[Senate Report 105-192]
[From the U.S. Government Publishing Office]
Calendar No. 371
105th Congress Report
SENATE
2d Session 105-192
_______________________________________________________________________
SUPERFUND CLEANUP ACCELERATION ACT OF 1998
----------
REPORT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
together with
ADDITIONAL, SUPPLEMENTAL, AND MINORITY VIEWS
TO ACCOMPANY
S. 8
May 19, 1998.--Ordered to be printed
SUPERFUND CLEANUP ACCELERATION ACT OF 1998
Calendar No. 371
105th Congress Report
SENATE
2d Session 105-192
_______________________________________________________________________
SUPERFUND CLEANUP ACCELERATION ACT OF 1998
__________
REPORT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
together with
ADDITIONAL, SUPPLEMENTAL, AND MINORITY VIEWS
TO ACCOMPANY
S. 8
May 19, 1998.--Ordered to be printed
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTH CONGRESS
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma HARRY REID, Nevada
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas BARBARA BOXER, California
WAYNE ALLARD, Colorado RON WYDEN, Oregon
JEFF SESSIONS, Alabama
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
C O N T E N T S
__________
Page
General statement:
Introduction................................................. 1
Overview of current law...................................... 4
Problems and solutions:
Liability................................................ 5
Remedy selection......................................... 6
Brownfields.............................................. 8
State role............................................... 9
Community participation.................................. 10
Natural resource damages................................. 11
Federal facilities....................................... 12
Section-by-section summary:
Section:
Short title; table of contents........................... 13
TITLE I--BROWNFIELDS REVITALIZATION
Section:
Sec. 101. Brownfields................................... 13
Sec. 102. Assistance for qualifying State voluntary
release programs....................................... 17
Sec. 103. Enforcement in cases of a release subject to a
State plan............................................. 17
Sec. 104. Contiguous properties......................... 20
Sec. 105. Prospective purchasers and windfall liens..... 21
Sec. 106. Safe harbor innocent landholders.............. 23
TITLE II--STATE ROLE
Section:
Sec. 201. Transfer to the States of responsibility at
non-Federal National Priorities List facilities........ 24
TITLE III--LOCAL COMMUNITY PARTICIPATION
Section:
Sec. 301. Definitions................................... 30
Sec. 302. Public participation generally................ 31
Sec. 303. Improvement of public participation in the
superfund decisionmaking process; local community
advisory groups; technical assistance grants........... 31
Sec. 304. Technical outreach services for communities... 34
Sec. 305. Agency for Toxic Substances and Disease
Registry............................................... 34
Sec. 306. Understandable presentation of materials...... 36
Sec. 307. No impediment to response actions............. 36
TITLE IV--SELECTION OF REMEDIAL ACTIONS
Section:
Sec. 401. Definitions................................... 36
Sec. 402. Selection and implementation of remedial
actions................................................ 37
Sec. 403. Remedy selection methodology.................. 47
Sec. 404. Remedy selection procedures................... 49
Sec. 405. Completion of physical construction and
delisting.............................................. 51
Sec. 406. Transition rules for facilities currently
involved in remedy selection........................... 52
Sec. 407. National Priorities List...................... 53
TITLE V--LIABILITY
Section:
Sec. 501. Liability exceptions and limitations.......... 54
Sec. 502. Contribution from the fund.................... 58
Sec. 503. Expedited settlement for certain parties...... 59
Sec. 504. Allocation of liability for certain facilities 60
Sec. 505. Certain facilities owned by local governments. 65
Sec. 506. Liability of response action contractors...... 66
Sec. 507. Release of evidence........................... 68
Sec. 508. Contribution protection....................... 69
Sec. 509. Treatment of religious, charitable,
scientific, and educational organizations as owners or
operators.............................................. 69
Sec. 510. Common carriers............................... 70
Sec. 511. Limitation on liability of railroad owners.... 70
Sec. 512. Liability of recyclers........................ 71
Sec. 513. Requirement that cooperation, assistance, and
access be provided..................................... 74
TITLE VI--FEDERAL FACILITIES
Section:
Sec. 601. Transfer of authorities....................... 74
Sec. 602. Innovative technologies for remedial action at
Federal facilities..................................... 75
Sec. 603. Full compliance by Federal entities and
facilities............................................. 77
TITLE VII--NATURAL RESOURCE DAMAGES
Section:
Sec. 701. Restoration of natural resources.............. 78
Sec. 702. Consistency between response actions and
resource restoration standards......................... 79
Sec. 703. Contribution.................................. 79
Sec. 704. Mediation..................................... 80
Sec. 705. Coeur d'Alene basin........................... 80
Sec. 706. Effective date................................ 80
TITLE VIII--MISCELLANEOUS
Section:
Sec. 801. Result-oriented cleanups...................... 84
Sec. 802. Obligations from the fund for response actions 85
Sec. 803. Recycled oil.................................. 86
Sec. 804. Law enforcement agencies not included as owner
or operator............................................ 87
Sec. 805. Lead in soil.................................. 88
Sec. 806. Pesticides applied in compliance with law..... 90
Sec. 807. Technical corrections......................... 91
TITLE IX--FUNDING
Section:
Sec. 901. Authorization of appropriations from the fund. 91
Sec. 902. Orphan share funding.......................... 92
Sec. 903. Department of health and human services....... 92
Sec. 904. Limitations on research, development, and
demonstration programs................................. 92
Sec. 905. Authorization of appropriations from general
revenues............................................... 93
Sec. 906. Additional limitations........................ 93
Sec. 907. Reimbursement of potentially responsible
parties................................................ 93
Hearings......................................................... 93
Rollcall votes................................................... 97
Regulatory impact................................................ 98
Mandates assessment.............................................. 100
Comment from the General Accounting Office....................... 101
Cost of legislation.............................................. 104
Additional views of:
Senator Kempthorne........................................... 113
Senator Bond................................................. 115
Supplemental views of Senators Allard and Wyden.................. 117
Minority views of:
Senators Baucus, Lautenberg, Moynihan, Lieberman, Boxer, and
Wyden...................................................... 119
Letters from:
Vice President....................................... 121
Administrator, Environmental Protection Agency....... 121
Secretary of the Interior............................ 122
Secretary of Agriculture............................. 122
Assistant Attorney General for Legislative Affairs,
Department of Justice.............................. 123
Chairman, Council on Environmental Quality........... 124
Assistant Secretary of Commerce for Oceans and
Atmosphere......................................... 125
Senators Baucus and Lautenberg............................... 126
Changes to existing law.......................................... 198
Calendar No. 371
105th Congress Report
SENATE
2d Session 105-192
_______________________________________________________________________
SUPERFUND CLEANUP ACCELERATION ACT OF 1998
_______
May 19, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Chafee, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
ADDITIONAL, SUPPLEMENTAL, AND MINORITY VIEWS
[To accompany S. 8]
The Committee on Environment and Public Works, to which was
referred the bill (S. 8) to reauthorize and amend the
Comprehensive Environmental Response, Liability, and
Compensation Act of 1980, having considered the same, reports
favorably thereon with amendments and recommends that the bill,
as amended, do pass.
General Statement
Introduction
The Comprehensive Environmental Response, Compensation and
Liability Act (``CERCLA'' or ``Superfund'') was signed into law
on December 11, 1980. The law was enacted in large part to
address contamination at abandoned sites and other facilities
that were not covered by the Resource Conservation and Recovery
Act (RCRA), the only Federal law in effect at the time
governing the management of hazardous waste at active
facilities. Extensive amendments to the law were enacted in
1986 in the Superfund Amendments and Reauthorization Act
(SARA). In 1990, the Omnibus Budget Reconciliation Act extended
the Superfund programs and taxes without modification. The
program authorization was extended until September 30, 1994.
The authorization for the collection of Superfund taxes expired
on December 31, 1995. These taxes a corporate environmental
income tax imposed on a broad range of businesses, a tax on
chemical feedstocks, and a tax on crude oil generated
approximately $1.5 billion per year.
CERCLA, as amended, provides, among other things, a
comprehensive legal framework for the Federal government to
respond to uncontrolled releases of hazardous substances from a
facility or vessel. It accomplishes this through a liability
scheme imposed on a broad range of responsible parties that
enables the Federal government to order responsible parties to
order responsible parties to cleanup releases or threatened
releases of hazardous substances. The law is backed up with
Federal funding, giving the government flexibility to conduct
cleanups itself and then seek reimbursement for cleanup costs
from responsible parties.
Since its enactment in 1980, CERCLA and the Environmental
Protection Agency's (EPA's) implementation of the law has been
the subject of substantial controversy. The Office of
Technology Assessment (OTA), the Government Accounting Office
(GAO), Congressional committees and environmental organizations
and others have published numerous reports criticizing, among
other things, EPA's program management, the slow pace of
cleanups, the cost of cleanups, protracted litigation involving
hundreds and sometimes thousands of potentially responsible
parties (PRPs), \1\ including individuals and small businesses,
lack of State and community involvement in cleanup decisions,
and disincentives to cleanup industrial sites known as
brownfields.
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\1\ Under CERCLA, the term ``potentially responsible party'' or
``PRP'' has come to be understood to include both those parties that
are actually determined to be liable for response costs under section
107 (also known as ``responsible parties'') and those whose liability
has not yet been resolved.
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The statistics associated with Superfund program certainly
suggest that there are too many unresolved sites; the costs are
too high; and too many parties are caught in the web of
Superfund liability: When the law was first enacted, it was
expected that only a few hundred sites would require Federal
attention and that cleanups could be accomplished with
relatively limited Federal funding. Almost 41,000 sites,
however, have been included on EPA's national inventory of
hazardous waste sites, the Comprehensive Environmental
Response, Compensation and Liability Information System
(CERCLIS). While EPA has determined that Federal action is not
warranted at this time at 30,917 sites; it has placed 1,414
sites on the National Priorities List (NPL) since 1980.
Currently, there are 1,197 NPL sites, with Federal facilities
accounting for 151 of the total. In addition, EPA has proposed
to list an additional 54 sites and estimates that 150 to 250
more sites may be added over the next 5 years. Only 162 sites
have ever been deleted from the NPL.
The costs of cleanup activities at sites also has exceeded
original expectations. The Congressional Budget Office (CBO)
estimates that cleanup costs now average approximately $22
million per site. This average is likely to increase as more
complex sites move into the cleanup phase. EPA estimates that
private parties have committed more than $14 billion to cleanup
sites under Superfund since the program began. According to a
January 1994 Congressional Budget Office study, the total
amount of public and private monies spent on Superfund from
1980-1994 is approximately $30 billion, a significant portion
of which has gone to litigation costs.
And the number of cases in litigation continues to
increase. In each year between 1992 and 1996, the Justice
Department filed 100 to 150 new cases against PRPs. Parties
named by EPA as PRPs, in turn, filed thousands of claims
against third parties, many of who are individual homeowners
who disposed of municipal solid waste, small businesses,
charitable organizations and school districts.
EPA has recognized some of the problems associated with the
Superfund program. The current Administration has undertaken
three rounds of administrative reforms. On October 2, 1995,
Administrator Browner announced 20 administrative reforms that
were intended to accomplish three main goals: (1) make smarter
cleanup choices that protect public health and the environment;
(2) reduce litigation by achieving common ground instead of
conflict; and (3) ensure that States and communities are better
informed about and more involved in the decision making process
with respect to cleanup actions. The Administration's
initiatives reflect an important first step in the effort to
improve the implementation of the law. Congressional
authorization, however, is needed to expand and improve the
Administration's reforms. Additional refinements are also
appropriate to enhance their effectiveness. By adding express
authorization for recent Administration reforms, the bill
provides clarity regarding appropriate criteria and procedures
for their implementation.
The Superfund Cleanup Acceleration Act of 1998 (S. 8)
shares the fundamental goals of the Administrations reforms and
builds upon those reforms. The bill makes significant
improvements in each of the major provisions of the law. Among
other things, the bill:
Lestablishes a ``fair share allocation process''
eliminating the unfairness of joint and several liability
and provides for orphan share funding for insolvent and
defunct parties;
Lexempts from liability altogether many small
businesses, parties whose disposed of municipal solid
waste, and generators of truly minimal amounts of waste (de
micromis parties);
Lsimplifies the remedy selection process, replacing
the rigid statutory presumption in favor of treatment and
the automatic adoption of all applicable or relevant and
appropriate environmental requirements (ARARs) with a new,
more flexible balancing test that considers: effectiveness
of the remedy; long-term reliability; short term risks to
the community; acceptability of the remedy to the
community; implementability of the remedy; and the
reasonableness of the cost;
Lallows States to assume responsibility for response
actions at non-Federal NPL sites;
Lprovides funding for grants to States, local
governments, and other qualified agencies to identify and
characterize or cleanup contaminated brownfield sites;
Lclarifies the measure of damages for a natural
resource damages (NRD) claim to include the costs of actual
restoration of the resource, the costs of providing interim
replacements for lost uses associated with the resource;
and the reasonable costs of assessing the injury; and
Lreauthorizes the Superfund program for a total of
$7.5 billion over 5 years, with orphan share to be funded
by additional mandatory spending of $1.45 billion over the
same period.
Overview of Current Law
Superfund imposes liability for response costs, natural
resource damages and the cost of any health assessment or
health effects study on four categories of persons: present
owners and operators of a Superfund facility; certain past
owners and operators; waste generators; and transporters that
arrange for the disposal of waste at a facility. Section 107(a)
creates a cause of action for cost recovery by the United
States, a State, or any other person who has incurred
recoverable costs associated with the cleanup of a site.
Section 113 also creates a cause of action by any person who
has incurred recoverable costs for ``contribution'' from any
other person who is liable or potentially liable for such costs
under section 107(a).
The law itself does not mandate strict, joint or several
liability. However, the courts have unanimously held that
Section 107 liability is strict in that it applies without
regard to fault on the part of the responsible party. \2\
Similarly, the courts have developed a uniform rule applying
joint and several liability to Section 107 in cases where the
harm caused by the release of a hazardous substance is
indivisible. Under this principle, a single party could
theoretically be held liable for all the cleanup costs at a
site. \3\
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\2\ See, e.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802,
808-809 (S.D. Ohio 1983).
\3\ See United States v. DiBiase, 45 F.3d 541, 544 (1st Cir. 1995).
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Whenever there is a release of a hazardous substance,
section 104 authorizes EPA to remove the substance and take
appropriate remedial action to protect human health and the
environment. EPA can carry out either a response action or a
remedial action itself under section 104 and, in most cases,
recover the costs from responsible parties. Alternatively, EPA
can order responsible parties to undertake a response action
under section 106. Responsible parties who refuse to comply
with a section 106 order, and cannot demonstrate ``sufficient
cause'' for noncompliance, are liable for treble damages and
civil penalties of up to $25,000 per day of noncompliance. In
practice, EPA's authority under section 106 serves an as
effective incentive for many responsible parties to enter into
administrative consent orders to conduct response actions and
avoid the costs of litigation as well as penalties.
CERCLA Section 121 governs the remedy selection process.
For a site that is listed on the NPL, a Remedial Investigation/
Feasibility Study (RI/FS) is performed to characterize
contamination at the site and identify alternative remedial
approaches. EPA then develops a remedial action plan that sets
forth the cleanup goals for the site and discusses a range of
alternative remedial actions issues to cleanup the site. EPA
must ultimately select a remedy ``that is protective of human
health and the environment, that is cost-effective, and that
utilizes permanent solutions and alternative treatment
technologies or resource recovery technologies to the maximum
extent practicable.''
In addition to liability for response costs, responsible
parties are also liable under section 107 for damages for
``injury to, destruction of, or loss of natural resources
resulting from such a release [of a hazardous substance].'' The
term natural resources is broadly defined in section 101 to
include ``land, fish, wildlife, biota, air, water, ground
water, drinking water supplies, and other such resources
belonging to, managed by, held in trust by, or otherwise
controlled by the United States, any State or local government,
foreign government, or Indian Tribe.''
Unlike actions for response costs that are filed by EPA,
natural resource damages claims are brought by Federal, State
and Tribal trustees for the natural resources within their
trusteeship. Trustees are responsible for assessing the injury
to natural resources, recovering damages from PRPs to restore
the resource, and implementing a plan to restore or acquire
equivalent resources. Any monetary damages recovered under a
natural resources claim may be used only to restore, replace or
acquire the equivalent of the injured natural resource. The
Superfund may not be used to pay for natural resource
restoration activities.
Problems and Solutions
Liability
The heart of the controversy surrounding the Superfund
program lies in its judicially-imposed scheme of strict, joint
and several liability. While this liability structure has made
it relatively easy for the government to prosecute claims for
response costs, it has also served to substantially increase
litigation, bring thousands of parties into the Superfund
process who were never intended to be included, and delay the
cleanup of countless sites.
Imposing joint and several liability has effectively
created an incentive for third party litigation. Under CERCLA's
liability scheme, EPA need only identify one or a few
responsible parties at a site, but it can still seek to recover
all of the response costs associated with the clean up of a
site, regardless of the actual contribution of those parties to
the site. Those responsible parties, in turn, have every
incentive to try to involve as many other PRPs as possible in
order to share the costs and minimize their own exposure. Thus,
at some sites, responsible parties have filed third party
actions against thousands of PRPs, often including individuals
and small businesses. In many cases, those additional parties
contributed only non-hazardous, household waste, or truly
minimal amounts of hazardous waste (de micromis contributors)
to a site. Even if those parties are ultimately able to settle
the claims, they incur significant and unnecessary litigation
expenses.
There is broad agreement that the statute must specifically
exempt certain categories of PRPs who are now caught in the
Superfund liability web.
For small businesses and other PRPs who contribute only a
small amount of waste to a site so-called de minimis
contributors improvements must be made to the settlement
process. Current law authorizes EPA to enter into expedited
settlements with de
minimis parties. These settlement agreements then provide
protection to the settling parties from any third party
litigation, as well as from any further cost recovery action by
EPA. Until recently, however, EPA has been slow to take
advantage of this tool. To date, EPA has negotiated de minimis
settlements at only 171 sites covering approximately 15,000
parties.
A significant number of Superfund sites are the result of
disposal activities at former municipal landfills. Although the
vast majority of the materials in these facilities is ordinary
household trash and non-hazardous industrial waste, small
amounts of hazardous materials are also found (e.g., mercury in
batteries or chemicals and solvents in household cleaners).
Because municipalities and local governments operated many of
these landfills, they are subject to Superfund liability.
Similarly, the individuals and businesses that sent their trash
to these facilities may also be held liable. This
interpretation of the liability provisions has been condemned
as unfair and, to a large extent, unintended. The bill
addresses the issue of liability for activities relating to the
disposal of municipal solid waste by capping the liability of
owners and operators of disposal facilities and exempting
parties that disposed of municipal solid waste.
Significant concerns have also been raised about the
transaction costs that responsible parties incur as a result of
CERCLA litigation. Transaction costs include legal expenses and
any other costs not directly associated with cleanup
activities. According to a 1994 study by the RAND Corporation,
transaction costs constitute between 30-36 percent of the total
Superfund spending by private parties. The percentage of
transaction costs is even higher in the context of total
amounts spent by insurance companies for Superfund-related
claims. Much of the litigation under Superfund relates directly
to the issue of whether Superfund response costs are covered by
the insurance policies that were typically issued until before
CERCLA was enacted. Because of that litigation, the 1994 RAND
study found that 88 percent of the Superfund-related expenses
of insurers went to transaction costs, and only 12 percent to
actual cleanup.
The bill will reduce transaction costs by reducing
litigation. The bill's fair share allocation system is expected
to facilitate the orderly resolution of many claims against
PRPs without the delay or added costs of judicial proceedings.
Eliminating the liability of thousands of small PRPs and
capping the liability of others at codisposal sites should
further reduce transaction costs and avoid much of the third
party litigation that occurs today.
Remedy Selection
The primary criticism of CERCLA's remedy selection process
is that it results in remedies that cost too much and that take
too long to complete. The subsidiary effect of this is that
responsible parties are more likely to try to challenge agency
decisions or to delay the final selection and implementation of
a remedy. Also, the more costly the remedy, the more likely it
is that responsible parties will seek to include other
potentially PRPs to share the costs.
In large part, the focus of the criticism has rested on the
statute's preference for treatment. In 1986, Superfund was a
relatively new program. Expectations were high that cost-
effective treatment technologies would be developed. In
practice, however, in a number of cases, effective treatment
technologies have not been readily available or they have been
inordinately costly. Moreover, in some cases, the preference
may not be appropriate. For example, both the National Academy
of Sciences and EPA have recognized that stabilizing and
capping some waste sites may provide a more cost-effective and
realistic way to protect public health than treatment. EPA has
developed guidance documents in an effort to provide better
criteria for the application of the preference for treatment.
The fundamental problem, however, is that the preference for
treatment is still the law. Until the statute is revised, EPA's
authority to use its discretion in applying the preference is
limited.
The bill addresses this problem by replacing the statutory
preference for treatment with an emphasis on the long-term
reliability of a remedy. This new approach would provide EPA
with considerably more discretion to select among remedies that
include the use of containment options and institutional and
engineering controls. In many cases, applying these management
options may substantially reduce the costs of a remedial
action, without jeopardizing human health or the environment.
The costs of remedial actions have also been driven up by
CERCLA's requirement that cleanup standards incorporate ARARs.
There is little dispute that a remedial action should comply
with any Federal or State requirements regarding the safe
cleanup level for a particular contaminant. It is less evident,
however, that cleanup decisions should always satisfy other
``relevant or appropriate requirements'' for a contaminant. In
some cases, it is difficult even to identify the ``relevant and
appropriate requirements.'' This can result in cleanup goals
and remedies that differ from one site to another. Even within
a single State, Superfund remedial program managers may differ
on the issue of whether a particular State requirement is
``relevant'' to a Superfund cleanup. This inconsistency
contributes to uncertainty, protracted site evaluation,
extensive debate over cleanup goals, higher cleanup costs, and
an overall delay in completing cleanups.
The bill would delete the law's ``relevant and
appropriate'' language, requiring instead that remedies comply
with legally applicable standards and attain specified human
health and environmental protection levels.
There is continuing uncertainty regarding the extent to
which the cost of a remedy is to be considered in the remedy
selection process. Current law requires both that the Agency
consider cost in assessing remedial alternatives, and that
response actions be cost-effective. EPA guidance further
clarifies how cost-effectiveness is determined and how cost is
factored into remedial action alternative balancing. The PRP
community, however, claims that cost considerations are often
ignored or minimized in EPA's remedy selection decision
process. The bill reaffirms the significance of cost
considerations in the remedy selection process, adding a new
cost factor for consideration. Under the bill, EPA must
consider, among other things, the reasonableness of the cost of
a remedy.
To further minimize unnecessary costs associated with some
cleanups, the bill expressly authorizes EPA to take into
consideration the reasonably anticipated future land use of a
site. Applying appropriate future use standards and
restrictions allows responsible parties to tailor their cleanup
actions and resources to address the real risks that may be
posed by the site. If a site is to be redeveloped for
industrial purposes, for example, there is little dispute that
responsible parties should not have to clean up the site to the
level that would be required if it were to be developed for
residential purposes. This is consistent with recent EPA policy
that states that EPA will no longer assume that a site will be
used for residential purposes, unless a determination is made
to that effect. Institutional controls may be used in
conjunction with land use assumptions to ensure that adequate
protection is provided when contamination remains after cleanup
is completed.
Brownfields
Fear of potential or actual Superfund liability has proven
to be a substantial obstacle to the redevelopment of
contaminated industrial property. In a 1996 Report to Congress,
GAO concluded that ``Superfund's liability provisions make
brownfields more difficult to redevelop, in part, because of
the unwillingness of lenders, developers, and property owners
to invest in a redevelopment project that could leave them
liable for cleanup costs.'' (Superfund: Barriers to Brownfield
Redevelopment at 2, GAO RCED-96-125, June 1996). As a result, a
number of contaminated, and in some cases uncontaminated,
existing industrial sites remain vacant and unused while
companies develop new facilities in suburban and rural
``greenfields'' to avoid the specter of potential environmental
liability.
The redevelopment of brownfields is largely an urban
concern, although one that affects communities of all sizes.
GAO has estimated that there are approximately 150,000
brownfield acres in major U.S. cities. The U.S. Conference of
Mayors conducted a survey in 1996 that identified more than
20,000 brownfields sites in just 39 cities alone. In that
survey, 33 cities estimated that they lose as much as $386
million in tax revenues each year because of lost development
opportunities. There is broad consensus among State and local
governments that reforms to promote brownfield redevelopment
must be a priority of any Superfund reauthorization.
One of the fundamental obstacles identified by State and
local government officials to the redevelopment of brownfields
is the lack of funds for site identification and cleanup. In
some cases, a relatively inexpensive site assessment will
reveal that a site for potential redevelopment is, in fact,
uncontaminated or requires only minimal cleanup. Yet, unless
the site assessment is conducted, that site will generally
remain unused because of the fear of liability. A site
assessment can remove that fear. The bill, therefore, provides
$75 million in annual funding for EPA to establish a revolving
loan and grant program for brownfield characterizations and
assessments. The funds can also be used to cleanup sites, again
helping eliminate disincentives to redevelopment. This
relatively modest investment to capitalize revolving loan funds
can be leveraged against other sources of funding.
The bill builds upon the State voluntary cleanup programs
and also provides incentives to encourage voluntary cleanups of
sites. First, it authorizes $25 million per year to provide
technical and financial assistance to States to establish and
administer voluntary cleanup programs. Many States have
established voluntary cleanup programs to encourage landowners
to address less contaminated sites and promote commercial
development. The underlying principle is that sites that have
only low levels of contamination are less likely to be cleaned
up if the burdens associated with cleanup are too high. Given
the fact that EPA has determined that Federal action is not
warranted at over 30,000 sites, it is clear that if these sites
are to be addressed at all, it will probably be through State
programs. By streamlining the cleanup process, State voluntary
programs can effectively increase the number of sites that are
actually cleaned up.
Second, it provides finality for cleanups conducted under a
State program. The incentive for landowners for agreeing to
conduct cleanups is the assurance that they receive that the
property has been cleaned up to the State's satisfaction and
they will not be subject to further enforcement for that site.
State Role
States have gained substantial experience since the
enactment of the 1986 amendments to Superfund in managing
cleanups at contaminated sites. Most States have enacted their
own ``mini-Superfund'' laws, many with far-reaching cleanup and
liability provisions. The Environmental Law Institute surveyed
programs across the country and found that only Nebraska and
the District of Columbia do not have some type of cleanup fund
available to help pay for site cleanups. (See, An Analysis of
State Superfund Programs: 50-State Study. The record also
reflects that States are actively implementing the laws on
their books. The Association of State and Territorial Solid
Waste Management Officials (ASTSWMO) reports that, as of March
1996, 31 States were conducting emergency removals; 32 were
conducting other removal actions; 34 were conducting remedial
actions; and 34 were engaged in operation and maintenance at
non-NPL sites. In light of the States' increased involvement in
site cleanups under State programs, as well the simple fact
that EPA lacks the resources to address the universe of
contaminated sites, States argue that they should be authorized
to play a larger role in implementing Superfund.
Under current law, the State's role in Superfund process is
fairly limited. Most significantly, EPA is ultimately
responsible for the selection of a remedy at an NPL site.
Before undertaking any remedial action, EPA must consult with
the affected State, but the State's concurrence is not a
prerequisite to proceeding. Similarly, section 121 requires EPA
to consider ARARs, including State environmental standards, but
EPA may waive ARARs under certain limited conditions. (States
can challenge a waiver.) As a final recourse, a dissatisfied
State can hold up a Fund-financed cleanup by refusing to pay
its 10-percent cost share, which is a prerequisite to
proceeding with a remedial action.
Although the law does not authorize delegation of the
Superfund program, the 1986 amendments expanded the authority
of EPA to enter into a cooperative agreement with a State
allowing the State
to act as the lead agency at NPL sites. Under a cooperative
agreement, a State effectively assumes responsibility for
implementing response actions in consultation with EPA. A State
may recommend a proposed remedy, but EPA approval is still
required. The decision of whether to enter into a cooperative
agreement, moreover, rests with EPA.
Having ``dual masters'' Federal and State regulators
involved at a sites has led to confusion and uncertainty in
some cases. Disagreements between the regulators regarding the
application of ARARs or the ultimate selection of the remedy,
for example, can significantly delay a cleanup and increase the
costs. Similarly, a decision by EPA to waive a State cleanup
standard can leave open the possibility that the State will
seek to impose additional cleanup requirements under its State
law.
The bill recognizes that many States now have both the
resources and the technical expertise necessary to conduct and
oversee remedial actions at NPL and NPL-caliber sites. It
provides that EPA may either delegate responsibility for the
Superfund program to a requesting State or, alternatively,
authorize the State program to operate in lieu of the Federal
Superfund program. Whether the State operates under a delegated
or an authorized program, it must still ensure that human
health and the environment are protected. Under this new
authority, States will have the ability to make their own
decisions regarding the selection of remedial actions. They
will have access to the Federal Fund to carry out the program.
Significantly, States will assume sole responsibility for
enforcement of the remedy at a site (except under exceptional
circumstances). This should eliminate one of the principle
concerns that responsible parties have raised about State-led
cleanups.
Community Participation
While much of the criticism of the Superfund program has
come from responsible parties, the communities that are
affected by the listing of sites and delays in cleanup
decisions have also raised concerns about the implementation of
the program. There is general agreement that early involvement
of affected communities and stakeholders in the Superfund
decision making process may reduce conflicts and delays.
However, community advocates have testified that citizen
involvement is not yet a meaningful part of the process. In
order to accomplish that, changes must be made to the law to
enhance citizen participation in the decision making process.
Current law generally provides that remedial action plans
are to be made available for review and comment by the public.
More significant is the authorization for technical assistance
grants (TAGs) of up to $50,000 to be made available to citizens
potentially affected by Superfund remedial actions. TAGs are
designed to provide local communities with funding to evaluate
potential risks to human health and the environment posed by
contamination at a Superfund site, as well as by any
alternative remedies proposed. They are intended to enable
citizens to participate more meaningfully in the remedy
selection process. Concerns have been raised, however, that the
process for obtaining TAGs is too cumbersome and therefore
limits their effectiveness.
The bill makes several important improvements to the
community participation provisions of Superfund to address
these concerns. First, it establishes Community Advisory Groups
(CAGs) consisting of local citizens. These CAGs are intended to
serve as a conduit of information for local communities,
enabling them to play a more active role during the remedial
action planning and implementation process. The bill also
streamlines the process for obtaining TAGs and eliminates the
20-percent match requirement of current law.
Natural Resource Damages
Although the focus of attention and controversy over the
past few years has been on issues relating to cleanup
liability, the filing of an increasing number of NRD claims has
raised concerns about the scope and implementation of the NRD
program. One witness during Committee hearings characterized
the NRD program as ``an awakening sleeping giant of
environmental liability.''
The fundamental problem is that the statute does not
currently provide a clear statement as to what costs a
responsible party will be held liable for under the NRD
program. Regulations and case law, in contrast, provide for
recovery of damages for: (1) restoration costs (i.e., the sums
necessary to restore the resource to the condition it would
have been in prior to the release of a hazardous substance or
the costs of acquiring equivalent resources); damages
associated with lost use of the resource (e.g., the costs of
providing alternative fishing opportunities in a case where a
fishing stream is contaminated); and (3) damages associated
with nonuse (or passive use) values. This last category of
damages, which are based on the premise that the public can
associate a specific value even to resources that it does not
use, is the most controversial. Without further statutory
guidance, responsible parties fear that trustees may use the
NRD program, and the recovery of nonuse damages in particular,
to seek substantial and potentially arbitrary monetary damages.
At this time, there is limited information regarding actual
NRD claims or substantial documentation of problems. The lack
of information is due, in part, to the relative infancy of the
program. To date, relatively few NRD claims have ever been
resolved and most of those could be characterized as minor. GAO
has found that most NRD settlements have been less than
$500,000, however, GAO has identified up to 20 sites where the
Federal NRD claims at could be exceed $50 million. In some
cases, however, damages may be in the range of hundreds of
millions and even billions of dollars. GAO, for example, has
estimated that DOE's potential liability for natural resource
damages, not including the most contaminated sites, could be as
high as $13 to $20.5 billion. At non-Federal sites, one of the
larger NRD claims involves the Coeur d'Alene Basin. The Tribal
trustee there has filed a claim seeking $1 billion in damages,
and the Justice Department has filed a separate claim seeking
$600 million on behalf of the Federal trustees for alleged
injuries to resources stemming from mining activities.
Critics of the NRD program raise a number of legitimate
concerns. First, as noted above, concerns have been raised that
the statute does not provide a clear statement of the measure
of damages. As a result, responsible parties believe that
trustee may seek damages for injuries that were never intended
to be covered. They argue, for example, that the authors of the
original law never intended to provide for the recovery of non-
use values. Similarly, they argue that the NRD program was
never intended to require the removal of every molecule of a
hazardous substance or the restoration of a resource to
pristine conditions.
This legislation attempts to address these concerns by
providing an affirmative statement of the scope of liability.
The intent is to clarify that the purpose of the NRD program is
to restore natural resources, but not to serve as a second
cleanup program or as the mechanism to assess and collect
arbitrary sums of damages. Restoration measures are intended to
restore a resource to the condition that would have existed but
for the release of a hazardous substance (not necessarily
pristine conditions). Consistent with this objective, the bill
also clarifies the prohibition against double recovery.
Critics also argue that the procedures used to assess
injury to natural resources and select restoration measures are
flawed. The selection of restoration measures, they suggest,
often fail to take into consideration cost and may even
disregard the results or expected results of any remedial
action. Furthermore, they suggest that trustees frequently rely
on inaccurate information and general assumptions without
sufficient consideration of site-specific information.
The bill addresses these concerns, establishing a new
process for trustees to consider alternative restoration
measures and select among those that achieve an appropriate
balance among the following factors: cost-effectiveness;
technical feasibility; and the time period in which restoration
is likely to be achieved. The unique intrinsic values of a
resource may also be considered in the selection of a
restoration alternative. New regulations would be issued to
implement this new process, as well as to clarify that injury
assessments should be based on scientifically valid protocols
and use site-specific information whenever it is readily
available.
Federal Facilities
The role of States in cleanups at Federal facilities has
been the subject of ongoing controversy since the 1986
amendments.
States argue that these facilities should be required to
achieve the same level of cleanup as non-Federal facilities.
Accordingly, the bill makes a significant change to strengthen
the State role at Federal facilities. The bill allows States to
seek delegation authority to implement the Superfund program at
Federal facilities. This new authority addresses the State
concern that they be given the same decision-making authority
with respect to Federal facilities as they are given under this
bill at non-Federal facilities. In order to preserve the
legitimate Federal interest in some level of national
consistency, however, the bill does not allow State programs to
be run in lieu of the Federal program at Federal facilities.
Currently, of the 1197 sites on the Superfund list, 151 are
Federal facilities. Federal facilities include Federally-owned
weapon research, development, test and evaluation laboratories;
military training and maintenance facilities; nuclear
production reactor sites, and other facilities including those
being surplused through the Base Realignment and Closure (BRAC)
process. Federal facilities, particularly those controlled by
the Department of Defense (DOD) and the Department of Energy
(DOE), have significant potential liability under CERCLA.
While Federal agencies are generally required to comply
with CERCLA to the same extent as private parties, EPA's system
for identifying high-priority sites (the Hazard Ranking System)
has resulted in a large number of DOE and DOD facilities being
assigned a high-priority status. The costs associated with
cleaning up these facilities is likely to be substantial. In
some cases, moreover, the nature of the wastes at a facility
may make cost-effective cleanup difficult or impossible.
SECTION-BY-SECTION SUMMARY
Section 1. Short Title; Table of Contents
Section 1 includes the citation of the short title of the
bill as the ``Superfund Cleanup Acceleration Act of 1998'', and
provides a table of contents for the bill.
TITLE I--BROWNFIELDS REVITALIZATION
Sec. 101. Brownfields
Summary
New Section 127 of CERCLA provides funding to identify and
clean up properties that are abandoned or underutilized because
of unresolved environmental concerns. A ``brownfield facility''
is defined as ``real property, the expansion or redevelopment
of which is complicated by the presence of a hazardous
substance.'' Any portion of a property that is listed or
proposed for listing on Superfund's NPL is excluded from the
assistance provided under this section if there is an ongoing
cleanup under Federal law.
This section provides $75 million annually for EPA to
establish a grant program for brownfield characterizations,
assessments and response actions. Entities that are eligible to
receive the grants are State and local governments, quasi-
governmental land clearance authorities, regional councils,
State-chartered redevelopment agencies and Indian Tribes. A
mechanism to permit States to capitalize and administer
revolving loan funds for brownfields is provided. The maximum
grant amount for any individual facility may not exceed
$350,000.
Discussion
This title is structured to direct more public and private
resources toward restoring contaminated properties that are not
listed on the NPL. In the 17 years since its inception, some
1,414 sites have been listed on the NPL. That is less than 4
percent of the more than 41,000 contaminated sites known to the
Federal government. Many States have identified contaminated
sites numbering up to ten times the number of NPL sites in
their States. Communities and States want to redevelop these
sites, revitalize urban economies and protect open spaces.
Uncertainties about Federal liability under CERCLA can
raise the cost of financing redevelopment projects or stifle
redevelopment entirely. Developers often choose to avoid sites
with potential for future Federal liability because the
completion of a cleanup under a State law does not protect them
from the potential for additional Federal liability. Delays and
uncertainties are caused by the dual State and Federal
oversight process as well. Taken together, dual oversight and
potential Federal liability often undermine efforts to restore
and redevelop contaminated properties.
EPA administratively created the existing Superfund
brownfield program. No provision in the current statute
specifically authorizes the type of activities that have come
to be known as brownfield cleanup and redevelopment. The only
enacted brownfield provisions are found in the Taxpayer Relief
Act of 1997 (Public Law 105-34). That law makes brownfield
cleanup costs tax deductible. This tax break is estimated by
the Joint Committee on Taxation to cost the Treasury $100
million annually. It expires on December 31, 2000.
Current EPA practice provides a limited number of grants of
up to $100,000 annually ($200,000 total) to help communities
address brownfields. The grants are for site assessment and
related activities not cleanups. Recently, EPA has initiated a
second phase of its brownfield program that will fund remedial
activities at brownfield sites.
New section 127 codifies and builds on EPA's brownfield
program. The definition of the term ``brownfield facility'' in
S. 8 is intended to foster reuse of abandoned or idled sites.
The primary feature of section 127 is the assistance provided
to eligible entities for the characterization, assessment and
cleanup of brownfield facilities. The term ``eligible
entities'' means local governments, quasi-governmental land
clearance authorities, regional councils, State-chartered
redevelopment agencies and Indian Tribes. Any entity not in
compliance with an administrative or judicial order issued
under CERCLA, the Resource Conservation and Recovery Act
(RCRA), the Clean Water Act (CWA), the Toxic Substances Control
Act (TSCA) or the Safe Drinking Water Act (SDWA) is excluded.
Section 127(b) directs the Administrator to create a grant
program for site characterization, assessment and performance
of response actions at brownfield facilities. Eligible entities
can use grants for site characterization, assessment or
response actions or to capitalize a revolving loan fund for
those purposes. Site characterizations can include a process to
identify and inventory potential brownfield facilities. This
provision recognizes that some investigation may be needed to
determine if a parcel qualifies as a brownfield facility. No
individual facility may receive in excess of $350,000 under
this section. The Administrator may waive the limit based on
site-specific factors, such as the level of contamination, the
size of the facility, or the status of ownership of the
facility. In order to assure that program benefits are shared
fairly, the Administrator should only invoke the waiver in
exceptional circumstances. Grant funds may not be used to pay
fines, penalties or administrative costs.
Federal brownfield expenditures are appropriately limited
to sites where, due to the threat of real or perceived
contamination, no reuse is likely and no Federally-directed or
funded cleanup is underway or imminent. The language ensures
that the limited resources available under this section are not
expended on sites that will be cleaned up under other
provisions of Federal law. Thus, the term ``brownfield
facility'' excludes any property: (1) where there is an ongoing
Superfund removal action; (2) that has been listed, or proposed
for listing on the NPL; (3) where there is ongoing cleanup work
prescribed by an administrative or judicial order under CERCLA,
RCRA, CWA, TSCA or SDWA; (4) that is a hazardous waste disposal
unit for which a closure notification has been submitted, and
that has closure requirements specified in a closure plan or
permit; (5) that is Federally-owned or operated; or, (6) that
has received assistance from the Leaking Underground Storage
Tank (LUST) Trust Fund. The bill recognizes, however, that
excluded sites may nonetheless have significant redevelopment
potential. Accordingly, a savings clause in section
127(a)(1)(C) provides that exclusion of a site from the
definition of ``brownfield facility'' under section 127 shall
have no effect on eligibility for assistance under any other
provision of Federal law. Therefore, if an agency (e.g. the
Department of Housing and Urban Development) were to establish
a brownfield assistance program, exclusion from funding under
section 127 would not preclude that agency from providing
assistance to a facility otherwise excluded under this section.
In addition to direct grants, EPA can distribute brownfield
funds to certain eligible entities to capitalize a revolving
loan fund. Repayment of brownfield loans from successful
redevelopment projects will extend the life and expand the
utility of Federal expenditures under this program. Section
127(c) allows EPA to enter into agreements with States to make
revolving loan fund capitalization grants. Such agreements may
specify grant use requirements, including letters of credit. If
a State elects not to establish a revolving loan fund, EPA may
enter into a capitalization grant agreement with a city, county
or a regional association of governments provided that the area
covered by the agreement has a population greater than 1
million people. Eligible entities in an area covered by an
agreement would receive assistance from the loan fund instead
of assistance from EPA under the grant program in section
127(b).
A State, city, county or regional association must
establish a brownfield revolving loan fund (referred to as a
``State loan fund'') to receive a capitalization grant. The
grant to a State loan fund is available for obligation for 2
fiscal years. EPA must conduct a regulatory negotiation to
develop an allotment formula for State loan funds that reflects
the number of potential brownfield facilities in the areas
covered by agreements and the level of effort made by each
State, city, county or regional association. Sufficient funds
must be reserved to issue direct grants under section 127 (b)
in areas not covered by the revolving loan fund. EPA must
update the formula at least biennially. Any funds not obligated
within 2 years shall be reallotted.
Money in a revolving loan fund can be used only for
providing loans, as loan guarantees, or as a source of reserve
and security for leveraged loans. Funds from capitalization
grants may not be used for acquiring real property.
Each entity that has entered into a capitalization
agreement is required to prepare, after providing for public
review and comment, an annual plan that identifies the intended
uses of the money available in the State loan fund. This
intended-use plan must include a description of the projects to
be assisted, the expected terms of financial assistance, the
criteria and methods for the distribution of funds, a
description of the financial status of the State loan fund, and
short-term and long-term goals. Each State loan fund must be
established, maintained, and credited with repayments and
interest, and the fund corpus shall be available in perpetuity.
Monies in the fund not required for current obligation or
expenditure shall be invested in interest bearing obligations.
A State loan fund may provide additional subsidization,
including forgiveness of principal, to an eligible entity. The
total amount of subsidies made from the corpus or
capitalization grant may not exceed 30 percent of the
capitalization grant received by the State loan fund for that
year. The State, city, county or regional association of
governments must provide at least a 20 percent match before
they can receive Federal grant payments under this section.
The cost of administering the State loan fund shall be
borne by the State, city, county or regional association. This
is in addition to the match referred to above. Except as
additionally limited by State law, the State loan fund use is
limited to making loans under certain conditions. The interest
rate for the loan must be less than or equal to the market
interest rate. Interest-free loans are permissible. The
principal and interest payments must commence not later than 1
year after the project is completed. The loan must be fully
amortized not later than 10 years after project completion. The
State loan fund must be credited with all payments of principal
and interest on each loan. In addition, loan funds may be used
to guaranty or purchase insurance in order to improve credit
market access or reduce the interest rate. Lastly, loan funds
may be used to provide a source of revenue or security for the
payment of principal and interest on revenue or general
obligation bonds issued by the State, city, county or regional
association of governments if the proceeds of the sale of the
bonds will be deposited in the State loan fund.
EPA must issue guidance and regulations on efficient
operation of the fund. Each State, city, county or regional
association must submit a report to EPA every 2 years on its
activities, and include in that report the findings of the most
recent audit of the fund. EPA shall periodically audit all
State loan funds established under this section in accordance
with procedures established by the Comptroller General.
Section 127(d) includes requirements for applications by
eligible entities for assistance under section 127(b).
Applications are made to EPA regional offices. The
Administrator can prescribe the form and contents of the
application. A single application can include grant requests
for one or more brownfield facilities. The Administrator is
directed to coordinate with other Federal agencies when
developing application requirements under this section so that
applicants are made aware of assistance available from other
Federal agencies for related purposes.
The Administrator is directed to evaluate applications
using ranking criteria in section 127(d)(3), and award grants
to eligible entities submitting the highest ranking
applications. The ranking criteria must emphasize the
beneficial reuse of the blighted property. The ranking criteria
also give preferential recognition to applications for projects
that leverage other sources of funding as part of a project,
stimulate economic development in the project area, create
additional park, greenway or recreational acreage, or are
located in areas with small populations or in low-income
communities that cannot draw on other sources of project
funding.
The total funding level for the grant program in section
127(b) and the loan program under section 127(c) is $75 million
per year.
Sec. 102. Assistance for Qualifying State Voluntary Response Programs
Summary
Section 102 of the Superfund Cleanup Acceleration Act
creates a new section 128 that authorizes $25 million per year
for 5 years to provide technical and financial assistance to
States to maintain, establish and administer voluntary response
programs. Qualifying States would receive a minimum allocation
of at least $250,000 per year.
Discussion
This section is intended only to authorize funding for
technical and financial assistance. It does not create a
process for EPA's approval of State voluntary response
programs. Status as a qualifying State under this section has
no effect on any other provision in Superfund, including
Federal enforcement in the case of a release subject to a State
plan in new section 129.
The vast majority of the hazardous sites on CERCLIS will
not be cleaned up by the Superfund program. Instead, most sites
will be cleaned up under State authority. For example, of
California's more than 700 contaminated sites, only 94 are
currently listed on the NPL. The remaining sites will likely be
addressed under California's program. In recognition of this
fact, and the need to create and improve State cleanup
capacity, new section 128 provides technical and financial
assistance to States to establish and expand voluntary response
programs. In order for a State to qualify to receive a grant
under this section for an existing program, it must demonstrate
that the program includes the elements listed in section
128(b). A State that requests a grant to establish a new
voluntary response program will be eligible if it notifies the
Administrator of its intent to establish a qualifying program.
The Administrator may develop procedures for allotting funds to
qualifying States.
Sec. 103. Enforcement in Cases of a Release Subject to a State Plan
Summary
New section 129 places limitations on the circumstances
under which Federal enforcement authority may be used when a
release of a hazardous substance occurs at a facility subject
to a State plan. Enforcement action under Superfund is
prohibited at a facility subject to a State remedial action
plan unless the State requests assistance or the Administrator
of EPA finds that other exceptional circumstances exist. At a
facility not subject to a State remedial action plan, the
President shall provide notice to the State within 48 hours
after issuing a section 106(a) administrative order.
Discussion
One of the most often cited concerns regarding brownfield
redevelopment is the fear of ongoing Federal liability after a
State cleanup is completed. Overlapping State and Federal
responsibilities have consistently undermined cleanup and
economic development goals. Several attempts to resolve this
issue administratively, including a 1995 draft directive on the
Federal-State relationship at sites undergoing cleanup in State
programs, have failed. Subsequent to the failure of that
effort, EPA began entering into memoranda of agreement (MOAs)
on a State-by-State basis. MOAs were used to define the scope
of the States' authority and the conditions under which the
Federal government might use its Superfund enforcement
authority at sites at which response actions were conducted
under State cleanup laws. The precise statement of conditions
under which Federal enforcement would be permitted varied in
several of the early MOAs. In 1995, EPA issued interim guidance
to standardize MOAs. On August 1, 1997, EPA issued its Final
Draft Guidance for Developing Superfund Memoranda of Agreement
(MOA) Language Concerning State Voluntary Cleanup Programs.
This guidance was later withdrawn by EPA in December 1997,
because of strong State criticism over provisions requiring EPA
approval of State programs. States oppose Federal approval of
State cleanup programs that address sites the Federal
government is not likely to address.
The bill establishes limits on the ability of the Federal
government to intervene at facilities where States are
proceeding with cleanup activities under their own programs.
Federal cleanup resources are limited and most States operate
successful cleanup programs. States now conduct the
overwhelming majority of response actions. The Federal
government should, therefore, defer to a State at sites not on
the NPL unless a State's inability or unwillingness to take
appropriate action results in a public health or environmental
emergency. In such cases, Federal action is appropriate to
supplement, or take the place of, State action. However, there
is little evidence that suggests that States are likely to
assert exclusive jurisdiction over facilities at which they are
unwilling or unable to effect appropriate cleanups.
Section 129 bars Federal action (subject to limited
exceptions discussed below) at a facility where a response
action ``is being conducted or has been completed under State
law.'' The definition of ``facility subject to a State
cleanup'' from section 127(a)(3) is applied here. A facility
subject to a State cleanup is one that is not listed or
proposed for listing on the NPL and meets one of the following
criteria: a State cleanup has proceeded without any Federal
involvement; EPA archived the site from its CERCLIS database;
the site was included on CERCLIS prior to enactment of the
Superfund Cleanup Acceleration Act of 1998 and it is not listed
or proposed for NPL listing within 2 years; or the site is
added to CERCLIS after the date of enactment and 2 years have
elapsed since the earlier of the CERCLIS listing or the
issuance of an order under section 106(a) of CERCLA. Thus,
sites at which Federal response actions have been considered
but not taken, and sites where the Federal government has not
been involved at all, are covered by this section.
To be entitled to the bar on Federal enforcement, a
facility must also be subject to an ongoing or completed State
response action. The bar in new section 129(a)(1) provides
that, in the case of a release of a hazardous substance at a
facility subject to a State cleanup, no person (including the
President) may use any authority in CERCLA to take an
enforcement action against any person regarding any matter that
is within the scope of a response action that is being
conducted or has been completed under State law. A savings
clause permits parties to continue to bring CERCLA cost
recovery actions for pre-enactment response costs that
otherwise would be barred.
The bar on Federal enforcement is subject to limited
exceptions set forth in section 129(a)(2). First, a State can
request that a Federal response action be taken. Second, the
Administrator can initiate an action if a release or threat of
release constitutes a public health or environmental emergency
under CERCLA section 104(a)(4), provided that the State is
unwilling or unable to take appropriate action. In that case,
the Administrator must first give the Governor notice and an
opportunity to take action. Third, the Administrator can
determine that contamination from a facility has migrated
across a State line, necessitating further response action to
protect human health and the environment. The fourth exemption
applies to a facility at which all State response actions have
been completed. If such a facility presents a substantial risk
that requires further remediation to protect human health or
the environment (as evidenced by newly discovered information
about the contamination, the discovery of fraud, or a failure
of the remedy or change in land use that gives rise to a clear
threat of exposure) the Administrator can lift the bar upon
determining that the State is unwilling or unable to take
appropriate action.
New section 129(b) establishes a new notification
requirement whenever EPA takes an administrative or enforcement
action at any facility. This permits the Federal and State
governments to identify and resolve issues relating to the
applicability of the enforcement bar in section 129(a)(1). The
section requires EPA to notify a State of its intent to
undertake an administrative or enforcement action at a facility
where there is a release or threatened release of a hazardous
substance prior to taking such action. The State has 48 hours
to respond to the notice and inform EPA if the site is
currently, or has been, subject to a State remedial action. The
enforcement bar applies if the site is being addressed under a
State program. At a facility not subject to a State remedial
action, the President shall provide notice to the State within
48 hours of issuing a section 106(a) administrative order. This
is simply a notice requirement and has no effect on the
Federal-State relationship at the facility. In the situation
where a release or threatened release constitutes a public
health or environmental emergency under section 104(a)(4), the
Administrator can take any appropriate action immediately. The
Administrator must still give notice to the State, but there is
no requirement to await State acknowledgment.
The purpose of applying the heightened standard from
section 104(a)(4) is to provide a clear distinction between
State and Federal responsibilities at sites not included on the
NPL and that ordinarily will be addressed by the States. In
general, remedial actions, whether under the direction of the
State or Federal government, are intended to address situations
where there is an imminent and substantial endangerment.
Allowing EPA to second guess cleanup decisions at sites being
addressed by the States simply because there is an imminent and
substantial endangerment would undermine the primary goal of
the first two titles of this bill to clarify limits of State
and Federal responsibility. However, EPA should be able to
reassert its authority over a site where State action is
substantially failing to achieve the appropriate level of
protection. The heightened test for Federal intervention
achieves an appropriate balance. It enables a State to take
full responsibility for remedial action decisions at sites
being cleaned up under State law, as well as for actions
covered by delegated or authorized authorities transferred to
the State. At the same time, it enables EPA to act if the
State's actions are deficient to the point that an emergency
develops. This is only one of several methods permitted in the
bill for EPA to reassert its authority over a site.
Section 129(d) provides a transition rule for existing MOAs
between EPA and the States, preserving their validity until
they expire under their own terms. This is important because
some of these MOAs address sites outside the scope of section
129, such as proposed and listed NPL facilities. This section
also preserves the Administrator's authority to enter into new
agreements regarding Federal-State relations at those sites
that are not covered by section 129(a)(3). This would allow new
MOAs to address facilities listed or proposed for listing on
the NPL.
Sec. 104. Contiguous Properties
Summary
Section 104 provides liability protection for landholders
whose property may be contaminated by a contiguous NPL site if
they did not contribute to the contamination. These landholders
must cooperate with the enforcement authority (EPA or the
State) and provide facility access for site cleanup activities.
Discussion
New section 107(o) is added to Superfund's liability
section to clarify that a person who owns or operates real
property that is contaminated by a hazardous substance that has
migrated from another person's land will not be considered to
be a potentially liable owner or operator under section 107, so
long as they meet certain conditions. The provision is similar
to EPA guidance on the topic entitled Final Policy Toward
Owners of Property Containing Contaminated Aquifers (OSWER
Memorandum dated May 24, 1995), which clarifies that EPA will
not bring enforcement actions against owners and tenants of
property that has been impacted by contaminated groundwater
migrating from a neighboring facility.
Sections 107(o)(1)(A) and (B) establish the conditions that
must be met for the liability protection to apply. First, the
person can not have caused, contributed or consented to the
release or threat of release. Second, the person must not be
affiliated through familial or corporate relationship with
another party that is or was a PRP at the facility. Third, the
person must have exercised appropriate care with respect to
each hazardous substance found at a facility by taking
reasonable steps to stop any continuing release, prevent any
threatened future release and prevent or limit human or natural
resource exposure to any previously released hazardous
substance.
The ``appropriate care'' standard applied to owners and
operators under this section is a different standard of care
than the ``due care'' standard required for the third party
defense found in existing CERCLA section 107(b)(3). Section
107(o) protects parties that are essentially victims of
pollution incidents caused by their neighbor's actions. It is
not intended to require parties raising section 107(o) as an
affirmative defense to alleged liability to undertake full
scale response actions with respect to migrating contaminated
plumes passing through their property. To meet their
``appropriate care'' burden, persons invoking section 107(o) as
a defense must take reasonable steps to address the conditions
on their property. Such reasonable steps typically will consist
of actions such as notifying appropriate Federal, State and
local officials regarding the situation; erecting and
maintaining signs or fences to prevent public exposure; or
maintaining any existing barrier or other elements of a
response action on their property that address the contaminated
plume. These persons are not expected to intercept, pump and
treat contaminated groundwater, build slurry walls, or
undertake other response actions that would more properly be
paid for by the responsible parties who caused the
contamination.
Section 107(o)(2) allows the Administrator to issue
assurances, known as ``comfort letters,'' that no enforcement
action will be initiated against a person meeting the
requirements of this section. EPA may also enter into
settlements that would insulate a person meeting the
requirements of the section from a cost recovery or
contribution action under CERCLA. However, EPA may decline to
settle with a party invoking this affirmative defense if that
party fails to comply substantially with its obligation under
new section 107(y) to provide full cooperation, assistance and
site access in the corse of any necessary response action, or
if the party impedes the effectiveness or integrity of any
institutional control employed at the facility (such as
damaging a cap, removing signs or fences, etc.). In addition,
the person must comply with any request for information or
administrative subpoena issued by the President.
Sec. 105. Prospective Purchasers and Windfall Liens
Summary
Section 105 of the Superfund Cleanup Acceleration Act
provides liability relief for purchasers of contaminated
property if they did not contribute to the contamination and if
they conducted appropriate inquiries prior to the purchase.
Discussion
Two provisions are added to CERCLA to provide protection
to persons who wish to purchase contaminated property without
incurring Superfund liability. Fear of liability is frequently
cited as a barrier to redevelopment of contaminated sites. This
has resulted in many previously productive facilities remaining
idle, while pristine property is developed instead. EPA has
attempted to address this problem on a case-by-case basis with
so-called prospective purchase agreements. The process of
negotiating these agreements, however, is cumbersome and
resource-intensive.
The new provisions add a definition of ``bona fide
prospective purchaser'' to CERCLA's definitions. Section 107
has been amended to exclude persons who qualify as bona fide
prospective purchasers from liability under CERCLA.
A bona fide prospective purchaser is a person, or his
tenant, who acquires property after the date of enactment of
the Superfund Cleanup Acceleration Act of 1998 and can
establish each of the following conditions by a preponderance
of the evidence. First, all deposition of hazardous materials
must have occurred at the facility before the person acquired
the property. Burying an intact drum containing hazardous
substances is an act of deposition, leaks from the drum after
it corrodes are not. Second, the person must have made all
appropriate inquiry into the previous ownership and uses of the
facility and the real property in accordance with generally
accepted commercial and customary standards and practices.
These standards and practices are either defined by the
American Society for Testing and Materials (ASTM) Standard
E1527-94, entitled Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process, or
an alternative standard to be established by a regulation
issued by the Administrator. The section recognizes that due
diligence for residential property is different than due
diligence for commercial property. If the purchaser is not a
governmental or commercial entity, a facility inspection and
title search that reveals no basis for further investigation
will generally satisfy the due diligence requirement. The
person must also provide any required notices if there is a
discovery or release of any hazardous substance.
In the case of a property at which a remedy is already in
place, a bona fide prospective purchaser has the same duty of
appropriate care as a contiguous landowner under section
107(o). Any bona fide prospective purchaser that undertakes any
other response actions at the site must exercise appropriate
care in the conduct of the response action.
Like the contiguous landowner, a bona fide prospective
purchaser must substantially comply with its obligation under
new section 107(y) to provide full cooperation, assistance and
site access in the course of any necessary response action. In
addition the prospective purchaser must not impede the
effectiveness or integrity of any institutional control
employed at the facility (such as damaging a cap, removing
signs or fences, etc.). Finally, a bona fide prospective
purchaser must not be affiliated through familial or corporate
relationship with another party that is or was a PRP at the
facility.
The liability limitation for a bona fide prospective
purchaser is created in new section 107(p). A bona fide
prospective purchaser shall not be liable under CERCLA if that
liability is based solely on the party's status as an owner or
operator of a facility by reason of the purchase, provided that
the purchaser does not impede the performance of a response
action or natural resource restoration.
While bona fide prospective purchasers are protected from
liability, new section 107(p)(2) prevents these parties from
reaping a windfall due to the increase in a property's value as
a result of the Federal government's cleanup efforts. If the
Federal government incurs response costs at a facility, it may
not sue a bona fide prospective purchaser for those response
costs, but it may, however, place a windfall lien on the
property. The amount of the lien would be equal to the lower of
the Federal government's unrecovered response costs or the
increase in the fair market value of the property due to the
government's cleanup efforts. This recognizes that the cost of
cleanup will often greatly exceed the fair market value of the
property (which often is valueless unless it is cleaned up).
The windfall lien would be satisfied from the proceeds when the
bona fide prospective purchaser resells or otherwise disposes
of the property.
Sec. 106. Safe Harbor Innocent Landholders
Summary
Section 106 of the Superfund Clean Up Acceleration Act
provides liability relief for innocent landholders of
contaminated property if they did not contribute to the
contamination and conducted appropriate inquiries prior to the
purchase of the property.
Discussion
CERCLA provides an affirmative defense for innocent
purchasers of real property who had no reason to know of any
release or threatened release of a hazardous substance that was
disposed of on, in, or at the facility prior to the date of
purchase. This section amends CERCLA section 101(35) to clarify
the obligations of parties that seek to use this defense.
First, a party using this defense must provide full access,
assistance and cooperation in the conduct of any response
actions at the facility. In addition, the landholder must not
impede the effectiveness or integrity of any institutional
controls at the facility. A landholder seeking to use the
defense must also demonstrate that he or she had no reason to
know of the contamination. This is intended to mean that at, or
prior to, the date the property was acquired, the landholder
undertook all appropriate inquiry into the previous ownership
and uses of the facility and the associated real property in
accordance with generally accepted commercial and customary
standards and practices. These standards and practices are
defined as the ASTM Standard E1527-94, entitled Standard
Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process, or an alternative
standard in a regulation to be issued by the Administrator.
This section recognizes that due diligence for residential
property is different than due diligence for commercial
property. If the purchaser is not a governmental or commercial
entity, a facility inspection and title search that reveals no
basis for further investigation satisfies the due diligence
requirement.
A landholder must also demonstrate the exercise of
appropriate care. This is the same standard that applies to
owners or operators who qualify for the bona fide prospective
purchaser exemption under section 107(q).
TITLE II--STATE ROLE
Sec. 201. Transfer to the States of responsibility at non-Federal
National Priorities List Facilities
definitions
Summary
This Title establishes two mechanisms for States to assume
responsibility for cleanup actions at NPL facilities. Under the
authorization approach, a State may conduct cleanups at NPL
facilities according to a cleanup program established under
State law. Under the delegation approach, a State may conduct
cleanups at NPL facilities under the Federal Superfund program.
Definitions in Title II distinguish between an ``Authorized
State'' and a ``Delegated State'' based on whether State or
Federal Law will be used to enforce cleanup activities at the
site. These terms do not connote any distinction in the extent
of a State's ability to make and enforce cleanup decisions.
The definition of ``delegable authority'' establishes
categories of authorities. The categories of authority are:
site investigations, evaluations and risk analysis; development
of alternative remedies and remedy selection; remedial design
and remedial action; operation and maintenance; and information
collection and allocation of liability. The responsibility for
the performance of any category may be transferred to the State
when EPA determines that a State applying for such a transfer
is capable of adequately performing all of the tasks associated
with that category. Allowing EPA to recognize discrete
``delegable authorities'' provides sufficient flexibility for
EPA to transfer authority to the States in stages. Deficiencies
in one aspect of an overall robust State cleanup program will
not, therefore, place EPA in the position of having to withhold
delegation entirely until every aspect of the State program is
satisfactory. Categories of authorities are grouped in a way to
allow associated activities to be transferred as a group.
States may also receive authority to manage response
actions at Federal facilities. However, the term ``non-Federal
listed facility'' is defined to clarify that, while States can
apply for and receive a transfer of authority to conduct
cleanups at NPL facilities at which the Federal government is
an owner or operator, the approval of such a transfer must take
place in accordance with the provisions of Title VI of this
bill.
Discussion
The bill reflects the recommendations of the National
Governors' Association that EPA be able to authorize or
delegate full or partial management of the remedial action and
emergency removal programs to all capable States that seek to
administer cleanup activities at NPL sites in their
jurisdiction. States have a strong track record in managing
non-NPL cleanups. States that have significant experience
managing comprehensive programs should be ready to receive
authorization or delegation.
In establishing a new mechanism for transferring authority
to States, it was necessary to define several terms for use in
this title. The key terms are ``authorized State'' and
``delegated State.'' The new terms clarify the respective
limits of authority of EPA and States for NPL cleanup
activities.
Authorization
Summary
Section 201 of the bill creates a new section 131 of
CERCLA, which gives qualified States the option of applying for
authorization or delegation of Federal cleanup authorities.
Under authorization, a qualified State would operate its own
comprehensive hazardous waste cleanup program in lieu of the
Federal program. Under delegation, States would conduct
cleanups according to CERCLA.
Section 130(c) allows the Administrator to grant a State
the right to apply any or all of its cleanup program
requirements, in lieu of CERCLA, to specified facilities listed
on the NPL. In order to receive this authority, a State must
submit an application that identifies the facilities for which
authorization is requested. Additionally, the State must submit
documentation that demonstrates that its response program:
(1) Lhas adequate legal authority, financial and
personnel resources and expertise to administer and enforce a
hazardous substance response program;
(2) Lwill be implemented in a manner that is protective
of human health and the environment;
(3) Lhas procedures to ensure public notice and, as
appropriate, opportunity for comment on remedial action plans,
consistent with section 117 of CERCLA; and
(4) Lwill include the exercise of State enforcement
authority to require persons potentially liable under section
107(a), to the extent practicable, to perform or pay for
response actions.
EPA is directed to establish a simplified application
process for States. It cannot impose any additional terms or
conditions beyond those outlined above on the approval of a
State's application. The Administrator has 180 days to approve
or disapprove the application. If the application is
disapproved, the Administrator must explain the basis for that
determination.
Should the Administrator fail to approve or disapprove an
application, the applicant State, or any person, may bring an
action without regard to the notice requirements of section
310(d)(1) to compel the Administrator to act on the
application. This allows the affected State or any interested
party to take EPA to court under the ``citizen suit'' provision
of CERCLA without waiting 60 days after filing of a notice of
intent to sue, as current law requires. In that case, the court
will determine if there is a reasonable cause for the delay in
the Administrator's decision on the application, and then
establish a deadline for final EPA decision. The court shall
order the Administrator to approve or disapprove the
application within 30 days after the date of the order, or if
additional information regarding the application must be
considered, remand it back to the Administrator for not more
than 90 days. A State may resubmit an application at any time
after receiving a notice of disapproval.
Section 130(c)(3) establishes a pilot program to provide
expedited authorization to not more than six States. The
Administrator must promptly develop an expedited review process
for applications. Those States applying for expedited
authorization under this provision must submit an application
along with any required documentation. The application shall be
deemed approved on the last day of the 180-day period beginning
on the date on which the application is submitted unless the
Administrator publishes in the Federal Register (prior to the
expiration of the 180-day period) an explanation as to why the
State does not meet the criteria for expedited authorization.
EPA is directed to issue regulations within 3 years to
provide criteria for expedited authorization for all qualified
States. This permanent expedited authorization process shall be
developed on the basis of experience gained under the six-State
expedited authorization pilot program.
Delegation
Summary
The delegation provision in section 130(d) allows the
Administrator to transfer to a qualified State the authority to
perform one or more delegable authorities. These authorities
are to be identified in a rule that must be finalized not later
than 1 year after enactment of section 130. In order to receive
delegation of any authorities under section 130, a State must
be able to demonstrate that its enforcement authorities are
substantially equivalent to the Federal authorities under
CERCLA.
In applying for delegation, a State must identify the
categories of authority it seeks and the NPL facilities at
which it intends to enforce those authorities. Any application
for a transfer of authority must provide sufficient information
so that the Administrator can determine whether, and to what
extent, the State:
(1) Lhas adequate abilities and resources to enforce a
hazardous waste response program;
(2) Lwill implement the delegated authorities in a manner
that is protective of human health and the environment; and
(3) Lagrees to exercise its delegated authorities to
require that those liable for cleanup costs under Federal law
will pay for the response actions.
Within 120 days of receipt of an application, the
Administrator must approve the application or issue a notice of
disapproval, including an explanation of the basis for the
determination. If the Administrator fails to act on the
application within the allowed time, the applicant State, or
any person, may bring an action without regard to the notice
requirements of section 310(d)(1) to compel the Administrator
to make a determination. In such an action, the court shall
order the Administrator to approve or disapprove the
application within 30 days after the date of the order. If
additional information regarding the application must be
considered, the court must remand the application to the
Administrator for not more than 90 days. The Administrator is
required to provide opportunity for public comment on
applications under this section. A State may resubmit an
application at any time after receiving a notice of
disapproval.
Discussion
This section strikes a balance between the States' strong
interest in assuming responsibility for Superfund cleanups and
the Federal government's interest in assuring that those
cleanups will be conducted in a manner that is protective of
human health and the environment.
The current Federal Superfund program does not utilize the
resources of the Federal or State governments in the most
efficient manner possible. At those NPL facilities where the
States have been designated the lead agencies responsible for
cleanups, EPA still reserves the right to select and enforce
its own remedies whenever it disagrees with State-selected
remedies. The result is an overly bureaucratic process of
consultation that delays decision-making. Both EPA and the
State agency end up overseeing and enforcing the cleanup. This,
in turn, leads to lengthy disputes about how to conduct the
cleanup. At sites where both EPA and the State are involved,
responsible parties remain wary of proceeding with cleanup
activities directed by the State without some assurance that
EPA agrees with the State's cleanup decisions.
CERCLA and its ``two-masters'' system undercuts the ability
of a State to achieve cooperation and compliance from
responsible parties. Instead of enlisting the resources of
willing and able States to speed up and expand cleanup
activities, the current system reduces the enforcement
credibility of the States, slows actual cleanup and inevitably
increases costs. As a result, public dollars (both State and
Federal) are not being spent in the most efficient manner and
the maximum number of contaminated sites is not being
addressed.
Under State-EPA cooperative agreements, EPA may allow a
State to perform some cleanup activities. However, these
agreements do not always afford States the flexibility they are
seeking in managing site cleanups. Furthermore, EPA always
reserves the right to select and enforce its own remedy should
it disagree with a State-selected remedy. Currently, EPA does
not have a mechanism either for determining that a State is
capable of making independent decisions, and enforcing those
decisions, or for transferring those responsibilities to a
State. This title would establish the means for EPA to make
such determinations and transfers.
performance of transferred responsibility
Summary
Once a State has received delegated authority or is
authorized to conduct response activities in lieu of the
Federal government, that State shall have sole authority to
perform the transferred responsibilities. Delegated States must
perform its delegated authorities in the same manner as would
the Administrator.
Background
The fundamental goal of this title is to eliminate the
``dual master'' problem that results when the State, as lead
agency, is not able to make and implement final cleanup
decisions without second guessing by EPA. By creating a process
for delegation or authorization that confers full decision-
making responsibilities upon the recipient State, the lines of
responsibility for future response actions should be clear.
This language also makes clear that, in accepting delegated
responsibilities, a State also accepts the burden of
implementing CERCLA in a manner that is fully consistent with
all applicable Federal rules and guidance.
Section 130(e) amends CERCLA by providing for the
performance of transferred responsibilities to the States for
non-Federal NPL facilities. In general, States are provided
sole authority for the transferred responsibilities, except as
provided in Section 130(f). The States shall implement each
applicable provision of this Act including any regulations and
guidance issued by the Administrator of EPA. States are to
carry out these responsibilities ``in the same manner as would
the Administrator.'' This provision is not meant to allow the
Administrator to second guess each State decision. The
Administrator should allow each State sufficient latitude in
interpreting the regulations and guidance to address its
individual needs, while still ensuring that the State's actions
are consistent with the goals of the Federal program. The
process for allowing the Administrator to regain Federal
control is provided in Section 130(f).
retained federal authorities
Summary
EPA may withdraw the transferred responsibility from a
State if it finds, at any time, that the State no longer meets
the requirements of this Title. In a delegated or authorized
State, EPA may take any removal action permitted by CERCLA,
after giving the State an opportunity to conduct the removal,
if: (1) the State requests assistance; or (2) EPA makes a
determination that the release constitutes a public health or
environmental emergency, and obtains a declaratory judgment in
U.S. District Court that the State has failed to make
reasonable progress. In the case of a public health or
environmental emergency, EPA need not provide the State with an
opportunity to act first.
If a State conducts cost recovery actions, it may retain 25
percent of any monies it collects. This will serve as a strong
incentive for States to seek cost recovery from responsible
parties. EPA may conduct cost recovery actions if the State
does not intend to, or if the State fails to do so in a timely
fashion. To prevent double recovery, only one agency be will
allowed to bring a cost recovery action against a responsible
party.
A State may request the removal of all or part of a
transferred facility from the NPL. EPA must comply with the
request if the delisting is not inconsistent with a requirement
of CERCLA.
The agency is directed to report annually to Congress
describing actions taken under subsection 130(f).
Discussion
The bill provides a Federal ``safety net'' when CERCLA
authorities are transferred to States. Should an authorized or
delegated State fail to implement its responsibilities under
section 130, EPA retains the authority to take any necessary
action to ensure the protection of human health and the
environment. In some cases, an individual facility may present
technical or resource challenges that were unknown at the time
an application for authorization or delegation was approved,
and that are beyond the capabilities of the State. In such
cases, the State may request assistance from EPA in performing
a response action. Such cooperative interaction to address
previously unknown circumstances is expressly permitted by this
bill. There is little reason to believe that EPA will need to
rely on the safety net mechanism often because States must
first be approved by EPA to operate delegated or authorized
programs.
If a State fails to meet its responsibilities under section
130, any transferred authorities may be withdrawn under
paragraph 130(f)(1). Also, EPA may use paragraphs (3) or (4) of
subsection 130(f) to perform any emergency action permitted
under CERCLA to address human health and the environmental
emergencies. EPA's removal authority is subject to the
conditions stated in existing law in section 104(a)(4), and not
the more lenient standard found in sections 104(a)(1) and 106
that authorize EPA to respond to any imminent and substantial
endangerment. The reason for applying this more stringent
standard for EPA action is that, in delegated or authorized
States, it is assumed that the State is responding to a
situation that already poses an imminent and substantial
endangerment. In exercising its authority under paragraph
104(a)(4), the Administrator may intervene only if there is an
immediate risk of actual exposure that would directly cause a
public health or environmental emergency.
This balanced approach ensures that State programs will be
allowed to operate with the greatest degree of flexibility and
without fear that EPA might exercise removal or enforcement
authority at a site for reasons other than emergency
situations. At the same time, it ensures that if a State fails
to adequately protect human health or the environment, EPA will
be able to reassume full responsibility at a site.
funding
Summary
EPA must provide funding to States to which responsibility
has been transferred. Every 3 years, EPA and a State with
transferred responsibilities must jointly determine the amount
of Federal funding required for administrative costs and
preconstruction costs. Every year, they must determine the
amount of funding required for remedy construction costs.
In prioritizing the allocation of funds, EPA must not favor
facilities for which EPA is responsible over those for which a
State is responsible. Grant money may not be used to pay the
State share of response costs. The Governor shall annually
certify to EPA that the State has used the funds in accordance
with CERCLA. EPA may bring a civil action against a State to
recover any funds that were not used properly.
The 50 percent State cost-share requirement is repealed at
State-operated facilities. Indian Tribes are not subject to
cost-sharing.
Discussion
In transferring responsibility for Superfund cleanups to
States, it is appropriate that EPA also transfer the funds it
would expend on the sites for which it is no longer
responsible. This process should result in an overall cost
savings for the Federal government. Elimination of the
uncertainties and delays caused by the ``dual master'' problem
should decrease the overall time needed to complete a response
action. Significant savings are expected to be realized at
sites that are cleaned up more quickly.
EPA currently operates a funding prioritization process to
ensure that cleanup funds are spent in the most efficient
manner possible, based on the demand for funds and the relative
urgency of the response action at a particular NPL facility.
EPA will include in this prioritization process any facilities
for which responsibility has been transferred to States. EPA
will use the same criteria to evaluate all facilities,
regardless of whether the State or EPA is responsible for
action at the facility.
The bill includes a mechanism for EPA to recover any funds
misspent by the State. Also, EPA and the State shall establish
and implement a 3-year plan for all non-construction funding.
This will enable long-term planning for administration and pre-
construction activities.
TITLE III--COMMUNITY PARTICIPATION
The purpose of Title III is to ensure that citizens living
near potential or actual Superfund facilities have
opportunities for meaningful participation throughout the site
assessment and remediation process. Currently, CERCLA requires
only that there be a public notice and comment period before
the adoption of certain emergency removal actions and all
remedial actions.
Sec. 301. Definitions
Summary
This section adds definitions for the terms ``Agency for
Toxic Substances and Disease Registry,'' ``affected
community,'' and ``covered facility.'' Section 301 also makes
several technical and conforming changes to existing section
117.
Discussion
Current law does not identify a role for public involvement
in decision-making for affected communities until after a
facility is placed on the NPL and a remedial action plan is
developed. There may be little opportunity for citizens to
learn about the site or cleanup options or to influence
decisions about the future of their communities before
construction begins. Yet, these cleanup decisions may
significantly affect their lives. This bill provides for early
and continuing public involvement in decisions about NPL sites.
It does so by defining an ``affected community'' as any group
of two or more individuals who may be affected by a release or
threatened release of a hazardous substance, pollutant, or
contaminant from a ``covered facility,'' and then defining a
``covered facility.'' It also defines any facility listed or
proposed to be listed on the NPL, as well as any facility at
which there is a removal action anticipated to take longer than
a year or to cost more than $4 million.
Sec. 302. Public Participation Generally
Summary
Section 302 amends CERCLA Section 117 to ensure that EPA
provides the affected community adequate notice before adoption
of any remedial action plan. EPA is required to publish
required notices, analyses, final plans, and explanations in
local newspapers of general circulation. Section 302 ensures
that all records in the possession of the United States
relating to the release or threatened release of a hazardous
substance are readily available to the affected community for
inspection and copying. This requirement does not apply to
records that relate to liability or that are exchanged between
parties to settle a dispute under CERCLA, or to information
protected from disclosure by privilege or as confidential
business information.
Discussion
These relatively minor changes to the existing law remove
obstacles to meaningful public involvement that have been
identified by affected communities. Meaningful participation is
active rather than passive and therefore expands opportunities
for citizens to provide as well as to receive information. The
amendments allow citizens adequate time and access to documents
to become informed and better prepared to make relevant
comments. Local community advisory groups and recipients of
technical assistance grants also are ensured access to relevant
documents.
Sec. 303. Improvement of Public Participation in the Superfund
Decisionmaking Process; Local Community Advisory Groups; Technical
Assistance Grants
Summary
Currently, CERCLA requires only that there be a public
notice and comment period before certain removal actions and
all remedial actions. Section 303 creates new opportunities for
citizens to participate in the remedial action planning and
implementation process. First, the section provides that
citizens should be consulted about their views, notified about
opportunities to gather and convey information, and have access
to information about the release or threatened release of a
hazardous substance, and the plans and progress of response
actions. Second, the section establishes Citizen Advisory
Groups (CAGs) to represent the diverse interests of community
members. Early and continuing influence of CAGs in the
development and implementation of remedial activities is
required. Finally, the bill makes a series of changes to the
technical assistance grants (TAG) program to improve the
administration of the program.
Discussion
The current public participation program under CERCLA has
not resulted in a decision-making process at Superfund
facilities that is responsive to the concerns of affected
communities. Critics of the current program include members of
the Board of Directors of Clean Sites, Inc., a non-profit
public interest organization dedicated to accelerating the
cleanup of hazardous waste sites in the United States. In
testimony before the Senate Committee on Environment and Public
Works, Subcommittee on Superfund, Recycling, and Solid Waste
Management in July 1993, Clean Sites President Edwin Clark
identified three key problems related to the CERCLA public
involvement program:
(1) LIt focuses more on community relations than on public
participation. That is, the community is asked to react, not to
contribute.
(2) LCitizens are not brought into the process early or
often enough, impeding citizen understanding and support of
remedial activities.
(3) LCitizens do not have easy access to information and
may not have the technical resources needed to understand the
information they do receive.
Mr. Clark argued that improving the public participation
program under CERCLA would lead to more effective and more
efficient cleanups, especially as future land uses are
considered in setting remediation goals. A 1994 report by the
U.S. General Accounting Office supports this conclusion. It
recommends that EPA include communities in decisions beginning
at the time of the Agency's earliest active involvement in a
Superfund project through completion of the cleanup.
The bill addresses all of these concerns. First, it amends
CERCLA section 117 by adding a new subsection (g) that requires
EPA, to the extent practicable, to disseminate information to,
and solicit information from, the local community, consider its
views, and include those views and EPA's response to them in
the administrative record. Section 117(g) authorizes EPA to
conduct, as appropriate, face-to-face community surveys to
obtain information about the location of private drinking water
wells, historical, current, and possible future uses of water,
and other environmental resources in the local community.
Public meetings and other appropriate activities also are
authorized.
Section 117(g) also mandates consultation with a local
community advisory group, if there is one, and members of the
affected community about which community participation
activities should be conducted. It requires EPA to notify the
community and local government about the schedule and location
of plans for construction at the facility, the results of any
5-year review under section 121(c), and any use of
institutional controls at the facility. This section directs
EPA to inform local government officials, community advisory
groups, Indian Tribes on a regular basis, and, to the extent
practicable, other interested members of the affected community
about technical meetings held between the lead agency and PRPs.
Second, new section 117(h) requires EPA to assist in
establishing CAGs when requested by 20 or more residents or at
least 10 percent of the population in the area where the
facility is located. If there is no such request, EPA is
directed to establish a CAG at the request of a local
government. EPA also has the discretion to establish a CAG if
it would further the purposes of CERCLA.
Each CAG is required to solicit and represent community
views regarding response action concerns. It must keep the
community informed about the progress of the response action at
a facility and opportunities to participate in meetings and CAG
activities. EPA must consult with the CAG about key issues in
developing and implementing the response action, inform the CAG
of response action progress, and consider the comments and
recommendations provided by the CAG. The CAG should try to
achieve consensus before providing its comments and
recommendations to EPA. However, the CAG must allow the
presentation of divergent views.
The voting membership of a CAG is limited to 20 non-
compensated members. A CAG's voting membership must include, to
the extent practicable, at least one person from each of the
following groups: nearby residents or property owners, other
affected citizens, local public health practitioners,
representatives of any local Indian communities,
representatives of citizen, civic, environmental, or public
interest groups, local business persons, and employees of the
facility. Non-voting members of the CAG may include
representatives of EPA, ATSDR, other Federal agencies, States,
affected Indian Tribes, affected local governments and
governmental units that regulate land use, facility owners, and
PRPs. A CAG may receive a TAG. EPA must also provide
administrative and support services to the CAG.
In order to avoid duplication of existing Federal community
participation programs, section 117(h) provides that the
President may determine that other advisory groups such as
those established by the Departments of Defense or Energy, or
by ATSDR may serve in lieu of a CAG.
The third major provision related to public participation
is the new section 117(i), which establishes revised
requirements for TAGs. It broadens TAG eligibility by
authorizing EPA to make grants available to members of an
affected community and by eliminating the current matching
requirements for TAG recipients. It increases the flexibility
of the grant monies for TAG recipients by allowing early
disbursement of a portion of the grant (up to $5,000 or 10
percent of the grant). It also allows EPA to expand both the
duration, as well as size of the grant, to accommodate unique
site-specific circumstances, such as the complexity and
duration of a response action. TAGs may be used to hire experts
to interpret information and present views of recipients, to
disseminate information to the community, or to fund training
to facilitate effective participation in the selection and
implementation of a response action.
Sec. 304. Technical Outreach Services for Communities
Summary
Section 304 expands existing CERCLA section 311(d)(2) to
allow University Hazardous Substance Research Centers
established under that section to provide educational and
technical assistance to communities regarding the potential
effects of contamination on human health and the environment.
Discussion
The University Hazardous Substance Research Centers
established under section 311 conduct short- and long-term
research on all relevant scientific and technological subjects
related to hazardous substances, including the manufacture,
disposal, clean up, and management of hazardous substances;
disseminate the results of their research and findings; and
provide training, technology transfer, and technical outreach
and support to organizations, communities, and individuals
involved with hazardous substances. The Centers do not conduct
human health effects research. Each regional research center
serves two adjoining Federal EPA regions. The centers, each of
which is affiliated with several universities, collaborate on a
national program, but also conduct independent research in
specialized areas.
Section 304 of the bill, directs the centers to provide
educational and technical assistance to affected communities
about the effects of contamination on human health and the
environment, is intended to allow these centers to become more
actively involved in providing useful and relevant information
to the communities adversely affected by actual or potential
exposure to hazardous substances.
Sec. 305. Agency for Toxic Substances and Disease Registry (ATSDR)
Summary
Section 305 establishes a new section 104(b)(3) that
directs the President to notify State, local, and Tribal public
health authorities about any investigation of a possible
release or threatened release of a hazardous substance. The
section also requires ATSDR to perform a health assessment at
each covered facility, unless the ATSDR publishes a finding
that the facility presents no significant health risk. For each
facility placed on the NPL after the date of enactment of this
Act, a health assessment is to be completed prior to the
completion of the RI/FS. The study shall not delay the progress
of remedial action.
ATSDR may conduct health education activities, as
appropriate, to make the community aware of steps it can take
to mitigate or prevent exposure to hazardous substances. When a
facility receives its 5-year review, public health
recommendations must also be reviewed. ATSDR, in consultation
with EPA, is required to conduct a study regarding the
identification, management of, and response to multiple sources
of community exposure.
Discussion
Section 305(b) of the bill makes a number of changes to the
authority of ATSDR set forth in CERCLA section 104(i). These
provisions are meant to ensure that ATSDR provides the same
services to Indian Tribes as it does to States. It is directed
to utilize the expertise of the Indian Health Service in the
same manner as the Public Health Service. It also removes an
existing provision authorizing ATSDR to refer individuals to
hospitals and other facilities and services offered by the
Public Health Service. Instead, ATSDR may now refer affected
individuals to licensed or accredited health care providers.
The existing requirement for ATSDR to update toxicological
profiles no less often than every 3 years is changed to require
updates ``if the Administrator of ATSDR determines that there
is significant new information.''
Under CERCLA Section 104(i)(6), ATSDR is required to
conduct a health assessment for each facility on the NPL. The
bill expands this requirement to include all ``covered
facilities'' as that term is defined in amended subsection
117(a), unless the ATSDR publishes a finding that the facility
presents no significant health risk. Current law also requires
ATSDR to complete assessments ``to the maximum extent
practicable, before the completion of the remedial
investigation and feasibility study.'' However, ATSDR health
assessments often have been conducted too late to be useful for
EPA remedy selection activities. For facilities placed on the
NPL in the future, health assessments must be completed prior
to the completion of the RI/FS. However, a failure to complete
the health assessment cannot be used to delay the progress of
remedial action.
Section 305 of the bill authorizes ATSDR to conduct health
assessments of community exposure to hazardous substances
released, or threatened to be released, at a facility. It
directs ATSDR to give special consideration to any practices of
the affected community that may result in greater exposure. In
addition, section 305 requires ATSDR to prepare and distribute
educational materials and information on human health effects
of hazardous substances to the community. ATSDR should use any
available information networks, including any CAG to accomplish
this.
The bill authorizes ATSDR to conduct health education
activities to make a community near a covered facility aware of
steps it may take to mitigate or prevent exposure to hazardous
substances and their related health effects. If it chooses to
conduct such activities, the bill directs ATSDR to use
community health centers, area health education centers, or
other community information networks, including a CAG or a TAG
recipient.
People in affected communities may be exposed to hazardous
substances from sources other than covered facilities in
addition to releases from covered facilities. The bill directs
ATSDR, in consultation with EPA, to conduct a study on multiple
sources of exposure affecting or potentially affecting a
community. ATSDR is authorized to examine various approaches to
protect communities and to include recommendations for the
President to consider in developing an implementation plan to
address the effects or potential effects of exposure at covered
facilities.
Sec. 306. Understandable Presentation of Materials
Summary
The bill provides that information distributed to the
community must be presented in a manner that may be easily
understood, considering any unique cultural needs of the
community.
Discussion
A 1994 GAO report recommends that EPA should information
repositories more useful and accessible to the public; redesign
its public notices and print them in local newspapers to make
them more visible to a broader segment of the public; and
assess the benefits of routinely evaluating the reading level
of fact sheets and other documents intended for the general
public to make them less technical and more accessible. The
bill requires that information distributed to the community as
part of the public participation program of CERCLA Section 117
must be presented in a manner that may be easily understood by
the community. EPA is directed to consider any unique cultural
characteristics of a community, as well as any educational or
language barriers, in carrying out this requirement.
Sec. 307. No Impediment to Response Actions
Summary
The bill provides that nothing in the public participation
section of the law should impede or delay the ability of EPA to
conduct a response action necessary to protect human health and
the environment.
Discussion
The bill adds a number of requirements for public
participation in affected communities at covered facilities.
However, it is not intended that these requirements should
impede response actions that are needed to protect human health
or the environment.
TITLE IV--SELECTION OF REMEDIAL ACTIONS
Sec. 401. Definitions
Summary
This section adds definitions to section 101 of CERCLA for
the terms ``Technically Impracticable'' and ``Beneficial Use.''
Both terms are used elsewhere in the title.
Discussion
The definition of the term ``technically impracticable''
states the conditions that must exist for a standard or
requirement in the cleanup provisions in section 121 to be
waived. The definition is based upon EPA guidance for the
remediation of contaminated groundwater. OSWER Directive
9234.2-25, Interim Final Guidance for Evaluating the Technical
Impracticability of Ground-Water Restoration (September, 1993),
states that a technical impracticability determination should
be based on `` . . . engineering feasibility and reliability,
with cost generally not a major factor unless compliance would
be inordinately costly.'' (OSWER Directive 9234.2-25 at 10,
citing 55 Fed. Reg. 8748, March 8, 1990). The definition in S.
8 is consistent with EPA guidance and the National Contingency
Plan.
The definition of the term ``Beneficial Use'' states the
goal for future utility of land after a Superfund cleanup is
completed. The definition is used in section 121(b), which
details the process to develop assumptions regarding the future
use of contaminated land. The potential for beneficial use of
land in a manner that confers economic, social, environmental,
conservation, or aesthetic benefit is a factor that the
Administrator must consider in developing assumptions regarding
the future use of the land, which will have an impact upon the
remedial action alternatives that the Administrator will
consider.
Sec. 402. Selection and Implementation of Remedial Actions
Summary
The bill provides a new section 121 that replaces existing
section 121 of CERCLA. The fundamental remedy selection rule in
the new section states that the Administrator must select a
cost-effective remedy that protects human health and the
environment. Further, applicable Federal and State law cleanup
requirements must be met at NPL sites. A risk-based standard is
used if there is no applicable Federal or State law
requirement. The bill modifies the existing statutory
preferences for permanence and treatment with a more flexible
six-factor balancing test.
The bill requires consideration of the reasonably
anticipated future use of land and water resources in
determining the degree of cleanup. Uncontaminated groundwater
which is suitable for use as drinking water is protected if it
is technically practicable to do so. Contaminated groundwater
that is a foreseeable source of drinking water must be restored
if it is technically practicable to do so. The bill also
contains a new preference for treatment that is limited to
those materials that cannot be reliably contained and pose a
substantial risk to human health and the environment because of
the material's high toxicity, high mobility, and a reasonable
probability of actual exposure to the hazardous substance. New
provisions on institutional controls are included to ensure
long-term protection when a selected remedy leaves
contamination in place. A new provision also is included to
describe the process for obtaining a waiver due to technical
impracticability, and the obligations for any alternative
remedial action to protect human health notwithstanding a
waiver.
Discussion
General Cleanup Rule. S. 8 provides a complete replacement
for existing section 121 of CERCLA and states the new remedy
selection process for Superfund cleanups. Section 121(a)(1)(A)
states the general cleanup mandate: the President must select a
cost-effective remedial action that protects human health and
the environment, and attains or complies with applicable
Federal and State laws.
Protection of Human Health and the Environment. New section
121(a)(1)(B)(I) contains an absolute mandate that remedial
actions protect human health, and states the conditions that
must be met for a remedial action to protect human health. The
term ``human health'' specifically includes the health of
children and other highly exposed or highly susceptible
subpopulations. This is not a new requirement, as EPA has
applied the current law's mandate to protect human health,
which does not include any language identifying specific
populations at greater risk, to include protection of these
groups.
Remedial actions must achieve a residual risk from exposure
to threshold carcinogenic hazardous substances such that the
cumulative lifetime additional cancer risk is in the range of
10-4 to 10-6 (1 in 10,000 to 1 in
1,000,000) for the affected population. In the case of
nonthreshold carcinogenic and noncarcinogenic hazardous
substances, cleanups must assure that the exposed population
will not experience adverse health effects. Finally, cleanups
must prevent or eliminate any human ingestion of drinking water
containing hazardous substances in excess of Safe Drinking
Water Act maximum contaminant levels (MCLs), or if MCLs have
not been established for the substance, levels that meet the
goals for protecting human health. This risk management goal
gives the decision maker the flexibility to make appropriate
risk management decisions in light of the nature and magnitude
of the uncertainties which may be present in any given risk
assessment at a particular facility. These uncertainties
include strength of evidence regarding a substance's human
carcinogenity, and the degree of knowledge about potential
exposure pathways, and the characteristics of the exposed
population.
EPA has established a risk management goal of
10-4 to 10-6, with a point of departure
at 10-6, in Superfund's National Contingency Plan.
The point of departure is used for determining remediation
goals or alternatives when ARARs are not available or are not
sufficiently protective because of the presence of multiple
contaminants at a site or multiple pathways of exposure.
S. 8 does not adopt a point of departure at either the more
protective or less protective end of the risk range. Use of
single point risk targets or points of departure could
artificially limit the decision maker's ability to select a
protective, cost-effective remedial alternative. Use of the
range recognizes that at certain sites, where there is thorough
site characterization and data regarding the health effects of
the contaminants, setting goals near 10-4 may be
protective. EPA generally uses 10-4 as the lower end
of the protectiveness range in making risk management
decisions, however EPA may consider a specific risk estimate
around 10-4 acceptable if justified based upon site-
specific conditions. (See, e.g., OSWER Directive 9355.0-69,
Rules of Thumb for Superfund Remedy Selection, August 1997, at
9). Conversely, at sites with less extensive data, setting
goals at the high end of the range to account for uncertainty
may be required for a protective remedy. Further, the final
numeric risk goal selected is influenced by application of the
remedy balancing test. The first prong of the balancing test
for remedial alternatives in section 121(a)(3) is the
effectiveness of the remedy in ensuring protection of human
health. This is a direct reference to the protectiveness
requirements in section 121(a)(1)(B)(I), so the relative degree
of protection within the range is balanced with the other five
factors.
For hazardous substances other than nonthreshold
carcinogens, remedies should reduce contaminant concentrations
so that exposed populations will not experience adverse health
effects during all or part of a lifetime, incorporating an
adequate margin of safety (i.e. a hazard index at or below
one). Finally, S. 8 prohibits actual human ingestion of
drinking water that exceeds maximum contaminant levels
established under the Safe Drinking Water Act (42 U.S.C. 300(f)
et seq.), or at a risk-based protective level if no maximum
contaminant level is established. Prevention of actual human
ingestion of contaminated groundwater may require action under
this section prior to the time that any actual ingestion occurs
so long as such ingestion is reasonably foreseeable.
A remedy protects the environment if it protects plants and
animals from significant impacts resulting from releases of
hazardous substances at the facility. This is a site-specific
inquiry that shall not be based upon an impact to an individual
plant or animal that does not also have an impact at the
population, community, or ecosystem level. Impacts to
individual plants or animals are considered if the plant or
animal is listed as a threatened or endangered species under
the Endangered Species Act (16 U.S.C. 1531 et seq.).
Compliance with Applicable State and Federal Laws. Current
law requires remedial actions to attain the relevant and
appropriate requirements of State law (so called ``RARs'').
Critics contend that this requirement often leads to remedies
that are not cost-effective. S. 8 retains the requirement in
current law that Superfund cleanups must attain or comply with
applicable Federal or State laws, however, S. 8 modifies the
existing requirement to attain or comply with RARs. New section
121(a)(1)(C) requires a remedy to comply with the substantive
requirements of Federal and State environmental and facility-
siting laws applicable to the conduct of the remedial action or
to the determination of the cleanup level. More stringent State
requirements may be applied if the State demonstrates that they
are generally applicable and consistently applied to remedial
actions, and the State identifies the requirements to the
President.
New section 121(a)(1)(C)(iii) authorizes waivers from the
substantive requirements of applicable Federal and State laws
for specified reasons. These waivers are essentially the same
as the waivers found in existing law. New section
121(a)(1)(C)(iii)(ff), the so-called ``fund balancing'' waiver,
does change current law to recognize the changes made to the
Superfund liability scheme in Title V. Existing law limits the
waiver to remedial actions funded ``solely'' by the Superfund
Trust Fund. Limiting the use of the waiver to remedial actions
funded solely with Federal resources made sense in the era when
the Superfund management philosophy was to use the Federal
Trust Fund first, then later seek cost recovery. Such a
limitation makes far less sense for a reformed Superfund
program. In recognition of the fact that the Trust Fund will
assume a greater share of the cleanup costs due to the
liability limitations and exemptions created in Title V, as
well as the availability of orphan share funding in the
allocation system, the standard in S. 8 for invocation of the
fund balancing waiver is for remedial actions that are funded
``predominately'' from the Trust Fund.
New section 121(a)(1)(D) states that if no applicable
Federal or State standard exists for a contaminant a remedy
must meet a standard that EPA determines to be protective. The
Administrator's action will be guided by the requirements in
section 121(a)(1)(B) and the risk evaluation principles in
section 131(b) and (c) in establishing such a protective
standard.
New section 121(a)(1)(C)(ii) restates the exception in
existing law that Federal, State and local procedural
requirements, including permitting requirements, would not
apply to response actions conducted onsite. For example, this
would exempt a Superfund remedy from procedural, but not
substantive, requirements of RCRA such as obtaining a subtitle
C permit for the storage of hazardous wastes.
New section 121(a)(1)(C)(I)(II) provides an exemption from
certain substantive RCRA requirements for hazardous waste
management. Specifically, the standards applicable to owners
and operators of hazardous waste treatment, storage and
disposal facilities will not apply to the return, replacement
or disposal of contaminated media (such as soil) into the same
media in or very close to then-existing areas of contamination
at the facility. This would allow soil excavated at a site
during the construction of the remedy to be retained and
managed onsite with other material that was not excavated. This
fact pattern often arises when contaminated soil at a landfill,
where the selected remedial action is a protective cap, is
moved and consolidated under the protective cap. Section 3004
of RCRA could, in such a situation, require additional
treatment that would not result in added protection of human
health and the environment.
Remedy Selection Process Explained. New section 121(a)(2)
provides a roadmap for the remedy selection process. It states
that the President shall select a remedy from a range of
alternatives that satisfy the requirements described above, by
balancing six criteria in 121(a)(3). Alternatives that are to
be evaluated under the balancing test must meet any additional
remedy selection rules in section 121(b) that apply at that
site, as well as the general requirements in section 121(a)(1)
regarding protectiveness, cost-effectiveness and compliance
with applicable State and Federal law.
New section 121(a)(3) contains the new remedy selection
balancing test. This six-factor test is similar to proposals in
previous bills reported by the Committee, including S. 1834 in
1994. The six-remedy selection balancing criteria are:
effectiveness in protecting human health and the environment;
long term reliability; short-term risk posed by the remedy;
community acceptance: implementability, and reasonableness of
the cost. In applying the balancing test the decision maker is
directed that no single factor shall predominate over the
others, and S. 8 does not provide any weighting to a specific
factor.
The first factor is ``the effectiveness of the remedy in
protecting human health (including the health of children and
other highly exposed or highly susceptible subpopulations) and
the environment.'' This factor directly invokes the standards
for protection of human health and the environment in section
121(a)(1)(B). The second factor, ``reliability of the remedial
action in achieving the protectiveness standards over the long
term'' contains an implicit preference for permanent remedies
that use treatment. Remedial actions that remove and neutralize
hazardous substances are inherently more reliable than those
that contain hazardous substances onsite. The third factor is
``[a]ny short-term risk to the affected community, those
engaged in the remedial action effort, and the environment
posed by the implementation of the remedial action.'' This
factor directs the decision maker to consider whether the
proposed remedial alternative presents risks that could
outweigh the marginal risk reduction that the alternative would
attain. For example, there may be significant risks to human
health and the environment due to suspension of hazardous
substances in the air or water column during remedy
construction, or risks to residents or operators due to the
excavation and removal of contaminated material from a site.
These risks must be quantified and balanced against the other
remedy factors.
The fourth factor is ``acceptability of the remedial action
to the affected community.'' Title III of S. 8 contains
significant improvements to Superfund's existing community
participation requirements and enhances the role of the
community in the remedial action selection process.
The fifth factor is ``implementability of the remedial
action.'' This means that remedial alternatives must be
technically feasible from an engineering perspective.
Maximizing this balancing factor favors remedies that are
relatively easier to implement over those that are relatively
more difficult, while eliminating those that are technically
infeasible from further consideration.
The final balancing factor is ``reasonableness of the
cost.'' The balancing test demands a relative weighing of all
six factors in order to maximize the benefits of a remedial
action within the overall mandate that selected remedial
actions be cost-effective. In order to balance cost as a
factor, a relative measure of the particular quality of the
cost element must be expressed. EPA has recognized that
reasonableness is an appropriate quality of the cost criterion
to measure in some of its Superfund guidance. For example, in
an September 26, 1996 memo from the Director of the Office of
Emergency and Remedial Response regarding the National Remedy
Review Board, EPA states that one of the appropriate review
criteria the Board should consider when it evaluates a remedy
decision is ``[a]re the cost estimates reasonable?''
(Attachment to OERR memo at 2). The cost factor in the
balancing test in S. 1834, the Administration-supported
``Superfund Reform Act of 1994,'' was ``the reasonableness of
the cost of the remedy.''
Current EPA policy specifies three roles for cost in
Superfund remedy selection. EPA recently issued guidance to
clarify and interpret both the Superfund statute and the
National Contingency Plan in OSWER Publication 9200.3-23FS, The
Role Of Cost in the Superfund Remedy Selection Process
(September, 1996). This fact sheet summarizes the cost
consideration as follows:
Cost considerations are therefore factored into the
balancing of alternatives in two ways. Cost is factored
into the determination of cost-effectiveness, as
described above. And, cost is evaluated along with the
other balancing criteria in determining which option
represents the practicable extent to which permanent
solutions and treatment or resource recovery
technologies can be used at the site. (Id. At 5.).
The OSWER fact sheet goes on to recognize the role of cost
in technical impracticability as follows:
Cost is relevant to the technical impracticability
waiver, because engineering feasibility is ultimately
limited by cost. EPA has stated that cost can be
considered in evaluating technical impracticability,
although it should generally play a subordinate role'
and should not be a major factor unless compliance
would be inordinately costly.' (Id. At 6, citing the
preamble to the National Contingency Plan, 55 Fed. Reg.
at 8748, March 8, 1990).
Similar to current EPA policy, S. 8 uses cost in remedial
decision making in three ways. First, there is a mandate,
identical to current law, that selected remedial actions be
cost-effective. Second, the reasonableness of the cost is a
balancing factor for the evaluation of remedial alternatives,
but does not predominate over other factors such as long-term
reliability (which contains an implicit preference for
permanent remedies that use treatment). Finally, inordinate
cost is the cost criterion that can be used to invoke a
technical impracticability waiver.
Additional Remedy Selection Rules. Section 121(b) consists
of five paragraphs that define additional rules that must be
taken into account when selecting a Superfund remedy.
Reasonably Anticipated Future Use of Land and Water
Resources. A frequent criticism of Superfund is that the
selected levels of cleanup are not tied closely enough to the
reasonably anticipated future uses of a facility. This can
result in applying more-protective and costly residential
cleanup standards where no residential use is contemplated or
foreseeable. EPA provided the Committee with information during
the 1997 stakeholder process that residential land use was
assumed in 75-80 percent of all remedy decisions made since
program inception. In 26 percent of these cases, residential
use was the current use of the site, and in the remaining 74
percent residential use existed adjacent to the site, or was
expected immediately off-site. This information was based on
pre-1994 data. EPA reported that data for fiscal year 1995
indicated that 38 percent of the sites used only residential
land use as the future land use assumption, while some
industrial or commercial use was assumed at 60 percent of the
sites. Many sites used multiple assumptions due to the large
size of the site.
While EPA issued land use guidance on the topic in 1995.
(See OSWER Directive 9355.7-04, Land Use in the CERCLA Remedy
Selection Process, May 25, 1995), current law is silent on land
use assumptions. New section 121(b)(1)(A) requires that, in
selecting a remedy for a facility, EPA take into account the
reasonably anticipated future use of land and water potentially
affected by the release. When developing assumptions regarding
the future use of land, new section 121(b)(1)(B)(I) requires
EPA to consider the views of local officials and community
members, and consider specified factors in developing
assumptions regarding reasonably anticipated future land uses.
The process and factors listed are similar to the process and
factors in OSWER Directive 9355.7-04.
It is important to note that the land use assumptions
developed during the remedy selection process do not create
``Federal zoning'' for Superfund sites. This section does not
provide EPA with the authority to enforce or compel the
enforcement of local or State laws in the future. This section
merely requires EPA to ensure that at the time any land use
assumption that relies on an institutional control is made,
that the relevant local or State governments have the necessary
legal mechanisms to implement, monitor and enforce the
institutional controls. Local governments retain the full scope
of police powers over land use decisions delegated to them by
the respective States. The goal of this provision is too
prevent unwarranted expenditures where there is reliable
information regarding the reasonably anticipated future use of
a Superfund site.
Section 121(b)(1)(C) contains rules for development of
assumptions regarding the reasonably anticipated future use of
ground water and surface water. EPA must give substantial
deference to the classifications in an approved State
comprehensive ground water protection program (so-called
``CSGWPPs''). This policy accords with EPA guidance on the
subject, which states that EPA will ``[d]efer to State
determinations of current and future ground-water uses, when
based on an EPA-endorsed CSGWPP that has provision for site-
specific decisions.'' (See OSWER Directive 9283.1-09, The Role
of CSGWPPs in EPA Remediation Programs, April 4, 1997, at 1).
If the plan is not EPA-approved, then EPA must still consider
it along with other designations or plans adopted by the
governmental unit that regulates water use planning in the
vicinity.
Protection and Cleanup of Groundwater. New section
121(b)(2) includes additional provisions applicable to
protection of uncontaminated ground water and the cleanup of
contaminated ground water. Section 121(b)(2)(B) requires that a
remedy seek to protect uncontaminated groundwater that is
suitable for use as drinking water, if it is technically
practicable to do so. Suitability for use as drinking water is
a site-specific decision, and not dependent upon any
designation or reasonably foreseeable use under section
121(b)(1)(C). Suitability would be limited by the conditions
stated in section 121(b)(2)(F), which describe ground water not
suitable for beneficial use as drinking water. Section
121(b)(2)(C) requires that contaminated ground water that is a
current or reasonably foreseeable source of drinking water
should be restored to a condition suitable for such beneficial
use if it is technically practicable.
New section 121(b)(2)(A) states that a remedy for
contaminated ground water shall proceed in phases in order to
allow the collection of sufficient data to evaluate the effect
of any other remedial action taken at the site and to determine
the appropriate scope of any needed future remedial action.
This approach is consistent with current EPA guidance on
groundwater remedies. (See OSWER Directive 9283.1-12,
Presumptive Response Strategy and Ex-Situ Treatment
Technologies for Contaminated Groundwater at CERCLA Sites,
October 1996, at 5, 6 (hereinafter ``1996 Groundwater
Guidance'')). Remedial decisions for contaminated ground water
must also consider the current or reasonably anticipated future
uses of the groundwater under section 121(b)(2)(C); any natural
attenuation or biodegradation that would occur without remedial
action, and the effect of any other completed or planned
response action. Again, this is consistent with current EPA
policy. (See the 1996 Groundwater Guidance at 17 through 19).
The cleanup process for contaminated groundwater is
described in section 121(b)(2)(C). The mandate in this section
is that as much of any contaminated ground water that is a
current or reasonably foreseeable source of drinking water
shall be restored unless it is technically impracticable to do
so. This section allows division of groundwater into two or
more zones to tailor cleanup to differing conditions throughout
the contaminated plume. This approach allows EPA to
differentiate between areas in the contaminated plume where
restoration is technically practicable from those areas where
it is not; restoration is not an ``all or nothing'' decision.
Section 121(b)(3)(C)(iv) requires that a remedial action
for contaminated groundwater attain the more stringent of
Federal drinking water standards or State water quality
standards. If no standard exists, then the remedy must be
protective of human health and the environment based on a risk
assessment. Restoration to a level that is more stringent than
the naturally occurring background levels in the surrounding
area is not required. This section does not require restoration
of contaminated groundwater beneath a containment area, such as
under a landfill which is covered and capped. The boundary of
the containment area defines the lateral extent of the area
where restoration is not required.
Contaminated ground water or surface water that is not
suitable for beneficial use as drinking water because it meets
the conditions stated in section 121(b)(3)(F) nonetheless must
be remediated unless it is technically impracticable to do so.
Such contaminated water must attain a standard that is
protective for the current or reasonable anticipated (non-
drinking water) future uses of that water and any surface water
to which the contaminated water discharges.
Even if the restoration of some or all of the contaminated
groundwater is technically impracticable, section
121(b)(2)(C)(vii) imposes conditions that a remedial action
must meet. Consistent with the mandate in section
121(a)(1)(B)(iii), no human ingestion or exposure is allowed,
and the remedy must incorporate provision of alternate water
supplies, point-of-use treatment or other measures to ensure
there is no ingestion or exposure. Impairment of designated
surface water uses under section 303 of the Federal Water
Pollution Control Act or comparable State law caused by a
hazardous substance, pollutant or contaminant in any surface
water into which contaminated groundwater is known or expected
to enter, is prohibited unless it is technically impracticable
to prevent such impairment. Long-term monitoring of the
contaminated ground water is required, and groundwater
monitoring requirements shall be reviewed during the periodic
review of the remedial action to determine when the monitoring
requirements may be modified or eliminated. The responsibility
for any point-of-use treatment or alternate water supplies
remains the obligation of the responsible parties.
New section 121(b)(3)(D) allows the use of monitored
natural attenuation as an element of a remedy. Monitored
natural attenuation is not a ``no action'' alternative, and
does not relieve a party's obligation to attain a cleanup level
or standard required by this act. The use of monitored natural
attenuation is consistent with long-standing EPA practice, the
1996 Groundwater Guidance (See pages 18-19), and the more
recent draft OSWER Directive Use of Natural Attenuation at
Superfund, RCRA Corrective Action, and Underground Storage Tank
Sites (draft dated June 7, 1997).
Section 121(b)(3)(E) restates existing law for so-called
alternate concentration levels (ACLs) where a contaminated
groundwater plume intercepts surface water. There is one
significant change from current law. Current law contained a
proviso that limited the application of ACLs unless it could be
demonstrated, inter alia, that ``on the basis of measurements
or projections, there is or will be no statistically
significant increase of such constituents from such groundwater
in such surface water . . .'' (CERCLA section
121(d)(B)(ii)(II)). As practical matter, it is not possible to
demonstrate satisfaction of the requirement. In order to remove
the practical barrier to utilization of ACLs, S. 8 changes the
provision to read ``on the basis of measurements or
projections, there is or will be no impairment of the
designated use established under section 303 of the Federal
Water Pollution Control Act (42 United States Code 1313) from
ground water in such surface water . . .''
New section 121(b)(3)(F) defines groundwater that is not
suitable for use as drinking water due to naturally-occurring
conditions, broad-scale human activity unrelated to a specific
facility or release that makes restoration of drinking water
quality technically impracticable (such as an aquifer with
multiple sources of contamination) and or low yield aquifers
that are not currently used as drinking water sources and are
physically incapable of yielding 150 gallons per day.
Preference for Permanence and Treatment. New section
121(b)(3) replaces current law's preference for permanence and
mandate for treatment. This section serves as a supplement to
the preference implied in the long-term reliability prong of
the remedy balancing test in section 121(a)(3). The bill
provides that for discrete areas containing highly toxic
contaminants that cannot be reliably contained, and present a
substantial risk to human health and the environment because of
high toxicity, high mobility, and a reasonable probability of
actual exposure, the remedy selection process must include a
preference for a remedy that includes treatment.
New section 121(b)(3)(B) states exceptions to the
preference so that EPA may select a containment remedy for
landfill or mining sites. Landfills will often have discrete
areas of hazardous waste that are relatively small in volume
compared to the overall amount of waste or contamination at the
site which is not readily identifiable or accessible. A
containment remedy may nonetheless be selected if such a remedy
is the appropriate remedy for the larger body of waste in which
the discrete area is located. A final containment remedy may be
selected at sites where the volume and size of the discrete
area is extraordinary compared to other sites on the National
Priorities List (typically mining sites), if it is highly
unlikely that any treatment technology will be developed that
could be implemented at a reasonable cost because of the
volume, size and toxicity of the discrete area.
Institutional Controls. An institutional control is a
restriction on the permissible use of land, ground water or
surface water included in any enforceable decision document for
an NPL facility to comply with the requirements to protect
human health and the environment. Institutional controls are
currently a part of most Superfund remedial actions. Data
furnished to the Committee by EPA during the 1997 stakeholder
process reported that 55 percent of all fiscal year 1994
records of decision (RODs) included institutional controls as
part of the remedy. Data for fiscal year 1996 saw the
percentage of RODs with institutional controls rise to 66
percent. Through fiscal year 1994, deed restrictions were the
most frequently used institutional control, followed by ground
water restrictions, and land use restrictions.
Current law is silent on the topic of institutional
controls. New section 121(b)(4) establishes rules for the use
of institutional controls that recognizes that they are already
a part of most Superfund remedies, and attempts to balance the
Federal interest that Superfund remedies are protective and
reliable over the long term with the State and local interest
in regulating property law.
Section 121(b)(4) permits EPA to select a remedy that
allows a contaminant to remain onsite at a concentration above
a protective level if institutional and engineering controls
would be used to ensure protection of human health and the
environment. The section includes a definition of institutional
controls with a non-exclusive listing of institutional control
mechanisms.
Section 121(b)(4)(B) requires that the Administrator use
protective institutional controls if contaminants remain in
place that would not permit unrestricted facility use after
cleanup. Section 121(b)(4)(C) requires that institutional
controls are adequate to protect human health and the
environment, reliable over the long term, and are properly
implemented, monitored, and enforced. Section 121(b)(4)(D)
requires that the institutional controls are clearly identified
in the record of decision. Section 121(b)(4)(E) requires the
Administrator to maintain a national registry of institutional
controls, including any engineering measures employed to
achieve the level of protection required by section
121(a)(1)(B).
Technical Impracticability. Current law allows EPA to waive
attainment of an applicable, relevant and appropriate
requirement of Federal or State law that is incorporated into a
Superfund remedy if it is technically impracticable to attain
the standard. Current law is silent, however, on the process
for raising and resolving the issue of technical
impracticability, and on the procedure to follow in the case of
a cleanup standard that is risk-based and not based upon an
applicable Federal or State law. New section 121(b)(5) makes
the waiver process for technical impracticability more
predictable and transparent to the affected community and
potentially responsible parties. This section provides that,
even if EPA finds that attaining a standard is technically
impracticable, EPA still must comply with the mandate to
protect human health and select a technically practicable
remedy that is protective as defined in section 121(a)(1)(B)(I)
and most closely approaches the cleanup goals through cost-
effective means. Section 121(b)(5) allows technical
impracticability waivers to be based on projections, models or
other analysis; and requires the determination be made as soon
as sufficient information is available. This answers a frequent
criticism of the current technical impracticability waiver
process that a remedy must be constructed and operated prior to
the time a waiver becomes ripe for review.
The section establishes a process for technical
impracticability reviews, and allows a party other than EPA
that is performing the cleanup (such as a party cleaning up
under a consent decree) to request a review. Notice and an
explanation is required when technical impracticability is
invoked.
Sec. 403. Remedy Selection Methodology
Summary
S. 8 requires EPA to perform facility-specific risk
evaluations as part of the remedial action. The bill states
that the goal of an evaluation is to provide informative
estimates that neither minimize nor exaggerate the current or
potential risk posed by a facility. A facility-specific risk
evaluation must use chemical- and facility-specific data in
preference to default assumptions whenever practicable. S. 8
also adds risk communication principles to the Act and requires
EPA to ensure that the presentation of health effects
information is comprehensive, informative and understandable.
Among other things, a document reporting the results of a risk
evaluation must present the central estimate of risk for
specific populations, as well as the upper- and lower-bound
risk estimates, and identify significant uncertainties in the
assessment process.
Discussion
Risk Assessment. New section 131 regulates risk assessment
activity in Superfund. Section 131(a) states that the goal of a
facility-specific risk evaluation is to provide informative and
understandable estimates that neither minimize nor exaggerate
the current or potential risk posed by a facility.
Section 131(b)(1) lists requirements that a facility-
specific risk evaluation must meet. This section recognizes
that risk evaluations are ultimately based on a combination of
measured data from the facility, non-facility-specific data and
assumptions where there are gaps in the data or knowledge of
conditions at a site. This section states a preference to use
chemical and facility-specific data in preference to default
assumptions whenever practicable. This does not require the
development of new toxicology data for every chemical at each
facility, but merely expresses a preference for chemical
specific data when it is practicable to obtain it. Consistent
with the preference for facility-specific data, the section
also requires: (1) evaluation of the exposed population and
current and potential pathways and patterns of exposure; (2)
consideration of the current or reasonably anticipated futures
use of land and water resources in estimating exposure (a
reference to the planning assumptions conducted under section
121(b)(1)); and (3) consideration of any institutional controls
that comply with the requirements stated in section 121(b)(4).
Institutional controls are typically used to interrupt exposure
pathways that otherwise would be completed. The President will
consider only those institutional controls that are in place at
the time that the risk assessment is conducted, and may inquire
into the effectiveness of the institutional controls in
assuring long-term protection of human health and the
environment.
Section 131(c) directs the Administrator to use facility-
specific risk evaluations for six different purposes. The
listed uses are designed to ensure that selected remedies are
protective while avoiding the phenomenon of compound
conservatism that leads to unnecessary remedial expenditures.
The listed uses of a facility-specific risk evaluation are: to
determine the need for remedial action; to evaluate the current
and potential exposures and risks at the facility; to rule out
the need for further study of specific contaminants, areas or
exposure pathways; to evaluate the protectiveness of
alternative proposed remedies; to demonstrate that the selected
remedial action can achieve the goals of protecting health and
the environment and land and water resource uses; and to
establish protective concentration levels if no applicable
requirement exists or an existing requirement is not
sufficiently protective.
Section 131(d) adds risk communication principles to the
Act and requires EPA to ensure that the presentation of health
effects information is informative, comprehensive and
understandable. The provision is virtually identical to the
risk communication provision in the Safe Drinking Water Act
Amendments of 1996. This provision directs EPA to improve its
performance in explaining scientific information and
uncertainties that are included in facility-specific risk
evaluation, and how the agency reconciles any inconsistencies
that exist in the scientific data generated in the facility's
evaluation.
Any chemical-specific, facility-specific or default
assumptions used in a facility-specific risk assessment must
meet the requirements in section 131(e). The requirements,
virtually identical to provisions adopted in the Safe Drinking
Water Act Amendments of 1996, require the President to use the
best peer-reviewed science and supporting studies conducted in
accordance with sound and objective scientific practices. This
places an affirmative duty upon the Administrator to rely upon
the best available science and information to support decisions
made under this section. This section also requires the
Administrator to collect data using accepted methods. If
accepted methods are not available, then the Administrator must
use the best available methods if the reliability of the method
and the nature of the decision to be made justifies the use of
data instead of a default assumption. Any decision to obtain
data is also informed by the requirement in section
131(b)(1)(A)(I) to use actual data in preference to default
assumptions whenever it is practicable to obtain such data.
EPA has 18 months to issue final regulations implementing
section 131.
Presumptive Remedies. New section 132 addresses so-called
``presumptive remedial actions'' to streamline the remedy
selection process. Section 132(a) directs EPA to establish
presumptive remedial actions that identify preferred
technologies and approaches for common categories of
facilities, and identify site characterization methodologies
for those categories of facilities.
Section 132(b) states that remedies may include
institutional and engineering controls, and must be
practicable, cost-effective and protective of health and the
environment. Sections 132(c) and (d) contain limits on the use
of presumptive remedies, and procedures for the promulgation of
a list of presumptive remedies and updates to that list.
Sec. 404. Remedy Selection Procedures
Summary
EPA is required to streamline and accelerate the cleanup
process by use of early response actions and combining the
multiple studies now performed at a site into an integrated
approach to site assessment. Removal program limits are
increased. The duration of emergency response actions is raised
from 12 to 36 months, and the authorized spending cap is raised
from $2 million to $5 million per site. Qualified PRPs are
allowed to conduct the bulk of the cleanup process under EPA
supervision.
A Remedy Review Board is established with two missions. It
will examine approximately 1/3 of all new remedy decisions to
ensure national consistency in remedy selection. It may re-
examine old remedy decisions and recommend a new remedy if the
new rules in this bill save significant amounts over the
current remedy while still reaching equivalent protection
standards. Governors can veto the reopening of old remedy
decisions.
Discussion
National Contingency Plan Revisions. New section 133
requires EPA to revise the National Contingency Plan, EPA's
rule implementing Superfund's cleanup provisions, within 180
days of enactment.
Acceleration of Cleanups. New section 134 contains several
improvements to the conduct and administration of Superfund
cleanups. Sections 134(a) and (b) codify several improvements
to Superfund that EPA promulgated in the Superfund Accelerated
Cleanup Model in 1992 (SACM). (See OSWER Directive 9203.1-03,
Guidance on Implementation of the Superfund Accelerated Cleanup
Model (SACM) Under CERCLA and the NCP, July 7, 1992). SACM
emphasizes the use of early response actions to prevent
exposure and further migration of contaminants, the
consolidation of multiple site studies in a phased manner that
uses the results of earlier investigations and response actions
to better define subsequent data needs and response actions.
Section 134(a) would require EPA to implement measures to
accelerate and improve the remedy selection and implementation
processes, tailor the level of oversight of response actions,
and streamline the process for submitting, reviewing and
approving plans and other documents. New section 134(b)
requires EPA to attempt to expedite completion of response
actions through appropriate phasing of investigative and
response activities.
New section 134(c) would authorize EPA to allow one or more
PRPs to perform a response action where EPA determines that the
party or parties would do so properly and promptly and the
parties agree to reimburse the Fund for oversight costs. The
section also allows EPA to tailor the level of Federal
oversight of PRPs that are conducting response actions based
upon the PRPs capability and prior performance. The specific
oversight factors are listed in section 134(c)(5). This
approach is consistent with EPA policy to reduce Federal
oversight at Superfund sites where reliable parties are
conducting the cleanup (See OSWER Directive 9200.4-16, Reducing
Federal Oversight at Superfund Sites with Cooperative and
Capable Parties, July 31, 1996).
The response action activities the President may authorize
a potentially responsible party to perform are enumerated in
section 134(c)(4). Included on this list is ``preparation of
draft proposed remedial action plans.'' This is a new document
that is not covered in law or EPA regulations and guidance, and
is essentially a recommendation by the party performing the
response action to the Administrator concerning the contents of
the proposed remedial action plan. The proposed remedial action
plan is issued by the Administrator and, after public notice
and comment, forms the basis for the record of decision at a
Superfund site. New section 134(d) directs the Administrator to
issue guidelines to identify the contents of a draft proposed
remedial action plan. New section 133(f) states that the
President may approve a PRP-prepared draft proposed remedial
action plan and treat it as the President's proposed plan.
Remedy Review Boards. New section 134(e) directs the
Administrator to create one or more ``remedy review boards'' in
order to assure cost-effective remedy selection decisions, as
well as national consistency among EPA's regions. The boards'
function is to review new remedy decisions that meet certain
criteria, as well as provide discretionary review of certain
old remedy decisions. EPA has administratively created a remedy
review board, and the provisions in S. 8 are modeled on EPA
remedy review board (See generally, Office of Emergency and
Remedial Response Memorandum National Remedy Review Board,
September 26, 1996, which establishes operating procedures for
the board). Unlike EPA boards, which merely require
consultation with affected States (See September 26, 1996 memo
at 3), section 134(c)(1)(B) requires that technical and policy
experts from State agencies constitute 1/3 of the board
membership if the draft proposed remedial action plan was
prepared by a State to which EPA transferred responsibility for
the facility under Title II of S. 8.
Reviewing New Remedy Decisions. 134(e)(2) requires EPA to
issue a rule establishing operating procedures for the board,
including cost-based or other criteria for determining which
draft proposed remedial action plans would be eligible for
review. Board review is discretionary, and section 134(e)(3)(B)
allows the Administrator to deny a review to an otherwise
qualifying draft proposed remedial action plan if the
Administrator determines that review would result in an
unacceptable delay in taking measures to achieve protection of
human health and the environment. This section requires that
the criteria cause an annual average of one-third of the draft
proposed remedial action plans to be eligible for board review.
EPA states that the goal of the thresholds in their current
guidance is to review 10 percent of the proposed remedial
action plans in each year. New section 134(e)(3) establishes
the timing of review at a point prior to the release of the
draft proposed remedial action plan for public comment,
consistent with both the November 28, 1995, OSWER memorandum
establishing the remedy review board and the September 26,
1996, OERR memo on board operating procedures. As in current
EPA practice, PRPs participating in the performance of the
remedial investigation and feasibility study are provided an
opportunity to meet with the board and provide written
comments. Unlike the five-page limit on written comments
imposed by EPA in its September 26, 1996 memo, the section
requires that any limit established by the Administrator be
rationally related to the level of detail contained in the
draft proposed remedial action plan.
