4927
905R86013
HOUSE OF REPRESENTATIVES %£
SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT
OF 1986
OCTOBER 3, 1986.—Ordered to be printed
Mr. ECKART, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany H.R. 2005]
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the House to the amendment of the
Senate to the bill (H.R. 2005) to amend title II of the Social Securi-
ty Act and related provisions of law to make minor improvements
and necessary technical changes, having met, after full and free
conference, have agreed to recommend and do recommend to their
respective Houses as follows:
That the Senate recede from its disagreement to the amendment
of the House to the amendment of the Senate and agree to the
same with an amendment as follows:
In lieu of the matter proposed to be inserted by the House
amendment insert the following:
SECTION I. SHORT TITLE AND TABLE OF CONTENTS.
This Act may be cited as the "Superfund Amendments and Reau-
thorization Act of 1986".
TABLE OF CONTENTS
Sec. 1. Short title and table of contents.
Sec. 2. CERCLA and Administrator.
Sec. 3. Limitation on contract and borrowing authority.
Sec. 4- Effective date.
TITLE I—PROVISIONS RELATING PRIMARILY TO RESPONSE AND
LIABILITY
Sec. 101. Amendments to definitions.
Sec. 102. Reportable quantities.
Sec. 103. Notices; penalties.
Sec. 104- Response authorities. 11 «• ••_., :„_.. . . n. *.
See. 105. National contingency plan. **.*. environmental PfOteCtlOn
Sec. 106. Reimbursement. Region 5 Lib/an/ IOI 1 O It
Sec. 107. Liability. j j V, . ', ^ ^ Jf«-l^J)
Sec. 108. Financial responsibility. '' "«! J3CKSOn BOUlevard l?th Plh*
Sec. 109. Penalties. ChlMgO. IL
Sec. 110. Health-related authorities. *' ^
62-966 O
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Sec. 111. Uses of fund.
Sec. 112. Claims procedure.
Sec. 113. Litigation, jurisdiction, and venue.
Sec. 114. Relationship to other law.
Sec. 115. Delegation; regulations.
Sec. 116. Schedules.
Sec. 117. Public participation.
Sec. 118. Miscellaneous provisions.
Sec. 119. Response action contractors.
Sec. 120. Federal facilities.
Sec. 121. Cleanup standards.
Sec. 122. Settlements.
Sec. 123. Reimbursement to local governments.
Sec. 124. Methane recovery. ,
Sec. 125. Certain special study u istes. *
Sec. 126. Worker protection stam ards.
Sec. 127. Liability limits for ocean incineration vessels.
TITLE II—MISCELLANEOUS PROVISIONS
Sec. 201. Post-closure liability program study, report to Congress, and suspension of
liability transfers.
Sec. 202. Hazardous materials transportation.
Sec. 203. State procedural reform.
Sec. 204. Conforming amendment to funding provisions.
Sec. 205. Cleanup of petroleum fi im leaking underground storage tanks.
Sec. 206. Citizens suits.
Sec. 207. Indian tribes.
Sec. 208. Insurability study.
Sec. 209. Research, development, and demonstration.
Sec. 210. Pollution liability insurance.
Sec. 211. Department of Defense environmental restoration program.
Sec. 212. Oversight and reporting requirements.
Sec. 213. Love Canal property acquisition.
TITLE III—EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
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 4
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.
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.
TITLE IV—RADON GAS AND INDOOR AIR QUALITY RESEARCH
Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Radon gas and indoor air quality research program.
Sec. 404. Construction of title.
Sec. 405. Authorizations.
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SEC. 2. CERCLA AND ADMINISTRATOR.
As used in this Act—
(1) CERCLA.—The term "CERCLA " means the Comprehen-
sive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seqj.
(2) ADMINISTRATOR.—The term "Administrator" means the
Administrator of the Environmental Protection Agency.
SEC. 3. LIMITATION ON CONTRACT AND BORROWING AUTHORITY.
Any authority provided by this Act, including any amendment
made by this Act, to enter into contracts to obligate the United
States or to incur indebtedness for the repayment of which the
United States is liable shall be effective only to such extent or in
such amounts as are provided in appropriation Acts.
SEC. 4. EFFECTIVE DATE.
Except as otherwise specified in section 121(b) of this Act or in
any other provision of titles I, II, III, and IV of this Act, the amend-
ments made by titles I through IV of this Act shall take effect on
the enactment of this Act.
TITLE I—PROVISIONS RELATING PRIMARILY TO
RESPONSE AND LIABILITY
SEC. 101. AMENDMENTS TO DEFINITIONS.
(a) INDIAN TRIBE.—Paragraph (16) of section 101 of CERCLA (de-
fining "natural resources") is amended by striking "or" the last
time it appears and inserting before the punctuation at the end
thereof the following: ", any Indian tribe, or, if such resources are
subject to a trust restriction on alienation, any member of an Indian
tribe".
(b) STATE OR LOCAL GOVERNMENT LIMITATION.—Paragraph (20) of
section 101 of CERCLA (defining "owner or operator") is amended
as follows:
(1) Add the following new subparagraph at the end thereof:
"(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,
abandonment, or other circumstances in which the govern-
ment involuntarily 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 subject to the provisions of
this Act in the same manner and to the same extent, both
procedurally and substantively, as any nongovernmental
entity, including liability under section 107. ".
(2) Amend clause (Hi) of subparagraph (A) to read as follows:
"(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.".
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(3) Capitalize the first word of subparagraphs (B) and (C) and
substitute a period for the semicolon at the end of subpara-
graphs (A), (B), and (C).
(c) RELEASE.—Paragraph (22) of section 101 of CERCLA (defining
"release") is amended by inserting after "environment" the follow-
ing: "(including the abandonment or discarding of barrels, contain-
ers, and other closed receptacles containing any hazardous sub-
stance or pollutant or contaminant)".
(d) REMEDIAL ACTION.—Paragraph (24) of section 101 of CERCLA
(defining "remedy" and "remedial action') is amended as follows:
(1) Strike "welfare. The term does not include offsite tram-
port" and all that follows down through the semicolon at the
end of such paragraph and insert "welfare; the term includes
offsite transport and offsite storage, treatment, destruction, or
secure disposition of hazardous substances and associated con-
taminated materials.".
(2) Strike "or" before "contaminated materials" and
insert"and associated".
(e) RESPONSE.—Section 101(25) of CERCLA (defining "respond"
and "response") is amended by inserting at the end thereof the fol-
lowing: ', all such terms (including the terms 'removal' and 'reme-
dial action') include enforcement activities related thereto.".
(f) ADDITIONAL DEFINITIONS.—Section 101 of CERCLA is amend-
ed by striking out "; and" at the end of paragraph (31) and substi-
tuting a period, by changing the semicolons at the end of para-
graphs (1) through (29) to periods, by inserting "The term' at the
beginning of paragraphs (1) through (22) and paragraphs (28) and
(31), by inserting The terms" at the beginning of paragraphs (23)
through (27) and paragraphs (29),(30), and (32) by striking out ", the
term' in the material preceding paragraph (1), and by adding the
following new paragraphs at the end thereof:
"(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
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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:
"(V At the time the defendant acquired the facility the
defendant 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 facili-
ty-
"(ii) The defendant is a government entity which ac-
quired the facility by escheat, or through any other invol-
untary 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(b)(3) (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
diminish 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(aXV
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 which is the subject of the action relating
to the facility.
"(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
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the special programs and services provided by the United States
to Indians because of their status as Indians.".
SEC. 102. REPORTABLE QUANTITIES.
Section 102(a) ofCERCLA is amended by adding at the end there-
of the following new sentences: "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.".
SEC. 103. NOTICES; PENALTIES.
Section 103(b) of CERCLA is amended by striking out "para-
graph" in the last sentence and inserting in lieu thereof "subsec-
tion" and by adjusting the left hand margin of the text of such sub-
section following "federally permitted release," the third place it ap-
pears so that there is no indentation of such text.
SEC. 104. RESPONSE AUTHORITIES.
(a) RESPONSE BY POTENTIALLY RESPONSIBLE PARTIES; PUBLIC
HEALTH THREATS.—Section 104(aXU of CERCLA is amended by
striking ", unless the President determines" and all that folh'vs
down through "party." and inserting a period and the following:
"When the President determines that such action will be done prop-
erly 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
conduct the feasibility study in accordance with section 122. No re-
medial 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.".
(b) REMOVAL ACTION.—Section 104(aX2) of CERCLA is amended
to read as follows:
"(2) REMOVAL ACTION.—Any removal action undertaken by the
President under this subsection (or by any other person referred to in
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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.".
(c) LIMITATIONS ON RESPONSE.—Section 104(a) of CERCLA is fur-
ther amended by adding after paragraph (2) the following new para-
graphs:
"(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 de-
terioration of the system through ordinary use.
"(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.".
(d) COORDINATION OF INVESTIGATIONS.—Section 104(b) of
CERCLA is amended by inserting "(1) INFORMATION; STUDIES AND
INVESTIGATIONS.—" after "(b)" and by adding at the end thereof the
following new paragraph:
"(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. ".
(e) INITIAL OBLIGATION OF FUND.—
(1) LIMITATION.—Section 104(cXV of CERCLA is amended by
striking out "$1,000,000" and "six months" and inserting in
lieu thereof "$2,000,000" and "12 months", respectively.
(2) CONTINUED RESPONSE.—Section 104(cXD of CERCLA is
amended by inserting before "obligations" the following: "or (C)
continued response action is otherwise appropriate and consist-
ent with the remedial action to be taken ".
(f) FACILITIES OWNED AND OPERATED BY STATES.—Paragraph ffi
of section 104(c) of CERCLA is amended by striking out "(ii) at
least" and all that follows through the period at the end thereof
and inserting "(ii) 50 percent (or such greater amount as the Presi-
dent may determine appropriate, taking into account the degree of
responsibility of the State or political subdivision 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 direct-
ly or through a contractual relationship or otherwise, at the time of
any disposal of hazardous substances therein. For the purpose of
clause (ii) of this subparagraph, the term 'facility' does not include
navigable waters or the beds underlying those waters.".
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(g) CROSS REFERENCE TO CLEANUP STANDARDS.—Section 104(cX4)
of CERCLA is amended to read as follows:
"(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).".
(h) STATE CREDITS.—Section 104(c) of CERCLA is amended by
adding the following new paragraph after paragraph (4):
"(5) STATE CREDITS.—
"(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 1978 AND 1980.—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
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9
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.".
(i) TREATMENT OF CERTAIN ACTIVITIES AS MAINTENANCE OR RE-
MEDIAL ACTION.—Section 104(c) of CERCLA is amended by adding
the following new paragraphs after paragraph (5):
"(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, nec-
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 (3XCXV
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.".
(j) RECONTRACTING.—Section 104(c) of CERCLA is amended by
adding the following new paragraph after paragraph (7):
"(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.".
(k) SITING.—Section 104(c) of CERCLA is amended by adding the
following new paragraph after paragraph (8):
"(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
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10
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.".
(1) COOPERATIVE AGREEMENTS WITH STATES.—Section 104(dXD of
CERCLA is amended to read as follows:
"(1) 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(a)(8) 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
agreement under this paragraph shall be subject to such terms
and conditions as the President may prescribe. The contract or
cooperative agreement may cover a specific facility or specific
facilities.
"(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.".
(m) INFORMATION GATHERING AND ACCESS AUTHORITIES.—Section
104(e) of CERCLA is amended by redesignating paragraph (2) as
paragraph (7) and aligning the margin of such paragraph with
paragraphs (1) through (6) of such subsection, by inserting "CONFI-
DENTIALITY OF INFORMATION.—" before "(A) Any records', by strik-
ing out paragraph (1), and by striking out (e)" and inserting in lieu
thereof the following:
"(e) INFORMATION GATHERING AND ACCESS.—
"(1) ACTION AUTHORIZED.—Any officer, employee, or represent-
ative 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 (dXD is also authorized to take
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11
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 re-
lease 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.
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 de-
scribed 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
Mutant or contaminant has been or may have been re-
"(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
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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.—// 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).
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 inspec-
tion, the court shall enjoin such interference or direct
compliance 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 subparagraph
(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. '.
(n) BASIS FOR WITHHOLDING INFORMATION.—Paragraph (7) of sec-
tion 104(e) of CERCLA (formerly paragraph (2), as reaesignated by
subsection (I) of this section) is amended by adding the following
new subparagraphs at the end thereof:
' (E) No person required to provide information under this
Act may claim that the information is entitled to protection
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under this paragraph unless such person shows each of the fol-
lowing:
"(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 pro-
tected, is not readily discoverable through reverse engineer-
ing.
"(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
category 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 ex-
plosion) 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. ".
(o) ACQUISITION OF PROPERTY.—
(V IN GENERAL.—Section 104 of CERCLA is amended by
adding the following new subsection at the end thereof:
"(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-
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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. ".
SEC. 105. NATIONAL CONTINGENCY PLAN.
(a} SUBSECTION (a) OF SECTION 105.—Section 105 of CERCLA is
amended as follows:
(1) HEADING.—Insert "(a) REVISION AND REPUBLICATION.—"
after "105.".
(2) HAZARD RANKING SYSTEM.—In paragraph (8XA) insert the
following after "ecosystems,": "the damage to natural resources
which may affect the human food chain and which is associat-
ed with any release or threatened release, the contamination or
potential contamination of the ambient air which is associated
with the release or threatened release,".
(3) NATIONAL PRIORITY LIST.—In paragraph (8KB):
(A) Strike out "at least four hundred of.
(B) Strike out "facilities at least" and insert in lieu
thereof "facilities".
(C) Insert after "in such State." the following: "A State
shall be allowed to designate its highest priority facility
only once.".
(4) CONFORMING AMENDMENT.—In paragraph (9) insert after
"therefor" the following: "and including consideration of mi-
nority firms in accordance with subsection (f)".
(5) STANDARDS AND PROCEDURES FOR INNOVATIVE TREATMENT
TECHNOLOGIES.—Strike out "and" at the end of paragraph (8),
strike out the period at the end of paragraph (9) and insert in
lieu thereof "; and", and insert after paragraph (9) the follow-
ing new paragraph:
"(10) standards and testing procedures by which alternative
or innovative treatment technologies can be determined to be
appropriate for utilization in response actions authorized by
this Act.".
(b) NEW SUBSECTIONS.—Section 105 of CERCLA is amended by
adding the following new subsections at the end thereof:
"(b) REVISION OF PLAN.—Not later than 18 months after the en-
actment 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-
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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
potential 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.
"(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
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or pollutants or contaminants from a site which is listed by the
President as a 'Site Cleaned Up To Date' on the National Priorities
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 para-
graph (2), (3XAXW or (SXAXiii) of section 3001(b) of the
Solid Waste Disposal Act are present in significant quanti-
ties, including any such facility from which there has been
a release 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
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 informa-
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tion which will enable the President to consider the specific fac-
tors required by paragraph (2).".
SEC. 106. REIMBURSEMENT.
Section 106(b) of CERCLA is amended as follows:
(1) Insert "(1)" after "(b)".
(2) Strike out "who willfully" and insert "who, without suffi-
cient cause, willfully".
(3) Add at the end thereof the following new paragraph:
' (2XA) Any person who receives and complies with the terms
of any order issued under subsection (a) may, within 60 days
after completion 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 para-
graph shall accrue on the amounts expended from the date of
expenditure at the same rate as specified for interest on invest-
ments of the Hazardous Substance Superfund established under
subchapter A of chapter 98 of the Internal 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 appropriate United States district court scsking reimburse-
ment from the Fund.
"(C) Except as provided in subparagraph (D), to obtain reim-
bursement, the petitioner shall establish by a preponderance of
the evidence that it is not liable for response costs under section
107(a) and that costs for which it seeks reimbursement are rea-
sonable 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 or-
dered was arbitrary and capricious or was otherwise not in ac-
cordance with law. Reimbursement awarded under this sub-
paragraph shall include all reasonable response costs incurred
by the petitioner pursuant to the portions of the order found to
be arbitrary and capricious or otherwise not in accordance with
law.
"(E) Reimbursement awarded by a court under subparagraph
(C) or (D) may include appropriate costs, fees, and other ex-
penses in accordance with subsections (a) and (d) of section 2412
of title 28 of the United States Code.".
SEC. 107. LIABILITY.
(a) FOREIGN VESSELS.—Section 107(aXD of CERCLA is amended
by striking out "(otherwise subject to the jurisdiction of the United
States)".
(b) RECOVERABLE COSTS AND DAMAGES.—Section 107(a) of
CERCLA is amended by striking out "and" at the end of subpara-
graph (B), striking out the period at the end of subparagraph (C)
and inserting "; and" and inserting at the end thereof the follow-
ing:
"(D} the costs of any health assessment or health effects
study carried out under section 104(i).
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The amounts recoverable in an action under this section shall in-
clude interest on the amounts recoverable under subparagraphs (A)
through CD}. 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 refer-
ence to the date on which interest accruing under this subsection
commences.".
(c) RENDERING CARE OR ADVICE; EMERGENCY RESPONSE AC-
TIONS.—Section 107(d) of CERCLA is amended to read as follows:
"(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. ".
(d) NATURAL RESOURCES.—
(1) DESIGNATION OF FEDERAL AND STATE OFFICIALS.—Section
107(f) of CERCLA is amended by inserting "(1) NATURAL RE-
SOURCES LIABILITY.—" after "(f)" and by adding at the end
thereof the following new paragraphs:
"(2) DESIGNATION OF FEDERAL AND STATE OFFICIALS.—
"(A) FEDERAL.—The President shall designate in the Na-
tional Contingency Plan published under section 105 of this
Act the Federal officials who shall act on behalf of the
public as trustees for natural resources under this Act and
section 311 of the Federal Water Pollution Control Act.
Such officials shall assess damages for injury to, destruc-
tion of, or loss of natural resources for purposes of this Act
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and such section 311 for those resources under their trustee-
ship and may, upon request of and reimbursement from a
State and at the Federal officials' discretion, assess dam-
ages for those natural resources under the State's trustee-
ship.
(B) STATE.—The Governor of each State shall designate
State officials who may 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 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
assessment 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 accord-
ance with the regulations 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. ".
(2) USE OF RECOVERED FUNDS.—Section 107(fXD of CERCLA
(as designated by paragraph (1) of this subsection) is amended
by striking out the third sentence and inserting in lieu thereof
the following: "Sums recovered by the United States Govern-
ment 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 resources.
Sums recovered by a State as trustee under this subsection shall
be available for use only to restore, replace, or acquire the equiv-
alent 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
replace such resources. There shall be no double recovery under
this Act for natural resource damages, including the costs of
damage assessment or restoration, rehabilitation, or acquisition
for the same release and natural resource".
(3) DEADLINE FOR SECTION soi REGULATIONS.—Section
301(cXD of CERCLA is amended by adding the following at the
end thereof: "Notwithstanding the failure of the President to
promulgate the regulations required under this subsection on
the required date, the President shall promulgate such regula-
tions not later than 6 months after the enactment of the Super-
fund Amendments and Reauthorization Act of 1986. ".
(e) FEDERAL AGENCIES.—Section 107(g) of CERCLA is amended to
read as follows:
"(g) FEDERAL AGENCIES.—For provisions relating to Federal agen-
cies, see section 120 of this Act."
(f) FEDERAL LIEN.—Section 107 of CERCLA is amended by
adding at the end thereof the following new subsection:
"(I) 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
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(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'
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
recovered in an action in rem in *he 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 (a)(l) with
respect to a release or threatened release from such vessel shall con-
stitute 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.".
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SEC. 108. FINANCIAL RESPONSIBILITY.
(a} EVIDENCE OF FINANCIAL RESPONSIBILITY.—Section 108(bX2) of
CERCLA is amended by adding the following at the end thereof:
"Financial responsibility may be established by any one, or any com-
bination, 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.".
(b) PHASE-IN PERIOD.—Section 108(b)(3) of CERCLA is amended
by striking out "over a period of not less than three and no more
than six years " and inserting in lieu thereof "as quickly as can rea-
sonably be achieved but in no event more than 4 years ".
(c) DIRECT ACTION; LIABILITY.—Subsections (c) and (d) of section
108 of CERCLA are amended to read as follows:
"(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
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.
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"(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. ".
SEC. 109. PENALTIES.
(a) VIOLATIONS AND CRIMINAL PENALTIES.—
(1) NOTICE.—Section 103(b) of CERCLA is amended as fol-
lows:
(A) Insert after "knowledge of such release" the follow-
ing: "or who submits in such a notification any informa-
tion which he knows to be false or misleading".
(B) Strike out "not more than $10,000 or imprisoned for
not more than one year, or both " and insert in lieu thereof
"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 ".
(2) DESTRUCTION OF RECORDS.—Section 103(dX2) of CERCLA
is amended by striking out "not more than $20,000, or impris-
oned for not more than one year or both." and inserting in lieu
thereof "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 subse-
quent conviction), or both.".
(3) FALSE INFORMATION.—Section 112(bXV of CERCLA is
amended by striking out "up to $5,000 or imprisoned for not
more than one year, or both" and inserting in lieu thereof "in
accordance with the applicable provisions of 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 con-
viction), or both ".
(b) SECTION 1 OS PENALTY.—Section 106(b) of CERCLA is amended
by striking out "$5,000" and inserting in lieu thereof "$25,000".
(c) CIVIL PENALTIES AND AWARDS.—Section 109 of CERCLA is
amended to read as follows:
"SEC. 109. CIVIL PENALTIES AND A WARDS.
"(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)
(relating 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.
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"(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.
"(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—
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"(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(dX3) (relating to
settlement agreements for action under section 104(b)).
"(5) Any failure or refusal referred to in section 122(1) (relat-
ing to violations of administrative orders, consent decrees, or
agreements 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
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 103(d)(2) (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(dX3) (relating to
settlement agreements for action under section 104(b)).
"(5) Any failure or refusal referred to in section 122(1) (relat-
ing to violations of administrative orders, consent decrees, or
agreements 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
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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
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. ".
SEC. 110. HEALTH-RELATED AUTHORITIES.
Section 104(i) of CERCLA is amended as follows:
(1) Insert "(1)" after "(i)" and redesignate paragraphs (1), (2),
(3), (4), and (5) as subparagraphs (A), (B), (C), (D), and (E).
(2) In paragraph (1), strike "and" after "Health Administra-
tion, " and insert after "Social Security Administration," the
following: "the Secretary of Transportation, and appropriate
State and local health officials,".
(3) Insert after "chromosomal testing" in subparagraph (DXas
redesignated by paragraph (1) of this subsection) the following:
"where appropriate ".
(4) Add the following new paragraphs at the end thereof:
"(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 100 hazardous
substances which are most commonly found at facilities on the Na-
tional Priorities List and which, in their sole discretion, they deter-
mine 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
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26
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 A TSDR 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 A TSDR 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 (1)(B) and data developed and collect-
ed on the health effects of hazardous substances under this para-
graph, the Administrator ofATSDR shall prepare toxicological pro-
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 ATSDR'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.
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"(5XA) For each hazardous substance listed pursuant to para-
graph (2), the Administrator of ATSDR (in consultation with the
Administrator 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
development), the Administrator of ATSDR, in cooperation with the
Director of the National Toxicology Program, shall assure the initi-
ation of a program of research designed to determine the health ef-
fects (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,
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, interme-
diate, 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
'(in) such other scientific and technical factors as the Ad-
ministrator of ATSDR may determine are necessary for the ef-
fective 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
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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 costs from responsible parties under this Act.
"(6)(A) 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
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
A TSDR 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 as-
sessments under this subsection, the Administrator of ATSDR, in
consultation 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 as-
sessment 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
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ofATSDR 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-
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 ofATSDR 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
hazardous substances from a facility and whether additional infor-
mation 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 ofATSDR 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 Adminis-
trator ofATSDR shall provide the Administrator of EPA and each
affected 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 ofATSDR
it is appropriate on the basis of the results of a health assessment,
the Administrator ofATSDR shall conduct a pilot study of health
effects for selected groups of exposed individuals in order to deter-
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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.
"(8) In any case in which the results of a health assessment indi-
cate a potential significant risk to human health, the Administrator
of ATSDR 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 of ATSDR 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 epidemio-
logic study conducted under paragraph (7), or an exposure registry
that has been established under paragraph (8), and the Administra-
tor of ATSDR has determined that such exposure is the result of a
release from a facility, the Administrator of ATSDR shall initiate a
health surveillance program for such population. This program
shall include 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
"(B) 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 of ATSDR 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 of ATSDR, of the linkage be-
tween human exposure to individual or combinations of haz-
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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 of ATSDR or the President to determine a signif-
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 as-
sessment 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 Admin-
istrator 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 authori-
ties 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-
related authorities of this Act, the Administrator of ATSDR shall
assemble, develop as necessary, and distribute to the States, and
upon request to medical colleges, physicians, and other health pro-
fessionals, appropriate educational materials (including snort
courses) on the medical surveillance, screening, and methods of di-
agnosis and treatment of injury or disease related to exposure to
hazardous substances (giving priority to those listed in paragraph
(2)), through such means as the Administrator of ATSDR deems ap-
propriate.
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"(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 employee
employed by ATSDR on a part-time career employment basis shall
be counted as a fraction which is determined by dividing 40 hours
into the average number of hours of such employee's regularly
scheduled workweek.
"(17) In accordance with section 120 (relating to Federal facili-
ties), the Administrator of ATSDR shall have the same authorities
under this section with respect to facilities owned or operated by a
department, agency, or instrumentality of the United States as the
Administrator 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.".
SEC. 111. USES OF FUND.
(a) AMOUNT OF FUND.—Section 111 ofCERCLA is amended by in-
serting after "(a)" the following: "!N GENERAL.—For the purposes
specified in this section there is authorized to be appropriated from
the Hazardous Substance Superfund established under subchapter
A of chapter 98 of the Internal Revenue Code of 1986 not more than
$8,500,000,000 for the 5-year period beginning on the date of enact-
ment of the Superfund Amendments and Reauthorization Act of
1986, and such sums shall remain available until expended. The
preceding sentence constitutes a specific authorization for the funds
appropriated under title II of Public Law 99-160 (relating to pay-
ment to the Hazardous Substances Trust Fund).".
(b) USES OF FUNDS UNDER SECTION lll(a).—Section lllfa) of
CERCLA is amended by striking out "; and" at the end of para-
graph (3) and inserting a period, by striking out the semicolons at
the end of paragraphs (1) and (2) and inserting in lieu thereof a
period, by capitalizing the first letter in paragraphs (1) through (4),
and by adding at the end thereof the following:
"(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.".
(c) NATURAL RESOURCE DAMAGE CLAIMS.—
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33
(1) LIMITATION.—Section lll(b) ofCERCLA is amended by in-
serting "(1) IN GENERAL.—" after "(b)" and by adding at the
end thereof the following new paragraph:
"(2) LIMITATION ON PAYMENT OF NATURAL RESOURCE
CLAIMS.—
"(A) GENERAL REQUIREMENTS.—No natural resource
claim may be paid from the Fund unless the President de-
termines that the claimant has exhausted all administra-
tive and judicial remedies 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
'natural resource claim' means any claim for injury to, or
destruction or loss of, natural resources. The term does not
include any claim for the costs of natural resource damage
assessment.".
(2) CONFORMING AMENDMENT.—Section lll(h) of CERCLA is
repealed.
(d) SUBSECTION (c) AMENDMENTS.—
(1) SECTION m(c)).—Section lll(cX4) ofCERCLA is amend-
ed by striking out "the costs of epidemiologic studies" and in-
serting "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 assess-
ments, preparation of toxicologicprofiles".
(2) NEW PARAGRAPHS IN SECTION in(c).— Section lll(c) of
CERCLA is amended by striking out "; and" at the end of para-
graph (5) and inserting a period, by striking out the semicolons
at the end of paragraphs (1) through (4) and inserting in lieu
thereof a period, by capitalizing the first letter in paragraphs
(1), (2), (3), (5), and (6), and by adding at the end thereof the fol-
lowing:
"(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 io4(a)fi).—The costs of
contracts or arrangements entered into under section 104(a)(l) 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 io4(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
5-fiscal-year period beginning October 1, 1986, not more than 0.1
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34
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 Reauthorization 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).".
(e) LIMITATION ON CERTAIN CLAIMS.—Section lll(eX2) of CERCLA
is amended by adding at the end the following: "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 for response to
threats to public health from releases or threatened releases of haz-
ardous substances.".
(f) FUND USE OUTSIDE FEDERAL PROPERTY BOUNDARIES.—Section
lll(eX3) of CERCLA is amended by inserting the following before
the period: "; except that money in the Fund shall be available for
the provision of alternative water supplies (including the reimburse-
ment of costs incurred by a municipality) in any case involving
groundwater contamination outside the boundaries of a federally
owned facility in which the federally owned facility is not the only
potentially responsible party".
(g) INSPECTOR GENERAL.—Section lll(k) of CERCLA is amended
to read as follows:
"(k) INSPECTOR GENERAL.—In each fiscal year, the Inspector Gen-
eral 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.".
(h) NEW SUBSECTIONS.—Section 111 of CERCLA is amended by
adding after subsection (I) the following new subsections:
"(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,
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35
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 sn(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, and 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 3ii(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 311(d).—For each of the fiscal years 1987, 1988,
1989, 1990, and 1991, not more than $5,000,000 of the amounts
available in the Fund may be used for the purposes of section
311(d) (relating to university hazardous substance research cen-
ters).
"(o) NOTIFICATION PROCEDURES FOR LIMITATIONS ON CERTAIN
PAYMENTS.—Not later than 90 days after the enactment of this sub-
section, the President shall develop and implement procedures to
adequately notify, as soon as practicable after a site is included on
the National Priorities List, concerned local and State officials and
other concerned persons of the limitations, set forth in subsection
(aX2) of this section, on the payment of claims for necessary response
costs incurred with respect to such site.".
(i) AUTHORIZATION OF APPROPRIATIONS.—Section 111 of CERCLA
is amended by adding the following subsection after subsection (o):
"(p) GENERAL REVENUE SHARE OF SUPERFUND.—
"(1) IN GENERAL.—The following sums are authorized to be
appropriated, out of any money in the Treasury not otherwise
appropriated, to the Hazardous Substance Superfund:
"(A) For fiscal year 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-
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36
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(bX2) of the Internal Revenue Code of 1986 for the prior
fiscal year.".
SEC. 112. CLAIMS PROCEDURE.
(a) CLAIMS AGAINST THE FUND FOR RESPONSE COSTS.—Section
112(a) of CERCLA is amended to read as follows:
(a) CLAIMS AGAINST THE FUND FOR RESPONSE COSTS.—No claim
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.".
(b) PROCEDURES.—Section 112(b) is amended by striking "(bXV"
and inserting "(bXD PRESCRIBING FORMS AND PROCEDURES.—" and
by striking paragraphs (2), (3), and (4) and inserting the following:
"(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.
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37
"(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. ".
(c) STATUTE OF LIMITATIONS.—Section 112(d) of CERCLA is
amended to read as follows:
"(d) STATUTE OF LIMITATIONS.—
"(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 promulgat-
ed 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.".
(d) DOUBLE RECOVERY PROHIBITED.— Section 112 of CERCLA is
amended by adding the following new subsection at the end thereof:
"(f) DOUBLE RECOVERY PROHIBITED.—Where the President has
paid out of the Fund for any response costs or any costs specified
under section lll(cXl) or (2), no other claim may be paid out of the
Fund for the same costs. ".
SEC. 113. LITIGATION, JURISDICTION, AND VENUE.
(a) NATIONWIDE SERVICE OF PROCESS.—Section 113 of CERCLA is
amended by adding the following new subsection at the end thereof:
"(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. ".
(b) CONTRIBUTION; STATUTE OF LIMITATIONS.—Section 113 of
CERCLA is amended by adding the following new subsections after
subsection (e):
"(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-
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button 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-
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.—
"(V 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 ('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-
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39
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—
"(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
"(B) 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
pursuant 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—
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"(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.".
(c) PRE-ENFORCEMENT REVIEW.—
(1) CONFORMING AMENDMENT.—Section 113(b) of CERCLA is
amended by striking out "subsection" and inserting in lieu
thereof "subsections' and inserting "and (h)" after "(a)".
(2) TIMING OF REVIEW; ADMINISTRATIVE RECORD.—Section 113
of CERCLA is amended by adding at the end thereof the fol-
lowing new subsections:
"(h) TIMING OF REVIEW.—No Federal court shall have jurisdic-
tion under Federal law other than under section 1332 of title 28 of
the United States Code (relating to diversity of citizenship jurisdic-
tion) or under State law which is applicable or relevant and appro-
priate under section 121 (relating to cleanup standards) to review
any challenges 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 by 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
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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 have 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
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 pro-
vide information regarding the plan.
"(Hi) An opportunity for a public meeting in the af-
fected area, in accordance with section
117(a)(2Xrelating 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 se-
lected 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
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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.
"(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.".
SEC. 114. RELATIONSHIP TO OTHER LA W.
(a) USED OIL.—Section 114 (c) of CERCLA is amended to read as
follows:
"(c) RECYCLED OIL.—
"(1) SERVICE STATION DEALERS, ETC.—No person (including
the United States or any State) may recover, under the author-
ity of subsection (aX3) or (aX4) of section 107, from a service sta-
tion dealer for any response costs or damages resulting from a
release 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 (aXD 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.
'W 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—
"(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.
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"(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 Disposal
Act and regulations promulgated pursuant to that Act.
"(4) EFFECTIVE DATE.—The effective date of paragraphs (1)
and (2) of this subsection shall be the effective date of regula-
tions or standards promulgated under section 3014 of the Solid
Waste Disposal Act that include, among other provisions, a re-
quirement to conduct corrective action to respond to any releases
of recycled oil under subtitle C or subtitle I of such Act. ".
(b) DEFINITION OF SERVICE STATION DEALER.—Section 101 of
CERCLA is amended by inserting the following at the end thereof:
"(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
"(ii) who accepts for collection, accumulation, and deliv-
ery to an oil recycling facility, recycled oil that (I) has been
removed 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
(AXii), 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
paragraph.".
SEC. 115. DELEGATION; REGULATIONS.
Section 115 of CERCLA is not amended.
SEC. 116. SCHEDULES.
Title I of CERCLA is amended by adding the following new sec-
tion after section 115:
"SEC. 116. 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
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44
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
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 Reauthoriza-
tion 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 en-
actment of this subsection; and
"(2) 200 additional facilities during the following 24 months
after such 36-month period.".
SEC. 117. PUBLIC PARTICIPATION.
Title I of CERCLA is amended by adding the following new sec
tion after section 116:
"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
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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 writ-
ten and oral comments and an opportunity for a public meeting
at or near the facility at issue regarding the proposed plan and
regarding any proposed findings under section 121(dX4) (relat-
ing 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.
"(b) FINAL PLAN.—Notice of the final remedial action plan adopt-
ed shall 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 written 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 enforcement action under section 106 is taken, or
"(3) if any settlement or consent decree under section 106 or
section 122 is entered into,
and if such action, settlement, or decree differs in any significant
respects from the final plan, the President or the State shall publish
an explanation of the significant differences and the reasons such
changes were made.
"(d) PUBLICATION.-—For the purposes of this section, publication
shall include, at a minimum, 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 public 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 and in accordance with rules promulgated
by the President, the President may make grants available to
any group of individuals which may be affected by a release or
threatened release at any facility which is listed on the Nation-
al Priorities List under the National Contingency Plan. Such
grants may be used to obtain technical assistance in interpret-
ing information with regard to the nature of the hazard, reme-
dial investigation and feasibility study, record of decision, re-
medial design, selection and construction of remedial action,
operation and maintenance, or removal action at such facility.
"(2) AMOUNT.—The amount of any grant under this subsec-
tion may not exceed $50,000 for a single grant recipient. The
President may waive the $50,000 limitation in any case where
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such waiver is necessary to carry out the purposes of this subsec-
tion. Each grant recipient shall be required, as a condition of
the grant, to contribute at 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. MISCELLANEOUS PROVISIONS.
(a) PRIORITY FOR DRINKING WATER SUPPLIES.—Title I of
CERCLA is amended by adding the following new section after sec-
tion 117:
"SEC. 118. HIGH PRIORITY FOR DRINKING WATER SUPPLIES.
"For purposes of taking action under section 104 or 106 and list-
ing facilities on the National Priorities List, the President shall
give a high priority to facilities where the release of hazardous sub-
stances or pollutants or contaminants has resulted in the closing of
drinking water wells or has contaminated a principal drinking
water supply.".
(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 section
104 of CERCLA.
(c) UNCONSOLIDATED 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 facility
over the Unconsolidated Quaternary Aquifer, or the recharge
zone or streamflow source zone of such aquifer, in the Rock-
away 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 vio-
lation of section 301 of such Act.
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(d) STUDY OF SHORTAGES OF SKILLED PERSONNEL.—The Comptrol-
ler General shall study the problem of shortages of skilled personnel
in the Environmental Protection Agency to carry out response ac-
tions 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,
(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 posi-
tions 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 person-
nel, 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 Nor APPLICABLE TO CERTAIN TRANS-
FERS.—No State or local requirement shall apply to the transfer and
disposal of any hazardous substance or pollutant or contaminant
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 conditions
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, Califor-
nia.
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 effects;
(B) an estimate of the total number of children exposed to en-
vironmental sources of lead arrayed according to source or
source types;
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48
(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 exposures
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 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 relo-
cation 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 in-
clude the costs of permanent relocation of residents where it is deter-
mined that such permanent relocation is cost effective or may be
necessary to protect health or welfare. In the case of a business lo-
cated 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 permanent
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 reloca-
tion, such terms may also include the provision of assistance identi-
cal to that authorized by sections 407, 408, and 409 of the Disaster
Relief Act of 1974; except that the costs of such assistance shall be
paid from the Trust Fund established under amendments made to
the Internal Revenue Code of 1954 by this Act. Section 104(cXD of
CERCLA shall not apply to obligations from the Fund for perma-
nent relocation under this paragraph.
(i) LIMITED WAIVERS IN STATE OF ILLINOIS.—
(1) MOBILE INCINERATORS.—In the case of remedial actions
specifically involving mobile incinerator units in the State of Il-
linois, if such remedial actions are undertaken by the State
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under the authority of a State Superfund law or equivalent au-
thority, the State may, with the approval of the Administrator,
waive any permit requirement under subtitle C of the Solid
Waste Disposal Act which would be otherwise applicable to
such action to the extent that the following conditions are met:
(A} No TRANSFER.—The incinerator does not involve the
transfer of a hazardous substance or pollutant or contami-
nant from the facility at which the release or threatened re-
lease 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.
(Hi) 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 partici-
pation 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 potentially reg-
ulated activity, including the use of the mobile incineration
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 dem-
onstrates, to the satisfaction of the Administrator, that the op-
eration of mobile incinerators in the State has sufficiently pro-
tected 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 limes 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
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(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.—
(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 possi-
ble—
(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 daughters
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 tech-
nologies of reducing or eliminating radon gas and radon
daughters where it poses a threat to human health. The
Administrator shall take into consideration any demonstra-
tion program underway in the Reading Prong of Pennsylva-
nia, 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 considers appropriate.
(B) ANNUAL REPORTS.—The Administrator shall submit
annual reports not later than February 1 of each year (be-
ginning February 1, 198?) 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 OF SECTION.—Nothing in this subsection
shall be construed to authorize the Administrator to carry out
any regulatory program or any activity other than research, de-
velopment, 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.
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(I) 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 research
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 dem-
onstration of alternative or innovative technologies which may
be utilized in response actions or in normal handling of hazard-
ous 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 univer-
sity 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 con-
tributions, and enter into agreements with universities located
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 car-
rying out this subsection for fiscal years beginning after Septem-
ber 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 Environmen-
tal 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 in-
novative 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 testing
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;
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(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.
(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 nec-
essary technical support and which is involved in environmen-
tal activities related to such hazardous substance related emer-
gencies.
(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, DE-
VELOPMENT, AND DEMONSTRATION CENTER.—
(1) ESTABLISHMENT.—The Administrator shall establish a
hazardous substance research, development, and demonstration
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 which entity shall agree to pro-
vide the basic technical and management personnel. Such
nonprofit private entity shall also agree to provide at least
two permanent research facilities, one of which shall be lo-
cated 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 pro-
viding for research, evaluation, testing, development, and
demonstration into alternative or innovative technologies to
characterize and assess the nature and extent of hazardous
waste (including radioactive mixed waste) contamination at
the Hanford site, in the State of Washington.
(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,
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1986, not more than $5,000,000. All sums appropriated
under this subparagraph shall be provided to the Adminis-
trator by the Secretary of Energy, pursuant to the interagen-
cy agreement entered into under subparagraph (A), for the
purpose of the Administrator entering into contracts and
cooperative agreements with, and making grants to, the
Center in order to carry out the research, evaluation, test-
ing, development, and demonstration described in para-
graph (1).
(5) AUTHORIZATION OF APPROPRIATIONS.—There is authorized
to be appropriated to the Administrator for purposes of carrying
out this subsection (other than paragraph (4)) for fiscal years be-
ginning 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 noncoal
mining operations, shall be deemed removed from the list of sites
recommended for inclusion on the National Priorities List, unless
the President determines upon site specific data not used in the pro-
posed listing of such facility, that the facility meets requirements of
the Hazard Ranking System or any revised Hazard Ranking
System.
SEC. 119. RESPONSE ACTION CONTRACTORS.
Title I of CERCLA is amended by adding the following new sec-
tion after section 118:
"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
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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 (a)(4) 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
caused by conduct of the contractor which was grossly negligent
or which constituted intentional misconduct.
"(2) APPLICABILITY.—This subsection shall apply only with
respect to a response action carried out under written agreement
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 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 sub-
ject to section 1301 or 1341 of title 31 of the United States Code
or section 3732 of the Revised Statutes (41 U.S.C. 11) or to sec-
tion 3 of the Superfund Amendments and Reauthorization Act
of 1986. For purposes of section 111, amounts expended pursu-
ant 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
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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) LIMITATIONS.—
"(A) LIABILITY COVERED.—Indemnification under this
subsection shall apply only to response action contractor li-
ability which results from a release of any hazardous sub-
stance or pollutant or contaminant if such release arises
out of response action activities.
"(B) DEDUCTIBLES AND LIMITS.—An indemnification
agreement under this subsection shall include deductibles
and shall place limits on the amount of indemnification to
be made available.
"(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-
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cover any amount from the potentially responsible
party or under the indemnification agreement.
"(D) RCRA FACILITIES.—No owner or operator of a facili-
ty 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 (eX2)(B) 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
expended 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.
"(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 agree-
ments 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
subsection (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
release 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
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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 subcontrac-
tors for program management, construction management, architec-
tural and engineering, surveying and mapping, and related services
shall be selected in accordance with title IX of the Federal Property
and Administrative Services Act of 1949. The Federal selection pro-
cedures shall apply to appropriate contracts negotiated by all Feder-
al governmental agencies involved in carrying out this Act. Such
procedures shall be followed by response action contractors and sub-
contractors. ".
SEC. 120. FEDERAL FACILITIES.
(a) IN GENERAL.—Title I of CERCLA is amended by adding the
following new section after section 119:
"SEC. 120. FEDERAL FACILITIES.
"(a) APPLICATION OF ACT TO FEDERAL GOVERNMENT.—
"(1) IN GENERAL.—Each department, agency, and instrumen-
tality 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-
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lotions, 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 applica-
ble 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 haz-
ardous waste facilities required to be submitted under section 3018
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 re-
garding 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
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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) RI/FS.—Not later than 6 months after the inclusion of
any facility on the National Priorities List, the department,
agency, or instrumentality which owns or operates such facility
shall, in consultation with the Administrator and appropriate
State authorities, commence a remedial investigation and feasi-
bility study for such facility. In the case of any facility which is
listed on such list before the date of the enactment of this sec-
tion, the department, agency, or instrumentality which owns or
operates such facility shall, in consultation with the Adminis-
trator and appropriate State authorities, commence such an in-
vestigation and study for such facility within one year after
such date of enactment. The Administrator and appropriate
State authorities 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.
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"(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
unjder this subsection shall include, but shall not be limited to,
each of the following:
"(A) A review of alternative remedial actions and selec-
tion of a remedial action by the head of the relevant de-
partment, agency, or instrumentality and the Administra-
tor or, if unable to reach agreement on selection of a reme-
dial 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 instru-
mentality responsible for compliance with this section shall fur-
nish an annual report to the Congress concerning its progress in
implementing the requirements of this section. Such reports
shall include, but shall not be limited to, each of the following
items:
"(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 agree-
ment 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-
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sponse action. Such reports shall also be submitted to the affect-
ed States.
"(6) SETTLEMENTS WITH OTHER PARTIES.—// the Administra-
tor, 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 and 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.
"(g) 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.
"(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 sub-
section shall be provided in such form and manner as may be
provided 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
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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 nec-
essary after the date of such transfer shall be conduct-
ed 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 depart-
ment, agency, or instrumentality of the United States to comply
with any 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
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action with respect to which an exemption has been issued
under this paragraph. No exemption shall 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 HI of the Superfund Amendments and Reauthoriza-
tion Act of 1986.".
(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.
(a) AMENDMENT OF CERCLA.—Title I of CERCLA is amended by
adding the following new section after section 120:
"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
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
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various alternatives. In assessing alternative remedial actions, the
President shall, at a minimum, take into account:
"(A) the long-term uncertainties associated with land dispos-
al;
"(B) the goals, objectives, and requirements of the Solid Waste
Disposal Act;
"(C) the persistence, toxicity, mobility, and propensity to
bioaccumulate of such hazardous substances and their constitu-
ents;
"(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
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—
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"(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
"(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
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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 in-
cremental 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
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 the hazardous substance or pollutant
or contaminant is transferred is not releasing any hazardous
waste, or constituent thereof, into the groundwater or surface
water or soil.
"(B) All such releases from other units at the facility are
being controlled by a corrective action program approved by the
Administrator under subtitle C of the Solid Waste Disposal Act.
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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 reme-
dial 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
performance 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-
ments 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.
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"(f) STATE INVOLVEMENT.—(1) 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 reme-
dial 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 re-
sponsible parties regarding the scope of any response action at a
facility in the State and an opportunity to participate in such
negotiations and, subject to paragraph (2), be a party to any set-
tlement.
"(G) Notice to the State and an opportunity to comment on
the President's proposed plan for remedial action as well as on
alternative 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
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.
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"(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.
"(3)(A) This paragraph shall apply to remedial actions at facili-
ties 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 evi-
dence, the remedial action shall be modified to conform to such
standard, requirement, criteria, or limitation.
"(Hi) If the State fails to establish that the President's find-
ing was not supported by substantial evidence and if the State
pays, within 60 days of judgment, the additional costs attribut-
able to meeting such standard, requirement, criteria, or limita-
tion, the remedial action shall be selected to meet such stand-
ard, requirement, 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-
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ed to or not inconsistent with such standard, requirement, criteria,
or limitation.".
(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 por-
tion of the remedial action covered by the ROD or consent
decree complies to the maximum extent practicable with section,
121 ofCERCLA.
Any ROD signed before enactment of this Act and reopened after en-
actment of this Act to modify or supplement the selection of remedy
shall be subject to the requirements of section 121 of CERCLA.
SEC. 122. SETTLEMENTS.
(a) NEW SECTION.—Title I of CERCLA is amended by adding the
following new section after section 121:
"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).
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"(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 complet-
ed 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
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 (e)(2)(E) 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-
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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
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
agreement with potentially responsible parties for taking re-
sponse 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
concerning each of the following:
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"(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 facili-
ty, to the extent such information is available.
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 subsec-
tion, the President may not commence action under section
104(a) or take any action under section 106 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(b) shall have 60 days from the date of receipt of such
.lotice to make a proposal to the President for undertaking
or financing the action under section 104(b).
'(C) ADDITIONAL PARTIES.—// an additional potentially
responsible 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.—
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"(A) IN GENERAL.—The President shall develop guide-
lines for preparing nonbinding preliminary allocations of
responsibility. In developing these guidelines the President
may include such factors as the President considers rele-
vant, such as: volume, toxicity, mobility, strength of evi-
dence, ability to pay, litigative risks, public interest consid-
erations, precedential value, and inequities and aggravat-
ing factors. When it would expedite settlements under this
section and remedial action, the President may, after com-
pletion of the remedial investigation and feasibility study,
provide a nonbinding preliminary allocation of responsibil-
ity which allocates percentages of the total cost of response
among potentially responsible parties at the facility.
"(B) COLLECTION OF INFORMATION.—To collect informa-
tion 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 shall 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 been 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
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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
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 NOT 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 re-
lease 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), (f), (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 sub-
stances so as to destroy, eliminate, or permanently immobi-
lize 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 environ-
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ment, no byproduct of the treatment or destruction process
presents any significant 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 environment,
the President shall provide such person with a covenant not to
sue with respect to future liability to the United States under
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 covenant not to sue under paragraph (2) or under subsection
(g) (relating to de minimis settlements), a covenant not to sue a
person concerning future liability to the United States shall in-
clude 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
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where such liability arises out of conditions which are un-
known at the time the President certifies under paragraph (3)
that remedial action has been completed at the facility con-
cerned.
"(B) In extraordinary circumstances, the President may deter-
mine, after assessment of relevant factors such as those referred
to in paragraph (4) and 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
(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 MINI MIS SETTLEMENTS.—
"(1) EXPEDITED FINAL SETTLEMENT.—Whenever practicable
and in the public interest, as determined by the President, the
President 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 con-
cerned 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-
spons Me 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
covenant 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).
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"(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
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 shall 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
PARTIES.—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
regulations 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.
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"(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 ad-
dressed 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 30 days
before any settlement (including any settlement arrived at
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 threat-
ened release of any hazardous substance that is the subject of
negotiations under this section may have resulted in damages to
natural 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.
"(1) 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-
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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.".
(b) CONTRIBUTION.—Section 308 of CERCLA is amended by
adding the following at the end thereof: "If an administrative set-
tlement under section 122 has the effect of limiting 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 amendment of the Consti-
tution of the United States, such person shall not be entitled, under
other laws of the United States, to recover compensation 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. 123. REIMBURSEMENT TO LOCAL GOVERNMENTS.
(a) Title I of CERCLA is amended by adding the following after
section 122:
"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 (b)(l) 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
section shall be in accordance with rules promulgated by the Ad-
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ministrator within one year after the enactment of the Superfund
Amendments and Reauthorization Act of 1986.".
SEC. 124. METHANE RECOVERY.
(a) IN GENERAL.—Title I of CERCLA is amended by adding the
following new section after section 123:
"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
considered 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
considered to have arranged for disposal or treatment of any
hazardous substance at such facility pursuant to section 107 of
this Act.
"(3) The owner or operator of such equipment shall not be
subject to any action under section 106 with respect to such fa-
cility.
"(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 cov-
ered by paragraph (1), (2), (3), or (4) of subsection (a) of section
107 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. ".
(b) REGULATION UNDER THE SOLID WASTE DISPOSAL ACT.—Unless
the Administrator of the Environmental Protection Agency promul-
gates 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 mean-
ing of that subtitle. If the aqueous or hydrocarbon phase of the con-
densate 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 Disposal Act, the pre-
ceding sentence shall not apply and such condensate phase or other
waste material shall be deemed a hazardous waste under that sub-
title, and shall be regulated accordingly.
SEC. 125. CERTAIN SPECIAL STUDY WASTES.
Title I of CERCLA is amended by adding the following new sec-
tion after section 124:
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"SEC. 125. SECTION 3001(b)(3)(A)(i) 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 3001(bX3XAXi) 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 hazard-
ous 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 3QQl(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. 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 en-
gaged 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 initial
and routine training of workers before such workers are permit-
ted 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.
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(5) ENGINEERING CONTROLS.—Requirements for engineering
controls concerning the use of equipment and exposure of work-
ers 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 pro-
cedures.
(7) INFORMATIONAL PROGRAM.—A program to inform workers
engaged in hazardous waste operations of the nature and degree
of toxic exposure likely as a result of such hazardous waste op-
erations.
(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 de-
termines that the evidence in the public record considered as a
whole does not support inclusion of any such provision.
(d) SPECIFIC TRAINING STANDARDS.—
(1) OFFSITE 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 substances re-
ceive a minimum of 40 hours of initial instruction off the site,
and a minimum of three days of actual field experience under
the direct supervision of a trained, experienced supervisor, at
the time of assignment. The requirements of the preceding sen-
tence shall not apply to any general site worker who has re-
ceived the equivalent of such training. Workers who may be ex-
posed 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 workers,
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onsite managers, and supervisors have received the specified
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.
(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 emergen-
cy response workers than the protections contained in the Environ-
mental Protection Agency Manual (1981) "Health and Safety Re-
quirements for Employees Engaged in Field Activities " and existing
standards under the Occupational Safety and Health Act of 1970
found in subpart C of part 1926 of title 29 of the Code of Federal
Regulations. Such interim final regulations shall take effect upon
issuance and shall apply until final regulations become effective
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 identi-
cal to those promulgated by the Secretary of Labor under subsection
(a). Standards promulgated under this subsection shall apply to em-
ployees of State and local governments in each State which does not
have in effect an approved State plan under section 18 of the Occu-
pational Safety and Health Act of 1970 providing for standards for
the health and safety protection of employees engaged 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 response
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 emer-
gency response operations.
SEC. 127. LIABILITY LIMITS FOR OCEAN INCINERATION VESSELS.
(a) DEFINITION OF INCINERATION VESSEL.—Section 101 of
CERCLA is amended by adding the following after paragraph (37):
"(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 board. ".
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(b) LIABILITY.—Section 107 ofCERCLA is amended as follows:
(1) Subsection (aX3) is amended by inserting "or incineration
vessel"after "facility".
(2) Subsection (aX4) is amended by inserting ", incineration
vessels " after "facilities ".
(3) Subparagraph (A) of subsection (cXV is amended by insert-
ing ", other than an incineration vessel,"after "vessel".
(4) Subparagraph (B) of subsection (cXU is amended by insert-
ing "other than an incineration vessel," after "other vessel,".
(5) Subparagraph (D) of subsection (cXD is amended by insert-
ing "any incineration vessel or" before "any facility".
(c) FINANCIAL RESPONSIBILITY.—Section 108(a) of CERCLA is
amended as follows:
(1) Paragraph (1) is amended by inserting "to cover the liabil-
ity prescribed under paragraph (1) of section 107(a) of this Act"
after "whichever is greater)";
(2) Add a new paragraph to read as follows:
"(4) In addition to the financial responsibility provisions of
paragraph (1) of this subsection, the President shall require ad-
ditional evidence of financial responsibility for incineration ves-
sels 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 in-
cineration, and any other factors deemed relevant.".
(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:
"(g) SAVINGS CLAUSE.—Nothing in this Act shall restrict, affect or
modify the rights of any person (1) to seek damages or enforcement
of any standard or limitation under State law, including State
common law, or (2) to seek damages under other Federal law, in-
cluding maritime tort law, resulting from noncompliance with any
requirement of this Act or any permit under this Act.".
(e) MARITIME TORT.—Section 107(h) of CERCLA is amended by
inserting ", under maritime tort law, " after "with this section" and
by inserting before the period "or the absence of any physical
damage to the proprietary interest of the claimant".
TITLE II—MISCELLANEOUS PROVISIONS
SEC. 201. POST-CLOSURE LIABILITY PROGRAM STUDY, REPORT TO CON-
GRESS, AND SUSPENSION OF LIABILITY TRANSFERS.
Subsection (k) of section 107 ofCERCLA is amended by adding at
the end the following new paragraphs:
"(5) SUSPENSION OF LIABILITY TRANSFER.—Notwithstanding
paragraphs (1), (2), (3), and (4) of this subsection and subsection
(j) of section 111 of this Act, no liability shall be transferred to
or assumed by the Post-Closure Liability Trust Fund estab-
lished by section 232 of this Act prior to completion of the study
required under paragraph (6) of this subsection, transmission of
a report of such study to both Houses of Congress, and authori-
zation of such a transfer or assumption by Act of Congress fol-
lowing receipt of such study and report.
"(6) STUDY OF OPTIONS FOR POST-CLOSURE PROGRAM.—
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"(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, stor-
age, and disposal sites after their closure which comple-
ments the policies set forth in the Hazardous and Solid
Waste Amendments of 1984 and assures the protection of
human health and the environment.
"(B) PROGRAM ELEMENTS.—The program referred to in
subparagraph (A) shall be designed to assure each of the
following:
"(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 envi-
ronment.
"(ii) Members of the public will have reasonable con-
fidence 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
operators of hazardous waste disposal facilities will be
able to manage their potential future liabilities and to
attract the investment capital necessary to build, oper-
ate, and close such facilities in a manner which as-
sures protection of human health and the environment.
"(C) ASSESSMENTS.—The study under this paragraph
shall include assessments of treatment, storage, and dispos-
al facilities which have been or are likely to be issued a
permit under section 3005 of the Solid Waste Disposal Act
and the likelihood of future insolvency on the part of
owners and operators of such facilities. Separate assess-
ments shall be made for different classes of facilities and
for different classes of land disposal facilities and shall in-
clude 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 fa-
cilities, 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 Administrator, the Secretary of Commerce, the Secre-
tary 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 mecha-
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nisms to complement the policies set forth in the Hazard-
ous and Solid Waste Amendments of 1984 to serve the pur-
poses set forth in subparagraph (B) and to assure that the
current and future costs associated with hazardous waste
facilities, including post-closure costs, will be adequately fi-
nanced 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
responsibility requirements under subtitles C and I of
the Solid Waste Disposal Act;
"(W voluntary risk pooling by owners and operators;
"(Hi) legislation to require risk pooling by owners
and operators;
"(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, including 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 insur-
ance, whether provided by the private sector or provid-
ed or assisted 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
consider options for funding any program under this sec-
tion and shall, to the extent necessary, make recommenda-
tions to the appropriate committees of Congress for addi-
tional authority to implement such program. .
SEC. 202. HAZARDOUS MATERIALS TRANSPORTATION.
(a) REGULATION REQUIREMENT.—Section 306(a) of CERCLA is
amended (1) by striking out "within ninety days after the date of
enactment of this Act" and inserting in lieu thereof "within 30 days
after the enactment of the Superfund Amendments and Reauthor-
ization Act of 1986" and (2) by inserting "and regulated" before "as
a hazardous material".
(b) CONFORMING AMENDMENT.—Section 306(b) of CERCLA is
amended by inserting "and regulation" after "prior to the effective
date of the listing".
SEC. 203. STATE PROCEDURAL REFORM.
(a) IN GENERAL.—Title III of CERCLA is amended by adding the
following new section at the end thereof:
"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 by exposure to any haz-
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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 107.—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 re-
ferred to in subsection (a)(l) were caused or contributed to
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.".
(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. 204. CONFORMING AMENDMENT TO FUNDING PROVISIONS.
(a) HAZARDOUS SUBSTANCES SUPERFUND.—Section 221(a) of
CERCLA is amended by striking out "Hazardous Substance Re-
sponse Trust Fund" and inserting in lieu thereof "Hazardous Sub-
stances Superfund".
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(b) CROSS REFERENCE TO FUNDING PROVISIONS.—Section 221(c) of
CERCLA is amended to read as follows:
"(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. 205. CLEANUP OF PETROLEUM FROM LEAKING UNDERGROUND STOR-
AGE TANKS.
(a) DEFINITION OF PETROLEUM.—Section 9001(2)(B) 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 condi-
tions of temperature and pressure (60 degrees Fahrenheit and
14-7pounds 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 paragraph
(4), striking the period at the end of paragraph (5) and substi-
tuting "; and" and by adding the following new paragraph 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 operating 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(dXV of such Act (as redes-
ignated by paragraph (2) of this subsection) is amended by strik-
ing 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
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of coverage for particular classes or categories of underground
storage tanks containing petroleum which shall satisfy such
regulations and which shall not be less than $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 mar-
keting and which are not used to handle substantial quantities
of petroleum.
'(C) In establishing classes and categories for purposes of this
paragraph, the Administrator may consider the following fac-
tors:
"(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.
"(Hi) 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 perti-
nent.
"(D) The Administrator may suspend enforcement of the fi-
nancial responsibility requirements for a particular class or cat-
egory 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 subsec-
tion 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 judg-
ment 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 pay-
ment of costs incurred for corrective action under subparagraph
(B), enforcement action under subparagraph (A), and cost recov-
ery under paragraph (6) of this subsection. Subject to the priori-
ty requirements of paragraph (3), the Administrator (or the
State) shall give priority in undertaking such actions under
subparagraph (B) to cases where the Administrator (or the
State} cannot identify a solvent owner or operato, 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 Administra-
tor (or the State) may undertake corrective action with respect
to any release of petroleum into the environment from an under-
ground 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 following
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
(Hi) 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 pursuant
to the provisions of subsections (c) and (dX5) of this section
and, considering the class or category of underground stor-
age tank from which the release occurred, expenditures
from the Leaking Underground Storage Tank Trust Fund
are necessary to assure an effective corrective action.
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"(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 un-
dertaking corrective actions under this subsection, and in issu-
ing 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 paragraph
(1) or to carry out regulations issued under subsection (cX4)- A
State acting pursuant to paragraph (7) of this subsection is au-
thorized to carry out subparagraph (A) of paragraph (1) only
until the States program is approved by the Administrator
under section 9004 of this subtitle. Such orders shall be issued
and enforced in the same manner and subject to the same re-
quirements 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 paragraph (10)
of this subsection or provide for such an assessment in a cooper-
ative 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), relating to cost
recovery.
