[House Report 106-775]
[From the U.S. Government Publishing Office]
106th Congress Rept. 106-775
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
LAND RECYCLING ACT OF 1999
_______
July 20, 2000.--Ordered to be printed
_______
Mr. Bliley, from the Committee on Commerce, submitted the following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 2580]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, to whom was referred the bill
(H.R. 2580) to encourage the creation, development, and
enhancement of State response programs for contaminated sites,
removing existing Federal barriers to the cleanup of brownfield
sites, and cleaning up and returning contaminated sites to
economically productive or other beneficial uses, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 35
Background and Need for Legislation.............................. 36
Hearings......................................................... 47
Committee Consideration.......................................... 48
Committee Votes.................................................. 48
Committee Oversight Findings..................................... 60
Committee on Government Reform Oversight Findings................ 60
New Budget Authority, Entitlement Authority, and Tax Expenditures 60
Committee Cost Estimate.......................................... 60
Congressional Budget Office Estimate............................. 60
Federal Mandates Statement....................................... 69
Advisory Committee Statement..................................... 69
Constitutional Authority Statement............................... 69
Applicability to Legislative Branch.............................. 69
Section-by-Section Analysis of the Legislation................... 70
Administration Views............................................. 92
Changes in Existing Law Made by the Bill, as Reported............ 96
Additional and Dissenting Views................................160, 164
Amendment
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Land Recycling Act
of 1999''.
(b) Table of Contents.--
Sec. 1. Short title; table of contents.
Sec. 2. Amendments to Comprehensive Environmental Response,
Compensation, and Liability Act of 1980.
TITLE I--LAND RECYCLING
Sec. 101. Findings.
Sec. 102. Cleanups pursuant to State response programs.
Sec. 103. Additions to National Priorities List.
Sec. 104. Innocent landowners.
Sec. 105. Bona fide prospective purchaser liability.
Sec. 106. Innocent governmental entities.
Sec. 107. Contiguous properties.
Sec. 108. Remedy selection.
Sec. 109. Brownfields grants.
TITLE II--EXPENDITURES FROM THE HAZARDOUS SUBSTANCE SUPERFUND
Sec. 201. Expenditures from the Hazardous Substance Superfund.
Sec. 202. Authorization of appropriations from general revenues.
Sec. 203. Completion of National Priorities List.
TITLE III--LIABILITY REFORM
Sec. 301. Liability relief for innocent parties.
Sec. 302. Clarifications of certain liability.
Sec. 303. Federal entities and facilities.
Sec. 304. Liability relief for small businesses, municipal solid waste,
sewage sludge, municipal owners and operators, and de micromis
contributors.
Sec. 305. Liability of response action contractors.
Sec. 306. Amendments to section 122.
Sec. 307. Clarification of liability for recycling transactions.
Sec. 308. Allocation.
Sec. 309. Standard for cleanup by dry cleaners.
TITLE IV--PUBLIC HEALTH
Sec. 401. Public health authorities.
Sec. 402. Indian health provisions.
Sec. 403. Hazard ranking system.
Sec. 404. Disclosure of releases of hazardous substances at Superfund
sites.
SEC. 2. AMENDMENTS TO COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT OF 1980.
Except as otherwise specifically provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision of law, the reference shall be
considered to be made to a section or other provision of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9601 et seq.).
TITLE I--LAND RECYCLING
SEC. 101. FINDINGS.
(a) Findings.--Congress finds the following:
(1) Brownfields are parcels of land that contain or contained
abandoned or under used commercial or industrial facilities,
the expansion or redevelopment of which is complicated by the
actual or potential presence of hazardous substances,
pollutants, or contaminants.
(2) Brownfields, which may number in the hundreds of
thousands nationwide, threaten the environment, devalue
surrounding property, erode State and local tax bases, and
prevent job growth.
(3) The primary environmental reason that current owners and
prospective developers do not redevelop brownfields is their
fear about the potential liability under environmental laws
associated with the cleanup and redevelopment of these sites.
(4) Current Federal law poses a barrier to the cleanup and
redevelopment of brownfields, leading instead to the
development of so-called greenfields, contributing to urban
sprawl, creating infrastructure problems, and reducing
recreational and agricultural opportunities.
(5) Cleanup and redevelopment of brownfields will reduce
environmental contamination, encourage job growth, enhance
State and local tax bases, and curb the development of
greenfields.
(6) Many States have enacted cleanup programs to address the
brownfields problem by allowing for the consideration of future
land use in deciding appropriate cleanup standards and
providing clear releases of liability upon completion of
cleanups.
(7) State response programs have been very effective in
promoting the cleanup and redevelopment of brownfields while
ensuring the adequate protection of human health and the
environment.
(b) Purposes and Objectives.--The purposes and objectives of this
title are--
(1) to increase significantly the pace of response activities
at contaminated sites by promoting and encouraging the
creation, development, and enhancement of State response
programs; and
(2) to remove existing Federal barriers to the cleanup of
brownfield sites;
(3) to benefit the public health, welfare, and the
environment by cleaning up and returning contaminated sites to
economically productive or other beneficial uses; and
(4) to provide finality and certainty by insuring that the
President does not use certain authorities to override State
remediation decisions unless there are exceptional
circumstances.
SEC. 102. CLEANUPS PURSUANT TO STATE RESPONSE PROGRAMS.
(a) Prohibition on Enforcement.--Except as otherwise provided in this
section, neither the President nor any other person (other than a
State) may use any authority of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et
seq.) or section 7002(a)(1)(B) or section 7003 of the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.) to commence an administrative or
judicial action under either of those Acts with respect to any release
or threatened release at a facility that is, or has been, the subject
of a response action pursuant to a State program that meets the
requirements of subsection (b).
(b) State Requirements.--The prohibition in subsection (a) applies
with respect to a facility that is, or has been, the subject of a
response action pursuant to a State program for undertaking response
actions at facilities where there is a release or threatened release of
hazardous substances if such program has been submitted to the
Administrator of the Environmental Protection Agency together with a
certification by the State that--
(1) the State has enacted such program into law,
(2) the State has committed the financial and personnel
resources necessary to carry out such program,
(3) such program will be implemented in a manner protective
of human health and the environment, and
(4) such program includes meaningful opportunities for public
participation.
(c) Limitation on Prohibition.--The prohibition under subsection (a)
and the exemption under subsection (e) shall not apply with respect to
any of the following:
(1) Any facility listed on the National Priorities List,
unless the Administrator, on a facility-by-facility basis and
pursuant to an agreement with the State concerned, makes a
finding that a facility listed on the National Priorities List
is eligible to participate in a State cleanup program meeting
the requirements of subsection (b).
(2) Any facility for which the Governor of a State has
requested Environmental Protection Agency assistance to perform
a response action.
(3) Any facility owned or operated by a department, agency,
or instrumentality of the United States.
(4) A release or threatened release to the extent that a
response action has been required pursuant to an administrative
order or judicial order or decree entered into by the United
States under any of the following laws before the commencement
of a response action pursuant to a State program described in
subsection (a):
(A) The Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.).
(B) The Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.).
(C) The Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.).
(D) The Toxic Substances Control Act (15 U.S.C. 2601
et seq.).
(E) Title XIV of the Public Health Service Act
(commonly known as the Safe Drinking Water Act) (42
U.S.C. 300f et seq.).
(5) A release or threatened release for which response
actions are immediately required to prevent or mitigate a
public health or environmental emergency and for which the
State is not responding in a timely manner.
(d) Prior Actions.--Nothing in this section shall affect
administrative or judicial action commenced prior to the date of
enactment of this section.
(e) Permits and Other Requirements.--(1) Effective 18 months after
enactment of this Act, no Federal permit or permit revision shall be
required for the on-site portion of response actions that are subject
to the prohibition under subsection (a). Nothing in this paragraph
diminishes the application of substantive standards required by law.
(2) Within 12 months after enactment of this Act and after public
notice and comment and consultation with State Governors, the
Administrator shall promulgate regulations which streamline any
reporting requirements connected with implementation of substantive
requirements of Federal law and consistent with paragraph (1).
(f) Assistance to States.--The Administrator shall provide technical,
financial, and other assistance to States to establish and enhance
State response programs. The Administrator shall encourage the States
to develop risk sharing pools, indemnity pools, or insurance mechanisms
to provide financing for response actions under their response
programs.
(g) Effect of Response.--Performance of a response action pursuant to
a State program under this section shall not constitute an admission of
liability under any Federal, State, or local law or regulation or in
any citizens suit or other private action.
SEC. 103. ADDITIONS TO NATIONAL PRIORITIES LIST.
(a) Additions to NPL.--Section 105 (42 U.S.C. 9605) is amended by
adding at the end the following new subsection:
``(h) Additions to NPL.--(1) The President may add a facility to the
National Priorities List only after requesting and obtaining the
concurrence of the Governor of the State in which the facility is
located. If the Governor assures the President that the State is
addressing, or will address, the site under State authority, and the
Governor does not concur in the listing of the site, the President
shall not list the site.
``(2) Notwithstanding paragraph (1), the President may add a facility
to the National Priorities List if--
``(A) the release or threatened release affects public health
or the environment in more than one State, unless the Governors
of each such State fail to concur, upon request by the
President, in the listing of the site; or
``(B) the President finds that the State where the facility
is located is a major potentially responsible party at that
facility.''.
(b) Cross Reference.--Subparagraph (B) of section 105(a)(8) is
amended by inserting after ``shall revise the list'' the following: ``,
subject to subsection (h),''.
SEC. 104. INNOCENT LANDOWNERS.
(a) In General.--Section 107 (42 U.S.C. 9607) is amended by adding at
the end the following new subsection:
``(o) Innocent Landowners.--
``(1) Conduct of environmental assessment.--A person who has
acquired real property shall have made all appropriate inquiry
within the meaning of subparagraph (B) of section 101(35) if he
establishes that, within 180 days prior to the time of
acquisition, an environmental site assessment of the real
property was conducted that meets the requirements of this
subsection.
``(2) Definition of environmental site assessment.--For
purposes of this subsection, the term `environmental site
assessment' means an assessment conducted in accordance with
the standards set forth in the American Society for Testing and
Materials (ASTM) Standard E1527-94, titled `Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process' or with alternative standards issued by
rule by the Administrator or promulgated or developed by others
and designated by rule by the Administrator. Before issuing or
designating alternative standards, the Administrator shall
first conduct a study of commercial and industrial practices
concerning environmental site assessments in the transfer of
real property in the United States. Any such standards issued
or designated by the Administrator shall also be deemed to
constitute commercially reasonable and generally accepted
standards and practices for purposes of this paragraph. In
issuing or designating any such standards, the Administrator
shall consider requirements governing each of the following:
``(A) Interviews of owners, operators, and occupants
of the property to determine information regarding the
potential for contamination.
``(B) Review of historical sources as necessary to
determine previous uses and occupancies of the property
since the property was first developed. For purposes of
this subparagraph, the term `historical sources' means
any of the following, if they are reasonably
ascertainable: recorded chain of title documents
regarding the real property, including all deeds,
easements, leases, restrictions, and covenants, aerial
photographs, fire insurance maps, property tax files,
USGS 7.5 minutes topographic maps, local street
directories, building department records, zoning/land
use records, and any other sources that identify past
uses and occupancies of the property.
``(C) Determination of the existence of recorded
environmental cleanup liens against the real property
which have arisen pursuant to Federal, State, or local
statutes.
``(D) Review of reasonably ascertainable Federal,
State, and local government records of sites or
facilities that are likely to causeor contribute to
contamination at the real property, including, as appropriate,
investigation reports for such sites or facilities; records of
activities likely to cause or contribute to contamination at the real
property, including landfill and other disposal location records,
underground storage tank records, hazardous waste handler and generator
records and spill reporting records; and such other reasonably
ascertainable Federal, State, and local government environmental
records which could reflect incidents or activities which are likely to
cause or contribute to contamination at the real property.
``(E) A visual site inspection of the real property
and all facilities and improvements on the real
property and a visual inspection of immediately
adjacent properties, including an investigation of any
hazardous substance use, storage, treatment, and
disposal practices on the property.
``(F) Any specialized knowledge or experience on the
part of the defendant.
``(G) The relationship of the purchase price to the
value of the property if uncontaminated.
``(H) Commonly known or reasonably ascertainable
information about the property.
``(I) The obviousness of the presence or likely
presence of contamination at the property, and the
ability to detect such contamination by appropriate
investigation.
A record shall be considered to be `reasonably ascertainable'
for purposes of this paragraph if a copy or reasonable
facsimile of the record is publicly available by request
(within reasonable time and cost constraints) and the record is
practically reviewable.
``(3) Maintenance of information.--No presumption shall arise
under paragraph (1) unless the defendant has maintained a
compilation of the information reviewed and gathered in the
course of the environmental site assessment.''.
(b) Cross Reference.--Section 101(35)(B) (42 U.S.C. 9601(35)(B)) is
amended by inserting after ``all appropriate inquiry'' the following:
``(as specified in section 107(o))''.
SEC. 105. BONA FIDE PROSPECTIVE PURCHASER LIABILITY.
(a) Liability.--Section 107 (42 U.S.C. 9607) is further amended by
adding at the end the following new subsections:
``(p) Bona Fide Prospective Purchaser.--(1) Notwithstanding
paragraphs (1) through (4) of subsection (a), a person who does not
impede the performance of a response action or natural resource
restoration at a facility shall not be liable to the extent liability
at such facility is based solely on paragraph (1) of subsection (a) for
a release or threat of release from the facility, and the person is a
bona fide prospective purchaser of the facility.
``(2) For purposes of this subsection, the term `bona fide
prospective purchaser' means a person who acquires ownership of a
facility after the date of enactment of this subsection, or a tenant of
such a person, who can establish each of the following by a
preponderance of the evidence:
``(A) All active disposal of hazardous substances at the
facility occurred before that person acquired the facility.
``(B) The person made all appropriate inquiry into the
previous ownership and uses of the facility and its real
property in accordance with generally accepted commercial and
customary standards and practices. Standards described in
subsection (o)(2) (relating to innocent landowners) shall
satisfy the requirements of this subparagraph. In the case of
property for residential or other similar use, purchased by a
nongovernmental or noncommercial entity, a site inspection and
title search that reveal no basis for further investigation
satisfy the requirements of this subparagraph.
``(C) The person provided all legally required notices with
respect to the discovery or release of any hazardous substances
at the facility.
``(D) The person exercised appropriate care with respect to
hazardous substances found at the facility by taking reasonable
steps to stop on-going releases, prevent threatened future
releases of hazardous substances, and prevent or limit human or
natural resource exposure to hazardous substances previously
released into the environment.
``(E) The person provides full cooperation, assistance, and
facility access to persons authorized to conduct 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.
``(F) The person is not affiliated with any other person
liable for 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.
``(q) Prospective Purchaser and Windfall Lien.--(1) In any case in
which there are unrecovered response costs at a facility for which an
owner of the facility is not liable by reason of subsection (p), and
the conditions described in paragraph (2) are met, the United States
shall have a lien upon such facility for such unrecovered costs. Such
lien--
``(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 property;
``(B) shall arise at the time costs are first incurred by the
United States with respect to a response action at the
facility;
``(C) shall be subject to the requirements for notice and
validity established in paragraph (3) of subsection (l); and
``(D) shall continue until the earlier of satisfaction of the
lien or recovery of all response costs incurred at the
facility.
``(2) The conditions referred to in paragraph (1) are the following:
``(A) A response action for which there are unrecovered costs
is carried out at the facility.
``(B) Such response action increases the fair market value of
the facility above the fair market value of the facility that
existed within 6 months before the response action was
taken.''.
SEC. 106. INNOCENT GOVERNMENTAL ENTITIES.
Section 107 (42 U.S.C. 9607) is further amended by adding at the end
the following new subsection:
``(r) Innocent Governmental Entities.--There shall be no liability
under subsection (a) for any State or local government if such
liability is based solely on--
``(1) the granting of a license or permit to conduct
business; or
``(2) the State or local government's status as an owner or
operator of the facility or vessel, and the State or local
government--
``(A) acquired the facility or vessel by escheat or
through any other involuntary transfer or through the
exercise of eminent domain, and
``(B) establishes by a preponderance of the evidence
that it--
``(i) acquired the facility or vessel after
the disposal or placement of the hazardous
substances for which liability is alleged;
``(ii) did not, by any act or omission, cause
or contribute to the release or threatened
release of such hazardous substances; and
``(iii) exercised appropriate care with
respect to such hazardous substances taking
into consideration the characteristics of such
hazardous substances, in light of all relevant
facts, circumstances, and generally accepted
good commercial and customary standards and
practices at the time of the defendant's acts
or omissions.''.
SEC. 107. CONTIGUOUS PROPERTIES.
Section 107 (42 U.S.C. 9607) is further amended by adding at the end
the following new subsection:
``(s) Contiguous Properties.--(1) A person (other than the United
States or a department, agency, or instrumentality of the United
States) who 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 such release shall not be liable
under paragraph (1) or (2) of subsection (a) by reason of such
ownership or operation solely by reason of such contamination if such
person--
``(A) did not cause, contribute to, or consent to the release
or threatened release;
``(B) provides full cooperation, assistance, and facility
access to persons authorized to conduct 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
``(C) is not affiliated with any other person liable for
response costs at the facility, through any direct or indirect
familial relationship, or any contractual, corporate, or
financial relationship.
``(2) The President may issue an assurance of no enforcement action
under this Act to any such person and may grant any such person
protection against cost recovery and contribution actions pursuant to
section 113(f)(2). Such person may also petition the President to
exclude from the description of a National Priorities List site such
contiguous real property, if such property is or may be contaminated
solely by ground water that flows under such property and is not used
as a source ofdrinking water. The President may grant such a petition
pursuant to such procedures as he deems appropriate.''.
SEC. 108. REMEDY SELECTION.
Section 121 (42 U.S.C. 9621) is amended as follows:
(1) By inserting the following before the period at the end
of the first sentence in subsection (b)(1): ``to the extent
practicable, considering the nature and timing of reasonably
anticipated uses of land, water, and other resources''.
(2) By adding after the first sentence in subsection (b)(1):
``The preferences for treatment or permanent solutions in this
paragraph shall not apply to a treatment option or permanent
solution that would increase risk to the community or to
workers' health.''.
(3) By striking ``maximum'' in the penultimate sentence of
subsection (b)(1).
(4) By striking ``or is relevant and appropriate'' and ``or
relevant and appropriate'' in subsection (d)(2)(A).
(5) By striking ``Level Goals'' in subsection (d)(2)(A) and
inserting ``Levels''.
(6) By striking ``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 of threatened release'' in
subsection (d)(2)(A) and inserting ``where such levels are
relevant and appropriate under the circumstances of the release
or threatened release, considering the timing of any reasonably
anticipated use of water as drinking water and reasonable
points of compliance''.
(7) In subsection (d)(2)(B) by striking clause (i), striking
``(ii)'', and redesignating subclauses (I) through (III) as
clauses (i) through (iii).
(8) By adding the following new subsection at the end
thereof:
``(g) Risk Assessment and Characterization Principles.--Risk
assessments and characterizations conducted for remedial actions
subject to this section, and for other significant Federal actions
under this Act, shall--
``(1) provide scientifically objective assessments,
estimates, and characterizations which neither minimize nor
exaggerate the nature and magnitude of risks to human health
and the environment;
``(2) be based on the best available scientific and technical
information, including data on bioavailability and site-
specific information; and
``(3) be based on an analysis of the weight of the scientific
evidence that supports conclusions about a problem's potential
risk to human health and the environment.''.
(9) By adding the following new subsections at the end
thereof:
``(h) Sensitive Subpopulations and Site-Specific Risk Assessment.--
The President shall use site-specific risk assessment that meets the
requirements of the principles set forth in subsection (g) to--
``(1) determine the nature and extent of risk to human health
and the environment;
``(2) identify groups which are currently or would be highly
exposed or highly susceptible (A) to contamination from the
site based on current and reasonably anticipated uses of land,
water, and other resources at or around the site, or (B) to
risks arising from implementation of a remedial option;
``(3) assist in establishing remedial objectives for the
facility respecting releases or threatened releases, and in
identifying geographic areas or exposure pathways of concern;
and
``(4) evaluate alternative remedial actions for the facility
to determine their risk reduction benefits and assist in
selecting the remedial action for the facility that meets the
criteria of paragraph (1) of subsection (b).
``(i) Study of Substances and Mixtures.--(1) The President shall
conduct a study of the cancer potency values of 12 hazardous substances
listed under paragraph (2) of section 104(i) that are frequently found
to pose significant risks at National Priorities List facilities. The
study may also include a review of other health effects values. The
President shall not include a substance in the study under this
subsection if such substance is under scientific reevaluation pursuant
to title XIV of the Safe Drinking Water Act.
``(2) The President shall make a scientifically objective assessment
of different methodologies for determining the health effects of
chemical mixtures at relevant doses based on reasonable exposure
scenarios at National Priorities List facilities.
``(3) For purposes of such study and assessments, within 30 days
after the date of the enactment of this subsection, the President shall
obtain public comments on such study and assessments. Not later than 15
months after the date of the enactment of this subsection, the
President shall publish a draft of such assessments. After receiving
such comments on such draft assessments, and after external peer
review, but within 2 years after the date of the enactment of this
subsection, the President shall complete the study and publish the
assessments under this subsection. The publication of the final
assessments shall be considered final agency action.
``(4) The study and assessments under this subsection shall include a
discussion, to the extent relevant, of both laboratory and
epidemiological data of sufficient quality which finds, or fails to
find, a significant correlation between health risks and a potential
toxin. Where conflicts among such data appear to exist, or where animal
data are used as a basis to assess human health risks, the study and
assessments shall include discussion of differences in study designs,
comparative physiology, routes of exposure, bioavailability,
pharmacokinetics, and any other relevant and significant factor.
``(5) Where the study and assessment involve application of any
significant assumption, inference, or model, the President shall--
``(A) state the weight of scientific evidence supporting a
selection relative to other plausible alternatives;
``(B) fully describe any model used in the risk assessment
and make explicit the assumptions incorporated in the model;
and
``(C) indicate the extent to which any significant model has
been validated by, or conflicts with, empirical data.
``(6) To the extent scientifically appropriate, the President shall
include, among other estimates or health effects values, estimates of
risks or health effects values, using the most plausible assumptions,
given the weight of the scientific information available to the
President. Where significant assumptions have substantially similar
scientific support, the President shall provide a description of the
range of estimates or values.
``(j) Presentation of Risk Information.--(1) The President, in
carrying out his responsibilities under this Act, shall ensure that the
presentation of information on risk is unbiased and informative. The
results of any facility-specific risk evaluation shall contain an
explanation that clearly communicates the risks at the facility, and
shall--
``(A) identify and explain all significant assumptions used
in the evaluation, as well as alternative assumptions, the
policy or value judgments used in choosing the assumptions, and
whether empirical data conflict with or validate the
assumptions;
``(B) present, to the extent feasible--
``(i) the scientifically objective distribution of
exposure estimates,
``(ii) estimates, including estimates, of exposure
and risk using the most plausible assumptions given the
weight of current scientific information available to
the President,
``(iii) groups identified through site specific risk
assessment which are currently or would be highly
exposed or highly susceptible (I) to contamination from
the site based on current and reasonably anticipated
uses of land, water, and other resources at or around
the site, or (II) to risks arising from implementation
of a remedial option, and
``(iv) a statement of the nature and magnitude of the
scientific uncertainties associated with such
estimates;
``(C) include the size of the population potentially at risk
from releases from the facility (based on the current or
reasonably anticipated future uses of the land, water, or other
resources), the exposure scenario used for each estimate, and
the likelihood that such potential exposures will occur; and
``(D) compare risks with estimates of greater, lesser, and
substantially equivalent risks that are familiar to and
routinely encountered by the general public as well as other
risks, and, where appropriate and meaningful, comparison of
those risks with other similar risks regulated by Federal
agencies resulting from comparable activities and exposure
pathways.
Comparisons under subparagraph (D) should consider relevant
distinctions among risks, such as the voluntary or involuntary nature
of risks.
``(2) To the maximum extent practicable, documents made available to
the general public which purport to describe the degree of risk to
human health shall, at a minimum, provide information specified in
paragraph (1) or a meaningful reference to such information in another
document reasonably available to the public.''.
SEC. 109. BROWNFIELDS GRANTS.
(a) In General.--Title I (42 U.S.C. 9601 et seq.) is amended by
adding at the end the following:
``SEC. 127. BROWNFIELDS GRANTS.
``(a) Definitions.--In this section, the following definitions apply:
``(1) Administrative cost.--The term `administrative cost'
does not include the cost of--
``(A) site inventories;
``(B) investigation and identification of the extent
of contamination;
``(C) design and performance of a response action; or
``(D) monitoring of natural resources.
``(2) Brownfield facility.--
``(A) In general.--The term `brownfield facility'
means real property with respect to which expansion,
development, or redevelopment is complicated by the
presence or potential presence of a hazardous
substance.
``(B) Excluded facilities.--The term `brownfield
facility' does not include--
``(i) any portion of real property that is
the subject of an ongoing removal or planned
removal under section 104;
``(ii) any portion of real property that is
listed or has been proposed for listing on the
National Priorities List;
``(iii) any portion of real property with
respect to which a cleanup is proceeding under
a permit, an administrative order, or a
judicial consent decree entered into by the
United States or an 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.);
``(iv) a facility that is owned or operated
by a department, agency, or instrumentality of
the United States, except a facility located on
lands held in trust for an Indian tribe; or
``(v) a portion of a facility for which
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.
``(3) Eligible entity.--
``(A) In general.--The term `eligible entity' means--
``(i) a State or a political subdivision of a
State, including--
``(I) a general purpose unit of local
government; and
``(II) a regional council or group of
general purpose units of local
government;
``(ii) a redevelopment agency that is
chartered or otherwise sanctioned by a State or
other unit of government; and
``(iii) an Indian tribe.
``(B) Excluded entities.--The term `eligible entity'
does not include any entity that is not in full
compliance with the requirements of an administrative
order, judicial consent decree, or closure plan under a
permit which has been issued or entered into by the
United States or an 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 the real property
or portion thereof which is the subject of the order,
judicial consent decree, or closure plan.
``(b) Brownfield Assessment Grant Program.--
``(1) Establishment of program.--The President shall
establish a program to provide grants to eligible entities for
inventory and assessment of brownfield facilities.
``(2) Assistance for site assessment.--On approval of an
application made by an eligible entity, the President may make
grants to the eligible entity to be used for developing an
inventory and conducting an assessment of 1 or more brownfield
facilities.
``(3) Applications.--
``(A) In general.--Any eligible entity may submit an
application to the President, in such form as the
President may require, for a grant under this
subsection for 1 or more brownfield facilities.
``(B) Application requirements.--An application for a
grant under this subsection shall include information
relevant to the ranking criteria established under
paragraph (4) for the facility or facilities for which
the grant is requested.
``(4) Ranking criteria.--The President shall establish a
system for ranking grant applications submitted under this
subsection that includes the following criteria:
``(A) The demonstrated need for Federal assistance.
``(B) 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.
``(C) The estimated extent to which a grant would
facilitate the identification of or facilitate a
reduction in health and environmental risks.
``(D) The potential to stimulate economic development
of the area, 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 potential of a grant to create new
or expand existing business and employment
opportunities on completion of any necessary
response action.
``(iii) The estimated additional tax revenues
expected to be generated by economic
redevelopment in the area in which a brownfield
facility is located.
``(E) 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.
``(F) The extent to which the site assessment and
subsequent development involves the active
participation and support of the local community.
``(5) Maximum grant amount per facility.--A grant made to an
eligible entity under this subsection shall not exceed $200,000
with respect to any brownfield facility covered by the grant.
``(c) Brownfield Remediation Grant Program.--
``(1) Establishment of program.--The President shall
establish a program to provide grants to eligible entities to
be used for capitalization of revolving loan funds for remedial
actions at brownfield facilities.
``(2) Assistance for site remediation.--Upon approval of an
application made by an eligible entity, the President may make
grants to the eligible entity to be used for establishing a
revolving loan fund. Any fund established using such grants
shall be used to make loans to a State, a site owner, or a site
developer for the purpose of carrying out remedial actions at 1
or more brownfield facilities.
``(3) Applications.--
``(A) In general.--Any eligible entity may submit an
application to the President, in such form as the
President may require, for a grant under this
subsection.
``(B) Application requirements.--An application under
this section shall include information relevant to the
ranking criteria established under paragraph (4).
``(4) Ranking criteria.--The President shall establish a
system for ranking grant applications submitted under this
subsection that includes the following criteria:
``(A) The adequacy of the financial controls and
resources of the eligible entity to administer a
revolving loan fund in accordance with this title.
``(B) The ability of the eligible entity to monitor
the use of funds provided to loan recipients under this
title.
``(C) The ability of the eligible entity to ensure
that a remedial action funded by the grant will be
conducted under the authority of a State cleanup
program that ensures that the remedial action is
protective of human health and the environment.
``(D) The ability of the eligible entity to ensure
that any cleanup funded under this Act will comply with
all laws that apply to the cleanup.
``(E) The need of the eligible entity for financial
assistance to clean up brownfield sites that are the
subject of the application, taking into consideration
the financial resources available to the eligible
entity.
``(F) The ability of the eligible entity to ensure
that the applicants repay the loans in a timely manner.
``(G) The plans of the eligible entity for using the
grant to stimulate economic development or creation of
recreational areas on completion of the cleanup.
``(H) The plans of the eligible entity for using the
grant to stimulate the availability of other funds for
environmental remediation and subsequent redevelopment
of the area in which the brownfield facilities are
located.
``(I) The plans of the eligible entity for using the
grant to facilitate a reduction of health and
environmental risks.
``(J) The plans of the eligible entity for using the
grant for remediation and subsequent development that
involve the active participation and support of the
local community.
``(5) Maximum grant amount.--A grant made to an eligible
entity under this subsection may not exceed $1,000,000.
``(d) General Provisions.--
``(1) Prohibition.--No part of a grant under this section may
be used for the payment of penalties, fines, or administrative
costs.
``(2) Audits.--The President shall audit an appropriate
number of grants made under subsections (b) and (c) to ensure
that funds are used for the purposes described in this section.
``(3) Agreements.--
``(A) Terms and conditions.--Each grant made under
this section shall be subject to an agreement that--
``(i) requires the eligible entity to comply
with all applicable Federal and State laws;
``(ii) requires the eligible entity to use
the grant exclusively for the purposes
specified in subsection (b)(2) or (c)(2);
``(iii) in the case of an application by a
State under subsection (c)(3), requires payment
by the State of a matching share, of at least
50 percent of the amount of the grant, from
other sources of funding;
``(iv) requires that grants under this
section will not supplant State or local funds
normally provided for the purposes specified in
subsection (b)(2) or (c)(2); and
``(v) contains such other terms and
conditions as the President determines to be
necessary to ensure proper administration of
the grants.
``(B) Limitation.--The President shall not place
terms or conditions on grants made under this section
other than the terms and conditions specified in
subparagraph (A).
``(4) 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, including other Federal sources, but the grant shall
be used only for the purposes described in subsection (b)(2) or
(c)(2).
``(e) Approval.--
``(1) Initial grant.--Before the expiration of the fourth
quarter of the first fiscal year following the date of the
enactment of this section, the President shall make grants
under this section to the eligible entities and States that
submit applications, before the expiration of the second
quarter of such year, that the President determines have the
highest rankings under the ranking criteria established under
subsection (b)(4) or (c)(4).
``(2) Subsequent grants.--Beginning with the second fiscal
year following the date of enactment of this section, the
President shall make an annual evaluation of each application
received during the prior fiscal year and make grants under
this section to the eligible entities and States that submit
applications during the prior year that the President
determines have the highest rankings under the ranking criteria
established under subsection (b)(4) or (c)(4).
``(f) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section such sums as may be necessary.
Such funds shall remain available until expended.''.
TITLE II--EXPENDITURES FROM THE HAZARDOUS SUBSTANCE SUPERFUND
SEC. 201. EXPENDITURES FROM THE HAZARDOUS SUBSTANCE SUPERFUND.
(a) Expenditures.--Section 111 (42 U.S.C. 9611) is amended by
striking subsections (a), (b), (c), (d), and (e) and inserting the
following:
``(a) Expenditures From Hazardous Substance Superfund.--
``(1) Subsection (b) expenditures.--The following amounts of
amounts appropriated to the Hazardous Substance Superfund after
January 1, 2000, pursuant to section 9507(b) of the Internal
Revenue Code of 1986, and of amounts credited under section
9602(b) of such Code with respect to those appropriated
amounts, shall be available for the purposes specified in
subsection (b):
``(A) $250,000,000 for fiscal year 2000.
``(B) $250,000,000 for fiscal year 2001.
``(C) $250,000,000 for fiscal year 2002.
``(D) $250,000,000 for fiscal year 2003.
``(E) $250,000,000 for fiscal year 2004.
Such funds shall remain available until expended.
``(2) Subsections (c) and (d) expenditures.--There is
authorized to be appropriated from the Hazardous Substance
Superfund established pursuant to section 9507(b) of the
Internal Revenue Code of 1986 for the purposes specified in
subsections (c) and (d) of this section not more than the
following amounts:
``(A) $1,500,000,000 for fiscal year 2000.
``(B) $1,500,000,000 for fiscal year 2001.
``(C) $1,500,000,000 for fiscal year 2002.
``(D) $1,400,000,000 for fiscal year 2003.
``(E) $1,350,000,000 for fiscal year 2004.
``(b) Payments Related to Certain Reductions, Limitations, and
Exemptions.--
``(1) Funding of exempt party and fund share.--The President
may use amounts in the Fund made available by subsection (a)(1)
for funding the equitable share of liability attributable to
exempt parties under section 107(y) and obligations incurred by
the President to pay a Fund share or to reimburse parties for
costs incurred in excess of the parties' allocated shares under
section 129.
``(2) Limitations.--
``(A) Funding.--Amounts made available by subsection
(a)(1) for the purposes of this subsection shall not
exceed the following:
``(i) $250,000,000 for fiscal year 2000.
``(ii) $250,000,000 for fiscal year 2001.
``(iii) $250,000,000 for fiscal year 2002.
``(iv) $250,000,000 for fiscal year 2003.
``(v) $250,000,000 for fiscal year 2004.
``(B) Eligible costs.--No funds made available under
paragraph (1) may be used for payment of, or
reimbursement for, any portion of attorneys' fees that
do not constitute necessary costs of response
consistent the national contingency plan.
``(C) Additional purposes.--
``(i) In general.--If, in any of fiscal years
2000 through 2004, the Administrator does not
have available for obligation for the purposes
of subsections (c) and (d) the amount specified
for the fiscal year in clause (iii), the
Administrator, subject to clause (ii), may use
funds provided under subsection (a)(1) for such
purposes.
``(ii) Limitation.--The total amount of funds
provided under subsection (a)(1) that the
Administrator may use for the purposes of
subsections (c) and (d) may not exceed the
amount specified for the fiscal year in clause
(iii) less the amount which (but for this
subparagraph) would be available to the
Administrator in such fiscal year for such
purposes.
``(iii) Amounts.--The amounts specified in
this clause are $1,500,000,000 for each of
fiscal years 2000 through 2002, $1,400,000,000
for fiscal year 2003, and $1,350,000,000 for
fiscal year 2004.
``(c) Response, Removal, and Remediation.--The President may use
amounts in the Fund appropriated under subsection (a)(2) for costs of
response, removal, and remediation (and administrative costs directly
related to such costs), including the following:
``(1) Government response costs.--Payment of governmental
response costs incurred pursuant to section 104, including
costs incurred pursuant to the Intervention on the High Seas
Act (33 U.S.C. 1471 et seq.).
``(2) Private response cost claims.--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 105, if such costs are approved under
such plan, are reasonable in amount based on open and free
competition or fair market value for similar available goods
and services, and are certified by the responsible Federal
official.
``(3) 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).
``(4) State and local government reimbursement.--
Reimbursement to States and local governments under section
123; except that during any fiscal year not more than 0.1
percent of the total amount appropriated under subsection
(a)(2) may be used for such reimbursements.
``(5) Contracts and cooperative agreements.--Payment for the
implementation of any contract or cooperative agreement under
section 104(d).
``(d) Administration, Oversight, Research, and Other Costs.--The
President may use amounts in the Fund appropriated under subsection
(a)(2) for the following costs (and administrative costs directly
related to such costs):
``(1) Investigation and enforcement.--The costs of
identifying, investigating, and taking enforcement action
against releases of hazardous substances.
``(2) Overhead.--
``(A) In general.--The costs of providing services,
equipment, and other overhead related to the purposes
of this Act and section 311 of the Federal Water
Pollution Control Act and needed to supplement
equipment and services available through contractors
and other non-Federal entities.
``(B) Damage assessment capability.--The costs 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.
``(3) Employee safety programs.--The cost of maintaining
programs otherwise authorized by this Act to protect the health
and safety of employees involved in response to hazardous
substance releases.
``(4) Grants for technical assistance.--The cost of grants
under section 117(e) (relating to public participation grants
for technical assistance).
``(5) ATSDR activities.--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, public health assessments, and other
activities authorized by section 104(i).
``(6) 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).
``(7) 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.
``(8) Research, development, and demonstration costs under
section 311.--The cost of carrying out section 311 (relating to
research, development, and demonstration).
``(9) Awards under section 109.--The costs of any awards
granted under section 109(d) (relating to providing information
concerning violations).
``(10) Comprehensive state ground water protection plans.--
Costs of providing assistance to States to develop
comprehensive State ground water protection plans to the extent
such costs do not exceed $3,000,000 in the aggregate in a
fiscal year.
``(e) Other Limitations.--
``(1) Limitations on payments of claims.--Claims against or
presented to the Fund shall not be valid or paid in excess of
the total unobligated balance in the Fund at any one time. Such
claims become valid and are payable 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) Remedial actions at federally owned facilities.--No
money in the Fund shall be available for costs of remedial
action, other than costs specified in subsection (d), 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 ground water contamination
outside the boundaries of a federally owned facility in which
the federally owned facility is not the only potentially
responsible party.
``(3) Remedial actions at facilities not listed on npl.--No
money in the Fund shall be available for response actions that
are not removal actions under section 101(23) with respect to
any facility that is not listed on the National Priorities
List.''.
(b) Additional Amendments.--
(1) Section 111.--Section 111 (42 U.S.C. 9611) is further
amended by striking subsections (j) and (n).
(2) Section 107.--Section 107 (42 U.S.C. 9607) is further
amended by striking subsection (k).
(c) Conforming Amendments.--Section 112 (42 U.S.C. 9612) is amended--
(1) in subsection (a) by striking ``111(a)'' and inserting
``111(c)''; and
(2) by striking subsection (f).
SEC. 202. AUTHORIZATION OF APPROPRIATIONS FROM GENERAL REVENUES.
(a) Authorization.--Section 111(p)(1) (42 U.S.C. 9611(p)(1)) is
amended to read as follows:
``(1) In general.--There is authorized to be appropriated,
out of any money in the Treasury not otherwise appropriated, to
the Hazardous Substance Superfund such sums as may be necessary
for each of fiscal years 2000 through 2004.''.
(b) Repeal of Duplicative Authorization.--Subsection (b) of section
517 of the Superfund Amendments and Reauthorization Act of 1986 (26
U.S.C. 9507 note) is repealed.
(c) Conforming Amendment.--Section 9507(a)(2) of the Internal Revenue
Code of 1986 is amended by striking ``section 517(b) of the Superfund
Revenue Act of 1986'' and inserting ``section 111(p) of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. 9611(p))''.
SEC. 203. COMPLETION OF NATIONAL PRIORITIES LIST.
(a) Study of 10-Year Funding Needs for Implementing CERCLA.--There is
authorized to be appropriated $1,000,000 for an independent analysis of
the projected 10-year costs to the Environmental Protection Agency of
implementing the programs authorized by the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980. Such analysis shall
include estimates of annual and cumulative costs over the next 10 years
associated with administering such Act by the Environmental Protection
Agency, shall identify sources of uncertainty in the estimates, and
shall be completed by January 1, 2001.
(b) Breakdown of Costs.--The study referred to in subsection (a)
shall include estimates of each of the following:
(1) Costs for completion of all non-Federal facilities
currently on the National Priorities List.
(2) Costs for completion of all Federal facilities currently
on the National Priorities List.
(3) Costs associated with those non-Federal sites which the
Administrator of the Environmental Protection Agency expects to
be added to the National Priorities List over the next 10
years.
(4) Costs associated with those Federal facilities which the
Administrator expects to be added to the National Priorities
List over the next 10 years.
(5) Costs for operations and maintenance at facilities
currently on, or anticipated to be added over the next 10 years
to, the National Priorities List.
(6) Costs associated with reviews of remedies under section
121(c) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, and any follow-up
activities.
(7) Costs for removal activities.
(c) Organizations To Conduct Study.--The cost analysis under
subsection (a) shall be conducted by a neutral, nongovernmental
organization with expertise in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980. In conducting the
analysis, the nongovernmental organization shall collect relevant
information from experts and other interested persons, including
experts in public budgeting and accounting.
TITLE III--LIABILITY REFORM
SEC. 301. LIABILITY RELIEF FOR INNOCENT PARTIES.
(a) Amendments.--Section 107(b) (42 U.S.C. 9607(b)) is amended as
follows:
(1) By redesignating paragraphs (1) through (4) as
subparagraphs (A) through (D), respectively, and by moving
those subparagraphs 2 ems to the right.
(2) By striking ``(b) There shall be'' and inserting the
following:
``(b) Defenses to Liability.--
``(1) In general.--There shall be''.
(3) By adding at the end the following:
``(2) Liability relief for innocent parties.--
``(A) Recipients of property by inheritance or
bequest.--There shall be no liability under subsection
(a) for a person whose liability is based solely on the
person's status as an owner or operator of a facility
or vessel and who can establish by a preponderance of
the evidence that the person meets the requirements of
paragraph (4) and that the person acquired the property
by inheritance or bequest.
``(B) Recipients of property by charitable
donation.--Liability under subsection (a) shall be
limited to the lesser of the fair market value of the
facility or vessel and the actual proceeds of the sale
of the facility for a person whose liability is based
solely on the person's status as an owner or operator
of the facility or vessel and who can establish by a
preponderance of the evidence that the person meets the
requirements of paragraph (4) and that the person
holding title, either outright or in trust, to the
vessel or facility is an organization described in
section 501(c)(3) of the Internal Revenue Code of 1986
and exempt from tax under section 501(a) of such Code
and holds such title as a result of a charitable
donation that qualifies under section 170, 2055, or
2522 of such Code.
``(C) Owners or operators of rights-of-way.--There
shall be no liability under subsection (a) for a person
whose liability is based solely on ownership or
operation of a road, street, pipeline, or other right-
of-way, easement, or public transportation route (other
than railroad rights-of-way and railroad property) over
which hazardous substances are transported or otherwise
are present if such person can establish by a
preponderance of the evidence that the person did not,
by any act or omission, cause or contribute to the
release or threatened release.
``(D) Railroad owners or operators of spur track.--
There shall be no liability under subsection (a) for a
person whose liability is based solely on the status of
the person as a railroad owner or railroad 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 the railroad owner or operator can
establish by a preponderance of the evidence that--
``(i) the spur track provides access to a
main line or branch line track that is owned or
operated by the railroad owner or operator;
``(ii) the spur track is 10 miles long or
less; and
``(iii) the railroad owner or operator did
not cause or contribute to a release or
threatened release of the hazardous substances
for which liability is alleged under subsection
(a).
``(E) Construction contractors.--There shall be no
liability under subsection (a) for a person who is a
construction contractor (other than a response action
contractor covered by section 119) if such person can
establish by a preponderance of the evidence that--
``(i) the person's liability is based solely
on construction activities that were
specifically directed by and carried out in
accordance with a contract with an owner or
operator of the facility;
``(ii) the person did not know or have reason
to know of the presence of hazardous substances
at the facility concerned before beginning
construction activities; and
``(iii) the person exercised appropriate care
with respect to the hazardous substances
discovered in the course of performing the
construction activity, including precautions
against foreseeable acts of third parties,
taking into consideration the characteristics
of such hazardous substances, in light of all
relevant facts, circumstances, and generally
accepted good commercial and customary
standards and practices at the time of the
person's acts or omissions.
``(3) Appropriate care.--
``(A) Site-specific basis.--The determination whether
or not a person has exercised appropriate care with
respect to hazardous substances within the meaning of
paragraph (4)(C) shall be made on a site-specific basis
taking into consideration the characteristics of the
hazardous substances, in light of all relevant facts,
circumstances, and generally accepted good commercial
and customary standards and practices at the time of
the defendant's acts or omissions.
``(B) Safe harbor.--A person shall be deemed to have
exercised appropriate care within the meaning of
paragraph (4)(C) if--
``(i) the person took 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, or
``(ii) in any case in which the release or
threatened release of hazardous substances is
the subject of a response action by persons
authorized to conduct the response action at
the facility or vessel, the person provides
access for and all reasonable cooperation with
the response action.
``(4) Requirements.--The requirements referred to in
paragraph (2)(A) and (B) are that a person's liability is based
solely on the person's status as an owner or operator of a
facility or vessel and that the person can establish by a
preponderance of the evidence that--
``(A) the person acquired the facility or vessel
after the disposal or placement of the hazardous
substances for which liability is alleged under
subsection (a);
``(B) the person did not, by any act or omission,
cause or contribute to the release or threatened
release of such hazardous substances; and
``(C) the person exercised appropriate care with
respect to such hazardous substances.
``(5) Treatment of non-liable parties.--The Administrator
shall seek to minimize the administrative and legal burdens on
parties that are not liable pursuant to this section. To the
extent practicable, the Administrator shall--
``(A) inform such parties that they are exempted from
liability pursuant to this section, and offer them
written assurances establishing their exempt status;
and
``(B) eliminate or minimize any need for such parties
to retain legal counsel in connection with
administrative or legal proceedings concerning the
facility at issue.''.
(b) Conforming Amendments.--(1) Section 101(35) (42 U.S.C. 9601(35))
is amended by striking ``section 107(b)(3)'' each place it appears and
inserting ``section 107(b)(1)(C)''.
(2) Section 119(b)(1) (42 U.S.C. 9619(b)(1)) is amended by striking
``section 107(b)(3)'' and inserting ``section 107(b)(1)(C)''.
SEC. 302. CLARIFICATIONS OF CERTAIN LIABILITY.
(a) Amount of Liability.--Section 107(c)(3) (42 U.S.C. 9607(c)(3)) is
amended in the first sentence by striking ``at least equal to,'' and
all that follows through the end of the sentence and inserting ``up to
three times the amount of such response costs.''.
(b) Clarification of Common Carrier Liability.--Section 107(b)(1)(C),
as so redesignated by section 301(a) of this Act, is amended by
striking ``from a published tariff and acceptance for'' and inserting
``exclusively from a contract for''.
(c) Other Clarifications.--Section 107(a) (42 U.S.C. 9607(a)) is
amended as follows:
(1) In paragraph (1), by striking ``and'' and inserting
``or''.
(2) In paragraph (4)(B)--
(A) by striking ``other'' both places it appears; and
(B) by inserting ``, other than the United States, a
State, or an Indian tribe,'' before the phrase
``consistent with the national contingency plan''.
(3) In paragraph (4), by striking ``by such person,'' and all
that follows through ``shall be liable for--'' and inserting in
lieu thereof the following: ``by such person--
from which there is a release, or a threatened release, that causes the
incurrence of response costs, of a hazardous substance, shall be liable
for--''.
(4) By designating the text beginning with ``The amounts
recoverable'' and ending with ``this subsection commences.'' as
paragraph (5) and aligning the margin of such text with
paragraph (4).
SEC. 303. FEDERAL ENTITIES AND FACILITIES.
Section 120 (42 U.S.C. 9620) is amended as follows:
(1) By amending the heading to read as follows:
``SEC. 120. FEDERAL ENTITIES AND FACILITIES.''.
(2) By amending paragraph (1) of subsection (a) to read as
follows:
``(1) In general.--(A) Each department, agency, and
instrumentality of the executive, legislative, and judicial
branches of the United States shall be subjectto, and comply
with, this Act and all other Federal, State, interstate, and local
requirements, both substantive and procedural (including any
requirement for permits or reporting or any provision for injunctive
relief and such sanctions as may be imposed by a court to enforce such
relief), regarding response or restoration actions related to the
release or potential release of hazardous substances, pollutants, or
contaminants in the same manner, and to the same extent, as any
nongovernmental entity is subject to such requirements, including
enforcement and liability under sections 106 and 107 of this title and
the payment of reasonable service charges.
