UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
a.
OFFCEOF
THE ADMINISTRATOR
February 2, 1994
The Honorable Albert Gore, Jr.
President
United States Senate
Washington, D.C. 20510
Dear Mr. President:
I am pleased to transmit to you the Clinton Administration's proposed "Superfund
Reform Act of 1994."
This reform initiative fulfills the Clinton Administration's commitment to
protecting human health and the environment and to making Superfund cleanups faster,
fairer and more efficient. It will change the way we do business in the Superfund
program and sets a standard for environmental legislation.
The legislation which would amend the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), was developed through a lengthy
process that capitalized on the expertise of the many Superfund stakeholders - both
inside and outside of government.
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EPA staff have worked for the past two years developing ideas and proposals for
Superfund reform. These proposals were reviewed by an interagency policy committee
comprised of senior officials from interested agencies that examined the program and
made recommendations for change.
I convened a subcommittee of the National Advisory Council on Environmental
_^ Policy and Technology (NACEPT) to identify administrative and legislative
go improvements in the Superfund program. The NACEPT subcommittee was comprised of
v~- representatives from environmental groups, small and large businesses, municipalities,
c° states, the environmental justice community, and the hazardous waste cleanup industry.
EPA Ilecc"--- ---_ T--U @ Printed on Recycled Paper
-----. 0^3 Library ^^
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Title DC, "Tax, "amends provisions of the Internal Revenue Code.
Although provisions concerning improvement to the natural resource damage
assessment process are not included in this bill, the Administration is committed to such
improvements. The Administration is in the process of evaluating and developing
recommendations on these issues and will be providing them at the appropriate time. In
addition, the Administration is still in the process of working with insurers and insureds
to develop legislative provisions for the tax portions of the Environmental Insurance
Resolution Fund. We are transmitting with the bill legislative specifications for these
provisions and will be providing the legislative language to the Congress in the near
future.
We recommend that this proposal be referred to the appropriate Committees and
be passed into law.
The Omnibus Budget Reconciliation Act (OBRA), as amended, requires that all
revenue and direct spending legislation meet a pay-as-you-go requirement through fiscal
year 1998. That is, no such bill should result in an increase in the deficit; and if it does,
it will trigger a sequester if it is not fully offset. The effect of the Superfund Reform Act
of 1994 would be to decrease the deficit for fiscal years 1995 - 1999. Considered alone,
the bill meets the pay-as-you-go requirement of OBRA.
The Office of Management and Budget advises that enactment of this legislative
proposal would be in accordance with the program of the President.
Sincerely,
Carol M. Browner
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103D CONGRESS
1ST SESSION
S.
To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
and for other purposes.
LN THE SENATE OF THE UNITED STATES
FEBRUARY , 1994
Mr. introduced the following bill; which was referred to the
Committee .
A BILL
To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
and for other purposes.
1 Be it enacted by the Senate and House of Representatives of the United States of America
2 in Congress assembled,
3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS
4 (a) SHORT TITLE.-This Act may be cited as the "Superfund Reform Act of 1994".
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(b) TABLE OF CONTENTS. --
Sec. 1. Short title; table of contents.
TITLE I--COMMUNTTY PARTICIPATION AND HUMAN HEALTH
Sec. 101 . Purposes and objectives.
Sec. 102. Early, direct and meaningful community participation.
Sec. 103. Community working groups.
Sec. 104. Citizen information and access offices.
Sec. 105. Response to comments.
Sec. 106. Multiple sources of risk demonstration projects.
Sec. 107. Assessing risks from multiple sources.
Sec. 108. Multiple sources of risk in priority setting*.
Sec. 109. Disease registry and medical care providers.
Sec. 1 10. Substance profiles.
Sec. 111. Determining health effects.
Sec. 112. Public health and related health activities at National Priorities List sites.
Sec. 113. Health studies.
Sec. 1 14. Distribution of materials to health professionals and medical centers.
Sec. 115. Grant awards/contracts/community assistance activities.
Sec. 116. Public health recommendations in remedial actions.
Sec. 117. Agency for Toxic Substances and Disease Registry notification.
II--STATE ROLES
Sec. 201. State authority.
Sec. 202. Transfer of authorities.
Sec. 203. State role in determination of remedial action taken.
Sec. 204. State assurances.
Sec. 205. Siting.
Sec. 206. The National Priorities List.
Sec. 207. The State Registry. . -
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TITLE m«VOLUNTARY RESPONSE
Sec. 301. Purposes and objectives.
Sec. 302. State voluntary response program.
Sec. 303. Site characterization program.
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TITLE IV--UABILITY AND ALLOCATION
Sec. 401. Response authorities.
Sec. 402. Compliance with administrative orders.
Sec. 403. Limitations to liability for response costs.
Sec. 404. liability.
Sec. 405. Civil proceedings.
Sec. 406. Limitations on contribution actions.
Sec. 407. Scope of mlemaking authority.
Sec. 408. Enhancement of settlement authorities.
Sec. 409. Allocation procedures.
TITLE V--REMEDY SELECTION
Sec. 501. Purposes and objectives.
Sec. 502. Cleanup standards and levels.
Sec. 503. Remedy selection.
Sec. 504. Miscellaneous amendments to section 121.
Sec. 505. Response authorities.
Sec. 506. Removal actions.
Sec. 507. Transition.
TITLE VI--MISCELLANEOUS
Sec. 601. Interagency agreements at mixed ownership and mixed responsibility facilities.
Sec. 602. Transfers of uncontaminated property.
Sec. 603. Agreements to transfer by deed.
Sec. 604, Alternative or innovative treatment technologies.
Sec. 60S. Definitions
Sec. 606. Conforming amendment.
TITLE VH--FUNDING
Sec. 701. Authorizations of appropriations.
Sec. 702. Orphan share funding. /> ~
Sec. 703. Agency for Toxic Substances and Disease Registry.
Sec. 704. Limitations on research, development and demonstration programs.
Sec. 705. Authorization of appropriations from general revenues.
Sec. 706. Additional limitations.
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TITLE Vm-INSURANCE
Sec. 801. Short tide.
Sec. 802. Environmental Insurance Resolution Fund.
Sec. 803. Financial statements, audits, investigations, and inspections.
Sec. 804. Stay of pending litigation.
Sec. 805. Sunset provisions.
Sec. 806. Sovereign immunity of the United States.
Sec. 807. Effective date.
TITLE DC-TAX
Sec. 901. Amendments to the Internal Revenue Code of 1986.
Sec. 902. Environmental fees and assessments on insurance companies.
Sec. 903. Funding provisions for Environmental Insurance Resolution Fund.
Sec. 904. Resolution Fund not subject to tax.
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2 TITLE I - COMMUNITY PARTICIPATION AND HUMAN HEALTH
3 '
4 SEC. 101. PURPOSES AND OBJECTIVES.
5 The purposes and objectives of the community participation activities required by this
6 title are to -
7 (a) inform citizens and elected officials at all levels of government of the
8 existence and status of facilities listed on the National Priority List and contaminated
9 sites identified on State Registries (as established by section 207 of this Act);
10 (b) provide citizens with information regarding the Superfund identification
11 and cleanup process and maintain lists of technical, health and other relevant experts
12 licensed or located in the state who are available to assist the community;
13 (c) ensure wide dissemination of and access to information in a manner that is
14 easily understood by the community, considering any unique cultural needs of the
IS community, including presentation of information orally and distribution of
16 information in languages other than English; and
H (d) ensure that the President is aware of and considers the views of affected
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18 communities. *" -
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1 SEC. 102. EARLY, DIRECT AND MEANINGFUL COMMUNITY
2 PARTICIPATION.
3 (a) Section 117(e)(l) of the Comprehensive Environmental Response, Compensation,
4 and Liability Act of 1980, referred to in this Act as "the Act" (42 U.S.C. 9617) is amended
5 by amending the first sentence to lead as follows -
6 "(1) AUTHORITY. -- Subject to such amounts as are provided in
7 appropriations Acts and in accordance with rules promulgated by the President, the
8 President may make grants or services available to any group of individuals which
9 may be affected by a release or threatened release of a hazardous substance or
10 pollutant, or contaminant at or from a facility where there is significant response
11 action under this Act including, a site assessment, remedial investigation/feasibility
12 study, or other removal or remedial action.".
13 (b) Section 117(e) of the Act is amended by striking paragraph (2) and inserting in
14 the following
15 "(2) Amount.
16 "The amount of any grants or services may not exceed $50,000 for a
H7 single recipient of grants or services. The President may waive the $50,000
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i
18 limitation in any case where such waiver is necessary to cany out the purposes
19 of this subsection. Each recipient of grants 01 services shall be required, as a
20 condition of the grants or services, to contribute at least 20 percent of the total
21 costs of the technical assistance for which such grants and services are made.
22 The President may waive the 20 percent contribution requirement if the grants
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1 or services recipient demonstrates financial need, and such waiver is necessary
2 to facilitate public participation in the selection of remedial action at the
3 facility. Not more than one award or grants or services may be made with
4 respect to a single facility, but the grants or services may be renewed to
5 facilitate public participation at all stages of remedial action.
6 (c) Section 117 of the Act (42 U.S.C. 9617) is amended by adding after subsection
7 (e) the following new subsections --
8 "(0 EARLY, DIRECT AND MEANINGFUL COMMUNITY
9 INVOLVEMENT. - The President shall provide for early, direct and meaningful
10 community involvement in each significant phase of response activities taken under
11 this Act. The President shall provide the community with access to information
12 necessary to develop meaningful comments on critical decisions regarding facility
13 characterization, risks posed by the facility, and selection of removal and remedial
14 actions. The President shall consider the views, preferences and recommendations of
IS the affected community regarding all aspects of the response activities, including the
16 acceptability to the community of achieving background levels.
H "(g) INFORMATION TO BE DISSEMINATED. - In addition to other
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18 information the President considers appropriate, the President shall ensure that the
19 community is provided information on the following -
20 "(1) the availability of a Technical Assistance Grant (TAG) under
21 subsection (e), directions on completing the TAG application, and the details
22 of the application process;
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1 "(2) the possibility (where relevant) that members of a community may
2 » qualify to receive an alternative water supply or relocation assistance;
3 "(3) the Superfund process, and rights of private citizens and public
4 interest or community groups;
5 "(4) the potential for or existence of a Community Working Group
6 (CWG) established under subsection (i) (as added by the Superfund Reform
7 Act of 1994); and
8 "(5) an objective description of the facility's location and
9 characteristics, the contaminants present, the known exposure pathways, and
10 the steps being taken to assess the risk presented by the facility.
11 ft(h> PROCESS FOR INVOLVEMENT. -- As early as practicable after site
12 discovery, the President shall provide regular, direct, and meaningful community
13 involvement in all phases of the response activities at the facility, including --
14 "(1) SITE ASSESSMENT. -- Whenever practicable, during the site
IS assessment, the President shall solicit and evaluate the concerns and interests
16 of the community likely affected by the facility. The evaluation may consist of
F7 face-to face community surveys, a minimum of one public meeting, written
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18 responses to significant concerns, and other appropriate participatory activities.
19 "(2) REMEDIAL INVESTIGATION/FEASIBILrrY STUDY. -During
20 the remedial investigation and feasibility study, the President shall solicit the
21 views and preferences of the community on the remediation and disposition of
22 the hazardous substances, pollutants or contaminants at the site. The
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1 community's views and preferences shall be described in the remedial
2 investigation and feasibility study and considered in the development of
3 remedial alternatives for the facility.".
4
5 SEC. 103. COMMUNITY WORKING GROUPS.
6 Section 117 of the Act (42 U.S.C. 9617) is amended by adding after subsection (h)
7 (as added by this Act) the following new subsection-
8 "(i) COMMUNITY WORKING GROUPS. --
9 "(1) CREATION AND RESPONSIBILITIES. -- The President shall
10 provide the opportunity to establish a representative public forum, known as a
11 Community Working Group (CWG), to achieve direct, regular and meaningful
12 consultation with community members throughout all stages of a response
13 action. The President shall consult with the CWG at each significant phase of
14 the remedial process.
15 "(2) INFORMATION CLEARINGHOUSE. - The CWG shall serve
16 a* r facility information clearinghouse for the community. In addition to
17 maintaining records of facility status and lists of active citizen groups and
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18 available experts, the CWG shall also be a repository for health assessment
19 information and other related health data.
20 "(3) LAND USE RECOMMENDATIONS. - To establish land use
21 expectations more reliably, and obtain greater community support for remedial
22 decisions affecting future land use, the President shall consult with the CWG
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1 on a regular basis throughout the remedy selection process regarding
2 reasonably anticipated future use of land at the facility. The CWG may offer
3 recommendations to the President at any time during the response activities at
4 the facility on the reasonably anticipated future use of land at the faciity,
5 taking into account development possibilities and future waste management
6 needs. The President shall not be bound by any recommendation of the CWG.
7 However, when the CWG achieves substantial agreement on the reasonably
8 anticipated future use of the land at the facility, the President shall give
9 substantial weight to that recommendation. In cases where there is substantive
10 disagreement within the CWG over a recommendation regarding the
11 reasonably anticipated future use of land at the facility, the President shall seek
12 to reconcile the differences. In the event of continued substantive
13 disagreement, substantial weight shall be given to the views of the residents of
14 the affected community. Should the President make a determination that is
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15 inconsistent with a CWG recommendation on the reasonably anticipated future
16 use of land at the facility, the President shall issue a written reason for the
17 inconsistency.
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18 "(4) MEMBERS. -^ CWG membership shall not exceed twenty
19 persons. CWG members shall serve without pay. Nominations for CWG
20 membership shall be solicited and accepted by the President. Selection of
21 CWG members shall be made by the President. In selecting citizen
22 participants for the CWG, the President shall provide notice and an
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1 opportunity to participate in CWGs to persons who potentially are affected by
2 facility contamination in the community. Special efforts shall be made to
3 ensure that the composition of CWGs reflects a balanced representation of all
4 those interested in facility remediation. In general, it shall be appropriate for
5 the President to offer members of the following groups representation on a
6 CWG-
7 "(A) Residents and/or landowners who live on or have property
8 immediately adjacent to or near the facility, or who may be directly
9 affected by releases from the facility, with a minimum of one
10 representative of the recipient a grant for technical assistance, if any,
11 awarded under subsection (e);
12 "(B) Persons who, although not physically as close to the
13 facility as those in the group identified in subparagraph (A), may be
14 potentially affected by releases from the facility;
15 "(C) Members of the local medical community who have
16 resided in the community for at least five years;
L7 "(D) Representatives of Indian tribes;
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1 "(H) Persons at the facility during response actions;
2 "(I) Facility owners and the significant PRPs who, whenever
3 practicable, represent a balance of interests; and,
4 "(J) Members of the local business community.
5 "(5) OTHER COMMUNITY VIEWS.- The existence of a CWG
6 shall not affect or diminish any other obligation of the President to consider
7 the views of any person in selecting response actions under this Act.".
8 SEC. 104. CITIZEN INFORMATION AND ACCESS OFFICES.
9 Section 117 of the Act (42 U.S.C. 9617) is amended by adding after subsection (i) (as
10 added by this Act) the following new subsection --
11 "0) CITIZEN INFORMATION AND ACCESS OFFICES. --
12 "(1) CREATION AND RESPONSIBILITIES. - The Administrator shall
13 ensure that an independent Citizen Information and Access Office (CIAO) is
14 established in each state and on each tribal land affected by a National Priorities List
15 facility.
16 "(2) PRIMARY FUNCTIONS. -- The primary functions of each CIAO shall
J7 be to -
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18 "(A) Inform citizens and elected officials at all levels of government of
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19 the existence and status of National Priorities List facilities in the state;
20 "(B) Provide citizens with information about each phase of the
21 Superfund process, including the site identification, assessment and cleanup
22 phases;
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1 "(C) Ensure wide distribution of information that is easily understood
2 by citizens;
3 "(D) Serve as a state-wide, or tribal land-wide clearinghouse of
4 information; and
5 "(E) Assist in the Administrator's efforts to notify, nominate, and
6 select potential Community Working Group members.".
7
8 SEC. 105. RESPONSE TO COMMENTS.
9 Section 117(a) (42 U.S.C. 9617(a)) of the Act is amended by striking "both of from
10 the phrase immediately preceding paragraph (1) and by inserting after paragraph (2) the
11 following new paragraph --
12 "(3) Consider the recommendations of any Community Working Group,
13 community members and Technical Assistance Grant recipients established for the
14 facility pursuant to this section. Provide, in writing a response to each significant
15 comment received during the public comment period. The written response shall
16 include an explanation of how the lead agency has used or rejected significant
17 comments of the Community Working Group in its final decision.".
18 /^
jM """
19 SEC. 106. MULTIPLE SOURCES OF RISK DEMONSTRATION PROJECTS. -
20 Section 117 of the Act (42 U.S.C. 9617) is amended by adding after subsection (j) (as
21 added by this Act) the following new subsection -
22 "(k) MULTIPLE SOURCES OF RISK DEMONSTRATION PROJECTS. -
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1 "(1) IN GENERAL -- The Administrator shall select at least 10 demonstration
2 projects to be implemented over a five year period, relating to the identification,
3 assessment, management of, and response to, multiple sources of risk in and around
4 designated facilities. These demonstration projects will examine various approaches
5 to protect communities exposed to such multiple sources of risk. The Administrator
6 shall promulgate regulations that set forth the criteria by which demonstration projects
7 will be selected.
8 "(2) ADDITIONAL HEALTH BENEFITS. -- In the course of conducting
9 these demonstration projects, if a distinct pattern of adverse health effects is identified
10 in the surrounding community, the Administrator shall consider the provision of
11 additional health benefits to the affected community, in an effort to improve
12 community health and welfare. Additional benefits may include services such as
13 consultations on health information and health screening, the kind and availability of
14 which will be set forth in regulations promulgated by the Administrator. These
15 benefits shall not duplicate any activities already undertaken at those facilities by the
16 Agency for Toxic Substances and Disease Registry under Section 104(i) of this Act.
17 "(3) MULTIPLE SOURCES OF RISK. -- For the purposes of this section,
/ ._
18 the term "multiple sources of riskVmeans-
19 "(A) health risks from the existence of and exposure to hazardous
20 substances in the vicinity of a facility for which a response action under this
21 Act is considered, which may present risks to persons who are also at risk due
22 to conditions at such a facility; or
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1 "(B) health risks from releases or threatened releases of a hazardous
2 substance, pollutant or contaminant from facilities, permitted or otherwise, in
3 the vicinity of a facility for which a response action under this Act is being
4 considered, which may present risks to persons who are also at risk due to the
5 specific facility for which a response action is being considered.
6 "(4) CONSISTENCY WITH DESIGNATION OF EMPOWERMENT
7 ZONES. -- The Administrator shall, to the maximum extent practicable, select
8 locations for conducting demonstration projects under this subsection that coincide
9 with areas which have been identified as empov,ei,nuit zones under the Omnibus
10 Budget Reconciliation Act of 1994 (P.L. 103-66).
11 "(5) RIGHT TO PETITION. - Any person may petition the Administrator to
12 conduct a demonstration project under this subsection at a specified location. Without
13 regard to paragraph (4), the Administrator may grant such a petition if:
14 "(..' the petition sets out a reasonable basis in fact that the population
15 residing in the vicinity of the specified location may be exposed to multiple
16 sources of risk as described in paragraph (3) and;
17 "(B) the petition otherwise meets the requirements of regulations
18 promulgated by the Administrator which set forth the criteria by which
19 demonstration projects will be selected.
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1 "(6) REVIEWS OF PETITIONS. -The Administrator's determinations and
2 reviews of petitions under this subsection are committed to the Administrator's
3 unreviewable discretion.
4 "(7) INTERAGENCY COORDINATION. -The Administrator shall
5 coordinate with other departments or agencies as necessary in carrying out the
6 responsibilities of this subsection.".
7
8 SEC. 107. ASSESSING RISKS FROM MULTIPLE SOURCES.
9 Section 10S(a) of the Act (42 U.S.C. 9605(a)) is amended by adding after paragraph
10 (10) the following new paragraph --
11 "(11) standards and procedures for assessing the risks, and the cumulative
12 impact of such risks, posed by the release or threatened release of hazardous
13 substances, or pollutants, or contaminants from multiple sources of risk (as described
14 in section 117(1)(3) of this Act) in and around a facility, for utilization in response
15 actions authorized by this Act. The demonstration projects authorized under
16 subsection 1170) of this Act shall be used to help meet the requirements of this
17 subsection.".
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18
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19 SEC. 108. MULTIPLE SOURCES OF RISK IN PRIORITY SETTING.
20 Section 105(a)(8)(A) of the Act (42 U.S.C. 9605(a)(8)(A)) is amended by adding in
21 the last sentence before "and other appropriate factors" the following -
22 "the presence of multiple sources of risk (described in section 117(1)(3) of this Act) to
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1 affected communities,".
2
3 SEC. 109. DISEASE REGISTRY AND MEDICAL CARE PROVIDERS.
4 Section 104(i)(l) of the Act (42 U.S.C. 9604(i)(l)) is amended --
5 (a) by amending subparagraph (A) to read as follows -
6 "(A) in cooperation with the States, for scientific purposes and public health
7 purposes, establish and maintain a national registry of persons exposed to toxic
8 substances;"; and
9 (b) by amending subparagraph (E) by striking "admissions to hospitals and other
10 facilities and services operated or provided by the Public Health Service" and by inserting -
11 "referral to accredited medical care providers".
12
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I SEC. 110. SUBSTANCE PROFILES.