New section 134(e)(5) directs the board to provide
recommendations to the Administrator, and in section
134(e)(5)(B) enumerates a non-exclusive list of factors for the
board to consider. The factors were modeled on factors
contained in various EPA guidance documents concerning the
National Remedy Review Board, including the September 26, 1996
memo and its attachment. The Administrator is allowed to add
other relevant factors to this list that the Administrator
considers appropriate.
Section 134(e)(5)(C) requires the Administrator to give
substantial weight to the board's recommendations in
determining whether to modify a remedial action plan; however
the section explicitly states the Administrator's rejection of
the board's recommendation shall not, by itself, render a
remedy selection decision ``arbitrary and capricious.'' Nothing
in the section modifies existing law with respect to the bar on
pre-enforcement review under section 113.
Sec. 405. Completion of Physical Construction and Delisting
Summary
New section 135 establishes procedures and time frames for
completion of a remedial action and delisting of a facility
from the NPL. Delisting would not affect liability allocations,
cost-recovery provisions, or operation and maintenance
obligations. Section 135(c) states that the need for continued
operation and maintenance at a facility is not a sufficient
reason to delay delisting of the facility, as long as the O&M
is legally enforceable.
Discussion
A frequent complaint of communities near Superfund sites is
that the mere listing of a site on the National Priorities List
can have a chilling effect on investment and development
throughout a community. This section requires that, when
capital construction of a remedy is completed and all that
remains is the so-called ``operation and maintenance'' phase of
the remedial action, EPA shall have 180 days to propose that
the site be removed from the NPL. Since NPL listing and
delisting decisions are informal rulemakings, EPA must provide
for and consider public comment before publishing its decision
to delist the facility. The President must publish a decision
not later than 60 days after the commencement of the comment
period. Section 135 limits the President's discretion by only
allowing approval or withdrawal of the proposed delisting
petition (effectively a decision to retain the site on the NPL
beyond the point in time when physical construction is
complete) until implementation of the proposed remedial action
is complete. The need for continued operation and maintenance
that is subject to a legally enforceable agreement, order or
decree shall not be the sole basis for the President to
withdraw a proposed delisting. A delisting under this section
has no effect on liability, cost recovery, allocation,
enforcement or any other obligations arising under this Act.
Sec. 406. Transition Rules for Facilities Currently Involved in Remedy
Selection
Summary
New section 136 establishes transition rules for selection
of remedial actions at facilities currently involved in a
cleanup. The remedy review board established under section
134(e) would evaluate petitions for remedy updates. While
review of a petition requesting that an update for pre-
enactment remedy that meets stated criteria is mandatory, the
decision to actually update an old remedy is discretionary.
Discussion
Updating Old Remedy Decisions. It is EPA policy to
periodically examine some old decisions about Superfund
remedies. On September 27, 1996, EPA issued a memorandum from
the Office of Emergency and Remedial Response entitled
Superfund Reforms: Updating Remedy Decisions. The guidance
states that the ``updates are intended to bring past decisions
into line with the current state of knowledge with respect to
remediation science and technology while ensuring reliable
short and long term protection of human health and the
environment.'' (Id. at 1). New section 136 incorporates a
formal process to reexamine old remedy decisions into the
Superfund statute, and uses the remedy review board established
under section 134(e) to perform the reviews.
Section 136(b) details the process for implementors of
records of decisions--such as responsible parties or PRPs that
are preforming the remedial action--to seek review of a pre-
enactment record of decision (ROD). In the case of facility for
which a ROD was signed before the date of enactment, the
implementor of the ROD would have 1 year to petition the remedy
review board to update the ROD to incorporate alternative
technologies, methodologies or approaches into the remedy.
The remedy review board criteria are listed in section
136(b)(3). These criteria are premised on the view that older
remedies involving ground water are the most likely to produce
significant cost savings upon review based upon more recent
experience in attempting to restore contaminated ground water.
The specific board acceptance criteria are: the proposed new
alternative complies with section 121; the Governor of the
State where the facility is located does not object; the ROD
under review was issued before 9/21/96 the (date EPA issued its
guidance on updating old remedies); or the ROD under review
involved groundwater treatment and was issued before 10/1/93
(the date EPA issued groundwater cleanup technical
impracticability guidance, OSWER Directive 9234.2-25, Guidance
for Evaluating the Technical Impracticability of Ground-Water
Restoration). Further, one of the following cost criteria must
be satisfied: the old ROD is estimated to cost more than
$30,000,000, or the old ROD costs between $5,000,000 and
$30,000,000 and the new remedy saves at least 50 percent of the
cost. The cost criteria are identical to the criteria used by
EPA's remedy review board for evaluation of new proposed
remedial action plans, and represents a dollar threshold where
the Federal interest in preventing incurrence of unnecessary
response cost may warrant reexamining the prior remedy
decision. (See November 28, 1995, OSWER Memorandum Formation of
National Superfund Remedy Review Board).
EPA's September 27, 1996, memorandum on the subject,
Superfund Reforms: Updating Remedy Decisions, does not contain
any lower dollar limit on remedies which may be updated. So as
not to arbitrarily limit the Administrator's discretion,
section 136(b)(3)(B) grants the Administrator the flexibility
to waive cost thresholds at her discretion. Section 136(b)(4)
directs the board to prioritize petitions based on criteria in
section 136(b)(3) and estimated gross and proportional cost
savings of the proposed remedy update. This is consistent with
EPA's memorandum Superfund Reforms: Updating Remedy Decisions
at page 6.
New section 136(c) lists the factors the Remedy Review
Board must consider in evaluating petitions. The factors are
closely modeled on factors promulgated by EPA in its guidance
for the National Remedy Review Board (See OERR Memorandum,
National Remedy Review Board, September 26, 1996, at page 5,
and attachment at page 2).
New section 136(d) requires the Board to make a
recommendation to the Administrator regarding remedy update.
Section 136(e) requires the Administrator to give substantial
weight to the board's recommendations, but does not mandate
acceptance of the recommendation. Discretion to accept or
reject a recommendation remain with the Administrator.
136(f) requires EPA to report to Congress annually on the
Board's activities. Section 136(g) provides guidance to the
Administrator in prioritizing her review of the recommendations
provided by Board.
Sec. 407. National Priorities List
Summary
This section instructs EPA to not include as part of a
National Priority List facility any parcel of real property at
which no release has occurred, but to which a contaminant that
was released from another parcel has migrated in ground water.
Discussion
When facilities are added to the National Priorities List,
there are often adverse economic consequences for any property
that is within the facility boundary. Section 407 amends CERCLA
so that, to the extent practicable, a parcel of real property
at which no release occurred is not included in the listed
facility if it merely overlies the contaminated plume that was
caused by a hazardous substance release occurring elsewhere.
There is an exception to this listing policy for ground water
that is (or was) in use as a public drinking water supply, if
the owner or operator of parcel that would not be included as
part of the facility is in privity with any other person who is
liable for response costs at the facility. The Administrator's
ability to take response actions at parcels excluded from the
NPL facility boundaries is preserved.
TITLE V--LIABILITY
Sec. 501. Liability Exceptions and Limitations
Summary
The bill would modify existing section 107 to create
liability exemptions and limitations for some of the parties
that have been adversely impacted by strict, joint, several and
retroactive liability imposed under current law.
Small generators of only municipal solid waste, de micromis
contributors of hazardous waste, and small businesses with
fewer than 75 employees or $3 million in gross annual revenue
would be excluded from the liability system. These classes of
responsible parties also receive protection from any other
Federal or State law for any cleanup costs that are expended at
NPL facilities after the date of enactment of the Superfund
Cleanup Acceleration Act.
Larger generators of only municipal solid waste would have
their liability limited to 10 percent of the total cleanup
costs incurred after the date of enactment of the bill.
Municipal owners and operators of co-disposal landfills
(landfills where both solid waste and hazardous substances were
disposed) listed on the NPL prior to January 1, 1997, could
take advantage of a liability cap based on the size of their
community. Communities with fewer than 100,000 residents would
be subject to a cap of 10 percent, and communities with greater
than 100,000 residents would be subject to a 20 percent cap.
Each of the liability caps for municipal owners and
operators could be adjusted upwards or downwards by the
President or the allocator at the site, depending on whether
the municipality undertook activities that exacerbated or
mitigated the potential for environmental contamination at the
site.
Discussion
Section 107 of CERCLA provides that persons can be held
liable for the costs of cleaning up Superfund sites (``response
costs'') in the following situations: (i) they currently own or
operate facilities from which there is a release or a threat of
release of hazardous substances; (ii) they owned or operated
such a facility in the past at a time when hazardous substances
were disposed at that facility; (iii) they generated hazardous
substances that are now found at such a facility and/or
arranged for the transport of those substances to that
facility; or (iv) they accepted hazardous substances for
transport to disposal or treatment facilities from which there
is a release or a threat of release of hazardous substances.
The courts have interpreted the liability provisions
broadly, imposing liability on owners and operators, generators
and transporters, subject to very limited exceptions. They have
imposed liability without regard to whether the events leading
to the release of hazardous substances occurred prior to the
original date of enactment of CERCLA in 1980, and without
regard to whether the activity contributing to the release was
in compliance with applicable laws.
Specifically, the Federal courts have made it clear that
liability under the Superfund statute is not only retroactive
(covered persons are liable for actions that took place prior
to the enactment of CERCLA in 1980), but also that it is: (i)
strict (covered persons are liable without regard to whether
their actions were negligent or in full compliance with
applicable law); (ii) joint (covered persons are all equally
liable for the costs of cleanup so long as the harm is deemed
indivisible); and (iii) several (each covered person can be
held separately liable for costs attributable to that
person)(See, e.g., United States v. Olin Corp., 107 F.3d 1506
(11th Cir. 1997) (retroactive liability); United States v. R.W.
Myer, Inc., 889 F.2d 1497 (6th Cir. 1989) (strict liability);
New York v. Shore Realty, 759 F.2d 1032 (2d Cir. 1985) (strict
liability); United States v. Chem-Dyne Corp., 572 F.Supp. 802
(S.D. Ohio 1983) (joint and several liability)).
While S. 8 does not make any change to CERCLA's underlying
liability system, S. 8 does ameliorate much of the unfairness
of CERCLA liability through a system of liability limitations,
exemptions, and proportional allocation. Considerable concern
has been raised about the number of parties that are brought
into the Superfund liability scheme as a result of third party
contribution suits and actions by EPA. At some NPL sites, large
PRPs who have been sued by the Justice Department have
subsequently sought third party contribution from hundreds, and
in some cases, thousands of homeowners, small businesses,
churches and schools. The cost of seeking contribution from
these small parties contributes significantly to the overall
cost of the Superfund liability system. Although no specific
figures are available because they involve private liability
actions, a 1992 study on Superfund transaction costs conducted
by the Rand Institute for Civil Justice (Superfund and
Transaction Costs--The Experiences of Insurers and Very Large
Industrial Firms) indicated that the transactional costs
associated with these lawsuits was approximately 34 percent of
the total private outlays at these sites.
Section 501(b) of the bill would create a new section
107(q) to exclude from liability home owners and renters, as
well as businesses and non-profit organizations employing fewer
than 100 people, who generated or transported municipal solid
waste (MSW) and sewage sludge (SS) at an NPL facility. This
liability exclusion would apply only to response costs at NPL
facilities that were incurred after the date of enactment of
the bill. At sites that are subject to a mandatory allocation
under section 137, the share of liability associated with
section 107(q) parties would be included within the orphan
share and not assumed by other potentially responsible parties
at the site. In order to obtain liability relief under section
107(q), parties must provide full cooperation, assistance and
access for EPA cleanup efforts as required by that section.
Section 501(b) would also create a new section 107(r) to
exclude from liability persons who generated or transported de
micromis levels (not more than 200 pounds or 110 gallons) of
hazardous substances to facilities on the NPL. Unlike section
107(q), the share of liability costs associated with de
micromis parties would not be borne by the orphan share, but
instead, would be spread proportionally among the remaining
parties at the site, as well as the orphan. An EPA estimate of
the aggregate annual liability of all parties exempted by this
provision is $100,000. Since the program-wide costs associated
with determining the appropriate orphan share for each de
micromis party at each site would easily exceed this figure, it
is more cost-effective to spread these costs among the other
parties at the site.
Section 107(s) creates a new exclusion for small businesses
that employ fewer than 75 employees or that have less than $3
million in gross annual revenue, providing post enactment
liability relief, under both Federal and State law, for tens of
thousands of small businesses at NPL sites nationwide. During
hearings on S. 1285 in the 104th Congress, as well as on S. 8
in the 105th, the Committee heard testimony from a number of
small businesses that had been needlessly dragged into the
Superfund liability net. One particularly stark example was
that of Ms. Barbara Williams, the owner of Sunny Ray Restaurant
in Gettysburg, Pennsylvania, who testified that her disposal of
a ball-point pen in the Keystone Landfill resulted in third-
party lawsuit seeking over $76,000. Under new section 137(i),
costs incurred after date of enactment by individuals meeting
the requirements of new section 107(s) will be borne by the
orphan share and not by other potentially responsible parties.
The small business exemption, however, does not apply where
the small business contributed material containing a hazardous
substance that ``contributed significantly or could contribute
significantly'' to the cost of the response action at the site
(section 137(s)(2)(A). The ``significant contributor''
provision is to be narrowly construed so as not to subsume the
general rule of section 137(s)(1) that exempts ``small
businesses.'' A small business party eligible for this
exemption is not a significant contributor unless the share of
response costs incurred at a facility that are attributable to
the exempt party's waste contribution result in a substantial
and disproportionate difference in the cost of the response.
Section 137(s)(1)(C) provides that persons who qualify for
the small business exemption cannot be affiliated ``through any
familial or corporate relationship with any person that is or
was a party responsible for response costs at the facility.''
The term ``affiliated'' is intended to refer to individuals or
firms that have identical or substantially identical business
or economic interests, such as family members or persons with
common investments. Generally, firms are affiliates of each
other when one party controls or has the power to control the
other, or a third party controls, or has the power to control,
both. Factors to be considered when determining affiliation
would include, ownership, management, previous relationships,
or ties to another firm. The term ``affiliated'' appears in
other sections of S. 8 and is intended to be interpreted in the
same manner as described in this paragraph.
In order to discourage needless litigation, other
potentially responsible parties who commence an action to
recover post-enactment response costs or contribution against
small municipal waste generators, de micromis parties or small
businesses who are relieved of liability under sections
107(q),(r) or (s), will be responsible for the litigation costs
of the excluded party, including reasonable attorney fees and
expert witness fees. In exchange for this relief, parties
relieved of liability under sections 107(q),(r) or (s), will
have to comply with the provisions of new section 107(y).
Section 107(y) requires parties to provide full cooperation,
assistance and access for EPA cleanup efforts.
Since the 103d Congress, there has been general agreement
that the presence of large amounts of MSW or SS can complicate
the process of determining the appropriate shares of liability
at Superfund sites. This issue is exceedingly troublesome at
co-disposal landfills, which are defined in the bill as
facilities listed on the NPL as of January 1, 1997, that
received both MSW or SS and may also have received hazardous
substances. At a typical co-disposal landfill, the vast
majority of the material at the site is comprised of non-
hazardous MSW or SS, and it is the volume of this material that
drives the cost of the cleanup due to the need for large caps.
Yet, because EPA estimates that there are only two or three NPL
sites (out of approximately 250+ co-disposal sites on the NPL)
that contain only MSW or SS, the hazardous substances are
typically the cause for the site being listed on the NPL.
Individuals and communities that disposed of only MSW or SS
complain that they contributed only a small percentage of the
total toxicity at the site, and thus, should be liable only for
a very small percentage of the cleanup costs. Similarly, PRPs
that disposed hazardous substances claim that they contributed
only a small percentage of the total volume at the site, and
thus, they should receive a very small share. EPA has tried a
number of times since 1989 to issue guidance documents to sort
out the liability between the various parties that disposed of
hazardous and non hazardous materials at co-disposal sites.
Most recently, on February 5, 1998, EPA issued guidance
documents outlining how it would seek to settle this liability
(Policy for Municipality and Municipal Solid Waste CERCLA
Settlements at NPL Co-Disposal Sites). Most notably, this
policy would allow generators and transporters of only MSW to
settle with EPA for an amount equal to $5.30 per ton of
material they sent to the site. While this policy was received
favorably by municipal governments, it was roundly criticized
by both the manufacturing and the waste disposal industries
because of the wide range of settlements that would result from
this arbitrary per ton rate. Critics claimed that in some
cases, the settlement policy would result in generators and
transporters of MSW assuming over 90 percent of the actual
cleanup costs at the site, and in others, less than 5 percent.
Although EPA's per-ton approach was considered, the bill
instead adopts a 10 percent cap for all generators and
transporters of MSW or SS who do meet the criteria of new
section 107(q). This approach is expected to more closely track
actual cleanup costs at the individual sites. New section
101(45), defines MSW to include commercial, institutional or
industrial waste that is substantially similar to waste
normally generated by households, without regard to differences
in volume. In combination with new section 107(q), this
provision is intended to allow the manufacturers of high
volume, low toxicity materials, such as food products, to
qualify for the 10 percent cap.
For co-disposal landfills owned or operated by
municipalities with a population of 100,000 or more, new
section 107(t)(2) would limit municipalities' liability to no
more than 20 percent of the post-enactment costs. EPA or the
allocator may increase this amount to no more than 35 percent,
or decrease it to no less than 10 percent, for any municipality
that took specific acts that exacerbated or mitigated the
environmental contamination. Similarly, for municipalities with
a population of less than 100,000, the aggregate liability
shall be no greater than 10 percent of the post-enactment
costs, with the discretion for EPA or the allocator to increase
it to 20 percent, or decrease it to 5 percent, if the
municipality exacerbated or mitigated the contamination.
The liability limitations for co-disposal sites do not
apply to municipalities that acted in violation of RCRA
subtitle C or D if the violation pertains to a hazardous
substance that caused the incurrence of response costs at the
facility. The intent of this provision was to clarify that
individuals who acted in violation of applicable RCRA
requirements would not benefit from subsequent liability
relief.
The transition rule in new section 107(t)(3) addresses the
applicability of the exemptions and limitations of section 501
to pending cases. Specifically, the transition rule states that
section 501 is applicable to any action under sections 106
(unilateral orders), 107 (cost recovery), or 113 (contribution
claims) that become final on or after the date of enactment.
The transition rule also states that section 501 does not apply
to any claim for pre-enactment costs. For example, where a
CERCLA cost recovery claim is pending in a Federal district
court, any identified party would be exempted from liability
for post-enactment costs. This exemption would also apply where
a judgment has been entered for response costs, but either an
appeal has been filed, or the time for filing the appeal has
not yet expired.
Sec. 502. Contribution from the Fund
Summary
Section 502 amends existing section 112 to provide that a
small generator or transporter of SS or MSW (107(q)), a de
micromis party (107(r)), or a small business (107(s)) that is
undertaking a response action pursuant to a section 106 order
or a settlement decree is required to fulfill its obligations
to conduct the cleanup activities, even if the party is no
longer liable by reason of an exemption or limitation contained
in S. 8. Instead, the exempted party shall be reimbursed
expeditiously for 100 percent of its post-enactment cleanup
costs.
Discussion
During the debate regarding the transition rule for sites
at which a PRP is currently undertaking a response action,
there was some concern that the party should continue to
conduct the cleanup rather than have EPA take over this role.
The fact that private parties can conduct cleanups between 10-
15 percent less expensively than EPA justifies the decision
that these private parties should complete the cleanups.
Balanced against this was the concern about how to deal with
those sites where a party had previously agreed to undertake
the cleanup, yet subsequently is relieved of liability as a
result of the enactment of this legislation. This language
makes clear that in such an instance, while the party is
required to continue to conduct the cleanup, the party shall be
reimbursed from the orphan fund for all costs that it incurs
after the date of enactment.
Sec. 503. Expedited Settlement for Certain Parties
Summary
The bill would modify existing section 122(g) to replace
CERCLA's existing de minimis settlement provisions,
establishing new expedited settlement procedures for parties
that contributed less than 1 percent of the volume of hazardous
substance at an NPL facility. Section 503 also provides for a
reduction in the settlement amount for a party that has a
limited ability to pay when the party is a natural person, a
small business that does not qualify for the exemption under
107(s), or a municipality.
Discussion
During the 103d, 104th and 105th Congresses, there has been
a continuing debate about the most appropriate way to treat
parties that contributed de minimis levels of hazardous
substances at Superfund sites. Under S. 8, de minimis is
defined as an amount equaling 1 percent or less of the total
amount of hazardous substances at the facility, unless the
Administrator identifies a larger percentage based on site-
specific factors. Some legislative proposals considered by the
Committee over the last few years proposed to exclude de
minimis parties from liability altogether; others, including
this legislation, would provide these parties with an expedited
settlement process.
Over the last few years, there has also been some concern
about EPA's limited authority to tailor settlement amounts for
parties based on their ability to pay. New section 122(g)(1)(D)
would expressly authorize EPA to enter into limited ability to
pay settlements with natural persons, small businesses with
under 50 employees or less than $3 million in gross annual
revenues, municipalities, or any other party. EPA is given the
flexibility to conduct an analysis to determine whether a small
business has the ability to maintain its basic operations in
light of the potential response costs that it will have to
assume.
In considering the ability to pay of a municipality, EPA
can consider a variety of mitigating factors such as bond
ratings, operating revenues, debt services, per capita income,
as well as unemployment and population information.
In order to remove these parties from the litigation
process as soon as possible, section 503 requires that EPA
expeditiously identify and notify each party that may qualify
for a de minimis settlement and offer to reach a final
administrative or judicial settlement with the qualifying
party. Persons eligible for an expedited settlement are
protected from being named as defendants under CERCLA or any
other Federal or State law for 1 year after they have been
notified that they qualify for an expedited settlement, or
within 90 days of being provided with a written settlement
offer.
Sec. 504. Allocation of Liability for Certain Facilities
Summary
Section 504 of the Superfund Cleanup Acceleration Act
requires EPA to conduct mandatory, non-binding allocations at
NPL facilities involving 2 or more potentially responsible
parties where cleanup costs incurred after the date of
enactment exceed $1 million. NPL sites that are already subject
to a consent decree or unilateral administrative order as of
February 1, 1998, would qualify for a limited allocation
process solely to determine the extent of orphan share funding
only as long as the total of the orphan shares (including, but
not limited, to defunct and insolvent shares of liability) for
post-enactment cleanup costs at the site exceed $500,000.
The Administrator is required to conduct a comprehensive
search for all potentially responsible parties at mandatory
allocation facilities. Subsequently, EPA shall appoint an
alternative dispute resolution (ADR) neutral to conduct a 90-
day settlement negotiation. If the parties fail to settle, EPA,
at the request of a PRP, shall select a neutral third-party
allocator who shall seek information from the PRPs, and prepare
a non-binding allocation report that specifies the percentage
liability share of each party and of any orphan share based on
defined allocation factors.
The final allocation report that is submitted to the
Administrator, the Attorney General, and each allocation party,
shall specify the estimated percentage share of each party and
any orphan shares. Unless an allocation report is jointly
rejected by EPA and DOJ, parties subject to the allocation
shall be entitled to resolve their liability to the United
States based on the shares determined by the allocator, subject
to specified terms and conditions.
Discussion
While there has been extensive concern expressed in the PRP
community regarding the imposition of Superfund retroactive
liability for activities that legally took place prior to 1980,
even greater concern has been raised about the issue of joint
and several liability. During the hearings and staff
investigations over the last few years, there have been
repeated examples where PRPs have declined to settle with the
Justice Department and EPA because they refuse to assume the
liability of defunct and insolvent parties.
Beginning with the introduction of S. 1834 in the 103d
Congress, there has been increasing support for the idea that
Congress should create an allocation process to sort out the
liability shares of the various parties at these sites. In
addition, there is nearly universal support for the creation of
an orphan fund, which would include the shares of defunct and
insolvent parties, as well as a proportional share of
unattributable shares at the site. This allocation process is
principally intended to relieve the harshness of the joint and
several liability system and provide greater incentives for
parties to settle rather than litigate. By creating an orphan
share to assume certain liability costs, parties would only be
required to pay for what they contributed to the site--so-
called ``fair shares.''
Determining which sites would be subject to the mandatory
allocation system in new section 137 involved the consideration
of important tradeoffs between fairness and efficiency. On one
hand, there was a desire to have the allocation system apply to
as many sites as feasible. On the other hand, there was a
concern about the cost of reimbursing parties for costs that
they had incurred prior to the date of enactment of this
legislation.
In order to strike a balance, the legislation provides that
any federally owned, or non-federally owned site shall
participate in a mandatory allocation process, subject to
specified threshold criteria, to determine the post-enactment
shares of liability. First, the new allocation process does not
apply to any NPL site that, on the date of enactment, has a
settlement decree or order determining the liability of all
viable (i.e., non-defunct or insolvent) PRPs at the site.
Second, the PRPs must demonstrate that there are post-date of
enactment response costs that will be incurred at the NPL
facility (i.e., this does not have to be limited to one
operating unit) that will exceed $1 million. Third, if the
facility has a existing consent decree (CD) or unilateral
administrative order under section 106 (UAO) that was issued,
signed, lodged, or entered on or before February 1, 1998, there
must be a third party determination that the amount of the
orphan share for the response costs remaining to be incurred
after the date of enactment can be expected to amount to
$500,000 or more.
The $1 million and $500,000 cost thresholds are intended to
exclude sites from this process that do not have significant
litigation issues remaining for post-enactment costs.
Nonetheless, there are several reasons why a significant number
of sites with existing CDs and UAOs were intended to qualify
for post-enactment orphan determinations. First, while one
party may have settled with the Justice Department at the site,
there could be dozens or potentially hundreds of other parties
who may not have settled. Since a primary goal of this
provision was to eliminate the need for litigation among PRPs,
an orphan share determination would prove beneficial to these
sites as well. Second, the legislation is intended to provide
some liability relief for individuals who had settled prior to
the enactment of this bill, even though the scope of the orphan
would be limited to amounts incurred after the date of
enactment.
Section 137(a)(5) is intended to apply equally to both
privately owned facilities (at which there are at least 2 PRPs)
and federally owned facilities (at which there is at least 1
private PRP). The use of a neutral allocator at a qualifying
Federal facility is appropriate given the fact that private
PRPs at these facilities typically have some type of
contractual nexus with the Federal government. Federal courts
have appropriately held the government liable where it
exercises significant control over the operations or disposal
activities at a facility. In conducting an allocation at a
qualifying federally owned facility, the allocator should
consider the control exercised by the Federal agency, any
relevant contractual provisions, including provisions regarding
indemnification, and the specific facts concerning the disposal
activity at the facility.
At those facilities that do not meet the criteria to become
mandatory allocation facilities, the Administrator has the
discretion to conduct an allocation process at the request of a
party that has incurred response costs or that has resolved its
liability to the United States, but still has outstanding
litigation with other PRPs. Given the fact that a primary goal
of this legislation is to minimize private litigation between
parties, the Administrator is expected to accommodate petitions
for requested allocations to the maximum extent possible.
Section 137(b)(6), requires a demonstration that the orphan
share of post-date of enactment costs is equal to or exceeds
$500,000 at a facility with an existing CD or UAO. To initiate
this process, two or more parties who are subject to the CD or
UAO must nominate a neutral third party, subject to approval by
the Administrator, who shall within a short period of time make
a determination whether the site meets the $500,000 threshold.
If it meets this threshold, then a limited allocation can take
place for the sole purpose of determining orphan funding. The
parties who seek the review by the neutral are responsible for
paying the cost of the review process and, if a subsequent
allocation determines that there is not at least $500,000 in
post-date of enactment orphan shares, the parties will receive
no orphan shares. This criteria is intended to prevent PRPs
from misusing this process, and should have the effect of
discouraging frivolous petitions for mandatory allocations.
In addition to allocating the post-enactment response
costs, section 137(b)(7)(A)(ii) also requires an allocation of
the unrecovered response costs incurred by the United States
prior to the date of enactment. Orphan funding would also apply
to these unrecovered costs. Finally, section 137(b)(8) also
provides that with the agreement of the allocation parties and
the United States, an allocator could also provide an
allocation of the pre-enactment response costs at the facility.
However, reimbursement for orphan shares would not apply to
such an allocation. In order to eliminate as much private
litigation as possible, the Administrator should allow pre-
enactment costs to be included within the allocation to the
maximum extent feasible.
Section 137(c) creates a moratorium on litigation and
enforcement. If a site is undergoing settlement negotiations
under section 137(e) or a mandatory allocation under section
137(f), the portion of the claim related to post-enactment
response costs must be stayed until 120 days after the issuance
of a report by an allocator under section 137(h), or a second
report under section 137(m). This language also provides for
tolling of applicable statutes of limitation during the
pendency of the settlement negotiations or mandatory
allocation. This language does allow PRPs and EPA to continue
with claims for response costs that were expended prior to the
date of enactment.
A significant key to the success of the allocation process
is the need to accurately identify all PRPs at the site. EPA
has come under justifiable criticism for its efforts in the
past that have resulted in the identification of only the
largest PRPs at a site. Section 137(d) explicitly requires that
EPA shall perform, as soon as reasonably practicable, a
comprehensive search for all PRPs at a mandatory allocation
facility. EPA is also required to allow the PRPs to nominate
additional PRPs who shall be included on the list of parties
unless EPA determines that there is no basis to believe they
are liable. An accurate, fair and comprehensive search for all
PRPs will give the ADR neutral or the allocator the most
appropriate information to determine the fair share of the
liable parties at the site, and should give the PRPs confidence
that the allocation resulted in an accurate division of
liability.
EPA has expressed the view that its allocation pilot
projects demonstrate that a formal allocation process is not
necessary at every site. Indeed, EPA stated that when orphan
funding was made available, the use of a less formal procedure
was sufficient to settle the liability at the site without
having to rely on a full-blown allocation. Balanced against
this belief was the impression of a number of PRPs that
mandatory allocations would be necessary at a majority of NPL
facilities because of the complex liability issues involved at
these facilities. In order to bridge these differences, S. 8
includes an up-front settlement process utilizing an ADR
neutral, followed by a mandatory allocation if this settlement
process proves to be unsuccessful.
Under section 137(e), an ADR neutral shall be appointed and
given 90 days to reach a settlement. After 90 days, if the ADR
neutral is successful in reaching a settlement that allocates
at least 90 percent of the recoverable costs, the Administrator
shall be required to adopt that settlement and provide 100
percent of the orphan shares. If a settlement has not been
reached, the Administrator and a majority of the parties can
agree to extend the negotiation, or alternatively, the parties
can proceed to a mandatory allocation under new section 137(f).
The allocation process under 137(f) shall be performed by a
neutral third-party allocator selected by EPA and the
allocation parties. In order to provide a fair, efficient and
impartial allocation, the allocator should make every effort to
streamline the process and minimize costs. Similarly, EPA shall
not establish any regulations or procedures that restrict the
discretion of the allocator in assigning estimated contribution
shares and the orphan shares provided in section 136. The
intention of these restrictions is to make clear that these
allocations are intended to be performed in the most
streamlined and efficient manner practicable without
unnecessary meddling by EPA and the Justice Department.
Although the PRPs can comment on the draft allocation report,
allocator's report can only be overturned by the courts if the
objecting party demonstrates that the allocator's determination
was arbitrary and capricious or otherwise not in accordance
with law.
After obtaining information from the PRPs regarding their
activities at the facility, the allocator shall prepare a non-
binding allocation report that specifies the percentage share
of each party, and any orphan share. The factors for allocation
outlined in section 137(g) are:
Lthe amount, toxicity, and mobility of hazardous
substances of each party;
Lthe degree of involvement of each party;
Lthe degree of care exercised with respect to
hazardous substances;
Lthe cooperation of each party in contributing to any
response action, and in providing complete and timely
information; and
Lsuch other equitable factors as the allocator
recommends, with the agreement of the allocation parties
and the United States.
The most important key to the success of the allocation
process is making an accurate estimate of what comprises the
orphan shares at a site. Section 137(i) provides that the
orphan shall include any shares attributable to insolvent and
defunct parties, a proportional share of the unattributable
shares at the site, and the difference between the share the
allocator determines is attributable to an allocation party and
the actual share paid by that party if the party is eligible
for an expedited settlement, or the liability of the party is
eliminated, limited or reduced by one of the other provisions
of this bill.
If, for example, a small business is relieved of liability
as a result of new section 107(s), the allocator may still need
to seek information from that party regarding its past disposal
practices so the allocator can correctly judge the appropriate
share that should be assigned to the orphan on behalf of that
party. Similarly, although parties may be subject to the 10
percent generator and transporter cap under 107(t)(1), an
allocator could determine that the actual share of their
liability is 5 percent. Conversely, if the allocator determines
that the actual share of the parties under 107(t)(1) is 15
percent, the difference between that share and the 10 percent
cap would also be assigned to the orphan.
Another important key to the allocation process is assuring
that accurate information is made available to the allocator.
Both the allocator and the ADR neutral have information-
gathering authorities, including the authority to issue
subpoenas. Information that is submitted to the allocator and
the ADR neutral by the PRPs is required to be kept confidential
by all persons involved in the allocation and is not
discoverable (if not independently discoverable or admissible)
in judicial or administrative proceedings. The submission of
information to the allocator or the ADR neutral does not
constitute a waiver of any privilege under any Federal or State
law.
The determination of the allocator is subject to joint
review and approval by the Administrator of EPA and the
Attorney General. Under new section 137(l), EPA and DOJ will
have 180 days after receipt of the report to determine if the
allocation was fair, reasonable, and consistent with the
objectives of this Act, or that the allocation process was
directly and substantially affected by bias, procedural error,
fraud, or unlawful conduct. The primary objective of this
section is to promote prompt and non-litigious resolution of
liability disputes at Superfund sites. Mere disagreement with
the allocated shares (including the orphan share) assigned by
the allocator is not sufficient to reject the allocator's
report.
Unless an allocation report is jointly rejected by EPA and
DOJ, parties subject to the allocation shall be entitled to
resolve their liability to the United States based on the
shares determined by the allocator, and in addition, shall
receive complete protection from all claims for contribution
for response costs incurred after the date of enactment.
Section 137(n) requires that the United States shall provide 90
percent of the estimated contribution shares assigned to the
orphan share and, if applicable, the estimated contribution
shares of non-settling parties, subject to specified terms and
conditions. These terms include:
La waiver of claims against the Fund for
reimbursement;
La waiver of contribution rights against all
potentially responsible parties;
La covenant not to sue, and assurances of performance
of the response action; and
La waiver of any challenge to any settlement that EPA
or the Attorney General enters into with any other party at
the facility.
The bill provides that an allocation party that incurs
response costs after the date of enactment that exceeds its
allocated share shall be entitled to prompt payment of the
excess amount from the Fund, subject to the 90 percent orphan
share limitation in section 137(n)(2)(A)(ii)(I). If the amount
of claims against the Fund by eligible allocation parties
exceed the monies available in the Fund in a given year, the
Administrator may delay payment until monies are available. The
priority for payment shall be based on the length of time that
has passed since settlement. Any delayed payment shall include
interest on the unpaid balance.
In order to provide the maximum incentive for the parties
to settle their liability, the bill includes a vigorous
enforcement hammer in section 137(q). If a party refuses to pay
its allocation share, EPA may commence an action against that
party to recover response costs including those not recovered
through settlements with other parties, the cost of the orphan
share, and the costs of the allocation process. Parties that do
not pay their allocation share are subject to joint, several,
strict, and retroactive liability.
In those instances where a party is found guilty of illegal
activities related to the disposal of hazardous substances, the
liability relief provisions of the bill shall not apply. In
particular, section 137(s) excludes from liability relief the
response costs of a party who has been found to be in violation
of an applicable State or Federal environmental statute by a
court or body of competent jurisdiction, if the violation
pertains to the hazardous substances which caused the
incurrence of response costs.
Sec. 505. Certain Facilities Owned by Local Governments
Summary
Section 505 of the Superfund Cleanup Acceleration Act would
amend section 107 of CERCLA to provide that a local government
that, as a result of tax forfeiture, abandonment, bankruptcy,
or foreclosure, has acquired a facility at which there has been
a release and that is contaminated by the release, shall not be
considered an owner or operator of the property for purposes of
CERCLA liability.
Discussion
Currently, EPA has guidance (See, Fact Sheet: The Effect of
Superfund on Involuntary Acquisitions of Contaminated Property
by Government Entities, 12/95) that exempts government agencies
from liability if they involuntarily become owners or operators
of contaminated property. However, this is only guidance and
has not been codified. Without codifying this language, local
governments still run the risk of being entangled in the
liability web of Superfund.
Without giving some assurance to local governments that
they will not be held liable when they become owners of these
properties, CERCLA ties the hands of local officials who want
to redevelop these properties and put them back into productive
use. Local governments should not be punished with the fear of
being held liable for simply carrying out their inherent
governmental duties. Indeed, without this type of protection,
there will be little incentive for local governments to take
advantage of the brownfield reforms contained in Title I of
this bill.
Effective brownfield redevelopment efforts must provide
adequate protection to local governments. For example, Cook
County, which is the taxing authority for Chicago, Illinois,
acquires property that has been involuntarily relinquished by
non-governmental parties. Section 505 would allow the City of
Chicago to acquire the property from the County for brownfield
development purposes because the property was originally
acquired by the County through tax foreclosure. Under this
example, the City of Chicago would not be held liable as an
owner or operator of the property if it is subsequently found
to be contaminated.
Sec. 506. Liability of Response Action Contractors
Summary
Section 506 of the Superfund Cleanup Acceleration Action
would modify section 119 of CERCLA to provide that response
action contractors (RACs) would receive additional liability
protection by being excluded from the definition of owners and
operators. Section 506(b) amends section 119(a) by extending
the current Federal negligence standard for RACs to State law
claims unless the State has adopted its own law regarding RAC
liability.
The indemnification provisions of existing section 119
would be extended to provide EPA the discretionary authority to
enter into indemnification agreements with RACs if site-
specific analysis demonstrates that the cleanup and liability
risks outweigh the availability of insurance. Section 506(g)
would extend the provisions of existing section 119 to
subcontractors.
The bill would establish a national uniform statute of
repose under a new section 119(h). It would limit a RAC's legal
exposure under CERCLA to 7 years after the date of completion
of work at any facility, unless the actions constitute gross
negligence or intentional misconduct.
Discussion
This section is intended to clarify the liability of RACs
under CERCLA to facilitate the cleanup of NPL sites in an
expeditious and cost-effective manner, using innovative
technologies and methodologies. These changes are needed to
overcome technical barriers to cleanup, and resolve any
ambiguity regarding the interpretations of CERCLA's liability
scheme. Courts have allowed parties with direct CERCLA
liability to bring suit under CERCLA against RACs, drawing
cleanup firms into the liability net without regard to fault or
negligence in cleanup activities. (See, e.g., Ganton
Technologies, Inc. v. Quadion Corporation, 834 F.Supp. 1018
(N.D. Ill. 1993) (holding in a motion for dismissal that
response action contractors could be held liable as operators
under CERCLA)).
Excluding RACs from the CERCLA definition of ``owner or
operator'' is needed to ensure that the original intentions of
CERCLA section 119 are left intact. Exempting RACs from the
liability standard under section 107 will encourage contractors
to participate in the CERCLA program, provide for innovative
and cost-effective solutions to hazardous waste problems, and
expedite the pace of cleanups. The trend in lawsuits to
classify RACs, who have performed cleanup activities at sites,
as site ``operators,'' ``transporters,'' ``generators,'' and
``arrangers'' under CERCLA, triggering strict liability even in
the absence of fault, is a misinterpretation of the law and
requires legislative clarification. This provision means that
RACs will be judged in accordance with section 119,--as was
originally intended by Congress--rather than being judged under
the standards of sections 106 and 107 which are applicable to
PRPs.
Section 506(b), which amends section 119(a) by extending
the current Federal negligence standard for RACs to State law
claims, is intended to supplement and not preempt State RAC
laws. It specifies that State laws governing RAC liability take
precedence over this provision. This provision is needed to
further address the significant rise in lawsuits against RACs
brought merely to have the RACs share in site cleanup costs. In
addition, this provision will protect against the rise in
lawsuits claiming recovery under State and common law, as well
as the rise in toxic tort lawsuits.
Sections 506(c), (d), and (e) enhance EPA's discretionary
authority to provide indemnification for claims brought against
RACs under both State and Federal law based on a site-specific
analysis demonstrating that cleanup and liability risks
outweigh the availability of insurance. These provisions have a
safeguard that requires RACs to undertake diligent efforts to
obtain insurance before EPA will make an indemnification
determination. They also require RACs to continue to look for
adequate insurance coverage each year thereafter. EPA would
have the authority to limit the indemnification provided to
RACs by specifying conditions and deductibles. Finally, these
provisions provide consistency between the provisions of
section 119 and the general provisions of CERCLA so that new
section 119 and the rest of CERCLA will apply to ``threatened''
as well as ``actual'' releases. Under current law, CERCLA
section 119 only applies to actual releases.
Sections 506(f) modifies the definition of response action
contract to specify that section 119 applies to the full range
of cleanup activities conducted under the authority of CERCLA.
Section 506(g) modifies the definition of RAC to expressly
include subcontractors, whose authority to assert the
provisions of section 119 has been in question. Subcontractors
are often small, specialty subcontractors or high-technology
``niche'' firms that are needed to ensure the applicability of
the full range of technical expertise in cleanup activities.
These subcontractors deserve the protections of section 119.
Section 506(h) addresses the applicability of section 119
to the surety firms that bond cleanup activities. Bonding firms
have expressed concern that the provisions of section 119 may
not apply to them if they should be required, under the terms
of bonds issued for cleanup activities, to complete jobs for
defaulting contractors (in the unlikely event that this
occurs). This section removes the sunset provisions on the
applicability of section 119 to bonding firms, reinstating the
applicability of section 119's provisions to these firms.
Section 506(i) establishes a uniform statute of repose
under a new section 119(h) of CERCLA. According to the American
Bar Association (ABA), statutes of repose ``serve to strike a
balance between the interests of the plaintiff in needing a
reasonable amount of time to seek redress for an injury
sustained as a result of the actions or inactions of the
defendant, and the interests of the defendant, who, after
passage of a reasonable amount of time, should be free from the
threat of litigation.'' The ABA also states that ``the
rationale behind such statutes is that, after passage of a
reasonable period of time, injuries or damages are probably a
result of improper maintenance by the owner or occupier,
misuse, or normal deterioration, rather than because of
negligent design or construction.'' This section specifies that
any hazardous waste engineering or cleanup firm's legal
exposure for CERCLA liability would only be for a specific
period of time 7 years after the date of completion of work at
any facility. After that time period has expired, these firms,
as is customary in the engineering and construction field,
would no longer be responsible for damages under CERCLA at the
site unless their actions constitute gross negligence or
intentional misconduct.
Sec. 507. Release of Evidence
Summary
Section 507 would amend CERCLA to require that the public
shall be provided with access to information furnished pursuant
to existing section 104(e) within 14 days of this information
being provided to EPA. In addition, orders issued pursuant to
CERCLA sections 106 and 107, and settlements entered into
pursuant to section 122, shall include the evidence of each
element of liability asserted against the PRP.
Discussion
As revised, section 104(e)(7)(A) of CERCLA requires EPA to
make available to the public within 14 days of receipt, the
documents and information obtained under authority of section
104(e). This provision is intended to confirm and expedite the
availability of this information to all interested parties,
including PRPs, and provide a streamlining of the Superfund
process. It is also intended to obviate the need for filing
Freedom of Information Act requests to obtain this information.
This amendment does not affect the protections otherwise
extended to confidential business information.
The revisions to sections 106(a) and 122(e) of CERCLA
require EPA to include certain information relative to
liability in all administrative orders and special notice
letters. The intention of this provision is that each PRP
receiving an order or letter should immediately be able to tell
what evidence EPA believes makes that party liable under
section 107. Sharing this information should help EPA and the
PRPs to correct any misunderstandings at the earliest possible
time, thereby facilitating the settlement process.
Sec. 508. Contribution Protection
Summary
Section 508 amends existing section 113(f)(2) to assure
that contribution protection provided by EPA applies to both
contribution actions under section 113 and cost recovery claims
under section 107.
Discussion
Over the last several years, there has been considerable
litigation as to whether a private part can pursue a cost
recovery claim under section 107. Parties incurring response
costs can use a section 107 cost recovery action in an attempt
to reach settling bars despite the bar on contribution actions
against settling parties. The courts which have addressed this
issue are not in agreement. This amendment provides assurances
to a settling party that regardless of the judicial resolution
of this dispute, the contribution protection provided by EPA
will be applicable.
Sec. 509. Treatment of Religious, Charitable, Scientific, and
Educational Organizations as Owners or Operators
Summary
Section 509 of the bill would amend CERCLA sections 101(20)
and 107 to provide that ``501(c)(3) organizations'' (religious,
charitable, scientific and educational organizations) that
receive a facility as a gift would have their liability as
owners or operators limited to the fair market value of the
facility.
Discussion
Many charitable and educational nonprofit organizations
currently face the prospect of receiving a gift of real
property that is contaminated. To prevent Superfund liability
from chilling the ability to accept such gifts, and to
discourage PRPs from seeking to spread the costs of liability
to charitable and educational organizations by making the gifts
of contaminated property, this section limits the liability of
such organizations, provided certain conditions are met.
Section 509(a) amends CERCLA section 101(20) to include in
the term ``owner or operator'' organizations that meet the
qualifications of section 501(c)(3) of the Internal Revenue
Code that are organized and operated exclusively for religious,
charitable, scientific, or educational purposes, and that hold
title to a vessel or facility.
Section 509(b) provides that an organization meeting the
terms of section 509(a) that holds title to a facility or
vessel as a result of a charitable gift, will have its
liability as an owner or operator limited to the fair market
value of the vessel or facility or the actual proceeds of the
sale of the vessel or facility. Section 509(b) makes the
limitation on liability conditional on various requirements to
ensure full cooperation with and access by the United States,
assistance in identifying and locating PRPs who recently
controlled the facility, a demonstration that all active
disposal occurred before the organization acquired the
facility, and proof that the organization did not cause or
contribute to a release or threat of release at the facility.
Sec. 510. Common Carriers
Summary
Section 510 makes technical corrections to section 107
regarding the liability of rail operators pursuant to
contractual arrangements.
Discussion
Section 510 exempts railroads from liability for the
transportation of hazardous substances under the terms of a
contract with a shipper who later mishandles the commodity.
Subsection 107(b)(3) of CERCLA enables an otherwise liable
party to defend claims on the basis that any release or threat
of release was due solely to the acts of a third party. This
third party defense is not available where a person has a
contractual relationship with that third party. However, the
contractual relationship limitation does not apply under
current law to rail carriers whose sole contractual
relationship is a transportation tariff.
Section 510 is a technical amendment that provides that the
rail exception encompasses railroad transportation contracts--
not just tariffs. This amendment is necessary to reflect
current practice in the industry. CERCLA was adopted in 1980,
the same year the Staggers Rail Act was enacted. Prior to
Staggers, railroads transported virtually all of their traffic
pursuant to tariffs. Staggers dramatically changed the railroad
transportation system by enabling railroads to use contracts
individually negotiated with shippers that are tailored to the
shippers' needs. Today, most rail shipments move under
individual contracts that are filed with the Surface
Transportation Board.
There is no rational basis for distinguishing between
transportation by tariff and transportation under contract. The
reason for the rail exemption is simple. Railroads are
obligated to transport hazardous substances, but they simply
should not be liable under CERCLA for acts of others that cause
contamination by virtue of such transportation.
Sec. 511. Limitation on Liability of Railroad Owners
Summary
Section 511 modifies section 107 of CERCLA to provide an
exemption for railroads from liability for contamination
located on or around spur tracks that run to, and often
through, facilities of shippers. Under current law, railroads
can be held liable as landowners for such contamination, even
when the contamination is caused by a shipper. Some have
attempted to impose liability on railroads as spur track
operators, again when the contamination is caused by a shipper.
Discussion
Specifically, section 511 provides an exemption from
liability under CERCLA to the extent that liability is based
solely on a person's status as an owner or operator of a
railroad spur track, as long as: (1) the spur tract provides
access to a main line or branch line track owned or operated by
the railroad; (2) the spur track is 10 miles long or less; and
(3) the railroad does not cause or contribute to a release or
threatened release at the spur track.
Railroads should not be liable under CERCLA when they are
merely carrying out their common carrier responsibilities to
serve shippers. Section 511 is intended to address situations
where a railroad has no ability to control its customers'
handling of hazardous substances, and it is the customers'
actions that result in releases of hazardous substances,
creating CERCLA liability. This spur track exemption apples
only where the railroad does not cause or contribute to the
release. If a railroad is in a position to prevent a hazardous
substance release, but fails to exercise due care and thereby
contributes to such a release, the railroad would continue to
be liable under CERCLA.
Sec. 512. Liability of Recyclers
Summary
Section 512 of the bill amends sections 101 and 107 of
CERCLA to provide an exemption from liability for response
costs for those who arrange to recycle seven specified
``recyclable materials'' at ``consuming facilities,'' and who
meet certain threshold demonstrations. Section 512 defines
consuming facilities as those facilities at which ``recyclable
material is handled, processed, reclaimed or otherwise
managed.'' The seven recyclable materials are paper, plastic,
glass, textiles, rubber (other than whole tires), metal, and
batteries.
Section 512 provides that the United States shall pay the
costs of all contribution shares attributable to persons
relieved of liability under this section at mandatory
allocation facilities (pursuant to new section 137) listed on
the NPL prior to the date of enactment of this section. With
respect to all other facilities, this section provides that the
liability of any party covered by this exemption shall be borne
by those parties who remain liable for section 107 response
costs at those facilities.
In order to qualify for the exemption, persons who arrange
for the recycling of recyclable material must demonstrate by a
preponderance of the evidence that: (1) the recyclable material
met a commercial specification grade; (2) a market existed for
the recyclable material; (3) a substantial portion of the
material is made available as feedstock for the manufacture of
a new saleable product; and either (a) the recyclable material
is a replacement or substitute for virgin raw material, or (b)
the product to be made from the recyclable material is a
replacement or substitute for a product made from a virgin raw
material.
Persons who would be liable under section 107 for response
costs in the absence of this exemption remain liable for such
costs if: (a) the person had an objectively reasonable basis to
believe at the time of the recycling transaction that: (i) the
recyclable material would not be recycled; (ii) the recyclable
material would be burned as fuel for energy recovery or
incineration; (iii) the consuming facility was not in
compliance with environmental law; or (iv) that a hazardous
substance had been added to the recyclable material for
purposes other than processing for recycling; (b) the person
fails to exercise reasonable care with respect to management or
handling of the material; (c) the recyclable material contains
more than 50 parts per million PCBs; or, (d) in the case of a
transaction involving paper, the material contains any
concentration of a hazardous substance that EPA determines to
present a significant risk to human health or the environment
as a result of its inclusion in the paper recycling process.
Discussion
The provisions in section 512 of the bill are intended to
promote greater opportunities for recycling by accomplishing
the following goals: (1) protecting persons engaged in the
collection of ``recyclable material'' for recycling from
liability under section 107(a)(1)(C) and section 107(a)(1)(D);
(2) maintaining and increasing current rates of recycling of
``recyclable material;'' and (3) ensuring that existing persons
engaged in legitimate recycling activities who are liable for
response costs at NPL facilities affected by this amendment are
not required to bear any increased liability by virtue of the
amendment.
Given the fact that Federal case law has imposed joint,
strict, several and retroactive liability, the recycling
community has become concerned that section 107 liability is
hampering, rather than encouraging, the recycling of
``recyclable material.'' The ``recyclable materials'' covered
by this section currently are recycled in significant
quantities. For example, from 1990 through 1995, approximately
95 percent of the lead available from lead-acid batteries was
recycled in this country. This high level of recycling promotes
environmental protection by ensuring that lead-bearing
materials are not discarded in a fashion that could create
adverse effects. However, many persons engaged in the recycling
effort associated with these materials are faced with potential
liability under CERCLA section 107.
The limited recycling exemption provided in section 512
will encourage continued, legitimate recycling. Thus, persons
who collect ``recyclable material'' under the conditions
described in this section will be relieved of CERCLA liability
under sections 107(a)(1)(C) and 107(a)(1)(D) for those
legitimate activities.
At the same time, those persons involved in legitimate
recycling activities who are not covered by this exemption will
not be unfairly penalized by being forced to assume any
additional liability at NPL sites. Instead, the United States
will fund the share of response costs that would have been
attributed to the newly-exempted recyclers. The intention of
this change is to encourage continued legitimate recycling
efforts.
Furthermore, in order to ensure this result, the language
provides that at NPL sites where some parties become exempt by
operation of this section, the exempt shares must be allocated
to the Fund. The basis for this allocation is described in
Section 504.
''Consuming facilities'' are to include only those
operations that are actively engaged in recycling activities
(as opposed to mere collection and sorting). Thus, this term
includes secondary lead smelters, but it does not include
facilities known as ``battery breakers.'' Battery breakers do
not qualify for the exemption set out in this section.
Under the term ``recyclable material,'' there is a specific
exclusion for ``shipping containers.'' The shipping container
exclusion encompasses the range of containers currently
processed for reuse in the United States. The size breakpoints
correspond to provisions in U.S. Department of Transportation
and United Nations regulations.
This provision avoids providing a liability exclusion for
environmental contamination that could result from scrapping
shipping containers that had been used to transport CERCLA
hazardous substances without first removing those hazardous
substances from the containers. The hazardous substances of
concern do not include small pieces of metal that may remain in
a container, or that may be an alloy or other material in the
container itself, such as chrome or nickel that are
metallurgically or chemically bonded in the container. In
addition, such containers are excluded from the definition of
``recyclable material'' as this would create an unintended
incentive for parties to scrap containers prematurely, rather
than having them processed for reuse. Current industry practice
is to remove hazardous substances from shipping containers in
these sizes before the containers are scrapped or processed for
reuse. This provision is intended to recognize and to encourage
the continuation of this practice.
The language defining ``scrap metal'' is intended to
embrace certain ``metal byproducts'' from copper and copper-
based alloys, and provides an exemption for only a very narrow
category of materials produced under certain conditions. Only
metal products produced from copper and copper-based alloys,
produced solely as the result of a secondary production and
recycling process (i.e., not from a primary smelting
operation), that are stored in an environmentally safe manner,
not speculatively accumulated, and meet all the other
requirements in this section for a legitimate recycling
transaction, are covered by this definition. This definition
does not include metal byproducts from other source materials
or from primary smelting operations.
This section allows any person that incurred response costs
for a response action taken prior to the date of enactment of
this section to bring a civil action for contribution against:
(1) any person that is liable as an owner or operator of the
affected facility; and (2) any person that, before this section
is enacted, received and failed to comply with an
administrative order issued under CERCLA section 104 or 106, or
received and did not accept a written offer from the United
States to enter into a consent decree or administrative order.
The exemption provided in this section shall not affect
either a judicial or administrative action that has become
final before the date the section is enacted, or a judicial
action commenced by the United States before the date of
enactment of this section.
Sec. 513. Requirement that Cooperation, Assistance and Access be
Provided
Summary
Section 513 of the bill would create a new section 107(y)
that makes qualification for the liability exemptions and
limitations under sections 107(o),(p),(r),(s),(t),(u),(v),(w)
or (x) or section 112(g) dependent on meeting certain criteria
for cooperation and access.
Discussion
The liability exemptions and limitations outlined in the
summary above, are dependent on: (1) full cooperation,
assistance, and access to the facility for the installation,
integrity, operation, and maintenance of the response action;
(2) not impeding the effectiveness or integrity of any
institutional control employed; and (3) complying with any
information request or administrative subpoena issued by the
President. This provision recognizes that while these parties
should receive liability relief, they should not be taking
actions that would impede the ability of EPA to ensure that
these sites are cleaned up in an expedited fashion.
TITLE VI--FEDERAL FACILITIES
Sec. 601. Transfer of Authorities
Summary
Section 601 authorizes a State to apply to EPA for transfer
of authorities at NPL-listed Federal facilities in a manner
similar to that in Title II for State delegation. It also
provides a dispute resolution process where one does not
already exist. The conditions for a transfer of authority are
generally the same as for those that apply at a non-Federal
facility. At sites where there is an existing interagency
agreement between EPA and a Federal agency regarding facility
cleanup, the section requires that there be no changes to the
terms of the interagency agreement. The section also specifies
that a remedial action selected by a State will be the only
remedial action conducted at the facility and the State is
precluded from enforcing other remedial action requirements
except those under a RCRA corrective action that was initiated
prior to enactment of this law.
Discussion
Section 601 authorizes a State to apply to EPA for transfer
of authorities at federally owned NPL facilities. EPA shall
enter into a transfer agreement under the same conditions
provided in section 201 of S. 8 for State delegation at a non-
Federal, NPL-listed facility. If a Federal facility does not
have an interagency agreement that specifies a dispute
resolution process between EPA and the Federal agency, the
transfer agreement shall require that the State agree with the
head of the Federal agency on a process for resolution of any
disputes regarding the selection of a remedial action for the
facility.
Under this section, the conditions for the State to
exercise authorities at a Federal facility are intended to be
the same as those that apply to a non-Federal facility (except
for the provisions regarding cost recovery). Specifically, a
State has sole authority to exercise the responsibilities it is
delegated under a transfer agreement. A State must carry out
that authority in the same manner as EPA. In addition, EPA can
withdraw a transfer of authority for failure to meet the Act's
requirements. Nonetheless, EPA shall retain authority to
recover response costs from responsible parties at a Federal
site for which cleanup authority has been transferred to a
State.
This section preserves existing interagency agreements
between EPA and the Federal agency that owns the site, unless
the terms are agreed to in writing by the Governor and the head
of the agency.
The remedial action selected for a facility by a transferee
State shall constitute the only remedial action required to be
conducted at the facility. The transferee State is also
precluded from enforcing any other remedial action requirement
except for any corrective action under RCRA that was initiated
prior to enactment of this law.
Section 601 also provides a dispute resolution process. If
the State does not concur in the remedial action proposed by
the Federal agency, the State shall engage in the dispute
resolution process provided for in the interagency agreement or
in paragraph (3)(B), except that the final level of resolution
shall be the head of the Federal agency and the Governor. If no
agreement is reached, the Governor shall make the final
determination regarding remedy selection. To compel
implementation of the State's selected remedy, the State must
bring a civil action in U.S. District Court.
This section recognizes that the States have an increased
technical ability to oversee cleanups at Federal facilities,
and if they so choose, should be able to take over this role
from EPA. Nonetheless, because this section requires the use of
Federal remedy selection requirements, it recognizes the unique
status of these facilities and the need to have a greater
degree of uniformity in the cleanup of the facilities. By
addressing both of these issues, this section attempts to
strike the appropriate balance between increased State control
and Federal facility consistency.
Sec. 602. Innovative Technologies for Remedial Action at Federal
Facilities
Summary
Section 602 allows the President to designate Federal
facilities on the NPL as a test bed for demonstration, testing
and evaluation of innovative technologies by Federal and State
agencies, and public and private entities. Specific
technologies selected at the chosen innovative technology sites
are subject to approval by EPA. In its annual report to
Congress on research, development, and demonstration, EPA shall
include information on the use of Federal facilities for
innovative technologies.
Discussion
The Committee recognizes the need for better mechanisms to
test, demonstrate, evaluate and apply innovative technologies
on Federal facilities, particularly for unique types of
contamination or special circumstances not typically
encountered at non-Federal facilities. There are thousands of
facilities owned or operated by the Department of Defense
(DOD), the Department of Energy (DOE) and other Federal
agencies that will require cleanup and there is a potential for
additional sites to be discovered. Depending upon the
contaminants, the media involved, and the applicable
requirements, estimates for the complete cleanup at Federal
facilities vary from hundreds of billions to over a trillion
dollars. Cleanup at some of these facilities has been limited
because it has been difficult to get regulatory concurrence for
testing new technologies that may require additional
development. The testing of innovative technologies is needed
at these facilities to develop cleanup solutions and reduce the
time and cost to complete site remediation.
Section 602 is intended to encourage the use of innovative
technologies at contaminated Federal facility sites to further
develop state-of-the-art technologies to provide cleanups that
are not only protective, but also faster and cheaper. It allows
the President to designate an NPL-listed Federal facility to be
a test bed for those technologies. In considering whether to
allow the application of a particular technology, the
Administrator may amend any agreements or orders regarding the
use of these technologies. Also, the Administrator is
authorized to approve or deny the use of a particular
innovative technology. Finally, Section 602 requires that EPA's
annual report to Congress on research, development, and
demonstration, shall include information on the use of Federal
facilities for innovative technologies.
Section 602 is not intended to duplicate any current
efforts such as the Strategic Environmental Research and
Development Program (SERDP) that was established by Congress in
1980 (Public Law 101-510). SERDP is a tri-agency cooperative
program that supports basic and applied research and
development of innovative technologies to help meet the
environmental obligations of DOD, DOE and EPA. Some of the
technical challenges facing DOD and DOE sites are similar, and
Congress continues to encourage Federal agencies to work
together cooperatively in developing new solutions to shared
problems. However, SERDP is DOD-focused and deals exclusively
with hazardous waste cleanup at four congressionally mandated
DOD sites. Consequently, SERDP does not fully address cleanup
issues at other Federal agencies, such as radiological
contamination at DOE facilities and acid mine drainage at
Department of Interior facilities.
This section is intended to provide an opportunity for one
or more Federal facilities to develop and test new and
innovative ways to address cleanup challenges, such as
radiological contamination, by providing real world sites to
test and further develop innovative technologies. The test beds
shall be used to collect appropriate data (e.g. cost and
performance) to improve the technologies efficiency and cost-
effectiveness in an effort to develop better solutions at
Federal facilities. These efforts shall ensure appropriate use
of funds and resources, and promote the maximum exchange of
information and transfer of technology not only between various
Federal agencies and departments, but also the private sector.
Section 602 will allow the Secretary of Energy, and other
Federal agencies without SERDP sites to better address their
unique problems. By providing this opportunity for a Federal
innovative technology test bed, it should also provide useful
and cost-effective cleanup solutions for both Federal and non-
Federal facilities.
Sec. 603. Full Compliance by Federal Entities and Facilities
Summary
Section 603 waives sovereign immunity at Federal
facilities, thereby allowing States that have enforcement and
liability authority similar to CERCLA sections 106 and 107 to
sue Federal agencies and to impose penalties. Expanding the
language of CERCLA's current waiver of immunity in paragraph
(1) of section 120(a), the bill's section 603(1) states that
Federal agencies are subject to all other Federal, State,
interstate, and local laws and requirements, both substantive
and procedural, relating to a response action, a restoration
action, or the management of a hazardous waste, pollutant, or
contaminant. Under this provision, Federal agencies must comply
with these laws and regulations in the same manner and to the
same extent as any nongovernmental entity.
Discussion
This section explicitly reaffirms and expands the waiver of
sovereign immunity in section 120 that was added to CERCLA by
the 1986 Superfund amendments. Section 603 is modeled after
language used in the Federal Facilities Compliance Act of 1992
and also employed in the Safe Drinking Water Amendments Act of
1995. The waiver subjects the Federal government to the full
range of available enforcement tools, making it liable for
penalties whether the violation of Federal, State, interstate,
or local law is a single or repeated occurrence, and regardless
of whether the penalty is punitive or coercive in nature.
Nevertheless, the State must be evenhanded in its actions. The
requirements of a State law may not be applied more stringently
to the Federal government than to other persons. The reference
to a ``restoration action or the management of a hazardous
waste'' in paragraph (1)(B)(I) of new section 120(a) is
intended to show that the waiver of immunity extends to the
restoration of injured natural resources, and includes
corrective actions under the hazardous waste management
provisions of RCRA.
The section further provides that agents, employees, and
officers of the United States shall not be personally subject
to civil penalties for any acts or omissions within the scope
of their duties. They are not immune from enforcement of
injunctive relief or criminal sanctions.
The section also authorizes the Administrator to issue
section 106 administrative orders to any Federal agency in the
same manner and under the same circumstances as it would
initiate such action against other parties. In the past, the
Department of Justice has declined to bring actions against
Federal agencies under the theory of the unitary executive.
This provision allows the Administrator to enforce compliance.
The other Federal agency is given an opportunity to be heard,
and an administrative order would not become final until the
agency has an opportunity to confer with the Administrator.
Any fines and penalties collected by a State from the
Federal government are required to be used only for projects to
improve or protect the environment or, more broadly, to defray
the costs of environmental protection or enforcement unless the
State's constitution or a State law in effect at the time of
the bill's enactment requires a different use of the funds.
The existence of an interagency agreement between EPA and a
Federal agency shall not impair or diminish the enforceability
of a Federal or State law unless the requirements of the law
were specifically addressed in the interagency agreement or
were specifically waived.
DOD ``strongly opposed'' section 603 of the bill on several
grounds. The DOD argued that the existing waiver of sovereign
immunity was already total, and that all provisions of CERCLA
already apply to Federal agencies. DOD maintains that any
friction with the States occurs when the States insist on
following their own cleanup process rather than CERCLA's. DOD
already complies with substantive State standards through the
use of ARARs under section 122(d). DOD maintains that requiring
it to comply with a patchwork of State processes would slow its
cleanups. DOD is especially concerned about the disruption that
could result when a State's demands for response activities
necessitates a reordering of DOD's risk-based priorities, and
causes financial impacts exceeding DOD's appropriation,
possibly affecting its other missions. During markup, these
issues were discussed, as was the importance of protecting
public health and the environment. It was ultimately determined
that the President's authority under CERCLA section 120(j) to
issue orders regarding response actions at a specified site or
DOE or DOD facility was sufficient to protect the national
security interests of the United States.
TITLE VII--NATURAL RESOURCE DAMAGES
Sec. 701. Restoration of Natural Resources
Summary
Section 107(f) of CERCLA provides that natural resource
trustees (the Federal government, Indian Tribes, and States)
may recover damages for the costs of restoring, replacing or
acquiring the equivalent of natural resources injured,
destroyed or lost by the release of a hazardous substance.
Title VII of the bill makes a series of structural and
substantive changes to section 107(f) to clarify the scope of
liability under the NRD program.
Section 701(a) of the bill sets forth the measure of
damages for a NRD. Under that section, a person may be held
liable for the costs of restoring or replacing resources that
have been injured, providing temporary replacements until the
resource is restored, and the reasonable costs of assessing the
extent of injury. In a series of limitations on liability, the
bill provides that there shall be no liability for: the loss or
destruction of natural resources identified in an environmental
impact statement or comparable environmental analysis;
restoration or replacement costs if the injury occurred wholly
before 1980; lost use damages for uses that might have occurred
before 1980; or the costs of any study relying on contingent
valuation methodologies (CVM). The bill also revises the
prohibition against double recovery to clarify that a person
cannot be held liable for natural resource damages under
Superfund if damages have been recovered by another trustee
under Superfund or any other Federal or State law for the same
injury to the same resource.
The bill specifically authorizes trustees to extend the
payment period for natural resource damages, depending on the
extent of the damages, the ability of the person to pay, and
the period of time over which the restoration activities are
expected to occur.
Section 701(b) of the bill establishes procedures for
trustees to assess the injury to a natural resource and to
select the measures to restore the resource. Trustees are
directed to consider alternative measures to achieve the
restoration of the resource, including at least one alternative
that relies on natural recovery. The final selection of
restoration measures must achieve an appropriate balance among
the following factors: technical feasibility; cost-
effectiveness; and the time period in which restoration is
likely to be achieved. In selecting restoration measures, the
bill authorizes trustees to take into consideration the unique
intrinsic values of a resource to provide for accelerated or
enhanced restoration to replace the intrinsic values lost.
However, if an accelerated or enhanced restoration alternative
is selected, the incremental costs associated with that
alternative must be reasonable.
Section 701(c) requires the Secretary of Interior to issue
amended regulations governing the assessment of natural
resource damages within 2 years after enactment. Among other
things, the amended regulations must identify protocols based
on scientifically valid principles for conducting natural
resource damage assessments; require trustees to take into
consideration the ability of a resource to recover naturally
when selecting restoration alternatives; provide for
designation of a lead administration trustee at sites where
multiple trustees are involved; and require that injury
assessments and restoration planning be based on site-specific
information. The issuance of these amended regulations cannot
be used to revive claims that under the existing law have
expired because they were not filed within 3 years of the date
of issuance of the current regulations.
Sec. 702. Consistency Between Response Actions and Resource Restoration
Standards
Section 702 addresses the need to ensure consistency
between response actions and resource restoration measures. It
directs trustees to take into account the results or expected
results of any removal or remedial action in selecting a
restoration alternative. Conversely, remedial actions must take
into account the potential for injury to natural resources.
Sec. 703. Contribution
Section 703 authorizes a person to seek contribution from
other responsible persons for natural resource damages.
Sec. 704. Mediation
Section 704 requires trustees seeking natural resource
damages to initiate mediation of their claims within 120 days
after commencing an action for damages.
Sec. 705. Coeur d'Alene Basin
Section 705 establishes a new pilot program for the
restoration of the Coeur d'Alene Basin. The provision
authorizes an advisory group, consisting of Federal, State,
Tribal and local representatives, industry representatives and
citizens, to jointly develop a restoration plan for the Coeur
d'Alene Basin. Funding is also authorized to assist in the
development and implementation of the restoration plan.
Sec. 706. Effective Date
Section 706 provides that these amendments shall not apply
to cases that were in trial before July 1, 1997, or for which
there was a final judgment before that date.
Discussion
Measure of Damages. The amendments to Section 107(f)
reflect the need to clarify that the objective of the natural
resource damages program is to provide for the full restoration
of natural resources that have been injured, destroyed or lost
as a result of a release of hazardous substances. The NRD
program is not intended to duplicate the remedial action
program under CERCLA or to encourage additional litigation by
promoting the assessment of potentially arbitrary monetary
damages. The need for this clarification has become more urgent
as the number of potential and actual NRD claims has increased
dramatically in recent years, as has the number of claims
seeking significant damages.
Therefore, the amendments provide for the first time a
clear statement of what a person may be held liable for in a
situation where a natural resource has been injured. Under new
section 107(f)(1)(C), a person is responsible for the costs
associated with restoring the resource to the baseline
condition that it would have been in but for the release of the
hazardous substance. The fundamental principle is that
responsible persons should be responsible for redressing the
impacts of their activities on the resource, but not those
resulting from the activities of others or from other natural
causes. As under existing law, a person may, in the
alternative, be required to provide for replacement resources
or acquire equivalent resources.
There has been considerable controversy over the issue of
what restoration of a resource means. In general, the decision
of what constitutes full restoration will be fact-specific and
will have to be determined by the trustees on a case-by-case
basis, subject to appropriate judicial review. Restoration will
typically involve a variety of on-site and off-site measures,
including revegetation efforts, habitat enhancements for fish
and wildlife, wetlands restoration, and natural restoration. In
some situations, where additional post-remedy contamination
levels continue to impair the sustainability or ecologically
significant functions of a resource, restoration measures may
also include additional removal of sources of contamination.
However, this language is not intended to require responsible
parties to remove every particle of a contaminant or to
replicate the precise pre-injury biological, chemical and
physical condition of an injured resource. Temporary effects on
individual organisms and insignificant changes in resources
will not necessarily give rise to a natural resource damages
claim. Instead, restoration measures in most cases should focus
on reestablishing the ecologically significant functions of a
resource. \4\
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\4\ EPA has recognized these ecological principles in its
development of ecological risk assessment guidelines, emphasizing the
importance of determining the ``ecological significance'' of risks
before making regulatory decisions. EPA's 1992 Framework for Ecological
Risk Assessment states that an ecological risk assessment, first,
should focus on evaluating only ecologically relevant effects, and
second, should characterize the overall ecological risk based on the
its importance to an ecosystem's structure or function (its
``ecological significance''). Framework for Ecological Risk Assessment
at 12-13, 33-34 (Feb. 1992). EPA has reinforced these concepts in its
proposed Draft Guidelines for Ecological Risk Assessment in which EPA
elaborates on how to determine the ``ecological significance'' of a
risk, thus confirming the importance of taking into account natural
biological response mechanisms, including recovery potential and
natural variability.
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The completion of restoration in any given case may take a
substantial period of time during which the public may be
deprived of significant services that would otherwise have been
provided by the resource, such as recreational fishing or
wildlife viewing opportunities. Thus, the amendments expressly
provide that a person may be responsible for the costs of
providing interim replacements for injured resources while the
restoration is ongoing. For example, if restoration of a world
class trout stream will take 10 years, the responsible party
may be required to provide alternative fishing opportunities
for the public until the trout stream is fully restored.
Finally, the responsible person will also be liable for the
reasonable costs of assessing the injury to the natural
resource. The amendments provide, however, that trustees may
not recover for the costs of conducting studies that rely on
CVM methodologies. CVM studies are traditionally used to try to
determine the ``non-use'' or ``passive use'' values associated
with a resource and are used by the National Oceanic and
Atmospheric Administration (NOAA) to assess non-use values for
oil spills under the Oil Pollution Act. The use and reliability
of CVM studies, however, have been the subject of considerable
controversy. On the one hand, critics argue that CVM studies
significantly overstate the value of resources. On the other
hand, a panel of economists convened by NOAA in 1993, concluded
that, if conducted in accordance with strict guidelines, CVM
studies could produce meaningful results. The amendments do not
attempt to resolve this conflict. Under these amendments, there
is no separate recovery of monetary damages for losses
associated with non-use or passive values. Intrinsic values are
taken into consideration as a scaling factor in the selection
of restoration measures. Therefore, there is no longer any
incentive for trustees to conduct CVM studies.
Selection of Restoration Alternatives. Section 701(b)
amends CERCLA section 107(f) to establish statutory guidelines
for the selection of restoration measures. The amendments
provide that trustees are to consider a range of alternatives
to achieve the objective of restoring an injured resource,
including at least one alternative that relies on natural
restoration. When making the final selection of the restoration
measures that will be implemented, trustees are directed to
select those measures that are technically feasible, cost-
effective, and achieve restoration in a timely fashion.
The amendments do not assume a preference either for
restoration measures that will achieve the restoration in the
shortest time period possible (which are in many cases also
likely to be the most costly restoration alternatives), or for
those restoration measures that are the least costly. Any
decision regarding the selection of restoration measures is
necessarily driven by the specific facts of the situation--the
nature of the resource injured, the availability of alternative
or replacement resources, the public uses of the resource, any
intrinsic values associated with the resource, the availability
of technically feasible measures, and the costs associated with
those measures. In some cases, for example, the restoration
alternative that depends on natural restoration may be most
appropriate because restoration will be achieved in a
relatively short period of time or other alternatives are
either too costly (i.e., not cost-effective) or technically
infeasible. Conversely, in some cases, trustees may select
measures that achieve restoration as quickly as possible
because those measures are the most cost-effective. In most
cases, the restoration alternative selected will likely fall
somewhere in between these two extremes. The amendments provide
trustees the flexibility to select the restoration measures
that achieve the appropriate balance among technical
feasibility, cost, and timeliness.
Intrinsic Values. New section 107(f)(3)(B) expressly
authorizes trustees to take into consideration any unique
intrinsic values associated with a resource when selecting a
restoration alternative. This provision is not intended to
create a cause of action for monetary damages for injury to or
loss of those intrinsic values or, more broadly, for the loss
of so-called non-use values associated with a resource.
Instead, it is intended to recognize that certain resources,
such as wilderness areas, national monuments like the Grand
Canyon, and endangered and threatened species, have unique
characteristics that are lost when the resource is injured and
that cannot be replaced until the resource is fully restored.
In recognition of these special characteristics, the amendments
allow trustees to justify the selection of an accelerated or
enhanced restoration alternative that will replace the lost
intrinsic values. Thus, for example, if a hazardous substance
were released in Yosemite, the trustees might select
restoration measures to restore the resource in a shorter
period of time than they otherwise would have, even if the
measures might not be the most cost-effective, in order to
restore the intrinsic value of Yosemite. Similarly, if the
release of a hazardous substance caused the extirpation of a
population of endangered birds in an area, the trustees might
require enhanced restoration to include introduction of a
related species and habitat improvement measures to ensure the
viability of the introduced population. In either case, the
consideration of intrinsic values is intended to provide
trustees some additional flexibility in limited situations to
tailor the selection of restoration alternatives to the nature
of the injury to the resource.
Site-Specific Basis of Assessment. New section 107(f)(4)(A)
contemplates that the assessment of injury to a natural
resource and the selection of restoration alternatives will be
based on site-specific information, to the extent that this
information is readily available. Because, as is noted above,
many of the decisions relating to the selection of appropriate
restoration measures are driven largely by site-specific
factual considerations, this provision is intended to encourage
trustees to obtain fact-specific information and data whenever
it is practicable. The importance of fact-specific information
is particularly important in situations where the nature of the
resource injured is unique or where the extent of the injury,
and therefore the potential restoration obligations, is
significant.
This provision is not intended to eliminate the use of
models, literature, previously obtained data, or other
simplified assessment tools in appropriate circumstances. Even
when models and other simplified assessment tools are used,
however, fact-specific information and data should be used to
the extent that it is available. All assessment methodologies
must be based on generally accepted scientific principles,
ensuring the validity and reliability of assessment results,
and should be supported by appropriate, site-specific data to
the extent practicable. However, to the extent practicable,
fact-specific information and data should also be incorporated
into the assumptions for any models or simplified assessment
tools.
Prohibition Against Double Recovery. New section
107(f)(1)(D)(ii) clarifies language in the original statute's
prohibition against double recovery. When natural resources
have been injured, destroyed or lost as a result of releases of
hazardous substances, responsible parties should bear the cost
of restoring, replacing, or acquiring the equivalent of the
resources, within the limits imposed by section 107. The
responsible parties, however, should not have to pay that cost
more than once. Therefore, new section 107(f)(1)(D)(ii)
prohibits one or more trustees from obtaining duplicative
recoveries under one or more statutes (including CERCLA and
other Federal, State and local statutes) or common law, for the
same resource injury. If a State trustee has recovered for
injuries to a resource under its State law, for example, it may
not also recover damages for the same injury to the same
resource under CERCLA; it may, however, recover for different
injuries to the same resource. Similarly, the fact that a State
trustee has recovered for injuries to a resource subject to its
trusteeship will not necessarily preclude a Federal or Tribal
trustee from recovering for different injuries to the resource.
The pivotal question will be whether the damages claimed are
for the same injury to the same resource or, instead, for
either different injuries or injuries to different resources.
Prohibition Against Retroactive Liability. New section
107(f)(1)(D) essentially retains the original CERCLA
prohibition against retroactive NRD liability for injury that
occurred wholly before the enactment of CERCLA in 1980, with a
clarifying change substituting the word ``injury'' for the word
``damages.'' The term damages in this context was intended to
mean injury to a resource, not ``damages'' in the legal sense.
This change makes clear that even though a responsible party is
not liable for injury to natural resources that occurred prior
to the passage of CERCLA, the party would remain potentially
liable for new or further injury that occurred after December
11, 1980. The amendments further provide that trustees cannot
recover damages for the lost use of resources prior to December
11, 1980. This prohibition on the recovery of past lost use
damages is consistent with current Administration practice.
Right To De Novo Trial. S. 8 does not change existing law
regarding the standard of judicial review of NRD claims. Recent
judicial decisions have held that NRD claims should be tried de
novo, based on the presentation of all pertinent evidence to
the trier of fact in accordance with the normal rules of
evidence. State of Montana v. Atlantic Richfield Company, No.
CV-83-317-HLN-PGH, (USDC D. MT March 3, 1997). United States of
America v. ASARCO Incorporated, et al., No. CV 96-0122-N-EJL,
(USDC D. Idaho March 31, 1998).
Statute of Limitations. Section 113(g) of CERCLA
establishes a two-pronged statute of limitations for the filing
of NRD claims at non-NPL sites. Under this provision, claims
must be filed within 3 years of the later of (1) the date of
discovery of the resource injury and its relationship to the
release of the hazardous substance, or (2) the date that NRD
assessment regulations are promulgated. In order to address
potential concerns that the provisions in section 701(c) that
require the issuance of amended assessment regulations may be
interpreted to reopen the statute of limitations for claims
that have expired, the amendments expressly state that the
issuance of these amended regulations shall not extend the
period in which an action must have been filed.
Effective Date. The amendments do not apply to cases in
which trial was begun before July 1, 1997, or in which final
judgments were entered before that date. This provision is
intended to promote judicial efficiency by allowing cases that
have been closed to remain closed and, in one situation where a
case is currently in trial, to allow that proceeding to
continue under the law as it existed at the time the trial
commenced. These amendments and their legislative history are
not intended, however, to be considered or relied upon or used
to create any negative inferences in those cases with respect
to the state of the law.
Causation. The amendments do not change the existing
statutory scheme requiring that trustees prove that a
defendant's release caused the natural resource injury.
TITLE VIII--MISCELLANEOUS
Sec. 801. Results-Oriented Cleanup Approach
Summary
Section 801 amends CERCLA section 105(a) to require the use
of a results-oriented cleanup approach. EPA would modify the
NCP to minimize the time required to conduct response measures
and to reduce the potential for exposure to hazardous
substances, pollutants, and contaminants in an efficient,
timely, and cost-effective manner. The new procedures apply to
the entire response action and require expedited facility
evaluations, timely negotiation of response action goals, a
single engineering study, streamlined oversight of response
actions, and consultation with interested parties throughout
the response action. The new procedures are subject to the
requirements of CERCLA section 117 (public participation),
section 120 (Federal facilities), section 121 (cleanup
standards), and new section 133 (amendments to the NCP).
Discussion
The NCP is EPA's regulation for Federal response actions
under CERCLA. It sets out the organizational structure and
procedures for preparing for and responding to releases of
hazardous substances, pollutants, and contaminants. (It also
serves the same purpose for responses to discharges of oil
under the Clean Water Act, as amended by the Oil Pollution Act
of 1990.) CERCLA section 105(a) lays out in detail the contents
of the NCP, and section 801 of the bill adds to the plan a
requirement for a results-oriented approach to response actions
in new paragraph (11).
Results-oriented cleanup language has been in Superfund
reauthorization bills in both Houses of Congress since 1994,
when the American Institute of Chemical Engineers presented to
Congress its position paper, An Engineering Approach to
Superfund Cleanups. It is an engineering-based procedure that
permits compression of the multiple Superfund study processes
into a single engineering study. It identifies the substances
of concern at a site early in the process uses a site-specific
risk assessment based on realistic assumptions, and then
identifies and implements a remedy in a timely manner. The
results-oriented approach focuses on the results rather than
the process, establishing clear cleanup goals that reduce the
risks at the site in a timely fashion.
Sec. 802. Obligations from the Fund for Response Actions
Summary
Superfund removal actions are short-term interventions,
including responses to emergencies, that can be undertaken at
both NPL and non-NPL sites. The section raises the statutory
limits on removal actions from $2 million to $5 million, and
from 12 months to 3 years, reflecting the actual cost and time
experienced in recent years.
Discussion
Despite the many criticisms of the Superfund remedial
action program, the removal program has generally been
commended. Through fiscal year 1997, EPA has conducted
approximately 5,000 removal actions, of which more than 1,400
were at NPL facilities. In the last fiscal year alone, there
were in excess of 250 removal actions, 35 of them at NPL
facilities. The Superfund removal program is available to
address them as long as CERCLA and NCP response criteria are
met. The potential and actual releases of hazardous substances
are extremely variable in size, threat, and location, requiring
a flexible approach. Some of the response activities that are
common to many removal actions include:
Lsampling drums, storage tanks, lagoons, surface
water, groundwater, and the surrounding soil and air;
Linstalling security fences and providing other
security measures;
Lexcavating and disposing of contaminated soil,
containers and debris;
Lpumping out contaminated liquids from overflowing
lagoons;
Lcollecting contaminants through drainage systems or
skimming devices; and
Lproviding alternate water supplies, evacuating
threatened individuals, and providing temporary shelter.
Occasionally, unforeseen events such as severe weather,
vandalism, fire, or explosions require a return to the site and
initiation of additional response activities.
In addition to expanding the scope and time of the response
actions, section 802 broadens the range of activities that can
be performed, and takes into account the dynamic situation that
can exist at removal sites by replacing the requirement that
the removal action be ``consistent with the remedial action
taken,'' with a requirement that the action be ``not
inconsistent with any remedial action that has been selected or
is anticipated....'' EPA and State personnel have suggested
that with additional time, flexibility and financial authority,
emergency responders could address the entirety of the cleanup
issues associated with a given site. The changes in section 802
are intended to provide that authority. Providing additional
flexibility to project managers who are overseeing these
emergency removal activities is intended to encourage
additional use of these authorities and avoid the need for
subsequent remedial actions.
Sec. 803. Recycled Oil
Summary
This section gives automobile dealers the same protection
against liability under CERCLA sections 107(a)(3)-(4) as
service station dealers enjoy. The provision adds automobile
dealers to the definition of ``service station dealer'' under
CERCLA section 101(37), and includes automobile dealers in the
exemption from liability for releases occurring after the
dealer has relinquished control of recycled oil under CERCLA
section 114(c).
Discussion
The recycling of used oil in the United States depends in
large measure on the cooperative actions of citizens, including
small businesses such as service station dealers who perform a
community service by accepting used oil from do-it-yourself oil
changers and passing it on to recyclers. This activity, and the
management of used oil in general, is regulated under RCRA and
its regulations (40 CFR Part 279). To encourage the continuing
participation of this important link in the system that returns
old oil for reuse, CERCLA currently provides a liability
exemption for service station dealers who are willing to accept
used oil, a substance that could be categorized a hazardous
waste if not properly handled.
While current law includes a ``similar retail establishment
engaged in the business of selling . . . motor vehicles''
within the definition of ``service station dealer,'' the
amendments made by section 803 explicitly extend the protection
from CERCLA liability to automobile dealers and dealerships. To
qualify for the exemption, the service station, automobile
dealer or similar retail establishment must derive a
significant percentage of its gross income from the fueling,
repairing, servicing, or selling of motor vehicles, and must
accept used oil for collection, accumulation, and delivery to
an oil recycling facility.
Sec. 804. Law Enforcement Agencies Not Included as an Owner or Operator
Summary
This section amends the definition of ``owner or operator''
(CERCLA section 101(20)) to exclude a law enforcement agency
that acquires ownership or control of a facility where there is
a release or threatened release of a hazardous substance
``through seizure or otherwise in connection with law
enforcement activity.''
Discussion
Increasingly, sites involving criminal activity also
involve environmental contamination. One growing problem for
law enforcement agencies concerns the seizure of clandestine
drug laboratories, which typically are contaminated with
hazardous chemicals and wastes. The number of these labs has
increased rapidly in recent years. The U.S. Drug Enforcement
Agency (DEA) cleaned up 325 seized drug labs in fiscal year
1995, 738 labs in fiscal year 1996, and 1,383 labs in fiscal
year 1997. State and local authorities have also seized many
illicit labs.
At issue is whether law enforcement agencies, upon seizing
drug labs or other contaminated properties, become ``owners or
operators'' of these sites under CERCLA and thus subject to
Superfund liability. These illicit laboratories contain
hazardous chemicals and wastes and may contaminate water
sources and soil. The DEA reports that contamination may spread
through various means: lab operators may dump or spill
chemicals, or pour wastes down the sink or toilet into water
supplies, or onto the surrounding ground. Beyond the immediate
health hazards facing the law enforcement officers is this
question of liability for cleaning up these labs as Superfund
sites. This concern over potential exposure to Superfund
liability has caused problems for officers attempting to carry
out their duties. In some cases, law enforcement agencies have
not seized homes known to contain these labs because of this
liability issue, and, consequently, the potential for assuming
Superfund liability has sometimes had the effect of deterring
law enforcement.
Congress never intended for liability to extend to these
circumstances. State and local law enforcement agencies
currently are excluded from the definition of ``owner or
operator'' under section 101(20)(D). This amendment is intended
to clarify that State and local law enforcement agencies do not
become owners or operators for purposes of CERCLA by acquiring
ownership or control of a facility through seizure or other law
enforcement activity.
Sec. 805. Lead in Soil
Summary
The bill adds a new section at the end of CERCLA Title I
requiring EPA to contract with the Health Effects Institute to
establish and administer an independent scientific panel to
review the existing science on the relationship between lead in
residential soil and blood lead levels and to report to
Congress and EPA. EPA is directed to use the study results to
promulgate a rule establishing procedures for risk assessment
and remedy selection for facilities with high lead levels in
soil.
Discussion
CERCLA requires ATSDR and EPA jointly to rank, in order of
priority, hazardous substances found at sites on the NPL. The
three criteria for ranking are frequency of occurrence at NPL
sites, toxicity, and potential for human exposure. Based on
these criteria, lead is the hazardous substance of highest
priority. Infants and young children who ingest small amounts
of lead may suffer irreversible damage to their developing
nervous systems, including reduced IQ, reading disabilities,
and other learning and behavioral problems. Only slightly
higher lead levels may threaten the health of exposed adults.
Approximately 400 NPL facilities have lead levels in soil that
are elevated above natural background. Some of these facilities
require emergency action to restrict exposure to highly
contaminated areas. Others require extensive, long-term
responses to remove or cover soil. Still others may require no
remedial action at all. The appropriate response depends on
site-specific factors, including the chemical and physical form
of lead that is present, its geographical distribution, the
land use and potential for exposure, and whether or not there
are other sources of lead exposure that may elevate the health
risk.
Residents near NPL facilities that are contaminated with
lead due to mining activity have complained that EPA has
planned remedial action without regard to whether measured
blood lead levels in children indicate that they have been
exposed to lead in the environment. Similar complaints have
been raised in response to NPL listing and remedial
investigations in other communities whose exposure to lead has
been in a form which they thought to be relatively benign, such
as spent ammunition (as compared to the lead from lead-based
paint or gasoline, for example). EPA and ATSDR argue, however,
that the risk to children in such communities is real and often
cannot be assessed accurately through community blood surveys.
They further argue that any further exposure risks should be
prevented. They maintain remediation should not be delayed
until individual children show clear evidence of elevated lead
exposure. On the other hand, EPA has acknowledged that risk
assessments before about 1994 may have relied too heavily on
assumptions and default values due to an inadequate scientific
understanding of the factors affecting lead intake and uptake.
Recent research has improved the scientific basis for
predicting blood lead levels based on lead levels in soil. For
example, the Urban Soil Lead Abatement Demonstration Project, a
three-city pilot project mandated by CERCLA section 111(a)(6),
examined the impact of residential soil lead abatement projects
on blood lead levels in children living in Baltimore, Boston,
and Cincinnati. The integrated EPA report on the studies
concluded that soil lead abatement results in reduced exposure
only under certain conditions when soil is a significant source
of lead in the child's environment. The report identified five
factors that are likely to be important: the child's past
history of exposure to lead; the initial soil lead
concentration and magnitude of the reduction in soil lead due
to abatement; the initial interior house dust lead loading and
magnitude of reduction due to abatement; the relative magnitude
of other sources of lead exposure; and the relative strength of
the soil exposure pathway. Correlations between lead-
contaminated soil and blood lead levels have been influenced in
other specific studies by a child's access to soil, behavior
patterns, presence of ground cover, seasonal variation of
exposure conditions, particle size and composition of the lead
compounds found at various sites, and exposure pathways.
Differences in other factors (such as a child's nutritional
status) may also be important.
EPA introduced a new Integrated Exposure and Uptake
Biokinetic (IEUBK) model and guidance (approved by EPA's
independent Scientific Advisory Board) in 1994, which has
improved the sensitivity of risk assessments to site-specific
factors. For the past 3 years, EPA has worked to validate its
model through extensive field testing and consultation with
experts, including stakeholders. Nevertheless, there are
scientists who criticize the current EPA model. An objective
review of the science in general, and of EPA model in
particular, might help resolve the controversy.
The bill amends CERCLA by adding a new section 138. The new
section directs EPA to enter into a contract with the Health
Effects Institute, within 30 days of bill enactment, to
administer a scientific review of the science on the
relationship between lead in residential soil and blood lead
levels. The Health Effects Institute is an independent,
nonprofit corporation chartered in 1980 to provide high-
quality, impartial, and relevant science on the health effects
of pollutants in the environment. It is supported jointly by
EPA and industry.
The review panel will consist of university-based
scientists and statisticians and the principal investigators of
the three urban soil lead abatement studies conducted under
CERCLA section 111(a)(6). The review is required to consider
whether, and to what extent, blood lead levels are affected by
removal of lead-containing soil; whether the type of lead, soil
type, and other factors affect blood lead levels; and
alternative methodologies for modeling the impact of soil lead
levels on blood lead levels. This review may be facilitated by
ongoing EPA workshops and pending reports on the validity of
the IEUBK and other lead exposure models. The bill requires the
review panel to complete its task within 180 days, and to
provide an opportunity for peer review of and public comment on
their work. The final report should be delivered to Congress
and EPA within 30 days of completing the review.
The bill directs EPA to propose a regulation based on and
consistent with the results of the review within 180 days of
reporting to Congress. The regulation is to govern the conduct
of risk assessments and remedy selection at facilities where
lead in soil is a contaminant of concern. The regulation may
incorporate the current EPA guidance for use of the IEUBK model
to the extent that it is consistent with the results of the
scientific review. Within 180 days of proposing a regulation,
after receiving public comments, EPA is required to promulgate
the final regulation. The regulation will address the role of
biomonitoring data (e.g., blood testing) and the use of
facility-specific data in risk assessments, as well as a
process for reconciling the results of risk estimates or
predictions with any available empirical data on lead levels in
blood. Reconciliation requires a technical comparison of
predicted values with available data, a written explanation of
any difference between them, and selection of the risk value,
whether predicted or measured, that is supported by the weight
of the scientific evidence.
Sec. 806. Pesticides Applied in Compliance with Law
Summary
This section clarifies that a release of a hazardous
substance into the environment resulting from the required
application of a pesticide to treat livestock will not trigger
CERCLA liability under section 107. The release of the
hazardous substance (i.e., the pesticide, insecticide, or
similar product) must have occurred prior to enactment of the
bill, and must have been in compliance with the Federal or
State law requiring the treatment of livestock.
Discussion
CERCLA liability under section 107 does not attach to the
``application of a pesticide product that is registered under
the Federal Insecticide, Fungicide, and Rodenticide Act.'' That
exemption in subsection 107(i) is qualified in the following
sentence, which says that it does not ``affect or modify . . .
the obligations or liability . . . under any other provision of
State or Federal law . . . for damages, injury, or loss
resulting from a release of any hazardous substance or for
removal or remedial action . . . .''
The amendment made by section 802 would relieve a person
from liability for such a release if it occurred prior to
enactment of the bill, and if it resulted from the application
of a pesticide in compliance with a Federal or State law or
regulation that required the treatment of livestock. The
Department of Agriculture's Animal and Plant Health Inspection
Service and its State counterparts have the authority to order
treatment of livestock to prevent the spread of disease. The
amendment clarifies that if a hazardous substance (the
pesticide) was released into the environment in conjunction
with this obligatory treatment, a person is not liable under
CERCLA section 107.
The purpose of the section is to alleviate the concerns of
landowners and real estate financing institutions about the
potential liability relating to old pesticide/insecticide
application sites. For example, as a result of a Federal
quarantine imposed by the U.S. Department of Agriculture in
1906, dipping vats were used in Florida and 14 other States to
eradicate ticks from cattle in order to prevent the spread of
disease. Participation in this eradication program by livestock
producers was mandatory. Dipping vats were located throughout
the State of Florida on private lands. Dipping vats have not
been used since 1961. Nonetheless, the specific sites on which
these vats are located are still a cause of concern for lenders
and landowners in the context of land sales, due to the
uncertainty regarding environmental liability for these vat
sites.
None of these sites are currently on the NPL; nor is the
Committee aware of any human health problems relating to these
sites. Nonetheless, uncertainty regarding potential liability
stemming from these vat sites is unnecessarily causing land
transaction problems in Florida and other States, including
some degree of land devaluation. Thus, the owners of these
lands where dipping vats were located are, in effect, now being
penalized for their prior cooperation with the Federal and
State governments in helping to eradicate disease. This
provision is intended to eliminate the unfairness and
uncertainty associated with these legally required activities.
Sec. 807. Technical Corrections
Summary
This section makes technical corrections to CERCLA section
107(a) to make it consistent with common practice, and more
accessible to the reader by inserting headings, and
redesignating paragraph numbers and subparagraph letters. It
also makes conforming amendments in sections 107(d)(3) and
107(f)(1) where there are references to section 107(a).
Discussion
CERCLA contains numerous drafting errors and frequently
fails to follow the standard legislative drafting format.
Section 807 is a series of technical corrections intended to
make the statute conform with the standard legislative style.
TITLE IX--FUNDING
Sec. 901. Authorization of Appropriations from the Fund
Summary
This section authorizes a total of $7.5 billion for the 5-
year period from fiscal year 1999 through fiscal year 2003 for
the purposes specified in section 111.
Discussion
The funds authorized by Section 111, are to be appropriated
from the Hazardous Substance Superfund established under
subchapter A of chapter 98 of the Internal Revenue Code of
1986.
Sec. 902. Orphan Share Funding
Summary
The section authorizes appropriations for the payment of
orphan shares under new section 136, which shall be mandatory
direct spending. For fiscal year 1999, $200 million is
authorized; for fiscal year 2000, $350 million is authorized;
for fiscal year 2001, $300 million is authorized; for fiscal
year 2002, $300 million is authorized; for fiscal year 2003,
$300 million is authorized; and for fiscal year 2004, and each
fiscal year thereafter, $250 million is authorized.
Discussion
The section adds orphan share funding to the list of
purposes in CERCLA section 111(a) for which the Hazardous
Substance Superfund may be used.
Sec. 903. Department of Health and Human Services
Summary
The section authorizes $50 million annually for each of
fiscal years 1999 through 2003 for the activities of the ATSDR.
Any funds not obligated by the end of each fiscal year are to
be returned to the Hazardous Substance Superfund.
Discussion
The activities of the ATSDR for which funds are authorized
are described in section 104(i).
Sec. 904. Limitations on Research, Development and Demonstration
Programs
The section authorizes $30 million from the Hazardous
Substance Superfund in each of fiscal years 1999 through 2003
for carrying out the applied research, development, and
demonstration program for alternative or innovative
technologies, and the training program, under CERCLA section
311(b) other than basic research. The funds are to be available
until expended.
The section also authorizes funds from the Hazardous
Substance Superfund for research, demonstration, and training
under CERCLA section 311(a). For fiscal year 1999, $37 million
is authorized; for fiscal year 2000, $39 million is authorized;
for fiscal year 2001, $41 million is authorized; and for each
of fiscal years 2002 and 2003, $43 million is authorized. No
more than 15 percent of these amounts may be used for training
under section 311(a) in any fiscal year.
In addition, the section authorizes from the Hazardous
Substance Superfund $5 million per year for each of fiscal
years 1999 through 2003 for the University Hazardous Substance
Research Centers described in CERCLA section 311(d).
Sec. 905. Authorization of Appropriations from General Revenue
Summary
The section authorizes $250 million per year to be
appropriated from the Treasury to the Hazardous Substance
Superfund for each of fiscal years 1999 through 2003. It also
authorizes to be appropriated for each fiscal year an amount
equal to the environmental taxes received in the Treasury.
Discussion
There are four environmental taxes designated for the
Hazardous Substance Superfund: the corporate environmental
income tax (Internal Revenue Code (IRC) section 59A), and
excise taxes on petroleum (IRC section 4611), 42 listed
feedstock chemicals (IRC section 4661), and imported chemical
derivatives (IRC section 4671). Reauthorization of these taxes
is not under the jurisdiction of the Environment and Public
Works Committee, but instead, is under the jurisdiction of the
Finance Committee. The ultimate decision over which, if any, of
these taxes will be reauthorized is left to the determination
of the Finance Committee.
Sec. 906. Additional Limitations
This section adds two limitations to the uses of the
Hazardous Substance Superfund. First, it limits the total
amount that can be granted to the Community Action Groups
established under Title II of the bill to $15 million for the
period from January 1, 1997, to September 30, 2003. Second, it
provides that beginning on January 1, 1997, response costs that
are recovered by the United States are to be credited as
offsetting collections to the Superfund appropriations account.
Sec. 907. Reimbursement of Potentially Responsible Parties
Summary
The section authorizes the Administrator of EPA to
reimburse a party who has paid EPA for response costs that are
later disallowed or adjusted.
Discussion
This provision is intended to protect a party who has
settled with EPA and paid more than his fair share of cleanup
costs. If a Federal audit of response costs finds that the
costs are not allowable due to contractor fraud, are not
allowable under the Federal Acquisition Regulation, or should
be adjusted due to routine contract and EPA response cost audit
procedures, then the party may be reimbursed.
Hearings
In the 104th Congress, the Subcommittee on Superfund, Waste
Control, and Risk Assessment held seven hearings. On March 10,
1995, the subject was general oversight and EPA's
administration of Superfund. Testimony was given by the
following witnesses: The Honorable Carol Browner,
Administrator, U.S. Environmental Protection Agency; Edwin H.
Clark II, president, Clean Sites; Don R. Clay, president, Don
Clay Associates, Inc.; Lloyd Dixon, RAND Corporation; J.
Winston Porter, president, Waste Policy Center; Katherine
Probst, senior fellow, Resources for the Future; John Shanahan,
policy analyst, Environmental Affairs and Energy Studies, The
Heritage Foundation; and Michael Steinberg, Esq., Morgan,
Lewis, and Bockius, on behalf of the Hazardous Waste Cleanup
Project.
On March 29, 1995, the subject was remedy selection and
cleanup standards. Testimony was given by the following
witnesses: Rose Augustine, Tucson, AZ; Richard Bunn, president
and chief executive officer, UGI Corporation, Reading, PA;
Ronald Cattany, Deputy Director, State of Colorado, Department
of Natural Resources; Timothy C. Duffy, executive director,
Rhode Island Association of School Committees; James A.
Goodrich, executive director, San Gabriel Basin Water Quality
Authority; Barry, Johnson, Assistant Administrator, Agency for
Toxic Substances and Disease Registry; Patrick Murphy,
community liaison, Concerned Citizens of Triumph, Sun Valley,
ID; John F. Spisak, president and chief executive officer,
Industrial Compliance, Inc.; and Martin Yee, White Spur Dry
Cleaners, El Paso, TX.
On April 5, 1995, the subject of the hearing was risk
assessment. Testimony was given by the following witnesses:
Richard Brown, vice president for remediation technology,
Groundwater Technology, Inc.; Robert W. Frantz, manager,
Environmental Remediation Program, General Electric Company;
Linda Greer, senior scientist, Public Health Program
Coordinator, Natural Resources Defense Council; The Honorable
Elliott Laws, Assistant Administrator, Office of Solid Waste
and Emergency Response, U.S. Environmental Protection Agency;
Steven J. Milloy, president, Regulatory Impact Analysis
Project; Paul Miskimin, senior vice president for Federal
programs, Jacobs Engineering Group, Inc.; Philip J. O'Brian,
Director, Division of Waste Management, State of New Hampshire,
Department of Environmental Services; Michael Parr, remediation
program manager, DuPont Company; Milton Russell, director,
Joint Institute for Energy and Environment, and professor of
economics, University of Tennessee; Curtis C. Travis, M.D.,
director, Health Sciences Research Division, Oak Ridge National
Laboratory; and Marcia Williams, president, Williams and
Vanino.
On April 27, 1995, the subject of the hearing was superfund
liability issues. Testimony was given by the following
witnesses: Jan Paul Acton, assistant director, Congressional
Business Office; Robert Burt, chairman and chief executive
officer, FMC Corporation, on behalf of the Business Roundtable;
Boyd Condie, Council member, City of Alhambra, CA, on behalf of
American Communities for Cleanup Equity; Kelvin Herstad,
president, United Truck Body, Inc., on behalf of the National
Federation of Independent Businesses; Anne Pendergrass Hill,
senior counsel, First Interstate Bank of Portland, Oregon,
Legal Services Group, on behalf of the American Bankers'
Association; Richard F. Leavitt, president, Chelsea Clock,
Inc.; R. Brian McLaughlin, Deputy Attorney General, State of
New Jersey, on behalf of the National Association of Attorneys
General; Mary P. Morningstar, assistant general counsel for
environmental affairs, Lockheed Martin Corporation, on behalf
of the Electronics Industry Association; Joe J. Palacioz, City
Manager, Hutchinson, KS; Peter B. Prestley, attorney, Simpson,
Thatcher and Bartlett, on behalf of the American Bar
Association; Barbara Price, vice president for health,
environment and safety, Phillips Petroleum, on behalf of the
American Petroleum Institute; The Honorable Lois Schiffer,
Assistant Attorney General, Environment and Natural Resources
Division, U.S. Department of Justice; and Richard D. Smith,
president, Chubb Corporation.
On May 4, 1995, the subject was the role of State and local
governments. Testimony was given by the following witnesses:
James C, Colman, Assistant Commissioner, Massachusetts Bureau
of Waste Site Cleanup, on behalf of the Association of State
and Territorial Solid Waste Management Officials; Velma Dunn,
Phoenix, AZ; Karen Florini, senior attorney, Environmental
Defense Fund; Russell Harding, Deputy Director for
Environmental Protection, Michigan Department of Natural
Resources; Jonathan B. Howes, Secretary, North Carolina
Department of Environment, Health, and Natural Resources; Kent
Jeffreys, senior fellow, National Center for Policy Analysis;
David R. Tripp, special legal counsel, City of Witchita, KS;
and Robert W. Varney, Commissioner, New Hampshire Department of
Environmental Services.
On May 9, 1995, the subject was Federal and State roles in
Superfund cleanup. Testimony was given by the following
witnesses: The Honorable Sherri W. Goodman, Deputy Under
Secretary of Defense for Environmental Security, U.S.
Department of Defense; The Honorable Thomas Grumbly, Assistant
Secretary for Environmental Management, U.S. Department of
Energy; Christopher Jones, Chief, Environmental Enforcement
Section, Office of the Attorney General, State of Ohio; Mary P.
Morningstar, corporate counsel, Lockheed Martin Corporation;
Frank Parker, distinguished professor of environmental
engineering, Vanderbilt University; Andrew Paterson, managing
director, RIMTech; Lenny Siegel, director, Pacific Studies
Center; and Barry Steinberg, attorney, National Association of
Installation Developers.
On May 11, 1995, the subject was natural resource damages.
Testimony was given by the following witnesses: Charles de
Saillan, Assistant Attorney General for Natural Resources,
State of New Mexico, on behalf of the National Association of
Attorneys General; Keith O. Fultz, Assistant Comptroller
General, U.S. General Accounting Office; The Honorable Douglas
Hall, Assistant Secretary, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce; Jerry Hausman,
McDonald Professor of Economics, Massachusetts Institute of
Technology; Kenneth D. Jenkins, director, Molecular Ecology
Institute, California University at Long Beach; Kevin L.
McKnight, manager, Environmental Remediation Projects, Aluminum
Company of America; Keith Meiser, senior counsel, CSX
Transportation, Inc.; and Chris Tweeten, Chief Deputy Attorney
General, State of Montana.
Also in the 104th Congress, the Committee on Environment
and Public Works held 2 days of hearings related to the
modification of S. 1285 by Senate Amendment No. 3563. On April
23, 1996, testimony was given by the following witnesses: The
Honorable Carol M. Browner, Administrator, U.S. Environmental
Protection Agency; Karen Florini, senior attorney,
Environmental Defense Fund; The Honorable Sherri W. Goodman,
Deputy Under Secretary of Defense for Environmental Security,
U.S. Department of Defense; The Honorable Thomas P. Grumbly,
Assistant Secretary for Environmental Management, U.S.
Department of Energy; The Honorable Douglas K. Hall, Assistant
Secretary for Oceans and Atmosphere, U.S. Department of
Commerce; Barbara Price, vice president for health safety, and
the environment, American Petroleum Institute; The Honorable
Lois J. Schiffer, Assistant Attorney General, Environment and
Natural Resources Division, U.S. Department of Justice; John F.
Spisak, president and chief executive officer, Terranext, Inc.;
and J. Lawrence Wilson, chairman and chief executive officer,
Rohm and Haas Company, on behalf of the Chemical Manufacturers
Association.
On April 24, 1996, testimony was given by the following
witnesses: Andrew H. Card, president and chief executive
officer, American Automobile Manufacturers Association; Sarah
Chasis, senior attorney, Natural Resources Defense Council,
Inc., New York, NY; James D. Coleman, Assistant Commissioner
for Waste Site Cleanup, Massachusetts Department of
Environmental Protection, on behalf of the Association of State
and Territorial Solid Waste Management Officials; Michael
Farrow, director, Department of Natural Resources, Confederated
Tribes of the Umatilla Indian Reservation; Christine O.
Gregoire, Attorney General, State of Washington, on behalf of
the National Association of Attorneys General; The Honorable
Rick Santorum, Senator from the Commonwealth of Pennsylvania;
Velma Smith, executive director, Friends of the Earth; Richard
B. Stewart, professor, New York University Law School, on
behalf of the Natural Resource Damages Coalition; Robert
Stickles, Administrator, Sussex County, Delaware, on behalf of
the National Association of Counties, National League of
Cities, American Communities for Cleanup Equity, National
Association of Towns and Townships, International City/County
Management Association, National School Boards Association, and
the United States Conference of Mayors; Marion Trieste,
president, Saratoga Springs Hazardous Waste Coalition; Michael
Szomjassy, senior vice president, OHM Remediation Services
Corporation; Robert E. Vagley, American Insurance Association;
Robert Varney, Commissioner, New Hampshire Department of
Environmental Services, on behalf of the National Governors'
Association; and Barbara Williams, owner, Sunnyray Restaurant,
Gettysburg, PA, on behalf of the National Federation of
Independent Business.
At the beginning of the 105th Congress, during March 1997,
the Subcommittee on Superfund, Waste Control, and Risk
Assessment held two Superfund-related hearings. On March 4,
1997, the Subcommittee heard testimony on brownfields from the
following witnesses: Christian J. Bollwage, Mayor, Elizabeth
NJ, on behalf of the United States Conference of Mayors;
Timothy Fields, Acting Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency; Peter F. Guerrero, Director for Environmental
Protection Issues, Resources, Community and Economic
Development Division, U.S. General Accounting Office; Lorrie
Louder, director of industrial development, St. Paul Port
Authority, on behalf of the National Association of Local
Government Environmental Professionals; William J. Riley,
general manager for environmental affairs, Bethlehem Steel
Corporation, on behalf of the American Iron and Steel
Institute; Peter J. Scherer, senior vice president and counsel,
Taubman Company, on behalf of the National Realty Committee;
James M. Seif, Secretary of Environmental Protection,
Pennsylvania Department of Environmental Protection; and
William K. Wray, senior vice president, Citizens Bank,
Providence, RI.
On March 5, 1997, the Subcommittee on Superfund, Waste
Control, and Risk Assessment received testimony from the
following witnesses: Linda Biagioni, vice president of
environmental affairs, Black and Decker Corporation, on behalf
of the Superfund Action Alliance; The Honorable Carol M.
Browner, Administrator, U.S. Environmental Protection Agency;
Charles de Saillan, Assistant Attorney General, Natural
Resources, Environmental Enforcement Division, State of New
Mexico; Karen Florini, senior attorney, Environmental Defense
Fund; Terry Garcia, Acting Assistant Secretary, National
Oceanic and Atmospheric Administration, U.S. Department of
Commerce; Richard Gimello, Assistant Commissioner for Site
Remediation, New Jersey Department of Environmental Protection,
on behalf of the National Governors' Association; Rich A. Heig,
senior vice president, Engineering and Environment, Kennecott
Energy Company; Larry L. Lockner, manager for regulatory
issues, Shell Oil Company, on behalf of the American Petroleum
Institute; Karen O'Regan, Environmental Programs Manager, City
of Phoenix, on behalf of American Communities for Cleanup
Equity, International City County Management Association,
National League of Cities, National Association of Counties,
U.S. Conference of Mayors, and National School Board
Association; Robert Spiegel, director, Edison Wetlands
Association, and Barbara Williams, owner, Sunnyray Restaurant,
Gettysburg, PA, on behalf of the National Federation of
Independent Business.
On September 4, 1997, the Committee held a hearing on a
revised draft of S. 8. Testimony was given by the following
witnesses: The Honorable Carol M. Browner, Administrator, U.S.
Environmental Protection Agency; Robert N. Burt, chairman and
chief executive officer, FMC Corporation on behalf of the
Business Roundtable; Susan Eckerly, director for Federal
Government relations, National Federation of Independent
Business; Karen Florini, Senior Attorney, Environmental Defense
Fund; Gordon J. Johnson, Deputy Bureau Chief, Environmental
Protection Bureau, New York State Attorney General's Office, on
behalf of the National Association of Attorneys General; George
Mannina, executive director, Coalition for NRD Reform; E.
Benjamin Nelson, Governor, State of Nebraska, on behalf of the
National Governors' Association; James P. Perron, Mayor,
Elkhart, IN, on behalf of the U.S. Conference of Mayors; and
Wilma Subra, president, Subra Company, New Iberia, LA.
Rollcall Votes
Section 7(b) of rule XXVI of the Standing Rules of the
Senate and the rules of the Committee on Environment and Public
Works require that any rollcall votes taken during the
Committee's consideration of a bill be noted in the report.
The Committee met to consider S. 8 on March 24, 25, and 26,
1998, and held the following rollcall votes:
On March 25, 1998, an amendment by Senator Lautenberg
(which had been offered in the markup session of March 24), to
delete the provision establishing the voluntary cleanup
program, was defeated by 7 yeas and 11 nays. Voting in favor
were Senators Baucus, Boxer, Lautenberg, Lieberman, Moynihan,
Reid, and Wyden; and voting against were Senators Allard, Bond,
Chafee, Graham, Hutchinson, Inhofe, Kempthorne, Sessions, Smith
of New Hampshire, Thomas, and Warner.
On March 25, 1998, an amendment offered by Senator Baucus,
to ensure that Federal authorities are not limited if a State
voluntary response program fails to contain basic elements, was
defeated by 7 yeas and 11 nays. Voting in favor were Senators
Baucus, Boxer, Lautenberg, Lieberman, Moynihan, Reid, and
Wyden; and voting against were Senators Allard, Bond, Chafee,
Graham, Hutchinson, Inhofe, Kempthorne, Sessions, Smith of New
Hampshire, Thomas, and Warner.
On March 25, 1998, an amendment offered by Senator
Kempthorne on Natural Resource Damages was approved by 11 yeas,
4 nays, and 3 not voting. Voting in favor were Senators Allard,
Bond, Chafee, Graham, Hutchinson, Inhofe, Kempthorne, Sessions,
Smith of New Hampshire, Thomas, and Warner; voting against were
Senators Baucus, Boxer, Lautenberg, and Moynihan; not voting
were Senators Lieberman, Reid, and Wyden.
On March 26, 1998, an amendment offered by Senator Chafee,
in the form of a manager's amendment, was approved by 11 yeas,
6 nays, and 1 not voting. Voting in favor were Senators Allard,
Bond, Chafee, Graham, Hutchinson, Inhofe, Kempthorne, Sessions,
Smith of New Hampshire, Thomas, and Warner; voting against were
Senators Baucus, Boxer, Lautenberg, Moynihan, Reid, and Wyden;
and not voting was Senator Lieberman.
On March 26, 1998, an amendment offered by Senator Boxer on
uncontaminated ground water was defeated by 7 yeas and 11 nays.
Voting in favor were Senators Baucus, Boxer, Lautenberg,
Lieberman, Moynihan, Reid, and Wyden; and voting against were
Senators Allard, Bond, Chafee, Graham, Hutchinson, Inhofe,
Kempthorne, Sessions, Smith of New Hampshire, Thomas, and
Warner.
On March 26, 1998, an amendment offered by Senator
Lautenberg on the community role in decisionmaking was defeated
by 8 yeas and 10 nays. Voting in favor were Senators Baucus,
Boxer, Graham, Lautenberg, Lieberman, Moynihan, Reid, and
Wyden; and voting against were Senators Allard, Bond, Chafee,
Hutchinson, Inhofe, Kempthorne, Sessions, Smith of New
Hampshire, Thomas, and Warner.
On March 26, 1998, an amendment offered by Senator Baucus
on preference for treatment was defeated by 7 yeas and 11 nays.
Voting in favor were Senators Baucus, Boxer, Lautenberg,
Lieberman, Moynihan, Reid, and Wyden; and voting against were
Senators Allard, Bond, Chafee, Graham, Hutchinson, Inhofe,
Kempthorne, Sessions, Smith of New Hampshire, Thomas, and
Warner.
On March 26, 1998, the S. 8 was ordered reported, as
amended by the Committee, by 11 yeas and 7 nays. Voting in
favor were Senators Allard, Bond, Chafee, Graham, Hutchinson,
Inhofe, Kempthorne, Sessions, Smith of New Hampshire, Thomas,
and Warner; and voting against were Senators Baucus, Boxer,
Lautenberg, Lieberman, Moynihan, Reid, and Wyden.
Regulatory Impact
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact of the bill. In general,
the bill is expected to reduce the regulatory burdens and costs
of potentially responsible parties at facilities listed on the
NPL. The bill will also reduce regulatory burdens and costs at
the numerous sites with potential or real hazardous substance
contamination that are not listed on the NPL, but are cleaned
up under other Federal or State authority. EPA has identified
over 41,000 such sites since Superfund's inception, and
estimates of the total number of such sites nationwide are as
high as 400,000. The bill will not affect the personal privacy
of individuals.
Superfund is not a traditional regulatory program such as
the Clean Air Act or the Federal Water Pollution Control Act.
Those statutes establish national regulatory regimes that
govern all entities engaged in specified activities. Superfund
is essentially an enforcement program; its requirements apply
at sites that are of interest to the Federal Government.
Superfund cleanup regulations only apply to those sites that
are nominated and added to the NPL after a public notice and
comment period, or at sites that are the subject of some other
Federal enforcement action, response action, or natural
resource damage restoration. A Federal cause of action under
Superfund exists at any facility where a party incurs response
costs. However the liability allocation system, exemptions, and
limitations in the bill only apply at NPL facilities.
The potential universe of sites affected by the bill's
regulatory changes is therefore largely a function of the
Federal Government's enforcement discretion. The current
universe of NPL facilities is 1,197, with 54 listings proposed
but not final. EPA has used Superfund authority to conduct an
additional 5,000 removal action. Some of the removal actions
have occurred at facilities subsequently listed on the NPL, and
some facilities have been the subject of multiple removal
actions.
The bill requires the President to make significant
revisions to the existing Superfund program. This will include
revisions to the National Contingency Plan and regulations
regarding the assessment of damages to natural resources. New
regulations will be required to implement the brownfield and
State voluntary cleanup assistance programs in Title I,
delegation and authorization of State programs in Titles II and
VI, expansion of community participation in Title III,
allocation system in Title V.
The regulatory changes required by the bill are expected to
speed up the process of cleaning up Superfund sites and reduce
some of the burdens associated with the conduct of a cleanup
and the resolution of liability for cleanup. The changes in the
National Contingency Plan will result in less costly cleanups
due to the elimination of burdensome requirements in existing
law, coupled with additional flexibility for the remedial
decisionmaker to select cost-effective remedies that protect
human health and the environment.
Liability system changes include an allocation system that
will provide orphan share funding paid from a segregated direct
spending account, plus other policy-based exemptions or
limitations from liability. No individual party's liability
burden will increase under the bill, though the liability of
many parties will be reduced or eliminated. The bill
establishes several temporary moratoria on litigation to
recover response costs during the settlement or allocation
process. It is expected that the costs to the private sector
due to the litigation moratoria will be negligible, and that
the benefits of the exemptions, limitations and orphan share
funding will far outweigh any short-term costs incurred.
The bill will not result in any increased paperwork burden
for individuals. The current liability system requires
individuals to produce evidence to establish defenses to
liability, demonstrate eligibility for participation in de
minimis settlements, or provide information needed by the
Federal Government or a Court to develop or evaluate
settlements. The bill does not affect these requirements.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), the Committee makes the following evaluation
of the Federal mandates contained in the bill. Title V of the
bill limits or eliminates liability for certain parties under
Federal and State laws for future cleanup costs at Superfund
sites. Currently, States can sue PRPs at a Superfund site under
their own hazardous waste cleanup laws, and PRPs can pursue
other PRPs under State cost recovery laws. The bill preempts
the application of State law to future cleanup costs subject to
an allocation. However, the costs of meeting this requirement
are not significant.
The purpose for preempting State law for costs subject to a
liability allocation is to provide certainty to the parties who
participated in the allocation. These allocations will be more
successful if PRPs can be assured that the liability share they
received will not be disturbed by a party seeking a different
outcome under State law. Since States and PRPs rarely undertake
actions against PRPs at Superfund sites under State laws, the
impacts of this provision are not significant. Similarly, those
States whose cleanup laws establish joint and several liability
could in many cases recover their costs from other PRPs at the
site. Therefore, the costs of meeting this requirement are not
significant.
Section 506 of the bill contains a national uniform
negligence standard for the activities of a response action
contractor. This provision would constitute an
intergovernmental mandate under UMRA. Nonetheless, this
provision contains language that prevents the application of
the national uniform negligence standard in those cases where a
State has adopted, by statute, a law determining the liability
of a response action contractor (RAC). The practical effect of
this language is to clarify that State law would not be
preempted where a State has an existing or future statute
regarding RAC liability, but would result only in the
preemption of common law RAC negligence standards. Because a
State would be free to apply its own statues, the cost of
meeting this requirement is not significant.
While the bill does contain the aforementioned preemptive
elements, they are not significant, and do not exceed the
threshold established in UMRA ($50 million in 1996, indexed
annually for inflation). Finally, the bill does not have any
discernible effect on the competitive balance between the
public and private sectors.
Comment from the General Accounting Office
The Committee sought comment from the U.S. General
Accounting Office on the status of the Superfund Trust Fund.
The response follows:
B-279673
U.S. General Accounting Office,
Washington, DC, April 16, 1998.
Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate.
Hon. Robert C. Smith, Chairman,
Subcommittee on Superfund, Waste Control, and Risk Assessment,
Committee on Environment and Public Works,
United States Senate.
Subject: Superfund: Status of the Superfund Trust Fund
In 1980, the Congress passed the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA), which created the Superfund program to clean up
hazardous waste sites. Under the act, the Environmental
Protection Agency (EPA) has the authority to compel the parties
responsible for the contamination to perform the cleanup. EPA
may also pay for the cleanup and attempt to recover the cleanup
costs from responsible parties. CERCLA also established the
Hazardous Substance Superfund (commonly referred to as the
Superfund Trust Fund) to provide EPA the resources needed to
clean up hazardous waste sites. The Trust Fund has been
financed primarily by a tax on crude oil and certain chemicals
and by an environmental tax on corporations. However, these
taxes expired in December 1995. Other sources of revenue for
the Trust Fund include amounts recovered from the private
parties responsible for the hazardous waste sites, interest
earned on the unexpended balance in the fund, fines and
penalties and appropriations made available from general
revenues (i.e., from Treasury's General Fund).
Given the expiration of the crude oil, chemical, and
environmental taxes in December 1995, you asked us to report on
the status of the Trust Fund. Specifically, you asked us to
report on (l) the amount of Trust Fund resources available for
appropriation in future years if the taxes that expired in 1995
are not reinstated and (2) the existence of any impediments to
funding the Superfund program from general revenues.
In summary, we found the following:
LLAs of September 30, 1997, the unappropriated
balance in the Trust Fund was about $2.63 billion. For fiscal
year 1998, the Congress made $1.5 billion available for the
Superfund program--$1.25 billion from the unappropriated Trust
Fund balance and $250 million from general revenues--leaving a
balance of about $1.38 billion potentially available for future
appropriations. In addition, the Trust Fund is projected to
receive income (primarily from interest and recoveries) during
fiscal year 1998 of about $396 million. With this projection,
about $1.78 billion may be available in the Trust Fund for
future appropriations by the end of fiscal year 1998. The
availability of Trust Fund resources for appropriation beyond
fiscal year 1999 is less certain and depends on variables such
as the amount actually made available to EPA for fiscal year
1999, and the actual amount of interest and recoveries realized
in fiscal years 1998 and 1999.
LLOur discussions with executive and legislative
branch officials and our own research did not identify any
provision in law or the congressional budget agreement that
would preclude funding the Superfund program entirely from
general revenues.
BALANCES IN THE SUPERFUND TRUST FUND
EPA's audited financial statements for fiscal year 1997
show that, as of September 30, 1997, the Trust Fund had an
unappropriated balance of $2.63 billion. For fiscal year 1998,
the Congress made $1.5 billion available to the Superfund
program ($1.25 billion from the Trust Fund plus $250 million
from general revenues), leaving $1.38 billion potentially
available for future appropriations. Although the taxes that
were the major source of income for the Trust Fund expired in
December 1995, the fund continues to receive income, primarily
from interest on the unexpended balance and recoveries from
private parties who are responsible to reimburse EPA for
cleanup costs at hazardous waste sites. The amount potentially
available for appropriation from the Trust Fund for fiscal year
1999 includes the $1.38 billion mentioned above plus income
realized during fiscal year 1998.