``(B) The Federal, State, interstate, and local substantive
and procedural requirements referred to in subparagraph (A)
include, but are not limited to, all administrative orders and
all civil and administrative penalties and fines, regardless of
whether such penalties and fines are punitive or coercive in
nature or are imposed for isolated, intermittent, or continuing
violations. The United States hereby expressly waives any
immunity otherwise applicable to the United States with respect
to any such substantive or procedural requirement (including,
but not limited to, any injunctive relief, administrative
order, or civil or administrative penalty or fine referred to
in the preceding sentence or any reasonable service charge).
``(C) The reasonable service charges referred to in this
paragraph include, but are not limited to, fees or charges
assessed in connection with the processing and issuance of
permits, renewal of permits, amendments to permits, review of
plans, studies, and other documents, and inspection and
monitoring of facilities, as well as any other
nondiscriminatory charges that are assessed in connection with
a State, interstate, or local response program.
``(D) Neither the United States, nor any agent, employee, or
officer thereof, shall be immune or exempt from any process or
sanction of any State or Federal court with respect to the
enforcement of any injunctive relief.
``(E) No agent, employee, or officer of the United States
shall be personally liable for any civil penalty under any
Federal or State law regarding response or restoration actions
relating to the release or potential release of hazardous
substances, pollutants, or contaminants, with respect to any
act or omission within the scope of their official duties. An
agent, employee, or officer of the United States shall be
subject to any criminal sanction (including, but not limited
to, any fine or imprisonment) under any such Federal or State
law, but no department, agency, or instrumentality of the
executive, legislative, or judicial branch of the United States
shall be subject to any such sanction.
``(F) The waiver of sovereign immunity provided in this
paragraph shall not apply to the extent a State law would apply
any standard or requirement to such Federal department, agency,
or instrumentality in a manner that is more stringent than such
standard or requirement would be applied to any other person.
``(G)(i) The Administrator may issue an order under section
106 of this Act 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) No administrative order issued to such department,
agency, or instrumentality shall become final until such
department, agency, or instrumentality has had the opportunity
to confer with the Administrator.
``(iii) Unless a State law in effect on the date of enactment
of the Land Recycling Act of 1999, or a State constitution,
requires the funds to be used in a different manner, all funds
collected by a State from the Federal Government from penalties
and fines imposed for violation of any substantive or
procedural requirement referred to in subsection (a) of this
section 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.
``(H) Each such department, agency, and instrumentality shall
have the right to contribution protection set forth in section
113, when such department, agency, or instrumentality resolves
its liability under this Act.''.
(3) By striking paragraph (4) of subsection (a).
(4) By inserting ``(other than the indemnification
requirements of section 119)'' after ``responsibility'' in
subsection (a)(3).
SEC. 304. LIABILITY RELIEF FOR SMALL BUSINESSES, MUNICIPAL SOLID WASTE,
SEWAGE SLUDGE, MUNICIPAL OWNERS AND OPERATORS, AND
DE MICROMIS CONTRIBUTORS.
(a) Limitation on Liability for Small Businesses.--Section 107 (42
U.S.C. 9607) is further amended by adding at the end the following:
``(t) Limitation on Liability for Small Businesses.--
``(1) In general.--With respect to actions taken before
September 29, 1999, no small business concern shall be liable
under subsection (a)(3) or (a)(4) for response costs or damages
at a facility or vessel on the National Priorities List.
``(2) Limitation.--Paragraph (1) shall not apply to an action
brought by the President against a small business concern if
the hazardous substances attributable to the small business
concern have contributed, or contribute, significantly to the
costs of the response action at the facility.
``(3) Small business concern defined.--In this subsection,
the term `small business concern' means a business entity that
on average over the previous 3 years preceding the date of
notification by the President that the business entity is a
potentially responsible party--
``(A) has no more than 75 full-time employees or the
equivalent thereof; and
``(B) has $3,000,000 or less in gross revenues.''.
(b) Liability Relief for Municipal Solid Waste and Sewage Sludge.--
Section 107 (42 U.S.C. 9607) is further amended by adding at the end
the following:
``(u) Liability Exemptions and Limitations for Municipal Solid Waste
and Sewage Sludge.--
``(1) Pre-enactment activities.--
``(A) In general.--Except as provided in subparagraph
(B), no person shall be liable under subsection (a)(3)
or (a)(4) for response costs or damages at a landfill
facility on the National Priorities List to the extent
that the person arranged or transported municipal solid
waste or municipal sewage sludge prior to the date of
enactment of this paragraph for disposal at the
landfill facility.
``(B) Exception.--Notwithstanding subparagraph (A),
if the President determines that a person transported
material containing municipal solid waste or municipal
sewage sludge to a landfill facility that has
contributed, or contributes, significantly to the costs
of response at the facility and such person is engaged
in the business of transporting waste materials, such
person may be liable under subsection (a)(4). The
liability of such person shall be subject to the
aggregate limits on liability for municipal solid waste
set forth in paragraph (2). Any determination of such
person's equitable share of response costs shall be
determined on the basis of such person's equitable
share of the aggregate amount of response costs
attributable to municipal solid waste under paragraph
(2).
``(2) Post-enactment activities.--
``(A) In general.--To the extent that a person or
group of persons is liable under subsection (a)(3) or
(a)(4) for arranging or transporting municipal solid
waste or municipal sewage sludge for disposal at a
landfill facility on the National Priorities List on or
after the date of enactment of this paragraph, and is
not exempt from liability under paragraph (3), the
total aggregate liability for all such persons or
groups of persons for response costs at such a landfill
facility shall not exceed 10 percent of such costs.
``(B) Expedited settlements.--The President may offer
a person subject to a limitation on liability under
subparagraph (A) an expedited settlement based on the
average unit cost of remediating municipal solid waste
and municipal sewage sludge in landfills in lieu of the
aggregate 10 percent limitation on liability provided
by subparagraph (A).
``(3) Special rule.--No person shall be liable under
subsection (a)(3) or (a)(4) for response costs or damages at a
landfill facility on the National Priorities List to the extent
that--
``(A) the materials that the person arranged or
transported for disposal consist of municipal solid
waste; 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
with respect to the facility;
``(ii) a business entity that employs no more
than 100 paid individuals and is a small
business concern as defined under the Small
Business Act (15 U.S.C. 631 et seq.) from which
was generated all of the entity's municipal
solid waste with respect to the facility; or
``(iii) an organization described in section
501(c)(3) of the Internal Revenue Code of 1986
and exempt from tax under section 501(a) of
such Code if such organization employs no more
than 100 paid individuals at the location from
which was generated all of the municipal solid
waste attributable to the organization with
respect to the facility.
``(4) Mixed wastes.--Liability for wastes that do not fall
within the definition of municipal solid waste under paragraph
(5)(A) and are collected and disposed of with municipal solid
wastes shall be governed by section 107(a) and any applicable
exemptions or limitations on liability without regard to the
wastes covered by paragraph (5)(A).
``(5) Definitions.--In this section, the following
definitions apply:
``(A) Municipal solid waste.--The term `municipal
solid waste' means waste materials generated by
households, including single and multifamily
residences, and hotels and motels, and waste materials
generated by commercial, institutional, and industrial
sources, to the extent that such materials--
``(i) are essentially the same as waste
materials normally generated by households, or
``(ii) are collected and disposed of with
other municipal solid waste, and contain
hazardous substances that would qualify for the
de micromis exemption under section 107(w).
The term includes food and yard waste, paper, clothing,
appliances, consumer product packaging, disposable
diapers, office supplies, cosmetics, glass and metal
food containers, wooden pallets, cardboard, elementary
or secondary school science laboratory waste, and
household hazardous waste. The term does not include
combustion ash generated by resource recovery
facilities or municipal incinerators; solid waste from
the extraction, beneficiation, and processing of ores
and minerals; or waste from manufacturing or processing
operations (including pollution control) that is not
essentially the same as waste normally generated by
households.
``(B) Municipal sewage sludge.--The term `municipal
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
(i) a publicly owned treatment works, (ii) a federally
owned treatment works, or (iii) a treatment works that,
without regard to ownership, would be considered to be
a publicly owned treatment works and is principally
treating municipal waste water or domestic sewage.
``(v) Municipal Owners and Operators.--
``(1) In general.--A municipality that is liable for response
costs under paragraph (1) or (2) of subsection (a) on the basis
of ownership or operation of a municipal landfill that is
listed on the National Priorities List on or before September
1, 1999 (as identified by the President), shall be eligible for
a settlement under this subsection.
``(2) Settlement amount.--(A) The President shall offer a
settlement to a party with respect to such liability on the
basis of a payment or other obligation equivalent in value to
no more than 20 percent of the total response costs in
connection with the facility. The President may increase this
percentage to no more than 35 percent of the total response
costs in connection with the facility if the President
determines--
``(i) the municipality exacerbated environmental
contamination or exposure with respect to the facility;
or
``(ii) the municipality, during the period of
ownership or operation of the facility, received
operating revenues substantially in excess of the sum
of the waste system operating costs plus 20 percent of
total estimated response costs in connection with the
facility.
``(B) Such a settlement shall pertain to only the party's
liability under paragraph (1) or (2) of subsection (a).
``(3) Performance of response actions.--Subject to the
limitations of paragraph (2), the President may require, as a
condition of a settlement with a municipality under this
subsection, that the municipality perform, or participate in
the performance of, the response actions at the site.
``(4) Joint ownership or operation.--A combination of 2 or
more municipalities that jointly owned or operated the facility
at the same time or during continuous operations under
municipal control, shall be considered a single owner/operator
for the purpose of calculating a settlement offer pursuant to
this subsection.
``(5) Waiver of claims.--The President may require, as a
condition of a settlement under this subsection, that the
municipality waive some or all of the claims or causes of
action that such municipality may have against other
potentially responsible parties relating to the site, including
claims for contribution under section 113.
``(6) Exceptions.--The President may decline to offer a
settlement under this subsection where the President
determines--
``(A) there is only municipal solid waste or sewage
sludge at the facility;
``(B) all other identified potentially responsible
parties are insolvent, defunct, or eligible for a
settlement under this subsection or under section
122(g);
``(C) the municipality has failed to comply fully and
completely with information requests, administrative
subpoenas, or discovery requests issued by the United
States; or
``(D) the municipality has impeded or is impeding,
through action or inaction, the performance of a
response action or a natural resource restoration with
respect to the facility.
``(7) Expiration of offer.--The President's obligation to
offer a settlement under this section shall expire if the
municipality to which the offer is made fails to accept such an
offer within a reasonable time period.''.
(c) De Micromis Exemption.--Section 107 (42 U.S.C. 9607) is further
amended by adding at the end the following:
``(w) De Micromis Exemption.--
``(1) In general.--In the case of a facility or vessel listed
on the National Priorities List, no person shall be liable
under subsection (a)(3) or (a)(4) if no more than 110 gallons
or 200 pounds of materials containing hazardous substances at
the facility or vessel is attributable to such person, and the
acts on which liability is based took place before the date of
enactment of this subsection.
``(2) Exception.--Paragraph (1) shall not apply in a case in
which the President determines that the material described in
paragraph (1) has contributed, or contributes, significantly to
the costs of response at the facility.''.
(d) Ineligibility for Exemptions or Limitations.--Section 107 (42
U.S.C. 9607) is further amended by adding at the end the following:
``(x) Ineligibility for Exemptions or Limitations.--
``(1) Impeding response or restoration.--The exemptions and
limitations set forth in subsections (t), (u), (v), and (w) and
sections 114(c) and 128 shall not apply to any person with
respect to a facility if such person impedes the performance of
a response action or natural resource restoration at the
facility.
``(2) Failure to respond to information request.--The
exemptions and limitations set forth in subsections (t), (u),
(v), and (w) and sections 114(c) and 128 shall not apply to any
person who--
``(A) willfully fails to submit a complete and timely
response to an information request under section
104(e); or
``(B) knowingly makes any false or misleading
material statement or representation in any such
response.
``(3) Failure to provide cooperation and facility access.--
The limitation set forth in subsection (v) shall not apply to
any owner or operator of a facility who does not provide all
reasonable cooperation and facility access to persons
authorized to conduct response actions at the facility.''.
(e) Exempt Party Funding; Concluded Actions; Oversight Costs.--
Section 107 (42 U.S.C. 9607) is further amended by adding at the end
the following:
``(y) Exempt Party Funding.--
``(1) Exempt party funding.--Except as provided in paragraph
(2), the equitable share of liability under section 107(a) for
any release or threatened release of a hazardous substance from
a facility or vessel on the National Priorities List that is
extinguished through an exemption or limitation on liability
under subsection (t), (u), or (v) of this section, section
114(c), or section 128 shall be transferred to and assumed by
the Trust Fund.
``(2) Certain msw generators.--Paragraph (1) shall not apply
to the equitable share of liability of any person who would
have been liable under subsection (a)(3) or (4) but for the
exemption from liability under subsection (u)(3).
``(3) Source of funds.--Payments made by the Trust Fund or
work performed on behalf of the Trust Fund to meet the
obligations under paragraph (1) shall be funded from amounts
made available by section 111(a)(1).
``(z) Effect on Concluded Actions.--The exemptions from, and
limitations on, liability provided under subsections (t), (u), (v), and
(w) and sections 114(c) and 128 shall not affect any settlement or
judgment approved by a United States District Court not later than 30
days after the date of enactment of this subsection or any
administrative action against a person otherwise covered by such
exemption orlimitation that becomes effective not later than 30 days
after such date of enactment.
``(aa) Limitation on Recovery of Oversight Costs.--
``(1) In general.--Costs of oversight of a response action
shall not be recoverable under this section from a person
referred to in paragraph (2) to the extent that such costs
exceed 10 percent of the costs of the response action.
``(2) Accounting of response costs.--Paragraph (1) shall
apply only to a person who provides the Administrator with an
accounting of the direct and indirect costs that the person
incurred in conducting the response action. The Administrator
may require an independent audit of the costs from such
person.''.
(f) Conforming Amendment.--Section 113(f)(1) is amended by inserting
``or section 107(y)'' after ``107(a)'' in the first place it appears.
SEC. 305. LIABILITY OF RESPONSE ACTION CONTRACTORS.
(a) Extension of Negligence Standard.--Subsection (a) of section 119
(42 U.S.C. 9619(a)) is amended as follows:
(1) In paragraph (1) by striking ``title or under any other
Federal law'' and inserting ``title, under any other Federal
law, or under the law of any State or political subdivision of
a State''.
(2) By adding at the end of paragraph (1) the following:
``Notwithstanding the preceding sentence, this section shall
not apply in determining the liability of a response action
contractor under the law of any State or political subdivision
thereof if the State has enacted a law determining the
liability of a response action contractor.''.
(3) By adding at the end of paragraph (2) the following:
``Such conduct shall be evaluated based on the generally
accepted standards and practices in effect at the time and
place that the conduct occurred.''.
(b) Extension of Indemnification Authority.--Section 119(c) (42
U.S.C. 9619(c)) is amended by adding at the end of paragraph (1) the
following: ``Any such agreement may apply to claims for negligence
arising under Federal law or under the law of any State or political
subdivision of a State.''.
(c) Indemnification for Threatened Releases.--Section 119(c)(5) (42
U.S.C. 9619(c)(5)) is amended in subparagraph (A) by inserting ``or
threatened release'' after ``release'' each place it appears.
SEC. 306. AMENDMENTS TO SECTION 122.
(a) Final Covenants.--Section 122(f) (42 U.S.C. 9622(f)) is amended
as follows:
(1) By striking paragraph (1) and inserting the following:
``(1) Final covenants.--The President shall offer potentially
responsible parties who enter into settlement agreements that
are in the public interest a final covenant not to sue
concerning any liability to the United States under this Act,
including a covenant with respect to future liability, for
response actions or response costs addressed in the settlement,
if all of the following conditions are met:
``(A) The settling party agrees to perform, or there
are other adequate assurances of the performance of, a
final remedial action authorized by the Administrator
for the release or threat of release that is the
subject of the settlement.
``(B) The settlement agreement has been reached prior
to the commencement of litigation against the settling
party under section 106 or 107 of this Act with respect
to this facility.
``(C) The settling party waives all contribution
rights against other potentially responsible parties at
the facility.
``(D) The settling party (other than a small
business) pays a premium that compensates for the risks
of remedy failure; future liability resulting from
unknown conditions; and unanticipated increases in the
cost of any uncompleted response action, unless the
settling party is performing the response action. The
President shall have sole discretion to determine the
appropriate amount of any such premium, and such
determinations are committed to the President's
discretion. The President has discretion to waive or
reduce the premium payment for persons who demonstrate
an inability to pay such a premium.
``(E) The remedial action does not rely on
institutional controls to ensure continued protection
of human health and the environment.
``(F) The settlement is otherwise acceptable to the
United States.''.
(2) In paragraph (2) by striking ``remedial'' each place it
appears and inserting ``response''.
(3) By amending paragraph (3) to read as follows:
``(3) Discretionary covenants.--For settlements under this
Act for which covenants under paragraph (1) are not available,
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, if the covenant not to sue is in the
public interest. Such covenants shall be subject to the
requirements of paragraph (5). The President may include any
conditions in such covenant not to sue, including the
additional condition referred to in paragraph (5). In
determining whether such conditions or covenants are in the
public interest, the President shall consider the nature and
scope of the commitment by the settling party under the
settlement, the effectiveness and reliability of the response
action, the nature of the risks remaining at the facility, the
strength of evidence, the likelihood of cost recovery, the
reliability of any response action or actions to restore,
replace, or acquire the equivalent of injured natural
resources, the extent to which performance standards are
included in the order or decree, the extent to which the
technology used in the response action is demonstrated to be
effective, and any other factors relevant to the protection of
human health and the environment.''.
(4) By striking paragraph (4) and redesignating paragraphs
(5) and (6) as paragraphs (4) and (5), respectively.
(5) In subparagraph (A) of paragraph (5) (as so
redesignated)--
(A) by striking ``remedial'' the first place it
appears and inserting ``response'';
(B) by striking ``paragraph (2)'' and inserting
``paragraph (1) or (2)'';
(C) by striking ``de minimis settlements'' and
inserting ``de minimis and other expedited settlements
pursuant to subsection (g) of this section''; and
(D) by striking ``the President certifies under
paragraph (3) that remedial action has been completed
at the facility concerned'', and inserting ``that the
response action that is the subject of the settlement
agreement is selected''.
(6) In subparagraph (B) of paragraph (5) (as so
redesignated)--
(A) by striking ``In extraordinary circumstances,
the'' and inserting ``The'';
(B) by striking ``those referred to in paragraph (4)
and'';
(C) by striking ``if other terms,'' and inserting ``,
if the agreement containing the covenant not to sue
provides for payment of a premium to address possible
remedy failure or any releases that may result from
unknown conditions, and if other terms,''; and
(D) by adding at the end the following: ``The
President may waive or reduce the premium payment for
persons who demonstrate an inability to pay such a
premium.''.
(b) Expedited Final Settlements.--Section 122 (42 U.S.C. 6922) is
further amended as follows:
(1) In subsection (g) by striking ``(g)'' and all that
follows through the period at the end of paragraph (1) and
inserting the following:
``(g) Expedited Final Settlement.--
``(1) Parties eligible for expedited settlement.--The
President shall, as promptly as possible, offer to reach a
final administrative or judicial settlement with potentially
responsible parties who, in the judgment of the President, meet
the following conditions for eligibility for an expedited
settlement in subparagraph (A) or (B):
``(A) The potentially responsible party's individual
contribution to the release of hazardous substances at
the facility as an owner or operator, arranger for
disposal, or transporter for disposal is de minimis.
The contribution of hazardous substance to a facility
by a potentially responsible party is de minimis if
both of the following conditions are met:
``(i) The contribution of materials
containing hazardous substances that the
potentially responsible party arranged or
transported for treatment or disposal, or that
were treated or disposed during the potentially
responsible party's period of ownership or
operation of the facility, is minimal in
comparison to the total volume of materials
containing hazardous substances at the
facility. Such individual contribution is
presumed to be minimal if it is not more than 1
percent of the total volume of such materials,
unless the Administrator identifies a different
threshold based on site-specific factors.
``(ii) Such hazardous substances do not
present toxic or other hazardous effects that
are significantly greater than those of other
hazardous substances at the facility.
``(B)(i) The potentially responsible party is a
natural person, a small business, or a municipality and
can demonstrate to the United States an inability or
limited ability to pay response costs. A party who
enters into a settlement pursuant to this subparagraph
shall be deemed to have resolved its liability under
this Act to the United States for all matters addressed
in the settlement.
``(ii) For purposes of this subparagraph, the
following provisions apply:
``(I) In the case of a small business, the
President shall take into consideration the
ability to pay of the business, if requested by
the business. The term `ability to pay' means
the President's reasonable expectation of the
ability of the small business to pay its total
settlement amount and still maintain its basic
business operations. Such consideration shall
include the business's overall financial
condition and demonstrable constraints on its
ability to raise revenues.
``(II) Any business requesting such
consideration shall promptly provide the
President with all relevant information needed
to determine the business's ability to pay.
``(III) If the President determines that a
small business is unable to pay its total
settlement amount immediately, the President
shall consider alternative payment methods as
may be necessary or appropriate. The methods to
be considered may include installment payments
to be paid during a period of not to exceed 10
years and the provision of in-kind services.
``(iii) Any municipality which is a potentially
responsible party may submit for consideration by the
President an evaluation of the potential impact of the
settlement on essential services that the municipality
must provide, and the feasibility of making delayed
payments or payments over time. If a municipality
asserts that it has additional environmental
obligations besides its potential liability under this
Act, then the municipality may create a list of the
obligations, including an estimate of the costs of
complying with such obligations.
``(iv) Any municipality which is a potentially
responsible party may establish an inability to pay
through an affirmative showing that such payment of its
liability under this Act would either--
``(I) create a substantial demonstrable risk
that the municipality would default on existing
debt obligations, be forced into bankruptcy, be
forced to dissolve, or be forced to make
budgetary cutbacks that would substantially
reduce current levels of protection of public
health and safety; or
``(II) necessitate a violation of legal
requirements or limitations of general
applicability concerning the assumption and
maintenance of fiscal municipal obligations.
``(v) This subparagraph does not limit or affect the
President's authority to evaluate any person's ability
to pay or to enter into settlements with any person
based on that person's inability to pay.''.
(2) By striking paragraphs (2) and (3) of subsection (g) and
inserting the following:
``(2) Basis of determination.--
``(A) In general.--Any person who enters into a
settlement pursuant to this subsection shall provide
any information requested by the President in
accordance with section 104(e). The determination of
whether a person is eligible for an expedited
settlement shall be made on the basis of all
information available to the President at the time the
determination is made.
``(B) Decision of nonqualification; appeal.--
``(i) Decision of nonqualification.--If the
President determines that a party does not
qualify for a settlement under this subsection,
the President shall notify the party, in
writing, within 90 days after the later of--
``(I) a request by the party for
settlement under this subsection; or
``(II) the receipt of all information
required by the President from the
requesting party to make a
determination under this paragraph,
stating the reasons for denial. If the
President does not notify the party within such
90-day period, the request is deemed denied.
``(ii) Appeal.--
``(I) In general.--Notwithstanding
any other provision of this Act, a
denial of settlement under this
subsection may be appealed.
``(II) Authority of environmental
appeals board.--The Environmental
Appeals Board of the Environmental
Protection Agency is authorized to
adjudicate denials of settlement under
this subsection. Within 60 days of the
date on which notice of denial is
received, a denial of settlement may be
appealed to the Board. The Board may
consider whether the President has
followed the provisions of this Act but
shall not determine questions regarding
liability.
``(III) Procedural rules.--In any
appeal made pursuant to this clause,
the documents submitted by the
requester under clause (i)(II) are not
confidential. If a requester agrees not
to contest the share of liability under
section 107 assigned by the President,
the appeal shall include only a
determination of the requester's
ability to pay its allocated share.
``(C) Judicial procedures.--In reviewing a proposed
settlement under this subsection, a United States
district court shall give deference to the President's
determination that the settlement is in the public
interest and meets applicable legal standards for court
approval. Any person who challenges a proposed
settlement bears the burden of proving that the
proposed settlement does not meet applicable legal
standards for court approval. If a settlement is
reached with a requester, the confidential information
supplied to the President under this subsection may be
submitted under seal to the court for in camera review.
``(3) Additional factors relevant to settlements with
municipalities.--In any settlement with a municipality pursuant
to this Act, the President may take additional equitable
factors into account in determining an appropriate settlement
amount, including the limited resources available to that
party, and any in-kind services that the party may provide to
support the response action at the facility. In considering the
value of in-kind services, the President shall consider the
fair market value of those services.''.
(3) In subsection (g)(4) by striking ``$500,000'' and
inserting ``$2,000,000''.
(4) By striking paragraph (5) of subsection (g) and inserting
the following:
``(5) Small business defined.--In this section, the term
`small business' refers to any business entity that employs no
more than 100 individuals and is a `small business concern' as
defined under the Small Business Act (15 U.S.C. 631 et
seq.).''.
(5) By adding at the end of subsection (g) the following:
``(7) Deadline.--If the President does not make a settlement
offer to a small business on or before the 180th day following
the date of the President's determination that such small
business is eligible for an expedited settlement under this
subsection, or on or before the 180th day following the date of
the enactment of this paragraph, whichever is later, such small
business shall have no further liability under this Act, unless
the failure to make a settlement offer on or before such 180th
day is due to circumstances beyond the control of the
President.
``(8) Premiums.--In any settlement under this Act with a
small business, the President may not require the small
business to pay any premium over and above the small business's
share of liability.''.
(c) Municipality Defined.--Section 101 (42 U.S.C. 9601) is amended by
inserting at the end the following:
``(39) 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. The term also includes a natural person acting in
the capacity of an official, employee, or agent of any entity
referred to in the preceding sentence in the performance of
governmental functions.''.
SEC. 307. CLARIFICATION OF LIABILITY FOR RECYCLING TRANSACTIONS.
(a) Recycling Transactions.--Title I (42 U.S.C. 9601 et seq.) is
amended by adding at the end the following:
``SEC. 128. RECYCLING TRANSACTIONS.
``(a) Liability Clarification.--(1) As provided in subsections (b),
(c), (d), and (e), a person who arranged for the recycling of
recyclable material shall not be liable under paragraph (3) or (4) of
section 107(a) with respect to such material.
``(2) A determination whether or not any person shall be liable under
paragraph (3) or (4) of section 107(a) for any material that is not a
recyclable material as that term is used in subsections (b), (c), (d),
or (e) of this section shall be made, without regard to subsection (b),
(c), (d), or (e) of this section.
``(b) Recyclable Material Defined.--For purposes of this section, the
term `recyclable material' means scrap paper, scrap plastic, scrap
glass, scrap textiles, scrap rubber, scrap metal, or spent lead-acid,
spent nickel-cadmium, and other spent batteries, as well as minor
amounts of material incident to or adhering to the scrap material as a
result of its normal and customary use prior to becoming scrap; except
that such term shall not include--
``(1) shipping containers of a capacity from 30 liters to
3,000 liters, whether intact or not, having any hazardous
substance (but not metal bits and pieces or hazardous substance
that form an integral part of the container) contained in or
adhering thereto; or
``(2) any item of material that contained PCBs at a
concentration in excess of 50 ppm or any new standard
promulgated pursuant to applicable Federal laws.
``(c) Transactions Involving Scrap Paper, Plastic, Glass, Textiles,
or Rubber.--
``(1) In general.--Transactions involving recyclable
materials that consist of scrap paper, scrap plastic, scrap
glass, scrap textiles, or scrap rubber shall be deemed to be
arranging for recycling if the person who arranged for the
transaction (by selling recyclable material or otherwise
arranging for the recycling of recyclable material) can
demonstrate by a preponderance of the evidence that all of the
following criteria were met at the time of the transaction:
``(A) The recyclable material met a commercial
specification grade.
``(B) A market existed for the recyclable material.
``(C) A substantial portion of the recyclable
material was made available for use as a feedstock for
the manufacture of a new saleable product.
``(D) The recyclable material could have been a
replacement or substitute for a virgin raw material, or
the product to be made from the recyclable material
could have been a replacement or substitute for a
product made, in whole or in part, from a virgin raw
material.
``(E) For transactions occurring on or after the 90th
day following the date of the enactment of this
section, the person exercised reasonable care to
determine that the facility where the recyclable
material would be handled, processed, reclaimed, or
otherwise managed by another person (hereinafter in
this section referred to as a `consuming facility') was
in compliance with substantive (not procedural or
administrative) provisions of any Federal, State, or
local environmental law or regulation, or compliance
order or decree issued pursuant thereto, applicable to
the handling, processing, reclamation, storage, or
other management activities associated with the
recyclable material.
``(2) Reasonable care.--For purposes of this subsection,
`reasonable care' shall be determined using criteria that
include--
``(A) the price paid in the recycling transaction;
``(B) 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 the recyclable material; and
``(C) the result of inquiries made to the appropriate
Federal, State, or local environmental agency (or
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 or regulation, or compliance
order or decree issued pursuant thereto, applicable to
the handling, processing, reclamation, storage, or
other management activities associated with the
recyclable material.
``(3) Treatment of certain requirements as substantive
provisions.--For purposes of this subsection, a requirement to
obtain a permit applicable to the handling, processing,
reclamation, or other management activities associated with the
recyclable materials shall be deemed to be a substantive
provision.
``(d) Transactions Involving Scrap Metal.--
``(1) In general.--Transactions involving recyclable
materials that consist of scrap metal shall be deemed to be
arranging for recycling if the person who arranged for the
transaction (by selling recyclable material or otherwise
arranging for the recycling of recyclable material) can
demonstrate by a preponderance of the evidence that at the time
of the transaction--
``(A) the person met the criteria set forth in
subsection (c) with respect to the scrap metal;
``(B) the person was in compliance with any
applicable regulations or standards regarding the
storage, transport, management, or other activities
associated with the recycling of scrap metal that the
Administrator issues under the Solid Waste Disposal Act
(42 U.S.C. 6901 et seq.) after the date of the
enactment of this section and with regard to
transactions occurring after the effective date of such
regulations or standards; and
``(C) the person did not melt the scrap metal prior
to the transaction.
``(2) Melting of scrap metal.--For purposes of paragraph
(1)(C), melting of scrap metal does not include the thermal
separation of 2 or more materials due to differences in their
melting points (referred to as `sweating').
``(3) Scrap metal defined.--In this subsection, the term
`scrap metal' means--
``(A) bits and pieces of metal parts (such as bars,
turnings, rods, sheets, and wire) or metal pieces that
may be combined together with bolts or soldering (such
as radiators, scrap automobiles, and railroad box cars)
which when worn or superfluous can be recycled; and
``(B) notwithstanding paragraph (1)(C), metal
byproducts of the production of copper and copper based
alloys that--
``(i) are not the sole or primary products of
a secondary production process,
``(ii) are not produced separately from the
primary products of a secondary production
process,
``(iii) are not and have not been stored in a
pile or surface impoundment, and
``(iv) are sold to another recycler that is
not speculatively accumulating such byproducts,
except for any scrap metal that the Administrator excludes from
this definition by regulation.
``(e) Transactions Involving Batteries.--
``(1) In general.--Transactions involving recyclable
materials that consist of spent lead-acid batteries, spent
nickel-cadmium batteries, or other spent batteries shall be
deemed to be arranging for recycling if the person who arranged
for the transaction (by selling recyclable material or
otherwise arranging for the recycling of recyclable material)
can demonstrate by a preponderance of the evidence that at the
time of the transaction--
``(A) the person met the criteria set forth in
subsection (c) with respect to the spent lead-acid
batteries, spent nickel-cadmium batteries, or other
spent batteries but did not recover the valuable
components of such batteries; and
``(B)(i) with respect to transactions involving lead-
acid batteries, the person was in compliance with
applicable Federal environmental regulations or
standards, and any amendments thereto, regarding the
storage, transport, management, or other activities
associated with the recycling of spent lead-acid
batteries;
``(ii) with respect to transactions involving nickel-
cadmium batteries, Federal environmental regulations or
standards were in effect regarding the storage,
transport, management, or other activities associated
with the recycling of spent nickel-cadmium batteries
and the person was in compliance with such regulations
or standards and any amendments thereto; or
``(iii) with respect to transactions involving other
spent batteries, Federal environmental regulations or
standards were in effect regarding the storage,
transport, management, or other activities associated
with the recycling of such batteries and the person was
in compliance with such regulations or standards and
any amendments thereto.
``(2) Recovery of valuable battery components.--For purposes
of paragraph (1)(A), a person who, by contract, arranges or
pays for processing of batteries by an unrelated third person
and receives from such third person materials reclaimed from
such batteries shall not thereby be deemed to recover the
valuable components of such batteries.
``(f) Exclusions.--
``(1) In general.--The exemptions set forth in subsections
(c), (d), and (e) shall not apply 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 or for energy recovery or
incineration; or
``(iii) for transactions occurring on or
before the 90th day following the date of the
enactment of this section, the consuming
facility was not in compliance with a
substantive (not a procedural or
administrative) provision of any Federal,
State, or local environmental law orregulation,
or compliance order or decree issued pursuant thereto, applicable to
the handling, processing, reclamation, or other management activities
associated with the recyclable material;
``(B) the person had reason to believe that hazardous
substances had been added to the recyclable material
for purposes other than processing for recycling; or
``(C) the person failed to exercise reasonable care
with respect to the management and handling of the
recyclable material (including adhering to customary
industry practices current at the time of the recycling
transaction designed to minimize, through source
control, contamination of the recyclable material by
hazardous substances).
``(2) Objectively reasonable basis.--For purposes of
paragraph (1)(A), an objectively reasonable basis for belief
shall be determined using criteria that include the size of the
person's business, customary industry practices (including
customary industry practices current at the time of the
recycling transaction designed to minimize, through source
control, contamination of the recyclable material by hazardous
substances), the price paid in the recycling transaction, and
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 the
recyclable material.
``(3) Treatment of certain requirements as substantive
provisions.--For purposes of this subsection, a requirement to
obtain a permit applicable to the handling, processing,
reclamation, or other management activities associated with
recyclable material shall be deemed to be a substantive
provision.
``(g) Effect on Owner Liability.--Nothing in this section shall be
deemed to affect the liability of a person under paragraph (1) or (2)
of section 107(a).
``(h) Relationship to Liability Under Other Laws.--Nothing in this
section shall affect--
``(1) liability under any other Federal, State, or local
statute or regulation promulgated pursuant to any such statute,
including any requirements promulgated by the Administrator
under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.); or
``(2) the ability of the Administrator to promulgate
regulations under any other statute, including the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.).
``(i) Limitation on Statutory Construction.--Nothing in this section
shall be construed to--
``(1) affect any defenses or liabilities of any person to
whom subsection (a)(1) does not apply; or
``(2) create any presumption of liability against any person
to whom subsection (a)(1) does not apply.''.
(b) Service Station Dealers.--Section 114(c) (42 U.S.C. 9614(c)) is
amended as follows:
(1) In paragraph (1)(B)--
(A) by striking ``authorities.'' and inserting
``authorities that were in effect on the date of such
activity.''.
(2) In paragraph (2)--
(A) by striking ``a service station dealer may
presume that'';
(B) by striking ``is not mixed with'' and inserting
``is presumed to be not mixed with''; and
(C) by striking subparagraphs (A) and (B) and
inserting the following:
``(A) has been removed from the engine of a light
duty motor vehicle or household appliance by the owner
of such vehicle or appliance and is presented by such
owner to the dealer for collection, accumulation, and
delivery to an oil recycling facility; or
``(B) has been removed from such an engine or
appliance by the dealer for collection, accumulation,
and delivery to an oil recycling facility.''.
(3) By striking paragraph (4).
SEC. 308. ALLOCATION.
Title I (42 U.S.C. 9601 et seq.) is further amended by adding at the
end the following new section:
``SEC. 129. ALLOCATION.
``(a) Purpose of Allocation.--The purpose of an allocation under this
section is to determine an equitable allocation of the costs of a
removal or remedial action at a facility on the National Priorities
List that is eligible for an allocation under this section, including
the share to be borne by the Trust Fund under subsection (i).
``(b) Eligible Response Action.--
``(1) In general.--A removal or remedial action is eligible
for an allocation under this section if the action is at a
facility on the National Priorities List and if--
``(A) the performance of the removal or remedial
action is not the subject of an administrative order or
consent decree as of September 29, 1999;
``(B) the President's estimate of the costs for
performing such removal or remedial action that have
not been recovered by the President as of September 29,
1999, exceeds $2,000,000; and
``(C) there are response costs attributable to the
Fund share under subsection (i).
``(2) Excluded response actions.--
``(A) Chain of title sites.--Notwithstanding
paragraph (1), a removal or remedial action is not
eligible for an allocation if--
``(i) the facility is located on a contiguous
area of real property under common ownership or
control; and
``(ii) all of the parties potentially liable
for response costs are current or former owners
or operators of such facility,
unless the current owner of such facility is insolvent
or defunct.
``(B) Current owner.--If the current owner of the
property on which the facility is located is not liable
under section 107(b)(2), the owner immediately
preceding such owner shall be considered to be the
current owner of the property for purposes of
subparagraph (A).
``(C) Affiliated parties.--If the current owner is
affiliated with any other person through any direct or
indirect familial relationship or any contractual,
corporate, or financial relationship other than that
created by instruments by which title to the facility
is conveyed or financed or by a contract for the sale
of goods or services, and such other person is liable
for response costs at the facility, such other person's
assets may be considered assets of the current owner
when determining under subparagraph (A) whether the
current owner is insolvent or defunct.
``(c) Discretionary Allocation Process.--Notwithstanding subsection
(b), the President may initiate an allocation under this section for
any removal or remedial action at a facility listed on the National
Priorities List and may provide a Fund share under subsection (i).
``(d) Allocation Process.--For each eligible removal or remedial
action, the President shall ensure that a fair and equitable allocation
of liability is undertaken at an appropriate time by a neutral
allocator selected by agreement of the parties under such process or
procedures as are agreed by the parties. An allocation under this
section shall apply to subsequent removal or remedial actions for a
facility unless the allocator determines that the allocation should
address only one or more of such removal or remedial actions.
``(e) Early Offer of Settlement.--As soon as practicable and prior to
the selection of an allocator, the President shall provide an estimate
of the aggregate Fund share in accordance with subsection (i). The
President shall offer to contribute to a settlement of liability for
response costs on the basis of this estimate.
``(f) Representation of the United States and Affected States.--The
Administrator or the Attorney General, as a representative of the Fund,
and a representative of any State that is or may be responsible
pursuant to section 104(c)(3) for any costs of a removal or remedial
action that is the subject of an allocation shall be entitled to
participate in the allocation proceeding to the same extent as any
potentially responsible party.
``(g) Moratorium on Litigation.--
``(1) Moratorium on litigation.--No person may commence any
civil action or assert any claim under this Act seeking
recovery of any response costs, or contribution toward such
costs, in connection with any response action for which the
President has initiated an allocation under this section, until
150 days after issuance of the allocator's report or of a
report under this section.
``(2) Stay.--If any action or claim referred to in paragraph
(1) is pending on the date of enactment of this section or on
the date of initiation of an allocation, such action or claim
(including any pendant claim under State law over which a court
is exercising jurisdiction) shall be stayed until 150 days
after the issuance of the allocator's report or of a report
under this section, unless the court determines that a stay
will result in manifest injustice.
``(3) Tolling of limitations period.--Any applicable
limitations period with respect to actions subject to paragraph
(1) shall be tolled from the earlier of--
``(A) the date of listing of the facility on the
National Priorities List, where such listing occurs
after the date of enactment of this section; or
``(B) the commencement of the allocation process
pursuant to this section, until 180 days after the
President rejects or waives the President's right to
reject the allocator's report.
``(h) Effect on Principles of Liability.--The allocation process
under this section shall not be construed to modify or affect in any
way the principles of liability under this title as determined by the
courts of the United States.
``(i) Fund Share.--For each removal or remedial action that is the
subject of an allocation under this section, the allocator shall
determine the share of response costs, if any, to be allocated to the
Fund. The Fund share shall consist of the sum of following amounts:
``(1) The amount attributable to the aggregate share of
response costs that the allocator determines to be attributable
to parties who are not affiliated with any potentially
responsible party and whom the President determines are
insolvent or defunct.
``(2) The amount attributable to the difference in the
aggregate share of response costs that the allocator determines
to be attributable to parties who have resolved their liability
to the United States under section 122(g)(1)(B) (relating to
limited ability to pay settlements) for the removal or remedial
action and the amount actually assumed by those parties in any
settlement for the response action with the United States.
``(3) Except as provided in subsection (j), the amount
attributable to the aggregate share of response costs that the
allocator determines to be attributable to persons who are
entitled to an exemption from liability under subsection (t) or
(u) of section 107 or section 114(c) or 128 at a facility or
vessel on the National Priorities List.
``(4) The amount attributable to the difference in the
aggregate share of response costs that an allocator determines
to be attributable to persons subject to a limitation on
liability under section 107(u) or 107(v) and the amount
actually assumed by those parties in accordance with such
limitation.
``(j) Certain MSW Generators.--Notwithstanding subsection (i)(3), the
allocator shall not attribute any response costs to any person who
would have been liable under section 107(a)(3) or 107(a)(4) but for the
exemption from liability under section 107(u)(3).
``(k) Unattributable Share.--The share attributable to the aggregate
share of response costs incurred to respond to materials containing
hazardous substances for which no generator, transporter, or owner or
operator at the time of disposal or placement, can be identified shall
be divided pro rata among the potentially responsible parties and the
Fund share determined under subsection (i).
``(l) Expedited Allocation.--At the request of the potentially
responsible parties or the United States, to assist in reaching
settlement, the allocator may, prior to reaching a final allocation of
response costs among all parties, first provide an estimate of the
aggregate Fund share, in accordance with subsection (i), and an
estimate of the aggregate share of the potentially responsible parties.
``(m) Settlement Before Allocation Determination.--
``(1) Settlement of all removal or remedial costs.--A group
of potentially responsible parties may submit to the allocator
a private allocation for any removal or remedial action that is
within the scope of the allocation. If such private allocation
meets each of the following criteria, the allocator shall
promptly adopt it as the allocation report:
``(A) The private allocation is a binding allocation
of at least 80 percent of the past, present, and future
costs of the removal or remedial action.
``(B) The private allocation does not allocate any
share to any person who is not a signatory to the
private allocation.
``(C) The signatories to the private allocation waive
their rights to seek recovery of removal or remedial
costs or contribution under this Act with respect to
the removal or remedial action from any other party at
the facility.
``(2) Other settlements.--The President may use the authority
under section 122(g) to enter into settlement agreements with
respect to any response action that is the subject of an
allocation at any time.
``(n) Settlements Based on Allocations.--
``(1) In general.--Subject to paragraph (2), the President
shall accept an offer of settlement of liability for response
costs for a removal or remedial action that is the subject of
an allocation if--
``(A) the offer is made within 90 days after issuance
of the allocator's report; and
``(B) the offer is based on the share of response
costs specified by the allocator and such other terms
and conditions (other than the allocated share of
response costs) as are acceptable to the President.
``(2) Rejection of allocation report.--The requirement of
paragraph (1) to accept an offer of settlement shall not apply
if the Administrator and the Attorney General reject the
allocation report.
``(o) Reimbursement for UAO Performance.--
``(1) Reimbursement.--The Administrator shall enter into
agreements to provide mixed funding to reimburse parties who
satisfactorily perform, pursuant to an administrative order
issued under section 106, a removal or remedial action eligible
for an allocation under subsection (b) for the reasonable and
necessary costs of such removal or remedial action to the
extent that--
``(A) the costs incurred by a performing party exceed
the share of response costs assigned to such party in
an allocation that is performed in accordance with the
provisions of this section;
``(B) the allocation is not rejected by the United
States; and
``(C) the performing party, in consideration for such
reimbursement--
``(i) agrees not to contest liability for all
response costs not inconsistent with the
National Contingency Plan to the extent of the
allocated share;
``(ii) receives no covenant not to sue; and
``(iii) waives contribution rights against
all parties who are potentially responsible
parties for the response action, as well as
waives any rights to challenge any settlement
the President enters into with any other
potentially responsible party.
``(2) Offset.--Any reimbursement provided to a performing
party under this subsection shall be subject to equitable
offset or reduction by the Administrator upon a finding of a
failure to perform any aspect of the remedy in a proper and
timely manner.
``(3) Time of payment.--Any reimbursement to a performing
party under this subsection shall be paid after work is
completed, but no sooner than completion of the construction of
the remedial action and, subject to paragraph (5), without any
increase for interest or inflation.
``(4) Limit on amount of reimbursement.--The amount of
reimbursement under this subsection shall be further limited as
follows:
``(A) Performing parties who waive their right to
challenge remedy selection at the end of the moratorium
following allocation shall be entitled to reimbursement
of actual dollars spent by each such performing party
in excess of the party's share and attributable by the
allocator to the Fund share under subsection (i).
``(B) Performing parties who retain their right to
challenge the remedy shall be reimbursed (i) for actual
dollars spent by each such performing party, but not to
exceed 90 percent of the Fund share, or (ii) an amount
equal to 80 percent of the Fund share if the Fund share
is less than 20 percent of responsibility at the site.
``(5) Reimbursement of shares attributable to other
parties.--If reimbursement is made under this subsection to a
performing party for work in excess of the performing party's
allocated share that is not attributable to the Fund share, the
performing party shall be entitled to all interest (prejudgment
and post judgment, whether recovered from a party or earned in
a site account) that has accrued on money recovered by the
United States from other parties for such work at the time
construction of the remedy is completed.
``(6) Reimbursement claims.--The Administrator shall require
that all claims for reimbursement be supported by--
``(A) documentation of actual costs incurred; and
``(B) sufficient information to enable the
Administrator to determine whether such costs were
reasonable.
``(7) Independent auditing.--The Administrator may require
independent auditing of any claim for reimbursement.
``(p) Post-Settlement Litigation.--Following expiration of the
moratorium periods under subsection (g), the United States may request
the court to lift the stay and proceed with an action under this Act
against any potentially responsible party that has not resolved its
liability to the United States following an allocation, seeking to
recover response costs that are not recovered through settlements with
other persons. All such actions shall be governed by the principles of
liability under this Act as determined by the courts of the United
States.
``(q) Response Costs.--
``(1) Description.--The following costs shall be considered
response costs for purposes of this Act:
``(A) Costs incurred by the United States and the
court of implementing the allocation procedure set
forth in this section, including reasonable fees and
expenses of the allocator.
``(B) Costs paid from amounts made available under
section 111(a)(1).
``(2) Settled parties.--Any costs of allocation described in
paragraph (1)(A) and incurred after a party has settled all of
its liability with respect to the response action or actions
that are the subject of the allocation may not be recovered
from such party.
``(r) Federal, State, and Local Agencies.--All Federal, State, and
local governmental departments, agencies, or instrumentalities that are
identified as potentially responsible parties shall be subject to, and
be entitled to the benefits of, the allocation process and allocation
determination provided by this section to the same extent as any other
party.
``(s) Source of Funds.--Payments made by the Trust Fund, or work
performed on behalf of the Trust Fund, to meet obligations incurred by
the President under this section to pay a Fund share or to reimburse
parties for costs incurred in excess of the parties' allocated shares
under subsections (e), (m), (n), or (o) shall be funded from amounts
made available by section 111(a)(1).
``(t) Savings Provisions.--Except as otherwise expressly provided,
nothing in this section shall limit or affect the following:
``(1) The President's--
``(A) authority to exercise the powers conferred by
sections 103, 104, 105, 106, 107, or 122;
``(B) authority to commence an action against a party
where there is a contemporaneous filing of a judicial
consent decree resolving that party's liability;
``(C) authority to file a proof of claim or take
other action in a proceeding under title 11, United
States Code;
``(D) authority to file a petition to preserve
testimony under Rule 27 of the Federal Rules of Civil
Procedure; or
``(E) authority to take action to prevent dissipation
of assets, including actions under chapter 176 of title
28, United States Code.
``(2) The ability of any person to resolve its liability at a
facility to any other person at any time before or during the
allocation process.
