represents an investigation of a private sanitary landfill
and includes most of the different types of tasks in a PRP search. This
report differs from Example 1 in two respects:
The information is organized differently.
The method of referencing the collected data is different.
This report is complete except for Appendix A (partial references) and
the other appendices.
1-1
-------
COMPLETE TITLE SEARCH
This example represents a report which included only a title search.
The history of ownership is explained with numerous figures.
PARTIAL TITLE SEARCH
This example is a title abstract from a larger report showing another
method of depicting chain-of-title information.
CORPORATE STRUCTURE/FINANCIAL ASSESSMENT
A corporate structure/financial assessment is shown in Example 5. This
example was taken from a larger report and is more detailed than the
same sections of a general PRP report.
FINANCIAL ASSESSMENT
This example is also of a financial assessment and is presented because
of the unique way in which the financial standing of a company was
analyzed through business ratios.
RECORDS COMPILATION/TRANSACTIONAL DATABASE
Example 7 is a report that includes a records compilation and a
transactional database. Data from a records search were compiled into a
computerized bibliographic database summarizing all hazardous waste
transactions related to a specific site.
GENERATOR RANKING
This example is also from a transactional database used to produce a
generator ranking. The sample shows three of the reports that were
produced from the records compilation.
INTERVIEW SUMMARIES
Example 9 illustrates a different way to present interview summaries.
1-2
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Example 1
Typical PRP Search
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TABLE OF CONTENTS
Page
1.0 INTRODUCTION 1-1
1.1 Scope of Work 1-1
1.2 Site Background 1-1
1.3 Approach 1-2
2.0 HISTORY OF THE SITE 2-1
2.1 Title Search Findings 2-1
2.2 Operational and Regulatory History 2-1
2.3 Historical Sampling and Hazardous Constituents 2-7
2.4 Disposal of Industrial Wastes 2-9
2.5 Residential/Commercial Users 2-9.
3.0 POTENTIALLY RESPONSIBLE PARTIES 3-1
3.1 Generators 3-1
3.2 Haulers 3-7
3.3 Site Owners 3-8
4.0 U NCONFIRMED POTENTIALLY RESPONSIBLE PARTIES 4-1
5.0 FINANCIAL ASSESSMENT 5-1
5.1 Generators 5-1
5.2 Haulers 5-24
5.3 Site Owners 5-25
6.0 SUMMARY AND RECOMMENDATIONS 6-1
REFERENCES
TABLES
1. State and Local Officials Interviewed 1-3
2. Local Residents Interviewed 1-4
3. Industries Using the Frankfurt Dump from 1960 to 1979 3-2
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TABLE OF CONTENTS (continued)
Page
4. Closed Industries Using the Frankfurt Dump from
1960 to 1979 3-3
5. Unconfirmed Potentially Responsible Parties 4-2
6. Portion of Balance Sheet for Clancey Corporation 5-4
7. Portion of Balance Sheet for Lock Containers Division 5-7
8. Financial Data for Zangoma, Inc. 5-10
9. Portion of Balance Sheet for Julino, Inc. 5-13
10. Portion of Balance Sheet for Unichem, Inc. 5-16
11. Portion of Consolidated Income Account for Unichem, Inc. 5-17
FIGURE
1. Frankfurt Dump Site Location 2-2
APPENDICES
A. Summary of Interviews
B. List of Knowledgeable People Not Interviewed
C. Registered Agents
ATTACHMENTS
1. File Documents
2. Title Search Documents
3. Financial Assessment Documents
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1.0 INTRODUCTION
1.1 Scope of Work
M & M Environmental Conservation, Inc. received a work assignment from
EPA Region 15 to perform a potentially responsible party search on the
Frankfurt Dump located in Mayville County, Illinois. The purposes of this
responsible party search were to conduct a title search of the property,
identify parties potentially responsible for past disposal of wastes at the
site, identify the level of involvement for each potentially responsible party
by obtaining information on the types and quantities of wastes disposed of
at the site, and assess the current financial status of the potentially
responsible parties.
1.2 Site Background
The Frankfurt Dump, located on Manchester Road in Mayville County, is
presently inactive, except that the site continues to receive sawdust and
tree and brush refuse for disposal by open burning (Minoltan, 1985).
Wastes from the surrounding residential, commercial, and industrial
generators were brought to the landfill starting in the early to mid-1960s
and continued until the latter part of 1979 (Minoltan, 1985). The Illinois
Department of Health and Environment, Division of Solid Waste Management
ordered the landfill closed after lengthy delays in beginning operations of a
substitute landfill and solid waste incinerator.
The Frankfurt Dump was owned and operated by the City of Frankfurt
during the landfill's operational years. The city remains the owner of the
property. Wastes generated throughout the city and county were
transported to the dump by private residents, commercial haulers, private
industries and the City of Frankfurt (Carter, 1985). The Frankfurt Dump
was identified as a Superfund site on the National Priorities List released
by EPA on December 10, 1983. This designation was based on the
hydrogeologic setting in which the site is located and the analytical results
of water and sediment samples taken on April 6, 1982, which showed
elevated levels of lead and phenol (Truth, 1985).
1-1
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1.3 Approach
The initial task of this work assignment was to contact knowledgeable state
and local officials to gather information concerning the landfill and
potentially responsible parties. Table 1 lists the officials interviewed.
Due to the limited files concerning the Frankfurt Dump at the Region 15
office, state and local files were duplicated and submitted to EPA as
documentation to support this potentially responsible party search. Copies
of documents referenced in this report are included in Attachment I.
Telephone and personal interviews of persons knowledgeable of this site
were conducted to gather information concerning the landfill and potentially
responsible parties. Table 2 lists the persons contacted for this task. A
summary of the interviews of state and local officials and local residents is-
provided in Appendix A. Appendix B contains a list of additional persons
who may have information on the site; however, repeated attempts by M &
M to contact these persons were unsuccessful.
Title information on the property was obtained from Charles and Mike,
Attorneys at Law, a law firm in Frankfurt, Illinois. Attachment II contains
copies of all recorded documents since 1956; certified copies of the deeds; a
copy of the tax map obtained from the Mayville County Tax Assessor's
office; and a title opinion from the referenced law firm.
Corporate status and financial information on the potentially responsible
parties were obtained from Dun and Bradstreet's computerized data base;
Moody's Municipal and Government Manuals; and the Illinois Secretary of
State (Records Section). Copies of the Dun and Bradstreet Reports and
State Financial Reports are provided in Attachment III.
1-2
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Table 1. State and Local Officials Interviewed
Name
Mr. Mike A. Wallace
Mr. Phil Smith
Ms. Myrna Minoltan
Mr. Tom Mitchell
Mr. Eddy Lambert
Ms. Regina F. Jackson
Ms. Jean Johnson
Mr. Robert Wallace
Mr. Raymond Davis
Mr. Thomas S. Milton
Mr. Charles Wright
Telephone
(111)760-0462
(111)762-3472
(111)956-3672
(111)771-3016
(111)771-3620
(111)771-2125
(111)771-2129
(111)771-3675
(111)771-2242
(111)771-3679
(111)762-3627
Position
Mayor of Frankfurt,
Illinois
Former Chief of Frankfurt
Fire Department
Environmental Specialist,
Illinois Division of Air
Pollution Control, Department
of Health and Environment
Environmental Engineer,
Illinois Division of Air
Pollution Control, Department
of Health and Environment
Chief of Section 1067,
Illinois Division of Solid '
Waste Management, Department
of Health and Environment
Former Environmental Engineer,
Illinois Division of Solid
Waste Management, Department
of Health and Environment
Former Senior Geologist,
Dlinois Division of Solid
Waste Management, Department
of Health and Environment
Former City Manager of
Frankfurt, Illinois
Chief of Permitting Section,
Illinois Division of Solid
Waste Management, Department
of Health and Environment
Environmental Specialist,
Illinois Division of Solid
Waste Management, Department
of Health and Environment
Chief of Superfund Section,
Illinois Division of Solid
Waste Management, Department
of Health and Environment
1-3
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Table 1. (Continued)
Name
Mr. Earl Gibson
Mr. Harold Falls
Mr. Richard Brown
Mr. James Carter
Telephone
(111)956-2572
(111)956-6003
(111)975-3672
(111)771-3919
i
Position
Chemist, Dlinois Division
of Solid Waste Management,
Department of Health and En-
vironment
Chief of Enforcement Section,
Illinois Division of Solid
Waste Management, Department
of Health and Environment
Environmental Specialist,
Illinois Division of Solid
Waste Management, Department
of Health and Environment
Environmental Specialist,
Mayville County Health De-
partment, Illinois Division-
of Solid Waste Management,
Department of Health and En-
vironment
1-4
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Table 2. Local Residents Interviewed
Name Telephone
Mr. Steven Bracy No Phone
Dr. Lee Ward (111)760-3474
Mr. Keith Moore (111)956-3620
Mr. Kenneth Porch (111)771-4020
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2.0 HISTORY OF THE SITE
2.1 Title Search Findings
The legal description of the property known as the Frankfurt Dump is
provided in Attachment II. The owner of the Frankfurt Dump during its
operational years, 1964 to 1979, has been identified as the City of
Frankfurt. This 20-acre property was used as a rock quarry before the
city bought it. It appears that the city has not sold any part of the
approximately 20 acres since it was originally acquired in 1964. Figure 1
shows the location of the landfill owned by the City of Frankfurt (Charles
and Mike, 1985).
The chain of title since 1956 is as follows:
The City of Frankfurt acquired the Realty of Deed from Mr. S.W. Webb and
his wife, Ronda Webb, as recorded on August 21, 1964.
Mr. and Mrs. Webb acquired the property from the Mayville County
Highway Department and Mayville County by deed as recorded on December
28, 1960.
MayviTle County Highway Department and Mayville County acquired the
Realty by Deed from Mr. P. S. Barnett and his wife, Sandra Barnett, as
recorded on April 25, 1956.
2.2 Operational and Regulatory History
i
The Frankfurt Dump was used as a general solid waste disposal site during
its operational years. No censoring or discrimination of influent waste
occurred. The general public, industrial, commercial, and residential
persons were not restricted as to the types of wastes they could place in
the landfill (Carter, 1985). Since the dump was the only, public disposal
site in the county from 1964 to 1979, the Frankfurt Dump may have served
all residents of Mayville County. However this has not been confirmed.
2-1
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i
Note: This figure has
purposely been removed.
Figure 1: FRANKFURT DUMP
MAYVILLE COUNTY
SCALE 1:24000
2-2
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A former limestone quarry, the Frankfurt Dump was known as the
Manchester. Tract, Tract No. 3 of the Robert M. Johnson Property (County
Register, MayviTle County, niinois, 1956). Prior to receiving wastes, the
site contained two separate bodies of water. The southern body of water is
presently completely filled with wastes and covered with dirt (Smith, 1985).
The northern body, which was the original quarry, was approximately 500
feet square and averaged 15 feet deep (Kemper, 1973). Currently, about
80 percent of this area has been filled with wastes and dirt. The northern
end is the deepest area of the original quarry and is still open (Health
Environment, Inc., 1982).
The Illinois Solid Waste Disposal Act, ICA 53-4301 to 53-4315 and 53-4321,
empowered the Commissioner of the Illinois Department of Public Health
(IDPH) to adopt and enforce rules and regulations for the construction of
new solid waste disposal facilities and sites and the alteration of existing
solid waste disposal facilities and sites on and after July 1, 1970. Under
this same act, the commissioner was further empowered to adopt and enforce
rules and regulations governing the operation and maintenance of solid
waste disposal facilities, operations, and sites on and after July 1, 1972
(Illinois Code Annotated, 1969). Prior to passage of this act, the
construction and operation of solid waste disposal facilities was primarily at
the discretion of those who owned and operated such facilities (Davis,
1985).
On July 20, 1973, Mr. Mark Kemper, an environmental geologist employed
by the Division of Solid Waste Management, IDPH visited the Frankfurt
Dump for the purposes of preparing a geologic review and obtaining water
samples. His review, dated July 23, 1973, stated that "the site is
definitely not suitable for use as a sanitary landfill due to the lack of soil
as cover material and buffer zone for filtration purposes." He added,
"large amounts of contaminated water may be entering fractures in bedrock
and eventually Danvis Creek and/or wells that exist within l-2 to 1 mile or
more away." He also noted that "residue of burned refuse and raw refuse
2-3
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is inundated by the water. Oil and other floating debris (sawdust among
others) floats on this body of water. Gas bubbles are present. No
evidence of fish or other aquatic life exists in the water." He concluded
that this site had no future for use as a sanitary landfill (Kemper, 1973).
On August 16, 1973, Mr. Raymond Davis, an employee of the Division of
Solid Waste Management, IDPH reported visiting the Frankfurt Dump to
investigate a report that the dump was burning. In his report, Mr. Davis
described observing a truck owned by Lockland Corporation, Inc., a
company that contracts for solid waste removal, dumping a load of hospital
waste into the fire (Davis, 1985).
On August 21, 1973, the Illinois Department of Public Health, filed a lawsuit
in Mayville County Chancery Court (Mayville Chancery No. 3060) to bring
the City of Frankfurt into compliance with the Illinois Solid Waste Dispos-al
Act.
Subsequently, the city proposed to the Illinois Department of Public Health
a plan to comply with the law by building and operating a solid waste
incinerator. The city further proposed to the state a plan for the interim
maintenance and final closure of the dump. This plan would allow the city
sufficient time to economically comply with the Illinois Solid Waste Disposal
Act while completing construction of its solid wa<;te incinerator. In
addition, the city proposed hauling the noncombustible ash produced by the
incinerator to a registered sanitary landfill. The Mayville County Chancery
Court was informed of the city's proposal in the summer of 1974. Shortly
thereafter, the court ordered the city to provide the State of Illinois,
Department of Public Health, with plans and specifications for the proposed
incinerator. In early 1975, those plans were approved by the state.
In addition to violating the state solid waste disposal laws at this time, the
Frankfurt Dump was operating in violation of the Illinois Air Pollution
Control Regulation by operating a source without a permit and openly
burning waste. Numerous violations had been filed in the state's Air
Pollution Control Office (Illinois Division of Air Pollution Control, 1976).
2-4
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Several site inspections and meetings were held in the spring and early
summer of 1977 to discuss the city's progress toward abating the open
burning and beginning the closure process (Tindy, 1977). The city claimed
it was having trouble locating a suitable site for the new incinerator and
landfill.
By mid-August, the dty began closure operations by applying a soil
covering atop the waste. However, the burning continued (Illinois Division
of Solid Waste Management: Inspection Report, 1977a).
On October 29, 1977, Mr. John Wallace, an employee with Division of Solid
Waste Management IDPH, reported observing a private hauler burning
plastic wastes in the dump. These wastes were produced by Zangoma
Chemicals of Illinois. He also reported observing the private hauler,
Lockland Corporation, Inc., unloading wastes next to the open fire in the
dump (Illinois Division of Solid Waste Management: Inspection Report,
1977b).
The State of Illinois filed a motion on November 23, 1977 in the Mayville
County Chancery Court asking the court to order the dty to comply with
the closure requirements. This agreement was reduced to an agreed order
and entered on record in this cause on February 6, 1978. The agreed
order required the dty to extinguish all fires at the dump, to stop anyone
from setting fires, and to immediately extinguish any fires that do occur.
In addition, the dty agreed to submit an executed contract between the
dty and a registered landfill which would accept the ash and noncombus-
tible wastes and serve as a backup disposal system, or submit to the state
a potential site for a sanitary landfill to be operated by the dty. The
agreed order required the dty to submit the contract by February 1, 1978,
or submit the approvable site by April 1, 1978.
Due to the failure of the dty to provide the required contract or approv-
able site, a petition for contempt was filed in the Chancery Court for
Mayville County, and on May 12, 1978, the court ordered the dty to appear
in court for a show-cause hearing scheduled for June 5, 1978 (Chancery
Court for Mayville County, 1978a). The hearing continued until July 3,
2-5
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1978 (Mayvflle County Court, 1978b). At the hearing, the Court for
Mayville County found that the city was making reasonable efforts to obtain
an approvable sanitary landfill and was continuing to make progress in
constructing its solid waste incinerator. However, the city was ordered to
adhere to certain procedures in operating the landfill in order to minimize
the fire hazards (Mayville County Court, 1978c).
From mid-1978 to mid-1979, the dump was receiving dirt as waste cover and
no burning occurred. The dump was finally closed by the end of 1979
(Minoltan, 1985).
On March 3, 1982, a hazardous waste site inspection was conducted by the
U.S. EPA. Persons from the Division of Solid Waste Management, Illinois
Department of Health and Environment (name changed from Illinois
Department of Public Health) participated in this inspection led by the U.S.
EPA contractor, Health and Environment, Inc., under the Field Investiga-
tion Team Program. The site inspection determined that a field investiga-
tion was necessary. Health and Environment submitted the results of
investigations and sampling they conducted on April 6, 1982 in a report
dated December 20, 1982. This report indicated that elevated concentra-
tions of lead, manganese, phenol, and various other organic and inorganic
compounds were present at the site (Health and Environment, 1982).
The U.S. EPA identified the Frankfurt Dump as a Superfund site on the
National Priorities List released on December 10, 1982 (Truth, 1983).
In April 1984, the Illinois Division of Solid Waste Management, met with the
City of Frankfurt to discuss the city's knowledge and participation in the
dumping of waste at the Frankfurt Dump. During that meeting, the state
requested the city to produce a list of industries who used the dump from
1960 through 1979 (Bailey, 1984). The city responded to the state's
request on May 1, 1984 by submitting a list of 29 industries that used the
dump between 1960 and 1979 and a list of 17 industries, now closed, that
used the dump during the same period of time (Fact, 1984).
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The Super-fund Section of the Division of Solid Waste Management, Illinois
Department of Health and Environment, mailed out survey forms to all 46
industries identified by the City of Frankfurt. A review of the state's files
showed that 26 industries responded, all stating that they did not dispose
of hazardous waste or substances at the Frankfurt Dump with the exception
of Taylor Corporation. This company reported disposing of four hazardous
substances at the dump. Included in Attachment I are the responses to the
survey.
In a letter dated June 25, 1984, the U.S. EPA was designated as the lead
agency for any future actions regarding the Frankfurt Dump (Illinois
Division of Solid Waste Management- Superfund Section, 1985).
2.3 Historical Sampling and Hazardous Constituents
Records obtained through a file search of the Illinois Department of Health
and Environment, Divisions of Solid Waste Management and Air Pollution
Control, and the Mayville County Health office show that the Lewisburg
Dump has been the subject of two sampling visits. The first occurred on
April 6, 1982 and was conducted by U.S. EPA Region 15 field investigation
team, Health and Environment, Inc. The results of the sampling analysis
were submitted to U.S. EPA Region 15 on December 20, 1982.
The second sampling visit was conducted by the Illinois Division of Solid
Waste Management on August 11, 1983. The purposes of this visit and
subsequent analyses were to confirm the findings of the previous analysis
and to further characterize the areas of potential migration from the fill
area.
The sampling plan for the first visit was relatively comprehensive involving
composite soil; lagoon water and sediment; on-site leachate water and soil;
and nearby spring, drainage ditch, and streams water and sediment
samples. The results of the inorganic analyses of water and soil/sediment
samples indicated elevated concentrations of lead at all sampling stations,
2-7
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with the exception of the drainage stream. Lead concentrations equaled or
exceeded levels specified in the National Interim Primary Drinking Water
Standards Criteria at several sampling points. Manganese exceeded the
water quality criteria at two locations. In addition, aluminum and iron
concentrations appeared to be high at all sampling locations.