"(6) RECOVERY OF 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 under-
ground 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 construed
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.—
"(i) No TRANSFERS OF LIABILITY.—No indemnifica-
tion, hold harmless, or similar agreement or convey-
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ance shall be effective to transfer from the owner or op-
erator 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 liabil-
ity 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 operator
and located on a single parcel of property (or on any contig-
uous 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 agreement.
"(B) COST SHARE.—Following the effective date of the reg-
ulations under subsection (c) of this section, the State shall
pay 10 per centum of the cost of corrective actions undertak-
en either by the Administrator or by the State under a coop-
erative agreement, except that the Administrator may take
corrective action at a facility where immediate action is
necessary to respond to an imminent and substantial en-
dangerment to human health or the environment 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 nec-
essary.
"(9) DEFINITION OF OWNER.—As used in this subsection, the
term 'owner' does not include any person who, without partici-
pating in the management of an underground storage tank and
otherwise not engaged in petroleum production, refining, and
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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 assessment
to determine the extent of exposure of, or potential for exposure
of, individuals to petroleum from a release from an under-
ground 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 assess-
ment shall not delay corrective action to abate immediate haz-
ards 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 facility
as a result of subsection (dX5XB) of this section) for whatever
reason the Administrator shall expend no monies from the
Leaking Underground Storage Tank Trust Fund to clean up re-
leases at such facility pursuant to the provisions of paragraph
(1) or (2) of this subsection. At such facilities the Administrator
shall use the authorities provided in subparagraph (A) of para-
graph (1) and paragraph (4) of this subsection and section 9006
of this subtitle to order corrective action to clean up such re-
leases. States acting pursuant to paragraph (7) of this subsec-
tion shall use the authorities provided in subparagraph (A) of
paragraph (1) and paragraph (4) of this subsection to order cor-
rective action to clean up such releases. Notwithstanding the
provisions of this paragraph, the Administrator may use monies
from the fund to take the corrective actions authorized by para-
graph (5) of this subsection to protect human health at such fa-
cilities and shall seek full recovery of the costs of all such ac-
tions pursuant to the provisions of paragraph (6XA) of this sub-
section and without consideration of the factors in paragraph
(6)(B) of this subsection. Nothing in this paragraph shall pre-
vent the Administrator (or a State pursuant to paragraph (7) of
this subsection) from taking corrective action at a facility where
there is no solvent owner or operator or where immediate action
is necessary to respond to an imminent and substantial endan-
germent of human health or the environment.".
(e) FINANCIAL RESPONSIBILITY IN STATE PROGRAMS.—
(1) Section 9004(cXV of the Solid Waste Disposal Act is
amended by striking out 'financed by fees on tank owners and
operators and".
(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 satis-
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factory to the Administrator.". Such section is further amended
by adding after the word "terms " in the second sentence the fol-
lowing: "including the amount of coverage required for various
classes and categories of underground storage 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 sec-
tion is further amended by inserting the words "taking correc-
tive action," after the word "study," in the second sentence
thereof.
(2) Section 9005(a) of the Solid Waste Disposal Act is amend-
ed by striking the word "and" at the end of paragraph (2),
striking out the period at the end of paragraph (3) and inserting
"; and", and adding the following new paragraph at the end
thereof—
"(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 enforce
any regulation, requirement, or standard of performance respecting
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 respect 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 insurance,
and contamination insurance for owners and operators of petro-
leum storage and distribution facilities. The study shall assess
the current and projected extent to which private insurance can
contribute to the financial responsibility of owners and opera-
tors of underground storage tanks and the ability of owners and
operators of underground storage tanks to maintain financial
responsibility through other methods. The study shall consider
the experience of owners and operators of marine vessels in get-
ting insurance for their liabilities under the Federal Water Pol-
lution Control Act and the operation of the Water Quality In-
surance Syndicate.
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(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 include
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 trans-
ported, disposes of, or otherwise handles any used oil not identi-
fied 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 re-
quirement 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 subsec
tion 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. 206. CITIZENS SUITS.
Title III of CERCLA is amended by adding the following new sec-
tion after section 309:
"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,
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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)(D.—Any action under
subsection (aXD shall be brought in the district court for the
district in which the alleged violation occurred.
"(2) ACTIONS UNDER SUBSECTION (a)(2).—Any action brought
under subsection (aX2) may be brought in the United States Dis-
trict Court for the District of Columbia.
"(c) RELIEF.—The district court shall have jurisdiction in actions
brought under subsection (aXV to enforce the standard, regulation,
condition, requirement, or order concerned (including any provision
of an agreement under section 120), to order such action as may be
necessary to correct the violation, and to impose any civil penalty
provided for the violation. The district court shall have jurisdiction
in actions brought under subsection (a)(2) to order the President or
other officer to perform the act or duty concerned.
"(d) RULES APPLICABLE TO SUBSECTION (a)(l) ACTIONS.—
"(1) NOTICE.—No action may be commenced under subsection
(aXD of this section before 60 days after the plaintiff has given
notice of the violation to each of the following:
"(A) The President.
"(B} The State in which the alleged violation occurs.
(C) Any alleged violator of the standard, regulation,
condition, requirement, or order concerned (including any
provision 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 (aX2) 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.
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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 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. 207. INDIAN TRIBES.
(a} DEFINITION.—For definition of Indian tribe, see the amend-
ments made by section 101 of this Act.
(b) FUTURE MAINTENANCE AND COST SHARING.—Section 10McX3)
of CERCLA is amended by adding at the end thereof the following:
"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 Indians, 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 assur-
ances 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.".
(c) LIABILITY.—Section 107 of CERCLA is amended as follows:
(1) In subsection (a) by inserting "or an Indian tribe" after
"State";
(2) In subsection (f):
(A) Insert after "State" the third time that word appears
the following: "and to any Indian tribe for natural re-
sources belonging to, managed by, controlled by, or apper-
taining to such tribe, or held in trust for the benefit of such
tribe, or belonging to a member of such tribe if such re-
sources are subject to a trust restriction on alienation".
(B) Insert "or Indian tribe" after "State" the fourth time
that word appears.
(C) Add before the period at the end of the first sentence
the following: ", so long as, in the case of damages to an
Indian tribe occurring pursuant to a Federal permit or li-
cense, the issuance of that permit or license was not incon-
sistent with the fiduciary duty of the United States with re-
spect to such Indian tribe ".
(D) Insert "or the Indian tribe" after "State government".
(3) In subsection (i) insert "or Indian tribe" after "State" the
first time it appears.
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(4) In subsection (j) insert "or Indian tribe" after "State" the
first time it appears.
(d) NATURAL RESOURCES CLAIMS, DELEGATION, ETC.—Section 111
of CERCLA is amended as follows:
(1) In subsection (b), insert before the period at the end thereof
the following: ", or by any Indian tribe or by the United States
acting on behalf of any Indian tribe for natural resources be-
longing 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";
(2) In subsection (c)(2) insert "or Indian tribe" after "State".
(3) In subsection (f) insert "or Indian tribe" after "State"; and
(4) In subsection (i) insert after "State," the following: "and
by the governing body of any Indian tribe having sustained
damage to natural resources belonging to, managed by, con-
trolled 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,".
(e) TREATMENT OF TRIBES GENERALLY.—Title I of CERCLA is
amended by adding the following new section after section 125:
"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
of equivalent value is available and satisfactory to the tribe. Any
lands 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 consulta-
tion 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 par-
ticipation in the administration of such programs can be maxi-
mized. Such report shall be submitted to Congress along with the
President's budget request for fiscal year 1988.
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"(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.".
SEC. 208. INSURABILITY STUDY.
Section 301 of CERCLA is amended by adding the following new
subsection at the end thereof:
"(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 envi-
ronment.
"(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 subpara-
graphs (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
include, 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
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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
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 immedi-
ately preceding 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 finan-
cial responsibility requirements imposed pursuant to this
Act on the cost of, and incentives for, developing and dem-
onstrating alternative and innovative treatment technol-
ogies, 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.".
SEC. 209. RESEARCH, DEVELOPMENT, AND DEMONSTRATION.
(a) PURPOSE.—The purposes of this section are as follows:
(1) To establish a comprehensive and coordinated Federal pro-
gram of research, development, demonstration, and training for
the purpose of promoting the development of alternative and in-
novative treatment technologies that can be used in response ac-
tions under the CERCLA program, to provide incentives for the
development and use of such technologies, and to improve the
scientific capability to assess, detect and evaluate the effects on
and risks to human health from hazardous substances.
(2) To establish a basic university research and education pro-
gram within the Department of Health and Human Services
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 Pro-
tection 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 supple-
ments or coordinates with, but does not compete with or dupli-
cate, private sector development of such technologies.
(b) AMENDMENT OF CERCLA.—Title III of CERCLA is amended
by adding the following new section at the end thereof:
"SEC. 311. RESEARCH, DEVELOPMENT, AND DEMONSTRATION.
"(a) HAZARDOUS SUBSTANCE RESEARCH AND TRAINING.—
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"(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
establish 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, assess-
ment, and evaluation of the effects on human health of
hazardous substances.
"(H) Methods to assess the risks to human health
presented 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 environmen-
tal and occupational health and safety and in the
public health and engineering aspects of hazardous
waste control.
"(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, eval-
uation, and treatment of hazardous substances.
"(C) Owners and operators of facilities at which hazard-
ous substances are located.
"(D) State and local governments.
"(4) PROCEDURES.—In making grants and entering into coop-
erative agreements and contracts under this subsection, the Sec-
retary shall act through the Director of the National Institute
for Environmental Health Sciences. In considering the alloca-
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tion 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
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 'Adviso-
ry Council') which shall consist of representatives of the follow-
ing:
"(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 resulting from 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.
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"(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 501(c)(3) 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 Admin-
istrator may arrange for the use of sites at which a response
may be undertaken under section 104 for the purposes of carry-
ing out research, testing, evaluation, development, and demon-
stration 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 innova-
tive 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 applicant s 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 pri-
vate nonprofit entity may submit an application to the Ad-
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ministrator 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 and 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
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 sec-
tion 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
preferences either for onsite operation or for utilizing the
site as a source of hazardous substances or pollutants or
contaminants 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 how 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
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any applicant unless such applicant can demonstrate that
it cannot obtain appropriate private financing on reasona-
ble terms and conditions sufficient to carry out such dem-
onstration 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 pro-
gram in any fiscal year and shall not expend more than
$3,000,000 for any single project.
"(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
treatment technologies at sites at which a response may be un-
dertaken under section 104, in fiscal year 1987 and each of the
succeeding 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
sufficiently 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
including 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
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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
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 direct-
ed 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
Secretary 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.
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"(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.
"(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
management.
"(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
support 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 abili-
ty to disseminate results of hazardous substance research
and educational programs through an interdisciplinary
continuing 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 estab-
lishing and operating the regional hazardous substance re-
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search 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
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 con-
strued 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. 210. POLLUTION LIABILITY INSURANCE.
CERCLA is amended by adding the following new title at the end
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.
"(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—
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"(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 com-
pany 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
insurance contracts of any State. The definitions of pollution liabil-
ity and pollution liability insurance under any State law shall not
be applied for the purposes of this title, including recognition or
qualification 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 reg-
ulates, 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.
"(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.
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"(2) STATE REGULATIONS NOT SUBJECT TO EXEMPTION.—Sub-
section (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 insur-
ance losses and expenses.
"(E) Register with and designate the State insurance
commissioner 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
retention 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
initiate 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 foi—
"(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
"(3) the provision of insurance related services or manage-
ment 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
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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
basis 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
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—
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"(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
Securities 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 seq.).
"(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. ".
SEC. 211. DEPARTMENT OF DEFENSE ENVIRONMENTAL RESTORATION PRO-
GRAM.
(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, and 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 ju-
risdiction of the Secretary. The program shall be known as the
'Defense Environmental Restoration Program'.
"(2) APPLICATION OF SECTION 120 OF CERCLA.—Activities of
the program described in subsection (bXD shall be carried out
subject to, and in a manner consistent with, section 120 (relat-
ing to Federal facilities) of the Comprehensive Environmental
Response, 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.
"(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 detec-
tion and disposal of unexploded ordnance) which create* an im-
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minent 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 settle-
ments).
"(3) STATE FEES AND CHARGES.—The Secretary shall pay fees
and charges 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 nongov-
ernmental 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 responsi-
bility 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 govern-
ment agency, to obtain the services of that agency to assist the Secre-
tary in carrying out any of the Secretary's responsibilities under this
section. Services which may be obtained under this subsection in-
clude the identification, investigation, and cleanup of any off-site
contamination possibly resulting from the release of a hazardous
substance or waste at a facility under the Secretary'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.
"§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 hazardous
wastes. The program shall be carried out in consultation and coop-
eration with the Administrator and the advisory council established
under section 311(aX5) of CERCLA. The program shall include re-
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search, development, and demonstration with respect to each of the
following:
"(1) Means of reducing the quantities of hazardous waste gen-
erated by activities and facilities under the jurisdiction of the
Secretary.
"(2) Methods of treatment, disposal, and management (includ-
ing recycling and detoxifying) of hazardous waste of the types
and quantities generated by current and former activities of the
Secretary and facilities currently and formerly under the juris-
diction 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 training
devices which may contribute to establishment of new methods
to control, contain, and treat hazardous substances, to be car-
ried out in consultation and cooperation with, and to the extent
possible in the same manner and standards as, testing, evalua-
tion, and field demonstration carried out by the Administrator,
acting through the office of technology demonstration of the En-
vironmental Protection Agency.
"(b) SPECIAL PERMIT.—The Administrator may use the authorities
of section 3005(g) 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, univer-
sities, 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 potential
use) of the treatment, disposal, and management technologies
that are researched, developed, and demonstrated under this
section.
"(2) ROLE OF 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
through the office of technology demonstration of the Environ-
mental Protection Agency.
"§2703. Environmental restoration transfer account
"(a) ESTABLISHMENT OF TRANSFER ACCOUNT.—
"(1) ESTABLISHMENT.—There is hereby established in the De-
partment of Defense an account to be known as the 'Defense En-
vironmental Restoration Account' (hereinafter in this section re-
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ferred to as the 'transfer account'}. All sums appropriated to
carry out the functions of the Secretary of Defense relating to
environmental restoration under this chapter or any other pro-
vision of law shall be appropriated to the transfer account.
"(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 transferred
by the Secretary to any appropriation account or fund of the Depart-
ment for obligation from that account or fund. Funds so transferred
shall be merged with and available for the same purposes 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 ac-
count 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 restoration
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
"(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 substances
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 ofsignifi-
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cant 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 process of
development to determine levels of exposure which present a sig-
nificant 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 under sub-
section (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 is 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 advisor-
ies 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 advisories.
The Secretary and the Administrator shall enter into a memo-
randum of understanding regarding the manner in which this
subsection shall be carried out, including the manner for trans-
ferring funds and personnel and for coordination 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 Department
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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 following:
"(1) The discovery of releases or threatened releases of hazard-
ous substances at the facility.
"(2) The extent of the threat to public health and the environ-
ment which may be associated with any such release or threat-
ened release.
"(3) Proposals made by the Secretary to carry out response ac-
tions 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 ap-
propriate State and local officials have an adequate opportunity
to comment on notices under paragraphs (1) and (2) of subsec-
tion (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 re-
ferred to in subsection (a)(4). 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 committee
to review and comment on Department of Defense actions and pro-
posed actions with respect to releases or threatened releases of haz-
ardous substances at installations. Members of any such committee
shall include at least one representative of the Secretary, the Ad-
ministrator, and appropriate State and local authorities and shall
include a public representative of the community involved.
"§2706. Annual report to Congress
"(a) REPORT ON PROGRESS IN IMPLEMENTATION.—The Secretary of
Defense shall submit to Congress a report each fiscal year describing
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.
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"(2) The status of response actions contemplated or undertak-
en 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 fa-
cilities other than facilities on the National Priorities List.
"§2707. Definitions
"In this chapter:
"(1) The terms 'environment', 'facility', 'hazardous substance',
'person', 'release', 'removal', 'response', 'disposal', and 'hazard-
ous waste' have the meanings given those terms in section 101
ofCERCLA (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 amend-
ed by inserting after the item relating to chapter 159 the following
new item:
"160. Environmental Restoration 2701".
(3) The table of sections at the beginning of chapter 161 of such
title is amended to reflect the redesignation made by paragraph
(1XA).
(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 Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
"(bXV 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 Congress 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.
"(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 Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
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(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. 212. REPORT AND OVERSIGHT REQUIREMENTS.
Section 301 of CERCLA is amended by adding at the end thereof
the following new 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 and 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 nec-
essary for each department, agency, or instrumentality
which is carrying out any activities of this Act to complete
the implementation 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
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.".
SEC. 213. LOVE CANAL PROPERTY ACQUISITION.
(a) CONGRESSIONAL FINDINGS.—
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(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 prob-
lems.
(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.
(b) AMENDMENT OF SUPERFUND.—Title III of CERCLA is amend-
ed by adding the following new section at the end thereof:
"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 consti-
tuted public agency or authority thereof) for purposes of acquisition
of private property in the Love Canal Emergency Declaration Area.
Such acquisition shall include (but shall not be limited to) all pri-
vate 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 ac-
quired pursuant to this section unless the property owner voluntari-
ly agrees to such acquisition. Compensation for any property ac-
quired pursuant to this section shall be based upon the fair market
value of the property as it existed prior to the emergency declara-
tion. Valuation procedures for property acquired with funds provid-
ed under this section shall be in accordance with those set forth in
the agreement entered into between the New York State Disaster
Preparedness Commission 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
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
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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 Emergen-
cy Declaration Area, including but not limited to residential,
industrial, commercial and recreational, and the risks associat-
ed with such potential uses.
The Administrator shall publish the findings of such study ami
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 (2) 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 III—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 OF 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.
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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.
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 DISTRICTS,
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 emergen-
cy response commission. The Governor may designate as the State
emergency response commission one or more existing emergency re-
sponse organizations that are State-sponsored or appointed. 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 response com-
mission shall appoint local emergency planning committees under
subsection (c) and shall supervise and coordinate the activities of
such committees. The State emergency response commission shall es-
tablish procedures for receiving and processing requests from the
public for information under section 324, including tier II informa-
tion under section 312. Such procedures shall include the designa-
tion of an official to serve as coordinator for information. If the
Governor of any State does not designate a State emergency response
commission within such period, the Governor shall operate as the
State emergency response commission until the Governor 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 emergency
planning districts in order to facilitate preparation and implemen-
tation of emergency plans. Where appropriate, the State emergency
response commission may designate existing political subdivisions or
multijurisdictional planning organizations as such districts. 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 emer-
gency planning committees by agreement. In making such designa-
tion, the State emergency response commission shall indicate which
facilities subject to the requirements of this subtitle are within such
emergency planning district.
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(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 commission
shall appoint members of a local emergency planning committee for
each emergency planning district. Each committee shall include, at
a minimum, representatives from each of the following groups or or-
ganizations: elected State and local officials; law enforcement, civil
defense, ftrefighting, first aid, health, local environmental, hospital,
and transportation personnel; broadcast and print media; communi-
ty groups; and owners and operators of facilities subject to the re-
quirements of this subtitle. Such committee shall appoint a chair-
person and shall establish rules by which the committee shall func-
tion. 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 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.
(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 OF 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 categories
of facilities.
(C) If the Administrator fails to publish an interim final reg-
ulation establishing a threshold planning quantity for a sub-
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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 regu-
lations 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, reactiv-
ity, volatility, dispersability, combustability, or flammability of
a substance. For purposes of the preceding sentence, the term
"toxicity" shall include any short- or long-term health effect
which may result from a short-term exposure to the substance.
(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 (bXV 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 fa-
cility 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 threshold
planning quantity established for such substance, the owner or oper-
ator of the facility shall notify the State emergency response com-
mission 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 Administra-
tor of—
(1) each notification received from a facility under subsection
(c), and
(2) each facility designated by the Governor or State emergen-
cy response commission under subsection (bX2).
SEC. 303. 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 enactment
of this title. The committee shall review such plan once a year, or
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more frequently as changed circumstances in the community 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:
(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 re-
spond to any release of such substances.
(3) Designation of a community emergency coordinator and
facility emergency coordinators, who shall make determinations
necessary to implement the plan.
(4) Procedures providing reliable, effective, and timely notifi-
cation by the facility emergency coordinators and the communi-
ty emergency coordinator to persons designated in the emergency
plan, and to the public, that a release has occurred (consistent
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 per-
sons responsible for such equipment and facilities.
(7) Evacuation plans, including provisions for a precautionary
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 local 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 emergency
planning process as a facility emergency coordinator.
(2) The owner or operator of the facility shall promptly
inform the emergency planning committee of any relevant
changes occurring at such facility as such changes occur or are
expected to occur.
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(3) Upon request from the emergency planning committee, the
owner or operator of the facility shall promptly provide infor-
mation to such committee necessary for developing and imple-
menting 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 com-
mission 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 practicable,
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 re-
gional response teams, as established pursuant to the National Con-
tingency 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 emergen-
cy plan or other issues related to preparation, implementation, or ex-
ercise of such a plan upon request of a local emergency planning
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
release 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 immedi-
ately 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 oper-
ator 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
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(C) occurs in a manner which would require notification
under section 103(a) ofCERCLA.
Unless and until superseded by regulations establishing a quan-
tity 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 in
section 302(a) occurs at a facility at which a hazardous chemi-
cal is produced, used, or stored, and such release requires notifi-
cation under section 103(a) of CERCLA, the owner or operator
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
CERLCA—
(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 co-
ordinator for the local emergency planning committee,
at the same time and in the same form, as notice is
provided to the National Response Center under section
103(a) ofCERCLA.
(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 sec-
tion 301(c), for any area likely to be affected by the release and
to the State emergency planning commission of any State likely
to be affected by the release. With respect to transportation of a
substance subject to the requirements of this section, or storage
incident to such transportation, the notice requirements 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 emergen-
cy results):
(A) The chemical name or identity of any substance in-
volved in the release.
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(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 appropriate,
advice regarding medical attention necessary for exposed
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 per-
sons 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 op-
erator shall provide a written followup emergency notice (or notices,
as more information becomes available} setting forth and updating
the information required under subsection (b), and including addi-
tional information with respect to—
(1) actions taken to respond to and contain the release,
(2) any known or anticipated acute or chronic health risks as-
sociated with the release, and
(3) where appropriate, advice regarding medical attention nec-
essary for exposed individuals.
(d) TRANSPORTATION EXEMPTION NOT 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 control,
disaster response, long-term disaster recovery, national security,
technological and natural hazards, and emergency processes.
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, pre-
paredness, mitigation, response, and recovery capabilities. Such
programs shall provide special emphasis with respect to emer-
gencies associated with hazardous chemicals. Such grants may
not exceed 80 percent of the cost of any such program. The re-
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maining 20 percent of such costs shall be funded from non-Fed-
eral 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 re-
leases of extremely hazardous substances at representative do-
mestic facilities that produce, use, or store extremely hazardous
substances. The Administrator may select representative ex-
tremely hazardous substances from the substances on the list re-
ferred to in section 302(a) for the purposes of this review. The
Administrator shall report interim findings to the Congress not
later than seven months after such date of enactment, and issue
a final report of findings and recommendations to the Congress
not later than 18 months after such date of enactment. Such
report shall be prepared in consultation with the States and ap-
propriate Federal agencies.
(2) REPORT.—The report required by this subsection shall in-
clude the Administrator's findings regarding each of the follow-
ing:
(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, (Hi) identify specific substances, (iv) provide
data on the specific chemical composition of such releases,
and (v) determine the relative concentrations of the constit-
uent 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 groundwater from facilities that
produce, store, or use significant quantities of such extreme-
ly hazardous substances.
(C) The technical and economic feasibility of establish-
ing, maintaining, and operating perimeter alert systems for
detecting releases of such extremely hazardous substances
into the atmosphere, surface water, or groundwater, at fa-
cilities that manufacture, use, or store significant quanti-
ties of such substances.
(3) RECOMMENDATIONS.—The report required by this subsec-
tion shall also include the Administrator's recommendations
foi—
(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
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(B) improving devices or systems for effectively alerting
the public in a timely manner, in the event of an accidental
release of such extremely hazardous substances.
Subtitle B—Reporting Requirements
SEC. 311. MATERIAL SAFETY DATA SHEETS.
(a} BASIC REQUIREMENT.—
(1) SUBMISSION OF 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
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 committee.
(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 materi-
al 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.
(Hi) 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 requir-
ing information to be reported in terms of groups of hazardous
chemicals which present similar hazards in an emergency.
(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 identi-
fying 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 identi-
fying 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
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may, in the Administrator's discretion, be based on classes of chemi-
cals or categories of facilities.
(c) AVAILABILITY OF 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 (aXD, 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 committee.
(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 requested
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 subsection
(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 1910.1200(c) of title 29 of the Code of Federal Regulations,
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 con-
centration as a product packaged for distribution and use by
the general public.
(4) Any substance to the extent it is used in a research labora-
tory or a hospital or other medical facility under the direct su-
pervision 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 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 promulgated under that
Act shall prepare and submit an emergency and hazardous chemi-
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cal inventory form (hereafter in this title referred to as an "invento-
ry 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.
(2) The invento-y form containing tier I information (as described
in subsection (dXD) 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. The preceding sentence does
not apply if an owner or operator provides, by the same deadline
and with respect to the same calendar year, tier II information (as
described in subsection (d)(2)) to the recipients described in para-
graph (1).
(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) TlER I INFORMATION.—
(A) AGGREGATE INFORMATION BY CATEGORY.—An invento-
ry form shall provide the information described in subpara-
graph (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.
(Hi) The general location of hazardous chemicals in
each category.
(C) MODIFICATIONS.—For purposes of reporting informa-
tion under this paragraph, the Administrator may—
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(i) modify the categories of health and physical haz-
ards as set forth under the Occupational Safety and
Health Act of Iff70 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 personnel.
(2) TIER n 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 chem-
ical 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 withhold
location information of a specific hazardous chemical from
disclosure to the public under section 324-
(e) AVAILABILITY OF TIER IIINFORMATION.—
(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 de-
scribed in subsection (d), to the person making the request. Any
such request shall be with respect to a specific facility.
(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 emergency
planning committee. Upon receipt of a request for tier II infor-
mation, the State commission or local committee shall, pursu-
ant to paragraph (1), request the facility owner or operator for
the tier II information and make available such information 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 II information which a State emergency response
commission or local emergency planning committee has in
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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 have the tier II in-
formation in its possession, upon a request for tier II infor-
mation the State emergency response commission or local
emergency planning committee shall, pursuant to para-
graph (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 10,000pounds
present at the facility at any time during the preceding cal-
endar year and make such information available in accord-
ance 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 re-
spect 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 request
from a person must include the general need for the infor-
mation. 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 in-
formation on behalf of the person making the request.
Upon receipt of any information requested on behalf of
such person, the State emergency response commission or
local emergency planning committee shall make the infor-
mation 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 para-
graph 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 conduct
an ore-site inspection of the facility and shall provide to the fire de-
partment specific location information on hazardous chemicals 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 require-
ments 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 chemi-
cal release form as published under subsection (g) for each toxic
chemical listed under subsection (c) that was manufactured, proc-
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essed, or otherwise used in quantities exceeding the toxic chemical
threshold quantity established by subsection (f) during the preceding
calendar year at such facility. Such form shall be submitted to the
Administrator and to an official or officials of the State designated
by the Governor on or before July 1, 1988, and annually thereafter
on July 1 and shall contain data reflecting releases during the pre-
ceding 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 Classi-
fication Codes 20 through 39 (as in effect on July 1, 1985) and
that manufactured, processed, or otherwise used a toxic chemi-
cal listed under subsection (c) in excess of the quantity of that
toxic chemical established under subsection (f) during the calen-
dar year for which a release form is required under this section.
(B) The Administrator may add or delete Standard Industri-
al Classification Codes for purposes of subparagraph (A), but
only to the extent necessary to provide that each Standard In-
dustrial Code to which this section applies is relevant to the
purposes 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 chemcial, 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 manufactures,
processes, or otherwise uses a toxic chemical listed under subsec-
tion (c) if the Administrator determines that such action is war-
ranted on the basis of toxicity of the toxic chemical, proximity
to other facilities that release the toxic chemical or to popula-
tion centers, the history of releases of such chemical at such fa-
cility, or such other factors as the Administrator deems appro-
priate.
(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.—
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(1) IN GENERAL.—The Administrator may by rule add or
delete a chemical from the list described in subsection (c) at any
time.
(2) ADDITIONS.—A chemical may be added if the Administra-
tor determines, in his judgment, that there is sufficient evidence
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
(Hi) its toxicity and tendency to bioaccumulate in the
environment,
a significant adverse effect on the environment of sufficient
seriousness, in the judgment of the Administrator, to war-
rant 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 of any calendar year and before January 1 of
the next calender year shall take effect beginning with the cal-
endar year following such next calendar year.
(e) PETITIONS.—
(1) IN GENERAL.—Any person may petition the Administrator
to add or delete a chemical from the list described in subsection
(c) on the basis of the criteria in subparagraph (A) or (B) of sub-
section (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 (dX%) or (dK3)-
(B} Publish an explanation of why the petition is denied.
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(2) GOVERNOR PETITIONS.—A State Governor may petition the
Administrator to add or delete a chemical from the list de-
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 petition
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 pe-
tition, unless the Administratoi—
(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 sub-
section (d)(2) 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,
10,000pounds 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,
75,000pounds of the toxic chemical per year.
(ii) For the form required to be submitted on or
before July 1, 1989, 50,000pounds of the toxic chemical
per year.
(Hi) 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 cat-
egories 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
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person or persons completing the report, regarding the accu-
racy and completeness of the report; and
(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 general
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.
(Hi) For each wastestream, the waste treatment or
disposal methods employed, and an estimate of the
treatment efficiency typically achieved by such methods
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 monitor-
ing or measurement of the quantities, concentration, or frequen-
cy of any toxic chemical released into the environment beyond
that monitoring and measurement required under other provi-
sions of law or regulation. In order to assure consistency, the
Administrator shall require that data be expressed 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 governmen-
tal agencies, researchers, and other persons in the conduct of re-
search and data gathering; to aid in the development of appropriate
regulations, guidelines, and standards; and for other similar pur-
poses.
(i) MODIFICATIONS IN REPORTING FREQUENCY.—
(1) IN GENERAL.—The Administrator may modify the frequen-
cy of submitting a report under this section, but the Adminis-
trator may not modify the frequency to be any more often than
annually. A modification may apply, either nationally 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—
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(i) experience from previously submitted toxic chemi-
cal release forms, and
(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 agencies
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 subsec-
tion.
(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 reporting1 period begin-
ning 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 of any calendar year and before
January 1 of the next calendar year 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.
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(k) REPORT.—Not later than June 30, 1991, the Comptroller Gen-
eral, in consultation with the Administrator and appropriate offi-
cials in the States, shall submit to the Congress a report including
each of the following:
(1) A description of the steps taken by the Administrator and
the States to implement the requirements of this section, includ-
ing 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 Sci-
ences using mass balance information collected by the Adminis-
trator 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 analysis 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.
(Dj 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 enact-
ment 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 nec-
essary for the study from a representative number of facilities
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
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particular part thereof) to which the Administrator or any offi-
cer, employee, or representative has access under this section 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 author-
ized representatives of the United States concerned with carry-
ing 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 LA W.
(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.—Any State or local law en-
acted after August 1, 1985, which requires the submission of a mate-
rial safety data sheet from facility owners or operators shall require
that the data sheet be identical in content and format to the data
sheet required 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 (includ-
ing information on the location and quantity of hazardous chemi-
cals present at the facility), through additional sheets attached to
the data sheet or such other means as the State or locality considers
appropriate.
SEC. 322. TRADE SECRETS.
(a) AUTHORITY To WITHHOLD INFORMATION.—
(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 with-
hold from such submittal the specific chemical identity (includ-
ing the chemical name and other specific identification), as de-
fined in regulations prescribed by me Administrator under sub-
section (c), if the person complies with paragraph (2).
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(B) Any person withholding the specific chemical identity
shall, in the place on the submittal where the chemical identity
would normally be included, include the generic class or catego-
ry of the hazardous chemical, extremely hazardous substance,
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
(Hi) 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 (AXUi), 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.
(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
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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 accord-
ance with this subsection, as to whether information withheld
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 determine
whether the explanation presents assertions which, if true, are
sufficient to support a finding that the specific chemical identi-
ty is a trade secret.
(3) FINDING OF SUFFICIENT ASSERTIONS.—
(A) If the Administrator determines pursuant to para-
graph (2) that the explanation presents sufficient assertions
to support a finding that the specific chemical identity is a
trade secret, the Administrator shall notify the trade secret
claimant that he has 30 days to supplement the explana-
tion 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 spe-
cific chemical identity. The trade secret claimant has 30
days in which he may appeal the Administrator's determi-
nation under this subparagraph to the Administrator. If
the Administrator does not reverse his determination under
this subparagraph in such an appeal by the 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 determi-
nation to the Administrator, or, upon a showing of good
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cause, amend the original explanation by providing supple-
mentary 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 judicial
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 pro-
cedures under paragraph (3) of this subsection apply.
(e) EXCEPTION FOR INFORMATION PROVIDED TO HEALTH PROFES-
SIONALS.—Nothing in this section, or regulations adopted 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; AVAILABIL-
ITY TO PUBLIC.—Any information submitted to the Administrator
under subsection (a)(2) or subsection (dX3) (except a specific chemical
identity) shall be available to the public, except that upon a show-
ing satisfactory to the Administrator by any person that the infor-
mation (or a particular part thereof) to which the Administrator
has access under this section if made public would divulge informa-
tion entitled to protection under section 1905 of title 18, United
States Code, such information or part shall be considered confiden-
tial in accordance with the purposes of that section, except that
such information or part may be disclosed to other officers, employ-
ees, or authorized representatives of the United States concerned
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 iden-
tify the adverse health effects associated with the hazardous chemi-
cal or extremely hazardous substance and shall assure that such in-
formation is provided to any person requesting information about
such hazardous chemical or extremely hazardous substance.
(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.
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SEC. 323. PROVISION OF INFORMATION TO HEALTH PROFESSIONALS, DOC-
TORS, 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 confi-
dentiality agreement under subsection (d). The written statement of
need shall be a statement that the health professional has a reason-
able 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 specif-
ic chemical identity of a chemical under section 322 when such in-
formation is a trade secret shall not apply to information required
to be provided under this subsection, subject to the provisions 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 chemical iden-
tity, if known, of a hazardous chemical, extremely hazardous sub-
stance, or a toxic chemical, to any treating physician or nurse who
requests such information if such physician or nurse determines
that—
(1) a 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 information
to the physician or nurse. The authority to withhold the specific
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 infor-
mation required to be provided to a treating physician or nurse
under this subsection. No written confidentiality agreement or state-
ment 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.—
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(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 commu-
nity 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 confidentiality
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 agreement or by
the person providing such information. Nothing in this subsection
shall preclude the parties to a confidentiality agreement from pursu-
ing 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(a)(2), inventory
form, toxic chemical release form, and followup emergency notice
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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 subject
to the requirements of section 312, the State emergency response
commission and the appropriate local emergency planning commit-
tee shall withhold from disclosure under this section the location of
any specific chemical required by section 312(d)(2) 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 FOR EMERGENCY PLANNING.—The Adminis-
trator may order a facility owner or operator (except an owner or op-
erator 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 Ad-
ministrator in the case of a violation of the requirements of sec-
tion 30k-
(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 pursu-
ant to this subsection, the Administrator shall take into ac-
count the nature, circumstances, extent and gravity of the viola-
tion or violations and, with respect to the violator, ability to
pay, any prior history of such violations, the degree of culpabil-
ity, economic benefit or savings (if any) resulting from the viola-
tion, and such other matters as justice may require.
(2) CLASS n ADMINISTRATIVE PENALTY.—A civil penalty of not
more than $25,000per 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 viola-
tion 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
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collected under section 16 of the Toxic Substances 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) 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 viola-
tion.
(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.
(d) CIVIL, ADMINISTRATIVE, AND CRIMINAL PENALTIES WITH RE-
SPECT TO TRADE SECRETS.—
(1) ClVIL AND ADMINISTRATIVE PENALTY FOR FRIVOLOUS
CLAIMS.—If the Administrator determines—
(A)(i) 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.
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(2) CRIMINAL PENALTY FOR DISCLOSURE OF TRADE SECRET IN-
FORMATION.—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 appropriate dis-
trict court of the United States by filing a notice of appeal in
such court within 30 days after 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 viola-
tion 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 en-
tered final judgment in favor of the United States, the Admin-
istrator 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 viola-
tion and the assessment of the civil penalty on the record.
(2) The Administrator may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant
papers, books, or documents in connection with hearings under
this section. 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 appli-
cation 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 adminis-
trative law judge, or both, and any failure to obey such order of
the court may be punished by such court as a contempt 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:
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(i) Submit a followup emergency notice under section
(ii) Submit a material safety data sheet or a list
under section 311(a).
(Hi) Complete and submit an inventory form under
section 312(a) containing tier I information as de-
scribed in section 312(dXV unless such requirement
does not apply by reason of the second sentence of sec-
tion 312(aX2).
(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.
(Hi) 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 section
322(c).
(vi) Render a decision in response to a petition under
section 322(d) within 9 months after receipt of the peti-
tion.
(C) The Administrator, a State Governor, or a State emer-
gency response commission, for failure to provide a mecha-
nism for public availability of information in accordance
with section 324(a).
(D) A State Governor or a State emergency response com-
mission for failure to respond to a request for tier II infor-
mation under section 312(eX3) within 120 days after the
date of receipt of the request.
(2) STATE OR LOCAL SUITS. —
(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).
(Hi) Make available information requested under sec-
tion 311(c).
(iv) Complete and submit an inventory form under
section 312(a) containing tier I information unless such
requirement does not apply by reason of the second sen-
tence of section 312(aX2).
(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(eXV-
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(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 opera-
tor of a facility shall be brought in the district court for the dis-
trict in which the alleged violation occurred.
(2) Any action under subsection (a) against the Administrator
may be brought in the United States District Court for the Dis-
trict of Columbia.
(c) RELIEF.—The district court shall have jurisdiction in actions
brought under subsection (a) against an owner or operator of a facil-
ity 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 (a)(lXB) or
(a)(lXC) prior to 60 days after the date on which the plaintiff
gives notice to the Administrator, State Governor, or State emer-
gency response commission (as the case may be) that the plain-
tiff will commence the action. Notice under this paragraph
shall be given in such manner as the Administrator shall pre-
scribe 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.
(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) 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.
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(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 in-
terest unless the Administrator or the State shows that the per-
son '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 nec-
essary 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(a)(2).
(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.
(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 Reg-
ulations, 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
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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 beginning
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
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 mitigate
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;
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(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 pol-
lution (including the development, evaluation, and testing of in-
dividual 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 effec-
tive;
(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 scien-
tific community, industry, and public interest organizations to assist
him in carrying out the research program for radon gas and indoor
air quality.
(a) IMPLEMENTATION PLAN.—Not later than 90 days after the en-
actment of this Act, the Administrator shall submit to the Congress
a plan for implementation of the research program under this sec-
tion. 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
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 activities
under this title and under section 118(k) of the Superfund Amend-
ments and Reauthorization Act of 1986 (relating to radon gas as-
sessment and demonstration program) not to exceed $5,000,000 for
each of the fiscal years 1987, 1988, and 1989. Of such sums appro-
priated in fiscal years 1987 and 1988, two-fifths shall be reserved
for the implementation of section 118(k)(2).
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TITLE V—AMENDMENTS OF THE INTERNAL
REVENUE CODE OF 1986
SEC. SOI. 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 December
31, 1986, and before January 1, 1992.
"(2) NO TAX IF UNOBLIGATED BALANCE IN FUND EXCEEDS
$3,500,000,000.—IF ON DECEMBER si, 1989, OR DECEMBER si,
1990—
"(A) the unobligated balance in the Hazardous Substance
Superfund exceeds $3,500,000,000, and
"(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."
(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.
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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 petro-
leum) 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 cents a barrel.
"(2) IMPORTED PETROLEUM PRODUCTS.—The rate of the tax
imposed 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 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 removed 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."
(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 (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 preceding
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 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.
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"(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
"(ii)(I) 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)".
(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 separated
isomer of xylene."
(d) EXEMPTION FOR CERTAIN RECYCLED CHEMICALS.—Subsection
(b) 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 section
4661(a) on any chromium, cobalt, or nickel which is divert-
ed or recovered in the United States from any solid waste
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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 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 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 (CXV
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.—
(1) IN GENERAL.—Subsection (b) of section 466% 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,
"(Hi) 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,
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"(ii) sold for use by any purchaser in a qualified
animal feed use, or
"(in) 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 NONQUALIFIED 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."
(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
product 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."
(f) CERTAIN EXCHANGES BY TAXPAYERS NOT TREATED AS SALES.—
Subsection (c) of section 4662 of such Code (relating to use by manu-
facturers) is amended to read as follows:
"(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
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—
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"(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 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)."
(g) SPECIAL RULES RELATING TO HYDROCARBON STREAMS CON-
TAINING 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 para-
graph:
"(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 o 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 (cX2)(B) 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."
(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
1, 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 addition-
al amounts) shall not be assessed, and if assessed, the
assessment shall be abated, and if collected shall be
credited or refunded (with interest) as an overpayment.
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(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 sec-
tion 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, sub-
paragraph (A) of section 6416(a)(l) of such Code shall
be applied without regard to the material preceding
"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.
(C) 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 Janu-
ary 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 importer of
such chemical for purposes ofsubchapter 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
amendment made by subsection (f) shall not apply if the
manufacturer, producer, or importer treated such exchange
as a sale for purposes of section 4661 of such Code and paid
the tax imposed by such section.
CD) REGISTRATION REQUIREMENTS.—Section 4S62(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 4S62(eX2)(AXii) 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.
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(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 intermediate
hydrocarbon stream, the amendment made by subsection (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 repealed.
(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 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
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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 PRECRIBE 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 sec-
tion 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).
"(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 con-
stitute more than 50 percent of the weight of the materials
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used to produce such substance (determined on the basis of
the predominant method of production).
"(3) INITIAL LIST OF 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 ov 3 pet. carbon
Unwrought nickel
Nickel waste and scrap
Wrought nickel rods and wire
Nickel powders
Phenolic resins
Polyvmylchloride 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
Isophthalic 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 necessary
to carry out the purposes of this subchapter.
"(B) AUTHORITY TO ADD SUBSTANCES TO LIST BASED ON
VALUE.—The Secretary may, to the extent necessary to carry
out the purposes of this subchapter, add any substance to
the list under paragraph (3) if such substance would be de-
scribed in paragraph (2)(B) if 'value' were substituted for
'weight' therein.
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"(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 warehousing.
"(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 sub-
chapter 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 sec-
tion 4661(eX2XAXiiXW 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—
"(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.—
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"(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 4611(a) by reason of paragraph
(2) of section 4611(e), and
"(B) beginning after the calendar year which includes the
termination date under paragraph (3) of section 4611(e)."
(b) TECHNICAL AMENDMENTS.—
(1) NO CREDITS ALLOWED AGAINST TAX.—
(A) Paragraph (2) of section 26(b) of such Code, as amend-
ed by the Tax Reform Act of 1986, is amended by redesig-
nating subparagraphs (B) through (J) as subparagraphs (C)
through (K), respectively, and by inserting after subpara-
graph (A) the following new subparagraph:
"(B) section 59A (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 controlled
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:
"(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 spec-
ified in paragraph (3), and the amount specified in para-
graph (4)".
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(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 OF 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:
"(Hi) the tax imposed by section 59A, over".
(D) CONFORMING AMENDMENT TO PENALTY FOR FAILURE
TO PAY ESTIMATED TAX.—Paragraph (1) of section 6655(f) 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 VII. 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 OF TRUST FUND.—There is established in the
Treasury of the United States a trust fund to be known as the 'Haz-
ardous Substance Superfund' (hereinafter in this section referred to
as the 'Superfund'), consisting of such amounts as may be—
"(1) appropriated to the Superfund 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),
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"(2) amounts recovered on behalf of the Superfund under the
Comprehensive Environmental Response, Compensation, and Li-
ability 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(c)(3) 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), &), (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
"(Hi) section lll(m) 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 nec-
essary 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
amount equal to the amount which the Secretary estimates will
be equal to the sum of the amounts appropriated to the Super-
fund under subsection (b)(l) 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.
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"(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 remaining
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 ap-
propriated, 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 ap-
propriated 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
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 Internal
Revenue Code of 1986."
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(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 (wherever
appropriate) a reference to the Hazardous Substance Superfund
established by the amendments made by this section.
PARTII—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 COM-
MERCIAL TRANSPORTATION ON INLAND WATERWAYS.
(a) GENERAL RULE.—
(1) GASOLINE.—
(A) GASOLINE TAX BEFORE AMENDMENT BY TAX REFORM
ACT OF 1986.—
(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)—
"(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.—
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"(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 (b)(2XB)
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 attrib-
utable to the Leaking Underground Storage Tank Trust
Fund financing rate under subsection (bX2XB)), section
404Kd), and section 4042 (to the extent attributable to the
Leaking Underground Storage Tank Trust Fund financing
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}. "
(Hi) 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 the following new subsections:
"(d) 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 (D—
"(A) the Highway Trust Fund financing rate is 9 cents a
gallon, and
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"(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 (d)(2)(A) 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 (d)(2XB)
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 attrib-
utable to the Leaking Underground Storage Tank Trust
Fund financing rate under subsection (d)(2XB)), section
4041(d), and section 4042 (to the extent attributable to the
Leaking Underground Storage Tank Trust Fund financing
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). "
(Hi) 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 VE-
HICLES, MOTORBOATS, OR TRAINS.—In addition to the taxes im-
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 oper-
ator of a motor vehicle, motorboat, or train for use as a fuel
in such motor vehicle, motorboat, or train, or
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174
"(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 imposed
a tax of 0.1 cents a gallon on any liquid—
"(A) sold by any person to an owner, lessee, or other oper-
ator 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 subparagraph
(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 40Ai(d).—The
Leaking Underground Storage Tank Trust Fund financing rate
under paragraph (2KB) shall not apply to the use of any fuel if
tax under section 4041(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."
(b) ADDITIONAL TAXES NOT 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:
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"(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 section
404Kd) 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(c)(4) of such Code (defining motorboat fuel taxes)
is amended by striking out "section 4081" and inserting in
lieu thereof "section 4081 (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 re-
spect 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 financing
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
amended by adding at the end thereof the following new
paragraph:
"(4) SECTION NOT TO APPLY TO CERTAIN OFF-HIGHWAY BUSI-
NESS USES WITH RESPECT TO THE TAX IMPOSED BY SECTION 1(081
AT THE LEAKING UNDERGROUND STORAGE TANK TRUST FUND FI-
NANCING RATE.—This section shall not apply with respect to the
tax imposed by section 4081 at the Leaking Underground Stor-
age Tank Trust Fund financing rate on gasoline used in any
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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 404Kd)
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 404Kd).—For pur-
poses of subsections (a), (b), and (c), the taxes imposed by section
4041(d) shall be treated as imposed by section 404Ka)."
(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 OF 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
the 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."
(2) Paragraph (3) of section 404Kf) 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 404Kg) 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 ".
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(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 in-
serting in lieu thereof 'or 4071'."
(5) Paragraph (2) of section 6416(b) of such Code is amended
by inserting "or under paragraph (1)(A) or (2)(A) of section
4041(d)" after "section 4041 (a) .
(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 404Kd) (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 Leaking
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 sec-
tion, and
"(4) amounts received in the Treasury and collected under sec-
tion 9003(hX6) of the Solid Waste Disposal Act.
"(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.
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"(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 re-
spect of gasoline used for certain nonhighway pur-
poses or by local transit systems), and
"(III) 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 Li-
ability 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."
(b) CLERICAL AMENDMENT.—The table of sections for subchapter A
of chapter 98 of such Code is amended by adding after the item re-
lating 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.
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179
PART III—COORDINATION WITH OTHER
PROVISIONS OF THIS ACT
SEC. 531. COORDINATION.
Notwithstanding any provision of this Act not contained in this
title, any provision of this Act (not contained in this title) which—
(1) imposes any tax, premium, or fee,
(2) establishes any trust fund, or
(3) authorizes amounts to be expended from any trust fund,
shall have no force or effect.
And the House agree to the same.
That the House recede from its amendment to the amendment
of the Senate to the title of the bill.
From the Committee on Energy and Commerce for consideration
of titles I-III of the House amendment to the Senate amendment,
and the entire Senate amendment, except for title II:
JOHN D. DINGELL.
JAMES J. FLORIO.
DENNIS E. ECKART.
RALPH M. HALL.
BILLY TAUZIN.
AL SWIFT.
From the Committee on Energy and Commerce:
Solely for sections 102, 103, 105, 111, 113, 115, 117, 120, 121, 122,
123, 124, and 127 of title I and title III of the House amendment to
the Senate amendment, and modifications committed to conference
including section 157 of the Senate amendment:
RON WYDEN.
Solely for sections 101, 104, 106, 107, 108, 109, 110, 112, 114, 116,
118, 119, 125, and 126 of title I and title II of the House amendment
to the Senate amendment, and modifications committed to confer-
ence:
THOMAS J. TAUKE.
NORMAN F. LENT.
DON RITTER.
From the Committee on Energy and Commerce solely for sec-
tions 101, 104, 106, 107, 108, 109, 110, 112, 114, 116, 118, 119, 125,
and 126 of title I and title II of the House amendment to the
Senate amendment, and modifications committed to conference:
JACK FIELDS.
From the Committee on Public Works and Transportation for
consideration of titles I, II (except for section 205) and IV of the
House amendment to the Senate amendment, and title I of the
Senate amendment, except for sections 110, 111, 127, 157, and 160
thereof:
JAMES J. HOWARD.
GLENN M. ANDERSON.
ROBERT A. ROE.
JOHN BREAUX.
NORMAN MINETA.
BOB EDGAR.
GENE SNYDER.
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180
From the Committee on Public Works and Transportation for
consideration of titles I, II (except for section 205) and IV of the
House amendment to the Senate amendment, and title I of the
Senate amendment, except for sections 110, 111, 127, 157, and 160
thereof:
ARLAN STANGELAND.
NEWT GINGRICH.
From the Committee on Public Works and Transportation for
consideration of title III of the House amendment to the Senate
amendment, and sections 110, 111, 127, and 160 of title I of the
Senate amendment:
ROBERT A. ROE.
BOB EDGAR.
ARLAN STANGELAND.
From the Committee on Ways and Means for consideration of
title V of the House amendment to the Senate amendment, and
title II of the Senate amendment:
DAN ROSTENKOWSKI.
J.J. PICKLE.
C.B. RANGEL.
PETE STARK.
THOMAS J. DOWNEY.
MARTY Russo.
DONALD J. PEASE.
From the Committee on Ways and Means for consideration of
title V of the House amendment to the Senate amendment, and
title II of the Senate amendment:
GUY VANDER JAGT.
BILL FRENZEL.
From the Committee on Merchant Marine and Fisheries for con-
sideration of sections 104, 107, 108, 111, 113, 116, 121, 122, and 127
of title I of the House amendment to the Senate amendment, and
modifications committed to conference:
WALTER B. JONES.
MARIO BIAGGI.
GERRY E. STUDDS.
BOB DAVIS.
From the Committee on Merchant Marine and Fisheries for con-
sideration of title IV of the House amendment to the Senate
amendment, and modifications committed to conference:
WALTER B. JONES.
MARIO BIAGGI.
GERRY E. STUDDS.
BARBARA A. MIKULSKI.
MIKE LOWRY.
BILLY TAUZIN.
From the Committee on Merchant Marine and Fisheries for con-
sideration of title IV of the House amendment to the Senate
amendment, and modifications committed to conference:
BOB DAVIS.
NORMAN F. LENT.
From the Committee on the Judiciary for consideration of sec-
tions 107, 113, 117, 119, and 122, of title I and sections 203 and 206
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181
of title II of the House amendment to the Senate amendment, and
modifications committed to conference:
PETER W. RODINO.
DAN GLICKMAN.
HAMILTON FISH, Jr.
THOMAS N. KINDNESS.
From the Committee on Armed Services for consideration of sec-
tion 213 of title II of the House amendment to the Senate amend-
ment, and section 162 of title I of the Senate amendment:
DAVE McCuRDY,
DAVID O'B. MARTIN,
Managers on the Part of the House.
From the Committee on Environment and Public Works for the
purpose of considering all matter other than that contained in title
II of the Senate amendments, and section 463 of title IV and title V
of the House amendments:
ROBERT T. STAFFORD.
JOHN H. CHAFEE.
ALAN K. SIMPSON.
GORDON J. HUMPHREY.
PETE V. DOMENICI.
DAVID DURENBERGER.
LLOYD BENTSEN.
From the Committee on Environment and Public Works for the
purpose of considering all matter other than that contained in title
II of the Senate amendments, and section 463 of title IV and title V
of the House amendments:
DANIEL PATRICK MOYNIHAN.
GEORGE MITCHELL.
MAX BAUCUS.
FRANK R. LAUTENBERG.
From the Committee on Finance for the purpose of considering
section 463 of title IV and title V of the House amendments, and
title II of the Senate amendments:
BOB PACKWOOD.
BOB DOLE.
WILLIAM V. ROTH, Jr.
RUSSELL B. LONG.
LLOYD BENTSEN.
From the Committee on the Judiciary for the purpose of joining
in the consideration of sections 135, 143, 144, and to the extent it
may affect the Federal courts or relate to claims against the
United States, section 150, together with such amendments related
directly thereto as may have been adopted by the House:
STROM THURMOND,
ARLEN SPECTER,
EDWARD M. KENNEDY,
Managers on the Part of the Senate.
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JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF
CONFERENCE
SECTION 1—SHORT TITLE AND TABLE OF CONTENTS
Senate amendment—The short title of the Senate amendment is
the "Superfund Improvement Act of 1985".
House amendment—The short title of the House amendment is
the "Superfund Amendments of 1985".
Conference substitute—The short title of the conference substi-
tute is the "Superfund Amendments and Reauthorization Act of
1986". The table of contents in the conference substitute was
changed to conform to the changes in the text.
SECTION 2—CERCLA AND ADMINISTRATOR
Senate amendment—The Senate amendment has no comparable
provision.
House amendment—The House amendment defines the term
"CERCLA" as being the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 and the term "Administra-
tor" as being the Administrator of the Environmental Protection
Agency.
Conference substitute—The conference substitute adopts the
House provision. The term "CERCLA" refers to the 1980 Act, as
amended, and references in CERCLA to "this Act" include the
amendments made by the Superfund Amendments and Reauthor-
ization Act of 1986.
SECTION 3—LIMITATION ON CONTRACT AND BORROWING AUTHORITY
Senate amendment—The Senate amendment has no comparable
provision.
House amendment—The House amendment states that authori-
ties provided by the House amendment are effective only to such
extent as monies are provided in appropriations Acts.
Conference substitute—The conference substitute adopts the
House provision. The amendment does not dimmish any obligation
of the United States under current law.
SECTION 4—EFFECTIVE DATE
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute contains a pro-
vision establishing the effective date for the requirements of the
Superfund Amendments and Reauthorization Act of 1986. The gen-
eral rule is that the requirements of ttles I, II, III, and IV of the
(183)
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184
Act take effect on the date of enactment. There are, however, two
exceptions to the general rule.
First, if otherwise specified in the Act, the requirements would
take effect on the date so specified.
Second, special rules apply with respect to section 121 of
CERCLA (relating to cleanup standards). The requirements of sec-
tion 121 do not apply to a remedial action for which the record of
decision was signed (or the consent decree was lodged) prior to the
date of enactment. The requirements of section 121 apply to the
maximum extent practicable to a remedial action for which the
record of decision is signed (or the consent decree is lodged) within
the 30-day period immediately following enactment of the Act, and
the EPA Administrator must certify in writing that such require-
ments have been complied with to the maximum extent practica-
ble. The requirements of section 121 apply without qualification to
a remedial action for which the record of decision is signed (or the
consent decree is lodged) after the 30-day period immediately fol-
lowing enactment of the Act. In addition, the requirements of sec-
tion 121 apply without qualification to any remedial action for
which a record of decision was signed (or the consent decree was
lodged) before enactment of the Act and is reopened after enact-
ment of the Act to modify or supplement the selection of the
remedy.
The Conferees were informed that approximately 18 sites would
reach the point of decision during the 30-day period immediately
following enactment of the Act, assuming an enactment date of
September 1, 1986.
TITLE I—PROVISIONS RELATING PRIMARILY TO RESPONSE
AND LIABILITY
SKCTION 101—AMENDMENTS TO CERCLA DEFINITIONS
RELEASE
Senate amendment—The Senate amendment does not contain
any comparable provision.
House amendment—The House amendment proposes to amend
section 101(22) of CERCLA, which is the definition of "release," to
explicitly incorporate "the abandonment or discarding of barrels,
containers, and other closed receptacles containing any hazardous
substance or pollutant or contaminant."
Conference substitute—The conference substitute adopts the
House proposal. This amendment to CERCLA confirms and clari-
fies the President's present authority under existing law to take re-
sponse action with regard to such receptacles, whether or not they
have broken open and are currently leaking hazardous substances,
pollutants or contaminants. The phrase "containing any hazardous
substance or pollutant or contaminant" includes residues of such
hazardous substance or pollutant or contaminant.
REMEDIAL ACTION
Senate amendment—The Senate amendment proposes to amend
section 101(24) of CERCLA, which is the definition of "remedy or
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185
remedial action," to explicitly include the off-site transport, storage
or secure disposition of hazardous substances, pollutants or con-
taminants.
House amendment—The House amendment contains a provision
identical to that of the Senate.
Conference substitute—The conference substitute adopts the iden-
tical provisions.
RESPONSE
Senate amendment—The Senate amendment does not contain
any provision comparable to that of the House amendment.
House amendment—The House amendment proposes to modify
CERCLA section 101(25), which is the definition of "response," to
explicitly include enforcement activities.
Conference substitute—The conference substitute adopts the
House proposal. This amendment clarifies and confirms that such
costs are recoverable from responsible parties, as removal or reme-
dial costs under section 107.
POLLUTANT OR CONTAMINANT
Senate amendment—The Senate amendment does not contain
any provision comparable to that of the House amendment.
House amendment—The House amendment proposes to relocate
the definition of "pollutant or contaminant" from section 104(aX2)
of CERCLA, which is its current placement, to section 101, which is
the law's definitions section.
Conference substitute—The conference substitute adopts the
House amendment. This provision does not expand CERCLA liabil-
ity concerning pollutants, contaminants or hazardous substances,
found in current law.
OWNER OR OPERATOR: DEFINITION OF STATE
Senate amendment—The Senate amendment contains no provi-
sion comparable to that of the House amendment.
House amendment—The House amendment amends section
101(27) of CERCLA, which is the definition of "State," to exclude
units of local government.
Conference substitute—The conference substitute does not include
the House amendment to the definition of "State," leaving it to the
court's interpretation of this provision.
OWNER OR OPERATOR: STATE OR LOCAL GOVERNMENT LIMITATION
Senate amendment—The Senate amendment proposes to modify
section 101(20) of CERCLA, which is the definition of "owner or op-
erator," to exclude a State or local government which acquired
title or possession involuntarily and by virtue of its function as sov-
ereign.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute adopts the
Senate provision, with a modification to clarify that if the unit of
government caused or contributed to the release or threatened re-
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186
lease in question, then such unit is subject to the provisions of
CERCLA, both procedurally and substantively, as any non-govern-
mental entity, including liability under section 107 and contribu-
tion under section 113.
ALTERNATIVE WATER SUPPLIES
Senate amendment—The Senate amendment proposes the addi-
tion to section 101 of CERCLA the definition of the term, "alterna-
tive water supplies."
House amendment—The House amendment does not contain any
comparable provision.
Conference substitute—The conference substitute adopts the
Senate amendment.
INDIAN TRIBE
Senate amendment—The Senate amendment amends section
101(16) of CERCLA, which defines "natural resources," to include
as the owner, manager, or trustee of such resources any Indian
tribe or, in certain instances, any member of an Indian tribe.
The Senate amendment also adds a new section 101(36) defining
"Indian tribe" to mean any Indian tribe, band, nation, or other or-
ganized group or community, including any Alaska native village
(but not including a regional or village corporation) which is recog-
nized as eligible for the special programs and services by the
United States to Indians because of their status as Indians.
House amendment—The House amendment contains similar pro-
visions.
Conference substitute—The conference substitute adopts the
Senate provisions.
LANDOWNER LIABILITY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains a proposed
modification of the third-party defense to liability of section
107(b)(3). The purpose of the House amendment was to eliminate
liability which might exist under section 107 for landowners who
acquired title to real property after the time hazardous substances,
pollutants or contaminants had come to be located thereon and
who, although they had exercised due care with respect to discover-
ing such materials, were nonetheless ignorant of their presence.