``(3) The validity, enforceability, finality, or merits of
any judicial or administrative order, judgment, or decree
issued, signed, lodged, or entered, before the date of
enactment of this paragraph with respect to liability under
this Act, or authority to modify any such order, judgment, or
decree with regard to the response action addressed in the
order, judgment or decree.
``(4) The validity, enforceability, finality, or merits of
any pre-existing contract or agreement relating to any
allocation of responsibility or any indemnity for, or sharing
of, any response costs under this Act.''.
SEC. 309. STANDARD FOR CLEANUP BY DRY CLEANERS.
(a) General Rule.--The maximum level of remediation for a dry
cleaning solvent in the soil, surface water, groundwater, and other
environmental media (other than for groundwater or surface water
actually used as a drinking water source) that any person may require
of a dry cleaner shall be equal to the soil screening level for
inhalation for that dry cleaning solvent determined in accordance with
the Soil Screening Guidance Document.
(b) Default Maximum Remediation Level.--Until a maximum remediation
level is determined for a facility in accordance with subsection (a),
the maximum level of remediation of that facility for a dry cleaning
solvent in the soil, surface water, groundwater, and other
environmental media (other than for groundwater or surface water
actually used as a drinking water source) that any person may require
of a dry cleaner shall be equal to the generic soil screening level for
inhalation for that dry cleaning solvent as set forth in the Soil
Screening Guidance Document.
(c) Applicability to CERCLA.--The applicable requirements for dry
cleaning solvents under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 shall be the remediation
standards established by subsections (a) and (b).
(d) Changes to Standards.--The Administrator of the Environmental
Protection Agency may, by rule, change the standards of subsections (a)
and (b) in accordance with the provisions of any revised Soil Screening
Guidance Document published after the date of enactment of this Act if
necessary to protect human health or the environment.
(e) Nonpreemption.--Nothing in this section--
(1) shall preempt or otherwise prevent the Federal Government
or a State government from remediating soil, surface water,
groundwater, or other environmental media to a level other than
the maximum remediation level determined in accordance with
this section if the government determines, on a site-by-site
basis, that a more stringent standard is necessary to protect
human health or the environment; or
(2) shall alter or affect the Federal drinking water
standards for public consumption under title XIV of the Public
Health Service Act.
(f) Definitions.--For purposes of this section, the following
definitions apply:
(1) Dry cleaner.--The term ``dry cleaner'' means a person who
was or is engaged in dry cleaning or in supplying goods or
equipment to such a person or the owner of land on or a
facility in which a person was or is conducting dry cleaning.
(2) Person.--The term ``person'' includes a governmental
entity.
(3) Soil screening guidance document.--The term ``Soil
Screening Guidance Document'' means the Soil Screening
Guidance: User's Guide (EPA/540/R-96/018) and the Soil
Screening Guidance: Technical Background Document (EPA/540/R-
95/128) developed by the Environmental Protection Agency.
TITLE IV--PUBLIC HEALTH
SEC. 401. PUBLIC HEALTH AUTHORITIES.
(a) Disease Registry and Medical Care Providers.--Section 104(i)(1)
(42 U.S.C. 9604(i)(1)) is amended as follows:
(1) By striking subparagraph (A) and inserting the following:
``(A) in cooperation with the States, for scientific purposes
and public health purposes, establish and maintain a national
registry of persons exposed to toxic substances;''.
(2) By striking the last sentence and inserting the
following:
``In cases of public health emergencies, exposed persons shall be
eligible for referral to licensed or accredited health care
providers.''.
(b) Substance Profiles.--Section 104(i)(3) (42 U.S.C. 9604(i)(3)) is
amended as follows:
(1) By inserting ``(A)'' after ``(3)''.
(2) By redesignating subparagraphs (A), (B), and (C) as
clauses (i), (ii), and (iii), respectively.
(3) By striking ``Any toxicological profile or revision
thereof'' and all that follows through ``parties.'' and
inserting the following:
``(B) 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 prepared under this
paragraph shall be for those substances highest on the list of
priorities under paragraph (2) for which profiles have not previously
been prepared or for substances not on the list but which have been
found at facilities for which there has been a response action under
this Act and which have been determined by ATSDR to be of health
concern. Profiles required under this paragraph shall be revised and
republished, as appropriate, based on scientific development and shall
be provided to the States, including State health departments, tribal
health officials, and local health departments, and made available to
other interested parties.''.
(c) Determining Health Effects.--Section 104(i)(5)(A) (42 U.S.C.
9604(i)(5)(A)) is amended as follows:
(1) By striking ``designed to determine the health effects
(and techniques for development of methods to determine such
health effects) of such substance.'' and inserting ``conducted
directly or by means such as cooperative agreements and grants
with appropriate public and nonprofit institutions. The
research shall be designed to determine the health effects of
the substance and techniques for development of methods to
determine such health effects.''.
(2) By redesignating clause (iv) as clause (v).
(3) By striking ``and'' at the end of clause (iii).
(4) By inserting after clause (iii) the following:
``(iv) laboratory and other studies to develop innovative
techniques for predicting organ-specific, site-specific, and
system-specific acute and chronic toxicity; and''.
(d) Public Health at NPL Facilities.--
(1) Preliminary public health assessments.--Section 104(i)(6)
(42 U.S.C. 9604(i)(6)) is amended by striking ``(6)(A)'' and
all that follows through the period at the end of subparagraph
(A) and inserting the following:
``(6)(A)(i) The Administrator of ATSDR shall perform a preliminary
public health assessment or health consultation for each facility on
the National Priorities List, including those facilities owned by any
department, agency, or instrumentality of the United States, and those
sites that are the subject of a petition under subparagraph (B). The
preliminary public health assessment or health consultation shall be
commenced as soon as practicable after each facility is proposed for
inclusion on the National Priorities List or the Administrator of ATSDR
accepts a petition for a public health assessment. If the Administrator
of ATSDR, in consultation with local public health officials,
determines that the results of a preliminary public health assessment
or health consultation indicate the need for a public health
assessment, the Administrator of the ATSDR shall conduct the public
health assessment of those sites posing a health hazard. The results of
the public health assessment should be considered in selecting the
remedial action for the facility.
``(ii) The Administrator of ATSDR, in cooperation with States, shall
design public health assessments that take into account the needs and
conditions of the affected community.
``(iii) The Administrator of EPA shall place highest priority on
facilities with releases of hazardous substances which result in actual
ongoing human exposures at levels of public health concern or adverse
health effects as identified in a public health assessment conducted by
the Administrator of ATSDR or are reasonably anticipated based on
currently known facts.''.
(2) Strategies for obtaining data; community involvement.--
Section 104(i)(6)(D) (42 U.S.C. 9604(i)(6)(D)) is amended as
follows:
(A) By inserting ``(i)'' after ``(D)''.
(B) By adding at the end the following:
``(ii) The President and the Administrator of ATSDR shall develop
strategies to obtain relevant on-site and off-site characterization
data for use in the public health assessment. The President shall, to
the maximum extent practicable, provide the Administrator of ATSDR with
the data and information necessary to make public health assessments
sufficiently prior to the choice of remedial actions to allow the
Administrator of ATSDR to complete these assessments.
``(iii) Where appropriate, the Administrator of ATSDR shall provide
to the President, as soon as practicable after site discovery,
recommendations for sampling environmental media for hazardous
substances of public health concern. To the extent feasible, the
President shall incorporate such recommendations into the President's
site investigation activities.
``(iv) In order to improve community involvement in public health
assessments, the Administrator of ATSDR shall carry out each of the
following duties:
``(I) Collect from community advisory groups, from State and
local public health authorities, and from other sources in
communities affected or potentially affected by releases of
hazardous substances data regarding exposure, relevant human
activities, and other factors.
``(II) Design public health assessments that take into
account the needs and conditions of the affected community.
Community-based research models, local expertise, and local
health resources should be used in designing the public health
assessment. In developing such designs, emphasis shall be
placed on collection of actual exposure data, and sources of
multiple exposure shall be considered.''.
(3) Conforming amendments.--So much of section 104(i) (42
U.S.C. 9604(i)) as is not added by this Act is amended by
inserting ``public'' before ``health assessment'' each place it
appears and before ``health assessments'' each place it
appears.
(e) Health Studies.--Section 104(i)(7) (42 U.S.C. 9604(i)(7)) is
amended by striking ``(7)(A)'' and all that follows through the period
at the end of subparagraph (A) and inserting the following:
``(7)(A) Whenever in the judgment of the Administrator of ATSDR it is
appropriate on the basis of the results of a public health assessment
or on the basis of other appropriate information, the Administrator of
ATSDR shall conduct a human health study of exposure or other health
effects for selected groups or individuals in order to determine the
desirability of conducting full scale epidemiologic or other health
studies of the entire exposed population.''.
(f) Distribution of Materials to Health Professionals and Medical
Centers.--Section 104(i)(14) (42 U.S.C. 9604(i)(14)) is amended to read
as follows:
``(14) Educational Materials.--In implementing this subsection and
other health-related provisions of this Act the Administrator of ATSDR,
in cooperation with the States, shall--
``(A) assemble, develop as necessary, and distribute to the
State and local health officials, tribes, medical colleges,
physicians, nursing institutions, nurses, and other health
professionals and medical centers appropriate educational
materials (including short courses) on the medical
surveillance, screening, and methods of prevention, diagnosis,
and treatment of injury or disease related to exposure to
hazardous substances (giving priority to those listed under
paragraph (2)) through means the Administrator of ATSDR
considers appropriate; and
``(B) assemble, develop as necessary, and distribute to the
general public and to at-risk populations appropriate
educational materials and other information on human health
effects of hazardous substances.''.
(g) Grants, Contracts, and Community Assistance Activities.--Section
104(i)(15) (42 U.S.C. 9604(i)(15)) is amended as follows:
(1) By striking ``(15)'' and inserting the following: ``(15)
Grants, Contracts, and Community Assistance.--(A)''.
(2) In the first sentence by striking ``cooperative
agreements with States (or political subdivisions thereof)''
and inserting ``grants, cooperative agreements, or contracts
with States (or political subdivisions thereof), other
appropriate public authorities, public or private institutions,
colleges, universities, and professional associations''.
(3) By adding at the end the following:
``(B) When a public health assessment is conducted at a facility on
the National Priorities List, or a facility is being evaluated for
inclusion on the National Priorities List, the Administrator of ATSDR
may provide the assistance specified in this paragraph to public or
private nonprofit entities, individuals, and community-based groups
that may be affected by the release or threatened release of hazardous
substances in the environment.
``(C) The Administrator of ATSDR, pursuant to the grants, cooperative
agreements, and contracts referred to in this paragraph, is authorized
and directed to provide, where appropriate, diagnostic services, health
data registries, and preventative public health education to
communities affected by the release of hazardous substances.''.
(h) Peer Review Committee.--Section 104(i) (42 U.S.C. 9604(i)) is
amended by adding at the end the following:
``(19) Peer Review Committee.--The Administrator of ATSDR shall
establish an external peer review committee of qualified health
scientists who serve for fixed periods and meet periodically to--
``(A) provide guidance on initiation of studies;
``(B) assess the quality of study reports funded by the
agency; and
``(C) provide guidance on effective and objective risk
characterization and communication.
The peer review committee may include additional specific experts
representing a balanced group of stakeholders on an ad hoc basis for
specific issues. Meetings of the committee should be open to the
public.''.
(i) Conforming Amendments.--Section 104(i) is further amended as
follows:
(1) In paragraph (16) by inserting ``Personnel.--'' after
``(16)''.
(2) In paragraph (17) by inserting ``Authorities.--'' after
``(17)''.
(3) In paragraph (18) by inserting ``Pollutants and
Contaminants.--'' after ``(18)''.
SEC. 402. INDIAN HEALTH PROVISIONS.
Section 104(i) (42 U.S.C. 9604(i)) is further amended as follows:
(1) In paragraph (1) by inserting ``the Director of the
Indian Health Service,'' after ``the Secretary of
Transportation,''.
(2) In paragraph (5)(A) by inserting ``and the Director of
the Indian Health Service'' after ``EPA''.
(3) In paragraph (6)(C) by inserting ``where low population
density is not used as an excluding risk factor'' after
``health appears highest''.
(4) By adding at the end of paragraph (6)(E) the following:
``If the Administrator of ATSDR or the Administrator of EPA
does not act on the recommendations of the State, the
Administrator of ATSDR or EPA must respond in writing to the
State or tribe as to why the Administrator of ATSDR or EPA has
not acted on the recommendations.''.
(5) In paragraph (6)(F)--
(A) by striking ``and'' after ``emissions,''; and
(B) by inserting ``, and any other pathways resulting
from subsistence activities'' after ``food chain
contamination''.
(6) By striking the period at the end of paragraph (6)(G) and
inserting the following: ``, and may 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.''.
SEC. 403. HAZARD RANKING SYSTEM.
Section 105(c) (42 U.S.C. 9605(c)) is amended by adding at the end
the following:
``(5) Risk prioritization.--In setting priorities under
subsection (a)(8), the President shall place highest priority
on facilities with releases of hazardous substances which
result in actual ongoing human exposures at levels of public
health concern or demonstrated adverse health effects as
identified in a public health assessment conducted by the
Agency for Toxic Substances and Disease Registry or are
reasonably anticipated based on currently known facts.
``(6) Prior response action.--Any evaluation under this
section shall take into account all prior response actions
taken at a facility.''.
SEC. 404. DISCLOSURE OF RELEASES OF HAZARDOUS SUBSTANCES AT SUPERFUND
SITES.
Section 117 (42 U.S.C. 9617) is amended as follows:
(1) In the section heading by inserting ``AND DISCLOSURE''
after ``PUBLIC PARTICIPATION''.
(2) By adding at the end the following new subsection:
``(f) Disclosure of Releases of Hazardous Substances at Superfund
Sites.--
``(1) Information.--The President shall make the following
information available to the public as provided in paragraph
(2) about releases of hazardous substances, pollutants, and
contaminants from facilities that have been listed or proposed
for listing on the National Priorities List at the following
stages of a response action:
``(A) Removal actions.--A best estimate of the
releases from the facility before the removal action is
taken, during the period of the removal action, and
that are expected after the removal action is
completed.
``(B) Remedial investigation.--As part of the
requirements for the remedial investigation, a summary
and best estimate of the releases from the facility.
``(C) Feasibility study.--As part of the feasibility
study, a summary and best estimate of the releases that
are expected both during and at the conclusion of each
remedial option that is considered.
``(D) Record of decision.--As part of the record of
decision, a summary and best estimate of the releases
that are expected both during and at the conclusion of
implementation of the selected remedy.
``(E) Construction completion.--After construction of
the remedy is complete and during operation and
maintenance, a best estimate of the releases from the
facility.
``(2) Availability of information.--Information provided
under this subsection shall be made available to the residents
of the communities surrounding the covered facility, to police,
fire, and emergency medical personnel in the surrounding
communities, and to the general public. To improve access to
such information by Federal, State, and local governments and
researchers, such information may be provided to the general
public through electronic or other means. Such information
shall be expressed in common units and a common format.
``(3) Source of information and methods of collection.--
Nothing in this subsection shall require the collection of any
additional data beyond that already collected as part of the
response action. If data are not readily available, the
information provided under this subsection shall be based on
best estimates.''.
Purpose and Summary
The purpose of H.R. 2580, the Land Recycling Act of 1999,
is to promote the cleanup and redevelopment of brownfields and
to make the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA, commonly known as ``Superfund''; 42
U.S.C. Sec. 9601 et seq.) fairer and more efficient.
As reported, H.R. 2580 contains four titles. The first
title is devoted to the cleanup and redevelopment of abandoned
or underutilized industrial or commercial properties where the
fear of actual or potential environmental contamination
complicates redevelopment. Such sites are commonly known as
``brownfields.'' The legislation promotes brownfields
redevelopment in several ways: (1) by providing finality with
respect to voluntary environmental cleanups conducted pursuant
to State law; (2) by streamlining the permitting bureaucracy
that can apply to State cleanups; (3) by exempting certain
future or current innocent owners of land from liability under
CERCLA; (4) by amending the remedy selection provisions of
current law to expedite cleanups; and (5) by providing certain
grants and loans.
Title II of the bill provides a stable funding source for
the Superfund program for five years. In addition, it provides
for $250 million in mandatory spending during this period to
pay for the liability relief provided in Title III of the bill.
Title III addresses liability matters. The provisions
primarily focus on exempting certain parties from liability,
including small businesses, recyclers, and those who generated
municipal solid waste. In doing so, the bill makes clear that,
with certain exceptions, this liability is transferred to the
Superfund Trust Fund, and not to parties that remain liable at
Superfund sites. This is accomplished largely through the
establishment of an allocation system, under which the
liability of parties at Superfund sites is determined and
settled outside of the Federal court system.
Title IV of the bill addresses public health matters.
Background and Need for Legislation
A. Short Background
In 1980, Congress enacted CERCLA to clean up toxic waste
sites across the country. Under CERCLA, Congress created a $1.6
billion trust fund (the ``Superfund'') as a source of funding
for the Superfund program, and established a retroactive,
strict, joint and several liability scheme to identify
``potentially responsible parties'' (PRPs) to pay for the
cleanups. It also provided the Environmental Protection Agency
(EPA) with authority to clean up sites, and provided EPA and
third parties with authority to sue others to recover cleanup
costs.
In 1986, Congress enacted the Superfund Amendments and
Reauthorization Act (SARA), amending CERCLA to establish, among
other things, detailed rules for remedy selection cleanup
standards for Superfund sites and providing more specific
cleanup standards. SARA also allowed EPA to pay a portion of
the costs of cleaning up a site out of the Trust Fund, and gave
EPA the authority to establish non-binding allocations of
responsibility. In 1990, Congress extended Superfund's
authorization and taxing authorities as part of the Omnibus
Budget Reconciliation Act of 1990 (Public Law 101-508
Sec. 6301, amending CERCLA Sec. 111 (42 U.S.C. Sec. 9611)). The
authorization of appropriations was extended through September
30, 1994, and taxes were provided through December 31, 1995.
Notwithstanding the expiration of these authorizations,
Congress has continued to fund the Superfund program out of the
excess revenues that had built up in the Superfund Trust Fund.
Through Fiscal Year 1999, Congress appropriated $20.6 billion
for Superfund.
B. Overbroad Superfund Liability Scheme
1. A Nightmarish web of litigation
Superfund's liability scheme has generated enormous amounts
of litigation and transaction costs. This scheme has been
described as unfair because it holds parties jointly and
severally liable for the costs of site cleanups, even where a
party did not cause a significant portion of the contamination
at a site. When it enacted CERCLA in 1980, the Conference
Committee rejected the work of the House Committee on
Interstate and Foreign Commerce directing that common
principles of causation should govern the Superfund liability
scheme. At that time, the Committee on Interstate and Foreign
Commerce recommended:
The Committee intends that the usual common law
principles of causation, including those of proximate
causation, should govern the determination of whether a
defendant ``caused or contributed'' to a release or
threatened release. Whether a person caused or
contributed to a release is a factual inquiry to be
determined with reference to the particular
circumstances of the case. Thus, for instance, the mere
existence of a generator's or transporter's waste in a
site with respect to which cleanup costs are incurred
would not, in and of itself, result in liability. * * *
The Committee intends that for liability to attach
under this section, the plaintiff must demonstrate a
causal or contributory nexus between the acts of the
defendant and the conditions which necessitated the
response action. (H. Rpt. 96-1016, 96th Cong., 2nd
Sess., pt. 1, at 33-34 (1980))
However, the enacted liability scheme adopted the Senate
approach, eliminating the requirement for proximate causation.
In hindsight, this decision paved the way for Superfund to be
one of the most costly and litigious Federal environmental
statutes ever devised.
Because Superfund's liability scheme is strict, joint and
several, to hold someone liable for cleanup costs, all that the
government must show is that a person falls in one of the
categories of liable parties under Superfund (owner, operator,
generator, or transporter) at a facility at which there has
been a release of hazardous substances. When two or more
persons acting independently caused a distinct or single harm
for which there is a reasonable basis for division according to
the contribution of each, each is subject to liability only for
the portion of the total harm that he had himself caused.
CERCLA provides EPA authority to either fund a cleanup
under section 104 or compel potentially responsible parties
(PRPs) to take cleanup action at a site. Either EPA or the PRPs
initially involved in the cleanup can use the provisions of
sections 107 and 113 of CERCLA to seek contribution in court
from other PRPs. The definition of PRPs under CERCLA is
sweeping and the liability scheme contains limited protection
for defendants. There is no need to find a party negligent.
There is no need to find that a party caused pollution. There
is no need to find that a party's contribution of waste is a
significant reason for the costs of the cleanup. There is no
statute of limitations related to the activity that triggers
liability. A single party can be held liable for the entire
cost of the cleanup regardless of the amount he or she
contributed. The liability scheme applies retroactively and,
thus, creates liability on parties who had no knowledge that
would have allowed them to alter their actions. Moreover, by
the time Superfund law suits are filed, the original party that
operated the site or generated the waste may no longer exist.
Under these circumstances, courts are often confronted with the
question of whether, and in what situation, inheritors or
purchasers of assets of the original party should bear costs
under the Superfund retroactive liability scheme.
Ultimately, if a party is an owner or operator of a
facility placed on the National Priorities List (NPL), that
party is potentially liable if hazardous substances have been
released on the property. If a party is a generator or
transporter, that party is potentially liable if they sent any
amount of material that meets the definition of a hazardous
substance to a facility, and most courts have not required a
causal link between that party's activities and the harm
alleged. Examples of parties that have been swept into this
liability web are small businesses and municipalities; parties
that disposed of ordinary garbage; parties that sent material
to recycling facilities; prospective purchasers of property;
property owners who own land under which contaminants have
migrated; parties that only contributed small quantities of
waste to a site; charitable organizations; and cleanup
contractors.
The net result has been 19 years of controversy and waves
of litigation. A typical situation involves EPA suing a smaller
number of PRPs to begin cleanup activities. Those PRPs then sue
numerous other PRPs, regardless of size or significance to the
cleanup, for contribution of funds. Many PRPs can then sue
insurance companies over coverage for retroactive liability.
This scenario often occurs at both the Federal and State
levels.
2. EPA enforcement policy and insufficient administrative reform
In 1989, to advance its goal of increasing the number of
cleanups conducted by private parties, EPA adopted an
``enforcement first'' policy. Under this policy, EPA, through
an agreement or an order, seeks to compel private parties to
conduct cleanups. This policy has resulted in more PRP-lead
cleanups, but has also resulted in a great deal of contentious
third-party litigation. EPA has tried to reduce third-party
litigation by providing separate de minimis settlements for
parties who contributed one percent or less of the volume of
waste to a site. According to EPA's Superfund Reforms Annual
Report for FY 1998, EPA has completed settlements with 18,000
de minimis parties, of which 12,000 received settlements in the
past 6 years. However, this administrative reform has not
addressed the concerns of many small parties with the Superfund
program. Under this reform, EPA contacts de minimis parties
directly, informs them of their potential liability, and offers
them a settlement. These small parties are often confused by
the Superfund statute and process and do not understand why
they may be responsible for cleanup costs. At a hearing in
August 1999 before the Subcommittee on Finance and Hazardous
Materials, Mike Nobis of JK Creative Printing, testifying on
behalf of the National Federation of Independent Business,
described this process as an ``ongoing nightmare for small
businesses, their families, friends, and neighbors.''
3. Testimony citing the problems with the superfund liability scheme
Since 1994, dozens of witnesses, including EPA officials,
governors, mayors, lawyers, and small businesses have testified
that the liability scheme is fundamentally unfair, excessively
litigious, and delays cleanup. In 1997, Barbara Williams, a
restaurant owner from Gettysburg, Pennsylvania, testified
before the Subcommittee on Finance and Hazardous Materials
about a claim for over $76,000 in response costs against her
business for disposal of ``chicken bones.'' Her case involved
the Keystone landfill, which was placed on the NPL in 1987 and
spawned literally hundreds of third-party lawsuits that brought
over 700 defendants into the Superfund liability web with a
huge portion of costs going to lawyers hired to defend the
parties. In response to these concerns, EPA has cited
administrative reforms, such as its use of the de minimis
settlement policy, as a panacea for small contributors.
However, the record of the Subcommittee on Finance and
Hazardous Materials clearly indicates that the nightmare faced
by small businesses continues to this day and that legislative
reform remains sorely needed:
For my company, it started on February 10, 1999, when
we received a letter in the mail from the EPA that
stated 6 large local corporations and the city were
looking to recover some of their cost for the cleanup
of our local landfill. * * * When I read the letter, I
felt sick. For me and the 148 other companies that
received the letter, it was unexpected and without
warning. At first, we had no idea of what the letter
was telling us. It was asking us, as small companies,
to ``contribute'' 3.1 million dollars. * * * As I read
through the list, I saw Catholic grade schools, our
local university, bowling allies, restaurants, small
Mom and Pop trash haulers, furniture stores and our
local McDonald's listed to pay. Most of the companies
named only generated waste like plain office trash or
food scraps. * * * EPA and the 6 major PRP's weren't
concerned about the waste that was sent to the landfill
as being hazardous. The make-up of what we sent there
was irrelevant. It was the volume that we sent to the
landfill that they cared about, even if the trash was
not dangerous. They knew many of us didn't send
hazardous waste and they knew we couldn't afford to
fight them. We became an easy money source for them
because of the real threat of litigation by the major
PRP's. And when you think about it, what small company
can take on 6 large corporations and the EPA alone and
win? If we didn't accept the settlement offer, the
major PRP's would sue us for the entire cleanup cost.
We were stuck. Pay up or be wiped out. The attorney for
the EPA admitted that it would cost us more to fight
them in court to prove we didn't haul hazardous waste
to the landfill than to just go ahead and settle. It
all came down to money * * * and they had more than we
did.
(Mike Nobis, JK Creative Printers, September 22, 1999,
testifying before the Subcommittee on Finance and Hazardous
Materials.)
C. Disincentives to Brownfields Redevelopment and State Response
Programs
1. Uncertainty and lack of finality from CERCLA and Solid Waste
Disposal Act enforcement and liability schemes
Under CERCLA, the Federal government oversees thousands of
short-term cleanups and over a thousand long-term cleanups. In
addition, CERCLA liability provisions can apply to hundreds of
thousands of site cleanups that are not on the NPL list,
including those labeled voluntary cleanups, brownfields
cleanups, and other cleanups where State governments provide
direct oversight as long as the cases involve actual or
threatened releases of hazardous substances.
Under CERCLA, a number of different parties can compel
cleanup, spend money, or require contribution at a broad
universe of sites. First, the Federal government is authorized
to spend up to $2 million from the Superfund trust fund to
conduct removals at a given site for up to 12 months. Second,
the Federal government is authorized to spend money from the
Superfund trust fund on long-term remedial actions at NPL
sites. Third, the Federal government is authorized to compel
cleanups by issuing orders at any site under the emergency
authorities authorized by CERCLA section 106. Fourth, Federal,
State, and tribal ``trustees'' are authorized to compel
restoration of natural resources by proving liability and
damages in Federal court at any site where there are hazardous
substances and natural resource damages. Finally, the Federal
government, States or ``potentially responsible parties'' are
authorized to seek contribution from other responsible parties
under CERCLA in Federal court at any site where there are
hazardous substances.
In addition to Federal authority under CERCLA, the Solid
Waste Disposal Act (SWDA, 42 U.S.C. Sec. 6901 et seq.) provides
a citizen with the right to seek to compel a cleanup under
authority of section 7002(a)(1)(B), and EPA can compel a
cleanup under section 7003 (42 U.S.C. Sec. 6972(a)(1)(B), 42
U.S.C. Sec. 6973). These Federal causes of action are in
addition to other causes of action that may be available under
State statutory and common law. The net result can mean great
legal uncertainty for the status of cleanups. For example, an
action approved by a State agency is still subject to potential
causes of action by Federal agencies under CERCLA and SWDA.
Sites with approved remedial actions may also be subject to
subsequent litigation by trustees under the natural resource
damages provisions of section 107 (a) and (f) of CERCLA (42
U.S.C. Sec. 9607 (a), (f)). Furthermore, PRPs can initiate
contribution actions in any of these situations.
According to a survey conducted by the U.S. Conference of
Mayors in April 1999, 180 cities that were assessed have over
19,000 brownfields sites representing more than 178,000 acres
(Hearing on Legislation to Improve the Comprehensive
Environmental Response, Compensation, and Liability Act before
the Subcommittee on Finance and Hazardous Materials, 106th
Cong., 1st Sess., (1999) (Statement of Mr. Paul Helmke, Mayor
of Fort Wayne, Indiana)). Many witnesses have testified that
sites are not being cleaned up because people are afraid that
cleaning up these sites and redeveloping them will subject them
to increased risk of Superfund liability. Moreover, potential
agreements with State authorities do not provide sufficient
certainty and finality to eliminate the potential for second
guessing of cleanup or liability determinations, where action
under Federal laws would override the decisions of State
authorities. As a result, developers have been reluctant to
invest in brownfields, where they can choose to initiate new
projects in areas that have no industrial past. Selection of
these ``greenfields'' has come under recent criticism as a
driver of ``urban sprawl.''
Prescriptive remedy selection requirements have also been a
hindrance in brownfields and voluntary cleanups. These
requirements operate through the CERCLA liability and
enforcement scheme. Section 121(a) (42 U.S.C. Sec. 9621(a)) on
``Cleanup Standards'' states, in relevant part, that:
The President shall select appropriate remedial
actions determined to be necessary to be carried out
under section 104 or secured under section 106.
Section 120(a)(2) of CERCLA states that:
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 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 same extent as such guidelines,
rules, regulations and criteria are applicable to other
facilities. (42 U.S.C. Sec. 9620(a)(2))
Accordingly, the section 121 remedy selection requirements
apply not only to sites on the NPL, but also to any remedial
actions compelled by orders under CERCLA section 106 and to
Federal facilities cleaned up under other Federal authority. In
addition, courts have held that contribution actions under
section 113 are subject to restrictions posed under the
liability provisions of section 107. Section 107(a)(4)(A) makes
clear that parties are liable for ``all cost 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'' (42 U.S.C. Sec. 9607(a)(4)(A)).
The remedy selection criteria can apply where the Federal
government is financing cleanups, where PRPs are compelled to
undertake remedial actions under CERCLA, or where private party
cleanups or the government are seeking compensation through
contribution suits for remedial actions.
2. Selected congressional testimony citing the problems with Federal
law hindering brownfields and State response programs
We know that Superfund's liability regime too often
drives private sector investors from brownfields to
more pristine locations. We know these rules punish
innocent parties, fueling a development cycle that is
unsustainable. We know that current law must be
reformed to undo the bias toward new land resources
over recycling land that is already urbanized or
developed. Mitigating the effects of this nearly
twenty-year Superfund policy will require actions on
several fronts. * * * We have learned that liability
under Superfund is their dominant concern. Despite
progress in securing ``comfort letters'' at many sites,
lender liability reforms and growing confidence in
state program efforts, there is real anxiety, and we
would wish otherwise, among bankers and other lenders
on these issues. The specter of Superfund liability
severely limits their ability to increase the flow of
private capital into these projects. * * * Mayors have
been very consistent in urging more attention in
federal policies to a ``one-stop'' brownfields
regulatory program at the state level, where states,
which are vested with delegated authority, can provide
more coordinated and integrated programs. * * * I would
note that H.R. 2580 provides authority for RCRA waivers
to allow states to integrate this law's permit
requirements with cleanups of brownfields. I understand
that this provision does not diminish or alter RCRA
requirements, but is intended to give states some
flexibility in delivering a more responsive and
coordinated regulatory program in addressing
brownfields. This or some variant of this provision
would be very helpful to those of us at the local level
who often find ourselves confronting increased
complexity at specific sites as we work to return them
to productive use.
(The Honorable Paul Helmke, Mayor of Fort Wayne, Indiana,
on behalf of the U.S. Conference of Mayors, August 4, 1999,
testifying before the Subcommittee on Finance and Hazardous
Materials.)
Legal authority for qualified states to play the
primary role in liability clarification is critical to
the effective redevelopment of local brownfields sites.
A state lead will increase local flexibility and
provide confidence to developers, lenders, prospective
purchasers and other parties that brownfields sites can
be revitalized without the specter of Superfund
liability or the involvement of federal enforcement
personnel. Parties developing brownfields want to know
that the state can provide the last word on liability,
and that there will be only one policeman, barring
exceptional circumstances.
(Donald J. Stypula, Manager, Environmental Affairs,
National Association of Local Government Environmental
Professionals, August 4, 1999, testifying before the
Subcommittee on Finance and Hazardous Materials.)
H.R. 2580 succinctly mandates that U.S. EPA must
receive a Governor's concurrence prior to listing a
facility on the National Priorities List. We support
this provision as it is clear, unambiguous and
satisfies our goal of clarifying the role of the
federal Superfund program in the future. * * * It is
our belief that we can no longer afford to foster the
illusion that State-authorized cleanups may somehow not
be adequate to satisfy federal requirements. The
potential for U.S. EPA overfile and for third party
lawsuits under CERCLA is beginning to cause many owners
of potential brownfields sites to simply ``mothball''
the properties. * * * H.R. 2580 satisfies the goal of
clarifying which governmental entity is and should be
responsible for deciding when a cleanup is complete and
when a party is released from liability.
(Claudia Kerbawy, testifying on behalf of the National
Governors Association and the Association of State and
Territorial Waste Management Officials, August 4, 1999, before
the Subcommittee on Finance and Hazardous Materials.)
I am here to tell you that, in actuality, the true
Brownfields market has not kept pace with expectations.
Why? We have been asking our clients just that. Our
clients' responses are fairly unanimous. They fear that
EPA will ``second guess'' Brownfield cleanups, and
require costly site rework at a later date to reach a
different site cleanup standard so they ``hold onto''
lightly contaminated parcels instead of turning them
over to beneficial reuse. Moreover, there remains
potential down-stream liability associated with that
reuse which further retards the process. These concerns
result in owners of such properties not undertaking
redevelopment efforts at viable Brownfields sites.
While EPA has indicated a willingness to enter into, on
a case-by-case basis, prospective purchaser agreements
at Brownfields sites, the process to enter into those
agreements is quite time consuming and there is no
certainty in the end that EPA will agree to a
prospective purchaser agreement.
H.R. 2580's provisions in Section 3 provide the
finality in Brownfields decisions that are truly needed
in this market, and the actual cleanups, are to
accelerate. * * * This provision is very important to
spurring increased voluntary cleanup actions at
Brownfields sites across the country and reducing
possible risks to nearby populations that are currently
not addressed, expressly because of the fear of federal
liability.
The permit waiver for on-site response actions that
is contained in H.R. 2580 would remove the barriers to
actual on-site cleanup and significantly increase the
pace of Brownfields cleanups.
(Mr. Jonathan Curtis, President, The Environmental Business
Action Coalition, August 4, 1999, testifying before the
Subcommittee on Finance and Hazardous Materials.)
3. Insufficient administrative reforms
To address concerns of uncertainty and lack of finality,
EPA created a policy of entering into ``prospective purchaser
agreements'' with persons who acquire property with existing
contamination, where the new owner did not cause or contribute
to that contamination. These agreements provide a ``covenant
not to sue'' from EPA to the new purchaser for existing
contamination. However, EPA has finalized only 90 of these
agreements, which must be approved by the Department of
Justice. Moreover, these agreements do not protect new property
owners from third party litigation. As a result, prospective
purchaser agreements have not proven to be a sufficient
solution for encouraging the redevelopment of over 500,000
brownfields sites. Moreover, prospective purchaser agreements
do not address the problem identified by the U.S. Conference of
Mayors regarding the ``moth-balling'' of contaminated property.
Many owners of abandoned or underutilized industrial facilities
are unwilling to even investigate their property for fear of
open-ended CERCLA liability. As a result, former industrial
property remains idle, and possibly contaminated.
To provide additional incentives for brownfields
redevelopment, in 1995, EPA began providing grants to local
governments for brownfields site assessments. These grants are
intended for use in investigating property for potential
contamination and facilitating its reuse. Since 1997, EPA has
also provided grants for establishing revolving loan funds to
fund site cleanup. While EPA clearly has the authority to
provide funding for site investigations, EPA has relied upon
less specific authority in providing Superfund trust fund
dollars for cleanup ofbrownfields sites. Moreover, using funds
from the Superfund trust fund requires a recipient of a cleanup grant
to follow all the rules and regulations that apply to Federal cleanups
under Superfund. These rules prohibit the party from using the funding
for removal of asbestos, lead paint, or petroleum products. These
constraints greatly reduce the usefulness of this funding.
D. Unrealistic Risk Assessment and Remedy Selection
1. Problems with Superfund risk assessment practices and application of
certain CERCLA remedy selection provisions
There are a number of engineering and institutional actions
that can protect human health and the environment and are cost-
effective. The specific mix of engineering and institutional
actions that are appropriate vary based upon site-specific
circumstances. Congress received substantial testimony that the
best remedial decision starts with a realistic, unbiased, and
scientific assessment of the risk at the site, based on the
current and reasonably anticipated uses of land, water and
other resources.
Moreover, national assumptions about the best mix of
engineering and institutional actions too often make little
sense in a site-specific context. Thus, the national preference
for permanence and treatment in current CERCLA section 121(b)
provides insufficient guidance that does not account for site-
specific issues, such as practicality, current and reasonably
anticipated uses of land, water and other resources, increases
in risk to the community, workers, or the environment from
treatment options, reasonableness of costs, or the views of the
community. Practicality and reasonably anticipated uses will
vary at sites. A site that is likely to be an industrial site
should not be treated as though it is a residential area. The
Hanford nuclear facility should not be treated the same as a
municipal landfill. Furthermore, incineration, construction,
and traffic at a site may increase risks to the community,
workers, or the environment. Specific engineering options may
create more risks than they address. Thus, the preference for
treatment and permanence in section 121(b) should not require
``treatment for treatment sake''. Site-specific issues such as
practicality; current and reasonably anticipated uses;
substitution risks created by treatment options; and whether
the community supports the treatment option selected at the
site are factors that should be considered.
Similarly, other provisions in section 121(d) have proven
to be a bureaucratic exercise which may or may not be useful to
meet the standards in section 121(a). The result has been a
disconnect between the national criteria and the need for
streamlined, site-specific risk management.
2. Selected congressional testimony supporting legislative changes to
Superfund risk practices and certain remedy selection
provisions
The Congressional record identifying problems with Federal
remedy selection under CERCLA is extensive and covers hearings
dating back four Congresses. The following testimony, on behalf
of cleanup contractors, attests that these long-standing
concerns persist:
I am here to tell you that, as a representative of
the professional community that recommends and
implements cleanup actions, more flexibility in the law
is needed. The present law is overly prescriptive and
contains too little opportunity to accelerate cleanups
or initiate rework within the Superfund ``process.'' In
addition, work is often performed for the sake of
``producing evidence for litigation'' instead of just
to get on with cleanup. We are pleased that H.R. 2580,
Congressman Greenwood's Land Recycling Act of 1999,
also contains some remedy reform provisions. These
provisions include: Consideration of future uses of
land in remedy selection decisions. Addressing the
preference for treatment and permanent solutions.
Deleting the ``RA'' from ``ARARs,'' meaning that only
applicable requirements will apply. (Note: This is an
important change because it is often difficult to
determine what is also ``relevant and appropriate''
cleanup requirements). Making risk assessments more
realistic and based on scientific evidence and site-
specific information. We fully support these well-
crafted provisions.
(Mr. Jeremiah Jackson, Ph.D., PE, Environmental Business
Action Coalition, in testimony before the Subcommittee on
Finance and Hazardous Materials, September 22, 1999.)
Work on reforming remedy selection provisions has included
numerous stakeholders. The provisions of H.R. 2580, as reported
out of this Committee, are a subset of prior legislative
efforts, particularly those from last Congress. The following
statements support concepts that were incorporated into H.R.
2580:
* * * ASTSWMO supports the determination of future
land use prior to the calculation of site specific risk
assessments and the selection of remedial alternatives.
Determining the future land use up-front is a reform
which has been established in most State programs and
is a common sense measure * * *
* * * State Waste Managers concur with the process
outlined in this title for site-specific risk
assessments. The great diversity of the United States
in terms of geography, climate and population makes, in
our opinion, the application of uniform national
cleanup standards impractical. The substantial
variations in temperature, precipitation, soils and a
host of other factors from region to region and State
to State preclude the development of standards which
will ensure that the cleanup levels required for a
particular site are commensurate with the level of risk
actually posed at the site. Standards which are
protective for all sites will too often result in
overly conservative levels at many sites, prolonging
debate and increasing the cost of remediation with no
concomitant increase in protection * * *
(Letter from Howard Reitman, President, Association of
State and Territorial Solid Waste Management Officials, to
Subcommittee on Finance and Hazardous Materials Chairman
Michael G. Oxley, November 17, 1997.)
* * * The provisions provide useful direction for
identifying reasonably anticipated future resource uses
and for performing objective, science-based assessments
and characterizations of health and environmental risks
* * *
(Commission on Risk Assessment and Risk Management, in
Memorandum to Commerce Committee majority staff, August 29,
1997.)
The first and most important strength of the draft is
the requirement that scientific information about risk
play a central role in remedial decisions as well as
communication with the public * * * The science-based
approach to risk assessment will enhance public health
by shifting remedial resources away from ``unrealistic
and insignificant'' risk toward important public health
problems. It is precisely this change in orientation
that is necessary to enhance the effectiveness and
credibility of the Superfund program * * * [T]he
provisions on ``Presentation of Risk Information'' * *
* are extremely useful because they will provide
affected communities with a better understanding of the
nature and magnitude of the risks associated with a
site * * *
(John Graham, Director, Harvard Center for Risk Analysis,
in letter to Committee on Commerce Chairman Tom Bliley and
Subcommittee on Finance and Hazardous Materials Chairman
Michael G. Oxley, October 1, 1997.)
3. Reforms to the cleanup program
In recent years, in response to criticism over excessive
remedy costs, EPA policies have allowed remedies to be tailored
to address expected future uses. In many instances, this has
resulted in less expensive cleanup options not involving
treatment. Currently, about one-third of Superfund cleanups
involve active treatment of the hazardous substances at the
site. Both EPA Administrator Carol M. Browner and EPA Assistant
Administrator Timothy Fields have testified that the cost of
cleaning up a Superfund site has been reduced by approximately
20 percent, on average, as a result of EPA's administrative
reforms. EPA's Superfund Reforms Annual Report for FY 1998
indicates that by updating older remedies and by providing for
EPA Headquarters review of high cost remedies, EPA has been
able to save over $1 billion in estimated cleanup costs. These
cost savings are particularly significant because EPA has
determined that, in many instances, experience with the program
indicates that lower cost remedies may provide long term
protection of human health and the environment, eliminating the
need for many high cost remedies that had been selected before
EPA's remedy reforms were put in place.
E. Status and Future of the National Priorities List
As of September 1999, the NPL consisted of 1223 facilities.
In addition, 58 facilities have been proposed and are awaiting
final listing, for a total of 1281 proposed and final
facilities. Over the 19-year period of the Superfund program,
189 sites have been deleted from the NPL (180 because they were
cleaned up and 9 because they were deferred to other cleanup
programs). At least 50 of the deleted sites required no
remedial action. Of the sites currentlyon the NPL, 443 have
completed construction of the remedy. In addition, 459 sites on the NPL
have cleanup construction underway, and an additional 214 have had some
on-site activity, in the form of a removal action.
The number of sites that are entering the NPL pipeline has
been trending downward in recent years and the Committee
expects that trend to continue. In November 1998, the General
Accounting Office (GAO) reported that, of the 3036 sites
currently in EPA's database of sites where there has been a
release of a hazardous substance (CERCLIS), EPA and State
officials collectively anticipated that only 232 sites could be
placed on the NPL in the future. EPA officials identified 106
sites that they believed might be placed on the list, State
officials identified another 100 sites, and both EPA and State
officials agreed that 26 sites might be potential National
Priority List candidates. (U.S. General Accounting Office,
Hazardous Waste: Information on Potential Superfund Sites, Nov.
1998, at 2-3).
F. Conclusion
H.R. 2580 will help assure State finality in order to
encourage brownfields redevelopment, and insulate cleanup
volunteers, brownfields redevelopers, and States, where it is
appropriate, from the risks associated with CERCLA liability.
The bill is intended to facilitate protective and realistic
cleanups that consider reasonably anticipated uses of land,
water and other resources; risk to the community and workers;
and sound science. The bill further provides grants for site
assessment and cleanup revolving loan funds. In addition, H.R.
2580 addresses Superfund liability through an allocation
process, as well as by providing liability defenses and
exemptions for innocent landowners (including brownfields
redevelopers), small businesses, parties arranging for
recycling, and persons who send ordinary garbage to Superfund
sites. The Committee expects these reforms to reduce litigation
and expedite cleanup, thereby increasing the protection of
human health and the environment.
Hearings
The Subcommittee on Finance and Hazardous Materials held a
hearing on the Status of the Federal Superfund Program on March
23, 1999. The Subcommittee received testimony from: The
Honorable Timothy Fields, Jr., Assistant Administrator, Office
of Solid Waste and Emergency Response, U.S. Environmental
Protection Agency; Mr. Peter F. Guerrero, Director,
Environmental Protection Issues, General Accounting Office; and
Ms. Claudia Kerbawy, Chair, Federal Superfund Focus Group,
Association of State and Territorial Solid Waste Management
Officials.
The Subcommittee on Finance and Hazardous Materials held a
second hearing August 4, 1999, on Legislation to Improve the
Comprehensive Environmental Response, Compensation and
Liability Act: Provisions in H.R. 1300, H.R. 1750, and H.R.
2580. The Subcommittee received testimony from: The Honorable
Timothy Fields, Jr., Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency; The Honorable Paul Helmke, Mayor of Fort Wayne,
Indiana, representing the U.S. Conference of Mayors; Mr. Donald
J. Stypula, Manager of Environmental Affairs, Michigan
Municipal League, representing the National Association of
Local Government Environmental Professionals; Ms. Claudia
Kerbawy, Chair, Federal Superfund Focus Group, Association of
State and Territorial Solid Waste Management Officials; Ms.
Teresa Mills, representing the Buckeye Environmental Network;
Mr. Jonathan G. Curtis, President, Environmental Business
Action Coalition; Ms. Karen Florini, Senior Attorney,
Environmental Defense Fund; and Mr. Gary Garczynski, Treasurer,
National Association of Home Builders.
The Subcommittee on Finance and Hazardous Materials held a
third hearing on September 22, 1999, on Legislation to Improve
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA): Provisions in H.R. 1300 and H.R. 2580.
The Subcommittee received testimony from: The Honorable Timothy
Fields, Jr., Assistant Administrator, Office of Solid Waste and
Emergency Response, U.S. Environmental Protection Agency; Mr.
Chris Jeffers, City Manager, Monterey Park, representing the
National Association of Counties; Mr. Mike Nobis, JK Creative
Printer, representing the National Federation of Independent
Business; Mr. Gordon Johnson, Deputy Bureau Chief, Office of
the Attorney General, State of New York, representing the
National Association of Attorneys General; Ms. Jane Williams,
Chair, Waste Committee; and Mr. Jeremiah D. Jackson, Ph.D.,
President-Elect, Environmental Business Action Coalition.
Committee Consideration
On September 29, 1999, the Subcommittee on Finance and
Hazardous Materials met in open markup session and approved
H.R. 2580, the Land Recycling Act of 1999, for Full Committee
consideration, amended, by a rollcall vote of 17 yeas to 12
nays. On October 13, 1999, the Full Committee met in open
markup session and ordered H.R. 2580 reported to the House,
amended, by a roll call vote of 30 yeas to 21 nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House requires
the Committee to list the record votes on the motion to report
legislation and amendments thereto. The following are the
record votes on the motion to report H.R. 2580 and on
amendments offered to the measure, including the names of those
Members voting for and against.
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Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held legislative and
oversight hearings and made findings that are reflected in this
report.
Committee on Government Reform Oversight Findings
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, no oversight findings have been
submitted to the Committee by the Committee on Government
Reform.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
2580, the Land Recycling Act of 1999, would result in new
direct spending in the amounts specified in the cost estimate
prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 29, 1999.
Hon. Tom Bliley,
Chairman, Committee on Commerce, House of Representatives, Washington,
DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2580, the Land
Recycling Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts for federal
costs are Susanne S. Mehlman and Perry Beider. The contact for
the state and local impact is Shelley Finlayson and the
contacts for the private-sector impact are Patrice Gordon and
Perry Beider.