Five organic compounds were detected at the site. These compounds
included phenol, toluene, chlordane, PCB-1242, and bis (2-ethylhexyl)
phthalate (Health and Environment, 1982).
The sampling plan for the second visit conducted by the State of Illinois
was designed to duplicate the sampling from the previous visit. Due to the
extremely dry conditions found at the site during the second visit, no
water samples could be obtained from nearby springs, drainage ditches, or
creek. Also, no leachate samples could be taken on the site. However,.
samples were obtained from the lagoon and from the surrounding fill area.
The results of the analyses for these samples indicated that all contami-
nants, with the exception of PCB, were significantly lower than the
previous analyses. It should be noted, however, that the confirmed values
for the contaminant PCB was below the regulatory limit of 50 ppm
(Forester, 1983).
Due to the generally non-industry-specific types of contaminants detected at
the site, and considering the wide diversity of influent wastes and refuse
generated throughout the county and potentially disposed of at the dump, it
is difficult to determine precisely all the industrial, commercial, or re-
sidential responsible generators. However, for these same reasons, it is
unreasonable to eliminate any parties within the Frankfurt Dump service
area. Therefore, all served parties may be potentially responsible parties.
Of the hazardous constituents detected at the site, lead and manganese
have received the most attention based on the file documents obtained from
the state (Illinois Division of Solid Waste Management, 1985). According to
the Illinois Division of Solid Waste Management - Superfund Section's
2-8
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Legislative Report, the estimated volume of waste contained in the Frankfurt
Dump is 138,888 cubic yards, of which approximately 1,388 cubic yards
contain hazardous waste. Furthermore, the report states that the types of
wastes of concern include paint, pickling liquor, and wood waste. At least
three pencil manufacturers in the Frankfurt service area have contributed
paint, lacquer, and wood waste to the dump. In addition to the pencil
manufacturers, a cosmetic company located within the service area has
repeatedly been mentioned during conversations and interviews with
knowledgeable parties. The constituents of concern also indicate that
industries dealing with metal and metal-coating operations would likely have
contributed to the contamination.
2.4 Disposal of Industrial Wastes
A number of specific industrial wastes have been identified as being.
disposed of at the dump. These wastes include sawdust; pencil leads
(probably graphite); paint residues and sludges; lacquer thinners; inks;
cosmetic powders; plastics; metal cuttings; waste wire; screws, nuts, bolts,
and scrap metal; and synthetic and leather shoe material cuttings. The
companies identified as possibly generating these wastes include: Mark
Pentel Corporation, Hard Ink and Pencil Corporation, M. R. Loose Pencil
Company, Labix, Inc., Zangoma Plastics, Inc., Lock Containers, Mars Die
Casting, Inc., Saturn Die Casting, Inc., Taylor Corporation, Illinois Metal
Corporation, Eastern Root & Penreco, Julino - Rockford and Frankfurt
(closed), Sacks Electric Company, U nichem-Frankfurt, and Perm Iron
Works. These industries are included here based on repeated references to
them by Mr. Steven Bracy and Mr. Keith Moore, Sr. Both individuals are
local residents claiming to have knowledge of the dump site and its
activities. Additional industries located and operating within Mayville
County have not been linked to the site at present. These additional
industries are identified in Section 4.0, Unconfirmed Potentially Responsible
Parties.
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2.5 Residential and Commercial Users
Since the Frankfurt Dump was open to all who wished to use the facility, it
is possible that several surrounding communities hauled their wastes to the
landfill. May-field County communities that were identified as possibly
contributing wastes are City of Rockford, MoonviTIe, Zionville, Deerfield,
and Lansing (Minoltan, 1985). These communities are very small and have
not been listed as potentially responsible parties because there is no
indication that they were involved in generating or transporting hazardous
or industrial-type wastes.
The City of Frankfurt provided waste disposal service to customers residing
within its limits. These customers consisted of private residences as well
as some small commercial establishments. There were occasions, however,
when the city hauled wastes for industries located within the city limits.
(Wallace, 1985).
The City of Frankfurt hauled wastes to the site. Mr. Daniel Knox hauled
sawdust and similar wastes for Labix, Inc. Lockland Corporation, a solid
waste resource/recovery firm located in Sutton County, Illinois, was
identified as hauling waste for the Taylor Corporation (Bracy, 1985).
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3.0 POTENTIALLY RESPONSIBLE PARTIES
The following are listed as potentially responsible parties based on
references in the documentation obtained from the state or county files,
documentation from the title search, or from information gathered during
interviews with individuals knowledgeable of the site. It is possible that
this list of potentially responsible parties is incomplete since activities at
this landfill occurred six to 20 years ago and no records were maintained
by the City of Frankfurt (Wallace, 1985). Most of the potentially
responsible parties listed below were not mentioned earlier in the site
history because the relationship between the site and the generator or
hauler is uncertain. The identified potentially responsible parties presented
below are grouped as generators, haulers, or owners.
3.1 Generators
As discussed in Chapter 2.0, Site History, the City of Frankfurt provided
the State of Illinois with a list of industries that used the dump during the
site's operational years (see Table 3) (City of Frankfurt, 1984). Based on
the documents obtained in the state and county files, little evidence exists
which links the industries listed in Table 3 with the Frankfurt Dump.
However, inspection reports, filed by the state, repeatedly reference
"pencil manufacturers" and "sawdust." There are four industries listed
below which manufacture pencils; they include Labix, Mark Pentel, Pearl
Pencil Company, and Hard Ink and Pencil.
Zangoma Plastics, Inc., Julino, Inc., and Taylor Corporation are the only
other industries specifically noted in any of the documentation reviewed in
this search.
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TABLE 3.
PRESENTLY ACTIVE INDUSTRIES USING THE FRANKFURT DUMP
FROM 1960 TO 1979
INDUSTRY YEARS USED
Saturn Die Casting 1977 - 1979
Milton Jones Manufacturing Co., Inc. 1960 - 1979
Labix 1964 - 1979
LaPorte, Inc. 1970 - 1979
M. F. Dailey 1960 - 1979
Sacks Electric Company 1960 - 1979
Mark Pentel 1960 - 1979
Julino, Frankfurt 1960 - 1979
Taylor Corporation 1960 - 1979
Safety Equipment 1963 - 1979
Frankfurt Machine Works, Inc. 1960 - 1979
Mayville Manufacturing 1969 - 1979
Sony Machine Works 1974 - 1979
Lock Containers 1975 - 1979
Pearl Pencil Company 1961 - 1979
North Printing Shop 1960 - 1979
Pioneer Machine Works, Inc. 1963 - 1979
Hard Ink & Pencil 1964 - 1979
National Paper Company 1977 - 1979
Unichem Frankfurt 1966 - 1979
Illinois Metal Corporation 1978 - 1979
Zangoma Plastics, Inc. 1972 - 1979
Mars Die Casting 1960 - 1979
Weathertamer, Inc. 1977 - 1979
Julino (Rockford) 1960 - 1979
Eastern Root 4 Penreco, Inc. 1961 - 1979
Perm Iron Works 1960 - 1979
Nando, Inc. 1960 - 1979
Frankfurt Materials, Inc. 1974 - 1979
3-2
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TABLE 4.
PRESENTLY CLOSED INDUSTRIES USING
THE FRANKFURT DUMP FROM 1960 to 1979
National Corporation
Wicks Homes, Inc.
Frankfurt Casting Company
The Pool Company
Frost Company
Cubbie Foods Company
Mayville County Bakery
White Mill
Frankfurt Footwear, Inc.
Red House, Inc.
The Island Company
Frankfurt Auto Parts
Frankfurt Tires
Mayville County Food Corp.
Knox Manufacturing Co.
P & T Industries
Frankfurt/Monroe Manufacturing Company
3-3
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A review of the State of Illinois, Division of Solid Waste Management's
1985 Hazardous Notification Summary yielded the following information
regarding wastes generated by four companies mentioned in Table 3. This
is the most current information available from the state. It is possible that
this information is not entirely accurate due to unreported changes in the
wastes generated by the industries.
Company Name
Wastes Generated
Code
Taylor Corporation
Trichloroethylene
1.1.1 Trichloroethane
Non-Halogenated Solvents
Paint Wastes
Waste water Treatment
Sludges from Electroplating
Operations
Waste Sulfuric Acid
Iron Phosphate
Zinc Phosphate
Trivalent Chromium
Waste Chromium
F001
FQ02
F005
D001
F006
D002
DOOO
DOOO
DOOO
D007
C
Labix
Mineral Spirits
Acetone
D001
F003
Mark Pentel
Ink Formulation Solvents
K086
Unichem Frankfurt Freon
Alcohol and Flux
F001
D001
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Of the companies identified by the City of Frankfurt (Table 3), the State
of Illinois -had no records to indicate that the companies listed below
ever notified any regulatory authority that they were a hazardous waste
generator, transporter, treater, storer, or disposer. Further investigation
of these companies is recommended. The address and telephone number for
each of these companies are provided below. This information was obtained
from the State of Illinois, Division of Solid Waste Management and the
Economic and Community Development office.
Milton Jones Manufacturing Company, Inc.
205 Green Ave.
Frankfurt, IL 60622
Telephone: (111)771-6021
LaPorte, Inc.
840 W. Wabash Ave.
Frankfurt, IL 60612
Telephone: (111)771-6002
M. F. Dailey
Morton Road
Frankfurt, IL 60625
Telephone: (111)771-6027
Safety Equipment
Evergreen Park
Frankfurt, IL 60225
Telephone: (111)771-4740
Frankfurt Machine Works, Inc.
202 North Avenue
Frankfurt, IL 60247
Telephone: (111)771-2462
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Mayville Manufacturing
Joliet Rd.
Frankfurt, IL 60622
Telephone: (111)771-1060
Sony Machine Works
Eastern Pkwy.
Frankfurt, IL 60622
Telephone: (111)771-3372
North Printing Shop
621 S. State
Frankfurt, IL 60622
Telephone: (111)771-3747
Pioneer Machine Works, Inc.
325 W. Western Ave.
Frankfurt, IL 60622
Telephone: (111)771-3676
National Paper Company
366 S. Monroe
Frankfurt, IL 60622
Telephone: (111)771-3600
Eastern Root and Penreco, Inc
260 E. Madison Ave.
Frankfurt, IL 60622
Telephone: (111)771-2078
Perm Iron Works
26 E. Mack St.
Frankfurt, IL 60622
Telephone: (111)771-7070
3-6
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Nando, Inc.
900 -S. Harrison St.
Frankfurt, IL 60622
Telephone: (111)771-6056
The companies listed below are presently closed. Attempts to obtain a past
address, telephone number, or name of an employee were unsuccessful
based on a review of the 1984 Directory of Illinois Manufacturers, the
Thomas Register, Standard and Poor's, and the Illinois Economic and
Community Development Business Files.
National Corporation
Wicks Homes, Inc.
Frankfurt Casting Company
The Pool Com pany
Frost Company
Cubbie Foods Company
Mayville Bakery
White Mill
Frankfurt Footwear, Inc.
Red House
The Island Company
Auto Parts
Frankfurt Tires
Mayville County Food Corporation
Knox Manufacturing Co.
P & T Industries
Frankfurt/Monroe Manufacturing Company
3.2 Haulers
The City of Frankfurt was the largest hauler of solid waste to the dump.
The waste consisted primarily of residential garbage, trash, brush, and
limbs. However, the city also hauled wastes from some industries located
within the city limits (Wallace, 1985). Other companies identified as
3-7
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waste haulers include some of the companies identified above as waste
generators. The parties that have been identified as having both generated
and transported their wastes to the Frankfurt Dump include Julino, Inc.,
Hard Ink and Pencil Corporation, Pearl Pencil Company, and Mark Pentel
Corporation.
Other haulers identified in this search include Lockland Corporation
(Monroe, Illinois) for the Taylor Corporation and Mr. Daniel Knox (private
individual) for Labix, Inc. Zangoma Plastics used a private hauler for
transporting their waste to the dump (Brown, 1977b). The hauler for
Zangoma Plastics was not identified in this search.
3.3 Site Owners
The site owner during the period of time that the site was receiving wastes
was identified in the title search as the City of Frankfurt. However, the
precise date on which wastes were first received by the landfill is
unknown. Conveyance documents indicate the property was sold to the
City of Frankfurt in 1964. However, a review of the list of industries
using the dump, as submitted by the City of Frankfurt, indicated that some
of the industries contributed wastes to the dump as early as 1960.
Attempts to confirm the date when wastes were first placed on site were
unsuccessful.
3-8
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4.0 UNCONFIRMED POTENTIALLY R ESPO N SIB LE P ARTIES
This section provides a list of companies that may have contributed wastes
to the Frankfurt Dump. Due to the lack of available information, the types
of waste generated by these companies are unknown. It is possible,
however, that some of the wastes generated from these companies were
hazardous and, if so, could have led to the present contamination of the
Frankfurt Dump. The companies listed in Table 5 were included in this
report because they cannot be eliminated as potentially responsible parties
at this time. Further investigation of these companies is recommended.
The following list of generators is a compilation of several lists of industries
obtained from various sources. Those sources are:
o 1984 Directory of Illinois Manufacturers
Published by InfoFllinois
o Illinois Division of Air Pollution -
Control File Index for Mayville County
o Illinois Division of Solid Waste
Management - Hazardous Waste List
of Regulated Sites
It should be emphasized that the companies usually found in these sources
are manufacturers that produce industrial wastes, as opposed to service-or
retail-type businesses which usually produce non-hazardous wastes.
This list is divided into three groups to categorize the industries according
to the likelihood of the generated waste streams being hazardous. This
division is based on information regarding the industry's products or
process/operation from Standard Industrial Classification Codes listed in the
1984 Directory of Illinois Manufacturers, source name/operation descrip-
tion listed with the Illinois Division of Air Pollution Control, interviews
of knowledgeable people, and the Illinois Division of Solid Waste
Management - Hazardous Waste List of Regulated Sites.
4-1
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The first group consists of those industries whose waste streams are most
likely to be hazardous. For the purposes of this report, this group is
designated "Most Likely."
The second group consists of those industries whose waste streams are least
likely to be hazardous. This group is designated "Least Likely."
The last group consists of those industries whose waste streams are
unknown and, therefore, cannot be categorized without more information on
the individual company. This group is designated "Waste Streams
U nknown."
4-2
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TABLE 5.
-UNCONFIRMED POTENTIALLY RESPONSIBLE PARTIES
Group 1. Most Likely
Morse Company
Frankfurt Casting Co., Inc. (closed)
Group 2. Least Likely
Sintra Company
Cermak Food Store
Morgan Nursing Home
Longlife Concrete
Scrap Metal, Inc.
Pat Mill
Winter Mill
Mayville County Dairy Store
Group 3. Waste Streams Unknown
Rubber Products Company, Inc.
Red Packaging, Inc.
Frankfurt Times, Inc.
Sumy Bicycle
Welder's Association
Morn's Hospital
Joliet Hospital
Vico Cargo, Inc.
Frank Road Builders, Inc.
Mayville County Health Department
Carol Hill, Inc.
Mayville County Board of Education
Green Bay Co.
Luna Food, Inc.
4-3
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Group 3. (continued)
U.S.A. Bottling Works, Inc.
General Hospital
Central Natural Gas Co.
Jordan Research Center
Korex Corporation
Lee Packaging
Father & Sons, Inc.
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5.0 FINANCIAL ASSESSMENT
The selection of potentially responsible parties for the following financial
assessments was based on several factors: the type of waste generated, the
evidence obtained during interviews and state and local government file
reviews, and the volume of waste generated by the industry.
The following information was obtained through the Dun and Bradstreet
computer data base, Moody's Industrial Manuals, and financial reports filed
with the Illinois Secretary of State, unless otherwise noted. These sources
were used to obtain information on selected potentially responsible parties;
in certain cases, financial information was unavailable from these sources.
The information collected on each company is provided in Attachment III.
The identified registered agents for these potentially responsible parties are
listed in Appendix C.
5.1 Generators
Taylor Corporation
The Taylor Corporation is a subsidiary of the Chancy Corporation.
The parent company owns 150 percent of the capital stock and has seven
other subsidiaries. The Taylor Corporation sells to the parent corporation
on 15-day terms. Chancy makes advances to the subsidiary as needed up
to $90,000,000. There are no blanket parent company guarantees or
endorsements. The manufacturing plant in Frankfurt is one of two plants
owned by Taylor Corporation.
The Taylor Corporation Frankfurt Manufacturing Plant is located at:
New York Avenue
P. 0. Box 320
Frankfurt, IL 60622
Telephone: (111)771-3336
5-1
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The company's vice president is Eddy Towns. Jack Nelson is the credit
manager.
The Taylor Corporation headquarters is located at:
6401 S. Houston Ave.
Lockport, IL 60622
Telephone: (111)371-7624
The chief executive is Frank M. Petty, President.
Other executives are:
James Mitchell Vice President
Willy Reynolds Vice President
Ronald Presley Vice President and Treasurer
George Presley Secretary
Dun and Bradstreet reports that on February 10, 1985 Ronald Presley
declined to submit a financial statement. However, he stated that sales for
1984 were $630,000,010. He also stated that sales for the fiscal year ending
December 31, 1984 were greater than for the same period in 1983. Profit
for the same period was also up. Efforts to obtain a balance sheet were
unsuccessful.
Chancy acquired majority stock interest in the Taylor Corporation,
Lockport, Illinois, in 1962. In 1977, Chancy increased its equit from 60
percent to 80 percent. In 1980, the remaining 20 percent of outstanding
common stock was acquired.
The Chancy Corporation reported to its stockholders net sales of
$4,122,363,004 for fiscal year ending December 31, 1984. Their head-
quarters are located at:
Glenview, IN 49022
Telephone: (132)675-1331
5-2
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Chancy officers are:
Mike Moore Chairman, President and CEO
Peter Webb Executive Vice President
J. R. Walsh Executive Vice President
Sandra Walsh Executive Vice President
A portion of a balance sheet dated December 31, 1984 is shown in Table 6.
Hard Ink and Pencil Corporation
Incorporated on July 2, 1964, Hard Ink and Pencil Corporation is a
manufacturer of wood and mechanical pencils, pens, and erasers. The
company is currently in good standing with the Illinois Secretary of State.
Provided in Attachment III is a copy of the current Certificate of Good
Standing for the Hard Ink and Pencil Corporation. The company employs
approximately 100 persons, and its general office is located at:
122 Marquette Avenue
Frankfurt, IL 60621
Telephone: (111)771-3459
The company president and owner of all stock is Jean Nelson. Robert
Smith is the vice president in charge of manufacturing, and Celia Scorpio is
the secretary and controller. This is an established business dating back
to 1929. The company owns a 170,000 sq. ft. one-story concrete block
building in good condition located in the industrial section of Frankfurt.
Sales for 1984 were $10,000,000. A current financial statement was not
available. Efforts to obtain a balance sheet were unsuccessful.
5-3
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Table 6. Portion of Balance Sheet for Chancy Corporation
.(x $1,000)
Assets:
Cash 4 short term investments $ 310,621
Receivables, net 199,476
Inventories 359,726
Prepaid expenses 34,719
Deferred income taxes 7,890
Total Current Assets 912,432
Land, buildings, equipment, etc. 613,886
Less: Depredation and amortization 226,975
Net Buildings, etc. 386,911
Investments 255,577
Other assets 10,095
Total $1,565,015
Liabilities:
Notes payable to banks
Accounts payable, accrued expenses, etc. $ 371,832
Income taxes 3,922
Long term debt due currently -
Total Current Liabilities 375,754
Product warranty 14,432
Debenture 3J$s, 1980
Debenture 5-3/4s, 1986 8,448
Debenture 9-5/8s, 2000 41,903
5J# notes, 1980
5h% 5.7% lease obligations 2,400
Subsidiary debt
Deferred Federal income tax 25,796
Minority int. in consol. subs.