Conference substitute—The conference substitute adds to section
101 of CERCLA, which is the definitions section, a new term, "con-
tractual relationship." This new definition of contractual relation-
ship is intended to clarify and confirm that under limited circum-
stances landowners who acquire property without knowing of any
contamination at the site and without reason to know of any con-
tamination (or as otherwise noted in the amendment) may have a
defense to liability under section 107 and therefore should not be
held liable for cleaning up the site if such persons satisfy the re-
maining requirements of section 107(b)(3). A person who acquires
property through a land contract or deed or other instrument
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187
transferring title or possession that meets the requirements of this
definition may assert that an act or omission of a third party
should not be considered to have occurred in connection with a con-
tractual relationship as identified in section 107(b) and therefore is
not a bar to the defense.
In the limited circumstances identified in this definition, such
landowners are entitled to the defense if they exercise the requisite
due care upon learning of such release or threat of release. For ex-
ample, where the release or threat of release is caused by an act of
vandalism, the landowner may be able to assert the defense where
he exercises due care and takes satisfactory precautions against
foreseeable acts as discussed below.
The Conferees recognize that the due care requirement embodied
in section 107(bX3) only requires such person to exercise that
degree of due care which is reasonable under the circumstances.
The requirement would include those steps necessary to protect the
public from a health or environmental threat. Finally, the precau-
tions against foreseeable acts of third parties requirement of sec-
tion 107(bX3Xb) does not prevent a subsequent purchaser after con-
tamination has occurred from claiming the defense, but only comes
into play after the landowner acquires the property. Foreseeability
must be considered in light of the specific circumstances of each
case. The provisions of section 101(35)(B) as to "reason to know"
govern the purchaser's responsibility with regard to acts of third
parties prior to the purchase.
Nothing in this provision shall affect the liability of an owner or
operator whose property is taken by a government exercising its
eminent domain authority by purchase or condemnation. The
owner or operator is not relieved of liability under this Act if he
would otherwise have been liable had the purchase or condemna-
tion not occurred. Furthermore, a government authority acquiring
property by such methods shall notify, in a timely manner, the
United States Environmental Protection Agency and the Depart-
ment of Justice upon discovering the existence of a hazardous sub-
stance on the property. In cases involving government purchase or
condemnation, the cost of response may be offset against the just
compensation due to the landowner, if any.
The duty to inquire under this provision shall be judged as of the
tune of acquisition. Defendants shall be held to a higher standard
as public awareness of the hazards associated with hazardous sub-
stance releases has grown, as reflected by this Act, the 1980 Act
and other Federal and State statutes.
Moreover, good commerical or customary practice with respect to
inquiry in an effort to minimize liability shall mean that a reason-
able inquiry must have been made in all circumstances, in light of
best business and land transfer principles.
Those engaged in commercial transactions should, however, be
held to a higher standard than those who are engaged in private
residential transactions. Similarly, those who acquire property
through inheritance or bequest without actual knowledge may rely
upon this section if they engage in a reasonable inquiry, but they
need not be held to the same standard as those who acquire proper-
ty as part of a commercial or private transaction, and those who
acquire property by inheritance without knowing of the inherit-
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188
ance shall not be liable, if they satisfy the remaining requirements
of section 107(b)(3).
Finally, the provision makes clear that this definition does not
alter the liability of any person who would otherwise be liable
under this Act. If a person transfers property with actual knowl-
edge of the release or threatened release without disclosing such
knowledge, such pe.son may not avail himself or herself of a sec-
tion 107(bX3) defence. However, transferring property with disclo-
sure does not provide a person with a defense, if such person is oth-
erwise liable.
SECTION 102—REPORTABLE QUANTITIES
Senate amendment—The Senate amendment contains no compa-
rable provison.
House amendment—The House amendment requires the Admin-
istrator to promulgate regulations establishing reportable quanti-
ties for releases of hazardous substances by December 31, 1986.
Conference substitute—The conference substitute adopts the
House provision as modified. The substitute requires promulgation
of final reportable quantity regulations by December 31, 1986, for
those hazardous substances for which proposed regulations were
published on or before March 1, 1986. For all hazardous substances
for which proposed regulations were not published before March 1,
1986, the President is required to publish proposed regulations not
later than December 31, 1986, and promulgate final regulations not
later than April 30, 1988.
SECTION 103—NOTICES; PENALTIES
Senate amendment—The Senate amendment amends section 103
to require notification of any release of a hazardous substance with
a reportable quantity of one pound or less (or other quantity deter-
mined by the President to potentially require emergency response)
to State and local emergency response officials identified under any
local contingency plan or otherwise likely to be affected by the re-
lease.
House amendment—The House amendment makes a technical
amendment to section 103 of CERCLA.
Conference substitute—The conference substitute adopts the
House provision. The substitute does not make a substantive
change to the notification requirements of section 103 since these
matters are dealt with in title III of this bill.
SECTION 104—RESPONSE AUTHORITIES
SUBSECTION (a)(l)—RESPONSE BY POTENTIALLY RESPONSIBLE PARTIES
Senate amendment—Section 112(a) provides the President with
the authority to authorize the owner or operator of a vessel or fa-
cility from which a release or threat of release emanates, or any
other responsible party, to perform remedial or removal actions if
the President determines that the action will be done properly.
House amendment—Section 104(b) authorizes the Administrator
to allow an owner or operator or other responsible party to carry
out removal or remedial actions in accordance with section 122.
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The Administrator may allow the person to perform the RI/FS if
(1) the person conducting the RI/FS for the responsible party is
found to be qualified by the Administrator and (2) the Administra-
tor enters into an oversight contract with any qualified, objective
person to oversee and review the conduct of the RI/FS, and (3) the
responsible party agrees to reimburse the Fund for any cost in-
curred under the oversight contract.
Conference substitute—The conference substitute provides that
where the President determines that a removal or remedial action
will be done properly and promptly by the owner or operator of a
facility or vessel or by any other responsible party, the President
may allow such person to carry out the action in accordance with
section 122. Provided, however, that no remedial investigation or
feasibility study (RI/FS) may be authorized except (1) where the
President determines that the party is qualified to conduct the RI/
FS; (2) the President contracts with or arranges for a qualified
person to oversee the conduct of the RI/FS; and (3) the responsible
party agrees to reimburse the Fund for any cost incurred by the
Administrator under or in connection with the oversight contract.
The conference substitute also provides that in no event shall a po-
tentially responsible party be subject to a lesser standard of liabil-
ity or receive preferential treatment as a response action contrac-
tor or as a person hired or retained by a response action contract
or with respect to the release or facility in question.
The term "qualified person," refers to someone with the profes-
sional qualifications, expertise, and experience necessary to provide
additional assurance that the President is conducting meaningful
oversight of the remedial investigation and feasibility studies being
performed by potentially responsible parties in accordance with
section 122. The President retains the principal responsibility to
properly oversee the conduct of remedial investigation and feasibil-
ity studies and the qualified person is to work for and assist the
President. Any such person contracted for or arranged for should
be governed by the Agency's standards of ethical conduct relating
to conflict of interest.
SUBSECTION (a)(2)—PUBLIC HEALTH THREATS
Senate amendment—Section 112(a) directs the President to give
primary attention to those releases which may present a public
health threat.
House amendment—Section 104(a) directs the Administrator to
give primary attention to those releases which the Administrator
deems may present a public health threat.
Conference substitute—The conference substitute adopts the
House provision, changing the term "the Administrator" to "the
President" to conform to the agreement on the use of the term
"Administrator." The text of this provision has been incorporated
as the last sentence of section 104(a)(l).
SUBSECTION (b)—REMOVAL ACTION
Senate amendment—The Senate amendment contains no provi-
sion relating to removal actions contributing to long-term, perma-
nent remedies.
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House amendment—Section 104(c) of the House amendment
specifies that any removal action undertaken by the Administrator
shall contribute to the efficient performance of any long-term re-
medial action to the maximum extent practicable.
Conference substitute—The conference substitute adds a new sec-
tion 104(a)(2) to CERCLA to provide that any removal action under-
taken by the President under subsection (a) or by any other person
referred to in section 122 should, to the extent the President deerns
practicable, contribute to the efficient performance of any long-
term remedial action with respect to the release or threatened re-
lease concerned.
The General Accounting Office (GAO) has reported that on sever-
al occasions EPA has carried out short-term removal actions with-
out considering how such actions will contribute to the long-term
performance of remedial actions at the site. To the maximum
extent practicable, the Agency should avoid wasteful, repetitive,
short-term removal actions that do not contribute to the efficient,
cost-effective performance of long-term remedial actions. This pref-
erence for removal actions that contribute to the efficient perform-
ance of long-term remedial actions does not constitute a defense to
liability under section 107(a).
SUBSECTION (c)—LIMITATIONS ON RESPONSE
Senate amendment—Section 112(b) prohibits the President from
undertaking a response action under section 104 in response to a
release of a naturally occurring substance in its unaltered form or
altered through natural processes; from products which are part of
the structure of residential buildings or businesses or community
structures which result in exposure in such structures; or into
public or private drinking water supplies due to the deterioration
of the system through ordinary use. These limitations on response
actions will not apply, however, if in the President's discretion the
releases constitute a public health or environmental emergency
and no other person with the authority and capability to respond
will do so in a timely manner.
House amendment—Section 118(a) prohibits the Administrator
from responding to releases from (1) residential or business or com-
munity structures not used for certain hazardous waste activities;
(2) public water supplies due to deterioration of the system through
normal use; (3) certain coal mining activities; and (4) certain natu-
rally occurring substances. The Administrator may respond, howev-
er, if the release constitutes a major public health or environmen-
tal emergency.
Conference substitute—The conference substitute adopts the
Senate provision.
SUBSECTION (d)—COORDINATION OF INVESTIGATIONS
Senate amendment—The Senate bill contains no amendment to
section 104(b) requiring notice to natural resource trustees.
House amendment—Section 104(d) of the House amendment adds
a new paragraph (2) to section 104(b) that directs the Administrator
to promptly notify the appropriate Federal and State natural re-
sources trustees of potential damages to natural resources resulting
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from releases under investigation pursuant to section 104 and to
seek to coordinate the assessments, investigations and planning
under section 104 with such Federal and State trustees.
Conference substitute—The conference substitute adopts the
House provision, changing "Administrator" to "President" to con-
form to the agreement on the use of the term "Administrator".
SUBSECTION (e)—INITIAL OBLIGATION OF FUND
Senate amendment—Section 113(a) proposes to extend the time
limit for initial response actions in section 104(c)(l) from six
months to one year, and to provide that the limits on initial re-
sponse actions would not apply where continued response is other-
wise appropriate and consistent with permanent remedy.
House amendment—Section 104(e) raises the limits on response
actions in section 104(c)(l) of current law from $1 million dollars or
6 months to $2 million dollars or 12 months, respectively. The
House provision also provides that the time and monetary limits on
removal actions will not apply where the President determines
that continued response action is otherwise appropriate and con-
sistent with the remedial action to be taken.
Conference substitute—The conference substitute adopts the
House provision.
SUBSECTION (f)—FACILITIES OWNED AND OPERATED BY STATES
Senate amendment—The Senate provision (section 115) modifies
section 104(c)(3)(C)(ii) to specify that the 50 percent cost-sharing re-
quirement (or such greater amounts as the President may deter-
mine appropriate) for response actions at facilities owned by a
State or political subdivision at the time of any disposal of hazard-
ous substances therein includes facilities that are operated by the
State or political subdivision either directly or through a contrac-
tual relationship or otherwise. For the purposes of this provision,
the term "facility" does not include navigable waters or the beds
underlying those waters. Section 115 of the Senate bill also con-
tains a second paragraph relating to State reimbursements for cer-
tain costs of remedial actions at facilities owned but not operated
by the State.
House amendment—The House amendment contains no compara-
ble provision,
Conference substitute—The conference substitute adopts the
Senate provision relating to the 50 percent cost-sharing require-
ment for response actions at facilities operated by a State.
SUBSECTION (g)—CROSS REFERENCE TO CLEANUP STANDARDS
Senate amendment—The Senate amendment contains no cross-
reference to cleanup standards in section 104(c)(5).
House amendment—Section 104(h) proposes to modify section
104(cX5) of CERCLA, as redesignated, to direct the Administrator
to select remedial actions to carry out section 104 in accordance
with section 121 of this Act (relating to cleanup standards).
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Conference substitute—The conference substitue adopts the
House provision, but retains the current designation of the para-
graph as section 104(c)(4).
SUBSECTION (h)—STATE CREDITS
Senate amendment—Section 114 amends the last sentence of sec-
tion 104(c)(3) by directing the President to credit States for
amounts expended or obligated by the State or its political subdivi-
sions after January 1, 1978, and before December 11, 1980, for any
response costs covered by section lll(a) (1) or (2) and incurred at a
facility or release listed pursuant to section 105(8). The Senate pro-
vision also authorizes the President to enter into cooperative agree-
ments with the States under which the States will take response
actions in connection with the releases listed pursuant to section
105(8)(B). Finally, the Senate amendment directs the President to
credit certain response costs incurred by States.
House amendment—Section 104(g) directs the Administrator to
grant credits to States against the share of the costs for which they
are responsible under section 104(c)(3) for amounts expended by the
States pursuant to agreements with EPA for remedial actions at fa-
cilities listed on the NPL. The provision also authorizes credits for
expenses of certain remedial actions incurred before the listing of
the facility on the NPL or before entry into the contract or cooper-
ative agreement with EPA. Also authorized are credits for funds
expended between 1978 and 1980 for cost-eligible response actions
and claims for damages compensable under section 111, and certain
State expenses after December 11, 1980 but before enactment of
this Act. The provision authorizes the Administrator to require
prior approval for expenditures made after the date of enactment
as a condition of granting credit under section 104(c)(4), and ad-
dresses the use of credits to reduce all or part of the share of costs
otherwise required to be paid by a State under paragraph (3).
Conference substitute—The conference substitute adopts the
House amendment, as modified by deleting section 104(cX4XC) of
the amendment relating to administrative expenses and redesignat-
ed the provision as section 104(c)(5).
Entry into cooperative agreements is within the discretion of the
President. State expenditures of funds qualifying for credit towards
a State share do not create any entitlement in that State to the
Federal share of costs for that facility or any. other facility. Noth-
ing in this provision shall require the President to set aside or ear-
mark funds for expenditures in any particular State to satisfy
these credit provisions.
Under section 104 the President, acting through the Environ-
mental Protection Agency or any Federal agency acting pursuant
to an agreement with the Environmental Protection Agency (such
as the Corps of Engineers), can fund multi-year remedial projects
on an annual basis after obligating the entire cost of implementing
the Record of Decision. In such a case the State may transfer the
funds that it has committed to the project on an incremental basis,
and be credited with interest earned prior to actual application of
the funds as work progresses.
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SUBSECTION (i)—TREATMENT OF CERTAIN ACTIVITIES AS MAINTENANCE
OR REMEDIAL ACTION
Senate amendment—Section 117 specifies that, for the purposes
of section 104(c)(3), completed remedial actions in the case of
ground or surface water contamination include the completion of
treatment or other measures, whether onsite or offsite, necessary
to restore ground or surface water quality to a level that assures
protection of human health and the environment. The operation of
such measures for a period of up to five years after the construc-
tion and installation of the operation shall be considered remedial
action, whereas activities required to maintain the effectiveness of
such measures following that period or the completion of the reme-
dial action, whichever is earlier, shall be considered operation or
maintenance. At such time as the dedicated tax under title V, or
revenues derived therefrom, cease to be available due to termina-
tion, expiration or repeal of such tax, sums recovered or recover-
able under section 107 shall be available for operation and mainte-
nance.
House amendment—Section 104(i) proposes a new paragraph (6)
to section 104(c) of CERCLA specifying that, in the case of ground-
water or surface water contamination, completed remedial action
includes the treatment or other measures, whether taken onsite or
offsite, that are necessary to restore groundwater and surface
water quality to a level that assures protection of human health
and the environment. Actions required to maintain such measures
following the completion of the remedial action shall be considered
maintenance.
Conference substitute—The conference substitute adopts the
Senate provision, modifying from five years to ten years the period
during which time the activities are to be considered part of the
remedial action.
SUBSECTION (j)—RECONTRACTING
Senate amendment—Section 113(b) provides that nothing in the
Act shall limit the President from taking such action as may b°
necessary to assure continuous remedial action or to institute in-
terim remedial action when it becomes necessary to reopen bidding
or otherwise recontract for further performance of the remedial
action.
House amendment—The House amendment contains no provision
on recontracting.
Conference substitute—The conference substitute provides a new
paragraph (8) to section 104(c) of CERCLA that authorizes the
President to undertake or continue whatever interim remedial ac-
tions the President determines are appropriate to reduce risks to
public health or the environment where the performance of a com-
plete remedial action requires recontracting because of the discov-
ery of sources, types or quantities of hazardous substances not
known at the time of entry into the original contract. These inter-
im actions, however, may not exceed $2 million dollars.
This provision clarifies the President's existing authority to re-
spond to releases of hazardous substances under section 104, al-
though the $2 million cap on interim responses pending recontract-
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ing is a new restriction. The provision is intended to address situa-
tions like the Re-solve Site at North Dartmouth, Massachusetts.
SUBSECTION (k)—SITING
Senate amendment—The Senate amendment amends section
104(c) by adding a new paragraph providing that, effective three
years after enactment, the President shall not provide any remedi-
al actions pursuant to section 104 unless the State provides assur-
ances that there will be adequate capacity and access to facilities
in compliance with the hazardous waste regulatory program under
subtitle C of the Solid Waste Disposal Act for the treatment or dis-
posal of all that State's hazardous wastes for the next twenty
years.
House amendment—Section 104(f) of the House amendment modi-
fies section 104(cX3) of CERCLA by adding an additional require-
ment that States assure the Administrator of the availability of
hazardous waste treatment or disposal facilities that (1) have ade-
quate capacity to accommodate the hazardous wastes that are ex-
pected to be generated within the State within the 20-year period
following the date of a contract or cooperative agreement with the
Administrator; (2) are within the State or outside the State in ac-
cordance with an interstate agreement or regional agreement; (3)
are acceptable to the Administrator; and (4) are in compliance with
subtitle C of the Solid Waste Disposal Act.
Conference substitute—The conference substitute adopts the vir-
tually identical House and Senate provisions requiring States to
provide assurances to the President of the availability of hazardous
waste treatment or disposal facilities with adequate capacity to ac-
commodate the wastes expected to be generated within the State.
The reference to "hazardous wastes" in this siting requirement is
intended to cover all hazardous wastes generated within the State,
not only Superfund wastes generated by response or remedial ac-
tions undertaken within the State.
SUBSECTION (1)—COOPERATIVE AGREEMENTS WITH STATES
Senate amendment—Section 119 authorizes the President to
enter into a contract or cooperative agreement with any State or
political subdivision which has the capability to carry out any or
all of the actions authorized under section 104, as determined by
the President to take such actions in accordance with section
105(8). Such cooperative agreements may reimburse State or politi-
cal subdivisions from the Fund for reasonable response costs or re-
lated activities, as enumerated in the Senate provision. Any con-
tract or cooperative agreement is subject to the cost-sharing re-
quirements of section 104(c).
House amendment—Section 104(j) modifies section 104(d)(l) of
CERCLA to provide that, where the Administrator determines that
a State or political subdivision has the capability to conduct any or
all actions authorized by section 104 in accordance with section
105(a)(8) and carry out related enforcement actions, the Adminis-
trator may enter into a contract or cooperative agreement with the
State or political subdivision to carry out such actions. The provi-
sion directs the Administrator to make such determinations within
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90 days after the Administrator receives an application for such an
agreement from a State or political subdivision. The provision fur-
ther specifies that any State which expended funds between Sep-
tember 30, 1985, and the date of enactment of this bill for response
actions at any site included on the NPL and subject to a coopera-
tive agreement under the Act shall be reimbursed for the share of
costs of such actions for which the Federal government is responsi-
ble.
Conference substitute—The conference substitute adopts the
House provision with the addition of Indian tribes to section
104(d)(l), as amended. A decision by the President to enter into a
contract or cooperative agreement is within the discretion of the
President. Included within the class of activities that may be the
subject of cooperative agreements under this provision are those ac-
tivities associated with the overall implementation, coordination,
enforcement, training, community relations, site inventory and as-
sessment efforts, and administration of remedial activities as au-
thorized by this Act.
SUBSECTION (m)(l)—INFORMATION-GATHERING AND ACCESS
AUTHORITIES
Senate amendment—Section 120 proposes four new paragraphs to
section 104(e) pertaining to access and information-gathering. Para-
graph (1) authorizes any authorized representative of the President
or a State to require any person to disclose information relevant to
the identity and nature of materials at a facility or the nature and
extent of a release or threatened release from the facility where
there is reason to believe that there may be a release or a threat-
ened release of a hazardous substance from that facility. In addi-
tion, the paragraph requires the person to provide reasonable
access to the authorized representative to inspect or copy all docu-
ments and records pertaining to such matters. The paragraph also
authorizes access to certain establishments or other places or prop-
erties to inspect and obtain samples under certain conditions.
Paragraph (2) provides the terms and conditions under which the
President may compel compliance with such a request for access or
information. Paragraph (2) also directs courts to compel compliance
with this paragraph where there is a reasonable basis to believe
that there is a release or threatened release of a hazardous sub-
stance unless, under the circumstances, the demand for access or
information is arbitrary and capricious, an abuse of discretion or
otherwise not in accordance with law. The provision authorizes up
to & $10,000 civil penalty against any person who unreasonably
fails to comply with the provision of paragraph (1) or an order
issued under paragraph (2).
Paragraph (3) contains a "savings" clause, while paragraph (4)
details provisions relating to the terms and conditions for entry to
locations and access to information properly classified to protect
the national security. Paragraph (5) details the requirements appli-
cable to any person who claims that the information sought is enti-
tled to protection under this section.
Paragraph (6) outlines the types of information that will not be
entitled to protection from disclosure under this section.
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House amendment—Section 104(k) proposes to modify section
104(e) of CERCLA by redesignating paragraph (2) as paragraph (8)
and by adding new subsections 104(e)(l)-(7) relating to information-
gathering and access. Paragraph (e)(D authorizes any duly author-
ized representative of the Administrator to exercise the authorities
under paragraphs (2), (3), or (4) of this subsection in accordance
with certain enumerated restrictions. Any duly designated State of-
ficial under a cooperative agreement or contract may use the au-
thorities in paragraphs (2) through (4). Paragraph (2) authorizes
access to information or documents described in three subpara-
graphs pertaining, in general, to the nature and quantity of materi-
als at the vessel or facility, the nature or extent of the release from
the vessel or facility, and other information relating to the ability
of a person to pay for or perform a cleanup. The paragraph also
authorizes access at all reasonable times to inspect or copy the doc-
uments relevant to such matters. When the authorized representa-
tive requests copies of documents as authorized by this action, the
person with such documents must either provide the copies or fur-
nish the documents themselves for copying. Paragraph (3) pertains
to entry, authorizing an officer or employee of the Administrator
or State to enter certain vessels or facility enumerated within the
paragaph. Paragraph (4) pertains to inspections and samples, au-
thorizing any duly authorized representative of the Administrator
or State to inspect and obtain samples from any vessel, facility or
other location described in the paragraph. The paragraph requires
that a copy of the results of any analysis of samples taken pursu-
ant to the paragraph shall be furnished to the owner, operator,
tenant, or other person in charge of the location from which the
samples were obtained. Paragraph (5) outlines the authorities of
the Administrator to issue compliance orders and to request the
Attorney General to commence civil actions to compel compliance
with such orders or requests for information or access pursuant to
this section. Where there is a reasonable basis to believe that a re-
lease or threat of release may occur, the paragraph describes the
actions a court shall order in any civil action to compel compliance.
The paragraph authorizes a civil penalty not to exceed $25,000 for
each day of noncompliance. Paragraph (6) includes a savings clause
that clarifies that the subsection is not intended to preclude the
Administrator from securing access or obtaining information in
any other lawful manner, whereas paragraph (7) requires appropri-
ate clearances for any officers or representatives of the Administra-
tor to gain entry to locations and access to information properly
classified to protect the national security.
Conference substitute—The conference substitute adopts the
House language with the following modification. First, in para-
graph (5)(B) (i) and (ii), the conference substitute includes the
Senate language specifying that a court shall not take action where
under the circumstances of the case the demand for access or infor-
mation is arbitrary and capricious, an abuse of discretion or not
otherwise in accordance with law. Secondly, paragraph (e)(7), relat-
ing to clearance, has been deleted.
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SUBSECTION (m)(2)—BASIS FOR WITHHOLDING INFORMATION
Senate amendment—Section 120 proposes to add new paragraphs
(5) and (6) to section 104(e) of CERCLA. Paragraph (5) details the
terms and conditions under which a person required to provide in-
formation or documents under the Act may claim that the informa-
tion is entitled to protection from disclosure. The Senate bill would
require the person claiming such protection to show, at the time
the claim is made, that the information is entitled to protection on
the basis of certain criteria.
House amendment—The House amendment contains no amend-
ment to section 104 relating to the basis for withholding informa-
tion.
Conference substitute—The conference substitute adds two new
subparagraphs (E) and (F) to section 104(eX8) of CERCLA relating
(1) to the basis for withholding information and (2) to information
not entitled to protection under the section. The first subparagrpah
conforms to the conference agreement in title III, relating to Emer-
gency Planning and Community Right-to-Know. The second sub-
paragraph is derived from the Senate provision with certain modi-
fications.
SUBSECTION (n)—ACQUISITION OF PROPERTY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section 104(n) proposes to add a new subsec-
tion to section 104 authorizing EPA to acquire by purchase, lease,
condemnation, or otherwise any real property or interest in real
property that the Adminstration determines is needed to conduct a
remedial action under this Act during the remedial action itself or
prior to it in conjunction with an investigation or removal action.
The decision of the Administrator under this provision is discre-
tionary. The provision allows the Administration to acquire such
interest in real estate only if the State in which the interest is to
be acquired assures the Administrator that the State will accept
transfer of the interest following completion of the remedial action.
The provision also provides that no Federal, State, or local govern-
ment agency shall be liable under this Act solely as a result of ac-
quiring an interest in real estate under this subsection. This provi-
sion does not limit the President's existing authority to acquire
real property by purchase, lease or condemnation when necessary
to carry out response actions authorized by section 104.
Conference substitute—The conference substitute adopts the
House provision. If the President obtains access to property under
section 104(e) to effectuate a response and the President determines
that the response will result in the taking of private property, the
President will exercise the property acquisition authority provided
under this amendment to section 104. In addition, even if this au-
thority is not exercised, persons who believe that their property
has been taken by response action may seek compensation under
the Tucker Act, 28 U.S.C. 1491.
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SECTION 105—NATIONAL CONTINGENCY PLAN
Senate amendment.—The Senate amendment requires the Presi-
dent to revise the National Hazardous Substance Response Plan
not later than twelve months after the date of enactment of these
amendments to provide procedures and standards for remedial ac-
tions undertaken pursuant to CERCLA which are consistent with
the amendments made by this Act.
This amendment requires the President by rule, not later than
twelve months after the date of enactment of these amendments, to
promulgate amendments to the Hazard Ranking System in effect
on September 1, 1984. These amendments shall assure to the maxi-
mum extent feasible, the Hazard Ranking System accurately as-
sesses the relative degree of risk to human health and environment
posed by sites and facilities subject to review. These amendments
shall take effect as of the date established by the President, not
later than eighteen months after the enactment of the Superfund
Amendments of 1984. The amended Hazard Ranking System shall
be applied to any site or facility to be newly listed on the National
Priority List after the effective date of the amendments. The
Hazard Ranking System in effect on September 1, 1984, shall con-
tinue in full force and effect until the new regulations are in effect.
The Senate amendment eliminates the requirement that the Na-
tional Contingency Plan include at least 400 facilities and clarify
that States are allowed only one highest priority designation for
the life of the list. The Senate amendment adds a new requirement
to include standards and testing procedures by which alternative or
innovative treatment technologies are appropriate for utilization in
response actions.
House amendment.—The House amendment requires the Admin-
istrator within 18 months of the date of enactment to revise the
National Contingency Plan to reflect the amendments made by this
legislation.
The House amendment requires the Administrator to commence
a review of the Hazard Ranking System (HRS or "Mitre Model")
used to evaluate the priorities attached to Superfund sites not later
than 12 months after the enactment of the Superfund Amendments
of 1986. In conducting the review, the President shall ensure that
the human health risks associated with contamination or potential
contamination of surface water used for recreation or potable
water consumption is appropriately assessed.
The House amendment provides that in conducting the Hazard
Ranking System review, the Administrator must evaluate the pre-
liminary pollutant limit value system used by the Department of
Defense and compare it with the Hazard Ranking System.
The House amendment explicitly provides that the Administra-
tor is not required to reevaluate after enactment of this Act the
hazard ranking of any facility which was evaluated in accordance
with the criteria under section 105 of CERCLA before such enact-
ment.
The House amendment establishes the right of any person to pe-
tition the Administrator to conduct a preliminary assessment of
the hazards to public health and the environment which are associ-
ated with a release or threatened release of a hazardous substance,
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pollutant or contaminant. Within 12 months, the Administrator
must complete such assessment or explain why such an assessment
is not appropriate. If the preliminary assessment indicates that any
such release may pose a threat to human health or the environ-
ment, the Administrator must promptly evaluate the release for
possible inclusion on the National Priorities List.
The House amendment adds new criteria to the current law to
be used in determining priority facilities: the damage to natural re-
sources which may affect the human food chain and the contami-
nation or potential contamination of the ambient air which is asso-
ciated with a release or threatened release.
The House amendment also adds a new requirement to include
standards and testing procedures by which alternative or innova-
tive treatment technologies are appropriate for utilization in re-
sponse actions.
The House amendment adds a new requirement that whenever
there has been a significant release of a hazardous substance or
pollutants and contaminants from a site which is listed by the
President as a site cleaned up on the National Priorities List, the
site shall be restored to the National Priorities List without appli-
cation of the Hazard Ranking System.
The House amendment requires the Administrator to consider
the availability of qualified minority firms. The Administrator
shall describe, as part of any annual report submitted to the Con-
gress under CERCLA, the participation of minority firms.
The House amendment allows the States to place only one high-
est priority site on the National Priorities List and deletes the re-
quirement in current law that the National Priorities List contain
no fewer than 400 sites to the extent practicable.
Conference substitute—The conference substitute adopts provi-
sions from both the House and Senate amendments. The confer-
ence substitute adopts the Senate amendment requiring the Presi-
dent to revise the National Contingency Plan, changing 12 months
to 18 months. To the extent there is an inconsistency between the
current National Contingency Plan, including the National Haz-
ardous Substance Response Plan, and the provisions or require-
ments of the Superfund Amendments and Reauthorization Act,
this Act supersedes and controls as of the date of enactment.
The conference substitute adopts the Senate amendment requir-
ing the President to promulgate, by rule, amendments to the
Hazard Ranking System in effect to assure, to the maximum extent
feasible, that the Hazard Ranking System accurately assesses the
relative degree of risk to human health and environment posed by
sites and facilities subject to review. The promulgation date is
changed from 12 months after enactment of these amendments to
18 months and changing the effective date of these amendments
from 18 months to 24 months.
This provision establishes a substantive standard for the Hazard
Ranking System that, to the degree feasible, it accurately assesses
relative risks to human health and the environment. This standard
is to be applied within the context of the purpose for the National
Priorities List; i.e., identifying for the States and the public those
facilities and sites which appear to warrant remedial actions. (See
"Report of the Committee on Environment and Public Works,"
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Senate Report No. 96-848, 96th Cong., 2d Sess. 60 (1980).) This
standard does not, however, require the Hazard Ranking System to
be equivalent to detailed risk assessments, quantitative or qualita-
tive, such as might be performed as part of remedial actions. The
standard requires the Hazard Ranking System to rank sites as ac-
curately as the Agency believes is feasible using information from
preliminary assessments and site inspections, such as ground or
surface water, or air monitoring data or the equivalent information
and identification of potentially and actually contaminated water
supplies or sensitive environments. Meeting this standard does not
require long-term monitoring or an accurate determination of the
full nature and extent of contamination at sites or the projected
levels of exposure such as might be done during remedial investiga-
tions and feasibility studies. This provision is intended to ensure
that the Hazard Ranking System performs with a degree of accura-
cy appropriate to its role in expeditiously identifying candidates for
response actions.
The review of the Hazard Ranking System needs to adequately
consider the quantity, toxicity, and concentrations of hazardous
constituents, which are present in any release, or threatened re-
lease; the extent of actual release and the potential for release of
such hazardous constituents; and the exposures presented, or likely
to be presented, to human populations and the environment, by the
release or threatened release of such hazardous constituents!
through various routes of exposure.
Neither the revised Hazard Ranking System required by this sec-
tion nor any other provision of law or regulation requires the con-
duct of risk assessments at unlisted or listed facilities.
The conference substitute adopts the House amendment requir-
ing the President to ensure that the human health risks associated
with contamination or potential contamination of surface water
used for recreation or potable water consumption is appropriately
assessed.
In conducting the review under this section, the Administrator
shall evaluate the preliminary pollutant limit value system used by
the Department of Defense to assess the risks of hazardous sub-
stances and compare such system with the Hazard Ranking
System. In particular, the Administrator should study the effective-
ness of each system in appropriately assessing the relative degree
of risk to human health and the environment posed by facilities
subject to each such system.
The President in conducting the review required by this provi-
sion should include the following items:
(1) an explanation of the Hazard Ranking System, including
the manner in which it was developed and the method of de-
termining the relative hazard at different facilities under the
system;
(2) a determination of the relationship between the value de-
termined for a facility under the Hazard Ranking System and
the potential danger to human health and the environment;
(3) an examination, based on the determination under clause
(2), of the effect of establishing a threshold value of 28.5 for fa-
cilities to be included on the National Priorities List;
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(4) a determination based upon the determination under
clause (2) and the examination under clause (3), of whether a
new threshold value should be established for inclusion of fa-
cilities on such list; and
(5) a determination of the relationship between the value de-
termined for a facility under the Hazard Ranking System and
the types of remedial actions that are appropriate at such facil-
ity.
The conference substitute adopts the Senate amendment which
provides that until the effective date of regulations revising the
Hazard Ranking System, the system in effect on September 1, 1984,
continues in full force and effect.
The conference substitute adopts the House amendment, as modi-
fied, which provides that the President is not required to reevalu-
ate the hazard ranking of any facility which was evaluated in ac-
cordance with the criteria under section 105 of CERCLA before the
effective date of the amendments to the Hazard Ranking System
contemplated by this section.
The conference substitute adopts the House amendment estab-
lishing the right of any person to petition the President to conduct
a preliminary assessment of the hazards to public health and the
environment which are associated with a release or threatened re-
lease of a hazardous substance, pollutant or contaminant.
The conference substitute adopts the House amendment adding a
new criterion to the current law to be used in determining priority
facilities: the damage to natural resources which may affect the
human food chain and the contamination or potential contamina-
tion of the ambient air which is associated with a release or threat-
ened release.
The conference substitute adopts the House amendment which is
similar to the Senate amendment deleting the requirement in the
current law that the National Priorities List contain no fewer than
400 sites.
The conference substitute adopts the House amendment regard-
ing the use of alternative and innovative technology.
The conference substitute adopts the House amendment requir-
ing the relisting of sites on the National Priorities List without ap-
plication of the Hazard Ranking System 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."
The conference substitute adopts the House amendment requir-
ing the President to consider the availability of qualified minority
firms.
SUBSECTION (g)—SPECIAL STUDY WASTES
Senate amendment—The Senate amendment to section 105 pro-
vides that, until the Hazard Ranking System is revised, special
study waste sites described in section 3001(b)(2XB) or (3XA) of the
Solid Waste Disposal Act may be listed on the National Priorities
List only if the Administrator makes findings based on facility-spe-
cific data. Liability for costs, damages, or penalties may only be im-
posed if specific findings have been made and the Administrator
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supports those findings in court. Following completion of the study
and determinations required by the Solid Waste Disposal Act, if a
special study waste is not a hazardous waste listed under section
3001 of the Solid Waste Disposal Act, the waste stream, or one of
the constituents thereof, may not be deemed to be a hazardous sub-
stance unless such waste, at the facility in question, has one of the
characteristics identified under or listed pursuant to section 3001 of
the Solid Waste Disposal Act.
House amendment—The House amendment contains a provision
which applies only to fly-ash and other wastes described in section
3001(b)(3)(A)(i).
The Administrator is required to revise the Hazard Ranking
System (HRS) as it applies to facilities that contain substantial vol-
umes of fly-ash and other wastes discussed in section 3001(b)(3)(A)(i)
of the Solid Waste Disposal Act that relate to the combustion of
coal or other fossil fuels in a manner which assures appropriate
consideration of site-specific characteristics of such facilities.
Prior to the completion of the required revision of the Hazard
Ranking System, the Administrator may not add to the NPL any
facility that contains waste described in section 3001(b)(3)(A)(i) of
the Solid Waste Disposal Act on the basis of an evaluation relying
principally on the volume of such waste and not on the actual con-
centrations of the hazardous constitutents of such waste. Nothing
in this section affects EPA's authority to list or take other actions
under the Act at facilities based upon the presence of substances
other than waste described in section 3001(b)(3)(A)(i).
Conference substitute—The conference substitute adds a new pro-
vision to section 105 dealing with special study wastes other than
wastes described in section 3001(b)(3)(A)(i) of the Solid Waste Dis-
posal Act.
Pending revision of the Hazard Ranking System, the President
must consider certain factors in adding facilities at which special
study wastes described in paragraphs (2), (3)(AXii) or (3XA)(iii) of
section 3001(b) of the Solid Waste Disposal Act are present in sig-
nificant quantities. Facilities included on, or proposed for inclusion
on, the National Priorities List are not subject to this provision.
The President must only consider available information.
In the course of determining whether to add facilities containing
special study wastes to the NPL in the interim period, if the Presi-
dent has sampling data from past or present on-site or off-site ex-
amination of the facility or releases from the facility available, he
shall consider it.
Neither the revised Hazard Ranking System required by this sec-
tion nor any other provision of law or regulation requires the con-
duct of risk assessments at unlisted or listed facilities.
Nothing in this amendment affects or otherwise limits the Presi-
dent's authority under this Act to conduct response or enforcement
actions (including abatement actions under section 106(a)).
SECTION 106—REIMBURSEMENT
Senate amendment—Section 144 of the Senate amendment con-
tains a provision that amends section 106(b) of CERCLA to author-
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ize the reimbursement of potentially responsible parties for re-
sponse costs under certain circumstances.
House amendment—Section 113 of the House amendment con-
tains a provision on reimbursement comparable to that set forth in
the Senate amendment. The House amendment is also drafted as
an amendment to section 106(b) of CERCLA.
Conference substitute—The conference substitute adopts new sec-
tion 106(b)(2) of CERCLA as set forth in the House amendment,
with modifications. This new provision authorizes reimbursement
for certain parties and the procedures for obtaining such reim-
bursement.
SECTION 107—LIABILITY
FOREIGN VESSELS
Senate amendment—The Senate amendment amends sections
107(aXl) to strike "(otherwise subject to the jurisdiction of the
United States)," making it clear that liability under CERCLA ap-
plies to releases from foreign vessels.
House amendment—The House amendment contains an identical
provision.
Conference substitute—The conference substitute adopts the iden-
tical provisions of both bills.
COSTS AND DAMAGES
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment amends section
107(a) to clarify that all costs incurred by the United States or a
State under section 104(b) and the costs of any health assessment
or health effects study carried out under the expanded health au-
thorities provisions, are recoverable costs under section 107. In ad-
dition, the House amendment provides that amounts recoverable
under section 107 include interest accruing from 90 days after the
date on which an action for recovery of such amounts is filed. The
rate of interest is the same as that for investments of the Fund.
Conference substitute—The conference substitute amends section
107(a) to clarify that the costs of any health assessment or health
effects study carried out under section 104(i) are recoverable costs
under section 107. The reference to section 104(b) costs in the
House amendment was deleted, since such costs are defined as
costs of response in current law. The conference substitute provides
that amounts recoverable under section 107 include interest accru-
ing from the later of the date payment is demanded in writing or
the date of the expenditure concerned. The rate of interest is the
same as that for investments of the Fund.
EMERGENCY RESPONSE ACTIONS
Senate amendment—The Senate amendment adds a new para-
graph to section 107(d) providing that State and local governments
are not liable under this Act for non-negligent actions taken in re-
sponse to an emergency created by the release of a hazardous sub-
stance generated by, or from a facility owned by, another person.
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House amendment—The House amendment strikes "damages" in
section 107(d), inserting "costs and damages," and adding a sen-
tence clarifying that this subsection does not affect the liability of
a potentially responsible party who subsequently undertakes a re-
sponse action. A new paragraph is added, providing that Federal,
State, and local government agencies are not liable under this Act
for non-negligent actions taken in response to an emergency cre-
ated by the release of a hazardous substance from a vessel, facility.,
or site owned by another person. A person retained or hired by a.
State to take any emergency response action is treated the same as
the State.
Conference substitute—The conference substitute amends section
107(d) to provide that a person will not be liable under this Act for
their non-negligent actions taken or omitted in the course of ren-
dering care, assistance, or advice in accordance with the NCP or at
the direction of an on-scene coordinator. A new paragraph is added,
providing that State and local governments are not liable under
this Act (other than for costs or damages due to gross negligence or
intentional misconduct) for actions taken in response to an emer-
gency created by the release of a hazardous substance generated
by, or from a facility owned by, another person. Another new para-
graph clarifies that this subsection does not apply to or alter the
liability of any potentially responsible party who is otherwise cov-
ered by section 107(a).
The conference substitute retains the scope of the Senate version
on the types of releases to which subsection (d)(2) applies. Subsec-
tion (d)(2) applies not only to emergency actions in response to re-
leases or threatened releases of hazardous substances from a facili-
ty owned by a person other than a State or local gc/vernment, but
also to such actions concerning releases of a hazardous substance
fenerated by a person other than a State or local government. If a
tate or local government nonnegligently causes damage in re-
sponding to an emergency arising out of the release of a hazardous
substance generated by another person at a site which it controls
through bankruptcy or other involuntary acquisition, it will not be
liable under this section even though it is considered an "owner" of
the facility because it has contributed to the release or threatened
release from the facility in the course of responding to the emer-
gency.
NATURAL RESOURCES
Senate amendment—The Senate amendment amends section
107(f) to relocate and modify the provisions of sections lll(h) of
current law. Under new section 107(0(2), the President shall desig-
nate in the NCP the Federal officials to act as trustees and to
assess natural resource damages for the purposes of this Act and
section 311 of the Clean Water Act. Such Federal trustees may, at
the request of a State, assess natural resource damages for a State.
Subsection (f)(2)(B) clarifies that the Governor may designate State
officials to act as trustee and assess natural resource damages for
natural resources under State trusteeship. Any determination or
assessment of damages to natural resources made by a Federal or
State trustee in accordance with the regulations promulgated in ac-
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cordance with section 301(c) of the Act have the force and effect of
a rebuttable presumption on behalf of the trustee in any adminsi-
trative or judicial proceeding under this Act or section 311 of the
Clean Water Act. The President is required to promulgate the reg-
ulations required under section 301(c) of CERCLA not later than
six months after enactment.
House amendment—The House amendment amends section 107(f)
to relocate and modify the provisions of sections lll(h) of current
law. Under new section 107(f)(2), the Federal officals designated to
act as trustees under the NCP are to assess natural resource dam-
ages for the purposes of this Act and section 311 of the Clean
Water Act. Such Federal trustees may, at the request of a State,
assess natural resource damages for a State. Subsection (f)(2)(B)
clarifies that the Governor may designate State officials to act as
trustee and assess natural resource damages for natural resources
under State trusteeship. Any determination or assessment of dam-
ages to natural resources made by a Federal or State trustee in ac-
cordance with the regulations promulgated in accordance with sec-
tion 301(c) of the Act have the force and effect of a rebuttable pre-
sumption on behalf of the trustee in any administrative or judicial
proceeding under this Act or section 311 of the Clean Water Act.
Section 107(f)(l) (as redesignated by this amendment) is amended to
authorize the Administrator to retain, without further appropria-
tion, sums recovered by the United States as trustee, and use such
sums to restore, replace, or acquire the equivalent of injured natu-
ral resources.
Conference substitute—The conference substitute adopts the
Senate amendment to section 107(f)(2) and the House amendment
to section 107(f)(l), modifying it so that the trustee, rather than the
Administrator, retains the recovered funds for use without further
appropriation. A trustee may use recovered funds retained under
this provision to defray costs expended for damage assessment. In
addition, section 107(f) is amended to clarify that there can be no
double recovery for the same money damages under this subsec-
tion. The conference substitute adopts the Senate provision that di-
rected the President to promulgate the regulations for assessing
damages to natural resources under section 301 of CERCLA not
later than six months after enactment, but relocates it as an
amendment to section 301 itself. The deadline established by these
amendments differs from that currently imposed by the court in
New Jersey v. Ruckelshaus, Civil Action No. 84-1668 (JWB)
(D.C.N.J. 1984), solely for the purpose of allowing additional time, if
necessary, for re-proposal of regulations required by section 301(c)
should those initially submitted to the court be inadequate. While
acknowledging the failure of the President to promulgate those reg-
ulations, this amendment does not sanction that failure or any fur-
ther delay unless it is essential to assure the adequacy of the regu-
lations. The court is to retain jurisdiction in New Jersey v. Ruckels-
haus to assure compliance with not only this new provision of law,
but that of the original requirement as well. Regulations were pro-
posed under this section in December, 1985, and it may be neces-
sary to repropose this regulation to come into conformity with the
provisions of section 301(c) and the amendments to section 107(0.
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FEDERAL LIEN
Senate amendment—The Senate amendment amends section 107
to provide that all costs and damages for which a person is liable to
the United States under this section shall constitute a lien in favor
of the United States on all real property and related rights subject
to or affected by a response action. Such costs may be recovered in
an action in rem in Federal district court.
House amendment—The House amendment amends section 107
to provide that all costs and damages for which a person is liable to
the United States under this section shall constitute a lien in favor
of the United States on all real property and related rights subject
to or affected by a response action. All costs and damages for which
the owner or operator of a vessel is liable to the United States
under this section 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 Federal district court.
Conference substitute—The conference substitute adopts the
House provision.
SECTION 108—FINANCIAL RESPONSIBILITY
Senate amendment—The Senate amendment designates accepta-
ble alternative methods of establishing financial responsibility and
authorizes the Administrator to specify policy or other contractual
terms; sets out defenses available in case of direct action against an
insurer arising out of a claim authorized by section 107 or 111; es-
tablishes total liability under the Act of any guarantor and pro-
vides that nothing in this subsection shall be construed to limit any
other State or Federal statutory, contractual or common law liabil-
ity of a guarantor.
House amendment—The House amendment establishes a dead-
line for promulgation of financial responsibility regulations; desig-
nates acceptable alternate methods of establishing financial respon-
sibility and authorizes the Administrator to specify policy or other
contractual terms; amends the existing phase-in period for imposi-
tion of financial responsibility requirements; sets out defenses
available in case of direct action against an insurer arising out of
vessels and other facilities; establishes total liability under the Act
of any guarantor and provides that nothing in this subsection shall
be construed to limit any other State or Federal statutory, contrac-
tual or common law liability of a guarantor.
Conference substitute—The conference substitute adopts the
House provision with the following changes:
(1) Eliminates the deadline for promulgation of financial re-
sponsibility regulations.
(2) Substitutes the following for the provision regarding the
total liability of guarantors in a direct action:
The total liability of any guarantor in a direct action suit
brought under this section shall be limited to the aggregate
amount of the monetary limits of the policy of insurance, guar-
antee, surety bond, letter of credit, or similar instrument ob-
tained from the guarantor by the person subject to liability
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under section 107 for the purpose of satisfying the requirement
for evidence of financial responsibility.
SECTION 109—PENALTIES
Senate amendment—The Senate amendment increases existing
criminal penalties for various violations and further increases
criminal penalties for subsequent violations. In addition, it estab-
lishes administrative civil penalties for certain offenses, graduated
with increasing severity for subsequent violations. Administrative
civil penalties may be assessed after notice and an opportunity for
a hearing. District Court review of the penalty is on the record.
House amendment—The House amendment increases existing
civil and criminal penalties for various violations and establishes
civil penalties as supplements to some of the existing criminal pen-
alty provisions. In addition, several new violations are made sub-
ject to civil and criminal penalties. Civil penalties are to be as-
sessed and collected under procedures set forth in section 16 of the
Toxic Substances Control Act, which requires formal administra-
tive hearings and Court of Appeals review.
Conference substitute—The conference substitute combines provi-
sions from the House and Senate amendments to provide increased
penalties for civil and criminal violations of the law and to provide
new authority to assess civil penalties administratively. Monetary
fines for criminal violations will, as in the House amendment, be
as set forth in the uniform criminal code. The relevant sections of
the U.S. Code are currently located in title 18, sections 3623 and
3571. Potential imprisonment will be set at up to three years for
first offenses, as in the House amendment, and up to five years for
subsequent convictions, as in the Senate amendment. Civil penal-
ties of up to $25,000 per day, increasing up to $75,000 per day for
subsequent violations, may be assessed administratively or judicial-
ly. Penalties of up to $25,000 per violation may be assessed admin-
istratively after notice and an opportunity for a hearing, as set
forth in the Senate amendment. Judicial review of such a penalty
shall be in the district court and based on the record. Penalties of
up to $25,000 per day, increasing for subsequent violations, may be
assessed administratively after an opportunity for a formal Admin-
istrative Procedures Act hearing. Judicial review of such a civil
penalty shall be in the Court of Appeals for the District of Colum-
bia. For any given violation, the government must choose from
among the three approaches included in this section: informal ad-
ministrative process; formal administrative process; or judicial
process. A single violation shall not be subject to multiple civil pen-
alties. Civil penalties for failure to comply with information-gather-
ing and access authorities can only be assessed judicially.
The conference substitute provides for criminal penalties of three
years/five years for: failure to provide notice of releases under sec-
tion 103 or submission of information known to be false or mislead-
ing; destruction of records in violation of section 103; and, provid-
ing false information in claims against the fund under section 112.
Monetary fines are set according to the uniform criminal code pro-
visions of Title 18, United States Code, section 3623 (or 3571 if ap-
plicable) which provide automatic fines for all offenses. As in the
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House amendment, there may be an award of up to $10,000 for in-
formation leading to a conviction. Civil penalties apply for each of
the following: failure to provide notice of releases as required
under section 103 or submission of information under section 103
known to be false or misleading; destruction of records in violation
of section 103; failure to comply with section 108 financial responsi-
bility requirements; failure to comply with an order or request
under the information-gathering and access authorities of section
104; and, failure to comply with an order, decree or agreement
under section 122 (relating to settlements) or section 120 (relating
to Federal facilities), including interagency agreements under sec-
tion 120. The fine under section 106(b) is increased from $5,000 to
$25,000.
SECTION 110—HEALTH-RELATED AUTHORITIES
Senate amendment—The Senate amendment is drafted as an
amendment to section 104(i) of current law, which established the
Agency for Toxic Substances and Disease Registry (ATSDR).
Under the Senate amendment, ATSDR and EPA are jointly re-
quired to prepare a list of the hazardous substances most common-
ly found at Superfund sites. Within 6 months after enactment,
ATSDR must list at least 100 such substances. Within 24 months
after enactment, ATSDR must list at least 100 additional sub-
stances, and must list an appropriate additional number at least
once every year thereafter.
The Senate amendment then requires ATSDR to prepare toxico-
logical profiles on listed substances sufficient to establish the likely
effect of each substance on human health, and to revise the profiles
no less often than once every 5 years.
Where adequate information is not available on the health ef-
fects of a listed hazardous substance, the Senate amendment re-
quires the Administrator of ATSDR to assure the initiation of a
health effects research program. The Senate provision specifically
outlines what should be the basic elements of such a research pro-
gram, and requires that the Administrators of ATSDR and EPA co-
ordinate the research program with the National Toxicology Pro-
gram and with toxicological testing undertaken pursuant to the
Toxic Substances Control Act (TSCA) and the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA).
The Senate amendment expresses the sense of the Congress that
the costs of the research program shall be borne by the manufac-
turers and processors of the hazardous substance in question.
Where this is not possible, the Senate amendment establishes that
the costs of the research program are defined as a cost of response
under section 107 of this Act, so as to be recovered from parties re-
sponsible for the release of the hazardous substances.
The Senate amendment requires the Administrator of ATSDR to
perform a health assessment for each release, threatened release or
facility on the National Priorities List, and establishes a schedule
for the completion of such assessments. In addition, health assess-
ments are mandated for facilities under section 3019 of the Solid
Waste Disposal Act.
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The Senate amendment also establishes a process whereby indi-
viduals or physicians may petition the Administrator of ATSDR to
perform health assessments. In response to a petition, the Adminis-
trator of ATSDR must either initiate the health assessment or pro-
vide a written explanation of why one is not appropriate.
The Senate amendment describes a health assessment as includ-
ing preliminary assessments of the potential risk to human health
posed by individual sites and facilities, based on a number of fac-
tors, such as the nature and extent of the contamination, potential
pathways of human exposure and the size and potential susceptibil-
ity of the affected community. The assessment is also required to
include an evaluation of the health risks posed by all sources of the
contaminants in question, including known point or nonpoint
sources other than the subject site or facility, and to use appropri-
ate data available from the Administrator of EPA. The Senate
amendment further states that the purpose of a health assessment
is to aid in determining whether additional health studies and
medical evaluations need be undertaken.
Under the Senate amendment, the Administrator of ATSDR is
required, upon completion of a health assessment, to provide the
Administrator of EPA and the State concerned with the results of
the assessment, together with any recommendations for further
action which may be necessary at the facility.
The Senate amendment provides that the costs of performing a
health assessment may be recovered as a cost of response under
section 107 of this Act, where the assessment discloses exposure of
a population to a relase of hazardous substances.
The Senate amendment further directs the Administrator of
ATSDR to undertake pilot health effects studies and/or full-scale
epidemiological studies where, in the judgment of the Administra-
tor of ATSDR, such studies are appropriate based on the results of
the health assessment or other study. In cases where a health as-
sessment indicates a potential significant risk to human health, the
Senate amendment also requires the Administrator of ATSDR to
consider whether establishing a registry of exposed persons would
be useful, taking into account such factors as the seriousness of
identified diseases or the likelihood of population migration from
the affected area.
The Senate amendment requires the Administrator of \TSDR to
undertake a study and report to Congress on the usefulness of es-
tablishing a health surveillance program.
In the event that a health assessment or other study conducted
under section 104(i) identifies a significant health risk to individ-
uals exposed to hazardous substances, the Senate amendment re-
quires the President to take whatever steps may be necessary to
reduce the exposure and eliminate or substantially reduce the risk.
Such steps may include providing alternate household water sup-
plies or relocating a population.
All studies and results of research performed under the author-
ity of this subsection (other than health assessments) are required
by the Senate amendment to be peer reviewed prior to being re-
ported or adopted. In addition, the Senate amendment authorizes
the Administrator of ATSDR to establish a program for the educa-
tion of physicians and other health professionals on methods of di-
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agnosis and treatment of injury or disease related to exposure to
hazardous substances. ATSDR is required to report to the Congress
within 2 years after enactment on the implementation of the edu-
cational program.
House amendment—The House amendment repeals section 104(i)
of current law, moving the health-related authorities already con-
tained therein to a new section 116. The House amendment also
adds several new health-related authorities and requirements in
section 116.
The House amendment establishes the Agency for Toxic Sub-
stances and Disease Registry (ATSDR). ATSDR is required to estab-
lish a list of areas closed to the public or otherwise restricted due
to contamination by hazardous substances, and, together with EPA,
to prepare a list of the most commonly found hazardous substances
at Superfund sites. Within 6 months after enactment, ATSDR must
list at least 100 such substances. Within 24 months after enact-
ment, ATSDR must list an additional 100 substances, and in each
of the following three years, must add at least 25 more substances
to the list. ATSDR is then required to prepare toxicological profiles
on all the listed substances, according to guidelines developed joint-
ly with the Administrator of EPA. The House amendment notes
specifically the type of information which such profiles must at a
minimum contain.
Where adequate information is not available for any hazardous
substance, ATSDR must assure the initation of a research program
designed to determine the health effects of such substance(s). This
research program is to be coordinated between EPA and ATSDR,
and may be carried out using programs already established under
TSCA and FIFRA.
The House amendment requires that ATSDR perform a health
assessment for each facility on the National Priorities List (NPL)
which meets specified criteria. In addition, a process whereby indi-
viduals may petition ATSDR to perform a health assessment is es-
tablished. Petitions must include evidence adequate to demonstrate
that there has been some exposure to a hazardous substance.
Within 45 days after receipt of such a petition, ATSDR must exer-
cise one of several options, including initiating a health assess-
ment, issuing a determination that an assessment is not necessary,
or requesting more information.
The House amendment defines "health assessment" as a deter-
mination of the potential individual and population health risks
posed by a facility, and sets out certain factors upon which such a
determination should be based, such as the nature and extent of
the contamination, potential pathways of human exposure, and the
size and potential susceptibility of the affected community. Where
a health assessment identifies a significant excess of disease in a
population, the assessment must include, to the maximum extent
practicable, an assessment of attributable risk. The purpose of a
health assessment is to aid in deciding what further actions, taken
either by ATSDR under the authority of this section or by EPA
under its authorities under this Act, are necessary.
The House amendment further requires that, upon completion of
a health assessment, ATSDR must provide the Administrator of
EPA and each affected State with the results of the assessment, in-
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eluding recommendations concerning the need to further reduce
exposure to hazardous substances.
Under the House amendment, the costs of performing a health
assessment may be recovered as a cost of response under the au-
thority of section 107 of this Act, where the assessment discloses
exposure of a population to a release of a hazardous substance from
a facility.
The House amendment then directs the Administrator of ATSDR
to perform pilot health effects studies or full-scale epidemiological
studies where, in the judgment of the Administrator of ATSDR,
such studies are appropriate based on the results of a health assess-
ment of other study.
In any case where a health assessment or epidemiological study
indicates a potential or observed significant risk to human health,
the House amendment directs the Administrator of ATSDR to es-
tablish a registry of persons exposed to hazardous substances if,
after evaluation, the Administrator of ATSDR determines that the
registry could benefit its participants by prevention or early detec-
tion of serious adverse health effects, or by providing information
not currently available on the human health effects of such expo-
sure.
The House amendment further requires the ATSDR Administra-
tor to establish a health surveillance program where the ATSDR
Administrator has determined, based on a health assessment, epi-
demiological study, or exposure registry, that there exists a signifi-
cant increased risk of adverse health effects in humans. The health
surveillance program must include at a minimum periodic medical
testing where appropriate and a mechanism to refer for treatment
those individuals who test positive for diseases.
In addition, where a health assessment or other study identifies
a significant risk to human health from exposure to hazardous sub-
stances, the House amendment requires the Administrator of EPA
to take whatever steps may be necessary to abate the risk. Such
steps may include providing alternate household water supplies or
relocating the population. In cases of public health emergencies be-
lieved to be caused by exposure to hazardous substances, the House
amendment directs the Administrator of ATSDR to arrange for
medical care and testing to be provided to exposed individuals, and
to offer assistance to any local and State health authorities provid-
ing such services.
All studies and results of research performed under the author-
ity of this section (other than health assessments) are required by
the House amendment to be peer reviewed prior to being reported
or adopted. ATSDR is further required to assemble, develop where
necessary, and distribute educational materials related to the
human health effects of exposure to hazardous substances and
methods of diagnosis and treatment of such health effects.
Finally, the House amendment makes it clear that the Adminis-
trator of ATSDR has the same authorities under this section with
respect to facilities owned or operated by a department, agency or
instrumentality of the United States as the Administrator of
ATSDR has with respect to any nongovernmental entity.
Conference substitute—The conference substitute follows the
format of the Senate amendment in amending section 104(i) of cur-
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rent law, rather than repealing section 104(i) and creating a new
section.
Thus, there is no need to retain subsections 116 (a) and (b) of the
House amendment, that establish the ATSDR, so these provisions
were not included in the conference substitute, nor was section
116(c) of the House amendment, requiring the establishment of a
list of restricted areas, because this requirement also exists in sec-
tion 104(i) of current law.
The conference substitute adopts the House amendment requir-
ing preparation of a list of substances found at Superfund sites for
which toxicological profiles must be prepared, with one minor addi-
tion from the Senate provision. The conference substitute also
adopts the House amendment requiring preparation of toxicological
profiles, with two modifications. First, House section 116(eX2XO re-
garding toxicological testing is deleted, and a new subparagraph (C)
is inserted. New subparagraph (C) requires that, where appropri-
ate, toxicological profiles shall contain an identification of toxico-
logical testing needed to identify the types or levels of exposure
that may present significant risk of adverse health effects in
humans. Second, a new sentence has been added stating that any
toxicological profile or revision thereof shall reflect the Adminis-
trator of ATSDR's assessment of all relevant toxicological testing.
It is within the discretion of the Administrator of ATSDR to deter-
mine what toxicological testing is relevant.