2 Section 104(i)(3) of the Act (42 U.S.C. 9604(i)(3)) is amended by amending the
3 paragraph beginning "Any lexicological profile or revision thereof to read as follows -
4 "Any lexicological profile or revision thereof shall reflect the Administrator of
5 ATSDR's assessment of all relevant lexicological testing which has been peer
6 reviewed. The profiles prepared under this paragraph shall be for those substances
7 highest on the list of priorities under paragraph (2) for which profiles have not
8 previously been prepared or for substances not on the listing but which have been
9 found at non-National Priorities List facilities and which have been determined by
10 ATSDR to be of critical health concern. Profiles required under this paragraph shall
11 be revised and republished as necessary, based on scientific need. Such profiles shall
12 be provided to the States and made available to other interested parties.".
13
14 SEC, 111. DETERMINING HEALTH EFFECTS.
15 Section 104(0(5) of the Act (42 U.S.C. 9604(i)(5)) is amended --
16 (a) in subparagraph (A) by -
17 (1) striking "designed to determine the health effects (and techniques for
18 development of methods to determine" such health effects) of such substance" and
19 inserting --
20 "conducted directly or by means such as cooperative agreements and grants
21 with appropriate public and nonprofit institutions. The research shall be
22 designed to determine the health effects (and techniques for development of
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1 methods to determine such health effects) of the substance"; and
2 (2) redesignating clause (iv) as "(v)", striking "and" after clause (iii), and by
3 inserting a new clause (iv) to read as follows -
4 "(iv) laboratory and other studies which can lead to the development of
5 innovative techniques for predicting organ-specific, site-specific, and system-
6 specific acute and chronic toxicity; and"; and
7 (b) striking subparagraph (D).
8
9 SEC. 112. PUBLIC HEALTH AND RELATED HEALTH ACTTVrnES AT NPL
10 FACILITIES.
11 Section 104(i)(6) of the Act (42 U.S.C. 9604(0(6)) is amended by
12 (a) amending subparagraph (A) to read as follows ~
13 "(A) The Administrator of ATSDR shall perform a public health assessment or
14 related health activity for each facility on the National Priorities List established under
15 section 105 of this Act. The public health assessment or related health activity shall
16 be completed for each facility proposed for inclusion on the National Priorities List
17 not later than one year after the date jof proposal for inclusion, including those
18 facilities owned by any department" agency, or instrumentality of the United States. ";
19 and
20 (b) in subparagraph (H), striking "health assessment" and "such assessment" each
21 place that they appear and inserting "public health assessment or related health activity".
22
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1 SEC. 113. HEALTH STUDIES.
2 Section 104(i)(7)(A) of the Act (42 U.S.C. 9604(i)(7)(A)) is amended to read as
3 follows ~
4 "(A) Whenever in the judgment of the Administrator of ATSDR it is
5 appropriate on the basis of the results of a public health assessment or on the basis of
6 other appropriate information, the Administrator of ATSDR shall conduct a human
7 health study of exposure or other health effects for selected groups or individuals in
8 order to determine the desirability of conducting full scale epidemiologic or other
9 health studies of the entire exposed population.".
10
11 SEC. 114. DISTRIBUTION OF MATERIALS TO HEALTH PROFESSIONALS
12 AND MEDICAL CENTERS.
13 Section 104(0(14) of the Act (42 U.S.C. 9604(0(14)) is amended to read as follows --
14 "(14) In implementing this subsection and other health-related provisions of
15 this Act in cooperation with the States, the Administrator of ATSDR shall --
16 "(A) assemble, develop as necessary, and distribute to the States,
17 medical colleges, physicians, nursing institutions, nurses, and other health
<_.
18 professionals and medical Centers, appropriate educational materials (including
19 short courses) on the medical surveillance, screening, and methods of
20 prevention, diagnosis and treatment of injury or disease related to exposure to
21 hazardous substances (giving priority to those listed in paragraph (2)), through
22 means the Administrator of ATSDR considers appropriate; and
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1 "(B) assemble, develop as necessary, and distribute to the general
2 public and to at-risk populations appropriate educational materials and other
3 information on human health effects of hazardous substances.
4
5 SEC. 115. GRANT AWARDS/CONTRACTS/COMMUNTTY ASSISTANCE
6 ACTIVITIES.
7 Section 104(i)(15) of the Act (42 U.S.C. 6904(i)(15)) is amended by «
8 (a) inserting "(A)" before "The activities";
9 (b) striking "cooperative agreements with States (or political subdivisions thereof)"
10 and inserting -
11 "grants, cooperative agreements, or contracts with States (or political
12 subdivisions thereof), other appropriate public authorities, public or private
13 institutions, colleges, and universities, and professional associations,";
14 (c) in the second sentence, inserting "public" before "health assessments"; and
15 (d) adding a new subparagraph as follows ~
16 "(B) When a public health assessment or related health activity is
n conducted at a facility on, or a release being evaluated for inclusion on the
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18 National Priorities List, the* Administrator of ATSDR may provide the
19 assistance specified in this paragraph to public or private non-profit entities,
20 individuals, and community-based groups who may be affected by the release
21 or threatened release of hazardous substances in the environment.".
22
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I SEC. 116. PUBLIC HEALTH RECOMMENDATIONS IN REMEDIAL ACTIONS.
2 Section 121(c) of the Act (42 U.S.C. 962l(c)) is amended by inserting after the
3 phrase "remedial action" the second time it appears the following -
4 ", including public health recommendations and decisions resulting from activities
5 under section 104(i),H.
6
7 SEC. 117. ATSDR NOTIFICATION.
8 Section 122 of the Act (42 U.S.C. 9622) is amended by inserting after subsection (m)
9 the following new subsection -
10 "(n) NOTIFICATION OF ATSDR. - When the Agency for Toxic Substances and
11 Disease Registry (ATSDR) has conducted health related response activities pursuant to
12 section 104(i) in response to a release or threatened release of any hazardous substance that
13 is the subject of negotiations under this section, the President shall notify ATSDR of the
14 negotiations and shall encourage the participation of ATSDR in the negotiations.".
15
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1
2 TITLE H - STATE ROLES
3
4 SEC. 201. STATE AUTHORITY.
5 (a) Title I of the Act (42 U.S.C. 9600 et.seq.) is amended by adding after section
6 126 the following new section -
7 "SEC. 127. STATE AUTHORITY. --
8 "(a) STATE PROGRAM AUTHORIZATION. --
9 "(1) IN GENERAL.- At any time after the promulgation of the criteria
10 required by paragraph (3) of this subsection, a State may apply to the
11 Administrator to carry out, under its own legal authorities, response actions
12 and enforcement activities at all facilities listed or proposed for listing on the
13 National Priorities List, or certain categories of facilities listed or proposed for
14 listing on the National Priorities List, within the State. This section shall not
15 apply to any facility owned or operated by a department, agency, or
16 instrumentality of the United States listed on the National Priorities List if, on
F7 the date of enactment of the Superfund Reform Act of 1994, an interagency
t
18 agreement for such facility jias. been entered into pursuant to section 120(a)(2).
19 "(2) REQUIREMENTS FOR AUTHORIZATION. - If the
20 Administrator determines that the State possesses the legal authority, technical
21 capability, and resources necessary to conduct response actions and
22 enforcement activities in a manner that is substantially consistent with this Act
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24
1 and the National Contingency Plan at the facilities listed or proposed for listing
2 on the National Priorities List for which it seeks authorization, the
3 Administrator, pursuant to a contract or agreement entered into between the
4 Administrator and the State, may authorize the State to assume the
5 responsibilities established under this Act at all such facilities or categories of
6 facilities. Except as. otherwise provided in this Act, such responsibilities
7 include, but are not limited to, responding to a release or threatened release of
8 a hazardous substance or pollutant or contaminant; selecting response actions;
9 expending the Fund in amounts authorized by the Administrator to finance
10 response activities; and taking enforcement actions, including cost recovery
11 actions to recover Fund expenditures made by the State. In an application for
12 authorization, a State shall acknowledge its responsibility to address all
13 response actions at the facilities for which it seeks authorization.
14 "(3) PROMULGATION OF REGULATIONS. -- The Administrator
15 shall issue regulations to determine a State's eligibility for authorization and
16 establish a process and criteria for withdrawal of such an authorization. At a
12 minimum, a State must demonstrate ~
f_\
18 (A) that it has a process for allocating liability among potentially
19 responsible parties that is substantially consistent with section I22a of
20 this Act (as added by the Superfund Reform Act of 1994);
21 (B) that it provides for public participation in a manner that is
22 substantially consistent with section 117 of this Act and the National
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25
1 Contingency Plan;
2 (C) that it provides for selection and conduct of response actions
3 in a manner that is substantially consistent with section 121 of this Act;
4 and
5 (D) that it provides for notification of and coordination with
6 trustees in a manner that is substantially consistent with section
7 104(b)(2) and section 122(j)(l) of this Act.
8 "(b) REFERRAL OF RESPONSIBILITIES. --
9 "(1) IN GENERAL. -- At any tine af*er the promulgation of the
10 criteria required by paragraph (3) of this subsection, a State may apply to the
11 Administrator to carry out, under its own legal authorities, response actions at
12 a specific facility or facilities listed or proposed for listing on the National
13 Priorities List, within the State.
14 "(2\ REQUIREMENTS FOR REFERRAL. -- If the Administrator
15 determines that the State possesses the legal authority, technical capability, and
16 resources necessary to conduct response actions and enforcement activities in a
17 manner substantially consistent with this Act and the National Contingency
18 Plan at the facilities listed or proposed for listing on the National Priorities
19 List facilities for which it seeks referral, the Administrator, pursuant to a
20 contract or agreement entered into between the Administrator and the State,
21 may refer the responsibilities established under this Act to the State for the
22 facilities for which the State seeks referral. Except as otherwise provided in
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26
1 this Act, such responsibilities include, but are not limited to, responding to a
2 release or threatened release of a hazardous substance or pollutant or
3 contaminant; selecting response actions; expending the Fund in amounts
4 authorized by the Administrator to finance response activities; and taking
5 enforcement actions, including cost recovery actions to recover Fund
6 expenditures made by the State.
7 "(3) PROMULGATION OF REGULATIONS. -- The Administrator
8 shall promulgate regulations to determine a State's eligibility for referral and
9 establish a process and criteria for withdrawal of such referral. At a
10 minimum, a State must demonstrate that it meets the requirements described in
11 subsection (a)(3).
12 "(c) AUTHORIZED USE OF FUND. -- At facilities listed on the National
13 Priorities List for which a State is authorized under subsection (a), and at facilities
14 listed on the National Priorities List which are referred to a State under subsection
15 (b), the State shall be eligible for response action financing from the Fund. The
16 Administrator shall ensure that all allocations of the Fund to the States for the purpose
17 of undertaking site-specific response/actions are based primarily on the relative risks
*/ ~
18 to human health ;jU the environment posed by the facilities eligible for funding. The
19 amount of Fund financing for a State-selected response action at a facility listed on
20 the National Priorities List shall -
21 "(1) take into account the number and financial viability of parties
22 identified as potentially liable for response costs at such facility, and
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27
1 "(2) be limited to the amount necessary to achieve a level of response
2 that is not more stringent than that required under this Act.
3 A State also may obtain Fund financing to develop and enhance its capacity to
4 undertake response actions and enforcement activities. The Administrator shall
5 establish specific criteria for allocating expenditures from the Fund among States for
6 the purposes of undertaking response actions and enforcement activities at referred
7 and State-authorized facilities, and building state capacities to undertake such response
8 actions and enforcement activities. The Administrator shall develop a program and
9 provide an appropriate level of Fund financing to assist Indian tribes in developing
10 and enhancing their capabilities to conduct response actions and enforcement
11 activities.
12 "(d) STATE COST SHARE. ~ As provided in section 104(c)(3)(B) of this
13 Act (as added by the Superfund Reform Act of 1994), a State shall pay or assure
14 payment of IS percent of the costs of all response actions and program support or
15 other costs for which the State receives funds from the Fund under this section. An
16 Indian tribe authorized to conduct a response actions and enforcement activities or to
17 which facilities have been referred under this section is not subject to the cost-share
< '._
18 requirement of this subsection. ,/ -
19 "(e) TERMS AND CONDITIONS; COST RECOVERY. - A contract or
20 agreement for a State authorization or referral under this section is subject to such
21 terms and conditions as the Administrator prescribes. The terms and conditions shall
22 include requirements for periodic auditing and reporting of State expenditures from
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28
1 the Fund. The contract or agreement may cover a specific facility, a category of
2 facilities, or all facilities listed or proposed to be listed on the National Priorities List
3 in the State. The contract or agreement shall require the State to seek cost recovery,
4 as contemplated by this Act, of all expenditures from the Fund. Five percent of the
5 monies recovered by the State may be retained by the State for use in its hazardous
6 substance response program, and the remainder shall be returned to the Fund. Before
7 making further allocations from the Fund to any State, the Administrator shall take
8 into consideration the effectiveness of the State's enforcement program and cost
9 recovery efforts.
10 "(f) ENFORCEMENT OF AGREEMENTS. -- If the Administrator enters
/
11 into a contract or agreement with a State pursuant to this section, and the State fails to
12 comply with any terms and conditions of the contract or agreement, the
13 Administrator, after providing sixty days notice, may withdraw the State authorization
14 or referral, or seek in the appropriate federal district court to enforce the contract or
15 agreement to recover any funds advanced or any costs incurred because of the breach
16 of the contract or agreement by the State.
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29
1 M(g) MORE STRINGENT STATE STANDARDS. -- Under either an
2 authorization or referral, a State may select a response action that achieves a level of
3 cleanup that is more stringent than required under section 121(d) of this Act if the
4 State agrees to pay for the incremental increase in response cost attributable to
5 achieving the more stringent cleanup level. Neither the Fund nor any party liable for
6 response costs shall incur costs in excess of those necessary to achieve a level of
7 cleanup required under section 121(d) of this Act.
8 "(h) OPPORTUNITY FOR PUBLIC COMMENT. - The Administrator shall
9 make available, for public review and comment, applications for authorization under
10 subsection (a) and applications for referral under subsection (b). The Administrator
11 shall not approve or withdraw authorization or referral from a State unless the
12 Administrator notifies the State, and makes public, in writing, the reasons for such
13 approval or withdrawal.
14 "(i) PERIODIC REVIEW OF AUTHORIZED STATE PROGRAMS AND
IS REFERRALS. - The Administrator shall conduct a periodic review of authorized
16 State programs and referrals to determine, among other things, whether -
17 "(1) the response actions were selected and conducted in a manner that
f .
18 was substantially consistent .with this Act, the National Contingency Plan, and
19 the contract or agreement between the Administrator and the State;
20 "(2) the State response costs financed by Fund expenditures were
21 incurred in the manner agreed to by the State, in accordance with the contract
22 or agreement between the Administrator and the State; and
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30
1 "(3) the State's cost recovery efforts and other enforcement efforts
2 were conducted in accordance with the contract or agreement between the
3 Administrator and the State.
4 The Administrator, in consultation with the States, shall develop specific criteria for
5 periodic reviews of authorized State programs and referrals. The Administrator shall
6 establish a mechanism to make the periodic State reviews available to the public.
7 "(j) MODIFICATION OF RESPONSE. -- At a facility for which a State
8 selects a response action under an authorization or a referral, the State shall afford the
9 opportunity for public participation in a mam sr tr it s ubstantially consistent with
10 the requirements of section 117(f)-(i) of this Act, and shall give notice of and a copy
11 of the proposed plan for response action to the Administrator. The State also shall
12 give prompt written notice and a copy of the final decision in selecting the response
13 action to the Administrator. Within 90 days from the date of receipt of such notice
14 and final respond action decision from the State, the Administrator may issue a
15 notice of a request to modify the State-selected remedy. The Administrator's notice
16 shall be in writing and shall set forth the basis for the Administrator's position, and
17 the final date for responding to the Administrator's request, which shall be no less
*"'--.
18 than 90 days from the date of the notice. If the State's response does not resolve the
19 Administrator's concerns to the Administrator's satisfaction, the Administrator may
20 withhold the distribution of Fund monies for the selected response action or may
21 withdraw all or part of the State's authorization or referral.
22 "(1) EFFECT OF SECTION. -- The President shall retain the authority to
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31
1 take response actions at facilities listed or proposed for listing on the National
2 Priorities List that are not being addressed by a State under an authorization or
3 referral pursuant to this section. At facilities listed or proposed for listing on the
4 National Priorities List that are being addressed by a State under either an
5 authorization or a referral, the President may take response actions that the President
6 determines necessary to protect human health or the environment, if the State fails,
7 after a request by the Administrator to take such response actions in a timely manner.
8 A State does not have the authority, except pursuant to this section, to take or order a
9 response action, or any other action relating to releases or threatened releases, at any
10 facility listed or proposed for listing on the National Priorities List. This section does
11 not affect the authority of the United States under this Act to seek cost recovery for
12 costs incurred by the United States.
13 (b) TRANSITION AND CONFORMING AMENDMENTS. --
14 (1) Sections 104{c)(5), 104
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32
1 "Except as otherwise provided in this Act, nothing";
2 (3) Section 121(f)('l) of the Act is amended by striking the existing provisions
3 and inserting -- "The President may repeal, no earlier than one year after the
4 promulgation of final regulations under sections 127(a)(3) and 127(b)(3), the
5 regulations issued under this paragraph prior to the date of enactment of the
6 Superfund Reform Act of 1994.";
7 (4) Section 121(f)(2) of the Act is amended by -
8 (A) striking "legally applicable or relevant and appropriate" from the
9 second sentence of subparagraph (A); and
10 (B) striking "subsection (d)(4)" from the second sentence of
11 subparagraph (A) and inserting "subsection (d)(5)(C)";
12 (5) Section 121(f)(3) of the Act is amended by --
13 (A) striking "legally applicable or relevant and appropriate" from the
14 second sentence of subparagraph (A); and
15 (B) striking "subsection (d)(4)" from the second sentence of
16 subparagraph (A) and inserting "subsection (d)(5)(C)"; and
17 (6) Section 302(d) of the Act,is amended by striking "Nothing" and inserting -
/ "" i-
18 "Except as otherwise provided in this'Act, nothing".
19
20 SEC. 202. TRANSFER OF AUTHORITIES.
21 Section 120(g) of the Act (42 U.S.C. 9620(g)) is amended by adding, after "the
22 Environmental Protection Agency," the phrase "and except as provided in section 127,".
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33
1 SEC. 203. STATE ROLE IN DETERMINATION OF REMEDIAL ACTION TAKEN.
2 Section 120(h)(3) of the Act (42 U.S.C. 9620(h)(3)) is amended by adding at the end
3 thereof the following:
4 "If the property being transferred is part of a facility subject to a State authorization
5 or a referral under section 127, all demonstrations required by this paragraph to be
6 made to the Administrator shall be made to the appropriate State official.".
7
8 SEC. 204. STATE ASSURANCES.
9 Section 104(c)(3) of the Act (42 U.S.C. 9604(c)(3)> is amended by»
10 (a) in the beginning of the paragraph after "(3)" inserting "State cost shares for
11 response actions and programs for which Superfund funds may be allocated under this section
12 or section 127 shall be as follows --";
13 (b) striking "The" before "President" and inserting "(A) For all remedial actions for
14 which a Record of Decision is signed before the date of enactment of the Suporfund Reform
15 Act of 1994, the";
16 (c) redesignating subparagraphs (A), (B) and (C) of existing section 104(c)(3) as
17 subparagraphs (1), (2) and (3) respectively; by striking "(i)", wherever it appears and
<..._
18 inserting "(I)"; and striking "(ii)" wherever it-appears and inserting "(II)";
19 (d) adding a new subparagraph (B) as follows -
20 "(B) Subject to the provisions of subparagraph (C), for the costs of all
21 response actions for which a Record of Decision or other decision document is
22 signed after the date that is one year after the effective date of final regulations
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34
1 promulgated under section 127(a)(3) and section 127(b)(3), and for all program
2 or other costs for which Fund money may be allocated to the State pursuant to
3 this section or section 127, the President shall not provide or authorize funding
4 from the Fund unless the State first enters into a contract or agreement with
5 the President providing assurances deemed adequate by the President that the
6 State will pay or assure payment of 15 per cent of all such costs as required by
7 section 127(d). The Administrator may provide funding authorized under this
8 paragraph for a one-year or other period for all costs and facilities in a State;
9 in that event, the State cost share requirement set forth above shall apply to all
10 costs covered by such period."; and
11 (e) adding a new subparagraph (C) as follows
12 . "(C) Each State shall have the option of receiving funding for all
13 response action costs and program or other costs for which funding is
14 authorized under thus section or section 127 pursuant to either subparagraph
15 (A) or subparagraph (B) of this paragraph. The option selected by the State
16 .shall apply to all contracts and agreements signed pursuant to this section or
17 section 127.".
*/ "*
18
19 SEC. 205. SITING.
20 Section 104(c)(9) of the Act (42 U.S.C. 9604(c)(9)) is amended to read as follows --
21 "(9) SITING. -- Effective one year after the date of enactment of the
22 Superfund Reform Act of 1994, the President shall not provide any remedial actions
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35
1 pursuant to this section unless the State in which the release occurs submits a report
2 describing its plans for adequate disposal capacity for hazardous wastes, in accordance
3 with guidelines issued by the Administrator.".
4
5 SEC. 206. THE NATIONAL PRIORITIES LIST.
6 (a) Section 105(a)(8)(B) the Act (42 U.S.C. 9605(a)(8)(B)) is amended by striking "as
7 part of the plan", and by inserting before "Within" the sentence "The National Priorities
8 List, and any modifications to the National Priorities List, may be adopted administratively,
9 and without rulemaking.".
10 (b) Section 105(a)(8) of the Act (42 U.S.C. 9605(a)(8)) is amended by adding after
11 subparagraph (B) the following new subparagraph -
12 "(C) before determining that a facility is to be listed on the National Priorities
13 List, the Administrator shall publish a notice proposing the facility for listing on the
14 National Prioutiv-* List and shall provide an opportunity for public comment. Public
IS notice and opportunity for comment also shall be provided before a decision by the
16 Administrator to remove a facility from the National Priorities List. The
17 Administrator shall establish a procedure under which any person may request that a
*/ ~
18 facility be considered for listing on, or removal from, the National Priorities List.