Common stock ($1 par) 36,617
Paid-in surplus 32,620
Retained earnings 1.027,045
Total stockholders' equity $1,096,282
Total $1,565,015
5-4
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Lock Containers Division, Lock H. Corporation
Lock Containers is a division of the Lock H. Corporation. Incorporated in
Ohio on February 17, 1930, the Lock H. Corporation is an outgrowth of a
business founded in 1846. The Lock H. Corporation has more than 25
wholly owned subsidiaries located throughout the world and is primarily
engaged in the pulp and paper industry.
The Lock Container Division manufactures and sells standard and special
purpose corrugated shipping containers. These products are sold from 14
plants located in various areas of the United States, largely in the mid-
western and southern regions. The Frankfurt Plant is located at:
David Parkway
Frankfurt, IL 60622
Telephone: (111)771-3500
The division was established in 1975 and employs approximately 80 persons.
Managers of the plant include:
M. C. Baker General Manager
K. P. Harper Sales, Service Manager
L. T. Cagle Comptroller
The Lock H. Corporation is a large conglomerate with over 20,000 employees.
Sales for the year ending December 31, 1983 exceeded $2.7 billion, and the
corporation reports its worth at over $970 million. Gross profits were $642
million for 1984.
The company's annual report shows it has in place a revolving credit
agreement for up to $45 million. There was no borrowing under this
agreement in 1984. Dun and Bradstreet reports business trend is up and
condition strong.
5-5
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The corporate headquarters are located at:
Evergreen Place
Queens, WI 45463
Telephone: (602)331-6022
Lock's chief executive and chairman of the Board is Richard D. Lewis
Other executives include:
R. P. Davis President and Chief Operation Officer
P. W. Branson Senior Vice President; International
K. V. Lock Senior Vice President; Legal & General Counsel
Table 7 shows a portion of a balance sheet as of December 31, 1984.
5-6
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Table 7. Portion of Balance Sheet for Lock H. Containers Division
(x $1,000)
Assets:
Cash and short term investments $ 126,400
Notes and accounts receivable 313,700
Inventories 185,900
Prepaid insurance, taxes, etc. 23,600
Total Current Assets 649,600
Invest, in & adv. to jt.-owned cos. 382,900
Other investments & assets 121,400
Construction funds 58,700
Property, plant & equip. 1,691,300
Less: Depreciation reserve 699,000
Net property 1,051,000
Net assets of discont. oper. -
Total $2,204,900
Liabilities:
Accounts payable $ 298,100
Acer, interest, taxes, wages etc. 152,900
Installments on long tm. debt, curr. 25,400
Prov. for income taxes 23,100
Total Current Liabilities 499,500
Long term debt 531,200
Deferred items 203,800
$2.80 cum. conv. preferred (no par)
$2.80 cum. conv. pfd. (1968)(no par)
Common stock 184,100
Retained earnings 724,100
Additional paid-in capital 95,000
Foreign currency translation adj. dr32,800
Co.'s pro rata int. in shs. held by affil. -
Total stockholders' equity 970,400
Total $2,204,900
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Example 1
Pages 5-8 through 5-22 not included
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This facility is located at the following address:
1246 Wacker Street
Frankfurt, IL 60622
Telephone: (111)771-4677
Listed below are the corporate executives:
Clint White President, CEO
Mrs. M. F. Scalia Vice President
Sandra Burger Secretary
Richard Stark Production
Mike Wayne Purchasing
Charles Cosby Sales Marketing Engineer
John Kelly Personnel
Anthony Jones Manufacturing
Attempts to obtain additional financial information were unsuccessful.
5.2 Haulers
Two haulers were identified as potentially responsible parties. They are
Lockland Corporation and the City of Frankfurt. Mr. Daniel Knox, a
private individual, was referred to while interviewing Mr. Steven Bracy,
the nearest resident to the dump. A financial assessment was not
conducted on Mr. Knox due to the uncertainty of Mr. Bracy's statements
(Bracy, 1985). It is possible that there were other parties hauling wastes
to the dump during its operational years. However, this search did not
identify any additional haulers. The financial assessment for the City of
Frankfurt is provided in 5.3 of this report.
Lackland Corporation
Lockland Corporation is in the business of recovering scrap materials and
selling them for profit. These materials consist primarily of scrap metal.
5-23
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Incorporated in Illinois on March 27, 1970, the company was founded in 1913
by Jimmy Lockland. Present control and 100 percent of the capital stock is
owned by Lawrence Les. This succession took place in 1938. The company
is located at:
704 S. Western Avenue
Harvey, IL 60427
Telephone: (111)374-4441
The company employs 30 people at their 10,000 square foot, one-story steel
building, which serves as their headquarters. Sales for 1983, as reported
by Lawrence Les, President, were $7 million. He also stated that sales for
the 11 months ending November 30, 1984 were up compared to the same
period of 1983. Efforts to obtain additional financial information for this
company were unsuccessful.
5.3 Site Owner
The site owner has been identified as the City of Frankfurt, Illinois. The
city operated the landfill and disposed of the city's residential and
commercial refuse.
With a population of 8,760 in 1980, the City of Frankfurt is the county seat
of Mayville County.
As of June 30, 1983, the general improvements bonded debt for the City of
Frankfurt was $364,000. Water and sewer revenues were $2,300,000, while
natural gas revenues totalled $175,350. The incinerator debt was
$1,265,000 (Moody's, 1985).
The water and sewer bonds and the general obligation bonds are rated Baa
(Moody's, 1985).
Attachment III contains a copy of the financial data included in Moody's
Municipal and Government Manual.
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6.0 SUMMARY AND RECOMMENDATIONS
The objective of this work assignment, to search for and identify potentially
responsible parties, was completed by contacting state and local government
employees to determine their knowledge of the site and to locate pertinent
files. The pertinent files identified were reviewed to obtain additional
information. Persons other than government employees who were
knowledgeable of site activities were also contacted by M & M. A title
search was completed to identify the owners of the site. This report lists
the waste generators, waste haulers, and the site owner identified as being
potentially responsible for the contamination of the Frankfurt Dump.
Not all of the waste generators identified in this report have been
associated with hazardous waste. Due to the lack of waste analyses prior
to disposal at the landfill, many of the wastes disposed of at the site are
unknown. Only a few of the potential generators identified were listed as
hazardous waste generators in 1980 by the U.S. EPA. However, this does
not necessarily mean that each potential generator was producing the same
type of waste in 1980 as was being produced during the time of disposal
operations at the Frankfurt Dump (1960-1979).
The possibility of locating existing records maintained by the potentially
responsible generators, haulers, and owner should be investigated through
the use of CERCLA 104(e) claim letters. This information would be useful
in determining the extent of involvement for those parties identified by the
City of Frankfurt (Tables 3 and 4) as having used the dump. Further-
more, additional information should be obtained from Lockland Corporation
through the use of a similar claim letter since this company was identified
as a transporter of waste to the dump.
The majority of those individuals interviewed during the investigation have
repeatedly stated that most of the waste generated in Mayville County was
disposed of in the Frankfurt Dump. There are possibly additional
potentially responsible parties that were not identified by the sources
contacted or reviewed by M & M in this search.
6-1
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REFERENCES
INTERVIEWS:
Wallace, Mike A., 1985, Mayor of Frankfurt, Personal Interview (October
2).
Smith, Phil, 1985, retired Frankfurt Fire Department Chief, Personal
Interview (October 2).
Minoltan, Myrna, 1985, Environmental Specialist employed by the Illinois
Division of Air Pollution Control, Telephone Interview (September 23).
Bracy, Steven, 1985, nearest Resident to Site, Personal Interview (October
2).
Johnson, Jean, 1985, Former Geologist employed by the Illinois Division of
Solid Waste Management, Personal Interview (September 27).
Davis, Raymond, 1985, Chief of Permitting Section employed by Illinois
Division of Solid Waste Management, Personal Interview (August 15).
Carter, James, 1985, Environmental Specialist employed by the Mayville
County Health Department, Personal Interview (October 2).
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FILE DOCUMENTS:
TINDY, Jerome, 1977, employed with Illinois Division of Solid Waste
Management, Letter to Jim Jordan, City Manager. Re: Corrective measures
and site closure, (August 3).
COUNTY REGISTER, Mayville County, Illinois, 1956.
HEALTH AND ENVIRONMENT, INC., 1982, Field Investigations of
Uncontrolled Hazardous Waste. Site: FIT Project: Investigation Report,
Frankfurt Dump Site, Frankfurt, Illinois, (Decem ber 20).
WALLACE, Robert, 1983, Frankfurt City Manager, Letter to Diana Norman,
Division of Solid Waste Management (September 12).
KEMPER, Mark, 1973, Environmental Geologist with Illinois Department of
Public Health, Geologic Review of Frankfurt Dump, Mayville County, (July
23).
MAYVILLE COUNTY CHANCERY COURT, 1977, Civic Action No. 4387,
Motion submitted by Mr. Daniel Cook, Illinois Department of Public Health.
MAYVILLE COUNTY COURT, 1978a, Civil Action No. 4387, Petition for
Contempt submitted by R. Daniel Cook, Illinois Department of Public Health.
MAYVILLE COUNTY COURT, 1978b, Civil Action No. 4387, Show Cause
Order.
MAYVILLE COUNTY COURT, 1978c, Civil Action N. 4387 Order.
JORDAN, Moses, 1984, Frankfurt City Manager, Letter to Robert Bailey,
Director of Illinois Division of Solid Waste Management, (May 1).
ILLINOIS CODE ANNOTATED, 1969, Solid Waste Disposal Act, Sections
53-4301, 53-4315, 53-4321,
ILLINOIS DIVISION OF AIR POLLUTION CONTROL, 1976, Notice of Violation
issued by Neil Morean, Air Pollution Specialist, (September 30).
ILLINOIS DIVISION OF SOLID WASTE MANAGEMENT, 1977a, Inspection
Report prepared by Richard Brown, (August 15).
ILLINOIS DIVISION OF SOLID WASTE MANAGEMENT, 1977b, Inspection
Report prepared by Richard Brown, (Oct. 29).
ILLINOIS DIVISION OF SOLID WASTE MANAGEMENT - Superfund Section,
1985, Legislative Report.
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APPENDIX A
SUMMARY OF INTERVIEWS
-------
SUMMARY OF INTERVIEWS
Mr. Mike A. Wallace, current Mayor of the City of Frankfurt, stated that
he assumed that the list of industries using the dump as submitted to the
state was complete. He stated that, in generating the list, the city merely
took account of the industries in the city and county and produced the list.
The city kept no records of industries using the dump. He concluded by
stating that the local residents, Mr. Moore and Mr. Bracy, tend to obscure
any facts regarding the dump since they feel they may benefit by their
exaggerations. Mr. Wallace stated that the city hauled wastes primarily for
the residential and commercial customers located within the city limits.
However, there were times when the city provided this service to the city's
industries.
Mr. Phil Smith, retired Chief of Frankfurt Fire Department, stated that the
city owned and operated the site. The site contained two bodies of water
before everyone began dumping garbage there. The southern body was
used as a swimming hole and the northern was a fishing hole. The
southern body is now completely filled with wastes and covered with dirt.
He also stated that anyone may have hauled or generated wastes disposed of
in the dump. He did recall that a shoe factory from Rockford disposed of
their wastes at the dump. Mr. Smith stated that the lagoon was spring
fed. He recalled obtaining water from the lagoon to fight a fire in the
dump. Using a 1,500 gallon per minute fire pump, he pumped 24 hours a
day, every other day, for 30 days and did not significantly draw down the
lagoon water. Mr. Smith concluded by saying he thought the dump is now
cleaner than it has ever been.
Ms. Myrna Minoltan, Environmental Specialist, employed by the Division of
Air Pollution Control, State of Illinois, stated that the city owned the
property and that the local pencil companies were still dumping sawdust
there. She said the sawdust was probably burning and has issued Notice
of Violations for open burning of garbage. She indicated the new incinera-
tor began operation in 1980. A construction permit was issued in 1975.
She indicated the ash and noncom bustibles were to be disposed of in the
new landfill. She suspected that all companies in Mayvflle County dumped
A-l
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there and would be a potentially responsible party. She also suspected
that the. communities of Rockford, Moonville, Zionville, Deerfield, and
Lansing contributed wastes to the dump since they are located in Mayvflle
County. Based on her files, she said the old landfill was still operating in
September 1979. By January 24, 1980, the files showed the dump closed.
She stated that the incinerator was completed about 1981. She further
indicated that wood wastes are exempt from the open burning regulation and
that the state could not do anything if only sawdust was burning. She
concluded by saying that she lives in that area and cannot say definitely
which companies dumped wastes at the site.
Mr. Steven Bracy, local resident nearest the landfill, stated that the
landfill was open to the general public throughout the county, and he felt
that just about anyone could have placed wastes there. He recalled that
Lee Mover Company hauled wastes for the Taylor Corporation. Their
wastes were composed of skids, cardboard, paper, nuts, bolts, screws, and
waste metals. The waste metals were recovered for salvage sometime during
the operation of the landfill, but he could not recall when. He said the
Taylor Corporation contributed wastes to the dump throughout the landfill
operation. He also mentioned that Mr. Daniel Knox hauled sawdust for one
of the three pencil manufacturers located in Mayville County and the
company called Labix, which produces cosmetics and pencils. He recalled
that the pencil manufacturers disposed of waste paint and paint containers
(5-gallon buckets). He also stated that the shoe companies disposed of
waste leather and manmade shoe sole materials. Zangoma Plastics, a local
company, disposed of styrofoam wastes which were hauled by their own
trucks. Mr. Bracy also stated that he believed a truck was buried on-site
after being destroyed by fire while dumping wastes on site. This occurred
sometime between 1975 and 1977.
Mr. Tom Mitchell, Environmental Engineer with Division of Air Pollution
Control, State of Illinois, said that he did not have any specific information
concerning the responsible parties. He stated that the City of Frankfurt
installed an incinerator there in order to close out the dump and tee pee
burner. He has received many complaints about the smoke emanating from
A-2
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the site, and the companies that now burn their wastes at the incinerator
are probably the same companies that contributed wastes to the dump. He
recommended that I talk with Myrna Minoltan at the Regional Office in
Louisville.
Mr. Eddy Lambert, Chief of 1067 Section, State of Illinois, stated that
permitting of solid waste landfills started around 1972 and that possibly the
Frankfurt file located in the Division of Solid Waste Management, State of
Illinois, would contain an application and/or copy of the Frankfurt Permit.
He recommended interviewing Mr. Raymond Davis regarding the Frankfurt
Dump.
Ms. Regina F. Jackson, formerly employed with the State of Illinois as an
environmental engineer, stated that probably all the industries in the
county dumped at the site. She stated that while she was on the site she
saw pieces of lead similar to that used in pencils for marking. She also
saw paint and waste inks on the site. She believed that the pencil
manufacturers are potentially responsible parties. She stated that Lock
Containers was probably a potentially responsible party also. She said that
the site was closed by the state and that the Frankfurt Dump case was
turned over to the U.S. EPA on March 3, 1984. She indicated the site was
closed, but not officially. The site received a soil cap, seeding, and
planting.
Ms. Jean Johnson, former geologist employed by the State of Illinois,
conducted a geologic investigation of the site. She stated that while she
was employed with the state that she sent out and received responses to a
questionnaire. The questionnaire was used to contact industries in Mayville
County inquiring of their involvement with the Frankfurt Dump. The
surveyed industries were identified by the City of Frankfurt. She logged
in the responses which stated that all but one industry handled no
hazardous waste. She concluded by stating that the dump is probably not
officially closed.
A-3
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Example 1
Pages A-4 through A-7 not included
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APPENDIX B
LIST OF KNOWLEDGEABLE PERSONS
NOT INTERVIEWED
-------
The following persons were identified as possibly being knowledgeable about
the Frankfurt Dump. Initial attempts to locate or interview these persons
were not successful.
Mr. Joel Victory was identified during the review of the state files. Mr.
Victory is a past mayor of Frankfurt and resides at 224 Rocky Highland,
Frankfurt, IL 60609. Efforts to contact him at his home telephone
(111/771-6200) were unsuccessful.
Mr. Jack Bracy, was identified during the review of the state files. Mr.
Bracy was a city employee who worked at the dump for an unknown period
of time. The Frankfurt area directory assistance found no number listed
under this name.
Mr. Peter Nelson was identified during the interviews of Mr. Keith Moore
and Mr. Steven Bracy. Mr. Nelson is a local resident that may have
information that could identify additional potentially responsible parties.
Several telephone calls were placed to his home telephone at various times
of the day with no response. This number is (111)771/4624.
Mr. Robert H. Sagan was identified during the review of the state files.
Mr. Sagan is a past mayor of Frankfurt. Several telephone calls were
placed to his home telephone at various times of the day with no response.
This number is (111)771-3003.
Mr. Robert Fuller was identified during the review of the state files. Mr.
Fuller was a city employee who may have worked at the dump. The
Frankfurt area directory assistance stated that his telephone number is
unpublished.
Mr. Jimmy L. Jordan, was identified during the review of the state files.
According to Mr. James Carter, a local resident and an employee of the
Mayville County Health Department, Mr. Jordan is presently retired and
residing in Frankfurt. The Frankfurt area directory assistance found no
number listed under this name.
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Example 2
Typical PRP Search
-------
TABLE OF CONTENTS
Section Page
I. INTRODUCTION 1
A. Proj ect Background 1
B. Pro j ect Approach 1
C, Contacts 2
D. Site Related Records 4
II. DISCUSSION OF SITE 6
III. POTENTIALLY RESPONSIBLE PARTY INFORMATION 12
IV. CONCLUSIONS AND RECOMMENDATIONS 16
APPENDIX A: Documents Index
APPENDIX B: Interview Summaries
ATTACHMENT I: DNR and Payne County Health Department Records
ATTACHMENT II: U.S. EPA Records
ATTACHMENT III: Title Documents
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Draft PRP Report
Payne Disposal Service
I. INTRODUCTION
A. Project Background
The Payne Disposal Service landfill is an active sanitary
landfill located on approximately 158 acres in Alma Township, Payne
County, New York, near the City of Clinton. The land began being
used as a landfill in 1966, and it continues to operate under the
name of Midway Waste Systems (New York) Inc. Throughout this
report, the Payne Disposal Service landfill will be referred to as
the "Payne Disposal landfill" or the "site". Fourteen acres on the
site have been authorized by the New York Department of Natural
Resources (DNR) as a Type II landfill to receive general refuse,
garbage, rubbish, construction and demolition, waste water sludges,
and industrial waste. At no time has the site been approved to
receive liquid wastes. The site has experienced leachate
discharges of organic chemicals, threatening both surface and
groundwater. The extent of contamination as of June 13, 1984 had
not been determined, according to the EPA file available to Marta
(500) .
EPA Region 13 requested Marta, Inc. to provide litigation
support in searching for parties responsible for waste at the site.
Regional contacts Jim Moore and Keith Paton provided specific
direction regarding the information to be developed. Marta
proposed in its Work Plan to identify, copy and review relevant
federal, state, and county records and place those copies in a
composite chronological file, interview persons knowledgeable about
the site, conduct a title search for site ownership, and prepare a
report detailing the research results which includes a list of
potentially responsible parties and which references specific
documents. The primary Marta researcher for this project is Ms.
Janet Ross. The project manager is Mr. Stewart Anderson.