Sincerely,
Dan L. Crippen, Director.
Enclosure.
H.R. 2580--Land Recycling Act of 1999
Summary: H.R. 2580 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.
CBO estimates that the bill would authorize appropriations
of $7.6 billion over the 2000-2004 period for the Superfund
program, including $1.4 billion already appropriated for 2000.
H.R. 2580 would establish a new method of determining the
extent of liability of potentially responsible parties (PRPs)
at Superfund sites, and a portion of this liability would
usually be assigned to EPA.
The bill also would provide direct spending authority of
$1.25 billion over the 2000-2004 period for EPA to compensate
certain private parties for completing cleanup activities for
which they are not entirely liable and where some amount of
liability has been assigned to EPA. Finally, enacting the bill
would result in a decrease in the amount of money recovered by
EPA from private parties who remain liable for cleanup expenses
incurred by the agency. We estimate that these forgone
recoveries would total $188 million over the 2000-2004 period.
Overall, CBO estimates that enacting H.R. 2580 would increase
direct spending by about $1.4 billion over the 2000-2004
period.
H.R. 2580 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that
the cost of complying with these mandates would not be
significant and would not exceed the threshold established by
the act ($50 million in 1996, adjusted annually for inflation).
The bill would have other effects on state, local, and tribal
governments that do not result from mandates. Some of these
effects might be increased costs, but most would be benefits.
H.R. 2580 also would impose private-sector mandates as
defined in UMRA by setting a temporary moratorium on certain
lawsuits under CERCLA and precluding certain other lawsuits.
CBO estimates that the direct costs of complying with those
mandates would be well below the statutory threshold specified
in UMRA ($100 million in 1996, adjusted annually for
inflation). Overall, the bill would tend to lower the costs to
the private sector of cleaning up certain Superfund sites under
CERCLA.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2580 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
Basis of Estimate
For purposes of this estimate, CBO assumes that H.R. 2580
will be enacted early in fiscal year 2000, and that all funds
authorized by the bill will be appropriated. Estimated outlays
are based on the historical spending patterns of the Superfund
program.
Spending subject to appropriation
Superfund Program.--CBO estimates that implementing H.R.
2580 would require the appropriation of $6.2 billion over the
2000-2004 period for the Superfund program and related grant
programs, in addition to $1.4 billion already appropriated for
2000. In addition to the existing appropriation for 2000, title
II would authorize appropriations totaling $5.9 billion over
the 2000-2004 period for EPA activities in support of the
Superfund program and $1 million in 2000 for an independent
analysis of the projected 10-year costs to EPA of implementing
the Superfund program. Title I would authorize the
appropriation of such funds as may be necessary for grants to
be used for site characterization, assessment, and cleanup
actions at Brownfield facilities. Brownfield facilities are
properties where thepresence or potential presence of a
hazardous substance complicates the expansion or redevelopment of the
property. Based on information from EPA, we estimate that implementing
this provision would require the appropriation of $75 million annually
over the next five years. Some of these funds could be used by states
and local governments to establish revolving loan funds to provide
money for eligible work at brownfield facilities.
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By fiscal year, in millions of dollars
-------------------------------------------------
2000 2001 2002 2003 2004
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Superfund spending under current law:
Budget authority \1\...................................... 1,400 0 0 0 0
Estimated outlays......................................... 1,426 1,028 508 217 73
Proposed changes:
Estimated authorization level............................. 176 1,575 1,575 1,475 1,425
Estimated outlays......................................... 48 471 995 1,260 1,358
Superfund spending under H.R. 2580:
Estimated authorization level............................. 1,576 1,575 1,575 1,475 1,425
Estimated outlays......................................... 1,474 1,499 1,503 1,477 1,431
CHANGES IN DIRECT SPENDING
Reimbursement for Superfund liability:
Budget authority.......................................... 250 250 250 250 250
Estimated outlays......................................... 60 400 270 260 225
Changes to Superfund recoveries:
Estimated budget authority................................ 15 45 45 45 38
Estimated outlays......................................... 15 45 45 45 38
Total changes in direct spending:
Estimated budget authority................................ 265 295 295 295 288
Estimated outlays......................................... 75 445 315 305 293
----------------------------------------------------------------------------------------------------------------
\1\ The 2000 level is the amount appropriated for that year.
Superfund Cleanup Costs at Federal Sites.--H.R. 2580 would
amend the procedures used to select appropriate cleanup
solutions (known as remedies) at each Superfund site. Title I
would require EPA to consider future land use at a site, and
change the goals and criteria EPA uses in determining cleanup
levels. These changes in the remedy selection procedures could
change the cost of future cleanup projects at federal
facilities. However, any savings would be small over the next
five years because the changes would not significantly affect
spending at sites where mediation has begun.
Section 303 would explicitly waive any federal immunity
from administrative orders, or civil or administrative fines or
penalties assessed under CERCLA, and would clarify that federal
facilities are subject to reasonable service charges assessed
in connection with a federal or state Superfund program. This
provision may allow states to seek to impose fines and
penalties against the federal government under CERCLA. The
Claims, Judgments, and Reliefs Acts account may be available
for payment of fines or penalties, but only if pursuant to a
court settlement or certain Department of Justice settlements.
In the alternative, payments may come from appropriated funds.
Direct spending
Provisions of H.R. 2580 would affect direct spending
primarily by providing $1.3 billion over the 2000-2004 period
to reimburse certain PRPs for some future cleanup costs and for
specified past and ongoing cleanup costs. Such funds could also
be used for other authorized Superfund expenses, depending on
the amounts provided to the program in future appropriations
acts. In addition, enactment of H.R. 2580 would result in a
decrease in the amount of money EPA is able to recover from
PRPs who are currently liable for cleanup expenses.
Reimbursement for Superfund Share of Liability.--Title II
would provide $250 million annually over the 2000-2004 period
to reimburse private parties for certain expenditures made
during a Superfund cleanup project that the bill would make the
responsibility of EPA. When this new program is fully
implemented, we estimate that EPA would spend, on average, $135
million annually to reimburse PRPs for cleanup projects that
have not yet begun, and $100 million annually to reimburse PRPs
for past and ongoing cleanup costs. Although CBO estimates that
total claims for reimbursement would be slightly below the $1.3
billion appropriated over the 2000-2004 period, if claims are
made unevenly over time, the amount pending at one time could
exceed the $250 million provided in that year. In this case,
the payment of reimbursement claims could be delayed until
funds are available.
Title III would make several changes to current law
concerning Superfund liabilities of private parties and the
procedures for allocating cleanup responsibilities equitably
among the multiple PRPs (site owners and operators, and off-
site parties that contributed hazardous substances) involved in
a cleanup project. For new cleanup projects that meet certain
requirements, section 308 would define how an independent
``allocator,'' chosen by EPA and the PRPs at a site, would
determine the share of cleanup costs that each PRP must
contribute and what share of the liability belongs to EPA (if
any). Under H.R. 2580, EPA's liability at a Superfund site
would consist primarily of two components: any liability
assigned to defunct or insolvent PRPs and any liability that is
eliminated, limited, or reduced by the provisions of the bill.
The legislation would eliminate, limit, or reduce the cleanup
liability for some PRPs--notably small businesses, municipal
governments that owned or reported landfills, and generators
and transporters of municipal solid waste or recyclable
materials. The difference between the cleanup cost attributed
to a private party by the allocator and a smaller amount
actually paid by the PRP--because of a liability exemption,
reduction, or limitation resulting from enactment of the bill--
would become the responsibility of EPA.
Liability for Future Costs.--Based on the characteristics
of sites currently in the Superfund program, CBO estimates that
approximately one-third of the costs of new cleanup projects
would be allocated to the Superfund. Assuming that the pace of
cleanups conducted by PRPs continues at current rates,
reimbursements to PRPs from the Superfund for cleanup projects
would be, on average, $135 million annually. Such spending
would come from the annual direct spending authority included
in title II of the bill.
Liability for Past Costs.--Under H.R. 2580, EPA also would
be liable for reimbursing some PRPs for certain cleanup
projects that are ongoing or have already been completed. Under
current law, PRPs that pay for Superfund cleanup costs can seek
reimbursement for their expenses from other PRPs involved with
the same site. H.R. 2580 would make PRPs that have incurred
such costs eligible for reimbursement from EPA for the share of
costs attributable to PRPs whose liability would be reduced or
eliminated under the bill. EPA estimates that the total cost of
ongoing and completed cleanups conducted by PRPs is over $13
billion. We estimate that less than one-fifth of the $13
billion is attributable to the relevant PRPs that would be
affected by this bill. Most of these costs--roughly 80 percent,
by EPA's estimate--have already been settled. CBO therefore
estimates that the costs to the Superfund for reimbursement of
past and ongoing cleanups would total nearly $500 million over
the next five years, or an average of about $100 million per
year. Such amounts also would be paid from the bill's direct
spending authority--to the extent that funds are available.
Superfund program.--Section 201 would allow funds provided
in direct spending authority to be used to make up any
shortfall between the annual amounts available to the Superfund
program from appropriations acts and the amounts that H.R. 2580
would authorize to be appropriated for the program. In 2000,
$1.4 billion was appropriated for the Superfund program, but
H.R. 2580 would authorize $1.5 billion. CBO assumes that $100
million out of the $250 million in direct spending authority
provided under the bill in 2000 would betransferred to the
Superfund program to eliminate that shortfall in authorized funding.
Estimated outlays from the transfer would likely be consistent with
historical spending patterns of the Superfund program; therefore, CBO
estimates that outlays in 2000 from the $100 million transfer would be
$25 million. In addition, we estimate that about $35 million out of the
remaining $150 million in direct spending provided in 2000 would be
used to pay reimbursement claims in 2000. Thus, estimated outlays from
the direct spending authority in 2000 would total $60 million. (We
estimate that most of the remaining $190 million of 2000 funding would
be spent over the 2001-2004 period.) Beginning with 2001, CBO estimates
that all of the funds provided in direct spending authority would be
spent each year by EPA either for reimbursement of PRPs or on other
authorized expenses of the Superfund program. The actual amount of
funds (if any) that would be spent for purposes other than
reimbursement of private parties would depend on the amounts provided
to the Superfund program in future appropriations acts.
Superfund Recoveries.--EPA's enforcement program attempts
to recover costs the agency incurs at cleanup projects that are
the responsibility of private parties. Spending of the amounts
recovered is subject to annual appropriation action. Under
current law, CBO estimates such recoveries will gradually
decline from the current level of $300 million annually, and
will average $250 million annually over the next 10 years.
Under H.R. 2580, however, such recoveries would decline further
because the Superfund liability of some PRPs would be
eliminated, limited, or reduced. We expect that enacting the
bill would lead to an average annual decrease in offsetting
receipts to the Treasury of $40 million over the 2000-2004
period.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act 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 budget year
and the succeeding four years are counted.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars
-------------------------------------------------------------------------------
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
Changes in outlays.............. 75 445 315 305 293 38 30 30 30 30
Changes in receipts............. Not applicable
----------------------------------------------------------------------------------------------------------------
estimated impact on state, local, and tribal governments
Intergovernmental mandates
Federal Facilities.--Section 303 of the bill would clarify
that federal facilities are subject to certain charges assessed
in connection with a federal or state Superfund program. This
clarification could increase the number of fines and penalties
imposed and collected by states from the federal government
under CERCLA. At the same time, however, the bill would mandate
how states may use the funds collected from these charges from
federal facilities. States would be required to use all of
these funds for environmental purposes unless that state has a
law in effect on the date of the bill's enactment or a state
constitutional provision that requires the funds to be used in
a different manner. CBO cannot estimate the number or amount of
fines, penalties, and judgments that could result from
enactment of the bill, however, we expect that the requirements
about how to spend these collections would impose no additional
costs on states.
Preemption of State Liability Law.--Section 305 of the bill
would preempt state law by limiting the liability of response
action contractors (RACs) to cases of negligence, gross
negligence, or intentional misconduct in all states that have
not enacted a law specifically addressing the liability of
RACs. (Response action contractors are defined in subsection
119(e) of CERCLA.) CBO expects that this preemption would apply
to a very small number of cases and that states would not be
party to most of them. As a result, CBO estimates the cost to
states of this preemption would be minimal.
Dry Cleaning Solvents.--Section 309 would prohibit states
from requiring dry cleaners to clean up solvents they have
released into the environment (except in the case of drinking
water sources) below certain contaminant levels, unless the
state determines, on a site-by-site basis, that a more
stringent standard is necessary to protect human health or the
environment. States would incur additional costs as a result of
this mandate if they choose to conduct site-by-site analyses of
dry-cleaning establishments to maintain more stringent
standards. CBO cannot precisely estimate the costs states would
incur as a result of this mandate. Based on the low cost of
soil sample analysis, the small likelihood of states
undertaking site-by-site analysis, and the small number of dry-
cleaning sites on the Superfund list, we do not expect that
such costs would be significant.
Other impacts on State, local, and tribal governments
Enacting H.R. 2580 would have additional effects on state,
local, and tribal governments. Some of these effects might
increase costs, but most would provide benefits including:
creating new grant programs; affording states greater
participation and authority over cleanups; and relieving state
and local governments from certain liability under current law.
Potential Costs.--Enacting H.R. 2580 could impose costs on
states by changing the liability of certain potentially
responsible parties. It also could impose costs on local
governments by increasing the costs of complying with water
standards.
Liability Relief for Potentially Responsible Parties.--H.R.
2580 would eliminate, limit, or reduce the cleanup liability
for some PRPs under federal Superfund laws. These changes in
liability, while not preemptions of state law, could make it
more difficult for any states that currently rely on such laws
to recover costs and damages under their own cleanup programs
from parties whose liability would be eliminated or limited by
the bill. These changes also would benefit state, local, and
tribal governments if their Superfund liability would be
reduced or eliminated as discussed below.
Cleanup Standards.--H.R. 2580 would make changes to the
cleanup standards required under the federal Superfund law.
Those changes could increase the costs to public water systems
to comply with current water standards, however, CBO has no
basis for reliably estimating them.
Potential Benefits.--Implementing the bill would benefit
state, local, and tribal governments in a number of ways, as
discussed below.
Liability Relief for State, Local, and Tribal
Governments.--H.R. 2580 would eliminate, limit, or reduce the
cleanup liability for some PRPs, including municipal
governments that own or operate landfills, and generators and
transporters of municipal solid waste or recyclable materials.
The bill also would cap the liability of parties (including
local governments) that generated or transported municipal
solid waste or sewage sludge to a Superfund site that is a
``co-disposal'' landfill (a landfill that also accepted other
wastes and that became a Superfund site). Excluding those
otherwise exempted form liability by the bill, these parties
would have their aggregate liability limited to 10 percent of
cleanup costs. Roughly two-thirds (160) of the approximately
250 co-disposal landfills that are Superfund sites have at
least one municipal owner or operator. In addition, the bill
would create an expedited settlement process for certain
parties, including municipalities, that have a limited ability
to pay.
H.R. 2580 would exempt generators and transporters
(including municipal generators and transporters) from
liability if they only contribute a specified amount of
hazardous material and those materials do not significantly
increase response costs. In addition, the bill would establish
an affirmative defense for innocent parties including
governmental entities that: (1) issues permits or licenses; (2)
acquire property by involuntary transfer or eminent domain: (3)
own and operate sewage treatment works; and (4) own and operate
rights of way.
New Grant Funding.--Title I would create two grant programs
to fund assessment and cleanup of brownfield sites. The program
for inventory and assessment would make grants of up to
$200,000. The cleanup program would make grants of up to $1
million to capitalize revolving loan funds that would make
loans to states, site owners, and site developers for the
cleanup of brownfield sites. States that receive loans would be
required to match at least 50 percent of the federal funds
provided. The bill also would authorize grants for technical
assistance and for developing groundwater protection plans. Any
costs to state, local, or tribal governments to comply with the
grant conditions would be incurred voluntarily.
Expanded State, Local and Tribal Roles.--H.R. 2580 would
amend the current Superfund program to allow greater authority
and participation by the states. Title I would prohibit EPA
from taking action against anyone who has completed a response
action on a non-Superfund site in compliance with the state
laws governing such actions, except under specific
circumstances, EPA would be required to defer listing a
facility as a Superfund site if the state is addressing or will
address the site under a state response program and does not
concur with the listing.
Title III would allow a state that may be responsible for
response costs as part of the state's cost share to participate
in funding allocation. The title also would specify that
federal, state, and local agencies are subject to and eligible
for the benefits of an allocation to the same extent as any
other party including reimbursement when performing parties pay
more than their allocated share. Title IV would increase state,
local, and tribal government input in Superfund-related public
health projects and programs as well as health disclosures to
affected communities.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
H.R. 2580 would impose private-sector mandates as defined
in UMRA by setting a temporary moratorium on certain lawsuits
under CERCLA and precluding certain other lawsuits. CBO
estimates that the direct costs of complying with those
mandates would be well below the statutory threshold specified
in UMRA ($100 million in 1996, adjusted annually for
inflation).
Private-sector mandates
Under current law, the liability standard for a Superfund
site, which can affect who pays to clean it up, 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. The federal government
does not typically seek to assign liability shares to
individual PRPs, preferring instead to reach collective
settlements and allowing settling PRPs to allocate liability
among themselves. 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.
H.R. 2580 would establish a new process for allocating
liability at sites on Superfund's National Priorities List that
meet certain criteria. Under the new process, a neutral
allocator would be hired to determine the liability of
potentially responsible parties for an eligible site. The bill
would impose a private-sector mandate by prohibiting civil
litigation seeking to recover response costs during the period
set aside by the bill to allow the allocator to determine
liability under the new method. Specifically, section 308 would
prohibit anyone from asserting a claim until 150 days after the
release of the allocator's report. In addition, the bill would
stay all pending actions or claims during the same period
unless the court determines that a stay would result in
manifest injustice. CBO expects that the costs of delaying a
claim to recover cleanup costs would be negligible, primarily
because post-moratorium litigation in such cases in likely to
be rare in view of the incentives to settle for the allocated
share under the new process.
Currently, contractors performing cleanups are not liable
under federal law for work they do at Superfund sites
(including CERCLA removal sites), except in cases of
negligence, gross negligence, or willful misconduct. Section
305 would extend response action contractors' protection from
liability to include the same protection under state law,
unless a state has enacted a law determining the liability of
such contractors. The extended protection from liability would
not allow certain liability claims that may be filed under
current law. According to information provided by government
sources, lawsuits alleging liability against response
contractors have been rare and most such actions have been
dismissed or settled out of court for amounts that were not
significant. Therefore, CBO expects that the costs to the
private sector of extending the liability coverage would be
minor.
Generally, provisions of the bill are meant to reduce some
of the burdens of compliance under CERCLA. H.R. 2580 would
direct the federal government to cover the costs attributed to
defunct or insolvent parties, the costs attributed to
responsible parties exempted under the bill, and the balance of
cost left over when allocation shares have been capped or
limited according to the rules specified in the bill.
Consequently, the remaining cleanup costs allocated to the
private sector would probably be lower than under current law.
Other impacts on the private sector
In some cases, private-sector entities who have incurred
cleanup expenses may experience some delays in their efforts to
claim reimbursement from the federal government for the share
of costs attributed to PRPs whose liability would be reduced or
eliminated under the bill. Although CBO estimates that total
claims for reimbursement would be slightly below the $1.3
billion appropriated over the five-year period, if claims are
made unevenly over time, the amount pending at one time could
exceed the $250 million available in that year. Any such delays
might not represent a net burden on the parties seeking
reimbursement, however, the PRPs that would be sued under
current law have limited financial resources, reimbursement in
such cases may be stretched out, reduced, or unavailable.
Previous CBO estimate: On September 23, 1999, CBO
transmitted a cost estimate for H.R. 1300, as reported by the
House Committee on Transportation and Infrastructure on August
5, 1999. Both H.R. 1300 and H.R. 2580 would amend and
reauthorize CERCLA and would authorize appropriations and
provides direct spending authority. However, the bills provide
for different amounts in appropriations and direct spending
over different periods of time. In addition, under both bills,
Superfund recoveries would decreased by the same amount each
year.
Both H.R. 1300 and H.R. 2580 would impose a private-sector
mandate by setting a temporary moratorium on certain lawsuits
during the determination phase of the allocation process and
expand liability protection for response action contractors.
Unlike H.R. 2580, H.R. 1300 also would put a time limit on
certain other lawsuits. Specifically, H.R. 1300 would limit to
a period of six years after the completion of work at a site,
any actions based on negligence to recover claims against
contractors performing cleanups. For both H.R. 1300 and H.R.
2580, CBO estimates that the aggregate direct costs of private-
sector mandates would fall below the statutory threshold
established in UMRA.
Estimate prepared by: Federal costs: Susanne S. Mehlman and
Perry Beider; impact on State, local, and tribal governments:
Shelley Finalyson; and impact on the private sector: Patrice
Gordon and Perry Beider.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides the short title of the legislation,
the ``Land Recycling Act of 1999.''
Section 2. Amendments to Comprehensive Environmental Response,
Compensation, and Liability Act of 1980
This section amends the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
Sec. 9601 et seq.) in the following manner:
Title I--Land Recycling
Section 101. Findings
This section provides findings concerning brownfields,
State voluntary cleanup programs, and Federal barriers to
remediation efforts.
Section 102. Cleanups pursuant to State response programs
This section provides finality and certainty for State
response programs by ensuring that certain Federal authorities
cannot override State remedial decisions except under
exceptional circumstances which are specified in the bill. To
encourage more cleanups at brownfields sites, this section
gives those engaging in cleanups on a voluntary basis increased
certainty about the risk that they face when they step forward
and agree to clean up a site. Under this section, those
engaging in cleanups on a voluntary basis have greater
assurance that their responsibility will be limited to those
actions required by the State cleanup officials, unless one of
the specific exceptions is met.
Prohibition on Enforcement.--Section 102(a) makes clear
that, once triggered by a State response action under a
certified State program under section 102(b), limitations apply
to the uses of authorities under CERCLA and under section
7002(a)(1)(B) and section 7003 of the Solid Waste Disposal Act,
with specified exceptions. This section prevents second
guessing of State remedial and liability decisions. For the
Solid Waste Disposal Act, the limitations apply only to the
cited authorities. Other authorities, such as those designed to
enforce hazardous waste management requirements under the Solid
Waste Disposal Act, are not affected. For example, the
authority to bring a citizen suit under section 7002(a)(1)(A)
of the Solid Waste Disposal Act, and the authorities granted by
section 3008 of the Solid Waste Disposal Act continue to cover
violations of the Solid Waste Disposal Act for the same
universe of sites or activities that they currently cover.
State Requirements.--Limitations on overriding State
actions only apply after a State submits a program to the EPA
Administrator together with certifications that: the particular
program is enacted into law; the State has committed financial
and personnel resources; the program will be protective of
human health and the environment; and the program includes
meaningful opportunities for public participation. This
provision permits the State to tailor its program to prevent
the uncertainty that Federal enforcement provisions would
override State cleanup decisions. This is an option, not a
requirement. A State may desire that certain State program
response actions should be immune from a Federal override. The
Committee anticipates that these programs would be described
with sufficient clarity so that only the classes of response
actions that the State intends receive coverage under this
section. If a State desires no change to the status quo, that
option is available.
The submission and certification by the State triggers the
limitations under this section. The language does not provide
EPA authority to add to any additional regulatory requirements
for States to meet the program requirements.
Limitations on Prohibitions.--Section 102(c) provides five
exceptions to the requirements of section 102(a). First, this
prohibition generally applies only to facilities that are not
on the NPL. EPA retains the discretion to delist a site where a
State response program could better address the site. Second,
the Governor of a State can request that the President take
enforcement action, where appropriate. Third, the prohibition
in section 102(a) does not apply to any facility owned or
operated by a department, agency, or instrumentality of the
United States. Fourth, the prohibition does not apply to the
extent that a response action has been required pursuant to an
administrative order or judicial order or a decree entered into
under a number of specific laws before the commencement of a
State action. Thus, the Federal involvement through orders or
decrees cannot be cut short by a State action. Finally, the
prohibition does not apply to a release or threatened release
for which response actions are immediately required to prevent
or mitigate a public health or environmental emergency and for
which the State is not responding in a timely manner. The
Committee intends that the threshold for the determination by
the President that ``response actions are immediately required
to prevent or mitigate a public health or environmental
emergency'' be higher than the threshold under section 106 of
CERCLA or sections 7002(a)(1)(B) or 7003 of the Solid Waste
Disposal Act for a determination that there ``may be an
imminent and substantial endangerment.''
Prior Actions.--Subsection (d) clarifies that nothing in
this section affects administrative or judicial action
commenced prior to the date of enactment of this section.
Permits and Other Requirements.--Subsection (e), in
conjunction with a submission under subsection (b), allows
State programs to waive the Federal requirements to obtain
Federal permits or revisions for the on-site portion of State
response actions. This provision is similar to the analogous
Federal authority in section 121(e) of CERCLA. States which
have certain Federal program authorizations often issue permits
that satisfy certain requirements under Federal law. Under
subsection (e), it becomes the discretion of the State whether
it wants to maintain all of these State permit requirements or
wants to consolidate administration and procedures through a
process more tailored to remedial efforts. The waiver of the
Federal requirement, thus, allows the States to tailor their
own State permitting regime in the manner potentially more
conducive to their remediation programs without the added
administrative mandate of satisfying the procedural permit
requirements of Federal law. In addition, under subsection (b),
the State has significant flexibility to define and describe
the program or programs that it chooses to make eligible for
both the prohibitions on enforcement and for the permit
waivers. The Committee expects that any such waiver involves
the use of a State document analogous to the Record of Decision
under CERCLA that can be used to consolidate applicable
substantive requirements. The legislation delays application of
this provision for EPA to promulgate regulations on how any
necessary reporting requirements between the State and EPA
should be addressed.
Assistance to States.--Section 102(f) authorizes the
Administrator to provide technical, financial, and other
assistance to establish and enhance State response programs.
Effect of Response.--Section 102(g) makes clear that
performance of a response action pursuant to a State program
under this section shall not constitute an admission of
liability under any Federal, State, or local law or regulation
or in any citizens suit or other private action.
Section 103. Additions to the National Priorities List
Section 103 amends section 105 of CERCLA by adding a new
section 105(h) which allows further additions to the National
Priorities List (NPL) only after the President seeks the
concurrence of the Governor of the State where the facility is
located. If the State is addressing, or will address, the site
and the Governor does not want the site listed on the NPL, the
President is barred from listing it. The Committee intends that
if the State does not begin addressing the site in a reasonably
timely fashion the President may list the site without the
concurrence of the Governor. The Committee expects swift action
to stabilize any site and protect the public. Initiation of
long term cleanup actions must be measured against the time
required for identification, listing, and action for sites on
the National Priorities List. The legislation contains
exceptions for situations where two States are affected or
where the State has a conflict of interest because it is a
major responsible party at the site.
Section 104. Innocent landowners
Section 104 adds a new section 107(o) to CERCLA which
provides innocent landowners greater certainty by defining the
criteria necessary for avoiding CERCLA liability. The new
subsection further defines what constitutes all appropriate
inquiry and environmental assessments as criteria for
establishing that a party is an innocent landowner.
Section 105. Bona fide prospective purchaser liability
Section 105 adds a new section 107(p) establishing criteria
for bona fide prospective purchasers. A party has an
affirmative defense to CERCLA liability if that party can
establish that the party is a bona fide prospective purchaser
and establish by a preponderance of the evidence that all
active disposal of hazardous substances at the facility
occurred before the party acquired the facility. The party must
also show that it made all appropriate inquiry; provided all
legally required notice; exercised appropriate care; provided
full cooperation; and is not affiliated with another liable
party in order to qualify.
Section 105 adds a new section 107(q) to assure that the
United States has a lien on any facility where there are
unrecovered response costs for any increase in the fair market
value of the property attributable to the response action.
Section 106. Innocent governmental entities
Section 106 adds a new section 107(b)(2)(D) to CERCLA which
provides that a governmental entity which is a potentially
liable party under CERCLA based solely on the entity's status
as an owner or operator of a facility through escheat or other
involuntary transfer, eminent domain, or by granting a license
or permit to conduct business, can establish a defense to that
liability by demonstrating that the governmental entity
acquired the facility after all disposal or placement of
hazardous substances had taken place, did not cause or
contribute to the contamination, and exercised appropriate care
with respect to any hazardous substances on the property. Under
section 101(20) of CERCLA, governments who acquire property
involuntarily are excluded from the definition of owner or
operator. Under section 107(b)(2)(D), the exercise of eminent
domain authority or merely granting a license or permit, which
are not involuntary actions, does not subject a governmental
entity to CERCLA liability.
Section 107. Contiguous properties
Section 107 adds a new section 107(s) to CERCLA which
provides protection from CERCLA liability for owners of
property where there has been migration of hazardous substances
on to the person's property from a facility that is under
separate ownership or operation, as long as the person did not
cause, contribute, or consent to the release or threatened
release; provided cooperation; and is not affiliated with
another liable party. This amendment reflects existing law on
contiguous property owners as set forth in Kalamazoo River
Study Group v. Rockwell International, 3 F.Supp.2d 799 (W.D.
Mich. 1998) (riparian property owner is not liable for
contamination released from an upstream facility that migrated
down the river), and Dent v. Beazer Materials and Services,
Inc., 1995 W.L. 940693 (D.S.C. 1995) (mere ownership of
property to which hazardous substances have migrated is not
sufficient for the imposition of liability under CERCLA,
apportioning 100 percent of the liability to the owner of the
facility that was the source of the hazardous substances).
A contiguous property owner or operator need not await
litigation to have its innocence affirmed. This provision
authorizes EPA to provide written assurances to these property
owners and operators that they are not subject to enforcement
actions by the government or to contribution actions by private
parties. It is the Committee's intent that EPA will readily
provide these assurances in appropriate cases, so that these
property owners will not continue to face the specter of
potential liability.
In the past, EPA has included the area through which
contamination has migrated as part of a NPL-listed Superfund
site. This can occur even in cases where the contamination has
only migrated through ground water which is not used as
drinking water and presents no realistic risk of exposure to
persons using the surface of the property. Listing such
properties as part of NPL sites places a significant stigma and
financial burden on these property owners by making it
difficult for them to sell, develop, or lease their land.
The new section 107(s) addresses the concern that these
contiguous properties may be unfairly stigmatized by being
included as part of NPL Superfund sites, especially when the
surface of the land itself is not contaminated and the ground
water beneath the property is not used as a source of drinking
water. The section provides that the owner or operator of
contiguous property may petition EPA to have that property
deleted from the description of an NPL site if that property is
only contaminated through migrating ground water and the ground
water is not used as a source of drinking water. The Committee
strongly encourages EPA to be forthcoming in granting these
petitions where the petitioner makes the appropriate showing.
No useful purpose is achieved in labeling these properties as
part of an NPL site when the land itself is not contaminated
and there is no realistic risk of human exposure to the
contaminants in the ground water. Rather, the owners and
operators of these properties should not be impeded from
leasing, developing and otherwise using their properties by an
unnecessary NPL listing.
Section 108. Remedy selection
Section 108 amends section 121 of CERCLA in a number of
ways. First, section 108 provides for meaningful consideration
of practicality and reasonably anticipated uses of land, water
and other resources in remedy selection decisions. Second, the
changes ensure that the current preference for permanence and
treatment in section 121(b) of CERCLA does not override risks
to the community or workers. Section 108 also removes the
requirement in section 121(d) of CERCLA to meet ``relevant and
appropriate'' standards, but maintains legally applicable
requirements. Section 108 also adds new subsections to section
121 of CERCLA to provide for risk assessments, characterization
and communication principles; a study of substances and
mixtures; and consideration of sensitive subpopulations through
site-specific risk assessment.
Section 108 amends section 121(b) of CERCLA to modify the
current preferences for treatment and permanence with the
qualifiers ``to the extent practicable, considering the nature
and timing of reasonably anticipated uses of land, water, and
other resources.'' Numerous parties have requested the
consideration of reasonably anticipated land use as a
commonsense measure that should guide remedy selection. An
industrial park need not be cleaned up as if it were a
playground. There are many types of engineering and
institutional strategies to remediate a site so as to protect
human health and the environment consistent with the
requirements of section 121(a). Treatment is one such
engineering option and, indeed, there are many types of
treatment. The Committee intends that strategies should be
selected based on the need to protect human health and the
environment in a site-specific manner, considering the
practicalities at the site and reasonably anticipated uses of
land, water and other resources.
Section 108 also amends section 121(b) of CERCLA to ensure
that the statutory preference for permanence and treatment is
not implemented in a manner that causes increased risks to
workers and the community. Remedial treatment technologies,
even if operated within permitted limits and in accordance with
the Occupational Safety and Health Administration (OSHA) and
other safety or health regulations, should not be presumed to
be free of risk to human health or the environment. For
example, a particular remedy may destroy significant
ecosystems, or expose an ecosystem to previously buried
contaminants which may also be followed by increased human
exposures; remedial technologies and the handling of
contaminated materials may pose a safety or health risk to
workers at the site; materials removed from a site may also be
transported through a community and pose risks from increased
truck traffic and spillage in the community; contaminated
materials may be incinerated where air emissions may pose a
risk to the community; and finally, contaminated materials or
residues may be disposed of in landfills or other containment
structures which may themselves pose risks to human health or
the environment. A site-specific analysis is necessary to
determine whether remedialalternatives involve scenarios such
as those above which create risks where none existed before, or
increase risks from levels that would exist but for the implementation
of the remedy.
Consistent with the requirement of section 121 that
remedies be protective of human health and the environment,
this provision requires EPA to assess the reasonably
anticipated health and environmental risks posed by the
remedial alternative, with particular attention to communities
where the remedy is to be implemented, and to assess the
reasonably anticipated risks to the safety and health of
workers who would be engaged in the remedy. This analysis must
be completed prior to selecting a remedial action. Risk to the
community or workers does not prohibit a treatment option.
However, if, applying reasonably anticipated scenarios such as
those noted above to a particular site, a remedial alternative
would increase health or environmental risks to the public or
risks to worker health or safety, the preference itself no
longer applies in the remedial selection process, and the
remedial action for that site is chosen based on the factors
applicable in the absence of the statutory preference.
Section 108 also deletes the requirement to meet ``relevant
and appropriate'' standards under section 121(d) of CERCLA
except for Maximum Contaminant Levels under the Safe Drinking
Water Act (42 U.S.C. Sec. 300(f) et seq.). Section 108 also
ensures that the concept of reasonable points of compliance
preserves the flexibility that EPA uses to make practical site-
specific decisions.
Risk Assessment and Characterization Principles.--Section
108 also adds a new section 121(g) to CERCLA. The new
subsection requires risk assessments and characterizations to
be scientifically objective and unbiased. The purpose of risk
assessment is to assess and explain the best science. It may be
appropriate in the step of making risk management decisions to
take a precautionary approach on issues of public health
through the use of safety factors. Such decisions should be
informed by the best science and scientific understanding. It
is inappropriate to intentionally bias the risk assessment
process by ignoring or discounting the best scientific
understanding of the nature and magnitude of risk.
This section does not preclude the use of assumptions in
risk assessment. This debate has frequently confused the
relationship of assumptions and data. Assumptions are, in part,
based on a body of scientific information and understanding.
Similarly, the use of data often involves assumptions about the
appropriate use of such data in a specific context. When
assumptions, or an approach to using data, are necessary to
calculate a risk measure, the public needs to know which
assumption or approach is supported by the greater weight of
the scientific evidence. It is also important to provide
information on uncertainty and variability.
The section requires risk assessments to provide, among
other estimates, risk measures based on the most scientifically
supported assumptions, information, and approaches. The section
does not preclude the calculation of any risk measure,
including ``conservative'' risk estimates. Such measures are
simply additional descriptions of the risk profile. Sole use of
compound ``conservative'' default assumptions, however, without
also producing risk measures based on the most scientifically
supported assumptions is biased and misleading. Such assessment
and characterization practices have been a significant problem
with Superfund risk assessments which mislead risk managers and
the public. Too frequently, better information and site-
specific information have been ignored.
Sensitive Subpopulations and Site-specific Risk
Assessment.--Section 108 adds a new subsection (h) to section
121 of CERCLA concerning sensitive subpopulations and site-
specific risk assessments. In order to appropriately provide
remedial alternatives and sound decisions, the remedial manager
must provide or obtain a site-specific risk assessment.
Exposure scenarios must be based on the actual or reasonably
anticipated situation at or near the site considering
reasonably anticipated uses of land, water, and other
resources. Highly exposed or highly vulnerable groups may be
identified through site-specific risk assessments. This
paragraph does not make such groups a default assumption, as
risk is a site-specific concept. The reasonably anticipated
uses of industrial parks or railroads does not necessarily
result in residential exposure scenarios or exposure scenarios
for children unless there is evidence in the specific context.
At the same time, the President should take into consideration
any subsistence fishermen, cultural practices, or identified
vulnerable groups in the site-specific risk assessment process.
The nature of the actual, scientifically objective risks at the
site must inform the remedy selection process. Moreover, the
significance of the risk in relationship to risks that may be
created by a remedial option must be considered.
Study of Substances and Mixtures.--Section 108 adds a new
paragraph (i) to section 121 of CERCLA to provide for a study
of substances and mixtures. The Committee intends that this
paragraph further the scientific understanding of: the most
appropriate approach for assessing and estimating cancer risks
from certain chemicals; and how to address chemical mixtures.
This information may be useful in future efforts. No action
shall be delayed because of the study. Nor is there an
exemption from the requirements of new sections 121(g), 121(h),
or 121(j) for any risk assessment during the course of the
study.
Presentation of Risk Information.--Section 108 also adds a
new paragraph (j) to section 121 of CERCLA concerning
presentation of risk information. This paragraph ensures that
the presentation of risk information by the President is full,
unbiased, transparent, and meaningful.
Section 109. Brownfields grants
Section 109 adds a new section 127 to CERCLA to address
brownfields facilities. This section addresses the major
impediments to brownfields redevelopment by providing Federal
assistance for site assessments and cleanups, and by addressing
the CERCLA liability issues that have deterred redevelopment.
New section 127(a) defines brownfields facilities,
identifies the entities eligible to receive grants (including
States and local governments), and provides other definitions.
The definition of brownfields facility specifies what
facilities are eligible for assistance under this section. The
Committee notes that pilot projects funded under the
Brownfields Redevelopment Initiative, established by EPA, have
excluded many brownfields sites due to restrictions on the use
of money from the Superfund trust fund. In particular, trust
fund money may not be used to clean up asbestos, lead based
paint, or petroleum. These restrictions are not applicable to
grants provided under this section. First, new section 127
operates independent of section 104 of CERCLA, and does not
include any of the restrictions on response found in section
104. Second, new section 127 is not funded by the Superfund
trust fund, and is not limited to restrictions on the uses of
the fund found in section 111 of CERCLA and in the Internal
Revenue Code.
New section 127(b) requires the President to establish a
program to provide grants for inventory and assessment of
brownfield facilities. This subsection includes application
requirements and the criteria the President shall use to
evaluate the applications. Each grant may not provide more than
$200,000 for single brownfield facility.
New section 127(c) requires the President to establish a
program to provide grants for capitalization of revolving loan
funds. After establishing a revolving loan fund, an eligible
entity may make loans for the purpose of carrying out remedial
actions at one or more brownfields facilities to a State, a
site owner or a site developer, including the eligible entity
itself, as long as that entity follows the same rules
applicable to other loan recipients, including repayment of the
loan in a timely manner.
If the entity receiving a grant under this section is a
local government, that local government may set aside 10
percent of the grant for the purpose of developing and
implementing a brownfields site remediation program, including
health monitoring and enforcement of institutional controls.
This set-aside should be considered ``seed money'' to encourage
cities to develop their own in-house expertise and should not
be considered a continuing source of funding for city
employees.
New section 127(c) includes application requirements and
ranking criteria the President shall use to evaluate the
applications. The Committee notes that under the ranking
criteria, the President evaluates an eligible entity's proposed
program for establishing a remediation revolving loan fund, and
does not evaluate individual remediation projects. Section
127(c) caps the maximum grant per eligible entity at
$1,000,000.
New section 127(d) establishes general provisions
applicable to both the brownfields assessment grant program and
the brownfields remediation grant program. Under this
subsection, the President is authorized to require grant
recipients to meet certain terms and conditions. These terms
and conditions relate to the eligible entity's proposed program
for establishing a revolving loan fund. The authority to
include terms and conditions necessary to ensure proper
administration of the grants does not give the President
authority to condition receipt of a grant on an agreement to
allow the President to approve which sites are selected for
remediation and to oversee remediation activities.
The Committee notes that the January 1999 EPA Proposed
Guidelines for Brownfields Cleanup Revolving Loan Fund are not
applicable to grants authorized under this section. First,these
guidelines provide an extensive role for EPA in overseeing individual
cleanup projects. Unlike the Brownfield Revolving Loan Fund pilot
projects, the Committee does not anticipate that the U.S. EPA, or any
other Federal entity administering the brownfields grant program
authorized by this section, will monitor individual projects, develop
the scope of work, or oversee operational matters. The Committee
intends that the President ensure that these programs meet the
requirements of this section, including the requirement to comply with
all applicable Federal and State laws, by auditing an appropriate
number of grants, and not by overseeing each brownfields program that
receives Federal funding. Second, while guidelines include many
restrictions and requirements to ensure compliance with the National
Contingency Plan (NCP), the NCP is not applicable to grants under this
section.
New section 127(e) requires the President to evaluate and
approve grants based on specific ranking criteria. Grants under
this section are applicable to a particular fiscal year.
Nothing in new section 127 prevents an eligible entity from
seeking an additional grant in a subsequent fiscal year.
However, such a grant application would be evaluated with all
other grant applications, based on the ranking criteria, which
can take prior funding into account under the criteria related
to the need for financial assistance.
New section 127(f) authorizes such sums as may be necessary
to carry out this section.
Title II--Expenditures From the Hazardous Substance Superfund
Section 201. Expenditures From the Hazardous Substance Superfund
Section 201 amends section 111 of CERCLA. It creates a new
subsection (a) that authorizes direct spending of no more than
$250,000,000 per year for Fiscal Years 2000 through 2004 to
cover fund share of liability attributable to specified
exemptions and obligations in subsection (b). This subsection
also authorizes $1,500,000,000 per year in Fiscal Years 2000
through 2002, $1,400,000,000 in Fiscal Year 2003, and
$1,350,000,000 in Fiscal Year 2000 for the purposes described
in subsection (c), relating to response, removal and
remediation, and subsection (d), relating to administration,
oversight, research and other costs.
Subsection (b) limits total expenditures from amounts made
available to fund shares of liability attributable to specified
exemptions and obligations to $250,000,000 per year in Fiscal
Years 2000 through 2004. In addition, this subsection allows
the President to use funds made available pursuant to
subsection (a)(1) for the purposes allowed under subsections
(c) and (d), if the President does not have the total amount
authorized for such purposes in such fiscal years available for
obligation. The President may use this authority only to the
extent necessary to bring the amounts available for
authorization up to the authorized levels for such fiscal
years.
Subsection (c) authorizes funding, subject to
appropriation, of the following: (1) government response costs;
(2) private response cost claims; (3) acquisition of real
estate under section 104; (4) State and local government
reimbursement under section 123; and (5) contracts and
cooperative agreements under section 104(d).
Subsection (d) authorizes funding, subject to
appropriation, of the following: (1) investigation and
enforcement; (2) overhead; (3) employee safety programs; (4)
grants for technical assistance; (5) worker training and
education; (6) ATSDR activities; (7) evaluation costs under
section 105(d); (8) contract costs under section 104(a)(1); (9)
research and development under section 311; (10) awards under
section 109(d); and (11) grants to States to develop
comprehensive State ground water protection plans.
Subsection (e) reiterates subsections 111(e)(1) and
111(e)(3) in current law. Claims against the Fund shall only be
paid if there is a positive unobligated balance in the Fund.
This section also places a limitation on the use of the Fund at
Federal facilities, and clarifies that Trust Fund money may not
be used for remedial action at facilities that are not on the
NPL. This section also deletes subsections 111(j) and (n)
related to claims against the Fund arising from the transition
of claims from the Clean Water Act to CERCLA, and deletes
subsection 107(k) of CERCLA, which has never been funded or
implemented.
Section 202. Authorization of appropriations from general revenues
Section 202(a) amends subsection 111(p) to authorize the
appropriation of such sums as necessary for each of Fiscal
Years 2000 through 2004 from general revenues to the Fund (plus
any budget authority that may remain from previous years).
Section 202 (b) repeals section 517 of the Superfund Amendments
Reauthorization Act (SARA), which is duplicative of section
111(p) of CERCLA.
Section 203. Completion of the National Priorities List
Section 603 authorizes $1 million for a study of the 10-
year funding needs for the Superfund program.
Title III--Liability Reform
Section 301. Liability relief for innocent parties
Section 301 amends section 107(b) of CERCLA to create
additional defenses to liability for the following classes of
innocent parties that are owners or operators of facilities
listed on the NPL who did not cause or contribute to the
pollution at a Superfund site:
Recipients of Property by Inheritance or Bequest.--Under
new section 107(b)(2)(A), an owner or operator of a facility or
vessel can establish an affirmative defense to CERCLA liability
by showing, by a preponderance of the evidence, that he
acquired the property by inheritance or bequest and that he met
all the conditions in new section 107(b)(4), which requires a
showing that he did not cause or contribute to the release or
threatened release and exercised appropriate care with respect
to the hazardous substances. This provision is intended to
protect innocent owners or operators whose liability is the
result of an inheritance or bequest.
Recipients of Property by Charitable Donation.--Under new
section 107(b)(2)(B), an owner or operator of a facility can
limit his liability to the lesser of the fair market value of
the facility or vessel and the actual proceeds of the sale of
the facility, if the following conditions are met. The owner or
operator must be a non-profit organization, as defined by the
Internal Revenue Service, and the person must meet the
requirements in new section 107(b)(4), requiring a showing that
he did not cause or contribute to the release or threatened
release and exercised appropriate care with respect to the
hazardous substances. This provision is intended to protect
innocent non-profit owners or operators whose liability is the
result of a charitable donation.
Owners or Operators of Rights of Way.--New section
107(b)(2)(C) provides a defense to CERCLA liability for a
person whose liability is based solely on his status as an
owner or operator of a road, street, pipeline, easement, or
other right-of-way over which hazardous substances are
transported or are present where that person can establish by a
preponderance of the evidence that he did not, by act or
omission, cause or contribute to the release or threatened
release. This provision is intended to protect innocent owners
or operators whose liability is the result of ownership or
operation of a right-of-way.
Railroad Owners and Operators of Spur Track.--New section
107(b)(2)(D) provides a defense to CERCLA liability for a
person whose liability is based solely on his status as a
railroad owner or railroad 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. In order to receive this protection,
the railroad owner or operator must show, by a preponderance of
the evidence, that the spur track provides access to a main
line that is owned or operated by the railroad; that the spur
track is no more than 10 miles long; and that the railroad did
not cause or contribute to the release or threatened release of
hazardous substances at the site. Railroads should not be
liable under CERCLA when they are merely carrying out their
common carrier responsibilities to serve shippers. This
provision is intended to address a situation 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. 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.
Construction Contractors.--New section 107(b)(2)(E)
provides a defense to CERCLA liability for construction
contractors who can demonstrate based on a preponderance of the
evidence that their liability is based solely on construction
activities specifically directed by and carried out in
accordance with a contract with the owner or operator of the
facility; that the contractor did not know or have reason to
know of the presence of hazardous substances at the site; and
the person exercised appropriate care with respect to the
hazardous substances. This provision is intended to protect
innocent construction contractors hired by an owner or operator
of a Superfund site to perform construction activities at the
site.
Appropriate Care Standard and Safe Harbor.--For the
defenses created in this section for which a determination of
``appropriate care'' is required, new section 107(b)(3)(A)
requires thatthis determination be made on a site-specific
basis, taking into consideration the characteristics of the hazardous
substances, in light of all relevant facts, circumstances, and
generally accepted good commercial and customary practices at the time
of the defendant's acts or omissions. The existing ``third-party''
defense under CERCLA requires a person to exercise ``due care.'' The
Committee intentionally used the term ``appropriate care'' to establish
a different standard of care for those parties whose association with a
facility begins only after all disposal or placement of hazardous
substances has occurred. New section 107(b)(3)(B) creates a safe harbor
under which a party may be deemed to have exercised ``appropriate
care'' where that party takes reasonable steps to stop continuing
releases, prevent future releases, and prevent or limit human or
natural resource exposure to any previously released substance. In
addition, this safe harbor is available if another party is already
engaged in a response action--the subsequent party may be deemed to
exercise appropriate care by cooperating with the responding party and
providing reasonable access.