The President's fiscal year 1999 budget estimates that the
Superfund Trust Fund will earn about $396 million during fiscal
year 1998--$217 million in interest and $175 in recoveries,
plus $4 million in fines and penalties. We obtained actual
income information from the Department of the Treasury, which
maintains the Trust Fund accounts and processes all of EPA's
receipts and disbursements. The income statement for the Trust
Fund shows that in the first 5 months of fiscal year 1998
(October 1997 through February 1998), the Trust Fund earned
about $226 million in interest, recoveries, and fines and
penalties (or 57 percent of the amount estimated for the entire
year). While there is uncertainty about the amount of income
that the Trust Fund will earn for the remainder of fiscal year
1998, particularly from recoveries, which flow into the fund on
an uneven basis, it appears that the total income may be
somewhat higher for fiscal year 1998 than projected in the
budget estimate.
In addition to the amount potentially available for
appropriations from the Trust Fund ($1.38 billion) and the
income being earned in fiscal year 1998, the President's budget
for fiscal year 1999 estimates additional support of $250
million from general revenues. Taken together, these revenue
sources total over $2 billion that may be available to fund the
Superfund program for fiscal year 1999. The President's fiscal
year 1999 budget anticipates that $2.093 billion will be
available for the program for fiscal year 1999.
The amount of the unappropriated balance in the Trust Fund
to fund the program beyond fiscal year 1999 is uncertain. The
balance depends on whether the additional $650 million provided
for in the fiscal year 1998 appropriations act is made
available to EPA in 1999, the actual level of appropriations
for fiscal year 1999, and the actual amount of income
(primarily, interest and recoveries) that will be realized in
fiscal years 1998 and 1999.
FUNDING THE SUPERFUND PROGRAM FROM GENERAL REVENUES
Our discussions with officials from the Congressional
Budget Office, EPA, and the Office of Management and Budget did
not identify any provisions of law or the congressional budget
resolution that would preclude funding the Superfund program
entirely from general revenues. Similarly, in July 1996, the
Congressional Budget Office reported to the Congress that if
the Trust Fund runs short of cash, the Congress could choose to
fund the program from the General Fund indefinitely.
Additionally, our review of pertinent legislation and the
concurrent resolution on the budget for fiscal year 1998 (which
established budget levels for fiscal years 1998 through 2002)
confirmed these views.
AGENCY COMMENTS
We provided EPA with a draft of this report for its review
and comment. We met with EPA officials, including the Branch
Chief of the Trust Funds and Administration Analysis Branch in
EPA's Office of the Comptroller, to obtain their comments.
These officials said that overall the report provides a fair
treatment of the facts. EPA also provided a few technical
clarifications, which have been incorporated in this report, as
appropriate.
SCOPE AND METHODOLOGY
To prepare this report, we held discussions with, and
obtained and analyzed information provided by, officials from
EPA, the Department of the Treasury, the Office of Management
and Budget, and the Congressional Budget Office.
To identify the amount of Superfund Trust Fund resources
available for future appropriations, we reviewed the audited
financial statements prepared by EPA's Office of Inspector
General for the end of fiscal year 1997. To update these
figures, we obtained the most current income statement for the
Trust Fund from the Department of the Treasury. To identify
projected recoveries, we spoke to EPA's Office of Enforcement
and Compliance Assurance. We also discussed other line items in
the Superfund Trust Fund budget with an official at the Office
of Management and Budget. We discussed our methodology with the
Congressional Budget Office's Division of Natural Resource and
Commerce, Division of Budget Analysis, and Division of Tax
Analysis.
To address the issue of funding the program entirely out of
general revenues, we spoke to the same officials at the
Congressional Budget Office, the Office of Management and
Budget, and EPA. We also reviewed pertinent Superfund
legislation and congressional budget resolutions. We conducted
our review in March and April 1998 in accordance with generally
accepted government auditing standards.
Major contributors to this report were Charles Barchok,
Karen Kemper, and Richard Johnson.
Lawrence J. Dyckman,
Associate Director, Environmental Protection Issues.
Cost of Legislation
Section 403 of the Congressional Budget and Impoundment
Control Act requires that a statement of the cost of the
reported bill, prepared by the Congressional Budget Office, be
included in the report. That statement follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 4, 1998.
Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 8, the Superfund
Cleanup Acceleration Act of 1998.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts for Federal
costs are Kim Cawley, who can be reached at 226-2860, and Perry
Beider, who can be reached a 226-2940. The contact for the
State and local impact is Pepper Santalucia, who can be reached
at 225-3220, and the contacts for the private-sector impact are
Patrice Gordon and Perry Beider, both of whom can be reached at
226-2940.
Sincerely,
June E. O'Neill,
Director.
------
Congressional Budget Office Cost Estimate
S. 8, Superfund Cleanup Acceleration Act of 1998, as
ordered reported by the Senate Committee on Environment and
Public Works on March 26, 1998.
Summary
S. 8 would amend and reauthorize spending for the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), commonly known as the Superfund
Act, which governs the cleanup of sites contaminated with
hazardous substances. Because the bill would affect direct
spending, pay-as-you-go procedures would apply.
The Superfund program is administered by the Environmental
Protection Agency (EPA), which evaluates the need for cleanup
at sites brought to its attention, identifies parties liable
for the costs of cleanup, and oversees cleanups conducted
either by its own contractors or by the liable parties. These
EPA activities are currently funded by appropriations from the
Hazardous Substance Superfund Trust Fund and from the general
fund of the Treasury.
The bill would authorize appropriations of about $8 billion
over the 1999-2003 period for the Superfund program. In
addition, S. 8 would provide direct spending authority of about
$1.3 billion over the same period for EPA to compensate certain
private parties for completing cleanup activities for which
they are not liable. Such cleanup costs would be defined as
``orphan share'' spending under S. 8. Finally, the bill would
result in a decrease in the amounts recovered by EPA from
private parties who are liable for cleanup expenses incurred by
that agency and would authorize EPA to spend the recovered sums
without further appropriation. (Under current law, such
recoveries are deposited in the Superfund Trust Fund, and any
spending authority is subject to appropriation action.) New
direct spending related to those recoveries would total about
$1.2 billion over the 1999-2003 period.
S. 8 would impose intergovernmental mandates as defined in
Unfunded Mandates Reform Act of 1995 (UMRA). However, CBO
estimates that the costs of complying with these mandates would
not be significant and would not exceed the threshold
established in the law ($50 million in 1996, indexed annually
for inflation).
S. 8 also would impose private-sector mandates as defined
in UMRA by setting a temporary moratorium on certain lawsuits.
CBO estimates that the direct costs of complying with these
mandates would be well below the statutory threshold specified
in UMRA ($100 million in 1996 dollars adjusted annually for
inflation). Overall, the bill would tend to lower the costs to
the private sector of complying with regulations under CERCLA.
Estimated Cost to the Federal Government
The estimated budgetary impact of S. 8 is shown in the
following table. The costs of this legislation fall within
budget function 300 (natural resources and environment).
By fiscal year, in millions of dollars
----------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001 2002 2003
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Superfund Spending Under Current Law......................
Budget Authority \1\.................................. 1,500 650 0 0 0 0
Estimated Outlays..................................... 1,428 1,237 774 355 143 38
Proposed Changes..........................................
Estimated Authorization Level......................... 0 1,609 1,609 1,609 1,609 1,609
Estimated Outlays..................................... 0 408 987 1,308 1,458 1,533
Superfund Spending Under S. 8.............................
Estimated Budget Authority/Authorization Level \1\.... 1,500 2,259 1,609 1,609 1,609 1,609
Estimated Outlays..................................... 1,428 1,645 1,761 1,663 1,601 1,571
CHANGES IN DIRECT SPENDING
Spending for Orphan Shares................................
Estimated Budget Authority............................ 0 91 350 300 300 300
Estimated Outlays..................................... 0 91 350 300 300 300
Changes to Superfund Recoveries...........................
Estimated Budget Authority............................ 0 350 300 300 300 250
Estimated Outlays..................................... 0 88 209 267 307 293
Total Changes in Direct Spending..........................
Estimated Budget Authority............................ 0 441 650 600 600 550
Estimated Outlays..................................... 0 179 559 567 607 593
----------------------------------------------------------------------------------------------------------------
\1\ The 1998 level is the amount appropriated for that year; the 1999 level reflects an advance appropriation
for 1999 made in 1998.
Basis of Estimate
For purposes of this estimate, CBO assumes that S. 8 will
be enacted by the end of this fiscal year, and that all funds
authorized by the bill will be appropriated in equal annual
amounts over the next 5 years. Estimated outlays are based on
the historical spending patterns of the Superfund program.
Spending Subject to Appropriation
Superfund Program. Title IX would authorize appropriations
totaling $7.5 billion over the 1999-2003 period for EPA
activities in support of the Superfund program. In addition,
this title would authorize appropriations of $15 million over
the 1999-2003 period for technical assistance grants to
community action groups affected by a Superfund site. Title I
would authorize the appropriation of $75 million annually over
the 5-year period for grants to be used for site
characterization, assessment, and cleanup actions at brownfield
facilities. (Brownfield facilities are properties where the
presence, or potential presence, of a hazardous substance
complicates the expansion or redevelopment of the property.)
These funds could also be used by States and local governments
to establish revolving loan funds to provide money for eligible
work at brownfield facilities. Title I also would authorize the
appropriation of $25 million annually over the 1999-2003 period
for grants to States to establish programs to facilitate the
voluntary cleanup of properties contaminated with hazardous
materials.
Coeur d'Alene Basin. Title VII would authorize the
appropriation of $5 million to Idaho to develop and implement a
plan to restore, manage, and enhance the natural recovery of
the Coeur d'Alene basin in Idaho. In addition, this title would
authorize the appropriation of such sums as are necessary to
the Federal trustees within the Coeur d'Alene basin to pay for
the Federal costs associated with implementing a plan to
restore the basin. We estimate that those costs would total
about $20 million over the next 5 years, but that over the long
term, total restoration costs could be much greater.
Federal land managers (the Federal trustees) in this region
include the Fish and Wildlife Service and the Forest Service.
The basin in northern Idaho is over 3,000 square miles in size.
Parts of this region have been contaminated with millions of
tons of mining tailings and contaminated sediments from metals
mining and ore processing activities in this area. The basin
area includes one current Superfund site.
S. 8 would require the Coeur d'Alene Basin Commission (an
existing group that includes representatives of industry and of
Federal, State, and local governments) to prepare a plan within
2 years to restore, manage, and enhance the natural recovery of
the basin. The amount and the timing of Federal funds that
would be needed to implement such a plan is uncertain because
it is unclear how much the plan would emphasize the enhancement
of the natural recovery of the basin instead of traditional
remedial actions to restore the basin. Also, until the plan is
completed, CBO does not know which parts of the basin would be
targeted for restoration. Preliminary estimates of the cost to
restore the area range from less than $100 million to $1
billion. Currently, the commission spends about $3 million
annually on planning and restoration activities. It is also
unclear how much of the cost the plan would assign to Federal
agencies with responsibilities within the basin.
CBO estimates that, over the next 5 years, the Federal
contribution to implementing the basin restoration plan would
be $5 million annually. In the decades ahead, however, Federal
costs could be much larger, depending on the size of the region
targeted and the approach to restoration that is adopted under
the plan. Any Federal funds provided for restoring the basin
would be subject to future appropriation acts.
Superfund Cleanup Costs At Federal Sites. S. 8 would amend
the procedures EPA uses to select appropriate cleanup solutions
(known as remedies) at each Superfund site. Title IV would
require EPA to consider future land use at a site when
selecting an appropriate remedy, and would add reasonable cost
as a factor to consider in remedy selection. The bill would
also allow EPA to delegate oversight of the Superfund program
for Federal facilities to individual States that choose to
undertake this work. These changes in the remedy selection
procedures and oversight could change the cost of future
cleanup projects at Federal facilities. However, any savings or
increases in costs would be small in the next 5 years because
the changes would not dramatically affect spending at sites
where remediation has begun.
Direct Spending
Reimbursement for Orphan Share Spending. Title V would
establish an entitlement to reimbursement from the Federal
Government for certain Superfund cleanup expenditures made by
private parties who are not liable for such costs. Title 9
would limit the amount of such reimbursements to $200 million
in 1999, $350 million in 2000, $300 million a year from 2001
through 2003, and $250 million a year in 2004 and thereafter.
Based on information from EPA, CBO estimates Government
reimbursements would be about $ 1.3 billion over the 1999-2003
period. Specifically, we expect that the new orphan share
spending would be at the annual caps for 2000 through 2003, but
significantly below the cap in the initial year of 1999.
Title V would make several important changes to current law
concerning Superfund liabilities of private parties and the
procedures for allocating cleanup responsibilities equitably
among the multiple ``potentially responsible parties,'' or PRPs
(site owners and operators, and offsite parties that
contributed hazardous substances), involved in a cleanup
project. Section 504 defines how an independent ``allocator,''
chosen by EPA and the PRPs at a site, would determine the share
of the cleanup costs that each PRP must contribute.
The allocator would also be charged with determining the
size of any ``orphan shares'' at a given site. Under S. 8,
orphan shares consist primarily of two components, any
liability assigned to defunct or insolvent private parties, and
any liability that is eliminated or reduced by the provisions
of the bill. In addition, S. 8 would eliminate, limit, or
reduce the cleanup liability for some PRPs--notably small
businesses, municipal governments that owned or operated
landfills, and generators and transporters of municipal solid
waste or recyclable materials. The difference between the
cleanup cost attributed to a party by the allocator and a
smaller amount actually paid by the party, because of a
liability exemption, reduction, or limitation resulting from
enactment of S. 8, would also become part of the orphan share.
Based on the characteristics of sites currently in the
Superfund program, CBO estimates that approximately one-third
of cleanup costs would be assigned to the orphan share.
The orphan share of Superfund cleanup expenses would be
paid initially by one or more PRPs, who would later be
reimbursed by the Federal Government. Based on information from
EPA, CBO estimates that reimbursements for orphan shares would
begin in late 1999, and would increase as cleanup progresses at
sites currently undergoing remediation and as additional
cleanup allocations are made and settlements reached under the
new law. CBO estimates that direct spending resulting from this
provision would be about $90 million in 1999 and at the caps
cited above in subsequent years because, beginning in 2000, the
demand for reimbursements would probably exceed the spending
caps imposed by the bill. Spending would continue for many
years into the future, though outlays in any 1 year could not
exceed the annual limits set in Title IX. PRPs entitled to
reimbursement of orphan share costs that would cause the
Government to spend more than the annual limits in Title IX
would be entitled to reimbursement (with interest) in the
following year.
Superfund Recoveries. EPA's enforcement program attempts to
recover costs the agency incurs at cleanup projects that are
the responsibility of private parties. Under current law,
spending of the amounts recovered is subject to annual
appropriation action, but Title IX would allow EPA to retain
and spend any sums it recovers from PRPs at Superfund sites.
Under current law, CBO estimates such recoveries would average
about $300 million annually over the next 5 years. Under S. 8,
however, such recoveries would decline because of the orphan
share provisions and the changes made to the Superfund
liability of private parties. As a result, we expect that
enacting the bill would lead to a decrease in offsetting
receipts to the Treasury of about $170 million over the 1999-
2003 period. In addition, we estimate the new authority to
spend sums recovered from PRPs would result in new direct
spending of about $ 1 billion over the next 5 years. In total,
these provisions would cost about $1.2 billion over the 1999-
2003 period.
PAY-AS-YOU-GO CONSIDERATIONS
Section 252 of the Balanced Budget and Emergency Deficit
Control Act of 1985 sets up pay-as-you-go procedures for
legislation affecting direct spending or receipts. The net
changes in outlays that are subject to pay-as-you-go procedures
are shown in the following table. For the purposes of enforcing
pay-as-you-go procedures, only the effects in the current year,
the budget year, and the succeeding 4 years are counted.
By fiscal year, in millions of dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays.............................................. 0 179 559 567 607 593 529 508 497 468 455
Changes in receipts............................................. N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
By preempting State laws and setting out new requirements
for the State of Idaho, S. 8 would impose intergovernmental
mandates as defined in UMRA. However, CBO estimates that the
costs of complying with these mandates would not be significant
and would not exceed the threshold established in the law ($50
million in 1996, indexed annually for inflation). The bill
would also benefit State, local, and tribal governments by
reducing their share of cleanup costs.
Intergovernmental Mandates
Preemption of State Liability Laws. Title V of the bill
would limit or eliminate the liability of certain parties under
Federal and State laws for future cleanup costs at Superfund
sites. Parties receiving some liability relief would include
generators and transporters of municipal solid waste and
municipal owners or operators of certain landfills. Currently,
States can sue PRPs at a Superfund site under their own
hazardous waste cleanup laws. These preemptions of State laws
would constitute intergovernmental mandates as defined in UMRA.
However, according to EPA and State officials, States rarely
take actions against PRPs at a Superfund site under their own
laws. In addition, those States whose cleanup laws establish
joint and several liability could in many cases recover their
costs from other PRPs at the site. Therefore, COO estimates
that the cost to States to comply with the mandates would not
be significant.
New Requirements for Idaho. Section 705 of the bill would
require the Coeur d'Alene Basin Commission, an advisory
committee of Idaho's environmental protection agency, to
develop and submit to the Governor a plan to clean up the Coeur
d'Alene river basin, which contains a Superfund site and has
other environmental problems. The committee would have 2 years
to submit the plan and the Governor would be required to
finalize and implement the plan by negotiating enforceable
agreements with responsible parties. The section would
authorize appropriations of $5 million for the State to pay for
the development and implementation of the plan. Under current
law, the State is paying 10 percent of the costs of cleaning up
a portion of the Superfund site in the river basin. It is
unclear how much of the costs of implementing the plan the
State would pay.
Other Impacts on State, Local, and Tribal Governments
Enactment of S. 8 would benefit State, local, and tribal
governments by creating new grant programs for States,
affording States greater participation in cleanups, and
relieving local governments from certain costs and liability
under current law.
New Grant Funding. Title I of the bill would create three
new grant programs to fund State voluntary response programs
and the assessment and cleanup of brownfield sites. States or
localities would have to match some of the funds and pay for
administering one of the programs. A total of $100 million for
each of fiscal years 1999 through 2003 would be authorized for
these programs.
Expanded State Role. S. 8 would amend the current Superfund
program to allow greater participation by the States. Under
current law, States can enter into cooperative agreements with
EPA to carry out most cleanup activities on a site-by-site
basis, but only EPA has the authority to select the method of
cleanup at each site. Under this bill, States could be granted
the authority to apply their own cleanup requirements at
Superfund sites within their borders or to perform certain
regulatory activities under Federal law at the sites. States
could also obtain the authority to oversee cleanups at
federally owned Superfund sites. EPA would be authorized to
provide grants to States or to enter into contracts or
cooperative agreements with them. States receiving the
authority to recover cleanup costs from responsible parties on
behalf of the Federal Government would be allowed to retain 25
percent of any Federal response costs recovered, as well as
amounts equal to the States' own response costs.
Lower State Cost-Share for Cleanups. S. 8 would lower the
share of cleanup costs that State governments pay. Under
current law, when the Federal Government conducts a site
cleanup, the State in which the site is located must pay 10
percent of the costs. If the site was owned or operated by the
State or a local government, the State's share of the costs
rises to at least 50 percent. States also must pay all
operation and maintenance costs at a site after the cleanup is
completed. S. 8 would amend the current arrangement to require
States to pay 10 percent of all costs, including those for
operation and maintenance. The bill would also lower States'
share of the costs at sites owned or operated by State or local
governments to 10 percent.
Liability Relief for Local Governments. Two titles of the
bill would limit or eliminate various parties' liability for
cleanup costs. Title V would cap the liability of parties
(including local governments) that generated or transported
municipal solid waste or sewage sludge to a landfill that also
accepted other wastes and that became a Superfund site. These
landfills are known as ``co-disposal'' landfills. If they are
not otherwise exempted from liability by the bill, these
parties would have a total aggregate liability of 10 percent of
cleanup costs.
Title V would also cap the liability of municipalities that
owned or operated co-disposal landfills on the NPL. Roughly 160
(65 percent) of the approximately 250 co-disposal landfills on
the NPL have at least one municipal owner or operator. With
some exceptions, large municipalities would be held liable for
no more than 20 percent of future cleanup costs, and small
municipalities would be responsible for no more than 10 percent
of the costs. Under current guidance, EPA can cap the liability
of municipalities at 20 percent of estimated cleanup costs,
although that percentage can be adjusted up or down for site-
specific factors. This title would also limit the liability of
various local entities for cleanup costs at certain Superfund
sites and would create an expedited settlement process for
certain parties, including municipalities with a limited
ability to pay.
Limits on Natural Resource Damages. S. 8 would amend
Federal law to limit the amount of money that the Federal
Government, States, and Tribes could seek for damages to
natural resources. Currently, governmental or tribal trustees
can sue under Federal law for injury to, destruction of, or
loss of natural resources. While this change could lower future
damage awards that States and Tribes receive, many States could
instead sue for damages under their own laws. As of 1995, 28
States had laws allowing such suits.
Lawsuit by the Coeur d'Alene Tribe. The bill could prevent
the Coeur d'Alene Indian Tribe of Idaho from pursuing their
pending lawsuit against several mining companies for damages to
natural resources. The Tribe is seeking over $1 billion in
damages. Section 705 would require the Governor of Idaho to
seek to negotiate enforceable agreements with responsible
parties in the Coeur d'Alene river basin regarding cleanup
costs. Any party that settles with the Governor within 2 years
would be protected from lawsuits under Federal environmental
laws. Since the Tribe is suing the companies under CERCLA, this
would preclude them from continuing their lawsuit. CBO cannot
predict how much the Tribe would receive either from the
pending lawsuit or from the agreements authorized by this bill.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
S. 8 would impose private-sector mandates by setting a
temporary moratorium on litigation to recover response costs
during the negotiation phase of an expedited settlement and
during the determination phase of the allocation process.
Section 503 would impose a temporary moratorium (for up to 1
year) on litigation against parties engaged in an expedited
settlement with the Federal Government. Under the bill, the
Government would seek an expedited settlement in certain cases
in which parties have a limited ability to pay or have made a
small contribution to the hazardous substances (or toxic
effect) at a site. Most of the parties that would be eligible
for an expedited settlement under S. 8 would likely be
protected from further liability under the expedited
settlements granted under current law. Therefore, the cost of
delaying potential litigation against such parties should be
small.
S. 8 would establish a new process for allocating liability
at sites on Superfund's National Priorities List that meet
certain criteria. The bill would impose a private-sector
mandate by setting a temporary moratorium on litigation aimed
at recovering response costs during the determination phase of
the allocation process. Specifically, section 504 would
prohibit anyone from asserting a claim until 4 months after the
release of a final allocation report. (At the same time, the
bill would allow potentially responsible parties to nominate
other parties for consideration in the allocation process.) An
allocation report would be released at the end of the
determination phase, and would contain a list of parties deemed
to be responsible for recovery costs at a Superfund site. CBO
expects that the costs of delaying a claim to recover cleanup
costs would be negligible, primarily because post-moratorium
litigation is likely to be rare in view of the incentives to
settle for the allocated share under the new process.
Under current law, the liability standard for a Superfund
site is retroactive, strict, and generally joint and several.
Liability is retroactive because it applies to contamination
caused by activities that took place before CERCLA was enacted
in 1980. Liability is strict because a responsible party is
liable even if it was not negligent. Liability is joint and
several in cases where the responsibility for contamination at
a site is not easily divisible. In such cases, the Government
can hold one or more parties liable for the full costs of
cleanup, even if other parties at the site are liable. Current
law also permits third-party lawsuits, in which parties held
responsible by EPA (or by other responsible parties) may sue
others who do not settle with the Government for contribution.
Generally, provisions of the bill are meant to speed up the
process of cleanup at Superfund sites and reduce some of the
burdens of compliance. S. 8 would direct the Government to
identify the costs attributed to responsible parties exempted
under the bill (orphan shares) and to cover the balance of
costs left over when allocation shares have been capped or
limited according to the rules specified in the bill. Projects
covered by the allocation process would include new cleanup
projects and ongoing projects that fit certain criteria in the
bill. Potentially responsible parties at cleanup projects at
certain other Superfund sites would be allowed to request the
new allocation process, but an orphan share allocation would
not apply in those cases. Because the Government would be
responsible for covering the costs of the orphan shares, the
portion of cleanup costs allocated to the private sector under
the new allocation process would be lower than under current
law.
Estimate Prepared by: Federal Costs: Kim Cawley (226-2860)
and Perry Beider (226-2940); Impact on State, Local, and Tribal
Governments: Pepper Santalucia (225-3220); Impact on the
Private Sector: Patrice Gordon and Perry Beider (226-2940).
Estimate Approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
ADDITIONAL VIEWS OF SENATOR KEMPTHORNE
One of the most difficult issues to resolve on Superfund
reauthorization has been the restoration of natural resources.
Natural resource damages are a battleground where the two sides
have lined up on opposite sides of the courtroom.
Unfortunately, with such a gulf separating the parties, both
the environment and common sense have wound up the loser.
The focus of the natural resource damages program now is on
collecting large sums of money a ``mad dash for cash'' and that
leads to endless litigation without benefit to the environment.
Instead, we need to focus on doing what needs to be done to
restore resources. That doesn't necessarily mean that you have
to remove every molecule of a contaminant, but you should have
to restore fully functioning ecosystems for the public.
The bill reflects our commitment both to restoring natural
resources that are injured or destroyed and our appreciation of
the value of our natural resources.
Intrinsic Values
I believe that a person who has injured or destroyed a
natural resource, whether it's a stream or a lake or a
population of endangered swans, should be responsible for fully
restoring the resource to the conditions that existed before
the damage occurred. I also believe that a person should have
to provide alternative, replacement resources to make up for
the lost services that would have been provided by the
resource. If you destroy a trout stream in a national park, you
should have to provide alternative fishing opportunities until
the original resource is restored. And where a natural resource
has unique intrinsic values, as a wilderness area or endangered
species does, trustees should be able to consider those values
to accelerate or enhance the restoration to bring back those
unique intrinsic values.
Certain places and certain things have unique intrinsic
values. Wilderness areas, national monuments, endangered and
threatened species should be considered to have unique
intrinsic value. A unique intrinsic value is that thing which
is so important and so separate from the general natural world
that it distinguishes itself from other places or things.
Section 107(f)(3)(B) provides that in selecting the
appropriate measure to restore, replace or acquire the
equivalent of a natural resource injured or destroyed, the
trustee may take into consideration the ``unique intrinsic
values'' as a factor in determining how restoration should take
place. This scaling factor can be used to select either a
faster timetable for restoration than might otherwise be called
for if those unique intrinsic values had not been injured or
destroyed or to enhance the restoration of the natural resource
to ``replace the intrinsic values lost.'' Replacing ``the
intrinsic values lost'' is a key factor that should not be
overlooked.
It is common practice now for a natural resource damage
claim to seek restoration above a fully restored and fully
functioning ecosystem. The monetary valuation of that excess
over restoration is often used for functions which do not
contribute or replace the uniqueness that has been lost. For
example, providing additional public access to the natural
resource is a typical use of these funds. Under the bill, if a
unique intrinsic value has been lost the trustee may seek to
use it as a scaling factor for a quicker restoration or to
enhance the restoration to replace the intrinsic values lost.
But, the enhancement of restoration of the lost intrinsic
values must take place on the property injured or destroyed and
must be such that it actually replaces the intrinsic values
lost. Adding public access to an isolated wilderness may not be
appropriate if the unique intrinsic value lost was not a public
access loss. The key point is that rather than use natural
resource damages as a ``cash cow'' for pet projects,
enhancement should be concentrated on the resource lost and not
for laundry list of projects which do nothing to restore that
which was lost.
The Bunker Hill Superfund Site
The Bunker Hill Superfund Site in Idaho remains locked in a
litigation morass. The parties have no incentive to come
together in a collaborative spirit. They seem unable to resolve
the problem because of the legal exposure inherent in
Superfund.
Because of the fear created by this litigation the parties
are polarized by the consequences of the litigation. They have
jointly sought participation in non-binding mediation but
continued suspicion over the acts of some Federal agencies may
have ``poisoned the well'' for cooperation.
I think we should take a new approach and try to resolve
this matter in the spirit of collaborative decision making for
the good of the people of Idaho. That's why I have introduced
this amendment to try to bring cooperation where there is
polarization--to try to bring results where there is little to
show for all of the efforts made to resolve this dispute.
There exists now in Idaho a unique opportunity for the
parties to come together in a real spirit of doing right by the
State, the people and the land. That is the purpose of this
amendment. Led by the Governor of the State of Idaho, a
commission comprising State and local officials, citizens and
industry, trustees, Federal agencies and the affected tribal
representatives already exists and can be delegated this task.
This broadly representative group will be charged with
coming up with a plan for restoring the Coeur D'Alene Basin and
determining the costs to be assessed against responsible
parties.
Once these agreements have been reached they will be
submitted to the appropriate Federal district court for its
approval to determine if the agreements are fair, reasonable
and in the public interest. No one's interests will be
foreclosed.
Our interest should be to resolve costly litigation that
wastes funds which could be used to heal the land. A State-led
consensus-based alternative to the waste that is Superfund
could only serve the purposes of the people and the land.
ADDITIONAL VIEWS OF SENATOR CHRISTOPHER S. BOND
In my opinion, what the public wants is a Federal
Government that is more effective and cost-conscious in
performing its responsibilities; therefore, government
agencies, Federal bureaucrats, and Congress must stop
protecting some of the most troubled and inefficient programs
in government from meaningful reform. The Superfund program is
one of those. Status quo is not acceptable.
There is no dispute that the law is broken. It was enacted
in a bipartisan effort to ensure that contaminated sites were
identified and cleaned up as soon as possible. Unfortunately,
it has been far more effective at disposing of public and
private dollars than it has in solving hazardous waste
problems. Even the General Accounting Office has identified the
Superfund program as one of the Federal Government's high risk
programs--meaning the levels of waste fraud, abuse and
mismanagement are intolerable.
As a member of the Environment and Public Works Committee
and as Chairman of the Environmental Protection Agency's
appropriations subcommittee I believe that it is imperative
that, as we both authorize and appropriate scarce Federal
resources--taxpayer dollars--for the Superfund program, we
reform the program to ensure that those taxpayer resources are
not wasted and that real risks to our citizens and the
environment are rapidly reduced. The leadership provided by
Senators Chafee and Smith that produced the legislation
reported from the Committee moves the Superfund program in the
right direction.
S. 8 will make the Superfund program more reasonable and
workable. S. 8 will not relieve polluters of their
responsibility, but it will take a fairer approach to assigning
responsibility for cleanup and restoration of damaged public
natural resources. In addition, the legislation bases cleanup
decisions on protecting health and the environment by reducing
real risks under actual conditions encountered at each site.
These reforms, along with the many others contained in the
legislation, will encourage responsible parties to step up to
the task at hand and discourage excessive litigation.
There is a section of the bill that I believe needs some
more attention--brownfields.
Brownfields are undevelopable tracts of land that could
contain real or just perceived environmental contamination. As
the U.S. Conference of Mayors pointed out in their reports,
brownfields exist in every region of our country. However, the
majority appear to be located in older industrial cities in the
Northeast and the Midwest.
Brownfields contribute to the urban sprawl that has
occurred across the country. Industry, private citizens, not-
for-profits, etc. shy away from these sites because of
potential liability under the Superfund program. We must work
to address the funding and liability issues associated with
brownfields to get the maximum return for the Federal
investment and to assist in the revitalization of these
properties.
I support the creation of a revolving loan fund for
brownfields. I believe that by capitalizing Federal funds we
can leverage State, local, and private sector funds which will
maximize the use of the resources provided and result in more
assessments and response actions at brownfield sites. I agree
that flexibility for grants needs to be included. Consistent
with the revolving loan funds for the Clean Water and Safe
Drinking Water programs, there will be special ``need'' cases
where loan fund dollars will not be appropriate. However, the
focus should stay on revolving loan funds.
I am concerned that the provisions included in the bill
for a Brownfield Revolving Loan Fund are too bureaucratic and
cumbersome. In addition, I believe that the 1 million
population minimum for a city or area to create their own
revolving loan fund with seed money from the Federal Government
may be too high.
As S. 8 moves forward I look forward to working out a more
suitable process for a Brownfield Revolving Loan Fund. It is
important that this issue is addressed so we can return old
industrial sites to productive use.
SUPPLEMENTAL VIEWS OF SENATORS ALLARD AND WYDEN
On September 26, 1997, we introduced S. 1224, legislation
to amend the Comprehensive Environmental Response,
Compensation, and Liability Act to ensure Federal agency
compliance with that law. On March 25 the Committee on
Environment and Public Works accepted S. 1224 in the form of an
amendment to the Superfund Cleanup Acceleration Act of 1998.
This language is supported by the Association of State and
Territorial Solid Waste Management Officials, the National
Governors Association, the National Association of Attorneys
General, and the State of Washington Department of Ecology.
The Federal Government has a long and undistinguished clean
up record at facilities that they have owned and/or operated.
This was recognized in Section 120 of the Superfund Amendments
and Reauthorization Act of 1986 (SARA) which stated, ``Each
department, agency, and instrumentality of the United States
(including the executive, legislative, and judicial branches of
government) shall be subject to, and comply with, this chapter
in the same manner and to the same extent, both procedurally
and substantively, as any nongovernmental entity . . . .'' The
author of this section, Senator Stafford of Vermont, stated on
the floor at the time of SARA's passage that, ``In 1980, the
Congress went to great pains to assure that the U.S. government
was treated, in all respects, like any other responsible party.
The law's definition of a person accords no special treatment
for the United States . . . [b]ut no loophole, it seems, is
too small to be found by the Federal Government.'' Senator
Stafford's remarks at the time were prescient: since then
Federal agencies have had some degree of success in fighting
attempts to ensure that there is adequate independent oversight
of Federal facilities. Furthermore, they have often not lived
up to the standards required of private parties and State and
local officials with respect to cleanup. The Allard/Wyden
amendment should finally eliminate procedural arguments and
ensure that Federal agencies concentrate on cleaning up the
environment and protecting human health at Federal sites on the
National Priority List instead of trying to avoid their
responsibilities. This amendment will also ensure that there is
an arms length regulator who can ensure the protection of human
health and the environment when Federal facilities are cleaned
up.
This amendment is not targeted at one Federal agency, many
have been guilty of implementing a lower standard of cleanup
than is required of private parties. Many cases are glaring,
like the treatment of the Colorado School of Mines. On January
25, 1992 a city water main burst near a facility called the
Colorado School of Mines Research Institute (CSMRI) spilling
water into and through a holding pond containing various
residues of material from research done at the site in previous
years into Clear Creek. Subsequent water testing showed no
degradation of the water, however, EPA issued a Unilateral
Administrative Order (UAO) for disposal of 22,000 cubic yards
of material.
The School of Mines and the State of Colorado accepted
responsibility for the cleanup. Unfortunately, that cannot be
said of Federal facilities who contributed to the stockpile
that was subject of the order. Those Federal agencies include
the Department of Defense, the Department of Energy, the Bureau
of Mines, and the Environmental Protection Agency. While they
participated in the research that caused the residue of
material subject to the removal order, they did not participate
in the removal efforts.
This is a glaring example of the Federal Government's
double standard. While the State-run School of Mines and
several private companies were forced to pay for cleanup,
Federal agencies which also did work at CSMRI escaped any
liability. This forced the state of Colorado to pick up the
Federal Government's share of the removal action, taking state
dollars away from other priorities.
The Allard/Wyden amendment would eliminate this double
standard by requiring Federal agencies to comply with all
Federal, State, and local laws, ``. . . in the same manner, and
to the same extent as any non-governmental entity.''
Our amendment would also address one of the most egregious
examples of how this double standard has been applied at the
Hanford cleanup site. One Federal court decision that applied
to Hanford, the Heart of America case, would allow Hanford to
pollute the air and water and also contaminate the soil for
decades. The Hanford site would also be immunized for any
violations that occur before the cleanup is completed sometime
in the next century.
This court ruling further allowed the interagency agreement
among the Department of Energy, the Environmental Protection
Agency, and the Washington Department of Ecology that governs
the Hanford cleanup to be used as shield to block an
enforcement action against the Department of Energy for
violations of the Clean Water Act. The Superfund law only
authorizes interagency agreements for Federal facilities; there
is no comparable immunity from enforcement for private sector
sites.
The Allard/Wyden amendment would put an end to the double
standard, two examples of which we have illustrated. The
amendment makes clear that Federal agencies and Federal
facilities are subject to the law now, not sometime off in the
future. It is our view that it is not possible for the Federal
Government to regulate itself. We believe the public health and
the environment are best served by having an independent
regulator ensuring that cleanup at Federal Superfund sites is
done to applicable local, State, and Federal levels. This
amendment will accomplish both goals.
MINORITY VIEWS OF SENATORS BAUCUS, LAUTENBERG, MOYNIHAN, LIEBERMAN,
BOXER, AND WYDEN
We support legislation to improve the Superfund program.
But we cannot support this bill.
In 1994, we voted for a reform bill that was supported by
everyone from the Chemical Manufacturers Association to the
National Federation of Independent Businesses to the Sierra
Club. Unfortunately, that bill was not enacted into law. Since
then, the Administration has undertaken a series of important
reforms. The Superfund program is now more effective than it
was 4 years ago. Even so, we continue to believe that Congress
should go further, to reform the Superfund law itself, to make
its implementation more efficient, effective, and fair.
More specifically, we support changes to the liability
provisions that would take small parties out of the liability
system and allow an allocation process, including the provision
of orphan share funding, for the parties that remain in the
system and agree to perform the site cleanup. We support a
series of changes to the remedy selection provisions to make
cleanups faster and less costly, without compromising
protection of public health and the environment. We support a
shift in the natural resource damages program to focus on
restoring resources rather than monetizing claims. We support
the appropriate codification of the Administration's reforms.
We support changes to increase community participation in the
remedy selection process. We support increased attention to
public health concerns, especially the health of children,
particularly if remedy reforms will result in fewer permanent
remedies and more hazardous wastes left in place. We support an
increased role for States, commensurate with their abilities.
And we support incentives for the redevelopment of
``brownfields,'' to help rebuild communities and create jobs.
Provisions in S. 8 address these issues, sometimes
successfully. For example, Senator Boxer's amendment providing
that remedies must ensure the protection of children and other
vulnerable subpopulations was approved by the Committee.
Unfortunately, in addition to constructive reforms, the bill
contains many provisions that would weaken current law, in ways
that threaten public health and the environment.
The new cleanup standards in the bill would reduce the
level of public health protection. For example, the bill would
so limit the current preference for cleanups that involve the
treatment of hazardous waste that this preference would seldom
if ever apply. As a result, many dangerous substances would be
left in place, untreated, creating dangers to public health and
the environment. Senators Baucus, Moynihan and Boxer offered an
amendment to replace this provision with one that took a more
moderate approach, but the amendment was defeated.
The cleanup provisions also would make it more likely that
clean groundwater will be contaminated. Senators Boxer,
Moynihan and Wyden offered an amendment providing that cleanups
must protect uncontaminated ground water and surface water
unless doing so is technically infeasible (or limited migration
of contamination is necessary to facilitate restoration of
ground water to beneficial use), but the amendment was
defeated.
We support giving States a greater role in the Superfund
program, especially at ``brownfields'' sites that do not
present high risks to public health and the environment. But
the bill would turn key elements of the Superfund program over
to States, without adequate safeguards. We believe that we
should take a balanced approach, along the lines that have
worked with other environmental laws, like the Clean Water Act
and the Safe Drinking Water Act. Senators Lautenberg, Moynihan
and Baucus offered amendments to provide balance by requiring
State voluntary cleanup programs to meet minimum criteria and
by restoring EPA's authority to take action when there is
imminent and substantial endangerment, but the amendments were
defeated.
The natural resource damages provisions would make it less
likely that damaged natural resources will be fully restored.
Most significantly, the bill would limit the ability of Federal
agencies, States, and Tribes to account for the intrinsic value
of rivers, lakes, forests, and other damaged natural resources.
Senators Baucus and Moynihan offered an amendment to allow the
full consideration of intrinsic values, but the amendment was
defeated.
The liability provisions would reopen settled cases. This
would divert resources away from sites that are not yet being
cleaned up, introduce a new set of complexities that create
litigation and other transaction costs, drain money from the
Superfund, create incentives for the harassment of small
parties by other PRPs, and potentially give a windfall to
certain companies. Senators Baucus and Lautenberg offered an
amendment to delete the provision reopening settled cases, but
the amendment was defeated.
The brownfields grants provisions would bring EPA's
successful brownfields grants program to a halt. They would
transform EPA's current practice--under which EPA awards grants
mostly to cities and towns--and require that EPA give grants to
States for redistribution to cities and towns. This would add a
layer of bureaucracy and complexity to the process, and would
slow things down. Senator Lautenberg filed an amendment that
would restore EPA's ability to deal directly with cities,
towns, or States, but did not offer the amendment, in response
to Senators Chafee and Smith's offer to try to resolve these
issues before the bill gets to the floor.
Given these and other provisions, we believe that the bill,
taken as a whole, would make the Superfund program worse, not
better. It would reduce the protection of human health and the
environment, impede the full restoration of damaged natural
resources, and, in important respects, unnecessarily promote or
continue litigation.
In any event, it is unlikely that the bill can become law
in anything like it's present form. Before the Committee
markup, the Secretary of the Interior, the Secretary of
Agriculture, the Administrator of the Environmental Protection
Agency, the Chairman of the Council on Environmental Quality,
the Assistant Commerce Secretary for Oceans and Atmosphere, and
the Acting Assistant Attorney General for Legislative Affairs
all wrote letters strongly opposing the bill. After the
Committee voted to report the bill, Vice President Gore issued
a statement saying that the bill ``would sacrifice our
environment and public health to the interests of polluters.''
(The letters and statement are attached.)
Time is running out this Congress. Unless we resume
negotiations and develop a bill that reflects a broad
bipartisan consensus, we fear that, regrettably, the enactment
of legislation to improve the Superfund program will once again
elude us.
Office of the Vice President,
The White House,
March 26, 1998.
statement of vice president gore on senate superfund legislation
The Republican Superfund bill that the Senate Environment and
Public Works Committee approved today would sacrifice our environment
and public health to the interests of polluters.
The Committee is doing more than producing Superfund legislation
that we strongly oppose. Because current law bars the release of
critical 1999 cleanup funds until Superfund legislation is enacted, the
Republican Congress is trying to force the Administration to accept
legislation that lets polluters off the hook. I urge Congress to reject
this misguided legislation. But regardless of this bill's fate, I also
urge Congress to release these critical cleanup funds without delay.
Communities living under the threat of toxics should not have to wait
any longer.
This bill is part of a disturbing anti-environmental trend emerging
in this Congress. On issues ranging from takings legislation to
national forests to clean air, the 105th Congress appears all too
willing to trade away hard-won environmental protections.
This Administration has made its goals for Superfund legislation
clear: speeding cleanups, cutting litigation, and making polluters pay
for the harm they cause. At the start of this Congress, the President
and I met with the Congressional leadership to convey our strong view
that the Senate bill would move in exactly the wrong direction,
weakening cleanup standards and abandoning the ``polluter pays''
principle.
Chairman Chafee sought to develop consensus reforms, but the
Committee has produced a terrible product. It incorporates extreme
proposals advanced by an army of special-interest lobbyists seeking to
weaken Superfund or erase the cleanup obligations of particular
companies. These proposals are the result of a lobbying effort that
began in the 104th Congress and has stymied the cause of commonsense
Superfund reform ever since.
We will continue to search for common ground on Superfund reform.
But I once again urge Congress to disavow proposals that would weaken,
instead of strengthen, the Superfund law.
______
The Administrator,
U.S. Environmental Protection Agency,
Washington, DC 20460, March 24, 1998.
Hon. Max Baucus,
United States Senate,
Washington, DC 20510.
Dear Mr. Baucus: I am writing to voice my concerns on the latest
version of S. 8 that will be marked up by the Senate Environment and
Public Works Committee on March 24.
I appreciate the hard work that you and Senators Smith, Chafee, and
Lautenberg, other Committee members, and majority and minority staff
have devoted to Superfund reform legislation. The new Chairman's mark
has addressed some of the areas of concern I identified at the
September 4, 1997 hearing before the Subcommittee on Superfund, Waste
Control, and Risk Assessment. The new Chairman's mark also incorporates
several of the agreements that we reached during negotiations last
fall. However, the Administration continues strongly to oppose S. 8.
The bill would still weaken public health and environmental protection,
generate new litigation, delay cleanups, and inappropriately shift
cleanup costs from parties that created toxic waste sites to the
Superfund Trust Fund. Clearly, some of the provisions in the bill fail
to meet the Administration's Superfund legislative principles released
on May 7, 1997.
Of particular concern are provisions that:
1. limit the treatment of toxic waste, fail to adequately protect
uncontaminated ground water, and inappropriately elevate the use of
engineering and institutional controls rather than actual cleanup;
2. severely limit Federal authority to clean up toxic waste sites
or respond to toxic chemical spills;
3. reopen hundreds of final consent decrees and provide Federal
payments to parties that created toxic waste sites;
4. contain undefined or confusing new terms and procedures that
will generate new rounds of expensive and time consuming disputes
and litigation and slow down cleanups.
5. replace existing brownfields grant programs, rather than
supplementing them, with a revolving loan program for communities.
I still believe it is possible to reach consensus on Superfund
reform legislation that builds upon the significant improvements we
have been able to achieve through EPA's administrative reforms. As
always, I remain ready to work with you and all of the members of the
Environment and Public Works Committee to enact responsible Superfund
reform legislation this year.
The Office of Management and Budget has advised that there is no
objection to the Agency's views on S. 8 from the standpoint of the
Administration's program.
Sincerely,
Carol M. Browner.
______
Secretary of the Interior,
Washington, March 24, 1998.
Honorable John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.
Dear Mr. Chairman: In anticipation of your Committee's markup on S. 8,
the Superfund Cleanup Acceleration Act, beginning March 24, the
Department of the Interior would like to voice its concerns with the
bill. We appreciate the Senate Environment and Public Works Committee's
efforts to move the Superfund reauthorization process forward. We
strongly oppose S. 8 as currently drafted, but we are interested in
continuing to work with the Committee in an effort to improve the
legislation.
As a natural resource damage (NRD) trustee, the Department of the
Interior believes that the natural resource damage provisions of S. 8
would leave injured resources unrestored and would deprive the public
of full compensation for the loss of injured resources. We also fear
that these provisions would generate high transaction costs by
promoting increased litigation. The bill also fails to address several
key reform issues, including the statute of limitations and record
review, the role of tribal governments, and impacts to tribal cultural
values and natural resources. We are troubled that the Committee has
retreated from S. 8 as originally introduced, which did provide for
judicial review on an administrative record.
We are also concerned over the bill's potential impacts on cleanups
on public lands. Any provisions in legislation addressing this issue
should be certain to retain the primary authority that Federal land
management agencies have to manage, clean up, and take enforcement
actions on public lands that they manage.
While we have significant concerns about other provisions of the
bill, including those relating to liability and remedy, we understand
other agencies will be commenting on these provisions. We welcome the
opportunity to work with you and your staff to develop mutually
acceptable language for reforming CERCLA.
The Office of Management and Budget advises that there is no
objection to the presentation of this report from the standpoint of the
Administration's program.
Sincerely,
Bruce Babbitt.
______
Secretary of Agriculture,
U.S. Department of Agriculture,
Washington, DC 20250, March 24, 1998.
Honorable John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.
Dear Mr. Chairman: In light of your Committee's upcoming markup of S.
8, the ``Superfund Cleanup Acceleration Act,'' I would like to provide
you with an overview of the Department of Agriculture's (USDA) concerns
with the bill. We appreciate the Committee's efforts to move the
Superfund reauthorization process forward. Though we strongly oppose S.
8 as currently drafted, we remain interested in working with the
Committee in an effort to improve the legislation. The following is a
discussion of some of our issues.
As a Natural Resource Damage (NRD) trustee, USDA believes that the
NRD provisions of S. 8 would prevent restoration of critical resources
and would deprive the public of full compensation for the loss of
resources. We also few that these provisions would generate high
transaction costs by promoting increased litigation.
In addition, USDA is troubled that S. 8 would seriously undermine
the ability of the Federal Government to protect Federal facilities and
manage public lands. The transfer of authority to the States and the
treatment of Federal facilities proposed under S. 8 would restrict the
ability of the Federal Government to respond to environmental hazards
when the Federal Government is in the best position to ensure that such
hazards are addressed effectively and efficiently.
For these reasons, we must strongly oppose S. 8 as currently
written. However, we would welcome the opportunity to work with you and
your staff more closely to develop mutually acceptable language for
reforming CERCLA consistent with the Administration's principles.
The Office Of Management and Budget has advised that there is no
objection to the Department's views on S. 8; from the standpoint of the
Administration's program.
Sincerely,
Dan Glickman,
Secretary.
______
U.S. Department of Justice,
Washington, DC 20530, March 23, 1998.
Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.
Dear Mr. Chairman: I am writing to express the Department of Justice's
concerns with S. 8, the ``Superfund Cleanup Acceleration Act of 1997,''
which we understand your Committee will consider this week. As you
know, the Department of Justice remains committed to responsible
Superfund reform that will make cleanups faster, fairer, and more
efficient. The Department has recently reviewed a revised version of S.
8. We appreciate the changes you have made to the bill in order to
address concerns previously expressed by the Department and others.
Unfortunately, despite your recent revisions, the Department continues
to believe that S. 8 would significantly increase litigation and would
substantially impair the government's ability to ensure that the
parties responsible for the contamination are also responsible of
cleanup of those sites, and for this reason, we strongly oppose the
bill.
The Department of Justice is particularly concerned about
provisions in S. 8 that would reopen past cleanup settlements that were
negotiated with potentially responsible parties (PRPs) and entered as
consent decrees by the courts. These prior settlements were intended to
ensure that sites were cleaned up, legal and factual disputes with the
settling PRPS were resolved, and the cost and burden of discovery and
trial were avoided. S. 8 would undo many of those benefits by reopening
these disputes for litigation in an elaborate allocation process, for
the purpose of reimbursing PRPs for cleanup costs that they previously
committed to pay. Inevitably, legal and technical resources that should
be devoted to obtaining new settlements for new cleanups would be
diverted to this massive PRP reimbursement project, resulting in more
lawyer time, fewer new consent decrees, and a slower pace of cleanup.
As you know, the Superfund process is settlement-driven. One of the
great successes of the current program is the high proportion of
cleanups now being performed efficiently by PRPs under settlements that
resolve litigation and conserve the Superfund for use at sites for
which no responsible party can be located. Unfortunately, the
allocation provisions of S. 8 would reward recalcitrance and undermine
incentives for PRPs to agree to cleanup settlements. Under S. 8, a
recalcitrant PRP that refuses to enter into a cleanup settlement after
an allocation may be treated better than a cooperative PRP that enters
into a settlement and assumes responsibility for cleaning up the site.
EPA's option for dealing with such a recalcitrant is to issue an
Administrative Order under Section 106 requiring such a party to
perform the cleanup. Under S. 8, the taxpayers must then reimburse the
recalcitrant party for 100 percent of the costs such a party incurs in
excess of his ``share'' as determined by the allocator. On top of this
financial reward, the recalcitrant PRP is free to continue to litigate
its liability, to challenge the remedy, to seek reimbursement from the
Superfund for all of its costs at some point in the future, and to
challenge settlements between the United States and other PRPs. Far
from reducing litigation, S. 8 promotes it by undermining the
incentives for settlement.
As another example, S. 8 introduces unnecessary new legal obstacles
for the Federal Government to take action to address an ``imminent and
substantial endangerment'' at sites where a response action is
proceeding under State law. Instead of using the well-established
standard of ``imminent and substantial endangerment,'' S. 8 would
determine this issue according to the following new, undefined
statutory criteria: (a) whether the State is ``unwilling or unable'' to
take action to cure a ``public health or environmental emergency;'' (b)
whether the site presents a ``public health or environmental
emergency;'' and (c) whether the facility presents a ``substantial risk
requiring further remediation to protect health and environment.''
These undefined terms may interfere with the ability of the government
to protect human health and the environment, and will spawn new
litigation by displacing the now well-established caselaw under the
existing statutory criteria for Federal action.
As stated above, the Department remains committed to achieving
responsible reform of the Superfund program. We cannot, however,
support legislation that would lead to more litigation and fewer
cleanups. For that reason, we must continue to oppose S. 8 strongly. We
remain willing to work with you to correct these problems and to
accomplish consensus Superfund reauthorization.
The Office of Management and Budget has advised that there is no
objection to the Department's views on S. 8 from the standpoint of the
Administration's program.
Sincerely,
Ann Harkins,
Acting Assistant Attorney General.
______
Executive Office of the President,
Council on Environmental Quality,
Washington, DC 20503, March 24, 1998.
Hon. Max Baucus, Ranking Member,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510.
Dear Senator Baucus: I am writing to express the Administration's views
on the Chairman's mark to S. 8, ``The Superfund Cleanup Acceleration
Act of 1998,'' in anticipation of a markup beginning on March 24, 1998.
As you are aware, the Clinton Administration has long supported
common-sense reforms to the Superfund law through a responsible
reauthorization bill that ensures continued support for cleanups. At
the same time, we must recognize and protect the impressive progress
that the Environmental Protection Agency (EPA) and other Federal
agencies have made in accelerating the cleanup process, restoring
natural resources, and promoting better coordination between response
and natural resource agencies. In the past 5 years, EPA has completed
many more cleanups than were completed in the preceding 12, and will
have made final cleanup decisions at 85 percent of the sites it
oversees by the end of this fiscal year. Cleanup at two-thirds of EPA's
national priority list sites will be completed by 2001. This progress
has been achieved while implementing reforms that have ensured greater
fairness in administering the liability system.
Major progress also has been made in accelerating Superfund
cleanups at Federal facilities through administrative reforms. In
addition, natural resource trustees have been successful in reforming
the natural resource damage programs under Superfund to focus on
restoration, rather than monetization and protracted litigation to
recover damages.
We share your view that, despite this progress, there are areas
where statutory reform continues to be needed and appropriate. We need
to ensure, however, that any statutory change truly improves the
Superfund program, enhances and accelerates restoration of natural
resources, and eliminates rather than encourages excessive litigation.
We regret that S. 8 does not meet this standard and threatens to stymie
the progress that the Clinton Administration has made to date.
We have expressed these concerns since the introduction of S. 8 at
the start of the 105th Congress. We regret that your efforts over the
past year to negotiate reasonable compromises on the issues that have
divided us have been unavailing. As revised in the Chairman's mark, the
bill still falls far short of one that would improve the Superfund
program and has generated strong objections from an array of Federal
agencies and the communities with which they work.
Accordingly, the Administration would strongly oppose the bill if
it is reported in its current form. We are particularly concerned about
provisions in the bill that would encourage excessive litigation,
undermine the ability of our Federal natural resource trustees fully to
restore injured natural resources to our communities, and increase
costs to parties performing cleanups. Regrettably, several of the
provisions in S. 8 continue to reflect proposals advocated by a small
set of companies seeking to create new and unwarranted obstacles to
restoration at particular sites.
I hope that you will afford the Administration a further
opportunity to work with you to improve the provisions of the bill that
are of concern to us. The Office of Management and Budget advises me
that there is no objection to this letter from the standpoint of the
President's program.
Sincerely,
Kathleeen A. McGinty,
Chairman.
______
Assistant Secretary for Oceans and Atmosphere,
U.S. Department of Commerce,
Washington, DC 20230, March 24, 1998.
The Honorable John H. Chafee, Chairman,
Committee on Environment and Public Works,
United States Senate,
Washington, DC 20510-6175.
Dear Mr. Chairman: The National Oceanic and Atmospheric Administration
(NOAA) of the Department of Commerce appreciates your efforts to reform
Superfund during the 105th Congress. Nevertheless, after reviewing the
natural resource damage provisions of the Chairman's mark, we maintain
our strong opposition to S. 8: The Superfund Cleanup Acceleration Act.
The most serious problems with this legislation include restrictions on
the range of values that trustees may consider in achieving full
restoration and its failure to clearly address the Administration's
concerns regarding the statute of limitations and record review. NOAA
is committed, as are all the Federal natural resource trustees, to
restoring natural resources that have been injured by releases of
hazardous materials, thereby preserving America's natural resource
heritage for future generations. We are concerned that S. 8 would leave
injured resources unrestored and generate extremely high transaction
costs.
We urge you to include in S. 8 provisions to clarify that natural
resource damage claims are to focus on restoration and be presented in
a more timely and orderly fashion than is currently required by law,
thereby discouraging premature litigation and enhancing coordination
and integration of remedy and restoration. We are strongly opposed to
S. 8 in its present form because it would seriously curtail the ability
of trustees to recover natural resource damages, thereby depriving the
people of this Nation of the right to have their natural resources
fully restored to health and productivity.
NOAA stands ready to meet with you and your staff to discuss our
objections and work on alternative language. Again, NOAA appreciates
your efforts to develop CERCLA reform legislation acceptable to all
stakeholders, and we look forward to working with you during the
remainder of the 105th Congress.
Sincerely,
Terry D. Garcia.
MINORITY VIEWS OF SENATORS BAUCUS AND LAUTENBERG
INTRODUCTION
We have written these additional Minority views in order to
provide further background and detail about why we oppose S. 8.
The Superfund program plays a unique and important role
among our environmental protection laws. At the end of the 20th
century, we have confronted one of the century's unfortunate
legacies. Industrial development dramatically increased our
standard of living. But it left a legacy of hazardous waste
sites, all across the country: chemical waste dumps in New
Jersey; mine tailings that dot the landscape of the mountain
west; the residue of huge Federal complexes at Rocky Mountain
Arsenal in Colorado and Hanford, Washington. In 1980, this
Committee found that ``[c]hemical spills capable of inflicting
environmental harm occur about 3,500 times each year,'' and
that ``[m]ore than 2,000 dumpsites containing hazardous
chemicals are believed by the Environmental Protection Agency
to pose threats to the public health.''
These sites pollute drinking water, expose children to
toxic chemicals, and destroy neighborhoods. In 1997, Senator
Lautenberg said that:
data from the Agency for Toxic Substances and Disease
Registry shows troubling trends in my home State of New
Jersey. The data show that in all but 1 of 21 counties,
cancer rates in areas around hazardous waste sites
exceed the national average. Studies from other parts
of the country--Idaho, Illinois, Kansas, Missouri,
Pennsylvania, California--also suggest that those
living near toxic waste sites, particularly children,
suffer disproportionately from serious health problems
. . . .
In 1980, with the leadership of this Committee, Congress
addressed the problem by enacting the Superfund program.
Superfund complements pollution control laws, like the Clean
Water Act and the Solid Waste Disposal Act, by providing for,
in the words of the Act's preface, ``liability . . . cleanup,
and emergency response for hazardous substances released into
the environment and the cleanup of inactive hazardous waste
disposal sites.'' By 1993, there were more than 1200 sites on
the National Priorities List, slated for long-term cleanup
actions, and construction had been completed at 164 sites. In
addition, EPA had taken more than 3300 removal actions at
nearly 2600 sites.
By 1993, however, there was a growing sense that the
Superfund program was not working as well as it should.
Cleanups were too slow, and sometimes too costly. Litigation
and other transaction costs were too high. Small businesses,
scout troops, and residential homeowners were inappropriately
caught up in the liability system. Local communities were not
fully involved in important decisions about cleanup plans. The
Federal-State relationship was strained.
In his first address to Congress, President Clinton
acknowledged these problems. Soon thereafter, EPA initiated a
process to seek consensus among a wide range of interested
parties, under the auspices of the National Advisory Committee
on Environmental Policy and Technology (NACEPT); the Keystone
Center and the University of Vermont Law School established a
complementary group, the National Commission on Superfund.
Around the same time, the Superfund Subcommittee began a series
of hearings on the major issues facing the Superfund program.
NACEPT and the Superfund Commission made their
recommendations in late 1993. In February 1994, the
Administration proposed legislation that embodied many of the
recommendations of the two groups, and we introduced the
Administration's proposal as S. 1834, The Superfund Reform Act
of 1994. The Subcommittee and full Committee held several
further hearings on the bill and, in August 1994, the Committee
reported the bill by a vote of 13-4.
S. 1834 wasn't perfect. But it did make several important
changes to the Superfund program: reducing cleanup costs,
taking small parties out of the liability system, streamlining
the system for others, and increasing community participation.
Overall, EPA estimated that the bill would reduce cleanup costs
by 25 percent and litigation costs by 50 percent. The bill had
broad bipartisan support, and was endorsed by groups ranging
from the Chemical Manufacturers' Association to the National
Federation of Independent Businesses to the Sierra Club.
However, for a variety of reasons, S. 1834 was not enacted
into law.
Nevertheless, the Superfund program was changing, for the
better. Not because of a new law, but because of improved
implementation of the existing law. The improvements began
under President Bush and EPA Administrator William Reilly.
After S. 1834 was not enacted, EPA Administrator Browner and
others in the Clinton Administration aggressively undertook a
series of major administrative reforms. EPA established a
remedy review board to review complex and high-cost cleanup
plans. It began systematically offering ``orphan share''
funding to encourage settlements. It used its settlement
authority to remove small volume waste contributors from the
liability system. It negotiated memoranda of understanding with
several States, whereby States take the lead in site assessment
and cleanup. And it developed a ``Brownfields Action Agenda''
to promote cleanup and economic redevelopment.
These and other reforms have had a significant effect. In
September 1997, EPA Administrator Browner testified that:
proof of a fairer, faster Superfund can be found in
several simple indicators. We have completed cleanup at
447 sites on the National Priorities List, and 500 more
are in construction. We have reduced by more than a
year the average duration of the long-term cleanup
process, with much faster cleanups, at sites using
presumptive remedies . . . . Our most recent analysis
makes us optimistic that we can continue to accelerate
the pace of cleanups and achieve our goal of a 20
percent reduction, or 2 years, in the total cleanup
process time. Additionally, responsible parties are
performing or funding approximately 70 percent of
Superfund long-term cleanups, saving taxpayers more
than $12 billion.
Meanwhile, EPA has succeeded in removing over 14,000
small contributors from the liability system, 66
percent of these in the last 4 years. We offered orphan
share compensation of over $57 million last year to
responsible parties willing to negotiate long-term
cleanup settlements, and continued the process this
year at every eligible site. Finally, costs of cleanups
are decreasing because of a number of factors,
including: the use of reasonably anticipated future
land use determinations, which allow cleanups to be
tailored to specific sites; the use of a phased
approach to defining objectives and methods for
groundwater cleanups; and EPA's 15-plus years of
implementing the program providing greater efficiencies
and lower costs when selecting cleanup options.
In the first session of the 104th Congress, most of the
Majority members of the Committee introduced S. 1285, which
contained provisions that went significantly beyond those of S.
1834. For example, the bill would have given companies a 50
percent tax credit for their pre-1980 cleanup costs, shifting a
significant share of cleanup costs from potentially responsible
parties to the general public. The bill also contained
provisions that would have reopened potentially hundreds of
settled cleanup decisions; completely eliminated the preference
for remedies that treat hazardous waste (rather than leave it
in place); repealed the requirement that cleanups meet
applicable Federal and State standards; prohibited the
consideration of the intrinsic value of damaged natural
resources when determining how to restore those resources;
allowed States to assume responsibility for the program with
minimal review and oversight; and imposed an arbitrary cap on
the number of Superfund sites on the National Priorities List.
The bill was, in a word, extreme. Many of us who had supported
the previous reform effort concluded that we had no choice but
to strongly oppose S. 1285.
After S. 1285 was introduced, Senators Chafee and Smith
invited us to begin negotiations seeking a bipartisan
compromise, and we agreed. Throughout 1996 and most of 1997,
the negotiations continued. We made significant progress,
resolving some important issues. Several revised versions of
the bill were introduced or circulated, including S. 8; in most
respects, each was an improvement. However, despite the good
faith efforts of all parties, many important issues remained
unresolved, including issues regarding cleanup standards,
liability relief, community participation, the State role in
the program, and natural resource damages.
The Majority decided that, rather than seeking to resolve
the remaining differences through continued negotiation, the
Committee would proceed to markup. At the markup, we filed a
complete substitute for the bill (which we refer to hereafter
as ``the Substitute''). We also offered a series of amendments.
Some were accepted; many were not, and were defeated.
All told, the bill reported by the Committee reflects an
extraordinary amount of work, and some significant compromises.
But we should not judge the bill by the number of hours that
have been spent working on it, or by the distance that has been
traveled from the extreme bill that was considered early in the
104th Congress. We should judge the bill by one measure only:
whether, on balance, the bill gives the American people a
better Superfund program--better for public health, better for
the environment, better for communities, better for small
businesses, and better for the economy.
By that measure, the bill falls short, by a wide margin.
Below, we explain why. \5\
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\5\ These views describe our main concerns, but are not intended to
provide an exhaustive list of every concern that we have with S. 8.
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REMEDY
Introduction
Before addressing our principal objections to S. 8's remedy
provisions, we would be remiss if we did not note that during
negotiations prior to markup we reached agreement with the
Majority concerning several provisions, and that those changes
are reflected in S. 8.
These include: elimination of the requirement under current
law that remedies meet ``relevant and appropriate''
requirements from other laws; consideration of future land use
in selecting remedies; and codification of EPA's administrative
reforms that accelerate remedy selection and cleanup by
streamlining study phases, relying on standardized or
``presumptive'' remedies, and increasing PRP involvement in
cleanups.
In addition, during markup, the Majority accepted three
amendments offered by Democratic members to address some of our
concerns with the cleanup provisions of S. 8: an amendment by
Senator Boxer to make explicit that remedies must protect the
health of children and other sensitive subpopulations; an
amendment by Senator Wyden to strengthen the provision on
cleanup of contaminated ground water; and an amendment by
Senator Baucus to strike a provision that required
institutional controls to be considered on equal footing with
other alternatives.
These amendments improve the bill. But the bill still falls
far short of meeting our goals of ensuring that:
Lremedies protect human health and the
environment over the long-run;
Lcontaminated ground water is restored to
beneficial uses and clean ground water will not be
contaminated; and
Lcleanups are accomplished more quickly and
efficiently and at less cost, without sacrificing
protection of human health or the environment.
During markup it was asserted that although S. 8 was not
perfect from the Majority's perspective or ours, it represented
an improvement over current law. We disagree. We cannot support
a bill that reduces the level of protection that the citizens
of this country have come to expect, for themselves, their
children, and the groundwater that they rely on for drinking
water and other purposes, as would S. 8. It is with
disappointment that we conclude that the remedy title of S. 8
does more harm than good.
The following discussion addresses some of the instances in
which S. 8 would weaken cleanup of the most contaminated toxic
waste sites in this country. The primary focus is the adverse
impact that the bill would have on protection of human health
and on the quality of our Nation's water resources, over the
long run.
First, we discuss two related provisions that would
significantly influence the long-term reliability of remedies
selected for cleanup of particular sites (i.e., treatment of
waste versus efforts at on-site containment). Those are the so-
called ``preference for treatment,'' and provisions regarding
institutional controls. Second, we discuss instances in which
the bill would reduce protection of human health, by lowering
the standard for what is considered to be an acceptable level
of cancer risk to human health and by allowing for the waiver
of protective standards on grounds that include cost. Third, we
discuss some provisions that would compromise protection of
clean ground water and surface water, and lead to inadequate
cleanup of contaminated ground water and surface water. Fourth,
we discuss concerns with the role of cost in cleanup decisions
under S. 8. Finally, we discuss provisions that would divert
resources from and delay cleanups.
The Bill Contains an Inadequate Preference for Treatment and Safeguards
for Waste Left in Place
A. Preference for treatment. S. 8 fails to encourage the
use of remedies that involve treatment for even the most toxic
and mobile hazardous waste. Unlike S. 8 as introduced, the bill
now does nominally contain a preference for treatment. But
there are so many hurdles before the so-called preference would
be triggered that it would rarely, if ever, apply. Thus,
containment of waste on site would be used much more often. The
uncertainties associated with the long-term effectiveness of
containment remedies, and with use of institutional controls to
prevent uses of land and groundwater that are incompatible with
a remedy and level of cleanup, would significantly increase the
risks of contaminant migration and of human exposure over time.
Current law contains a preference for remedies that involve
treatment of hazardous waste as a principal element and a
mandate for use of permanent solutions and treatment to the
maximum extent practicable:
Remedial actions in which treatment which permanently
and significantly reduces the volume, toxicity or
mobility of the hazardous substances, pollutants, and
contaminants is a principal element, are to be
preferred over remedial actions not involving such
treatment . . . . The President shall select a remedial
action that . . . utilizes permanent solutions and
alternative treatment technologies . . . to the maximum
extent practicable'' (section 121(b)(1)).
These provisions were added in the 1986 amendments to
CERCLA, to address concerns regarding the extent of EPA's
reliance on containment remedies under Superfund. At a 1984
hearing before this Committee, a representative of the Clean
Water Action Project described the inadequacy of Superfund
remedies as follows:
There is considerable evidence that the cleanups
currently being conducted or planned do not provide
adequately for the protection of public health . . . .
[T]o date the cleanups have been designed to contain,
rather than to eliminate (remove/detoxify), the
hazardous wastes and large volumes remain in the ground
. . . .
In its attempts to hold down capital costs, EPA has
based cleanups largely on (1) surface removal (2)
containment of underground hazardous waste (3)
isolation of the wastes from rainfall and groundwater
infiltration (4) collection of leachates (5) pumping
and treatment of contaminated ground water and (6)
transfer to landfills. Unfortunately these methods have
been shown to break down rapidly; slurry walls and
liners leak, collection systems clog and clay caps are
vulnerable to erosion. Most importantly highly
concentrated sources of materials remain hazardous for
indefinitely long periods and the public continues to
be vulnerable and justifiably anxious. The danger
remains whether material is being contained at the
primary site or transported to a secondary site . . .
Congress should enact proposals to promote permanent
cleanups.
In response to concerns like these, Senator Mitchell noted
during the floor debate on the 1986 amendments that ``[i]t is a
major purpose of this legislation to establish a statutory bias
toward the implementation of permanent treatment technologies
and permanent solutions in the selection of remedies, whenever
they are feasible.''
Since 1986, the preference for treatment and mandate for
permanence have been criticized as resulting in the selection
of treatment remedies in instances where other remedies would
be protective at a lesser cost so-called ``treatment for
treatments's sake.''
To our knowledge complaints have subsided about instances
where selection of a treatment remedy was overkill. EPA data
bear this out, showing a trend away from treatment remedies.
Between 1988 and 1993, EPA selected treatment remedies for
source control approximately 70 percent of the time. In 1994
and 1995 it selected treatment remedies 59 percent and 53
percent of the time, respectively. EPA relies on containment
remedies for wastes that pose relatively low long-term threats,
or where treatment is impracticable, such as at extremely large
sites. Therefore, remedies at landfills and mining sites
routinely rely on containment as the predominant response.
However, a treatment component may be appropriate at these
sites too, such as treating groundwater that has been
contaminated by the waste. At sites where treatment is found
not to be practicable, it is not used or, in certain unusual
circumstances, EPA may treat only part of a principal threat,
and contain the rest. For example:
LAt the Anaconda Company Smelter Site in
Anaconda, Montana, a new Jack Nicklaus signature golf
course was built over hazardous mining and smelter
tailings.
LAt the Raymark Industries site in Stratford,
Connecticut, EPA did not treat principal threats due to
unacceptable adverse short-term impacts and high costs
associated with finding and treating hot spots amid the
480,000 cubic yards of fill that was up to 24 feet
deep. EPA did, however, require measures, including
extraction and treatment of solvents, to prevent
contamination of ground water from highly concentrated
pockets of liquid solvents at the site.
LAt the Bunker Hill Mining site in Kellog,
Idaho, EPA did not require treatment of soils at the
1,800 residential properties within the site, based on
the nature of metal contamination, and because the
costs of treating such high volumes of contaminated
soil were prohibitive. Instead, contaminated yard soils
were excavated and disposed of in a repository onsite,
and yards replenished with clean soil. Treatment was
used to treat leachate, runoff from a portion of the
site, and contaminated wetlands at other parts of the
site.
Under the current program, EPA targets treatment at
``principal threats.'' The revised National Contingency Plan
(NCP), promulgated in March of 1990, provides that EPA expects
to use ``treatment to address the principal threats posed by a
site, wherever practicable,'' and ``engineering controls, such
as containment, for waste that poses a relatively low long-term
threat.'' In November of 1991, EPA issued ``A Guide to
Principal Threat and Low Level Threat Wastes,'' which provides
guidance on how to make site-specific determinations regarding
treatment versus containment. This guidance provides that
``principal threat wastes are those source materials considered
to be highly toxic or highly mobile that generally cannot be
reliably contained or would present a significant risk to human
health or the environment should exposure occur.'' For example,
at Bayou Bonfuoca in Louisiana, EPA determined that
incineration was necessary to treat creosote waste that had
leaked into the bayou. The waste was so potent that divers
received second degree chemical burns from contact with the
contaminated sediments. The contamination also killed all life
in the bayou.
The current more limited use of treatment remedies has
prompted some to question whether the treatment provisions
under existing law should be modified at all. In testimony
before this Committee, witnesses for the Environmental Defense
Fund (EDF) (Karen Florini) and Natural Resources Defense
Counsel (NRDC) (Jacqueline Hamilton) stated: ``Given current
EPA practice of cleanup to unrestricted use at only one-third
of sites even with the existing preference for treatment, we
have increasing reservations about whether there is any
rationale for changing this portion of the law.'' The
Association of Metropolitan Water Agencies testified that it
``supports the continuation of the current law's broad
preference for treatment and could not support the narrow
preference for `hot spots' only.''
S. 8 eliminates the mandate for permanence and treatment,
and provides that the preference for treatment does not apply
unless each of five conditions are met: that contamination--
Lcannot be reliably contained, and
Lpresents a substantial risk to human health
and the environment, because it is highly toxic, and
Lit is highly mobile, and
Lthere is a reasonable probability that
actual exposure will occur, based on an evaluation of
site-specific factors.
S. 8's so-called preference is so narrow that it would
rarely apply, even where common sense tells us it should apply.
It would not apply even at a site where hazardous waste could
not be reliably contained and is highly toxic, and there is a
reasonable probability of actual exposure, if the waste were
not also highly mobile. Some examples of actual contaminants
and sites illustrate the severity of the constraints on the
purported preference in S. 8:
LThe preference would not apply where
contaminants are highly toxic but not highly mobile,
such as dioxin (Love Canal in New York and Times Beach
in Missouri), PCB's (New Bedford Harbor in
Massachusetts and Wide Beach Development in New York)
(in some conditions PCBs can be so persistent that
levels remain virtually unchanged for decades), and
polyciclic aromatic hydrocarbons (PAHs) (Bayou Bonfuoca
in Louisiana).
LThe preference would not apply where
contaminants are highly mobile but not highly toxic,
such as pentachlorophenol (PCP) (Libby Groundwater
Contamination site in Montana), organic solvents (the
Miami Drum site in Florida) (at the Miami Drum site
contamination caused the shutdown of several well
fields that supplied drinking water for much of
southeast Florida), trichloroethylene (TCE) (Advanced
Micro Devices in California), and solvents (Pasley
Solvents and Chemicals in New York).
LThe preference would not apply where
chemicals can have acute toxicity at high
concentrations and chronic toxicity at low
concentrations, such as mercury (General Electrical Co.
Wiring Devices site in Puerto Rico).
Of course, less treatment means that more contaminated
material will remain on site and pose higher potential threats
for future generations, should institutional or engineering
controls fail. Less treatment also means more ``dead zones'' of
unproductive, contaminated property, instead of encouraging
beneficial reuse of Superfund sites.
The Majority has argued that the preference for treatment
in S. 8 must be read in conjunction with the remedy selection
balancing factors. They suggest that where treatment is the
appropriate remedy, it will be chosen due to the balancing
factor pertaining to long term reliability. This argument
misses the point. It is based on an assumption that we can
somehow look into the future and know whether and when waste
that was left in place will migrate into a clean aquifer, or
excavation for new construction will destroy an essential
component of a remedy. And when a remedy is selected there may
be different views as to its long term reliability: the fact
is, often we cannot know which view is the correct one. Hence
the need for a preference for treatment. Any suggestion that
the long term reliability factor constitutes an implicit
preference for treatment is inconsistent with the provision in
S. 8 that ``no single factor predominates over the others''
(section 121(a)(3)(A)).
The preference for treatment is essential precisely because
of the unavoidable limitations in our knowledge regarding the
future speed and pathways of contaminant migration, future
trends in population that will influence needs for land and
ground water at particular locations, and human activities. In
view of the high stakes--potential future contamination of
drinking water sources, and threats to the health of our
children and grandchildren--we should take a somewhat
conservative approach to making decisions to leave toxic waste
in place, untreated.
A meaningful preference for treatment would tip the scales
in favor of treatment of the principal threats. This can be
accomplished in a way that does not lead to unjustifiably
costly remedies. Moreover, the cost of treatment remedies
really can only be appreciated in relation to the potential
future cost of addressing unforseen conditions that may result
from not treating the waste in the first instance. In other
words, it pays to prevent. If the containment fails at any time
in the future, people may be exposed to contamination and
contamination may migrate into a clean aquifer, resulting in
new threats, new uncertainties, and new costs. In addition, the
claim that treatment remedies are significantly more costly
than are remedies where the waste is left in place often is
founded on an incomplete consideration of the potential costs
associated with containment remedies. Unlike remedies that more
permanently eliminate hazardous waste, containment remedies may
require maintenance long into the future, meaning that the
costs will have to be borne by future generations. Focusing on
up-front capital costs, to the exclusion of potential future
costs (that are less certain and more difficult to quantify)
associated with containment remedies, frequently results in an
understatement of the true costs of containment remedies.
These considerations emphasize the importance of
maintaining a meaningful preference for treatment.
At markup, Senators Baucus, Moynihan and Boxer offered an
amendment that would have stricken the so-called preference in
S. 8, and inserted a preference for treatment of principal
threats. The amendment would have modified current law by
eliminating the mandates for permanent remedies and treatment
and narrowing the scope of the preference for treatment from
site-wide to principal threats. The Substitute contained the
same provision.
The amendment was intended to reflect current practice,
which to our understanding is working well. To critics of the
preference for treatment in current law, our amendment would
have provided heightened assurance that EPA would not abandon
its limiting interpretation of the current preference. We
intended that such a change would reflect and codify, not
reduce, the current approach to selection of treatment
remedies. We were disappointed that the amendment was defeated.
In all likelihood, the weak preference for treatment in S.
8 would result in a sharp reduction in treatment remedies. That
would mean that the effectiveness of our so-called
``containment'' remedies would depend on how reliably they
actually contain toxic waste over the long-term. And that, and
our ability to prevent exposure, depend in large part on the
effectiveness of institutional controls.
B. Institutional Controls. Generally, institutional
controls serve one of two functions: to protect the remedy,
both during construction and over the long-run; and to prevent
certain human activities that would be inconsistent with the
remedy and which, if undertaken, would pose an unacceptable
level of risk. For example, an institutional control may
prohibit excavation at a park that is located on top of a
landfill, to preserve the integrity of the landfill cap.
Another may restrict a site to industrial use, due to levels of
residual contaminants that render the site unsafe for
residential use.
In effect, a preference for treatment and against sole
reliance upon institutional controls are flip sides of the same
coin. As Administrator Browner testified before this Committee
in September of 1997:
the Administration supports treatment for those wastes
that are highly toxic or highly mobile, in light of the
continuing challenges in ensuring the long-term
reliability of engineering and institutional controls,
as well as the limitations that containment and
institutional controls place on productive reuse or
redevelopment of property.'' The limited effectiveness
of institutional controls is reflected in the NCP
provision that ``the use of institutional controls
shall not substitute for active response measures . . .
as the sole remedy unless . . . active measures are
determined not to be practicable (40 CFR
300.430(a)(iii)(D)).
Issues relating to the use of institutional controls in
connection with hazardous waste cleanup have come to the
forefront relatively recently. Although EPA's use of
institutional controls such as restrictive covenants,
easements, and other deed restrictions as a component of
remedial actions is not new, heightened scrutiny is now being
given to the effectiveness of these mechanisms. The increased
focus on institutional controls is not coincidental. As noted
above, decreased use of remedies that treat waste to reduce its
toxicity, mobility, and volume gives rise to a need for other
means to prevent exposure over the long-run.
In addition, the movement toward consideration of
anticipated future land use in remedy selection decisions opens
the door for less stringent cleanup standards in some
instances. In a recent report on the problems associated with
reliance on institutional controls for protection from threats
associated with hazardous waste, Linking Land Use and Superfund
Cleanups: Uncharted Territory, Resources for the Future
cautions that land use designations (such as industrial,
commercial, residential) are not always accurate as proxies for
exposure, and that accurately predicting future uses is ``no
easy task.''
As noted earlier, the Majority accepted a Democratic
amendment to strike the provision that remedies that rely on
institutional controls shall be considered on equal footing
with other remedial alternatives. That is a step in the right
direction. However, it does not compensate for the absence of
affirmative provisions in S. 8 sufficient to ensure the long-
term reliability of institutional controls.
Since virtually all institutional controls are creatures of
local or State property law, there is a great degree of
variability, and EPA is forced to rely on a complex patchwork
of mechanisms. In many instances institutional controls that
are available under these laws have limitations that render
them unreliable for use in the hazardous waste context. For
example, some States' easements automatically terminate at a
time certain, regardless of whether they continue to be needed
for the remedy to be protective; some State laws require
privity, so that institutional controls would not apply to
subsequent property owners; some limit enforcement authority to
the holder of the property interest. Resources for the Future
also notes the sometimes highly political nature of zoning
decisions and variances, making them particularly unreliable
and ill suited as a component of a Superfund remedy. Since in
many instances institutional controls are an essential element
to ensuring protection at a site, ``the effectiveness of these
controls becomes a crucial component of the remedy.''
In testimony, EDF and NRDC summarized the problems with S.
8's treatment of institutional controls as follows:
The definition of ``institutional controls'' is itself
overly broad. While zoning, land use plans, and
notification systems may be extremely valuable as
supplements to institutional controls, these devices
are too ephemeral and/or too weak to serve as
institutional controls in this context . . . .
Similarly, the bill's current ``requirements'' for
institutional controls--that they are ``adequate to
protect human health and the environment,'' ``ensure .
. . long-term reliability,'' and ``will be
appropriately implemented, monitored, and enforced''--
are far too vague to be meaningful. Rather, the bill
must explicitly require that specific criteria be met
for any institutional control that is adopted as part
of a remedy. These include, at a minimum:
Lpermanence (i.e., the control will remain in
effect until removed following an affirmative, site-
specific determination that it is no longer needed
because the contamination is gone);
Luniversality (i.e., applies to all current
and future interest-holders of the land or water);
Lenforceability (i.e. by all interested
parties, including citizens); and
Lpermanent notice (i.e., in land records
unless inappropriate given the specific nature of the
control).
The consequences of failed institutional controls can be
devastating. Most visible is the Love Canal site in the State
of New York. For ten years between 1942 and 1952, 21,000 tons
of chemical wastes, including dioxins, were disposed of in the
former canal turned landfill. In 1953 the landfill area was
covered and deeded to the Niagara Falls Board of Education. The
deed of sale warned of the industrial wastes on the property.
Subsequently, the area near the landfill was extensively
developed, compromising the integrity of the landfill cover. In
addition, the backyards of some of the newly built houses
bordered the landfill and various storm drains and sanitary
sewer lines punctured the sidewalls of the landfill. Toxic
materials seeped into the basements of homes, and a rising
water table caused chemicals to migrate from the landfill to
nearby sewers and creeks. Deteriorating drums rose to the
surface. Residents had to be relocated.
As this example demonstrates, we must ensure that in
instances where remedies do rely on containment, institutional
controls will effectively limit the uses of land and
groundwater to those that are compatible with the remedy. Where
land use does change, then the protectiveness of the remedy
must be reevaluated in light of the new use, and the remedy
modified accordingly. And it must be clear who will bear
responsibility for any necessary modifications. Since the PRPs
incur fewer costs when remedies contain, rather than treat,
hazardous waste, it is appropriate that they bear this
responsibility. So, for example, if a lead-contaminated site is
designated for industrial use and cleaned up only to levels
appropriate for that use, then 20 years later becomes the site
for a day-care center, children could be exposed to
unacceptable levels of lead. Effective mechanisms are needed to
ensure that either the remedy is upgraded to be protective for
use as a day care center, or the property is not used for a day
care center. The Association of State and Territorial Solid
Waste Management Officials (ASTSWMO) testified concerning this
issue:
ASTSWMO does recommend that institutional controls and
other designated restrictions necessary to implement a
particular remedy be made legally enforceable, run with
the land, and be binding among all parties to implement
the restrictions. Financial responsibility mechanisms
should also be identified to provide for the perpetual
maintenance of these sites in case the responsible
parties are unable to do so.
Our Substitute includes safeguards to prevent reliance on
unreliable mechanisms to protect against the long-term threats
posed by untreated toxic waste. For example, it contains
baseline requirements for institutional controls before they
may be relied on as part of a remedial action. These include
requirements that any restrictions on land use or other
activities are adequate to protect human health and the
environment over the long term, are binding on current and
future owners and lessees of the property, are enforceable, are
publicly noticed, and will remain in effect until terminated
upon a determination that they are no longer necessary to
protect human health and the environment.
The Substitute also creates a new authority for a Federal
easement to restrict uses of property or activities that would
be inconsistent with a remedy that leaves waste on site. This
mechanism is intended to avoid the shortfalls of certain
institutional controls currently available, which make them
inadequate to protect human health and the environment over the
long run. \6\
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\6\ Our Substitute would not create new authority to allow EPA and
the States to dictate local land use. Rather, it would provide that if
a remedy is selected assuming a particular land use (i.e., industrial,
not residential), and that remedy will be protective only if the land
use is so restricted, then if the land use is to change, the remedy
must be reassessed and modified, as necessary, so that it will continue
to be protective.
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The Bill Reduces Protection of Human Health By Lowering the Current
Acceptable Level of Cancer Risk and Allowing a Waiver of Risk-
Based Standards Based on Technical Impracticability
During all of the hours of hearings, negotiations and
markup, we do not recall ever having heard anyone say that they
support rolling back the protection of human health. Yet that
is exactly what S. 8 would do. Some of the provisions that
contribute to the reduction of human health protection are
discussed below.
Currently CERCLA contains a narrative standard, which
requires EPA to select remedies that ``attain a degree of
cleanup of hazardous substances . . . at a minimum which
assures protection of human health . . . .'' Under the National
Contingency Plan (NCP), EPA has interpreted the statute to
require cleanups to attain a cleanup level for carcinogens
based on a cancer risk in the range of 10-4 to
10-6, with 10-6 as the point of
departure. Hence, the current standard uses 1 additional cancer
death in a population of 1,000,000 as the starting point, but
allows that standard to be reduced to 1/10,000. Movement from
the point of departure may be based on considerations including
technical limitations, such as quantification and detection
limits for a particular contaminant.
S. 8 departs from current law and practice in two
significant respects. First, while using the same risk range as
in the NCP, S. 8 eliminates the 10-6 point of
departure. By eliminating the point of departure, the bill
tilts remedy selection to the less protective end of the risk
range. As witnesses from EDF and NRDC testified before this
Committee: ``As a result, cost considerations are likely to
tilt remedies toward the less-protective outcome, since
cleaning up to a less protective level is almost always
cheaper.''
Second, S. 8 prescribes a numerical cleanup standard in the
statute itself. Administrator Browner testified concerning the
problems associated with prescribing numeric risk levels in the
statute, rather than in regulation:
by prescribing numeric risk goals, the bill would lock
the Agency into current methods of expressing and
measuring risk, which are in transition as the science
is changing. Under the Agency's new cancer guidelines,
there will be decreasing reliance on linear models
which underlie the risk range . . . and new units of
measures, including `margin of exposure' will begin to
be used.
In any event, if numerical limits are used, they should at
least strive to achieve levels that are protective. Yet, under
S. 8, the level of protection is much more likely to be 1 in
10,000, or 100 times less protective. \7\
---------------------------------------------------------------------------
\7\ Despite numerous iterations of S.8 since its introduction, the
bill persists in inappropriately linking the hazard index, which
applies only to noncarcinogens, to ``threshold'' carcinogens.
---------------------------------------------------------------------------
We are also concerned that the technical impracticability
waiver in S. 8 expands the technical impracticability waiver in
current law, opening the possibility that risk-based cleanup
standards may be waived based on cost considerations. Under
present law, remedies are required to meet cleanup levels
derived from two sources. First, they must meet standards in
other Federal or State environmental laws that are ``applicable
or relevant and appropriate'' (ARARs) to the cleanup. (There is
general agreement that this requirement should be modified to
require compliance only with those standards that are
``applicable.'') Second, since in some instances ARARs do not
exist, or cleanup to applicable standards will not be
sufficiently protective to meet the mandate to protect human
health and the environment, remedies also are required to meet
site-specific risk based standards.
Current law authorizes the waiver of ARARs on specified
grounds. But it does not authorize the waiver of risk based
cleanup standards under any circumstances. One ground for
waiver of ARARs is ``technical impracticability,'' which has
been interpreted to mean (and in S. 8 is defined to mean)
impracticable due to engineering infeasibility or inordinate
cost.
Although S. 8 is somewhat ambiguous on this point, the bill
could be interpreted to allow the waiver of risk-based cleanup
standards based on technical impracticability. On the one hand,
section 121(b)(5)(A) seems to open the door for a waiver of
risk-based standards, by saying that risk based standards may
be waived based on technical impracticability (which includes
consideration of cost), in which case a remedy must be selected
that is technically practicable and ``will most closely
achieve'' the ``goals'' of protecting human health, through
cost-effective means. On the other hand, in a seemingly
contradictory provision (section 121(a)(1)(B)(i)), the bill
contains a more absolute requirement for remedies to protect
human health.
As Administrator Browner testified: ``We cannot afford any
confusion over the fact that protection of human health and the
environment is a fundamental mandate that must be met in all
cases without exception.'' In view of the fact that protection
of human health and the environment is the foundation of
Superfund, we oppose any provision that leaves room for doubt
as to whether there may be exceptions to the requirement to
meet this standard, based on technical impracticability or any
other grounds.
The Bill Will Lead to Inadequate Cleanup of Contaminated Water and Let
Clean Water Become Contaminated
More than 85 percent of all fresh water in the United
States is ground water. Over 50 percent of Americans get their
drinking water from ground water, and this demand is steadily
increasing. Between 1970 and 1990, Alaska, Arizona, California,
Florida, Kentucky and Missouri all doubled their use of ground
water for public water supply. Between 1985 and 1990, the
population of the United States grew 4 percent, but ground
water use grew 8 percent. Nine States rely on ground water to
supply drinking water to over 75 percent of their population.
Florida, New Mexico and Mississippi rely on ground water for at
least 90 percent of their drinking water supply. In rural areas
reliance on ground water for drinking water can be as high as
95 percent of the population. Approximately 20 million
Americans rely on private wells fed by ground water without any
treatment, and 20 percent of drinking water systems supplied by
ground water do not provide any treatment. Ground water also is
the source for uses other than drinking water. It is the source
of 37 percent of agricultural irrigation water and 14 percent
of industrial process water.
Toxic waste sites have and will continue to contaminate
ground water, sometimes irreversibly. In those instances where
ground water can in fact be remediated, the cost of remediation
usually will far exceed the costs of prevention.
According to EPA, 85 percent of Superfund sites have
ground-water contamination. At more than 90 percent of NPL
sites, one or more operable ground water well is located within
1 mile of the site, and at 82 percent of NPL sites ground water
is withdrawn for drinking purposes within 3 miles of the site.
Existing drinking water wells were either contaminated or
threatened by continued plume migration at 499 sites. At at
least 359 of these sites, drinking water wells have been shut
down due to contamination. In testimony submitted to this
Committee, the American Water Works Association noted that
``Increasingly, public water suppliers throughout the country
are closing down wells due to pollution. The most recent highly
publicized case is in San Bernardino, California, where some of
the city wells had to be closed because of ammonium perchlorate
contamination . . . .''
The potential impacts of ground water contamination go
beyond contamination of the aquifer that is initially impacted.
Ground water is frequently connected to surface water or to
other aquifers, or to ecologically sensitive environments such
as wetlands that could be impaired by ground water
contamination. In addition, contamination can impair other uses
such as agricultural irrigation. And in the arid west where
water is scarce, failure to adequately clean up contaminated
ground water and to protect uncontaminated ground water could
result in an irretrievable loss of the resource.
As demonstrated by cleanups at Superfund sites to date,
restoration is possible. According to EPA, as of 1997,
Superfund actions have accomplished significant restoration of
ground water at 119 out of 173 sites (69 percent) where a
ground-water remedy has been in place for more than 2 years,
and at an additional 91 sites, Superfund actions have prevented
water supplies from becoming contaminated.
We fear that a variety of provisions of S. 8, individually
and cumulatively, will result in inadequate cleanup of
contaminated ground water and contamination of clean ground
water, including ground water that may be used for drinking
water. In addition to the provisions discussed earlier, those
discussed below contribute to these concerns.
A. Inadequate Cleanup of Contaminated Ground Water. Our
principal concerns are two. First, that contaminated ground
water could be written off as a potential drinking water
source, and therefore be cleaned up to less protective levels,
even where it potentially could have been used for drinking
water. Second, where ground water is not reasonably anticipated
to be used in the future for drinking water, S. 8 fails to
ensure that it will be restored to other potential beneficial
uses. These concerns are addressed in turn below.
Two provisions give rise to our conclusion that S. 8 would
result in inadequate cleanup of potential drinking water
sources. First, S. 8 provides that unless technically
impracticable, contaminated ground water for which the
``current or reasonably anticipated future use'' is drinking
water shall be restored to a condition suitable for such use
(section 121(b)(2)(C)(i)). We object to use of the standard
``current or reasonably anticipated future use'' in connection
with ground water. (Although this discussion focuses on use of
this phrase in one provision, for the reasons discussed here we
also object to the use of the phrase throughout the title.) The
better standard would be whether drinking water is a
``potential beneficial use.''
The difference is more than linguistic. Determining the
reasonably anticipated future use involves projections as to
future need for the water as drinking water, which involves
speculation as to future population trends and weather
conditions, among other things. Our ability to anticipate these
needs and conditions 20 or 50 or 100 years from now is
imperfect, at best.
We believe that ground water is a valuable and limited
resource that should be protected regardless of our expectation
today of its future use. Therefore, whenever ground water could
potentially be a drinking water source, it should be restored
and preserved for that beneficial use. S. 8 would instead allow
for cleanup to a lesser standard, which would preclude its use
as drinking water, based on speculative projections of future
needs and uses.
Second, S. 8 writes off potential drinking water sources
through an overly broad definition of the phrase ``water that
is not suitable for drinking water.'' Contaminated ground water
that is not suitable for beneficial use as drinking water,
unless technically impracticable, is required to ``attain a
standard that is protective for the current or reasonably
anticipated future uses'' (section 121(b)(2)(C)(vi)). In
defining which water is not suitable for use as drinking water,
S. 8 provides, for example, that ``ground water that is not
suitable for use as drinking water because of . . . naturally
occurring conditions . . . shall not be considered as suitable
for beneficial use as drinking water'' (section 121(b)(2)(F)).
Due to the circularity, breadth, and lack of specificity of
this definition, it could exclude from the universe of
potential drinking water sources any water that has been
contaminated by ``naturally occurring conditions'' that someone
determines renders it unsuitable for use as drinking water. It
is unclear who makes this determination, what criteria guide
the determination, and the nature of the naturally occurring
conditions that may justify ruling out ground water as a
potential source of drinking water. As a representative of the
Association of Metropolitan Water Agencies testified:
The proposal allows the existence of naturally
occurring contaminants in groundwater to preclude its
designation as a drinking water source, thus getting
around the cleanup of contaminants that are not
naturally occurring in the aquifer. AMWA believes
naturally occurring contamination should not be used as
a sole factor in determining the suitability of
groundwater as a drinking water source.
Current EPA policy is to use a concentration of greater
than 10,000 mg/l total dissolved solids (TDS) in defining
ground water that would not be considered suitable for drinking
water. Under S. 8, the presence of a much lower concentration
of TDS, or some other naturally occurring condition, could
preclude its cleanup to levels suitable for use as drinking
water, even where ground water that might not currently be used
as drinking water could be economically treated and an
important source of drinking water. Under this provision, a
potential drinking water source could be permanently written
off as a future drinking water source, through a decision today
to inadequately clean it up.
In addition, S. 8 fails to ensure that water that is not
anticipated for use as drinking water will be cleaned up to
other beneficial uses. If water is not suitable for use as
drinking water, the bill requires that it attain levels
suitable to other beneficial uses. However, the bill is silent
as to cleanup of water that is suitable for use as drinking
water but for which drinking water is not an anticipated future
use. While this gap may be inadvertent, it is nonetheless
significant: it highlights the problem with use of the
``anticipated future use'' standard in connection with ground
water. If, based on our imperfect ability to predict future
needs, we determine that water that is suitable for use as
drinking water is not reasonably anticipated to be used as
such, then S. 8 would seem to exempt that source from cleanup
to standards suitable for drinking water or for any other
beneficial use. This would squander future generations'
resources because of our imperfect predictions of what they
will want or need.
B. Contamination of Clean Ground and Surface Water. One of
our strongest objections to S. 8 is its failure to prevent
contamination of clean water sources. Although Superfund is
generally considered a remedial statute, it also serves a
preventive function. To fulfill the statutory mandate to
protect human health and the environment necessitates control
and prevention of contaminant migration. As stated in the NCP,
``when restoration of ground water to beneficial use is not
practicable, EPA expects to prevent further migration of the
plume, prevent exposure to the contaminated ground water, and
evaluate further risk reduction.'' The American Water Works
Association testified that ``at sites in which it has been
determined that it is not technically practical to clean up
groundwater as a part of remediation for the site, permanent
measures must be implemented to prevent the contaminant [sic]
of adjacent uncontaminated groundwater.'' Provisions discussed
above (i.e., preference for treatment, institutional controls)
contribute to the failure of S. 8 adequately to ensure that
migration of contaminated water does not cause contamination of
currently clean water. The provisions discussed below compound
the problem.
S. 8's exceptions to the general ``requirement'' to protect
uncontaminated water inappropriately compromise the likelihood
of actually keeping clean water clean. S. 8 provides that ``a
remedial action shall seek to protect uncontaminated ground
water that is suitable for use as drinking water for such
beneficial use unless it is technically impracticable to do
so'' (section 121(b)(2)(B)).
At markup, Senators Boxer, Moynihan and Wyden offered an
amendment to strike this provision and replace it with the
following (below is the amendment as modified by Senator Boxer
during markup):
A remedial action shall protect uncontaminated ground
water and surface water unless technically infeasible
or limited migration of contamination is necessary to
facilitate restoration of ground water to beneficial
use.
We strenuously oppose the provision in S. 8, and support
the Boxer/Moynihan/Wyden amendment. The amendment differs from
S. 8 in several significant respects.
First, the amendment strikes the phrase ``seek to.'' This
phrase makes the difference between an aspiration and a
requirement. We believe that protection of clean water should
be an outright requirement, not just something that one should
seek to accomplish.
Second, S. 8 would protect uncontaminated ground water only
to the extent that it is suitable for use as drinking water.
The amendment would require protection regardless of the
potential beneficial use of uncontaminated ground water. For
example, it may not be suitable for drinking water but could be
used as industrial process water or for agricultural purposes
or for feeding wetlands.
Third, while S. 8 refers only to uncontaminated ground
water, the protections under the amendment also apply to
uncontaminated surface water.
Fourth, the amendment strikes the exception for ``technical
impracticability,'' and replaces it with two more narrowly
defined instances in which migration may be allowed: (1) where
protection of uncontaminated ground water and surface water is
technically infeasible, or (2) where limited migration of
contamination is necessary to facilitate restoration of ground
water to beneficial use.
The phrase ``technical impracticability'' refers to both
engineering feasibility and reliability and inordinate costs.
We oppose this use of a cost test for determining whether to
allow uncontaminated ground water to become contaminated. Cost
does, however, play a role in selecting remedies under current
law and should continue to under any reauthorized program.
Under current law, remedies have to meet the requirement of
section 121(a) to be cost-effective. This standard is used in
choosing among alternative remedies that meet the other
statutory requirements. Hence, cost-effectiveness should be
considered in choosing between alternative remediation methods
that also protect uncontaminated ground water. However, cost
should not be a factor in deciding whether clean water should
stay clean. The technical infeasibility standard reflects the
high value of water and the much greater cost to clean water
that has become contaminated, compared to the cost of
protecting it before it becomes contaminated.
For example, some contaminants are highly mobile and toxic.
According to EPA, a 10 gallon bucket of trichlorethylene (TCE)
can migrate substantial distances in a matter of days, and has
the potential to contaminate 800 million gallons of water at
levels two times higher than drinking water standards. This
corresponds to a plume approximately 1 mile long, 1000 feet
wide and 50 feet deep. Subsurface pathways for contaminant
migration can be complex and difficult or impossible to
remediate; and, monitoring systems can fail to detect releases.
Moreover, failure to prevent migration can create
conditions that are orders of magnitude more costly to address
than would be preventing migration in the first place. For
example, at the Newmark Groundwater Contamination site in
Southern California an 8-square-mile plume is threatening
hundreds of municipal drinking water wells serving over half-
million people. EPA is spending $20 million dollars to stop the
spread of contamination. By stopping the spread of this
contamination, nearly 100 wells will be protected, saving over
$200 million in total potential wellhead treatment costs.
We are not suggesting that clean ground water must be kept
clean even where to do so is impossible, or where limited
migration is necessary to facilitate the restoration of ground
water. That is why Senator Boxer modified her amendment at
markup to add the exception for technical infeasibility. And
the amendment recognizes that limited migration may be
necessary to facilitate restoration of ground water to
beneficial use, and allows for it in that circumstance.
Creation of an additional exception based on inordinate cost
fails to provide the necessary assurance that our clean water
will remain clean, and that we may avoid potentially incurring
even greater costs to address contamination of previously clean
water.
Additional provisions of S. 8 that would compromise the
protection of clean ground and surface water allow remedies to
rely too heavily on natural attenuation. S. 8 states that
decisions regarding remediation of contaminated ground water
must take into account ``any attenuation or biodegradation that
would occur if no remedial action were taken'' (section
121(b)(2)(A)(iii)(II)). This provision elevates natural
attenuation, by requiring that it serve as a standard against
which all potential remedies be evaluated. The bill further
provides that ``monitored natural attenuation may be used as an
element of a remedial action for contaminated ground water''
(section 121(b)(2)(D)). Both of these provisions fail to
include limitations on the use of natural attenuation that are
necessary to ensure that it would not be selected in
circumstances where it would not be suitable.
Current EPA policy recognizes that limited natural
attenuation may be appropriate in certain narrow circumstances:
where limited migration will help the aquifer to recover on its
own through a natural degradation process, and there would not
be significant contaminant migration or unacceptable impacts to
receptors. EPA's monitored natural attenuation policy provides
that ``monitored natural attenuation is an appropriate
remediation method only where its use will be protective of
human health and the environment and it will be capable of
achieving site-specific remediation objectives within a time
frame that is reasonable compared to other alternatives.''
Under S. 8, natural attenuation could potentially be used even
where natural degradation processes are not occurring, the
plume is not stable, or cleanup standards would not be met in a
time frame that is reasonable compared to other alternatives.
Unless appropriately narrowed, the bill could allow clean water
to become contaminated under the guise of ``natural
attenuation.''
A third instance in which S. 8 would not adequately protect
uncontaminated ground water, and would be inconsistent with
current EPA guidance, arises in the technical impracticability
waiver. In particular, the waiver fails to include two critical
conditions: ``a requirement to contain and reduce sources of
pollution that cannot be eliminated entirely and may continue
to release pollutants to ground or surface water, and a
requirement to contain the dissolved plume'' (testimony of
Administrator Browner at hearing September 4, 1997). These two
conditions are in EPA's current ground water policy. Without
these conditions, the waiver threatens to allow the further
spread of contamination over time.
The importance of these two conditions has been recognized
by a panel of experts in the report of the National Research
Council, Alternatives for Ground Water Cleanup:
Ground water contamination problems may become
increasingly complex with the passage of time because
of the potential for contaminants to migrate and
accumulate in less accessible zones. Measures to remove
contaminants from zones where the release occurred and
to contain contaminants that cannot be removed should
be taken as soon as possible after the contamination
occurs.
At [sites where cleanup will most likely be infeasible
with current technology], the plume of dissolved
contaminants should be cleaned up, contaminant mass
should be removed from source areas to the extent
practicable, and remaining contaminant sources should
be contained.
The Bill Provides for Inappropriate Consideration of Cost in Cleanup
Decisions
Cost can be an appropriate consideration with respect to
Superfund cleanups. For example, under current law, remedies
are required to be cost-effective. That standard is also in S.
8 and in the Substitute. However, under current law, remedial
alternatives must first be determined to meet cleanup standards
and protect human health and the environment, and only then is
cost-effectiveness considered, in connection with evaluating
different technologies. Under the NCP, a remedial alternative
is considered cost-effective if the cost is proportional to its
overall effectiveness in achieving protection of human health
and the environment.
We support appropriate measures to reduce costs. Several of
the reforms that we support would reduce unnecessary costs of
cleanup. Examples include streamlining remedy selection through
use of presumptive remedies, and providing for consideration of
future land use in selection of remedial actions. However, we
simply cannot condone use of a cost test that could sacrifice
protection of human health and the environment or unnecessarily
inject burdensome and time consuming new requirements into the
remedy selection process.
We have previously discussed provisions in S. 8 which could
promote remedies that are less protective and less expensive,
including: the extremely narrow preference for treatment
(containment remedies are cheaper than treatment), the
elimination of a point of departure in the risk range, and the
expansion of the technical impracticability waiver to allow
waivers based on consideration of cost of risk based standards
and of the requirement to prevent contamination of clean ground
water.
Several additional provisions, some of which are discussed
below, would allow cost to play an inappropriate role.
First, the so-called fund-balancing waiver. Under current
law this waiver is available only when the cleanup is funded
``solely'' by the Superfund. The intent of the fund-balancing
waiver was to excuse compliance with applicable standards only
when the Fund was financing the entire remedial action, and
compliance with these standards would deplete the Fund for use
at other sites where there were no viable PRPs. S. 8 would
change this waiver in one significant respect: that the waiver
would apply more broadly, in instances where the remedy is
``predominantly'' funded by the Superfund. This creates a
potentially huge loophole in the requirement that remedies meet
applicable standards: in view of the liberal use of orphan
funding under S. 8, a large number of sites would receive at
least some funding from the Superfund. And, in many instances
funding could be ``predominantly'' from the Superfund.
We cannot justify allowing otherwise applicable standards
to be abandoned based on the fact that the Superfund may be
paying 51 percent or more of the cleanup. Moreover, under S. 8
it is not unlikely that at the very same sites where cleanup
requirements have been compromised based on cost, PRPs would
receive reimbursement checks from the Superfund.
Second, the new requirement that remedies meet an undefined
requirement to be ``cost reasonable.'' Under current law
remedies are required to be cost-effective. This requirement is
maintained in S. 8. But S. 8 compounds any cost analysis with a
second requirement that remedies be ``cost reasonable.'' The
bill neither defines this new term nor explains the
interrelation between these two cost standards. \8\
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\8\ Contrary to the suggestion by the Majority, the reference, in a
document attached to a memo concerning the remedy review board, to the
reasonableness of cost estimates does not support S.8's new cost
reasonableness balancing factor. That document listed a number of
questions that the remedy review board may consider. Among them is the
question: ``Are the cost estimates reasonable?'' Significantly, it does
not ask ``are the costs reasonable?'' According to EPA, the question
refers to the accuracy of the estimated costs of the remedy, not to the
reasonableness of the remedy cost.
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In addition, we are concerned that ``cost-reasonable''
could be interpreted to require a cost-benefit analysis. A
cost-benefit analysis would lead to an additional and
unnecessary test that would needlessly complicate the remedy
selection process. It would require an additional balancing of
costs and benefits, before balancing of the remedy selection
factors. In addition, cost-benefit analysis tends to undervalue
those benefits that are difficult to quantify, such as benefits
to future generations.
Finally, S. 8 liberally allows waivers based on technical
impracticability. Some of the instances where this waiver is
available have already been addressed (i.e., waiver of risk
based standards, waiver of requirement to protect
uncontaminated ground water). The bill further elevates
technical impracticability by authorizing waivers of any and
all of the remedy selection rules based on this standard.
Section 121(b)(5), the fifth of five remedy selection rules,
allows waivers of any of the other four rules. These include
rules relating to anticipated future use of land and water,
ground water rules (such as requirements for long-term
monitoring, requirements for alternate water supply, point-of-
entry, or point-of-use treatment to ensure there is no
ingestion of contaminated water), and the meager preference for
treatment and provisions regarding institutional controls. This
overarching technical impracticability waiver raises, among
others, concern that there is yet another cost test, so that
remedies will have to pass three cost-based hurdles: that they
be cost-effective, cost-reasonable, and not inordinately
costly. As noted earlier, we believe that the technical
impracticability waiver should be limited to applicable cleanup
standards, similar to the scope of the waivers in current law.
The Bill's Remedy Provisions Will Divert Resources Away From and Delay
Cleanup
The remedy title imposes unnecessary and burdensome new
requirements that will divert resources away from and delay
cleanup. We fear that the provisions in the following three
areas, among others, would impair the ability of EPA and States
to select remedies and clean up sites in an efficient and
timely manner: reopening RODs; the remedy review board; and
risk assessment and communication. \9\
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\9\ We note one improvement to the lead in soil amendment (Title
VIII of S.8) offered during markup that would help avoid delay. We are
pleased that the sponsors of the amendment agreed to drop language that
could have limited EPA's ability to act until a regulation has been
promulgated, and believe that this change will further our goal of
minimizing or avoiding any delay. We remain concerned, however with the
transfer of EPA decision-making to an outside entity which is not
accountable to the President, and in accordance with the understanding
reached at markup, we are reviewing whether it raises constitutional
questions.
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The requirements in S. 8 for revisiting past cleanup
decisions would require significantly more agency resources
than under EPA's current policy and practice, \10\ and create
new potential for cleanup delay. Many RODs are issued only
after years of study and controversy. Throwing potentially
hundreds of seemingly resolved decisions back into dispute
would tie up resources that could be better used addressing
other sites, and could delay cleanup at the site at issue, and
upset the expectations of community members regarding cleanup
of sites that impact their lives. Several aspects of the
provision give rise to these concerns.
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\10\ Administrator Browner testified that EPA's reform relating to
remedy updates ``is yielding $340 million in cost savings in fiscal
year 1996 and another $280 million estimated to date for fiscal year
1997.''
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First, although the bill leaves EPA discretion as to
whether a particular remedy should be revised, it does mandate
that EPA conduct a detailed analysis of each petition against
eight factors, to set priorities as to which petitions it will
accept (section 136(b)(3) and (4)). \11\ Administrator Browner
testified that the resources required for these analyses would
be substantial. Second, it is not clear that PRPs are required
to continue implementing a remedy pending a decision on a
petition. PRPs implementing remedies will have a strong
incentive to argue that they should not have to spend
additional money implementing the current remedy, since that
remedy will change if the petition is granted. Therefore,
absence of an explicit requirement to continue remedies during
consideration of a petition would risk delay. Third, it is not
clear that PRPs would be barred from bringing a lawsuit to
challenge an adverse decision on their petition.
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\11\ A potentially large number of petitions will arrive in a short
time frame, since a petition may be filed by one PRP implementing the
remedy, regardless of how many PRPs are also involved, and in view of
the 1 year deadline for submitting petitions. We have not been provided
any estimate by the proponents of this provision as to the number of
remedies that would be eligible for reconsideration.
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Another provision that would drain significant resources is
the remedy review board. As noted earlier, we support
appropriate codification of EPA's remedy review board reform,
and included such a provision in our Substitute. But S. 8 would
require review of an arbitrary number of sites--one-third of
remedies selected in a year, which would amount to review of
more than 50 per year--regardless of whether review of so large
a number of remedies is feasible, warranted or even necessary.
This requirement would add yet another significant resource
demand.
We also are concerned that provisions on risk assessment
and communication will require analyses that are unnecessary or
ill suited for the purpose for which they would be used. For
example, as Administrator Browner testified, ``the requirement
for `central, upper-bound and lower bound estimates' of risk
for reach facility are inappropriate for site-specific risk
assessments, but rather apply to chemical-specific risk
assessments like those found in IRIS or to be performed under
the Safe Drinking Water Act.'' According to EPA, central and
lower-bound estimates only serve to illustrate how wide the
range of toxicity may be, by estimating the two extremes;
however, these values cannot be considered protective of public
health. \12\ Moreover, it is unclear whether this provision is
intended to reject the current approach under Superfund of
relying on the reasonable maximum estimate of exposure (between
a central and upper-bound estimate) that neither minimizes nor
exaggerates risks posed by contaminants at the site, and
considers sensitive sub-populations. According to EPA, this is
the value that is of greatest significance to the public. We
would be concerned with a requirement that would abandon this
approach and compromise the transparency of risk communication
to the public.
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\12\ In addition, these measures are not applicable to
noncarcinogenic chemicals because the methodology for calculating those
toxicity values is different.
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LIABILITY
Introduction
According to EPA, as of late October, 1997, cleanup
construction was underway or had been completed at 89 percent
(1200 of 1353) of the sites on the NPL. As of late February,
1997, cleanup construction had been completed at 509 of these
sites. The vast majority of cleanups at Superfund sites are
conducted or funded by PRPs, under judicial consent decrees or
administrative orders. Specifically, PRPs perform between 70
and 75 percent of long-term cleanups at non-Federally owned NPL
sites.
The success of Superfund in holding those who had a role in
creating hazardous waste sites responsible for their cleanup
and avoiding cleanup delay from litigation is directly
attributable to Superfund's liability scheme, the prohibition
on pre-enforcement judicial review, and EPA's ``enforcement
first'' policy. The bar on preenforcement review prevents the
cleanup delay that would result if PRPs were allowed to
challenge remedies in court in advance of any cleanup. Under
the enforcement first policy, which EPA instituted in 1989, the
Agency seeks to require PRPs to conduct cleanups, rather than
EPA financing them through the Superfund and then suing to
recover its costs. This policy reflects the reality that the
Fund is limited and should be preserved for sites at which
there are no viable PRPs. In view of the limited sums available
in the Superfund, the only alternatives to a system that
requires viable PRPs to conduct cleanups would be for the costs
of cleanup to borne by the general taxpayer, or for sites not
to be cleaned up, neither of which would be acceptable.
Unfortunately, the liability title of S. 8 would set back,
rather than build on, the strengths and successes of the
current Superfund program in cleaning up hazardous waste sites.
Our principal objections to the liability provisions of S. 8
are --
LIt does not go far enough in reducing litigation
and other transaction costs, particularly for small parties
such as municipalities, small businesses and other small waste
contributors.
LIn several instances the bill actually would
create new opportunities for litigation and increase
transaction costs, often at the risk of delaying cleanup.
LThrough overly broad exemptions and PRP
entitlements to reimbursement from the Superfund, S. 8 would
shift to the Superfund responsibility for cleanup, rather than
holding PRPs responsible for cleaning up conditions that they
created and thereby conserving Superfund dollars for cleanups
at sites where there are no viable PRPs.
The Bill Keeps Municipalities, Small Businesses, and Contributors of
Small Amounts of Waste Trapped in Superfund's Liability Net
Notwithstanding the seemingly widespread recognition that
any Superfund reform bill needs to provide small parties (whose
transaction costs generally dwarf any amounts they could or
should contribute to cleanup) relief from Superfund liability,
the nature and scope of that relief have proven surprisingly
controversial. As discussed below, S. 8 fails to provide
adequate relief to small businesses, municipalities and other
contributors of low volume or low toxicity waste.
Although S. 8's various liability exemptions and
limitations for these parties each raises unique concerns,
there is one significant defect that they have in common: the
failure to provide these parties any relief from claims for
costs incurred prior to enactment of S. 8. Hence, S. 8 only
partially lets these parties out. It says that small
contributors of municipal solid waste (MSW), contributors of de
micromis amounts of hazardous waste and small businesses cannot
be sued for money spent after S. 8 is enacted into law; and it
says that there are caps on the liability of larger
contributors of MSW and municipal owners and operators of
landfills--for some of the claims against them. That's a start.
But it stops short of giving meaningful relief to many
municipalities, contributors of MSW and small PRPs.
Where large non-exempt PRPs spent money studying or
cleaning up a site before the enactment of S. 8, they still can
sue these contributors, and continue pending lawsuits, to
recover some of those costs, which in many instances are very
large sums. For a small nonprofit organization that sent only
municipal waste to a site and is facing a lawsuit for tens of
thousands of dollars, it is little consolation that it is being
sued only for pre-enactment costs. In addition to paying any
judgment to resolve the claim, it still has to pay lawyers to
defend or settle these claims. And even though the individual
contributions of waste by these parties is small and judgments
against them individually would likely be relatively small,
PRPs that are large contributors can and do pursue them in
contribution actions. For example, in testimony before this
Committee, Administrator Browner described the litigation at
the Keystone site in Pennsylvania as follows:
First are the large owner-operators, major industrial
generators. Those are the ones that EPA went to and
asked for them to contribute to the cleanup costs.
There were 11 at this site. Those 11, unfortunately,
did turn around and seek contribution for cleanup costs
from 168 other parties; those other 168 turned around
and sought contribution from 589.
In fact, the well-publicized case of Barbara Williams, one
of the 589 fourth-party defendants at the Keystone site, would
not be resolved by S. 8. Even though Ms. Williams operates a
small business and sent only municipal solid waste to the site,
under S. 8 she would remain liable for claims by other PRPs for
cleanup costs incurred prior to enactment of S. 8. Hers is not
a unique situation, since Keystone is just one of many sites
where PRPs have entered into cleanup agreements and have
potential claims for unreimbursed pre-enactment costs. Nor is
it hypothetical: at Keystone, as of October of 1997, the United
States had incurred costs in excess of $6.4 million. These
costs have not yet been recovered. Municipalities, who face
similar claims, also raised concerns. James P. Perron, Mayor of
Elkhart, Indiana, testified on behalf of the Conference of
Mayors regarding his concern with S. 8's limits on relief for
municipalities: ``We are concerned, however, that the bill does
not provide generators and transporters of municipal solid
waste protection from third-party contribution lawsuits, for
cleanup costs incurred prior to the date of enactment at co-
disposal sites.''
Some suggest that extending these liability exemptions and
limitations to pre-enactment costs would unfairly deprive non-
exempt PRPs of their potential contribution claims against
these small parties. We do not believe that this warrants
denying relief to small parties. Our rationale differs with
respect to different categories of PRPs.
With respect to de micromis contributors and small
contributors of MSW, we disagree that the exemptions would
unfairly deprive other PRPs of any contribution claims. The
contributions by the PRPs covered by these exemptions are
``truly tiny,'' in the words of Administrator Browner. For
example, at the Keystone site, parties EPA determined qualified
for de micromis settlement offers comprise almost 50 percent of
the total number of parties named as defendants at the site.
Yet, collectively, they sent less than 5 percent of the total
waste volume to the site. It is difficult to conceive that
larger PRPs have any legitimate expectation of obtaining a
judgment for significant sums from PRPs that sent two drums of
waste (the cutoff for the de micromis exemption's threshold of
110 gallons or 200 pounds), or from residential homeowners,
small businesses or small nonprofit organizations that sent
only municipal solid waste.
We recognize that the small business exemption presents a
significant issue that is not raised by the exemptions for de
micromis contributors of hazardous waste and small contributors
of MSW. That is, it is more likely that in some instances
larger PRPs may have agreed to a cleanup settlement based on a
well founded expectation that they could recover some of their
costs in contribution suits against some of the small
businesses covered by the exemption. But we believe that this
issue can be addressed in a manner that allows recovery of
costs in appropriate circumstances, and at the same time
affords small businesses some protection with respect to claims
for pre-enactment costs. Under the Substitute, small businesses
that were sued would have an opportunity to avoid litigation
and significant transaction costs by settling with EPA on the
basis of what they could afford. EPA, in turn, could pass any
sums recovered through settlements with the small businesses to
PRPs who had legitimate expectations of recovery against these
small businesses, to offset some of the cost of cleaning up the
site.
We believe that S. 8 tips the balance too far in the
direction of preserving the ability of large non-exempt PRPs to
sue small businesses for pre-enactment response costs. The
approach in the Substitute, in contrast, strikes a reasonable
balance between protecting small businesses from claims that
exceed their ability to pay and from the transaction costs
associated with defending a claim, and protecting any other
PRPs' legitimate expectations of recovery from those small
businesses.
A. Additional concerns with exemption for small
contributors of municipal solid waste. S. 8 creates an
incentive for large non-exempt PRPs to pursue residential
homeowners, small businesses and small nonprofit organizations
for information regarding their contributions of municipal
waste. It does so by shifting to the Superfund shares of
cleanup costs attributable to these parties. Since the amount
that the remaining PRPs have to pay is reduced by any sums that
are shifted to the Superfund, those remaining PRPs have every
incentive to track down PRPs whose shares may be shifted to the
Fund. An exemption does not insulate a PRP from transaction
costs incurred in response to discovery and information
requests, including in some instances the cost of hiring an
attorney.
For example, at the South 8th Street Superfund site in
Arkansas, which was part of EPA's pilot allocations project,
PRPs nominated approximately 2,000 parties as additional PRPs
at the site. The vast majority of these nominations were not
supported by deposition testimony, sworn statements, or any
other evidence specifically identifying the nominee as a person
that arranged for the disposal of hazardous substances at the
site. Rather, these parties were nominated based on their
having been listed in the Yellow Pages at the time the facility
was in operation, and the nominating PRPs' theory that those
parties therefore were likely to have generated waste oil that
was sent to the site.
The better approach is that taken in our Substitute, which
is the same as the approach that S. 8 takes with respect to de
micromis parties: That is, to treat wastes contributed by small
contributors of MSW as zero shares, since the amounts they
contributed are so small and the toxicity so low. The situation
of small contributors of municipal waste is comparable to that
of contributors of de micromis amounts of waste, since in both
cases whatever they could contribute to the cleanup would not
be justified by the resources needed to calculate their shares.
B. Additional Concerns with Liability Limitations for
Larger Generators and Transporters of Municipal Waste. The 10
percent liability cap under section 107(t)(1) (for generators
and transporters of MSW) would impose further unnecessary
transaction costs on municipalities and other contributors of
municipal waste. We believe that these parties should have a
choice, as in the Substitute, between the 10 percent cap and
settling on the basis of a dollar per ton cost. The later
option would give them the opportunity to resolve their
liability earlier in the process and avoid transaction costs.
We recognize that the bill we supported in the 103d Congress
also capped liability of MSW contributors at 10 percent. But,
since the 103d Congress, an alternative approach developed by
EPA has gained considerable support from municipalities. On
February 5, 1998, after public notice and comment, EPA issued a
policy for settling claims against municipalities and
contributors of municipal solid waste at NPL co-disposal
landfill sites. The policy provides that EPA will offer to
settle with generators and transporters of municipal waste for
an amount calculated by multiplying the number of tons of MSW
contributed by the PRP by $5.30. The $5.30 per ton figure was
calculated based on estimates of the per unit costs of closure
and post-closure activities at a representative landfill
regulated under subtitle D of the Resource Conservation and
Recovery Act. Senator Lautenberg introduced legislation earlier
this Congress, S. 1497, which would codify a per ton settlement
approach.
This approach has many advantages, including that it
provides greater certainty, allows for early expedited
settlements without the need for allocation, reduces
transaction costs, and is based on an estimate of actual costs
of addressing MSW. The EPA policy has attracted widespread
support from municipalities, including from the National
Association of Counties, National League of Cities, National
School Boards Association, and International City/County
Management Association. In a letter to EPA dated February 23,
1998, these organizations stated that: ``We support the . . .
unit cost of $5.30 as the maximum settlement amount for
generators/transporters of MSW/MSS. The amounts are equitable
and are in line with the true costs of closure/post closure
costs of municipal co-disposal landfills, as well as the
historical settlements of local governments at sites similar to
those included in the policy.'' These organizations further
noted that the policy would allow municipalities to avoid the
current financial burdens of defending against CERCLA lawsuits.
In sum, if Congress is going to make a policy decision to
finally address the problem of small parties being dragged into
Superfund cases, then reform legislation should reflect a full
commitment to that policy. S. 8, through its preservation of
claims for pre-enactment costs, creation of incentives to
pursue small parties through information requests, and failure
to provide an expedited procedure to resolve claims against
contributors of MSW, falls short.