B. Project Approach
Marta received copies of relevant EPA files on the site and
contacted state and local officials to determine the extent and
nature of records available on the site. These officials also were
interviewed regarding their personal knowledge of the site. Under
EPA's direction, Marta contacted private citizens regarding their
personal knowledge of site activities. Each individual contacted
for records or information on the Payne Disposal landfill site was
advised that Marta was under contract to the U.S. EPA to request
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such information. In addition a title search was performed to
identify former and current owners of the site.
C. Contacts
Marta contacted officials at the New York Department of
Natural Resources (DNR) for information and records regarding the
Payne Disposal landfill. DNR officials contacted were:
Captain Hubbard. Law Enforcement Division, Adams District
Office (333/195-9210)
David Tharton. Environmental Enforcement Division (333/195-
9250
William Murphy. Chief, Investigations and Legal Services
Branch, Environmental Enforcement Division (333/196-9525)
Denise Gilbert. Site Assessment Unit, Remedial Action Section,
Groundwater Quality Division (333/196-3542)
Tom Adams. Environmental Engineer, Air Quality Division,
Adams District Office (333/198-1004)
Karen Cooper. Sanitarian, Region 13 (333/198-1955)
Ron Lee. Groundwater Quality Division (333/199-1111)
Captain Bill Brver. Law Enforcement Division, Headquarters
(333/196-1122)
Svnthia Berg. Engineer, Groundwater Quality Division
(333/197-5551)
Peter Berks, Chief, Environmental Hazard Control Unit,
Groundwater Quality Division (333/197-1922)
Nate Bell. Water Quality Specialist, Groundwater Quality
Division (333/197-5432)
Dave Bryn, Forensics Evidence Specialist Investigations and
Legal Services Branch, Environmental Enforcement Division
(333/195-1919)
Rov Archer. Surface Water Division (333/195-2757)
Bruce Allig. Conservation Officer, Law Enforcement Division
(333/245-8998)
Leonard D. Elden. Groundwater Quality Division (333/295-9001)
Mr. Louis Warren, Senior Environmental Specialist at the New
York Toxic Substances Control Commission also was contacted by
Marta. He stated that the Commission looks into site upon request
of citizens, legislators, or state agencies. It has no file on the
Payne Disposal landfill.
Marta contacted the following local officials for information:
City of Lenox. Paul Egel, City Engineer (333/245-2161); City
Clerk; and Waste Water Treatment Plant
Village of Joliet. Ralph Paxel, (333/554-9286), title unknown
City of Clark. City Manager (333/640-3271)
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Payne County, Larry Dole, Assistant Environmental Health
Director, County Health Department; and County Clerk
(333/251-8654)
City of Adams. Department of Public Service, and Waste Water
Treatment Plant (333/640-9581)
Township of Holm, Richard Dinoff, Clerk, and Dave Dawson,
Fire Chief (333/230-7698)
Township of Kate, Carleen Pike, Secretary, and Russell Hyde,
Fire Chief (333/230-9951)
City of Kozv. City Manager, (333/230-4556)
Each of these municipality officials reported that trash from
the municipality had been taken to the Payne Disposal landfill.
When specific waste or haulers of waste to Payne Disposal landfill
were mentioned, that information is noted in the Potentially
Responsible Party Information section of this report. Of these
municipalities, only Lenox had licensing requirements for haulers.
Lenox's "dray licenses" were used before 1971, and the records are
incomplete because some were destroyed when the city offices were
moved.
Richard Dinoff, the Clerk of Holm Township, provided more
detailed information than did other municipal officers. A summary
of his telephone interviews and letters is included in Appendix B
to this report.
With EPA authorization, Marta conducted telephone interviews
with several knowledgeable citizens to develop potentially
responsible party and other site-related information. Summaries of
these interviews are included in Appendix B to this report, and
selected information is incorporated into the Discussion of Site
section.
Individuals contacted by Marta were:
Site Neighbors
Will Russell (333/230-8386)
Mr. and Mrs. Sam Hights (333/230-3333)
Nancy Horn (333/230-1950)
Alice Isaac (333/250-2151)
Charles and Winfred Nolson (333/230-1444)
Former Site Employees or Workers
Lawrence Moyer (333/290-2173)
Charles Oscar (333/251-2900)
David Earl (333/230-9225)
Rick Hopkins (333/234-8675)
Jim Hopp (333/234-4156)
Pat Hoover (333/230-1234)
Hugh Hyde (333/230-5678)
Dunn Nate (333/230-9104)
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Fred Paxton (333/234-2435)
John Egan (333/239-4253)
Terry Egel (333/194-5252
D. Site Related Records
The sources identified below were contacted by Marta for
records and information on the site. This section described the
available records and the type of information provided by each
source. Records provided by these sources are presented as
Attachments I and II to this report. An index to the documents is
included in Appendix A to this report.
1. New York Department of Natural Resources (DNR)
Ron Lee of the Groundwater Quality Division of the DNR
indicated that the "600" file kept by his Division is the complete
DNR file on the site. ("600" refers to the Solid Waste Management
Act, Act. No. 600 of the Public Acts of 1978, as amended, which is
the relevant New York statute regarding regulation of sanitary
landfills.) While other divisions such as Environmental ":'
Enforcement may have files on the site, duplicate copies of
significant documents would be in the officials "600" file. Marta
received from Mr. Lee a complete copy of his files.
The DNR files ranged from 1966 to 1985 and included solid
waste disposal applications and licenses; solid waste disposal
evaluation reports; correspondence with site operators, generators,
haulers, consultants, and other regulatory offices; analytic
results of and reports on geological, environmental, and
engineering studies of the site and surrounding area; and
information on enforcement action against the operators.
Identification of potentially responsible parties is generally
found in correspondence asking for or granting approval for
disposal of a particular type of waste in the landfill.
Marta also contacted Denise Gilbert of the Site Assessment
Unit, Remedial Action Section of the Groundwater Quality Division.
The contents of her file on the site were reviewed on the phone,
and copies of documents not already in Marta's file were copied and
sent to Marta. These documents include the Site Description
prepared by the Site Assessment Unit in 1984.
William Murphy of the Investigations and Legal Services Branch
supplied a copy of one Report of Incident from his Payne Disposal
landfill file and copies from his file on Laramy, which is another
site owned by Midway Waste Systems, Inc. (274, 537, and 540). The
latter documents are being provided to EPA separate from this
report.
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2. Pavne County Health Department
Larry Dole, the Assistant Environmental Health Director,
provided Marta with photocopies of Health Department files relating
to the site except for documents which he believed were also in the
DNR files. Attached to his letter of March 4, 1985 is a list of
documents which he did not provide (368). Marta's review of this
list confirmed that those document types were already in Marta's
possession.
Files received from the Health Department spanned the years
1972 to 1985 and included much of the same types of correspondence
as were in the DNR files, with some additional information about
site inspections, fires at the site, and specific generators'
waste.
3. U.S. EPA Region 13
Marta received Region 13 documents from three different
sources. Jim Moore provided the Hazard Ranking System file on
Payne Disposal. Peter Jordan provided copies of documents relating
to Development Company, which is a potentially responsible party
for the site. Bruce Allis provided copies of inspection reports
for the Payne Disposal landfill relating to disposal of wastes from
Kopper Company. The EPA records are presented in Attachment II.
The remainder of this Draft Report has been organized as
follows:
Section II - Discussion of Site: Information is presented on
the ownership of the site and its use as a disposal site. This
information has been developed through a review of available
documents, telephone interviews with knowledgeable individuals, and
a title search.
Section III - Potentially Responsible Party Information; Each
responsible party identified during the course of Marta's research
is listed in this section. For each party listed, a brief
description of its apparent involvement with the site is provided,
along with its facility address, if indicated on the documents.
The current corporate status of site owners and operators is also
provided.
Section IV - Conclusions and Recommendations; Conclusions
based on the currently available information regarding responsible
parties are provided, along with recommendations for developing
additional responsible party information.
DNR and Payne County Health Department documents obtained by
Marta are presented as Attachment I, ordered chronologically and
marked with sequential numbers from 1 to 373 in the lower right-
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hand corner. EPA documents obtained by Marta remain in the files ^B
in which they were received and are also numbered sequentially,
starting with 500. They are presented as Attachment II.
When more than one document is in a stapled unit, the first
document is numbered in the normal fashion and successive documents
are numbered with decimals. For example, Document 16 has
attachments which are numbered 16.01, 16.02, and 16.03. References
to supporting documents are presented throughout this report by
means of these document numbers.
Also in the lower right-hand corner of each document is an
alphabetic code which indicates the source of the document, as
follows:
Notation Source
(nothing) DNR, Groundwater Quality Division "600" file
H Payne County Health Department
& H both DNR and Payne County Health Department
I DNR, Investigations & Legal Services Branch,
Environmental Enforcement Division
S DNR, Site Assessment Unit, Remedial Action
Section, Groundwater Quality Division
P Holm Township
N neighbor
E EPA
Attachment III includes the title search documents, and
Appendices A and B include the Document Index and Interview
Summaries, respectively.
II. DISCUSSION OF SITE
A. Site History
This section provides a site history based on information
developed through record review and interviews during the course of
this research. Where applicable, reference is made to individuals
or documents supporting the information being presented.
1. Owners and Operators of the Site
This subsection focuses on the identity of all identified
parties that owned or operated the site, including wherever
available the names of individuals who from the record would appear
to be familiar with overall site operations. In some time periods,
the name of the party responsible for site operation is not clearly
indicated in the documents.
i
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Corporate information for the site owners and operators was
obtained from the Secretaries of State in New York, California,
Ohio, and Iowa. This information may be found in Section III.
Mr. Allen Doe was identified by several sources, including
former employees Lawrence Moyer and John Egan, as the first
operator of the Payne Disposal landfill. He signed the first
license application on April 8, 1966 as Secretary Treasurer of
Payne Disposal Service Co. (16.01). Lawrence Moyer indicated that
Fritz Morris was at one time a partner with Mr. Allen Doe in the
Payne Disposal Service Co. business but was later bought out by Mr.
Allen Doe in 1974 or 1975. Lawrence Moyer believed that Fritz
Morris had furnished the initial capital and business knowledge for
the start-up of the company. Payne Disposal Service Co.'s first
mortgage was signed by Mr. Allen Doe as Secretary-Treasurer and
Fritz Morris as President on October 23, 1969.
Mr. Allen Doe apparently operated the landfill until some time
between May and August 1978 when according to a former employee he
sold the business to Vinet, Inc. An Evaluation Report dated May 4,
1978 prepared by Jerry Wilson of the DNR shows Kelvin Doe as the
property owner and operator (91). The next Evaluation Report,
dated August 21, 1978, shows the site operator as Mark Doe (Allen
Doe's son) and the owner as Payne Disposal; and the Application for
Solid Waste Disposal Area License of the same date shows the owner
as Vinet, Inc. with Mark Doe as General Manager (94, 95). Former
employee John Egan indicated to Marta that after Allen Doe sold the
business to Vinet, Inc., Allen Doe continued for a while as
manager. Former employee Terry Egel said that Allen and Mark Doe
managed together for a while under Vinet, Inc.'s ownership, before
Vinet, Inc. brought in Daniel Monroe.
As confirmed in an October 23, 1978 letter from DNR to Vinet,
Inc., it agreed to "provide professional management of the landfill
during the management changeover beginning October 23" (101). By
October 27, 1978, Daniel Monroe was receiving mail as manager of
Payne Disposal Service Co. (102). Former employees Russell Hyde,
John Egan, and others mentioned that Payne Disposal Service Co.
brought in Daniel Monroe and Ted Garcia as managers. The first
mention of Garcia in the files was in a December 29, 1978 letter
from ABC Consultants, Inc. to DNR regarding their engineering work
at the site (126).
Daniel Monroe and Ted Garcia appear to have co-managed the
site under Vinet, Inc.'s ownership until sometime between December
5, 1979 and January 4, 1980, when the new operator was said to be
Steve Norris (181, 190). Monroe's name does not appear in the file
after that date. Norris is shown as site operator on Evaluation
Reports from March 4, 1980 through May 12, 1980 and again on
October 2, 1980 (193, 206, 212.01, 228).
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Former employees Charles Oscar and Dunn Nate both indicated to
Marta that Ralph King had a contract to do cover operations at the
landfill. Oscar said that King had two companies, Wicks and U.S.
Can; and that one of these companies had folded, but he did not
recall which one. Ralph King's name first appeared in the
documents on September 18, 1980, when he was listed as the operator
on an Evaluation Report (227) . References to King or Wicks appear
again in letters dated Mary 5, 1982 and November 6, 1984 (292,
353). On April 19, 1985, Dunn Nate mentioned that he had heard
that Midway Waste Systems Inc. (hereinafter "Midway") would be
terminating the relationship with King at the end of the month
because of dissatisfaction with King's performance of the cover
operations.
The first mention of Midway as property owners was also on the
September 18, 1980 Evaluation Report (227). The next Evaluation
Report, on October 2, 1980, shows three names as property owners:
Vinet, Inc., Healthy Life, and Midway. The relationship of these
three companies is not clear from the documents, nor is it clear
when the site ownership changed. A Schedule of Compliance was
signed by Vinet, Inc. on December 19, 1980 (223.01). A DNR
interoffice memo on March 9, 1981 reported that the facility
recently had changed ownership (241). The next two Evaluation
Reports showed Midway as owner and Ted Garcia as manager (244,
246); but a DNR letter dated April 8, 1981 identified Ted Garcia as
a representative of Vinet, Inc., and a June 12, 1981 letter said
that Vinet, Inc. would be signing a contract for slurry wall
construction (248, 258).
Healthy Life is shown as property owner and Ted Garcia is
shown as the operator on Evaluation Reports from May 1, 1981
through December 2, 1981 (251, 259, 262, 266.01, 268, 273). Paul
Clark and/or Ken Col of Healthy Life were sent correspondence about
the landfill from August 20, 1981 to December 29,, 1981 (263, 275,
277). However, on February 9, 1982, Ken Col wrote a letter on
letterhead that showed "Payne Disposal Service Company, a Vinet,
Inc. Company". He signed the letter for Vinet, Inc. and sent a
carbon copy to P. Clark of Midway Waste Systems, Inc. (284) .
Erick Burger's name appears as manager instead of Ted Garcia's
on Evaluation Reports and correspondence beginning on February 17,
1982 (286, 287, 289, 290). On May 5, 1982, Erick Burger of Midway
Waste Systems, Inc. was arraigned for insufficient cover at the
landfill (293). After a May 11, 1982 Evaluation Report which shows
Healthy Life as licensee, the Midway name appears exclusively on
the documents (294) . Erick Burger was apparently replaced by
Robert Neil as the landfill manager some time between May 31, 1983
and August 16, 1983 (309, 316). As recently as January 28, 1985,
Neil was still the site manager.
c
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2. General Site Operation Procedures
Several former employees of Payne Disposal Service Co.
provided Marta with information regarding the operation of the
site, i.e., hours, procedures, record keeping and customers. This
subsection summarizes such information. The reader is also
directed to the interview summaries in Appendix B.
Payne Disposal Service Co. has picked up or received wastes
under contract with residential, municipal, commercial, and
industrial customers. In addition, individuals, hauling companies,
and businesses have been able to dispose of waste on a single-load
basis by paying according to the estimated volume of the load. Pat
Hoover, former employee, indicated to Marta that most of the waste
was local, and quite a bit was industrial.
Most municipalities in the area contract out their household
trash pickup on an annual basis. The City of Clinton, however,
appears to be an exception in that it picks up household trash in
city trucks and delivers it to Payne Disposal landfill. It is
known from Solid Waste Evaluation Reports filled out by Health
Department officials that at least twenty municipalities have sent
trash to the Payne Disposal landfill over the years of its
operation (17, 21, 23, 24.01, 27, 31). In all likelihood there may
be more. These twenty municipalities are listed in Section III of
this report.
Former site employees provided some information on general
procedures at the landfill. Fred Paxton said that in the period of
his employment (February 1968 to February 1979), the gate to the
landfill was kept locked at night until 5 a.m., and only employees
had keys. In the first four or five years he was at the site
(approximately 1968 to 1973), loads brought under contract were
counted at the gate only one month out of the year. In the other
eleven months, the billing was based on that one month's estimate.
During those eleven months, someone was at the gate to estimate the
volume of individual loads and take payments only on Saturdays.
Mr. Paxton said that tickets were written for customers who were to
be billed and receipts were given for cash payments.
Jim Hopp worked as a "ticket taker" for a few months in 1976
or 1977. He said that he estimated the volume of trash on all
loads and entered that information in a logbook which would show
only the hauler name and the volume in cubic yards. He gave
receipts to the drivers and kept one copy of each for the landfill.
The incoming trucks and roll-off containers were not checked at all
to determine what waste was coming in for disposal, and there was
no one at the gate even to estimate loads in the early morning
hours. Twice he observed semi's dumping barrels of liguid which
were left uncovered until morning.
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Hugh Hyde said that the gate checked only those loads brought ^B
in by the general public. When an industrial customer was ready
for pick-up or roll-off units from its facility, it would call the
landfill office. A Payne Disposal Service Co. truck was sent, and
the driver filled out a receipt which would be signed by a company
representative. One copy of the receipt was given to the customer
and the other went to the landfill office.
Dunn Nate said that he took money "at the shanty" for the
first few months he worked at the landfill in 1978 or 1979. He
checked loads and rejected things like paint, hot ashes, barrels,
and liquids. Tires and tree stumps were discouraged by placing
what he characterized as a "ridiculously high" price on their
disposal. He said that someone else now checks every incoming
load.
The business of the landfill grew over time. Lawrence Moyer
estimated that between 1968 and 1976, 7 or 8 men worked there at a
time, with a lot of employee turnaround and a lot of two-job
workers. He said that there was very little change in the site
operation from 1967 to 1976. Terry Egel, however, said that during
1979 there were about 12 employees at a time, and the landfill got
more business and residential customers in that year.
Almost every former employee who was interviewed mentioned the
long hours worked at the site. Drivers of roll-off trucks were
given daily lists of companies which had requested pickups, and
they had to finish those lists before stopping for the night. Fred
Paxton said the heavy equipment operators quit for the day only
when everything was covered. Only David Earl said that he worked
from 8:00 to 5:00. Others estimated that they worked 15 to 18
hours daily, 50 to 84 hours weekly, and even some 24-hour days.
Dunn Nate mentioned Vinet, Inc.'s problems with insufficient
equipment in poor condition. Breakdowns were an everyday problem.
Midway, he said, had greater resources and put more money into the
landfill and equipment, doing a 300% to 400% better job than had
Vinet, Inc.
3. General History
This subsection focuses on the incoming waste types, the
generators, and the site's compliance with applicable regulations,
based on available records. Selected historical information from
Marta's telephone interviews is included. Information about
potentially responsible parties and waste types reported to Marta
by former employees may be found in Section III and in Appendix B.
Generators and/or specific waste types were mentioned in the
Health Department or DNR files for one of two reasons. If the
generator, hauler, or landfill operator contacted one of the
10
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regulatory bodies to request approval for disposal of a particular
waste, and if at least part of that exchange was done on paper, the
files would have a copy showing that company's name or a
description of the waste. It would appear that in many instances
the final decision was given verbally, because the file has no
indication whether particular wastes were ultimately disposed at
the site or not. This request and approval mechanism appears to
have been voluntary. Karen Cooper of the DNR and Larry Dole of the
Health Department both said that they would expect that many more
companies sent industrial waste to the site than the few that were
mentioned in the file.
The other reason a company's name may have appeared in the
file is that a problem or infraction involving that company's waste
was noted either during a regular inspection or while responding to
an incident. Examples of companies whose names were mentioned for
these reasons include The Lean Company, Karicol, and Development
Company.