New section 107(b)(4) specifies the conditions that must be
met in order to qualify for the defenses created by in new
sections 107(b)(2) (A) and (B). It requires that the person
acquire the facility after the disposal or placement of
hazardous substances occurred; that the person did not cause or
contribute to the release or threatened release; and that the
person exercised appropriate care, as defined in new section
107(b)(3) with respect to the hazardous substances. As used in
this section, the Committee intends ``disposal or placement''
to mean active measures taken by the owner or operator, and
does not include mere passive migration. The determination of
whether a party caused or contributed to the release or
threatened release of hazardous substances at a Superfund site
should not be construed in a manner that is inconsistent with
its ordinary meaning. For instance, the mere fact that a party
extracted ground water from a Superfund site does not mean the
party caused or contributed to the contamination at the site.
Treatment of Non-Liable Parties. This provision creates a
new section 107(b)(5) that requires the Administrator, to the
extent practicable, to inform parties that they are exempt from
liability, offer such parties written assurances of their
exemption status, and eliminate or minimize the need for such
parties to retain legal counsel. This provision is intended to
assist innocent parties in their interaction with the EPA.
Section 302. Clarifications of certain liability
Amount of Liability.--Section 302(a) clarifies the amount
of punitive damages that the President may seek to recover from
parties who, without sufficient cause, decline to perform
cleanups pursuant to orders under section 104 or 106 of CERCLA.
Clarification of Common Carrier Liability.--Section 302(b)
makes a technical amendment to section 107(b)(1)(C), as
redesignated, with respect to the ability of railroad common
carriers to assert the ``third-party'' defense. Section
107(b)(1)(C), as amended by section 302, exempts railroads from
liability for the release of hazardous substances under the
terms of a contract with a shipper who later mishandles the
commodity. Section 107(b)(3) of current CERCLA enables an
otherwise liable party to defend claims on the basis that any
release or threat 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. The amendment to
section 107(b)(1)(C) 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
the Staggers Act, railroads transported virtually all of their
traffic pursuant to tariffs. Deregulation dramatically changed
the railroad transportation system 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.
Other Clarifications.--Section 302(c) makes certain
technical modifications to CERCLA section 107. No substantive
change to current law is intended.
Section 303. Federal entities and facilities
Section 303 expressly waives the Federal government's
sovereign immunity with respect to response or restoration
actions relating to the release of hazardous substances,
pollutants, or contaminants. Section 303 is modeled on the
express waivers of sovereign immunity in section 6001 of the
Solid Waste Disposal Act and section 1447 of the Safe Drinking
Water Act. The waiver of immunity does not apply to the extent
a State is applying standards to the Federal government that
are more stringent than those applied to other entities.
Section 304. Liability relief for small businesses, municipal solid
waste, sewage sludge, municipal owners and operators, de
micromis contributors
Limitation on Small Business Liability.--Section 304(a)
amends section 107 of CERCLA to add new subsection (t) to
exempt small business concerns from Superfund liability for
generator and transporter activities occurring before September
29, 1999. A small business concern is defined as a business
with, on average over the 3 years preceding the date the small
business concern is notified by the President that the entity
is a potentially responsible party, not more than 75 full-time
employees and no more than $3,000,000 in gross revenues. The
exemption does not apply to a small business concern if its
hazardous substances have contributed, or contribute,
significantly to the costs of the response action. This new
subsection recognizes that the cost of pursuing a settlement
with these small entities can often exceed the share of
response costs that may be attributable to them. Rather than
spend resources pursuing such parties, it is more efficient to
remove these parties from the liability system and have their
share of response costs be paid by the Superfund Trust Fund.
Liability Relief for Municipal Solid Waste and Sewage
Sludge.--Section 304(b) amends section 107 of CERCLA to add new
subsection (u) to establish exemptions from and limitations on
liability with respect to municipal solid waste and sewage
sludge disposed of at a landfill facility on the National
Priorities List. New subsection (u) provides exemptions and
limitations for generators and transporters of municipal solid
waste or municipal sewage sludge at landfill facilities.
For municipal solid waste and sewage sludge that was
disposed of before the date of enactment, new subsection (u)
provides most generators and transporters with an exemption
from liability. However, subsection (u) allows the President to
hold a person liable under section 107(a)(4) where a person is
in the business of transporting municipal solid waste or sewage
sludge for disposal and that person transported municipal solid
waste or municipal sewage sludge containing hazardous
substances that has contributed, or contributes, significantly
to the costs of response at the facility. As provided in new
section 107(y), liability of these parties is transferred to
the Trust Fund. Moreover, all liability for municipal solid
waste and sewage sludge at a facility is capped at 10 percent
of the response costs. As a result, in any allocation under new
section 129, or in any contribution claim against the trust
fund under new section 107(y), the commercial hauler's
equitable share of response costs due to transporting municipal
solid waste or sewage sludge shall be based on its equitable
share of up to 10 percent of the total aggregate liability.
On or after the date of enactment, the extent that a person
is liable as a generator or transporter for arranging or
transporting municipal solid waste or municipal sewage sludge
for disposal at a landfill facility on the NPL list is limited;
only certain small municipal solid waste generators and
transporters are exempted from liability. The Committee intends
that the operative date of this paragraph is the date on which
the generator arranged, or the transporter transported,
municipal solid waste or municipal sewage sludge for disposal
at a landfill facility, regardless of the date on which that
disposal occurs. The aggregate liability of all other
generators and transporters of municipal solid waste and sewage
sludge is capped at 10 percent of response costs. The small
municipal solid waste generators and transporters who remain
exempt from liability are owners, operators, or lessees of
residential property, businesses that meet the definition of a
small business concern under the Small Business Act and have no
more than 100 paid individuals at the relevant location, and
non-profit organizations described in section 501(c)(3) of the
Internal Revenue Code with no more than 100 paid individuals at
the relevant location. The liability of these small municipal
solid waste generators as described in this subsection is
extinguished, but is not transferred to the trust fund. The
President retains the authority to offer settlements to persons
based on the average unit cost of remediating municipal solid
waste and municipal sewage sludge in landfills subject to the
limitations on liability created by this section.
Mixed Wastes.--New section 107(u) applies only to the
portion of a person's waste stream that meets the definition of
municipal solid waste and sewage sludge. A person remains
subject to liability under section 107(a) for any portion of
the person's waste stream that does not meet these definitions.
If wastes meeting the definition of municipal solid waste or
municipal sewage sludge are collected and disposed of with
wastes not meeting these definitions, a person's liability for
the wastes that do not meet these definitions, and any
equitable allocation of that liability under this Act, shall be
based on such wastes only. For example, if a person disposedof
100 cubic yards of material meeting the definition of municipal solid
waste and 3 drums of materials that did not meet the definition, the
exemptions or limitations on liability under subsection (u) would apply
to the portion of the waste stream that consisted of municipal solid
waste, even if the three drums were placed in the same dumpster.
Definitions of Municipal Solid Waste and Municipal Sewage
Sludge.--Municipal solid waste is defined in new subsection (u)
as waste generated by households (including single and
multifamily residences, and hotels and motels) and waste
materials generated by commercial, institutional, and
industrial sources, to the extent that such materials: (1) are
essentially the same as waste materials normally generated by
households, or (2) are collected and disposed with municipal
solid waste and contain no more hazardous substances than would
qualify for the de micromis exemption contained in section
304(c) of this Act. For example, an industrial source could
dispose of a de micromis amount of hazardous substances along
with material that is essentially the same as waste materials
generated by households, and all of the wastes would meet the
definition of municipal solid waste. The definition of
municipal solid waste specifically includes certain items such
as food, packaging, containers, and household hazardous waste.
This definition specifically excludes waste from manufacturing
or processing operations, unless such waste is essentially the
same as waste normally generated by households. The Committee
intends that wastes from the manufacture or processing of food
items be covered by the definition of municipal solid waste,
regardless of volume, because the same wastes are generated by
households. For example, drums of off-specification chewing
gum, or off-specification tomato sauce meet the definition of
municipal solid waste, even if they are waste materials
generated by a food manufacturing or food processing operation.
Municipal Owners and Operators.--This section creates new
subsection 107(v) providing an administrative settlement policy
for use by the President with respect to the liability of
municipal owners and operators of NPL-listed landfills. This
new subsection directs the President to offer municipal owners
and operators a settlement on the basis of a payment or other
obligation equal in value to 20 percent of the total response
costs at the facility. However, this section allows the
President to raise that amount up to 35 percent of the response
costs if specified conditions are satisfied. This subsection
also establishes several conditions for qualifying for the
settlement offer, and it includes exceptions that would
preclude the availability of the offer.
De Micromis Exemption.--Section 304(c) amends section 107
of CERCLA to add new subsection (w) to exempt generators and
transporters from liability if they contribute no more than 110
gallons or 200 pounds of material containing hazardous
substances, unless the President determines that such material
has contributed, or contributes, significantly to response
costs.
Ineligibility for Exemptions.--Section 304(d) amends
section 107 to add new subsection (x) to make persons who
impede response actions, who knowingly or willfully fail to
respond to information requests, or who fail to provide
cooperation and facility access, ineligible for the exemptions
from and limitations on liability under new subsections (t),
(u), (v), and (w) of section 107, section 114(c), and section
128.
Exempt Party Funding; Concluded Actions, and Oversight
Costs.--Section 304(e) amends section 107 to add new
subsections (y), (z), and (aa). New section 107(y) establishes
a mechanism to provide trust fund money to pay for any
liability exemptions or limitations. Under subsection (y), the
equitable share of liability that is extinguished through an
exemption or limitation on liability under new subsections (t),
(u), and (v) of section 107, section 114(c), as amended, and
section 128 is generally transferred to and assumed by the
Trust Fund. There is an exception to this general rule for the
liability of small municipal solid waste generators whose
liability is extinguished under new section 107(u)(3). No
liability is transferred based on that exemption. In addition,
the liability extinguished under subsection (w) of this section
with respect to de micromis parties is not transferred to the
Trust Fund. This subsection makes the trust fund a potentially
liable party, subject to a claim for contribution to response
costs by other potentially responsible parties under section
113 of CERCLA. The trust fund's share can be established by
settlement, by an allocator (at facilities subject to an
allocation under new section 131), or by a court. The trust
fund's share may only be paid from the separate account
established under section 111(a)(1). New section 107(z)
specifies that exemptions and limitations on liability do not
apply to concluded actions, including settlement or judgments
that are approved, or administrative action that becomes
effective, not later than 30 days after the date of enactment.
New section 107(aa) limits recovery of EPA's oversight costs to
10 percent of the costs of the response action at sites, where
the parties disclose their costs to the Administrator. New
subsection (aa) provides incentives for EPA to increase its
efficiency. It also provides an incentive for private parties
to share data with EPA on the costs of response actions.
Section 305. Liability of response action contractors
Section 305 clarifies the liability of Response Action
Contractors (RACs) under CERCLA to facilitate the prompt
cleanup of hazardous waste sites, including sites on the NPL
and brownfields sites. Typically, RACs do not own or operate
the sites where the cleanups are performed; they employ highly
trained, technically experienced staff to identify the
existence of waste at sites and to clean up those wastes.
Unfortunately, some courts have allowed parties who are liable
for response costs under CERCLA to bring suit against RACs,
drawing cleanup firms into the Superfund liability net without
regard to fault or negligence in cleanup activities. Section
307(a) amends section 119(a) of CERCLA by extending the
preexisting negligence standard for RACs under Federal law to
State law claims. This language ensures that State laws will
not be preempted by making section 119 inapplicable in States
where the State has enacted a law determining the liability of
a response action contractor. Section 307(b) amends section
119(c) to enhance EPA's discretionary authority to provide
indemnification for claims brought against RACs. Contractual
indemnification of RACs by EPA has generally not been provided
in recent years unless the risks involved affect both the
market for insurance coverage for the work and the willingness
of firms to perform cleanup services. Section 307(c) amends
section 119(c)(5) to clarify that the indemnities provided
under this section apply to threatened releases, as well as
actual releases, consistent with the scope of potential
liability under CERCLA.
Section 306. Amendments to Section 122
Final Covenants.--Section 306(a) amends section 122(f) of
CERCLA to require the President to issue final covenants not to
sue settling parties if such parties perform response actions,
there are reasonable assurances for the performance of a
response action, and the settling party pays a premium. This
provision gives the President authority to provide final
covenants not to sue in other circumstances. It also expands
the authority of the President to omit reopener provisions in
consent decrees if the settlement premium adequately addresses
unknown future conditions or remedy failure.
Expedited Final Settlements.--Section 306(b) amends section
122(g) of CERCLA to allow expedited final settlements for
parties whose contribution to the release of hazardous
substances at the facility is de minimis, and for natural
persons, small businesses, and municipalities who can
demonstrate a limited ability to pay. This amendment also
affords an administrative appeal and judicial review of the
President's denial of settlement under this subsection. Under
this subsection, the liability of a small business is
extinguished if EPA fails to offer a de minimis settlement to
the small business within 180 days of determining that its
contributions are de minimis, unless the delay was beyond the
control of the President.
Definition of Municipality.--Section 306(c) amends section
101 of CERCLA to add a definition of the term ``municipality''
to the Act.
Section 307. Clarification of liability for recycling transactions
Section 307(a) adds a new section 128 to CERCLA to address
certain recycling transactions. Under new section 128(a), a
person who arranges for the recycling of a recyclable material
by means of a transaction that is covered by this section is
not liable as a generator or transporter under CERCLA section
107(a). The requirements of this section establish a safe
harbor for certain recycling transactions. If a person meets
specified conditions, the person will not be liable as a
generator or transporter of a hazardous substance. For all
transactions that do not fall within the scope of the liability
protections provided under new section 128, the Committee
intends that determinations of liability be made under section
107(a) on a case-by-case basis based on the individual facts
and circumstances of each transaction, without regard to the
requirements of new section 128.
New section 128(b) defines recyclable material as scrap
paper, plastic, glass, textiles, rubber, metal, and spent
batteries. This definition excludes certain shipping containers
and materials with PCB concentrations in excess of 50 parts per
million (ppm).
New section 128(c) sets forth the conditions under which
transactions involving scrap paper, scrap plastic, scrap
textiles, or scrap rubber will be deemed arranging for
recycling.
New section 128(d) sets forth the conditions under which
transactions involving scrap metal are deemed arranging for
recycling. Scrap metal is defined as pieces of metal parts,
ormetal pieces that may be combined together with bolts or solders as
well as certain metal byproducts from the production of copper and
copper-based alloys. Scrap metal does not include materials that the
Administrator excludes by regulation.
New section 128(e) sets forth the conditions under which
transactions involving batteries are deemed to be arranging for
recycling. A person who arranges for the recycling of batteries
(other than lead-acid batteries) is potentially covered by the
liability protections only if the arrangement took place after
the effective date of Federal environmental regulations
regarding the storage, transport, management, or other
activities associated with recycling batteries and the person
was in compliance with such regulations. Such regulations were
promulgated by EPA on May 11, 1995, as part of the ``Universal
Waste Rule,'' and went into effect on the date of promulgation
(60 Fed. Reg. 25492 (May 11, 1995)). As a result, for batteries
other than lead-acid batteries, only transactions occurring on
or after May 11, 1995, are potentially covered by the liability
protections of new section 128.
New section 128(f) provides exclusions from the liability
protections of section 128. A person is not protected from
liability under this section if the person had an objectively
reasonable belief that the recyclable material would not be
recycled, the recyclable would be burned as fuel or for energy
recovery or incineration, or the recycling facility was not in
compliance with law. A person also is ineligible if the person
has reason to believe hazardous substances were added to the
recyclable material for reasons other than processing for
recycling, or failed to exercise reasonable care.
New section 128(g) confirms that this section does not
affect the liability of owners and operators. New section
128(h) clarifies that this section does not affect any person's
liability under any law other than CERCLA. New section 128(i)
clarifies that this section does not affect any defenses or
liabilities with respect to any transaction involving a
material that is not a recyclable material, as defined in this
section. As a result, a person who engages in recycling
transactions not covered by new section 128 may prevail on
other defenses to CERCLA liability. Moreover, new section 128
does not relieve any plaintiff of the burden of proof that
elements of liability are met in any action under this Act.
Service Station Dealers.--Section 307(b) amends section
114(c) of CERCLA to broaden the exemption from liability for
service station dealers who collect used oil for recycling to
include used oil recycling by such persons before the March 8,
1993, effective date of the Used Oil Management Standards. The
purpose of this amendment to section 114(c) is to protect
service station dealers from liability for the public service
they have provided by collecting and recycling used oil. This
amendment also clarifies that a service station dealer is
entitled to the same presumption that applies to oil received
from ``do-it-yourselfers,'' namely the presumption that oil
which the service station dealer removes from the engine of a
light duty motor vehicle or household appliance is not mixed
with other hazardous substances.
Section 308. Allocation
Section 308 adds new section 129 to CERCLA to end third-
party litigation by requiring all parties to halt their
lawsuits and participate in a neutral allocation of response
costs. This section also increases the fairness of CERCLA
liability by providing parties with the opportunity to settle
their liability under CERCLA based on their fair share of
response costs.
Purpose.--New section 129(a) defines the purpose of
allocation as the determination of the equitable shares of
response costs, including the equitable share to be borne by
the trust fund, at facilities on the National Priorities List.
Eligible Response Action.--New section 129(b) makes removal
or remedial actions at facilities on the National Priorities
List eligible for an allocation if the performance of the
action is not the subject of a decree or administrative order,
there are unrecovered costs of over $2 million, and there are
response costs attributable to the trust fund. This subsection
excludes chain of title sites from the allocation process (and
requirement of a fund share) unless the current owner is
insolvent or defunct. This subsection allows consideration of
affiliated parties who are in a chain of title or otherwise
liable for response costs for the purpose of determining
whether the current owner is insolvent or defunct.
Discretionary Allocation Process.--New section 129(c)
allows the President to initiate an allocation for any removal
or remedial action at a facility on the NPL, including
providing a Fund share.
Allocation Process.--New section 129(d) requires the
President to ensure that a fair and equitable allocation of
response costs is undertaken for eligible removal or remedial
actions at an appropriate time by a neutral allocator under a
process agreed to by the parties.
Early Offer of Settlement.--New section 129(e) requires the
President to make an early offer of settlement that includes a
Fund share.
Representation of the United States and Affected States.--
New section 129(f) allows the Department of Justice or EPA to
participate in the allocation as a representative of the trust
fund, and allows any State that may be responsible for response
costs as part of a State cost share to participate.
Moratorium on Litigation.--New section 129(g) stays all
cost recovery and contribution actions until 150 days after
issuance of the allocator's report.
Effect on Principles of Liability.--New section 129(h)
clarifies that the allocation process does not modify
principles of liability under the Act.
Fund Share.--New section 129(i) requires that the allocator
determine the share of response costs to be allocated to the
trust fund consisting of costs attributable to insolvent and
defunct parties, parties with whom the United States has
settled for less than their equitable share based on ability to
pay considerations, exempt parties, and the amount attributable
to parties whose liability is capped, to the extent that their
equitable share exceeds that cap.
Certain Municipal Solid Waste Generators.--New section
129(j) precludes attributing response costs to households,
small businesses, and small non-profit municipal solid waste
generators who are protected from liability under new
subsection 107(u). Similarly, the Committee intends that this
section preclude attributing response costs to de micromis
parties who are protected from liability under new subsection
107(w).
Unattributable Share.--New section 129(k) allows the
equitable share of response costs which cannot be attributed to
any party to spread among all parties, but requires that costs
attributable to unidentified generators be attributed to
identified transporters or identified owners and operators,
where such parties are legally responsible for such costs.
Expedited Allocation.--New section 129(l) allows the
allocator, at the request of the allocation parties, to provide
an estimate of the aggregate Fund share, to assist the parties
in reaching settlement with the United States.
Other Settlements.--New section 129(m) ends the allocation
process if the parties come forward with a private allocation
that covers at least 80 percent of the response costs. This
subsection affirms the President's authority under section
122(g) to enter into expedited settlements at any time during
an allocation.
Settlements Based on Allocations.--New section 129(n)
allows a party to settle based on an equitable share in the
allocation report, if the Administrator of EPA and the Attorney
General do not reject the allocation report. The Committee
expects the parties to agree on a standard for rejection of the
allocation as part of the process agreed to by the
participants. Further, the Committee expects that rejection of
an allocation will be extremely rare. Moreover, if at the time
the allocation is complete, the President does not have
sufficient funds to obligate the full Fund share established by
the allocation, the Committee expects the President to proceed
in a manner that preserves the equitable results of the
allocation.
Reimbursement of UAO Performance.--New section 129(o)
provides reimbursement when performing parties expend more than
their allocated share of response costs when complying with an
administrative order. This provision is intended to ensure that
the President does not use his authority to issue cleanup
orders under section 106 of CERCLA to circumvent the
President's obligation to provide for a fair and equitable
allocation of response costs. Second, it is intended to ensure
that the President does not attempt to make orphan share
funding available only if the party waives its rights to a
challenge.
Post-Settlement Litigation.--New section 129(p) allows the
United States to proceed with litigation against non-settling
parties. This provision is intended to provide a significant
incentive for parties who might otherwise be recalcitrant to
agree to conduct a cleanup.
Response Costs.--New section 129(q) states that costs of
the allocation process and costs incurred for the Fund share
are response costs. This ensures that EPA can seek recovery of
these response costs in any post-settlement litigation against
recalcitrant parties.
Federal, State, and Local Agencies.--New section 129(r)
clarifies that Federal, State, and local agencies are subject
to and entitled to the benefits of an allocation to the same
extent as any other party.
Source of Funds.--New section 129(s) provides that payments
by the Trust Fund or work performed on behalf of the Trust Fund
to meet obligations under this section are funded from amounts
made available under section 111(a)(1).
Savings Provisions.--New section 129(t) clarifies the
President's retained authorities.
Section 309. Standard for cleanup by dry cleaners
Section 309 establishes a national standard for the
remediation of dry cleaning solvents in order to address
unrealistic cleanup requirement concerns faced by dry cleaners.
Since there is no national standard in place, dry cleaners are
often confronted with an initial requirement to clean the soil
in question to drinking water standards, an unnecessarily
difficult and expensive process which is often not practical on
a site-specific basis. Section 309 uses the EPA's own Soil
Screening Guidance Document to set a standard for dry cleaning
solvents equal to the Soil Screening level for inhalation on a
site specific basis. This reasonable site-specific standard for
soil (a) would not interfere with requiring that drinking water
standards be met for ground and surface water used as drinking
water in the area and (b) could be made stricter by the EPA or
the State agency on a site-specific basis if necessary to
protect human health or the environment.
Title IV--Public Health
Section 401. Public health authorities
Disease Registry and Medical Care Providers.--Section
401(a) amends section 104(i)(1) of CERCLA modifying the
requirement in current law to establish a disease registry.
This section also makes technical amendments regarding
referrals to health care providers.
Substance Profiles.--Section 401(b) amends section
104(i)(3) to require that toxicological profiles of hazardous
substances be based on scientific developments and peer
reviewed data. This section also requires distribution of such
profiles.
Determining Health Effects.--Section 401(c) revises aspects
of health effects research under section 104(i)(5).
Public Health at NPL Facilities.--Section 401(d) revises
section 104(i)(6) to allow preliminary health assessments or
health consultations before the Agency for Toxic Substances and
Disease Registry (ATSDR) commits to full assessments at sites
and requires that such assessments take into account the needs
and conditions of the affected community and increase community
involvement in health assessments. This provision also requires
EPA to place the highest priority on facilities with releases
of hazardous substances which result in actual ongoing human
exposures at levels of public health concern, as identified by
ATSDR.
Health Studies.--Section 401(e) amends section 104(i)(7)(A)
to broaden the information ATSDR may consider before deciding
to conduct a health study.
Distribution of Materials to Health Professionals and
Medical Centers.--Section 401(f) amends section 104(i)(14) to
expand the distribution of health and risk information to the
public.
Grants, Contracts, and Community Assistance Activities.--
Section 401(g) amends section 104(i)(15) to increase the
ability of ATSDR to fund, work with, and serve public or
private non-profit entities and communities affected by the
release of hazardous substances.
Peer Review Committee.--Section 401(h) amends section
104(i) to add a requirement that ATSDR establish an external
peer review committee.
Conforming Amendments.--Section 401(i) makes technical and
conforming amendments.
Section 402. Indian health provisions
Section 402 amends section 104(i) of CERCLA to include
reference to the Indian Health Service and to require
consideration of subsistence activities in public health
assessments.
Section 403. Hazard ranking system
Section 403 amends section 105(c) of CERCLA to require the
President to place the highest priority on facilities with
actual human exposure to releases. This amendment is consistent
with the amendment to section 104(i)(6)(a)(iii) made by section
221(d) of the bill. This section also requires EPA to take
prior response actions into account when determining whether or
not to list a facility on the NPL.
Section 404. Disclosure of releases of hazardous substances at
Superfund sites
Section 404 amends section 117 of CERCLA covering public
participation to add a new subsection (b) requiring disclosure
of information about releases of hazardous substances from
sites on the NPL or proposed for listing on the NPL. This
provision requires the President to make information about
releases of hazardous substances more widely available to the
public at various stages of a cleanup, including before and
during the removal action, as part of the remedial
investigation, as part of the feasibility study, as part of the
record of decision, and after completion of construction. The
purpose of this section is to provide the public with
information about potential risks posed by the site. The
Committee expects that this section will be implemented so as
to facilitate a better understanding of the magnitude and
nature of potential risks associated with Superfund sites, and
directs the EPA to provide the best and most accurate
information and estimates available in complying with this
section. EPA should not disseminate information pursuant to
this section for which there is a reasonable basis to conclude
that the information presents, or is reasonably likely to
present, a misleading picture of the risks posed by the NPL
facility. This section does not place any additional burdens on
any party that is performing a response action. The source of
this information is intended to be data that are already
collected as part of the response action. If such data are not
readily available, the President is directed to make best
estimates.
Administration Views
Environmental Protection Agency,
Washington, DC, October 12, 1999.
Hon. Tom Bliley, Jr.,
Chairman, Committee on Commerce,
House of Representatives, Washington, DC.
Dear Chairman Bliley: The Administration has worked
diligently to enact responsible Superfund reform legislation
for the past six years. As you know, the Administration has
implemented three rounds of administrative reforms of the
Superfund program that have fundamentally improved program
performance resulting in faster, fairer, and more efficient
cleanups. The cost and duration of Superfund cleanups has been
reduced by 20 percent, while the number of cleanups completed
has increased from 65 to 85 per year. Cleanup construction has
been completed at 670 Superfund sites and more than 400
additional sites are undergoing cleanup construction. More than
90 percent of all Superfund sites have had cleanup construction
completed or are in the midst of cleanup construction. More
than three times as many toxic waste sites have been cleaned up
during this Administration that were cleaned up in all of the
prior years combined.
To build upon this significant progress, the Administration
continues to support targeted legislation that encourages the
cleanup and development of brownfields and addresses the
liability of prospective purchasers, contiguous property
owners, truly innocent land owners, small businesses,
municipalities, and recyclers. The alternative Superfund bill
offered by Representative Towns, which was supported by a large
number of the subcommittee members during the Finance and
Hazardous Materials Subcommittee markup, is targeted
legislation that the Administration can support. We remain
hopeful that responsible bipartisan reform legislation can be
enacted. Unfortunately, to date, responsible Superfund and
brownfield legislation has not been marked up in either the
House Transportation and Infrastructure Committee nor the House
Commerce Subcommittee on Finance and Hazardous Materials.
Given the significant progress we have been able to achieve
in the Superfund program over the past six years, the
Administration cannot support legislation that would undermine
that progress and therefore must strongly oppose H.R. 2580 as
reported by the Subcommittee on Finance and Hazardous
Materials.
The version of H.R. 2580 that is scheduled for full
Commerce Committee markup will reduce the current pace of
cleanup by cutting available cleanup funds and adding
unnecessary, time consuming layers of new risk assessment and
remedy selection requirements. Further, the bill shifts
significant cleanup costs from polluters to the general public.
The bill also includes provisions that weaken cleanup standards
that help ensure permanent cleanups, fails to protect
uncontainmented ground water, and eliminates relevant and
appropriate federal and state standards that help tailor
Superfund cleanups to meet specific site conditions,
particularly the ability to clean up ground water to state
drinking water standards.
We are also concerned that Congress has failed to reinstate
the lapsed Superfund taxes, which have historically funded the
cleanup of toxic waste sites. It is especially irresponsible to
force the general public to pay for the hundreds of millions of
dollars of special interest liability exemptions in the bill,
thereby shifting the cost of toxic waste cleanup from the
industrial sectors that contributed to the problem to the
general public. A significant portion of the current Superfund
budget would be needed to pay for the liability exemptions in
the bill.
In addition, rather than encouraging early settlements
between the federal government and parties that contributed to
the toxic waste problem, the bill actually rewards polluters
that refuse to settle and encourages them to identify small
parties and entangle them in allocation disputes in order to
reduce what large polluters must pay to clean up the site.
Further, the bill undermines the federal safety net that
protects all Americans, by prohibiting EPA from ordering
polluters to clean up high-risk toxic waste sites in states
that lack the resources to properly address these sites.
The Administration remains committed to working with
Congress to enact responsible Superfund legislation as
represented in the alternative bill offered by Representative
Towns during the Finance and Hazardous Materials Subcommittee
markup.
The Office of Management and Budget advises that there is
no objection to the transmission of this letter from the
standpoint of the President's program.
Sincerely,
Carol M. Browner.
------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, October 13, 1999.
Hon. John D. Dingell,
Ranking Member, Committee on Commerce,
House of Representatives, Washington, DC.
Dear Congressman Dingell: The Department of Justice has
reviewed H.R. 2580, the ``Land Recycling Act of 1999,'' as
reported out of the Finance and Hazardous Materials
Subcommittee of the House Commerce Committee on September 29,
1999, and strongly oppose this legislation. (An identical
letter is being sent to Chairman Thomas J. Bliley, Jr.)
In general, the scope of the bill goes well beyond
encouraging brownfields redevelopment, and is inconsistent with
the Administration's desire to enact narrow, targeted Superfund
legislation in this Congress. In brief, we believe H.R. 2580
would shift cleanup costs to the American taxpayer, unduly
restrict the ability of the federal government and citizens to
protect public health and the environment, slow cleanups and
drag small parties back into the process through the mandatory
allocation scheme, roll back the level of protection of
cleanups that do occur, provide overly broad liability relief,
increase transaction costs.
This letter provides a general overview of our most serious
concerns.
The Bill Would Shift Major New Costs to the Taxpayer
The Administration has steadfastly supported the ``polluter
pays'' principle as the most equitable financing mechanism for
securing cleanup of Superfund sites. Unfortunately, H.R. 2580
would reject that approach and would shift major new costs to
the Fund in order to pay for the hundreds of millions of
dollars in special interest liability exemptions in the bill.
At the same time, Congress has not reinstated the taxes
supporting the Superfund program that expired in 1995. As a
result, H.R. 2580 would make the American taxpayer--not
polluters--pay for these costs.
Unreasonable Restrictions on Federal Authorities
We believe the restrictions on federal authorities in
section 102 are gravely flawed and would remove the federal
safety net that currently protects human health and the
environment across the nation pursuant to Superfund. For
example, H.R. 2580 extends its broad prohibition on federal
enforcement at sites subject to state response actions not only
to CERCLA, but also to RCRA abatement and citizen suit
authorities. Also, the scope of the enforcement bar is very
broad and covers much more than just lightly-contaminated
brownfields sites (i.e., NPL-caliber sites would be subject to
the bar). What's more, the narrow exceptions to that bar would
prevent a federal response in situations that may present an
imminent and substantial endangerment to communities near
Superfund sites. Although H.R. 2580 contains language that is
somewhat different than that found in H.R. 1300, it continues
to impose a more stringent standard than the statute's existing
``imminent and substantial endangerment'' provision, a
provision also found in nearly every other federal
environmental statute. This new standard will make it more
difficult for the federal government to protect human health
and the environment, and will lead to years of litigation over
its meaning. We also object to the fact that a state can simply
certify that its program satisfies insufficiently defined
criteria--thereby triggering the overly-broad federal
enforcement bar--with no opportunity for EPA to review and
evaluate the adequacy of that state program. We strongly oppose
this new language that would invite a new round of litigation
over its meaning and would create unwarranted risks to public
health by barring federal intervention.
In addition, we object to the language in section 102(e)
that would eliminate the requirement for any federal permit for
response actions that are covered by the federal enforcement
bar. Although proponents have likened this provision to section
121(e) of CERCLA, H.R. 2580 would provide none of the
protections inherent in the Superfund remedy selection process
for determining appropriate cleanup standards, including the
opportunity for public participation in the determination of
such standards. When combined with the bill's elimination of
citizen suit enforcement options and EPA's inability to ensure
adequate state public participation procedures under the state
program self-certification approach, affected communities may
well be left without a voice in the cleanup process.
The New Allocation Process Will Discourage Settlements and Slow
Cleanups
In my recent letter to the Finance and Hazardous Materials
subcommittee regarding H.R. 1300 (attached), I discussed our
extensive concerns with the new prescriptive, mandatory
allocation process contained in that legislation. We were quite
disappointed, then, to see that essentially the same language
was included in the bill reported out of the subcommittee on
September 29, 1999.
To briefly recap the points made in my earlier letter, we
believe this new section is not needed, in light of the
significant changes we have made in our enforcement strategy,
as a result of our administrative reforms. Furthermore, if
enacted, H.R. 2580's allocation system will generate
litigation, not settlements, pulling lawyers back into the
process and miring cleanup in litigation and transaction costs.
It will also drag exempt and already-settled parties (including
the smallest parties) through the allocation process and
greatly increase their transaction costs. Finally, it will slow
down or stop ongoing response actions, and could force the
federal government to rely primarily on Fund-lead cleanups to
avoid disruptions in the cleanup process.
the remedy provisions roll back protection
We are extremely concerned that Section 108 of the bill
erodes protection of human health and the environment. For
example, in making the three changes to current CERCLA section
121(b)(1), the bill would dilute the current statute's
preference for permanent treatment remedies. In addition, the
bill would eliminate the use of ``relevant and appropriate
requirements'' currently included in CERCLA section 122(d).
Such changes to the existing remedy selection provisions are
unnecessary in light of the Superfund administrative reforms.
They also could interfere with EPA's ability to effectively
remediate sites the first time around by allowing greater
amounts of contamination to remain in the soil and ground water
where it can cause a new round of cleanups in the future.
The new ``dry cleaners'' amendment adopted at the bill's
mark-up before the subcommittee would impose an unsafe national
cleanup level for toxic waste at drycleaner sites. The
provision adopts an existing EPA guideline designed to assess
the need for cleaning up perchloroethylene and other dry
cleaning solvents in soil and applies it as the presumptive
standard for all environmental media, including groundwater and
surface water. Several studies and EPA data show that ``perc''
is one of the most pervasive contaminants found in groundwater
in the U.S. Accordingly, we object to the way this section will
make EPA wait until people are actually drinking ``perc''
contaminated water before the agency can apply a more
protective standard. We also object to the burdensome
obligations placed on EPA in order to deviate from the
statutory standard on a site-by-site basis. Significantly, the
current national drinking water requirements are thousands of
times lower than the ``presumptive'' level established in this
section.
new liability exemptions and expanded defenses are over broad
The Administration has testified before the Finance and
Hazardous Materials Committee several times this year
supporting certain narrow, targeted liability relief that we
believe is appropriate. Unfortunately, H.R. 2580 would provide
numerous new exemptions and defenses from CERCLA liability that
are far too broad.
For example, the municipal solid waste (MSW) exemption is
not consistent with EPA's recently issued MSW settlement policy
and would provide inappropriate relief to large waste
generators and commercial haulers. In addition, the bill
provides an over broad exemption to small businesses, which
could include businesses that contributed large amounts of
highly toxic wastes. Furthermore, the bill includes a new
administrative appeal mechanism that could keep de minimis
settlements tied up in knots, delaying liability resolution for
years for deserving parties while other parties argue and
litigate over EPA's decision on eligibility.
h.r. 2580 would result in a significant increase in litigation
As I have already discussed in this letter and in my recent
letter to the subcommittee on H.R. 1300, we strongly oppose
legislation that will increase transaction costs.
Unfortunately, H.R. 2580 will initiate another litigation
feeding frenzy--from challenges to the allocation process to
litigation over remedies and revisions to the National
Contingency Plan, from litigation over affirmative defenses and
exemptions to challenges to risk assessment procedures. The
bill will invite a new round of expensive litigation over what
is meant by all of its new terms and requirements. Rather than
alleviating the concerns expressed by many Members of Congress
over transaction costs, this bill will exacerbate the problem
as courts will be asked to review and revise eighteen years of
established case law.
I hope our analysis of this bill is helpful, and would be
pleased to discuss these and other more detailed concerns with
you further. The Office of Management and Budget has advised
that there is no objection to the submission of this letter
from the standpoint of the Administration's program.
Sincerely,
Joyce E. Peters,
Counsel.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980
TITLE I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
definitions
Sec. 101. For purpose of this title--
(1) * * *
* * * * * * *
(35)(A) The term ``contractual relationship'', for
the purpose of section [107(b)(3)] 107(b)(1)(C)
includes, but is not limited to, land contracts, deeds
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) * * *
In addition to establishing the foregoing, the
defendant must establish that he has satisfied the
requirements of section [107(b)(3)] 107(b)(1)(C) (a)
and (b).
(B) To establish that the defendant had no reason to
know, as provided in clause (i) of subparagraph (A) of
this paragraph, the defendant must have undertaken, at
the time of acquisition, all appropriate inquiry (as
specified in section 107(o)) 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.
(C) Nothing in this paragraph or in section
[107(b)(3)] 107(b)(1)(C) 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)]
107(b)(1)(C) shall be available to such defendant.
* * * * * * *
(39) 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.
The term also includes a natural person acting in the
capacity of an official, employee, or agent of any
entity referred to in the preceding sentence in the
performance of governmental functions.
* * * * * * *
response authorities
Sec. 104. (a) * * *
* * * * * * *
(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, the Director
of the Indian Health Service, and appropriate State 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, establish and
maintain a national registry of serious diseases and
illnesses and a national registry of persons exposed to
toxic substances;]
(A) in cooperation with the States, for scientific
purposes and public health purposes, establish and
maintain a national registry of persons exposed to
toxic substances;
* * * * * * *
(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.]
In cases of public health emergencies, exposed persons shall be
eligible for referral to licensed or accredited health care
providers.
* * * * * * *
(3)(A) 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)] (i) 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)] (ii) 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)] (iii) 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. Such profiles shall be provided to the States and made
available to other interested parties.]
(B) 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 prepared under this paragraph shall be for those
substances highest on the list of priorities under paragraph
(2) for which profiles have not previously been prepared or for
substances not on the list but which have been found at
facilities for which there has been a response action under
this Act and which have been determined by ATSDR to be of
health concern. Profiles required under this paragraph shall be
revised and republished, as appropriate, based on scientific
development and shall be provided to the States, including
State health departments, tribal health officials, and local
health departments, and made available to other interested
parties.
* * * * * * *
(5)(A) For each hazardous substance listed pursuant to
paragraph (2), the Administrator of ATSDR (in consultation with
the Administrator of EPA and the Director of the Indian Health
Service and other agencies and programs of the Public Health
Service) shall assess whether adequate information on the
health effects of such substance is available. For any such
substance for which adequate information is not available (or
under development), the Administrator of ATSDR, in cooperation
with the Director of the National Toxicology Program, shall
assure the initiation of a program of research [designed to
determine the health effects (and techniques for development of
methods to determine such health effects) of such substance.]
conducted directly or by means such as cooperative agreements
and grants with appropriate public and nonprofit institutions.
The research shall be designed to determine the health effects
of the substance and techniques for development of methods to
determine such health effects. 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) * * *
* * * * * * *
(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) laboratory and other studies to develop
innovative techniques for predicting organ-specific,
site-specific, and system-specific acute and chronic
toxicity; and
[(iv)] (v) where there is a possibility of obtaining
human data, the collection of such information.
* * * * * * *
[(6)(A) The Administrator of ATSDR shall perform a public
health assessment for each facility on the National Priorities
List established under section 105. Such public 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)(A)(i) The Administrator of ATSDR shall perform a
preliminary public health assessment or health consultation for
each facility on the National Priorities List, including those
facilities owned by any department, agency, or instrumentality
of the United States, and those sites that are the subject of a
petition under subparagraph (B). The preliminary public health
assessment or health consultation shall be commenced as soon as
practicable after each facility isproposed for inclusion on the
National Priorities List or the Administrator of ATSDR accepts a
petition for a public health assessment. If the Administrator of ATSDR,
in consultation with local public health officials, determines that the
results of a preliminary public health assessment or health
consultation indicate the need for a public health assessment, the
Administrator of the ATSDR shall conduct the public health assessment
of those sites posing a health hazard. The results of the public health
assessment should be considered in selecting the remedial action for
the facility.
(ii) The Administrator of ATSDR, in cooperation with States,
shall design public health assessments that take into account
the needs and conditions of the affected community.
(iii) The Administrator of EPA shall place highest priority
on facilities with releases of hazardous substances which
result in actual ongoing human exposures at levels of public
health concern or adverse health effects as identified in a
public health assessment conducted by the Administrator of
ATSDR or are reasonably anticipated based on currently known
facts.
* * * * * * *
(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 where low
population density is not used as an excluding risk factor, 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)(i) 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.
(ii) The President and the Administrator of ATSDR shall
develop strategies to obtain relevant on-site and off-site
characterization data for use in the public health assessment.
The President shall, to the maximum extent practicable, provide
the Administrator of ATSDR with the data and information
necessary to make public health assessments sufficiently prior
to the choice of remedial actions to allow the Administrator of
ATSDR to complete these assessments.
(iii) Where appropriate, the Administrator of ATSDR shall
provide to the President, as soon as practicable after site
discovery, recommendations for sampling environmental media for
hazardous substances of public health concern. To the extent
feasible, the President shall incorporate such recommendations
into the President's site investigation activities.
(iv) In order to improve community involvement in public
health assessments, the Administrator of ATSDR shall carry out
each of the following duties:
(I) Collect from community advisory groups, from
State and local public health authorities, and from
other sources in communities affected or potentially
affected by releases of hazardous substances data
regarding exposure, relevant human activities, and
other factors.
(II) Design public health assessments that take into
account the needs and conditions of the affected
community. Community-based research models, local
expertise, and local health resources should be used in
designing the public health assessment. In developing
such designs, emphasis shall be placed on collection of
actual exposure data, and sources of multiple exposure
shall be considered.
(E) Any State or political subdivision 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. If the Administrator of ATSDR or the Administrator
of EPA does not act on the recommendations of the State, the
Administrator of ATSDR or EPA must respond in writing to the
State or tribe as to why the Administrator of ATSDR or EPA has
not acted on the recommendations.
(F) For the purposes 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 pathways of human exposure (including ground or
surface water contamination, air emissions, [and] food chain
contamination, and any other pathways resulting from
subsistence activities), 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.
(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), orthrough other
means. In using the results of health assessments for determining
additional actions to be taken 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 may 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.
* * * * * * *
[(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.]
(7)(A) Whenever in the judgment of the Administrator of ATSDR
it is appropriate on the basis of the results of a public
health assessment or on the basis of other appropriate
information, the Administrator of ATSDR shall conduct a human
health study of exposure or other health effects for selected
groups or individuals in order to determine the desirability of
conducting full scale epidemiologic or other health studies of
the entire exposed population.
* * * * * * *
[(14) In the implementation of this subsection and other
health-related authorities of this Act, the Administrator of
ATSDR shall assemble, develop as necessary, and distribute to
the States, and upon request to medical colleges, physicians,
and other health professionals, appropriate educational
materials (including short courses) on the medical
surveillance, screening, and methods of diagnosis and treatment
of injury or disease related to exposure to hazardous
substances (giving priority to those listed in paragraph (2)),
through such means as the Administrator of ATSDR deems
appropriate.]
(14) Educational Materials.--In implementing this subsection
and other health-related provisions of this Act the
Administrator of ATSDR, in cooperation with the States, shall--
(A) assemble, develop as necessary, and distribute to
the State and local health officials, tribes, medical
colleges, physicians, nursing institutions, nurses, and
other health professionals and medical centers
appropriate educational materials (including short
courses) on the medical surveillance, screening, and
methods of prevention, diagnosis, and treatment of
injury or disease related to exposure to hazardous
substances (giving priority to those listed under
paragraph (2)) through means the Administrator of ATSDR
considers appropriate; and
(B) assemble, develop as necessary, and distribute to
the general public and to at-risk populations
appropriate educational materials and other information
on human health effects of hazardous substances.
[(15)] (15) Grants, Contracts, and Community Assistance.--
(A) 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)] grants, cooperative agreements, or contracts with
States (or political subdivisions thereof), other appropriate
public authorities, public or private institutions, colleges,
universities, and professional associations which 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.
(B) When a public health assessment is conducted at a
facility on the National Priorities List, or a facility is
being evaluated for inclusion on the National Priorities List,
the Administrator of ATSDR may provide the assistance specified
in this paragraph to public or private nonprofit entities,
individuals, and community-based groups that may be affected by
the release or threatened release of hazardous substances in
the environment.
(C) The Administrator of ATSDR, pursuant to the grants,
cooperative agreements, and contracts referred to in this
paragraph, is authorized and directed to provide, where
appropriate, diagnostic services, health data registries, and
preventative public health education to communities affected by
the release of hazardous substances.
(16) Personnel.--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) Authorities.--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) Pollutants and Contaminants.--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) Peer Review Committee.--The Administrator of ATSDR shall
establish an external peer review committee of qualified health
scientists who serve for fixed periods and meet periodically
to--
(A) provide guidance on initiation of studies;
(B) assess the quality of study reports funded by the
agency; and
(C) provide guidance on effective and objective risk
characterization and communication.
The peer review committee may include additional specific
experts representing a balanced group of stakeholders on an ad
hoc basisfor specific issues. Meetings of the committee should
be open to the public.
* * * * * * *
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). 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:
(1) * * *
* * * * * * *
(8)(A) * * *
(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, subject to subsection
(h), 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) Hazard Ranking System.--
(1) * * *
* * * * * * *
(5) Risk prioritization.--In setting priorities under
subsection (a)(8), the President shall place highest
priority on facilities with releases of hazardous
substances which result in actual ongoing human
exposures at levels of public health concern or
demonstrated adverse health effects as identified in a
public health assessment conducted by the Agency for
Toxic Substances and Disease Registry or are reasonably
anticipated based on currently known facts.
(6) Prior response action.--Any evaluation under this
section shall take into account all prior response
actions taken at a facility.
* * * * * * *
(h) Additions to NPL.--(1) The President may add a facility
to the National Priorities List only after requesting and
obtaining the concurrence of the Governor of the State in which
the facility is located. If the Governor assures the President
that the State is addressing, or will address, the site under
State authority, and the Governor does not concur in the
listing of the site, the President shall not list the site.
(2) Notwithstanding paragraph (1), the President may add a
facility to the National Priorities List if--
(A) the release or threatened release affects public
health or the environment in more than one State,
unless the Governors of each such State fail to concur,
upon request by the President, in the listing of the
site; or
(B) the President finds that the State where the
facility is located is a major potentially responsible
party at that facility.
* * * * * * *
liability
Sec. 107. (a) Notwithstanding any other provision or rule of
law, and subject only to the defenses set forth in subsection
(b) of this section--
(1) the owner [and] or operator of a vessel or a
facility,
* * * * * * *
(4) any person who accepts or accepted any hazardous
substances for transport to disposal or treatment
facilities, incineration vessels or sites selected [by
such person, from which there is a release, or a
threatened release which causes the incurrence of
response costs, of a hazardous substance, shall be
liable for--] by such person--
from which there is a release, or a threatened release, that
causes the incurrence of response costs, of a hazardous
substance, shall be liable for--
(A) all costs of removal or remedial action
incurred by the United States Government or a
State or an Indian tribe not inconsistent with
the national contingency plan;
(B) any [other] necessary costs of response
incurred by any [other] person, other than the
United States, a State, or an Indian tribe,
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).