The Bill Promotes Unnecessary Litigation and Transaction Costs
We understand that the sponsors of S. 8 share our desire to
reduce litigation under CERCLA. Some of the provisions in S. 8
reflect an effort to accomplish that goal. However, in many
instances the bill actually would promote litigation and
increase transaction costs, diverting resources away from
cleanup. Below are further examples of provisions that run
counter to the goal of reducing litigation and transaction
costs under CERCLA.
A. Requires Settled Cases to be Reopened. One of our most
significant concerns with S. 8 is its mandate to reopen consent
decrees that previously were approved and entered by courts.
Section 137(b) of the bill provides that ``[t]he Administrator
shall conduct the allocation process under this section for
each mandatory allocation facility.'' A ``mandatory allocation
facility'' is defined under section 137(a)(5) as an NPL
facility at which there are 2 or more PRPs (including exempt
PRPs), if at least 1 is viable and not exempt, ``for which the
potentially responsible parties demonstrate that the response
costs to be incurred after the date of enactment of this Act
will exceed $1,000,000.'' Section 137(b)(5) contains an
extremely narrow exclusion which removes from the universe of
mandatory allocation facilities any ``facility for which there
was in effect as of the date of enactment of this section a
settlement or order that determines the liability and allocated
shares of all potentially responsible parties'' at the site. As
discussed below, this exception would exclude few if any sites,
and a significant number of sites also would not be screened
out under another condition discussed below. As a result,
allocations and orphan funding are mandatory at a large number
of sites that already are being cleaned up under consent
decrees or orders.
This means that the government and PRPs are required to
collect and present detailed evidence to an allocator regarding
the nature and extent of each settling party's connection to
the site. In other words, the very factual disputes that a
prior settlement was designed to avoid would be litigated
before the allocator, for the purpose of reimbursing
responsible parties for response costs that they previously
agreed to pay.
This provision has been widely criticized as, for example,
giving ``polluters who already agreed to carry out cleanups, an
unwarranted windfall'' (letter dated March 23, 1998, to members
of the Environment and Public Works Committee from six national
environmental organizations). Administrator Browner noted that
of ``particular concern are provisions that . . . reopen
hundreds of final consent decrees and provide Federal payments
to parties that created toxic waste sites'' (letter dated March
24, 1998, from Carol Browner to Senator Baucus). Some of the
problems associated with reopening consent decrees are captured
in an excerpt from a letter from the Department of Justice:
These prior settlements were intended to ensure that
sites were cleaned up, legal and factual disputes with
the settling PRPs were resolved, and the cost and
burden of discovery and trial were avoided. S. 8 would
undo many of these benefits by reopening these disputes
for litigation in an elaborate allocation process, for
the purpose of reimbursing PRPs for cleanup costs that
they previously committed to pay. Inevitably, legal and
technical resources that should be devoted to obtaining
new settlements for new cleanups would be diverted to
this massive PRP reimbursement project, resulting in
more lawyer time, fewer new consent decrees, and a
slower pace of cleanup. (Letter dated March 23, 1997,
from Ann Harkins, Acting Assistant Attorney General, to
Chairman Chafee).
While reopening a settlement in any type of case could have
some disadvantages, these are exacerbated in large, complex,
multi-party cases such as those common under CERCLA. The
heightened impact is attributable in part to the large number
of settlements (and parties) potentially implicated, and the
difficulty and sheer complexity of conducting allocations.
Indeed, the mandate to reopen past settlements would eliminate
much of the intended and expected benefits of settlement.
Sizable resources would be consumed in revisiting old
settlements, and resources would be diverted from new cleanups
to settled cases. As stated by State Attorneys General, ``any
settlement negotiation, whether it is the initial negotiation
or a reopener, is extremely resource intensive. Given our
limited budgets, a reallocation of time to old settlements at
someone else's direction will clearly result in fewer new
settlements, and thus fewer cleanups'' (letter dated March 25,
1998, to Chairman Chafee from Peter Verniero, Attorney General
of New Jersey and Chair of the Environment Committee, and Hardy
Myers, Attorney General of Oregon, Chair and Vice Chair of the
Environment Committee, of the National Association of Attorneys
General, respectively). It is not unusual for Superfund
settlements to involve hundreds of parties, take significant
time and resources to negotiate, and involve cleanups worth
tens or hundreds of millions of dollars. \13\
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\13\ In addition to having to present its views during the
consideration of a settled case before an allocator, the United States
would maintain its broader role in the allocation as representative and
trustee of the Superfund Trust Fund.
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Regardless of one's views as to the merits of granting PRPs
further access to the Fund in connection with cases that had
been settled prior to enactment, the transaction costs alone
should give one pause. It would open wide the Superfund,
originally intended to pay for cleanup of abandoned sites, to
incalculable claims for PRP reimbursement at each of these
sites. The resource demands imposed by S. 8's settlement
reopener must be evaluated in context: sites where settlements
are being reopened are competing for resources with sites that
are not yet being cleaned up under consent decrees. According
to EPA there are nearly 350 sites currently on the NPL at which
there may in the future be settlements with PRPs for the
performance of remedial design or remedial action at a site.
And as more sites are added to the NPL (currently at a rate of
20-30 per year), the likely number of additional settlements
increases. The more personnel and other agency resources that
are devoted to revisiting settled cases, the less that are
available for moving new cases toward settlements under which
PRPs would clean them up. Mandating the reopening of
settlements would contribute to the cleanup delay that reform
legislation is supposed to eliminate. This simply is not a wise
use of our limited Fund resources.
S. 8 mandates allocations and orphan funding for post-
enactment costs in connection with cases that were settled
before February of 1998, so long as there is a request by two
or more settling PRPs and the settlement meets the following
criteria: \14\
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\14\ These same criteria are used in S.8 to screen sites being
cleaned up under administrative orders: if an administrative order has
been issued prior to February 1, 1998, and PRPs demonstrate that they
meet the cost thresholds, allocations and orphan funding are mandatory.
This provision is discussed later.
La settlement decree or order that was in
effect on the date of enactment of S. 8 did not
determine the liability and allocated shares of all
PRPs (sec. 137(b)(5));
LPRPs demonstrate that response costs to be
incurred after enactment of S. 8 in connection with a
settlement prior to February 1, 1998, will exceed
$1,000,000 (sec. 137(a)(5)(A)); and
La neutral third party determines, based on
information provided by PRPs, that the amount of the
orphan share of the response costs remaining to be
incurred for a settlement prior to February 1, 1998,
can reasonably be expected to amount to $500,000 or
more (sec. 137(b)(6)).
Although the proponents of this provision have not provided
us an estimate as to the number of consent decrees that would
meet these criteria, clearly they are intended to and would
reach a significant number of settled cases. The first
criterion--that a pre-enactment settlement did not determine
the liability and allocated shares of all PRPs--would screen
out few if any sites. Under section 122(d)(1)(B) of CERCLA,
settlements with the United States expressly preserve all
arguments concerning liability: they do not constitute
admissions of liability. In addition, if the settlement left
unresolved a potential claim against even one defunct PRP, then
under this criterion the case would be eligible for reopening,
an allocation, and mandatory access to orphan share funding.
Usually PRPs would be able to identify at least one PRP who was
not included in a settlement, if they considered it to be in
their interest to reopen the settlement and get orphan funding.
The second and third criterion would screen out some sites, but
a significant number would remain eligible for reopeners and
orphan funding. Moreover, significant resources would be
involved just in determining whether a site that is being
cleaned up under a consent decree meets the criteria for
mandatory allocations and orphan funding.
The resource demands of conducting allocations for settled
cases are exacerbated by the fact that, unlike sites that are
newly entering the consent decree negotiation process, all of
these past settlements will be eligible for allocations
immediately on the date of enactment of S. 8. In fact, there is
an incentive for PRPs to demand allocations quickly, before
more money is spent on cleanup, reducing sums that count toward
meeting the monetary thresholds, and to obtain an allocation
and rebate more quickly. Introducing this slug of cases into
the allocation system immediately on enactment could
significantly impair the ability of EPA to timely clean up
sites ready to begin remediation.
As noted above, under S. 8 if there is a request by two or
more settling PRPs for an allocation at a facility eligible for
a mandatory allocation, then an allocation is required. This
means that literally hundreds of settling PRPs can be dragged
into a resource intensive and time consuming process at the
behest of two outliers. In the course of presenting evidence,
PRPs will hash out many of the same issues that supposedly had
been resolved by the settlement. In some cases the issues were
actually litigated the first time around. In others, the
parties chose to avoid a contest by settling.
This time, there is no choice. Some parties may not want to
reopen a settlement. They have put it behind them, and figure
that any refund they would get through an allocation is
outweighed by the time and money they would have to spend to
participate in an allocation. That doesn't matter.
Certain provisions in S. 8 apparently are intended to
mitigate some of the adverse impacts of reopening consent
decrees. Unfortunately, these provisions would accomplish
little, if anything, toward that end. For example, S. 8
provides that allocations involving settled cases will be
performed for the sole purpose of determining the orphan share
(sec. 137(b)(6)(F)). Any safeguards created by this provision
are illusory. The exercise is fraught with complexity and
litigation bait.
In order to determine the orphan share at a site, the total
number of shares must be determined. And, to make that
determination, the allocator must determine the shares of prior
settling PRPs as well. Moreover, even if determining individual
shares of settling PRPs could be dispensed with for purposes of
ascertaining the orphan share, section 137(o) of S. 8 still
would require the allocator to determine the shares of each
settling PRP in order to determine its entitlement to
reimbursement. Determination of shares will require enormous
resources to wade through evidence on many issues, even though
it was to avoid litigation and discovery over these issues that
the parties entered into the settlement in the first place.
Garnering the evidence that the allocator will need to make
decisions can be exceedingly difficult and in some cases
impossible. It requires detailed factual information, which may
or may not still exist in old cases. Simply because EPA settled
a case, it cannot be assumed that the evidence is sitting in a
Federal archives someplace just waiting to be retrieved. In
many cases the evidence was never collected: the parties
instead concentrated their efforts on negotiating a settlement
agreement.
Finally, even after the allocator determines the respective
shares attributable to the orphan and to other PRPs, an
exceptionally difficult task still lies ahead: determining what
compromises were made by EPA and for what reasons they were
made. Any such determination generally would involve privileged
information. Although it may be impossible to determine,
information on past compromises is essential to avoid windfalls
to PRPs.
In the majority of settlements, EPA compromises its claim
in some respect, usually for a combination of reasons. These
reasons may include resource and strategy considerations that
relate to the strength of the case or the importance of the
legal issues involved, the existence of a large number of
defunct and insolvent PRPs, and an assessment of what it would
take to reach an acceptable settlement. Decisions to settle
CERCLA cases also may be influenced by a need for PRP resources
to conduct a cleanup, due to a lack of EPA resources to do so
or a need for those resources at a site where there are no
viable PRPs. Therefore, it is not at all uncommon for the
United States to forgive all or a portion of its claim for past
costs or future oversight costs, in exchange for an agreement
by PRPs to conduct future cleanup work.
Another instance where bill language cannot cure the
complex problems created by reopening consent decrees is the
provision that allocations involving settled cases must take
into account any monetary or nonmonetary compromises made by
EPA in the initial settlement (sec. 137(b)(6)(F)). We
appreciate this recognition that settling PRPs should not get
the benefit of the same compromise twice. Unfortunately, in
practice it would be very difficult and resource intensive to
actually prevent these windfalls. That is because of the
difficulty in unraveling old deals to ascertain what
compromises that the government may have made, and the reason
that they were made. It can be very difficult to determine how
much of a prior compromise, embodied in a consent decree,
represents costs that are eligible for orphan funding.
For example, EPA may say that its compromise of $1 million
reflected the share attributable to insolvent PRPs. Therefore,
the settling PRP should not be given orphan funding when the
settlement is reopened: to do so would give the PRP a windfall.
The settling PRP may say that EPA forgave its $1 million claim
for past costs not because of any insolvent PRPs, but because
there was a new issue of law in the case that EPA did not want
to litigate. Therefore, the PRP would argue to the allocator
that it is entitled to orphan share funding for the $1 million
share attributable to the insolvent PRP. The allocator would
have to decide.
Proponents of reopening consent decrees focus principally
on two arguments: fairness and reducing litigation. Neither one
would justify the consent decree reopener provision in S. 8. We
discuss them in turn below.
We are not persuaded that claims of unfairness of
settlements justify a mandate to reopen them. It is fair to let
settled cases lie. Just because we have created a new pot of
orphan share funding, PRPs who previously settled their
liability have no right or legitimate expectation of access to
it. After all, if we cut capital gains taxes, people who sold
their stock before the rates were cut don't have a legitimate
expectation that they should be able to get a refund. What's
done is done. Congress amends laws all the time and we do not
go back and unravel settlements that were concluded before the
change.
Proponents of the mandatory consent decree reopener
provision focus almost exclusively on the perceived unfairness
of holding settlors to their commitments, without any serious
consideration of the unfairness of reopening consent decrees to
others, including to many PRPs and to the public at large. We
disagree that it is unfair to hold PRPs to commitments that
they negotiated and voluntarily assumed through agreeing to a
consent decree. Moreover, the suggestion of unfairness is based
on a sweeping assumption that the terms of past consent decrees
are unfair. That assumption is unfounded.
Settlements reflect compromises on all sides. One of the
key factors in EPA offering to compromise is the existence of
insolvent or defunct PRPs in connection with a site. In fact,
in accordance with its 1996 orphan share policy, EPA has
routinely offered orphan share funding at eligible sites to
parties who will agree to a cleanup settlement, in the form of
forgiveness of claims for past costs or future oversight costs.
According to EPA, the Agency has made offers of orphan funding
under the policy estimated at more than $100 million in the
first 2 years of the policy. Even before the policy, EPA often
compromised its cost recovery claims to reach a settlement.
Hence, any assumption that orphan funding would be a new
opportunity with the passage of S. 8 and was unavailable
previously is unfounded: it is more like a second bite at the
apple. And reopening settlements could give windfalls to PRPs
if compromises that they benefitted from under the original
consent decree are not accounted for in re-assessing their
``shares.''
When PRPs elect to enter into settlements, they make a
judgment that it is in their interest to do so: it is not
unfair to hold them to that judgment. The decision whether to
settle probably included consideration of whether some costs
could be recovered from other parties. If the PRP entered the
settlement knowing that all nonsettling PRPs are either
insolvent or defunct, or too small to make meaningful
contributions, then the PRP never had any expectation that it
would recover its costs, and, for whatever reason, decided that
it was more advantageous to settle than not to settle. If, on
the other hand, a PRP enters a settlement with the intent of
suing nonsettling PRPs to recoup some of its costs, then it has
done so or can do so.
Moreover, before entering a consent decree as an order of
the court, a judge has to find that the settlement is fair,
reasonable and in the public interest. Any PRP who considers a
settlement unfair has the option of not settling, submitting
comments during the public comment period on the consent
decree, and even intervening in court for the purpose of
challenging entry of the decree. And PRPs would have previously
had an opportunity to comment on the proposed cleanup plan
before EPA issued its Record of Decision selecting the remedy.
In addition, the interests of any settling PRPs who do not
want to reopen a settlement must be considered. They may be
swept into an allocation at the request of two PRPs. Some
assert that everyone would want to reopen their settlement, in
order to benefit from reimbursements from the Fund for orphan
shares. That view ignores the fact that the transaction costs
may exceed any potential benefits to a PRP or its insurer.
Another significant category of persons that would be
prejudiced by reopening settlements is the public, including
communities located near superfund sites, the taxpaying public,
and future generations. They have a keen interest in judicious
use of the Superfund, so that it will be available at abandoned
sites where there are no PRPs to pay for a cleanup. We have
already illustrated the magnitude of the resources that would
be required to conduct an allocation in connection with even
one settled case. Even if payments of orphan funding were from
a separate account from cleanup money, that would not protect
resources--personnel and money--required to go through the
allocation process. Inevitably, the settled cases would divert
these resources away from yet unsettled cases. They would
create a massive bottleneck on the date of enactment that would
significantly delay response actions at sites that are not yet
undergoing cleanup.
That is not to say that in every single case it would
necessarily be inappropriate to conduct an allocation or for
EPA to offer orphan funding in connection with a site that is
subject to a consent decree. But the provision in S. 8 for
permissive allocations could be used in any appropriate case,
based on case by case considerations and the availability of
funding and other resources for revisiting past settlements. As
State Attorneys General observe in their March 25, 1998 letter,
``This problem [depletion of limited resources from reopening
consent decrees] can be avoided if we simply leave the law the
way it stands today, which allows EPA or a State agency to
determine whether the reopening of settlements is necessary in
order to achieve a better or less costly cleanup. We therefore
urge you to remove [consent decree reopeners] from S. 8.''
Proponents of this provision assert that reopening consent
decrees may expedite resolution of litigation by PRPs against
other PRPs, through the enticement of orphan funding. That
misses the point. Allocations with respect to these and other
claims addressed in past settlements would divert EPA resources
from cleanups at sites that are not yet being cleaned up. And
allocations in connection with past settlements would open up a
whole host of issues for resolution that are not raised by
third-party litigation. Other tools are available to facilitate
the resolution of third-party claims without drawing down
resources that could be better used to negotiate a settlement
at a site that is not yet being cleaned up, so that it might be
cleaned up.
The Majority asserts that reopening consent decrees and
providing orphan share funding is necessary in order to reduce
third-party litigation, particularly when it involves small
parties. We are in favor of reducing third-party litigation,
including when it involves small parties. We do not think that
mandating the reopening of consent decrees gets us there, for
three reasons.
First, defendants in third-party litigation are not jointly
and severally liable. As provided in section 113(f)(1) of
CERCLA, ``In resolving contribution claims, the court may
allocate response costs among liable parties using such
equitable factors as the court determines are appropriate.''
Second, arbitration and dispute resolution have always been
available as tools to resolve cases short of trial. They can be
used in third-party litigation too. So can allocation. Both S.
8 and the Substitute provide for ``permissive'' allocation,
that is, discretionary use of allocation in appropriate cases.
These third-party claims are eligible for permissive
allocation.
Third, small party interests simply are not what is driving
the consent decree reopener provision. As discussed above, the
way to protect small parties is through liability exemptions
and limitations that apply to claims for both past and future
costs. It is not to reopen settled cases, devote substantial
resources to allocations, and pay orphan funding to larger
nonexempt PRPs.
If small parties were exempt, then they would not be liable
in third-party cases for past or future costs. If they already
settled, then they are covered by contribution protection and
do not have to worry about being sued. Moreover, if they
already settled they are probably the least likely parties to
benefit from the consent decree reopeners in S. 8. That is due
to the fact that settlements between EPA and small parties
virtually always are ``cash outs.'' In other words, they make
payments, often in one lump sum within a specified number of
days after a consent decree has been entered, and then their
obligations are complete. They are not the ones spending money
over the course of years implementing a remedy and therefore
eligible for reimbursement under S. 8. Further, small
contributors that cash out typically are given more complete
covenants not to sue than are those performing the work. \15\
Therefore, they had an even greater expectation that the
settlement would put the case behind them, forever. S. 8 would
undermine that expectation. Hence, in all likelihood, small
entities that settled prior to enactment would not benefit, and
in fact could be harmed, by the reopeners.
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\15\ For example, the 1986 amendments to Superfund added a
provision (section 122(g)) to promote expedited final settlements with
contributors of low volume or low toxicity waste. Reopening settlements
with these parties would undermine the benefits of that provision.
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As the State Attorneys General caution: it ``is important
to note that in our discussions with small business owners and
local officials, they have clearly indicated that they do not
want to reopen old settlements. They also have limited
resources, and feel, as we do, that whatever the outcome, it is
time to put settlements that have been concluded behind us''
(letter dated March 25, 1998, to Chairman Chafee from Peter
Verniero and Hardy Myers).
B. Other Provisions that Invite Litigation. The bill
contains several additional provisions that would promote
litigation in their own right and due to inconsistencies with
other provisions. Following are some examples.
First, the bill creates a disincentive to settle and
promotes litigation by allowing PRPs to obtain reimbursement
from the Fund for cleanup costs they incur in excess of their
allocated shares, even when the PRPs refuse to settle and
preserve their ability to bring lawsuits for various potential
claims related to cleanup of the site.
PRPs conduct cleanups either under a judicial consent
decree or under an administrative order issued by EPA or
another duly delegated Federal agency. \16\ One of the primary
advantages of consent decrees is that they more completely
resolve the range of potential claims related to a hazardous
waste site. For example, settlements generally include
agreements to waive potential claims to challenge the remedy or
settlements between EPA and other PRPs, to litigate the
liability of settling parties, for reimbursement from the
Superfund, and against other settling PRPs. In addition,
consent decrees often resolve EPA's claims for past costs and
future oversight costs. By contrast, when PRPs refuse to settle
and instead conduct a cleanup under an administrative order,
they preserve rights to sue that under a consent decree they
generally would have to waive as a condition of settlement.
\17\
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\16\ S. 8 may create an entitlement to 100 percent of orphan
funding where cleanup is under an order, rather than the 90 percent
available under post-allocation settlements. We support offering 90
percent of orphan funding for post-allocation settlements, to create an
incentive for the parties to resolve their internal disputes through a
less resource intensive settlement process. However, PRPs who do not
settle, and instead clean up under an administrative order, should not
be entitled to more orphan funding than those who settle. This would be
a further disincentive to settle.
\17\ Although new section 137(o) provides that as a condition of
receiving orphan funding a PRP must waive claims against other PRPs for
cost recovery or contribution, it does not require a waiver of other
claims. By contrast, section 137(n)(2) requires a broader waiver of
claims as a condition of settlement.
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Because of the advantages of settlements in reducing
litigation, PRPs should be given incentives to settle. Orphan
funding provides that incentive. But the strength of the
incentive is reduced if orphan funding is made available even
if a PRP refuses to settle, and instead cleans up under an
administrative order, preserving certain rights to sue.
Under S. 8, PRPs conducting cleanups under administrative
orders issued before February 1, 1998, clearly are entitled to
allocations and orphan funding, and still reserve their rights
to bring a variety of claims in connection with the site. S. 8
also may create a right to reimbursement for PRPs who conduct
cleanups under administrative orders issued after February 1,
1998: section 137(o)(1) creates an entitlement to reimbursement
for post-allocation payments in excess of a PRPs share, as
determined by an allocator. This provision does not condition
payment on cleanup being conducted under a consent decree.
However, elsewhere S. 8 provides that a ``potentially
responsible party that does not agree to a settlement under
paragraph (4) is subject to post-settlement litigation,'' which
suggests that orphan funding may be available only to PRPs that
enter into judicial consent decrees.
S. 8 thereby promotes two layers of litigation: first, it
creates an ambiguity as to whether a PRP conducting a cleanup
under a post-enactment administrative order is entitled to an
allocation and reimbursement. Second, it promotes challenges to
the remedy, claims against the fund and other litigation, by
creating an entitlement to orphan funding without requiring
that PRPs waive these claims.
The Department of Justice summarized as follows its
concerns with S. 8's provision for reimbursement of PRPs who do
not enter into settlements:
Unfortunately, the allocation provisions of S. 8 would
reward recalcitrance and undermine incentives for PRPs
to agree to cleanup settlements. Under S. 8, a
recalcitrant PRP that refuses to enter into a cleanup
settlement after an allocation may be treated better
than a cooperative PRP that enters into a settlement
and assumes responsibility for cleaning up the site.
EPA's option for dealing with such a recalcitrant is to
issue an Administrative Order under Section 106
requiring such a party to perform the cleanup. Under S.
8, the taxpayers must then reimburse the recalcitrant
party for 100 percent of the costs such a party incurs
in excess of his ``share'' as determined by the
allocator. On top of this financial reward, the
recalcitrant PRP is free to continue to litigate its
liability, to challenge the remedy, to seek
reimbursement from the Superfund for all of its costs
at some point in the future, and to challenge
settlements between the United States and other PRPs.
Far from reducing litigation, S. 8 promotes it by
undermining the incentives for settlement.
A second provision ripe for litigation is section
137(f)(3)(D) of the bill, which creates a new right to bring a
lawsuit to challenge an allocator's decision. It is incongruous
to create a cause of action to challenge a decision made in
connection with a process established for the purpose of
avoiding litigation. Under this provision, parties could
challenge the allocator on virtually any exercise of discretion
in the allocation process. And each challenge could delay the
process, pending judicial resolution, which may take a very
long time. This provision has the potential of taking a process
that is intended to expedite settlements and cleanups, and
grinding it to a halt.
Juxtaposed with this provision is section 137(h)(5), which
provides that a ``draft allocation report or final allocation
report of an allocator and any other determination made by the
Administrator or the allocator for the purposes of [subsection
(h)] shall not be subject to judicial review.'' Arguably every
decision of an allocator is ``for purposes of'' subsection (h),
which concerns the allocation report, since the report is the
culmination of the allocation process. But that would render
section 137(f)(3)(D) meaningless. Reconciling these two
provisions could give rise to an additional layer of
litigation.
Third, S. 8 will create unnecessary litigation over new
undefined and untested standards and terms. It is not unusual
for new laws to generate litigation, until the meaning of new
standards and requirements is settled through judicial
interpretation. However, S. 8 would needlessly generate
litigation by unnecessarily introducing a variety of new and
ambiguous standards. For example, title IV (Remedy) of S. 8
contains a new definition of protection of the environment. It
provides that a determination of whether a remedial action is
protective of the environment ``shall not be based on the
impact to an individual plant or animal in the absence of an
impact at the population, community, or ecosystem level . . .''
(section 121(a)(1)(B)(ii)(II)). Since the words ``population,''
``community,'' and ``ecosystem'' are subject to different
interpretations and are not defined in the bill, use of these
terms has the potential to create new litigation. Additional
new phrases that are likely to generate litigation are
addressed in the discussions of other titles.
According to State Attorneys General, ``It is changes such
as these, imposing new language and new standards, which will,
we fear, lead to new litigation or diversion of resources from
what everyone professes to be the goal of this statute, which
is faster, more efficient cleanups without the involvement of
litigation.'' The Department of Justice expressed similar
concerns: ``These undefined terms may interfere with the
ability of the government to protect human health and the
environment, and will spawn new litigation by displacing the
now well-established case law under the existing statutory
criteria for Federal action.''
The Bill Contains Overly Broad Liability Exemptions and Limitations,
and Fails to Protect and Preserve the Superfund Trust Fund for
Cleanup of Abandoned Sites
We support appropriate contribution from the Fund, in
connection with a cleanup settlement, of shares attributable to
certain exempt, insolvent and defunct parties. Orphan funding
is an effective tool for achieving settlements and at the same
time removing from CERCLA liability those parties who would be
unable to make significant payments or whose share is minimal.
But many of the exemptions and requirements for orphan
funding in S. 8 simply go too far. Some examples have already
been discussed: the mandate to provide orphan funding to PRPs
who are already under a legal obligation to conduct a cleanup,
and the mandate to provide orphan funding to PRPs who are
conducting a cleanup under an administrative order.
While this discussion is not intended to be exhaustive,
there are a few additional instances of inappropriate
exemptions and S. 8's failure to protect and preserve the Fund
that warrant mention: the overly broad small business
exemption; mandatory allocations and orphan funding at sites
where all PRPs are current or former owners or operators of the
facility, and at Federally owned facilities; the overly broad
recycling exemption; preemption of State laws with respect to
liability of response action contractors; and the requirement
that EPA accept a settlement offer based on an allocation
without regard to whether it would impair the Agency's ability
to address cleanup of other hazardous waste sites.
A. Small Businesses Exemption. S. 8 exempts too many
parties under the guise of a small business exemption. Under
section 107(s) of S. 8, a small business is exempt if:
(1) during the taxable year preceding notification that it
is a PRP the business (a) employed not more than 75 full-time
employees or full-time equivalents, or (b) reported $3 million
or less in annual gross revenue; and
(2) ``The activities specifically attributable to the
person resulted in the disposal or treatment of material
containing a hazardous substance at the vessel or facility
before January 1, 1997'' (section 107(s)(1).
We oppose this provision on two grounds: first, the
definition of a small business at 75 employees or $3 million
captures too many companies that contributed more than de
minimis amounts of hazardous waste and can afford to pay their
share of a cleanup. Of course, the larger the exemption, the
greater the costs that are shifted to the Superfund and are
unavailable for cleanup at other sites. Second, it goes beyond
exempting small business generators and transporters, to exempt
owners and operators of hazardous waste sites. We address these
issues in turn.
The incremental expansion of this exemption over the course
of this Congress prompted Senator Baucus to observe at markup
that we are approaching the point that the exemption is
swallowing the rule. A brief chronology illustrates the point:
In the 103d Congress, S.1834 did not have a small business
exemption per se. Instead, it provided liability relief to
small business generators and transporters through a variety of
other liability exemptions and limitations, such as: exemptions
for de micromis contributors of hazardous waste and small
business contributors of municipal solid waste; and expedited
settlements for de minimis amounts of waste, for PRPs whose
ability to pay is limited, and for small business.
During the negotiations in the 104th Congress, we and EPA
proposed an exemption for small business generators with fewer
than 25 employees and less than $2 million in gross annual
revenues. As Administrator Browner explained in testimony
before this Committee, the small business exemption is intended
to serve as a proxy for ability to pay. Since evaluation of the
ability of small businesses to pay is resource-intensive, and
generally small businesses are small contributors and have a
limited ability to pay, the exemption enhances efficiency and
reduces transaction costs by serving as a presumptive
``inability to pay'' exemption.
In S. 8, as introduced at the beginning of the 105th
Congress, the small business exemption applied to small
businesses that employed on average fewer than 30 employees
during the taxable year, or reported $3 million or less in
annual gross revenues. The use of ``or'' rather than ``and''
significantly increased the number of businesses covered by the
exemption. Then, a revised Mark released in February of 1998
increased the employee cutoff to 50, and at markup 50 employees
was further increased to 75 employees.
No showing has been made, nor evidence offered, to
demonstrate any need for further expanding the scope of the
exemption by increasing the employee threshold. When a
representative of the National Federation of Independent
Businesses (NFIB) testified on S. 8 in September of 1997, she
did not suggest that there was any problem with the employee
threshold, which at that time was only 30. Nonetheless, S. 8
has since more than doubled that number. According to NFIB, the
vast majority of small businesses have fewer than 50 employees:
of the 6 million businesses in the United States, 94 percent
employ fewer than 50 persons, and almost 90 percent employ
fewer than 20. Moreover, even among PRPs with fewer than 50
employees, many have annual gross revenues well in excess of $3
million. Increasing the employee cutoff to 75 would only
increase the number of exempt businesses that are fully capable
of contributing toward cleanup, and who as a policy matter
should be required to contribute toward remediating conditions
that they helped create.
We also oppose exempting PRPs who own or operate hazardous
waste sites. These are parties that exercise control over the
property, and in many cases either caused the problem or are
current owners that paid a reduced purchase price to a seller
who caused the problem. Yet, they would be allowed to benefit
from an increase in their property value as a result of a
government financed cleanup. Further, if they are unable to
pay, they would receive the benefit of the expedited settlement
provisions for ``inability to pay'' settlements. If, however,
they can afford to pay, then exempting them from responsibility
to clean up their own property constitutes another imprudent
use of the Fund.
Some of the worst Superfund sites have been owned or
operated by small businesses. For example, the Lipari landfill,
which was number one on the NPL, was operated by a sole
proprietor, Nick Lipari, who permitted industrial customers to
back their trucks up to a hole on his property and dump
millions of gallons of toxic liquids into the ground. Later he
cooperated with the government and contributed over $1 million
toward the cleanup.
B. Mandatory Allocations and Orphan Funding at Owner/
Operator and Federal Facilities. Under S. 8, owner/operator
sites are within the universe of facilities at which
allocations and orphan funding are mandatory, so long as
certain minimal conditions are met: that response costs to be
incurred after enactment will exceed $1 million; and there must
be 2 or more PRPs (which may include one that is exempt).
So-called ``owner/operator'' sites are sites where all
contamination was caused by the current and former owners and
operators of the facility. No contamination was contributed by
off-site generators or transporters. Many owner/operator sites
constitute ``chain of title'' sites, where a series of
different, though often related, parties have owned the
facility, and some or all of them have contributed to the
contamination over time. Title to the site has passed from one
owner to another over the years. Advocates of mandatory
allocations and orphan funding for this type of owner/operator
sites argue that the taxpayers should compensate current owners
for the ``shares'' of prior owners that are now defunct or
unable to pay.
We believe there are strong policy reasons against
mandating allocations, and provision of orphan share funding,
at owner/operator sites. First, owner/operator sites are not
the type at which allocations are necessarily needed or suited.
Typically, they have smaller numbers of PRPs than do multi-
party generator/transporter sites. Allocations are a valuable
settlement tool at the sites with large numbers of PRPs, such
as co-disposal landfills. Due to the large number of parties,
transaction costs for litigation are particularly high. Owner/
operator sites generally have fewer PRPs, so the potential
savings on transaction costs from an allocation are more
limited.
The types of issues raised are distinguishable as well.
Generator/transporter sites usually pose issues which to a
large extent are factual, often focusing principally on the
volume and toxicity of waste each PRP contributed to the site.
By contrast, owner/operator sites often pose issues that are
more legal in nature, such as whether the current owner, a
successor, is legally responsible for the acts of a related
company that is its predecessor, the prior owner. Requiring
mandatory allocations and orphan funding at these sites will
force highly complex legal issues into a process not best
suited to their resolution.
In addition, it is not unfair to hold property owners
responsible for conditions on their property, subject to the
innocent landowner defense. Current owners who acquired the
site after the dumping ceased, and did not know of the
contamination despite exercising due diligence, already have a
defense to liability under the ``innocent landowner'' provision
of Section 107(b)(3) of CERCLA. Such parties need no mandatory
orphan funding because they have no liability to begin with.
That leaves owners who acquired the site with actual or
constructive knowledge of contamination, or who failed to
exercise due diligence to ascertain site conditions. It is fair
to require such owners to take full responsibility for
hazardous conditions on that property. Common law routinely
imposes such responsibility on current owners. For example, the
current owner of a decrepit apartment building is responsible
for dangerous conditions such as broken stairs, even if the
hazard existed before the current owner bought the building.
The taxpayers are not forced to provide ``orphan funding'' for
repairs if the prior owner is defunct. In addition, the
purchase price may well have been reduced to reflect the
contamination. Use of Fund money to address those conditions
would improve the value of the property and give a windfall to
the current owner.
At many chain of title sites, title has passed by means of
a transactions among affiliated or related entities. In these
cases, the current owner is often legally responsible for the
liabilities of the defunct prior owner under one or more of
several complex legal principles of successor liability such as
de facto merger, assumption of liability, or ``substantial
continuity.'' In such cases, a defunct prior owner's liability
has legally passed to a subsequent owner, or ``successor.'' It
is inappropriate to invite current owners to attempt to
transfer their legal successor liability for their predecessors
to the taxpayers through the allocation process.
The National Association of Attorneys General expressed
their opposition to mandating allocations at owner/operator
sites. They stated: ``In our experience, these sites do not
present the problems of factual issues that warrant findings by
an allocator. They present only legal issues that are best left
to the courts, generally through motion practice. To require
allocation will delay resolution of these matters, and
significantly increase, not decrease, their cost.''
Mandatory orphan funding at owner/operator sites, which
constitute approximately 50 percent of the sites on the NPL,
including some that cost in the hundreds of millions of dollars
to clean up, could have a major financial impact on the Fund.
That is not to say that orphan funding will never be warranted
at an owner/operator site. It may. But orphan funding should
not be broadly mandated for this category of sites. They could
remain eligible for permissive allocations. That way, in truly
compelling cases that would not create a windfall for the
current owner, orphan funding may be offered, at the discretion
of and in amounts determined by the Administrator. \18\
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\18\ Under current law, EPA sometimes makes compromises at owner/
operator sites to reflect fairness and account for the contribution of
parties that are now defunct. In addition, owners and operators at
these sites also have some protection through provisions for ability to
pay settlements, where conditions warrant.
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The Substitute excludes owner/operator sites from the
definition of mandatory allocation facilities, but leaves them
eligible for allocations and orphan funding at the discretion
of the Administrator (``permissive allocation''). Mandatory
allocation and orphan funding at these sites would not be an
appropriate use of the Fund.
We also oppose mandatory allocation and orphan funding at
Federal facilities. Among other reasons, section 111(e)(3) of
CERCLA bars the use of Superfund money for remedial activities
at Federal facilities. In addition, Federal facilities are
similar to owner/operator sites in that generally they involve
a relatively small number of PRPs. Hence, like owner/operator
sites, potential resources required to conduct an allocation
may outweigh any reduction in transaction costs that could be
realized from mandatory allocations. And, often when the United
States brings claims regarding Federal facilities, those claims
are in the nature of contribution claims. As noted earlier,
under section 113(f)(1) of CERCLA, parties in contribution
actions are not jointly and severally liable.
B. Recycling exemption. We supported the recycling
provisions in the consensus bill in the 103d Congress. And we
supported the bill introduced by Senator Warner in the 104th
Congress, S. 607, which was in most respects identical to the
recycling provisions in the Superfund bill from the 103d. We
continue to support an approach such as in those two proposals,
as evidenced by the recycling provision in the Substitute.
We are concerned with S. 8's departure from these
proposals. First, the momentum that has held together the
agreement of the 103d Congress is lost with the new proposal. A
broad range of interested parties reached agreement in
connection with the recycling provisions in S.1834 in the 103d
Congress, and that group has vigorously attempted to preserve
that agreement, notwithstanding the fact that much of the rest
of S. 1834 has since been revisited and revised. These efforts
seem to reflect not that the agreement is necessarily perfect
from the standpoint of any one interest, but that reopening the
agreement in any way risks losing the broad based support. We
are concerned that without the momentum behind the agreement
and the Warner bill, amendments will take this provision even
further from the original purpose of a recycling provision than
has S. 8. More specifically, our primary concerns with S. 8's
recycling provisions are these:
First, the exemption has been enlarged to encompass waste
other than post-consumer use waste. The original goal of the
recycling proposals was to avoid penalizing post-consumer use
recycling efforts. S. 8 would expand the liability exemption to
cover entities that generate and transport byproducts and
wastes in the course of certain traditional manufacturing
activities.
For example, S. 8 exempts generators and transporters of
copper and copper alloy byproducts as ``scrap metal
recyclers.'' S. 8 defines ``scrap metal'' to include byproducts
of copper and copper-based alloy production processes, and
removes a previously proposed requirement that scrap metal
cannot be ``melted.'' ``Scrap metals'' under this bill appear
to be aimed at covering smelter wastes, as long as they are
``sold'' to someone. For example, the exemption could subsume
copper smelting sites where copper smelting slags were sold as
fill. At some NPL sites, smelting slags have been sold to
companies that have broken the slags into pieces and
distributed them as ``fill.'' Heavy metals contamination has
resulted. If this language is enacted, smelters could argue
that their wastes qualify as ``recyclable scrap metal,'' and
they would be exempt from liability as generators and
transporters.
S. 8 also contains an exemption for ``toll processing'' of
batteries. Under this provision, PRPs that normally might
recycle batteries themselves (and thus be liable for any
contamination as owners and operators) are permitted to evade
liability as ``generators'' of waste by subcontracting the
recycling off-site, while they nonetheless keep the valuable
components of the batteries that are recovered through the
recycling process. This will create poor waste handling
incentives and undermine environmental protection.
We also are concerned that S. 8 departs from the agreement
reached in the 103d Congress insofar as it fails to provide a
heightened standard of care for persons seeking the exemption
for post-enactment recycling transactions. Lastly, we are very
concerned that this exemption adds yet another inappropriate
burden on the Superfund Trust Fund. For example, at NPL sites
the Superfund would be responsible for paying the share of pre-
enactment cleanup costs attributable to a smelter that is
exempted as a scrap metal recycler.
C. Pre-Emption of State Laws on Liability of Response
Action Contractors. Our principal concern with S. 8's provision
concerning response action contractors is its preemption of
State negligence law. Specifically, S. 8 provides that the
negligence standard under section 119 of CERCLA applies in any
lawsuit against a response action contractor not only under
CERCLA, but also under State law, unless a State enacts a
statute that establishes a standard for liability of response
action contractors.
We believe that, for purposes of CERCLA, response action
contractors should be subject to liability only in limited
circumstances. But we also believe that States should be able
to make their own decisions about the liability of response
action contractors under their own State hazardous waste
cleanup and tort laws. Moreover, we see no reason why a State
legislature should have to pass a statute specifically
addressing the liability of response action contractors in
order to avoid Federal preemption. A State may be perfectly
happy with its common law, or believe that the matter is best
addressed generally rather than by a law specifically
addressing the liability of response action contractors. As
Stated by State Attorneys General in their letter of March 25,
1998, ``[liability of] response action contractors . . . is
another area best left to the States.''
D. EPA May Not Reject a Settlement Offer on Grounds that it
Would Impair the Ability of EPA to Conduct Cleanups at Other
Sites. S. 8 limits the grounds on which the United States may
reject an allocator's report to two: (1) that it does not
provide a basis for settlement that is fair, reasonable and
consistent with CERCLA; or (2) that the allocation process was
directly and substantially affected by bias, procedural error,
fraud, or unlawful conduct (section 137(l)). Absent one of
these conditions, EPA is required to accept a settlement offer
based on the share allocated to a PRP in the allocator's
report, so long as the PRP agrees to other terms and conditions
specified in the bill (section 137(n)).
As one of those conditions EPA may require that a PRP
conduct a response action. But, in addition to any orphan
share, EPA would be required to reimburse the PRP for estimated
shares attributed to nonsettling parties. So, for example, if
one PRP whose allocated share is 5 percent agrees to conduct
the cleanup and to other conditions, then EPA would be required
to settle with the PRP and, within strict time frames,
reimburse the PRP for orphan share and costs of nonsettling
PRPs. In this example, assuming there was no orphan share, EPA
would have to reimburse the PRP for 95 percent of the cleanup
costs. These payments from the Fund must be made periodically
during the course of the response action, and not later than
120 days after completion of construction of a remedy that
takes less than a year to construct.
This means that EPA must pay shares attributable to
nonexempt, viable, liable nonsettlors even if doing so would
adversely impact the Agency's ability to respond at other
sites. S. 8 thereby creates the possibility that EPA would be
required to reimburse settling PRPs for shares attributable to
parties who refuse to settle, to the detriment of another site
at which those resources are needed for cleanup. In view of all
of the other costs that S. 8 shifts to the Fund, it is quite
possible that payment of a significant recalcitrant share could
impair EPA's ability to fulfill its primary mission, to clean
up hazardous waste sites.
The Substitute protects against this situation by providing
that the United States may reject an allocation report if
settlement based on the report would adversely impact the
Agency's ability to take action at other sites. PRPs would
still have the option of settling if they paid the ``orphan
share'' and assumed the responsibility for recovering
nonsettlors' shares in a contribution action. Failure to
include such a safety valve unnecessarily risks depleting the
Fund and places reimbursement of settling PRPs ahead of
protecting human health and the environment.
BROWNFIELDS
Introduction
We have two principal sets of concerns with S. 8's
Brownfields title. First, changes from previous legislative
proposals for funding brownfields assessment and cleanup would
significantly reduce the role of municipalities, unnecessarily
increase the complexity of funding mechanisms, and fail to
ensure adequate resources for assessment of brownfields. On the
first day of this Congress in January of 1997, we introduced
brownfields legislation, S. 18, to promote brownfields
assessment and cleanup. Minority Leader Daschle designated S.18
one of the Senate Democrats' top legislative priorities. We
fear that S. 8 would adversely impact our longstanding efforts
to return brownfields to productive use.
Second, we believe that S. 8's voluntary cleanup
provisions, by imposing significant constraints on EPA's
enforcement authority without corresponding assurances of the
adequacy of cleanups under State programs, would place our
communities at risk.
The Bill Would Adversely Affect the Current Program for Providing
Brownfields Assistance
At the outset, we note our dismay with the fundamental
changes that S. 8 would make to EPA's ongoing program for the
assessment and cleanup of contamination at brownfields sites.
We are not aware of any need or justification for these
changes. None was offered at the multiple Superfund hearings
held before this Committee, including one devoted entirely to
brownfields and voluntary cleanup programs. In fact, by
virtually all accounts, the program has been quite successful.
EPA's site assessment grants have already yielded more than
2000 jobs (either cleanup jobs, or jobs resulting from
brownfields redevelopment), and nearly $1 billion for cleanup
and redevelopment. \19\ It is too soon to judge EPA's Revolving
Loan Fund (RLF) grant program, which began in 1997. However,
already there have been successes. For example, the City of
Dallas just voted to match EPA's $350,000 RLF capitalization
grant.
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\19\ For example, as a result of a $250,000 site assessment grant,
the city of Dallas leveraged nearly $53 million in public and private
funding for cleanup and redevelopment of a former landfill, industrial
facility, and vacant lots. In St. Louis, the 12-block Dr. Martin Luther
King Business Park, which consisted of idle industrial facilities and a
vacant brewery and hotel, has been cleaned up and redeveloped to create
businesses expected to yield 2000-3000 new jobs.
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It is unnecessary and inefficient to start over with a host
of new and untested procedures for a program that has a very
good track record and concerning which there has been broad-
based bipartisan support. Instead, we should build on the
program's success. \20\
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\20\ Until the Chairman's Mark to S. 8, legislative proposals on
brownfields (including S. 8 and S. 18) had very similar brownfields
funding provisions, which would have built upon EPA's existing
procedures. They contained provisions that authorized EPA's
establishment of two programs with which to award grants to States,
cities, towns, or Tribes: one to perform site assessments; and one to
capitalize RLFs to make cleanup loans. They also would also have
codified criteria, similar to those EPA uses today, as the basis for
EPA decisions on grant awards.
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More specifically, we have three principal concerns with
the funding provisions of S. 8. First, it significantly limits
the role of municipalities in any loan program. Under EPA's
pilot program and under prior versions of S. 8, both local
governments and States were eligible to receive capitalization
grants for RLF programs, from which they would award loans for
cleanup of brownfield sites. This would change under the bill:
States would have first rights to brownfields capitalization
grants. Cities could receive these grants only if the State
declined, and even then only cities with populations over 1
million are eligible.
We are concerned with the requirement that Federal loans
and grants flow through States (in S. 8's State Loan Fund
Provision), making them intermediaries between EPA and
municipalities. We have heard no testimony indicating that
States seek to displace local governments as the chief agents
of brownfields redevelopment. States may apply to EPA for
capitalization grants today under the pilot program, but the
majority of applications have been submitted by, and awards
made to, cities, towns, or local redevelopment associations.
Indeed, a recent report by the United States Conference of
Mayors indicates that cities have eagerly seized brownfields
assistance opportunities, while States have shown little
interest. A recent letter from the Mayors to this Committee
emphasizes their bipartisan support for brownfields grant
provisions that ``ensure much needed resources are available
directly to the communities which are ready to tackle their
brownfields inventories aggressively.'' (emphasis theirs).
Second, we are concerned that there is no mechanism to
ensure that site assessments will be adequately funded. There
is no set-aside for assessment funding, nor any assurance that
any assessment funding will be available through grants rather
than loans. By collapsing the two grant programs into one,
without any set-aside for assessment grants, funding for
cleanup could consume too many of the limited Federal dollars,
and leave too little for site assessments, the critical first
step in initiating brownfields cleanup and redevelopment
activities. For a relatively small investment, an assessment
grant potentially opens the door to redevelopment: often
assessments reveal relatively light or no contamination, and
cleanup and redevelopment can proceed. On the other hand, if an
assessment reveals conditions that are not suitable for cleanup
under a brownfields program or for redevelopment, assessment
costs may not be recouped. Providing grants for assessments
creates a heightened incentive to conduct an assessment; and,
since assessments are less expensive than cleanup, Federal
money will go further if a minimum amount is reserved for
assessments.
Finally, we have serious concerns with the new requirement
for development of a distribution formula pursuant to a
negotiated rule-making. In contrast to the State revolving
funds under the Clean Water and Safe Drinking Water Acts, both
of which rely on formulas, the brownfields loan fund will
involve relatively small sums of money. A requirement to
develop a formula after a negotiated rule-making introduces
unnecessary complexity and potential delay. Further, S. 8 would
require that the formula be updated at least every 2 years. The
amount of money involved does not justify so resource intensive
a funding mechanism, particularly considering the risk of
delay. Moreover, there is no need for a formula. A combination
of criteria and statutorily specified caps (contemplated in all
previous legislative proposals) could ensure a fair
distribution of scarce Federal dollars.
The Conference of Mayors has testified that ``redevelopment
of brownfields is our top national priority.'' Communities,
cities and others are anxious to move forward with brownfields
cleanup and redevelopment while the economy is strong, and
before expiration at the end of the year 2000 of the law that
makes brownfields cleanup costs tax deductible. Administrator
Browner highlighted S. 8's new State Loan Fund requirement as
one of her significant concerns with S. 8. We are concerned
that S. 8 would slow the momentum.
The Bill's Voluntary Cleanup Provisions Would Bar EPA Action Without
Adequate Safeguards
We support measures to promote the development and
enhancement of State voluntary cleanup programs, in order to
promote cleanup of the nation's hundreds of thousands of lower
risk sites unlikely to warrant EPA attention under CERCLA.
Our concerns with S. 8 relate to a narrower but critical
issue: if a site is addressed under a State program, to what
extent and under what circumstances is it appropriate to limit
EPA's authority under Superfund? Any resolution of this
question must take into consideration three factors: (1) the
assurances of the adequacy of a State program that should be
required as a precondition to restricting EPA authority; (2)
the nature of any restrictions and the circumstances under
which those restrictions should be lifted; and (3) the sites
that should be possible candidates for restrictions. The manner
in which S. 8 answers these questions would severely constrain
Federal authority without sufficient assurances that sites
would be addressed in a manner that protects human health and
the environment.
Proponents of this provision in S. 8 rely largely on
concerns that the fear of CERCLA liability may deter property
transfers and redevelopment. We share those concerns, but
believe that they must be considered in perspective and
addressed in a more balanced and protective manner.
First, in many instances those concerns would be addressed
by a prospective purchaser exemption, which we support and
which is in our Substitute. And, in most respects, we agree
with the prospective purchaser exemption in S. 8. Under that
provision, a purchaser of contaminated property is exempt,
provided that specified conditions are met.
Second, the desire to provide developers certainty with
respect to potential CERCLA liability must be balanced against
the needs of municipalities and community members for certainty
that someone will be there to protect them from threats
associated with releases of toxic waste. Representatives of
local governments have testified that they are concerned that
they will bear the brunt of any inadequate site assessment or
cleanup. On those relatively rare occasions when a site that is
being or has been handled under a State program does require
EPA intervention, citizens need to know that obstacles will not
stand in the way of their protection. This point was
underscored by the Environmental Justice Resource Center and
other local community groups who wrote: ``Our communities know
from painful experience that some States have weak programs;
even States with good programs need a Federal back-stop.''
Third, potential CERCLA liability may be an important
reason that some real estate transactions do not occur, but
usually it is not the only reason. Other possible deterrents to
redevelopment include lack of infrastructure or a high crime
rate. In other words, the problems surrounding brownfields are
complex, and cannot be resolved by a change to the CERCLA
liability scheme, no matter how extreme. Therefore, changes to
CERCLA should not be based on the assumption that the greater
the restriction on EPA authority, the more we are promoting
brownfields cleanup and redevelopment. The standard for
evaluating any change should be whether it will ensure
protection of human health and the environment. We hope and
believe that changes to CERCLA could be made that would both
promote cleanups under State programs and meet this standard.
Unfortunately, S. 8 does not.
A. Limitations on EPA authority. New section 129(a)
provides that, subject to limited exceptions, ``neither the
President nor any other person may use any authority under this
Act to take an enforcement action against any person regarding
any matter that is within the scope of a response action that
is being conducted or has been completed under State law.'' The
bill goes on to attempt to define the limited circumstances
when this bar could be lifted. We have serious concerns with
the scope of the bar and the inadequacy of the exceptions. We
address them in turn below.
The bar on enforcement clearly would preclude any action by
EPA to require PRPs to conduct a cleanup or for recovery of
costs spent by the United States in conducting a cleanup. In
addition, it potentially could impede EPA's ability, even using
Fund money, to respond to conditions that present an imminent
and substantial endangerment to public health or the
environment. For example, if EPA requires access to property to
assess conditions or conduct a cleanup, and a PRP refuses to
comply with a request for access, S. 8 would preclude an action
to compel site access. If EPA cannot get onto a site (because
it cannot get access), it cannot perform a response. In
addition, if the Federal program is underfunded, there may be
no one to respond, if EPA cannot order performance. \21\
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\21\ We also oppose S.8's bar against enforcement by persons other
than EPA, which is even broader, since the bill does not provide for
lifting the bar on their enforcement actions under any circumstances.
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The scope of the bar also is unclear. An action could not
be taken regarding any matter ``within the scope of a response
action'' under State law. Particularly in States that do not
require the preparation and approval of cleanup plans before
cleanup may begin, it may be difficult to know what is within
the scope of the response.
The exceptions to the bar are too narrow and burdensome,
and do not allow EPA to ensure the protection of public health
and the environment. The first would lift the bar at a State's
request. We hope and expect that in most circumstances a State
would request EPA involvement where it was needed. But
experience shows that that does not always occur, and citizens
should not be put at risk due to the absence of a request, for
whatever reason. The second would lift the bar if contamination
crossed State lines, a condition that may occur infrequently.
The third applies after a cleanup, and requires that EPA
determine both that the State is unwilling or unable to take
appropriate action after notice and an opportunity to cure, and
that there is a substantial risk requiring further remediation
to protect human health or the environment because of unknown
conditions, fraud, remedy failure, or a change in land use
giving rise to a clear threat of exposure. In addition to
introducing uncertainty because of new and untested standards
such as ``substantial risk'' and ``clear threat of exposure,''
these provisions may unnecessarily place people at risk by
precluding intervention until conditions have escalated
significantly.
The fourth condition would lift the enforcement bar if EPA
determines that a State is unwilling or unable to take
appropriate action and provides the State notice and an
opportunity to cure and determines that there is a ``public
health or environmental emergency under section 104(a)(4)'' of
existing law. This standard, too, is untested. We are not aware
of any judicial interpretation of the standard, and, according
to EPA, it has never been invoked.
By imposing a bar on EPA's ability to act, and extremely
narrow conditions for overcoming that bar, S. 8 creates a
heightened standard for EPA action. Other Federal environmental
laws allow EPA to step in and ``overfile'' using the same
standard it would have used, had it taken the enforcement
action to begin with. We should not risk public health while we
debate whether a hazardous substance release has risen to a
new, undefined, level of ``emergency'' that warrants EPA
action. As the National Association of Attorneys General wrote,
changing the current standard from ``imminent and substantial
endangerment'' to ``emergency'' will ``lead to new litigation
or diversion of resources from what everyone professes to be
the goal of this statute, which is faster, more efficient
cleanups without the involvement of litigation.'' A letter from
the Environmental Justice Resource Center echos these
sentiments, and expresses concerns that the new standards will
cause confusion and ``delay action in the face of health
threats.''
Proponents of the new limitations on EPA reject the current
standard of imminent and substantial endangerment in this
context on grounds that it can be too easily met. Some base
this conclusion on court holdings under the current standard.
But that conclusion ignores a key distinction between the
situation in those cases and the situation here: the case law
on ``imminent and substantial endangerment'' interprets the
standard as the basis for EPA's taking action before a cleanup
has commenced. It is not surprising that the standard would be
met before any cleanup has taken place. But in the case of
voluntary cleanups, the issue of EPA intervention generally
would arise after a cleanup has taken place. It should be
significantly more difficult to meet this standard after a
cleanup. If conditions do present an imminent and substantial
endangerment after a cleanup, then the law should not impede
EPA's ability to take or require a response. \22\
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\22\ One such instance occurred where the State of New Jersey gave
a clean bill of health at a warehouse cleaned up under a State
voluntary program. Later, after the building had been converted into
condominiums, the new owners discovered that the building was heavily
contaminated with mercury. The city and State asked EPA to assume the
lead in evacuating the residents (some of whom tested positive for
mercury poisoning) and remediating the problem.
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Finally, experience shows that cleanup and redevelopment of
brownfields is occurring all over the country notwithstanding
EPA's authority to step in under the ``imminent and
substantial'' standard in current law. And we are not hearing
any complaints that EPA has stepped in at sites being addressed
under State programs. In addition, we have heard from
developers and municipalities alike that Memoranda of Agreement
between EPA and certain States, under which EPA states its
general intent not to take response actions at sites being
addressed under approved programs, have encouraged cleanup of
brownfields in those States. \23\ Significantly, those MOA's
generally include an exception to this general intent not to
act fashioned on the imminent and substantial endangerment
standard. Lorrie Louder, on behalf of the National Association
of Local Government Environmental Professionals, testified that
NALGEP would support a reopener based on an imminent and
substantial endangerment standard. And Richard Gimello, the
Deputy Commissioner of the New Jersey Department of
Environmental Protection, testified that ``in the event EPA
discovers an imminent and substantial threat to human health
and the environment at a site, it should be able to continue
using its emergency removal authority.''
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\23\ An interim guidance that EPA issued in November, 1996, applied
to MOAs that EPA entered into after that date. EPA then issued a final
draft guidance in September, 1997, but withdrew this due to a lack of
consensus on a range of issues among a variety of persons who submitted
comments on the draft guidance. These comments included criticism of
EPA's proposed new method for distinguishing low risk from high risk
sites. EPA's November, 1996 interim guidance remains intact.
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B. Minimum Criteria. S. 8 contains no minimum standards to
ensure that a State cleanup program will protect public health
and the environment. This is extremely troubling, since the
only criterion that has to be met to trigger the limitations on
EPA authority is that a person is taking or has taken a
response action under State law. Under S. 8, what that law does
or does not require is of no consequence. Again, the question
is not whether States can operate their own cleanup programs.
They can, and do, without any EPA evaluation, approval or
oversight. The question is whether actions under State programs
should bar EPA's authority to respond, even if there is an
imminent and substantial endangerment. This authority is
central to CERCLA's purpose. Even assuming some limitation were
acceptable, there must be some assurances that the State
program taking its place meets minimum standards. \24\
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\24\ The absence of minimum standards is unprecedented in the
analogous situation, where Federal environmental laws allow for State
implementation: every one does so only on the condition that EPA find
that the State program meets minimum criteria.
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Ms. Louder testified in support of requiring that State
voluntary cleanup programs meet minimum standards as a
prerequisite to placing any limits on EPA action: ``States vary
widely with their technical expertise, staffing, statutory
authority and commitment necessary to ensure that brownfields
cleanups are adequately protective of public health and the
environment.'' \25\
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\25\ A 1997 General Accounting Office report indicates that of the
17 voluntary cleanup programs studied, some allowed for less
comprehensive cleanups or cleanups that did not permanently treat waste
but relied upon restricting site use; all of the programs reduced the
requirements they imposed on voluntary cleanups to cut time and costs;
three did not require long-term monitoring of nonpermanent cleanups or
oversight; and eight required no public participation in the cleanup
process other than filing a notice in a local newspaper.
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We recognize the importance of ensuring that any Federal
criteria strike an appropriate balance between setting a
protective baseline and leaving States flexibility to shape
their own laws. Amendments offered at markup by Senators
Baucus, Lautenberg and Moynihan struck that balance. So does
our Substitute. They require such things as adequate site
assessments, protection of human health and the environment, a
mechanism for State approval of a cleanup plan and
certification of completion, meaningful opportunities for
public participation, and adequate oversight, enforcement
authorities, and resources.
C. Site Eligibility. The concerns discussed above are
compounded by the fact that under S. 8, EPA action may be
barred even at high risk sites. For example, the enforcement
bar would apply at all of the approximately 14,000 sites
remaining on CERCLIS, including approximately 3,000 that are
known to pose health and environmental risks serious enough to
warrant listing on the NPL (the other approximately 11,000 have
not been evaluated or have been deemed low-risk); and at all
sites added to CERCLIS in the future, unless EPA lists the site
on its NPL within 2 years. \26\
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\26\ We are also concerned about the large number of sites that
either have not been evaluated, or have been evaluated but for which
listing decisions have not been made. But there is no bar today on the
cleanup of these sites under State programs. We hope that the combined
efforts by EPA and States will speed the evaluation and cleanup of
these sites.
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It is inappropriate to constrain EPA authority at high-risk
sites, particularly when they have been addressed through
programs that were designed to foster expedited cleanups of
lightly contaminated sites and may be inadequate to address
high risk sites. A representative of NALGEP testified that
constraints on EPA authority should be confined only to low-
risk sites. Mayor Chris Bollwage also testified that the U.S.
Conference of Mayors seeks a legislative ``bright line
distinction'' between Superfund-caliber and brownfield sites.
A combination of baseline criteria, fewer restrictions on
EPA authority, and a more effective method to ensure that EPA
authority will not be compromised at high risk sites could help
provide certainty to developers, municipalities and communities
alike. However, as it stands now, the bill could seriously
weaken EPA's ability to protect public health and the
environment by constraining EPA's authority at high risk sites,
failing to require that programs meet minimum standards as a
prerequisite to any bar on Federal enforcement authority, and
imposing inappropriate restrictions on EPA action and an
inadequate mechanism to lift the enforcement bar.
STATE ROLE
Introduction
The hazardous waste sites addressed in this title, those on
the NPL, are among the most hazardous in the Nation. We support
a responsible transfer of CERCLA cleanup authority with respect
to these sites to qualified States and Tribes. The challenge is
to fashion legislation that accounts for the significant
variability among States, and within a given State over time,
with respect to their capability, authority and resources to
assume primary responsibility at NPL sites. Any statutory
division of labor must maintain the checks and balances common
to other environmental laws, which help to ensure that
statutory requirements will be fulfilled by the States, that
Federal authorities will be preserved as a backstop, and that
the purposes of CERCLA will be achieved.
But the approach in S. 8 to transferring authority to
States omits fundamental safeguards to ensure that protection
of human health and the environment is not compromised. This is
due to a combination of factors, including the inadequacy of
criteria against which State capabilities would be evaluated
and transfers approved; the possibility of State program
approval without any review, under the expedited approval
process; and extreme limitations on the authority of EPA to
take action at sites that are under a State program. \27\ In
addition, we fear that this title's failure to ensure
conservation of the Superfund Trust Fund could result in there
being insufficient resources to address toxic waste sites at
which there are no viable PRPs. And, the bill fails to include
amendments to current law necessary to address matters that
involve Tribes in various aspects of the Superfund program.
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\27\ Several of our concerns with the State title also apply to the
Federal Facilities title. Others that were discussed earlier in our
discussion of the voluntary cleanup provisions of Title I are equally
applicable here.
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The Bill Fails to Include Adequate Criteria for Approval of State
Programs
Federal legislation must contain standards against which a
State program may be measured, to ensure that any increase in a
State's authority to implement the Federal program will be
commensurate with the State's abilities, experience,
authorities and resources. S. 8 fundamentally departs from the
methods we have traditionally relied on to sanction transfer of
other environmental programs, such as the Clean Water Act and
Safe Drinking Water Act. Many of the considerations that are
relevant to transfers of responsibility under those laws are
equally applicable here: we should build on the experience
under these programs. \28\ S. 8's criteria are inadequate to
distinguish between States that have the capability to assume a
greater role under the Superfund program and those that do not.
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\28\ That is not to say that criteria for approval of State
Superfund programs should be identical to criteria for State approval
under other environmental laws. A major difference arises from the
remedial nature of Superfund, and the existence of the Superfund Trust
Fund. As discussed later, this gives rise to additional considerations
that are unique to Superfund.
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First, S. 8 provides that a State program must be
implemented in a manner that is protective of public health and
the environment. Although this standard is a familiar one, it
is not sufficiently specific to be useful in this context.
Other environmental laws contain Federal floors--minimum
Federal standards to ensure that citizens in all States receive
at least a baseline level of protection. Under other laws, a
State program must meet these minimum standards to be eligible
for assumption of authority under Federal law. \29\ The
standard in S. 8 is too general to ensure a baseline level of
protection, and it lacks the specificity necessary to serve as
an objective standard against which EPA, a court, or the public
may evaluate the adequacy of a State program. Moreover, it does
not provide States adequate notice as to the prerequisites for
transfer of Federal authority.
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\29\ For example, the Safe Drinking Water Act requires that State
regulations be ``no less stringent'' than EPA's regulations.
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In addition, this criterion stops short of requiring that a
State program have requirements that are protective: it
requires only that they be implemented in a protective manner,
which could be considerably more difficult for EPA to evaluate.
This is a projection about the future, but does not guide an
initial determination about whether to approve a program.
Second, S. 8 provides that for a State program to be
authorized, it must have procedures to ensure public notice
and, ``as appropriate,'' opportunity for public comment on
cleanup plans, consistent with section 117 of CERCLA. This is
inadequate to ensure that States whose applications are
approved will provide for public involvement as required under
section 117 of CERCLA, or that the public will have
opportunities to participate in decisions about State cleanups
of NPL sites in their communities to the same extent as they
would if the cleanup were being handled by EPA. As Karen
Florini testified on behalf of the Environmental Defense Fund,
the ``as appropriate'' language is ``a gigantic loophole''
through which one could drive ``the proverbial mack truck.''
Third, S. 8 requires that a State have adequate financial
and personnel resources, organization, and expertise to
implement a hazardous substance response program. Notably
absent is a requirement that the State have comparable
experience. S. 1834, for example, required that the State
demonstrate experience in adequately performing or ensuring
adequate performance of similar response actions.
In addition, the standard is not adequate to ensure that a
State will have adequate resources over the long term. State
capabilities vary over time for reasons that may be beyond
their control. We have been told of several States in which
resources for hazardous waste cleanup programs have been
significantly cut over the past several years. Similarly, many
States have made significant changes to their laws governing
hazardous waste cleanup, which could impact the States'
continued capacity to carry out the Superfund program. But, the
bill does not require that the State demonstrate periodically
that it continues to have adequate resources or that new laws
continue to meet the criteria for approval. Periodic
demonstration that a State continues to have necessary
resources and to meet other criteria is particularly important
in view of the limitations on EPA authority under S. 8: a
State's capacity to run a cleanup program can deteriorate and
the bars on EPA authority may eliminate any Federal backstop.
\30\
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\30\ Although S.8 allows EPA withdrawal of a State program, this
can be a dramatic measure and more than is called for under the
circumstances. Moreover, withdrawal can take significant time, during
which sites may go unaddressed.
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These deficiencies in the approval process are compounded
by additional provisions in the bill. First, S. 8 bars EPA from
imposing any terms or conditions on its approval of a State
application for transfer of authority. This prohibition could
prevent EPA from approving some but not all of the
responsibility that a State seeks in its application for
authorization, where the State has the capacity to manage some
but not all of the activities and site conditions it seeks to
assume. Unlike delegation, where S. 8 would allow EPA to
approve all or part of an application, \31\ it appears that for
authorization EPA must make an all or nothing determination on
an application. It could also result in EPA disapproving an
application despite its determination that the application
would be approvable if a condition were met, such as requiring
that a State adopt a regulation that has only been proposed by
the State. In either event, the State or the public could sue
to challenge EPA's determination. It would seem to be in the
interest of EPA, the States, and the public that EPA have
flexibility to partially approve an application, so that a
State may assume at least a portion of the program, or to add
needed conditions.
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\31\ S. 8 provides that EPA may approve or disapprove a State's
application for delegation ``regarding any or all of the facilities
with respect to which a delegation of authority is requested or with
respect to any or all of the authorities that are requested.'' By
contrast, S. 8 provides only that EPA may ``approve or disapprove'' a
State's application for authorization.
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In addition, the bill establishes an unnecessary and
cumbersome process for EPA to obtain additional information to
make a determination on a State application. EPA is required to
approve or disapprove an application within 120 or 180 days.
Frequently EPA requires additional information before it can
make a determination on a State application. If a State does
not agree to an extension of time (in view of any deficiencies
in the application), then EPA has to either disapprove the
application, which the State can challenge in Court, or EPA can
delay making a determination. In the later case, the State can
sue EPA to compel EPA's determination. It is only once in court
that EPA can ask the court to grant a 90-day extension to allow
EPA to consider additional information. This situation could be
handled in a far more efficient manner, without the litigation
that this provision in S. 8 could promote.
The inadequacy of the process for granting State authority
under S. 8 is most pronounced in the bill's provisions for
``expedited'' approval of at least six States that meet yet to
be promulgated criteria. Under this program, a State program
may be approved without ever having been reviewed by EPA or the
public: if EPA fails to make a determination on a State
application within the 180 day deadline, then the program is
``deemed'' approved. The bill also would bar judicial review of
an ``expedited'' authorization. Ms. Subra, a technical advisor
to several community groups concerning hazardous waste sites in
their communities, points out that this approach could result
in unqualified States being transferred responsibility. She
testified: ``if EPA gets overburdened and States apply, whether
or not they are adequate, whether they have the rules, whether
they have the finances, under default they are going to get the
program.''
The Bill Virtually Eliminates Any Federal Safety Net For Sites
Addressed Under State Programs
Once a State application for authorization or delegation
has been approved, S. 8 severely constrains EPA's ability to
take action at a site in the State program. In particular, it
provides that a State to which responsibility is transferred
shall have ``sole authority'' to perform the transferred
authority, subject to limited exceptions. \32\ It specifically
bars administrative and judicial enforcement actions by EPA or
any other person regarding a matter that is within the scope of
responsibility transferred to a State.
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\32\ We note also that while S. 8 bars citizens from taking
enforcement actions against persons acting under approved State
programs, it provides no circumstances that would reinstate citizens'
rights to sue. Ms. Florini has testified that ``[t]hese limitations are
radical and unwarranted departures from prior law not only under
Superfund, but indeed virtually all Federal environmental programs.''
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In taking away EPA's ability to use its imminent and
substantial endangerment authority, and injecting in its place
heightened standards for EPA action, S. 8 is inconsistent with
other environmental laws, which preserve EPA's ability to take
action using the same standard that would have applied absent a
transfer of authority to a State. \33\
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\33\ A 1995 survey by the Environmental Commissioners of States
showed that between 1994 and 1995, EPA overfiled under such other
environmental laws on only 15 occasions, or on approximately 0.1
percent of State actions.
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There are two exceptions to S. 8's enforcement bar. \34\
Section 130(f)(4)(B)(i) would lift the bar on EPA enforcement
at the State's request. But we cannot condition the protection
of citizens on an expectation that States will always seek
intervention by EPA when needed: experience shows that, for
whatever reasons, States do not always seek EPA assistance. For
example, Ms. Subra testified that her State refused to propose
sites for NPL listing, because it ``did not want the stigma of
hazardous waste sites being on a Federal list,'' and that
``[t]he majority of the National Priorities List sites in
Louisiana were submitted to EPA by citizens groups.'' We are
aware of an instance in another State, where EPA has taken
action at the request of county personnel dissatisfied with
response actions taken by their State.
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\34\ As noted in the discussion of the voluntary cleanup provisions
in Title I, constraints on ``enforcement'' could preclude EPA from
taking a response action.
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Section 130(f)(4)(B)(ii) would lift the enforcement bar if
EPA determines that the State is unwilling or unable to take
appropriate action and that the release constitutes a public
health or environmental emergency, and EPA goes to court and
obtains a declaratory judgment that the State has failed to
make reasonable progress in performing a remedial action at a
facility. We believe these compound conditions will seldom be
met. Even if they could be met, it may be too late to protect
public health and the environment. According to estimates by
the Administrative Office of the U.S. Courts, it can take at
least 18 months for a court to issue a declaratory judgment if
a trial is required, or 13 months, if the action is resolved
prior to trial, but after commencement of discovery.
Also troublesome, the bill limits EPA's ability to use its
removal authorities, which most agree EPA uses successfully. S.
8 requires that EPA provide 48 hours notice, await notice from
the State whether it intends to act, then allow another
reasonable period of time to give the State an opportunity to
act. Only if the Administrator finds a ``public health or
environmental emergency under section 104(a)(4)''--again, a new
standard that will likely be litigated, and an abolition of
EPA's ability to use ``imminent and substantial endangerment''
under section 106--may EPA act without providing notice. Again,
these are untenable options. Forty-eight hours can be critical
in the ``removal'' scenario. Further, as we noted earlier, when
the public is at risk, we ought not to be litigating for the
first time whether a release of hazardous substance meets the
new, heightened threshold of an ``emergency.''
We agree that an appropriate division of responsibility
between EPA and States, which provided a greater role for
States, could enhance efficiency in the cleanup of NPL sites.
But we are concerned that S. 8's method for drawing lines
between State and Federal authorities strike too deeply at the
Federal authorities, potentially at the expense of public
health and the environment.
The Bill Lacks Adequate Safeguards to Conserve the Superfund Trust Fund
The existence of a Trust Fund raises complex issues that
are not posed by transfers of Federal authority under other
Federal environmental laws. S. 8 does not adequately address
these issues. For example, the bill fails to provide safeguards
sufficient to ensure that the Fund is conserved for use at high
risk sites where there are no viable PRPs, and that the
standards for access to the Fund for orphan funding are
consistent across the various States.
For example, to access Trust Fund dollars to finance a
response action, S. 8 requires only that a State certify that
it has been unable to locate any viable PRPs, or that
enforcement measures have been attempted and the remedial
action would be delayed without Federal funding. These
standards are not adequate to ensure that States will maximize
funding from PRPs before seeking Fund dollars to finance a
cleanup. We have been told of instances in which a State has
concluded that there are no viable PRPs at a site, and EPA has
then located viable PRPs who performed multi-million dollar
cleanups. Unless there are safeguards to prevent this type of
occurrence, a State that devotes little effort to obtaining a
cleanup by PRPs could get more Fund money than a State that
devotes the resources necessary for a thorough PRP search and
cleanup negotiations. The other criterion--that enforcement
measures have been attempted and the remedial action would be
delayed without Federal funding--imposes only a minimal
obligation on a State to pursue PRPs before looking to the
Fund. EPA has greatly leveraged the resources of the Fund:
approximately 70 percent of cleanups are financed or performed
by PRPs. Only approximately 30 percent of cleanups are Fund-
financed. This has been critical to EPA's success in getting
cleanup construction complete at more than 500 sites. Any
reform to Superfund should increase, and at a minimum maintain,
this significant level of PRP participation. S. 8 fails to do
so.
S. 8 also fails to ensure that the Fund will not be
inappropriately drawn down through orphan spending in State-run
allocations. For example, one of the criterion for transfer of
authority to a State is that the ``State agrees to exercise its
enforcement authorities to require persons that are potentially
liable under section 107(a), to the extent practicable, to
perform and pay for the response actions.'' This provision is
inadequate to conserve the Fund. Since it requires only that a
State agree to exercise its enforcement authorities to require
PRPs to perform and pay for cleanups, it falls short of
requiring that an authorized State either rely on section 107
of CERCLA, \35\ or actually have and exercise enforcement
authorities that require parties who are liable under CERCLA to
pay for and perform cleanups. This standard would make it
exceedingly difficult for EPA to evaluate whether a State meets
this criterion for authorization, since the requirement only
goes to how the State exercises its authority, not to the
substance of any State law authority. Moreover, if an
authorized State's liability provisions are different from
those under CERCLA, it seems that S. 8 may require that the
State exercise its authority in a way that may be inconsistent
with State law. And, the ``to the extent practicable''
qualifier could further weaken any requirement that an
authorized State pursue parties that are PRPs under CERCLA.
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\35\ The broad requirement that delegated States use State
enforcement authorities potentially creates unnecessary problems, in
view of the fact that today States can and sometimes do rely on Section
107 of CERCLA.
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Opening the Fund to a potentially large number of
additional sovereigns raises many challenging issues as to how
EPA, the Trustee of the Fund, may safeguard the Fund to
maximize the cleanup of hazardous waste sites. Problems are
compounded by the fact that, under S. 8, each State could be
operating under a different liability scheme. For a transfer of
Superfund authority and Fund money to States to succeed, these
issues must be satisfactorily addressed.
We also are concerned that cost recovery provisions in S. 8
are inadequate to maximize recovery of Fund money from PRPs.
The bill would allow the United States to bring a cost recovery
action if a State notifies EPA that it does not intend to do so
itself, or if it fails to do so within a reasonable time. The
bill also provides that a State may retain 25 percent of any
Federal funds it recovers, to provide an incentive for States
to attempt to recover costs from PRPs. These provisions are
deficient in several respects. First, there is not a sufficient
affirmative obligation for States to bring cost recovery
actions: some States may not have the resources to file these
cases, or have other priorities for use of limited resources.
For these States, the 25 percent bonus may not be sufficient
incentive to bring an action. But the United States would not
be able to recover the State costs unless the State had
maintained adequate cost documentation to prove its case, and
there is no obligation that a State maintain this evidence.
Also problematic, there is no requirement that States use the
25 percent bonus for hazardous waste site cleanup. While
creating an incentive for States to recover costs from PRPs may
be appropriate, providing Fund money without limiting its use
to cleanup of Superfund sites is an inappropriate use of the
Fund.
The Bill Does Not Adequately Address the Role of Tribes Under Superfund
At markup Senators Chafee and Baucus offered an amendment
providing that Tribes may seek the same role and authorities as
States under the State Role title. We are pleased that the
amendment passed, but believe that the bill still does not
adequately address the role of Tribes: further amendments to
current law are necessary to expand the role of and address
matters that relate to Tribes in various aspects of the
Superfund program.
COMMUNITY PARTICIPATION
Introduction
At the outset, we want to emphasize the importance of
maximizing community participation in the process of deciding
how to clean up Superfund sites. More than 40 million Americans
live within 4 miles of a Superfund site; it is their health and
livelihoods that are most at stake. Deeohn Ferris, of the
Lawyers' Committee on Civil Rights, put it this way at one of
our first Superfund reform hearings, in 1993: ``Public
participation is essential because it ensures that EPA is
accountable to those whose health it is obligated to protect,
and it is desirable because it enhances the efficiency and
effectiveness of the Superfund program.''
It is not only community members who believe that public
participation improves the Superfund process. Industry
representatives also support early and complete public
participation. Robert N. Burt, Chairman of FMC Corp., testified
on behalf of the Business Roundtable that:
It is the experience of many of our members that
[citizen] involvement can assist in developing remedies
which are truly protective of human health and the
environment, while taking into account the specific
concerns of communities about comparative risks of
alternative remedies. More often than not, citizens are
looking to return Superfund sites to some productive
use where this is consistent with meeting appropriate
health and environmental standards.
The bill that the Committee reported during the 103d
Congress, S. 1834, contained many provisions designed to
increase community participation, and was supported by a wide
range of stakeholders. When S. 8 was introduced, Title III,
which pertains to community participation in the Superfund
decision-making process, contained only three provisions that
would have increased community participation. During subsequent
negotiations, several of our proposals to expand opportunities
for community participation were incorporated into the bill.
These significantly improved the bill. However, the reported
bill still omits several important provisions that would help
to ensure that citizens have meaningful opportunities to
participate in decisions regarding the cleanup of hazardous
waste sites in their communities.
The Bill Fails to Include Important Provisions that Would Increase
Community Participation
First, S. 8 fails to ensure that there will be
opportunities for public participation in the development of
sampling and monitoring plans. Sampling plans are vital to any
efforts to characterize the nature and extent of contamination
at a site; sampling is in some respects the foundation of
remedy selection, since sampling results are relied on in
determining which areas need to be cleaned up. The
effectiveness of a remedy is only as good as the information on
which it is based: so, for example, if a highly contaminated
area is never sampled, or testing is for contaminants other
than those present, then it is far less likely that the remedy
will address those contaminants. Citizen participation at this
early and fundamental stage of Superfund planning is critical.
In addition, citizens should be ensured an opportunity to
review and comment on plans for monitoring during and after
implementation of the remedy. Again, the consequences of
inadequate monitoring--in the wrong locations or for the wrong
contaminants--are significant. And it is the community that
will suffer those consequences.
One of the reasons that community involvement is critical
is that residents may know things about the site that nobody
else knows; after all, they live there. A representative of the
American Public Health Association testified that community
members ``know how a site has been used in the past, who lived
near the site, and who has moved away. This information is
essential to the conduct of studies that help us understand
both the short-term and long-term health effects associated
with a hazardous waste site.'' This is not merely conjecture.
We are aware of sites where community members' knowledge of
companies' historic disposal practices was instrumental in
EPA's identification of the sources of contamination.
In addition, community participation in the development of
sampling plans helps community members to better understand
site conditions, which will in turn enhance their ability to
participate effectively in other remedy decisions. We have been
told about one site where community members were concerned that
an EPA contractor failed to sample white dusty material he
encountered when boring a hole into soil, and sampled only the
soil itself. The community members took their own sample of the
material, had it analyzed, and confirmed that it was DDT.
Because of that experience, EPA and the PRPs had to spend
significant resources in regaining the community's trust that
site sampling had accurately located the sources of
contamination.
Our Substitute would require that EPA seek community input
on sampling and monitoring plans. We believe this would improve
decision-making, increase community confidence in the cleanup
plan, and, in the long run, expedite and reduce the cost of
cleanups. \36\
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\36\ It has been alleged that to allow citizens to conduct sampling
and monitoring could risk worsening site conditions. That issue is
irrelevant to the modest proposal in our Substitute, which would only
ensure that citizens had an opportunity to comment on sampling and
monitoring plans.
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Second, S. 8 fails to include a provision establishing a
central clearinghouse where people may obtain information about
Superfund sites in their States. We have heard repeatedly from
community representatives that they want to participate in the
Superfund process, but that they are often unaware of the
existence of a program like EPA's Technical Assistance Grant
program; or they found the documentation required for the TAG
application overly burdensome. They also made clear that their
failure to, for example, attend a meeting where EPA would be
explaining how to apply for a TAG grant did not indicate a lack
of interest, but rather that they may be holding down more than
one job, and can't meet on an EPA employee's schedule.
We should take affirmative steps to help people benefit
from information and knowledge gained at other sites, rather
than having to start from scratch. The bill that was reported
in the 103d Congress, S. 1834, did this by creating Community
Information Access Offices, or ``CIAOs.'' These were to be
citizen-run offices that would serve as clearinghouses to
provide citizens with information regarding the Superfund sites
in each State. These CIAOs were controversial. Some Committee
members argued that the $25 million authorization was too high
and could overlap or interfere with the activities of State and
local officials.
In response to these arguments, we made a more modest
proposal, which is contained in the Substitute. We reduced the
authorization level to $12 million, and the offices (called
Waste Site Information Offices) would be operated by States
rather than local citizens (unless a State chose not to operate
the office, in which case EPA would). So, in each State, there
would be an office that would serve as a clearinghouse. It
would provide information about how Federal and State hazardous
waste laws work. And it would provide information about the
sites in the State, including information about the location of
each site, the contaminants present, the response actions being
undertaken, any institutional controls that have been
established, and any health studies that have been done. It
also would identify additional sources of information and
explain how people could participate in the decision making
process at the site.
This proposal would help people play a more active role in
decisions that affect them, their families, and their
communities. We are disappointed that it has not been included
in S. 8. As a result, we agree with representatives of
environmental groups, who wrote that ``[t]he bill fails to
establish community-oriented information offices that are
needed to provide meaningful access to information and enhance
communities' ability to participate effectively in cleanup
decisions.''
The Bill Fails to Sufficiently Enhance Public Health Officials'
Involvement in Superfund Decision-Making
CERCLA has always treated cleanup responsibilities and
public health responsibilities distinctly. Evaluation and
prevention of the adverse health effects caused by toxic waste
exposure is one of the primary goals of Superfund. Authority
for these crucial functions is vested in the Agency for Toxic
Substances and Disease Registry (ATSDR), not EPA. Thus, under
CERCLA, EPA samples and analyzes site media, and removes
contaminants from exposure pathways; ATSDR investigates the
acute and chronic health effects of such exposure, and takes
certain actions, or recommends response actions to EPA, that
will mitigate the adverse health effects associated with
exposure.
When S. 8 was introduced, it did not contain any provisions
addressing public health authorities. As with community
involvement, subsequent negotiations resulted in adding
provisions to S. 8 that address public health authorities in
Superfund. However, we are concerned that S. 8 still would fail
to provide an adequate role for ATSDR and other health
officials in Superfund decision-making. This is contrary to the
recommendations of experts, such as the American Public Health
Association, who believe that increased involvement of public
health officials in all aspects of the Superfund process is
important. A representative of APHA testified that ``the full
potential of public health approaches to improve the efficiency
and effectiveness of Superfund has never been fully realized.
To achieve this potential, the Superfund program must require
early, strong, and meaningful involvement of public health
agencies and experts at local hazardous waste sites, beginning
at discovery.''
The bill falls short of this goal in several significant
ways.
First, the bill authorizes only $50 million to ATSDR, $25
million less than the level Congress appropriated in this
fiscal year. Funding for ATSDR should be maintained at current
levels, if not increased. The demands on ATSDR may be
increasing. New data are showing that past exposures to
hazardous substances can cause latent health effects. For
example, in Idaho, ATSDR found that 20 years after the Bunker
Hill site had been closed down, health effects persisted. Adult
women who had worked at the site's smelter were more likely to
report having an increased number of neurologic symptoms and
early menopause. These data show the need for continued
surveillance of populations exposed to hazardous substances,
even after the remedy at a site has been implemented, or
exposure has long since ended. In addition, since the bill's
remedy provisions will result in fewer permanent cleanups and
more hazardous waste left in place, there likely will be more
cases that ATSDR must monitor over the long-run.
Second, the bill fails to authorize ATSDR's study of
additional hazardous substances. Current law requires that
ATSDR prepare toxicological profiles on 275 of the most
commonly found hazardous substances and make those profiles
available to the public, including Federal, State, Tribal, and
local environmental regulators, and local health officials. In
a July, 1997 report, the Environmental Defense Fund estimated
that of the 30,000 chemicals in use today, there are data on
the health effects of less than 10 percent. And experience
shows that some of the most significant heath effects occur as
a result of exposure to uncommon hazardous substances. In Dover
Township, New Jersey, particularly in the Toms River section
(where a former dye- and chemical-manufacturing plant and
illegal toxic dump site are located), children have developed
leukemia and cancers of the brain and central nervous system at
higher-than-normal rates. It is suspected that the cancers are
caused by exposure to acrylonitrile, a rare chemical not
included on the list of the 275 hazardous substances for which
ATSDR is required to prepare toxicological profiles.
It is important that ATSDR be able to fill in some of the
gaps, and provide information on health effects of chemicals,
whether or not those chemicals happen to be on the list of 275
most commonly detected hazardous substances. The Substitute
would have required ATSDR to prepare profiles of additional
substances that have been detected at sites ``and are
determined by the Administrator of ATSDR to be of health
concern.''
Third, S. 8 maintains the requirement that ATSDR perform a
full-blown health assessment in all cases, even though more
tailored activities may make the most sense. For example, in
the methyl parathion cases (in Mississippi and Louisiana, among
other States), ATSDR advised EPA to perform urine testing in
conjunction with its indoor sampling of walls with residuals
from the methyl parathion spraying (although these cases did
not arise at NPL sites, they illustrate the point). These
results allowed EPA to more precisely define the residents who
would need relocation. Accordingly, EPA was able to relocate
far fewer residents (perhaps hundreds fewer) than it had
originally projected, since those residents were not showing
adverse health effects.
To get the most ``bang'' for the clean-up ``buck,'' ATSDR
should have flexibility to determine whether to conduct a
health assessment or more tailored health activity, such as the
type of analysis used for the methyl parathion cases. We
acknowledge that S. 8 would allow ATSDR to conduct health
education activities to make a community aware of steps it may
take to mitigate or prevent exposure. That's a good step. But
our Substitute would have relieved ATSDR of the statutory
obligation to perform a full-blown health assessment at a
particular site, and instead would have allowed it to perform
``other health-related activity.''
Fourth, S. 8 does not provide for full consideration of the
effects of hazardous substances on children and other highly
exposed or highly susceptible subpopulations. ATSDR has
testified that children are likely to experience more exposure
than similarly situated adults because ``they play vigorously
outdoors (splashing, digging, and exploring) and they often
bring food into contaminated areas. They are shorter than
adults which means they breathe dust, soil, and heavy vapors
close to the ground; they are also smaller, which means they
get higher doses per body weight.'' Indeed, the September 29,
1997 New York Times reported that the rate of cancer among
American children has been rising for decades, and ``[a]lthough
the reasons remain unclear, many experts suspect the increase
may be partly the result of growing exposure to new chemicals
in the environment.''
Children are not the only subpopulation more vulnerable to
the effects of exposure. For example, Native American women who
live on a reservation bordering a Superfund site, and whose
diets consisted largely of area fish and wildlife, were found
to have PCBs in their breast milk at levels many times higher
than that of the non-Native American women also living very
close to the Superfund site.
The Substitute would have specifically required that ATSDR
health assessments consider impacts on children and other
highly susceptible or highly exposed subpopulations.
NATURAL RESOURCE DAMAGES
Introduction
As Assistant Commerce Secretary Terry Garcia testified,
``CERCLA was enacted to address the legacy of hazardous
substance contamination created by over 100 years of harmful
disposal practices in this country.'' Its purpose is not only
to protect public health and the environment, but also to
``allow us to reclaim our environment and restore those natural
resources that have been degraded or destroyed by years of
harmful hazardous waste disposal.'' Accordingly, CERCLA
authorizes Federal, State, and Tribal trustees to bring actions
for ``damages for injury to, destruction of, or loss of natural
resources . . . resulting from a release [of hazardous
substances].'' Trustees must use any amounts collected as
damages to restore, replace, or acquire the equivalent of the
damaged natural resources.
At some CERCLA sites, the remedial action that is
undertaken to eliminate threats to human health and the
environment also is sufficient to restore any injured natural
resources. However at other sites, natural resources remain
injured after the remedial action is completed, and further
action is required if the natural resources are to be restored.
Since 1980, the Federal government, at least 18 States, and
several Indian Tribes have brought natural resource damage
claims. Most have been settled quickly and for relatively small
amounts. In 1995, the General Accounting Office found that
Federal trustees had settled 98 natural resource damage cases
under CERCLA, for a total of $106 million. Of those, 48 settled
for no payment, and 36 settled for less than $500,000 each.
In some cases, however, the remaining natural resource
damage is substantial, and large natural resource damage claims
have been brought. An example is the Upper Clark Fork River
Basin in western Montana, which, with its four NPL sites, is
the nation's largest contiguous grouping of NPL sites. In 1995,
Montana's Chief Deputy Attorney General, Chris Tweeten,
testified about natural resource injuries there. Over many
years, mining and smelting operations released millions of tons
of wastes to the air, water, and land over a 150 mile-long
area. ``These wastes,'' he testified, ``not entirely spent of
their metals and metalloids like arsenic, continue to release
hazardous substances into groundwater and surface water,
resulting in contamination and harm to fish and wildlife.''
When the State of Montana assessed the damage to natural
resources in the Basin, Tweeten continued, it found the
following:
Silver Bow Creek, which is nearly 25 miles long,
contains no fish as a result of extremely high
concentrations of metals in the water, in the sediments
of the Creek, and in the floodplain of the Creek.
Although it is not as injured as Silver Bow Creek, 125
miles of the Clark Fork River are also impacted by high
metal concentrations in the river, in sediments, and on
the floodplain. In addition, aquatic insects, upon
which fish feed, are also contaminated. The end result
is that trout populations in the Clark Fork River are
one-sixth what they would be if hazardous substances
had not been released. Floodplain contamination along
Silver Bow Creek and the Clark Fork River is severe and
extensive. More than a thousand acres of floodplain are
denuded of vegetation, and accordingly fail to provide
wildlife habitat, due to the presence of metals. Three-
thousand-four-hundred acres of what were formerly
wetlands have been filled in with contaminated material
and cannot support any life. Seventeen square miles of
mountainous terrain around the city of Anaconda have
been effectively denuded of vegetation and are unable
to support viable wildlife populations. Lastly, some
600,000 acre feet of groundwater in the Basin are
contaminated. Moreover, this volume of groundwater
contamination is expected to continue to expand in
size.
In addition to the Upper Clark Fork River natural resource
damages claim, several other large claims have been settled or
are pending. For example, the Federal Government, the State of
Washington, and several Tribes brought large claims for injury
to Elliot Bay in Washington; the Federal government has brought
a large claim for extensive injury to natural resources off the
Los Angeles Coast due to contamination with PCBs and DDT; and
Federal trustees and the Coeur d'Alene Tribe have brought large
claims with respect to the Coeur d'Alene Basin in Idaho.
Critics have argued that the natural resource damage
program should be reformed. They argue that more emphasis
should be put on restoration rather than assessing monetary
damages, and that coordination between the remedial and natural
resource damage programs, and among trustees, should be
improved. Some also have called for ``reforms'' that go much
further, and that would dramatically weaken the ability of
Federal, State, and Tribal trustees to restore damaged natural
resources.
We agree that some reforms are appropriate. For example, we
support changes to the law to focus the NRD program more
closely on restoration (so long as there is an appropriate
transition provision for cases where significant resources have
been invested under current law). And we support changes to
improve coordination between the CERCLA remediation and NRD
programs and improve coordination among trustees. But we oppose
changes that would deprive the public of full restoration of
damaged natural resources. Unfortunately, despite improvements
from previous versions, the bill would do just that.
The Bill Prevents Trustees From Fully Considering the Intrinsic Value
of Injured Natural Resources
When natural resources are injured, part of the harm
suffered by the public can be measured by lost ``use values''
experienced by those who would have directly used the
resource--for example, if a forest has been denuded and its
streams no longer support fish populations, people have lost
opportunities to hike, hunt, and fish.
But, when a forest, river, or other natural resource is
damaged, we don't just lose the opportunity to use the
resource. We also lose something more. We lose the beauty of a
forest or a clear-running stream. We lose the natural value of
an ecosystem teeming with wildlife. We lose the value of
passing natural treasures along to our grandchildren. We lose
the value of knowing that a natural resource like a remote
wilderness or an endangered bird species exists, even if we do
not ``use'' it directly. Gordon Johnson, New York State
Assistant Attorney General, put it this way:
The value of a natural resource is a combination of its
value as a useful commodity, such as the value of an
aquifer as drinking water or seal pelts as clothing,
and its passive values. These passive values include
the value placed on having a resource available for
future use, and the fact that we repeatedly pay to have
resources available merely because we value their
existence. My State expends thousands of dollars a year
to protect and propagate endangered species, even
though we cannot think of any use for a piping plover,
for instance. We protect whales and will incur costs to
save stranded ones not because the whales are `useful'
as commodities, but because we value their existence.
Unique resources, such as majestic canyons and rivers
like the Grand Canyon and the Hudson River, are
valuable to society not only for their actual uses as
parks, waterways, or recreational facilities, but
because they just are.
These values are referred to as ``passive,'' ``non-use,''
or ``intrinsic'' values. Their validity is well accepted. As a
panel of distinguished economists explained in 1993, ``for at
least the last twenty-five years, economists have recognized
the possibility that individuals who make no active use of a
particular beach, river, bay, or other such natural resource
might, nevertheless, derive satisfaction from its mere
existence, even if they never intend to make active use of
it.''
The consideration of the intrinsic value of natural
resources also has an important practical effect. We agree that
the focus of the program should be on restoring injured natural
resources, including compensatory restoration to reflect losses
that the public suffers until the resource is fully restored.
If, however, in determining the scope of restoration, we
exclude the consideration of intrinsic values, we may wind up
restoring, replacing, or acquiring far less than has been lost.
For example, if the value of a wilderness area is defined as
nothing more than the hiking, hunting, and fishing days that it
supports, we might decline to restore the wilderness area and
instead provide equivalent hiking, hunting, and fishing days by
improving access to some forests and streams near town. The
cost may be lower, but the wilderness area will not be
restored, and the public will be shortchanged. New Mexico
Assistant Attorney General Charles de Saillan testified: ``If
you just consider natural resources based on the value of the
board feet of the timber in the forest, or the market value of
the fish in the stream, you wind up undervaluing the
resources.''
Previous versions of the bill would have prohibited
trustees from considering intrinsic values. For example, the
introduced version of S. 8 provided that ``there shall be no
recovery under this Act for any impairment of nonuse values,''
and the Chairman's Mark contained a similar prohibition
(although referring to ``psychological damages'' rather than
``non-use values''). This prohibition would have dramatically
undermined trustees' ability to restore injured natural
resources. As Terry Garcia testified, ``to exclude non-use
values, as specified in S. 8, means that the public will not be
fairly and fully compensated for loss of resources.''
The bill no longer contains a flat prohibition on the
consideration of intrinsic values. Instead, section 701(b) of
the bill would create new CERCLA section 107(f)(3)(B), which
provides that, in developing restoration measures, a trustee
``may take into consideration unique intrinsic values
associated with the natural resource to justify the selection
of measures that will provide for expedited or enhanced
restoration of the natural resource to replace the intrinsic
values lost, provided that the incremental costs associated
with the measures selected are reasonable.'' Although an
improvement over previous versions, this provision and a
related provision create three potentially serious impediments
to the full consideration of the intrinsic values of damaged
natural resources.
First, section 107(f)(3)(B) permits trustees to consider
only ``unique'' intrinsic values. It is unclear what the word
``unique'' means in this context. For example, a pristine
stretch of river undoubtedly has significant intrinsic values,
but if trustees must prove that those values are somehow
different from the values provided by any other pristine
stretch of river, they may well be prevented from taking them
into account. In any event, natural resource damage cases will
be significantly complicated by litigation over whether the
intrinsic values of a particular resource are unique.
Second, section 107(f)(3)(B) subjects a trustee's
consideration of intrinsic value to a difficult standard.
Trustees may take unique intrinsic values into account only if
they show that the ``incremental costs'' of doing so are
``reasonable.'' This appears to require trustees to perform a
kind of cost-benefit analysis, requiring cumbersome, expensive,
and perhaps impractical economic analyses. Moreover, trustees
could be required to calculate costs while being precluded from
calculating full benefits of a particular restoration option
(because, as discussed above, they can only take ``unique''
intrinsic values into account, and, as discussed below, the
costs of an important method of calculating such benefits,
contingent valuation, are not recoverable). At the very least,
this provision will further complicate natural resource damages
restoration planning and litigation. More significantly, it
will impede trustees' ability to restore damaged resources.
Third, this impact is exacerbated by a provision that
discourages the use of one of the principal methods by which
intrinsic values are measured. Unlike the value of lost uses of
a resource, such as lost hiking or fishing opportunities,
intrinsic values do not have a market price. However,
economists have developed a method to measure intrinsic values
(generally referring to them as non-use or passive use values),
through the use of sample surveys, commonly referred to as
``contingent valuation.'' In a 1996 appendix to a regulation,
the National Oceanic and Atmospheric Administration (NOAA)
described contingent valuation as follows:
The contingent valuation (CV) method determines the
value of goods and services based on the results of
carefully designed surveys. The CV method obtains an
estimate of the total value, including both direct and
passive use values of a good or service by using a
questionnaire designed to objectively collect
information about the respondent's willingness to pay
for the good or service. A CV survey contains three
basic elements: (i) A description of the good/service
to be valued and the context in which it will be
provided, including the method of payment; (ii)
questions regarding the respondent's willingness to pay
for the good or service; and (iii) questions concerning
demographics or other characteristics of the respondent
to interpret and validate survey responses.
Although some industry groups and others have sharply
criticized the use of contingent valuation, many economists
have concluded that it is appropriate. Several years ago, NOAA
convened a panel of economists to review the use of contingent
valuation in natural resource damage cases. In January, 1993,
the panel issued its report. The panel ``start[ed] from the
premise that passive-use loss . . . is a meaningful component
of the total damage resulting from environmental accidents.''
Then the panel rejected the ``extreme arguments'' that
contingent valuation does not provide useful information.
Instead, the panel outlined several guidelines necessary to
assure the adequacy of a contingent valuation study. If done in
conformity with these guidelines, the panel said, ``CV studies
can produce estimates reliable enough to be the starting point
of a judicial process of damage assessment, including passive
use values.''
New section 107(f)(1)(C)(iii) provides that trustees may
recover their reasonable assessment costs, ``but not including
the costs of conducting any type of study relying on the use of
contingent valuation methodology.'' This creates an
inappropriate barrier against the use of a legitimate method of
assessing natural resource damages. Contingent valuation
studies can be expensive, especially under the guidelines
proposed by the NOAA panel, which stress the use of pre-testing
and extensive cross tabulations. If trustees cannot recover the
cost of conducting a contingent valuation survey, they may, as
a practical matter, be precluded from conducting the survey.
That, in turn, may make it impossible for them to demonstrate
the loss of intrinsic values, even when the losses to the
public are severe, either because the trustees will not be able
to determine and document the extent of the lost values, or
because trustees will not be able to show that the incremental
costs of considering those lost values is reasonable.
During the committee markup, Senators Baucus and Moynihan
offered an amendment to delete the provisions that create these
impediments, but the amendment was defeated.
The Bill Fails to Include Changes that Would Strengthen the NRD Program
In addition to making changes that would weaken the NRD
program, the bill fails to make two changes, proposed by
Federal, State, and Tribal trustees, that would strengthen the
program.
The first relates to the judicial review of trustees'
restoration plans. Under current law, when a Federal district
court reviews a trustee's damage assessment, it is not clear
whether the assessment is subject to deferential review based
on the administrative record or instead trial de novo. \37\ The
bill maintains the status quo. In doing so, the bill misses an
opportunity to reduce litigation by resolving the question in
favor of deferential review based on the administrative record.
---------------------------------------------------------------------------
\37\ Both Federal and State trustees have argued that, under
current law, damage assessments should be subject to deferential review
based on the administrative record. At the time of the Committee
markup, only one Federal district court had ruled on the question,
holding that a damage assessment is subject to trial de novo. State of
Montana v. Atlantic Richfield Co., C.V.. Case No. 83-317-HEN-P.H. (D.
Mont., March 3, 1997). After markup, another district court reached a
similar decision. United States v. ASARCO, Inc, No. CV 96-0122-N-ECL
(D. Idaho, March 31, 1998). However, no court of appeals has ruled on
the issue, and it is unsettled.
---------------------------------------------------------------------------
Record review would complement the shift, in this bill,
from an emphasis on assessing damages to an emphasis on
developing an appropriate restoration plan. The development of
a restoration plan involves highly technical biological,
chemical, and toxicological decisions. Such decisions should
largely be based on the trustee's scientific and technical
expertise. This is particularly true in light of the other
changes that the bill makes to the natural resource damage
provisions. The bill adds several new detailed requirements for
natural resource damage restoration planning. For example, new
section 107(f)(3) requires trustees to select measures that
achieve an ``appropriate balance'' among identified factors,
based on the ``best scientific evidence available.'' By failing
to clearly establish record review, and by creating new
detailed requirements for restoration planning, the bill
creates new issues for litigation.
Record review also would improve the restoration planning
process. It would encourage the full involvement of both
responsible parties and the general public. It also would
ensure that the final decisions regarding restoration will be
made by a trustee that considers public views, rather than by a
court which has no obligation to consider such views. New
Mexico Attorney General Tom Udall testified: ``If an
administrative record is mandated, each side will have a strong
incentive to submit its studies and reports into the record to
be considered by the court. A much more open and efficient,
less litigious process will result.'' One example of the
process without record review is an NRD case pending in
California, United States and State of California v. Montrose
Chemical Corp. of California, et al. In that litigation, the
discovery phase has been underway for 8 years.
In the 1986 amendments, Congress subjected CERCLA remedial
actions to record review. The report of the House Committee on
Energy and Commerce explained the reasons for the change as
follows:
Reliance on an administrative record helps assure that
the basis for the response decision is clearly
articulated and open to scrutiny by the public and
responsible parties. It also encourages full
responsible party and public participation in
development of the record before the remedy is
selected. Moreover, limiting judicial review of
response actions to the administrative record expedites
the process of review, avoids the need for time-
consuming and burdensome discovery, reduces litigation
costs, and ensures that the reviewing court's attention
of focused on the . . . criteria used in selecting the
response.
For similar reasons, we agree with the Administration, the
National Governors Association, the National Association of
Attorneys General, and the Council of Western Attorneys General
that the bill should include a provision that, as a resolution
of the National Association of Attorneys General says,
``[c]larifies that in any legal action, restoration decisions
of a natural resource trustee shall be reviewed on the
administrative record and shall be upheld unless found to be
arbitrary and capricious or otherwise not in accordance with
law.'' Our Substitute would have provided for record review.
In addition, the bill fails to address the statute of
limitations for non-NPL sites. Under current law, the statute
of limitations at non-NPL sites has two alternative tests. An
action can be brought within 3 years of either the ``the date
of the discovery of the loss and its connection with the
release in question'' or ``the date on which regulations are
promulgated'' under the natural resource damages provision.
Under the discovery test, it is not clear how courts will
interpret the terms ``discovery of the loss'' and the
``connection with the release.'' This ambiguity generates
unnecessary litigation over the provision's meaning, and
premature filing of natural resource damages claims, because,
as Gordon Johnson testified, ``the trustee may have to bring
suit before he or she has sufficient information to determine
the scope of the injury or to quantify damages.''
To address these problems, our Substitute included a
provision that would have amended the statute of limitations to
provide that actions could be brought within 3 years of the
completion of a damage assessment or comparable restoration
plan (or six years from the date the potentially responsible
party provides funding for an assessment by all trustees). In
addition, the Substitute would have imposed a moratorium on the
filing of any actions until the completion of an assessment
plan.
By failing to include a provision along these lines, the
bill assures that litigation over the current statute of
limitations will continue and that trustees will continue to be
compelled to file claims prematurely.
Some Provisions Require Further Clarification
Several other provisions of the bill are ambiguous and may
require further clarification (or deletion). Two are
particularly significant.
The first provision relates to double recovery. In the 1986
amendments, Congress enacted CERCLA section 107(f), which
provides that there ``shall be no double recovery under this
chapter for natural resource damages . . . for the same release
and natural resource.'' This provision stands for the
straightforward proposition that a party should not have to pay
the same damages twice. For example, if one trustee collects
$100,000 in damages for injuries to a fishery, another trustee
should not be able to come in later and collect another
$100,000 for the same damages. However, as the 1986 conference
report Statement of Managers says, the provision is not
intended ``to prohibit different claims or actions for
different damages stemming from the same injury to the same
natural resource.''
New section 107(f)(1)(D)(ii) revises the current double
recovery provision. The revision may be intended to clarify the
operation of the current provision, without significantly
expanding its scope. The Committee report appears to support
this interpretation. We are concerned, however, that the
language may be interpreted more broadly, to preclude cleanup
and natural resource restoration at many sites and undermine
efforts to coordinate restoration planning with cleanup
efforts. As New York State Assistant Attorney General Gordon
Johnson testified about an earlier version of the double
recovery language (in the August, 1997, Chairman's Mark), one
reading of the new language ``may suggest that anyone who has
recovered response costs which are used to restore an injured
resource--and remedial work often has that consequence,
obviously--cannot recover natural resource damages.''
If this interpretation were upheld, trustees would be
compelled to file NRD claims simultaneously with EPA or a
State's response costs claims, whether or not trustees have had
resource concerns addressed during cleanup or whether trustees
have had the opportunity to determine whether there will be
residual resource injury once response actions are complete.
Response action agencies and natural resource trustees might be
forced into a race to the courthouse to litigate their claim
first. At many sites, trustees would be compelled to file
protective claims before they have had a meaningful opportunity
to determine whether injury will remain on-site after the
conclusion of a response action. This would undermine the goal
of focusing NRD claims on costs of restoring the injured
resources. Further, at the numerous sites where EPA has already
collected response costs, it could be argued that this
provision bars trustees altogether from seeking restoration of
natural resources, to the extent that EPA has collected
response costs arguably addressing injury to a particular
resource.
The second provision relates to releases that occurred
before the enactment of CERCLA. Current law provides that there
is no recovery in any case in which both the release and the
resulting ``damages'' occurred wholly before December 11, 1980.
New section 107(f)(1)(D)(iii) revises this provision, to
provide that there is no recovery in any case in which the
release and the ``injury, destruction, or loss'' occurred
before that date. We are concerned, however, that in light of
the way one court has interpreted the terms ``damages'' and
``injury,'' it could be argued that the change precludes
recovery in any case in which injury, destruction, or loss
began before December 11, 1980, but the damage persists
thereafter. (See, In Re Acushnet River & New Bedford Harbor
Proceedings, 716 F. Supp. 676 (D. Mass. 1989)). Such an
interpretation would extinguish some existing claims. And it
would do so inappropriately, because, as New York State
Assistant Attorney General Gordon Johnson testified, ``[a]t
common law, the creator of a nuisance which continues to cause
damage after its creation still is liable for its abatement.''
The Bill Creates a Special Natural Resource Damages Program for the
Coeur d'Alene Basin that Jeopardizes the Rights of Some Parties
and May Result in Inadequate Restoration
Section 705 of the bill is a free-standing provision of law
relating to the Coeur d'Alene Basin. It directs the Coeur
d'Alene Basin Commission, an entity created under Idaho law, to
recommend a basin restoration plan to the Governor of Idaho.
The Governor may revise the Plan and finalize it. Once the Plan
is in effect, the Governor may enter into enforceable
agreements with potentially responsible parties, whereby those
parties agree to contribute to the implementation of the Plan.
Each agreement must be approved by the Federal district court
under the standard applicable to the approval of consent
decrees (``fair, reasonable, and in the public interest'').
Once an agreement is approved, parties to the agreement may ask
the courts to stay any proceeding that is pending against them
under CERCLA, the Clean Water Act, or the Resource Conservation
and Recovery Act, for certain actions that they took in the
Basin.
We understand that the provision reflects an effort to
expedite cleanup and restoration of the Coeur d'Alene Basin.
But we oppose the provision, primarily for two reasons.
First, the provision allows the Governor of Idaho to
determine the rights of other parties who have important
interests, under Federal law, concerning the Basin. Federal
trustees, EPA, the Coeur d'Alene Tribe, and the State of
Washington all have interests in the cleanup and restoration of
the Basin. Many of the resources at the site are of special
Federal interest, such as migratory birds and Federal lands.
Both Federal trustees and the Tribe have pending natural
resource damage claims. The Tribe's claim, brought in 1991, is
for more than $1 billion. The Federal claim, brought in 1996,
is for several hundred million dollars.
Although Federal, State, and Tribal representatives are
members of the Basin Commission, the bill gives the Governor
the exclusive authority to determine the final Basin plan. It
also gives the Governor the exclusive authority to negotiate
with PRPs the terms of enforceable agreements, which, after
approval by the Federal district court, would have the effect
of extinguishing pending claims. Presumably, the Federal
Trustees, the Tribe, and the State of Washington could comment
to the court about whether the court should approve an
enforceable agreement that the Governor submits. But this is no
substitute for the power to assert their own legal rights,
preserving their discretion to settle on terms they see fit.
Second, the bill does not assure that injured natural
resources will be restored to the same extent as they would
under the general natural resource damages provisions of
CERCLA. Section 705(b) provides that the goals of the Basin
restoration plan are to ``restore, manage, and enhance the
natural recovery'' of the Basin, ``consistent with the
objectives'' of CERCLA, in a cost-effective manner. It is not
clear whether and why this standard differs from the general
standard for restoring injured natural resources. In any event,
it is not clear how the standard could be enforced. For
example, if one of the Federal trustees believed that the
Governor's Plan would not restore, manage, and enhance natural
recovery in a way that was consistent with the objectives of
CERCLA, it is not clear that the trustee would have any way to
directly challenge the adequacy of the Plan.
CONCLUSION
Pulling all of this together, we believe that, despite S.
8's positive provisions, it contains many flaws. The bill:
Lcontains an inadequate preference for
treatment and safeguards for waste left in place;
Lreduces protection of human health by
lowering the current acceptable level of cancer risk
and allowing a waiver of risk-based standards based on
technical impracticability;
Lwill lead to inadequate cleanup of
contaminated water and let clean water become
contaminated;
Lprovides for inappropriate consideration of
cost in cleanup decisions;
Ldiverts resources away from and delays
cleanup through requirements that EPA reconsider past
cleanup decisions and conduct new and sometimes
inappropriate risk assessments;
Lkeeps municipalities, small businesses, and
contributors of small amounts of waste trapped in
Superfund's liability net;
Lpromotes unnecessary litigation and
transaction costs, by requiring settled cases to be
reopened and through other provisions that invite
litigation;
Lcontains overly broad liability exemptions
and limitations, and fails to protect and preserve the
Superfund Trust Fund for cleanup of abandoned sites;
Lwould adversely affect the current program
for providing brownfields assistance;
Lwould bar EPA action at hazardous waste
sites, without adequate safeguards;
Lfails to include adequate criteria for
approval of State programs;
Lvirtually eliminates any Federal safety net
for sites addressed under State programs;
Llacks adequate safeguards to conserve the
Superfund Trust Fund;
Ldoes not adequately address the role of
Tribes under Superfund;
Lfails to include important provisions that
would increase community participation;
Lfails to sufficiently enhance public health
officials' involvement in Superfund decision-making;
Lprevents trustees from fully considering the
intrinsic value of injured natural resources;
Lfails to include changes that would
strengthen the Natural Resource Damages restoration
program; and
Lcreates a special natural resource damages
program for the Coeur d'Alene Basin that jeopardizes
the rights of some parties and may result in inadequate
restoration.
Given these many flaws, we agree with Administrator
Browner's assessment, prior to markup, that S. 8 ``would still
weaken public health and environmental protection, generate new
litigation, delay cleanups, and inappropriately shift cleanup
costs from parties that created toxic waste sites to the
Superfund Trust Fund.''
At the same time, we remain willing to resume negotiations
to develop a Superfund reform bill that makes practical, common
sense reforms and can attract broad bipartisan consensus
support.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: existing law as proposed to
be omitted is printed in bold and enclosed in brackets; new
matter proposed to be added to existing law is printed in
italic; and existing law in which no change is proposed is
shown in roman.
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980 (SUPERFUND) \38\
[As Amended Through P.L. 105-62, October 13, 1997]
AN ACT To provide for liability, compensation, cleanup, and emergency
response for hazardous substances released into the environment and the
cleanup of inactive hazardous waste disposal sites.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act may be cited as the ``Comprehensive Environmental Response,
Compensation, and Liability Act of 1980''.
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\38\ The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601-9675), commonly known as
``Superfund,'' consists of Public Law 96-510 (Dec. 11, 1980) and the
amendments made by subsequent enactments.
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TITLE I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
definitions
Sec. 101. For purpose of this title--
(1) The term ``act of God'' means an unanticipated
grave natural disaster or other natural phenomenon of
an exceptional, inevitable, and irresistible character,
the effects of which could not have been prevented or
avoided by the exercise of due care or foresight.
(2) The term ``Administrator'' means the
Administrator of the United States Environmental
Protection Agency.
(3) The term ``barrel'' means forty-two United
States gallons at sixty degrees Fahrenheit.
(4) The term ``claim'' means a demand in writing
for a sum certain.
(5) The term ``claimant'' means any person who
presents a claim for compensation under this Act.
(6) The term ``damages'' means damages for injury
or loss of natural resources as set forth in section
107(a) or 111(b) of this Act.
(7) The term ``drinking water supply'' means any
raw or finished water source that is or may be used by
a public water system (as defined in the Safe Drinking
Water Act) or as drinking water by one or more
individuals.
(8) The term ``environment'' means (A) the
navigable waters, the waters of the contiguous zone,
and the ocean waters of which the natural resources are
under the exclusive management authority of the United
States under the Fishery Conservation and Management
Act of 1976, and (B) any other surface water, ground
water, drinking water supply, land surface or
subsurface strata, or ambient air within the United
States or under the jurisdiction of the United States.
(9) The term ``facility'' means (A) any building,
structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned
treatment works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be
located; but does not include any consumer product in
consumer use or any vessel.
(10) The term ``federally permitted release'' means
(A) discharges in compliance with a permit under
section 402 of the Federal Water Pollution Control Act,
(B) discharges resulting from circumstances identified
and reviewed and made part of the public record with
respect to a permit issued or modified under section
402 of the Federal Water Pollution Control Act and
subject to a condition of such permit, (C) continuous
or anticipated intermittent discharges from a point
source, identified in a permit or permit application
under section 402 of the Federal Water Pollution
Control Act, which are caused by events occurring
within the scope of relevant operating or treatment
systems, (D) discharges in compliance with a legally
enforceable permit under section 404 of the Federal
Water Pollution Control Act, (E) releases in compliance
with a legally enforceable final permit issued pursuant
to section 3005 (a) through (d) of the Solid Waste
Disposal Act from a hazardous waste treatment, storage,
or disposal facility when such permit specifically
identifies the hazardous substances and makes such
substances subject to a standard of practice, control
procedure or bioassay limitation or condition, or other
control on the hazardous substances in such releases,
(F) any release in compliance with a legally
enforceable permit issued under section 102 of \39\
section 103 of the Marine Protection, Research, and
Sanctuaries Act of 1972, (G) any injection of fluids
authorized under Federal underground injection control
programs or State programs submitted for Federal
approval (and not disapproved by the Administrator of
the Environmental Protection Agency) pursuant to part C
of the Safe Drinking Water Act, (H) any emission into
the air subject to a permit or control regulation under
section 111, section 112, title I part C, title I part
D, or State implementation plans submitted in
accordance with section 110 of the Clean Air Act (and
not disapproved by the Administrator of the
Environmental Protection Agency), including any
schedule or waiver granted, promulgated, or approved
under these sections, (I) any injection of fluids or
other materials authorized under applicable State law
(i) for the purpose of stimulating or treating wells
for the production of crude oil, natural gas, or water,
(ii) for the purpose of secondary, tertiary, or other
enhanced recovery of crude oil or natural gas, or (iii)
which are brought to the surface in conjunction with
the production of crude oil or natural gas and which
are reinjected, (J) the introduction of any pollutant
into a publicly owned treatment works when such
pollutant is specified in and in compliance with
applicable pretreatment standards of section 307 (b) or
(c) of the Clean Water Act and enforceable requirements
in a pretreatment program submitted by a State or
municipality for Federal approval under section 402 of
such Act, and (K) any release of source, special
nuclear, or byproduct material, as those terms are
defined in the Atomic Energy Act of 1954, in compliance
with a legally enforceable license, permit, regulation,
or order issued pursuant to the Atomic Energy Act of
1954.
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\39\ So in law. Probably should be ``or''.
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(11) The term ``Fund'' or ``Trust Fund'' means the
Hazardous Substance Response Fund established by
section 221 of this Act or, in the case of a hazardous
waste disposal facility for which liability has been
transferred under section 107(k) of this Act, the Post-
closure Liability Fund established by section 232 of
this Act.
(12) The term ``ground water'' means water in a
saturated zone or stratum beneath the surface of land
or water.
(13) The term ``guarantor'' means any person, other
than the owner or operator, who provides evidence of
financial responsibility for an owner or operator under
this Act.
(14) The term ``hazardous substance'' means (A) any
substance designated pursuant to section 311(b)(2)(A)
of the Federal Water Pollution Control Act, (B) any
element, compound, mixture, solution, or substance
designated pursuant to section 102 of this Act, (C) any
hazardous waste having the characteristics identified
under or listed pursuant to section 3001 of the Solid
Waste Disposal Act (but not including any waste the
regulation of which under the Solid Waste Disposal Act
has been suspended by Act of Congress), (D) any toxic
pollutant listed under section 307(a) of the Federal
Water Pollution Control Act, (E) any hazardous air
pollutant listed under section 112 of the Clean Air
Act, and (F) any imminently hazardous chemical
substance or mixture with respect to which the
Administrator has taken action pursuant to section 7 of
the Toxic Substances Control Act. The term does not
include petroleum, including crude oil or any fraction
thereof which is not otherwise specifically listed or
designated as a hazardous substance under subparagraphs
(A) through (F) of this paragraph, and the term does
not include natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or
mixtures of natural gas and such synthetic gas).
(15) The term ``navigable waters'' or ``navigable
waters of the United States'' means the waters of the
United States, including the territorial seas.
(16) The term ``natural resources'' means land,
fish, wildlife, biota, air, water, ground water,
drinking water supplies, and other such resources
belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by the United
States (including the resources of the fishery
conservation zone established by the Fishery
Conservation and Management Act of 1976), any State,
local government, or any foreign government, any Indian
Tribe, or, if such resources are subject to a trust
restriction or alienation, any member of an Indian
Tribe.
(17) The term ``offshore facility'' means any
facility of any kind located in, on, or under, any of
the navigable waters of the United States, and any
facility of any kind which is subject to the
jurisdiction of the United States and is located in,
on, or under any other waters, other than a vessel or a
public vessel.
(18) The term ``onshore facility'' means any
facility (including, but not limited to, motor vehicles
and rolling stock) of any kind located in, on, or
under, any land or nonnavigable waters within the
United States.
(19) The term ``otherwise subject to the
jurisdiction of the United States'' means subject to
the jurisdiction of the United States by virtue of
United States citizenship, United States vessel
documentation or numbering, or as provided by
international agreement to which the United States is a
party.
(20)(A) The term ``owner or operator'' means (i) in
the case of a vessel, any person owning, operating, or
chartering by demise, such vessel, (ii) in the case of
an onshore facility or an offshore facility, any person
owning or operating such facility, and (iii) in the
case of any facility, title or control of which was
conveyed due to bankruptcy, foreclosure, tax
delinquency, abandonment, or similar means to a unit of
State or local government, any person who owned,
operated, or otherwise controlled activities at such
facility immediately beforehand. Such term does not
include a person, who, without participating in the
management of a vessel or facility, holds indicia of
ownership primarily to protect his security interest in
the vessel or facility.
(B) In the case of a hazardous substance which has
been accepted for transportation by a common or
contract carrier and except as provided in section
107(a) (3) or (4) of this Act, (i) the term ``owner or
operator'' shall mean such common carrier or other bona
fide for hire carrier acting as an independent
contractor during such transportation, (ii) the shipper
of such hazardous substance shall not be considered to
have caused or contributed to any release during such
transportation which resulted solely from circumstances
or conditions beyond his control.
(C) In the case of a hazardous substance which has
been delivered by a common or contract carrier to a
disposal or treatment facility and except as provided
in section 107(a) (3) or (4) (i) the term ``owner or
operator'' shall not include such common or contract
carrier, and (ii) such common or contract carrier shall
not be considered to have caused or contributed to any
release at such disposal or treatment facility
resulting from circumstances or conditions beyond its
control.
(D) The term ``owner or operator'' does not include
a unit of State or local government which acquired
ownership or control through seizure or otherwise in
connection with law enforcement activity or
involuntarily through bankruptcy, tax delinquency,
abandonment, or other circumstances in which the
government involuntarily acquires title by virtue of
its function as sovereign. The exclusion provided under
this paragraph shall not apply to any State or local
government which has caused or contributed to the
release or threatened release of a hazardous substance
from the facility, and such a State or local government
shall be subject to the provisions of this Act in the
same manner and to the same extent, both procedurally
and substantively, as any nongovernmental entity,
including liability under section 107.
(E) \40\ Exclusion of lenders not
participants in management.--
(i) Indicia of ownership to protect
security.--The term ``owner or
operator'' does not include a person
that is a lender that, without
participating in the management of a
vessel or facility, holds indicia of
ownership primarily to protect the
security interest of the person in the
vessel or facility.
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\40\ So in law. Indentation of subparagraphs (E) through (G) is
incorrect.
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(ii) Foreclosure.--The term ``owner
or operator'' does not include a person
that is a lender that did not
participate in management of a vessel
or facility prior to foreclosure,
notwithstanding that the person--
(I) forecloses on the
vessel or facility; and
(II) after foreclosure,
sells, re-leases (in the case
of a lease finance
transaction), or liquidates the
vessel or facility, maintains
business activities, winds up
operations, undertakes a
response action under section
107(d)(1) or under the
direction of an on-scene
coordinator appointed under the
National Contingency Plan, with
respect to the vessel or
facility, or takes any other
measure to preserve, protect,
or prepare the vessel or
facility prior to sale or
disposition,
if the person seeks to sell, re-lease
(in the case of a lease finance
transaction), or otherwise divest the
person of the vessel or facility at the
earliest practicable, commercially
reasonable time, on commercially
reasonable terms, taking into account
market conditions and legal and
regulatory requirements.