When Allen Doe filed his first Application for Solid Waste
Disposal Area License on April 8, 1966, the Division of
Engineering, New York Department of Public Health (NYDPH) regulated
Type II landfills under Act 87; however, it appears that the Payne
County Health Department also reviewed the application and
attachments (Reference Doc. 16, 16.01).
According to Richard Dinoff, the Holm Township Clerk, there
had been no prior uncontrolled dumping at the site, and the
landfill began operations that summer or fall. The license was
issued on September 27, 1966.
Neighbors of the site had tried to prevent the opening of the
landfill by presenting a petition with 30 or 40 signatures,
including those of Karl and Alice Isaac and Charles and Winfred
Nolson. According to Charles Nolson, at least one meeting was
attended by neighbors and their attorney, representatives of the
Payne County Health Department and Holm Township, and someone other
than Allen Doe representing the landfill.
For all inspections from September 26, 1966 to September 6,
1972, the Health Department used an NYDPH form titled "Solid Waste
Disposal Evaluation Report" (17, 21, 23, 24.01, 27, 31, 53, 55).
Except for a gap from September 1966 to February 1969, inspections
were performed at least once a year. Applications for licenses
were filed annually except for a gap in 1967 and 1968 (16.01, 20,
25.01, 28.02, 33.02). It is not clear whether no applications were
filed in this period or the documents from those years simply were
not in the DNR files.
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By May, 1970, Allen Doe was inquiring about expanding the
active site of the landfill to be on the flood plain of the River
Windex (Reference Doc. 26). Payne Disposal Service Co. and their
engineering consultants, ABC Consultants, Inc. dealt with the Flood
Plain Management Section of the DNR and the Payne County Health
Department in 1970 and 1971 (26, 29, 35, 36, 37).
On November 8, 1971, Freeport Testing Laboratory, Inc.
submitted their "Report of Subsurface Ground Investigation and
Laboratory Test Results" on the proposed expanded site (36) . On
December 21, 1971, the Division of Solid Waste Management of the
NYDPH Bureau of Environmental Health wrote that the proposed
extension would be feasible if properly engineered (38) . John
Warren of the DNR Geological Survey Division believed that the
proposed expansion could adversely affect surface water quality if
constructed according to the July 22, 1971 plan. He made three
recommendations to retard subsurface leachate movement into the
river: 1) a clay liner on the landfill bottom; 2) extend the
perimeter dike downward and "key" it into a continuous layer of
non-permeable material; 3) line the pit with soil sealant or
plastic and installing a system of leachate collection and
treatment (41). The Water Resources Commission tabled the matter
on January 21, 1972 (42).
* NOTE *
* *
* AN ADDITIONAL 13 PAGES OF THE ORIGINAL REPORT *
* HAVE BEEN OMITTED IN THIS SAMPLE REPORT. IN *
* THE ORIGINAL REPORT, SECTION II - DISCUSSION *
* OF SITE, CONTINUED TO DISCUSS THE HISTORY OF *
* SITE OPERATION AND SITE OWNERSHIP. *
* *
*************************************************
III. POTENTIALLY RESPONSIBLE PARTY INFORMATION
Potentially responsible party information was put into Health
Department or DNR files only when an infraction or problem was
observed and noted or when there was correspondence regarding the
acceptability of disposal of a particular waste at the site. Karen
Cooper of DNR said that she is sure that there were many more
companies that sent waste to the Payne Disposal landfill than the
DNR's "600" file would show as generators or haulers. Some of the
correspondence in the files, she said, was written because the
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company in question (e.g. Scotch Industries) was caught handling
its waste improperly. Larry Dole of the Health Department said
that in later years, Midway asked for permission to accept
questionable waste; but prior to Midway's operation of the site,
the site operator seldom requested such direction.
Dole also indicated to Marta that in all likelihood, much of
the chemical disposal in the landfill was done unbeknownst to the
landfill operators. He indicated that companies would try to get
rid of chemical wastes without letting the landfill know. One
example which he recalled as having occurred either at this site or
another was a company which included a bag of chlorine in its
office trash.
Former employee John Egan reported to Marta in an interview
that the site received sludge from factories; but he did not name
the generators of that type of waste. Hugh Hyde, former employee
and current Pekin Township Fire Chief, indicated to Marta that he
filled out a receipt whenever he picked up containerized waste from
a factory. One copy of the receipt was given to the factory and
the other was taken to the landfill office. Former employee Jim'
Hopp described the use of receipts at the gate and indicated that a
log book was kept with names of haulers and the estimated volumes
of incoming waste. If these log books and receipts can be located,
additional potentially responsible parties may be identified.
The companies listed below were identified through Marta's
research by individuals and/or in documents as possible users of
the site. The companies identified as generators are noted as
11 (G)", haulers are noted a "(H)", and owners or operators are noted
as "(0)". Unless indicated otherwise, all referenced statements of
individuals were made to Marta staff during telephone interviews.
For summaries of these interviews, see Appendix B. Source
documents are noted for each potentially responsible party
referenced in documents. For each company listed, mailing address
information is provided, when available.
Throughout this section, Health Department or DNR approval is
noted for a company's planned disposal of certain materials.
Unless noted otherwise, information available to Marta does not
specifically document the actual disposal of such waste at the
site.
1) . Alint (H)
"no address available"
According to Pat Hoover, former employee, when Ted Garcia
ceased being manager at the landfill, he operated a hauling company
called Alint which had a contract with Midway to do commercial
pickups. Ted Garcia is now with Sara Disposal.
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2). Aron Plug Corporation (G)
303 Laramie Street
Clinton, WI 69260
Aron Plug generated a grinding sludge which was less than 2%
liquid and consisted mostly of grinding wheel dust and a small
amount of steel, with trace quantities of other metals. In a
September 12, 1983 conversation and a September 14, 1983 letter,
the County Health Department approved the disposal at Payne
Disposal landfill. No volume or actual evidence of disposal was
indicated (319).
3). Gulf Carton (G)
Knox, WI
Former employee Fred Paxton stated that roll-off containers
were brought to the site from Gulf Carton.
4). Iron Braceley Co. (G)
Clinton, WI
Former employees David Earl, Dunn Nate, and Rick Hopkins all
stated that waste from containerized units picked up at Iron
Braceley Co. were disposed at the site. Mr. Nate said he believed
that the company's real name is "All Steel Co."
5). Development Company (F)
920 E. Street
Clinton, WI 69260
According to the Remedial Action Master Plan for the
Development Company Site, Development Company manufactured Chlorex
from 1971 to 1979. This product, also called tri-chloroethylene or
TCE, was used to cure rubber for products such as skateboard wheels
(531). On March 30, 1979, a Health Department representative
witnessed a roll-off unit from Development Company which had a
chemical smell (147). The Health Department sent Development
Company a copy of a letter about the incident. In response, the
Development Company president wrote to the Health Department that
he had given strict instructions "to keep separate all chemical
waste from any trash that goes to your disposal hoppers" (148).
Former employee Hugh Hyde recalled this incident.
According to Larry Dole, Chlorex became airborne from sloppy
operations at the plant, a cleanup operation was conducted to clean
the vicinity of the plant, and approximately 60 cubic yards of
street sweepings with 0.5 to 2 ppm of Chlorex were disposed at the
Payne Disposal landfill (504).
Documents which refer to groundwater testing for Chlorex in
the vicinity of the Payne Disposal landfill range in date from
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April 10, 1979, to August 5, 1982 (149, 154, 156, 157, 158, 207,
2134, 256, 264, 282, 283, 297). Wastes generated incidental to
drilling operations near the Development Company wastewater
treatment lagoon were approved to go to the Payne Disposal landfill
on February 29, 1982 (192).
The U.S. EPA Region 13 has been involved with the Development
Company site, and copies from Peter Jordan's files are included as
reference documents 516 through 531. The State of New York filed a
court case against Development Company in 1979 which was still in
litigation as of February, 1981. In response to an EPA Superfund
Questionnaire, the DNR reported that the limited resources of
Development Company may not be sufficient to pay for cleanup
activities (526).
6). May Trucking (H)
"no address available"
Former employee Fred Paxton mentioned this company as an
outside hauler which brought waste to the landfill.
7). Kam Plastics (F)
"no address available"
Fred Paxton and Rick Hopkins recalled this company as
generator of waste received at the site.
8). Cochic, Inc. (F)
Pekin Highway
Peky, WI 69260
The DNR Site Assessment Unit provided copies of documents
which identify Cochic, Inc. as a generator of 11,000 cubic yards of
waste disposed at the Payne Disposal landfill from 1970 to 1979.
Evidently, Cochic, Inc. voluntarily submitted this information in
1979 for the Omar Survey by the Mall Connection and Kapa Trade
Committee (257) .
**************************************************
* NOTE *
* *
* AN ADDITIONAL 55 POTENTIALLY RESPONSIBLE *
* PARTIES WERE LISTED IN THE ORIGINAL REPORT. *
* *
**************************************************
15
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64.) Other Possible Site Users
Some haulers were mentioned by individuals interviewed by
Marta as parties which may have taken waste to the site. Marta
found no evidence to link these haulers to the site, and therefore
have listed them below as possible site users:
2. Kelonix (H)
Dante, WI
For some unknown period of time, the city of Kozy had a
contract with Kelonix for household trash removal for disposal at
the site, according to the city manager.
b. Lone Disposal (H)
"no address available"
Former site employee David Earl reported that Mark Doe bought
out Lone Disposal and formed Tony Recycle. Presumably, since Tony
Recycle was identified as a company which hauled waste to Payne
Disposal landfill, Lone Disposal may have also.
c. Maxim (H)
"no address available"
The Kozy City Manager reported that the city has a contract
with Maxim to take waste from businesses to a landfill other than
the Payne Disposal landfill.
IV. CONCLUSIONS AND RECOMMENDATIONS
Marta has developed a substantial amount of information
regarding the waste disposal practices and operational history of
the Payne Disposal landfill through a review of records obtained
from EPA, the New York Department of National Resources, and the
Payne County Health Department, supplemented by numerous telephone
interviews conducted with neighbors of the site, former employees
of the site operators, municipal officials, and individuals at the
DNR and EPA. This information includes the identity of over 60
parties which are potentially responsible for waste disposed at the
site.
As directed by EPA, Marta was to prepare this Draft PRP Report
based on information developed to date. Certain further leads
including primarily the names of additional municipalities known to
have used the site and former employees remain to be pursued.
After review of this Draft PRP Report, these leads plus any other
research direction proposed by EPA can be pursued.
16
-------
Information presented in this report on responsible parties is
characterized by being based partly on the accounts of individuals
who either observed the waste disposal or were otherwise
knowledgeable of the activity at the site and partly on documents
which suggest disposal of waste at the site. Based on the above
information, the following are Marta's recommendations for
developing additional responsible party information:
A. Contact Midway Waste Systems. Inc.
Midway should be requested to produce information and
documentation regarding waste transactions at the site from 1966 to
the present. Specifically, Midway should be requested to:
1) describe record keeping practices from 1966 to present
that would identify generators and haulers of waste to the site;
2) provide any and all site documentation that would
identify site users, including but not limited invoices, accounts
receivable, log books, drive and gate receipts, and driver daily
pickup lists;
3) provide any documentation of waste types;
4) provide contracts with municipal, corporate, or
industrial customers for waste pickup; and
5) provide names of all former employees and managers and
identify the scope of their knowledge of waste practices and the
identity of potentially responsible parties.
In addition, Midway should be requested to identify and
describe any and all waste transactions not evidenced in their
recordkeeping, specifically identifying the type of waste and the
waste generators and haulers.
Midway should also be requested to describe the relationship
among Vinet, Inc., Healthy Life, and relationships with Wicks, U.S.
Can, or any other subcontractor or broker involved in site
management activities.
B. Contact Identified Potentially Responsible Parties
Each potentially responsible party should be requested to
provide information and documentation describing waste transactions
with the Payne site. Specifically, information and documents
should describe the type and volume of waste disposed of at the
Payne site.
17
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C. Contact Municipalities
Marta has contacted several municipalities and obtained
information regarding the nature of waste disposed of at the site.
Several other known municipalities along with others identified by
Midway should be contacted regarding the volume and type of waste
disposed of at the Payne site.
D. Contact Knowledgeable Individuals
Marta has contacted several former site employees who appeared
to be knowledgeable of site activities. Other employees and former
employees of the landfill which are now known, along with those
identified by Midway should be contacted generally regarding waste
disposal and potentially responsible party information. Marta also
contacted several employees of the DNR and Health Department who
appeared to be knowledgeable of the site. Other such agency
employees and former employees should also be contacted regarding
their specific recollections of the landfill's operations.
The New York Department of Agriculture should also be
contacted for information from documents and from recollections of
knowledgeable individuals regarding disposal of PBB-contaminated
materials at the site.
E. Current Corporate Status
Develop the current corporate status of potentially
responsible parties as directed by EPA.
F. Financial Analysis
After EPA submission of a request to the NEIC for financial
information on potentially responsible parties, develop additional
financial information, as necessary.
18
-------
APPENDIX A
DOCUMENT INDEX
PAYNE DISPOSAL SERVICE
001. Brochure for Payne Disposal Service Company, date unknown.
002. News article, "Payne Official Questions EPA Superfund Local
Listing", prepared by John Norris, Daily Telegram, date
unknown.
003. Handwritten note listing dates regarding plan of operation,
dates from May 5, 1981 to August 27, 1981.
004. Handwritten note referencing name of Midway Waste Systems
Landfill, dated 1984.
005. Cover Sheet, Payne Disposal, dated August 1966 thru December
1978.
006. Solid Waste Disposal Record, listing licenses held by Payne.
Disposal from 1969-70 to 1978-79.
007. NYDNR Evaluation Report form, undated.
008. Handwritten memo, illegible, date estimated at 1976.
009. Payne Disposal Test Data Sheet, partially illegible, date
unknown.
010. Depth chart representing Payne Disposal Landfill, undated.
Oil. Construction specifications for soil bentonite slurry
trench, undated.
012. Sketch of landfill, possibly dated July, 1982.
013. Well sampling data, handwritten, date range January, 1981
thru April, 1984.
014. Topographical map of landfill, undated.
015. Letter to Joel Smith, Payne Disposal, prepared by S.F.
Wayne, New York Department of Conservation, dated August 12,
1966.
016. Letter to Mike Collins, NYDPH, prepared by Clifford Gossin,
P.E. County Health Dept., dated August 18, 1966.
-------
016.01 Application for Solid Waste Disposal Area License, prepared ^^
by Payne Disposal, dated April 8, 1966.
016.02 Surety Bond Form for Solid Waste Disposal License, prepared
for Payne Disposal, by the Delta Insurance Company, dated
April 6, 1966.
016.03 Power of Attorney, regarding the Delta Insurance Company,
dated January 6, 1966.
017. Solid Waste Disposal Evaluation Report, re: Payne Disposal,
prepared by County Health Dept., dated September 26, 1966.
018. Handwritten memo regarding ground and water problem,
undated.
019. Letter to PDC, prepared for Carl Maxel, Environmental Health
Section, Division of Engineering, by J.R. Bronson,
Sanitarian, Environmental Health Planning Unit, dated
September 28, 1966.
020. Application for Solid Waste Disposal Area license, prepared
by Payne Disposal, dated January 21, 1969.
20.01 Surety Bond Form for Solid Waste Disposal License, prepared
for Payne Disposal, by the Delta Insurance Company, dated
August 31, 1968.
021. Solid Waste Disposal Evaluation Report, re: Payne Disposal,
unsigned, dated February 13, 1969.
022. Letter to Tom Nixon, County Health Department, prepared for
Carl Maxel, by J.R. Bronson, Environmental Health Planning
Unit, dated May 16, 1969.
023. Solid Waste Disposal Evaluation Report, re: Payne Disposal,
prepared by Payne County Health Dept., dated May 26, 1969.
024. Memo to unknown recipient, prepared by County Health
Department, dated January 12, 1970.
024.01 Solid Waste Disposal Evaluation Report, re: Payne Disposal,
prepared by County Health Dept., dated December 29, 1969.
024.02 Solid Waste Disposal Evaluation Report, re: Payne Disposal,
prepared by County Health Dept., dated December 29, 1969.
-------
Example 2
Appendix A pages 3 through 35 not included
Appendix B not included
-------
Example 3
Complete Title Search
-------
1.0 INTRODUCTION
1.1 SCOPE OF WORK
M & M Conservation, Inc. received Work Assignment No. 199 from the U.S. EPA
Region 12 to perform a title search on the property known as Peanut Landfill in Cook
County, Florida. The purposes of this title search are to:
1) Identify the current owners of the site; and
2} Identify the two previous owners of the site.
1.2 PROJECT APPROACH
M & M subcontracted the title search to Bronx Title Insurance Company. M & M
gave the title search firm a legal description and map of the site (Doc. No. 11), as
provided by Richard Smith, U.S. EPA Primary Contact. All the documents obtained
during the title search are included in Attachment I.
M & M used the information obtained through the title search to formulate a
history of ownership for the site. The history involves several parcels that have
been resubdivided over the years. Five figures have been included to illustrate how
the parcel boundaries have changed over the years; all of these figures are drawn to
the same scale. The site is currently divided into Parcels A, B, C, and D. Prior to
1983, the property now identified as Parcels B, C, and D was a portion of four
-------
(City cf . Soling. Lease Area)
-------
parcels identified as 2, 3, 4, and 5. Prior to 1955, Parcels 2, 3, 4, and 5 and also
Parcel A where a portion of a larger area consisting three parcels identified
as X, Y, and Z.
2.0 SITE OWNERSHIP HISTORY
2.1 PRESENT OWNERS
The property boundaries of the site based on the legal description provided in
Doc. No. 11, are shown on Figure 1. Information in the document indicates that the
site is leased by the City of Saline through a lease and easement agreement dated
October 29, 1981 (Doc. No. 11). Using this information, Bronx Title Insurance
Company conducted the title search and prepared a report entitled "Report for Court
Proceedings" for the site (Doc. No. 10). The report divides the site into Parcels A,
B, C, and D as shown on Figure 2. The report concludes that at the present time,
Parcel A is owned by the City of Mars and Parcels B, C, and D are owned by Dobson
Rock & Concrete, Inc., a Florida corporation.
2.2 OWNERSHIP HISTORY
Parcel A
Parcel A is a portion of property which, as of 1955, consisted of two adjoining
parcels: X and Z. Parcels X and Z are shown in Figure 3 along with the present
Parcel A. Toronto Paper Company, a Florida corporation, conveyed Parcel X to Frank
Gallippi and Michael Coughlin through a deed executed on September 11, 1945 (Doc.
No. 1).
-------
PARCEL B
PARCEL D
PARCEL C
PARCEL A
Figure 2: Parcels A, B, C, and D.
-------
PARCEL Y
PARCEL X
Figure 3;
Conveyance of
Parcel A
PARCEL z
-------
P. Cooper trustee of Duran Enterprises, a dissolved Florida corporation, conveyed
Parcel Z to F. Gallippi and Susan Gallippi, husband and wife, through a deed dated
March 15, 1955 and recorded May 13, 1955 (Doc. No. 3). This executed deed fulfilled
a contract of sale dated July 9, 1946 between Duran Enterprises, Inc. as seller and
F. Gallippi as Purchaser.
F. Gallippi and S. Gallippi conveyed Parcel A to the City of Mars, a municipal
corporation, through a statutory warranty deed executed on July 25, 1966 (Doc. No.
4). Parcel A included a portion of Parcel Z, owned by Frank and Susan Gallippi (Doc.