(5) The amounts recoverable in an action under this
section shall include interest on the amounts
recoverable under subparagraphs (A) through (D). Such
interest shall accrue from the later of (i) the date
payment of a specified amount is demanded in writing,
or (ii) the date of the expenditure concerned. The rate
of interest on the 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.
[(b) There shall be] (b) Defenses to Liability.--
(1) In general.--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)] (A) an act of God;
[(2)] (B) an act of war;
[(3)] (C) 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 for carriage by a common
carrier by rail), if the defendant establishes
by a preponderance of the evidence that (a) he
exercised due care with respect to the
hazardous substance concerned, taking into
consideration the characteristics of such
hazardous substance, in light of all relevant
facts and circumstances, and (b) 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
[(4)] (D) any combination of the foregoing
paragraphs.
(2) Liability relief for innocent parties.--
(A) Recipients of property by inheritance or
bequest.--There shall be no liability under
subsection (a) for a person whose liability is
based solely on the person's status as an owner
or operator of a facility or vessel and who can
establish by a preponderance of the evidence
that the person meets the requirements of
paragraph (4) and that the person acquired the
property by inheritance or bequest.
(B) Recipients of property by charitable
donation.--Liability under subsection (a) shall
be limited to the lesser of the fair market
value of the facility or vessel and the actual
proceeds of the sale of the facility for a
person whose liability is based solely on the
person's status as an owner or operator of the
facility or vessel and who can establish by a
preponderance of the evidence that the person
meets the requirements of paragraph (4) and
that the person holding title, either outright
or in trust, to the vessel or facility is an
organization described in section 501(c)(3) of
the Internal Revenue Code of 1986 and exempt
from tax under section 501(a) of such Code and
holds such title as a result of a charitable
donation that qualifies under section 170,
2055, or 2522 of such Code.
(C) Owners or operators of rights-of-way.--
There shall be no liability under subsection
(a) for a person whose liability is based
solely on ownership or operation of a road,
street, pipeline, or other right-of-way,
easement, or public transportation route (other
than railroad rights-of-way and railroad
property) over which hazardous substances are
transported or otherwise are present if such
person can establish by a preponderance of the
evidence that the person did not, by any act or
omission, cause or contribute to the release or
threatened release.
(D) Railroad owners or operators of spur
track.--There shall be no liability under
subsection (a) for a person whose liability is
based solely on the status of the person as a
railroad owner or railroad 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 the
railroad owner or operator can establish by a
preponderance of the evidence that--
(i) the spur track provides access to
a main line or branch line track that
is owned or operated by the railroad
owner or operator;
(ii) the spur track is 10 miles long
or less; and
(iii) the railroad owner or operator
did not cause or contribute to a
release or threatened release of the
hazardous substances for which
liability is alleged under subsection
(a).
(E) Construction contractors.--There shall be
no liability under subsection (a) for a person
who is a construction contractor (other than a
response action contractor covered by section
119) if such person can establish by a
preponderance of the evidence that--
(i) the person's liability is based
solely on construction activities that
were specifically directed by and
carried out in accordance with a
contract with an owner or operator of
the facility;
(ii) the person did not know or have
reason to know of the presence of
hazardous substances at the facility
concerned before beginning construction
activities; and
(iii) the person exercised
appropriate care with respect to the
hazardous substances discovered in the
course of performing the construction
activity, including precautions against
foreseeable acts of third parties,
taking into consideration the
characteristics of such hazardous
substances, in light of all
relevantfacts, circumstances, and generally accepted good commercial
and customary standards and practices at the time of the person's acts
or omissions.
(3) Appropriate care.--
(A) Site-specific basis.--The determination
whether or not a person has exercised
appropriate care with respect to hazardous
substances within the meaning of paragraph
(4)(C) shall be made on a site-specific basis
taking into consideration the characteristics
of the hazardous substances, in light of all
relevant facts, circumstances, and generally
accepted good commercial and customary
standards and practices at the time of the
defendant's acts or omissions.
(B) Safe harbor.--A person shall be deemed to
have exercised appropriate care within the
meaning of paragraph (4)(C) if--
(i) the person took 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, or
(ii) in any case in which the release
or threatened release of hazardous
substances is the subject of a response
action by persons authorized to conduct
the response action at the facility or
vessel, the person provides access for
and all reasonable cooperation with the
response action.
(4) Requirements.--The requirements referred to in
paragraph (2)(A) and (B) are that a person's liability
is based solely on the person's status as an owner or
operator of a facility or vessel and that the person
can establish by a preponderance of the evidence that--
(A) the person acquired the facility or
vessel after the disposal or placement of the
hazardous substances for which liability is
alleged under subsection (a);
(B) the person did not, by any act or
omission, cause or contribute to the release or
threatened release of such hazardous
substances; and
(C) the person exercised appropriate care
with respect to such hazardous substances.
(5) Treatment of non-liable parties.--The
Administrator shall seek to minimize the administrative
and legal burdens on parties that are not liable
pursuant to this section. To the extent practicable,
the Administrator shall--
(A) inform such parties that they are
exempted from liability pursuant to this
section, and offer them written assurances
establishing their exempt status; and
(B) eliminate or minimize any need for such
parties to retain legal counsel in connection
with administrative or legal proceedings
concerning the facility at issue.
(c)(1) * * *
* * * * * * *
(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.] up to three times the
amount of such response costs. 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.
* * * * * * *
[(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 of this Act when--
[(A) such facility and the owner and operator thereof
has complied with the requirements of subtitle C of the
Solid Waste Disposal Act and regulations issued
thereunder, which may affect the performance of such
facility after closure; and
[(B) such facility has been closed in accordance with
such 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 five years after
closure to demonstrate that there is no substantial
likelihood that any migration offsite or release from
confinement of any hazardous substance or other risk to
public health or welfare will occur.
[(2) Such transfer of liability shall be effective ninety
days after the owner or operator of such facility notifies the
Administrator of the Environmental Protection Agency (and the
State where it has an authorized program under section 3006(b)
of the Solid Waste Disposal Act) that the conditions imposed by
this subsection have been satisfied. If within such ninety-day
period the Administrator of the Environmental Protection Agency
or such State determines that any such facility has not
complied with all the conditions 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 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.
[(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 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 byregulations 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
greatestextent 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.]
* * * * * * *
(o) Innocent Landowners.--
(1) Conduct of environmental assessment.--A person
who has acquired real property shall have made all
appropriate inquiry within the meaning of subparagraph
(B) of section 101(35) if he establishes that, within
180 days prior to the time of acquisition, an
environmental site assessment of the real property was
conducted that meets the requirements of this
subsection.
(2) Definition of environmental site assessment.--For
purposes of this subsection, the term ``environmental
site assessment'' means an assessment conducted in
accordance with the standards set forth in the American
Society for Testing and Materials (ASTM) Standard
E1527-94, titled ``Standard Practice for Environmental
Site Assessments: Phase I Environmental Site Assessment
Process'' or with alternative standards issued by rule
by the Administrator or promulgated or developed by
others and designated by rule by the Administrator.
Before issuing or designating alternative standards,
the Administrator shall first conduct a study of
commercial and industrial practices concerning
environmental site assessments in the transfer of real
property in the United States. Any such standards
issued or designated by the Administrator shall also be
deemed to constitute commercially reasonable and
generally accepted standards and practices for purposes
of this paragraph. In issuing or designating any such
standards, the Administrator shall consider
requirements governing each of the following:
(A) Interviews of owners, operators, and
occupants of the property to determine
information regarding the potential for
contamination.
(B) Review of historical sources as necessary
to determine previous uses and occupancies of
the property since the property was first
developed. For purposes of this subparagraph,
the term ``historical sources'' means any of
the following, if they are reasonably
ascertainable: recorded chain of title
documents regarding the real property,
including all deeds, easements, leases,
restrictions, and covenants, aerial
photographs, fire insurance maps, property tax
files, USGS 7.5 minutes topographic maps, local
street directories, building department
records, zoning/land use records, and any other
sources that identify past uses and occupancies
of the property.
(C) Determination of the existence of
recorded environmental cleanup liens against
the real property which have arisen pursuant to
Federal, State, or local statutes.
(D) Review of reasonably ascertainable
Federal, State, and local government records of
sites or facilities that are likely to cause or
contribute to contamination at the real
property, including, as appropriate,
investigation reports for such sites or
facilities; records of activities likely to
cause or contribute to contamination at the
real property, including landfill and other
disposal location records, underground storage
tank records, hazardous waste handler and
generator records and spill reporting records;
and such other reasonably ascertainable
Federal, State, and local government
environmental records which could reflect
incidents or activities which are likely to
cause or contribute to contamination at the
real property.
(E) A visual site inspection of the real
property and all facilities and improvements on
the real property and a visual inspection of
immediately adjacent properties, including an
investigation of any hazardous substance use,
storage, treatment, and disposal practices on
the property.
(F) Any specialized knowledge or experience
on the part of the defendant.
(G) The relationship of the purchase price to
the value of the property if uncontaminated.
(H) Commonly known or reasonably
ascertainable information about the property.
(I) The obviousness of the presence or likely
presence of contamination at the property, and
the ability to detect such contamination by
appropriate investigation.
A record shall be considered to be ``reasonably
ascertainable'' for purposes of this paragraph if a
copy or reasonable facsimile of the record is publicly
available by request (within reasonable time and cost
constraints) and the record is practically reviewable.
(3) Maintenance of information.--No presumption shall
arise under paragraph (1) unless the defendant has
maintained ya compilation of the information reviewed
and gathered in the course of the environmental site assessment.
(p) Bona Fide Prospective Purchaser.--(1) Notwithstanding
paragraphs (1) through (4) of subsection (a), a person who does
not impede the performance of a response action or natural
resource restoration at a facility shall not be liable to the
extent liability at such facility is based solely on paragraph
(1) of subsection (a) for a release or threat of release from
the facility, and the person is a bona fide prospective
purchaser of the facility.
(2) For purposes of this subsection, the term ``bona fide
prospective purchaser'' means a person who acquires ownership
of a facility after the date of enactment of this subsection,
or a tenant of such a person, who can establish each of the
following by a preponderance of the evidence:
(A) All active disposal of hazardous substances at
the facility occurred before that person acquired the
facility.
(B) The person made all appropriate inquiry into the
previous ownership and uses of the facility and its
real property in accordance with generally accepted
commercial and customary standards and practices.
Standards described in subsection (o)(2) (relating to
innocent landowners) shall satisfy the requirements of
this subparagraph. In the case of property for
residential or other similar use, purchased by a
nongovernmental or noncommercial entity, a site
inspection and title search that reveal no basis for
further investigation satisfy the requirements of this
subparagraph.
(C) The person provided all legally required notices
with respect to the discovery or release of any
hazardous substances at the facility.
(D) The person exercised appropriate care with
respect to hazardous substances found at the facility
by taking reasonable steps to stop on-going releases,
prevent threatened future releases of hazardous
substances, and prevent or limit human or natural
resource exposure to hazardous substances previously
released into the environment.
(E) The person provides full cooperation, assistance,
and facility access to persons authorized to conduct
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.
(F) The person is not affiliated with any other
person liable for 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.
(q) Prospective Purchaser and Windfall Lien.--(1) In any case
in which there are unrecovered response costs at a facility for
which an owner of the facility is not liable by reason of
subsection (p), and the conditions described in paragraph (2)
are met, the United States shall have a lien upon such facility
for such unrecovered costs. Such lien--
(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 property;
(B) shall arise at the time costs are first incurred
by the United States with respect to a response action
at the facility;
(C) shall be subject to the requirements for notice
and validity established in paragraph (3) of subsection
(l); and
(D) shall continue until the earlier of satisfaction
of the lien or recovery of all response costs incurred
at the facility.
(2) The conditions referred to in paragraph (1) are the
following:
(A) A response action for which there are unrecovered
costs is carried out at the facility.
(B) Such response action increases the fair market
value of the facility above the fair market value of
the facility that existed within 6 months before the
response action was taken.
(r) Innocent Governmental Entities.--There shall be no
liability under subsection (a) for any State or local
government if such liability is based solely on--
(1) the granting of a license or permit to conduct
business; or
(2) the State or local government's status as an
owner or operator of the facility or vessel, and the
State or local government--
(A) acquired the facility or vessel by
escheat or through any other involuntary
transfer or through the exercise of eminent
domain, and
(B) establishes by a preponderance of the
evidence that it--
(i) acquired the facility or vessel
after the disposal or placement of the
hazardous substances for which
liability is alleged;
(ii) did not, by any act or omission,
cause or contribute to the release or
threatened release of such hazardous
substances; and
(iii) exercised appropriate care with
respect to such hazardous substances
taking into consideration the
characteristics of such hazardous
substances, in light of all relevant
facts, circumstances, and generally
accepted good commercial and customary
standards and practices at the time of
the defendant's acts or omissions.
(s) Contiguous Properties.--(1) A person (other than the
United States or a department, agency, or instrumentality of
the United States) who 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 such release shall not be liable under
paragraph (1) or 2 of subsection (a) by reason of such
ownership or operation solely by reason of such contamination
if such person--
(A) did not cause, contribute to, or consent to the
release or threatened release;
(B) provides full cooperation, assistance, and
facility access to persons authorized to conduct
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
(C) is not affiliated with any other person liable
for response costs at the facility, through any direct
or indirect familial relationship, or any contractual,
corporate, or financial relationship.
(2) The President may issue an assurance of no enforcement
action under this Act to any such person and may grant any such
person protection against cost recovery and contribution
actions pursuant to section 113(f)(2). Such person may also
petition the President to exclude from the description of a
National Priorities List site such contiguous real property, if
such property is or may be contaminated solely by ground water
that flows under such property and is not used as a source of
drinking water. The President may grant such a petition
pursuant to such procedures as he deems appropriate.
(t) Limitation on Liability for Small Businesses.--
(1) In general.--With respect to actions taken before
September 29, 1999, no small business concern shall be
liable under subsection (a)(3) or (a)(4) for response
costs or damages at a facility or vessel on the
National Priorities List.
(2) Limitation.--Paragraph (1) shall not apply to an
action brought by the President against a small
business concern if the hazardous substances
attributable to the small business concern have
contributed, or contribute, significantly to the costs
of the response action at the facility.
(3) Small business concern defined.--In this
subsection, the term ``small business concern'' means a
business entity that on average over the previous 3
years preceding the date of notification by the
President that the business entity is a potentially
responsible party--
(A) has no more than 75 full-time employees
or the equivalent thereof; and
(B) has $3,000,000 or less in gross revenues.
(u) Liability Exemptions and Limitations for Municipal Solid
Waste and Sewage Sludge.--
(1) Pre-enactment activities.--
(A) In general.--Except as provided in
subparagraph (B), no person shall be liable
under subsection (a)(3) or (a)(4) for response
costs or damages at a landfill facility on the
National Priorities List to the extent that the
person arranged or transported municipal solid
waste or municipal sewage sludge prior to the
date of enactment of this paragraph for
disposal at the landfill facility.
(B) Exception.--Notwithstanding subparagraph
(A), if the President determines that a person
transported material containing municipal solid
waste or municipal sewage sludge to a landfill
facility that has contributed, or contributes,
significantly to the costs of response at the
facility and such person is engaged in the
business of transporting waste materials, such
person may be liable under subsection (a)(4).
The liability of such person shall be subject
to the aggregate limits on liability for
municipal solid waste set forth in paragraph
(2). Any determination of such person's
equitable share of response costs shall be
determined on the basis of such person's
equitable share of the aggregate amount of
response costs attributable to municipal solid
waste under paragraph (2).
(2) Post-enactment activities.--
(A) In general.--To the extent that a person
or group of persons is liable under subsection
(a)(3) or (a)(4) for arranging or transporting
municipal solid waste or municipal sewage
sludge for disposal at a landfill facility on
the National Priorities List on or after the
date of enactment of this paragraph, and is not
exempt from liability under paragraph (3), the
total aggregate liability for all such persons
or groups of persons for response costs at such
a landfill facility shall not exceed 10 percent
of such costs.
(B) Expedited settlements.--The President may
offer a person subject to a limitation on
liability under subparagraph (A) an expedited
settlement based on the average unit cost of
remediating municipal solid waste and municipal
sewage sludge in landfills in lieu of the
aggregate 10 percent limitation on liability
provided by subparagraph (A).
(3) Special rule.--No person shall be liable under
subsection (a)(3) or (a)(4) for response costs or
damages at a landfill facility on the National
Priorities List to the extent that--
(A) the materials that the person arranged or
transported for disposal consist of municipal
solid waste; 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 with respect to the facility;
(ii) a business entity that employs
no more than 100 paid individuals and
is a small business concern as defined
under the Small Business Act (15 U.S.C.
631 et seq.) from which was generated
all of the entity's municipal solid
waste with respect to the facility; or
(iii) an organization described in
section 501(c)(3) of the Internal
Revenue Code of 1986 and exempt from
tax under section 501(a) of such Code
if such organization employs no more
than 100 paid individuals at the
location from which was generated all
of the municipal solid waste
attributable to the organization with
respect to the facility.
(4) Mixed wastes.--Liability for wastes that do not
fall within the definition of municipal solid waste
under paragraph (5)(A) and are collected and disposed
of with municipal solid wastes shall be governed by
section 107(a) and any applicable exemptions or
limitations on liability without regard to the wastes
covered by paragraph (5)(A).
(5) Definitions.--In this section, the following
definitions apply:
(A) Municipal solid waste.--The term
``municipal solid waste'' means waste materials
generated by households, including single and
multifamily residences, and hotels and motels,
and waste materials generated by
commercial,institutional, and industrial sources, to the extent that
such materials--
(i) are essentially the same as waste
materials normally generated by
households, or
(ii) are collected and disposed of
with other municipal solid waste, and
contain hazardous substances that would
qualify for the de micromis exemption
under section 107(w).
The term includes food and yard waste, paper,
clothing, appliances, consumer product
packaging, disposable diapers, office supplies,
cosmetics, glass and metal food containers,
wooden pallets, cardboard, elementary or
secondary school science laboratory waste, and
household hazardous waste. The term does not
include combustion ash generated by resource
recovery facilities or municipal incinerators;
solid waste from the extraction, beneficiation,
and processing of ores and minerals; or waste
from manufacturing or processing operations
(including pollution control) that is not
essentially the same as waste normally
generated by households.
(B) Municipal sewage sludge.--The term
``municipal 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 (i) a
publicly owned treatment works, (ii) a
federally owned treatment works, or (iii) a
treatment works that, without regard to
ownership, would be considered to be a publicly
owned treatment works and is principally
treating municipal waste water or domestic
sewage.
(v) Municipal Owners and Operators.--
(1) In general.--A municipality that is liable for
response costs under paragraph (1) or (2) of subsection
(a) on the basis of ownership or operation of a
municipal landfill that is listed on the National
Priorities List on or before September 1, 1999 (as
identified by the President), shall be eligible for a
settlement under this subsection.
(2) Settlement amount.--(A) The President shall offer
a settlement to a party with respect to such liability
on the basis of a payment or other obligation
equivalent in value to no more than 20 percent of the
total response costs in connection with the facility.
The President may increase this percentage to no more
than 35 percent of the total response costs in
connection with the facility if the President
determines--
(i) the municipality exacerbated
environmental contamination or exposure with
respect to the facility; or
(ii) the municipality, during the period of
ownership or operation of the facility,
received operating revenues substantially in
excess of the sum of the waste system operating
costs plus 20 percent of total estimated
response costs in connection with the facility.
(B) Such a settlement shall pertain to only the
party's liability under paragraph (1) or (2) of
subsection (a).
(3) Performance of response actions.--Subject to the
limitations of paragraph (2), the President may
require, as a condition of a settlement with a
municipality under this subsection, that the
municipality perform, or participate in the performance
of, the response actions at the site.
(4) Joint ownership or operation.--A combination of 2
or more municipalities that jointly owned or operated
the facility at the same time or during continuous
operations under municipal control, shall be considered
a single owner/operator for the purpose of calculating
a settlement offer pursuant to this subsection.
(5) Waiver of claims.--The President may require, as
a condition of a settlement under this subsection, that
the municipality waive some or all of the claims or
causes of action that such municipality may have
against other potentially responsible parties relating
to the site, including claims for contribution under
section 113.
(6) Exceptions.--The President may decline to offer a
settlement under this subsection where the President
determines--
(A) there is only municipal solid waste or
sewage sludge at the facility;
(B) all other identified potentially
responsible parties are insolvent, defunct, or
eligible for a settlement under this subsection
or under section 122(g);
(C) the municipality has failed to comply
fully and completely with information requests,
administrative subpoenas, or discovery requests
issued by the United States; or
(D) the municipality has impeded or is
impeding, through action or inaction, the
performance of a response action or a natural
resource restoration with respect to the
facility.
(7) Expiration of offer.--The President's obligation
to offer a settlement under this section shall expire
if the municipality to which the offer is made fails to
accept such an offer within a reasonable time period.
(w) De Micromis Exemption.--
(1) In general.--In the case of a facility or vessel
listed on the National Priorities List, no person shall
be liable under subsection (a)(3) or (a)(4) if no more
than 110 gallons or 200 pounds of materials containing
hazardous substances at the facility or vessel is
attributable to such person, and the acts on which
liability is based took place before the date of
enactment of this subsection.
(2) Exception.--Paragraph (1) shall not apply in a
case in which the President determines that the
material described in paragraph (1) has contributed, or
contributes, significantly to the costs of response at
the facility.
(x) Ineligibility for Exemptions or Limitations.--
(1) Impeding response or restoration.--The exemptions
and limitations set forth in subsections (t), (u), (v),
and (w) and sections 114(c) and 128 shall not apply to
any person with respect to a facility if such person
impedes the performance of a response action or natural
resource restoration at the facility.
(2) Failure to respond to information request.--The
exemptions and limitations set forth in subsections
(t), (u), (v),and (w) and sections 114(c) and 128 shall
not apply to any person who--
(A) willfully fails to submit a complete and
timely response to an information request under
section 104(e); or
(B) knowingly makes any false or misleading
material statement or representation in any
such response.
(3) Failure to provide cooperation and facility
access.--The limitation set forth in subsection (v)
shall not apply to any owner or operator of a facility
who does not provide all reasonable cooperation and
facility access to persons authorized to conduct
response actions at the facility.
(y) Exempt Party Funding.--
(1) Exempt party funding.--Except as provided in
paragraph (2), the equitable share of liability under
section 107(a) for any release or threatened release of
a hazardous substance from a facility or vessel on the
National Priorities List that is extinguished through
an exemption or limitation on liability under
subsection (t), (u), or (v) of this section, section
114(c), or section 128 shall be transferred to and
assumed by the Trust Fund.
(2) Certain msw generators.--Paragraph (1) shall not
apply to the equitable share of liability of any person
who would have been liable under subsection (a)(3) or
(4) but for the exemption from liability under
subsection (u)(3).
(3) Source of funds.--Payments made by the Trust Fund
or work performed on behalf of the Trust Fund to meet
the obligations under paragraph (1) shall be funded
from amounts made available by section 111(a)(1).
(z) Effect on Concluded Actions.--The exemptions from, and
limitations on, liability provided under subsections (t), (u),
(v), and (w) and sections 114(c) and 128 shall not affect any
settlement or judgment approved by a United States District
Court not later than 30 days after the date of enactment of
this subsection or any administrative action against a person
otherwise covered by such exemption or limitation that becomes
effective not later than 30 days after such date of enactment.
(aa) Limitation on Recovery of Oversight Costs.--
(1) In general.--Costs of oversight of a response
action shall not be recoverable under this section from
a person referred to in paragraph (2) to the extent
that such costs exceed 10 percent of the costs of the
response action.
(2) Accounting of response costs.--Paragraph (1)
shall apply only to a person who provides the
Administrator with an accounting of the direct and
indirect costs that the person incurred in conducting
the response action. The Administrator may require an
independent audit of the costs from such person.
* * * * * * *
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, 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) 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.
[(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) (relating to public
participation grants for technical assistance).
[(6) Lead contaminated soil.--Payment of not to
exceed $15,000,000 for the costs of a pilot program for
removal, 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.
[(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, orbelonging 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 for each of
[(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 iscollected, 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.]
(a) Expenditures From Hazardous Substance Superfund.--
(1) Subsection (b) expenditures.--The following
amounts of amounts appropriated to the Hazardous
Substance Superfund after January 1, 2000, pursuant to
section 9507(b) of the Internal Revenue Code of 1986,
and of amounts credited under section 9602(b) of such
Code with respect to those appropriated amounts, shall
be available for the purposes specified in subsection
(b):
(A) $250,000,000 for fiscal year 2000.
(B) $250,000,000 for fiscal year 2001.
(C) $250,000,000 for fiscal year 2002.
(D) $250,000,000 for fiscal year 2003.
(E) $250,000,000 for fiscal year 2004.
Such funds shall remain available until expended.
(2) Subsections (c) and (d) expenditures.--There is
authorized to be appropriated from the Hazardous
Substance Superfund established pursuant to section
9507(b) of the Internal Revenue Code of 1986 for the
purposes specified in subsections (c) and (d) of this
section not more than the following amounts:
(A) $1,500,000,000 for fiscal year 2000.
(B) $1,500,000,000 for fiscal year 2001.
(C) $1,500,000,000 for fiscal year 2002.
(D) $1,400,000,000 for fiscal year 2003.
(E) $1,350,000,000 for fiscal year 2004.
(b) Payments Related to Certain Reductions, Limitations, and
Exemptions.--
(1) Funding of exempt party and fund share.--The
President may use amounts in the Fund made available by
subsection (a)(1) for funding the equitable share of
liability attributable to exempt parties under section
107(y) and obligations incurred by the President to pay
a Fund share or to reimburse parties for costs incurred
in excess of the parties' allocated shares under
section 129.
(2) Limitations.--
(A) Funding.--Amounts made available by
subsection (a)(1) for the purposes of this
subsection shall not exceed the following:
(i) $250,000,000 for fiscal year
2000.
(ii) $250,000,000 for fiscal year
2001.
(iii) $250,000,000 for fiscal year
2002.
(iv) $250,000,000 for fiscal year
2003.
(v) $250,000,000 for fiscal year
2004.
(B) Eligible costs.--No funds made available
under paragraph (1) may be used for payment of,
or reimbursement for, any portion of attorneys'
fees that do not constitute necessary costs of
response consistent the national contingency
plan.
(C) Additional purposes.--
(i) In general.--If, in any of fiscal
years 2000 through 2004, the
Administrator does not have available
for obligation for the purposes of
subsections (c) and (d) the amount
specified for the fiscal year in clause
(iii), the Administrator, subject to
clause (ii), may use funds provided
under subsection (a)(1) for such
purposes.
(ii) Limitation.--The total amount of
funds provided under subsection (a)(1)
that the Administrator may use for the
purposes of subsections (c) and (d) may
not exceed the amount specified for the
fiscal year in clause (iii) less the
amount which (but for this
subparagraph) would be available to the
Administrator in such fiscal year for
such purposes.
(iii) Amounts.--The amounts specified
in this clause are $1,500,000,000 for
each of fiscal years 2000 through 2002,
$1,400,000,000 for fiscal year 2003,
and $1,350,000,000 for fiscal year
2004.
(c) Response, Removal, and Remediation.--The President may
use amounts in the Fund appropriated under subsection (a)(2)
for costs of response, removal, and remediation (and
administrative costs directly related to such costs), including
the following:
(1) Government response costs.--Payment of
governmental response costs incurred pursuant to
section 104, including costs incurred pursuant to the
Intervention on the High Seas Act (33 U.S.C. 1471 et
seq.).
(2) Private response cost claims.--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 105, if such
costs are approved under such plan, are reasonable in
amount based on open and free competition or fair
market value for similar available goods and services,
and are certified by the responsible Federal official.
(3) 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).
(4) State and local government reimbursement.--
Reimbursement to States and local governments under
section 123; except that during any fiscal year not
more than 0.1 percent of the total amount appropriated
under subsection (a)(2) may be used for such
reimbursements.
(5) Contracts and cooperative agreements.--Payment
for the implementation of any contract or cooperative
agreement under section 104(d).
(d) Administration, Oversight, Research, and Other Costs.--
The President may use amounts in the Fund appropriated under
subsection (a)(2) for the following costs (and administrative
costs directly related to such costs):
(1) Investigation and enforcement.--The costs of
identifying, investigating, and taking enforcement
action against releases of hazardous substances.
(2) Overhead.--
(A) In general.--The costs of providing
services, equipment, and other overhead related
to the purposes of this Act and section 311 of
the Federal Water Pollution Control Act and
needed to supplement equipment and services
available through contractors and other non-
Federal entities.
(B) Damage assessment capability.--The costs
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.
(3) Employee safety programs.--The cost of
maintaining programs otherwise authorized by this Act
to protect the health and safety of employees involved
in response to hazardous substance releases.
(4) Grants for technical assistance.--The cost of
grants under section 117(e) (relating to public
participation grants for technical assistance).
(5) ATSDR activities.--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, public
health assessments, and other activities authorized by
section 104(i).
(6) 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).
(7) 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.
(8) Research, development, and demonstration costs
under section 311.--The cost of carrying out section
311 (relating to research, development, and
demonstration).
(9) Awards under section 109.--The costs of any
awards granted under section 109(d) (relating to
providing information concerning violations).
(10) Comprehensive state ground water protection
plans.--Costs of providing assistance to States to
develop comprehensive State ground water protection
plans to the extent such costs do not exceed $3,000,000
in the aggregate in a fiscal year.
(e) Other Limitations.--
(1) Limitations on payments of claims.--Claims
against or presented to the Fund shall not be valid or
paid in excess of the total unobligated balance in the
Fund at any one time. Such claims become valid and are
payable 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) Remedial actions at federally owned facilities.--
No money in the Fund shall be available for costs of
remedial action, other than costs specified in
subsection (d), 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 ground water
contamination outside the boundaries of a federally
owned facility in which the federally owned facility is
not the only potentially responsible party.
(3) Remedial actions at facilities not listed on
npl.--No money in the Fund shall be available for
response actions that are not removal actions under
section 101(23) with respect to any facility that is
not listed on the National Priorities List.
* * * * * * *
[(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.]
* * * * * * *
[(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 section311(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).]
* * * * * * *
(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) of the Hazardous
Substance Response Revenue Act of 1980) as has not been
appropriated before the beginning of the fiscal year
involved.]
(1) In general.--There is authorized to be
appropriated, out of any money in the Treasury not
otherwise appropriated, to the Hazardous Substance
Superfund such sums as may be necessary for each of
fiscal years 2000 through 2004.
* * * * * * *
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)] 111(c) 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.
* * * * * * *
[(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.]
* * * * * * *
relationship to other law
Sec. 114. (a) * * *
* * * * * * *
(c) Recycled Oil.--
(1) Service station 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 for any
response costs or damages resulting from a release or
threatened release of recycled oil, or use the
authority of section 106 against a service station
dealer other than a person described in subsection
(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.] authorities
that were in effect on the date of such
activity.
* * * * * * *
(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] is
presumed to be 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.]
(A) has been removed from the engine of a
light duty motor vehicle or household appliance
by the owner of such vehicle or appliance and
is presented by such owner to the dealer for
collection, accumulation, and delivery to an
oil recycling facility; or
(B) has been removed from such an engine or
appliance by the dealer for collection,
accumulation, and delivery to an oil recycling
facility.
* * * * * * *
[(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.]
* * * * * * *
SEC. 117. PUBLIC PARTICIPATION AND DISCLOSURE.
(a) * * *
* * * * * * *
(f) Disclosure of Releases of Hazardous Substances at
Superfund Sites.--
(1) Information.--The President shall make the
following information available to the public as
provided in paragraph (2) about releases of hazardous
substances, pollutants, and contaminants from
facilities that have been listed or proposed for
listing on the National Priorities List at the
following stages of a response action:
(A) Removal actions.--A best estimate of the
releases from the facility before the removal
action is taken, during the period of the
removal action, and that are expected after the
removal action is completed.
(B) Remedial investigation.--As part of the
requirements for the remedial investigation, a
summary and best estimate of the releases from
the facility.
(C) Feasibility study.--As part of the
feasibility study, a summary and best estimate
of the releases that are expected both during
and at the conclusion of each remedial option
that is considered.
(D) Record of decision.--As part of the
record of decision, a summary and best estimate
of the releases that are expected both during
and at the conclusion of implementation of the
selected remedy.
(E) Construction completion.--After
construction of the remedy is complete and
during operation and maintenance, a best
estimate of the releases from the facility.
(2) Availability of information.--Information
provided under this subsection shall be made available
to the residents of the communities surrounding the
covered facility, to police, fire, and emergency
medical personnel in the surrounding communities, and
to the general public. To improve access to such
information by Federal, State, and local governments
and researchers, such information may be provided to
the general public through electronic or other means.
Such information shall be expressed in common units and
a common format.
(3) Source of information and methods of
collection.--Nothing in this subsection shall require
the collection of any additional data beyond that
already collected as part of the response action. If
data are not readily available, the information
provided under this subsection shall be based on best
estimates.
* * * * * * *
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, under any other Federal law,
or under the law of any State or political subdivision
of a State 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. Notwithstanding the preceding sentence, this
section shall not apply in determining the liability of
a response action contractor under the law of any State
or political subdivision thereof if the State has
enacted a law determining the liability of a response
action contractor.
(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. Such conduct shall be evaluated based on
the generally accepted standards and practices in
effect at the time and place that the conduct occurred.
(b) Savings Provisions.--
(1) Liability of other persons.--The defense provided
by section [107(b)(3)] 107(b)(1)(C) 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.
(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. Any such agreement may apply to claims for
negligence arising under Federal law or under the law
of any State or political subdivision of a State.
* * * * * * *
(5) Limitations.--
(A) Liability covered.--Indemnification under
this subsection shall apply only to response
action contractorliability 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.
* * * * * * *
[SEC. 120. FEDERAL FACILITIES.]
SEC. 120. FEDERAL ENTITIES AND FACILITIES.
(a) Application of Act to Federal Government.--
[(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) Each department, agency, and
instrumentality of the executive, legislative, and
judicial branches of the United States shall be subject
to, and comply with, this Act and all other Federal,
State, interstate, and local requirements, both
substantive and procedural (including any requirement
for permits or reporting or any provision for
injunctive relief and such sanctions as may be imposed
by a court to enforce such relief), regarding response
or restoration actions related to the release or
potential release of hazardous substances, pollutants,
or contaminants in the same manner, and to the same
extent, as any nongovernmental entity is subject to
such requirements, including enforcement and liability
under sections 106 and 107 of this title and the
payment of reasonable service charges.
(B) The Federal, State, interstate, and local
substantive and procedural requirements referred to in
subparagraph (A) include, but are not limited to, all
administrative orders and all civil and administrative
penalties and fines, regardless of whether such
penalties and fines are punitive or coercive in nature
or are imposed for isolated, intermittent, or
continuing violations. The United States hereby
expressly waives any immunity otherwise applicable to
the United States with respect to any such substantive
or procedural requirement (including, but not limited
to, any injunctive relief, administrative order, or
civil or administrative penalty or fine referred to in
the preceding sentence or any reasonable service
charge).
(C) The reasonable service charges referred to in
this paragraph include, but are not limited to, fees or
charges assessed in connection with the processing and
issuance of permits, renewal of permits, amendments to
permits, review of plans, studies, and other documents,
and inspection and monitoring of facilities, as well as
any other nondiscriminatory charges that are assessed
in connection with a State, interstate, or local
response program.
(D) Neither the United States, nor any agent,
employee, or officer thereof, shall be immune or exempt
from any process or sanction of any State or Federal
court with respect to the enforcement of any injunctive
relief.
(E) No agent, employee, or officer of the United
States shall be personally liable for any civil penalty
under any Federal or State law regarding response or
restoration actions relating to the release or
potential release of hazardous substances, pollutants,
or contaminants, with respect to any act or omission
within the scope of their official duties. An agent,
employee, or officer of the United States shall be
subject to any criminal sanction (including, but not
limited to, any fine or imprisonment) under any such
Federal or State law, but no department, agency, or
instrumentality of the executive, legislative, or
judicial branch of the United States shall be subject
to any such sanction.
(F) The waiver of sovereign immunity provided in this
paragraph shall not apply to the extent a State law
would apply any standard or requirement to such Federal
department, agency, or instrumentality in a manner that
is more stringent than such standard or requirement
would be applied to any other person.
(G)(i) The Administrator may issue an order under
section 106 of this Act 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) No administrative order issued to such
department, agency, or instrumentality shall become
final until such department, agency, or instrumentality
has had the opportunity to confer with the
Administrator.
(iii) Unless a State law in effect on the date of
enactment of the KLand Recycling Act of 1999, or a
State constitution, requires the funds to be used in a
different manner, all funds collected by a State from
the Federal Government from penalties and fines imposed
for violation of any substantive or procedural
requirement referred to in subsection (a) of this
section 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.
(H) Each such department, agency, and instrumentality
shall have the right to contribution protection set
forth in section 113, when such department, agency, or
instrumentality resolves its liability 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 (other
than the indemnification requirements of section 119).
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.]
SEC. 121. CLEANUP STANDARDS.
(a) * * *
(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 to the
extent practicable, considering the nature and timing of
reasonably anticipated uses of land, water, and other
resources. The preferences for treatment or permanent solutions
in this paragraph shall not apply to a treatment option or
permanent solution that would increase risk to the community or
to workers' health. 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 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.
* * * * * * *
(d) Degree of Cleanup.--(1) * * *
(2)(A) With respect to any hazardous substance, pollutant or
contaminant that will remain onsite, if--
(i) * * *
* * * * * * *
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] Levels 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] where such
levels are relevant and appropriate under the circumstances of
the release or threatened release, considering the timing of
any reasonably anticipated use of water as drinking water and
reasonable points of compliance.
(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)] (i) there are known and projected points of
entry of such groundwater into surface water; and
[(II)] (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)] (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.
* * * * * * *
(g) Risk Assessment and Characterization Principles.--Risk
assessments and characterizations conducted for remedial
actions subject to this section, and for other significant
Federal actions under this Act, shall--
(1) provide scientifically objective assessments,
estimates, and characterizations which neither minimize
nor exaggerate the nature and magnitude of risks to
human health and the environment;
(2) be based on the best available scientific and
technical information, including data on
bioavailability and site-specific information; and
(3) be based on an analysis of the weight of the
scientific evidence that supports conclusions about a
problem's potential risk to human health and the
environment.
(h) Sensitive Subpopulations and Site-Specific Risk
Assessment.--The President shall use site-specific risk
assessment that meets the requirements of the principles set
forth in subsection (g) to--
(1) determine the nature and extent of risk to human
health and the environment;
(2) identify groups which are currently or would be
highly exposed or highly susceptible (A) to
contamination from the site based on current and
reasonably anticipated uses of land, water, and other
resources at or around the site, or (B) to risks
arising from implementation of a remedial option;
(3) assist in establishing remedial objectives for
the facility respecting releases or threatened
releases, and in identifying geographic areas or
exposure pathways of concern; and
(4) evaluate alternative remedial actions for the
facility to determine their risk reduction benefits and
assist in selecting the remedial action for the
facility that meets the criteria of paragraph (1) of
subsection (b).
(i) Study of Substances and Mixtures.--(1) The President
shall conduct a study of the cancer potency values of 12
hazardous substances listed under paragraph (2) of section
104(i) that are frequently found to pose significant risks at
National Priorities List facilities. The study may also include
a review of other health effects values. The President shall
not include a substance in the study under this subsection if
such substance is under scientific reevaluation pursuant to
title XIV of the Safe Drinking Water Act.
(2) The President shall make a scientifically objective
assessment of different methodologies for determining the
health effects of chemical mixtures at relevant doses based on
reasonable exposure scenarios at National Priorities List
facilities.
(3) For purposes of such study and assessments, within 30
days after the date of the enactment of this subsection, the
President shall obtain public comments on such study and
assessments. Not later than 15 months after the date of the
enactment of this subsection, the President shall publish a
draft of such assessments. After receiving such comments on
such draft assessments, and after external peer review, but
within 2 years after the date of the enactment of this
subsection, the President shall complete the study and publish
the assessments under this subsection. The publication of the
final assessments shall be considered final agency action.
(4) The study and assessments under this subsection shall
include a discussion, to the extent relevant, of both
laboratory and epidemiological data of sufficient quality which
finds, or fails to find, a significant correlation between
health risks and a potential toxin. Where conflicts among such
data appear to exist, or where animal data are used as a basis
to assess human health risks, the study and assessments shall
include discussion of differences in study designs, comparative
physiology, routes of exposure, bioavailability,
pharmacokinetics, and any other relevant and significant
factor.
(5) Where the study and assessment involve application of any
significant assumption, inference, or model, the President
shall--
(A) state the weight of scientific evidence
supporting a selection relative to other plausible
alternatives;
(B) fully describe any model used in the risk
assessment and make explicit the assumptions
incorporated in the model; and
(C) indicate the extent to which any significant
model has been validated by, or conflicts with,
empirical data.
(6) To the extent scientifically appropriate, the President
shall include, among other estimates or health effects values,
estimates of risks or health effects values, using the most
plausible assumptions, given the weight of the scientific
information available to the President. Where significant
assumptions have substantially similar scientific support, the
President shall provide a description of the range of estimates
or values.
(j) Presentation of Risk Information.--(1) The President, in
carrying out his responsibilities under this Act, shall ensure
that the presentation of information on risk is unbiased and
informative. The results of any facility-specific risk
evaluation shall contain an explanation that clearly
communicates the risks at the facility, and shall--
(A) identify and explain all significant assumptions
used in the evaluation, as well as alternative
assumptions, the policy or value judgments used in
choosing the assumptions, and whether empirical data
conflict with or validate the assumptions;
(B) present, to the extent feasible--
(i) the scientifically objective distribution
of exposure estimates,
(ii) estimates, including estimates, of
exposure and risk using the most plausible
assumptions given the weight of current
scientific information available to the
President,
(iii) groups identified through site specific
risk assessment which are currently or would be
highly exposed or highly susceptible (I) to
contamination from the site based on current
and reasonably anticipated uses of land, water,
and other resources at or around the site, or
(II) to risks arising from implementation of a
remedial option, and
(iv) a statement of the nature and magnitude
of the scientific uncertainties associated with
such estimates;
(C) include the size of the population potentially at
risk from releases from the facility (based on the
current or reasonably anticipated future uses of the
land, water, or other resources), the exposure scenario
used for each estimate, and the likelihood that such
potential exposures will occur; and
(D) compare risks with estimates of greater, lesser,
and substantially equivalent risks that are familiar to
and routinely encountered by the general public as well
as other risks, and, where appropriate and meaningful,
comparison of those risks with other similar risks
regulated by Federal agencies resulting from comparable
activities and exposure pathways.
Comparisons under subparagraph (D) should consider relevant
distinctions among risks, such as the voluntary or involuntary
nature of risks.
(2) To the maximum extent practicable, documents made
available to the general public which purport to describe the
degree of risk to human health shall, at a minimum, provide
information specified in paragraph (1) or a meaningful
reference to such information in another document reasonably
available to the public.
SEC. 122. SETTLEMENTS.
(a) * * *
* * * * * * *
(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.
[(D) The response action has been approved by
the President.
[(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.]
(1) Final covenants.--The President shall offer
potentially responsible parties who enter into
settlement agreements that are in the public interest a
final covenant not to sue concerning any liability to
the United States under this Act, including a covenant
with respect to future liability, for response actions
or response costs addressed in the settlement, if all
of the following conditions are met:
(A) The settling party agrees to perform, or
there are other adequate assurances of the
performance of, a final remedial action
authorized by the Administrator for the release
or threat of release that is the subject of the
settlement.
(B) The settlement agreement has been reached
prior to the commencement of litigation against
the settling party under section 106 or 107 of
this Act with respect to this facility.
(C) The settling party waives all
contribution rights against other potentially
responsible parties at the facility.
(D) The settling party (other than a small
business) pays a premium that compensates for
the risks of remedy failure; future liability
resulting from unknown conditions; and
unanticipated increases in the cost of any
uncompleted response action, unless the
settling party is performing the response
action. The President shall have sole
discretion to determine the appropriate amount
of any such premium, and such determinations
are committed to the President's discretion.
The President has discretion to waive or reduce
the premium payment for persons who demonstrate
an inability to pay such a premium.
(E) The remedial action does not rely on
institutional controls to ensure continued
protection of human health and the environment.
(F) The settlement is otherwise acceptable to
the United States.
(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] response
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] response action that is
consistent with the National Contingency Plan
that does not include such offsite disposition
and has thereafter required offsite
disposition; or
* * * * * * *
[(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.]
(3) Discretionary covenants.--For settlements under
this Act for which covenants under paragraph (1) are
not available,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, if the covenant not to sue is in
the public interest. Such covenants shall be subject to the
requirements of paragraph (5). The President may include any conditions
in such covenant not to sue, including the additional condition
referred to in paragraph (5). In determining whether such conditions or
covenants are in the public interest, the President shall consider the
nature and scope of the commitment by the settling party under the
settlement, the effectiveness and reliability of the response action,
the nature of the risks remaining at the facility, the strength of
evidence, the likelihood of cost recovery, the reliability of any
response action or actions to restore, replace, or acquire the
equivalent of injured natural resources, the extent to which
performance standards are included in the order or decree, the extent
to which the technology used in the response action is demonstrated to
be effective, and any other factors relevant to the protection of human
health and the environment.
[(5)] (4) 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)] (5) Additional condition for future
liability.--(A) Except for the portion of the
[remedial] response action which is subject to a
covenant not to sue under paragraph [(2)] (1) or (2) or
under subsection (g) (relating to [de minimis
settlements] de minimis and other expedited settlements
pursuant to subsection (g) of this section), 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] that the response
action that is the subject of the settlement agreement
is selected.
(B) [In extraordinary circumstances, the] 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,], if
the agreement containing the covenant not to sue
provides for payment of a premium to address possible
remedy failure or any releases that may result from
unknown conditions, and 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. The President may waive or reduce the
premium payment for persons who demonstrate an
inability to pay such a premium.
[(g) De Minimis Settlements.--
[(1) Expedited final settlement.--Whenever
practicable and in the public interest, as determined
by the President, the President shall as promptly as
possible reach a final settlement with a potentially
responsible party in an administrative or civil action
under section 106 or 107 if such settlement involves
only a minor portion of the response costs at the
facility 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.
[(B) The potentially responsible party--
[(i) is the owner of the real
property on or in which the facility is
located;
[(ii) did not conduct or permit the
generation, transportation, storage,
treatment, or disposal of any hazardous
substance at the facility; and
[(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) 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.]
(g) Expedited Final Settlement.--
(1) Parties eligible for expedited settlement.--The
President shall, as promptly as possible, offer to
reach a final administrative or judicial settlement
with potentially responsible parties who, in the
judgment of the President, meet the following
conditions for eligibility for an expedited settlement
in subparagraph (A) or (B):
(A) The potentially responsible party's
individual contribution to the release of
hazardous substances at the facility as an
owner or operator, arranger for disposal, or
transporterfor disposal is de minimis. The
contribution of hazardous substance to a facility by a potentially
responsible party is de minimis if both of the following conditions are
met:
(i) The contribution of materials
containing hazardous substances that
the potentially responsible party
arranged or transported for treatment
or disposal, or that were treated or
disposed during the potentially
responsible party's period of ownership
or operation of the facility, is
minimal in comparison to the total
volume of materials containing
hazardous substances at the facility.
Such individual contribution is
presumed to be minimal if it is not
more than 1 percent of the total volume
of such materials, unless the
Administrator identifies a different
threshold based on site-specific
factors.
(ii) Such hazardous substances do not
present toxic or other hazardous
effects that are significantly greater
than those of other hazardous
substances at the facility.
(B)(i) The potentially responsible party is a
natural person, a small business, or a
municipality and can demonstrate to the United
States an inability or limited ability to pay
response costs. A party who enters into a
settlement pursuant to this subparagraph shall
be deemed to have resolved its liability under
this Act to the United States for all matters
addressed in the settlement.
(ii) For purposes of this subparagraph, the
following provisions apply:
(I) In the case of a small business,
the President shall take into
consideration the ability to pay of the
business, if requested by the business.
The term ``ability to pay'' means the
President's reasonable expectation of
the ability of the small business to
pay its total settlement amount and
still maintain its basic business
operations. Such consideration shall
include the business's overall
financial condition and demonstrable
constraints on its ability to raise
revenues.