(F) Participation in management.--For
purposes of subparagraph (E)--
(i) the term ``participate in
management''--
(I) means actually
participating in the management
or operational affairs of a
vessel or facility; and
(II) does not include
merely having the capacity to
influence, or the unexercised
right to control, vessel or
facility operations;
(ii) a person that is a lender and
that holds indicia of ownership
primarily to protect a security
interest in a vessel or facility shall
be considered to participate in
management only if, while the borrower
is still in possession of the vessel or
facility encumbered by the security
interest, the person--
(I) exercises
decisionmaking control over the
environmental compliance
related to the vessel or
facility, such that the person
has undertaken responsibility
for the hazardous substance
handling or disposal practices
related to the vessel or
facility; or
(II) exercises control at a
level comparable to that of a
manager of the vessel or
facility, such that the person
has assumed or manifested
responsibility--
(aa) for the
overall management of
the vessel or facility
encompassing day-to-day
decisionmaking with
respect to
environmental
compliance; or
(bb) over all or
substantially all of
the operational
functions (as
distinguished from
financial or
administrative
functions) of the
vessel or facility
other than the function
of environmental
compliance;
(iii) the term ``participate in
management'' does not include
performing an act or failing to act
prior to the time at which a security
interest is created in a vessel or
facility; and
(iv) the term ``participate in
management'' does not include--
(I) holding a security
interest or abandoning or
releasing a security interest;
(II) including in the terms
of an extension of credit, or
in a contract or security
agreement relating to the
extension, a covenant,
warranty, or other term or
condition that relates to
environmental compliance;
(III) monitoring or
enforcing the terms and
conditions of the extension of
credit or security interest;
(IV) monitoring or
undertaking 1 or more
inspections of the vessel or
facility;
(V) requiring a response
action or other lawful means of
addressing the release or
threatened release of a
hazardous substance in
connection with the vessel or
facility prior to, during, or
on the expiration of the term
of the extension of credit;
(VI) providing financial or
other advice or counseling in
an effort to mitigate, prevent,
or cure default or diminution
in the value of the vessel or
facility;
(VII) restructuring,
renegotiating, or otherwise
agreeing to alter the terms and
conditions of the extension of
credit or security interest,
exercising forbearance;
(VIII) exercising other
remedies that may be available
under applicable law for the
breach of a term or condition
of the extension of credit or
security agreement; or
(IX) conducting a response
action under section 107(d) or
under the direction of an on-
scene coordinator appointed
under the National Contingency
Plan,
if the actions do not rise to the level
of participating in management (within
the meaning of clauses (i) and (ii)).
(G) Other terms.--As used in this Act:
(i) Extension of credit.--The term
``extension of credit'' includes a
lease finance transaction--
(I) in which the lessor
does not initially select the
leased vessel or facility and
does not during the lease term
control the daily operations or
maintenance of the vessel or
facility; or
(II) that conforms with
regulations issued by the
appropriate Federal banking
agency or the appropriate State
bank supervisor (as those terms
are defined in section 3 of the
Federal Deposit Insurance Act
(12 U.S.C. 1813) or with
regulations issued by the
National Credit Union
Administration Board, as
appropriate.
(ii) Financial or administrative
function.--The term ``financial or
administrative function'' includes a
function such as that of a credit
manager, accounts payable officer,
accounts receivable officer, personnel
manager, comptroller, or chief
financial officer, or a similar
function.
(iii) Foreclosure; foreclose.--The
terms ``foreclosure'' and ``foreclose''
mean, respectively, acquiring, and to
acquire, a vessel or facility through--
(I)(aa) purchase at sale
under a judgment or decree,
power of sale, or nonjudicial
foreclosure sale;
(bb) a deed in lieu of
foreclosure, or similar
conveyance from a trustee; or
(cc) repossession,
if the vessel or facility was security
for an extension of credit previously
contracted;
(II) conveyance pursuant to
an extension of credit
previously contracted,
including the termination of a
lease agreement; or
(III) any other formal or
informal manner by which the
person acquires, for subsequent
disposition, title to or
possession of a vessel or
facility in order to protect
the security interest of the
person.
(iv) Lender.--The term ``lender''
means--
(I) an insured depository
institution (as defined in
section 3 of the Federal
Deposit Insurance Act (12
U.S.C. 1813));
(II) an insured credit
union (as defined in section
101 of the Federal Credit Union
Act (12 U.S.C. 1752));
(III) a bank or association
chartered under the Farm Credit
Act of 1971 (12 U.S.C. 2001 et
seq.);
(IV) a leasing or trust
company that is an affiliate of
an insured depository
institution;
(V) any person (including a
successor or assignee of any
such person) that makes a bona
fide extension of credit to or
takes or acquires a security
interest from a nonaffiliated
person;
(VI) the Federal National
Mortgage Association, the
Federal Home Loan Mortgage
Corporation, the Federal
Agricultural Mortgage
Corporation, or any other
entity that in a bona fide
manner buys or sells loans or
interests in loans;
(VII) a person that insures
or guarantees against a default
in the repayment of an
extension of credit, or acts as
a surety with respect to an
extension of credit, to a
nonaffiliated person; and
(VIII) a person that
provides title insurance and
that acquires a vessel or
facility as a result of
assignment or conveyance in the
course of underwriting claims
and claims settlement.
(v) Operational function.--The term
``operational function'' includes a
function such as that of a facility or
plant manager, operations manager,
chief operating officer, or chief
executive officer.
(vi) Security interest.--The term
``security interest'' includes a right
under a mortgage, deed of trust,
assignment, judgment lien, pledge,
security agreement, factoring
agreement, or lease and any other right
accruing to a person to secure the
repayment of money, the performance of
a duty, or any other obligation by a
nonaffiliated person.
(H) Liability of contractors.--
(i) In general.--The term ``owner
or operator'' does not include a
response action contractor (as defined
in section 119(e)).
(ii) Liability limitations.--A
person described in clause (i) shall
not, in the absence of negligence by
the person, be considered to--
(I) cause or contribute to
any release or threatened
release of a hazardous
substance, pollutant, or
contaminant;
(II) arrange for disposal
or treatment of a hazardous
substance, pollutant, or
contaminant;
(III) arrange with a
transporter for transport or
disposal or treatment of a
hazardous substance, pollutant,
or contaminant; or
(IV) transport a hazardous
substance, pollutant, or
contaminant.
(iii) Exceptions.--This
subparagraph does not apply--
(I) to a person that is
potentially responsible under
section 106 or 107 other than a
person that is associated
solely with the provision of a
service relating to a response
action; or
(II) with respect to
liability for a facility at
which a response action
contractor did not perform a
response action.
(I) Religious, charitable, scientific, and
educational organizations.--The term ``owner or
operator'' includes an organization described
in section 501(c)(3) of the Internal Revenue
Code of 1986 that is organized and operated
exclusively for religious, charitable,
scientific, or educational purposes and that
holds legal or equitable title to a vessel or
facility.
(21) The term ``person'' means an individual, firm,
corporation, association, partnership, consortium,
joint venture, commercial entity, United States
Government, State, municipality, commission, political
subdivision of a State, or any interstate body.
(22) The term ``release'' means any spilling,
leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or
disposing into the environment (including the
abandonment or discarding of barrels, containers, and
other closed receptacles containing any hazardous
substance or pollutant or contaminant), but excludes
(A) any release which results in exposure to persons
solely within a workplace, with respect to a claim
which such persons may assert against the employer of
such persons, (B) emissions from the engine exhaust of
a motor vehicle, rolling stock, aircraft, vessel, or
pipeline pumping station engine, (C) release of source,
byproduct, or special nuclear material from a nuclear
incident, as those terms are defined in the Atomic
Energy Act of 1954, if such release is subject to
requirements with respect to financial protection
established by the Nuclear Regulatory Commission under
section 170 of such Act, or, for the purposes of
section 104 of this title or any other response action,
any release of source byproduct, or special nuclear
material from any processing site designated under
section 102(a)(1) or 302(a) of the Uranium Mill
Tailings Radiation Control Act of 1978, and (D) the
normal application of fertilizer.
(23) The terms \41\ ``remove'' or ``removal'' means
the cleanup or removal of released hazardous substances
from the environment, such actions as may be necessary
taken in the event of the threat of release of
hazardous substances into the environment, such actions
as may be necessary to monitor, assess, and evaluate
the release or threat of release of hazardous
substances, the disposal of removed material, or the
taking of such other actions as may be necessary to
prevent, minimize, or mitigate damage to the public
health or welfare or to the environment, which may
otherwise result from a release or threat of release.
The term includes, in addition, without being limited
to, security fencing or other measures to limit access,
provision of alternative water supplies, temporary
evacuation and housing of threatened individuals not
otherwise provided for, action taken under section
104(b) of this Act, and any emergency assistance which
may be provided under the Disaster Relief and Emergency
Assistance Act. \42\
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\41\ So in law. Probably should be ``term''.
\42\ Should refer to the ``Robert T. Stafford Disaster Relief and
Emergency Assistance Act'', pursuant to the amendment to the short
title of such Act made by section 102 of Public Law 100-707.
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(24) The terms \1\ ``remedy'' or ``remedial
action'' means those actions consistent with permanent
remedy taken instead of or in addition to removal
actions in the event of a release or threatened release
of a hazardous substance into the environment, to
prevent or minimize the release of hazardous substances
so that they do not migrate to cause substantial danger
to present or future public health or welfare or the
environment. The term includes, but is not limited to,
such actions at the location of the release as storage,
confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization,
cleanup of released hazardous substances and associated
contaminated materials, recycling or reuse, diversion,
destruction, segregation of reactive wastes, dredging
or excavations, repair or replacement of leaking
containers, collection of leachate and runoff, onsite
treatment or incineration, provision of alternative
water supplies, and any monitoring reasonably required
to assure that such actions protect the public health
and welfare and the environment. The term includes the
costs of permanent relocation of residents and
businesses and community facilities where the President
determines that, alone or in combination with other
measures, such relocation is more cost-effective than
and environmentally preferable to the transportation,
storage, treatment, destruction, or secure disposition
offsite of hazardous substances, or may otherwise be
necessary to protect the public health or welfare; the
term includes offsite transport and offsite storage,
treatment, destruction, or secure disposition of
hazardous substances and associated contaminated
materials.
(25) The terms \43\ ``respond'' or ``response''
means remove, removal, remedy, and remedial action;,
\44\ all such terms (including the terms ``removal''
and ``remedial action'') include enforcement activities
related thereto.
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\43\ So in law. Probably should be ``term''.
\44\ So in law.
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(26) The terms \1\ ``transport'' or
``transportation'' means the movement of a hazardous
substance by any mode, including a hazardous liquid
pipeline facility (as defined in section 60101(a) of
title 49, United States Code), and in the case of a
hazardous substance which has been accepted for
transportation by a common or contract carrier, the
term ``transport'' or ``transportation'' shall include
any stoppage in transit which is temporary, incidental
to the transportation movement, and at the ordinary
operating convenience of a common or contract carrier,
and any such stoppage shall be considered as a
continuity of movement and not as the storage of a
hazardous substance.
(27) The terms ``United States'' and ``State''
include the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the United States Virgin Islands,
the Commonwealth of the Northern Marianas, and any
other territory or possession over which the United
States has jurisdiction.
(28) The term ``vessel'' means every description of
watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on
water.
(29) The terms ``disposal'', ``hazardous waste'',
and ``treatment'' shall have the meaning provided in
section 1004 of the Solid Waste Disposal Act.
(30) The terms ``territorial sea'' and ``contiguous
zone'' shall have the meaning provided in section 502
of the Federal Water Pollution Control Act.
(31) The term ``national contingency plan'' means
the national contingency plan published under section
311(c) of the Federal Water Pollution Control Act or
revised pursuant to section 105 of this Act.
(32) The terms \1\ ``liable'' or ``liability''
under this title shall be construed to be the standard
of liability which obtains under section 311 of the
Federal Water Pollution Control Act.
(33) The term ``pollutant or contaminant'' shall
include, but not be limited to, any element, substance,
compound, or mixture, including disease-causing agents,
which after release into the environment and upon
exposure, ingestion, inhalation, or assimilation into
any organism, either directly from the environment or
indirectly by ingestion through food chains, will or
may reasonably be anticipated to cause death, disease,
behavioral abnormalities, cancer, genetic mutation,
physiological malfunctions (including malfunctions in
reproduction) or physical deformations, in such
organisms or their offspring; except that the term
``pollutant or contaminant'' shall not include
petroleum, including crude oil or any fraction thereof
which is not otherwise specifically listed or
designated as a hazardous substance under subparagraphs
(A) through (F) of paragraph (14) and shall not include
natural gas, liquefied natural gas, or synthetic gas of
pipeline quality (or mixtures of natural gas and such
synthetic gas).
(34) The term ``alternative water supplies''
includes, but is not limited to, drinking water and
household water supplies.
(35)(A) The term ``contractual relationship'', for
the purpose of section 107(b)(3) includes, but is not
limited to, land contracts, [deeds or] deeds,
easements, leases, or other instruments transferring
title or possession, unless the real property on which
the facility concerned is located was acquired by the
defendant after the disposal or placement of the
hazardous substance on, in, or at the facility, and one
or more of the circumstances described in clause (i),
(ii), or (iii) is also established by the defendant by
a preponderance of the evidence:
(i) At the time the defendant acquired the
facility the defendant did not know and had no
reason to know that any hazardous substance
which is the subject of the release or
threatened release was disposed of on, in, or
at the facility.
(ii) The defendant is a government entity
which acquired the facility by escheat, or
through any other involuntary transfer or
acquisition, or through the exercise of eminent
domain authority by purchase or condemnation.
(iii) The defendant acquired the facility
by inheritance or bequest.
In addition to establishing the foregoing, the
defendant must establish that [he] the defendant has
satisfied the requirements of section 107(b)(3) (a) and
(b)[.], has provided full cooperation, assistance, and
facility access to the persons that are responsible for
response actions at the facility, including the
cooperation and access necessary for the installation,
integrity, operation, and maintenance of any complete
or partial response action at the facility, and has
taken no action that impeded the effectiveness or
integrity of any institutional control employed under
section 121 at the facility.
[(B) To establish that the defendant had no reason
to know, as provided in clause (i) of subparagraph (A)
of this paragraph, the defendant must have undertaken,
at the time of acquisition, all appropriate inquiry
into the previous ownership and uses of the property
consistent with good commercial or customary practice
in an effort to minimize liability. For purposes of the
preceding sentence the court shall take into account
any specialized knowledge or experience on the part of
the defendant, the relationship of the purchase price
to the value of the property if uncontaminated,
commonly known or reasonably ascertainable information
about the property, the obviousness of the presence or
likely presence of contamination at the property, and
the ability to detect such contamination by appropriate
inspection.]
(B) Reason to know.--
(i) All appropriate inquiries.--To
establish that the defendant had no reason to
know of the matter described in subparagraph
(A)(i), the defendant must show that--
(I) at or prior to the date on
which the defendant acquired the
facility, the defendant undertook all
appropriate inquiries into the previous
ownership and uses of the facility in
accordance with generally accepted good
commercial and customary standards and
practices; and
(II) the defendant exercised
appropriate care with respect to each
hazardous substance found at the
facility by taking reasonable steps to
stop any continuing release, prevent
any threatened future release and
prevent or limit human or natural
resource exposure to any previously
released hazardous substance.
(ii) Standards and practices.--The
Administrator shall by regulation establish as
standards and practices for the purpose of
clause (i)--
(I) the American Society for
Testing and Materials (ASTM) Standard
E1527-94, entitled Standard Practice
for Environmental Site Assessments:
Phase I Environmental Site Assessment
Process; or
(II) alternative standards and
practices under clause (iii).
(iii) Alternative standards and
practices.--
(I) In general.--The Administrator
may by regulation issue alternative
standards and practices or designate
standards developed by other
organizations than the American Society
for Testing and Materials after
conducting a study of commercial and
industrial practices concerning the
transfer of real property in the United
States.
(II) Considerations.--In issuing or
designating alternative standards and
practices under subclause (I), the
Administrator shall consider including
each of the following:
(aa) The results of an
inquiry by an environmental
professional.
(bb) Interviews with past
and present owners, operators,
and occupants of the facility
and the facility's real
property for the purpose of
gathering information regarding
the potential for contamination
at the facility and the
facility's real property.
(cc) Reviews of historical
sources, such as chain of title
documents, aerial photographs,
building department records,
and land use records to
determine previous uses and
occupancies of the real
property since the property was
first developed.
(dd) Searches for recorded
environmental cleanup liens,
filed under Federal, State, or
local law, against the facility
or the facility's real
property.
(ee) Reviews of Federal,
State, and local government
records (such as waste disposal
records), underground storage
tank records, and hazardous
waste handling, generation,
treatment, disposal, and spill
records, concerning
contamination at or near the
facility or the facility's real
property.
(ff) Visual inspections of
the facility and facility's
real property and of adjoining
properties.
(gg) Specialized knowledge
or experience on the part of
the defendant.
(hh) The relationship of
the purchase price to the value
of the property if the property
was uncontaminated.
(ii) Commonly known or
reasonably ascertainable
information about the property.
(jj) The degree of
obviousness of the presence or
likely presence of
contamination at the property,
and the ability to detect such
contamination by appropriate
investigation.
(iv) Site inspection and title search.--In
the case of property for residential use or
other similar use purchased by a
nongovernmental or noncommercial entity, a
facility inspection and title search that
reveal no basis for further investigation shall
be considered to satisfy the requirements of
this subparagraph.
(C) Nothing in this paragraph or in section
107(b)(3) shall diminish the liability of any previous
owner or operator of such facility who would otherwise
be liable under this Act. Notwithstanding this
paragraph, if the defendant obtained actual knowledge
of the release or threatened release of a hazardous
substance at such facility when the defendant owned the
real property and then subsequently transferred
ownership of the property to another person without
disclosing such knowledge, such defendant shall be
treated as liable under section 107(a)(1) and no
defense under section 107(b)(3) shall be available to
such defendant.
(D) Nothing in this paragraph shall affect the
liability under this Act of a defendant who, by any act
or omission, caused or contributed to the release or
threatened release of a hazardous substance which is
the subject of the action relating to the facility.
(36) The term ``Indian tribe'' means any Indian
tribe, band, nation, or other organized group or
community, including any Alaska Native village but not
including any Alaska Native regional or village
corporation, which is recognized as eligible for the
special programs and services provided by the United
States to Indians because of their status as Indians.
(37)(A) The term [``service station dealer'']
``service station or automobile dealer'' means any
person--
(i) who owns or operates a motor vehicle
service station, filling station, garage,
dealership, or similar retail establishment
engaged in the business of selling, repairing,
or servicing motor vehicles, where a
significant percentage of the gross revenue of
the establishment is derived from the fueling,
repairing, [or servicing] servicing, or selling
of motor vehicles, and
(ii) who accepts for collection,
accumulation, and delivery to an oil recycling
facility, recycled oil that (I) has been
removed from the engine of a light duty motor
vehicle or household appliances by the owner of
such vehicle or appliances, and (II) is
presented, by such owner, to such person for
collection, accumulation, and delivery to an
oil recycling facility.
(B) For purposes of [section 114(c)] section
114(b), the term [``service station dealer''] service
station or automobile dealer shall, notwithstanding the
provisions of subparagraph (A), include any government
agency that establishes a facility solely for the
purpose of accepting recycled oil that satisfies the
criteria set forth in subclauses (I) and (II) of
subparagraph (A)(ii), and, with respect to recycled oil
that satisfies the criteria set forth in subclauses (I)
and (II), owners or operators of refuse collection
services who are compelled by State law to collect,
accumulate, and deliver such oil to an oil recycling
facility.
(C) The President shall promulgate regulations
regarding the determination of what constitutes a
significant percentage of the gross revenues of an
establishment for purposes of this paragraph.
(38) The term ``incineration vessel'' means any
vessel which carries hazardous substances for the
purpose of incineration of such substances, so long as
such substances or residues of such substances are on
board.
(39) Qualifying state voluntary response program.--
The term ``qualifying State voluntary response
program'' means a State program that includes the
elements described in section 128(b).
(40) Bona fide prospective purchaser.--The term
``bona fide prospective purchaser'' means a person that
acquires ownership of a facility after the date of
enactment of this paragraph, or a tenant of such a
person, that establishes each of the following by a
preponderance of the evidence:
(A) Disposal prior to acquisition.--All
deposition of hazardous substances at the
facility occurred before the person acquired
the facility.
(B) Inquiries.--
(i) In general.--The person made
all appropriate inquiries into the
previous ownership and uses of the
facility and the facility's real
property in accordance with generally
accepted good commercial and customary
standards and practices.
(ii) Standards and practices.--The
standards and practices referred to in
paragraph (35)(B)(ii) or those issued
or adopted by the Administrator under
that paragraph shall be considered to
satisfy the requirements of this
subparagraph.
(iii) Residential use.--In the case
of property for residential or other
similar use purchased by a
nongovernmental or noncommercial
entity, a facility inspection and title
search that reveal no basis for further
investigation shall be considered to
satisfy the requirements of this
subparagraph.
(C) Notices.--The person provided all
legally required notices with respect to the
discovery or release of any hazardous
substances at the facility.
(D) Care.--The person exercised appropriate
care with respect to each hazardous substance
found at the facility by taking reasonable
steps to stop any continuing release, prevent
any threatened future release and prevent or
limit human or natural resource exposure to any
previously released hazardous substance.
(E) Cooperation, assistance, and access.--
The person has not failed to substantially
comply with the requirement stated in
subsection (y) with respect to the facility.
(F) No affiliation.--The person is not
affiliated through any familial or corporate
relationship with any person that is or was a
party potentially responsible for response
costs at the facility.
(41) ATSDR.--The term ``ATSDR'' means the Agency
for Toxic Substances and Disease Registry.
(42) Technically impracticable.--The term
``technically impracticable'' means impracticable due
to engineering infeasibility or unreliability or
inordinate costs.
(43) Beneficial use.--The term ``beneficial use''
means the use of land on completion of a response
action in a manner that confers economic, social,
environmental, conservation, or aesthetic benefit.
(44) Codisposal landfill.--The term ``codisposal
landfill'' means a landfill that--
(A) was listed on the National Priorities
List as of January 1, 1997;
(B) received for disposal municipal solid
waste or sewage sludge; and
(C) may also have received, before the
effective date of requirements under subtitle C
of the Solid Waste Disposal Act (42 U.S.C. 6921
et seq.), any hazardous waste, if the landfill
contains predominantly municipal solid waste or
sewage sludge that was transported to the
landfill from outside the facility.
(45) Municipal solid waste.--
(A) In general.--The term ``municipal solid
waste'' means waste material generated by--
(i) a household (such as a single-
or multi-family residence) or a public
lodging (such as a hotel or motel); or
(ii) a commercial, institutional,
or industrial source, to the extent
that--
(I) the waste material is
substantially similar to waste
normally generated by a
household or public lodging
(without regard to differences
in volume); or
(II) the waste material is
collected and disposed of with
other municipal solid waste or
sewage sludge and, regardless
of when generated, would be
conditionally exempt small
quantity generator waste under
the regulation issued under
section 3001(d) of the Solid
Waste Disposal Act (42 U.S.C.
6921(d)).
(B) Inclusions.--The term ``municipal solid
waste'' includes food and yard waste, paper,
clothing, appliances, consumer product
packaging, disposable diapers, office supplies,
cosmetics, glass and metal food containers,
elementary or secondary school science
laboratory waste, and household hazardous
waste.
(C) Exclusions.--The term ``municipal solid
waste'' does not include combustion ash
generated by resource recovery facilities or
municipal incinerators or waste from
manufacturing or processing (including
pollution control) operations that is not
described in subclause (I) or (II).
(46) Municipality.--
(A) In general.--The term ``municipality''
means a political subdivision of a State
(including a city, county, village, town,
township, borough, parish, school district,
sanitation district, water district, or other
public entity performing local governmental
functions).
(B) Inclusions.--The term ``municipality''
includes a natural person acting in the
capacity of an official, employee, or agent of
any entity described in subparagraph (A) in the
performance of a governmental function.
(47) Sewage sludge.--The term ``sewage sludge''
means solid, semisolid, or liquid residue removed
during the treatment of municipal waste water, domestic
sewage, or other waste water at or by publicly owned
treatment works.
(48) Consuming facility.--The term ``consuming
facility' means a facility at which recyclable material
is handled, processed, reclaimed, or otherwise managed.
(49) Recyclable material.--
(A) In general.--The term ``recyclable
material' means--
(i) scrap glass, paper, plastic,
rubber, or textile;
(ii) scrap metal; and
(iii) spent batteries.
(B) Inclusions.--The term ``recyclable
material' includes small amounts of any type of
material that is incident to or adherent to
material described in subparagraph (A) as a
result of the normal and customary use of the
material before the material becomes scrap.
(C) Exclusions.--The term ``recyclable
material' does not include--
(i) a shipping container that--
(I) has (or, when intact,
had) a capacity of not less
than 30 and not more than 3,000
liters; and
(II) has any hazardous
substance contained in or
adherent to it (not including
any small pieces of metal that
may remain after a hazardous
substance has been removed from
the container or any alloy or
other material that may be
chemically or metallurgically
bonded in the container
itself);
(ii) any material described in
subparagraph (A) that the Administrator
may by regulation exclude from the
meaning of the term; or
(iii) a whole tire.
(50) Scrap metal.--
(A) In general.--The term ``scrap metal'
means--
(i) a bit or piece of a metal part
(such as a bar, turning, fine, rod,
sheet, or wire);
(ii) material comprised of metal
pieces that may be combined with bolts
or soldering (such as a radiator,
automobile, or railroad boxcar); or
(iii) a metal byproduct of copper
and a copper-based alloy that--
(I) is not 1 of the primary
products of a secondary
production process;
(II) is not solely or
separately produced by the
production process;
(III) is not stored in a
pile or surface impoundment;
and
(IV) is sold to another
recycler that is not
speculatively accumulating such
metal byproducts;
which, when worn or superfluous, can be
recycled.
(B) Speculative accumulation.--For the
purposes of a sale under subparagraph
(A)(iii)(IV), a recycler to which a metal
byproduct described in subparagraph (A)(iii) is
sold shall be considered to be accumulating the
metal byproduct speculatively if 75 percent of
more of the mass of the metal byproducts
purchased by the recycler during the 12-month
period beginning on the date of the sale is not
reprocessed.
[42 U.S.C. 9601]
reportable quantities and additional designations
Sec. 102. (a) The Administrator shall promulgate and
revise as may be appropriate, regulations designating as
hazardous substances, in addition to those referred to in
section 101(14) of this title, such elements, compounds,
mixtures, solutions, and substances which, when released into
the environment may present substantial danger to the public
health or welfare or the environment, and shall promulgate
regulations establishing that quantity of any hazardous
substance the release of which shall be reported pursuant to
section 103 of this title. The Administrator may determine that
one single quantity shall be the reportable quantity for any
hazardous substance, regardless of the medium into which the
hazardous substance is released.
For all hazardous substances for which proposed
regulations establishing reportable quantities were published
in the Federal Register under this subsection on or before
March 1, 1986, the Administrator shall promulgate under this
subsection final regulations establishing reportable quantities
not later than December 31, 1986. For all hazardous substances
for which proposed regulations establishing reportable
quantities were not published in the Federal Register under
this subsection on or before March 1, 1986, the Administrator
shall publish under this subsection proposed regulations
establishing reportable quantities not later than December 31,
1986, and promulgate final regulations under this subsection
establishing reportable quantities not later than April 30,
1988.
(b) Unless and until superseded by regulations
establishing a reportable quantity under subsection (a) of this
section for any hazardous substance as defined in section
101(14) of this title, (1) a quantity of one pound, or (2) for
those hazardous substances for which reportable quantities have
been established pursuant to section 311(b)(4) of the Federal
Water Pollution Control Act, such reportable quantity, shall be
deemed that quantity, the release of which requires
notification pursuant to section 103 (a) or (b) of this title.
[42 U.S.C. 9602]
notices, penalties
Sec. 103. (a) Any person in charge of a vessel or an
offshore or an onshore facility shall, as soon as he has
knowledge of any release (other than a federally permitted
release) of a hazardous substance from such vessel or facility
in quantities equal to or greater than those determined
pursuant to section 102 of this title, immediately notify the
National Response Center established under the Clean Water Act
of such release. The National Response Center shall convey the
notification expeditiously to all appropriate Government
agencies, including the Governor of any affected State.
(b) Any person--
(1) in charge of a vessel from which a hazardous
substance is released, other than a federally permitted
release, into or upon the navigable waters of the
United States, adjoining shorelines, or into or upon
the waters of the contiguous zone, or
(2) in charge of a vessel from which a hazardous
substance is released, other than a federally permitted
release, which may affect natural resources belonging
to, appertaining to, or under the exclusive management
authority of the United States (including resources
under the Fishery Conservation and Management Act of
1976), and who is otherwise subject to the jurisdiction
of the United States at the time of the release, or
(3) in charge of a facility from which a hazardous
substance is released, other than a federally permitted
release, in a quantity equal to or greater than that
determined pursuant to section 102 of this title who
fails to notify immediately the appropriate agency of
the United States Government as soon as he has
knowledge of such release or who submits in such a
notification any information which he knows to be false
or misleading shall, upon conviction, be fined in
accordance with the applicable provisions of title 18
of the United States Code or imprisoned for not more
than 3 years (or not more than 5 years in the case of a
second or subsequent conviction), or both. Notification
received pursuant to this subsection or information
obtained by the exploitation of such notification shall
not be used against any such person in any criminal
case, except a prosecution for perjury or for giving a
false statement.
(c) Within one hundred and eighty days after the
enactment of this Act, any person who owns or operates or who
at the time of disposal owned or operated, or who accepted
hazardous substances for transport and selected, a facility at
which hazardous substances (as defined in section 101(14)(C) of
this title) are or have been stored, treated, or disposed of
shall, unless such facility has a permit issued under, or has
been accorded interim status under, subtitle C of the Solid
Waste Disposal Act, notify the Administrator of the
Environmental Protection Agency of the existence of such
facility, specifying the amount and type of any hazardous
substance to be found there, and any known, suspected, or
likely releases of such substances from such facility. The
Administrator may prescribe in greater detail the manner and
form of the notice and the information included. The
Administrator shall notify the affected State agency, or any
department designated by the Governor to receive such notice,
of the existence of such facility. Any person who knowingly
fails to notify the Administrator of the existence of any such
facility shall, upon conviction, be fined not more than
$10,000, or imprisoned for not more than one year, or both. In
addition, any such person who knowingly fails to provide the
notice required by this subsection shall not be entitled to any
limitation of liability or to any defenses to liability set out
in section 107 of this Act: Provided, however, That
notification under this subsection is not required for any
facility which would be reportable hereunder solely as a result
of any stoppage in transit which is temporary, incidental to
the transportation movement, or at the ordinary operating
convenience of a common or contract carrier, and such stoppage
shall be considered as a continuity of movement and not as the
storage of a hazardous substance. Notification received
pursuant to this subsection or information obtained by the
exploitation of such notification shall not be used against any
such person in any criminal case, except a prosecution for
perjury or for giving a false statement.
(d)(1) The Administrator of the Environmental Protection
Agency is authorized to promulgate rules and regulations
specifying, with respect to--
(A) the location, title, or condition of a
facility, and
(B) the identity, characteristics, quantity,
origin, or condition (including containerization and
previous treatment) of any hazardous substances
contained or deposited in a facility;
the records which shall be retained by any person required to
provide the notification of a facility set out in subsection
(c) of this section. Such specification shall be in accordance
with the provisions of this subsection.
(2) Beginning with the date of enactment of this Act, for
fifty years thereafter or for fifty years after the date of
establishment of a record (whichever is later), or at any such
earlier time as a waiver if obtained under paragraph (3) of
this subsection, it shall be unlawful for any such person
knowingly to destroy, mutilate, erase, dispose of, conceal, or
otherwise render unavailable or unreadable or falsify any
records identified in paragraph (1) of this subsection. Any
person who violates this paragraph shall, upon conviction, be
fined in accordance with the applicable provisions of title 18
of the United States Code or imprisoned for not more than 3
years (or not more than 5 years in the case of a second or
subsequent conviction), or both.
(3) At any time prior to the date which occurs fifty
years after the date of enactment of this Act, any person
identified under paragraph (1) of this subsection may apply to
the Administrator of the Environmental Protection Agency for a
waiver of the provisions of the first sentence of paragraph (2)
of this subsection. The Administrator is authorized to grant
such waiver if, in his discretion, such waiver would not
unreasonably interfere with the attainment of the purposes and
provisions of this Act. The Administrator shall promulgate
rules and regulations regarding such a waiver so as to inform
parties of the proper application procedure and conditions for
approval of such a waiver.
(4) Notwithstanding the provisions of this subsection,
the Administrator of the Environmental Protection Agency may in
his discretion require any such person to retain any record
identified pursuant to paragraph (1) of this subsection for
such a time period in excess of the period specified in
paragraph (2) of this subsection as the Administrator
determines to be necessary to protect the public health or
welfare.
(e) This section shall not apply to the application of a
pesticide product registered under the Federal Insecticide,
Fungicide, and Rodenticide Act or to the handling and storage
of such a pesticide product by an agricultural producer.
(f) No notification shall be required under subsection
(a) or (b) of this section for any release of a hazardous
substance--
(1) which is required to be reported (or
specifically exempted from a requirement for reporting)
under subtitle C of the Solid Waste Disposal Act or
regulations thereunder and which has been reported to
the National Response Center, or
(2) which is a continuous release, stable in
quantity and rate, and is--
(A) from a facility for which notification
has been given under subsection (c) of this
section, or
(B) a release of which notification has
been given under subsections (a) and (b) of
this section for a period sufficient to
establish the continuity, quantity, and
regularity of such release:
Provided, That notification in accordance with
subsections (a) and (b) of this paragraph shall be
given for releases subject to this paragraph annually,
or at such time as there is any statistically
significant increase in the quantity of any hazardous
substance or constituent thereof released, above that
previously reported or occurring.
[42 U.S.C. 9603]
response authorities
Sec. 104. (a)(1) Whenever (A) any hazardous substance is
released or there is a substantial threat of such a release
into the environment, or (B) there is a release or substantial
threat of release into the environment of any pollutant or
contaminant which may present an imminent and substantial
danger to the public health or welfare, the President is
authorized to act, consistent with the national contingency
plan, to remove or arrange for the removal of, and provide for
remedial action relating to such hazardous substance,
pollutant, or contaminant at any time (including its removal
from any contaminated natural resource), or take any other
response measure consistent with the national contingency plan
which the President deems necessary to protect the public
health or welfare or the environment. When the President
determines that such action will be done properly and promptly
by the owner or operator of the facility or vessel or by any
other responsible party, the President may allow such person to
carry out the action, conduct the remedial investigation, or
conduct the feasibility study in accordance with section 122.
No remedial investigation or feasibility study (RI/FS) shall be
authorized except on a determination by the President that the
party is qualified to conduct the RI/FS and only if the
President contracts with or arranges for a qualified person to
assist the President in overseeing and reviewing the conduct of
such RI/FS and if the responsible party agrees to reimburse the
Fund for any cost incurred by the President under, or in
connection with, the oversight contract or arrangement. In no
event shall a potentially responsible party be subject to a
lesser standard of liability, receive preferential treatment,
or in any other way, whether direct or indirect, benefit from
any such arrangements as a response action contractor, or as a
person hired or retained by such a response action contractor,
with respect to the release or facility in question. The
President shall give primary attention to those releases which
the President deems may present a public health threat.
(2) Removal Action.--Any removal action undertaken by the
President under this subsection (or by any other person
referred to in section 122) should, to the extent the President
deems practicable, contribute to the efficient performance of
any long term remedial action with respect to the release or
threatened release concerned.
(3) Limitations on Response.--The President shall not
provide for a removal or remedial action under this section in
response to a release or threat of release--
(A) of a naturally occurring substance in its
unaltered form, or altered solely through naturally
occurring processes or phenomena, from a location where
it is naturally found;
(B) from products which are part of the structure
of, and result in exposure within, residential
buildings or business or community structures; or
(C) into public or private drinking water supplies
due to deterioration of the system through ordinary
use.
(4) Exception to Limitations.--Notwithstanding paragraph
(3) of this subsection, to the extent authorized by this
section, the President may respond to any release or threat of
release if in the President's discretion, it constitutes a
public health or environmental emergency and no other person
with the authority and capability to respond to the emergency
will do so in a timely manner.
(b)(1) Information; Studies and Investigations.--Whenever
the President is authorized to act pursuant to subsection (a)
of this section, or whenever the President has reason to
believe that a release has occurred or is about to occur, or
that illness, disease, or complaints thereof may be
attributable to exposure to a hazardous substance, pollutant,
or contaminant and that a release may have occurred or be
occurring, he may undertake such investigations, monitoring,
surveys, testing, and other information gathering as he may
deem necessary or appropriate to identify the existence and
extent of the release or threat thereof, the source and nature
of the hazardous substances, pollutants or contaminants
involved, and the extent of danger to the public health or
welfare or to the environment. In addition, the President may
undertake such planning, legal, fiscal, economic, engineering,
architectural, and other studies or investigations as he may
deem necessary or appropriate to plan and direct response
actions, to recover the costs thereof, and to enforce the
provisions of this Act.
(2) Coordination of Investigations.--The President shall
promptly notify the appropriate Federal and State natural
resource trustees of potential damages to natural resources
resulting from releases under investigation pursuant to this
section and shall seek to coordinate the assessments,
investigations, and planning under this section with such
Federal and State trustees.
(3) Notice to health authorities.--The President shall
notify State, local, and tribal public health authorities
whenever a release of a hazardous substance, pollutant, or
contaminant has occurred, is occurring, or is about to occur,
or there is a threat of such a release, and the release or
threatened release is under investigation pursuant to this
section.
[(c)(1) Unless] (c) Miscellaneous Limitations and
Requirements.--
(1) Continuance of obligations from fund.--Unless
(A) the President finds that (i) continued response
actions are immediately required to prevent, limit, or
mitigate an emergency, (ii) there is an immediate risk
to public health or welfare or the environment, and
(iii) such assistance will not otherwise be provided on
a timely basis, or (B) the President has determined the
appropriate remedial actions pursuant to paragraph (2)
of this subsection and the State or States in which the
source of the release is located have complied with the
requirements of paragraph (3) of this subsection, or
(C) continued response action is otherwise appropriate
and [consistent with the remedial action to be taken]
not inconsistent with any remedial action that has been
selected or is anticipated at the time of any removal
action at a facility, obligations from the Fund, other
than those authorized by subsection (b) of this
section, shall not continue after [$2,000,000]
$5,000,000 has been obligated for response actions or
[12 months] 3 years has elapsed from the date of
initial response to a release or threatened release of
hazardous substances.
[(2) The President] (2) Consultation.--The President
shall consult with the affected State or States before
determining any appropriate remedial action to be taken
pursuant to the authority granted under subsection (a) of this
section.
[(3) The President shall not provide any remedial actions
pursuant to this section unless the State in which the release
occurs first enters into a contract or cooperative agreement
with the President providing assurances deemed adequate by the
President that (A) the State will assure all future maintenance
of the removal and remedial actions provided for the expected
life of such actions as determined by the President; (B) the
State will assure the availability of a hazardous waste
disposal facility acceptable to the President and in compliance
with the requirements of subtitle C of the Solid Waste Disposal
Act for any necessary offsite storage, destruction, treatment,
or secure disposition of the hazardous substances; and (C) the
State will pay or assure payment of (i) 10 per centum of the
costs of the remedial action, including all future maintenance,
or (ii) 50 percent (or such greater amount as the President may
determine appropriate, taking into account the degree of
responsibility of the State or political subdivision for the
release) of any sums expended in response to a release at a
facility, that was operated by the State or a political
subdivision thereof, either directly or through a contractual
relationship or otherwise, at the time of any disposal of
hazardous substances therein. For the purpose of clause (ii) of
this subparagraph, the term ``facility'' does not include
navigable waters or the beds underlying those waters. The
President shall grant the State a credit against the share of
the costs for which it is responsible under this paragraph for
any documented direct out-of-pocket non-Federal funds expended
or obligated by the State or a political subdivision thereof
after January 1, 1978, and before the date of enactment of this
Act for cost-eligible response actions and claims for damages
compensable under section 111 of this title relating to the
specific release in question: Provided, however, That in no
event shall the amount of the credit granted exceed the total
response costs relating to the release. In the case of remedial
action to be taken on land or water held by an Indian tribe,
held by the United States in trust for Indians, held by a
member of an Indian tribe (if such land or water is subject to
a trust restriction on alienation), or otherwise within the
borders of an Indian reservation, the requirements of this
paragraph for assurances regarding future maintenance and cost-
sharing shall not apply, and the President shall provide the
assurance required by this paragraph regarding the availability
of a hazardous waste disposal facility.]
(3) State cost share.--
(A) In general.--The Administrator shall
not provide any funding for remedial action
under this section unless the State in which
the release occurs first enters into a contract
or cooperative agreement with the Administrator
providing assurances deemed adequate by the
Administrator that the State will pay, in cash
or through in-kind contributions, 10 percent of
the costs of the remedial action and operation
and maintenance costs.
(B) Activities with respect to which state
cost share is required.--No State cost share
shall be required except for remedial actions
under section 104.
(C) Indian tribes.--In the case of remedial
action to be taken on land or water held by an
Indian Tribe, held by the United States in
trust for an Indian Tribe, held by a member of
an Indian Tribe (if the land or water is
subject to a trust restriction on alienation),
or otherwise within the borders of an Indian
reservation, the requirements of this paragraph
shall not apply.
(4) Selection of Remedial Action.--The President shall
select remedial actions to carry out this section in accordance
with section 121 of this Act (relating to cleanup standards).
(5) State Credits.--
(A) Granting of credit.--The President shall grant
a State a credit against the share of the costs, for
which it is responsible under paragraph (3) with
respect to a facility listed on the National Priorities
List under the National Contingency Plan, for amounts
expended by a State for remedial action at such
facility pursuant to a contract or cooperative
agreement with the President. The credit under this
paragraph shall be limited to those State expenses
which the President determines to be reasonable,
documented, direct out-of-pocket expenditures of non-
Federal funds.
(B) Expenses before listing or agreement.--The
credit under this paragraph shall include expenses for
remedial action at a facility incurred before the
listing of the facility on the National Priorities List
or before a contract or cooperative agreement is
entered into under subsection (d) for the facility if--
(i) after such expenses are incurred the
facility is listed on such list and a contract
or cooperative agreement is entered into for
the facility, and
(ii) the President determines that such
expenses would have been credited to the State
under subparagraph (A) had the expenditures
been made after listing of the facility on such
list and after the date on which such contract
or cooperative agreement is entered into.
(C) Response actions between 1978 and 1980.--The
credit under this paragraph shall include funds
expended or obligated by the State or a political
subdivision thereof after January 1, 1978, and before
December 11, 1980, for cost-eligible response actions
and claims for damages compensable under section 111.
(D) State expenses after december 11, 1980, in
excess of 10 percent of costs.--The credit under this
paragraph shall include 90 percent of State expenses
incurred at a facility owned, but not operated, by such
State or by a political subdivision thereof. Such
credit applies only to expenses incurred pursuant to a
contract or cooperative agreement under subsection (d)
and only to expenses incurred after December 11, 1980,
but before the date of the enactment of this paragraph.
(E) Item-by-item approval.--In the case of
expenditures made after the date of the enactment of
this paragraph, the President may require prior
approval of each item of expenditure as a condition of
granting a credit under this paragraph.
(F) Use of credits.--Credits granted under this
paragraph for funds expended with respect to a facility
may be used by the State to reduce all or part of the
share of costs otherwise required to be paid by the
State under paragraph (3) in connection with remedial
actions at such facility. If the amount of funds for
which credit is allowed under this paragraph exceeds
such share of costs for such facility, the State may
use the amount of such excess to reduce all or part of
the share of such costs at other facilities in that
State. A credit shall not entitle the State to any
direct payment.
(6) Operation and Maintenance.--For the purposes of
paragraph (3) of this subsection, in the case of ground or
surface water contamination, completed remedial action includes
the completion of treatment or other measures, whether taken
onsite or offsite, necessary to restore ground and surface
water quality to a level that assures protection of human
health and the environment. With respect to such measures, the
operation of such measures for a period of up to 10 years after
the construction or installation and commencement of operation
shall be considered remedial action. Activities required to
maintain the effectiveness of such measures following such
period or the completion of remedial action, whichever is
earlier, shall be considered operation or maintenance.
(7) Limitation on Source of Funds for O&M.--During any
period after the availability of funds received by the
Hazardous Substance Superfund established under subchapter A of
chapter 98 of the Internal Revenue Code of 1954 from tax
revenues or appropriations from general revenues, the Federal
share of the payment of the cost of operation or maintenance
pursuant to paragraph (3)(C)(i) or paragraph (6) of this
subsection (relating to operation and maintenance) shall be
from funds received by the Hazardous Substance Superfund from
amounts recovered on behalf of such fund under this Act.
(8) Recontracting.--The President is authorized to
undertake or continue whatever interim remedial actions the
President determines to be appropriate to reduce risks to
public health or the environment where the performance of a
complete remedial action requires recontracting because of the
discovery of sources, types, or quantities of hazardous
substances not known at the time of entry into the original
contract. The total cost of interim actions undertaken at a
facility pursuant to this paragraph shall not exceed
$2,000,000.
(9) Siting.--Effective 3 years after the enactment of the
Superfund Amendments and Reauthorization Act of 1986, the
President shall not provide any remedial actions pursuant to
this section unless the State in which the release occurs first
enters into a contract or cooperative agreement with the
President providing assurances deemed adequate by the President
that the State will assure the availability of hazardous waste
treatment or disposal facilities which--
(A) have adequate capacity for the destruction,
treatment, or secure disposition of all hazardous
wastes that are reasonably expected to be generated
within the State during the 20-year period following
the date of such contract or cooperative agreement and
to be disposed of, treated, or destroyed,
(B) are within the State or outside the State in
accordance with an interstate agreement or regional
agreement or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements of
subtitle C of the Solid Waste Disposal Act.
(d)(1) Cooperative Agreements.--
(A) State applications.--A State or political
subdivision thereof or Indian tribe may apply to the
President to carry out actions authorized in this
section. If the President determines that the State or
political subdivision or Indian tribe has the
capability to carry out any or all of such actions in
accordance with the criteria and priorities established
pursuant to section 105(a)(8) and to carry out related
enforcement actions, the President may enter into a
contract or cooperative agreement with the State or
political subdivision or Indian tribe to carry out such
actions. The President shall make a determination
regarding such an application within 90 days after the
President receives the application.
(B) Terms and conditions.--A contract or
cooperative agreement under this paragraph shall be
subject to such terms and conditions as the President
may prescribe. The contract or cooperative agreement
may cover a specific facility or specific facilities.
(C) Reimbursements.--Any State which expended funds
during the period beginning September 30, 1985, and
ending on the date of the enactment of this
subparagraph for response actions at any site included
on the National Priorities List and subject to a
cooperative agreement under this Act shall be
reimbursed for the share of costs of such actions for
which the Federal Government is responsible under this
Act.
(2) If the President enters into a cost-sharing agreement
pursuant to subsection (c) of this section or a contract or
cooperative agreement pursuant to this subsection, and the
State or political subdivision thereof fails to comply with any
requirements of the contract, the President may, after
providing sixty days notice, seek in the appropriate Federal
district court to enforce the contract or to recover any funds
advanced or any costs incurred because of the breach of the
contract by the State or political subdivision.
(3) Where a State or a political subdivision thereof is
acting in behalf of the President, the President is authorized
to provide technical and legal assistance in the administration
and enforcement of any contract or subcontract in connection
with response actions assisted under this title, and to
intervene in any civil action involving the enforcement of such
contract or subcontract.
(4) Where two or more noncontiguous facilities are
reasonably related on the basis of geography, or on the basis
of the threat, or potential threat to the public health or
welfare or the environment, the President may, in his
discretion, treat these related facilities as one for purposes
of this section.
(e) Information Gathering and Access.--
(1) Action authorized.--Any officer, employee, or
representative of the President, duly designated by the
President, is authorized to take action under paragraph
(2), (3), or (4) (or any combination thereof) at a
vessel, facility, establishment, place, property, or
location or, in the case of paragraph (3) or (4), at
any vessel, facility, establishment, place, property,
or location which is adjacent to the vessel, facility,
establishment, place, property, or location referred to
in such paragraph (3) or (4). Any duly designated
officer, employee, or representative of a State or
political subdivision under a contract or cooperative
agreement under subsection (d)(1) is also authorized to
take such action. The authority of paragraphs (3) and
(4) may be exercised only if there is a reasonable
basis to believe there may be a release or threat of
release of a hazardous substance or pollutant or
contaminant. The authority of this subsection may be
exercised only for the purposes of determining the need
for response, or choosing or taking any response action
under this title, or otherwise enforcing the provisions
of this title.
(2) Access to information.--Any officer, employee,
or representative described in paragraph (1) may
require any person who has or may have information
relevant to any of the following to furnish, upon
reasonable notice, information or documents relating to
such matter:
(A) The identification, nature, and
quantity of materials which have been or are
generated, treated, stored, or disposed of at a
vessel or facility or transported to a vessel
or facility.
(B) The nature or extent of a release or
threatened release of a hazardous substance or
pollutant or contaminant at or from a vessel or
facility.
(C) Information relating to the ability of
a person to pay for or to perform a cleanup.
In addition, upon reasonable notice, such person either
(i) shall grant any such officer, employee, or
representative access at all reasonable times to any
vessel, facility, establishment, place, property, or
location to inspect and copy all documents or records
relating to such matters or (ii) shall copy and furnish
to the officer, employee, or representative all such
documents or records, at the option and expense of such
person.
(3) Entry.--Any officer, employee, or
representative described in paragraph (1) is authorized
to enter at reasonable times any of the following:
(A) Any vessel, facility, establishment, or
other place or property where any hazardous
substance or pollutant or contaminant may be or
has been generated, stored, treated, disposed
of, or transported from.
(B) Any vessel, facility, establishment, or
other place or property from which or to which
a hazardous substance or pollutant or
contaminant has been or may have been released.
(C) Any vessel, facility, establishment, or
other place or property where such release is
or may be threatened.
(D) Any vessel, facility, establishment, or
other place or property where entry is needed
to determine the need for response or the
appropriate response or to effectuate a
response action under this title.
(4) Inspection and samples.--
(A) Authority.--Any officer, employee or
representative described in paragraph (1) is
authorized to inspect and obtain samples from
any vessel, facility, establishment, or other
place or property referred to in paragraph (3)
or from any location of any suspected hazardous
substance or pollutant or contaminant. Any such
officer, employee, or representative is
authorized to inspect and obtain samples of any
containers or labeling for suspected hazardous
substances or pollutants or contaminants. Each
such inspection shall be completed with
reasonable promptness.
(B) Samples.--If the officer, employee, or
representative obtains any samples, before
leaving the premises he shall give to the
owner, operator, tenant, or other person in
charge of the place from which the samples were
obtained a receipt describing the sample
obtained and, if requested, a portion of each
such sample. A copy of the results of any
analysis made of such samples shall be
furnished promptly to the owner, operator,
tenant, or other person in charge, if such
person can be located.
(5) Compliance orders.--
(A) Issuance.--If consent is not granted
regarding any request made by an officer,
employee, or representative under paragraph
(2), (3), or (4), the President may issue an
order directing compliance with the request.
The order may be issued after such notice and
opportunity for consultation as is reasonably
appropriate under the circumstances.
(B) Compliance.--The President may ask the
Attorney General to commence a civil action to
compel compliance with a request or order
referred to in subparagraph (A). Where there is
a reasonable basis to believe there may be a
release or threat of a release of a hazardous
substance or pollutant or contaminant, the
court shall take the following actions:
(i) In the case of interference
with entry or inspection, the court
shall enjoin such interference or
direct compliance with orders to
prohibit interference with entry or
inspection unless under the
circumstances of the case the demand
for entry or inspection is arbitrary
and capricious, an abuse of discretion,
or otherwise not in accordance with
law.
(ii) In the case of information or
document requests or orders, the court
shall enjoin interference with such
information or document requests or
orders or direct compliance with the
requests or orders to provide such
information or documents unless under
the circumstances of the case the
demand for information or documents is
arbitrary and capricious, an abuse of
discretion, or otherwise not in
accordance with law.
The court may assess a civil penalty not to
exceed $25,000 for each day of noncompliance
against any person who unreasonably fails to
comply with the provisions of paragraph (2),
(3), or (4) or an order issued pursuant to
subparagraph (A) of this paragraph.
(6) Other authority.--Nothing in this subsection
shall preclude the President from securing access or
obtaining information in any other lawful manner.
(7) Confidentiality of information.--(A) Any
records, reports, or information obtained from any
person under this section (including records, reports,
or information obtained by representatives of the
President) shall be available to the public not later
than 14 days after the records, reports, or information
is obtained, except that upon a showing satisfactory to
the President (or the State, as the case may be) by any
person that records, reports, or information, or
particular part thereof (other than health or safety
effects data), to which the President (or the State, as
the case may be) or any officer, employee, or
representative has access under this section if made
public would divulge information entitled to protection
under section 1905 of title 18 of the United States
Code, such information or particular portion thereof
shall be considered confidential in accordance with the
purposes of that section, except that such record,
report, document or information may be disclosed to
other officers, employees, or authorized
representatives of the United States concerned with
carrying out this Act, or when relevant in any
proceeding under this Act.
(B) Any person not subject to the provisions of
section 1905 of title 18 of the United States Code who
knowingly and willfully divulges or discloses any
information entitled to protection under this
subsection shall, upon conviction, be subject to a fine
of not more than $5,000 or to imprisonment not to
exceed one year, or both.
(C) In submitting data under this Act, a person
required to provide such data may (i) designate the
data which such person believes is entitled to
protection under this subsection and (ii) submit such
designated data separately from other data submitted
under this Act. A designation under this paragraph
shall be made in writing and in such manner as the
President may prescribe by regulation.
(D) Notwithstanding any limitation contained in
this section or any other provision of law, all
information reported to or otherwise obtained by the
President (or any representative of the President)
under this Act shall be made available, upon written
request of any duly authorized committee of the
Congress, to such committee.
(E) No person required to provide information under
this Act may claim that the information is entitled to
protection under this paragraph unless such person
shows each of the following:
(i) Such person has not disclosed the
information to any other person, other than a
member of a local emergency planning committee
established under title III of the Amendments
and Reauthorization Act of 1986, an officer or
employee of the United States or a State or
local government, an employee of such person,
or a person who is bound by a confidentiality
agreement, and such person has taken reasonable
measures to protect the confidentiality of such
information and intends to continue to take
such measures.
(ii) The information is not required to be
disclosed, or otherwise made available, to the
public under any other Federal or State law.
(iii) Disclosure of the information is
likely to cause substantial harm to the
competitive position of such person.
(iv) The specific chemical identity, if
sought to be protected, is not readily
discoverable through reverse engineering.
(F) The following information with respect to any
hazardous substance at the facility or vessel shall not
be entitled to protection under this paragraph:
(i) The trade name, common name, or generic
class or category of the hazardous substance.
(ii) The physical properties of the
substance, including its boiling point, melting
point, flash point, specific gravity, vapor
density, solubility in water, and vapor
pressure at 20 degrees celsius.
(iii) The hazards to health and the
environment posed by the substance, including
physical hazards (such as explosion) and
potential acute and chronic health hazards.
(iv) The potential routes of human exposure
to the substance at the facility,
establishment, place, or property being
investigated, entered, or inspected under this
subsection.
(v) The location of disposal of any waste
stream.
(vi) Any monitoring data or analysis of
monitoring data pertaining to disposal
activities.
(vii) Any hydrogeologic or geologic data.
(viii) Any groundwater monitoring data.
(f) In awarding contracts to any person engaged in
response actions, the President or the State, in any case where
it is awarding contracts pursuant to a contract entered into
under subsection (d) of this section, shall require compliance
with Federal health and safety standards established under
section 301(f) of this Act by contractors and subcontractors as
a condition of such contracts.
(g)(1) All laborers and mechanics employed by contractors
or subcontractors in the performance of construction, repair,
or alteration work funded in whole or in part under this
section shall be paid wages at rates not less than those
prevailing on projects of a character similar in the locality
as determined by the Secretary of Labor in accordance with the
Davis-Bacon Act. The President shall not approve any such
funding without first obtaining adequate assurance that
required labor standards will be maintained upon the
construction work.
(2) The Secretary of Labor shall have, with respect to
the labor standards specified in paragraph (1), the authority
and functions set forth in Reorganization Plan Numbered 14 of
1950 (15 F.R. 3176; 64 Stat. 1267) and section 276c of title 40
of the United States Code.
(h) Notwithstanding any other provision of law, subject
to the provisions of section 111 of this Act, the President may
authorize the use of such emergency procurement powers as he
deems necessary to effect the purpose of this Act. Upon
determination that such procedures are necessary, the President
shall promulgate regulations prescribing the circumstances
under which such authority shall be used and the procedures
governing the use of such authority.
(i)(1) There is hereby established within the Public
Health Service an agency, to be known as the Agency for Toxic
Substances and Disease Registry, which shall report directly to
the Surgeon General of the United States. The Administrator of
said Agency shall, with the cooperation of the Administrator of
the Environmental Protection Agency, the Commissioner of the
Food and Drug Administration, the Directors of the National
Institute of Medicine, National Institute of Environmental
Health Sciences, National Institute of Occupational Safety and
Health, Centers for Disease Control and Prevention, the
Administrator of the Occupational Safety and Health
Administration, the Administrator of the Social Security
Administration, the Secretary of Transportation, [and
appropriate State and local health officials] the Indian Health
Service, and appropriate State, tribal, and local health
officials, effectuate and implement the health related
authorities of this Act. In addition, said Administrator
shall--
(A) in cooperation with the States and Indian
Tribes, establish and maintain a national registry of
serious diseases and illnesses and a national registry
of persons exposed to toxic substances;
(B) establish and maintain inventory of literature,
research, and studies on the health effects of toxic
substances;
(C) in cooperation with the States and Indian
Tribes, and other agencies of the Federal Government,
establish and maintain a complete listing of areas
closed to the public or otherwise restricted in use
because of toxic substance contamination;
(D) in cases of public health emergencies caused or
believed to be caused by exposure to toxic substances,
provide medical care and testing to exposed
individuals, including but not limited to tissue
sampling, chromosomal testing where appropriate,
epidemiological studies, or any other assistance
appropriate under the circumstances; and
(E) either independently or as part of other health
status survey, conduct periodic survey and screening
programs to determine relationships between exposure to
toxic substances and illness. In cases of public health
emergencies, exposed persons shall be eligible for
[admission to hospitals and other facilities and
services operated or provided by the Public Health
Service] referral to licensed or accredited health care
providers.
(2)(A) Within 6 months after the enactment of the
Superfund Amendments and Reauthorization Act of 1986, the
Administrator of the Agency for Toxic Substances and Disease
Registry (ATSDR) and the Administrator of the Environmental
Protection Agency (``EPA'') shall prepare a list, in order of
priority, of at least 100 hazardous substances which are most
commonly found at facilities on the National Priorities List
and which, in their sole discretion, they determine are posing
the most significant potential threat to human health due to
their known or suspected toxicity to humans and the potential
for human exposure to such substances at facilities on the
National Priorities List or at facilities to which a response
to a release or a threatened release under this section is
under consideration.
(B) Within 24 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986, the Administrator
of ATSDR and the Administrator of EPA shall revise the list
prepared under subparagraph (A). Such revision shall include,
in order of priority, the addition of 100 or more such
hazardous substances. In each of the 3 consecutive 12-month
periods that follow, the Administrator of ATSDR and the
Administrator of EPA shall revise, in the same manner as
provided in the 2 preceding sentences, such list to include not
fewer than 25 additional hazardous substances per revision. The
Administrator of ATSDR and the Administrator of EPA shall not
less often than once every year thereafter revise such list to
include additional hazardous substances in accordance with the
criteria in subparagraph (A).
(3) Based on all available information, including
information maintained under paragraph (1)(B) and data
developed and collected on the health effects of hazardous
substances under this paragraph, the Administrator of ATSDR
shall prepare toxicological profiles of each of the substances
listed pursuant to paragraph (2). The toxicological profiles
shall be prepared in accordance with guidelines developed by
the Administrator of ATSDR and the Administrator of EPA. Such
profiles shall include, but not be limited to each of the
following:
(A) An examination, summary, and interpretation of
available toxicological information and epidemiologic
evaluations on a hazardous substance in order to
ascertain the levels of significant human exposure for
the substance and the associated acute, subacute, and
chronic health effects.
(B) A determination of whether adequate information
on the health effects of each substance is available or
in the process of development to determine levels of
exposure which present a significant risk to human
health of acute, subacute, and chronic health effects.
(C) Where appropriate, an identification of
toxicological testing needed to identify the types or
levels of exposure that may present significant risk of
adverse health effects in humans.
Any toxicological profile or revision thereof shall reflect the
Administrator of ATSDR's assessment of all relevant
toxicological testing which has been peer reviewed. The
profiles required to be prepared under this paragraph for those
hazardous substances listed under subparagraph (A) of paragraph
(2) shall be completed, at a rate of no fewer than 25 per year,
within 4 years after the enactment of the Superfund Amendments
and Reauthorization Act of 1986. A profile required on a
substance listed pursuant to subparagraph (B) of paragraph (2)
shall be completed within 3 years after addition to the list.
The profiles prepared under this paragraph shall be of those
substances highest on the list of priorities under paragraph
(2) for which profiles have not previously been prepared.
Profiles required under this paragraph shall be revised and
republished as necessary, [but no less often than once every 3
years] if the Administrator of ATSDR determines that there is
significant new information. Such profiles shall be provided to
the States and Indian Tribes and made available to other
interested parties.
(4) The Administrator of the ATSDR shall provide
consultations upon request on health issues relating to
exposure to hazardous or toxic substances, on the basis of
available information, to the Administrator of EPA, [State
officials] State, tribal, and local officials. Such
consultations to individuals may be provided by States or
Indian Tribes under cooperative agreements established under
this Act.
(5)(A) For each hazardous substance listed pursuant to
paragraph (2), the Administrator of ATSDR (in consultation with
the Administrator of EPA and other agencies and programs of the
Public Health Service and the Indian Health Service) shall
assess whether adequate information on the health effects of
such substance is available. For any such substance for which
adequate information is not available (or under development),
the Administrator of ATSDR, in cooperation with the Director of
the National Toxicology Program, shall assure the initiation of
a program of research conducted directly or by such means as
cooperative agreements and grants with appropriate public and
nonprofit institutions. The program shall be designed to
determine the health effects (and techniques for development of
methods to determine such health effects) of such substance.
Where feasible, such program shall seek to develop methods to
determine the health effects of such substance in combination
with other substances with which it is commonly found. Before
assuring the initiation of such program, the Administrator of
ATSDR shall consider recommendations of the Interagency Testing
Committee established under section 4(e) of the Toxic
Substances Control Act on the types of research that should be
done. Such program shall include, to the extent necessary to
supplement existing information, but shall not be limited to--
(i) laboratory and other studies to determine
short, intermediate, and long-term health effects;
(ii) laboratory and other studies to determine
organ-specific, site-specific, and system-specific
acute and chronic toxicity;
(iii) laboratory and other studies to determine the
manner in which such substances are metabolized or to
otherwise develop an understanding of the biokinetics
of such substances; and
(iv) where there is a possibility of obtaining
human data, the collection of such information.
(B) In assessing the need to perform laboratory and other
studies, as required by subparagraph (A), the Administrator of
ATSDR shall consider--
(i) the availability and quality of existing test
data concerning the substance on the suspected health
effect in question;
(ii) the extent to which testing already in
progress will, in a timely fashion, provide data that
will be adequate to support the preparation of
toxicological profiles as required by paragraph (3);
and
(iii) such other scientific and technical factors
as the Administrator of ATSDR may determine are
necessary for the effective implementation of this
subsection.
(C) In the development and implementation of any research
program under this paragraph, the Administrator of ATSDR and
the Administrator of EPA shall coordinate such research program
implemented under this paragraph with the National Toxicology
Program and with programs of toxicological testing established
under the Toxic Substances Control Act and the Federal
Insecticide, Fungicide and Rodenticide Act. The purpose of such
coordination shall be to avoid duplication of effort and to
assure that the hazardous substances listed pursuant to this
subsection are tested thoroughly at the earliest practicable
date. Where appropriate, consistent with such purpose, a
research program under this paragraph may be carried out using
such programs of toxicological testing.
(D) It is the sense of the Congress that the costs of
research programs under this paragraph be borne by the
manufacturers and processors of the hazardous substance in
question, as required in programs of toxicological testing
under the Toxic Substances Control Act. Within 1 year after the
enactment of the Superfund Amendments and Reauthorization Act
of 1986, the Administrator of EPA shall promulgate regulations
which provide, where appropriate, for payment of such costs by
manufacturers and processors under the Toxic Substances Control
Act, and registrants under the Federal Insecticide, Fungicide,
and Rodenticide Act, and recovery of such costs from
responsible parties under this Act.
[(6)(A) The Administrator of ATSDR shall perform a health
assessment for each facility on the National Priorities List
established under section 105. Such health assessment shall be
completed not later than December 10, 1988, for each facility
proposed for inclusion on such list prior to the date of the
enactment of the Superfund Amendments and Reauthorization Act
of 1986 or not later than one year after the date of proposal
for inclusion on such list for each facility proposed for
inclusion on such list after such date of enactment.]
(6) Health assessments and related health activities.--
(A) Requirements.--The Administrator of
ATSDR shall perform a health assessment for
each covered facility unless the Administrator
publishes a finding that the facility presents
no significant health risk.
(B) The Administrator of ATSDR may perform health
assessments for releases or facilities where individual persons
or licensed physicians provide information that individuals
have been exposed to a hazardous substance, for which the
probable source of such exposure is a release. In addition to
other methods (formal or informal) of providing such
information, such individual persons or licensed physicians may
submit a petition to the Administrator of ATSDR providing such
information and requesting a health assessment. If such a
petition is submitted and the Administrator of ATSDR does not
initiate a health assessment, the Administrator of ATSDR shall
provide a written explanation of why a health assessment is not
appropriate.
(C) In determining the priority in which to conduct
health assessments under this subsection, the Administrator of
ATSDR, in consultation with the Administrator of EPA, shall
give priority to those facilities at which there is documented
evidence of the release of hazardous substances, at which the
potential risk to human health appears highest, and for which
in the judgment of the Administrator of ATSDR existing health
assessment data are inadequate to assess the potential risk to
human health as provided in subparagraph (F). In determining
the priorities for conducting health assessments under this
subsection, the Administrator of ATSDR shall consider the
National Priorities List schedules and the needs of the
Environmental Protection Agency and other Federal agencies
pursuant to schedules for remedial investigation and
feasibility studies.
(D) Where a health assessment is done at a site on the
National Priorities List, the Administrator of ATSDR shall
complete such assessment promptly and, to the maximum extent
practicable, before the completion of the remedial
investigation and feasibility study at the facility concerned.
The President and the Administrator of ATSDR shall, for each
facility that is placed on the National Priorities List on or
after the date of enactment of the Superfund Cleanup
Acceleration Act of 1998, complete a health assessment prior to
the completion of the remedial investigation and feasibility
study, but in no circumstance shall the President delay the
progress of a remedial action pending completion of a health
assessment. When appropriate, the Administrator of ATSDR shall,
in cooperation with State and local health officials, provide
to the President recommendations for sampling environmental
media. To the extent practicable, the President shall
incorporate the recommendations into facility characterization
activities.
(E) Any State, [or political subdivision carrying out a
health assessment] Indian Tribe, or political subdivision of a
State carrying out a health assessment for a facility shall
report the results of the assessment to the Administrator of
ATSDR and the Administrator of EPA and shall include
recommendations with respect to further activities which need
to be carried out under this section. The Administrator of
ATSDR shall state such recommendation in any report on the
results of any assessment carried out directly by the
Administrator of ATSDR for such facility and shall issue
periodic reports which include the results of all the
assessments carried out under this subsection.
[(F) For the purposes]
(F) Definition of health assessments.--
(i) In general.--For the purposes
of health assessments of this
subsection and section 111(c)(4), the
term ``health assessments'' shall
include preliminary assessments of the
potential risk to human health posed by
individual sites and facilities, based
on such factors as the nature and
extent of contamination, the [existence
of potential] past, present, and future
potential pathways of human exposure
(including ground or surface water
contamination, air emissions, and food
chain contamination), the size and
potential susceptibility of the
community within the likely pathways of
exposure, [the comparison] of expected
human exposure levels to the short-term
and long-term health effects associated
with identified hazardous substances
and any available recommended exposure
or tolerance limits for such hazardous
substances, and the comparison of
existing morbidity and mortality data
on diseases that may be associated with
the observed levels of exposure. [The
Administrator of ATSDR shall use
appropriate data, risk assessments,
risk evaluations and studies available
from the Administrator of EPA.]
(ii) Provision of data.--The
Administrator shall consider
information provided by State, Indian
Tribe, and local health officials and
the affected community (including a
community advisory group, if one has
been established under subsection (g))
as is necessary to perform a health
assessment.
(G) The purpose of health assessments under this
subsection shall be to assist in determining whether actions
under paragraph (11) of this subsection should be taken to
reduce human exposure to hazardous substances from a facility
and whether additional information on human exposure and
associated health risks is needed and should be acquired by
conducting epidemiological studies under paragraph (7),
establishing a registry under paragraph (8), establishing a
health surveillance program under paragraph (9), or through
other means. [In using the results of health assessments for
determining additional actions to be taken] In performing
health assessments under this section, the Administrator of
ATSDR may consider additional information on the risks to the
potentially affected population from all sources of such
hazardous substances including known point or nonpoint sources
other than those from the facility in question and shall give
special consideration, where appropriate, to any practices of
the affected community that may result in increased exposure to
hazardous substances, pollutants, or contaminants, such as
subsistence hunting, fishing, and gathering.
(H) At the completion of each health assessment, the
Administrator of ATSDR shall provide the Administrator of EPA
and [each affected State] appropriate State, Indian Tribe, and
local health officials and community advisory groups with the
results of such assessment, together with any recommendations
for further actions under this subsection or otherwise under
this Act. In addition, if the health assessment indicates that
the release or threatened release concerned may pose a serious
threat to human health or the environment, the Administrator of
ATSDR shall so notify the Administrator of EPA who shall
promptly evaluate such release or threatened release in
accordance with the hazard ranking system referred to in
section 105(a)(8)(A) to determine whether the site shall be
placed on the National Priorities List or, if the site is
already on the list, the Administrator of ATSDR may recommend
to the Administrator of EPA that the site be accorded a higher
priority.
(7)(A) Whenever in the judgment of the Administrator of
ATSDR it is appropriate on the basis of the results of a health
assessment, the Administrator of ATSDR shall conduct a pilot
study of health effects for selected groups of exposed
individuals in order to determine the desirability of
conducting full scale epidemiological or other health studies
of the entire exposed population.
(B) Whenever in the judgment of the Administrator of
ATSDR it is appropriate on the basis of the results of such
pilot study or other study or health assessment, the
Administrator of ATSDR shall conduct such full scale
epidemiological or other health studies as may be necessary to
determine the health effects on the population exposed to
hazardous substances from a release or threatened release. If a
significant excess of disease in a population is identified,
the letter of transmittal of such study shall include an
assessment of other risk factors, other than a release, that
may, in the judgment of the peer review group, be associated
with such disease, if such risk factors were not taken into
account in the design or conduct of the study.
(8) In any case in which the results of a health
assessment indicate a potential significant risk to human
health, the Administrator of ATSDR shall consider whether the
establishment of a registry of exposed persons would contribute
to accomplishing the purposes of this subsection, taking into
account circumstances bearing on the usefulness of such a
registry, including the seriousness or unique character of
identified diseases or the likelihood of population migration
from the affected area.
(9) Where the Administrator of ATSDR has determined that
there is a significant increased risk of adverse health effects
in humans from exposure to hazardous substances based on the
results of a health assessment conducted under paragraph (6),
an epidemiologic study conducted under paragraph (7), or an
exposure registry that has been established under paragraph
(8), and the Administrator of ATSDR has determined that such
exposure is the result of a release from a facility, the
Administrator of ATSDR shall initiate a health surveillance
program for such population. This program shall include but not
be limited to--
(A) periodic medical testing where appropriate of
population subgroups to screen for diseases for which
the population or subgroup is at significant increased
risk; and
(B) a mechanism to refer for treatment those
individuals within such population who are screened
positive for such diseases.
(10) [Two years after the date of the enactment of the
Superfund Amendments and Reauthorization Act of 1986, and every
2 years thereafter] Every 2 years, the Administrator of ATSDR
shall prepare and submit to the Administrator of EPA and to the
Congress a report on the results of the activities of ATSDR
regarding--
(A) health assessments and pilot health effects
studies conducted;
(B) epidemiologic studies conducted;
(C) hazardous substances which have been listed
under paragraph (2), toxicological profiles which have
been developed, and toxicologic testing which has been
conducted or which is being conducted under this
subsection;
(D) registries established under paragraph (8);
[and]
(E) an overall assessment, based on the results of
activities conducted by the Administrator of ATSDR of
the linkage between human exposure to individual or
combinations of hazardous substances due to releases
from facilities covered by this Act or the Solid Waste
Disposal Act and any increased incidence or prevalence
of adverse health effects in humans[.]; and
(F) the health impacts on Indian Tribes of
hazardous substances, pollutants, and
contaminants from covered facilities.
(11) If a health assessment or other study carried out
under this subsection contains a finding that the exposure
concerned presents a significant risk to human health, the
President shall take such steps as may be necessary to reduce
such exposure and elimi-
nate or substantially mitigate the significant risk to human
health. Such steps may include the use of any authority under
this Act, including, but not limited to--
(A) provision of alternative water supplies, and
(B) permanent or temporary relocation of
individuals.
In any case in which information is insufficient, in the
judgment of the Administrator of ATSDR or the President to
determine a significant human exposure level with respect to a
hazardous substance, the President may take such steps as may
be necessary to reduce the exposure of any person to such
hazardous substance to such level as the President deems
necessary to protect human health.
(12) In any case which is the subject of a petition, a
health assessment or study, or a research program under this
subsection, nothing in this subsection shall be construed to
delay or otherwise affect or impair the authority of the
President, the Administrator of ATSDR or the Administrator of
EPA to exercise any authority vested in the President, the
Administrator of ATSDR or the Administrator of EPA under any
other provision of law (including, but not limited to, the
imminent hazard authority of section 7003 of the Solid Waste
Disposal Act) or the response and abatement authorities of this
Act.
(13) All studies and results of research conducted under
this subsection (other than health assessments) shall be
reported or adopted only after appropriate peer review. Such
peer review shall be completed, to the maximum extent
practicable, within a period of 60 days. In the case of
research conducted under the National Toxicology Program, such
peer review may be conducted by the Board of Scientific
Counselors. In the case of other research, such peer review
shall be conducted by panels consisting of no less than three
nor more than seven members, who shall be disinterested
scientific experts selected for such purpose by the
Administrator of ATSDR or the Administrator of EPA, as
appropriate, on the basis of their reputation for scientific
objectivity and the lack of institutional ties with any person
involved in the conduct of the study or research under review.
Support services for such panels shall be provided by the
Agency for Toxic Substances and Disease Registry, or by the
Environmental Protection Agency, as appropriate.
(14) In the implementation of this subsection and other
health-related authorities of this Act, the Administrator of
ATSDR shall assemble, develop as necessary, and [distribute to
the States, and upon request to medical colleges, physicians,
and]distribute--
(A) to the States and local health officials, and
upon request to medical colleges, medical centers,
local health practitioners, and other health
professionals, appropriate educational materials
(including short courses) on the medical surveillance,
screening, and [methods of diagnosis and treatment]
methods of prevention, diagnosis, and treatment of
injury or disease related to exposure to hazardous
substances (giving priority to those listed in
paragraph (2)), through such means as the Administrator
of ATSDR deems appropriate[.]; and
(B) to the community potentially affected by a
facility appropriate educational materials, facility-
specific information, and other information on human
health effects of hazardous substances using available
community information networks, including, if
appropriate, or a community advisory group.
(15) The activities of the Administrator of ATSDR
described in this subsection and section 111(c)(4) shall be
carried out by the Administrator of ATSDR, either directly or
[through cooperative agreements with States (or political
subdivisions thereof) which the Administrator] through grants
to, or cooperative agreements or contracts with, States (or
political subdivisions of States) or other appropriate public
authorities or private nonprofit entities, public or private
institutions, colleges or universities, or professional
associations that the Administrator of ATSDR determines are
capable of carrying out such activities. Such activities shall
include provision of consultations on health information, the
conduct of health assessments, including those required under
section 3019(b) of the Solid Waste Disposal Act, health
studies, registries, and health surveillance.
(16) The President shall provide adequate personnel for
ATSDR, which shall not be fewer than 100 employees. For
purposes of determining the number of employees under this
subsection, an employee employed by ATSDR on a part-time career
employment basis shall be counted as a fraction which is
determined by dividing 40 hours into the average number of
hours of such employee's regularly scheduled workweek.
(17) In accordance with section 120 (relating to Federal
facilities), the Administrator of ATSDR shall have the same
authorities under this section with respect to facilities owned
or operated by a department, agency, or instrumentality of the
United States as the Administrator of ATSDR has with respect to
any nongovernmental entity.
(18) If the Administrator of ATSDR determines that it is
appropriate for purposes of this section to treat a pollutant
or contaminant as a hazardous substance, such pollutant or
contaminant shall be treated as a hazardous substance for such
purpose.
(19) Public health education.--
(A) In general.--If the Administrator of
ATSDR considers it appropriate, the
Administrator of ATSDR, in cooperation with
State, Indian Tribe, and other interested
Federal and local officials, shall conduct
health education activities to make a community
near a covered facility aware of the steps the
community may take to mitigate or prevent
exposure to hazardous substances and the health
effects of hazardous substances.
(B) Dissemination.--In disseminating public
health information under this paragraph
relating to a covered facility, the
Administrator of ATSDR shall use community
health centers, area health education centers,
or other community information networks,
including a community advisory group, or a
technical assistance grant recipient.
(j) Acquisition of Property.--
(1) Authority.--The President is authorized to
acquire, by purchase, lease, condemnation, donation, or
otherwise, any real property or any interest in real
property that the President in his discretion
determines is needed to conduct a remedial action under
this Act. There shall be no cause of action to compel
the President to acquire any interest in real property
under this Act.
(2) State assurance.--The President may use the
authority of paragraph (1) for a remedial action only
if, before an interest in real estate is acquired under
this subsection, the State in which the interest to be
acquired is located assures the President, through a
contract or cooperative agreement or otherwise, that
the State will accept transfer of the interest
following completion of the remedial action.
(3) Exemption.--No Federal, State, or local
government agency shall be liable under this Act solely
as a result of acquiring an interest in real estate
under this subsection.
[42 U.S.C. 9604]
national contingency plan
Sec. 105. (a) Revision and Republication.--Within one
hundred and eighty days after the enactment of this Act, the
President shall, after notice and opportunity for public
comments, revise and republish the national contingency plan
for the removal of oil and hazardous substances, originally
prepared and published pursuant to section 311 of the Federal
Water Pollution Control Act, to reflect and effectuate the
responsibilities and powers created by this Act, in addition to
those matters specified in section 311(c)(2). \45\ Such
revision shall include a section of the plan to be known as the
national hazardous substance response plan which shall
establish procedures and standards for responding to releases
of hazardous substances, pollutants, and contaminants, which
shall include at a minimum:
---------------------------------------------------------------------------
\45\ Probably should refer to section 311(d)(2), pursuant to
general amendments made to such section by section 4201(a) of Public
Law 101-380.
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(1) methods for discovering and investigating
facilities at which hazardous substances have been
disposed of or otherwise come to be located;
(2) methods for evaluating, including analyses of
relative cost, and remedying any releases or threats of
releases from facilities which pose substantial danger
to the public health or the environment;
(3) methods and criteria for determining the
appropriate extent of removal, remedy, and other
measures authorized by this Act;
(4) appropriate roles and responsibilities for the
Federal, State, and local governments and for
interstate and nongovernmental entities in effectuating
the plan;
(5) provision for identification, procurement,
maintenance, and storage of response equipment and
supplies;
(6) a method for and assignment of responsibility
for reporting the existence of such facilities which
may be located on federally owned or controlled
properties and any releases of hazardous substances
from such facilities;
(7) means of assuring that remedial action measures
are cost-effective over the period of potential
exposure to the hazardous substances or contaminated
materials;
(8)(A) criteria for determining priorities among
releases or threatened releases throughout the United
States for the purpose of taking remedial action and,
to the extent practicable taking into account the
potential urgency of such action, for the purpose of
taking removal action. Criteria and priorities under
this paragraph shall be based upon relative risk or
danger to public health or welfare or the environment,
in the judgment of the President, taking into account
to the extent possible the population at risk, the
hazard potential of the hazardous substances at such
facilities, the potential for contamination of drinking
water supplies, the potential for direct human contact,
the potential for destruction of sensitive eco-systems,
the damage to natural resources which may affect the
human food chain and which is associated with any
release or threatened release, the contamination or
potential contamination of the ambient air which is
associated with the release or threatened release,
State preparedness to assume State costs and
responsibilities, and other appropriate factors;
(B) based upon the criteria set forth in
subparagraph (A) of this paragraph, the President shall
list as part of the plan national priorities among the
known releases or threatened releases throughout the
United States and shall revise the list no less often
than annually. Within one year after the date of
enactment of this Act, and annually thereafter, each
State shall establish and submit for consideration by
the President priorities for remedial action among
known releases and potential releases in that State
based upon the criteria set forth in subparagraph (A)
of this paragraph. In assembling or revising the
national list, the President shall consider any
priorities established by the States. To the extent
practicable, the highest priority facilities shall be
designated individually and shall be referred to as the
``top priority among known response targets'', and, to
the extent practicable, shall include among the one
hundred highest priority facilities one such facility
from each State which shall be the facility designated
by the State as presenting the greatest danger to
public health or welfare or the environment among the
known facilities in such State. A State shall be
allowed to designate its highest priority facility only
once. Other priority facilities or incidents may be
listed singly or grouped for response priority
purposes;
(C) provision that, to the extent practicable, in
listing a facility on the National Priorities List, the
Administrator will not include any parcel of real
property at which no release has actually occurred, but
to which a released hazardous substance, pollutant, or
contaminant has migrated in ground water that has moved
through subsurface strata from another parcel of real
estate at which the release actually occurred, unless--
(i) the ground water is in use as a public
drinking water supply or was in such use at the
time of the release; and
(ii) the owner or operator of the facility
is liable, or is affiliated with any other
person that is liable, for any response costs
at the facility, through any direct or indirect
familial relationship, or any contractual,
corporate, or financial relationship other than
that created by the instruments by which title
to the facility is conveyed or financed.
(9) specified roles for private organizations and
entities in preparation for response and in responding
to releases of hazardous substances, including
identification of appropriate qualifications and
capacity therefor and including consideration of
minority firms in accordance with subsection (f); [and]
(10) standards and testing procedures by which
alternative or innovative treatment technologies can be
determined to be appropriate for utilization in
response actions authorized by this Act[.]; and
(11) procedures for conducting response actions,
including facility evaluations, remedial
investigations, feasibility studies, remedial action
plans, remedial designs, and remedial actions, which
procedures shall--
(A) use a results-oriented approach to
minimize the time required to conduct response
measures and reduce the potential for exposure
to the hazardous substances, pollutants, and
contaminants in an efficient, timely, and cost-
effective manner;
(B) require, at a minimum, expedited
facility evaluations and risk assessments,
timely negotiation of response action goals, a
single engineering study, streamlined oversight
of response actions, and consultation with
interested parties throughout the response
action process;
(C) be subject to the requirements of
sections 117, 120, 121, and 133 in the same
manner and to the same degree as those sections
apply to response actions; and
(D) be required to be used for each
remedial action conducted under this Act unless
the Administrator determines that their use
would not be cost-effective or result in the
selection of a response action that achieves
the goals of protecting human health and the
environment stated in section 121(a)(1)(B).
The plan shall specify procedures, techniques, materials,
equipment, and methods to be employed in identifying, removing,
or remedying releases of hazardous substances comparable to
those required under section 311(c)(2) (F) and (G) and (j)(1)
of the Federal Water Pollution Control Act. Following
publication of the revised national contingency plan, the
response to and actions to minimize damage from hazardous
substances releases shall, to the greatest extent possible, be
in accordance with the provisions of the plan. The President
may, from time to time, revise and republish the national
contingency plan.
(b) Revision of Plan.--Not later than 18 months after the
enactment of the Superfund Amendments and Reauthorization Act
of 1986, the President shall revise the National Contingency
Plan to reflect the requirements of such amendments. The
portion of such Plan known as ``the National Hazardous
Substance Response Plan'' shall be revised to provide
procedures and standards for remedial actions undertaken
pursuant to this Act which are consistent with amendments made
by the Superfund Amendments and Reauthorization Act of 1986
relating to the selection of remedial action.
(c) Hazard Ranking System.--
(1) Revision.--Not later than 18 months after the
enactment of the Superfund Amendments and
Reauthorization Act of 1986 and after publication of
notice and opportunity for submission of comments in
accordance with section 553 of title 5, United States
Code, the President shall by rule promulgate amendments
to the hazard ranking system in effect on September 1,
1984. Such amendments shall assure, to the maximum
extent feasible, that the hazard ranking system
accurately assesses the relative degree of risk to
human health and the environment posed by sites and
facilities subject to review. The President shall
establish an effective date for the amended hazard
ranking system which is not later than 24 months after
enactment of the Superfund Amendments and
Reauthorization Act of 1986. Such amended hazard
ranking system shall be applied to any site or facility
to be newly listed on the National Priorities List
after the effective date established by the President.
Until such effective date of the regulations, the
hazard ranking system in effect on September 1, 1984,
shall continue in full force and effect.
(2) Health assessment of water contamination
risks.--In carrying out this subsection, the President
shall ensure that the human health risks associated
with the contamination or potential contamination
(either directly or as a result of the runoff of any
hazardous substance or pollutant or contaminant from
sites or facilities) of surface water are appropriately
assessed where such surface water is, or can be, used
for recreation or potable water consumption. In making
the assessment required pursuant to the preceding
sentence, the President shall take into account the
potential migration of any hazardous substance or
pollutant or contaminant through such surface water to
downstream sources of drinking water.
(3) Reevaluation not required.--The President shall
not be required to reevaluate, after the date of the
enactment of the Superfund Amendments and
Reauthorization Act of 1986, the hazard ranking of any
facility which was evaluated in accordance with the
criteria under this section before the effective date
of the amendments to the hazard ranking system under
this subsection and which was assigned a national
priority under the National Contingency Plan.
(4) New information.--Nothing in paragraph (3)
shall preclude the President from taking new
information into account in undertaking response
actions under this Act.
(d) Petition for Assessment of Release.--Any person who
is, or may be, affected by a release or threatened release of a
hazardous substance or pollutant or contaminant, may petition
the President to conduct a preliminary assessment of the
hazards to public health and the environment which are
associated with such release or threatened release. If the
President has not previously conducted a preliminary assessment
of such release, the President shall, within 12 months after
the receipt of any such petition, complete such assessment or
provide an explanation of why the assessment is not
appropriate. If the preliminary assessment indicates that the
release or threatened release concerned may pose a threat to
human health or the environment, the President shall promptly
evaluate such release or threatened release in accordance with
the hazard ranking system referred to in paragraph (8)(A) of
subsection (a) to determine the national priority of such
release or threatened release.
(e) Releases From Earlier Sites.--Whenever there has
been, after January 1, 1985, a significant release of hazardous
substances or pollutants or contaminants from a site which is
listed by the President as a ``Site Cleaned Up To Date'' on the
National Priorities List (revised edition, December 1984) the
site shall be restored to the National Priorities List, without
application of the hazard ranking system.
(f) Minority Contractors.--In awarding contracts under
this Act, the President shall consider the availability of
qualified minority firms. The President shall describe, as part
of any annual report submitted to the Congress under this Act,
the participation of minority firms in contracts carried out
under this Act. Such report shall contain a brief description
of the contracts which have been awarded to minority firms
under this Act and of the efforts made by the President to
encourage the participation of such firms in programs carried
out under this Act.
(g) Special Study Wastes.--
(1) Application.--This subsection applies to
facilities--
(A) which as of the date of enactment of
the Superfund Amendments and Reauthorization
Act of 1986 were not included on, or proposed
for inclusion on, the National Priorities List;
and
(B) at which special study wastes described
in paragraph (2), (3)(A)(ii) or (3)(A)(iii) of
section 3001(b) of the Solid Waste Disposal Act
are present in significant quantities,
including any such facility from which there
has been a release of a special study waste.
(2) Considerations in adding facilities to npl.--
Pending revision of the hazard ranking system under
subsection (c), the President shall consider each of
the following factors in adding facilities covered by
this section to the National Priorities List:
(A) The extent to which hazard ranking
system score for the facility is affected by
the presence of any special study waste at, or
any release from, such facility.
(B) Available information as to the
quantity, toxicity, and concentration of
hazardous substances that are constituents of
any special study waste at, or released from
such facility, the extent of or potential for
release of such hazardous constituents, the
exposure or potential exposure to human
population and the environment, and the degree
of hazard to human health or the environment
posed by the release of such hazardous
constituents at such facility. This
subparagraph refers only to available
information on actual concentrations of
hazardous substances and not on the total
quantity of special study waste at such
facility.
(3) Savings provisions.--Nothing in this subsection
shall be construed to limit the authority of the
President to remove any facility which as of the date
of enactment of the Superfund Amendments and
Reauthorization Act of 1986 is included on the National
Priorities List from such List, or not to list any
facility which as of such date is proposed for
inclusion on such list.
(4) Information gathering and analysis.--Nothing in
this Act shall be construed to preclude the expenditure
of monies from the Fund for gathering and analysis of
information which will enable the President to consider
the specific factors required by paragraph (2).
(h) Listing of Particular Parcels.--
(1) Definition.--In subsection (a)(8)(C) and
paragraph (2) of this subsection, the term ``parcel of
real property'' means a parcel, lot, or tract of land
that has a separate legal description from that of any
other parcel, lot, or tract of land the legal
description and ownership of which has been recorded in
accordance with the law of the State in which it is
located.
(2) Statutory construction.--Nothing in subsection
(a)(8)(C) shall be construed to limit the
Administrator's authority under section 104 to obtain
access to and undertake response actions at any parcel
of real property to which a released hazardous
substance, pollutant, or contaminant has migrated in
the ground water.
[42 U.S.C. 9605]
abatement action
Sec. 106. [(a) In addition] (a) Order.--
(1) In general.--In addition to any other action
taken by a State or local government, when the
President determines that there may be an imminent and
substantial endangerment to the public health or
welfare or the environment because of an actual or
threatened release of a hazardous substance from a
facility, he may require the Attorney General of the
United States to secure such relief as may be necessary
to abate such danger or threat, and the district court
of the United States in the district in which the
threat occurs shall have jurisdiction to grant such
relief as the public interest and the equities of the
case may require. The President may also, after notice
to the affected State, take other action under this
section including, but not limited to, issuing such
orders as may be necessary to protect public health and
welfare and the environment.
(2) Contents of order.--An order under paragraph
(1) shall provide information concerning the evidence
that indicates that each element of liability described
in section 107(a)(1) (A), (B), (C), and (D), as
applicable, is present.
(b)(1) Any person who, without sufficient cause,
willfully violates, or fails or refuses to comply with, any
order of the President under subsection (a) may, in an action
brought in the appropriate United States district court to
enforce such order, be fined not more than $25,000 for each day
in which such violation occurs or such failure to comply
continues.
(2)(A) Any person who receives and complies with the
terms of any order issued under subsection (a) may, within 60
days after completion of the required action, petition the
President for reimbursement from the Fund for the reasonable
costs of such action, plus interest. Any interest payable under
this paragraph shall accrue on the amounts expended from the
date of expenditure at the same rate as specified for interest
on investments of the Hazardous Substance Superfund established
under subchapter A of chapter 98 of the Internal Revenue Code
of 1954.
(B) If the President refuses to grant all or part of a
petition made under this paragraph, the petitioner may within
30 days of receipt of such refusal file an action against the
President in the appropriate United States district court
seeking reimbursement from the Fund.
(C) Except as provided in subparagraph (D), to obtain
reimbursement, the petitioner shall establish by a
preponderance of the evidence that it is not liable for
response costs under section 107(a) and that costs for which it
seeks reimbursement are reasonable in light of the action
required by the relevant order.
(D) A petitioner who is liable for response costs under
section 107(a) may also recover its reasonable costs of
response to the extent that it can demonstrate, on the
administrative record, that the President's decision in
selecting the response action ordered was arbitrary and
capricious or was otherwise not in accordance with law.
Reimbursement awarded under this subparagraph shall include all
reasonable response costs incurred by the petitioner pursuant
to the portions of the order found to be arbitrary and
capricious or otherwise not in accordance with law.
(E) Reimbursement awarded by a court under subparagraph
(C) or (D) may include appropriate costs, fees, and other
expenses in accordance with subsections (a) and (d) of section
2412 of title 28 of the United States Code.
(c) Within one hundred and eighty days after enactment of
this Act, the Administrator of the Environmental Protection
Agency shall, after consultation with the Attorney General,
establish and publish guidelines for using the imminent hazard,
enforcement, and emergency response authorities of this section
and other existing statutes administered by the Administrator
of the Environmental Protection Agency to effectuate the
responsibilities and powers created by this Act. Such
guidelines shall to the extent practicable be consistent with
the national hazardous substance response plan, and shall
include, at a minimum, the assignment of responsibility for
coordinating response actions with the issuance of
administrative orders, enforcement of standards and permits,
the gathering of information, and other imminent hazard and
emergency powers authorized by (1) sections 311(c)(2), \46\
308, 309, and 504(a) of the Federal Water Pollution Control
Act, (2) sections 3007, 3008, 3013, and 7003 of the Solid Waste
Disposal Act, (3) sections 1445 and 1431 of the Safe Drinking
Water Act, (4) sections 113, 114, and 303 of the Clean Air Act,
and (5) section 7 of the Toxic Substances Control Act.
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\46\ See footnote 1 under section 105.
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[42 U.S.C. 9606]
[liability
[Sec. 107. (a) Notwithstanding]
SEC. 107. LIABILITY.
(a) In General.--
(1) Persons liable.--Notwithstanding any other
provision or rule of law, and subject only to the
defenses set forth in subsection (b) [of this section]
and the exemptions and limitations stated in this
section--
[(1)] (A) the owner and operator of a
vessel or a facility,
[(2)] (B) any person who at the time of
disposal of any hazardous substance owned or
operated any facility at which such hazardous
substances were disposed of,
[(3)] (C) any person who by contract,
agreement, or otherwise arranged for disposal
or treatment, or arranged with a transporter
for transport for disposal or treatment, of
hazardous substances owned or possessed by such
person, by any other party or entity, at any
facility or incineration vessel owned or
operated by another party or entity and
containing such hazardous substances, and
[(4)] (D) any person who accepts or
accepted any hazardous substances for transport
to disposal or treatment facilities,
incineration vessels or sites selected by such
person, from which there is a release, or a
threatened release which causes the incurrence
of response costs, of a [hazardous substance,
shall be liable for--] hazardous substance;
shall be liable for the costs and damages described in
paragraph (2).
(2) Costs and damages.--A person described in
paragraph (1) shall be liable for--
(A) all costs of removal or remedial action
incurred by the United States Government or a
State or an Indian tribe not inconsistent with
the national contingency plan;
(B) any other necessary costs of response
incurred by any other person consistent with
the national contingency plan;
(C) damages for injury to, destruction of,
or loss of natural resources, including the
reasonable costs of assessing such injury,
destruction, or loss resulting from such a
release; and
(D) the costs of any health assessment or
health effects study carried out under section
104(i).
[The amounts]
(3) Interest.--The amounts recoverable in an action
under this section shall include interest on the
amounts recoverable under [subparagraphs (A) through
(D)] paragraph (2). Such interest shall accrue from the
later of (i) the date payment of a specified amount is
demanded in writing, or (ii) the date of the
expenditure concerned. The rate of interest on the
outstanding unpaid balance of the amounts recoverable
under this section shall be the same rate as is
specified for interest on investments of the Hazardous
Substance Superfund established under subchapter A of
chapter 98 of the Internal Revenue Code of 1954. For
purposes of applying such amendments to interest under
this subsection, the term ``comparable maturity'' shall
be determined with reference to the date on which
interest accruing under this subsection commences. \47\
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\47\ Section 209 of the Water Resources Development Act of 1996
(Public Law 104-303; 110 Stat. 3681) provides:
---------------------------------------------------------------------------
SEC. 209. [42 U.S.C. 9607 note] RECOVERY OF COSTS.
---------------------------------------------------------------------------
Amounts recovered under section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9607) for any response action taken by the Secretary in support
of the civil works program of the Department of the Army and any other
amounts recovered by the Secretary from a contractor, insurer, surety,
or other person to reimburse the Department of the Army for any
expenditure for environmental response activities in support of the
Army civil works program shall be credited to the appropriate trust
fund account from which the cost of such response action has been paid
or will be charged.
---------------------------------------------------------------------------
(b) There shall be no liability under subsection (a) of
this section for a person otherwise liable who can establish by
a preponderance of the evidence that the release or threat of
release of a hazardous substance and the damages resulting
therefrom were caused solely by--
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other than
an employee or agent of the defendant, or than one
whose act or omission occurs in connection with a
contractual relationship, existing directly or
indirectly, with the defendant (except where the sole
contractual arrangement arises from [a published tariff
and acceptance] a contract for carriage by a common
carrier by rail), if the defendant establishes by a
preponderance of the evidence that (a) \48\ he
exercised due care with respect to the hazardous
substance concerned, taking into consideration the
characteristics of such hazardous substance, in light
of all relevant facts and circumstances, and (b) \49\
he took precautions against foreseeable acts or
omissions of any such third party and the consequences
that could foreseeably result from such acts or
omissions; or
---------------------------------------------------------------------------
\48\ So in law. Probably should be ``(A)''.
\49\ So in law. Probably should be ``(B)''.
---------------------------------------------------------------------------
(4) any combination of the foregoing paragraphs.
(c)(1) Except as provided in paragraph (2) of this
subsection, the liability under this section of an owner or
operator or other responsible person for each release of a
hazardous substance or incident involving release of a
hazardous substance shall not exceed--
(A) for any vessel, other than an incineration
vessel, which carries any hazardous substance as cargo
or residue, $300 per gross ton, or $5,000,000,
whichever is greater;
(B) for any other vessel, other than an
incineration vessel, $300 per gross ton, or $500,000,
whichever is greater;
(C) for any motor vehicle, aircraft, hazardous
liquid pipeline facility (as defined in section
60101(a) of title 49, United States Code), or rolling
stock, $50,000,000 or such lesser amount as the
President shall establish by regulation, but in no
event less than $5,000,000 (or, for releases of
hazardous substances as defined in section 101(14)(A)
of this title into the navigable waters, $8,000,000).
Such regulations shall take into account the size,
type, location, storage, and handling capacity and
other matters relating to the likelihood of release in
each such class and to the economic impact of such
limits on each such class; or
(D) for any incineration vessel or any facility
other than those specified in subparagraph (C) of this
paragraph, the total of all costs of response plus
$50,000,000 for any damages under this title.
(2) Notwithstanding the limitations in paragraph (1) of
this subsection, the liability of an owner or operator or other
responsible person under this section shall be the full and
total costs of response and damages, if (A)(i) the release or
threat of release of a hazardous substance was the result of
willful misconduct or willful negligence within the privity or
knowledge of such person, or (ii) the primary cause of the
release was a violation (within the privity or knowledge of
such person) of applicable safety, construction, or operating
standards or regulations; or (B) such person fails or refuses
to provide all reasonable cooperation and assistance requested
by a responsible public official in connection with response
activities under the national contingency plan with respect to
regulated carriers subject to the provisions of title 49 of the
United States Code or vessels subject to the provisions of
title 33 or 46 of the United States Code, subparagraph (A)(ii)
of this paragraph shall be deemed to refer to Federal standards
or regulations.
(3) If any person who is liable for a release or threat
of release of a hazardous substance fails without sufficient
cause to properly provide removal or remedial action upon order
of the President pursuant to section 104 or 106 of this Act,
such person may be liable to the United States for punitive
damages in an amount at least equal to, and not more than three
times, the amount of any costs incurred by the Fund as a result
of such failure to take proper action. The President is
authorized to commence a civil action against any such person
to recover the punitive damages, which shall be in addition to
any costs recovered from such person pursuant to section 112(c)
of this Act. Any moneys received by the United States pursuant
to this subsection shall be deposited in the Fund.
(d) Rendering Care or Advice.--
(1) In general.--Except as provided in paragraph
(2), no person shall be liable under this title for
costs or damages as a result of actions taken or
omitted in the course of rendering care, assistance, or
advice in accordance with the National Contingency Plan
(``NCP'') or at the direction of an on-scene
coordinator appointed under such plan, with respect to
an incident creating a danger to public health or
welfare or the environment as a result of any releases
of a hazardous substance or the threat thereof. This
paragraph shall not preclude liability for costs or
damages as the result of negligence on the part of such
person.
(2) State and local governments.--No State or local
government shall be liable under this title for costs
or damages as a result of actions taken in response to
an emergency created by the release or threatened
release of a hazardous substance generated by or from a
facility owned by another person. This paragraph shall
not preclude liability for costs or damages as a result
of gross negligence or intentional misconduct by the
State or local government. For the purpose of the
preceding sentence, reckless, willful, or wanton
misconduct shall constitute gross negligence.
(3) Savings provision.--This subsection shall not
alter the liability of any person covered by [the
provisions of paragraph (1), (2), (3), or (4) of
subsection (a) of this section] subsection a with
respect to the release or threatened release concerned.
(e)(1) No indemnification, hold harmless, or similar
agreement or conveyance shall be effective to transfer from the
owner or operator of any vessel or facility or from any person
who may be liable for a release or threat of release under this
section, to any other person the liability imposed under this
section. Nothing in this subsection shall bar any agreement to
insure, hold harmless, or indemnify a party to such agreement
for any liability under this section.
(2) Nothing in this title, including the provisions of
paragraph (1) of this subsection, shall bar a cause of action
that an owner or operator or any other person subject to
liability under this section, or a guarantor, has or would
have, by reason of subrogation or otherwise against any person.
(f)[(1) Natural Resources Liability.--In the case of an
injury to, destruction of, or loss of natural resources under
subparagraph (C) of subsection (a) liability shall be to the
United States Government and to any State for natural resources
within the State or belonging to, managed by, controlled by, or
appertaining to such State and to any Indian tribe for natural
resources belonging to, managed by, controlled by, or
appertaining to such tribe, or held in trust for the benefit of
such tribe, or belonging to a member of such tribe if such
resources are subject to a trust restriction on alienation:
Provided, however, That no liability to the United States or
State or Indian tribe shall be imposed under subparagraph (C)
of subsection (a), where the party sought to be charged has
demonstrated that the damages to natural resources complained
of were specifically identified as an irreversible and
irretrievable commitment of natural resources in an
environmental impact statement, or other comparable environment
analysis, and the decision to grant a permit or license
authorizes such commitment of natural resources, and the
facility or project was otherwise operating within the terms of
its permit or license, so long as, in the case of damages to an
Indian tribe occurring pursuant to a Federal permit or license,
the issuance of that permit or license was not inconsistent
with the fiduciary duty of the United States with respect to
such Indian tribe. The President, or the authorized
representative of any State, shall act on behalf of the public
as trustee of such natural resources to recover for such
damages. Sums recovered by the United States Government as
trustee under this subsection shall be retained by the trustee,
without further appropriation, for use only to restore,
replace, or acquire the equivalent of such natural resources.
Sums recovered by a State \50\ as trustee under this subsection
shall be available for use only to restore, replace, or acquire
the equivalent of such natural resources by the State. \13\ The
measure of damages in any action under subparagraph (C) of
subsection (a) shall not be limited by the sums which can be
used to restore or replace such resources. There shall be no
double recovery under this Act for natural resource damages,
including the costs of damage assessment or restoration,
rehabilitation, or acquisition for the same release and natural
resource. There shall be no recovery under the authority of
subparagraph (C) of subsection (a) where such damages and the
release of a hazardous substance from which such damages
resulted have occurred wholly before the enactment of this
Act.]
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\50\ [The words ``or the Indian tribe'' were apparently intended to
be inserted after the word ``State'' in this sentence. (See sections
107(d)(2) and 207(c)(2)(D) of the Superfund Amendments and
Reauthorization Act of 1986). Two simultaneous amendments were
inadvertently made to the same provision.]
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(1) Natural resources liability.--
(A) General.--In the case of an injury to,
destruction of, or loss of natural resources under
subsection (a)(4)(C), liability shall be to the United
States Government and to any State for natural
resources within the State or belonging to, managed by,
controlled by, or appertaining to such State and to any
Indian Tribe for natural resources belonging to,
managed by, controlled by, or appertaining to such
Tribe, or held in trust for the benefit of such Tribe
if such resources are subject to a trust restriction on
alienation.
(B) Action as trustee.--The President, or the
authorized representative of any State, shall act on
behalf of the public as trustee of such natural
resources to recover for such damages for the natural
resource injured, destroyed or lost by the release of a
hazardous substance.
(C) Measure of damages.--Any person liable for an
injury to, destruction of, or loss of a natural
resource caused by the release of a hazardous substance
shall be liable for--
(i) the costs of restoring the natural
resource to the condition that would have
existed but for the release of the hazardous
substance, replacing or acquiring the
equivalent of the natural resource if the
resource will not be restored to that condition
as a result of any response action;
(ii) replacement of the lost services
provided by the injured, destroyed, or lost
natural resource; and
(iii) the reasonable costs of assessing
damages, including the costs associated with
the development and consideration of
alternative restoration measures but not
including the costs of conducting any type of
study relying on the use of contingent
valuation methodology.
(D) Limitations on liability.--
(i) Commitment of natural resources in an
environmental impact statement.--No liability
to the United States or State or Indian Tribe
shall be imposed under subsection (a)(4)(C)
where the party sought to be charged has
demonstrated that the injury to, destruction
of, or loss of natural resources complained of
was specifically identified as an irreversible
and irretrievable commitment of natural
resources in an environmental impact statement,
or other comparable environmental analysis, and
the decision to grant a permit or license
authorizes such commitment of natural
resources, and the facility or project was
otherwise operating within the terms of its
permit or license, so long as, in the case of
damages to an Indian Tribe occurring pursuant
to a Federal permit or license, the issuance of
the permit or license was not inconsistent with
the fiduciary duty of the United States with
respect to such Indian Tribe.
(ii) No double recovery.--A person shall
not be liable for damages, response costs,
assessment costs, or any other costs for an
injury to, destruction of, or loss of a natural
resource, or a loss of the services provided by
the natural resource, that have been recovered
under this Act or any other Federal, State or
Tribal law for the same injury to, destruction
of or loss of the natural resource or loss of
the services provided by the natural resource.
(iii) Releases before december 11, 1980.--
There shall be no recovery under this section
where the natural resource injury, destruction,
or loss for which restoration, replacement or
acquisition is sought and the release of the
hazardous substance that caused the injury,
destruction, or loss occurred wholly before
December 11, 1980.
(iv) Lost use damages before december 11,
1980.--There shall be no recovery from any
person under this section for the value of the
lost services provided by a natural resource
before December 11, 1980.
(E) Use of recovered sums.--
(i) United states government as trustee.--
Sums recovered by the United States Government
as trustee under this subsection shall be
retained by the trustee, without further
appropriation, for use only to restore,
replace, or acquire the equivalent of such
natural resources.
(ii) State as trustee.--Sums recovered by a
State as trustee under this subsection shall be
available for use only to restore, replace, or
acquire the equivalent of such natural
resources by the State.
(iii) Tribe as trustee.--Sums recovered by
an Indian Tribe as trustee under this
subsection shall be available for use only to
restore, replace, or acquire the equivalent of
such natural resources by the Indian Tribe.
(F) Payment period.--In entering into an agreement
regarding the payment of damages for an injury to,
destruction of or loss of a natural resource under this
section, a trustee may permit payment over a period of
time that is appropriate in view of the amount of the
damages, the financial ability of the responsible party
to pay the damages, and the time period over which and
the pace at which expenditures are expected to be made
for the restoration, replacement or acquisition
activities.
(2) Designation of federal and state officials.--
(A) Federal.--The President shall designate in the
National Contingency Plan published under section 105
of this Act the Federal officials who shall act on
behalf of the public as trustees for natural resources
under this Act and section 311 of the Federal Water
Pollution Control Act. Such officials shall assess
damages for injury to, destruction of, or loss of
natural resources for purposes of this Act and such
section 311 for those resources under their trusteeship
and may, upon request of and reimbursement from a State
and at the Federal officials' discretion, assess
damages for those natural resources under the State's
trusteeship.
(B) State.--The Governor of each State shall
designate State officials who may act on behalf of the
public as trustees for natural resources under this Act
and section 311 of the Federal Water Pollution Control
Act and shall notify the President of such
designations. Such State officials shall assess damages
to natural resources for the purposes of this Act and
such section 311 for those natural resources under
their trusteeship.
(C) Rebuttable presumption.--Any determination or
assessment of damages to natural resources for the
purposes of this Act and section 311 of the Federal
Water Pollution Control Act made by a Federal or State
trustee in accordance with the regulations promulgated
under section 301(c) of this Act shall have the force
and effect of a rebuttable presumption on behalf of the
trustee in any administrative or judicial proceeding
under this Act or section 311 of the Federal Water
Pollution Control Act.
(3) Consideration of alternative restoration measures.--
(A) Alternative measures.--A trustee seeking
damages under this section for an injury to,
destruction of or loss of a natural resource shall, on
the basis of the best scientific information available,
consider alternative measures to achieve the
restoration of the natural resource, including an
alternative that relies on natural restoration. The
trustee shall select measures that achieve an
appropriate balance among the following factors:
(i) Technical feasibility.
(ii) Cost effectiveness.
(iii) The period of time in which the
natural resource is likely to be restored.
(B) Consideration of intrinsic values.--In
selecting measures to restore, replace or acquire the
equivalent of a natural resource injured, destroyed, or
lost by the release of a hazardous substance pursuant
to paragraph (1)(C)(i), the trustee may take into
consideration unique intrinsic values associated with
the natural resource to justify the selection of
measures that will provide for expedited or enhanced
restoration of the natural resource to replace the
intrinsic values lost, provided that the incremental
costs associated with the measures selected are
reasonable.
(4) Relationship to response action.--A natural
resource trustee selecting a restoration alternative
under this subsection shall take into account what any
removal or remedial action carried out or planned for
the facility under this Act or any other Federal or
State law has accomplished or will accomplish to
restore, replace or acquire the equivalent of the
natural resource injured, destroyed or lost by the
release of a hazardous substance.
(g) Federal Agencies.--For provisions relating to Federal
agencies, see section 120 of this Act.
(h) The owner or operator of a vessel shall be liable in
accordance with this section, under maritime tort law, and as
provided under section 114 of this Act notwithstanding any
provision of the Act of March 3, 1851 (46 U.S.C. 183ff) or the
absence of any physical damage to the proprietary interest of
the claimant.
[(i) No person]
(i) Pesticides.--
(1) In general.--No person (including the United
States or any State) or Indian tribe may recover under
the authority of this section for any response costs or
damages resulting from the application of a pesticide
product registered under the Federal Insecticide,
Fungicide, and Rodenticide Act. Nothing in this
paragraph shall affect or modify in any way the
obligations or liability of any person under any other
provision of State or Federal law, including common
law, for damages, injury, or loss resulting from a
release of any hazardous substance or for removal or
remedial action or the costs of removal or remedial
action of such hazardous substance.
(2) Application in compliance with law.--For the
purposes of paragraph (1), the term ``application of a
pesticide product registered under the Federal
Insecticide, Fungicide, and Rodenticide Act'' includes
a release of a hazardous substance resulting from the
application, before the date of enactment of this
subsection, of any pesticide, insecticide, or similar
product in compliance with a Federal or State law
(including a regulation) requiring the treatment of
livestock to prevent, suppress, control, or eradicate
any dangerous, contagious, or infectious disease or any
vector organism for such a disease.
(j) Recovery by any person (including the United States
or any State or Indian tribe) for response costs or damages
resulting from a federally permitted release shall be pursuant
to existing law in lieu of this section. Nothing in this
paragraph shall affect or modify in any way the obligations or
liability of any person under any other provision of State or
Federal law, including common law, for damages, injury, or loss
resulting from a release of any hazardous substance or for
removal or remedial action or the costs of removal or remedial
action of such hazardous substance. In addition, costs of
response incurred by the Federal Government in connection with
a discharge specified in section 101(10) (B) or (C) shall be
recoverable in an action brought under section 309(b) of the
Clean Water Act.
(k)(1) The liability established by this section or any
other law for the owner or operator of a hazardous waste
disposal facility which has received a permit under subtitle C
of the Solid Waste Disposal Act, shall be transferred to and
assumed by the Post-closure Liability Fund established by
section 232 \51\ of this Act when--
---------------------------------------------------------------------------
\51\ Section 232 was repealed by section 514(b) of Public Law 99-
499.
---------------------------------------------------------------------------
(A) such facility and the owner and operator
thereof has complied with the requirements of subtitle
C of the Solid Waste Disposal Act and regulations
issued thereunder, which may affect the performance of
such facility after closure; and
(B) such facility has been closed in accordance
with such regulations and the conditions of such
permit, and such facility and the surrounding area have
been monitored as required by such regulations and
permit conditions for a period not to exceed four years
after closure to demonstrate that there is no
substantial likelihood that any migration offsite or
release from confinement of any hazardous substance or
other risk to public health or welfare will occur.
(2) Such transfer of liability shall be effective ninety
days after the owner or operator of such facility notifies the
Administrator of the Environmental Protection Agency (and the
State where it has an authorized program under section 3006(b)
of the Solid Waste Disposal Act) that the conditions imposed by
this subsection have been satisfied. If within such ninety-day
period the Administrator of the Environmental Protection Agency
or such State determines that any such facility has not
complied with all the conditions imposed by this subsection or
that insufficient information has been provided to demonstrate
such compliance, the Administrator or such State shall so
notify the owner and operator of such facility and the
administrator of the Fund established by section 232 \52\ of
this Act, and the owner and operator of such facility shall
continue to be liable with respect to such facility under this
section and other law until such time as the Administrator and
such State determines that such facility has complied with all
conditions imposed by this subsection. A determination by the
Administrator or such State that a facility has not complied
with all conditions imposed by this subsection or that
insufficient information has been supplied to demonstrate
compliance, shall be a final administrative action for purposes
of judicial review. A request for additional information shall
state in specific terms the data required.
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\52\ See footnote 1 on previous page.
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(3) In addition to the assumption of liability of owners
and operators under paragraph (1) of this subsection, the Post-
closure Liability Fund established by section 232 \1\ of this
Act may be used to pay costs of monitoring and care and
maintenance of a site incurred by other persons after the
period of monitoring required by regulations under subtitle C
of the Solid Waste Disposal Act for hazardous waste disposal
facilities meeting the conditions of paragraph (1) of this
subsection.
(4)(A) Not later than one year after the date of
enactment of this Act, the Secretary of the Treasury shall
conduct a study and shall submit a report thereon to the
Congress on the feasibility of establishing or qualifying an
optional system of private insurance for postclosure financial
responsibility for hazardous waste disposal facilities to which
this subsection applies. Such study shall include a
specification of adequate and realistic minimum standards to
assure that any such privately placed insurance will carry out
the purposes of this subsection in a reliable, enforceable, and
practical manner. Such a study shall include an examination of
the public and private incentives, programs, and actions
necessary to make privately placed insurance a practical and
effective option to the financing system for the Post-closure
Liability Fund provided in title II of this Act.
(B) Not later than eighteen months after the date of
enactment of this Act and after a public hearing, the President
shall by rule determine whether or not it is feasible to
establish or qualify an optional system of private insurance
for postclosure financial responsibility for hazardous waste
disposal facilities to which this subsection applies. If the
President determines the establishment or qualification of such
a system would be infeasible, he shall promptly publish an
explanation of the reasons for such a determination. If the
President determines the establishment or qualification of such
a system would be feasible, he shall promptly publish notice of
such determination. Not later than six months after an
affirmative determination under the preceding sentence and
after a public hearing, the President shall by rule promulgate
adequate and realistic minimum standards which must be met by
any such privately placed insurance, taking into account the
purposes of this Act and this subsection. Such rules shall also
specify reasonably expeditious procedures by which privately
placed insurance plans can qualify as meeting such minimum
standards.
(C) In the event any privately placed insurance plan
qualifies under subparagraph (B), any person enrolled in, and
complying with the terms of, such plan shall be excluded from
the provisions of paragraphs (1), (2), and (3) of this
subsection and exempt from the requirements to pay any tax or
fee to the Post-closure Liability Fund under title II of this
Act.
(D) The President may issue such rules and take such
other actions as are necessary to effectuate the purposes of
this paragraph.
(5) Suspension of Liability Transfer.--Notwithstanding
paragraphs (1), (2), (3), and (4) of this subsection and
subsection (j) of section 111 of this Act, no liability shall
be transferred to or assumed by the Post-Closure Liability
Trust Fund established by section 232 of this Act prior to
completion of the study required under paragraph (6) of this
subsection, transmission of a report of such study to both
Houses of Congress, and authorization of such a transfer or
assumption by Act of Congress following receipt of such study
and report.
(6) Study of Options for Post-closure Program.--
(A) Study.--The Comptroller General shall conduct a
study of options for a program for the management of
the liabilities associated with hazardous waste
treatment, storage, and disposal sites after their
closure which complements the policies set forth in the
Hazardous and Solid Waste Amendments of 1984 and
assures the protection of human health and the
environment.
(B) Program elements.--The program referred to in
subparagraph (A) shall be designed to assure each of
the following:
(i) Incentives are created and maintained
for the safe management and disposal of
hazardous wastes so as to assure protection of
human health and the environment.
(ii) Members of the public will have
reasonable confidence that hazardous wastes
will be managed and disposed of safely and that
resources will be available to address any
problems that may arise and to cover costs of
long-term monitoring, care, and maintenance of
such sites.
(iii) Persons who are or seek to become
owners and operators of hazardous waste
disposal facilities will be able to manage
their potential future liabilities and to
attract the investment capital necessary to
build, operate, and close such facilities in a
manner which assures protection of human health
and the environment.
(C) Assessments.--The study under this paragraph
shall include assessments of treatment, storage, and
disposal facilities which have been or are likely to be
issued a permit under section 3005 of the Solid Waste
Disposal Act and the likelihood of future insolvency on
the part of owners and operators of such facilities.
Separate assessments shall be made for different
classes of facilities and for different classes of land
disposal facilities and shall include but not be
limited to--
(i) the current and future financial
capabilities of facility owners and operators;
(ii) the current and future costs
associated with facilities, including the costs
of routine monitoring and maintenance,
compliance monitoring, corrective action,
natural resource damages, and liability for
damages to third parties; and
(iii) the availability of mechanisms by
which owners and operators of such facilities
can assure that current and future costs,
including post-closure costs, will be financed.
(D) Procedures.--In carrying out the
responsibilities of this paragraph, the Comptroller
General shall consult with the Administrator, the
Secretary of Commerce, the Secretary of the Treasury,
and the heads of other appropriate Federal agencies.
(E) Consideration of options.--In conducting the
study under this paragraph, the Comptroller General
shall consider various mechanisms and combinations of
mechanisms to complement the policies set forth in the
Hazardous and Solid Waste Amendments of 1984 to serve
the purposes set forth in subparagraph (B) and to
assure that the current and future costs associated
with hazardous waste facilities, including post-closure
costs, will be adequately financed and, to the greatest
extent possible, borne by the owners and operators of
such facilities. Mechanisms to be considered include,
but are not limited to--
(i) revisions to closure, post-closure, and
financial responsibility requirements under
subtitles C and I of the Solid Waste Disposal
Act;
(ii) voluntary risk pooling by owners and
operators;
(iii) legislation to require risk pooling
by owners and operators;
(iv) modification of the Post-Closure
Liability Trust Fund previously established by
section 232 of this Act, and the conditions for
transfer of liability under this subsection,
including limiting the transfer of some or all
liability under this subsection only in the
case of insolvency of owners and operators;
(v) private insurance;
(vi) insurance provided by the Federal
Government;
(vii) coinsurance, reinsurance, or pooled-
risk insurance, whether provided by the private
sector or provided or assisted by the Federal
Government; and
(viii) creation of a new program to be
administered by a new or existing Federal
agency or by a federally chartered corporation.
(F) Recommendations.--The Comptroller General shall
consider options for funding any program under this
section and shall, to the extent necessary, make
recommendations to the appropriate committees of
Congress for additional authority to implement such
program.
(l) Federal Lien.--
(1) In general.--All costs and damages for which a
person is liable to the United States under subsection
(a) of this section (other than the owner or operator
of a vessel under paragraph (1) of subsection (a))
shall constitute a lien in favor of the United States
upon all real property and rights to such property
which--
(A) belong to such person; and
(B) are subject to or affected by a removal
or remedial action.
(2) Duration.--The lien imposed by this subsection
shall arise at the later of the following:
(A) The time costs are first incurred by
the United States with respect to a response
action under this Act.
(B) The time that the person referred to in
paragraph (1) is provided (by certified or
registered mail) written notice of potential
liability.
Such lien shall continue until the liability for the
costs (or a judgment against the person arising out of
such liability) is satisfied or becomes unenforceable
through operation of the statute of limitations
provided in section 113.
(3) Notice and validity.--The lien imposed by this
subsection shall be subject to the rights of any
purchaser, holder of a security interest, or judgment
lien creditor whose interest is perfected under
applicable State law before notice of the lien has been
filed in the appropriate office within the State (or
county or other governmental subdivision), as
designated by State law, in which the real property
subject to the lien is located. Any such purchaser,
holder of a security interest, or judgment lien
creditor shall be afforded the same protections against
the lien imposed by this subsection as are afforded
under State law against a judgment lien which arises
out of an unsecured obligation and which arises as of
the time of the filing of the notice of the lien
imposed by this subsection. If the State has not by law
designated one office for the receipt of such notices
of liens, the notice shall be filed in the office of
the clerk of the United States district court for the
district in which the real property is located. For
purposes of this subsection, the terms ``purchaser''
and ``security interest'' shall have the definitions
provided under section 6323(h) of the Internal Revenue
Code of 1954.
(4) Action in rem.--The costs constituting the lien
may be recovered in an action in rem in the United
States district court for the district in which the
removal or remedial action is occurring or has
occurred. Nothing in this subsection shall affect the
right of the United States to bring an action against
any person to recover all costs and damages for which
such person is liable under subsection (a) of this
section.
(m) Maritime Lien.--All costs and damages for which the
owner or operator of a vessel is liable under subsection (a)(1)
with respect to a release or threatened release from such
vessel shall constitute a maritime lien in favor of the United
States on such vessel. Such costs may be recovered in an action
in rem in the district court of the United States for the
district in which the vessel may be found. Nothing in this
subsection shall affect the right of the United States to bring
an action against the owner or operator of such vessel in any
court of competent jurisdiction to recover such costs.
(n) \53\ Liability of Fiduciaries.--
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\53\ Subtitle E of title II of Public Law 104-208 added subsection
(n) to section 107. Sections 2504 and 2505 of that subtitle provide:
SEC. 2504. LENDER LIABILITY RULE.
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(a) In General.--Effective on the date of enactment of this Act,
the portion of the final rule issued by the Administrator of the
Environmental Protection Agency on April 29, 1992 (57 Fed. Reg.
18,344), prescribing section 300.1105 of title 40, Code of Federal
Regulations, shall be deemed to have been validly issued under
authority of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.) and to have been
effective according to the terms of the final rule. No additional
judicial proceedings shall be necessary or may be held with respect to
such portion of the final rule. Any reference in that portion of the
final rule to section 300.1100 of title 40, Code of Federal
Regulations, shall be deemed to be a reference to the amendments made
by this subtitle.
(b) Judicial Review.--Notwithstanding section 113(a) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9613(a)), no court shall have jurisdiction to review
the portion of the final rule issued by the Administrator of the
Environmental Protection Agency on April 29, 1992 (57 Fed. Reg. 18,344)
that prescribed section 300.1105 of title 40, Code of Federal
Regulations.
(c) Amendment.--No provision of this section shall be construed as
limiting the authority of the President or a delegee of the President
to amend the portion of the final rule issued by the Administrator of
the Environmental Protection Agency on April 29, 1992 (57 Fed. Reg.
18,344), prescribing section 300.1105 of title 40, Code of Federal
Regulations, consistent with the amendments made by this subtitle and
other applicable law.
(d) Judicial Review.--No provision of this section shall be
construed as precluding judicial review of any amendment of section
300.1105 of title 40, Code of Federal Regulations, made after the date
of enactment of this Act.
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SEC. 2505. EFFECTIVE DATE.
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The amendments made by this subtitle shall be applicable with
respect to any claim that has not been finally adjudicated as of the
date of enactment of this Act.
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(1) In general.--The liability of a fiduciary under
any provision of this Act for the release or threatened
release of a hazardous substance at, from, or in
connection with a vessel or facility held in a
fiduciary capacity shall not exceed the assets held in
the fiduciary capacity.
(2) Exclusion.--Paragraph (1) does not apply to the
extent that a person is liable under this Act
independently of the person's ownership of a vessel or
facility as a fiduciary or actions taken in a fiduciary
capacity.
(3) Limitation.--Paragraphs (1) and (4) do not
limit the liability pertaining to a release or
threatened release of a hazardous substance if
negligence of a fiduciary causes or contributes to the
release or threatened release.