The conference substitute adopts the Senate amendment requir-
ing establishment of a health effects research program, with the
addition of one sentence from the House bill requiring the Admin-
istrator of ATSDR to consider recommendations of the Interagency
Testing Committee established under the Toxic Substances Control
Act prior to assuring the initiation of the health effects research
program. The conference substitute also adopts the Senate amend
ment requiring coordination of the health effects research program
with other such programs already established under TSCA and
FIFRA. However, the conference substitute deletes the Senate pro-
vision which sets out the circumstances under which the costs asso-
ciated with conducting the health effects research program may be
recovered, and adopts instead new language requiring the Adminis-
trator of EPA to promulgate regulations to govern payment of such
costs.
The conference substitute also adopts primarily the Senate
amendment requiring the performance of health assessments, with
minor and technical changes, except that the conference substitute
does not include the phrase "release, threatened release, or" where
it appears in the Senate language on performing health assess-
ments at facilities listed on the NPL. This phrase is deleted since
facilities listed on the NPL always include releases or threatened
releases of hazardous substances.
The conference substitute adopts the Senate amendment author-
izing the Administrator of ATSDR to perform health assessments
upon receipt of petitions from individuals or licensed physicians to
perform such assessments.
The conference substitute also adopts the Senate amendment
stating the definition of a health assessment, with minor changes.
The conference substitute adopts the House language stating the
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purpose of health assessments, and adopts a combination of the
House and Senate provisions requiring the Administrator of
ATSDR to report results and recommendations upon completion of
a health assessment.
A recommendation made by the Administrator of ATSDR or a
State or local health official under this section does not diminish
the responsibility of the Administrator of EPA to select a response
action which complies with other requirements of this Act or the
National Contingency Plan.
The conference substitute deletes the authority for recovery of
costs associated with the performance of health assessments in
both the House and Senate amendments, since that authority is
covered in the conference substitute's amendments to section 107 of
current law.
The conference substitute adopts the House amendment setting
out circumstances under which pilot health effects studies and full-
scale epidemiological studies should be performed, with the addi-
tion of one additional requirement for a letter of transmittal to ac-
company such study upon completion where the study has identi-
fied a significant excess of disease in a population.
The conference substitute adopts the Senate amendment estab-
lishing a registry of exposed persons, and adopts the House amend-
ment requiring the initiation of health surveillance programs.
Thus, under the conference substitute, the Administrator of
ATSDR is required to establish a health surveillance program
where the Administrator of ATSDR determines, based on a health
assessment, epidemiological study, or exposure registry, that there
exists a significant increased risk of adverse health effects in
humans. In such a circumstance, the term "significant" increased
risk is defined to include increased risks to individuals or the
entire exposed community. Such increased risks would be deter-
mined through review of the whole body of data available to
ATSDR, including any environmental or biological sampling data,
as well as all available toxicologic information. To be considered a
significant increased risk for adverse health effects, the health
effect must be a medically (or biologically) plausible effect from ex-
posure to the substance(s) in question.
It is important to note that the term "significant" does not neces-
sarily mean statistically significant. In scientific terminology, the
phrase statistically significant commonly refers to results that
have a confidence value of 95 percent or better. There may well be
instances where a health assessment, epidemiologic study or toxico-
logical testing will not have shown statistical significance at the 95
percent confidence level, but that a health surveillance program
should be initiated because the adverse health effects are so seri-
ous, or the whole body of literature strongly suggests a correlation
between exposure and adverse health effects.
The conference substitute adopts a combination of the House and
Senate amendments requiring the Administrator of EPA to take
certain steps (such as providing alternate household water supplies
or relocating a population) to abate a significant risk from expo-
sure to hazardous substances. The conference substitute deletes the
House amendment setting out the duties of the Administrator of
ATSDR during public health emergencies caused by exposure to
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hazardous substances, consistent with adopting the Senate ap-
proach of amending section 104(i) of current law, since this provi-
sion is already contained therein.
The conference substitute adopts the Senate amendment requir-
ing peer review of studies and results of research conducted under
this section, with the addition of one House provision setting a
target for completion of the peer review. The conference substitute
adopts the House amendment that requires ATSDR to develop,
where necessary, and distribute educational materials, and adds
authority not explicitly contained in the House amendment for
ATSDR to provide direct educational services through short
courses.
Finally, the conference substitute adopts the House amendment
clarifying and confirming that ATSDR has the same authorities
with respect to facilities owned or operated by the Federal Govern-
ment as it has with respect to any nongovernmental entity.
SECTION 111—USES OF THE FUND
SUBSECTION (a)—AMOUNT OF FUND
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Subsection (a) of section 111 of the House
amendment authorizes $1,830,000 for each of the five fiscal years,
beginning after September 30, 1985. This amount is increased in
any year by an amount equal to so much of the aggregate amount
authorized to be appropriated as has not been appropriated before
the beginning of the fiscal year involved.
Conference substitute—The conference substitute authorizes ap-
propriations of $8.5 billion during a five-year period beginning on
the date of enactment. This authorization also includes any funds
that have been appropriated for the 1986 fiscal year pursuant to
title II of Public Law 99-160.
SUBSECTION (b)—USES OF FUNDS SECTION lll(a)
Senate amendment—Section 138 of the Senate amendment au-
thorizes the establishment of pilot programs for the removal or per-
manent treatment (e.g. decontamination) of lead-contaminated soil.
These programs are to be conducted in one to three metropolitan
areas where the threat to health due to lead contamination—par-
ticularly in children—has become acute. They are likely to be
urban areas with older housing stock where an accumulation of
lead exists in the soil surrounding residential dwellings or other
structures with exterior, lead-based paint.
The pilot programs are designed to provide Federal and State
governments with information that could serve as the basis for a
future, more comprehensive response to hazardous concentrations
of lead in the environment.
House amendment—Section lll(b) of the House amendment pro-
vides that the Fund may be used to make technical assistance
grants under section 117(e) to groups of individuals that may be af-
fected by releases from facilities on the National Priorities List.
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Conference substitute—The conference substitute adopts both the
House and Senate provisions. The Senate provision is broadened to
include actions by the Administrator to remove, decontaminate or
take other action with respect to soils that contain lead at the dem-
onstration sites. The pilot projects are not limited as to time or ex-
penditure amounts under section 104(c)(l), nor is cost-sharing from
the State in which a site is located required.
SUBSECTION (c)—NATURAL RESOURCE DAMAGE CLAIMS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section lll(f) of the House amendment
limits payments from the Fund for natural resource claims to those
for which the claimant has exhausted all administrative and judi-
cial remedies to recover from potentially liable parties. The ex-
haustion requirement does not apply to claims for the costs of nat-
ural resource damage assessments. Natural resource claims filed
after December 1, 1985, may be paid only if damage assessments
have been carried out in accordance with regulations issued by the
Secretary of the Interior. Claims pending as of December 1, 1985,
may be paid, but the total paid for all such claims may not exceed
50 percent of the total amount claimed, as determined by the Ad-
ministrator.
Conference substitute.—The conference substitute adopts the
House amendment with modifications. Payments for claims filed
before December 1, 1985, are not restricted. The specific require-
ment that claims filed after December 1, 1985, be limited to assess-
ments carried out in accordance with Interior Department regula-
tions is deleted. Where, with reasonable diligence, jurisdiction in
the Federal courts cannot be obtained over a responsible party
likely to be solvent at the time of judgment, a claimant has ex-
hausted all administrative and judicial remedies.
SUBSECTION (d)—SUBSECTION (c) AMENDMENTS
Senate amendment—The Senate amendment to subsection (cX4)
adds references to subsection (n) and section 104(i), relating to the
ATSDR, and incorporates laboratory studies and health assess-
ments.
House amendment—The House amendment modifies section
lll(c) to provide that the term "health assessment" as used in
paragraph (4) has the same meaning as section 116(fK7).
Furthermore, section Hl(d) of the House amendment adds the
following purposes or activities for which the Fund may be used:
Petitions: Costs incurred by the Administrator in evaluating
facilities pursuant to petitions submitted by any person who is
or may be affected by a release or threatened release of a haz-
ardous substance or pollutant or contaminant.
Oversight: The costs of (1) appropriate Federal and State
oversight of remedial activities at National Priorities List sites
resulting from consent orders or settlement agreements where
the responsible party or parties have been determined, but in-
adequate oversight assistance has been provided by such party
or parties, and (2) costs of contracts under section 104(aXD.
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Real Estate Acquisition: Costs incurred by the Administrator
in acquiring real estate or interests in real estate under au-
thority provided in the House amendment.
Research and Development: The costs of carrying out re-
search, development, and demonstration of alternative and in-
novative treatment technologies, hazardous waste research,
and research at university centers.
Local Emergency Measures: Reimbursements to local govern-
ments for temporary emergency measures and protection of
drinking water supplies, with not to exceed 0.1 percent of the
total amount appropriated from the Fund to be used for such
purposes.
Worker Training: The cost of worker training and education
grants to the extent that these costs do not exceed $10 million
for each of the fiscal years 1986 through 1990.
Rewards: The costs of paying awards to individuals for infor-
mation leading to arrest and conviction of any person subject
to a criminal penalty under the Act.
Conference substitute—The conference substitute adopts the
Senate amendment to subsection (c)(4) with modifications to pro-
vide that all costs under section 104(i) can be paid from the Fund.
The conference substitute adopts the House amendment in section
lll(d)(2) with the following modifications. The substitute (1) incor-
porates the term "arrangements" into section lll(cX8) to parallel
the provisions of section 104(a)(l) and drops the language relating
to inadequate oversight assistance; (2) adopts a more general refer-
ence to section 311 in section Hl(cXlO); and (3) adds a new para-
graph (14) relating to the lead poisoning study authorized by sec-
tion 118.
SUBSECTION (e)—LIMITATION ON CERTAIN CLAIMS
Senate amendment—Section 134(b) of the Senate amendment pro-
hibits payments from the Fund for natural resource damages in
any year for which the President determines that all of the fund is
needed for response to threats to public health.
House amendment—Section 11 Kg) of the House amendment con-
tains a technical amendment which provides that claims against
the Fund shall not be valid or paid in excess of the total money in
the Fund at any one time. The amendment limits the reference to
claims to those for response costs "by any other person."
Conference substitute—The conference substitute adopts the
Senate provision and deletes the House provision.
SUBSECTION (f)—WATER SUPPLIES BEYOND FEDERAL BOUNDARIES
Senate amendment—Section 140 of the Senate amendment
amends section lll(e)(3) of the Act to provide that the Fund can be
used to pay for alternative water supplies in cases involving feder-
ally-owned facilities, where groundwater contamination exists
beyond the federal property boundary and the federally-owned fa-
cility is not the only potentially responsible party. This would in-
clude reimbursement of funds already spent by a municipality.
House amendment—The House amendment contains no compara-
ble provision.
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Conference substitute—The conference substitute adopts the
Senate provision.
SUBSECTION (g)—INSPECTOR GENERAL AUDITS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section lll(h) of the House amendment re-
places the provisions in current law concerning audits by Inspec-
tors General of the agencies charged with responsibility for imple-
menting the Superfund program. The new provision requires
annual audits and submission of an annual report to the Congress
summarizing the audit's findings. Each such report must include:
(1) an audit of all payments, obligations, reimbursements or other
uses of the Hazardous Substance Response Trust Fund to assure
that the Fund is being properly administered; (2) a report on the
status of all remedial and enforcement actions undertaken during
the prior fiscal year; and (3) an estimate of the amount of re-
sources, including the numbers of work years of personnel, which
will be necessary for the relevant agencies to fulfill their statutory
mandates.
Conference substitute—The conference substitute adopts the
House amendment with modifications. The annual status report on
remedial and enforcement actions and the resource estimate that
were specifically assigned to the Inspector General by the House
amendment is incorporated at a later point in the substitute as a
general requirement for EPA's annual report. The Inspector Gener-
al is to review these items in the EPA annual report. The Inspector
General is also required to comply with the provisions of the Single
Audit Act when conducting audits and reviews of Superfund pay-
ments and obligations.
SUBSECTION (h)—NEW SUBSECTIONS
Subsection (h) adds three new subsections to section 111 of
CERCLA. Each subsection is described separately below:
SUBSECTION (h)(l)—AGENCY FOR TOXIC SUBSTANCES AND DISEASE
REGISTRY
Senate amendment—The Senate amendment provides that in
each fiscal year beginning in 1986 not less than 5 percent of the
funds appropriated from the Fund would be directly available to
the Agency for Toxic Substances and Disease Registry (ATSDR) to
carry out the responsibilities assigned by ATSDR by the Act.
House amendment—Section lll(j) of the House amendment pro-
vides that for fiscal year 1986 and each fiscal year thereafter, not
less than $30 million should be directly available from the Fund to
the ATSDR for carrying out health effects research and public
health assessment and protection activities.
Conference substitute—The conference substitute provides that
not less than $50,000,000 in fiscal year 1987 and 1988, not less than
$55,000,000 in 1988 and 1989 and not less than $60,000,000 in 1990
and 1991 shall be directly available to ATSDR to carry out activi-
ties under subsection (cX4) and section 104(i).
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SUBSECTION (h)(2) — LIMITATIONS ON RESEARCH AND DEVELOPMENT
Senate amendment — The Senate amendment contains no compa-
rable provision.
House amendment — Section lll(k) of the House amendment es-
tablishes the following limitations on funding from the Fund for re-
search and development programs:
No more than $20 million for each fiscal year 1986-90, for
research, development and demonstration of innovative or al-
ternative technologies under section 311(b);
For hazardous substance research, demonstration and train-
ing programs under section 311(a): 1986, $3 million; 1987, $10
million; 1988, $20 million; 1989, $30 million; and 1990, $35 mil-
lion. No more than 10 percent of such amounts in each year
may be used for training under section 311(a).
For each fiscal year 1986-90, no more than $5 million for
university hazardous substance research centers under section
Conference substitute — The conference substitute adopts the
House amendment with modifications to years of authorization.
SUBSECTION (h)(3)— NOTIFICATION PROCEDURES
Senate amendment — The Senate amendment contains no compa-
rable provision.
House amendment — Section lll(c) of the House amendment
modifies section lll(a)(2) of CERCLA to authorize the Administra-
tor to require "preauthorization" of claims against the Fund. Sec-
tion lll(c) of the House amendment also contains amendments to
section 112 of CERCLA. Those amendments are discussed in con-
junction with section 112 of the conference substitute, below. Final-
ly, section 111(1) of the House amendment proposes a new section
lll(p), titled "Notification Procedures for Limitations on Certain
Payments," which requires the Administrator to notify State arid
local officials and other concerned persons of the limitations on
payment of claims from the Fund as soon as a site is listed on the
National Priorities List.
Conference substitute — The conference substitute adopts only that
portion of the House amendment relating to notifying State and
local officials of the limitations on paying claims against the Fund
when a site is listed on the National Priorities List. This amend-
ment does not relate to the issue of preauthorization.
The conference substitute deletes the House amendment to sec-
tion lll(a)(2) of CERCLA. The conferees agree that current law is
adequate as it relates to payment of claims for necessary response
costs incurred by any other person as a result of carrying out the
National Contingency Plan and that no amendments to section
lll(aX2) are necessary.
OTHER MONETARY AUTHORIZATIONS
Senate amendment — The Senate amendment contains no compa-
rable provision.
House amendment — Section lll(i) of the House amendment pro
vides that there is authorized to be appropriated out of any money
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in the Treasury to the Hazardous Substance Superfund $250 mil-
lion per year for fiscal years 1986 through 1990. This amount is
available only to the extent that it exceeds amounts recovered on
behalf of the Trust Fund for the prior fiscal year. In addition there
is authorized to be appropriated to the Fund for each fiscal year an
amount equal to so much of the aggregate amount authorized to be
appropriated as has not been appropriated before the beginning of
the fiscal year.
Conference substitute—The conference substitute authorizes to be
appropriated $212.5 million per fiscal year for fiscal years 1987
through 1991.
SECTION 112—CLAIMS PROCEDURE
SUBSECTION (a)—CLAIMS AGAINST THE FUND FOR RESPONSE COSTS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section lll(c)(2) of the House amendment
amends section 112(a) of the Act, which contains a 60-day presenta-
tion requirement prior to the initiation of claims against the Fund,
to specify that no claim against the Fund may be considered during
the pendency of a civil action brought by the claimant to recover
costs which are the subject of the claim.
Conference substitute—The conference substitute adopts section
lll(cX2) and (3) of the House amendment with the following modifi-
cations. First, the reference to section lll(a) in the new section
112(a) is corrected. Second, the proviso is modified to provide that
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.
Section 112(a) of current law contains a sixty-day presentation
requirement relating to the initiation of claims against the Fund.
Because of the absence of adequate guidance of the procedure for
filing such claims, the failure of Federal or State natural resource
trustees to comply with this requirement does not constitute a bar
to the trustees from maintaining a claim against the Fund prior to
December 11, 1983. The sixty-day presentation requirement has
never applied to civil actions, nor is the selection of remedies au-
thorized in section 112(a) irrevocable.
SUBSECTION (b)—PROCEDURES
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section lll(cX3) of the House amendment
proposes to raise the penalty for providing false information in a
claim from $5,000 to $25,000 and strikes all of paragraphs (2), (3)
and (4) of section 112(b), which contains settlement authorities and
procedures for resolving disputed claims before a Board of Arbitra-
tors. In lieu thereof, the House amendment proposes an adminis-
trative procedure by which claimants may challenge a decision of
the President to reject all or part of a claim.
Conference substitute—The conference substitute adopts the
House amendment to section lll(c)(3) with the following modifica-
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tions. First, the modification to the penalty provision in section
112(b) is incorporated into section 109, pertaining to penalties. Fi-
nally, the conference substsitute provides that the amendments to
section 112(a) shall not apply with respect to claims filed before the
enactment of the subsection.
SUBSECTION (c)—STATUTE OF LIMITATIONS
Senate amendment—Section 142(b) of the Senate amendment
adds a new section 113 to CERCLA which provides statute of limi-
tations for both civil actions under the Act and claims against the
Fund. This section of the conference report addresses claims
against the Fund only; section 113 addresses, inter alia, statute of
limitations for civil actions. The proposed section 113 specifies that
no claim may be presented against the Fund for the costs of re-
sponse unless the claim is presented within six years after the date
of completion of the response action. Within the limitation period,
a State or the United States may commence an action under this
title for recovery of any costs at any time after such costs have
been incurred. The Senate provision requires claims for natural re-
source damages to be initiated within six years after promulgation
of regulation under section 301(c), or three years after the date of
discovery of loss and its connection with the release in question,
whichever is later.
House amendment—Section 112 of the House amendment pro-
poses to amend section 112(d) of CERCLA to provide a six-year stat-
ute of limitations for claims for the recovery of costs referred to in
section 107(a), running after the date of the completion of all re-
sponse action. The provision also retains current law relating to
the running of the statute of limitations against a minor or incom-
petent, as currently contained in section 112(c)(3). The House
amendment does not contain a time limit for filing claims for natu-
ral resource damages.
Conference substitute—The conference substitute adopts the
House amendment to section 112(d) of CERCLA with the following
modification. The provision includes a new subsection (dX2) relat-
ing to claims for the recovery of natural resources damages, which
provides that no claim may be presented under this section for the
recovery of damages referred to in section 107(a) unless the claim is
presented within three years after the date of discovery of the loss
and its connection with the release in question, or the date on
which final regulations are promulgated under section 301(c),
whichever is later.
SUBSECTION (d)—DOUBLE RECOVERY
Senate amendment—The Senate amendment contains no provi-
sion relating to this subject.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute provides for a
new section (f) to section 112 providing that where the President
has paid out of the Fund any response costs or any costs specified
under section lll(c)(l) or (2), no other claim may be paid out of the
Fund for the same costs. This amendment to section 112, as wall as
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the amendment to section 107(f), assures that there is no double re-
covery for natural resources damages, including the costs of dam-
ages assessment, restoration, rehabilitation, or acquisition in the
case of injury to natural resources. These amendments are not in-
tended to prohibit different claims or actions for different damages
stemming from the same injury to the same natural resource. Nor
are the amendments intended to affect the abilities of trustees to
initiate or participate as co-claimants or co-plaintiffs where other-
wise authorized to do so.
SECTION 113—LITIGATION, JURISDICTION, AND VENUE
Senate amendment—The Senate amendment proposes a number
of modifications to CERCLA. First, it adds a new section 113(e) to
CERCLA to clarify and confirm that nationwide service of process
is available for suits instituted under CERCLA.
The Senate amendment adds a new section to CERCLA to clarify
and confirm that parties found liable under sections 104, 106, and
107 of CERCLA have a right of contribution which would allow
them to sue other liable or potentially liable persons. The provision
also explicitly provides that parties who reach a judicially ap-
proved good faith settlement with the government are not liable
for the contribution claims of other liable parties.
As to claims and actions for natural resources damages, the
Senate amendment requires that claims be presented or actions
commenced within three years after the discovery of the loss and
its connection with the release in question or the date of enactment
of this Act or within six years after the date on which final natural
resource damage regulations are promulgated, whichever is later.
For response costs, the Senate amendment requires that claims
be presented or actions commenced within six years after the date
of completion of the response action.
The Senate amendment contains a provision which explicitly pre-
serves the rights of minors or incompetents to file actions until
such time as they become legally competent.
The Senate amendment, set forth in proposed new 113(f), pro-
vides for judicial review of the response under only three circum-
stances:
(1) cost-recovery actions under section 107;
(2) suits for abatement under section 106(a); or,
(3) Suits to recover penalties under section 106(b).
Judicial review is based on an administrative record developed
by the President with full opportunity for potentially responsible
parties and other citizens to provide comment.
Under the Senate amendment, the burden of proof is on the
party challenging the response to establish that the response "was
not reasonably justified under the criteria set forth in the NCP, in-
cluding the cost effectiveness of such action, or that the decision
was not otherwise in accordance with law." If a challenging party
prevails under this standard of review it nevertheless remains ac-
countable for the cost of that portion of the response that was rea-
sonably justified.
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Finally, the Senate amendment contains provisions on reim-
bursement, expedited judicial review of permitting, and selection of
the circuit court of venue for actions under CERCLA.
House amendment—The House amendment contains many of the
same elements as the Senate amendment. All of its provisions are
added to existing section 113 of CERCLA.
The House amendment establishes a new section 113(e) regarding
nationwide service of process. It also establishes a new section
113(f) for authority by settling parties to seek contribution from
non-settlors. This section protects settling parties from actions for
contribution by others whether the settlement is incorporated in a
consent decree or an administrative order.
For natural resource damages, the House amendment in new sec-
tion 113(g) of CERCLA requires that a civil action be commenced
within three years after the date of the discovery of the loss or of
the promulgation of natural resource damage regulations, whichev-
er is later. It also sets forth new statutes of limitations for civil ac-
tions for the recovery of response costs.
The House amendment, set forth in new section 113(h) of
CERCLA, establishes the identical three circumstances under
which judicial review of the remedy is available as does the Senate
amendment. In addition, it explicitly provides for five additional
circumstances in which judicial review can be obtained prior to im-
plementation of the response action.
The House amendment also contains provisions regarding inter-
vention, judicial review and the standard thereof, the administra-
tive record and contents thereof, and reimbursement.
Conference substitute—The conference substitute adopts the lan-
guage of the House amendment with clarifications and modifica-
tions. It also incorporates specific provisions from the Senate
amendment.
The conference substitute adopts the language related to nation-
wide service of process that was contained in the House amend-
ment. This provision, designated new section 113(e) of CERCLA,
clarifies and confirms that nationwide service of process is avail-
able for suits instituted by the United States under CERCLA.
Nothing in this section diminishes any right of any other person to
secure nationwide service of process under any other authority.
The conference substitute adopts new section 113(f) as contained
in the House amendments, and thus provides contribution protec-
tion for those who enter into administrative settlement agreements
with the government, as well as those who enter into consent de-
crees for settlements. In addition, the substitute makes technical
and clarifying changes to this section. Finally, the substitute de-
letes the reference to the circumstances under which settlements
can be set aside under new section 113(fX2). This issue is now cov-
ered in new section 122(m) which deals directly with settlements;.
With respect to civil actions for natural resource damages, the
conference substitute adopts new section 113(g) of CERCLA as set
forth in the House amendment, with clarifications and modifica-
tions. One modification, based on the Senate amendment, requires
that a civil action be commenced within three years after the later
of (1) the date of the discovery of the loss and its connection with
the release in question or (2) the date on which final natural re-
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source damage regulations are promulgated. This section further
requires that civil actions for damages to natural resources gener-
ally be delayed until completion of the RI/FS at NPL sites and at
certain other sites where the President is diligently proceeding
with the RI/FS. The phrase "the President is diligently proceeding
with a remedial investigation and feasibility study" includes cases
where a potentially responsible party is performing an RI/FS
under supervision of the President.
The Conferees have adopted these amendments relating to the
time limits for initiating actions for natural resource damages be-
cause the ability for Federal and State trustees to pursue such
claims and actions has been impaired by the failure of the Presi-
dent to promulgate regulations govering procedures for filing
claims and assessing damages to natural resources. These amend-
ments are intended to revive causes of action for natural resource
damages that may have been foreclosed by the running of the stat-
ute of limitations relating to such actions under current law. A cor-
responding set of amendments in section 112 pertaining to the time
limits for filing claims against the fund for natural resource dam-
ages is also intended to revive claims that may have been fore-
closed.
As to the statute of limitations for civil actions for the recovery
of response costs, the conference substitute adopts new section
113(g)(2) of CERCLA from the House amendment, with clarifying
changes. This provision distinguishes between remedial actions and
removal actions. The conference substitute also provides, as did the
House amendment, for the entry of a declaratory judgment, which
is to have a binding effect in future claims for future response costs
as to the vessel or facility in question. This is consistent with the
overall structure of CERCLA, which contemplates that the Presi-
dent may bring a series of claims for response costs under section
107, injunctive relief under section 106, or actions for access under
section 104 with regard to a particular site or facility. If the Presi-
dent brings an earlier action for such claims, he is not barred in a
subsequent action from bringing other claims. The doctrine of col-
lateral estoppel remains applicable in these actions.
The conference substitute also adopts section 113(g)(3) of the
House amendment, which prohibits the commencement of any
action for contribution more than three years after the date of
judgment in any civil action under this Act for recovery of costs or
damages or more than three years after the date of entry of admin-
istrative or judicially approved settlements. Actions for indemnifi-
cation incurred pursuant to new section 119 of CERCLA must be
commenced within three years of the date upon which such indem-
nification is paid.
The conference substitute also expressly preserves, as did both
the Senate and House amendments, the rights of minors and other
incompetents until such time as they become legally competent or
a guardian ad litum is appointed.
The conference substitute clarifies the language of new section
113(h) of CERCLA, which covers the timing of access to judicial
review. It adopts the first three exceptions of both the Senate and
House amendments, the fourth exception of the House amendment
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and, with clarifications, the fifth exception of the House amend-
ment.
In new section 113(h)(4) of the substitute, the phrase "removal or
remedial action taken" is not intended to preclude judicial review
until the total response action is finished if the response action pro-
ceeds in distinct and separate stages. Rather an action under sec-
tion 310 would lie following completion of each distinct and separa-
ble phase of the cleanup. For example, a surface cleanup could be
challenged as violating the standards or requirements of the Act
once all the activities set forth in the Record of Decision for the
surface cleanup phase have been completed. This is contemplated
even though other separate and distinct phases of the cleanup,
such as subsurface cleanup, remain to be undertaken as part of the
total response action. Similarly, if a response action is being con-
ducted at a complex site with many areas of contamination, a chal-
lenge could lie to a completed excavation or incineration response
in one area, as defined in a Record of Decision, while a pumping
and treating response activity was being implemented at another
area of the facility. It should be the practice of the President to set
forth each separate and distinct phase of a response action in a
separate Record of Decision document. Any challenge under this
provision to a completed stage of a response action shall not inter-
fere with those stages of the response action which have not been
completed.
New section 113(h) is not intended to affect in any way the rights
of persons to bring nuisance actions under State law with respect
to releases or threatened releases of hazardous substances, pollut-
ants, or contaminants.
In new section 113(i) of CERCLA, the conference substitute
adopts a modified version of the Senate provision that expressly
provides for a right of intervention in actions commenced under
the Solid Waste Disposal Act or CERCLA.
The conference substitute adopts new section 113(j) of the House
amendment, which limits judicial review of the selection of a re-
sponse action to the administrative record on which the selection
was based. The substitute clarifies the language of the House
amendment to provide that the otherwise applicable principles of
administrative law will govern as to whether supplemental materi-
al may be considered by the court. The applicable standard of
review is that of the House amendment, namely "arbitrary and ca-
pricious or otherwise not in accordance with law."
The conference substitute adopts new section 113(k) of the House
amendment to require the President to promulgate regulations for
the establishment of an administrative record, which is to form the
basis for the selection of a response action. Until the promulgation
of regulations under new section 113(k), the record shall consist of
those materials developed under current procedures for selection of
a response action. The record for a response action selected prior to
implementation of these regulations shall consist of the record de-
veloped prior to such implementation. General principles of admin-
istrative law respecting such records are not affected by this provi-
sion. The conference substitute expressly provides for participation
by potentially responsible parties and other citizens in the develop-
ment of this record, as well as its public availability. In addition,
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the President is required to make reasonable efforts to identify and
notify potentially responsible parties before selection of a response
action, but neither this requirement nor other provisions of the
paragraph in which it is contained are to be a defense to liability.
The conference substitute sets forth the agreement on reimburse-
ment as section 106 of the substitute.
The conference substitute incorporates the provision of the
Senate amendment which requires that whenever a suit is brought
under CERCLA, notice of such suit must be provided to the Attor-
ney General of the United States and the Administrator.
The conference substitute deletes the Senate provision regarding
expedited judicial review of permitting, which was included in the
Senate bill as new section 113(i) of the Act. Litigation regarding
permits required under applicable Federal laws for facilities that
are designed to treat or dispose of hazardous wastes, particularly
those from the cleanup of Superfund sites, should be given priority
treatment by the courts.
The conference substitute deletes the Senate provision which
would have amended existing section 113(a) of CERCLA to provide
for the selection of the circuit court of venue for actions under the
Act.
SECTION 114—RELATIONSHIP TO OTHER LAW
STATE FINANCING
Senate amendment—The Senate amendment strikes subsection
114(c) which addresses the right of States to impose taxes for pur-
poses already covered by CERCLA.
House amendment—The House amendment amends subsection
114(c) of CERCLA to allow States to require contribution to a fund
whose purpose is to pay for costs of response or damage.
Conference substitute—The conference substitute adopts the
Senate approach. The substitute clarifies that States are not pre-
empted from imposing taxes for purposes already covered by
CERCLA.
USED OIL
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment includes an amend-
ment to the definition of "hazardous substance" to exclude used oil
that is: listed as a hazardous waste under the Solid Waste Disposal
Act; treated, managed, or recycled in such a way as to remove or
render harmless the hazardous constituents contained in such oil;
and, managed in compliance with standards promulgated by the
Administrator, which shall include the authority for the Adminis-
trator to order corrective action necessary for any release of used
oil.
Conference substitute—The conference substitute replaces the
House amendment with a series of new provisions relating to used
and recycled oil. The amendment to section 114 of CERCLA pro-
vides that service station dealers who (i) collect for recycling, used
oil that is not mixed with other hazardous substances, and (ii)
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manage the recycled oil in compliance with yet-to-be-promulgated
management standards under the Solid Waste Disposal Act (SWDA
or RCRA) and other applicable authorities such as State or local
recycling programs, will be exempted from Superfund liability for
releases that might occur after they have relinquished control of
the recycled oil. Liability under other laws, such as RCRA, is not
affected.
"Service station dealer" is defined as any person who (1) owns or
operates a filling station, garage, or similar retail establishment
engaged in the business of selling, repairing, or servicing motor ve-
hicles, (2) derives a significant percentage of the establishment's
gross revenue from the fueling, repairing, or servicing of motor ve-
hicles, and (3) accepts for collection, accumulation, and delivery to
an oil recycling facility, oil that has been removed from a light
duty motor vehicle, such as a passenger car, van, or small, person-
al-use pickup truck, or household applicance, such as a lawnmower,
by the owner of the vehicle or appliance. All of these conditions
must be met.
The fact that in some situations, such as in certain rural set-
tings, no oil is presented by do-it-yourselfers for collection, accumu-
lation, and delivery will not preclude a particular dealer from
qualifying under this amendment. However, if such oil is present-
ed, the dealer must, as a general matter, accept it to qualify for the
special treatment afforded by this amendment. The requirement is
that a service station dealer "accept ... oil ... that is presented
. . .". To qualify, a dealer must be willing to accept oil from do-it-
yourselfers. Conversely, a dealer who qualifies under this definition
may, if he has reason to believe that a specific batch of oil has been
mixed with other hazardous substances, refuse to accept that spe-
cific batch without sacrificing the coverage of this amendment.
To prevent the creation and use of "service station dealerships"
as a front for hazardous waste management firms or commercial
generators of hazardous substances that want the benefit of this ex-
emption from liability, a significant percentage of the business'
gross revenue must be derived from the fueling, repairing, or serv-
icing of motor vehicles. Business operations, such as large retail es-
tablishments or car and truck dealerships that have a legitimate,
commercial automotive service component, are intended to be cov-
ered by this definition. However, a retail establishment that does
not derive revenue from fueling, repairing, or servicing motor vehi-
cles does not qualify under this definition. To the extent establish-
ments that do not qualify under this definition produce large quan-
tities of used oil, they are industrial generators and are to be treat-
ed like other generators. The President is directed to further define
in regulations what constitutes a "significant percentage."
Some government agencies, in an attempt to encourage do-it-
yourselfers to recycle their oil rather than dispose of it improperly,
have established collection facilities to accept delivery of small
quantities of used oil from individuals. Such facilities that are es-
tablished solely for this purpose will qualify as a "service station"
under this amendment.
Also included in the definition of "service station dealer" are
owners or operators of refuse collection services who are compelled
by State law to collect, accumulate, and deliver do-it-yourselfer oil
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to oil recycling facilities. Such "dealers" are included in the defini-
tion only with respect to the small quantities of used oil collected
from individual do-it-yourselfers. The special treatment afforded by
this amendment does not extend to the collection of commercial or
industrially produced used oil.
This amendment becomes effective on the effective date of EPA's
RCRA used oil regulations. Such regulations must include a re-
quirement that owners or operators conduct corrective action to re-
spond to releases of recycled oil. The Agency shall, in conjunction
with this rulemaking, provide notice to service station dealers all
across the country of this amendment and explain what each
dealer must do to qualify for the special treatment afforded by this
amendment.
As noted above, the Agency is in the process of developing man-
agement standards and regulations for used oil under section 3014
of RCRA. The Agency is reportedly considering a regulatory ap-
proach that would regulate all used and recycled oil but would not
list "recycled oil" as a hazardous waste. If such an approach is se-
lected, RCRA provisions regarding criminal penalties and the au-
thority for EPA to delegate responsibility for the regulatory pro-
gram to the States will not, under the terms of RCRA, extend to
recycled oil. To avoid such a result, the conference substitute in-
cludes in section 205 (relating to underground tanks) an amend-
ment to make RCRA's criminal penalty provisions applicable to
persons who improperly manage used oil that is regulated but not
listed as a hazardous waste under RCRA. Similarly, EPA is given
the authority to delegate such a regulatory program to the States.
These amendments do not indicate a Congressional preference for
any particular regulatory approach. They are included here to cor-
rect potential deficiencies in the RCRA regulatory program. These
amendments are not intended to influence or prejudge the outcome
of the ongoing regulatory process under RCRA.
While the pressures to recycle waste oil for energy conservation
and economic purposes have eased recently, the pressures to safely
manage such used oil and to prevent environmental pollution are
ever growing. America's used oil recycling system handles approxi-
mately 57 percent of the more than one billion gallons of used oil
generated each year. The balance of the used oil is disposed of im-
properly—into sewers, backyards, or into the trash which eventual-
ly winds up in municipal landfills.
The current used oil recycling system in this country depends, in
large measure, on volunteers. These include small business owners,
such as service station dealers, who perform a community service
by collecting used oil from do-it-yourself oil changers and deliver-
ing such oil to recyclers. The volume of waste involved and the con-
nection with the problem of properly managing household hazard-
ous waste are just two examples of the factors that make the sub-
ject of this amendment unique.
Used oil, when properly recycled and managed, is a valuable re-
source. However, a number of factors, such as lower prices for
virgin oil and fear of liability under Superfund or the Solid Waste
Disposal Act, have recently resulted in a reduced demand by com-
mercial users of recycled oil. To the extent such a reduction in
demand disrupts the entire chain of commerce in recycled oil and
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leaves numerous households with no safe outlet for the oil from do-
it-yourself automobile oil changes, the Federal government can and
should, as a consumer, help to rectify this problem.
As set forth in section 6002(c)(2) of the Solid Waste Disposal Act,
Federal agencies that generate heat, mechanical, or electrical
energy from fossil fuel in systems that have the technical capabil-
ity of using energy or fuels derived from solid waste as a primary
or supplementary fuel are required to use such capability to the
maximum extent practicable. This includes recycled oil. The Ad-
ministrator of EPA should work with these other agencies and,
through the use of memoranda of understanding or other appropri-
ate documents, assure that section 6002(c)(2) is being complied
with, particularly with respect to the purchase and use of recycled
oil.
This legislation includes an amendment to subtitle I of the Solid
Waste Disposal Act which establishes a response program for leaks
from underground storage tanks. Such tanks containing used oil
which has not been mixed with other hazardous substances would
generally fall within the meaning of petroleum tanks under the
subtitle I response program. In responding to releases from such
underground tanks containing used oil which has not been mixed
with hazardous substances, the EPA should use the authorities of
subtitle I rather than authorities under CERCLA or other correc-
tive action authorities under Subtitle C of the Solid Waste Disposal
Act. The presence of hazardous substances in used oil that result
from the normal use of the oil (and not from mixing the oil with
solvents or other hazardous substances) shall not be reason for
EPA to disqualify a tank as eligible for response under the subtitle
I response program. In most cases, releases from tanks containing
used oil would not rise to the priority level necessary to be listed
on the National Priorities List for CERCLA response. The subtitle I
response program, financed from a separate source of revenue and
designed for response to petroleum releases, is intended to assure a
rapid and effective response to releases from underground storage
tanks, including tanks which store used oil.
SECTION 115—DELEGATION; REGULATIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment authorizes the Presi-
dent and the Administrator of the EPA to delegate authorities in
order to carry out the provisions of title I of CERCLA. The amend-
ment also authorizes the Administrator of EPA to issue any regula-
tions necessary to carry out the provisions of CERCLA.
Conference substitute—The conference substitute adopts no
amendment to section 115 of CERCLA.
SECTION 116—SCHEDULES
Senate amendment—The Senate amendment contains no provi-
sion on schedules.
House amendment—Section 104(n) of the House amendment adds
a new subsection 104(i) that establishes a mandatory schedule for
response actions and other activities under CERCLA. The schedule
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contains target dates and objectives for completing remedial assess-
ments, for listing facilities on the National Priorities List, for com-
mencing remedial investigations and feasibility studies, for com-
mencing remedial actions themselves, and for completing remedial
actions at existing NPL facilities.
Conference substitute—The conference substitute provides for a
new section 116 of CERCLA, titled "Schedules." Subsection (a) es-
tablishes as a goal of the Act that, to the maximum extent practi-
cable, the President shall complete preliminary assessments of all
facilities that are contained at the date of enactment in the Com-
prehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). A preliminary assessment of those
facilities is to include a statement as to whether a site inspection is
necessary and by whom it should be carried out. The conference
substitute also establishes as a goal of the Act that, not later than
January 1, 1989, the President shall ensure the completion of site
inspections at all facilities for which the President has stated a site
inspection is necessary. Subsection (b) provides that within four
years after enactment, each facility in CERCLIS shall be evaluated
if the President determines that the evaluation is warranted on the
basis of a site inspection or preliminary assessment. In a case of a
facility listed in CERCLIS after enactment, the facility shall be
evaluated within four years after the date of listing if the Presi-
dent determines that such evaluation is warranted on the basis of
a site inspection or preliminary assessment. Based on information
supplied by the Administrator of the Environmental Protection
Agency, it is expected that the President will have added, or pro-
posed to add, between 1,600 and 2,000 sites to the National Prior-
ities List. To the maximum extent practicable, the President
should undertake CERCLIS evaluations at an annual rate suffi-
cient to achieve this goal by 1988.
Subsection (c) provides that, where any of the goals established
by subsection (a) or (b) are not achieved, the President shall explain
why such action was not completed by the specific date. Subsection
(d) requires the President to assure that no fewer than 275 remedi-
al investigations and feasibility studies are commenced for facilities
listed on the NPL, in addition to those commenced prior to the
date of enactment of this Act within 36 months after enactment.
Where the President fails to meet the 275 RI/FS target, no fewer
than an additional 175 RI/FSs shall be comenced within four years
after enactment; an additional 200 RI/FSs within five years after
enactment; and a total of 650 RI/FS within five years after enact-
ment.
Subsection (e) requires the President to assure that substantial
and continuous physical on-site remedial action commences at faci-
lites on the NPL, in addition to those facilities on which remedial
actions has commenced prior to the date of enactment of these
amendments, according to the following schedule: 175 facilities
during the first 36 months after enactment; and 200 additional fa-
cilities during the following 24 months.
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SECTION 117— PUBLIC PARTICIPATION
Senate amendment—The Senate amendment requires that,
before the United States or a State selects a remedial action or
enters into a convenant not to sue or to forbear from suit or other-
wise settle or dispose of a claim under the Act, several procedures
must be followed to allow the public to participate prior to final se-
lection or entry. The public must be given notice of such proposed
action, opportunity for a public meeting in the affected area, and a
reasonable opportunity to comment. Notice must be accompanied
by a discussion and analysis sufficient to provide a reasonable ex-
planation of the proposals considered.
The Senate provision also amends section lll(c) of CERCLA to
include the costs of technical assistance grants under the purposes
for which the President is authorized to use the money in the
Fund. Payment of such costs is subject to amounts as are provided
in appropriations acts and shall be in accordance with rules pro-
mulgated by the President. Such grants may be made to those po-
tentially affected by a release or threatened release at any facility
listed on the National Priorities List, and may not exceed $75,000
per grant. These grants may be used to obtain technical assistance
in interpreting information about the nature of the hazard, remedi-
al investigation and feasibility study, record of decision, remedial
design, selection and construction of remedial action, operation and
maintenance, or removal action at a facility.
House amendment—The House amendment requires either the
Administrator or State, as appropriate, to take steps before adopt-
ing any remedial action plan. The first step is publishing a notice
and brief analysis of the plan and making the plan available to the
public. This notice and analysis must include sufficient information
necessary to provide a reasonable explanation of the proposed plan.
The second step is providing reasonable opportunity for submission
of written and oral comments, and an opportunity for a public
meeting at or near the facility in question, about the proposed plan
and any waivers of requirements granted under section 121 of the
House amendments relating to cleanup standards. The Administra-
tor is required to keep a transcript of such a meeting and to make
this transcript available to the public.
House amendment also requires that notice of the final remedial
action plan be published and that the plan be made available to
the public before commencing any remedial action. This final plan
must be accompanied by a discussion of any significant changes in
the proposed plan, and the reasons for such changes, as well as a
response to each of the significant comments, criticisms, and new
data submitted in oral or written presentations in accordance with
the requirements described above.
After adoption of a final remedial action plan, if any remedial
action is taken, if any section 106 enforcement action is taken, or if
any settlement or consent decree under section 106 is entered into,
and if such action, settlement or decree differs in any significant
respects from the final plan, the Administrator is required to pub-
lish an explanation of the significant differences and the reasons
such changes were made.
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The term "publication" includes, at a minimum, publication in a
major local newspaper of general circulation. In addition, the
House amendment requires that each item developed, received,
published, or made available to the public pursuant to this amend-
ment must be available for public inspection and copying at or
near the facility in question.
The House amendment authorizes the Administrator, in accord-
ance with rules promulgated by the Administrator, to make techni-
cal assistance grants available to any group of persons that may be
affected by a release or threatened release at any facility listed on
the National Priorities List. The purpose of these grants is to
enable the group to obtain technical assistance to review and assess
data and information that has been prepared by the Administrator
and that is required to be published under the previously described
requirements of this amendment.
These grants may not exceed $25,000 for a single recipient,
unless the Administrator waives this limit. The Administrator may
waive this dollar limit in any case where such a waiver is neces-
sary to carry out the purposes of this subsection on grants.
Conference substitute—The conference substitute adopts the
House amendment's provisions on public participation, with some
modifications. One such modification is the explicit statement that
a State or the President is required to keep a transcript of the
public meeting pursuant to section 117(a)(2) and to publish the ex-
planation of significant differences between the final plan and any
remedial action, settlement, or decree as required by section 117(c).
In the House amendment, only the Administrator was explicitly
made subject to these requirements.
The conference substitute adopts a combination of the House and
Senate provisions establishing a technical assistance grants pro-
gram for use at National Priorities List sites. This program is to be
a regular part of the Superfund program, and the President shall
not refuse to fund the technical assistance grants program, or any
specific application for a grant, on the ground that there has been
no specific line item appropriation. The conference substitute
adopts the Senate amendment's statement that the grants may be
used for technical assistance in interpreting information with
regard to the nature of the hazard, remedial investigation and fea-
sibility study, record of decision, remedial design, selection, and
construction of remedial action, operation and maintenance, or re-
moval action at such facility. Such grants are not intended to be
used to underwrite legal actions. However, any information devel-
oped through grant assistance may be used in any legal action af-
fecting the facility, including any legal action in a court of law.
The conference substitute states that the grant amount may not
exceed $50,000 for a single grant recipient. As in the House amend-
ment, however, the President may waive this dollar limitation. The
conference substitute states that as a condition of the grant, each
recipient must contribute at least 20 percent of the total costs of
technical assistance for which the grant is made. This condition
may be waived by the President if the grant recipient demonstrates
financial need and that the waiver is necessary to facilitate public
participation in the selection of remedial action at the facility.
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The conference substitute states that not more than one grant
under section 117(e) may be made with respect to a single facility,
but the grant may be renewed to facilitate public participation at
all stages of remedial action. A recipient therefore is eligible for
multiple grant awards and can seek additional grants at each stage
of activity for which grants may be made, including, but not limit-
ed to, such stages as remedial investigation and feasibility study,
remedial design, or other appropriate stages.
SECTION 118—MISCELLANEOUS PROVISIONS
HIGH PRIORITY FOR DRINKING WATER SUPPLIES
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment adds a new section
118 to CERCLA that would require the Administrator to give high
priority to facilities where the release has resulted in the closing of
drinking water wells or has contaminated a sole or principal drink-
ing water source designated under the Safe Drinking Water Act.
Conference substitute—The conference substitute adopts the
House amendment with a minor modification. The phrase "a sole
or principal drinking water source under the Safe Drinking Water
Act" has been replaced with the phrase "a principal drinking
water supply" in order that the EPA Administrator not be con-
strained in implementing this provision to existing interpretations
of "sole or principal drinking water sources" under the Safe Drink-
ing Water Act.
RADON-CONTAMINATED SOIL
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains a provision
directing the EPA Administrator to make a $7.5 million grant from
Superfund at a 100 percent Federal share to the State of New
Jersey for the transportation and temporary storage of radon con-
taminated soil.
Conference substitute—The conference substitute adopts the
House provision. The conferees intend that no action be taken
beyond temporary storage of these materials without full and com-
plete opportunity for public notice and comment, including con-
cerned persons in nearby States. Action under this section is sub-
ject to sections 117 and 121.
UNCONSOLIDATED QUATERNARY AQUIFER
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains a provision
prohibiting any person from locating a landfill over the Unconsoli-
dated Quaternary Aquifer, or placing solid waste in a landfill over
such aquifer.
Conference substitute—The conference substitute adopts the
House provision.
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SKILLED PERSONNEL STUDY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House, amendment—The House amendment contains a provision
directing the Comptroller General to conduct a study of the prob-
lem of shortages of skilled personnel in EPA to carry out response
actions under CERCLA.
Conference substitute—The conference substitute adopts the
House provision with minor modifications.
NONAPPLICABILITY OF STATE REQUIREMENTS
Senate amendment—The Senate amendment contains no compa-
rable provison.
House amendment—The House amendment contains a provision
limiting the applicability of State and local requirements to certain
transfers.
Conference substitute—The conference substitute adopts the
House provision with the clarification that the provision applies
only to waste materials from the McColl Site in Fullerton, Califor-
nia.
LEAD POISONING STUDY
Senate amendment—Section 121 of the Senate amendment con-
tains a provision directing the Administrator of the Agency for
Toxic Substances and Disease Registry, in consultation with the
EPA Administrator, to submit a report on the nature and extent of
lead poisoning in children from environmental sources.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute adopts the
Senate provision with minor modifications.
FEDERALLY LICENSED DAMS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section 101 of the House amendment con-
tains a provision which would effectively amend the definition of
"Owner and operator" in CERCLA to exclude certain federally li-
censed dams.
Conference substitute—The conference substitute adopts the
House provision with a clarification that the provision applies only
to the Milltown Dam in the State of Montana.
COMMUNITY RELOCATION
Senate amendment—Section 105 of the Senate amendment con-
tains a provision amending the CERCLA definition of the terms
"remove" and "removal" to include certain costs with respect to
community relocation.
House amendment—The House amendment contains no compara-
ble provision.
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Conference substitute—The conference substitute adopts the
Senate provision with minor modifications, including a limitation
expressly restricting the applicability of the provision to any dioxin
site in Missouri at which a decision as to temporary or permanent
relocation has been made or is under active consideration as of the
date of enactment of the Superfund Amendments and Reauthoriza-
tion Act of 1986. These sites include: Quail Run, Minker Stout/Ro-
maine Creek, Piazza, Castlewood and Times Beach.
LIMITED WAIVERS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section 121 of the House amendment con-
tains a provision authorizing a State, if certain conditions are met,
to waive any permit requirements under subtitle C of the Solid
Waste Disposal Act which would otherwise be applicable in the
case of remedial actions specifically involving mobile incinerator
units.
Conference substitute—The conference substitute adopts the
House provision with several modifications, including (1) a require-
ment that the EPA Administrator approve the waiver, and (2) a
limitation expressly restricting the applicability of the provision to
the State of Illinois.
JOINT USE OF TRUCKS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section 216 of the House amendment con-
tains a provision requiring the EPA Administrator, in consultation
with the Secretary of Transportation, to conduct a study on trucks
used for transportation of both hazardous and non-hazardous mate-
rials.
Conference substitute—The conference substitute adopts the
House provision.
RADON ASSESSMENT AND MITIGATION
(For a discussion of the provisions relating to radon assessment
and mitigation, see the portion of the Statement of Managers relat-
ing to title IV of the bill.)
GULF COAST HAZARDOUS SUBSTANCE RESEARCH, DEVELOPMENT, AND
DEMONSTRATION CENTER
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute contains a pro-
vision directing the EPA Administrator to establish a hazardous
substance research, development, and demonstration center in Jef-
ferson County, Texas, for the purpose of conducting research to aid
in more effective hazardous substance response and management
throughout the Gulf Coast. It is the intent and expectation of the
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Conferees that the Center be located at Lamar University in Beau-
mont, Texas. Funds under section 311 of CERCLA may be used to
carry out this provision. In order to carry out the purposes of this
Center, the Center can make grants, accept contributions, and
enter into agreements with universities located in Texas, Louisi-
ana, Mississippi, Alabama, and Florida. In carrying out its respon-
sibilities, the Center is not limited to working with universities; it
may also negotiate arrangements with Federal and State agencies
and industry.
RADON PROTECTION
Senate amendment—Section 156 of the Senate amendment con-
tains a provision expressing the sense of Congress that the Presi-
dent, in selecting response actions for facilities on the NPL, may
use innovative and alternative methods which protect human
health and the environment.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute adopts the
Senate provision.
SPILL CONTROL TECHNOLOGY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute contains a pro-
vision authorizing the Department of Energy's Office of Fossil
Energy to develop, implement and manage a research and develop-
ment program, and a testing and evaluation of response technol-
ogies program related to hazardous substance spills. These pro-
grams are to use the Liquefied Gaseous Fuels Spill Test Facility at
the Frenchman Flat site.
The Conferees took this action after learning of the unique capa-
bilities and the strong support the Department of Energy has for
this site. At the same time, the Conferees are concerned that this
user-sponsored facility may be vastly under-utilized when there are
no formal industry commitments to use the facility.
Because the site has the potential to assist other hazardous sub-
stance related research, testing and evaluation activities, the Con-
ferees believe that the Department of Energy's Office of Fossil
Energy should, to the extent practicable, coordinate with the U.S.
Environmental Protection Agency's Office of Emergency and Re-
medial Response and the Department of Transportation. In addi-
tion, the Department of Energy is directed to enter into contracts
and grants with a non-profit organization in Albany County, Wyo-
ming. It is the intent and expectation of the Conferees that the De-
partment of Energy enter into grants and contracts with the West-
ern Research Institute to provide the necessary technical and ana-
lytical support.
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PACIFIC NORTHWEST HAZARDOUS SUBSTANCE RESEARCH, DEVELOPMENT,
AND DEMONSTRATION CENTER
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute contains a pro-
vision directing the EPA Administrator to establish a hazardous
substance research, development, and demonstration center for the
purpose of conducting research to aid in more effective hazardous
substance response in the Pacific Northwest. It is the intent and
expectation of the Conferees that the Center be located at the Bat-
telle Memorial Institute Laboratories in Benton County, Washing-
ton, and Clallam County, Washington. In carrying out its responsi-
bilities, the Center is not limited to working with universities; it
may also negotiate arrangements with Federal and State agencies
and industry. In addition, the EPA Administrator and the Secre-
tary of Energy are authorized to enter into interagency agreements
with one another for the purpose of providing research into alter-
native and innovative technologies to characterize and assess the
nature and extent of hazardous waste (including radioactive mixed
waste) contamination at the Hanford site in the State of Washing-
ton.
SILVER CREEK TAILINGS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute contains a pro-
vision which has the effect of removing the Silver Creek Tailing
site in Utah from the list of sites recommended for inclusion on the
NPL, unless the President determines, upon specific site data not
used in the proposed listing of such site, that the site meets the re-
quirements of the Hazard Ranking System or any revised Hazard
Ranking System.
SECTION 119—RESPONSE-ACTION CONTRACTORS
Senate amendment—The Senate amendment contains two provi-
sions directly related to the status of contractors who are engaged
by Federal or State governments for the purpose of undertaking re-
sponses under CERCLA.
The first of these two provisions is section 104 of the Senate
amendment, which proposes to amend the definition of "owner or
operator" contained in section 101(20) of CERCLA. The definition
would be modified to exclude response-action contractors from li-
ability under CERCLA except to the extent that there is a release
"primarily caused by the activities of such person."
The second provision is section 152 of the Senate amendments,
which deals with the circumstances under which contractors would
be indemnified for liability which might arise under State law or
Federal laws other than CERCLA. Section 152 mandates indemnifl-
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cation against damages arising from the application of a strict li-
ability standard and authorizes indemnification for damages aris-
ing based on a negligence standard.
The Second Senate amendment contains no provisions relating to
contractor competition and does not preempt State law with re-
spect to contractor liability.
House amendment—The House amendment contains provisions
directly related to the liability and indemnification of response
action contractors under both Federal and State laws, as well as
one dealing with contractor competition. The term "response action
contractor" as used in this section for both liability and indemnifi-
cation purposes, covers any contractor who provides any "evalua-
tion, planning, engineering, surveying and mapping, design, con-
struction, equipment, or any ancillary services thereto for such fa-
cility".
Section 119 of the House amendment eliminates liability under
any State or Federal law for damages resulting from the non-negli-
gent actions of response action contractors. It also authorizes, in
subsection (c), the indemnification of such contractors in the event
they are held liable for negligence, provided certain enumerated re-
quirements are met. Subsection (f), relating to competition among
contractors, prohibits denial of the right to bid on response action
contracts on the grounds of certain Federal requirements which
might otherwise be applicable.
Conference substitute—The conference substitute adopts the
House amendment with modifications.
The first modification to new subsection 119 provides that re-
sponse action contractors shall not be liable except for their own
negligence under CERCLA or any other Federal law for injuries,
costs, damages, expenses, or other liability for any release or
threatened release of a hazardous substance, pollutant or contami-
nant with respect to which it is a response action contractor. How-
ever, this section does not affect the liability of any person under
any warranty under Federal, State, or common law.
For purposes of Federal law, and in recognition of the inability of
contractors to obtain insurance in the current market as well as
their essential role in responding to releases caused by others, the
conference substitute provides a standard of liability based on neg-
ligence. Liability which might arise under non-Federal laws, how-
ever, is untouched by the conference substitute. The existing stand-
ard of liability for responsible parties under CERCLA is main-
tained. The conferees hope that this amendment will induce States
to deal with the question of liability within their own borders. The
conferees urge States to take note of the Federal standards and
review their own standards of liability.
The President, under specific circumstances and subject to re-
quirements as set forth in the House amendment, may enter into
indemnification agreements with response action contractors for li-
ability due to negligence. Indemnification may not be provided,
however, for liability arising out of the application of a standard of
strict liability. The President shall not set limits and deductibles
for indemnification under this provision so that they are at such
unreasonable levels so as to make the indemnification agreement
worthless.
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The costs of indemnification are costs of response for purposes of
CERCLA, and thus are costs recoverable under CERCLA. Under
subsection 119(d) a responsible party may not be considered a re-
sponse action contractor with respect to a release for which it is
potentially liable under section 107. This constraint applies to both
liability and indemnification. Also, responsible parties are barred
from raising the third-party defense contained in section 107(bX3)
in cases where the release resulted from the acts or omissions of a
response action contractor.
As a general rule, the President shall not participate directly in
the defense of response action contractors in actions for claims sub-
ject to indemnification under this provision. However, the Presi-
dent retains the right to control the defense and settlement actions
subject to indemnification agreements. In deciding whether to par-
ticipate in such defenses, the President shall avoid any situation
which places the executive branch in a conflict of interest in de-
fending such suits.
The selection of response action contractors is subject to the ge-
neric requirements of otherwise applicable Federal selection proce-
dures when such contracts are negotiated by Federal agencies.
SECTION 120—FEDERAL FACILITIES
Senate amendment—The Senate amendment reaffirms that
except for any requirements relating to bonding, insurance, or fi-
nancial responsibility, all provisions of CERCLA applicable to pri-
vate facilities are applicable to Federal agencies in the same
manner and to the same extent.
The Senate amendment requires the Administrator to establish a
special Federal Agency Hazardous Waste Compliance Docket con-
taining all information submitted under Section 3016 of the Solid
Waste Disposal Act and notice of each subsequent action taken
under this Act with respect to the facility. Periodic updates of the
Docket are required every three months by publication in the Fed-
eral Register.
The Administrator must assure that a preliminary assessment is
conducted for each facility on the Docket within eighteen months
after enactment. Where appropriate, following the preliminary as-
sessment, the Administrator must complete the evaluation and list-
ing of such facilities on the National Priorities List within twenty
months after date of enactment.
Within six months after inclusion on the National Priorities List,
each agency is to enter into an agreement with the Administrator
and appropriate State authorities under which the agency will
carry out a remedial investigation and feasibility study for the fa-
cility no later than six months after completion of the RIFS. The
Administrator is required to enter into an agreement with each
agency providing a schedule for the expeditious cleanup of the fa-
cility. The Senate amendment provides that substantial continuous
physical on-site remedial action must be commenced at such facili-
ty which is the subject to an agreement within twelve months after
completion of remedial design.
The Senate amendment also provides that unless the Adminis-
trator has entered into a memorandum of understanding with the
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head of a Federal agency, the concurrence of the Administrator
shall be required for the selection of appropriate remedial action
and the administrative order authorities of Section 106(a) are dele-
gated to the Administrator.
Each agency is required to complete cleanup as expeditiously as
practicable after the date of the interagency agreement and to in-
clude in its annual budget submissions to the Congress a request
for funding adequate to complete cleanup, and a review of alterna-
tive agency funding which could be used to provide the costs of
cleanup.
The contents of each interagency agreement shall include a
review of alternative remedial actions and selection of a remedial
action plan by the Administrator, a schedule for completion, and
arrangements for long-term operation and maintenance.
The Senate amendment requires that following approval of an
agreement between the Administrator and another potentially re-
sponsible party to properly perform a remedial investigation and
feasibility study or remedial action at the Federal facility within
the prescribed deadlines, such agreement must be entered in the
appropriate United States district court as a consent decree under
Section 106 of this Act.
The Senate amendment explicitly provides for State and local
participation in the planning, formulation and selection of the re-
medial action by the Administrator at Federal facilities.
The President may exempt any facility from compliance with
guidelines, rules, regulations, or criteria if he determines it is in
the paramount interest of the United States. No such exemption
shall be granted due to lack of appropriation unless the President
shall have specifically requested such appropriation as part of the
budgetary process and the Congress has failed to make available
the requested appropriation.
The Senate amendment provides the authority for the head of
each agency to compromise or settle any claim or demand under
this Act arising out of activities of his agency, where such settle-
ment is $25,000 or less.