19 The Administrator has the sole discretion to list or remove a facility on the National
20 Priorities List.".
21
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36
1 SEC. 207. THE STATE REGISTRY.
2 Section 105(a)(8) of the Act (42 U.S.C. 9605(a)(8)) is amended by adding after
3 subparagraph (C) (as added by this Act) a hew subparagraph --
4 "(D) STATE REGISTRY. - Each State shall maintain and make available to
5 the public a list of facilities in the State that are believed to present a current or
6 potential hazard to human health or the environment due to the release or threatened
7 release of hazardous substances or pollutants or contaminants. Each State, in
8 consultation with the Administrator and other appropriate federal agencies, shall
9 prepare such listing, and shall, on'an annual basis, publish the State Registry,
10 specifying the governmental agency addressing the facility, and whether the facility is
11 on the National Priorities List.".
12
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37
1
2 TITLE HI - VOLUNTARY RESPONSE
3
4 SEC. 301. PURPOSES AND OBJECTIVES.
5 The purposes and objectives of this title are to
6 (a) significantly increase the pace of response activities at contaminated sites by
7 promoting and encouraging the development and expansion of State voluntary response
8 programs, and
9 (b) benefit the public welfare by returning contaminated sites to economically
10 productive uses.
11
12 SEC. 302. STATE VOLUNTARY RESPONSE PROGRAM.
13 Title I of the Act is amended by adding after section 127 (as added by this Act) the
14 following new section
15 "SEC. 128. VOLUNTARY RESPONSE PROGRAM. -
16 "(a) IN GENERAL. - The Administrator shall establish a program to provide
17 technical and other assistance to the States to establish and expand voluntary response
18 programs.
19 H(b) VOLUNTARY RESPONSE PROGRAM. - The Administrator shall assist States
20 to establish and administer a voluntary program that --
21 "(1) covers all eligible facilities, as defined in subsection (c) of this section,
22 within the State;
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38
1 "(2) provides adequate opportunities for public participation, including prior
2 notice and opportunity for comment, in selecting response actions;
3 "(3) provides opportunities for technical assistance for voluntary response
4 actions;
5 "(4) has the capability, through enforcement or other mechanisms, of assuming
6 the responsibility for completing a response action if the current owner or prospective
7 purchaser fails or refuses to complete the necessary response, including operation and
8 maintenance; and
9 "(5) provides adequate oversight and has adequate enforcement authorities to
10 ensure that voluntary response actions are completed in accordance with applicable
11 Federal and State laws, including applicable permit requirements and any on-going
12 operation and maintenance or long-term monitoring activities.
13 H(c) ELIGIBLE FACILITIES. --
14 "(1) Except as provided in paragraph 2 of this subsection, the term "eligible
IS facility" means a facility or portion of a facility where there has been a release or
16 threat of release of a hazardous substance, pollutant, or contaminant into the
17 environment. ,*.-
*/ *"
18 "(2) The term "eligible facility" does not include any of the following --
19 "(A) a facility at which a remedial investigation and feasibility study is
20 underway, unless the Administrator, in consultation with the State, determines
21 that it is appropriate to allow the response action at such a facility to proceed
22 under a voluntary response program;
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39
1 "(B) a facility with respect to which a Record of Decision has been
2 issued under section 104 of this Act;
3 "(C) a facility with respect to which a corrective action permit
4 condition or order has been proposed, issued, modified, or amended to require
5 implementation of specific corrective measures under section 3004(u), 3004(v),
6 or 3008(h) of the Solid Waste Disposal Act [42 U.S.C. 6924(u), 6924(v), or
7 6928(h)]:
8 "(D) a land disposal unit with respect to which a closure notification
9 under subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq.) has
10 been submitted;
11 "(E) a facility with respect to which an administrative or judicial order
12 or decree concerning the response action has been issued, sought, or entered
13 into by the United States under this Act, the Solid Waste Disposal Act (42
14 U.S.C. 6901 et seq.), the Atomic Energy Act of 1954 (42 U.S.C. 2011 et
15 seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the
16 Toxic Substances Control Act (15 U.S.C. 2601 et seq.) or title XIV of the
IT Public Health Service Act, commonly known as the Safe Drinking Water Act
<-_
18 (42 U.S.C. 300(f) et seq.); and-
19 "(F) a facility at which assistance for response activities may be
20 obtained under subtitle I of the Solid Waste Disposal Act (42 U.S.C. 6991 et
21 seq.) from the Leaking Underground Storage Tank Trust Fund established
22 under section 9508 of the Internal Revenue Code of 1986.
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40
1 "(3) A facility listed or proposed for listing on the National Priorities List may
2 be an "eligible facility" if --
3 "(A) the facility is not a facility identified in paragraph (2);
4 "(B) the State in which the facility is located has obtained a State
5 authorization or referral under section 127 of this Act; and
6 "(Q the Administrator concurs in the State's determination to address
7 the facility under its voluntary response program.
8 "(d) ANNUAL REPORTING. - The Administrator shall report, not later than 1
9 year after enactment of this Act and annually therearVr f> the Congress on the status of
10 State voluntary response programs including -
11 "(1) whether the State's voluntary response program continues to meet the
12 criteria set forth in subsection (b) or (c);
13 "(2) whether the State has adopted procedures to ensure that all response
14 actions complete^ ?r undertaken under the State's voluntary response program comply
15 with all applicable Federal and State laws;
16 "(3) whether public participation opportunities have been adequate during the
17 . process of selecting a response action for each voluntary response;
18 "(4) whether voluntary response" actions completed or undertaken under the
19 State voluntary response program have been implemented in a manner that has
20 reduced or eliminated risks to human health and the environment to the satisfaction of
21 the State;
22 "(5) whether voluntary response actions completed or undertaken under the
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41
1 State voluntary response program at facilities listed or proposed for listing on the
2 National Priorities List were conducted in accordance with section 121 (d) of this Act;
3 and
4 "(6) whether a voluntary response action has increased risk to human health or
5 the environment, and whether a State has taken timely and appropriate steps to reduce
6 or eliminate that risk to human health or the environment.
7 "(i) STATUTORY CONSTRUCTION. -- This section is not intended --
8 "(1) to impose any requirement on a State voluntary response program existing
9 on or after the date of enactment of this Act; or
10 "(2) to affect the liability of any person or response authorities afforded under
11 any law (including any regulation) relating to environmental contamination, including
12 this Act (except as expressly provided in section 101(39)(D) (42 U.S.C.
13 9601(39)(D)), section 107(a)(5)(Q (42 U.S.C. 9607(a)(5)(Q), the Solid Waste
14 Disposal Act (42 U.S.C. 6901 et. seq.), the Federal Water Pollution Control Act (33
IS U.S.C. 1251 et. seq.), the Toxic Substances Control Act (IS U.S.C. 2601 et. seq.),
16 or title XIV of the Public Health Service Act, commonly known as the "Safe Drinking
ir Water Act" (42 U.S.C. 300(f) et. seq.).".
«*..
18
19 SEC. 303. SITE CHARACTERIZATION PROGRAM.
20 Title I of the Act is amended by adding after section 128 (as added by this Act) the
21 following new section ~
22 "SEC. 129. SITE CHARACTERIZATION TECHNICAL ASSISTANCE PROGRAM. --
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42
1 "(a) IN GENERAL. -- The Administrator shall establish a program to provide
2 technical and other assistance to municipalities to conduct site characterizations for facilities
3 at which voluntary response actions are being conducted or are proposed to be conducted
4 pursuant to a State voluntary response program that meets the requirements described in
5 section 127.
6 "(b) TECHNICAL ASSISTANCE. -- In carrying out the program established under
7 subsection (a), the Administrator may provide technical and other assistance to a municipality
8 to conduct a site characterization of a facility within the jurisdiction of the municipality at
9 which voluntary response actions are being conducted or are proposed to be conducted. A
10 municipality requesting technical and other assistance shall provide to the Administrator the
s
11 following information
12 "(1) describing the facility at which voluntary response actions are being
13 conducted or are proposed to be conducted;
14 "(2) demonstrating the financial need of the owner or prospective purchaser of
15 such a facility for funds to conduct a site characterization;
16 "(3) analyzing the potential of the facility for creating new businesses and
IT employment opportunities on completion of the response action;
18 "(4) estimating the fair market Value of the site after the proposed or ongoing
19 response action, if a response action is necessary;
20 "(5) regarding the economic viability and commercial activity on real
21 property --
22 (i) located within the immediate vicinity of the affected site at
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43
1 the time of consideration of the application; or
2 (ii) projected to be located within the immediate vicinity of the
3 affected site by the date that is 5 years after the date of the
4 consideration of the application;
5 "(6) regarding the potential of the facility for creating new businesses and
6 employment opportunities on completion of a response action;
7 "(7) regarding whether the affected site is located in an economically
8 distressed community;
9 "(8) regarding the presence of multiple sources of risk as described in section
10 117(k)ofthi3 Act; and
11 "(9) in such form, as the Administrator considers appropriate to carry out the
12 purposes of this section.".
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44
I
2 .
3 TITLE IV - LIABILITY AND ALLOCATION
4 '
1 SEC. 401. RESPONSE AUTHORITIES.-
2 (a) Section 104(e)(2) of the Act (42 U.S.C. 9604(e)(2)) is amended by deleting the
3 word "cleanup" and inserting the phrase "response action", and inserting after subparagraph
4 (C) the following --
5 "(D) The nature and extent of all activities and operations at such
6 vessel or facility, including the identity of any persons engaged in, responsible
7 for, controlling, or having the ability to control such activities or operations.
8 "(E) Information relating to the liability or responsibility of any person
9 to perform or pay for a response action.
10 "(F) Information that is otherwise relevant to enforce the provisions of
11 this Act."
12 (b) Section 104
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45
1 mileage that are paid witnesses in the courts of the United States. In the event of
2 contumacy or failure or refusal of any person to obey any such subpoena, any district
3 court of the United States in which venue is proper shall have jurisdiction to order
4 any such person to comply with such subpoena. Any failure to obey such an order of
5 the court is punishable by the court as a contempt thereof.
6 "(8) Confidentiality of information -
7 "(A) Any records, reports, or information obtained from any person
8 under this section (including records, reports or information obtained by
9 representatives of the President and re^o'-k rpr rts or information obtained
10 pursuant to a contract, grant or other agreement to perform work pursuant to
11 this section, but not including documents, reports, compilations, summaries, or
12 other analyses prepared by the President or representatives of the President
13 which reference or incorporate information obtained under this section) shall
14 be avai'ab'~ao the public, except as follows:
15 "(i) Upon a showing satisfactory to the President (or the State,
16 as the case may be) by any person that records, reports or information,
I7~ or any particular part thereof (other than health or safety effects daia),
*<.._
18 to which the President, {or the State, as the case may be) or any officer,
19 employee, or representative has access under this section if made public
20 would divulge information entitled to protection under section 1905 of
21 Title 18 of the U.S. Code, such information or particular portion
22 thereof shall be considered confidential in accordance with the purposes
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46
1 of that section, except that such record, report, document or
2 information may be disclosed to other officers, employees, or
3 authorized representatives of the United States (including government
4 contractors) concerned with carrying out this chapter, or when relevant
5 in any proceeding under this chapter, or, if such records, reports or
6 information are obtained or submitted to the United States (or the State,
7 as the case may be) pursuant to a contract, grant or other agreement to
8 perform work pursuant to this section, to persons from whom the
9 President seeks to recover costs pursuant to this Act.
10 "(ii) This section does not require that information which is
11 exempt from disclosure pursuant to section 522(a) of Title 5 of the
12 . U.S. Code by reason of subsection (b)(5), subsection (b)(6), or
13 subsection (b)(7) of such section, be available to the public, nor shall
14 , the disclosure of any such information pursuant to this section authorize
15 disclosure to other parties or be deemed to waive any confidentiality
16 privilege available to the President under any federal or State law.".
17 " /,.
18 SEC. 402. COMPLIANCE WITH ADMINISTRATIVE ORDERS.-
19 (a) Section 106(a) of the Act (42 U.S.C. 9606(a)) is amended by
20 (1) inserting after the phrase "hazardous substance" the phrase ", or pollutant
21 or contaminant"; and
22 (2) by adding at the end thereof the following: "The President may amend
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47
1 such orders and issue additional orders, as appropriate, without a subsequent finding
2 of an imminent and substantial endangerment, to complete response action undertaken
3 in response to a release or substantial threat of a release, or to require additional
4 response actions that are necessary or appropriate.".
5 (b) Section 106(b)(l) of the Act (42 U.S.C. 9606(b)(l)) is amended
6 (1) by striking out the phrase "to enforce such order", and
7 (2) by inserting before the period ", or be required to comply with such order,
8 or both, even if another party has complied, or is complying, with the terms of the
9 same order or another order pertaining to the same facility, release or threatened
10 release"; and
11 (3) by inserting at the end of the paragraph the following --
12 "For purposes of this title, a 'sufficient cause' requires -
13 "(A) an objectively reasonable belief by the person to whom the order
14 is issued that the person is not liable for any response costs under section 107
15 of this title; or
16 "(B) that the action to be performed pursuant to the order is determined
17 to be inconsistent with the national contingency plan.
if ~
18 The existence or results of an allocation process pursuant to section 122a of this title
19 shall not affect or constitute a basis for a determination of 'sufficient cause.'".
20 (c) Section 106(b)(2) is amended by moving the second sentence of subsection
21 (b)(2)(A) and redesignating it as subsection (b)(4), and by striking the word "paragraph" in
22 such newly designated subsection (b)(4) and replacing it with the word "subsection".
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48
1 (d) Section 106(b)(2)(A) of the Act (42 U.S.C. 9602(b)(2)(A) is amended by
2 striking out the phrase "completion or, and inserting the phrase "the President determines
3 that such person has completed".
4 (e) Section 106(b)(2)(C) of the Act (42 U.S.C. 9606(b)(2)(C)) is amended by
5 inserting after the words "Subparagraph (D)" the phrase ", or as may be authorized in a
6 settlement entered into under Section 122a of this Title.".
7
8 SEC. 403. LIMITATIONS TO LIABILITY FOR RESPONSE COSTS. -
9 Section 107 of the Act (42 U.S.C. 9607), is amended-
10 (a) in subsection (a) by inserting --
11 "(5) Notwithstanding paragraphs (1) through (4) of this subsection, a person
12 who does not impede the performance of response actions or natural resource
13 restoration shall not be liable -
14 "(A) to the extent liability is based solely on subsection 107(a)(3) or
15 107(a)(4) of this Act, and the arrangement for disposal, treatment, or transport
16 for disposal or treatment, or the acceptance for transport for disposal or
17 treatment, involved less than five hundred (500) pounds of municipal solid
ff' ~
18 waste (MSW) or sewage sludge as defined in sections 101(41) and 101(44) of
19 this Act, respectively, or such greater or lesser amount as the Administrator
20 may determine by regulation;
21 "(B) to the extent liability is based solely on subsection 107(a)(3) or
22 107(a)(4) of this Act, and the arrangement for disposal, treatment, or transport
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49
1 for disposal or treatment, or the acceptance for transport for disposal or
2 treatment, involved less than ten (10) pounds or liters of materials containing
3 hazardous substances or pollutants or contaminants or such greater or lesser
4 amount as the Administrator may determine by regulation, except where -
5 "(i) the Administrator has determined that such material
6 contributed significantly or could contribute to the costs of response at
7 the facility; or
8 "(ii) the person has failed to respond fully and completely to
9 information requests by the United States, or has failed to certify that,
10 on the basis of information within its possession, it qualifies for this
11 exception;
12 "(C) to the extent liability is based solely on subsection 107(a)(l) of
13 this Act, for a release or threat of release from a facility, and the person is a
14 bona fide prospective purchaser of the facility as defined in section 101(39);
15 "(P) to the extent the liability of a department, agency, or
16 instrumentality of the United States is based solely on section 107(a)(l) or (2)
17~ with regard to a facility over which the department, agency, or instrumentality
«"..
18 exercised no regulatory or other- control over activities that directly or
19 indirectly resulted in a release of threat of a release of a hazardous substance,
20 and-
21 "(i) all activities that directly or indirectly resulted in a release
22 of threat of a release of a hazardous substance during the period of
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50
1 ownership by the United States occurred prior to 1976;
2 "(ii) the activities either directly or indirectly resulting in a
3 release or a threat of a release of a hazardous substance at the facility
4 were pursuant to a statutory authority;"
5 "(iii) such department, agency, or instrumentality of the United
6 States did not cause or contribute to the release or threat of release of
7 hazardous substances or pollutants or contaminants at the facility; and
8 "(iv) there are persons, other than the United States, who are
9 both potentially liable for the release of hazardous substances or
10 pollutants or contaminants at the facility and fully capable of
11 performing or financing the response action at the facility; or
12 "(E) to the extent the liability of a federal or state entity or
13 municipality is based solely on its ownership of a road, street, or other right of
14 way or other public transportation route over which hazardous substances are
15 transported, or the granting of a license or permit to conduct business; or
16 "(F) for more than ten percent of total response costs at the facility, in
17 aggregate, for all persons to the extent their whose liability is based solely on
18 subsections 107(a)(3) or I07
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I "(i) where either the acts or omissions giving rise to liability
2 occurred before the date thirty-six (36) months after enactment of this
3 paragraph, or the person asserting the limitation institutes or
4 participates in a qualified household hazardous waste collection
5 program within the meaning of section 101(43); and
6 "(ii) where the disposal did not occur on lands owned by the
7 United States or any department, agency, or instrumentality thereof, or
8 on any tribal land.".
9 (b) by inserting after subsection (m) the following -
10 "(n) PROSPECTIVE PURCHASER AND WINDFALL LIEN.-Where there
11 are unrecovered response costs for which an owner of a facility is not liable by
12 operation of subsection 107(a)(5)(C) of this Act, and a response action for which
13 there are unrecovered costs inures to the benefit of such owner, the United States
14 shall have a lien upon the facility for such unrecovered costs. Such lien -
15 "(1) shall not exceed the increase in fair market value of the property
16 attributable to the response action at the time of a subsequent sale or other
17 disposition of property; ,<--.
>f ~
18 "(2) shall be subject to the requirements for notice and validity
19 established in paragraph (3) of subsection (1) of this section; and
20 "(3) shall continue until the earlier of satisfaction of the lien, or
21 recovery of all response costs incurred at the facility."
22 (c) Section 120 of the Act (42 U.S.C. 9620) is amended by inserting before the
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1 word "Facilities" in the title of the section the phrase "Entities And".
2 (d) Section 120(a)(l) of the Act (42 U.S.C. 9620(a)(l)) is amended --
3 (1) after the word "title" in the first sentence by inserting the phrase "the right
4 to contribution protection set forth in Sections 113 and 122, when such department,
5 agency or instrumentality resolves its share of liability under this Act and liability for
6 all federal civil and administrative penalties and fines imposed under this Act,
7 regardless of whether such penalties and fines are punitive or coercive in nature or
8 are imposed for isolated or continuing violations.";
9 (2) by inserting the word "other" before the phrase "person or entity" in the
10 second sentence and by inserting after the second sentence the following new sentence
11
12 "The waiver of immunity in this section does not encompass uniquely
13 governmental actions such as --
14 "(A) any actions of any department, agency or instrumentality, except
15 for official seizure of or holding title to a facility, taken pursuant to Federal
16 authority to regulate; the economy in preparation for, during, or otherwise in
17- connection with war through the use and implementation of national priority
*
18 rating systems, national wag?, profit and price incentives or controls, or
19 otherwise to mobilize the national economy for war-related production; or
20 "(B) any actions of any department, agency, or instrumentality taken in
21 response to a natural disaster pursuant to the Emergency Flood Control Work
22 Act (33 U.S.C. 701(n)), or the Disaster Relief Act of 1974 (42 U.S.C. 5121 el
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53
i 5sa.).";
2 (e) Section 120(a)(4) of the Act (42 U.S.C. 9620(a)(4)) is amended--
3 (1) by inserting "currently" before "owned" in the first sentence;
4 (2) by inserting after the word "United States" the phrase "in the following
5 circumstances: (A)"; and
6 (3) by inserting after the word "List" "; (B) when such facilities are included
7 on the National Priorities List but are specifically referred to the State by the
8 Administrator pursuant to the provisions of section 127 of this Act; or (C) when such
9 laws are part of an authorized program approved by the Administrator pursuant to
10 section 127 of this Act, and such facilities are included on the National Priorities List
11 and are to be addressed by the State authorized program pursuant to section 127 of
12 this Act.
13 "Each department, agency, or instrumentality of the United States shall be
14 subject to State requirements, both substantive and procedural, respecting liability for
IS the costs of responding to releases or threats of releases of hazardous substances at
16 non-federally owned facilities referred to the State pursuant to section 127 of this Act,
17 or such requirements that are part of, a State authorized program for non-federally
18 owned facilities being addressed udder a State authorized program pursuant to section
19 127 of this Act.";
20 (4) after the word "preceding" by replacing the word "sentence" with
21 "sentences";
22 (5) at the end of the Section by adding "This waiver of immunity for such
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1 facilities shall include all civil and administrative penalties and fines imposed under
2 such laws, regardless of whether such penalties and fines are punitive or coercive in
3 nature or are imposed for isolated or continuing violations. Neither the United States,
4 nor any agent, employee or officer thereof, shall be immune or exempt from any
5 process or sanction of any State or Federal Court with respect to the enforcement of
6 any appropriate relief under such laws, but the United States shall be entitled to
7 remove any action filed in state court against any department, agency, instrumentality,
8 employee or officer of the United States to the appropriate Federal district court. No
9 agent, employee, or officer of the United Stags' s^aT b> personally liable for any civil
10 or administrative penalty under any Federal or State law with respect to any act or
11 omission within the scope of the official duties of the agent, employee, or officer.