(4) Safe harbor.--A fiduciary shall not be liable
in its personal capacity under this Act for--
(A) undertaking or directing another person
to undertake a response action under subsection
(d)(1) or under the direction of an on scene
coordinator designated under the National
Contingency Plan;
(B) undertaking or directing another person
to undertake any other lawful means of
addressing a hazardous substance in connection
with the vessel or facility;
(C) terminating the fiduciary relationship;
(D) including in the terms of the fiduciary
agreement a covenant, warranty, or other term
or condition that relates to compliance with an
environmental law, or monitoring, modifying or
enforcing the term or condition;
(E) monitoring or undertaking 1 or more
inspections of the vessel or facility;
(F) providing financial or other advice or
counseling to other parties to the fiduciary
relationship, including the settlor or
beneficiary;
(G) restructuring, renegotiating, or
otherwise altering the terms and conditions of
the fiduciary relationship;
(H) administering, as a fiduciary, a vessel
or facility that was contaminated before the
fiduciary relationship began; or
(I) declining to take any of the actions
described in subparagraphs (B) through (H).
(5) Definitions.--As used in this Act:
(A) Fiduciary.--The term ``fiduciary''--
(i) means a person acting for the
benefit of another party as a bona
fide--
(I) trustee;
(II) executor;
(III) administrator;
(IV) custodian;
(V) guardian of estates or
guardian ad litem;
(VI) receiver;
(VII) conservator;
(VIII) committee of estates
of incapacitated persons;
(IX) personal
representative;
(X) trustee (including a
successor to a trustee) under
an indenture agreement, trust
agreement, lease, or similar
financing agreement, for debt
securities, certificates of
interest or certificates of
participation in debt
securities, or other forms of
indebtedness as to which the
trustee is not, in the capacity
of trustee, the lender; or
(XI) representative in any
other capacity that the
Administrator, after providing
public notice, determines to be
similar to the capacities
described in subclauses (I)
through (X); and
(ii) does not include--
(I) a person that is acting
as a fiduciary with respect to
a trust or other fiduciary
estate that was organized for
the primary purpose of, or is
engaged in, actively carrying
on a trade or business for
profit, unless the trust or
other fiduciary estate was
created as part of, or to
facilitate, 1 or more estate
plans or because of the
incapacity of a natural person;
or
(II) a person that acquires
ownership or control of a
vessel or facility with the
objective purpose of avoiding
liability of the person or of
any other person.
(B) Fiduciary capacity.--The term
``fiduciary capacity'' means the capacity of a
person in holding title to a vessel or
facility, or otherwise having control of or an
interest in the vessel or facility, pursuant to
the exercise of the responsibilities of the
person as a fiduciary.
(6) Savings clause.--Nothing in this subsection--
(A) affects the rights or immunities or
other defenses that are available under this
Act or other law that is applicable to a person
subject to this subsection; or
(B) creates any liability for a person or a
private right of action against a fiduciary or
any other person.
(7) No effect on certain persons.--Nothing in this
subsection applies to a person if the person--
(A)(i) acts in a capacity other than that
of a fiduciary or in a beneficiary capacity;
and
(ii) in that capacity, directly or
indirectly benefits from a trust or fiduciary
relationship; or
(B)(i) is a beneficiary and a fiduciary
with respect to the same fiduciary estate; and
(ii) as a fiduciary, receives benefits that
exceed customary or reasonable compensation,
and incidental benefits, permitted under other
applicable law.
(8) Limitation.--This subsection does not preclude
a claim under this Act against--
(A) the assets of the estate or trust
administered by the fiduciary; or
(B) a nonemployee agent or independent
contractor retained by a fiduciary.
(o) Contiguous Properties.--
(1) Not considered to be an owner or operator.--A
person that owns or operates real property that is
contiguous to or otherwise similarly situated with
respect to real property on which there has been a
release or threatened release of a hazardous substance
and that is or may be contaminated by the release shall
not be considered to be an owner or operator of a
vessel or facility under subparagraph (C) or (D) of
subsection (a)(1) solely by reason of the contamination
if--
(A) the person did not cause, contribute,
or consent to the release or threatened
release;
(B) the person is not affiliated through
any familial or corporate relationship with any
person that is or was a party potentially
responsible for response costs as the facility;
and
(C) the person exercised appropriate care
with respect to each hazardous substance found
at the facility by taking reasonable steps to
stop any continuing release, prevent any
threatened future release and prevent or limit
human or natural resource exposure to any
previously released hazardous substance.
(2) Cooperation, assistance, and access.--
Notwithstanding paragraph (1), the President may
decline to offer a settlement to a potentially
responsible party under this paragraph if the President
determines that the potentially responsible party has
failed to substantially comply with the requirement
stated in subsection (y) with respect to the facility.
(3) Assurances.--The Administrator may--
(A) issue an assurance that no enforcement
action under this Act will be initiated against
a person described in paragraph (1); and
(B) grant a person described in paragraph
(1) protection against a cost recovery or
contribution action under section 113(f).
(p) Prospective Purchaser and Windfall Lien.--
(1) Limitation on liability.--Notwithstanding
subsection (a), a bona fide prospective purchaser whose
potential liability for a release or threatened release
is based solely on the purchaser's being considered to
be an owner or operator of a facility shall not be
liable as long as the bona fide prospective purchaser
does not impede the performance of a response action or
natural resource restoration.
(2) Lien.--If there are unrecovered response costs
at a facility for which an owner of the facility is not
liable by reason of subsection (n)(1) and each of the
conditions described in paragraph (3) is met, the
United States shall have a lien on the facility, or may
obtain from appropriate responsible party a lien on any
other property or other assurances of payment
satisfactory to the Administrator, for such unrecovered
costs.
(3) Conditions.--The conditions referred to in
paragraph (1) are the following:
(A) Response action.--A response action for
which there are unrecovered costs is carried
out at the facility.
(B) Fair market value.--The response action
increases the fair market value of the facility
above the fair market value of the facility
that existed 180 days before the response
action was initiated.
(C) Sale.--A sale or other disposition of
all or a portion of the facility has occurred.
(4) Amount.--A lien under paragraph (2)--
(A) shall not exceed the increase in fair
market value of the property attributable to
the response action at the time of a subsequent
sale or other disposition of the property;
(B) shall arise at the time at which costs
are first incurred by the United States with
respect to a response action at the facility;
(C) shall be subject to the requirements of
subsection (l)(3); and
(D) shall continue until the earlier of
satisfaction of the lien or recovery of all
response costs incurred at the facility.
(q) Liability Exemption for Municipal Solid Waste and
Sewage Sludge.--
(1) In general.--No person shall be liable to the
United States or to any other person (including
liability for contribution) under this section or any
other Federal or State law for any response costs
incurred after the date of enactment of this subsection
at a facility listed on the National Priorities List to
the extent that--
(A) the person is liable solely under
subparagraph (C) or (D) of subsection (a)(1);
and
(B) the person is--
(i) an owner, operator, or lessee
of residential property from which all
of the person's municipal solid waste
was generated;
(ii) a business entity that, during
the tax year preceding the date of
transmittal of written notification
that the business is potentially
liable, employs not more than 100
individuals; or
(iii) a nonprofit organization
described in section 501(c)(3) of the
Internal Revenue Code of 1986 that
employs not more than 100 individuals,
from which all of the person's
municipal solid waste was generated.
(2) Exceptions.--Paragraph (1) shall not apply in a
case in which the person has failed to substantially
comply with the requirement stated in subsection (y)
with respect to the facility.
(3) Costs and fees.--A person that, lacking a
reasonable basis in law or fact, commences an action
for recovery of response costs or for contribution
against a person that is not liable by operation of
this subsection shall be liable to the defendant for
all reasonable costs of defending the action, including
all reasonable attorney's fees and expert witness fees.
(r) De Micromis Contributor Exemption.--
(1) In general.--In the case of a vessel or
facility listed on the National Priorities List, no
person described in subparagraph (C) or (D) of
subsection (a)(1) shall be liable to the United States
or to any other person (including liability for
contribution) for any response costs under this section
or any other Federal or State law incurred after the
date of enactment of this subsection, if the activity
specifically attributable to the person resulted in the
disposal or treatment of not more than 200 pounds or
110 gallons of material containing a hazardous
substance at the vessel or facility before January 1,
1997, or such greater amount as the Administrator may
determine by regulation.
(2) Exception.--Paragraph (1) shall not apply in a
case in which the Administrator determines that--
(A) material described in paragraph (1) has
contributed or may contribute significantly,
individually, to the amount of response costs
at the facility; or
(B) the person has failed to substantially
comply with the requirement stated in
subsection (y) with respect to the vessel or
facility.
(3) Costs and fees.--A person that, lacking a
reasonable basis in law or fact, commences an action
for recovery of response costs or for contribution
against a person that is not liable by operation of
this subsection shall be liable to the defendant for
all reasonable costs of defending the action, including
all reasonable attorney's fees and expert witness fees.
(s) Small Business Exemption.--
(1) In general.--No person shall be liable to the
United States or to any person (including liability for
contribution) under this section or any other Federal
or State law for any response costs at a facility
listed on the National Priorities List incurred after
the date of enactment of this subsection if--
(A) the person is a business that--
(i) during the taxable year
preceding the date of transmittal of
notification that the business is a
potentially responsible party, had
full- and part-time employees whose
combined time was equivalent to 75 or
fewer full-time employees; or
(ii) for that taxable year reported
$3,000,000 or less in gross revenue;
(B) the activity specifically attributable
to the person resulted in the disposal or
treatment of material containing a hazardous
substance at the vessel or facility before
January 1, 1997; and
(C) the person is not affiliated through
any familial or corporate relationship with any
person that is or was a party potentially
responsible for response costs at the facility.
(2) Exception.--Paragraph (1) shall not apply in a
case in which--
(A) the material containing a hazardous
substance referred to in subparagraph (A)
contributed significantly or could contribute
significantly to the cost of the response
action with respect to the facility; or
(B) the person has failed to substantially
comply with the requirement stated in
subsection (y) with respect to the facility.
(3) Costs and fees.--A person that, lacking a
reasonable basis in law or fact, commences an action
for recovery of response costs or for contribution
against a person that is not liable by operation of
this subsection shall be liable to the defendant for
all reasonable costs of defending the action, including
all reasonable attorney's fees and expert witness fees.
(t) Codisposal Landfill Exemption and Limitations.--
(1) Liability cap applicable to generators and
transporters of municipal solid waste.--
(A) Allocation process.--A person liable as
a generator or transporter of municipal solid
waste or sewage sludge (not otherwise exempted
by subsection (q)) shall have its potential
liability determined in an expedited settlement
process under section 137(e) or an allocation
process under section 137(f).
(B) Liability cap.--To the extent that a
person or group of persons is liable as a
generator or transporter of municipal solid
waste or sewage sludge (not otherwise exempted
by subsection (q)), the total aggregate
liability for all such persons or groups of
persons for response costs incurred after the
date of enactment of this section, pursuant to
this section or any other Federal or State law,
shall not be greater than 10 percent of such
costs.
(2) Municipal owners and operators.--
(A) Aggregate liability of large
municipalities.--
(i) In general.--With respect to a
codisposal landfill that is owned or
operated in whole or in part by
municipalities with a population of
100,000 or more (according to the 1990
census), and that is not subject to the
criteria for solid waste landfills
published under subtitle D of the Solid
Waste Disposal Act (42 U.S.C. 6941 et
seq.) at part 258 of title 40, Code of
Federal Regulations (or a successor
regulation), the aggregate amount of
liability of such municipal owners and
operators for response costs incurred
after the date of enactment of this
section under this section or any other
Federal or State law shall be not
greater than 20 percent of such costs.
(ii) Increased amount.--The
President or the allocator may increase
the percentage under clause (i) to not
more than 35 percent with respect to a
municipality if the President or
allocator determines that the
municipality committed specific acts
that exacerbated environmental
contamination or exposure with respect
to the facility.
(iii) Decreased amount.--The
President or the allocator may decrease
the percentage under clause (i) with
respect to a municipality to not less
than 10 percent if the President or
allocator determines that the
municipality took specific acts of
mitigation during the operation of the
facility to avoid environmental
contamination or exposure with respect
to the facility.
(B) Aggregate liability of small
municipalities.--
(i) In general.--With respect to a
codisposal landfill that is owned or
operated in whole or in part by
municipalities with a population of
less than 100,000 (according to the
1990 census), that is not subject to
the criteria for solid waste landfills
published under subtitle D of the Solid
Waste Disposal Act (42 U.S.C. 6941 et
seq.) at part 258 of title 40, Code of
Federal Regulations (or a successor
regulation), the aggregate amount of
liability of such municipal owners and
operators for response costs incurred
after the date of enactment of this
section under this section or any other
Federal or State law shall be not
greater than 10 percent of such costs.
(ii) Increased amount.--The
President or the allocator may increase
the percentage under clause (i) to not
more than 20 percent with respect to a
municipality if the President or
allocator determines that the
municipality committed specific acts
that exacerbated environmental
contamination or exposure with respect
to the facility.
(iii) Decreased amount.--The
President or the allocator may decrease
the percentage under clause (i) with
respect to a municipality to not less
than 5 percent if the President or
allocator determines that the
municipality took specific acts of
mitigation during the operation of the
facility to avoid environmental
contamination or exposure with respect
to the facility.
(C) Settlement amount.--The President, as
soon as reasonably practicable after the date
of enactment of this subsection, shall offer a
settlement to a municipality with respect to
the liability described in subparagraph (A) or
(B).
(3) Applicability.--This subsection shall not apply
to--
(A) a person that acted in violation of
subtitle C of the Solid Waste Disposal Act (42
U.S.C. 6921 et seq.) at a facility that is
subject to a response action under this title,
if the violation pertains to a hazardous
substance the release of threat of release of
which caused the incurrence of response costs
at the facility;
(B) a person that owned or operated a
codisposal landfill in violation of the
applicable requirements for municipal solid
waste landfill units under subtitle D of the
Solid Waste Disposal Act (42 U.S.C. 6941 et
seq.) after October 9, 1991, if the violation
pertains to a hazardous substance the release
of threat of release of which caused the
incurrence of response costs at the facility;
or
(C) a person described in section 137(s).
(4) Performance of response actions.--As a
condition of a settlement with a municipality under
this subsection, the President may require that the
municipality perform or participate in the performance
of the response actions at the facility.
(5) Waiver of claims.--The President shall require,
as a condition of a settlement under this subsection,
that a municipality or combination of 2 or more
municipalities waive claims (including a claim for
contribution under section 113) that the party may have
against other potentially responsible parties for all
response costs incurred after the date of enactment of
this subsection addressed in the settlement at the
facility.
(6) Exceptions.--The President may decline to offer
a settlement under this subsection with respect to a
facility if the President determines that--
(A) all known potentially responsible
parties are insolvent, defunct, or eligible for
a settlement under this subsection or section
122(g); or
(B) the municipal owner or operator has
failed to substantially comply with the
requirement stated in subsection (y) with
respect to the facility.
(u) Certain Facilities Owned by Local Governments.--A
general purpose unit of local government that, as a result of
tax forfeiture, abandonment, bankruptcy, or foreclosure, has
acquired a facility--
(1) at which there has been a release or threatened
release of a hazardous substance; and
(2) that is or may be contaminated by the release;
shall not be considered to be an owner or operator of the
property for the purposes of this section or any other
provision of this Act.
(v) Religious, Charitable, Scientific, and Educational
Organizations.--
(1) Limitation on liability.--Subject to paragraph
(2), if an organization described in section 101(20)(I)
holds legal or equitable title to a vessel or facility
as a result of a charitable gift that is allowable as a
deduction under section 170, 2055, or 2522 of the
Internal Revenue Code of 1986 (determined without
regard to dollar limitations), the liability of the
organization shall be limited to the lesser of the fair
market value of the vessel or facility or the actual
proceeds of the sale of the vessel or facility received
by the organization.
(2) Conditions.--In order for an organization
described in section 101(20)(I) to be eligible for the
limited liability described in paragraph (1), the
organization shall--
(A) substantially comply with the
requirement of subsection (y) with respect to
the vessel or facility;
(B) provide full cooperation and assistance
to the United States in identifying and
locating persons who recently owned, operated,
or otherwise controlled activities at the
vessel or facility;
(C) establish by a preponderance of the
evidence that all active disposal of hazardous
substances at the vessel or facility occurred
before the organization acquired the vessel or
facility; and
(D) establish by a preponderance of the
evidence that the organization did not cause or
contribute to a release or threatened release
of hazardous substances at the vessel or
facility.
(3) Limitation.--Nothing in this subsection affects
the liability of a person other than a person described
in section 101(20)(I) that meets the conditions
specified in paragraph (2).
(w) Limitation on Liability of Railroad Owners.--
Notwithstanding subsection (a)(1), a person that substantially
complies with the requirement of subsection (y) with respect to
a facility shall not be liable under this Act to the extent
that liability is based solely on the status of the person as a
railroad owner or operator of a spur track, including a spur
track over land subject to an easement, to a facility that is
owned or operated by a person that is not affiliated with the
railroad owner or operator, if--
(1) the spur track provides access to a main line
or branch line track that is owned or operated by the
railroad;
(2) the spur track is 10 miles long or less; and
(3) the railroad owner or operator does not cause
or contribute to a release or threatened release at the
spur track.
(x) Liability of Recyclers.--
(1) Relief from liability.--Except as provided in
paragraph (6), a person that arranges for the recycling
of recyclable material at a consuming facility shall
not be liable for response costs under subparagraph (C)
or (D) of subsection (a)(1).
(2) Scrap glass, paper, plastic, rubber, or
textile.--For the purposes of paragraph (1), a person
shall be considered to arrange for the recycling of
scrap glass, paper, plastic, rubber, or textile if the
person that arranged for the transaction (by selling or
otherwise arranging for the recycling of the recyclable
material) demonstrates by a preponderance of the
evidence that all of the following were met at the time
of the transaction--
(A) the recyclable material meets a
commercial specification grade;
(B) a market exists for the recyclable
material;
(C) a substantial portion of the recyclable
material is made available for use as a
feedstock for the manufacture of a new saleable
product;
(D)(i) the recyclable material is a
replacement or substitute for a virgin raw
material;
(ii) the product to be made from the
recyclable material is a replacement or
substitute for a product made, in whole or in
part, from a virgin raw material; and
(E) in the case of a transaction that
occurs 90 days or more after the date of
enactment of this section, the person exercises
reasonable care to determine that the consuming
facility was in compliance with the substantive
(not procedural or administrative) provisions
of each Federal, State, and local environmental
law (including a regulation and any compliance
decree issued pursuant to an environmental law)
applicable to the handling, storage, or other
management activities associated with
recyclable material.
(3) Scrap metal.--For the purposes of paragraph
(1), a person shall be considered to arrange for the
recycling of scrap metal if the person that arranges
the transaction (by selling or otherwise arranging for
the recycling of the scrap metal) demonstrates by a
preponderance of the evidence that at the time of the
transaction--
(A) the conditions stated in subparagraphs
(A) through (E) of paragraph (2) are met; and
(B) in the case of a transaction that
occurs after the effective date of a standard,
established by the Administrator by regulation
under the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.), regarding the storage,
transport, management, or other activity
associated with the recycling of scrap metal,
the person is in compliance with the standard.
(4) Spent batteries.--For the purposes of paragraph
(1), a person shall be considered to arrange for the
recycling of a spent lead-acid battery, nickel-cadmium
battery, or other battery if the person that arranges
the transaction (by selling or arranging for the
recycling of the battery) demonstrates by a
preponderance of the evidence that at the time of the
transaction--
(A) the conditions stated in subparagraphs
(A) through (E) of paragraph (2) are met;
(B) the person does not reclaim the
valuable components of the battery; and
(C) in the case of a transaction that
occurs after the effective date of a standard,
established by the Administrator by regulation
under authority of the Solid Waste Disposal Act
(42 U.S.C. 6901 et seq.) or the Mercury-
Containing and Rechargeable Battery Management
Act), regarding the storage, transport,
management, or other activity associated with
the recycling of batteries, the person is in
compliance with the standard.
(5) Exceptions from liability relief.--
(A) In general.--A person that arranges for
the recycling of recyclable material that, but
for paragraph (2), would be liable under
subparagraph (C) or (D) of subsection (a)(1)
shall be liable notwithstanding that paragraph
if--
(i) the person had an objectively
reasonable basis to believe at the time
of the recycling transaction that--
(I) the recyclable material
will not be recycled;
(II) the recyclable
material will be burned as
fuel, for energy recovery or
incineration;
(III) in the case of a
transaction that occurs 90 days
after the date of enactment of
this section, the consuming
facility is not in compliance
with a substantive (not
procedural or administrative)
provision of any Federal,
State, or local environmental
law (including a regulation),
or a compliance order or decree
issued under such a law,
applicable to the handling,
processing, reclamation, or
other management activity
associated with the recyclable
material; or
(IV) a hazardous substance
has been added to the
recyclable material for
purposes other than processing
for recycling;
(ii) the person fails to exercise
reasonable care with respect to the
management or handling of the
recyclable material (including adhering
to customary industry practice current
at the time of the recycling
transaction); or
(iii) any item of the recyclable
material contains--
(I) polychlorinated
biphenyls at a concentration in
excess of 50 parts per million
(or any different concentration
specified in any applicable
standard that may be issued
under other Federal law after
the date of enactment of this
subsection); or
(II) in the case of a
transaction involving scrap
paper, any concentration of a
hazardous substance that the
Administrator determines by
regulation, issued after the
date of enactment of this
subsection and before the date
of the transaction, to present
a significant risk to human
health or the environment as a
result of its inclusion in the
paper recycling process.
(B) Objectively reasonable basis for
belief.--Whether a person has an objectively
reasonable basis for belief described in
subparagraph (A)(i) shall be determined using
criteria that include--
(i) the size of the person's
business;
(ii) customary industry practices
current at the time of the recycling
transaction (including practices
designed to minimize, through source
control, contamination of recyclable
material by hazardous substances);
(iii) the price paid or received in
the recycling transaction; and
(iv) the ability of the person to
detect the nature of the consuming
facility's operations concerning
handling, processing, or reclamation of
the recyclable material or other
management activities associated with
the recyclable material.
(C) Reasonable care.--
(i) In general.--For the purposes
of subparagraph (A)(ii), whether a
person exercised reasonable care shall
be determined using criteria that
include--
(I) the price paid in the
recycling transaction;
(II) the ability of the
person to detect the nature of
the consuming facility's
operations concerning its
handling, processing,
reclamation, or other
management activities
associated with recyclable
material; and
(III) the result of
inquiries made to the
appropriate Federal, State, or
local agencies regarding the
consuming facility's past and
current compliance with
substantive (not procedural or
administrative) provisions of
any Federal, State, or local
environmental law applicable to
the handling, processing,
reclamation, storage, or other
management activities
associated with recyclable
material.
(D) Substantive provision.--For the
purposes of subparagraph (A), a requirement to
obtain a permit applicable to the handling,
processing, reclamation, or other management
activity associated with recyclable material
constitutes a substantive provision.
(6) Regulations.--The Administrator may issue a
regulation that clarifies the meaning of any term used
in this subsection or by any other means makes clear
the application of this subsection to any person.
(7) Liability for attorney's fees for certain
actions.--A person that, after the date of enactment of
this subsection, commences a civil action in
contribution against a person that is not liable by
operation of this subsection shall be liable to that
person for all reasonable costs of defending the
action, including all reasonable attorney's fees and
expert witness fees.
(8) Relationship to liability under other laws.--
Nothing in this subsection shall affect--
(A) liability under any other Federal,
State, or local law (including a regulation);
or
(B) the authority of the Administrator to
issue regulations under the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.) or any
other law.
(C) Effect on nonrecyclers.--
(i) Costs borne by the united
states.--The estimated contribution
share attributable to a person engaged
in a recycling transaction occurring
before the date of enactment of this
section at a mandatory allocation
facility listed on the National
Priorities List before the date of
enactment of this section that, absent
this subsection, would be borne by a
person that is relieved of liability
(in whole or in part) by this
subsection shall be borne by the United
States, to the extent that the person
is relieved of liability.
(ii) Costs borne by remaining
potentially responsible parties.--At a
facility not described in subparagraph
(C)(i), the liability of any party
relieved of liability (in whole or in
part) by this subsection shall be borne
by the parties remaining liable under
this section.
(y) Requirement That Cooperation, Assistance, and Access Be
Provided.--The requirement of this subsection, applicable to a
person or other entity described in subsection (o), (p), (r),
(s), (t), (u), (v), (w), or (x) or section 112(g) is that--
(1) to the extent that the person or entity has
operational control over a vessel or facility--
(A) the person or entity provide full
cooperation to, assistance to, and access to
the vessel or facility by, persons that are
responsible for response actions at the vessel
or facility (including the cooperation and
access necessary for the installation,
integrity, operation, and maintenance of any
complete or partial response action at the
vessel or facility); and
(B) the person or entity take no action to
impede the effectiveness or integrity of any
institutional control employed under section
121 at the vessel or facility; and
(2) the person or entity comply with any request
for information or administrative subpoena issued by
the President under this Act.
[42 U.S.C. 9607]
financial responsibility
Sec. 108. (a)(1) The owner or operator of each vessel
(except a non-self-propelled barge that does not carry
hazardous substances as cargo) over three hundred gross tons
that uses any port or place in the United States or the
navigable waters or any offshore facility, shall establish and
maintain, in accordance with regulations promulgated by the
President, evidence of financial responsibility of $300 per
gross ton (or for a vessel carrying hazardous substances as
cargo, or $5,000,000, whichever is greater) to cover the
liability prescribed under paragraph (1) of section 107(a) of
this Act. Financial responsibility may be established by any
one, or any combination, of the following: insurance,
guarantee, surety bond, or qualification as a self-insurer. Any
bond filed shall be issued by a bonding company authorized to
do business in the United States. In cases where an owner or
operator owns, operates, or charters more than one vessel
subject to this subsection, evidence of financial
responsibility need be established only to meet the maximum
liability applicable to the largest of such vessels.
(2) The Secretary of the Treasury shall withhold or
revoke the clearance required by section 4197 of the Revised
Statutes of the United States of any vessel subject to this
subsection that does not have certification furnished by the
President that the financial responsibility provisions of
paragraph (1) of this subsection have been complied with.
(3) The Secretary of Transportation, in accordance with
regulations issued by him, shall (A) deny entry to any port or
place in the United States or navigable waters to, and (B)
detain at the port or place in the United States from which it
is about to depart for any other port or place in the United
States, any vessel subject to this subsection that, upon
request, does not produce certification furnished by the
President that the financial responsibility provisions of
paragraph (1) of this subsection have been complied with.
(4) In addition to the financial responsibility
provisions of paragraph (1) of this subsection, the President
shall require additional evidence of financial responsibility
for incineration vessels in such amounts, and to cover such
liabilities recognized by law, as the President deems
appropriate, taking into account the potential risks posed by
incineration and transport for incineration, and any other
factors deemed relevant.
(b)(1) Beginning not earlier than five years after the
date of enactment of this Act, the President shall promulgate
requirements (for facilities in addition to those under
subtitle C of the Solid Waste Disposal Act and other Federal
law) that classes of facilities establish and maintain evidence
of financial responsibility consistent with the degree and
duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances. Not later than three years after the date of
enactment of the Act, the President shall identify those
classes for which requirements will be first developed and
publish notice of such identification in the Federal Register.
Priority in the development of such requirements shall be
accorded to those classes of facilities, owners, and operators
which the President determines present the highest level of
risk of injury.
(2) The level of financial responsibility shall be
initially established, and, when necessary, adjusted to protect
against the level of risk which the President in his discretion
believes is appropriate based on the payment experience of the
Fund, commercial insurers, courts settlements and judgments,
and voluntary claims satisfaction. To the maximum extent
practicable, the President shall cooperate with and seek the
advice of the commercial insurance industry in developing
financial responsibility requirements. Financial responsibility
may be established by any one, or any combination, of the
following: insurance, guarantee, surety bond, letter of credit,
or qualification as a self-insurer. In promulgating
requirements under this section, the President is authorized to
specify policy or other contractual terms, conditions, or
defenses which are necessary, or which are unacceptable, in
establishing such evidence of financial responsibility in order
to effectuate the purposes of this Act.
(3) Regulations promulgated under this subsection shall
incrementally impose financial responsibility requirements as
quickly as can reasonably be achieved but in no event more than
4 years after the date of promulgation. Where possible, the
level of financial responsibility which the President believes
appropriate as a final requirement shall be achieved through
incremental, annual increases in the requirements.
(4) Where a facility is owned or operated by more than one
person, evidence of financial responsibility covering the
facility may be established and maintained by one of the owners
or operators, or, in consolidated form, by or on behalf of two
or more owners or operators. When evidence of financial
responsibility is established in a consolidated form, the
proportional share of each participant shall be shown. The
evidence shall be accompanied by a statement authorizing the
applicant to act for and in behalf of each participant in
submitting and maintaining the evidence of financial
responsibility.
(5) The requirements for evidence of financial
responsibility for motor carriers covered by this Act shall be
determined under section 30 of the Motor Carrier Act of 1980,
Public Law 96-296.
(c) Direct Action.--
(1) Releases from vessels.--In the case of a
release or threatened release from a vessel, any claim
authorized by section 107 or 111 may be asserted
directly against any guarantor providing evidence of
financial responsibility for such vessel under
subsection (a). In defending such a claim, the
guarantor may invoke all rights and defenses which
would be available to the owner or operator under this
title. The guarantor may also invoke the defense that
the incident was caused by the willful misconduct of
the owner or operator, but the guarantor may not invoke
any other defense that the guarantor might have been
entitled to invoke in a proceeding brought by the owner
or operator against him.
(2) Releases from facilities.--In the case of a
release or threatened release from a facility, any
claim authorized by section 107 or 111 may be asserted
directly against any guarantor providing evidence of
financial responsibility for such facility under
subsection (b), if the person liable under section 107
is in bankruptcy, reorganization, or arrangement
pursuant to the Federal Bankruptcy Code, or if, with
reasonable diligence, jurisdiction in the Federal
courts cannot be obtained over a person liable under
section 107 who is likely to be solvent at the time of
judgment. In the case of any action pursuant to this
paragraph, the guarantor shall be entitled to invoke
all rights and defenses which would have been available
to the person liable under section 107 if any action
had been brought against such person by the claimant
and all rights and defenses which would have been
available to the guarantor if an action had been
brought against the guarantor by such person.
(d) Limitation of Guarantor Liability.--
(1) Total liability.--The total liability of any
guarantor in a direct action suit brought under this
section shall be limited to the aggregate amount of the
monetary limits of the policy of insurance, guarantee,
surety bond, letter of credit, or similar instrument
obtained from the guarantor by the person subject to
liability under section 107 for the purpose of
satisfying the requirement for evidence of financial
responsibility.
(2) Other liability.--Nothing in this subsection
shall be construed to limit any other State or Federal
statutory, contractual, or common law liability of a
guarantor, including, but not limited to, the liability
of such guarantor for bad faith either in negotiating
or in failing to negotiate the settlement of any claim.
Nothing in this subsection shall be construed,
interpreted, or applied to diminish the liability of
any person under section 107 of this Act or other
applicable law.
[42 U.S.C. 9608]
Civil Penalties and Awards
Sec. 109. (a) Class I Administrative Penalty.--
(1) Violations.--A civil penalty of not more than
$25,000 per violation may be assessed by the President
in the case of any of the following--
(A) A violation of the requirements of
section 103 (a) or (b) (relating to notice).
(B) A violation of the requirements of
section 103(d)(2) (relating to destruction of
records, etc.).
(C) A violation of the requirements of
section 108 (relating to financial
responsibility, etc.), the regulations issued
under section 108, or with any denial or
detention order under section 108.
(D) A violation of an order under section
122(d)(3) (relating to settlement agreements
for action under section 104(b)).
(E) Any failure or refusal referred to in
section 122(l) (relating to violations of
administrative orders, consent decrees, or
agreements under section 120).
(2) Notice and hearings.--No civil penalty may be
assessed under this subsection unless the person
accused of the violation is given notice and
opportunity for a hearing with respect to the
violation.
(3) Determining amount.--In determining the amount
of any penalty assessed pursuant to this subsection,
the President shall take into account the nature,
circumstances, extent and gravity of the violation or
violations and, with respect to the violator, ability
to pay, any prior history of such violations, the
degree of culpability, economic benefit or savings (if
any) resulting from the violation, and such other
matters as justice may require.
(4) Review.--Any person against whom a civil
penalty is assessed under this subsection may obtain
review thereof in the appropriate district court of the
United States by filing a notice of appeal in such
court within 30 days from the date of such order and by
simultaneously sending a copy of such notice by
certified mail to the President. The President shall
promptly file in such court a certified copy of the
record upon which such violation was found or such
penalty imposed. If any person fails to pay an
assessment of a civil penalty after it has become a
final and unappealable order or after the appropriate
court has entered final judgment in favor of the United
States, the President may request the Attorney General
of the United States to institute a civil action in an
appropriate district court of the United States to
collect the penalty, and such court shall have
jurisdiction to hear and decide any such action. In
hearing such action, the court shall have authority to
review the violation and the assessment of the civil
penalty on the record.
(5) Subpoenas.--The President may issue subpoenas
for the attendance and testimony of witnesses and the
production of relevant papers, books, or documents in
connection with hearings under this subsection. In case
of contumacy or refusal to obey a subpoena issued
pursuant to this paragraph and served upon any person,
the district court of the United States for any
district in which such person is found, resides, or
transacts business, upon application by the United
States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to
appear and give testimony before the administrative law
judge or to appear and produce documents before the
administrative law judge, or both, and any failure to
obey such order of the court may be punished by such
court as a contempt thereof.
(b) Class II Administrative Penalty.--A civil penalty of
not more than $25,000 per day for each day during which the
violation continues may be assessed by the President in the
case of any of the following--
(1) A violation of the notice requirements of
section 103 (a) or (b).
(2) A violation of section 103(d)(2) (relating to
destruction of records, etc.).
(3) A violation of the requirements of section 108
(relating to financial responsibility, etc.), the
regulations issued under section 108, or with any
denial or detention order under section 108.
(4) A violation of an order under section 122(d)(3)
(relating to settlement agreements for action under
section 104(b)).
(5) Any failure or refusal referred to in section
122(l) (relating to violations of administrative
orders, consent decrees, or agreements under section
120).
In the case of a second or subsequent violation the amount of
such penalty may be not more than $75,000 for each day during
which the violation continues. Any civil penalty under this
subsection shall be assessed and collected in the same manner,
and subject to the same provisions, as in the case of civil
penalties assessed and collected after notice and opportunity
for hearing on the record in accordance with section 554 of
title 5 of the United States Code. In any proceeding for the
assessment of a civil penalty under this subsection the
President may issue subpoenas for the attendance and testimony
of witnesses and the production of relevant papers, books, and
documents and may promulgate rules for discovery procedures.
Any person who requested a hearing with respect to a civil
penalty under this subsection and who is aggrieved by an order
assessing the civil penalty may file a petition for judicial
review of such order with the United States Court of Appeals
for the District of Columbia Circuit or for any other circuit
in which such person resides or transacts business. Such a
petition may only be filed within the 30-day period beginning
on the date the order making such assessment was issued.
(c) Judicial Assessment.--The President may bring an action
in the United States district court for the appropriate
district to assess and collect a penalty of not more than
$25,000 per day for each day during which the violation (or
failure or refusal) continues in the case of any of the
following--
(1) A violation of the notice requirements of
section 103 (a) or (b).
(2) A violation of section 103(d)(2) (relating to
destruction of records, etc.).
(3) A violation of the requirements of section 108
(relating to financial responsibility, etc.), the
regulations issued under section 108, or with any
denial or detention order under section 108.
(4) A violation of an order under section 122(d)(3)
(relating to settlement agreements for action under
section 104(b)).
(5) Any failure or refusal referred to in section
122(l) (relating to violations of administrative
orders, consent decrees, or agreements under section
120).
In the case of a second or subsequent violation (or failure or
refusal), the amount of such penalty may be not more than
$75,000 for each day during which the violation (or failure or
refusal) continues. For additional provisions providing for
judicial assessment of civil penalties for failure to comply
with a request or order under section 104(e) (relating to
information gathering and access authorities), see section
104(e).
(d) Awards.--The President may pay an award of up to
$10,000 to any individual who provides information leading to
the arrest and conviction of any person for a violation subject
to a criminal penalty under this Act, including any violation
of section 103 and any other violation referred to in this
section. The President shall, by regulation, prescribe criteria
for such an award and may pay any award under this subsection
from the Fund, as provided in section 111.
(e) Procurement Procedures.--Notwithstanding any other
provision of law, any executive agency may use competitive
procedures or procedures other than competitive procedures to
procure the services of experts for use in preparing or
prosecuting a civil or criminal action under this Act, whether
or not the expert is expected to testify at trial. The
executive agency need not provide any written justification for
the use of procedures other than competitive procedures when
procuring such expert services under this Act and need not
furnish for publication in the Commerce Business Daily or
otherwise any notice of solicitation or synopsis with respect
to such procurement.
(f) Savings Clause.--Action taken by the President pursuant
to this section shall not affect or limit the President's
authority to enforce any provisions of this Act.
[42 U.S.C. 9609]
employee protection
Sec. 110. (a) No person shall fire or in any other way
discriminate against, or cause to be fired or discriminated
against, any employee or any authorized representative of
employees by reason of the fact that such employee or
representative has provided information to a State or to the
Federal Government, filed, instituted, or caused to be filed or
instituted any proceeding under this Act, or has testified or
is about to testify in any proceeding resulting from the
administration or enforcement of the provisions of this Act.
(b) Any employee or a representative of employees who
believes that he has been fired or otherwise discriminated
against by any person in violation of subsection (a) of this
section may, within thirty days after such alleged violation
occurs, apply to the Secretary of Labor for a review of such
firing or alleged discrimination. A copy of the application
shall be sent to such person, who shall be the respondent. Upon
receipt of such application, the Secretary of Labor shall cause
such investigation to be made as he deems appropriate. Such
investigation shall provide an opportunity for a public hearing
at the request of any party to such review to enable the
parties to present information relating to such alleged
violation. The parties shall be given written notice of the
time and place of the hearing at least five days prior to the
hearing. Any such hearing shall be of record and shall be
subject to section 554 of title 5, United States Code. Upon
receiving the report of such investigation, the Secretary of
Labor shall make findings of fact. If he finds that such
violation did occur, he shall issue a decision, incorporating
an order therein and his findings, requiring the party
committing such violation to take such affirmative action to
abate the violation as the Secretary of Labor deems
appropriate, including, but not limited to, the rehiring or
reinstatement of the employee or representative of employees to
his former position with compensation. If he finds that there
was no such violation, he shall issue an order denying the
application. Such order issued by the Secretary of Labor under
this subparagraph shall be subject to judicial review in the
same manner as orders and decisions are subject to judicial
review under this Act.
(c) Whenever an order is issued under this section to abate
such violation, at the request of the applicant a sum equal to
the aggregate amount of all costs and expenses (including the
attorney's fees) determined by the Secretary of Labor to have
been reasonably incurred by the applicant for, or in connection
with, the institution and prosecution of such proceedings,
shall be assessed against the person committing such violation.
(d) This section shall have no application to any employee
who acting without discretion from his employer (or his agent)
deliberately violates any requirement of this Act.
(e) The President shall conduct continuing evaluations of
potential loss of shifts of employment which may result from
the administration or enforcement of the provisions of this
Act, including, where appropriate, investigating threatened
plant closures or reductions in employment allegedly resulting
from such administration or enforcement. Any employee who is
discharged, or laid off, threatened with discharge or layoff,
or otherwise discriminated against by any person because of the
alleged results of such administration or enforcement, or any
representative of such employee, may request the President to
conduct a full investigation of the matter and, at the request
of any party, shall hold public hearings, require the parties,
including the employer involved, to present information
relating to the actual or potential effect of such
administration or enforcement on employment and any alleged
discharge, layoff, or other discrimination, and the detailed
reasons or justification therefore.\54\ Any such hearing shall
be of record and shall be subject to section 554 of title 5,
United States Code. Upon receiving the report of such
investigation, the President shall make findings of fact as to
the effect of such administration or enforcement on employment
and on the alleged discharge, layoff, or discrimination and
shall make such recommendations as he deems appropriate. Such
report, findings, and recommendations shall be available to the
public. Nothing in this subsection shall be construed to
require or authorize the President or any State to modify or
withdraw any action, standard, limitation, or any other
requirement of this Act.
---------------------------------------------------------------------------
\54\ So in law.
---------------------------------------------------------------------------
[42 U.S.C. 9610]
uses of fund
Sec. 111. (a) In General.--For the purposes specified in
this section there is authorized to be appropriated from the
Hazardous Substance Superfund established under subchapter A of
chapter 98 of the Internal Revenue Code of 1986 [not more than
$8,500,000,000 for the 5-year period beginning on the date of
enactment of the Superfund Amendments and Reauthorization Act
of 1986, and not more than $5,100,000,000 for the period
commencing October 1, 1991, and ending September 30, 1994,] a
total of $7,500,000,000 for fiscal years 1999 through 2003 and
such sums shall remain available until expended. The preceding
sentence constitutes a specific authorization for the funds
appropriated under title II of Public Law 99-160 (relating to
payment to the Hazardous Substances Trust Fund). The President
shall use the money in the Fund for the following purposes:
(1) Payment of governmental response costs incurred
pursuant to section 104 of this title, including costs
incurred pursuant to the Intervention on the High Seas
Act.
(2) Payment of any claim for necessary response
costs incurred by any other person as a result of
carrying out the national contingency plan established
under section 311(c) \55\ of the Clean Water Act and
amended by section 105 of this title: Provided,
however, That such costs must be approved under said
plan and certified by the responsible Federal official.
---------------------------------------------------------------------------
\55\ Probably should refer to section 311(d). See footnote 1 under
section 105.
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(3) Payment of any claim authorized by subsection
(b) of this section and finally decided pursuant to
section 112 of this title, including those costs set
out in subsection 112(c)(3) of this title.
(4) Payment of costs specified under subsection (c)
of this section.
(5) Grants for technical assistance.--The cost of
grants under section [117(e)] 117(f) (relating to
public participation grants forechnical assistance).
(6) Lead contaminated soil.--Payment of not to
exceed $15,000,000 for the costs of a pilot program for
removal, decontamination, or other action with respect
to lead-contaminated soil in one to three different
metropolitan areas.
The President shall not pay for any administrative costs or
expenses out of the Fund unless such costs and expenses are
reasonably necessary for and incidental to the implementation
of this title.
(7) Grants to authorized states and delegated
states.--Making a grant to an authorized State or
delegated State under section 130(g).
(8) Orphan share funding.--Payment of orphan shares
under section 137, which shall be mandatory direct
spending to the extent of--
(A) for fiscal year 1999, $200,000,000;
(B) for fiscal year 2000, $350,000,000;
(C) for fiscal year 2001, $300,000,000;
(D) for fiscal year 2002, $300,000,000;
(E) for fiscal year 2003, $300,000,000; and
(F) for fiscal year 2004 and each fiscal
year thereafter, $250,000,000.
(9) Reimbursement of potentially responsible
parties.--If--
(A) a potentially responsible party and the
Administrator enter into a settlement under
this Act under which the Administrator is
reimbursed for the response costs of the
Administrator; and
(B) the Administrator determines, through a
Federal audit of response costs, that the costs
for which the Administrator is reimbursed--
(i) are unallowable due to
contractor fraud;
(ii) are unallowable under the
Federal Acquisition Regulation; or
(iii) should be adjusted due to
routine contract and Environmental
Protection Agency response cost audit
procedures,
a potentially responsible party may be reimbursed for
those costs.
(b)(1) In General.--Claims asserted and compensable but
unsatisfied under provisions of section 311 of the Clean Water
Act, which are modified by section 304 of this Act may be
asserted against the Fund under this title; and other claims
resulting from a release or threat of release of a hazardous
substance from a vessel or a facility may be asserted against
the Fund under this title for injury to, or destruction or loss
of, natural resources, including cost for damage assessment:
Provided, however, That any such claim may be asserted only by
the President, as trustee, for natural resources over which the
United States has sovereign rights, or natural resources within
the territory or the fishery conservation zone of the United
States to the extent they are managed or protected by the
United States, or by any State for natural resources within the
boundary of that State belonging to, managed by, controlled by,
or appertaining to the State, or by any Indian tribe or by the
United States acting on behalf of any Indian tribe for natural
resources belonging to, managed by, controlled by, or
appertaining to such tribe, or held in trust for the benefit of
such tribe, or belonging to a member of such tribe if such
resources are subject to a trust restriction on alienation.
(2) Limitation on Payment of Natural Resource Claims.--
(A) General requirements.--No natural resource
claim may be paid from the Fund unless the President
determines that the claimant has exhausted all
administrative and judicial remedies to recover the
amount of such claim from persons who may be liable
under section 107.
(B) Definition.--As used in this paragraph, the
term ``natural resource claim'' means any claim for
injury to, or destruction or loss of, natural
resources. The term does not include any claim for the
costs of natural resource damage assessment.
(c) Uses of the Fund under subsection (a) of this section
include--
(1) The costs of assessing both short-term and
long-term injury to, destruction of, or loss of any
natural resources resulting from a release of a
hazardous substance.
(2) The costs of Federal or State or Indian tribe
efforts in the restoration, rehabilitation, or
replacement or acquiring the equivalent of any natural
resources injured, destroyed, or lost as a result of a
release of a hazardous substance.
(3) Subject to such amounts as are provided in
appropriation Acts, the costs of a program to identify,
investigate, and take enforcement and abatement action
against releases of hazardous substances.
(4) Any costs incurred in accordance with
subsection (m) of this section (relating to ATSDR) and
section 104(i), including the costs of epidemiologic
and laboratory studies, health assessments, preparation
of toxicologic profiles, development and maintenance of
a registry of persons exposed to hazardous substances
to allow long-term health effect studies, and
diagnostic services not otherwise available to
determine whether persons in populations exposed to
hazardous substances in connection with a release or a
suspected release are suffering from long-latency
diseases.
(5) Subject to such amounts as are provided in
appropriation Acts, the costs of providing equipment
and similar overhead, related to the purposes of this
Act and section 311 of the Clean Water Act, and needed
to supplement equipment and services available through
contractors or other non-Federal entities, and of
establishing and maintaining damage assessment
capability, for any Federal agency involved in strike
forces, emergency task forces, or other response teams
under the national contingency plan.
(6) Subject to such amounts as are provided in
appropriation Acts, the costs of a program to protect
the health and safety of employees involved in response
to hazardous substance releases. Such program shall be
developed jointly by the Environmental Protection
Agency, the Occupational Safety and Health
Administration, and the National Institute for
Occupational Safety and Health and shall include, but
not be limited to, measures for identifying and
assessing hazards to which persons engaged in removal,
remedy, or other response to hazardous substances may
be exposed, methods to protect workers from such
hazards, and necessary regulatory and enforcement
measures to assure adequate protection of such
employees.
(7) Evaluation costs under petition provisions of
section 105(d).--Costs incurred by the President in
evaluating facilities pursuant to petitions under
section 105(d) (relating to petitions for assessment of
release).
(8) Contract costs under section 104(a)(1).--The
costs of contracts or arrangements entered into under
section 104(a)(1) to oversee and review the conduct of
remedial investigations and feasibility studies
undertaken by persons other than the President and the
costs of appropriate Federal and State oversight of
remedial activities at National Priorities List sites
resulting from consent orders or settlement agreements.
(9) Acquisition costs under section 104(j).--The
costs incurred by the President in acquiring real
estate or interests in real estate under section 104(j)
(relating to acquisition of property).
(10) Research, development, and demonstration costs
under section 311.--The cost of carrying out section
311 (relating to research, development, and
demonstration), except that the amounts available for
such purposes shall not exceed the amounts specified in
subsection (n) of this section.
(11) Local government reimbursement.--
Reimbursements to local governments under section 123,
except that during the 8-fiscal year period beginning
October 1, 1986, not more than 0.1 percent of the total
amount appropriated from the Fund may be used for such
reimbursements.
(12) Worker training and education grants.--The
costs of grants under section 126(g) of the Superfund
Amendments and Reauthorization Act of 1986 for training
and education of workers to the extent that such costs
do not exceed $10,000,000 \56\ for each of the fiscal
years 1987, 1988, 1989, 1990, 1991, 1992, 1993, and
1994.
---------------------------------------------------------------------------
\56\ Public Law 101-144 (103 Stat. 857) purported to amend section
9611(c)(12) of the Superfund Amendments and Reauthorization Act of 1986
(SARA) by striking ``$10,000,000'' and inserting ``$20,000,000''. The
amendment made by Public Law 101-144 probably should have been made to
section 111(c)(12) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which is designated as section
9611 in title 42, United States Code.
---------------------------------------------------------------------------
(13) Awards under section 109.--The costs of any
awards granted under section 109(d).
(14) Lead poisoning study.--The cost of carrying
out the study under subsection (f) of section 118 of
the Superfund Amendments and Reauthorization Act of
1986 (relating to lead poisoning in children).
(d)(1) No money in the Fund may be used under subsection
(c)(1) and (2) of this section, nor for the payment of any
claim under subsection (b) of this section, where the injury,
destruction, or loss of natural resources and the release of a
hazardous substance from which such damages resulted have
occurred wholly before the enactment of this Act.
(2) No money in the Fund may be used for the payment of
any claim under subsection (b) of this section where such
expenses are associated with injury or loss resulting from
long-term exposure to ambient concentrations of air pollutants
from multiple or diffuse sources.
(e)(1) Claims against or presented to the Fund shall not
be valid or paid in excess of the total money in the Fund at
any one time. Such claims become valid only when additional
money is collected, appropriated, or otherwise added to the
Fund. Should the total claims outstanding at any time exceed
the current balance of the Fund, the President shall pay such
claims, to the extent authorized under this section, in full in
the order in which they were finally determined.
(2) In any fiscal year, 85 percent of the money credited
to the Fund under title II of this Act shall be available only
for the purposes specified in paragraphs (1), (2), and (4) of
subsection (a) of this section. No money in the Fund may be
used for the payment of any claim under subsection (a)(3) or
subsection (b) of this section in any fiscal year for which the
President determines that all of the Fund is needed for
response to threats to public health from releases or
threatened releases of hazardous substances.
(3) No money in the Fund shall be available for remedial
action, other than actions specified in subsection (c) of this
section, with respect to federally owned facilities; except
that money in the Fund shall be available for the provision of
alternative water supplies (including the reimbursement of
costs incurred by a municipality) in any case involving
groundwater contamination outside the boundaries of a federally
owned facility in which the federally owned facility is not the
only potentially responsible party.
(4) Paragraphs (1) and (4) of subsection (a) of this
section shall in the aggregate be subject to such amounts as
are provided in appropriation Acts.
(f) The President is authorized to promulgate regulations
designating one or more Federal officials who may obligate
money in the Fund in accordance with this section or portions
thereof. The President is also authorized to delegate authority
to obligate money in the Fund or to settle claims to officials
of a State or Indian tribe operating under a contract or
cooperative agreement with the Federal Government pursuant to
section 104(d) of this title.
(g) The President shall provide for the promulgation of
rules and regulations with respect to the notice to be provided
to potential injured parties by an owner and operator of any
vessel, or facility from which a hazardous substance has been
released. Such rules and regulations shall consider the scope
and form of the notice which would be appropriate to carry out
the purposes of this title. Upon promulgation of such rules and
regulations, the owner and operator of any vessel or facility
from which a hazardous substance has been released shall
provide notice in accordance with such rules and regulations.
With respect to releases from public vessels, the President
shall provide such notification as is appropriate to potential
injured parties. Until the promulgation of such rules and
regulations, the owner and operator of any vessel or facility
from which a hazardous substance has been released shall
provide reasonable notice to potential injured parties by
publication in local newspapers serving the affected area.
[Subsection (h) repealed.]
(i) Except in a situation requiring action to avoid an
irreversible loss of natural resources or to prevent or reduce
any continuing danger to natural resources or similar need for
emergency action, funds may not be used under this Act for the
restoration, rehabilitation, or replacement or acquisition of
the equivalent of any natural resources until a plan for the
use of such funds for such purposes has been developed and
adopted by affected Federal agencies and the Governor or
Governors of any State having sustained damage to natural
resources within its borders, belonging to, managed by or
appertaining to such State, and by the governing body of any
Indian tribe having sustained damage to natural resources
belonging to, managed by, controlled by, or appertaining to
such tribe, or held in trust for the benefit of such tribe, or
belonging to a member of such tribe if such resources are
subject to a trust restriction on alienation, after adequate
public notice and opportunity for hearing and consideration of
all public comment.
(j) The President shall use the money in the Post-closure
Liability Fund for any of the purposes specified in subsection
(a) of this section with respect to a hazardous waste disposal
facility for which liability has transferred to such fund under
section 107(k) of this Act, and, in addition, for payment of
any claim or appropriate request for costs of response,
damages, or other compensation for injury or loss under section
107 of this Act or any other State or Federal law, resulting
from a release of a hazardous substance from such a facility.
(k) Inspector General.--In each fiscal year, the
Inspector General of each department, agency, or
instrumentality of the United States which is carrying out any
authority of this Act shall conduct an annual audit of all
payments, obligations, reimbursements, or other uses of the
Fund in the prior fiscal year, to assure that the Fund is being
properly administered and that claims are being appropriately
and expeditiously considered. The audit shall include an
examination of a sample of agreements with States (in
accordance with the provisions of the Single Audit Act)
carrying out response actions under this title and an
examination of remedial investigations and feasibility studies
prepared for remedial actions. The Inspector General shall
submit to the Congress an annual report regarding the audit
report required under this subsection. The report shall contain
such recommendations as the Inspector General deems
appropriate. Each department, agency, or instrumentality of the
United States shall cooperate with its inspector general in
carrying out this subsection.
(l) To the extent that the provisions of this Act permit,
a foreign claimant may assert a claim to the same extent that a
United States claimant may assert a claim if--
(1) the release of a hazardous substance occurred
(A) in the navigable waters or (B) in or on the
territorial sea or adjacent shoreline of a foreign
country of which the claimant is a resident;
(2) the claimant is not otherwise compensated for
his loss;
(3) the hazardous substance was released from a
facility or from a vessel located adjacent to or within
the navigable waters or was discharged in connection
with activities conducted under the Outer Continental
Shelf Lands Act, as amended (43 U.S.C. 1331 et seq.) or
the Deepwater Port Act of 1974, as amended (33 U.S.C.
1501 et seq.); and
(4) recovery is authorized by a treaty or an
executive agreement between the United States and
foreign country involved, or if the Secretary of State,
in consultation with the Attorney General and other
appropriate officials, certifies that such country
provides a comparable remedy for United States
claimants.
[(m) Agency for Toxic Substances and Disease Registry.--
There shall be directly available to the Agency for Toxic
Substances and Disease Registry to be used for the purpose of
carrying out activities described in subsection (c)(4) and
section 104(i) not less than $50,000,000 per fiscal year for
each of fiscal years 1987 and 1988, not less than $55,000,000
for fiscal year 1989, and not less than $60,000,000 per fiscal
year for each of fiscal years 1990, 1991, 1992, 1993, and 1994.
Any funds so made available which are not obligated by the end
of the fiscal year in which made available shall be returned to
the Fund.]
(m) Health Authorities.--
(1) In general.--There are authorized to be
appropriated from the Fund to the Secretary of Health
and Human Services to be used for the purposes of
carrying out the activities described in subsection
(c)(4) and the activities described in section 104(i),
$50,000,000 for each of fiscal years 1999 through 2003.
(2) Return of unobligated funds.--Funds
appropriated under this subsection for a fiscal year,
but not obligated by the end of the fiscal year, shall
be returned to the Fund.
[(n) Limitations on Research, Development, and
Demonstration Program.--
[(1) Section 311(b).--For each of the fiscal years
1987, 1988, 1989, 1990, 1991, 1992, 1993, and 1994, not
more than $20,000,000 of the amounts available in the
Fund may be used for the purposes of carrying out the
applied research, development, and demonstration
program for alternative or innovative technologies and
training program authorized under section 311(b)
(relating to research, development, and demonstration)
other than basic research. Such amounts shall remain
available until expended.
[(2) Section 311(a).--From the amounts available in
the Fund, not more than the following amounts may be
used for the purposes of section 311(a) (relating to
hazardous substance research, demonstration, and
training activities):
[(A) For the fiscal year 1987, $3,000,000.
[(B) For the fiscal year 1988, $10,000,000.
[(C) For the fiscal year 1989, $20,000,000.
[(D) For the fiscal year 1990, $30,000,000.
[(E) For each of the fiscal years 1991,
1992, 1993, and 1994, $35,000,000.
[No more than 10 percent of such amounts shall be used
for training under section 311(a) in any fiscal year.
[(3) Section 311(d).--For each of the fiscal years
1987, 1988, 1989, 1990, 1991, 1992, 1993, and 1994, not
more than $5,000,000 of the amounts available in the
Fund may be used for the purposes of section 311(d)
(relating to university hazardous substance research
centers).]
(n) Limitations on Research, Development, and Demonstration
Programs.--
(1) Alternative or innovative technologies
research, development, and demonstration programs.--
(A) Limitation.--For each of fiscal years
1999 through 2003, not more than $30,000,000 of
the amounts available in the Fund may be used
for the purposes of carrying out the applied
research, development, and demonstration
program for alternative or innovative
technologies and training program authorized
under section 311(b) other than basic research.
(B) Continuing availability.--Amounts under
subparagraph (A) shall remain available until
expended.
(2) Hazardous substance research, demonstration,
and training.--
(A) Limitation.--From the amounts available
in the Fund, not more than the following
amounts may be used for the purposes of section
311(a):
(i) For fiscal year 1999,
$37,000,000.
(ii) For fiscal year 2000,
$39,000,000.
(iii) For fiscal year 2001,
$41,000,000.
(iv) For each of fiscal years 2002
and 2003, $43,000,000.
(B) Further limitation.--No more than 15
percent of such amounts shall be used for
training under section 311(a) for any fiscal
year.
(3) University hazardous substance research
centers.--For each of fiscal years 1999 through 2003,
not more than $5,000,000 of the amounts available in
the Fund may be used for the purposes of section
311(d).
(o) Notification Procedures for Limitations on Certain
Payments.--Not later than 90 days after the enactment of this
subsection, the President shall develop and implement
procedures to adequately notify, as soon as practicable after a
site is included on the National Priorities List, concerned
local and State officials and other concerned persons of the
limitations, set forth in subsection (a)(2) of this section, on
the payment of claims for necessary response costs incurred
with respect to such site.
(p) General Revenue Share of Superfund.--
[(1) In general.--The following sums are authorized
to be appropriated, out of any money in the Treasury
not otherwise appropriated, to the Hazardous Substance
Superfund:
[(A) For fiscal year 1987, $212,500,000.
[(B) For fiscal year 1988, $212,500,000.
[(C) For fiscal year 1989, $212,500,000.
[(D) For fiscal year 1990, $212,500,000.
[(E) For fiscal year 1991, $212,500,000.
[(F) For fiscal year 1992, $212,500,000.
[(G) For fiscal year 1993, $212,500,000.
[(H) For fiscal year 1994, $212,500,000.
[In addition there is authorized to be appropriated to
the Hazardous Substance Superfund for each fiscal year
an amount equal to so much of the aggregate amount
authorized to be appropriated under this subsection
(and paragraph (2) of section 221(b) \57\ of the
Hazardous Substance Response Revenue Act of 1980) as
has not been appropriated before the beginning of the
fiscal year involved.]
---------------------------------------------------------------------------
\57\ [Section 221(b) was repealed by section 517(c)(1) of Public
Law 99-499].
---------------------------------------------------------------------------
(1) Authorization of appropriations.--
(A) In general.--There are authorized to be
appropriated, out of any money in the Treasury
not otherwise appropriated, to the Hazardous
Substance Superfund--
(i) for fiscal year 1999,
$250,000,000;
(ii) for fiscal year 2000,
$250,000,000;
(iii) for fiscal year 2001,
$250,000,000;
(iv) for fiscal year 2002,
$250,000,000; and
(v) for fiscal year 2003,
$250,000,000.
(B) Additional amounts.--There is
authorized to be appropriated to the Hazardous
Substance Superfund for each such fiscal year
an amount, in addition to the amount authorized
by subparagraph (A), equal to so much of the
aggregate amount authorized to be appropriated
under this subsection and section 9507(b) of
the Internal Revenue Code of 1986 as has not
been appropriated before the beginning of the
fiscal year.
(2) Computation.--The amounts authorized to be
appropriated under paragraph (1) of this subsection in
a given fiscal year shall be available only to the
extent that such amount exceeds the amount determined
by the Secretary under section 9507(b)(2) of the
Internal Revenue Code of 1986 for the prior fiscal
year.
(q) Brownfield Grant Program.--For each of fiscal years
1999 through 2003, not more than $75,000,000 of the amounts
available in the Fund may be used to carry out section 127.
(r) Qualifying State Voluntary Response Program.--For each
of fiscal years 1999 through 2003, not more than $25,000,000 of
the amounts available in the Fund may be used for assistance to
States to maintain, establish, and administer qualifying State
voluntary response programs, during the first 5 full fiscal
years following the date of enactment of this subparagraph,
distributed among each of the States that notifies the
Administrator of the State's intent to establish a qualifying
State voluntary response program and each of the States with a
qualifying State voluntary response program. For each fiscal
year there shall be available to each qualifying State
voluntary response program a grant in the amount of at least
$250,000.
(s) Community Action Groups.--For the period commencing
January 1, 1998, and ending September 30, 2003, not more than
$15,000,000 of the amounts available in the Fund may be used to
make grants under section 117(i).
(t) Recoveries.--Effective beginning January 1, 1997, any
response cost recoveries collected by the United States under
this Act shall be credited as offsetting collections to the
Superfund appropriations account.
[42 U.S.C. 9611]
claims procedure
Sec. 112. (a) Claims Against the Fund for Response
Costs.--No claim may be asserted against the Fund pursuant to
section 111(a) unless such claim is presented in the first
instance to the owner, operator, or guarantor of the vessel or
facility from which a hazardous substance has been released, if
known to the claimant, and to any other person known to the
claimant who may be liable under section 107. In any case where
the claim has not been satisfied within 60 days of presentation
in accordance with this subsection, the claimant may present
the claim to the Fund for payment. No claim against the Fund
may be approved or certified during the pendency of an action
by the claimant in court to recover costs which are the subject
of the claim.
(b)(1) Prescribing Forms and Procedures.--The President
shall prescribe appropriate forms and procedures for claims
filed hereunder, which shall include a provision requiring the
claimant to make a sworn verification of the claim to the best
of his knowledge. Any person who knowingly gives or causes to
be given any false information as a part of any such claim
shall, upon conviction, be fined in accordance with the
applicable provisions of title 18 of the United States Code or
imprisoned for not more than 3 years (or not more than 5 years
in the case of a second or subsequent conviction), or both.
(2) Payment or Request for Hearing.--The President may,
if satisfied that the information developed during the
processing of the claim warrants it, make and pay an award of
the claim, except that no claim may be awarded to the extent
that a judicial judgment has been made on the costs that are
the subject of the claim. If the President declines to pay all
or part of the claim, the claimant may, within 30 days after
receiving notice of the President's decision, request an
administrative hearing.
(3) Burden of Proof.--In any proceeding under this
subsection, the claimant shall bear the burden of proving his
claim.
(4) Decisions.--All administrative decisions made
hereunder shall be in writing, with notification to all
appropriate parties, and shall be rendered within 90 days of
submission of a claim to an administrative law judge, unless
all the parties to the claim agree in writing to an extension
or unless the President, in his discretion, extends the time
limit for a period not to exceed sixty days.
(5) Finality and Appeal.--All administrative decisions
hereunder shall be final, and any party to the proceeding may
appeal a decision within 30 days of notification of the award
or decision. Any such appeal shall be made to the Federal
district court for the district where the release or threat of
release took place. In any such appeal, the decision shall be
considered binding and conclusive, and shall not be overturned
except for arbitrary or capricious abuse of discretion.
(6) Payment.--Within 20 days after the expiration of the
appeal period for any administrative decision concerning an
award, or within 20 days after the final judicial determination
of any appeal taken pursuant to this subsection, the President
shall pay any such award from the Fund. The President shall
determine the method, terms, and time of payment.
(c)(1) Payment of any claim by the Fund under this
section shall be subject to the United States Government
acquiring by subrogation the rights of the claimant to recover
those costs of removal or damages for which it has compensated
the claimant from the person responsible or liable for such
release.
(2) Any person, including the Fund, who pays compensation
pursuant to this Act to any claimant for damages or costs
resulting from a release of a hazardous substance shall be
subrogated to all rights, claims, and causes of action for such
damages and costs of removal that the claimant has under this
Act or any other law.
(3) Upon request of the President, the Attorney General
shall commence an action on behalf of the Fund to recover any
compensation paid by the Fund to any claimant pursuant to this
title, and, without regard to any limitation of liability, all
interest, administrative and adjudicative costs, and attorney's
fees incurred by the Fund by reason of the claim. Such an
action may be commenced against any owner, operator, or
guarantor, or against any other person who is liable, pursuant
to any law, to the compensated claimant or to the Fund, for the
damages or costs for which compensation was paid.
(d) Statute of Limitations.--
(1) Claims for recovery of costs.--No claim may be
presented under this section for recovery of the costs
referred to in section 107(a) after the date 6 years
after the date of completion of all response action.
(2) Claims for recovery of damages.--No claim may
be presented under this section for recovery of the
damages referred to in section 107(a) unless the claim
is presented within 3 years after the later of the
following:
(A) The date of the discovery of the loss
and its connection with the release in
question.
(B) The date on which final regulations are
promulgated under section 301(c).
(3) Minors and incompetents.--The time limitations
contained herein shall not begin to run--
(A) against a minor until the earlier of
the date when such minor reaches 18 years of
age or the date on which a legal representative
is duly appointed for the minor, or
(B) against an incompetent person until the
earlier of the date on which such person's
incompetency ends or the date on which a legal
representative is duly appointed for such
incompetent person.
(e) Regardless of any State statutory or common law to
the contrary, no person who asserts a claim against the Fund
pursuant to this title shall be deemed or held to have waived
any other claim not covered or assertable against the Fund
under this title arising from the same incident, transaction,
or set of circumstances, nor to have split a cause of action.
Further, no person asserting a claim against the Fund pursuant
to this title shall as a result of any determination of a
question of fact or law made in connection with that claim be
deemed or held to be collaterally estopped from raising such
question in connection with any other claim not covered or
assertable against the Fund under this title arising from the
same incident, transaction, or set of circumstances.
(f) Double Recovery Prohibited.--Where the President has
paid out of the Fund for any response costs or any costs
specified under section 111(c) (1) or (2), no other claim may
be paid out of the Fund for the same costs.
(g) Contribution From the Fund.--
(1) Completion of obligations.--A person that is
undertaking a response action pursuant to an
administrative order issued under section 106 or has
entered into a settlement decree with the United States
or a State as of the date of enactment of this
subsection shall complete the person's obligations
under the order or settlement decree.
(2) Contribution.--A person described in paragraph
(1) shall receive contribution from the Fund for any
portion of the costs (excluding attorneys' fees)
incurred for the performance of the response action
after the date of enactment of this subsection if the
person is not liable for such costs by reason of a
liability exemption under section 107.
(3) Application for contribution.--
(A) In general.--Contribution under this
section shall be made upon receipt by the
Administrator of an application requesting
contribution.
(B) Periodic applications.--Beginning with
the 7th month after the date of enactment of
this subsection, 1 application for each
facility shall be submitted every 6 months for
all persons with contribution rights (as
determined under subparagraph (2)).
(4) Regulations.--Contribution shall be made in
accordance with such regulations as the Administrator
shall issue within 180 days after the date of enactment
of this section.
(5) Documentation.--The regulations under paragraph
(4) shall, at a minimum, require that an application
for contribution contain such documentation of costs
and expenditures as the Administrator considers
necessary to ensure compliance with this subsection.
(6) Expedition.--The Administrator shall,
consistent with section 137(p), develop and implement
such procedures as may be necessary to provide
contribution to such persons in an expeditious manner,
but in no case shall a contribution be made later than
1 year after submission of an application under this
subsection.
(7) Consistency with national contingency plan.--No
contribution shall be made under this subsection unless
the Administrator determines that such costs are
consistent with the National Contingency Plan.
[42 U.S.C. 9612]
litigation, jurisdiction and venue
Sec. 113. (a) Review of any regulation promulgated under
this Act may be had upon application by any interested person
only in the Circuit Court of Appeals of the United States for
the District of Columbia. Any such application shall be made
within ninety days from the date of promulgation of such
regulations. Any matter with respect to which review could have
been obtained under this subsection shall not be subject to
judicial review in any civil or criminal proceeding for
enforcement or to obtain damages or recovery of response costs.
(b) Except as provided in subsections (a) and (h) of this
section, the United States district courts shall have exclusive
original jurisdiction over all controversies arising under this
Act, without regard to the citizenship of the parties or the
amount in controversy. Venue shall lie in any district in which
the release or damages occurred, or in which the defendant
resides, may be found, or has his principal office. For the
purposes of this section, the Fund shall reside in the District
of Columbia.
(c) The provisions of subsections (a) and (b) of this
section shall not apply to any controversy or other matter
resulting from the assessment of collection of any tax, as
provided by title II of this Act, or to the review of any
regulation promulgated under the Internal Revenue Code of 1954.
(d) No provision of this Act shall be deemed or held to
moot any litigation concerning any release of any hazardous
substance, or any damages associated therewith, commenced prior
to enactment of this Act.
(e) Nationwide Service of Process.--In any action by the
United States under this Act, process may be served in any
district where the defendant is found, resides, transacts
business, or has appointed an agent for the service of process.
(f) Contribution.--
(1) Contribution.--Any person may seek contribution
from any other person who is liable or potentially
liable under section 107(a), during or following any
civil action under section 106 or under section 107(a).
Such claims shall be brought in accordance with this
section and the Federal Rules of Civil Procedure, and
shall be governed by Federal law. In resolving
contribution claims, the court may allocate response
costs and natural resource damages among liable parties
using such equitable factors as the court determines
are appropriate. Nothing in this subsection shall
diminish the right of any person to bring an action for
contribution in the absence of a civil action under
section 106 or section 107.
(2) Settlement.--A person who has resolved its
liability to the United States or a State in an
administrative or judicially approved settlement shall
not be liable for claims for contribution or cost
recovery regarding matters addressed in the settlement.
Such settlement does not discharge any of the other
potentially liable persons unless its terms so provide,
but it reduces the potential liability of the others by
the amount of the settlement.
(3) Persons not party to settlement.--(A) If the
United States or a State has obtained less than
complete relief from a person who has resolved its
liability to the United States or the State in an
administrative or judicially approved settlement, the
United States or the State may bring an action against
any person who has not so resolved its liability.
(B) A person who has resolved its liability to the
United States or a State for some or all of a response
action or for some or all of the costs of such action
in an administrative or judicially approved settlement
may seek contribution from any person who is not party
to a settlement referred to in paragraph (2).
(C) In any action under this paragraph, the rights
of any person who has resolved its liability to the
United States or a State shall be subordinate to the
rights of the United States or the State. Any
contribution action brought under this paragraph shall
be governed by Federal law.
(g) Period in Which Action May Be Brought.--
(1) Actions for natural resource damages.--Except
as provided in paragraphs (3) and (4), no action may be
commenced for damages (as defined in section 101(6))
under this Act, unless that action is commenced within
3 years after the later of the following:
(A) The date of the discovery of the loss
and its connection with the release in
question.
(B) The date on which regulations are
promulgated under section 301(c).
With respect to any facility listed on the National
Priorities List (NPL), any Federal facility identified
under section 120 (relating to Federal facilities), or
any vessel or facility at which a remedial action under
this Act is otherwise scheduled, an action for damages
under this Act must be commenced within 3 years after
the completion of the remedial action (excluding
operation and maintenance activities) in lieu of the
dates referred to in subparagraph (A) or (B). In no
event may an action for damages under this Act with
respect to such a vessel or facility be commenced (i)
prior to 60 days after the Federal or State natural
resource trustee provides to the President and the
potentially responsible party a notice of intent to
file suit, or (ii) before selection of the remedial
action if the President is diligently proceeding with a
remedial investigation and feasibility study under
section 104(b) or section 120 (relating to Federal
facilities). The limitation in the preceding sentence
on commencing an action before giving notice or before
selection of the remedial action does not apply to
actions filed on or before the enactment of the
Superfund Amendments and Reauthorization Act of 1986.
(2) Actions for recovery of costs.--An initial
action for recovery of the costs referred to in section
107 must be commenced--
(A) for a removal action, within 3 years
after completion of the removal action, except
that such cost recovery action must be brought
within 6 years after a determination to grant a
waiver under section 104(c)(1)(C) for continued
response action; and
(B) for a remedial action, within 6 years
after initiation of physical on-site
construction of the remedial action, except
that, if the remedial action is initiated
within 3 years after the completion of the
removal action, costs incurred in the removal
action may be recovered in the cost recovery
action brought under this subparagraph.
In any such action described in this subsection, the
court shall enter a declaratory judgment on liability
for response costs or damages that will be binding on
any subsequent action or actions to recover further
response costs or damages. A subsequent action or
actions under section 107 for further response costs at
the vessel or facility may be maintained at any time
during the response action, but must be commenced no
later than 3 years after the date of completion of all
response action. Except as otherwise provided in this
paragraph, an action may be commenced under section 107
for recovery of costs at any time after such costs have
been incurred.
(3) Contribution.--No action for contribution for
any response costs or damages may be commenced more
than 3 years after--
(A) the date of judgment in any action
under this Act for recovery of such costs or
damages, or
(B) the date of an administrative order
under section 122(g) (relating to de minimis
settlements) or 122(h) (relating to cost
recovery settlements) or entry of a judicially
approved settlement with respect to such costs
or damages.
(4) Subrogation.--No action based on rights
subrogated pursuant to this section by reason of
payment of a claim may be commenced under this title
more than 3 years after the date of payment of such
claim.
(5) Actions to recover indemnification payments.--
Notwithstanding any other provision of this subsection,
where a payment pursuant to an indemnification
agreement with a response action contractor is made
under section 119, an action under section 107 for
recovery of such indemnification payment from a
potentially responsible party may be brought at any
time before the expiration of 3 years from the date on
which such payment is made.
(6) Minors and incompetents.--The time limitations
contained herein shall not begin to run--
(A) against a minor until the earlier of
the date when such minor reaches 18 years of
age or the date on which a legal representative
is duly appointed for such minor, or
(B) against an incompetent person until the
earlier of the date on which such incompetent's
incompetency ends or the date on which a legal
representative is duly appointed for such
incompetent.
(h) Timing of Review.--No Federal court shall have
jurisdiction under Federal law other than under section 1332 of
title 28 of the United States Code (relating to diversity of
citizenship jurisdiction) or under State law which is
applicable or relevant and appropriate under section 121
(relating to cleanup standards) to review any challenges to
removal or remedial action selected under section 104, or to
review any order issued under section 106(a), in any action
except one of the following:
(1) An action under section 107 to recover response
costs or damages or for contribution.
(2) An action to enforce an order issued under
section 106(a) or to recover a penalty for violation of
such order.
(3) An action for reimbursement under section
106(b)(2).
(4) An action under section 310 (relating to
citizens suits) alleging that the removal or remedial
action taken under section 104 or secured under section
106 was in violation of any requirement of this Act.
Such an action may not be brought with regard to a
removal where a remedial action is to be undertaken at
the site.
(5) An action under section 106 in which the United
States has moved to compel a remedial action.
(i) Intervention.--In any action commenced under this Act
or under the Solid Waste Disposal Act in a court of the United
States, any person may intervene as a matter of right when such
person claims an interest relating to the subject of the action
and is so situated that the disposition of the action may, as a
practical matter, impair or impede the person's ability to
protect that interest, unless the President or the State shows
that the person's interest is adequately represented by
existing parties.
(j) Judicial Review.--
(1) Limitation.--In any judicial action under this
Act, judicial review of any issues concerning the
adequacy of any response action taken or ordered by the
President shall be limited to the administrative
record. Otherwise applicable principles of
administrative law shall govern whether any
supplemental materials may be considered by the court.
(2) Standard.--In considering objections raised in
any judicial action under this Act, the court shall
uphold the President's decision in selecting the
response action unless the objecting party can
demonstrate, on the administrative record, that the
decision was arbitrary and capricious or otherwise not
in accordance with law.
(3) Remedy.--If the court finds that the selection
of the response action was arbitrary and capricious or
otherwise not in accordance with law, the court shall
award (A) only the response costs or damages that are
not inconsistent with the national contingency plan,
and (B) such other relief as is consistent with the
National Contingency Plan.
(4) Procedural errors.--In reviewing alleged
procedural errors, the court may disallow costs or
damages only if the errors were so serious and related
to matters of such central relevance to the action that
the action would have been significantly changed had
such errors not been made.
(k) Administrative Record and Participation Procedures.--
(1) Administrative record.--The President shall
establish an administrative record upon which the
President shall base the selection of a response
action. The administrative record shall be available to
the public at or near the facility at issue. The
President also may place duplicates of the
administrative record at any other location.
(2) Participation procedures.--
(A) Removal action.--The President shall
promulgate regulations in accordance with
chapter 5 of title 5 of the United States Code
establishing procedures for the appropriate
participation of interested persons in the
development of the administrative record on
which the President will base the selection of
removal actions and on which judicial review of
removal actions will be based.
(B) Remedial action.--The President shall
provide for the participation of interested
persons, including potentially responsible
parties, in the development of the
administrative record on which the President
will base the selection of remedial actions and
on which judicial review of remedial actions
will be based. The procedures developed under
this subparagraph shall include, at a minimum,
each of the following:
(i) Notice to potentially affected
persons and the public, which shall be
accompanied by a brief analysis of the
plan and alternative plans that were
considered.
(ii) A reasonable opportunity to
comment and provide information
regarding the plan.
(iii) An opportunity for a public
meeting in the affected area, in
accordance with section [117(a)(2)]
117(b)(2) (relating to public
participation).
(iv) A response to each of the
significant comments, criticisms, and
new data submitted in written or oral
presentations.
(v) A statement of the basis and
purpose of the selected action.
For purposes of this subparagraph, the
administrative record shall include all items
developed and received under this subparagraph
and all items described in the second sentence
of section [117(d)] 117(e). The President shall
promulgate regulations in accordance with
chapter 5 of title 5 of the United States Code
to carry out the requirements of this
subparagraph.
(C) Interim record.--Until such regulations
under subparagraphs (A) and (B) are
promulgated, the administrative record shall
consist of all items developed and received
pursuant to current procedures for selection of
the response action, including procedures for
the participation of interested parties and the
public. The development of an administrative
record and the selection of response action
under this Act shall not include an
adjudicatory hearing.
(D) Potentially responsible parties.--The
President shall make reasonable efforts to
identify and notify potentially responsible
parties as early as possible before selection
of a response action. Nothing in this paragraph
shall be construed to be a defense to
liability.
(l) Notice of Actions.--Whenever any action is brought
under this Act in a court of the United States by a plaintiff
other than the United States, the plaintiff shall provide a
copy of the complaint to the Attorney General of the United
States and to the Administrator of the Environmental Protection
Agency.
[42 U.S.C. 9613]
relationship to other law
Sec. 114. (a) Nothing in this Act shall be construed or
interpreted as preempting any State from imposing any
additional liability or requirements with respect to the
release of hazardous substances within such State.
(b) Any person who receives compensation for removal costs
or damages or claims pursuant to this Act shall be precluded
from recovering compensation for the same [removal] response
costs or damages or claims pursuant to any other State or
Federal law. Any person who receives compensation for [removal]
response costs or damages or claims pursuant to any other
Federal or State law shall be precluded from receiving
compensation for the same [removal] response costs or damages
or claims as provided in this Act.
(c) Recycled Oil.--
(1) [Service station dealer]Service station or
automobile dealers, etc.--No person (including the
United States or any State) may recover, under the
authority of subsection (a)(3) or (a)(4) of section
107, from a [service station dealer] service station or
automobile dealer for any response costs or damages
resulting from a release or threatened release of
recycled oil, or use the authority of section 106
against a [service station dealer] service station or
automobile dealer other than a person described in
subsection (a)(1) or (a)(2) of section 107, if such
recycled oil--
(A) is not mixed with any other hazardous
substance, and
(B) is stored, treated, transported, or
otherwise managed in compliance with
regulations or standards promulgated pursuant
to section 3014 of the Solid Waste Disposal Act
and other applicable authorities.
Nothing in this paragraph shall affect or modify in any
way the obligations or liability of any person under
any other provision of State or Federal law, including
common law, for damages, injury, or loss resulting from
a release or threatened release of any hazardous
substance or for removal or remedial action or the
costs of removal or remedial action.
(2) Presumption.--Solely for the purposes of this
subsection, a service station dealer may presume that a
small quantity of used oil is not mixed with other
hazardous substances if it--
(A) has been removed from the engine of a
light duty motor vehicle or household
appliances by the owner of such vehicle or
appliances, and
(B) is presented, by such owner, to the
dealer for collection, accumulation, and
delivery to an oil recycling facility.
(3) Definition.--For purposes of this subsection,
the terms ``used oil'' and ``recycled oil'' have the
same meanings as set forth in sections 1004(36) and
1004(37) of the Solid Waste Disposal Act and
regulations promulgated pursuant to that Act.
(4) Effective date.--The effective date of
paragraphs (1) and (2) of this subsection shall be the
effective date of regulations or standards promulgated
under section 3014 of the Solid Waste Disposal Act that
include, among other provisions, a requirement to
conduct corrective action to respond to any releases of
recycled oil under subtitle C or subtitle I of such
Act.
(d) Except as provided in this title, no owner or
operator of a vessel or facility who establishes and maintains
evidence of financial responsibility in accordance with this
title shall be required under any State or local law, rule, or
regulation to establish or maintain any other evidence of
financial responsibility in connection with liability for the
release of a hazardous substance from such vessel or facility.
Evidence of compliance with the financial responsibility
requirements of this title shall be accepted by a State in lieu
of any other requirement of financial responsibility imposed by
such State in connection with liability for the release of a
hazardous substance from such vessel or facility.
[42 U.S.C. 9614]
authority to delegate, issue regulations
Sec. 115. The President is authorized to delegate and
assign any duties or powers imposed upon or assigned to him and
to promulgate any regulations necessary to carry out the
provisions of this title.
[42 U.S.C. 9615]
SEC. 116. SCHEDULES.
(a) Assessment and Listing of Facilities.--It shall be a
goal of this Act that, to the maximum extent practicable--
(1) not later than January 1, 1988, the President
shall complete preliminary assessments of all
facilities that are contained (as of the date of
enactment of the Superfund Amendments and
Reauthorization Act of 1986) on the Comprehensive
Environmental Response, Compensation, and Liability
Information System (CERCLIS) including in each
assessment a statement as to whether a site inspection
is necessary and by whom it should be carried out; and
(2) not later than January 1, 1989, the President
shall assure the completion of site inspections at all
facilities for which the President has stated a site
inspection is necessary pursuant to paragraph (1).
(b) Evaluation.--Within 4 years after enactment of the
Superfund Amendments and Reauthorization Act of 1986, each
facility listed (as of the date of such enactment) in the
CERCLIS shall be evaluated if the President determines that
such evaluation is warranted on the basis of a site inspection
or preliminary assessment. The evaluation shall be in
accordance with the criteria established in section 105 under
the National Contingency Plan for determining priorities among
release for inclusion on the National Priorities List. In the
case of a facility listed in the CERCLIS after the enactment of
the Superfund Amendments and Reauthorization Act of 1986, the
facility shall be evaluated within 4 years after the date of
such listing if the President determines that such evaluation
is warranted on the basis of a site inspection or preliminary
assessment.
(c) Explanations.--If any of the goals established by
subsection (a) or (b) are not achieved, the President shall
publish an explanation of why such action could not be
completed by the specified date.
(d) Commencement of RI/FS.--The President shall assure
that remedial investigations and feasibility studies (RI/FS)
are commenced for facilities listed on the National Priorities
List, in addition to those commenced prior to the date of
enactment of the Superfund Amendments and Reauthorization Act
of 1986, in accordance with the following schedule:
(1) not fewer than 275 by the date 36 months after
the date of enactment of the Superfund Amendments and
Reauthorization Act of 1986, and
(2) if the requirement of paragraph (1) is not met,
not fewer than an additional 175 by the date 4 years
after such date of enactment, an additional 200 by the
date 5 years after such date of enactment, and a total
of 650 by the date 5 years after such date of
enactment.
(e) Commencement of Remedial Action.--The President shall
assure that substantial and continuous physical on-site
remedial action commences at facilities on the National
Priorities List, in addition to those facilities on which
remedial action has commenced prior to the date of enactment of
the Superfund Amendments and Reauthorization Act of 1986, at a
rate not fewer than:
(1) 175 facilities during the first 36-month period
after enactment of this subsection; and
(2) 200 additional facilities during the following
24 months after such 36-month period.
[42 U.S.C. 9616]
SEC. 117. PUBLIC PARTICIPATION.
(a) Definitions.--In this section:
(1) Affected community.--The term ``affected
community'' means a group of 2 or more individuals who
may be affected by the release or threatened release of
a hazardous substance, pollutant, or contaminant from a
covered facility.
(2) Covered facility.--The term ``covered
facility'' means a facility--
(A) that has been listed or proposed for
listing on the National Priorities List; or
(B) at which the Administrator is
undertaking a removal action that it is
anticipated will exceed--
(i) in duration, 1 year; or
(ii) in cost, the funding limit
under section 104(c)(1).
[(a)] (b) Proposed Plan.--Before adoption of any plan for
remedial action to be undertaken by the President, by a State,
or by any other person, under section 104, 106, 120, or 122,
the President or State, as appropriate, shall take both of the
following actions:
(1) Publish a notice and brief analysis of the
proposed plan and make such plan available to the
public.
(2) Provide a reasonable opportunity for submission
of written and oral comments, adequate notice, and an
opportunity for a public meeting at or near the
facility at issue regarding the proposed plan and
regarding any proposed findings under section 121(d)(4)
(relating to cleanup standards). The President or the
State shall keep a transcript of the meeting and make
such transcript available to the public.
The notice and analysis published under paragraph (1) shall
include sufficient information as may be necessary to provide a
reasonable explanation of the proposed plan and alternative
proposals considered.
[(b)] (c) Final Plan.--Notice of the final remedial
action plan adopted shall be published and the plan shall be
made available to the public before commencement of any
remedial action. Such final plan shall be accompanied by a
discussion of any significant changes (and the reasons for such
changes) in the proposed plan and a response to each of the
significant comments, criticisms, and new data submitted in
written or oral presentations under subsection (a).
[(c)] (d) Explanation of Differences.--After adoption of
a final remedial action plan--
(1) if any remedial action is taken,
(2) if any enforcement action under section 106 is
taken, or
(3) if any settlement or consent decree under
section 106 or section 122 is entered into,
and if such action, settlement, or decree differs in any
significant respects from the final plan, the President or the
State shall publish an explanation of the significant
differences and the reasons such changes were made.
[(d)] (e) Publication.--For the purposes of this section,
publication shall include, at a minimum, publication in a
[major] local newspaper of general circulation. In addition,
each item developed, received, published, or made available to
the public under this section shall be available for public
inspection and copying at or near the facility at issue.
[(e) (f) Grants for Technical Assistance.--
[(1) Authority.--Subject to such amounts as are
provided in appropriations Acts and in accordance with
rules promulgated by the President, the President may
make grants available to any group of individuals which
may be affected by a release or threatened release at
any facility which is listed on the National Priorities
List under the National Contingency Plan. Such grants
may be used to obtain technical assistance in
interpreting information with regard to the nature of
the hazard, remedial investigation and feasibility
study, record of decision, remedial design, selection
and construction of remedial action, operation and
maintenance, or removal action at such facility.
[(2) Amount.--The amount of any grant under this
subsection may not exceed $50,000 for a single grant
recipient. The President may waive the $50,000
limitation in any case where such waiver is necessary
to carry out the purposes of this subsection. Each
grant recipient shall be required, as a condition of
the grant, to contribute at least 20 percent of the
total of costs of the technical assistance for which
such grant is made. The President may waive the 20
percent contribution requirement if the grant recipient
demonstrates financial need and such waiver is
necessary to facilitate public participation in the
selection of remedial action at the facility. Not more
than one grant may be made under this subsection with
respect to a single facility, but the grant may be
renewed to facilitate public participation at all
stages of remedial action.]
(f) Availability of Records.--
(1) In general.--Except as provided in paragraph
(2), throughout all phases of a response action at a
facility and without the need to file a request under
section 552 of title 5, United States Code, the
President shall make available to the affected
community (including the recipient of a technical
assistance grant, if one has been awarded under
subsection (i)) or a local community advisory group (if
one has been established under subsection (h)), all
records in the possession or control of the United
States relating to a release or threatened release of a
hazardous substance, pollutant, or contaminant at the
facility and that do not relate to liability, for
inspection and, subject to reasonable fees, for
copying.
(2) Exempt records.--Paragraph (1) shall not apply
to a record that is exempt from disclosure under
section 552 of title 5, United States Code (including
any information protected from disclosure by privilege
or as confidential business information), or to any
record that is exchanged between parties to a dispute
under this Act for the purposes of settling the
dispute.
(g) Improvement of Public Participation in Decisionmaking
Process.--
(1) Views and preferences.--
(A) Solicitation.--To the extent
practicable, in addition to the solicitation of
public comments on a proposed remedial action
plan under subsection (a)(2), the
Administrator, during the response action
process (including the responses under
subsection (h)(4)(A)), shall--
(i) disseminate information to the
local community;
(ii) solicit information from the
local community;
(iii) consider the views of the
local community; and
(iv) include, in any administrative
record established under section
113(k), the views of the local
community and the response of the
Administrator to any significant
comments, criticisms, or new data
submitted in a written or oral
presentation.
(B) Procedure.--To solicit the views and
concerns of the local community, the
Administrator may conduct, as appropriate--
(i) face-to-face local community
surveys for purposes including the
identification of the location of
private drinking water wells, historic
and current or potential use of water,
and other environmental resources in
the local community;
(ii) public meetings; and
(iii) other appropriate
participatory activities.
(C) Public meetings.--The Administrator
shall give particular consideration to
providing the opportunity for public meetings
in advance of significant decision points in
the response action process.
(D) Consultation.--In determining which of
the procedures set forth in subparagraph (B)
may be appropriate, the Administrator shall
consult with a local community advisory group,
if one has been established under subsection
(h), and members of the affected community.
(E) Notification.--The Administrator shall
notify the local community, affected Indian
Tribes, and local government concerning--
(i) the schedule for commencement
of construction activities at the
covered facility and the location and
availability of construction plans;
(ii) the results of the any review
under section 121(c) and any
modifications to the covered facility
made as a result of the review; and
(iii) the execution of and any
revision to institutional controls
being used as part of a remedial
action.
(2) Meetings between lead agency and potentially
responsible parties.--The Administrator, on a regular
basis, shall inform local government officials, Indian
Tribes, a local community advisory group (if any) and,
to the extent practicable, interested members of the
affected community of the progress and substance of
technical meetings between the lead agency and
potentially responsible parties regarding a covered
facility.
(3) Alternatives.--Members of the local community
may propose remedial action alternatives in the same
manner as alternatives proposed by any other interested
parties.
(h) Community Advisory Groups.--
(1) Notice.--The Administrator shall, to the extent
practicable, provide notice of an opportunity to form a
community advisory group to members of the affected
community, particularly persons who are immediately
proximate to or may be or may have been affected by the
release or threatened release of a hazardous substance,
pollutant, or contaminant from the facility.
(2) Establishment.--The Administrator shall assist
in the establishment of a community advisory group for
a covered facility to achieve direct, regular, and
meaningful communication among members of the local
community throughout the response action process--
(A) at the request of at least 20
individuals residing in, or at least 10 percent
of the population of, the area in which that
facility is located;
(B) if there is no request under
subparagraph (A), at the request of any local
government with jurisdiction over the facility;
or
(C) if the Administrator determines that a
community advisory group would be helpful to
achieve the purposes of this Act.
(3) Responsibilities of a community advisory
group.--A community advisory group shall--
(A) solicit the views of the local
community on various issues affecting the
development and implementation of response
actions at the facility;
(B) serve as a conduit for information
between the local community and other entities
represented on the community advisory group;
(C) present the views of the local
community throughout the response process; and
(D) provide the local community reasonable
notice of and opportunities to participate in
the meetings and other activities of the
community advisory group.
(4) Responsibilities of the administrator.--
(A) Consultation.--The Administrator
shall--
(i) consult with the community
advisory group in developing and
implementing the response action for a
covered facility, including--
(I) activities to be
included in the facility work
plan and remedial
investigation;
(II) assumptions regarding
reasonably anticipated future
land uses;
(III) potential remedial
alternatives;
(IV) selection and
implementation of removal and
remedial actions (including
operation and maintenance
activities) and reviews
performed under section 121(c);
and
(V) use of institutional
controls;
(ii) encourage the Administrator of
ATSDR and State, in cooperation with
State, Indian Tribe, and local public
health officials to consult with the
community advisory group regarding
health assessments;
(iii) keep the community advisory
group informed of progress in the
development and implementation of the
response action; and
(iv) on request, provide to any
person the hazard ranking score of any
facility that has been scored under the
hazardous ranking system, and the
preliminary assessment and site
inspection for the facility.
(B) Timely submission of comments.--The
Administrator shall consider comments,
information, and recommendations that the
community advisory group provides in a timely
manner.
(C) Consensus.--The community advisory
group shall attempt to achieve consensus among
its members before providing comments and
recommendations to the Administrator. If
consensus cannot be reached, the community
advisory group shall report or allow
presentation of divergent views.
(5) Composition of community advisory groups.--
(A) Members.--The Administrator shall, to
the extent practicable, ensure that the
membership of a community advisory group
reflects the composition of the affected
community and a diversity of interests. A
community advisory group for a covered facility
shall include a minimum of 1 representative of
the recipients of a technical assistance grant,
if any has been awarded with respect to the
facility, and shall include, to the extent
practicable, a person from each of the
following groups:
(i) Persons who reside or own
residential property near the facility.
(ii) Persons who, although they may
not reside or own property near the
facility, may be affected by the
facility contamination.
(iii) Local public health
practitioners or medical practitioners
(particularly practitioners that are
practicing in the affected community).
(iv) Local Indian communities that
may be affected by the facility
contamination.
(v) Local citizen, civic,
environmental, or public interest
groups.
(vi) Members of the local business
community.
(vii) Employees at the facility
during facility operation.
(B) Local residents.--Local community
members shall comprise a majority of the voting
membership of a community advisory group.
(C) Number of voting members.--The
Administrator shall, to the extent practicable,
ensure that the voting membership of the
community advisory group does not exceed 20
persons.
(D) Compensation.--Members of a community
advisory group shall serve without
compensation.
(E) Nonvoting members.--The Administrator
shall ensure that representatives of the
following entities have an opportunity to
participate as appropriate (as nonvoting
members) in community advisory group meetings
for purposes including providing information
and technical expertise):
(i) The Administrator.
(ii) The Administrator of the
ATSDR.
(iii) Other Federal agencies.
(iv) Affected States.
(v) Affected Indian Tribes.
(vi) Representatives of affected
local governments, such as city or
county governments or local emergency
planning committees, and any other
governmental unit that regulates land
use or land use planning in the
vicinity of the facility.
(vii) Facility owners.
(viii) Potentially responsible
parties.
(6) Technical assistance grants.--The Administrator
may award a technical assistance grant under subsection
(i) to a community advisory group.
(7) Administrative support.--The Administrator, to
the extent practicable, may provide administrative
services and support services to the community advisory
group.
(8) Other community advisory groups.--The President
may determine that a Department of Defense restoration
advisory board, a Department of Energy site specific
advisory board, an ATSDR citizen advisory panel, or an
equivalent advisory group can serve the same function
as a community advisory group, and in that instance no
other community action group shall be required.
(9) Federal advisory committee act.--The Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply
to a community advisory group, to a citizen advisory
group (designated by the President to serve the
functions of a community advisory group, or to a
Department of Defense restoration advisory board,
Department of Energy Site Specific advisory board, or
an ATSDR citizen advisory panel.
(10) Other public involvement.--The existence of a
community advisory group shall not diminish any other
obligation of the President to consider the views of
any person in selecting response actions under this
Act. Nothing in this section affects the status of any
community advisory group formed before the date of
enactment of this subsection. Nothing in this section
affects the status, decisions, or future formation of
any Department of Defense Restoration Advisory Board,
or Department of Energy Site Specific Advisory Board,
and no community advisory group need be established for
a facility if any such Board has been established for
the facility.
(i) Technical Assistance Grants.--
(1) Authority.--
(A) In general.--The Administrator may make
grants available to members of an affected
community for a covered facility in accordance
with this subsection.
(B) Accessibility of application process.--
To ensure that the application process for a
technical assistance grant is accessible to all
affected citizen groups, the Administrator
shall periodically review the application
process and, based on the review, implement
appropriate changes to improve access.
(2) Special rules.--
(A) No matching contribution.--No matching
contribution shall be required for a technical
assistance grant.
(B) Methods of payment.--The Administrator
may disburse the grant to a recipient in
advance of the recipient's making expenditures
to be covered by the grant. In the event that
the Administrator advances funds, funds shall
be advanced in amounts that do not exceed to
the greater of $5,000 or 10 percent of the
grant amount.
(3) Limit per facility.--
(A) In general.--The Administrator may
award not more than 1 technical assistance
grant at 1 time with respect to a single
covered facility.
(B) Extension.--The Administrator may
extend a project period established in a grant
to facilitate public participation at all
stages of a response action.
(4) Funding amount.--
(A) In general.--Except as provided in
subparagraph (B), the amount of a technical
assistance grant may not exceed $50,000 for a
single grant recipient.
(B) Increase.--The Administrator may waive
the limit on the amount of an initial technical
assistance grant if such an increase is
necessary to reflect--
(i) the complexity and duration of
the response action;
(ii) the nature and extent of
contamination at the facility;
(iii) the level of facility
activity;
(iv) projected total needs as
requested by the grant recipient;
(v) the size of and distances
between the affected communities; or
(vi) the ability of the grant
recipient to identify and raise funds
from other non-Federal sources.
(5) Considerations.--In determining how to
structure payment of the amount of a technical
assistance grant, whether to extend a grant project
period under subparagraph (3)(B), or whether to grant a
waiver under paragraph (4)(B), the Administrator may
consider factors such as the geographical size of the
facility and the distances between affected
communities.
(6) Use of technical assistance grants.--
(A) In general.--A technical assistance
grant recipient may use a grant--
(i) to hire experts to assist the
recipient in interpreting information
and preparing the presentation of the
recipient's views with regard to a
response action at the facility
(including any phase identified in
subsection (h)(4)(A));
(ii) to publish newsletters or
otherwise disseminate information to
other members of the local community;
or
(iii) to provide funding for
training for interested affected
citizens to enable the citizens to more
effectively participate in the response
process.
(B) Limitation on use for training.--The
technical assistance grant recipient may use no
more than 10 percent of the amount of a
technical assistance grant, or $5,000,
whichever is less, for training under
subparagraph (A)(iii).
(7) Grant guidelines.--Not later than 180 days
after the date of enactment of this paragraph, the
Administrator shall ensure that any guidelines
concerning the management of technical assistance
grants by grant recipients conform with this section.
[42 U.S.C. 9617]
SEC. 118. HIGH PRIORITY FOR DRINKING WATER SUPPLIES.
For purposes of taking action under section 104 or 106
and listing facilities on the National Priorities List, the
President shall give a high priority to facilities where the
release of hazardous substances or pollutants or contaminants
has resulted in the closing of drinking water wells or has
contaminated a principal drinking water supply.
[42 U.S.C. 9618]
SEC. 119. RESPONSE ACTION CONTRACTORS.
(a) Liability of Response Action Contractors.--
(1) Response action contractors.--A person who is a
response action contractor with respect to any release
or threatened release of a hazardous substance or
pollutant or contaminant from a vessel or facility
shall not be liable under this [title or under any
other Federal law] title or under any other Federal or
State law to any person for injuries, costs, damages,
expenses, or other liability (including but not limited
to claims for indemnification or contribution and
claims by third parties for death, personal injury,
illness or loss of or damage to property or economic
loss) which results from such release or threatened
release.
[(2) Negligence, etc.--Paragraph (1) shall not
apply in the case of a release that is caused by
conduct of the response action contractor which is
negligent, grossly negligent, or which constitutes
intentional misconduct.]
(2) Application of state law.--Paragraph (1) shall
not apply in determining the liability of a response
action contractor under the law of a State if the State
has adopted by statute a law determining the liability
of a response action contractor.
(3) Effect on warranties; employer liability.--
Nothing in this subsection shall affect the liability
of any person under any warranty under Federal, State,
or common law. Nothing in this subsection shall affect
the liability of an employer who is a response action
contractor to any employee of such employer under any
provision of law, including any provision of any law
relating to worker's compensation.
(4) Governmental employees.--A state employee or an
employee of a political subdivision who provides
services relating to response action while acting
within the scope of his authority as a governmental
employee shall have the same exemption from liability
(subject to the other provisions of this section) as is
provided to the response action contractor under this
section.
(b) Savings Provisions.--
(1) Liability of other persons.--The defense
provided by section 107(b)(3) shall not be available to
any potentially responsible party with respect to any
costs or damages caused by any act or omission of a
response action contractor. Except as provided in
subsection (a)(4) and the preceding sentence, nothing
in this section shall affect the liability under this
Act or under any other Federal or State law of any
person, other than a response action contractor.
(2) Burden of plaintiff.--Nothing in this section
shall affect the plaintiff's burden of establishing
liability under this title.
(c) Indemnification.--
(1) In general.--The President may agree to hold
harmless and indemnify any response action contractor
meeting the requirements of this subsection against any
liability (including the expenses of litigation or
settlement) for negligence arising out of the
contractor's performance in carrying out response
action activities under this title, unless such
liability was caused by conduct of the contractor which
was grossly negligent or which constituted intentional
misconduct. The agreement may apply to a claim for
negligence in connection with a response action
undertaken pursuant to this Act arising under Federal
or State law.
(2) Applicability.--This subsection shall apply
only with respect to a response action carried out
under written agreement with--
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which
has entered into a contract or cooperative
agreement in accordance with section 104(d)(1)
of this title; or
(D) any potentially responsible party
carrying out any agreement under section 122
(relating to settlements) or section 106
(relating to abatement).
(3) Source of funding.--This subsection shall not
be subject to section 1301 or 1341 of title 31 of the
United States Code or section 3732 of the Revised
Statutes (41 U.S.C. 11) or to section 3 of the
Superfund Amendments and Reauthorization Act of 1986.
For purposes of section 111, amounts expended pursuant
to this subsection for indemnification of any response
action contractor (except with respect to federally
owned or operated facilities) shall be considered
governmental response costs incurred pursuant to
section 104. If sufficient funds are unavailable in the
Hazardous Substance Superfund established under
subchapter A of chapter 98 of the Internal Revenue Code
of 1954 to make payments pursuant to such
indemnification or if the Fund is repealed, there are
authorized to be appropriated such amounts as may be
necessary to make such payments.
[(4) Requirements.--An indemnification agreement
may be provided under this subsection only if the
President determines that each of the following
requirements are met:
[(A) The liability covered by the
indemnification agreement exceeds or is not
covered by insurance available, at a fair and
reasonable price, to the contractor at the time
the contractor enters into the contract to
provide response action, and adequate insurance
to cover such liability is not generally
available at the time the response action
contract is entered into.
[(B) The response action contractor has
made diligent efforts to obtain insurance
coverage from non-Federal sources to cover such
liability.
[(C) In the case of a response action
contract covering more than one facility, the
response action contractor agrees to continue
to make such diligent efforts each time the
contractor begins work under the contract at a
new facility.]
(4) Decision to indemnify.--
(A) In general.--For each response action
contract for a vessel or facility, the
Administrator shall make a decision whether to
enter into an indemnification agreement with a
response action contractor.
(B) Standard.--The Administrator may enter
into an indemnification agreement to the extent
that the potential liability (including the
risk of harm to public health, safety,
environment, and property) involved in a
response action exceed or are not covered by
insurance available to the contractor at a fair
and reasonable price at the time at which the
response action is begun (including
consideration of premium, policy terms, and
deductibles). The Administrator shall assess
both the amount of potential liability and the
amount of insurance available.
(C) Diligent efforts.--The Administrator
may enter into an indemnification agreement if
the Administrator determines that the response
action contractor has made diligent efforts to
obtain insurance coverage from non-Federal
sources to cover potential liabilities.
(D) Continued diligent efforts.--An
indemnification agreement shall require the
response action contractor to continue, not
more frequently than annually, to make diligent
efforts to obtain insurance coverage from non-
Federal sources to cover potential liabilities.
(E) Limitations on indemnification.--An
indemnification agreement provided under this
subsection shall include deductibles and shall
place limits on the amount of indemnification
made available in amounts determined by the
contracting agency to be appropriate in light
of the unique risk factors associated with the
cleanup activity.
(5) Limitations.--
(A) Liability covered.--Indemnification
under this subsection shall apply only to
response action contractor liability which
results from a release or threatened release of
any hazardous substance or pollutant or
contaminant if such release or threatened
release arises out of response action
activities.
(B) Deductibles and limits.--An
indemnification agreement under this subsection
shall include deductibles and shall place
limits on the amount of indemnification to be
made available.
(C) Contracts with potentially responsible
parties.--
(i) Decision to indemnify.--In
deciding whether to enter into an
indemnification agreement with a
response action contractor carrying out
a written contract or agreement with
any potentially responsible party, the
President shall determine an amount
which the potentially responsible party
is able to indemnify the contractor.
The President may enter into such an
indemnification agreement only if the
President determines that such amount
of indemnification is inadequate to
cover any reasonable potential
liability of the contractor arising out
of the contractor''s negligence in
performing the contract or agreement
with such party. The President shall
make the determinations in the
preceding sentences (with respect to
the amount and the adequacy of the
amount) taking into account the total
net assets and resources of potentially
responsible parties with respect to the
facility at the time of such
determinations.
(ii) Conditions.--The President may
pay a claim under an indemnification
agreement referred to in clause (i) for
the amount determined under clause (i)
only if the contractor has exhausted
all administrative, judicial, and
common law claims for indemnification
against all potentially responsible
parties participating in the clean-up
of the facility with respect to the
liability of the contractor arising out
of the contractor's negligence in
performing the contract or agreement
with such party. Such indemnification
agreement shall require such contractor
to pay any deductible established under
subparagraph (B) before the contractor
may recover any amount from the
potentially responsible party or under
the indemnification agreement.
(D) RCRA facilities.--No owner or operator
of a facility regulated under the Solid Waste
Disposal Act may be indemnified under this
subsection with respect to such facility.
(E) Persons retained or hired.--A person
retained or hired by a person described in
subsection (e)(2)(B) shall be eligible for
indemnification under this subsection only if
the President specifically approves of the
retaining or hiring of such person.
(6) Cost recovery.--For purposes of section 107,
amounts expended pursuant to this subsection for
indemnification of any person who is a response action
contractor with respect to any release or threatened
release shall be considered a cost of response incurred
by the United States Government with respect to such
release.
(7) Regulations.--The President shall promulgate
regulations for carrying out the provisions of this
subsection. Before promulgation of the regulations, the
President shall develop guidelines to carry out this
section. Development of such guidelines shall include
reasonable opportunity for public comment.
(8) Study.--The Comptroller General shall conduct a
study in the fiscal year ending September 30, 1989, on
the application of this subsection, including whether
indemnification agreements under this subsection are
being used, the number of claims that have been filed
under such agreements, and the need for this
subsection. The Comptroller General shall report the
findings of the study to Congress no later than
September 30, 1989.
(d) Exception.--The exemption provided under subsection (a)
and the authority of the President to offer indemnification
under subsection (c) shall not apply to any person covered by
the provisions of paragraph (1), (2), (3), or (4) of section
107(a) with respect to the release or threatened release
concerned if such person would be covered by such provisions
even if such person had not carried out any actions referred to
in subsection (e) of this section.
(e) Definitions.--For purposes of this section--
(1) Response action contract.--The term ``response
action contract'' means any written contract or
agreement entered into by a response action contractor
(as defined in paragraph (2)(A) of this subsection)
with--
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which
has entered into a contract or cooperative
agreement in accordance with section 104(d)(1)
of this Act; or
(D) any potentially responsible party
[carrying out an agreement under section 106 or
122];
to provide [any remedial action under this Act at a
facility listed on the National Priorities List, or any
removal under this Act,] any response action under this
Act, with respect to any release or threatened release
of a hazardous substance or pollutant or contaminant
from the facility or to provide any evaluation,
planning, engineering, surveying and mapping, design,
construction, equipment, or any ancillary services
thereto for such facility or to undertake appropriate
action necessary to protect and restore any natural
resource damaged by the release or threatened release.
(2) Response action contractor.--The term
``response action contractor'' means--
(A) any--
(i) person who enters into a
response action contract with respect
to any release or threatened release of
a hazardous substance or pollutant or
contaminant from a facility [and is
carrying out such contract] covered by
this section and any person (including
any subcontractor) hired by a response
action contractor; and \58\
---------------------------------------------------------------------------
\58\ So in original. Clause (iii) was added by section 101(f) of
Public Law 100-202 without striking out the ``and'' at the end of
clause (i).
---------------------------------------------------------------------------
(ii) person, public or nonprofit
private entity, conducting a field
demonstration pursuant to section
311(b); and
(iii) Recipients \59\ of grants
(including sub-grantees) under section
126 \60\ for the training and education
of workers who are or may be engaged in
activities related to hazardous waste
removal, containment, or emergency
response under this Act; and
---------------------------------------------------------------------------
\59\ So in original. ``Recipients of grants'' probably should be
``recipient of a grant''.
\60\ So in original. Should probably be ``section 126 of the
Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C.
9660a)''.
---------------------------------------------------------------------------
(B) any person who is retained or hired by
a person described in subparagraph (A) to
provide any services relating to a response
action; and
(C) any surety who after October 16, 1990,
[and before January 1, 1996,] provides a bid,
performance or payment bond to a response
action contractor, and begins activities to
meet its obligations under such bond, but only
in connection with such activities or
obligations.
(3) Insurance.--The term ``insurance'' means
liability insurance which is fair and reasonably
priced, as determined by the President, and which is
made available at the time the contractor enters into
the response action contract to provide response
action.
(f) Competition.--Response action contractors and
subcontractors for program management, construction management,
architectural and engineering, surveying and mapping, and
related services shall be selected in accordance with title IX
of the Federal Property and Administrative Services Act of
1949. The Federal selection procedures shall apply to
appropriate contracts negotiated by all Federal governmental
agencies involved in carrying out this Act. Such procedures
shall be followed by response action contractors and
subcontractors.
(g) Surety Bonds.--
(1) If under the Act of August 24, 1935 (40 U.S.C.
270a-270d), commonly referred to as the ``Miller Act'',
surety bonds are required for any direct Federal
procurement of any response action contract and are not
waived pursuant to the Act of April 29, 1941 (40 U.S.C.
270e-270f), they shall be issued in accordance with
such Act of August 24, 1935.
(2) If under applicable Federal law surety bonds
are required for any direct Federal procurement of any
response action contract, no right of action shall
accrue on the performance bond issued on such response
action contract to or for the use of any person other
than the obligee named in the bond.
(3) If under applicable Federal law surety bonds
are required for any direct Federal procurement of any
response action contract, unless otherwise provided for
by the procuring agency in the bond, in the event of a
default, the surety's liability on a performance bond
shall be only for the cost of completion of the
contract work in accordance with the plans and
specifications less the balance of funds remaining to
be paid under the contract, up to the penal sum of the
bond. The surety shall in no event be liable on bonds
to indemnify or compensate the obligee for loss or
liability arising from personal injury or property
damage whether or not caused by a breach of the bonded
contract.
(4) Nothing in this subsection shall be construed
as preempting, limiting, superseding, affecting,
applying to, or modifying any State laws, regulations,
requirements, rules, practices or procedures. Nothing
in this subsection shall be construed as affecting,
applying to, modifying, limiting, superseding, or
preempting any rights, authorities, liabilities,
demands, actions, causes of action, losses, judgments,
claims, statutes of limitation, or obligations under
Federal or State law, which do not arise on or under
the bond.
(5) This subsection shall not apply to bonds
executed before October 17, 1990[, or after December
31, 1995].
(h) Limitation on Actions Against Response Action
Contractors.--
(1) In general.--No action may be brought under
this Act as a result of the performance of services
under a response contract against a response action
contractor after the date that is 7 years after the
date of completion of work at any facility under the
contract to recover--
(A) injury to property, real or personal;
(B) personal injury or wrongful death;
(C) other expenses or costs arising out of
the performance of services under the contract;
or
(D) contribution or indemnity for damages
sustained as a result of an injury described in
subparagraphs (A) through (C).
(2) Exception.--Paragraph (1) does not bar recovery
for a claim caused by the conduct of the response
action contractor that is grossly negligent or that
constitutes intentional misconduct.
(3) Indemnification.--This subsection does not
affect any right of indemnification that a response
action contractor may have under this section or may
acquire by contract with any person.
[42 U.S.C. 9619]
[SEC. 120. FEDERAL FACILITIES.]\61\
SEC. 120. FEDERAL ENTITIES AND FACILITIES.
(a) Application of Act to Federal Government.--
---------------------------------------------------------------------------
\61\ Section 120(b) of the Superfund Amendments and Reauthorization
Act of 1986 (P.L. 99-499) provides:
(b) Limited Grandfather.--Section 120 of CERCLA shall not apply to
any response action or remedial action for which a plan is under
development by the Department of Energy on the date of enactment of
this Act [October 17, 1986] with respect to facilities--
---------------------------------------------------------------------------
(1) owned or operated by the United States and subject to the
jurisdiction of such Department;
(2) located in St. Charles and St. Louis counties, Missouri,
or the city of St. Louis, Missouri; and
(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall consult with the
Administrator of the Environmental Protection Agency.
[(1) In general.--Each department, agency, and
instrumentality of the United States (including the
executive, legislative, and judicial branches of
government) shall be subject to, and comply with, this
Act in the same manner and to the same extent, both
procedurally and substantively, as any nongovernmental
entity, including liability under section 107 of this
Act. Nothing in this section shall be construed to
affect the liability of any person or entity under
sections 106 and 107.]
(1) In general.--
(A) Definition of service charge.--In this
paragraph, the term ``service charge''
includes--
(i) a fee or charge assessed in
connection with--
(I) the processing or
issuance of a permit, renewal
of a permit, or amendment of a
permit;
(II) review of a plan,
study, or other document; or
(III) inspection or
monitoring of a facility; and
(ii) any other charge that is
assessed in connection with a State,
interstate, or local response program.
(B) Application of federal, state, and
local law.--
(i) In general.--Each department,
agency, and instrumentality of the
executive, legislative, or judicial
branch of the United States shall be
subject to and shall comply with this
Act and all other Federal, State,
interstate, and local substantive and
procedural requirements and other
provisions of law relating to a
response action or restoration action
or the management of a hazardous waste,
pollutant, or contaminant in the same
manner, and to the same extent, as any
nongovernmental entity is subject to
those provisions of law.
(ii) Provisions included.--The
requirements and other provisions of
law referred to in clause (i) include--
(I) a permit requirement;
(II) a reporting
requirement;
(III) a provision
authorizing injunctive relief
(including such sanctions as a
court may impose to enforce
injunctive relief);
(IV) sections 106 and 107
and similar provisions of
Federal, State, interstate, and
local law relating to
enforcement and liability for
cleanup, reimbursement of
response costs, (including
attorney's fees) contribution,
and payment of damages;
(V) a requirement to pay
reasonable service charges;
(VI) a requirement to
comply with an administrative
order; and
(VII) a requirement to pay
a civil or administrative
penalty, regardless of whether
the penalty is punitive or
coercive in nature or is
imposed for an isolated,
intermittent, or continuing
violation.
(C) Waiver of sovereign immunity.--
(i) In general.--The United States
waives any immunity applicable to the
United States with respect to any
provision of law described in
subparagraph (B).
(ii) Limitation.--The waiver of
sovereign immunity under clause (i)
does not apply to the extent that a
State law would apply any standard or
requirement to a Federal department,
agency, or instrumentality in a manner
that is more stringent than the manner
in which the standard or requirement
would apply to any other person.
(D) Civil and criminal liability.--
(i) Injunctive relief.--Neither the
United States nor any agent, employee,
or officer of the United States shall
be immune or exempt from any process or
sanction of any Federal or State court
with respect to the enforcement of
injunctive relief referred to in
subparagraph (B)(ii)(III).
(ii) No personal liability for
civil penalty.--No agent, employee, or
officer of the United States shall be
personally liable for any civil penalty
under any Federal or State law relating
to a response action or to management
of a hazardous substance, pollutant, or
contaminant with respect to any act or
omission within the scope of the
official duties of the agent, employee,
or officer.
(iii) Criminal liability.--An
agent, employee, or officer of the
United States shall be subject to any
criminal sanction (including a fine or
imprisonment) under any Federal or
State law relating to a response action
or to management of a hazardous
substance, pollutant, or contaminant,
but no department, agency, or
instrumentality of the executive,
legislative, or judicial branch of the
United States shall be subject to any
such sanction.
(E) Enforcement.--
(i) Abatement actions.--The
Administrator may issue an order under
section 106 to any department, agency,
or instrumentality of the executive,
legislative, or judicial branch of the
United States. The Administrator shall
initiate an administrative enforcement
action against such a department,
agency, or instrumentality in the same
manner and under the same circumstances
as an action would be initiated against
any other person.
(ii) Consultation.--No
administrative order issued to a
department, agency, or instrumentality
of the United States shall become final
until the department, agency, or
instrumentality has had the opportunity
to confer with the Administrator.
(iii) Use of penalties and fines.--
Unless a State law in effect on the
date of enactment of this clause, or a
State constitution, requires the funds
to be used in a different manner, all
funds collected by a State from the
Federal Government as a penalty for
violation of a provision of law
referred to in subparagraph (B) shall
be used by the State only for projects
designed to improve or protect the
environment or to defray the costs of
environmental protection or
enforcement.
(F) Contribution.--A department, agency, or
instrumentality of the United States shall have
the right to contribution under section 113 if
the department, agency, or instrumentality
resolves its liability under this Act.
(2) Application of requirements to federal
facilities.--All guidelines, rules, regulations, and
criteria which are applicable to preliminary
assessments carried out under this Act for facilities
at which hazardous substances are located, applicable
to evaluations of such facilities under the National
Contingency Plan, applicable to inclusion on the
National Priorities List, or applicable to remedial
actions at such facilities shall also be applicable to
facilities which are owned or operated by a department,
agency, or instrumentality of the United States in the
same manner and to the extent as such guidelines,
rules, regulations, and criteria are applicable to
other facilities. No department, agency, or
instrumentality of the United States may adopt or
utilize any such guidelines, rules, regulations, or
criteria which are inconsistent with the guidelines,
rules, regulations, and criteria established by the
Administrator under this Act.
(3) Exceptions.--This subsection shall not apply to
the extent otherwise provided in this section with
respect to applicable time periods. This subsection
shall also not apply to any requirements relating to
bonding, insurance, or financial responsibility.
Nothing in this Act shall be construed to require a
State to comply with section 104(c)(3) in the case of a
facility which is owned or operated by any department,
agency, or instrumentality of the United States.
[(4) State laws.--State laws concerning removal and
remedial action, including State laws regarding
enforcement, shall apply to removal and remedial action
at facilities owned or operated by a department,
agency, or instrumentality of the United States or
facilities that are the subject of a deferral under
subsection (h)(3)(C) when such facilities are not
included on the National Priorities List. The preceding
sentence shall not apply to the extent a State law
would apply any standard or requirement to such
facilities which is more stringent than the standards
and requirements applicable to facilities which are not
owned or operated by any such department, agency, or
instrumentality.]
(b) Notice.--Each department, agency, and instrumentality
of the United States shall add to the inventory of Federal
agency hazardous waste facilities required to be submitted
under section 3016 of the Solid Waste Disposal Act (in addition
to the information required under section 3016(a)(3) of such
Act) information on contamination from each facility owned or
operated by the department, agency, or instrumentality if such
contamination affects contiguous or adjacent property owned by
the department, agency, or instrumentality or by any other
person, including a description of the monitoring data
obtained.
(c) Federal Agency Hazardous Waste Compliance Docket.--The
Administrator shall establish a special Federal Agency
Hazardous Waste Compliance Docket (hereinafter in this section
referred to as the ``docket'') which shall contain each of the
following:
(1) All information submitted under section 3016 of
the Solid Waste Disposal Act and subsection (b) of this
section regarding any Federal facility and notice of
each subsequent action taken under this Act with
respect to the facility.
(2) Information submitted by each department,
agency, or instrumentality of the United States under
section 3005 or 3010 of such Act.
(3) Information submitted by the department,
agency, or instrumentality under section 103 of this
Act.
The docket shall be available for public inspection at
reasonable times. Six months after establishment of the docket
and every 6 months thereafter, the Administrator shall publish
in the Federal Register a list of the Federal facilities which
have been included in the docket during the immediately
preceding 6-month period. Such publication shall also indicate
where in the appropriate regional office of the Environmental
Protection Agency additional information may be obtained with
respect to any facility on the docket. The Administrator shall
establish a program to provide information to the public with
respect to facilities which are included in the docket under
this subsection.
(d) Assessment and Evaluation.--
(1) In general.--The Administrator shall take steps
to assure that a preliminary assessment is conducted
for each facility on the docket. Following such
preliminary assessment, the Administrator shall, where
appropriate--
(A) evaluate such facilities in accordance
with the criteria established in accordance
with section 105 under the National Contingency
Plan for determining priorities among releases;
and
(B) include such facilities on the National
Priorities List maintained under such plan if
the facility meets such criteria.
(2) Application of criteria.--
(A) In general.--Subject to subparagraph
(B), the criteria referred to in paragraph (1)
shall be applied in the same manner as the
criteria are applied to facilities that are
owned or operated by persons other than the
United States.
(B) Response under other law.--It shall be
an appropriate factor to be taken into
consideration for the purposes of section
105(a)(8)(A) that the head of the department,
agency, or instrumentality that owns or
operates a facility has arranged with the
Administrator or appropriate State authorities
to respond appropriately, under authority of a
law other than this Act, to a release or
threatened release of a hazardous substance.
(3) Completion.--Evaluation and listing under this
subsection shall be completed in accordance with a
reasonable schedule established by the Administrator.
(e) Required Action by Department.--
(1) RIFS.--Not later than 6 months after the
inclusion of any facility on the National Priorities
List, the department, agency, or instrumentality which
owns or operates such facility shall, in consultation
with the Administrator and appropriate State
authorities, commence a remedial investigation and
feasibility study for such facility. In the case of any
facility which is listed on such list before the date
of the enactment of this section, the department,
agency, or instrumentality which owns or operates such
facility shall, in consultation with the Administrator
and appropriate State authorities, commence such an
investigation and study for such facility within one
year after such date of enactment. The Administrator
and appropriate State authorities shall publish a
timetable and deadlines for expeditious completion of
such investigation and study.
(2) Commencement of remedial action; interagency
agreement.--The Administrator shall review the results
of each investigation and study conducted as provided
in paragraph (1). Within 180 days thereafter, the head
of the department, agency, or instrumentality concerned
shall enter into an interagency agreement with the
Administrator for the expeditious completion by such
department, agency, or instrumentality of all necessary
remedial action at such facility. Substantial
continuous physical onsite remedial action shall be
commenced at each facility not later than 15 months
after completion of the investigation and study. All
such interagency agreements, including review of
alternative remedial action plans and selection of
remedial action, shall comply with the public
participation requirements of section 117.
(3) Completion of remedial actions.--Remedial
actions at facilities subject to interagency agreements
under this section shall be completed as expeditiously
as practicable. Each agency shall include in its annual
budget submissions to the Congress a review of
alternative agency funding which could be used to
provide for the costs of remedial action. The budget
submission shall also include a statement of the hazard
posed by the facility to human health, welfare, and the
environment and identify the specific consequences of
failure to begin and complete remedial action.
(4) Contents of agreement.--Each interagency
agreement under this subsection shall include, but
shall not be limited to, each of the following:
(A) A review of alternative remedial
actions and selection of a remedial action by
the head of the relevant department, agency, or
instrumentality and the Administrator or, if
unable to reach agreement on selection of a
remedial action, selection by the
Administrator.
(B) A schedule for the completion of each
such remedial action.
(C) Arrangements for long-term operation
and maintenance of the facility.
(5) Annual report.--Each department, agency, or
instrumentality responsible for compliance with this
section shall furnish an annual report to the Congress
concerning its progress in implementing the
requirements of this section. Such reports shall
include, but shall not be limited to, each of the
following items:
(A) A report on the progress in reaching
interagency agreements under this section.
(B) The specific cost estimates and
budgetary proposals involved in each
interagency agreement.
(C) A brief summary of the public comments
regarding each proposed interagency agreement.
(D) A description of the instances in which
no agreement was reached.
(E) A report on progress in conducting
investigations and studies under paragraph (1).
(F) A report on progress in conducting
remedial actions.
(G) A report on progress in conducting
remedial action at facilities which are not
listed on the National Priorities List.