House amendment—The House amendment provides that each
Federal agency is subject to and must comply with this Act. It also
provides that, except for financial responsibility requirements, all
guidelines, rules, regulations and criteria applicable to preliminary
assessments, to evaluations pursuant to the National Contingency
Plan, to inclusion on the National Priorities List, and to remedial
actions at facilities where hazardous substances are located shall
also be applicable to facilities which are owned or operated by the
Federal government. State laws concerning removal or remedial
actions are made explicitly applicable to response actions undertak-
en at facilities owned or operated by the Federal government
which are not on the National Priorities List.
The Administrator must establish a special Federal Agency Haz-
ardous Waste Compliance Docket for each department, agency, or
instrumentality of the United States. The Docket is required to
contain information submitted by each Federal agency under Sec-
tion 103 of this Act, Sections 3005 or 3010 of the Solid Waste Dis-
posal Act, and the inventory required by Section 3016 of that Act,
including information on off-site contamination. Periodic updates of
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the Docket are required every six months by publication in the
Federal Register.
The Administrator is required to evaluate each facility included
in the Docket not later than January 31, 1987, where such evalua-
tion is warranted on the basis of a site inspection or preliminary
assessment. Any State Governor can obtain an evaluation of any
facility included in the Docket. Facilities meeting the criteria for
inclusion on the National Priorities List must be included within
twelve months after evaluation.
For any facility listed on the National Priorities List, a remedial
investigation and feasibility study must be commenced by the Fed-
eral agency, in consultation with the Administrator, within six
months. Thereafter, within 180 days of completion of the RIFS, the
head of the Federal agency must enter into an interagency agree-
ment with the Administrator for expeditious completion of all nec-
essary remedial action. Commencement of substantial continuous
physical on-site remedial action is mandated at each facility not
later than fifteen months after completion of the investigation and
study.
The contents of each interagency agreement shall include a
review of alternate remedial actions and selection of a remedial
action plan by the Administrator, a schedule for completion, and
arrangements for long-term operations and maintenance.
The Administrator is required to publish regulations within
eighteen months requiring notice of hazardous substance storage,
release, or disposal activities on property transferred by the Feder-
al government and deeds transferring real property owned by the
United States must contain certain covenants and other informa-
tion.
The House amendment affirms that the corrective action re-
quirements of the Solid Waste Disposal Act apply to Federal facili-
ties and nothing in this section affects the obligation of Federal
agencies to comply with such requirements.
To protect the national security interests at a Department of De-
fense or Department of Energy facility, the President is authorized
to grant an exemption from any requirement of certain titles of the
Superfund Amendments and Reauthorization Act of 1986 which
may not exceed one year per issuance. Notification must be provid-
ed to the Congress within thirty days of the President's issuance of
an exemption order. Requirements of the Atomic Energy Act con-
cerning the handling of restricted data and national security infor-
mation are made applicable to the grant of access to classified in-
formation.
Certain Department of Energy facilities in the State of Missouri
were provided a limited exemption from the requirements of Sec-
tion 120 where a response action plan was under development.
Conference substitute—The conference substitute adopts provi-
sions from both the House and Senate amendments.
The conference substitute adopts the House provision requiring
the application of the Act to the Federal government with the
modification that the subsection not apply to requirements pertain-
ing to bonding, insurance, or financial responsibility.
This provision clarifies that all guidelines, rules, regulations and
criteria promulgated pursuant to CERCLA must be complied with
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by all Federally-owned or operated facilities unless specifically ex-
empted by this Act. Federal agencies must comply with all proce-
dural and substantive provisions of the National Contingency Plan.
The conference substitute adopts the Senate amendment estab-
lishing the Federal Agency Hazardous Waste Compliance Docket
modified by House language adding information submitted by each
agency under Sections 3005 or 3010 of the Solid Waste Disposal Act
and under Section 103 of this Act, as well as information on off-site
contamination under Section 3016 of SWDA. Following notification
under Section 103, where the EPA Administrator concurs that a re-
sponse to source, special nuclear or by-product material (as defined
by the Atomic Energy Act) is being conducted in accordance with
the National Contingency Plan under other Federal statutues,
docketing under subsection (c) is not required.
Periodic updates of the docket are required every six months as
provided in the House amendment.
The conference substitute adopts the Senate amendment relating
to assessment and evaluation modified to apply to the entire docket
and substituting thirty months in lieu of twenty months as the
time frame for completion of evaluation and listing. The provision
requires placement of all qualifying Federal facilities on the Na-
tional Priorities List no later than 30 months after the date of en-
actment. This deadline is intended to be an outside limit and to es-
tablish the latest date on which facilities can be listed. Federal
agencies and departments, working in conjunction with EPA,
should make every effort to propose and list facilities in install-
ments as soon as possible during the 30-month period, as the facili-
ties are evaluated under the Hazard Ranking System.
The conference substitute includes House language requiring the
Administrator to conduct an evaluation of any facility included in
the docket upon petition from the Governor of any State. The eval-
uation criteria for Federal facilities are to be applied in the same
manner as for private facilities.
The conference substitute adopts the House provision, which
mandates the commencement of a remedial investigation and feasi-
bility study not later than six months after listing on the National
Priorities List, modified to require consultation with appropriate
State authorities. The conference substitute also adopts the House
provision relating to commencement of remedial action requiring
an interagency agreement within 180 days and mandates com-
mencement of substantial continuous physical on-site remedial
action at each facility not later than 15 months after completion of
the remedial investigation and feasibility study. The Senate provi-
sion requiring completion of remedial action with conforming modi-
fications is adopted.
The House and Senate provisions both contain language requir-
ing that the contents of the interagency agreement include a
review of alternative remedial actions and selection of a remedial
action plan by the Administrator. This provision is modified by the
conference substitute to provide for the joint selection of the reme-
dial action by the head of a Federal agency and the Administrator,
with the Administrator having the ultimate selection authority in
case of disagreement.
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Responsibility for selection of a remedial action is shared by the
head of the relevant department, agency, or instrumentality and
the Administrator. However, the Administrator has the additional
responsibility to make an independent determination that the se-
lected remedial action is consistent with the National Contingency
Plan and is the most appropriate remedial action for the affected
facility. The Administrator is required to select the remedial action
where there is disagreement.
A site-specific Record of Decision (ROD) signed by the Adminis-
trator and the relevant Federal department or agency can be used
to meet the requirements of this section regarding a site-specific
interagency agreement (IAG) where such ROD incorporates a
review of alternative remedial actions and selection of the remedial
action, a schedule for completion of the remedial action, and pro-
vides for a long-term operation and maintenance of the facility.
These elements of the ROD are identical to those required by sub-
section (e)(4), and such a ROD would serve as the interagency
agreement.
The conference substitute adopts the Senate provision relating to
State and local participation modified to clarify that Federal agen-
cies are also subject to and must comply with the State participa-
tion requirements set forth in Section 121 (relating to cleanup
standards). The conference substitute includes the Senate provision
requiring settlements between the EPA Administrator and a pri-
vate potentially responsible party for a Federal facility cleanup to
be entered as a consent decree in the appropriate United States
District Court. The inter-agency agreements between the Adminis-
trator of the Environmental Protection Agency and the heads of
other Federal agencies are enforceable documents just as adminis-
trative orders under the Solid Waste Disposal Act and as such are
subject to the citizen suit and penalties provisions of the Superfund
Amendments and Reauthorization Act of 1986. Thus penalties can
be assessed against Federal agencies for violating terms of agree-
ments with the EPA Administrator.
This clarifies that CERCLA, together with RCRA, requires Feder-
al facilities to comply with all Federal, State and local require-
ments, procedural and substantive, including fees and penalties,
except as provided in section 121.
The House provision relating to property transferred by Federal
agencies and obligations of Federal facilities under the Solid Waste
Disposal Act is adopted by the conference substitute. In affirming
the applicability of the corrective action requirements of the Solid
Waste Disposal Act to Federal facilities, the conferees explicitly
refer to the requirements of Section 3004(u) as set forth in the En-
vironmental Protection Agency's recodification rule published on
July 15, 1985, and the interpretation signed by the Administrator
on February 11, 1986, and published in the Federal Register on
March 5, 1986. Federal facilities are subject to corrective require-
ments to the same extent as any facility owned or operated by pri-
vate parties and operate under the same property-wide definition
of facility.
Further, the conference substitute adopts the House provision re-
lating to site-specific national security exemptions conditioned by
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language in the Senate amendment relating to specific requests for
appropriations by the President.
The national security waiver should be applied only on a site-spe-
cific and instance-specific basis, and with appropriate restraint.
The waiver is intended to protect the legitimate national security
interests of the United States. The waiver was included—as it has
been in other major Federal environmental laws—because the De-
partments of Defense and Energy expressed concern that operation
of their facilities, vital to national security, could be seriously
interfered with, particularly in time of war and other national
emergencies. The national security waiver is not intended to rou-
tinely exempt response actions at Federal facilities from the public
health and environmental standards imposed under the Act. Fur-
thermore, the duration of the national security waiver is not in-
tended to continue beyond the time required to protect legitimate
national security interests. Such response actions should be con-
ducted in an expeditious and sound manner that provides protec-
tion of human health and the environment.
The conference substitute deletes the Senate provisions relating
to Federal agency settlements and memorandums of understanding
between the Administrator and the head of a Federal agency with
regard to selection of remedial actions.
The conference substitute retains the limited grandfather provi-
sion in the House amendment for certain Department of Energy fa-
cilities, but the requirements of this Act, including Sections 120
and 121, apply to all Federally-owned or operated facilities, includ-
ing those facilities for which a response action, remedial action
plan or other type of cleanup plan, in whole or part, is currently
under development.
All provisions of the Act relating to Federal facilities, including
the terms of interagency agreements and records of decisions, are
subject to the citizens suits provision.
The Administrator shall take into account the special ecological
and environmental missions of certain Federal land managers,
such as the Fish and Wildlife Service, when fulfilling the require-
ments of this section. The Administrator shall consider closely the
plans for remedial actions recommended by these Federal officials
to ensure that repsonse actions undertaken pursuant to this Act
are compatible with the ecological and environmental responsibil-
ities of these other Federal agencies.
The costs and expenses of the Administrator of the Environmen-
tal Protection Agency in overseeing the response activities at Fed-
eral facilities are reasonably necessary for and incidental to the im-
plementation of this Act and are payable under Section 111.
SECTION 121—CLEANUP STANDARDS
Senate amendment—The Senate bill amends section 104(c)(4) of
CERCLA to require that the President must select remedial actions
that, to the extent practicable, are in accordance with the NCP and
that provide for cost-effective response, taking into account the
total short- and long-term costs including operation and mainte-
nance. Remedial actions under sections 104 or 106 must attain a
degree of cleanup of hazardous substances, pollutants and contami-
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nants from the environment and control of further release at a
minimum that assures protection of human health and the envi-
ronment. Remedial actions must be relevant and appropriate under
the circumstances presented. Remedial actions involving perma-
nent treatment are preferred over those not involving treatment,
and off-site transport and disposal without treatment is the least
favored alternative. No RCRA or Clean Water Act permit is re-
quired for the portion of any response action conducted entirely on-
site, if done in compliance with this paragraph. The Fund-balanc-
ing provision of section 104(c)(4) is continued in new subparagraph
(E). Under sections 114(a) and 302(d) of CERCLA, more stringent
State standards and permit requirements apply to facilities that
are the subject of remedial actions selected under these provisions.
House amendment—The House amendment adds a new section
121 to CERCLA governing the selection of remedial actions under
sections 104 and 106. Under this new section, remedial actions
must be cost-effective, in accordance with the NCP, and require
that level or standard of control of each hazardous substance or
pollutant or contaminant at the facility that is necessary to protect
human health and the environment. The Administrator must, to
the maximum extent practicable, select permanent solutions, and if
such a permanent solution is not feasible, the facility must be
placed in a separate category of the NPL and reviewed no less fre-
quently than every 5 years to determine if a permanent solution
has become available and whether the existing remedy continues
to protect human health and the environment. If permanent solu-
tions are not feasible for particular sites, the Administrator is to
consider containment in above-ground engineered structures. The
Administrator is required to assess the long-term effectiveness of
various alternatives, including permanent solutions, taking into ac-
count specified factors, and remedial actions involving treatment.
are preferred.
For hazardous substances, pollutants and contaminants which
remain on-site, the House amendment requires that remedial ac-
tions must require a level or standard of control which is at least
equivalent to a legally applicable or relevant and appropriate
standard under the Toxic Substances Control Act, the Safe Drink-
ing Water Act, the Clean Air Act, the Clean Water Act, or the
Solid Waste Disposal Act or water quality criteria under the Clean
Water Act. The Administrator is also required to consider any tol-
erance level established under the Federal Food, Drug, and Cosmet-
ic Act. More stringent State standards also must be met, in accord-
ance with a specified procedure. Remedial action involving contain-
ment must comply with the standards applicable to facilities re-
quired to obtain permits under subtitle C of the Solid Waste Dis-
posal Act.
Material transferred off-site must be transferred to a facility op-
erating in physical compliance with a RCRA or TSCA permit, to be
placed in a unit that is not releasing any hazardous waste or con-
stituent thereof into groundwater or surface water, and where any
releases at other units at the facility are being controlled by a cor-
rective action program approved by the Administrator.
The House amendment authorizes the Administrator to waive re-
quirements under other Federal and State laws applicable to reme-
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dial actions under section 121(g), in specified cases: an alternative
remedial action will provide protection of human health and the
environment substantially equivalent to the remedial action neces-
sary to comply with such requirements; compliance with such re-
quirements will result in greater risk to human health and the en-
vironment than alternative options; compliance with such require-
ments is technically impracticable from an engineering perspective;
compliance will consume a disportionate share of the Fund (the
Fund-balancing test of current law); or compliance will cost private
parties substantially more than the Fund would pay if the Fund-
balancing test were applied. Waivers cannot result in the violation
of the Clean Water Act, the Marine Protection, Research, and
Sanctuaries Act, the Clean Air Act, or the Safe Drinking Water
Act.
On-site remedial actions do not require permits other than under
the Cban Air Act, the Clean Water Act, the Safe Drinking Water
Act, and State groundwater laws. Removal actions under emergen-
cy circumstances do not require permits.
The House amendment sets out a detailed procedure through
which State permit requirements and State substantive standards
will apply to remedial actions selected under this Act. Separate
provisions deal with State concurrence or nonconcurrence at Fund-
financed sites, Federal facilities, and sites involving action under
section 106.
New section 121(k), added by the House amendment, requires re-
medial action involving treatment of dioxins or dibenzofurans to
meet specified requirements. New subsection (1) requires the Ad-
ministrator to use value engineering review in evaluating the cost
effectiveness of a response action projected to cost more than
$4,000,000. New subsection (m) authorizes a State to waive the
permit requirements of RCRA for mobile incinerator units involved
in onsite remedial actions.
Conference substitute—The conference substitute adds a new sec-
tion 121 governing the selection of remedial actions under sections
104 and 106. Under this new section, remedial actions must assure
protection of human health and the environment, and must be in
accordance with this new section, in accordance with the NCP, to
the extent practicable, and cost effective taking into account the
short- and long-term costs including operation and maintenance.
The provision that actions under both sections 104 and 106 must
be cost-effective is a recognition of EPA's existing policy as em-
bodied in the National Contingency Plan. The term "cost-effective"
means that in determining the appropriate level of cleanup the
President first determines the appropriate level of environmental
and health protection to be achieved and then selects a cost-effi-
cient means of achieving that goal. Only after the President deter-
mines, by the selection of applicable or relevant and appropriate
requirements, that adequate protection of human health and the
environment will be achieved, is it appropriate to consider cost ef-
fectiveness.
Remedial actions involving permanent treatment are preferred
over those not involving such treatment, and off-site transport and
disposal without such treatment is the least favored alternative.
The President must assess the long-term effectiveness of various al-
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ternatives, including permanent solutions and alternative treat
ment technologies, taking into account specified factors, and mus
select remedial actions that utilize permanent solutions and alter
native treatment technologies to the maximum extent practicable
If the President does not select such a remedial action, the Presi
dent must publish an explanation. The President may select a re
medial action involving a permanent solution or alternative treat
ment technology whether or not such an action has been achieve<
in practice at any similar site.
Under new section 121(c), the President must review any facility
at which any hazardous substance remains after a remedial action
no less often than every 5 years. If upon such review it is the judg
ment of the President that action is appropriate at the facility
under such section 104 or 106, the President must take such actior
or require a responsible party to take such action. The President ii
required to report to the Congress on what facilities require sue!
review and the results of such review.
New section 121(d) establishes the substantive standards that re
medial actions under sections 104 and 106 must meet. The genera
standard is that remedial actions must attain a degree of cleanuj
of hazardous substances, pollutants and contaminants released intc
the environment and of control of further release at a minimunr
that assures protection of human health and the environment. Foi
any material that will remain onsite, the remedial action must re
quire a level or standard of control that at least attains any legallj
applicable or relevant and appropriate—
standard, requirement, criteria, or limitation under any Fed-
eral 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 Protec-
tion, Research, and Sanctuaries Act, or the Solid Waste Dispos-
al Act;
more stringent promulgated standard, requirement, criteria.
or limitation under a State environmental or facility siting law
that has been identified to the President by the State in a
timely manner.
A remedial action must require a level or standard of control
that at least attains Maximum Contaminant Level Goals estab-
lished under the Safe Drinking Water Act and water quality crite-
ria established under section 303 or 304 of the Clean Water Act,
where such goals or criteria are relevant and appropriate. In deter-
mining whether water quality criteria are relevant and appropri-
ate, the President shall consider the designated or potential use of
the surface or groundwater, the environmental media affected, the
purposes for which the criteria were developed, and the latest in-
formation available.
The conference substitute restricts the use of any alternate con-
centration level process in the selection of remedial action. Under
new section 121(dX2)(B)(ii), an alternate concentration level process
cannot be used to modify or establish legally applicable standards
under this section (for example, a groundwater protection stand-
ard) if the process assumes a point of human exposure beyond the
facility boundary. The only exception is in cases of a known or pro-
jected point of entry of groundwater to which such a standard
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would apply, into surface water which is a reasonable distance
from the facility boundary. If at such points of entry, or at any
point downstream where accumulations of constituents may occur,
there will be no statistically significant increase of such constitu-
ents in the surface water from such groundwater, and there are en-
forceable measures that preclude human exposure at any point be-
tween the facility boundary and points of entry into surface water,
an alternate concentration level process may assume such points of
entry into surface water as the point of human exposure.
In developing projections that there will not be a statistically sig-
nificant increase of constituents from such groundwater and sur-
face water either at the point of entry or at any point where there
is reason to believe accumulation of constituents may occur down-
stream, there must be sufficient background data developed, in con-
junction with the conduct of the remedial investigation/feasibility
study, for both the point of entry and at any point where there is
reason to believe accumlation of constituents may occur down-
stream, to allow a determination of whether the projected increase
is greater than the 95 percent confidence limit for concentrations
in surface water. In making such determinations for potential accu-
mulations downstream, the President shall take into account the
ability of the constituents to degrade, and areas along shorelines,
areas of standing water, and biota where such constituents may be
expected to settle out or accumulate. Measurements and projec-
tions shall not be based solely on annual averages, but the follow-
ing shall also be considered as appropriate: seasonal surface water
conditions; natural cycles and ambient conditions; flow, stream
width, and stream depth; and the surface to groundwater relation-
ship.
This section, sanctioning the use of an alternate concentration
limit process that assumes points of exposure beyond the facility
boundary, is limited to cleanup under CERCLA in which surface
water is a reasonable distance from the facility boundary. This sec-
tion does not address the use of alternate concentration limit proc-
esses under other environmental laws.
Under the new section 121(d)(2XC), a State standard, require-
ment, criteria, or limitation that could effectively result in the
statewide prohibition of land disposal of hazardous substances will
not apply, if certain conditions exist. First, the President must
comply with subsection (b). Second, even after compliance with sub-
section (b), the President must have proposed a remedial action
that does not involve permanent treatment and for which the pro-
posed disposition of waste from the remedial action is land disposal
within such State. In that case, the State standard will apply if it
is of general applicability and formally adopted, based on hydrolog-
ic, geologic, or other relevant considerations (and not adopted for
the purpose of precluding onsite remedial actions or other land dis-
posal for reasons unrelated to protection of human health and the
environment), and the State arranges for, and assures payment of
the incremental costs of using, an alternative facility for disposi-
tion of such materials. Clause (iv) requires the President to con-
form the remedial action at the Picillo Pig Farm site, Rhode Island,
to the State standard.
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While the requirements of subparagraph (C) create circum-
stances under which State requirements may be avoided, it does
not establish a system of preemption. Nor does the subparagraph
restrict the right of a State to undertake a clean-up or to recover
the costs of the clean-up under State law or CERCLA. If a State
chooses to undertake a response action pursuant to a State stand-
ard, requirement, criteria, or limitation that would not apply to a
remedial action proposed by the President as a result of subpara-
graph (C), such action by the State shall not be interpreted or con-
strued to be inconsistent with the National Contingency Plan for
the purpose of section 107 of this Act solely as a result of the provi-
sions of subparagraph (C).
Under new section 121(d)(3), material transferred offsite must be
transferred to a facility operating in physical compliance with
RCRA (or where applicable, TSCA or other Federal law) and appli-
cable State requirements, including permitting requirements, to be
placed in a unit that the President determines is not releasing any
hazardous waste or constituent thereof into groundwater or surface
water or soil. In addition, the section requires that any releases at
other units at the facility are being controlled by a corrective
action program approved by the Administrator under subtitle C of
RCRA. The President must notify owners or operators of facilities
of any determination under this paragraph.
The response and remedial actions taken by EPA under this pro-
gram must be designed and carefully monitored to ensure that the
proposed solutions to today's problems do not create new, perhaps
more serious problems tomorrow. This is an especially important
responsibility when the waste material is removed to a land dispos-
al facility that, if improperly operated in violation of RCRA re-
quirements, could contaminate groundwater or surface water and
thereby present threats to human health and the environment.
The Managers expect that EPA shall initiate rulemaking within
180 days to implement the notice requirements of this provision.
The Managers further expect that the owner or operator of a facili-
ty will be provided with an opportunity to meet informally prior to
a final determination of eligibility except with regard to emergency
removal actions. The Administrator is expected to establish post-de-
termination procedures for resolving disputes related to determina-
tions made under subparagraphs (A) and (B). In implementing this
provison, the Agency should give appropriate consideration to the
significance of the violations, including Class I violations, as com-
pared with minor paperwork violations. Until the conclusion of
such rulemaking, the Administrator shall implement these provi-
sions on the basis of the statutory terms.
The addition of "soil" to the requirements of (d)(3)(A) is intended
to preclude the transfer or disposal of hazardous wastes or constitu-
ents thereof into unlined units and lined units with releases other
than de minimis releases into soil.
New section 121(d)(4) authorizes the President to select remedial
actions that do not attain a legally applicable or relevant and ap-
propriate standard, requirements, criteria, or limitation, as re-
quired by section 121(d)(2), in six circumstances—
the remedial action selected is only part of a total remedial
action that will comply when completed;
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compliance would result in greater risk to human health or
the environment than alternative options;
compliance is technically impracticable from an engineering
perspective;
the remedial action selected will attain a standard of per-
formance that is equivalent to that required under the other-
wise applicable requirement, through use of another method or
approach;
with respect to a State standard, requirement, criteria, or
limitation, the State has not consistently applied it to other re-
medial actions; or
in the case of a remedial action that is solely Fund-financed,
the proposed remedial action is inappropriate under the Fund-
balancing test of previous section 104(c)(4).
The President must make and publish findings of such circum-
stances, before selecting a remedial action not in compliance with
section 121(d)(2).
The conference substitute does not include as a circumstance in
which the President may select a remedial action that does not
conform to a State requirement, anything comparable to section
121(j)(4)(A) of the House amendment. Any State standard that has
been waived by a responsible State official pursuant to State law is
not a legally applicable or relevant and appropriate standard
within the meaning of this section.
With respect to the provision regarding inconsistent application
of State standards, this provision will apply both where the stand-
ard is not of general applicability or where the standard has not
been applied consistently by the State.
Subsection (d)(4XD) allows the selection of a remedial action that
does not comply with a particular Federal or State standard or re-
quirement of environmental law, where an alternative provides the
same level of control as that standard or requirement through an
alternative means of control. This allows flexibility in the choice of
technology but does not allow any lesser standard or any other
basis (such as a risk-based calculation) for determining the required
level of control. However, an alternative standard may be risk-
based if the original standard was risk-based.
New section 121(e) provides that no Federal, State, or local
permit may be required for response action conducted entirely
onsite, where such response action is selected and carried out in
compliance with section 121. States are given the authority to en-
force requirements of consent decrees to which the remedial action
must conform, in Federal district court. Consent decrees are to con-
tain dispute resolution and enforcement provisions, and may in-
clude administrative enforcement. Consent decrees must contain
stipulated penalties for violations of the decree of $25,000 per day,
enforceable by the President or the State.
New section 121(f) sets out the way in which States will be in-
volved in the selection of remedial actions. Paragraph (1) requires
regulations governing State participation, including notice to the
State of negotiations with potentially responsible parties and the
opportunity to participate in those negotiations and be a party to
any settlement. This latter requirement applies even in advance of
the promulgation of such regulations.
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New paragraph (2) provides that the President must give a State
at least 30 days notice if the President proposes to select a remedi-
al action under section 106 that does not attain a legally applicable
or relevant and appropriate Federal or State standard, require-
ment, criteria, or limitation under the authority of section 121(d)(4).
The State may concur in such selection and become a signatory to
the consent decree. If the State does not concur, the State shall in-
tervene in the section 106 action before entry of the consent decree.
If the State establishes, on the administrative record (to which it is
entitled to contribute), that the finding of the President under sec-
tion 121(d)(4) was not supported by substantial evidence, the court
shall order the remedial action conformed to such standard, re-
quirement, criteria, or limitation. If the court does not so modify
the remedial action, the State may assure payment of the incre-
mental costs of meeting such standard, requirement, criteria, or
limitation, and the remedial action (and consent decree embodying
it) will be so modified anyway.
The provisions of section 121(f)(3) apply to the selection of reme-
dial action at Federal facilities. The President must give a State at
least 30 days notice if the President proposes to select a remedial
action for a Federal facility that does not attain a legally applica-
ble or relevant and appropriate Federal or State standard, require-
ment, criteria, or limitation under the authority of section 121(d)(4).
If the State concurs in such selection, or fails to act within 30 days,
the remedial action may proceed. If the State does not concur, the
State may bring an action in Federal district court for the purpose
of determining whether the finding of the President under section
121(d)(4) is supported by substantial evidence. If the State estab-
lishes, on the administrative record, that the finding is not support-
ed by substantial evidence, the remedial action must be conformed
to such standard, requirement, criteria, or limitation. If the court
determines that the State has failed to establish that the finding
was not supported by substantial evidence, and the State within 60
days pays the incremental costs of meeting such standard, require-
ment, criteria, or limitation, the remedial action will be conformed
to the State's wishes. If the State fails to pay within 60 days, the
remedial action shall proceed.
Nothing in new section 121(f)(3) precludes the Federal agency
from taking remedial action unrelated to or not inconsistent with
the disputed standard, requirement, critera, or limitation, or gives
a court authority to enjoin such remedial action.
If the President determines that a permanent solution is not to
be utilized, the President may consider remedial actions in which
hazardous substances and pollutants and contaminants are secure-
ly contained in above-ground structures.
In addition, with respect to any remedial action which involves
treatment of chlorinated or halogenated dioxins or chlorinated or
halogenated dibenzofurans, the President shall require, to the max-
imum extent practicable, treatment that provides each of the fol-
lowing:
(a) A destruction and removal efficiency meeting or exceed-
ing 99.9999 percent.
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(b) A treatment process which minimizes accidental emis-
sions of chlorinated or halogenated dioxins, dibenzofurans, and
other highly toxic materials to the environment.
(c) Protection against emissions of any hazardous substance
or pollutant or contaminant into the air during normal oper-
ation and equivalent protection during nonsteady operations
including start-up, shut-down, and power failures.
(d) Protection against secondary formation of halogenated
dioxins and dibenzofurans.
This requirement does not apply if the President determines that
(1) an alternative method of treatment or disposal attains a stand-
ard of performance that is equivalent, or (2) there will be no
human exposure to the hazardous substance or pollutant or con-
taminant containing chlorinated or halogenated dioxins or chlorin-
ated or halogenated dibenzofurans.
SECTION 122—SETTLEMENTS
Senate amendment—The Senate amendment authorizes the
President to enter into settlement agreements with potentially re-
sponsible parties for the payment or conduct of remedial action.
This provision also requires, with enumerated exceptions, the
President to provide a non-binding preliminary allocation of re-
sponsiblity among all potentially responsible persons at a facility
and authorizes the President to issue subpoenas for information
needed to make allocations. If a responsible party or parties makes
an offer to provide for payment or the undertaking of remedial
action exceeding 50 percent of the total allocation and the offer
was equal to or greater than the cumulative shares of the parties
making the offer, a decision to reject such offer would be subject to
judicial review. The provision authorizes the two mandatory cov-
enants not to sue: for off-site transport in certain circumstances
and for permanent treatment or destruction of hazardous sub-
stances. Finally, the provision authorizes settlements with de mini-
mis contributors and provides for mixed funding.
House amendment—The House amendment confirms the author-
ity of the Administrator of EPA to enter into settlement agree-
ments with responsible parties regarding the clean-up of sites
where hazardous substances have been or are threatened to be re-
leased. This provision also establishes a moratorium on action to
clean up a site while negotiations are ongoing.
Additionally, the provision requires that settlements be incorpo-
rated in consent decrees which allow for public comment and judi-
cial review, with a further authorization that settlements for per-
formance of removal actions, for de minimis contributors, and for
certain cost recovery under section 107 may be incorporated in ad-
ministrative orders subject to a public comment period. The provi-
sion also authorizes the Administrator to grant covenants not to
sue if such covenants are in the public interest. Finally, the provi-
sion authorizes the Administrator to reach early settlements with
de minimis contributors and to agree to administrative settlements
of cost recovery actions and authorizes mixed funding.
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Conference substitute—The conference substitute adopts the
House provision with several modifications. The substitute also in-
corporates specific elements of the Senate amendment.
As set forth in section 122(a) of the substitute, the decision of the
President to undertake the settlement procedures set forth in this
section is discretionary. Thus, the Conferees modified the language
of section 122(a) to clarify this intent. The language used in this
subsection is now identical to the language of section 122(g) which
authorizes settlements with de minimis contributors. In both con-
texts, the decision to undertake the procedures set forth is in the
discretion of the President.
Section 122(a) is also modified to state that the decision to use
these procedures is not subject to judicial review. The purposes of
the settlement procedures set forth in section 122 are to expedite
settlements and to assure the effective clean-up of Superfund sites.
Nothing in this section diminishes the responsibility of or pre-
cludes the court from reviewing the lodged consent decree to deter-
mine whether relevant requirements of the Act have been met and
whether entry of the decree is in the public interest.
Section 122(b)(l), which addresses mixed funding for site response
actions, provides that the President, where appropriate and in the
public interest, may reimburse parties for certain costs of actions
under the agreement by using monies from the Fund on behalf of
parties who are unknown, insolvent, similarly unavailable, or
refuse to settle.
In cases of mixed funding, the President is to undertake actions
to impose the costs of the Fund obligations on non-settlors. Such
actions may be to seek reimbursement for expenditures already
made or to determine liability in advance of the actual incurrence
of costs. But in any case, the burdens of mixed funding should be
shifted to non-settlors, whether through reliance on the authorities
of this Act or other laws, unless it would be unreasonable to under-
take such efforts.
Section 122(b)(4), regarding future obligations of the Fund, re-
flects a compromise between the House and Senate provisions. It
was adopted as an additional incentive for the President to select
permanent remedies and thus avoid the circumstance where the
failure of a remedy would result in additional Fund expenditures.
It should also serve as a settlement incentive for private parties in
mixed funding cases, but the conferees strongly emphasize that
every effort should be made by the President to recover the obliga-
tion from non-settlors. In actual practice, this provision is intended
as a restraint and limit on the President's use of mixed-funding au-
thority.
The obligation of the Fund for future liability is limited to the
extent that subsequent remedial actions are necessary by reason of
the failure of the original remedial action. The parameters of Gov-
ernment future liability at a facility are to be defined by the provi-
sions of the consent decree which define the remedial action in-
volved. The obligation of the Fund for subsequent remedial action
applies only to that portion of the remedy which involved mixed
funding in the first instance. For any portion of the remedy which
did not involve mixed funding in the first instance there would be
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no obligation of the Fund for future remedial action under this pro-
vision.
Where in the course of the remedial action it becomes clear that
the remedial selection was based on incorrect information, making
the selection inappropriate, then the Government's portion of
future liability will be recalibrated as part of a new remedial selec-
tion.
Section 122(e) is modified by the conference substitute in several
ways. First, section 122(e) now requires the President, in certain
circumstances, to provide notice and an opportunity for private
parties to conduct the RI/FS when entering into negotiations
under this section. The notice need not be accompanied by informa-
tion on volume and nature of waste and ranking if this information
is not available at the start of the RI/FS. A separate notice and
information release should be provided for private parties who ac-
tually conduct the remedial action. Information on volume, nature
and ranking of wastes should be made available routinely at this
time. This section further provides that this disclosure provision is
subject to the other privileges and protections of law, including at-
torney work product. However, such other privileges and protec-
tions of law do not apply to disclosure of information generated by
the President to duly authorized Committees of Congress. At the
same time, this provision does not extinguish or diminish disclo-
sure requirements under other provisions of Federal or State Law.
Section 122(e)(2) is modified to preclude the President from con-
ducting the remedial investigation and feasibility study (RI/FS),
except as provided in section (e)(4), but not other studies or investi-
gations under section 104(b), for 90 days. Nothing in this section
precludes the President from initiating a remedial design during a
moratorium for negotiaitons for private party action where an RI/
FS has been completed.
Section 122(e)(3) is added by the conference substitute to require
the President to develop guidelines for the preparation of non-bind-
ing preliminary allocations of responsibility. The President's deci-
sion to prepare or not prepare a non-binding preliminary allocation
of responsibility (NEAR) at a facility is discretionary and therefore
not subject to citizens suits or judicial review. The President has
the discretion to allocate the total response costs among potentially
responsible parties as the President deems appropriate, including
parties for which the President is considering settlement agree-
ments under subsections (b) and (g) of section 122.
Section 122(e)(3)(B), incorporated in the conference substitute
from the Senate provision, authorizes the President to subpoena
such information as the President deems necessary for performing
an NEAR or to otherwise implement this section.
Section 122(e)(3)(C) prohibits the admission of NBARs in any pro-
ceedings, and section 122(e)(3)(D) requires that the costs of produc-
ing an NEAR be reimbursed by a potentially responsible party
whose settlement offer is accepted by the President. If the offer is
not accepted, such costs are considered costs of response for pur-
poses of sections 111 and 107.
Section 122(e)(3)(E) provides that when the President has issued a
non-binding preliminary allocation of responsibility, and a poten-
tially responsible party has made a substantial offer for a response
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action which the president rejects, the President shall provide a
written explanation of such rejection.
In implementing this provision, the President will establish
threshold percentage criteria governing situations when the expla-
nation needs to be provided. A substantial offer is one which repre-
sents a commitment by the potentially responsible parties to un-
dertake or finance a predominant portion of the total remedial
action. Any substantial offer must provide for response or costs of
response for an amount equal to or greater than the cumulative
total, under the NEAR, of the potentially responsible parties
making the offer. For a substantial offer to exist, all other terms
must be agreed to.
The President need provide not more than one explanation per
facility. The explanation shall be provided by the Administrator of
the Environmental Protection Agency, in consultation with the As-
sistant Attorney General for Land and Natural Resources, follow-
ing headquarters review in Washington. Due to the enforcement-
sensitive nature of NBARs, all such allocations must be prepared
solely by Federal employees.
Section 122(e)(6) is included in the conference substitute to clarify
that no potentially responsible party may undertake any remedial
action at a facility unless such remedial action has been authorized
by the President.
Section 122(f)(2)(A) incorporates from the Senate provision the re-
quirement for a mandatory covenant not to sue in a settlement
agreement where the President, in his sole discretion, has rejected
an on-site remedy that meets the requirements of section 121 and
the President has required that the hazardous substances be taken
off-site. The Conferees adopted the provision concerning a covenant
not to sue for off-site transport under certain circumstances, in the
context of new section 121 of CERCLA, relating to cleanup stand-
ards. Section 121(b)(l) provides that off-site transport and disposal
of hazardous substances or contaminated materials without treat-
ment should be the least favored remedial action where practicable
treatment technologies are available. Section 121(b)(l) also requires
that the President 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 technol-
ogies or resource recovery technologies to the maximum extent
practicable. The requirements of this section reflect the findings
and objectives of the Solid Waste Disposal Act, which find that cer-
tain classes of land disposal facilities are not capable of assuring
long-term containment of certain hazardous wastes. The special
covenant not to sue described in section 121(f)(2)(A) applies to the
hazardous substances which are transported to and disposed of
under the terms of the consent decree at a Solid Waste Disposal
Act facility that satisfies the specific requirements of the Solid
Waste Disposal Act and has received a final permit pursuant to
Section 3005 of the Solid Waste Disposal Act.
Section 122(f)(2)(B), adopted from the Senate provision, provides
for mandatory covenants not to sue when the hazardous substance
is permanently destroyed. For purposes of the section 122(f)(2XB)
special covenant not to sue, the term "such facility" means that
portion of the facility where the remedial action involving the
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treatment of hazardous substances so as to destroy, eliminate, or
permanently immobilize the hazardous constituents of such sub-
stances has occurred. When a covenant not to sue is issued under
this subparagraph (B) on the basis of application of treatment tech-
nologies involving "permanent immobilization" of hazardous sub-
stances or constituents of such substances, such technologies must
change the fundamental nature and character of such substances.
Placing the substance in a permanent storage container or other
containment method would not constitute a permanent immobiliza-
tion technology covered by this subparagraph.
The conference substitute deletes the House provision regarding
a potentially responsible party's ability to obtain a covenant not to
sue without a "reopener" for unknown conditions if that responsi-
ble party contributes to a "Groundwater and Surface Water Protec-
tion Fund" for any future problems at the facility. Instead, new
section 122(f)(6)(B) is added to require, except in extraordinary cir-
cumstances, reopeners for unknown conditions. The provision now
states that settlements shall not be granted without reopeners for
unknown conditions, except in extraordinary circumstances where
all other terms and conditions of the settlement agreement are suf-
ficient to protect health and the environment from any future re-
leases at or from the facility. This provision should be implemented
in a manner consistent with the current application of the Admin-
istration settlement policy as to unknown conditions. In addition,
section 122(fX6)(C) was added, also consistent with current settle-
ment policy, to state that "The President is authorized to include
any provisions allowing future enforcement action under sections
106 or 107 that in the discretion of the President are necessary and
appropriate to assure protection of the public health, welfare and
the environment."
As set forth in the discussion relating to section 122(a), the deci-
sion of the President to use the de minimis settlement procedures
under section 122(g) is discretionary.
Section 122(g) is further modified to clarify that the Attorney
General must give prior approval for administrative orders for set-
tlements where the total response costs at a facility are in excess of
$500,000. A comparable clarification, limiting the applicability of
the subsection to facilities where the total response action does not
exceed $500,000, was made to section 122(h)(l) and (2), regarding
cost recovery under section 107.
Section 122(m) is added to the conference substitute because
there are inconsistent provisions in the House and Senate versions
regarding the circumstances under which settlement agreements,
including covenants not to sue, could be set aside for reasons such
as fraud, misrepresentation, and mutual mistake of fact. All of
these provisions are combined in a single provision to avoid confu-
sion arising from the use of inconsistent language and to reflect
the Conferees' understanding that the general principles of law re-
garding the setting aside or modification of consent decrees or
other settlements will be applicable to all agreements and cov-
enants not to sue under the Act.
Finally, new section 122(n), as set forth in the conference substi-
tute, provides for the inclusion in section 308 of CERCLA of a sepa-
rability provision. This provision states that if the provision regard-
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ing contribution protection for those whose settlements are incor-
porated in administrative orders rather than consent decrees is
held unconstitutional, compensation for the amount of such contri-
bution may not be obtained from the United States.
SECTION 123—REIMBURSEMENT TO LOCAL GOVERNMENTS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment requires the Admin-
istrator to promulgate rules setting out procedures under which
the Administrator will reimburse units of local government for ex-
penses incurred in carrying out temporary emergency measures
necessary to prevent or mitigate injury to public health or the en-
vironment associated with the release or threatened release of haz-
ardous substances or pollutants or contaminants. The amount of
any reimbursement may not exceed $25,000 for a single response. A
cap for expenditures from the Superfund over a five-year period is
included.
Conference substitute—The conference substitute includes a modi-
fied version of the House amendment. Reimbursement under this
provision shall not include reimbursement for normal expenditures
that are incurred in the course of providing what are traditionally
local services and responsibilities, such as routine emergency fire-
fighting.
SECTION 124—METHANE RECOVERY
Senate amendment—The Senate amendment amends the defini-
tion of "owner or operator" contained in CERCLA to exclude a
person who owns or operates landfill gas recovery equipment from
the definition of "owner or operator" under certain circumstances.
In addition, the Senate amendment provides that, unless the Ad-
ministrator promulgates regulations under subtitle C of the Solid
Waste Disposal Act, the owner or operator of such equipment shall
not be deemed to be managing, generating, transporting, storing or
disposing of hazardous or liquid wastes under that subtitle. Howev-
er, if the condensate or other waste material removed from the
landfill meets the criteria of section 3001 of the Act, then it is
deemed to be a hazardous waste and regulated accordingly.
House amendment—The House amendment exempts landfill gas
operators from liability in actions under sections 106 or 107 and
State law for specified items. The exemption does not apply where
a release is caused by the negligence, gross negligence or intention-
al misconduct of the landfill gas operator. The House amendment
contains provisions similar to the Senate amendment addressing
the condensate that is produced with the recovery of gas.
Conference substitute—The conference substitute adopts the
Senate amendment with modifications. It provides a conditional ex-
emption from liability under the Act for persons who own or oper-
ate methane-recovery equipment. This exemption does not apply to
any release or threatened release if either the release or threat-
ened release was primarily caused by the activities of such owner
or operator, or the owner or operator otherwise would be liable
under Section 107 if such owner or operator were not the owner or
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operator of such equipment. The conference substitute adopts the
Senate provision addressing the condensate that is produced with
the recovery of gas.
SECTION 125—CERTAIN SPECIAL STUDY WASTES
Senate amendment—The Senate amendment to section 105 pro-
vides that, until the Hazard Ranking System is revised, special
study waste sites described in section 3001(b)(2)(B) or (3)(A) of the
Solid Waste Disposal Act may be listed on the National Priorities
List only if the Administrator makes findings based on facility-spe-
cific data. Liability for costs, damages, or penalties may only be im-
posed if specific findings have been made and the Administrrtor
supports those findings in court.
House amendment—The House amendment requires the Admin-
istrator to revise the Hazard Ranking System (HRS) as it applies to
facilities that contain substantial volumes of fly-ash and other
wastes discussed in section 3001(b)(3)(A)(i) of the Solid Waste Dis-
posal Act that relate to the combustion of coal or other fossil fuels
in a manner which assures appropriate consideration for site-spe-
cific characteristics of such facilities.
Prior to the completion of the required revision of the Hazard
Ranking System, the Administrator may not add to the NPL any
facility that contains waste described in section 3001(b)(3)(A)(i) of
the Solid Waste Disposal Act on the basis of an evaluation relying
principally on the volume of such waste and not on the actual con-
centrations of the hazardous constituents of such waste. Nothing in
this section affects EPA's authority to list or take other actions
under the Act at facilities based upon the presence of substances
other than waste described in section 3001(b)(3)(A)(i).
Conference substitute—The conference substitute adopts the
House amendment. Provisions dealing with other special study
wastes are discussed under section 105, supra.
SECTION 126—WORKER PROTECTION STANDARDS
Senate amendment—The Senate amendment makes two changes
to section lll(c)(6) of CERCLA, which authorizes an employee
training and protection program. First, the amendment directs the
Secretary of Labor to promulgate standards for health and safety
protection of employees engaged in emergency response and haz-
ardous waste operations. Second, the amendment provides that the
cost of training such employees, in an amount up to $10,000,000 per
year, is to be considered a permissible cost of the Section lll(c)(6)
program.
House amendment—The House amendment adds a new section to
CERCLA relating to worker protection standards. The Secretary of
Labor is directed to issue standards for the health and safety pro-
tection of employees, including State and local government employ-
ees, engaged in hazardous waste operations. Such standards must
include various general provisions to ensure worker protection.
Specifically, the standards must require that general site workers
receive at least 40 hours of initial instruction off the site and 3
days of actual field experience. In addition, the standards must re-
quire that supervisors directly responsible for the hazardous waste
62-966 0-86-9
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operations receive the same training as general site workers plus 8
additional hours of special training. The standards must also pro-
hibit untrained and uncertified persons from engaging in hazard-
ous waste operations. The House amendment further directs the
Secretary of Labor to issue interim final rules. In addition, it au-
thorizes the National Institute of Occupational Safety and Health
to award grants to nonprofit organizations for training and educat-
ing workers who are or will be engaged in hazardous waste remov-
al, containment, or emergency resonse operations; $10,000,000 mil-
lion per year from FY 86 through FY 90 are authorized to be ap-
propriated from the general fund of the Treasury for such grants.
Conference substitute—The conference substitute adopts the
House amendment, redrafted as a free-standing provision of law
rather than as an amendment to CERCLA, with changes.
The conference substitute deletes "including employees of State
and local governments" from subsection (a), but adds a new subsec-
tion (f), requiring SPA to promulgate a standard identical to the
OSHA standard, to be applied to State and local government em-
ployees in States without State OSHA programs. This substitute as-
sures that States which have OSHA approved plans retain the au-
thority to promulgate appropriate standards, while States without
OSHA approved plans follow EPA's promulgated standards. EPA
must promulgate the standard within 90 days of final promulgation
of the OSHA standard. The OSHA standard, not the EPA standard,
would apply to any State that adopts a State OSHA program subse-
quent to enactment of the bill.
The conference substitute also makes changes to address the
phasing-in of new regulatory requirements. The House amendment
is modified to specify that interim regulations will remain in effect
until one year after the promulgation of final regulations, at which
time the final regulations will take effect. Interim final regulations
will take effect within 60 days after this section's date of enact-
ment. The conference substitute also uses the term "promulgation"
for "issuance" in subsection (a) of the bill, "proposed standards" for
"minimum general requirements" in subsection (b), and "regula-
tions" for "rules" in subsection (d).
The conference substitute includes the addition of a new subsec-
tion addressing the extent to which final regulations must include
minimum general requirements. In proposing regulations, the Sec-
retary of Labor must include all of the requirements listed under
Section 126(b) of the House bill. After notice and comment on the
proposal, the Secretary must include all of these requirements in
the final plan unless the Secretary determines that the evidence in
the public record considered as a whole, does not substantiate in-
clusion of one or more of the requirements in the final rule. This
approach is intended to give the Secretary needed flexibility in pro-
mulgating new standards. The Secretary's determination could be
challenged under Section 6 of the OSHA Act, based on the "sub-
stantial evidence rule".
The conference substitute also modifies the training require-
ments contained in the House amendment. The House amendment
is clarified to make training standards applicable to employees
whose jobs cause them to work directly with hazardous substances.
In addition, the conference substitute modifies the training require-
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ments for general site workers, onsite managers and supervisors to
specify that such persons must have either 40 hours of instruction
or its equivalent. Equivalent training includes the training that ex-
isting employees might have already received from actual, onsite
experience.
Funding for the grants program is also changed to reflect the
Senate's approach under Section lll(c) of CERCLA. Thus, Section
126(b)(4) of the House amendment, which authorizes appropriations
from the general fund of the Treasury, is deleted. Finally, the con-
ference substitute requires the National Institute of Environmental
Health Sciences, rather than the National Institute of Occupation-
al Safety and Health, to administer the program.
SECTION 127—LIABILITY LIMITS FOR OCEAN INCINERATION VESSELS
Senate amendment—The term "incineration vessel" is defined
under section 101 of CERCLA. Incineration vessel liability under
section 107 of CERCLA is equated to liability of facilities under sec-
tion 107 of CERCLA. Financial responsibility requirements under
section 108 of CERCLA are revised to direct the President to re-
quire additional evidence of financial responsibility for incineration
vessels to reflect different risks posed by incineration vessels. The
Marine Protection, Research and Sanctuaries Act of 1972 is amend-
ed to revise provisions which had been interpreted as preempting
other legal remedies for damages by the decision in Middlesex
County Sewerage Authority v. National Sea Clammers Association.
Section 107 of CERCLA is amended to clarify that a vessel owner
would be liable in accordance with section 107 under maritime tort
law and that physical damage to the proprietary interest of the
claimant is not required as a condition of liability.
House amendment—The term "incineration vessel" is defined
under section 101 of CERCLA. Incineration vessel liability under
section 107 of CERCLA is equated to liability of facilities under sec-
tion 107 of CERCLA. Financial responsibility requirements under
section 108 of CERCLA are revised to allow the Administrator to
require additional evidence of financial responsibility for inciner-
ation vessels to reflect different risks posed by incineration vessels.
Conference substitute—The conference substitute adopts the
Senate amendments with regard to the definition of incineration
vessel, liability under section 107 of CERCLA, and financial respon-
sibility under section 108 of CERCLA. Regarding financial responsi-
bility, the President shall require evidence of financial responsibil-
ity for ocean incineration under this section commensurate with
the financial responsibility appropriate for activities with similar
risks.
The conference substitute adopts a modification of the Senate
amendment to the Marine Protection, Research, and Sanctuaries
Act of 1972. This modification makes clear that the Marine Protec-
tion, Research and Sanctuaries Act of 1972 does not preempt any
person's right (1) to seek damages or enforcement 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 noncompliance with any requirement or permit
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under the Marine Protection, Research and Sanctuaries Act of
1972.
The conference substitute adopts the Senate amendment with
regard to liability under maritime tort law and the absence of
physical damage to a claimant's proprietary interest.
Additionally, the Environmental Protection Agency has recently
announced its decision to promulgate final regulations prior to is-
suing permits, including research permits, for incineration of
wastes at sea. The Environmental Protection Agency should pro-
ceed promptly with its final regulations for all types of ocean incin-
eration permits. These final regulations are expected to fully ad-
dress all the comments received from the States and the public on
the regulations proposed on February 28, 1985. The Administrator
will promptly revise these final regulations, as appropriate, if re-
quired by subsequent research.
TITLE II—MISCELLANEOUS
SECTION 201—POST-CLOSURE
Senate amendment—The Senate amendment requires the Admin-
istrator of EPA to conduct a study and report to Congress on op-
tions for a program to finance the post-closure maintenance of
RCRA-regulated hazardous waste treatment, storage and disposal
facilities in a manner which complements the policies set forth iri
the Hazardous and Solid Waste Amendments of 1984 and assures
the protection of human health and the environment. Provisions
for the transfer of liability under section 107(k) of the original
CERCLA are suspended until Congress receives the report and
enacts subsequent legislation.
House amendment—The House amendment repeals the Post-clo-
sure Liability Trust Fund provisions of CERCLA that are in both
the tax title and in section 107(k) of the original law. The amend-
ment requires the Comptroller General to study and report to Con-
gress on a program for the management of liabilities after the clo-
sure of hazardous waste disposal facilities that are regulated under
the Solid Waste Disposal Act (SWDA or RCRA).
Conference substitute—Instead of repealing the Post-closure Li-
ability Trust Fund provisions, the conference substitute includes a
suspension of the liability transfer provisions. The Comptroller
General is required to conduct a study and report to Congress on
options for a program for the management of the liabilities after
the closure of RCRA-regulated hazardous waste treatment, storage
and disposal facilities in a manner which complements the policies
set forth in the Hazardous and Solid Waste Amendments of 1984
and assures the protection of human health and the environment.
Specific elements from both the House and Senate amendments are
included in the description of the program, the options to be consid-
ered, and the assessments that are to be conducted as part of the
study.
SECTION 202—HAZARDOUS MATERIALS TRANSPORTATION
Senate amendment—The Senate amendment requires that each
hazardous substance designated under subsection 101(14) be listed
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and regulated under the Hazardous Materials Transportation Act
by June 1, 1986, or at the time of such designation, whichever is
later, and places certain liabilities on common or contract carriers
for such listed and regulated substances.
House amendment—The House amendment requires that each
hazardous substance designated under subsection 101(14) be listed
and regulated under the Hazardous Materials Transportation Act
within ninety days after the date of enactment of CERCLA or at
the time of such designation, whichever is later, and places certain
liabilities on common or contract carriers for such list and regulat-
ed substances.
Conference substitute—The conference substitute adopts the
Senate provision but changes the date of regulation from June 1,
1986, to 30 days after the date of enactment.
SECTION 203—STATE PROCEDURAL REFORM
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment establishes new sec-
tion 309 of CERCLA. This section provides for a Federal commence-
ment date for State statutes of limitations which are applicable to
harm which results from exposure to a hazardous substance. State
statutes of limitations define the time in which an injured party
may bring a lawsuit seeking compensation for his injuries against
the party alleged to be responsible for those injuries. These statutes
usually run from two to four years, depending on the State. In the
case of a long-latency disease, such as cancer, a party may be
barred from bringing his lawsuit if the statute of limitations begins
to run at the time of the first injury—rather than from the time
when the party "discovers" that his injury was caused by the haz-
ardous substance or pollutant or contaminant concerned.
The study done pursuant to Section 301(e) of CERCLA by a dis-
tinguished panel of lawyers noted that certain State statutes de-
prive plaintiffs of their day in court. The study noted that the prob-
lem centers around when the statute of limitations begins to run
rather than the number of years it runs.
This section addresses the problem identified in the 301(e) study.
While State law is generally applicable regarding actions brought
under State law for personal injury, or property damage, which are
caused or contributed to by exposure to any hazardous substances,
or pollutant or contaminant, released into the environment from a
facility, a Federally-required commencement date for the running
of State statutes of limitations is established. This date is the date
the plaintiff knew, or reasonably should have known, that the per-
sonal injury referred to above was caused or contributed to by the
hazardous substance or pollutant or contaminant concerned. Spe-
cial rules are noted for minors and incompetents.
Conference substitute—The conference substitute adopts the pro-
vision in the House amendment.
SECTION 204—CONFORMING AMENDMENT TO FUNDING PROVISIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
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House amendment—The House amendment changes the name of
the "Hazardous Substance Response Trust Fund" to the "Hazard-
ous Substances Superfund". The amendment further provides that
money in the Hazardous Substance Response Trust Fund shall be
available only for expenditure as provided in Section 111 of
CERCLA as amended by the Superfund Amendments and Reau-
thorization Act of 1986.
Conference substitute—The conference substitute adopts the
House provision.
SECTION 205—LEAKING UNDERGROUND STORAGE TANKS
Section 205 of the conference substitute amends Subtitle I of the
Solid Waste Disposal Act by adding a new subsection 9003(h) to es-
tablish a response program with respect to leaks from underground
tanks which contain petroleum. Other amendments to Subtitle I
are also included in this section.
The response program created by the new subsection (h) relies on
two mechanisms to assure that the financial resources necessary to
pay for corrective actions are available. First, under amendments
to section 9003(c) and (d) of Subtitle I, the owner or operator of
each underground storage tank will be required to maintain evi-
dence of financial responsibility for taking corrective action and
compensating third parties for property damage and bodily injury.
In most cases the evidence of financial responsibility maintained by
the owner or operator of the tank to satisfy this requirement will
be adequate to pay the entire cost of cleanup and response. At most
sites response costs are comparatively small, because cleanup pro-
ceeds quickly. A rapid response should continue to be a high priori-
ty in the implementation of the response program created by these
amendments.
Second, the amendments establish a $500 million Leaking Under-
ground Storage Tank Trust Fund to be financed by taxes on motor
fuels to pay for response costs in a limited set of circumstances.
Before regulations are published under the existing Subtitle I, the
Administrator or the State may use the Fund to pay for a correc-
tive action whenever that action is necessary, in the judgment of
the Administrator or the State, to protect human health and the
environment. The Administrator can also issue an order requiring
corrective action.
After the effective date of the regulations, subsection (h) provides
for use of the Fund where the financial resources of the owner or
operator (or guarantor) are not available. Specifically, the Fund
could be used in the following circumstances: where there is no sol-
vent owner or operator; where it is necessary to take immediate
action to protect human health and the environment and only the
Fund is available to provide the resources; where an owner or oper-
ator has refused to cooperate in a cleanup or comply with an order
by the Administrator or the State; and where expenditures at loca-
tions apart from the facility are necessary to protect human health
or the environment from petroleum that has migrated from the fa-
cility pursuant to the provisions of paragraph (11) of subsection (h).
In addition there will be a very limited number of cases for
which there is an identifiable and solvent owner or operator who is
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willing to cooperate in the cleanup, but whose financial resources
(including the methods of financial responsibility required by a sec-
tion 9003(c)(6)) will not be adequate to pay the entire cost of a re-
sponse. In those cases, the Administrator or a State is authorized to
use the Fund to pay the costs that exceed the level of financial re-
sponsibility required of the owner or operator as established by the
Administrator in regulations under subsections 9003(c) and (d).
The purpose of these amendments is to assure rapid and effective
responses to releases from underground storage tanks. The first
step in a response is a recognition that a leak is occurring and is
typically made by the owner or operator when he or she reports
the presence of a release. Releases are likely to be recognized and
reported sooner, if the financial uncertainties associated with a cor-
rective action which face the owner or operator with a leaking
tank are reduced or removed. The combination of an insurance re-
quirement and a Fund to pay the costs which exceed the amount of
the insurance is intended to reduce the financial uncertainty and
encourage early reporting of releases.
DEFINITION OF PETROLEUM
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The response program established by this
subsection is available only for tanks containing petroleum sub-
stances. The House amendment contains an explicit definition of
the term petroleum. The definition is a restatement of the meaning
of the term as established by current law in section 9001(2) of the
Solid Waste Disposal A.ct. The new definition does nol add or
remove from regulation any substance or underground tank subject
to current law.
Conference substitute—The conference substitute adopts the
House provision.
FINANCIAL RESPONSIBILITY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment includes provisions
thai limit the liability of owners or operators for the costs and
damages caused by releases.
Conference substitute—The conference substitute does not include
any limitations on liability as provided in the House amendment,
but it does require the Administrator to promulgate requirements
for maintaining evidence of financial responsibility.
Section 9003(c) of Subtitle I as it exists in current law requires
the Administrator of the EPA to promulgate release detection, pre-
vention and correction regulations as may be necessary to protect
human health and the environment. Regulations for petroleum
tanks satisfying these provisions are by law due to be promulgated
by May, 1987.
Under current law the Administrator need not require that un-
derground tank owners and operators maintain evidence of finan-
cial responsibility.
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Section 9003(c) and (d) of current law is amended by the confer-
ence substitute to define this new element of the underground stor-
age tank regulatory program.
The amount of financial responsibility required shall be suffi-
cient to take corrective action and to compensate third parties for
bodily injury and property damage caused by either a sudden or
nonsudden release at an underground storage tank. Corrective
action means cleanup of a release and, as in existing law and other
portions of the conference substitute, includes relocation of resi-
dents, providing alternative water supplies and conducting expo-
sure assessments.
The Administrator in promulgating financial responsibility regu-
lations is given the authority to establish various classes and cate-
gories of tanks. In setting the amount of financial responsiblity
necessary to satisfy the new requirement, the Administrator is au-
thorized to vary the amount depending on the class or category to
which the tank belongs. The conference substitute establishes a
minimum amount which shall apply to all owners or operators
unless the Administrator sets a lower amount by regulation. This
minimum is $1 million per occurrence. The Administrator may also
include in the regulations an aggregate amount per insurance
policy.
The Administrator is authorized to set a minimum amount lower
than $1 million per occurrence for some classes or categories of
tanks. This authority can only be implemented by regulation and is
intended to allow the Administrator to address the characteristics
of tanks where the capacity of the tank is small and the volume
moving through the tank is not large. The Administrator cannot
set a minimum financial responsibility requirement of less than $1
million for tanks which are engaged in petroleum production, re-
fining, or marketing, nor is the Administrator authorized to set a
lower amount for tanks that dispense very large volumes, for in-
stance, tanks at airports.
The Administrator has the authority to establish financial re-
sponsibility requirements in amounts which exceed $1 million for
particular classes or categories of tank owners and operators.
The conference substitute provides the Administrator with the
authority to suspend the financial responsibility requirement for a
particular class or category or in a particular State. This suspen-
sion does not apply to a particular owner or operator who cannot
get insurance. Rather the Administrator may suspend the require-
ment only after making a determination that no method of demon-
strating financial responsibility is generally available to owners or
operators in the class or category or the State. Before granting a
suspension to the owners or operators in a particular class or cate-
gory or State, the Administrator must also find that those owners
or operators are taking steps to form a risk retention group or that
the State is taking steps to form a fund for owners and operators in
that State.