12 All funds collected by a State from the Federal Government from penalties and fines
13 imposed for violation of any substantive or procedural requirement referred to in this
14 subsection sh?U k~v used by the State only for projects designed to improve or protect
15 the environment or to defray the costs of environmental protection or enforcement.".
16 (f) Section 1200(1) of the Act (42 U.S.C. 9620(j)(D) is amended before the
17 phraae "with respect to the site" in the second sentence by inserting "or any State law
18 applicable under Section 120(a)(4)<
19
20 SEC. 404 LIABILITY. -
21 (a) Section 107(a)(l) of the Act (42 U.S.C. 9607(a)(l)) is amended by striking the
22 word "and" and inserting the word "or";
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55
I (b) Section 107(a)(3) of the Act (42 U.S.C. 9607(a)(3)) is amended by striking out the
2 phrase "by any other party or entity,";
3 (c) Section 107(a)(4) of the Act (42 U.S.C. 9607(a)(4» is amended-
4 (1) by inserting a blank line before the phrase "from which there is a release";
5 (2) by moving the phrase "from which there is a release" to the left margin;
6 (3) inserting a comma after the phrase "threatened release"; and
7 (d) Section 107(a)(4)(A) of the Act (42 U.S.C. 9607(a)(4)(A)) is amended by inserting
8 the phrase ", including direct costs, indirect costs, and costs of overseeing response actions
9 conducted by private parties" before the phrase "incurred by the United States".
10 (e) Section 107(a)(4)(B) of the Act (42 U.S.C. 9607(a)(4)(B)) is amended-
11 (1) by striking out the word "other" both times it appears; and
12 (2) by inserting the phrase "other than the United States, a State or an Indian
13 tribe" before the phrase "consistent with the national contingency plan".
14 (f) Section 107(c)(3) of the Act (42 U.S.C. 9607(c)(3)) is amended -
15 (1) by inserting the phrase "in addition to liability for any response costs
16 incurred by the United States as a result of such failure to take proper action," after
17- the word "person" the second time it appears;
«*..
18 (2) by striking out the phrase/"at least equal to, and not more than" and
19 inserting the phrase "up to";
20 (3) by striking out the comma after the word "times"; and
21 (4) by striking out the phrase "any costs incurred by the Fund as a result of
22 such failure to take proper action" and inserting the phrase "such response costs".
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56
1 (g) Section 107 of the Act (42 U.S.C. 9607(a)(4)(B)) is amended by inserting the
2 phrase ", or pollutant or contaminant" after the term "hazardous substance" or
3 "hazardous substances" wherever they appear in sections 107(a)(2), (3) and (4);
4 107(b); 107(c); 107(d)(l) and (2); 107(0(1); I07(i); 1070); and 107(k)(l)(B).
5
6 SEC. 405. CIVIL PROCEEDINGS. -
7 (a) Section 113(a) of the Act (42 U.S.C. 9613(a)) is amended-
8 (1) by striking out the phrase "upon application by any interested person", and
9 inserting the phrase "by any adversely affected person through the filing of a petition
10 for review"; and
11 (2) by striking out the phrase "application shall be made", and inserting in lieu
12 thereof "petition shall be filed".
13 (b) Section I13(b) of the Act (42 U.S.C. 9613(b)) is amended -
14 (1) before "without regard to the citizenship," by inserting the phrase "or in
15 any manner limiting or affecting the President's ability to carry out a response action
16 under this Title,"; and
IT~ (2) by inserting immediately after the first sentence the following sentence --
«..
18 "Any action initiated in any state orjocal court against the United States (or any
19 department, agency, or instrumentality, officer or employee thereof) pursuant to or
20 under any provision of or authorized by this Title may be removed by the United
21 States to the appropriate federal district court in accordance with Section 1446 of Title
22 18 of the U.S. Code."
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57
1 (c) Section 113(g) of the Act (42 U.S.C. 9613(g)) is amended by striking paragraphs
2 (2) and (3) and insetting --
3 "(2) Actions for recovery of costs.
4 "Except as provided in Paragraph (3) below, an initial action for recovery of costs
5 referred to in section 107 of this title must be commenced --
6 "(A) for removal action, within three years after completion of all
7 removal action taken with respect to the facility, including off-site disposal of
8 any removed materials; except that if physical on-site construction of the
9 remedial action is initiated within three years after the completion of all
10 removal action taken with respect to the facility, costs incurred for removal
11 action may be recovered in the cost recovery action brought under
12 subparagraph (B); and
13 "(B) for a remedial action, within six years after initiation of physical
14 on-site construction of the remedial action.
15 "In any such action described in this subsection, the court shall enter a
16 declaratory judgment on liability for response costs or damages that will be
17" binding on any subsequent action or actions to recover further response costs
f
18 or damages. A subsequent action or actions under section 107 of this title for
19 further response costs at the vessel or facility may be maintained at any time
20 during the response action, but must be commenced no later than three years
21 after the date of completion of all response action. Except as otherwise
22 provided in this paragraph, an action may be commenced under section 107 of
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1 this title for recovery of costs at any time after such costs have been incurred.
2 "(3) Contribution --
3 "An action by a potentially responsible party against another potentially
4 responsible party for recovery of any response costs or damages must be
5 commenced within the later of --
6 "(A) the time limitations set forth in Paragraph (2) above, or
7 "(B) where recovery is sought for costs or damages paid
8 pursuant to a. judgment or settlement, three yean after -
9 "(i) the date of judgment in any action under this Act
10 for recovery of such costs or damages, or
11 "(ii) the date of any administrative order or judicial
12 settlement for recovery of the costs or damages paid or incurred
13 pursuant to such a settlement.".
14 (d) Section 113(g) of the Act (42 U.S.C. 9613(g)) is amended by inserting the
IS following at the end thereof -
16 "(4t Claims by the United States, States or Indian tribes. Claims by the
17 United States under Section 106, anavclaims by the United States, a State or Indian
tf ~
18 tribe under Section 107(a), of this Act shall not be deemed compulsory counterclaims
19 in an action against the United States, a State or an Indian tribe seeking response
20 costs, contribution, damages, or any other claim by any person under this Act.".
21 (e) Section 1130)(1) of the Act (42 U.S.C. 9613(j)(D) is amended-
22 (1) before the phrase "or ordered" by inserting the phrase "or selected by the
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1 President pursuant to this Act,"; and
2 (2) after the phrase "or ordered" by inserting the phrase "or sought".
3
4 SEC. 406. LIMITATIONS ON CONTRIBUTION ACTIONS. -
5 Section 113 of the Act (42 U.S.C. 9613) is amended -
6 (a) by amending subsection (f)(l) as follows --
7 (1) by redesignating the paragraph as subparagraph "(1)(A),";
8 (2) before the phrase "may seek contribution" by inserting the phrase "who is
9 liable or potentially liable under section 107(a) of this title";
10 (3) by striking out the phrase "during or following any civil action under
11 section 106 of this title or under section 107(a) of this title", and inserting in lieu
12 thereof the phrase "in a claim asserted under section 107(a)"; and
13 (4) by deleting the period at the end of the first sentence, and inserting -
14 'except that there shall be no right of contribution where -
15 "(i) the person asserting the right of contribution has waived
16 such rights in a settlement pursuant to this Act;
17 "(ii) the person from whom contribution is sought is liable
<
18 solely under section 107{a)(3) of this Act, and contributed less than ten
19 pounds or ten liters of material containing hazardous substances at the
20 facility, or such greater or lesser amount as the Administrator may
21 determine by regulation;
22 "(iii) the person from whom contribution is sought has entered
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1 into a final settlement with the United States pursuant to section
2 122(g).;
3 (5) before the phrase "this section and the Federal Rules" by inserting the
4 phrase "section 107(a),N; and
5 (6) by striking out the sentence "Nothing in this subsection shall diminish the
6 right of any person to bring an action for contribution in the absence of a civil action
7 under section 106 of this title or section 107 of this title.".
8 (b) by inserting after subparagraph (1)(A) the following subparagraph --
9 "(B) Any person who commences an action for contribution against a
10 person who is not Liable by operation of subsection 107(a)(S) of this Act, or
11 against a person who is protected from suits in contribution by this section or
12 by a settlement with the United States, shall be liable to the person against
13 whom the claim of contribution is brought for all reasonable costs of defending
14 against the claim, including all reasonable attorney's and expert witness fees.".
15 (c) Section 113(f) of the Act (42 U.S.C. 9613(0) is amended by striking out
16 paragraph (2), and inserting the following -
17 "(2) Settlement.
18 "A person that has resolved its liability to the United States in an
19 administrative or judicially approved settlement shall not be liable for claims
20 by other persons regarding response actions, response costs or damages
21 addressed in the settlement. A person that has resolved its liability to a State
22 in an administrative or judicially approved settlement shall not be Liable for
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1 claims by persons other than the United States regarding response costs or
2 damages addressed in the settlement for which the State has a claim under this
3 title. Such settlement does not discharge any other potentially responsible
4 persons unless its terms so provide, but it reduces the potential liability of such
5 other persons by the amount of the settlement. The protection afforded by this
6 section shall include protection against contribution claims and all other types
7 of claims, under federal or state law, that may be asserted against the settling
8 party for recovery of response costs or damages incurred or paid by another
9 person, if such costs or damages are addressed in the settlement, but shall not
0 include protection against claims based on contractual indemnification or other
11 express contractual agreements to pay such costs or damages.".
12
13 SEC. 407. SCOPE OF RULEMAKING AUTHORITY. -
14 Section 1 IS of the Act (42 U.S.C. 9615), is amended by redesignating the text of the
IS section as subsection "(a)" and adding a new subsection-
16 "(b) The authority conferred by this section includes, without limitation,
17 authority to promulgate legislative regulations to define the terms and scope of
18 sections 101 through 405 this Act, inclusive.
19 "(c) This section confirms, without limitation, authority to promulgate
20 regulations to define the terms of this Act as they apply to lenders and other financial
21 services providers, and property custodians, trustees, and other fiduciaries.".
22
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I SEC. 408. ENHANCEMENT OF SETTLEMENT AUTHORITIES. -
2 Section 122 of the Act (42 U.S.C. 9622), is amended --
3 (a) by striking out subparagraph (e)(3);
4 (b) by redesignating subparagraphs (e)(4) and (5) as subparagraphs (e)(3) and (4),
5 respectively;
6 (c) By redesignating subparagraph (e)(6) as a new section 122(o) and by amending
7 redesignated section 122(n) --
8 (1) by deleting "remedial investigation and feasibility study" and inserting in
9 lieu thereof "response action"; and
10 (2) by deleting "remedial action" in both places where it appears and inserting
11 "response action";
12 (d) by inserting at the end of Section 122 the following -
13 "(p) Retention of Funds.
14 "If, as part of any agreement under this Chapter, the President will be carrying
15 out any action and the parties will be paying amounts to the President, the President
16 may retain such amounts in interest bearing accounts, and use such amounts, together
17~ with accrued interest, for purposes of carrying out the agreement.
<:_'_
18 "(q) Notwithstanding the limitations on review in section 113(h), and except as
19 provided in subsection (g) of this section, a person whose claim for response costs or
20 contribution is limited as a result of contribution protection afforded by an
21 administrative settlement under this section may challenge the cost recovery
22 component of such settlement only by filing a complaint against the Administrator in
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63
1 the United States District Court within 60 days after such settlement becomes final.
2 Venue shall lie in the district in which the appropriate Regional Administrator has her
3 principal office. Any review of an administrative settlement shall be limited to the
4 administrative record, and the settlement shall be upheld unless the objecting party
5 can demonstrate on that record that the decision of the President to enter into the
6 amdinistrative settlement was arbitrary, capricious, or otherwise not in accordance
7 with law.".
8 (e) by deleting subsection (f)(l) and inserting in lieu thereof
9 "(1) FINAL COVENANTS.-The President shall offer potentially responsible
10 parties who enter into settlement agreements otherwise acceptable to the United
11 States a final covenant not to sue concerning any liability to the United States under
12 this Act, including a covenant with respect to future liability, for response actions or
13 response costs, provided that
14 "(A) The settling party agrees to perform, or there are other adequate
15 assurances of the performance of, a final remedial action for the release or
16 threat of release that is the subject of the settlement;
'17- "(B) The settlement agreement has been reached prior to the
*..
18 commencement of litigation jtgainst the settling party under section 106 or 107
19 of this Act with respect to this facility;
20 "(C) The settling party waives all contribution rights against other
21 potentially responsible parties at the facility; and
22 "(D) The settling party pays premium that compensates for the risks of
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64
1 remedy failure; future liability resulting from unknown conditions;
2 unanticipated increases in the cost of any uncompleted response action, unless
3 the settling party is performing the response action; and the United States'
4 litigation risk with respect to persons who have not resolved their liability to
5 the United States under this Act, unless all parties have settled their liability to
6 the United States, or the settlement covers 100 percent of the United States'
7 response costs. UK; President shall have sole discretion to determine the
8 appropriate amount of any such premium, and such determinations are
9 committed to the President's discretion. The President has discretion to waive
10 or reduce the premium payment for persons who demonstrate an inability to
11 pay such a premium.
12 "(2) DISCRETIONARY COVENANTS.-For all other settlements under this
13 title, the President may, in his discretion, provide any person with a covenant not to
14 sue concerning any liability to the United States under this title, if the covenant not to
IS sue is in the public interest. The President may include any conditions in such
16 covenant not to sue, including but not limited to the additional condition referred to in
17. paragraph (5) of this subsection. In determining whether such conditions or covenants
**'.
18 are in the public interest, the President shall consider the effectiveness and reliability
19 of the response action, the nature of the risks remaining at the facility, the strength of
20 evidence, the likelihood of cost recovery, the reliability of any response action or
21 actions to restore, replace or acquire the equivalent of injured natural resources, and
22 any other factors relevant to the protection of human health, welfare, and the
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65
1 environment.";
2 (0 by striking out the word "remedial", wherever it appears in paragraph (f)(2), and
3 inserting the word "response";
4 (g) by deleting paragraphs (f)(3) and (0(4);
5 (h) by redesignating existing paragraphs (f)(2), (f)(S) and (f)(6) as paragraphs (f)(3),
6 (f)(4), and (f)(5), respectively;
7 (i) in redesignated subparagraph (f)(5)(A) --
8 (1) by striking out the word "remedial", and inserting in lieu thereof the word
9 "response";
0 (2) by deleting "paragraph (2)" in the first clause of the first sentence and
11 inserting "paragraph (1) or (3)" in lieu thereof; and
12 (3) by deleting "de minimis settlements" and inserting "dfi minimis and other
13 expedited settlements pursuant to subsection (g) of this section" in lieu thereof;
14 (4) by striking the phrase "the President certifies under paragraph (3) that
15 remedial action has been completed at the facility concerned", and inserting in lieu
16 thereof the phrase "that the response action that is the subject of the settlement
17 agreement is selected". f
18 (j) ty amending redesignated subsection~(f)(5)((B) -
19 (1) by striking "In extraordinary circumstances, the" and inserting the word
20 "The";
21 (2) by striking the phrase "those referred to in paragraph (4) and";
22 (3) by inserting "the agreement containing the covenant not to sue provides for
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1 payment of a premium to address possible remedy failure or any releases that may
2 result from unknown conditions, and" before the phrase "the other terms"; and
3 (4) by inserting at the end the following -
4 "The President may, in his discretion, waive or reduce the premium
5 payment for persons who demonstrate an inability to pay such a premium."
6 OO by deleting paragraph (g)(l)(A) and inserting in lieu thereof -
7 "(g) EXPEDITED FINAL SETTLEMENT.--
8 "(1) Parties Eligible For Expedited Settlement.-Wherever practicable
9 and in the public interest, and as provided in section 122a of this title, the
10 President will as promptly as possible offer to reach a final administrative or
/
11 judicial settlement with potentially responsible parties who, in the judgment of
12 the President, meet one or more of the following conditions for eligibility for
13 an expedited settlement:
14 "(A) the potentially responsible party's individual contribution of
15 hazardous substances at the facility is djg minimis. The contribution of
16 hazardous substance to a facility by a potentially responsible party is 4s
17 . mjnjjnjj if:
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1 "(0 the potentially responsible party's volumetric
2 contribution of materials containing hazardous substances is
3 minimal in comparison to the total volumetric contributions at
4 the facility; such individual contribution is presumed to be
5 minimal if it is one percent or less of the total volumetric
6 contribution at the facility, unless the Administrator identifies a
7 different threshold based on site-specific factors; and
8 "(ii) the potentially responsible party's hazardous
9 substances do not present toxic or other hazardous effects that
0 are significantly greater than those of other hazardous substances
11 at the facility; or"
12 (1) by inserting the following after subsection (g)(l)(B) -
13 "(Q The potentially responsible party's liability is based solely on
14 subsection 107(a)(3) or 107(a)(4) of this title, and the arrangement for
15 disposal, treatment, or transport for disposal or treatment, or the acceptance
16 for transport for disposal or treatment, involved only municipal solid waste
17 (MSW) or sewage sludge as defined in section 101(41) or 101(44),
18 respectively, of this Act. The Administrator may offer to settle the liability of
19 generators and transporters of MSW or sewage sludge whose liability is
20 limited pursuant to section 107(a)(5)(A) of this tide for up to 10 percent of the
21 total response costs at the facility; or
22 "(D) The potentially responsible party is a small business or a
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1 municipality and has demonstrated to the United States a limited ability to pay
2 re
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1 establish an inability to pay through an affirmative showing that such
2 payment of its liability under this Act would either (I) create a
3 substantial demonstrable risk that the municipality would default on
4 existing debt obligations, be forced into bankruptcy, be forced to
5 dissolve, or be forced to make budgetary cutbacks that would
6 substantially reduce current levels of protection of public health and
7 safety, or (II) necessitate a violation of legal requirements or
8 limitations of general applicability concerning the assumption and
9 maintenance of fiscal municipal obligations."
10 (m) by deleting paragraphs (2) and (3) of subsection (g) and inserting in lieu
11 thereof --
12 "(2) The determination of whether a party is eligible for an expedited
13 settlement shall be made on the basis of information available to the President at the
14 time the settlement is negotiated. Such determination, and the settlement, are
*
15 committed to the President's unreviewable discretion. If the President determines not
16 to apply these provisions for expedited settlements at a facility, the basis for that
"17- determination must be explained in writing."
<-..%
18 "(3) Additional factors relevant to municipalities.-In any settlement with a
19 municipality pursuant to this title, the President may take additional equitable factors
20 into account in determining an appropriate settlement amount, including, without
21 limitation, the limited resources available to that party, and any in-kind services that
22 the party may provide to support the response action at the facility. In considering
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1 the value of in-kind services, the President shall consider the fair market value of
2 those services."
3 (n) by striking in paragraph (g)(4) "$500,000" and inserting "$2,000,000".
4 (o) by striking paragraph (g)(5) and redesignating paragraph (g)(6) as (g)(S).
5 (p) by amending paragraph (h) by striking -
6 (1) the title, and inserting the phrase "Authority to settle claims for penalties,
7 punitive damages and cost recovery"; and
8 (2) by striking out the phrase "settlement authority".
9 (q) by amending paragraph (h)(l) -
10 (1) before the phrase "costs incurred" by inserting the phrase "past and
11 future";
12 (2) before the phrase "by the United States Government" by inserting the
13 phrase "or that may be incurred";
14 (3) by inserting after the phrase "if the claim has not been referred to the
IS Department of Justice for further action", the following: "The head of any department
16 or agency with the authority to seek, or to request the Attorney General to seek, civil
17 or punitive damages under this Act may settle claims for any such penalties or
18 damages which may otherwise be assessed in civil administrative or judicial
19 proceedings"; and by striking out "$500,000", and inserting in lieu thereof
20 "$2,000,000".
21 (r) by striking paragraph (h)(4).
22
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1 SEC. 409. ALLOCATION PROCEDURES. -
2 The Act is amended by inserting following section 122 -
3 "SEC. 122a ALLOCATION AT MULTI-PARTY FACILITIES. --
4 "(a) SCOPE.--
5 "(1) Except as provided in paragraph (3) of this section, for each non-
6 federally owned facility listed on the National Priorities List involving two or
7 more potentially responsible parties, the Administrator shall:
8 "(A) initiate the allocation process established under this section
9 for any remedial action selected by the President after the date of
10 enactment of the Superfund Reform Act of 1994, and
11 "(B) initiate the allocation process established in subsections
12 ,(c)(2) through (d)(3) of this section for any remedial action selected by
13 the President prior to the date of enactment of the Superfund Reform
14 Act of 1994, when requested by any potentially responsible party who
15 has resolved its liability to the United States with respect to the
16 remedial action or is performing the remedial action pursuant to an
17 . order issued under section 106(a) of this title, to assist in allocating
18 shares among potentially responsible parties. The allocation performed
19 pursuant to this subsection shall not be construed to require:
20 "(i) payment of an orphan share pursuant to subsection
21 (e) of this section; or
22 "(ii) the conferral of reimbursement rights pursuant to
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1 subsection (h) of this section.
2 "(2) Except as provided in paragraph (3) of this section, the
3 Administrator may initiate the allocation process established under this section
4 with respect to any other facility involving two (2) or more potentially
5 responsible parties, as the Administrator deems appropriate.
6 "(3) The allocation process established under this section shall not
7 apply to any facility where --
g "(i) there has been a final settlement, decree or order that
9 determines all liability or allocated shares of all potentially
10 responsible parties with respect to the facility; or
11 "(ii) where response action is being carried out by a
12 State pursuant to referral or authorization under section 104(k)
13 of this title.