No. 3) and a portion of Parcel X, owned by Frank Gallippi and Michael Coughlin (Doc.
No. 1). Available documents do not explain how Frank and Susan Gallippi conveyed a
portion of Parcel X jointly owned by Frank Gallippi and Michael Coughlin. The 1966
deed conveying Parcel A to the City of Mars contains a provision reserving, "to the
Grantors... and to a co-partnership consisting of Frank Gallippi, Mark Gallippi,
/
Micheal Coughlin, Paul Gallippi, Steven Gallippi, and Saul Goldstein, and their
successors and assigns, the sole and exclusive right to use, occupy, possess and
remain in full possession and control of the said property, so long as the Grantors
may find it necessary, and to deposit... non-putrescible type waste material... in
accordance with a certain lease and easement agreement" of October 1965 and amendment
agreement dated May 11, 1966 (Doc. No. 4).
Parcels B. C. D
Parcels B, C, and D, presently owned by Dobson Rock & Concrete, Inc., are part
of a property which, as of 1955, consisted of the three adjoining parcels identified
as X, Y, and Z as shown in Figure 3. As stated earlier, Parcel X was conveyed to
-------
PARCEL 2
PARCEL
PARCEL 3
PARCEL
5
PARCEL 4
PARCEL X
PARCEL I
Parcels 2,'.
Parcels
Figure 4 :
Conveyance of
Parcels
2, 2, 4, and 5
-------
Frank Gallippi and Michael Coughlin on September 11, 1945 (Doc. No. 1) and Parcel Z
was conveyed to Frank and Susan Gallippi on March 15, 1955 (Doc. No. 3). Elizabeth
Duff conveyed Parcel Y to Frank Gallippi and Michael Coughlin through a statutory
warranty deed executed on October 1, 1945 (Doc. No. 2).
A quit claim deed executed on April 5, 1978 (Doc. No. 5) by Mark Gallippi and
Julia Gallippi, husband and wife, and Susan Gallippi, surviving spouse of Frank
Gallippi, conveyed real estate which included Parcels 2, 3, 4, and 5 to Dobson Rock &
Concrete Company, a partnership. The relationship between Parcels 2, 3, 4, and 5 and
Parcels X, Y, and Z are shown in Figure 4. The Grantors in the quit claim deed gave
up their share of the real estate ownership in exchange for a share in the partner-
ship of Dobson Rock & Concrete Company. Barbara Coughlin, as Administratrix of the
Estate of Michael Coughlin, is named as one of the Grantors in the quit claim deed,
but she did not sign the instrument. Instead, she executed a separate quit claim
deed on December 16, 1978 (Doc. No. 6), individually and as Administratrix of The
Estate of Michael Coughlin, to convey her and the estate's shares of the ownership of
the real estate to Dobson Rock & Concrete Company in exchange for a share in the
partnership of Dobson Rock & Concrete Company.
On July 20, 1983, Dobson Rock & Concrete Company executed a quit claim deed
(Doc. No. 7) conveying property which included Parcels 2 and 4 and portions of
Parcels 3 and 5 to Dobson Rock & Concrete, Inc. These conveyed, parcels currently
make up Parcels B, C, and D of the site. The relationship between Parcels B, C, and
D and Parcels 2, 3, 4, and 5 are shown in Figure 5. Dobson Rock & Concrete Company
executed a statutory warranty deed on March 11, 1984 to correct the quit claim deed
-------
r
PARCEL 3
PARCEL 2
PARCEL D
/
/ i
EASEMENT
y
PARCEL
5
PARCEL
B
PARCEL 4
PARCEL C
PARCEL A
/
- PARCELS 3, 4, 5
PARCELS A, B, C, D
Figure 5: Conveyance of Parcels B, C, D
-------
executed on July 20, 1983 (Doc. No. 9). The deed of March 11, 1984 did not affect
the conveyance of the parcels that make up site Parcels B, C, and D. Mark Gallippi
executed both deeds for Dobson Rock & Concrete Company.
The City of Mars designated Parcels 3, 4, and 5 in Figure 4 as Tax Lots 26, 33,
and 14, respectively. When Dobson Rock & Concrete Company conveyed ownership of
certain real estate to Dobson Rock & Concrete Inc., they transferred portions of
Parcels 3 and 5 thus breaking-up Tax Lots 26 and 14. An agreement dated September 2,
1983 between Dobson Rock & Concrete Company, a Florida partnership, and Dobson Rock &
Concrete, Inc., a Florida corporation, ajusted lot lines with approval from the City
of Mars. Upon the lot line adjustment, the partnership owned all of revised Tax Lot
26 and the corporation owned all of revised Tax Lots 33 and 14 (Doc. No. 8). Revised
Tax Lot 26 includes those portions of Parcels 3 and 5 which were not transferred to
Dobson Rock & Concrete, Inc. Revised Tax Lot 33 includes Parcel 4 and a portion of
Parcel 3 and is designated as site Parcel C as shown on Figure 2. Revised Tax Lot 14
includes portions of Parcels 3 and 5 and is designated as site Parcel B as shown on
Figure 2 (Doc. Nos. 8, 11).
3.0 SUMMARY
The property known as Peanut Landfill is owned by the City of Mars which
received title to Parcel A in 1966, and Dobson Rock & Concrete, Inc. which received
title to Parcels B, C, and D in 1983. Previous owners of Parcel A include Frank and
Susan Gallippi, Michael Coughlin, Toronto Paper Company, and Duran Enterprises.
The previous owners for Parcels B, C, and D include Dobson Rock & Concrete Company,
Frank and Susan Gallippi, Michael Coughlin, Toronto Paper Company, Elizabeth Duff,
and Duran Enterprises.
10
-------
REFERENCES
Document Number Instrument Date
1 Deed 09-11-45
2 Warranty Deed 10-01-45
3 Deed 03-15-55
4 Warranty Deed 07-25-66
5 Quit Claim Deed 04-05-78
6 Quit Claim Deed 12-16-78
7 Quit Claim Deed 07-20-83
8 Agreement 09-02-83
9 Warranty Deed 03-11-84
10 Report of Court Proceedings 06-26-85
11 Agreement 10-29-81
11
-------
Example 4
Partial Title Search
-------
SECTION 5
TITLE ABSTRACT
EPA requested Chat Contractor X conduct an abstract of title on the ACME
Co. site to determine prior owners. The title abstract was conducted back to
1964, and supporting information appears in Appendix D.
Figure 3 shows the chain of title summary for this parcel, located in
Township 1 South, Range 5 West, Section 11, Nowhere County. The current owner
is Conglomerate Company.
As can be seen in Figure 3, on November 29, 1971 Large-as-Life Insurance
Corporation was deeded the ACME Co. parcel foreclosure. The previous owners
of the parcel, Fred G. Hithere Co. and Lammot D. Cuppers had mortgaged the
land to Large-as-Life Ins. Corp. (Book 7890, Page 351). The owners of the
parcel were in default of a mortgage, which amounted to $1,589,833 (Book a642,
Page 183). It is currently unclear what the mortgage was for. The property
was then foreclosed to Large-as-Life Insurance Corp. by a Sheriff's deed
(Book 8991, Page 734) dated 29 September, 1971.
On August 23, 1974 Large-as-Lite Insurance Corp. sold the ACME Co. parcel
to Mr. and Mrs. Smith and John Doe (Book 10798, Page 328). On April 12, 1978
Mr. and Mrs. Smith sold the ACME Co. parcel to B&M Rental Equipment Co.,
(Book 12834, Page 904), the current owner.
EPA indicated that contamination of the ACME Co. site has occurred after
1973. This would indicate that Mr. and Mrs. Smith and B&M Rental Equipment
Co. are both potentially responsible parties.
There are currently two known leases outstanding on the ACME Co. parcel.
It should be noted that a lease does not have to be recorded with the Marian
County Assessor. Consequently, there may be other leases pending on the
property.
-------
ABC CO.
LARGE-AS-LIFE
MUTUAL LIFE INC. CORP,
(BY FORECLOSURE)
Smith and Doe
B&M EQUIPMENT CO.
Figure 3. Chain of title summary for the B&M Co. parcel, December 13, 1985.
-------
On July 28, 1962 the Agricultural Improvement and Power District leased a
railroad spur that is located on the ACME Co. parcel (Book 16222, Page 331).
This lease cites an unrecorded lease agreement whereby B&M Rental Equipment
Co. leases the ACME Co. parcel to ACME Co. The lease has a period of tive
years. No other documentation on the ACME Co. lease was found.
The land has a current estimated market value of $88,370 including
improvements. This estimate is derived by using a 1.15 multiplier (see
Table 1). However, pesticide contamination could reduce market value prior to
cleanup actions.
-------
Example 5
Corporate Structure/Financial
Assessment
-------
SECTION 4
CORPORATE STRUCTURE/FINANCIAL ASSESSMENT
In determining Che financial status of ACME Co. and B&M Rental Equipment
Co. some assumptions have been made. These assumptions appear in Table 1. It
is important to note that estimations of assets for potentially responsible
parties is based on available data, and is only an estimation of actual
financial status.
ACME CO.
Information on corporate structure was derived from a number of different
sources and is presented below:
Full Corporate Name and Address
ACME Co.
P.O. Box 15
Yourtown, U.S.A. 12345
Facility Address
ACME Co.
P.O. Box 15
Yourtown, U.S.A. 12345
Registered Agent and Attorney
John S. Doe
Anywhere, U.S.A.
Officers, Directors and Incorporators
Jim Smith, President, Director, Shareholder and Incorporator
Dough Smith, Vice President and Incorporator
Mary Smith, Secretary, Director, and Incorporator
-------
Table L. ASSUMPTIONS USED IN DERIVING ASSETS OF
POTENTIALLY RESPONSIBLE PARTIES
To determine market value of land and improvements, contractor x used a
1.19 multiplier for residences, and 1.15 for commercial property. This
information was one estimate from the County Assessor's office. It is
assumed that the multipliers used by contractor x are accurate.
Figures on 1984 income derived from previous years have been increased by
5.05% to estimate 1985 income. It is assumed that this is an accurate
indication of inflation plus salary increases. This figure was derived
from the Economic Report of the President, 1985, p. 291.
If the ACME Co. parcel is badly contaminated with pesticides, this may
adversely affect its selling price. The land and improvements currently
have a market value of $88,369. If pesticide contamination renders this
area unuseable, then this parcel could be worthless.
Values on land and improvements were derived from the County Registry of
Deeds records. It is assumed that these estimates are accurate. If EPA
deems it important to pursue these figures, it may oe necessary to retain
an appraiser to confirm these findings.
Assumes that contamination from the Co. parcel will not depress
surrounding property values. For example, Doe and Smith own at least one
parcel (No. 401 30 010 A) that is contiguous to he Oc. parcel. It
contamination at the Co. site depresses surrounding property values, tnen
estimates of Smith and Doe assets may not be accurate.
Figures on corporate income were derived from Department ot Corporations
Annual Reports. These figures may have not been reviewed by a Certified
Public Accountant. Assumes these figures are accurate.
-------
Company Background
ACME Co. was incorporated in Alabama on December 28, 1970. The
corporation is authorized to issue 2,000 shares of stock at $10.00 par value.
Mr. Smith is listed on the 1985 Annual Report as the sole stockholder of ACME
Co. ACME Co. formulates and custom blends pesticides for agricultural use.
ACME Co. employs 6 people, including officers, and rents a 25,000 square foot
one story aluminum building, presumably from B&M Rental Equipment Co. (d). On
March 21, 1985 there was $20,000 in paid up capital from the stockholder. b&M
Rental Equipment Co. owns the ACME Co. site. Materials used by ACME Co. are
supplied by their customers, primarily local pesticide manufacturers. No
information is currently available on clients of ACME Co. Their manufacturing
season peaks from June to November, and is slow from December to March.
There are a few items of interest which deserve further mention. The Elk
U.S. District Court and the Marian County Court records were searched for
lawsuits pending against ACME Co. or principals. None were found.
Furthermore, none have filed for bankruptcy.
Contractor X also researched records of the Uniform Commercial Code
Division of the State of Alabama. This office records all liens a corporation
holds for capital expenditures. This office reports no liens on record for
ACME Co.
Alabama Department of Transportation records were reviewed to determine
vehicles owned by ACME Co. This information is given in Table 2.
Financial data for ACME Co. is presented in Table 3. It is interesting
to note that a large portion ot" current liabilities is made up by loans from
stockholders.
Current ratio is the ratio of a company's current assets to current
liabilities. It is an indication of a company's ability to quickly meet short
term debts. Generally, a 3:1 ratio is considered safe, but this may vary
considerably depending upon the specific industry in question.
Net income in 1980 dollars is given in Table 3 to show long term
increases and decreases in ACME Co.'s earnings. It is based on 1980 dollars.
There is a significant fluctuation in earnings for ACME Co., no clear increase
or decrease in net income is apparent.
-------
TABLE 2. VEHICLES OWNED BY ACME CO.
Year Make/model
1946 Willy
1973 Travel Van
1978 Dodge Pickup1
1981 Chevrolet Sedan
Note: No liens pending against vehicles except as
footnoted.
1-Lien outstanding for $4,823.76
Source: Alabama Department of Transportation.
-------
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-------
Figures given here indicate chat ACME Co. is a fairly stable company.
However, partial closure costs could have a significant impact on the
financial future of this company.
ACME Co. Principals
Table 4 lists the current addresses and relationship of ACME Co.
principals. All officers have held the same positions since January 1, 1972.
Mr. Smith and Mary Smith were divorced on January 4, 1984 (9). This divorce
record gives a full listing of both parties' assets, and appears as
Appendix C. In this divorce, Mr. Smith agreed to pay $800 per month for child
support, and &300 per month to Mary Smith. He must pay child support until
his children are 18 or emancipated, and he must pay his wife tor a period of 2
years from the time of divorce. Mr. Smith was given all of Ms. Smith's
interest in ACME Co. as well as 400 shares of Elephant Oil Stock. This stock
is currently valued at $62-1/8. It is currently unclear why Ms. Smith is
still listed as Secretary and Director of ACME Co. in their L985 Annual Report
even though she no longer holds an interest in this company. Table 11
includes a summary listing of Mr. Smith and Mary Smith's assets.
Mr. Smith earned $1920.44 per month in January ot 1984. Assuming a
5.05 percent increase per year (10), Mr. Smith now earns approximately i2018
per month, or $24,221 per year.
Mr. Smith is Vice President of ACME Co, and currently resides in
Yourtown. Mr. Smith ownss 40 acres of farmland in Coahoraa County, AL. This
land is identified as parcel no. 2073-000, and has an approximate market value
of $25,959. There are no improvements on the property (Telecon between County
Tax Assessor and Mr. Contractor, December 10, 1985).
Review of Arizona Department of Transportation records revealed no
vehicles were owned by ACME Co. principals.
Contractor X investigated counties in the Yourtown area to determine if
any of the ACME Co. principals are landholders. The following counties were
searched: X, Y, Z and Q. According to the Marion County Assessor, only
Ms. Smith held land. The Marion County Assessor reports the following
information:
-------
TABLE 4. PRINCIPALS OF B&M CO., AND THEIR AFFILIATIONS
Name Affiliation
Mr. Jim Smith President and Director since January 1, 1972,
Incorporator and sole shareholder.
Mr. Doug Smith Vice President since January 1, 1972, and
Incorporator.
Mary Smith Secretary and Director since January 1, 1972.
Source: Articles of Incorporation, Telephone and Informational Directories,
-------
Parcel No. 1
Land Value Improvements Value
18.UOO $39,476
Assuming a 1.19 multiplier for current market value (see Table 1) this
parcel is estimated to be worth $68,396 including improvements.
B&M EQUIPMENT CO.
Corporate structure data has been derived from a number of ditterent
sources, the results of which are presented below:
Full Corporate Name and Address
B&M Rental Equipment Co.
Anywhere, U.S.A.
Registered Agent and Attorney
Mr. Slick
Anywhere, U.S.A.
Officers, Directors and Incorporators
Mr. Smith, President, Director and Incorporator
Mary Smith, Secretary, Treasurer, Director and Incorporator
Company Background
B&M Rental Equipment Co. was incorporated on June 9, 1962 by the above
individuals and is in good standing with the State of Alabama. The
corporation is authorized to issue up to 16,000 shares of common stock at
$1.00 par value. B&M Rental Equipment Co.'s incorporation papers state that
it is involved in "renting and leasing ot tools, cars and other vehicles".
Contractor X researched many local sources of information in Anywhere (see
Project Approach). However, there was no information on the nature of B&M
Rental Equipment Co.'s business, or any indication that the business is active
on a day-to-day basis. According to the Marian County Assessor, B&M Rental
Equipment Co. owns one parcel of land, the ACME Co. site. The Marian County
Assessor gives the following information on this parcel:
-------
Parcel No. 2 Land Value Improvements Value
$12,412 $64,431
Assuming a 1.15 multiplier for current market value (see Table 1) this
parcel is worth $88,370 including improvements. This figure may not be
accurate, however, since pesticide contamination could have significantly
lowered the value of this parcel.
It should be noted that B&M Rental Equipment Co. was incorporated by a
Jim Smith and Mary Smith. It is assumed that these are the same individuals
as the current officers, Mr. and Mrs. Smith.
A few items deserve further mention. The Elk U.S. District Court and
Anywhere County County records were searched for lawsuits pending against B&h
Rental Equipment Co. or principals. None were found. Furthermore, none have
filed for bankruptcy.
Contractor X also researched records of the Uniform Commercial Code
Division of the State of Alabama. This office records all liens a corporation
holds for capital expenses. This office reports no liens on record for B&M
Rental Equipment Co.
Review of Alabama Department of Transportation records revealed no
vehicles were owned by B&M Rental Equipment Co.
Financial data for B&M Rental Equipment Co. is given in Table 5. It
should be noted that current liabilities do not include taxes, and therefore
are not accurate. For this reason current ratio is not included in Table 5.
B&M Rental Equipment Co. had a net income of $5,035 in 1984. It is
currently unknown what the source of this income was. Part of this income may
be from rental of the ACME Co. parcel. Figures on averaged net income show
that B&M Rental has been operating at a break-even level since 1980. During
this 4-year period, net income (1980 dollars) was $52b. Net income in 19bO
dollars is given in Table 5 to show long term increases or decreases in b&M
Rental Equipment Co. earnings. It is based on 1980 dollars. These figures
indicate that B&M Rental Equipment Co. may not be financially stable.
However, sufficient information is not present to make a conclusive decision
on the stability of this company.
-------
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B&M Equipment Co. Principals
Table 6 lists the current addresses of B&M Rental Equipment Co.
principals and their relation to the company. Mr. Jim Smith and Doug Smith
have held the same positions in B&M Rental Equipment Co. since May 1, 1962.
In searching counties in the Yourtown area, Contractor X found that there are
a number of parcels registered under ACME and/or John Smith. Using a 1.19
multiplier (see Table 1) the land currently has an estimated market value of
approximately $289,000. It is important to note that this is only an
estimate. This information should be confirmed by a certified appraiser.
Alabama Department of Transportation records were reviewed to determine
vehicles owned by ACME and/or John Smith.
ACME TRENCHING AND BARRIER
While researching Alabama Department of Transportation records, it was
noted that ACME Associates have an interest in ACME Trenching and Barrier,
Inc. Information supplied below is from Dun & Bradstreet, December 20, 1985.
Full Corporate Name and Address
ACME Trenching and Barrier
Newtown, U.S.A.
Registered Agent
Harry Devine
P.O. 32
Newtown, U.S.A.