A suspension of the financial responsibility requirement for a
class or category or in a particular State may only last for a period
of 180 days. At the end of that period, the Administrator must
make a new set of determinations before the suspension can be ex-
tended for another 180-day period. The Administrator must again
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find that no method of financial responsibility in the amounts re-
quired by the requlation is available to the owners or operators in
the class or category or in a particular State. To extend the suspen-
sion the Administrator must also find that substantial progress has
been made in establishing a risk retention group or the State fund
or that it is not possible to establish such a group or the State is
unwilling or unable to establish such a fund. The suspension may
be extended indefinitely in 180-day cycles, but only after the dual
determination.
The authority for the Administrator to suspend the financial re-
sponsibility requirement under Subtitle I does not extend to the re-
quirements of Subtitle C. Hazardous waste land disposal facilities
that have lost interim status under section 3005(e)(2) of the Sc^.id
Waste Disposal Act as a result of failure or inability to comply
with the financial responsibility requirements of Subtitle C shall
not be affected by this provision.
RESPONSE PROGRAM BEFORE REGULATIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Because regulations have not yet been pro-
mulgated under Subtitle I of the Solid Waste Disposal Act, the re-
sponse program established by the House amendments is subdivid-
ed into two parts, one providing authority to respond before such
regulations are issued and one providing authority to respond con-
sistent with the regulatory provisions after they are promulgated.
For petroleum tanks the Subtitle I regulations are due by law to be
promulgated by May 1987.
Conference substitute—The conference substitute adopts the
House amendment with modifications. The House amendment pro-
vides that the corrective action required with respect to particular
release should take into account the factors including the business
characteristics of the owner or operator. In this section the subject
matter is corrective action and the only appropriate considerations
are the factors necessary to adequately protect human health and
the environment.
RESPONSE PROGRAM AFTER REGULATIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment provides authority
for the Administrator (or a State) to use the resources of the Leak-
ing Underground Storage Tank Trust Fund to undertake corrective
action with respect, to a release from an underground storage tank
after the date on which the Subtitle I regulations are effective. Cor-
rective actions undertaken by the Administrator pursuant to this
paragraph will be required to meet the corrective action require-
ments established under the existing Subtitle I provisions. The re-
quirement in that case is a corrective action as may be necessary
to protect human health and the environment. The same require-
ments that the Administrator would apply to an owner or operator
required to take corrective action would also apply to a corrective
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action undertaken by the Administrator or a State using the re-
sources of the Fund.
The authority of the Administrator or a State to respond is limit-
ed by the House amendment to the following specific circum-
stances: (1) where no person can be found who is subject to the reg-
ulations and has the capacity to undertake a corrective action; (2) a
situation where the Administrator must promptly respond to pro-
tect human health and the environment; and (3) where the owner
or operator has refused to cooperate with an order by the Adminis-
trator to take corrective action.
Conference substitute—The conference substitute adopts the
House amendment with two modifications. First, the conference
substitute clarifies the authority of the Administrator to authorize
States to undertake response actions with the resources of the
Fund. Second, the conference substitute adds a fourth circumstance
in which the Administrator or a State can use the resources of the
Fund to undertake a response. Where the total costs of a corrective
action exceed the financial responsibility requirement for a par-
ticular owner or operator and paying the costs above the insured
amount would significantly impair the ability of the owner or oper-
ator to continue in business, the Fund may be used to pay all or a
portion of the costs of the corrective action which exceed the
amount of financial responsibility that the owner or operator has
been required to maintain.
Paragraph (2)(C) of subsection (h) authorizes the use of the Fund
to assure effective corrective actions. The term "effective" means
that the corrective action is fully protective of human health and
the environment and is implemented in a timely way so as to mini-
mize the risk posed by the release. To assure effective actions, the
Administrator or the State may implement the corrective action
using the financial resources of the Fund and seek to recover the
costs of such action under paragraph (6).
The costs of corrective action and the injury to persons and
damage to property caused by releases from underground storage
tanks is minimized when corrective action is taken quickly. The
Fund should be used to facilitate quick response where such action
is necessary to protect human health and the environment.
PRIORITY CORRECTIVE ACTIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment instructs the Admin-
istrator to give highest priority in undertaking corrective actions
with respect to releases from underground storage tanks to those
releases which pose the greatest threat to human health and the
environment.
Conference substitute—The conference substitute adopts the
House amendment with a clarification that States shall be subject
to the same priorities when they undertake corrective actions pur-
suant to this response program.
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CORRECTIVE ACTION ORDERS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment provides the Admin-
istrator authority to issue orders to the owners or operators of un-
derground storage tanks to take corrective action with respect to a
release from a petroleum tank prior to the time that regultions im-
plementing the order authority under existing law are promulgat-
ed. The Administrator is also provided authority to issue orders for
corrective action after such date, although the Administrator has
such authority under current law.
Conference substitute—The conference substitute adopts the
House amendment with modifications to clarify the authority of a
State operating under a cooperative agreement with the Adminis-
trator to issue orders under this paragraph until such time as the
State has a regulatory program approved pursuant to section 9004.
After regulations are promulgated, orders under this paragraph
shall conform with the corrective action requirements of section
9003(c)(4) and meet the standard of section 9003(a).
Paragraph (2)(D) of subsection (h) authorizes the Administrator
to use the Fund to respond to a petroleum release at a facility in
two circumstances: 1) if the owner or operator refuses to comply
with a specific order to clean up a release issued by the Adminis-
trator under authority of subsection (h), and 2) if the owner or op-
erator refuses to comply with an order to take corrective action
issued by the Administrator under section 9006 of the Solid Waste
Disposal Act. In each of the two cases, the authority to use the
Fund to respond only arises after the owner or operator has re-
fused to comply with an explicit order for response to a release at a
facility. Paragraph (4) of subsection (h) makes reference to this
same authority of the Administrator to issue orders to take correc-
tive action under section 9006 of the Solid Waste Disposal Act. The
phrase "to carry out regulations issued under subsection (c)(4)" is
not a new authority but refers to the authority contained in cur-
rent law.
ALLOWABLE CORRECTIVE ACTIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains a provision
which includes within the definition of corrective action the tempo-
rary or permanent relocation of residents and alternative water
supplies. Also included in the allowable corrective action are stud-
ies to determine the health effects of a release from a petroleum
tank. However, the cost of these studies cannot be recovered from
owners or operators under the House amendment.
Conference substitute—The conference substitute adopts the
House provision with modifications. Reference to studies of health
effects are deleted. In addition to the temporary or permanent relo-
cation of residents and the provision of alternative water supplied,
the Administrator is authorized to conduct exposure assessments at
the site of a release from an underground storage tank.
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Paragraph (5) of subsection (h) provides the Administrator (or the
State) with authority to conduct exposure assessments at the sites
of underground storage tanks which have released petroleum. The
Administrator is authorized to recover the costs of such assess-
ments from the owner or operator of the tank under paragraph (6)
and the term "exposure assessment" is defined in paragraph (10) of
subsection (h).
The purpose of the assessments is to determine which individuals
have been exposed to the released petroleum and to aid in the
design of appropriate corrective actions. Included in the assess-
ments might be actions such as: obtaining and analyzing air, water
and soil samples; determining the levels of petroleum substances in
tap or well water; determining the direction and spread of the sub-
stances through various pathways of exposure; monitoring homes
and buildings in the area for vapors or other signs that the sub-
stance has migrated to a particular location; and comparing the
data gathered at the site on the nature of the release and the re-
sulting exposure to other information that is available on the ef-
fects of and risks posed by exposure to the released substances.
Paragraph (5) does not authorize a house-to-house survey to de-
termine the health problems experienced by persons living or
working in the surrounding community, nor does the language give
the Administrator the authority to conduct epidemiological surveys
or toxicological tests of the substances released. Although the Ad-
ministrator may conduct health surveys and studies at the site
under other authorities, nothing in this section authorizes the Ad-
ministrator to pursue cost recovery for such studies from the owner
or operator of the tank.
In determining whether to conduct an exposure assessment at a
particular facility where petroleum has been released, the Admin-
istrator shall take into account the presence of buildings within the
vicinity of the facility in which particularly susceptible individuals
might work or reside, including schools, hospitals, nursing homes
and clinics.
The legislation does not affect authority under other law to con-
duct health studies, health assessments, or health research.
RECOVERY OF COSTS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment provides that the
owners and operators of underground storage tanks shall be liable
to the Administrator or a State for the costs of a corrective action
undertaken pursuant to the authorities of this section. The stand-
ard of liability which obtains under this paragraph is the same
standard of liability which would be applied pursuant to section
311 of the Federal Water Pollution Control Act.
Conference substitute—The conference substitute adopts the
House amendment with modifications. The standard of liability is
the same as the standard established by the House bill. The confer-
ence substitute adds a new paragraph (6)(B) relating to the equities
of cost recovery which is to guide the decisions of the Administra-
tor or a State in seeking recovery of costs. Paragraph (6)(B) is an
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instruction to the Administrator and the States with respect to the
administration of the program and not a defense for an owner or
operator facing a cost recovery action taken by the Administrator
or a State.
Paragraph (6)(B) of subsection (h) gives the Administrator or the
State the discretion to forego full-cost recovery from the owner or
operator at some facilities where a release has occurred and the
Fund has been used to pay for response actions. A full-cost recov-
ery is not intended where the owner or operator has maintained
financial responsibility as required by subsections (c) and (d) and
the financial resources of the owner or operator (including the in-
surance or other methods of financial responsibility which was
maintained) are not adequate to pay for the costs of a response
without significantly impairing the ability of the owner or operator
to continue in business. The "equities" in such a case would dictate
that the Fund be used to pay the costs or portion of the costs of
response which exceed the amount of financial responsibility that
the owner or operator was required to maintain. The factors to be
considered by the Administrator or the State in determining the
equities are the same factors which the Administrator is to consid-
er according to paragraph (5)(C)(iii) of section 9003(d) in establish-
ing a minimum financial responsibility requirement for various
classes and categories of underground storage tanks pursuant to
subsection (d) of section 9003.
Paragraph (6) of subsection (h) provides for the recovery of costs
of corrective action by both the Administrator and the States from
owners and operators of tanks. To encourage aggressive cost recov-
ery by the States, EPA may, in its discretion, make available addi-
tional funds for corrective action to those States that demonstrate
an effective cost recovery program.
LIMITATIONS ON LIABILITY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains a series of
provisions limiting the liability of owners and operators for the
costs incurred by EPA or a State when implementing the authori-
ties of the response program established by this section.
Conference substitute—The conference substitute deletes the
House amendment.
EFFECT ON LIABILITY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment provides that no in-
demnification, hold harmless, or similar agreement or conveyance
would be effective to transfer liability under subsection (h) from
the owner or operator of any underground storage tank or from
any person who may be liable for a release or threat of release to
any other person. Nothing in the paragraph, however, bars any
agreement to insure, hold harmless, or indemnify a party to an
agreement for any liability under section 9003 of the Solid Waste
Disposal Act.
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Conference substitute—The conference substitute adopts the
House provision.
STATE AUTHORITIES
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment provides that the re-
sponse authorities assigned to the Administrator under the new
subsection (h) could be delegated to States which are also delegated
primary enforcement responsibility for the section 9003(c) provi-
sions of Subtitle I. A State program is required to be substantially
equivalent to the Federal program and the Administrator would
make grants to the States from the Leaking Underground Storage
Tank Trust Fund as necessary to undertake corrective actions with
respect to releases of petroleum from underground storage tanks.
The House amendment includes an allocation formula to distribute
the revenue of the Fund among the States.
Conference substitute—The conference substitute does not follow
the House amendment to establish a grant program, but rather
allows a State to exercise the authorities of subsection (h)(l) and
(2), if the Administrator determines that the State has the capabil-
ity to run an effective program and the Administrator and the
State enter into a cooperative agreement with respect to the ac-
tions to be taken by the State. These actions include issuing of
orders to owners and operators to take corrective action, enforcing
the orders, undertaking corrective action at sites where owners and
operators will not or cannot respond, and recovering the costs of
corrective actions paid for by the Fund. Pursuant to the conference
substitute each State will be required to pay 10 percent of the cost
of any corrective action undertaken either by the State or the Ad-
ministrator using revenues from the Fund, after the effective date
of the regulations promulgated under section 9003(c). Until such
date, the full cost of such actions shall be paid for by the Fund. The
Fund may also pay the full cost of a corrective action after the date
of the regulations but only where the corrective action is necessary
to respond to an imminent and substantial endangerment to
human health and the State refuses to pay its share of the costs.
A State may issue orders or undertake corrective action with re-
spect to a release of petroleum from an underground storage tank
under paragraph (1) after the date on which the regulations are
promulgated pursuant to section 9003(c) and until its program is
approved under section 9004, but during this period all such ac-
tions or orders must be in compliance with the corrective action
regulations promulgated by the Administrator pursuant to section
9003.
The Fund is not to be administered as a grant program with
funds allocated to the States by some formula mechanism. Al-
though the States are to be given maximum responsibility and
flexibility to use the authorities of this section to assure early and
effective responses, they will only receive disbursements from the
Fund as necessary to respond to releases. Much of the detail of the
program at the State level is not specified in the legislative lan-
guage, but is to be developed and directed by the Administrator
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through the cooperative agreements. The fundamental provisions
of each State program should be spelled out in a generic agreement
between the State and the Administrator in advance, rather than
negotiated on a site-specific basis in response to releases at a par-
ticular facility.
Subsection (h) authorizes the Administrator to use the Leaking
Underground Storage Tank Trust Fund to pay Federal costs (and
under a cooperative agreement, State costs) of corrective action, en-
forcement action, cost recovery and the reasonable and necessary
administrative expenses directly related to those activities. The
Fund is to be used to pay the costs associated with correcting a re-
lease of petroleum from a facility. The Fund is not intended as a
source of funding to assist States in developing and implementing
general technical capabilities or programs to support State legal of-
fices in carrying out their general responsibilities.
FACILITIES WITHOUT FINANCIAL RESPONSIBILITY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—Ths Administrator or a State is precluded
from using the Fund to undertake corrective action at a facility
where the owner or operator has failed to maintain the evidence of
financial responsibility required by regulations promulgated pursu-
ant to section 9003 (c; and (d). The Fund is intended to stand
behind the owner or operator who has obtained methods of finan-
cial responsibility to protect human health a ad the environment.
In all cases, corrective action with respect to a release from an
underground tank containing petroleum is to be undertaken by the
owner or operator pursuant to a corrective action order, if the
owner and operator is identifiable, has trie resources and capability
to respond and will comply with the instructions of the Administra-
tor or the State. Where these conditions are not present, the Ad-
ministrator or the State is authorized to use the Fund to undertake
corrective action. In seeking to recover the costs of that corrective
action, the Administrator- or the State shall not take into account
the equities described in subsection (h)(6)(B), if the owner or opera-
tor did not maintain the requisite level of financial responsibility.
Nothing, including the failure of an owner or operator to main-
tain financial responsibility, shall preclude an action by the Ad-
ministrator or the State using the resources of the Fund to take
corrective action outside the boundaries of the facility as author-
ized by subsection (h)(5) or as necessary to respond to a release or
threat of a release which poses an imminent and substantial en-
dangerment to human health or the environment.
METHODS OF FINANCIAL RESPONSIBILITY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Current law provides that financial responsi-
bility for taking corrective action can be demonstrated through any
of a series of specified instruments, including insurance, guaran-
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tees, surety bonds, letters of credit or qualification as a self-insurer.
The House amendment allows the Administrator by regulation to
establish other means which will be satisfactory to demonstrate fi-
nancial responsibility.
Conference substitute—The conference substitute adopts the
House provision with additional elements. The same modification
made by the House amendment to section 9003(d) is included in the
parallel provisions of section 9004 relating to financial responsibil-
ity demonstrations under authorized State programs. The Adminis-
trator can by regulation establish other methods of demonstrating
financial responsibility which will be acceptable under authorized
State programs.
In addition, the amendments made by the conference substitute
strike a provision from current law. Current law provides that
States can establish response funds that can be used by owners or
operators of underground tanks to satisfy the financial responsibil-
ity requirements of Subtitle I. However, the language of section
9004(c)(l) would restrict such State-sponsored response funds to
funds financed by fees on tanks. To assure that States have the
maximum flexibility to create programs to be used to demonstrate
financial responsibility for tank owners and operators within that
State, the restriction on such funds as to revenue source is deleted
from the current law by the conference substitute.
AUTHORITY TO ENTER FOR CORRECTIVE ACTIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute adds a provision
to existing law authorizing officers of EPA or the State to enter
property for the purpose of taking corrective action.
COORDINATION WITH OTHER LAWS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment includes a savings
clause providing that liability limits would have no affect on the
liability of an owner or operator under any other law.
Conference substitute—The conference substitute includes an
amendment to the existing "savings clause" of Subtitle I. Section
9008 of Subtitle I preserves the authority of States or their political
subdivisions to impose regulations, standards or requirements on
tank owners or operators which are more stringent than the regu-
lations, standards or requirements imposed by the Federal govern-
ment under Subtitle I. The conference substitute adds the phrase
"or to impose any additional liability with respect to the release of
regulated substances within such state or subdivision." to the Sub-
title I provision. This substitute preserves the purpose of the House
amendment which is to leave the liability of owners and operators
for releases at underground storage tanks which is contained in
other law, including State and local statutes and common law, un-
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affected by the new petroleum response program. Regulated sub-
stances include both petroleum and other hazardous substances.
POLLUTION LIABILITY INSURANCE STUDY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Under the House amendment the Comptrol-
ler General of the United States is to conduct a study of pollution
liability insurance, leak insurance and contamination insurance
available to the owners and operators of petroleum storage and dis-
tribution facilities.
Conference substitute—The conference substitute adopts the
House provision with modifications. The report is directed to the
Congress as a whole. The report is due 15 months after the date of
enactment.
SECTION 206—CITIZENS SUITS
Senate amendment—The Senate amendment authorizes citizens
suits under CERCLA against two categories of persons: (1) those al-
leged to be in violation of any requirement which is made effective
pursuant to the Act; and (2) those Federal government officials who
are alleged to have failed to perform nondiscretionary duties under
the Act. It is substantially similar to the House amendment, except
that it does not authorize suits under CERCLA to abate imminent
and substantial endangerment to public health and the environ-
ment.
House amendment—The House amendment adds a comparable
new section 310 to CERCLA. It authorizes, in addition to the two
categories of suits authorized by the Senate amendment, a third
category of persons against whom such suits may be brought: those
responsible for the actual or threatened release from a hazardous
waste disposal site of a hazardous substance which presents an im-
minent and substantial endangerment to public health or the envi-
ronment.
Conference substitute—The conference substitute adopts the
House provision with modifications.
First, the substitute deletes the House provision which author-
izes suits for imminent and substantial endangerment. The dele-
tion of section 310(a)(l)(B) pertaining to imminent and substantial
endangerment actions does not affect in any manner the rights of
any person to commence a civil action pursuant to section 7002 of
the Solid Waste Disposal Act. Under the citizens suit provision of
the Solid Waste Disposal Act, any person is authorized to seek
relief, including abatement, where the past or present handling,
storage, treatment, transportation or disposal of any solid or haz-
ardous waste may present an imminent and substantial endanger-
ment to health or the environment. The section being deleted from
this citizens suits provision covered "a hazardous waste disposal
site," and thus, its operative effect would have been to cover only
locations already covered under the comparable citizens suits provi-
sion of the Solid Waste Disposal Act. In fact, the Solid Waste Dis-
posal Act provision applies to a broader range of locations since it
applies not only to hazardous waste disposal sites, but also to sites
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where solid waste disposal may present an imminent and substan-
tial endangerment. Thus, because the Solid Waste Disposal Act
provision applies to localities where disposal of solid or hazardous
waste as well as hazardous substances has occurred, this overlap-
ping provision was unnecessary. Further, the Conferee's action
does not affect or otherwise impair the rights of any person under
Federal, State or common law.
Further, the conference substitute provides that the President
and any other officers of the United States, including the Adminis-
trator of EPA and the Administrator of ATSDR, are subject to civil
actions for failure to perform a non-discretionary act or duty. In
addition, a civil action may be brought against any person who is
alleged to be in violation of any standard, condition, requirement,
order or agreement which has become effective pursuant to this
Act. These provisions specifically cover the terms of interagency
agreements relating to Federal facilities.
Venue for actions under this section against persons allegedly in
violation of standards, or other requirements of CERCLA, is solely
in the district court where the violation occurs: similarly, actions
for alleged failures to perform a non-discretionary duty may be
brought where the violation occurs, or in the United States District
Court for the District of Columbia.
The intervention provision contained in both Senate and He-use
amendments is deleted from this section because a similar amend-
ment contained in section US is applicable.
In addition, the substitute also clarifies the terms of the citizens
suits provision and limits the bar to bringing citizens suits to those
matters where the President has commerced and is diligently pur-
suing a court action under this Act or under the Solid Waste Dis-
posal Act. The House a.nendrnent, "which had applied this bar
when the President had commcnce-1 and was diligently pursuing
an administrative order, has beei. deleted.
Finally, the conference substitute clarifies subsection 2G7(h)
[v/hich replaces subsection \g) of the House a'^endrrent and subsec-
tion if) of the Senate amendment] to state that section 206 docs not
affect cr otherwise impair the rights of any person under Federal,
Stale, or common law, except with respect to the timing of judicial
review of the selection of a response as provided in section 113(h) of
this bill cr as otherwise provided in section 309 of this bill regard-
ing State procedural reform.
SECTION 207—INDIAN TRIBES
Senate amendment—The Senate amendment amends several sec-
tions of CERCLA to provide for the treatment of Indian tribes as
States under the Superfund program. The amendments define
"Indian Tribe" to mean any Indian tribe, band, nation, or other or-
ganized group or community, including any Alaska native village
(but not including a regional or village corporation) which is recog-
nized as eligible for the special programs and services provided by
the United States to Indians; because of their status at, Indians. An
Indian tribe is excluded from the requirements of section 104(c)(3)
regarding fulure maintenance and cost-shaiing, and the assurance
regarding availability of a Hazardous waste disposal facility must
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be provided by the President. The President can enter into coopera-
tive agreements with Indian tribes to carry out the Superfund pro-
gram. For the purposes of sections 107(f) and 111, Indian tribes (or
in certain cases, the United States acting on behalf of a tribe) are
treated as trustees of natural resources 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).
Indian tribes are generally afforded substantially the same treat-
ment as a State under sections 103, 104, 105, and 107.
House amendment—The House amendment adds a new section to
CERCLA to provide for the treatment of Indian tribes as States
under the Superfund program. The amendment defines "Indian
tribe" to mean any Indian tribe, band, nation, or other organized
group or community, including any Alaska native village (but not
including a regional 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. An
Indian tribe is excluded from the requirements of section 104(c)(3)
regarding future maintenance and cost-sharing, and the assurance
regarding availability of a hazardous waste disposal facility must
be provided by the Secretary of the Interior. The Administrator
can enter into cooperative agreements with Indian tribes to carry
out the Superfund program. For the purposes of sections 107(f) and
111, Indian tribes (or in certain cases, the Secretary of the Interior
acting on behalf of a tribe) are treated as trustees of 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 belong-
ing to a member of such tribe (if such resources are subject to a
trust restriction on alienation). Indian tribes are generally afforded
substantially the same treatment as a State under section 103, 104,
105, and 107. The Administrator is authorized to delegate authority
to obligate money in the Fund or to settle claims to officials of a
tribe operating under a cooperative agreement. The affected tribal
government must concur in any permanent relocation of tribal
members, and alternative land satisfactory to the tribe must be
provided. The Administrator must conduct a survey on Indian
lands and make recommendations on how tribal participation in
the Superfund program can be maximized. This report must be
submitted in early 1987. The statute of limitations for Indian tribes
is extended until two years after the United States gives written
notice to the tribe that it will not present a claim or commence an
action on behalf of the tribe, or fails to do so within the time limi-
tations specified in the Act.
Conference substitute—The conference substitute is the same as
the Senate amendment, with the addition of the provisions of the
House amendment regarding community relocation, the survey on
Indian lands, and the extended statute of limitations.
SECTION 208—STUDIES RELATED TO RESEARCH AND DEVELOPMENT
AND INSURANCE
Senate amendment—Research and Development: Section 153(d) of
the Senate amendment requires the President to undertake a study
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(and report to the Congress within four years) of the effects of the
standards of liability and financial responsibility requirements im-
posed by CERCLA on the cost of, and incentives for, developing and
demonstrating alternative and innovative treatment technologies.
Insurance: The Senate amendment has no comparable provision.
House amendment—Research and Development: The House
amendment has no comparable provision.
Insurance: Section 209 of the House amendment adds a new sub-
section (g) to section 301 of CERCLA, requiring the Comptroller
General to appoint a designated study group. The study group is
required to undertake a study of the insurability of liability im-
posed under CERCLA and other laws and is to evaluate, among
other matters, specified listed matters. The report is to be submit-
ted to Congress within 18 months.
Conference substitute—The conference substitute requires the
Comptroller General to undertake a study of the insurability, and
effect on standard of care, of liability imposed under CERCLA and
other laws in consultation with representatives of specified groups.
The study is to evaluate, among other matters, the effects of liabil-
ity and financial responsibility requirements imposed under
CERCLA on the cost of, and incentives for, the development of al-
ternative and innovative treatment technologies. The report is to
be submitted within 12 months of enactment.
SECTION 209—RESEARCH, DEVELOPMENT AND DEMONSTRATION
Senate amendment—Section 151 of the Senate amendment estab-
lishes as program for hazardous substance research and training.
The section authorizes the Secretary of HHS (acting through appro-
priate agencies such as NIOSH and NIEHS) and the Administrator
of EPA to each support, through grants, cooperative agreements
and contracts, research and training concerning the health effects
of hazardous substances. Accredited institutions of higher educa-
tion, research institutions, a State or local health agency, or other
appropriate entity may be eligible for awards, which are subject to
peer review. HHS and EPA may separately or jointly appoint an
Advisory Council to assist in the implementation of this section.
Section 153 of the Senate amendment establishes a program for
alternative or innovative treatment technology research. The sec-
tion authorizes the President to carry out a program of research,
evaluation, testing, development and demonstration of alternative
or innovative treatment technologies. At least 10 sites in whole or
in part should be made available for this purpose, according to
listed criteria. The President is required to enter into contracts and
cooperative agreements with, and make grants to, any persons in-
cluding public entities, accredited institutions of higher learning,
and nonprofit entitites. Federal funding may be made available to
assist in demonstration project. The President is authorized to con-
duct a technology transfer program, and to make information
available to the public.
Sections 158 and 159 of the Senate amenment establish centers
for the study of biological and genetic effects of wastes and materi-
als found in the environment and centers for the study of biological
and genetic effects on humans, animals and plants of materials
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found in the environment. These sections authorize the develop-
ment and construction of regional centers at appropriately quali-
fied universities, research and medical institutions for the study of
the biological and genetic effects of wastes and material found in
the environment.
House amendment—Subsection (a) of the House amendment es-
tablishes a program for hazardous substance research and training.
The subsection authorizes the Secretary of HHS, acting through
NIEHS, to fund basic research and training in the area of hazard-
ous waste and its effects on human health and the environment.
Research is funded through peer-reviewed grants, cooperative
agreements or contracts made with accredited institutions of
higher education. An Advisory Council is established to coordinate
research and demonstration and training activities funded under
this section.
Subsection (b) establishes a program for alternative or innovative
treatment technology research and demonstration. This subsection
authorizes and directs the Administrator of EPA to establish an
Office of Technology Demonstration. Through this office the EPA
may make available to approved applicants the use of sites and
other assistance for the testing and evaluation of innovative tech-
nologies for treating hazardous waste. The section details the crite-
ria and conditions under which a minimum of 10 projects will be
selected annually for demonstration, and allows the use of Federal
funds to assist in financing these demonstration projects. The EPA
is required to maintain a central reference library, accessible by
the public, of information relating to the utilization of alternative
or innovative treatment technologies for remedial actions. The
Office of Technology Demonstration is authorized and directed to
carry out training of State and local personnel involved in the han-
dling and removal of hazardous substances, and the management
of hazardous substance facilities.
Subsection (c) establishes a program for hazardous waste re-
search. This subsection authorizes the Administrator of SPA to
conduct and support research into the effects on human health of
hazardous substances and their detection in the environment.
Subsection (d) establishes university hazardous substance re-
search centers. The subsection requires the Administrator of EPA
to make at least 5 grants to institutions of higher learning to estab-
lish and operate 10 hazardous substance research centers. Recipi-
ents of grants shall be selected on the basis of criteria specifying
location, available resources, and interdisciplinary needs.
Conference substitute—Subsection (a) of the conference substitute
establishes the purposes of this section on Research, Development
and Demonstration.
Subsection (b) establishes four new programs. One program is the
hazardous substance research and training program. The provision
is based on the House provision. The Conferees make some changes
referring to training courses for State and local personnel, and
clarifying the roles of NIEHS and NIOSH in training. The specifi-
cations of the composition of the Advisory Council were altered in
line with the Senate provision. The requirements under this provi-
sion are not subject to citizen suits. Applicants receiving monies
under this provision may contract with private sector companies.
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Another program is the alternative or innovative treatment tech-
nology research and demonstration program. The provision is
based on the House provision with a number of clarifying changes
to the House language. Implementation of subsection (b)(8) is to be
consistent with requirements under the Solid Waste Disposal Act.
Another program is the hazardous waste research program. The
provision is based on House language but the word "waste" is
changed to "substance". Language was added to ensure coordina-
tion of these activies with appropriate agencies.
Finally, a program for university hazardous substances research
is established. The program is identical to the House provision. Ap-
plicants receiving monies under this provision may contract with
private sector companies.
Sections 158 and 159 of the Senate amendment are deleted.
In all the programs established under this section, the Adminis-
trator is required to ensure, to the maximum extent practicable,
that small businesses have an opportunity to participate in the pro-
grams.
SECTION 210—POLLUTION LIABILITY INSURANCE AND RISK RETENTION
ACT
Senate amendment—The Senate amendment creates a new title
of CERCLA, which provides exemptions from State insurance law
(except with respect to designated law or regulation) for groups
that meet the qualifications of a "risk retention group." The risk
retention group must be formed under the law of at least one
State, and the primary activity of the group must be assuming the
pollution liability of its group members. The Senate amendment
also provides purchasing groups with exemption from specified
State laws and regulations.
House amendment—The House amendment is the same as the
Senate amendment except that the Senate language includes (1)
language clarifying that risk retention groups may provide cover-
age only for pollution liability and (2) a more restrictive definition
of State.
Conference substitute—The conference substitute adopts the
House provison with the addition of the Senate language clarifying
that a risk retention group may provide coverage of only pollution
liability. While this section defines "pollution liability" as liability
for not only hazardous substances but also pollutants or contami-
nants, this section does not expand liability for either.
SECTION 211—DEPARTMENT OF DEFENSE ENVIRONMENTAL
RESTORATION PROGRAM
Senate amendment—Section 162 of the Senate amendment is
similar to the House provisions regarding the Defense Environmen-
tal Program. The primary differences are that section 162 does not
provide for a DoD research, development, and demonstration pro-
gram, or require DoD to provide the ATSDR with a list of hazard-
ous substances. In addition, the transfer account provisions in the
Senate amendment provide procedures for reprogramming funds
into and from this account and permit funding to be used for the
removal of unsafe buildings or debris at former DoD sites.
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House amendment—The House amendment establishes an Envi-
ronmental Restoration Program for the Department of Defense
(DoD) to provide for centralized control of environmental activities
in consultation with the Administrator of the Environmental Pro-
tection Agency (EPA). The Secretary has the basic responsibility
for carrying out response actions subject to the requirements of,
and in compliance with, CERCLA. In implementing these provi-
sions, the Secretary must consult with and is subject to the over-
sight of the Administrator of the Environmental Protection
Agency. The Secretary of Defense is also directed to carry out a
program of research, development and demonstration to develop in-
novative and cost-effective cleanup technologies. In order to facili-
tate the funding for response actions, an Environmental Restora-
tion Transfer account is established in this section. The transfer ac-
count aggregates all environmental restoration funding in a single
budget account and provides for the allocation of funds from the
transfer account to the relevant appropriation accounts (including
military construction), to give the Secretary of Defense the flexibil-
ity to address environmental requirements in a timely fashion. Ad-
ditionally, the section requires DoD to provide the Agency for Toxic
Substances and Disease Registry (ATSDR) with a list of the 25 haz-
ardous substances which are most widely used by DoD. The section
also requires the Secretary of Defense to annually report to Con-
gress on the status of the Environmental Restoration Program and
the implementation of CERCLA statutory requirements. Finally,
section 213, in conjunction with sections 117, 120 and 121 of
CERCLA provides for greater public awareness and increased in-
volvement by States, localities, and individuals in DoD environ-
mental restoration efforts.
Conference substitute—The conference substitute accepts the
Senate provisions for the establishment of the DoD Environmental
Restoration Program, with certain modifications. The conference
substitute requires that the "Defense Environmental Restoration
Program" be carried out subject to, and in a manner consistent
with CERCLA, including sections 117, 120 and 121. All response ac-
tions are to be carried out in accordance with CERCLA, including
the requirement that the Administrator of the Environmental Pro-
tection Agency must jointly select the remedial action. The Confer-
ees accept the House provisions concerning the establishment of a
research, development, and demonstration program, and the re-
quirement that DoD provide a listing of hazardous substances with
the ATSDR. The conference substitute adopts the House language
regarding the Environmental Transfer Account, but allows funding
to be used for the removal of unsafe buildings or debris at DoD
sites as provided for in the Senate amendment. The conference sub-
stitute also accepts the House provisions regarding DoD notifica-
tion of environmental restoration activities; the requirement for an
annual report to Congress on environmental activities; and proce-
dures governing DoD military construction environmental response
actions.
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SECTION 212—REPORT AND OVERSIGHT REQUIREMENTS
Senate amendment—The Senate provision amends section 301 of
CERCLA to require the EPA Administrator and the Attorney Gen-
eral to submit to Congress an annual report regarding certain mat-
ters related to enforcement actions and the settlement process.
House amendment—The House provision amends section 301 of
CERCLA to require the EPA Administrator to submit to Congress
an annual report on the progress achieved in implementing
CERCLA. In addition, the House amendment requires the appropri-
ate authorizing committees of Congress to conduct annual over-
sight hearings on the implementation of CERCLA.
Conference substitute—The conference substitute adopts the
House provision with the following modifications: (1) the report is
to be submitted on January 1 of each year and is to cover the pre-
ceding fiscal year; (2) the EPA Inspector General is to review the
portion of each report that is related to EPA activities and submit
the results of such review to the Congress as part of the report; (3)
the report is to include information on the status of certain remedi-
al and enforcement actions and an estimate of the resources neces-
sary for other Federal agencies to implement the Act; and (4) cer-
tain other minor modifications are made.
SECTION 213—LOVE CANAL PROPERTY ACQUISITION
Senate amendment—The Senate amendment directs the Adminis-
trator of the Environmental Protection Agency to establish a high
priority for the acquisition of all properties (including non-owner
occupied residential, commercial, public, religious and vacant prop-
erties) in the area which, before May 22, 1980, the President deter-
mined an emergency to exist because of the release of hazardous
substances and in which owner-occupied residences have been ac-
quired pursuant to such determination.
House amendment—The House amendment states that the Con-
gress finds that the area known as Love Canal in New York was
the first toxic waste site to receive national attention, and that be-
cause Love Canal came to the Nation's attention prior to the Su-
perfund program, special provisions are required to properly com-
pensate the residents of the area. It amends Title III of CERCLA to
add a new section, authorizing the Administrator of the EPA to
make grants of up to $2.5 million for acquiring private property in
the Love Canal Emergency Declaration Area, subject to specified
conditions. The amendment requires the Administrator to conduct
and publish a habitability and land-use study assessing the risks
associated with inhabiting the Love Canal area. For the purposes of
sections 111 and 221(c) of this Act, the expenditures authorized by
this section shall be treated as a cost specified in lll(c). These pro-
visions do not affect implementation of other response actions
within the area that the Administrator has determined (before en-
actment of this section) to be necessary to protect the public health
or welfare or the environment.
Conference substitute—The conference substitute adopts the
House provision.
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TITLE HI—EMERGENCY PLANNING AND COMMUNITY
RIGHT-TO-KNOW
The Senate amendment and House amendment both establish
programs to provide the public with important information on the
hazardous chemicals in their communities, and to establish emer-
gency planning and notification requirements which would protect
the public in the event of a release of hazardous chemicals. The
House amendment establishes the programs as a free-standing pro-
vision of law; the Senate amendment amends CERCLA to create
the new programs. The conference substitute adopts the House ap-
proach with respect to establishing the programs as a free-standing
provision of law and incorporates substantive provisions from both
House and Senate amendments.
SECTION 300—SHORT TITLE
Senate amendment—Provisions on Community Right-to-Know
and Emergency Planning are included in the Senate bill as amend-
ments to CERCLA, and there is no short title.
House amendment—Provisions on Community Right-to-Know and
Emergency Planning are included within the "Superfund Amend-
ments of 1985" as a free-standing title, not amending CERCLA.
Conference substitute—The conference substitute adopts the
House provision; establishes that the title be cited as the "Emer-
gency Planning and Community Right-to-Know Act of 1986."
SUBTITLE A: EMERGENCY PLANNING AND NOTIFICATION
SECTION 301—ESTABLISHMENT OF STATE COMMISSIONS, PLANNING
DISTRICTS, AND LOCAL COMMITTEES
Senate amendment—The Senate amendment provides that the
Governor of each State designate emergency planning districts
within 180 days of enactment and appoint members of an emergen-
cy planning committee for each such district within 210 days of en-
actment.
House amendment—The House amendment provides that the
Governor of each State establish and appoint membership to a
State emergency response commission within 6 months of enact-
ment. If the Governor does not establish such a commission, the
EPA Administrator is to operate as the State commission for that
State. Not later than 6 months after a State commission is estab-
lished, the State commission is required to designate local emergen-
cy response committees and appoint membership to those commit-
tees consistent with the requirements of the amendment.
Conference substitute—The conference substitute provides that
the Governor of each State, within 6 months of enactment, desig-
nate and appoint a State emergency response commission, which
may be one or more existing emergency response organizations
that are State-sponsored or appointed. If no State commission is ap-
pointed, the Governor of the State is to serve as the commission
and is responsible, therefore, for performing all of the duties as-
signed to the commission. This would include the public availabil-
itv and information functions included in Section 324.
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The section also provides that, within 9 months after the date of
enactment, the State commission shall designate emergency plan-
ning districts. If affected States agree, these districts may be estab-
lished across State lines. Within 30 days of establishing these dis-
tricts, but no later than 10 months after enactment, the State com-
mission should appoint members to the local emergency planning
committee. At a minimum, membership must include those parties
specified in the House amendment. However, existing local organi-
zations or entities may be used as the local emergency planning
committee provided that they include, or are augmented to include,
those parties specified for membership on such committees.
Membership on these committees, and the designation of dis-
tricts, may be revised as appropriate, and interested persons may
petition a State emergency response commission to modify mem-
bership of a local committee.
Section 301 also requires that the local emergency response com-
mittee and State emergency response commission designate an offi-
cial to serve as coordinator of information. Recognizing the impor-
tance of having an assured, available source of information for the
reports required under this title, the official? designated to serve as
the coordinator for information shall be government officials who
will respond to requests for information from other State agencies,
local officials, the public and other interested parties.
SECTION 302—SUBSTANCES AND FACILITIES COVERED AND
NOTIFICATION
Senate amendment—The Senate amendment provides that any
facility which has a substance listed on the iist published by the
Council of European Communities in its Council Directive of June
27, 1982, on the Major Accident Hazards of Certain Industrial Ac-
tivities, Annex II, in excess of the quantities published with that
list, is subject to the requirements of this subtitle. Such facilities
are required to notify State commissions that they are covered
within 90 days of the publication by SPA of the Council of Europe-
an Communities list. In addition, the Governor of each State may
designate additional facilities for emergency planning purposes.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute provides that
the facilities covered by the bill's emergency planning require-
ments are those which have a substance on the list of substances
published by EPA in November, 1985, in Appendix A of the "Chem-
ical Emergency Preparedness Program Interim Guidelines," in
excess of a threshold planning quantity published by SPA within
30 days of enactment, at which time EPA will republish that list.
Such substances are designated "extremely hazardous substances."
Facilities which have such substances in excess of the established
thresholds must notify the Emergency Response Commission that
they are subject to this subtitle. The conference substitute also re-
quires a facility to notify the State emergency response commission
that it is subject to the requirements of this subtitle if the list of
substances is revised or the facility acquires a new chemical and,
thereby, is subject to these requirements. However, since this is
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only a notification that a facility is covered and is not chemical-
specific, if a facility has already given notice of its coverage with
regard to another chemical, no such subsequent notice would be re-
quired.
Given the need to get this program under way in a timely fash-
ion, EPA is directed to publish these thresholds as interim final
regulations which will be binding until such time as they may be
revised by a final rulemaking which will be initiated when the ini-
tial thresholds are published. If the EPA fails to publish the inter-
im final rule as required, the threshold will be set at 2 pounds for
each substance until such time as EPA publishes such thresholds
as an interim final rule or as a final rule. The substitute also pro-
vides criteria to be considered by EPA in revising the list and
thresholds.
The substitute provides that a Governor or State emergency re-
sponse commission may designate additional facilities to be subject
to emergency planning requirements. Such designation shall be
made following public notice and an opportunity for comment. Any
faciity designated in this fashion is, according to section 325(a), not
subject to the civil penalties which otherwise apply to facilities sub-
ject to the emergency planning requirements.
This section also requires that the State emergency response
commission notify EPA of facilities subject to the requirements of
this section. The Administrator may specify the frequency and
form of notification by States of facilities subject to the subtitle.
SECTION 303—COMPREHENSIVE EMERGENCY RESPONSE PLANS
Senate amendment—The Senate amendment establishes require-
ments for local emergency planning committees, within 2 years of
enactment, to develop comprehensive emergency plans which in-
clude specified provisions. Facilities subject to emergency planning
requirements are required to provide information to the local com-
mittees for the purpose of developing and implementing such
plans. EPA is required to publish guidance documents to assist in
this planning, and to review such plans upon the request of a local
committee.
House amendment—The House amendment establishes similar
requirements with regard to the development and content of local
emergency plans and the requirement for facilities to provide infor-
mation to local committees. Emergency plans are required to be
submitted to the Governor for review, and EPA is required to pro-
vide technical assistance to localities in the development and im-
plementation of emergency plans.
Conference substitute—The conference substitute adopts the
Senate amendment, with modifications to conform to the House
amendment. Planning is to be conducted through a public process,
and the identity of those facilities subject to the emergency plan-
ning requirements is to be public. The conference substitute pro-
vides that the National Response Team issue guidance documents
and that the regional response teams may assist localities in devel-
oping and implementing emergency plans. The regional response
teams have discretion regarding how and whether to review and
comment upon specific plans and assist each locality.
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SECTION 304—EMERGENCY NOTIFICATION
Senate amendment—The Senate amendment requires that, in ad-
dition to any notice required to be provided to EPA, local emergen-
cy committees and the Governor of any affected State be notified in
the event of a release which requires reporting under section 103 of
CERCLA. The amendment specifies the nature of the notice and es-
tablishes a requirement for follow-up notification as appropriate.
House amendment—The House amendment applies the notice re-
quirement to releases from a covered facility which constitute a
"hazardous substance emergency." This includes accidental or ab-
normal releases of a hazardous substance, as defined in CERCLA,
that constitute an imminent and substantial endangerment to the
public health or the environment, or a release that is subject to re-
porting to EPA under section 103 of CERCLA which, according to
EPA regulations to be promulgated, constitutes a substantial
threat to public health and the environment. The House amend-
ment includes provisions similar to the Senate bill regarding the
content of the notice and the requirement to provide follow-up
notice as appropriate.
Conference substitute—The conference substitute establishes the
requirement that emergency notice in the event of a release be pro-
vided to local emergency committees and the State in three specific
instances. First, notice is required where the release is of an ex-
tremely hazardous substance, as referred to in section 302, and the
release requires notice to EPA under section 103(a) of CERCLA.
Second, notice is required where it is a release of an extremely haz-
ardous substance that zs not subject to notice under CERCLA, but
the release is (a) not Federally permitted, as defined in section
101(10) of CERCLA, (b) is in excess of an amount set by EPA (or, if
no amount has been set, in excess of 1 pound), and (c) the release
occurs in a manner which would require notice under section 103(a)
of CERCLA. This requires notification where there is a release of
an extremely hazardous substance that would require notice under
section 103(a) of CERCLA but for the fact that the substance is not
specifically listed under CERCLA as requiring such notice. Third,
the substitute requires notice in specificed instances where the sub-
stance released is not an extremely hazardous substance, as re-
ferred to in section 302, but the release must be reported to EPA
under section 103(a) of CERCLA. In the case of such a release, noti-
fication under this section must be provided to local and State
emergency response organizations if it exceeds a reportable quanti-
ty that has been established by EPA under section 102(a) of
CERCLA or, if the release occurs after April 30, 1988, exceeds the
fallback threshold under CERCLA of 1 pound. April 30, 1988, is the
date by which EPA is required by amendments to CERCLA else-
where in the conference substitute to publish reportable quantity
thresholds for all substances listed under CERCLA. Prior to April
30, 1988, for a release reportable under CERCLA but for which no
threshold has been set, the facility must give notice to the local
emergency planning committee in the same form and at the same
time as such notice is required by CERCLA to be provided to EPA.
The conference substitute provides that for a release to be report-
able under this section it must extend beyond the site on which the
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facility is located. On-site releases that do not extend off-site are
exempt from the requirements. In addition, releases which are con-
tinuous or frequently recurring and do not require reporting under
CERCLA are not required to be reported under this section. Such
release, if of an appropriate substance, would be reported under
section 313.
The conference substitute includes a special provision for how
notice is to be provided where there is a release with respect to
transportation or storage incident to transportation, which under
section 327 is exempt from all other provisions of this title. For
such a release, the notice requirements of the section shall be fully
satisfied by dialing 911, or in the absence of a 911 emergency tele-
phone number, calling the operator and reporting the release.
The conference substitute adopts the Senate bill provisions re-
garding the content of an emergency notice and follow-up require-
ments, modified to incorporate provisions in the House amend-
ment. The substitute requires that the notification indicate wheth-
er the substance is on the list of substances for which emergency
planning is required, as provided in section 302(a). The specific
chemical identity of the substance released must be provided on
the notice, and is not provided trade secret protection under section
322.
SECTION 305—EMERGENCY TRAINING AND REVIEW OF EMERGENCY
SYSTEMS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment includes provisions
authorizing the Federal Emergency Management Agency (FEMA)
to carry out certain programs related to hazardous substances. This
includes programs for the training of local emergency repsonse and
other personnel, and grants of $5 million for each of years 1987
through 1990 in support of university-sponsored programs and pro-
grams of State and local governments designed to improve emer-
gency planning and related capabilities.
The House amendment also includes a requirement that the
EPA Administrator review and report to the Congress within 18
months of enactment on various emergency systems.
Conference substitute—The conference substitute adopts the
House provision.
SUBTITLE B—REPORTING REQUIREMENTS
SECTION 311—MATERIAL SAFETY DATA SHEETS
Senate amendment—The Senate amendment directs, within 180
days of enactment, any facility at which a hazardous chemical is
produced, used or stored to, to provide to the local emergency plan-
ning committee, the Governor of the State and to EPA a copy of a
Material Safety Data Sheet (MSDS) for each hazardous chemical at
that facility. In addition, a copy of such MSDS is to be provided
within 90 days of any revision made to that form. EPA may set
threshold amounts, with facilities which have less than that
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amount not covered by the requirements of the section for such
chemicals.
House amendment—The House amendment requires an MSDS to
be filed, for each hazardous chemical, with the local emergency re-
sponse committee and such local and State officials designated to
receive such form. Such forms are initially required within 12
months of enactment, with revised or new initial MSDS forms to be
provided within 3 months of the time an MSDS form is revised or a
new hazardous chemical is first brought onto a facility. The House
amendment includes provisions requiring that an MSDS be provid-
ed to another facility when a hazardous chemical is first shipped to
that facility. A facility owned who had not received an MSDS in
this manner and who had made reasonable efforts to obtain such
an MSDS would be exempt from the requirement to provide the
MSDS to the specified local emergency committee and other per-
sons.
Conference substitute—The conference substitute incorporates the
basic requirement included in both the Senate and House amend-
ments, but clarifies in the statute that the requirement to file an
MSDS applies only to those facilities required to prepare or have
available an MSDS under the Occupational Safety and Health Act
of 1970 or regulation under that Act. MSDS forms must be provid-
ed to the appropriate local emergency planning committee, the
State emergency response commission, and the fire department
with jurisdiction over the facility. The forms must be provided at
those times specified in the House amendment.
The conference substitute incorporates the definition of hazard-
ous chemical used in both the Senate and House amendments,
along with the exceptions included in that definition, modified in a
manner so as to clarify the intent of both bodies. The term "haz-
ardous chemical" has the meaning in 29 CFR 1910.1200(c) of the
OSHA Hazard Communication Standard. The definition of the
term "hazardous chemical" in section 311(e) defines the chemicals
subject to the requirements of sections 311 and 312 of Title III.
Section 311(a)(3) of the conference substitute clarifies the treat-
ment of mixtures. The OSHA Hazard Communication Standard de-
fines a "hazardous chemical" as a "chemical which is a physical
hazard or a health hazard." A "chemical" is defined as "any ele-
ment, chemical compound or mixture of elements and/or com-
pounds." According to OSHA, inclusion of mixtures in this defini-
tion has resulted in the creation of MSDSs for over 50,000 products.
To address this, section 311(a)(3) makes it clear that an owner or
operator may meet the requirements of this section with respect to
a hazardous chemical which is a mixture, by submitting an MSDS
for each of the hazardous elements or compounds in the mixture. If
the mixture if determined to be a "hazardous chemical" but con-
tains no element or compounds which are hazardous chemicals,
then an MSDS must be submitted for such mixture. Once an MSDS
for a hazardous element or compound is submitted for one mixture,
an MSDS for the same element or compound contained in another
mixture would not have to be submitted. For purposes of the list,
only the elements or compounds need be listed, mixtures need not.
Of course, owners or operators are free to submit an MSDS on the
mixture itself, or list the mixture, totally at their discretion.
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An example of how this may work can be taken from the fra-
grance industry. Fragrances are produced by combining large num-
bers of chemical raw materials. A fragrance manufacturer may use
20 chemical elements, some of which may be hazardous, to produce
hundreds of mixtures. Under this provision, they need to list only
the elements or compounds, or provide the MSDS for each of the
elements and compounds. An MSDS on each mixture is not re-
quired. This is especially important in the fragrance area because,
by their very nature, the specific composition of these chemical
mixtures may constitute highly sensitive and valuable trade-secret
information, the disclosure of which could result in serious busi-
ness injury.
This approach may not, however, either be practical or possible
for customers who may obtain from the seller an MSDS for a mix-
ture they purchase which indicates that the mixture is a "hazard-
ous chemical." In such instances, the customer may lack the data
or it may not be practical to provide a separate MSDS for each haz-
ardous chemical in that mixture. In that situtation the customer
would list the mixture or provide an MSDS for the mixture to
State and local authorities under section 311. Moreover, in such in-
stances, the customer may not be told by the seller the identities of
some or all of the ingredients in the mixture because they are
claimed as trade secrets under the OSHA Standard. In that case,
the customer is only required to provide to State and local authori-
ties under section 311 the information known to it. Typically, this
would be limited to a copy of the MSDS received from the seller.
In order to reduce the potential burden on local emergency re-
sponse committees, the conference substitute provides that, at the
option of the facility, the requirements of this section cart be met
by filing with those specified to receive the MSDS a list of hazard-
ous chemicals present at the facility, grouped according to catego-
ries of health and physical hazards set forth in the OSHA Act and
its regulations. Where a list is supplied in lieu of individual
MSDSs, it must include, for each chemical, the chemical name or
common name and any hazardous component of each chemical, as
these were provided on the MSDS. Upon request of a local emer-
gency response committee, the actual MSDS would be provided by
the facility. A public request for the MSDS would be made through
that local emergency planning committee, which would be required
to obtain the MSDS from the facility and make it available.
Section 311(b) gives the Administrator authority to establish
threshold quantities for hazardous chemicals below which no facili-
ty would be required to report under section 311. In establishing
such quantities, the Administrator must take into account the total
quantity of a hazardous chemical present at a site. For example, in
the case of a manufacturer which produces or obtains benzene and
formulates 200 mixtures with the benzene, the threshold would
apply to the total benzene at the facility, regardless of whether it is
still in bulk storage or has been formulated into mixtures. Howev-
er, for persons who purchase mixtures which contain hazardous
chemicals in concentrations which may not be known to the pur-
chaser, the Administrator may establish thresholds based on the
total quantity of the mixture, including nonhazardous chemicals.
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Some companies voluntarily may prepare MSDSs for chemicals
that are not a physical hazard or health hazard within the mean-
ing of the OSHA standard. Because such a chemical is not a "haz-
ardous chemical" within the meaning of 29 CFR section
1910.1200(c) (and since an MSDS is not required for such a chemi-
cal under the OSHA standard), such a chemical would not be sub-
ject to the requirements of section 311 and section 312 of this Act.
SECTION 312—EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY
FORMS
Senate amendment—The Senate amendment establishes an
Emergency Inventory Form upon which, for all substances on
which an MSDS is required, information is reported regarding the
maximum amount of the hazardous chemical present at a facility
during the preceding calendar year (in ranges), a description of the
storage or use of the chemical, and its location. These reports
would be filed with local emergency committees, the Governor of
the relevant State and the EPA each year, or whenever a signifi-
cant change occurs in the amount or presence of such a chemical.
The first report would be filed within 6 months of enactment. EPA
could set threshold amounts of the substances, below which a facili-
ty would not be required to report.
House amendment—The House amendment provides for an
annual report containing similar information, as well as other in-
formation related to the substance and how it should be dealt with
in an emergency situation. The reports are to be provided only to
the local emergency response committee, with the first report due
18 months after enactment. EPA also has the authority to set re-
porting thresholds.
Under the House amendment this report has only to be filed for
substances which EPA determines, due to specific factors, are
likely to cause an imminent and substantial endangerment to
public health or the environment. The House amendment also con-
tains a provision for Superfund sites to provide these reports, and a
study by the Office of Technology Assessment of the advisability of
extending these reports to cover disposal sites regulated under
RCRA.
Conference substitute—The conference substitute establishes a
procedure to provide reporting of information on those chemicals
subject to reporting under the Senate amendment. To minimize the
burden of this reporting and to provide the information in a
manner which is of maximum usefulness to government emergency
response offices and personnel, other government officials with a
need for the information, and to the public, a "2-tier" process for
reporting is established. Under this approach, a summary of the in-
formation on the covered chemicals is provided in the form of an
annual report, with information on specific chemicals available
upon subsequent request made on a facility-by-facility basis. Fur-
ther, to provide for the development of a manageable program,
EPA is provided with the authority to establish reporting thresh-
olds, including thresholds set by classes of chemicals or categories
of facilities. In establishing quantity thresholds under section
312(b), the Administrator shall consider the degree to which the
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hazardous chemical, if released at the facility, would endanger the
health of individuals in the community, including emergency re-
sponse personnel.
Chemicals subject to reporting under subsection 312 are the same
as those subject to subsection 311. As in section 311, the conference
substitute clarifies the intent of the Congrees in the area of mix-
tures. The OSHA Hazard Communication Standard defines a "haz-
ardous chemical" as a "chemical which is a physical hazard or a
health hazard." A "chemical" is defined as "any element, chemical
compound or mixture of elements and/or compounds." Section 312
makes clear that an owner or operator may meet the requirements
of this section with respect to a hazardous chemical which is a mix-
ture, by submitting an inventory form for each of the hazardous
elements or compounds in the mixture. If the mixture is deter-
mined to be a "hazardous chemical" but contains no elements or
compounds which are hazardous chemicals, then an inventory form
must be submitted for such mixture. Of course, owners or operators
are free to submit an inventory form on the mixture itself, totally
at their discretion. If the facility owner or operator elects to submit
an inventory form for each hazardous element or compound in the
mixture (rather than for the mixture itself), the amounts of the ele-
ment or compound present in the pure state and in all mixtures at
the facility may be aggregated and reported on a single inventory
form as the aggregate amount of the element or compound present
at the facility as a whole.
The inventory form required under this section and the MSDS
information required under section 311 are intended to provide
both quantitative and qualitative information about the hazards of
covered chemicals. It is therefore important for MSDS information
submitted under section 311 to correspond with inventory informa-
tion submitted under this section. It is expected that a facility
owner or operator who elects under section 311(a)(3) to report on
mixtures by reporting on the elements or compounds of each mix-
ture will also report on the elements or compounds of such mix-
tures under this section. Similarly, if a facility owner or operator
elects under section 311(a)(3) to report on each mixture, it is expect-
ed that inventory forms will be provided for each such mixture.
The initial step in the 2-tier reporting provision is an annual
report provided to the local and State emergency response organi-
zations, and to the fire department with jurisdiction over the facili-
ty. The first report is to be provided on or before March 1, 1988,
with annual reports thereafter, each reflecting the preceding calen-
dar year.
The information contained in the "Tier I" report is an estimate
(in ranges) of the aggregate maximum and aggregate average daily
amounts (in ranges) and the general location, of each category of
hazardous chemicals at the facility. In establishing the breadth of
the ranges, the Administrator may consider the degree of precision
with which these broad categories of hazardous chemical can be re-
ported. The categories for these reports are to be the categories of
health and physical hazards as set forth under the Occupational
Safety and Health Act of 1970 and its regulations (i.e., carcinogens,
corrosives, irritants). EPA is provided with the authority to modify
the categories to group substances which present "similar hazards
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in an emergency" or to list "individual hazardous substances of
special concern to emergency response personnel" for reporting
purposes. Any modifications of categories for health or physical
hazards shall correspond to any similar modifications made under
the authority of section 311(a)(2)(A)(i).
The second stage of this information process involves reporting
on specific chemicals. Such reports would be provided upon specific
request for information from a particular facility. Therefore, under
the authority of this statute, no person, including a government of-
ficial, could establish as an annual reporting requirement the pro-
vision of these Tier II forms on specific chemicals.
The Tier II report on a specific chemical provided pursuant to a
request would include the same information on the specific chemi-
cal that is provided for the aggregate chemicals on the Tier I
report (although EPA could establish different ranges for each
report), as well as a description of the manner of storage of the
chemical and the location at the facility. In addition, the form
would indicate whether the location information is to be kept confi-
dential, consistent with section 324. The facility owner may always
elect to keep Tier II location information from public disclosure.
Unlike the Tier I information, which relates to categories of haz-
ardous chemicals, the Tier II information relates to individual
chemicals. The quantity of a particular chemical that is used in a
chemical manufacturing or processing operation may constitute
valuable trade-secret information. For that reason, if precise quan-
tities of the maximum and average daily amounts of the hazardous
chemicals had to be provided, compliance with section 312(d)(2)
might result in the compromise of valuable trade-secret informa-
tion.
Sections 312(d)(2) (B) and (C) have been drafted to avoid unneces-
sary disclosure of trade-secret information, while at the same time,
providing emergency response personnel, State and local officials,
and members of the public the information needed to evaluate the
nature and magnitude of potential public health hazards that
might arise in the event of a hazardous substance emergency and
to engage in effective emergency response planning. To that end,
sections 312(d)(2)(B) and (C) contemplate that maximum and aver-
age daily inventory information will be provided in ranges.
In order to protect chemical process trade-secret information, the
reporting ranges may need to be broad. At the same time, this is a
community right-to-know provision, and the purpose of this report
is to provide the public with information about chemicals at facili-
ties. The reporting ranges should provide a reasonable accommoda-
tion between the disclosure necessary for community right-to-know
and effective hazard evaluation and emergency response planning
on the one hand, and protection of legitimate trade-secret informa-
tion on the other, and not be broader than necessary to assure such
trade-secret protection. EPA may want to look at the ranges used
to develop the 1977 inventory reporting under section 8(b) of the
Toxic Substance Control Act for guidance.
As regards the process for obtaining Tier II information, the con-
ference substitute establishes separate procedures for (1) the State
emergency response commission and local emergency planning
committees and fire departments; (2) other State and local officials;
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and (3) the public. Those in the first category can obtain Tier II in-
formation upon their own request. Those other State and local offi-
cials in the second category may have access to the information
through the State commission or local committee, presumably
through the information coordinators appointed under subsection
301 of this Act. The request, if made by such an official acting in
his official capacity, may not be denied.
A process is established for public access to this information
which also operates through the State commission and local com-
mittee. A person seeking information on a specific chemical must
file a written request and indicate the specific facility for which in-
formation is requested. If the information has already been provid-
ed to a government official under the above procedure, the person
will be given access to that information. This provision is designed
to ensure that the public will have access to any Tier II informa-
tion which has been provided to State and local officials acting in
their official capacity, fire departments with jurisdiction over facili-
ties, State emergency planning commissions or local emergency
planning committees. It is intended that when forms are provided
to government officials in accordance with this section, copies of
such forms be retained in order to make them available to the
public. The information procedures to be developed under section
301 should provide that this occur so that a facility need only pro-
vide Tier II information once each year for each chemical.