(II) Any business requesting such
consideration shall promptly provide
the President with all relevant
information needed to determine the
business's ability to pay.
(III) If the President determines
that a small business is unable to pay
its total settlement amount
immediately, the President shall
consider alternative payment methods as
may be necessary or appropriate. The
methods to be considered may include
installment payments to be paid during
a period of not to exceed 10 years and
the provision of in-kind services.
(iii) Any municipality which is a potentially
responsible party may submit for consideration
by the President an evaluation of the potential
impact of the settlement on essential services
that the municipality must provide, and the
feasibility of making delayed payments or
payments over time. If a municipality asserts
that it has additional environmental
obligations besides its potential liability
under this Act, then the municipality may
create a list of the obligations, including an
estimate of the costs of complying with such
obligations.
(iv) Any municipality which is a potentially
responsible party may establish an inability to
pay through an affirmative showing that such
payment of its liability under this Act would
either--
(I) create a substantial demonstrable
risk that the municipality would
default on existing debt obligations,
be forced into bankruptcy, be forced to
dissolve, or be forced to make
budgetary cutbacks that would
substantially reduce current levels of
protection of public health and safety;
or
(II) necessitate a violation of legal
requirements or limitations of general
applicability concerning the assumption
and maintenance of fiscal municipal
obligations.
(v) This subparagraph does not limit or
affect the President's authority to evaluate
any person's ability to pay or to enter into
settlements with any person based on that
person's inability to pay.
(2) Basis of determination.--
(A) In general.--Any person who enters into a
settlement pursuant to this subsection shall
provide any information requested by the
President in accordance with section 104(e).
The determination of whether a person is
eligible for an expedited settlement shall be
made on the basis of all information available
to the President at the time the determination
is made.
(B) Decision of nonqualification; appeal.--
(i) Decision of nonqualification.--If
the President determines that a party
does not qualify for a settlement under
this subsection, the President shall
notify the party, in writing, within 90
days after the later of--
(I) a request by the party
for settlement under this
subsection; or
(II) the receipt of all
information required by the
President from the requesting
party to make a determination
under this paragraph,
stating the reasons for denial. If the
President does not notify the party
within such 90-day period, the request
is deemed denied.
(ii) Appeal.--
(I) In general.--
Notwithstanding any other
provision of this Act, a denial
of settlement under this
subsection may be appealed.
(II) Authority of
environmental appeals board.--
The Environmental Appeals Board
of the Environmental Protection
Agency is authorized to
adjudicate denials of
settlement under this
subsection. Within 60 days of
the date on which noticeof
denial is received, a denial of settlement may be appealed to the
Board. The Board may consider whether the President has followed the
provisions of this Act but shall not determine questions regarding
liability.
(III) Procedural rules.--In
any appeal made pursuant to
this clause, the documents
submitted by the requester
under clause (i)(II) are not
confidential. If a requester
agrees not to contest the share
of liability under section 107
assigned by the President, the
appeal shall include only a
determination of the
requester's ability to pay its
allocated share.
(C) Judicial procedures.--In reviewing a
proposed settlement under this subsection, a
United States district court shall give
deference to the President's determination that
the settlement is in the public interest and
meets applicable legal standards for court
approval. Any person who challenges a proposed
settlement bears the burden of proving that the
proposed settlement does not meet applicable
legal standards for court approval. If a
settlement is reached with a requester, the
confidential information supplied to the
President under this subsection may be
submitted under seal to the court for in camera
review.
(3) Additional factors relevant to settlements with
municipalities.--In any settlement with a municipality
pursuant to this Act, the President may take additional
equitable factors into account in determining an
appropriate settlement amount, including the limited
resources available to that party, and any in-kind
services that the party may provide to support the
response action at the facility. In considering the
value of in-kind services, the President shall consider
the fair market value of those services.
(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] $2,000,000 (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.]
(5) Small business defined.--In this section, the
term ``small business'' refers to any business entity
that employs no more than 100 individuals and is a
``small business concern'' as defined under the Small
Business Act (15 U.S.C. 631 et seq.).
* * * * * * *
(7) Deadline.--If the President does not make a
settlement offer to a small business on or before the
180th day following the date of the President's
determination that such small business is eligible for
an expedited settlement under this subsection, or on or
before the 180th day following the date of the
enactment of this paragraph, whichever is later, such
small business shall have no further liability under
this Act, unless the failure to make a settlement offer
on or before such 180th day is due to circumstances
beyond the control of the President.
(8) Premiums.--In any settlement under this Act with
a small business, the President may not require the
small business to pay any premium over and above the
small business's share of liability.
* * * * * * *
SEC. 127. BROWNFIELDS GRANTS.
(a) Definitions.--In this section, the following definitions
apply:
(1) Administrative cost.--The term ``administrative
cost'' does not include the cost of--
(A) site inventories;
(B) investigation and identification of the
extent of contamination;
(C) design and performance of a response
action; or
(D) monitoring of natural resources.
(2) Brownfield facility.--
(A) In general.--The term ``brownfield
facility'' means real property with respect to
which expansion, development, or redevelopment
is complicated by the presence or potential
presence of a hazardous substance.
(B) Excluded facilities.--The term
``brownfield facility'' does not include--
(i) any portion of real property that
is the subject of an ongoing removal or
planned removal under section 104;
(ii) any portion of real property
that is listed or has been proposed for
listing on the National Priorities
List;
(iii) any portion of real property
with respect to which a cleanup is
proceeding under a permit, an
administrative order, or a judicial
consent decree entered into by the
United States or an 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.);
(iv) a facility that is owned or
operated by a department, agency, or
instrumentality of the UnitedStates,
except a facility located on lands held in trust for an Indian tribe;
or
(v) a portion of a facility for which
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.
(3) Eligible entity.--
(A) In general.--The term ``eligible entity''
means--
(i) a State or a political
subdivision of a State, including--
(I) a general purpose unit of
local government; and
(II) a regional council or
group of general purpose units
of local government;
(ii) a redevelopment agency that is
chartered or otherwise sanctioned by a
State or other unit of government; and
(iii) an Indian tribe.
(B) Excluded entities.--The term ``eligible
entity'' does not include any entity that is
not in full compliance with the requirements of
an administrative order, judicial consent
decree, or closure plan under a permit which
has been issued or entered into by the United
States or an 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 the real property or
portion thereof which is the subject of the
order, judicial consent decree, or closure
plan.
(b) Brownfield Assessment Grant Program.--
(1) Establishment of program.--The President shall
establish a program to provide grants to eligible
entities for inventory and assessment of brownfield
facilities.
(2) Assistance for site assessment.--On approval of
an application made by an eligible entity, the
President may make grants to the eligible entity to be
used for developing an inventory and conducting an
assessment of 1 or more brownfield facilities.
(3) Applications.--
(A) In general.--Any eligible entity may
submit an application to the President, in such
form as the President may require, for a grant
under this subsection for 1 or more brownfield
facilities.
(B) Application requirements.--An application
for a grant under this subsection shall include
information relevant to the ranking criteria
established under paragraph (4) for the
facility or facilities for which the grant is
requested.
(4) Ranking criteria.--The President shall establish
a system for ranking grant applicationssubmitted under
this subsection that includes the following criteria:
(A) The demonstrated need for Federal
assistance.
(B) 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.
(C) The estimated extent to which a grant
would facilitate the identification of or
facilitate a reduction in health and
environmental risks.
(D) The potential to stimulate economic
development of the area, 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 potential of a grant to
create new or expand existing business
and employment opportunities on
completion of any necessary response
action.
(iii) The estimated additional tax
revenues expected to be generated by
economic redevelopment in the area in
which a brownfield facility is located.
(E) 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.
(F) The extent to which the site assessment
and subsequent development involves the active
participation and support of the local
community.
(5) Maximum grant amount per facility.--A grant made
to an eligible entity under this subsection shall not
exceed $200,000 with respect to any brownfield facility
covered by the grant.
(c) Brownfield Remediation Grant Program.--
(1) Establishment of program.--The President shall
establish a program to provide grants to eligible
entities to be used for capitalization of revolving
loan funds for remedial actions at brownfield
facilities.
(2) Assistance for site remediation.--Upon approval
of an application made by an eligible entity, the
President may make grants to the eligible entity to be
used for establishing a revolving loan fund. Any fund
established using such grants shall be used to make
loans to a State, a site owner, or a site developer for
the purpose of carrying out remedial actions at 1 or
more brownfield facilities.
(3) Applications.--
(A) In general.--Any eligible entity may
submit an application to the President, in such
form as the President may require, for a grant
under this subsection.
(B) Application requirements.--An application
under this section shall include information
relevant to the ranking criteria established
under paragraph (4).
(4) Ranking criteria.--The President shall establish
a system for ranking grant applications submitted under
this subsection that includes the following criteria:
(A) The adequacy of the financial controls
and resources of the eligible entity to
administer a revolving loan fund in accordance
with this title.
(B) The ability of the eligible entity to
monitor the use of funds provided to loan
recipients under this title.
(C) The ability of the eligible entity to
ensure that a remedial action funded by the
grant will be conducted under the authority of
a State cleanup program that ensures that the
remedial action is protective of human health
and the environment.
(D) The ability of the eligible entity to
ensure that any cleanup funded under this Act
will comply with all laws that apply to the
cleanup.
(E) The need of the eligible entity for
financial assistance to clean up brownfield
sites that are the subject of the application,
taking into consideration the financial
resources available to the eligible entity.
(F) The ability of the eligible entity to
ensure that the applicants repay the loans in a
timely manner.
(G) The plans of the eligible entity for
using the grant to stimulate economic
development or creation of recreational areas
on completion of the cleanup.
(H) The plans of the eligible entity for
using the grant to stimulate the availability
of other funds for environmental remediation
and subsequent redevelopment of the area in
which the brownfield facilities are located.
(I) The plans of the eligible entity for
using the grant to facilitate a reduction of
health and environmental risks.
(J) The plans of the eligible entity for
using the grant for remediation and subsequent
development that involve the active
participation and support of the local
community.
(5) Maximum grant amount.--A grant made to an
eligible entity under this subsection may not exceed
$1,000,000.
(d) General Provisions.--
(1) Prohibition.--No part of a grant under this
section may be used for the payment of penalties,
fines, or administrative costs.
(2) Audits.--The President shall audit an appropriate
number of grants made under subsections (b) and (c) to
ensure that funds are used for the purposes described
in this section.
(3) Agreements.--
(A) Terms and conditions.--Each grant made
under this section shall be subject to an
agreement that--
(i) requires the eligible entity to
comply with all applicable Federal and
State laws;
(ii) requires the eligible entity to
use the grant exclusively for the
purposes specified in subsection (b)(2)
or (c)(2);
(iii) in the case of an application
by a State under subsection (c)(3),
requires payment by the State of a
matching share, of at least 50 percent
of the amount of the grant, from other
sources of funding;
(iv) requires that grants under this
section will not supplant State or
local funds normally provided for the
purposes specified in subsection (b)(2)
or (c)(2); and
(v) contains such other terms and
conditions as the President determines
to be necessary to ensure proper
administration of the grants.
(B) Limitation.--The President shall not
place terms or conditions on grants made under
this section other than the terms and
conditions specified in subparagraph (A).
(4) 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, including other Federal
sources, but the grant shall be used only for the
purposes described in subsection (b)(2) or (c)(2).
(e) Approval.--
(1) Initial grant.--Before the expiration of the
fourth quarter of the first fiscal year following the
date of the enactment of this section, the President
shall make grants under this section to eligible
entities and States that submit applications, before
the expiration of the second quarter of such year, that
the President determines have the highest rankings
under the ranking criteria established under subsection
(b)(4) or (c)(4).
(2) Subsequent grants.--Beginning with the second
fiscal year following the date of enactment of this
section, the President shall make an annual evaluation
of each application received during the prior fiscal
year and make grants under this section to the eligible
entities and States that submit applications during the
prior year that the President determines have the
highest rankings under the ranking criteria established
under subsection (b)(4) or (c)(4).
(f) Authorization of Appropriations.--There is authorized to
be appropriated to carry out this section such sums as may be
necessary. Such funds shall remain available until expended.
SEC. 128. RECYCLING TRANSACTIONS.
(a) Liability Clarification.--(1) As provided in subsections
(b), (c), (d), and (e), a person who arranged for the recycling
of recyclable material shall not be liable under paragraph (3)
or (4) of section 107(a) with respect to such material.
(2) A determination whether or not any person shall be liable
under paragraph (3) or (4) of section 107(a) for any material
that is not a recyclable material as that term is used in
subsections (b), (c), (d), or (e) of this section shall be
made, without regard to subsection (b), (c), (d), or (e) of
this section.
(b) Recyclable Material Defined.--For purposes of this
section, the term ``recyclable material'' means scrap paper,
scrap plastic, scrap glass, scrap textiles, scrap rubber, scrap
metal, or spent lead-acid, spent nickel-cadmium, and other
spent batteries, as well as minor amounts of material incident
to or adhering to the scrap material as a result of its normal
and customary use prior to becoming scrap; except that such
term shall not include--
(1) shipping containers of a capacity from 30 liters
to 3,000 liters, whether intact or not, having any
hazardous substance (but not metal bits and pieces or
hazardous substance that forman integral part of the
container) contained in or adhering thereto; or
(2) any item of material that contained PCBs at a
concentration in excess of 50 ppm or any new standard
promulgated pursuant to applicable Federal laws.
(c) Transactions Involving Scrap Paper, Plastic, Glass,
Textiles, or Rubber.--
(1) In general.--Transactions involving recyclable
materials that consist of scrap paper, scrap plastic,
scrap glass, scrap textiles, or scrap rubber shall be
deemed to be arranging for recycling if the person who
arranged for the transaction (by selling recyclable
material or otherwise arranging for the recycling of
recyclable material) can demonstrate by a preponderance
of the evidence that all of the following criteria were
met at the time of the transaction:
(A) The recyclable material met a commercial
specification grade.
(B) A market existed for the recyclable
material.
(C) A substantial portion of the recyclable
material was made available for use as a
feedstock for the manufacture of a new saleable
product.
(D) The recyclable material could have been a
replacement or substitute for a virgin raw
material, or the product to be made from the
recyclable material could have been a
replacement or substitute for a product made,
in whole or in part, from a virgin raw
material.
(E) For transactions occurring on or after
the 90th day following the date of the
enactment of this section, the person exercised
reasonable care to determine that the facility
where the recyclable material would be handled,
processed, reclaimed, or otherwise managed by
another person (hereinafter in this section
referred to as a ``consuming facility'') was in
compliance with substantive (not procedural or
administrative) provisions of any Federal,
State, or local environmental law or
regulation, or compliance order or decree
issued pursuant thereto, applicable to the
handling, processing, reclamation, storage, or
other management activities associated with the
recyclable material.
(2) Reasonable care.--For purposes of this
subsection, ``reasonable care'' shall be determined
using criteria that include--
(A) the price paid in the recycling
transaction;
(B) 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 the recyclable material; and
(C) the result of inquiries made to the
appropriate Federal, State, or local
environmental agency (or 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 or
regulation, or compliance order or decree
issued pursuant thereto, applicable to the
handling, processing, reclamation, storage, or
other management activities associated with the
recyclable material.
(3) Treatment of certain requirements as substantive
provisions.--For purposes of this subsection, a
requirement to obtain a permit applicable to the
handling, processing, reclamation, or other management
activities associated with the recyclable materials
shall be deemed to be a substantive provision.
(d) Transactions Involving Scrap Metal.--
(1) In general.--Transactions involving recyclable
materials that consist of scrap metal shall be deemed
to be arranging for recycling if the person who
arranged for the transaction (by selling recyclable
material or otherwise arranging for the recycling of
recyclable material) can demonstrate by a preponderance
of the evidence that at the time of the transaction--
(A) the person met the criteria set forth in
subsection (c) with respect to the scrap metal;
(B) the person was in compliance with any
applicable regulations or standards regarding
the storage, transport, management, or other
activities associated with the recycling of
scrap metal that the Administrator issues under
the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.) after the date of the enactment of this
section and with regard to transactions
occurring after the effective date of such
regulations or standards; and
(C) the person did not melt the scrap metal
prior to the transaction.
(2) Melting of scrap metal.--For purposes of
paragraph (1)(C), melting of scrap metal does not
include the thermal separation of 2 or more materials
due to differences in their melting points (referred to
as ``sweating'').
(3) Scrap metal defined.--In this subsection, the
term ``scrap metal'' means--
(A) bits and pieces of metal parts (such as
bars, turnings, rods, sheets, and wire) or
metal pieces that may be combined together with
bolts or soldering (such as radiators, scrap
automobiles, and railroad box cars) which when
worn or superfluous can be recycled; and
(B) notwithstanding paragraph (1)(C), metal
byproducts of the production of copper and
copper based alloys that--
(i) are not the sole or primary
products of a secondary production
process,
(ii) are not produced separately from
the primary products of a secondary
production process,
(iii) are not and have not been
stored in a pile or surface
impoundment, and
(iv) are sold to another recycler
that is not speculatively accumulating
such byproducts,
except for any scrap metal that the Administrator
excludes from this definition by regulation.
(e) Transactions Involving Batteries.--
(1) In general.--Transactions involving recyclable
materials that consist of spent lead-acid batteries,
spent nickel-cadmiumbatteries, or other spent batteries
shall be deemed to be arranging for recycling if the person who
arranged for the transaction (by selling recyclable material or
otherwise arranging for the recycling of recyclable material) can
demonstrate by a preponderance of the evidence that at the time of the
transaction--
(A) the person met the criteria set forth in
subsection (c) with respect to the spent lead-
acid batteries, spent nickel-cadmium batteries,
or other spent batteries but did not recover
the valuable components of such batteries; and
(B)(i) with respect to transactions involving
lead-acid batteries, the person was in
compliance with applicable Federal
environmental regulations or standards, and any
amendments thereto, regarding the storage,
transport, management, or other activities
associated with the recycling of spent lead-
acid batteries;
(ii) with respect to transactions involving
nickel-cadmium batteries, Federal environmental
regulations or standards were in effect
regarding the storage, transport, management,
or other activities associated with the
recycling of spent nickel-cadmium batteries and
the person was in compliance with such
regulations or standards and any amendments
thereto; or
(iii) with respect to transactions involving
other spent batteries, Federal environmental
regulations or standards were in effect
regarding the storage, transport, management,
or other activities associated with the
recycling of such batteries and the person was
in compliance with such regulations or
standards and any amendments thereto.
(2) Recovery of valuable battery components.--For
purposes of paragraph (1)(A), a person who, by
contract, arranges or pays for processing of batteries
by an unrelated third person and receives from such
third person materials reclaimed from such batteries
shall not thereby be deemed to recover the valuable
components of such batteries.
(f) Exclusions.--
(1) In general.--The exemptions set forth in
subsections (c), (d), and (e) shall not apply 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 or for energy recovery
or incineration; or
(iii) for transactions occurring on
or before the 90th day following the
date of the enactment of this section,
the consuming facility was not in
compliance with a substantive (not a
procedural or administrative) provision
of any Federal, State, or local
environmental law or regulation, or
compliance order or decree issued
pursuant thereto, applicable to the
handling, processing, reclamation, or
other management activities associated
with the recyclable material;
(B) the person had reason to believe that
hazardous substances had been added to the
recyclable material for purposes other than
processing for recycling; or
(C) the person failed to exercise reasonable
care with respect to the management and
handling of the recyclable material (including
adhering to customary industry practices
current at the time of the recycling
transaction designed to minimize, through
source control, contamination of the recyclable
material by hazardous substances).
(2) Objectively reasonable basis.--For purposes of
paragraph (1)(A), an objectively reasonable basis for
belief shall be determined using criteria that include
the size of the person's business, customary industry
practices (including customary industry practices
current at the time of the recycling transaction
designed to minimize, through source control,
contamination of the recyclable material by hazardous
substances), the price paid in the recycling
transaction, and 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 the
recyclable material.
(3) Treatment of certain requirements as substantive
provisions.--For purposes of this subsection, a
requirement to obtain a permit applicable to the
handling, processing, reclamation, or other management
activities associated with recyclable material shall be
deemed to be a substantive provision.
(g) Effect on Owner Liability.--Nothing in this section shall
be deemed to affect the liability of a person under paragraph
(1) or (2) of section 107(a).
(h) Relationship to Liability Under Other Laws.--Nothing in
this section shall affect--
(1) liability under any other Federal, State, or
local statute or regulation promulgated pursuant to any
such statute, including any requirements promulgated by
the Administrator under the Solid Waste Disposal Act
(42 U.S.C. 6901 et seq.); or
(2) the ability of the Administrator to promulgate
regulations under any other statute, including the
Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).
(i) Limitation on Statutory Construction.--Nothing in this
section shall be construed to--
(1) affect any defenses or liabilities of any person
to whom subsection (a)(1) does not apply; or
(2) create any presumption of liability against any
person to whom subsection (a)(1) does not apply.
SEC. 129. ALLOCATION.
(a) Purpose of Allocation.--The purpose of an allocation
under this section is to determine an equitable allocation of
the costs of a removal or remedial action at a facility on the
National Priorities List that is eligible for an allocation
under this section, including the share to be borne by the
Trust Fund under subsection (i).
(b) Eligible Response Action.--
(1) In general.--A removal or remedial action is
eligible for an allocation under this section if the
action is at a facility on the National Priorities List
and if--
(A) the performance of the removal or
remedial action is not the subject of an
administrative order or consent decree as of
September 29, 1999;
(B) the President's estimate of the costs for
performing such removal or remedial action that
have not been recovered by the President as of
September 29, 1999, exceeds $2,000,000; and
(C) there are response costs attributable to
the Fund share under subsection (i).
(2) Excluded response actions.--
(A) Chain of title sites.--Notwithstanding
paragraph (1), a removal or remedial action is
not eligible for an allocation if--
(i) the facility is located on a
contiguous area of real property under
common ownership or control; and
(ii) all of the parties potentially
liable for response costs are current
or former owners or operators of such
facility,
unless the current owner of such facility is
insolvent or defunct.
(B) Current owner.--If the current owner of
the property on which the facility is located
is not liable under section 107(b)(2), the
owner immediately preceding such owner shall be
considered to be the current owner of the
property for purposes of subparagraph (A).
(C) Affiliated parties.--If the current owner
is affiliated with any other person through any
direct or indirect familial relationship or any
contractual, corporate, or financial
relationship other than that created by
instruments by which title to the facility is
conveyed or financed or by a contract for the
sale of goods or services, and such other
person is liable for response costs at the
facility, such other person's assets may be
considered assets of the current owner when
determining under subparagraph (A) whether the
current owner is insolvent or defunct.
(c) Discretionary Allocation Process.--Notwithstanding
subsection (b), the President may initiate an allocation under
this section for any removal or remedial action at a facility
listed on the National Priorities List and may provide a Fund
share under subsection (i).
(d) Allocation Process.--For each eligible removal or
remedial action, the President shall ensure that a fair and
equitable allocation of liability is undertaken at an
appropriate time by a neutral allocator selected by agreement
of the parties under such process or procedures as are agreed
by the parties. An allocation under this section shall apply to
subsequent removal or remedial actions for a facility unless
the allocator determines that the allocation should address
only one or more of such removal or remedial actions.
(e) Early Offer of Settlement.--As soon as practicable and
prior to the selection of an allocator, the President shall
provide an estimate of the aggregate Fund share in accordance
with subsection (i). The President shall offer to contribute to
a settlement of liability for response costs on the basis of
this estimate.
(f) Representation of the United States and Affected
States.--The Administrator or the Attorney General, as a
representative of the Fund, and a representative of any State
that is or may be responsible pursuant to section 104(c)(3) for
any costs of a removal or remedial action that is the subject
of an allocation shall be entitled to participate in the
allocation proceeding to the same extent as any potentially
responsible party.
(g) Moratorium on Litigation.--
(1) Moratorium on litigation.--No person may commence
any civil action or assert any claim under this Act
seeking recovery of any response costs, or contribution
toward such costs, in connection with any response
action for which the President has initiated an
allocation under this section, until 150 days after
issuance of the allocator's report or of a report under
this section.
(2) Stay.--If any action or claim referred to in
paragraph (1) is pending on the date of enactment of
this section or on the date of initiation of an
allocation, such action or claim (including any pendant
claim under State law over which a court is exercising
jurisdiction) shall be stayed until 150 days after the
issuance of the allocator's report or of a report under
this section, unless the court determines that a stay
will result in manifest injustice.
(3) Tolling of limitations period.--Any applicable
limitations period with respect to actions subject to
paragraph (1) shall be tolled from the earlier of--
(A) the date of listing of the facility on
the National Priorities List, where such
listing occurs after the date of enactment of
this section; or
(B) the commencement of the allocation
process pursuant to this section, until 180
days after the President rejects or waives the
President's right to reject the allocator's
report.
(h) Effect on Principles of Liability.--The allocation
process under this section shall not be construed to modify or
affect in any way the principles of liability under this title
as determined by the courts of the United States.
(i) Fund Share.--For each removal or remedial action that is
the subject of an allocation under this section, the allocator
shall determine the share of response costs, if any, to be
allocated to the Fund. The Fund share shall consist of the sum
of following amounts:
(1) The amount attributable to the aggregate share of
response costs that the allocator determines to be
attributable to parties who are not affiliated with any
potentially responsible party and whom the President
determines are insolvent or defunct.
(2) The amount attributable to the difference in the
aggregate share of response costs that the allocator
determines to be attributable to parties who have
resolved their liability to the United States under
section 122(g)(1)(B) (relating to limited ability to
pay settlements) for the removal or remedial action and
the amount actually assumed by those parties in any
settlement for the response action with the United
States.
(3) Except as provided in subsection (j), the amount
attributable to the aggregate share of response costs
that the allocator determines to be attributable to
persons who are entitled to an exemption from liability
under subsection (t) or (u) of section 107 or section
114(c) or 128 at a facility or vessel on the National
Priorities List.
(4) The amount attributable to the difference in the
aggregate share of response costs that an allocator
determines to be attributable to persons subject to a
limitation on liability under section 107(u) or 107(v)
and the amount actually assumed by those parties in
accordance with such limitation.
(j) Certain MSW Generators.--Notwithstanding subsection
(i)(3), the allocator shall not attribute any response costs to
any person who would have been liable under section 107(a)(3)
or 107(a)(4) but for the exemption from liability under section
107(u)(3).
(k) Unattributable Share.--The share attributable to the
aggregate share of response costs incurred to respond to
materials containing hazardous substances for which no
generator, transporter, or owner or operator at the time of
disposal or placement, can be identified shall be divided pro
rata among the potentially responsible parties and the Fund
share determined under subsection (i).
(l) Expedited Allocation.--At the request of the potentially
responsible parties or the United States, to assist in reaching
settlement, the allocator may, prior to reaching a final
allocation of response costs among all parties, first provide
an estimate of the aggregate Fund share, in accordance with
subsection (i), and an estimate of the aggregate share of the
potentially responsible parties.
(m) Settlement Before Allocation Determination.--
(1) Settlement of all removal or remedial costs.--A
group of potentially responsible parties may submit to
the allocator a private allocation for any removal or
remedial action that is within the scope of the
allocation. If such private allocation meets each of
the following criteria, the allocator shall promptly
adopt it as the allocation report:
(A) The private allocation is a binding
allocation of at least 80 percent of the past,
present, and future costs of the removal or
remedial action.
(B) The private allocation does not allocate
any share to any person who is not a signatory
to the private allocation.
(C) The signatories to the private allocation
waive their rights to seek recovery of removal
or remedial costs or contribution under this
Act with respect to the removal or remedial
action from any other party at the facility.
(2) Other settlements.--The President may use the
authority under section 122(g) to enter into settlement
agreements with respect to any response action that is
the subject of an allocation at any time.
(n) Settlements Based on Allocations.--
(1) In general.--Subject to paragraph (2), the
President shall accept an offer of settlement of
liability for response costs for a removal or remedial
action that is the subject of an allocation if--
(A) the offer is made within 90 days after
issuance of the allocator's report; and
(B) the offer is based on the share of
response costs specified by the allocator and
such other terms and conditions (other than the
allocated share of response costs) as are
acceptable to the President.
(2) Rejection of allocation report.--The requirement
of paragraph (1) to accept an offer of settlement shall
not apply if the Administrator and the Attorney General
reject the allocation report.
(o) Reimbursement for UAO Performance.--
(1) Reimbursement.--The Administrator shall enter
into agreements to provide mixed funding to reimburse
parties who satisfactorily perform, pursuant to an
administrative order issued under section 106, a
removal or remedial action eligible for an allocation
under subsection (b) for the reasonable and necessary
costs of such removal or remedial action to the extent
that--
(A) the costs incurred by a performing party
exceed the share of response costs assigned to
such party in an allocation that is performed
in accordance with the provisions of this
section;
(B) the allocation is not rejected by the
United States; and
(C) the performing party, in consideration
for such reimbursement--
(i) agrees not to contest liability
for all response costs not inconsistent
with the National Contingency Plan to
the extent of the allocated share;
(ii) receives no covenant not to sue;
and
(iii) waives contribution rights
against all parties who are potentially
responsible parties for the response
action, as well as waives any rights to
challenge any settlement the President
enters into with any other potentially
responsible party.
(2) Offset.--Any reimbursement provided to a
performing party under this subsection shall be subject
to equitable offset or reduction by the Administrator
upon a finding of a failure to perform any aspect of
the remedy in a proper and timely manner.
(3) Time of payment.--Any reimbursement to a
performing party under this subsection shall be paid
after work is completed, but no sooner than completion
of the construction of the remedial action and, subject
to paragraph (5), without any increase for interest or
inflation.
(4) Limit on amount of reimbursement.--The amount of
reimbursement under this subsection shall be further
limited as follows:
(A) Performing parties who waive their right
to challenge remedy selection at the end of the
moratorium following allocation shall be
entitled to reimbursement of actual dollars
spent by each such performing party in excess
of the party's share and attributable by the
allocator to the Fund share under subsection
(i).
(B) Performing parties who retain their right
to challenge the remedy shall be reimbursed (i)
for actual dollars spent by each such
performing party, but not to exceed 90 percent
of the Fund share, or (ii) an amount equal to
80 percent of the Fund share if the Fund share
is less than 20 percent of responsibility at
the site.
(5) Reimbursement of shares attributable to other
parties.--If reimbursement is made under this
subsection to a performing party for work in excess of
the performing party's allocated share that is not
attributable to the Fund share, the performing party
shall be entitled to all interest (prejudgment and post
judgment, whether recovered from a party or earned in a
site account) that has accrued on money recovered by
the United States from other parties for such work at
the time construction of the remedy is completed.
(6) Reimbursement claims.--The Administrator shall
require that all claims for reimbursement be supported
by--
(A) documentation of actual costs incurred;
and
(B) sufficient information to enable the
Administrator to determine whether such costs
were reasonable.
(7) Independent auditing.--The Administrator may
require independent auditing of any claim for
reimbursement.
(p) Post-Settlement Litigation.--Following expiration of the
moratorium periods under subsection (g), the United States may
request the court to lift the stay and proceed with an action
under this Act against any potentially responsible party that
has not resolved its liability to the United States following
an allocation, seeking to recover response costs that are not
recovered through settlements with other persons. All such
actions shall be governed by the principles of liability under
this Act as determined by the courts of the United States.
(q) Response Costs.--
(1) Description.--The following costs shall be
considered response costs for purposes of this Act:
(A) Costs incurred by the United States and
the court of implementing the allocation
procedure set forth in this section, including
reasonable fees and expenses of the allocator.
(B) Costs paid from amounts made available
under section 111(a)(1).
(2) Settled parties.--Any costs of allocation
described in paragraph (1)(A) and incurred after a
party has settled all of its liability with respect to
the response action or actions that are the subject of
the allocation may not be recovered from such party.
(r) Federal, State, and Local Agencies.--All Federal, State,
and local governmental departments, agencies, or
instrumentalities that are identified as potentially
responsible parties shall be subject to, and be entitled to the
benefits of, the allocation process and allocation
determination provided by this section to the same extent as
any other party.
(s) Source of Funds.--Payments made by the Trust Fund, or
work performed on behalf of the Trust Fund, to meet obligations
incurred by the President under this section to pay a Fund
share or to reimburse parties for costs incurred in excess of
the parties' allocated shares under subsections (e), (m), (n),
or (o) shall be funded from amounts made available by section
111(a)(1).
(t) Savings Provisions.--Except as otherwise expressly
provided, nothing in this section shall limit or affect the
following:
(1) The President's--
(A) authority to exercise the powers
conferred by sections 103, 104, 105, 106, 107,
or 122;
(B) authority to commence an action against a
party where there is a contemporaneous filing
of a judicial consent decree resolving that
party's liability;
(C) authority to file a proof of claim or
take other action in a proceeding under title
11, United States Code;
(D) authority to file a petition to preserve
testimony under Rule 27 of the Federal Rules of
Civil Procedure; or
(E) authority to take action to prevent
dissipation of assets, including actions under
chapter 176 of title 28, United States Code.
(2) The ability of any person to resolve its
liability at a facility to any other person at any time
before or during the allocation process.
(3) The validity, enforceability, finality, or merits
of any judicial or administrative order, judgment, or
decree issued, signed, lodged, or entered, before the
date of enactment of this paragraph with respect to
liability under this Act, or authority to modify any
such order, judgment, or decree with regard to the
response action addressed in the order, judgment or
decree.
(4) The validity, enforceability, finality, or merits
of any pre-existing contract or agreement relating to
any allocation of responsibility or any indemnity for,
or sharing of, any response costs under this Act.
* * * * * * *
----------
SECTION 517 OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986
SEC. 517. HAZARDOUS SUBSTANCE SUPERFUND.
(a) * * *
[(b) Authorization of Appropriations.--There is authorized
to be appropriated, out of any money in the Treasury not
otherwise appropriated, to the Hazardous Substance Superfund
for fiscal year--
[(1) 1987, $250,000,000,
[(2) 1988, $250,000,000,
[(3) 1989, $250,000,000,
[(4) 1990, $250,000,000,
[(5) 1991, $250,000,000,
[(6) 1992, $250,000,000,
[(7) 1993, $250,000,000
[(8) 1994, $250,000,000, and
[(9) 1995, $250,000,000.[,]
plus 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) of the
Hazardous Substance Response Act of 1980, as in effect before
its repeal) as has not been appropriated before the beginning
of the fiscal year involved.]
* * * * * * *
----------
SECTION 9507 OF THE INTERNAL REVENUE CODE OF 1986
SEC. 9507. HAZARDOUS SUBSTANCE SUPERFUND.
(a) Creation of Trust Fund.--There is established in the
Treasury of the United States a trust fund to be known as the
``Hazardous Substance Superfund'' (hereinafter in this section
referred to as the ``Superfund''), consisting of such amounts
as may be--
(1) appropriated to the Superfund as provided in this
section,
(2) appropriated to the Superfund pursuant to
[section 517(b) of the Superfund Revenue Act of 1986]
section 111(p) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9611(p)), or
* * * * * * *
ADDITIONAL VIEWS
The Administration Advocacy Papers Misinform
I believe it is necessary to provide additional views to
the Committee report in order to identify what I believe to be
dubious claims by the Clinton Administration as part of their
effort to oppose passage of H.R. 2580. These views focus on two
examples of biased and inaccurate information. These EPA
documents were designed and used by Administration officials in
visits with Members of Congress prior to the Committee's markup
of H.R. 2580, as amended (the Oxley substitute). The EPA
documents are styled, ``Key Problems with the Oxley Amendment
to H.R. 2580'' and ``Top Reasons for Administrator Support of
the Towns Amendment, The Community Revitalization and
Brownfields Cleanup Act of 1999''
a. the administration ignores the similarities between the oxley
substitute and the towns substitute
In the two EPA documents, the Administration repeatedly
ignores the strong similarities between the Oxley substitute to
H.R. 2580 and the Towns substitute (H.R. 1750). First, the
Administration claims that provisions in the Towns substitute
are beneficial components of reform, but fails to mention that
H.R. 2580 has substantially similar provisions. This results in
an Administration document that selectively understates
similarities between the two bills. For example, in the first
bullet under the heading styled ``[H.R. 1750] Promotes
Brownfields Redevelopment through Targeted Liability Relief,''
the Administration states that the Towns' substitute ``provides
liability relief to prospective purchasers, and contiguous
landowners whose property is contaminated from releases on
adjoining property.'' The Administration fails to mention that
H.R. 2580 also provides similar innocent party relief for
prospective purchasers and contiguous property owners.
Similarly, under the header ``[H.R. 1750] Preserves the
Principle that Polluters Should Pay for Cleanup While Providing
Relief for Small Parties,'' the Administration provides three
bullets that point out that the Towns' substitute exempts de
micromis parties, small businesses, homeowners, and non-profit
organizations that generated or transported trash, and provides
liability relief to eligible post-consumer recyclable
materials. Yet again, the Administration fails to mention that
H.R. 2580 also provides identical or similar provisions.
In addition, the Administration praises the Towns
substitute for codifying the municipal settlement policy, while
criticizing the Oxley substitute which also provides needed
relief to these parties. It is inappropriate for the
Administration to claim that H.R. 2580's municipal solid waste
provisions constitute ``special interest exemptions'' under
such circumstances. Similarly, under the heading styled ``Key
Problems with Oxley Amendments to H.R. 2580,'' the
Administration claims that ``[H.R. 2580] Fails to reinstate the
Superfund tax, giving polluters a tax holiday of about $4
million/day.'' This statement is wrong at several levels.
First, the corporate environmental income taxes and the
petrochemical feedstock taxes which expired in 1995 are not
taxes based on pollution. Is the Administration's definition of
``polluter'' any corporations which have income? Second, H.R.
2580 does not address taxes, rather it is merely silent on this
matter. Third, the Administration fails to point out that the
Towns substitute does not provide for reinstatement of the
Superfund taxes.
Similarly, the Administration alleges that ``[H.R. 2580]
fails to protect clean groundwater by allowing contamination to
migrate if the groundwater is not currently used.'' However,
the Administration fails to point out that using this measure,
the current Superfund program and statute also fails. Under
current law, standards apply where applicable, relevant and
appropriate under the circumstances of the release or
threatened release. Nothing in the statute defines what these
circumstances are. Moreover, nothing prohibits migration of
contamination in appropriate circumstances. Indeed, natural
attenuation is a method which allows contamination to migrate
for certain purposes and this method has been chosen by EPA in
numerous circumstances. Nothing in current law prevents this
practice and H.R. 2580 does no more or less than current law on
this point.
b. the administration's desire to oppose current bipartisan superfund
reform efforts has resulted in inconsistencies in its position on
superfund reform
The Administration's attack on H.R. 2580, alleging that it
will ``weaken public health protections,'' flies in the face of
its prior positions and legislative proposals for Superfund
reform. Indeed, Administrator Browner stated to Congress in
1995 that ``The Administration supports the elimination of
relevant and appropriate requirements because they have proven
to be a source of delay and unnecessary expense in selecting
remedies.'' In 1997, EPA again stated ``[T]he Administration
does support some flexibility regarding requirements that have
been traditionally referred to as `relevant and appropriate.'
As a result, the Administration supports removing the statutory
requirement to comply with these requirements.'' In addition,
removal of these requirements has been part of Minority
proposals, including H.R. 3595 as introduced in 1998 during the
105th Congress. Apparently, in the Administration's view, these
statutory provisions have needed to be changed for the several
years but, inexplicably, not as part of bipartisan Superfund
reform in the 106th Congress.
c. the administration continues to provide misinformation about the
anticipated procedural and substantive impacts of h.r. 2580
Finally, the Administration presents an incomplete view of
the procedural and substantive effects of H.R. 2580, because it
avoids properly framing the scope of particular provisions. For
example, H.R. 2580 prevents EPA from overriding State cleanup
decisions by limiting EPA's authority where there has been a
State cleanup. However, this is subject to reopener provisions,
including a reopener that allows EPA to exercise its authority
where there is an emergency to public health and the
environment and the State is not addressing the problem.
Despite these reopeners, the Administration claims that ``[H.R.
2580] restricts EPA from ordering polluters to clean up high
risk toxic waste sites * * *'' Meanwhile, when describing H.R.
1750, the Administration argues that the analogous point is a
valuable component of H.R. 1750, ``[H.R. 1750] limits federal
actions where cleanups are performed in compliance with good
state response programs.'' Although there are differences in
how the two bills approach the finality issue, rather than
briefly describing the differences, the Administration has
resorted to rhetoric.
The Administration's mischaracterization of H.R. 2580 is
prevalent. For example, the Administration claims that ``[H.R.
2580] diverts authorized cleanup dollars to pay for special
interest liability exemptions and mandatory allocations which
will mean fewer cleanups.'' In fact, the authorizations for
cleanup funds in H.R. 2580 clearly state that the direct
spending authorization for liability relief can be diverted to
other program purposes, in specific circumstances. Furthermore,
the direct spending allocations are distinct from the
discretionary program authorizations. In fact, it is not
credible to assert that H.R. 2580 will divert money away from
cleanups. Because of its brownfields and liability reforms,
less money will go towards litigation costs and more money will
be available to be used for cleanups.
These documents represent but two examples of inaccurate
and biased characterizations of H.R. 2580, which should be
rejected.
Michael G. Oxley.
ADDITIONAL VIEWS
On May 11, 1999, I introduced H.R. 1750, the ``Community
Revitalization and Brownfield Cleanup Act of 1999'' to promote
the assessment, remediation, and redevelopment of brownfield
sites. I am pleased that this legislation has attracted the
support of President Clinton, the National Realty Committee,
mayors of major cities, and 170 Members of Congress.
In late July, my colleague on the Committee, Mr. Greenwood,
introduced H.R. 2580 which covered the same scope of brownfield
issues and certain additional issues involving remedy
selection.
Almost immediately after the Subcommittee on Finance and
Hazardous Materials' August 4, 1999 hearing on these brownfield
bills, we engaged in bipartisan discussions in an attempt to
resolve the differences in our two bills. I felt that a
bipartisan product could be developed around a brownfields bill
and certain broadly supported liability relief for small
business, municipalities, and legitimate scrap recyclers, but
without engaging in the debates that surround reauthorization
of the Superfund taxes.
Unfortunately, the attempt to develop this bipartisan
product was unsuccessful. There is however, potential in the
future for developing a narrowly focused bipartisan product. At
the Committee markup I offered a substitute which embodies the
principals of my bill and other targeted reforms. I was pleased
that all of my Democratic colleagues voted for this proposal.
Edolphus Towns.
DISSENTING VIEWS
The Superfund program is no longer the program of the early
1980s, when in its infancy it was plagued by malfeasance and
intentional efforts on the part of a hostile Administration to
hamper the progress of cleanup. As a result of this ``go slow''
approach, the goal of which was to terminate the program after
its initial five-year authorization, remedial construction had
been completed at only eight sites by the end of 1985. After
the comprehensive reauthorization of the statute in 1986, it
took until 1990 for the final regulations implementing the
program to take effect.
Now, after three rounds of Administrative reforms
implemented by the Clinton Administration, the program has seen
its greatest success to date. Any legislative proposals for
change must reflect the realities of the Superfund program
today, taking into account these key administrative reforms and
the progress in site cleanups that has been achieved. Our goal
is to expeditiously complete cleanups at Superfund National
Priority List (NPL) sites. In that context we support
provisions to promote redevelopment of brownfields including
liability protections for innocent landowners, new purchasers
and developers, and contiguous property owners, as well as
brownfields grants to local governments. We also support
consensus-based targeted reforms for municipalities, small
business, and legitimate recyclers.
For more than five years, we have sought to exempt from
liability small businesses and residential homeowners who
merely sent trash to a local landfill. There is no reason to
continue to hold a restaurant or other small business that only
sent ``chicken bones'' or trash to the local landfill hostage
to a broader and controversial agenda pushed by special
interests which have yet to meet their cleanup
responsibilities.
At several times during the Superfund debate, the Minority
has been accused of pursuing the perfect while sacrificing the
good. Unfortunately, H.R. 2580 is neither the perfect, nor the
good. The bill undermines the ``polluter pays'' principle and
shifts hundreds of millions of dollars of polluter liability to
state and federal taxpayers. It undermines the basic
protections to human health and the environment that we have
long believed should be ensured the citizens and communities
affected by Superfund sites. Further, the bill undermines one
of the most effective aspects of the law to date--prevention of
future Superfund sites and brownfield sites.
We have not attempted in these views to identify every
provision in H.R. 2580 about which we have concerns. During the
hastily scheduled markups at Subcommittee and the full
Committee, within a three-week period H.R. 2580 grew from 32
pages to 136 pages. The Administration was not involved in the
formulation of the bill. By embarking on this partisan approach
we fear the Majority has missed a real opportunity to
strengthen brownfields revitalization, codify successful EPA
reforms, and make targeted changes, all on a bipartisan basis.
progress of the superfund program
Cleanup construction has been completed at more than three
times as many toxic waste sites under the Administration of
President Clinton than were completed in all the prior years
combined. According to the Environmental Protection Agency
(EPA): Cleanup construction has been completed at 670 Superfund
sites and more than 400 additional sites are undergoing cleanup
construction; more than 90 percent of all Superfund sites have
had cleanup construction completed or are in the midst of
cleanup construction; and the number of cleanups completed has
increased from 65 to 85 per year.
[GRAPHIC] [TIFF OMITTED] TR775.012
This significant progress has been recognized by states,
industry, and the General Accounting Office (GAO). In its July
1999 report (GAO/RCED-99-245) on the status of the Superfund
program, the GAO released the following findings:
At half the sites, cleanups had been completed or all
remedies were in place to achieve cleanup.
At sites where cleanups were not complete, a
significant amount of work already had been
accomplished, and the remainder of the work was
scheduled to be completed in the near future.
At sites where cleanups were not complete, two-thirds
of the required work was underway or done.
Business groups also have noted the significant progress
that has been achieved in cleaning up Superfund sites:
The Federal hazardous site cleanup program
established by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980
(Superfund) is expected to achieve its goal of
restoring the highest priority cleanup sites to
environmental health within the next three to five
years. (U.S. Chamber of Commerce, June 21, 1999.)
Additionally, nearly 90 percent of all non-federal
sites on the NPL are undergoing cleanup activities, and
60 percent of them will be finished by the end of this
Congress. (National Association of Manufacturers,
October 12, 1999.)
The Subcommittee also received testimony from state
officials that the Superfund program has hit its stride and is
doing a good job in remediating the NPL sites.
With 90% of all NPL sites having signed records of
decision, we felt a discussion on remedy selection
changes would not be appropriate. EPA has done a good
job in diligently working to remediate the 1,300 or so
sites listed on the NPL. (Testimony of Claudia Kerbawy
on behalf of the Association of State and Territorial
Solid Waste Management Officials (ASTSWMO) before the
Subcommittee on Finance and Hazardous Materials, March
23, 1999.)
We believe that at this point, any changes to the program
that would undermine the rapid progress that has been achieved
in completing cleanups is counterproductive and unwise.
the democratic alternative
During the Committee markup, Mr. Towns of New York offered
a Democratic alternative that promotes the development of
brownfield sites and addresses the liability concerns of
municipal governments, small business, and legitimate
recyclers. The Democratic alternative also directs that a study
of the future revenue needs of the Superfund program be
completed by May 1, 2000.
The brownfields provisions in the Democratic alternative
are taken from H.R. 1750, which is supported by the National
Realty Committee, National Association of Counties and other
local government organizations, Mayor Archer of Detroit, Mayor
Rendell of Philadelphia, Mayor Webb of Denver, Mayor Harmon of
St. Louis, Mayor Murphy of Pittsburgh, Mayor James of Newark,
Mayor Bollwage of Elizabeth, New Jersey, and 170 Members of
Congress. President Clinton also has expressed his strong
support for the brownfield provisions in the Democratic
alternative.
Brownfield sites are parcels of land that contain abandoned
or under-used commercial or industrial facilities, which may
include associated rivers, streams or lakes, and mine-scarred
land.
The Democratic alternative contains the following
provisions which will promote the development of brownfield
properties:
Grants To Local Governments and Redevelopment
Authorities.--To facilitate environmental cleanup, the
Democratic alternative authorizes grants of up to $500,000
annually to a local government to assess contamination at a
site. Also, depending on the particular site circumstances, the
Democratic alternative authorizes grants of $500,000 to
$1,000,000 to allow local governments and redevelopment
authorities to capitalize revolving loan funds for actual
cleanup of brownfield properties.