14 "(4) Nothing in this section limits or affects -
15 "(A) the Administrator's obligation to perform an allocation for
16 facilities thai: have been the subject of partial or expedited settlements;
17. "(B) the ability of a potentially responsible party at a facility to
«!.'._
18 resolve its liability to the United States or other parties at any time
tf ~
19 before initiation or completion of the allocation process; or
20 H(Q the validity, enforceability, finality or merits of any
21 judicial or administrative order, judgment or decree issued, signed,
22 lodged, or entered with respect to liability under this Act, or authorizes
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1 modification of any such order, judgment or decree.
2 "(b) MORATORIUM ON COMMENCEMENT OR CONTINUATION OF SUITS.--
3 "(1) No person may commence an action pursuant to section 107 of this Act
4 regarding a response action for which an allocation must be performed under
5 subsection (a)(l)(A) of this section, or for which the Administrator has initiated an
6 allocation under subsection (a)(l)(B) or (a)(2) of this section, until 60 days after
7 issuance of the allocator's report under subsection (d)(l) of this section.
8 "(2) If an action under section 107 of this Act regarding a response for which
9 an allocation is to be performed under this section is pending (A) upon date of
10 enactment of the Superfund Reform Act of 1994, or (B) upon initiation of an
11 allocation under subsection (a)(l)(B) or (a)(2) of this section, the action shall be
12 stayed until 60 days after the issuance of an allocator's report, unless the court
13 detennines that a stay will not result in a just and expeditious resolution of the action.
14 "(3) Any applicable limitations period with respect to actions subject to
15 paragraph (1) shall be tolled from the earlier of --
16 "(A) the date of listing of the facility on the National Priorities list; or
17 "(B) the commencement of the allocation process pursuant to this
y ~
18 section, until 120 days after the allocation report required by this section has
19 been provided to the parties to the allocation.
20 "(4) Nothing in this section shall in any way limit or affect the President's
21 authority to exercise the powers conferred by sections 103, 104, 105, 106, or 122 of
22 this title, or to commence an action where there is a contemporaneous filing of a
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1 judicial consent decree resolving a party's liability; or to file a proof of claim or take
2 other action in a proceeding under title 11 of the U.S. Code.
3 "(5) The procedures established in this section are intended to guide the
4 exercise of settlement authority by the United States, and shall not be construed to
5 diminish or affect the principles of retroactive, strict, joint and several liability under
6 this title.
7 "(c) COMMENCEMENT OF ALLOCATION. ~
8 "(1) Responsible party search.-At all facilities subject to this section, the
9 Administrator shall, as soon as practicable bu* not 'at~r *han 60 days after the earlier
10 of the commencement of the remedial investigation or the listing of the facility on the
11 National Priorities List, initiate a search for potentially responsible parties, using its
12 authorities under section 104 of this title.
13 "(2) Notice to Parties.-As scon as practicable after receipt of sufficient
14 information, but ""| more than eighteen (18) months after commencement of the
15 remedial investigation, the Administrator shall:
16 "(A) notify those potentially responsible parties who will be assigned
IT shares in the allocation process and notify the public, in accordance with
«*.
18 section 117(d) of this title, of the list of potentially responsible parties
19 preliminarily identified by the Administrator to be assigned shares in the
20 allocation process; and
21 "(B) provide the notified potentially responsible parties with a list of
22 neutral parties who are not employees of the United States and who the
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1 Administrator determines, in his or her sole discretion, are qualified to
2 perform an allocation at the facility.
3 "(3) Selection of Allocator - The Administrator shall thereafter:
4 "(A) acknowledge the parties' selection of an allocator from the list, or
5 select an allocator from the list provided to the parties if the parties cannot
6 agree on a selection within 30 days of the notice;
7 "(B) contract with the selected allocator for the provision of allocation
8 services; and
9 "(C) make available all responses to information requests, as well as
10 other relevant information concerning the facility and potentially responsible
11 parties, to the parties and to the allocator within 30 days of the appointment of
12 the allocator. The Administrator shall not make available any privileged or
13 confidential information, except as otherwise authorized by law.
14 "(4) Proposed addition of parties.--
15 "(A) For 60 days after information has been made available pursuant
16 to paragraph 3(Q, the parties identified by the Administrator and members of
17 the affected community shall have the opportunity to identify and propose
18 additional potentially responsible parties or otherwise provide information
19 relevant to the facility or such potentially responsible parties. This period may
20 be extended by the Administrator for an additional 30 days upon request of a
21 party.
22 "(B) Within 30 days after the end of the period specified in paragraph
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1 (A) for identification of additional parties, the Administrator shall issue a final
2 list of parties subject to the allocation process, hereinafter the "allocation
3 parties". The Administrator shall include in the list of allocation parties those
4 parties identified pursuant to paragn^ph (A) in the allocation process unless the
5 Administrator determines and explains in writing that there is not a sufficient
6 basis in law or fact to take enforcement action with respect to those parties
7 under this title, or that they have entered into an expedited settlement under
8 section 122(g). The Administrator's determination is to be based on the
9 information available at the time of the determination and is committed to the
10 Administrator's unreviewable discretion.
11 "(S) Role of federal agencies. - Federal departments, agencies or
12 instrumentalities that are identified as potentially responsible parties shall be subject
13 to, and be entitled to the benefits of, the allocation process provided by this section to
14 the same extent as any other party.
15 "(6) Representation of the United States. - The Administrator and the
16 Attorney General shall be entitled to review all documents and participate in any
IT phase of the allocation proceeding.
18 "(d) ALLOCATION DETERMINATION.--
19 "(1) Settlement and Allocation Report. - Following issuance of the list of
20 allocation parties, the allocator may convene the allocation parties for the purpose of
21 facilitating agreement concerning their shares. If the allocation parties do not agree to
22 a negotiated allocation of shares, the allocator shall prepare a written report, with a
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1 nonbinding, equitable allocation of percentage shares for the facility, and provide such
2 report to the allocation parties and the Administrator.
3 "(2) Information Requests. - To assist in the allocation of shares, the
4 allocator may request information from the allocation parties, and may make
5 additional requests for information at the request of any allocation party. The
6 allocator may request the Administrator to exercise any information-gathering
7 authority under this title where necessary to assist in determining the allocation of
8 shares.
9 "(3) Factors in the allocation. - Unless the allocation parties agree to a
10 negotiated allocation, the allocator shall prepare a nonbinding, equitable allocation of
11 percentage shares for the facility based on the following factors:
12 "(A) the amount of hazardous substances contributed by each allocation
13 party;
14 "(B) the degree of toxicity of hazardous substances contributed by each
15 allocation party;
16 "(Q the mobility of hazardous substances contributed by each
K7 allocation party;
*_'.t
18 "(D) the degree of involvement of each allocation party in the
19 generation, transportation, treatment, storage, or disposal of the hazardous
20 substance;
21 "(E) the degree of care exercised by each allocation party with respect
22 to the hazardous substance, taking into account the characteristics of the
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1 hazardous substance:;
2 "(F) the cooperation of each allocation party in contributing to the
3 response action and in providing complete and timely information during the
4 allocation process; and
5 "(G) such other factors that the Administrator determines are
6 appropriate by published regulation or guidance, including guidance with
7 respect to the identification of orphan shares pursuant to paragraph (3) of this
8 subsection.
9 "(4) Identification of orphan shares.-The allocator may determine that a
10 percentage share for the facility is specifically attributable to an "orphan share". The
11 orphan share may only consist of the following:
12 "(A) shares attributable to hazardous substances that the allocator
13 determines, on the basis of information presented, to be specifically
14 attributable to identified but insolvent or defunct responsible parties who are
15 not affiliated with any allocation party;
16 "(B) the difference between the aggregate shares that the allocator
IX determines, on the basis of the information presented, are specifically
<-.
18 attributable to contributors of municipal solid waste subject to the limitations in
*/ ~
19 section 107(a)(5)(D) of this title, and the share actually assumed by those
20 parties in any settlements with the United States pursuant to subsection 122(g)
21 of this title, including the fair market value of in-kind services provided by a
22 municipality; and
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1 "(C) the difference between the aggregate share that the allocator
2 determines, on the basis of information presented, is specifically attributable to
3 panics with a limited ability to pay response costs and the share actually
4 assumed by those parties in any settlements with the United States pursuant to
5 subsection 122(g) of this title.
6 The orphan share shall not include shares attributable to hazardous substances that the
7 allocator cannot attribute to any identified party. Such shares shall be distributed
8 among the allocation parties.
9 "(e) FUNDING OF ORPHAN SHARES.--
10 "From funds available in the Fund in any given fiscal year, and without further
11 appropriation action, the President shall make reimbursements from the Fund, to
12 eligible parties for costs incurred and equitably attributable to orphan shares
13 determined pursuant to this section, provided that Fund financing of orphan shares
14 shall not exceed $*VOO million in any fiscal year. Reimbursements made under this
15 subsection shall be subject to such terms and conditions as the President may
16 prescribe.
IT "(f) TIMING.-
tf- - -.,
18 "The allocator shall provide the report-required by subsection (d)(l) of this section to
19 the allocation parties and the Administrator within 180 days of the issuance of the list
20 of parties pursuant to subsection (c)(4)(B) of this section. Upon request, for good
21 cause shown, the Administrator may grant the allocator additional time to complete
22 the allocation, not to exceed 90 days.
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1 "(g) SETTLEMENT FOLLOWING ALLOCATION. --
2 "(1) Obligations of the United States. - The President will accept a timely
3 offer of settlement from a party based on the share determined by the allocator, if it
4 includes appropriate premia and other terms and conditions of settlement, unless the
5 Administrator, with the concurrence of the Attorney General of the United States,
6 determines that a settlement based on the allocator's determinadons would not be fair,
7 reasonable, and in the public interest. The Administrator and the Attorney General
8 shall seek to make any such determination within 60 days from the date of issuance of
9 the allocator's report. The determinations of the Administrator and the Attorney
10 General shall not be judicially reviewable.
11 "(2) If the Administrator and the Attorney General determine not to settle on
12 the basis of the allocation, they shall provide the allocation parties and members of
13 the affected community with a written explanation of the Administrator's
14 determination. If the Administrator and the Attorney General make such a
15 determination, the parties who are willing to settle on the basis of the allocation are
16 entitled to a consultation with an official appointed by the President, to present any
17 objections to the determination, within 60 days after the determination.
. ^_
18 "(3) Settlements based on allocated shares shall include:
19 "(A) a waiver of contribution rights against all parties who are
20 potentially responsible parties for the response action;
21 "(B) covenants not to sue, consistent with the provisions of section
22 122(f) of this title, and provisions regarding performance or adequate
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1 assurance of performance of response actions addressed in the settlement;
2 "(C) a premium that compensates for the United States' litigation risk
3 with respect to potentially responsible parties who have not resolved their
4 liability to the United States, except that no such premium shall apply if all
5 parties settle or the settlement covers one 100% of response costs;
6 "(D) contribution protection, consistent with sections 113(f) and 122(g)
7 of this title, regarding matters addressed in the settlement. Such settlement
8 does not discharge any of the other potentially responsible parties unless its
9 terms so provide, but it reduces the potential liability of the others by the
10 amount of the settlement; and
11 "(E) provisions through which the settling parties shall receive
12 reimbursement from the Fund for any response costs incurred by such parties
13 in excess of the aggregate of their allocated share and any premia required by
14 the settlement. Such right to reimbursement shall not be contingent on the
15 United States' recovery of response costs from any responsible person not a
16 party to any settlement with the United States.
17 "(4) The President shall report annually to Congress on the administration of
18 the allocation scheme, and provide information comparing allocation results
19 with actual settlements at multiparty facilities.
20 "(5) The provisions of this section shall not apply to any offer of settlement
21 made after commencement of litigation by the United States against the
22 offering party under section 107 of this title.
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1 "(h) AUTHORIZATION OF REIMBURSEMENT. --
2 "In any settlement in which a party agrees to perform response work in excess
3 of its share, the Administrator shall have authority in entering the settlement to confer
4 a right of reimbursement on the settling pax:y pursuant to such procedures as the
5 Administrator may prescribe.
6 "(i) POST-SETTLEMENT LITIGATION.--
7 "(1) General.-The United States may commence an action under section 107
8 against any person who has not resolved its liability to the United States following
9 allocation, on or after 60 days following issuance of the allocator's report. In any
10 such action, the potentially responsible parties shall be liable for all unrecovered
11 response costs, including any federally-funded orphan share identified in accordance
12 with subsection (d)(4). Defendants in any such action may implead any allocation
13 party who did not resolve its liability to the United States. The Administrator and the
14 Attorney General shall issue guidelines to ensure that the relief sought against ds
15 minimis parties under principles of joint and several liability will not be grossly
16 disproportionate to their contribution to the facility. The application of such
17 guidelines is committed to the discretion of the Administrator and the Attorney
*/ ""
18 General.
19 "(2) In commencing any action under section 107 following allocation, the
20 Attorney General must certify, in the complaint, that the United States has been
21 unable to reach a settlement that would be in the best interests of the United States.
22 "(3) Admissibility of allocator's report. -- The allocator's report shall not be
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1 admissible in any court with respect to a claim brought by or against the United
2 States, except in its capacity as a nonsettling potentially responsible party, or for the
3 determination of liability. The allocator's report, subject to the rules and discretion of
4 the court, may be admissible solely for the purpose of assisting the court in making
5 an equitable allocation of response costs among the relative shares of nonsettling
6 liable parties.
7 "(4) Other authorities unaffected. ~ Nothing in this section limits or in any
8 way affects the exercise of the President's authority pursuant to sections 103, 104,
9 105, or 106.
10 "(5) Costs. --
11 "(A) The costs of implementing the allocation procedure set forth in
12 this section, including reasonable fees and expenses of the allocator, shall be
13 considered necessary costs of response.
14 "(B) The costs attributable to any funding of orphan shares identified
15 by the allocator pursuant to subsection (d)(4) also shall be considered
16 necessary costs of response, and shall be recoverable from liable parties who
~17 do not resolve their liability on the basis of the allocation.
*v..t
18 "(6) Rejection of share determination. - In any action by the United States
19 under this title, if the United States has rejected an offer of settlement that is
20 consistent with subsections (g)(l) and (g)(3) of this section and was presented to the
21 United States prior to the commencement of the action, the offerer shall be entitled to
22 recover from the United States the offerer's reasonable costs of defending the action
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1 after the making of the offer, including reasonable attorneys' fees, if the ultimate
2 resolution of liability or allocation of costs with respect to the offerer, taking into
3 account all settlements and reimbursements with respect to the facility other than
4 those attributable to insurance or indemnification, is as or more favorable to the
5 offerer than the offer based on the allocation.
6 "0) PROCEDURES.-
7 "The Administrator shall further define the procedures of this section by
8 regulation or guidance, after consultation with the Attorney General.".
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1
1 TITLE V - REMEDY SELECTION AND CLEANUP STANDARDS
2 . - .
3 SEC. 501. PURPOSES AND OBJECTIVES.
4 The purposes and objectives of this title are to -
5 (a) ensure that remedial actions under the Act are protective of human health, and the
6 environment;
7 (b) provide consistent and equivalent protection to all communities affected by
8 facilities subject to remedial action; and,
9 (c) ensure that the national goals, national generic cleanup levels, and the national risk
10 protocol required by this title are developed through a process based on substantial public
11 input and, where appropriate, on consensual decision-making.
12
13 SEC. 502. CLEANUP STANDARDS AND LEVELS.
14 Section 121(d)(l) - (2)(Q(i) of the Act (42 U.S.C. 962l(d)) is amended to read as
15 follows -
16 "(d) DEGREE OF CLEANUP. -- ±.
17 "(1) PROTECTION OF HUlvIAN HEALTH AND THE ENVIRONMENT. --
18 A remedial action selected under this section or otherwise required or agreed to by
19 the President under this Act shall be protective of human health and the environment.
20 In order to provide consistent protection to all communities, the Administrator shall
21 promulgate national goals to be applied at all facilities subject to remedial action
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1 under this Act.
2 "(2) GENERIC CLEANUP LEVELS. - The Administrator shall promulgate,
3 as appropriate, national generic cleanup levels for specific hazardous substances,
4 pollutants, or contaminants, based on the national goals established in paragraph (1).
5 A cleanup level shall -
6 "(A) reflect reasonably anticipated future land uses,
7 "(B) reflect other variables which can be easily measured at a facility
8 and whose effects are scientifically well-understood to vary on a site-specific
9 basis, and
10 , "(C) represent concentration levels below which a response action is
11 not required.
12 "(3) SITE-SPECIFIC METHODS TO ESTABLISH CLEANUP LEVELS. --
13 Notwithstanding the promulgation of national generic cleanup levels under subsection
14 (d)(2) and nationally-approved generic remedies under subsection (b)(4) of this
15 section, the Administrator may, as appropriate, rely on a site-specific risk assessment
16 to determine the proper level of cleanup at a facility, based on the national goals
17 established in paragraph (1) and the reasonably anticipated future land uses at the
*/ ""
18 facility. This may occur if a national generic cleanup level has not been developed or
19 to account for particular characteristics of a facility or its surroundings. In
20 establishing site-specific cleanup levels, the President shall consider the views of the
21 affected community in accordance with section 117 of this Act.
22 "(4) RISK ASSESSMENT. - The Administrator shall promulgate a national
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1 risk protocol for conducting risk assessments based on realistic assumptions. After
2 promulgation, risk assessments underlying the degree of cleanup and remedy selection
3 processes shall use the national risk protocol.
4 "(5) FEDERAL AND STATE LAWS.--
5 "(A) A remedial action shall be required to comply with the
6 substantive requirements of -
7 "(i) any standard, requirement, criterion, or limitation under
8 any federal environmental or facility siting law that the President
9 determines is suitable for application to the remedial action at the
10 facility; and
11 "(ii) any promulgated standard, requirement, criterion, or
12 limitation under any state environmental law specifically addressing
13 remedial action that is adopted for the purpose of protecting human
14 health or the environment with the best available scientific evidence
15 through a public process where such a law is more stringent than any
16 such federal cleanup standard, requirement, criterion, or limitation, or
13- the cleanup level determined in accordance with the requirements of
'--.
18 this section.
19 "(B) Procedural requirements of federal and state standards,
20 requirements, criteria, or limitations, including but not limited to permitting
21 requirements, shall not apply to response actions conducted on-site. In
22 addition, compliance with such laws shall not be required with respect to
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1 return, replacement, or redisposal of contaminated media or residuals of
2 contaminated media into the same medium in or very near existing areas of
3 contamination on-site.
4 "(C) The President may select a remedial action meeting the
5 requirements of paragraph (1) that does not attain a level or standard of control
6 at least equivalent ito the federal or State standards, requirements, criteria, or
7 limitations as required by paragraph (A), if the President finds that-
8 "(i) the remedial action selected is only part of a total remedial
9 action that will attain such level ~r ,ta.id: rd of control when completed;
10 "(ii) compliance with such requirement at that facility will
11 result in greater risk to human health and the environment than
12 alternative options;
13 "(iii) compliance with such requirements is technically
14 ineradicable from an engineering perspective;
15 "(iv) a generic remedy under section (b)(4) has been selected
16 for the facility;
17 "(v) the remedial action selected will attain a standard of
*/
18 performance that is equivalent to that required under the standard,
19 requirement, criterion, or limitation identified under (A)(i) and (A)(u)
20 through use of another approach;
21 "(vi) with respect to a State standard, requirement, criterion, or
22 limitation, the State has not consistently applied (or demonstrated the
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1 intention to consistently apply) the standard, requirement, criterion, or
2 limitation in similar circumstances at other remedial actions within the
3 State; or
4 "(vii) in the case of a remedial action to be undertaken solely
5 under section 104 using the Fund, a selection of a remedial action that
6 attains such level or standard of control will not provide a balance
7 between the need for protection of public health and welfare and the
8 environment at the facility under consideration, and the availability of
9 amounts from the Fund to respond to other facilities which present or
10 may present a threat to public health or welfare or the environment,
11 taking into consideration the relative immediacy of such threat.
12 The President shall publish such findings, together with an explanation and
13 appropriate documentation.".
14
15 SEC. 503. REMEDY SELECTION.
16 Section 12l(b) of the Act (42 U.S.C. 962l(b) is amended to read as follows -
17 "(b) GENERAL RULES. -
*..
18 "(1) SELECTION OF PROTECTIVE REMEDIES. -- Remedies selected at
19 individual facilities shall be protective of human health and the environment.
20 Whether a response action requires remediation through treatment, containment, a
21 combination of treatment and containment, or other means, shall be determined
22 through the evaluation of remedial alternatives.
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1 "(2) LAND USE. -- In selecting a remedy, the President shall take into
2 account the reasonably anticipated future uses of land at a facility as required by this
3 Act.
4 "(3) APPROPRIATE REMEDIAL ACTION. »
5 "(A) The President shall identify and select an appropriate remedy
6 utilizing treatment, containment, other remedial measures, or any combination
7 thereof, that is protective of human health and the environment and achieves
8 the degree of cleanup determined under section 121(d), taking into account the
9 following factors -
10 "(i) the effectiveness of the remedy;
11 "(ii) the long-term reliability of the remedy, that is, its
12 capability to achieve long-term protection of human health and the
13 environment;
14 "(iii) any risk posed by the remedy to the affected community,
15 to those engaged in the cleanup effort, and to the environment:
16 "(iv) the acceptability of the remedy to the arTecied community;
17 and
18 "(v) the reasonableness of the cost of the remedy in relation to
19 the preceding factors (i) through (iv).
20 "(B) INNOVATIVE REMEDIES. - If an otherwise appropriate
21 treatment remedy is available only at a disproportionate cost and the President
22 determines that an appropriate treatment remedy is likely to become available
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1 within a reasonable period of time, the President may select an interim
2 containment remedy. A selected interim containment remedy shall include
3 adequate monitoring to ensure the continued integrity of the containment
4 system. If an appropriate treatment remedy becomes available within that
5 period of time, that remedy shall be required.
