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
13
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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:
30
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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.
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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)
39
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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:
42
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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.
45
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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
57
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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.
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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.
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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.
83
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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.
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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
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(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)
-------
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:
101—Definitions 1
102—Reportable quantities and additional designations 9
103—Notices, penalties 10
104—Response authorities 12
105—National contingency plan 31
106—Abatement action 35
107-Liability 36
108—Financial responsibility 46
109—Civil penalties and awards 49
110—Employee protection 52
111—Uses of fund 53
112—Claims procedure 60
113—Litigation, jurisdiction, and venue 65
114—Relationship to other law 70
115—Authority to delegate, issue regulations 71
116—Schedules 71
117—Public participation 72
118—High priority for drinking water supplies 73
119—Response action contractors 74
120—Federal facilities 78
121—Cleanup standards 83
122—Settlements 90
123—Reimbursement to local governments 100
124—Methane recovery 100
125—Section SOOKbXSXAXi) waste 101
126—Indian tribes 101
TITLE H—HAZARDOUS SUBSTANCE RESPONSE REVENUE ACT OF 1980
Section: 201—Short title; amendment of 1954 code 102
SUBTITLE A—IMPOSITION OF TAXES ON PETROLEUM AND CERTAIN CHEMICALS
Section: 211—Imposition of taxes 102
[SUBTITLE B—ESTABLISHMENT OF HAZARDOUS SUBSTANCE RESPONSE TRUST FUND
[Section:
£221—Establishment of hazardous substance response trust fund 113
[222—Liability of United States limited to amount in trust fund 114
[223—Administrative provisions 114]
SUBTITLE C—POST-CLOSURE TAX AND TRUST FUND
Section:
231—Imposition of tax 116
232—Post-closure liability trust fund 117
TITLE UI-MISCELLANEOUS PROVISIONS
Section:
301—Reports and studies 117
(in)
-------
IV
Section—Continued
302—Effective dates, savings provision 123
[303—Expiration, sunset provision 123]
304—Conforming amendments 123
305—Legislative veto 124
306—Transportation 125
307—Assistant Administrator for Solid Waste 125
308—Separability 126
309—Actions under State law for damages from exposure to hazardous
substances 126
310—Citizen suits 127
311—Research, development, and demonstration 128
312—Low Canal property acquisition 136
TITLE IV—POLLUTION INSURANCE
Section:
401—Definitions 137
402—State laws; scope of title 138
403—Risk retention groups 138
404—Purchasing groups 140
405—Applicability 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:
118—Miscellaneous provisions 143
120—Federal facilities 150
121—Cleanup standards 150
124—Methane recovery 151
126—Worker protection standards 151
127—Liability limits for ocean incineration vessels 153
203—State procedural reform 153
205—Cleanup of petroleum from leaking underground storage tanks 154
209—Research, development, and demonstration 161
211—Department of Defense environmental restoration program 162
213—Love Canal property acquisition 169
TITLE III-EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBTITLE A—EMERGENCY PLANNING AND NOTIFICATION
Section:
300—Short title, table of contents 169
301—Establishment of State commissions, planning districts, and
local committees 170
302—Substances and facilities covered and notification 171
303—Comprehensive emergency response plans 172
304—Emergency notification 174
305—Emergency training and review of emergency systems 176
SUBTITLE B—REPORTING REQUIREMENTS
Section:
311—Material safety data sheets 177
312—Emergency and hazardous chemical inventory forms 179
313—Toxic chemical release forms 182
SUBTITLE C—GENERAL PROVISIONS
Section:
321—Relationship to other law 189
322-Trade secrets 189
323—Provision of information to health professionals, doco>rs, nurses 193
324—Public availability of plans, data sheets, forms, and followup notices. 195
325—Enforcement 195
326—Civil action 198
-------
Section—Continued
327—Exemption 200
328—Regulations 200
329—Definitions .,. 200
330—Authorization of appropriations 201
TITLE IV-RADON GAS AND INDOOR AIR QUALITY RESEARCH
Section:
401—Short title 201
402—Findings 201
403—Radon gas and indoor air quality research program 201
404—Construction of title 203
405—Authorizations 203
TITLE V-AMENDMENTS OF THE INTERNAL REVENUE CODE OF 1986
Section: 501—Short title 203
Part I—Superfund and Its Revenue Sources
Section:
511—Extension of environmental taxes 203
512—Increase in tax on petroleum 204
513—Changes relating to tax on certain chemicals 204
514—Repeal of post-closure tax and trust fund 210
515—Tax on certain imported substances derived from taxable chemicals. 211
516—Environmental tax 213
517—Hazardous substance superfund 215
Part II—Leaking Underground Storage Tank Trust Fund and Its Revenue
Sources
Section:
521—Additional taxes on gasoline, diesel fuel, special motor fuels,
fuels used in aviation, and fuels used in commercial transporta-
tion on inland waters 218
522—Leaking 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 I—HAZARDOUS 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)
-------
(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
-------
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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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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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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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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16
(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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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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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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[(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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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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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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30
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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49
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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53
(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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(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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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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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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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 II—HAZARDOUS 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 A—Imposition 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 38—ENVIRONMENTAL TAXES
"SUBCHAPTER A. Tax on petroleum.
"SuBCHAPTER B. Tax on certain chemicals.
"Subchapter A—Tax 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 B—Tax 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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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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"(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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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 9—Establishment 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 C—Post-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 C—Tax 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 C—Tax 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 III—MISCELLANEOUS 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 IV—POLLUTION 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,
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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 160—ENVIRONMENTAL 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 HI—EMERGENCY 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 A—Emergency 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 B—Reporting Requirements
Sec. 311. Material safety data sheets.
Sec. 312. Emergency and hazardous chemical inventory forms.
Sec. 313. Toxic chemical release forms.
Subtitle C—General 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 A—Emergency 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 B—Reporting 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 C—General 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 IV—RADON 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 V—AMENDMENTS OF THE INTERNAL REVENUE
CODE OF 1986
SEC. 501. SHORT TITLE.
This title may be cited as the "Superfund Revenue Act of 1986".
PART I—SUPERFUND 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 C—Tax 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 VII—ENVIRONMENTAL 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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217
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
-------
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-se—toy-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:
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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 sites—warrant 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
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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).
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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-82-8 |