Officers and Directors
Jim Smith, President
Doug Smith, Vice President
Mary Smith, Secretary
-------
Example 5
Pages 21 through 26 of Section 4 not included
-------
Example 6
Financial Assessment
-------
4.0 FINANCIAL ASSESSMENT
Financial data obtained from Dun & Bradstreet, Inc., Moody's Industrial Manual,
Standard & Poor's Corporation, and the Glenville Township Assessor served as the
basis for the financial assessment of the potential responsible parties. In certain
cases, financial information was unavailable from these sources. References other
than those listed above are referenced in the text. The information collected is
provided in Attachment III. Addresses, phone numbers and contact persons for the
local manufacturing facility and parent company are provided in Appendix C.
4.1 SITE OWNERS
Linex Landfillers, Inc.
Linex Recycling, Inc. was incorporated in California on September 20, 1973.
Authorized capital consists of 1,000 shares of common stock owned by Laura Jordan,
President. Other officers include:
Larry Jordan, Vice President
Diana Hoover, Secretary
Linex's business and operation have been discussed previously. The companylocation
and headquarters are:
Box 1002
Essex Ave.
Franceville, CA 90274
(705) 336-2044
Assets from land and buildings owned by Linex total $93,810 (Table 8). A balance
sheet for fiscal September 30, 1980 shows the following (Dun & Bradstreet, Inc..
1985):
Current Assets $160,890
Current Liabilities 25,976
Working Capital 134,914
Other Assets 255,070
Worth 364,889
Sales 587,926
4-1
-------
Net Income 30,769
The current ratio (current assets/current liabilities) of Linex in 1980 was 6.2,
which is considered very good. The higher the ratio, the more assurance exists that
the retirement of current liabilities can be made. Normally 2.0 or better is consi-
dered good. The industry financial norm for 1985 is 1.7 (Dun & Bradstreet, Inc.,
1985).
Currently, Delta Express, Inc. is a mortgagee to the property owned by Linex.
The mortgage was issued to secure payment pursuant to the terms of a contract for
5125,000.
Harris and Company, Inc.
Harris and Company, Inc. was incorporated in California on January 1, 1952.
Authorized capital consists of 10,000 shares of common stock owned by the officers.
The principal officers include:
Chris P. Harris Jr., Chairman
James Poitier, President
Jeff Scorpio, Jr., Secretary
Harris' headquarters and facilities to manufacture hardwood lumber are located
at:
662 N. Saline
Franceville, CA
705/336-2777
The true cash value of land with improvements on property owned by Harris is
5517,000 (Table 8). Bill payments are on time indicating good liquidity. Sales are
rated at 5.1 to 10.5 million dollars per annum.
In 1983, a transfer of ownership from CPH, Inc. to MCF, Inc., now known as
Harris, included a 5250,000 promissory note on equipment. In 1983, Harris mortgaged
some property for $300,000 as collateral to secure a line of credit to be fully paid
on or before October 5, 1993 (Attachment II, Harris & Co., Inc., 1983).
4-2
-------
Raymond and Regina Morgan
The true cash value on property owned by Raymond and Regina Morgan in Glenville
Township totals $17,460 for land and improvements. No other financial data was
available.
Franceville, California
Franceville, California may be considered a potential responsible party if the
site is redefined to include adjacent land. Financial information
will be provided on Franceville if directed by the EPA primary contact.
Victor Welsh
Financial information will be provided on Victor Welsh, Inc. if directed by the
EPA primary contact.
4.2 TRANSPORTERS
The only transporter identified was Linex Landfillers, Inc. Financial data for
this company is presented in Section 4.1.
4.3 GENERATORS
Seventy generators were identified as using Linex for disposal services. The
waste from 31 of these companies were reported by Linex as going to Janice County
Landfill. Financial data were gathered for these 31 companies and are located in
Attachment III. The focus of discussion was further narrowed to seven companies
based on the following criteria selected by M & M and the EPA primary contact:
1) The companies represented a cross section of major manufacturing operations
of the PRP generators. At least one company for each major type of
operation was selected. These categories are electroplating, tool and die,
plastics and printing;
2) The companies disposed of large quantities of waste through Linex; and
4-3
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3) The companies were identified by Mr. Moore as possible contributors of
potential hazardous waste to the PK.T site.
The companies chosen (with parent corporations in parenthesis) are:
1) S. P. Hooser & Sons Co.
2) Marel Steel Inc. (Braniff Corp.)
3) Lou Chain Division (Lotex Corporation)
4) Dove, Inc. (Mash Patex, Inc.)
5) Pubix Corporation (Novel Corporation)
6) Merryl and File Division (Merryl, Inc.)
7) Universal Equipment Co., Inc.
The financial assessment of these seven companies includes partial balance
sheets, discussions of significant corporate events and products, and a table of
busienss ratios.
Business ratios that measure solvency, indicate efficiency and reveal profit-
ability for these seven companies are presented in Table 9. These ratios are
produced from the balance sheets presented in Attachment III and the methods of
calculation in Appendix F (Industry Norms and Key Business Ratios, Dun & Bradstrcet,
Inc., 1985).
A company's financial status can be evaluated by comparing its ratio with ratios
of similar companies. Comparisons are made with industry norms specific to the
principle line of business of each company (Dun & Bradstreet, Inc. 1985). The
industry norms are presented in Table 9 in parenthesis. The relative value of the
business ratios can be compared to the norms as indicated at the foot of Table 9. A
complete discussion of the comparative technique is provided in Appendix F.
4-5
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Example 6
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-------
Example 7
Records Compilation/Transactional
Data Base
-------
TABLE OF CONTENTS
Pages
I. INTRODUCTION 1
A. Project Background 1
B. Proj ect Approach 1
C. Sources Contacted 2
II. SUMMARY
APPENDICES
Appendix A: Guidelines for Extraction of Sheffield
Disposal Services Documents
Appendix B: Project Computer Disk Program Operating
Instructions
Appendix C: Generator, Transporter, Document Type, and
Waste Type Match Lists
Appendix D: Units Match List with Unit Conversion
Factors
-------
I. INTRODUCTION
A. Project Background
The Sheffield Disposal Services site is located in an
agricultural area near Sutton, West Virginia. It is comprised of
a fourteen-acre surface impoundment and a forty-acre landfarm.
During operation of the site, from approximately 1963 to 1973,
waste oils and solvents were collected and then disposed of by
surface impoundment, incineration, and landfarm. The State
ordered the site closed in 1979.
Due to the disposal of various liquid organic wastes at the
site, including PCBs, and the subsequent possibility of ground-
water contamination, the site has been ranked for the NPL.
B. Project Approach
In September 1985, Coopers, Inc. received Work Assignment
Number 600 from EPA through P&M to compile a transactional
database from Sheffield Disposal Services site records. The
transactional database would summarize all hazardous waste
transactions of the site from 1963 to 1984. Jane Nixon was
designated as Project Leader for this case and Richard Morris as
Project Manager. Coopers, Inc. met with the primary contact for
the case, Max Kraxi of EPA Region II, to discuss project
objectives and to obtain specific directions regarding the
information to be developed. Larry Everts, EPA Region II, was
appointed the new primary contact as of December 1, 1985.
Coopers, Inc. personnel travelled to Des Plaines, Virginia,
to meet with the primary contact and to examine documents which
EPA had obtained from the site owners, Fred and Connie Sheffield.
Those documents containing transactional information were then
photocopied in Des Plaines, Virginia, and shipped to the Coopers,
Inc. Office in Winson, Georgia. A computerized summary listing
of Virginia Waste Shipping Control Tickets obtained from the
State by EPA was also photocopied and sent to the Coopers, Inc.
office in Winson, Georgia.
Coopers, Inc. was instructed by EPA to organize the document
copies into generator files and then chronologically into
transactions within each generator file. At the request of EPA,
the computerized database system was developed to be compatible
with an IBM PCXT. Transactional information from each document,
i.e., waste type and volume, was entered onto data sheets which
were subsequently entered into a computer database. As a quality
assurance measure, this information was then printed out and
compared with the document copies for accuracy. Every document
was compared with its corresponding database entry to provide
100% quality assurance.
-------
C. Sources Contacted
The sources listed below were contacted by telephone or in
person by Coopers, Inc.:
U.S. E.P.A. CONTACT
Max Kraxi
U.S. E.P.A. Region II
Air and Waste Management Division
305 S. Rossi Avenue
Des Plaines, Virginia 22070
Telephone: (703) 265-0000
Larry Everts
U.S. E.P.A. Region II
305 S. Rossi Avenue
Des Plaines, Virginia 22070
Telephone: (703) 765-0000
II. SUMMARY
In accordance with P&M Work Assignment Number 600, the
following tasks have been completed:
Task 1: Initial contact and discussion with Region II
personnel.
Task 2: Review and copying of EPA records regarding
the Sheffield Disposal Services site. Record
copies organized into files.
Task 3: Entry of information from records into a
computer database, including generator,
transporter, waste type, and volume.
Deliverables for this Work Assignment include the following:
o A computer disk containing the transactional database.
o A computer printout of the transactional database.
o A users guide to accompany the computer disk.
A brief explanation of each of the attached Appendices is
listed below:
-------
Appendix A - contains a description of the guidelines used
in the data extraction phase of the case. These guidelines have
been discussed with, and accepted by, the EPA primary contact.
Appendix B - contains the computer program users guidelines.
The computer disks, transactional database printout, and the two
boxes of site document photocopies will be sent under separate
cover.
Appendix C - consists of the following match lists:
1. Generators of wastes deposited at Sheffield Disposal
Services site.
2. Transporters of wastes deposited at Sheffield Disposal
Services site.
3. Types of wastes deposited at Sheffield Disposal Services
site.
4. Types of documents present in the Sheffield Disposal
Services site files.
Appendix D - contains a list of units used in the database
and a list of unit conversion factors which have been used for
the generator ranking summary.
-------
APPENDIX A
-------
APPENDIX A
GUIDELINES FOR EXTRACTION OF
SHEFFIELD DISPOSAL SERVICES DOCUMENTS
JULY, 1986
I. INTRODUCTION
Photocopies of documents obtained by EPA Region II from the
Sheffield Disposal Services site were sent to Coopers, Inc.,
in Winson, Georgia. At EPA's request, Coopers, Inc.
compiled a database summarizing transactions involving the
deposition of wastes at the Sheffield Disposal Services
site. The attached printout displays the transactional
information from the documents and is sorted by generator.
II. DESCRIPTION OF FIELDS IN THE DATABASE
The transactions have been sorted alphabetically by
generator and listed in chronological order within each
generator on this printout. Individual transactions are
separated by lines, with three transactions per page. The
headings for the entries in the printout correspond to the
fields in the database. When possible, information was
extracted from the documents exactly as it appeared on the
documents. General exceptions are noted below, and
exceptions for a specific transaction are noted in the
comments field for that transaction. Information not
present in a given field on a document was entered as "Not
Ind" (not indicated) in the appropriate field. Information
present but illegible on a document was entered as
"Illegible" in the appropriate field.
A. Generator
Generators are identified as those parties responsible
for the disposal of wastes at the Sheffield Disposal
Services site. Documents such as Virginia Waste
Shipping Control Tickets identify the generators as
such. In other documents, such as invoices or shipping
orders, the generator is identified as the party billed
for shipments of waste disposed of at the Sheffield
Disposal Services site. A list of the generator names
and their respective computer access code numbers
appears in Appendix C.
-------
B. Date
The date appearing in the printout for each transaction
represents the shipment date. This date was generally
found on the following document types:
Shipping Order
Way Bill
Bill of Lading
Memo Acknowledging Bill of Lading
Virginia Waste Shipping Control Document
Purchase Order
When the shipment date was not available, the invoice
date was entered and was followed by an "E" for
estimated date. If the invoice date was not available,
a date was estimated from other documents which may have
been present.
When a complete date was not available, "01" was entered
in place of the missing information. An "E" was then
entered in the field immediately following the date to
indicate that it was estimated. Incomplete dates were
also estimated by inferring information from the
preceding or following documents when available. These
dates were denoted with an "E". Documents not having a
date were entered as 01/01/99 and were also denoted with
an "E", i.e., 01/01/99E.
C. Waste Type
The waste type was extracted as it appeared on the
documents. For those transactions having more than one
supporting document, the most specific waste type was
used. For example, if there were two supporting
documents for a transaction with waste types given as
"sludge" on one document and "electroplating sludge" on
the other, "electroplating sludge" was entered. Where
the waste type description was too lengthy to fit in the
database, an asterisk "*" was entered as a flag for the
user to check the original document for a complete
description. Lengthy waste types were also abbreviated
if possible. The following abbreviations were used:
AL Aluminum
ALK CMPND Alkaline Compound
AMMON Ammonium
AROM Aromatic
CA Calcium
CONTAM Contaminated
DIOX Dioxide
-------
FE Iron
HAZ Hazardous
HCI Hydrochloric Acid
HYDROCARB Hydrocarbon
INORG Inorganic
METH CHLOR Methylene Chloride
MIN SPIRITS Mineral Spirits
MISC Miscellaneous
NA Sodium
NONCHLOR Nonchlorinated
ORG Organic
SOLN Solution
SOLV Solvent
SULF Sulfuric
TETRA Tetrachloride
VEG OIL Vegetable oil
In those cases where several waste types with associated
quantities per waste type appeared on a single document,
each waste type with its respective quantity was entered
as a separate transaction. For example, a document
listing 40 gallons of waste oil, 5,000 gallons of
sludge, and a 150-pound cylinder of chlorine was entered
as three separate transactions, one for each waste type.
If several waste types appeared with only one quantity
on a document, the waste types were listed together and
treated as a single transaction. Thus, a document
listing 500 barrels of used oil, waste water, and sludge
was entered only once with a waste type of used
oil/waste water/sludge.
A list of waste types and associated computer-access
codes can be found in Appendix C.
D. Waste Volume
The waste volume was extracted as it was written on the
documents.
E. Waste Unit
Waste units were generally extracted as they appeared in
the documents. However, for those transactions with
more than one supporting document in which more than one
unit was listed, the more specific unit was used. For
example, if units such as drums and gallons appeared on
different supporting documents, gallons was used.
Appendix D contains a list of units used plus computer-
access codes.
-------
For purposes of a final generator ranking summary, each
unit has a calculated conversion factor so that total
volumes of waste may be expressed in one unit, gallons.
Units such as loads and cartons were given a conversion
factor of 0.00. Cylinders of gas were also not
included. The generator ranking summary will therefore
not account for the following units: cartons,
cylinders, lots, and cases. A listing of the units with
their respective conversion factors is also included in
Appendix D.
F. Transporter
The transporter often appears on documents as the
"hauler," "carrier," or under "ship via:" as on a
purchase order. A list of transporters with their
respective computer-access codes appears in Appendix C.
G. Destination
The destination of wastes as indicated on the documents
was generally Sheffield Disposal Services. Other
destinations included Peace Waste Disposal and the Label
Company, in which case wastes were shipped from a
generator to Sheffield Disposal Services and then from
Sheffield Disposal Services to the respective company.
H. Document Type
Many different types of documents were present in the
Sheffield Disposal Services site records. These
document types and their associated codes are listed in
Appendix C. Documents which did not contain a printed
name, such as "invoice" or "purchase order" were given a
descriptive name, as in "typed statement," or
"handwritten notes."
I. Document Number
Unique, pre-printed business form numbers which were
used by the generator to reference a document were
considered to be document numbers.
J. Inventory Number
Inventory numbers were assigned to the documents
subsequent to their receipt by EPA. Each document was
stamped with a unique, alpha-numeric number which
appears in the lower right-hand corner of each page.
-------
K. Code
A comment field has been included in the database. A
single letter entered in the "code" field of the
printout is an indicator of missing or unclear
information. An explanation of each code letter can be
found at the beginning of the printout and also on the
computer database. A list of the comment codes and
their explanations appears below:
Code Explanation
A Outgoing waste shipment from Sheffield Disposal
Services.
B Outgoing waste shipment from Sheffield Disposal
Services to Label Company.
C Peace Waste appears on documents as broker or
middleman.
D Sheffield Disposal Services is not specifically
mentioned on this document, but was assumed to
be the disposal site due to information present
on similar, adjacent documents in the file.
E Transaction is also listed under State of
Virginia Receiver Monitoring Reports, as "Waste
Shipped but not Received."
F Document number obtained from Virginia Receiver
Monitoring Reports.
-------
APPENDIX B
-------
APPENDIX B
PROJECT COMPUTER DISK
PROGRAM OPERATING INSTRUCTIONS
INTRODUCTION
The Sheffield Transactional Database Management System is a
menu-driven program written in dBASE III and operational on all
personal computers supporting dBASE III. The system operates in
two modes: one for the manager, who has the capability of adding,
editing, and deleting data; and one for the user, who can access
the information in the form of database searches and reports, but
cannot alter the contents. The manager mode is password-protected
to ensure the integrity of the data. The system employs
multicolored screens, but also operates on monochrome monitors.
The program is delivered with a database that has been checked for
accuracy in content, based on the documents available.
INSTALLING THE SYSTEM
The system is delivered with the assumption that it will be
installed on a 10 megabyte fixed disk of an IBM PC or compatible
using MS-DOS operating system. The programs and data files will
occupy approximately 1.5 megabytes of disk storage, and have been
placed on four sequentially-numbered floppy disks with the MS-DOS
"BACKUP" command.
It is suggested that a subdirectory be created on the target
system's fixed disk. If the subdirectory is called "SHEFIELD",
follow this series of commands with the first floppy disk in the
"A" drive:
C> RESTORE A: C:\SHEFIELD\*.*
Insert the remaining floppy disks in order, as prompted.
STARTING THE SYSTEM
Set the current directory to the subdirectory where the
program resides; for example:
0 CD C:\SHEFIELD
Bring up dBASE III. Obtain help from your system
administrator or follow the instructions in the dBASE III user's
manual. From the dBASE III "dot" prompt type:
. SET DEFAULT TO C
. DO SHEFIELD
-------
From this point all terminal input will be with the database
management program until the program is terminated.
MANAGER VERSUS USER MODE
The first menu to appear allows selection of the mode in which
to operate. The manager mode requires a password to continue to
the menu of management functions. When entering the password, the
characters will not be shown on the screen. The password can be
obtained from the primary contact. Selection of the user mode
immediately brings up the menu of user functions, which is actually
a limited subset of the manager functions with the exception of the
review database records option. If a color screen is used, all
management operations are conducted with an amber screen and all
user functions are displayed in green.
DESCRIPTION OF SYSTEM FUNCTIONS
The following descriptions detail the operational features of
the program. The "M" and/or "U" in parentheses next to the
function indicates which mode offers this command (M-Manager,
U-User).
Add Database Records (M)
Choosing this option begins the sequence to add new data to
the database. A sub-option is offered to allow the previous
record's information to be brought into the new record, then
modified. This is useful when a series of records contain similar
data. Information is input via a formatted screen.
The "arrow" keys on the keypad can be used to move the cursor
around the screen. The "insert" and "delete" keys on the keypad
are also useful for modifying the information as it is added.
Holding the control key (CTRL) and the "END" key from the keypad
simultaneously will end the add sequence at any point on the input
screen. The program will prompt to continue or return to menu,
allowing the user to continue adding records or return to the
function menu.
Edit Data By Record Number (M)
This option allows the manager to alter data in existing
records. The program prompts for the record number to be edited,
then displays the record with the same screen as the "add" feature.
The special keys described for the "add" feature function in this
option also.
-------
Delete Data- Records
This option prompts for the record number of the record to be
deleted, then displays the information of the selected record in a
formatted screen. The manager is given the option of recalling the
record or actually deleting it. It should be noted that after a
record is deleted, the record numbers for all subsequent records
will change. Also note that after any delete, add, or edit
functions have been performed, the utility option of reindexing the
database must be performed for the program to work properly.