6 "(C) HOT SPOTS. - In evaluating a facility for a permanent
7 containment remedy, if the President determines, based on standard site
8 investigation, that a discrete area within a facility is a "hot spot" (as defined in
9 this paragraph), the President shall select a remedy for the hot spot with a
10 preference for treatment, unless he determines, based on treatability studies
11 and other information, that no treatment technology exists or such technology
12 is only available at a disproportionate cost. In such instances the President
13 shall select an interim containment remedy for a hot spot subject to adequate
14 monitoring to ensure its continued integrity and shall review the interim
15 containment remedy within five years to determine whether an appropriate
16 treatment remedy for the hot spot is available. For purposes of this paragraph,
17 the term "hot spot" means a discrete area within a facility that contains
'-'.
18 huudous substances that aie highly toxic or highly mobile, cannot be reliably
19 contained, and present a significant risk to human health or the environment
20 should exposure occur.
21 "(4) GENERIC REMEDIES. - In order to streamline the remedy selection
22 process, and to facilitate rapid voluntary action, the President shall establish, taking
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1 into account the factors enumerated in subsection (b)(3)(A), cost-effective generic
2 remedies for categories of facilities, and expedited procedures that include community
3 involvement for selecting generic remedies at an individual facility. To be eligible for
4 selection at a facility, a generic remedy shall be protective of human health and the
5 environment at that facility. When appropriate, the President may select a generic
6 remedy without considering alternative remedies.".
7
8 SEC. 504. MISCELLANEOUS AMENDMENTS TO SECTION 121.
9 (a) Section 121(c) of the Act (42 U.S.C. § 962l(c)) is amended by striking out the
10 word "initiation", and inserting in lieu thereof the phrase "completion of all physical on-site
11 construction".
12 (b) Section 121(d) of the Act is further amended by -
13 (1) redesignating paragraph (2)(Q(ii) as paragraph "(6)(A)";
14 (2) redesignating paragraph (2)(Q(iii) as paragraph "(6)(B)";
15 (3) striking "clause:! (iii) and (iv)" in redesignated paragraph (6)(A) and
16 inserting "subparagrph (B)";
17 £»JA strildng paragraph (2)(C)Ov);
18 ; 'T(5) redesignating paragraph^^fas paragraph "(7)" and amending it to read as
19 follows -
20 "(7) In the case of any removal or remedial action involving the
21 transfer of any hazardous substance or pollutant or contaminant off-site, such
22 hazardous substance or pollutant or contaminant shall be transferred to a
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1 facility which is authorized under applicable Federal and state law to receive
2 such hazardous substance or pollutant or contaminant and is in compliance
3 with such applicable Federal and state law. Such substance or pollutant or
4 contaminant may be transferred to a land disposal facility permitted under
5 Subtitle C of the Solid Waste Disposal Act only if the President determines
6 that both of the following requirements are met -
7 "(A) The unit to which the hazardous substance or pollutant or
8 contaminant is transferred is not releasing any hazardous waste, or
9 constituent thereof, into the groundwater or surface water or soil.
10 "(B) All such releases from other units at the facility are being
11 controlled by a corrective action program approved by the
12 Administrator under subtitle C of the Solid Waste Disposal Act.
13 The President shall notify the owner or operator of such facility of
14 determinations made under this paragraph."; and
15 (6) striking paragraph (4).
16 (c). Section 121(e) of the Act (42 U.S.C. 962l(e)) is amended by --
17 (1) in paragraph (1) inserting'in the first sentence "or permit application"
' ?' ~
18 before "shall be required"; and by adding at the end thereof the following:
19 "Furthermore, no Federal, State or local permit or permit application shall be
20 required for on-site or off-site activities conducted under section 311(b)."; and
21 (2) striking paragraph (2).
22 (d) Section 121(0 of the Act (42 U.S.C. 9621(0) is amended by adding after
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1 paragraph (3) (as amended by this Act) the following new paragraph --.
2 "(4) A State may enforce only those Federal or State legally applicable
3 standards, requirements, criterion, or limitations to which the Administrator has
4 determined the remedial action is required to conform under this Act. Where the
5 parties agree, the consent decree may provide for administrative enforcement. Each
6 consent decree shall also contain stipulated penalties for violations of the decree in an
7 amount not to exceed $25,000 per day. Such stipulated penalties shall not be
8 construed to impair or affect the authority of the court to order compliance with the
9 specific terms of any such decree.".
10
11
12 SEC. 505. RESPONSE AUTHORITIES.
13 (a) Section 104{b)(l) of the Act (42 U.S.C. § 9604(b)(l)) is amended by --
14 (1) inserting "actions," before "studies";
15 (2) striking ", to recover the costs thereof, and" and inserting "or"; and
16 (3) striking the "." after "Act" and inserting "and shall be entitled to recover
17 the com thereof.".
18 (b) Section 1040) of the Act (42 U.S.C. § 96040)) is amended by --
19 (1) in paragraph (1) by striking "remedial", and inserting "response";
20 (2) striking paragraph (2);
21 (3) redesignating paragraph (3) as paragraph "(2)" and striking "estate" and
22 inserting "property"; and
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1 (4) by inserting after paragraph (2) (as redesignated by this Act) the
2 following new paragraph ~
3 "(4) DISPOSAL AUTHORITY. --The President is authorized to
4 dispose of any interest in real property acquired for use by the Administrator
5 under this subsection by sale, exchange, donation or otherwise and any such
6 interest in real property shall not be subject to any of the provisions of Section
7 120 except the notice provisions of Section 120(h)(l). Any moneys received
8 by the President pursuant to this subparagraph shall be deposited in the
9 Fund.".
10
11 SEC. 506. REMOVAL ACTIONS.
12 (a) Section 104(c)(l) of the Act is amended in subparagraph (C) as follows -
13 (1) strike "$2,000,000* and insert "$6,000,000";
14 (2) strike "12 months" and insert "three years"; and
15 (3) strike "consistent with the remedial action to be taken" and insert "not
16 inconsistent with any remedial action that has been selected or is anticipated at the
17 tim»of the removal action.";
18 (b) SMtim 117 of the Act is amendofby adding after subsection (k) (as added by this
19 Act) the following new subsection --
20 "(1) REMOVAL ACTIONS.-- Whenever the planning period for a removal
21 action is expected to be greater than six months, the Administrator shall provide the
22 community with notice of the anticipated removal action and a public comment period
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1 of no less than thirty days.".
2
3 SEC. 507. TRANSITION.
4 The provisions of this title shall become effective on the date of enactment of this Act
5 and shall apply to all response actions for which a Record of Decision or other decision
6 document is signed after the date of enactment of the Act.
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1
2 TITLE VI - MISCELLANEOUS
3 . .'...-
4 SEC. 601. INTERAGENCY AGREEMENTS AT MIXED OWNERSHIP AND
5 MIXED RESPONSIBILITY FACILITIES.
6 Section 120(e) of the Act (42 U.S.C. 9620(e)) is amended by -
7 (a) inserting after paragraph (3) the following new paragraph -
8 "(4) A provision allowing for the particpation of other responsible
9 parties in the response action.; and
10 (b) inserting after paragraph (6) the following new paragraphs --
11 "(7) ' EXCEPTION TO REQUIRED ACTION.-No department, agency, and
12 instrumentality of the United States that owns or operates a facility over which the
13 department, agency, or instrumentality exercised no regulatory or other control over
14 activities that directly or indirectly resulted in a release or threat of a release of a
IS hazardous substance shall be subject to the requirements of paragraphs (1) through (6)
16 except (5XF) and (G) of this subsection if the department, agency, or instrumentality
17 desperates to the satisfaction of the Administrator that --
18 ^ "(A) no department," agency, or instrumentality was the primary or sole
19 source or cause of a release or threat of release of a hazardous substance at the
20 facility;
21 "(B) the activities either directly or indirectly resulting in a release or
22 threat of a release of a hazardous substance at the facility were pursuant to a
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1 statutory authority and occurred prior to 1976; and
2 "(C) the person or persons primarily or solely responsible for such
3 release or threat of release are financially viable, and capable of performing or
4 financing the response action at the facility.
5 In the event the above conditions are not met, the applicable terms of section 120(e)
6 apply to the department, agency, or instrumentality of the United States at the facility.
7 Upon determination by the Administrator that a department, agency, or
8 instrumentality qualifies for the exception provided by this paragraph, the head of
9 such department, agency, or instrumentality may exercise enforcement authority
10 pursuant under section 106 (in addition to any other delegated authorities). To the
11 extent a person who has been issued an order under the authority of this paragraph
12 seeks reimbursement under the provisions of section 106, the relevant department,
13 agency, or instrumentality,, and not the Fund, shall be the source of any appropriate
14 reimbursement. If the Administrator determines that the relevant department, agency,
15 or instrumentality has failed to seek the performance of response actions by
16 responsible parties within 12 months after the facility has been listed on the National
17 Priorities List, the Administrator may void the exception provided by this paragraph
18 andfli applicable provisions or sectio'n 120(e) would apply to the department, agency
19 or instrumentality at the facility.
20
21 SEC. 602. TRANSFERS OF UNCONTAMINATED PROPERTY.
22 Section 120(h)(4)(A) of the Act (42 U.S.C. 9620(h)(4)(A)) is amended by striking the
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1 the words "stored for one year or more,".
2
3 SEC. 603. AGREEMENTS TO TRANSFER BY DEED.
4 Section 120(h) of the Act (42 U.S.C. 9520(h)) is amended by adding after
5 paragraph (5) the following new paragraph:
6 "(6) AGREEMENTS TO TRANSFER BY DEED. - Nothing in this
7 subsection shall be construed to prohibit the bead of the department, agency, or
8 instrumentality of the United States from entering into an agreement to transfer by
9 deed real property or facilities prior to the entering of such deed.".
10
11 SEC. 604. ALTERNATIVE OR INNOVATIVE TREATMENT TECHNOLOGIES.
12 Section 11 l(a) of the Act of 1980 is amended by adding after paragraph (6) the
13 following new paragraph ~
14 "(7) ALTERNATIVE OR INNOVATIVE TREATMENT TECHNOLOGIES. --
15 "(A) When a party potentially liable under this Act undertakes a
16 response action pursuant to an administrative order or consent decree, and
n employs an alternative or innovative technology that fails to achieve a level of
18 mponse required under this Act, the Administrator may use the Fund to
19 reimburse no more than fifty percent of response costs incurred by the
20 potentially liable party in taking other actions approved by the Administrator to
21 achieve these required levels of response. The Administrator shall issue
22 guidance on the procedures and criteria to be used in determining whether a
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1 remedial technology constitutes an alternative or innovative technology for
2 purposes of this subsection, and the appropriate level of funding for response
3 activities that are necessary to achieve a level of response required under this
4 Act. The Administrator shall review and update such guidance, as
5 appropriate.".
6
7 SEC. 605. DEFINITIONS.
8 Section 101 of the Act (42 U.S.C. 9601)) is amended by -
9 (a) in paragraph (1) striking the "." after "Act" and inserting "and includes
10 the cost of enforcement activities related thereto.";
11 (b) in paragraph (10)(H) striking "subject to" and inserting, "in compliance
12 with";.
13 (c) in paragraph (14)) inserting after "Congress" the phrase ", unless such
14 waste contains a substance that is listed under any other subparagraph of this
IS paragraph";
16 (d) in paragraph (20) by --
17 (1) in subparagraph (A) inserting after "similar means to" the phrase
18 "the United States (or any department, agency, or instrumentality thereof),
19 or";
20 (2) in subparagraph (D) by inserting -
21 (A) after "does not include" the phrase "the United States (or
22 any department, agency, or instrumentality thereof), or"; and,
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1 (B) before "any State" the phrase "any department, agency, or
2 instrumentality of the United States, or"; and
3 (3) in subparagraph (D) by striking "a" after "such" and inserting
4 "department, agency, or instrumentality of the United States, or";
5 (4) by adding after subparagraph (D) the following new
6 subparagraphs
7 "(E) The term "owner or operator" shall include a trust or
8 estate, but does not include a person who holds title to a vessel or
9 facility solely in the capacity as a fiduciary, provided that such person -
10
11 "(i) does not participate in the management of a vessel or
12 facility operations that result in a release or threat of release of
13 hazardous substances; and
14 "(ii) complies with such other requirements as the
s
15 Administrator may set forth by regulation.
16 "(F) The term "owner or operator" shall not include the United
17 States or any department, agency or instrumentality of the United States
* .
18 or a conservator or receiver appointed by a department, agency or
19 instrumentality of the United States, which acquired ownership or
20 control of a vessel or facility (or any right or interest therein) -
21 (i) in connection with the exercise of receivership or
22 conservatorship authority or the liquidation or winding up of the
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1 affairs of any entity subject to a receivership or conservatorship,
2 including any subsidiary thereof; or
3 (ii) in connection with the exercise of any seizure or
4 forfeiture authority; or
5 (iii) pursuant to an act of Congress specifying the
6 property to be acquired,
7 provided, that the United States, or conservator or receiver appointed
8 by the United States does not participate in the management of the
9 vessel or facility operations that result in a release or threat of release
10 of hazardous substances and complies with such other requirements as
11 the Administrator may set forth by regulation.";
12 (e) in paragraph (23) adding at the end of the paragraph the following -
13 "The terms 'remove' or 'removal' are not limited to emergency
14 situations and include actions to address future or potential exposures
15 and, provided such actions are consistent with the requirements of this
16 Act, actions obviating the need for a remedial action.";
17 .-&-(& in paragraph (25) striking "related thereto", and inserting "and oversight
18 actfdtti related thereto when sucfi activities are undertaken by the President.";
19 (g) in paragraph (29) striking the "." after "Act" and inserting ", except that
20 the term "hazardous substance" shall be substituted for the term "hazardous waste" in
21 the definitions of "disposal" and "treatment.";
22 (h) in paragraph (33) striking "; except that the", and inserting ". The";
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1 (i) adding after paragraph (38) the following new paragraphs --
2 "(39) BONA FIDE PROSPECTIVE PURCHASER. -- The term "bona
3 fide prospective purchaser" means a person who acquires ownership of a
4 facility after enactment of this provision, and who can establish by a
5 preponderance of the evidence that--
6 "(A) all active disposal of hazardous substances at the facility
7 occurred before that person acquired the facility;
8 "(B) the person conducted a site audit of the facility in
9 accordance with commercially reasonable and generally accepted
10 standards and practices. The Administrator shall have authority to
11 develop standards by guidance or regulation, or to designate standards
12 promulgated or developed by others, that satisfy this subparagraph. In
13 the case of property for residential or other similar use, a site
14 inspection and tide search that reveal no basis for further investigation
15 satisfy the requirements of this subparagraph;
16 "(Q the person provided all legally required notices with respect
17 -- to the discovery or release of any hazardous substances at the facility;
<_..
18 "(D) the person exercised due care with respect to hazardous
19 substances found at the facility and took reasonably necessary steps to
20 address any release or threat of release of hazardous substances and to
21 protect human health and the environment. The requirements of due
22 care and reasonably necessary steps with respect to hazardous
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1 substances discovered at the facility shall be conclusively established
2 where the person successfully completes a response action pursuant to a
3 State voluntary response program, as defined in section 127 of this
4 title; and
5 "(E) the person provides full cooperation, assistance, and
6 facility access to those responsible for response actions at the facility,
7 including the cooperation and access necessary for the installation,
8 integrity, operation, and maintenance of any complete or partial
9 response action at the facility; and
10 "(F) the person is not affiliated with any other person liable for
11 response costs at the facility, through any direct or indirect familial
12 relationship, or any contractual, corporate, or financial relationship
13 other than that created by the instruments by which title to the facility
14 is conveyed or financed.
15 "(40) FIDUCIARY. -
16 "(A) Except as provided In subparagraph (B), the term
17 "fiduciary" means a person who owns or controls property --
t
18 "(i) as a fiduciary within the meaning of section 3(31) of
19 the Employee Retirement Income Security Act of 1974, or as a
20 trustee, executor, administrator, custodian, guardian,
21 conservator, or receiver acting for the exclusive benefit of
22 another person; and
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1 "(ii) who has not previously owned or operated the
2 property in a non-fiduciary capacity.
3 "(B) The term 'fiduciary' does not include any person described
4 in subparagraph (A) -
5 "(i) who acquires ownership or control of property to
6 avoid the liability of such person or any other person under this
7 Act; or
8 "(ii) who owns or controls property on behalf of or for
9 the benefit of a holder of a security interest.
10 "(41) MUNICIPAL SOLID WASTE. ~ The term 'municipal solid waste'
11 means all waste materials generated by households, including single and multi-family
12 residences, and hotels and motels. The term also includes waste materials generated
13 by commercial, institutional, and industrial sources, to the extent such wastes (A) are
14 essentially the same as waste normally generated by households or (B) were collected
15 and disposed of with other municipal solid waste or sewage sludge as pan of normal
16 municipal solid waste collection services, and, regardless of when generated, would
17 hn rnniiifV rn1 conditionally exempt small quantity generator waste under section
18 3001 (d) of the Solid Waste Disposal Act (42 U.S.C. 692l(d)). Examples of
19 municipal solid waste include food and yard waste, paper, clothing, appliances,
20 consumer product packaging, disposable diapers, office supplies, cosmetics, glass and
21 metal food containers, elementary or secondary school science laboratory waste, and
22 household hazardous waste (such as painting, cleaning, gardening, and automotive
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1 supplies). The term 'municipal solid waste' does not include combustion ash
2 generated by resource recovery facilities or municipal incinerators, or waste from
3 . manufacturing or processing (including pollution control) operations not essentially the
4 same as waste normally generated by households.
5 "(42) MUNICIPALITY. -- The term "municipality" means a political
6 subdivision of a State, including cities, counties, villages, towns, townships^
7 boroughs, parishes, school districts, sanitation districts, water districts, and other
8 public entities performing local governmental functions. The term also includes a
9 natural person acting in the capacity of an cfF-.ir'., -m >loyee, or agent of a
10 municipality in the performance of governmental functions.
11 "(43) QUALIFIED' HOUSEHOLD HAZARDOUS WASTE COLLECTION
12 PROGRAM. - The term "qualified household hazardous waste collection program"
13 means a program established by an entity of the federal government, a state,
14 municipality, or r
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1 release of a hazardous substance, pollutant or contaminant, and that includes an on-
2 site evaluation and sufficient testing, sampling and other field data gathering activities
3 to analyze whether there has been a release or threat of a release of a hazardous
4 substance, pollutant or contaminant, and the health and environmental risks posed by
5 such a release or threat of release. The investigation also may include review of
6 existing information (available at the time of the review), an off-site evaluation, or
7 other measures as the Administrator deems appropriate.
8 "(46) VOLUNTARY RESPONSE. -- The term "voluntary response" means a
9 response action -
10 "(A) undertaken and financed by a current owner or prospective
11 purchaser under a voluntary response program; and
12 "(B) with respect to which the current owner or prospective purchaser
13 agrees to pay all State oversight costs.".
14
15 SEC. 606. CONFORMING AMENDMENT.
16 Section 126(a) of the Act (42 U.S.C. 9626(a)) is amended by adding, after "section
17 104(i) (reflttjjBBf health authorities)," the phrase "section 127 (regarding State authority),
18 section 12ffffcegaiding voluntary response Actions),".
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2 TITLE VH - FUNDING
3 . ' '
4 SEC. 701. AUTHORIZATION OF APPROPRIATIONS.
5 Sec. 11 l(a) of the Act is amended by striking "$8,500,000,000 for the 5-year period
6 beginning on October 17, 1986, and not more than $5,100,000,000 for the period
7 commencing October 1, 1991, and ending September 30, 1994" and inserting
8 "$9,600,000,000 for the period commencing October 1, 1994 and ending September 30,
9 1999".
10
11 SEC. 702. ORPHAN SHARE FUNDING.
12 Section 11 l(a) is amended by adding after paragraph (7) (as added by this Act) the
13 following new paragraph -
14 "(8) ORPHAN SHARE FUNDING. - Payment of orphan shares pursuant to
15 section 122a(e) of this Act.".
16
17 SEC. 703* AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY.
18 Sec. Ill(m) of the Act is amended'to "read as follows -
19 "(m) There shall be directly available to the Agency for Toxic Substances
20 and Disease Registry to be used for the purpose of carrying out activities described in
21 subsection (c)(4) of this section and section 104(i) of this Act not less than
22 $80,000,000 per fiscal year for each of fiscal years 1995, 1996, 1997, 1998, and
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1 1999. Any funds so made available which are not obligated by the end of the fiscal
2 year in which made available shall be returned to the Fund.
3
4 SEC. 704. LIMITATIONS ON RESEARCH, DEVELOPMENT, AND
5 DEMONSTRATION PROGRAMS.
6 Sec. 11 l(n) of the Act is amended to read as follows -
7 "(1) Section 311(b). - For each of the fiscal years 1995, 1996, 1997, 1998,
8 and 1999, not more than $20,000,000 of the amounts available in the Fund may be
9 used for the purposes of carrying out the applied research, development, and
10 demonstration program for alternative or innovative technologies and training program
11 authorized under section 311(b) of this title (relating to research, development,
12 demonstration) other than basic research. Such amounts shall remain available until
13 expended.
14 "(2) Section 311(a). - From the amounts available in the Fund, not more
15 than the following amounts may be used for the purposes of section 311(a) of this title
16 (relating to hazardous substance research, demonstration, and training activities)
17 (A) For fiscal year 1995 $40,000,000,
18 (B) For fiscal year .19^6 $50,000,000,
* "
19 (Q For fiscal year 1997 $55,000,000,
20 (D) For fiscal year 1998 $55,000,000,
21 (E) For fiscal year 1999 $55,000,000.