If the local Emergency Planning Committee or State Emergency
Response Commission does not have the information in its posses-
sion, it is required to request information from the facility owner
or operator regarding hazardous chemicals for which more than
10,000 Ibs. were present at the facility at any time during the pre-
ceding calendar year. However, if less than 10,000 Ibs. of the chemi-
cal were stored at the facility, the Committee or Commission would
request the information if, in its discretion, it deemed such a re-
quest to be appropriate.
In order to assist the Committee or Commission in exercising
this discretion, the member of the public seeking the information
must include a statement explaining why the information is
needed. Based on this statement, the Committee or Commission
may or may not choose to make a request of the facility to provide
the information. Although the conference substitute establishes a
procedure for the public to have access to this information, and
business establishments are certainly a part of "the public," this
provision is not intended to provide a means for competitors to find
out confidential business information about each other. State emer-
gency response commissions and local emergency planning commit-
tees should exercise their discretion in light of this consideration.
A State commission or local committee must respond to a request
for Tier II information within 45 days of receiving that request.
The conference substitute also provides for access to the facilities
by the fire department of relevant jurisdiction to conduct an on-site
inspection of the facility. At such an inspection, the specific loca-
tion information and volume information on hazardous chemicals
would be provided.
Provisions contained in the House amendment related to the ap-
plicability of these requirements to Superfund sites and an OTA
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study regarding possible applicability to RCRA-regulated disposal
sites are not included in the conference substitute.
SECTION 313—Toxic CHEMICAL RELEASE FORMS
GENERAL
This section establishes requirements for annual reporting on re-
leases of certain toxic chemicals to the environment. This reporting
covers releases that occur as a result of normal business oper-
ations, as distinct from abnormal, emergency releases which must
be reported under section 304.
FACILITIES COVERED
Senate amendment—The Senate amendment applies to facilities
with ten or more employees that are in Standard Industrial Classi-
fication (SIC) Codes 20-39 (the manufacturing sector) and which
manufacture or process more than 200,000 pounds per year of
listed substances or which use more than 2,000 pounds per year of
such substance for purposes other than manufacturing or process-
ing. The President may apply the requirements of the bill to other
particular facilities if the President determines that such action is
warranted on the basis of proximity to other facilities that release
the substance, history of releases at such facility, and other factors.
This action may be taken by the President on his own motion or at
the request of a Governor of a State, with respect to facilities
within that State.
House amendment—The House amendment applies to any facili-
ty at which a listed extremely toxic substance is present during
any applicable 12-month period in excess of a cumulative threshold
amount established by the Administrator, and from which such
substance is released to the environment.
Conference substitute—The conference substitute combines ele-
ments of the Senate and House amendments. Coverage of facilities
is based on SIC Codes 20-39, except that the Administrator may
add or delete SIC Codes to the extent necessary to achieve the pur-
poses of this section. Additionally, the Administrator may apply
these requirements to other particular facilities as provided in the
Senate amendments.
Subparagraph 313 (b)(D(B) of the conference substitute provides
that the Administrator of EPA may add or delete SIC codes speci-
fied for coverage in the legislation. This authority is limited, how-
ever, to adding SIC codes for facilities which, like facilities within
the manufacturing sector SIC codes 20 through 39, manufacture,
process or use toxic chemicals in a manner such that reporting by
these facilities is relevant to the purposes of this section. Similarly,
the authority to delete SIC codes from within SIC codes 20 through
39 is limited to deleting SIC codes for facilities which, while within
the manufacturing sector SIC codes, manufacture, process or use
toxic chemicals in a manner more similar to facilities outside the
manufacturing sector. For example, facilities within SIC code 2875
mix or blend for sale at the retail level various fertilizer products
in response to specific customer needs. They may fall within SIC
codes 20 through 39 because this activity may be classified as a
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"mixing or blending," which generally is a manufacturing activity.
Yet, given the retail context and the nature of the blending and
mixing done by these specific facilities, reporting by such facilities
may not be appropriate. Subparagraph 313 (b)(l)(B) is intended to
provide EPA the authority to address issues regarding the coverage
of such facilities. It does not provide EPA the authority to change
the overall scope of the reporting program for Toxic Chemical Re-
lease Forms.
TOXIC CHEMICALS COVERED
Senate amendment—The Senate amendment applies to releases
to the environment of toxic chemical substances which, on the
basis of available information and in the judgment of the Presi-
dent, are manufactured in or imported into the United States in
aggregate quantities that exceed 500,000 pounds per year and, (i)
based on epidemiological or other population studies, generally ac-
cepted laboratory tests, or structural analysis are known to cause
or are suspected of causing in humans adverse acute health effects,
cancer, birth defects, heritable genetic mutations, or other health
effects such as reproductive dysfunction, neurological disorder, or
behavioral abnormalities, or (ii) because of toxicity, persistence, or
tendency to bioaccurnulate in the environment, may cause adverse
environmental effects. The President must publish a list of sub-
stances meeting these criteria by July 1, 1986. Unless and until
this list is published, the reporting requirements apply to specific
chemical substances identified in section 101 (14) of CERCLA. The
President is required to review and revise the list of chemicals no
less often than every two years. Any person may petition the Presi-
dent to add or delete a substance. The President also is authorized
to modify the quantitative thresholds described above related to
volume of chemical manufacture, processing or use, and aggregate
chemical manufacture and importation.
House amendment—The House amendment requires the Admin-
istrator, within 24 months of enactment, to publish a list of ex-
tremely toxic substances to be subject to specified reporting re-
quirements. These are to be hazardous substances and hazardous
chemicals that are so acutely toxic that their release into the envi-
ronment in any amount or form may present an imminent and
substantial endangerment to human health and chemicals (such as
vinyl chloride, benzene, asbestos, and poly chlorinated biphenyls)
which are known to cause or are suspected of causing cancer, birth
defects, heritable genetic mutations, or other chronic health effects
in humans. If the Administrator fails to publish such list within
such 24-month period, the list shall consist of the Acute Hazards
List developed by the Administrator as part of its Federal Initia-
tive for Responding to Accidental Releases of Air Toxics (described
in the July 26, 1985, notice from the Office of Solid Waste and
Emergency Response of the Environmental Protection Agency)
until such list is published.
Conference substitute—Subsection (d) of the conference agree-
ment requires reporting on listed toxic chemicals that cause, or
reasonably can be anticipated to cause, significant adverse acute
human health effects, various chronic human health effects, and
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significant adverse effects on the environment. A chemical should
be listed if the Administrator determines, in the Administrator's
judgment, that there is sufficient evidence to establish any one of
the following:
1. Acute human health effects—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 continu-
ous, or frequently recurring, releases.
In making this determination, the Administrator is to consider
individuals who are sensitive to a particular chemical. The deter-
mination that concentration levels capable of causing a significant
acute adverse effect are reasonably likely to exist beyond facility
site boundaries requires consideration of factors in addition to the
chemical toxicity and other properties of a substance. For example,
it is possible that a particular chemical, while it could cause a sig-
nificant acute adverse effect at a high concentration level, would
be very unlikely to reach that concentration level beyond the facili-
ty site boundary because of volume and pattern of use or release
and other chemical-specific factors. To include a substance on the
list on the basis of this criterion, the Administrator would deter-
mine that, within the United States, concentration levels that can
cause the effects described above are reasonably likely to occur as a
result of continuous or frequently recurring releases. The term
"continuous or frequently recurring releases" is included only to
distinguish routine releases that are a normal consequence of the
operation of the facility from the episodic and accidental releases
that are subject to section 304. There is no requirement to make
any facility-specific finding, and it is not necessary actually to dem-
onstrate these concentration levels or effects near any particular
facility.
The phrase "beyond facility site boundaries" means any point
outside the boundaries of the site on which the facility is located.
With regard to some types of chemicals and patterns of discharge
and dispersal, the highest concentration to which persons outside
the site boundary may be exposed will occur adjacent to the bound-
ary. In other cases, the highest concentration may occur some dis-
tance away, as when an air emissions plume cools and settles to
the ground.
2. Chronic human health effects—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.
The phrase "in humans" in subsection (d)(2)(B) clarifies that
health effects are to be considered insofar as they are or reason-
ably can be anticipated to be manifested in human beings as dis-
tinct from other organisms. It does not limit the Administrator to
considering only substances for which there are human data.
3. Adverse environmental effects—The chemical is known to
cause or can reasonably be anticipated to cause, because of—
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(i) its toxicity,
(ii) its toxicity and persistence in the environment, or—
(iii) its toxicity and tendency to bioaccumulate in the envi-
ronment,
a significant adverse effect on the environment of sufficient seri-
ousness, in the judgment of the Administrator, to warrant report-
ing under this section.
In determining what constitutes a significant adverse effect on
the environment that would warrant reporting under this section,
the Administrator should consider the extent to which the toxic
chemical causes or reasonably can be anticipated to cause any of
the following adverse reactions, even if restricted to the immediate
vicinity adjacent to the site:
(1) Gradual or sudden changes in the composition of animal life
or plant life, including fungal or microbial organisms in an area.
(2) Abnormal number of deaths of organisms (e.g. fish kills).
(3) Reduction of the reproductive success or the vigor of a species.
(4) Reduction in agricultural productivity, whether crops or live-
stock.
(5) Alterations in the behavior or distribution of a species.
(6) Long lasting or irreversible contamination of components of
the physical environment, especially in the case of groundwater,
and surface water and soil resources that have limited self-cleans-
ing capability.
The use of the term "bioaccumulate" is not intended to distin-
guish between this term and other technical terms, such as "bio-
concentrate" and "biomagnify" that sometimes are used inter-
changeably.
The number of toxic chemicals included on the list solely on the
basis of adverse environmental effects as described above may not
exceed 25 percent of the total number of listed chemicals.
In making a determination that a chemical meets any of the tox-
icity criteria under subsection (d)(2) the Administrator must consid-
er generally accepted scientific principles of toxicity evaluation or,
data from laboratory toxicity tests, or appropriately designed and
conducted epidemiological and other studies of populations, avail-
able to the Administrator.
The Administrator, in determining to list a chemical under any
of the above criteria, may, but is not required to, conduct new stud-
ies or risk assessments or perform site-specific analyses to establish
actual ambient concentrations or to document adverse effects at
any particular location.
Subsection (c) defines the list of toxic chemicals for which reports
under this section will be required. This list will include chemicals
designated in Senate Environment and Public Works Committee
Print No. 99-169 including any revisions to such list made by the
Administrator. The Administrator may add chemicals to the list or
delete chemicals from the list at any time on the basis of the crite-
ria set forth in section 313(d)(2). Any person may petition the Ad-
ministrator to add a toxic chemical to the list on the basis of the
acute or chronic human toxicity criteria. The Administrator must
respond to such a petition within 180 days, either by initiating a
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rulemaking to add or delete the chemical to the list or publishing
an explanation why the petition is denied.
A Governor of a State may petition the Administrator to add or
delete a chemical from the list. In response to a Governor's petition
to add (but not delete) a chemical to the list, the chemical auto-
matically must be added to the list within 180 days after receipt of
the petition unless the Administrator, within that time period, ini-
tiates a rulemaking to add the chemical to the list or publishes an
explanation why the chemical does not meet any of the criteria for
listing in section 313(d)(2). A chemical thus added to the list is sub-
ject to the same reporting requirements as all other chemicals on
the list. This procedure would not, of course, shift the burden of
proof in court from the Governor to EPA if EPA elects not to in-
clude a chemical proposed by a Governor on the list for reporting.
Subsection (d)(3) of the conference substitute provides that a
chemical may be deleted from the list if there is not sufficient evi-
dence to meet any of the criteria described in paragraph (2). A
chemical need only meet one of the three criteria listed in subpara-
graphs (A), (B) or (C) of paragraph (2) to be listed. Similarly, a
chemical will be deleted only if it fails to meet any of these three
criteria.
In cases where the list of chemicals for which reporting is re-
quired refers to compounds of a "chemical" which is a group of re-
lated chemicals rather than a specific chemical with accompanying;
Chemical Abstracts Service (CAS) number, the person submitting
the form may include aggregate data including all releases of those
individual chemicals on one reporting form rather than listing date
separately for each individual chemical in the group. Thus, for ex-
ample, a single form can be submitted for "polybrominated biphen-
yls" as listed in Senate Environment and Public Works Committee
Print No. 99-169 without identifying the individual polybrominated
biphenyls being released or reporting release data separately for
each one. This does not preclude the Administrator from requiring
reporting on individual chemicals for which aggregate reporting
otherwise would be required.
REPORTING THRESHOLDS
The conference substitute establishes certain threshold amounts
for purposes of reporting toxic chemicals. For the reports required
by July 1, 1988 on releases during calendar year 1987, reporting is
required of persons who manufacture or process more than 75,000
pounds per year. This threshold decreases over the next two years
to 50,000 pounds per year for the report due July 1, 1989, to 25,000
pounds per year for the report due July 1, 1990 and in subsequent
years. Reporting is required of facilities that use more than 10,000
pounds per year of listed chemicals for purposes other than manu-
facturing or processing of the chemical. The Administrator may
modify these threshold amounts for a particular chemical, provided
the revised threshold results in reporting on a substantial majority
of the aggregate releases of the chemical at facilities subject to this
section, but it would not necessarily require reporting from each fa-
cility.
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INFORMATION REQUIRED TO BE REPORTED
Senate amendment—The Senate amendment requires the Admin-
istrator to publish a form which will provide for the following in-
formation for each facility:
Name, location, and principal business activity.
Use or uses of each listed chemical.
Annual quantity of each chemical transported to the facility,
produced at the facility, and transported from the facility as
waste or product.
Annual quantity of each chemical entering each environ-
mental wastestream.
For each wastestream the waste treatment methods em-
ployed and annual quantity of the substance remaining in the
wastestream after treatment.
The Senate amendment allows facility owners to utilize readily
available data required to be collected by other laws, or reasonable
estimates where such data are not available. This section does not
establish monitoring requirements beyond those required by other
laws. The President must require that data be submitted in consist-
ent units.
Reporting by letter is required if the President has not published
the required form.
Data submitted under these requirements are to be made avail-
able to the public, consistent with the trade secret provisions of
these amendments and section 104(e) of CERCLA, as amended. In
addition, the President is required to computerize the submitted
data and make them available to any person by computer telecom-
munications on a cost-reimbursable user-fee basis.
The Senate amendment also provides criminal penalties for
knowingly omitting material information or making false state-
ments.
These information requirements do not preempt any state or
local law.
House amendment—The House amendment requires annual sub-
mission to local emergency response committees of status sheets on
extremely toxic substances listed under section 311(c). These status
sheets include:
The total amount of a listed chemical released to the envi-
ronment during the preceding 12 months
A summary of reportable quantity releases reported under
section 102 of CERCLA during the preceding 12 months and
A summary of reports to the State or the EPA Administra-
tor of discharges in excess of permits issued under the Clean
Air Act, the Federal Water Pollution Control Act, or the Solid
Waste Disposal Act.
Readily available data collected under requirements or other
laws may be used for reporting requirements, and the House
amendments do not require monitoring additional to that required
under other laws. Data submitted are to be made available to the
Siblic, consistent with trade secret provisions in section 322 of the
ouse amendments.
Conference substitute—The conference substitute requires the Ad-
ministrator, no later than June 1, 1987, to publish a uniform toxic
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chemical release form that facilities will use to report annual re-
leases to the environment. If the required form is not published, re-
ports containing the required information must be made by letter.
The form must provide for reporting of the following information:
Name, location, and principal business activities at the facili-
ty-
An appropriate certification regarding the accuracy and
completeness of the report, signed by a senior official with
management responsibility for the person or persons complet-
ing the report.
For each listed toxic chemical, whether the chemical is man-
ufactured, processed or otherwise used, with the general cate-
gory or categories of use;
an estimate of the maximum amounts (in ranges) of the toxic
chemical present at the facility during the preceding calendar
year;
for each wastestream, the methods of waste treatment or dis-
posal employed, and an estimate of the treatment efficiency
typically achieved by such methods for that wastestream; and,
the annual quantity of the toxic chemical entering each en-
viornmental medium.
The Administrator should include guidance regarding the certifi-
cation required by subsection (g)(l)(B) in regulations published
under this section. The purpose of the certification requirement is
to assure that a senior management official reviews the report for
accuracy and completeness.
The Administrator also should provide guidance regarding re-
porting of categories of use and ranges of amount of chemical
present at the facility. The conference substitute provides for re-
porting categories of use and ranges of chemicals present because
the exact use of an identified chemical at a facility or the exact
amount present may disclose secret processes. In some circum-
stances, this information may need to be reported in terms of broad
categories of use or amount ranges, similar to those utilized for the
inventory of chemical substances in commerce required under sec-
tion 8(b) of the Toxic Substances Control Act. However, consistent
with the community right-to-know purposes of this program, the
categories or ranges should be no broader than necessary to protect
the trade secret.
The estimate of treatment efficiency required to be reported
refers to the treatment efficiency typically achieved for each treat-
ed wastestream at that facility for the listed chemical as opposed to
other components of the waste stream. It does not refer to the
design efficiency or the optimum efficiency of the treatment
system, unless such efficiency typically is achieved in practice.
Reporting on releases to each environmental medium under sub-
section (g)(l)(C)(iv) of the conference substitute shall include, at a
minimum, releases to the air, water (surface water and groundwat-
er), land (surface and subsurface), and waste treatment and storage
facilities.
The purpose of this reporting requirement is to obtain available
information about releases of listed toxic chemicals to the environ-
ment. To lessen the reporting burden, the conference substitute
provides that readily available data (including monitoring data) col-
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lected pursuant to other provisions of law may be used for report-
ing under this section. Where data are not available reasonable es-
timates of amounts released may be used. The conference substi-
tute does not require monitoring or measurement of toxic chemical
releases beyond that required by other provisions of law. All moni-
toring or measurement data in the possession on the facility owner
or operator must be reported.
The annual reporting forms are required to be submitted to the
Administrator and to the State. The Administrator is required to
establish and maintain in a computer database a national toxic
chemical inventory based on data submitted under this section.
These data are required to be made accessible to any person by
computer telecommunication and other means on a cost reimbur-
seable basis. In determining the costs of this database for purposes
of reimbursement by users, the Administrator is to consider the
cost of that portion of depreciable equipment devoted to this data-
base as well as the cost of inputting the data, programming,
searching, etc. However, the resulting fee schedule is not to be pro-
hibitive with regard to public access, and the Administrator may
reduce or waive otherwise applicable fees when, in the Administra-
tor's judgment, such action is in the public interest and consistent
with the purposes of this section.
The Administrator also must make the data available by means
other than computer telecommunications, which may include re-
sponding to reasonable requests for printouts of data or analyses.
Also, the Administrator may choose to publish the inventory or
summaries of the data.
Subsection (h) describes the intended uses of the toxic chemical
release forms required to be submitted by this section and ex-
presses the purposes of this section. The information collected
under this section is intended to inform the general public and the
communities surrounding covered facilities about release of toxic
chemicals, to assist research, to aid in the development of regula-
tions, guidelines and standards, and for other similar purposes.
MODIFICATION IN REPORTING FREQUENCY
Senate amendment—The Senate amendment provides for three
reports, each covering the preceding calendar year. The reports are
due on June 30, 1987; June 30, 1990; and June 30, 1993.
House amendment—The House amendment requires that facili-
ties report annually beginning 21 months after enactment or 9
months after becoming a covered facility for emissions of the pre-
ceding 12 months.
Conference substitute—Subsection (i) requires annual reports be-
ginning in 1988 covering releases from the preceding calendar year.
Beginning with the report due in 1994, the Administrator may
alter the reporting frequency. The reporting period would continue
to be calendar year releases for the previous calendar year. Howev-
er, the Administrator could modify the reporting frequency either
nationally or in a specific geogrpahic area for (1) all toxic chemical
release forms under this section, (2) a class of toxic chemicals or a
category of facilities, (3) a specific toxic chemical, or (4) a specific
facility. These modifications may be different at different times.
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For some chemicals or facilities the reporting frequency might be
lengthened to two years, or three years, or longer. For others it
could remain annual. The frequency could be lengthened at one
point in time and shortened at another. A decision could even be
made to require no further reports.
To make any changes in reporting frequency the Administrator
must determine that several conditions have been met. The Admin-
istrator must conclude that a modification is consistent with the
objectives of this section as set out in subsection (h) based on expe-
rience from previously submitted forms and on a series of addition-
al determinations. These determinations are (1) the extent to which
the information has been used by the Administrator, other Federal
agencies, States, local governments, health professionals, and the
public; (2) the extent to which this information is readily available
to potential users from other sources and provided to the Adminis-
trator under other programs; and (3) when shortening the report-
ing frequency, the extent to which this change imposes additional
and unreasonable burdens on facilities submitting reports.
In making a determination to alter the reporting frequency of in-
formation under this section, if the Administrator determines that
specific localities or states regularly use information reported
under this section on an annual basis and that this information is
not readily available from other sources as determined by the Ad-
ministrator under section 313(i)(3), it is expected that the Adminis-
trator will modify the reporting frequency using specific geographic
limitations so as to preserve the annual availability of this infor-
mation to such specific localities and states.
Any determination must be made through a rulemaking proce-
dure under the Administration Procedures Act, and must be sup-
ported by substantial evidence. The Administrator must notify Con-
gress of an intention to initiate a rulemaking at least 12 months,
but no more than 24 months, before a rulemaking.
Finally, any modification to change a reporting frequency must
be reviewed at least once every 5 years to assure that the justifica-
tion for the modification remains valid.
Subsection (k) requires that by June 30, 1991, the Comptroller
General of the United States, in consultation with the Administra-
tor and the States, submit to Congress a report on this information
reporting program. The report will include a description of steps
taken to implement the program, the extent of usage of the infor-
mation collected, and options for modifying the requirements of
this section.
MASS BALANCE STUDY
Senate amendment—The Toxic Chemicals Release Inventory
Form submitted by each reporting facility would require the sub-
mission of information on the quantity of chemical substances
transported to the facility, produced at the facility, and transported
from the facility as wastes or products.
House amendment—No comparable provision.
Conference substitute—Subsection (1) requires the Administrator
to arrange for a study to be conducted by the National Academy of
Sciences to evaluate several concepts involving the use of mass bal-
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ance information. The report on the study must be submitted to
Congress within 5 years. The term "mass balance" is defined as the
accumulation of annual quantities of chemicals transported to, pro-
duced at, consumed at, used at, accumulated at, released from, and
transported from a facility as a waste or product. It is anticipated
that these quantities will be determined by a variety of methods
including direct measurements, engineering estimates, estimates
derived from differences between measurements, and other meth-
ods. In carrying out its responsibilities under this section the Na-
tional Academy of Sciences should include an assessment of the
quality of these measurements and the effect of inaccuracies on the
purposes of the study.
The Administrator is directed to acquire information from two
sources. First, the Administrator must acquire available mass bal-
ance information from States currently conducting or, within the
study period, initiating mass balance-oriented annual quantity
toxic chemical release programs. Second, if these programs fail to
provide an adequate representation of classes and categories of in-
dustry, the Administrator may acquire mass balance information
from a representative number of facilities in other States.
For example, assuming existing State programs include several
facilities which manufacture organic chemical products but only
one facility manufactures inorganic chemicals, the Administrator
could acquire the information from inorganic chemical manufac-
turing facilities in other States if the Administrator believed addi-
tional information was necessary for the study.
All information acquired under this section must be made avail-
able to the public except upon a showing satisfactory to the Admin-
istrator that the information is entitled to protection under confi-
dential business information provisions of section 1905 of title 18,
United States Code.
There are several purposes for conducting the study. First, it
should assess the value of mass balance analysis in determining
the accuracy of information on toxic chemical releases. Although
other provisions of this section require reporting of emissions, ques-
tions remain regarding the accuracy of these estimates. At issue is
whether mass balance analysis provides an effective method of as-
sessing the accuracy of these estimates.
Second, the study should answer questions regarding the value of
mass balance information or components of it, such as production
rate, in determining the waste reduction efficiency of different fa-
cilities or categories of facilities, and the effectiveness of toxic
chemical regulations. For example, can this information reasonably
be used to compare different facilities in the same business to de-
termine whether one is applying more rigorous environmental con-
trol than another, or delineate whether reduced releases of chem-
cials reflect improved control or limited operation?
Third, the study should assess the utility of such information for
evaluating toxic chemical management practices. For example, can
this information enhance assessments of whether facilities are al-
tering their operations to reduce the presence or release of toxic
chemicals?
Fourth, the study should evaluate the implications of implement-
ing a mass balance program concept on a national scale. This as-
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sessment should evaluate the value of information generated by
such a program to the public and to regulators and policymakers at
the local, State and national level together with the financial and
other resources needed by governments and facilities to implement
such a program and possible trade secret concerns that may arise.
Subparagraph (1)(3)(D) gives the Administrator enforceable au-
thority to require submission of information necessary for this
study.
SUBTITLE C—GENERAL PROVISIONS
SECTION 321—RELATIONSHIP TO OTHER LAW
Senate amendment—The Senate amendment provides that noth-
ing be construed to limit the ability of any State or locality to re-
quire submission of information related to hazardous substances,
toxic chemical substances, pollutants or contaminants or other ma-
terials, or to require the submission or distribution of information
related to hazardous substances.
House amendment—The House amendment provides that noth-
ing be construed to limit the ability of any State or locality to re-
quire submission of information related to hazardous chemicals or
to limit the authority of any State to preempt any local law relat-
ing to the submission of information related to hazardous chemi-
cals. However, the House amendment establishes certain require-
ments insofar as any State or local law related to the submission of
MSDS forms, or information supplemental to such forms.
Conference substitute—Reflecting the policy of the Senate amend-
ment and House amendment, the conference substitute provides
that this title does not preempt any State or local law or affect or
modify the obligations or liabilities of any person under other Fed-
eral law. The conference substitute incorporates the specific House
amendment provisions with regard to the MSDS forms.
SECTION 322—TRADE SECRETS
Senate amendment—The Senate amendment provides that no
person may claim that submitted information is a trade secret
unless such person shows at the time the claim is made that the
claimant has not disclosed the information to persons not entitled
or required to receive it, that the person has taken reasonable
measures to protect the information, that the information could
not reasonably be discovered by another person in the absence of
disclosure, and that the information provides a competitive advan-
tage and disclosure is likely to lead to substantial competitive
harm.
Certain information, however, may not be claimed a trade secret.
With respect to hazardous chemicals as defined by section 101(14)
of CERCLA, no person can claim as a trade secret the chemical
name, physical properties, health and environmental hazards, po-
tential routes of human exposure, disposal location, wastestream
identity and quantity monitoring data, or hydrogeologic, geologic or
groundwater monitoring data. With respect to toxic chemicals sub-
ject to reporting on annual releases, no person can claim the iden-
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tity of a chemical or the quantity and nature of release to be a
trade secret.
House amendment—The House amendment allows any facility
owner or operator submitting information to any person to with-
hold the identity of the chemical from the submittal, if the claim
that the chemical identity is a trade secret can be supported by
showing that the identity has not been disclosed to persons not en-
titled to receive it, that it is not required to be disclosed by other
Federal or State law, and that knowledge of the information may
give the submitter an opportunity to obtain an advantage over
competitors.
The Administrator is required to publish trade secret regulations
which are identical, consistent with the above provision, and except
for certain procedural variations, with regulations issued by the
Secretary of Labor in the Occupational Safety and Health Adminis-
tration Hazard Communication Rule. These regulations will be
published by the Secretary in accordance with the Federal court
ruling in United Steelworkers of America, AFL-CIO-CLE v. Thorne
G. Auchter.
In addition, the Administrator is required to establish a proce-
dure for any affected citizen to petition the Administrator to
review a trade secret claim.
Conference substitute—The Conference substitute combines ele-
ments of the House and Senate amendments. Like the House bill,
the conference agreement allows only the specific chemical identity
(including the chemical name and other specific identification) to
be claimed as a trade secret. The term "other specific identifica-
tion" refers to information other than the name of the chemical,
such as the Chemical Abstract Services (CAS) number, which
uniquely identifies the chemical. When the specific chemical identi-
ty is claimed as a trade secret, the generic class or category of the
hazardous chemical, extremely hazardous substance or toxic chemi-
cal must be submitted. Trade secret protection under this section
does not apply to extremely hazardous substances in a notification
required under section 304.
The generic class or category of chemical may be defined as
broadly as is needed to protect the specific chemical identity from
disclosure, but, consistent with the purpose of this title to provide
information to the community and the public, it should be defined
no more broadly than necessary to afford such protection. The Ad-
ministrator may give guidance for choosing such classes or catego-
ries in implementing regulations, drawing upon experience under
the Toxic Substances Control Act.
As explained below, any person entitled to withhold the specific
chemical identity from a submission required by this title under
sections 303(d)(2), 303(d)(3), 311, 312, and 313 must claim the identi-
ty is a trade secret on the basis of certain factors enumerated in
the conference agreement, explain in the submittal the reasons
why such information is claimed to be a trade secret, based on
these factors, and submit the withheld identity to the Administra-
tor together with a copy of the submittal.
Like the Senate bill, the conference substitute requires that a
claim that the specific chemical identity is entitled to protection as
a trade secret be documented at the time the claim is made. Con-
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sistent with the procedures in subsection (d), the claimant must
support a claim of trade secrecy with assertions of fact concerning
the criteria described below sufficient to show, if such assertions
are true, that the specific identity is a trade secret based on those
criteria.
The decision to claim that a specific chemical identity is a trade
secret can be made by each facility based on the factors enumer-
ated in section 322(b). In some cases a facility may purchase chemi-
cals the identity of which are not considered to be trade secrets by
the seller. However, the knowledge of their presence at the pur-
chasing facility could effectively define for its competitors the proc-
ess and/or products being made there. In such instances, these fa-
cilities may choose to claim these chemical identities as a trade
secret. Such determinations would be subject to the trade secret
claim limitations of this section.
No person may claim specific chemical identity as a trade secret
unless the person shows each of the following with regard to the
information withheld:
(1) That such person has not disclosed the information to any
other person, other than a member of a local emergency planning
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 confidentiality of such informa-
tion and intends to continue to take such measures.
(2) That the information is not required to be disclosed, or other-
wise made available, to the public under any other Federal or State
law.
(3) That disclosure of the information is likely to cause substan-
tial harm to the competitive position of such person.
(4) That the chemical identity is not readily discoverable through
reverse engineering.
The term "reverse engineering" is not defined by the conference
substitute. It is taken from the opinion of the United States Court
of Appeals for the Third Circuit in United Steelworkers of America,
AFL-CIO-CLC v. Thome G. Auchter, 763 F.2d 728. (3d Cir. 1985).
Regulations required to be published by the Administrator under
this section of the conference substitute are to be equivalent, with
respect to the reverse engineering factor, with comparable provi-
sions of the OSHA Hazard Communication Standard as it is revised
pursuant to the opinion described above. The requirement for
equivalence applies only to the reverse engineering factor in sub-
section (b)(4). The regulations under this section are to be "equiva-
lent" to comparable provisions of the OSHA regulations, rather
then identical to them, because the two regulations address differ-
ent types of reporting covering different forms of chemicals. The
OSHA regulation applies to chemicals in the workplace and chemi-
cals used in the manufacture of products, while this title applies
also to toxic chemicals released to environmental media. Thus, the
Administrator may consider the ability of persons to detect the
presence of a specific chemical at a facility by reverse engineering
applied to environmental media containing facility wastes as well
as to chemical products.
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Subsection (d) establishes procedures for review of claims that
specific chemical identity is a trade secret. This review may be ini-
tiated by the Administrator or it may be in response to a petition.
Any person may initiate such a petition.
If a petition for review of a trade secrecy claim is filed, the Ad-
ministrator is required within 30 days to review the explanation
for the claim filed by the claimant and determine whether the ex-
planation presents assertions which, if true, are sufficient to justify
the claim. The petitioner does not have the burden of demonstrat-
ing the inadequacy of an explanation submitted in support of a
trade secret claim.
If the Administrator finds that these assertions are sufficient,
the Administrator must notify the claimant that he has 30 days to
supplement the explanation with detailed information to support
the assertions. If, after review of the supplemental information, the
Administrator determines that the assertions in the explanation
are true and the specific chemical identity is a trade secret, the Ad-
ministrator must notify the petitioner of this determination. The
petitioner may seek judicial review of the determination. If the Ad-
ministrator determines, after review of the supplemental informa-
tion, that the assertions in the explanation are false and that the
specific chemical identity is not a trade secret, then the Adminis-
trator must notify the claimant that the Administrator intends to
release the specific chemical identity. The claimant then has 30
days to appeal the determination and may seek judicial review of
the determination if the appeal is unsuccessful.
Subsection (d)(4) establishes procedures to follow if the Adminis-
trator, in response to a petition or at his own initiative, determines
that the explanation that accompanied the claim of trade secrecy
presents insufficient assertions to support a finding that the chemi-
cal identity is a trade secret. In this case the Administrator is re-
quired to notify the claimant of this determination, and the claim-
ant has 30 days to appeal the Administrator's decision or, upon a
showing of good cause, to amend the original explanation by pro-
viding supplementary assertions to support the trade secret claim.
The opportunity to supplement the record on the basis of "good
cause" provides an opportunity to provide the Administrator with
information that was not available at the time the initial explana-
tion was submitted, information that was not called for under regu-
lations and guidance in effect at the time, that information was
mistakenly not provided by a claimant who otherwise has acted in
good faith to comply with requirements of this section, or for other
similar purposes. This opportunity should not be construed to di-
minish the obligation of the claimant to submit an initial explana-
tion that complies with the requirements of this section and appli-
cable regulations.
If the Administrator does not reverse his determination after an
appeal or review of supplementary material, then the Administra-
tor is required to notify the claimant, who may seek judicial review
of the Administrator's determination. If the Administrator does re-
verse his determination, then the procedures described above relat-
ed to review of detailed information in support of a claim shall be
followed.
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Nothing in this section or implementing regulations shall author-
ize any person to withhold information required to be submitted to
health professionals under section 323.
Subsection (f) provides that the explanation that must accompa-
ny a trade secret claim and any supplemental information required
to be submitted by the Administrator shall be available to the
public unless any person shows, to the satisfaction of the Adminis-
trator, that such information is entitled to protection as a trade
secret under section 1905 of Title 18 of the United States Code. In
such cases, the information shall be considered confidential, except
that it may be disclosed in whole or in part to other officers, em-
ployees, or authorized representatives of the United States con-
cerned with carrying out this title.
Subsection (g) requires the Administrator to provide trade secret
information to a State upon request of the Governor of the State.
Access to information under this subsection is not limited to infor-
mation pertaining to facilities within the State of the Governor
making the request. The provisions of section 325(d)(2) apply to the
Governor and State employees.
Subsection (h) requires that, when the specific chemical identity
is withheld from the public because of a claim of trade secrecy, ap-
propriate government officials will identify the appropriate adverse
effects associated with the chemical and provide this information to
any person requesting information about the chemical. In the case
of hazardous chemicals and extremely hazardous substances, the
local emergency response committee or the State emergency re-
sponse commission must perform this function with regard to the
adverse health effects associated with a hazardous chemical or ex-
tremely hazardous substance. In the case of toxic chemicals for
which annual release reporting is required under section 313, the
Administrator is to include health and enviromental effects infor-
mation in the computer database required to be maintained by sub-
section 313(i). The adverse effects identified should be described in
general terms so as not to provide a unique identifier of a particu-
lar trade secret chemical.
Subsection (i) provides that all information reported to or other-
wise obtained by the Administrator or his representatives under
this title shall be made available to a duly authorized committee of
Congress upon written request of such committee.
Since the Administrator will have records of trade secret chemi-
cal identity information, such information could be subject to re-
quests under the Freedom of Information Act (5 U.S.C. 552). That
Act prescribes short time deadlines for responding to requests for
records. Section 322 of the Conference substitute provides specific,
more extensive procedures for making trade secret determinations
for chemical identity information, including longer time limits for
the Administrator to act, and provides separate authority for peti-
tioners to seek judicial review of determinations that such informa-
tion constitutes a trade secret. As described above, section
326(a)(l)(B)(vi) provides a mechanism for seeking judicial review of
the Administrator's failure to respond to a petition. Accordingly,
with respect to requests for public access to specific chemical iden-
tity information claimed as trade secret under section 322, the pro-
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visions of the Conference substitute supersede the provisions of the
Freedom of Information Act.
SECTION 323—PROVISION OF INFORMATION TO HEALTH
PROFESSIONALS, DOCTORS AND NURSES
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment establishes provi-
sions which allow access to trade-secret information by various
health professionals who have a need for such information. It in-
cludes separate provisions related to access by treating physicians
or other health professionals faced with a medical emergency, a
physician or other health professional in instances where no medi-
cal emergency is present, and to State and local government health
professionals. Except for medical emergencies, a statement of need
is required when the information is requested and the person re-
questing the information must enter into a confidentiality agree-
ment limiting that person's use and disclosure of the information.
Conference substitute—The conference substitute adopts the
House amendment, with modification of the confidentiality agree-
ments required in certain circumstances by the House amendment.
In adopting provisions requiring a statement of need in specified
instances, it is not expected that this will add a significant burden
to those seeking access to the information. Nor is the confidential-
ity agreement any broader than that needed to protect as a trade
secret the specific chemical identify, as determined under section
322.
The confidentiality agreement normally should not prevent con-
sultation among health professionals or inhibit the normal dissemi-
nation of medical information, provided that the trade secret itself
is not compromised. In most cases, it is the linkage of a specific
chemical with a specific facility or company that constitutes the
trade secret. In that case, the confidentiality agreement should not
prevent a health professional from discussing in a public forum the
relationship between a specifically identified chemical and a par-
ticular disease, for example, so long as the chemical can not be
linked to the company that has claimed the specific chemical iden-
tity to be a trade secret.
SECTION 324—PUBLIC AVAILABILITY OF PLANS, DATA SHEETS, FORMS
AND FOLLOWUP NOTICES
Senate amendment—The Senate amendment requires that toxic
chemical release forms, MSDS and emergency and hazardous
chemical inventory forms be publicly available.
House amendment—The House amendment requires that all
such forms and reports be publicly available, and requires that
public notice be made of the availability of such forms.
Conference substitute—The conference substitute adopts provi-
sions for the public availability of such forms, and public notice of
such availability. With respect to making the information from the
toxic chemical release forms publicly available, it is understood
that the Administrator may fulfill this requirement by satisfying
the requirements of section 313(j).
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SECTION 325—ENFORCEMENT
Senate amendment—Failure by an owner or operator of a facility
to notify appropriate local emergency coordinators and governors
of a hazardous substance release is subject to a civil penalty, to be
assessed by the President, of not more than $10,000 for a first viola-
tion, $25,000 for a second, $50,000 for a third and $75,000 for a
fourth and subsequent violations. Procedures for assessing and
challenging the penalties are prescribed. Criminal penalties of
$25,000 or two years' imprisonment or both, for a first conviction of
failing to notify, and $50,000 or five years' imprisonment or both
for second or subsequent convictions are also provided. (Section 109
of the Senate bill).
The President may order a facility owner or operator to comply
with a requirement (1) to submit material safety data sheets or an
emergency inventory form to appropriate local, State or Federal of-
ficials (section 111 of the Senate bill); or (2) to notify the Governor
that the facility is subject to emergency planning requirements or
provide the local planning Committee with specified information.
(Section 127 of the Senate bill). Violation of, or failure to comply
with, the President's order subjects the violator to a civil penalty of
not more than $25,000 for each day of violation.
Any person who knowingly omits or falsifies or misrepresents in-
formation on the Toxic Chemical Release Inventory Form, upon
conviction shall be fined up to $25,000 or imprisoned for up to one
year, or both. (Section 110 of the Senate bill).
House amendment—Any facility owner or operator who violates
the requirements relating to hazardous substances reports, ex-
tremely toxic substances status sheets, or notification of a hazard-
ous substance emergency will be liable for a civil penalty up to
$20,000 for each violation.
Any owner or operator violating the requirements relating to
material safety data sheets, to providing information to health pro-
fessionals during a medical emergency, or to providing the Admin-
istrator with trade secret information when requested, will be sub-
ject to a civil penalty of up to $10,000 for each violation.
Doctors or nurses who request and are refused trade secrets in-
formation during a medical emergency may bring an action in Fed-
eral district court to require disclosure of the information.
The Attorney General is directed to conduct a study of the need
for, and appropriateness of, criminal penalties for violations of
emergency planning and community right to know provisions of
law.
Conference substitute—The conference substitute is a combina-
tion of House and Senate provisions. With respect to emergency
planning, section 325(a) gives the Administrator authority to order
an owner or operator to provide required notification to State or
local authorities under sections 302(c) and 303(d). A civil penalty of
up to $25,000 for each day of violation is provided.
Section 325(b) gives the Administrator authority to assess civil
penalties of $25,000 for each violation of the emergency notification
requirements of section 304. Provision is also made for administra-
tive and judicial penalties of $25,000 per day for a first violation
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and $75,000 per day for a second or subsequent violation, for each
day the violation continues.
Section 325(b)(l)(E)(4) establishes, in addition to civil penalties,
criminal penalties for any person who knowingly fails to provide
notice in accordance with section 304. Such criminal penalties, of
course, would not be mandatory should EPA determine that a vio-
lation has occurred, and standard prosecutorial discretion would
apply.
Section 325(c) provides for administrative and judicial civil penal-
ties of up to $25,000 for each day a violation of the reporting re-
quirements of sections 312 or 313 continues and up to $10,000 for
each day a violation of sections 311, 322 (a) and (f), and 323(b) con-
tinues.
Section 325(d) provides for administrative and judicial civil penal-
ties of up to $25,000 for assertion of a frivolous trade secret claim.
A criminal penalty of up to $20,000 or imprisonment of not more
than one year or both is provided for unlawful disclosure of trade
secret information.
Section 325(e) allows a health professional to bring an action in a
Federal district court to obtain information from an owner or oper-
ator that has been requested under section 323 when the request
has not been complied with.
Section 325(f) establishes procedures for the review and collection
of administrative civil penalties.
The Senate provision imposing criminal penalties for falsification
or misrepresentation of information on a Toxic Chemical Release
Inventory Form is deleted as unnecessary because of applicable
criminal penalties already in law under section 1001 of title 18 of
the United States Code.
SECTION 326—CIVIL ACTIONS
Senate amendment—Citizens are provided a right to sue in Fed-
eral court to enforce standards, regulations, conditions, require-
ments and orders under the notification, emergency planning and
hazardous substance inventory provisions of the Act and to seek
the performance of nondiscretionary duties under these provisions
by the President or delegees of the President. Prior to bringing
such suits in Federal district court, a citizen is required to give 90
days notice to the State and the Federal government, and, where
appropriate, to the alleged violator. No action may be brought
under this provision if the State or Federal government is diligent-
ly prosecuting an enforcement action for the same violation. Citi-
zens are granted a limited right to intervene in such governmental
enforcement actions brought in Federal courts. Conversely, the
President or a delegee may intervene as a matter of right in any
citizen action brought under this section. The court may award the
costs of litigation, including attorney fees, to any substantially pre-
vailing party. The court may order appropriate remedies for viola-
tions or failures to perform nondiscretionary duties, including the
payment of any civil penalties provided under the Act for the viola-
tion.
House amendment—No comparable provision.
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Conference substitute— The Senate provisions allowing any
person to bring enforcement actions are adopted with respect to
the following actions:
1. Against an owner or operator for failure to do any of the fol-
lowing:
(a) Submit a followup emergency notice under section 304(c).
(b) Submit a material safety data sheet or a list under sec-
tion 311(a).
(c) Complete and submit an inventory form under section
312(a) containing tier I information as described in section
312(dXD.
(d) Complete and submit a toxic chemical release form under
section 313(a).
2. Against the Administrator for failure to do any of the follow-
ing:
(a) Publish inventory forms under section 312(g).
(b) Respond to a petition to add or delete a chemical under
section 313(e)(l) within 180 days after receipt of the petition.
(c) Publish a toxic chemical release form under 313(g).
(d) Establish a computer database in accordance with section
(e) Promulgate trade secret regulations under section 322(c).
(f) Render a decision in response to a petition under section
322(d) within 9 months after receipt of the petition.
3. Against the Administrator, a State Governor, or a State emer-
gency response commission, for failure to provide a mechanism for
public availability of information in accordance with section 324(a).
4. Against a State Governor or a State emergency response com-
mission for failure to respond to a request for tier II information
under section 312(e)(3) within 120 days after the date of receipt of
the request.
State or local governments may commence a civil action against
an owner or operator who fails to do any of the following:
1. Provide notification to the emergency response commission in
the State under section 302(c).
2. Submit a material safety data sheet or a list under section
3. Make available information requested under section 311(c).
4. Prepare and submit an inventory form under section 312(a)
containing tier I information.
Any State emergency response commission or local emergency
planning committee and, in the case of section 312(e)(l), a fire de-
partment with jurisdiction over the facility, may commence a civil
action against an owner or operator of a facility for failure to pro-
vide information under section 303(d) or section 312(e)(l).
Any State may commence a civil action against the Administra-
tor for failure to provide information to the State under section
322(g).
Actions against an owner or operator must be brought in the dis-
trict court for the district in which the alleged violation occurred,
and any action against the Administrator may be brought in the
Federal District Court for the District of Columbia.
Prior to bringing suits, a person must give 60 days notice to the
Administrator, the appropriate State and local officials and the al-
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leged violator. No action may be brought under this section if the
Administrator is diligently prosecuting an enforcement action for
the same violation.
The court may order appropriate remedies for violations or fail-
ures to perform nondiscretionary duties, including the payment of
any civil penalties provided under the Act for the violation.
Citizens are granted a limited right to intervene in such govern-
mental enforcement actions brought in Federal courts. Conversely,
the Administrator or a delegee may intervene as a of right in any
citizen action brought under this section. The court may award the
costs of litigation, including attorney fees, to any substantially pre-
vailing party.
SECTION 327—EXEMPTION
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment provides exemption
from the requirements of this Title to the transportation, including
the storage incidental to transportation, of any hazardous chemical
or hazardous substance.
Conference substitute—The conference substitute adopts the
House amendment, clarified to assure the exemption of the trans-
portation and distribution of natural gas. Therefore, with the ex-
ception of the provisions relating to emergency notification, the
provisions of Title III do not apply to transportation or storage inci-
dental to such transportation. The exemption relating to storage is
limited to the storage of materials which are still moving under
active shipping papers and which have not reached the ultimate
consignee. This is consistent with the manner in which storage fa-
cilities are treated under the Hazardous Materials Transportation
Act. For example, storage of materials in rail cars or in motor car-
rier warehouses would be exempt from the requirements of Title
III (other than emergency notification) if the materials were under
active shipping papers. On the other hand, storage of materials in
facilities on the site of the consignor or consignee, even if such fa-
cilities are primarily transporatation-related, are subject to the
provisions of Title III, since the storage would occur either before
or after actual transportation of the materials.
SECTION 328—REGULATIONS
Senate amendment—The Senate amendment establishes Emer-
gency Planning and Community Right-to-Know provisions as a part
of CERCLA; provides general rulemaking authority to the Adminis-
trator under section 115 of CERCLA.
House amendment—The House amendment establishes rulemak-
ing authority for EPA on specific provisions, but includes no gener-
al rulemaking authority.
Conference substitute—The conference substitute establishes gen-
eral rulemaking for EPA Administrator.
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SECTION 329—DEFINITIONS
Senate amendment—The Senate amendment defines such terms
as were used in the Act.
House amendment—The House amendment defines such terms
as were used in the Act.
Conference substitute—The conference substitute defines the fol-
lowing terms, which are used in the Act: "Administrator", "envi-
ronment", "extremely hazardous substance", "facility", "hazardous
chemical", "hazardous substance emergency", "Material Safety
Data Sheet", "person", "release", "State", and "toxic chemcial".
SECTION 330—AUTHORIZATION OF APPROPRIATIONS
Senate amendment—The Senate amendment, which enacts Emer-
gency Planning and Community Right-to-Know provisions as part
of CERCLA, provides funding for the program from the "Super-
fund."
House amendment—The House amendment enacts Emergency
Planning and Community Right-to-Know as a free-standing title,
with funds to be provided under the existing EPA authorization.
Conference substitute—The conference substitute authorizes the
appropriation of such sums as may be necessary to carry out this
title for fiscal years beginning after September 30, 1986.
TITLE IV-RADON GAS AND INDOOR AIR QUALITY
RESEARCH
Senate amendment—The Senate amendment creates a new pro-
gram for indoor air quality research, including radon.
Section 502 includes findings of the Congress relating to radon
and other indoor air-pollutants. These include Congressional find-
ings that radon poses a serious health threat; that various other
indoor air pollutants may pose a health threat; that existing Feder-
al programs for research of radon and other indoor air pollutants
are fragmented and underfunded; and that an adequate informa-
tion base concerning radon and other indoor air pollutants should
be developed.
Section 503 provides the structure for the research program
within the Environmental Protection Agency. Subsection (a) pro-
vides that the EPA is to gather data on all aspects of indoor air
quality, coordinate Federal government and other research and de-
velopment activities, and assess appropriate Federal actions to
mitigate risks posed by radon and other pollutants.
Subsection (b) specifies that the research program must include
pollutants monitoring, research of health effects, research of con-
trol technologies, demonstration of control measures, and dissemi-
nation of information to the public.
Subsection (c) provides for an advisory group representing Feder-
al agencies and an advisory group representing States and other in-
terested parties to assist the EPA Administrator in development of
the research program.
Subsection (d) provides that the EPA is to submit an implemen-
tation plan for research under this section to the Congress within
ninety days of enactment.
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Subsection (e) provides for an interim report to Congress within
one year, identifying locations and amounts of radon within struc-
tures throughout the United States and providing guidance and
public information based on research findings to date.
Subsection (f) requires the Administrator to submit a report to
Congress within two years of enactment. The report is to describe
the state of knowledge concerning risks to human health of indoor
air pollutants; the locations and amounts of indoor air pollutants
in structures throughout the country; existing standards for indoor
air pollutants suggested by Federal and State governments or sci-
entific organizations and the risk to health associated with such
standards; research needs and the relative priority of these needs;
and the effectiveness of possible government actions to mitigate
health risks associated with indoor air quality problems.
Subsection (g) states that nothing in the provision authorizes the
Administrator to carry out any new regulatory program or other
activity other than research, development, information dissemina-
tion and coordination activities.
Subsection (h) provides an authorization of $3,000,000 for Fiscal
Years 1986 and 1987.
House amendment—The House amendment provides for a na-
tional assessment of radon gas and a demonstration program to
test methods of reducing or eliminating the threat to human
health of radon gas.
A national radon gas assessment program is to identify the loca-
tions in the United States where radon is collecting in residences
and other structures and assess the relative levels of radon at dif-
ferent locations, to determine the threat to public health of various
levels of radon at each tested location, and to determine methods
for reducing radon levels. The Administrator is to submit a report
to Congress within one year of enactment.
The EPA Administrator is also to conduct a demonstration pro-
gram to test methods of reducing or eliminating radon where it
poses a threat to public health. This demonstration program is to
be conducted in the Reading Prong area of Pennsylvania and New
Jersey, and at such other sites the Administrator considers appro-
priate. The Administrator is to submit interim and final reports on
the status of the demonstration program.
A total of $2,000,000 is authorized to be appropriated to carry out
these provisions in Fiscal Years 1986, 1987, and 1988.
Conference substitute—The conference substitute includes the
House and Senate provisions, modified.
The substitute establishes a program entitled "Radon Gas and
Indoor Air Quality Research."
The substitute includes findings based on those of the Senate
amendment concerning the health threat posed by radon and other
indoor air pollutants and the need for better coordination of re-
search and more complete information.
The substitute also includes provisions of the Senate amendment
concerning research program design, program requirements, advi-
sory committees, and implementation plan. The provision in the
Senate amendment requiring interim reports was deleted in the
conference substitute. Information that would have been provided
in that report will instead be provided through reports required
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under the national assessment and demonstration program provi-
sions from the House bill, which are included in the conference
substitute.
The substitute includes the national assessment of radon gas and
the radon mitigation demonstration program provided in the
House bill. These provisions, however, are included in section 118
of the Act, rather than Title IV.
The national assessment of radon is to be provided to Congress
within one year of the date of enactment of this Act. The assess-
ment is to address each of the points in the House provision and is
also to include guidance and public information materials based on
findings of research. The EPA is to address each item specified for
the assessment to the extent possible.
The conference substitute also adopts the radon mitigation dem-
onstration program to test methods and technologies of reducing or
eliminating radon gas and radon daughters where they pose a
threat to human health. The substitute revises the reporting provi-
sion of this subsection to provide that annual reports of the status
of the mitigation demonstration program are to be submitted to
Congress not later than February 1 of each year, beginning Febru-
ary 1, 1987. In addition, a provision is added to this subsection
specifying that liability, if any, for persons undertaking activities
pursuant to the program under this section shall be determined
under the principles of existing laws.
The Administrator shall take into consideration any demonstra-
tion program underway in the Reading Prong area of Pennsylva-
nia, New Jersey, and New York and at other sites prior to enact-
ment. The demonstration program under this section shall be con-
ducted in the Reading Prong, and at such other sites as the Admin-
istrator considers appropriate.
The substitute requires the Administrator to submit a report to
Congress within two years of enactment of this Act regarding ac-
tivities under this Title and making such recommendations as ap-
propriate. While the provisions regarding the content of the report
from the Senate amendment are not included in the substitute, it
is intended that the report provided an overall assessment of radon
and indoor air quality issues and that each of the provisions re-
garding report content from the Senate amendment be addressed
in the report called for in the substitute.
The substitute also includes the provision of the Senate amend-
ment which limits authority to research, development, and related
reporting, information, dissemination and coordination activities
specified in this section.
The substitute provides a total authorization of $5,000,000 to
carry out activities under this Title and section 118 relating to the
national assessment of radon and the radon mitigation demonstra-
tion program. The authorization is for Fiscal Years 1987, 1988, and
1989. In addition, the substitute provides that, of such sums appro-
priated in Fiscal Years 1987 and 1988, two-fifths are to be reserved
for implementation of the radon mitigation demonstration pro-
gram.
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OTHER PROVISIONS
ABATEMENT ACTIONS
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment amends Section 106
of CERCLA, which authorizes the President, through the Attorney
General and the appropriate Federal district court, to enjoin or
order the abatement of actual or threatened releases of hazardous
substances. Section 106 is amended to provide that these enforce-
ment authorities do not apply with respect to any release or threat-
ened release resulting from the normal application of a pesticide
product registered under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA).
Conference substitute—The Conferees have agreed not to include
the amendment proposed by the House which would have prohibit-
ed the use of Section 106 abatement authority for the normal appli-
cation of pesticide products registered under the Federal Insecti-
cide, Fungicide, and Rodenticide Act. By agreeing to delete the
House language, the Conferees do not intend to imply that the sec-
tion 106 authority may or may not be used to require those who
apply registered pesticides to undertake cleanup.
PESTICIDES
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—The House amendment inserts "normal"
prior to the phrase "application of a pesticide" in section 107(i).
Conference substitute—The conference substitute deletes the
House provision.
COMMENCEMENT OF DRILLING FLUIDS, ETC., STUDY
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section 208 of the House amendment re-
quires the Administrator of EPA to commence the study required
under section 8002(m) of the Solid Waste Disposal Act within 6
months after the date of enactment of these amendments.
Conference substitute—The conference deletes the House provi-
sion. The study has already begun.
RELEASES ASSOCIATED WITH BRINE DISPOSAL
Senate amendment—The Senate amendment contains no compa-
rable provision.
House amendment—Section 211 of the House amendment re-
quires the Administrator of EPA to conduct a review of State pro-
grams for protection of human health and the environment in
States which permit annular injection of brines associated with oil
and gas production. However, the review is to be conducted only in
States where there are more than 2500 active wells which use an-
nular injection. If the Administrator finds inadequate enforcement
of such State programs, the Administrator shall enforce the pro-
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gram or order such corrective action as may be necessary to assure
protection of human health and the environment from releases as-
sociated with annular injection or other brine disposal practices.
Civil penalties are provided for violation of or failure to comply
with any enforcement or corrective action taken or ordered by the
Administrator.
Finally, the House amendment requires that the review be com-
pleted, and any apprupriate enforcement or corrective action taken
or ordered, by the Administrator within 18 months after enactment
of this section.
Conference substitute—The conference substitute deletes the
House amendment. A similar provision has already been enacted
in the Safe Drinking Water Act Amendments of 1986, P.L. 99-339.
STATE MATCHING GRANTS
Senate amendment—Section 141 of the Senate amendment con-
tains a provision setting up a state matching grant program. The
Fund is made available to provide grants of up to $1 million per
State, to be matched by the State, for cleanup of small sites—in-
cluding sites where there are leaking underground storage tanks—
that are now covered under the Superfund program.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute deletes the
Senate provision.
ADMINISTRATIVE CONFERENCE
Senate amendment—Section 154 of the Senate amendment di-
rects the Administrator of the Environmental Protection Agency to
consider the 1984 recommendations of the Administrative Confer-
ence of the United States on alternatives to litigation in Superfund
cases.
House amendment—The House amendment contains no compara-
ble provision.
Conference substitute—The conference substitute deletes the
Senate amendment.
RECOMMENDED MAXIMUM CONTAMINANT LEVELS
Senate amendment—The Senate amendment contains at section
157 a requirement that the Director of the Office of Management
and Budget (OMB) complete review and release for publication a
list of Recommended Maximum Containment Levels (RMCLs) pro-
posed by the Administrator of the Environmental Protection
Agency under authority of the Safe Drinking Water Act and trans-
mitted to OMB for review pursuant to the provisions of Executive
Order 12291. A directive from the Congress mandating release of
the RMCLs is included in the Senate amendment because the OMB
review had extended for an inordinate period of time without
action or the promise of action in the near term.
House amendment—The House amendment contains no compara-
ble provision.
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Conference substitute—The conference substitute deletes the
Senate provision. Subsequent to inclusion of this provision in the
Senate amendment, the Office of Management and Budget did re-
lease the RMCLs, and they were published as proposed regulations
in the Federal Register on November 14, 1985, thus removing the
need for the provision in the conference agreement.
LEAD-FREE DRINKING WATER
Senate amendment—The Senate amendment contains a title III
provision which would prohibit the use of any pipe, solder or flux
in any public water supply system or plumbing use to provide
drinking water, require public notification by community water
systems to their consumers of the adverse affects of lead in drink-
ing water supplies, provide for state enforcement of these provi-
sions, ban the use of lead solder, pipe or flux in new construction
guaranteed by the Department of Housing and Urban Development
or the Veterans' Administration, and require labeling or lead
solder sold commercially as a hazardous substance under the Fed-
eral Hazardous Substances Act.
House amendment—The House amendment contains no compar-
ble provision.
Conference substitute—The conference substitute deletes the
Senate amendment. Subsequent to Senate adoption of these provi-
sions in the Superfund amendments, they were also included in the
conference report on the Safe Drinking Water Act Amendments of
1986 which become P.L. 99-339.
COMPREHENSIVE OIL POLLUTION LIABILITY AND COMPENSATION ACT
Senate amendment—The Senate bill contained no provisions re-
lating to comprehensive oil spill pollution liability and compensa-
tion.
House amendment—Title IV of the House bill contains the Com-
prehensive Oil Pollution Liability and Compensation Act of 1986.
Title IV proposes major versions to Federal law governing liability
and compensation for oil pollution.
Conference substitute—The conference substitute adopts the
Senate proposal that current law relating to oil pollution should
not be changed in the context of H.R. 2005. The Senate Conferees
agree to act on oil pollution liability and compensation legislation
separately before the end of the 99th Congress.
TITLE V. SUPERFUND FINANCING
A. HAZARDOUS SUBSTANCE RESPONSE TRUST FUND ("SUPERFUND")
1. TRUST FUND PROVISIONS
Prior and Present Law
Superfund financing sources
Amounts equivalent to excise taxes on petroleum and feedstock
chemicals (described below) were deposited in the Hazardous Sub-
stance Response Trust Fund ("Superfund"). These taxes expired on
September 30, 1985.
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In addition to taxes, $44 million was authorized to be appropri-
ated to the Superfund from general revenues for each of fiscal
years 1981-85 (an aggregate of $220 million). Total tax and general
revenue appropriations were intended to equal $1.6 billion over the
five-year period.
The following additional amounts also are deposited in the Su-
perfund:
(1) amounts recovered from parties responsible for hazardous
substance releases;
(2) penalties assessed against responsible parties; and
(3) punitive damages for failure to provide removal or reme-
dial action upon the order of the President.
Expenditure purposes
Amounts in the Superfund are available for expenditures in-
curred in connection with releases or threats of releases of hazard-
ous substances into the environment.
Allowable costs include the following:
(1) Costs of responding to the presence of hazardous substances
on land or in the water or air, including cleanup and removal of
such substances and remedial action.
(2) Certain costs related to response, including epidemiologic
studies and maintenance of emergency strike forces.
(3) Payment of assessment and damage claims for injury to, or
destruction or loss of, natural resources belonging to or controlled
by Federal or State governments. No more than 15 percent of Su-
perfund revenues attributable to taxes and general revenue appro-
priations may be used for the payment of natural resource assess-
ment and damage claims.
Administrative provisions
Claims against the Superfund may be paid only out of the fund.