Search the Database (M. U)
This option presents a number of sub-options. The user
selects whether a list of the record numbers meeting the search
criteria is desired or if a display of the data in individual
records is desired. The user also selects whether or not to print
the results of the search or view the results on the screen.
Once these options are selected, the search selection screen
is displayed. This displays the database items that can be
searched with a code number used in the construction of the search
phrase. The search phrase is constructed by:
1. Selecting the search parameter by number;
2. Selecting the search operator (e.g., = , >, <, $) from
the list in the right, bottom screen;
3. Entering the information to be searched for in the
space provided as "condition."
Thus, a phrase is created that can be read as "search for records
where VOLUME is greater than 10000 gallons." Note that where data
is coded, such as in generator name, the condition must be the code
number of the generator, not the name itself. Refer to
alphabetized lists of codes in Appendix D.
It is possible to search on a combination of up to three
phrases. These are entered in sequence from the search selection
screen. The combined phrases are joined by the "AND" operator
only. No "OR" operator is available. For example, searches are
conducted as: "search for records where phrase 1 AND phrase 2 AND
phrase 3 are all true."
When the "display individual records" option is in effect, the
first record in the database meeting the search condition(s) is
displayed and the option to search for more records meeting the
condition(s) is given. This will step through all records meeting
-------
the condition(s) until no more are found. Also note that in the
manager mode, the records are displayed in a format that allows the!
record to be edited, but in user mode the record contents are
displayed but cannot be altered.
Generate Reports (M. U)
Selection of this option allows reporting of data in any of
three report formats. The quality assurance and the final reports
are similar except for the order in which the data are reported.
The QA report appears in the same order that the records were
entered into the database. The report prints the record number and
all the data fields, irrespective of whether data exists in the
fields. The final report is sorted alphabetically by generator and
chronologically within each generator and, in most cases, only
prints fields where data have been entered. The final report
option allows for the selection of a single generator to be printed
out or for all generators to be printed.
The summary report shows one line per generator, with the
total gallons of waste generated and the percent of total waste.
The summary is calculated by converting all volumes to gallons,
according to predetermined conversion factors for all non-gallon
units. The conversion factors are in the "units" match file. All
reports are in 80-column format.
A list of the generators sorted alphabetically and their
corresponding match codes can be displayed either on the screen or
printed. Also, the user can print out a list of explanation codes
which were used in the transactional database.
Utility Menu fM)
This option must be selected whenever records have been added
or deleted from the database or when records have been edited to
change generator information. The only option available is to
reindex the database. This also updates generator information
which is used for the summary report. Errors in reported results
will occur if this option is not performed after the database is
altered.
Review Database Records (U)
This unique user option allows individual records to be
displayed on the screen. Records are chosen by number only, but
are found instantaneously as opposed to the search function which
can take some time. Once records are displayed, they can be
printed individually by pressing the shift key and the "PrtSc" key
simultaneously (this is referred to as a "Screen Dump").
-------
Quit the System fM. in
This option is selected at the end of a working session. It
is important to select this option to quit the program. Never turn
off the computer without first using this option - DATA CAN BE
LOST. If you are working with the program on removable disks,
never remove the disk until you have quit the system.
BACKING UP THE DATA
No program provision has been made for backing up data,
because the program can be run from various disk drives and system
configurations. Data should be backed up periodically by copying
all DBF-extension files to other disks. This should be done from
the DOS level with the COPY command. Use the BACKUP command if the
files are too large for the disk to which files are being copied.
It is a good idea to keep a backup copy of all PRG- and
FMT-extension files in case the program itself should be corrupted.
Consult with the system administrator for assistance.
MODIFYING CODED DATA
The program makes no provisions for modifying the files that
contain coded data. These files are referred to as "match files"
because they have a match for the code in the main database. Match
files can be altered at the dBASE III system level by someone
knowledgeable in dBASE III. These files must not be sorted in any
other order than by the code number, or errors will occur in
matching the data. It is important for the match number to always
equal the record number in the match files or incorrect information
may be printed. Create index files to view the match files in any
other order.
-------
APPENDIX C
-------
APPENDIX C
GENERATOR MATCHLIST
Code Generator
1 A&P INK
2 AMERICAN CHEMICAL, INC.
3 AMERICAN PRINTING CO.
4 AMERICAN WAXING CO.
5 ANVER OIL, INC.
6 APEX REFINING CO.
7 DIXON REFINING CO.
8 DOBSON STEEL, INC.
9 DOLE PRINTING
10 DUREX CHEMICAL CO.
11 FARGO OIL, INC.
12 FONNIE REFINING, INC.
13 GAFF OIL CO.
14 MA-CHEM, INC.
15 NEIL CHEMICAL CO.
16 NEWIS OIL CO.
17 POLIET CHEMICAL CO
18 PUNX UNIVERSITY
19 SONYX OIL CO.
20 SOUTHLANE STEEL CO.
21 TULSA CHEMICAL CO.
-------
GENERATOR MATCHLIST (CONTINUED)
===================
Code Generator
22 VAMP OIL CO.
23 WEBB REFINING CO
24 WOLFF OIL, INC.
25 XENON OIL CO
26 ZAPP CHEMICAL
i
-------
TRANSPORTER MATCHLIST
Code Transporter
1 ARNOLD TRUCKING
2 BORRIS TRUCKING
3 BANIF TRANSPORTATION
4 CIME WASTE EXPRESS
5 CUBIX CHEMICAL CO.
6 DINEX TRUCKING
7 FALLS LTD
8 F&F TRANSPORT, INC.
9 G&S WATER CARRIER
10 GANTE TRANSPORT, INC.
11 HOOLER OIL CARRIER
12 ILLINOIS DISPOSAL SERVICE
13 JAPP TRANSPORT, INC.
14 JOHN DELIVERY SERVICE
15 KENOL EXPRESS
16 KELVIN TRANSPORTATION
17 LUMBARD EXPRESS
18 LENOX TRANSPORTATION
19 MOONEE EXPRESS
20 PAX WASTE CARRIER
21 REX TRUCK LINES
-------
TRANSPORTER MATCHLIST (CONTINUED)
=====================
Code Transporter
22 R&R TRUCKING
23 RALPH TRUCKING
24 SUNNY DISPOSAL SERVICE
25 TOLSON REFUSE CARRIER
26 VAN TRUCKING
27 WARREN TRANSPORTATION
-------
DOCUMENT TYPE MATCHLIST
Code Document
1 CHECK STUB
2 WAY BILL/BILL OF LADING
3 CORRESPONDENCE
4 HANDWRITTEN NOTES
5 INVOICE
6 LAB REPORT
7 MEM ACK. BILL OF LADING
8 SHIPPING ORDER
9 STRAIGHT BILL OF LADING
10 VA SHIPPING-CONTROL TICKT
11 TYPED STATEMENT
12 WAYBILL
13 WEIGHT TICKET
14 WEIGHT TICKET/BILL LADING
15 BILLING STATEMENT
16 PURCHASE ORDER
17 BILL LADING/FREIGHT BILL
18 TAPE RECEIPT
19 CONF. OF REMOVAL (GEN)
20 MANIFEST/BILL OF LADING
21 OFFICE MEMORANDUM
-------
DOCUMENT TYPE MATCHLIST (CONTINUED)
Code Document
22 CHECK STUB/TYPED STATEMT.
23 DELIVERY TICKET/TIME CARD
24 SCALE WEIGH TICKET
25 LETTER OF RECEIPT
26 LETTER OF INTENT
27 CONFIRMED PURCHASE ORDER
28 SHIP CTRL TICKET/BILL LAD
29 SHIP CTRL TICKET/WGH TKT
30 REQUISITION
31 INSTRUCTIONS
3 2 CONTRACT
33 CONDITIONS
34 LADING/WAYBILL,WEIGH TKT
35 APPLICATION FOR DISPOSAL
36 PHYSICAL PROPERTIES INFO
37 NOTE AND STATEMENT
38 REQUISITION/WASTE RECD
39 HANDWRIT NOTE-WASTE RECD
40 HANDWRITTEN INVOICE
-------
WASTE TYPE MATCHLIST
Code Waste
1 ANHYDROUS AMMONIA
2 CHEMICAL WASTE
3 CHLORINE
4 COOLING TOWER SLUDGE
5 CUTTING OIL
6 DRILLING MUD, OILY
7 FISH OIL EMULSION
8 FLOCKING WASTE
9 GLYCOL/HYDROCARBON/WATER
10 LIQUID WASTE
11 LUBE OIL/WATER
12 MOLASSES/WATER
13 MUD/SILT/WATER
14 NON-HAZ WASTE WATER
15 OIL/WATER
16 OILY WATER
17 SPENT CAUSTIC
18 WASHRACK SUMP MATERIAL
19 ALUM OXIDE/TITAN DIOXIDE*
20 FISH OIL EMULS/OIL/SLUDGE
21 OIL/WASTE WATER
-------
WASTE TYPE MATCHLIST (CONTINUED)
Code Waste
22 OIL/SOAP/WASTE WATER
23 WASTE OIL/WATER
24 MOTOR OIL/DIE OIL/WATER
25 WASTE OIL
26 WASTE WATER, CLASS 3
27 WASTE CODE 241050
-------
APPENDIX D
-------
APPENDIX D
UNITS MATCHLIST
Code
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Unit
BARRELS (S)
CUBIC YARD (S)
GALLONS (S)
LOAD (S)
CARTON (S)
150-LB CYLINDER
TANK TRUCK (S)
4 2 -GAL. BARREL
2000-LB CYLIND.
DRUM (S)
POUND (S)
CUBIC FEET
5 5 -GALLON DRUMS
LOT
PINTS
2 5 -GALLON DRUMS
CASES (24 CANS)
ILLEGIBLE
NOT INDICATED
Conversion Faction
55.000
201.960
1.000
0.000
0.000
0.000
4500.000
42.000
0.000
55.000
0.125
5452.920
55.000
0.000
0.125
25.000
0.000
0.000
0.000
-------
Example 8
Generator Ranking
-------
CW09/86
SITE - Site Records
Ranking of Generators by I oral 'waste Disposed
i'age
Rank Generator
Total Volume (gallons)
,
~ '
3.
4.
5 .
6.
7
8.
Q
10.
- 1
12 .
" 3
1^ .
15 .
16 .
IE.
19 .
20.
2"
22
93 '
24.
25 .
26 .
27 .
2E.
00
30.
;-
**' *3
3^
3 c
36 .
37 .
3£.
39 .
40.
41.
42.
*'
i i.
46 .
47 .
48.
49.
50.
51.
52 .
217250
67550
65501
62645
55385
51900
50120
39130
29195
26400
25000
16830
16656
15665
13090
11990
8800
£313
S195
6930
6490
5610
5000
4565
3660
250i
20S2
2915
2915
2^58
2145
2090
1375
1265
1210
1100
825
688
660
643
605
500
385
334
331
330
330
330
220
165
-------
Page
04/09/86 c-rT-f . Sj.Ce Records
K . Tn-a.1 P-ice Paid for Disposal
Ranking of Generators by Tout! P.ice
Toral Price (dollars)
Rank Generator -
64279.00
""56185.00
, 28557.50
' 28026.25
*' 23387.00
' 19465.00
:* 18756.00
' 18616.00
R , 17265.00
' 14019.00
,0' 10000.00
11 8175.00
To" 7138.00
"3 7089.00
{4' 6626.00
,5' 5280.00
£6' 5122.00
17' 4785.00
V 4072.50
To' 3750.00
on' 3150.00
2i' 3025.00
£r 2772.00
oT' 2616.00
04" 2305.00
ot;" 2040.00
9g' 1947.00
27' 1664.00
28* 1500.00
oo' 1500.00
30' 1428.00
,T_' 1325.00
V 1300.00
,3' 900.00
34' 900.00
i^' 840.00
36' 750.00
37 718.00
38* 713.00
,o' 712.00
40' 668.00
,l' 596.00
42' 575.00
£,' 570.00
4^' 500.00
45' 420.25
46' 418.00
47' 400.00
48* 300.00
49' 250.00
50' -25.00
51- 200.00
52.
-------
0-V09/86
Generator:
"Jaste Description
Acetate
Acetone
Bevflt 551 DOtyno cynate
Chemical waste
Com ivrup
torn syruD waste
Etrtylene elvcc4
C.L. silxicone
Clue
Isoorooenol
K.E.t.
K.i.t. ECPBD cnemicelt
MOKDUR P f
Metnvier»e chloriae
Hixec cnemicaic
Mutt
Mult 5903
Oil
Poty oiI
Poly oxialkvlene
Povol
Siuope
SoiveriT starward R66
Stcpoit BA ^ZTo
Toiuene
Waste Kerosene
Waste oiI
Water treatment
Water treatment waste
SITE - Site Records
taste Types and Volumes
Total Volume (Gallons)
55
no
Z20
1250
6105
615
55
55
165
55
1155
55
275
Z255
22-
55
165
770
55
55
no
55
10
55
1*3
55C
-------
GENERAL ELECTRONIC
APPENDIX A
TELEPHONE INTERVIEW SUMMARIES
-------
1/30/85 Marsha Thomas, U.S. EPA Region 15. The site is currently being used for
storage of transformers. No other activity is occurring at the site.
2/10/85 Douglas City Hall. PCB level at the General Electronic site was lower
than the amount allowed to be released.
2/13/85 Jim Ford. Office of Environmental Health, State Health Service Division.
There was no containment of the PCB plume.
2/14/85 John Bronson, GW Air Pollution Control. Described the curtain pit burner
incineration process. Bronson cancelled General Electronic permit to
operate and incineration due to deteriorating walls of the incinerator.
General Electric is on the Superfund List. Groundwater level is within 10
feet of the curtain pit burner and the ground was soaked up with oil
around the incinerator.
3/1/85 Claude Wilson, former property owner. These partners were involved in the
business: Wilson, Dunn (deceased), and Michelle Monroe. Approximately 10
years ago. Claude Wilson sold his one-third of the business to Jerry
Gordon. Petty sold her inherited one-third of the transformer business
to Jerry Gordon. Dux Chemicals is buying the property from Claude Wilson.
3/5/85 Michelle Monroe, partner, General Electronic. Claude Wilson initially
owned the 40 acre parcel of land. Jerry Gordon and Ms. Monroe are equally
owning partners. Ms. Monroe and Mr. paid Claude Wilson rent after he
leased to two acre parcel of land from Dux Chemicals. Payment was charged
to Mr. Monroe and Mr. Gordon for the land until 1984. No wastes have been
removed from the property.
3/5/85 Jerry Gordon, Blending Machine, partner, General Electronic. Michelle
Monroe owns and operates one-half of General Electric business. Mr.
Gordon stated that he was a non-operating partner and had nothing to do
with the business transactions of General.
3/4/85 Nate Nixon, TSCA, U.S. EPA Region. TSCA inspections were made on for
improper storage of oil, violation of broken storage of PCBs, burning PCB
oils, and lack of proper files.
3/5/85 Michelle Monroe, partner, Mr. Monroe explained what PCB laden oil and
non-PCB laden oil was used for. He also explained the business operations
at Northwest Transformer.
3/7/85 Nate Nixon, TSCA, U.S. EPA Region 3. Oil was drained into a 4,000-gallon
bulk storage tank. The bulk storage tank did not cause the contamination
but, the storage of the oil draining from the transformers to the bulk
storage tank caused the contamination.
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3/7/85 John Adams, Dux Chemicals is moving to another location east of Dolton,
near the Empire Wood Company.
4/8/85 Norris Bolinbrook County Environmental Health Department. The Dolton-Dip
garbage dump did not contribute PCB contamination to General Electronic.
4/8/85 Kathy Olson, Empire Wood Company trucks have been seen on Road. Trans-
formers and green boxes are being disposed of at the back of Sumatra a
wood shaving outfit.
4/8/85 Sumatra, a wood shaving outfit. No trucks have been seen moving materials
on Grand Road.
5/13/85 Nate Nixon, TSCA, U.S. EPA Region 3. The records sub^^o'haed are extensive
and include 15-20 utility companies. TSCA and Superfund are trying to
coordinate both their activities to assist each other. Sampling had
started March 17, 1985 and initial activities had started April 1, 1985.
The by-products of PCBs are an issue being considered.
5/14/85 Marsha Thomas, U.S. EPA Region 3. The transformers are being moved to
Grand to be stored on privately owned property which does not have to be
RCRA approved.
6/11/86 John Bronson, Davis Air Pollution Control. On April 11, 1972, Northwest
Transformer filed notice with Davis Air Pollution Control to build an
incinerator. It was approved April 14, 1972. General Air Pollution got
involved because of complaints from residential areas. The salvage yard
incinerated transformers in an open pit from 1961 - 1972. On May 5, 1977
black smoke was observed. The salvage yard used oil to start their
burning operations. January 13, 1984, Bronson told Mike, that if they
were going to use the incinerator they should repair it. Davis Air Pol-
lution Authority wrote a letter to Scrap on January 29, 1985 stating that
they weren't allowed to use the incinerator. They replied stating that
the incinerator had not been used since 1984. On February 6, 1985, their
permit to operate the incinerator was cancelled.
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Marsha Thomas
Nate Nixon
Daniel Hooser
FEDERAL GoAsfNMENT CONTACTS
U.S. EPA Region 15
57 East Wood Street
Saline, KS 67007
(900) 224-3205
U.S. EPA Region 15
57 East Wood Street
Saline, KS 67007
(900) 224-3772
U.S. EPA Region 15
57 East Wood Street
Saline, KS 67007
(900) 224-2704
STATE GOVERNMENT CONTACT
John Bronson
John Wayne
Davis Air Pollution Control
67 East Randolph Avenue
Oak Park, KS 67007
(900) 304-7200
Department of Health Services
907 North State Street
Bronx, KS 67003
(900) 624-1222
LOCAL GOVERNMENT CONTACTS
Burt Eastwood
Phillip Norris
Bob Carrington
Douglas City Hall
Bolimbrook County Environmental Health Department
102 South Kennedy Drive
Harvey, KS 67072
(900) 242-1050
Bolimbrook County Environmental Health Department
102 South Kennedy Drive
Harvey, KS 67072
(900) 242-1114
Department of Social and Health Services
609 South Jeffrey Avenue
Saline, KS 67145
(900) 762-4005
256 West Ford Drive
Dolton, KS
(900) 692-2645
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Michelle Monroe
Two locations:
Jerry Gordon
Claude Wilson
John Adams
Gerald Regan
Jeff Reagan
Kathy Olson
Washington
Holly Apple
PRIVATEi CITIZEN CONTACTS
Partner, General Electronic
Main facility
50 South 2nd Avenue
Dolton, KS 67228
Partner, General Electric
Blending Machine
P.O. Box 202
Saline, KS 67137
Work: (900) 335-9991
Partner property owner
420 Clark Street
Moline, KS
(900) 667-3220
Partner, property owner
Dux Chemical
60 North Nostrand Avenue
Harvey, KS 67248
(900) 125-6661
Attorney at Law
P.O. Box 35
222 South Claxton
Dolton, KS 67228
(900) 165-2002
Healthy Environment
39 South Melon Road
Saline, KS 67145
(900) 167-2449
Empire Wood Company
6720 Manish Avenue
Dolton, KS
(900) 165-9027
981 West 66th Street
Dalton KS 67228
(900) 165-5620
472 North Clarendon
P.O. Box 670
Dolton, KS 67228
(900) 165-4403
Scrab
309 West 77th Street
Dolton, KS 67228
Home: (900) 675-3332
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