With respect to instances in which no agreement was
reached within the required time period, the
department, agency, or instrumentality filing the
report under this paragraph shall include in such
report an explanation of the reasons why no agreement
was reached. The annual report required by this
paragraph shall also contain a detailed description on
a State-by-State basis of the status of each facility
subject to this section, including a description of the
hazard presented by each facility, plans and schedules
for initiating and completing response action,
enforcement status (where appropriate), and an
explanation of any postponements or failure to complete
response action. Such reports shall also be submitted
to the affected States.
(6) Settlements with other parties.--If the
Administrator, in consultation with the head of the
relevant department, agency, or instrumentality of the
United States, determines that remedial investigations
and feasibility studies or remedial action will be done
properly at the Federal facility by another potentially
responsible party within the deadlines provided in
paragraphs (1), (2), and (3) of this subsection, the
Administrator may enter into an agreement with such
party under section 122 (relating to settlements).
Following approval by the Attorney General of any such
agreement relating to a remedial action, the agreement
shall be entered in the appropriate United States
district court as a consent decree under section 106 of
this Act.
(7) State requirements.--Notwithstanding any other
provision of this Act, an interagency agreement under
this section shall not impair or diminish the authority
of a State, political subdivision of a State, or any
other person or the jurisdiction of any court to
enforce compliance with requirements of State or
Federal law, unless those requirements, without
objection after notice to the State before or on the
date on which the response action is selected, have
been--
(A) specifically addressed in the
agreement; or
(B) specifically waived.
(f) State and Local Participation.--The Administrator and
each department, agency, or instrumentality responsible for
compliance with this section shall afford to relevant State and
local officials the opportunity to participate in the planning
and selection of the remedial action, including but not limited
to the review of all applicable data as it becomes available
and the development of studies, reports, and action plans. In
the case of State officials, the opportunity to participate
shall be provided in accordance with section 121.
[(g) Transfer of Authorities.--Except for authorities
which are delegated by the Administrator to an officer or
employee of the Environmental Protection Agency, no authority
vested in the Administrator under this section may be
transferred, by executive order of the President or otherwise,
to any other officer or employee of the United States or to any
other person.]
(g) Transfer of Authorities.--
(1) Definitions.--In this section:
(A) Interagency agreement.--The term
``interagency agreement'' means an interagency
agreement under this section.
(B) Transfer agreement.--The term
``transfer agreement'' means a transfer
agreement under paragraph (3).
(C) Transferee state.--The term
``transferee State'' means a State to which
authorities have been transferred under a
transfer agreement.
(2) State application for transfer of federal
authorities.--Subject to paragraph (3), a State may
apply to the Administrator to exercise the authorities
identified pursuant to section 130(d)(2)(A) at any
facility located in the State that is--
(A) owned or operated by any department,
agency, or instrumentality of the United States
(including the executive, legislative, and
judicial branches of government); and
(B) listed on the National Priorities List.
(3) Transfer of authorities.--
(A) Determinations.--The Administrator
shall enter into a transfer agreement to
transfer to a State the authorities described
in paragraph (2) with respect to a facility
described in paragraph (2) under the same
conditions as authority may be delegated to a
State with respect to a non-Federal listed
facility under section 130(d).
(B) Contents of transfer agreement.--In the
case of a transfer agreement covering a
facility with respect to which there is no
interagency agreement that specifies a dispute
resolution process, the transfer agreement
shall require that within 120 days after the
effective date of the transfer agreement, the
State shall agree with the head of the Federal
department, agency, or instrumentality that
owns or operates the facility on a process for
resolution of any disputes between the State
and the Federal department, agency, or
instrumentality regarding the selection of a
remedial action for the facility.
(C) Conditions on state exercise of
authorities.--Subsections (e) and (f) of
section 130 (other than section 130(f)(5))
shall apply to any facility subject to a
transfer agreement under subparagraph (A).
(D) Cost recovery.--The Administrator
retains the authority to take action under
section 107 to recover response costs from a
potentially responsible party for any Federal
listed facility for which responsibility is
transferred to a State.
(4) Effect on interagency agreements.--Nothing in
this subsection shall require, authorize, or permit the
modification or revision of an interagency agreement
covering a facility with respect to which authorities
have been transferred to a State under a transfer
agreement (except for the substitution of the
transferee State for the Administrator in the terms of
the interagency agreement, including terms stating
obligations intended to preserve the confidentiality of
information) without the written consent of the
Governor of the State and the head of the department,
agency, or instrumentality.
(5) Selected remedial action.--The remedial action
selected for a facility under section 121 by a
transferee State shall constitute the only remedial
action required to be conducted at the facility, and
the transferee State shall be precluded from enforcing
any other remedial action requirement under Federal or
State law, except for any corrective action under the
Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) that
was initiated prior to the date of enactment of this
subsection.
(6) Dispute resolution and enforcement.--
(A) Dispute resolution.--
(i) Facilities covered by both a
transfer agreement and an interagency
agreement.--In the case of a facility
with respect to which there is both a
transfer agreement and an interagency
agreement, if the State does not concur
in the remedial action proposed for
selection by the Federal department,
agency, or instrumentality, the Federal
department, agency, or instrumentality
and the State shall engage in the
dispute resolution process provided for
in the interagency agreement, except
that the final level for resolution of
the dispute shall be the head of the
Federal department, agency, or
instrumentality and the Governor of the
State.
(ii) Facilities covered by a
transfer agreement but not an
interagency agreement.--In the case of
a facility with respect to which there
is a transfer agreement but no
interagency agreement, if the State
does not concur in the remedial action
proposed for selection by the Federal
department, agency, or instrumentality,
the Federal department, agency, or
instrumentality and the State shall
engage in dispute resolution as
provided in paragraph (3)(B) under
which the final level for resolution of
the dispute shall be the head of the
Federal department, agency, or
instrumentality and the Governor of the
State.
(iii) Failure to resolve.--If no
agreement is reached between the head
of the Federal department, agency, or
instrumentality and the Governor in a
dispute resolution process under
clause (i) or (ii), the Governor of
the State shall make the final
determination regarding selection of a
remedial action. To compel
implementation of the State's selected
remedy, the State must bring a civil
action in United States district court.
(B) Enforcement.--
(i) Authority; jurisdiction.--An
interagency agreement with respect to
which there is a transfer agreement or
an order issued by a transferee State
shall be enforceable by a transferee
State or by the Federal department,
agency, or instrumentality that is a
party to the interagency agreement only
in the United States district court for
the district in which the facility is
located.
(ii) Timing.--In the case of a
facility with respect to a remedy is
eligible for review by a remedy review
board under section 134(e), an action
for enforcement under this paragraph
may not be brought until the remedy
review board submits its recommendation
to the Administrator.
(iii) Remedies.--The district court
shall--
(I) enforce compliance with
any provision, standard,
regulation, condition,
requirement, order, or final
determination that has become
effective under the interagency
agreement;
(II) impose any appropriate
civil penalty provided for any
violation of an interagency
agreement, not to exceed
$25,000 per day;
(III) compel implementation
of the selected remedial
action; and
(IV) review a challenge by
the Federal department, agency,
or instrumentality to the
remedial action selected by the
State under this section, in
accordance with section 113(j).
(h) Property Transferred by Federal Agencies.--
(1) Notice.--After the last day of the 6-month
period beginning on the effective date of regulations
under paragraph (2) of this subsection, whenever any
department, agency, or instrumentality of the United
States enters into any contract for the sale or other
transfer of real property which is owned by the United
States and on which any hazardous substance was stored
for one year or more, known to have been released, or
disposed of, the head of such department, agency, or
instrumentality shall include in such contract notice
of the type and quantity of such hazardous substance
and notice of the time at which such storage, release,
or disposal took place, to the extent such information
is available on the basis of a complete search of
agency files.
(2) Form of notice; regulations.--Notice under this
subsection shall be provided in such form and manner as
may be provided in regulations promulgated by the
Administrator. As promptly as practicable after the
enactment of this subsection but not later than 18
months after the date of such enactment, and after
consultation with the Administrator of the General
Services Administration, the Administrator shall
promulgate regulations regarding the notice required to
be provided under this subsection.
(3) Contents of certain deeds.--
(A) In general.--After the last day of the
6-month period beginning on the effective date
of regulations under paragraph (2) of this
subsection, in the case of any real property
owned by the United States on which any
hazardous substance was stored for one year or
more, known to have been released, or disposed
of, each deed entered into for the transfer of
such property by the United States to any other
person or entity shall contain--
(i) to the extent such information
is available on the basis of a complete
search of agency files--
(I) a notice of the type
and quantity of such hazardous
substances,
(II) notice of the time at
which such storage, release, or
disposal took place, and
(III) a description of the
remedial action taken, if any;
(ii) a covenant warranting that--
(I) all remedial action
necessary to protect human
health and the environment with
respect to any such substance
remaining on the property has
been taken before the date of
such transfer, and
(II) any additional
remedial action found to be
necessary after the date of
such transfer shall be
conducted by the United States;
and
(iii) a clause granting the United
States access to the property in any
case in which remedial action or
corrective action is found to be
necessary after the date of such
transfer.
(B) Covenant requirements.--For purposes of
subparagraphs (A)(ii)(I) and (C)(iii), all
remedial action described in such subparagraph
has been taken if the construction and
installation of an approved remedial design has
been completed, and the remedy has been
demonstrated to the Administrator to be
operating properly and successfully. The
carrying out of long-term pumping and treating,
or operation and maintenance, after the remedy
has been demonstrated to the Administrator to
be operating properly and successfully does not
preclude the transfer of the property. The
requirements of subparagraph (A)(ii) shall not
apply in any case in which the person or entity
to whom the real property is transferred is a
potentially responsible party with respect to
such property. The requirements of subparagraph
(A)(ii) shall not apply in any case in which
the transfer of the property occurs or has
occurred by means of a lease, without regard to
whether the lessee has agreed to purchase the
property or whether the duration of the lease
is longer than 55 years. In the case of a lease
entered into after September 30, 1995, with
respect to real property located at an
installation approved for closure or
realignment under a base closure law, the
agency leasing the property, in consultation
with the Administrator, shall determine before
leasing the property that the property is
suitable for lease, that the uses contemplated
for the lease are consistent with protection of
human health and the environment, and that
there are adequate assurances that the United
States will take all remedial action referred
to in subparagraph (A)(ii) that has not been
taken on the date of the lease.
(C) Deferral.--
(i) In general.--The Administrator,
with the concurrence of the Governor of
the State in which the facility is
located (in the case of real property
at a Federal facility that is listed on
the National Priorities List), or the
Governor of the State in which the
facility is located (in the case of
real property at a Federal facility not
listed on the National Priorities List)
may defer the requirement of
subparagraph (A)(ii)(I) with respect to
the property if the Administrator or
the Governor, as the case may be,
determines that the property is
suitable for transfer, based on a
finding that--
(I) the property is
suitable for transfer for the
use intended by the transferee,
and the intended use is
consistent with protection of
human health and the
environment;
(II) the deed or other
agreement proposed to govern
the transfer between the United
States and the transferee of
the property contains the
assurances set forth in clause
(ii);
(III) the Federal agency
requesting deferral has
provided notice, by publication
in a newspaper of general
circulation in the vicinity of
the property, of the proposed
transfer and of the opportunity
for the public to submit,
within a period of not less
than 30 days after the date of
the notice, written comments on
the suitability of the property
for transfer; and
(IV) the deferral and the
transfer of the property will
not substantially delay any
necessary response action at
the property.
(ii) Response action assurances.--
With regard to a release or threatened
release of a hazardous substance for
which a Federal agency is potentially
responsible under this section, the
deed or other agreement proposed to
govern the transfer shall contain
assurances that--
(I) provide for any
necessary restrictions on the
use of the property to ensure
the protection of human health
and the environment;
(II) provide that there
will be restrictions on use
necessary to ensure that
required remedial
investigations, response
action, and oversight
activities will not be
disrupted;
(III) provide that all
necessary response action will
be taken and identify the
schedules for investigation and
completion of all necessary
response action as approved by
the appropriate regulatory
agency; and
(IV) provide that the
Federal agency responsible for
the property subject to
transfer will submit a budget
request to the Director of the
Office of Management and Budget
that adequately addresses
schedules for investigation and
completion of all necessary
response action, subject to
congressional authorizations
and appropriations.
(iii) Warranty.--When all response
action necessary to protect human
health and the environment with respect
to any substance remaining on the
property on the date of transfer has
been taken, the United States shall
execute and deliver to the transferee
an appropriate document containing a
warranty that all such response action
has been taken, and the making of the
warranty shall be considered to satisfy
the requirement of subparagraph
(A)(ii)(I).
(iv) Federal responsibility.--A
deferral under this subparagraph shall
not increase, diminish, or affect in
any manner any rights or obligations of
a Federal agency (including any rights
or obligations under sections 106, 107,
and 120 existing prior to transfer)
with respect to a property transferred
under this subparagraph.
(4) Identification of uncontaminated property.--(A)
In the case of real property to which this paragraph
applies (as set forth in subparagraph (E)), the head of
the department, agency, or instrumentality of the
United States with jurisdiction over the property shall
identify the real property on which no hazardous
substances and no petroleum products or their
derivatives were known to have been released or
disposed of. Such identification shall be based on an
investigation of the real property to determine or
discover the obviousness of the presence or likely
presence of a release or threatened release of any
hazardous substance or any petroleum product or its
derivatives, including aviation fuel and motor oil, on
the real property. The identification shall consist, at
a minimum, of a review of each of the following sources
of information concerning the current and previous uses
of the real property:
(i) A detailed search of Federal Government
records pertaining to the property.
(ii) Recorded chain of title documents
regarding the real property.
(iii) Aerial photographs that may reflect
prior uses of the real property and that are
reasonably obtainable through State or local
government agencies.
(iv) A visual inspection of the real
property and any buildings, structures,
equipment, pipe, pipeline, or other
improvements on the real property, and a visual
inspection of properties immediately adjacent
to the real property.
(v) A physical inspection of property
adjacent to the real property, to the extent
permitted by owners or operators of such
property.
(vi) Reasonably obtainable Federal, State,
and local government records of each adjacent
facility where there has been a release of any
hazardous substance or any petroleum product or
its derivatives, including aviation fuel and
motor oil, and which is likely to cause or
contribute to a release or threatened release
of any hazardous substance or any petroleum
product or its derivatives, including aviation
fuel and motor oil, on the real property.
(vii) Interviews with current or former
employees involved in operations on the real
property.
Such identification shall also be based on sampling, if
appropriate under the circumstances. The results of the
identification shall be provided immediately to the
Administrator and State and local government officials
and made available to the public.
(B) The identification required under subparagraph
(A) is not complete until concurrence in the results of
the identification is obtained, in the case of real
property that is part of a facility on the National
Priorities List, from the Administrator, or, in the
case of real property that is not part of a facility on
the National Priorities List, from the appropriate
State official. In the case of a concurrence which is
required from a State official, the concurrence is
deemed to be obtained if, within 90 days after
receiving a request for the concurrence, the State
official has not acted (by either concurring or
declining to concur) on the request for concurrence.
(C)(i) Except as provided in clauses (ii), (iii),
and (iv), the identification and concurrence required
under subparagraphs (A) and (B), respectively, shall be
made at least 6 months before the termination of
operations on the real property.
(ii) In the case of real property described in
subparagraph (E)(i)(II) on which operations have been
closed or realigned or scheduled for closure or
realignment pursuant to a base closure law described in
subparagraph (E)(ii)(I) or (E)(ii)(II) by the date of
the enactment of the Community Environmental Response
Facilitation Act, the identification and concurrence
required under subparagraphs (A) and (B), respectively,
shall be made not later than 18 months after such date
of enactment.
(iii) In the case of real property described in
subparagraph (E)(i)(II) on which operations are closed
or realigned or become scheduled for closure or
realignment pursuant to the base closure law described
in subparagraph (E)(ii)(II) after the date of the
enactment of the Community Environmental Response
Facilitation Act, the identification and concurrence
required under subparagraphs (A) and (B), respectively,
shall be made not later than 18 months after the date
by which a joint resolution disapproving the closure or
realignment of the real property under section 2904(b)
of such base closure law must be enacted, and such a
joint resolution has not been enacted.
(iv) In the case of real property described in
subparagraphs (E)(i)(II) on which operations are closed
or realigned pursuant to a base closure law described
in subparagraph (E)(ii)(III) or (E)(ii)(IV), the
identification and concurrence required under
subparagraphs (A) and (B), respectively, shall be made
not later than 18 months after the date on which the
real property is selected for closure or realignment
pursuant to such a base closure law.
(D) In the case of the sale or other transfer of
any parcel of real property identified under
subparagraph (A), the deed entered into for the sale or
transfer of such property by the United States to any
other person or entity shall contain--
(i) a covenant warranting that any response
action or corrective action found to be
necessary after the date of such sale or
transfer shall be conducted by the United
States; and
(ii) a clause granting the United States
access to the property in any case in which a
response action or corrective action is found
to be necessary after such date at such
property, or such access is necessary to carry
out a response action or corrective action on
adjoining property.
(E)(i) This paragraph applies to--
(I) real property owned by the United
States and on which the United States plans to
terminate Federal Government operations, other
than real property described in subclause (II);
and
(II) real property that is or has been used
as a military installation and on which the
United States plans to close or realign
military operations pursuant to a base closure
law.
(ii) For purposes of this paragraph, the term
``base closure law'' includes the following:
(I) Title II of the Defense Authorization
Amendments and Base Closure and Realignment Act
(Public Law 100-526; 10 U.S.C. 2687 note).
(II) The Defense Base Closure and
Realignment Act of 1990 (part A of title XXIX
of Public Law 101-510; 10 U.S.C. 2687 note).
(III) Section 2687 of title 10, United
States Code.
(IV) Any provision of law authorizing the
closure or realignment of a military
installation enacted on or after the date of
enactment of the Community Environmental
Response Facilitation Act.
(F) Nothing in this paragraph shall affect,
preclude, or otherwise impair the termination of
Federal Government operations on real property owned by
the United States.
(5) Notification of states regarding certain
leases.--In the case of real property owned by the
United States, on which any hazardous substance or any
petroleum product or its derivatives (including
aviation fuel and motor oil) was stored for one year or
more, known to have been released, or disposed of, and
on which the United States plans to terminate Federal
Government operations, the head of the department,
agency, or instrumentality of the United States with
jurisdiction over the property shall notify the State
in which the property is located of any lease entered
into by the United States that will encumber the
property beyond the date of termination of operations
on the property. Such notification shall be made before
entering into the lease and shall include the length of
the lease, the name of person to whom the property is
leased, and a description of the uses that will be
allowed under the lease of the property and buildings
and other structures on the property.
(i) Obligations Under Solid Waste Disposal Act.--Nothing
in this section shall affect or impair the obligation of any
department, agency, or instrumentality of the United States to
comply with any requirement of the Solid Waste Disposal Act
(including corrective action requirements).
(j) National Security.--
(1) Site specific presidential orders.--The
President may issue such orders regarding response
actions at any specified site or facility of the
Department of Energy or the Department of Defense as
may be necessary to protect the national security
interests of the United States at that site or
facility. Such orders may include, where necessary to
protect such interests, an exemption from any
requirement contained in this title or under title III
of the Superfund Amendments and Reauthorization Act of
1986 with respect to the site or facility concerned.
The President shall notify the Congress within 30 days
of the issuance of an order under this paragraph
providing for any such exemption. Such notification
shall include a statement of the reasons for the
granting of the exemption. An exemption under this
paragraph shall be for a specified period which may not
exceed one year. Additional exemptions may be granted,
each upon the President's issuance of a new order under
this paragraph for the site or facility concerned. Each
such additional exemption shall be for a specified
period which may not exceed one year. It is the
intention of the Congress that whenever an exemption is
issued under this paragraph the response action shall
proceed as expeditiously as practicable. The Congress
shall be notified periodically of the progress of any
response action with respect to which an exemption has
been issued under this paragraph. No exemption shall be
granted under this paragraph due to lack of
appropriation unless the President shall have
specifically requested such appropriation as a part of
the budgetary process and the Congress shall have
failed to make available such requested appropriation.
(2) Classified information.--Notwithstanding any
other provision of law, all requirements of the Atomic
Energy Act and all Executive orders concerning the
handling of restricted data and national security
information, including ``need to know'' requirements,
shall be applicable to any grant of access to
classified information under the provisions of this Act
or under title III of the Superfund Amendments and
Reauthorization Act of 1986.
(k) Presentation of Materials.--The President shall
ensure that information prepared for or distributed to the
public under this section shall be provided or summarized in a
manner that may be easily understood by the community,
considering any unique cultural needs of the community.
(l) No Impediment to Response Actions.--Nothing in this
section shall impede or delay the ability of the Environmental
Protection Agency to conduct a response action necessary to
protect human health and the environment.
[42 U.S.C. 9620]
[SEC. 121. CLEANUP STANDARDS.\62\
[(a) Selection of Remedial Action.--The President shall
select appropriate remedial actions determined to be necessary
to be carried out under section 104 or secured under section
106 which are in accordance with this section and, to the
extent practicable, the national contingency plan, and which
provide for cost-effective response. In evaluating the cost-
effectiveness of proposed alternative remedial actions, the
President shall take into account the total short- and long-
term costs of such actions, including the costs of operation
and maintenance for the entire period during which such
activities will be required.
---------------------------------------------------------------------------
\62\ [Section 121(b) of the Superfund Amendments and
Reauthorization Act of 1986 (P.L. 99-499) provides:
[(b) Effective Date.--With respect to section 121 of CERCLA, as
added by this section--
---------------------------------------------------------------------------
[(1) The requirements of section 121 of CERCLA shall not
apply to any remedial action for which the Record of Decision
(hereinafter in this section referred to as the ``ROD'') was
signed, or the consent decree was lodged, before date of
enactment [October 17, 1986].
[(2) If the ROD was signed, or the consent decree lodged,
within the 30-day period immediately following enactment of the
Act, the Administrator shall certify in writing that the
portion of the remedial action covered by the ROD or consent
decree complies to the maximum extent practicable with section
121 of CERCLA.
[Any ROD signed before enactment of this Act and reopened after
enactment of this Act to modify or supplement the selection of remedy
shall be subject to the requirements of section 121 of CERCLA.
[(b) General Rules.--(1) Remedial actions in which
treatment which permanently and significantly reduces the
volume, toxicity or mobility of the hazardous substances,
pollutants, and contaminants is a principal element, are to be
preferred over remedial actions not involving such treatment.
The offsite transport and disposal of hazardous substances or
contaminated materials without such treatment should be the
least favored alternative remedial action where practicable
treatment technologies are available. The President shall
conduct an assessment of permanent solutions and alternative
treatment technologies or resource recovery technologies that,
in whole or in part, will result in a permanent and significant
decrease in the toxicity, mobility, or volume of the hazardous
substance, pollutant, or contaminant. In making such
assessment, the President shall specifically address the long-
term effectiveness of various alternatives. In assessing
alternative remedial actions, the President shall, at a
minimum, take into account:
[(A) the long-term uncertainties associated with
land disposal;
[(B) the goals, objectives, and requirements of the
Solid Waste Disposal Act;
[(C) the persistence, toxicity, mobility, and
propensity to bioaccumulate of such hazardous
substances and their constituents;
[(D) short- and long-term potential for adverse
health effects from human exposure;
[(E) long-term maintenance costs;
[(F) the potential for future remedial action costs
if the alternative remedial action in question were to
fail; and
[(G) the potential threat to human health and the
environment associated with excavation, transportation,
and redisposal, or containment.
[The President shall select a remedial action that is
protective of human health and the environment, that is cost-
effective, and that utilizes permanent solutions and
alternative treatment technologies or resource recovery
technologies to the maximum extent practicable. If the
President selects a remedial action not appropriate for a
preference under this subsection, the President shall publish
an explanation as to why a remedial action involving such
reductions was not selected.
[(2) The President may select an alternative remedial
action meeting the objectives of this subsection whether or not
such action has been achieved in practice at any other facility
or site that has similar characteristics. In making such a
selection, the President may take into account the degree of
support for such remedial action by parties interested in such
site.]
SEC. 121. SELECTION AND IMPLEMENTATION OF REMEDIAL ACTIONS.
(a) General Rules.--
(1) Selection of cost-effective remedial action
that protects human health and the environment.--
(A) In general.--The President shall select
a cost-effective remedial action that achieves
the mandate to protect human health and the
environment as stated in subparagraph (B) and
attains or complies with applicable Federal and
State laws in accordance with subparagraph (C).
(B) Attainment of mandate to protect human
health and the environment.--
(i) Protection of human health.--
Notwithstanding any other provision of
this Act, a remedial action shall
protect human health (including the
health of children and other highly
exposed or highly susceptible
subpopulations). A remedial action
shall be considered to protect human
health if, considering the expected
exposures associated with the current
or reasonably anticipated future use of
the land and water resources and on the
basis of a facility-specific risk
evaluation in accordance with section
131, the remedial action--
(I) achieves a residual
risk from exposure to
nonthreshold carcinogenic
hazardous substances,
pollutants, or contaminants
such that cumulative lifetime
additional cancer risk from
exposure to hazardous
substances, pollutants, or
contaminants from releases at
the facility range from
10-4 to
10-6 for the
affected population;
(II) achieves a residual
risk from exposure to threshold
carcinogenic and
noncarcinogenic hazardous
substances, pollutants, or
contaminants at the facility,
that does not exceed a hazard
index of 1; and
(III) prevents or
eliminates any actual human
ingestion of drinking water
containing any hazardous
substance from the release at
levels--
(aa) in excess of
the maximum contaminant
level established under
the Safe Drinking Water
Act (42 U.S.C. 300f et
seq.); or
(bb) if no such
maximum contaminant
level has been
established for the
hazardous substance, at
levels that meet the
goals for protection of
human health under
clause (i).
(ii) Protection of the
environment.--
(I) In general.--A remedial
action for a facility shall be
considered to be protective of
the environment if, considering
the current or reasonably
anticipated use of any land and
water resources, the remedial
action protects plants and
animals from significant
impacts resulting from releases
of hazardous substances at the
facility.
(II) Protectiveness
determination.--The
determination under subclause
(I) of what is protective of
plants and animals shall not be
based on the impact to an
individual plant or animal in
the absence of an impact at the
population, community, or
ecosystem level, unless the
plant or animal is listed as a
threatened or endangered
species under the Endangered
Species Act of 1973 (16 U.S.C.
1531 et seq.).
(C) Compliance with federal and state
laws.--
(i) Applicable requirements.--
(I) In general.--Subject to
clause (iii), a remedial action
shall require, at the
completion of the remedial
action, a level or standard of
control for each hazardous
substance, pollutant, and
contaminant that at least
attains the substantive
requirements of all promulgated
standards, requirements,
criteria, and limitations,
under--
(aa) each Federal
environmental law, that
are legally applicable
to the conduct or
operation of the
remedial action or to
the level of cleanup
for hazardous
substances, pollutants,
or contaminants
addressed by the
remedial action;
(bb) any State
environmental or
facility siting law,
that are more stringent
than any Federal
standard, requirement,
criterion, or
limitation and are
legally applicable to
the conduct or
operation of the
remedial action or to
the level of cleanup
for hazardous
substances, pollutants,
or contaminants
addressed by the
remedial action, and
that the State
demonstrates are of
general applicability,
publishes and
identifies to the
President in a timely
manner as being
applicable to the
remedial action, and
has consistently
applied to other
remedial actions in the
State; and
(cc) any more
stringent standard,
requirement, criterion,
or limitation relating
to an environmental or
facility siting law
promulgated by the
State after the date of
enactment of the
Superfund Cleanup
Acceleration Act of
1998 that the State
demonstrates are of
general applicability,
publishes and
identifies to the
President in a timely
manner as being
applicable to the
remedial action, and
has consistently
applied to other
remedial actions in the
State.
(II) Contaminated media.--
Compliance with substantive
provisions of section 3004 of
the Solid Waste Disposal Act
(42 U.S.C. 6924) shall not be
required with respect to
return, replacement, or
disposal of contaminated media
(including residuals of
contaminated media and other
solid wastes generated onsite
in the conduct of a remedial
action) into the same media in
or very near then-existing
areas of contamination onsite
at a facility.
(ii) Applicability of requirements
to response actions conducted onsite.--
No procedural or administrative
requirement of any Federal, State, or
local law (including any requirement
for a permit) shall apply to a response
action that is conducted onsite at a
facility if the response action is
selected and carried out in compliance
with this section.
(iii) Waiver provisions.--
(I) In general.--The
President may select a remedial
action at a facility that meets
the requirements of
subparagraph (B) that does not
attain a level or standard of
control that is at least
equivalent to an applicable
requirement described in clause
(i)(I) if the President makes
any of the following findings:
(aa) Part of
remedial action.--The
selected remedial
action is only part of
a total remedial action
that will attain the
applicable requirements
of clause (i)(I) when
the total remedial
action is completed.
(bb) Greater
risk.--Attainment of
the requirements of
clause (i)(I) will
result in greater risk
to human health or the
environment than
alternative options.
(cc) Technical
impracticability.--
Attainment of the
requirements of clause
(i)(I) is technically
impracticable.
(dd) Equivalent to
standard of
performance.--The
selected remedial
action will attain a
standard of performance
that is equivalent to
that required under
clause (i)(I) through
use of another method
or approach.
(ee) Inconsistent
application.--With
respect to a State
requirement made
applicable under clause
(i)(I), the State has
not consistently
applied (or
demonstrated the
intention to apply
consistently) the
requirement in similar
circumstances to other
remedial actions in the
State.
(ff) Balance.--In
the case of a remedial
action to be funded
predominantly under
section 104 or 137
using amounts from the
Fund, a selection of a
remedial action that
attains that level or
standard of control
described in clause
(i)(I) will not provide
a balance between the
need for protection of
public health and
welfare and the
environment at the
facility, and the need
to make amounts from
the Fund available to
respond to other
facilities that may
present a threat to
public health or
welfare or the
environment, taking
into consideration the
relative immediacy of
the threats presented
by the various
facilities.
(II) Publication.--The
President shall publish any
findings made under subclause
(I), including an explanation
and appropriate documentation
and an explanation of how the
selected remedial action meets
the requirements of section
121.
(D) No standard.--If no applicable Federal
or State standard has been established for a
specific hazardous substance, pollutant, or
contaminant, a remedial action shall attain a
standard that the President determines to be
protective of human health and the environment
as stated in subsection (a)(1)(B).
(2) Methodology for selection of a remedial
action.--The President shall select a remedial action
from among a range of alternative remedial actions that
satisfy the requirements of paragraph (1) by balancing
the criteria stated in paragraph (3). The President''s
selection of a remedial action under this section shall
take into account the remedy selection rules stated in
subsection (b).
(3) Remedy selection criteria.--In selecting a
remedial action from among alternatives that satisfy
the requirements of subsection (a)(1) and take into
account the rules stated in subsection (b), the
President shall balance the following factors, ensuring
that no single factor predominates over the others:
(A) The effectiveness of the remedy in
ensuring the protection of human health
(including the health of children and other
highly exposed or highly susceptible
subpopulations) and the environment.
(B) The reliability of the remedial action
in achieving the protectiveness standards over
the long term.
(C) Any short-term risk to the affected
community, those engaged in the remedial action
effort, and to the environment posed by the
implementation of the remedial action.
(D) The acceptability of the remedial
action to the affected community.
(E) The implementability of the remedial
action.
(F) The reasonableness of the cost.
(4) Coordination.--In evaluating and selecting
remedial actions, the President shall take into account
the potential for injury to a natural resource
resulting from such actions.
(b) Remedy Selection Rules.--
(1) Reasonably anticipated future use of land and
water resources.--
(A) In general.--In selecting a response
action for a facility, the President shall take
into account the reasonably anticipated future
use of land and water resources potentially
affected by the release or threat of release of
a hazardous substance, pollutant, or
contaminant from the facility.
(B) Use of land resources.--
(i) Consideration of views.--In
developing assumptions regarding
reasonably anticipated future land uses
to be used in developing and evaluating
remedial alternatives, the President
shall consider the views of--
(I) local government
officials; and
(II) members of the
affected community,
particularly persons who are
immediately proximate to or may
be directly affected by the
release or threatened release
of a hazardous substance,
pollutant, or contaminant from
the facility.
(ii) Factors to be considered.--In
developing assumptions regarding
reasonably anticipated future land use
to be used in developing and evaluating
remedial alternatives, the President
shall consider, in addition to views of
persons described in clause (i),
factors including the following:
(I) The current land use
zoning and future land use
plans of the local government
with land use regulatory
authority.
(II)(aa) The recent land
use history of the facility and
properties in the vicinity of
the facility.
(bb) The current land uses
of the facility and properties
in the vicinity of the
facility.
(cc) Recent development
patterns in the area where the
facility is located.
(dd) Population projections
for the area where the facility
is located.
(III) Federal and State
land use designations,
including--
(aa) Federal
facility and national
park designations;
(bb) State ground
water or surface water
recharge area
designations
established under a
State''s comprehensive
protection plan for
ground water or surface
water; and
(cc) recreational
and conservation area
designations.
(IV) The potential for
beneficial use.
(V) The proximity of the
contamination to residences,
natural resources, or areas of
unique historic or cultural
significance.
(VI) The plans of the owner
or operator of the facility.
(C) Use of water resources.--In developing
assumptions regarding what future ground water
and surface water uses may be reasonably
anticipated, the President shall--
(i) consider and accord substantial
deference to the classifications and
designations set forth in a State
comprehensive ground water protection
program that has been endorsed by the
Administrator; and
(ii) consider other designations or
plans adopted by the governmental unit
that regulates surface or ground water
use planning in the vicinity of the
facility, including a State''s
designation of uses under the
underground injection control program
or a State classification guideline.
(D) Administrative records.--All
information on which the President bases the
development of assumptions under this paragraph
shall be included in the administrative record
established under section 113(k).
(2) Ground water.--
(A) In general.--
(i) Selection of remedial action.--
The President shall select a remedial
action for contaminated ground water in
accordance with subsection (a), as
modified by the requirements of this
paragraph.
(ii) Phasing.--The use of phasing
shall be considered in a remedial
action for ground water in order to
allow collection of sufficient data to
evaluate the effect of any other
remedial action taken at the site and
to determine the appropriate scope of
the remedial action.
(iii) Factors to be taken into
account.--A decision regarding a
remedial action for contaminated ground
water shall take into account--
(I) the current or
reasonably anticipated future
use of the ground water and the
timing of that use;
(II) any attenuation or
biodegradation that would occur
if no remedial action were
taken; and
(III) the effect of any
other completed or planned
response action.
(B) Uncontaminated ground water.--Subject
to subparagraph (E), a remedial action shall
seek to protect uncontaminated ground water
that is suitable for use as drinking water for
such beneficial use unless it is technically
impracticable to do so.
(C) Contaminated ground water.--
(i) In general.--In the case of
contaminated ground water for which the
current or reasonably anticipated
future use of the resource is as
drinking water, unless the President
determines that restoration of some
portion of the contaminated ground
water to a condition suitable for the
use is technically impracticable, the
President shall restore the ground
water to a condition suitable for
beneficial use.
(ii) Evaluation of technical
practicability.--In evaluating the
technical practicability of restoration
and the time frame in which restoration
can be achieved, the President may
distinguish among 2 or more zones of
ground water contamination at a
facility and may select a remedial
action that includes different actions,
points of compliance, and time frames
tailored to the circumstances of each
such zone.
(iii) Integration of actions.--
Actions taken in any zone shall be
integrated with actions taken, points
of compliance, and time frames selected
in other zones.
(iv) Remedial action standards.--A
remedial action for contaminated ground
water the current or reasonably
anticipated future use of which is
drinking water shall, unless
technically impracticable, attain in
the contaminated ground water plume,
extending to the boundary of any
hazardous substance, pollutant, or
contaminant that will be managed in
place as part of the remedial action, 1
of the following standards (provided
that the standard is no more stringent
than the naturally occurring background
levels of the contaminants in the
surrounding area):
(I) Maximum contaminant
levels established under the
Safe Drinking Water Act (42
U.S.C. 300f et seq.), unless a
standard under subclause (II)
would be more stringent.
(II) State drinking water
standards or State water
quality standards for water
designated for drinking water
use.
(III) If no standard under
subclause (I) or (II) is
applicable, a level selected in
accordance with subsection
(a)(1)(D) and section 131 that
is protective of human health
and the environment.
(v) Contaminants managed in
place.--Restoration to beneficial use
and the standards under clause (iv) are
not required to be attained in an area
in which any hazardous substance,
pollutant, or contaminant is managed in
place.
(vi) Not a potential source of
drinking water.--In the case of
contaminated ground water or surface
water that is not suitable for
beneficial use as drinking water (as
determined under subparagraph (F)), a
remedial action shall, unless it is
technically impracticable for it to do
so, attain a standard that is
protective for the current or
reasonably anticipated future uses of
the water and any surface water to
which the contaminated water
discharges.
(vii) Restoration technically
impracticable.--
(I) In general.--A remedial
action for contaminated ground
water having current or
reasonably anticipated future
use as a drinking water source
for which attainment of the
levels described in clause (iv)
is technically impracticable
shall be selected in accordance
with this clause.
(II) No ingestion.--A
remedial action shall include,
as appropriate, provision of an
alternate water supply, point-
of-entry, or point-of-use
treatment or other measures to
ensure that there will be no
ingestion of or exposure of
humans to drinking water at
levels exceeding the
requirements of subparagraph
(C)(iv).
(III) Prevention of
impairment of designated
surface water use.--A remedial
action shall, unless it is
technically impracticable for
it to do so, prevent impairment
of any designated surface water
use established under section
303 of the Federal Water
Pollution Control Act (42
U.S.C. 1313) or comparable
State law caused by a hazardous
substance, pollutant, or
contaminant in any surface
water into which contaminated
ground water is known or
expected to enter.
(IV) Provision for long-
term monitoring.--A remedial
action shall provide for long-
term monitoring, as appropriate
(including any information
needed for the purposes of
review under subsection (c)).
(V) Responsibility of
parties.--If the President
selects point-of-entry or
point-of-use treatment, an
alternative source of water
supply, or another method of
treating contaminated water
(including treatment before
distribution), the party or
parties otherwise responsible
for remediation shall be
responsible for providing
drinking water meeting the
requirements of clause (iv),
including all directly
associated incremental costs
for operation and maintenance
and for delivery of drinking
water for current and
reasonably anticipated future
uses until such time as the
level of contamination is
reliably and consistently at or
below the levels specified
under clause (iv).
(D) Monitored natural attenuation.--
(i) In general.--Monitored natural
attenuation may be used as an element
of a remedial action for contaminated
ground water.
(ii) Factors to be taken into
account.--In using monitored natural
attenuation as part of a ground water
action, the President or preparer of
the remedial action plan shall take
into account the factors listed in
subparagraph (A) (iii).
(E) Alternate concentration limits for
contaminated ground water.--For the purposes of
this section, a process for establishing
alternate concentration limits to those
otherwise applicable for hazardous substances,
pollutants, or contaminants under subparagraph
(C)(iv) may not be used to establish standards
under this paragraph if the process assumes a
point of human exposure beyond the boundary of
the facility, as defined at the conclusion of
the remedial investigation and feasibility
study, except that where--
(i) there are known and projected
points of entry of ground water into
surface water; and
(ii) on the basis of measurements
or projections, there is and will be no
impairment of the designated use
established under section 303 of the
Federal Water Pollution Control Act (42
U.S.C. 1313) from ground water in such
surface water at the point of entry or
at any point where there is reason to
believe accumulation of constituents
may occur downstream; and
(iii) the remedial action includes
enforceable measures that will preclude
human exposure to the contaminated
ground water at any point between the
facility boundary and all known and
projected points of entry of such
ground water into surface water;
the assumed point of human exposure may be at
such known and projected points of entry.
(F) Ground water not suitable for
beneficial use as drinking water.--
Notwithstanding any other evaluation or
determination regarding the suitability of
ground water for drinking water use, ground
water that is not suitable for use as drinking
water because of--
(i) naturally occurring conditions;
(ii) contamination resulting from
broad-scale human activity unrelated to
a specific facility or release that
restoration of drinking water quality
is technically impracticable; or
(iii) physical incapability of
yielding a quantity of 150 gallons per
day of water to a well or spring
(unless the well or spring is currently
being used as a source of drinking
water);
shall not be considered as suitable for
beneficial use as drinking water.
(3) Preference for treatment.--
(A) In general.--For any discrete area
containing a hazardous substance, pollutant, or
contaminant that--
(i) cannot be reliably contained;
and
(ii) presents a substantial risk to
human health and the environment
because of--
(I) the high toxicity of
the hazardous substance,
pollutant, or contaminant;
(II) the high mobility of
the hazardous substance,
pollutant, or contaminant; and
(III) a reasonable
probability of actual exposure
based upon an evaluation of
site-specific factors;
the remedy selection process described in
subsection (a) shall include a preference for a
remedial action that includes treatment that
reduces the risk posed by the nature and
probability of exposure to the hazardous
substance, pollutant, or contaminant over
remedial actions that do not include such
treatment.
(B) Final containment.--With respect to a
discrete area described in subparagraph (A),
the President may select a final containment
remedy at a landfill or mining site or similar
facility if--
(i)(I) the discrete area is small
relative to the overall volume of waste
or contamination being addressed;
(II) the discrete area is not
readily identifiable and accessible;
and
(III) without the presence of the
discrete area, containment would have
been selected as the appropriate remedy
under this subsection for the larger
body of waste or larger area of
contamination in which the discrete
area is located; or
(ii) the volume and size of the
discrete area is extraordinary compared
to other facilities listed on the
National Priorities List, and, because
of the volume, size, and other
characteristics of the discrete area,
it is highly unlikely that any
treatment technology will be developed
that could be implemented at a
reasonable cost.
(4) Institutional and engineering controls.--
(A) Definition of institutional control.--
In this paragraph, the term ``institutional
control'' means a restriction on the
permissible use of land, ground water, or
surface water, included as part of the basis of
decision in a final record of decision or any
other enforceable decision document for a
facility on the National Priorities List, to
comply with the requirements of section 121(a)
to protect human health and the environment,
including--
(i) a zoning restriction or future
land use plan of the local government
with land use regulatory authority;
(ii) a contaminated ground water
management zone or permit program of
the government unit that regulates
ground water;
(iii) site acquisition under
paragraph (1) or (2) of section 104(j)
by the Administrator or the State to
control access to the facility;
(iv) an easement or deed
restriction precluding or limiting
specific uses of the facility; and
(v) a notice, advisory, or alert to
warn of a public health threat from
contaminated ground water or from
eating fish from contaminated surface
water.
(B) Uses.--The Administrator may not select
a remedial action that allows a hazardous
substance, pollutant, or contaminant to remain
at a facility above a level that would be
protective for unrestricted use unless
institutional and engineering controls are
incorporated into the remedial action to ensure
protection of human health and the environment
during and after completion of the remedial
action.
(C) Requirements for institutional
controls.--In a case in which the Administrator
selects a response action that relies in whole
or in part on restrictions on land use or other
resources or activities, the Administrator
shall ensure that institutional controls--
(i) are adequate to protect human
health and the environment;
(ii) ensure the long-term
reliability of the response action; and
(iii) will be appropriately
implemented, monitored, and enforced.
(D) Record of decision.--Each record of
decision with respect to a facility shall
clearly identify any institutional controls
that restrict uses of land or other resources
or activities at the facility.
(E) Registry.--The Administrator shall
maintain a registry of institutional controls
that--
(i) place restrictions on the use
of land, water, or other resources; and
(ii) are included as part of the
basis of decision in a final record of
decision or any other enforceable
decision document with respect to a
facility on the National Priorities
List.
(5) Technical impracticability.--
(A) Minimization of risk.--If the
President, after reviewing the remedy selection
methodology stated in subsection (a)(2), finds
that complying with or attaining a standard
required by subparagraph (C) or (D) of
subsection (a)(1), or, if applicable, by a rule
stated in subsection (b), is technically
impracticable, the President shall evaluate
remedial measures and select a technically
practicable remedial action that--
(i) protects human health (as
defined in subsection (a)(1)(B)(i));
and
(ii) will most closely achieve the
goals stated in paragraph (1) through
cost-effective means.
(B) Basis for finding.--A finding of
technical impracticability may be made on the
basis of projections, modeling, or other
analysis on a site-specific basis.
(C) Prompt determination.--The President
shall make a determination of technical
impracticability as soon as the President
determines that sufficient information is
available to make the determination.
(D) Process.--
(i) Determination of necessity of
compliance with standard or
requirement.--The President shall
evaluate and determine if it is not
appropriate for a remedial action to
attain or comply with a required
standard under subparagraphs (C) and
(D) of subsection (a)(1), or, where
applicable, with a requirement stated
in a rule in subsection (b).
(ii) Waiver on the basis of
technical impracticability.--A finding
that it is technically impracticable to
attain or comply with an applicable
Federal or State law under subsection
(a)(1)(C)(i)(I) shall constitute a
waiver under subsection (a)(1)(C)(iii).
(iii) Initiation of review.--The
President may initiate a review to
determine whether a finding of
technical impracticability is
appropriate on the Administrator''s own
initiative or on the request of a
person that is conducting a remedial
action, if the request is supported by
appropriate documentation.
(E) Notice of finding.--If the President
makes a finding of technical impracticability,
the President shall publish the finding,
accompanied by--
(i) an explanation of the finding,
with appropriate justification; and
(ii) an explanation of how the
selected remedial action meets the
requirements of subsection (a)(1)(B).
(c) Review.--If the President selects a remedial action
that results in any hazardous substances, pollutants, or
contaminants remaining at the site, the President shall review
such remedial action no less often than each 5 years after the
initiation of such remedial action, including public health
recommendations and decisions resulting from activities under
section 104(i), to assure that human health and the environment
are being protected by the remedial action being implemented.
In addition, if upon such review it is the judgment of the
President that action is appropriate at such site in accordance
with section 104 or 106, the President shall take or require
such action. The President shall report to the Congress a list
of facilities for which such review is required, the results of
all such reviews, and any actions taken as a result of such
reviews.
[(d) Degree of Cleanup.--(1) Remedial actions selected
under this section or otherwise required or agreed to by the
President under this Act shall attain a degree of cleanup of
hazardous substances, pollutants, and contaminants released
into the environment and of control of further release at a
minimum which assures protection of human health and the
environment. Such remedial actions shall be relevant and
appropriate under the circumstances presented by the release or
threatened release of such substance, pollutant, or
contaminant.
[(2)(A) With respect to any hazardous substance, pollutant
or contaminant that will remain onsite, if--
[(i) any standard, requirement, criteria, or
limitation under any Federal environmental law,
including, but not limited to, the Toxic Substances
Control Act, the Safe Drinking Water Act, the Clean Air
Act, the Clean Water Act, the Marine Protection,
Research and Sanctuaries Act, or the Solid Waste
Disposal Act; or
[(ii) any promulgated standard, requirement,
criteria, or limitation under a State environmental or
facility siting law that is more stringent than any
Federal standard, requirement, criteria, or limitation,
including each such State standard, requirement,
criteria, or limitation contained in a program
approved, authorized or delegated by the Administrator
under a statute cited in subparagraph (A), and that has
been identified to the President by the State in a
timely manner,
[is legally applicable to the hazardous substance or pollutant
or contaminant concerned or is relevant and appropriate under
the circumstances of the release or threatened release of such
hazardous substance or pollutant or contaminant, the remedial
action selected under section 104 or secured under section 106
shall require, at the completion of the remedial action, a
level or standard of control for such hazardous substance or
pollutant or contaminant which at least attains such legally
applicable or relevant and appropriate standard, requirement,
criteria, or limitation. Such remedial action shall require a
level or standard of control which at least attains Maximum
Contaminant Level Goals established under the Safe Drinking
Water Act and water quality criteria established under section
304 or 303 of the Clean Water Act, where such goals or criteria
are relevant and appropriate under the circumstances of the
release or threatened release.
[(B)(i) In determining whether or not any water quality
criteria under the Clean Water Act is relevant and appropriate
under the circumstances of the release or threatened release,
the President shall consider the designated or potential use of
the surface or groundwater, the environmental media affected,
the purposes for which such criteria were developed, and the
latest information available.
[(ii) For the purposes of this section, a process for
establishing alternate concentration limits to those otherwise
applicable for hazardous constituents in groundwater under
subparagraph (A) may not be used to establish applicable
standards under this paragraph if the process assumes a point
of human exposure beyond the boundary of the facility, as
defined at the conclusion of the remedial investigation and
feasibility study, except where--
[(I) there are known and projected points of entry
of such groundwater into surface water; and
[(II) on the basis of measurements or projections,
there is or will be no statistically significant
increase of such constituents from such groundwater in
such surface water at the point of entry or at any
point where there is reason to believe accumulation of
constituents may occur downstream; and
[(III) the remedial action includes enforceable
measures that will preclude human exposure to the
contaminated groundwater at any point between the
facility boundary and all known and projected points of
entry of such groundwater into surface water
[then the assumed point of human exposure may be at such known
and projected points of entry.
[(C)(i) Clause (ii) of this subparagraph shall be
applicable only in cases where, due to the President's
selection, in compliance with subsection (b)(1), of a proposed
remedial action which does not permanently and significantly
reduce the volume, toxicity, or mobility of hazardous
substances, pollutants, or contaminants, the proposed
disposition of waste generated by or associated with the
remedial action selected by the President is land disposal in a
State referred to in clause (ii).
[(ii) Except as provided in clauses (iii) and (iv), a State
standard, requirement, criteria, or limitation (including any
State siting standard or requirement) which could effectively
result in the statewide prohibition of land disposal of
hazardous substances, pollutants, or contaminants shall not
apply.
[(iii) Any State standard, requirement, criteria, or
limitation referred to in clause (ii) shall apply where each of
the following conditions is met:
[(I) The State standard, requirement, criteria, or
limitation is of general applicability and was adopted
by formal means.
[(II) The State standard, requirement, criteria, or
limitation was adopted on the basis of hydrologic,
geologic, or other relevant considerations and was not
adopted for the purpose of precluding onsite remedial
actions or other land disposal for reasons unrelated to
protection of human health and the environment.
[(III) The State arranges for, and assures payment
of the incremental costs of utilizing, a facility for
disposition of the hazardous substances, pollutants, or
contaminants concerned.
[(iv) Where the remedial action selected by the President
does not conform to a State standard and the State has
initiated a law suit against the Environmental Protection
Agency prior to May 1, 1986, to seek to have the remedial
action conform to such standard, the President shall conform
the remedial action to the State standard. The State shall
assure the availability of an offsite facility for such
remedial action.
[(3) In the case of any removal or remedial action
involving the transfer of any hazardous substance or pollutant
or contaminant offsite, such hazardous substance or pollutant
or contaminant shall only be transferred to a facility which is
operating in compliance with section 3004 and 3005 of the Solid
Waste Disposal Act (or, where applicable, in compliance with
the Toxic Substances Control Act or other applicable Federal
law) and all applicable State requirements. Such substance or
pollutant or contaminant may be transferred to a land disposal
facility only if the President determines that both of the
following requirements are met:
[(A) The unit to which the hazardous substance or
pollutant or contaminant is transferred is not
releasing any hazardous waste, or constituent thereof,
into the groundwater or surface water or soil.
[(B) All such releases from other units at the
facility are being controlled by a corrective action
program approved by the Administrator under subtitle C
of the Solid Waste Disposal Act.
[The President shall notify the owner or operator of such
facility of determinations under this paragraph.
[(4) The President may select a remedial action meeting the
requirements of paragraph (1) that does not attain a level or
standard of control at least equivalent to a legally applicable
or relevant and appropriate standard, requirement, criteria, or
limitation as required by paragraph (2) (including subparagraph
(B) thereof), if the President finds that--
[(A) the remedial action selected is only part of a
total remedial action that will attain such level or
standard of control when completed;
[(B) compliance with such requirement at that
facility will result in greater risk to human health
and the environment than alternative options;
[(C) compliance with such requirements is
technically impracticable from an engineering
perspective;
[(D) the remedial action selected will attain a
standard of performance that is equivalent to that
required under the otherwise applicable standard,
requirement, criteria, or limitation, through use of
another method or approach;
[(E) with respect to a State standard, requirement,
criteria, or limitation, the State has not consistently
applied (or demonstrated the intention to consistently
apply) the standard, requirement, criteria, or
limitation in similar circumstances at other remedial
actions within the State; or
[(F) in the case of a remedial action to be
undertaken solely under section 104 using the Fund,
selection of a remedial action that attains such level
or standard of control will not provide a balance
between the need for protection of public health and
welfare and the environment at the facility under
consideration, and the availability of amounts from the
Fund to respond to other sites which present or may
present a threat to public health or welfare or the
environment, taking into consideration the relative
immediacy of such threats.
[The President shall publish such findings, together with an
explanation and appropriate documentation.]
[(e)] (d) Permits and Enforcement.--(1) No Federal, State,
or local permit shall be required for the portion of any
removal or remedial action conducted entirely onsite, where
such remedial action is selected and carried out in compliance
with this section.
(2) A State may enforce any Federal or State standard,
requirement, criteria, or limitation to which the remedial
action is required to conform under this Act in the United
States district court for the district in which the facility is
located. Any consent decree shall require the parties to
attempt expeditiously to resolve disagreements concerning
implementation of the remedial action informally with the
appropriate Federal and State agencies. Where the parties
agree, the consent decree may provide for administrative
enforcement. Each consent decree shall also contain stipulated
penalties for violations of the decree in an amount not to
exceed $25,000 per day, which may be enforced by either the
President or the State. Such stipulated penalties shall not be
construed to impair or affect the authority of the court to
order compliance with the specific terms of any such decree.
[(f)] (e) State Involvement.--(1) The President shall
promulgate regulations providing for substantial and meaningful
involvement by each State in initiation, development, and
selection of remedial actions to be undertaken in that State.
The regulations, at a minimum, shall include each of the
following:
(A) State involvement in decisions whether to
perform a preliminary assessment and site inspection.
(B) Allocation of responsibility for hazard ranking
system scoring.
(C) State concurrence in deleting sites from the
National Priorities List.
(D) State participation in the long-term planning
process for all remedial sites within the State.
(E) A reasonable opportunity for States to review
and comment on each of the following:
(i) The remedial investigation and
feasibility study and all data and technical
documents leading to its issuance.
(ii) The planned remedial action identified
in the remedial investigation and feasibility
study.
(iii) The engineering design following
selection of the final remedial action.
(iv) Other technical data and reports
relating to implementation of the remedy.
(v) Any proposed finding or decision by the
President to exercise the authority of
subsection (d)(4).
(F) Notice to the State of negotiations with
potentially responsible parties regarding the scope of
any response action at a facility in the State and an
opportunity to participate in such negotiations and,
subject to paragraph (2), be a party to any settlement.
(G) Notice to the State and an opportunity to
comment on the President's proposed plan for remedial
action as well as on alternative plans under
consideration. The President's proposed decision
regarding the selection of remedial action shall be
accompanied by a response to the comments submitted by
the State, including an explanation regarding any
decision under subsection (d)(4) on compliance with
promulgated State standards. A copy of such response
shall also be provided to the State.
(H) Prompt notice and explanation of each proposed
action to the State in which the facility is located.
Prior to the promulgation of such regulations, the President
shall provide notice to the State of negotiations with
potentially responsible parties regarding the scope of any
response action at a facility in the State, and such State may
participate in such negotiations and, subject to paragraph (2),
any settlements.
(2)(A) This paragraph shall apply to remedial actions
secured under section 106. At least 30 days prior to the
entering of any consent decree, if the President proposes to
select a remedial action that does not attain a legally
applicable or relevant and appropriate standard, requirement,
criteria, or limitation, under the authority of subsection
(d)(4), the President shall provide an opportunity for the
State to concur or not concur in such selection. If the State
concurs, the State may become a signatory to the consent
decree.
(B) If the State does not concur in such selection, and
the State desires to have the remedial action conform to such
standard, requirement, criteria, or limitation, the State shall
intervene in the action under section 106 before entry of the
consent decree, to seek to have the remedial action so conform.
Such intervention shall be a matter of right. The remedial
action shall conform to such standard, requirement, criteria,
or limitation if the State establishes, on the administrative
record, that the finding of the President was not supported by
substantial evidence. If the court determines that the remedial
action shall conform to such standard, requirement, criteria,
or limitation, the remedial action shall be so modified and the
State may become a signatory to the decree. If the court
determines that the remedial action need not conform to such
standard, requirement, criteria, or limitation, and the State
pays or assures the payment of the additional costs
attributable to meeting such standard, requirement, criteria,
or limitation, the remedial action shall be so modified and the
State shall become a signatory to the decree.
(C) The President may conclude settlement negotiations
with potentially responsible parties without State concurrence.
(3)(A) This paragraph shall apply to remedial actions at
facilities owned or operated by a department, agency, or
instrumentality of the United States. At least 30 days prior to
the publication of the President's final remedial action plan,
if the President proposes to select a remedial action that does
not attain a legally applicable or relevant and appropriate
standard, requirement, criteria, or limitation, under the
authority of subsection (d)(4), the President shall provide an
opportunity for the State to concur or not concur in such
selection. If the State concurs, or does not act within 30
days, the remedial action may proceed.
(B) If the State does not concur in such selection as
provided in subparagraph (A), and desires to have the remedial
action conform to such standard, requirement, criteria, or
limitation, the State may maintain an action as follows:
(i) If the President has notified the State of
selection of such a remedial action, the State may
bring an action within 30 days of such notification for
the sole purpose of determining whether the finding of
the President is supported by substantial evidence.
Such action shall be brought in the United States
district court for the district in which the facility
is located.
(ii) If the State establishes, on the
administrative record, that the President's finding is
not supported by substantial evidence, the remedial
action shall be modified to conform to such standard,
requirement, criteria, or limitation.
(iii) If the State fails to establish that the
President's finding was not supported by substantial
evidence and if the State pays, within 60 days of
judgment, the additional costs attributable to meeting
such standard, requirement, criteria, or limitation,
the remedial action shall be selected to meet such
standard, requirement, criteria, or limitation. If the
State fails to pay within 60 days, the remedial action
selected by the President shall proceed through
completion.
(C) Nothing in this section precludes, and the court
shall not enjoin, the Federal agency from taking any remedial
action unrelated to or not inconsistent with such standard,
requirement, criteria, or limitation.
[42 U.S.C. 9621]
SEC. 122. SETTLEMENTS.
(a) Authority To Enter Into Agreements.--The President,
in his discretion, may enter into an agreement with any person
(including the owner or operator of the facility from which a
release or substantial threat of release emanates, or any other
potentially responsible person), to perform any response action
(including any action described in section 104(b)) if the
President determines that such action will be done properly by
such person. Whenever practicable and in the public interest,
as determined by the President, the President shall act to
facilitate agreements under this section that are in the public
interest and consistent with the National Contingency Plan in
order to expedite effective remedial actions and minimize
litigation. If the President decides not to use the procedures
in this section, the President shall notify in writing
potentially responsible parties at the facility of such
decision and the reasons why use of the procedures is
inappropriate. A decision of the President to use or not to use
the procedures in this section is not subject to judicial
review.
(b) Agreements With Potentially Responsible Parties.--
(1) Mixed funding.--An agreement under this section
may provide that the President will reimburse the
parties to the agreement from the Fund, with interest,
for certain costs of actions under the agreement that
the parties have agreed to perform but which the
President has agreed to finance. In any case in which
the President provides such reimbursement, the
President shall make all reasonable efforts to recover
the amount of such reimbursement under section 107 or
under other relevant authorities.
(2) Reviewability.--The President's decisions
regarding the availability of fund financing under this
subsection shall not be subject to judicial review
under subsection (d).
(3) Retention of funds.--If, as part of any
agreement, the President will be carrying out any
action and the parties will be paying amounts to the
President, the President may, notwithstanding any other
provision of law, retain and use such amounts for
purposes of carrying out the agreement.
(4) Future obligation of fund.--In the case of a
completed remedial action pursuant to an agreement
described in paragraph (1), the Fund shall be subject
to an obligation for subsequent remedial actions at the
same facility but only to the extent that such
subsequent actions are necessary by reason of the
failure of the original remedial action. Such
obligation shall be in a proportion equal to, but not
exceeding, the proportion contributed by the Fund for
the original remedial action. The Fund's obligation for
such future remedial action may be met through Fund
expenditures or through payment, following settlement
or enforcement action, by parties who were not
signatories to the original agreement.
(c) Effect of Agreement.--
(1) Liability.--Whenever the President has entered
into an agreement under this section, the liability to
the United States under this Act of each party to the
agreement, including any future liability to the United
States, arising from the release or threatened release
that is the subject of the agreement shall be limited
as provided in the agreement pursuant to a covenant not
to sue in accordance with subsection (f). A covenant
not to sue may provide that future liability to the
United States of a settling potentially responsible
party under the agreement may be limited to the same
proportion as that established in the original
settlement agreement. Nothing in this section shall
limit or otherwise affect the authority of any court to
review in the consent decree process under subsection
(d) any covenant not to sue contained in an agreement
under this section. In determining the extent to which
the liability of parties to an agreement shall be
limited pursuant to a covenant not to sue, the
President shall be guided by the principle that a more
complete covenant not to sue shall be provided for a
more permanent remedy undertaken by such parties.
(2) Actions against other persons.--If an agreement
has been entered into under this section, the President
may take any action under section 106 against any
person who is not a party to the agreement, once the
period for submitting a proposal under subsection
(e)(2)(B) has expired. Nothing in this section shall be
construed to affect either of the following:
(A) The liability of any person under
section 106 or 107 with respect to any costs or
damages which are not included in the
agreement.
(B) The authority of the President to
maintain an action under this Act against any
person who is not a party to the agreement.
(d) Enforcement.--
(1) Cleanup agreements.--
(A) Consent decree.--Whenever the President
enters into an agreement under this section
with any potentially responsible party with
respect to remedial action under section 106,
following approval of the agreement by the
Attorney General, except as otherwise provided
in the case of certain administrative
settlements referred to in subsection (g), the
agreement shall be entered in the appropriate
United States district court as a consent
decree. The President need not make any finding
regarding an imminent and substantial
endangerment to the public health or the
environment in connection with any such
agreement or consent decree.
(B) Effect.--The entry of any consent
decree under this subsection shall not be
construed to be an acknowledgment by the
parties that the release or threatened release
concerned constitutes an imminent and
substantial endangerment to the public health
or welfare or the environment. Except as
otherwise provided in the Federal Rules of
Evidence, the participation by any party in the
process under this section shall not be
considered an admission of liability for any
purpose, and the fact of such participation
shall not be admissible in any judicial or
administrative proceeding, including a
subsequent proceeding under this section.
(C) Structure.--The President may fashion a
consent decree so that the entering of such
decree and compliance with such decree or with
any determination or agreement made pursuant to
this section shall not be considered an
admission of liability for any purpose.
(2) Public participation.--
(A) Filing of proposed judgment.--At least
30 days before a final judgment is entered
under paragraph (1), the proposed judgment
shall be filed with the court.
(B) Opportunity for comment.--The Attorney
General shall provide an opportunity to persons
who are not named as parties to the action to
comment on the proposed judgment before its
entry by the court as a final judgment. The
Attorney General shall consider, and file with
the court, any written comments, views, or
allegations relating to the proposed judgment.
The Attorney General may withdraw or withhold
its consent to the proposed judgment if the
comments, views, and allegations concerning the
judgment disclose facts or considerations which
indicate that the proposed judgment is
inappropriate, improper, or inadequate.
(3) 104(b) agreements.--Whenever the President
enters into an agreement under this section with any
potentially responsible party with respect to action
under section 104(b), the President shall issue an
order or enter into a decree setting forth the
obligations of such party. The United States district
court for the district in which the release or
threatened release occurs may enforce such order or
decree.
(e) Special Notice Procedures.--
(1) Notice.--Whenever the President determines that
a period of negotiation under this subsection would
facilitate an agreement with potentially responsible
parties for taking response action (including any
action described in section 104(b)) and would expedite
remedial action, the President shall so notify all such
parties and shall provide them with information
concerning each of the following:
(A) The names and addresses of potentially
responsible parties (including owners and
operators and other persons referred to in
section 107(a)), to the extent such information
is available.
(B) To the extent such information is
available, the volume and nature of substances
contributed by each potentially responsible
party identified at the facility.
(C) A ranking by volume of the substances
at the facility, to the extent such information
is available.
The President shall make the information referred to in
this paragraph available in advance of notice under
this paragraph upon the request of a potentially
responsible party in accordance with procedures
provided by the President. The provisions of subsection
(e) of section 104 regarding protection of confidential
information apply to information provided under this
paragraph. Disclosure of information generated by the
President under this section to persons other than the
Congress, or any duly authorized Committee thereof, is
subject to other privileges or protections provided by
law, including (but not limited to) those applicable to
attorney work product. Nothing contained in this
paragraph or in other provisions of this Act shall be
construed, interpreted, or applied to diminish the
required disclosure of information under other
provisions of this or other Federal or State laws.
(D) For each potentially responsible party,
the evidence that indicates that each element
of liability contained in section 107(a)(1)
(A), (B), (C), and (D), as applicable, is
present.
(2) Negotiation.--
(A) Moratorium.--Except as provided in this
subsection, the President may not commence
action under section 104(a) or take any action
under section 106 for 120 days after providing
notice and information under this subsection
with respect to such action. Except as provided
in this subsection, the President may not
commence a remedial investigation and
feasibility study under section 104(b) for 90
days after providing notice and information
under this subsection with respect to such
action. The President may commence any
additional studies or investigations authorized
under section 104(b), including remedial
design, during the negotiation period.
(B) Proposals.--Persons receiving notice
and information under paragraph (1) of this
subsection with respect to action under section
106 shall have 60 days from the date of receipt
of such notice to make a proposal to the
President for undertaking or financing the
action under section 106. Persons receiving
notice and information under paragraph (1) of
this subsection with respect to action under
section 104(b) shall have 60 days from the date
of receipt of such notice to make a proposal to
the President for undertaking or financing the
action under section 104(b).
(C) Additional parties.--If an additional
potentially responsible party is identified
during the negotiation period or after an
agreement has been entered into under this
subsection concerning a release or threatened
release, the President may bring the additional
party into the negotiation or enter into a
separate agreement with such party.
(3) Preliminary allocation of responsibility.--
(A) In general.--The President shall
develop guidelines for preparing nonbinding
preliminary allocations of responsibility. In
developing these guidelines the President may
include such factors as the President considers
relevant, such as: volume, toxicity, mobility,
strength of evidence, ability to pay,
litigative risks, public interest
considerations, precedential value, and
inequities and aggravating factors. When it
would expedite settlements under this section
and remedial action, the President may, after
completion of the remedial investigation and
feasibility study, provide a nonbinding
preliminary allocation of responsibility which
allocates percentages of the total cost of
response among potentially responsible parties
at the facility.
(B) Collection of information.--To collect
information necessary or appropriate for
performing the allocation under subparagraph
(A) or for otherwise implementing this section,
the President may by subpoena require the
attendance and testimony of witnesses and the
production of reports, papers, documents,
answers to questions, and other information
that the President deems necessary. Witnesses
shall be paid the same fees and mileage that
are paid witnesses in the courts of the United
States. In the event of contumacy or failure or
refusal of any person to obey any such
subpoena, any district court of the United
States in which venue is proper shall have
jurisdiction to order any such person to comply
with such subpoena. Any failure to obey such an
order of the court is punishable by the court
as a contempt thereof.
(C) Effect.--The nonbinding preliminary
allocation of responsibility shall not be
admissible as evidence in any proceeding, and
no court shall have jurisdiction to review the
nonbinding preliminary allocation of
responsibility. The nonbinding preliminary
allocation of responsibility shall not
constitute an apportionment or other statement
on the divisibility of harm or causation.
(D) Costs.--The costs incurred by the
President in producing the nonbinding
preliminary allocation of responsibility shall
be reimbursed by the potentially responsible
parties whose offer is accepted by the
President. Where an offer under this section is
not accepted, such costs shall be considered
costs of response.
(E) Decision to reject offer.--Where the
President, in his discretion, has provided a
nonbinding preliminary allocation of
responsibility and the potentially responsible
parties have made a substantial offer providing
for response to the President which he rejects,
the reasons for the rejection shall be provided
in a written explanation. The President's
decision to reject such an offer shall not be
subject to judicial review.
(4) Failure to propose.--If the President
determines that a good faith proposal for undertaking
or financing action under section 106 has not been
submitted within 60 days of the provision of notice
pursuant to this subsection, the President may
thereafter commence action under section 104(a) or take
an action against any person under section 106 of this
Act. If the President determines that a good faith
proposal for undertaking or financing action under
section 104(b) has not been submitted within 60 days
after the provision of notice pursuant to this
subsection, the President may thereafter commence
action under section 104(b).
(5) Significant threats.--Nothing in this
subsection shall limit the President's authority to
undertake response or enforcement action regarding a
significant threat to public health or the environment
within the negotiation period established by this
subsection.
(6) Inconsistent response action.--When either the
President, or a potentially responsible party pursuant
to an administrative order or consent decree under this
Act, has initiated a remedial investigation and
feasibility study for a particular facility under this
Act, no potentially responsible party may undertake any
remedial action at the facility unless such remedial
action has been authorized by the President.
(f) Covenant Not To Sue.--
(1) Discretionary covenants.--The President may, in
his discretion, provide any person with a covenant not
to sue concerning any liability to the United States
under this Act, including future liability, resulting
from a release or threatened release of a hazardous
substance addressed by a remedial action, whether that
action is onsite or offsite, if each of the following
conditions is met:
(A) The covenant not to sue is in the
public interest.
(B) The covenant not to sue would expedite
response action consistent with the National
Contingency Plan under section 105 of this Act.
(C) The person is in full compliance with a
consent decree under section 106 (including a
consent decree entered into in accordance with
this section) for response to the release or
threatened release concerned.
(D) The response action has been approved
by the President.
(2) Special covenants not to sue.--In the case of
any person to whom the President is authorized under
paragraph (1) of this subsection to provide a covenant
not to sue, for the portion of remedial action--
(A) which involves the transport and secure
disposition offsite of hazardous substances in
a facility meeting the requirements of sections
3004 (c), (d), (e), (f), (g), (m), (o), (p),
(u), and (v) and 3005(c) of the Solid Waste
Disposal Act, where the President has rejected
a proposed remedial action that is consistent
with the National Contingency Plan that does
not include such offsite disposition and has
thereafter required offsite disposition; or
(B) which involves the treatment of
hazardous substances so as to destroy,
eliminate, or permanently immobilize the
hazardous constituents of such substances, such
that, in the judgment of the President, the
substances no longer present any current or
currently foreseeable future significant risk
to public health, welfare or the environment,
no byproduct of the treatment or destruction
process presents any significant hazard to
public health, welfare or the environment, and
all byproducts are themselves treated,
destroyed, or contained in a manner which
assures that such byproducts do not present any
current or currently foreseeable future
significant risk to public health, welfare or
the environment,
the President shall provide such person with a covenant
not to sue with respect to future liability to the
United States under this Act for a future release or
threatened release of hazardous substances from such
facility, and a person provided such covenant not to
sue shall not be liable to the United States under
section 106 or 107 with respect to such release or
threatened release at a future time.
(3) Requirement that remedial action be
completed.--A covenant not to sue concerning future
liability to the United States shall not take effect
until the President certifies that remedial action has
been completed in accordance with the requirements of
this Act at the facility that is the subject of such
covenant.
(4) Factors.--In assessing the appropriateness of a
covenant not to sue under paragraph (1) and any
condition to be included in a covenant not to sue under
paragraph (1) or (2), the President shall consider
whether the covenant or condition is in the public
interest on the basis of such factors as the following:
(A) The effectiveness and reliability of
the remedy, in light of the other alternative
remedies considered for the facility concerned.
(B) The nature of the risks remaining at
the facility.
(C) The extent to which performance
standards are included in the order or decree.
(D) The extent to which the response action
provides a complete remedy for the facility,
including a reduction in the hazardous nature
of the substances at the facility.
(E) The extent to which the technology used
in the response action is demonstrated to be
effective.
(F) Whether the Fund or other sources of
funding would be available for any additional
remedial actions that might eventually be
necessary at the facility.
(G) Whether the remedial action will be
carried out, in whole or in significant part,
by the responsible parties themselves.
(5) Satisfactory performance.--Any covenant not to
sue under this subsection shall be subject to the
satisfactory performance by such party of its
obligations under the agreement concerned.
(6) Additional condition for future liability.--(A)
Except for the portion of the remedial action which is
subject to a covenant not to sue under paragraph (2) or
under subsection (g) (relating to de minimis
settlements), a covenant not to sue a person concerning
future liability to the United States shall include an
exception to the covenant that allows the President to
sue such person concerning future liability resulting
from the release or threatened release that is the
subject of the covenant where such liability arises out
of conditions which are unknown at the time the
President certifies under paragraph (3) that remedial
action has been completed at the facility concerned.
(B) In extraordinary circumstances, the President
may determine, after assessment of relevant factors
such as those referred to in paragraph (4) and volume,
toxicity, mobility, strength of evidence, ability to
pay, litigative risks, public interest considerations,
precedential value, and inequities and aggravating
factors, not to include the exception referred to in
subparagraph (A) if other terms, conditions, or
requirements of the agreement containing the covenant
not to sue are sufficient to provide all reasonable
assurances that public health and the environment will
be protected from any future releases at or from the
facility.
(C) The President is authorized to include any
provisions allowing future enforcement action under
section 106 or 107 that in the discretion of the
President are necessary and appropriate to assure
protection of public health, welfare, and the
environment.
[(g) De Minimis Settlements] (g) Expedited Final
Settlement.--
[(1) Expedited final settlement.--Whenever
practicable and in the public interest, as determined
by the President, the President shall as promptly as
possible reach a final settlement with a potentially
responsible party in an administrative or civil action
under section 106 or 107 if such settlement involves
only a minor portion of the response costs at the
facility concerned and, in the judgment of the
President, the conditions in either of the following
subparagraph (A) or (B) are met:
[(A) Both of the following are minimal in
comparison to other hazardous substances at the
facility:
[(i) The amount of the hazardous
substances contributed by that party to
the facility.
[(ii) The toxic or other hazardous
effects of the substances contributed
by that party to the facility.
(1) Parties eligible.--
(A) In general.--As expeditiously as
practicable, the President shall--
(i) notify each potentially
responsible party that meets 1 or more
of the conditions stated in
subparagraphs (B), (C), and (D) of the
party's eligibility for a settlement;
and
(ii) offer to reach a final
administrative or judicial settlement
with the party.
(B) De minimis contribution.--The condition
stated in this subparagraph is that the
liability is for response costs based on
subparagraph (C) or (D) of section 107(a)(1)
and the party's contribution of a hazardous
substance at a facility is de minimis. For the
purposes of this subparagraph, a potentially
responsible party's contribution shall be
considered to be de minimis only if the
President determines that both of the following
criteria are met:
(i) The amount of material
containing a hazardous substance
contributed by the potentially
responsible party to the facility is
minimal relative to the total amount of
material containing hazardous
substances at the facility. The amount
of a potentially responsible party's
contribution shall be presumed to be
minimal if the amount is 1 percent or
less of the total amount of material
containing a hazardous substance at the
facility, unless the Administrator
promptly identifies a greater threshold
based on site-specific factors.
(ii) The material containing a
hazardous substance contributed by the
potentially responsible party does not
present toxic or other hazardous
effects that are significantly greater
than the toxic or other hazardous
effects of other material containing a
hazardous substance at the facility.
[(B)] (C) [The potentially responsible
party]
(C) Owners of real property.--
(i) In general.--The condition
stated in this subparagraph is that the
potentially responsible party--
[(i)] (I) is the owner of
the real property on or in
which the facility is located;
[(ii)] (II) did not conduct
or permit the generation,
transportation, storage,
treatment, or disposal of any
hazardous substance at the
facility; and
[(iii)] (III) did not
contribute to the release or
threat of release of a
hazardous substance at the
facility through any action or
omission.
[This subparagraph (B)] (ii)
Applicability.--Clause (i) does not
apply if the potentially responsible
party purchased the real property with
actual or constructive knowledge that
the property was used for the
generation, transportation, storage,
treatment, or disposal of any hazardous
substance.
(2) Covenant not to sue.--The President may provide
a covenant not to sue with respect to the facility
concerned to any party who has entered into a
settlement under this subsection unless such a covenant
would be inconsistent with the public interest as
determined under subsection (f).
(3) Expedited agreement.--The President shall reach
any such settlement or grant any such covenant not to
sue as soon as possible after the President has
available the information necessary to reach such a
settlement or grant such a covenant.
(4) Consent decree or administrative order.--A
settlement under this subsection shall be entered as a
consent decree or embodied in an administrative order
setting forth the terms of the settlement. In the case
of any facility where the total response costs exceed
$500,000 (excluding interest), if the settlement is
embodied as an administrative order, the order may be
issued only with the prior written approval of the
Attorney General. If the Attorney General or his
designee has not approved or disapproved the order
within 30 days of this referral, the order shall be
deemed to be approved unless the Attorney General and
the Administrator have agreed to extend the time. The
district court for the district in which the release or
threatened release occurs may enforce any such
administrative order.
(5) Effect of agreement.--A party who has resolved
its liability to the United States under this
subsection shall not be liable for claims for
contribution regarding matters addressed in the
settlement. Such settlement does not discharge any of
the other potentially responsible parties unless its
terms so provide, but it reduces the potential
liability of the others by the amount of the
settlement.
(6) Settlement offers.--
(A) In general.--As soon as practicable
after receipt of sufficient information, the
Administrator shall submit a written settlement
offer (stated in dollars) to each person that
the Administrator determines, based on
information available to the Administrator at
the time at which the determination is made, to
be eligible for a settlement under paragraph
(1).
(B) Information.--At the time at which the
Administrator submits an offer under paragraph
(1), the Administrator shall, at the request of
the recipient of the offer, make available to
the recipient any information available under
section 552 of title 5, United States Code, on
which the Administrator bases the settlement
offer, and if the settlement offer is based in
whole or in part on information not available
under that section, so inform the recipient.
(7) Litigation moratorium.--
(A) In general.--No person eligible for an
expedited settlement under paragraph (1) shall
be named as a defendant in any action under
this Act or any other Federal or State law for
recovery of response costs incurred after the
date of enactment of this paragraph (including
an action for contribution) during the period
beginning on the date on which the person
receives from the President written notice of
the person's potential liability and notice
that the person is a party that may qualify for
an expedited settlement, and ending on the
earlier of--
(i) the date that is 90 days after
the date on which the President tenders
a written settlement offer to the
person; or
(ii) the date that is 1 year after
the date specified in subparagraph (A).
(B) Tolling of period of limitation.--The
period of limitation under section 113(g)
applicable to a claim against a person
described in subparagraph (A) for response
costs (including an action for contribution or
natural resource damages) shall be tolled
during the period described in subparagraph
(A).
(8) Notice of settlement.--After a settlement under
this subsection becomes final with any person with
respect to a facility, the President shall promptly
notify potentially responsible parties at the facility
that have not resolved their liability to the United
States of the settlement.
[(6)] (9) Settlements with other potentially
responsible parties.--Nothing in this subsection shall
be construed to affect the authority of the President
to reach settlements with other potentially responsible
parties under this Act.
(D) Reduction in settlement amount based on
limited ability to pay.--
(i) In general.--The condition
stated in this subparagraph is that--
(I) the potentially
responsible party is--
(aa) a natural
person;
(bb) a small
business; or
(cc) a
municipality;
(II) the potentially
responsible party demonstrates
to the President an inability
to pay or has only a limited
ability to pay response costs,
as determined by the
Administrator under a
regulation promulgated by the
Administrator, after public
notice and opportunity for
comment and after consultation
with the Administrator of the
Small Business Administration
and the Secretary of Housing
and Urban Development; and
(III) in the case of a
potentially responsible party
that is a small business, the
potentially responsible party
does not qualify for the small
business exemption under
section 107(s) because of the
application of section
107(s)(2)(A).
(ii) Small businesses.--
(I) Definition of small
business.--In this
subparagraph, the term ``small
business'' means a business
entity that--
(aa) during the
taxable year preceding
the date of transmittal
of notification that
the business is a
potentially responsible
party, had full- and
part-time employees
whose combined time was
equivalent to 50 or
fewer full-time
employees or for that
taxable year reported
$3,000,000 or less in
gross revenue; and
(bb) the person is
not affiliated through
any familial or
corporate relationship
with any person that is
or was a party
potentially responsible
for response costs at
the facility.
(II) Considerations.--At
the request of a small
business, the President shall
take into consideration the
ability of the small business
to pay response costs and still
maintain its basic business
operations, including
consideration of the overall
financial condition of the
small business and demonstrable
constraints on the ability of
the small business to raise
revenues.
(III) Information.--A small
business requesting settlement
under this paragraph shall
promptly provide the President
with all relevant information
needed to determine the ability
of the small business to pay
response costs.
(IV) Determination.--A
small business shall
demonstrate the amount of its
ability to pay response costs,
and the President shall perform
any analysis that the President
determines may assist in
demonstrating the impact of a
settlement on the ability of
the small business to maintain
its basic operations. The
President, in the discretion of
the President, may perform such
analysis for any other party or
request such other party to
perform the analysis.
(V) Alternative payment
methods.--If the President
determines that a small
business is unable to pay its
total settlement amount
immediately, the President
shall consider such alternative
payment methods as may be
necessary or appropriate.
(iii) Municipalities.--
(I) Considerations.--The
President shall consider the
inability or limited ability to
pay of a municipality to the
extent that the municipality
provides necessary information
with respect to--
(aa) the general
obligation bond rating
and information about
the most recent bond
issue for which the
rating was prepared;
(bb) the amount of
total available funds
(other than dedicated
funds or State
assistance payments for
remediation of inactive
hazardous waste sites);
(cc) the amount of
total operating
revenues (other than
obligated or encumbered
revenues);
(dd) the amount of
total expenses;
(ee) the amounts of
total debt and debt
service;
(ff) per capita
income and cost of
living;
(gg) real property
values;
(hh) unemployment
information; and
(ii) population
information.
(II) Evaluation of
impact.--A municipality may
also submit for consideration
by the President an evaluation
of the potential impact of the
settlement on the provision of
municipal services and the
feasibility of making delayed
payments or payments over time.
(III) Risk of default or
violation.--A municipality may
establish an inability to pay
for purposes of this
subparagraph through an
affirmative showing that
payment of its liability under
this Act would--
(aa) create a
substantial
demonstrable risk that
the municipality would
default on debt
obligations existing as
of the time of the
showing, be forced into
bankruptcy, be forced
to dissolve, or be
forced to make
budgetary cutbacks that
would substantially
reduce the level of
protection of public
health and safety; or
(bb) necessitate a
violation of legal
requirements or
limitations of general
applicability
concerning the
assumption and
maintenance of fiscal
municipal obligations.
(IV) Other factors relevant
to settlements with
municipalities.--In determining
an appropriate settlement
amount with a municipality
under this subparagraph, the
President may consider other
relevant factors, including the
fair market value of any in-
kind services that the
municipality may provide to
support the response action at
the facility.
(iv) Other potentially responsible
parties.--This subparagraph does not
affect the President's authority to
evaluate the ability to pay of a
potentially responsible party other
than a natural person, small business,
or municipality or to enter into a
settlement with such other party based
on that party's ability to pay.
(F) Additional conditions for expedited
settlements.--
(i) Waiver of claims.--The
President shall require, as a condition
of settlement under this paragraph,
that a potentially responsible party
waive the claims (including a claim for
contribution under section 113) that
the party may have against other
potentially responsible parties for all
response costs addressed in the
settlement.
(ii) Exception.--The President may
decline to offer a settlement to a
potentially responsible party under
this paragraph if the President
determines that the potentially
responsible party has failed to
substantially comply with the
requirement stated in subsection (y)
with respect to the facility.
(iii) Responsibility to provide
information.--A potentially responsible
party that enters into a settlement
under this paragraph shall not be
relieved of the responsibility to
provide any information requested by
the President in accordance with
subsection (e)(3)(B) or section 104(e).
(iv) Basis of determination.--If
the President determines that a
potentially responsible party is not
eligible for settlement under this
paragraph, the President shall state
the reasons for the determination in
writing to any potentially responsible
party that requests a settlement under
this paragraph.
(v) No judicial review.--A
determination by the President under
this paragraph shall not be subject to
judicial review.
(h) Cost Recovery Settlement Authority.--
(1) Authority to settle.--The head of any
department or agency with authority to undertake a
response action under this Act pursuant to the national
contingency plan may consider, compromise, and settle a
claim under section 107 for costs incurred by the
United States Government if the claim has not been
referred to the Department of Justice for further
action. In the case of any facility where the total
response costs exceed $500,000 (excluding interest),
any claim referred to in the preceding sentence may be
compromised and settled only with the prior written
approval of the Attorney General.
(2) Use of arbitration.--Arbitration in accordance
with regulations promulgated under this subsection may
be used as a method of settling claims of the United
States where the total response costs for the facility
concerned do not exceed $500,000 (excluding interest).
After consultation with the Attorney General, the
department or agency head may establish and publish
regulations for the use of arbitration or settlement
under this subsection.
(3) Recovery of claims.--If any person fails to pay
a claim that has been settled under this subsection,
the department or agency head shall request the
Attorney General to bring a civil action in an
appropriate district court to recover the amount of
such claim, plus costs, attorneys' fees, and interest
from the date of the settlement. In such an action, the
terms of the settlement shall not be subject to review.
(4) Claims for contribution.--A person who has
resolved its liability to the United States under this
subsection shall not be liable for claims for
contribution regarding matters addressed in the
settlement. Such settlement shall not discharge any of
the other potentially liable persons unless its terms
so provide, but it reduces the potential liability of
the others by the amount of the settlement.
(i) Settlement Procedures.--
(1) Publication in federal register.--At least 30
days before any settlement (including any settlement
arrived at through arbitration) may become final under
subsection (h), or under subsection (g) in the case of
a settlement embodied in an administrative order, the
head of the department or agency which has jurisdiction
over the proposed settlement shall publish in the
Federal Register notice of the proposed settlement. The
notice shall identify the facility concerned and the
parties to the proposed settlement.
(2) Comment period.--For a 30-day period beginning
on the date of publication of notice under paragraph
(1) of a proposed settlement, the head of the
department or agency which has jurisdiction over the
proposed settlement shall provide an opportunity for
persons who are not parties to the proposed settlement
to file written comments relating to the proposed
settlement.
(3) Consideration of comments.--The head of the
department or agency shall consider any comments filed
under paragraph (2) in determining whether or not to
consent to the proposed settlement and may withdraw or
withhold consent to the proposed settlement if such
comments disclose facts or considerations which
indicate the proposed settlement is inappropriate,
improper, or inadequate.
(j) Natural Resources.--
(1) Notification of trustee.--Where a release or
threatened release of any hazardous substance that is
the subject of negotiations under this section may have
resulted in damages to natural resources under the
trusteeship of the United States, the President shall
notify the Federal natural resource trustee of the
negotiations and shall encourage the participation of
such trustee in the negotiations.
(2) Covenant not to sue.--An agreement under this
section may contain a covenant not to sue under section
107(a)(4)(C) for damages to natural resources under the
trusteeship of the United States resulting from the
release or threatened release of hazardous substances
that is the subject of the agreement, but only if the
Federal natural resource trustee has agreed in writing
to such covenant. The Federal natural resource trustee
may agree to such covenant if the potentially
responsible party agrees to undertake appropriate
actions necessary to protect and restore the natural
resources damaged by such release or threatened release
of hazardous substances.
(k) Section Not Applicable to Vessels.--The provisions of
this section shall not apply to releases from a vessel.
(l) Civil Penalties.--A potentially responsible party
which is a party to an administrative order or consent decree
entered pursuant to an agreement under this section or section
120 (relating to Federal facilities) or which is a party to an
agreement under section 120 and which fails or refuses to
comply with any term or condition of the order, decree or
agreement shall be subject to a civil penalty in accordance
with section 109.
(m) Applicability of General Principles of Law.--In the
case of consent decrees and other settlements under this
section (including covenants not to sue), no provision of this
Act shall be construed to preclude or otherwise affect the
applicability of general principles of law regarding the
setting aside or modification of consent decrees or other
settlements.
(n) Relationship to Liability Under Other Law.--Nothing
in this section affects the obligation of any person to comply
with any other Federal, State, or local law (including
requirements under the Solid Waste Disposal Act (42 U.S.C. 6901
et seq.)).
[42 U.S.C. 9622]
SEC. 123. REIMBURSEMENT TO LOCAL GOVERNMENTS.
(a) Application.--Any general purpose unit of local
government for a political subdivision which is affected by a
release or threatened release at any facility may apply to the
President for reimbursement under this section.
(b) Reimbursement.--
(1) Temporary emergency measures.--The President is
authorized to reimburse local community authorities for
expenses incurred (before or after the enactment of the
Superfund Amendments and Reauthorization Act of 1986)
in carrying out temporary emergency measures necessary
to prevent or mitigate injury to human health or the
environment associated with the release or threatened
release of any hazardous substance or pollutant or
contaminant. Such measures may include, where
appropriate, security fencing to limit access, response
to fires and explosions, and other measures which
require immediate response at the local level.
(2) Local funds not supplanted.--Reimbursement
under this section shall not supplant local funds
normally provided for response.
(c) Amount.--The amount of any reimbursement to any local
authority under subsection (b)(1) may not exceed $25,000 for a
single response. The reimbursement under this section with
respect to a single facility shall be limited to the units of
local government having jurisdiction over the political
subdivision in which the facility is located.
(d) Procedure.--Reimbursements authorized pursuant to
this section shall be in accordance with rules promulgated by
the Administrator within one year after the enactment of the
Superfund Amendments and Reauthorization Act of 1986.
[42 U.S.C. 9623]
SEC. 124. METHANE RECOVERY.
(a) In General.--In the case of a facility at which
equipment for the recovery or processing (including
recirculation of condensate) of methane has been installed, for
purposes of this Act:
(1) The owner or operator of such equipment shall
not be considered an ``owner or operator'', as defined
in section 101(20), with respect to such facility.
(2) The owner or operator of such equipment shall
not be considered to have arranged for disposal or
treatment of any hazardous substance at such facility
pursuant to section 107 of this Act.
(3) The owner or operator of such equipment shall
not be subject to any action under section 106 with
respect to such facility.
(b) Exceptions.--Subsection (a) does not apply with
respect to a release or threatened release of a hazardous
substance from a facility described in subsection (a) if either
of the following circumstances exist:
(1) The release or threatened release was primarily
caused by activities of the owner or operator of the
equipment described in subsection (a).
(2) The owner or operator of such equipment would
be covered by paragraph (1), (2), (3), or (4) of
subsection (a) of section 107 with respect to such
release or threatened release if he were not the owner
or operator of such equipment.
In the case of any release or threatened release referred to in
paragraph (1), the owner or operator of the equipment described
in subsection (a) shall be liable under this Act only for costs
or damages primarily caused by the activities of such owner or
operator.
[42 U.S.C. 9624]
SEC. 125. SECTION 3001(b)(3)(A)(i) WASTE.
(a) Revision of Hazard Ranking System.--This section
shall apply only to facilities which are not included or
proposed for inclusion on the National Priorities List and
which contain substantial volumes of waste described in section
3001(b)(3)(A)(i) of the Solid Waste Disposal Act. As
expeditiously as practicable, the President shall revise the
hazard ranking system in effect under the National Contingency
Plan with respect to such facilities in a manner which assures
appropriate consideration of each of the following site-
specific characteristics of such facilities:
(1) The quantity, toxicity, and concentrations of
hazardous constituents which are present in such waste
and a comparison thereof with other wastes.
(2) The extent of, and potential for, release of
such hazardous constituents into the environment.
(3) The degree of risk to human health and the
environment posed by such constituents.
(b) Inclusion Prohibited.--Until the hazard ranking
system is revised as required by this section, the President
may not include on the National Priorities List any facility
which contains substantial volumes of waste described in
section 3001(b)(3)(A)(i) of the Solid Waste Disposal Act on the
basis of an evaluation made principally on the volume of such
waste and not on the concentrations of the hazardous
constituents of such waste. Nothing in this section shall be
construed to affect the President's authority to include any
such facility on the National Priorities List based on the
presence of other substances at such facility or to exercise
any other authority of this Act with respect to such other
substances.
[42 U.S.C. 9625]
SEC. 126. INDIAN TRIBES.
(a) Treatment Generally.--The governing body of an Indian
tribe shall be afforded substantially the same treatment as a
State with respect to the provisions of section 103(a)
(regarding notification of releases), section 104(c)(2)
(regarding consultation on remedial actions), section 104(e)
(regarding access to information), section 104(i) (regarding
health authorities) [and section 105], section 105 (regarding
roles and responsibilities under the national contingency plan
and submittal of priorities for remedial action, but not
including the provision regarding the inclusion of at least one
facility per State on the National Priorities List), and
section 130 (with respect to a facility that is located on
Indian lands).
(b) Community Relocation.--Should the President determine
that proper remedial action is the permanent relocation of
tribal members away from a contaminated site because it is
cost-effective and necessary to protect their health and
welfare, such finding must be concurred in by the affected
tribal government before relocation shall occur. The President,
in cooperation with the Secretary of the Interior, shall also
assure that all benefits of the relocation program are provided
to the affected tribe and that alternative land of equivalent
value is available and satisfactory to the tribe. Any lands
acquired for relocation of tribal members shall be held in
trust by the United States for the benefit of the tribe.
(c) Study.--The President shall conduct a survey, in
consultation with the Indian tribes, to determine the extent of
hazardous waste sites on Indian lands. Such survey shall be
included within a report which shall make recommendations on
the program needs of tribes under this Act, with particular
emphasis on how tribal participation in the administration of
such programs can be maximized. Such report shall be submitted
to Congress along with the President's budget request for
fiscal year 1988.
(d) Limitation.--Notwithstanding any other provision of
this Act, no action under this Act by an Indian tribe shall be
barred until the later of the following:
(1) The applicable period of limitations has
expired.
(2) 2 years after the United States, in its
capacity as trustee for the tribe, gives written notice
to the governing body of the tribe that it will not
present a claim or commence an action on behalf of the
tribe or fails to present a claim or commence an action
within the time limitations specified in this Act.
SEC. 127. BROWNFIELDS.
(a) Definitions.--In this section:
(1) Brownfield facility.--
(A) In general.--The term ``brownfield
facility'' means real property, the expansion
or redevelopment of which is complicated by the
presence or potential presence of a hazardous
substance.
(B) Exclusions.--The term ``brownfield
facility'' does not include--
(i) any portion of real property
that, as of the date of submission of
an application for assistance under
this section, is the subject of an
ongoing removal under title I;
(ii) any portion of real property
that has been listed on the National
Priorities List or is proposed for
listing as of the date of the
submission of an application for
assistance under this section;
(iii) any portion of real property
with respect to which cleanup work is
proceeding in substantial compliance
with the requirements of an
administrative order on consent, or
judicial consent decree that has been
entered into, or a permit issued by,
the United States or a duly authorized
State under this Act, the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.),
section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 1321),
the Toxic Substances Control Act (15
U.S.C. 2601 et seq.), or the Safe
Drinking Water Act (42 U.S.C. 300f et
seq.);
(iv) a land disposal unit with
respect to which--
(I) a closure notification
under subtitle C of the Solid
Waste Disposal Act (42 U.S.C.
6921 et seq.) has been
submitted; and
(II) closure requirements
have been specified in a
closure plan or permit;
(v) a facility that is owned or
operated by a department, agency, or
instrumentality of the United States;
or
(vi) a portion of a facility, for
which portion, assistance for response
activity has been obtained under
subtitle I of the Solid Waste Disposal
Act (42 U.S.C. 6991 et seq.) from the
Leaking Underground Storage Tank Trust
Fund established under section 9508 of
the Internal Revenue Code of 1986.
(C) Facilities other than brownfield
facilities.--That a facility may not be a
brownfield facility within the meaning of
subparagraph (A) has no effect on the
eligibility of the facility for assistance
under any provision of Federal law other than
this section.
(2) Eligible entity.--
(A) In general.--The term ``eligible
entity'' means--
(i) a general purpose unit of local
government;
(ii) a land clearance authority or
other quasi-governmental entity that
operates under the supervision and
control of or as an agent of a general
purpose unit of local government;
(iii) a government entity created
by a State legislature;
(iv) a regional council or group of
general purpose units of local
government;
(v) a redevelopment agency that is
chartered or otherwise sanctioned by a
State;
(vi) a State; and
(vii) an Indian Tribe.
(B) Exclusion.--The term ``eligible
entity'' does not include any entity that is
not in substantial compliance with the
requirements of an administrative order on
consent, judicial consent decree that has been
entered into, or a permit issued by, the United
States or a duly authorized State under this
Act, the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), the Toxic
Substances Control Act (15 U.S.C. 2601 et
seq.), or the Safe Drinking Water Act (42
U.S.C. 300f et seq.) with respect to any
portion of real property that is the subject of
the administrative order on consent, judicial
consent decree, or permit.
(3) Facility subject to state cleanup.--The term
``facility subject to State cleanup'' means a facility
that--
(A) is not listed or proposed for listing
on the National Priorities List; and
(i) has been archived from the
Comprehensive Environmental Response,
Compensation, and Liability Information
System;
(ii) was included on the
Comprehensive Environmental Response,
Compensation, and Liability Information
System before the date of enactment of
this section and is not listed or
proposed for listing on the National
Priorities List within 2 years after
the date of enactment of this section;
or
(iii) is included on the
Comprehensive Environmental Response,
Compensation, and Liability Information
System after the date of enactment of
this section, if at least 2 years have
elapsed since the earlier of--
(I) inclusion of the
facility on the Comprehensive
Environmental Response,
Compensation, and Liability
Information System; or
(II) issuance at the
facility of an order under
section 106(a).
(b) Brownfield Grant Program.--
(1) Establishment of program.--The Administrator
shall establish a program to provide grants for the
site characterization and assessment of brownfield
facilities and performance of response actions at
brownfield facilities.
(2) Assistance for site characterization and
assessment and response actions.--
(A) In general.--On approval of an
application made by an eligible entity, the
Administrator may make grants out of the Fund
to the eligible entity to be used for the site
characterization and assessment of and response
actions at 1 or more brownfield facilities or
to capitalize a revolving loan fund.
(B) Site characterization and assessment.--
A site characterization and assessment carried
out with the use of a grant under subparagraph
(A)--
(i) shall be performed in
accordance with section 101(35)(B); and
(ii) may include a process to
identify and inventory potential
brownfield facilities.
(3) Maximum grant amount.--
(A) In general.--A grant under subparagraph
(A) shall not exceed, with respect to any
individual brownfield facility covered by the
grant, $350,000 in total.
(B) Waiver.--The Administrator may waive
the $350,000 limitation under subparagraph (A)
based on the anticipated level of
contamination, size, or status of ownership of
the facility.
(4) General provisions.--
(A) Prohibition.--
(i) In general.--No part of a grant
under this section may be used for
payment of penalties, fines, or
administrative costs.
(ii) Exclusions.--For the purposes
of clause (i), the term
``administrative cost'' does not
include the cost of--
(I) investigation and
identification of the extent of
contamination;
(II) design and performance
of a response action; or
(III) monitoring of natural
resources.
(B) Audits.--The Inspector General of the
Environmental Protection Agency shall conduct
such reviews or audits of loans under
subsection (c) or grants under this subsection
as the Inspector General considers necessary to
carry out the objectives of this section.
Audits shall be conducted in accordance with
the auditing procedures of the General
Accounting Office, including chapter 75 of
title 31, United States Code.
(C) Leveraging.--An eligible entity that
receives a grant under this section may use the
funds for part of a project at a brownfield
facility for which funding is received from
other sources, but the grant shall be used only
for the purposes described in subsection (b)(2)
or (c)(2).
(c) State Loan Funds.--
(1) Grants to states to establish state loan
funds.--
(A) In general.--The Administrator shall
offer to enter into agreements with eligible
States to make capitalization grants, including
letters of credit, to the States to further
objectives of this Act, promote the efficient
use of fund resources, and for other purposes
as are specified in this Act. The Administrator
may enter into an agreement with a city,
county, or regional association of governments,
provided that the area covered by the agreement
has a population greater than 1 million
persons, in a State that has elected not to
enter into an agreement with the Administrator.
Eligible entities in a State, city, county or
region covered by an agreement shall be
eligible to receive assistance from the State
loan fund in lieu of assistance from the
Administrator under subsection (b).
(B) Establishment of fund.--To be eligible
to receive a capitalization grant under this
subsection, a State, city, county or regional
association of governments shall establish a
brownfields revolving loan fund (referred to in
this subsection as a ``State loan fund'') and
comply with the other requirements of this
subsection. Each grant to a State, city, county
or regional association of governments under
this subsection shall be deposited in the State
loan fund.
(C) Extended period.--The grant to a State
loan fund shall be available to the State loan
fund for obligation during the fiscal year for
which the funds are authorized and during the
following fiscal year.
(D) Allotment formula.--Except as otherwise
provided in this subsection, funds made
available to carry out this subsection shall be
allotted to State loan funds that are
established by agreements pursuant to this
section in accordance with a formula developed
by the Administrator through a regulatory
negotiation and reflecting the number of
potential brownfields facilities in areas
covered by agreements and the level of effort
made by each State, city, county or regional
association of governments to return
brownfields to beneficial uses. The formula
shall reserve sufficient funds to provide
assistance to eligible entities in areas not
covered by agreements. The Administrator shall
update the formula not less often than
biennially.
(E) Reallotment.--The grants not obligated
by the last day of the period for which the
grants are available shall be reallotted
according to the formula established under
subparagraph (D).
(2) Use of funds.--Amounts deposited in a State
loan fund, including loan repayments and interest
earned on such amounts, shall be used only for
providing loans or loan guarantees, or as a source of
reserve and security for leveraged loans, the proceeds
of which are deposited in a State loan fund established
under paragraph (1), or other financial assistance
authorized under this subsection to eligible entities.
Funds from capitalization grants shall not be used for
the acquisition of real property or interests therein.
Nothing in this subsection shall be interpreted to
preclude the use of other funds deposited in a State
loan fund to acquire real property or to preclude an
eligible entity from acquiring real property.
(3) Intended use plans.--
(A) In general.--After providing for public
review and comment, each State, city, county or
regional association of governments that has
entered into a capitalization agreement
pursuant to this subsection shall annually
prepare a plan that identifies the intended
uses of the amounts available to the State loan
fund.
(B) Contents.--An intended use plan shall
include--
(i) a list of the projects to be
assisted in the first fiscal year that
begins after the date of the plan,
including a description of the projects
and the expected terms of financial
assistance;
(ii) the criteria and methods
established for the distribution of
funds; and
(iii) a description of the
financial status of the State loan fund
and the short-term and long-term goals
of the State loan fund.
(4) Fund management.--Each State loan fund under
this subsection shall be established, maintained, and
credited with repayments and interest. The fund corpus
shall be available in perpetuity for providing
financial assistance under this subsection. To the
extent amounts in the fund are not required for current
obligation or expenditure, such amounts shall be
invested in interest bearing obligations.
(5) Additional assistance.--
(A) Subsidy.--Notwithstanding any other
provision of this subsection, a State loan fund
may--
(i) provide additional
subsidization (including forgiveness of
principal) to an eligible entity; and
(ii) provide assistance to the
State for the purpose of conducting
response actions at facilities the
ownership of which or control over
which was acquired by a law enforcement
agency through seizure or otherwise in
connection with law enforcement
activity.
(B) Total amount of subsidies.--For each
fiscal year, the total amount of subsidies made
from the corpus or capitalization grant of a
State loan fund pursuant to subparagraph (A)
may not exceed 30 percent of the amount of the
capitalization grant received by the State loan
fund for that year.
(6) Non-federal contribution.--
(A) In general.--Each agreement under
paragraph (1) shall require that the State,
city, county or regional association of
governments deposit in the State loan fund from
non-Federal moneys an amount equal to at least
20 percent of the total amount of the
capitalization grant to be made to the State
loan fund on or before the date on which the
grant payment is made to the State loan fund.
(B) Source.--Resources used to satisfy the
requirement of subparagraph (A) may be drawn
from any non-Federal source.
(C) In-kind contributions.--A contribution
of labor, materials, or services may be used to
satisfy the requirement of subparagraph (A).
(7) Types of assistance.--Except as otherwise
limited by State law, the amounts deposited into a
State loan fund under this subsection may be used
only--
(A) to make loans, on the condition that--
(i) the interest rate for each loan
is less than or equal to the market
interest rate, including an interest
free loan;
(ii) principal and interest
payments on each loan will commence not
later than 1 year after completion of
the project for which the loan was
made, and each loan will be fully
amortized not later than 10 years after
the completion of the project; and
(iii) the State loan fund will be
credited with all payments of principal
and interest on each loan;
(B) to guarantee, or purchase insurance
for, a local obligation (all of the proceeds of
which finance a project eligible for assistance
under this subsection) if the guarantee or
purchase would improve credit market access or
reduce the interest rate applicable to the
obligation;
(C) as a source of revenue or security for
the payment of principal and interest on
revenue or general obligation bonds issued by
the State, city, county or regional association
of governments if the proceeds of the sale of
the bonds will be deposited into the State loan
fund; and
(D) to earn interest on the amounts
deposited into the State loan fund.
(8) Cost of administering fund.--The cost of
administering the State loan fund shall be borne from
funds provided by the State, city, county or regional
association of governments entering into the agreement
and shall be in addition to the matching amounts
required by paragraph (6).
(9) Guidance and regulations.--The Administrator
shall publish guidance and promulgate regulations as
may be necessary to carry out this subsection,
including--
(A) provisions to ensure that each State
loan fund commits and expends funds allotted to
the State loan fund under this subsection as
efficiently as possible in accordance with this
Act and applicable State laws;
(B) guidance to prevent waste, fraud, and
abuse; and
(C) provisions to ensure that the State
loan funds, and eligible entities receiving
assistance under this subsection, use
accounting, audit, and fiscal procedures that
conform to generally accepted accounting
standards.
(10) State report.--Each State, city, county, or
regional association of governments administering a
loan fund and assistance program under this subsection
shall publish and submit to the Administrator a report
every 2 years on its activities under this subsection,
including the findings of the most recent audit of the
fund. The Administrator shall periodically audit all
State loan funds established by, and all other amounts
allotted to, the State loan funds pursuant to this
subsection in accordance with procedures established by
the Comptroller General.
(11) Evaluation.--The Administrator shall conduct
an evaluation of the effectiveness of the State loan
funds through fiscal year 2003. The evaluation shall be
submitted to the Congress at the same time as the
President submits to the Congress, pursuant to section
1108 of title 31, United States Code, an appropriations
request for fiscal year 2005 relating to the budget of
the Environmental Protection Agency.
(d) Grant Applications.--
(1) Submission.--
(A) In general.--Any eligible entity may
submit an application to the Administrator,
through a regional office of the Environmental
Protection Agency and in such form as the
Administrator may require, for a grant under
this section for 1 or more brownfield
facilities.
(B) Coordination.--The Administrator in
developing such application requirements is
instructed to coordinate with other Federal
agencies and departments, such that eligible
entities under this section are made aware of
other available Federal resources.
(C) Guidance.--The Administrator shall
publish guidance to assist eligible entities in
obtaining grants under this section.
(2) Approval.--
(A) Initial grant.--On or about March 30
and September 30 of the first fiscal year
following the date of enactment of this
section, the Administrator shall make grants
under this section to eligible entities that
submit applications before those dates and that
the Administrator determines have the highest
rankings under ranking criteria established
under paragraph (3).
(B) Subsequent grants.--Beginning with the
second fiscal year following the date of
enactment of this section, the Administrator
shall make an annual evaluation of each
application received during the prior fiscal
year and make grants under this section to
eligible entities that submit applications
during the prior year and that the
Administrator determines have the highest
rankings under the ranking criteria established
under paragraph (3).
(3) Ranking criteria.--The Administrator shall
establish a system for ranking grant applications that
includes the following criteria:
(A) The extent to which a grant will
stimulate the availability of other funds for
environmental remediation and subsequent
redevelopment of the area in which the
brownfield facilities are located.
(B) The potential of the development plan
for the area in which the brownfield facilities
are located to stimulate economic development
of the area on completion of the cleanup, such
as the following:
(i) The relative increase in the
estimated fair market value of the area
as a result of any necessary response
action.
(ii) The demonstration by
applicants of the intent and ability to
create new or expand existing business,
employment, recreation, or conservation
opportunities on completion of any
necessary response action.
(iii) If commercial redevelopment
is planned, the estimated additional
full-time employment opportunities and
tax revenues expected to be generated
by economic redevelopment in the area
in which a brownfield facility is
located.
(iv) The estimated extent to which
a grant would facilitate the
identification of or facilitate a
reduction of health and environmental
risks.
(v) The financial involvement of
the State and local government in any
response action planned for a
brownfield facility and the extent to
which the response action and the
proposed redevelopment is consistent
with any applicable State or local
community economic development plan.
(vi) The extent to which the site
characterization and assessment or
response action and subsequent
development of a brownfield facility
involves the active participation and
support of the local community.
(vii) Such other factors as the
Administrator considers appropriate to
carry out the purposes of this section.
(C) The extent to which a grant will enable
the creation of or addition to parks,
greenways, or other recreational property.
(D) The extent to which a grant will meet
the needs of a community that has an inability
to draw on other sources of funding for
environmental remediation and subsequent
redevelopment of the area in which a brownfield
facility is located because of the small
population or low income of the community.
SEC. 128. QUALIFYING STATE VOLUNTARY RESPONSE PROGRAMS.
(a) Assistance to States.--The Administrator shall provide
technical and other assistance to States to establish and
expand qualifying State voluntary response programs that
include the elements listed in subsection (b).
(b) Elements.--The elements of a qualifying State voluntary
response program are the following:
(1) Opportunities for technical assistance for
voluntary response actions.
(2) Adequate opportunities for public
participation, including prior notice and opportunity
for comment in appropriate circumstances, in selecting
response actions.
(3) Streamlined procedures to ensure expeditious
voluntary response actions.
(4) Oversight and enforcement authorities or other
mechanisms that are adequate to ensure that--
(A) voluntary response actions will protect
human health and the environment and be
conducted in accordance with applicable Federal
and State law; and
(B) if the person conducting the voluntary
response action fails to complete the necessary
response activities, including operation and
maintenance or long-term monitoring activities,
the necessary response activities are
completed.
(5) Mechanisms for approval of a voluntary response
action plan, or a requirement for certification or
similar documentation from the State or parties
authorized and licensed by State law to the person
conducting the voluntary response action indicating
that the response is complete.
SEC. 129. ENFORCEMENT IN CASES OF A RELEASE SUBJECT TO A STATE PLAN.
(a) Enforcement.--
(1) In general.--Except as provided in paragraph
(2), in the case of a release or threatened release of
a hazardous substance at a facility subject to State
cleanup (as defined in section 127(a)), neither the
President nor any other person may use any authority
under this Act to take an enforcement action against
any person regarding any matter that is within the
scope of a response action that is being conducted or
has been completed under State law.
(2) Exceptions.--The President may bring
enforcement action under this Act with respect to a
facility described in paragraph (1) if--
(A) the State requests that the President
provide assistance in the performance of a
response action and that the enforcement bar in
paragraph (1) be lifted;
(B) at a facility at which response
activities are ongoing the Administrator--
(i) makes a written determination
that the State is unwilling or unable
to take appropriate action, after the
Administrator has provided the Governor
or other chief executive of the State
notice and an opportunity to cure; and
(ii) the Administrator determines
that the release or threat of release
constitutes a public health or
environmental emergency under section
104(a)(4);
(C) the Administrator determines that
contamination has migrated across a State line,
resulting in the need for further response
action to protect human health or the
environment; or
(D) in the case of a facility at which all
response actions have been completed, the
Administrator--
(i) makes a written determination
that the State is unwilling or unable
to take appropriate action, after the
Administrator has provided the Governor
or other chief executive of the State
notice and an opportunity to cure; and
(ii) makes a written determination
that the facility presents a
substantial risk that requires further
remediation to protect human health or
the environment, as evidenced by--
(I) newly discovered
information regarding
contamination at the facility;
(II) the discovery that
fraud was committed in
demonstrating attainment of
standards at the facility; or
(III) a failure of the
remedy under the State remedial
action plan or a change in land
use giving rise to a clear
threat of exposure.
(3) EPA notification.--
(A) In general.--In the case of a facility
at which there is a release or threatened
release of a hazardous substance, pollutant, or
contaminant and for which the Administrator
intends to undertake an administrative or
enforcement action, the Administrator, prior to
taking the administrative or enforcement
action, shall notify the State of the action
the Administrator intends to take and wait for
an acknowledgment from the State pursuant to
subparagraph (B).
(B) State response.--Not later than 48
hours after receiving a notice from the
Administrator under subparagraph (A), the State
shall notify the Administrator if the facility
is currently or has been subject to a State
remedial action plan.
(C) Public health or environmental
emergency.--If the Administrator finds that a
release or threatened release constitutes a
public health or environmental emergency under
section 104(a)(4), the Administrator may take
appropriate action immediately after giving
notification under subparagraph (A) without
waiting for State acknowledgment.
(b) Facilities Not Subject to State Cleanup.--In the case
of a release or threatened release of a hazardous substance at
a facility not subject to State cleanup (as defined in section
127(a)), the President shall provide notice to the State not
later than 48 hours after issuing an order under section 106(a)
addressing the release or threatened release.
(c) Cost or Damage Recovery Actions.--Subsection (a) shall
not apply to an action brought by any person (including an
Indian Tribe) for the recovery of costs or damages under this
Act incurred before the date of enactment of this section.
(d) Savings Provision.--
(1) Existing agreements.--A memorandum of
agreement, memorandum of understanding, or similar
agreement between the President and a State or Indian
Tribe defining Federal and State or tribal response
action responsibilities that was in effect as of the
date of enactment of this section with respect to a
facility to which subsection (a)(3) does not apply
shall remain effective until the agreement expires in
accordance with the terms of the agreement.
(2) New agreements.--Nothing in this section
precludes the President from entering into an agreement
with a State or Indian Tribe regarding responsibility
at a facility to which subsection (a)(3) does not
apply.
SEC. 130. TRANSFER TO THE STATES OF RESPONSIBILITY AT NON-FEDERAL
NATIONAL PRIORITIES LIST FACILITIES.
(a) Definitions.--In this section:
(1) Authorized State.--The term ``authorized
State'' means a State that is authorized under
subsection (c) to apply State cleanup program
requirements, in lieu of the requirements of this Act,
to the cleanup of a non-Federal listed facility.
(2) Delegable authority.--The term ``delegable
authority'' means authority to perform all of the
authorities included in any 1 or more of the following
categories of authority:
(A) All authorities necessary to perform
technical investigations, evaluations, and risk
analyses.
(B) All authorities necessary to perform
alternatives development and remedy selection.
(C) All authorities necessary to perform
remedial design and remedial action.
(D) All authorities necessary to perform
and operation maintenance.
(E) All authorities necessary to perform
information collection and allocation of
liability.
(3) Delegated state.--The term ``delegated State''
means a State to which delegable authority has been
delegated under subsection (D).
(4) Delegated authority.--The term ``delegated
authority'' means a delegable authority that has been
delegated to a delegated State under subsection (d).
(5) Delegated facility.--The term ``delegated
facility'' means a non-Federal listed facility with
respect to which a delegable authority has been
delegated to a State under subsection (d).
(6) Enforcement authority.--The term ``enforcement
authority'' means all authorities necessary to recover
response costs, require potentially responsible parties
to perform response actions, and otherwise compel
implementation of a response action, including--
(A) issuance of an order under section
106(a);
(B) a response action cost recovery under
section 107;
(C) imposition of a civil penalty or award
under subsection (a)(1)(D) or (b)(4) of section
109;
(D) settlement under section 122;
(E) gathering of information under section
104(e); and
(F) any other authority identified by the
Administrator under subsection (b).
(7) Nondelegable authority.--The term
``nondelegable authority'' means authority to--
(A) make grants to community advisory
groups under section 117; and
(B) conduct research and development
activities under any provision of this Act.
(8) Non-federal listed facility.--The term ``non-
Federal listed facility'' means a facility that--
(A) is not owned or operated by a
department, agency, or instrumentality of the
United States in any branch of the Government;
and
(B) is listed on the National Priorities
List.
(b) Methods for Transfer of Responsibility to The States.--
(1) In general.--The Administrator shall seek, to
the extent consistent with the requirement to protect
human health and the environment, to transfer to the
States the responsibility to perform response actions
at non-Federal listed facilities.
(2) Methods to accomplish transfer.--Responsibility
may be transferred to a State by use of 1 or more of
the following methods:
(A) Authorization under subsection (c).
(B) Delegation under subsection (d).
(3) Facilities within tribal jurisdiction.--
(A) In general.--With respect to a facility
that is located on Indian lands, the
Administrator may grant authorization or
delegation--
(i) to the Indian Tribe; or
(ii) to the State, with the consent
of the Indian Tribe.
(B) Definition of indian lands.--For the
purposes of this subsection, the term ``Indian
lands'' means all land within the limits of any
Indian reservation under the jurisdiction of
the United States Government, notwithstanding
the issuance of any patent, and including
rights-of-way running through the reservation.
(c) Authorization.--
(1) In general.--The Administrator may grant to a
State authority to apply any or all of the requirements
of the State cleanup program in lieu of any or all of
the requirements of this Act to the cleanup of one or
more non-Federal listed facilities.
(2) Application.--A State seeking authorization
shall submit to the Administrator an application
identifying each non-Federal listed facility for which
authorization is requested, including such information
and documentation as the Administrator may require to
enable the Administrator to determine whether and to
what extent--
(A) the State has adequate legal authority,
financial and personnel resources,
organization, and expertise to implement,
administer, and enforce a hazardous substance
response program;
(B) the State cleanup program will be
implemented in a manner that is protective of
human health and the environment;
(C) the State has procedures to ensure
public notice and, as appropriate, opportunity
for comment on remedial action plans,
consistent with section 117; and
(D) the State agrees to exercise its
enforcement authorities to require that persons
that are potentially liable under section
107(a), to the extent practicable, perform and
pay for the response actions.
(3) Action by the Administrator.--
(A) In general.--Not later than 180 days
after receipt from a State of an application
under paragraph (2) (unless the State agrees to
a greater length of time), the Administrator
shall--
(i) approve or disapprove the
application; and
(ii) if the Administrator
disapproves the application, include in
the notice of disapproval an
identification of each criterion under
paragraph (2) that the Administrator
determined was not met and an
explanation of the basis for the
determination.
(B) Failure to act.--
(i) In general.--If the
Administrator does not make a
determination under subparagraph (A)
with respect to an application on or
before the last day of the 180-day
period specified in that subparagraph,
any person may bring an action, without
regard to the notice requirement of
section 310(d)(1), to compel the
Administrator to make a determination.
(ii) Relief.--In an action under
clause (i)(I)--
(I) the court shall order
the Administrator to approve or
disapprove the application
within 30 days after the date
of the order; or
(II) if the Administrator
or any other person interested
in the application contends
that action on the application
should be delayed pending
consideration of additional
information not contained in
the application itself or in
comments submitted regarding
the application--
(aa) remand the
application to the
Administrator only if
the court finds good
cause for the failure
of the Administrator or
other person to present
or request the
information; and
(bb) extend the
period for
consideration of the
application to a date
not later than 90 days
after the date of the
order.
(iii) No prejudice.--The failure of
the Administrator to make a
determination under subparagraph (A)
shall not be considered to be a
disapproval of the application.
(C) Public comment.--The Administrator
shall provide for public notice and an
opportunity to comment on a decision to approve
an application under this subsection.
(D) Resubmission of application.--If the
Administrator disapproves an application under
paragraph (2), the State may resubmit the
application at any time after receiving the
notice of disapproval.
(E) No additional terms or conditions.--The
Administrator shall not impose any term or
condition on the approval of an application
that meets the requirements stated in paragraph
(2) (except a requirement that any technical
deficiencies in the application be corrected).
(F) Judicial review.--Approval or
disapproval of an application or resubmitted
application shall be considered final agency
action subject to judicial review under section
113(b).
(4) Expedited authorization.--
(A) Pilot program.--
(i) In general.--Notwithstanding
paragraph (1), the Administrator shall
provide an expedited process for the
evaluation of the applications of not
fewer than 6 States qualified for
authorization under this section.
(ii) Criteria for approval.--Not
later than 180 days after the date of
enactment of this section, the
Administrator shall publish criteria,
in accordance with paragraph (2), for
approval of an application for
expedited authorization.
(iii) Approval and disapproval.--An
application submitted by a State
identified under subparagraph (B) on or
before the last day of the 12-month
period beginning on the date of
enactment of this section shall be
deemed to be approved on the last day
of the 180-day period beginning on the
date on which the application is
submitted unless, on or before that
day, the Administrator publishes in the
Federal Register an explanation why the
State does not meet the criteria for
authorization established under this
section.
(iv) Report to congress.--Not later
than 3 years after the date of
enactment of this section, the
Administrator shall submit to Congress
a report on the status of any
facilities for which a State has
received authorization under this
subparagraph.
(B) Permanent program.--
(i) In general.--Not later than 3
years after the date of the enactment
of this section, based on experience
gained in the pilot program under
subparagraph (A), the Administrator
shall promulgate a regulation providing
criteria for expedited authorization of
States under this section.
(ii) Requirements.--The regulation
under clause (i) shall provide for
notice and opportunity for public
comment and a strict schedule for
consideration and approval or
disapproval of an application.
(d) Delegation of Authority.--
(1) In general.--Pursuant to an approved State
application, the Administrator shall delegate authority
to perform 1 or more delegable authorities with respect
to 1 or more non-Federal listed facilities in the
State.
(2) Identification of delegable Authorities.--
(A) In general.--Not later than 1 year
after the date of enactment of this section,
the President shall by regulation identify all
of the authorities of the Administrator that
shall be included in a delegation of any
category of delegable authority described in
subsection (a)(2).
(B) Limitation.--The Administrator shall
not identify a nondelegable authority for
inclusion in a delegation of any category of
delegable authority.
(C) Enforcement authorities.--A State
seeking a delegation under this subsection--
(i) in addition to meeting the
requirements of paragraph (3), shall
demonstrate that the State''s
enforcement authorities are
substantially equivalent to the
enforcement authorities under this Act;
and
(ii) shall use the State''s
enforcement authorities in carrying out
delegable authorities.
(3) Application.--An application under paragraph
(1) shall--
(A) identify each non-Federal listed
facility for which delegation is requested;
(B) identify each delegable authority that
is requested to be delegated for each non-
Federal listed facility for which delegation is
requested; and
(C) include such information and
documentation as the Administrator may require
to enable the Administrator to determine
whether and to what extent--
(i) the State has adequate
financial and personnel resources,
organization, and expertise to
implement, administer, and enforce a
hazardous substance response program;
(ii) the State will implement the
delegated authorities in a manner that
is protective of human health and the
environment; and
(iii) the State agrees to exercise
its delegated authorities to require
that persons that are potentially
liable under section 107(a), to the
extent practicable, perform and pay for
the response actions.
(4) Action by the administrator.--
(A) In general.--Not later than 120 days
after receiving an application from a State
(unless the State agrees to a greater length of
time for the Administrator to make a
determination), the Administrator shall--
(i) issue a notice of approval of
the application (including approval or
disapproval regarding any or all of the
facilities with respect to which a
delegation of authority is requested or
with respect to any or all of the
authorities that are requested to be
delegated); or
(ii) if the Administrator
determines that the State does not meet
1 or more of the criteria under
paragraph (3), issue a notice of
disapproval, including an explanation
of the basis for the determination.
(B) Failure to act.--
(i) In general.--If the
Administrator does not make a
determination under subparagraph (A)
with respect to an application on or
before the last day of the 120-day
period specified in that subparagraph,
any person may bring an action, without
regard to the notice requirement of
section 310(d)(1), to compel the
Administrator to make a determination.
(ii) Relief.--In an action under
clause (i)(I)--
(I) the court shall order
the Administrator to approve or
disapprove the application
within 30 days after the date
of the order; or
(II) if the Administrator
or any other person interested
in the application contends
that action on the application
should be delayed pending
consideration of additional
information not contained in
the application itself or in
comments submitted regarding
the application--
(aa) remand the
application to the
Administrator only if
the court finds good
cause for the failure
of the Administrator or
other person to present
or request the
information; and
(bb) extend the
period for
consideration of the
application to a date
not later than 90 days
after the date of the
order.
(iii) No prejudice.--The failure of
the Administrator to make a
determination under subparagraph (A)
shall not be considered to be a
disapproval of the application.
(C) Public comment.--The Administrator
shall provide public notice and an opportunity
for comment on an application under this
subsection.
(D) Resubmission of application.--If the
Administrator disapproves an application under
paragraph (1), the State may resubmit the
application at any time after receiving the
notice of disapproval.
(E) No additional terms or conditions.--The
Administrator shall not impose any term or
condition on the approval of an application
that meets the requirements stated in paragraph
(2) (except a requirement that any technical
deficiencies in the application be corrected).