22 No more than 10 percent of such amounts shall be used for training under section
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1 31 l(a) of this title for any fiscal year.
2 "(3) Section 311(d). - For each of the fiscal years 1995, 1996, 1997, 1998,
3 and 1999, not more than $5,000,000 of the amounts available in the Fund may be
4 used for the purposes of section 31 l(d) of this title (relating to university hazardous
5 substance research centers).".
6
7 SEC. 705. AUTHORIZATION OF APPROPRIATIONS FROM GENERAL
8 REVENUES.
9 Section 11 l(p)(l) of the Act is amended to read as follows ~
10 "(1) IN GENERAL. - The following sums are authorized to be appropriated,
/
11 out of any money in the Treasury not otherwise appropriated, to the Hazardous
12 Substance Superfund:
13 "(A) For fiscal year 1995, $250,000,000,
14 "(B) For fiscal year 19%, $250,000,000,
15 "(C) For fiscal year 1997, $250,000,000,
16 "(D) For fiscal year 1998, $250,000,000,
IT "(E) For fiscal year 1999, $250,000,000.
18 In addition there is authorized to be appropriated to the Hazardous Substance
19 Superfund for each fiscal year an amount equal to so much of the aggregate amount
20 authorized to be appropriated under this subsection (and paragraph (2) of section
21 131(b) of this title) as has not been appropriated before the beginning of the fiscal
22 year involved.".
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1 SEC. 706. ADDITIONAL LIMITATIONS.
2 Section 111 of the Act is amended by adding after subsection (p) the following new
3 subsections --
4 "(q) ALTERNATIVE OR INNOVATIVE TREATMENT TECHNOLOGIES.
5 - For each of the fiscal years 1995, 1996, 1997, 1998, and 1999, not more than
6 $40,000,000 of the amounts available in the Fund may be used for the purposes of
7 subsection (a)(7) of this section (relating to alternative or innovative treatment
8 technologies).
9 "(r) CTTTZEN INFORMATION AND ACCFS5 OFFICES. -- For each of the
10 fiscal years 1995, 1996, 1997, 1998, and 1999, not more than $50,000,000 of the
11 amounts available in the Fund may be used for the purposes of section 117(j) of this
12 Act (relating to citizen information and access offices).
13 "(s) MULTIPLE SOURCES OF RISK DEMONSTRATION PROJECTS. --
14 For the period commencing October 1, 1994 and ending September 30, 1999, not
15 more than $30,000,000 of the amounts available in the Fund may be used for the
16 purposes of section 117(k) of this Act (relating to multiple sources of risk
17 deanMtntion projects).". , ,
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1 TITLE VfflENVIRONMENTAL INSURANCE RESOLUTION FUND
2 SEC. 801. SHORT TITLE.
3 This title may be cited as the "Environmental Insurance Resolution and Equity Act of
4 1994".
5 SEC. 802. ENVIRONMENTAL INSURANCE RESOLUTION FUND.
6 (a) ENVIRONMENTAL INSURANCE RESOLUTION FUND ESTABLISHED. --
7 There is hereby established the Environmental Insurance Resolution Fund (hereinafter
8 referred to as the "Resolution Fund").
9 (b) OFFICES. - The principal office of the Resolution Fund shall be in the District
10 of Columbia or at such other place as the Resolution Fund may from time to time prescribe.
11 (c) STATUS ,OF RESOLUTION FUND. - Except as expressly provided in this title,
12 the Resolution Fund shall not be considered an agency or establishment of the United States.
13 The members of the Board of Trustees shall not, by reason of such membership, be deemed
14 to be officers or employees of the United States.
IS (d) BOARD OF TRUSTEES. -
16 - (1) IN GENERAL. - The Resolution Fund shall be administered by a Board
17 of Trustees (Board).
18 (2) MEMBERSHIP. - The Board shall consist of
19 (A) GOVERNMENTAL MEMBERS. -
20 (i) The Administrator of the Environmental Protection Agency.
21 (ii) The Attorney General of the United States.
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1 (B) PUBLIC MEMBERS. -- Five public members appointed by the
2 Preside"' not later than 60 days after the date of enactment of this title, not
3 less than two of whom shall represent insurers subject section of the
4 Internal Revenue Code of 1986, and not less than two of whom shall represent
5 eligible persons defined in subsection (g)(2)(A). The public members shall be
6 citizens of the United States.
7 (C) EX-OFFICIO MEMBER. - The Secretary of the Treasury shall
8 serve as an ex officio member of the Board.
9 (3) CHAIR. - The Chair of the Board shall be designated by the President
10 from time to time from among the members described in paragraph (2)(A). No
11 expenditure may be made, or other action taken, by the Resolution Fund without the
12 concurrence of the Chair of the Board.
13 (4) COMPENSATION. - Governmental members of the Board shall serve
14 without additional compensation. Public members of the Board shall, while attending
15 meetings of the Board or while engaged in duties related to such meetings or other
16 activities of the Board pursuant to this title, be entitled to receive compensation at the
f7 ratvrqf $200 per day, including travel time. While away from their homes or regular
f
18 places of business, members of the. Board shall be allowed travel and actual,
19 reasonable and necessary expenses to the same extent as officers of the United States.
20 (5) TERM OF PUBLIC MEMBERS. - Public members of the Board shall
21 serve for a term of 5 years, except that such members may be removed by the
22 President for any reason at any time. A public member whose term has expired may
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1 continue to serve on the Board until such time as the President appoints a successor.
2 The President may reappoint a public member of the Board, but no such member may
3 consecutively serve more than two terms.
4 (6) VACANCIES. - A vacancy on the Board shall be filled in the same
5 manner as the original appointment, except that such appointment shall be for the
6 balance of the unexpired term of the vacant position.
7 (7) QUORUM. - Four members of the Board shall constitute a quorum for
8 the conduct of business.
9 (8) MEETINGS. - The Board shall meet not less than quarterly at the call of
10 the Chair. Meetings of the Board shall be open to the public unless the Board, by a
11 majority vote of members present in open session, determines that it is necessary or
12 appropriate to close a meeting. The Chair shall provide at least 10 days notice of a
13 meeting by publishing a notice in the Federal Register and such notice shall indicate
14 whether it is expected that the Board will consider closing all or a portion of the
15 meeting. Nothing in this paragraph shall be construed to apply to informal
16 discussions or meetings among Board members.
17 (e) OFFICERS AND EMPLOYEES. -
*--;
18 (I) CHIEF EXECUTIVE OFFICER; CHIEF FINANCIAL OFFICER. -
19 (A) The Resolution Fund shall have a Chief Executive Officer
20 appointed by the Board who shall exercise any authority of the Resolution
21 Resolution Fund under such terms and conditions as the Board may prescribe.
22 (B) The Resolution Fund shall have a Chief Financial Officer appointed
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1 by the Board.
2 (2) COMPENSATION. -- No officer or employee of the Resolution Fund may
3 be compensated by the Resolution Fund at an annual rate of pay which exceeds the
4 rate of basic pay in effect from time to time for level I of the Executive Schedule
5 under section 5312 of title 5, United States Code. No officer or employee of the
6 Resolution Fund, other than a member of the Board, may receive any salary, or other
7 compensation from any source other than the Resolution Fund for services rendered
8 during the period of employment by the Resolution Fund.
9 (3) POLITICAL TEST OR QUALIFICATION. - No political test or
10 qualification shall be used in selecting, appointing, promoting, or taking other
11 personnel actions with respect to officers, agents, and employees of the Resolution
12 Fund.
13 (4) ASSISTANCE BY FEDERAL AGENCIES. - The Attorney General, the
14 Secretary of the Treasury, and the Administrator of the Environmental Protection
15 Agency, may to the extent practicable and feasible, and in their sole discretion, make
16 personnel and other resources available to the Resolution Fund. Such personnel and
17 reaoMces may be provided on a reinfbursable basis, and any personnel so provided
,M ""
18 shaD noc be considered employees of the Resolution Fund for purposes of paragraph
19 (2).
20 (f) POWERS OF RESOLUTION FUND. - Notwithstanding any other provision of
21 law, except as provided in this title or as may be hereafter enacted by the Congress expressly
22 in limitation of the provisions of this paragraph, the Resolution Fund shall have power --
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1 (1) to have succession until dissolved by Act of
2 Congress;
3 (2) to make and enforce such bylaws, rules and regulations as may be
4 necessary or appropriate to carry out the purposes of this title;
5 (3) to make and perform contracts, agreements, and commitments;
6 (4) to settle, adjust, and compromise, and with or without consideration or
7 benefit to the Resolution Fund release or waive in whole or in part, in advance or
8 otherwise, any claim, demand, or right of, by, or against the Resolution Fund;
9 (5) to sue and be sued, complain and defend, in any State, Federal or other
10 court;
11 (6) to determine its necessary expenditures and the manner in which the same
12 shall be incurred, allowed, and paid, and appoint, employ, and fix and provide for the
13 duties, compensation and 'benefits of officers, employees, attorneys, and agents, all of
14 whom shall serve at the pleasure of the Board;
ta
IS (7) to invest funds, through the Secretary of the Treasury, in interest bearing
16 securities of the United States suitable to the needs of the Resolution Fund; provided,
4-7 thafcuterest earned on such investments shall be retained by the Resolution Fund and
*"--.
18 use&coosistent with the purposes jof this title;
19 (8) to hire or accept the voluntary services of consultants, experts, advisory
20 boards, and panels to aid the Resolution Fund in carrying out the purposes of this
21 title; and
22 (9) to take such other actions as may be necessary to carry out the
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1 responsibilities of the Resolution Fund under this title.
2 (g) RESOLUTION OF DISPUTES BETWEEN INSUREDS AND INSURERS. --
3 (1) IN GENERAL.--The Resolution Fund shall offer a comprehensive
4 resolution described in this subsection with respect to all eligible costs of an eligible
5 person at eligible sites.
6 (2) DEFINITIONS. -
7 (A) ELIGIBLE'PERSON. - For purposes of this subsection, the term
8 "eligible person" means any individual, firm, corporation, association,
9 partnership, consortium, joint venture, commercial entity or governmental unit
10 (including any predecessor in interest or any subsidiary thereof) that satisfies
11 the following criteria:
12 (i) STATUS AS POTENTIALLY RESPONSIBLE PARTY. --
13 An eligible person --
14 (I) shall have been named at any time as a potentially
15 responsible party pursuant to the Comprehensive Environmental
16 Response, Compensation and Liability Act with respect to an
H >: eligible site on the National Priority List in connection with a
"£ '*"
18 ~ hazardous substance that was disposed of on or before
19 December 31, 1985; or
20 (n) is or was liable, or alleged to be liable, at any time
21 for removal (as defined in section 101(23) of the Comprehensive
22 Environmental Response, Compensation and Liability Act (42
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118
1 U.S.C. 9601(23)) at any eligible site in connection with a
2 hazardous substance that was disposed of on or before
3 December 31, 1985.
4 (ii) INSURANCE COVERAGE. - An eligible person shall have
5 demonstrated, to the satisfaction of the Resolution Fund, that such
6 person had entered into a valid contract for comprehensive general
7 liability (including broad form liability, general liability, commercial
8 general liability, and excess or umbrella coverage) or commercial
9 multi-peril (including broad form property, commercial package,
10 special multi-peril, and excess or umbrella coverage) insurance
11 coverage
12 (I) for any seven years in any consecutive 14 year period
13 prior to January 1, 1986; or
14 (II) in the case of a person that has been in existence for
15 less than 14 yean prior to January 1, 1986, for at least one-half
16 of such years of existence.
17 For purposes of this clause, a valid contract for insurance shall not
<...
18 include an)' contract for insurance with respect to which a person has
*/ ~
19 entered into a settlement with an insurer providing, or where a
20 judgment has provided, that the contract has been satisfied and that
21 such person has no right to make any further claims under such con-
22 tract.
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1 (B) ELIGIBLE COSTS. -
2 (i) IN GENERAL. - For purposes of this subsection, the term
3 "eligible costs" means costs described in clause (ii) or (iii) incurred
1- ' with respect to a hazardous substance that was disposed of on or before
5 December 31, 1985--
6 (I) for which an eligible person has not been reimbursed;
7 or
8 (II) for which an eligible person has been reimbursed and
9 that are the subject of a dispute between the eligible person and
10 an insurer.
11 (ii) NPL SITES. - With respect to an eligible site described in
12 subparagraph (C)(i), eligible costs means costs described in clause (i) -
13 (I) of response (as defined in section 101(25) of the
14 Comprehensive Environmental Response, Compensation and
15 Liability Act (42 U.S.C. 96C1(25));
16 (II) for natural resources damages; or
17 . (TH) to defend potential liability
18 (including, but not limited to, attorney's fees, costs of suit,
19 consultant and expert fees and costs, and expenses for testing
20 and monitoring).
21 (iii) NON-NPL SITES. -- With respect to an eligible site de-
22 scribed in subparagraph (C)(ii), eligible costs means costs described in
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1 clause (i) --
2 (I) of removal (as defined in section 101(23) of the Com-
3 prehensive Environmental Response, Compensation and Liability
4 Act (42 U.S.C. 9601(23)); or
5 (n) to defend potential liability (including, but not
6 limited to, attorney's fees, costs of suit, consultant and expert
7 fees and costs, and expenses for testing and monitoring).
8 (iv) LIMIT ON ELIGIBLE COSTS. --
9 (I) Except as provided in subclause (II), the eligible costs
10 of an eligible person may not exceed -
11 (aa) $15,000,000 in the case of an eligible person
12 , that has demonstrated insurance coverage pursuant to
13 subparagraph (A)(ii)(I); or
14 (DO) an amount equal to one-seventh of
15 $15,000,000 for each year of insurance coverage, in the
16 case of an eligible person that has demonstrated insur-
17 ance coverage pursuant to subparagraph (A)(ii)(n).
18 (II) The limitation on eligible costs provided in subclause
19 (I) shall not apply to an eligible person that, when filing a re-
20 quest for a resolution offer with the Resolution Fund, presents
21 evidence to the satisfaction of the Resolution Fund that the limits
22 on valid contracts of insurance (including per occurrence, aggre-
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1 gate, primary, excess or other limits) of such eligible person
2 prior to January 1, 1986, cumulatively exceed the amount deter-
3 mined pursuant to subclause (I) without reference to any time
4 period. For purposes of this clause, a valid contract for in-
5 surance shall not include any contract for insurance with respect
6 to which an eligible person has entered into a settlement with an
7 insurer providing, or where a judgment has provided, that the
8 contract has been satisfied and that such eligible person has no
9 right to make any further cl Jr .s nder such contract.
10 (C) ELIGIBLE SITE. -- For purposes of this subsection, the term
11 "eligible site" means -
12 (i) any site or facility placed on the National Priority List at any
13 time, at which a hazardous substance was disposed of on or before
14 D-member 31, 1985; or
IS (ii) any site or facility subject to a removal (as defined in section
16 101(23) of the Act (42 U.S.C. 9601(23)) conducted pursuant to such
17 Act at any time, at which a hazardous substance was disposed of on or
18 before December 31-1985.
19 For purposes of this subparagraph, the term "facility" shall have the same
20 meaning as provided in section 101(9) of the Comprehensive Environmental
21 Response, Compensation and Liability Act (42 U.S.C. 9601(9)).
22 (D) STATE. - For purposes of this subsection, the term "State" shall
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1 have the same meaning as provided in section 101(27) of the Comprehensive
2 Environmental Re-sponse, Compensation and Liability Act (42 U.S.C.
3 9601(27)).
4 (3) RESOLUTION OFFERS. -
5 (A) IN GENERAL. - The Resolution Fund shall offer one compre-
6 hensive resolution to each eligible person. The offer shall --
7 (i) be for a percentage of all of the eligible costs of such eligible
8 person incurred in connection with all eligible sites, determined
9 pursuant to paragraph (4); and
10 (ii) state the limitation on eligible costs, if any, applicable to the
11 eligible person pursuant to paragraph (2)(B)(ii).
12 (B) REQUESTS FOR RESOLUTION OFFERS. - An eligible person
13 shall file a request for resolution from the Resolution Fund in such form and
14 manner as the Resolution Fund shall prescribe. No such request shall be
15 deemed received by the Resolution Fund before the date final regulations
16 concerning State percentage categories are published in the Federal Register
17 pursuant to paragraph 4(B)(ui). The Resolution Fund shall make an offer of
18 "~ resolution, determined pursuant to paragraph (4), to each eligible person that
19 has filed a request for an offer of resolution not later than 180 days after the
20 receipt of a complete request as determined by the Resolution Fund.
21 (C) REVIEW OF RESOLUTION OFFERS. -- No resolution offer
22 ' made by the Resolution Fund shall be subject to review by any court.
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1 (4) DETERMINATION OF RESOLUTION OFFERS. -
2 (A) IN GENERAL. - The Resolution Fund shall detennine a resolution
3 offer--
4 (i) in the case of an eligible person that has established only one
5 State litigation venue pursuant to subparagraph (C), by applying the
6 State percentage determined pursuant to subparagraph (B)(iii) to the
7 established State litigation venue;
8 (ii) in the case of an eligible person that has established two or
9 more State litigation venues pursuant to subparagraph (C), each site
10 with respect to which a State litigation venue has been established shall
11 be accorded equal value and the applicable percentage shall be the
12 weighted average of all established State litigation venues; or
13 (iii) in the case of an eligible person that has not established any
14 State litigation venue pursuant to subparagraph (C) -
15 (I) if the eligible person has potential liability in
16 connection with only one hazardous waste site, by applying the
17 State percentage determined pursuant to subparagraph (B)(iii) to
*--,
18 the State in which the site is located; or
19 (II) if the eligible person has potential liability in
20 connection with more than one hazardous waste site, each site
21 shall be accorded equal value and the applicable percentage shall
22 be the weighted average of all States in which the sites are
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124
1 located.
2 (B) STATE PERCENTAGE. --
3 (i) IN GENERAL. - The Congress finds that as of January 1,
4 1994, State law generally is more favorable to eligible persons that
5 pursue claims conce-nirg eligible costs against insurers in some States,
6 that State law generally is more favorable to insurers with respect to
7 such claims in some States, and that in some States the law generally
8 favors neither insurers nor eligible persons with respect to such claims
9 or that there is insufficient infonnation to determine whether such law
generally favors insurers or eligible persons with respect to such
11 claims. The Congress further finds that considerations of equity and
12 fairness require that resolution offers made by the Resolution Fund
13 must vary to reflect the relative state of the law among the several
14 States.
IS (ii) PROPOSED REGULATIONS. - The Resolution Fund shall
16 examine the law in each State as of January 1, 1994. Not later than
17 120 days after the date,of enactment of this title, the Resolution Fund
18 shall publish in the federal Register a notice of proposed rulemaking
19 . soliciting public comment for 60 days and classifying States into the
20 following percentage categories:
21 (I) 20 percent, in the case of the ten States in which the
22 Resolution Fund determines that State law generally is most
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125
1 favorable to insurers relative to the other States;
2 (II) 60 percent, in the case of the ten States in which the
3 Resolution Fund determines that State law generally is most
4 favorable to eligible persons relative to the other States; and
5 (HI) 40 percent, in the case of all other States.
6 (iii) FINAL REGULATIONS. --
7 (I) Not later than 60 days after the close of the public
8 comment period, the Resolution Fund shall publish in the
9 Federal Register final regulations providing State classifications.
lO (II) The State classifications provided in the final rule
11 shall govern all resolution offers made by the Resolution Fund
12 and shall not be subject to amendment by the Resolution Fund.
13 (IE) Notwithstanding any other provision of law, the
14 , final regulations promulgated by the Resolution Fund pursuant
IS to this clause shall not be subject to review by any court.
16_ ;Q LITIGATION VENUE. - For purposes of this subsection,
17 . litigation venue is considered established with respect to an eligible person if -
*/ *
18 (i) on or before December 31, 1993, the eligible person had
19 pending in a court of competent jurisdiction a complaint or cross
20 complaint against an insurer with respect to eligible costs at an eligible
21 site; and
22 (ii) no motion to change venue with respect to such complaint
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126
1 was pending on or before January 31, 1994.
2 (5) ACCEPTANCE OR REJECTION OF RESOLUTION OFFER. --
4 (i) An eligible person may, when submitting a request for a
5 resolution to the Resolution Fund, make a written irrevocable election
6 to accept any resolution to be made by the Resolution Fund.
7 (ii) An eligible person that does not make an election pursuant
8 to clause (i) shall, within 60 days of the receipt of a resolution offer
9 from the Resolution Fund, notify the Resolution Fund in writing of its
10 irrevocable acceptance or rejection of such offer. An eligible person
11 who does not so accept or reject a resolution offer within 60 days shall
12 be deemed to have made an irrevocable election to reject the offer and
13 the provisions of subparagraph (C) shall apply.
14 (B) RESOLUTION OFFER ACCEPTED. - An eligible person that
N
15 accepts a resolution offered by the Resolution Fund shall be subject to the
16 provisions of this paragraph.
17- (i) WAIVER OF INSURANCE CLAIMS. - The Resolution
**- -.
18 Fund shall not make payments to an eligible person unless the eligible
19 person agrees in writing, subject to reinstatement described in clause
20 (ii) -
21 (I) to waive any existing and future claims against any
22 insurer for eligible costs; and
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127
1 (IT) to stay or dismiss each claim pending against an
t
2 insurer for eligible costs.
3 (ii) REINSTATEMENT OF INSURANCE CLAIMS. -
4 (I) If the Resolution Fund fails to timely fulfill its obliga-
5 tions to an eligible person under the terms of an accepted
6 resolution offer, such eligible person shall be entitled to reinstate
7 any claim under a contract for insurance with respect to eligible
8 costs.