The Democratic alternative builds on the successful
brownfields grant program administered by the EPA, but
authorizes higher grant amounts than awarded under current
practice and reduces the administrative burden on local
governments from the grant application process.
Liability Protection For Prospective Purchasers.--The
Democratic alternative provides that a new purchaser or
developer of contaminated property will not be liable under
Superfund if he performs a due diligence inspection of the
property, provides access to persons performing the cleanup,
and is not affiliated with the person who is responsible for
creating the contamination. The purchaser does not have to
perform the cleanup himself.
Innocent Landowner Protection.--The Democratic alternative
establishes criteria to provide certainty to persons who are
innocent landowners. The Democratic alternative adopts the
environmental assessment standards established by the American
Society for Testing and Materials which are widely supported
and used by the real estate industry and regulators today.
Contiguous Property Owner Protection.--The Democratic
alternative creates a defense to liability for a landowner, (1)
where the contamination came from adjoining property and (2)
the landowner did not cause or contribute to the contamination
on the adjoining property, and (3) the landowner takes
appropriate care with regard to the contamination.
Certainty Provisions.--In addition to the liability relief
provided above, in a state that has a qualified voluntary
cleanup program, the Democratic alternative limits the federal
government's ability to sue any person associated with
contaminated property cleanup under the state program. The only
exceptions are: (1) where the site may pose an imminent and
substantial endangerment to health or the environment, (2) the
state requests that the federal government take action, (3)
conditions were unknown at the time of the cleanup and those
conditions indicate that the cleanup is not protective of human
health or the environment, or (4) cleanup of the site is no
longer protective because of a change in use of the site.
The Subcommittee on Finance and Hazardous Materials
received testimony at its August 4, 1999, hearing from local
officials and community representatives indicating that states
vary widely in the technical expertise, resources, staffing,
statutory authority, and commitment necessary to ensure that
brownfields cleanups are adequately protective of public health
and the environment. The local government officials and
community representatives both urged the Subcommittee to adopt
an approval process for states to demonstrate that their
programs meet certain criteria before limiting federal
enforcement authority.
The amendment authorizes $15 million each year for five
years to assist the states in developing voluntary cleanup
programs and ``grandfathers'' existing agreements between the
states and the EPA with respect to voluntary cleanup programs.
Municipal Liability.--Nine local government organizations
led by the League of Cities, National Association of Counties,
and the National Association of Towns and Townships testified
to the needs of local governments for municipal Superfund
liability relief at the Committee's hearing on September 22,
1999. These local government organizations requested that the
Subcommittee legislatively ratify the municipal settlement
policy adopted by the EPA in February 1998. Local governments
testified that the municipal settlement policy provides a
``reasonable and fair rate'' based on landfill closure costs.
Liability Relief For Small Business.--The Democratic
alternative provides liability relief for small business by:
(1) exempting from Superfund liability small businesses or
homeowners who only sent municipal solid waste to the local
landfill, (2) establishing in law an ``ability to pay'' policy,
and (3) exempting any party who sent a very small (de micromis)
quantity of hazardous substances to a site unless that waste
contributes or could contribute significantly to the costs of
cleanup.
For more than five years we have consistently supported an
exemption for small businesses like restaurants or print shops
which merely sent trash to local landfills. In the 105th
Congress, Representatives Stupak and Goodling cosponsored
legislation, H.R. 2485, to exempt small businesses who sent
trash to the local landfill from Superfund liability and from
the fear of being sued by major polluters at the site.
Unfortunately, the leadership of the Committee was unwilling to
consider this bipartisan consensus legislation. The Democratic
alternative provides immediate relief for small business owners
like Barbara Williams in Gettysburg, Pennsylvania who disposed
of nothing more toxic than household trash and does so without
placing the burden of proof on a small business to qualify for
the exemption.
Liability Clarification For Recycling Transactions.--The
Democratic alternative is intended to promote the recycling of
used materials because such recycling promotes waste
minimization and the conservation of natural resources. At the
same time, the Democratic alternative is intended to retain
sufficient conditions to ensure protection of human health and
the environment. It also is intended to remove disincentives to
recycling because of potential CERCLA liability and thereby
level the playing field for the use of virgin materials versus
scrap materials. The Democratic alternative is designed to
promote environmentally responsible recycling by encouraging
persons to demonstrate the recycling transaction is not a sham
for the treatment or disposal of hazardous substances. It also
is intended to encourage parties to take affirmative actions to
determine that the facilities to which they send recyclable
materials are in compliance with environmental laws.
The Democratic alternative closely tracks the widely
supported historical compromise language that has most recently
been introduced by the Senate Majority and Minority Leaders on
August 4, 1999, as S. 1528.
To address the important issue of future revenue needs of
the federal Superfund program the Democratic alternative
directs the Administrator of the EPA to arrange for an
independent analysis of the projected 10-year costs to complete
cleanups of the facilities on the NPL and cleanup costs for
sites likely to be added to the federal Superfund program.
H.R. 2580
The bill reported by the Committee is deeply flawed and
will undermine important statutory protections. Rather than
crafting targeted changes which have a broad consensus to
improve the program, as the Democratic alternative does, H.R.
2580 rolls back important environmental standards to protect
ground water and achieve permanent cleanups, undermines the
``polluter pays'' principle, delays rather than maintains the
current pace of cleanups, increases transaction costs, and
deprives communities and local governments of a federal safety
net where an imminent and substantial endangerment to human
health or the environment may be presented.
Rollback of Environmental Protections in H.R. 2580
The Superfund program was established in 1980 in response
to public concern over the potential harm to human health of
substances released from chemical spills and hazardous waste
sites such as Love Canal, New York and Valley of the Drums,
Kentucky. The Agency For Toxic Substances and Disease Registry
recently reported that 1.3 million children under the age of
six live within one mile of a Superfund site. Contaminated
ground water is a problem at more than 85 percent of Superfund
sites. At more than 90% of NPL sites, one or more operable
ground water wells is located within one mile of a site, and at
82% of NPL sites ground water is withdrawn for drinking
purposes within three miles of the site. Existing drinking
water wells were either contaminated or threatened by continued
plume migration at 499 sites.
H.R. 2580 Will Lead to Inadequate Cleanup of Contaminated
Ground Water and Allow Clean Ground Water To Become
Contaminated.--Nearly 120 million Americans, about half the
population, rely on ground water as a primary source of
drinking water. About 100 million of these consumers are served
by community water systems using ground water for all or most
of their water supply. In rural areas, reliance on ground water
for drinking water can be as high as 95% of the population.
Between 1970 and 1990, Alaska, Arizona, California, Florida,
Kentucky, and Missouri all doubled their use of ground water
for public water supply.
We are concerned that a number of provisions of H.R. 2580,
both individually and collectively, 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.
First, H.R. 2580 eliminates a provision of current law
(CERCLA Section 121((d)(2)(A)) that requires cleanups of
hazardous substances to meet any state or federal environmental
standard that is ``relevant and appropriate under the
circumstances of the release or threatened release of such
hazardous substance.''
Both state and federal officials have informed the
Committee that ``relevant and appropriate'' requirements are an
important threshold criterion in remedy selection, particularly
with regard to state drinking water standards, solid and
hazardous waste laws, and mining reclamation standards. They
have urged that these standards be retained.
Where a state has a more stringent maximum contaminant
level (MCL) for ground water than the federal MCL, such as
benzene in California, or there is a state MCL for a
contaminant but no federal MCL for the same contaminant, those
state standards have been used as ``relevant and appropriate''
to insure the protectiveness of the cleanup.
The Association of Metropolitan Water Agencies,
representing the Nation's largest drinking water providers, and
the American Water Works Association, representing drinking
water supply professionals throughout the country, have urged
the Committee to retain the ``relevant and appropriate''
requirements of current law. In their words, relevant and
appropriate requirements are ``a key tool in protecting human
health and ensuring that consumers are not forced to pay for
treatment of water contaminated by hazardous waste.'' (See
October 8, 1999 letter from the Association of Metropolitan
Water Agencies and American Water Works Association to the
Honorable John D. Dingell.)
Many other situations have come to our attention where
``relevant and appropriate'' requirements have been very useful
in avoiding disputes over whether a state standard is legally
applicable and in providing standards which ensure
protectiveness at sites. For example, standards established
under the Uranium Mill Tailings Control Act for cleanup of
radium and thorium in soil at designated processing or
depository sites have been utilized as ``relevant and
appropriate'' standards at Superfund sites with similar types
of radiation conditions. Landfill design standards established
under the Resource Conservation and Recovery Act (RCRA),
particularly for landfill capping, closure, and leachate
collection, have also frequently been used as ``relevant and
appropriate.''
Second, during the Committee consideration of H.R. 2580,
Representative Stupak unsuccessfully offered an amendment to
correct a serious deficiency in Section 309 which establishes
new remediation levels for dry cleaning solvents. The adoption
of Section 309 during Subcommittee markup--without any
legislative hearing on the merits--results in a much less
protective cleanup standard for three contaminants used as dry
cleaning solvents: tetrachloroethylene (also known as
perchclorethylene (PCE), carbon tetrachloride, and
trichchloroethylene (TCE). These contaminants also are used as
solvents for many other industrial operations. These three
chemicals are among the most prevalent found at Superfund
sites. According to the EPA, TCE has been found as a
contaminant in at least 852 sites and in the ground water at
336 sites. PCE has been found in the ground water of at least
170 NPL sites and overall at 771 NPL sites. Carbon
Tetrachloride has been found in the ground water in at least 68
sites, and found as a contaminant in at least 326 sites. Each
of the contaminants is classified as a possible or probable
human carcinogen.
According to the EPA and state officials, the remediation
levels established in Section 309 do not protect ground waters
that are potential sources of drinking water because the bill
prohibits the use of cleanup levels other than the soil
concentrations developed in the EPA's 1996 Soil Screening
Guidance for estimating risks from the inhalation of
contaminants. According to the EPA, the inappropriate use of
the soil screening levels is not protective of human health or
the environment when used as a remediation level for ground
water. For example, the inhalation soil screening value for
Tetrachloroethylene (PCE) of 11 milligrams per kilogram, if
used as a cleanup standard for ground water, would equate to 11
milligrams per liter, which is more than twothousand times less
stringent than the MCL established by the Safe Drinking Water Act of
.005 milligrams per liter. With respect to potential drinking water
sources, the standard established by H.R. 2580 for Trichloroethylene
(TCE) is 1,000 times less protective than current law and for Carbon
Tetrachloride, 60 times less protective than current law.
Officials who manage state cleanup programs have strongly
objected to the separate cleanup criteria for dry cleaning
solvents in correspondence submitted to the Committee.
There is no valid technical reason for treating
carcinogenic compounds released from dry cleaners any
differently than the release of the same compounds from
other sources or than the release of other carcinogenic
compounds. It is a generally held view among our
members that the basis for these separate criteria is
not good science. We think this provision would disrupt
cleanup of numerous releases being addressed across the
country under state and federal authorities using sound
science. The change in cleanup criteria proposed in the
current version of H.R. 2580 has not been subject to
the appropriate toxicological and scientific review
that should be accorded matters of public health, and
we believe would effectively preempt state cleanup
criteria for this significant class of contaminants. We
strongly oppose these disturbing provisions restricting
cleanup standards for dry cleaning solvents, and urge
you to eliminate it from the final House version of
this bill. (October 27, 1999, letter from Michael
Kelly, President, Association of State and Territorial
Solid Waste Management officials.)
We cannot support the dramatic weakening of cleanup
standards with respect to three of the most serious and
prevalent contaminants at Superfund sites, particularly where
there have been no hearings or presentation of facts to justify
such a change in law. Nor can we support eliminating the use of
state and federal environmental requirements which are both
``relevant and appropriate'' to the circumstances of the
contamination at a site.
At the Subcommittee on Finance and Hazardous Materials
hearing on September 22, 1999, the Assistant Administrator in
charge of EPA's Superfund program identified several other
provisions in H.R. 2580 that could result in inadequate
protection of ground water. According to the EPA, H.R. 2580
replaces the current Superfund program goal to restore
contaminated ground water to beneficial uses, wherever
practicable, with a much lower standard. H.R. 2580 protects
ground water only for its ``reasonably anticipated use'' rather
than its ``current or potential beneficial use.'' According to
EPA, changing the existing regulatory standard in this manner
may create a perception of a bias against protecting
uncontaminated ground water. The Association of Metropolitan
Water Agencies and the American Water Works Association
expressed similar concerns and urged the Committee ``to remain
consistent with EPA's policy and retain the emphasis on
beneficial use.'' (See October 8, 1999 letter from the
Association of Metropolitan Water Agencies and the American
Water Works Association to the Honorable John D. Dingell.) In
testimony at the September 22, 1999 Subcommittee hearing, state
officials also expressed their preference for EPA's current
requirement that contaminated ground water be restored to
beneficial uses whenever practicable, and that uncontaminated
ground water be protected. The Subcommittee was informed that
this is a particularly critical issue for arid western states
where ground water resources are scarce. Further, EPA officials
testified that by including the term ``reasonable point of
compliance,'' H.R. 2580 invites disputes over whether drinking
water standards should be met in the ground water or at the
tap, potentially delaying cleanup and leaving valuable ground
water resources unprotected.
Third, in their letter of October 8, 1999, the Association
of Metropolitan Water Agencies and American Water Works
Association urged ``the Committee to include language
directing, at a minimum, that uncontaminated ground water be
protected.'' At the Committee markup, Representative Pallone
offered an amendment to achieve this objective in remedies
selected under the Superfund program as follows:
A remedial action shall protect uncontaminated ground
water and surface water unless it is technically
infeasible, or unless limited migration of
contamination is necessary to facilitate restoration of
ground water to beneficial use.
Failure to prevent migration can create conditions that are
orders of magnitude more costly to address than 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-a-million people. EPA is spending
$20 million to stop the spread of contamination at this site.
By stopping the spread of this contamination, nearly 100 wells
will be protected, saving over $200 million in total potential
wellhead treatment costs.
The amendment does not direct that uncontaminated ground
water be kept clean where to do so is impossible, or where
limited migration is necessary to facilitate the restoration of
ground water. However, keeping uncontaminated ground water
clean should be a vital objective when selecting remedial
actions. The importance of preventing the spread of
contaminants was recognized by the National Research Counsel in
its report ``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. (National Research Council Report entitled
``Alternatives For Ground Water Cleanup'', July 1994.)
We cannot support a bill such as H.R. 2580 that weakens current
protectiveness standards for cleanups and fails to protect
uncontaminated ground water.
Weakening the Preferences for Permanent Remedies and
Treatment for the Most Toxic Wastes.--Current law in Section
121(b) contains a preference for remedial actions to use
treatment techniques which permanently and significantly reduce
the volume, toxicity or mobility of hazardous substances. Under
this standard, the EPA employs the preference for treatment for
the most toxic or mobile hazardoussubstances at a site. In
addition, Section 121(b) of current law provides that Superfund
remedial actions utilize permanent solutions to the maximum extent
practicable.
These preferences have been in the Superfund statute since
1986. Over 2,000 remedial actions have been selected using
these criteria. They have been very important in addressing
ground water contamination and in selecting remedies so that
Superfund sites are returned to beneficial use for the economic
benefit of the community. According to the EPA, major reuse--
either economic or recreational--is occurring at more than 160
Superfund sites that either have undergone completion of
construction or have remedial construction activities underway.
These include industrial parks, commercial facilities (like K-
Marts and Home Depots), little league ball parks, community
recreational centers, residential housing, and wildlife
sanctuaries.
Section 108 of H.R. 2580 strikes the word ``maximum'' from
the preference for permanent remedies. This change effectively
eliminates the importance of selecting permanent remedies and
permanent protection for communities. Similarly, H.R. 2580
contains language that modifies and weakens the preference for
treatment by adding qualifying phrases like ``to the extent
practicable'' and other conditions. These changes will provide
new litigation opportunities for those who wish to challenge
remedies where the preference for treatment has been
considered.
Opposition to these changes has come from federal and state
officials, citizens who reside near Superfund sites, and the
Association of Metropolitan Water Agencies and the American
Water Works Association:
These changes weaken the preference for treatment and
permanence by focusing on current uses rather than
possible future uses of a site. The amendments also
protect only the reasonably anticipated uses of
groundwater and make no provision for protecting unused
groundwater that has not yet been contaminated.
California's State Superfund Program would be
constrained by these changes, limiting California's
ability to protect its resources for future, yet
unplanned uses. (October 12, 1999, letter from Winston
H. Hickox, Agency Secretary, California EPA)
And we further object to the bill's devaluation of
permanent remediation solutions by striking the word
``maximum'' from CERCLA Section 121(b)(1), in which the
President is directed to select remedial actions that
utilize permanent ``solutions to the maximum extent
practicable.'' (Emphasis added.) The association
believes it is extremely important that there be a
continuation of the current policy's general preference
for treatment and permanence. (October 8, 1999, letter
from the Association of Metropolitan Water Agencies and
the American Water Works Association)
Congress should maintain the federal commitment to
permanency in treatment. Permanent solutions to
improperly dispose of hazardous waste should be
accorded preference over attempts to control access or
exposure to such waste. Long term economic
redevelopment efforts will be hurt by a policy that
defers actual site cleanups.'' (National Conference of
State Legislators, CERCLA Section, Hazardous Waste
Management Policy, March 1998)
The preferences for treatment and permanence in current law are
also strongly supported by the EPA, the American Public Health
Association, the Environmental Defense Fund and other national
environmental organizations, and citizens and community groups
who have testified at Committee hearings.
Inadequate Protection of Children, Pregnant Women and
Adversely Affected Subpopulations.--Over 2,000 cleanup
decisions have become final using the statutory criteria from
the 1986 comprehensive reauthorization of the Superfund statute
and the implementing regulations. In 1989, the EPA issued two
volumes of ``Risk Assessment Guidance For Superfund'' followed
by three volumes of peer reviewed guidelines detailing various
factors used in assessing exposure as well as a volume setting
forth the process for designing and conducting ecological risk
assessments. This extensive body of guidelines considers the
toxic exposure for not only the average adult male, but also
for more at-risk groups, such as children and pregnant women.
H.R. 2580 would unnecessarily raise doubts about the
current risk assessment practices by establishing a new set of
risk assessment criteria in Section 108. These new criteria in
our view are unnecessary and fail to adequately insure that
health risk assessments consider the effect of hazardous
substances on children, pregnant women, the elderly, and other
individuals with a history of serious illness that are
identifiable as being at greater risk of adverse health effects
due to exposure to hazardous substances than the general
population. H.R. 2580 merely provides that a risk assessment
identify groups which would be highly exposed or highly
susceptible to contamination from the site. Mere identification
of groups fails to explicitly address and insure that the
effects of hazardous substances on children, pregnant women, or
the elderly are actually considered in a health risk
assessment.
Representative Capps offered an amendment to ensure that
the health risk assessments conducted at Superfund sites remain
protective. The amendment was taken from the new, recently
enacted California Superfund law and provides that a health
risk assessment shall consider the effect of hazardous
substances on children, pregnant woman, the elderly, and other
subpopulations at greater risk. Unfortunately, the Majority
rejected the amendment on a party-line vote. We remain
concerned that the new risk assessment principles and
provisions of Section 108 will spawn new litigation and legal
challenges but will not adequately address the special needs of
children, pregnant women, and the elderly.
Representative Waxman offered an amendment which would
facilitate risk assessments by generating information on toxic
chemicals in communities. The amendment was based on H.R. 1657,
bipartisan legislation introduced by Representatives Waxman and
Saxton, currently cosponsored by over 130 Members. The
amendment requires disclosure of toxic chemcial use and is
based on state laws inNew Jersey and Massachusetts. Superfund
sites and facilities reporting to the Toxics Release Inventory (TRI)
for a given toxic chemical also report (1) the number of facility
employees exposed to the toxic chemical, and (2) the amount of the
toxic chemical that the facility ships in and out, stores on-site,
produces, consumes, and recycles. The amendment provided that
facilities may withhold from public disclosure toxic chemical use
information that constitutes a legitimate trade secret. The Majority
rejected the amendment along a largely party-line vote.
H.R. 2580 Undermines the ``Polluter Pay'' Principle
H.R. 2580 shifts polluter liability to state and federal
taxpayers. H.R. 2580 in Section 202 authorizes all of the
funding for the Superfund program to come from general
revenues. This is a departure from the current statute and all
previous reauthorization proposals which capped the amount from
general revenues at $250 million per year. Further, the bill
contains no tax title to raise revenue for Superfund cleanups.
Historically, these revenues have been raised for the Superfund
Trust Fund from excise taxes on petroleum and chemicals in
addition to a corporate environmental tax. These taxes expired
on December 31, 1995, and have not been renewed.
H.R. 2580 does, however, contain numerous overly broad
liability exemptions and other provisions that shift hundreds
of millions of dollars of polluter liabilities directly to the
Trust Fund. One such provision in Section 304(b) exempts large
commercial waste haulers and other parties from liability for
sending municipal solid waste or municipal sewage sludge to a
landfill on the NPL. Other provisions contain a mandatory
allocation system (Section 308) and a transfer of private
rights of contribution (Section 304(e)) which shift millions of
dollars of polluter liability costs to the Trust Fund. The
Committee has not produced any cost estimate of the liability
exemptions or limitations on the cost-shifts from the mandatory
allocation system. However, the costs of major exemptions and
contribution claim payments in H.R. 2580 have been
preliminarily estimated by the EPA to range from $372-450
million per year.
H.R. 2580 provides direct spending of $250 million per year
for fiscal years 2000 through 2004 to pay for these cost-
shifts. However, the Office of Management and Budget informed
the Committee that H.R. 2580 would impose costs on the
Superfund Trust Fund in excess of the level of direct spending
included in the bill by a ``significant margin.'' The Office of
Management and Budget also observed that the bill failed to
offset the increased direct spending and that if enacted the
bill's net costs could contribute to a sequester of mandatory
programs. (See October 12, 1999 letter from Jacob J. Lew,
Office of Management and Budget, to the Honorable John D.
Dingell.)
Both state and federal officials have criticized the overly
broad liability exemptions and the shift of these polluter
liabilities to the public at large. On October 13, 1999, the
Department of Justice informed the Committee that H.R. 2580
rejects the ``polluter pay'' principle and would shift major
new costs to the Fund in order to pay for the hundreds of
millions of dollars in special interest liability exemptions in
the bill. (See October 13, 1999 letter from Ms. Joyce E.
Peters, Department of Justice Office of Legislative Affairs, to
the Honorable John D. Dingell.)
H.R. 2580 also imposes an arbitrary 10% cap on the recovery
of oversight costs by the states or the federal government.
Representative Engel offered an amendment to remove the
arbitrary 10% limitation during markup by the Subcommittee on
Finance and Hazardous Materials. The amendment was rejected on
a party-line vote.
While the Democratic alternative provides liability
clarifications and relief for new purchasers, innocent
landowners, contiguous property owners, small businesses,
municipal governments and legitimate recyclers, it does so
without shifting costs to taxpayers and without creating
controversial and overly broad liability exemptions. We also
fear that H.R. 2580 creates the real possibility that these
excessive liability exemptions or limitations and the resulting
claims will diminish the cleanup funding necessary to maintain
the current pace of cleanups.
We strongly agree with the position of the National
Conference of State Legislators that any changes to the law
should maintain the ``polluter pays'' principle and should not
result in increased allocation of public funds for site
cleanups. (See September 28, 1999 letter from Beverly Gard,
Chair, NCSL Environment Committee to the Honorable John D.
Dingell.) Unquestionably, H.R. 2580 undermines the ``polluter
pays'' principle.
slowing cleanups, increased litigation, and increased transaction costs
Numerous witnesses testified at the Subcommittee hearings
that provisions in H.R. 2580 would likely hinder cleanup
progress and increase transaction costs, including costs to
small parties. Assistant Attorney General of the State of New
York, Gordon J. Johnson, on behalf of the National Association
of Attorneys General, testified that the mandatory process for
allocating liability among responsible parties created by the
bill ``will likely delay cleanups and substantially increase
costs.'' He also raised the concerns that ``the bill may well
require that liability disputes be resolved first, while
cleanups wait until later.''
In responding to a question from Representative Engel at
the Subcommittee hearing, Mr. Johnson further explained the
reason for his concerns:
Mandatory allocation we think under this statute will
become a trial. It will not result necessarily in
settlements. When allocations are made mandatory,
parties are more likely to await its results rather
than make an effort to truly settle the case and end
it. Why not wait and see what happens as a result of
the allocation before coming forward with a settlement
proposal?
Mandatory allocation we think will just inevitably
lead to trial-like allocations rather than a reduction
in transaction costs in settlements. And this is
particularly pertinent here because PRP's ordered to
clean up a site will get reimbursed by the fund, and
thus removing [SIC] any incentive that they currently
have to settle.
Under current law, EPA can provide mixed funding for
PRP's who agree to settle their liability. However, if
they know that they don't have to make a settlement in
order to be reimbursed for any excess costs, PRP's are
not going to be settling. That means that the fund is
going to have to pay for cleanups. There is going to be
a lot more orders. Cleanups will be delayed. And the
whole process of resolving cases by settlement and
getting cleanups to move forward quickly will be
delayed.
Federal agencies charged with administering the program
have expressed similar concerns about the structure of the
mandatory one-size fits all allocation process established by
Section 308 of H.R. 2580. Under current law, the United States
resolves most of its CERCLA claims through settlement, not
litigation. Approximately 70% of all cleanups are performed by
potentially responsible parties through such settlements.
At the Subcommittee hearing, EPA officials testified that
the bill would severely reduce or eliminate the incentives in
current law for parties to reach agreement at the negotiating
table, and to move quickly to cleanup absent adversarial,
unilateral orders. Of particular concern was the testimony that
the requirement to allocate shares for the response action will
result in dragging exempt or settled parties back through the
allocation process, even if they had previously settled. Over
18,000 de minimus parties have settled their liability to date.
Under H.R. 2580, the Fund is responsible for the share of
exempt parties, as well as insolvent or defunct parties. We are
concerned that the structure of Section 308 places a premium on
these parties and encourages other responsible parties subject
to the allocation to perform a ``witch hunt'' to identify such
parties in order to reduce their share. This result is not
speculative; it actually occurred at allocations that the EPA
has pilot tested over the past five years. For example, at the
South 8th Street landfill in Arkansas, the parties responsible
for the pollution named an additional 2,500 parties, most based
on the appearance of a person's name in the phone book for the
years the facility was in operation. The EPA later found there
was no basis in law or fact for naming these parties as
potentially liable. An allocation system structured to create
incentives to drag parties who were never liable or who have
settled their liability back into a mandatory trial-like
allocation system is sure to increase, rather than decrease,
transaction costs.
Over the past four years, the Administration has made
significant improvements in adopting a more equitable
enforcement approach through its administrative reforms. In
1996, the EPA adopted a policy to provide orphan share
compensation at each eligible site where there are insolvent or
defunct parties. Compensation through settlement has been
provided at 96 sites in the amount of approximately $176
million in recognition of the shares attributable to insolvent
and defunct parties. This compensation took the form of
compromises of past costs and future oversight costs which
preserved the Trust Fund in order to maintain the current rate
of cleanups. According to the EPA, in the overwhelming majority
of cases, settlement occurred, issues were resolved up front,
and parties agreed to not drag the cleanup decision through
years of litigation. We endorse this very successful
administrative reform which avoids delaying cleanups or
increasing transaction costs while providing equitable relief
where appropriate.
Other provisions in H.R. 2580 were also identified at the
Subcommittee hearing as the source of time-consuming and costly
litigation when the meaning and relevance of new terms are
fought over in the courts. One example cited was the new
terminology regarding ground water and risk assessments.
According to the EPA, new risk provisions in Section 108 will
require consideration of information, regardless of
reliability, quality, or whether the information is
representative of site conditions. Defining when assessments
are ``scientifically objective'' or if the scientific and
technical information is the ``best available'' will likely
lead to extensive debates and unnecessary litigation. As to the
entirety of Section 108, the vague and ambiguous risk concepts
willlead to greater delay as parties wrangle over
interpretation of these new principles and standards meant to effect
every cleanup.
the broad prohibition on enforcement and citizen rights undermines
cleanup protection for communities
H.R. 2580 repeals citizen rights and re-writes well-settled
case law, under the guise of brownfields redevelopment. That is
not the action our communities have asked us to take. Although
intended to facilitate the cleanup and redevelopment of
brownfields, which far outnumber National Priorities List
sites, the implementation of Title I of H.R. 2580 is likely to
result in more sites left temporarily stabilized, or only
partially remediated. Cities, as well as those who value non-
urban greenfields, will suffer the consequence of properties
not cleaned to reuseable standards. The result: the
perpetuation of brownfields. And for the very citizens who have
been plagued by these properties, H.R. 2580 severely limits
their rights to seek assistance from the federal government, or
to take citizen action at a contaminated site that may continue
to present a danger to their community.
We have heard testimony that potential Superfund liability
chills redevelopment of brownfields. We also have seen in the
Conference of Mayors 1998 report that the number one impediment
to redevelopment is the need for cleanup funds. Among other
concerns is the need for environmental assessments, market
conditions, neighborhood conditions and community concerns
(``Recycling America's Land,'' January 1998). What we can
conclude is that there is no such thing as a ``typical''
brownfield site nor is there one problem common to all sites.
They vary widely in origin, size, extent of contamination,
marketability and location. In large part, they have not been
inventoried, assessed or catalogued. Given this circumstance,
it is difficult to create one template designed to provide
redevelopment incentives for such a wide variety of sites that
pose a wide variety of challenges for developers. Our task is
to strike a balance between the desire to provide redevelopment
incentives that will work for such a variety of sites, while at
the same time maintaining the assurance to affected citizens
that these sites will no longer threaten the health of the
community. We do not believe H.R. 2580 strikes that balance.
We support Superfund liability clarifications for innocent
landowners, contiguous property owners and bona fide
prospective purchasers, although we would prefer slightly
different language than that contained in sections 105, 106 and
107 of H.R. 2580. With these liability clarifications, we
believe the concerns about ``certainty'' with regard to
Superfund liability have been addressed for the parties who may
be reluctant to acquire someone else's mess. The developer of a
site who performs due diligence and discovers contamination,
but did not create the contamination, and who is willing to
provide access to a person who may remediate the site, will
know that he does not face Superfund liability. The landowner
who did not know of contamination when he acquired his
property, but had performed due diligence at the time of his
purchase, will know that he does not face Superfund liability.
The landowner whose property is contaminated by migration of
pollution from contiguous property will know that he does not
face Superfund liability. These parties can own and acquire
property without fear of liability for the contamination that
defines a brownfields site.
The remainder of the debate over ``certainty'' applies only
to the parties who do not qualify for these exemptions: the
parties who did not act responsibly to perform due diligence;
the parties who will not provide access for cleanup; the
parties who knew of the contamination at the time they acquired
the property and have not yet acted to clean it up, or the
parties who were responsible for the contamination in the first
place. These are the very parties who should be responsible for
addressing the mess they create, yet, in H.R. 2580 these
parties are rewarded with a broad assurance that neither the
federal government nor any other person will take any
administrative or judicial action against them so long as a
state cleanup has been initiated, but not necessarily
completed, on their property.
We fear that this bill's prohibition on the President's
(including EPA and resource trustee's) and any other person's
ability to act in virtually any circumstance is so restrictive
as to provide incentives for incomplete or shoddy cleanup.
State officials have said that the federal liability system
contained in current law is integral to their ability to obtain
cleanup from responsible parties at state hazardous waste
sites. (See ``Hazardous Waste Sites: State Cleanup Practices,''
GAO/RCED-99-39, December 1998.) Even when the state does not
threaten to notify the President (usually the EPA) of a
problematic site, the fact that the state could do so often
brings the parties together to work out a cleanup plan with the
state. This cooperative effort between the states and the
responsible parties, fostered in part by the very existence of
federal law, is one of the most productive aspects of current
law. Unfortunately, H.R. 2580 undermines that mechanism.
First, in H.R. 2580, the President, and any other person,
is broadly prohibited from acting under CERCLA or RCRA with
respect to a release or threatened release at a facility that
is, or has been, the subject of a response action pursuant to a
state program. The prohibition could be read to attach to an
entire facility that is or has been the subject of state
action, even if a large part of that facility was not touched
by the state response action. Clearly, the language expressly
prohibits action even where a response action has begun but has
never been completed. We fear that this provision provides
incentives for half-finished cleanups.
Second, by extending the scope of the prohibition to
actions under section 7002(a)(1)(B) or section 7003 of RCRA,
H.R. 2580 eliminates the EPA's authority to act with regard to
petroleum substances as well as solid and hazardous wastes. We
strongly oppose this loophole. For example, EPA not only has
used this authority to address petroleum that has leaked out of
tanks and infiltrated sewers, streams and groundwater, but also
to respond to tire fires. Tires do not qualify as hazardous
wastes, but when burned they release dangerous pollutants.
In addition, the prohibition against actions under section
7002(a)(1)(B), pertaining to citizen suits, is an unwarranted
abrogation of a core intent of the RCRA statute. We wish to
emphasize that the intent of section 7002(a)(1)(B) is not to
confer authority to EPA, but instead to confer to a citizen the
statutory right to take action against a person, including the
United States or another government instrumentality or agency,
who has contributed to the past or present mishandling of solid
or hazardous waste which may present an imminent and
substantial endangerment to health or the environment. We have
heard no testimony that the repeal of these citizen rights is
necessary for brownfields redevelopment. To the contrary, we
are seeking to assist the citizens plagued with abandoned and
contaminated properties that pose not only a threat to their
economic well-being, but also to their health.
Under current law, a citizen seeking to bring an action
under section 7002(a)(1)(B) must notify the state. No action
may be commenced if the state has commenced and is diligently
prosecuting an action under RCRA, or is performing an action
under section 104 of CERCLA or is pursuing a remedial action
under CERCLA (see RCRA section 7002(b)(2)(A)-(C)). Thus, in
current law there exists a mechanism for a state to preempt a
citizen action, if the state so chooses, by taking action at
the site. The case has not been made that this provision of
current law chills a state's ability to assume the lead
decision making role at any brownfields site.
Third, the prohibition extends to private contribution
actions, revealing the misleading nature of the title
``Prohibition on Enforcement.'' A private party may have
voluntarily commenced a cleanup with the expectation that the
cleanup would be financed, in part or in the entirety, by a
successful contribution action to be brought against parties
responsible for the contamination. Once H.R. 2580 is in effect,
the contribution action will be extinguished. This provision
may actually discourage parties from commencing cleanup due to
financial inability--a result that is inconsistent with our
goal to encourage the remediation and redevelopment of
brownfields. As well, a number of parties who have commenced
cleanup with the expectation of contribution prior to the
enactment of this legislation may abandon their effort prior to
completion of the cleanup. But because a cleanup was commenced,
H.R. 2580 forecloses EPA from ensuring that it is completed.
Narrow Exceptions to the Broad Prohibition Put Communities
at Risk.--While we agree that the states should have primary
responsibility for overseeing cleanup at brownfields sites, not
all states are the same, nor is one state program necessarily
funded at the same level from one administration to the next.
Many states have successful, responsible voluntary cleanup
programs or other waste treatment programs. But some states
have yet to enact or fund such programs. The GAO has reported
that state voluntary programs have varying characteristics.
About half the programs they surveyed in 1997 made no provision
for either monitoring nonpermanent cleanups or for overseeing
their accomplishment. Yet, all the programs gave some assurance
of relief from future state liability. (See ``State Voluntary
Programs Provide Incentives to Encourage Cleanups,'' GAO/RCED-
97-66, April 1997.)
We find that the variety in state programs is similar to
the variety in brownfield sites themselves. Nevertheless, we do
not seek to impose a uniform brownfields program upon the
states. Likewise, we do not seek to impose federal cleanup
requirements on the states. But for the same reason, a uniform
and severe prohibition on federal action is ill-advised. This
Committee has received testimony from citizens who have
numerous examples of states not responding to their requests
for assistance at these sites, most recently from Teresa B.
Mills from the Buckeye Environmental Network in Ohio. She
states, ``I believe that Ohio's sorry experience with the
[Voluntary Action Program] proves that minimum federal
standards for public participation, openness of information,
protective clean up standards, reliability of remedy and
adequacy of state and federal oversight must be guaranteed to
all Americans'' (Testimony of Teresa B. Mills Before the House
Finance and Hazardous Materials Subcommittee, August 4, 1999).
A federal safety net is essential to maintain the assurance to
our communities that there is some recourse should the state
lack the resources or the political desire to answer their
concerns. These citizens should not be told that their only
opportunity to obtain assistance for a danger to their
community will come with the next election cycle.
The few exceptions to the prohibition contained in H.R.
2580 are not tailored to the breadth of the prohibition,
particularly as the prohibition forecloses not just the EPA's
ability to act, but also a private party's ability to act. The
result is likely to be, at a minimum, protracted litigation as
the courts are forced to sort whether a citizen seeking action
under section 7002 of RCRA or a private party seeking
contribution under CERCLA, is allowed to bring the action.
Likewise, a citizen seeking EPA's assistance at a site can only
obtain that assistance if the requirements of one of these
exceptions is met.
For instance, a party seeking action will first have to
ascertain whether the site fits into any of the exceptions
contained in Sections 102(c)(1), (3), or (4) which pertain to
the nature of the site. As the universe of these excepted sites
is narrow, it is likely that his site will not fit into any of
those exceptions. There are only two possibilities left: that
the Governor of a state (presumably the state in which the
facility is located, but this is not clear) seeks assistance
from the Environmental Protection Agency to perform a response
action at the facility (see Section 102(c)((2)), or that the
release or threatened release at the site requires response
actions immediately to prevent or mitigate a public health or
environmental emergency and the state is not responding in a
timely manner (see Section 102(c)(5)). Both of these remaining
exceptions require the state to take action before the citizen
may exercise his rights. As well, a party who has performed a
cleanup with the expectation of contribution will then find,
after-the-fact, that he is penalized for his good deed. If he
has performed a responsible cleanup, his site will not present
an emergency, nor will it merit the EPA assistance that the
Governor must request. Thus, his right to contribution will be
extinguished.
The exception contained in section 102(c)(5) re-writes the
current standard that governs EPA's ability to act at sites not
listed on the National Priorities List. Currently, in sections
104 and 106 of CERCLA, and section 7003 of RCRA, EPA may act if
a release or threatened release may present an imminent and
substantial endangerment to the public health or welfare or the
environment. This is a well-recognized standard contained in
numerous other federal environmental laws such as the Clean Air
Act, the Safe Drinking Water Act, the Clean Water Act, as well
as state environmental laws. The states of Arizona, California,
Louisiana, Arkansas, New Mexico, Texas, and Michigan, for
instance, utilize this standard in their environmental laws.
H.R. 2580 prohibits action under CERCLA sections 104 and 106,
and also section 7003 of RCRA. The narrow exception to the
prohibition contained in section 102(c)(5) does not recognize
this well-settled principle of current law, but instead re-
writes the standard to include new and untested terms such as
``prevent or mitigate'' and ``environmental emergency.'' The
authority also is conditioned upon another, new test: whether
the state is responding in a timely manner. H.R. 2580 leaves to
interpretation by the courts the criteria for state response,
as well as what may be considered ``timely.''
There are no examples of EPA abusing these settled
principles of current law at brownfields sites. Not once has
EPA over-filed on a voluntary cleanup. Therefore, to the extent
that the drafters of H.R. 2580 are concerned that sections 104,
106 or 7003 have been interpreted by the courts in an expansive
manner, there is no example of such a case pertaining to a
brownfield site. In fact, the imminent and substantial
endangerment threshold is viewed by some who have testified
before the Committee as far too high a threshold for EPA action
at a brownfield site because a brownfield site may not meet
that threshold even without cleanup.
The few types of sites exempted from the prohibition
exacerbates the concern that this one-size-fits-all prohibition
is far too expansive for such a broad array of sites. The
prohibition will not apply to sites actually listed on the
National Priorities List. However, there are numerous sites
proposed for listing that may be as dangerous or even more
dangerous than those that have completed the scoring and
listing process. H.R. 2580 would prohibit EPA's listing of
those sites, even though the sites may be only a few weeks
short of final action for listing. A responsible party at the
site may then initiate a voluntary cleanup in order to trigger
the prohibition, but then abandon the cleanup once the
prohibition is triggered. Officials of about half of the states
surveyed by GAO in 1998 told GAO that their state's financial
capacity to clean up sites potentially eligible for the
National Priorities List, if necessary, is poor or very poor.
In addition, about 20% of these officials said that their
state's enforcement capacity (including resources and legal
authority) to compel responsible parties to clean up these
potentially eligible sites is fair to very poor. (See
``Unaddressed Risks At Many Potential Superfund Sites,'' GAO/
RCED-99-8, November 1998.) With this information, we see no
justification for foreclosing federal action at sites that are
likely to be very hazardous, and likely to be inadequately
addressed by state governments.
The exemption contained in section 102(c)(4) that pertains
to ``a release or threatened release to the extent that a
response action has been required pursuant to an administrative
order or judicial order or decree entered into by the United
States'' is also too narrowly crafted, especially with regard
to facilities such as RCRA facilities with permits that require
corrective action, or RCRA generator sites. Persons obligated
under the longstanding requirements of current law (as well as
their own permits) have incentives, under this provision, to
initiate a limited action under a voluntary cleanup program and
foreclose federal enforcement for their failure to adhere to
RCRA requirements. The result is unfairness to facilities that
have complied with law, as well as fewer actual cleanups.
H.R. 2580 Lacks Adequate Criteria To Ensure That State
Programs are Functional and Consistently Funded.--Section
102(b) of H.R. 2580 is entitled ``State Requirements,'' but no
actual requirements are imposed upon the state programs. The
section provides that the state must self-certify that its
program meets four general criteria, with no apparent review
mechanism for EPA or any other Agency to determine whether the
certification is valid. Moreover, if circumstances change with
regard to any of the criteria, there is no requirement that the
state re-certify or correct any failure to meet the criteria.
Yet, so long as this one-time certification is in place, the
broad prohibitions of section 102(c) apply.
The National Association of Local Government Environmental
Professionals (NALGEP), in its testimony before the Committee,
stated that liability authority over brownfields sites should
be granted only to state cleanup programs that can ensure
protection of public health and the environment. The
organization suggested criteria that should be demonstrated by
states desiring to play the lead role in brownfields liability
clarification. Further, the organization advocated EPA review
and approval of qualified states for lead brownfields
authority. These criteria include: mechanisms to ensure
adequate site assessments early in the process; technical
expertise, staff and enforcement authority; risk-based cleanup
standards that can be tied to reasonably anticipated land use,
established through an adequate public approval process;
institutional controls that are enforceable over time;
community information and involvement processes; commitment to
build the capacity of local government health and environmental
agencies; and adequate mechanisms to address unanticipated
cleanups or orphaned sites. (See Testimony of the National
Association of Local Government Environmental Professionals
Before the Subcommittee on Finance and Hazardous Waste, August
4, 1999.)
The Governors Concurrence Provision Is Inflexible and
Overbroad.--Section 103 of H.R. 2580 requires a Governor's
concurrence for adding any facility to the National Priorities
List. It is the policy of the EPA to routinely seek concurrence
from a Governor before a site is listed on the National
Priorities List. Since this policy was formalized in November
1995, Governors have opposed the listing of 31 sites and
supported the listing of 123 as of February 1999. In the past
four years since the EPA has instituted its administrative
policy to obtain the concurrence of a Governor prior to listing
a site, no site has been listed over the objection of a
Governor.
The current policy retains the flexibility for the EPA to
consider listing over a Governor's objection at sites where the
state could be a major responsible party, where the Agency for
Toxic Substances and Disease Registry public health advisory
listing criteria (40 CFR 300.425(c)(3)) are met or where sites
with community-identified conditions warrant listing.
During the Committee consideration of H.R. 2580,
Representative Barrett of Wisconsin offered an amendment to
allow the President to list a site over a Governor's objection
where a request for such listing is made by local government
authorities in a jurisdiction where the public health or
environment is affected by a release of hazardous substances.
If there was a dispute between the local government and the
Governor over the need to list a site on the NPL, the amendment
would allow the President to resolve the dispute. The
amendment, however, would not affect the current CERCLA
requirement that a site still must qualify, or score under the
hazard ranking system, for listing on the National Priorities
List. The amendment was rejected on a party-line vote.
The Democratic Alternative to H.R. 2580 Would Promote Brownfields
Redevelopment and Ensure A Federal Safety Net For Our Communities
In the Democratic alternative to H.R. 2580, we struck a
balance between providing greater assurance that the EPA would
not be able to second-guess a state-approved cleanup at will,
and maintaining a federal safety net to ensure that the
incentives to responsible cleanup remain. We set forth seven
general criteria for state programs that can be met by states
through law, regulation or administrative action, including
``providing for voluntary response actions that ensure adequate
site assessment and protect human health and environment.''
This criteria does not impose any specific cleanup standards
upon the states, but rather allows the states to maintain their
state standards. As suggested by NALGEP, we required the EPA to
review the programs and to approve their adherence to these
criteria on an expedited schedule. In order to assure the
maintenance of responsible programs, we require the state to
report annually whether its program continues to be consistent
with the criteria.
Under the Democratic alternative, a cleanup that takes
place under an approved program receives the benefit of
assurance that the EPA will not list a site on the National
Priorities List while substantial and continuous response
activities are being conducted under a qualified state program,
or after those activities are certified complete by the state.
In addition, the EPA will not cost recover against any party
associated with the site so long as substantial and continuous
voluntary response activities are taking place under a
qualified state program, or after those activities are
certified complete by the state. Unlike H.R. 2580, by requiring
substantial and continuous response activities, or completion,
the Democratic alternative will not undermine incentives for
the completion of cleanup.
As suggested by community witnesses such as Ms. Mills, the
Clinton Administration, NALGEP and others, we maintain a
federal safety net through narrow exceptions to the prohibition
against EPA cost recovery. In one of the re-openers, we
preserve a well-settled legal standard by allowing the
Administrator to act if she determines that a release or
threatened release may present an imminent and substantial
endangerment to the public health or welfare or the
environment. We recognize other conditions at a site that may
not reach this threshold but may nevertheless require action on
the part of the Administrator, such as conditions that were
unknown at the site that render the cleanup unprotective, or a
change in the use of the site which renders the cleanup
unprotective.
Unlike H.R. 2580, the scope of sites affected by the
enforcement prohibition does not include a facility proposed
for listing on the National Priorities List, nor any facility
that is subject to corrective action, or to which a corrective
action permit or order has been issued or modified to require
the implementation of corrective measures. Thus, the Democratic
alternative does not foreclose federal action at the most
hazardous sites in the nation, some of which have been proposed
for listing on the National Priorities List but have not yet
been through the final paperwork for listing, or which are
subject to longstanding requirements of RCRA for performance of
corrective action. Although federal action is not foreclosed at
these sites, the Democratic alternative does not prohibit state
cleanup at these sites, nor cooperative efforts between the
states and the EPA.
The Democratic alternative also grandfathers existing
agreements between the states and the United States, as well as
those between the EPA and private parties, and encourages those
state-by-state or site-by-site agreements in the future. As
brownfields, and brownfields programs vary so widely, the EPA
and states already have recognized the value of entering into
discussions on a specific site, or to examine the state's
entire program. The outcome of these discussions is an
agreement between the state and EPA in which the state agrees
to maintain its program and EPA agrees to limit its involvement
in state cleanups. A number of states including Texas,
Michigan, Wisconsin, Missouri, Minnesota, Illinois, Colorado,
Rhode Island, Indiana, Oklahoma, Maryland, and Delaware have
entered into Memoranda of Agreement with EPA. These agreements
contain varying assurances depending on the state program or
the experience the state may have had with its program. The
Democratic alternative recognizes that the cooperative effort
between the states and EPA is an effective means by which the
developers and sellers of brownfield properties can obtain the
``certainty'' they may need to pursue a more extensive cleanup
or otherwise risky endeavor.
John D. Dingell.
Edolphus Towns.
Ted Strickland.
Sherrod Brown.
Peter Deutsch.
Anna Eshoo.
Tom Sawyer.
Bobby L. Rush.
Gene Green.
Bart Stupak.
Ron Klink.
Frank Pallone, Jr.
Karen McCarthy.
Tom Barrett.
Bill Luther.
Diana DeGette.
Lois Capps.
Ed Markey.
Elliot L. Engel.
Henry A. Waxman.
Albert Wynn.
Rick Boucher.