(E) Judicial review.--Approval or
disapproval of an application or resubmitted
application shall be considered final agency
action subject to judicial review under section
113(b).
(4) Delegation agreement.--On approval of a
delegation of authority under this section, the
Administrator and the delegated State shall enter into
a delegation agreement that identifies each category of
delegable authority that is delegated with respect to
each delegated facility.
(e) Performance of Transferred Responsibilities.--
(1) In general.--A State to which responsibility is
transferred under subsection (c) or (d) shall have sole
authority (except as provided in subsection (f)) to
perform the transferred responsibility.
(2) Compliance with act.--A delegated State shall
implement each applicable provision of this Act
(including regulations and guidance issued by the
Administrator) so as to perform each delegated
authority with respect to a delegated facility in the
same manner as would the Administrator with respect to
a facility that is not a delegated facility.
(f) Retained Federal Authorities.--
(1) Withdrawal of transfer of responsibility.--
(A) In general.--If at any time the
Administrator finds that contrary to the terms
of an approved application under subsection (c)
or (d), a State to which responsibility at a
non-Federal listed facility has been
transferred under this section--
(i) lacks the required financial
and personnel resources, organization,
or expertise to administer and enforce
the transferred responsibilities;
(ii) does not have adequate legal
authority to perform the transferred
responsibilities;
(iii) is failing to materially
carry out the State''s transferred
responsibilities; or
(iv) is failing to operate its
State cleanup program or exercise
transferred responsibility in such a
manner as to be protective of human
health and the environment as required
under section 121;
the Administrator may withdraw the transfer of
responsibility after providing notice and
opportunity to correct deficiencies under
subparagraph (B).
(B) Notice and opportunity to correct.--If
the Administrator proposes to withdraw a
transfer of responsibility for any or all non-
Federal listed facilities, the Administrator
shall give the State written notice and allow
the State at least 90 days after the date of
receipt of the notice to correct the
deficiencies cited in the notice.
(C) Failure to correct.--If the
Administrator finds that the deficiencies have
not been corrected within the time specified in
a notice under subparagraph (B), the
Administrator may withdraw the transfer of
responsibility after providing public notice
and opportunity for comment.
(D) Judicial review.--A decision of the
Administrator to withdraw a transfer of
responsibility shall be subject to judicial
review under section 113(b).
(2) No effect on certain authorities.--Nothing in
this section affects the authority of the Administrator
under this Act to--
(A) perform a response action at a facility
listed on the National Priorities List in a
State to which a transfer of responsibility has
not been made under this section or at a
facility not included in a transfer of
responsibility; or
(B) perform any element of a response
action with respect to a non-Federal listed
facility that is not included among the
responsibilities transferred to a State with
respect to the facility.
(3) Federal removal authority.--
(A) Notice.--Before performing an emergency
removal action under section 104 at a non-
Federal listed facility at which responsibility
has been transferred to a State, the
Administrator shall notify the State of the
Administrator''s intention to perform the
removal.
(B) State action.--If, within 48 hours
after receiving a notification under
subparagraph (A), the State notifies the
Administrator that the State intends to take
action to perform an emergency removal at the
non-Federal listed facility, the Administrator
shall not perform the emergency removal action
unless the Administrator determines that the
State has failed to act within a reasonable
period of time to perform the emergency
removal.
(C) Public health or environmental
emergency.--If the Administrator finds that any
release or threat of release constitutes a
public health or environmental emergency under
section 104(a)(4) the Administrator may act
immediately notwithstanding subparagraph (B).
(4) Federal enforcement authority.--
(A) In general.--In the case of a non-
Federal listed facility at which--
(i) there has been a transfer of
responsibility under this section; and
(ii) there is a release or
threatened release of a hazardous
substance, pollutant, or contaminant;
neither the President nor any other person may
use any authority under this Act to take an
administrative or judicial enforcement action
or to bring a private civil action against any
person regarding any matter that is within the
scope of the transfer of responsibility, except
as provided in subparagraph (B).
(B) Exceptions.--The President may bring an
administrative or judicial enforcement action
with respect to a non-Federal listed facility
under this Act if--
(i) the State requests that the
President provide assistance in the
performance of a response action and
that the enforcement bar in
subparagraph (A) be lifted; or
(ii) after providing the Governor
of the State notice and a reasonable
opportunity to cure, the
Administrator--
(I) makes a determination
that the State is unwilling or
unable to take appropriate
action at a facility to respond
to a release that constitutes a
public health or environmental
emergency; and
(II) obtains a declaratory
judgment in United States
district court that the State
has failed to make reasonable
progress in performance of a
remedial action at the
facility.
(C) Action for contribution.--Subparagraph
(A) does not preclude an action for
contribution for response costs incurred by any
person.
(5) Cost recovery.--
(A) Recovery by a transferee state.--Of the
amount of any response costs recovered from a
responsible party by a State that is
transferred responsibility at a non-federal
listed facility under section 107--
(i) 25 percent of the amount of any
Federal response cost recovered with
respect to a facility, plus an amount
equal to the amount of response costs
incurred by the State with respect to
the facility, may be retained by the
State; and
(ii) the remainder shall be
deposited in the Hazardous Substances
Superfund established under subchapter
A of chapter 98 of the Internal Revenue
Code of 1986.
(B) Recovery by the administrator.--
(i) In general.--The Administrator
may take action under section 107 to
recover response costs from a
potentially responsible party for a
non-federal listed facility for which
responsibility is transferred to a
State if--
(I) the State notifies the
Administrator in writing that
the State does not intend to
pursue action for recovery of
response costs under section
107 against the potentially
responsible party; or
(II) the State fails to
take action to recover response
costs within a reasonable time
in light of applicable statutes
of limitation.
(ii) Notice.--If the Administrator
proposes to commence an action for
recovery of response costs under
section 107, the Administrator shall
give the State written notice and allow
the State at least 90 days after
receipt of the notice to commence the
action.
(iii) No further action.--If the
Administrator takes action against a
potentially responsible party under
section 107 relating to a release from
a non-Federal listed facility after
providing a State notice under clause
(ii), the State may not take any other
action for recovery of response costs
relating to that release under this Act
or any other Federal or State law.
(6) Delisting of national priority list
facilities.--
(A) Delisting request.--A State may request
that the Administrator remove from the National
Priorities List all or part of a facility to
which responsibility has been transferred to
the State under this section.
(B) Action by the administrator.--The
Administrator shall--
(i) promptly consider a request
under subparagraph (A); and
(ii) remove the facility or part of
the facility from the National
Priorities List unless the delisting
would be inconsistent with a
requirement of this Act.
(C) Denial of request.--If the
Administrator decides to deny a request for
delisting under subparagraph (A), the
Administrator shall publish the decision in the
Federal Register with an explanation of the
reasons for the denial.
(D) Report.--At the end of each calendar
year, the Administrator shall submit to
Congress a report describing actions taken
under this paragraph during the year.
(g) Funding.--
(1) In general.--The Administrator shall provide
grants to or enter into contracts or cooperative
agreements with States to which responsibility has been
transferred under this section.
(2) No claim against fund.--Notwithstanding any
other law, funds to be granted under this subsection
shall not constitute a claim against the Fund or the
United States.
(3) Insufficient funds available.--If funds are
unavailable in any fiscal year to satisfy all
commitments made under this section by the
Administrator, the Administrator shall have sole
authority and discretion to establish priorities and to
delay payments until funds are available.
(4) Amounts of funding.--
(A) In general.--Once every 3 years with
respect to subparagraphs (B) and (C), and once
each year with respect to subparagraph (D), the
Administrator and the State shall determine the
amount of Federal funding that will be required
for the State to undertake the responsibilities
under this section.
(B) Administrative costs.--
(i) In general.--The Administrator
shall provide funding for
administration of the State response
program in place of the Federal program
under an authorization under subsection
(c) or a delegation under subsection
(d), based on the number of facilities
and the activities at the facilities
for which the State has received
delegation or authorization.
(ii) Amount of funding.--
(I) Calculation based on
fixed costs.--The amount of
funding under clause (i) shall
be based on a calculation of
the fixed costs of program
administration.
(II) Minimum amount.--In
the case of no State shall the
amount of funding be less than
the funding levels necessary
for Federal administration of
the same activities.
(C) Preconstruction costs.--
(i) In general.--The Administrator
and a State shall agree on the amount
of Federal funding for all
preconstruction activities for which
the State has received an authorization
under subsection (c) or delegation
under subsection (d).
(ii) Amount of funding.--The amount
of funding under clause (i) may be
based on anticipated outputs and
standard pricing factors.
(D) Remedy construction costs.--The
Administrator shall provide funding for remedy
construction at a site for which the State has
an authorization under subsection (c) or
delegation under subsection (d) if--
(i) the remedial design for the
facility is complete; and
(ii) the State certifies that--
(I) there are no
financially viable potentially
responsible parties capable of
performing the response action;
or
(II) enforcement measures
have been attempted and the
remedial action would be
delayed without Federal
funding.
(5) Prioritization process.--
(A) In general.--In a process for
allocating funds among facilities, the
Administrator shall include all facilities that
are the subject of a State response program
under an authorization under subsection (c) or
delegation under subsection (d).
(B) Consideration.--In allocating funding
among facilities, the Administrator--
(i) shall not take into
consideration whether a listed facility
is the subject of a State response
program under an authorization under
subsection (c) or a delegation under
subsection (d); and
(ii) shall apply the same
decisionmaking criteria and factors
(including the need to maintain
activity at facilities at which
construction has been commenced) in the
same manner to all facilities.
(C) Publication of list.--The Administrator
shall publish annually a list of facilities at
which response actions are proposed to be taken
and the funding amounts for each such response
action.
(6) Use of funds.--
(A) Pre-remedial funds.--A State may use
funds provided under this subsection to take
any actions or perform any duties necessary to
implement any authorization or delegation that
the State has received under subsection (c) or
(d).
(B) Remedy construction funds.--A State
shall use funds provided under this subsection
to construct the remedy at the facility for
which funding is provided.
(7) Limitation on reimbursement for removal actions
under section 104.--Reimbursement to a State for
exercising any removal authority under subsection (c)
or (d) shall be limited to facilities for which removal
authority is specifically delegated or authorized under
those subsections, except as provided in section 123.
(8) Permitted use of grant funds.--A State to which
responsibility has been transferred under this section
may use grant funds, in accordance with this Act and
the National Contingency Plan, to take any action or
perform any duty necessary to implement the authority
delegated to the State under this section.
(9) Cost share.--A State receiving a grant under
this subsection--
(A) shall provide an assurance that the
State will pay any amount required under
section 104(c)(3); and
(B) may not use grant funds to pay any
amount required under section 104(c)(3).
(10) Certification of use of funds.--
(A) In general.--Not later than 1 year
after the date on which a State receives funds
under this subsection, and annually thereafter,
the Governor of the State shall submit to the
Administrator--
(i) a certification that the State
has used the funds in accordance with
the requirements of this Act and the
National Contingency Plan; and
(ii) information describing the
manner in which the State used the
funds.
(B) Review of use of funds.--
(i) In general.--The Administrator
shall review a certification submitted
by the Governor under subparagraph (A)
not later than 120 days after the date
of its submission.
(ii) Finding of use of funds
inconsistent with this act.--If the
Administrator finds that funds were
used in a manner that is inconsistent
with this Act, the Administrator shall
notify the Governor in writing not
later than 120 days after receiving the
Governor''s certification.
(iii) Explanation.--Not later than
30 days after receiving a notice under
clause (ii), the Governor shall--
(I) explain why the finding
of the Administrator is in
error; or
(II) explain to the
satisfaction of the
Administrator how any
misapplication or misuse of
funds will be corrected.
(iv) Failure to explain.--If the
Governor fails to make an explanation
under clause (iii) to the satisfaction
of the Administrator, the Administrator
may request reimbursement of such
amount of funds as the Administrator
finds was misapplied or misused.
(v) Repayment of funds.--If the
Administrator fails to obtain
reimbursement from the State within a
reasonable period of time, the
Administrator may, after 30 days''
notice to the State, bring a civil
action in United States district court
to recover from the transferee State
any funds that were advanced for a
purpose or were used for a purpose or
in a manner that is inconsistent with
this Act.
(C) Regulations.--Not later than 1 year
after the date of enactment of this section,
the Administrator shall promulgate a regulation
describing with particularity the information
that a State shall be required to provide under
subparagraph (A)(ii).
(h) Cooperative Agreements.--Nothing in this section
affects the authority of the Administrator under section
104(d)(1) to enter into a cooperative agreement with a State, a
political subdivision of a State, or an Indian Tribe to carry
out actions under section 104.
SEC. 131. FACILITY-SPECIFIC RISK EVALUATIONS.
(a) In General.--The goal of a facility-specific risk
evaluation performed under this Act is to provide informative
and understandable estimates that neither minimize nor
exaggerate the current or potential risk posed by a facility.
(b) Risk Evaluation Principles.--
(1) In general.--A facility-specific risk
evaluation shall--
(A)(i) use chemical-specific and facility-
specific data in preference to default
assumptions whenever it is practicable to
obtain such data; or
(ii) if it is not practicable to obtain
such data, use a range and distribution of
realistic and scientifically supportable
default assumptions;
(B) ensure that the exposed population and
all current and potential pathways and patterns
of exposure are evaluated;
(C) consider the current or reasonably
anticipated future use of the land and water
resources in estimating exposure; and
(D) consider the use of institutional
controls that comply with the requirements
stated in section 121(b)(4).
(2) Criteria for use of science.--Any chemical-
specific and facility-specific data or default
assumptions used in connection with a facility-specific
risk evaluation shall be consistent with the criteria
for the use of science in decisionmaking stated in
subsection (e).
(3) Institutional controls.--In conducting a risk
assessment to determine the need for remedial action,
the President may consider only institutional controls
that are in place at the facility at the time at which
the risk assessment is conducted.
(c) Uses.--A facility-specific risk evaluation shall be
used to--
(1) determine the need for remedial action;
(2) evaluate the current and potential hazards,
exposures, and risks at the facility;
(3) screen out potential contaminants, areas, or
exposure pathways from further study at a facility;
(4) evaluate the protectiveness of alternative
remedial actions proposed for a facility;
(5) demonstrate that the remedial action selected
for a facility is capable of protecting human health
and the environment considering the current and
reasonably anticipated future use of the land and water
resources; and
(6) establish protective concentration levels if no
applicable requirement under section 121(a)(1)(C)
exists or if an otherwise applicable requirement is not
sufficiently protective of human health and the
environment under section 121(a)(1)(B).
(d) Risk Communication Principles.--In carrying out this
section, the President shall ensure that the presentation of
information on public health effects is comprehensive,
informative, and understandable. The document reporting the
results of a facility-specific risk evaluation shall specify,
to the extent practicable--
(1) each population addressed by any estimate of
public health effects;
(2) the expected risk or central estimate of risk
for the specific populations;
(3) each appropriate upper-bound or lower-bound
estimate of risk;
(4) each significant uncertainty identified in the
process of the assessment of public health effects and
research that would assist in resolving the
uncertainty; and
(5) peer-reviewed studies known to the President
that support, are directly relevant to, or fail to
support any estimate of public health effects and the
methodology used to reconcile inconsistencies in the
scientific data.
(e) Use of Science in Decisionmaking.--In carrying out this
section, the President shall use--
(1) the best available peer-reviewed science and
supporting studies conducted in accordance with sound
and objective scientific practices; and
(2) data collected by accepted methods or best
available methods (if the reliability of the method and
the nature of the decision justifies use of the data).
(f) Regulations.--Not later than 18 months after the date
of enactment of this section, the President shall issue a final
regulation implementing this section.
SEC. 132. PRESUMPTIVE REMEDIAL ACTIONS.
(a) In General.--In order to streamline the remedial action
selection process, the Administrator shall establish
presumptive remedial actions that--
(1) identify preferred technologies and approaches
(which may include as an element institutional and
engineering controls, if appropriate) for common
categories of facilities; and
(2) identify, as appropriate, site categorization
methodologies for those categories of facilities.
(b) Presumptive Remedial Actions.--
(1) In general.--The Administrator shall establish
presumptive remedial actions that are technically
practicable, cost-effective, and demonstrated methods
to protect human health and the environment under this
Act.
(2) Matters to be taken into account.--In
establishing a presumptive remedial action, the
Administrator shall take into account the goals stated
in section 121(a)(1), the factors stated in section
121(a)(3), and the rules stated in section 121(b).
(3) Procedure; judicial review.--The identification
of categories of facilities and site categorization
methodologies and the establishment of presumptive
remedial actions under this section shall not be
subject to--
(A) the rulemaking procedure of section 553
of title 5, United States Code; or
(B) judicial review.
(c) Use of Presumptive remedial actions.--In appropriate
circumstances, the Administrator may select a presumptive
remedial action--
(1) from among technologies and approaches
identified under subsection (a)(1); or
(2) based on only the site characterization
methodologies identified under subsection (a)(2),
without consideration of technologies, approaches, or
methodologies that have not been identified for that
category of facility in the list prepared under
subsection (d).
(d) Notice and Periodic Review.--
(1) Initial list.--Not later than 1 year after the
date of enactment of this section, the Administrator
shall make available to the public a list of
presumptive remedial actions identified under
subsection (a) that are available for specific
categories of facilities, and solicit information to
assist the Administrator in modifying or adding to the
list, as appropriate.
(2) Updated lists.--At least once every 3 years,
the Administrator shall solicit information from the
public for the purpose of updating presumptive remedial
actions, as appropriate, to incorporate emerging
technologies, approaches, or methodologies or designate
additional categories of facilities.
SEC. 133. AMENDMENTS TO THE NATIONAL CONTINGENCY PLAN.
(a) In General.--In order to reflect the amendments made by
the Superfund Cleanup Acceleration Act of 1998 (including
subsections (b) and (c) of section 134 and section 132), not
later than 180 days after the date of enactment of this
section, the President shall--
(1) revise the National Contingency Plan; and
(2) as appropriate, issue and periodically update
Agency guidance.
SEC. 134. REMEDIAL ACTION PLANNING AND IMPLEMENTATION.
(a) Accelerated Response Generally.--
(1) In general.--To the extent practicable, and
consistent with requirements in section 121, the
President shall seek to expedite implementation of
response actions and reduce transaction costs by
implementing measures to--
(A) accelerate and increase the efficiency
of the remedy selection and implementation
processes;
(B) tailor the level of oversight of
performance of a response action by a
potentially responsible party or group of
potentially responsible parties considering the
circumstances of the response action; and
(C) streamline the processes for submittal,
review, and approval of plans and other
documents.
(b) Acceleration of Investigative Activities and Response
Actions.--
(1) Phasing of investigative and response
activities.--The President shall seek to expedite
protection of human health and the environment and
completion of response actions in an efficient and
cost-effective manner through appropriate phasing and
integration of investigative and response activities.
(2) Use of results of initial investigations.--The
results of initial investigations of a facility shall
be used, as appropriate--
(A) to focus subsequent data collection
efforts in order to characterize the nature and
extent of contamination at the facility in an
efficient and cost-effective manner; or
(B) to develop and support multiple phases
of a response action, as appropriate.
(3) Early response actions.--
(A) Implementation.--An early response
action under section 104 or 106 shall be
implemented, to the extent practicable, to--
(i) prevent exposure to hazardous
substances, pollutants, and
contaminants; and
(ii) prevent further migration of
hazardous substances, pollutants, or
contaminants.
(B) Use of results.--The results of an
early response action shall be used to--
(i) further characterize the nature
and extent of contamination at the
facility; and
(ii) provide information needed to
evaluate and select any additional
appropriate response actions that are
needed to protect human health and the
environment.
(C) Compliance with requirements.--An early
response action shall--
(i) meet the requirements of this
Act (including the requirements for
public participation) and
(ii) to the extent practicable,
contribute to the efficient performance
of any long-term remedial action with
respect to the release or threatened
release concerned.
(c) Participation in the Response Action Process by
Potentially Responsible Parties.--
(1) Requirements.--When the President determines
under paragraph (5) that a response action will be
performed properly and promptly by a potentially
responsible party or group of potentially responsible
parties in accordance with the requirements of this
Act, the President may allow the potentially
responsible party or group of potentially responsible
parties to perform the response action in accordance
with this section, section 106, or section 122.
(2) Performance of response action.--The President
may authorize performance of a response action by a
potentially responsible party or group of potentially
responsible parties only if--
(A) the President determines that the
potentially responsible party or group of
potentially responsible parties is qualified to
perform the response action; and
(B) the potentially responsible party or
group of potentially responsible parties agrees
to reimburse the Fund for any cost incurred by
the President in overseeing and reviewing the
performance of the response action by the
potentially responsible party or group of
potentially responsible parties, including the
costs of contracting or arranging for a
qualified person to assist the President in
conducting the oversight and review.
(3) Oversight of response actions.--The President
may tailor the level of oversight that will accompany
performance of a response action by the potentially
responsible party or group of potentially responsible
parties based on factors including the factors set
forth in paragraph (5).
(4) Response action activities.--The President may
authorize a potentially responsible party or group of
potentially responsible parties to perform removal and
remedial actions, including--
(A) remedial investigations (including risk
assessments);
(B) feasibility studies;
(C) preparation of draft proposed remedial
action plans;
(D) remedial designs;
(E) operation and maintenance;
(F) maintenance of institutional controls;
(G) studies that the President determines
are necessary for the President to conduct
review under section 135(c)(2); and
(H) any response action that the President
determines is required as a result of the
review under of section 135(c)(2).
(5) Oversight factors.--In determining for the
purposes of paragraph (1) whether a potentially
responsible party or group of potentially responsible
parties will perform a response action properly and
promptly in accordance with requirements of this Act,
and in determining the appropriate level of oversight
required for performance by a potentially responsible
party or group of potentially responsible parties of a
response action, the President shall consider factors
that include--
(A) the technical and financial capability
of the potentially responsible party or group
of potentially responsible parties;
(B) the willingness of the potentially
responsible party or group of potentially
responsible parties to complete performance of
the response action within the period of time
prescribed by the President.
(C) the assurance of the potentially
responsible party or group of potentially
responsible parties that it will comply with
the requirements of this Act, the National
Contingency Plan, and guidelines issued by the
Administrator;
(D) the level of effort that the
Environmental Protection Agency has expended in
reviewing performance by the potentially
responsible party or group of potentially
responsible parties in other instances
regulated by the Agency;
(E) the history of cooperation of the
potentially responsible party or group of
potentially responsible parties in other Agency
actions;
(F) the level of concern of the local
community;
(G) the degree of technical complexity or
uncertainty associated with the response action
to be performed; and
(H) the resources of the Environmental
Protection Agency.
(d) Draft Proposed Remedial Action Plans.--
(1) In general.--The Administrator shall issue
guidelines identifying the contents of a draft proposed
remedial action plan, which shall include, at a
minimum--
(A) a brief description of the remedial
alternatives that were analyzed, including the
respective capital costs, operation and
maintenance costs, and estimated present worth
costs of the remedial alternatives;
(B) a recommended remedial action
alternative; and
(C) a summary of information relied on to
make the recommendation, including a brief
description of site risks.
(2) Administrative record.--Nothing in this
paragraph shall affect or impede the establishment by
the President of an administrative record under section
113(k).
(e) Remedy Review Board.--
(1) Establishment.--
(A) In general.--In order to promote cost-
effective remedy selection decisions, the
Administrator shall establish and appoint the
members of at least 1 remedy review board
consisting of a balance of technical and policy
experts within the Environmental Protection
Agency and other Federal and State agencies
with responsibility for remediating
contaminated facilities.
(B) State responsibility.--If
responsibility for the conduct of a response
action at a facility has been transferred to a
State under section 130, technical and policy
experts from State agencies with responsibility
for remediating contaminated facilities shall
constitute not less than \1/3\ of the
membership of the remedy review board that
reviews a draft proposed remedial action plan
for the facility.
(2) Procedures and criteria.--
(A) Procedures.--Not later than 180 days
after the date of enactment of this section,
the Administrator shall promulgate a regulation
that establishes procedures for the operation
of remedy review board, including cost-based or
other appropriate criteria for determining
which draft proposed remedial action plans will
be eligible for review by a remedy review
board.
(B) Criteria.--
(i) Differing criteria.--The
Administrator may develop different
criteria under subparagraph (A) for
different categories of facilities.
(ii) Proportion of facilities
eligible for review.--Application of
the criteria under subparagraph (A)
shall, to the extent practicable,
result in the eligibility for review of
not less than an annual average of \1/
3\ of the number of draft proposed
remedial action plans prepared and
ready for issuance for public comment.
(3) Review.--
(A) Timing.--Subject to paragraph (4),
before issuance for public comment, a draft
proposed remedial action plan that meets the
criteria under paragraph (2) (B) shall be
submitted to the remedy review board.
(B) No review.--A remedy review board shall
not review a remedy that meets the criteria
under paragraph (2) (B) if the Administrator
determines that review by the remedy review
board would result in an unacceptable delay in
taking measures to achieve protection of human
health or the environment.
(4) Notice and comment.--
(A) Notice.--The Administrator shall give
interested parties (including representatives
of the State and local community in which the
facility is located) adequate notice of the
submission of a draft proposed remedial action
plan to the remedy review board and an
opportunity to comment.
(B) Comment.--
(i) In general.--Potentially
responsible parties that are
participating in the performance of a
remedial investigation and feasibility
study shall be permitted to submit
comments on a draft remedial action
plan to a remedy review board and be
provided a reasonable opportunity to
meet with the remedy review board.
(ii) Length of submissions.--Any
limitation on the length of a
submission established by the
Administrator shall be rationally
related to the level of detail
contained in the draft proposed plan.
(5) Recommendations.--
(A) In general.--A remedy review board
shall provide recommendations to the
Administrator.
(B) Considerations.--In preparing a
recommendation, a remedy review board shall
consider--
(i) whether the proposed remedial
action meets the requirements of
section 121;
(ii) the nature of the facility;
(iii) the risks posed by the
facility;
(iv) the opinions of the affected
Environmental Protection Agency
regional administrator and State
government regarding the proposed
remedial action;
(v) the quality and reasonableness
of the cost estimates; and
(vi) any other relevant factors
that the Administrator considers
appropriate.
(C) EPA consideration of recommendations.--
(i) Substantial weight.--In
determining whether to modify a draft
proposed remedial action plan, the
Administrator shall give substantial
weight to the recommendations of a
remedy review board.
(ii) Decision not to follow
recommendation.--A decision by the
Administrator not to follow a
recommendation of the remedy review
board shall not, by itself, render a
decision arbitrary and capricious.
(f) Approval of Draft Proposed Remedial Action Plan.--The
President may approve a draft proposed remedial action plan
prepared by a potentially responsible party or group of
potentially responsible parties that the President has
determined to be qualified under subsection (c). If the
President approves the draft proposed remedial action plan, the
President may treat the document as the President''s proposed
plan, and provide it to the public for comment under section
117(a).
SEC. 135. COMPLETION OF PHYSICAL CONSTRUCTION AND DELISTING.
(a) In General.--
(1) Proposed notice of completion and proposed
delisting.--Not later than 180 days after the
completion by the President of physical construction
necessary to implement a response action at a facility,
or not later than 180 days after receipt of a notice of
such completion from the implementing party, the
President shall publish a notice of completion and
proposed delisting of the facility from the National
Priorities List in the Federal Register and in a
newspaper of general circulation in the area where the
facility is located.
(2) Physical construction.--For the purposes of
paragraph (1), physical construction necessary to
implement a response action at a facility shall be
considered to be complete when--
(A) construction of all systems,
structures, devices, and other components
necessary to implement a response action for
the entire facility has been completed in
accordance with the remedial design plan; or
(B) no construction, or no further
construction, is expected to be undertaken.
(3) Construction complete before enactment.--Any
facility at which physical construction necessary to
implement a response action has been completed before
the date of enactment of this section shall qualify for
a proposed delisting under paragraph (1), if the
procedures set out in paragraph (1) for seeking a
proposal to delist the facility are followed.
(4) Comments.--The public shall be provided 30 days
in which to submit comments on the notice of completion
and proposed delisting.
(5) Final notice.--
(A) In general.--Not later than 60 days
after the end of the comment period, or such
extended period as may be determined under
subparagraph (B), the President shall--
(i) issue a final notice of
completion and delisting or a notice of
withdrawal of the proposed notice until
the implementation of the remedial
action is determined to be complete;
and
(ii) publish the notice in the
Federal Register and in a newspaper of
general circulation in the area where
the facility is located.
(B) Extension of time.--The President may
extend the 60-day period for issuing and
publishing a final notice under subparagraph
(A) if the President determines, for good
cause, that additional time is needed, and
publishes an explanation of the need for more
time in the Federal Register and in a newspaper
of general circulation in the area where the
facility is located.
(6) Effect of delisting.--The delisting of a
facility shall have no effect on--
(A) liability allocation requirements or
cost-recovery provisions otherwise provided in
this Act;
(B) any liability of a potentially
responsible party or the obligation of any
person to provide continued operation and
maintenance;
(C) the authority of the President to make
expenditures from the Fund relating to the
facility; or
(D) the enforceability of any consent order
or decree relating to the facility.
(b) Certification.--A final notice of completion and
delisting shall include a certification by the President that
the facility has met all of the requirements of the remedial
action plan (except requirements for continued operation and
maintenance).
(c) Operation and Maintenance.--The need to perform
continued operation and maintenance at a facility shall not be
the sole basis for delaying delisting of the facility or
issuance of the certification if performance of operation and
maintenance is subject to a legally enforceable agreement,
order, or decree.
SEC. 136. REMEDY REVIEW PROCESS.
(a) Definition of Remedy Review Board.--In this section,
the term ``remedy review board'' means a remedy review board
established under section 134(e).
(b) Petitions for Remedy Update.--
(1) Filing.--In the case of a facility or operable
unit with respect to which a record of decision was
signed before the date of enactment of this section and
that meets the criteria of paragraph (3), the
implementor of the record of decision, not later than 1
year after the date of enactment of this section, may
submit to a remedy review board a petition to update
the record of decision to incorporate in the remedial
action at the facility or operable unit an alternative
technology, methodology, or approach.
(2) Provision of copies.--The implementor shall
provide a copy of the petition to the State, affected
Indian Tribes, local governments, any applicable
community action group, and the recipient of any
technical assistance grant.
(3) Criteria for acceptance for review.--
(A) In general.--A remedy review board may
accept for review a petition for remedy update
if the implementor demonstrates that--
(i) the alternative remedial action
proposed in the petition meets the
requirements of section 121;
(ii) the Governor of the State in
which the facility is located does not
object to consideration of the
petition;
(iii) the record of decision--
(I) was issued before
September 27, 1996; or
(II) in the case of a
record of decision involving
primarily ground water
extraction and treatment
remedies, was issued before
October 1, 1993; and
(iv)(I) the record of decision has
an estimated implementation cost in
excess of $30,000,000; or
(II) the record of decision with an
estimated implementation cost of
between $5,000,000 and $30,000,000, and
the alternative remedial action
achieves a cost saving of at least 50
percent of the total costs of the
record of decision.
(B) Waiver of cost threshold.--With the
concurrence of the Administrator, a remedy
review board may approve a petition that does
not meet the cost threshold of subparagraph
(A)(iv).
(4) Prioritization of petitions.--
(A) In general.--A remedy review board
shall prioritize its decision to accept
petitions for remedy update based on the
criteria of paragraph (3) and the potential
cost savings of the proposed remedy update.
(B) Considerations.--When factoring cost
savings into the prioritization of petitions
for remedy update, a remedy review board shall
consider--
(i) the gross cost saving estimated
for the proposed remedy update; and
(ii) the proportion of total remedy
costs that the saving would represent.
(c) Review Factors.--In formulating a recommendation, a
remedy review board shall consider factors that include--
(1) the continued relevance of the exposure
scenarios and risk assumptions in the original remedy;
(2) the effectiveness of the original cleanup
strategy in light of any new information or changed
circumstances at the facility;
(3) the appropriateness and attainability of the
original cleanup goals;
(4) the ability to enhance the original cleanup
strategy through the application of new technologies,
methodologies, or approaches;
(5) the level and degree of community, State,
tribal, and potentially responsible parties involvement
and consensus in selecting the original cleanup
strategy;
(6) the reasonableness of the original cost
estimates and whether the costs remain justifiable and
cost-effective;
(7) the consistency of the original cleanup
strategy with similar remedies selected by the Agency;
and
(8) the effectiveness of the original cleanup
strategy in meeting the cleanup goals.
(d) Recommendations.--Not later than 180 days after the
acceptance of a petition for remedy update, a remedy review
board shall--
(1) submit to the Administrator a written
recommendation with respect to the petition; and
(2) provide responses to all comments submitted
during the review process with respect to the petition.
(e) Consideration of Recommendations.--In deciding whether
to approve a proposed remedy update, the Administrator shall
give substantial weight to the recommendation of a remedy
review board.
(f) Report to Congress.--
(1) In general.--The Administrator shall submit an
annual report to Congress on the Administrator''s
activity in reviewing and modifying records of decision
signed before the date of enactment of this section
(whether or not the records of decision meet the
criteria under subsection (b)(3))--
(A) to apply the amendments made to section
121 by the Superfund Cleanup Acceleration Act
of 1998;
(B) to incorporate new information
regarding science, technology, and site
conditions; or
(C) to improve the cost-effectiveness of
remedial actions.
(2) Contents.--A report under paragraph (1) shall
describe--
(A) the petitions for remedy update
received;
(B) the disposition of the petitions for
remedy update; and
(C) the cost savings, if any, that are
estimated to result from the remedy updates.
(g) Remedial Action Reviews Under Section 121(c).--In
conducting remedial action reviews under section 121(c), the
Administrator should--
(1) give priority consideration to records of
decision that--
(A) were issued before October 1, 1993; and
(B) involve primarily ground water
extraction and treatment remedies for dense,
nonaquaeous phase liquids; and
(2) based on the review factors stated in
subsection (c), make a determination whether a remedy
update is justified.
SEC. 137. ALLOCATION OF LIABILITY FOR CERTAIN FACILITIES.
(a) Definitions.--In this section:
(1) Allocated share.--The term ``allocated share''
means the percentage of responsibility assigned to a
potentially responsible party by the allocator in an
allocation report under subsection (h).
(2) Allocation party.--
(A) In general.--The term ``allocation
party'' means a party, named on a list of
parties issued by the Administrator, that will
be subject to the allocation process under this
section.
(B) Exclusion.--
(i) In general.--The term
``allocation party'' does not include a
person that is qualified for an
exemption under subsection (q), (r), or
(s), but such a person shall be
required to respond to information
requests under subsections (d) and (j).
(ii) Determination of allocation
shares.--Notwithstanding clause (i), an
allocator shall determine the
allocation share of a person that is
qualified for the exemption under
subsection (q) or (s) for the purpose
of determining the orphan share under
section 137(i).
(3) Allocator.--The term ``allocator'' means a
neutral third party retained to conduct an allocation
for a facility under this section.
(4) ADR neutral.--The term ``ADR neutral'' means an
alternative dispute resolution neutral retained to
assist the parties at a facility in resolving a dispute
related to a settlement.
(5) Mandatory allocation facility.--The term
``mandatory allocation facility'' means--
(A) a non-federally owned vessel or
facility listed on the National Priorities List
with respect to which response costs are
incurred after the date of enactment of this
section and at which there are 2 or more
potentially responsive persons (including 1 or
more persons that are qualified for an
exemption under subsection (q), (r), or (s) of
section 107), if at least 1 potentially
responsible person is viable and not entitled
to an exemption under subsection (q), (r), or
(s) of section 107 for which the potentially
responsible parties demonstrate that the
response costs to be incurred after the date of
enactment of this Act will exceed $1,000,000;
(B) a federally owned vessel or facility
listed on the National Priorities List with
respect to which response costs are incurred
after the date of enactment of this section,
and with respect to which 1 or more potentially
responsible parties (other that a department,
agency, or instrumentality of the United
States) are liable or potentially liable if at
least 1 potentially liable party is liable and
not entitled to an exemption under subsection
(q), (r), or (s) of section 107 for which the
potentially responsible parties demonstrate
that the response costs to be incurred after
the date of enactment of this Act will exceed
$1,000,000; and
(C) a codisposal landfill with respect to
which costs are incurred after the date of
enactment of this section.
(6) Orphan share.--The term ``orphan share'' means
the total of the allocated shares determined by the
Administrator and the parties to a negotiation under
subsection (e) or by the allocator under subsection
(i).
(b) Allocations of Responsibility.--
(1) Mandatory allocations.--The Administrator shall
conduct the allocation process under this section for
each mandatory allocation facility.
(2) Requested allocations.--For a facility (other
than a mandatory allocation facility) involving 2 or
more potentially responsible parties, the Administrator
may conduct the allocation process under this section
if the allocation is requested in writing by a
potentially responsible party that has--
(A) incurred response costs with respect to
a response action; or
(B) resolved any liability to the United
States with respect to a response action in
order to assist in allocating shares among
potentially responsible parties.
(3) Orphan share.--An allocation performed at a
vessel or facility identified under paragraph (2) shall
not require payment of an orphan share under subsection
(i) or contribution under subsection (o).
(4) Codisposal landfills.--In determining the order
in which to conduct allocations at facilities
identified under paragraph (1) or (2), the
Administrator shall give priority to allocations at
codisposal landfills.
(5) Excluded facilities.--A facility for which
there was in effect as of the date of enactment of this
section a settlement decree or order that determines
the liability and allocated shares of all potentially
responsible parties with respect to the response action
shall not be considered to be a mandatory allocation
facility for the purposes of paragraph (1).
(6) Limitation of certain facilities.--
(A) In general.--In the case of a mandatory
allocation facility that is the subject of a
judicial or administrative consent decree or
unilateral administrative order under section
106 that was issued, signed, lodged, or entered
on or before February 1, 1998, in which there
may be an orphan share, there shall be no
mandatory allocation process under this section
for the purpose of determining the amount of
the orphan share unless, after the
Administrator rejects a request for mandatory
allocation, a neutral third party determines
that the amount of the orphan share of the
response costs remaining to be incurred can
reasonably be expected to amount to $500,000 or
more.
(B) Presentation to neutral third party.--
Two or more persons subject to a consent decree
or unilateral administrative order described in
subparagraph (A) that seek an allocation
process for the purpose of determining the
amount of the orphan share shall--
(i) nominate, with the approval of
the Administrator, a neutral third
party to make the determination under
subparagraph (A); and
(ii) not later than 30 days after
selection of the neutral third party,
submit to the neutral third party a
written presentation showing the amount
of the orphan share of the response
costs then remaining to be incurred.
(C) Determination.--Not later than 60 days
after the receipt of the presentation under
subparagraph (B), the neutral third party shall
determine the reasonably expected amount of the
orphan share of the response costs remaining to
be incurred.
(D) Conclusiveness of determination.--The
determination of a neutral third party under
subparagraph (C) shall be conclusive on all
persons and shall not be subject to review by
the Administrator or any court.
(E) Cost.--The cost of obtaining a
determination under this paragraph shall be
paid by the person or group of persons seeking
an orphan share allocation.
(F) Scope.--If the requirement of
subparagraph (A) is met, an allocation shall be
performed for the sole purpose of determining
the orphan share under subsection (i)(1). The
allocation shall take into account any monetary
or nonmonetary compromises made by the
Administrator in negotiating the underlying
consent decree. If the allocator under
subsection (i)(1) determines that the amount of
the orphan share of the response costs
remaining to be incurred is less than $500,000,
there shall be no orphan shares provided.
(G) Requested allocations.--A determination
under this paragraph that a mandatory
allocation process shall not be conducted shall
not preclude the conduct of a requested
allocation with the approval of the
Administrator.
(H) Effect of paragraph.--This paragraph
does not limit or otherwise affect the
obligation of any person to implement a
response action as required by a consent decree
or unilateral administrative order.
(7) Scope of allocations.--
(A) In general.--An allocation under this
section shall apply to--
(i) response costs incurred after
the date of enactment of this section,
with respect to a mandatory allocation
facility;
(ii) unrecovered response costs of
the United States incurred before the
date of enactment of this section, with
respect to a mandatory allocation
facility; and
(iii) response costs incurred at a
facility that is the subject of a
requested allocation under paragraph
(2).
(B) Costs incurred before date of
enactment.--With the agreement of the
allocation parties and the United States, the
allocator may also provide an allocation of
response costs incurred at a facility before
the date of enactment of this section, but that
portion of the allocation shall not qualify for
reimbursement of an orphan share.
(8) Other matters.--This section shall not limit or
affect--
(A) the obligation of the Administrator to
conduct the allocation process for a response
action at a facility that has been the subject
of a partial or expedited settlement;
(B) the ability of any person to resolve
any liability, with respect to a facility, to
any other person at any time before initiation
or completion of the allocation process,
subject to subsection (n)(2);
(C) the validity, enforceability, finality,
or merits of any judicial or administrative
order, judgment, or decree, issued prior to the
date of enactment of this section with respect
to liability under this Act; or
(D) the validity, enforceability, finality,
or merits of any preexisting contract or
agreement relating to any allocation of
responsibility or any indemnity for, or sharing
of, any response costs under this Act.
(c) Moratorium on Litigation and Enforcement.--
(1) In general.--No person may assert a claim for
recovery of a response cost or contribution toward a
response cost (including a claim for insurance
proceeds) incurred after the date of enactment of this
section under this Act or any other Federal or State
law in connection with a response action--
(A) for which an allocation is required to
be performed under subsection (b)(1);
(B) for which the Administrator has
initiated settlement negotiations under
subsection (e); or
(C) for which the Administrator has
initiated the allocation process under this
section;
until the date that is 120 days after the date of
issuance of a report by the allocator under subsection
(h) or, if a second or subsequent report is issued
under subsection (m), the date of issuance of the
second or subsequent report.
(2) Pending actions or claims.--If a claim
described in paragraph (1) is pending on the date of
enactment of this section or on initiation of an
allocation under this section, the portion of the claim
pertaining to response costs that are the subject of
the allocation shall be stayed until the date that is
120 days after the date of issuance of a report by the
allocator under subsection (h) or, if a second or
subsequent report is issued under subsection (m), the
date of issuance of the second or subsequent report,
unless the court determines that a stay would result in
manifest injustice.
(3) Tolling of period of limitation.--
(A) Beginning of tolling.--Any applicable
period of limitation with respect to a claim
subject to paragraph (1) shall be tolled
beginning on the earlier of--
(i) the date of listing of the
facility on the National Priorities
List if the listing occurs after the
date of enactment of this section; or
(ii) the date of commencement of
settlement negotiations or initiation
of the allocation process under this
section.
(B) End of tolling.--A period of limitation
shall be tolled under subparagraph (A) until
the later of--
(i) the date that is 180 days after
the date of entry by a United States
district court of a settlement under
subsection (e); or
(ii) the date that is 180 days
after the date of issuance of a report
by the allocator under subsection (h),
or of a second or subsequent report
under subsection (m).
(4) Actions contemporaneous with settlement.--
Notwithstanding this section, the Attorney General may
commence a civil action against a potentially
responsible party or allocation party at any time if at
the same time the Attorney General files a judicial
consent decree resolving the liability of the
potentially responsible party or allocation party.
(d) Identification of Potentially Responsible Parties.--
(1) In general.--As soon as reasonably practicable,
the Administrator shall perform a comprehensive search
to identify all potentially responsible parties at each
mandatory allocation facility, and provide appropriate
opportunity for participation by potentially
responsible parties. The search shall be initiated not
later than 60 days after commencement of the remedial
investigation or selection of a removal action,
whichever occurs first.
(2) Nomination of additional parties.--
(A) Submission of names.--The Administrator
shall allow each potentially responsible party
identified by the Administrator under paragraph
(1) a reasonable period of time in which to
submit the names of additional potentially
responsible parties.
(B) Statement of basis.--A potentially
responsible party nominating another person as
a potentially responsible party shall--
(i) include a statement setting
forth the basis in law and fact why the
nominated party is potentially liable
under this Act; and
(ii) submit to the Administrator
and a majority of the nominated person
all available information that
identifies the nature and extent of the
nominated person''s involvement at, and
contribution of hazardous substances
to, the facility.
(C) Submission by nominated persons.--A
person nominated as a potentially responsible
party may within a reasonable time submit to
the Administrator information relating to
inclusion of the person as a potentially
responsible party at the facility.
(3) Inclusion of nominated persons.--The
Administrator shall include each person nominated under
paragraph (2) on the list of potentially responsible
parties, unless the Administrator determines that
inclusion of the person as a potentially liable party
is not warranted by law or not based on facts that have
reasonable evidentiary support under the circumstances.
(4) List of potentially responsible parties.--On
completion of the identification of potentially
responsible parties and before commencing settlement
negotiations under subsection (e), the Administrator
shall publish a list of potentially responsible
parties.
(5) Not final agency action.--The identification of
potentially responsible parties by the Administrator
under this subsection shall not constitute final agency
action for the purposes of chapter 7 of title 5, United
States Code and shall not be subject to judicial
review.
(e) Settlement Negotiations.--
(1) In general.--Unless the Administrator
determines not to use the negotiation procedures under
this subsection (in which case subsection (f) shall
apply), the Administrator shall provide a 90-day period
of negotiation under section 122(e)(2) for each
mandatory allocation facility before initiating an
allocation process under subsection (f). The 90-day
period may be extended by agreement of the
Administrator and a majority of the parties to the
negotiation.
(2) ADR neutral.--The Administrator may use the
services of an ADR neutral to assist in negotiations if
requested by the potentially responsible parties.
(3) Orphan share.--If settling potentially
responsible parties agree to perform the response
action and agree to additional terms and conditions of
settlement that are acceptable to the United States,
the United States shall reimburse the settling parties,
by payment or otherwise, 100 percent of the orphan
share identified by the Administrator under subsection
(i).
(4) Mandatory settlement.--The Administrator shall
promptly adopt any settlement that--
(A) allocates at least 90 percent of the
recoverable costs at a facility (including any
orphan share identified by the Administrator);
and
(B) contains the terms and conditions under
subsection (n)(2) other than the requirement to
pay a premium under subsection
(n)(2)(A)(ii)(I).
(5) Nonsettling party.--A potentially responsible
party that does not agree to a settlement under
paragraph (4) is subject to post-settlement litigation
under subsection (q).
(f) Allocation Process.--
(1) In general.--At the request of any potentially
responsible party that has not resolved its liability
to the United States (other than a nonsettling party
described in subsection (e)(5)), not later than 30 days
after the conclusion of settlement negotiations if
undertaken pursuant to subsection (e), the
Administrator shall initiate an allocation process
concerning a mandatory allocation facility in
accordance with this subsection.
(2) Timing.--A potentially responsible party
described in paragraph (1) shall submit to the
Administrator a written request for an allocation not
later than 30 days after the earlier of--
(A) the date on which the Administrator
notifies the potentially responsible parties in
writing that negotiations under subsection (e)
have concluded without a settlement having been
reached;
(B) the date on which a settlement under
subsection (e) has been lodged in United States
district court; or
(C) the Administrator determines not to use
the negotiation procedure under subsection (e),
and provides the potentially responsible party
notice of the determination.
(3) Flexible process.--
(A) In general.--Each allocation under this
section shall be performed by an allocator in a
fair, efficient, and impartial manner.
(B) Cost minimization.--The allocator shall
make every effort to streamline the allocation
process and minimize the cost of conducting the
allocation.
(C) Opportunity for comment.--Before
issuing the final allocation report, the
allocator shall give each allocation party and
the President an opportunity to comment on a
draft allocation report.
(D) Judicial review.--
(i) In general.--A decision by the
allocator shall be subject to judicial
review in United States district court
under subchapter II of chapter 5 of
title 5, United States Code.
(ii) Standard of review.--A
decision by the allocator shall be
upheld unless the objecting party
demonstrates that the decision was
arbitrary and capricious or otherwise
not in accordance with law.
(4) Retention of allocator.--
(A) In general.--An allocator shall be
selected by the Administrator and the
allocation parties to conduct an allocation
under this section.
(B) Selection by the Administrator.--An
allocator shall be selected by the
Administrator if the allocation parties do not
agree to the selection of an allocator within a
reasonable time.
(C) Procedure for expedited retention.--
(i) In general.--The Administrator
shall establish, by regulation or
otherwise--
(I) a simplified
acquisition procedure for the
expedited selection and
retention by contract of ADR
neutrals and allocators
(including, if appropriate,
establishing alternative
conflict of interest screening
procedures and alternative sole
source contracting
requirements); and
(II) a procedure for the
conduct of the allocation
process.
(ii) Mandatory contract source.--On
selection of an ADR neutral or
allocator, the Administrator shall
treat the selected ADR neutral or
allocator as a mandatory source for
contracting purposes.
(iii) No restriction of
allocator''s discretion.--The
Administrator shall not establish by
the regulation under clause (i) or
otherwise, any procedure that restricts
the allocator''s discretion in
assigning estimated contribution shares
and the orphan share under this
section.
(D) Participation by administrator or
attorney general.--The Administrator or the
Attorney General shall participate in the
allocation process on behalf of the United
States and as the representative of the Fund.
(E) Support services.--Each contract by
which the Administrator retains an allocator
shall authorize the allocator to acquire
reasonable support services.
(F) Information regarding potentially
responsible parties.--The Administrator shall
provide the allocator all information regarding
potentially responsible parties obtained under
paragraphs (1) and (2) of subsection (d).
(G) Federal potentially responsible
parties.--Federal departments, agencies, or
instrumentalities, or their agents, that are
identified as potentially responsible parties
or allocation parties under this Act--
(i) shall be subject to, and be
entitled to the benefits of, the
settlement negotiation and allocation
processes provided in this section to
the same extent as any other
potentially responsible party; but
(ii) shall not be entitled to post-
allocation contribution under
subsection (o).
(g) Equitable Factors for Allocation.--The allocator shall
prepare a nonbinding allocation of percentage shares of
responsibility to each allocation party and to the orphan
share, in accordance with this section and without regard to
any theory of joint and several liability, based on--
(1) the amount of hazardous substances contributed
by each allocation party;
(2) the degree of toxicity of hazardous substances
contributed by each allocation party;
(3) the mobility of hazardous substances
contributed by each allocation party;
(4) the degree of involvement of each allocation
party in the generation, transportation, treatment,
storage, or disposal of hazardous substances;
(5) the degree of care exercised by each allocation
party with respect to hazardous substances, taking into
account the characteristics of the hazardous
substances;
(6) the cooperation of each allocation party in
contributing to any response action and in providing
complete and timely information to the United States,
an ADR neutral, or the allocator; and
(7) such other equitable factors as the allocator
recommends, with the agreement of the allocation
parties and the United States.
(h) Allocator''s Report.--
(1) Allocation report.--The allocator shall provide
a written final allocation report to the Administrator,
the Attorney General, and each allocation party that
specifies the estimated contribution share of each
allocation party and of any orphan share.
(2) Opportunity for comment.--Before issuing the
final allocation report, the allocator shall give each
allocation party and the United States a reasonable
opportunity to comment on a draft allocation report.
(3) Admissibility of allocation report.--
(A) In general.--No draft or final
allocation report shall be admissible in any
court for any purpose except as provided in
subparagraph (B).
(B) Admission in support of settlement.--
The final allocator''s report, subject to the
rules and discretion of the court, may be
admitted into evidence solely for the purpose
of supporting a settlement between the United
States and an allocation party.
(4) Costs.--The Administrator may require
potentially responsible parties that did not enter into
a settlement under subsection (e) to pay the costs of
the allocation process.
(5) Judicial review.--A draft allocation report or
final allocation report of an allocator and any other
determination made by the Administrator or the
allocator for the purposes of this subsection shall not
be subject to judicial review.
(6) Administrative orders.--Neither the conduct nor
the results of an allocation shall constitute
sufficient cause for noncompliance with an order issued
under section 106.
(i) Orphan Shares.--
(1) Makeup of orphan share.--The orphan share shall
consist of--
(A) any share that the allocator determines
is attributable to an allocation party that is
insolvent or defunct and that is not affiliated
with any financially viable allocation party;
and
(B) the difference between the aggregate
share that the allocator determines is
attributable to an allocation party and the
aggregate share actually paid by the allocation
party if--
(i) the person is eligible for an
expedited settlement with the United
States under section 122;
(ii) the liability of the person is
eliminated, limited, or reduced by
subsection (o), (p), (q), (s), (t),
(u), (v), (w), or (x) of section 107 or
section 112(g); or
(iii) the person settled with the
United States before the completion of
the allocation.
(2) Unattributable shares.--A share attributable to
a hazardous substance that the allocator determines was
disposed at the facility that cannot be attributed to
any identifiable party shall be distributed among the
allocation parties and the orphan share in accordance
with the allocated share assigned to each.
(j) Information-Gathering Authority.--
(1) In general.--The ADR neutral or allocator may
gather such information as is necessary to conduct a
fair and impartial settlement or allocation.
(2) Types of authority.--In carrying out paragraph
(1), the ADR neutral or allocator may--
(A) exercise the information-gathering
authority of the President under section 104(e)
or issue a subpoena;
(B) request that the Attorney General
enforce any information request or subpoena
issued by the ADR neutral or the allocator and,
if the Attorney General does not respond to the
request within 15 days after receipt of the
request, retain counsel to enforce the
information request or subpoena; and
(C) request that the Attorney General seek
to impose civil penalties for any failure to
submit a complete and timely answer to an
information request or subpoena or for any
violation of subsection (k), or criminal
penalties under section 1001 of title 18,
United States Code, for any false or misleading
material statement made in connection with the
allocation process.
(3) Nonallocation parties.--The allocator may
exercise the authorities under this subsection with
respect to any party, regardless of whether the party
participates in an allocation process under subsection
(f). An exemption from, or limitation on, liability
does not limit or otherwise affect any requirement
under section 104(e) or 122(e).
(k) Confidentiality of Information.--
(1) In general.--All persons involved in the
settlement or allocation shall ensure the
confidentiality at all times of all information
submitted to the allocator.
(2) Confidentiality.--Information submitted to the
ADR neutral or allocator--
(A) shall not be--
(i) disclosed to any person except
as required by court order;
(ii) subject to disclosure to any
person under section 552 of title 5,
United States Code; or
(iii) discoverable or admissible in
any Federal, State, or local judicial
or administrative proceeding (if not
independently discoverable or
admissible); and
(B) shall be deemed to be a dispute
resolution communication for purposes of the
confidentiality provisions of sections 571
through 583 of title 5, United States Code
(commonly known as the ``Administrative Dispute
Resolution Act''), which shall apply for all
activities under this section.
(3) No waiver.--The submission to the ADR neutral
or allocator of information shall not constitute a
waiver of any privilege under any Federal or State law
(including any regulation).
(l) Rejection of Allocation Report.--
(1) Rejection.--The Administrator and the Attorney
General may jointly reject a report issued by an
allocator only if the Administrator and the Attorney
General jointly publish, not later than 180 days after
the Administrator receives the report, a written
determination that--
(A) the final allocation report does not
provide a basis for a settlement that would be
fair, reasonable, and consistent with the
objectives of this Act; or
(B) the allocation process was directly and
substantially affected by bias, procedural
error, fraud, or unlawful conduct.
(2) Finality.--A report issued by an allocator may
not be rejected after the date that is 180 days after
the date on which the United States accepts a
settlement offer based on the allocation.
(m) Second and Subsequent Allocations.--
(1) In general.--If a report is rejected under
subsection (l), the Administrator and the allocation
parties shall select an allocator to perform, on an
expedited basis, a new allocation based, to the extent
appropriate, on the same record available to the
previous allocator.
(2) Subsequent allocator process.--If a second
allocation report is rejected under subsection (l),
subsequent allocation processes may be provided at the
discretion of the Administrator.
(3) Moratorium and tolling.--The moratorium and
tolling provisions of subsection (l) shall be extended
until the date that is 180 days after the date of
issuance of any second or subsequent allocation report
under paragraph (1).
(n) Settlements Based on Allocations.--
(1) In general.--Unless an allocation report is
rejected under subsection (l), any allocation party at
a mandatory allocation facility (including an
allocation party whose allocated share is funded
partially or fully by orphan share funding under
subsection (i)) shall be entitled to resolve the
liability of the party to the United States for
response costs subject to allocation if, not later than
90 days after the date of issuance of a report by the
allocator, the party--
(A) makes a written offer to settle with
the United States based on the allocated share
specified by the allocator; and
(B) agrees to the other terms and
conditions stated in this subsection.
(2) Provisions of settlements.--
(A) In general.--A settlement based on an
allocation under this section--
(i) shall provide the Administrator
with authority to require that any
allocation party or group of parties
(other than an allocation party that
satisfies the requirements of section
107(v)) perform a response action; and
(ii) shall include--
(I) a provision under which
the United States shall
provide, by reimbursement or
otherwise, 90 percent of the
estimated contribution share
assigned to the orphan share,
as determined by the allocator
in the final allocation report,
and, if applicable, the
estimated contribution shares
of non-settling parties;
(II) a waiver of claims
against the Fund for
reimbursement;
(III) a waiver of
contribution rights against all
persons that are potentially
responsible parties for any
response cost addressed in the
settlement;
(IV) a covenant not to sue
that is consistent with section
122(f) and, except in the case
of a cash-out settlement,
provisions regarding
performance or adequate
assurance of performance of the
response action;
(V) complete protection
from all claims for
contribution regarding the
response costs incurred after
the date of enactment of this
section that are addressed in
the settlement;
(VI) provisions through
which a settling party shall
receive prompt contribution
from the Fund under subsection
(o) of any response cost that
is the subject of the
allocation in excess of the
allocated share of the party,
including the allocated portion
of any orphan share; and
(VII) provisions through
which a settling party shall
waive any challenge to any
settlement that the
Administrator or Attorney
General enters into with any
other potentially responsible
party at the facility.
(B) Not contingent.--Contribution under
subparagraph (A)(ii)(VI) shall not be
contingent on recovery by the United States of
any response costs from any person other than
the settling party.
(o) Post-Allocation Contribution.--
(1) In general.--An allocation party that incurs
costs after the date of enactment of this section for
implementation of a response action that is the subject
of an allocation under this section to an extent that
exceeds the percentage share of the allocation party,
as determined by the allocator, shall be entitled to
prompt payment of contribution for the excess amount,
including any orphan share, from the Fund, unless the
allocation report is rejected under subsection (l).
(2) Not contingent.--The right to contribution
under paragraph (1) shall not be contingent on recovery
by the United States of a response cost from any other
person.
(3) Terms and conditions.--
(A) Risk premium.--A contribution payment
shall be reduced by an amount not exceeding the
litigation risk premium under subsection
(n)(2)(A)(ii)(I) that would apply to a
settlement by the allocation party concerning
the response action, based on the total
allocated shares of the parties that have not
reached a settlement with the United States.
(B) Timing.--
(i) In general.--A contribution
payment shall be paid out during the
course of the response action that was
the subject of the allocation, using
reasonable progress payments at
significant milestones.
(ii) Construction.--Contribution
for the construction portion of the
work shall be paid out not later than
120 days after the date of completion
of the construction unless construction
takes longer than 1 year, in which case
contribution shall be made in
appropriate periodic payments.
(C) Financial controls on contribution.--
The Administrator shall require all claims for
contribution under paragraph (1) to be
supported by--
(i) documentation of actual costs
incurred; and
(ii) sufficient information to
enable the Administrator to determine
whether the costs were reasonable,
necessary, and consistent with the
National Contingency Plan.
(D) Equitable offset.--A contribution
payment shall be subject to equitable offset or
recoupment by the Administrator at any time if
the allocation party fails to perform the work
in a proper and timely manner.
(E) Waiver.--
(i) In general.--An allocation
party that receives contribution under
this section waives the right to seek
from any other person potentially
liable under this Act--
(I) recovery of response
costs incurred after the date
of enactment of this section in
connection with the response
action; or
(II) contribution toward
the response costs incurred
after the date of enactment of
this section.
(ii) Claims against insurers.--
Clause (i) does not preclude a claim by
an allocation party against an insurer
of the allocation party for the portion
of response costs borne by the
allocation party that is not covered by
the amount of contribution received by
the allocation party.
(p) Funding of Orphan Shares.--
(1) Contribution.--For each settlement entered into
under subsection (n) and each administrative order or
settlement decree to which subsection (o) applies, the
Administrator shall promptly provide contribution to
the settling allocation parties as provided in those
subsections.
(2) Entitlement.--Paragraph (1) constitutes an
entitlement to any allocation party eligible to receive
contribution.
(3) Amounts owed.--
(A) Delay if funds are unavailable.--If
funds are unavailable in any fiscal year to
provide contribution to all allocation parties
under paragraph (1), the Administrator may
delay payment until funds are available.
(B) Priority.--The priority for
contribution shall be based on the length of
time that has passed since the settlement
between the United States and the allocation
parties under subsection (n).
(C) Payment from funds made available in
subsequent fiscal years.--Any amount due and
owing in excess of available appropriations in
any fiscal year shall be paid from amounts made
available in subsequent fiscal years, along
with interest on the unpaid balances at the
rate equal to that of the current average
market yield on outstanding marketable
obligations of the United States with a
maturity of 1 year.
(4) Auditing.--The Administrator may require an
independent auditing of any claim for contribution.
(q) Post-Settlement Litigation.--
(1) In general.--Subject to subsections (m) and
(n), and on the expiration of the moratorium period
under subsection (c), the Administrator may commence an
action under section 107 against an allocation party
that has not resolved the liability of the party to the
United States following allocation and may seek to
recover response costs not recovered through
settlements with other persons, including the costs of
the allocation process under paragraph (4).
(2) Recovery.--In any action under paragraph (1), a
nonsettling party shall be subject to joint and several
liability for response costs not recovered through
settlements with other persons, including the cost of
any federally funded orphan share and share of
nonsettling parties, but not including any estimated
contribution shares allocated to Federal agencies,
departments, or instrumentalities.
(3) Impleader.--A defendant in an action under
paragraph (1) may implead an allocation party only if
the allocation party did not resolve its liability to
the United States.
(4) Response costs.--
(A) Allocation process.--The cost of
implementing the allocation process or
settlement process under this section,
including reasonable fees and expenses of the
allocator, shall be considered to be a
necessary response cost.
(B) Funding of orphan shares.--The cost
attributable to funding an orphan share under
this section--
(i) shall be considered to be a
necessary response cost; and
(ii) shall be recoverable under
section 107 only from an allocation
party that does not reach a settlement
under subsection (n).
(r) Retained Authority.--Except as specifically provided in
this section, this section does not affect the authority of the
Administrator to--
(1) exercise the powers conferred by section 103,
104, 105, 106, or 122;
(2) commence an action against a party if there is
a contemporaneous filing of a judicial consent decree
resolving the liability of the party;
(3) file a proof of claim or take other action in a
proceeding under title 11, United States Code;
(4) require implementation of a response action at
an allocation facility during the conduct of the
allocation process; or
(5) file any actions necessary to prevent
dissipation of the assets of a potentially responsible
party.
(s) Illegal Activities.--Subsections (o), (p), (q), (r),
(s), (t), (u), (v), (w), and (x) of section 107 and section
112(g) shall not apply to any person whose liability for
response costs under section 107(a)(1) is otherwise based on
any act, omission, or status that is determined by a court or
administrative body of competent jurisdiction, within the
applicable statute of limitation, to have been a violation of
any Federal or State law pertaining to the treatment, storage,
disposal, or handling of hazardous substances if the violation
pertains to a hazardous substance, the release or threat of
release of which caused the incurrence of response costs at the
vessel or facility.
(t) Use of Mediation.--
(1) General.--A Federal natural resource trustee,
State natural resource trustee, or Indian Tribe seeking
damages for injury to, destruction of, or loss of a
natural resource under subsection (a) or (f) of section
107 shall initiate mediation of the claim with any
potentially responsible parties by means of the
mediation procedure or other alternative dispute
resolution method recognized by the United States
district court for the district in which the action is
filed.
(2) Time.--Mediation shall be initiated not later
than 120 days after commencement of an action of
damages.
SEC. 138. LEAD IN SOIL.
(a) In General.--Not later than 30 days after the date of
enactment of this section, the Administrator shall enter into a
contract with the Health Effects Institute (referred to in this
section as the ``Institute'') to establish and administer an
independent scientific review panel (referred to in this
section as the ``review panel'') composed of university-based
scientists and statisticians and the principal investigators of
the studies conducted under section 111(a)(6) to review
existing science (and any new science made available before
completion of any review) on the relationship between lead in
residential soil and blood lead levels.
(b) Matters To Be Addressed.--The review under subsection
(a) shall include--
(1) an assessment of whether, and if so to what
extent, blood lead levels are affected by removing
lead-containing soil at varying levels;
(2) an assessment of whether blood lead levels are
affected by variation in the type of lead compound,
soil type, and other site-specific factors; and
(3) a review of the methodologies for modeling the
impact of soil lead levels on blood lead levels.
(c) Procedure.--
(1) Time for completion.--The review panel shall
complete the review under subsection (a) not later than
180 days after contracting with the Administrator.
(2) Peer review and public comment.--The review
shall include an opportunity for peer review and public
comment and participation.
(3) Report.--The review panel shall report its
findings to Congress and the Administrator not later
than 30 days after completing the review.
(d) Rulemaking.--
(1) Proposed regulation.--Not later than 180 days
after the date on which the report under subsection
(c)(3) is submitted, the Administrator shall issue for
public comment a proposed regulation governing the
performance of risk assessments and selecting remedies
at facilities where lead in soil is a contaminant of
concern.
(2) Final regulation.--Not later than 180 days
after the proposed regulation is issued, the
Administrator shall promulgate a final regulation
governing the performance of risk assessments and
selecting remedies at facilities where lead in soil is
a contaminant of concern.
(3) Basis.--The proposed regulation and final
regulation shall be based on, and shall be consistent
with, the findings of the report under subsection
(c)(3).
(4) Contents.--
(A) In general.--The regulation shall
address, at a minimum--
(i) the role of biomonitoring data
in assessing risk assessments and the
use of site-specific data in risk
assessments; and
(ii) the reconciliation of data,
which shall include a process for the
President, in making estimates or
projections of risks based on models,
methodologies, rules, or guidance
concerning the exposure, uptake,
bioavailability, and biokinetics of
lead in soil, to reconcile--
(I) the estimates or
projections; with
(II) any empirical data
concerning lead in blood from
research, studies, or samples
and any other relevant
research.
(B) Definition of reconcile.--For the
purposes of this paragraph, the term
``reconcile'' means to--
(i) compare all relevant
information on a technical basis; and
(ii) if there is any difference
between empirical data and projections
based on any model, methodology, rule,
or guidance--
(I) explain the difference
in writing; and
(II) make a judgment based
on the weight of the scientific
evidence.
[42 U.S.C. 9626]
TITLE II--HAZARDOUS SUBSTANCE RESPONSE REVENUE ACT OF 1980
SEC. 201. SHORT TITLE; AMENDMENT OF 1954 CODE.
(a) Short Title.--This title may be cited as the
``Hazardous Substance Response Revenue Act of 1980''.
(b) Amendment of 1954 Code.--Except as otherwise
expressly provided, whenever in this title an amendment or
repeal is expressed in terms of an amendment to, or repeal of,
a section or other provision, the reference shall be considered
to be made to a section or other provision of the Internal
Revenue Code of 1954.
Subtitle A--Imposition of Taxes on Petroleum and Certain Chemicals \63\
* * * * * * *
Subtitle B--Establishment of Hazardous Substance Response Trust Fund
[Repealed by section 517 of SARA of 1986 (P.L. 99-499)]
Subtitle C--Post-Closure Tax and Trust Fund
[Repealed by section 514 of SARA of 1986 (P.L. 99-499)]
TITLE III--MISCELLANEOUS PROVISIONS
REPORTS AND STUDIES
Sec. 301. (a)(1) The President shall submit to the
Congress, within four years after enactment of this Act, a
comprehensive report on experience with the implementation of
this Act, including, but not limited to--
---------------------------------------------------------------------------
\63\ Subtitle A inserted a new chapter 38 (relating to
environmental taxes) in the Internal Revenue Code, consisting of a
subchapter A (tax on petroleum) and subchapter B (tax on certain
chemicals). However, since the enactment of CERLCA, chapter 38 has been
amended extensively, most notably by title V of the Superfund
Amendments and Reauthorization Act of 1986 (P.L. 99-499) and by section
8032 of the Omnibus Budget Reconciliation Act of 1986 (P.L. 99-509).
See the Internal Revenue Code of 1986 for the current text of chapter
38.
---------------------------------------------------------------------------
(A) the extent to which the Act and Fund are
effective in enabling Government to respond to and
mitigate the effects of releases of hazardous
substances;
(B) a summary of past receipts and disbursements
from the Fund;
(C) a projection of any future funding needs
remaining after the expiration of authority to collect
taxes, and of the threat to public health, welfare, and
the environment posed by the projected releases which
create any such needs;
(D) the record and experience of the Fund in
recovering Fund disbursements from liable parties;
(E) the record of State participation in the system
of response, liability, and compensation established by
this Act;
(F) the impact of the taxes imposed by title II of
this Act on the Nation's balance of trade with other
countries;
(G) an assessment of the feasibility and
desirability of a schedule of taxes which would take
into account one or more of the following: the
likelihood of a release of a hazardous substance, the
degree of hazard and risk of harm to public health,
welfare, and the environment resulting from any such
release, incentives to proper handling, recycling,
incineration, and neutralization of hazardous wastes,
and disincentives to improper or illegal handling or
disposal of hazardous materials, administrative and
reporting burdens on Government and industry, and the
extent to which the tax burden falls on the substances
and parties which create the problems addressed by this
Act. In preparing the report, the President shall
consult with appropriate Federal, State, and local
agencies, affected industries and claimants, and such
other interested parties as he may find useful. Based
upon the analyses and consultation required by this
subsection, the President shall also include in the
report any recommendations for legislative changes he
may deem necessary for the better effectuation of the
purposes of this Act, including but not limited to
recommendations concerning authorization levels, taxes,
State participation, liability and liability limits,
and financial responsibility provisions for the
Response Trust Fund and the Post-closure Liability
Trust Fund;
(H) an exemption from or an increase in the
substances or the amount of taxes imposed by section
4661 of the Internal Revenue Code of 1954 for copper,
lead, and zinc oxide, and for feedstocks when used in
the manufacture and production of fertilizers, based
upon the expenditure experience of the Response Trust
Fund;
(I) the economic impact of taxing coal-derived
substances and recycled metals.
(2) The Administrator of the Environmental Protection
Agency (in consultation with the Secretary of the Treasury)
shall submit to the Congress (i) within four years after
enactment of this Act, a report identifying additional wastes
designated by rule as hazardous after the effective date of
this Act and pursuant to section 3001 of the Solid Waste
Disposal Act and recommendations on appropriate tax rates for
such wastes for the Post-closure Liability Trust Fund. The
report shall, in addition, recommend a tax rate, considering
the quantity and potential danger to human health and the
environment posed by the disposal of any wastes which the
Administrator, pursuant to subsection 3001(b)(2)(B) and
subsection 3001(b)(3)(A) of the Solid Waste Disposal Act of
1980, has determined should be subject to regulation under
subtitle C of such Act, (ii) within three years after enactment
of this Act, a report on the necessity for and the adequacy of
the revenue raised, in relation to estimated future
requirements, of the Post-closure Liability Trust Fund.
(b) The President shall conduct a study to determine (1)
whether adequate private insurance protection is available on
reasonable terms and conditions to the owners and operators of
vessels and facilities subject to liability under section 107
of this Act, and (2) whether the market for such insurance is
sufficiently competitive to assure purchasers of features such
as a reasonable range of deductibles, coinsurance provisions,
and exclusions. The President shall submit the results of his
study, together with his recommendations, within 2 years of the
date of enactment of this Act, and shall submit an interim
report on his study within one year of the date of enactment of
this Act.
[(c)(1) The President, acting through Federal officials
designated by the National Contingency Plan published under
section 105 of this Act, shall study and, not later than two
years after the enactment of this Act, shall promulgate
regulations for the assessment of damages for injury to,
destruction of, or loss of natural resources resulting from a
release of oil or a hazardous substance for the purposes of
this Act and section 311(f) (4) and (5) of the Federal Water
Pollution Control Act. Notwithstanding the failure of the
President to promulgate the regulations required under this
subsection on the required date, the President shall promulgate
such regulations not later than 6 months after the enactment of
the Superfund Amendments and Reauthorization Act of 1986.
[(2) Such regulations shall specify (A) standard
procedures for simplified assessments requiring minimal field
observation, including establishing measures of damages based
on units of discharge or release or units of affected area, and
(B) alternative protocols for conducting assessments in
individual cases to determine the type and extent of short- and
long-term injury, destruction, or loss. Such regulations shall
identify the best available procedures to determine such
damages, including both direct and indirect injury,
destruction, or loss and shall take into consideration factors
including, but not limited to, replacement value, use value,
and ability of the ecosystem or resource to recover.
[(3) Such regulations shall be reviewed and revised as
appropriate every two years.]
(c) Regulations for injury and restoration assessments.--
(1) General.--Not later than 2 years after the date
of enactment of the Superfund Cleanup Acceleration Act
of 1998, the President, acting through Federal
officials designated by the National Contingency Plan
under section 107(f)(2), shall issue an amended
regulation for the assessment of injury to natural
resources and costs of restoration of natural resources
(including costs of assessment) for the purposes of
this Act.
(2) Contents.--The amended regulation shall--
(A) specify protocols for conducting
assessments based on scientifically valid
principles in individual cases to determine the
injury, destruction, or loss of natural
resources;
(B) identify the best available procedures
to determine the costs of restoration and
ensure that assessment costs are reasonable;
(C) take into consideration the ability of
a natural resource to recover naturally and the
availability of replacement or alternative
resources;
(D) provide for the designation of a lead
administrative trustee for each facility at
which an injury to natural resources has
occurred within 180 days after the date of the
first notice to the responsible parties that an
assessment of injury and restoration
alternatives will be made;
(E) require that injury assessment,
restoration planning and quantification of
restoration costs be based on facility-specific
information to the extent that such information
is available; and
(F) set forth procedures under which--
(i) all pending and potential
trustees identify, as soon as
practicable after the date on which an
assessment begins, the injured natural
resources within their respective trust
responsibilities, and the authority
under which such responsibilities are
established;
(ii) assessment of injury and
restoration alternatives will be
coordinated to the greatest extent
practicable between the lead
administrative trustee and any present
or potential Federal, State or Tribal
trustees; and
(iii) time periods for payment of
damages in accordance with section
107(f)(1)(F) shall be determined.
(3) Period in which action may be brought.--
Promulgation of the amended regulation under this
subsection shall not extend the period in which an
action must have been brought pursuant to section
113(g)(1)(B) as in effect before the date of enactment
of the Superfund Cleanup Acceleration Act of 1998.
(d) The Administrator of the Environmental Protection
Agency shall, in consultation with other Federal agencies and
appropriate representatives of State and local governments and
nongovernmental agencies, conduct a study and report to the
Congress within two years of the date of enactment of this Act
on the issues, alternatives, and policy considerations involved
in the selection of locations for hazardous waste treatment,
storage, and disposal facilities. This study shall include--
(A) an assessment of current and projected
treatment, storage, and disposal capacity needs and
shortfalls for hazardous waste by management category
on a State-by-State basis;
(B) an evaluation of the appropriateness of a
regional approach to siting and designing hazardous
waste management facilities and the identification of
hazardous waste management regions, interstate or
intrastate, or both, with similar hazardous waste
management needs;
(C) solicitation and analysis of proposals for the
construction and operation of hazardous waste
management facilities by nongovernmental entities,
except that no proposal solicited under terms of this
subsection shall be analyzed if it involves cost to the
United States Government or fails to comply with the
requirements of subtitle C of the Solid Waste Disposal
Act and other applicable provisions of law;
(D) recommendations on the appropriate balance
between public and private sector involvement in the
siting, design, and operation of new hazardous waste
management facilities;
(E) documentation of the major reasons for public
opposition to new hazardous waste management
facilities; and
(F) an evaluation of the various options for
overcoming obstacles to siting new facilities,
including needed legislation for implementing the most
suitable option or options.
(e)(1) In order to determine the adequacy of existing
common law and statutory remedies in providing legal redress
for harm to man and the environment caused by the release of
hazardous substances into the environment, there shall be
submitted to the Congress a study within twelve months of
enactment of this Act.
(2) This study shall be conducted with the assistance of
the American Bar Association, the American Law Institute, the
Association of American Trial Lawyers, and the National
Association of State Attorneys General with the President of
each entity selecting three members from each organization to
conduct the study. The study chairman and one reporter shall be
elected from among the twelve members of the study group.
(3) As part of their review of the adequacy of existing
common law and statutory remedies, the study group shall
evaluate the following:
(A) the nature, adequacy, and availability of
existing remedies under present law in compensating for
harm to man from the release of hazardous substances;
(B) the nature of barriers to recovery
(particularly with respect to burdens of going forward
and of proof and relevancy) and the role such barriers
play in the legal system;
(C) the scope of the evidentiary burdens placed on
the plaintiff in proving harm from the release of
hazardous substances, particularly in light of the
scientific uncertainty over causation with respect to--
(i) carcinogens, mutagens, and teratogens,
and
(ii) the human health effects of exposure
to low doses of hazardous substances over long
periods of time;
(D) the nature and adequacy of existing remedies
under present law in providing compensation for damages
to natural resources from the release of hazardous
substances;
(E) the scope of liability under existing law and
the consequences, particularly with respect to
obtaining insurance, of any changes in such liability;
(F) barriers to recovery posed by existing statutes
of limitations.
(4) The report shall be submitted to the Congress with
appropriate recommendations. Such recommendations shall
explicitly address--
(A) the need for revisions in existing statutory or
common law, and
(B) whether such revisions should take the form of
Federal statutes or the development of a model code
which is recommended for adoption by the States.
(5) The Fund shall pay administrative expenses incurred
for the study. No expenses shall be available to pay
compensation, except expenses on a per diem basis for the one
reporter, but in no case shall the total expenses of the study
exceed $300,000.
(f) The President, acting through the Administrator of
the Environmental Protection Agency, the Secretary of
Transportation, the Administrator of the Occupational Safety
and Health Administration, and the Director of the National
Institute for Occupational Safety and Health shall study and,
not later than two years after the enactment of this Act, shall
modify the national contingency plan to provide for the
protection of the health and safety of employees involved in
response actions.
(g) Insurability Study.--
(1) Study by comptroller general.--The Comptroller
General of the United States, in consultation with the
persons described in paragraph (2), shall undertake a
study to determine the insurability, and effects on the
standard of care, of the liability of each of the
following:
(A) Persons who generate hazardous
substances: liability for costs and damages
under this Act.
(B) Persons who own or operate facilities:
liability for costs and damages under this Act.
(C) Persons liable for injury to persons or
property caused by the release of hazardous
substances into the environment.
(2) Consultation.--In conducting the study under
this subsection, the Comptroller General shall consult
with the following:
(A) Representatives of the Administrator.
(B) Representatives of persons described in
subparagraphs (A) through (C) of the preceding
paragraph.
(C) Representatives (i) of groups or
organizations comprised generally of persons
adversely affected by releases or threatened
releases of hazardous substances and (ii) of
groups organized for protecting the interests
of consumers.
(D) Representatives of property and
casualty insurers.
(E) Representatives of reinsurers.
(F) Persons responsible for the regulation
of insurance at the State level.
(3) Items evaluated.--The study under this section
shall include, among other matters, an evaluation of
the following:
(A) Current economic conditions in, and the
future outlook for, the commercial market for
insurance and reinsurance.
(B) Current trends in statutory and common
law remedies.
(C) The impact of possible changes in
traditional standards of liability, proof,
evidence, and damages on existing statutory and
common law remedies.
(D) The effect of the standard of liability
and extent of the persons upon whom it is
imposed under this Act on the protection of
human health and the environment and on the
availability, underwriting, and pricing of
insurance coverage.
(E) Current trends, if any, in the judicial
interpretation and construction of applicable
insurance contracts, together with the degree
to which amendments in the language of such
contracts and the description of the risks
assumed, could affect such trends.
(F) The frequency and severity of a
representative sample of claims closed during
the calendar year immediately preceding the
enactment of this subsection.
(G) Impediments to the acquisition of
insurance or other means of obtaining liability
coverage other than those referred to in the
preceding subparagraphs.
(H) The effects of the standards of
liability and financial responsibility
requirements imposed pursuant to this Act on
the cost of, and incentives for, developing and
demonstrating alternative and innovative
treatment technologies, as well as waste
generation minimization.
(4) Submission.--The Comptroller General shall
submit a report on the results of the study to Congress
with appropriate recommendations within 12 months after
the enactment of this subsection.
(h) Report and Oversight Requirements.--
(1) Annual report by epa.--On January 1 of each
year the Administrator of the Environmental Protection
Agency shall submit an annual report to Congress of
such Agency on the progress achieved in implementing
this Act during the preceding fiscal year. In addition
such report shall specifically include each of the
following:
(A) A detailed description of each
feasibility study carried out at a facility
under title I of this Act.
(B) The status and estimated date of
completion of each such study.
(C) Notice of each such study which will
not meet a previously published schedule for
completion and the new estimated date for
completion.
(D) An evaluation of newly developed
feasible and achievable permanent treatment
technologies.
(E) Progress made in reducing the number of
facilities subject to review under section
121(c).
(F) A report on the status of all remedial
and enforcement actions undertaken during the
prior fiscal year, including a comparison to
remedial and enforcement actions undertaken in
prior fiscal years.
(G) An estimate of the amount of resources,
including the number of work years or
personnel, which would be necessary for each
department, agency, or instrumentality which is
carrying out any activities of this Act to
complete the implementation of all duties
vested in the department, agency, or
instrumentality under this Act.
(2) Review by inspector general.--Consistent with
the authorities of the Inspector General Act of 1978
the Inspector General of the Environmental Protection
Agency shall review any report submitted under
paragraph (1) related to EPA's activities for
reasonableness and accuracy and submit to Congress, as
a part of such report a report on the results of such
review.
(3) Congressional oversight.--After receiving the
reports under paragraphs (1) and (2) of this subsection
in any calendar year, the appropriate authorizing
committees of Congress shall conduct oversight hearings
to ensure that this Act is being implemented according
to the purposes of this Act and congressional intent in
enacting this Act.
[42 U.S.C. 9651]
effective dates, savings provision
Sec. 302. (a) Unless otherwise provided, all provisions
of this Act shall be effective on the date of enactment of this
Act.
(b) Any regulation issued pursuant to any provisions of
section 311 of the Clean Water Act which is repealed or
superseded by this Act and which is in effect on the date
immediately preceding the effective date of this Act shall be
deemed to be a regulation issued pursuant to the authority of
this Act and shall remain in full force and effect unless or
until superseded by new regulations issued thereunder.
(c) Any regulation--
(1) respecting financial responsibility,
(2) issued pursuant to any provision of law
repealed or superseded by this Act, and
(3) in effect on the date immediately preceding the
effective date of this Act shall be deemed to be a
regulation issued pursuant to the authority of this Act
and shall remain in full force and effect unless or
until superseded by new regulations issued thereunder.
(d) Nothing in this Act shall affect or modify in any way
the obligations or liabilities of any person under other
Federal or State law, including common law, with respect to
releases of hazardous substances or other pollutants or
contaminants. The provisions of this Act shall not be
considered, interpreted, or construed in any way as reflecting
a determination, in part or whole, of policy regarding the
inapplicability of strict liability, or strict liability
doctrines, to activities relating to hazardous substances,
pollutants, or contaminants or other such activities.
[42 U.S.C. 9652]
expiration, sunset provision
Sec. 303. [Repealed by P.L. 99-499.]
[42 U.S.C. 9653]
conforming amendments
Sec. 304. (a) [Repealed subsection (b) of section 504 of
the Federal Water Pollution Control Act].
(b) One-half of the unobligated balance remaining before
the date of the enactment of this Act under subsection (k) \64\
of section 311 of the Federal Water Pollution Control Act and
all sums appropriated under section 504(b) \65\ of the Federal
Water Pollution Control Act shall be transferred to the Fund
established under title II of this Act.
---------------------------------------------------------------------------
\64\ Subsection (k) was repealed by section 2002(b)(2) of Public
Law 101-380.
\65\ Section 504(b) was repealed by section 304(a) of Public Law
96-510.
---------------------------------------------------------------------------
(c) In any case in which any provision of section 311 of
the Federal Water Pollution Control Act is determined to be in
conflict with any provisions of this Act, the provisions of
this Act shall apply.
[42 U.S.C. 9654]
legislative veto
Sec. 305. (a) Notwithstanding any other provision of law,
simultaneously with promulgation or repromulgation of any rule
or regulation under authority of title I of this Act, the head
of the department, agency, or instrumentality promulgating such
rule or regulation shall transmit a copy thereof to the
Secretary of the Senate and the Clerk of the House of
Representatives. Except as provided in subsection (b) of this
section, the rule or regulation shall not become effective,
if--
(1) within ninety calendar days of continuous
session of Congress after the date of promulgation,
both Houses of Congress adopt a concurrent resolution,
the matter after the resolving clause of which is as
follows: ``That Congress disapproves the rule or
regulation promulgated by the dealing with
the matter of , which rule or regulation
was transmitted to Congress on .'', the
blank spaces therein being appropriately filled; or
(2) within sixty calendar days of continuous
session of Congress after the date of promulgation, one
House of Congress adopts such a concurrent resolution
and transmits such resolution to the other House, and
such resolution is not disapproved by such other House
within thirty calendar days of continuous session of
Congress after such transmittal.
(b) If, at the end of sixty calendar days of continuous
session of Congress after the date of promulgation of a rule or
regulation, no committee of either House of Congress has
reported or been discharged from further consideration of a
concurrent resolution disapproving the rule or regulation and
neither House has adopted such a resolution, the rule or
regulation may go into effect immediately. If, within such
sixty calendar days, such a committee has reported or been
discharged from further consideration of such a resolution, or
either House has adopted such a resolution, the rule or
regulation may go into effect not sooner than ninety calendar
days of continuous session of Congress after such rule is
prescribed unless disapproved as provided in subsection (a) of
this section.
(c) For purposes of subsections (a) and (b) of this
section--
(1) continuity of session is broken only by an
adjournment of Congress sine die; and
(2) the days on which either House is not in
session because of an adjournment of more than three
days to a day certain are excluded in the computation
of thirty, sixty, and ninety calendar days of
continuous session of Congress.
(d) Congressional inaction on, or rejection of, a
resolution of disapproval shall not be deemed an expression of
approval of such rule or regulation.
[42 U.S.C. 9655]
transportation
Sec. 306. (a) Each hazardous substance which is listed or
designated as provided in section 101(14) of this Act shall,
within 30 days after the enactment of the Superfund Amendments
and Reauthorization Act of 1986 or at the time of such listing
or designation, whichever is later, be listed and regulated as
a hazardous material under the Hazardous Materials
Transportation Act. \66\
---------------------------------------------------------------------------
\66\ Should refer to chapter 51 of title 49, United States Code,
pursuant to section 6(b) of Public Law 103-272 (which codified certain
transportation laws into title 49, U.S.C.).
---------------------------------------------------------------------------
(b) A common or contract carrier shall be liable under
other law in lieu of section 107 of this Act for damages or
remedial action resulting from the release of a hazardous
substance during the course of transportation which commenced
prior to the effective date of the listing and regulation of
such substance as a hazardous material under the Hazardous
Materials Transportation Act, \1\ or for substances listed
pursuant to subsection (a) of this section, prior to the
effective date of such listing: Provided, however, That this
subsection shall not apply where such a carrier can demonstrate
that he did not have actual knowledge of the identity or nature
of the substance released.
(c) [Amended section 11901 of title 49, United States
Code.]
[42 U.S.C. 9656]
assistant administrator for solid waste
Sec. 307. (a) [Amended section 2001 of the Solid Waste
Disposal Act by striking out ``a Deputy Assistant'' and
inserting in lieu thereof ``an Assistant''.]
(b) The Assistant Administrator of the Environmental
Protection Agency appointed to head the Office of Solid Waste
shall be in addition to the five Assistant Administrators of
the Environmental Protection Agency provided for in section
1(d) of Reorganization Plan Numbered 3 of 1970 and the
additional Assistant Administrator provided by the Toxic
Substances Control Act, shall be appointed by the President by
and with the advice and consent of the Senate, and shall be
compensated at the rate provided for Level IV of the Executive
Schedule pay rates under section 5315 of title 5, United States
Code.
(c) The amendment made by subsection (a) shall become
effective ninety days after the date of the enactment of this
Act.
[42 U.S.C. 6911a]
separability
Sec. 308. If any provision of this Act, or the
application of any provision of this Act to any person or
circumstance, is held invalid, the application of such
provision to other persons or circumstances and the remainder
of this Act shall not be affected thereby. If an administrative
settlement under section 122 has the effect of limiting any
person's right to obtain contribution from any party to such
settlement, and if the effect of such limitation would
constitute a taking without just compensation in violation of
the fifth amendment of the Constitution of the United States,
such person shall not be entitled, under other laws of the
United States, to recover compensation from the United States
for such taking, but in any such case, such limitation on the
right to obtain contribution shall be treated as having no
force and effect.
[42 U.S.C. 9657]
SEC. 309. ACTIONS UNDER STATE LAW FOR DAMAGES FROM EXPOSURE TO
HAZARDOUS SUBSTANCES.
(a) State Statutes of Limitations for Hazardous Substance
Cases.--
(1) Exception to state statutes.--In the case of
any action brought under State law for personal injury,
or property damages, which are caused or contributed to
by exposure to any hazardous substance, or pollutant or
contaminant, released into the environment from a
facility, if the applicable limitations period for such
action (as specified in the State statute of
limitations or under common law) provides a
commencement date which is earlier than the federally
required commencement date, such period shall commence
at the federally required commencement date in lieu of
the date specified in such State statute.
(2) State law generally applicable.--Except as
provided in paragraph (1), the statute of limitations
established under State law shall apply in all actions
brought under State law for personal injury, or
property damages, which are caused or contributed to by
exposure to any hazardous substance, or pollutant or
contaminant, released into the environment from a
facility.
(3) Actions under section 107.--Nothing in this
section shall apply with respect to any cause of action
brought under section 107 of this Act.
(b) Definitions.--As used in this section--
(1) Title i terms.--The terms used in this section
shall have the same meaning as when used in title I of
this Act.
(2) Applicable limitations period.--The term
``applicable limitations period'' means the period
specified in a statute of limitations during which a
civil action referred to in subsection (a)(1) may be
brought.
(3) Commencement date.--The term ``commencement
date'' means the date specified in a statute of
limitations as the beginning of the applicable
limitations period.
(4) Federally required commencement date.--
(A) In general.--Except as provided in
subparagraph (B), the term ``federally required
commencement date'' means the date the
plaintiff knew (or reasonably should have
known) that the personal injury or property
damages referred to in subsection (a)(1) were
caused or contributed to by the hazardous
substance or pollutant or contaminant
concerned.
(B) Special rules.--In the case of a minor
or incompetent plaintiff, the term ``federally
required commencement date'' means the later of
the date referred to in subparagraph (A) or the
following:
(i) In the case of a minor, the
date on which the minor reaches the age
of majority, as determined by State
law, or has a legal representative
appointed.
(ii) In the case of an incompetent
individual, the date on which such
individual becomes competent or has had
a legal representative appointed.
[42 U.S.C. 9658]
SEC. 310. CITIZENS SUITS.
(a) Authority to Bring Civil Actions.--Except as provided
in subsections (d) and (e) of this section and in section
113(h) (relating to timing of judicial review), any person may
commence a civil action on his own behalf--
(1) against any person (including the United States
and any other governmental instrumentality or agency,
to the extent permitted by the eleventh amendment to
the Constitution) who is alleged to be in violation of
any standard, regulation, condition, requirement, or
order which has become effective pursuant to this Act
(including any provision of an agreement under section
120, relating to Federal facilities); or
(2) against the President or any other officer of
the United States (including the Administrator of the
Environmental Protection Agency and the Administrator
of the ATSDR) where there is alleged a failure of the
President or of such other officer to perform any act
or duty under this Act, including an act or duty under
section 120 (relating to Federal facilities), which is
not discretionary with the President or such other
officer.
Paragraph (2) shall not apply to any act or duty under the
provisions of section 311 (relating to research, development,
and demonstration).
(b) Venue.--
(1) Actions under subsection (a)(1).--Any action
under subsection (a)(1) shall be brought in the
district court for the district in which the alleged
violation occurred.
(2) Actions under subsection (a)(2).--Any action
brought under subsection (a)(2) may be brought in the
United States District Court for the District of
Columbia.
(c) Relief.--The district court shall have jurisdiction
in actions brought under subsection (a)(1) to enforce the
standard, regulation, condition, requirement, or order
concerned (including any provision of an agreement under
section 120), to order such action as may be necessary to
correct the violation, and to impose any civil penalty provided
for the violation. The district court shall have jurisdiction
in actions brought under subsection (a)(2) to order the
President or other officer to perform the act or duty
concerned.
(d) Rules Applicable to Subsection (a)(1) Actions.--
(1) Notice.--No action may be commenced under
subsection (a)(1) of this section before 60 days after
the plaintiff has given notice of the violation to each
of the following:
(A) The President.
(B) The State in which the alleged
violation occurs.
(C) Any alleged violator of the standard,
regulation, condition, requirement, or order
concerned (including any provision of an
agreement under section 120).
Notice under this paragraph shall be given in such
manner as the President shall prescribe by regulation.
(2) Diligent prosecution.--No action may be
commenced under paragraph (1) of subsection (a) if the
President has commenced and is diligently prosecuting
an action under this Act, or under the Solid Waste
Disposal Act to require compliance with the standard,
regulation, condition, requirement, or order concerned
(including any provision of an agreement under section
120).
(e) Rules Applicable to Subsection (a)(2) Actions.--No
action may be commenced under paragraph (2) of subsection (a)
before the 60th day following the date on which the plaintiff
gives notice to the Administrator or other department, agency,
or instrumentality that the plaintiff will commence such
action. Notice under this subsection shall be given in such
manner as the President shall prescribe by regulation.
(f) Costs.--The court, in issuing any final order in any
action brought pursuant to this section, may award costs of
litigation (including reasonable attorney and expert witness
fees) to the prevailing or the substantially prevailing party
whenever the court determines such an award is appropriate. The
court may, if a temporary restraining order or preliminary
injunction is sought, require the filing of a bond or
equivalent security in accordance with the Federal Rules of
Civil Procedure.
(g) Intervention.--In any action under this section, the
United States or the State, or both, if not a party may
intervene as a matter of right. For other provisions regarding
intervention, see section 113.
(h) Other Rights.--This Act does not affect or otherwise
impair the rights of any person under Federal, State, or common
law, except with respect to the timing of review as provided in
section 113(h) or as otherwise provided in section 309
(relating to actions under State law).
(i) Definitions.--The terms used in this section shall
have the same meanings as when used in title I.
[42 U.S.C. 9659]
SEC. 311. RESEARCH, DEVELOPMENT, AND DEMONSTRATION.
(a) Hazardous Substance Research and Training.--
(1) Authorities of secretary.--The Secretary of
Health and Human Services (hereinafter in this
subsection referred to as the Secretary), in
consultation with the Administrator, shall establish
and support a basic research and training program
(through grants, cooperative agreements, and contracts)
consisting of the following:
(A) Basic research (including epidemiologic
and ecologic studies) which may include each of
the following:
(i) Advanced techniques for the
detection, assessment, and evaluation
of the effects on human health of
hazardous substances.
(ii) Methods to assess the risks to
human health presented by hazardous
substances.
(iii) Methods and technologies to
detect hazardous substances in the
environment and basic biological,
chemical, and physical methods to
reduce the amount and toxicity of
hazardous substances.
(B) Training, which may include each of the
following:
(i) Short courses and continuing
education for State and local health
and environment agency personnel and
other personnel engaged in the handling
of hazardous substances, in the
management of facilities at which
hazardous substances are located, and
in the evaluation of the hazards to
human health presented by such
facilities.
(ii) Graduate or advanced training
in environmental and occupational
health and safety and in the public
health and engineering aspects of
hazardous waste control.
(iii) Graduate training in the
geosciences, including hydrogeology,
geological engineering, geophysics,
geochemistry, and related fields
necessary to meet professional
personnel needs in the public and
private sectors and to effectuate the
purposes of this Act.
(2) Director of niehs.--The Director of the
National Institute for Environmental Health Sciences
shall cooperate fully with the relevant Federal
agencies referred to in subparagraph (A) of paragraph
(5) in carrying out the purposes of this section.
(3) Recipients of grants, etc.--A grant,
cooperative agreement, or contract may be made or
entered into under paragraph (1) with an accredited
institution of higher education. The institution may
carry out the research or training under the grant,
cooperative agreement, or contract through contracts,
including contracts with any of the following:
(A) Generators of hazardous wastes.
(B) Persons involved in the detection,
assessment, evaluation, and treatment of
hazardous substances.
(C) Owners and operators of facilities at
which hazardous substances are located.
(D) State and local governments.
(4) Procedures.--In making grants and entering into
cooperative agreements and contracts under this
subsection, the Secretary shall act through the
Director of the National Institute for Environmental
Health Sciences. In considering the allocation of funds
for training purposes, the Director shall ensure that
at least one grant, cooperative agreement, or contract
shall be awarded for training described in each of
clauses (i), (ii), and (iii) of paragraph (1)(B). Where
applicable, the Director may choose to operate training
activities in cooperation with the Director of the
National Institute for Occupational Safety and Health.
The procedures applicable to grants and contracts under
title IV of the Public Health Service Act shall be
followed under this subsection.
(5) Advisory council.--To assist in the
implementation of this subsection and to aid in the
coordination of research and demonstration and training
activities funded from the Fund under this section, the
Secretary shall appoint an advisory council
(hereinafter in this subsection referred to as the
``Advisory Council'') which shall consist of
representatives of the following:
(A) The relevant Federal agencies.
(B) The chemical industry.
(C) The toxic waste management industry.
(D) Institutions of higher education.
(E) State and local health and
environmental agencies.
(F) The general public.
(6) Planning.--Within nine months after the date of
the enactment of this subsection, the Secretary, acting
through the Director of the National Institute for
Environmental Health Sciences, shall issue a plan for
the implementation of paragraph (1). The plan shall
include priorities for actions under paragraph (1) and
include research and training relevant to scientific
and technological issues resulting from site specific
hazardous substance response experience. The Secretary
shall, to the maximum extent practicable, take
appropriate steps to coordinate program activities
under this plan with the activities of other Federal
agencies in order to avoid duplication of effort. The
plan shall be consistent with the need for the
development of new technologies for meeting the goals
of response actions in accordance with the provisions
of this Act. The Advisory Council shall be provided an
opportunity to review and comment on the plan and
priorities and assist appropriate coordination among
the relevant Federal agencies referred to in
subparagraph (A) of paragraph (5).
(b) Alternative or Innovative Treatment Technology
Research and Demonstration Program.--
(1) Establishment.--The Administrator is authorized
and directed to carry out a program of research,
evaluation, testing, development, and demonstration of
alternative or innovative treatment technologies
(hereinafter in this subsection referred to as the
``program'') which may be utilized in response actions
to achieve more permanent protection of human health
and welfare and the environment.
(2) Administration.--The program shall be
administered by the Administrator, acting through an
office of technology demonstration and shall be
coordinated with programs carried out by the Office of
Solid Waste and Emergency Response and the Office of
Research and Development.
(3) Contracts and grants.--In carrying out the
program, the Administrator is authorized to enter into
contracts and cooperative agreements with, and make
grants to, persons, public entities, and nonprofit
private entities which are exempt from tax under
section 501(c)(3) of the Internal Revenue Code of 1954.
The Administrator shall, to the maximum extent
possible, enter into appropriate cost sharing
arrangements under this subsection.
(4) Use of sites.--In carrying out the program, the
Administrator may arrange for the use of sites at which
a response may be undertaken under section 104 for the
purposes of carrying out research, testing, evaluation,
development, and demonstration projects. Each such
project shall be carried out under such terms and
conditions as the Administrator shall require to assure
the protection of human health and the environment and
to assure adequate control by the Administrator of the
research, testing, evaluation, development, and
demonstration activities at the site.
(5) Demonstration assistance.--
(A) Program components.--The demonstration
assistance program shall include the following:
(i) The publication of a
solicitation and the evaluation of
applications for demonstration projects
utilizing alternative or innovative
technologies.
(ii) The selection of sites which
are suitable for the testing and
evaluation of innovative technologies.
(iii) The development of detailed
plans for innovative technology
demonstration projects.
(iv) The supervision of such
demonstration projects and the
providing of quality assurance for data
obtained.
(v) The evaluation of the results
of alternative innovative technology
demonstration projects and the
determination of whether or not the
technologies used are effective and
feasible.
(B) Solicitation.--Within 90 days after the
date of the enactment of this section, and no
less often than once every 12 months
thereafter, the Administrator shall publish a
solicitation for innovative or alternative
technologies at a stage of development suitable
for full-scale demonstrations at sites at which
a response action may be undertaken under
section 104. The purpose of any such project
shall be to demonstrate the use of an
alternative or innovative treatment technology
with respect to hazardous substances or
pollutants or contaminants which are located at
the site or which are to be removed from the
site. The solicitation notice shall prescribe
information to be included in the application,
including technical and economic data derived
from the applicant's own research and
development efforts, and other information
sufficient to permit the Administrator to
assess the technology's potential and the types
of remedial action to which it may be
applicable.
(C) Applications.--Any person and any
public or private nonprofit entity may submit
an application to the Administrator in response
to the solicitation. The application shall
contain a proposed demonstration plan setting
forth how and when the project is to be carried
out and such other information as the
Administrator may require.
(D) Project selection.--In selecting
technologies to be demonstrated, the
Administrator shall fully review the
applications submitted and shall consider at
least the criteria specified in paragraph (7).
The Administrator shall select or refuse to
select a project for demonstration under this
subsection within 90 days of receiving the
completed application for such project. In the
case of a refusal to select the project, the
Administrator shall notify the applicant within
such 90-day period of the reasons for his
refusal.
(E) Site selection.--The Administrator
shall propose 10 sites at which a response may
be undertaken under section 104 to be the
location of any demonstration project under
this subsection within 60 days after the close
of the public comment period. After an
opportunity for notice and public comment, the
Administrator shall select such sites and
projects. In selecting any such site, the
Administrator shall take into account the
applicant's technical data and preferences
either for onsite operation or for utilizing
the site as a source of hazardous substances or
pollutants or contaminants to be treated
offsite.
(F) Demonstration plan.--Within 60 days
after the selection of the site under this
paragraph to be the location of a demonstration
project, the Administrator shall establish a
final demonstration plan for the project, based
upon the demonstration plan contained in the
application for the project. Such plan shall
clearly set forth how and when the
demonstration project will be carried out.
(G) Supervision and testing.--Each
demonstration project under this subsection
shall be performed by the applicant, or by a
person satisfactory to the applicant, under the
supervision of the Administrator. The
Administrator shall enter into a written
agreement with each applicant granting the
Administrator the responsibility and authority
for testing procedures, quality control,
monitoring, and other measurements necessary to
determine and evaluate the results of the
demonstration project. The Administrator may
pay the costs of testing, monitoring, quality
control, and other measurements required by the
Administrator to determine and evaluate the
results of the demonstration project, and the
limitations established by subparagraph (J)
shall not apply to such costs.
(H) Project completion.--Each demonstration
project under this subsection shall be
completed within such time as is established in
the demonstration plan.
(I) Extensions.--The Administrator may
extend any deadline established under this
paragraph by mutual agreement with the
applicant concerned.
(J) Funding restrictions.--The
Administrator shall not provide any Federal
assistance for any part of a full-scale field
demonstration project under this subsection to
any applicant unless such applicant can
demonstrate that it cannot obtain appropriate
private financing on reasonable terms and
conditions sufficient to carry out such
demonstration project without such Federal
assistance. The total Federal funds for any
full-scale field demonstration project under
this subsection shall not exceed 50 percent of
the total cost of such project estimated at the
time of the award of such assistance. The
Administrator shall not expend more than
$10,000,000 for assistance under the program in
any fiscal year and shall not expend more than
$3,000,000 for any single project.
(6) Field demonstrations.--In carrying out the
program, the Administrator shall initiate or cause to
be initiated at least 10 field demonstration projects
of alternative or innovative treatment technologies at
sites at which a response may be undertaken under
section 104, in fiscal year 1987 and each of the
succeeding three fiscal years. If the Administrator
determines that 10 field demonstration projects under
this subsection cannot be initiated consistent with the
criteria set forth in paragraph (7) in any of such
fiscal years, the Administrator shall transmit to the
appropriate committees of Congress a report explaining
the reasons for his inability to conduct such
demonstration projects.
(7) Criteria.--In selecting technologies to be
demonstrated under this subsection, the Administrator
shall, consistent with the protection of human health
and the environment, consider each of the following
criteria:
(A) The potential for contributing to
solutions to those waste problems which pose
the greatest threat to human health, which
cannot be adequately controlled under present
technologies, or which otherwise pose
significant management difficulties.
(B) The availability of technologies which
have been sufficiently developed for field
demonstration and which are likely to be cost
effective and reliable.
(C) The availability and suitability of
sites for demonstrating such technologies,
taking into account the physical, biological,
chemical, and geological characteristics of the
sites, the extent and type of contamination
found at the site, and the capability to
conduct demonstration projects in such a manner
as to assure the protection of human health and
the environment.
(D) The likelihood that the data to be
generated from the demonstration project at the
site will be applicable to other sites.
(8) Technology transfer.--In carrying out the
program, the Administrator shall conduct a technology
transfer program including the development, collection,
evaluation, coordination, and dissemination of
information relating to the utilization of alternative
or innovative treatment technologies for response
actions. The Administrator shall establish and maintain
a central reference library for such information. The
information maintained by the Administrator shall be
made available to the public, subject to the provisions
of section 552 of title 5 of the United States Code and
section 1905 of title 18 of the United States Code, and
to other Government agencies in a manner that will
facilitate its dissemination; except, that upon a
showing satisfactory to the Administrator by any person
that any information or portion thereof obtained under
this subsection by the Administrator directly or
indirectly from such person, would, if made public,
divulge--
(A) trade secrets; or
(B) other proprietary information of such
person,
the Administrator shall not disclose such information
and disclosure thereof shall be punishable under
section 1905 of title 18 of the United States Code.
This subsection is not authority to withhold
information from Congress or any committee of Congress
upon the request of the chairman of such committee.
(9) Training.--The Administrator is authorized and
directed to carry out, through the Office of Technology
Demonstration, a program of training and an evaluation
of training needs for each of the following:
(A) Training in the procedures for the
handling and removal of hazardous substances
for employees who handle hazardous substances.
(B) Training in the management of
facilities at which hazardous substances are
located and in the evaluation of the hazards to
human health presented by such facilities for
State and local health and environment agency
personnel.
(10) Definition.--For purposes of this subsection,
the term ``alternative or innovative treatment
technologies'' means those technologies, including
proprietary or patented methods, which permanently
alter the composition of hazardous waste through
chemical, biological, or physical means so as to
significantly reduce the toxicity, mobility, or volume
(or any combination thereof) of the hazardous waste or
contaminated materials being treated. The term also
includes technologies that characterize or assess the
extent of contamination, the chemical and physical
character of the contaminants, and the stresses imposed
by the contaminants on complex ecosystems at sites.
(c) Hazardous Substance Research.--The Administrator may
conduct and support, through grants, cooperative agreements,
and contracts, research with respect to the detection,
assessment, and evaluation of the effects on and risks to human
health of hazardous substances and detection of hazardous
substances in the environment. The Administrator shall
coordinate such research with the Secretary of Health and Human
Services, acting through the advisory council established under
this section, in order to avoid duplication of effort.
(d) University Hazardous Substance Research Centers.--
(1) Grant program.--The Administrator shall make
grants to institutions of higher learning to establish
and operate not fewer than 5 hazardous substance
research centers in the United States. In carrying out
the program under this subsection, the Administrator
should seek to have established and operated 10
hazardous substance research centers in the United
States.
(2) Responsibilities of centers.--The
responsibilities of each hazardous substance research
center established under this subsection [shall
include, but not be limited to, the conduct of
research] shall include--
(A) the conduct of research and training
relating to the manufacture, use,
transportation, disposal, and management of
hazardous substances and publication and
dissemination of the results of such
research[.]; and
(B) the conduct of a program to provide to
affected communities educational and technical
assistance to and information regarding the
effects or potential effects of the
contamination on human health and the
environment.
(3) Applications.--Any institution of higher
learning interested in receiving a grant under this
subsection shall submit to the Administrator an
application in such form and containing such
information as the Administrator may require by
regulation.
(4) Selection criteria.--The Administrator shall
select recipients of grants under this subsection on
the basis of the following criteria:
(A) The hazardous substance research center
shall be located in a State which is
representative of the needs of the region in
which such State is located for improved
hazardous waste management.
(B) The grant recipient shall be located in
an area which has experienced problems with
hazardous substance management.
(C) There is available to the grant
recipient for carrying out this subsection
demonstrated research resources.
(D) The capability of the grant recipient
to provide leadership in making national and
regional contributions to the solution of both
long-range and immediate hazardous substance
management problems.
(E) The grant recipient shall make a
commitment to support ongoing hazardous
substance research programs with budgeted
institutional funds of at least $100,000 per
year.
(F) The grant recipient shall have an
interdisciplinary staff with demonstrated
expertise in hazardous substance management and
research.
(G) The grant recipient shall have a
demonstrated ability to disseminate results of
hazardous substance research and educational
programs through an interdisciplinary
continuing education program.
(H) The projects which the grant recipient
proposes to carry out under the grant are
necessary and appropriate.
(5) Maintenance of effort.--No grant may be made
under this subsection in any fiscal year unless the
recipient of such grant enters into such agreements
with the Administrator as the Administrator may require
to ensure that such recipient will maintain its
aggregate expenditures from all other sources for
establishing and operating a regional hazardous
substance research center and related research
activities at or above the average level of such
expenditures in its 2 fiscal years preceding the date
of the enactment of this subsection.
(6) Federal share.--The Federal share of a grant
under this subsection shall not exceed 80 percent of
the costs of establishing and operating the regional
hazardous substance research center and related
research activities carried out by the grant recipient.
(7) Limitation on use of funds.--No funds made
available to carry out this subsection shall be used
for acquisition of real property (including buildings)
or construction of any building.
(8) Administration through the office of the
administrator.--Administrative responsibility for
carrying out this subsection shall be in the Office of
the Administrator.
(9) Equitable distribution of funds.--The
Administrator shall allocate funds made available to
carry out this subsection equitably among the regions
of the United States.
(10) Technology transfer activities.--Not less than
five percent of the funds made available to carry out
this subsection for any fiscal year shall be available
to carry out technology transfer activities.
(e) Report to Congress.--[At the time]
(1) In general.--At the time of the submission of
the annual budget request to Congress, the
Administrator shall submit to the appropriate
committees of the House of Representatives and the
Senate and to the advisory council established under
subsection (a), a report on the progress of the
research, development, and demonstration program
authorized by subsection (b), including an evaluation
of each demonstration project completed in the
preceding fiscal year, findings with respect to the
efficacy of such demonstrated technologies in achieving
permanent and significant reductions in risk from
hazardous wastes, the costs of such demonstration
projects, and the potential applicability of, and
projected costs for, such technologies at other
hazardous substance sites.
(2) Additional information.--A report under
paragraph (1) shall include information on the use of
facilities described in subsection (h)(1) for the
research, development, and application of innovative
technologies for remedial activity, as authorized under
subsection (h).
(f) Saving Provision.--Nothing in this section shall be
construed to affect the provisions of the Solid Waste Disposal
Act.
(g) Small Business Participation.--The Administrator shall
ensure, to the maximum extent practicable, an adequate
opportunity for small business participation in the program
established by subsection (b).
(h) Federal Facilities.--
(1) Designation.--The President may designate a
facility that is owned or operated by any department,
agency, or instrumentality of the United States, and
that is listed or proposed for listing on the National
Priorities List, to facilitate the research,
development, and application of innovative technologies
for remedial action at the facility.
(2) Use of facilities.--
(A) In general.--A facility designated
under paragraph (1) shall be made available to
Federal departments and agencies, State
departments and agencies, and public and
private instrumentalities, to carry out
activities described in paragraph (1).
(B) Coordination.--The Administrator--
(i) shall coordinate the use of the
facilities with the departments,
agencies, and instrumentalities of the
United States; and
(ii) may approve or deny the use of
a particular innovative technology for
remedial action at any such facility.
(3) Considerations.--
(A) Evaluation of schedules and
penalties.--In considering whether to permit
the application of a particular innovative
technology for remedial action at a facility
designated under paragraph (1), the
Administrator shall evaluate the schedules and
penalties applicable to the facility under any
agreement or order entered into under section
120.
(B) Amendment of agreement or order.--If,
after an evaluation under subparagraph (A), the
Administrator determines that there is a need
to amend any agreement or order entered into
pursuant to section 120, the Administrator
shall comply with all provisions of the
agreement or order, respectively, relating to
the amendment of the agreement or order.
[42 U.S.C. 9660]
SEC. 312. LOVE CANAL PROPERTY ACQUISITION. \67\
(a) Acquisition of Property in Emergency Declaration
Area.--The Administrator of the Environmental Protection Agency
(hereinafter referred to as the ``Administrator'') may make
grants not to exceed $2,500,000 to the State of New York (or to
any duly constituted public agency or authority thereof) for
purposes of acquisition of private property in the Love Canal
Emergency Declaration Area. Such acquisition shall include (but
shall not be limited to) all private property within the
Emergency Declaration Area, including non-owner occupied
residential properties, commercial, industrial, public,
religious, non-profit, and vacant properties.
---------------------------------------------------------------------------
\67\ For additional provisions relating to this section, see
section 213 of SARA of 1986 in this print.
---------------------------------------------------------------------------
(b) Procedures for Acquisition.--No property shall be
acquired pursuant to this section unless the property owner
voluntarily agrees to such acquisition. Compensation for any
property acquired pursuant to this section shall be based upon
the fair market value of the property as it existed prior to
the emergency declaration. Valuation procedures for property
acquired with funds provided under this section shall be in
accordance with those set forth in the agreement entered into
between the New York State Disaster Preparedness Commission and
the Love Canal Revitalization Agency on October 9, 1980.
(c) State Ownership.--The Administrator shall not provide
any funds under this section for the acquisition of any
properties pursuant to this section unless a public agency or
authority of the State of New York first enters into a
cooperative agreement with the Administrator providing
assurances deemed adequate by the Administrator that the State
or an agency created under the laws of the State shall take
title to the properties to be so acquired.
(d) Maintenance of Property.--The Administrator shall
enter into a cooperative agreement with an appropriate public
agency or authority of the State of New York under which the
Administrator shall maintain or arrange for the maintenance of
all properties within the Emergency Declaration Area that have
been acquired by any public agency or authority of the State.
Ninety (90) percent of the costs of such maintenance shall be
paid by the Administrator. The remaining portion of such costs
shall be paid by the State (unless a credit is available under
section 104(c)). The Administrator is authorized, in his
discretion, to provide technical assistance to any public
agency or authority of the State of New York in order to
implement the recommendations of the habitability and land-use
study in order to put the land within the Emergency Declaration
Area to its best use.
(e) Habitability and Land Use Study.--The Administrator
shall conduct or cause to be conducted a habitability and land-
use study. The study shall--
(1) assess the risks associated with inhabiting of
the Love Canal Emergency Declaration Area;
(2) compare the level of hazardous waste
contamination in that Area to that present in other
comparable communities; and
(3) assess the potential uses of the land within
the Emergency Declaration Area, including but not
limited to residential, industrial, commercial and
recreational, and the risks associated with such
potential uses.
The Administrator shall publish the findings of such study and
shall work with the State of New York to develop
recommendations based upon the results of such study.
(f) Funding.--For purposes of section 111 and 221(c) of
this Act, \68\ the expenditures authorized by this section
shall be treated as a cost specified in section 111(c).
---------------------------------------------------------------------------
\68\ So in original. Section 221 of CERCLA was repealed by section
517(c) of title V of SARA of 1986 (Public Law 99-499).
---------------------------------------------------------------------------
(g) Response.--The provisions of this section shall not
affect the implementation of other response actions within the
Emergency Declaration Area that the Administrator has
determined (before enactment of this section) to be necessary
to protect the public health or welfare or the environment.
(h) Definitions.--For purposes of this section:
(1) Emergency declaration area.--The terms
``Emergency Declaration Area'' and ``Love Canal
Emergency Declaration Area'' mean the Emergency
Declaration Area as defined in section 950, paragraph
(2) of the General Municipal Law of the State of New
York, Chapter 259, Laws of 1980, as in effect on the
date of the enactment of this section.
(2) Private property.--As used in subsection (a),
the term ``private property'' means all property which
is not owned by a department, agency, or
instrumentality of--
(A) the United States, or
(B) the State of New York (or any public
agency or authority thereof).
[42 U.S.C. 9661]
TITLE IV--POLLUTION INSURANCE
SEC. 401. DEFINITIONS.
As used in this title--
(1) Insurance.--The term ``insurance'' means
primary insurance, excess insurance, reinsurance,
surplus lines insurance, and any other arrangement for
shifting and distributing risk which is determined to
be insurance under applicable State or Federal law.
(2) Pollution liability.--The term ``pollution
liability'' means liability for injuries arising from
the release of hazardous substances or pollutants or
contaminants.
(3) Risk retention group.--The term ``risk
retention group'' means any corporation or other
limited liability association taxable as a corporation,
or as an insurance company, formed under the laws of
any State--
(A) whose primary activity consists of
assuming and spreading all, or any portion, of
the pollution liability of its group members;
(B) which is organized for the primary
purpose of conducting the activity described
under subparagraph (A);
(C) which is chartered or licensed as an
insurance company and authorized to engage in
the business of insurance under the laws of any
State; and
(D) which does not exclude any person from
membership in the group solely to provide for
members of such a group a competitive advantage
over such a person.
(4) Purchasing group.--The term ``purchasing
group'' means any group of persons which has as one of
its purposes the purchase of pollution liability
insurance on a group basis.
(5) State.--The term ``State'' means any State of
the United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the
Virgin Islands, the Commonwealth of the Northern
Marianas, and any other territory or possession over
which the United States has jurisdiction.
[42 U.S.C. 9671]
SEC. 402. STATE LAWS; SCOPE OF TITLE.
(a) State Laws.--Nothing in this title shall be construed
to affect either the tort law or the law governing the
interpretation of insurance contracts of any State. The
definitions of pollution liability and pollution liability
insurance under any State law shall not be applied for the
purposes of this title, including recognition or qualification
of risk retention groups or purchasing groups.
(b) Scope of Title.--The authority to offer or to provide
insurance under this title shall be limited to coverage of
pollution liability risks and this title does not authorize a
risk retention group or purchasing group to provide coverage of
any other line of insurance.
[42 U.S.C. 9672]
SEC. 403. RISK RETENTION GROUPS.
(a) Exemption.--Except as provided in this section, a
risk retention group shall be exempt from the following:
(1) A State law, rule, or order which makes
unlawful, or regulates, directly or indirectly, the
operation of a risk retention group.
(2) A State law, rule, or order which requires or
permits a risk retention group to participate in any
insurance insolvency guaranty association to which an
insurer licensed in the State is required to belong.
(3) A State law, rule, or order which requires any
insurance policy issued to a risk retention group or
any member of the group to be countersigned by an
insurance agent or broker residing in the State.
(4) A State law, rule, or order which otherwise
discriminates against a risk retention group or any of
its members.
(b) Exceptions.--
(1) State laws generally applicable.--Nothing in
subsection (a) shall be construed to affect the
applicability of State laws generally applicable to
persons or corporations. The State in which a risk
retention group is chartered may regulate the formation
and operation of the group.
(2) State regulations not subject to exemption.--
Subsection (a) shall not apply to any State law which
requires a risk retention group to do any of the
following:
(A) Comply with the unfair claim settlement
practices law of the State.
(B) Pay, on a nondiscriminatory basis,
applicable premium and other taxes which are
levied on admitted insurers and surplus line
insurers, brokers, or policyholders under the
laws of the State.
(C) Participate, on a nondiscriminatory
basis, in any mechanism established or
authorized under the law of the State for the
equitable apportionment among insurers of
pollution liability insurance losses and
expenses incurred on policies written through
such mechanism.
(D) Submit to the appropriate authority
reports and other information required of
licensed insurers under the laws of a State
relating solely to pollution liability
insurance losses and expenses.
(E) Register with and designate the State
insurance commissioner as its agent solely for
the purpose of receiving service of legal
documents or process.
(F) Furnish, upon request, such
commissioner a copy of any financial report
submitted by the risk retention group to the
commissioner of the chartering or licensing
jurisdiction.
(G) Submit to an examination by the State
insurance commissioner in any State in which
the group is doing business to determine the
group's financial condition, if--
(i) the commissioner has reason to
believe the risk retention group is in
a financially impaired condition; and
(ii) the commissioner of the
jurisdiction in which the group is
chartered has not begun or has refused
to initiate an examination of the
group.
(H) Comply with a lawful order issued in a
delinquency proceeding commenced by the State
insurance commissioner if the commissioner of
the jurisdiction in which the group is
chartered has failed to initiate such a
proceeding after notice of a finding of
financial impairment under subparagraph (G).
(c) Application of Exemptions.--The exemptions specified
in subsection (a) apply to--
(1) pollution liability insurance coverage provided
by a risk retention group for--
(A) such group; or
(B) any person who is a member of such
group;
(2) the sale of pollution liability insurance
coverage for a risk retention group; and
(3) the provision of insurance related services or
management services for a risk retention group or any
member of such a group.
(d) Agents or Brokers.--A State may require that a person
acting, or offering to act, as an agent or broker for a risk
retention group obtain a license from that State, except that a
State may not impose any qualification or requirement which
discriminates against a nonresident agent or broker.
[42 U.S.C. 9673]
SEC. 404. PURCHASING GROUPS.
(a) Exemption.--Except as provided in this section, a
purchasing group is exempt from the following:
(1) A State law, rule, or order which prohibits the
establishment of a purchasing group.
(2) A State law, rule, or order which makes it
unlawful for an insurer to provide or offer to provide
insurance on a basis providing, to a purchasing group
or its member, advantages, based on their loss and
expense experience, not afforded to other persons with
respect to rates, policy forms, coverages, or other
matters.
(3) A State law, rule, or order which prohibits a
purchasing group or its members from purchasing
insurance on the group basis described in paragraph (2)
of this subsection.
(4) A State law, rule, or order which prohibits a
purchasing group from obtaining insurance on a group
basis because the group has not been in existence for a
minimum period of time or because any member has not
belonged to the group for a minimum period of time.
(5) A State law, rule, or order which requires that
a purchasing group must have a minimum number of
members, common ownership or affiliation, or a certain
legal form.
(6) A State law, rule, or order which requires that
a certain percentage of a purchasing group must obtain
insurance on a group basis.
(7) A State law, rule, or order which requires that
any insurance policy issued to a purchasing group or
any members of the group be countersigned by an
insurance agent or broker residing in that State.
(8) A State law, rule, or order which otherwise
discriminate \69\ against a purchasing group or any of
its members.
---------------------------------------------------------------------------
\69\ So in law. Probably should be ``discriminates''.
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(b) Application of Exemptions.--The exemptions specified
in subsection (a) apply to the following:
(1) Pollution liability insurance, and
comprehensive general liability insurance which
includes this coverage, provided to--
(A) a purchasing group; or
(B) any person who is a member of a
purchasing group.
(2) The sale of any one of the following to a
purchasing group or a member of the group:
(A) Pollution liability insurance and
comprehensive general liability coverage.
(B) Insurance related services.
(C) Management services.
(c) Agents or Brokers.--A State may require that a person
acting, or offering to act, as an agent or broker for a
purchasing group obtain a license from that State, except that
a State may not impose any qualification or requirement which
discriminates against a nonresident agent or broker.
[42 U.S.C. 9674]
SEC. 405. APPLICABILITY OF SECURITIES LAWS.
(a) Ownership Interests.--The ownership interests of
members of a risk retention group shall be considered to be--
(1) exempted securities for purposes of section 5
of the Securities Act of 1933 and for purposes of
section 12 of the Securities Exchange Act of 1934; and
(2) securities for purposes of the provisions of
section 17 of the Securities Act of 1933 and the
provisions of section 10 of the Securities Exchange Act
of 1934.
(b) Investment Company Act.--A risk retention group shall
not be considered to be an investment company for purposes of
the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.).
(c) Blue Sky Law.--The ownership interests of members in
a risk retention group shall not be considered securities for
purposes of any State blue sky law.
[42 U.S.C. 9675]
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UNITED STATES CODE
TITLE 10--ARMED FORCES
* * * * * * *
SEC. 2705. NOTICE OF ENVIRONMENTAL RESTORATION ACTIVITIES.
(a) * * *
* * * * * * *
(e) Assistance for Citizen Participation.--
(1) Using funds made available under paragraph (3),
the Secretary may make technical assistance grants
under section [117(e)] 117(f) of the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980 [(42 U.S.C. 9617(e))] (42 U.S.C. 9617(f)) in
connection with installations containing facilities
listed on the National Priorities List.