9 (II) STATUTE OF LIMITATION TOLLED. -
10 Notwithstanding any other provision of Federal or State law,
11 any Federal or State statute of limitation concerning the filing or
12 prosecution of an action by an eligible person against an insurer,
13 or by an insurer against an eligible person, with respect to
14 eligible costs shall be tolled during the pendency of the stay of
15 pending litigation established by section 804(a).
16 (iii) PAYMENT OF RESOLUTION OFFERS. -
17 *, (I) PRE-RESOLUnON COSTS. - The Resolution Fund
<..
18 shall make equal annual payments over a
19 period of eight years for eligible costs incurred by an eligible
20 person on or before the date such person accepts a resolution
21 offer pursuant to subparagraph (A)(i) or (ii), and interest shall
22 not accrue with respect to such eligible costs. The Resolution
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128
1 Fund may, in its sole discretion, make such payments over a
2 shorter period if the aggregate eligible costs do not exceed
3 $50,(XX). An eligible person shall submit to the Resolution
4 Fund documentation cf such costs as the Resolution Fund may
5 require. The initial payment to an eligible person under this
6 subclause shall be made not later than 60 days after the receipt
7 of documentation satisfactory to the Resolution Fund.
8 (II) POST-RESOLUTION COSTS. -- The Resolution
9 Fund shall make payments for eligible costs incurred by an
10 eligible person after the date such person accepts a resolution
11 offer pursuant to subparagraph (A)(i) or (ii) to the eligible
12 person, or to a contractor or other person designated by the
13 eligible person, subject to such documentation as the Resolution
14 Fund may require. Payments under this subclause shall be made
15 not later than 60 days after the receipt of documentation satis-
16 factory to the Resolution Fund.
"17. ~r» (HI) ADJUSTMENT FOR DEDUCTIBLE OR SELF
'* **"- .
18 " INSURANCE. ~ In the case of an eligible person that has sub-
19 mitted to the Resolution Fund, as proof of status as an eligible
20 person, a contract for insurance described in paragraph
21 (2)(A)(ii) that is subject to a self-insured retention or a
22 deductible, payment to such eligible person pursuant to a
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129 '
1 resolution shall be reduced by the amount of such self-insured
2 retention or deductible, except that such reduction shall not
3 exceed the amount of one self-insured retention or one
4 deductible that the eligible person would have been required to
5 pay with respect to one claim for eligible costs under the terms
6 of the contracts for insurance submitted. In the event that the
7 eligible person submitted more than one contract for insurance,
8 any such reduction shall be made with respect to the lowest of
9 the amounts of self-insured retentions and deductibles.
10 (IV) ADJUSTMENT FOR CERTAIN DUTY-TO-
11 DEFEND COSTS. ~ If an insurer has incurred and paid costs
12 pursuant to a duty-to-defend clause contained in a contract for
13 insurance described in paragraph (2)(B), and such costs are the
14 subject of a dispute between the eligible person and an insurer,
15 the payment of a resolution to an eligible person shall be
16 reduced by such amount, and the Resolution Fund shall pay
IT such amount loathe insurer. If such costs were paid by the
18 insurer on orbefbre the date the eligible person accepted a
19 resolution offer made by the Resolution Fund, payment to an
20 insurer under this subclause shall be made in equal annual
21 installments over a period of eight years, and interest shall not
22 accrue with respect to such costs. The Resolution Fund may, in
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130
1 its sole discretion, make such payments over a shorter period if
2 the aggregate costs do not exceed $50,000.
3 (C) RESOLUTION OFFER REJECTED; LITIGATION OF
4 INSURANCE CLAIMS. -
5 (i) ADMESmttJTY OF RESOLUTION OFFER. - No
6 resolution offered by the Resolution Fund shall be admissible in any
7 legal action brought by an eligible person against an insurer or by an
8 insurer against an eligible person.
9 (ii) INSURER ACTION AGAINST ELIGIBLE PERSON. --
10 Any eligible person that rejects a resolution offer, litigates a claim with
11 respect to eligible costs against an insurer, and obtains a final judgment
12 that is less favorable than the resolution offered by the Resolution
13 Fund, shall be liable to such insurer for 20 percent of the reasonable
14 costs and legal fees incurred by the insurer in connection with such
15 litigation after the resolution was offered to the eligible person. The
16 district courts of the United States shall have original jurisdiction of all
IT- such actions, without regard to amount or value. The court shall
<,. ._f
18 reduce any award to art insurer in any such action by the amount, if
,M ~
19 any, of such costs and legal fees recovered by the insurer pursuant to
20 State law or court rule. Nothing in this clause shall be construed to
21 limit or affect in any way the application of State law, or the rule of
22 any court, to* such costs or legal fees.
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1 (iu) REIMBURSEMENT TO INSURER.--In the case of an
2 eligible person that rejects a resolution offer, litigates a claim with
3 respect to eligible costs against one or more insurers, and obtains a
4 final judgment against any such insurer, the Resolution Fund --
5 (I) shall reimburse to such insurer or insurers the lesser
6 of the amount of the resolution offer made to the eligible person
7 or the final judgment; and
8 (II) may, if the resolution offer exceeded the final
9 judgment, reimburse the insurer or insurers for unrecovered
10 reasonable costs and legal fees, except that the total reim-
11 bursement under this subclause may not exceed the amount of
12 the resolution offer to the eligible person.
13 Reimbursements pursuant to this clause shall be subject to such
14 documentation as the Resolution Fund may require and shall made by
. «
IS the Resolution Fund not later than 60 days after receipt by the
16 Resolution Fund of a complete request for reimbursement as determined
17 by the Resolution Fund.
18 («> PAYMENTS CONSIDERED PURSUANT TO INSURANCE
*/ ~
19 CONTRACT. - Payments made by the Resolution Fund pursuant to a resolution offer
20 shall be deemed payments made by an insurer under the terms and conditions of a
21 contract of insurance or in settlement thereof. Nothing in this paragraph shall be con-
22 strued to affect in any way the issue of whether the liability limits of a contract of
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1 insurance has been satisfied.
2 (7) RESOLUTION PROCESS NOT ADMISSION OF LIABILITY. - No
3 provision of this title, and no action by an eligible person undertaken in connection
4 with any provision of this title shall in any way constitute an admission of liability in
5 connection with the disposal of a hazardous substance.
6 (8) REGULATIONS. -
7 (A) PROCEDURES AND DOCUMENTATION. - Not later than 120
8 days after the date of enactment of this title, the Resolution Fund shall publish
9 in the Federal Register for public comment of not more than 60 days interim
10 final regulations concerning procedures and documentation for the submission
11 of requests for resolution offers and the payment of accepted resolution offers.
12 Not later than 60 days after the close of the public comment period, the
13 Resolution Fund shall publish in the Federal Register final regulations
14 concerning such procedures and documentation, which may be amended by the
15 Resolution Fund from time to time.
16 (B) OTHER REGULATIONS. - The Resolution Fund may prescribe
11 ^ neb other regulations, rules and procedures as the Resolution Fund deems
-- "*--
18 ^ appropriate from time to time.
/ ~
19 (Q JUDICIAL REVIEW. - No regulation, rule or procedure
20 prescribed by the Resolution Fund pursuant to this paragraph shall be subject
21 to review by any court except to the extent such regulation, rule or procedure
22 is not consistent with a provision of this title.
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1 (h) JURISDICTION OF FEDERAL COURTS. -- Notwithstanding section 1349 of
2 title 28, United States Code:
3 (1) The Resolution Fund shall be deemed to be an agency of the United States
4 for purposes of sections 1345 and 1442 of title 28, United States Code.
5 (2) All civil actions to which the Resolution Fund is a party shall be deemed to
6 arise under the laws of the United States, and the district courts of the United States
7 shall have original jurisdiction of all such actions, without regard to amount or value.
8 (3) Any civil or other action, case or controversy in a court of a State, or in
9 any court other than a district court of the United States, to which the Resolution
10 Fund is a party may at any time before the trial thereof be removed by the Resolution
11 Fund, without the giving of any bond or security, to the district court of the United
12 States for the district and division embracing the place where the same is pending, or,
13 if there is no such district court, to the district court of the United States for the
14 district in which the principal office of the Resolution Fund is located, by following
IS any procedure for removal of causes in effect at the time of such removal.
16 (4) No attachment or execution shall be issued against the Resolution Fund or
17 any of its property before final judgment in any State, Federal, or other court.
18 (i)lEPORTS.-
19 (1) ANNUAL REPORTS. -- The Resolution Fund shall report annually to the
20 President and the Congress not later than January IS of each year on its activities for
21 the prior fiscal year. The report shall include -
22 (A) a financial statement audited by an independent auditor, and
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1 (B) a determination of whether the fees and assessments imposed by
2 section of the Internal Revenue Code of 1986 will be sufficient to meet the
3 anticipated obligations of the Resolution Fund.
4 (2) SPECIAL REPORTS. - The Resolution Fund shall promptly report to the
5 President and the Congress at any time the Resolution Fund determines that the fees
6 and assessments imposed by section of the Internal Revenue Code of 1986 will be
7 insufficient to meet the anticipated obligations of the Resolution Fund.
8 (j) FALSE OR FRAUDULENT STATEMENTS OR CLAIMS. -
9 (1) CRIMINAL PENALTIES. -
10 (A) For purposes of section 287 of title 18, United States Code
11 (relating to false claims), the Resolution Fund shall be considered an agency of
12 the United States and any officer or employee of the Resolution Fund shall be
13 considered a person in the civil service of the United States.
14 (B) For purposes of section 1001 of title 18, United States Code
15 (relating to false statements or entries), the Resolution Fund shall be
16 considered an agency of the United States.
17 (2) CIVIL PENALTIES. -- Officers and employees of the Resolution Fund
18 shaft §e considered officers and employees of the United States for purposes of
19 section 3729 of tide 31, United States Code (relating to false claims).
20 SEC. 803. FINANCIAL STATEMENTS, AUDITS, INVESTIGATIONS AND
21 INSPECTIONS.
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135
1 (a) IN GENERAL. -- The financial statements of the Resolution Fund shall be
2 prepared in accordance with generally accepted accounting principles and shall be audited
3 annually by an independent certified public accountant in accordance with the auditing
4 standards issued by the Comptroller General. Such auditing standards shall be consistent
5 with the private sector's generally accepted auditing standards.
6 (b) INVESTIGATIONS AND OTHER AUDITS. - The Inspector General of the
7 Environmental Protection Agency is authorized to conduct such audits and investigations as
8 the Inspector General deems necessary or appropriate. For purposes of the preceding sen-
9 tence, the provisions of the Inspector General Act of 1978 shall apply to the Resolution Fund
10 and to the Inspector General to the same extent as they apply to the Environmental Protection
11 Agency.
12 SEC. 804. STAY OF FENDING LITIGATION.
13 (a) IN GENERAL. -
14 (1) Except as provided in this section, enactment of this title operates as a
IS stay, applicable to all persons other than the United States, of the commencement or
16 conthmtion, including the issuance or employment of process or service of any
17 pleading, motion, or notice, of any-judicial, administrative, or other action with
18 respect to claims for indemnity or other claims arising from a contract for insurance
19 described in section 802(g)(2)(A)(ii) concerning insurance coverage for eligible costs
20 as defined in section 802(g)(2)(B)(i).
21 (2) Nothing in paragraph (1) shall be construed to apply to the extent the
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136
1 issuance or employment of process or service of any pleading, motion, or notice, of
2 any judicial, administrative; or other action with respect to claims for indemnity or
3 other claims does not concern eligible costs (as defined in section 802(g)(2)(B)(i)) or a
4 contract for insurance described in section 802(g)(2)(A)(ii). An eligible person (as
5 defined in section 802(g)(2)(A)) may move to sever claims not involving eligible costs
6 from claims involving eligible costs and may proceed with the prosecution of claims
7 not involving eligible costs.
8 (b) TERMINATION OF STAY. -
9 (1) PENDING OFFER OF RESOLUTION. -- The stay established by
10 subsection (a) shall terminate with respect to an eligible person upon the earlier of -
11 (A) the rejection of a resolution offer by such eligible person pursuant
12 to section 802(g)(5)(A); or
13 (B) the failure of the Resolution Fund to timely fulfill the terms of a
14 resolution offer accepted by such eligible person.
f,'
15 (2) EXPIRATION OF RESOLUTION OFFERS. - No stay established by
16 subsection (a) shall be effective after May 31, 2000.
"17 (c) OTHER STAYS. - Nothing in this section shall be construed to limit or affect in
*--,
18 any way the discretion of any judicial, administrative, or other entity to maintain or impose a
19 stay that is not required by subsection, (a) but that will otherwise serve the ends of justice by
20 staying a judicial, administrative or other action pending the acceptance or rejection of a
21 resolution offer pursuant to section 802(g)(S)(A).
22 (d) AUTHORITY OF UNTIED STATES UNAFFECTED. - Nothing in this section
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137
1 shall be construed to limit or affect in any way the discretion or authority of the United
2 States or any party to commence or continue an allocation process, cost recovery, or other
3 action pursuant to the authority of sections 101-122a of the Comprehensive Environmental
4 Response, Compensation and Liability Act (42 U.S.C. 9601-9622a).
5 SEC. 805. SUNSET PROVISIONS.
6 (a) AUTHORITY TO ACCEPT REQUESTS FOR RESOLUTION. - The authority
7 of the Resolution Fund to accept requests for resolution shall terminate after September 30,
8 19*9.
9 (b) AUTHORITY TO OFFER RESOLUTIONS. - The authority of the Resolution
10 Fund to offer resolutions to eligible persons shall terminate after March 31, 2000.
11 (c) CONTINUING OBLIGATIONS. ~ Nothing in this section shall be construed to
12 limit or affect in any way the authority of the Resolution Fund -
13 (1) to make payments pursuant to resolution offers made on or before March
14 31, 2000; or
IS (2) to reimburse insurers with respect to litigation commenced or continued in
15 cooMEtint with a resolution offer made on or before March 31, 2000, that was
JF. . .'- -
17 rej«£f by an eligible person or nor acted upon by an eligible person as provided in
18 section 802(g)(5)(A).
19 SEC. 806. SOVEREIGN IMMUNITY OF THE UNITED STATES.
20 No obligation or liability of the Resolution Fund shall constitute an obligation or
21 liability of the United States, or of any department, agency, instrumentality, officer, or
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138
1 employee thereof. No person shall have a cause of action of any kind against the United
2 States, or any department, agency, instrumentality, officer, or employee thereof with respect
3 to any obligation, liability, or activity of the Resolution Fund.
4 SEC. 807. EFFECTIVE DATE.
5 The provisions of this title shall become effective on the date of enactment of this
6 title.
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1 TITLE IX - TAXES
2 SEC. 901. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.
3 (a) Section 59A(e)(l) of the Internal Revenue Code of 1986 (26 U.S.C. 59A(e)(l)) is
4 amended by striking "January 1, 1996" and inserting instead "January 1, 2001".
5 (b) Section 461 l(e) of the Internal Revenue Code of 1986 (26 U.S.C. 461 l(e)) is
6 amended
7 (1) in paragraph (1), by striking "December 31, 1986" and inserting instead
8 "December 31, 1995";
9 (2) in paragraph (2)~
10 ' (A) by striking "December 31, 1993 or December 31, 1994" and
11 inserting instead "December 31, 1998 or December 31, 1999";
12 (B) by striking "December 31, of 1994 or 199S, respectively" and
13 inserting instead "December 31 of 1999 or 2000, respectively"- and
14 (Q by striking "1994 or 1995" the last place it appears and inserting
15 instead "1999 or 2000";
16 , (3) in paragraph (3)(A), by striking "January 1, 1987, and ending December
"*--.
17 31, 1995" and inserting instead "Jaipuary 1, 1996, and ending December 31, 2000";
18 and
19 (4) in paragraph (3)(B)~
20 (A) in the title thereof, by striking "January 1, 1996* and inserting
21 "January 1, 2001"; and
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1 (B) by striking "Fund before January 1, 1996" and inserting instead
2 "Fund before January 1, 2001'.
3 SEC. 902. ENVIRONMENTAL FEES AND ASSESSMENTS ON INSURANCE
4 COMPANIES.
5 (a) IN GENERAL. The Internal Revenue Code of 1986 is amended by inserting
6 after section the following new section:
7 "SEC. . Environmental Fees and Assessments on Insurance Companies.
8 [RESERVED]
9 (b) CLERICAL AMENDMENT. The table of sections for chapter of the
10 Internal Revenue Code of 1986 is amended by inserting after the item relating to section
11 the following:
12 "Sec. . Environmental Fees and Assessments on Insurance
13 Companies.".
14 SEC. 903. FUNDING PROVISIONS FDR ENVIRONMENTAL INSURANCE
IS RESOLUTION FUND.
16 (a) IN GENERAL. -
*-.
17 (1) Except as provided in section 802(f)(7) of this Act, all expenditures of the
18 Resolution Fund shall be paid out of the fees and assessments imposed by section
19 of the Internal Revenue Code.
20 (2) Except as may be expressly authorized by the Secretary of the Treasury,
21 all funds of the Resolution Fund shall be maintained in the Treasury of the United
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1 States. The Secretary may provide for the disbursement of such funds to the
2 Resolution Fund or on behalf of the Resolution Fund under such procedures, terms
3 and conditions as the Secretary may prescribe.
4 (b) TRANSFER TO RESOLUTION FUND. - The Secretary of the Treasury shall
5 transfer to the Resolution Fund on October 1 of fiscal yean 1995, 1996, 1997, 1998 and
6 1999, an amount equal to the fees and assessments anticipated to be collected pursuant to
7 section of the Internal Revenue Code of 1986 during the then current fiscal year.
8 (c) ADJUSTMENTS. - In each succeeding fiscal year the Secretary of the Treasury
9 shall adjust the amounts transferred pursuant to paragraph p.) *o reflect actual collections of
10 fees and assessments during the prior fiscal year, except that with respect to the transfer
11 made on October 1, 1999, the Resolution Fund shall reimburse the Secretary the amount of
12 such transfer subsequently determined by the Secretary to have exceeded actual collections of
13 fees and assessments during such fiscal year.
>'
14 SEC. 904. RESOLUTION FUND NOT SUBJECT TO TAX.
15 The Resolution Fund, including its capital, reserves, surplus, security holdings, and
16 income shaft to exempt from all taxation now or hereafter imposed by the United States
ff ~
17 (including any territory, dependency or possession thereof) or any State, county, municipality
18 or local taxing authority.
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10019942
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OFFICE Of
THE ADMINISTRATOR
February 2, 1994
The Honorable Albert Gore, Jr.
President
United States Senate
Washington, D.C. 20510
Dear Mr. President:
I am pleased to transmit to you the Clinton Administration's proposed "Superfund
Reform Act of 1994."
This reform initiative fulfills the Clinton Administration's commitment to
protecting human health and the environment and to making Superfund cleanups faster,
fairer and more efficient. It will change the way we do business in the Superfund
program and sets a standard for environmental legislation.
The legislation which would amend the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), was developed through a lengthy
process that capitalized on the expertise of the many Superfund stakeholders -- both
inside and outside of government.
< .
EPA staff have worked for the past two years developing ideas and proposals for
Superfund reform. These proposals were reviewed by an interagency policy committee
comprised of senior officials from interested agencies that examined the program and
made recommendations for change.
I convened a subcommittee of the National Advisory Council on Environmental
Policy and Technology (NACEPT) to identify administrative and legislative
go improvements in the Superfund program. The NACEPT subcommittee was comprised of
'"""- representatives from environmental groups, small and large businesses, municipalities,
c° states, the environmental justice community, and the hazardous waste cleanup industry.
Or
o.
EPA Hecc---- ---_- T--K $& Printed on Recycled Paper
+-- ^ij Library ^P
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The National Commission on Superfund, under the aegis of The Keystone Center
and the Environmental Law Center of the Vermont Law School, made public its findings
and recommendations. Since that time, the Administration has striven to develop a
proposal that profits from the expertise and dialogue of all of these groups and interests.
We believe that the "Superfund Reform Act of 1994" will achieve the Clinton
Administration's goals of protecting human health and the environment; of reducing
cleanup costs and transaction costs; of fully involving communities; of enhancing states'
authorities; of stimulating economic redevelopment; and of encouraging advances in
science and technology.
Title I, "Community Participation and Human Health," establishes community
workgroups as advisory bodies at Superfund sites and expands the grant awards to
communities. It provides that communities suffering disproportionate risks are eligible
for environmental justice grants to analyze aggregate risk and response activities.
Further, it creates citizen information and access offices in each state to serve as
information clearinghouses on the status of and plans for state sites.
Title n, "State Roles," offers states the opportunity to assume a larger role in
cleanup of sites and gives states access to federal funds to carry out cleanup actions.
Title m, "Voluntary Response," establishes a program to assist states in
establishing or expanding voluntary cleanup programs.
Tide IV, "Liability and Allocation," provides exemptions for de mcroms (or truly
tiny) contributors of waste and expedited settlement for de minimis parties. It limits the
liability of municipal solid waste generators and transporters and provides protection for
lenders and trustees. Finally, it establishes a cost allocation process by a neutral
professional that will substantially curtail litigation.
Title V, "Remedy Selection," reduces cleanup costs by calling for national cleanup
levels for contaminants typically found at sites. It provides generic remedies to speed
cleanup time, and it replaces the preference for permanence and treatment with the
concept of long-term reliability.
Title VI, "Miscellaneous," contains conforming amendments, definitions and other
miscellaneous provisions amending CERCIiA.
.*' ~
Tide Vn, "Funding,"provides amendments regarding authorizations for
appropriations and limits on funding.
Tide VIE, "Environmental Insurance Resolution Fund," establishes the
Environmental Insurance Resolution Fund to resolve disputes between insurers and
insureds arising under CERCLA. This provision was proposed by members of the
insurance and "potentially responsible party" community.
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