If claims against the Superfund exceed the balance available for
payment of those claims, the claims are to be paid in full in the
order in which they are finally determined.
The Superfund has authority to borrow from general Treasury
funds for the purposes of paying response costs in connection with
a catastrophic spill or paying natural resource damage claims. Out-
standing advances at any time may not exceed estimated tax reve-
nues for the following 12 months; advances for paying natural re-
source claims may not exceed 15 percent of such revenues. All ad-
vances were required to be repaid by September. 30, 1985.
The Superfund was created as a trust fund in the Treasury
under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), but is not included under the trust
fund code of the Internal Revenue Code.
Repayable advances
The Superfund taxes expired on September 30, 1985. Since that
time, repayable advances have been made to the Superfund from
general revenues under P.L. 99-270 ($150 million advance), and
P.L. 99-411 ($48 million advance). These advances are to be repaid
with interest with revenues derived from future Superfund financ-
ing sources.
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House Bill
Superfund financing sources
Under the House bill, amounts equivalent to excise taxes on pe-
troleum, feedstock chemicals, a new tax on imported chemical de-
rivatives, and a new waste management tax, are to be deposited in
the Superfund for fiscal years 1986-1990. Additional excise taxes on
gasoline, diesel, and special motor fuels are to be used to fund a
separate trust fund for leaking underground storage tanks.
In addition to taxes, $316.6 million is authorized to be appropri-
ated to the Superfund from general revenues for each of fiscal
years 1986-1990 (an aggregate of $1.583 billion). Total tax and gen-
eral revenue appropriations, together with interest and estimated
recoveries, are estimated to equal $10.46 billion over the five-year
reauthorization period.l
Other financing sources (including recoveries, penalties, and pu-
nitive damages) are the same as under present law.
Expenditure purposes
The House bill generally retains the present-law Superfund ex-
penditure purposes. However, no further expenditures are allowed
for natural resource assessment and damage claims. Superfund
moneys are also to be available for a number of additional expendi-
ture purposes added by Title I of the House bill.
Administrative provisions
The Superfund is established as a trust fund under the Internal
Revenue Code. Administrative provisions generally are the same as
under present law; however, the Superfund has authority to
borrow for any authorized expenditure purpose, rather than only
for certain emergency purposes as under present law. Advances are
also not to be limited to estimated tax revenues for the following
12 months (as they are under present law).
Transfer of hazardous waste
Under the House bill, no Superfund moneys are to be available
for transfer of any hazardous substance from a facility at which a
release (or threatened release) has occurred to a facility for which
a final permit is in effect under section 3005(a) of the Solid Waste
Disposal Act, if (1) such permit was issued after January 1, 1983,
and before November 1, 1984; (2) the transfer is carried out pursu-
ant to a cooperative agreement between the EPA and the State;
and (3) fund moneys could not be used for the transfer, except for a
provision contained in Title I of the House bill.
Effective date
The Superfund trust fund provisions are effective November 1,
1985.
1 This figure includes amounts deposited in the Leaking Underground Storage Tank Trust
Fund.
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Senate Amendment
Superfund financing sources
Under the Senate amendment, amounts equivalent to excise
taxes on petroleum, feedstock chemicals, and a new Superfund
excise tax on manufacturers are to be deposited in the Superfund
for fiscal years 1986-1990. Total Superfund revenues for the five-
year reauthorization period (including interest, but not recoveries)
are intended to total $7.4 billion.
Other financing sources (including recoveries, penalties, and pu-
nitive damages) are the same as under present law.
Expenditure purposes
The Senate amendment retains the present-law Superfund ex-
penditure purposes (including resource assessment and damage
claims).
In addition to these expenditure purposes, Superfund moneys are
to be available for a number of additional expenditure purposes
added by Title I of the Senate amendment, including costs of
health assessments and toxicological profiles; technical assistance
grants (not to exceed $75,000 per facility); matching grants to
States for cleanup and stabilization of contaminated facilities (not
to exceed $1 million per year per State); a $15 million pilot pro-
gram for the removal of lead-contaminate soil; and research and
training progran ?.
Administrative provisions
The Senate amendment generally follows the House bill. Howev-
er, under the Senate amendment, outstanding advances to the Su-
perfund are limited to estimated tax revenues for the following 12
months (as under present law), with all advances required to be
repaid by December 31, 1990. The present-law 15-percent limit on
borrowings to pay natural resource assessment and damage claims
is also retained.
Transfer of hazardous waste
No provision.
Effective date
These provisions are effective on October 1, 1985.
Conference Agreement
Superfund financing sources
Under the conference agreement, amounts equivalent to excise
taxes on petroleum and feedstock chemicals, a new excise tax on
imported chemical derivatives, and a new environmental income
tax are to be deposited in the Superfund.
In addition to taxes, $250 million of general revenue appropria-
tions are authorized for the Superfund for each of fiscal years
1987-1991, for an aggregate of $1.25 billion. Total tax and general
revenue appropriations to the Superfund, together with interest
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and estimated recoveries, are intended to equal $8.5 billion over
the five-year reauthorization period.2
Other financing sources (including recoveries, penalties, and pu-
nitive damages) are the same as under present law.
Expenditure purposes
The conference agreement follows the House bill in deleting nat-
ural resource damage and assessment claims as a Superfund ex-
penditure purpose. Expenditures are permitted for the remaining
present law expenditure purposes and other purposes added by
Title I of the conference agreement. These include expenditures au-
thorized under section lll(a) (1), (2), (4), (5), and (6) and section
lll(c) (other than section 11 He) (1) and (2)) of CERCLA, as in effect
on the date of enactment of the conference agreement. Expendi-
tures also are permitted for purposes authorized by a later-enacted
law which is consistent with the purposes of these provisions.
Administrative provisions
The conference agreement follows the House bill, except that ad-
vances to the Superfund (including advances in fiscal year 1986)
may not exceed estimated tax revenues for the following 24
months. All advances must be repaid by December 31, 1991.
Transfer of hazardous waste
The conference agreement follows the House bill, with a clarify-
ing amendment.
Effective date
The Superfund trust fund provisions are effective on January 1,
1987.
Regulations
A number of provisions of Title V of this conference agreement
provide that the Secretary of the Treasury or his delegate is to pre-
scribe regulations. Notwithstanding any of these references, the
conferees intend that the Treasury may, prior to prescribing these
regulations, issue guidance for taxpayers with respect to the provi-
sions of the conference agreement by issuing Revenue Procedures,
Revenue Rulings, forms and instructions to forms, announcements,
or other publications or releases. The conferees expect that the
Treasury will provide taxpayers with this guidance as soon as
feasible.
2. PETROLEUM TAX
Prior Law
An excise tax of 0.79 cent per barrel was imposed on (1) crude oil
received at a United States refinery; and (2) petroleum products
(including crude oil, natural and refined gasoline, refined and re-
sidual oil, and certain other liquid hydrocarbon products) imported
2 This figure does not include amounts deposited in the Leaking Underground Storage Tank
Trust Fund, described below.
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into the United States for consumption, use, or warehousing. Reve-
nues equivalent to the tax were deposited in the Superfund.
A credit against the petroleum tax was allowed if tax had previ-
ously been imposed with respect to the same product. The petrole-
um tax expired on September 30, 1985.
House Bill
The petroleum tax is reimposed at a rate of 11.9 cents per barrel,
and extended through September 30, 1990. The reimposition of the
tax is effective on November 1, 1985.
Senate Amendment
The petroleum tax is extended at its prior-law rate.
The tax generally expires after September 30, 1990. The tax
would terminate earlier than September 30, 1990, if cumulative Su-
perfund receipts from taxes and interest during the 5-year period
reach $7.5 billion. The tax also would be suspended or terminated
under certain circumstances if the unobligated balance of the Su-
perfund exceeds $2.225 billion on September 30, 1988, or $3 billion
on September 30, 1989. The extension of the tax is effective on Oc-
tober 1, 1985.
Conference Agreement
Reimposition of petroleum tax
Under the conference agreement, the petroleum tax is reimposed
at a rate of 8.2 cents per barrel for domestic crude oil, and 11.7
cents per barrel for imported petroleum products (including import-
ed crude oil).3 Revenues equivalent to the tax are to be deposited in
the Superfund.
The petroleum tax generally expires on December 31, 1991. The
tax would terminate earlier than that date if cumulative Super-
fund tax receipts during the reauthorization period equal or exceed
$6.65 billion. Additionally, if (1) on December 31, 1989 or December
31, 1990, the unobligated balance of the Superfund exceeds $3.5 bil-
lion, and (2) the Secretary of the Treasury, in consultation with the
EPA Administrator, determines that such unobligated balance will
exceed $3.5 billion on December 31 of the next following calendar
year if no Superfund taxes are imposed during the intervening cal-
endar year, then no tax is to be imposed during the intervening
calendar year.
Credit for oil returned to pipeline
The conference agreement directs the Treasury Department to
provide rules allowing a credit against the petroleum tax if a refin-
er removes crude oil from a pipeline, and subsequently returns a
portion of such crude oil into a stream of crude oil in the same
pipeline. The amount of this credit is to equal the product of (1) the
rate of tax imposed on the crude oil removed from the pipeline by
the operator and (2) the number of barrels of crude oil returned to
3 Imported crude oil, which is subsequently received at a United States refinery, is to be taxed
at the higher import rate only.
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the pipeline by the operator. Petroleum for which a credit is re-
ceived is treated as not having been subject to tax. This provision is
intended to allow a credit in appropriate cases, without requiring
the tracing of specific quantities of previously taxed crude oil
which is mixed with other crude oil in the pipeline stream.
Effective date
These provisions are effective on January 1, 1987. The credit for
certain crude oil returned to a pipeline is to apply to crude oil re-
moved from a pipeline after that date.
3. TAX ON FEEDSTOCK CHEMICALS
Prior Law
Imposition of tax
An excise tax was imposed on the sale of 42 organic and inorgan-
ic substances ("feedstock chemicals") by a manufacturer, producer,
or importer, at the rates listed in Appendix A (attached). The tax
rates were set in 1980 and were limited to the lower of 2 percent of
estimated wholesale prices or a cap equal to (1) $4.87 per ton for
petrochemicals, and (2) $4.45 per ton for inorganic feedstocks. (Cer-
tain chemicals were taxed at lower rates.)
The feedstock chemicals tax applied to chemicals manufactured
in the United States (as defined for purposes of the petroleum tax)
or imported into the United States for consumption, use or ware-
housing. If a taxpayer used a taxable feedstock prior to sale, the
tax was imposed on such use.
If one taxable chemical was used to produce a second, the tax on
the first chemical was allowed as a credit against the second tax (to
the extent of that second tax). The feedstock chemicals tax expired
on September 30, 1985.
Exceptions to tax
Exceptions to the feedstock chemicals tax were provided for:
(1) butane or methane used as a fuel;
(2) nitric acid, sulfuric acid, ammonia, or methane used to
produce ammonia, if used to produce fertilizer;
(3) sulfuric acid produced solely as a by-product of (and on
the same site as) air pollution control equipment;
(4) any taxable feedstock to the extent derived from coal;
(5) petrochemicals used to manufacture or produce motor
fuel, diesel fuel, aviation fuel, or jet fuel; and
(6) cupric sulfate, cupric oxide, cuprous oxide, zinc chloride,
zinc sulfate, barium sulfide or lead oxide which exist in transi-
tory form in the process of refining nontaxable metal ores or
compounds into other (or purer) nontaxable compounds.
Treatment of exported feedstocks
No exemption was provided for exports of taxable feedstocks.
Tax treatment ofxylene
The Treasury Department had taken the position that xylene in-
cludes separated isomers of xylene for purposes of the feedstocks
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tax. Thus, the production (or use) of such isomers constituted a tax-
able event.
Treatment of inventory exchanges
Under proposed Treasury regulations, exchanges of taxable
chemicals were treated as sales of such chemicals.
House Bill
Reimposition of tax
The feedstock chemicals tax is reimposed subject to the modifica-
tions below, and extended through September 30, 1990.
Tax is imposed on prior-law feedstocks and, additionally, lead.
The tax rates are set at the lower of 2.0 percent, of current estimat-
ed wholesale price or a cap equal to $6.25 for all chemicals (except
xylene, discussed below), but not lower than the prior-law rate for
any taxed chemical (see Appendix A).
Beginning in 1987, the tax rates are to be indexed annually for
inflation, as measured by the average producer price index for or-
ganic or inorganic chemicals; however, tax rates are not to be re-
duced below the 1986 rates.
Under a special rule, the tax on nitric acid used by the producer
to produce nitrocellulose could not exceed 24 cents per ton. The re-
imposition of the tax is effective on November 1, 1985.
Exceptions to tax
The exception for coal-derived feedstocks is repealed; other prior-
law exceptions are retained. A conforming amendment is made
adding lead to the substances which are exempt from tax if they
exist in transitory form as part of a refining process.
In addition to the prior-law exceptions, exceptions to the feed-
stocks tax are provided for the following substances:
(1) nitric acid, sulfuric acid, ammonia, or methane used to
produce ammonia, if used (or sold for ultimate use) in the man-
ufacture or production of animal feed; and
(2) domestically recycled nickel, chromium, cobalt, or lead.
(This exception does not apply for a period during which a re-
quired corrective action under RCRA or CERCLA has not been
completed by the taxpayer.)
Effective date.—These provisions are effective on November 1,
1985.
Treatment of exported feedstocks
Taxable feedstocks sold for export by the manufacturer or pro-
ducer, or for resale by a second purchaser for export, are exempt
from tax.
If tax is paid on a chemical, and the chemical is later exported, a
credit or refund is allowed to the person who paid the tax.
Effective date.—This provision is effective on November 1, 1985.
Tax treatment of xylene
It is clarified that, except for imports and exports, xylene does
not include separated isomers for purposes of the feedstock tax.
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Separation of xylene isomers constitutes use of a mixed stream of
xylene and is treated as a taxable event.
Effective date.—This provision generally is effective November 1,
1985.
Taxes previously imposed on xylene (i.e., since April 1, 1981) are
to be refunded or credited (with interest) to the taxpayers. To com-
pensate for lost revenues, the tax rate on xylene is prospectively
increased above the $6.25 per ton rate that otherwise would apply
under the House bill (see Appendix A).
Treatment of inventory exchanges
Subject to registration and notification requirements, if invento-
ries of taxable chemicals are exchanged, tax is imposed only upon
the later sale or use of the chemical by the person receiving the
chemical in the exchange. This rule does not apply if the receiving
person would not be taxable on the sale of the chemical, unless
such treatment would be as a result of the exemption for exported
feedstocks (described above).
Effective date.—The amendment regarding inventory exchanges
applies retroactively to the original effective date of the feedstocks
tax. However, the amendment applies to any exchange before Jan-
uary 1, 1986, only if (1) the manufacturer, producer, or importer
did not treat the exchange as a taxable sale, and (2) the recipient
agrees to be treated as the taxable person for purposes of the tax.
The registration and notification requirements with respect to in-
ventory exchanges apply to exchanges after December 31, 1985.
Senate Amendment
Extension of tax
Under the Senate amendment, the feedstocks tax is extended at
its prior-law rates (see Appendix A).
The tax generally expires after September 30, 1990. Provisions
are made for earlier suspension or termination of the tax under
the same conditions as the petroleum tax (see A.2., above).
Effective date.—The extension of the tax is effective on October
1, 1985.
Exceptions to tax
The Senate amendment retains the prior-law exceptions to the
feedstock tax, including the exception for coal-derived feedstocks.
As under the House bill, exceptions to the tax are added for:
(1) nitric acid, sulfuric acid, ammonia, or methane used to
produce ammonia, if used (or sold for ultimate use) in the man-
ufacture or production of animal feed; and
(2) domestically-recycled nickel, chromium, or cobalt. (Lead is
not taxed under the Senate amendment.)
The exception for recycled substances does not apply for any
period during which the taxpayer has been notified that it is a po-
tentially responsible party for a site listed on the National Prior-
ities List, unless the taxpayer is in compliance with all orders, no-
tices, and judgments (under RCRA or CERCLA) with respect to the
site.
Effective date.—This provision is effective on October 1, 1985.
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Treatment of exported feedstocks
The Senate amendment is the same as the House bill.
Effective date.—This provision is effective on October 1, 1985.
Tax treatment ofxylene
No provision.
Treatment of inventory exchanges
The Senate amendment is the same as the House bill but does
not include the requirement that, for pre-1986 exchanges, the recip^
lent must agree to be treated as the taxable person in order for the
amendment to apply.
Conference Agreement
Reimposition of tax
The conference agreement follows the Senate amendment by re-
imposing the tax on feedstock chemicals at its prior law rates
(except in the case of xylene, discussed below). No tax is imposed
on lead or on any other chemical not taxed under prior law.
The tax on feedstock chemicals generally expires on December
31, 1991. The tax would be suspended or terminated earlier than
that date under the same conditions as the petroleum tax.
Effective date.—The reimposition of the tax is effective on Janu-
ary 1, 1987.
Exceptions to tax
The conference agreement follows the Senate amendment by re-
taining the present law exception for coal-derived feedstocks. Other
present law exceptions also are retained.
The conference agreement follows the House bill and the Senate
amendment by providing additional exceptions for:
(1) nitric acid, sulfuric acid, ammonia, or methane used to
produce ammonia, if such chemicals are used (or sold for ulti-
mate use) in the manufacture or production of animal feed,
and
(2) domestically recycled nickel, chromium, or cobalt.
As under the House bill, the recycling exception does not apply
for any period during which a required corrective action under
RCRA or CERCLA with respect to the recycling unit has not been
completed by the taxpayer. Under a special rule, corrective actions
(or the portions of corrective actions) relating to contamination of
groundwater are to be treated as completed, for purposes of the re-
cycling exception only, 10 years after the date on which the correc-
tive action is required by the EPA Administrator (or a State acting
pursuant to an authorized program). This special rule applies only
if the taxpayer is in compliance with all orders, notices, and judg-
ments under RCRA or CERCLA with respect to the site.
Effective date.—These provisions are effective on January 1,
1987.
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Treatment of exported feedstocks
The conference agreement follows the House bill and the Senate
amendment.
In addition to exempting exported feedstocks, the conference
agreement allows a credit or refund (without interest) of taxes on
feedstock chemicals which are used as materials in the manufac-
ture or production of certain exported substances. The exported
substances which trigger this credit or refund are to be the same as
the substances taxed under the new tax on imported chemical de-
rivatives (described in A.4, below). The credit or refund is to be
made to the person who paid the feedstocks tax.4
Effective dates.—The exception for exported feedstocks is effec-
tive on January 1, 1987.
The allowance of a credit or refund for feedstocks used in the
manufacture or production of certain exported substances is effec-
tive on January 1, 1989.
Tax treatment of xylene
The conference agreement follows the House bill.
Effective date.—This provision generally is effective on January
1, 1987.
Taxpayers who previously paid the tax imposed on xylene (i.e.,
from April 1, 1981, through September 30, 1985) may file claim for
refund of the tax (with interest). The statute of limitations is ex-
tended to permit such refunds or credits. Such credits or refunds
apply, under the conference agreement, only if the person who
would otherwise be liable for the tax meets requirements similar to
the general Code rules regarding credits or refunds of manufac-
tures' or retailers' excise taxes (sec. 6416(a)).5 However, if the man-
ufacturer separately stated the tax and the purchaser did not pay
the tax, then the refund or credit is allowable to the manufacturer.
To compensate for lost revenues, the tax rate on xylene is tempo-
rarily increased, only for the duration of the five-year reauthoriza-
tion period, from $4.87 to $10.13 per ton.
Treatment of inventory exchanges
The conference agreement follows the House bill.
Effective date.—The amendment regarding inventory exchanges
applies retroactively to the original effective date of the feedstocks
tax (April 1, 1981). However, the amendment applies to any ex-
change before January 1, 1987, only if (1) the manufacturer, pro-
ducer, or importer did not treat the exchange as a taxable sale, and
(2) the recipient agrees to be treated as the taxable person for pur-
poses of the tax.
The registration and notification requirements with respect to in-
ventory exchanges apply to exchanges after December 31, 1986.
4 As in the case of exported feedstocks, this person is required to repay the amount of tax to
the exporter, or obtain the exporter's written consent to the credit or refund, in order to receive
the credit or refund
5 In general, sec 6416(a) allows a credit or refund only if the person who paid the tax estab-
lishes under regulations that he (1) has not included the tax in the price of the article and has
not collected the amount of tax from the purchaser, or (2) has repaid the amount of tax to the
ultimate purchaser of the article, or obtained his written consent to the purchase or reiund
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Treatment of mixed hydrocarbon streams containing taxable feed-
stocks
Under the conference agreement, no tax is imposed on any or-
ganic taxable chemical while it is part of an intermediate hydro-
carbon stream containing a mixture of different organic taxable
chemicals. Instead, the isolation, extraction, or other removal of an
organic taxable chemical from such a stream (or any other event
causing the chemical to cease being part of the stream) is treated
as a taxable use by the person causing such removal, and the tax is
imposed on such person. This provision applies only if registration
and certification requirements, similar to those imposed with re-
spect to inventory exchanges, are satisfied. For purposes of this
provision, organic taxable chemicals include any taxable feedstock
chemical which is an organic substance.6
Effective date.—This provision applies retroactively to the origi-
nal effective date of the feedstocks tax (April 1, 1981). As in the
case of the rule regarding inventory exchanges, the provision ap-
plies to sales of any intermediate hydrocarbon stream before Janu-
ary 1, 1987, only if (1) the manufacturer, producer, or importer of
the mixed hydrocarbon stream did not treat the sale of such
stream as a taxable sale, and (2) the purchaser agrees to be treated
as the taxable person for purposes of the tax.
The registration and notification requirements with respect to
mixed hydrocarbon streams are effective on January 1, 1987.
4. TAX ON IMPORTED CHEMICAL DERIVATIVES
Prior Law
Crude oil, certain petroleum products, or taxable feedstock
chemicals imported into the United States were subject to the pe-
troleum or feedstocks tax (see A.2. and A.3., above). No tax was im-
posed on imports of products that are derived from these materials.
House Bill
Imposition of tax
A tax is imposed on the sale of any listed chemical derivative by
the importer thereof. The initial list includes 47 chemical deriva-
tives (see Appendix B).
The Secretary of the Treasury is to list any other imported sub-
stances determined to have more than 50 percent of their value de-
rived from petroleum or taxable feedstock chemicals used as mate-
rials or process fuel. This determination is to be based on the pre-
dominant method of production. The Treasury may delist sub-
stances (including initially listed substances) as necessary to cany
out the purposes of the tax.
Substances are taxable only if listed at the time of sale or use by
the importer.
6 Taxable organic chemicals include the first 11 listed substances in section 4661 of the Code
(acetylene, benzene, butane, butylene, butadiene, ethylene, methane, naphthalene, propylene,
toluene, and xylene).
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Amount of tax
The amount of tax is—
(1) the amount of tax which would have been imposed under
the feedstocks tax on the taxable chemicals used as materials
or process fuel, if such taxable chemicals had been sold in the
United States for an equivalent use; or
(2) if the importer does not furnish sufficient information to
determine the tax under (1) above, 5 percent of the appraised
value of the imported substance at the time of import.
Procedure and definitions
The tax is imposed on the importer of a listed substance at the
time such substance is sold or used. No tax is imposed if the petro-
leum or feedstock chemical taxes are imposed on the same sale or
use.
The United States includes Puerto Rico and specified U.S. posses-
sions (as defined for purposes of the petroleum and feedstock
taxes).
Revenues from the tax are not covered over to Puerto Rico or the
Virgin Islands under section 7652 of the Code.
Termination date
The tax terminates on September 30, 1990.
Effecive date
The tax on imported chemical derivatives is effective on January
1, 1987.
Senate Amendment
No provision.
Conference Agreement
The conference agreement generally follows the House bill with
an amendment.
Under the conference agreement, the amount of tax imposed on
a listed imported chemical derivative is the amount of tax which
would have been imposed by the feedstocks tax on the taxable
chemicals used as materials (and not process fuel) if such taxable
chemicals had been sold in the United States for an equivalent use.
If the importer does not furnish sufficient information (at such
time and manner as the Secretary may require) the amount of tax
is 5 percent of the customs value of the imported chemical deriva-
tive.
Under the conference agreement, a chemical derivative must be
listed by the Secretary of the Treasury in order to be subject to this
tax.
An initial list of taxable substances is specified in the statute.
This initial list includes the 47 chemical derivatives in the House
bill, as well as acrylonitrile and methanol. The Secretary may
delist substances (including statutorily listed substances) as neces-
sary to carry put the purposes of the tax; however, acrylonitrile
may not be delisted.
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In addition, the Secretary is to add chemical derivatives to this
list if taxable feedstocks (under sec. 4661) comprise over 50 percent
of the molecular weight of the raw materials used to produce the
chemical derivative. The Secretary is to make this determination
on the basis of the predominant method of production (with respect
to imported derivatives) using stoichiometric material consumption
assuming a 100-percent yield.
The Secretary may also add a chemical derivative to the list if
taxable feedstocks comprise over 50 percent of the value of the raw
materials used to produce the chemical derivative.
The provision is effective for imports of chemical derivatives on
or after January 1, 1989.
The conference agreement also provides that the Secretary shall
conduct a study of issues related to the implementation of the tax
on imported chemical derivatives and the credit allowable for tax-
able feedstocks used in the production of exported chemical deriva-
tives. This study is to be done after consultation with both the Ad-
ministrator of the Environmental Protection Agency and the Inter-
national Trade Commission. The report of the study is to be sub-
mitted to the House Committee on Ways and Means the Senate
Committee on Finance no later than January 1, 1988.
5. WASTE MANAGEMENT TAX
Present Law
No provision. (A dry-weight tax on hazardous waste was imposed
for purposes of funding the Post-closure Liability Trust Fund, dis-
cussed in A.7., below; the authority to collect this tax expired on
September 30, 1985.)
House Bill
Imposition of tax
Under the House bill, an excise tax is imposed on the disposal,
treatment or export of hazardous waste. A "back-up" tax, discussed
below, is also imposed on hazardous waste that is not otherwise the
subject of a taxable event within 270 days of generation, and that
is not exempt from the waste management tax.
The tax is imposed on (1) the receipt of hazardous waste at a
qualified hazardous waste management unit, (2) the receipt of haz-
ardous waste for transport from the United States for the purpose
of ocean disposal, and (3) the export of hazardous waste from the
United States. A "qualified hazardous waste management unit"
means the specified area of land or structure which isolates hazard-
ous wastes within a qualified hazardous waste management facili-
ty, and which is subject to interim status or final permit require-
ments under subtitle C of the Solid Waste Disposal Act. A "quali-
fied hazardous waste management facility" means any facility (as
defined under subtitle C of the Solid Waste Disposal Act) which has
received a permit or interim status under section 3005(c) of the
Solid Waste Disposal Act or an authorized State program.
Hazardous waste is defined as any waste which is listed or identi-
fied under section 3001 of the Solid Waste Disposal Act as of the
date on enactment, and which is not subsequently delisted. Thus,
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wastes the regulation of which has been suspended under present
law (e.g., certain mining wastes) are not subject to the tax.
Tax rates
Under the House bill, the amount of tax imposed per ton of haz-
ardous waste (on a wet-weight basis) is determined in accordance
with the following table:
If the taxable event is:
land disposal (tax Any other taxable
pec ton) event
For calendar year
1986
1987
1988
1989
1990.
$37
39
42
. . 44
47
$415
415
415
415
415
The land disposal rate applies to hazardous waste received at a
landfill, surface impoundment, waste pile, or land treatment unit,
each as defined by EPA pursuant to sections 3004 and 3005 of the
Solid Waste Disposal Act. The land disposal rate does not apply to
surface impoundments which are part of waste water treatment
systems or of deep well injection units.
The lower (i.e., $4.15 per ton) tax rate applies to all other taxable
events, including (1) ocean disposal of hazardous waste, (2) export of
hazardous waste, and (3) receipt of hazardous waste at other quali-
fied hazardous management units (i.e., other than for land disposal)
including deep well injection facilities. For this purpose, deep well
injection facilities include any containers, tanks, or surface im-
poundments principally used to treat or store hazardous waste
before underground injection.
Exemptions and credits
Waste water treatment.—Hazardous waste received at a waste
water treatment unit is exempt from tax unless a corrective action
order remains uncompleted with respect to the facility. A waste
water treatment unit is any qualified hazardous waste manage-
ment unit which is an integral and necessary part of a waste water
treatment system, other than a unit which receives concentrated
treatment residues for storage or final disposition.
The exemption for waste water treatment units is not allowed
with respect to any activity conducted at a facility (or part thereof)
while a required corrective action remains uncompleted with re-
spect to such facility (or part of such facility). If a corrective action
is uncompleted, tax is imposed at a rate of 15 cents per ton on
waste received at the waste water treatment unit.
Incineration.—A credit or refund of tax (without interest) is pro-
vided for waste that is incinerated on land (or the equivalent of in-
ceration on land) within 90 days after the date on which such
waste is first received at a qualified hazardous waste management
unit.
Qualified chemical fuels or solvents.—A credit or refund is pro-
vided (without interest) for tax imposed on waste used in the pro-
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duction of any qualified chemical fuel or solvent for use in any
commercial or industrial application. A qualified chemical fuel or
solvent is any chemical fuel or solvent determined by the Adminis-
tration not to be hazardous.
Recycling of batteries.—A credit or refund (without interest) is
provided for tax paid on the receipt of a battery at a qualified haz-
ardous waste management unit if recycling of such battery com-
mences within 90 days of receipt.
Corrective and remedial actions.—Exemptions are provided in the
following cases:
(1) receipt or export of hazardous waste pursuant to correc-
tive actions required by an order or permit issued by the EPA
Administrator under the Solid Waste Disposal Act (or by a
State under an authorized program);
(2) receipt or export of hazardous waste pursuant to a pro-
posed or final closure plan approved by the Administrator or
an authorized State;
(3) receipt or export of hazardous waste pursuant to a remov-
al or remedial action under CERCLA, if the response action
has been selected or approved by the EPA Administrator; or
(4) receipt or export of hazardous waste pursuant to an
action to correct an emergency situation arising from a prod-
uct spill which is certified by the Administrator to the Secre-
tary as carrying out the purposes of CERCLA.
Federally-owned facilities.—Hazardous waste received at a feder-
ally owned facility is not subject to the tax.
Payment of tax.—The waste management tax is payable by (1)
the owner or operator of a qualified hazardous waste management
unit; (2) in the case of ocean disposal, the owner or operator of the
vessel or aircraft engaged in ocean disposal; or (3) in the case of
export, the exporter of hazardous waste.
Termination date
The waste management tax generally expires on September 30,
1990.
Effective date.—The tax is effective with respect to hazardous
waste received or exported after December 31, 1985.
"Backup" tax on generation and hazardous waste
A "backup" tax is imposed on hazardous waste which 270 days
after generation has not been (1) received at a qualified hazardous
waste management unit, (2) received for transport from the United
States for the purpose of ocean disposal, or (3) exported from the
United States. The generator of the waste is liable for the tax.
The backup tax is imposed at the rate applicable for land dispos-
al. However, the Treasury Department may prescribe regulations
which provide exemptions from the backup tax (or a reduced rate)
as may be consistent with the purposes of the backup tax.
The backup tax does not apply to waste generated after Septem-
ber 30,1990.
Effective date.—The backup tax is effective with respect to haz-
ardous waste generated after December 31, 1985.
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Senate Amendment
No provision.
Conference Agreement
The conference agreement follows the Senate amendment.
6. ENVIRONMENTAL TAX
Present Law
Alternative minimum taxable income
Under the conference agreement on the Tax Reform Act of 1986
(H.R. 3838),7 as passed by the House on September 25, 1986, and
the Senate on September 27, 1986, an alternative minimum tax is
imposed on corporations. The tax rate is 20 percent, and there is a
$40,000 exemption amount (phased out at the rate of 25 cents on
the dollar for alternative minimum taxable income in excess of
$150,000).
The items of tax preference include accelerated depreciation in
excess of the alternative depreciation system for property (other
than transitional property) placed in service after 1986; intangible
drilling costs (with an offset for 65 percent of net oil and gas
income); percentage depletion (in excess of the adjusted basis of the
property); bad debt reserve deductions for financial institutions; use
of the completed contract method of accounting and of the install-
ment method; capital construction funds for shipping companies;
60-month amortization of certified pollution control facilities; and
mining exploration and development costs. Tax-exempt interest on
newly issued private activity bonds (but not qualified 501(cX3)
bonds), and untaxed appreciation on charitable contributions of ap-
preciated property, also are preference items.
For 1987 through 1989, one;half of the excess of pre-tax book
income of the taxpayer (including members of a group filing a con-
solidated tax return for the year), over other alternative minimum
taxable income, is a preference. After 1989, pre-tax book income is
replaced for this purpose by adjusted current earnings.
These provisions apply generally to taxable years beginning after
December 31, 1986. The treatment of interest on private activity
bonds as a preference item applies to bonds issued after August 7,
1986, except that in the case of certain bonds treated as govern-
mental under prior law, such treatment applies to bonds issued on
or after September 1, 1986.
Manufacturer's excise tax
Present law imposes selective excise taxes on the sale by the
manufacturer of tires, petroleum products, coal, and certain recre-
ational equipment.
House Bill
No provision.
1 See H. Rep 99-841, September 18, 1986.
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Senate Amendment
Imposition of tax
The Senate amendment imposes an excise tax on the sale, lease,
or transfer of tangible personal property by the manufacturer of
the property, in connection with a trade or business (Superfund
Excise Tax). Revenues equivalent to the tax are to be deposited in
the Superfund.
The tax is equal to 0.08 percent of the sales price of, or gross
lease payments for, the property (i.e., $8 of tax per $10,000 of tax-
able amount). Tax is also imposed (at the same 0.08-percent rate)
on importers of tangible personal property based on the customs
value plus duties (or, if no customs value is available, the fair
market value) of the imported property.
For purposes of the tax, "manufacturing" includes mining, raw
material production, and the production of tangible personal prop-
erty. Manufacturing does not include services incidental to storage
or transportation of property; preparation of food in a restaurant
or other retail establishment; or incidental preparation of property
by a wholesaler or retailer. "Tangible personal property" includes
natural gas and other gaseous products and materials. Tangible
personal property does not include electricity, unprocessed agricul-
tural products, or unprocessed food products.
The tax is deductible from Federal income taxes.
Credit against tax
A credit equal to 0.08 percent of the taxpayer's qualified invento-
ry costs is allowed against the tax.
"Qualified inventory costs" are amounts paid or incurred for pur-
chases of tangible personal property and which are allocable to the
inventory of a manufacturer using the full absorption accounting
method (unless otherwise provided in regulations). Property manu-
factured for lease is treated in the same manner as property manu-
factured for sale.
In lieu of any allowance for depreciation or amortization, quali-
fied inventory costs include amounts paid or incurred for deprecia-
ble or amortizable property (i.e., expensing treatment).
A taxpayer who includes the cost of tangible personal property
in qualified inventory costs is treated as the manufacturer of the
property if the property is subsequently sold or leased.
Credits may be carried forward to later taxable years, but may
not be refunded.
Exemptions
Small manufacturers.—A manufacturer with $5 million or less of
annual taxable receipts is effectively exempt from the tax, by
means of a minimum $4,000 allowable credit. This minimum credit
is not available to importers, is not refundable, and may not be car-
ried over.
Small imports, exports, and tax-exempt entities.—Additional ex-
emptions from the tax are provided for the following: (1) import
shipments with an aggregate value of $10,000 or less; (2) exports
from the United States, and (3) items sold or leased (but not im-
ported) by governmental units or organizations exempt from tax-
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ation under section 501(a) (other than in unrelated trades or busi-
nesses).
Termination date
The tax terminates after December 31, 1990. The tax would be
suspended or terminated earlier under similar conditions as the pe-
troleum and feedstock chemical taxes (see A.2 and A.3., above).
Effective date
The tax is effective on January 1, 1986.
Conference Agreement
The conference agreement provides a new environmental tax
generally based on corporate alternative minimum taxable income
("AMTI"). AMTI is defined in the same manner as in the Tax
Reform Act of 1986 (H.R. 3838), which the conferees expect will be
signed into law before the effective date of this provision.
The amount of tax is equal to 0.12 percent ($12 of tax per $10,000
of AMTI) of the excess of AMTI, without regard to net operating
losses and the deduction for this tax, over $2 million. The $2 mil-
lion exemption is aggregated for taxpayers that are component
members of a controlled group of corporations (as defined in sec.
1563). The environmental tax is imposed whether or not the tax-
payer is subject to the alternative minimum tax. The environmen-
tal tax is deductible from gross income. No credits are allowable
against the environmental tax. In addition, the rules for estimated
tax, penalties, and refunds that apply to the corporate income tax
also apply to the environmental tax.
The environmental tax is effective for taxable years beginning
after December 31, 1986. The environmental tax is not imposed if
any taxable year beginning during a calendar year in which the pe-
troleum and chemical feedstocks taxes are not imposed. Thus, the
environmental tax is not imposed in taxable years beginning after
December 31, 1991, and will be terminated (or suspended) sooner if
the petroleum and chemical feedstocks taxes are terminated (or
suspended) before this date. The effective date and termination pro-
visions are designed to impose the environmental tax for the same
number of taxable years, regardless of when a corporation's tax-
able year begins. Rules for the imposition of the environmental tax
for taxable years of less than 12 months shall be prescribed by the
Secretary.
7. LEAKING UNDERGROUND STORAGE TANK TRUST FUND AND TAX
Present Law
Petroleum releases and releases of natural or synthetic gases are
not covered by the Superfund. (Some petroleum releases are specifi-
cally covered by other environmental laws.)
Excise taxes are imposed on gasoline and special motor fuels (9
cents per gallon), diesel fuel (15 cents per gallon), aviation gasoline
(12 cents per gallon), aviation jet fuel (14 cents per gallon), and fuel
used on inland waterways (10 cents per gallon). Revenues from
these fuel taxes are dedicated to specific trust funds.
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House Bill
Establishment of trust fund
A separate Leaking Underground Storage Tank Trust Fund is es-
tablished, to be available for cleanup and related costs associated
with leaking underground storage tanks containing petroleum
products.
This Trust Fund generally is intended to be used to pay cleanup
and releated costs involving tanks where no solvent owner can be
found, or when the owner or operator refuses or is unable to
comply with an urgent corrective order. This Trust Fund would
also be available to provide grants to States carrying out these pur-
poses.
Financing of trust fund
The Leaking Underground Storage Tank Trust Fund is to be
funded by:
(1) An additional 0.2-cent per gallon tax on gasoline, diesel fuel,
and special motor fuels sold by a producer or importer; liquid fuels
(other than gasoline) used in motor vehicles, motor boats, and
trains; liquid aviation fuels; and fuels used in commercial transpor-
tation on inland waterways. These additional taxes generally use
the tax base and collection procedures of the present-law excise
taxes on these fuels (Code sees. 4041, 4042, and 4081).
(2) Interest on balances in this Trust Fund.
(3) Recoveries from responsible parties under section 9003(h) of
the Solid Waste Disposal Act.
Termination of tax
The additional taxes expire on September 30, 1990. However, no
further taxes are to be imposed if, before September 30, 1990, cu-
mulative revenues from these taxes exceed $850 million.
Effective date
These provisions are effective on November 1, 1985.
Senate Amendment
No provision.
Conference Agreement
The conference agreement follows the House bill ^ establishing
a Leaking Underground Storage Tank Trust Fund. The conference
agreement also follows the House bill as to the financing of the
Trust Fund, except that the tax is imposed at the rate of 0.1 cent
per gallon. This tax is not imposed on liquified petroleum gas. A
reduced rate of 0.05 cent per gallon is imposed on methanol.
This provision is effective on January 1, 1987. It expires on De-
cember 31, 1991. If, prior to the date, the net revenues from the
taxes impose to fund the Leaking Underground Storage Tank Trust
Fund exceed $500 million, than those taxes will expire on the last
day of the month in which that occurs.
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B. POST-CLOSURE LIABILITY TRUST FUND AND TAX
Present Law
A separate trust fund, the Post-Closure Liability Trust Fund, is
to assume completely the liability of owners and operators of haz-
ardous waste disposal facilities that have been granted permits and
have been properly closed under Subtitle C of the Resource Conser-
vation and Recovery Act. (RCRA). The Trust Fund also may be
used to pay certain monitoring and maintenance costs.
Revenues from an excise tax on hazarsous waste were deposited
in the Trust Fund. The tax of $2.13 per dry weight ton expired on
September 30, 1985.
House Bill
The House bill repeals the Post-Closure Liability Trust Fund and
tax, effective October 1, 1983 (the original effective date of the tax).
To effect this retroactive repeal, taxpayers who paid this tax may
file claims for refunds of the tax, plus interest.
Senate Amendment
The Senate amendment repeals the Post Closure Liability Trust
Fund and tax effective October 1, 1985, and transfers the unobligat-
ed balance in this Trust Fund to the Superfund. Amounts in the
Trust Fund are to be refunded (proportionately to taxes paid, but
without interest) effective March 1, 1989, unless by that date the
Congress authorizes a transfer or assumption of post-closure liabil-
ity in response to a study required to be made by EPA.
Conference Agreement
The conference agreement follows the House bill. The statute of
limitations is extended so that taxpayers who paid this tax may file
claims for refunds.
C. OIL SPILL LIABILITY TRUST FUND AND TAX
1. OIL SPILL LIABILITY TRUST FUND
Present Law
Funds relating to oil spill damages and cleanups have been cre-
ated under various Federal statutes, including:
(1) section 311(k) of the Federal Water Pollution Control Act
(Clean Water Act) ($35 million revolving fund for oil spill
cleanups, supported by fines, penalties, and general revenue
appropriations);
(2) the Trans-Alaska Pipeline Authorization Act ($100 mil-
lion fund, financed primarily by a 5-cents-per-barrel fee on oil
passing through the pipeline);
(3) the Deepwater Port Act of 1974 ("Deepwater Port Liabil-
ity Fund") ($100 million fund, financed by a 2-cents-per-barrel
fee on oil loaded at a deepwater port); and
(4) the Outer Continental Shelf Act Amendments of 1978
("Offshore Oil Pollution Compensation Fund") ($200 million
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fund with respect to offshore oil spills, financed by a maximum
3-cents-per-barrel fee on owners of offshore oil).
There is no general oil spill liability and compensation trust
fund.
House Bill 8
In general
An Oil Spill Liability Trust Fund is established in the Treasury,
to be funded in part by a 1.3-cents-per-barrel excise tax on domestic
crude oil and imported petroleum products.
Amounts in the Oil Spill Fund are available for removal costs,
certain damages sustained by U.S. claimants, and certain related
costs associated with oil spills. Claimants generally would have the
option of proceeding against the responsible party or recovering
against the Fund, which could then proceed against the responsible
party. The legislation would constitute an exclusive remedy for
claims covered by the Fund.
Liability of responsible parties is to be on a strict, joint, and sev-
eral basis, with liability limits consistent with international agree-
ments.
Excess amounts remaining in the fund created by section 311(k)
of the Federal Water Pollution Control Act are transferred to the
general fund of the Treasury.
Uses of fund
Amounts in the Oil Spill Fund are available only for the follow-
ing purposes:
fl) Payment of costs incurred in cleaning up or preventing oil
pollution from vessels or offshore facilities ("removal costs"), under
the Federal Water Pollution Control Act, the Deepwater Port Act,
and the Intervention on the High Seas Act.
(2) Claims for injury to, or destruction of, real or personal proper-
ty.
(3) Claims for loss of subsistence use of natural resources.
(4) Payment of otherwise uncompensated economic loss sustained
by any U.S. claimant as a result of oil spills from vessels or off-
shore facilities. Compensable damages would include lost earnings
and profits if: (a) the loss is 25 percent or more of the claimant's
earnings; or (b) in the case of seasonal activities, 25 percent of sea-
sonal earnings are derived from affected activities.
(5) Payment of contributions to the International Fund for Com-
pensation for Oil Pollution Damage, if the conventions establishing
this fund come into force with respect to the United States. Under
regulations, contributions to the International Fund would be al-
lowed only in proportion to the portion of such Fund used for pur-
poses that are consistent with the uses of the domestic Oil Spill
Fund.
" Similar provisions are included in H R. 5300, the Omnibus Budget Reconciliation Act of
1986, as reported by the House Committee on the Budget on July 31, 1985 (H Rep 99-727), arid
as passed by the House on September 24, 1986
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(6) Administrative costs, but only to the extent necessary for an
incidental to the implementation of the Comprehensive Oil Pollu-
tion Liability and Compensation Act.
Payments to any governmental unit, under any item above, are
permitted only for removal costs and administrative expense relat-
ed to removal costs.
The liability of the Oil Spill Fund could not exceed $200 million
for any single incident. Additionally, no payment could be made
(except for removal costs) to the extent that the payment would
reduce the Fund balance below $30 million.
Claims against the Fund could be paid out of the Oil Spill Fund
only. If the Fund is insufficient to pay all claims, claims are to be
paid in full in the order in which finally determined.
Revenue sources
Under the House bill, the following amounts are to be deposited
in the Oil Spill Fund:
(1) Amounts equivalent to a 1.3-cent-per-barrel excise tax on do-
mestic crude oil and imported petroleum products, using the tax
base for the Superfund petroleum tax (see C.2., above).
(2) Amounts recovered, collected, or received from responsible
parties under the Comprehensive Oil Pollution Liability and Com-
pensation Act. (Penalties with respect to payment of taxes would
not be deposited in the Oil Spill Fund.)
(3) Amounts remaining in the Deepwater Port Liability Fund and
the Offshore Oil Pollution Compensation Fund, as of the date of en-
actment.
(4) Interest earned on Oil Spill Fund investments.
(5) The proceeds of authorized borrowing by the Oil Spill Fund,
not to exceed $300 million in outstanding indebtedness at any time.
(6) Penalties and recoveries under the Federal Water Pollution
Control Act.
Administrative provisions
The Oil Spill Liability Trust Fund is established as a trust fund
in the Internal Revenue Code.
The Trust Fund is authorized to borrow, as repayable advances,
up to $300 million at any one time to carry out the purposes of the
Fund.
Effective date
The Oil Spill Fund trust fund provisions are effective on January
1, 1986.
Senate Amendment
No provision.
Conference Agreement
The conference agreement does not include the provision of the
House bill.
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340
2. OIL SPILL TAX
Present Law
No provision. (A tax on petroleum was imposed for deposit in the
Superfund; see A.2., above.)
House Bill9
Imposition of tax
An excise tax of 1.3 cents per barrel is imposed on domestic
crude oil and imported petroleum products, in addition to the 11.9-
cents-per-barrel tax imposed on this base for the Superfund (see
A.2., above). This tax uses the same tax base, and is subject to the
same administrative provisions, as the Superfund petroleum tax.
A non-transferable credit against the oil spill tax is allowed (to
the extent of prior contributions) for persons who contributed to
the Deepwater Port Liability Fund or the Offshore Oil Pollution
Compensation Fund. (The balance in these funds is to be trans-
ferred to the Oil Spill Fund.)
Termination of tax
This tax terminates after September 30, 1990.
Effective date
The tax is effective after December 31, 1985.
Senate Amendment
No provision. (The Senate amendment continues the prior-law
Superfund petroleum tax.)
Conference Agreement
The conference agreement does not include the provision of the
House bill.
D. TAX-EXEMPT BONDS FOR HAZARDOUS WASTE TREATMENT
FACILITIES
Present Law
Tax-exempt industrial development bonds ("IDBs") may foe
issued to finance solid waste disposal facilities (sec. 103(bX4XE)). Fa-
cilities for the disposal of liquid or gaseous waste (including liquid
and gaseous hazardous wastes) do not qualify for this financing.
Under the conference agreement on the Tax Reform Act of 1986
(H.R. 3838),10 as passed by the House on September 25, 1986, and
the Senate on September 27, 1986, tax-exempt private activity
bonds may be issued to finance qualified hazardous waste facilities.
These include facilities for the land incineration or the permanent
entombment of hazardous waste, which facilities are subject to
9 Similar provisions are included in H.R. 5300, the Omnibus Budget Reconciliation Act of
1986, as reported by the House Committee on the Budget, July 31, 1986, and as passed by the
House on September 24, 1986.
10 See H. Rep. 99-841, September 18, 1986.
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341
final permit requirements under subtitle C of Title II of the Solid
Waste Disposal Act, as in effect on the date of enactment of the
conference agreement. Tax-exempt financing is available under
this provision only for facilities (or the portion of a facility) to be
used by the general public, and is subject to certain limitations, in-
cluding the volume and other limitations applicable to private ac-
tivity bonds generally.
House Bill
No provision.
Senate Amendment
The Senate amendment allows tax-exempt IDBs to be issued to
finance facilities for the treatment of hazardous waste, as these
terms are defined under sec. 1004 of the Solid Waste Disposal Act
(i.e., RCRA). This exemption is limited to facilities which are sub-
ject to final permit requirements under RCRA. Bonds issued under
this provision would be subject to the volume and other restrictions
applicable to solid waste IDBs under present law.
This provision is effective for bonds issued 'after the date of en-
actment.
Conference Agreement
The conference agreement does not include the provision of the
Senate amendment.
E. HAZARDOUS WASTE REMOVAL COSTS TREATED AS QUALIFYING
DISTRIBUTIONS BY PRIVATE FOUNDATIONS
Present Law
To avoid penalty excise taxes, a private foundation must annual-
ly make expenditures or grants for charitable purposes in an
amount (the "distributable amount") equal to 5 percent of the fair
market value of its investments (Code sec. 4942).
House Bill
No provision.
Senate Amendment
Subject to certain limitations, the distributable amount of a pri-
vate foundation (under sec. 4942) is to be reduced by amounts paid
or incurred or set aside by the foundation for removal or remedial
action with respect to a hazardous substance release at a facility
that was owned or operated by the foundation.
This provision is effective for taxable years beginning after De-
cember 31, 1982.
Conference Agreement
The conference agreement does not include the provision of the
Senate amendment.
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342
F. STUDIES
1. ALTERNATIVE FINANCING MECHANISMS
Present Law
Pursuant to the Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 ("CERCLA"), EPA prepared
the following study: "The Feasibility and Desirability of Alterna-
tive Tax Systems for Superfund: CERCLA section 301(aXlXG)
Study," United States Environmental Protection Agency (Decem-
ber 1984).
House Bill
No provision.
Senate Amendment
The General Accounting Office (GAO) is directed to report by
January 1, 1988, its findings on various mechanisms for financing
the Superfund, including a study on the effect of a tax on hazard-
ous waste on the generation and disposal of such waste.
Conference Agreement
The conference agreement does not include the provision in the
House bill.
2. EFFECT OF WASTE MANAGEMENT TAX
Present Law
No provision.
House Bill
The Secretary of the Treasury is directed to study the effects of
the waste management tax on the ability of domestic manufactur-
ers to compete in international trade, and to report to Congress by
July 1, 1986.
Senate Bill
No provision.
Conference Agreement
The conference agreement does not include the provision in the
House bill
3. STUDY OF LEAD POISONING
Present Law
No provision.
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343
House Bill
The House bill directs the Administrator of the Agency for Toxic
Substances and Disease Registry to study the nature and extent of
lead poisoning in children from environmental sources, and to
report to Congress by March 1, 1986. The cost of this study is au-
thorized to be paid out of the Superfund.
Senate Amendment
No provision.
Conference Agreement
The conference agreement does not include the provision in the
House bill.
G. APPENDICES
APPENDIX A.—EXCISE TAX RATES ON FEEDSTOCK CHEMICALS UNDER PRIOR LAW AND HOUSE BILL
Substance
Organic substances
Acetylene
Benzene2 . .
Butadiene
Butane
Butylene . .
Ethylene
Methane
Naphthalene '- .
Propylene
Toluene 2
Xylene "
Inorganic substances
Ammonia
Antimony
Antimony tnoxide
Arsenic
Arsenic trioxide
Barium sulfide
Bromine
Cadmium
Chlorine ...
Chromite
Chromium.
Cobalt . ....
Cupric oxide . ,
Cupnc sulfate
Cuprous oxide
Hydrochloric acid
Hydrogen fluoride . .
Lead
Lead oxide
Mercury
Nickel.
Nitric acid
Phosphorus
Potassium dichromate
Potassium hydroxide
Sodium dichromate . .
Sodium hydroxide . .
House toll proposed
Prior law rate fiscal year 1986
rate1
487
487
487
487
487
. . 487
344
487
487
487
487
264
... 445
375
445
341
230
4.45
445
270
152
445
4.45
359
1.87
3 97
.... .29
4.23
0
414
445
445
, . 24
4.45
1.69
22
1.87
28
625
625
625
554
625
625
344
625
625
625
3 11 19
420
625
625
6.25
625
625
625
625
403
152
6.25
625
625
625
625
124
6.25
625
625
625
625
3.90
6.25
625
625
625
372
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APPENDIX A.-EXCISE TAX RATES ON FEEDSTOCK CHEMICALS UNDER PRIOR LAW AND HOUSE
BILL—Continued
Substance
Stannic chloride
Stannous chloride
Sulfuric acid .
Zinc chloride
Zinc sulfate
House Ml proposed
Prior law rate fiscal year 1986
rate1
212
285
26
222
1.90
6.25
6.25
1.03
625
625
1 Proposed rates would be indexed for inflation, beginning in 1987, but would not be reduced below the rates stated in the table
1 Coal-derived benzene, naphthalene, toluene, and xylene are exempt under current law These substances would be taxed at the indicated rates
under trie bill
* Tax rate on xylene reflects increase to compensate lor repeal of tax prior to 1986
APPENDIX B: INITIAL LIST OF TAXABLE SUBSTANCES FOR PURPOSES OF
IMPORTED DERIVATIVES TAX UNDER HOUSE BILL
Cumene; Styrene; Ammonium nitrate; Nickel oxide; Isopropyl al-
cohol; Ethylene glycol; Vinyl chloride; Polyethylene resins, total;
Polybutadiene; Styrene-butadiene, latex; Styrene-butadiene, snpf;
Synthetic rubber, not containing fillers; Urea; Ferronickel; Fer-
rochromium nov 3 pet; Ferrochrome ov 3 pet carbon; Unwrought
nickel; and Nickel waste and scrap.
Wrought nickel rods and wire; Nickel powders; Phenolic resins;
Polyvinylchloride resins; Polystyrene resins and copolymers; Ethyl
alcohol for nonbeverage use; Methylene chloride; Polypropylene;
Propylene glycol; Formaldehyde; Acetone; Propylene oxide; Poly-
propylene resins; Ethylene oxide; Ethylene dichloride; Cyclohexane;
Isophthalic acid; and Maleic anhydride.
Phthalic anhydride; Ethyl methyl ketone; Chloroform; Carbon
tetrachloride; Chromic acid; Hydrogen peroxide; Polystyrene homo-
polymer resins; Melamine; Acrylic and methacrylc acid resins;
Vinyl resins; and Vinyl resins, NSPF.
ESTIMATED REVENUE EFFECTS OF H.R. 2005, AS APPROVED BY THE CONFERENCE COMMITTEE,
FISCAL YEARS 1987-92
[In millions of dollars]
Tax provision 1987 1988 1989 1990 1991 1992 Total
Superfund taxes.
Petroleum tax . . 379 547 551 554 557 171 2,759
Chemical feedstocKs tax 91 280 291 299 309 95 1,365
Environmental tax 218 418 487 528 573 298 2,522
Tax on imported chemical derivatives 13 19 19 6 57
Total, Superfund tax receipts 688 1,245 1,342 1,400 1,458 570 6,703
Leaking underground storage tank trust fund tax on gasoline, other motor
fuels (0.1 cents per gal.) , . 89 130 132 131 18 500
Total, tax revenues to trust funds 777 1,375 1,474 1,531 1,476 570 7,203
Net increase in budget receipts (after income tax offsets) 583 1,031 1,106 1,148 1,107 428 5,403
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345
From the Committee on Energy and Commerce for consideration
of titles I-III of the House amendment to the Senate amendment,
and the entire Senate amendment, except for title II:
JOHN D. DINGELL.
JAMES J. FLORIO.
DENNIS E. ECKART.
RALPH M. HALL.
BILLY TAUZIN.
AL SWIFT.
From the Committee on Energy and Commerce:
Solely for sections 102, 103, 105, 111, 113, 115, 117, 120, 121, 122,
123, 124, and 127 of title I and title III of the House amendment to
the Senate amendment, and modifications committed to conference
including section 157 of the Senate amendment:
RON WYDEN.
Solely for sections 101, 104, 106, 107, 108, 109, 110, 112, 114, 116,
118, 119, 125, and 126 of title I and title II of the House amendment
to the Senate amendment, and modifications committed to confer-
ence:
THOMAS J. TAUKE.
NORMAN F. LENT.
DON RITTER.
From the Committee on Energy and Commerce solely for sec-
tions 101, 104, 106, 107, 108, 109, 110, 112, 114, 116, 118, 119, 125,
and 126 of title I and title II of the House amendment to the
Senate amendment, and modifications committed to conference:
JACK FIELDS.
From the Committee on Public Works and Transportation for
consideration of titles I, II (except for section 205) and IV of the
House amendment to the Senate amendment, and title I of the
Senate amendment, except for sections 110, 111, 127, 157, and 160
thereof:
JAMES J. HOWARD.
GLENN M. ANDERSON.
ROBERT A. ROE.
JOHN BREAUX.
NORMAN MINETA.
BOB EDGAR.
GENE SNYDER.
From the Committee on Public Works and Transportation for
consideration of titles I, II (except for section 205) and IV of the
House amendment to the Senate amendment, and title I of the
Senate amendment, except for sections 110, 111, 127, 157, and 160
thereof:
ARLAN STANGELAND.
NEWT GINGRICH.
From the Committee on Public Works and Transportation for
consideration of title III of the House amendment to the Senate
amendment, and sections 110, 111, 127, and 160 of title I of the
Senate amendment:
ROBERT A. ROE.
BOB EDGAR.
ARLAN STANGELAND.
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346
From the Committee on Ways and Means for consideration of
title V of the House amendment to the Senate amendment, and
title II of the Senate amendment:
DAN ROSTENKOWSKI.
J.J. PICKLE.
C.B. RANGEL.
PETE STARK.
THOMAS J. DOWNEY.
MARTY Russo.
DONALD J. PEASE.
From the Committee on Ways and Means for consideration of
title V of the House amendment to the Senate amendment, and
title II of the Senate amendment:
GUY VANDER JAGT.
BILL FRENZEL.
From the Committee on Merchant Marine and Fisheries for con-
sideration of sections 104, 107, 108, 111, 113, 116, 121, 122, and 127
of title I of the House amendment to the Senate amendment, and
modifications committed to conference:
WALTER B. JONES.
MARIO BIAGGI.
GERRY E. STUDDS.
BOB DAVIS.
From the Committee on Merchant Marine and Fisheries for con-
sideration of title IV of the House amendment to the Senate
amendment, and modifications committed to conference:
WALTER B. JONES.
MARIO BIAGGI.
GERRY E. STUDDS.
BARBARA A. MIKULSKI.
MIKE LOWRY.
BILLY TAUZIN.
From the Committee on Merchant Marine and Fisheries for con-
sideration of title IV of the House amendment to the Senate
amendment, and modifications committed to conference:
BOB DAVIS.
NORMAN F. LENT.
From the Committee on the Judiciary for consideration of sec-
tions 107, 113, 117, 119, and 122 of title I and sections 203 and 206
of title II of the House amendment to the Senate amendment, and
modifications committed to conference:
PETER W. RODINO.
DAN GLICKMAN.
HAMILTON FISH, Jr.
THOMAS N. KINDNESS.
From the Committee on Armed Services for consideration of sec-
tion 213 of title II of the House amendment to the Senate amend-
ment, and section 162 of title I of the Senate amendment:
DAVE McCuRDY,
DAVID O'B. MARTIN,
Managers on the Part of the House.
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347
From the Committee on Environment and Public Works for the
purpose of considering all matter other than that contained in title
II of the Senate amendments, and section 463 of title IV and title V
of the House amendments:
ROBERT T. STAFFORD.
JOHN H. CHAFEE.
ALAN K. SIMPSON.
GORDON J. HUMPHREY.
PETE V. DOMENICI.
DAVID DURENBERGER.
LLOYD BENTSEN.
From the Committee on Environment and Public Works for the
purpose of considering all matter other than that contained in title
II of the Senate amendments, and section 463 of title IV and title V
of the House amendments:
DANIEL PATRICK MOYNIHAN.
GEORGE MITCHELL.
MAX BAUCUS.
FRANK R. LAUTENBERG.
From the Committee on Finance for the purpose of considering
section 463 of title IV and title V of the House amendments, and
title II of the Senate amendments:
BOB PACKWOOD.
BOB DOLE.
WILLIAM V. ROTH, Jr.
RUSSELL B. LONG.
LLOYD BENTSEN.
From the Committee on the Judiciary for the purpose of joining
in the consideration of sections 135, 143, 144, and to the extent it
may affect the Federal courts or relate to claims against the
United States, section 150, together with such amendments related
directly thereto as may have been adopted by the House:
STROM THURMOND,
ARLEN SPECTER,
EDWARD M. KENNEDY,
Managers on the Part of the Senate.
O
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